22:0647(71)CA - HQ, Army, Washington, DC and Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, MO and NAGE R14-32, SEIU -- 1986 FLRAdec CA

 22 FLRA No. 71
 
 HEADQUARTERS, DEPARTMENT OF THE ARMY
 WASHINGTON, D.C. AND U.S. ARMY TRAINING
 CENTER ENGINEER AND FORT LEONARD WOOD
 FORT LEONARD WOOD, MISSOURI
 Respondents
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, R14-32, SEIU/AFL-CIO
 Charging Party
 
                                            Case No. 7-CA-40084
 
                            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
 alleges in its complaint that the Respondents committed unfair labor
 practices in violation of section 7116(a)(1), (5), and (8) of the
 Federal Service Labor-Management Relations Statute (the Statute) /1/ by
 failing and refusing to comply with an interim arbitration award and a
 supplement to that award, by refusing to consult or negotiate in good
 faith with the Union, and by interfering with its employees' exercise of
 their rights under the Statute.  Although both the General Counsel and
 the Charging Party have submitted briefs, only the General Counsel's
 brief was timely filed and will be considered.  The Respondents did not
 submit a brief.
 
                              II.  Background
 
    The National Association of Government Employees, R14-32,
 SEIU/AFL-CIO (NAGE or Union), is the exclusive representative of certain
 of the Respondents' employees.  At all times material to this matter,
 NAGE and Respondent Fort Leonard Wood have been parties to a collective
 bargaining agreement providing for binding arbitration as part of the
 grievance procedure.
 
    On January 30, 1980, Respondent Fort Leonard Wood removed a unit
 employee for alleged misconduct.  The dispute eventually reached
 arbitration under the parties' collective bargaining agreement.  The
 Arbitrator issued an interim award on May 20, 1983, ordering the Union
 and the employee to elect within 35 days whether to obtain a psychiatric
 evaluation of the employee.  The Arbitrator further ordered that, in any
 event, a written report should be submitted to him within 90 days,
 setting forth the arrangements for the employee's evaluation or the
 reasons for the parties' failure to reach an agreement.  The Arbitrator
 retained jurisdiction to render a final award.
 
    Respondent Fort Leonard Wood filed an "Objection to Interim Award,
 dated 20 May, 1983, and Request for Reconsideration" on July 1, 1983.
 The objection concerned the substance of the interim award.  The
 Arbitrator then issued a supplement to the interim award on August 12,
 1983.  The supplement essentially affirmed the initial award and
 required that the written report mandated by the initial award be
 submitted not later than October 11, 1983.
 
    Respondent Fort Leonard Wood notified NAGE and the Arbitrator on
 September 20, 1983, that it had been instructed by Respondent
 Headquarters not to recognize the authority of an arbitrator to issue an
 interim award, and to decline to participate further in the procedures
 specified in the interim award.  NAGE attempted to comply with the
 procedures on October 27, 1983, but the Respondent has refused.  No
 final award has been issued.
 
                   III.  Position of the General Counsel
 
    First, the General Counsel contends that the interim award and its
 supplement constitute final interlocutory awards because they were not
 appealed by Respondent Fort Leonard Wood or Respondent Headquarters, and
 that the Respondents' failure and refusal to comply with those awards,
 as required under section 7121, constitutes a violation of section
 7116(a)(8) by both.  The General Counsel concedes that the Authority
 generally will not consider such interlocutory matters, but it urges the
 Authority to do so here because there are no other means of resolving
 the issue of the Respondents' duty to comply with the interim awards.
 
    The General Counsel also asserts in its complaint that the
 instruction by Respondent Headquarters to Respondent Fort Leonard Wood
 not to comply with the interim award and its supplement, coupled with
 the action of Fort Leonard Wood in following that instruction,
 constitutes a violation of section 7116(a)(1).  It argues that, since
 Fort Leonard Wood was the level of exclusive recognition, the
 involvement of Headquarters in the decision not to comply with the
 interim awards resulted in improper interference with the collective
 bargaining relationship.
 
    Finally, the General Counsel contends that the Respondents' failure
 and refusal to comply with the interim awards also violates section
 7116(a)(5).  It argues that such failure and refusal "injected a new
 term and condition into the bargaining relationship without affording
 the Union prior notice and an opportunity to engage in
 pre-implementation bargaining" in good faith.
 
