U.S. Department of Energy, Western Area Power Administration , Golden, Colorado (Respondent) and American Federation of Government Employees, Local 3824 (Charging Party)

[ v56 p9 ]

56 FLRA No. 2

U.S. DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
GOLDEN, COLORADO
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3824
(Charging Party)

DE-CA-80417

_____

DECISION AND ORDER

February 17, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.

I.     Statement of the Case

      This case is before the Authority on the Respondent's exceptions to the attached decision of the Administrative Law Judge. The General Counsel (GC) filed an opposition.

      The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to provide the Union with notice and an opportunity to bargain over two employees' reassignments. The Judge found that the Respondent violated the Statute as alleged.

      Upon consideration of the Judge's decision and the entire record, we deny the Respondent's exceptions and adopt the Judge's findings and conclusions to the extent consistent with this decision.

II.     Background and Judge's Decision

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

      The Respondent notified the Union that it planned to restructure and downsize the Agency. During bargaining, the parties agreed to proposals (hereinafter "the Bargaining Provisions") concerning the Union's right to bargain over certain changes that would occur during implementation of the reorganization. [n1]  The parties continued to negotiate over aspects of the reorganization and, approximately 1 month later, agreed, in Provision 1c, that employee reassignments pursuant to the reorganization would be on the basis of inverse seniority. [n2] 

      Subsequently, pursuant to Provision 32, the parties negotiated over the numbers, types, and grades of employees for the proposed new organization, and reached agreement on 680 positions. When the Respondent began to fill those positions without first bargaining over the implementation date for doing so, the Union filed a grievance that ultimately was submitted to arbitration over whether the Respondent's actions violated the parties' agreement. As relevant here, the Arbitrator found that further bargaining over the implementation date was not required, and he denied the grievance. The Arbitrator expressly declined to address one of the Union's arguments, pertaining to Provision 31, because that argument had not been raised during the initial steps of the grievance procedure.

      Upon discovering that the Respondent had reassigned two employees without first notifying the Union, the Union requested bargaining and provided the Respondent with proposals regarding procedures for reassigning employees. The Respondent refused to bargain, claiming that the matter was "covered by" Provision 1c in the parties' agreement. The Union filed an unfair labor practice charge, and the GC issued a complaint, alleging that the Respondent's refusal to bargain violated section 7116(a)(1) and (5) of the Statute.

      As a preliminary matter, the Judge rejected the Respondent's argument that the Arbitrator's award collaterally estopped the Judge from finding that the Union [ v56 p10 ] had preserved its right to bargain over placement procedures for employees. In this connection, the Judge found that the issues in the award and the complaint were different. The Judge also found that the interpretation of Provision 31 was essential to the resolution of the issue before him, and that the Arbitrator expressly declined to address that provision on the ground that arguments concerning it had not been timely raised by the Union.

      Addressing the merits, the Judge found that the reassignments had more than a de minimis effect on the two employees. The Judge also found, applying the test set forth by the Authority in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA I), that the Union's proposals did not concern a matter that was "covered by" Provision 1c of the parties' agreement. [n3]  Interpreting Provision 1c in the context of the Bargaining Provisions, the Judge found that Provision 1c was intended to address only one aspect of how reassignments would be implemented, and he concluded that other aspects of the two disputed reassignments, including the procedures proposed by the Union, were not "covered by" Provision 1c.

      In the alternative, the Judge found, applying the "contract interpretation" analysis set forth in Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), that the bargaining history of both Provision 1c and the Bargaining Provisions supported a conclusion that the Bargaining Provisions preserved the Union's right to bargain over several aspects of the two disputed reassignments. The Judge also determined that the parties' practice of continuing to negotiate with regard to several employees' reassignments, subsequent to agreeing to Provision 1c, supported the conclusion that the parties did not intend Provision 1c to foreclose further bargaining over reassignments.

      Based on the foregoing, the Judge decided that the Respondent's failure to bargain over the two disputed reassignments violated section 7116(a)(1) and (5) of the Statute. Applying Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), the Judge recommended a status quo ante remedy. In this connection, the Judge found that: the Respondent failed to provide the Union with prior notice of the two reassignments; the Union promptly requested bargaining once the reassignments were brought to their attention; and the Respondent willfully failed to bargain over the Union's proposals. The Judge also determined that the nature and extent of the impact of the reassignments on the two employees was immediate and severe, outweighing any potential financial consequences to the Respondent.

III.     Positions of the Parties

A.     Respondent's Exceptions

      As a preliminary matter, the Respondent argues that the Authority should not consider only the Bargaining Provisions and Provision 1c and, instead, should consider additional provisions that, the Respondent asserts, are favorable to its position.

