United States Department of the Air Force, 12TH Flying Training Wing, Randolph Air Force Base, San Antonio, Texas (Respondent/Agency) and American Federation of Government Employees, Local 1840, AFL-CIO (Charging Party/Union)

[ v63 p256 ]

63 FLRA No. 93

UNITED STATES
DEPARTMENT OF THE AIR FORCE
12TH FLYING TRAINING WING
RANDOLPH AIR FORCE BASE
SAN ANTONIO, TEXAS
(Respondent/Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 1840, AFL-CIO
(Charging Party/Union)

DA-CA-05-0503

_____

DECISION AND ORDER

April 27, 2009

_____

Before the Authority: Carol Waller Pope, Chairman and
Thomas M. Beck, Member [n1] 

I.     Statement of the Case

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

      The complaint, as amended at the hearing, 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) for a unit of on-base, non-appropriated fund (NAF) employees. 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.

II.     Background and Judge's Decision

A.     Background

      The facts of this case, briefly summarized here, are set forth fully in the decision of the Judge. The parties began negotiating ground rules for the first CBA for a unit of on-base NAF employees in 1998. When ground rules were finalized in 2000, the parties began negotiating the CBA. [n2]  Judge's Decision (Decision) at 3. The parties reached agreement on a CBA, which was ratified by the membership and signed by the 12th Support Group Commander. The Field Services Division (FAS) then conducted agency head review and, in a March 2003 letter, disapproved the CBA because it did not "conform to law, rule and/or regulation." Id. at 4. (citing GC Exhibit (Ex.) 4). After identifying the specific articles and sections that were disapproved, the FAS stated that the parties could either implement the remaining approved provisions or renegotiate the CBA to address the disapproved provisions. Id. Following receipt of this letter, the Respondent attempted to renegotiate the affected portions of the CBA, but the Charging Party did not respond. Id. at 5.

      In late 2003, the new Charging Party president asked one of the vice-presidents to act as the chief negotiator for the on-base CBA negotiations. Id. In February 2004, the vice-president informed the Respondent's labor relations officer that the Charging Party wanted to resume bargaining over the on-base CBA. The labor relations officer stated that she would not begin on-base negotiations until she had finished negotiating with another of the Charging Party's units. Id. The vice-president agreed to wait until the completion of the other negotiations, which occurred in September or October 2004. Id.

      In September 2004, the Charging Party president and the Respondent's labor relations officer met and discussed whether to negotiate an entirely new CBA rather than modify the previous one. Id. at 6. In October, the Charging Party president sent a letter to the Respondent formally designating the vice-president as the chief negotiator (Chief Negotiator) and requesting [ v63 p257 ] that the CBA negotiations restart immediately. Id. The Charging Party Chief Negotiator unsuccessfully attempted to reach the Respondent's labor relations officer several times in November and December. Id. When they finally talked, the labor relations officer stated that she would not discuss negotiations until the new year. Id. Because he continued having difficulties contacting the labor relations officer in January 2005, the Charging Party Chief Negotiator asked the president to speak with her. The Charging Party president did so and then informed the Chief Negotiator that the Respondent's labor relations officer wanted to start negotiations "from scratch." Id. at 7 (citing Transcript (Tr.) at 48).

      The Charging Party president notified the labor relations officer by letter in February 2005 that the Charging Party wanted to restart CBA negotiations from where they left off in 2003. Id. He submitted the previously signed and ratified CBA as a proposal for negotiations. GC Exs. 6 - 7. In March, the Charging Party and the Respondent began discussing a new lease for the Charging Party's on-base office and the Respondent proposed waiving rent for five years in exchange for setting aside CBA negotiations for the on-base unit and one other unit during that time. Decision at 7. When the Charging Party rejected this proposal, the Respondent set a date in early May to start negotiations on the ground rules for a new CBA. Id. at 8. The Respondent's labor relations officer informed the Charging Party president that she would not continue negotiations on the old CBA because she had reached an agreement with him to start negotiations on a new CBA prior to the Chief Negotiator's appointment. Id. At the May meeting, the Respondent's labor relations officer refused to begin discussions with the Charging Party Chief Negotiator without the president, who did not attend. Id.

