[ v57 p392 ]
57 FLRA No. 71
DEPARTMENT OF THE AIR FORCE
MARCH AIR RESERVE BASE, CALIFORNIA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3854, AFL-CIO
(Charging Party)
SF-CA-00037
_____
DECISION AND ORDER
July 6, 2001
_____
Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members.
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by changing conditions of employment of bargaining unit employees without providing the Charging Party an opportunity to bargain to the extent required by law. The change occurred when the Respondent implemented a court-approved settlement of a discrimination complaint that affected conditions of employment of bargaining unit members. The Judge decided the case on a stipulated record and concluded that the Respondent had violated the Statute as alleged.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended order to the extent consistent with this decision.
II. Background and the Judge's Decision
A. Background
The facts are fully set forth in the Judge's decision and are only briefly summarized here. [ v57 p393 ]
The Charging Party is the exclusive representative of a unit of the Respondent's employees. The bargaining unit includes, among others, employees within the Civil Engineering Construction Management section (CECM) of the 452nd Civil Engineering Squadron. As relevant here, the CECM employed one GS-9 Construction Representative and three GS-8 Construction Inspectors.
In 1993, a bargaining unit employee, not then employed in CECM, filed a formal discrimination complaint alleging that the Respondent had discriminated against him on the basis of his race and color, and had engaged in reprisals against him based on these complaints. In 1996, the Equal Employment Opportunity Commission (EEOC) found that the Respondent had unlawfully discriminated against the employee and ordered the Respondent to continue processing the employee's complaint in order to determine the appropriate remedy. After the Respondent and the employee were unable to agree on an acceptable remedy, the employee filed a civil action in federal district court.
Under the auspices of the district court, the employee and the Respondent entered into a settlement agreement. The agreement provided that the Respondent would promote or transfer the employee to a GS-9 Construction Representative position in the CECM, pay him $15,000, credit him with 317 additional hours of annual leave, and provide him with both on-the-job and technical training. The parties stipulated that the terms of the settlement agreement had an adverse impact on CECM bargaining unit employees. The parties also stipulated that the Respondent failed to afford the Charging Party either notice of the terms of the settlement agreement or an opportunity to bargain over appropriate arrangements and procedures relating to the agreement's implementation.
B. Judge's Decision
The Judge began by clarifying two matters relating to the issues raised in the case. First, contrary to the Respondent's suggestions, the Judge found that the case did not pose the questions decided in Luke Air Force Base, Ariz., 54 FLRA 716 (1998)(Luke AFB), rev'd, 208 F.3d 221 (9th Cir. 1999) (Table), cert. denied, 121 S. Ct. 60 (2000) and similar cases. The Judge stated that Luke AFB concerned only the question of whether a union has a right under § 7114(a)(2)(A) of the Statute to attend a discussion between an agency and a bargaining unit employee concerning the settlement of a discrimination complaint. The Judge noted the instant case did not raise that issue, but instead addressed the Respondent's refusal to bargain with the Charging Party concerning changes in conditions of employment resulting from the settlement agreement. Second, citing § 7106(b)(2) and (3) of the Statute, the Judge stated that the case involved the issue of implementation bargaining, not whether the Respondent was required to bargain with the Charging Party over the substance of the settlement agreement.
Turning to the merits, the Judge held that the Respondent was obligated to bargain over the impact and implementation of the settlement agreement. Relying on the parties' stipulations, the Judge found that the settlement agreement affected the conditions of employment of bargaining unit members, and did so in a manner that was more than de minimus. In these circumstances, the Judge concluded that the Respondent was obligated to notify the Charging Party of any changes resulting from the settlement, and to bargain over the procedures and arrangements necessary to implement the agreement.
The Judge relied in this connection on United States Gov't Printing Office, 23 FLRA 35 (1986)(GPO) and Nuclear Regulatory Comm'n, 29 FLRA 660 (1987)(NRC). In those cases, the Authority stated in dictum that if the adjustment of a discrimination complaint resulted in a change in unit employees' conditions of employment, the agency would have an obligation under the Statute to give prompt notice of that change to the exclusive representative and provide it with an opportunity to bargain. The Judge found the principle underlying this dictum persuasive and fully consistent with the Authority's precedent concerning implementation bargaining. Consequently, the Judge held that the Respondent's admitted refusal to give notice and provide a bargaining opportunity constituted a violation of § 7116(a)(1) and (5) of the Statute.
The Judge also discussed and rejected the Respondent's defenses. The Judge found the Respondent's claim that the Authority lacked power to order negotiations over a court-approved settlement agreement misplaced. The Judge pointed out in this regard that the ULP proceeding did not place in issue the agreement's terms in any way. The Judge held that the complaint concerned only the Respondent's failure to bargain over the impact and implementation of the settlement agreement.
The Judge also rejected the Respondent's claim that if federal agencies were required to negotiate with unions every time a court or agency judgment affected employees, the result would be "inefficient and ineffective." Decision at 13. Noting that there may be some inefficiencies inherent in such bargaining, the Judge [ v57 p394 ] held nevertheless that there was no legal precedent to support the argument.
The Judge recommended a prospective bargaining order relating to post-implementation issues as the appropriate remedy. The Judge noted in this regard that the General Counsel stipulated that a status quo ante bargaining order was not appropriate. The Judge also recommended a cease and desist order and a posting.
III. Positions of the Parties
A. The Respondent's Exceptions
The Respondent excepts to the Judge's decision on four grounds.
First, the Respondent contends that there is no obligation to bargain over appropriate arrangements and procedures to be used in implementing the court's decree. In this regard, the Respondent asserts that the Statute does not explicitly create an obligation to bargain over the implementation of court orders. According to the Respondent, the Judge erred by inferring from dicta in Authority precedent that such an obligation exists. In addition, the Respondent argues that no such obligation can be found in § 7106 of the Statute.
Second, the Respondent argues that the Authority lacks jurisdiction to order implementation bargaining in this case because the Statute grants the Authority no power over federal district courts. The Respondent asserts in this regard that where the Statute grants the Authority the power to oversee proceedings in another forum, it does so explicitly, noting, for example, that the Statute explicitly grants the Authority the power to review arbitration awards. In addition, the Respondent contends that the Civil Rights Act of 1991 (42 U.S.C. § 2000e-2(n)) vests exclusive jurisdiction over challenges to consent decrees and court judgments in the federal district courts. Finally, the Respondent contends that any power the Authority might have over district court judgments would violate the constitutional principle of separation of powers. The Respondent states that requiring bargaining over the impact of the court decree would be an act of "Executive arrogance." Exceptions at 27 (citing Charter Med. Corp. v. Heckler, 604 F. Supp. 638 (M.D. Ga. 1985) (Charter Med. Corp.)).
