22:0200(20)CA - Army Adjutant General Publications Center, St. Louis, MO and AFGE Local 2761 -- 1986 FLRAdec CA
[ v22 p200 ]
The decision of the Authority follows:
22 FLRA No. 20 UNITED STATES ARMY ADJUTANT GENERAL PUBLICATIONS CENTER, ST. LOUIS, MISSOURI Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2761 Charging Party Case NO. 7-CA-40064 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority, in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties who have agreed that no material issue of fact exists. The General Counsel filed a brief for the Authority's consideration. The complaint alleges that the Respondent, the United States Army, Adjutant General Publications Center, St. Louis, Missouri, violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with an arbitration award which resolved a grievance filed under the terms of the negotiated grievance procedure between the Respondent and the American Federation of Government Employees, AFL-CIO, Local 2761 (the Union). The arbitrator's award dealt with the termination of the Union president. This case raises a question which has not been addressed previously by the Authority -- whether the Authority has jurisdiction to review in an unfair labor practice proceeding the alleged noncompliance with an arbitration award involving a section 7121(f) subject matter (a termination), where it would not have jurisdiction under section 7122 of the Statute to review the substance of the award. II. Facts A grievance over the termination of Union president Dominic J. Licavoli by the Respondent for striking a supervisor was filed pursuant to the parties' negotiated negotiated grievance procedure and the matter was eventually submitted to arbitration. On August 5, 1983, Arbitrator Peter J. Maniscalco issued his decision and award setting aside Licavoli's termination on the ground that he had been provoked. On August 25, 1983, the Respondent sent the Arbitrator a letter requesting that he clarify his award. Specifically, the Respondent asked the Arbitrator to "reconsider your arbitration decision and modify your decision to consider what lesser penalty other than removal, if any, should be imposed upon the grievant." The Arbitrator responded in a letter dated August 30, 1983, in which he explained that he " . . . did consider the possibility of mitigation but I did not grant that, due to the fact that I felt this was a case where provocation was present and therefore, to have imposed any penalty would have been unjust." Notwithstanding the above, on October 17, 1983, the Respondent informed Licavoli that he was to be suspended for 60 days for the conduct that had originally led to his termination. III. Positions of the Parties /1/ The General Counsel argues that the Respondent failed to comply with the Arbitrator's award when it informed Licavoli that he would be suspended for 60 days despite the Arbitrator's decision rejecting the imposition of any disciplinary action. Further, citing Authority precedent, the General Counsel argues that the Authority has jurisdiction to review an agency's noncompliance with an arbitrator's award involving an adverse action under 5 U.S.C. Section 7512 when, as here, the agency has refused to comply with that award and has not sought to appeal it through the appropriate statutory procedures. IV. Analysis A. Statutory scheme for review under section 7122(a) Under section 7122(a) of the Statute, either party to arbitration may file exceptions with the Authority to an arbitrator's award other than an award relating to a matter described in section 7121(f). /2/ If a party fails or refuses to comply with an arbitrator's award following the Authority's denial of exceptions filed under section 7122(a), or if no timely exceptions to such award are filed but either party thereafter fails or refuses to comply with the award, the Authority will find that such conduct constituted an unfair labor practice. In such cases, the Authority has found that the party is failing to comply with the provisions of section 7122(b) /3/ in violation of section 7116(a)(1) and (8) of the Statute. /4/ Department of Health and Human Services, Region II, 15 FLRA 710 1984); sub nom. United States Marshals Service v. FLRA, 778 F.2d Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1981), affirmed sub nom. Department of Justice Bureau of Prisons (Washington, D.C.) and Federal Correctional Institution (Danbury, Connecticut), 20 FLRA NO 5 (1985), enforced sub nom. U.S. Department of Justice and Department of Justice, Bureau of Prisons, et al. v. FLRA, NOS. 85-4167 and 85-4179 (2nd Cir. May 30, 1986). B. Statutory scheme for review under section 7121(f) Where the arbitrator's award involves a matter covered by section 7121(f), such as a termination, the Respondent is precluded by section 7122(a) of the Statute from filing exceptions to the award