[ v20 p450 ]
20:0450(51)CA
The decision of the Authority follows:
20 FLRA No. 51
U.S. CUSTOMS SERVICE, WASHINGTON, D.C.
AND U.S. CUSTOMS SERVICE, NORTHEAST
REGION, BOSTON, MASSACHUSETTS
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 1-CA-50086
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, and the General Counsel and the Charging Party
filed oppositions to the Respondent's exceptions.
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.
The Authority agrees with the Judge that the Arbitrator's award dated
July 20, 1983, is the operative award in this case. In so concluding,
we note particularly that the Authority, in its order dismissing
exceptions to that award (United States Customs Service, Region I,
Boston, Massachusetts, 15 FLRA No. 155(1984)), found that the July 20,
1983 award "did not modify (the Arbitrator's earlier) award in any way
as to give rise to the deficiencies alleged in the Activity's
exceptions." The Judge's recommended Order, which we here adopt,
requires full compliance with the clear terms of the Arbitrator's July
20, 1983 award.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the U.S. Customs Service, Washington, D.C. shall:
1. Cease and desist from:
(a) Failing and refusing to fully implement Arbitrator Jerome S.
Rubenstein's final award rendered on July 20, 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 Jerome S. Rubenstein's July 20, 1983
arbitration award, including payment to Edward Pacewicz for deprived
overtime opportunity from April 1, 1983, through May 21, 1984, at the
rate set forth in the Arbitrator's award dated July 20, 1983.
(b) Post at all facilities of the U.S. Customs Service, Northeast
Region, Boston, Massachusetts, 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 Commissioner for the Northeast
Region, 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 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 2323.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, 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., October 11, 1985
Henry B. Frazier, III, Acting
Chairman
William J. McGinnis, Jr., 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 Jerome S.
Rubenstein's final arbitration award rendered on July 20, 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
Federal Service Labor-Management Relations Statute.
WE WILL fully comply with Arbitrator Jerome S. Rubenstein's July 20,
1983 arbitration award, including payment to Edward Pacewicz for
deprived overtime opportunity from April 1, 1983, through May 21, 1984,
at the rate set forth in the Arbitrator's award dated July 20, 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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region I,
whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts
02166, and whose telephone number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 1-CA-50086
Martin J. Ward, Esquire
On Brief: John de Romoet, Esquire
For the Respondent
Brian W. Mellor, Esquire
On Brief: Sean J. Rogers, Esquire
For the Charging Party
Carol Waller Pope, 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. 7101,
et seq., /1/ and the Final Rules and Regulations issued thereunder, 5
C.F.R. 2423.1, et seq., concerns whether Respondent has complied with
the terms of an arbitration award. Respondent asserts that it has fully
complied with the award; General Counsel asserts that it has not. This
case was initiated by a charge filed on November 19, 1984 (G.C. Exh.
1A), which alleged violations of Secs. 16(a)(1), (5) and (8) of the
Statute; and a First Amended charge filed on January 29, 1985 (G.C.
Exh. 1C), which alleged violation only of Secs. 16(a)(1) and (8) of the
Statute. The Complaint and Notice of Hearing issued on January 29, 1985
(G.C. Exh. 1E), alleged violations of Secs. 16(a)(1) and (8) of the
Statute, and set the hearing for March 5, 1985. By order dated February
22, 1985 (G.C. Exh. 2G) the date of the hearing was rescheduled for
April 9, 1985, pursuant to which a hearing was duly held on April 9,
1985, in Boston, Massachusetts, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues
involved and presented oral argument. At the close of the hearing, May
9, 1985, was fixed as the date for mailing post-hearing briefs, which
time was subsequently extended, initially upon motion of the General
Counsel, joined in by the other parties, for good cause shown, to May
23, 1985, and subsequently, upon motion of the Respondent, to which the
other parties did not object, for good cause shown, was further extended
to May 30, 1985. Respondent, Charging Party and General Counsel each
timely mailed a brief, received on, or before June 3, 1985, which have
been carefully considered. Upon the basis of the entire record, /2/
including my observation of the witnesses and their demeanor, I make the
following findings and conclusions:
Stipulation
The parties stipulated, at the commencement of the hearing, as
follows:
"1. That the U.S. Customs Service has taken steps to restore
to Edward Pacewicz, annual leave, sick leave, in the aggregate sum
of $1,381.41, for denied overtime opportunities through March 31,
1983, in accordance with the Arbitration Decision and Award, dated
July 20, 1983.
"2. The Arbitration Decision and Award, dated July 20, 1983
provides for the U.S. Customs Service to compensate Mr. Pacewicz
for any other period of time Mr. Pacewicz was or may be deprived
of overtime opportunities.
"3. For the period of April 1, 1983 through May 21, 1984, Mr.
Pacewicz was not in the full rotation and overtime opportunities,
other than those available at Romar Terminal, were not available
to him during this period of time.
