37:0409(28)CA - - Army, Fort Stewart Schools, Fort Stewart, GA and Fort Stewart Association of Educators, NEA - - 1990 FLRAdec CA - - v37 p409
[ v37 p409 ]
The decision of the Authority follows:
37 FLRA No. 28
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
FORT STEWART SCHOOLS
FORT STEWART, GEORGIA
FORT STEWART ASSOCIATION OF EDUCATORS
NATIONAL EDUCATION ASSOCIATION
Case No. 4-CA-50417
DECISION AND ORDER
September 21, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Chief Administrative Law Judge. The Respondent did not file an opposition to the General Counsel's exceptions.
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain in good faith over proposals made by the Union which are substantially similar to proposals found negotiable by the Authority in Fort Bragg Unit of North Carolina Association of Educators, NEA and Fort Bragg Dependent Schools, 12 FLRA 519 (1983) (Fort Bragg). The Judge recommended that the complaint be dismissed in its entirety.
Pursuant to section 2423.29 of the Authority's rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. We affirm the rulings. We adopt the Judge's conclusions only to the extent consistent with this decision.
For the following reasons, we conclude, contrary to the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute when it failed to negotiate over proposals which were substantially similar to those found negotiable in Fort Bragg.
II. Procedural Background
On October 22, 1984, the Respondent declared nonnegotiable a number of proposals concerning pay and fringe benefits made by the Union during negotiations for a collective bargaining agreement. The Union filed an unfair labor practice charge on April 8, 1985, alleging that the Respondent's failure to bargain about its proposals constituted an unfair labor practice. At the same time, the Union filed a negotiability appeal in Case No. 0-NG-1071. The Union decided to pursue the negotiability appeal and the Regional Director held the processing of the ULP case in abeyance. On July 31, 1987, the Authority issued its decision on the negotiability appeal in Fort Stewart (Georgia) Association of Educators and Fort Stewart Schools, 28 FLRA 547 (1987) (Fort Stewart). The Respondent filed an appeal of the Authority's decision in the United States Court of Appeals for the Eleventh Circuit.
On November 19, 1987, the General Counsel issued the Complaint and Notice of Hearing in the instant case. The complaint alleged that certain of the proposals which were declared nonnegotiable by the Respondent on October 22, 1984, were "not substantially different from proposals found negotiable by the Authority" in Fort Bragg. Complaint at 2-3. The complaint alleged that the Respondent's conduct constituted a failure to bargain in good faith in violation of section 7116(a)(1) and (5) of the Statute.
On January 19, 1988, the General Counsel submitted a Motion for Summary Judgment. The Motion for Summary Judgment asserted that Union Proposals 1(F) and 1(J) (set forth at pages 2-3 of the Judge's Decision) were declared nonnegotiable by the Respondent on October 22, 1984. The General Counsel asserted that the Respondent admitted that Proposals 1(F) and 1(J) were the same as proposals raised in Fort Bragg. The General Counsel asserted that because the Respondent had "admitted to all material facts alleged in the Complaint," and because the Respondent's "only defenses in these matters [were] those that [had] been rejected by the Authority," its Motion for Summary Judgment was appropriate. Motion for Summary Judgment at 5.
On January 21, 1988, the Respondent submitted a Motion to Dismiss the Complaint to the Judge. The Motion contended that the Chief, Office of Labor and Employee Relations, Office of the Deputy Chief of Staff for Personnel, Department of the Army, herein called the Agency, had, on various occasions, instructed the Respondent "not to negotiate salaries and money related fringe benefits." Motion at 1. The Respondent submitted directives from the Agency setting forth these instructions. The Motion concluded that the Respondent had not violated section 7116(a)(1) and (5) of the Statute, as alleged, because it had been "directed by [the Agency] not to negotiate [U]nion proposals concerning wages and money related fringe benefits." Id. at 2. The Respondent asserted that "where a subordinate activity merely complies with a directive by the [a]gency the subordinate activity does not violate the statute." Id.
