Pension Benefit, Guaranty Corporation (Respondent) and National Association, of Government Employees, Local R3-77 (Charging Party)

[ v59 p48 ]

59 FLRA No. 11

PENSION BENEFIT
GUARANTY CORPORATION
(Respondent)

and

NATIONAL ASSOCIATION
OF GOVERNMENT EMPLOYEES,
LOCAL R3-77
(Charging Party)

WA-CA-00602

_____

DECISION AND ORDER

August 20, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, andCarol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the General Counsel (GC), and cross-exceptions filed by the Respondent. The Respondent filed an opposition to the GC's exceptions, and the GC filed an opposition to the Respondent's cross-exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing an organizational change (the realignment), and by physically relocating two employees (the office move), without completing bargaining with the Charging Party (Union). The Judge found that the Respondent did not violate the Statute, and he dismissed the complaint.

      Upon consideration of the Judge's decision and the entire record, we find that the Respondent violated § 7116(a)(1) and (5) of the Statute. In addition, we grant the GC's requested relief but only to the extent set forth herein. We deny the Respondent's cross-exception.

II.     Background and Judge's Decision

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

      The Respondent informed the Union that it intended to realign a particular function, and the employees who perform that function, to a different department (the transferee department). The Respondent invited the Union to submit impact and implementation proposals and stated that it had not yet decided whether the employees would be physically relocated.

      The Union submitted proposals, but the Respondent implemented the realignment without responding. Subsequently, the parties discussed the proposals. The Respondent told the Union that the realignment would not affect employees' duties, pay, or benefits, and demanded that the Union identify the adverse effects that its proposals were intended to ameliorate. The Union responded that it "looked forward to receiving" proposals from the Respondent and that it intended to submit its own supplemental proposals. Judge's Decision at 10.

      Later, the Respondent notified the Union that the realigned employees would be physically relocated and suggested that the parties meet within a week. When the Union responded that it could not meet during that timeframe, the Respondent informed the Union that it was implementing the office move in accordance with the parties' collective bargaining agreement, and it moved the realigned employees into new offices. [n2] 

      The Union filed a charge, and the GC issued a complaint, alleging that the Respondent violated § 7116(a)(1) and (5) of the Statute by implementing the realignment and the office move without completing bargaining.

      At the outset of his decision, the Judge granted the GC's motion to strike documents attached to the Respondent's post-hearing brief because he found that the Respondent previously had several opportunities to introduce those documents but failed to do so.

      Addressing the merits of the complaint, the Judge stated that there is no obligation to bargain "over the impact and implementation of a management right that has only a de minimis effect on conditions of employment," [ v59 p49 ] and "[w]hen a proposal constitutes an arrangement, i.e., when it addresses an adverse effect that is more than de minimis, it then falls to the Authority to determine whether the arrangement is appropriate or whether it excessively interferes with the exercise of a management right." Id. at 13. The Judge also stated that, "for the Union to establish that any of its proposals was an `arrangement' within the meaning of § 7106, it must have identified the effects, or reasonably foreseeable effects, on bargaining unit employees that flowed from the exercise of the management right and how those effects are adverse." Id.

      With regard to the realignment, the Judge found that the adverse effects addressed by the Union's proposals had been "fully addressed" in discussions where the Respondent had assured the Union that the transferred employees would not be adversely affected. Id. at 14. Finding "no evidence that the Union ever identified the adverse effects" that the realignment-related proposals were intended to ameliorate, the Judge concluded that the GC did not establish that the Respondent had an obligation to bargain over the realignment. Id. at 15.

      With regard to the office move, the Judge rejected the GC's assertion that the Respondent should not have implemented that move while the Union's proposal regarding that move (substantive proposal 15) was pending. The Judge found no evidence that the negative effects that the move allegedly had on one employee (the affected employee) were communicated to the Respondent prior to the filing of the ULP charge. In addition, the Judge rejected the GC's assertion that the Respondent "is not entitled to rely on its alleged compliance with" the parties' agreement, because the GC provided "no basis" for finding that the agreement is not binding. Id. at 16.

      The Judge concluded that the Respondent did not violate the Statute, and dismissed the complaint.

