[ v24 p1021 ]
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.