[ v22 p647 ]
22:0647(71)CA
The decision of the Authority follows:
22 FLRA No. 71
HEADQUARTERS, DEPARTMENT OF THE ARMY
WASHINGTON, D.C. AND U.S. ARMY TRAINING
CENTER ENGINEER AND FORT LEONARD WOOD
FORT LEONARD WOOD, MISSOURI
Respondents
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, R14-32, SEIU/AFL-CIO
Charging Party
Case No. 7-CA-40084
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based on a stipulation of facts by the parties who have
agreed that no material issue of fact exists. The General Counsel
alleges in its complaint that the Respondents committed unfair labor
practices in violation of section 7116(a)(1), (5), and (8) of the
Federal Service Labor-Management Relations Statute (the Statute) /1/ by
failing and refusing to comply with an interim arbitration award and a
supplement to that award, by refusing to consult or negotiate in good
faith with the Union, and by interfering with its employees' exercise of
their rights under the Statute. Although both the General Counsel and
the Charging Party have submitted briefs, only the General Counsel's
brief was timely filed and will be considered. The Respondents did not
submit a brief.
II. Background
The National Association of Government Employees, R14-32,
SEIU/AFL-CIO (NAGE or Union), is the exclusive representative of certain
of the Respondents' employees. At all times material to this matter,
NAGE and Respondent Fort Leonard Wood have been parties to a collective
bargaining agreement providing for binding arbitration as part of the
grievance procedure.
On January 30, 1980, Respondent Fort Leonard Wood removed a unit
employee for alleged misconduct. The dispute eventually reached
arbitration under the parties' collective bargaining agreement. The
Arbitrator issued an interim award on May 20, 1983, ordering the Union
and the employee to elect within 35 days whether to obtain a psychiatric
evaluation of the employee. The Arbitrator further ordered that, in any
event, a written report should be submitted to him within 90 days,
setting forth the arrangements for the employee's evaluation or the
reasons for the parties' failure to reach an agreement. The Arbitrator
retained jurisdiction to render a final award.
Respondent Fort Leonard Wood filed an "Objection to Interim Award,
dated 20 May, 1983, and Request for Reconsideration" on July 1, 1983.
The objection concerned the substance of the interim award. The
Arbitrator then issued a supplement to the interim award on August 12,
1983. The supplement essentially affirmed the initial award and
required that the written report mandated by the initial award be
submitted not later than October 11, 1983.
Respondent Fort Leonard Wood notified NAGE and the Arbitrator on
September 20, 1983, that it had been instructed by Respondent
Headquarters not to recognize the authority of an arbitrator to issue an
interim award, and to decline to participate further in the procedures
specified in the interim award. NAGE attempted to comply with the
procedures on October 27, 1983, but the Respondent has refused. No
final award has been issued.
III. Position of the General Counsel
First, the General Counsel contends that the interim award and its
supplement constitute final interlocutory awards because they were not
appealed by Respondent Fort Leonard Wood or Respondent Headquarters, and
that the Respondents' failure and refusal to comply with those awards,
as required under section 7121, constitutes a violation of section
7116(a)(8) by both. The General Counsel concedes that the Authority
generally will not consider such interlocutory matters, but it urges the
Authority to do so here because there are no other means of resolving
the issue of the Respondents' duty to comply with the interim awards.
The General Counsel also asserts in its complaint that the
instruction by Respondent Headquarters to Respondent Fort Leonard Wood
not to comply with the interim award and its supplement, coupled with
the action of Fort Leonard Wood in following that instruction,
constitutes a violation of section 7116(a)(1). It argues that, since
Fort Leonard Wood was the level of exclusive recognition, the
involvement of Headquarters in the decision not to comply with the
interim awards resulted in improper interference with the collective
bargaining relationship.
Finally, the General Counsel contends that the Respondents' failure
and refusal to comply with the interim awards also violates section
7116(a)(5). It argues that such failure and refusal "injected a new
term and condition into the bargaining relationship without affording
the Union prior notice and an opportunity to engage in
pre-implementation bargaining" in good faith.
IV. Analysis
In Department of Labor, Employment Standards Administration/Wage and
Hour Division, Washington, D.C., 10 FLRA 316 (1982), the Authority
reconsidered its previous decisions on whether a refusal to participate
in arbitration proceedings under a negotiated grievance procedure is
inconsistent with section 7121 of the Statute and consequently violates
section 7116(a)(1) and (8) or (b)(1) and (8), as applicable. The
Authority concluded that neither the language of section 7121 nor its
legislative history "provides a basis for excusing (a) party from
participating in the mechanism mandated by Congress in section 7121 for
resolving grievances not satisfactorily settled by the parties at
earlier stages of the negotiated grievance procedure." 10 FLRA at 320.
