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54:0630(68)CA - - FDA, Northeast and Mid-Atlantic Regions & AFGE Council No. 242 - - 1998 FLRAdec CA - - v54 p630

[ v54 p630 ]
The decision of the Authority follows:

54 FLRA No. 68










(Charging Party)


(53 FLRA 1269 (1998))



July 31, 1998


Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members(1)

I. Statement of the Case

This case is before the Authority on the Respondent's request for reconsideration of the Authority's decision in U.S. Food and Drug Administration, Northeast and Mid-Atlantic Regions and American Federation of Government Employees, AFL-CIO, Council No. 242, 53 FLRA 1269 (1998) (FDA).(2) In that decision, the Authority determined that the Respondent had committed an unfair labor practice. The General Counsel filed an opposition to the request for reconsideration. For the reasons that follow, we deny the Respondent's request.

II. Background and Authority Decision in FDA

The Authority held in FDA that the Respondent had violated sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by insisting to impasse that the parties negotiate two separate collective bargaining agreements for employees in a single collective bargaining unit who were assigned to two different geographic regions. This decision was preceded by U.S. Department of Health and Human Services, U.S. Food and Drug Administration, Northeast and Mid-Atlantic Regions, 48 FLRA 1008 (1993) (HHS-I), in which the Authority held that the Respondent's reorganization of these same regions did not render the preexisting consolidated bargaining unit inappropriate, even though, after the reorganization, the bargaining unit straddled two of the Respondent's new regions. Despite the Authority's determination in HHS-I, the Respondent continued to insist that each region was a separate entity that would bargain a separate agreement.

The Authority determined that the negotiation of two separate collective bargaining agreements with a union representing one bargaining unit was a permissive subject of bargaining. The Authority set out the well-established rule that it is an unfair labor practice for a party to bargain to impasse over a permissive subject. FDA, 53 FLRA at 1274. The Authority noted that the Administrative Law Judge had found that the parties were at "a preliminary impasse" on this subject. Id. at 1278 (quoting Judge's Decision at 15). The Authority examined the record and concluded that the Respondent's insistence on two collective bargaining agreements had caused an impasse in negotiations. The Authority applied the rule that a party has a right not to negotiate over permissive subjects of bargaining and held that, by making the negotiation of two contracts a precondition to bargaining, the Agency had improperly bargained to impasse on a permissive subject. Id. at 1275-80.

Further, the Authority rejected the Respondent's claim that its Northeast and Mid-Atlantic Regions are separate employers that should be permitted to bargain separately under the "multi-employer" doctrine. Id. at 1276. The Authority held that an agency did not have the right to create separate representation within one certified bargaining unit. Id.

Accordingly, the Authority concluded that the Respondent had violated section 7116(a)(1) and (5) of the Statute by insisting that the parties negotiate two agreements covering a single bargaining unit. To remedy the violation, the Authority ordered the Respondent to bargain in good faith, and to cease and desist from insisting on two separate collective bargaining agreements.

III. Positions of the Parties

A. Respondent

The Respondent makes three arguments that, it asserts, constitute "extraordinary circumstances" entitling it to reconsideration and the reversal of the earlier decision.

First, the Respondent argues that the Authority has improperly determined that the parties' bargaining was at an impasse. The Respondent asserts that the Authority made factual findings inconsistent with the conclusions of the Judge and that these findings deprived it of the right to introduce evidence. The Respondent also asserts that applicable regulations dictate that an impasse cannot be found until the parties have used "mediation or other voluntary arrangements for settlement." 5 C.F.R. 2470.2(e).(3) According to the Respondent, the underlying decision is inconsistent with Authority precedent that states that no impasse may be found unless the parties have attempted to settle their differences through mediation or other means. Request for Reconsideration (Request) at 3 (citing Sport Air Traffic Controllers Organization (SATCO) and Air Force Flight Test Center (AFFTC) Edwards Air Force Base, California, 52 FLRA 339, 349 (1996)).

Second, the Respondent asserts that the Authority's holding that Respondent's regions may not be considered separate employers under the "multi-employer doctrine" is "invalid" because the Authority has departed, "without a reasoned explanation," from its holding in Immigration and Naturalization Service, 16 FLRA 80 (1984) (INS). Request at 9-10. The Respondent maintains that its regions are separate employers that decided to bargain separately "after having done the things multi-employers are required to do to achieve this end." Id. at 9.

