[ v15 p686 ]
15:0686(137)CA
The decision of the Authority follows:
15 FLRA No. 137
DEPARTMENT OF DEFENSE
DEPARTMENT OF THE NAVY
UNITED STATES MARINE CORPS
UNITED STATES MARINE CORPS AIR STATION
CHERRY POINT, NORTH CAROLINA
Respondent
and
INTERNATIONAL ASSOCIATION OF
MACHINISTS & AEROSPACE WORKERS,
AFL-CIO, DISTRICT 110
Charging Party
Case No. 4-CA-502
DECISION AND ORDER
The Administrative Law Judge issued his 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. Thereafter, the Respondent filed exceptions
to the Judge's Decision.
Pursuant to section 2413.29 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, as modified below.
The Judge found that the Respondent's noncompliance with the
arbitrator's award to which no exceptions were filed constituted a
violation of section 7116(a)(1), (5) and (8) of the Statute. In so
finding, he concluded, however, that a party may not be required to
perform an unlawful act in order to comply with an arbitrator's award.
Upon reviewing the merits of the Respondent's claim, the Judge concluded
that compliance with the arbitrator's award would not require an
unlawful act.
While agreeing with the Judge's conclusion that Respondent's failure
to comply with the Arbitrator's award was violative of the Statute, the
Authority specifically rejects the Judge's determination that, even
though no timely exceptions to the arbitrator's award had been filed
with the Authority, he was nevertheless required to consider the merits
of Respondent's assertion as an affirmative defense to the unfair labor
practice allegation that compliance with the arbitrator's award would
compel the performance of an unlawful act. As noted by the Authority in
United States Air Force, Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio, 15 FLRA No. 27 (1984), "(t)o allow a party which
has not filed exceptions to an award to defend its failure to implement
that award in a subsequent unfair labor practice proceeding . . . would
circumvent the procedures provided in section 7122(a) and frustrate
Congressional intent with respect to the finality of arbitration
awards." Given the Congressionally mandated exclusivity of section
7122(a) /1/ as a mechanism for questioning arbitrators' awards, it would
be inappropriate for the Authority to entertain in subsequent unfair
labor practice proceedings matters which more appropriately should be
pursued in accordance with section 7122(a) of the Statute. In the
Authority's view, any contention that an arbitrator's award is deficient
because it is contrary to any law, rule, or regulation must be made by
invoking the procedures established by Congress in section 7122(a) of
the Statute. If a party fails to file exceptions to an arbitrator's
award pursuant to section 7122(a) within the 30 day period established
therein, the award, pursuant to section 7122(b) of the Statute, becomes
"final and binding" and "(a)n agency shall take the actions required by
an arbitrator's award." /2/ In view of the language of the Statute and
relevant legislative history concerning the finality of arbitration
awards pursuant to section 7122(b) of the Statute, as more fully
discussed in Wright-Patterson, supra, the Authority is constrained to
conclude that any failure to comply with a validly obtained arbitrator's
award to which no exceptions have been timely filed constitutes a
failure to comply with the requirements of section 7122 of the Statute
in violation of section 7116(a)(1) and (8) of the Statute. Any other
conclusion would render section 7122(b) meaningless, as a party could
fail to file exceptions to an arbitrator's award pursuant to section
7122(a), take no action, and then present its argument in the course of
defending against the unfair labor practice allegation. To permit such
a protracted procedure would be inconsistent with the policy that the
arbitration process provides both an expeditious and a final resolution
of grievances. Therefore, the Authority concludes that the Respondent
herein violated section 7116(a)(1) and (8) of the Statute by virtue of
its failure to comply with the arbitrator's award. /3/
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 Department of Defense, Department of the Navy,
United States Marine Corps Air Station, Cherry Point, North Carolina,
shall:
1. Cease and desist from:
(a) Failing and refusing to fully implement Arbitrator T. Warren
Butler's arbitration award rendered on October 11, 1979 and Arbitrator
Butler's clarification of his award rendered on May 6, 1980.
