[ v55 p951 ]
55 FLRA No. 157
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
FORT WORTH, TEXAS
(Respondent)
and
PROFESSIONAL AIRWAYS SYSTEM
SPECIALISTS
(Charging Party)
DA-CA-70646
______
DECISION
September 30, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. No opposition was filed to the Respondent's exceptions.
The amended complaint alleges that Respondent violated sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it repudiated a Memorandum of Understanding (MOU) that required Respondent to permit representatives of the Charging Party to participate in interview panels. The Judge concluded that the Respondent had 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 to the extent consistent with this decision. In particular, we find that the complaint, as amended, is not barred under section 7116(d) of the Statute, and that the Judge did not abuse his discretion in permitting the amendment of the complaint and in denying the Respondent's motion to postpone the hearing. In addition, we find that the General Counsel established that the Respondent repudiated the parties' MOU, as alleged in the amended complaint. Finally, under section 2429.5 of the Authority's Regulations, we do not consider the Respondent's final exception asserting that the MOU interferes with management rights or relates to a permissive subject of bargaining, because that exception is based on issues that could have been, but were not, raised before the Judge.
II. Background and Judge's Decision
A. Background
In 1995, the Respondent and the Charging Party at Respondent's regional Lone Star facility entered into a local MOU. [n1] The MOU, as amended in 1996, provided that a Charging Party representative may be included on panels that conduct selection interviews for details, temporary assignments over 90 days, and position vacancies. [n2] In July 1997, the Charging Party filed a ULP charge, alleging that the Respondent failed to comply with the provisions of the MOU by filling a particular position without convening an interview panel.
In a letter to the Union's National President dated October 1, 1997, an Agency official in Washington, D.C. stated that Union representatives would no longer be allowed to participate in the selection process by serving as members of either rating and ranking panels or interview panels for any Agency positions nationwide. This decision was restated in an October 7 memorandum issued to all Agency Regional Airway Facilities Division Managers. Shortly thereafter, the Respondent's representative informed the Charging Party's Lone Star representative of the change in policy.
On October 22, 1997, the Union filed a national grievance objecting to the Agency's decision to exclude Union representatives from the selection process. The grievance alleged that the Agency's decision to exclude the Union from the selection process was contrary to past practice and an Agency regulation.
In April 1998, the General Counsel issued a complaint, alleging that the Respondent violated 5 U.S.C. § 7116(a)(1) and (5) of the Statute by failing to comply with the parties' MOU on, and since, July 1, 1997. During the pre-hearing conference 8 days before the hearing, the General Counsel moved to amend the complaint to change the date of the alleged repudiation from July [ v55 p952 ] 1, to October 1, 1997. The General Counsel explained, in its motion, that October 1 "is the date that the Respondent actually presented the Charging Party with written notification of its intention to disallow [Charging Party] representatives from serving on interview panels[.]" Exceptions, Attachment 8 at 1. The Respondent opposed the motion, asserting that the national grievance barred the amendment and that the amended complaint was not sufficiently related to the original charge. The Respondent also filed a motion to postpone the hearing.
B. Judge's Decision
As a preliminary matter, the Judge rejected the Respondent's claim that because a national grievance had been previously filed over the same matter the amended complaint should be dismissed under section 7116(d) of the Statute. The Judge stated that the Respondent's arguments were "misplaced" because section 7116(d) does not address amendments to complaints. Judge's Decision at 4. The Judge also stated that the parties and the theories in the grievance and the amended complaint were different. He found that the Agency's national office, against whom the national grievance was filed, was not a named respondent in the amended complaint, and that the matter at issue in the amended complaint was purely local, involving only the Lone Star facility, the local Charging Party, and the local MOU.
The Judge denied the Respondent's motion to postpone the hearing. The Judge found that the ULP involved only a local matter and that the amendment to the complaint did not expand the scope of the hearing to involve a national issue. Because he found that the scope of the hearing had not been expanded, the Judge concluded that the Respondent did not require any additional time to prepare. See id. at 4-5.
Addressing the Respondent's claim that the amendment to the complaint was not proper because the charge did not encompass the matters alleged in the amended complaint, the Judge found that the amendment to the complaint was permissible. According to the Judge, a complaint is proper if the allegations set forth in it bear a relationship to the charge, and are closely related to the events complained about in the charge. Applying that standard here, the Judge found that the issue in both the charge and the complaint was the alleged repudiation of the MOU; the repudiation formed the basis for the alleged violation in both the original complaint and the amended complaint; and the Respondent was put on general notice that it had allegedly violated the Statute by repudiating a local MOU concerning the use of interview panels. See id. at 6-7.
