21:0941(111)CA - Military Sealift Command (Atlantic) and National Maritime Union of America -- 1986 FLRAdec CA
[ v21 p941 ]
21:0941(111)CA
The decision of the Authority follows:
21 FLRA No. 111
MILITARY SEALIFT COMMAND (ATLANTIC)
Respondent
and
NATIONAL MARITIME UNION OF
AMERICA, AFL-CIO
Charging Party
Case No. 2-CA-40424
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 issue concerns whether the Respondent
violated seciton 7116(a)(1) 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 exceptions were filed
pursuant to section 7122 of the Statute and which therefore had become
final and binding.
II. Background and Judge's Conclusion
The Judge found that the Respondent had complied with the award of
the arbitrator except the part of his award which called for the payment
of interest and which the Respondent argued before the Judge was illegal
based on Authority precedent. The Judge concluded that the Respondent
violated section 7116(a)(1) and (8) of the Statute by failing to comply
fully with the arbitrator's award to which no exceptions had been filed,
and ordered the Respondent to pay interest at "the prevailing legal
rate" on the backpay awarded, retroactive to July 1, 1983.
III. Positions of the Parties
In its exceptions, the Respondent, citing the Authority's earlier
decision in Portsmouth Naval Shipyard and Federal Employees Metal Trades
Council, 7 FLRA 30 (1981), /1/ argues that the arbitration award in this
case, to the extent that it requires the payment of interest, is
contrary to law. Therefore, the Respondent argues that its failure to
comply with that part of the award did not violate the Statute. The
Respondent further argues that the Authority's decision in Veterans
Administration Medical Center, Phoenix, Arizona, 15 FLRA 706 (1984), /2/
should not be dispositive of this case because the Authority's rationale
in that case was erroneous in light of its decision in Portsmouth Naval
Shipyard. The General Counsel and the Charging Party, in their
respective oppositions to the Respondent's exceptions, assert that the
Respondent's contentions are without merit and that the Judge's
conclusion is correct and amply supported by Authority precedent. The
Charging Party's cross-exceptions also take issue with the Judge's
comments on page 5 of his Decision as to how he would view this matter
if it were a case of first impression.
IV. Analysis
In this case the Respondent primarily seeks to raise the illegality
of the arbitrator's award as a defense to the complaint alleging that
its noncompliance was an unfair labor practice. In United States Air
Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 15 FLRA 151, 153 (1984), affirmed sub nom. Department of the Air
Force, et al. v. Federal Labor Relations Authority, 775 F.2d 727 (6th
Cir. 1985), the Authority stated:
(W)here a party seeks to challenge the propriety of an
arbitration award, the appropriate mechanism for doing so, as
Congress clearly intended, is through the filing of exceptions to
that award under the provisions of section 7122(a) of the Statute.
Where a party fails to avail itself of this procedure within the
allotted time period, the award becomes final and binding and an
agency is required to take such actions as are required by the
award . . . . To allow a party which has not filed exceptions to
an award to defend its failure to implement that award in a
subsequent unfair labor practice proceeding on grounds that should
have been raised as exceptions to the award under section 7122 . .
. would circumvent the procedures provided in section 7122(a) and
frustrate Congressional intent with respect to the finality of
arbitration awards.
Subsequently, in Department of Defense, Department of the Navy,
United States Marine Corps, United States Marine Corps Air Station,
Cherry Point, North Carolina, 15 FLRA 686 (1984) and Veterans
Administration Medical Center, Phoenix, Arizona, 15 FLRA 705 (1984), the
Authority, relying on the rationale expressed in Wright-Patterson Air
Force Base, Ohio, found in each case that the agency had failed to file
timely exceptions to the arbitrator's award, and therefore violated the
Statute by virtue of its failure to comply with the award. The
Authority specifically reaffirms its rationale expressed in
Wright-Patterson Air Force Base, Ohio, and its holdings in the latter
two cases.
Turning to the instant case, the Authority finds, based on the above
decisions and for the reasons expressed in those cases, that the
Respondent was required to file timely exceptions to the award of the
arbitrator under section 7122 if it wished to raise a contention that
all or part of that award was contrary to law. This is exactly what the
agency did in Portsmouth Naval Shipyard, and the Authority upheld the
agency's contention that a requirement to pay interest on the award of
shift premium was unlawful. However, where the Respondent has failed to
raise the issue in that forum, it cannot subsequently seek to raise the
contention as a defense for its refusal tp comply with the award in an
unfair labor practice proceeding under section 7118 of the Statute. /3/
Accordingly, the Respondent violated section 7116(a)(1) and (8) of the
Statute by failing to fully comply with the arbitrator's award which had
become final and binding, as required by section 7122 of the Statute.
