United States, Department of Defense, Defense Commissary Agency, Peterson Air Force Base, Colorado Springs, Colorado (Respondent) and American Federation of Government Employees, Local 1867 (Charging Party/Union)

[ v61 p688 ]

61 FLRA No. 140

UNITED STATES
DEPARTMENT OF DEFENSE
DEFENSE COMMISSARY AGENCY
PETERSON AIR FORCE BASE
COLORADO SPRINGS, COLORADO
(Respondent)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1867
(Charging Party/Union)

DE-CA-03-0099

_____

DECISION AND ORDER

August 23, 2006

_____

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

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 on cross-exceptions filed by the General Counsel (GC). The GC filed an opposition to the Respondent's exceptions and the Respondent filed an opposition to the GC'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 failing to notify the Union and bargain with it concerning the impact and implementation of a reduction in force (RIF). The Judge found that the Respondent provided adequate notice of the RIF but failed to engage in impact and implementation bargaining as requested by the Union.

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

II.      Background and Judge's Decision

      In 2001, the Respondent at the national level determined that it would be undertaking a reorganization and RIF at various facilities throughout the country. Judge's Decision at 4. Included in these facilities was Peterson Air Force Base. On July 11, 2001, management notified the local Union president (hereinafter "president") of an impending RIF. Id. That same date, the president notified the Respondent by letter of his intent to negotiate over these changes. Joint Exhibit 3.

      Shortly thereafter, the Respondent's Personnel Management Specialist (specialist) talked with the president about the RIF and by July 31, 2001, the president notified the specialist that he would like to submit proposals but did not have enough information about the RIF to do so. Judge's Decision at 4-5. For the remainder of 2001, nothing else concerning the RIF developed.

      In April and May 2002, the Respondent again began to discuss RIFs and met with some employees about "RIF procedures and rights in general terms." Id. at 5. On June 21, 2002, the Respondent sent the president information that after the RIF, which would occur in fiscal year 2003, there would be "71 FTE [full time equivalent], with 44 full time and 45 part time emplo-yees at the Peterson Commissary." Id. Moreover, the information provided explained how the RIF would affect each department. Finally, the notice stated:

As you are aware, when President Bush rescinded E.O. 12871, the permissive subjects of bargaining were also rescinded. Management no longer has a duty to bargain on numbers and types of positions or the determination of mission, budget, number of employees, or organization. Therefore, the new authorization levels are non- negotiable.

Id.

      After receiving the notice, the president again talked to the specialist about bargaining. Id. at 5, 16. According to the president, the specialist indicated to him that "the issue was non-negotiable so there was really no reason for him to request to bargain or to try to be a part of the situation." Id. at 5-6. The president further testified that the June 21 notice did not give "him specific information about who was going to be affected, when the RIF was going to take place and what areas were going to be affected." Id. at 6.

      On September 30, 2002, after talking with the president, the specialist faxed a copy of a RIF registry and RIF summary report to the Union. The registry and the summary contained information about "the full time employees at [Peterson] . . . whether they would be impacted, their job classification, service computation date, etc., and how impacted." Id. Fifteen days later, the Agency began notifying employees of the RIF. [ v61 p689 ] Those notices explained this RIF action and the impact on individual employees. As a result of the RIF action, several employees were scheduled to be displaced or reduced to part-time.

      On October 17, 2002, the president made a demand to bargain, but no bargaining occurred thereafter. Moreover, based in part on this communication from the Union, the Agency again sent out a RIF summary report and a RIF registry which for the first time informed the Union that one employee would be invo-luntarily separated.

      A month or so later, new management began work at the facility and determined that the RIF would need to be rerun. In December 2002 the Respondent notified the president that a new RIF "had been run" and that it "was much better for the employees." Judge's Decision at 8. The president told the Respondent to "go ahead and issue the amended notices to the employees." Id. Shortly thereafter, a new RIF registry was faxed to the Union. Id.