"4. Had Mr. Pacewicz been assigned to the full rotation during
the period of April 1, 1983 through May 21, 1984, additional
overtime opportunities would have been available to him."
(Stipulation, Tr. pp. 7-8).
Findings
1. Mr. Edward J. Pacewicz is a Customs Inspection in the Port of
Boston; has been employed by the Customs Service for approximately 17
years (Tr. 19); and is the current President of Chapter 133 of the
National Treasury Employees Union (hereinafter referred to as "NTEU").
2. Mr. Pacewicz testified that he was not working, and was on annual
leave and sick leave from March 18, 1982, through July 14, 1982 (Tr. 20)
and Joint Exhibit 5 shows that from July 15, 1982, through February 6,
1983, Mr. Pacewicz was also not working but received benefits under the
Federal Employees' Compensation Act. Mr. Pacewicz testified that during
the period February 7, 1983, through March 31, 1983, he worked at Romar
Terminal only (Tr. 20-21); and that during the period March 31, 1983,
through May 31, 1984, he continued to work only at Romar Terminal (Tr.
29) and stated that he did not " . . . know what the reason . . . " (Tr.
29-30) was for his assignment to Romar Terminal only and for his not
rotating to other facilities (Tr. 21, 29-30). Mr. Pacewicz's statement
that he did not know why he was assigned only to Romar Terminal and not
placed in rotation is doubtful for any period (See Resp. Exh. 1, medical
certification of Dr. Collins, dated February 4, 1983, tendered by Mr.
Pacewicz) and was demonstrably false on, and after, receipt of
Respondent's letter of October 25, 1983 (Resp. Exh. 2).
3. The medical certificate of Dr. Collins, dated February 4, 1983,
tendered by Mr. Pacewicz stated:
"This patient may return to work/school on Monday 2/7/83. No
prolonged standing or sitting & no heavy lifting of objects"
(Resp. Exh. 1).
4. Mr. John V. Linde, District Director of Customs, testified that
he had Mr. Pacewicz assigned to Romar Terminal from February 7, 1983, to
May 21, 1984, to comply with the arbitrator's decision. Mr. Linde
stated,
"I was trying to comply with an Arbitrator's Decision that said
that he was to be brought back to work in accordance with the
doctor's limitations; therefore we assigned him to Romar." (Tr.
39).
Mr. Linde stated that Mr. Pacewicz was not offered overtime assignments,
other than at Romar, for the reason that,
"Well, if you can't work the full rotation as a working
inspector, how can you work it on overtime? You have the same
dangers of him hurting himself again on overtime as you would have
on regular duty." (Tr. 40).
Mr. Linde further stated,
"Now, at Romar, it is a little different than the rest of the
stations; because at Romar, we have two inspectors assigned all
the time. At the rest of the stations, we either have one
inspector assigned or the duties are more than just examining
freight at the other stations.
"For instance, if he were assigned to Castle Island, he might
be required to board ship, which is climbing up Jacob's ladder,
and such and such, which takes different physical qualities than
sitting at a desk at Romar.
. . . .
"JUDGE DEVANEY: Does the Inspector do any lifting or climbing
in a container?
"THE WITNESS: By regulations, no, but by actual practice, a
lot of times an Inspector, to look at something better, might want
to move it himself and might have to move it himself.
. . . .
"THE WITNESS: Basically, and the limits of the duty at Romar,
in that-- like I say, if he worked any place else in the Seaport,
he could possibly be required to board a ship, for instance, or be
called to do other duties; where at Romar, there are two people
there. If there were any difficult duties to so, the other man
could do it.
"JUDGE DEVANEY: How much of the Inspector's work would be
boarding ships?
"THE WITNESS: Not a great bit. Maybe-- I forget what the
average is. Maybe one a week or two a week.
. . . .
"JUDGE DEVANEY: Now, what about the function that I would be--
the only function of a Customs Inspector that I would be familiar
with is either at the airport or at a dock facility where
passengers are getting on or getting off.
"Is that other than light duty?
"THE WITNESS: That-- in this case, it could be light duty for
someone with a different set of physical restrictions; but in
this case, Mr. Pacewicz had come back to work before and worked in
the airport at the baggage belt, and hurt himself immediately;
and that is what caused this second time he was off because he
hurt his back.
"Now, to stand behind those H-belts for any length of time was
against the doctor's recommendation in his letter that he said he
couldn't stand for-- I forget what it exactly was, but he couldn't
stand for any length of time; and the job at the airport requires
you to stand for three or four hours at a time, sometimes.
"JUDGE DEVANEY: What would full rotation mean?
"THE WITNESS: Full rotation would mean that you spend two
weeks at Romar-- you spend two weeks at each of our freight
releasing facilities, plus the passenger terminal. . . . " (Tr.
48-50).
