United States, Department of Labor, Washington, D.C. (Respondent) and American Federation of Government Employees, Local 12 (Charging Party)

[ v61 p603 ]

61 FLRA No. 116

UNITED STATES
DEPARTMENT OF LABOR
WASHINGTON, D.C.
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 12
(Charging Party)

WA-CA-04-0061

_____

DECISION AND ORDER

May 25, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member [n1] 

I.      Statement of the Case

      This case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (the Judge) filed by the Respondent (Agency). The General Counsel (GC) and the Charging Party (Union) filed oppositions to the Agency's exceptions.

      The complaint alleges that the Agency violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with a final and binding arbitration award. The Judge found that the Agency violated the Statute as alleged, and he granted a status quo ante remedy and directed that the Agency post a notice signed by the Secretary of Labor (the Secretary).

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions that the Respondent violated § 7116(a)(1) and (8) of the Statute. However, we set aside the Judge's determination that a status quo ante remedy is warranted. We adopt the remainder of the Judge's recommended Order.

II.      Background and Judge's Decision

      The Agency unilaterally implemented an automated timekeeping system that required employees on a flexible work schedule to fill out their time sheets through computer software rather than manually. A grievance was filed and was submitted to arbitration, where the arbitrator found that the Agency's actions violated Article 4, Section 3 of the parties' collective bargaining agreement. [n2]  As a remedy, the arbitrator directed the Agency to restore the previously-used manual timekeeping system, but stated that "[n]othing shall preclude the Parties from mutually agreeing to . . . resolve the situation on terms different than this Award." Jt. Ex. 1 at 18 (Arbitration Award). The Agency filed exceptions to the award with the Authority, which were subsequently denied. See DOL, Wash., D.C., 59 FLRA 131 (2003) (Chairman Cabaniss concurring).

      While the Agency's exceptions were pending, the Agency notified the Union that it intended to renegotiate the parties' agreement, which had become effective in 1992 for a 3-year period and had rolled over on an annual basis thereafter. When the Union refused to negotiate, the Agency filed a charge, and the GC issued a complaint, in Case Number WA-CO-02-0614 (CO-0614), alleging that the Union's refusal violated § 7116(b)(5) of the Statute. The judge in that case found that the Union violated the Statute as alleged and, as relevant here, directed the Union, upon request, to negotiate in good faith over a new collective bargaining agreement. When the parties did not file any timely exceptions to the judge's decision, the Authority issued an Order directing the Union to comply with the judge's order. See Resp't Ex. 8 (February 11, 2005 Order).

      The Agency did not restore the manual timekeeping system, as directed by the arbitrator. Accordingly, the Union filed the charge, and the GC issued the complaint, in the instant case, alleging that the Agency violated § 7116(a)(1) and (8) of the Statute by failing to comply with the final and binding arbitration award.

      During the pendency of the instant proceeding -- and as a result of the Order in CO-0614 -- the parties negotiated to impasse over a new agreement. The Fe-deral Service Impasses Panel (Panel) asserted jurisdiction and stated that it would resolve the impasse based [ v61 p604 ] on the parties' final offers. See Resp't Ex. 2 at 1-2. Both parties' proposed articles stated, as relevant here: "Employees will report and record all hours in the Department's electronic time and attendance system." Resp't Ex. 4 at 3 (Union's final offer); Resp't Ex. 3 at 3 (Agency's final offer). The Panel directed the parties to adopt the Agency's final offer on automated timekeeping.  [n3] See Resp't Ex. 6 at 3-4.

      Subsequently, the Judge issued the decision now before us, finding that the Agency had not restored the manual timekeeping system, as required by the arbitration award and, consequently, violated the Statute as alleged. The Judge denied the Agency's request to take official notice of the complaint in CO-0614, finding that case "unrelated to any of the issues herein." Judge's Decision at 8. The Judge also stated that the Panel's decision was "not material" and that "[e]ssentially, the [Agency's] defenses [were] nothing more than a collateral attack on" the arbitrator's award. Id. at 9.

      Turning to the issue of the appropriate remedy, the Judge "assumed that there are no legal or public policy objections" to a status quo ante remedy. Id. at 10. The Judge found that "public policy as expressed by Congress in the Statute requires parties to comply with final and binding arbitrator's awards[,]" and that the Agency could not be "permitted to profit from its own actions that were inconsistent with the Award." Id. The Judge concluded that a status quo ante remedy was reasonably necessary and would be effective in recreating the conditions with which the unfair labor practice (ULP) interfered, and would effectuate the purposes and policies of the Statute, including the deterrence of future violative conduct. Thus, the Judge directed, as relevant here, that the Agency restore the status quo ante manual timekeeping system for unit employees on flextime. The Judge also directed the Agency to post a notice, signed by the Secretary.