III.     Positions of the Parties

A.     GC's Exceptions

      The GC argues that the Respondent violated the Statute by failing to bargain over the realignment and the office move. According to the GC, the effects of those changes were, and reasonably should have been expected to be, greater than de minimis. The GC asserts that, because the Respondent failed to respond to the Union's proposals before implementing the realignment, the negotiability of the realignment-related proposals is irrelevant. The GC also asserts that the Respondent implemented the office move without bargaining over a negotiable proposal (substantive proposal 15). In addition, the GC claims that the Judge should not have considered the Respondent's argument that the Respondent complied with the parties' agreement because the Respondent failed to raise a contractual defense prior to filing its post-hearing brief.

      The GC argues that the Authority should order the Respondent to post, in customary places, a notice signed by the Respondent's Executive Director, and should order the Respondent to bargain in good faith. In addition, the GC requests the Authority to award a "partial" status quo ante remedy requiring the Respondent to: resume assigning the affected employee settlement work; resume assigning that employee her own laptop computer and printer; resume paying her for overtime work; return the two employees to their previous offices; and provide the affected employee with the same number of bookcases she had before the move. GC's Exceptions at 43. Further, the GC requests that the Authority direct the Respondent to award the affected employee a quality step increase (QSI), which the GC says she would have received if the realignment had occurred twelve days later than it occurred.

B.      Respondent's Opposition

      The Respondent asserts that the effects of the changes were de minimis. The Respondent also asserts that "[u]nion proposals which do not identify and address adverse effects create no duty to bargain." Resp't Opp'n at 30. In addition, the Respondent contends that it had no obligation to bargain because "[t]he alleged harms are not terms and conditions of employment, but are part of the exercise of [the Respondent's] § 7106 rights." Id. at 28.

      The Respondent disputes the GC's assertion that substantive proposal 15 is negotiable, claiming that the proposal "adversely affects agency security" and constitutes an attempt "to bargain over non-bargaining[-] unit employees." Resp't Post-Hearing Brief at 28 (incorporated by reference in Resp't Opp'n). Moreover, the Respondent argues that "[m]ost of the so-called `adverse effects'" on employees, and substantive proposal 15, are "covered by" the parties' agreement. Resp't Opp'n at 36.

      Finally, the Respondent asserts that a status quo ante remedy is inappropriate because it would disrupt the efficiency and effectiveness of its operations. The Respondent states that the realignment was prompted by an Inspector General (IG) report noting conflict of interest problems; and returning the transferred employees to their previous offices would require a disruptive chain of bumping staff from their offices. The Respondent also asserts that a status quo ante remedy is not appropriate [ v59 p50 ] because the Authority's Regional Office delayed processing the charge and failed to inform the Respondent as to what adverse effects on employees existed.

C.     Respondent's Cross-Exceptions

      The Respondent asserts that, under § 2429.5 of the Authority's Regulations, the Authority should take official notice of the documents that it attempted to introduce in its post-hearing brief or, in the alternative, that the record should be reopened. [n3]  The Respondent argues that "due process," and "fundamental fairness of the administrative process, 5 U.S.C. § 556(d), (e)," support a conclusion that the provisions should be admitted in evidence. [n4]  Resp't Cross-Exceptions at 8.

D.     GC's Opposition

      The GC asserts that the Judge did not abuse his discretion by refusing to take official notice of the documents attached to the Respondent's post-hearing brief.

IV.     Analysis and Conclusions  [n5] 

A.     The Respondent violated § 7116(a)(1) and (5) of the Statute.

      Prior to implementing a change in conditions of employment, an agency must provide the exclusive representative with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain under the Statute. United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999). When, as here, an agency exercises a reserved management right and the substance of the decision is not itself subject to negotiation, the agency nonetheless has an obligation to bargain over the procedures to implement that decision and appropriate arrangements for unit employees adversely affected by that decision, if the resulting change has more than a de minimis effect on conditions of employment. See Dep't of HHS, SSA, 24 FLRA 403, 407-08 (1986). However, even if the change has more than a de minimis effect on conditions of employment, an agency does not have an obligation to bargain before making the change if the subject matter of the change is "covered by" the parties' collective bargaining agreement. See United States Dep't of HHS, SSA, Balt., Md., 47 FLRA 1004, 1017-19 (1993).

