24:1021(99)CA - Air Force, HQ 832d Combat Support Group, DPCE, Luke AFB, AZ and AFGE Local 1547 -- 1986 FLRAdec CA
[ v24 p1021 ]
24:1021(99)CA
The decision of the Authority follows:
24 FLRA No. 99
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS 832D COMBAT
SUPPORT GROUP,DPCE
LUKE AIR FORCE BASE, ARIZONA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1547
Charging Party
Case No. 8-CA-50167
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority because of
exceptions filed by the Respondent to the attached decision of the
Administrative Law Judge. The Charging Party (the Union) filed an
opposition to the exceptions. The complaint alleges that the Respondent
violated section 7116(a)(1), (5) and (8) of the Federal Service
Labor-Management Relations Statute (the Statute) by failing to comply
fully with an Arbitrator's award to which no timely exceptions were
filed pursuant to section 7122 of the Statute and which therefore had
become final and binding. The Judge concluded that the Respondent
violated section 7116(a)(1) and (8) of the Statute by failing to comply
with the Arbitrator's award. Although finding the complaint to have
been timely filed for reasons which differ from the Judge's, the
Authority agrees with his conclusion as to the violation by the
Respondent.
II. Background
On September 23, 1983, Arbitrator David Goodman issued an award in
which he found that the Respondent had violated the parties' collective
bargaining agreement when it transferred two employees from the "swing
shift" to day shift assignments, which resulted in the employees' loss
of night differential (premium pay). While the Arbitrator did not
expressly state that the employees who were improperly reassigned were
to be reimbursed for their lost premium pay, he did order a return to
the status quo. The Respondent reassigned the employees to their prior
shift, but took the position that the award did not require the payment
of backpay. On January 3, 1984, the Union filed an unfair labor
practice (ULP) charge alleging that the Respondent had failed to fully
comply with the Arbitrator's award. The Union subsequently sought
clarification of the award from the Arbitrator. On March 1, 1984, the
Arbitrator advised the parties that the only meaning that could be
applied to his status quo requirement was that the employees be paid for
the premium pay they lost when they were denied access to the swing
shift. On March 30, 1984, the Respondent filed exceptions to the
Arbitrator's clarification with the Authority. On or about April 23,
1984, the Union then withdrew its first ULP charge and on the same day
filed a second, essentially identical charge. On July 13, 1984, the
Regional Director dismissed the Union's second ULP charge because of the
Respondent's pending exceptions to the Arbitrator's award then before
the Authority.
On July 27, 1984, the Authority issued its decision in American
Federation of Government Employees, Local Union 1547 and Department of
the Air Force, Luke Air Force Base, Arizona, 15 FLRA 399 (1984). The
Authority held that the Arbitrator's clarification did not constitute a
modification of the original award, but that it was merely a reiteration
of an issue originally covered in the award. The Authority held that
exceptions, to be timely, had to be filed within 30 days after the
original award and that the Respondent's exceptions, filed some six
months after the award, were therefore untimely.
On August 1, 1984, the Union appealed to the General Counsel
concerning the Regional Director's dismissal of its second ULP charge.
At a meeting held on or about September 5, 1984, the Respondent advised
the Union that, in its view, the Authority's denial of its exceptions
did not require the payment of backpay to the affected employees. The
Union filed its third ULP charge on September 10, 1984. On September
14, 1984, the Union asked for written confirmation of the Respondent's
position as to backpay. On September 17, 1984, the Respondent took the
position that it would not comment on the merits of the backpay issue
pending the resolution of the Union's appeal to the General Counsel of
the Regional Director's July 13 denial of the Union's earlier ULP
charge. On October 31, 1984, the General Counsel affirmed the Regional
Director's dismissal of the Union's second charge. On January 3, 1985,
the Union withdrew the third charge it had filed in September 1984, and
sent the Respondent a letter reiterating its view that full compliance
with the Arbitrator's award required the payment of backpay to the
affected employees. At a meeting held on January 10, 1985, the
Respondent again took the position that the award did not require the
payment of backpay. On February 11, 1985 the Union filed its fourth ULP
charge leading to issuance of the complaint in the present case.
III. The Administrative Law Judge's Decision
The Judge concluded that the Respondent failed to comply with section
7122 of the Statute, in violation of section 7116(a)(1) and (8) of the
Statute, when it failed to pay the backpay awarded by the Arbitrator.