Turning to the merits of the claim that the Respondent repudiated the MOU, the Judge found that the MOU clearly provided that representatives of the Charging Party would be permitted to sit on at least some interview panels in their representative capacity. The Judge determined that the Respondent's "blanket directive of October 1997, that no [Charging Party] representative would be allowed to sit on an interview panel in a representational capacity" was "a clear and patent breach of the . . . MOU." Id. at 9. The Judge stated that it was undisputed that since the MOU was amended in 1996, the Respondent included representatives of the Charging Party on interview panels. The Judge found that "sometime in October 1997, however, [the] Respondent informed [the Charging Party's] representatives at the Lone Star [facility] that [Charging Party] representatives would no longer be permitted to sit on interview panels." Id. As the representatives of the Charging Party were subsequently not permitted to participate on interview panels, the Judge determined that the Respondent breached the MOU.
The Judge also determined that that breach went to the heart of the MOU. Specifically, the Judge found that the MOU "existed simply to provide a means to enable [Charging Party] representatives to sit on interview panels" and, thus, the Respondent's prohibition against such an act "clearly negates" the MOU. Id.
Based on these findings, the Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute by repudiating the MOU. [n3] To remedy the violation, the Judge recommended that the Authority order the Respondent to rescind the October 1, 1997 ban on Charging Party representatives participating in employee interview panels, and post a notice to that effect. [ v55 p953 ]
III. Respondent's Exceptions [n4]
The Respondent excepts to the Judge's decision on four grounds.
First, the Respondent asserts that the Judge erred in concluding that the amended complaint was not barred by the national grievance. The Respondent claims that section 7116(d) of the Statute does not draw a distinction between filing a charge and amending a complaint, as the Judge found. The Respondent further argues that section 7116(d) applies whenever the aggrieved party is the same, and that the national Union is the aggrieved party in both the ULP and grievance, because recognition is at the national level. The Respondent also asserts that the requirement that the issues in both proceedings be identical is met, because the basis for both the grievance and the ULP is the Agency's October 1997 decision to exclude all Union representatives from all interview panels.
Second, the Respondent asserts that the Judge erred in finding that the amendment to the complaint to change the date of the alleged repudiation did not prejudice the Respondent. The Respondent argues that the original complaint involved only the single failure to convene an interview panel, not the October 1997 decision to exclude all Charging Party representatives from all interview panels. According to the Respondent, the arguments, witnesses, and documents necessary to defend the original complaint were different than those necessary to defend the amended complaint.
Third, the Respondent argues that the Judge erred in finding that the Respondent repudiated the MOU on October 1, 1997. According to the Respondent, the General Counsel has the burden of proving every allegation in the complaint, including the specific date of the alleged violation. Respondent asserts that there is no evidence that local management presented the Charging Party with written notification on October 1, 1997 of its intention to disallow Charging Party representatives from serving on interview panels. According to the Respondent, the Charging Party's representative who filed the charge was not informed of the change until some time after October 7, 1997.
Finally, the Respondent argues that it should not be required to continue a practice that interferes with management rights set out in section 7106(a) of the Statute. According to the Respondent, the MOU was inconsistent with management's right to select employees and, thus, a refusal to comply with the MOU does not violate the Statute. In this connection, the Respondent states that the Authority will not order a status quo ante remedy where management discontinues an illegal practice. Additionally, the Respondent claims that the participation of Charging Party representatives on interview panels convened for the purpose of filling non-bargaining unit positions is not a condition of employment because it is not related to the employment of bargaining unit employees. The Respondent argues that where management elects to negotiate over the filling of non-bargaining unit positions -- a permissive subject of bargaining -- and reaches an agreement with no specific duration on such matters, it is permissible for an agency to advise a union that it will no longer comply with that agreement.
The Respondent requests that the Authority dismiss the complaint and if not, set aside the status quo ante remedy and direct the Respondent to engage in post-implementation bargaining only.
