[ v22 p928 ]
22:0928(95)CA
The decision of the Authority follows:
22 FLRA No. 95
UNITED STATES DEPARTMENT OF JUSTICE
BUREAU OF PRISONS, WASHINGTON, D.C.
AND BUREAU OF PRISONS, FEDERAL CORRECTIONAL
INSTITUTION, RAY BROOK, NEW YORK
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3882
Charging Party
Case No. 1-CA-40368
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent and the General Counsel to the attached Decision
of the Administrative Law Judge. The Respondent filed an opposition to
the General Counsel's exceptions and cross-exceptions and the General
Counsel filed an opposition to the Respondent's exceptions. The
complaint alleged that the Respondent violated section 7116(a)(1), (5)
and (8) of the Federal Service Labor-Management Relations Statute (the
Statute) when it failed to comply with the provisions of section 7122(b)
of the Statute by refusing to implement an arbitration award clarifying
an earlier award dealing with an employee's termination from employment.
II. Facts
A grievance over the termination of Richard Frontera, an employee at
the Respondent's Ray Brook, New York facility (FCI, Ray Brook), was
filed pursuant to the parties' negotiated grievance procedure and the
matter was submitted to arbitration. On December 16, 1983, Arbitrator
Dale S. Beach found that there was not just and sufficient cause for the
adverse action taken. He issued an award that reduced the penalty to a
60 calendar day suspension and ordered that "(w)ithin 10 calendar days
of receipt of this Award Mr. Frontera shall be reinstated to his regular
job without the loss of any employee benefits." The award also provided
for backpay to June 10, 1982, the date of discharge, less pay for the
60-day suspension, and less any possible unemployment compensation or
wages received from other employment during the period of discharge.
Upon receipt of the December 16th award, the Respondent determined that
an appeal should not be filed. It also decided that Frontera would be
returned to work in a location other than FCI, Ray Brook. The
Respondent did not request the Office of Personnel Management (OPM) to
take the necessary steps to perfect an appeal to the United States Court
of Appeals for the Federal Circuit in accordance with the provisions of
section 7121(f) of the Statute and 5 U.S.C. Section 7703(d).
The Respondent decided not to return Frontera to FCI, Ray Brook.
Rather, the Respondent reassigned him to the United States Penitentiary,
Lewisburg, Pennsylvania (USP, Lewisburg). This was done despite
vigorous objection by the Charing Party (the Union) that this would not
satisfy the arbitrator's award. The Union contacted Arbitrator Beach on
February 7, 1984, and sought an interpretation of his order that the
Respondent "reinstate Frontera to his regular job without the loss of
any employee benefits." The Respondent did not receive proper notice of
the request for clarification.
On March 1, 1984, without providing the Respondent an opportunity to
be heard, Arbitrator Beach issued a Clarification of Award, holding that
Frontera should be reinstated to his regular job as Cook-Foreman at FCI,
Ray Brook, without the loss of any employee benefits. In his
clarification, Arbitrator Beach explained that "(t)he use of the term
'regular job' in my award means regular job at the Federal Correctional
Institution at Ray Brook, New York. Normally when arbitrators say
'regular job' they mean the same job at the same location held by the
grievant before his discharge."
The Respondent did not request OPM to take the necessary steps to
perfect an appeal of the clarified award to the Federal Circuit.
Instead, the Respondent refused compliance and filed exceptions to the
clarified award with the Authority. The Respondent admits that the
award as clarified has not been implemented.
On June 29, 1984, the Authority in American Federation of Government
Employees, Local 3882 and Federal Prison System, Ray Brook, New York, 15
FLRA 204 (1984), dismissed the Respondent's exceptions, noting that it
had no jurisdiction to review the case, as the arbitration award
involved a section 7121(f) matter, and referred the Respondent to its
right to seek judicial review pursuant to 5 U.S.C. Section 7703. The
Respondent's motion for reconsideration was denied by the Authority on
December 11, 1984, on the same grounds.
The assignment of Frontera to USP, Lewisburg, represented an economic
and personal burden for him. He did begin working at Lewisburg in early
1984, but resigned on March 2, 1985, due to such hardship.
III. Judge's Decision
The Judge, contrary to the Respondent's contentions, concluded that
the Authority had jurisdiction to order compliance with section 7121(f)
arbitration awards. The Judge found that the sentence in section 7122
mandating that agencies "shall take the actions required by an
arbitrator's final award" refers to arbitration awards reviewed by the
Authority, and to adverse action arbitration awards reviewable by the
United States Court of Appeals for the Federal Circuit.
The Judge further found that the charge in this case was timely
filed, finding that the record, at a minimum, establishes that OPM
received notice of the clarified award through the Respondent, and that
OPM thereafter took no action to intervene in the arbitration proceeding
for the purpose of requesting reconsideration as a step toward appeal to
the Federal Circuit. Since more than 30 days passed after OPM's receipt
of notice, OPM's right to proceed further was extinguished. Therefore,
the clarified award became final and binding. He concluded that the
charge in this case was filed well within six months of the date on
which the clarified award became final and binding, and within the
six-month period prescribed by section 7118(a)(4) of the Statute.
The Judge concluded that because the recofd clearly showed that the
Respondent did not comply with the March 1, 1984 clarified award after
it became final and binding, the Respondent violated section 7116(a)(1)
and (8) of the Statute. The Judge found it unnecessary to pass upon
whether such conduct was also violative of section 7116(a)(5) of the
Statute. The Judge ordered that the Respondent comply with the
clarified award and make Frontera whole, consistent with applicable law
and regulation, for any loss of pay he may have suffered by reason of
his separation (resignation) from Federal service brought about by the
Respondent's unlawful conduct, and pay to him a sum equal to the amount
he would have earned or received from the date of his separation to the
effective date of the offer of reinstatement, less any amount earned
through other employment during this period of time. The Judge also
ordered the Respondent to make Frontera whole, consistent with law and
regulation, for any monetary losses incurred as a result of the
Respondent's assignment of Frontera to USP, Lewisburg, for which he has
not otherwise been reimbursed.
IV. Positions of the Parties
The Respondent asserts in its exceptions that: (1) the Authority
does not have jurisdiction under section 7122(b) of the Statute to
enforce the award of an arbitrator issued pursuant to section 7121(e)
and (f) of the Statute; (2) the charge in this case was filed more than
six months after the alleged unfair labor practice occurred; (3) the
March 1, 1984 clarified award did not constitute in itself an
enforceable award because proper service of the request for
clarification by the Union was never received by the Respondent and
because it had no opportunity to be heard prior to its issuance; (4)
the award violated management's reserved right to assign employees under
section 7106(a)(2)(A) of the Statute. The Respondent also excepted to
the Judge's remedy, questioning whether the complaint should have been
found to include the matter of Frontera's resignation, and whether the
remedy exceeds the Authority's powers. The Respondent also objected to
several of the Judge's evidentiary rulings and findings of fact.