Third, the Respondent argues that the Authority has misapplied the term "agency." The Respondent maintains that, since the date of the Authority's decision in FDA, an intervening decision by the U.S. Court of Appeals for the Second Circuit demonstrates that the Authority has misunderstood the term. Id. at 17 (citing FLRA v. U.S. Department of Justice, 125 F.3d 106 (2d Cir. 1997) (DOJ)). According to the Respondent, this case requires the Authority to recognize that the term "agency" refers to the "department or parent agency of the subordinate unit." Id. The Respondent also reiterates its earlier argument that the inapplicability of the term "agency" to the Respondent or its regions is illustrated in Hancock v. Egger, 848 F.2d 87 (6th Cir. 1988), a civil rights case in which the U.S. Court of Appeals for the Sixth Circuit found that the Internal Revenue Service did not meet the definition of "agency" under 42 U.S.C. § 2000e-16(c). Request at 18-19.

B. General Counsel

The General Counsel argues that the definition of "impasse" relied on by the Respondent is found in the regulations that apply only to the Federal Service Impasses Panel. The General Counsel maintains that neither this regulation nor the Authority's case law requires that parties seek mediation before the Authority will find an impasse in the context presented by this case. According to the General Counsel, "[i]n determining whether an impasse has been reached, the Authority traditionally examines the parties' conduct from the inception of negotiations." Opposition at 3 (citing U.S. Department of the Air Force, Space Systems Division, Los Angeles Air Force Base, California, 38 FLRA 1485 (1991)).

The General Counsel also argues that there is no multi-employer in this case: "[a]ll that exists here is multi-location bargaining with a single employer[.]" Opposition at 3. Finally, the General Counsel argues that the Respondent's claim that it is not an "agency" ignores the fact that "executive agencies are routinely divided into separate 'agencies' for purposes of collective bargaining[.]" Id. at 4.

IV. Analysis and Conclusions

Under section 2429.17 of the Authority's Regulations, a party seeking reconsideration bears the heavy burden of establishing that extraordinary circumstances exist to justify overturning this decision. U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 50 FLRA 84, 86-87 (1995) (Scott Air Force Base). Scott Air Force Base identified a limited number of situations in which extraordinary circumstances have been found to exist, including situations where a moving party has established that: (1) an intervening court decision or change in the law affected dispositive issues; (2) evidence, information or issues crucial to the decision had not been presented to the Authority; or (3) the Authority erred in its remedial order, process, conclusion of law, or factual finding. Extraordinary circumstances have also been found where the moving party has not been given an opportunity to address an issue raised sua sponte by the Authority in its decision. Id. at 87. The request for reconsideration provides the moving party with an opportunity to respond substantively to issues raised sua sponte by the Authority. U.S. Department of Commerce v. FLRA, 7 F.3d 243 (D.C. Cir. 1993) (Department of Commerce).

The Respondent contends that the Authority erred as a matter of law for three reasons which, if supported, would establish extraordinary circumstances to warrant reconsideration and reversal of the Authority's decision. The Respondent's arguments, however, are based on fundamental misconceptions of the law that applies to this case.

A. The Respondent Created an Impasse in Bargaining

The Respondent asserts that reconsideration is warranted because the Authority sua sponte determined that: (1) the issue of whether a proposal that two contracts be negotiated for one bargaining unit is a permissive subject of bargaining; and (2) the Respondent had insisted on this permissive subject to impasse. The Respondent asserts that the Authority should not have made a finding of impasse because an impasse was "not found by" the Judge and because the Respondent did not have the opportunity to explain its position and present mitigating evidence. Request at 5, 6. The Respondent also asserts that the Authority improperly failed to follow the definition of "impasse" found in the regulations pertaining to the Federal Service Impasses Panel (the Panel), 5 C.F.R. § 2470.2(e). Id. at 3-9.

Contrary to the Respondent's claim that the Authority raised these matters sua sponte, issues relating to permissive bargaining were referenced by the Judge and are included in the primary case cited by the General Counsel. FDA, 53 FLRA at 1292, n.5; Department of Health and Human Services, Social Security Administration, 6 FLRA 202, 204, n.2 (1981) (HHS-II). Nevertheless, the Respondent is correct that neither the Judge's decision nor the parties' filings on appeal focused on the question of whether the subject matter at issue was a permissive or mandatory subject of bargaining. See FDA, 53 FLRA at 1275. Accordingly, we address these issues on reconsideration.

