Department of Health and Human Services, Region II and American Federation of Government Employees Local 1760 (Authority decision, August 28, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

An arbitrator awarded a Social Security Administration employee a promotion and retroactive pay. The HHS Region II personnel office refused to process the papers needed to implement the award, arguing that compliance would violate the Back Pay Act. No exceptions to the award had been filed. On the stipulated record, the Authority held that the award was final and binding and that the personnel office could not raise its legal objection for the first time in an unfair labor practice case. It ordered HHS to process the papers and post a notice.

Decision snapshot

• Authority: Finality of arbitration awards under 5 U.S.C. § 7122; violation under § 7116(a)(1) and (8).
• Outcome: Violation found; award implementation and notice posting ordered.
• Key point: A party that does not timely challenge an arbitration award must comply once it becomes final and binding.

Full text (FLRA public release)

[ v15 p710 ]

15:0710(139)CA

The decision of the Authority follows:

15 FLRA No. 139

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, REGION II
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1760, AFL-CIO
Charging Party

Case No. 2-CA-20354

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Office Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record in this case, including the parties' stipulation of facts, accompanying exhibits, and the parties' contentions, the Authority finds:

The complaint alleges that the Respondent, Department of Health and Human Services, Region II, violated section 7116(a)(1), (5) and (8) of the Statute by the action of its Personnel Office in failing to process the promotion and request for retroactive backpay for an employee of the Social Security Administration, Office of Hearings and Appeals (OHA), which the latter had sought pursuant to the outcome of an arbitration award rendered by Arbitrator Sidney J. Kronish on January 25, 1982. /1/ The Respondent refused to implement OHA's request based on its contention that compliance with the arbitrator's award would be unlawful as it would be contrary to the requirements of the Back Pay Act. Exceptions to the arbitrator's award were never filed pursuant to the provisions of section 7122(a) of the Statute.

The relevant issue and supporting arguments raised by the parties are substantially identical to those involved in Department of Defense, Department of the Navy, United States Marine Corps Air Station, Cherry Point, North Carolina, 15 FLRA No. 137 (1984), wherein the Authority, after denying Respondent's defense that compliance would require an unlawful act, concluded 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. In so concluding the Authority noted that "any contention that an arbitrator's award is deficient . . . must be made by invoking the procedures established by Congress in section 7122(a) of the Statute, and where exceptions are not filed pursuant thereto, the award becomes 'final and binding.'" Pursuant to the above decision and for the reasons set forth by the Authority therein, the Authority concludes that the Respondent herein violated section 7116(a)(1) and (8) /2/ of the Statute by preventing the Office of Hearings and Appeals from complying with an arbitrator's award as required by section 7122 of the Statute. /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 Health and Human Services, Region II, shall:

1. Cease and desist from:

(a) Interfering with the efforts of the Social Security Administration, Office of Hearings and Appeals, Region II to comply with Arbitrator Sidney J. Kronish's January 25, 1982 arbitration award by failing to process the personnel papers submitted to the Regional Personnel Office in an attempt to comply with the award.

(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) Process the personnel papers submitted by the Social Security Administration, Office of Hearings and Appeals, Region II so as to comply with Arbitrator Sidney J. Kronish's January 25, 1982 arbitration award.

(b) Post at its Social Security Administration, Office of Hearings and Appeals, Region II 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 Regional Personnel Officer, or his designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including 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 II, 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 interfere with the efforts of the Social Security Administration, Office of Hearings and Appeals, Region II to comply with Arbitrator Sidney J. Kronish's January 25, 1982 arbitration award by failing to process the personnel papers submitted to the Regional Personnel Office in an attempt to comply with the award.

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 process the personnel papers submitted by the Social Security Administration, Office of Hearings and Appeals, Region II so as to comply with Arbitrator Sidney J. Kronish's January 25, 1982 arbitration award. (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, Region II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 24-102, New York, New York 10278 and whose telephone number is: (212) 264-4934.

--------------- FOOTNOTES$ ---------------

/1/ The Regional Director dismissed the allegations in the charge that the Social Security Administration, Office of Hearings and Appeals, committed an unfair labor practice by failing to comply with Arbitrator Kronish's award, concluding that whatever action was necessary to seek implementation of the award had been taken.

/2/ The Authority has previously held that the acts and conduct of higher level agency management may constitute an unfair labor practice where such conduct prevents agency management at the level of exclusive recognition from fulfilling its bargaining obligation under the Statute. See Department of the Interior, Water and Power Resources Services, Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982). In the same manner, the acts and conduct of higher level agency management may constitute an unfair labor practice where such conduct prevents agency management at the level of exclusive recognition from fulfilling its obligations pursuant to section 7121 of the Statute in violation of the requirements of section 7122 of the Statute.

/3/ In view of this conclusion, the Authority finds it unnecessary to determine whether the Respondent's conduct was also in violation of section 7116(a)(5) of the Statute.