The General Counsel excepted to the Judge's finding that it was
unnecessary to pass upon whether the conduct found to be violative of
section 7116(a)(1) and (8) of the Statute also violated section
7116(a)(5) of the Statute. The General Counsel also excepted to the
Judge's ruling denying its motion to amend the complaint to include the
allegation that the Respondent's action was also contrary to section
7121 of the Statute. Finally, the General Counsel renewed its arguments
in support of the Judge's rationale as to the timeliness of the unfair
labor practice charge.
V. Analysis
In agreement with the Judge, the Authority finds that it does have
jurisdiction to order compliance with section 7121(f) arbitration
awards. In a recent case, issued subsequent to the Judge's Decision,
United States Army Adjutant General Publications Center, St. Louis,
Missouri, 22 FLRA No. 20 (1986), the Authority resolved this very issue.
It held that, while the Authority does not have jurisdiction to review
exceptions to the merits of an arbitrator's award falling within section
7121(f) of the Statute, once such an award has become final and binding,
the Authority has jurisdiction over matters of compliance with the award
in an unfair labor practice proceeding.
We agree with the Judge that the clarified award in this case became
final and binding at the expiration of 30 days after OPM's receipt of
notice of the award, and that the unfair labor practice charge in this
case was filed within the six-month period required by section
7118(a)(4) of the Statute.
The Respondent's exceptions also raise issues as to: (1) the lack of
proper service of the request for clarification and the resulting lack
of an opportunity to be heard by the Arbitrator, and (2) the alleged
interference with management's reserved rights under section 7106 of the
Statute. We find, as did the Judge, that these issues are not litigable
in this unfair labor practice proceeding, but are matters that go to the
merits of the award that may only be raised within the appeals
procedures established by Congress. See United States Army Adjutant
General Publications Center, cited above.
There is no dispute that the Respondent has not complied with the
March 1, 1984 clarified award of Arbitrator Beach, which as we have
found became final and binding when no timely action was taken by the
Director of OPM under section 7703(d) of Title 5, United States Code.
Recognizing that the Authority has jurisdiction to order compliance with
the Arbitrator's award in this unfair labor practice proceeding, the
Authority finds that the Respondent's noncompliance is in violation of
section 7116(a)(1) and (8) of the Statute. /1/
VI. Remedy
The Authority finds that the Judge's recommended remedy is
appropriate in the circumstances of this case. In this regard, while we
affirm the Judge's ruling that the General Counsel's motion to amend the
complaint be denied, we agree that the Judge's finding upon which he
fashioned his recommended remedy fell within the scope of the complaint.
The Arbitrator's award obligated the Respondent to reinstate employee
Frontera to his former position at FCI, Ray Brook, New York. The
Respondent ordered him to report to USP, Lewisburg, Pennsylvania. The
record shows that Frontera and the Charging Party on his behalf went to
great lengths in an attempt to persuade the Respondent that the
reassignment would be a hardship. While the Respondent gave the reason
that in cases such as Frontera's it was Bureau policy to reassign the
employee, it also insisted that in its opinion the reassignment was not
precluded by the Arbitrator's award. The Arbitrator's clarification
clearly showed that the reassignment was inconsistent with the award.
The Judge's finding that the Respondent's failure to comply with the
award caused Frontera's resignation is supported by the record.
Accordingly, we find that, but for the Respondent's refusal to comply
with the Arbitrator's award, Frontera would not have resigned from
Federal service. We shall adopt the Judge's recommended Order. See
Department of the Treasury, United States Customs Service, New York
Region, New York, New York, 21 FLRA No. 119 (1986).
VII. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the exceptions and cross-exceptions to that
Decision, the positions of the parties, and the entire record, /2/ and
adopts the Judge's findings, conclusions, and recommended Order. We
conclude that the Respondent's refusal to reinstate Frontera to his
regular job at FCI, Ray Brook, New York, without the loss of any
employee benefits, as required by Arbitrator Beach's award, which had
become final and binding, constituted a failure to comply with the
Arbitrator's award and a violation of section 7116(a)(1) and (8) of the
Statute.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the United States Department of Justice,
Bureau of Prisons, Washington, D.C, and Bureau of Prisons, Federal
Correctional Institution, Ray Brook, New York, shall:
1. Cease and desist from:
(a) Failing and refusing to implement the March 1, 1984 Clarification
of Award issued in FMCS Case No. 82K/24082 by Arbitrator Dale S. Beach,
by failing and refusing to reinstate Richard Frontera to his regular job
as a Cook-Foreman at the Federal Correctional Institution, Ray Brook,
New York.
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Comply with the March 1, 1984 Clarification of Award issued in
FMCS Case No. 82K/24082 by Arbitrator Dale S. Beach, by offering to
reinstate Richard Frontera to his regular job as a Cook-Foreman at the
Federal Correctional Institution, Ray Brook, New York, without prejudice
to his seniority or other rights or privileges.
(b) Make Richard Frontera whole, consistent with applicable laws and
regulations, for any loss of pay he may have suffered by reason of his
separation from Federal service brought about by Respondent's unlawful
conduct, and pay to him a sum equal to the amount he would have earned
or received from the date of his separation (resignation) on March 2,
1985, to the effective date of the offer of reinstatement, less any
amount earned through other employment during this period of time.
(c) Consistent with law and regulation, make Richard Frontera whole
for any monetary losses incurred as a result of Respondent's assignment
of Richard Frontera to the United States Penitentiary, Lewisburg,
Pennsylvania, and for which he has not otherwise been reimbursed.
(d) Post at its Washington, D.C. and Ray Brook, New York facilities,
copies of the attached Notice on forms to be furnished by the Federal
Labor Relations Authority. Upon receipt of such forms they shall be
signed by the Director, Bureau of Prisons, Washington, D.C., 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.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region I, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with the Order.
Issued, Washington, D.C., July 30, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
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 implement the March 1, 1984
Clarification of Award issued in FMCS Case No. 82K/24082 by Arbitrator
Dale S. Beach, by failing and refusing to reinstate Richard Frontera to
his regular job as a Cook-Foreman at the Federal Correctional
Institution, Ray Brook, New York.
