[ v27 p759 ]
27:0759(81)CA
The decision of the Authority follows:
27 FLRA No. 81
WYOMING AIR NATIONAL GUARD,
CHEYENNE, WYOMING
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-76
Charging Party
Case Nos. 7-CA-60326
7-CA-70006 /1/
DECISION AND ORDER
I. Statement of the Case
This matter is before the Authority under section 2429.1(a) of the
Authority's Rules and Regulations based on stipulations of facts by the
parties who have agreed that no material issue of fact exists. The
General Counsel, the Charging Party (the Union) and the National Guard
Bureau on behalf of the Respondent have filed briefs with the Authority.
/2/
The complaints allege that the Respondent violated section 7116(a)(1)
and (8) of the Statute by failing and refusing to comply with an
arbitration award issued on January 15, 1986, by Arbitrator James A.
Evenson when its request for a stay was denied by the Authority on April
15, 1986, and when its exception to the arbitration award was denied by
the Authority on August 18, 1986.
II. Background
As stipulated by the parties, on January 15, 1986, Arbitrator James
A. Evenson issued an award concerning a grievance under a collective
bargaining agreement between the Union and the Respondent. The
grievance arose when prior to the expiration of the agreement, the
Respondent notified the Union that on expiration of the agreement, the
Respondent was electing no longer to be bound by the practice embodied
in Article XXIX of the agreement relating to the wearing of the military
uniform by civilian technicians. The Respondent also notified the Union
that beginning on and after May 13, 1985, which date constituted the
Respondent's determination as to when the agreement expired, civilian
technicians would be required in accordance with agency regulation to
wear the military uniform while performing technician duties. Article
XXIX of the agreement provided that the technicians had the option while
perfoming their technician duties of wearing either the appropriate
military uniform or "standard civilian attire" approved by the Adjutant
General. The Union filed a grievance that was submitted to arbitration
disputing that the agreement expired on the date specified by the
Agency.
In resolving the grievance, the Arbitrator noted the parties
agreement that on expiration of the agreement, the Respondent could
require the wearing of the military uniform. He determined however that
the agreement had not expired on the date specified by the Respondent
and that the Respondent had violated the agreement by requiring the
wearing of the military uniform beginning on that date. Accordingly,
the Arbitrator sustained the grievance and ordered the Respondent to
comply with the terms of the collective bargaining agreement until the
agreement expired.
On March 4, 1986, the National Guard Bureau, on behalf of the
Respondent, filed with the Authority an exception to and a request for a
stay of the arbitration award. By order dated April 15, 1986, the
Authority denied the request for a stay without deciding the merits of
the exception. On August 18, 1986, the Authority issued its decision in
Wyoming Air National Guard (WANG) and National Asssociation of
Government Employees (NAGE), Local No. 14-76, 23 FLRA No. 33 (1986),
denying the exception. On September 24, 1986, the Authority denied the
Respondent's motion for reconsideration of the denial of its exception.
The Respondent has failed and refused to comply with Arbitrator
Evenson's award.
III. Positions of the Parties
The General Counsel's position is that the Respondent's refusal to
comply with the arbitration award constitutes a violation of section
7116(a)(1) and (8) of the Statute. Citing AFGE Local 3090 v. FLRA, 777
F.2d 751 (D.C. Cir. 1985), the General Counsel contends that the
Respondent violated the Statute by refusing to comply with the award
when the Authority denied Respondent's request for a stay of the award
even though the Respondent's exception was still pending before the
Authority. The General Counsel further contends that the Respondent's
refusal to comply with the award when the Authority denied its exception
constituted a violation of the Statute. The Union similarly contends
that the Respondent violated the Statute.
The National Guard Bureau on behalf of the Respondent contends that
there was no obligation under the Statute that the Respondent comply
with the arbitration award during the pendency of its exception to the
award before the Authority notwithstanding the denial of its stay
request. The Bureau argues that the Authority should maintain the
interpretation of the Statute set forth in Soldiers' and Airmen's Home,
15 FLRA 139 (1984), that was reversed by the court in AFGE Local 3090,
and should not adopt the reasoning and conclusions of the court. The
Bureau further maintains that the award is contrary to law.
Consequently, the Bureau contends that the Respondent was not and is not
obligated to comply with the illegal award and that the complaint should
be dismissed.