      In late May 2005, the Charging Party Chief Negotiator attempted to involve the Federal Mediation and Conciliation Service in assisting with the resolution of the apparent impasse on the issue of where to begin negotiations. Id. at 8. The Respondent refused to participate, claiming that there was no impasse because an agreement had already been reached. Id. at 8-9. At their last meeting in early June, the parties were again unable to agree on the starting point for negotiations. Id. at 9. Following these events, the Charging Party filed a ULP charge against the Respondent, and the GC issued a complaint alleging that the Respondent violated § 7116(a)(1) and (5) of the Statute by refusing to negotiate over the disapproved portions of the parties' CBA.

B.     Judge's Decision

      As an initial matter, the Judge found that, based on the ground rules finalized in 2000, the portions of the parties' CBA that were not disapproved by the FAS automatically became effective. Id. at 15.

      The Judge further found that the one-year delay between the Charging Party's receipt of the March 2003 FAS letter and the February 2004 request for a resumption of bargaining did not constitute abandonment of the CBA. The Judge noted that there was "a great deal of internal . . . confusion" among officials of the Charging Party in early 2003 due to the death, discipline, and retirement of key officials. Id. at 16. She also found that the Charging Party was involved in negotiations for two other bargaining units. The Judge determined that, although the Charging Party vice-president had not been officially appointed as Chief Negotiator in February 2004, his efforts to engage the Respondent's labor relations officer at that time were adequate to indicate that the Charging Party was interested in renewing negotiations. Id. at 17. The Judge found that any delay after February 2004 could not be attributed to the Charging Party because it resulted from the request of the Respondent's labor relations officer. The Judge stated that "[g]iven the length of time it takes both these parties to proceed with labor relations issues," a delay of one year could not be considered abandonment of the CBA. Id.

      Further, the Judge determined that the evidence did not support the Respondent's claim that the Charging Party president made an oral agreement to start negotiations for an entirely new CBA. In this regard, the Judge found that the Charging Party president discussed this option in September 2004. Id. at 18. However, the Judge also found that the discussions "were never more than general in nature and never resulted in a clear and concise agreement." Id. (citing Internal Revenue Serv., N. Fla. Dist., Tampa Field Branch, Tampa, Fla., 55 FLRA 222 (1999)). The Judge found, in this regard, that the Charging Party president's testimony regarding these events was "consistent and sincere," while the testimony of the Respondent's labor relations officer was "self-serving and not candid." Id.

      The Judge further noted that the record evidence did not comport with the existence of an oral agreement. In this regard, the Judge found that the Respondent's effort over several months to convince the Charging Party president to begin negotiations on an entirely new CBA was evidence that a specific agreement had not been reached in September 2004. Id. The Judge also found that the Charging Party president asked for a draft of the Respondent's proposed CBA, which was never [ v63 p258 ] provided, and that the parties' previous CBA negotiations always occurred through written proposals and final agreements. Id. The Judge further found that the discussions about free rent for the Charging Party office presented evidence of the Respondent's attempts to avoid CBA negotiations. Id. at 19. The Judge noted that, although the Respondent consistently insisted on starting negotiations from the beginning, it never presented the Charging Party with proposals for ground rules or any other bargaining issues. Id.

      Based on the totality of the circumstances, the Judge found that the Respondent did not bargain in good faith. Id. at 19-20 (citing 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)). In this regard, the Judge found that the Respondent did not approach negotiations with a sincere resolve to reach agreement on the proposals submitted by the Charging Party and successfully avoided bargaining. Id. at 20. Accordingly, the Judge concluded that the Respondent violated § 7116(a)(1) and (5) of the Statute by refusing to negotiate with the Charging Party over the CBA. As a remedy, the Judge ordered the Respondent to negotiate with the Charging Party and recommended a notice posting.