IV. Analysis and Conclusions
A. The Amended Complaint Is Not Barred Under Section 7116(d) of the Statute
Section 7116(d) of the Statute provides that issues that may be raised under a negotiated grievance procedure or as an unfair labor practice may, in the discretion of the aggrieved party, be raised under either procedure, but not under both procedures. The determination of whether a ULP charge is barred by an earlier-filed grievance requires examining whether "the ULP charge arose from the same set of factual circumstances as the grievance and the theory advanced in support of the ULP charge and the grievance are substantially similar." U.S. Department of the Army, Army Finance and Accounting Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 38 FLRA 1345, 1351 (1991) (Army Finance), petition for review denied sub nom. American Federation of Government Employees, AFL-CIO, Local 1411 v. FLRA, 960 F.2d 176, 177-78 (D.C. Cir. 1992) (Local 1411). Only if both requirements are satisfied is a subsequent ULP charge barred by a former grievance.
With respect to whether the theory advanced in support of a ULP charge and a grievance are substantially similar, the Authority has held, in a variety of circumstances, that a ULP alleging a violation of the Statute raises a sufficiently distinct theory from a grievance alleging a violation of a collective bargaining agreement, such that section 7116(d) does not preclude the later proceeding. See, e.g., U.S. Department of Vet- [ v55 p954 ] erans Affairs, Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 392-93 (1996) (VAMC, North Chicago); American Federation of Government Employees, National Council of EEOC Locals No. 216 and U.S. Equal Employment Opportunity Commission, 49 FLRA 906, 914-15 (1994) (EEOC). See also Local 1411, 960 F.2d at 178. For example, in VAMC, North Chicago, the Authority found that a ULP charge alleging that the agency implemented a policy denying cash performance awards without providing the union with notice and an opportunity to bargain was not barred by a prior grievance alleging that the agency's denial of performance awards was not fair and equitable, as required by the parties' collective bargaining agreement. 52 FLRA at 392-93.
In this case, the grievance and the ULP rest on different legal theories. Specifically, the issue in the grievance is whether the Agency's unilateral decision to exclude the Union from the selection process nationwide is "contrary to well established past practice and AF Order 3330.1." Exceptions, Attachment 7. In contrast, the issue in the amended ULP complaint is whether the Respondent's unilateral decision to exclude the Charging Party from interview panels at the local level is a repudiation of the parties' MOU and, for this reason, a violation of the Statute. The grievance does not assert that the Agency violated the Statute, and the charge and amended ULP complaint do not include any mention of a violation of a past practice or an Agency order.
Allegations involving violations of the Statute present distinct legal theories from those alleging violations of past practice or an agency order. For example, in determining whether an agency has violated a past practice, it must be established, among other things, that the agency exercised a consistent policy concerning a condition of employment for an extended period of time and that the agency acted inconsistent with that policy. See, e.g., Department of the Navy, Naval Aviation Depot, Pensacola, Florida and American Federation of Government Employees, Local 1960, Pensacola, Florida, 48 FLRA 731, 734 (1993). In this connection, the national grievance at issue in this case alleges that the Agency had a nationwide policy regarding Union participation in the selection process and that the Agency violated the policy. On the other hand, in establishing whether an agency has violated section 7116(a)(1) and (5) of the Statute by repudiating a collective bargaining agreement -- as alleged in this case -- it must be determined whether the respondent's action was a "clear and patent breach of the terms of the agreement[,]" and whether the provision of the agreement breached goes to "the heart of the parties' . . . agreement[.]" Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, 51 FLRA 858, 862-63 (1996). In this case, the Respondent is charged with violating the Statute by repudiating the parties' MOU and as a result, it must be determined whether the Respondent breached a term of the MOU, whether the breach was clear and patent, and whether the provision breached went to the heart of the MOU. These issues are distinct from those presented by the grievance.
