United States Immigration and Naturalization Service, Washington, D.C. (Respondent) and National Border Patrol Council, American Federation of Government Employees, AFL-CIO (Charging Party/Union)

[ v56 p721 ]

56 FLRA No. 120

UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
WASHINGTON, D.C.
(Respondent)

and

NATIONAL BORDER PATROL COUNCIL
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
(Charging Party/Union)

SF-CA-30165-001
55 FLRA 69 (1999)

_____

DECISION AND ORDER ON REMAND

September 26, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Charging Party to the decision of the Administrative Law Judge on remand by the Authority in United States Immigration and Naturalization Service, Washington, D.C., and National Border Patrol Council American Federation of Government Employees, AFL-CIO, 55 FLRA 69 (1999) (Member Wasserman dissenting) (INS). The Respondent filed an opposition to both the General Counsel's and the Charging Party's exceptions.

      The Judge concluded that the framework set forth in INS for determining whether an agency's failure to maintain the status quo violates section 7106(a)(6) of the Federal Service Labor-Management Relations Statute (the Statute) should be applied retroactively in this case. Applying INS, the Judge determined that the Respondent did not violate section 7106(a)(6). The Judge also determined that the complaint did not encompass an independent violation of section 7116(a)(5) and that such violation was not fully and fairly litigated.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended order dismissing the complaint.

II.     Background and the Judge's Decision

A.     The Authority's Decision In INS

      The complaint in this case alleges that the Respondent violated section 7116(a)(1), (5) and (6) of the Statute by implementing a new Air Operations Manual (Manual) after the Union had requested the assistance of the Federal Service Impasses Panel (Panel). See INS, 55 FLRA at 69.

      On exceptions filed by the Respondent to the Judge's determination that the Respondent had violated the Statute, the Authority set out a modified framework for determining whether an agency's failure to maintain the status quo violates section 7106(a)(6) of the Statute. The Authority stated that, under the modified framework, it would determine whether such failure violated section 7116(a)(6) of the Statute "based on whether maintenance of the status quo has been directed by impasse procedures or decisions." INS, 55 FLRA at 78.

      The Authority concluded that the record was insufficient to resolve the complaint under the modified framework and that questions concerning retroactivity required resolution. Id. at 79. Accordingly, the Authority remanded the complaint. In addition, noting that no exceptions had been filed to the Judge's finding that the alleged violation of section 7116(a)(5) was "derivative" of the alleged violation of section 7116(a)(6), the Authority remanded the issue of "whether it would be appropriate, or feasible, for the Judge to permit the General Counsel to, in effect, relitigate the complaint as an independent--rather than derivative--violation of section 7116(a)(5)." Id. at 79 n.21.

B.     The Judge's Decision on Remand

      Following the Authority's remand in INS, the parties submitted briefs to the Judge, and entered into various stipulations of fact, including the stipulation that "[a]t no time . . . did the [Panel] issue an order or procedure requiring Respondent to maintain the status quo with regards to the implementation of the Manual." Judge's Decision on Remand at 5. Based on this stipulation, the Judge concluded that the Respondent had not been directed by the Panel to maintain the status quo and, as such, the alleged violation of section 7116(a)(6) could not be sustained under INS.

      The Judge also concluded, applying the factors set out by the National Labor Relations Board (NLRB) in Pattern & Model Makers Association, 310 NLRB 929 (1993) (Pattern Makers), that INS should be retroactively applied in this case. According to the Judge, under Pattern Makers, modified legal standards are [ v56 p722 ] applied retroactively unless doing so would result in manifest injustice, which arises when: (1) the parties have relied on preexisting law; (2) retroactivity would not serve the purposes of the underlying law; or (3) a "'particular injustice to the losing party'" would result. Id. at 9 (quoting Pattern Makers, 310 NLRB at 931).