4. In October, 1983, Mr. Linde requested a current doctor's
certificate to see if Mr. Pacewicz should be retained on light duty (Tr.
47, Resp. Exh. 2). Dr. Collins responded by letter dated December 19,
1983, which concluded:
" . . . The one problem that arises appears to be in situations
which require prolonged periods of standing such as when Mr.
Pacewicz might be working at the international passenger terminal
at Logan Airport. At that time, Mr. Pacewicz would require the
use of a stool so that he could sit on occasion at his work."
(Resp. Exh. 8).
Mr. Linde responded to Mr. Pacewicz by letter dated January 6, 1984
(Resp. 7), in which he stated, inter alia, that he found the information
provided by Dr. Collins incomplete, requested that Mr. Pacewicz have his
physician review the stated standard physical qualification requirements
and state whether Mr. Pacewicz was restricted in his ability to function
with regard to any requirement. Mr. Linde also noted,
" . . . your request for use of a stool behind passenger
processing belts was denied in March, 1982, for safety and
operational reasons and that determination remains unchanged."
(Resp. Exh. 7) /3/
Eventually, Mr. Pacewicz was examined by Dr. Harris, an associate of Dr.
Collins, who, by letter dated April 23, 1984 (Resp. Exh. 11), advised,
in part, that:
"I feel that this individual is fully able to carry out his
duties as a customs inspector GS-9 . . . this patient can do
activities that require prolonged standing. . . . The use of a
stool on an intermittent basis may significantly reduce this risk
but I do not feel that this risk is high enough as to restrict him
from doing prolonged standing activities." (Resp. Exh. 11).
By letter dated May 18, 1984, Mr. Linde advised Mr. Pacewicz that,
"The results of a fitness-for-duty examination of you by Dr.
Scott Harris have been evaluated.
"The results indicate that you are physically capable of
resuming the full range of a Customs Inspector's duties.
"Therefore, as of Monday, May 21, 1984, you will be returned to
full rotation. Please contact Mr. Ralph Batchelder concerning
your assignment." (Resp. Exh. 12).
5. Arbitrator Jerome S. Rubenstein's Award of January 24, 1983 (Case
No. 82K/20406), provided, in pertinent part, as follows:
" . . .
"1. The grievance of Edward Pacewicz is hereby sustained.
"2. The Employer violated Art. 19, sec. 13 of the collective
bargaining agreement by its failure to grant light duty to
Pacewicz in response to his request of March 15, 1982.
"3. The Employer violated Art. 20, sec. 18 of the collective
bargaining agreement by its imposition of a limitation upon
temporary assignment thereunder to two periods of two weeks each.
"4. As the proximate effect of the Employer's contract
violation, Pacewicz sustained an injury on March 18, 1982 which
occasioned his loss of work and consequent loss of earnings and
other contract rights from that day through November 4, 1982.
"5. The loss of work and loss of earnings and other contract
rights described in paragraph "4" may have continued beyond
November 4, 1982, and may continue as of this date and into the
future.
"6. The Employer shall, if it has not already done so, return
Pacewicz to work promptly upon his tendering to it a medical
certificate authorizing his return to work.
"7. Effective as of such time as Pacewicz is or has been
returned to work, the Employer is obligated to assign to him as
light duty such work within his classification as comport with any
restriction imposed upon his activities by the said medical
certificate.
"8. No time limitation shall be imposed unilaterally by the
Employer upon Pacewicz's performance of light duty assignment;
but the Employer may, within its discretion, from time to time
alter Pacewicz's light duty assignment, provided no alteration has
the effect of requiring him to perform activities which do not
comport with restrictions imposed pursuant to a current medical
certificate of which a copy has been tendered to the Employer.
"9. The Employer shall forthwith make Pacewicz whole for any
loss of earnings and other contract rights less such offsets as
may be appropriate or may be required by statute or regulation,
for the period March 18, 1982 through November 4, 1982.
"10. The Employer shall make Pacewicz whole for any loss of
earnings and other contract rights . . . for the period commencing
November 5, 1982 and ending with (sic) his return to work.
. . . . " (Jt. Exh. 3)
6. Arbitrator Jerome S. Rubenstein in his Opinion of January 24,
1983, which accompanied his Award, supra, stated, in part, as follows:
"Although the collective bargaining agreement contains no
explicit definition of the term (light duty), it does provide a
hint in Art. 13, sec. 53. For a pregnant woman, 'light duty' may
consist of 'temporary modification of her working conditions or a
temporary reassignment to other available work for which she is
qualified.' These examples point to the way the term is used in
Art. 19, sec. 13. Pacewicz was correct in supposing that use of a
stool in the passenger module ('temporary modification of . . .
working conditions') constituted light duty and Linde was equally
correct in supposing that exemption from rotation ('temporary
reassignment') constituted light duty." (Jt. Exh. 3, Opinion, p.
33).
. . . .