Finally, in view of the foregoing, the Authority finds it unnecessary
to address the Judge's comments with regard to how he would have decided
the case if it had been a matter of first impression.
V. 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 thus affirms those rulings. The Authority has considered
the Judge's Decision, the exceptions to that Decision, the positions of
the parties, and the entire record, and adopts the Judge's findings,
conclusions, and recommended Order. We therefore conclude that the
Respondent's refusal to pay interest at the prevailing legal rate on the
backpay awarded, as 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 and therefore a 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 Military Sealift Command (Atlantic) shall:
1. Cease and desist from:
(a) Failing and refusing to fully implement Arbitrator Earle Warren
Zaidins' arbitration award rendered on April 6, 1984.
(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 Earle Warren Zaidins' April 6, 1984
arbitration award, including the payment of interest at the prevailing
legal rate on the backpay awarded to all affected employees retroactive
to July 1, 1983.
(b) Post at all facilities of the Military Sealift Command (Atlantic)
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 Commander, Military Sealift Command (Atlantic), or a
designee, and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards and
other places where notices to employees in the bargaining unit
represented by the National Maritime Union of America, AFL-CIO, are
customarily posted. Reasonable steps shall be taken to ensure 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 II, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with the Order.
Issued, Washington, D.C., May 22, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, 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 or refuse to fully implement Arbitrator Earle Warren
Zaidins' arbitration award rendered on April 6, 1984.
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 Earle Warren Zaidins' April 6,
1984 arbitration award, including the payment of interest at the
prevailing legal rate on the backpay awarded to all affected employees
retroactive to July 1, 1983.
(Agency or 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, Federal Labor Relations Authority, Region II, whose address
is: 26 Federal Plaza, Room 2237, New York, New York 10278, and whose
telephone number is: (212) 264-4934.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-40424
MILITARY SEALIFT COMMAND (ATLANTIC)
Respondent
and
NATIONAL MARITIME UNION OF AMERICA, AFL-CIO
Charging Party
Sidney H. Kalban, Esquire
Phillip & Cappiello, P.C.
For the Charging Party
Thomas F. Wood, Esquire
For the Respondent
Jon R. Steen, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /4/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns whether
Respondent violated Sections 16(a)(1) and (8) of the Statute by refusing
to pay interest awarded by an arbitrator where no exceptions were filed
and the award had become final. Respondent fully complied with the
decision and award of the arbitrator except as to the payment of
interest which it asserts is illegal. This case was initiated by a
charge filed on July 20, 1984 (Jt. Exh. 1), which alleged violations of
sections 16(a)(1), (5) and (8) of the Statute and named as parties the
Department of the Navy, Military Sealift Command, and Military Sealift
Command (Atlantic). A Complaint and Notice of Hearing issued on
September 28, 1984 (Jt. Exh. 3) and set the hearing for January 7, 1985.
A First Amended charge was filed on December 17, 1984 (Jt. Exh. 2),
named only the Military Sealift Command (Atlantic) and alleged
violations of Sections 16(a)(1) and (8); and an Amended Complaint and
Notice of Hearing issued on December 26, 1984, named only Military
Sealift Command (Atlantic), alleged only violations of Sections 16(a)(1)
and (8), and again set the hearing for January 7, 1985, (Jt. Exh. 5),
pursuant to which a hearing was duly held on January 7, 1985, in New
York City before the undersigned, at which time the parties submitted a
Stipulation, G.C. Exh. 1, which constitutes the entire factual record in
this proceeding (G.C. Exh. 1, par. 25). At the close of the hearing, by
agreement of the parties, February 21, 1985, was fixed as the date for
mailing post-hearing briefs and each party timely mailed an excellent
brief, received on, or before, February 25, 1985, which have been
carefully considered.
Facts
Respondent and the Charging Party, National Maritime Union of
America, AFL-CIO (hereinafter also referred to as "NMU") were parties to
a collective bargaining agreement which expired June 15, 1981 (Jt. Exh.
7). The terms and conditions of employment set forth in the agreement
have continued to remain in full force and effect (G.C. Exh. 1, Par.
6(b)). On or about, April 6, 1984, Arbitrator Earle Warren Zaidins
issued an award in FMCS Case No. 83K/28835 involving Respondent and NMU,
which provided that Respondent was "to pay all affected employees the
contractual longshore rate of pay, retroactive to July 1, 1983 . . .
together with the prevailing legal rate of interest thereon" (G.C. Exh.
