United States, Department of the Treasury, Internal Revenue Service, Washington, D.C. (Respondent) and National Treasury, Employees Union (Charging Party)

[ v59 p282 ]

59 FLRA No. 44

UNITED STATES
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
(Respondent)

and

NATIONAL TREASURY
EMPLOYEES UNION
(Charging Party)

SF-CA-02-0320

_____

DECISION AND ORDER

September 30, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC) and the Charging Party. The Respondent filed an opposition to the GC's and the Charging Party's exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with an arbitration award involving compensation of employees for time spent commuting to their temporary duty assignment. The Judge denied the GC's Motion for Summary Judgment and granted the Respondent's Cross-Motion for Summary Judgment, finding that the charge was untimely filed. Accordingly, the Judge recommended that the complaint be dismissed.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order. We agree with the Judge that the unfair labor practice (ULP) charge was untimely filed. Accordingly, we will dismiss the complaint.

II.      Background and Judge's Decision

      During the 1998 fiscal year, the Respondent directed Revenue Officers (ROs) and Revenue Agents (RAs) whose posts of duty were in certain offices within a 40 mile radius around the Seattle Washington Headquarters Office to report on a recurring basis to the Seattle Headquarters. Some employees' commute times increased as a result. The Charging Party sought compensation for these employees, which the Respondent denied, and a grievance was filed that led to arbitration.

      Arbitrator Samuel A. Vitaro issued his award (Vitaro award) on July 24, 2000. The Respondent filed exceptions to the award which were denied on August 17, 2001, in United States Dep't of the Treasury, Internal Revenue Service, 57 FLRA 444 (2001) (IRS). The Respondent filed a motion for reconsideration that was denied on November 27, 2001, 57 FLRA 592 (2001). [n1] On January 24, 2002, the Department of Justice (Justice), on behalf of the Respondent, filed a petition for review (petition) of the Authority's decision with the United States Court of Appeals for the District of Columbia Circuit. On February 21, 2002, the Charging Party filed the ULP charge in the case before us alleging that the Respondent violated the Statute by refusing to comply with the Vitaro award. On March 5, 2002, the Court of Appeals granted a motion for voluntary dismissal of the petition for review. On July 24, 2002, the General Counsel issued a ULP complaint alleging that the Respondent violated § 7118(a)(1) and (8) by refusing to comply with the Vitaro award. Subsequently, the General Counsel filed a motion for summary judgment and the Respondent filed a cross-motion for summary judgment.

      Noting §§ 2425.4 and 2429.17 of the Authority's Regulations, the Judge found that the Authority's decision on the Respondent's exceptions to the Vitaro award was final on August 17, 2001. [n2] The Judge then found that as a result the "six month period for filing a charge, pursuant to § 7118[(a)](4)(A) of the Statute, . . . expired on February 17, 2002, as there was no failure of the Respondent to perform a duty that prevented the timely [ v59 p283 ] filing of a charge and no concealment which prevented discovery of the alleged [ULP] during the 6 month period[.]" Judge's Decision at 6.

      The Judge rejected the GC's assertion that the Respondent's cross-motion for summary judgment improperly raised the timeliness defense. The Judge found that as there was no hearing in this case the Respondent properly and timely raised the defense in its cross-motion.

      The Judge rejected the GC's assertion that equitable principles justified an extension of the time for filing the charge. The Judge distinguished this case from Dep't of the Air Force, Headquarters, 832d Combat Support Group, DPCE, Luke Air Force Base, Ariz., 24 FLRA 1021 (1986) (Luke AFB), wherein the Authority applied the doctrine of equitable tolling. The Judge, quoting language from Equal Employment Opportunity Commission, Wash., D.C., 53 FLRA 487 (1997) (EEOC), stated:

Luke [AFB] was revisited by the Authority in . . . [EEOC] and, there, the Authority stated, in part, as follows:
Authority precedent establishes that the time limit in section 7118(a)(4)(A) is a statute of limitations and subject to equitable tolling. E.g., Picatinny Arsenal, 52 FLRA at 533-34. The Authority treated section 7118(a)(4)(A) as a statute of limitations in Luke AFB, the only case in which the Authority applied the doctrine of equitable tolling. See id. at 533 n.4 (discussing Luke AFB, 24 FLRA at 1025-26).
In Luke AFB the Authority found that the statute of limitations should have been tolled because the union did not "sleep on its rights," but diligently sought to have the arbitrator's award enforced through appropriate mechanisms. 24 FLRA at 1026. The Authority found that the union was prevented, through no fault of its own, from filing an actionable charge within the statutory time frame.
The facts in Luke AFB were, in the Authority's words, `unique.' 24 FLRA at 1026.

