23:0556(77)CO - AFGE Local 3511 and VA, Audie L. Murphy Memorial Veterans Hospital, San Antonio, TX -- 1986 FLRAdec CO
[ v23 p556 ]
23:0556(77)CO
The decision of the Authority follows:
23 FLRA No. 77
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3511, AFL-CIO
Respondent
and
VETERANS ADMINISTRATION
AUDIE L. MURPHY MEMORIAL VETERANS
HOSPITAL, SAN ANTONIO, TEXAS
Charging Party
Case No. 6-CO-50043
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 Union violated section
7116(b)(1), (5) and (8) of the Statute by failing and refusing to comply
with the provisions of section 7122 of the Statute by refusing to fully
comply with an arbitrator's award to which exceptions were filed and
which had been subsequently denied by the Authority.
II. The Facts
The Veterans Administration and the American Federation of Government
Employees, AFL-CIO have been parties to a master agreement covering a
nationwide consolidated unit, including employees of the Audie L. Murphy
Memorial Veterans Hospital, San Antonio, Texas (Activity). The Activity
has recognized the Respondent Union as the local representative of AFGE
for the purposes of collective bargaining and representation of a unit
of Activity employees.
On October 5, 1983, the Activity filed a grievance alleging that the
Respondent Union had violated Articles 6 and 24 of the master agreement
by, among other things, issuing a news release which made libelous and
defamatory attacks upon management and employees of the facility
concerning the disposal of certain material. On June 25, 1984,
Arbitrator Harry L. Johnson issued an award finding that the Union had
violated the agreement as alleged and sustaining the Activity's
grievance. As a remedy, the Arbitrator directed the Union to take the
following actions:
1. Purchase a one-half page ad in all San Antonio daily
newspapers stating clearly and without ambiguity, a) that what was
found in the autopsy room did not contain any human tissue; b)
that the action taken by the officials of AFGE was in violation of
the VA/AFGE Master Agreement; and c) that in the future, the
terms/conditions of the contract will be followed.
2. Write a letter addressed to all employees retracting all
allegations in this case and post the letter with a copy of the
advertisement on both bulletin boards used by AFGE for a period of
sixty (60) days.
3. Write a letter to Management committing President Garcia
and Vice President Fenstermacher and Local 3511 to the provisions
of the VA/AFGE Master Agreement with the assurance that, in the
future, all matters that concern the Local will be brought to the
attention of Management in accordance with the Master Agreement.
4. Forward a copy of the letters in 2 & 3 along with a copy of
the paid advertisement to Television Stations Channels 4, 5, and
12, requesting them to announce that Union's charges which they
broadcast were erroneous.
5. Complete the above tasks on or before July 16, 1984, at
4:30 p.m. with copies to Management.
The Respondent Union filed timely exceptions to the Arbitrator's
award with the Authority alleging that the award was contrary to law,
including the Constitution of the United States, and the master
agreement. The Activity filed an opposition, contending that the
Union's arguments constituted nothing more than disagreement with the
Arbitrator's findings of fact and his interpretation and application of
the agreement. The Authority found, after careful consideration of the
record, including the submissions of the parties, that the Union had
failed to establish that the arbitrator's award was deficient on any of
the grounds set forth in section 7122(a) of the Statute. Accordingly,
the Authority denied the Union's exceptions. Audie L. Murphy Memorial
Veterans Hospital, Veterans Administration, San Antonio, Texas and
American Federation of Government Employees, Local 3511, San Antonio,
Texas, Case No. 0-AR-812, issued April 23, 1985.
On June 17, 1985, the Activity requested the Respondent Union to
comply with the arbitrator's award by July 19, 1985. The Union's
President and Vice President advised the Activity that the Union would
not comply with that portion of the award which required the Union to
purchase ads in the daily papers and to contact the local television
news media. The Union asserted that the arbitrator's award violated its
constitutional rights. The Union has failed and refused and continues
to fail and refuse to comply with the arbitrator's award.
III. Positions of the Parties
The General Counsel's position is that the Respondent Union's refusal
to implement the arbitration award is violative of section 7116(b)(1),
(5) and (8) of the Statute. The General Counsel asserts that the
Respondent Union presented the same arguments regarding the
unconstitutionality of the arbitration award to the Authority in its
exceptions to the award. The Authority considered the Union's
exceptions and rejected them. Since the Union's exceptions to the
arbitration award were dnied by the Authority, the award is final and
binding and the Union is required to implement the award pursuant to
section 7122 of the Statute. Thus, the Union's refusal to do so is
violative of the Statute.
Neither the Union nor the Activity filed briefs or arguments in the
case.
IV. Analysis
In this case, there is no question as to whether the Respondent Union
has complied with the arbitrator's award. The Respondent Union admits
that it has not done so. The Union defends its failure and refusal to
comply with the award by reiterating an argument previously made in an
exception that was considered and denied by the Authority.