The preliminary issue addressed by the Judge was whether the Union's
fourth charge was timely filed under section 7118(a)(4)(A) of the
statute, which precludes issuance of a complaint "based on any alleged
unfair labor practice which occurred more than 6 months before the
filing of the charge with the Authority." The Judge found that it was
not clear that an actionable charge alleging a refusal to fully comply
with the award could have been filed before the Authority denied the
Respondent's untimely exceptions, that is, before July 27, 1984. The
Judge reasoned that a charge filed before that date would have been
dismissed because of a lack of awareness of what the Arbitrator had
actually ordered.
Using July 27, 1984, as the starting date for the 6-month period for
filing a ULP charge, the Judge recognized that the February 11, 1985
charge was filed after that period expired. However, the Judge found
that the situation in this case was analogous to situations in private
sector cases involving "continuing violations" of the National Labor
Relations Act. The Judge also reasoned that the policy underlying the
statutory time limit, to protect respondents against stale claims, would
not be offended by finding the charge to be timely. The Judge found
that the uncertainties of redress and the Union's diligent pursuit of
its claim furnished equitable reasons not to dismiss the charge as
raising a stale claim. For those reasons, the Judge recommended that
the Authority find that the Union's February 11, 1985 charge in this
case was not time-barred by section 7118(a)(4)(A).
In response to the Union's request to be reimbursed for its expenses,
including legal fees incurred in pursuing this case, the Judge concluded
that such relief would only be available pursuant to the Back Pay Act
following the final resolution by the Authority.
IV. Positions of the Parties
In its exceptions, the Respondent contends that the Judge erred in
concluding that the Union's unfair labor practice charge was not
time-barred by section 7118(a)(4)(A). The Respondent also excepts to
"the Judge's implicit holding" that the charge was based on a continuing
violation. The Respondent agrees with the Judge that the time for
filing a charge began on July 27, 1984, the date the Authority dismissed
the Respondent's exceptions to the Arbitrator's award. The Respondent
argues that the charge filed on February 11, 1985 was untimely and that
the Judge's equitable reasons for finding to the contrary are
unsupportable. The Respondent further contends, based on its
interpretation of the Arbitrator's award of September 23, 1983, that it
fully complied with the award, but that if the award included a backpay
remedy, the remedy is contrary to the Back Pay Act. In its opposition
to the Respondent's exceptions, the Charging Party argues generally in
support of the Judge's rationale, and also argues for alternative dates
to support the finding that the charge in this case was timely filed.
V. Analysis
We agree with the Judge that the Respondent failed to comply with
section 7122(b) of the Statute, in violation of section 7116(a) (1) and
(8), when it refused to pay the affected employees the backpay awarded
by the Arbitrator. We also agree with the Judge's finding that the
Union's unfair labor practice charge was not time-barred by section
7118(a)(4)(A) of the Statute. However, our timeliness determination is
based on somewhat different reasons.
A. Timeliness
Section 7122(b) of the Statute provides "If no exception to an
arbitrator's award is filed . . . during the 30-day period beginning on
the date of such award, the award shall be final and binding. An agency
shall take the actions required by an arbitrator's final award." The
Arbitrator's award involved in this case was dated September 23, 1983.
The Respondent did not file exceptions to the award within 30 days of
that date. Therefore, the award became final and binding for compliance
purposes on October 23, 1983, by operation of section 7122(b).
Moreover, notwithstanding the Respondent's interpretation of the award,
the Arbitrator remedied the loss of night differential pay of the
affected employees which resulted from the Respondent's violation of its
collective bargaining agreement with the Union.
It is well established that an agency is obligated to comply with an
arbitration award to which timely exceptions have not been filed and any
failure to comply with an award under such circumstances constitutes an
unfair labor practice. United States Air Force, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984),
affirmed, Department of the Air Force v. FLRA, 775 F.2d 727 (6th Cir.
1985).
Under section 7118(a)(4) of the Statute an unfair labor practice
charge must be filed within 6 months of the occurrence of the alleged
ULP. In this case, the 6-month period for filing a ULP charge alleging
that the Respondent failed to fully comply with the Arbitrator's award
commenced on October 23, 1983, when the award became final and binding.
The Authority has determined that for equitable reasons the running of
the 6-month period was suspended during the pendency of the three
separate ULP charges filed by the Union in this matter on or about
January 3, April 23 and September 10, 1984, and that the fourth charge
filed on February 11, 1985 was timely.