      The Respondent also argues that the Judge mischaracterized its collateral estoppel argument. According to the Respondent, it did not argue that the entire complaint was barred from the Judge's consideration as a result of the Arbitrator's award. Rather, the Respondent contends that it argued to the Judge, as it now argues before the Authority, only that the Arbitration award precludes a rejection of its "covered by" argument under prong III of SSA I. The Respondent also asserts, however, that a prong III analysis is unnecessary because the reassignments are "covered by" Provision 1c under prongs I and II of that analysis.

      The Respondent contends that, under prong I of the SSA I analysis, the process by which employees would be reassigned was expressly contained in and, therefore, "covered by" Provision 1c. According to the Respondent, the Judge's reliance on the Bargaining Provisions was improper because those provisions -- which, the Respondent asserts, do not address reassignments -- "should not negate the subsequent, specific agreement" regarding reassignments in Provision 1c. Exceptions at 13.

      With regard to prong II of the SSA I analysis, the Respondent disputes the Judge's finding that the parties' subsequent negotiations concerning several employees' reassignments indicate that Provision 1c was not intended to foreclose further bargaining over reassignments. The Respondent asserts that the parties' negotiations with regard to other reassigned employees concerned "organization changes, not directed reassignments." Id. at 19. [ v56 p11 ]

      The Respondent also excepts to the status quo ante remedy on the ground that the Judge misapplied the criteria set forth in FCI, 8 FLRA 604. First, the Respondent disputes the Judge's finding that the Union did not have advance notice of the disputed reassignments, arguing that the Union received notification that the disputed positions were surplus and that the employees encumbering those positions were likely to be reassigned. Second, according to the Respondent, the fact that the reassigned employees experienced adverse consequences is irrelevant because negotiations could not prevent management from exercising its prerogative to reassign them. Third, the Respondent asserts that a status quo ante remedy would impair the efficiency and effectiveness of its operations because returning the two employees to their now-abolished positions would increase the Respondent's costs by an "undeterminable" amount. Exceptions at 39.

B.     GC's Opposition

      With regard to the preliminary matter raised by the Respondent, the GC asserts that the provisions relied on by the Respondent (other than the Bargaining Provisions and Provision 1c) were not raised before the Judge, and that, pursuant to section 2429.5 of the Authority's Regulations, the Authority should decline to consider those provisions.

      According to the GC, the Judge's finding regarding collateral estoppel was correct because the Judge and the Arbitrator were faced with different issues. In this connection, the GC maintains that the unfair labor practice issue was not necessary to the Arbitrator's award, based on the fact that the meaning of Provision 31 is essential to the resolution of this unfair labor practice issue, while the Arbitrator refused, on timeliness grounds, to consider the meaning of that provision.

      The GC asserts that the Judge properly found, under the SSA I analysis, that the disputed reassignments were not "covered by" Provision 1c. The GC also asserts that, in applying the SSA I analysis, it was appropriate for the Judge to consider the Bargaining Provisions. The GC contends that the Authority should hold that the intent of the parties "dictate[s] the outcome" in all cases involving bargaining disputes. GC Opposition at 22-23.

      Finally, the GC claims that the Judge properly awarded a status quo ante remedy.

IV.     Analysis and Conclusions

A.     Preliminary Matter

      The Respondent asserts that the Authority should consider several provisions, other than the Bargaining Provisions and Provision 1c, that purportedly support the Respondent's position. Although the Respondent could have raised this issue before the Judge, it did not do so. Therefore, as argued by the GC, the Respondent is precluded from making arguments related to those provisions before the Authority. See 5 C.F.R. § 2429.5; see also 24th Combat Support Group, Howard Air Force Base, Republic of Panama, 55 FLRA 273, 281 n.12 (1999).

B.     The Judge Was Not Collaterally Estopped by the Arbitrator's Award.

      Collateral estoppel, or issue preclusion, is part of the broader doctrine of res judicata that prevents a second litigation of the same issues of fact or law even in connection with a different claim or cause of action. [n4]  See U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 35 FLRA 978, 982 (1990) (citation omitted). Before the doctrine of collateral estoppel can be applied, it must be demonstrated that: (1) the same issue was involved in both cases; (2) that issue was litigated in the first case; (3) resolving it was necessary to the decision in the first case; (4) the decision in the first case, on the issue to be precluded, was final; and (5) the party attempting to raise the issue in the second case was fully represented in the first case. See id. at 982-83.