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent first excepts to the Judge's finding that it violated § 7116(a)(1) and (5) of the Statute by "refusing to negotiate only on the disapproved portions of the [CBA] . . . when the [Charging Party] had agreed to begin negotiations on an entirely new CBA, beginning with new ground rules[.]" [n3]  Exceptions at 1. The Respondent claims that the facts of the case, as set forth by the hearing testimony of the three Respondent witnesses, establish that the Charging Party president agreed to set the previous CBA aside and start negotiations from the beginning. The Respondent argues that the Judge's credibility determination on this issue is not supported by the evidence. Id. at 15.

      The Respondent also asserts that the Judge erred in finding that the Charging Party did not abandon CBA negotiations. Id. at 16. The Respondent states that the Charging Party failed to return to the bargaining table when the CBA was disapproved in March 2003 and did not express interest again until September 2004. Id. The Respondent argues that the February 2004 discussion initiated by the Chief Negotiator was not a valid attempt to recommence negotiations because he did not have any authority to do so until he was formally appointed by the Charging Party president six months later. Id.

      The Respondent further alleges that the Charging Party president agreed in September 2004 to begin negotiating over an entirely new CBA. Id. at 19. According to the Respondent, the agreement to restart negotiations was not memorialized in writing because the labor relations officer and the Charging Party president "had a good working relationship dealing orally on a variety of subjects[.]" Id. at 20.

      In its final exception, the Respondent claims that the Judge erred in finding that it presented no proposals for negotiation. The Respondent argues that it made a proposal to negotiate an entirely new CBA and then prepared a draft CBA based on a preexisting personnel manual. The Respondent also states that it proposed five years of free rent for the Charging Party offices in exchange for agreeing to forego CBA negotiations during that time. Id. at 20-21.

B.     GC's Opposition

      With regard to the Respondent's first exception, the GC states that the Judge did not make the specific finding to which the Respondent excepts. Likewise, the GC contends that the Respondent's second exception does not challenge the specific findings on which the Judge relied and does not establish that the Charging Party intended to abandon the CBA. Opposition at 8-9. Addressing the Respondent's third exception, the GC states that the Respondent fails to demonstrate how the elements of contract formation were met and that the Respondent relies on testimony that was not credited by the Judge. Id. at 9-10. Lastly, the GC contends that the Respondent's claim that it presented proposals for negotiation is not persuasive because it did not produce a copy of the draft CBA that it allegedly prepared, and that the proposal to forego bargaining in exchange for free rent is not evidence that the Respondent proposed to negotiate a new CBA. [ v63 p259 ]

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) states 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[.]" Wright-Patterson, 36 FLRA at 531-32 (finding failure to bargain in good faith where the agency did not have a sincere desire to reach agreement, attempted to avoid bargaining, did not respond to requests to bargain, and made it difficult for the union to arrange meetings). See also United States Dep't of Justice, Executive Office for Immigration Review, N.Y., N.Y., 61 FLRA 460, 465 (2006) (finding failure to bargain in good faith where the agency did not provide dates for bargaining and insisted on bargaining by email). For the reasons discussed below, we adopt the Judge's finding that the Respondent violated its statutory duty to bargain in good faith.

A.      The Judge did not err in making credibility determinations.

      Although the Respondent's first exception, regarding whether the Charging Party president agreed to begin negotiations on a new CBA, is framed as a challenge to a factual finding, it is, in effect, a challenge to the Judge's determination that the Charging Party president was a credible witness on the issues of whether the parties agreed orally to begin negotiating a new CBA.