The Supreme Court has held that equitable principles are applicable
to time limits specifically established by statute. Glus v. Brooklyn
Eastern District Terminal, 359 U.S. 231 (1959); Burnett v. New York
Central R.R. Co., 380 U.S. 424 (1965); American Pipe and Construction
Co. v. Utah, 414 U.S. 538 (1974). Specific statutory time limits are
subject to modification on equitable grounds in certain circumstances.
For example, where a party did not sleep on its rights but brought a
timely action in a state court rather than the appropriate Federal
court, the statutory time limit was tolled by the filing of the state
action. See Burnett. The statutory time limit was also tolled or
suspended where such action was not inconsistent with the legislative
history of the particular statute. See American Pipe.
Applying the rationale of the Supreme Court in the above-cited
decisions, we find that suspension of the 6-month filing period is not
inconsistent with the legislative history of the Statute in the unique
circumstances of this case. There is nothing in the legislative history
of section 7118(a)(4)(A) that precludes the application of equitable
principles in computing the time period. In fact, suspension of the
time period in this case is consistent with the intent of Congress
reflected in sections 7116 and 7118 of the Statute that unfair labor
practices should be remedied. Suspension is also consistent with the
intent of Congress reflected in section 7122(b) that arbitration awards
should be given final and binding effect except where, on timely filed
exceptions, the Authority finds that an award is deficient.
Moreover, the record in this case is replete with examples showing
that the Union did not sleep on its rights in this matter but, rather,
that it continuously and diligently sought to have the Arbitrator's
September 23, 1983 award fully implemented by the Respondent through
numerous requests, meetings and ULP charges. As to the charges, all
four were essentially identical, alleging that the Respondent refused to
fully comply with the Arbitrator's award in violation of the Statute.
We note in particular that the Union's timely filed charge of April 23,
1984, was dismissed by the Regional Director and its appeal from that
action was subsequently denied by the General Counsel essentially
because the Respondent's exceptions to the Arbitrator's award were still
pending before the Authority. On that basis, the Union, without fault
and without a determination on the merits of its claim, was left without
an actionable charge to redress the Respondent's refusal to fully
implement the Arbitrator's award.
Under these unique circumstances, we have determined that the
Respondent should not escape its obligation to fully comply with the
Arbitrator's award, which required the payment of backpay to the
affected employees. Accordingly, we conclude that the period for filing
a ULP charge in this case was first tolled with the timely filing of the
Union's April 23, 1984 charge, and that the running of the time period
was there-after suspended through the filing of the Union's fourth ULP
charge February 11, 1985. It follows that the fourth charge was timely
and not time-barred.
B. Refusal to Comply
On the merits of the complaint, there is no question that the
Respondent failed to provide the backpay called for in Arbitrator
Goodman's September 23, 1983 award. Any question which the Respondent
had as to the legality of the award should have been raised through
timely exceptions filed with the Authority pursuant to section 7122(a)
of the Statute. As noted above, the Authority found the exceptions
filed by the Respondent to be untimely. Therefore, the Arbitrator's
award was final and binding and, as correctly found by the Judge, it
cannot be collaterally attacked in an unfair labor practice proceeding.
Department of the Treasury, United States Customs Service, New York
Region, New York, New York, 21 FLRA No. 119 (1986); Military Sealift
Command (Atlantic), 21 FLRA No. 111 (1986).
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and affirms those rulings. The Authority has considered the
Judge's Decision, the exceptions to that decision and the opposition to
the exceptions, the positions of the parties, and the entire record, and
adopts the Judge's findings, conclusion, and recommended Order as here
modified. We therefore conclude that the Respondent's failure to pay
the backpay required by the Arbitrator's award, which had become final
and binding under section 7122(b) of the Statute in the absence of
timely exceptions, constituted a failure to comply fully with the
Arbitrator's award in violation of section 7116(a)(1) and (8) 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 Department of the Air Force, Headquarters 832D Combat
Support Group, DPCE, Luke Air Force Base, Arizona, shall:
1. Cease and desist from:
(a) Failing and refusing to fully implement Arbitrator David
Goodman's arbitration award rendered on September 23, 1983.
(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 David Goodman's September 23, 1983
arbitration award by making whole employees Trujillo and Gratz for the
shift differential premium pay they lost from the time of their removal
from the swing shift until they were returned to that shift on October
31, 1983.
(b) Post at its Luke Air Force Base 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
Commanding Officer 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 VIII, 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.
It is further ordered that the section 7116(a)(5) allegations of the
complaint be dismissed.
Issued, Washington, D.C., December 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 David
Goodman's arbitration award rendered on September 23, 1983.