      Employees were impacted by this RIF action in that eight bargaining unit members were offered part time positions rather than their full time positions; three bargaining unit members were offered positions in a different department; and one bargaining unit member was involuntarily separated. The RIF was effective as of January 12, 2003.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Statute by issuing RIF notices to bargaining unit employees on October 10, 2002; by issuing amended RIF notices to bargaining unit employees on December 12, 2002, and by implementing a RIF in January of 2003, without providing the Charging Party with prior notice and an opportunity to negotiate to the extent required by law. The General Counsel, before the Judge, withdrew its allegation that the Respondent failed to provide the Union prior notice or an opportunity to bargain concerning issuance of the amended RIF notices. Id. at 2.

      The Judge determined that the Respondent committed unfair labor practices when it failed to "negotiate with the Union prior to implementing the RIF notices to bargaining unit employees and failed to negotiate regarding the implementation of the RIF in January of 2003." Id. at 17. In reaching this result, the Judge found that while the Respondent had provided adequate notice in July of 2001 and June of 2002 to the Union that it was going to implement its RIF, it nonetheless failed to allow negotiations over these changes because it issued RIF notices, based on a misapplication of the parties' agreement, only fifteen days after serving the Union with an initial RIF summary report and initial RIF registry. In this respect, the Judge determined that the parties' agreement did not compel the Union to provide proposals within this fifteen day time frame. Id. at 16-17. The Judge also noted that there was evidence that the specialist had told the president that "there was nothing to bargain about[.]" Id. at 17. Accordingly, the Judge determined that the "Respondent failed to negotiate with the Union prior to implementing the RIF notices to bargaining unit employees and failed to negotiate regarding the implementation of the RIF in January 2003." Id.

      With respect to the remedy, the Judge applied the factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI) and determined that the a status quo remedy was appropriate. [n1] Specifically, the Judge found that with respect to the first factor, the Respondent gave the Union notice of its intended change. Judge's Decision at 18. Turning to the second factor, the Judge found that the Union made a timely demand to bargain. Id. Under factor three, the Judge determined that the Respondent's failure to discharge its obligation to bargain was willful given its "consistent failure to bargain." Id. Turning to factor four, the Judge found that the adverse impact on the bargaining unit was substantial. Id. Finally, with respect to factor five, the Judge determined that the "Respondent furnished little, if any, evidence regarding disruption of its operation." Id. Accordingly, the Judge decided that "weighing the factors set forth in FCI, . . . a status quo ante remedy is appropriate in this matter." Id. (citing United States Dep't of the Army, Lexington-Blue Grass Army Depot, Lexington, Ky., 38 FLRA 647 (1990) (Blue Grass Army Depot)).

III. Positions of the Parties

A.      Respondent's Exceptions

      The Respondent contends that the Judge erred in finding that the president requested to bargain because the president never submitted proposals to bargain over the RIF. Exceptions at 2-4. In this respect, the Respondent argues that "an agency's obligation to bargain is [ v61 p690 ] predicated on the union's submission of negotiable proposals." Id. at 2 (citing Pension Benefit Guaranty Corporation, 59 FLRA 48 (2003) (Member Pope dissenting in part) (PBGC)). It contends that several other Authority decisions support its argument. Exceptions at 11-15, (citing United States Immigration and Naturalization Service, 24 FLRA 786 (1986) (INS); Division of Military and Naval Affairs, State of New York, Albany, N.Y., 8 FLRA 307 (1982) (DMNA); Internal Revenue Service, 2 FLRA 333 (1979) (IRS)).

      Moreover, the Respondent claims that under the "totality of [the] circumstances" it is clear that the president never intended to bargain. Exceptions at 3. It contends that the July 10, 2001, memo it submitted to the president disclosed when "the RIF would be effective, the number of projected FTEs to be cut by department and the date the RIF notices would be issued." Id. (citing Joint Exhibit 2). Additionally, it also notes that the president never offered impact and implementation proposals despite receiving its July 2002 letter in which it asserts more information was provided. It argues that, as the president was fully apprized of the RIF but nonetheless chose not to offer any proposals, the president was never interested in bargaining. Id.

      Additionally, the Respondent claims that after the president's request to bargain, it notified the president to submit proposals by July 26, 2001, and that the failure of the president to do so was a waiver of the Union's right to bargain. Id. at 5 (citing Joint Exhibit 4). Furthermore, it argues that the president's decision to not attend a December 10, 2002, RIF meeting and to allow amended RIF notices to be issued without bargaining, was a clear indication that the Union never believed it had an outstanding bargaining request with the Respondent. Id. at 5-6. The Respondent claims, in this regard, that there is no evidence that the president made an actual request to bargain in June of 2002, and that the record does not support the Judge's conclusion that the specialist told the president that the Agency would not engage in bargaining. Id. at 8-9.

