Air Force Flight Test Center, Edwards Air Force Base, California and American Federation of Government Employees, Local 3854, AFL-CIO

[ v55 p116 ]

55 FLRA No. 21

AIR FORCE FLIGHT TEST CENTER
EDWARDS AIR FORCE BASE, CALIFORNIA
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 3854, AFL-CIO
(Charging Party)

SF-CA-50232

_____

DECISION AND ORDER

January 15, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent, and a cross-exception filed by the General Counsel. The General Counsel filed an opposition to the Respondent's exceptions. The Respondent also filed a motion to strike the General Counsel's opposition and cross-exception as untimely, and the General Counsel filed an opposition to the Respondent's motion.

      The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by making changes to a skilled trades program for aircraft mechanics (the rivetized workforce program or the program) without first providing the Union with notice and an opportunity to bargain. The Judge found that the Respondent violated section 7116(a)(1) and (5) as alleged. The Judge also found that the Respondent had not unilaterally discontinued career-ladder promotions, a policy that entitles covered employees to noncompetitive promotions.

      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 Judge's Decision

A.     Background

      The facts are fully set out in the Judge's decision, and are only briefly summarized here. In 1990, the Respondent established a rivetized workforce program for certain civilian employees. [n2]  Employees in the sheet metal, plastics, and painting/corrosion shops could enter the program without competing for admission. Employees in the program would train and rotate among the three shops, with the goal of becoming proficient in all three related skills. The Respondent also required the employees to pass correspondence courses in each subject.

      The Respondent classified the position held by employees in the program as an Aircraft Structures Mechanic, WG-3801, with promotion potential to the WG-12 level. Employees entered the program noncompetitively and maintained their grade levels, none of which was above WG-11. Before April 1993, the Respondent promoted all employees who noncompetitively entered the program, and who successfully completed training as certified by their supervisors, to the WG-12 level.

      In April 1993, the Respondent modified the program to require competitive entry. The Respondent provided the Union with notice and an opportunity to bargain over the April 1993 change before implementation. It is undisputed that the Union's request to bargain over the April 1993 change was untimely. Four unit employees entered the program after April 1993.

      In December 1994, the Union filed a charge alleging that, during a November 1994 meeting with unit employees, the Respondent announced that it was ending its rotation of the program workforce through the three shops. The Union also claimed that the Respondent announced that it was halting its practice of promoting employees in the program to the WG-12 level upon their completion of training. None of the four employees who entered the program after April 1993 was promoted to WG-12. Based upon this charge, the General Counsel issued a complaint alleging that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing changes to the program without first notifying the Union and providing it with an opportunity to bargain. [ v55 p117 ]

B.     Judge's Decision

      At the hearing, the Respondent moved to dismiss the complaint, asserting that the only change to the program transpired in April 1993, rendering the Union's December 1994 charge untimely. The Judge denied the motion and found that, although the Respondent modified the program in 1993 to require employees to be competitively selected to enter the program, the Respondent's November 1994 decision to eliminate rotations and noncompetitive promotions was not a continuation of the changes made in April 1993. Consequently, the Judge concluded that the charge was timely. The Respondent also moved to dismiss the complaint based on the General Counsel's alleged failure to carry its burden of proof. The Judge denied the motion, stating that he would hear the Respondent's case and base his decision on the record evidence.

      The Judge granted the General Counsel's objection to the admission of certain testimony and evidence regarding an April 1995 audit of the program's positions conducted by the Respondent. The Judge ruled that such evidence was not relevant to the hearing, but rather addressed compliance matters, and was more appropriately raised and considered during compliance proceedings. However, the Judge granted the Respondent's offer of proof regarding the disputed evidence.

      The Judge framed the issue as whether the Respondent made changes to the program in November 1994, that triggered the Respondent's duty to bargain under section 7116(a)(1) and (5) of the Statute. Noting a dispute over what was said at the November 1994 meeting, the Judge credited the testimony of Union witnesses and found that the Respondent "announced the demise of rotations and promotions [to the WG-12 level] for the rivetized workforce" at the meeting. Judge's Decision at 7-8. The Judge also found that the program involved unit employees' conditions of employment, thus requiring the Respondent to give the Union notice and an opportunity to bargain over the changes.

      The Judge rejected the Respondent's assertion that the promotions were competitive and conditioned upon the availability of work. The Judge found that, pursuant to the Respondent's April 1993 memorandum modifying the program, the Respondent would determine whether there was sufficient work at the WG-12 level before selecting an employee for competitive entry into the program. The Judge further determined that, under the Respondent's policy from April 1993 through November 1994, "the only basis for denying a promotion to a mechanic in the program was that he has failed to demonstrate the ability to work with normal independence on complex projects." Id. at 10. Accordingly, the Judge found that the elimination of shop rotations and noncompetitive promotions to WG-12 was not a "continuation" of previous modifications, but a change in the conditions of employment. The Judge concluded that the Respondent violated its duty to bargain under the Statute by failing to provide the Union with notice and an opportunity to bargain over the changes in the rivetized workforce program.

      Despite these findings, the Judge did not conclude that the Respondent had unilaterally discontinued a career-ladder policy. The Judge found that employees who successfully completed the program were promoted to the WG-12 level through "competitive personnel actions under the Air Force's computerized system[.]" Id. at 8. The Judge recognized that employees may not have considered their promotions to be competitive. However, the Judge found that the Respondent's discussion of the program's operation, as set forth in the 1991 and 1993 memoranda, indicated that the WG-12 Aircraft Structure Mechanic positions "were to be filled competitively," and that promotions were to be made "pursuant to [certification] lists and other competitive procedures."  Id.