On January 22, 1988, the Respondent submitted an Amended Answer to the Complaint. The Respondent reiterated its contention that it had rejected the Union's proposals on October 22, 1984, at the direction of the Agency. Although the Respondent conceded that some of the proposals at issue in this case were "similar to those found negotiable by the Authority in" Fort Bragg, the Respondent asserted that the Union had "not shown that there [were] no meaningful differences between its proposals" and those found to be negotiable in Fort Bragg. Amended Answer at 1. The Respondent also contended that some of the proposals in this case were not dealt with in Fort Bragg, and that other proposals were found to be nonnegotiable by the Authority in Fort Bragg. The Respondent renewed its request that the complaint and hearing be continued pending the resolution of the appeal of Fort Stewart in the Eleventh Circuit, asserting that in Fort Bragg, "the Authority did not consider the Agency's arguments . . . concerning the legislative history of the Statute." Id. at 2. The Respondent also contended that the Union's proposals did not concern conditions of employment as defined in section 7103(a)(14) of the Statute, that they interfered with the Respondent's right to determine its budget under section 7106(a)(1), and that they violated "Federal statutes, Agency regulations having the force and effect of law, and an Agency regulation for which a compelling need exists . . . ." Id.
On January 25, 1988, the General Counsel filed an Opposition to the Respondent's Motion to Dismiss, contending that the Respondent's Motion was untimely filed. The General Counsel cited the Authority's rules, at section 2423.22, which state that "[o]nly in extraordinary circumstances will . . . a motion be granted where filed less than ten (10) days prior to the scheduled hearing." The General Counsel contended that the Respondent's Motion to Dismiss, filed only 8 days before the date of the hearing, was untimely.
The General Counsel also stated that the charge in this case names "Department of Defense, Department of the Army and Fort Stewart Schools and the Complaint herein names Department of the Army, Fort Stewart Schools as Respondent." Opposition at 2. The General Counsel contended that "this is sufficient to bring Department of the Army in as a Respondent independent of Fort Stewart Schools." Id. Therefore, the General Counsel concluded, if the Respondent's "contention that Department of the Army directed Fort Stewart Schools to declare the proposals in question non-negotiable [is true it] would only serve to absolve Fort Stewart Schools" of the ULP but not the Agency. Id. The General Counsel further argued that "even assuming, arguendo, that Fort Stewart Schools is the only Respondent herein, . . . [w]here only the activity has been named in the complaint, it will be found guilty of an unfair labor practice, even if it was acting under orders from higher levels of management because to do otherwise would not effectuate the purposes and policies of the Statute." Id.
On January 26, 1988, the Respondent submitted a Response to the General Counsel's Motion for Summary Judgment. The Response reiterated the contentions asserted in the Respondent's January 22, 1988 Amended Answer to the Complaint.
On January 29, 1988, the Respondent submitted a Response to the General Counsel's Opposition to the Respondent's Motion to Dismiss Complaint. The Respondent contended that its Motion to Dismiss was not untimely, noting that the 10-day rule in section 2423.22 of the Authority's regulations refers only to motions to change the date of the hearing. The Respondent also asserted that it raised the contention that it was acting under orders from higher authority in its Amended Answer. With respect to the contention itself, the Respondent asserted that to "identify Department of the Army and Fort Stewart Schools as the same is incorrect." Response at 1. Finally, the Respondent requested a hearing on its Motion to Dismiss so that it may "call the appropriate witnesses to verify the facts contained in all its supporting correspondence." Id.
On February 8, 1988, the Judge issued an Order Indefinitely Postponing Hearing and Requesting Further Briefs. The Judge concluded that "[e]xamination of the documents submitted indicates that this case is now ripe for judgment without a hearing." Order at 1. The Judge noted that the complaint originally "identified some 38 proposals which were placed on the table in 1984 and simply alleged that some unidentified and unknown number of them was substantially identical to some of the 17 proposals determined to be negotiable in Fort Bragg." Id. The Judge concluded that "[t]he only proposals ultimately advanced . . . sought cost of living salary adjustments and lump-sum payments for unused sick leave [and were] in substance indistinguishable from their counterparts in Fort Bragg." Id. at 2. The Judge concluded that "[i]t follows that the refusal to bargain concerning them was an unfair labor practice." Id. The Judge also concluded, however, that "[i]t does not necessarily follow that they are actionable now, in this forum." Id. Therefore, the Judge requested further briefs on "whether the Statute or Rules 2423.5 and 2424.5 contemplate the resolution of this kind of controversy in both the negotiability and the unfair labor practice forums." Id.