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 comply with the March 1, 1984 Clarification of Award issued
in FMCS Case No. 82K/24082 by Arbitrator Dale S. Beach, by offering to
reinstate Richard Frontera to his regular job as a Cook-Foreman at the
Federal Correctional Institution, Ray Brook, New York, without prejudice
to his seniority or other rights or privileges.
WE WILL make Richard Frontera whole, consistent with applicable laws
and regulations, for any loss of pay he may have suffered by reason of
his separation (resignation) on March 2, 1985, from Federal service
brought about by Respondent's unlawful conduct, and pay to him a sum
equal to the amount he would have earned or received from the date of
his separation to the effective date of the offer of reinstatement, less
any amount earned through other employment during this period of time.
WE WILL, consistent with law and regulation, make Richard Frontera
whole for any monetary losses incurred as a result of Respondent's
assignment of Richard Frontera to the United States Penitentiary,
Lewisburg, Pennsylvania, and for which he has not otherwise been
reimbursed.
(Agency or Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region I, Federal Labor Relations Authority, whose address is:
441 Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone
number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 1-CA-40368
UNITED STATES DEPARTMENT OF JUSTICE,
BUREAU OF PRISONS, WASHINGTON, D.C., AND
BUREAU OF PRISONS, FEDERAL CORRECTIONAL
INSTITUTION, RAY BROOK, NEW YORK
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3882
Charging Party
William C. Owen, Esquire
For the Respondent
Richard Zaiger, Esquire
Peter F. Dow, Esquire
For the General Counsel
Gay Snyder, Esquire
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. Section 7101, et seq. (hereinafter referred to as
"the Statute"), and the Rules and Regulations issued thereunder.
The complaint alleged that since on or about March 1, 1984, and
continuing to March 12, 1985, the date on which the complaint was
issued, the United States Department of Justice, Bureau of Prisons,
Washington, D.C.; and Bureau of Prisons, Federal Correctional
Institution, Ray Brook, New York (Respondent), failed to comply with the
provisions of 5 U.S.C. Section 7122(b) of the Statute, by refusing to
implement a clarified arbitration award issued by Arbitrator Dale S.
Beach on March 1, 1984 for the purpose of clarifying an earlier
arbitration award issued by Arbitrator Beach on December 16, 1983, in
Case No. 82K/24082. The complaint further alleged that the conduct
outlined violated Section 7116(a)(1), (5) and (8) of the Statute. /3/
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduced relevent evidence, and
examine and cross-examine witnesses. Based upon the entire record,
including a stipulation of facts, exhibits, relevant evidence adduced at
the hearing, /4/ and briefs filed by the parties, I make the following
findings of fact, conclusions and recommendations.
Findings of Fact
Richard Frontera, a Cook-Foreman at Respondent's Federal Correctional
Institution, Ray Brook, New York (FCI, Ray Brook), was terminated on
June 10, 1982, for intimidating and physically abusing a prisoner, and
for failing to report a possible breach of prison security. The
American Federation of Government Employees, AFL-CIO, Local 3882
(Union), grieved Frontera's termination to arbitration, and on December
16, 1983, Arbitrator Dale S. Beach issued an award wherein he held that
there was not just and sufficient cause for the adverse action taken.
He reduced the penalty to a 60 calendar day suspension and ordered that
"(w)ithin 10 calendar days of the receipt of this Award Mr. Frontera
shall be reinstated to his regular job without the loss of any employee
benefits." The award also provided for backpay to June 10, 1982, the
date of discharge, less pay for the 60-day suspension, and less any
possible unemployment compensation or wages received from other
employment during the period of discharge.
Upon receipt of the December 16th award, the Respondent determined
that an appeal should not be filed. It was also decided that Mr.
Frontera would be returned to work in a location other than FCI, Ray
Brook. Respondent took no action to persuade the Office of Personnel
Management (OPM) to perfect an appeal in accordance with the provisions
of 5 U.S.C. Section 7121(f) and 7703(d) (G.C. Exh. No. 1(H), at page 3;
Tr. 212, 213, 216). /5/ If OPM became aware of the existence of the
December 16th award for appeal purposes, the specific nature and date of
such awareness was not made a part of the record. There was no showing
that OPM received a copy of the December 16th award, or that OPM was
ever otherwise put on notice of its existence.
Respondent surveyed available openings in Mr. Frontera's work
classification and grade and determined initially that he should be
assigned to work at the Federal Prison Camp (FPC), Big Spring, Texas.
/6/ The Respondent's position was based upon the fact that a literal
interpretation of the December 16th award did not preclude an immediate
reassignment to another institution if the new position matched his
prior job classification and pay level (Tr. 117-118). /7/
Mr. Frontera communicated with a representative of the Union who
advised him to fight the transfer through the Union, and to communicate
with his Congressman concerning the matter (Tr. 157-158). A letter
dated January 10, 1984 addressed to Mr. Frontera by Congressman David
O'B. Martin disclosed the results of an unsuccessful effort to resolve
the issue (G.C. Exh. No. 5).
At a meeting with Respondent's representative on January 16, 1984,
Mr. Frontera was advised that he was being reassigned to the FPC, Big
Spring, Texas as of February 5, 1984, and that he should report there no
later than 12:00 noon, on February 14, 1984 (Jt. Exh. Nos. 3 and 4).
On January 27, 1984, Congressman David O'B. Martin again questioned
the Respondent's refusal to put Mr. Frontera back to work at FCI, Ray
Brook (Jt. Exh. No. 6). In a letter dated February 1, 1984, the
Respondent, through Norman Carlson, Director, Bureau of Prisons advised
that in cases involving serious misconduct and mistreatment of inmates,
it was Bureau policy "to reassign the employee to another facility in
order to give him an opportunity for a fresh start among new co-workers
and to lessen the possibility for reprisal against him by the inmate
population." It was further noted that the reassignment of Mr. Frontera
was not a disciplinary action, but merely an attempt to insure that Mr.
Frontera would not be returned to a situation which would endanger him
or the security of an institution (Jt. Exh. No. 7).
On February 1, 1984, the Respondent informed Frontera that a decision
had been made to cancel his transfer to FPC, Big Spring, Texas, and that
instead he would be reassigned to the United States Penitentiary (USP),
Lewisburg, Pennsylvania, effective February 5, 1984 (Jt. Exh. Nos. 8 and
9). He was ordered to report on February 7, 1984. /8/
In response to a Union request for an opportunity to discuss
Respondent's refusal to return Frontera to his job at FCI, Ray Brook, a
meeting was held on February 6, 1984. Respondent took the position that
it had a right to reassign Frontera under the circumstances, and further
that there was nothing in the December 16th award which mandated his
return to FCI, Ray Brook (Tr. 146-148). At the meeting Ronald N.