1, Par. 7; Jt. Exh. 8). No exceptions to the award were filed. By
September 1, 1984, Respondent had complied with the award with respect
to the payment of backpay (G.C. Exh. 1, Par. 11). However, Respondent
has refused to pay interest on the backpay based on Portsmouth Naval
Shipyard, 7 FLRA 30 (1981), which provides that interest payments in an
arbitration award are not authorized by the Back Pay Act. (G.C. Exh. 1,
Par. 12).
Discussion and Conclusions
In Portsmouth Naval Shipyard, 7 FLRA NO. 9, 7 FLRA 30 (1981), which
was before the Authority on an exception to that portion of an
arbitration award directing the payment of interest, the Authority
modified the award to strike out "with interest." The Authority noted
that it was well settled that, " . . . unless authorized by an express
provision in a relevant statute or contract, interest is not available
against the Federal Government." (7 FLRA at 32); that it had been held
that the Back Pay Act prior to the 1978 amendments did not authorize an
award of interest (Fitzgerald v. Staats, 578 F.2d 435, 438 (D.C. Cir.
1978), cert. denied, 439 U.S. 1004 (1978); Van Winkle v. McLucas, 537
F.2d 246 (6th Cir. 1976), cert. denied 429 U.S. 1093 (1977)); and that,
" . . . The legislative history to the Civil Service Reform Act
indicates Congressional intent to continue this express omission in the
Back Pay Act. In this regard, the final version of the bill passed by
the House, H.R. 11280, included among its provisions amending the Back
Pay Act a specific provision for the payment of backpay, 'plus 5
percent.' (footnote omitted). However, the version of the bill reported
out of the Senate-House Conference Committee, which was ultimately
enacted and signed into law . . . did not contain this 'plus 5 percent'
provision. This action 'strongly militates against a judgment that
Congress intended a result that it expressly declined to enact.' See
Gulf Oil Corporation v. Copp Paving Company, Inc., 419 U.S. 186, 200
(1974) /6/ (7 FLRA at 32-33)
(6) Accordingly, we respectfully disagree in the present case
with the decision of the Court of Appeals for the Fifth Circuit is
Payne v. Panama Canal Co., 607 F.2d 155 (5th Cir. 1979), in which
the court upheld, under the Back Pay Act as amended in 1978, a
district court decision granting interest as part of an award of
backpay." (7 FLRA at 33).
The Authority concluded,
"Thus, the settled rule that interest is proscribed when not
expressly authorized is controlling in this case. Because no
statutory provision expressly permits the interest awarded by the
Arbitrator, his award must be modified accordingly." (7 FLRA at
33).
In American Federation of Government Employees, Local 1778, AFL-CIO,
10 FLRA No. 62, 10 FLRA 346 (1982), the Authority denied the award of
interest against a union, stating,
"Inasmuch as interest is not available against the Federal
Government in the absence of an express provision in a relevant
statute or contract, and no relevant statutory provision expressly
permits the payment of such interest by Federal agencies (see,
Portsmouth Naval Shipyard and Federal Metal Trades Council
(Fallon, Arbitrator), 7 FLRA No. 9 (1981), the Authority concludes
that it would not effectuate the purposes of the Statute to
require labor organizations to pay interest in similar
circumstances as included by the Judge is his recommended order.
Accordingly, the Judge's recommendation that the Respondent be
required to pay interest . . . is rejected." (10 FLRA at 352, n.
6).
The Authority has recognized that an agency may discontinue an
unlawful past practice upon discovery of its illegality with no
obligation to bargain concerning the decision to discontinue such
practice, although it must, upon request, bargain upon impact and
implementation. See, for example, Department of the Interior, U.S.