The General Counsel and the Union filed briefs in response to the Judge's request.
III. Administrative Law Judge's Decision
The Judge noted that "the substantive issue here is simply whether the proposals at issue are substantially indistinguishable from those determined to be negotiable in Fort Bragg." Decision at 5. The Judge found that the proposals at issue (Proposals 1(F) and 1(J)) "were substantially identical" to similar proposals found to be negotiable in the Authority's earlier decision in Fort Bragg. Id. at 3.
The Judge also found, however, that there was "no reason to [conclude] that the Authority would agree that reactivation of this charge warranted issuance of [a] Complaint rather than dismissal in these circumstances." Id. at 23. Therefore, the Judge recommended "that the Authority dismiss this Complaint and modify its Rules to preclude the use of the ULP procedures after a negotiability appeal has run its course" when the negotiability determination is "based on a precedent which predates the decision to seek a negotiability determination." Id.
The Judge based his recommendation that the Authority dismiss the complaint on his conclusion that "the Authority's approach to the interface between negotiability determinations and unlawful refusals to bargain has been flawed in fundamental ways from the very beginning." Id. at 19. The Judge concluded that "[j]udicial economy . . . is offended . . . by holding a viable ULP case while a negotiability determination is made which adds nothing to the fund of negotiability law, and contributes nothing to the resolution of the ULP case, and then reactivating the latter for an inquiry which plows no new substantive ground." Id. at 21-22. The Judge further concluded that "a decision to seek a negotiability determination . . . ought to preclude the coexistence of a viable ULP charge." Id. at 22. Finally, the Judge concluded that it was "wholly inappropriate to grant a 'make whole' remedy" for the period of time prior to the Authority's negotiability determination because "icing the ULP proceeding deprived Respondent of an early opportunity to join issue in the dormant case and shorten its exposure to such liability." Id.
IV. General Counsel's Exceptions
The General Counsel emphasizes that the issue in this case is "strictly limited to the claim that Respondent declared two proposals nonnegotiable when the Authority had already ruled virtually identical proposals negotiable in Fort Bragg." Brief in Support of its Exceptions at 4. The General Counsel contends that this case was not processed when the original charge was filed "not because the outcome of the negotiability appeal might have some legal impact on the ULP, but rather [because] . . . holding the ULP in abeyance [gave] the parties the chance to settle their differences at the bargaining table, possibly rendering the ULP moot." Id. The General Counsel asserts that the ULP complaint was issued because the "parties had reached no agreement nor did they otherwise make the ULP moot by the time the negotiability appeal was decided." Id.
The General Counsel notes that the Judge found that the two proposals "were in fact substantially identical to ones ruled negotiable in Fort Bragg and indicated an unfair labor practice had occurred." Id. at 4-5. The General Counsel concludes that the sole issue in this case is whether the two proposals at issue are "so similar" to the proposals found negotiable in Fort Bragg "that Respondent's declaration of nonnegotiability constituted bad faith bargaining." Id. at 6.
The General Counsel asserts that "it is not good enough to merely 'throw doubt' on whether the ULP process may be used here." Id. According to the General Counsel, the Judge "must find that the Rules and Regulations positively bar this otherwise valid ULP." Id. (emphasis in original). The General Counsel also contends that because sections 2423.5 and 2424.5 of the Authority's Rules and Regulations provide "that the procedure not selected to go first will be 'suspended[,]' . . . the Regulations sanction the General Counsel's policy of holding ULP's in abeyance pending the outcome of negotiability appeals[,]" and there is "no basis for a finding that the Rules and Regulations bar the revival of a case held in abeyance . . . ." Id.