      With respect to the Judge's remedy, the Respondent contends that a status quo ante remedy is not appropriate under FCI. It argues under the first factor that "the Respondent invited proposals, permitted the Union to attend employee RIF briefings and in general kept the [U]nion abreast of its progress with the RIF." Exceptions at 17. It notes after it sent the notification letter in July of 2001 that the Union immediately requested to bargain. Id. As such, it argues that the first factor "weighs against a status quo ante remedy." Id.

      Turning to the second factor under FCI, the Respondent argues that the Union failed to produce proposals even when provided additional information concerning the RIF on September 30, 2002. Id. at 18. Under the third factor, the Respondent contends that "the Judge incorrectly found that [the] Respondent willfully failed to discharge its bargaining obligation." Id. It asserts that it was ready and willing to bargain but was precluded from doing such because the Union never submitted proposals.

      With respect to the fourth FCI factor, the Respondent states "the RIF would cause more than a de minimus impact on those affected. Therefore Respondent did everything possible within the constraints of the newly defined budget to lessen the impact on employees." Id. at 18-19.

      Under the fifth and final FCI factor, the Respondent argues that a status quo remedy would "disrupt and impair the efficiency and effectiveness of the operations . . . inasmuch as the reorganization was part of a long-range plan." Id. at 19. As such, it argues that the Judge failed to consider that a status quo remedy would disrupt its long term plans, its overall mission and the efficiency of its operations. Id. at 20-23, (citing PBGC, 59 FLRA at 48; United States Dep't of the Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Willow Grove, Pa., 57 FLRA 852 (2002) (Member Pope dissenting as to remedy) (Willow Grove); Federal Aviation Admin., Washington, D.C., 17 FLRA 142 (1985); United States Gov't Printing Office, 13 FLRA 203 (1983)).

      In this respect, it also argues that the Judge erred in finding that it did not offer any evidence that a status quo ante remedy would be "disruptive and impact the efficiency and effectiveness of the Agency's operations." Exceptions at 15. It contends that one Agency witness testified that it was necessary to conduct a RIF in order to comply with the Department of Defense's budget cuts. Id. at 16, (citing Transcript at 156; Jt. Ex. 2, 6). As such, it argues that "a DOD mandated budget cut resulted in less money to run this worldwide Agency." Id.

      Moreover, it contends that because of the reduced funding, bringing back workers for a short-time period until a new RIF could be run, pursuant to the Judge's remedy, would disrupt the Agency's operations. Id. In this respect, it also asserts that impact and implementation bargaining would not have changed the outcome of the RIF. Id. at 20. [ v61 p691 ]

      Finally, the Respondent argues that the Judge's decision fails to comply with the Administrative Procedures Act because the Judge did not "acknowledge the testimony of the Respondent's witness and the joint exhibit or explain her rationale," in determining that the president either requested bargaining or that the president was told there was nothing to bargain over. Exceptions at 23-24. In this respect, it asserts that the Judge failed to "state and explain the basis of credibility determinations" where there was conflicting testimony. Id. at 23 (citing United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, OH, 55 FLRA 968 (1999); United States Dep't of Commerce, National Oceanic and Atmospheric Admin., National Ocean Serv., Coast and Geodetic Survey, Aeronautical Charting Div., Wash., D.C., 54 FLRA 987, 1007 (1998)).

B.      General Counsel's Opposition

      The General Counsel asserts that the president requested bargaining on multiple occasions. Opposition at 10-11. It contends that the parties' agreement did not require the Union to submit proposals and, in fact, the Respondent failed to meet the terms of the agreement when it did not provide the Union with specific notice of an implementation date. Opposition at 10 n.5. Therefore, it claims that the Union never waived its right to bargain. It also claims that the Authority decisions relied on by the Respondent are distinguishable. Opposition at 12-15.