IV. Analysis and Conclusions
We conclude that the Respondent violated the Statute by failing and
refusing to comply with the award of Arbitrator James A. Evenson, dated
January 15, 1986, when the Authority denied its stay request and further
violated the Statute by failing and refusing to comply with award when
the Authority denied its exception.
A. Denial of stay request
In AFGE Local 3090 the court concluded that the language and
legislative history of the Statute was ambiguous as to whether an
arbitration award as to which timely exceptions have been filed is final
and binding for compliance purposes while exceptions are pending. The
court found, however, that section 2429.8 of the Authority's Rules and
Regulations, which at that time provided for stays of arbitration
awards, demonstrated an "implicit premise" that the Authority viewed the
Statute as requiring the unsuccessful party in an arbitration proceeding
to secure a stay of the award to avoid being bound by it while
exceptions were pending. 777 F.2d at 757. Accordingly, the court
concluded that the Authority's interpretation of the Statute in
Soldiers' and Airmen's Home, to find that an arbitration award as to
which timely exceptions have been filed is not final and binding under
section 7122(b), could not be enforced until such time as the
Authority's stay regulation had been withdrawn by rulemaking. 777 F.2d
at 759. In a supplemental decision and order, we accepted the court's
opinion as the law of the case. Effective December 31, 1986, section
2429.8 of our rules was revoked. 51 Fed. Reg. 45755 (1986). We
reiterated our view of the Statute that when timely exceptions are filed
with the Authority, the award is not final and binding for compliance
purposes until the Authority resolves the exception, and we indicated
our intent consistent with AFGE Local 3090 to apply that view of the
Statute to cases arising after the removal of the stay regulation from
our rules.
Based on the reasoning and conclusions of the court in AFGE Local
3090, and noting in particular that the events in this case took place
before the stay regulation was removed, we conclude that once the
Respondent was unable to secure a stay of the arbitration award, the
Respondent was obligated to comply with the award while its exception
was pending. Accordingly, the Respondent's failure and refusal to
comply with the award when its stay request was denied violated the
Statute.
B. Denial of exception
It is well established that a party to an arbitrator's award must
comply with the award when timely filed exceptions to the award have
been denied by the Authority and that the failure or refusal to comply
with such an award constitutes an violation of section 7116(a)(1) and
(8) of the Statute. For example, American Federation of Government
Employees, Local 3511, AFL-CIO, 23 FLRA No. 77 (1986) (and cases cited
in the decision). In these cases, the issue is simply whether the award
has been complied with when the exceptions are denied. The Authority
will not relitigate in the unfair labor practice proceeding the denial
of the exceptions or the propriety of the award on grounds not raised in
the exceptions. AFGE Local 3511 Department of the Treasury, United
States Customs Service, New York Region, New York, New York, 21 FLRA No.
119 (1986). The case of Office of Personnel Management, 17 FLRA 21
(1985), cited by the Respondent, does not provide otherwise. The
complaint in OPM, alleging a failure to comply with an arbitration award
as to which exceptions were denied by the Authority, was dismissed
because during the course of the unfair labor practice proceeding the
Authority adopted the reasoning and conclusions of a court decision
concerning the type of matter that had been in dispute before the
arbitrator and concluded that previous decisions of the Authority,
including the decision denying OPM's exceptions to the arbitration
award, would no longer be followed. 17 FLRA at 22.
In this case there is no question as to whether the Respondent has
complied with the award; it admits that it has not. Therefore, under
established precedent the Respondent's failure and refusal to comply
with the award constitutes a violation of section 7116(a)(1) and (8) of
the Statute.
C. Remedy
As to an approporiate remedy, the Union argues that in order to make
affected unit employees whole for the Respondent's violations of the
Statute in failing to comply with the Arbitrator's award, the Authority
should order that on expiration of the collective bargaining agreement,
civilian technicians be permitted the option of wearing standard
civilian attire instead of the military uniform for a period of time
equal to the period of time during which the Respondent unlawfully
refused to comply with the award. We agree that such a remedy is
necessary to make employees whole for the violations of the Statute and
to effectuate the purposes and policies of the Statute. As to the
Union's request for a nationwide posting, we find that the violations of
the Statute were those of the Respondent Wyoming Air National Guard,
alone, and we will not order a nationwide posting of the Notice which
follows at all Air National Guard installations.