      If an agency has an obligation to bargain, then it can satisfy that obligation by reaching agreement with the union, or bargaining in good faith to impasse over negotiable proposals submitted by the union. This obligation to bargain is predicated on the union's submission of negotiable proposals. An agency may refuse to bargain where it contends that the proposals submitted by the union are nonnegotiable. See United States Dep't of HUD, 58 FLRA 33 (2002) (HUD). However, the agency acts at its peril if it then implements the proposed change in conditions of employment. See, e.g., United States Dep't of HHS, SSA, Balt., Md., 39 FLRA 258, 262-63 (1991). If all pending union proposals are nonnegotiable, then the agency will not be found to have violated the Statute by implementing the change without bargaining over them. However, if any pending union proposals are negotiable, then the agency will be found to have violated the Statute by implementing the change without satisfying its obligation to bargain over the negotiable proposals and either reaching agreement or declaring impasse. See, e.g., Fed. Bureau of Prisons, Fed. Corr. Inst., Bastrop, Tex., 55 FLRA 848, 852 (1999) (FCI Bastrop) (then-Chair Segal concurring on other grounds). In a ULP case, the respondent has the burden of demonstrating that all proposals on the table were nonnegotiable; the GC does not have the burden to establish their negotiability. See, e.g., United States DOJ, INS, Wash., D.C., 56 FLRA 351, 356 (2000) (then-Member Cabaniss dissenting on other grounds).

      In sum, in determining whether an agency committed an unfair labor practice by failing to bargain when making a change in conditions of employment, the first inquiry is whether the agency had an obligation to bargain [ v59 p51 ] at all under the circumstances. If it did, then the next inquiry-- whether the agency satisfied its bargaining obligation -- may focus on the negotiability of the union's proposals and the agency's response to those proposals.

      In the instant case, the Judge erred by combining these two inquiries. Specifically, in determining whether the agency had an obligation to bargain, the Judge addressed the negotiability of the proposals, a matter that is only relevant once it is determined that an obligation to bargain exists.

      For the following reasons, we find that the Agency did have an obligation to bargain and that the Agency did not satisfy that obligation. In particular, we reject the Respondent's arguments that: (1) the effects of the changes were de minimis; (2) the Respondent's bargaining obligation was satisfied because the Union failed to submit negotiable proposals; and (3) the changes were "covered by" the collective bargaining agreement. Accordingly, we conclude that the Respondent violated the Statute as alleged. [n6] 

1.     De minimis doctrine

      In applying the de minimis doctrine, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employees' conditions of employment. United States Dep't of the Treasury, IRS, 56 FLRA 906, 913 (2000) (IRS). In determining whether the reasonably foreseeable effects of a change are greater than de minimis, the Authority addresses what a respondent knew, or should have known, at the time of the change. See VA Med. Ctr., Phoenix, Ariz., 47 FLRA 419, 423 (1993) (citation omitted). We find, for the following reasons, that the reasonably foreseeable effects of both the realignment and the office move were greater than de minimis.

a.     The realignment

      The Authority has found that effects were greater than de minimis where a change affected, among other things: the amount of employee travel, FAA, Wash., D.C., 19 FLRA 436, 437 (1985); an employee's ability to earn overtime, United States Customs Serv., S.E. Region, El Paso, Tex., 44 FLRA 1128, 1129 (1992); and the equipment used by the employee, IRS, 56 FLRA at 913.

      Undisputed record evidence indicates that: (1) prior to the realignment, the affected employee worked on the majority of settled cases and attended the settlements, which involved travel that amounted to one to three weeks per month, Tr. at 26, 33; and (2) it was known from the outset that settlement work would not be transferred in the realignment, id. at 231-32. See also GC Ex. 3, Attachments; PBGC Ex. 2. As there is no dispute that the Respondent was aware of its travel requirements, it was reasonably foreseeable that the realignment would significantly reduce the affected employee's travel.