      With respect to the remedy, the GC disagrees with the Judge that the Respondent provided the Union adequate notice. However, it otherwise agrees with the Judge's conclusions and application of the FCI factors. It specifically argues that the Respondent has offered no record evidence with regard to the fifth factor under FCI. Opposition at 16. It states that while the record may show that the Department of Defense implemented budget cuts at Peterson, this evidence does not show how a status quo ante remedy would disrupt "the efficiency and effectiveness of agency operations." Id. (citing Army and Air Force Exchange Service, Waco Distribution Ctr., Waco, Tex., 53 FLRA 749, 760 (1997)). In this regard it asserts that the Respondent's record evidence is merely argument presented by Respondent's counsel or evidence that has no bearing on whether a status quo remedy would disrupt the efficiency and effectiveness of agency operations. Opposition at 17. Moreover, it argues that the Respondent has not "offered any evidence to suggest that there would be any difficulty in restoring employees to their previous positions and work schedules." Opposition at 18 (citing United States Army Corps of Engineers, Memphis District, Memphis, Tenn., 53 FLRA 79, 84-86 (1997) (Army Corps, Memphis)). Finally, it contends that the Respondent has not shown that granting a status quo remedy would result in meaningless work being assigned. Opposition at 18.

C.      General Counsel's Cross-Exception

      The GC argues that "the Respondent failed to provide the Union with adequate and specific prior notice describing its plan to issue RIF Notices to bargaining unit employees in October 2002 or concerning its implementation of the RIF effective January 12, 2003." Cross-exception at 7 (emphasis in original). In this respect, the GC contends that the Respondent did not meet the threshold of furnishing the Union notice of a proposed change in conditions of employment that was "sufficiently specific and definitive" to provide the Union with a reasonable opportunity to request bargaining. Id. (citing Army Corps, Memphis, 53 FLRA 79). It notes that in Army Corps, Memphis, the Authority found the agency must inform the union of "the scope and nature of the proposed change, . . . the certainty of the change, and the planned timing of the change." Army Corps, Memphis, 53 FLRA at 82.

      Based on the above, the GC argues that the Respondent failed to divulge at least two critical elements of its proposed change. First, it argues that the Respondent did not inform the Union of the "scope and nature" of the change when it failed to disclose that one employee would be involuntarily separated. Cross-exception at 8-9 (citing Army Corps, Memphis). Second, it contends that the Respondent failed to notify the Union of the "timing of the change." Id. (citing Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 41 FLRA 690, 698-99 (1991) (Ogden)).

D.      Respondent's Opposition to the Cross- Exceptions

      The Respondent argues that whether an agency has provided sufficient notice of a change in working conditions is "developed on a case-by-case basis." Opposition at 1-2 (citing Dep't of the Treasury, United States Customs Serv., Region 1, (Boston, Massachusetts), 16 FLRA 654 (1984)). It contends that it notified the Union in July of 2001 that it would issue RIF notices on September 10, 2001, and again provided notice in June of 2002 prior to the implementation of the RIF. Opposition at 2, 3. It argues that the president was able to submit a bargaining request because its notice was sufficiently specific. Id. at 2-3 (citing Ogden).

      With regard to the GC's contention that it needed to provide the president with a specific date of implementation, the Respondent argues that its "failure to [ v61 p692 ] specify an implementation date in the union's notice did not constitute a failure to provide adequate notice." Id. at 3 (citing General Services Admin, 15 FLRA 22, 24 (1984) (GSA); Federal Trade Commission, 15 FLRA 994, 996 (1984) (emphasis in original)). It contends that under Authority precedent its notices of July, 2001 and June, 2002 "provided adequate notice to the union that a RIF was going to be conducted at the Peterson AFB commissary." Opposition at 3.

      Furthermore, the Respondent claims that it provided the Union with sufficient information as to which positions would be affected by the RIF and any information it did not provide was not available to the Respondent until September of 2002. Id. at 5. As such, it argues that the Union had no reason not to submit proposals and "waived its right to bargain regarding the RIF" when it failed to do so. Id. at 6.

