U.S. Department of Justice, Executive Office For Immigration Review, Board of Immigration Appeals and American Federation of Government Employees, Local 3425

[ v55 p454 ]

55 FLRA No. 74

U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, BOARD OF IMMIGRATION APPEALS
(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3525
(Charging Party/Union)

WA-CA-80032

_____

DECISION AND ORDER

May 7, 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 Respondent's exceptions to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions.

      The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to consider requests for flexiplace work arrangements from bargaining unit employees while the issue of flexiplace was pending before the Federal Service Impasses Panel (the Panel).

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. In particular, we find that the Respondent violated section 7116(a)(5) of the Statute by unilaterally changing a past practice of considering requests for flexiplace work arrangements.

II.     Background and Judge's Decision

A.     Statement of Facts

      The facts, which are fully set forth in the Judge's decision, are briefly summarized here.

      During the period February 1995 through June 1997, Respondent considered nine requests by attorneys in the bargaining unit for flexiplace work arrangements. The Respondent acted on all of these requests, granting eight of them. The bargaining agreement in effect at that time did not contain a flexiplace provision.

      On September 10, 1997, the Union requested the assistance of the Panel on various issues, including a flexiplace proposal. Within a 1-month period ending in mid-September 1997, the Respondent received three requests from attorneys for flexiplace arrangements. By letters dated September 22 or 23, 1997, the Respondent informed all three attorneys who had made such requests that the Respondent was unable to act on them. The letters stated that because the issue of flexiplace was currently being negotiated and was before the Panel, the Respondent would not act upon any requests until the issue was resolved. With the Panel's assistance, the parties reached agreement in January 1998 on several provisions, including a flexiplace article.

      The General Counsel filed a complaint alleging that the Respondent violated sections 7116(a)(1), (5) and (6) of the Statute by changing its procedures for considering flexiplace requests while the matter of flexiplace was pending before the Panel.

B.     Judge's Decision

      The Judge held that flexiplace is a condition of employment within the meaning of section 7103(a)(14) of the Statute. The Judge also held that the Respondent had a past practice of considering on the merits all flexiplace requests. In so holding, the Judge relied on his factual findings that: (1) 9 percent of the 100 attorneys in the bargaining unit had submitted flexiplace requests prior to the Union seeking the assistance of the Panel; and (2) management officials considered on the merits every one of the requests. Based on these findings, the Judge concluded that employees and management had "a reasonable expectation that requests for flexiplace . . . would be considered on their merits." Judge's Decision at 9.

      The Judge concluded that the Respondent changed its past practice when it declined to consider the three flexiplace requests made while the matter was pending before the Panel, in violation of section 7116(a)(1), (5) [ v55 p455 ] and (6) of the Statute. The Judge stated that "failure to maintain the status quo, to the extent consistent with the necessary functioning of [the] agency, while a negotiation dispute is pending before the Panel violates section 7116(a)(1), (5) and (6) of the Statute." Id. at 8 (citations omitted). The Judge concluded that the Respondent's expectation at the time it ceased considering the flexiplace requests of an imminent decision from the Panel was irrelevant in resolving the complaint. In this regard, the Judge stated that "[s]pecific evidence of an intent by Respondent to evade or frustrate its bargaining obligation is not required since intent is not an element of a section 7116(a)(5) violation." Id. at 10 (citations omitted).

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent argues that it did not violate section 7116(a)(5) of the Statute because it did not have a binding past practice of considering flexiplace requests on the merits. According to the Respondent, only 2 percent of bargaining unit employees submitted flexiplace requests annually from 1994 to 1997, and this number of requests is insufficient to establish a past practice. Relying on Daily News of Los Angeles v. NLRB, 73 F.3d 406, 412 n.3 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 764 (1997) (Daily News), the Respondent argues further that there was no past practice regarding flexiplace requests because the Respondent retained total discretion to decide whether to grant such requests. In addition, the Respondent maintains that no evidence was offered to show the procedures by which unit employees submitted flexiplace requests and, as a result, the Judge's conclusion that such requests were submitted in a "'systematic, [and] organized manner'" is erroneous. Exceptions at 6 (quoting Judge's Decision at 9).