      In addition, undisputed record evidence indicates that, in the year prior to the realignment, the affected employee received $2000 in overtime pay and that after the realignment, there was only approximately $2000 to $3000 total available for overtime pay for all twenty-five employees in the transferee department. Tr. at 49-50. As there is no dispute that the Respondent is aware of its budget, it was reasonably foreseeable that the realignment would significantly reduce the amount of paid overtime available to the affected employee.

      Further, undisputed record evidence indicates that, before the realignment, the employee was assigned her own laptop computer, id. at 33-34, but that employees in the transferee department must share common laptops, id. at 233. As there is no dispute that the Respondent is aware of its equipment availability and policies, it was reasonably foreseeable that the realignment would result in the employee no longer having her own laptop.

      Based on the foregoing, we find that the reasonably foreseeable effects of the realignment were greater than de minimis.

b.     The office move

      The Authority has found that effects were greater than de minimis where a change resulted in, among other things, loss of access to a window, see United States Dep't of HHS, SSA, Balt., Md., 36 FLRA 655, 668 (1990), and smaller offices, EPA, 25 FLRA 787, 789-90 (1987). Undisputed record evidence indicates that, prior to the office move, the Respondent was aware that the offices that the two employees were intended to be reassigned to would be interior offices and would be smaller than 130 square feet. See GC Ex. 6; Tr. at 215; Resp't Ex. 7. In these circumstances, it was reasonably foreseeable that the office move would result in the affected employee losing access to a window and having [ v59 p52 ] a smaller office -- effects which we find to be greater than de minimis.

2.     Negotiability defense

      We find, for the following reasons, that the Respondent has not established a negotiability defense to its implementation of the realignment or the office move.

a.     The realignment

      The Authority has held that the obligation to bargain includes, "at a minimum, the requirement that a party respond to a bargaining request." United States DOJ, INS, 55 FLRA 892, 900 (1999) (citation omitted). Thus, an agency may not "relieve itself of liability by asserting for the first time in [a] ULP proceeding that the union's proposals were nonnegotiable." Id.

      The Respondent implemented the realignment before it responded to the Union's proposals. Consistent with precedent, the Respondent may not relieve itself of liability by raising, for the first time in these ULP proceedings, a negotiability defense to its implementation of the realignment.

b.     The office move  [n7] 

      Substantive proposal 15, which addresses the office move, would require that employees be assigned to offices with at least 130 square feet and a window. Even assuming that the Respondent's reference to "agency security" is intended to assert that the proposal affects management's right to determine internal security practices under § 7106(a)(1), the Respondent does not explain how the proposal affects that right. [n8]  Further, the Respondent provides no support for its claim that the proposal is outside the duty to bargain because it involves "non-bargaining unit employees." Resp't Post-Hearing Brief at 28. Therefore, the Respondent does not satisfy its burden of demonstrating that the proposal is nonnegotiable.

3.     "Covered by" doctrine

      The Authority previously has declined to consider arguments that were raised for the first time in post-hearing briefs. See, e.g., United States Army Armament Research, Dev. & Eng'g Ctr., Picatinny Arsenal, N.J., 52 FLRA 527, 534 (1996) (Picatinny Arsenal) (affirmative defense based on § 7118 of the Statute); FDA, Mid-Atl. Region, Phila., Pa., 48 FLRA 424, 430-31 (1993) (argument that a file is not normally maintained by respondent in the regular course of business). This is consistent with private sector precedent, which holds that, absent "extenuating circumstances, such as previously unavailable evidence," a respondent may not raise a significant issue for the first time in its post-hearing brief. Trident Seafoods, Inc. v. N.L.R.B., 101 F.3d 111, 117 (D.C. Cir. 1996) (Trident Seafoods) (citations omitted).

      The fact that a respondent refers to a collective bargaining agreement and states as a theory of the case that it acted "in accordance with" that agreement is insufficient to raise a "covered by" defense. United States Dep't of HUD, 56 FLRA 592, 596 (2000) (judge's decision adopted by Authority). Further, the fact that a respondent introduces limited witness testimony concerning a matter does not, by itself, put the GC "on notice" that the matter is in issue. See Trident Seafoods, 101 F.3d at 117.