(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
purposes and policies of the Statute:
(a) Incorporate the terms of the arbitration award which became final
and binding on November 10, 1979 and the clarification which became
final and binding on June 5, 1980 into the collective bargaining
agreement between United States Marine Corps Air Station, Cherry Point,
North Carolina and the International Association of Machinists and
Aerospace Workers, AFL-CIO, District 110, subject to any agreement which
may have been reached by the parties concerning any matter contained in
the award following its issuance, and until modified in a manner
consistent with the 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 Commander, United States Marine
Corps Air Station, Cherry Point, North Carolina, or his 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 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 IV, 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., August 28, 1984
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 and refuse to fully implement Arbitrator T. Warren
Butler's arbitration award rendered on October 11, 1979 and Arbitrator
Butler's clarification of his award rendered on May 6, 1980.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL incorporate the terms of the arbitration award which became
final and binding on November 10, 1979 and the clarification which
became final and binding on June 5, 1980 into the collective bargaining
agreement between United States Marine Corps Air Station, Cherry Point,
North Carolina and the International Association of Machinists and
Aerospace Workers, AFL-CIO, District 110, subject to any agreement which
may have been reached by the parties concerning any matter contained in
the award following its issuance, and until modified in a manner
consistent with the Statute.
(Agency or Activity)
By: (Signature)
Dated: . . .
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 IV, whose address
is: 1776 Peachtree Street, NW, Suite 501, North Wing, Atlanta, Georgia,
30309 and whose telephone number is: (404) 881-2324.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Delores T. Griffin
For Respondent
Terry A. Wethington
For Charging Party
Mathilde L. Genovese
For General Counsel of FLRA
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding arising under the Federal Service
Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et
seq., (hereinafter called the Statute).
On July 7, 1980 a charge was filed by International Association of
Machinists & Aerospace Workers, AFL-CIO, (IAM) District 110 (hereinafter
called IAM District 110, the Union and/or Charging Party) against
Department of Defense, Department of the Navy, United States Marine
Corps, United States Marine Corps Air Station, Cherry Point, North
Carolina (hereinafter called Marine Corps Air Station and/or Respondent)
alleging that Respondent violated the Statute with respect to its
failure to comply with an arbitrator's award. The charge was amended on
July 15, 1980 and again on April 12, 1981.
On April 22, 1981 the General Counsel of the Federal Labor Relations
Authority (FLRA), by the Director of Region 4 issued a Complaint and
Notice of Hearing alleging that Respondent had violated Section
7116(a)(1), (5) and (8) of the Statute by refusing to implement an
arbitration award. Respondent filed an answer denying the allegations
of the complaint.
A hearing in this matter was conducted before the undersigned in
Cherry Point, North Carolina. The General Counsel of the FLRA,
Respondent and IAM District 110 were represented and afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence and to argue orally. Post hearing briefs were filed
and have been fully considered. /4/
Based upon the entire record in this matter and my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact /5/
At all times material herein Respondent has IAM Lodge No. 2296 /6/
has been the exclusive collective bargaining representative for a unit
composed of all of Respondent's ungraded employees, including
warehousemen.
In early 1978, Respondent initiated a rewarehousing program in its
Supply Department, for the purpose of refurbishing warehouse bins and
reassigning of stock. Respondent established a special team for the
rewarehousing work which initially consisted of maintenancemen, WG-8 and
WG-9. The maintenancemen were assigned from Lee White's section; White
was the Rewarehouseing/Storage Support Branch Supervisor. During 1978,
various warehousemen, WG 3, 4, and 5 were assigned to the rewarehousing
team; the warehouseman worked side by side with the maintenancemen.
One of the warehousemen so assigned was temporarily promoted on two
occasions to a WG 8 maintenanceman position. After several of the
warehousemen became proficient in the rewarehousing work, /7/ White
removed his maintenancemen from the project; the warehousemen became
responsible for the completion of the rewarehousing project. After
several complaints by warehousemen regarding the requirement that they
perform the rewarehousing work that had previously been performed by the
maintenancemen, Ira J. Jones, Material Group Director, on or about
November 15, 1978, rewrote the job descriptions of the warehousemen
(WG-5) incorporating the duties previously performed by the
maintenancemen.
On or about December 1, 1978, Donald B. Miller, a Classification
Specialist, at the request of Vernon Stewart, the Principal Classifier,
audited the rewritten job description. Miller found that the job
description was properly classified as a Warehouseman, WG-5.
Benjamin Gaskill, at that time one of the warehousemen assigned to
the rewarehousing team, filed a written grievance, pursuant to the
collective bargaining agreement, alleging that warehousemen were
performing the higher graded work of maintenancemen without additional
pay or a change in job title. Gaskill first presented his grievance to
Classifier Stewart on November 1, 1978 and after receiving an
unsatisfactory reply on December 11, 1978, Gaskill reduced the grievance
to writing. The parties were unable to resolve the grievance and
proceeded to arbitration. The parties presented their positions to
Arbitrator T. Warren Butler on June 27, 1979. Jones and Miller
testified at the Arbitration hearing on behalf of Respondent.