Third, and citing § 7101(b) of the Statute, the Respondent argues that the Judge erred in finding that bargaining over the implementation of judgments would not have an adverse impact on the efficiency of the federal service. The Respondent specifically contends that: 1) the issuing court would object to any delay in implementation resulting from bargaining; 2) delays in implementation would be prejudicial to the complainant's rights; and 3) the Judge's decision is applicable to decrees resulting from contested adjudications as well as decrees adopting settlements. Further, the Respondent notes that in this case, the Charging Party's president, who objected to the settlement agreement, used the Judge's recommended decision to criticize the Department of Justice's representation of the Respondent in the court proceeding. According to the Respondent, "[a]n effective and efficient Government is not promoted when an [adjudicatory] body such as the Authority, provides fodder for attacking the [Department of Justice]." Exceptions at 32.
Fourth, the Respondent contends, contrary to the Judge, that this case implicates the same issues as those addressed in Luke AFB and other cases. In Luke AFB, the Authority applied the formal discussion provisions of the Statute, § 7114(a)(2)(A), to a settlement conference concerning a discrimination complaint filed pursuant to EEOC procedures. Luke AFB was reversed by the Ninth Circuit. Luke Air Force Base, Ariz. v. FLRA, 208 F.3d 221 (9th Cir. 1999). Further, the Respondent characterizes the instant case as "the latest in a line of cases in which the Authority has attempted to assert jurisdiction over [discrimination complaints]," and states that such attempts "have been uniformly rejected by the courts." Exceptions at 33. In addition, the Respondent contends that the Authority has demonstrated a "cavalier attitude, if not downright hostility, towards protecting the interests of minorities and women where it involves any countervailing union interests." Id. at 34. Citing Dep't of the Navy, Naval Facilities Eng'g Command, W. Div., San Bruno, Cal., 45 FLRA 138 (1992) (NFEC, San Bruno) and Dep't of the Air Force, Grissom Air Force Base, Ind., 51 FLRA 7 (1995) (Grissom AFB), the Respondent contends that the Authority has found that racist and sexist language is "acceptable" and protected by the Statute. Exceptions at 34. Further, the Respondent claims that the Authority has held that it is an unfair labor practice for an agency to investigate allegations of discriminatory behavior by union officials (citing U.S. Dep't of Veterans Affairs, 56 FLRA 696 (2000)).
B. General Counsel's Opposition
Initially, the General Counsel notes that the Respondent stipulated that implementing the settlement agreement adversely affected bargaining unit employees. According to the General Counsel, the Judge properly applied Authority precedent.
In addition, the General Counsel contends generally that the Respondent's exceptions are without merit [ v57 p395 ] because they relate to bargaining over the substantive aspects of the court order. The General Counsel points out that the only bargaining obligation recognized by the Judge was an obligation to bargain matters related to the impact and implementation of the settlement decree.
Finally, the General Counsel asserts that this case does not implicate the decision in Luke AFB because that case concerned formal discussion rights under § 7114(a)(2)(A), a matter not at issue in the instant case.
IV. Analysis and Conclusions
A. The Respondent Was Obligated to Bargain over the Impact and Implementation of Changes Resulting from a Court-approved Settlement of a Discrimination Complaint
1. General Principles
It is well established that when implementing a change in conditions of employment affecting bargaining unit employees, an agency is required to provide the exclusive representative with notice of, and an opportunity to bargain over, those aspects of the change that are within the duty to bargain. E.g., Fed. Bureau of Prisons, Fed. Corr. Inst., Bastrop, Tex., 55 FLRA 848, 852 (1999) (FCI Bastrop). This proposition is grounded in the Statute, the Statute's legislative history and analogous private sector practice.
The Authority has held that an agency's obligation to provide the exclusive representative with notice of changes and an opportunity to bargain is implicit in §§ 7103(a)(12) and 7114(a)(1) of the Statute. See Dep't of the Air Force, Scott Air Force Base, Ill. 5 FLRA 9, 9-11 (1981) (Scott AFB). The Authority found further support in the Statute's legislative history. Id. Commenting on the Senate version of what would become section 7114(a)(1) of the Statute, the Senate Committee on Governmental Affairs stated that "[w]here agency management proposes to change established personnel policies, the exclusive representative must be given notice of the proposed changes and an opportunity to negotiate over such proposals to the extent they are negotiable." S. Rep. No. 95-969, at 104 (1978), reprinted in Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, (Comm. Print 1979) 96th Cong., 1st Sess. (1979) Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, 764. The Authority has also noted that this principle is firmly established in the private sector as well. See United States Immigration and Naturalization Serv., Washington, D.C., 55 FLRA 69, 72 (1999) (citing NLRB v. Katz, 369 U.S. 736 (1962); and Hardin, Developing Labor Law 596-601 (3d Ed. Supp. 1996).
Nothing in the Statute or the Authority's precedent provides an exception to this general rule based on an agency's reasons or motivations for implementing a change in conditions of employment. However, some aspects of an agency's duty to bargain over changes in conditions of employment may depend on the nature of the change. See, e.g., FCI Bastrop, 55 FLRA at 852 (discussing an agency's obligations to bargain over the substance, and the impact and implementation of a change in conditions of employment); United States Immigration and Naturalization Serv., Washington, D.C., 55 FLRA at 73 n.8 (discussing circumstances in which an agency may implement a change in conditions of employment prior to negotiations, including where the change was implemented to correct an unlawful practice).
2. Application of General Principles to This Case
The parties have stipulated that in implementing the terms of the settlement agreement, the Respondent affected the conditions of employment of bargaining unit employees. Further, there is no assertion that the effect was de minimus. Accordingly, absent waiver or other defense, neither of which is alleged, the Respondent was obligated to provide the Charging Party with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain. See Scott AFB, 5 FLRA at 9.
The Respondent provides no basis for holding that these principles do not apply in the instant case. First, the Respondent's argument that the Statute does not expressly provide for bargaining the impact and implementation of court orders reflects a misunderstanding of the Statute's structure. The Statute does not enumerate the specific circumstances where the obligation to bargain arises. Rather, the Statute mandates a "broadly defined duty to bargain over conditions of employment that is subject only to express statutory exceptions," none of which are claimed to be available to the Respondent here. Library of Congress v. FLRA, 699 F.2d 1280, 1285 (D.C. Cir. 1983); see also Nuclear Regulatory Comm'n v. FLRA, 895 F.2d 152, 154 (4th Cir. 1990) (citing Library of Congress v. FLRA, 699 F.2d at 1285).