IV.      Analysis and Conclusions

A.      The Respondent Provided Sufficient Notice  [n2] 

      Adequate notice of a proposed change in conditions of employment triggers the exclusive representative's responsibility to request bargaining over the change. See Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1535 (1996) (Materiel Command). Failure to request bargaining in response to adequate notice of a proposed change in conditions of employment may be construed as a waiver of the exclusive representative's right to bargain. See, e.g., Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575, 582 (1992).

      Notice of a proposed change in conditions of employment must be sufficiently specific and definitive to adequately provide the exclusive representative with a reasonable opportunity to request bargaining. E.g., Ogden, 41 FLRA at 698. "For example, the notice must apprise the exclusive representative of the scope and nature of the proposed change in conditions of employment, the certainty of the change, and the planned timing of the change." Army Corps, Memphis, 53 FLRA at 82; Ogden, 41 FLRA at 699 (notice of a furlough that did not specify either the number of employees to be furloughed or the expected date of the action was inadequate); Department of Health & Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma, 31 FLRA 498, 508-09 (1988) (although union was aware of impending changes in one hospital, notice was inadequate because union was never informed of the area-wide application of the change), aff'd as to other matters, 885 F.2d 911 (D.C. Cir. 1989); Internal Revenue Service (District, Region and National Office Unit and Service Center Unit), 10 FLRA 326, 327, 340 (1982) (notice that was conditional and qualified was not adequate). The notice must be sufficient to inform the exclusive representative of what will be "lost" if it does not request bargaining. American Distributing Co., Inc. v. NLRB, 715 F.2d 446, 451 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1983).

      The Judge found that the Union was notified in July of 2001 and again in June of 2002 that the Respondent intended to implement a RIF. In the June 2002 notification, the Respondent stated that it had determined the numbers of full time equivalent positions at Peterson that would be changed because of the RIF and that those numbers were authorized for fiscal year 2003. This notification was further followed up by a more specific communication which included the Respondent's RIF summary report and RIF registry on September 30, 2002. Those documents listed bargaining unit employees at Peterson, with the exception of one, and how they would be impacted by the RIF.

      The GC claims that the information provided to the president was not "sufficiently specific and definitive" because it failed to set a specific date in which the change would occur and failed to notify the Respondent that one employee would be separated. Cross-exceptions at 7-9 (citing to Ogden and Army Corps, Memphis). For the following reasons, we reject these claims.

      With respect to the issue of setting a specific date, in GSA, 15 FLRA at 24, the Authority held that where it can be clearly ascertained that a change in conditions of employment will be forthcoming, there is no requirement that an agency provide the exact date of the change in providing notice. Thus, contrary to the GC's argument, there is no absolute requirement that to be sufficient, a notice must contain the exact date of implementation.

      Moreover, Ogden and Army Corps, Memphis, on which the GC relies, are distinguishable. With respect to Ogden, the Authority determined that the notice of a proposed change was insufficient where the agency failed to specify not only the expected date but the number of employees to be furloughed. Ogden, 41 FLRA FLRA at 699. Furthermore, in Army Corps., the Authority found a notice insufficient because it did [ v61 p693 ] not apprize the Union of its "specific and definitive notice of the decision" to eliminate a particular position. [n3] Army Corps, Memphis, 53 FLRA at 84 (emphasis added). As discussed below, unlike Ogden and Army Corps, Memphis, the Respondent in this case provided clear notice of its decision to conduct a RIF as well as the anticipated impact of the RIF. Thus the GC's reliance on these decisions is misplaced.

      As in GSA, the changes in conditions of employment in this matter were "imminent". Judge's Decision at 16. In this respect, the Union was aware of the Respondent's RIF summary report and RIF registry, which was sufficiently detailed to alert the Union to the immediacy of the RIF action even in the absence of a specific date. When these documents are coupled with the Respondent's memorandum from June of 2002 stating that the RIF would affect FY 2003 staffing levels, we find that the absence of a specific date did not render the notice inadequate.