      Relying on the factors set forth in Federal Correctional Institution, 8 FLRA 604, 606 (1982) (FCI[n3] , the Judge determined that status quo ante relief was appropriate to remedy the violations here. Specifically, the Judge reasoned that retroactively promoting the four employees who entered the program after April 1993 to the WG-12 level would put these employees on equal footing with employees who entered the program before April 1993, and were subsequently promoted to WG-12.

      The Judge recommended that the Authority direct the Respondent to rescind the November 1994 changes to the program and to reinstitute the program as it existed as of April 1993. He also recommended that the Respondent be ordered to provide the Union with notice and the opportunity to bargain over the impact and implementation of any future changes to the program. [ v55 p118 ] Further, he recommended that the Respondent be ordered to promote all employees who successfully completed the program between April 1993 and November 1994, including the four employees named in the complaint, as of the date they completed the program and/or were recommended for promotion to WG-12 by their supervisor.

      Applying the Authority's approach set forth in Federal Aviation Administration, Washington, D.C., 27 FLRA 230 (1987) (FAA) for determining whether backpay remedies are appropriate for cases involving agency refusals to bargain over the impact and implementation of a decision, the Judge granted the General Counsel's request for backpay for the four employees who entered the program after April 1993. [n4]  The Judge recommended that the Authority order the Respondent to pay the four employees backpay with interest from the dates that they completed their training, and/or the dates that their supervisors submitted SF-52 forms requesting promotion of the employees to the WG-12 level.

III.          Preliminary Rulings

A.     The General Counsel's Opposition and Cross-Exception are Timely

      The Respondent has moved to dismiss the General Counsel's opposition and cross-exception as untimely. In response, the General Counsel claims that the Respondent has misconstrued the Authority's Regulations governing time limits, and that the General Counsel's submissions are timely.

      The Authority calculates the applicable 10-day time limit for filing oppositions to exceptions, and any contemporaneous cross-exceptions, from the date that the exceptions are served upon the opposing party. 5 C.F.R. § 2423.28(b) (1997). [n5]  When exceptions are served on a party by mail, 5 days are added to the 10-day limit for filing an opposition. 5 C.F.R. § 2429.22. However, the 10-day time limit and the 5-day mail extension are computed separately and, if either period would expire on a Saturday, Sunday, or a Federal legal holiday, the period is deemed not to expire until the end of the next workday. 5 C.F.R. § 2429.21(a).

      Here, the Respondent served its exceptions by mail on Thursday, February 15, 1996. Thus, both the 10-day time limit and the 5-day mail period would have expired on a weekend day and, with respect to the latter period, the next workday was Monday, March 4, 1996. As such, the General Counsel's filings of March 4, 1996 are timely. We therefore deny the Respondent's motion to dismiss the General Counsel's opposition and cross-exception.

B.     The Respondent's Exceptions Conform to the Authority's Regulations

      The General Counsel requests that the Respondent's exceptions be disregarded because they do not comply with the Authority's Regulations. [n6]  The General Counsel claims that the Respondent's failure to comply with applicable regulations hinders the formulation of an adequate response to the issues raised in the Respondent's filing.

      Section 2423.40(a)(1) of the Authority's Regulations  states that exceptions shall consist of "[t]he specific findings, conclusions, determinations, rulings, or recommendations being challenged[.]" Section 2423.40(a)(2) states, in pertinent part, that exceptions shall consist of "[s]upporting arguments, which shall set forth, in order: all relevant facts with specific citations to the record; the issues to be addressed; and a separate argument for each issue, which shall include a discussion of applicable law." To satisfy the regulatory requirements, "a party must both raise an exception and argue in support of that exception." See, e.g., Internal Revenue Service, Austin District Office, Austin, Texas, 51 FLRA 1166, 1176 (1996).

      The Respondent's filings satisfy the Authority's Regulations. Although the Respondent's individual "exceptions" were labeled "issues to be argued," its submission is entitled "Exceptions," and the issues set forth therein are considered as such. The General Counsel's [ v55 p119 ] suggestion that the Respondent may not file its exceptions and supporting brief in a single document is incorrect. The Authority's Regulations do not require parties to file two separate documents, or a supporting brief and separate exceptions. See 5 C.F.R. § 2423.26-28, 2423.40 (1997). The Respondent has set forth that portion of the Judge's decision to which it excepts with sufficient particularity to inform the Authority and the General Counsel of the basis of the Respondent's exceptions. Accordingly, we deny the General Counsel's request.

IV.     Positions of the Parties

A.     Respondent's Exceptions

      First, the Respondent excepts to the Judge's finding that the Union's charge was timely. The Respondent argues that the events giving rise to the charge occurred when it issued the memorandum in April 1993. Therefore, the Respondent asserts that the complaint was not based upon a charge filed within the 6-month period set forth in section 7118(a)(4)(A) of the Statute, and is thus untimely.

      Second, the Respondent excepts to the Judge's determination that the Respondent's audit was irrelevant to the proceeding. The Respondent contends that its offer of proof contained "extremely relevant" evidence. Exceptions at 16. In the Respondent's view, the audit proves that the suspension of rotations and failure to promote employees to the WG-12 level was the result of a lack of work, and that the remedy ordered by the Judge violates regulations covering the classification of employees.