"The plain intention of Art. 19, sec. 13 is that the Employer
has the obligation, with certain enumerated restrictions, to
provide work of a 'light duty' nature to employees whose physical
impairments resulting from injury disable them from performing all
the duties of their regular jobs. . . . " (Jt. Exh. 3, Opinion, p.
35).
* * * *
"At such time as Pacewicz is cleared to return to work, it is
likely that his physician will express in writing some opinion as
to any limitation or restriction that should be imposed upon his
duties. If such writing meets the test for a 'certificate' under
Art. 19, sec. 13 the Employer will be required to make an
assignment consonant with the physician's opinion and for as long
a time as may be required by the state of Pacewicz's health. Such
an assignment may take the form of an exemption from rotation, of
allowance of the use of a stool in the airport passenger module--
of (sic) whatever seems to make good sense and carries out the
spirit of this decision.
"Since the uncontroverted testimony shows that Pacewicz was
absent from his job from March 18, 1982 through at least November
4, 1982 as the direct consequence of a reinjury be sustained . . .
I shall order that he be made whole for any loss of earnings and
other contract rights in that period, subject to applicable
offsets. I shall further order that he be made whole for any loss
of earnings and other contract rights be thereafter sustained, and
any future loss of earnings and other contract rights that may be
occasioned by his inability to return to work. . . . " (Jt. Exh.
3, Opinion, pp. 39-40)
7. Respondent filed exceptions to the Arbitrator's Award which were
dismissed by the Authority as untimely filed. United States Customs
Service, 11 FLRA No. 87, 11 FLRA 503(1983) (due February 22; received
February 23).
8. In his Award, the Arbitrator retained jurisdiction, " . . . until
sixty days from this date or sixty days from the date of Pacewicz's
return to work, which ever is later, for the purpose of supervising
compliance. . . . " (Jt. Exh. 3, Par. 11). On March 22, 1983, NTEU
invoked the Arbitrator's continuing jurisdiction; a hearing was held on
April 26 and 27, 1983; /4/ and on July 20, 1983, Arbitrator Jerome S.
Rubenstein issued an "Award" (Case No. 82K/20406, which provided, in
part, as follows:
"1. As the proximate effect of the Employer's contract
violation specified in my award of January 24, 1983 or of the
Employer's failure to accord him, upon his return to duty,
overtime opportunities approximately equivalent to those accorded
to other full-time customs inspectors in the Boston area, Edward
Pacewicz sustained redressable damage from March 18, 1982 through
March 31, 1983, except for the period July 15, 1982 through
February 6, 1983, when his receipt of benefits under the Federal
Employee's Compensation Act constituted a bar thereto.
"2. For the periods March 18, 1982 through July 14, 1982 and
February 7, 1983 through March 31, 1983, and any other period of
time when Pacewicz was or may be deprived of overtime
opportunities approximately equivalent to those accorded to other
full-time customs inspectors in the Boston area, he is entitled to
compensation at the rate of thirty-three percent (33%) of the
average overtime earnings of such other customs inspectors.
"3. For the period March 18, 1982 through July 14, 1982 the
Employer shall forthwith pay to Pacewicz, as recompense for
deprived overtime opportunities, the sum of nine hundred
fifty-three dollars and twenty-five cents ($953.25).
"4. For the period February 7, 1983 through March 31, 1983 the
Employer shall forthwith pay to Pacewicz, as recompense for
deprived overtime opportunities, the sum of four hundred
twenty-eight dollars and sixteen cents ($428.16).
* * * *
"8. A hearing will be held at 10:00 a.m., Wednesday, January
4, 1984 . . . for the purpose of considering compliance with my
award of January 24, 1983 in the period April 1, 1983 through
December 31, 1983. . . . " /5/ (Jt. Exh. 5).
9. Arbitrator Jerome S. Rubenstein in his Opinion of July 20, 1983,
which accompanied his Award, supra, stated, in part, as follows:
"On January 24, 1983, I issued an award sustaining the
grievance of Edward Pacewicz, requiring the Employer to return him
to work upon certain conditions described therein, and requiring
the Employer to make him whole for lost earnings and other
contract rights. I retained jurisdiction for the purpose of
supervisory compliance." (Jt. Exh. 5, Opinion, p. 1).
. . . .
"John Linde, District Director, testified that when he returned
Pacewicz to work after the issuance of my original award, he
placed him in a light duty situation at the Romar Terminal, a job
in which there had been no overtime opportunities, but in which
Pacewicz would be allowed to work overtime should the occasion
arise (Tr. p. 22). /6/ When Linde's testimony on this point was
concluded, I made the following statement:
' . . . As I intimated earlier, the overtime, in my view, is to
be shared by all the people that is, the computation is to be
based on the average overtime opportunity throughout the category
of customs inspector.
. . . .