      With respect to the GC's remaining argument, that the initial notice was not adequate because the Respondent failed to identify one bargaining unit employee who would be involuntarily separated, we note that the evidence already provided by the Respondent was sufficient to provide the Union with notice of the scope and nature of the RIF and that it was imminent. In this respect, the absence of an exact date, and the failure of the Respondent to specifically identify the involuntary separation of a single employee, do not warrant finding that the initial notice was not sufficiently specific and definitive to adequately provide the exclusive representative with a reasonable opportunity to request bargaining. [n4] In fact, it is clear from the record that the Union did request bargaining on more than one occasion. Judge's Decision at 4, 16; Jt. Ex 3. Moreover, the notice itself informed the Union that after the RIF there would be 44 full-time and 45 part-time employees at the Peterson Commissary and identified those positions by department. Judge's Decision at 5. Viewing these circumstances in their totality, we conclude that the Respondent did not violate the Statute by failing to provide adequate notice of its intent to conduct a RIF of bargaining unit members at the Peterson Commissary.

B.      The Decision Is Not Contrary to the Administrative Procedures
          Act

      In addressing the Respondent's claim that the Judge's decision is contrary to the Administrative Procedures Act (APA) because the Judge failed to state the basis of her credibility determinations, we note that the Judge stated her determinations were based on "the entire record, including my observation of the witnesses and their demeanor[.]" Judge's Decision at 2. Moreover, the Judge's observation of witness demeanor implicitly forms the basis for her determination that certain testimony was credible and other testimony was not credible. Additionally, while the Respondent argues that there was "uncontroverted testimony" that the president stated he would submit proposals to the specialist on July 26, 2001, the Respondent fails to mention that the president informed the Respondent five days later that he needed additional information before submitting any proposals. Exceptions at 5; Judge's Decision at 4; See, e.g., Jt Ex. 4 and 5. Accordingly, the Respondent has not shown the Judge failed to resolve "contradictory" evidence in the record or that to the extent such evidence exists, the Judge's reliance on witness demeanor is erroneous. As such, we reject the Respondent's claim that the Judge's decision is contrary to the APA.

C.      The Respondent Failed to Offer the Union an Opportunity to
          Bargain

      The Respondent's exceptions call into question whether the Union was obligated to submit proposals within a certain time frame prior to implementation. The Respondent cites several decisions to support its contention that the Union's failure to submit proposals constitutes a waiver of bargaining. Exceptions at 2, 11-15 (citing PBGC, 59 FLRA 48; INS, 24 FLRA 786 (1986); DMNA, 8 FLRA 307 (1982); IRS, 2 FLRA 333 (1979)).

      As set forth above, adequate notice of a proposed change in conditions of employment triggers the exclusive representative's responsibility to request bargaining over the change. See United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999) (USP, Leavenworth). Failure to take such action may result in a finding that the union has waived its bargaining rights. Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575, 582-83 (1992). For the reasons that follow, we find that the decisions relied on by the Respondent are distinguishable, that the Union did not waive its right to bargain, and that the Union was denied the opportunity to engage in impact and implementation bargaining. [ v61 p694 ]

      In PBGC, the Authority stated that the "obligation to bargain is predicated on the union's submission of negotiable proposals[,]" and that "[i]f all pending union proposals are nonnegotiable, then the agency will not be found to have violated the Statute[.]" PBGC, 59 FLRA at 50 (emphasis in original). The Authority did not hold, however, that a union must submit proposals as part of a bargaining request. As the Authority has consistently held, a union may request bargaining, request additional information, or request additional time. See USP, Leavenworth, 55 FLRA at 715 (citing Materiel Command, 51 FLRA at 1535). [n5] 

      In INS, after reaching impasse during negotiations, the agency notified the union that it "would implement its proposed procedures . . . in two weeks, and invited bargaining during that two-week period." INS, 24 FLRA at 788. The union in that case failed to submit proposals, and there is no evidence in the record that it requested additional information or requested additional time. Id. at 788, 790. Accordingly, this decision is also distinguishable.