      The Authority will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. See 24th Combat Support Group, Howard Air Force Base, Republic of Pan., 55 FLRA 273, 279 (1999). Credibility determinations may be based on a number of considerations including, but not limited to: (1) the witness's opportunity and capacity to observe the event in question; (2) the witness's character as it relates to honesty; (3) prior inconsistent statements by the witness; (4) the witness's bias or lack thereof; (5) the consistency of the witness's testimony with other record evidence; (6) the inherent improbability of the witness's testimony; and (7) the witness's demeanor. See United States Dep't of Commerce, Nat'l Oceanic & Atmospheric Admin., Nat'l Ocean Serv., Coast & Geodetic Survey, Aeronautical Charting Div., Wash., D.C., 54 FLRA 987, 1006 n.11 (1998) (citing Hillen v. Dep't of the Army, 35 M.S.P.R. 453, 458 (1987)). With respect to witness demeanor, the Authority has recognized that only the judge has the benefit of observing the witnesses while they testify, and, accordingly, the Authority attaches great weight to a judge's determinations based on demeanor. See Dep't of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 55 FLRA 1201, 1204 (2000) (Warner Robins AFB). Where a party raises exceptions to credibility determinations based on considerations other than witness demeanor, the Authority will review those determinations based on the record as a whole. See id.

      Here, the Judge's credibility determinations were based on demeanor and the consistency of the testimony with record evidence. Decision at 18-19. In resolving the issue of whether an oral agreement had been reached, the Judge found that the Charging Party president's testimony that he "never made an agreement to start negotiations from the beginning" was "consistent and sincere," while that of the Respondent's labor relations officer was "self-serving and not candid." Decision at 18. The Judge thus credited the Charging Party president's testimony that, although the parties had discussed negotiating a new CBA, they had not reached a "clear and concise" oral agreement to that effect. Id. This determination is entitled to great weight because it is based on the Judge's own observations. Warner Robins AFB, 55 FLRA at 1204.

      The Judge did not make explicit credibility rulings on the testimony of two Respondent witnesses who stated that the Charging Party president agreed to negotiate an entirely new CBA. However, the Authority has held that where a judge is confronted with conflicting witness testimony and affirmatively declares that one witness is credible, absent evidence to the contrary, the Authority will construe this as a determination by the [ v63 p260 ] judge that the opposing witness testimony is not credible. See United States Dep't of the Treasury, Internal Revenue Serv., 56 FLRA 906, 912 n.5 (2000). We therefore construe the Judge's determination that the Charging Party president's testimony regarding an oral agreement was credible as a finding that opposing testimony from the two Respondent witnesses was not credible. See id.

      To the extent that the Judge's credibility determinations were based on the consistency of the witnesses' testimony with the record evidence, the Respondent has not demonstrated by a clear preponderance of the evidence that the Judge's credibility determinations are erroneous. Although the Respondent assigns different weight to the witnesses' testimony, the record as a whole supports the Judge's findings concerning the parties' credibility. In this regard, a Respondent witness, who was present during the September 2004 meeting, stated that the Charging Party president requested a written proposal from the Respondent. Tr. at 138. This indicates that the Charging Party president did not make, or intend to make, an oral agreement at that time. Furthermore, the record contains little evidence in support of the Respondent witnesses' testimony that an agreement was reached. In this regard, the first written reference to that alleged agreement appeared in an April 2005 letter from the Respondent's labor relations officer to the Charging Party president. However, even that letter is devoid of detail. See Respondent Ex. 3. In further support of her conclusion that an oral agreement regarding a CBA had not been reached, the Judge found that the parties had a practice of negotiating exclusively in terms of written proposals and final agreements. Decision at 18. Although it is uncontested that the parties made certain oral agreements, there is no evidence that the parties made oral agreements related to bargaining. Id. Additionally, the Respondent's offer of free rent in exchange for no CBA negotiations for five years is not consistent with its claim that it had already agreed with the Charging Party president to start negotiations on a new CBA.

      Accordingly, we find that the Respondent has not established by a clear preponderance of the evidence that the Judge's credibility determinations are inconsistent with the record, and we deny the exception.

B.     The Judge did not err in finding that the Charging Party had not abandoned the CBA.

      In determining whether a judge's factual findings are supported, the Authority looks to the preponderance of the record evidence. United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Marianna, Fla., 59 FLRA 3, 5 (2003) and cases cited therein. Lion Unif., Inc., Janesville Apparel Div. v. NLRB, 905 F.2d 120, 124 (6th Cir. 1990) (finding "a de novo review by the agency of the [administrative law judge's] determination" to be more appropriate than a more deferential standard).