Cloutier, President of the Union was handed a copy of a letter dated
February 6, 1984, signed by J.T. Hadden, Warden, FCI, Ray Brook. The
letter repeated the Respondent's position that reassignment was
necessary to give Frontera a fresh start and "to lessen the possibility
of any reprisal against him by the inmate population." He noted that the
Respondent was "trying to insure that Mr. Frontera is not returned to a
situation which would endanger him or jeopardize the orderly running and
security of the institution." (G.C. Exh. No. 4).
At this point in the case history Mr. Cloutier contacted Mr. George
Girlando in the AFGE's Second District Office, New Brunswick, New Jersey
to ascertain if the Union might petition for a clarification of
Arbitrator Beach's December 16, 1982 award (Tr. 15). As a result of
this contact Mr. Girlando addressed a mailgram dated February 7, 1984 to
Arbitrator Beach, and sought an interpretation of paragraph (3) of the
award which ordered the Respondent to reinstate Mr. Frontera to his
regular job without the loss of any employee benefits. (Jt. Exh. Nos.
11, 12 and R. Exh. No. 1).
The Respondent's representative in the arbitration proceeding was
clearly identified as Ronald Brown; however, the mailgram was
misdirected to one Raymond Brown at FCI, Ray Brook (Tr. 55). Ronald
Brown's testimony, and other testimony in the record reflects that the
Respondent did not receive notice of the request for clarification (Tr.
81-84, 109-111, 172-173. /9/
On February 15, 1984, the Respondent processed a number of documents
or personnel actions concerning Mr. Frontera's reinstatement and return
to duty (Jt. Exh. No. 17). His separation of June 10, 1982 was
cancelled. He was suspended for a 60-day period in accordance with the
December 16th award. He was characterized on a personnel action as
having been "returned to duty" at FCI, Ray Brook as of August 10, 1982,
although he was never actually allowed to return to work at the Ray
Brook facility. As of February 26, 1984, he was reassigned from FCI,
Ray Brook to the United States Penitentiary, Lewisburg, Pennsylvania for
payroll purposes (Jt. Exh. No. 17). Between February 5, 1984 and
February 26, 1984 he was carried as an employee of FCI, Ray Brook,
although actually reassigned to his new post in Lewisburg during this
period (Tr. 176-177).
On March 1, 1984, in response to the request for clarification, and
without providing Respondent an opportunity to be heard, Arbitrator
Beach issued a Clarification of Award, holding that Richard Frontera
should be reinstated to his regular job as Cook-Foreman at FCI, Ray
Brook without the loss of any employee benefits (Jt. Exh. No. 13).
The Respondent did not request OPM to take the necessary steps to
perfect an appeal to the United States Court of Appeals for the Federal
Circuit in accordance with the provisions of 5 U.S.C. Section 7703(d)
(G.C. Exh. No. 1(H) at page 3). Instead, Respondent's representatives
decided to refuse compliance, and to file exceptions to the award with
the Authority (Tr. 118-119, 76-77). /10/
The clarified award was the subject of discussion between Mr. Owen,
Respondent's Counsel and an OPM staff representative. Mr. Owen apprised
OPM that he had two theories on which to attack the clarified award (Tr.
213), and inquired whether it would be wise to appeal to the Authority
(Tr. 215). He related that he received an affirmative reply from OPM
(Tr. 215). This telephone call would necessarily have had to occur
between March 1, 1984, the date of issuance of the clarified award, and
March 27, 1984, the date on which the Respondent filed exceptions with
the Authority (Jt. Exh. No. 18).
FPM Letter 711-160 dated July 13, 1981 requires federal agencies to
supply OPM with two copies of all Section 7121(f) arbitration awards
within five days of an agency's receipt of the award so as to enable OPM
to exercise its statutory right to appeal in such cases. It further
requires agencies to notify OPM by telephone "as early as possible if
(an) agency believes that OPM should seek court review . . . " FPM
Bulletin 711-91(3) dated November 13, 1984, advises agencies to
"promptly serve OPM a copy of arbitral awards in these cases to allow
maximum time to assess their impact and to determine whether
reconsideration and judicial review are warranted." This Bulletin notes
that OPM "must rely on agencies for prompt service of troublesome
decisions subject to judicial review within prescribed time limits."
The telephone call to OPM acknowledged by Respondent's counsel was
consistent with Respondent's obligation to phone OPM in cases wherein an
agency has an interest in appealing a Section 7121(f) arbitration award.
(FPM Letter 711-160 dated July 13, 1981). Presumably, neither
Respondent nor OPM was interested in taking the necessary steps to
perfect an appeal to the Federal Circuit, as both the Respondent and OPM
elected to take their chances with an appeal to the Authority, the wrong
forum in this instance. The reason for the OPM decision on this issue
does not appear in the record; however, the record does reflect that
the Respondent's representatives labored or appeared to labor, under the
erroneous assumption that the filing of exceptions was governed by
Section 7122 of the Statute (Jt. Exh. Nos. 18 and 20).
On June 29, 1984, the Authority dismissed the exceptions, /11/
clearly noted that it had no jurisdiction to review the case, and
referred the Respondent to review procedures set out in 5 U.S.C. Section
7703. In so doing the Authority stated:
The matters described in Section 7121(f) of the Statute include
those covered under 5 U.S.C. Section 7512 which applies to
specified adverse actions, including removals and suspensions for
more than 14 days. Pursuant to Section 7121(f), review of an
arbitration award relating to such matters must be obtained in
accordance with 5 U.S.C. Section 7703, i.e., in the same manner
and under the same conditions as judicial review of a final
decision of the Merit Systems Protection Board. /12/
On July 11, 1984, the Respondent moved for reconsideration, and
requested a stay of the Authority's June 29, 1984 order dismissing the
Respondent's exceptions (Jt. Exh. No. 20). /13/ On August 27, 1984,
while the motion for reconsideration was pending before the Authority,
the charge initiating this case was filed. On December 11, 1984, the
Respondent's motion for reconsideration was denied, thus upholding the
Authority's earlier ruling that it had no jurisdiction in the matter
(Jt. Exh. No. 23).
Following the denial of the Respondent's motion for reconsideration,
the Union again made a request that Mr. Frontera be reassigned to FCI,
Ray Brook. However, the Respondent declined on the ground that the
Federal Bureau of Prisons had appropriately exercised its discretion to
assign him to the USP, Lewisburg (Jt. Exh. No. 24, and G.C. Exh. No. 6).