      The Respondent did not raise a "covered by" argument in its answer to the complaint, see GC Ex. 1(e), its prehearing disclosure, see Resp't Pre-Hearing Disclosure at 2-3, or its opening statement at the hearing, see Tr. at 12-15. Although the Respondent introduced limited portions of the parties' agreement into evidence and elicited limited witness testimony regarding that agreement, see, e.g., Tr. at 63-64, the Respondent never indicated that it was raising a "covered by" argument during the hearing. Further, the Respondent provides no evidence of extenuating circumstances, such as previously unavailable evidence, that excuse its failure to raise a "covered by" argument prior to its post-hearing brief. Thus, consistent with precedent, we decline to consider the Respondent's "covered by" defense in this case. [n9]  [ v59 p53 ]

B.     We grant a modified version of the requested notice, posting, and order to bargain in good faith.

      The GC requests that the notice be signed by the Respondent's Executive Director and posted in customary places, and that the Respondent be directed to bargain in good faith. These requested remedies are consistent with the Authority's traditional remedies, and we find it appropriate to grant them in this case. See, e.g., United States Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Nat'l Ocean Serv., Coast & Geodetic Survey, Aeronautical Charting Div., Wash., D.C., 54 FLRA 987, 1021 (1998) (notice and posting); GSA, Nat'l Capital Region, Fed. Protective Serv. Div., Wash., D.C., 52 FLRA 563, 568 (1996) (order to bargain in good faith at union's request).

      We note, however, that the Union submitted no proposals that were within the Respondent's duty to bargain regarding the realignment. In that regard, in urging that the Respondent improperly implemented a change while negotiable matters were still pending, the General Counsel argued only that proposal 6 was within Respondent's duty to bargain, and hence an unfair labor practice was committed by Respondent's failure to fulfill its bargaining obligation as to that one proposal. The Judge, however, found that proposal 6 was moot under the circumstances, and the General Counsel did not except to that finding. In light of the Union submitting no proposals that were within the Respondent's duty to bargain regarding the realignment, we require the Respondent only to engage in a posting regarding its improper actions relating to the realignment. To hold otherwise would provide a charging party with a greater bargaining entitlement than if no unfair labor practice had been committed. And, as the Authority has noted, remedies are designed to recreate the conditions as they would have been had the unfair labor practice not been committed. See, e.g., United States Dep't of Justice, Bureau of Prisons, Safford, Ariz., 35 FLRA 431, 444-45 (1990), quoting Local 60, United Bro. Of Carpenters and Joiners v. NLRB, 365 U.S. 651, 657 (1961).

      The same concern, albeit not to the same extent, is present in that part of the case relating to the relocation of the employees. There, in arguing that the Respondent had improperly implemented its actions while bargainable matters were still pending, the General Counsel argued only that proposal 15 was within the Respondent's duty to bargain. Thus, in recreating the conditions that would be present had the Respondent not improperly implemented the relocation, there would be only the one proposal upon which the Respondent would have to negotiate. Accordingly, we modify the remedy as to the relocation as well, to extend only to this one negotiable proposal.

C.     We grant the GC's remaining, requested remedies in part.

      The GC requests "partial" status quo ante relief. GC's Exceptions at 43. 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 Fed. Corr. Inst., 8 FLRA 604, 606 (1982) (FCI). The FCI factors are: (1) whether and when notice was given to the union by the agency concerning the change; (2) whether and when the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligation; (4) the nature and extent of the adverse impact on unit employees; and (5) whether and to what degree a status quo ante remedy would disrupt the efficiency and effectiveness of the agency's operations. [n10]  United States Dep't of Energy, W. Area Power Admin., Golden, Colo., 56 FLRA 9, 13 (2000). With regard to the fifth factor, the Authority has held that a finding that a status quo ante would be disruptive to the operations of an agency must be "based on record evidence." Id. We address the realignment and the office move separately below.

1.     The realignment

      The GC requests that we direct the Respondent to resume: assigning the affected employee settlement work; assigning her a laptop computer and printer; and paying her for overtime work.