                               IV.  Analysis
 
    In Department of Labor, Employment Standards Administration/Wage and
 Hour Division, Washington, D.C., 10 FLRA 316 (1982), the Authority
 reconsidered its previous decisions on whether a refusal to participate
 in arbitration proceedings under a negotiated grievance procedure is
 inconsistent with section 7121 of the Statute and consequently violates
 section 7116(a)(1) and (8) or (b)(1) and (8), as applicable.  The
 Authority concluded that neither the language of section 7121 nor its
 legislative history "provides a basis for excusing (a) party from
 participating in the mechanism mandated by Congress in section 7121 for
 resolving grievances not satisfactorily settled by the parties at
 earlier stages of the negotiated grievance procedure." 10 FLRA at 320.
 The Authority noted that a refusal to participate in arbitration
 proceedings could result in the hindrance or obstruction of grievance
 resolution by binding arbitration, contrary to the mandate and intent of
 Congress in enacting section 7121.  The Authority therefore ruled that a
 refusal by a party to participate in "the procedures for the settlement
 of grievances" conflicts with section 7121 of the Statute.
 
    This principle was subsequently applied in Department of the Army,
 83rd United States Army Reserve Command, Columbus, Ohio, 11 FLRA 55
 (1983), where the parties had presented their positions to the
 arbitrator on whether there first should be a separate hearing on a
 question of the arbitrability of the grievance.  When the arbitrator
 decided not to hold a separate hearing, the agency notified the
 arbitrator and the union that it refused to participate in the
 proceeding and that it considered the hearing cancelled.  On the basis
 of the Employment Standards Administration case, the Authority
 determined that the agency had failed to comply with the requirements of
 section 7121 and therefore had violated section 7116(a)(1) and (8) of
 the Statute.  The Authority held that, whatever the agency's position on
 the propriety of the arbitrator's procedural determination, the agency
 was obligated to proceed to arbitration and, if dissatisfied with the
 award, take the appropriate action of filing exceptions to the award
 under section 7122(a) of the Statute.  83rd U.S. Army Reserve Command,
 11 FLRA 56 n.1.
 
    Although both the Employment Standards Administration and the 83rd
 U.S. Army Reserve Command cases involved the refusal to participate in
 any proceedings before the arbitrators, we find in this case that the
 refusal to continue to participate in the proceedings before the
 Arbitrator likewise failed to comply with the requirements of section
 7121.  As similarly concluded in Employment Standards Administration,
 neither the language of section 7121 nor its legislative history
 provides a basis for excusing a party's continued participation in the
 procedures for the settlement of grievances.  Further, in this case the
 Respondents' refusal to continue to participate in the proceedings
 before the Arbitrator has resulted in the obstruction of the resolution
 of a grievance by binding arbitration, contrary to the mandate and
 intent of Congress.  See Employment Standards Administration at 321.  As
 the Authority indicated in 83rd U.S. Army Reserve Command, whatever the
 position of the Respondents on the propriety of the Arbitrator's interim
 awards, the Respondents were obligated to proceed with the arbitration
 proceedings absent appropriate action, if any, to challenge those awards
 immediately.  /2/
 
    We note that the Respondents admitted in their joint answer to the
 General Counsel's complaint, and then also stipulated, that Respondent
 Headquarters "instructed" Respondent Fort Leonard Wood not to comply
 with the Arbitrator's interim awards, and Fort Leonard Wood followed
 that instruction.  We note further that, before receiving Headquarter's
 instruction, Fort Leonard Wood had participated actively in the
 arbitration proceeding, as discussed above.
 
    The Authority has repeatedly held that, when agency management at a
 higher level prevents agency management at a subordinate level of
 exclusive recognition from complying with its obligations under the
 Statute by "directive," "requirement," or "direction," the higher-level
 management entity violates section 7116(a)(1) and (8) of the Statute.
 /3/ The Authority has held further that, where the subordinate entity is
 thus left with no discretion to comply with its statutory obligations,
 that entity will not also be found to have violated section 7116(a).
 /4/
 
    Consistent with this precedent, we find here that Respondent
 Headquarters' "instruction" to Respondent Fort Leonard Wood not to
 comply with the Arbitrator's interim awards constitutes a violation of
 section 7116(a)(1) and (8) on Headquarters' part.  We view the
 Respondents' use of the term "instruction" as the functional equivalent
 of the terms "directive," "requirement," and "direction," /5/ which have
 been used most frequently in prior Authority decisions regarding
 "interference" violations under section 7116(a)(1).  /6/ Further
 Respondent Headquarters' instruction not to comply with the Arbitrator's
 interim awards afforded Respondent Fort Leonard Wood no discretion to do
 otherwise, and rendered its non-compliance with the awards merely
 ministerial in nature.  We therefore find that Fort Leonard Wood's
 action in following Headquarters' instruction cannot be deemed to
 constitute an independent violation of section 7116(a)(1) and (8) by
 Fort Leonard Wood.  We shall therefore dismiss that allegation.
 
