[ v13 p351 ]
13:0351(60)CA
The decision of the Authority follows:
13 FLRA No. 60
UNITED STATES MARSHALS SERVICE
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, INTERNATIONAL
COUNCIL OF MARSHALS SERVICE LOCALS
Charging Party
Case No. 3-CA-2800
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Exceptions to the Judge's Decision were
filed by the Respondent.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions, and Recommended Order. /1A/
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 United States Marshals Service shall:
1. Cease and desist from:
(a) Failing or refusing to comply with the January 11, 1980 final
award of Arbitrator William H. Coburn issued pursuant to the Federal
Service Labor-Management Relations Statute.
(b) In any like or related manner failing or refusing to comply with
any provision of 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 with the January 11, 1980 final award of Arbitrator
William H. Coburn issued pursuant to the Federal Service
Labor-Management Relations Statute.
(b) Post at its 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 Director, United States Marshals
Service, or his designee, and shall be posted and maintained by him 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 III, 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.
Issued, Washington, D.C., November 3, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
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 comply with the January 11, 1980 final
award of Arbitrator William H. Coburn issued pursuant to the Federal
Service Labor-Management Relations Statute. WE WILL NOT in any like or
related manner fail or refuse to comply with any provision of the
Federal Service Labor-Management Relations Statute. WE WILL NOT in any
like or related manner interfere with, restrain, or coerce employees in
the exercise of any right under the Federal Service Labor-Management
Relations Statute. WE WILL comply with the January 11, 1980 final award
of Arbitrator William H. Coburn issued pursuant to the Federal Service
Labor-Management Relations Statute.
(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 III, whose address is: 1111 18th Street,
Room 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose
telephone number is: (202) 653-8507.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-2800
William C. Owen, Esq.
For the Respondent
Richard Robinson, Esq.
For the Charging Party
Erick Genser, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
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.
7101, et seq. (herein referred to as the Statute).
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, AFL-CIO, International Council of Marshals
Service Locals (herein referred to as the Union), on August 19, 1981
against the United States Marshals Service (herein referred to as
Respondent), the General Counsel of the Federal Labor Relations
Authority (herein referred to as the Authority), by the Regional
Director for Region 3, issued a Complaint and Notice of Hearing on
November 23, 1981. The Complaint alleged that Respondent violated
section 7116(a)(1) and (8) of the Statute /1/ by failing and refusing to
implement an arbitrator's award which had been sustained by the
Authority. Respondent acknowledges that it did not implement the award
but denies that its conduct violated the Statute.
A hearing on the Complaint was conducted on January 4, 1982 at which
time all parties were represented by counsel and afforded full
opportunity to adduce evidence, call, examine and cross-examine
witnesses and argue orally. The parties presented the case by
submitting a joint stipulation of facts and other documents. Oral
argument was received and Respondent also filed a brief.
Based upon my evaluation of the entire record in this matter I make
the following:
Findings of Fact
1. At all times relevant hereto the Union has been the exclusive
collective bargaining representative for various employees of Respondent
including certain Deputy Marshals.
2. In the Fall of 1978 the Union filed a grievance under the
parties' collective bargaining agreement relative to Respondent's
scheduling additional tours of duties affecting a number of Deputies
represented by the Union. /2/
3. The matter proceeded to be heard by an arbitrator on July 31 and
October 11, 1979. /3/
4. Arbitrator William H. Coburn issued his Opinion and Award (the
award) on January 11, 1980 finding, inter alia, that Respondent's
conduct regarding the establishment of the additional tours of duty was
a violation of the parties' collective bargaining agreement. The award
provided that Respondent return the Deputies to their regularly
scheduled tour of duty and cease and desist from changing tours of duty
in violation of the agreement.
5. On February 8, 1980 the U.S. Department of Justice, acting on
behalf of Respondent, filed timely exceptions to the arbitrator's award
with the Authority.
6. On April 29, 1981, the Authority issued its decision in this
matter concluding no basis existed for finding the arbitrator's award
deficient and, accordingly, sustained the arbitrator's award. American
Federation of Government Employees, AFL-CIO, International Council of
U.S. Marshals Service Locals and The Department of Justice, U.S.
Marshals Service, 5 FLRA No. 66 (1981).
7. By letter dated May 26, 1981 the Union requested Respondent
implement the arbitrator's award.
8. Respondent filed in the United States Court of Appeals for the
Ninth Circuit a petition for review of the Authority's decision in 5
FLRA No. 66. /4/
9. On June 24, 1981 Respondent informed the Union that it was
declining to implement the award on the grounds that an appeal of the
Authority's decision in 5 FLRA No. 66 had been taken to the Ninth
Circuit.