'I did not impose any requirement that he be returned to the
full rotation and allowed to use the stool because that would
have, I thought, been an unnecessary incursion upon Mr. Linde's
managerial prerogative. Mr. Linde Chose, for reasons of his own,
reasons that in my view are not reasons of prevention of hazard,
to keep Mr. Pacewicz from the international terminal and therefore
from the rotation.
'Such a decision does not affect Mr. Pacewicz's right to
overtime entitlement as if he were engaged in the full round of
rotational work. . . . " (Jt. Exh. 5, Opinion, p. 6).
"As I noted in the excerpt from Tr. pp. 23-24 /7/ quoted above
(p. 6), Pacewicz should upon his return to work have been restored
to the full rotational cycle of work-- albeit with the use of a
stool where needed-- and the Employer's failure to do so was
contrary to the mandate of my earlier award. It thus follows that
he should have been allowed to participate with other customs
inspectors in overtime opportunities. I shall; accordingly,
award him overtime compensation for the period when he was out on
annual or sick leave. For the time being, I shall confine my
award to the first quarter of 1983-- 53 days at $8.0784 or
$428.1552, rounded to $428.16." (Jt. Exh. 5, Opinion, p. 27).
10. On August 15, 1983, Respondent filed exceptions to the July 20,
1983, Award which were dismissed as untimely. United States Customs
Service, Region 1, Boston, Massachusetts, 15 FLRA No. 155, 15 FLRA
816(1984). The Authority stated, in part, as follows:
" . . . On July 20, 1983, the Arbitrator responded to the
Activity's request for clarification, essentially reiterating
determinations set forth in his January 24, 1983, award . . . "
(15 FLRA at 816).
. . . .
"In arbitration cases that have come before the Authority, it
is not uncommon for an arbitrator to have retained jurisdiction
for a period of time to resolve questions or problems that might
arise concerning the award. However, retention for such purposes
does not render an award interlocutory or extend the time limit
for filing exceptions. . . . Nor does a party's request for
clarification of an award and the mere possibility of modification
of the award by the arbitrator render the award interlocutory. . .
. The Authority has held, however, in cases in which an
arbitrator, in response to a clarification request, modifies an
award in such a way as to give rise to alleged deficiencies, the
filing period begins with the modified award. U.S. Department of
the Interior, Bureau of Land Management, Eugene District Office
and National Federation of Federal Employees, Local 1911, 6 FLRA
401, 403 n. 2(1981). In this case, however, the Arbitrator did
not modify his award in any way as to give rise to the
deficiencies alleged in the Activity's exceptions. Indeed, the
Activity predicated the instant exceptions and the exceptions to
the January 24 award on substantially identical grounds.
"Thus, the time limit for filing exceptions to the Arbitrator's
award in this case began on the date the award was served on the
parties, i.e., January 24, 1983, and expired on February 22, 1983.
The exceptions filed by the Activity on August 15, 1983, are
therefore untimely." (15 FLRA at 817)
CONCLUSIONS
Paragraph 5 of the Complaint alleges the two Awards issued by
Arbitrator Jerome S. Rubenstein, the first on January 24, 1983, and the
second on July 20, 1983. The relevant portions of each Award, as well
as pertinent portions of each accompanying Opinion of the Arbitrator,
are set forth in Paragraphs 5, 6, 8 and 9 of the Findings hereinabove.
Paragraph 7 of the Complaint alleges that Respondent failed and refused
to comply with Sec. 22(b) of the Statute in that,
"(a) Since on or about August 30, 1984 Respondent has refused,
contrary to the final and binding award in Case No. 82K/20406, to
compensate Edward Pacewicz in accordance with a specified formula
for lost overtime opportunities during the period from April 1,
1983 to May 21, 1984." (G.C. Exh. 1E).
The First Amended charge (G.C. Exh. 1C) had quite specifically premised
the violation on Respondent's failure and refusal to comply with the
Award of July 20, 1983. The two Awards are quite different. The Award
of January 24, 1983, provided that,
"The Employer shall . . . return Pacewicz to work promptly upon
his tendering to it a medical certificate authorizing his return
to work." (Jt. Exh. 3, Award, Par. 6).
" . . . the Employer is obligated to assign to him (Pacewicz)
as light duty such work within his classification as comport with
any restriction imposed upon his activities by said medical
certificate. (id., Par. 7).
"No time limitation shall be imposed unilaterally by the
Employer upon Pacewicz's performance of a light duty assignment;
but the Employer may, within its discretion . . . alter Pacewicz's
light duty assignment, provided no alternation has the effect of
requiring him to perform activities which do not comport with
restrictions imposed pursuant to a current medical certificate. .
. . " (id., Par. 8).
"The Employer shall . . . make Pacewicz whole for any loss of
earnings . . . for the period March 18, 1982 through November 4,
1982." (id., Par. 9).
"The Employer shall make Pacewicz whole for any loss of
earnings . . . for the period commencing November 5, 1982 and
ending with (sic) his return to work." (id., Par. 10).