Further, the Respondent's claim that the cases relied upon by the Judge are distinguishable from the instant case has no merit. The Respondent contends that both GPO and NRC involved voluntary settlements of discrimination complaints and, therefore, did not address the issue of whether a bargaining obligation [ v57 p396 ] arises in the implementation of a court order. However, this distinction is irrelevant to the disposition in this case. As noted above, the obligation to bargain is triggered by a change in conditions of employment, regardless of an agency's reasons for effecting the change. Accordingly, whether the change results from a voluntary settlement or a court order, an agency must bargain over those changes to the extent required by law. Just as the Judge found in this case, the Authority's dictum in GPO recognized that an agency has an obligation to bargain over the impact of changes in conditions of employment, even where those changes are occasioned by the resolution of a discrimination complaint.
Finally, the Respondent's objections to the Judge's reliance on § 7106 do not provide a basis for overturning the result reached by the Judge. Initially, it is not clear that the Judge relied on § 7106 to find the obligation to bargain in the circumstances of this case. See Decision at 8. In any event, the Respondent's arguments are meritless. The Supreme Court has recognized that § 7106 is not the source of an obligation to bargain. NFFE, Local 1309 and FLRA v. Dep't of the Interior, 526 U.S. 86, 97 (1999). Rather, § 7106(a) merely withdraws from the duty to bargain certain subjects (management rights) that, but for the exception, would be within the Statute's general duty to bargain based in § 7114. Accordingly, the fact that § 7106 does not provide a specific basis for bargaining over court-ordered settlements does not support the Respondent's contentions.
For these reasons we find that the Respondent was obligated to bargain over the impact and implementation of a court-approved settlement of a discrimination complaint. Accordingly, we deny the Respondent's first exception.
B. Ordering Bargaining over the Implementation of the Court Order Is Within the Authority's Jurisdiction and Does Not Interfere with Judicial Authority
In agreement with the Judge, we find the Respondent's jurisdictional and separation of powers arguments to be without merit. Requiring the Respondent to bargain over the settlement decree's impact and implementation, but not its substance, constitutes neither oversight nor review of the court proceeding. As the Judge stated, the unfair labor practice proceeding "begins at the point where the court's proceeding ended." Decision at 13. For example, the settlement required the Respondent to restore 317 hours of annual leave to the complainant. However, the agreement did not provide for how the restored leave would be allocated in the event of conflicts with the leave plans of other employees. There is no assertion that procedures for resolving such conflicts would not be bargainable. See Decision at 10-11 and 13.
The Respondent's reliance on § 108 of the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1076 (codified as 42 U.S.C. § 2000e-2(n)), is misplaced. Section 108 limits the parties and circumstances under which a litigated or consent judgment may be "challenged." However, as emphasized by the Judge, the proceedings before the Authority do not challenge the judgment. Neither the General Counsel nor the Judge sought to alter the terms of the court decree or interfere with the timely implementation of its specific terms. In addition, nothing in the Judge's order prevents the Respondent from implementing the court's judgment in accordance with its terms. The General Counsel stipulated that a status quo ante order was not appropriate in this case and the Judge specifically ordered only bargaining relating to post-implementation issues. Decision at 16.
Similarly flawed are the Respondent's arguments regarding the separation of powers. The Respondent cites, among other cases, Chicago & Southern Airlines v. Waterman S.S. Corp., 333 U.S. 103 (1948); Nixon v. Sirica, 487 F.2d 700, 714-16 (D.C. Cir. 1973); and Charter Med. Corp. These cases find improper encroachment on the judiciary where another branch of government has attempted to make a determination reserved to the judiciary or has sought to disregard the legitimate authority of the judiciary.
The Respondent acknowledges that the Judge's order would not interfere with the timely implementation of the order's terms, but states that these considerations "[miss] the point" and that the Judge's recommended order "cannot help but be a burden on the power and authority of the Judiciary." Exceptions at 27. However, the Respondent never explains, nor is it otherwise evident, how post-implementation bargaining over only the effects of the court's order interferes with judicial authority. For example, unlike the agency involved in Charter Med. Corp., see 604 F. Supp. at 640, nothing in the Authority's decision implies that a court order may be disregarded. To the contrary, the court order here remains in full effect; this decision addresses only the order's collateral effects.
In sum, we find that nothing in the Judge's recommended decision and order exceeds the Authority's jurisdiction or interferes with the authority of the judiciary. Therefore, we deny the Respondent's second exception. [ v57 p397 ]
C. Ordering Bargaining in this Case Will Not Adversely Impact Effectiveness or Efficiency
Contrary to the Respondent's contentions, requiring bargaining in the circumstances of this case will not jeopardize governmental effectiveness or efficiency. To the extent that the Respondent's contentions are based on concerns that bargaining would delay implementation of the court order, these contentions are groundless. In this regard, the Respondent concedes that complying with a post-implementation bargaining order in this case will not delay the effect of the terms of the settlement.
The Respondent incorrectly claims that a post-implementation bargaining order in this case effectively requires agencies in future cases to delay implementing court-approved settlements or court orders until bargaining is complete. First, the circumstances of this case do not raise any delay-related issues, and we therefore decline to rule on the agency's speculative concerns. Second, although not faced with the issue in this case, we note that the Authority has indicated in prior cases that when an agency changes conditions of employment in order to correct an unlawful practice, the agency may implement the change prior to negotiations. E.g., Dep't of the Interior, United States Geological Survey, Conservation Div., Gulf of Mexico Region, Metairie, La., 9 FLRA 543, 545-546 and n.9 (1982) (noting that an agency need not delay changing conditions of employment where the change was implemented to correct an unlawful past practice).
The Respondent's remaining contentions citing effectiveness and efficiency are also without merit. First, questions concerning the bargaining obligations arising from orders in contested adjudications would be analyzed applying the same general principles as those applied here. That is, if the order affects the conditions of employment of bargaining unit employees, the agency would have an obligation to provide the exclusive representative with notice and an opportunity to bargain to the extent required by the Statute. Because the Respondent has failed to explain how application of this principle in a situation involving a court order resulting from a contested adjudication raises unique concerns not present in this case, and because none are apparent, we reject the Respondent's contention.
Second, the conduct of the Charging Party's representative does not provide a basis for reaching a result contrary to the Judge's recommendations. The fact that a union or a management official might criticize the conduct of a counterpart based on an Authority decision has no bearing on the legal sufficiency of such a decision.