Butler issued an Arbitration Award on October 11, 1979. The Award
summarized the positions of the parties as follows:
The union contends that the employer violated the agreement in
several sections. . . . The thrust of the union contention is
that the employer effectively required higher level work from
warehousemen than usual warehousemen work and thereby got higher
level work accomplished without providing higher pay and better
benefits.
The employer contends that its change in the job description of
warehousemen was within "management rights" and that employees who
deemed themselves abused by a change in the job description have
appeal rights to determine if the job description is proper.
The employer also contends that the disassembling and
assembling of racks are consistent with general "warehouseman"
work and such duties do not qualify an employee to be rated as
"maintenance mechanic."
The arbitrator found that the warehousemen, WG 4, 5, and 6 who were
assigned to the rewarehousing team, worked side by side with maintenance
mechanics performing identical work. The arbitrator reviewed the
testimony of three warehousemen assigned to the team. These
warehousemen testified at the Arbitration Proceeding that, historically,
the duties of warehousemen were the receiving, storing and issuing of
material. The warehousemen stated that construction of bins, which
required the use of wrenches, electric drills, crowbars, pallet jacks,
mallet hammers, forklifts, tapes, chalk lines, straightening of bent and
twisted metal, crimping metal and working from blueprints, had always
been mechanic work and not warehouseman work. The arbitrator
specifically concluded that the duties the warehousemen were required to
perform were neither traditional nor historical duties of warehousemen
and that the rewarehousing work was traditionally performed by
maintenance mechanics. The arbitrator therefore found that Respondent
violated Article XVI, Section 7, /8/ and Article XVIII, Sections 1 and 6
/9/ of the contract.
The arbitrator rejected Respondent's argument that it was a
management right to unilaterally change the warehousemen's job
descriptions and further rejected Respondent's contention that
warehousemen, who felt that they were adversely affected by the change
in their job descriptions had to exercise their appeal rights, by noting
that the contract provided an avenue of redress through the grievance
procedure and arbitration. The arbitrator addressed Respondent's
management rights argument and concluded that management was required to
discuss a proposed modification of a job description with the affected
employees and the Union. The arbitrator held that Respondent did not
meet this requirement. In this regard, the arbitrator stated,
"Hopefully, such a discussion would lead to an amicable resolution of
the problem. Short of this, the Union is left to the other contract
provisions quoted herein in order to be sure that management follows the
requirements of assigning work to properly rated employees and paying
employees on the basis of the highest level of duties assigned." The
arbitrator issued the following award:
The grievance is sustained in part and denied in part.
Management violated the agreement in failing to discuss with the
union the proposed change in the job description for warehousemen.
Warehousemen may not be required to do the rewarehousing work at
warehouseman pay unless the job description is changed properly,
i.e., after a good faith discussion with the union. The evidence
is not sufficient to decide, if, or to what extent, the company
violated the assignment portions of the agreement or the
compensation portions of the agreement. No backpay is awarded.
The company is required to record the "mechanical type" experience
of the appropriate warehousemen in their personnel files.
Although the arbitrator awarded no backpay, he specifically stated in
his decision that greater skills call for higher pay, but from the
evidence presented, he could not determine to what extent the pay
provisions of the contract were violated. Therefore, the arbitrator had
insufficient evidence on which to base such an award.
Following receipt of the award, Terry A. Wethington, Business
Representative for IAM District 110, was notified by warehouseman Terry
Realini, who was assigned to the rewarehousing team, that warehousemen
were still being assigned to the higher level duties that the arbitrator
found to be maintenanceman duties. On or about November 15, 1979,
Wethington wrote a letter to Respondent advising that the 30 day time
period to appeal the Arbitrator's Award had expired. Wethington also
wrote that the continued assignment of the warehousemen to the higher
level duties without compensating them and Respondent's failure to
comply with the Arbitrator's Award was a serious matter. Wethington
suggested that the employees be retroactively, temporarily promoted to
Maintenance Worker, WG-8, until the issue was settled as directed by the
Arbitrator. When Wethington had not received a reply to this letter by
the end of November, 1979, he filed an unfair labor practice charge.