1. The Authority Need Not Adopt the Findings of the Judge or Take Additional Evidence

The Respondent's objection that the Authority may not make factual findings "not found by" the Judge ignores basic principles of administrative law. The Administrative Procedure Act provides that "[o]n appeal from or review of the initial decision [of a Judge], 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); see 5 C.F.R. 2423.41(b) (on exceptions, Authority will affirm, reverse, or "dispos[e] of the matter as is otherwise deemed appropriate"). An agency must consider a Judge's initial decision and the evidence on which it was based, but that decision is "not binding upon the agency[.]" 4 Jacob Stein, et al., Administrative Law, (1998) at 36-15; citing Federal Communications Commission v. Allentown Broadcasting Corp., 349 U.S. 358 (1955); see also National Labor Relations Board v. P*I*E Nationwide, Inc., 923 F.2d 506, 513 n.7 (7th Cir. 1991).

Further, our conclusion that the Respondent's conduct constituted a violation of the Statute did not involve reweighing evidence found by the Judge. The Judge found that the parties had reached a "preliminary impasse" in bargaining over the number of agreements that would be executed. FDA 53 FLRA at 1293. However, because the Judge considered the matter to concern a mandatory subject of bargaining, he concluded that such an impasse would not constitute a violation of the Statute, absent "bad faith" on the part of the Respondent. Id. at 1292. We determined that the subject at issue was a permissive subject of bargaining and, therefor, that the Respondent had violated the Statute by insisting to impasse on their position. Id. at 1278-79. Our decision overturning the proposed decision of the Judge was thus a result of our different view of the legal standard to be applied, rather than a disagreement with particular factual findings of the Judge.

With respect to the Respondent's claim that the Authority's sua sponte finding that the parties were at impasse deprived it of an opportunity to explain its position or present mitigating evidence, the request for reconsideration is such an opportunity. See Department of Commerce, 7 F.3d at 245. In its request, the Respondent does not point to any facts that the Authority should have taken into account in determining whether the parties were at impasse, and does not dispute any specific factual finding made in the decision. Further, on the issue of permissive bargaining, the Respondent does not assert any specific legal arguments, other than its contention, discussed below, that the Authority's regulations require the parties to submit a dispute to mediation before it can be considered to be at impasse. Finally, the Respondent has not requested additional briefing or factfinding on these issues, and there is no reason to believe that such procedural steps would affect the result in the case or would justify further delay in this proceeding.

2. The Definition of Impasse Contained at Section 2470.2(2) of the Regulations Does Not Apply

The Respondent's second point is that the Authority ignored 5 C.F.R. § 2470.2(e), which defines "impasse" as the inability to reach agreement, notwithstanding negotiation and "the use of mediation or other voluntary arrangements for settlement." See supra note 2. The Respondent argues that, because mediation of the dispute over the number of bargaining agreements that would be negotiated was never sought, there could not have been an impasse on this matter.

The definition of "impasse" relied on by the Respondent appears in the regulations of the Federal Service Impasses Panel (the Panel). The Panel uses this definition to determine whether it should assert jurisdiction over an impasse. See U.S. Department of Justice, Immigration and Naturalization Service, Chicago District Office, Chicago, Illinois, 52 FLRA 686, 688 (1996). The reference in the regulation to third party intervention prior to impasse implements Section 7119(b) of the Statute, which states that parties should seek to resolve their disputes through voluntary arrangements, such as mediation, before seeking the assistance of the Panel.

The application of the Panel's regulation is, however, limited to issues before that body. Section 2470.1 states that, "the regulations contained in this subchapter are intended to . . . prescribe procedures and methods which the Federal Service Impasses Panel may utilize in the resolution of negotiation impasses when voluntary arrangements, including the services of the Federal Mediation and Conciliation Service or any other third-party mediation fail to resolve the dispute." Nothing in Part 2470 suggests that the definition contained in section 2470.2(e) serves a purpose broader than that described in the regulations: assisting in establishing the jurisdiction of the Panel over a particular case.

In an unfair labor practice case concerning the duty to bargain, resort to third party mediation is not a prerequisite to a finding of impasse. Section 2470.2(e) of the Panel's regulations simply does not apply in this context. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 16 FLRA 217, 230 (1984)(impasse exists and agency may unilaterally implement change in working conditions where parties fail to reach agreement after full negotiation and union has not requested mediation or Panel intervention).(4)

Further, our decision in this case does not alter the Panel's regulatory definition or its application in any way. That is, Section 2407.2(e) continues to apply to the determination of Panel jurisdiction, as it has in the past. The question of whether there is an impasse in bargaining that constitutes an unfair labor practice, however, continues to be a matter not of regulatory definition, but of case-by-case interpretation. Because we do not alter the Panel's definition or its interpretation, there is no foundation for the Respondent's assertion that we have engaged in "secret rulemaking."