The General Counsel concludes that, even if the Authority decides to adopt the Judge's proposed changes in its Rules and Regulations, "there is nothing that can be done about them in the context of this" case. Id. at 8. The General Counsel cites the court's holding in AFGE v. FLRA, 777 F.2d 751, 759 (D.C. Cir. 1985) to support its assertion that "unless and until [an agency] amends or repeals a valid legislative rule or regulation, an agency is bound by such rule or regulation." Id. at 9.
Finally, the General Counsel contends that an appropriate remedy in this matter would "include a cease and desist order, a notice posting and an affirmative order directing Respondent to negotiate the Union's proposals and giving any agreement reached retroactive effect." Id.
V. Preliminary Issue
The General Counsel contends that the Respondent's Motion to Dismiss was untimely filed because section 2423.22 of the Authority's Rules and Regulations states that a Motion to Dismiss filed less than 10 days prior to a hearing will be granted only in extraordinary circumstances. We disagree.
Section 2423.22(a) of the Rules and Regulations states that "[o]nly in extraordinary circumstances will such a motion be granted where filed less than ten (10) days prior to the scheduled hearing." The word "such" refers to motions to change the date of a hearing. Therefore, as the requirement in section 2423.22(a) of the Rules and Regulations that motions be filed 10 days prior to a hearing is limited to motions to change the date of a hearing, and as there is no other time limit established for the filing of motions to dismiss a complaint, we conclude that the Respondent's Motion to Dismiss the Complaint was timely filed.
VI. Analysis and Conclusions
In Department of Health and Human Services, Region V, Chicago, Illinois, 26 FLRA 460, 467 n.3 (1987), rev'd as to other matters sub nom. FLRA v. Department of Health and Human Services, Region V, Chicago, Illinois, No. 87-1147 (D.C. Cir. Aug. 9, 1990), the Authority adopted a Judge's decision that:
[A]n Administrative Law Judge is not endowed with power to disregard precedents and principles once established by the Authority. While the Authority may, within its sound discretion and subject to review by the circuit courts, reexamine its policies and interpretations which it senses are no longer apposite or possibly erroneous, an Administrative Law Judge, no matter what his personal inclination might be, has no such power. Where the Authority determines that it will reexamine and change a precedent, the Administrative Law Judge is obligated to give the resulting principles conscientious effect as the applicable law until abandoned or modified. Any application otherwise would constitute a revision of statutory interpretation which is contrary to responsible administration of the Statute.
In this case, the Judge disregarded these principles. Despite clear precedent, which the Judge recognized, that it is an unfair labor practice for an agency to refuse to negotiate about proposals which are substantially identical to proposals previously found to be negotiable by the Authority, the Judge recommended the dismissal of the complaint in this case. For the following reasons, we reject his recommendation.
In Decision on Petition for Amendment of Rules, 23 FLRA 405, 407 (1986), affirmed sub nom. National Labor Relations Board Union v. FLRA, 834 F.2d 191 (D.C. Cir. 1987), the Authority held that:
Sections 2423.5 and 2424.5 of the Authority's Rules and Regulations provide, in pertinent part, that where a labor organization files an unfair labor practice charge which involves a negotiability issue and also files a petition for review of the same negotiability issue, it is required to choose which procedure to pursue first. Cases which involve only an agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained, and which do not involve alleged unilateral changes in conditions of employment, must be processed exclusively under the negotiability procedures in part 2424 of the Authority's Rules and Regulations. In our view, these regulations are consistent with the language of sections 7117 and 7118 of the Statute, which specify separate procedures for resolving negotiability and unfair labor practice cases, respectively. They are also consistent with the legislative history of the Statute, which indicates that Congress considered but rejected a provision which would have required all negotiability disputes to be resolved in unfair labor practice proceedings.
Unfair labor practice remedies are available in appropriate refusal to bargain situations, such as (1) where the refusal to negotiate is accompanied by unilateral changes in conditions of employment; and (2) where an Agency refuses to bargain over a proposal substantially identical to one which the Authority has previously determined to be negotiable under the Statute.
(Footnote and citations omitted.)