      The first FCI factor weighs against granting these remedies because the Respondent gave the Union notice of the realignment, invited proposals, and permitted the Union attend a management briefing prior to implementing the realignment. On the other hand, the second and third FCI factors weigh in favor of granting these remedies because the Union timely requested bargaining and the Respondent willfully implemented the realignment without responding to the Union's proposals.

      The fourth and fifth FCI factors apply differently to the separate requested remedies. With regard to the request to resume assigning the affected employee settlement work, the cessation of settlement duties significantly [ v59 p54 ] reduced the amount of the affected employee's travel. However, record evidence indicates that resuming assignment of those duties to the employee could disrupt the efficiency and effectiveness of the Respondent's operations. See Resp't Ex. 13 at 5 (IG report critical of how audits previously were performed and recommending "appropriate separation of duties"); Tr. at 255 (testimony that auditing and collection work should be separate). In these circumstances, we find it inappropriate to direct the Respondent to assign the employee settlement work.

      With regard to the remainder of the requested remedies, the realignment resulted in the affected employee not having her own laptop and printer and thus not being able to work at home as effectively as before, and no longer being able to earn significant amounts of additional income for her overtime work. There is no argument that the Respondent is prohibited from paying the employee for overtime, and there is no record evidence that these remedies would disrupt the effectiveness or efficiency of the Respondent's operations. In these circumstances, we find it appropriate to direct the Respondent to resume assigning the employee a laptop computer and printer and resume paying her for overtime work.

2.     The office move

      The GC requests that we direct the Respondent to return the two employees to their previous offices and provide the adversely affected employee with the same number of bookcases she had before the move.

      The first FCI factor weighs against granting this relief because the Respondent gave the Union notice and an opportunity to bargain over the change. However, the remaining FCI factors support this relief. As for the second and third factors, the Union requested bargaining shortly after receiving notice from the Respondent, and the Respondent's actions -- telling the Union that it could not wait more than a week to implement and proceeding to implement when the Union stated that it could not meet within that week -- demonstrate that its failure to bargain was willful. With regard to the fourth factor, the affected employee was assigned fewer bookcases and was reassigned to a smaller, windowless office. With regard to the fifth factor, the Respondent does not cite any record evidence that the requested relief would disrupt its operations. The Respondent also does not dispute the GC's assertion that the Respondent's operations were not adversely affected when the two employees were still working in those offices but realigned to their current department.

      In these circumstances, we find it appropriate to direct the Respondent to return the two employees to their previous offices and provide the affected employee with the same number of bookcases that she had before the move.

D.     We do not direct the Respondent to award the affected employee a QSI.

      The GC argues that the affected employee should be awarded a QSI because she would have received one if the realignment had occurred twelve days later. For an employee to be entitled to backpay under the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A), it must be "clear" than an unjustified and unwarranted personnel action "resulted in the loss of some pay." United States Dep't of the Air Force, Travis Air Force Base, Cal., 56 FLRA 434, 438 (2000).

      There is record testimony indicating that, but for the realignment, the affected employee might have received a QSI. See, e.g., Tr. at 51-52 (employee would have received apprisal from previous supervisor if realignment occurred twelve days later); 240-41 (previous supervisor indicated employee's performance prior to realignment was outstanding); and 241 (expired NTEU agreement permits QSI for outstanding appraisal). However, there is no record evidence indicating that the employee would have received a QSI absent the unlawful implementation of the realignment. Thus, we find no basis under the Back Pay Act for directing the Respondent to award the affected employee a QSI.

V.     Order

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Pension Benefit Guaranty Corporation (the Respondent) shall:

      1. Cease and desist from:

           (a) Refusing to bargain in good faith with the National Association of Government Employees, Local R3-77 (the Union) concerning the impact and implementation of the realignment of the Respondent's auditing function.

           (b) Refusing to bargain in good faith with the Union concerning the impact and implementation of the office move of Deborah Schnitz and Fred Nelson.

           (c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights under the Statute. [ v59 p55 ]

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

           (a) Resume assigning Deborah Schnitz her own laptop computer and printer.

           (b) Resume paying Deborah Schnitz for overtime work.

           (c) Return Deborah Schnitz and Fred Nelson to the offices that they occupied prior to the office move.