Moreover, the Respondent has not provided any authority that contradicts our observation that "the concept of 'impasse' may have somewhat different meanings in different contexts." FDA, 53 FLRA at 1277. The concept of impasse that the Authority relied on in this case is supported by both Authority and private sector case law. Id. ("a situation where a party insists on its position on such a subject as a precondition to bargaining"). In other ULP contexts, the Authority has discussed impasses in bargaining in ways that indicate that a variety of factors, not limited to the Panel's definition, are important in this determination. See American Federation of Government Employees, AFL-CIO, Council of Marine Corps Locals and Department of the Navy, United States Marine Corps, 44 FLRA 543, 548 (1992) ("[an impasse is that point in negotiations at which the parties are unable to reach agreement."); Department of Defense, Department of the Navy, Naval Ordnance Station, Louisville, Kentucky, 17 FLRA 896, 897 (1985) (determination of an impasse requires consideration of the parties' entire conduct since the inception of their negotiations); accord Davis-Monthan Air Force Base, Tucson, Arizona, 42 FLRA 1267, 1278 (1991).

In sum, the Authority's determination that the parties were at impasse in this case is consistent with the standards it has used in past ULP proceedings. The Respondent has provided no precedent or reason demonstrating that the Authority has, or should, use the definition of impasse found in 5 C.F.R. § 2470.2(e).

B. The Respondent is not a "multi-employer" entitled to bargain separate contracts

The Respondent asserts that the Authority "departed from its prior cases without a reasoned explanation," because the Authority failed to apply the concept of "multi-employer" to the Respondent. Request at 9, citing INS, 16 FLRA 80.

The Respondent's position is premised on a fundamental misconception about the nature of multi-employer bargaining in the private sector and under INS. In the private sector, multi-employer bargaining units are established as voluntary associations of independent employers or unions that join together for purposes of collective bargaining. See Hardin, Developing Labor Law 511 (3d Ed. 1992). The Respondent's bargaining unit at issue here, however, is not a voluntarily created association of employers or unions. Rather, it was created in 1979 as a consolidation of several districts represented by the same Union within Respondent's "New York Field Office." DHHS, 48 FLRA at 1010. This consolidation did not create a multi-employer bargaining unit; it created a single bargaining unit comprised of all employees of a single field office. Respondent's decision to reorganize its field structure in 1987 does not change the initial character of this bargaining unit and transform it into a "multi-employer" unit.

Respondent's bargaining unit and bargaining history also differ in critical respects from the situation presented in INS, where the Authority adopted multi-employer principles analogous to those used in the private sector. In INS, the agency and two AFGE Councils representing separate bargaining units within INS had a history of negotiating a single contract for both bargaining units. Renegotiation of this contract halted because a "question concerning representation (QCR)" arose involving one of the Councils.(5) The Authority held that INS was not obligated to continue bargaining with the second Council, in which there was no pending QCR. The Authority held that parties to a "multi-unit or multi-employer" bargaining arrangement may unilaterally withdraw from the arrangement prior to the commencement of bargaining, but may only withdraw during bargaining with the consent of all parties.(6) As bargaining had commenced and INS had not consented to dissolve the multi-unit arrangement and bargain separately with the second Council, that second Council could not unilaterally end the bargaining arrangement.

The Respondent analogizes its situation to INS, asserting that it is seeking to withdraw from "multi-employer" bargaining prior to the commencement of negotiations. The flaw in the Respondent's position is that the Respondent's prior bargaining arrangement did not involve a critical feature of multi-employer bargaining under INS: "multi-unit negotiations." See INS, 16 FLRA at 85. The employees in this case are all included in a single, consolidated bargaining unit, not a voluntary association of separate bargaining units.

Moreover, the underlying rationale of the INS decision demonstrates that, although employers and unions may choose to enter into combinations of units or employers for bargaining, they retain the right to withdraw from such arrangements and bargain separately. INS preserved multi-unit arrangements, "while ensuring that each of the parties at the level of exclusive recognition retains the right in appropriate circumstances to require negotiations at [the unit] level with respect to conditions of employment affecting the bargaining unit employees." Id.

Thus, rather than support the position of the Respondent, INS confirms the basic holding of this case -- that parties have a right to "require negotiations" at the level of exclusive recognition. Id. Here, there has been and remains only one bargaining unit in the Respondent's two regions and the Union may "require" negotiations "at that level."

Rather than disengage from a multi-employer bargaining arrangement, the Respondent here is attempting to, in effect, unilaterally split one unit into separate units. Unilateral action of this sort is not permitted. Cf., e.g., Boise Cascade Corporation v. NLRB, 860 F.2d 471, 475 (D.C. Cir. 1988) ("[o]nce an appropriate bargaining unit has been established, the statutory interest in stability and certainty in bargaining obligations requires adherence to that unit" and the unit may not be unilaterally modified).