In this case, the Respondent declared nonnegotiable a number of proposals involving the pay and fringe benefits of teachers. Some of the proposals were different from those found negotiable in Fort Bragg, and some of the proposals involved issues not dealt with in Fort Bragg. Therefore, the Union first sought a negotiability determination with respect to its proposals. After the resolution of the negotiability appeal in Fort Stewart, the General Counsel issued a complaint alleging that only two of the proposals declared nonnegotiable by the Respondent were substantially similar to proposals found to be negotiable in Fort Bragg.
Not all of the Union's proposals were alleged to be substantially similar to proposals previously found to be negotiable by the Authority. Therefore, the issues resulting from the Respondent's allegations of nonnegotiability were not only ULP issues. After the "pure" negotiability issues were decided in Fort Stewart, the Union pursued its remaining contentions with respect to the "pure" unfair labor practice question as to whether the two remaining proposals were substantially similar to those previously found negotiable in Fort Bragg. That is the issue in this case. Under these circumstances, we find that the Union acted consistent with sections 2423.5 and 2424.5 of the Authority's Rules and Regulations. In addition, we conclude that there is no reason for changing the Authority's Rules and Regulations concerning the processing of dual negotiability appeals and unfair labor practice charges involving related matters.
In Veterans Administration (Washington, D.C.) and Veterans Administration Hospital (Brockton, Massachusetts), 35 FLRA 188 (1990) (Brockton VA Hospital), we dealt with the Judge's concern that the Regulations appear to allow a party an opportunity to litigate the same issue twice. We concluded that:
[N]othing in the Authority's Regulations concerning a party's election to proceed under an unfair labor practice proceeding or a negotiability proceeding supports a conclusion that a party may litigate the same issues in both proceedings. Rather, the procedures enable the filing party to pursue in a second proceeding any issues which are unresolved after the first proceeding. In this regard, certain issues may be resolved only in an unfair labor practice or a negotiability proceeding. For example, allegations that a proposal is nonnegotiable because it conflicts with an agency regulation for which there is a compelling need must be resolved in a negotiability proceeding. Similarly, allegations that a party has no duty to bargain over a proposal (apart from allegations that a proposal itself is nonnegotiable) may not be resolved in a negotiability proceeding. Where cases involve only an agency's allegation that a proposal is nonnegotiable and do not involve actual or contemplated changes in conditions of employment, these cases must be resolved in a negotiability proceeding.
In cases which involve issues which may be resolved in only one forum as well as other issues which may be resolved in both, the selection procedure enables a union to determine which issues will be resolved first. Unresolved issues may then be litigated in the second proceeding. Only in cases where all issues may be resolved in an unfair labor practice proceeding (such as a case involving a change in conditions of employment where an agency alleges both that it has no duty to bargain over a proposal and that a proposal is nonnegotiable for reasons other than compelling need) would a union possibly be encouraged to pursue unfair labor practice procedures instead of negotiability procedures. Even in that situation, however, a union may choose to utilize a negotiability proceeding for various reasons, including the assurance that it can obtain a decision from the Authority as compared to the possibility that the General Counsel may decide not to issue an unfair labor practice complaint.
Id. at 195-196 (citations omitted).
Our decision here is consistent with the requirements of Brockton VA Hospital. The issue in this case is whether Proposals 1(F) and 1(J), declared nonnegotiable by the Respondent, were substantially similar to proposals previously held to be negotiable by the Authority. That issue was not resolved in the negotiability determination in Fort Stewart. Therefore, our decision herein is limited to the question of whether the Respondent engaged in bad faith bargaining, a different issue from those resolved in Fort Stewart.
Specifically, the Judge found, and we agree, that the two proposals "were substantially identical" to proposals found negotiable in Fort Bragg. Judge's Decision at 3. The Authority has held that an agency violates section 7116(a)(1) and (5) of the Statute if it refuses to bargain over a proposal that is substantially identical to a proposal the Authority has previously determined to be negotiable. Internal Revenue Service, 32 FLRA 57, 58 (1988); Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981), affirmed sub nom. Department of the Air Force, United States Air Force Academy v. FLRA, 717 F.2d 1314 (10th Cir. 1983).