The assignment of Mr. Frontera to the USP in Lewisburg, Pennsylvania
represented an economic burden for Mr. Frontera. The record revealed
that he and his adopted family had lived in Tupper Lake, New York, in
the Ray Brook area since 1976, and that Lewisburg was nearly 400 miles
away from his established home. After commencing work in Lewisburg
early in 1984, he had to return home approximately once a month to
attend to family business. Circumstances precluded his adopted family
from relocating. As a result he had to contribute to the support of his
home in Tupper Lake, New York, while at the same time renting a room in
Lewisburg. These adverse circumstances ultimately led to economic and
personal hardship, and to Mr. Frontera's resignation on March 2, 1985,
due to such hardship (Jt. Exh. No. 25).
Discussion and Conclusions
Prior to the hearing counsel representing the Respondent moved to
dismiss the complaint on the ground that conduct alleged in the
complaint as a basis for violation of Sections 7116(a)(1), (5) and (8)
of the Statute, occurred more than six months before the filing of the
charge. It was argued that any unfair labor practices which might have
occurred are time-barred by the provisions of Section 7118(a)(4) of the
Statute (G.C. Exh. No. 1(N). This motion was referred to the Office of
Administrative Law Judges for disposition in accordance with the
provisions of 5 C.F.R. Section 2423.22(b). At the opening of the
hearing record, counsel representing the Respondent also moved to
discuss the complaint on the ground that the arbitration award herein
falls within the purview of Section 7121(f) of the Statute. It was
argued that the Authority has no jurisdiction to order compliance with
such awards (R. Exh. No. 1). Decisions on these motions were reserved.
/14/
The motion to dismiss based upon the absence of Authority
jurisdiction rests on the theory that Section 7122(b) relates entirely
to arbitration awards which could have been, but were not, appealed to
the Authority in accordance with the provisions of Section 7122(a) of
the Statute. /15/ Accordingly, it is argued that as a matter of law
Section 7122(b) is inapplicable and that there can be no violation of
7122(b) for refusing to take action required by an adverse action
arbitration award appealable to the United States Court of Appeals for
the Federal Circuit under the provisions of Section 7121(f). /16/
The argument rests on the premise that the Authority may enforce only
those arbitration awards which it has been given express jurisdiction to
review, and further that failure to comply with arbitration awards
falling with the purview of Sections 7121(f) of the Statute may not be
the subject of an unfair labor practice proceeding. It is also
contended that enforcement of adverse action arbitration awards may
occur only through utilization of a compliance proceeding initiated
under the provisions of 5 U.S.C. Section 1205 pertaining to the
enforcement of Merit Systems Protection Board orders.
Respondent's argument on this issue is not persuasive. Section
7121(f) of the Statute merely outlines the appeal route that must be
pursued with respect to an arbitration award relating to matters covered
under 5 U.S.C. Sections 4303 and 7512. Section 7121(f) provisions
placing the arbitrator in the place of the Merit Systems Protection
Board are specifically limited to 5 U.S.C. Section 7703 (judicial review
of decisions of the Merit Systems Protection Board). Section 7121(f)
does not include enforcement procedures under 5 U.S.C. Section 1205.
Moreover, there is no indication that the latter section extends to
arbitral awards.
Although Section 7122(b) provides finality for arbitration decisions
appealable to the Authority if timely exceptions are not filed with the
Authority, it also specifically provides that "An agency shall take the
actions required by an arbitrator's final award." There would be no
logical reason for limiting the mandate reflected in this sentence to
arbitration awards falling within Authority appellate jurisdiction, in
light of the fact that Section 7121(f) provides a procedure for
finalizing Section 7121(f) arbitration awards.
Section 7122 provides a procedure for judicial review of arbitration
awards falling within the purview of Authority jurisdiction and, by
reason of the provisions of Section 7121(f), it also incorporates by
reference a procedure (5 U.S.C. Section 7703) for review of adverse
action arbitration awards by the United States Court of appeals for the
Federal Circuit. The quoted sentence mandating that agencies "shall
take the actions required by an arbitrator's final award" refers to
arbitration awards reviewed by the Authority, and to adverse action
arbitration awards reviewable by the United States Court of Appeals for
the Federal Circuit. This interpretation operates to provide a
consistent procedural approach designed to compel compliance with
arbitration awards. In either case, a failure to comply with the
provisions of Section 7122(b), constitutes an unfair labor practice
within the meaning of Section 7116(a)(8) of the Statute, and thus brings
to bear upon such non-compliance, the full power of the Statute's
enforcement mechanisms relating to unfair labor practices. /17/
The interpretation of the Statute set out is reflected in summary
form in a memorandum dated October 18, 1984, addressed to the General
Counsels of Executive Departments, Agencies, and Independent
Establishments by Joseph Morris, General Counsel, Office of Personnel
Management (G.C. Exh. No. 2). Mr. Morris notes that in cases involving
adverse action arbitration awards which are not reviewable by the
Authority, the arbitrator cannot enforce the award, and "(r)efusal to
comply provides grounds for an unfair labor practice charge." /18/ For
the reasons outlined the motion to dismiss for want of jurisdiction is
denied.
The Respondent's motion to dismiss based upon an untimely filing of
the charge depends upon an initial determination of the finality of the
March 1, 1984 clarified award as the Authority has held that where there
has been no compliance the timeliness of a charge based upon a failure
to implement an arbitration award is determined from the date that the
award becomes final and binding. United States Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, supra, at note
15. /19/ The Authority has also made it clear that the language of
Section 7122(b) requires an agency to take actions required by an
arbitrator's award only after the award has become final and binding.
In the absence of a clear showing of finality there is no statutory
obligation (under Section 7122(b)) to comply with the award. U.S.
Soldiers' and Airmen's Home, Washington, D.C., 15 FLRA No. 26 (1984), 15
FLRA 139; United States Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, supra.
Because the removal action brought against Mr. Frontera arose as a
disciplinary action under 5 U.S.C. Section 7512, Mr. Frontera had a
choice, under Section 7121(e) of the Statute, to resolve his claims
through utilization of the negotiated grievance procedure or the
statutorily established Merit Systems Protection Board procedure set out
in 5 U.S.C. Section 7701. He elected to utilize the grievance procedure
and pursued the matter through the arbitration phase. As noted Section
7121(f) and Section 7703 do not provide for direct agency appeal of an
arbitrator's decision in such cases. Only the Director of OPM may
initiate an appeal.