      The Respondent also argues that, if it had a binding past practice of considering flexiplace requests on the merits, then it did not change that practice. In this regard, the Respondent asserts that, prior to the Union seeking the Panel's assistance, management had "essentially deferred" a decision on one flexiplace request and had only "conditionally grant[ed]" another. Id. at 6, 7. According to the Respondent, its decision not to consider the flexiplace requests submitted while the matter was pending before the Panel was consistent with its prior practice. The Respondent asserts, more generally, that its discretion to decide what factors to consider in evaluating a flexiplace request "necessarily includes . . . the discretion to defer action." Id. at 6.

      Finally, the Respondent contends that it did not violate section 7116(a)(6) of the Statute because a violation of that provision requires a determination that management failed to allow the Panel to take appropriate action with respect to the unresolved bargaining issues. According to the Respondent, it did not violate section 7116(a)(6) because it participated in every step of the Panel proceedings.

B.     General Counsel's Opposition

      The General Counsel argues that the Judge correctly found that the Respondent had a binding past practice of considering flexiplace requests. The General Counsel argues that the Respondent erroneously asserts that only 2 percent of the employees submitted flexiplace requests. According to the General Counsel, because only attorneys submitted flexiplace requests, only attorneys should be considered relevant in determining how many employees submitted the requests. The General Counsel asserts that, using attorneys as the relevant group, 9 percent of the group submitted the requests. The General Counsel also argues that the lack of established criteria for acting on flexiplace requests does not affect the finding of a past practice. According to the General Counsel, the issue before the Judge was whether the Respondent had a past practice of considering all requests for flexiplace on their merits, and whether the Respondent changed that practice once the dispute was before the Panel.

      The General Counsel also argues that the Respondent failed to maintain the status quo. In this regard, the General Counsel asserts that the two flexiplace requests that the Respondent relies on to show that it was continuing its past practice of exercising discretion were decisions on the merits.

      Finally, the General Counsel relies on Authority case law to argue that Respondent violated section 7116(a)(6) of the Statute when it failed to maintain the status quo by declining to consider flexiplace requests pending the Panel's decision on the matter.

IV.     Analysis and Conclusions

A.     The Respondent changed a past practice before completing bargaining, in violation of section 7116(a)(5) of the Statute

      Section 7116(a)(5) requires an agency to fulfill its obligation to bargain in good faith before changing conditions of employment, which may be established by past practice. See United States Immigration and Naturalization Service, Washington, D.C. and National Border Patrol Council, American Federation of [ v55 p456 ] Government Employees, AFL-CIO, 55 FLRA 69, 75 (1999) (INS) (Member Wasserman dissenting on other matters). An agency violates its obligation to bargain in good faith when it changes its past practice prior to the completion of bargaining. [n2]  See id. at 76 and cases cited therein. Accordingly, if the Respondent in this case implemented a change in conditions of employment prior to the completion of bargaining, then the Respondent violated section 7116(a)(5). [n3] 

1.     Respondent had a past practice of considering flexiplace requests on their merits

      In order for the Authority to find the existence of a past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. See USDA Forest Service, Pacific Northwest Region, Portland, Oregon and National Federation of Federal Employees, Forest Service Council, Region 6, 48 FLRA 857, 860 (1993).

      In this case, the record shows that both management and employees followed the practice of submitting and considering flexiplace requests, and that the practice was consistently exercised. Prior to the Union requesting the Panel's assistance, nine attorneys submitted such requests, and management considered each of these requests on the merits, granting eight of the nine. This process continued for over 2 years, a significant period of time. See U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, National Council of Field Labor Locals, Local 1748, 38 FLRA 899, 909 (1990) (16 months considered a significant period of time). This evidence supports the Judge's conclusion that a past practice existed of considering flexiplace requests on their merits.

      The Respondent argues that only 2 percent of bargaining unit employees submitted requests. According to the Respondent, this number is insufficient to establish a past practice, consistent with Letterkenny Army Depot and National Federation of Federal Employees, Local 1429, 34 FLRA 606 (1990) (Letterkenny), where the Authority concluded that union representation in 10 of 492 non-selection meetings did not constitute a past practice of union attendance at those meetings. This argument is unconvincing because, in this case, the Judge determined that the Respondent had considered on the merits every one of the requests made during the relevant time period. In contrast, in Letterkenny, representation was not provided at most of the meetings. As 100 percent of the requests were considered by the Respondent on the merits, resolving the parties' dispute as to the exact percentage of unit employees who submitted the requests is unnecessary.