In his Opinion of January 24, 1983, the Arbitrator further stated, in
part, that, "For a pregnant woman, 'light duty' may consist of
'temporary modification of her working conditions or a temporary
reassignment to other available work for which she is qualified.' These
examples point to the way the term is used in Art. 19, sec. 13.
Pacewicz was correct in supposing that use of a stool in the passenger
module . . . constituted light duty and Linde was equally correct in
supposing that exemption from rotation . . . constituted light duty"
(Jt. Exh. 3, Opinion, p. 33); "The plain intention of Art. 19, sec. 13
is that the Employer has the obligation . . . to provide work of a
'light duty' nature to employees whose physical impairments resulting
from injury disable them from performing all the duties of their regular
jobs. . . . " (id., p. 35); " . . . the employer will be required to
make an assignment consonant with the physician's opinion and for as
long a time as may be required by the state of Pacewicz's health. Such
an assignment may take the form of an exemption from rotation . . . I
shall further order that he be made whole for any loss of earnings . . .
occasioned by his inability to return to work. . . . " (id., pp. 39-40).
Pursuant to the Award of January 24, 1983, Mr. Pacewicz was returned
to duty on February 7, 1983, and, further pursuant to the Award of
January 24, 1983, was assigned to "light duty" at Romar Terminal. The
uncontradicted testimony of Mr. Linde, which was wholly unrebuttal, was
that the only duty assignment which comported with restrictions imposed
by the medical certificate tendered by Mr. Pacewicz was duty at Romar
Terminal; and that medical restrictions imposed precluded Mr. Pacewicz
working at any other location, not merely at Logan International
Airport. If there were only the Award of January 24, 1983, the record
shows full compliance with the Award of January 24, 1983. But the
Arbitrator issued a second Award on July 20, 1983, which, wholly
contrary to his Award of January 24, 1983 ("assign to him as light duty
such work within his classification as comport with any restriction
imposed . . . by said medical certificate; and loss of earnings shall
end with his return to work"), awarded Mr. Pacewicz overtime
compensation from the date of his return to work whether or not overtime
was worked. Thus, the Award of July 20, 1983, provided, in part, that
for the period:
" . . . February 7, 1983 through March 31, 1983, and any other
period of time when Pacewicz was or may be deprived of overtime
opportunities approximately equivalent to those accorded to other
full-time customs inspectors in the Boston area, he is entitled to
compensation at the rate of thirty-three percent (33%) of the
average overtime earnings of such other customs inspectors." (Jt.
Exh. 5, Award, Par. 2).
In his Opinion of July 20, 1983, the Arbitrator further stated, in part,
that: " . . . the overtime, in my view, is to be shared by all the
people-- that is, the computation is to be based on the average overtime
opportunity throughout the category of customs inspector. . . . I did
not impose any requirement that he be returned to the full rotation . .
. Mr. Linde chose . . . to keep Mr. Pacewicz from . . . the rotation.
Such a decision does not affect Mr. Pacewicz's right to overtime
entitlement." (Jt. Exh. 5, Opinion, p. 6); " . . . Pacewicz should upon
his return to work have been restored to the full rotational cycle of
work. . . . It follows that he should have been allowed to participate
with other customs inspectors in overtime opportunities. I shall,
accordingly award him overtime compensation for the period when he was
out on annual or sick leave. For the time being, I shall confine my
award to the first quarter of 1983-- 53 days at $8.0784 or $428.1552
rounded to $428.16." (id., p. 27). Indeed, the parties stipulated,
inter alia, that,
"2. The Arbitration Decision and Award, dated July 20, 1983
provides for the U.S. Customs Service to compensate Mr. Pacewicz
for any other period of time (after March 31, 1983 - Par. 1 of
Stipulation) Mr. Pacewicz was or may be deprived of overtime
opportunities.
"3. For the period in April 1, 1983 through May 21, 1984, Mr.
Pacewicz was not in the full rotation. . . .
"4. Had Mr. Pacewicz been assigned to the full rotation during
the period of April 1, 1983 through May 21, 1984, additional
overtime opportunities would have been available to him."
(Stipulation, Tr. 7-8).
Although it is clear that the July 20, 1983, Award substantially
modified the January 24, 1983, Award, Respondent asserts, in part, that:
"The operative 'Arbitrator's award in this case is dated
January 24, 1983,' as the FLRA held in its Order Dismissing
Exceptions, dated August 30, 1984. Jx 6. Therefore, the second
award in this case must be read to conform to the first award.
Any inconsistancies between the awards must be resolved in favor
of the first award since the FLRA found that this award was
'(t)he' award in this case and refused to allow the respondent to
appeal the second award (although the respondent's appeal was
filed within the 30 day time limit) on the apparent basis that the
arbitrator in his second award 'essentially reiterat(ed)
determinations set forth in his January 24, 1983, award." Jx 6.