Based on the foregoing, we conclude that the record supports the Judge's conclusion that the amended complaint was not barred under section 7116(d) of the Statute. [n5]
B. The Amendment to the Complaint and the Denial of the Motion to Postpone Were Proper
The Authority's Regulations permit the amendment of a ULP complaint at any time prior to it being transmitted to the Authority, including during the hearing. See 5 C.F.R. § 2423.20(c); Department of Veterans Affairs, Veterans Affairs Medical Center, Hampton, Virginia and American Federation of Government Employees, Local 2328, AFL-CIO, 51 FLRA 84, 87 (1995) (Veterans Affairs Medical). In determining whether a motion to amend is proper, the Authority assesses whether the respondent had sufficient notice regarding the issue sought to be included in the complaint by the amendment. See, e.g., Veterans Affairs Medical, 51 FLRA at 87, 94 n.1; United States Department of Justice, Bureau of Prisons, Washington, D.C., and Bureau of Prisons, Federal Correctional Institution, Ray Brook, New York, 22 FLRA 928, 933, 940 n.1 (1986); U.S. Customs Service, Region I (Boston, Massachusetts), 15 FLRA 309, 309 n.1 (1984). The Authority will reverse a judge's ruling on a motion to amend a complaint only where the judge abused his or her discretion. Veterans Affairs Medical, 51 FLRA at 87. [ v55 p955 ]
The Respondent asserts that it was prejudiced by the amendment to the complaint because the amendment required the Respondent to defend a claim that was not raised in the charge and original complaint. As found by the Judge, however, the allegation in the amended complaint bears a relationship to the charge and the original complaint, which put Respondent on notice that the General Counsel alleged a continuing violation of the MOU. In this respect, in addition to the allegation concerning the single failure to convene an interview panel, the original complaint specifically states that "[s]ince July 1, 1997, Respondent has refused to comply with the [MOU]." Exceptions, Attachment 11 at ¶¶ 14, 15. This contradicts the Respondent's assertion that the original complaint involved only the single failure to convene an interview panel. In addition, it demonstrates that the Respondent clearly was on notice that the scope of the allegation against it in the original complaint included a continuing violation of the MOU and that it would be called upon to defend why it had not complied with the MOU during a period which would have included the time after October 1, 1997.
The record also contradicts the Respondent's claim that it understood the charge to be limited to a single violation involving the Respondent's failure to convene an interview panel in July 1997. During the period where the General Counsel was investigating the charge, the Respondent, replying to a letter from the General Counsel's office, stated the following:
It is also important to note that the Agency was informed in two separate memorandums to cease all partnership processes in selections of both management and non-management positions. The memorandums were signed by [the] Director of Human Resource Management, AHR-1, dated August 26, 1997, and [the] Director of Airways Facilities, AAF-1, dated October 7, 1997. All union participation in the selection process has ceased since the receipt of the above mentioned memorandums.
Joint Exhibit 10. This demonstrates that the Respondent recognized that the violation described in the charge implicated more than the one incident in July 1997. It also supports the conclusion that, in defending its failure to comply with the MOU as alleged in the initial complaint, the Respondent recognized that the October notification would be at issue.
The Respondent also objects to the Judge's denial of its motion to postpone the hearing. As with the Judge's conclusions regarding the Respondent's objections to the amendment of the complaint, we review the Judge's denial of this procedural motion to determine whether the Judge abused his discretion. Cf. Pension Benefit Guaranty Corporation and National Treasury Employees Union, 52 FLRA 1390, 1398 (1997) (denial of motion to reopen record reviewed for abuse of discretion).
In rejecting Respondent's motion, the Judge found that the matters raised in the amended complaint remained a local, not a national, issue and, as such, the Respondent's claim that it needed additional time to gather evidence and witnesses was without merit. The Respondent had asserted generally that the amendment to the complaint required it to obtain witnesses that could testify regarding national issues and to develop a new theory of the case. The Respondent did not make any specific showing in support of its claim. Similarly, the Respondent has not pointed in its exceptions to any specific information that would support a finding that the Judge abused his discretion.
In these circumstances, where the Respondent had sufficient notice regarding the allegations set forth in the amended complaint, we conclude that the Judge did not abuse his discretion in permitting the amendment of the complaint and in refusing to postpone the hearing. Accordingly, we deny the exception.
C. The General Counsel Satisfied its Burden of Proving That the Respondent Repudiated the Parties' MOU as Alleged in the Complaint
The Respondent argues that the General Counsel failed to establish one of the allegations contained in the amended complaint. [n6] Specifically, the amended complaint alleges that the repudiation occurred on October 1, 1997. According to the Respondent, the record clearly reflects that the Charging Party's representatives were not aware of the Respondent's action until later in October.
We note, at the outset, that the record does not establish that the change in policy did not occur on October 1, 1997, as alleged in the complaint. While the October 1 letter that formed the basis of the allegation in the complaint may not have been received at the local level on that date, there is no reason to believe that the local parties were not subject to the direction in that letter when it was issued. However, even if the change did not occur on exactly October 1, 1997, for the reasons [ v55 p956 ] explained below we find that the General Counsel satisfied its burden of proving that the Respondent repudiated the parties' MOU as alleged in complaint.