Thereafter, on or about December 7, 1979, Respondent replied by letter
to the Union's November 15, 1979 letter and advised that it was ready to
meet to discuss the proposed changes in the warehousemen job description
and that such a discussion would fulfill the arbitration award.
Respondent took the position that any temporary promotions would be
inappropriate "since no determination has been made that the employee's
duties should be classified at a higher level. There is no provision in
the award for this nor would it be proper until a determination is made
as to the proper classification of the job. If there is a disagreement
as to the classification of the job, the employees may appeal such
classification through the appropriate appeals procedure." The Union
immediately replied to Respondent's letter and adhered to their stated
position that the Arbitrator's Award barred Respondent from requiring
the warehousemen to do rewarehousing work at warehousemen pay until the
job description was properly changed. The Union advised Respondent that
the assignment of the warehousemen to the higher level duties, without
higher level pay, violated the contract.
From December, 1979 through March, 1980, Respondent did not discuss
with the Union what level of pay the warehousemen assigned to the
rewarehouseman team should receive because Respondent insisted that the
warehousemen were not performing higher level duties and were not
entitled to any higher pay.
In order to settle the unfair labor practice charge filed by the
Union in November, 1979, the parties agreed, on or about March 12, 1980,
to request from the arbitrator a clarification of his October 11, 1979
award. Respondent and the Union each submitted their interpretation of
the award to the arbitrator. Respondent contended that there was
nothing in the award that required the promotion of the warehousemen,
even on a temporary basis, and that before the warehousemen could
legally be paid at a higher rate of pay, the warehousemen position must
first be classified at a higher level. Respondent took the position
that they were required only to discuss the proposed job description of
the warehousemen with the Union. Respondent noted in its position
letter that the Union was not satisfied with discussion and that Union
felt the jobs deserved more pay, but that the Union "continued to avoid
the procedure for making the determination. The classification question
. . . which cannot be a matter for the grievance procedure, must be
answered before the employees could justifiably be paid at a higher rate
of pay. It does not appear to the employer that the arbitrator intended
the award to dictate that the employees be paid at the higher rate of
pay." The Union advised the arbitrator that the parties discussed and
agreed to a job description which had to be graded by Respondent's Wage
and Classification Section to determine the proper hourly wage. The
Union noted that the Arbitration Award had issued on October 11, 1979,
that the warehousemen continued to be assigned to work found by the
arbitrator to be in violation of several articles of the contract, and
that no one knew how long it would take to obtain a final decision
regarding the pay grade of the warehousemen position. The Union
requested that the arbitrator clarify whether, due to the long delay in
implementing the award, the warehousemen performing maintenance duties
were entitled to retroactive pay from the date of the award, if any was
found to be merited by the classification process.
On or about May 6, 1980, the arbitrator issued a clarification of his
award. Butler declared that he had disagreed with Respondent's
position, that the rewarehousing work was properly assigned to
warehousemen. He found that the implementation of the award revolved
around Articles XVI and XVIII of the contract, and concluded that the
warehousemen were entitled to the higher pay of maintenance mechanics:
The award made it quite clear that the employer violated those
portions of Article XVI and Article XVIII when the employer
required warehousemen to do the rewarehousing work which involved
mechanic skills over an extended period of time. Therefore the
warehousemen were entitled to maintenance mechanic pay during
those periods of time the warehousemen were performing
rewarehousing work except for those periods of time specified in
the agreement. Article XVI, Section 7 allows for a thirty day
assignment of an employee above the level of their rating, but
further requires a temporary promotion to the higher level
position where it can reasonably be determined in advance that an
employee in the unit will be required to perform a majority of
their duties above the level of their rating for periods in excess
of thirty days. The arbitrator found that the rewarehousing work
was anticipated to last five years and, by implication, found that
the warehousemen should have been temporarily promoted if a
majority of their duties were to be the rewarehousing work. The
award further provided that the employer violated Section 6 of
Article XVIII because the employer did not assign the
rewarehousing work within the proper rating. This same section
requires the employer to compensate employees on the basis of the
highest level of duties assigned as a substantial portion of the
job assignment. Therefore, the warehousemen who were assigned the
rewarehousing work as a substantial portion of their job
assignment should have been compensated as mechanics.