The Authority noted that a refusal to participate in arbitration
proceedings could result in the hindrance or obstruction of grievance
resolution by binding arbitration, contrary to the mandate and intent of
Congress in enacting section 7121. The Authority therefore ruled that a
refusal by a party to participate in "the procedures for the settlement
of grievances" conflicts with section 7121 of the Statute.
This principle was subsequently applied in Department of the Army,
83rd United States Army Reserve Command, Columbus, Ohio, 11 FLRA 55
(1983), where the parties had presented their positions to the
arbitrator on whether there first should be a separate hearing on a
question of the arbitrability of the grievance. When the arbitrator
decided not to hold a separate hearing, the agency notified the
arbitrator and the union that it refused to participate in the
proceeding and that it considered the hearing cancelled. On the basis
of the Employment Standards Administration case, the Authority
determined that the agency had failed to comply with the requirements of
section 7121 and therefore had violated section 7116(a)(1) and (8) of
the Statute. The Authority held that, whatever the agency's position on
the propriety of the arbitrator's procedural determination, the agency
was obligated to proceed to arbitration and, if dissatisfied with the
award, take the appropriate action of filing exceptions to the award
under section 7122(a) of the Statute. 83rd U.S. Army Reserve Command,
11 FLRA 56 n.1.
Although both the Employment Standards Administration and the 83rd
U.S. Army Reserve Command cases involved the refusal to participate in
any proceedings before the arbitrators, we find in this case that the
refusal to continue to participate in the proceedings before the
Arbitrator likewise failed to comply with the requirements of section
7121. As similarly concluded in Employment Standards Administration,
neither the language of section 7121 nor its legislative history
provides a basis for excusing a party's continued participation in the
procedures for the settlement of grievances. Further, in this case the
Respondents' refusal to continue to participate in the proceedings
before the Arbitrator has resulted in the obstruction of the resolution
of a grievance by binding arbitration, contrary to the mandate and
intent of Congress. See Employment Standards Administration at 321. As
the Authority indicated in 83rd U.S. Army Reserve Command, whatever the
position of the Respondents on the propriety of the Arbitrator's interim
awards, the Respondents were obligated to proceed with the arbitration
proceedings absent appropriate action, if any, to challenge those awards
immediately. /2/
We note that the Respondents admitted in their joint answer to the
General Counsel's complaint, and then also stipulated, that Respondent
Headquarters "instructed" Respondent Fort Leonard Wood not to comply
with the Arbitrator's interim awards, and Fort Leonard Wood followed
that instruction. We note further that, before receiving Headquarter's
instruction, Fort Leonard Wood had participated actively in the
arbitration proceeding, as discussed above.
The Authority has repeatedly held that, when agency management at a
higher level prevents agency management at a subordinate level of
exclusive recognition from complying with its obligations under the
Statute by "directive," "requirement," or "direction," the higher-level
management entity violates section 7116(a)(1) and (8) of the Statute.
/3/ The Authority has held further that, where the subordinate entity is
thus left with no discretion to comply with its statutory obligations,
that entity will not also be found to have violated section 7116(a).
/4/
Consistent with this precedent, we find here that Respondent
Headquarters' "instruction" to Respondent Fort Leonard Wood not to
comply with the Arbitrator's interim awards constitutes a violation of
section 7116(a)(1) and (8) on Headquarters' part. We view the
Respondents' use of the term "instruction" as the functional equivalent
of the terms "directive," "requirement," and "direction," /5/ which have
been used most frequently in prior Authority decisions regarding
"interference" violations under section 7116(a)(1). /6/ Further
Respondent Headquarters' instruction not to comply with the Arbitrator's
interim awards afforded Respondent Fort Leonard Wood no discretion to do
otherwise, and rendered its non-compliance with the awards merely
ministerial in nature. We therefore find that Fort Leonard Wood's
action in following Headquarters' instruction cannot be deemed to
constitute an independent violation of section 7116(a)(1) and (8) by
Fort Leonard Wood. We shall therefore dismiss that allegation.