Because none of the Respondent's arguments demonstrate that ordering bargaining in this case will adversely affect effective and efficient government, we deny the Respondent's third exception.
D. This Case Raises Issues Distinct from Those Decided in Luke AFB and Other Cases Relied upon by the Respondent
Initially we emphasize that, contrary to the Respondent's contentions, in neither this case nor previous Authority decisions is the Authority attempting to assert jurisdiction over matters brought under anti-discrimination statutes. However, whenever cases implicate rights and obligations arising under the Statute, the Authority will adjudicate the matters brought before it.
With respect to Luke AFB, we agree with the Judge that the issues decided in Luke AFB are not present here. Specifically, the union representation issues adjudicated in Luke AFB, arising under § 7114(a)(2)(A) of the Statute, are not involved in the instant case. As discussed previously, the instant case deals exclusively with labor relations issues arising after a judicial resolution of an EEO dispute was implemented.
Further, and contrary to the Respondent's exaggerated and unfounded claims, the Authority has never demonstrated hostility to the rights of minorities and women, nor would finding a ULP here do so. With respect to the instant case, the Respondent has made no allegations that the prosecution of this ULP case was in any way motivated by considerations other than vindication of rights under the Statute. Moreover, the principle to be applied in this case is one of general applicability; namely that an agency has an obligation to bargain, to the extent required by law, whenever it changes conditions of employment of represented employees. This principle applies universally and was not constructed to address judgments and agreements arising in an EEO context.
Finally, Respondent's reckless and irresponsible claim of hostility by the Authority to women's and minority rights is patently unsupported in our precedent. In that regard, the Respondent significantly misstates the Authority's holdings in those cases it cites as support. In neither NFEC, San Bruno nor Grissom AFB did the Authority give its approval to the offensive language involved or hold that offensive language is necessarily protected by the Statute. Rather, in each case the Authority followed well-established principles, derived from its own precedent and the private sector, to determine whether the nature of the speech at issue was so offensive as to remove it from the protection of § 7102 [ v57 p398 ] of the Statute. See NFEC, San Bruno, 45 FLRA at 156; Grissom AFB, 51 FLRA at 11-12. Similarly, contrary to the Respondent's contentions, the Authority did not find in Dep't of Veterans Affairs that it would be a per se violation of the Statute for an agency to investigate alleged discriminatory conduct by labor organizations. See Dep't of Veterans Affairs, 56 FLRA at 698-99.
The Respondent has not shown that this case implicates matters addressed in Luke AFB or the other cases relied upon in its fourth exception. Accordingly, the exception is denied.
V. Order
Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, March Air Reserve Base, California shall:
1. Cease and desist from:
(a) Refusing to provide an opportunity for the American Federation of Government Employees, Local 3854, AFL-CIO, the bargaining unit employees' exclusive representative, to bargain concerning the impact and implementation of its court approved settlement agreement involving a bargaining unit employee.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of the rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Bargain, upon request, with the American Federation of Government Employees, Local 3854, AFL-CIO, the impact and implementation of its court approved settlement agreement involving a bargaining unit employee.
(b) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 3854, AFL-CIO 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 the Commander, March Air Reserve Base, 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 ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to § 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days of the date of this Order, as to what steps have been taken to comply herewith.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of the Air Force, March Air Reserve Base, California, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.
WE HEREBY NOTIFY EMPLOYEES THAT:
WE WILL NOT refuse to provide an opportunity for the American Federation of Government Employees, Local 3854, AFL-CIO, to bargain concerning the impact and implementation of its court approved settlement agreement involving a bargaining unit employee.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL BARGAIN, upon request, with the American Federation of Government Employees, Local 3854, AFL- CIO, concerning the impact and implementation of its court approved settlement agreement involving a bargaining unit employee
________________________
(Respondent/Activity)
Date:_________ 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 any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415)356-5002. [ v57 p399 ]
Office of Administrative Law Judges
DEPARTMENT OF THE AIR FORCE
MARCH AIR RESERVE BASE, CALIFORNIA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3854, AFL-CIO
Charging Party
Case No. SF-CA-00037
John R. Pannozzo, Jr., Esquire
For the General Counsel
Monte E. Crane, Esquire
For the Respondent
Rudy A. Guedea, President, AFGE Local 3854
For the Charging Party
Before: RICHARD A. PEARSON
Administrative Law Judge
DECISION
Statement of the Case
The General Counsel of the Federal Labor Relations Authority (the Authority), by the Regional Director of the San Francisco Regional Office, issued an unfair labor practice complaint on May 31, 2000, alleging that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), by implementing a settlement agreement regarding a bargaining unit employee's EEO lawsuit without first notifying the Charging Party and giving the Charging Party an opportunity to bargain over the impact and implementation of the settlement agreement.
Respondent's answer denies that it violated the Statute in implementing the settlement agreement, and it further asserts that the Authority is without power to order it to bargain concerning the implementation of a court-approved settlement agreement.
A hearing in this matter was scheduled for July 25, 2000. Prior to that date, however, the parties entered into a Stipulation of Facts and filed a joint motion to transfer the case to an administrative law judge for a decision based on the stipulated facts. By their joint motion, the parties have waived the right to a hearing and to present evidence, except for the Stipulation of Facts and its attached exhibits. The joint motion was granted, and the hearing was canceled. The General Counsel and the Respondent subsequently filed briefs in support of their positions.
Based on the Stipulation of Facts and the exhibits attached thereto, I make the following findings of fact, conclusions of law, and recommendations. The findings of fact represent my summary and organization of the stipulated facts, and the facts established by the exhibits, that are material to the disposition of the allegations of the complaint. [n1]
Findings of Fact
The American Federation of Government Employees, Local 3854 (Charging Party/the Union) is a labor organization as defined by 5 U.S.C. § 7103(a)(4), and it is the exclusive representative of a unit of employees at March Air Reserve Base, California (Respondent/the Employer). This bargaining unit includes, inter alia, employees within the 452nd Civil Engineering Squadron and employees within the Civil Engineering Construction Management (CECM) section.
In early 1999, the CECM employed, inter alia, one GS-9 Construction Representative and three GS-8 Construction Inspectors. The duties of the Construction Representative include the administration of base engineering contracts and preparation of project designs and cost estimates, while the Construction Inspectors oversee the work being performed on construction and service contracts on the base (Stip. at ¶14-15 and Exh. 4-5).