      In DMNA, the Authority determined that the union could not properly require the agency to submit proposals prior to bargaining. As the Authority determined, the union's actions were, "tantamount to a refusal to bargain concerning impact and implementation." DMNA, 8 FLRA at 320. Nothing in DMNA establishes that a union waives its right to bargain by failing to submit proposals; the decision establishes only that a union cannot require an agency to submit proposals over a proposed agency implemented change as a condition of bargaining.  [n6] 

      Here, the Union reiterated its prior request to bargain after receiving the Respondent's June, 2002 RIF notice. Judge's Decision at 5, 16. In response to this request the Agency did not bargain and instead informed the Respondent that the issue was non-negotiable. Id. at 5, 17. Moreover, after issuing RIF notices in October of 2002, and after receiving yet another request to bargain, the Agency did not do so. Therefore, because the Union had an outstanding request to bargain prior to the October 15, 2002, notification and another request to bargain prior to implementation in January of 2003, the Respondent had a duty to bargain over the impact and implementation of this RIF prior to issuing RIF notices or implementing the RIF in January of 2003. As the Union was denied the opportunity to engage in impact and implementation bargaining, the Respondent violated § 7116(a)(1) and (5) of the Statute. See, e.g., United States Dep't of Veterans Affairs, Veterans Admin. Medical Ctr., Memphis, Tenn., 42 FLRA 712, 713 (1991). As such, we deny the Respondent's exceptions to the Judge's decision finding that the Respondent violated § 7116(a)(1) and (5) of the Statute.

D.      A Status Quo Ante Remedy is Appropriate

      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 FCI, 8 FLRA 604; Army Corps, Memphis, 53 FLRA at 84 & n.4.                                         

      The appropriateness of a status quo ante remedy must be determined on a case-by-case basis, carefully balancing the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy. Willow Grove, 57 FLRA at 857; FCI, 8 FLRA at 606. In making this determination the Authority relies upon application of the FCI factors. See footnote 2, supra.

      Turning to the first factor, the Judge determined that the Respondent provided adequate notice to the Union of its proposed changes. For the reasons expressed previously, we agree with the Judge. With respect to the second factor, the record reveals that the Union made timely demands to negotiate.

      Under the third factor, the Judge found that the Respondent willfully failed to discharge its bargaining obligation. The record reveals that the Union requested three specific times to bargain over the Respondent's changes. Judge's Decision at 4-5, 7. Despite these requests, the Respondent implemented these changes without bargaining. Under these circumstances, knowing that these bargaining requests were outstanding, the Respondent's failure to engage in bargaining with the [ v61 p695 ] Union and implement was willful. Additionally, factor four weighs in favor of finding this remedy appropriate as the nature and the impact on the bargaining unit is substantial.

      Turning to the last factor, the Respondent claims that a status quo ante remedy would seriously "disrupt the accomplishment of the Agency's mission and the efficiency of its operations[.]" Exceptions at 15. In this regard, it is well established that in rendering a decision on this factor, the Authority requires a respondent's argument to be "based on record evidence." Army and Air Force Exchange Service, Waco Distribution Center, Waco, Tex., 53 FLRA 749, 763 (1997).

      In agreement with the Judge we find that the Respondent has offered no evidence as to how a status quo ante remedy would disrupt or impact the efficiency and effectiveness of the agency's operations. [n7] While the evidence indicates that the RIF was the result of budget considerations, this alone does not explain how a status quo remedy would disrupt or impact the efficiency and effectiveness of the Respondent's operations. In this respect, the Respondent has provided us with the rationale behind its original decision to conduct a RIF but has not shown the Authority why, given its failure to negotiate over impact and implementation of the RIF, a status quo ante remedy is not appropriate. See, e.g., Blue Grass Army Depot, 38 FLRA at 649-50. Accordingly, based on weighing the FCI factors and noting that four of the five factors support finding that a status quo ante remedy is appropriate, we deny the Respondent's exception and affirm the Judge's decision consistent with this decision.

V. Order

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Dep't of Defense, Defense Commissary Agency, Peterson Air Force Base, Colorado Springs, Colorado shall:

      1.      Cease and desist from:

           (a)     Issuing reduction in force (RIF) notices to bargaining unit employees and implementing RIFs without first affording the American Federation of Government Employees, Local 1867 (the Union), the exclusive collective bargaining representative of the affected employees, an opportunity to bargain regarding the procedures to be observed in implementing such changes and appropriate arrangements for employees adversely affected by the issuance of such RIF notices and by the implementation of such RIFS.

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

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

           (a)      Rescind the RIF implemented January 12, 2003.

           (b)      Offer to reinstate Tammy M. Longland to the GS-3 Identification Card Checker position she occupied prior to January 12, 2003.