III.      Positions of the Parties

A.     Agency's Exceptions

      The Agency does not dispute that it violated the Statute; it disputes only the Judge's direction that it return to a manual timekeeping system. According to the Agency, this remedy is not appropriate because even absent that ULP in this case, the parties would have agreed to implement the automated timekeeping system. The Agency argues that Authority precedent recognizes that "intervening negotiations between the parties to a ULP proceeding can make status quo ante relief inappropriate." Exceptions at 8 (citing 56th Combat Support Group (TAC), MacDill Air Force Base, Fla., 44 FLRA 1098 (1992) (MacDill AFB); Dep't of the Treasury, United States Customs Serv. & United States Customs Serv., Region IX, Chi., Ill., 17 FLRA 221 (1985) (Customs), remanded sub nom., NTEU v. FLRA, 802 F.2d 843 (6th Cir. 1986); and United States GPO, 13 FLRA 203 (1983) (GPO). The Agency also argues that the arbitrator's award expressly permitted the parties to resolve their dispute on terms different from those in the award, including implementing an automated timekeeping system.

      The Agency also challenges the Judge's direction that the notice be signed by the Secretary. The Agency asserts that the only Agency officials identified in the complaint and the joint stipulation of facts are the Deputy Director of Human Resources, the Director of Employee and Labor-Management Relations, and the Acting Director of Employee and Labor-Management Relations. According to the Agency, there is no evidence that any higher-ranked officials were responsible for the violation and, thus, no basis to require the Secretary to sign the notice.

B.      GC's Opposition

      The GC contends that the Judge properly directed the Agency to comply with the arbitration award. According to the GC, the Authority decisions cited by the Agency are distinguishable because: (1) in those cases, the unions chose to negotiate after the agencies implemented the disputed changes while here, the Union insisted on compliance with the arbitrator's award; and (2) the bargaining in this case "involves issues more numerous, and dynamics more complex" than the bargaining in MacDill AFB. GC Opp'n at 3. In addition, the GC argues that the Union "should not have to bargain away" the arbitrator's award and that the Agency is improperly attempting to collaterally attack the award. Id. at 3. Moreover, the GC claims that denying [ v61 p605 ] a status quo ante remedy "will create a disincentive" for the Agency to comply with future awards. Id. at 4.

      The GC also contends that the Judge properly directed that the notice be signed by the Secretary. In this connection, the GC asserts that the Authority has not previously required that the signatory of a notice be an individual specifically identified in the pleadings or required evidence that the highest official of the responsible activity was personally involved in the violation. Additionally, the GC asserts that the Authority required the Secretary to sign the notice in a previous case involving these parties. The GC states that, "[c]onsidering that the Secretary is the leading signatory on the collective bargaining agreement . . ., it's particularly appropriate that the Secretary sign a notice affirming the [Agency's] acknowledgment of its obligation and its intent to comply with a final and binding arbitration award." Id. at 6.

C.     Union's Opposition

      The Union asserts that a status quo ante remedy is appropriate here because it reflects the public policy favoring compliance with final and binding arbitration awards. The Union disputes the Agency's claim that the parties would have implemented the automated timekeeping system even absent the ULP, claiming that it is impossible to determine what would have occurred during negotiations if the Agency had complied with the award. The Union contends that, if the Authority finds a status quo ante remedy improper here, then the Authority should remand the issue of an appropriate nontraditional remedy for further proceedings.

      The Union argues that the Secretary is the appropriate official to sign the notice because the issue that gave rise to the grievance involved the violation of the parties' previous collective bargaining agreement, to which the Secretary was a signatory. In this connection, the Union asserts that the Agency's determination not to comply with the award affected the Agency and the Union "as a whole." Union's Opp'n. at 11.