      Third, the Respondent excepts to the Judge's finding that it made changes to the program in November 1994, without notifying the Union, claiming that the program continued to operate in the same manner as it had since its modification in April 1993. According to the Respondent, the Judge incorrectly concluded that the Respondent made two unilateral changes to the program in November 1994: (1) the suspension of employee rotations among the three shops; and (2) the elimination of noncompetitive promotions to the WG-12 level.

      With respect to the suspension of shop rotations, the Respondent asserts that this issue was not raised in the charge, the complaint, or the General Counsel's opening statement, but rather resulted from the Judge's "independent inquiry." Id. at 9. The Respondent maintains that a lack of available work prompted its actions, that the employees' rotations constituted an assignment of work under section 7106(a)(2)(A) of the Statute, and that "[a] drop-off in work requirements causing a suspension in rotations" does not trigger a duty to bargain. Id. at 12. The Respondent denies that the suspension of rotations eliminated the program or adversely affected employees.

      As to the elimination of noncompetitive promotions, the Respondent argues that the Judge incorrectly interpreted the April 1993 modification of the training program as "mandating automatic upgrades." Id. at 13. In support, the Respondent points to language in the April 1993 memorandum stating that, upon an employee's completion of the training program, management "may" submit that employee for promotion. Id. The Respondent also cites the Judge's finding that the program positions were not career-ladder positions as further proof that employees were not automatically given a promotion but had to compete for the WG-12 position. The Respondent asserts that the General Counsel failed to establish a prima facie case, and argues that the Judge should have dismissed the case when the General Counsel failed to offer into evidence an alleged tape of the November 1994 meeting.

      Finally, the Respondent contends that the Judge exceeded his authority by awarding status quo ante relief (i.e., rescinding the changes in the program for unit employees, and recommending retroactive promotions to WG-12 and backpay for affected employees). Even if a violation did occur, the Respondent argues that post-implementation bargaining is the only appropriate remedy. In the Respondent's view, the Office of Personnel Management has the sole authority for making classification determinations for the Federal workforce. The Respondent claims that an order retroactively promoting employees to the WG-12 level amounts to a classification of these positions by the Judge, and is therefore contrary to law. While recognizing that the Judge could properly remedy an unwarranted personnel action by ordering an agency to promote affected employees, the Respondent asserts that such a remedy would not apply here, because the employees were not performing duties at the WG-12 level as of November 1994, when the alleged changes occurred.

B.     General Counsel's Opposition

      With regard to the issue of timeliness of the charge, the General Counsel asserts that the Judge correctly determined that the Union filed the charge within permissible time limits.

      As to the Judge's evidentiary determinations, the General Counsel maintains that the Judge correctly rejected testimony and evidence regarding the audit. The General Counsel asserts that the audit was con- [ v55 p120 ] ducted in 1995 and thus has no bearing on the Respondent's decision in November 1994 to stop promoting employees in the program.

      The General Counsel submits that the Judge correctly concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally halting shop rotations and promotions to the WG-12 level. According to the General Counsel, the Respondent does not advance any substantive arguments that the Judge did not previously address. The General Counsel asserts that the Respondent is disputing the Judge's credibility findings, and maintains that the Authority should not overrule these findings unless a clear preponderance of all relevant evidence demonstrates that the determination was in error. Concerning the alleged tape recording of the November 1994 meeting, the General Counsel reasons that, even if this tape did exist, the testimony of witnesses at the hearing "is entitled to far more weight than any such hearsay evidence." General Counsel's Brief in support of Cross-Exception and Opposition at 15.

      Finally, the General Counsel asserts that the Respondent's claim that the Judge's retroactive promotions amount to a classification is "spurious," and asks that it be rejected. Id. at 18. The General Counsel maintains that the Judge correctly applied the factors set forth in FCI in determining that status quo ante relief was appropriate. The General Counsel asserts that a unilateral change in conditions of employment constitutes an unwarranted personnel action, and that the Authority may award backpay in such cases.

C.     The General Counsel's Cross-Exception

      Additionally, the General Counsel excepts to the Judge's failure to find that the Respondent unilaterally discontinued a career-ladder policy in violation of the Statute. The General Counsel notes that the Judge determined that under the April 1993 modification, employees in the program were entitled to noncompetitive promotion to WG-12 upon completing the requisite training. The General Counsel asserts that, through testimony, the Respondent conceded that the WG-12 position was "the culmination of a career ladder." Id. at 10. Citing National Federation of Federal Employees, Local 2052, 30 FLRA 797, 822 (1987), the General Counsel argues that the April 1993 modification, which provided for noncompetitive promotion of mechanics to the WG-12 journey level upon completion of requisite training, resulted in a career-ladder within the meaning of applicable Federal regulations. The General Counsel states that its "limited exception . . . in no way affects [the Judge's] otherwise proper findings of fact and conclusions of law" and is intended "to conform his findings of fact" to his conclusions of law. Id. at 9.

V.     Analysis and Conclusions

A.     The Charge Was Timely Filed

      Section 7118(a)(4)(A) of the Statute provides, in pertinent part, that: "[N]o complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority." The intent of this provision is to foster stable collective bargaining relationships and prevent the litigation of stale charges. See Equal Employment Opportunity Commission, Washington, D.C., 53 FLRA 487, 495 (1997).