      With respect to the first manifest injustice factor set forth in Pattern Makers, the Judge determined that neither the Respondent nor the Charging Party relied on existing law. With respect to the second factor, the Judge determined that retroactive application of INS promotes the policies and purposes underlying the Statute. With respect to the third factor, the Judge determined that "no particular injustice" would accrue "to the losing party by virtue of retroactively applying the change of law." Id. at 12. The Judge stated that the General Counsel could have issued -- but did not issue -- a complaint "which alleged an independent (rather than merely a derivative) section 7116(a)(5) violation." Id.

      The Judge also concluded that the issue of whether the Respondent's implementation of the Manual constituted an independent violation of section 7116(a)(5) was not encompassed in the complaint and was not fully and fairly litigated. With respect to the complaint, the Judge noted his finding in his first decision that the complaint "alleged only a derivative violation of section 7116(a)(5)," and further, that the General Counsel "acknowledge[d]" that the Judge's finding was correct. Id. at 13, 13 n.7. The Judge noted that the General Counsel never sought to amend the complaint to allege an independent violation of section 7116(a)(5). With respect to the course of the litigation, the Judge found that "the parties did not litigate this case as an independent section 7116(a)(5) [violation]." Id. at 13.

      Based on the foregoing, the Judge recommended that the complaint be dismissed in its entirety.

III.     Position of the Parties

A.     The General Counsel's Exceptions

      The General Counsel argues that the Judge erred by retroactively applying INS. Specifically, the General Counsel argues that, with respect to the first manifest injustice factor set forth in Pattern Makers, the Charging Party detrimentally relied on existing Authority case law. With respect to the third Pattern Makers factor, the General Counsel maintains that:

The holding in INS is founded on the Authority's view that any hardship that might result from its holding that Respondent's conduct can no longer support a 7116(a)(6) violation is tempered by the fact that such conduct continues to be a violation of 7116(a)(5). Yet the . . . Judge both applied INS retroactively to kill the 7116(a)(6) and failed to apply it to save the 7116(a)(5). What could be more unjust?

General Counsel's Exceptions at 17.

      The General Counsel also argues that the Judge erred by dismissing the section 7116(a)(5) allegation. The General Counsel asserts that, although the section 7116(a)(5) violation was pled as a derivative violation, this does not bar the Authority from addressing the violation on the merits. Id. at 8 (citing United States Department of the Treasury, Internal Revenue Service and Internal Revenue Service Austin District, and Internal Revenue Service, Houston District, 23 FLRA 774 (1986) (IRS Houston). According to the General Counsel, "so long as conduct is pled to support the 7116(a)(5) allegation . . . it demands a finding on the merits, regardless of the independent finding made on another allegation in the same complaint." General Counsel's Exceptions at 8. The General Counsel relies on Admiral Merchants Motor Freight, Inc., 265 NLRB 134, 135 (1982) (Admiral) and AMC Air Conditioning Co., 232 NLRB 283, 285 (1977) (AMC Air). The General Counsel claims that additional litigation is not required to find a violation of section 7116(a)(5).

B.     The Charging Party's Exceptions

      The Charging Party argues that the Judge erred in retroactively applying INS. With respect to the first manifest injustice factor set forth in Pattern Makers, the Charging Party concedes that it did not detrimentally rely on pre-INS law, but asserts that the General Counsel "detrimentally relied on the previous . . . law in deciding it was unnecessary to emphasize the 7116(a)(5) violation in light of the clear violation of 7116(a)(6)." Charging Party's Exceptions at 7. The Charging Party claims that, under the second Pattern Makers factor, INS should not be applied retroactively because doing so is inconsistent with the Statute. With respect to the third factor, the Charging Party claims that manifest injustice results from retroactively applying INS because it allows the Respondent to escape liability for violating the Statute.

      The Charging Party also argues that the complaint "can properly be interpreted as encompassing an independent 7116(a)(5)" violation and, as such, additional litigation is not necessary to find such a violation. Id. at 10. [ v56 p723 ]

C.     The Respondent's Opposition

      The Respondent asserts that the Judge's decision to apply INS retroactively was correct. The Respondent also asserts that the Judge correctly found that an independent section 7116(a)(5) violation was not before him. The Respondent asserts that the Judge found in the first decision that the alleged violation of section 7116(a)(5) was derivative, and that "no exceptions to this finding were filed, and when the Respondent specifically pointed this out in its exceptions, the General Counsel did not oppose it." Opposition at 9.