10. Subsequent to the filing of the unfair labor practice charge in
this matter on August 19, 1981 alleging Respondent unlawfully refused to
implement the arbitrator's award and the issuance of the Complaint on
November 23, 1981, Respondent, on December 23, 1981, filed a motion to
dismiss the Complaint with the Regional Director of the Authority's
Region 3.
11. In its motion to dismiss the Complaint Respondent contends: (a)
that the only means available to the Authority to enforce compliance
with its decision in 5 FLRA No. 66 is a petition to an appropriate U.S.
Court of Appeals pursuant to section 7123(b) of the Statute, /5/ and;
(b) the Complaint does not, on its face, state an unfair labor practice.
12. On December 28, 1981 the Regional Director for Region 3 referred
Respondent's motion to dismiss to the Chief Administration Law Judge and
the matter is now before the undersigned for ruling thereon.
Discussion and Conclusions
Respondent basically contends that the Authority's decision in 5 FLRA
No. 66 sustaining the arbitrator's award is an "order of the Authority"
within the meaning of section 7123(b) of the Statute and, in the
circumstances herein, the Authority is "constrained" to directly seek
enforcement by petitioning an appellate court without recourse to the
Statute's unfair labor practice procedures. Respondent acknowledges
that the unfair labor practice procedures would be an appropriate
vehicle to litigate the matter if, assuming the legality of Authority's
decision sustaining the award, /6/ the case involved a question of
whether its compliance was sufficient rather than, as herein, a
situation where a total refusal to comply exists.
I reject Respondent's contentions. Neither the express language of
Statute nor the implementing regulations suggest that the Authority is
obliged to directly seek court enforcement of an order sustaining an
arbitrator's award rather than proceed on an unfair labor practice
charge to seek compliance with its order, regardless of whether a total
or partial failure to comply exists. Nor do any cases litigated under
the Statute indicate that the Authority is so constrained. While none
of the parties to this proceeding have cited any Authority case which
has directly treated the specific question at issue herein, the
Authority has previously addressed requests that it seeks court
enforcement of arbitration awards. In one such case, Headquarters, U.S.
Army Communications Command, et al., Fort Huachuca, Arizona and American
Federation of Government Employees Local 1662, 2 FLRA 786 (1980), the
union requested the enforcement of an arbitrator's award to which no
exception to the Authority was filed. The Authority denied the request
because there was no "order of the Authority" to be enforced under
section 7123(b) of the Statute. The Authority further noted that the
parties "were primarily disputing whether the activity has complied with
the arbitrator's award," although it appears from the summary of facts
set forth in the decision that the dispute actually involved whether the
activity's conduct amounted to full or only partial compliance with the
award. The Authority concluded in Fort Huachuca that "ready means
(were) available for resolving this type of dispute" and suggested that:
" . . . where appropriate, the unfair labor practice procedures
under section 7116 of the Statute may be used when there is a
dispute concerning an alleged failure of a party to abide by a
final and binding arbitration award. (Footnote). Indeed, the
foregoing proceedings are particularly equipped to resolve
compliance disputes such as here involved since those disputes
frequently require credibility and other factual determinations
dependent upon the taking of testimony in such hearings." /7/
It is arguable that the exhortation in Fort Huachuca to use unfair
labor practice procedures in cases where compliance with a final order
of the Authority is in dispute is limited to situations where the
alleged failure to abide by an award is a partial failure and not a
complete refusal as in the case herein. However, a subsequent case,
Department of the Air Force, Air Force Logistics Command and American
Federation of Government Employees, AFL-CIO, 4 FLRA No. 96 (1980),
indicates that the Authority intended no such limiting implications in
Fort Huachuca. Air Force Logistics Command involved a situation where
the union sought to have the Authority seek court enforcement of an
award of an arbitration panel whose actions were authorized by the
Federal Service Impasses Panel. The arbitration panel issued an
interest arbitration award and, for reasons unimportant herein, the
agency asserted it was not a part of the proceedings and failed to abide
by the arbitration award. The Authority, citing Fort Huachuca, found
that since the arbitration award of the panel had not been before the
Authority it was not an "order of the Authority" which may be enforced
under section 7123(b) of the Statute. More important to the case
herein, however, is that the Authority also noted it had stated in Fort
Huachuca:
" . . . where appropriate, the unfair labor practice procedures
under section 7116 of the Statute may be used when there is a
dispute concerning an alleged failure of a party to abide by a
final and binding arbitration award . . . "
Thus, although Air Force Logistics Command, as the case herein,
involved a complete refusal to comply with an arbitration award, the
Authority saw fit to note the availability of unfair labor practice
procedures nonetheless. Accordingly, I find a compelling suggestion by
the Authority in the above cases that the General Counsel is not
precluded in the matter herein from utilizing the unfair labor practice
procedures of the Statute to redress Respondent's total failure to
comply with the arbitrator's award sustained by the Authority.
