File 2: ALJ's Decision

[ v57 p685 ]

Office of Administrative Law Judges



Charging Party

Case No. WA-CA-00547

Kathleen Oddo, Esquire
For the Respondent

Tracy Levine, Esquire
Thomas Bianco, Esquire
For the General Counsel

Before: ELI NASH
Chief Administrative Law Judge


Statement of the Case

      The General Counsel of the Federal Labor Relations Authority (the Authority), by Regional Director, Washington Region, issued a complaint alleging that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to comply with an arbitrator's award. The award requires the Respondent to provide premium pay for overtime work for certain Title 38 employees.

      The Respondent contends that the award may not be enforced in an unfair labor practice (ULP) proceeding because the Authority lacks jurisdiction over the subject matter of the award. Specifically, the Respondent asserts that the Under Secretary for Health has determined that the award concerns "employee compensation" within the meaning of 38 U.S.C. § 7422(b), which precludes bargaining over or grievance procedures covering "employee compensation." Therefore, according to the Respondent, the award cannot be enforced in this ULP proceeding because the matter is excluded from the Authority's jurisdiction.

      Subsequent to the filing of the complaint and answer, Counsel for the General Counsel moved for summary judgment. Counsel for the Respondent filed a response to the motion and moved to dismiss.

      Treating the Respondent's request to dismiss with supporting exhibits as a cross-motion for summary judgment, and considering all the pleadings and exhibits, it appears that there are no genuine issues of material fact and that the Respondent is entitled to summary judgment as a matter of law. Accordingly, I make the following findings of fact, conclusions of law, and recommendation.

Findings of Fact

      The Union, American Federation of Government Employees, Local 446, is the exclusive representative of a unit of employees appropriate for collective bargaining at the Respondent, Veterans Affairs Medical Center, Asheville, North Carolina (VAMC Asheville). The Union and the Respondent are parties to a collective bargaining agreement (CBA) covering unit employees at VAMC Asheville.

      On December 29, 1999, an arbitrator issued an award finding that the Respondent violated the CBA. The award required the Respondent to provide premium pay to certain of its registered nurses. On February 2, 2000, the Respondent filed exceptions and moved to dismiss the award, arguing that the arbitrator lacked jurisdiction over the subject matter of the award. Specifically, the Respondent asserted that an award regarding nurse compensation is contrary to 38 U.S.C. § 7422(b), which precludes bargaining over or grievance procedures covering, among other things, "the establishment, determination or adjustment of employee compensation under this title."

      On April 20, 2000, the Authority dismissed the Respondent's exceptions as untimely filed. In addition, the Authority denied the Respondent's motion to dismiss, finding that the Respondent was raising issues that could have been, but were not, raised before the arbitrator.

      Notwithstanding the Authority's dismissal and denial, the Respondent failed to perform the acts required by the award. On September 28, 2000, the General Counsel issued a complaint on the basis of the Respondent's failure to comply with the award.

      By letter dated March 5, 2001, the Respondent's Under Secretary for Health, acting pursuant to 38 U.S.C. § 7422(d), [n1]  determined that the arbitrator's decision and the subsequent ULP concern the "establishment, determination, or adjustment of employee compensation." Therefore, the Under Secretary concluded that "the issues raised in this matter are outside the scope of collective bargaining under sections 7421(a) and 7422(d) of [T]itle 38." Respondent's [ v57 p686 ] Exhibit A, March 5, 2001 Letter from the Under Secretary for Health, at 2. [n2] 

Discussion, Conclusions, and Recommendation

      In this case, the General Counsel alleges that the Respondent has committed a ULP by failing to comply with an arbitrator's award that has become final and binding. The Respondent denies that it has committed a ULP because the subject matter of the award is within the exclusive discretion of the Secretary of Veterans Affairs.

Failure to Comply with an Arbitration Award

      Under § 7122(b) of the Statute, an agency must take the action required by an arbitrator's award when that award becomes "final and binding." 5 U.S.C. § 7122(b). The award becomes "final and binding" when there are no timely exceptions filed to the award under § 7122(a) of the Statute or when timely exceptions are denied by the Authority. U.S. Dep't of Transp., FAA, Northwest Mountain Region, Renton, Wash., 55 FLRA 293, 296 (1999) (FAA); U.S. Dep't of the Air Force, Carswell Air Force Base, Tex., 38 FLRA 99, 104 (1990). An agency that fails to comply with a final and binding award violates § 7116(a)(1) and (8) of the Statute. FAA, 55 FLRA at 296.

      As a general rule, an agency cannot collaterally attack an arbitration award during the processing of a ULP complaint alleging an unlawful failure to comply with that award. U.S. Dep't of Veterans Affairs Med. Ctr., Allen Park, Mich., 49 FLRA 405, 426 (1994). However, the Authority has held that claims of statutory impediments to an arbitrator's authority could be raised to defeat finality in a ULP proceeding. Veterans Admin. Central Office, Washington, D.C., 27 FLRA 835, 838-40 (1987), affirmed sub nom. AFGE v. FLRA, 850 F.2d 782 (D.C. Cir. 1988).

      Admitting that the arbitrator's award is final and binding, the Respondent nevertheless argues that 38 U.S.C. § 7422 precludes the Authority from enforcing the award. In light of the above-cited precedent, I will an