    Finally, although the Respondents admitted that they refused and
 failed to comply with the Arbitrator's interim awards, we cannot find
 that, in doing so, they also refused and failed to consult or negotiate
 with the Union in good faith, as alleged.  The General Counsel argues in
 support of this allegation that, by not complying with the interim
 awards, the Respondents "injected a new term and condition into the
 bargaining relationship without affording the Union prior notice and an
 opportunity to engage in pre-implementation bargaining." We find that
 the Respondents, by their actions, did not establish new conditions of
 employment requiring negotiation, but rather refused to proceed further
 with the arbitration process.  Since these circumstances created no
 bargaining obligation, we shall dismiss the section 7116(a)(5)
 allegation as to both Respondents.
 
                                Conclusion
 
    Based on the above analysis, we conclude that Respondent Headquarters
 has violated section 7116(a)(1) and (8) of the Statute, as alleged, but
 that Respondent Fort Leonard Wood has not.  We conclude additionally
 that neither of the Respondents has been shown to have violated section
 7116(a)(5), as further alleged.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority ORDERS that the
 Department of the Army Headquarters in Washington, D.C., shall:
 
    1.  Cease and desist from:
 
    a.  Instructing Fort Leonard Wood not to comply with the Arbitrator's
 interim awards or otherwise interfering with the pending arbitration
 regarding a grievance filed by the National Association of Government
 Employees, R14-32, SEIU/AFL-CIO, the employees' exclusive representative
 at the Fort Leonard Wood, Missouri, facility, in connection with the
 removal of a unit employee, contrary to the requirements of section 7121
 of the Statute.
 
    b.  In any like or related manner interfering with, restraining, or
 coercing 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.  Upon the request of the National Association of Government
 Employees, R14-32, SEIU/AFL-CIO, permit Fort Leonard Wood to comply with
 the Arbitrator's interim awards and otherwise resume full participation
 in the arbitration proceedings regarding the removal of the unit
 employee.
 
    b.  Post at Headquarters and at its Fort Leonard Wood, Missouri,
 facility, copies of the attached Notice, on forms furnished by the
 Federal Labor Relations Authority.  Upon receipt of such forms, they
 shall be signed personally by the Administrator of the agency, 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.  Notify the Regional Director of 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.
 
    IT IS FURTHER ORDERED that the allegation in the complaint regarding
 Fort Leonard Wood's violation of section 7116(a)(1), (5), and (8) of the
 Statute is DISMISSED, as is the allegation regarding Army Headquarters'
 violation of section 7116(a)(5) of the Statute.
 
    Issued, Washington, D.C. July 21, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7116 provides as follows:
 
    Section 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency --
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                . . . . . . . . .
 
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
                . . . . . . . . .
 
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
    (2) The Authority notes in this regard that the interim awards relate
 to a removal action as to which exceptions may not be filed with the
 Authority under the Statute.  Thus, whatever action might appropriately
 have been available to challenge the interim awards would necessarily
 have involved the Office of Personnel Management under 5 U.S.C. Section
 7703(d) which effectively provides that, in certain circumstances, the
 Director of OPM may obtain judicial review of any final order or
 decision of an arbitrator in these types of matters.
 
    (3) See, for example, U.S. Department of Justice and Department of
 Justice Bureau of Prisons (Washington, D.C.) and Federal Correctional
 Institution (Danbury, Connecticut), 20 FLRA No. 5 (1985), enforced, 792
 F.2d 25 (2d Cir. 1986);  Department of Health and Human Services, Region
 II, 15 FLRA 710, 711 n.2 (1984);  Department of the Interior, Water and
 Power Resources Service, Grand Coulee Project, Grand Coulee, Washington,
 9 FLRA 385, 388 (1982).
 
    (4) See cases cited in footnote 3 above.
 
    (5) A superior's "instruction" is, by definition, the same as a
 superior's "direction" or "order" in allowing for no course of action
 but to follow the instruction.  See WEBSTER'S NINTH NEW COLLEGIATE
 DICTIONARY (1985).
 
    (6) See cases cited in footnote 3 above.
 
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION 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 instruct Fort Leonard Wood not to comply with the
 Arbitrator's interim awards or otherwise interfere with the pending
 arbitration regarding a grievance filed by the National Association of
 Government Employees, R14-32, SEIU/AFL-CIO, the employees' exclusive
 representative at the Fort Leonard Wood, Missouri, facility, in
 connection with the removal of a unit employee, contrary to the
 requirements of section 7121 of the Statute.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL, upon the request of the National Association of Government
 Employees, R14-32, SEIU/AFL-CIO, permit Fort Leonard Wood to comply with
 the Arbitrator's interim awards and otherwise resume full participation
 in the arbitration proceedings regarding the removal of the unit
 employee.
                                       (Agency)
 
    Dated:  . . .  By:  (Signature and Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region VII, whose address is:  535 16th Street, Suite 310,
 Denver, CO 80202 and whose telephone number is (303) 837-5224.