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 David Goodman's September 23,
1983 arbitration award by making whole employees Trujillo and Gratz for
the shift differential premium pay they lost from the time of their
removal from the swing shift until they were returned to that shift on
October 31, 1983.
. . . (Activity)
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 VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071, and whose telephone number is: (213) 894-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 8-CA-50167
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS 832D COMBAT SUPPORT GROUP,
DPCE LUKE AIR FORCE BASE, ARIZONA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1547
Charging Party
Lt. Col. Charles E. Brower, Esq.
For the Respondent
Ronald Wayman
Stanley Lubin, Esq., on brief
For the Charging Party
John R. Pannozzo, Jr., Esq.
Gerald M. Cole, Esq.
For the General Counsel
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
Section 7101 et seq., and the Rules and Regulations issued thereunder at
5 CFR 2411 et seq. It arose upon the filing of an unfair labor practice
charge on February 11, 1985 by Local 1547. On April 4, 1985, the
Regional Director of Region VIII, Federal Labor Relations Authority
issued a Complaint alleging that Respondent violated Sections
7116(a)(1), (5) and (8) of the Statute on September 5, 1984 and on
January 10, 1985 and "continuing to date" by refusing to completely
comply with an arbitration award. At issue is whether Respondent
violated the law by refusing to make two employees whole for loss of
night differential pay.
A hearing was held on May 8, 1985 in Phoenix, Arizona, at which the
facts were largely stipulated. None of the facts relied upon herein was
disputed.
Findings of Fact
1. On December 30, 1982, the Union grieved Respondent's decision to
transfer the two civilian employees on its swing shift in the Pick-Up
and Delivery Section of the Aerospace Ground Equipment Branch of the
405th Equipment Maintenance Squadron to the day shift. Employee
Trujillo was assigned to the day shift on December 27, 1982, and
employee Gratz was assigned on January 10, 1983. Both men thereby lost
the night shift differential.
2. On September 23, 1983, Arbitrator David Goodman issued his Award,
finding that Respondent had violated its contractual obligation to
negotiate concerning the reassignments. Respecting the question of an
appropriate remedy, the Arbitrator said:
a return to status quo . . . remedy is embodied within the
language of Article V1, 3. which says "In no case" will a change
be implemented until negotiations are completed. Thus, the
Arbitrator is left with no choice but to order the parties back to
where they were before the December 14, 1982 letter from Sergeant
Williams (ordering the reassignment) . . . and to further order
that the parties immediately meet and negotiate this change.
(Parenthetical comment mine).
3. The Arbitrator, in addressing the remedy, made no explicit
mention of backpay for Trujillo and Gratz, although he had asked the
Union whether it wished him to make a determination respecting
entitlement to backpay, and had been told that it did.
4. On October 19, Respondent informed the Union that it would return
the men to the swing shift effective October 30, would reassign them to
the day shift effective November 28, and that the Union should forward
its proposals concerning the impact and implementation of the decision
to return them to the day shift no later than November 1.
5. On October 20, Respondent told the Union that, in its opinion,
the Arbitrator had not ordered backpay. On October 26, the Union
responded that such position constituted noncompliance with the Award,
which had become final upon expiration of the appeal period, and that
backpay for the swing shift differential was continuing to accumulate.
6. Gratz and Trujillo were reassigned to the swing shift on October
31 and back to the day shift on November 28. In the interim Respondent
twice restated its view that the Award made no provision for backpay.
7. On December 2, the Union unilaterally requested that the
Arbitrator clarify his award with respect to the backpay issue, and on
January 3, 1984 it filed an unfair labor practice charge alleging
refusal to implement the Award.
8. On March 1, the Arbitrator advised the parties that:
. . . the status quo remedy was clearly intended to require the
Air Force to make these employees whole for all lost wages
incurred when they were removed from the second shift. After all,
only one meaning can attach to status quo -- employees should be
placed back to the position where they would have been but for a
breach of the Agreement. Accordingly, the Employer is advised
that those civilian employees on second shift at the time of the
breach are entitled to the premium pay for the period of time they
were denied access to the second shift.
9. On March 30, Respondent filed exceptions to the Arbitrator's
"clarification" of his Award.
10. In April the Union withdrew its unfair labor practice charge,
substituting another one apparently identical in its terms.
11. On July 13, the Regional Director refused to issue a complaint
on the following grounds:
The Charging Party asserts that the exceptions filed on March
30, 1984, were untimely and that the Authority has no jurisdiction
to review the clarification because it is not a separate award.