IV.     Analysis and Conclusions

A.     The Judge properly found that INS retroactively applies to resolve whether the Respondent violated section 7116(a)(6) of the Statute.

      The General Counsel and Charging Party do not dispute that, under INS, the Respondent's conduct did not violate section 7116(a)(6) of the Statute. However, they argue that the retroactive application of INS is not appropriate.

      The rule that newly-adopted standards are applied retroactively to the cases in which they are adopted is "familiar to private sector labor law and indeed inherent in both administrative and common law adjudication." National Treasury Employees Union v. FLRA, 139 F.3d 214, 219 (D.C. Cir. 1998) (NTEU). However, courts and administrative agencies have recognized an exception to the rule of retroactivity in situations of "manifest injustice." United Food and Commercial Workers International Union, AFL-CIO v. National Labor Relations Board, 1 F.3d 24, 34 (D.C. Cir. 1993) (UFCW). The Judge applied the "manifest injustice" test used by the NLRB in Pattern Makers[n1]  As there is no dispute among the parties that Pattern Makers is appropriately applied in this case, we apply it. [n2] 

1.     The first Pattern Makers factor supports retroactive application of INS.

      In assessing the first Pattern Makers factor -- parties' reliance on preexisting law -- the Judge found that neither the Respondent nor the Charging Party detrimentally relied on preexisting law. Relevant precedent indicates that this factor examines evidence of actual reliance by the parties on preexisting law. See, e.g., Laborers' International Union v. Foster Wheeler Energy Corporation, 26 F.3d 375, 393 (3rd Cir. 1994) (Foster Wheeler) (factor focuses on "the subjective question whether the party opposing retrospective application did, in fact, rely on the retracted rule, rather than the objective question whether that party reasonably and justifiably could have relied upon it."). See also District Lodge 64 v. National Labor Relations Board, 949 F.2d 441, 448-49 (D.C. Cir 1991) (District Lodge 64) (suggestion that NLRB General Counsel and union "may have been somewhat easygoing in their investigations" based on preexisting law insufficient to establish reliance).

      Although the General Counsel asserts that the Charging Party detrimentally relied on preexisting law, it offers no evidence to support its claim. Further, the Charging Party concedes that it would not have acted differently under INS. See Charging Party's Exceptions at 6-7. Similarly, while the Charging Party asserts that the General Counsel relied on preexisting law regarding section 7116(a)(6) in "deciding it was unnecessary to emphasize the 7116(a)(5) violation," the Charging Party offers no evidence to support this claim. Id. at 7. Moreover, the General Counsel does not claim that it relied on preexisting law and, as discussed in Section IV.B., infra, contends that it fully litigated the section 7116(a)(5) claim. In these circumstances, we conclude that the requisite reliance was not established.

2.     The second Pattern Makers factor supports retroactive application of INS.

      The Judge determined that the second Pattern Makers factor -- whether retroactivity would serve the purposes of the underlying law -- did not support a finding of "manifest injustice." Judge's Decision on Remand at 11-12. Although the General Counsel does not except to this determination, the Charging Party does -- asserting that retroactive application of INS does not effectuate the purposes and policies of the Statute [ v56 p724 ] because it would permit the Respondent to escape liability for violating section 7116(a)(5) of the Statute.

      If the Charging Party is correct, then this is not a result of retroactive application of the INS doctrine concerning section 7116(a)(6) violations. Instead, it is the result of the General Counsel's litigation strategy concerning the section 7116(a)(5) allegation in this case. In this connection, where a party proposes a theory of the case that is rejected by the Authority, the complaint is dismissed, even though the underlying conduct might constitute a violation under a different theory. See 305th Air Mobility Wing, McGuire Air Force Base, New Jersey, 54 FLRA 1243, 1252 n.4 (1998) (McGuire AFB) (dismissing claim that Respondent violated section 7116(a)(2) of the Statute, while making "no finding" as to whether an independent violation of section 7116(a)(1) would have been found if it had been argued). See also District Lodge 64, 949 F.2d at 448 (court affirmed NLRB's decision to dismiss an unfair labor practice complaint based on retroactive application of change in decisional law).

