39:1431(123)CA - - Justice, INS, El Paso District Office and AFGE Local 1210 - - 1991 FLRAdec CA - - v39 p1431



[ v39 p1431 ]
39:1431(123)CA
The decision of the Authority follows:


39 FLRA No. 123

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES DEPARTMENT OF JUSTICE

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE

EL PASO DISTRICT OFFICE

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1210

(Charging Party)

6-CA-70213

(34 FLRA 1035 (1990))

ORDER DENYING IN PART, AND GRANTING IN PART,

MOTION FOR RECONSIDERATION AND MODIFYING DECISION

March 22, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a motion by the Respondent for reconsideration of the Authority's decision in United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 34 FLRA 1035 (1990). The General Counsel filed an opposition to the Respondent's motion. For the reasons discussed below, the motion for reconsideration is denied in part and granted in part.

II. The Authority's Decision in 34 FLRA 1035

In 34 FLRA 1035, the complaint alleged that the Respondent had violated the Statute by unilaterally implementing 15 memoranda effecting changes in working conditions that it had issued to bargaining unit employees. The Authority dismissed the allegations as to the memoranda identified as Jt. 5 and 12. The Authority found, however, that the Respondent's implementation of the changes in working conditions effected by 13 of the memoranda identified as Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, 23, and 27 violated the Statute because the Respondent failed to provide the Charging Party (the Union) with proper notice of the changes set forth in those 13 memoranda and refused the Union's request to bargain over the impact and implementation of the changes.

The Authority ordered the Respondent to cease and desist from unlawfully refusing to bargain and to: (1) rescind the changes set forth in 12 of the 13 memoranda and revert to the practices in effect prior to issuance of the memoranda;(1) (2) rescind any admonishments or other disciplinary actions taken against employees for failure to comply with the changed requirements of the 13 memoranda; and (3) upon request, bargain with the Union about the appropriate arrangements for any employees adversely affected by the changes.

We deny the motion for reconsideration as to the Authority's conclusion that the Respondent violated the Statute by implementing the memoranda that are the subject of the motion, and as to the conclusion that a status quo ante remedy is warranted. However, we grant the motion for reconsideration as to a portion of the remedy and, accordingly, amend and modify the Authority's remedial order.

III. Positions of the Parties

A. Motion for Reconsideration

The Respondent contends that, under section 2429.17 of the Authority's Rules and Regulations, extraordinary circumstances exist warranting reconsideration of portions of the Authority's decision in 34 FLRA 1035. The motion requests reconsideration as to 9 of the 13 memoranda on the grounds that: (1) the Authority improperly ruled on memoranda Jt. 2, 6, 10, and 13 because the Respondent did not file exceptions as to those 4 memoranda; (2) the Authority's conclusions as to memoranda Jt. 3, 14, 16, 20, and 21 "are based on an application of the Statute which is flatly inconsistent with the Authority's own case law;" (3) the decision as to memorandum Jt. 20 exceeded the Authority's statutory powers; (4) the Authority's conclusion that a status quo ante remedy is warranted as to those 5 memoranda is "derived from an alleged mis-perception by the [Respondent] regarding the scope of the remedy [that] is flatly contradicted by the arguments [the Respondent] presented;" and (5) the Authority's order went beyond the Judge's recommended order, thus raising a question of law that can only be dealt with by granting reconsideration to allow the Respondent an opportunity to respond to the Authority's action. Respondent's Motion For Reconsideration (Motion) at 1-2; and Respondent's Brief in Support of Motion for Reconsideration (Respondent's Brief) at 1-2.

The Respondent's position as to each of these issues is considered below in the separate discussion of the issues.

B. General Counsel's Opposition

The General Counsel argues that the Respondent's motion for reconsideration should be denied, stating only that the motion fails to establish grounds warranting reconsideration because the motion simply argues with the merits of the Authority's decision.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. With the exception of a portion of the remedial order dealing with disciplinary action, we conclude that the Respondent has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 34 FLRA 1035.

