U.S. Soldiers' and Airmen's Home and AFGE Local 3090 (Authority decision, April 17, 1986)

Final FLRA decision. This supplemental order resolves the unfair labor practice proceeding after a federal appeals court set aside the Authority's earlier dismissal. An aggrieved person may seek judicial review of a final Authority order involving an unfair labor practice by petitioning 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 order unless the court orders a stay under § 7123(c).

Plain-English summary

The Soldiers' and Airmen's Home refused to implement an arbitrator's award while exceptions to the award were pending. The Authority had earlier dismissed the union's unfair labor practice complaint, but a federal appeals court set that decision aside. The court held that the agency had to comply with the award because it had not requested a stay under the Authority's rules. Accepting that ruling as the law of the case, the Authority ordered the agency to comply with the award to the extent it had not already done so and post employee notices.

Decision snapshot

• Authority: Award compliance under 5 U.S.C. § 7122(b) and stay rule at 5 C.F.R. § 2429.8.
• Outcome: Supplemental remedial order issued after appellate reversal of the earlier dismissal.
• Key point: Filing exceptions did not excuse compliance with the arbitration award when the agency had not requested a stay.

Full text (FLRA public release)

[ v21 p335 ]

21:0335(44)CA

The decision of the Authority follows:

21 FLRA No. 44

U.S. SOLIDERS' AND AIRMEN'S HOME
WASHINGTON, D.C.
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3090, AFL-CIO
Charging Party

Case No. 3-CA-20561
(15 FLRA No. 26)

SUPPLEMENTAL DECISION AND ORDER

On June 26, 1984, the Authority issued its Decision and Order in the above-entitled proceeding in which it found that the Respondent had not failed and refused to comply with the provisions of section 7122(b) of the Federal Service Labor-Management Relations Statute /1/ and therefore had not violated section 7116(a)(1) and (8) of the Statute. /2/ U.S. Soldiers' and Airmen's Home, Washington, D.C., 15 FLRA No. 26 (1984).

Thereafter, on November 22, 1985, the U.S. Court of Appeals for the District of Columbia Circuit set aside the Authority's Decision and held that the Respondent was required to comply with the terms of an arbitrator's award, notwithstanding that timely exceptions had been filed with the Authority pursuant to section 7122(b) of the Statute, because the Respondent had failed to request a stay of the arbitrator's award as required by section 2429.8 of the Authority's Rules and Regulations (codified in 5 C.F.R. Section 2429.8). American Federation of Government Employees, AFL-CIO, Local 3090 v. FLRA, 777 F.2d 751 (D.C. Cir. 1985).

The Authority accepts the court's opinion as the law of the case and, consistent with that opinion, shall issue the following remedial order:

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 U.S. Soldiers' and Airmen's Home, Washington, D.C. shall:

1. Cease and desist from:

(a) Failing to comply with the provisions of section 7122(b) of the Federal Service Labor-Management Relations Statute by refusing to implement an arbitrator's award notwithstanding that no request for a stay of the arbitration award had been filed pursuant to section 2429.8 of the Authority's Rules and Regulations.

(b) In any like or related manner interfering with, restraining or coercing its 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 Statute:

(a) Comply fully with the award of Arbitrator Nicholas H. Zumas dated March 22, 1982, to the extent that such compliance has not been previously effectuated.

(b) Post at its facility where employees in the bargaining unit are located 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 an appropriate official of the Respondent, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure 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 III, 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. April 17, 1986.

/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

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

(1) Section 7122(b) provides:

Section 7122. Exceptions to arbitral awards

. . . . . . .

(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 the award is served on the party, 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).

(2) Section 7116(a)(1) and (8) provides:

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;

. . . . . . .

(8) to otherwise fail or refuse to comply with any provision of this chapter(.)

APPENDIX

NOTICE TO ALL EMPLOYEES

PURSUANT TO A SUPPLEMENTAL 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 to comply with the provisions of section 7122(b) of the Federal Service Labor-Management Relations Statute by refusing to implement an arbitrator's award notwithstanding that no request for a stay of the arbitrator's award had been filed pursuant to section 2429.8 of the Authority's Rules and Regulations.

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 Federal Service Labor-Management Relations Statute.

WE WILL comply fully with the award of Arbitrator Nicholas H. Zumas dated March 22, 1982, to the extent that such compliance has not been previously effectuated. (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 III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., Room 700, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8500.