           (d) Provide Deborah Schnitz with the same number of bookcases that she had prior to the physical relocation.

           (e) Upon request, bargain in good faith with the Union over Union proposal 6, concerning the impact and implementation of the realignment of the Respondent's auditing function.

           (f) Upon request, bargain in good faith with the Union over Union proposal 15, concerning the impact and implementation of the physical relocation of Deborah Schnitz and Fred Nelson.

           (g) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Executive Director of the Respondent 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.

           (h) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Washington Regional Office, 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 Pension Benefit Guaranty Corporation (the Respondent) violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT refuse to bargain in good faith with the National Association of Government Employees, Local R3- 77, the exclusive representative of unit employees (the Union), concerning the impact and implementation of the realignment of the Respondent's auditing function.

WE WILL NOT refuse to bargain in good faith with the Union concerning the impact and implementation of the office move of Deborah Schnitz and Fred Nelson.

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

WE WILL resume assigning Deborah Schnitz her own laptop computer and printer.

WE WILL resume paying Deborah Schnitz for overtime work.

WE WILL return Deborah Schnitz and Fred Nelson to the offices that they occupied prior to the office move.

WE WILL provide Deborah Schnitz with the same number of bookcases that she had prior to the office move.

WE WILL, upon request, bargain in good faith with the Union over Union proposal 6, concerning the impact and implementation of the realignment of the Respondent's auditing function.

WE WILL, upon request, bargain in good faith with the Union over Union proposal 15, concerning the impact and implementation of the physical relocation of Deborah Schnitz and Fred Nelson.

______________________
(Activity)

Dated:__________ By:____________________

      (Signature)
Executive Director, Pension
Benefit Guaranty Corporation

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, Washington Regional Office, Federal Labor Relations Authority, whose address is Tech World Plaza, 800 K Street, NW, Suite 910N, Washington, D.C. 20001, and whose telephone number is (202) 482-6702. [ v59 p56 ]


Opinion of Member Carol Waller Pope, dissenting in part:

      I agree with the majority on all points except one. The majority orders the parties to bargain over the changes in conditions of employment at issue but limits that bargaining to two proposals that the Charging Party made during its initial attempt to bargain over these changes. There is no basis in law or logic for this limitation.

      There is no question that Authority precedent does not support limiting the bargaining order in this case. In particular, after finding that a respondent has failed to bargain in good faith and that certain union proposals at issue were negotiable, the Authority orders unlimited bargaining over changes in conditions of employment. See, e.g., United States Dep't of HUD, 58 FLRA 33, 36 (2002) (Member Pope concurring and Chairman Cabaniss dissenting as to negotiability of proposal) (respondent directed to bargain "to the extent required by law" over changes); Dep't of Veterans Affairs, Veterans Admin. Med. Ctr., Decatur, Ga., 46 FLRA 339, 347 (1992) (directing respondent to bargain over a particular subject matter found negotiable as well as "other negotiable proposals concerning the impact and implementation of its decision"). In this connection, even where the Authority has addressed the negotiability of only a limited number of proposals on the table, the Authority's bargaining orders have not been limited to those specific proposals.

      The majority ignores, and thus provides no reason for abandoning, this precedent. Moreover, the reason provided by the majority for its decision to limit the bargaining order -- to recreate the conditions that would have been present if the ULP had not occurred -- is patently wrong. In fact, limiting bargaining to specific past proposals rewards the Respondent for its unlawful actions. In this connection, the Respondent implemented the disputed realignment without responding at all to the Union's proposals and without any bargaining. Although the Respondent did respond to the Union's proposals regarding the office move, it similarly failed to bargain over that change. In both situations, if the Respondent had bargained in good faith, then the Union would have had the opportunity to offer additional proposals and counter-proposals. As such, a full bargaining order in no way provides the Charging Party with "a greater bargaining entitlement than if no unfair labor practice had been committed." Majority Opinion at 14. Rather, it provides the Charging Party with exactly what it was deprived of: the right to bargain.

      Finally, limiting the scope of the bargaining order to proposals 6 and 15 simply makes no sense in the circumstances of this case. According to the Judge's decision, proposal 6 would have permitted two specific employees to "express their preferences" with respect to the realignment. Judge's Decision at 15. The record is clear that, when the realignment actually took place, these employees were not included. The majority is thus requiring the parties to bargain only over employees whose conditions of employment were not changed by the Respondent.

      As for the office move, Proposal 15 provided employees who were to be moved with window offices of a certain size. In fact, two employees were moved. However, we grant status quo ante relief requiring the Respondent to rescind those two moves. The Agency may propose new office moves. Nevertheless, whether it will do so is unclear and, if it does, it is equally unclear whether the Respondent will propose the same changes at issue here or different changes entirely. In these circumstances, the majority's bargaining order -- limiting future bargaining to Proposal 15 -- is nonsensical: it both requires the parties to bargain now over changes that no longer exist and limits future bargaining to a proposal that may be utterly irrelevant if the Respondent decides to propose different changes.

      For the foregoing reasons, I dissent from the majority's decision to limit the bargaining order.


File 1: Authority's Decision in 59 FLRA No. 11 and Opinion of Member Pope
File 2: ALJ's Decision


Footnote # 1 for 59 FLRA No. 11 - Authority's Decision

   Member Pope's separate opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 11 - Authority's Decision

   The agreement to which the Respondent referred is an expired agreement between the Respondent and a different union (the National Treasury Employees Union), which was the previous exclusive representative of unit employees. It is not necessary to address the status of that agreement to resolve the complaint; we refer to it as "the parties' agreement" herein.


Footnote # 3 for 59 FLRA No. 11 - Authority's Decision

   Section 2429.5 of the Authority's Regulations provides, in pertinent part: "The Authority will not consider evidence offered by a party, or any issue, which was not presented in the proceedings before the . . . Administrative Law Judge . . . . The Authority may, however, take official notice of such matters as would be proper."


Footnote # 4 for 59 FLRA No. 11 - Authority's Decision

   5 U.S.C. § 556 provides, in pertinent part:

(d) . . . A sanction may not be imposed or rule or order issued except on consideration of the whole record . . . and supported by and in accordance with the reliable, probative, and substantial evidence. . . . A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. . . .
(e) The transcript of testimony and exhibits, together with all papers and requests . . . constitutes the exclusive record . . . .

Footnote # 5 for 59 FLRA No. 11 - Authority's Decision

   We deny the Respondent's cross-exception, asserting that the Judge erred in granting the GC's motion to strike certain documents that the Respondent had attached to its post-hearing brief. It is well-established that the determination of matters to be admitted into evidence is within the discretion of an administrative law judge. See United States Dep't of VA, VA Med. Ctr., Asheville, N.C., 57 FLRA 681, 682 (2002). As found by the Judge, the Respondent had several opportunities to introduce the documents before filing its post-hearing brief, but failed to do so. In these circumstances, we find that the Judge did not abuse his discretion by granting the GC's motion to strike the documents, and we deny the cross-exception.


Footnote # 6 for 59 FLRA No. 11 - Authority's Decision

   We note that, although the Respondent claims that many effects of the changes resulted from the exercise of management rights, that does not demonstrate that the Respondent had no bargaining obligation. In this connection, the fact that adverse effects flow from the exercise of a management right means only that a bargaining obligation is limited to the impact and implementation of the change -- not that there is no bargaining obligation at all. See FCI Bastrop, 55 FLRA at 852.


Footnote # 7 for 59 FLRA No. 11 - Authority's Decision

   Unlike the proposals concerning the realignment, the Respondent did respond to the Union's proposal concerning the office move before implementing the office move. Thus, we consider whether the Respondent has established that the Union's proposal concerning that move is outside the duty to bargain.


Footnote # 8 for 59 FLRA No. 11 - Authority's Decision

   The Respondent's reliance on NAGE, Local R1-109, 56 FLRA 1043 (2001), is misplaced. In NAGE, Local R1-109, a negotiability case, the union did not dispute the agency's assertion that a proposal affected management rights under § 7106(a), and thus, the Authority addressed whether the proposal fell within one of the exceptions set forth in § 7106(b). See id. at 1044. Here, the GC clearly disp