      A review of the Arbitrator's award reveals that the dispute before the Arbitrator concerned the time frame for implementation of the reorganization. Specifically, the Arbitrator focused on a conflict between Provision 35 of the parties' agreement, [n5]  and an unnumbered provision that was subsequently agreed to by the parties. [n6]  By contrast, the dispute before the Judge concerned the extent to which additional bargaining obligations [ v56 p12 ] remained after the reorganization was initiated. Further, while the Arbitrator declined to consider Provision 31 on timeliness grounds, the Judge found the interpretation of that provision was "pivotal" to deciding the statutory issue before him. Decision at 4, 16. As such, the "same issue" was not litigated before both the Arbitrator and the Judge. Accordingly, the Judge properly concluded that he was not collaterally estopped by the Arbitrator's award, and we deny the Respondent's exception.

C.     The Judge Did Not Err by Finding That the Respondent Was Obligated to Bargain over the Two Reassignments.

      In reaching his conclusion that the Respondent was obligated to bargain over the two reassignments, the Judge conducted two analyses. First, he determined that the Respondent did not have a valid "covered by" defense under SSA I. Second, he engaged in contract interpretation under the analysis set forth in IRS, and found that the Union had expressly preserved, in the Bargaining Provisions, its right to bargain over the reassignments.

      The SSA I "covered by" defense is available to a party claiming that it is not obligated to bargain because it has already bargained over the subject at issue. The IRS doctrine applies when a party "relies on a contract provision specifically concerning bargaining (such as a reopener or zipper clause)" that relates to the parties' bargaining obligations. SSA III, 55 FLRA at 538. The Authority has held that, in appropriate circumstances, both an SSA I analysis and an IRS analysis may apply in the same case. [n7]  SSA III, 55 FLRA at 537.

      As the Bargaining Provisions, which are relied on by the General Counsel, describe the parameters of negotiations over the reorganization, they are provisions "concerning bargaining," as described in SSA III. 55 FLRA at 538. Accordingly, consistent with the Authority's holdings in SSA II and III, we reject the Respondent's argument that the Judge should not have considered the Bargaining Provisions in determining whether the two disputed reassignments were "covered by" Provision 1c. We find that it was appropriate, in these circumstances, for the Judge to engage in contract interpretation under IRS in considering the Bargaining Provisions.

      As plainly worded, the Bargaining Provisions constitute a reservation of the Union's bargaining rights. The Judge found, on the basis of unrebutted testimony, that the Union intended those provisions to preserve its right to negotiate over placement of employees as the Respondent made staffing decisions throughout implementation of its reorganization, and that, during negotiations, the Union informed the Respondent of those intentions. See Decision at 23-24. The Judge also found that the parties' practice subsequent to agreeing to Provision 1c was to negotiate over employee reassignments, and that this practice supported the conclusion that Provision 1c did not foreclose further bargaining over reassignments. [n8]  See id. at 24-25. The Judge's findings regarding the parties' bargaining history and practices are supported by a preponderance of the relevant evidence in the record. See, e.g., Transcript at 137; GC Exhibit 13. Consistent with those findings, and with the plain wording of the Bargaining Provisions, we find that, by entering into the Bargaining Provisions, the parties agreed to engage in bargaining over all "things not foreseen," "procedures," and "changes." Provisions 10, 31, and 54, supra n.1.

      The Respondent argues that, even in light of the Bargaining Provisions, the parties' agreement to Provision 1c satisfied its bargaining obligation over the two disputed reassignments, and the Bargaining Provisions should not be interpreted to "negate" Provision 1c. Exceptions at 13. However, the Judge found that Provision 1c was intended to deal with only one aspect of employee reassignments -- the order in which such assignments would be issued -- and that a myriad of other reassignment-related issues remained unresolved. See Decision at 24. As such, finding that Provision 1c does not foreclose bargaining over these other issues does not "negate" Provision 1c. The Judge also found that there was no evidence in the parties' bargaining history or practices indicating that Provision 1c was intended to satisfy the broad bargaining obligations set forth in the Bargaining Provisions. See id. at 25-26. A preponderance of the evidence supports the Judge's [ v56 p13 ] findings, which, in turn, support his conclusion that Provision 1c does not provide the Respondent with a defense to its failure to bargain. See, e.g., Transcript at 168-69.

      In sum, based on the wording of the Bargaining Provisions and Provision 1c, the parties' bargaining history, and the parties' practices pursuant to their agreement, we agree with the Judge that the two disputed reassignments were not "covered by" Provision 1c of the parties' agreement. As a result, the Respondent's failure to bargain constitutes a violation of section 7116(a)(1) and (5) of the Statute, and we deny the Respondent's exceptions. See, e.g., SSA III, 55 FLRA at 540.