A. Preliminary Matter

In the absence of exceptions as to Jt. 15 and 19, the Authority adopted the Judge's conclusions that the Respondent violated the Statute and adopted the Judge's recommended order. As to Jt. 5 and 12, the Authority reversed the Judge's conclusions and dismissed the allegations of the complaint. As to Jt. 23, the Respondent admits in its motion for reconsideration that it inadvertently filed exceptions to the Judge's decision. As to Jt. 27, the Authority ordered the Respondent to bargain about the impact and implementation of Jt. 27, but did not order the memorandum to be rescinded. The Respondent's motion does not challenge the Authority's decision as to those memoranda.

B. The Motion for Reconsideration as to Memoranda Jt. 2, 6, 10, and 13 Is Denied

In 34 FLRA at 1039, the Authority adopted the Judge's findings, conclusions, and recommended order as to memoranda Jt. 2, 6, 10, and 13, stating that "[t]he Respondent's exceptions as to those memoranda do not state any grounds in support of the exceptions and do not, therefore, satisfy section 2423.27(a)(3) of our Regulations[.]" 34 FLRA at 1039.

In its motion for reconsideration, the Respondent alleges that the Authority had no jurisdiction to pass on memoranda Jt. 2, 6, 10, and 13 because the Respondent did not file exceptions to the Judge's decision as to those memoranda. The Respondent states that "[w]e have re-examined the brief the [Respondent] submitted to see if some inadvertent reference was made to these other findings which may have served to mislead the Authority, but have found no such reference." Respondent's Brief at 2-3. The Respondent states that it "did erroneously" except to the Judge's findings as to memorandum Jt. 23, but that "this error does not serve to explain the Authority's action in treating the [Respondent's] exceptions as if they were filed with respect to all the memoranda save Nos. 15 and 19." Id. at 3.

In its Brief in Support of Exceptions to the Decision of the Administrative Law Judge at 4, the Respondent stated that it "excepts to all of the 'discussion and conclusions of law' after the first paragraph on page 16 except for those pertaining to Memoranda Jt. 15 and 19." The Judge's conclusions as to all 15 memoranda, including memoranda Jt. 2, 6, 10, and 13, come after the first paragraph on page 16 of his decision. Accordingly, we find no merit in the Respondent's allegation that it did not file exceptions to the Judge's decision as to memoranda Jt. 2, 6, 10, and 13. We deny the Respondent's motion for reconsideration of our decision as it pertains to these memoranda.

C. The Motion for Reconsideration as to Memoranda Jt. 3, 14, 16, 20, and 21 Is Denied

As to memoranda Jt. 3, 14, 16, 20, and 21, the Respondent alleges that the Authority should reconsider the merits of its decision. Specifically, the Respondent alleges that: (1) the Authority's conclusions, that the implementation of memoranda Jt. 14, 16, and 20 changed conditions of employment of bargaining unit employees, are inconsistent with Authority precedent; (2) even if the implementation of memoranda Jt. 14, 16, and 20 resulted in such changes, the Authority's conclusions that the effects of the changes were more than de minimis are inconsistent with Authority precedent; (3) that the Authority's conclusions that the results of the changes effected by the implementation of memoranda Jt. 3 and 21 were more than de minimis are inconsistent with Authority precedent; and (4) as to memorandum Jt. 20, the Authority's finding and order exceeded the Authority's statutory power because it interferes with the right of management to bring criminal charges against employees.

We have considered the Respondent's motion for reconsideration. The Respondent disagrees with the determinations as to the weight and sufficiency of the evidence made by the Judge and by the Authority, disputes the rationale of those determinations, and gives further arguments and citations in support of its allegations. However, we find nothing in the motion and supporting brief that differs from the arguments contained in the Respondent's brief to the Judge and in its exceptions to the Judge's decision on the same issues presented by the motion.(2) In short, we find that the motion for reconsideration as to these issues raises nothing that was not previously considered and rejected by the Judge and the Authority. The motion does not establish extraordinary circumstances warranting reconsideration of the Authority's basic decision as to these memoranda.