Judge's Decision at 7.

      Noting the above, the Judge rejected the GC's assertion that "equitable principles . . . justif[ied] extension of the time." Id. at 7. The Judge stated that in the absence of an Authority order staying its final decision it remained "effective." Id. at 9. Citing § 2429.17 of the Authority's regulations, the Judge noted that the motion for reconsideration did not stay the Authority's final decision of August 17, 2001.

      The Judge noted that the complaint alleges that "[s]ince January 24, 2002 and continuing to date, Respondent has failed and refused to take any of the actions directed by the Arbitrator's order." Id. at 9. According to the Judge, this statement implies that the Charging Party "knew on or before, January 24, 2002, that Respondent refused to take any action directed by the Arbitrator's [o]rder." Id. The Judge determined that the Charging Party had unfettered opportunity between January 24, 2002 and February 17, 2002 to timely file a charge and failed to do so. The Judge noted that the Charging Party received a letter from the Respondent on January 31, 2002 (January 31 Letter), that made it clear the Respondent was not going to comply with the award, which gave the Charging Party 17 days to file a timely charge and yet the Charging Party did nothing. [n3] Based on the evidence, the Judge found that the Charging Party did not exercise the same diligence the Authority found compelling in Luke AFB. Accordingly, the Judge found that the Charging Party did not present any reason that warranted tolling of the limitation period.

      The Judge also examined the Charging Party's opposition to the Respondent's cross motion for summary judgment. The Judge rejected the Charging Party's assertions that: (1) the cross motion was untimely for the same reasons as mentioned above with respect to the GC's motion; and (2) the charge was timely because five days should be added to the filing period in accordance with § 2429.22 of the Authority's Regulations (additional time after service by mail), finding that the Statute and Authority precedent hold that the period for filing a ULP charge for failure to comply with an award commences on the date the award becomes final and binding--which in this case was August 17, 2001. The Judge also rejected the Charging Party's contention that the award should be tolled because of equitable considerations. [ v59 p284 ]

      Based on the evidence, the Judge found "wholly without basis[]" the Charging Party's assertion that it did not view the Respondent's January 31 letter as an unequivocal refusal to implement the award. Id. at 12. Relying on Authority precedent, the Judge also rejected the Charging Party's contention that a "`clear and unequivocal [n]otice' standard should apply and the six month period should begin [only] when Respondent first clearly and unequivocally refused to comply, namely, January 31, 2002." Id.

      The Judge concluded, therefore, that because the charge was filed more than six months after the period for filing a charge under § 7118(a)(4)(A) of the Statute and as there was no reason to toll the limitation period, the charge was untimely. Accordingly, the Judge denied the GC's motion for summary judgment; granted the Respondent's cross-motion; and recommended that the complaint be dismissed.

III.      Positions of the Parties

A.     General Counsel's Exceptions

      First, the GC takes issue with the Judge's statement that the date alleged in the complaint implies that the Charging Party knew on, or before January 24, 2002, that the Respondent refused to comply with the award. The GC asserts that this allegation is contrary to the uncontroverted affidavit of a Union representative who stated that he learned the Respondent did not intend to comply with the award only when he received the January 31 letter.

      Second, the GC challenges the Judge's finding that the six month period for filing the charge expired on February 17, 2002, and his finding that the charge was untimely because it was filed after the period for filing a charge under § 7118(a)(4)(A) of the Statute. The GC argues that the charge was filed within six months of the date the ULP occurred and therefore was timely under § 7118(a)(4)(A) of the Statute.