D.     The Judge Did Not Err in Granting a Status Quo Ante Remedy.

      Where an agency has failed to bargain over the impact and implementation of a management decision, the Authority evaluates the appropriateness of a status quo ante remedy using the factors set forth in FCI, 8 FLRA at 606. In this connection, the Authority considers: (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. Id.

      With respect to the first FCI factor, the Judge found, on the basis of undisputed evidence, that the Respondent did not provide the Union with prior notice of the two reassignments. See Decision at 18. Although the Respondent contends that it had previously notified the Union that the two employees were surplus and likely to be reassigned, the Respondent does not dispute that it failed to notify the Union when it eventually issued the two reassignments and, as a result, the first FCI factor supports a status quo ante remedy in this case. As the Respondent does not dispute the Judge's finding that the Union promptly requested bargaining, the second FCI factor also supports a status quo ante remedy.

      With respect to the third FCI factor, the Judge based his finding that the Respondent's failure to bargain was willful on the undisputed fact that the Respondent denied the Union's request to bargain. Although the Respondent asserts that it refused to bargain because it believed that the subject matter was "covered by" the parties' agreement, the Authority has held that, if a respondent's actions are otherwise intentional, then the respondent's erroneous belief that it had no duty to bargain does not support a conclusion that the respondent's actions were not "willful" for the purposes of FCI. See U.S. Department of the Army, Lexington-Blue Grass Army Dept, Lexington, Kentucky, 38 FLRA 647, 649 (1990). As there is no assertion that the Respondent's actions were unintentional, the third FCI factor also supports a status quo ante remedy here.

      The Judge found, with regard to the fourth FCI factor, that the effects on the two employees were "immediate and severe." Decision at 28. Rather than challenge the Judge's findings in this regard, which support a conclusion that the two employees suffered adverse effects as a result of the reassignments, the Respondent contends that those adverse effects do not support a status quo ante remedy, because the employees would nonetheless suffer those effects if management ultimately exercises its right to reassign those two employees. Based on Authority precedent, we reject the Respondent's contention. In this connection, the Authority has held that the fact that management has the right to implement a change that adversely affects employees does not provide a basis for denying a status quo ante remedy. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 36 FLRA 655, 673 (1990).

      With respect to the fifth FCI factor, a conclusion that a status quo ante remedy would be disruptive to agency operations must be "based on record evidence[.]" Army and Air Force Exchange Service, Waco Distribution Center, Waco, Texas, 53 FLRA 749, 763 (1997). The Respondent concedes that it cannot accurately anticipate the degree of disruption the reinstatements would have on the efficiency of its operations. See Exceptions at 39-40. The Judge, relying on the testimony of the Respondent's communications manager, found that it would not increase the Respondent's costs to return one of the employees to his previous position, because that employee will continue to receive the same salary and benefits without regard to which position he encumbers. See Decision at 29. In addition, the Judge relied on witness testimony to find that a status quo ante remedy would increase the Respondent's overhead by a maximum of 2 percent, and that there was existing work for the two employees to perform in their previous positions. Given this evidence, on the one hand, and the speculative nature of the Respondent's assertions, on the other hand, a preponderance of the record evidence supports the Judge's conclusion that a status quo ante remedy would not disrupt the Agency's operations.

      Accordingly, the Judge properly ordered a status quo ante remedy, and we deny the Respondent's exception. [ v56 p14 ]

V.     Order

      Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Statute, the U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, shall:

      1.     Cease and desist from:

           (a)     Issuing directed reassignments to unit employees Stephen S. McKenna and Henry J. Kientz without first bargaining with the American Federation of Government Employees, AFL-CIO, Local 3824, over the impact and implementation of those reassignments.

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

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

           (a)     Rescind the directed reassignments issued to Stephen S. McKenna on February 24, 1998 and to Henry J. Kientz on March 3, 1998.

           (b)     Offer to reinstate Stephen S. McKenna to the GS-14 Electrical Engineer position he occupied in Golden, Colorado prior to April 16, 1998.

           (c)     Offer to reinstate Henry J. Kientz to the GS-13 Electrical Engineer position he occupied in Golden, Colorado prior to June 2, 1998.

           (d)     Make Stephen S. McKenna and Henry J. Kientz whole to the extent they have suffered any reduction of pay and/or benefits as a result of implementation of their directed reassignments.