Respondent also contends that the Authority is precluded by section
7116(d) of the Statute from issuing a complaint in this case. Section
7116(d) provides, in relevant part, that:
" . . . issues which can properly be raised under an appeals
procedure may, in the discretion of the aggrieved party, be raised
under the grievance procedure or as an unfair labor practice under
this section, but not under both procedures."
Respondent reasons that since the underlying issue of the
negotiability of scheduling additional tours of duty arose in the
context of a grievance and proceeded to arbitration, recourse to unfair
labor practice proceedings is not available thereafter. I reject this
contention. At issue herein is not how to process the "underlying
issue" to final resolution by the Authority but rather, what procedure
is available to obtain enforcement of a final order of the Authority.
Moreover, the Authority in Fort Huachuca and Air Force Logistics
Command, supra, has indicated that the unfair labor practice procedures
are indeed available in these situations, as explained above.
I also reject Respondent's contention that the Authority must utilize
the enforcement proceedings under section 7123(b) since the agency has
timely exercised its right to appeal the Authority's decision and order
of 5 FLRA No. 66 on the grounds that it "involves an unfair labor
practice" within the meaning of section 7123(a)(1) of the Statute. /8/
While Respondent has instituted an action for judicial review claiming
that the arbitrator's award which the Authority sustained in 5 FLRA No.
66 involved an unfair labor practice, the Solicitor of the Authority, on
behalf of the Authority, has taken the position before the United States
Court of Appeals for the Ninth Circuit that the matter does not involve
an unfair labor practice within the meaning of section 7123(a)(1) of the
Statute and therefore, the Court lacks subject matter jurisdiction.
Thus, the Authority, through its Solicitor, has already rejected
Respondent's claim that the arbitration award "involves an unfair labor
practice" and I am obligated to abide by decisions of the Authority.
Accordingly, since the Authority, through the Solicitor, has indicated
it rejects Respondent's position that the award "involves an unfair
labor practice" I reject Respondent's arguments in this regard.
Respondent argues next that the Complaint does not, in its face,
state an unfair labor practice. The Complaint alleges a failure and
refusal to implement the arbitrator's award of January 10, 1980 and that
such conduct violates section 7116(a)(1) and (8) of the Statute. The
Authority in Fort Huachuca and Air Force Logistics Command, supra,
stated that section 7116 of the Statute may be used to resolve a dispute
involving a failure to comply with an arbitrator's award thereby
indicating that an allegation of a failure to comply with an
arbitrator's award sufficiently sets forth a course of action under
section 7116 of the Statute.
Further, section 7121 of the Statute mandates that collective
bargaining agreements provide for grievance procedures which include
binding arbitration for unresolved grievances. /9/ The provisions of
section 7122 of the Statute assure that the arbitrator's award will
culminate in a final and binding status. /10/ Thus, the Statute
provides rather elaborate procedures to assure a peaceful final and
binding resolution of disputes. To hold that one may abrogate with
impunity the clear obligation which follow from this statutory design
would be ludicrous indeed, especially where the Statute itself in
Section 7116(a)(8) specifically declares failure or refusal to comply
with any provision of the Statute to be an unfair labor practice.
Accordingly, I concluded that the Complaint adequately states a cause
of action and Respondent's failure and refusal to comply with the
arbitration award as sustained by the Authority violated section
7116(a)(1) and (8) of the Statute. /11/
Having found and concluded that Respondent has violated section
7116(a)(1) and (8) of the Statute /12/ and having rejected Respondent's
arguments with regard thereto, /13/ I recommend the Authority issue the
following:
ORDER
Pursuant to section 2423.20 of the Federal Labor Relations
Authority's regulations and section 7118 of the Statute, it is hereby
ordered that the United States Marshals Service shall:
1. Cease and desist from:
(a) Failing and refusing to implement the January 11, 1980
award rendered by arbitrator William H. Coburn.
(b) In any like or related manner interfering with,
restraining, or coercing 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) Implement the January 11, 1980 award rendered by arbitrator
William H. Coburn.
(b) Post at all of its facilities where employees represented
by the American Federation of Government Employees, AFL-CIO,
International Council of Marshals Service Locals, the employees'
exclusive representative, are located, copies of the attached
Notice marked "Appendix", on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms they shall
be signed by the Director, United States Marshals Service, and
shall be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including bulletin boards and
all other places where notices to employees are customarily
posted. The Director shall take reasonable steps to insure that
such notices are not altered, defaced, or covered by any other
materials.
(c) Pursuant to Section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director of
Region 3, Federal Labor Relations Authority, 1111 18th Street,
NW., Suite 700, Washington, D.C. 20036, in writing within 30 days
from the date of the Order as to what steps have been taken to
comply herewith.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: June 23, 1982
Washington, D.C.