      The GC argues that EEOC should not be applied as a per se rule and should not mandate a finding of untimeliness because many awards require a series of actions that may take place over a period of months following an award. The GC contends that in such a case the union "cannot know that the activity will not fully comply with the award until those many months have passed and it can assess the activities' actions." GC Brief to Exceptions at 7. Therefore, the GC argues that the "time period for filing [a ULP] charge alleging noncompliance with the award should commence when the noncompliance occurs, not when the award issues." Id. at 8. The GC notes that the "plain language of . . . § 7118(a)(4)(A) of the Statute states that complaints are not to issue `on any alleged [ULP] which occurred more than 6 months before the filing of the charge . . . ." Id. (emphasis added). According to the GC, while such a requirement may engender factual disputes as to what conduct evidences noncompliance with the award, it is no different than the type of factual determination that is required to determine when any other unfair labor practice was committed.

      Applying its approach to this case, the GC contends that the time limit for filing the charge "began to run when [Justice] filed its petition . . . on January 24, 2002 and [Respondent] clearly notified" the Charging Party that it would not comply with the Authority's decision. Id. at 10. The GC argues that until that time, "the Union had every right to believe that Respondent would comply" with the award "after it had exhausted its legal avenues, including the filing of the request for reconsideration with the Authority[.]" Id. at 10-11. Therefore, according to the GC, it was only when the petition was filed that the Charging Party knew with certainty that Respondent did not intend to comply with the award and since the Charging Party did not receive Respondent's notice that a petition was filed until January 31, 2002, a charge filed within a month of that date should be found to be timely under § 7118(a)(4)(A) of the Statute. The GC also takes issue with the Judge's rejection of the Charging Party's argument that the "six month period should begin when Respondent first clearly and unequivocally refused to comply" and to the Judge's conclusion that the Charging Party's argument was a "variant to a continuing violation which the Authority has rejected." GC Brief to Exceptions at 2.

      Alternatively, the GC asserts that the ULP occurred when the Respondent failed to perform the first requirement of the Vitaro award, providing a list of employees affected by the commuting issue within 45 days of the date of receipt of the award. According to the GC, the "award was final on August 17, 2001 . . . . When 45 days had passed and [the Agency] had not provided the required list . . . there was a basis to find that the [Respondent] had failed to comply with [the] award and that a ULP had occurred. Only then, . . . could the limitations period for filing this [ULP] charge commence[,]" which would have been October 1, 2001. Id. at 12.

      The GC also asserts that in United States Dep't of the Air Fore, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984) (Wright-Patterson), aff'd 775 F.2d 727 (6th Cir. 1985), as in Luke AFB, "the Authority asserted that the six months limitation period commenced on the date the [ v59 p285 ] arbitration award was final and binding without discussion or reference to Statutory language or precedent . . . . The Court of Appeals accepted the Authority's conclusion concerning the date on which the limitations period commenced without discussion." GC Brief to Exceptions at 6. The GC contends that the issue in dispute in both decisions was "not the date on which the limitations period began to run, but the date on which the arbitration award became final and binding . . . ." Id.

      For the reasons mentioned above, the GC contends that the Judge erred by denying its motion for summary judgment and dismissing the comp

B.     Charging Party's Exceptions

      The Charging Party asserts that the Judge erred by allowing the Respondent to raise the § 7118(a)(4)(A) bar to the charge in its cross-motion.

      The Charging Party also challenges the Judge's determination that the time for filing the charge under § 7118(a)(4)(A) is not extended by an additional five days under § 2429.22 of the Authority's Regulations when notice of the award's finality is given by mail. The Charging Party asserts that the 5-day rule for mailing set forth in our regulations should be applied to the period for filing a ULP charge. According to the Charging Party, § 7118(a)(4)(A) "is not a jurisdictional statute, but a statute of limitations, that may be waived or extended." Charging Party's Exceptions at 13. The Charging Party asserts that applying § 2429.22 to an Authority decision that became final on August 17, 2001, would make February 22, 2002 the deadline for filing a charge. Thus, this charge would be timely.