V. Decision
We sustain the allegations of the complaints that the Respondent
violated section 7116(a)(1) and (8) of the Statute by failing and
refusing to comply with the award of Arbitrator Evenson when its stay
request was denied and when its exception to the award was denied. To
remedy these violations, we issue the following Order.
VI. Order
Pursuant to section 2423.29 of our rules and section 7118 of the
Statute, we order that the Wyoming Air National Guard, Cheyenne, Wyoming
shall:
1. Cease and desist from:
(a) Failing to comply with the provisions of section 7122(b) of
the Statute by refusing and failing to implement Arbitrator
Evenson's January 15, 1986 award when pursuant to section 2429.8
of the Authority's Rules and Regulations, the Authority on April
15, 1986, denied its stay request of that award.
(b) Failing to comply with the provisions of section 7122(b) of
the Statute by refusing and failing to implement Arbitrator's
Evenson's January 15, 1986 award when the Authority on August 18,
1986, denied its exception to that award in Wyoming Air National
Guard (WANG) and National Association of Government Employees
(NAGE), Local No. 14-76, 23 FLRA No. 33 (1986).
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Comply fully with the award of Arbitrator Evenson dated
January 15, 1986.
(b) On expiration of the parties' collective bargaining
agreement (or on receipt of this Order if the agreement has
already expired according to the terms of the Arbitrator's award),
provide civilian technicians the option when performing technician
duties of wearing either the the appropriate military uniform or
standard civilian attire approved by the Adjutant General for a
period of time equal to the period of time from April 15, 1986
(when the stay request was denied) to the date of this Order or
when the contract expired, whichever comes first. On the
expiration of this period of time, the wearing of the military
uniform by technicians while performing technician duties will be
governed by the parties' collective bargaining agreement or by
agency regulation, as appropriate.
(c) Post at its facilities where bargaining-unit employees are
located, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Such forms shall be signed
by a senior official of the Wyoming Air National Guard, and shall
be posted and maintained for 60 consecutive days after posting, 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.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply.
Issued, Washington, D.C., June 25, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) We grant the General Counsel's motion to consolidate these two
cases.
(2) The Respondent has submitted a motion to file an amended answer
in 7-CA-70006 stating that as a result of a clerical error, its original
answer admitted the alleged violations of the Statute. The amended
answer denies the allegation. We grant the motion and also deny the
Charging Party's motion to strike portions of the brief filed by the
National Guard Bureau incorporating the amendment. Because the briefs
of the National Guard Bureau have been filed on behalf of the Respondent
and the Respondent's brief in 7-CA-60326 was withdrawn, we deny the
General Counsel's motion to strike the briefs filed by the National
Guard Bureau. Finally, in resolving these types of cases, we only
consider facts contained in the stipulation. Accordingly, we find that
the motions of the General Counsel and the Charging Party to strike
portions of the National Guard Bureau's brief in 7-CA-70006 as allegedly
containing factual material not included in the stipulation are
unnecessary and they are denied.
NOTICE TO ALL EMPLOYEES AS ORDERED BY THE FEDERAL LABOR
RELATIONS
AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to comply with the provisions of section 7122(b) of
the Statute by refusing and failing to implement Arbitrator Evenson's
January 15, 1986 award when pursuant to section 2429.8 of the
Authority's Rules and Regulations, the Authority on April 15, 1986,
denied our stay request of that award and when the Authority on August
18, 1986, denied our exception to that award in Wyoming Air National
Guard (WANG) National Association of Government Employees (NAGE), Local
No. 14-76, 23 FLRA No. 33 (1986).
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of rights assured them by the
Federal Service Labor-Management Relations Statute.
WE WILL comply fully with the award of Arbitrator Evenson dated
January 15, 1986.
WE WILL on expiration of our collective bargaining agreement (or
beginning on the date we received the Order of the Authority in this
case, if the agreement has already expired), provide civilian
technicians the option when performing technician duties of wearing
either the appropriate military uniform or standard civilian attire
approved by the Adjutant General for a period of time equal to the
period of time from April 15, 1986, to date of the Authority's Order in
this case or when the contract expired, whichever comes first.
. . . (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 VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose
telephone number is: (303) 837-5224.