      The Respondent's other arguments concerning the existence of a past practice also are unconvincing. First, the Respondent's reliance on Daily News is misplaced. In Daily News, the court held that an employer's unilateral termination of a policy providing for annual merit increases in pay constituted an unlawful refusal to bargain under section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) (1988). The court concluded that the employer's policy for setting the amount of the raises was not completely discretionary because the employer was constrained by the established procedures for evaluating employees and by the fixed criteria for making each individual merit decision.

      According to the Respondent, because it exercised complete discretion to decide whether to grant flexiplace requests, the Respondent's decision not to consider flexiplace requests did not violate the Statute. [n4]  In so arguing, the Respondent mischaracterizes the court as stating in Daily News that, "if the employer had retained total discretion to consider whatever factors it chose in deciding whether to grant the increases, a deferment of the policy would not have resulted in a violation of the NLRA." Exceptions at 5 (citing Daily News, 73 F.3d 406, 412 n.3) (emphasis in Exceptions). The court actually stated that, if the employer "retained total discretion to grant the increases based on any factors it chose, [it] doubt[ed] that discontinuing the policy would have [ v55 p457 ] resulted in a violation . . . ." Daily News, 73 F.3d at 412 n.3. More importantly, the Respondent in this case is not charged with failing to maintain the status quo with respect to the factors it used to consider flexiplace requests. Instead, it is charged with failing to maintain the status quo with respect to considering the requests at all. [n5]  Thus, whether the Respondent retained discretion with regard to the factors used to consider the requests is not dispositive.

      With regard to the Respondent's exception to the Judge's finding that flexiplace requests were submitted in a "systematic and organized" manner, Judge's Decision at 9, we do not discern how the existence of procedures used by unit employees in submitting requests is relevant to determining the Respondent's past practice in acting on such requests. In any event, contrary to the Respondent's exception, the record in this case contains evidence of such procedures. Specifically, Joint Exhibit 1 contains the flexiplace applications of the seven employees who were using flexiplace arrangements at the time of the hearing. The applications had several similarities: all used common forms; all contained similar information regarding the requested schedule, the reasons a flexiplace arrangement was needed, whether the applicants would have children at home during the workday, and information about the applicants' home offices; all were approved by high-level management officials.

      Based on the foregoing, we find that the Respondent had a past practice of considering flexiplace requests on their merits.

2.     The Respondent changed its past practice prior to completing bargaining over flexiplace work arrangements

      The Judge determined that maintenance of the status quo would have required the Respondent to continue considering flexiplace requests on the merits, and that the Respondent's failure to do so changed the status quo. A preponderance of the evidence supports this determination. Prior to the Respondent's determination not to consider flexiplace requests, the Respondent had considered every request on the merits. When the Respondent failed to consider the three disputed requests on the merits, the Respondent changed its past practice.

      The Respondent claims that it did not change a past practice after the Union sought the Panel's assistance, because the Respondent previously had "essentially deferred" action on one request and only "conditionally grant[ed]" another. Exceptions at 6-7. The record does not support the Respondent's claim, however. In particular, the Judge's undisputed findings demonstrates that the Respondent considered and acted on both of these requests on the merits. As for the first, the Respondent initially denied, but subsequently granted, the request. See Judge's Decision at 4; Transcript at 73-74. As for the second, the Respondent granted the request for a 6-month period. See Judge's Decision at 5. The Respondent, therefore, did not defer action on those two requests.

      More generally, the Respondent argues that it maintained the status quo by exercising its discretion to defer action on the three requests at issue. However, as discussed above, the Judge found that the past practice was for the Respondent to consider the flexiplace requests on their merits, regardless of the outcome of those requests. The Respondent declined to even consider the three requests made while the matter was pending before the Panel. Accordingly, the Respondent changed its past practice.

      Based on the foregoing, we find, in agreement with the Judge, that the Respondent changed its past practice of considering flexiplace requests on the merits prior to the completion of bargaining, in violation of section 7116(a)(5) of the Statute.

B.     The remedy ordered by the Judge provides full relief for the Respondent's unfair labor practice

      The Judge ordered the Respondent to: (1) consider the flexiplace requests that were not considered while the matter was pending before the Panel; and (2) make whole adversely affected employees for any annual leave used due to the Respondent's failure to consider their requests for flexiplace while the issue was at the Panel. There are no exceptions to this order, which would fully remedy the Respondent's failure to consider the flexiplace requests on their merits in violation of section 7116(a)(5).