The clarification specifically addressed, in detail, the issue of
backpay. The Arbitrator stated that the only reason mechanic pay was
not awarded was because there was insufficient evidence to determine
which employees were performing the higher graded work, for what periods
of time they were engaged in the higher graded work, and what amount of
mechanic pay each individual warehousemen deserved. "Although the
arbitrator felt that the employer violated the assignment portions of
the agreement and that some backpay was justified, the arbitrator is
limited by and bound by the evidence presented at the hearing."
The Arbitrator again rejected Respondent's position that the affected
warehousemen had appeal rights, under Article XVIII, Section 2 /10/ of
the contract and that until these were rights exercised by the
warehousemen, no higher level pay could be authorized. The arbitrator
stated that Respondent had misassigned the warehousemen and that the
warehousemen were entitled to backpay because they were performing work
normally assigned to maintenance mechanics.
The employer acts at its peril when it misassigns its
employees. Therefore, any warehouseman who is required to do
rewarehousing work after the date of this original award as
defined by and limited by the provisions in Section 6 of Article
XVIII, is entitled to mechanic pay until such time as the
warehousemen job description includes all of the duties required
of warehousemen in whatever jobs to which they are assigned.
Until a new job description meeting this definition is properly
implemented according to all the terms of the agreement including
appeal and grading, the warehousemen are being misassigned and are
entitled to compensation "on the basis of the highest level of
duties assigned as a substantial portion of the job assignment."
During the pendency of the procedures for changing the job
description, the parties are bound by the contract provisions
discussed herein. If the employer does not wish to pay mechanic
wages to the warehousemen, it is incumbent upon the employer to
have all mechanic duties performed by employees who are graded
mechanics.
The arbitrator recommended that the Union keep detailed records to
document which employees were misassigned and to what extent a
substantial portion of the warehousemen's work was above the level of
their assignment if Respondent continued to assign warehousemen to
mechanic duties.
Following receipt of the clarification, the Union discussed the award
with Willis R. Stevens, Supervisory Labor Relations Specialist. /11/
Stevens told the Union that the clarification imposed no obligation for
retroactive pay or any higher level of pay. Stevens advised the IAM
District 110 that Wage and Classification determined that the highest
level that Respondent could legally or by regulation pay the
warehousemen was WG-5.
On or about June 24, 1980 representatives of IAM District 110 met
with Respondent to again discuss the clarification. Wethington
expressed the Union's position that the warehousemen were still
performing higher graded work and that the arbitrator rules that they
should be retroactively paid at a higher level. Stevens stated that
neither the arbitrator's award nor the clarification required Respondent
to pay the warehousemen at a higher rate of pay.
In July, 1980, Wethington met with Respondent's representatives
Jones, White, Gaskill and Commander Treecy to discuss a proposed job
description for Maintenance Worker, WG-8. Wethington understood from
Jones /12/ that this job description, which described the duties that
the rewarehousing team was performing, would be submitted to Wage and
Classification for grading.
At no time have any of the warehousemen assigned to the rewarehousing
team received backpay for performing the higher graded work. The Union
began compiling records reflecting which warehousemen on the
rewarehousing team performed the higher level duties and for what period
of time they performed said duties. The Union began collecting this
data following receipt of the arbitrator's award in October 1979.
Respondent did not appeal the arbitrator's award or clarified award
to the Authority pursuant to Section 7122(b).
Discussion and Conclusions
This case presents the question whether Respondent violated Sections
7116(a)(1), (5) and (8) of the Statute by failing to comply with the
arbitrator's award. In United States Air Force, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, OALJ 81-123 (1981),
(hereinafter referred to as the Wright-Patterson Case) Judge Heifetz
discussed the reviewability of an arbitrator's award. In agreement with
Judge Heifetz and for the reasons he set forth in the Wright-Patterson
Case, supra, I conclude that, the exclusive method for obtaining review
of an arbitrator's award is pursuant to Section 7122(b) of the Statute
and review cannot be obtained through an unfair labor practice
proceeding. Accordingly, because Respondent failed to utilize Section
7122(b) of the Statute, the arbitrator's award is not reviewable in this
proceeding and I conclude that, absent a finding that compliance with
arbitrator's award would be unlawful, failure to comply with such award
constitutes a violation of Section 7116(a)(1), (5) and (8) of the
Statute.