      The Charging Party asserts that the Judge erred by applying EEOC. According to the Charging Party, the EEOC rule "was not well-crafted to address the factual situation" presented in this case and "the clear and unequivocal notice standard applied by the National Labor Relations Board (NLRB) in determining the commencement of [a ULP] charge limitations period" should be applied by the Authority instead. Charging Party's Exceptions at 4, 5. The Charging Party contends that EEOC did not consider the applicability of the clear and unequivocal notice standard to the limitation period in § 7118(a)(4)(A) of the Statute. Further, the Charging Party asserts that the Judge's determination that its argument in favor of such a standard is a "`variant of a continuing violation theory' is incorrect[]" because the continuing violation theory is not directed at determining the commencement of the statutory limitations period. Id. at 5.

      The Charging Party argues that under EEOC, an agency's obligation to comply with an award begins when the award becomes final and binding. According to the Charging Party, such rule "commences the charge filing requirement not at the time the violation `occurred,' but rather at the time the [a]gency's obligation is established[,]" which would allow the filing of a charge on the same date the exceptions are resolved by the Authority. Id. at 6. The Charging Party asserts that such a result "is contrary to the Statute" because under § 7118 a charging party must allege that the charged party engaged in a ULP. Id. According to the Charging Party, in a noncompliance action, an agency does not engage in a ULP nor has a ULP occurred absent action by an agency indicating a refusal to comply. In the Charging Party's view, a charge alleging noncompliance must be filed based on some notice that an agency is not going to comply.

      Based on the above, the Charging Party asks the Authority to "modify or overrule EEOC and adopt the rule employed by the [NLRB] in determining the commencement period" of a ULP. Id. at 6.

      The Charging Party asserts that the Judge erred by failing to find that the filing period was equitably tolled. According to the Charging Party, after the request for reconsideration was denied, it repeatedly inquired of the Respondent's attorney as to whether the Respondent was going to comply with the award and was informed that a definite answer could not be provided because the matter had been forwarded to the Department of Treasury (Treasury) for review. Thus, the Charging Party contends that it exercised diligence by making inquiries of the Respondent. The Charging Party asserts that the limitation period was tolled by the Respondent's failure to respond with notice that it did not intend to comply, and the Respondent's concealment of its intent. [n4] 

      Citing the factors for assessing claims for equitable tolling as set forth in EEOC, the Charging Party asserts that applying these factors, especially factor 3--diligence in pursuing one's rights--the evidence establishes that sufficient grounds exist for equitable tolling. [ v59 p286 ]

C.     Respondent's Opposition

1.      Charging Party's Exceptions

      The Respondent asserts that the Judge did not err by permitting it to raise the § 7118(a) bar. The Respondent contends that because the parties agreed there were no factual issues in dispute, the Judge canceled the hearing and determined that the matter would be decided on motions for summary judgment. The Respondent contends that it was proper to raise its defense in its cross-motion because the record had not closed and the Charging Party and the GC had an opportunity to address its defense.

      The Respondent disputes the Charging Party's contention that § 2429.22 of the Authority's Regulations is applicable.

      The Respondent contends that EEOC is consistent with the Statute. The Respondent asserts that the Charging Party's position ignores the fact that § 7118(a)(4) and Authority precedent put all parties to an arbitration on notice as to their rights and obligations. The Respondent states that the Charging Party "proposes a convoluted process." Respondent's Opposition at 10. According to the Respondent, the Charging Party's position would change the law from an objective to a subjective test, requiring parties to determine when and how an agency affirmatively indicates its intent to comply with an award.

      The Respondent contends that after the Authority denied its exceptions on August 17, 2002, the Charging Party had six months from that date to file a ULP charge if it did not believe the Respondent was implementing the award. The Respondent disputes the Charging Party's assertion that EEOC is not controlling.

      The Respondent asserts that there is no basis for the Authority to apply a clear and unequivocal notice standard. The Respondent asserts that the Authority rejected that standard in EEOC. Moreover, the Respondent asserts that the evidence in this case demonstrates that it "repeatedly indicated its refusal to comply with its obligation to implement the . . . award during the entire six month period[,]" and the Charging Party was well aware that it was not complying with the award. Opposition at 13.