      The Judge concluded that the Respondent violated section 7116(a)(6) of the Statute when it declined to consider the flexiplace requests made while the matter [ v55 p458 ] was pending before the Panel. Even if the Authority were to find that the Respondent violated section 7116(a)(6), there would be no further relief in this case. Accordingly, we do not determine whether the Respondent violated section 7116(a)(6). [n6]  See Department of the Treasury and Internal Revenue Service and National Treasury Employees Union, 22 FLRA 821, 829-30 n.8 (1986) and cases cited therein.

V.     Order

      Pursuant to section 2423.41(c) of the Federal Labor Relations Authority's Regulations and section 7118 of the Statute, it is hereby ordered that the U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals (Board) shall:

      1.     Cease and desist from:

           (a)     Unilaterally discontinuing the practice of considering all requests for flexiplace work arrangements.

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

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)     Upon request of the American Federation of Government Employees, Local 3525, the exclusive representative of the Board employees, consider the requests of all employees whose flexiplace requests were not considered. In considering such requests, the Board shall apply the same criteria and standards it applied to prior requests.

           (b)     Consistent with the regulation, make adversely affected employees whole for any annual leave used due to the Board's failure to consider their requests for flexiplace work arrangements.

           (c)      Post at its facilities wherever bargaining unit employees represented by the American Federation of Government Employees, Local 3525, are located, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Chairman of the Board of Immigration Appeals 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, 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
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals (Board), 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 discontinue the practice of considering all requests for flexiplace work arrangements.

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, at the request of the American Federation of Government Employees, Local 3525, the exclusive representative of Board employees, consider the requests of all employees whose flexiplace requests were not considered pending the outcome of bargaining. In considering such requests, we will apply the same criteria and standards applied to prior requests which we considered.

WE WILL, consistent with law and regulation, make adversely affected employees whole for any annual leave used due to the Board's failure to consider their requests for flexiplace work arrangements.

      ___________________
(Activity)

Date: ___________ By: __________________

      (Signature) (Title)

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

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Regional Office, whose address is: 800 K Street, NW., Suite 910, Tech World Plaza, Washington, D.C. 20001, and whose telephone number is: (202) 482-6700. [ v55 p459 ]


Concurring opinion of Member Wasserman:

      I agree that the Agency violated section 7116(a)(5). However, for the reasons stated in my dissent in INS, I would also find that the Agency violated section 7116(a)(6). Because, in my view, an agency may change the status quo when a matter is pending at the Federal Service Impasses Panel only if necessary for the functioning of the agency, I would start with the analysis of subpart (6). In this case, since a section 7116(a)(6) violation occurred, I would find it unnecessary to proceed to evaluate the (a)(5) claim.

      By joining in the majority opinion, I do not in any way abandon my opinion as expressed in INS. I note that the holding of that case has not been appealed, and is the applicable Authority precedent. Accordingly, for purposes of adjudicating this case, I join in finding the violation of section 7116(a)(5).


Dissenting Opinion of Member Cabaniss:

      Since I cannot agree that a past practice can be created where, as here, the agency has total discretion to act however it wishes, I respectfully dissent from the finding that the Respondent violated section 7116(a)(5) of the Statute.

      Unlike the majority, I believe the decision in Daily News quite clearly, though not in so many words, expresses the court's view that a past practice cannot arise where there are no criteria for conferring a benefit. The opinion repeatedly refers to the fact that the employer had an established criterion for granting or denying merit pay increases, sometimes adding emphasis to do so. See Daily News, 73 F.3d at 411. In addition, the opinion distinguishes the situation in Daily News from that in another NLRB case, where no violation was found, on the basis that "there was no finding . . . that the employer had established fixed criteria" for conferring the benefit in question. Id. at 413 n.7.

      The Authority has also found it appropriate to defer to agency decisions regarding matters that are committed to an agency's unfettered discretion. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 625, 648 (1997) (exercise of agency discretion outside the duty to bargain when "sole and exclusive" to the agency); U.S. Department of the Army, Headquarters, U.S. Army Aviation Center, Fort Rucker, Alabama and Wiregrass Metal Trades Council, 52 FLRA 89, 93 (1996) (arbitration award enforcing alleged past practice awards found contrary to Government-wide regulation giving Agency discretion concerning cash awards). While these cases address discretion provided by statute or regulation, I see no reason why the result should be different when the discretion arises from an employer's own past actions, as was the case in Daily News. Until the flexiplace negotiations between the parties in