with the Authority. /5/ Under section 7121(e) of the Statute, /6/ matters involving adverse actions pursuant to section 7512 of title 5 of the United States Code may be raised under the appellate procedures of the Merit Systems Protection Board (MSPB) or under the parties' negotiated grievance procedure if such matters have not been excluded. Where, as here, the latter avenue is pursued and the matter eventually goes to arbitration, the arbitrator is to be governed by section 7701(c)(1) of title 5, United States Code, pertaining to the appellate procedures of MSPB. In addition, section 7121(f) of the Statute states that section 7703, which deals with judicial review of final MSPB decisions, also applies to arbitration awards pertaining to matters covered under sections 4303 and 7512. The courts have accepted review of an arbitrator's decision under section 7121(f). /7/ Thus, it appears clear that matters covered by sections 7512 and 4303 were set off from other arbitration issues to assure conformity between arbitrators and the MSPB. In the House-Senate Conference Report No. 95-1717, October 5, 1978, the Conferees adopted the Senate's bill requiring arbitrators to "follow the same rules governing burden of proof and standard of proof that govern adverse actions before the Board . . . in order to promote consistency in the resolution of these issues, and to avoid forum shopping." /8/ Pursuant to this framework for judicial review set forth in section 7121(f) and section 7703, agencies adversely affected or aggrieved by the arbitrator's award in these matters are not entitled to obtain judicial review. However, section 7703(d) provides that the Director of the Office of Personnel Management (OPM) may seek to obtain review "if the Director determines, in his discretion, that the Board (or arbitrator) erred in interpreting a civil service law, rule, or regulation affecting personnel management and that the Board's (or arbitrator's) decision will have a substantial impact on a civil service law, rule, regulation, or policy directive." Where OPM seeks review, the granting of the petition is at the discretion of the U.S. Court of Appeals for the Federal Circuit. /9/ In the instant case, only the Director of OPM and not the Respondent, as the employing agency, was entitled to seek judicial review. The courts have held "that the Director of the OPM loses his right to appeal final orders or decisions of the MSPB and arbitrators unless he files a petition for review within thirty days of the time he is put on notice of those decisions." Devine v. White, 697 F.2d 421, 430 (D.C. Cir. 1983). Since such a petition for review was not filed within the statutory time limit in this case (section 7703(b)(1)), the award must be considered final and binding and the only remaining issue here is whether the Authority has jurisdiction over matters of compliance with the award. C. Compliance As previously noted by the Authority, Congress has established a mechanism for challenging the propriety of arbitration awards covered by section 7122(a) of the Statute. In applying section 7122(b), where no exceptions have been filed, the Authority has held that it will not review the substance of the arbitrator's award in the unfair labor practice proceeding, but will find that noncompliance with the award is a violation. See Wright-Patterson Air Force Base, and United States Marshals Service, cited previously. If, under section 7122(b), a party fails to file exceptions during the 30 day period following the award, such award becomes final and binding and the Authority will not review the merits of the award in a subsequent unfair labor practice proceeding. The Authority stated that to allow for such a review would circumvent Congressional intent with respect to statutory review procedures and the finality of arbitration awards. See also Department of Defense, Department of the Navy, United States Marine Corps, United States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA 686 (1984). While it is clear that the Authority does not have jurisdiction to review exceptions to an arbitrator's award falling within section 7121(f) of the Statute, the question of jurisdiction over matters of compliance with such an award in an unfair labor practice proceeding has not been previously addressed by the Authority. However, like the Authority's decisions under section 7122(b) of the Statute, it seems clear that a final and binding arbitration award in an employee's favor relating to any of the matters covered by section 4303 or section 7512 could be enforced through the unfair labor practice procedures of the Statute without reference to the merits of the award. In the Authority's view, once such an award has become final and binding, regardless of the subject matter, the Authority's review concerning matters of compliance in an