John Thomas has been an employee of the Respondent and a member of the Union's bargaining unit for several years. Prior to December 1999, Mr. Thomas was employed as a WG-10 Boiler Plant Equipment Mechanic in the Operations Branch of the 452nd Civil Engineering Squadron. He filed an equal employment opportunity (EEO) complaint against the Respondent at least as early as 1993, and his EEO dispute with the Respondent continued until late 1999. He alleged that the Employer had discriminated against him on the basis of his race and color, and he also alleged that the Employer had engaged in reprisals against him based on his EEO activity. Although the EEOC found in 1996 that the Employer had unlawfully discriminated against Mr. Thomas, the Employer refused to accept this decision, and Mr. Thomas filed a civil action in United States District Court in 1998 against the Secretary of the Air Force (Exh. 3). [ v57 p400 ]
Mr. Thomas and his lawyer participated in a settlement conference, along with representatives of the Air Force, at the U.S. District Court on August 5, 1999. During this conference, a settlement agreement was reached, pursuant to which the Employer agreed, inter alia, to promote or transfer Mr. Thomas to a GS-9 Construction Representative position in the CECM, pay him $15,000, credit him with 317 additional hours of annual leave, and provide him with on-the-job training and technical training on the computer software used in the CECM. (Stip. at ¶17; Exh. 6, 8). Although the settlement of the lawsuit was negotiated on August 5, paperwork concerning the settlement continued to be prepared after that date. The civil action was formally dismissed on September 27, 1999 (Exh. 7); a Declaration by the base's Civilian Personnel Officer was signed on November 8, 1999, and filed with the court, explaining in more detail the training that Mr. Thomas would need in order to become proficient in his new position (Exh. 8); and on December 7, 1999, Mr. Thomas and the Employer executed a Stipulation for Compromise Settlement, which set forth the terms of the settlement in more detail (Exh. 9). Mr. Thomas actually transferred to his new position on December 19, 1999.
Prior to the assignment of Mr. Thomas to his new position, the CECM had only one GS-9 Construction Representative. In May or June of 1999, the Employer's Base Civil Engineer decided that a second such position was needed, and in October 1999 the Employer began the process of filling a third Construction Representative position (Stip. at ¶14, 25). By naming Mr. Thomas to the first opening pursuant to the EEO settlement agreement, the Employer did not utilize the same posting and competition procedures it used in filling the second opening. For the latter opening, a candidate referral list containing nine employees' names, including CECM's three GS-8 Construction Inspectors, was sent in November 1999 to the supervisor who made the hiring decision. (Stip. at ¶25).
On August 12, 1999, several of the base's management officials, as well as the Assistant U.S. Attorney who had represented the Employer in the lawsuit, met with the bargaining unit employees of CECM to discuss the settlement agreement in which Mr. Thomas was to be assigned to CECM. Although the Employer did not notify the Union of the settlement agreement or invite the Union to send a representative to the August 12 meeting, the Union President attended the meeting at the invitation of a unit employee. At the meeting, the Union President asked why it had not been afforded the opportunity to negotiate concerning these matters, and the Assistant U.S. Attorney replied that the Employer was not required to negotiate, "because this was a Federal Judge's decision." (Stip. at ¶18).
The parties' stipulation further provides: "The Charging Party was not afforded prior notice nor an opportunity to bargain over the appropriate arrangements and procedures resulting from the implementation of the Federal District Court settlement by Respondent." (Stip. at ¶19). The parties also stipulated: "The decision to place Mr. Thomas into one of the two GS-9 Construction Representative positions adversely impacted the three GS-8 Construction Inspectors and two other GS-9 Construction Representatives in CECM. For example, the GS-8 Construction Inspectors were denied the opportunity to compete for that GS-9 Construction Representative opening, Mr. Thomas will receive two weeks of contract management and one week of SABER training that either Ms. Pietropaula or Mr. Tancrator could have attended and Mr. Thomas' large annual leave balance could impact on the five other CECM employees ability to schedule their annual leave." (Stip. at ¶20).
Discussion and Conclusions
A. Issues and Positions of the Parties
The essential issue to be resolved in this case is whether the Employer was obligated to negotiate with the Union over the appropriate arrangements and procedures resulting from the implementation of the settlement agreement between the Employer and Mr. Thomas.
The General Counsel takes pains to emphasize that the complaint does not allege that the Employer had an obligation to bargain over the contents of the EEO settlement itself, and that a status quo remedy is not being requested. The complaint attacks only the Employer's refusal to negotiate concerning the implementation of the settlement, and in this respect, the General Counsel argues that the law is settled. Specifically, he argues that an employer's bargaining obligation regarding a civil court settlement or judgment is no different than its obligation concerning any type of management initiative which constitutes a reserved management right under section 7106(a) of the Statute. Accordingly, although the substance of the management initiative may not be negotiable, the impact and implementation of the initiative is negotiable, if its impact on bargaining unit employees is more than de minimis. Social Security Administration, Gilroy Branch Office, Gilroy, California, 53 FLRA 1358, 1368 (1998).
The General Counsel cites two decisions as directly applicable to the current case: U.S. Government [ v57 p401 ] Printing Office, 23 FLRA 35 (1986)(GPO) and Nuclear Regulatory Commission, 29 FLRA 660 (1987)(NRC). In both of these decisions, it is argued, the Authority ruled that when the settlement of an EEO complaint results in a change in unit employees' conditions of employment, the union must be afforded the opportunity to bargain over the impact and implementation of that change.
The Respondent does not directly address the merits of the complaint or FLRA case law concerning the duty to bargain. It has stipulated that its settlement agreement with Mr. Thomas "adversely impacted" other bargaining unit employees, and that it refused to notify the Union of the settlement or to negotiate with the Union concerning its impact and implementation. However, the Respondent asserts a number of arguments to support its contention that it had no obligation to negotiate concerning the impact of the settlement. It argues that the Authority lacks subject matter jurisdiction over Federal court settlements; that the General Counsel lacks standing to attack a Federal court settlement; that the Authority and the Statute cannot "regulate" the implementation of Federal court settlements without violating the Constitution's separation of powers; and that requiring an agency to negotiate over the impact of a court settlement would produce "chaos" and would violate the principles of an efficient and effective government. Additionally, the Respondent argues that because Mr. Thomas' lawsuit was brought against the Secretary of the Air Force, who was represented in court by the United States Attorney, the Respondent itself did not commit an unfair labor practice, since it was "acting under a compulsion that it was not in a position to resist." (Resp. Brief at 23).
B. Analysis
1. Background
It is almost as important to identify the issues that are not material to this case as it is to identify the issues that are involved.