      The Respondent contends that the Judge correctly determined that the Charging Party is not entitled to equitable tolling. The Respondent asserts that making inquiries about compliance is not enough. According to the Respondent, the Charging Party had a duty to file a charge when it failed to comply with the award. After the Respondent informed the Charging Party in writing that it was filing a petition and would not comply with the award, the Charging Party had 17 days to file a timely charge, and did nothing even though the Respondent's intent was clear. The Respondent asserts that such conduct does not demonstrate diligence. Also, the Respondent asserts that the Charging Party has not demonstrated that the Respondent's failure to perform any duty caused the Charging Party delay in filing the charge, nor was any concealment present.

2.      General Counsel's Exceptions

      The Respondent asserts that it was reasonable for the Judge to hold that the Charging Party knew or should have known before January 24, 2002, that the Respondent refused to take any action to implement the award.

      The Respondent disputes the GC's assertion that the Judge erred by finding the period for filing the ULP charge expired on February 17, 2002. The Respondent contends that the GC is disputing the Judge's application of clear Authority precedent that establishes the limitation period for filing a ULP charge that alleges noncompliance with an award commences on the date the award becomes final and binding. The Respondent asserts that the Authority should reject the GC's suggested approach because application of current Authority precedent "avoids factual disputes regarding when [an a]gency's noncompliance occurs." Opposition at 26.

      The Respondent also asserts that the GC's alternative argument--that the ULP did not occur until October 1, 2001, 45 days after the Authority's August 17 decision--is not persuasive because the obligation to comply with an award begins the moment it becomes final and binding.

      The Respondent contends that the GC's exception concerning a clear and unequivocal notice raises issues and arguments already considered and rejected by the Authority in earlier cases.

IV.     Analysis and Conclusions

A.    The Judge Did Not Err by Finding that the Respondent's
        Cross-Motion for Summary Judgment Timely Raised the
        Defense that the Charge Was Untimely

      The Judge did not err by allowing the Respondent to raise a defense based upon timeliness under § 7118(a)(4) of the Statute. The record shows that the GC filed a motion for summary judgment with a brief in [ v59 p287 ] support thereof which prompted the Respondent's opposition and cross-motion for summary judgment, wherein it timely raised a defense related to the timeliness of the charge. "[B]ecause the parties agreed that there [were] no factual issues in dispute," the Judge canceled a scheduled hearing and notified the parties that the matter would be decided on the pleadings. Judge's Decision at 2. Thereafter, the Charging Party and the GC filed oppositions to the Respondent's cross-motion for summary judgment.

      In United States Army Armament Research, Development and Engineering Ctr., Picatinny Arsenal, N.J., 52 FLRA 527, 532 (1996) (Picatinny Arsenal), the Authority stated that "[s]tatutes of limitation[s] are affirmative defenses and, as such, are waived unless raised in the pleadings or at trial." The Authority further found that § 7118(a)(4) of the Statute "is an affirmative defense." Id. at 534. In this case, because the Judge found that all issues could be resolved on the pleadings, there was no hearing. See § 2423.27 of the Authority's Regulations. As the Respondent timely raised the limitation set forth in § 7118(a)(4) in pleading its cross-motion for summary judgment, it was properly before the Judge. Accordingly, we find the Charging Party has failed to establish that the Judge erred by finding that the Respondent properly raised this defense.

B.    The Judge Did Not Err by Concluding that § 2429.22 of the
        Authority's Regulations Was Not Applicable

      Relying on § 2429.22, the Charging Party contends that as the Authority's decision was served on the parties by mail it had five additional days to file the charge. In applying § 7118(a)(4)(A) in the context of a case involving alleged noncompliance with an arbitrator's award, the Authority stated that an "agency's obligation to comply with an arbitrator's award begins when the award becomes final and binding; as a result, the 6-month period for filing a ULP charge alleging noncompliance with the arbitrator's award also commences at that time." 53 FLRA at 494. The Authority also noted that the express exception to the 6-month rule found at § 7118(a)(4)(B)--failure of an agency or union to perform a duty owed or concealment--essentially codifies case law developed under § 10(b) of the National Labor Relations Act (NLRA).