D. The Motion for Reconsideration as to the Status Quo Ante Remedy Is Denied in Part and Granted in Part

Except as to memorandum Jt. 27, the Authority in 34 FLRA 1035 found that a status quo ante remedy was warranted. That is, the Authority directed that if requested to do so by the Union, the Respondent should rescind the changes set forth in the memoranda. In rejecting the Respondent's arguments that such a remedy would impair the efficiency and effectiveness of critical Agency operations, the Authority stated that the "assumption underlying [Respondent's] arguments" that rescission would leave management with no enforceable policy was not valid. Id. at 1047. Rather, the Authority concluded that rescission of the memoranda "means simply that management will return to the policies and procedures that existed before February 23, 1987." Id. at 1047. The Authority also noted that the Judge applied the factors set forth by the Authority in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI) for determining when a status quo ante remedy is warranted. Id.

The Respondent argues that the Authority should reconsider the granting of a status quo ante remedy because the Authority incorrectly attributed certain assumptions to the Respondent and because, in the Respondent's view, the Authority did not properly apply the factors of FCI to the circumstances of the case. Respondent's Brief at 17-24. The Respondent also notes that while the Authority indicated in its discussion that it would order rescission if requested by the Union, the Authority's order did not require such a request. Id. at 19.

We have considered the motion for reconsideration. We find no merit in the contention that the Judge and the Authority did not properly apply the factors of FCI. We find nothing in the motion and supporting brief that differs from the arguments contained in the Respondent's brief to the Judge and in its exceptions to the Judge's decision on the same issues. The Respondent's motion simply disagrees with the rationale of the Judge and of the Authority and disagrees with the conclusion that a status quo ante remedy is warranted in the circumstances of this case. The motion does not establish extraordinary circumstances warranting reconsideration of the Authority's conclusion that a status quo ante remedy is proper and the motion to that extent is denied.

However, the Respondent's motion notes a discrepancy between the Authority's discussion of its intended remedial order and the order itself. That is, in its discussion, the Authority stated that "[r]escission of the memoranda, if requested by the Union, means simply that management will return to the policies and procedures that existed before February 23, 1987." 34 FLRA at 1047 (emphasis supplied). The Authority did not, however, in its order or notice to employees, require that the Union request rescission of any memoranda.

While we disagree that this discrepancy affects our rationale, we will amend our remedial order and notice to employees to require that rescission of any memoranda is contingent upon a request for rescission by the Union.

E. The Motion for Reconsideration as to the Order to Rescind Disciplinary Actions Is Denied in Part and Granted in Part

In 34 FLRA 1035, the Authority, in addition to the Judge's recommended order, ordered the Respondent to "rescind any admonishments or other disciplinary actions taken against employees for failure to comply with the changed requirements" of the memoranda that it found to have been unlawfully implemented. The Respondent argues that the Authority's modification: (1) presents "an entirely new aspect of the remedy" about which the Respondent has not had the opportunity to present its views; and (2) exceeds the remedial powers conferred by the Statute. Respondent's Brief at 25. The Respondent requests, therefore, that the Authority consider the Respondent's arguments as to this portion of the remedial order. Id.

The Respondent argues that the order to rescind disciplinary actions is contrary to Authority precedent. Specifically, the Respondent cites the Authority's decisions in Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 32 FLRA 222 (1988) (Charleston Naval Shipyard), in which, according to the Respondent, the Authority found that a make whole remedy is not appropriate when an employee is disciplined or discharged for misconduct or any other nondiscriminatory reason; and Veterans Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA 278 (1987) (VA Medical Center), in which the Authority refused to order rescission of disciplinary actions that were based on insubordination. Id. at 25-27.