      The Respondent's only assertion regarding the charge's timeliness is that the charge references changes in the program made by the Respondent following its April 1993 modification to the program, a modification for which the Respondent gave the Union notice and an opportunity to bargain. However, the charge, which was filed on December 13, 1994, arose from incidents alleged to have occurred in November 1994. We therefore conclude that the charge was timely filed. For the General Counsel to prevail on the merits, it must show that the November 1994 meeting modified conditions of employment from those set forth in the Respondent's April 1993 memorandum.

B.     The Judge Did Not Abuse His Discretion by Declining to Admit Evidence and Testimony Regarding the 1995 Audit, or by Declining to Draw Any Inference from the General Counsel's Failure to Produce a Tape of the November 1994 Meeting Allegedly in the General Counsel's Possession

      An administrative law judge has considerable discretion under the Authority's Regulations in determining the relevancy and admissibility of evidence. [n7]  Cf. Department of Veterans Affairs Medical Center, Denver, Colorado, 52 FLRA 16, 22 (1996). Nothing in the Respondent's offer of proof supports the conclusion that the Judge's decision to exclude the disputed evidence was improper. Since the 1995 audit was conducted after the alleged unilateral changes, its relevancy is not apparent. The focus of our inquiry is whether a change [ v55 p121 ] occurred in November 1994, that triggered the Respondent's duty to bargain. A snapshot of the Respondent's staffing needs taken at a point after the alleged change does not aid the Authority in its inquiry. In light of these factors, and given the broad discretion afforded the Judge under the Authority's Regulations, there is no basis for finding that the Judge abused his discretion in declining to admit into evidence a copy of the Respondent's 1995 audit of certain aircraft structure mechanic positions, or testimony relating to the audits. We therefore deny the Respondent's exception in this regard.

      Furthermore, we reject the Respondent's claim that the Judge should have relied upon a tape of the meeting, rather than witness testimony, in rendering his findings as to what was said at the meeting. The Respondent bases its claim on the direct testimony of a witness for the General Counsel (Sanchez-Orsini; Tr. at 199). However, the Judge did not reference this testimony in his decision. At the hearing, the Respondent neither proved the existence of the tape, nor moved for the Judge to compel the General Counsel to offer it into evidence. For these reasons, we conclude that the Judge committed no procedural error regarding the admissibility of evidence.

      Having resolved the procedural questions, we now turn to the substantive issue in this case, i.e., whether the Judge correctly resolved the allegations contained in the complaint.

C.     Analytical Framework

      Under section 7116(a)(1) and (5) of the Statute, agencies must give unions notice and an opportunity to bargain over the impact and implementation of any change in conditions of employment, provided that the change has more than a de minimis effect on unit employees' conditions of employment. U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Memphis, Tennessee, 42 FLRA 712, 713 (1991); see also American Federation of Government Employees, Local 940 and U.S. Department of Veterans Affairs, Philadelphia, Pennsylvania, 52 FLRA 1429, 1436 (1997). In cases alleging such violations, the Authority initially determines whether the General Counsel has proven the allegations in the complaint by a preponderance of the evidence, as required by section 2423.18 of the Authority's Regulations. [n8] 

D.     The Preponderance of the Evidence Shows that Respondent made a Unilateral Change in Conditions of Employment for Employees in the Program

      As a preliminary matter, we reject the Respondent's argument that the Judge was precluded from conducting his own "fact-finding" in this case. The Authority's Regulations require administrative law judges to inquire fully into the relevant and material facts concerning the subject matter of the hearing. 5 C.F.R. § 2423.19  [n9]  The Respondent has not shown that the Judge inquired into irrelevant or immaterial matters, or that the Judge relied on such matters in rendering his decision.

      Next, we find unconvincing the Respondent's assertion that the General Counsel's failure to raise the suspension of shop rotations in the complaint or its opening statement precluded the Judge from making a determination on this matter. Where a complaint is silent about specific issues that are later raised at the hearing, the Authority may still consider and dispose of those issues if the record shows they were fully and fairly litigated. Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Phoenix, Arizona and Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 421, 429 (1996). The test for full and fair litigation is whether the respondent knew what conduct was at issue and had a fair opportunity to present a defense. Id. See also U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 467 (1995).

      While the General Counsel's complaint and opening statement do not specifically reference the suspension of rotations, the General Counsel introduced testimony at the hearing that the Respondent announced the unilateral suspension of shop rotations during the November 1994 meeting. The context of the questions asked by the General Counsel demonstrates that this testimony was calculated to prove that the Respondent had changed its past practice of noncompetitive promotions for employees within the program. During direct and cross-examination, the Respondent sought to clarify whether the suspension of shop rotations was discussed at the November 1994 meeting, after which the Respondent discontinued the rotations. Tr. 136-37, 248-49, 336-37. Accordingly, the Respondent had sufficient notice of the allegation, and could fully litigate the issue before the Judge's determination on the merits. [ v55 p122 ]

      Furthermore, even if we were to find that the Respondent did not have sufficient notice of the allegation that shop rotations were suspended after the November 1994 meeting, we would nevertheless conclude that the elimination of noncompetitive promotions, by itself, is sufficient to support the Judge's conclusion that the Respondent made a unilateral change in conditions of employment for employees in the program in November 1994. [n10]  Specifically, the April 1993 memorandum modifying the program, and testimony explaining the intent of the modification (Tr. at 246-48), support the Judge's conclusion that "employees successfully completing the training would be noncompetitively promoted to the WG-12 level upon their supervisors' verification that they can work with normal independence on complex projects." Judge's Decision at 9-10 (quoting Respondent's Exhibit 2). [n11] 