IV.      Analysis and Conclusions

A.      A status quo ante remedy is not appropriate.

      The purpose of a status quo ante remedy is to place parties in the positions they would have occupied had there been no unlawful conduct. See United States Dep't of HUD, 58 FLRA 33, 35 (2002) (Chairman Cabaniss dissenting and Member Pope concurring on other grounds); Dep't of Veterans Affairs Med. Ctr., Asheville, N.C., 51 FLRA 1572, 1580 (1996) (Member Armendariz writing separately on other grounds). Consistent with this principle, the Authority has found a status quo ante remedy inappropriate where, during the pendency of a ULP charge: (1) the parties negotiated to impasse over the change at issue; (2) the union filed a request for assistance with the Panel; (3) during the Panel proceedings, the union did not request a return to the status quo ante; and (4) the Panel issued a final decision resolving the impasse. See MacDill AFB, 44 FLRA at 1103-04. Cf. GPO, 13 FLRA at 206 (status quo ante remedy not warranted where parties subsequently bargained and reached agreement).

      Here, during the pendency of the ULP charge: (1) the parties negotiated (as ordered by the judge in CO-0614) and reached impasse over a new timekeeping article; (2) the matter was submitted to the Panel; (3) during the Panel proceedings, the Union did not request a return to the status quo ante, but proposed that employees utilize the Agency's automated timekeeping system; and (4) the Panel issued a final decision resolving the impasse. Thus, intervening events -- not the Agency's failure to comply with the arbitration award -- resulted in the parties' collective bargaining agreement, which abolishes the manual timekeeping system and implements the automated system. The GC claims that the Authority's decisions in MacDill AFB and GPO are distinguishable because: (1) the Union here always insisted on compliance with the award; and (2) the bargaining in this case is more complex than the bargaining involved in MacDill AFB. See GC Opp'n at 3. However, the GC does not explain the relevance of these distinctions. We note again that when the parties were before the Panel, the Union proposed that employees would use the Agency's automated timekeeping system, not a manual system. In these circumstances, the GC has not demonstrated that directing the parties to reinstate the manual system would place the parties in the positions they would have occupied absent the Agency's improper failure to implement the award.

      The GC argues that the Union "should not have to bargain away" the arbitration award, and that the Agency is improperly attempting to collaterally attack the award. Id. The GC's first argument lacks merit because the Union was required to bargain over a new agreement as a result of its statutory bargaining obligations (as found by the judge in CO-0614), not as a result of the Agency's failure to comply with the arbitration award. In addition, the GC's second argument is unfounded because the Agency is challenging only the appropriateness of the Judge's status quo ante remedy at this time; the Agency is not claiming that the arbitrator erred by directing a return to the status quo when the [ v61 p606 ] award was issued or otherwise collaterally attacking the merits of the award.

      As for the GC's argument that denying a status quo ante remedy will create a disincentive for the Agency to honor future awards, the Authority rejected a similar argument in MacDill AFB. Specifically, the Authority stated that it was appropriate to consider Panel proceedings occurring after the ULP at issue "for the limited purpose of determining the appropriate remedy in this case, not for determining whether the [agency] committed the [ULP] alleged[,]" and that "the Panel's decision [did] not provide a defense to the [agency's] violation of the Statute." 44 FLRA at 1104-05. Similarly, here, our consideration of the events occurring after the failure to comply with the arbitrator's award is for the limited purpose of determining the appropriate remedy. Our determination not to grant a status quo ante remedy does not change the fact that the Agency violated the Statute and will be required to post a notice to that effect.

      Further, the Union has not demonstrated that a status quo ante remedy is necessary here in order to affirm the statutory policy requiring compliance with arbitration awards. In this regard, the arbitration award expressly permitted the parties to "mutually agree[] to . . . resolve the situation on terms different than th[e] [a]ward[,]" Jt. Ex. 1 at 18 (Arbitration Award), which they have now done. See Resp't Ex. 7 (Collective Bargaining Agreement). Thus, imposing a status quo ante remedy at this time is unnecessary to ensure compliance with the arbitration award.

      For the foregoing reasons, we find that a status quo ante remedy is not appropriate in the circumstances of this case.

      We note the Union's argument that, if a status quo ante remedy is found inappropriate, then this matter should be remanded for a determination as to an alternative nontraditional remedy. However, the Union does not suggest what alternative remedy would be appropriate or otherwise indicate what it would request on remand. Further, the Authority previously has found that a cease-and-desist order and the posting were sufficient remedies in similar circumstances. See MacDill AFB, 44 FLRA at 1104. Accordingly, we reject the Union's alternative request for a remand.