The Respondent also argues that the order to rescind disciplinary actions exceeds the Authority's statutory powers to the extent that a rescission would require the Respondent to nullify decisions on disciplinary actions already taken by the Merit Systems Protection Board (MSPB), by arbitrators, or by the Federal Circuit. Id. at 27-28. Finally, the Respondent argues, generally, that an order to rescind disciplinary actions in this case is not appropriate because none of the employees was shown to have been discriminated against, and because it would not be in keeping with the general remedial powers conferred on the Authority. Id. at 28-29.

First, we find that the Respondent's reliance on Charleston Naval Shipyard is misplaced, and the Respondent's characterization of the Authority's finding is inappropriately broad. The Authority in that case found that a make whole remedy is not appropriate "where the disciplinary action taken relates solely to employee misconduct independent of the" management action found to constitute the unfair labor practice. Charleston Naval Shipyard, 32 FLRA at 233. In this case, our order seeks to remedy disciplinary action taken against employee conduct that, absent the unilateral changes, would not have been proscribed conduct.

On the other hand, we find valid the Respondent's concern that our remedial order rewards an employee's misconduct, and we agree that our order is inconsistent with the Authority's holding in VA Medical Center. The Authority in VA Medical Center found in pertinent part that the agency had unlawfully implemented a new dress code. The Authority adopted the Administrative Law Judge's recommended order to rescind the dress code and to rescind the disciplinary actions initiated against employees as a result of the new dress code. However, the Authority modified the Judge's recommended order to exclude from the rescission disciplinary actions involving insubordination.

In our view, the underlying principle of VA Medical Center is that employees who could have otherwise been disciplined, whether for insubordination or other misconduct, are not entitled to have such disciplinary actions rescinded to the extent that such discipline would have been appropriate and lawful despite an agency's improper unilateral change. As the Respondent points out, "the [Authority's] Order here contains no such qualification[.]" Respondent's Brief at 27. We agree with the rationale of VA Medical Center in this regard. We find, therefore, that our remedial order should contain such a qualification, and we will modify our order to so provide.

However, we do not agree with the Respondent's argument that, as a general matter, we cannot order rescission of disciplinary actions taken as a result of an employee's failure to abide by changed requirements of the memoranda. As the Respondent impliedly acknowledges, the Authority rejected substantially similar arguments in VA Medical Center. We reject the Respondent's argument here, and find that when an issue is properly raised as an unfair labor practice under section 7116 of the Statute, decisions of arbitrators, of the MSPB, or of the Federal Circuit do not prevent the Authority from remedying any violation found.

Finally, we have considered the Respondent's general arguments concerning the need for a finding of discrimination in the Respondent's disciplinary actions and its arguments concerning the Authority's general remedial powers. We find that the Respondent's motion in this regard adds nothing to the other arguments as to the merits of the Authority's decision. Rather, the motion simply disagrees with the conclusions of the Authority and does not establish extraordinary circumstances warranting reconsideration of those conclusions. The motion is denied to that extent. See generally National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc).

V. Order

The Respondent's motion for reconsideration of the Authority's decision in 34 FLRA 1035 is granted for the limited purpose of clarifying and modifying the Authority's remedial order and notice to employees. The Authority's order is modified by substituting the following as paragraphs 2(a) and 2(b) of the order:

(a) Upon request by the American Federation of Government Employees, AFL-CIO, Local 1210, the exclusive representative of its employees, rescind the changes set forth in memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, and 23, issued on February 23 and 24, 1987, and revert to the practices which were in effect with respect to the matters covered by each memorandum prior to February 23, 1987.

(b) Upon request by the American Federation of Government Employees, AFL-CIO, Local 1210, the exclusive representative of its employees, rescind any admonishments or other disciplinary actions taken against employees for failure to comply with the changed requirements of memoranda Jt. 2, 3, 6, 10, 13, 14, 15, 16, 19, 20, 21, 23, and 27, except for those disciplinary actions that would have been appropriate and lawful despite the Respondent's improper