However, the Authority has held that exceptions filed on a
clarification of an arbitrator's award will be accepted as timely
provided that the deficiencies in the award did not arise until
the clarification, and the exceptions are filed within the proper
time period commencing on the date of the clarification. U.S.
Department of the Interior, Bureau of Land Management, Eugene
District Office, 6 FLRA No. 72 (1981). Moreover, any questions
regarding the scope and nature of the Authority's jurisdiction to
review the award should be first addressed by the Authority
itself. Since the Authority has not yet issued its decision on
the exceptions to this arbitration award, the Activity's failure
to implement the award as clarified pending the Authority's
decision is not violative of the Statute.
12. On July 27, the Federal Labor Relations Authority issued its
Order Dismissing (Respondent's) Exceptions as untimely filed (15 FLRA
No. 83). The Authority held that the arbitrator's March 1 letter had
essentially advised the parties of the clear intent of the September 23
Award, rejecting the Agency's contention that such letter modified the
Award and hence gave rise to the deficiencies alleged in its exceptions.
The time for filing exceptions was therefore calculated from the date
the September Award was served on the parties.
13. On September 5, Respondent reiterated its view that the
September Award did not require backpay. The Union responded on
September 10 by filing another unfair labor practice charge (8-CA-40459)
alleging refusal to implement the Award. A Complaint was issued on
November 27 but, for unexplained reasons the charge was withdrawn on
January 3, 1985 and the Complaint dismissed on January 9.
14. On September 14, the Union by letter contended that Respondent's
conduct constituted a contract violation, and requested a written
response. On September 17, Respondent replied that it would be
inappropriate to respond during the pendency of the Union's appeal from
the Regional Director's refusal to issue Complaint.
15. On October 31, the General Counsel denied the Union's appeal.
Noting that Section 2429.8(b) of the Authority's Rules provides for a
stay of an arbitrator's award where timely exceptions are filed and a
stay is requested, and that the exceptions were still pending at the
time the Regional Director dismissed the charge, the General Counsel
found noncompliance witwh the Award in such circumstances did not
constitute an unfair labor practice.
16. On January 10, 1985, Respondent for the last time restated its
opinion that the Award did not require it to pay Gratz and Trujillo
backpay, and on February 11, the Union filed the instant unfair labor
practice charge.
Conclusions of Law
Section 7122 provides that a party to arbitration must "take the
actions required by an arbitrator's final award". Further, an award
becomes final and binding when exceptions are not filed with the
Authority "during the 30-day period beginning on the date the award is
served on the party", or when the Authority issues its decision denying
exceptions. Here Respondent did not file timely exceptions to the
original award, and did not succeed with the exceptions filed to the
Arbitrator's letter of "clarification". Rather, the Authority's
Decision, noting that the Arbitrator had essentially advised the parties
of the clear intent of his Award, dismissed the exceptions as untimely
filed with respect to the date of the original award. As Respondent has
refused to reimburse the employees for the premium pay they lost while
denied access to the second shift, it clearly has failed to comply with
Section 7122 in violation of Section 7116(a)(1) and (8). /1/
Respondent's various defenses -- that the Arbitrator was functus officio
when he explicitly ordered backpay, that his supplemental action was
secured by a unilateral and ex parte request, and that his Award is
contrary to the Backpay Act -- are matters which were subject to review
by the Authority pursuant to Section 7122, and are not subject to
collateral attack in this forum. /2/ Nevertheless, the question remains
whether the unfair labor practice charge, filed on February 11, 1985,
can reach back to any act or event which constitutes an unfair labor
practice.
Section 7118(c)(4)(A) precludes issuance of a complaint "based on any
alleged unfair labor practice which occurred more than 6 months before
the filing of the charge with the Authority". Here, slightly more than
six months elapsed between the issuance of the Authority's Order
Dismissing Exceptions on July 27, 1984 and the filing of the charge on
February 11, 1985. Literally read, that Order simply held that the time
for filing exceptions expired on October 28, 1983, and thus the Award
became final and binding some 15 months before the unfair labor practice
charge was filed. I need not decide whether such was the case, or
whether the subsequent proceedings before the Arbitrator and the
Authority served to "toll" the running of the statute of limitations,
for in either event the action which would arguably trigger the
operation of Section 7118(a)(4)(A) occurred outside its six-month
period. Hence Respondent's failure to implement the terms of the Award
is actionable only if its conduct can be said to constitute a
"continuing violation", i.e., it is deemed to violate the law on each
and every day it remains in noncompliance, or a violation can somehow be
said to have occurred in September of 1984 and January of 1985 when it
restated its unwillingness to obey the Arbitrator.
