U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio and International Association of Firefighters, Local F-88 , Case No. Ch-Ca-70577

[ v55 p968 ]

55 FLRA No. 159



(Charging Party/Union)




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 case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent filed an opposition to the exceptions.

      The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it terminated the practice of permitting unit employees to smoke inside the Respondent's fire stations without affording the Union an opportunity to bargain. The Judge concluded that the Respondent did not violate the Statute because no past practice permitting smoking inside fire stations was established, the parties negotiated agreement banned such smoking and, thus, the Respondent was not obligated to bargain with the Union over the matter.

      Upon consideration of the Judge's decision and the entire record, we find that the Judge erred when he ignored the Respondent's admission that a past practice of permitting smoking had been established by the parties. We remand the complaint to the Judge for further consideration of whether the Respondent improperly failed to bargain with the Union. [ v55 p969 ]

II.     Background and Judge's Decision

      The Charging Party and the Respondent have a Command Labor Agreement (CLA) covering firefighters at the Wright-Patterson Air Force Base (WPAFB) and four other bases. The CLA prohibits smoking in all fire stations. [n1]  Despite the CLA's indoor smoking prohibition, this policy was not followed at WPAFB. Instead, practices that began prior to the CLA's enactment--smoking at any time inside the fire stations--continued without change until the Respondent's enforcement of the CLA's provisions, which precipitated this dispute.

      The Respondent's decision to enforce the CLA's smoking policy was triggered when its newly-appointed fire chief became aware that employees were smoking inside fire stations. The Respondent, in writing, notified the Union that all such smoking was to cease. The Union orally objected that the Respondent's actions would be a substantive change in a negotiable condition of employment. A series of communications ensued between the parties, but no written notification from the Union of its intent to negotiate was provided to the Respondent. [n2]  Subsequently, the Respondent enforced the smoking prohibition.

      The Union filed an unfair labor practice charge, and the General Counsel issued a complaint alleging that the Respondent terminated the practice of permitting unit employees to smoke inside WPAFB fire stations without providing the Union the opportunity to negotiate over the change. The Respondent's answer admitted that it terminated the practice of smoking inside the fire stations, but disputed that it refused to negotiate with the Union.

      The Judge determined that the Respondent did not violate the Statute when it enforced the CLA's smoking policy without negotiating with the Union because no past practice of smoking inside the fire stations had been established. The Judge stated that, in order to constitute a past practice that cannot be changed without notice and an opportunity to bargain, a practice must be "consistently exercised over an extended period of time with the knowledge and express or implied consent of 'responsible management' within the agency." Judge's Decision at 8 (citations omitted). Where the practice is contrary to a provision in a collective bargaining agreement, the Judge held that the practice must be "either known to or acquiesced in by the signatories" to the agreement. Id. at 10.

      The Judge found that the General Counsel failed to establish that a responsible agency official was aware that employees were smoking indoors and that, therefore, there was no past practice of smoking in the fire stations. The Judge concluded that the CLA governed the smoking policy and that the Respondent was not legally obligated to bargain over adherence to this policy. Accordingly, the Judge determined that the Respondent had not violated the Statute because it had no obligation to bargain. He expressly did not address the Respondent's claim that it refused to bargain because the Union did not follow the procedures requiring written notice for initiating bargaining under the CLA. Id. at 10, n. 4.

III.     Positions of the Parties

A.     General Counsel's Exceptions

      The General Counsel argues that the Judge erred by ruling on an issue not raised or litigated by the parties. The General Counsel argues that although the Judge determined that the past practice of smoking inside the fire stations at WPAFB was not established, the Respondent never denied the existence of this past practice. The General Counsel contends that the Respondent expressly conceded this point in its post-hearing brief to the Judge when it stated that "a past practice evolved at WPAFB to permit smoking inside the fire stations in designated areas." General Counsel's Exceptions at 14 n. 5 (quoting Respondent's Post-Hearing Brief at 2).

      The General Counsel argues that the central issue before the Judge, which he did not address, was whether a past practice developed between the parties of permitting the Union to informally conduct labor relations. The General Counsel contends that this issue was litigated by the parties but not addressed by the Judge. Id. at 13-14.

      The General Counsel also asserts that the Judge erred in his determination that national level acquiescence was required in order for the past practice of smoking in the fire house to become a condition of employment. Id. at 4-11. [ v55 p970 ]

B.     Respondent's Opposition

      The Respondent argues that the General Counsel's assertion that the Judge erred by ruling on an issue that was not raised or litigated is an attempt to relitigate the merits of its case. The Respondent asserts that the burden is on the General Counsel to establish the existence of a past practice in its case-in-chief, that the General Counsel argued the issue of past practice before the Judge, and that the Judge correctly rejected this argument. Respondent's Opposition at 9.

IV.     Analysis and Conclusions

A.     The existence of a practice of smoking in the fire house was conceded by the Respondent.

      The General Counsel asserts that the Judge erred because the matter considered dispositive by the Judge--whether a past practice had evolved of smoking inside fire stations--was conceded by the Respondent and, therefore, was not litigated. A review of the record supports the General Counsel's assertion.