Geological Survey, Conservation Division, Gulf of Mexico Region,
Metairie, Louisiana, 9 FLRA No. 65, 9 FLRA 543 (1982); and, under
Executive Order 11491, as amended, it was recognized that " . . . any
provision of an agreement which conflicts with law, the Order, or
regulations of appropriate authorities outside the agency would be void
and unenforceable. See Section VII of the Council's Report and
Recommendations (1975)." (Defense General Supply Center, A/SLMR No. 790,
7 A/SLMR 102, 104 n. 4).
Confronted with the issue of an arbitration award, to which no
exception had been filed, which required an improper payment, i.e., a
payment contrary to law, the Federal Labor Relations Council, in
Department of the Army, Aberdeen Proving Ground, FLRC No. 74A-46, 3 FLRC
188 (1975), while first stating that, " . . . A party's refusal to
comply with an arbitration award . . . where the party has failed to
file exceptions . . . is a failure to comply with its obligations under
the Order and may be deemed an unfair labor practice. And such a party
may not relieve himself of such obligations under the Order by
requesting an opinion from another agency such as the United States
General Accounting Office. Hence, such action is not a defense to an
unfair labor practice charged for failure to implement an arbitration
award . . . ." (3 FLRC at 194), nevertheless, held,
"However, the Assistant Secretary, in fashioning a remedial
order in unfair labor practice cases, may not require a party to
engage in an illegal action. In this connection, the Assistant
Secretary's remedial order must 'effectuate the purposes of the
Order.' (footnote omitted). Obviously, it would be inconsistent
with such purposes to require a party to violate applicable law,
appropriate regulation or the Order (footnote omitted). Thus,
where the Assistant Secretary finds that an agency has committed
an unfair labor practice under Executive Order 11491, as amended,
by its failure to abide by an arbitration award to which no
exceptions were filed with the council, the Assistant Secretary
may not, as part of his remedial order, direct the agency to
comply with an award which the Comptroller General has determined,
under 31 U.S.C. Section 74, to call for an improper payment and,
hence, to be contrary to law." (3 FLRC at 195)(Emphasis supplied).
In his Supplemental Decision and Order, A/SLMR No. 518, 5 A/SLMR 349
(1975), the Assistant Secretary did not require the Respondent,
Department of the Army, Aberdeen Proving Ground, to implement the
arbitration award involved by making payment to the Complainant,
International Assocation of Machinists and Aerospace Workers, Local
Lodge 2424, ordered by the arbitrator, although posting and a cease and
desist order issued, see 5 A/SLMR at 351.
In this case the arbitrator was wrong in awarding interest on
backpay; Respondent was wrong in failing to file exceptions to the
award; but two wrongs do not make a right. If this were a case of
first impression, I should follow without hesitation the decision of the
Federal Labor Relations Council in Department of the Army, Aberdeen
Proving Ground, supra, and the Supplemental Decision of the Assistant
Secretary therein, supra, and find that Respondent committed an unfair
labor practice; but I would not order Respondent to pay the interest
ordered by the arbitrator because such payment is contrary to law. Such
disposition would be, in my opinion, wholly consistent with Section
22(b) of the Statute, i.e. "If no exception to an arbitrator's award is
filed . . . the award shall be final and binding" to the extent that
such award does not require an action contrary to law. In this
instance, the Authority has clearly and directly held that interest may
not be awarded under the Back Pay Act, and Arbitrator Zaidins' award of
interest was contrary to law and unlawful. The employees were never
entitled to interest and neither the error of the arbitrator in granting
it nor the error of Respondent in failing to file an exception to the
award should result either in their receiving a windfall benefit or
Respondent, as part of a remedial order, being directed to make an
illegal payment.
But this is not a case of first impression. The Authority, in a
series of cases, has reached a conclusion contrary to that of the
Federal Labor Relations Council. Thus, in Department of Defense,
Department of the Navy, United States Marine Corps, United States Marine
Corps Air Station, Cherry Point, North Carolina, 15 FLRA No. 137, 15
FLRA 686 (1984), the Authority held, in part, as follows:
" . . . In the Authority's view, any contention that an
arbitrator's award is deficient because it is contrary to any law
. . . must be made by invoking the procedure established by
Congress in section 7122(a) of the Statute. If a party fails to
file exceptions to an arbitrator's award . . . the award . . .
becomes 'final and binding' and 'An agency shall take the actions
required by an arbitrator's award' . . . any failure to comply
with a validly obtained arbitrator's award to which no exceptions
have been timely filed constitutes a failure to comply with the
requirements of section 7122 of the Statute in violation of
section 7116(a)(1) and (8) of the Statute. Any other conclusion
would render section 7122(b) meaningless . . . ." 15 FLRA at
687-688).
See, also, Department of Health and Human Services, Region II, 15
FLRA No. 139, 15 FLRA 710 (1984).
In Veterans Administration Medical Center, Phoenix, Arizona, 15 FLRA
No. 138, 15 FLRA 706 (1984), the Authority had before it precisely the
same issue as presented in the present case, namely, the refusal to pay
interest on an award based on the contention that interest payments are
precluded by the Back Pay Act and therefore would be unlawful. There,
as here, no exceptions to the arbitrator's award were filed. The
Authority held as follows:
"The relevant issue and supporting arguments raised by the
parties are substantially identical to those involved in
Department of Defense, Deparment of the Navy, United States Marine
Corps Air Station, Cherry Point, North Carolina, 15 FLRA No. 137
(1984), wherein the Authority, after denying Respondent's defense
that compliance would require an unlawful act, concluded that any
failure to comply with a validly obtained arbitrator's award to
which no exceptions have been timely filed constitutes a failure
to comply with the requirements of section 7122 of the Statute in
violation of section 7116(a)(1) and (8) of the Statute.