      There is nothing in the Authority's Regulations or the Statute that provides for an additional five days for the filing of a ULP charge and, as discussed below, there is no evidence that the Respondent failed to perform a duty owed to the Charging Party or concealed any matter that requires an exception to the 6-month rule. In that regard, there is nothing here, as required by § 2429.22, that is based on the Charging Party having some right or obligation tied to a prescribed period "after service of a notice or other paper upon such party[.]"

      Based on the above, we find that the Charging Party has not established that the Judge erred in finding that § 2429.22 was not applicable to the computation of the 6-month period for filing the ULP charge.

C.    The Judge Did Not Err by Applying EEOC to Find that the
        Limitation Period for Filing a ULP Charge Begins when the
        Award Becomes Final and Binding

      Referring to the language in § 7118(a)(4)(A) of the Statute, the GC and the Charging Party both assert that the holding in EEOC should not apply in this case because the time period for filing a ULP charge alleging noncompliance with an award should commence when the noncompliance occurs, not when the award was issued.

      In EEOC the Authority stated that an "award becomes final and binding after the period for filing exceptions expires and no exceptions have been filed or after timely filed exceptions have been denied by the Authority." EEOC, 53 FLRA at 492. The Authority also stated that:

In Luke AFB, the Authority determined that an agency's obligation to comply with an arbitrator's award begins when the award becomes final and binding (citing United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151, 153 (1984), aff'd, 775 F.2d 727 (6th Cir. 1985)). Luke AFB, 24 FLRA at 1025. The Authority further held that the 6-month period for filing a ULP charge alleging noncompliance with the arbitrator's award also commences at that time. 24 FLRA at 1025; accord Department of the Air Force v. FLRA, 775 F.2d 727, 732-33 (6th Cir. 1985) (Dep't of the AF).

EEOC, 53 FLRA at 493.

      Thus, the Authority's decisions in EEOC and Luke AFB, and the Sixth Circuit Court of Appeals decision in Dep't of the AF have previously established that the 6-month period for filing a ULP charge alleging noncompliance with an arbitrator's award commences on the date the award becomes final and binding pursuant to § 7122(b) of the Statute. The Authority has made it clear that the language of § 7122(b) requires an agency [ v59 p288 ] to take actions required by an arbitrator's award only after the award has become final and binding. Wyoming Air Nat'l Guard, Cheyenne, Wyo., 27 FLRA 759, 762 (1987).

      We reaffirm the Authority's findings in EEOC and Luke AFB and find as noted by the Authority in EEOC that "[b]oth the language of the Statute and established Authority precedent lead us to conclude that the limitations period for filing a ULP charge for failure to comply with an arbitrator's award commences on the date the award becomes final and binding. Such a rule puts all parties to the arbitration proceedings on notice as to their respective rights and obligations." 53 FLRA at 493. This rule effectuates the purpose of §§ 7118(a)(4) and 7122 of the Statute because through its application parties are able to assess their obligations to each other expeditiously and with reasonable certainty, which fosters "stability of collective bargaining relationships." EEOC, 53 FLRA at 495 ("[S]ection 7118(a)(4) of the Statute, like § 10(b) of the NLRA is designed to effectuate the dual policies of stability of collective bargaining relationships and avoidance of stale litigation.").

      In reaffirming EEOC, we reject the GC's assertion that EEOC is not applicable because the cases, including Dep't of the AF, relied on by the Authority to determine the limitation period for filing a ULP charge for noncompliance with an award did not concern the issue involved here. In Dep't of the AF, the agency argued that the union's ULP charge, alleging that the agency had failed to implement an award, was "time-barred under . . . § 7118(a)(4)(A)" of the Statute. 775 F.2d at 731. The Sixth Circuit Court of Appeals first determined that the ULP charge was not time-barred. The court stated that an agency is only required under § 7122 of the Statute "to `take the actions required by an arbitrator's final award[.]'" Id. at 732. Further noting that the Authority had held that a failure to implement an award pending resolution of timely filed exceptions is not a ULP, the court determined that "the limitation period for filing [a ULP] charge based on a refusal to implement an arbitration award begins to run on the date an award becomes final pursuant to § 7122(b)." Id. at 732-33.