In its various pleadings, the Respondent has raised a number of defenses to its refusal to bargain about the two proposals in this case. These included the Respondent's contentions that the proposals (1) do not concern conditions of employment as defined in section 7103(a)(14) of the Statute, (2) interfere with the Respondent's right to determine its budget under section 7106(a)(1), and (3) violate Federal statutes, Agency regulations having the force and effect of law, and an Agency regulation for which a compelling need exists. These defenses were raised by the Respondent in the negotiability proceedings in Fort Bragg and Fort Stewart, however, and, consistent with Brockton VA Hospital, these issues may not be relitigated in this unfair labor practice case.
Moreover, we reject the Respondent's assertion that it did not violate the Statute because its assertion of nonnegotiability was based, in part, on an argument (the legislative history of the Statute as it relates to the definition of conditions of employment) that was not considered by the Authority in Fort Bragg. We conclude, instead, that a respondent acts at its peril when it refuses to negotiate about a proposal which is substantially identical to a proposal previously found negotiable, without regard to whether a respondent raises "new" or "old" arguments. To hold otherwise, in our view, would undermine the collective bargaining process by encouraging agencies to continue the litigation of negotiability issues.
Of course, if the Respondent had prevailed on any basis in the negotiability proceeding, its conduct would not be found violative of the Statute. The Respondent did not, however, prevail in the negotiability proceeding. Accordingly, the fact that its assertion of nonnegotiability was based, in part, on an argument not considered by the Authority in Fort Bragg does not provide a defense for the Respondent's unlawful conduct in this case. Compare Adjutant General, State of Ohio, Ohio Air National Guard, Worthington, Ohio, 21 FLRA 1062, 1067 ("[W]hile an agency acts at its peril when it refuses to negotiate on proposals similar to proposals previously found negotiable by the Authority, an unfair labor practice will not be found where subsequently established law supports the agency's position.").
Further, the Respondent's request that we await the outcome of its appeal of the Authority's decision in Fort Stewart before we decide the unfair labor practice in this case is moot. In Fort Stewart Schools v. FLRA, 110 S. Ct. 2043 (1990), affirming 860 F.2d 396 (11th Cir. 1988), the Supreme Court affirmed the Authority's decision in Fort Stewart that various proposals, including the two involved here, are negotiable.
The Respondent's Motion to Dismiss the Complaint also contended that its refusal to bargain did not violate the Statute because it was directed by the Agency not to negotiate concerning any pay and fringe proposals. In support of its contention, the Respondent submitted various Agency directives requiring it to refuse to negotiate concerning any pay and fringe proposals pending the outcome of appellate litigation challenging the Authority's determinations that such matters are negotiable. The General Counsel asserted that the complaint was broad enough to encompass both the Agency and the Respondent.
We conclude that the Respondent is the only entity named in the complaint. The term "Department of the Army," used in the complaint and title in this case, merely locates the organizational placement of the Respondent. However, in U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, San Francisco, California, 33 FLRA 429, 432 (1988), the Authority held that where, as here, "agency management at a higher level is not a named respondent, agency management at a subordinate level will be held to have violated the Statute, even where subordinate level management was merely following orders." We conclude, therefore, that although Agency management was not named as an independent respondent in the complaint in this case, the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over the Union's proposals, even if its refusal was directed by Agency management. Under these circumstances, we need not reach the question of whether the Agency directed the Respondent to take a particular position regarding the Union's proposals.
Under these circumstances, where we have rejected the Respondent's defenses against the contention it committed an unfair labor practice, we grant the General Counsel's Motion for Summary Judgment and conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute when it failed to negotiate with the Union about Proposals 1(F) and 1(J), which are substantially identical to proposals found negotiable in Fort Bragg.
The General Counsel contends that an appropriate remedy in this matter would "include a cease and desist order, a notice posting and an affirmative order directing Respondent to negotiate the Union's proposals and giving any agreement reached retroactive effect." Brief in Support of its Exceptions at 9. We agree with the General Counsel that, consistent with the Authority's remedial authority, a retroactive bargaining order is appropriate in this case.
A retroactive bargaining order is appropriate to remedy a refusal to bargain over a proposal that has previously been found negotiable by the Authority. See generally National Treasury Employees Union v. FLRA, No. 87-1165 (D.C. Cir. Aug. 14, 199