      The Charging Party also asserts that statutory interests are not furthered by retroactive application of INS because the Respondent is continuing to engage in conduct that violates the Statute. However, the Respondent's current conduct is not before the Authority in this case and, as a result, it is not relevant to determining whether INS applies retroactively. If the Charging Party believes that the Respondent has violated the Statute, then the Charging Party should file charges with the General Counsel so that these issues can be resolved.

3.     The third Pattern Makers factor supports retroactive application of INS.

      The third Pattern Makers factor focuses on the particular hardship imposed on a party whose interest suffered due to a change in law. See Foster Wheeler, 26 F.3d at 393 (court held that in view of losing party's size and wealth, paying $20,000 or more in fines as a result of change in law did not militate against retroactively applying the change). The Judge found that "no particular injustice" would accrue "to the losing party by virtue of retroactively applying" INS. Judge's Decision on Remand at 12.

      The General Counsel and Charging Party disagree with the Judge's analysis of the third Pattern Makers factor. However, neither points to any particular hardship that retroactive application would have on the Charging Party. Instead, they identify the effect of losing a case that they could have won, which appears to be a routine result of a change in the law that is retroactively applied. We note, in this regard, that questions about retroactivity essentially arise only in cases where changes in law affect the outcome of a particular case. See, e.g., Foster Wheeler, 26 F.3d at 386 (court affirmed NLRB decision to retroactively apply decision representing "a complete about-face" in law resulting in finding that respondent violated law based on conduct that, prior to change in law, was permissible). The record discloses no cases where that fact alone -- that retroactive application would cause a party to lose a case that it otherwise would have won -- has been found to constitute a particular injustice under the third Pattern Makers factor.

4.     Summary

      Based on the foregoing, we conclude, in agreement with the Judge, that application of the three Pattern Makers factors supports the retroactive application of INS. As the parties agree that, under INS, the Respondent did not violate section 7116(a)(6), that allegation is dismissed.

B.     The Judge properly found that the alleged violation of section 7116(a)(5) should be dismissed.

      In INS, the Authority determined that the Judge had made a finding, to which no exceptions had been filed, that the complaint alleged only a derivative violation of section 7116(a)(5) of the Statute. INS, 55 FLRA at 79 n.20. It left "to the parties and Judge on remand" the issue of "whether it would be appropriate, or feasible, for the Judge to permit the General Counsel to, in effect, relitigate the complaint as an independent--rather than derivative--violation of section 7116(a)(5)." [n3]  Id. at 79 n.21 (emphasis added). [ v56 p725 ]

      The relevant issue on remand was whether relitigation of the complaint as an independent, rather than a derivative, violation of section 7116(a)(5) was appropriate or feasible. Id. at 79 n.21. However, neither the General Counsel nor the Charging Party took the opportunity to present arguments concerning this issue. Instead, they disputed before the Judge, and continue to dispute before the Authority, whether the Judge erred in finding that only a derivative section 7116(a)(5) violation was before him in the initial proceeding. In particular, while the General Counsel conceded on remand that "[t]he [c]omplaint drafted the 7116(a)(5) allegation in a form often referred to as a 'derivative' allegation," General Counsel's Brief on Remand at 11, the General Counsel did not move to amend or relitigate the complaint. [n4] 

      There were no exceptions or cross-exceptions to the Judge's finding in the first decision that only a derivative section 7116(a)(5) violation was before him. [n5]  See INS at 79 & n.20. Therefore, that matter is not properly before the Authority. See U.S. Department of Veterans Affairs, Medical Center, Jamaica Plain, Massachusetts, 52 FLRA 724, 728 (1996) (respondent waived objection to judge's decision on