United States, Department of Justice, Immigration and Naturalization, Service, Los Angeles, California (Respondent) and American Federation of Government Employees, Local 505, AFL-CIO (Charging Party)

[ v59 p387 ]

59 FLRA No. 56

UNITED STATES
DEPARTMENT OF JUSTICE
IMMIGRATION AND NATURALIZATION
SERVICE, LOS ANGELES, CALIFORNIA
(Respondent) [n1] 

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
LOCAL 505, AFL-CIO
(Charging Party)

SF-CA-02-0506

_____

DECISION AND ORDER

October 9, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

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 Respondent, and cross-exceptions filed by the General Counsel (GC).

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally terminating an alternative work schedule that allowed employees to work four days per week, ten hours per day (the 4-10 schedule). The Judge found that the Respondent violated the Statute as alleged, and he granted status quo ante and make-whole relief.

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

II.     Background and Judge's Decision

      The Respondent notified the Union that it intended to terminate the 4-10 schedule. When the Respondent terminated the schedule without bargaining, the Union filed a charge, and the GC issued a complaint alleging that the termination violated § 7116(a)(1) and (5) of the Statute.

      Before the Judge, the parties disputed whether the Union timely requested bargaining after receiving notice of the proposed change. The parties stipulated that, if the Judge found that the Union's written bargaining request was delivered to the Respondent on the day it was dated, then the Respondent committed the ULP as alleged. The parties also stipulated that the Respondent was required, under 5 U.S.C. § 6131 (§ 6131), to bargain over the substance of the schedule termination. [n2] 

      The Judge found that the Union's written request was delivered on the day it was dated. The Judge concluded that the Respondent violated the Statute as alleged, and he recommended a cease and desist order and the posting of a notice.

      In resolving the GC's request for status quo ante relief, the Judge applied the factors set forth in Fed. Corr. Inst., 8 FLRA 604 (1982) (FCI). [n3]  In addressing whether and to what degree such relief would disrupt the Respondent's operations, the Judge noted witness testimony that the change permitted the Respondent to perform its work more efficiently. The Judge found, however, that the effect of the testimony was "diminished by the absence of evidence of the number of employees who had participated in [alternative work schedules]" as well as the fact that the Respondent retained a 5/4/9 schedule that allowed "a four day workweek, albeit in alternate weeks." Id. at 10. The Judge concluded that, although status quo ante relief might result in "inconvenience" to the Respondent, "there is no evidence to suggest that it would cause a significant disruption in the Respondent's operations." Id. Balancing the FCI factors, the Judge concluded that status quo ante relief was appropriate. The Judge also directed the Respondent to restore to unit employees "any annual or sick leave which they took for time during which they [ v59 p388 ] would have been off of work" if the Respondent had not terminated the 4-10 schedule. Id. at 11.

III.     Positions of the Parties

A.     Respondent Exceptions

      The Respondent excepts to the Judge's order to restore the 4-10 schedule and to his finding that this remedy would not cause a significant disruption to the Respondent's operations. According to the Respondent, the Judge should have applied a "special circumstances" standard, rather than the FCI factors, in determining whether status quo ante relief was appropriate. Resp't Exceptions at 6. The Respondent argues that, even assuming the FCI factors apply here, status quo ante relief is not warranted. In this connection, the Respondent claims that the Judge failed to properly consider the extent to which such relief would disrupt Respondent operations, noting testimony that the change allowed the Respondent to perform its work more efficiently.

      The Respondent also excepts to the Judge's order to restore employees' leave, contending that: it is impossible to know how much leave employees would have requested if they had remained on the 4-10 schedule; the Judge made no finding that any employees actually suffered a loss of leave; the remedy requires the Respondent to compensate employees for hours that the employees did not work; and the remedy would create a "windfall" for employees because it fails to take into account any benefits the new schedules have on employees' leave balances. Id. at 11. For support, the Respondent cites: Dep't of Def. Dependents Schs., 54 FLRA 259 (1998) (DODDS); Dep't of Veterans Affairs Med. Ctr., Asheville, N.C., 51 FLRA 1572 (1996); United States Dep't of the Air Force, Griffiss Air Force Base, Rome, N.Y., 37 FLRA 570 (1990) (Griffiss AFB), enforced, 949 F.2d 1169 (D.C. Cir. 1991); and FAA, Wash., D.C., 27 FLRA 230 (1987) (FAA, Wash.).

      Finally, the Respondent excepts, without further elaboration, to the Judge's cease and desist order and direction to post a notice signed by the District Director, as well as findings by the Judge that: the Union timely requested bargaining; the Respondent did not address the status quo ante issue in its brief; the notice of the change merely stated termination of the 4-10 schedule was necessary to maintain the program's integrity, reliability and efficiency; and the Respondent committed the alleged ULP. See Resp't Exceptions at 5-6.

B.     GC Opposition and Cross-Exceptions

      The GC agrees with the Judge's decision to award status quo ante relief, but contends that this decision should have been based on § 6131, not the FCI factors. See GC Cross-Exceptions at 1. For support, the GC cites: Def. Logistics Agency, Def. Indus. Plant Equip. Ctr., Memphis, Tenn., 44 FLRA 599 (1992); and United States EPA, Research Triangle Park, N.C., 43 FLRA 87 (1991). See GC Brief at 5. In addition, according to the GC, the Respondent's remaining exceptions "fail[] to present a single argument in support of [the Respondent's] position[.]" Id. at 4.

IV.     Analysis and Conclusions

A.     The Judge did not err in granting status quo ante relief, but he erred in the analysis he applied in granting such relief.

      Where an agency has an obligation to bargain over the substance of a matter, and fails to meet that obligation, the Authority will grant a status quo ante remedy in the absence of special circumstances. See Air Force Logistics Command, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 53 FLRA 1664, 1671 (1998) (Robins Air Force Base). By contrast, where an agency has an obligation to bargain over only the impact and implementation of a matter, and fails to meet that obligation, the Authority applies the factors set forth in FCI, 8 FLRA 604, to determine whether a status quo ante remedy is appropriate. See United States Dep't of Energy, W. Area Power Admin., Golden, Colo., 56 FLRA 9, 13 (2000).

      As the parties stipulated that the Respondent had an obligation to bargain over the substance of the change in this case, the Judge should have applied the special circumstances standard, rather than the FCI factors, in determining whether status quo ante relief is appropriate. See Robins Air Force Base, 53 FLRA at 1671. In this regard, § 6131 confirms that parties are required to bargain over the substance of proposed terminations of alternative work schedules and sets forth the standard ("adverse agency impact") for when the Panel will approve proposed terminations. However, contrary to the argument of the GC, § 6131 does not provide remedies for ULP violations. Accordingly, consistent with the above-cited precedent, we deny the GC's cross-exception and apply the special circumstances standard here.

      The Respondent does not assert that special circumstances are present in this case. To the extent that the Respondent's contention that the change has allowed the Respondent to perform its work more efficiently can be construed as a claim that special circumstances are present, Authority precedent supports rejecting that claim. In this connection, even where a respondent made a more specific claim of disruption ("significant programming and scheduling problems") than the Respondent's claim here, the Authority awarded status quo ante relief, relying on the judge's findings that "[n]othing in the record reflect[ed] the nature of any especial hardship experienced by [the r]espondent" prior to the change and that "it is assumed that the same circumstances would exist in returning to" the status quo. United States Info. Agency, Voice of [ v59 p389 ] Am., 33 FLRA 549, 561, 562 (1988) (VOA) (citing Judge's Decision at 20), remanded by 895 F.2d 1449 (D.C. Cir. 1990), decision on remand, 37 FLRA 849 (1990).

      Here, the Judge made a finding similar to the judge's findings in VOA. Specifically, the Judge found "no evidence to suggest that [status quo ante relief] would cause a significant disruption in the Respondent's operations." Judge's Decision at 10. Although the Respondent cites witness testimony that the change has permitted it to operate more efficiently, the Judge expressly found that testimony "diminished by the absence of evidence of the number of employees who had participated in AWS" and by the fact that the Respondent retained a 5/4/9 schedule that allowed "a four day workweek, albeit in alternate weeks." Id. The Respondent's exceptions do not provide any evidence concerning the extent of the impact resulting from a return to the status quo. Accordingly, consistent with VOA, the Respondent has not established special circumstances. Cf. United States Army Corps of Eng'rs, Memphis Dist., Memphis, Tenn., 53 FLRA 79, 85 (1997) (Authority rejected, as "too vague to establish special circumstances[,]" agency's assertion that elimination of position required by status quo ante would cause "some aberration of staffing").

B.     The Judge did not err in granting make-whole relief.

      The Authority has found leave restoration for a specified employee appropriate despite a claim that the record did not indicate whether the employee's use of leave actually resulted from the respondent's illegal actions. See 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, 1023 (1998) (NOAA). Rather than "render[ing] the remedy inappropriate," the issue of whether the respondent's illegal actions caused the use of leave involves "factual details [that] would be better considered during compliance proceedings." Id. (citing Dep't of the Navy, Norfolk Naval Shipyard, Portsmouth, Va., 15 FLRA 867, 868 (1984)). Accord DODDS, 54 FLRA at 270 ("leav[ing] for compliance the determination of any specific losses and other appropriate relief"). Further, the Authority has found leave restoration appropriate despite the fact that the record did not identify all affected employees. See Marine Corps Logistics Base, Barstow, Cal., 33 FLRA 196, 204 (1988) (ordering leave restoration to "any employee, including but not limited to, [a particular employee whose identity was reflected in the record], for any charge to annual leave incurred as a result of the unilateral change."). Accord FAA, Wash., 27 FLRA at 236 (ordering respondent, absent agreement of the parties otherwise, to provide backpay to "any employee who suffered a withdrawal or reduction in pay differentials because of" the respondent's illegal action).

      The Respondent contends that the leave restoration is improper here because: it is impossible to recreate how much leave employees would have used absent the change; the Judge did not find that any particular employees actually suffered a loss of leave; and it would provide a windfall for any employees who used less leave under the new schedule. These contentions do not provide a basis for rejecting the Judge's recommended order of leave restoration. Instead, consistent with Authority precedent, these matters are appropriate for consideration during compliance proceedings. See NOAA, 54 FLRA at 1023.

      The cases cited by the Respondent do not support a contrary conclusion. First, in Dep't of Veterans Affairs Med. Ctr., Asheville, N.C., 51 FLRA 1572, 1580 (1996), it was impossible to restore employees to the status quo; here, it is possible to do so by restoring employees' leave. Second, in Griffiss AFB, 37 FLRA at 580, the agency and union agreed, post-implementation, to deny employees the status quo ante relief sought before the Authority; here, there is no evidence of such an agreement. Third, as discussed above, DODDS, 54 FLRA 259, and FAA, Wash., 27 FLRA 230, actually support the remedy here.

      For the foregoing reasons, we find that the Judge's order of leave restoration is appropriate.

C.     The Respondent's remaining exceptions do not provide a basis for reversing the Judge's decision.

      Under the Authority's Regulations, exceptions to an administrative law judge's decision must set forth "the grounds relied upon" as well as "[s]upporting arguments, which shall set forth . . . : all relevant facts with specific citations to the record; the issues to be addressed; and a separate argument for each issue, which shall include a discussion of applicable law." 5 C.F.R. § 2423.40(a)(1), (a)(2). To satisfy the regulatory requirements, a party must both raise an exception and argue in support of that exception. See IRS, Austin Dist. Office, Austin, Tex., 51 FLRA 1166, 1176 (1996) (IRS Austin). [n4]  If the excepting party fails to do so, then the Authority will adopt the judge's challenged finding. See id.

      The Respondent excepts to the Judge's cease and desist order and direction to post a notice, as well as the Judge's findings that: the Union timely requested bargaining; the Respondent did not address the status quo ante issue in its brief; the notice of the change merely stated termination of the 4-10 schedule was necessary to maintain the program's integrity, reliability and efficiency; [ v59 p390 ] and the Respondent committed the alleged ULP. See Resp't Exceptions at 5-6. These exceptions fail to set forth any "relevant facts with specific citations to the record[,] the issues to be addressed[,] and a separate argument for each issue, [including] a discussion of applicable law[,]" as required by 5 C.F.R. § 2423.40(a). Accordingly, we deny these exceptions and adopt the Judge's findings on these points.

V.      Order

      Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Justice, Immigration and Naturalization Service, Los Angeles, California, shall:

      1.     Cease and desist from:

           (a) Terminating the 4/10 Alternative Work Schedule (AWS) option for bargaining unit employees in the Alien Criminal Apprehension Program (ACAP) without first completing bargaining with the American Federation of Government Employees, Local 505, AFL-CIO, the exclusive representative of its bargaining unit employees.

            (b) In any like or related manner, interfering with, restraining, or coercing bargaining 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 Statute:

           (a) Restore the 4/10 AWS option for ACAP employees in the collective bargaining unit represented by the American Federation of Government Employees, Local 505, AFL-CIO.

           (b) Restore to ACAP employees in the collective bargaining unit any annual or sick leave that they took for time during which they would have been off of work if the 4/10 AWS option had not been terminated in April 2002.

           (c) Post at its Los Angeles, California 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 District Director, 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 material.

           (d) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, San Francisco 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 United States Department of Justice, Immigration and Naturalization Service, Los Angeles, California, 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 terminate the 4/10 Alternative Work Schedule (AWS) option for bargaining unit employees in the Alien Criminal Apprehension Program (ACAP) without first completing bargaining with the American Federation of Government Employees, Local 505, AFL-CIO, the exclusive representative of our bargaining unit employees.

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

WE WILL restore the 4/10 AWS option for ACAP employees in the collective bargaining unit represented by the American Federation of Government Employees, Local 505, AFL-CIO.

WE WILL restore to ACAP employees in the collective bargaining unit any annual or sick leave that they took for time during which they would have been off of work if the 4/10 AWS option had not been terminated in April 2002.

      _______________________                                         (Activity)

Dated:_______ By:_____________________________

     (Signature) (Title)

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

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, Cal., 94103, and whose telephone number is: (415) 356- 5000.


File 1: Authority's Decision in 59 FLRA No. 56
File 2: ALJ's Decision


Footnote # 1 for 59 FLRA No. 56 - Authority's Decision

   We note that the functions and personnel of the Immigration and Naturalization Service have been transferred to the Department of Homeland Security. See, e.g., 6 U.S.C. § 251.


Footnote # 2 for 59 FLRA No. 56 - Authority's Decision

   Section 6131(c)(3)(D) provides, in pertinent part, that a flexible or compressed work schedule established by a collective bargaining agreement

may not be terminated until-
(i) the agreement covering such schedule is renegotiated or expires or