It is well established that a party to an arbitrator's award must
implement such an award, when timely filed exceptions to the award have
been denied by the Authority, and that the failure or refusal by a party
to implement such an award constitutes a violation of section 7116(a)(1)
and (8) of the Statute. See Department of the Treasury, United States
Customs Service, New York Region, New York, New York, 21 FLRA No. 119
(1986); 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 sub nom. U.S.
Department of Justice and Department of Justice, Bureau of Prisons v.
FLRA, 792 F.2d 25 (2d Cir. 1986); General Services Administration,
Washington, D.C., 18 FLRA No. 52 (1985); United States Marshals
Service, 13 FLRA 351 (1983), enforced sub nom. United States Marshals
Service v. FLRA, 778 F.2d 1432 (9th Cir. 1985).
Based on the foregoing precedent, the Authority finds that the
Respondent Union was required to implement the arbitration award which
became final and binding within the meaning of section 7122(b) of the
Statute upon the Authority's denial of the Respondent Union's
exceptions.
V. Conclusion
The Authority has considered all the facts and circumstances of this
case, including the positions of the parties. The Authority concludes
that the Respondent Union violated section 7116(b)(8) of the Statute by
failing and refusing to comply with the requirements of section 7122 of
the Statute by refusing to fully implement the arbitration award of
Arbitrator Harry L. Johnson rendered on June 25, 1984, when its
exceptions to the arbitrator's award had been denied by the Authority.
In the circumstances of this case, the Authority finds it unnecessary to
pass upon whether such conduct was also violative of section 7116(b)(1)
and (5) of the Statute.
ORDER /*/
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
ordered that the American Federation of Government Employees, Local
3511, AFL-CIO, shall:
1. Cease and desist from:
(a) Failing and refusing to fully implement the June 25, 1984
arbitration award of Arbitrator Harry L. Johnson rendered in Audie L.
Murphy Memorial Veterans Hospital, Veterans Administration, San Antonio,
Texas and American Federation of Government Employees, Local 3511, San
Antonio, Texas, Arbitration File No. 84K/02774.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Fully comply with the June 25, 1984 award of Arbitrator Harry L.
Johnson, including purchasing the required one-half page ad in all San
Antonio daily newspapers and contacting the local television stations as
directed requesting that they announce that the previously broadcast
accusations of the Union were erroneous.
(b) Post at its business offices and its normal meeting places,
including all places where notices to members and employees of the
Veterans Administration, Audie L. Murphy Memorial Veterans Hospital are
customarily posted, 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 President of the American
Federation of Government Employees, Local 3511, AFL-CIO, 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 members and other employees are customarily posted.
Reasonable steps shall be taken to ensure that such Notices are not
altered, defaced, or covered by any other material.
(c) Submit appropriate signed copies of such Notices to the Director,
Audie L. Murphy Memorial Veterans Hospital, Veterans Administration, for
posting in conspicuous places where notices to unit employees are
customarily posted, where they shall be maintained for a period of 60
consecutive days from the date of posting.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, 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., September 30, 1986.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Dissent of Chairman Calhoun
I agree that Respondent's refusal to comply with the arbitration
award in this case violates section 7116(b)(8) of the Statute. However,
contrary to my colleagues, I do not believe that the policies and
purposes of the Statute will be effectuated at this time by ordering the
Respondent to purchase ads in local newspapers in the San Antonio area
or contact the local television stations for the purpose of having them
announce that previously broadcast accusations of the Union were
erroneous. Indeed, I believe that compliance with the order may well
exacerbate rather than remedy the problem. Nearly three years have
passed since the underlying grievance in this case was filed and
undoubtedly the incident has long since passed from the public
consciousness. While the publication and broadcast remedy may well be
proper in other cases, the extraordinary nature of that remedy coupled
with the passage of time leads me to conclude that it is inappropriate
here.
Issued, Washington, D.C., September 30, 1986.
/s/ Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/*/ Chairman Calhoun dissents from the Order in this decision.
APPENDIX
NOTICE TO ALL MEMBERS AND OTHER 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 MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT fail or refuse to fully implement the June 25, 1984
arbitration award of Arbitrator Harry L. Johnson rendered in Audie L.
Murphy Memorial Veterans Hospital, Veterans Administration, San Antonio,
Texas and American Federation of Government Employees, Local 3511, San
Antonio, Texas, Arbitration File No. 84K/02774.
WE WILL fully comply with the June 25, 1984 award of Arbitrator Harry
L. Johnson, including purchasing the required one-half page ad in all
San Antonio daily newspapers, and contacting the local television
stations as directed requesting that they announce that the previously
broadcast accusations of the Union were erroneous.
(Union)
Dated: . . . By: (Signature) (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 VI, whose address is: Federal Office Building, 525
Griffin Street, Suite 926, Dallas, Texas 75202 and whose telephone
number is (214) 767-4996.