      The preponderance of the evidence supports the Judge's finding that no one from the Charging Party approached the Respondent about the CBA from March 2003 until February 2004, when the vice-president indicated that the Charging Party was interested in resuming negotiations. Tr. at 43, 95. The record also supports the Judge's finding that the appointment of the Charging Party vice-president to the role of Chief Negotiator was not official until October 2004, when the president provided written notification to the Respondent. GC Ex. 5. However, regardless of whether the vice-president was acting as the Chief Negotiator when he approached the Respondent's labor relations officer in February 2004, the record supports the Judge's finding that he was an agent of the Charging Party. Tr. at 40, 71-72. As found by the Judge, this expression of interest in the CBA in February 2004 indicated that the Charging Party had a continued interest in the previously negotiated CBA and did not intend to abandon it. The record further establishes that the Respondent's labor relations officer stated at that time that she did not want to engage in negotiations over the on-base CBA until she had finished negotiating with another unit. Tr. at 44, 95. Therefore, the negotiation delays after February 2004 cannot be attributed to the Charging Party's lack of interest in the CBA. Consequently, the Judge properly determined that, given the "length of time it takes both these parties to proceed with labor relations issues," the delay between March 2003 and February 2004 was not abandonment of the CBA.

      Accordingly, we find that the preponderance of the evidence establishes that the Judge's findings are consistent with the record and deny the exception.

C.     The Judge did not err in finding that the parties had no oral agreement to begin negotiating a new CBA.

      The Respondent asserts that the Judge erred in finding that there was no agreement between the parties because the discussions between the Charging Party president and the Respondent's labor relations officer in September 2004 met the legal requirements of an oral contract. However, as the Respondent does not provide evidence or analysis to establish this assertion, it constitutes a bare assertion. NAGE, Local R5-188, 59 FLRA 696, 697 n.4 (2004). Furthermore, it is uncontested that [ v63 p261 ] there was no written agreement memorializing the intent to begin CBA negotiations from the beginning. Therefore, the Judge properly evaluated the totality of the circumstances, including witnesses' testimony, and made credibility determinations as to whether such an agreement had been created orally. See United States Dep't of Homeland Sec., Customs and Border Prot., San Diego, Cal., 61 FLRA 136, 137-38 (2005) (surrounding circumstances and intentions are considered in the absence of objective standards of contract formation).

      As noted above, the Judge found that the parties did not reach an oral agreement based primarily on her credibility determinations. Decision at 18. The Judge's findings on the demeanor of the relevant witnesses are accorded great weight, and have not been shown to be clearly erroneous. Additionally, it has been established that the Judge's credibility determinations are supported by the preponderance of the evidence. Supra at 7-8. Although the Respondent has a different interpretation of the circumstances surrounding the interactions between the Charging Party president and the Respondent's labor relations officer, this does not establish that the Judge made erroneous factual findings.

      Accordingly, we deny the Respondent's exception.

D.     The Judge did not err in finding that the Respondent presented no bargaining proposals to the Charging Party.

      The Respondent challenges the Judge's finding that it made no "effort to present any proposals to the [Charging Party]." Decision at 20 n.8. This finding was made in relation to the Judge's conclusion that the Respondent's actions did not support its argument that it was willing to negotiate a CBA with the Charging Party at any time. Id. at 20. The preponderance of record evidence supports the finding that the Respondent did not submit bargaining proposals to the Charging Party. In this regard, although one Respondent witness stated that he believed that the labor relations officer had prepared a draft CBA based on the parties oral discussions, neither the Charging Party witnesses nor the labor relations officer testified to the existence of such a document. See Tr. at 138. Further, despite its assertion that the Charging Party president agreed to bargain over an entirely new CBA, there is no evidence that the Respondent made any proposals for the terms of such rules. We note that, although the Respondent's offer of free rent in exchange for not negotiating is a proposal, it is not a proposal related to ground rules or to terms of a CBA.

