38:0989(83)CA - - Treasury, Customs Service, Washington, DC and Northeast Region, Boston, MA and NTEU and NTEU Chapter 133 - - 1990 FLRAdec CA - - v38 p989

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38:0989(83)CA
The decision of the Authority follows:


38 FLRA No. 83

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE TREASURY

CUSTOMS SERVICE

WASHINGTON, D.C.

AND

CUSTOMS SERVICE

NORTHEAST REGION

BOSTON, MASSACHUSETTS

(Respondents)

and

NATIONAL TREASURY EMPLOYEES UNION

AND

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 133

(Charging Parties)

1-CA-80126

DECISION AND ORDER

December 14, 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 Union to the attached Administrative Law Judge's decision. The Respondent filed an opposition to the Union's exceptions. Additionally, the General Counsel filed cross-exceptions to the Judge's decision.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to negotiate with the Union concerning the impact and implementation of the Respondent's decision to relocate its Northwest Region office. The Judge found that the Respondent's conduct violated the Statute and directed the Respondent to negotiate with the Union, on request.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's decision, and the entire record, we adopt the Judge's findings, conclusions and recommended Order, as modified below.

II. Background

The record indicates that on June 26, 1987, the Respondent notified the Union that the regional office would relocate on July 19, 1987. The Union was requested to, and did, submit proposals on July 8 with regard to the move. The Union also requested that the move be held in abeyance pending completion of negotiations. However, the relocation took place as scheduled. At the unfair labor practice hearing in this matter, the General Counsel and the Respondent stipulated that the move was accomplished on July 19, 1987 "because of an overriding exigency which existed at that time." Transcript of Proceedings at 15. The parties also stipulated that because of the overriding exigency, negotiations continued after the date of the move.

On July 22, 1987, the Union requested that the parties meet to bargain. The Respondent indicated that it was not prepared to meet at that time. Subsequently, on September 24, 1987, the parties conducted their sole bargaining session. At that time, the Respondent provided the Union with counterproposals, and also indicated agreement with several of the Union's proposals. General Counsel Exhibit 4. The Union then provided counterproposals to the Respondent, in which the Union agreed with several of the Respondent's counterproposals. General Counsel Exhibit 6. The parties agreed to conduct another bargaining session on October 14. That bargaining session was cancelled by the Respondent on October 13.

Following cancellation of the October session, the Union made several requests to resume bargaining with the Respondent. Each time, the Union was advised that the Respondent would notify the Union as to when bargaining could resume. The Respondent never so notified the Union, however. The Union ceased requesting negotiations on December 31, 1987. No attempt was made thereafter by the Respondent to resume bargaining.

The record also reveals that the management representative, with whom the Union had been dealing with regard to the office relocation, was reassigned in November 1987. Other management representatives were assigned labor-management relations responsibilities involving the Union but, as noted above, the Respondent never notified the Union as to when bargaining could resume over the office relocation.

III. Administrative Law Judge's Decision

The Judge found that the Respondent's conduct in failing to resume negotiations with the Union violated the Statute. The Judge stated that the Respondent had a legitimate basis for cancelling the October 14 bargaining session, but that it had made no efforts thereafter to fulfill its statutory bargaining obligations and, instead, "virtually ignored the Union." Judge's Decision at 4. The Judge, rejected, in this regard, the Respondent's assertions that it did not resume negotiations because: (1) management had a heavy workload; (2) the filing of the unfair labor practice charge and issuance of the complaint warranted delay in responding to the Union; (3) the Union evidenced an intention not to resume negotiations by failing to contact management after December 31, 1987; (4) the Union expressed a lack of desire to complete negotiations by originally agreeing to delay negotiations until September 24; and (5) the Respondent was willing to bargain.

To remedy the unfair labor practice, the Judge directed the Respondent to bargain with the Union, on request, concerning the procedures to be observed in relocating the employees as well as appropriate arrangements for employees adversely affected by the relocation. The Judge discussed, but rejected, the Union's request for a retroactive bargaining order. The Judge noted that issues regarding retroactive bargaining orders were then pending before the United States Court of Appeals for the District of Columbia Circuit, on a petition for rehearing en banc, in National Treasury Employees Union v. FLRA, 856 F.2d 293 (D.C. Cir. 1988) (NTEU).

IV. Positions of the Parties

A. The Union's Exceptions

The Union argues that, consistent with the court's decision in NTEU, the Judge's refusal to grant a retroactive bargaining order is contrary to law. The Union argues that under the Statute, retroactive bargaining orders are the "expected" remedy in refusal to bargain cases. Union's Exceptions at 5. The Union also argues that a prospective bargaining order "is an inadequate method of addressing the effects on unit employees of changes unilaterally implemented by an activity." Id. at 6.

B. The Respondent's Opposition

The Respondent argues that the Judge's prospective bargaining order is not contrary to law and that the Judge properly exercised his discretion in fashioning an appropriate remedy in this case. The Respondent also argues that the Union's reliance on NTEU is misplaced.