"Since the FLRA has ruled that the first award is the operative
award in this case and that the respondent could not appeal the
second award, then as a matter of fundamental due process, the
first award must rule in this case and the latter award must
either be ignored or harmonized in conformity with the first
award.
"In the first award, the respondent was ordered to make Mr.
Pacewicz whole financially only for those periods during which Mr.
Pacewicz was out of work. Additionally, Mr. Pacewicz was to be
assigned work that accommodated his physical limitations, which
work 'may take the form of an exemption from rotation. . . . ' Jx
6, p. 40.
"It is undisputed that on February 7, 1983 the respondent did
return Mr. Pacewicz to a work assignment that was an exemption
from rotation as a way of accommodating Mr. Pacewicz's physical
restrictions as stated on his medical certificate and as a way of
complying with the arbitrator's award. . . . By the arbitrator's
award, the respondent was required to place Mr. Pacewicz on light
duty, and it did so.
"The arbitrator's award, dated January 24, 1983, also required
that Edward Pacewicz be compensated only for time he was out of
work. The complaint in the instant case relates to the
respondent's failure to pay Mr. Pacewicz overtime pay for overtime
not worked after Mr. Pacewicz returned to work (even through Mr.
Pacewicz was allowed to work overtime on his light duty assignment
T. 51). The award under discussion, the January 24, 1983, does
not require the respondent to pay Mr. Pacewicz for any time period
after his return to work. . . . " (Respondent's Brief, pp. 4-6).
As stated above, I quite agree with Respondent's analysis of the
January 24, 1983, Award and that Respondent has fully complied with the
terms of the January 24, 1983, Award; but I do not agree with
Respondent's assertion that the operative Award in this case is the
Award of January 24, 1983. While it is true that the Authority
commented that the Arbitrator on July 20, 1983, essentially, reiterated,
" . . . determinations set forth in his January 24, 1983, award. . . . "
(15 FLRA at 816), the Authority, in dismissing exceptions to the July
20, 1983, Award, did not hold that the Arbitrator did not modify his
January 24, 1983 Award by his July 20, 1983 Award, but, rather, held,
" . . . In this case, however, the Arbitrator did not modify
his award in any way as to give rise to the deficiencies alleged
in the Activity's exceptions. Indeed, the Activity predicated the
instant exceptions and the exceptions to the January 24 award on
substantially identical grounds." (15 FLRA at 817). /8/
Accordingly, the operative Award in this case is the Award of July 20,
1983. As the parties stipulated;
"The Arbitration Decision and Award, dated July 20, 1983
provides for the U.S. Customs Service to compensate Mr. Pacewicz
for any other period of time (after March 31, 1983) Mr. Pacewicz
was or may be deprived of overtime opportunities." (Stipulation,
Par. 2, Tr. 8).
The Award of July 20, 1983, arose under the Agreement effective June 30,
1980 (Jt. Exh. 1); was applicable to all periods that Mr. Pacewicz
continued to be deprived of overtime opportunities; was not made
subject to any future modification of the then applicable collective
bargaining agreement; and even assuming, but specifically not deciding,
that, as Respondent asserts (Respondent Brief pp. 12-13) Article 19,
Section 14 of the Agreement effective December 14, 1983 (Jt. Exh. 2),
/9/ might limit future awards for overtime, the Award of July 20, 1983,
which arose under the prior Agreement, did not terminate with the
effective date of the 1983 Agreement. I have considered Respondent's
other contentions and find them without merit.
As Respondent concedes that it has not complied with the terms of the
July 20, 1983, Award, which I find to be the operative Award in this
case, and which has become final and binding upon dismissal of
Respondent's exceptions thereto, United States Customs Service, Region
1, Boston, Massachusetts, supra, Respondent violated Secs. 16(a)(1) and
(8) of the Statute, 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);
Department of Health and Human Services, Region II, 15 FLRA No. 139, 15
FLRA 710(1984); Veterans Administration Medical Center, Phoenix,
Arizona, 15 FLRA No. 138, 15 FLRA 706(1984); U.S. Army Health Clinic,
Fort Ritchie, Maryland, 9 FLRA No. 133, 9 FLRA 935(1982); Military
Sealift Command (Atlantic) and National Maritime Union of America,
AFL-CIO, Case No. 2-CA-40424 (OALJ-85-62, March 21, 1985).
Accordingly, having found that Respondent violated Secs. 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 Sec. 18(a)(7) of the Statute, 5 U.S.C. 7118(a)(7), and
Sec. 2423.29 of the Regulations, 5 C.F.R. 2423.29, the Authority hereby
orders that U.S. Customs Service, Washington, D.C. and U.S. Customs
Service Northeast Region, Boston, Massachusetts, shall:
1. Cease and desist from:
(a) Failing and refusing to fully implement Arbitrator Jerome
S. Rubenstein's Final Award rendered on July 20, 1983.
(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 Jerome S. Rubenstein's July
20, 1983, arbitration award, including payment to Mr. Edward
Pacewicz for deprived overtime opportunity from April 1, 1983,
through May 21, 1984, at the rate set forth in the Arbitrator's
Award dated July 20, 1983.