           (e)     Notify the American Federation of Government Employees, AFL-CIO, Local 3824 of any intent to direct the reassignment of Stephen S. McKenna or Henry J. Kientz and, upon request, negotiate over the impact and implementation of those reassignments.

           (f)     Post at its facilities copies of the attached Notice to all employees on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Administrator, Western Area Power Administration, Golden, Colorado, 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 placed. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (g)     Pursuant to section 2423.41(e) of the Authority's Regulations, within 30 days from the date of this Order, notify the Regional Director of the Denver Region, Federal Labor Relations Authority, 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, in writing, 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 Western Area Power Administration, Golden, Colorado 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 implement the directed reassignments of unit employees Stephen S. McKenna and Henry J. Kientz without first bargaining with the American Federation of Government Employees, Local 3824, over the impact and implementation of those reassignments.

WE WILL NOT in any like or related manner interfere with, restrain or coerce unit employees in the rights assured by the Statute.

WE WILL rescind the directed reassignments issued to Stephen S. McKenna on February 24, 1998 and to Henry J. Kientz on March 3, 1998.

WE WILL offer to reinstate Stephen S. McKenna to the GS-14 Electrical Engineer position he occupied in Golden, Colorado prior to April 16, 1998.

WE WILL offer to reinstate Henry J. Kientz to the GS-13 Electrical Engineer position he occupied in Golden, Colorado prior to June 2, 1998.

WE WILL make Stephen S. McKenna and Henry J. Kientz whole to the extent they have suffered any reduction of pay and/or benefits as a result of implementation of their directed reassignments.

WE WILL notify the American Federation of Government Employees, Local 3824 of any intent to direct the reassignment of Stephen S. McKenna or Henry J. Kientz and, upon request, negotiate over the procedures to be observed in implementing such changes and appropriate arrangements for unit employees who have been adversely affected by the implementation of such directed reassignments.

      ______________________
(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, Denver Region, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204-3581, and whose telephone number is: (303) 844- 5224.


File 1: Authority's Decision in 56 FLRA No. 2
File 2: ALJ's Decision


Footnote # 1 for 56 FLRA No. 2 - Authority's Decision

   The Bargaining Provisions are as follows:Provision 10:

"The Union reserves the right to initiate bargaining after the reorganization if necessary, for things not foreseen prior to the reorganization." Decision at 4.
Provision 21:     "The Union reserves the right to add to, delete, or amend the proposals to facilitate bargaining." Id.
Provision 31:     "Procedures/methods for placement of [bargaining unit] employees will be negotiated." Id.
Provision 32:     "Numbers, types, grades and methods of doing work will be negotiated for each unit in Western that has [bargaining unit] employees." Id.
Provision 54:     "Union and management agree that staffing levels agreed to as a result of bargaining will remain in effect throughout the transformation process. If there are Management proposed changes, the Union will be notified and given the opportunity to bargain over those proposed changes." Id. at 5.

Footnote # 2 for 56 FLRA No. 2 - Authority's Decision

   Provision 1c provides: "All involuntary assignments/ reassignments to bargaining unit positions as a result of this transformation between the present and June 1, 1998 will be in the order as follows: a. Solicit volunteers from qualified employees. b. If no volunteers, then assign by lowest service comp date of the qualified employees." Jt. Exh. 11 at 4.


Footnote # 3 for 56 FLRA No. 2 - Authority's Decision

   In SSA I, 47 FLRA at 1018-19, the Authority set forth a three-part framework for determining whether a matter is "covered by" a collective bargaining agreement. Under this framework, the Authority determines whether: (1) the disputed matter is expressly contained in the parties' agreement; (2) the matter is "inseparably bound up with" and, as a result, "plainly an aspect of" something expressly contained in the agreement; and (3) the parties reasonably should have contemplated that their agreement would foreclose further bargaining over the matter. Id. at 1018.


Footnote # 4 for 56 FLRA No. 2 - Authority's Decision

   It is unclear whether the collateral estoppel doctrine has any application here, as the Authority has held that arbitrators' awards are not precedential. See, e.g., Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia and American Federation of Government Employees, Local 3615, 55 FLRA 349, 352 (1999) (citation omitted). However, as the parties have not raised this issue, we do not consider it further.


Footnote # 5 for 56 FLRA No. 2 - Authority's Decision

   Provision 35 provides, in pertinent part: "The date of implementation . . . will be established through bargaining." Agency Exh. 6 at 9.


Footnote # 6 for 56 FLRA No. 2 - Authority's Decision

   The unnumbered provision provides, in pertinent part: "Those portions of the [reorganization] Plan that are not related to unresolved issu