      The Respondent acknowledges that a change in the program would trigger a duty to bargain, as evidenced by the fact that it provided the Union with an opportunity to bargain over changes to the program in April 1993. However, the Respondent contends that its actions in November 1994 were simply a continuation of the changes that it had announced in April 1993. Therefore, our review of the Judge's determination centers upon whether the Respondent announced at the November 1994 meeting that it was implementing changes to the program separate and apart from the changes that were implemented in April 1993. [n12] 

      In excepting to the Judge's determination that changes to the program occurred in November 1994, the Respondent is disputing the Judge's credibility determinations as to testimony regarding what was said at the November 1994 meeting. With respect to such credibility determinations, including that of witness demeanor, the Authority has recognized that only the judge has the benefit of observing the witnesses while they testify. Accordingly, the Authority attaches considerable weight to a judge's determinations based on demeanor. See U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, Washington, D.C., 54 FLRA 987, 1007 (1998) (NOAA); Redstone Arsenal Exchange, Army and Air Force Exchange Service, Redstone Arsenal, Alabama, 50 FLRA 51 (1994) ("[w]e will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect"). An examination of the record reveals no basis for reversing the Judge's credibility findings. The Respondent claims that witnesses for the General Counsel were not competent to testify regarding the technical aspects of classifying positions. However, the Judge relied on this testimony only to establish what was said at the November 1994 meeting, and what practices existed before and after the meeting, rather than the technical aspects of position classification.

      The preponderance of the evidence supports the Judge's conclusion that the Respondent announced in November 1994 that it had unilaterally ended the practice of promoting employees in the rivetized workforce program to the WG-12 level upon the completion of their training. Before November 1994, employees in the program were promoted to the WG-12 level after participating in training provided through shop rotations. It is undisputed, and the Judge found that prior to 1993, "all employees who voluntarily entered and successfully completed the rivet workforce training program were promoted . . . to the WG-12 level." Judge's Decision at 4. A 1993 memorandum and record testimony show that the Respondent modified the program so that employees were competitively selected for entrance into the program. Id. at 4, Respondent's Exhibit 2. However, as explained in Section V.E., infra at 16-18, once employees were in the program, the April memorandum [ v55 p123 ] assured the noncompetitive nature of promotion to the WG-12 level. [n13]  The Judge found, and it is undisputed, that the Respondent ceased this practice after the November 1994 meeting. Tr. at 349. Based upon testimony and the Respondent's acknowledgment that it did not provide the Union with notice and an opportunity to bargain over any changes to the program since April 1993, the preponderance of the evidence shows that the Respondent violated section 7116(a)(1) and (5) of the Statute when, in November 1994, it ended the practice of promoting employees in the rivetized workforce program to the WG-12 level upon the completion of their training.

      The Judge determined that, under the revised program, the sole reason for denying an employee promotion to the WG-12 level was for failure "to demonstrate the ability to work with normal independence on complex projects." Respondent's Exhibit 2. As the Judge noted, shop supervisors would certify an employee as successfully completing the training program once the employee "demonstrated the ability to perform independently and with sufficient skill every task listed by management on the training forms." Id. at 10 n.6. Management had already assessed the need for WG-12 level workers before an employee's entrance into the program. Respondent's Exhibit 2. As a result, the Respondent could not justify failing to promote an employee due to a lack of appropriate work. Id. at 10. Consequently, the Judge properly found that the Respondent could not eliminate noncompetitive promotions to the WG-12 level, "without informing the Union of that decision and providing an opportunity for negotiation." Id. at 11.

      For these reasons, we adopt the Judge's conclusion that the Respondent violated the Statute in November 1994 by unilaterally changing its rivetized workforce training and promotion program from the structure that had existed since April 1993 without first notifying the Union and providing the Union with an opportunity to bargain over the impact and implementation of the decision. [n14] 

E.     The Judge Erred in Concluding that Respondent Did Not Unilaterally Discontinue a Career-Ladder Policy Under Which Mechanics in the Program Were Entitled to Noncompetitive Promotion to the WG-12 Level

      A career-ladder promotion results from an agency's placement of an employee in a position for which satisfactory performance by the employee will assure noncompetitive promotions to the "target" pay grade for that position. U.S. Department of Health and Human Services, National Institute for Occupational Safety and Health, Cincinnati Operations, Cincinnati, Ohio and American Federation of Government Employees, Local 3840, 52 FLRA 217, 221 n.5 (1996). When an agency selects an employee for a career-ladder position, the agency is obliged to promote that employee on a noncompetitive basis at appropriate stages in the employee's career, up to the full performance level of the position, once the employee has met the requisite conditions for promotion.  Id.

      The record shows that, out of concern that the program's entrance requirements were not in conformity with merit principles, the Respondent issued the April 1993 memorandum, which stated that vacancies for entrance into the program were to be filled competitively. Judge's Decision at 4-5; Respondent's Exhibit 2. Once employees were in the program, however, the April 1993 memorandum assured the noncompetitive nature of promotions to the target grade. [n15]  A position classification specialist testified, without contradiction, that following the April 1993 modification to the program, "[w]hen management had determined that they needed another position at [the WG-12] level to do the work, then the intent was that they would, at that time, compete the selection into the rivetized position description." Tr. at 294. According to the specialist, employees entered the program at their current grade levels "targeted to the 12 level without having to do further competition down the road." Id. Further, the "summary data" provided by the Respondent shows that at least [ v55 p124 ] one employee (Hartung) who competitively entered the program was targeted for promotion to WG-12, and received a career-ladder promotion to WG-11 on March 20, 1994. Respondent's Exhibit 12 at 2. Id.  [n16]  Thus, the record demonstrates that the Respondent placed employees in career ladders to the WG-12 level when it selected them for the program under the April 1993 modification; promotions were "automatic" from that point, once the employee had demonstrated the required level of competency.