Section 7703(b)(1) of the Statute provides:
(b)(1) Except as provided in paragraph (2) of this subsection,
a petition to review a final decision of the Board shall be filed
in the United States Court of Appeals for the Federal Circuit.
Notwithstanding any other provision of law, any petition for
review must be filed within 30 days after the date the petitioner
receives notice of the final order or decision of the Board.
The 30-day period referred to in Section 7703(b)(1) has been
considered by the Federal Circuit, and it has been held that Section
7703(d) first conditions OPM's appeal right upon OPM's prior
intervention in the arbitration proceeding. If OPM was not made a party
to the arbitration, OPM must first intervene and request reconsideration
of the arbitration award. Devine v. Nutt, 718 F.2d 1048 (1983), rev'd
sub nom. on other grounds Cornelius v. Nutt, 105 S. Ct. 2882 (1985);
Divine v. Sutermeister, 724 F.2d 1558 (1983). Devine v. Pastore, 732
F.2d 213 (1984); Devine v. Levin, 739 F.2d 1567 (1984).
Section 7703 does not provide a specific time for OPM to intervene
and request reconsideration of an arbitration award covered by Section
7121(f) and Section 7703. However, the Federal Circuit has held that
the time for filing a request for reconsideration "runs from the date
OPM receives notice of the decision of the MSPB or arbitrator, as the
case may be." Devine v. Sutermeister, supra, at 1562, note 4. This case
makes it clear that the failure of OPM to take appropriate action within
30 days of OPM's receipt of notice operates to extinguish OPM's right to
request intervention and reconsideration in the arbitration proceeding
and the right to appeal to the Federal Circuit as well.
At a minimum, the record establishes that OPM received notice of the
March 1, 1984 clarification award through Respondent's counsel, and that
OPM thereafter took no action to intervene in the arbitration proceeding
for the purpose of requesting reconsideration as a step toward appeal to
the Federal Circuit. A period of more than 30 days passed after OPM's
receipt of notice thus resulting in the extinguishment of OPM's right to
proceed further. /20/
Since the charge in this case was filed on August 27, 1984, it was
well within six-months of the date on which the clarified award became
final and binding, and within the six-month period of limitation
prescribed in Section 7118(a)(4) of the Statute. Accordingly,
Respondent's motion to dismiss based upon Section 7118(a)(4) is denied.
If the Respondent (through OPM) did in fact have a basis for an
appeal to the Federal Circuit, it was lost by the passage of time
consumed in the unfortunate choice of appeallate procedures. It is
entirely possible that Respondent's contentions, if brought to the
attention of the Federal Circuit, would have produced a different
result. However, such issues are not litigable in this proceeding.
/21/ The Authority has repeatedly held in a series of analogous cases,
that any contention that an aribtrator's award is deficient because it
is contrary to any law, rule or regulation must be made by invoking the
procedures established by Congress. /22/
It is clear from the record that the Respondent did not comply with
the March 1, 1984 clarified award after it became final and binding.
The Respondent did not return Mr. Frontera to his regular duties at FCI,
Ray Brook. This was admitted by the Respondent. The mere processing of
documents to make it appear that Mr. Frontera had been fully reinstated
was certainly not compliance with the March 1, 1984, arbitration award.
Respondent's repudiation of the obligation to reinstate Mr. Frontera was
total in nature, and was the direct cause of Mr. Frontera's resignation.
It constitutes a clear violation of Section 7122(b) of the Statute.
Accordingly, this conduct also constitutes an unfair labor practice
within the meaning of Sections 7116(a)(1) and (8) of the Statute. /23/
Having found that the Respondent violated Sections 7116(a)(1) and (8)
of the Statute, it is recommended that the Authority issue the following
Order:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the United States Department of Justice, Bureau of Prisons,
Washington, D.C., and Bureau of Prisons, Federal Correctional
Institution, Ray Brook, New York, shall:
1. Cease and desist from:
(a) Failing and refusing to implement the March 1, 1981
Clarification of Award issued in FMCS Case No. 82K/24082, by
failing and refusing to reinstate Richard Frontera to his regular
job as a Cook-Foreman at the Federal Correctional Institution, Ray
Brook, New York.
(b) In any like or related manner interfering with, restraining
or coercing employees in the exercise of their rights assured by
the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute.
(a) Comply with the March 1, 1984 Clarification of Award issued
in FMCS Case No. 82K/24082, by offering to reinstate Richard
Frontera to his regular job as a Cook-Foreman at the Federal
Correctional Institution, Ray Brook, New York, without prejudice
to his seniority or other rights or privileges.
(b) Make Richard Frontera whole, consistent with applicable
laws and regulations, for any loss of pay he may have suffered by
reason of his separation from Federal service brought about by
Respondent's unlawful conduct, and pay to him a sum equal to the
amount he would have earned or received from the date of his
separation to the effective date of the offer of reinstatement,
less any amount earned through other employment during this period
of time.
(c) Consistent with law and regulation, make Richard Frontera
whole for any monetary losses incurred as a result of Respondent's
assignment of Richard Frontera to the United States Penitenitary,
Lewisburg, Pennsylvania, and for which he has not otherwise been
reimbursed.
(d) Post at its Washington, D.C. and Ray Brook, New York
facilities, copies of the attached Notice on forms to be furnished
by the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the Director, Bureau of Prisons,
Washington, D.C., 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.
(e) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, Federal Labor
Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.
/s/ Louis Scalzo
LOUIS SCALZO
Administrative Law Judge
Dated: November 15, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) In view of this conclusion, the Authority finds it unnecessary to
pass upon whether the Respondent also violated section 7116(a)(5) of the
Statute and denies the General Counsel's exception to the Judge's
Decision in this regard.
(2) The Respondent, subsequent to the filing of its exceptions, filed
several requests that the Authority take notice of various decisions of
the Merit Systems Protection Board and the Federal Courts. These
requests have in each instance been vigorously opposed by the General
Counsel. While the Authority does not wish to discourage parties from
bringing to our attention relevant case law, citations to authority
which are cumulative or which seek only to supplement arguments already
made do not enhance the record. To the extent that the Respondent's
requests raise anything new, they have been considered.