We reject the Respondent's argument that its refusal to bargain one contract is supported by principles of multi-employer bargaining.

C. FDA is not undermined by intervening case law

The Respondent argues that intervening case law demonstrates that the Respondent is not an "agency", because "the term Agency does not apply to subordinate elements of an executive department but only to entities described as an executive department, an independent establishment or a Government corporation." Request at 17 (citing, DOJ, 125 F.3d 106). DOJ is one of a series of recent cases concerning the status of Inspector General investigators in investigative meetings.(7) In DOJ, the court held that for purposes of evaluating whether an official is a "representative of the agency," the term "agency" means the "department or parent agency employing the interrogated employees. . . ." Id. at 112.

As the court in DOJ simply adopted the view of the "agency" representation used by the Third Circuit in Defense Criminal Investigative Service v. FLRA, 855 F.2d 93, 98 (3d Cir. 1988), DOJ is not an "intervening court decision or change in the law" warranting reconsideration under Scott Air Force Base. DOJ, 125 F.3d at 117.

In any event, the term "agency" does not define the scope of the Respondent's bargaining obligations. The Statute explicitly requires the Authority to determine appropriate bargaining units "on an agency, plant, installation, functional, or other basis[.]" 5 U.S.C. 7112(a). Thus, as we noted in FDA, 53 FLRA at 1276, the Statute contemplates that executive agencies will be subdivided for bargaining purposes. The collective bargaining obligation set out in the Statute requires that an agency provide "appropriate representatives" to bargain with "any exclusive representative in any appropriate unit in the agency[.]" 5 U.S.C. 7114(a)(4). These provisions demonstrate that the Statute requires an agency to bargain at the "unit" level, and that the broad definition of the term "agency" does not affect that obligation. See 5 U.S.C. 7103(a)(12) ("collective bargaining" is "an obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency[.]")

Finally, the Respondent asserts that we should apply case law holding that the term "agency" under Title VII of the Civil Rights Act does not include component parts of an agency. Request at 18, citing Hancock v. Egger, supra. However, unlike Title VII, the Statute contains no language analogous to the language at issue in Egger, which specified the person to be sued. See 42 U.S.C. § 2000e-16(c) ("the head of the . . . agency shall be the defendant"). Further, in asserting that the Respondent is not an "agency," FDA has not asserted that the Department of Health and Human Services, rather than FDA, should have been served with the complaint in this unfair labor practice case. Rather, the Respondent argues that there is no agency involved in this case, apparently on the theory that bargaining should then take place among its regional "employers." This construction of the statute is unsupported.

VI. Order

The Respondent's request for reconsideration is denied.

(If blank, the decision does not have footnotes.)

1. Member Cabaniss did not participate in the original decision.

2. The Respondent also requested that the Authority stay its decision pending reconsideration. The Authority issued an order denying the Respondent's motion for a stay on April 29, 1998. The Respondent filed a subsequent request for reconsideration of the Authority's denial of its request for a stay. As we here deny the request for reconsideration, the subsequent motion concerning the stay is dismissed as moot.

3. Section 2470.2(e) of the Federal Service Impasses Panel's regulations states:

The term impasse means that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement.

4. Several initial administrative law judge decisions adopted by the Authority have referred to the Panel's definition of impasse in the course of evaluating whether bargaining impasses existed. See U.S. Department of the Air Force, Space Systems Division, Los Angeles Air Force Base, California, 38 FLRA 1485, 1487, 1501 (1991); U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116, 132 (1982). These decisions do not, however, hold that the definition of impasse in the Panel regulations controls a finding of impasse for purposes of an unfair labor practice relating to bargaining. To the extent that they imply that the Panel definition is dispositive in assessing such ULP's, we clarify that it is not.

5. As a general rule, agencies are required to maintain existing conditions of employment while a QCR is pending. See United States Department of Justice, Immigration and Naturalization Service, 9 FLRA 253, 255 (1982); enforcement denied on other grounds, 727 F.2d 481 (5th Cir. 1984); see also 5 C.F.R. § 2422.34(a).

6. This is consistent with the approach in the private sector. See Hardin, Developing Labor Law 514-15 (3d Ed. 1992); Retail Associates, Inc., 120 NLRB 388, 395 (1958).

7. See Defense Criminal Investigative Service v. FLRA, 855 F.2d 93, 98 (3d Cir. 1988); and FLRA v. National Aeronautics and Space Administration, 120 F.3d 1208, 1212-13 (11th Cir. 1997); U.S. Department of Justice v. FLRA, 39 F.3d 361 (D.C. Cir. 1994)