      However, the Judge relied upon language in the Respondent's 1991 and 1993 memoranda setting forth its procedures for filling the WG-12 positions and concluded that, after the 1993 modification, the Respondent continued to fill WG-12 positions pursuant to "cert." lists and other competitive procedures. Judge's Decision at 8 (referencing Respondent's Exhibits 2 and 7). In rejecting the General Counsel's claim that the Respondent violated the Statute by dismantling the career-ladder policy, the Judge found that, from the program's inception, WG-12 positions were to be filled competitively, even though employees were not aware that they were competing for the positions. Id.

      The preponderance of the evidence in the record supports the conclusion that the Respondent dismantled a career-ladder policy. Specifically, the Judge's conclusion is inconsistent with his finding that, under the 1993 modification, employees were to be "noncompetitively" promoted up to the WG-12 level. The Judge's conclusion is also inconsistent with the uncontroverted testimony of the Respondent's position classification specialist. Therefore, we find that the Judge erred in failing to conclude that the Respondent, by eliminating noncompetitive promotions to the WG-12 level, unilaterally discontinued its career-ladder policy as it applied to the program's positions. We therefore grant the General Counsel's cross-exception and conclude, consistent with the Judge's factual findings, that the Respondent unilaterally discontinued its career-ladder policy when it terminated its practice of promoting employees to the WG-12 level.

F.     The Judge's Remedy is Appropriate

1.     Status Quo Ante Relief

      The purpose of status quo ante relief is to place parties in the positions that they would have occupied had there been no unlawful conduct. Department of Veterans Affairs Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1580 (1996). The appropriateness of a status quo ante remedy is determined on a case-by-case basis, balancing the nature of a particular violation against the degree of disruption in government operations that would result from such a remedy. FCI, 8 FLRA at 606. As this case involves the Respondent's failure to bargain over changes to the program, it was appropriate for the Judge to apply FCI to determine whether status quo ante relief was warranted. See U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 84 (1997).

      As the Judge noted, a return to the status quo ante would not prohibit the Respondent from curtailing or eliminating the program at some future point; it would merely require the Respondent to reinstitute the program until the Respondent provides the Union with notice and an opportunity to bargain over the impact and implementation of changes to the program. Judge's Decision at 12-13. For the reasons stated, we adopt the Judge's determination that status quo ante relief was proper.

2.     Retroactive Promotions and Back Pay

      In excepting to the award of retroactive promotions and backpay, the Respondent concedes that the Judge could appropriately order such remedies in the case of an unwarranted personnel action. However, the Respondent asserts that the award is improper here because the affected employees did not perform work at the WG-12 level at the time of the November 1994 meeting. Also, the Respondent argues that the Judge's award amounts to a "classification" of the position. For the following reasons, we find that the Respondent's assertions are without merit.

      First, the Respondent had already determined, before placing the employees in their respective training positions, that sufficient work existed at the WG-12 level to support promotion of the employees. [n17]  The Aircraft Structures Mechanic position was already clas- [ v55 p125 ] sified as having a target level of WG-12. See Respondent's Exhibit 2. Accordingly, the Respondent's claim that the Judge classified the position at the WG-12 level is incorrect.

      Second, the preponderance of the evidence supports the Judge's finding that the only basis for denying an employee's promotion to the WG-12 level was the employee's failure to demonstrate the required proficiency. Two of the employees at issue (Hartung and Morehead) were certified by their supervisors as having the requisite skills to perform at the WG-12 level. The remaining two employees successfully completed training; one of them (Stevens) was one year into his rotations when the Respondent changed the program, and the other (Sanchez-Orsini) had just begun his shop rotations when the Respondent halted this practice. The Judge correctly found that the Respondent's suspension of the rotations prevented the two employees from completing the program.

      A government employee found to have been affected by an improper or unwarranted personnel action resulting in the withdrawal or reduction of pay, allowances or differentials may be made whole under the authority of the Back Pay Act, 5 U.S.C. § 5596(b)(1)(a). See U.S. Department of Health and Human Services and National Treasury Employees Union, 54 FLRA 1210 (1998) (DHHS). In determining that an award of backpay was warranted for the four employees in question, the Judge correctly applied the analytical framework set forth in DHHS, for determining whether backpay remedies are appropriate in cases involving an agency's refusal to bargain over impact and implementation. The unilateral elimination of noncompetitive promotions to the WG-12 level constituted an unwarranted personnel action that is appropriately remedied by retroactive promotions and backpay. [n18]  Accordingly, for the reasons stated, we adopt the Judge's conclusion that the remedy of backpay was appropriate.