(b) Post at all facilities of U.S. Customs Service Northeast
Region, Boston, Massachusetts, copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such form, they shall be signed by the
Commissioner for the Northeast Region, or 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 are customarily posted. Reasonable
steps shall be taken to insure that such notices are not
alternate, defaced, or covered by any other material.
(c) Pursuant to Sec. 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region I, Federal
Labor Relations Authority, 441 Stuart Street, 9th Floor, Boston,
Massachusetts 02116, in writing, as to what steps have been taken
to comply herewith.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: June 21, 1985
Washington, D.C.
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 Jerome S.
Rubenstein's final arbitration award rendered on July 20, 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
Federal Service Labor-Management Relations Statute.
WE WILL fully comply with Arbitrator Jerome S. Rubenstein's July 20,
1983, Arbitration award, including payment to Mr. Edward Pacewicz for
deprived overtime opportunity from April 1, 1983, through May 21, 1984,
at the rate set forth in the Arbitrator's Award dated July 20, 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 I,
whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts
02166, and whose telephone number is: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statutory reference, e.g., Section 7116(a)(1) will be referred to,
simply as "Sec. 16(a)(1)."
/2/ General Counsel filed a Motion to Correct Hearing Transcript, to
which no opposition was filed, and, having found the requested
corrections wholly meritorious, except that the requested correction on
page 23, line 4, is to be found on page 28, line 4, the Motion is
granted and the transcript is hereby corrected as follows:
Presently reads Changed to
p. 7, 1. 23 "in" "and
p. 28, 1. 4 "$10, 381.31" "$1,381.31"
p. 29, 1. 16 "1982" "1983"
p. 56, 1. 13 "MACOL" "MAKE whole"
p. 89, 1. 8 "insert "Ms. Pope"
as the speaker"
p. 95, 1. 16 "reming" "remind"
/3/ See, U.S. Customs Service, Region I (Boston, Massachusetts), 15
FLRA No. 67, 15 FLRA 309(1984), in which the Authority held, in part, as
follows:
" . . . the Authority finds that the use of stools by employees
engaged in inspectional duties concerned a method or means of
performing such work . . . and that therefore the Activity's
decision to remove them was outside the requested scope of
bargaining under section 7106(b)(1) of the Statute. . . . " (15
FLRA at 311).
/4/ On March 23, 1983, the Arbitrator scheduled further hearings for
April 26 and 27; and set April 15 as date for submission of statements
of position by each party. On April 7, Respondent agreed to the April
15 date for submission of its position but stated that it could not hold
April 26-27 open for a hearing and requested the Arbitrator, after
reviewing the position statements, if a hearing were then deemed
necessary, to contact Respondent to fix a hearing date. On April 11,
the Arbitrator, in a tartly worded reply, informed Respondent the
hearing would be held April 26 and 27 and if Respondent were not present
it would be conducted ex parte. Shortly after the hearing opened on
April 26, Respondent requested a continuance, in part because of the
unavailability of witnesses who were out of town; the request was
denied; Respondent withdrew; and the hearing was thereafter conducted
ex parte (Jt. Exh. 5, Opinion pp. 2-3; 7-16).
/5/ No further hearings were held because of pending exceptions to
his award (Tr. 79); and Arbitrator Rubenstein died in November, 1984.
/6/ Transcript references in the quotation are to the transcript of
the April 26-27 hearing before the arbitrator.
/7/ id., n. 6.
/8/ By distinguishing U.S. Department of Interior, Bureau of Land
Management, Eugene District Office and National Federation of Federal
Employees, Local 1911, 6 FLRA 401, 403 n. 2(1981), the Authority,
necessarily relied upon the fact that there the arbitrator by his
"clarification" broadened liability to include employees who rode in
vehicles, driven by employees who drove the vehicles and who were the
only employees specifically covered by his initial award (" . . . the
Activity . . . violated the parties' collective bargaining agreement 'by
refusing to pay overtime to exempt employees who drove vehicles during
non-working hours. . . . " In his clarification, the arbitrator stated,
" . . . The award covered exempt employees who operated motor vehicles
as well as exempt employees who rode in vehicles as passengers." 6 FLRA
at 402); whereas, here, the Arbitrator, although he plainly modified
his January 24, 1983, Award as to liability for overtime after Mr.
Pacewicz returned to work, did apply the same liability for overtime as
he had previously applied to periods when Mr. Pacewicz was out of work.
/9/ Section 14 now provides, in part, as follows:
"B. An employee on light duty will be eligible for assignment
to overtime work associated with the light duty assignment. . . .
" (Jt. Exh. 2).