      Further, as to the General Counsel's assertion that application of the rule established in EEOC should not mandate a finding of untimeliness because an award may require a series of actions before a determination is made on whether an agency is going to comply, similar arguments have been considered previously by the Authority. In EEOC, the Authority considered the effect of a noncomplying party's actions on a strict application of the limitation period in § 7118(a)(4) of the Statute. The Authority stated:

A party has the right to expect compliance with an arbitrator's award once it becomes final and binding. If a party believes that compliance is not being effectuated, it may take appropriate action. Options include filing a ULP or inquiring of the other party concerning the status of the arbitrator's award. If this latter course were chosen, a noncomplying party could not escape liability by assuring future compliance while letting the 6-month period run without effectuating compliance. Such conduct on the part of the noncomplying party would constitute concealment of its noncompliance and would be grounds for tolling the limitations period under section 7118(a)(4)(B).

53 FLRA at 496 (footnote omitted). See also, United States Dep't of Health and Human Serv., Health Care Financing Admin., 35 FLRA 491, 496-97 (1990) (Authority discussed party's obligation to comply with an award during pendency of a request for reconsideration and course of action taken by the Authority if later determined that agency did not commit a ULP). In this case, concealment is not present.

      Based on the above, we find that neither the General Counsel nor the Charging Party has presented arguments that warrant a departure from our precedent finding that the limitation period for filing a ULP charge over the failure to comply with an arbitrator's award commences on the date the award becomes final and binding. Accordingly, we find that the GC and the Charging Party have not established that the Judge erred in applying EEOC.

D.    The Judge Did Not Err by Finding that the Six Month
        Period for Filing a ULP Charge under § 7118(a)(4)(A) of the
        Statute Expired on February 17, 2002 and, therefore, the
        Charge Was Untimely               

      The GC argues that the time limitation for filing a charge "began to run when [Justice] filed its petition . . . on January 24, 2002 and [Respondent] clearly notified" the Charging Party "that it would not comply with the Authority's" decision, or in the alternative when the Respondent failed to perform the first requirement of the award. GC's Brief to Exceptions at 10. However, contrary to the GC's assertion, based on the holding in EEOC, the limitation period for filing the ULP charge for the Respondent's failure to comply with the award commenced on the date the award became final and [ v59 p289 ] binding, which was August 17, 2001--the date the Authority issued its decision on the exceptions. Therefore, the time limit for filing the charge expired on February 17, 2002.

      Moreover, even after the Respondent notified the Charging Party that it had filed a petition for review, the Charging Party had sufficient time to file a timely charge within the six months from the time the award became final and did not do so. Accordingly, we find the GC's argument unpersuasive.

a.     The Judge Did Not Err by Finding that the Time Period for Filing the ULP
        Charge Was Not Equitably Tolled

      "[E]quitable tolling is `appropriate only when the circumstances that cause a plaintiff to miss a filing deadline are out of his [or her] hands.'" EEOC, 53 FLRA at 498 (quoting Kelley v. NLRB, 79 F.3d 1238, 1248 (1st Cir. 1996)). Courts generally weigh five factors in assessing claims for equitable tolling. Those factors are: (1) lack of actual notice of filing requirements; (2) lack of constructive knowledge of filing requirements; (3) diligence in pursuing one's rights; (4) absence of prejudice to the defendant and (5) a plaintiff's reasonableness in remaining ignorant of the notice requirement. See EEOC, 53 FLRA at 498-99. The Charging Party challenges the Judge's finding that it did not exercise diligence in pursuing its rights.

      Although the Charging Party asserts that it exercised diligence, the facts as found by the Judge do not support that contention. The Judge found that neither the GC nor the Charging Party argued that the Respondent's filing of the petition in court tolled the running of the limitation period. Further, even the GC acknowledged that the time limit for filing the charge "began to run when [Justice] filed its petition . . . on January 24, 2002 and [Respondent] clearly notified" the Charging Party that it would not comply with the Authority's decision. GC Brief at 10. However, the Charging Party did not file the charge until February 21, 2002. The Charging Party's statement in its affidavit concerning the Respondent's January 31 letter advising the Charging Party of its noncompliance with the award also indicates that the Charging Party was aware that the Respondent "`did not intend to comply with the Vitaro award . . . '" before the limitation period ended. Judge's Decision at 12 (quoting the affidavit of a Union representative at 2-3). These facts demonstrate that had the Charging Party exercised diligence, it could have filed its charge in a timely manner before the limitation period elapsed.

