775 F.2d 727 (6th Cir. 1985), 84-3695, Department of Air Force v. Federal Labor Relations Authority

Docket Nº:84-3695.
Citation:775 F.2d 727
Party Name:DEPARTMENT OF the AIR FORCE, et al., Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, American Federation of Government Employees, Amicus Curiae on Behalf of Respondent.
Case Date:October 25, 1985
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 727

775 F.2d 727 (6th Cir. 1985)

DEPARTMENT OF the AIR FORCE, et al., Petitioner,

v.

FEDERAL LABOR RELATIONS AUTHORITY, Respondent,

American Federation of Government Employees, Amicus Curiae

on Behalf of Respondent.

No. 84-3695.

United States Court of Appeals, Sixth Circuit

October 25, 1985

Argued Aug. 28, 1985.

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[Copyrighted Material Omitted]

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William Kanter, Lead Counsel, Mark B. Stern, argued, Civ. Div., Dept. of Justice, Washington, D.C., for petitioner.

Mitchell J. Notis, Deputy Gen. Counsel, Mark D. Roth, Gen. Counsel, American Federation of Government Employees, AFL-CIO, Washington, D.C., for American Federation of Government Employees, amicus curiae in support of respondent FLRA.

Ruth Peters, argued, Federal Labor Relations Authority, William R. Tobey, Lead Counsel, Washington, D.C., for respondent.

Before MERRITT and CONTIE, Circuit Judges, and RUBIN, Chief District Judge. [*]

CONTIE, Circuit Judge.

The United States Department of the Air Force, Air Force Logistics Command (AFLC), seeks review of a decision and order of the Federal Labor Relations Authority (FLRA or Authority) which found that the AFLC had committed an unfair labor practice in violation of Secs. 7116(a)(1), (6) and (8) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Sec. 7101 et seq. The FLRA requests enforcement of its order requiring the AFLC to implement the terms of an interest arbitration award. 1 Judicial review of the order is taken pursuant to 5 U.S.C. Secs. 7123(a) and (b). For the reasons that follow, we affirm the Authority's findings and order.

I.

The Air Force Logistics Command and the American Federation of Government Employees (AFGE or Union) bargained to impasse in 1978. In October, 1978, the parties invoked the assistance of the Federal Mediation and Conciliation Service, which suggested that the parties submit their controversies to an arbitration panel rather than submitting the impasse issues to the Federal Services Impasse Panel (FSIP). The parties entered into a written agreement providing for a tripartite panel to arbitrate the disputed issues, and on October 12, 1978, the FSIP authorized the use of the outside interest arbitration. 2 The agreement provided in part:

5. The arbitration panel shall decide only issues which are negotiable. In the event of a dispute over negotiability, the arbitration panel shall not presently decide such issue, but shall retain jurisdiction pending determination of the negotiability of that issue.

6. The arbitration panel shall have sole discretion to decide questions of procedure.

* * *

9. The decision of the arbitration panel shall be final and binding on the parties, and further rights of appeal are hereby waived except that all articles must be in conformance with law and Executive Order.

The arbitration panel established by the agreement was to be composed of a member

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selected by each of the parties and a neutral chairman selected jointly by the parties.

In November, 1978, the parties met with the chairman of the panel. During those meetings, a dispute arose concerning how the panel would treat matters which the AFLC declared to be nonnegotiable but which were later determined to be negotiable. 3 The AFLC proposed that there should only be one panel hearing on such issues, held after all the determinations of negotiability had been made, instead of multiple hearings held after each determination. The AFLC set out what it believed to be the parties' agreement regarding the dispute in a letter to the chairman of the panel.

Subsequently, the parties settled their differences on all issues which they had agreed were negotiable. On December 29, 1978, the AFGE requested a negotiability determination by the Department of Defense concerning the issues which the AFLC had declared to be nonnegotiable. The Department of Defense determined that some of the issues were negotiable, and the Union requested that the arbitration panel schedule a hearing to resolve the merits of those issues. 4 The AFLC opposed the requested hearing as being contrary to the alleged agreement to await the final determination of negotiability of all issues before holding any hearings. On October 24, 1979, the arbitration panel rejected the AFLC's claim and granted the Union's request for a hearing. The panel found that it had jurisdiction to hear "those issues found by the Department of Defense to be negotiable" prior to the final determination of negotiability of all issues. The panel stated that the parties had not reached any agreement to the contrary. The panel scheduled the hearing on the merits of the negotiable matters for December 3, 1979 and then rescheduled it for February 4, 1980.

On November 14, 1979, the AFLC notified the panel chairman that because of the panel's decision to hold the hearing the AFLC was rescinding the arbitration agreement. The AFGE then requested the FSIP to reaffirm the panel's authority to hold the hearings. On December 18, 1979 the FSIP denied the request, stating that the case was closed by the FSIP on October 12, 1978 when it authorized the outside arbitration.

On January 31, 1980, the Authority issued its decision on the remaining negotiability issues. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603 (1980). 5 The AFLC had previously reasserted in a January 28 letter to the arbitration panel that it would neither participate in the February panel hearing, nor consider itself bound by any decisions made at the hearing. Nonetheless, the hearing was held as scheduled without AFLC participation, and the arbitration panel issued its award on May 20, 1980. No exceptions to that decision were filed with the FLRA. 6

On December 1, 1980, the Union filed an unfair labor practice action based on the AFLC's failure to implement the arbitration

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award. Following an administrative hearing, the presiding administrative law judge found that the AFLC had committed an unfair labor practice by failing to implement the award. The FLRA subsequently adopted the findings of the ALJ, with some modifications not at issue in this appeal. 7

The Authority agreed with the ALJ that the refusal to implement the arbitration award constituted a violation of Secs. 7116(a)(1), (6) and (8) of the Federal Service Labor-Management Relations Statute. 8 The FLRA also agreed with the ALJ that the charge had been timely filed within six months of the alleged conduct as required by 5 U.S.C. Sec. 7118(a)(4)(A). This conclusion was based on the findings that a failure to implement an award could not constitute an unfair labor practice until the award is final and binding...

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