First, this case does not pose the questions that have been raised in Luke Air Force Base, Arizona, 54 FLRA 716 (1998), rev'd sub nom. Luke Air Force Base, Arizona v. FLRA, 208 F.3d 221 (9th Cir. 1999), cert. denied 121 S.Ct. 60 (Oct. 2, 2000)(Luke AFB), and similar cases. In Luke AFB, the Authority held, consistent with its precedent, that a meeting between an agency and an individual employee for the purpose of discussing possible settlement of her EEO complaints constitutes a "formal discussion . . . concerning [a] grievance," within the meaning of section 7114(a)(2)(A) of the Statute, and that an agency commits an unfair labor practice if it conducts such a meeting without affording the union an opportunity to be represented. The issues surrounding a union's right to participate in EEO complaint and settlement discussions have been hotly contested, with both the Authority and the circuit courts reversing directions at various times. [n2] In the current case however, the General Counsel appears to have gone to great lengths to avoid the legal issues of the Luke AFB line of cases. Although the Stipulation of Facts describes the many years of the Employer's EEO disputes with Mr. Thomas, and a series of meetings between Mr. Thomas and the Employer relating to his EEO complaints and lawsuit, the complaint does not allege that Respondent violated the Statute by failing to notify the Union of those meetings or by failing to allow the Union to be represented. The complaint only attacks the Respondent's refusal to notify or bargain with the Union before implementing the settlement agreement.
Second, this case does not involve the issue of whether the Employer was required to bargain with the Union over the substance of the EEO settlement agreement. The Respondent's brief repeatedly blurs the distinction between substantive bargaining and "impact and implementation" bargaining, to the point that the distinction disappears. For instance, in arguing that the Authority lacks subject matter jurisdiction over the alleged unfair labor practice, the Respondent asserts that "all challenges to District Court settlements be brought in the District Courts," (Resp. Brief at 17) and that the "Charging Party . . . sought by this action to void the District Court approved settlement." Id. Similarly, the Respondent asserts that the General Counsel "lacks standingto bring a challenge to a District Court judgment or order." Id. at 18. At other points in its brief, the Respondent acknowledges that "the General Counsel is not seeking to change in any way the terms of the settlement agreement and judgment" or to impose a status quo ante bargaining order. Id. at 22, but its arguments inevitably [ v57 p402 ] return to the notion that implementation bargaining would modify the substance of the settlement agreement or constitute a "burden on the . . . Judiciary." Id.
My findings and conclusions in this case will be confined to the Employer's actions and obligations after it reached a settlement of Mr. Thomas' EEO case. My decision starts with the premise that the terms of the settlement agreement were a valid exercise of the Respondent's management rights and not subject to change through bargaining. The decision therefore addresses the Employer's obligation, or lack thereof, to bargain with the Union concerning the "procedures" to be observed by the Employer in exercising its management authority and "appropriate arrangements for employees adversely affected by the exercise" of management's authority. Section 7106(b)(2) and (3) of the Statute.
2. Respondent was Obligated to Negotiate Concerning the Impact and Implementation of the Settlement
As noted in my summary of the General Counsel's position, the law in this area is well established. Before implementing a change in conditions of employment affecting bargaining unit employees, an agency is required to provide the exclusive representative with notice of, and an opportunity to bargain over, those aspects of the change that are within the duty to bargain. Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, Texas, 55 FLRA 848, 852 (1999). The extent to which an agency is required to bargain over changes in conditions of employment depends on the nature of the change. In some situations, a union may be entitled to bargain over the substance of the actual decision. See, e.g., Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153, 155 (1990). When the decision to change a condition of employment is an exercise of a management right under section 7106, the substance of the change is not negotiable, but the agency nonetheless is obligated to bargain over the impact and implementation of the change, if the change has more than a de minimis effect on conditions of employment. 55 FLRA at 852. See also, Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-09 (1986), which explains how the de minimis standard is applied.
In this case, the Employer's settlement agreement with Mr. Thomas required, inter alia, that he be reassigned from his WG-10 Equipment Mechanic position in the Operations Branch to a GS-9 Construction Representative position in CECM; that he be paid $15,000 in monetary relief; that he have 317 hours of annual leave restored; and that he be given on-the-job training and off-site computer training. As noted in the Civilian Personnel Officer's Declaration in the civil court action, "The prospective supervisor has outlined a plan for training Mr. Thomas. It requires Mr. Thomas to work closely with that supervisor and the co-workers in that section. The training outline is flexible and may be adjusted according to the type of assignments that arise, Mr. Thomas' progress, and the availability of off-site training." (Exh. 8, ¶4).
The parties further stipulated that the terms of the settlement agreement "adversely impacted" Mr. Thomas' co-workers, in that "the GS-8 Construction Inspectors were denied the opportunity to compete for that GS-9 Construction Representative opening, Mr. Thomas will receive two weeks of contract management and one week of SABER training that either Ms. Pietropaula or Mr. Tancrator could have attended and Mr. Thomas' large annual leave balance could impact on the five other CECM employees ability to schedule their annual leave." (Stip. at ¶20).
In light of these facts, it was reasonably foreseeable that the settlement agreement would have a significant impact on the working conditions of employees in the unit, and that the impact was more than de minimis. For instance, the inability of other employees to compete for the position given to Mr. Thomas was a significant matter, and this is particularly clear in light of the procedure followed by the Employer for the second Construction Representative opening, which was filled shortly after Mr. Thomas was given the first opening. Although the Union may not have been entitled to negotiate a change concerning the method in which Mr. Thomas was named to the first opening, it was certainly entitled to discuss with the Employer the ramifications of Mr. Thomas' hiring on the procedures to be employed in future situations. In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 37 FLRA 278, 285 (1990), a violation of section 7116(a)(1) and (5) was found, based on the unilateral reassignment of a single employee from a field representative to a claims representative position. In U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 858 (1997), the Authority held that it was improper for the agency to decide to fill certain vacancies through term appointments rather than career appointments, without negotiating the impact and implementation of that decision. Similarly, the Respondent here was obligated to negotiate the impact and implementation of Mr. Thomas' reassignment, and the implications of the procedures used for making that reassignment. [ v57 p403 ]
Moreover, the procedures to be followed by the Respondent in relation to Mr. Thomas' large annual leave balance, and the availability of training opportunities for other employees, in light of the settlement agreement, were significant issues that warranted bargaining. The base Civilian Personnel Officer clearly recognized the potential complications inherent in placing Mr. Thomas into a new unit and a new position when he executed his Declaration in Mr. Thomas' civil action (Exh. 8). He noted that while Mr. Thomas' supervisor had drafted a training plan, Mr. Thomas would need to work closely with his supervisor and co-workers, and that the training plan might require future adjustments. Id. Other employees might also be interested in receiving training, and they certainly would be interested in using leave during the month of December, and all of these interests could be compromised by the transfer into their section of an employee with 317 hours of leave and the need to receive considerable training. The appropriate mechanism for the Employer to accommodate such interests is through impact and implementation bargaining, not managerial fiat.