The National Labor Relations Act contains, in Section 10(b), a
limitations clause substantively identical to our own. It has spawned
much of what is, perhaps sometimes loosely, termed "elucidating
litigation" over the types of violations which are by nature
"continuing", so as to escape the application of the limitations
provision. Over the years the Labor Board has sought to fashion such
violations, particularly with respect to employment discrimination and
the bargaining obligation, and has met with mixed reviews from various
U.S. Court of Appeals and from the U.S. Supreme Court. A brief look at
that experience may be instructive.
The purpose of Section 10(b) is to bar litigation over past events
"after records have been destroyed, witnesses have gone elsewhere, and
recollections of the events in question have become dim and confused."
/3/ The Supreme Court was there confronted with the question whether the
Board had properly found a violation of the LMRA based upon the
enforcement of a union-security clause which was valid on its face, but
which had been executed well before the 10(b) cutoff date at a time when
the union did not enjoy the majority status required by law. The Board
found a violation based on the continuing enforcement of the
union-security clause within the six-months limitations period, finding
(or defining) the evidence respecting the legality of the contract's
execution as admissible "background evidence" relevant to determining
whether the conduct within six months of the unfair labor practice
charge was unlawful.
The Supreme Court rejected this approach with the following analysis:
It is doubtless true that section 10(b) does not prevent all
use of evidence relating to events transpiring more than six
months before the filing and service of an unfair labor practice
charge. However, in applying rules of evidence as to the
admissibility of past events, due regard for the purposes of
section 10(b) requires that two different kinds of situations be
distinuished. The first is one where occurrences within the
six-month limitation period in and of themselves may constitute,
as a substantive matter, unfair labor practices. There, earlier
events may be utilized to shed light on the true character of
matters occurring within the limitations period; and for that
purpose section 10(b) ordinarily does not bar such evidentiary use
of anterior events. The second situation is that where conduct
occurring within the limitations period can be charged to be an
unfair labor practice only through reliance on an earlier unfair
labor practice. There the use of the earlier unfair labor
practice is not merely "evidentiary," since it does not simply lay
bare a putative current unfair labaor practice. Rather, it serves
to cloak with illegality that which was otherwise lawful. And
where a complaint based upon that earlier event is time barred, to
permit the event itself to be so used in effect results in
reviving a legally defunct unfair labor practice.
From here the Court went on to examine a number of cases illustrating
the extraordinary difficulty of applying these principles, and concluded
that it need not express a view on them, for it was not required for
present purposes to "go beyond saying that a finding of violation which
is inescapably grounded on events predating the limitations period is
directly at odds with the purposes of the section 10(b). proviso."
Here, I think significantly, it dropped footnote 14, in responding to
dissenting Justices Whittaker and Frankfurter, /4/ wherein it said:
Katz v. Labor Board, 196 F.2d 411, 30 LRRM 2063, and Labor
Board v. Gaynor News Co., 197 F.2d 719, 30 LRRM 2340, relied on
below and in dissent here, arose under provisions of the Act
(section 8(a)(3), 61 Stat. 140) since repealed (65 Stat. 601),
which permitted union security agreements only with unions which
possessed a Board certificate that a union security clause had
been authorized at a special election of the employees involved.
While the language, and perhaps the approach, of these cases may
be considered inconsistent with the principles we deem governing
here, the decisions on their facts present no such difficulty.
Proof of the nonexistence of such a certificate, which of course
was a continuing fact, plainly did not require resort to testimony
about past events; rather the issue was much like one arising out
of an agreement illegal on its face, the only difference being
that a separate instrument was involved.
Here we face a virtually identical situation: proof of the existence
of the obligation to implement the Arbitrator's award does not depend on
recollections which have become dim and confused, or witnesses who have
disappeared, but rather upon the existence of an instrument akin to the
certificate involved in Katz and in Gaynor News -- the Arbitrator's
decision or the Authority's Order. In either event the separate
instrument is readily available to establish Respondent's legal
obligation, so that the policy underlying the statutory limitations
period is not offended: i.e. there is no occasion to resort to the
kinds of unreliable evidence precluded by Section 10(b) in order to
establish an unfair labor practice predating the limitations period as a
predicated for the unfair labor practice sought to be established within
that period.