The purpose of a complaint is to give notice to a respondent of the specific claims against it. See U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 40 FLRA 449, 455 (1991). The sufficiency of a complaint is not judged on the basis of rigid pleading requirements. See American Federation of Government Employees, Local 2501, Memphis, Tennessee and Clarence C. Brown, An Individual, 51 FLRA 1657, 1660 (1996) (AFGE, Local 2501). Thus, where a complaint is silent or ambiguous about specific issues that are later raised at the hearing, the Authority may still consider and dispose of those issues if the record shows that they were "fully and fairly litigated." Id. In this connection, a Judge may find a violation of the Statute even where that violation is not the exact violation alleged in the complaint. Id.
With respect to the General Counsel's burden of proving an alleged violation, the Authority has held that "[i]n order to establish a prima facie showing that an unfair labor practice has occurred, the General Counsel must present evidence that would establish the elements of the statutory violation alleged, if such evidence is presumed to be true and the evidence presented by the opposing party is disregarded." U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Memphis Tennessee, 42 FLRA 712, 713 (1991). Consistent with this standard, we find that the General Counsel is not always required to prove each alleged fact as it was specifically pled.
Here, the Judge found that the act giving rise to repudiation occurred when it was announced in "October 1997" that representatives would no longer be permitted to participate in interview panels. Judge's Decision at 9. It was not necessary for the General Counsel to establish, or the Judge to find, that the repudiation occurred on the specified day alleged because the repudiation itself was the matter at issue and that issue was fully and fairly litigated. The Respondent clearly understood that it was the change made in October 1997 that was at issue; the exact date the Charging Party received notice of the change was not significant. [n7]
Based on the foregoing, we conclude that the Judge did not err in finding that Respondent repudiated the parties' MOU as alleged in the complaint. Accordingly, we deny the exception.
D. The Respondent's Exception Arguing That the MOU Interferes With Management Rights or Relates to a Permissive Subject of Bargaining Is Not Properly Before the Authority
It is well established that exceptions based on evidence or issues that could have been, but were not, raised before the Judge will not be considered by the Authority under section 2429.5 of the Authority's Regulations. See U.S. Department of Justice, Federal Bureau of Prisons, FCI Danbury, Danbury, Connecticut and American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 1661, 55 FLRA 201, 204 (1999) (FCI, Danbury) (holding that respondent could not argue that the provision at issue interfered with management's rights, because that argument was not made to the judge below). See also U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA No. 127, slip op. at 31 (1999); National Naval Medical Center and Delores H. Smith, 54 FLRA 1078, 1079 n.1 (1998).
A review of the record demonstrates that the Respondent is making its arguments -- that MOU interferes with management's rights and relates to a permissive subject of bargaining -- for the first time in its exceptions before the Authority. The arguments all challenge whether the MOU itself is enforceable -- an issue that clearly could have been raised in defending the alleged repudiation. In particular, the Respondent did not challenge the enforceability of the MOU in its response to the complaint or at any time in the proceeding before the Judge, either during the pre-hearing conference, in its objection to the General Counsel's motion to amend the complaint, during the hearing itself or in its Post-Hearing Brief.
As the Respondent's final exception is based solely on issues that could have been, but were not, raised before the Judge, we find that those arguments are not properly before the Authority under section 2429.5 of the Authority's Regulations. Accordingly, we do not consider the exception. See FCI, Danbury, 55 FLRA 201. [ v55 p957 ]
V. Order [n8]
Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Statute, the Department of Transportation, Federal Aviation Administration, Fort Worth, Texas, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain with the Professional Airways System Specialists (PASS), the exclusive representative of a unit of employees located at the Lone Star SMO, Bedford, Texas, over PASS representation on employee interview panels.
(b) Failing and refusing to allow PASS representation on employee interview panels as allowed by the March 29, 1996 Memorandum of Understanding (MOU).
(c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Rescind the ban on PASS on interview panels which became effective on October 1, 1997.
(b) Allow PASS representation on employee interview panels to the extent required by the parties' March 29, 1996 MOU.
(c) Notify and, upon request, bargain with PASS over changes in conditions of employment concerning PASS representation on employee interview panels as required by the parties' March 29, 1996 MOU.
(d) Post at the Fort Worth, Texas, facility where bargaining unit employees represented by PASS are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of the forms, the Notice shall be signed by the Regional Administrator, Federal Aviation Administration, Southwest Region, and shall be posted and maintained for 60 days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily placed. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Dallas 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 Department of Transportation, Federal Aviation Administration, Fort Worth 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 fail and refuse to bargain with the Professional Airways System Specialists (PASS), the exclusive representative of a unit of bargaining unit employees, over PASS representation on employee interview panels.