      Accordingly, we find that Judge's findings are supported by the preponderance of the evidence and deny the Respondent's exception.

V.     Order

      Pursuant to § 2423.41(c) of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute (Statute), it is hereby ordered that the United States Department of the Air Force, 12th Flying Training Wing, Randolph Air Force Base, San Antonio, Texas, shall:

      1.     Cease and desist from:

           (a)     Failing and refusing to bargain in good faith with the American Federation of Government Employees, Local 1840, AFL-CIO (Union), the exclusive representative of certain employees, by refusing to bargain over the disapproved portions of the collective bargaining agreement and by insisting that the Union agree to bargain an entirely new agreement, including ground rules.

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

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

           (a)     Negotiate, with a sincere resolve to reach a collective bargaining agreement, over the disapproved portions of the NAF collective bargaining agreement with the Union.

           (b)     Post at its facilities, where bargaining unit employees represented by the Union are located, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms they shall be signed by the Commander of the 12th Flying Training Wing, 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.

           (c)     Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Dallas Region, Federal Labor Relations Authority, in writing, within 30 days of the date of this Order, as to what steps have been taken to comply. [ v63 p262 ]


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 the Air Force, 12th Flying Training Wing, Randolph Air Force Base, San Antonio, Texas, 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 with the American Federation of Government Employees, Local 1840, AFL- CIO (Union), by refusing to bargain the disapproved portions of the NAF collective bargaining agreement unless the Union agrees to negotiate an entirely new contract, including ground rules.

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

WE WILL meet with the Union at reasonable times and intervals, with a sincere resolve to reach an agreement, on the NAF collective bargaining agreement.

      _______________________
               Agency

Dated: ________ By: _________________________

                     (Signature) (Commander)

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 questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Dallas Regional Office, whose address is: Federal Labor Relations Authority, 525 South Griffin Street, Suite 926, LB-107, Dallas, Texas 75202-1906, and whose telephone number is: 214-767- 6266.


Separate Opinion of Member Beck

      For the limited purpose of resolving this case, and to avoid an impasse in the unusual circumstances in which the Authority has only two Members, I have agreed to review the ALJ's factual findings in this specific case under a "preponderance of the evidence standard." This is, in effect, a de novo review. I agree, in this regard, that the Judge's factual findings are supported by a preponderance of the evidence. However, I believe the correct standard for the Authority to apply when reviewing an ALJ's factual findings is the more deferential "substantial evidence in the record" standard.

      Our Statute permits the Members of the Authority to conduct an unfair labor practice hearing themselves or to delegate the responsibility for conducting such a hearing -- and the concomitant responsibility of weighing the evidence and making findings of fact -- to an ALJ. 5 U.S.C. § 7118(a)(6). Long ago, the Authority delegated to its ALJs the responsibility for conducting unfair labor practice hearings, weighing the evidence, and making findings of fact. See 5 C.F.R. §§ 2423.30 - 2423.34. The ALJ, as the Authority's delegee, applies a "preponderance of the evidence" standard when weighing the evidence and determining whether the General Counsel has proved that an unfair labor practice was committed. 5 U.S.C. § 7118(a)(7); 5 C.F.R. § 2423.32.

      The Statute is silent on the question of what standard is to be applied by the Members when they review the factual findings of an ALJ. Consequently, we turn to the Administrative Procedure Act (APA) for guidance. The APA states, in pertinent part:

On appeal from or review of the initial decision [by an ALJ], the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule.

5 U.S.C. § 557(b) (emphasis added). In other words, it is presumed that the Authority will engage in plenary review of an ALJ's findings, unless the Authority has promulgated a rule or otherwise provided "notice" to the parties and the public that it will apply a different standard of review. See Vineland Fireworks Co., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 544 F.3d 509, 514-15 (3d Cir. 2008) (explaining that, through the APA, Congress permits an administrative agency to choose whether it will limit its review of ALJ findings or exercise de novo review).