The NLRB has taken the same approach in cases involving the
obligation to bargain, a subject more closely analogous to the present
controversy. Where a union has been certified by the Board as the
representative of a majority of employees in a collective bargaining
unit, the Board will not, except in the rarest of circumstances,
entertain any challenge to the continuing majority status of that union
for a period of one year from the issuance of the certification. In
such a situation, the Board has held a charge of refusal to bargain to
be timely where it was filed within the certification year, although
more than six months after the first bargaining request was made and
unlawfully rejected. /5/ Likewise the Board has held the repudiation of
obligations arising under a collective bargaining agreement to
constitute a continuing violation. Thus, it has held that the fact that
the initial repudiation of an agreement occurred outside the Section
10(b) cutoff date does not absolve a respondent from the unfair labor
practices which inure from its continuing failure, within such
limitations period, upon demand to execute or abide by the agreement
reached. /6/ However, it limited statutory relief, i.e. it ordered that
the terms of the collective bargaining agreement be applied
retroactively only to the cutoff date.
The chief concern with such an approach is that it would, in like
cases, render permanently inoperative the policy of protecting
Respondents' against stale claims. At some point, it would seem,
considerations of laches or waiver arguably ought to come into play.
/7/
On this record, I would give little weight to such considerations.
Here the charge I find actionable was filed only a few weeks ago after
expiration of the six months period following the Authority's final
action on the case, and several weeks after the Union's final and futile
demand that Respondent comply with the backpay provisions of the Award.
Moreover, the Union had kept the controversy alive from the beginning
with repeated requests for payment, and by diligently filing a series of
unfair labor practice charges directed at Respondent's unwillingness
fully to implement the Award.
As noted, the Union filed its first charge several months after the
original Award, withdrew it, and filed an identical charge barely within
six months of the date when that Award became "final". That charge was
dismissed because of the then-pending exceptions to the Arbitrator's
supplemental "decision", and the General Counsel, noting that a stay had
been requested, sustained that dismissal. The Union may arguably be
faulted for its withdrawal of a like charge filed after the Authority's
Order, which had led to issuance of a complaint. However, its action,
unexplained on this record, must be viewed against the confusion in the
state of the law thus far elaborated under Section 7122.
Thus, it is not clear that an actionable charge could have been
filed, based on the refusal to implement the Award, at any time before
the Authority had disposed of the exceptions. A charge filed during the
five-month period between the Award's becoming "final" (i.e., upon the
lapse of 30 days free of exceptions), and the issuance of the
Arbitrator's supplemental decision might well have been dismissed for
essentially the same reasons that led to dismissal of the charge filed
after his actions: that it could not be known what was required of
Respondent until the Arbitrator acted upon the request for
clarification. Thereafter, of course, the pendency of exceptions and
the associated stay precluded the filing of an actionable charge. A
viable charge apparently could not have been filed prior to issuance of
the Order Dismissing Exceptions, and the Order can literally be read as
holding that any subsequent charge would be time-barred for the reasons
the exceptions were: because the clock began to run on the thirteenth
day after issuance of the original Award, some nine months before the
Authority acted. These uncertainties of redress, and the Union's
diligent pursuit of its claim, would appear to furnish equitable reasons
not to dismiss the charge as one raising a stale claim. /8/
Lastly, Charging Party seeks, in addition to a conventional backpay
order, an order directing that it be reimbursed for expenses, including
legal fees. It rests it claim on the Respondent's "frivolous, indeed
absurd" grounds for refusing to comply with the Arbitrator' Award and
cites two celebrated private sector cases as grounds for such relief.
/9/ Aside from the fact that the violation here is in no way comparable
to the egregious violations in those cases, I am unaware of any
authority in the public sector to assess such expenses against the
government, except for legal fees and associated expenses covered by the
Back Pay Act and the Equal Access to Justice Act. The latter would not
apply, but the former may. The relevant statutory provision is found at
5 U.S.C. section 5596, which incorporates 5 U.S.C. section 7701(g), and
the Authority has dealt with the issue in International Brotherhood of
Electric Workers and United States Army Support Command, Hawaii, 14 FLRA
680. I take Section 5596(b)(1) to require an Authority decision
sustaining my finding of entitlement to backpay, before an application
for a fee is in order, and direct that, in such event, the parties
follow the procedures, as relevant here, set forth in Part 2430 of the
Rules and Regulations.