(3) Counsel representing the General Counsel based the Section
7116(a)(8) violation upon alleged failure to comply with the provisions
of Section 7122(b) of the Statute. However, in a post-hearing motion
counsel representing the General Counsel moved to amend paragraph 17 of
the complaint so as to include alleged failure to comply with the
provisions of "5 U.S.C. 7121(f) and/or 5 U.S.C. 7121(b)(3)(C)," as a
basis for the Section 7116(a)(8) violation. The motion also requested
minor inconsequential amendments relating to Section 17(a) of the
complaint. In this regard, it was requested that the phrase, "Since on
or about March 1, 1984, and continuing to date, Respondent by its agent
and representatives have failed and continue to fail to reinstate
Richard Frontera . . . " be modified to allege, "Since on or about March
1, 1984, and continuing to date Respondent by its agents and
representatives has failed and continues to fail to reinstate Richard
Frontera . . . "
Section 2423.12(d) of the Regulations, 5 C.F.R. 2423.12(d), provides
in part: "A complaint may be amended upon such terms as may be deemed
just . . . at the hearing and until the case has been transmitted to the
Authority pursuant to Section 2423.26, upon motion by the Administrative
Law Judge designated to conduct the hearing . . . "
Counsel representing the Respondent interposed objection to the
motion to amend the complaint. Since the record does not indicate that
Respondent was given specific notice in the complaint or at the hearing,
that the General Counsel was relying upon Section 7121(f) or Section
7121(b)(3)(C) as basis for a Section 7116(a)(8) violation, and since the
parties did not otherwise litigate issues relating to this prosecutive
theory, it is determined that the motion to include these statutory
provisions in Paragraph 17 of the Complaint must be denied. Federal
Mediation and Conciliation Service, 9 FLRA No. 31 (1982), 9 FLRA 199;
Social Security Administration, 16 FLRA No. 148 (1984), 16 FLRA 1135.
However, the minor changes in terminology proposed in the quoted portion
of Section 17(a) of the complaint do not alter the substantive meaning
of the complaint. The motion is granted insofar as it relates to these
changes.
(4) Counsel representing the General Counsel moved to correct errors
in the hearing transcript. Under Authority reflected in 5 C.F.R.
Section 2423.19(r), the proposed corrections are approved.
(5) Section 7121(f) provides: "In matters covered under sections
4303 and 7512 of this title which have been raised under the negotiated
grievance procedure in accordance with this section, section 7703 of
this title pertaining to judicial review shall apply to the award of an
arbitrator in the same manner and under the same conditions as if the
matter had been decided by the (Merit Systems Protection) Board . . . "
Since October 1, 1982, the United States Court of Appeals for the
Federal Circuit has had, under the provisions of the Federal Courts
Improvement Act of 1982, 96 Stat. 25, exclusive jurisdiction to hear
appeals from final orders or final decisions of the Merit Systems
Protection Board. Section 7703 was amended by the Act to reflect this
jurisdictional change.
Section 7703(d) provides: "The Director of the Office of Personnel
Management may obtain review of any final order or decision of the Board
by filing a petition for judicial review in the United States Court of
Appeals for the Federal Circuit if the Director determines, in his
discretion, that the Board erred in interpreting a civil service law,
rule, or regulation affecting personnel management and that the Board's
decision will have a substantial impact on a civil service law, rule,
regulation, or policy directive. If the Director did not intervene in a
matter before the Board, the Director may not petition for review of a
Board decision under this section unless the Director first petitions
the Board for a reconsideration of its decision, and such petition is
denied . . . The granting of the petition for judicial review shall be
at the discretion of the Court of Appeals." Section 7703 makes no
provision for direct agency appeal to the Federal Circuit.
(6) On January 9, 1984, 24 days after the award, Mr. Frontera learned
of Respondent's intent to relocate him and determined that he would
oppose a transfer (Tr. 156-158). The fact that the parties faced
elements of uncertainty in the meaning to be accorded the December 16,
1982 award was acknowledged by counsel representing the General Counsel
(Tr. 36-37, 143-144).
(7) The record reflects no issue concerning the job classification or
grade level assigned in connection with his reinstatement to federal
employment (Tr. 190-192).
(8) Frontera did report for duty at Lewisburg as ordered (Tr. 160,
Jt. Exh. No. 10).
(9) On July 26, 1985, after the close of the hearing, and prior to
the filing of post-hearing briefs, counsel representing the Respondent
requested that official notice be taken of portions of the "U.S. Postal
Service Handbook M-79, Mailgram Operating Procedures." The request was
designed to provide additional support for a factual finding that the
Union's request for clarification was not in fact received by
Respondent's representatives.
During the hearing the Respondent had ample opportunity to develop
the record relating to this factual issue, but did not introduce
evidence relating to provisions of the Handbook. The record reflects no
explanation concerning the specific origin or date of this publication,
nor any showing that the provisions of the Handbook were applicable to
the mailgram sent to the arbitrator by the Union. Furthermore, the
record reflects no reason to justify the Respondent's failure to
introduce this material at the hearing. Admission at this late date
would necessarily operate to deprive the General Counsel and the
Charging Party of an opportunity to object or to interpose rebuttal.
For the reasons outlined the request is denied.
Counsel representing the Respondent also requested that official
notice be taken of the Regional Director's dismissal letter, and the
General Counsel's affirmance of dismissal in Case No. 3-CA-40249. Also
included was a request that an arbitrator's clarification issued in Case
No. 3-CA-40249, be officially noted in conjunction with the dismissal
letters issued in Case No. 3-CA-40249. These requests are granted
inasmuch as the documents may be received for appropriate consideration
in resolving questions of law, as distinguished from questions of fact.
However, it is noted that principles expressed in these documents have
no precedential value with respect to legal issues posed in this case.
(10) The Respondent admits that the award as clarified has not been
implemented by the Respondent (Jt. Exh. No. 26; Tr. 75-76, 80-81).
(11) The Respondent argued that the March 1, 1984 clarified award
interfered with management's right to assign employees, that it
interfered with management's right to establish and carry out internal
security practices, and that the arbitrator exceeded his authority in
issuing the clarified award.
(12) 15 FLRA No. 38 (1984), 15 FLRA 204.
(13) The motion for reconsideration was amended on July 16, 1984 (Jt.
Exh. No. 21).
(14) A third motion to dismiss made by Respondent's counsel at the
opening of the hearing rested on the theory that the complaint failed to
allege an unfair labor practice within the meaning of the Statute. The
rationale underlying this motion rests on the premise that Mr. Frontera
could not, in the Respondent's judgment, be entitled to reinstatement to
the position he formerly held at FCI, Ray Brook in the absence of a new
unfair labor practice charge alleging that his resignation from USP,
Lewisburg was coerced (Tr. 9-10). Inasmuch as this motion is vague and
unclear at best, it is denied. Moreover, the issue of whether or not a
particular remedy would be appropriate in this case would have no
bearing on the question of whether the complaint reflects compliance
with the provisions of 5 C.F.R. Section 2423.12(b).