APPENDIX
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 refuse to implement the January 11, 1980 award of arbitrator
William H. Coburn. 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 Federal Service Labor-Management Relations Statute. WE
WILL implement the January 11, 1980 award rendered by arbitrator William
H. Coburn.
(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,
Federal Labor Relations Authority, Region 3, 1111 18th Street, N.W.,
Suite 700, Washington, D.C. 20036 and whose telephone number is (202)
653-8452.
--------------- FOOTNOTES$ ---------------
/1A/ On June 24, 1981, the Respondent filed a petition with the U.S.
Court of Appeals for the Ninth Circuit seeking a review of the
Authority's decision sustaining the arbitrator's award in American
Federation of Government Employees, AFL-CIO, International Council of
Marshals Service Locals and the Department of Justice, U.S. Marshals
Service, 5 FLRA No. 66 (1981). The Authority's decision involved the
same arbitration award, the compliance with which is the subject of the
unfair labor practice complaint herein. Respondent's appeal of the
Authority's decision was one basis for its defense in failing to comply
with the arbitrator's award. In its dismissal of the appeal for lack of
jurisdiction, which was issued subsequent to the Judge's recommended
decision herein, the Court adopted the Authority's position that where
arbitration has been selected as the mechanism by which to settle a
dispute subject to resolution through either arbitration or unfair labor
practice procedures, and the Authority reviews exceptions to an
arbitrator's award, the Court of Appeals has no jurisdiction to review
the Authority's determination unless an unfair labor practice is either
an explicit or necessary ground for the final order issued by the
Authority. In so finding, the Court rejected the Respondent's
contention that the Authority's decision in 5 FLRA No. 66 involved
unfair labor practice matters. United States Marshals Service and the
Department of Justice v. Federal Labor Relations Authority, 708 F.2d
1417 (9th Cir. 1983).
/1/ Section 7116 of the Statute provides, in relevant part:
"(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency -
"(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
"(8) to otherwise fail or refuse to comply with any provision
of this chapter."
/2/ Joint Exhibit No. 1.
/3/ The collective bargaining agreement provided for binding
arbitration.
/4/ On March 30, 1982, the Authority, through its Solicitor, filed
with the Ninth Circuit a motion to dismiss Respondent's petition for
review and a memorandum in support thereof. The issues have now been
briefed by the parties and oral argument before the Ninth Circuit is
scheduled for sometime after August 13, 1982.
/5/ Section 7123(b) of the Statute provides:
"(b) The Authority may petition any appropriate United States
court of appeals for the enforcement of any order of the Authority
and for appropriate temporary relief or restraining order."
/6/ The legality of the Authority's decision is 5 FLRA No. 66 is not
litigable in this forum.
/7/ The footnote in the cited portion of Fort Huachuca provided:
"Judicial review and enforcement of orders issued by the Authority in
such proceedings may then be sought under section 7123(a) and (b) of the
Statute."
/8/ Section 7123(a)(1) of the Statute provides:
"(a) Any person aggrieved by any final order of the Authority
other than an order under -
(1) section 7122 of this title (involving an award by an
arbitrator), unless the order involves an unfair labor practice
under section 7118 of this title . . . may . . . institute an
action for judicial review of the Authority's order . . . "
/9/ Section 7121 provides, in relevant part:
"(a)(1) . . . any collective bargaining agreement shall provide
procedures for the settlement of grievances, including questions
of arbitrability (and) the procedures shall be the exclusive
procedures for resolving grievances which fall within its coverage
. . .
"(b) Any negotiated grievance procedure referred to in
subsection (a) of this section shall - . . .
"(3) include procedures that -
"(C) provide that any grievance not satisfactorily settled
under the negotiated grievance procedure shall be subject to
binding arbitration which may be invoked by either the exclusive
representative or the agency."
/10/ Section 7122 provides, in relevant part:
"(a) Either party to arbitration under this chapter may file
with the Authority an exception to any arbitrator's award pursuant
to the arbitration . . . If upon review the Authority finds that
the award is deficient -
"(1) because it is contrary to any law, rule, or regulations;
or
"(2) on other grounds similar to those applied by Federal
courts in private sector labor-management relations;
the Authority may take such action and make such
recommendations concerning the award as it considers necessary,
consistent with applicable laws, rules, or regulations.
"(b) If no exception to an arbitrator's award is filed under
subsection (a) of this section 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 . . . "
/11/ Cf. Division of Military and Naval Affairs, State of New York,
Albany, New York, 8 FLRA 158 (1982), at 172 and 173, which deals with an
activity's analogous refusal to comply with a decision and order of the
Federal Service Impasses Panel.
/12/ Respondent's motion to dismiss is therefore denied.
/13/ Additional arguments raised by Counsel for Respondent have been
considered and rejected for reasons set forth in my treatment of
Respondent's other arguments, above.