Arbitrator Butler in his original award and in the clarification made
it quite clear that Respondent had not complied with the collective
bargaining agreement with respect to the assignment of warehousemen to
the rewarehousing work. Accordingly Arbitrator Butler stated "any
warehouseman . . . required to do rewarehousing work after the date of
this original award . . . is entitled to mechanic pay until such time as
the warehousemen job description includes all the duties required of
warehousemen . . . " Arbitrator Butler stated further, "until a new job
description meeting this definition is properly implemented according to
all the terms of the agreement . . . the warehousemen are being
misassigned and are entitled to compensation 'on the basis of the
highest level of duties assigned as a substantial portion of the job
assignment'."
Arbitrator Butler's decision, as clarified, is clear and unambiguous
and, I conclude that Respondent's failure to pay the warehouseman
mechanic's rates for the period the warehousemen performed rewarehouse
work from the date of the Arbitrator's original decision, until such
time as the warehousemen job description is changed, in accordance with
the provisions of the collective bargaining agreement, to include the
rewarehousing work, constitutes a failure to comply with arbitrator's
award and clarification.
The FLRA held in U.S. Department of Labor, 5 FLRA No. 11 (1981) that
whether an employee should be compensated, pursuant to an agreement, at
a higher rate for the temporary period he performed work at a higher
grade is arbitrable and that such an award would not be unlawful. See
also Veterans Administration Hospital, 4 FLRA No. 7 (1980).
Accordingly, it is concluded that Arbitrator Butler's award and
clarification is lawful and that Respondent's failure to comply with his
award and clarification constituted a violation of Sections 7116(a)(1),
(5) and (8) of the Statute. See the Wright-Patterson Case, supra.
Having found and concluded that Respondent violated Section
7116(a)(1), (5) and (8) of the Statute, I recommend that the Authority
issue the following:
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 Department of Defense, Department of the Navy,
United States Marine Corps Air Station, Cherry Point, North Carolina
shall:
1. Cease and desist from:
(a) Failing and refusing to comply with the arbitration award
of Arbitrator T. Warren Butler, issued on October 11, 1979 and
Arbitrator Butler's clarification issued on May 6, 1980 by failing
and refusing to pay warehousemen for the time they performed
rewarehousing work at the Mechanics WG-8 rate, in accordance with
Section 6 of Article XVIII of the collective bargaining agreement,
during the period from October 11, 1979 until such time as the
warehouseman job description is revised in accordance with the
terms of the collective bargaining agreement between International
Association of Machinists and Aerospace Workers, AFL-CIO, Lodge
2296 and Marine Corps Air Station, Cherry Point, North Carolina,
to include the rewarehousing work.
(b) In any like to related manner, interfering with restraining
or coercing employees in the exercise of 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) Comply with the arbitration award of Arbitrator T. Warren
Butler issued on October 11, 1979 and Arbitrator Butler's
clarification issued on May 6, 1980 by paying warehousemen at the
Mechanic WG-8 rate, in accordance with Section 6 of Article XVIII
of the collective bargaining agreement, for the time they
performed rewarehousing work during the period from October 11,
1979 until such time as the warehousemen job description is
revised, in accordance with the terms of the collective bargaining
agreement between International Association of Machinists and
Aerospace Workers, AFL-CIO, Lodge 2296 and Marine Corps Air
Station, Cherry Point, North Carolina, to include the
rewarehousing work.
(b) Post at its facilities 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 an
authorized representative and shall be posted and maintained for
60 consecutive days thereafter in conspicuous places, including
all bulletin boards and other places where notices are customarily
posted. Reasonable steps shall be taken to insure that the
notices are not altered, defaced or covered by other material.
(c) Notify the Federal Labor Relations Authority in writing
within 30 days from the date of this Order as to what steps have
been taken to comply with the Order.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: April 14, 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 fail and refuse to comply with the arbitration award of
Arbitrator T. Warren Butler issued on October 11, 1979 and Arbitrator
Butler's clarification issued on May 6, 1980 by failing and refusing to
pay warehousemen for the time they performed rewarehousing work at the
Mechanics WG-8 rate, in accordance with Section 6 of Article XVIII of
the collective bargaining agreement, during the period from October 11,
1979 until such time as the warehouseman job description is revised in
accordance with the terms of the collective bargaining agreement between
International Association of Machinists and Aerospace Workers, AFL-CIO,
Lodge 2296 and Marine Corps Air Station, Cherry Point, North Carolina,
to include the rewarehousing work.