C. The General Counsel's Cross-Exceptions

The General Counsel excepts only to that portion of the Judge's decision providing that the Notice should be signed by the Respondent's District Director. The General Counsel contends that the Regional Commissioner of the Respondent's Northeast Region should be required to sign the Notice because the change in working conditions involved the move of the Respondent's Northeast Region office and the bargaining unit employees located there.

V. Analysis and Conclusions

In agreement with the Judge, and in the absence of exceptions, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute.

We also agree with the Judge's recommendation of a prospective bargaining remedy. As noted by the Judge, the matter of retroactive bargaining orders, as discussed in NTEU, was then pending on a petition for rehearing en banc. The court's decision en banc subsequently was issued in National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc) (NTEU II). The court found, as relevant here, that the Authority has broad discretion to fashion appropriate remedies for unfair labor practices and, with regard to retroactive bargaining orders, the Authority is empowered under section 7118(a)(7) of the Statute to order parties to bargain without also requiring that whatever agreement is reached be given retroactive effect.

In this case, we conclude that a prospective bargaining order is appropriate to remedy the Respondent's violation of the Statute. The record establishes that the parties bargained, to some extent, and reached agreement over various proposals and counterproposals that were offered. As to matters concerning which the parties have not bargained, our remedy would not preclude the parties from giving retroactive effect to any agreement reached. In addition, a prospective bargaining order provides the parties with the flexibility to determine whether, and with regard to which matters, retroactivity best meets their needs. With respect to the latter point, we note that the parties agreed to bargain after the relocation and that additional impact matters affecting bargaining unit employees may have arisen since that time.

Having determined that a prospective bargaining order is appropriate in this case, we nevertheless take this opportunity to address the Judge's statement that, in the Authority's view, "mandatory retroactivity is generally detrimental to the bargaining process." Judge's Decision at 7. Contrary to the Judge's view, we find nothing in previous Authority decisions holding that, as a general matter, retroactive bargaining orders are undesirable. Moreover, to the extent that previous Authority decisions have imposed retroactive bargaining orders in certain categories of cases only, those decisions should not be read as indicating that retroactive bargaining orders may not be appropriate in other cases. It is clear, in this regard, that "Congress quite directly entrusted the Authority, . . . with the responsibility to 'take any remedial action it considers appropriate to carry out the policies" of the Statute. NTEU II, 910 F.2d at 968 (emphasis in original) (citation omitted). Consistent with this responsibility, we will continue to examine, and fashion, remedies in individual cases, including retroactive bargaining orders, appropriate to effectuate the policies and purposes of the Statute. See, for example, Department of Defense Dependents Schools, Mediterranean Region, Madrid, Spain, 38 FLRA No. 66 (1990), slip op. at 5 (Authority ordered "retroactive application where possible in order to fully remedy [r]espondent's unlawful activity.").

Finally, we agree with the General Counsel's unopposed request that the remedial Notice be signed by the Regional Commissioner of the Respondent's Northeast Region, rather than by the District Director. The unlawful conduct occurred at the Northeast Region and involved a refusal to bargain with the Union concerning the relocation as it affected bargaining unit employees located there. In these circumstances, it is consistent with the nature and purposes of the remedial Notice that the Regional Commissioner be designated to sign the Notice. See, for example, Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 1230 (1990).

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Customs Service, Washington, D.C., and U.S. Customs Service, Northeast Region, Boston, Massachusetts, shall:

1. Cease and desist from:

(a) Failing and refusing to meet and negotiate with the National Treasury Employees Union and National Treasury Employees Union, Chapter 133, the exclusive bargaining representative of its employees, concerning the procedures which it will observe in exercising its authority to relocate the Northeast Region office and concerning appropriate arrangements for bargaining unit employees adversely affected by the relocation.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Upon request, negotiate in good faith with the National Treasury Employees Union and National Treasury Employees Union, Chapter 133, the exclusive bargaining representative of its employees, concerning the procedures it will observe in exercising its authority to relocate the Northeast Region office and concerning appropriate arrangements for employees adversely affected by the relocation.

(b) Post at the Northeast Region Office in Boston, Massachusetts, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Regional Commissioner, 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 with any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to meet and negotiate with the National Treasury Employees Union and National Treasury Employees Union, Chapter 133, the exclusive bargaining representative of our employees, concerning the procedures we will observe in exercising our authority to relocate the Northeast Region Office and concerning appropriate arrangements for bargaining unit employees adversely affected by the relocation.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request, negotiate in good faith with the National Treasury Employees Union and the National Treasury Employees Union, Chapter 133, the exclusive bargaining representative of our employees, concerning the procedures we will observe in exercising our authority to relocate the Northeast Region office and concerning appropriate arrangements for bargaining unit employees adversely affected by the relocation.

__________________________________
(Activity)

Dated:__________ By:_________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions with this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region I, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston,