United States, Department of Justice Executive Office For Immigration Review, New York, New York (Respondent/Agency) and American Federation of Government Employees, Local 286 (Charging Party/Union)

[ v61 p460 ]

61 FLRA No. 89

UNITED STATES
DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE
FOR IMMIGRATION REVIEW
NEW YORK, NEW YORK
(Respondent/Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 286
(Charging Party/Union)

BN-CA-04-0291

_____

DECISION AND ORDER

January 31, 2006

_____

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. The General Counsel (GC) filed an opposition to the Respondent's exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by engaging in a course of bad faith bargaining in the negotiation of the parties' first collective bargaining agreement (CBA). The Judge found that the Respondent violated the Statute as alleged.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order and Notice for the reasons that follow.

II.      Background & Judge's Decision

      In late 2002, the parties' chief negotiators (the Respondent's Assistant Chief Immigration Judge (ACIJ) and the Union's National Representative) agreed to ground rules for the negotiation of their first CBA. [n1] 

      The parties held their first week of direct negotiations July 14 through July 18, 2003. [n2]  At the conclusion of the July negotiations, the parties agreed to meet again the week of October 6. The parties also agreed to exchange ideas and counterproposals by e-mail between bargaining sessions in an effort to narrow the areas of dispute and to make future sessions more productive.

      On September 9, the Union's National Representative requested to postpone the October 6 meetings and offered the alternative weeks of October 14 and December 1. See Judge's Decision at 4 (citing Jt. Ex. 10). Subsequently, the National Representative became available to meet the week of October 6, but by that time the Respondent had made other arrangements for that week and was also unavailable to meet on the alternative weeks proposed by the Union.

      The Respondent and the Union continued to exchange e-mails regarding establishing a new meeting date, as well as substantive contractual issues. On November 2, the Union's National Representative submitted new counterproposals to the Respondent and stated that the Union was available for bargaining the weeks of February 16 and 23. See id. (citing Jt. Ex. 24). In his December 1 reply, the ACIJ "made no mention of the Union's offer to meet in February[.]" Id. at 4-5. On December 10, the National Representative "remind[ed]" the ACIJ "of the need to set a date." Id. at 5. On January 7, the ACIJ "sent the Union some detailed comments on four articles and asked the Union to respond[.]" Id. However, "despite mentioning the difficulty in scheduling a bargaining session," the ACIJ "neither commented on the Union's offer to meet the week of February 23[,] nor offered any alternate dates [ v61 p461 ] on which the Agency would be available . . . ." Id. (citing Jt. Ex. 25) (footnote omitted).

      The parties continued e-mailing throughout February and March, with the Union "demand[ing] that the [Respondent] schedule a date for the next face-to-face bargaining session" and the Respondent "demand[ing] that the Union submit written comments on the outstanding substantive contractual issues . . . ." Id.

      On March 16, the National Representative e-mailed the ACIJ to inform him that the Union intended to file a ULP charge for the Respondent's refusal to bargain unless, among other things, the Respondent offered the Union dates on which it was available to bargain. See id. at 5-6. As relevant here, in his March 18 response, the ACIJ stated:

I think you have an obligation to respond substantively to what we have offered to date and to keep trying to narrow the issues before incurring the expense of getting together again . . . let's concentrate on doing that before setting a date for getting back together at the table.

Id. at 6 (quoting Jt. Ex. 28 at 1). On March 23, the National Representative "reiterated the Union's desire to set a date for face-to-face bargaining . . . ." Id. (citing Jt. Ex. 28 at 1). When the Respondent failed to respond by March 30, the Union filed the ULP charge that is the subject of this case.

      Following the filing of the charge, the parties continued to e-mail one another; the Union pursued the scheduling of face-to-face bargaining and the Respondent insisted that the Union submit further e-mail responses to the Respondent's January proposals before it would resume in-person bargaining. See id. at 6 n.4 (citing Jt. Exs. 29-32).

      The Judge noted that, where bad faith bargaining is alleged, "[i]n determining whether a party has fulfilled its bargaining responsibility," the Authority considers "the totality of the circumstances[.]" Judge's Decision at 8 (quoting United States Dep't of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 531 (1990) (Wright-Patterson)).

      The Judge determined that the issue before him was whether the "breakdown in the [parties'] negotiations was attributable to mutual problems and disagreements, or whether it was caused by one party's improper conduct." Judge's Decision at 9. Based on the evidence, the Judge found that the Respondent "acted unreasonably in three specific ways" and that these actions "demonstrate bad faith in the conduct of the Respondent's negotiations with the Union." Id. In this regard, the Judge first found that, "at no time after September 30 did [the Respondent] give the Union any specific dates on which it was available to meet for bargaining, despite numerous requests by the Union and numerous offers of dates on which the Union was available." Id. Second, the Judge found that the Respondent violated the express provision of the parties' ground rule that negotiations take place at the Respondent's facility. See id. Third, the Judge found that the Respondent violated § 7114(b)(3) of the Statute, requiring the parties "to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays[,]" by refusing to return to the bargaining table until e-mail negotiations progressed further. Id.

      With regard to his finding that the Respondent did not give the Union specific dates on which it was available to bargain after September 30, the Judge found that, while the Respondent exchanged e-mails with the Union from September 30 to March 18, the Respondent "totally ignored the Union's many requests to set a date for bargaining sessions." Id. at 10. Consistent with Army & Air Force Exch. Serv., McClellan Base Exch., McClellan Air Force Base, Cal., 35 FLRA 764, 769 (1990) (McClellan AFB), the Judge found that the Respondent's "refusal to even discuss the scheduling of meetings for more than five months, and its evasiveness on the subject over a longer period, constituted a failure to negotiate in good faith." Judge's Decision at 10.

      In addition, the Judge rejected the Respondent's assertion that the Union agreed to continue negotiating through e-mail, finding that "[a]t no time did the Union agree that written or electronic communications would be a substitute for, or a basis for delaying, face-to-face bargaining." Id. at 11. In this regard, the Judge found that "nowhere in the [parties'] ground rules is there a provision for negotiating by mail or in writing, after the parties' initial proposals had been exchanged." Id. The Judge further found that Section 2(b) of the ground rules provides that the parties "intended to continue scheduling additional bargaining sessions, regardless of whether they made any progress in narrowing issues during the intervals." Id. Based on the foregoing, the Judge concluded that "not only does the evidence contradict the Agency's argument that the ground rules had been amended, but it establishes that the Agency violated the ground rules by refusing to come to the bargaining table until the Union submitted additional written proposals." Id. Further, by unilaterally setting its own ground rules, the Judge found that the Respondent demonstrated a lack of good faith. See id. at 12. [ v61 p462 ]

      After considering the totality of the circumstances, the Judge found that the Respondent's "resistance to in-person negotiations became increasingly inflexible and unreasonable, to the point that by March it had lost its resolve to reach an agreement and had resorted instead to delaying the process." Id. In this regard, the Judge found that starting on November 2, when the Union made a series of concessions and counterproposals and told the Respondent it was available to meet the week of February 23, the Respondent "evaded the subject of meeting with the Union and devoted itself solely to bargaining by [e-]mail." Id.

      The Judge noted that on January 7 the Respondent "demonstrate[d] an interest . . . in making progress toward an agreement" by submitting counterproposals. Id. at 12-13. However, the Judge found that "it later became clear that [the Respondent] would not agree to schedule another bargaining session until the Union responded substantively on the issues addressed in th[e] January 7 letter." Id. at 13. In this regard, the Judge cited the ACIJ's March 18 e-mail to the Union, in which he stated that the Respondent "believed the Union had an obligation to `respond substantively' to the [Respondent]'s contract proposals and `to keep trying to narrow the issues before incurring the expense of getting together again.'" Id. at 13 (quoting Jt. Ex. 28 at 1). The Judge further noted additional support in the ACIJ's July 1 e-mail to the Union in which the ACIJ repeated his earlier position that "`[i]t really wouldn't be reasonable to meet again until the issues to be discussed are significantly narrowed.'" Id. (quoting Jt. Ex. 32).

      The Judge found that the Respondent "decided that `the expense of getting together again' was not `reasonable' until the parties had narrowed their disputes further[.]" Id. (quoting Jt. Ex. 28). However, the Judge found that the facts suggested that "bargaining by email had outlived its usefulness and was obstructing the process rather than enhancing it." Id. (citing Wright- Patterson, 36 FLRA at 533). The Judge further noted that the parties were not making any progress through e-mail and that by February, "the parties were simply talking over each other's heads, and their exchanges often took weeks to occur." Id. at 14.

      Based on the foregoing, the Judge concluded that "[i]t was the [Respondent] that was being unreasonable in March, when it insisted that negotiations be conducted only by e-mail." Id. The Judge found that, "[a]fter a seven-month lapse, the time for face-to-face bargaining had come, and the Agency's refusal to do so was not simply inflexible, but legally indefensible." Id. (citing Dep't of the Air Force, Griffiss Air Force Base, Rome, N.Y., 25 FLRA 579, 596 (1987); Envtl. Prot. Agency, 16 FLRA 602, 613 (1984)). In this connection, the Judge found that the Respondent's refusal to meet with the Union in March, or even to schedule a meeting date, constituted a violation of its duty to bargain in good faith.

      As a remedy, the Judge ordered that the Respondent "[r]espond promptly to the Union['s] requests for dates on which the [Respondent] is available to meet and negotiate, and thereafter meet with the Union at reasonable times and intervals with a sincere resolve to reach a collective bargaining agreement." Id. at 15-16.

III.     Positions of the Parties

A.      Respondent's Exceptions

      The Respondent asserts that the Judge erred in applying the totality of the circumstances test set forth in Wright-Patterson because he focused "exclusively on the parties' difficulties rescheduling a second week of in-person negotiations" and "ignore[ed] the parties' other efforts to move the collective bargaining process forward during the relevant time frame." Exceptions at 6. The Respondent further alleges that the Judge's findings -- that the Respondent: (1) failed to give the Union specific dates on which the Respondent's representatives could bargain after September 30, 2003; (2) violated the parties' ground rules agreement that negotiations take place at the Respondent's facility; and (3) refused to return to the bargaining table until e-mail negotiations progressed further -- are not supported by the evidence and do not support a finding of bad faith under the totality of the circumstances test. See id. at  8.

1.     The Judge erred in finding that the Respondent failed to give the Union specific dates for a second in-person bargaining session.

      The Respondent asserts that after the Union cancelled the October bargaining session, the parties "endeavored to reschedule through several email exchanges." Id. at 9. In this regard, the Respondent asserts that the Judge's finding that the Respondent "failed to `give the Union any specific dates on which it was available' after September 30, 2003 and `totally ignored the Union's many requests to set a date for bargaining sessions' are incorrect." Id. (quoting Judge's Decision at 9-10). In support, the Respondent asserts that in a September 30 e-mail, the ACIJ "offered up almost two months during which the Agency could meet for in-person negotiations (January and February of 2004, except for the week of February 16, 2004)." Id. (citing Jt. Ex. 19; Jt. Ex. 22; Transcript at 118) (original emphasis). [ v61 p463 ]

      The Respondent asserts that when the Union responded that it was available to meet the weeks of February 16 and 23, the Union "ignored" and "overlook[ed]" the Respondent's unavailability the week of February 16. Id. at 10. The Respondent cites the ACIJ's testimony that he would have been reluctant to meet the week of the 23rd because he was going to be in contract negotiations the week of the 16th and that "somewhere along the line we must have made it clear we weren't going on the 23rd because that issue was dropped." Id. (quoting Transcript at 185). With regard to this testimony, the Respondent asserts that the Judge "failed to give credit to this unrebutted testimony nor did he make any credibility findings in this regard." Exceptions at 10.

      The Respondent further asserts that the Union "never moved to lock in a week during January or February on which the Union was also available." Id. According to the Respondent, the parties' failure to successfully reschedule "shows no bad faith on the part of the [Respondent] in attempting to do so." Id.

2.      The Respondent did not refuse to return to the bargaining table for a second in-person session.

      The Respondent explains that at the end of their first bargaining session, the parties agreed to exchange proposals by e-mail to make subsequent sessions more productive. In this regard, the Respondent asserts that it never refused to return to the table to bargain and that the Judge "mistook [its] efforts to maximize the time between in-person negotiation sessions by using email to narrow the issues for a refusal to return to the bargaining table." Id. at 11.

      The Respondent further claims that the Judge "selectively" cited to portions of [the ACIJ's] e-mails of March 18 and July 1. Id. at 12. In this regard, the Respondent contends that the March 18 e-mail was [the ACIJ's] reaction to the Union's "sudden and unexpected threat to file a ULP charge." Id. at 12. The Respondent further claims that in the July 1 e-mail, [the ACIJ] "asked for `specific, realistic dates' on which the Union team could meet instead of the Union's unrealistic generic offer to meet `anytime.'" Id. at 13 (quoting Jt. Ex. 32).

3.      The Respondent did not act in bad faith because the parties were equally culpable in failing to reschedule and the delay was not excessive.

      The Respondent asserts that the Judge's finding that it acted in bad faith is not supported by the totality of the circumstances because the Judge "disregarded all of the Agency's efforts between in-person bargaining sessions to keep the negotiations moving forward." Id. In support, the Respondent asserts that the Union "completely ignored" the "extensive side-by-side analysis designed to highlight the parties' agreements and differences" that the Respondent prepared. Id. The Respondent also contends that the parties' "difficulty in narrowing a date to return to the bargaining table was not excessive" and "[i]n reality, the time period was just three months [from] January 2004 until the Union filed its ULP charge in March 2004." Id. (footnote omitted).

      The Respondent further notes that during the seven months between the parties' first face-to-face bargaining session and the filing of the ULP charge, the parties were in "continuous contact by email attempting to reschedule the second in-person session and exchanging comments and other documents intended to further the bargaining process." Id. at 14. Based on the foregoing, the Respondent asserts that under the totality of the circumstances test, the evidence does not support the Judge's finding that the Respondent acted in bad faith.

4.      The Judge erred in considering the post-charge period.

      The Respondent asserts that the Judge erred in considering the post-charge period when determining whether the Respondent acted in bad faith. Insofar as the Judge found that "the facts reveal a twelve-month history of evasiveness by the Respondent regarding its availability to meet with the Union," the Respondent asserts that seven of those twelve months occurred after the Union filed the ULP charge. Id. at 15 (quoting Judge's Decision at 10). The Respondent concedes that the Authority has never held that it is improper to consider post-charge conduct in determining whether a party acted in bad faith by refusing to schedule in-person negotiations. However, citing NTEU, 53 FLRA 1541, 1555-56 (1998), the Respondent asserts that the Authority has found that consideration of post-charge conduct is irrelevant in determining whether a ULP had been committed in a conflict of interest case.

      In addition, the Respondent argues that consideration of post-charge conduct is unfair to the party accused of violating the Statute because of the "chilling [ v61 p464 ] effect" that the filing of a charge has on the parties' bargaining relationship. Id. at 16. Even if post - charge conduct were relevant to the totality of the circumstances test, the Respondent argues that the Judge erred in failing to consider the Union's post-charge conduct, which includes the National Representative having no further contact with the ACIJ after filing the charge, and the Local Union President's failure to contact the Respondent about contract negotiations until 3 months after the charge was filed.

B.      GC's Opposition

      The GC asserts that the Judge properly considered and applied the totality of the circumstances test and that his conclusion that the Respondent negotiated in bad faith is well supported by the record.

1.      The Judge's finding that the Respondent failed to give the Union specific dates of availability for negotiations at any time after September 30, 2003 is supported by substantial record evidence.

      The GC asserts that the Judge's finding that the Respondent failed to give the Union specific dates for bargaining after September 30, 2003 is supported by substantial record evidence. In support, the GC asserts that the ACIJ's March 18 and July 1 e-mails (Jt. Exs. 28 and 32, respectively) "serve[] to corroborate the [Judge's] finding regarding the Respondent's position that it was refusing to meet until issues were `significantly narrowed.'" Opposition at 9 (quoting Judge's Decision at 6 n.4).

      In this regard, the GC notes that the Respondent was unavailable to meet October 6 (after the National Representative rearranged his calendar) and the Respondent also could not meet the following week. Insofar as the Respondent argues that it was available anytime in January and February, the GC asserts that when the Union agreed to one of the dates "supposedly" offered by the Respondent, the Respondent did not respond to the Union's repeated follow-up e-mails. Id. at 8.

2.      The Judge's conclusion that the Respondent refused to return to the bargaining table is supported by substantial record evidence.

      The GC disputes the Respondent's assertion that its e-mails to the Union between January and March were attempts to narrow the issues and not a refusal to return to the bargaining table. In this regard, the GC asserts that, contrary to the Respondent's assertion, the e-mails "show the Respondent's unilateral position that e-mail be used before it would return to the table, not just that the Respondent was graciously trying to move the negotiation process along between sessions." Id. at 10 (citing Jt. Ex. 28) (original emphasis).

      Noting that the Respondent "made some efforts early on to show an intent to reach agreement[,]" the GC asserts, in agreement with the Judge, that the Respondent's subsequent conduct showed "the Respondent's increasing reluctance to meet to negotiate until e-mail negotiations progressed[.]" Id. at 11. As such, the GC asserts that the Judge's finding that "the Respondent violated the ground rules and refused to return to the bargaining table until e-mail had significantly narrowed the issues was well-supported by the record and constituted an unfair labor practice." Id. at 12 (citing Judge's Decision at 14; 375th Combat Support Group, Scott Air Force Base, Ill., 46 FLRA 640, 665 (1992); Wright-Patterson, 36 FLRA at 532-33).

3.      The Judge took into account both parties' conduct in concluding that the Respondent negotiated in bad faith.

      The GC asserts that the parties' "breakdown in communication" is not evidence of bad faith conduct by the Union, "which tried its best to mitigate the problem by scheduling further negotiations." Id. at 13.

      According to the GC, the Judge's finding that the Respondent failed to provide any dates of availability after September 30, 2003 is supported by the record. The GC asserts that the Respondent's claim that there was continuous contact between the parties showing attempts to reschedule was in fact "a series of e-mails from the Union seeking dates and the Respondent refusing to give any." Id. The GC further alleges that the Union's initial cancellation of the October 6 bargaining session was not the issue, but rather, the issue was the Respondent's conduct toward rescheduling after September 30. The GC also asserts that the one instance of rescheduling on the part of the Union does not create bad faith conduct on the part of the Union or excuse the bad faith conduct on the part of the Respondent. See id. at 14.

4.      The Judge did not rely on post-charge conduct in finding that the Respondent negotiated in bad faith.

      The GC asserts that the Judge did not rely on the post-charge July 1 e-mail (Jt Ex. 32) in concluding that the Respondent was refusing to meet with the Union to negotiate and was insisting on e-mail negotiations before meeting. According to the GC, the Judge "simply used the comments [in the e-mail] to corroborate his [ v61 p465 ] findings regarding earlier e-mails, which is not an inappropriate consideration of post-charge conduct." Id. at 17 (citing NTEU, 53 FLRA at 1555). In this regard, the GC contends that, "[w]hile it may be inappropriate to find the Respondent to have violated the Statute by conduct not incorporated in the Complaint at [the] hearing, this same conduct, if relevant, can be used to shed light on events that are covered by the Complaint." Id. at 15 (citing NTEU, 53 FLRA at 1555).

      The GC also asserts that the Respondent's reliance on NTEU is "misplaced" because, in that case, the Authority held that certain post-charge conduct was irrelevant - "as opposed to inappropriately considered" - to determining if a conflict of interest existed. Id. at 15. In the present case, the GC asserts that the Judge "used the e-mail to confirm the Respondent's previously determined stance of refusing to meet with the Union until e-mail negotiations had been used to narrow issues." Id. at 16.

      The GC also rejects the Respondent's assertion that considering post-charge conduct would have a "chilling effect" on the parties' bargaining relationship. Id. at 16 (quoting Exceptions at 16). In this regard, the GC asserts that the parties' post-charge conduct was not relevant because "[t]he parties' bargaining relationship had already deteriorated to the point that, as noted by the [Judge], the parties were just talking past each other." Id. at 16 (citing Judge's Decision at 5).

IV.     Analysis and Conclusions

      Section 7103(a)(12) of the Statute defines collective bargaining as the "performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees[.]" Further, § 7114(b)(1) and (3) state that "[t]he duty of an agency and an exclusive representative to negotiate in good faith . . . shall include the obligation . . . to approach the negotiations with a sincere resolve to reach a collective bargaining agreement . . . [and] . . . to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays[.]"

      As stated by the Judge, in determining whether a party has fulfilled its bargaining responsibility in a particular case, the Authority considers the totality of the circumstances. See Wright-Patterson, 36 FLRA at 531. For the reasons discussed below, we find that substantial evidence in the record supports the Judge's findings that the Respondent: (1) failed to give the Union specific dates on which it was available to bargain after September 30; (2) violated the parties' ground rule that negotiations would take place at the Respondent's facility; and (3) refused to return to the bargaining table until e-mail negotiations progressed further. Further, considering the totality of the circumstances - including the above findings - we find that the record as a whole supports the conclusion that the Judge did not err in finding that the Respondent violated its statutory duty to bargain in good faith.

A.     The Judge did not err in finding that the Respondent failed to give specific dates for a second in-person bargaining session.

      The evidence reveals that the parties had agreed to meet the week of October 6-10 for the second round of face-to-face bargaining. See Jt. Ex. 7. The Union cancelled this session on September 9, and when it did so, it proposed two alternative dates: October 14-17 and December 1-5. See Jt. Ex. 10. The Respondent was unavailable to meet on either of those dates. See id. Three days after canceling, the Union informed the Respondent that it was available to meet October 6-10, the dates originally scheduled; however, the Respondent had already made other commitments by that time. See Jt. Ex. 11. On September 16, the Union proposed meeting the following week; however, the Respondent was not available. See Jt. Ex. 12. The Respondent also rejected the October 14-17 and December 1-5 dates proposed by the Union as possible meeting dates. See Jt. Ex. 10. The Respondent further stated that it was unavailable to meet the week of February 16. See Jt. Ex. 22. On November 2, the Union asked the Respondent whether it could meet either the week of February 16 or February 23 for face-to-face negotiations. See Jt. Ex. 24.

      The evidence reveals that, despite the Union's repeated follow-up e-mails, the Respondent never responded to the Union's request for dates on which the Respondent was available for face-to-face bargaining. See Jt. Exs. 24-29. While the evidence reveals that the Union proposed at least four specific dates (October 14, December 1, February 16, and February 23), all of which the Respondent rejected, the Respondent never proposed any specific dates that it was available to meet. Accordingly, substantial record evidence supports the Judge's finding that, at no time after September 30, did the Respondent propose any specific dates on which it was available to meet for a second face-to-face bargaining session. [ v61 p466 ]

B.     The Judge did not err in finding that the Respondent refused to return to the bargaining table until e-mail negotiations progressed further.

      There is no dispute that the parties agreed to ground rules for their negotiations, including Article 2(d), which provides that negotiations will be held at the Respondent's facility. There is also no dispute that the parties agreed to exchange ideas and counterproposals by e-mail between bargaining sessions in an effort to narrow the areas of dispute to make future sessions more productive. Substantial record evidence supports the Judge's finding that the Respondent violated the parties' ground rules by insisting that the parties negotiate by e-mail rather than in-person and that the Respondent refused to return to the table until bargaining by e-mail progressed further. In this regard, following the National Representative's e-mail giving the ACIJ notice that the Union intended to file ULP charges for the Respondent's failure to schedule a second bargaining session, the ACIJ replied on March 18:

I think you have an obligation to respond substantively to what we have offered to date and to keep trying to narrow the issues before incurring the expense of getting together again. To move these negotiations forward, please review the summary of the status of the negotiations that I sent to you and our responses to the proposals that you sent, and let us know your thoughts on those. We've accepted your invitation to address other articles to save some time at the table and your offer to send us additional proposals as you prepare them - let's concentrate on doing that before setting a date for getting back together at the table. That's the only reasonable thing to do at this point.

Jt. Ex. 28 at 1.

      The parties agreed to continue to try to narrow the issue by e-mail before the second round of face-to-face negotiations; however, as found by the Judge, there is no evidence in the record that the parties agreed to alter or amend the ground rules to provide for bargaining by e-mail in lieu of face-to-face negotiations. The above e-mail makes clear that the Respondent would not meet with the Union again until the parties succeeded at further narrowing the issues through e-mail. As such, the Judge's finding that the Respondent violated the parties' ground rules by refusing to schedule further face-to-face negotiations until bargaining by e-mail progressed further is supported by substantial record evidence. [n3] 

C.      The Judge did not err in finding that the Respondent acted in bad faith.

      The Respondent asserts that the Judge's finding of bad faith bargaining is not supported by the totality of the circumstances because he failed to consider "the Agency's efforts between in-person bargaining sessions to keep the negotiations moving forward." Exceptions at 13.

      Contrary to the Respondent's assertion, the record evidence establishes that the Judge did, in fact, consider the Respondent's efforts to bargain with the Union. Specifically, the Judge noted that the Respondent "was not ignoring the Union or negotiations totally" and that, on January 7, two months after receiving the Union's November 2 counterproposals, "submitted a set of counterproposals of its own." Judge's Decision at 12. The Judge further found that the Respondent's proposals "demonstrate[d] an interest at that time in making progress toward an agreement." Id. at 12-13. However, the Judge also found that the Respondent's subsequent actions showed that the Respondent "gave up on the idea of in-person bargaining in favor of negotiating entirely by mail." Id. at 13.

      The Respondent also asserts that the parties' "difficulty in narrowing a date to return to the bargaining table was not excessive" and that the parties were in "continuous contact by email attempting to reschedule the second in-person session and exchanging comments and other documents intended to further the bargaining process." Exceptions at 13, 14. To the contrary, as set forth above, the Judge found, and substantial record evidence supports, that the Respondent failed to provide any specific dates of availability after September 30 - 5 months before the Union filed the ULP charge.

      Accordingly, as the Judge did consider the Respondent's efforts to bargain with the Union and, as the Judge's finding that the Respondent failed to provide any specific dates of availability for 5 months prior to the filing of the charge is supported by substantial evidence in the record, we find that the Respondent's exception does not establish that the Judge erred in concluding that the Respondent violated its statutory duty to bargain in good faith. See, e.g., Wright-Patterson, 36 FLRA at 534.  [n4]  [ v61 p467 ]

D.     The Judge's consideration of post-charge conduct does not establish a basis for overturning the Judge's decision.

      The Respondent excepts to the Judge's reliance on the Respondent's post-charge conduct, specifically, his finding that "the facts reveal a twelve-month history of evasiveness by the Respondent regarding its availability to meet with the Union, highlighted by five months of totally ignoring the Union's scheduling requests." Judge's Decision at 10.

      The Authority has found that post-charge conduct is irrelevant in determining whether or not the Statute has been violated. See, e.g., NTEU, 53 FLRA at 1555 (post-charge conduct was "irrelevant" in determining whether an employee's simultaneous holding of two positions was a conflict of interest); Bureau of Engraving & Printing, Wash., D.C., 44 FLRA 575, 581-82 (1992) ("the exclusion of [post-charge] evidence" was not "relevant or material" to the Authority's determination of whether the respondent violated the Statute when it unilaterally changed its parking program without giving the union notice).

      The Union filed the ULP charge on March 30, 2004. The only findings the Judge made with regard to post-charge activity were that: (1) on June 23, the Union requested dates on which the Respondent was available to meet, see Jt. Ex. 29; and (2) on July 1 the ACIJ responded that he and his negotiators would "go over [their] calendars again to find possible dates to meet," Jt. Ex. 32, but the ACIJ "never actually presented any such dates to the Union." Judge's Decision at 10. While the Judge may have considered these events, it is clear that his finding of a statutory violation was based on the Respondent's activities prior to the filing of the charge on March 30, and the Judge used the Respondent's activities after that date only to construe the Respondent's pre-charge activities. Further, the Judge did not find that the post-charge activity was itself violative of the Statute. In addition, it is clear from the record that the Respondent's pre-charge activity is sufficient to sustain the complaint.

      Based on the foregoing, the Respondent's exception does not provide a basis for overturning the Judge's decision.

V.     Order

      Pursuant to § 2423.41(c) of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the United States Department of Justice, Executive Office for Immigration Review, New York, New York (Agency), shall:

      1.     Cease and desist from:

           (a)     Bargaining in bad faith during collective bargaining negotiations with the American Federation of Government Employees, Local 286 (Union), the exclusive representative of certain of its employees, by refusing or failing to schedule meetings to continue negotiations with the Union.

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

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

           (a)     Respond promptly to Union requests for dates on which the Agency is available to meet and negotiate, and thereafter meet with the Union at reasonable times and intervals with a sincere resolve to reach a collective bargaining agreement.

           (b)     Post a copy 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 Chief Immigration Judge, and they 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.

           (c)     Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Boston Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. [ v61 p468 ]


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, Executive Office for Immigration Review, New York, New York, 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 bargain in bad faith during collective bargaining negotiations with the American Federation of Government Employees, Local 286 (Union), by refusing or failing to schedule meetings to continue negotiations with the Union.

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

WE WILL respond promptly to Union requests for dates on which we are available to meet and negotiate, and we will thereafter meet with the Union at reasonable times and intervals with a sincere resolve to reach a collective bargaining agreement.

                               ____________________________________                                                                            (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, Boston Regional Office, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Suite 472, Boston, MA 02222, and whose telephone number is: (617) 565-5100.


File 1: Authority's Decision in 61 FLRA No. 89
File 2: ALJ's Decision


Footnote # 1 for 61 FLRA No. 89 - Authority's Decision

   As relevant here, the ground rules provide as follows:

2b) The parties further agree that negotiations will be held Monday through Friday from 9:00 a.m. to 4:00 p.m. in one-week increments. Upon the conclusion of each one-week session of negotiations the parties shall mutually agree in writing to the date of the next negotiation session.
. . . .
2d) The parties will agree to a mutually acceptable location for contract negotiations and caucus sessions prior to the commencement of negotiations. Negotiations will be held at [the Respondent's facility].
. . . .
9. Changes in ground rules will only be made by mutual consent of the Chief Negotiators or their designees.

Jt. Ex. 2 at 1, 4.


Footnote # 2 for 61 FLRA No. 89 - Authority's Decision

   Unless otherwise noted, all dates in the months of July through December refer to 2003 and all dates in the months of January through March refer to 2004.


Footnote # 3 for 61 FLRA No. 89 - Authority's Deci