unfair labor practice proceeding without reference to the substance of the award does not conflict with Congressional intent or the specific statutory procedures for review as to the merits of the award. The Authority notes that there is no indication in the Statute or its legislative history that awards which involve section 7121(f) matters, once they have become final, are any less binding than awards under section 7122(b) which are reviewable by the Authority. Indeed, the Conferees supported the finality of arbitration awards. In this regard, as stated by the Committee on Conference in its Report which accompanied the bill ultimately enacted and signed into law: /10/ The House provides that if no exception to an arbitrator's award is filed with the Authority, the award "shall be final and binding" (section 7122(b)). The Senate contained no comparable provision. The conferees adopted the House provision. The intent of the House in adopting this provision was to make it clear that the awards of arbitrators, when they become final, are not subject to further review by any other authority or administrative body, including the Comptroller General. (Emphasis added.) Moreover, even though the first sentence of section 7122(b) refers to a failure to file an exception under subsection (a) which subsection specifically excludes section 7121(f) matters, there is no indication given the statutory scheme that the second sentence, "(a)n agency shall take the actions required by an arbitrator's final award," should not appropriately apply also to those awards that become final by reference to other law such as 5 U.S.C. Section 7703(d). In other words, once an award becomes final and binding, any substantive differences or differences in review forum become meaningless. Thus, in the Authority's view, the statutory limitations on review of awards relating to section 7121(f) only extend to substantive review of such awards and, where an arbitration award is final, Authority review of compliance with the award does not conflict with the concerns expressly stated by Congress. Therefore, the Authority finds, in the circumstances of this case, that inasmuch as the award in question became final and binding when no timely appeal was filed by the Director of OPM under section 7703(d) of title 5, United States Code, and review of compliance would not involve a determination concerning the merits of the award, the Authority has jurisdiction to order compliance with the arbitrator's award in this unfair labor practice proceeding. Having resolved the threshold jurisdictional issue, the Authority further finds that the Respondent's refusal to comply with Arbitrator Maniscalco's award dated August 5, 1983, interferes with, restrains and coerces bargaining unit employees in the exercise of their rights established under the Statute, in violation of section 7116(a)(1). /11/ In this regard, the Authority notes that it is well established that an employee's right to file and process grievances under a collective bargaining agreement is protected activity within the meaning of section 7102 of the Statute, /12/ and that management's actions which tend to interfere with or restrain the exercise of such rights constitutes unlawful interference in violation of section 7116(a)(1) of the Statute. Social Security Administration, Baltimore, Maryland, 18 FLRA NO. 33 (1985); Internal Revenue Service and Brooklyn District Office, 6 FLRA 642 (1981); United States Department of Treasury, Bureau of Alcohol, Tobacco and Firearms, Chicago, Illinois, 3 FLRA 724 (1980). Thus, an agency's failure to comply with an arbitrator's award would, in effect, prevent an employee from exercising such protected activity and constitute an unlawful interference with an employee's right to pursue a grievance in violation of section 7116(a)(1) of the Statute. V. Conclusion The Authority has considered all of the facts and circumstances of this case, including the positions of the parties, and concludes as noted above that the Respondent violated section 7116(a)(1) of the Statute by refusing to comply with Arbitrator Maniscalco's award dated August 5, 1983. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the United States Army, Adjutant General Publications Center, St. Louis, Missouri shall: 1. Cease and desist from: (a) Failing and refusing to fully implement Arbitrator Peter J. Maniscalco's arbitration award rendered on August 5, 1983 by imposing a 60 day suspension on Dominic J. Licavoli for the conduct that the Arbitrator found was provoked and for which no penalty should have been imposed. (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Fully comply with Arbitrator Peter J. Maniscalco's August 5, 1983 arbitration award by revoking the 60 day suspension leveled against Dominic J. Licavoli for the conduct that the Arbitrator found was provoked and for which no penalty should have been imposed. (b) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander of the United States Army Adjutant General Publications Center, St Louis, Missouri, or a designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., June 23, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Respondent did not file a brief for the Authority's consideration. (2) Section 7121(f) of the Statute provides: Section 7121. Grievance procedures . . . . . . . (f) In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the (Merit Systems Protection) Board. In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems and which an aggrieved employee has raised under the negotiated grievance procedure, judicial review of an arbitrator's award may be obtained in the same manner and on the same basis as could be obtained of a final decision in such matters raised under applicable appellate procedures. (3) Section 7122(b) provides: (b) If no exception to an arbitrator's award is filed under subsection (a) of this section during the 30-day period beginning on the date the award is served on the party, the award shall be final and binding. An agency shall take the actions required by an arbitrator's final award. The award may include the payment of backpay (as provided in section 5596 of this title). (4) Section 7116 provides in pertinent part: Section 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency -- (10) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . . . . (8) to otherwise fail or refuse to comply with any provision of this chapter. (5) See, for example, National Weather Service Employees Organization (MEBA, AFL -- CIO) and National Weather Service, Western Region, 17 FLRA 622 (1985); U.S. Army Missile Command, Redstone Arsenal, Alabama and American Federation of Government Employees, AFL -- CIO, Local Union 1858, 17 FLRA 377 (1985); and National Treasury Employees Union, Chapter 12 and Internal Revenue Service, Birmingham District, 17 FLRA 358 (1985). (6) Section 7121(e)(1) and (2) of the Statute provides: Section 7121. Grievance procedures (e)(1) Matters covered under sections 4303 and 7512 of this title which also fall within the coverage of the negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised either under the appellate procedures of section 7701 of this title or under the negotiated grievance procedure, but not both. Similar matters which arise under other personnel systems applicable to employees covered by this chapter may, in the discretion of the aggrieved employee, be raised either under the appellate procedures, if any, applicable to those matters, or under the negotiated grievance procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise a matter either under the applicable appellate procedures or under the negotiated grievance procedure at such time as the employee timely files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing in accordance with the provisions of the parties' negotiated grievance procedure, whichever event occurs first. (2) In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, an arbitrator shall be governed by section 7701(c)(1) of this title, as applicable. (7) See, for example, Devine v. Levin, 739 F.2d 1567 (Fed. Cir. 1984); Devine v. Brisco, 733 F.2d 867 (Fed. Cir. 1984); Devine v. Sutermeister, 724 F.2d 1558 (Fed. Cir. 1983); and Devine v. White, 697 F.2d 421 (D.C. Cir. 1983). (8) Conference Report on S.2640, Civil Service Reform Act of 1978, H.R. Rep. NO. 1717, 95th Cong., 2d Sess. 157 (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 2860, 2891. (9) Civil Service Reform Act, 5 U.S.C. Sections 7703(b)(1) and 7703(d) (1982 & Supp. II 1984). (10) Conference Report on S. 2640, supra note 8, at 158. (11) The General Counsel failed to allege a section 7116(a)(8) violation in the complaint, and therefore we do not decide whether the Respondent also committed such a violation. Further, in view of the above conclusion, the Authority finds it unnecessary to pass upon whether the Respondent also violated section 7116(a)(5) of the Statute. (12) Section 7102 provides in pertinent part: Section 7102. Employees' rights Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right. APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail and refuse to fully implement Arbitrator Peter J. Maniscalco's August 5, 1983 arbitration award by imposing a 60 day suspension on Dominic J. Licavoli for the conduct that the Arbitrator found was provoked and for which no penalty should have been imposed. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute. WE WILL fully comply with Arbitrator Peter J. Maniscalco's August 5, 1983 arbitration award by revoking the 60 day suspension leveled against Dominic J. Licavoli for the conduct that the Arbitrator found was provoked and for which no penalty should have been imposed.