B.      The highest official of the Employee and Labor Relations Department should sign the notice.

      The Authority typically directs that a posting be signed by the highest official of the activity responsible for the violation because, when the highest official signs a notice, a respondent indicates that it acknowledges and intends to comply with its statutory obligations. See United States Dep't of Veterans Affairs, 56 FLRA 696, 699 (2000). The complaint in this case alleged that the Director of Employee and Labor-Management Relations refused to implement the award mandating a return to the previous manual timekeeping system. Moreover, nothing in the case implicates any Agency officials outside the Employee and Labor-Management Relations Office. Accordingly, we modify the Judge's proposed order to reflect that the highest official of that office should sign the notice.

V.      Order

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Statute, it is hereby ordered that the United States Department of Labor, Washington, D.C., shall:

      1.     Cease and desist from:

           (a)      Failing to comply with final and binding arbitration awards.

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

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

           (a)      Post at its United States Department of Labor, Washington, D.C. facilities, where bargaining unit employees represented by the American Federation of Government Employees, Local 12 are located, 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 highest official of the Department's Office of Employee and Labor-Management Relations, 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.

           (b)      Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Boston Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. [ v61 p607 ]


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 Labor, Washington, D.C., violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE RECOGNIZE that the Federal Service Labor-Management Relations Statute requires an agency to take the actions required by an arbitrator's final award.

WE WILL NOT fail to comply with final and binding arbitration awards.

WE WILL NOT in any like or related manner fail or refuse to comply with § 7122 of the Federal Service Labor-Management Relations Statute.

WE WILL comply with final and binding arbitration awards.

      ______________________
Respondent/Activity

Date: ___________ By: ______________________

      (Signature and 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 for the Federal Labor Relations Authority, whose address is: Thomas P. O'Neill, Jr. Federal Building, 10 Causeway Street, Suite 472, Boston, MA 02222, and whose telephone number is: 617-565- 5100.


Separate Opinion of Member Carol Waller Pope:

      Under ordinary circumstances, I would dissent from an Authority decision mandating that the notice in this case be signed by any official other than the Secretary of Labor. The Agency -- not a component of the Agency -- was a party to the arbitration proceedings that resulted in the arbitration award and the Secretary was a signatory to the agreement at issue in those proceedings. See Exceptions, Attachments, Jt. Ex. 1 at 1; Jt. Ex. 9 at 192. Further, there is no claim that only certain components of the Agency failed to comply with the arbitration award or that only certain employees were affected by the violation. Cf. 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, 1022-23 (1998) (Assistant Administrator for agency component properly directed to sign notice, as ULPs were limited to that component) (Member Wasserman concurring in part and dissenting in part on other grounds). Moreover, the named Respondent here is the Agency, see GC Ex. 1(d) at 1 (Complaint and Notice of Hearing), and the Authority previously has directed the Secretary to sign notices. See, e.g., United States DOL, Wash., D.C., 44 FLRA 988, 999 (1992).

      However, there is currently a vacancy in the membership of the Authority. Until that vacancy is filled, the issuance of decisions requires agreement between Chairman Cabaniss and me. I believe that it is important that decisions of the Authority not be held up over such matters as the identification of the official to sign a notice. For that reason, in order to avoid an impasse in the Authority's disposition of this case, I will agree to order that the notice be signed by the highest official in the Agency's Office of Employee and Labor-Management Relations. See Dep't of Homeland Sec., Bureau of Immigration & Customs Enforcement, 60 FLRA 131, 138 (2004) (Member Armendariz agreeing to resolve an issue to avoid an impasse); Fort Bragg Ass'n of Educators, NEA, 30 FLRA 508, 552 (1987) (Chairman Calhoun agreeing to avoid an impasse where only two members sitting).


File 1: Authority's Decision in 61 FLRA No. 116 and Member Pope's Opinion
File 2: ALJ's Decision


Footnote # 1 for 61 FLRA No. 116 - Authority's Decision

   The separate opinion of Member Pope is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 116 - Authority's Decision

   Article 4, Section 3 of the parties' agreement in existence at the time of the grievance provided, in pertinent part, for "[s]erial sign in/sign out sheets showing times of arrival and departure[.]" United States DOL, Wash., D.C., 59 FLRA 131, 131 n.2 (2003) (DOL) (Chairman Cabaniss concurring).


Footnote # 3 for 61 FLRA No. 116 - Authority's Decision

   We note that the parties dispute whether it is appropriate to consider documents from the proceedi