WE WILL NOT in any like or related manner, interfere with restrain or
coerce employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL comply with the arbitration award of Arbitrator T. Warren
Butler issued on October 11, 1979 and Arbitrator Butler's clarification
issued on May 6, 1980 by paying warehousemen at the Mechanic WG-8 rate,
in accordance with Section 6 of Article XVIII of the collective
bargaining agreement, for the time they performed rewarehousing work
during the period from October 11, 1979 until such time as the
warehousemen job description is revised, in accordance with the terms of
the collective bargaining agreement between International Association of
Machinists and Aerospace Workers, AFL-CIO, Lodge 2296 and Marine Corps
Air Station, Cherry Point, North Carolina, to include the rewarehousing
work.
(Agency or Activity)
By: (Signature)
Dated: . . .
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 Four, whose
address is 1776 Peachtree Street, NW, Suite 501 - North Wing, Atlanta,
Georgia 30309 and whose telephone number is (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ Section 7122(a) of the Statute provides in pertinent part as
follows:
Sec. 7122. Exceptions to arbitral awards
(a) Either party to arbitration under this chapter may file
with the Authority an exception to any arbitrator's award pursuant
to the arbitration(.)
/2/ Section 7122(b) provides as follows:
(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. The award may include the payment of backpay (as provided
in section 5596 of this title).
/3/ In view of this conclusion, the Authority finds it unnecessary to
pass upon the Judge's further finding that the Respondent also violated
section 7116(a)(5) of the Statute.
/4/ Respondent also filed a Reply Brief which has been considered.
/5/ The facts were set forth accurately in the Brief of the General
Counsel of the FLRA.
/6/ IAM Lodge No. 2296 is affiliated with IAM District 110.
/7/ The rewarehousing work consisted of tearing down existing bins
and constructing new bins which were tailor made for the items to be
stored.
/8/ Article XVI, Section 7 provides:
It is agreed that employees assigned duties above the level of
their rating for periods in excess of thirty (30) calendar days or
where it can reasonably be determined in advance that an employee
in the unit will be required to perform a majority of their duties
above the level of their rating for periods in excess of thirty
(30) calendar days, such employees, if qualified, shall be
temporarily promoted to the higher level position. Only qualified
employees will be assigned in such cases.
/9/ Article XVIII, Sections 1 and 6 provide:
Section 1.
. . . In any case where action is proposed to modify the job
description of any position in the unit to the extent that either
the rating, title, pay level, or qualification requirements for
the rating will be affected, it is agreed that the proposed change
will be discussed with the employee or employees concerned and
their Union Steward and/or Chief Steward prior to the effective
date of the change.
Section 6.
The Employer agrees to assign work within the proper rating
jurisdiction of respective employees within the unit, as defined
by established Navy rating guides. Exceptions to the above policy
will be made under the following circumstances:
(a) Lack of workload for employees in their respective rating
and employees who do not want to take annual leave.
(b) To meet a short term work situation of the Employer where
it is impossible to assign such work to employees in the proper
rating.
(c) To occasionally perform miscellaneous duties incidental to
the job requirement not covered in the job description.
The Employer further agrees to compensate employees on the
basis of the highest level of duties assigned as a substantial
portion of the job assignment for a representative period of time,
unless prohibited by a directive of higher authority and shall
refrain from distributing higher level duties solely to avoid
compensating unit employees.
/10/ Article XVIII, Section 2 states:
Any employee in the unit who feels that his job is improperly
rated, shall have the right to request through his supervisor,
that his job rating be reviewed. The employee may be accompanied
by his Steward and/or Chief Steward in presenting his request and
discussing it with the supervisor and personnel of the Civilian
Personnel Department. In the event the parties are unable to
agree, the Employer agrees to conduct an examination of the
employee's work assignments to determine whether or not the rating
is proper. As a part of this examination, the Employer will talk
personally with the employee, his supervisor, and the Steward
and/or Chief Steward. Such discussion will include how the rates
were established, the type of work performed, the skill required
in relation to other rates in the same work series, and other
pertinent factors. The Employer agrees to consider fully any
information which the employee or his Union Representative may
wish to present, and upon request to discuss his findings with the
employee, and his Union Representative. If satisfactory
resolution of the employee's complaint is not reached the Employer
will furnish the affected employee with a copy of his findings
including the basis for the decision in writing which shall also
include his appeal rights.
/11/ Stevens is the Head of Respondent's Labor Employee Relations
Branch.
/12/ Jones does not recall if he submitted it for grading.