Having concluded that Respondent failed to comply with Section 7122
of the Statute in violation of Section 7116(a)(1) and (8), I recommend
that the Authority enter the following:
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 Department of the Air Force, Headquarters 832d
Combat Support Group, DPCE, Luke Air Force Base, Arizona, shall:
1. Cease and desist from:
(a) Failing and refusing fully to implement Arbitrator David
Goodman's Arbitration Award rendered on September 23, 1983.
(b) In any like or related manner interfering, 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) Fully comply with Arbitrator David Goodman's September 23,
1983 Arbitration Award by making whole employees Gratz and
Trujillo for the shift differential premium pay they lost from the
time of their removal from the swing shift until they were
returned to that shift on October 31, 1983.
(b) Post at its Luke Air Force Base facility, 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 Commanding Officer, or his designee, and shall be
posted and maintained for 60 consecutive days thereafter,
inconspicuous 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 VIII, 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.
/s/ John H. Fenton
JOHN H. FENTON
Chief Administrative Law Judge
Dated: March 26, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) The Judge correctly found it unnecessary to pass upon the section
7116(a)(5) allegation of the complaint, and no exceptions were taken to
his Decision in this regard.
(1) United States Army Health Clinic, Ft. Ritchie, Maryland, 9 FLRA
935; United States Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, 15 FLRA 151. I do not pass on the
Section 7116(a)(5) allegation, noting that in the latter case the
Authority found it unnecessary to do so.
(2) United States Air Force, Air Logistics Command, Wright-Patterson
Air Force Base, Ohio 15 FLRA No. 151; aff'd sub nom. Department of the
Air Force v. FLRA, 775 F.2d 727 (CA 6); Veterans Administration Medical
Center, Phoenix, Arizona, 15 FLRA 706.
(3) Local Lodge 1424 v. NLRB, 362 U.S. 411, 45 LRRM 3212, 3216.
(4) Local Lodge, supra, 45 LRRM 3212, 3217.
(5) See, for example, Sewanee Coal Operators' Association, 167 NLRB
172. The Board found the first request to be a continuing one, at least
for the duration of the certification year, noting that it would have
been futile for the union to have "continuously repeated such requests
thereafter." As an apparent safety measure, the Board also treated the
charge which was filed more than six months after the refusal as
tantamount to an explicit request to bargain, thus rendering
simultaneous the last request/refusal to bargain and the filing of the
charge.
(6) Anchor Rome Mills, 110 NLRB 956, enf'd 228 F.2d 775 (CA-5), 37
LRRM 2367; Al Bryant, Inc., 260 NLRB 128, 135, 109 LRRM 1284, enf'd 113
LRRM 3690 (CA-3). It is to be underscored that these cases involved
repeat demands for compliance within six months of the filing of the
unfair labor practice. See also, Tarrington Construction Co., 235 NLRB
1540, fn. 2.
(7) In recommending that the Authority not find the charge
time-barred, I am not unaware of the Sixth Circuit's holding that "the
limitation period for filing an unfair labor practice charge based on a
refusal to implement an arbitration award begins to run on the date the
award becomes final pursuant to Section 7122(b)." U.S. Air Force v.
FLRA, 775 F.2d 727, enfg. 15 FLRA 151. Neither the Court nor the
Authority confronted the issued presented here. Rather, they read
Section 7122(b) as making a refusal to obey an award actionable only
when it becomes "final and binding" upon expiration of the 30 days for
filing exceptions.
(8) I have made Respondent's Citation of Supplemental Authority,
filed on October 22, 1985, a part of the record herein, over Charging
Party's objection. Rule 28(j) of the Federal Rules of Appellate
Procedure permits receipt of such materials after briefs have been
filed. However, I give no weight to such materials as they go to the
merits of the Arbitrator's decision and his authority to "clarify" it,
and are thus an attempt to collaterally attack his action in an unfair
labor practice proceeding.
(9) IUE v. NLRB, 440 F.2d 298 and UAW v. NLRB, 455 F.2d 1357.
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse fully to implement Arbitrator David
Goodman's Arbitration Award rendered on September 23, 1983.
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 fully comply with Arbitrator David Goodman's September 23,
1983 Arbitration Award by making whole employees Gratz and Trjillo for
the shift differential premium pay they lost from the time of their
removal from the swing shift until they were returned to that shift on
October 31, 1983.
. . . (Agency or Activity)
Dated: . . . By: . . .
(Signature)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region VIII,
whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles,
California 90071, and whose telephone number is: (818) 894-3805, FTS
8-798-3805.