(15) Section 7122(b) requires that "(a)n agency shall take the
actions required by an arbitrator's final award . . . "
(16) The post-hearing brief filed on behalf of the General Counsel
notes that this issue is currently before the Authority in U.S. Army,
Adjutant General Publications Center, St. Louis, Missouri, Case No.
7-CA-40064, a case stipulated directly to the Authority (G.C. Brief at
page 6). See "Judicial Review of Adverse Action Arbitration Awards,"
Federal Labor Relations Reporter (Highlights), December, 1983, 83 FLRR
No. 22; and "Adverse Action Arbitration in the Federal Sector: A
Streamlining of the Appellate Procedures?", Federal Labor Relations
Reporter (Highlights), January 1984, 83 FLRR No. 24, for discussion of
procedural problems posed by Section 7121(f) arbitration awards.
(17) Respondent argues that should the Authority seek enforcement of
an order to comply with an arbitral award, it would have to petition a
Court of Appeals other than the Federal Circuit. However, there is no
statutory or other inconsistency merely because the Federal Circuit has
appellate jurisdiction under Section 7703, while enforcement under
Section 7123 of the Statute would involve another Court. The Federal
Circuit would have jurisdiction to review the arbitrator's findings.
Neither the Authority nor Courts of Appeal reviewing Authority unfair
labor practice decisions would be reviewing or relitigating underlying
arbitration awards involved in unfair labor practice proceedings
designed to enforce such awards. United States Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA No. 27
(1984), 15 FLRA 151, aff'd sub nom. Dept. of the Air Force, et al. v.
FLRA, No. 84-3695 (6th Cir., Oct. 25, 1985); Department of Defense,
Department of the Navy, United States Marine Corps, United States Marine
Corps Air Station, Cherry Point, North Carolina, 15 FLRA No. 137 (1984),
15 FLRA 686; Veterans Administration Medical Center, Phoenix, Arizona,
15 FLRA No. 138 (1984), 15 FLRA 706; Department of Health and Human
Services, Region II, 15 FLRA No. 139 (1984), 15 FLRA 710; Department of
Justice, U.S. Immigration and Naturalization Service, Washington, D.C.,
16 FLRA No. 118 (1984), 16 FLRA 840; Department of the Navy, Naval
Submarine Base, New London, Connecticut, 19 FLRA No. 31 (1985), 19 FLRA
250.
Given the different functions of the Federal Circuit under Section
7703 and other Circuits under Section 7123 of the Statute, Respondent's
concern with conformity of court decisions is misplaced.
The fact that Mr. Frontera theoretically might conceivably have other
possible enforcement procedures available to him would not necessarily
operate to divest the Authority of unfair labor practice jurisdiction.
The possible existence of an alternative procedure, without more, does
not mean that the unfair labor practice procedure is unavailable to
compel compliance with final and binding Section 7121(f) arbitration
awards.
(18) The memorandum was designed for use by agencies "for
informational and instructional purposes."
(19) There is no reason for drawing the conclusion that a refusal to
comply with an arbitration award constitutes a continuing unfair labor
practice so as to extend the six month period of limitation for an
indefinite period in the event of continuing non-compliance.
(20) As noted the exact date of Mr. Owen's telephone conversation
with OPM about the clarified award cannot be determined from the record.
However, it would have had to occur between March 1, 1984, the date of
the clarified award, and March 27, 1984, the date on which the
Respondent filed exceptions to the award.
It is noted that a copy of the complaint filed in this case was
mailed to OPM on March 12, 1985 (G.C. Exh. No. 1(G)). Thus, even
assuming the absence of prior notice to OPM, the March 1, 1984 clarified
award would have become final and binding prior to the date of the
hearing.
It is somewhat unusual that the record does not reflect that the
Respondent ever mailed a copy of either award to OPM in light of the
Respondent's obligation to do so under the provisions of FPM Letter
711-160 dated July 13, 1981. Instead, Respondent made a special effort
to establish that the Respondent did not seek OPM intervention. It was
only under close questioning that Respondent acknowledged a telephone
conversation with an OPM representative concerning the March 1, 1984
award. As a whole, the record tends to suggest an effort on the part of
Respondent to obfuscate this factual issue, and to avoid a final and
binding effect by creating a record tending to indicate the absence of
communication between the Respondent and OPM, and the absence of notice
on the part of OPM. This tendency was noted in counsel's responses to
questions on the subject, and especially by statements made on page 54
of Respondent's post-hearing brief.
(21) A number of issues may be mentioned in this context. For the
most part these are the same matters which were mistakenly brought to
the attention of the Authority, and then again belatedly and mistakenly
raised in this unfair labor practice proceeding.
(22) See relevant Authority precedent cited in note 15, supra.
(23) In view of this conclusion it is unnecessary to pass upon
whether such conduct was also violative of Section 7116(a)(5) of the
Statute. General Services Administration, Washington, D.C., 18 FLRA No.
52 (1985), 18 FLRA 395; Veterans Administration Medical Center,
Phoenix, Arizona (1984), supra at note 15; Department of Health and
Human Services, Region II (1984), supra at note 15.
APPENDIX
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT fail and refuse to implement the March 1, 1984
Clarification of Award issued in FMCS Case No. 82K/24082, by failing and
refusing to reinstate Richard Frontera to his regular job as a
Cook-Foreman at the Federal Correctional Institution, Ray Brook, New
York.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL comply with the March 1, 1984 Clarification of Award issued
in FMCS Case No. 82K/24082, by offering to reinstate Richard Frontera to
his regular job as a Cook-Foreman at the Federal Correctional
Institution, Ray Brook, New York, without prejudice to his seniority or
other rights or privileges.
WE WILL make Richard Frontera whole, consistent with applicable laws
and regulations, for any loss of pay he may have suffered by reason of
his separation brought about by Respondent's unlawful conduct, and pay
to him a sum equal to the amount he would have earned or received from
the date of his separation to the effective date of the offer of
reinstatement less any amount earned through other employment during
this period of time.
WE WILL, consistent with law and regulation, make Richard Frontera
whole for any monetary losses incurred as a result of Respondent's
assignment of Richard Frontera to the United States Penitentiary,
Lewisburg, Pennsylvania, and for which he has not otherwise been
reimbursed.
(Agency or Activity)
Dated:
By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region I,
whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts
02116, and whose telephone number is: (617) 223-0920.