      Thus, we reject the Charging Party's claim in this case that it lacked notice of the Respondent's intent not to comply with the award. The Respondent's actions, including the Respondent's letter of January 31 informing the Charging party that it had filed a petition with the court and that it was not going to comply with the award were not an indication of future compliance, but instead clearly indicated that the Respondent had not complied with the award and did not intend to comply with it in the future. The Charging Party had the right to expect compliance with an award once it became final and binding. The Respondent did not conceal its noncompliance but informed the Charging Party of it. Therefore, the Charging Party had notice and could have timely filed the charge before the limitation period expired. Consequently, we find that the Charging Party has not established that the Judge erred by finding that the limitation period was not equitably tolled.

      Accordingly, neither the GC nor the Charging Party has established that the Judge erred in finding that the charge was untimely because the six month period for filing a ULP charge under § 7118(a)(4) of the Statute expired on February 17, 2002, and that the late filing was not the result of failure or concealment on the part of the Respondent.

b.     The Judge Did Not Err by Rejecting the Clear and Unequivocal Notice
        Standard

      In EEOC, the Authority set forth the standard by which to measure the timeliness of the ULP charge in this case. The Authority concluded that the 6-month period for filing a ULP charge alleging noncompliance with an award commences at the time the award becomes final and binding. See EEOC, 53 FLRA at 493 (citing Luke AFB and Wright-Patterson). As previously found, the Charging Party has not demonstrated a reason to overrule or modify EEOC. Accordingly, we conclude that the Judge did not err by rejecting the clear and unequivocal notice standard and, therefore, we deny this exception.

V.     Order

      The complaint is dismissed. [ v59 p290 ]


APPENDIX

Section 7118(a)(4) of the Statute provides:

(A) Except as provided in subparagraph (B) of this paragraph, no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority.
(B) If the General Counsel determines that the person filing any charge was prevented from filing the charge during the 6-month period referred to in subparagraph (A) of this paragraph by reason of--
      (i) any failure of the agency or labor organization against which the charge is made to perform a duty owed to the person, or
      (ii) any concealment which prevented discovery of the alleged unfair labor practice during the 6-month period, the General Counsel may issue a complaint based on the charge if the charge was filed during the 6- month period beginning on the day of the discovery by the person of the alleged unfair labor practice.


File 1: Authority's Decision in 59 FLRA No. 44
File 2: ALJ's Decision


Footnote # 1 for 59 FLRA No. 44 - Authority's Decision

   Member Armendariz did not participate in either 57 FLRA 444 or 57 FLRA 592.


Footnote # 2 for 59 FLRA No. 44 - Authority's Decision

   Sections 2425.4 and 2429.17 of the Authority's Regulations provide, in pertinent part, as follows:

§ 2425.4 Authority decision.
The Authority shall issue its decision and order taking such action and making such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations.
§ 2429.17 Reconsideration
The filing and pendency of a motion under this provision shall not operate to stay the effectiveness of the action of the Authority, unless so ordered by the Authority. . . . .

Footnote # 3 for 59 FLRA No. 44 - Authority's Decision

   The January 31 letter to the Union's Representative stated as follows:

This is in response to your letter dated January 24, 2002, wherein you asked whether the Agency intends to comply with Arbitrator Vitaro's award given the [decision in 57 FLRA No. 81]. Enclosed please find a copy of the Petition for Review of the FLRA decision filed by the Department of Justice. Based on the Petition, the Agency's position is that it does not have to take any action to implement the Arbitrator's award at this time.

GC's Motion for Summary Judgment, Exh. 2.


Footnote # 4 for 59 FLRA No. 44 - Authority's Decision

   The Charging Party contends that the Judge's finding that no issue of fact exists is incorrect. According to the Charging Party, the Judge made a "material factual finding that [it] had failed to exercise diligence." Charging Party's Exceptions at 21 n.6. According to the Charging Party, there is evidence, as discussed abov