The two cases most closely on point to the facts of the instant case are the GPO and NRC decisions cited by the General Counsel, supra, and I conclude that the language of those decisions is controlling here. Although the Authority's discussion of impact and implementation bargaining in both cases was dictum, the underlying principle articulated by the Authority is nonetheless persuasive, and it is fully consistent with the Authority's precedent concerning implementation bargaining.
In both the GPO and NRC cases, the Authority dismissed unfair labor practice complaints based on the employer's refusal to notify the union of (or allow the union an opportunity to be present at) settlement meetings concerning an employee's EEO complaint. [n3] Notwithstanding the fact that the union had no right to be present at those EEO meetings, the Authority stated in GPO that the union "may have a role if the settlement gives rise to an impact on the bargaining unit." 23 FLRA at 40. Specifically, the Authority stated:
"Accordingly, if the adjustment of an EEO complaint results in a change of unit employees' conditions of employment, the agency would have an obligation under the Statute to give prompt notice of that change to the exclusive representative of the unit employees and provide it with an opportunity to bargain to the extent required by the Statute." Id. at 40-41. (footnote omitted).
In the NRC case, the Authority reaffirmed the above-cited language from GPO and further explained how such an EEO settlement might affect unit employees. The example given in NRC, 29 FLRA at 665, "reassignment or promotion of the employee," is precisely the type of change which occurred in the current case. The settlement of Mr. Thomas' EEO complaint resulted in several changes in the working conditions of unit employees, by virtue of the method utilized for selecting Mr. Thomas for the vacant position and by virtue of the training, work assignment and leave issues created by Mr. Thomas' reassignment/promotion. Accordingly, the Respondent was obligated to notify the Union of these changes prior to implementation and to bargain over the procedures and arrangements necessary to implement the settlement agreement. Its admitted refusal to do so constituted a violation of section 7116(a)(1) and (5) of the Statute.
3. Respondent's Defenses to its Obligation to Bargain Are Not Valid
The Employer has stipulated that it did not notify or bargain with the union concerning the effects of its settlement agreement. The Employer has not claimed that the impact of the settlement on unit members was de minimis. Instead, it has argued that requiring it to bargain over such matters would violate several legal principles. As I explained in the background section of the Analysis, most of the objections raised by the Employer are simply irrelevant or legally inapplicable.
For instance, the Employer has asserted that the Authority lacks subject matter jurisdiction here, because the exclusive method for "collateral attacks on a consent judgment" is through the courts, not through an executive agency such as the FLRA. But in fact, this unfair labor practice proceeding does not seek to attack the Employer's settlement agreement with Mr. Thomas in any way. As I have noted several times, and as the General Counsel has repeatedly stated, the terms of the settlement agreement are not in dispute in this case. The complaint alleges only that the Employer must bargain over the impact and implementation of the settlement agreement, and that is all that I find.
For this reason, the Employer's "preemption," "standing" and "separation of powers" arguments similarly lack merit. Nothing in the obligation to engage in "implementation" bargaining interferes with the District [ v57 p404 ] Court's judgment or the terms of the settlement agreement. Indeed, the current unfair labor practice proceeding carefully begins at the point where the court's proceeding ended. The Employer seems to be saying that because the terms of the settlement are fixed, discussing procedures for implementing those terms would somehow alter the settlement. However, the Employer provides no support, either legal or factual, for this assertion. As I explained above, the settlement agreement restored 317 hours of annual leave to Mr. Thomas and required that he be given certain training. The agreement doesn't explain how Mr. Thomas will be permitted to use his leave, especially since employees are normally permitted to carry over only 240 hours of annual leave to the next calendar year. With Mr. Thomas' reassignment to CECM in mid-December, many employees were likely to be interested in taking leave simultaneously. Similarly, while the settlement agreement requires the Employer to offer training to Mr. Thomas, it says nothing about the right of other employees to receive training, or how such competing claims would be handled. The Union was entitled to negotiate such issues with the Employer, and such negotiations would not alter the terms of the settlement or interfere with the jurisdiction of the district court in any way.
In Section G of its brief, the Respondent undertakes a broader attack on its alleged bargaining obligation: it argues that if Federal agencies were required to negotiate with unions every time a court or agency judgment affected employees, the result would be "inefficient and ineffective." The Respondent argues that "[r]equiring agencies to delay implementation of court and administrative decisions would result in nothing short of chaos." (Resp. Brief at 27). But it provides no legal precedent to support this argument, and the hypothetical examples it cites actually make the case for the General Counsel. For instance, the Respondent argues that the reinstatement of an employee through an adverse action appeal to the Merit Systems Protection Board would adversely affect other unit employees, and that it would be "inefficient and ineffective" to require agencies to bargain before implementing such an order. But indeed the Authority has held that while many aspects of adverse action and reduction-in-force procedures are fixed by statute or regulation, agencies must negotiate with their unions concerning those issues which are not fixed. See, e.g., Department of the Air Force, Scott Air Force Base, Illinois, 35 FLRA 844, 852-59 (1990) and cases cited therein. In U.S. Patent and Trademark Office, 31 FLRA 952, 981 (1988)(ALJ Decision), it was held that "if an agency makes a change in working conditions to conform to law or regulation, it is relieved from the obligation to bargain as to the decision to take such actions. . . . [but it] must bargain as to its impact and implementation." (emphasis in original). The other examples cited by the Respondent do not support a conclusion that such negotiations will result in "chaos." Unions negotiate with agencies regularly over issues such as smoking in the workplace, reassignment of employees, and the effects of Federal regulations and adverse action rulings. While there may be some inefficiencies inherent in such bargaining, the Respondent has not demonstrated any relevant case precedent to support its argument, which would essentially nullify most of the bargaining obligation of Federal agencies.