      The Respondent's answer to the complaint makes clear that the existence of a past practice of smoking was not in dispute. Paragraph 11 of the complaint alleges that "[o]n or about June 18, 1997, [the Respondent] notified [the Union] that effective July 7, 1997 Respondent would terminate the practice of smoking inside the Fire Stations at Wright-Patterson Air Force Base, Ohio." Complaint at 2. The Respondent's answer admits that paragraph 11 is true. Answer, Paragraph 5.

      That the Respondent intended to concede this point is confirmed by the Respondent's submissions during the proceedings. In its pre-hearing statement of its theory of the case, the Respondent took the position that "a past practice evolved at Wright-Patterson Air Force Base (WPAFB) to permit smoking inside the fire stations in designated areas." Respondent's Pre-Hearing Disclosure at 4. The Respondent elaborated on this point in its post-hearing brief:

During the course of this contract[,] . . . a past practice evolved at WPAFB to permit smoking inside the fire stations in designated areas. Respondent decided to give notice to the Union that it intended to change the past practice which had developed of allowing inside smoking and [to enforce the CLA]."

Respondent's Post-Hearing Brief at 2.

      The General Counsel's post-hearing brief addresses the subject matter of past practice, but it does so only in connection with the practice of conducting labor relations informally--not in connection with the practice of smoking inside the fire stations. General Counsel's Post-Hearing Brief at 6-10. Specifically, the General Counsel states that it is "not disputed" that the practice of smoking in the fire stations had been established and followed by the Respondent and the Union. Id. at 8.

      Viewed as a whole, the record amply demonstrates that the Respondent acknowledged a past practice of smoking in the WPAFB fire stations. By determining that such a practice was not established because the record did not indicate that any official at the "[c]ommand level" was aware of the policy, the Judge ignored what amounts to an admission by the Respondent and, as a result, erred. Judge's Decision at 10.

      An unfair labor practice hearing must be conducted "in accordance with the provisions of subchapter II of chapter 5 of this title. . . ," the Administrative Procedures Act (APA). 5 U.S.C. § 7118(a)(6). Under the APA, all decisions--including "initial . . . decisions" by administrative law judges--must include "findings and conclusions" on all the "material issues of fact, law or discretion presented on the record." 5 U.S.C. § 557(c)(3)(A) (1966). This provision requires that an administrative law judge who is "faced with evidence in the record contradicting his conclusion . . . must affirmatively reject the contradictory evidence and explain his rationale for so doing." See v. Washington Metropolitan Area Transit Authority, 36 F.3d 375, 384 (4th Cir. 1994) (citing CNA Insurance Company v. Legrow, 935 F.2d 430, 436 (1st Cir. 1991) (additional citations omitted)). Here, the Judge resolved an issue that was not "presented on the record," within the meaning of 5 U.S.C. § 557(c)(3)(A) because it was uncontested. Further, he did so without rejecting the Respondent's admissions, and without offering the parties an opportunity to address his rejection of the Respondent's admission.

      Analogous principles that apply to pleading rules used in Federal court, while not binding on FLRA judges, support the conclusion that the Judge erred. [n3]  In particular, Rule 8(d) of the Federal Rules of Civil Procedure provides that any "[a]verments in a pleading . . . are admitted when not denied in the responsive pleading." Such admissions, as well as admissions made in discovery under Rule 36, [n4]  are considered "an unassailable statement of fact that narrows the triable issues in the case." AIRCO Industrial Gases, Inc., Division of the BOC Group, Inc., v. Teamsters Health and Welfare Pension Fund of Philadelphia and Vicinity, 850 F.2d 1028, 1037 (3d Cir. 1988) (AIRCO). "An admission [ v55 p971 ] that is not withdrawn or amended cannot be rebutted by contrary testimony or ignored by the district court simply because it finds the evidence presented by the party against whom the admission operates more credible." American Automobile Association v. AAA Legal Clinic of Jefferson Crooke, 930 F.2d 1117, 1120 (5th Cir. 1991). A judge may not simply ignore an admission and find to the contrary, without explaining his disregard of the pleadings.

      In addition, a judge's responsibility with respect to issues not contested by the parties is, in important respects, similar to his or her obligation when presented with new issues that have not been raised. The Authority has stated that a judge may not resolve issues that are not encompassed in a complaint, unless both parties understand the substance of the dispute and the parties fully litigate the issue at the hearing. See U.S. Customs Service (Washington, D.C.); and U.S. Customs Service, Northeast Region (Boston, Massachusetts), 29 FLRA 891, 901-02 (1987); see also U.S. Government Printing Office, 23 FLRA 35, 38 (1986). An issue is considered to be encompassed in a complaint "where both parties understood the subject of the dispute and, at the hearing, presented evidence and witnesses relevant to the issue of the dispute." U.S. Department of Health and Human Services Health Care Financing Administration, 35 FLRA 491, 494 (1990).

      In this case, while the existence of a past practice of smoking in the fire stations was encompassed in the complaint, the Respondent took the issue out of contention when it admitted the allegation. Thus, as with an issue not raised, the parties did not "under[stand] the subject of the dispute" or have an opportunity to present evidence with respect to it. Id. For the same reason that judges may not resolve issues not encompassed in a complaint, they may not ignore a party's admission of a material fact.

      In sum, the complaint, the answer, the Responde