WE WILL NOT fail and refuse to allow PASS representation on employee interview panels as required by the March 29, 1996, Memorandum of Understanding (MOU).
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL rescind the ban on PASS representation on employee interview panels which became effective on October 1, 1997.
WE WILL allow PASS representation on employee interview panels the extent required by the parties' March 29, 1996 MOU.
WE WILL notify and, upon request, bargain with PASS over changes in conditions of employment concerning its representation on employee interview panels as required by the parties' March 29, 1996 MOU.
________________________
(Activity)
Date:_________________By____________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Regional Office, whose address is: 525 Griffin Street, Suite 926, Dallas, Texas, 75202, and whose telephone number is: (214) 767-4996.
File 1: Authority's Decision in 55 FLRA No.
157
File 2: ALJ Decision
Footnote # 1 for 55 FLRA No. 157 - Authority's Decision
For the purpose of clarity, all references herein to the "Union" refer to the national level of the Professional Airways System Specialists, and all references to the "Charging Party" refer to the Union's local agent. In addition, all references to the "Agency" refer to Headquarters of the Department of Transportation, Federal Aviation Administration, and all references to the "Respondent" refer to the Agency's Fort Worth, Texas Division.
Footnote # 2 for 55 FLRA No. 157 - Authority's Decision
Prior to the 1996 amendment, the MOU provided that representatives of the Charging Party "will" be members of such panels. The charge in this case alleged a violation of the terms of the MOU prior to its amendment. While investigating the charge, the General Counsel became aware of the amendment and as a result, the complaint alleges a violation of the terms of the MOU as amended. All references herein to "the MOU" refer only to the MOU as amended.
Footnote # 3 for 55 FLRA No. 157 - Authority's Decision
The Respondent does not except to the Judge's interpretation of the parties' MOU. Nor does the Respondent except to the Judge's finding that the Respondent breached the MOU, that the breach was clear and patent and went to the heart of the MOU, and that therefore, the Respondent repudiated the parties' MOU. Accordingly, we adopt without precedential significance these findings of the Judge to which no exceptions were filed. See, e.g., U.S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and American Federation of Government Employees, Council of Prison Locals, 55 FLRA 388, 388 (1999).
Footnote # 4 for 55 FLRA No. 157 - Authority's Decision
Neither the General Counsel nor the Charging Party filed an opposition to the Respondent's exceptions.
Footnote # 5 for 55 FLRA No. 157 - Authority's Decision
In reaching this conclusion, we note that the Judge's conclusion that section 7116(d) does not apply to the process of amending ULP complaints is incorrect. Section 7116(d), by its terms, applies to the "raising" of "issues" in particular forums. The Judge's conclusion that section 7116(d) requires an identity of parties is also incorrect. See Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, 17 FLRA 1001, 1003 (1985) ("the use of `party' in section 7116(d) does not require identity of filing parties in order for this element of the preclusion to attach"), reversed and remanded as to other matters sub nom., OEA, 824 F.2d 61.
Footnote # 6 for 55 FLRA No. 157 - Authority's Decision
As stated in note 3, supra, the Respondent does not except to the Judge's interpretation of the parties' MOU, the Judge's finding that the Respondent breached the MOU, or his finding that the Respondent repudiated the MOU because the breach was clear and patent and went to the heart of the MOU.
Footnote # 7 for 55 FLRA No. 157 - Authority's Decision
In reaching this conclusion, we note that the specific date alleged in a complaint may be critical in cases where an element of the alleged statutory violation is that the respondent had knowledge of a particular matter at the time it effected a change. For example, in U.S. Equal Employment Opportunity Commission, Washington, D.C., 48 FLRA 306, 311 (1993), the Authority held that in establishing whether section 7116(a)(5) of the Statute had been violated, the General Counsel was required to demonstrate that, on the exact date the respondent implemented the change alleged in the complaint, the respondent had knowledge that the matter was pending before the Federal Service Impasses Panel. In this case, by contrast, whether the repudiation occurred on October 1st or October 7th is not material to whether the repudiation actually occurred and whether the Respondent violated the Statute.
Footnote # 8 for 55 FLRA No. 157 - Authority's Decision
We note that this Order and the attached Notice modify the remedy recommended in the Judge's decision, which required the Respondent to bargain upon the Charging Party's request. We have modified the Order and Notice because no request to bargain is required unless and until the Respondent provides appropriate notice of an intention to modify the parties' MOU.