VI.     Summary

      For the foregoing reasons, we:

1.     Deny the Respondent's request to dismiss the General Counsel's opposition and cross-exception as untimely.
2.     Deny the General Counsel's request to dismiss the Respondent's exceptions as failing to conform to Authority's Regulations.
3.     Deny the Respondent's exception to the Judge's ruling that the charge was timely.
4.     Deny the Respondent's exception to the Judge's ruling that the April 1995 audit was irrelevant to the case.
5.     Deny the Respondent's assertion that Judge should have granted its motion to dismiss for failure of the General Counsel failed to establish a prima facie case.
6.     Deny the Respondent's exception to the Judge's finding that it violated the Statute by unilaterally changing the program without first providing the Union with notice and an opportunity to bargain over the change.
7.     Grant the General Counsel's "limited" cross-exception and find, contrary to the Judge, that when the Respondent modified the program in April 1993, it created a career-ladder to WG-12 level that was subsequently discontinued in violation of the Statute.
8.     Order the Respondent to rescind the November 1994 change to the program, reinstitute the program as it existed as of April 1993, and provide the Union with notice and the opportunity to bargain over the impact and implementation of any future changes to the program.
9.      Deny the Respondent's exception to Judge's remedy awarding a status quo relief, retroactive promotions to WG-12 level, and backpay to the four affected employees named in the complaint.

VII.          Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Respondent shall:

      1. Cease and desist from:

           (a) Unilaterally implementing changes to the rivetized workforce program, including discontinuation of the practice of promoting rivetized employees to the WG-12 level upon completion of the rivetized training if they can work with normal independence on complex projects, without providing the American Federation of Government Employees, Local 3854, AFL-CIO, the exclusive representative of its employees, with notice [ v55 p126 ] and an opportunity to bargain over the impact and implementation of such changes in the future.

           (b) In any like or related manner, interfering with, restraining or coercing bargaining unit employees in the exercise of 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 Statute:

           (a) Rescind the changes to the rivetized workforce program which were implemented on or after November 1994, reinstitute the rivetized workforce program as it existed as of April 16, 1993, and provide the American Federation of Government Employees, Local 3854, AFL-CIO, the exclusive representative of bargaining unit employees, with notice and an opportunity to bargain over the impact and implementation of any changes in the future.

           (b) Promote to WG-12 the four employees (Thomas Stevens, Randolph Morehead, Julio Sanchez-Orsini, and Stephen Hartung) who successfully completed rivetized training between April 16, 1993, and November 1994, retroactive to the date that each completed his training and/or was recommended for promotion by his supervisor and provide the employees with backpay and interest in accordance with the Back Pay Act, 5 U.S.C. § 5596.

           (c) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. On receipt of such forms they shall be signed by the Commander 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.

           (d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, CA 94103, in writing within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Air Force Flight Test Center, Edwards Air Force Base, California, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT unilaterally implement changes to the rivetized workforce program, including discontinuation of the practice of promoting rivetized employees to the WG-12 level upon completion of the rivetized training if they can work with normal independence on complex projects, without providing the American Federation of Government Employees, Local 3854, AFL-CIO, the exclusive representative of bargaining unit employees, with notice and an opportunity to bargain over the impact and implementation of such changes in the future.

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

WE WILL rescind the changes to the rivetized workforce program which were implemented on or after November 1994, reinstitute the rivetized workforce program as it existed as of April 16, 1993, and provide the American Federation of Government Employees, Local 3854, AFL-CIO, the exclusive representative of bargaining unit employees, with notice and an opportunity to bargain over the impact and implementation of any changes in the future.

WE WILL promote to WG-12 the four employees (Thomas Stevens, Randolph Morehead, Julio Sanchez-Orsini, and Stephen Hartung) who successfully completed rivetized training between April 16, 1993, and November 1994, retroactive to the date that each completed his training and/or was recommended for promotion by his supervisor, and provide the employees with backpay and interest in accordance with the Back Pay Act, 5 U.S.C. § 5596.

      ________________________
(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 concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, San Francisco Region, whose address is 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is (415) 356-5000.


File 1: Authority's Decision in 55 FLRA No. 21
File 2: Opinion of Chair Segal
File 3: ALJ's Decision


Footnote # 1 for 55 FLRA No. 21 - Authority's Decision

   Chair Segal's concurring opinion is set forth at the end of this decision.


Footnote # 2 for 55 FLRA No. 21 - Authority's Decision

   The "rivetized workforce" is a concept originally developed by the Air Force for its military personnel. The program's objective is to accomplish certain tasks with fewer people by cross-training aircraft structural mechanics in several related skills, and assigning them as needed.


Footnote # 3 for 55 FLRA No. 21 - Authority's Decision

   FCI provides that, in determining whether a status quo ante remedy is appropriate for a particular violation of section 7116(a)(5) of the Statute, the Authority considers, among other things: (1) whether, and when, an agency notified the union concerning the change; (2) whether, and when, the union requested bargaining over procedures for implementing the change and/or appropriate arrangements for employees adversely affected by the change; (3) the willfulness of the respondent's conduct in failing to bargain; (4) the nature and extent of the impact upon adversely affected employees; and (5) whether, and to what extent, a status quo ante remedy would disrupt the respondent's operations. FCI, 8 FLRA at 606.


Footnote # 4 for 55 FLRA No. 21 - Authority's Decision

   In FAA, the Authority held that backpay awards to remedy an agency's refusal to bargain over impact and implementation must comply with the Back Pay Act, 5 U.S.C. § 5596.