      [ v63 p263 ] While some administrative agencies engage in a de novo review of their ALJs' factual findings (such as the National Labor Relations Board, see, Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enf'd, 188 F.2d 362 (3d Cir. 1951)), some others have elected to apply the more deferential "substantial evidence" standard. For example, while the Commodity Futures Trading Commission is statutorily required to apply a "weight of [the] evidence" standard when adjudicating allegations of market manipulation or fraud, 7 U.S.C. § 9(4), it "does not review de novo factual findings made by [its] ALJ" and "is under no obligation to undertake its own fact-finding process in reviewing the ALJ's decision." Dohmen-Ramirez v. Commodity Futures Trading Comm'n, 837 F.2d 847, 856 (9th Cir. 1988). The Department of Labor has promulgated a regulation limiting its Administrative Review Board to reviewing ALJ decisions under the Surface Transportation Assistance Act for "substantial evidence on the record considered as a whole." 29 C.F.R. § 1978.109(c)(3); see also, BSP Trans, Inc. v. United States Dep't of Labor, 160 F.3d 38 (1st Cir. 1998) (Administrative Review Board reviews ALJ factual findings using "substantial evidence" standard; court reviewing the Board's decision then applies same standard to ALJ's factual findings).

      Through its past decisions, the Authority has provided the "notice" contemplated in 5 U.S.C. § 557(b) that it will apply a "substantial evidence in the record" standard. See, e.g., United States Dep't of Justice, Fed. Bureau of Prisons, Fed. Corr. Inst., Elkton, Ohio, 61 FLRA 515, 517 (2006) ("When reviewing a judge's factual findings, the Authority reviews the record to determine whether those factual findings are supported by substantial evidence in the record as a whole." (citing United States Dep't of Transp., 48 FLRA 1211, 1215 (1993))); United States Dep't of Homeland Sec., Border & Transp. Directorate, Bureau of Customs & Border Prot., 59 FLRA 910, 913 (2004) (same); United States Dep't of Justice, Executive Office for Immigration Review, N.Y., N.Y.,, 61 FLRA 460, 465 (2006) ("we find that substantial evidence in the record supports the [j]udge's findings"); United States Dep't of Transp., FAA, 59 FLRA 491, 493 (2003) ("there is substantial evidence in the record supporting the [j]udge's finding").

      The Authority is legally permitted to use a "substantial evidence in the record" standard when reviewing ALJ findings of fact, and it has stated in previous decisions that it will apply this standard. Further, as a practical matter, this is the appropriate standard to use when the Authority acts as an appellate tribunal rather than the initial trier-of-fact. For these reasons, we should continue to apply this standard when we are called upon to review the factual findings of our ALJs.


File 1: Authority's Decision in 63 FLRA No. 93 and Opinion of Member Beck
File 2: ALJ Decision


Footnote # 1 for 63 FLRA No. 93 - Authority's Decision

   Member Beck's separate opinion is set forth at the end of this decision.


Footnote # 2 for 63 FLRA No. 93 - Authority's Decision

   As relevant here, the ground rules provide as follows:

It is understood that both parties have the full authority at any negotiating session to commit to a mutually agreeable position. The articles agreed upon will become contractually binding when signed by the Union President, ratified by the Union membership, and signed by the 12th Support Group Commander and approved by [the Department of Defense (DOD)].

Decision at 3 (citations omitted).


Footnote # 3 for 63 FLRA No. 93 - Authority's Decision

   We note that this exception mischaracterizes the Judge's decision, as the Judge did not find that the Charging Party "agreed to begin negotiations on an entirely new contract, beginning with new ground rules[.]" Exceptions at 1. We also note that, in conjunction with this exception, the Respondent describes several cases in which the Authority found that an agency did not violate the duty to bargain in good faith. Id. at 3-9. However, as the Respondent makes no legal arguments relating these cases to the alleged deficiencies in the Judge's decision, they provide no support for the exception. See Int'l Assoc. of Machinists & Aerospace Work