           (c)     Offer to return Antonio Briggs and Maria I. Camacho to the GS-5 Meatcutting Worker positions they occupied prior to January 12, 2003.

           (d)     Offer to return Kathryn L. McCarthy, Christa K. Allen and Julie T. Cox to the GS-5 Materials Handlers positions they occupied prior to January 12, 2003.

           (e)     Offer to return Sales Store Checkers Diane Coleman, Donna Cruz, Tonya Y. Gibson, Tae S. Luther, Sun O. Merritt and Barbara K. Martinez to the full time positions they occupied prior to January 12, 2003.

           (f)     Make Longland, Coleman, Cruz, Gibson, Luther, Merritt and Martinez whole to the extent they have suffered any reduction of pay and/or benefits as a result of implementation of the RIF on January 12, 2003. [ v61 p696 ]

           (g)     Notify the Union of any intent to issue RIF notices or to implement a RIF affecting bargaining unit employees and, upon request, negotiate over the procedures to be observed in implementing such changes and appropriate arrangements for employees adversely affected by the issuance of RIF notices and by the implementation of the RIF.

           (h)     Post at its facilities at the Defense Commissary Agency, Peterson Air Force Base, Colorado Springs, Colorado, where bargaining unit employees represented by the American Federation of Government Employees, Local 1867, 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 Store Manager, and shall be posted and maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced or covered by any other material.

           (i)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Denver 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 Dep't of Defense, Defense Commissary Agency, Peterson Air Force Base, Colorado Springs, Colorado 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 unilaterally issue reduction-in-force (RIF) notices to bargaining unit employees and implement RIFs without first affording the American Federation of Government Employees, Local 1867 (the Union), the exclusive collective bargaining representative of the affected employees, an opportunity to bargain regarding the procedures to be observed in implementing such changes and appropriate arrangements for employees adversely affected by the issuance of such RIF notices and by the implementation of such RIF.

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

WE WILL rescind the RIF implemented January 12, 2003 and return employees to the positions and work schedules they occupied prior to January 12, 2003.

WE WILL provide the Union with adequate and specific notice of any intent to implement a RIF and, upon request, bargain with the Union to the extent required by law regarding procedures for implementing the RIF and over appropriate arrangements for employees adversely affected by the RIF.

WE WILL make whole employees to the extent they have suffered any reduction of pay and/or benefits as a result of implementation of the RIF on January 12, 2003.

      _______________________
               (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, Federal Labor Relations Authority, Denver Regional Office, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado, 80204-3581 and whose telephone number is (303) 844-5226.


File 1: Authority's Decision in 61 FLRA No. 140
File 2: ALJ's Decision


Footnote # 1 for 61 FLRA No. 140 - Authority's Decision

   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 or impact the efficiency and effectiveness of the agency's operations. United States Immigration & Naturalization Serv., Wash., D.C., 55 FLRA 69, 70 n.3 (1999) (Member Wasserman Dissenting).


Footnote # 2 for 61 FLRA No. 140 - Authority's Decision

   The Respondent does not argue that the changes to conditions of employment are de minimis. Moreover, as notice necessarily precedes bargaining, we address the GC's cross-exceptions prior to the Respondent's exceptions.


Footnote # 3 for 61 FLRA No. 140 - Authority's Decision

   In Army Corps, Memphis, the union requested to bargain over the elimination of a single position whereas in the present matter 12 employees were ultimately affected by the RIF.


Footnote # 4 for 61 FLRA No. 140 - Authority's Decision

   Prior to implementing the RIF in January of 2003, the Respondent provided information identifying the one employee who would be involuntarily separated. Jt. Ex. 11.


Footnote # 5 for 61 FLRA No. 140 - Authority's Decision

   The Authority has determined that "parties may define limits on rights, including bargaining rights under the Statute." Materiel Command, 51 FLRA at 1536 (citing FAA, Northwest Mountain Region, Seattle, Wa., 14 FLRA 644 (1984)). In this respect, the parties in Materiel Command by contract agreed that "the Union will submit written proposals to the Labor Relations Office not later than 15 workdays after receipt of employer's notification." Materiel Command, Id. at 1533 n.1 (citing Article 33, Section 33.02(b)) of the parties' agr