Finally, the Respondent argues that the unlawful actions alleged in the complaint were committed by the Department of the Air Force and the Department of Justice, not by officials of March Air Reserve Base; thus, it argues that Respondent March Air Reserve Base committed no unfair labor practice. Indeed, there is a line of cases in which the Authority has held that "[w]here a subordinate level activity merely carries out higher level instructions and acts ministerially and without discretion in the matter," the subordinate will not be found to have committed an unfair labor practice. Headquarters, U.S. Air Force, Washington, DC and 375th Combat Support Group, Scott Air Force Base, Illinois, 44 FLRA 117, 126 (1992)(Scott AFB), and cases cited therein. But the principles enunciated in the Scott AFB decision also illustrate why such a result is unwarranted in the instant case.
In Scott AFB and similar cases, the subordinate activity acted "ministerially and without discretion." No such facts exist in our case, and it is highly disingenuous for the Respondent to argue that it was under a "compulsion" to refuse to bargain with the Union, or that bargaining would subject it to contempt proceedings in the District court. Although the Secretary of the Air Force was the named defendant in Mr. Thomas' civil action, and the U.S. Attorney represented the Secretary in the lawsuit, the alleged unfair labor practice here is the refusal to negotiate with the Union concerning the implementation of the settlement. As I have stated repeatedly, the Employer here is required to negotiate only over the implementation of the settlement, not the substantive terms of the settlement. Details such as the determining which employees will receive training, and when; and the balancing of competing leave requests, are encompassed within this bargaining obligation. Such details are handled by the supervisors and managers at March Air Reserve Base, not by the Secretary of the Air Force or in the U.S. Attorney's Office. [ v57 p405 ]
Although an Assistant U.S. Attorney did speak at the August 12, 1999 meeting with bargaining unit employees, at which she told the Union President that the Employer "did not have to negotiate with the [Union] because this was a Federal Judge's decision" (Stip. at ¶18), it was officials of March Air Reserve Base, not of the U.S. Attorney's Office, who were the primary actors in the refusal to bargain. Several officials from the base were present at the August 12 meeting, and it was conducted on the base. Additionally, it was Mr. Thomas' supervisor, and various management officials such as the Civilian Personnel Officer, who were responsible for establishing a training plan for Mr. Thomas and for modifying it, as necessary (Exh. 8). Unlike the Scott AFB case, there was no directive or written instruction from a higher authority ordering the Employer not to bargain. Officials at March Air Reserve Base were involved in the EEO litigation and preparation of the Thomas settlement agreement, and they had considerable discretion in how the settlement would be implemented. The Declaration of the base's Civilian Personnel Officer (Exh. 8, ¶4), one of the settlement documents in the litigation, expressly states that the training plan for Mr. Thomas was "flexible and may be adjusted according to the type of assignments that arise" and other factors. Moreover, any bargaining over the implementation of the settlement would clearly be in the hands of persons at March Air Reserve Base. Therefore, the facts required, under the Scott AFB line of cases, for an employer to be exculpated from an unfair labor practice, are not present in this case. Respondent March Air Reserve Base must accept responsibility for their own officials' refusal to bargain with the Union.
With respect to the appropriate remedy for the Respondent's violation of the Statute, the General Counsel has stipulated that a status quo ante bargaining order is not appropriate, in the facts of this case. The terms of the settlement agreement were implemented pursuant to a court order, and those terms will not be disturbed. However, a prospective bargaining order relating to post-implementation issues is appropriate and warranted. The Employer will be required, among other things, to bargain with the Union concerning the procedures which the Employer will observe in carrying out the terms of its settlement agreement with John Thomas and the appropriate arrangements for employees adversely affected by that settlement agreement.
Based on the above findings and conclusions, I conclude that Respondent March Air Reserve Base violated section 7116(a)(1) and (5) of the Statute, as alleged, and I recommend that the Authority issue the following Order:
ORDER
Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of the Air Force, March Air Reserve Base, California, shall:
1. Cease and desist from:
(a) Unilaterally changing conditions of employment, without first notifying and bargaining with the American Federation of Government Employees, Local 3854, AFL-CIO, the exclusive representative its employees, concerning the procedures which the Employer will observe in carrying out the terms of its Federal court settlement agreement with John Thomas and the appropriate arrangements for bargaining unit employees adversely affected by that settlement agreement.
(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of the rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Negotiate with the American Federation of Government Employees, Local 3854, AFL-CIO, concerning the procedures which the Employer will observe in carrying out the terms of its Federal court settlement agreement with John Thomas and the appropriate arrangements for bargaining unit employees adversely affected by that settlement agreement.
(b) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 3854, AFL-CIO 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 the Commander, March Air Reserve Base, 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 ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, in writing, within 30 days of the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, November 30, 2000.
________________________
RICHARD A. PEARSON
Administrative Law Judge [ v57 p406 ]
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Department of the Air Force, March Air Reserve Base, California, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change conditions of employment of bargaining unit employees, which resulted from the implementation of a Federal District Court settlement agreement involving a bargaining unit employee, without first providing notification to the American Federation of Government Employees, Local 3854, AFL-CIO, the exclusive representative our employees, and an opportunity to bargain concerning the procedures to be observed in carrying out the terms of that settlement agreement and the appropriate arrangements for bargaining unit employees adversely affected by that settlement agreement.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL BARGAIN with the American Federation of Government Employees, Local 3854, AFL-CIO, concerning the procedures to be observed in carrying out the terms of that settlement agreement and the appropriate arrangements for bargaining unit employees adversely affected by that settlement agreement.
________________________
(Respondent/Activity)
Date:__________ 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 any of its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, San Francisco Regional Office, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415)356-5000.
Footnote # 1 for 57 FLRA No. 71 - ALJ's Decision
References to the Stipulation of Facts will be cited as "Stip."
Footnote # 2 for 57 FLRA No. 71 - ALJ's Decision
The Authority first held that such EEO meetings constituted formal discussions under section 7114(a)(2)(A). Internal Revenue Service, Fresno Service Center, Fresno, California, 7 FLRA 371 (1981). After the Ninth Circuit rejected this reasoning in Internal Revenue Service, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983), the Authority adopted the court's view. Bureau of Government Financial Operations, Headquarters, 15 FLRA 423 (1984). Then, when the D.C. Circuit rejected the Ninth Circuit's reasoning and held that such meetings are formal discussions concerning grievances (NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985)), the Authority returned to its original holding. U.S. Department of Justice, Bureau of Prisons, Federal Correctional Institution, (Ray Brook, New York), 29 FLRA 584 (1987).
Footnote # 3 for 57 FLRA No. 71 - ALJ's Decision
As noted more fully in note 1, at the time of the GPO decision, the Authority had not yet taken its current position that EEO settlement discussions were encompassed by section 7114(a)(2)(A). In the NRC case, the union was not entitled to attend the EEO settlement meeting because the complaining employee was not a member of the bargaining unit.