Footnote # 5 for 55 FLRA No. 21 - Authority's Decision

   The instant exceptions were filed prior to October 1, 1997, the effective date of amendments to the Authority's Regulations. See 5 C.F.R. § 2423 (1997). The Authority's Order, however, is issued pursuant to 5 C.F.R. § 2423.40-41 under the Authority's revised Regulations, as these regulations apply to all unfair labor practice complaints pending after October 1, 1997. Unfair Labor Practice Proceedings: Miscellaneous and General Requirements, 62 Fed. Reg. 46175 (1997); clarifying, 5 C.F.R. Parts 2423 and 2429; 62 Fed. Reg. 40911 (1997). Notwithstanding the application of the revised Subpart D to unfair labor practice complaints pending after October 1, 1997, the Authority does not require parties to refile documents that were otherwise properly submitted under former regulations.


Footnote # 6 for 55 FLRA No. 21 - Authority's Decision

   As relevant here, there is no substantive difference between 5 C.F.R. § 2423.27 (1997), the former section of the Authority's Regulations cited by the General Counsel and in effect when it filed its brief, and the new, amended section, 5 C.F.R. § 2423.40.


Footnote # 7 for 55 FLRA No. 21 - Authority's Decision

   The pertinent section of the Authority's Regulations in effect at the time of the hearing, 5 C.F.R. § 2423.19(g), has been edited for clarity. The new provision has been renumbered as 5 C.F.R. § 2423.31(b). There has been no substantive change in the powers and duties of the Judge. See 62 Fed. Reg. 40914 (July 31, 1997); 62 Fed Reg. 28380 (May 23, 1997).


Footnote # 8 for 55 FLRA No. 21 - Authority's Decision

   This provision of the Authority's Regulations has since been renumbered as 5 C.F.R. § 2423.32. As relevant here, there was no substantive change in the Judge's authority as a result of the most recent amendment to the Authority's Regulations.


Footnote # 9 for 55 FLRA No. 21 - Authority's Decision

   This provision of the Authority's Regulations is now found at 5 C.F.R. § 2423.31.


Footnote # 10 for 55 FLRA No. 21 - Authority's Decision

   In light of the foregoing analysis, we find it unnecessary to reach the issue of whether the shop rotations constituted a nonnegotiable "assignment of work" under section 7106(a)(2)(B) of the Statute, because no determination on that issue would alter our conclusion that the elimination of noncompetitive promotions violated section 7116(a)(1) and (5) of the Statute. Moreover, changes in working conditions can prompt a bargaining obligation, even when the changes are not substantively negotiable. See, e.g., Social Security Administration, Santa Rosa District Office, Santa Rosa, California, 54 FLRA 444, 449 n.6 (1998) (Member Wasserman dissenting on other grounds).


Footnote # 11 for 55 FLRA No. 21 - Authority's Decision

   The record supports the General Counsel's assertion that the use of the phrase "may submit for promotion" in the April 1993 memorandum amounted to a ministerial requirement that supervisors would carry out after employees had completed their training to implement the Respondent's earlier decision to place employees in a career-ladder position. This finding is supported by the fact that, as the Judge noted, "all of the employees who entered the training program testified that they . . . never were advised that their promotions depended on the existence of WG-12 level work." Judge's Decision at 3. Further, such a construction of the April 1993 memorandum is consistent with the Authority's view of career-ladder promotions in other circumstances, as set forth in NFFE, Local 2052, 30 FLRA at 822.


Footnote # 12 for 55 FLRA No. 21 - Authority's Decision

   The Respondent does not except to the Judge's finding that, a change in the promotional opportunities of unit employees has more than a de minimis impact upon the conditions of employment. See Judge's Decision at 8-9, relying on Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 25 FLRA 541, 544 (1987) (Wright- Patterson Air Force Base).


Footnote # 13 for 55 FLRA No. 21 - Authority's Decision

   It is noted that, for the reasons expressed in note 11, supra, the use of the phrase "may submit for promotion to the WG-12 level[,]" in the April 1993 memorandum does not support a finding that promotions to the WG-12 level were competitive.


Footnote # 14 for 55 FLRA No. 21 - Authority's Decision

   In concluding that the Respondent committed the violations alleged in the complaint, the Authority also necessarily determines that the General Counsel made a prima facie showing. The Respondent has cited no authority to support its contention that the Judge was required to dismiss the complaint before hearing all of the evidence. Thus, the Judge properly denied the Respondent's motion to dismiss, and further analysis of the Respondent's contention is unnecessary.


Footnote # 15 for 55 FLRA No. 21 - Authority's Decision

        We find, and uncontradicted testimony by a witness for the Respondent stated, that the terms "career-ladder" and "target" are used interchangeably. See Tr. at 308-09. Similarly, a position which is "targeted" to the WG-12 level has a career-ladder at which WG-12 would be the full performance level.


Footnote # 16 for 55 FLRA No. 21 - Authority's Decision

   The record is silent with respect the three remaining employees, except that notations on the Respondent's Exhibit 12 indicate that Sanchez-Orsini, one of the three remaining employees, entered the program noncompetitively under the old system and should be similarly treated as other employees who noncompetitively entered the program.


Footnote # 17 for 55 FLRA No. 21 - Authority's Decision

   One employee (Sanchez-Orsini) entered the training program noncompetitively after April 1993. However, the Respondent does not except to the Judge's award of retroactive promotion to WG-12 or backpay to Sanchez-Orsini on this basis.


Footnote # 18 for 55 FLRA No. 21 - Authority's Decision

        We confine the application of retroactive prom