Finally, although the Respondents admitted that they refused and
failed to comply with the Arbitrator's interim awards, we cannot find
that, in doing so, they also refused and failed to consult or negotiate
with the Union in good faith, as alleged. The General Counsel argues in
support of this allegation that, by not complying with the interim
awards, the Respondents "injected a new term and condition into the
bargaining relationship without affording the Union prior notice and an
opportunity to engage in pre-implementation bargaining." We find that
the Respondents, by their actions, did not establish new conditions of
employment requiring negotiation, but rather refused to proceed further
with the arbitration process. Since these circumstances created no
bargaining obligation, we shall dismiss the section 7116(a)(5)
allegation as to both Respondents.
Conclusion
Based on the above analysis, we conclude that Respondent Headquarters
has violated section 7116(a)(1) and (8) of the Statute, as alleged, but
that Respondent Fort Leonard Wood has not. We conclude additionally
that neither of the Respondents has been shown to have violated section
7116(a)(5), as further alleged.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority ORDERS that the
Department of the Army Headquarters in Washington, D.C., shall:
1. Cease and desist from:
a. Instructing Fort Leonard Wood not to comply with the Arbitrator's
interim awards or otherwise interfering with the pending arbitration
regarding a grievance filed by the National Association of Government
Employees, R14-32, SEIU/AFL-CIO, the employees' exclusive representative
at the Fort Leonard Wood, Missouri, facility, in connection with the
removal of a unit employee, contrary to the requirements of section 7121
of the Statute.
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. Upon the request of the National Association of Government
Employees, R14-32, SEIU/AFL-CIO, permit Fort Leonard Wood to comply with
the Arbitrator's interim awards and otherwise resume full participation
in the arbitration proceedings regarding the removal of the unit
employee.
b. Post at Headquarters and at its Fort Leonard Wood, Missouri,
facility, copies of the attached Notice, on forms furnished by the
Federal Labor Relations Authority. Upon receipt of such forms, they
shall be signed personally by the Administrator of the agency, 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 insure that such Notices are not
altered, defaced, or covered by any other material.
c. Notify the Regional Director of Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
IT IS FURTHER ORDERED that the allegation in the complaint regarding
Fort Leonard Wood's violation of section 7116(a)(1), (5), and (8) of the
Statute is DISMISSED, as is the allegation regarding Army Headquarters'
violation of section 7116(a)(5) of the Statute.
Issued, Washington, D.C. July 21, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Section 7116 provides as follows:
Section 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency --
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . . . . . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter;
. . . . . . . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
(2) The Authority notes in this regard that the interim awards relate
to a removal action as to which exceptions may not be filed with the
Authority under the Statute. Thus, whatever action might appropriately
have been available to challenge the interim awards would necessarily
have involved the Office of Personnel Management under 5 U.S.C. Section
7703(d) which effectively provides that, in certain circumstances, the
Director of OPM may obtain judicial review of any final order or
decision of an arbitrator in these types of matters.
(3) See, for example, U.S. Department of Justice and Department of
Justice Bureau of Prisons (Washington, D.C.) and Federal Correctional
Institution (Danbury, Connecticut), 20 FLRA No. 5 (1985), enforced, 792
F.2d 25 (2d Cir. 1986); Department of Health and Human Services, Region
II, 15 FLRA 710, 711 n.2 (1984); Department of the Interior, Water and
Power Resources Service, Grand Coulee Project, Grand Coulee, Washington,
9 FLRA 385, 388 (1982).
(4) See cases cited in footnote 3 above.
(5) A superior's "instruction" is, by definition, the same as a
superior's "direction" or "order" in allowing for no course of action
but to follow the instruction. See WEBSTER'S NINTH NEW COLLEGIATE
DICTIONARY (1985).
(6) See cases cited in footnote 3 above.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION 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 instruct Fort Leonard Wood not to comply with the
Arbitrator's interim awards or otherwise interfere with the pending
arbitration regarding a grievance filed by the National Association of
Government Employees, R14-32, SEIU/AFL-CIO, the employees' exclusive
representative at the Fort Leonard Wood, Missouri, facility, in
connection with the removal of a unit employee, contrary to the
requirements of section 7121 of the Statute.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Statute.
WE WILL, upon the request of the National Association of Government
Employees, R14-32, SEIU/AFL-CIO, permit Fort Leonard Wood to comply with
the Arbitrator's interim awards and otherwise resume full participation
in the arbitration proceedings regarding the removal of the unit
employee.
(Agency)
Dated: . . . By: (Signature and Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VII, whose address is: 535 16th Street, Suite 310,
Denver, CO 80202 and whose telephone number is (303) 837-5224.