Accordingly, the Authority concludes herein that the Respondent
violated section 7116(a)(1) and (8) of the Statute be failing to
fully comply with an arbitrator's award . . . ." (15 FLRA at 707).
That there be no possible doubt, the Authority's Order specifically
provided that the Veterans Administration Medical Center, Phoenix,
Arizona, inter alia,
"(a) Fully comply with Arbitrator August G. Eckhardt's . . .
award, including the payment of 10% per year interest on the
grievant's back pay. . . ." (15 FLRA at 707).
As I am bound by the Authority's decisions, I am constrained to
conclude, not only that Respondent violated Sections 16(a)(1) and (8) of
the Statute by failing to comply fully with Aribitrator Zaidins' award,
dated April 6, 1984 (Jt. Exh. 8), but that Respondent be ordered to pay
interest at "the prevailing legal rate" on the backpay awarded,
retroactive to July 1, 1983.
Accordingly, having found that Respondent violated Sections 16(a)(1)
and (8) of the Statute by its failure to fully comply with an
arbitrator's award, it is recommended that the Authority adopt the
following:
ORDER
Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. Section
7118(a)(7); and Section 2423.29 of the Regulation, 5 C.F.R. Section
2423.29, the Authority hereby orders that Military Sealift Command
(Atlantic) shall:
1. Cease and desist from:
(a) Failing and refusing to fully implement Arbitrator Earle Warren
Zaidins' arbitration award rendered on April 6, 1984.
(b) In any like or related manner interfering with, 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
purpose and policies of the Statute:
(a) Fully comply with Arbitrator Earle Warren Zaidins' April 6, 1984,
arbitration award, including the payment of interest at the prevailing
legal rate on the backpay awarded to all affected employees retroactive
July 1, 1983.
(b) Post at all facilities of Military Sealift Command (Atlantic)
copies of the attached Notice on forms to be furnished by the Federal
Labor Relations Authority. Upon reciept of such forms, they shall be
signed by the Commander, Military Sealift Command (Atlantic), or his
designee, and shall be posted and maintained for 6o consecutive days
thereafter, in conspicuous places, including all bulletin boards and
other places where notices to members of the bargaining unit represented
by the National Maritime Union of America, AFL-CIO, 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 of Region II, Federal Labor
Relations Authority, 26 Federal Plaza, Room 2237, New York, New York
10278, in writing, within 30 days of the date of this Order as to what
steps have been taken to comply herewith.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 21, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) In Portsmouth Naval Shipyard, an arbitration case involving
timely filed exceptions to an arbitrator's award, the Authority on
review modified the arbitrator's award after having determined that the
Back Pay Act did not authorize the payment of interest.
(2) In Veterans Administration Medical Center, Phoenix, Arizona,
involving the same issue as in this case and where no exceptions to the
arbitrator's award were filed, the Authority rejected the agency's
defense that interest payments were precluded by the Back Pay Act and
therefore unlawful, and concluded that the agency violated section
7116(a)(1) and (8) of the Statute by failing to fully comply with an
arbitrator's award as required by section 7122 of the Statute.
(3) In addition to the cases cited above, see also United States
Marshals Service v. FLRA, 778 F.2d 1432 (9th Cir. 1985), affirming the
Authority's decision in United States Marshals Service, 13 FLRA (1983).
The Marshals Service case involved an agency's refusal to comply with an
unfair labor practice remedial order of the Authority directing
compliance with an arbitrator's award, even though the Authority in a
separate proceeding under section 7122 of the Statute previously had
rejected the agency's contentions that the arbitrator's award was
deficient. In affirming the Authority's remedial order, the court
specifically declined to review the Authority's original determination
that the award was not deficient, but examined the award only to
determine whether an unfair labor practice was committed -- i.e.,
whether the agency had failed to comply with the arbitrator's award as
the Authority ordered it to do. The court held that the agency's
refusal to abide by the Authority's order enforcing a final arbitration
award was an unfair labor practice.
(4) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g., Section 7116(a)(8) will be referred to, simply,
as "Section 16(a)(8)."
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 or refuse to fully implement Arbitrator Earle Warren
Zaidins' arbitration award rendered on April 6, 1984.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL fully comply with Arbitrator Earle Warren Zaidins' April 6,
1984, arbitration award, including the payment of interest at the
prevailing legal rate on the backpay awarded to all affected employees
retroactive to July 1, 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 II,
whose address is: Room 2237, 26 Federal Plaza, New York, New York,
10278 and whose telephone number is: (212) 264-4934.