[ v55 p1250 ]
55 FLRA No. 202
FEDERAL BUREAU OF PRISONS
FEDERAL BUREAU OF PRISONS
SOUTH CENTRAL REGION
FEDERAL BUREAU OF PRISONS
FEDERAL TRANSFER CENTER
OKLAHOMA CITY, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 171, AFL-CIO
DECISION AND ORDER
January 24, 2000
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
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 Respondents.
The amended consolidated complaint alleges that the Respondents violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (Statute) by failing and refusing to provide the Union with certain sanitized information concerning disciplinary actions. The Judge found that Respondents, Federal Bureau of Prisons, Washington, D.C. (Bureau) and Federal Bureau of Prisons, South Central Region, Dallas, Texas (Region) violated the Statute as charged. The Judge dismissed the complaint against Respondent Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, Oklahoma (Activity). [n2]
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 agreement with the Judge's conclusions, we find that the data requested by the Union is both necessary and reasonably available within the meaning of section 7114(b)(4)(B) of the Statute and that the Bureau and the Region violated the Statute. We also adopt the Judge's recommended remedy and reject the argument that the remedy is inconsistent with the Respondents' right to assign work under section 7106(a) of the Statute.
II. Background and the Judge's Decision
The facts are fully set out in the Judge's decision and are only briefly summarized. As relevant here, the Bureau is administratively organized into six geographical regions, and each region is responsible for oversight of the institutions within its jurisdiction. The Activity is one of 18 institutions within the jurisdiction of the Region. There are approximately 90 institutions nationwide.
The Bureau and the American Federation of Government Employees, AFL-CIO (AFGE), Council of Prison Locals (Council) are parties to a nationwide collective bargaining agreement (Master Agreement). AFGE, Local 171 (the Union) is the agent of the Council for the purpose of representing unit employees at the Activity. Article 30 of the Master Agreement concerns "Disciplinary and Adverse Actions" and provides, among other things, that the Bureau will take disciplinary or adverse action "only for just and sufficient cause and to promote the efficiency of the service." Joint Exhibit (Jt. Ex.) 1 at 35.
Although ultimate authority to take disciplinary action rests with the Chief Executive Officer (CEO) of each institution, the Bureau requires some degree of uniformity in the implementation of disciplinary actions. [ v55 p1251 ] The Bureau's Program Statement 3420.08 "Standards of Employee Conduct" prescribes uniform standards of conduct and responsibility for all of the Bureau's employees. Failure to abide by the standards may result in sanctions including disciplinary or adverse action. Included as an addendum to the Program Statement is the Bureau's "General Schedule of Disciplinary Offenses and Penalties" (Table of Penalties, Jt. Ex. 3, Attachment A). The Table of Penalties generally prescribes a broad range of penalties for particular offenses because deciding officials (as relevant here, CEOs of institutions), who know the circumstances surrounding each incident, "[are] the person[s] best suited to determine the appropriate penalty." Jt. Ex. 3, Attachment A at 1.
Further, the Bureau's Human Resource Management Manual requires oversight and coordination between organizational levels with respect to employee discipline. Prior to the issuing of any proposal to take disciplinary action, an institution must forward the proposal to the regional office for review. This review is intended not only to assure technical compliance with applicable regulations, but, according to uncontroverted testimony, also to ascertain if proposed penalties are "out of line." Transcript (Tr.) at 133. Moreover, institutions are advised to consult, when necessary, with the Bureau's national labor-management relations office (LMR) prior to issuing proposals for disciplinary action. [n3] In addition, institutions are to provide LMR with copies of all proposal and decision letters actually issued in disciplinary actions; however, this requirement has not been enforced.
The instant case arose when, in the course of representing a unit employee who had been suspended for one day for misuse of her two-way radio, the Union made simultaneous requests to the Activity, the Region, and the Bureau for sanitized copies of proposal or final disciplinary notices in cases where employees had been charged with misuse of radios. The Activity responded that it had no information responsive to the request. The Region and the Bureau denied the requests on the ground that there was no need for comparative disciplinary data beyond the Activity level. The Union filed unfair labor practice charges over these denials. Subsequently the General Counsel issued a consolidated Complaint and Notice of Hearing alleging that the Respondents' refusal to provide the requested information violated section 7116(a)(1), (5), and (8) of the Statute.
B. The Judge's Decision
As a preliminary matter, the Judge noted that it was uncontested that the information requested was normally maintained by the Bureau and that release of the information (sanitized disciplinary letters) was not prohibited by law. The Judge next found that the information was reasonably available. In particular, the Judge stated that the "Respondents introduced no evidence at all into the record concerning how long it would take, or how costly it would be, to retrieve and furnish the requested information to the Union." Judge's Decision at 8. According to the Judge, the Bureau could have retrieved the information from the Office of Internal Affairs (OIA), which maintains both a subject-matter log and copies of all proposed and final disciplinary actions taken throughout the Bureau; or it could have asked the six regions within the Bureau to consult their disciplinary logs and/or request the institutions under their respective control to retrieve the information. Similarly, the Region could have asked the 18 institutions under its control for the information the Union requested herein, as other regions have done in the past.
The Judge next considered whether the information requested was necessary. In analyzing this issue, the Judge separately analyzed the responsibilities of the Activity, Region, and Bureau. Noting that the Activity responded that it had no documents responsive to the Union's request, the Judge did not consider the necessity issue as it related to the Activity.
With respect to the Region, the Judge initially noted that the Region made no attempt to search for the requested documents but instead responded that the discipline was a local matter and disciplinary actions taken at other institutions were irrelevant. The Judge found that in cases concerning disciplinary actions, the Authority and the courts have consistently found comparative data "necessary" within the meaning of section 7114(a)(4) of the Statute. Indeed, the Judge noted that the Respondents did not assert that the type of information sought by the Union was not necessary; rather, Respondents instead contended that the scope of the Union's request was overly broad, i.e., that comparative data beyond the Activity level is not necessary to represent the unit employee.
The Judge rejected the contention that comparative data beyond the regional level is not necessary. Although recognizing that the CEO of each institution is given significant discretion to decide appropriate disci- [ v55 p1252 ] pline for violations of the Standards of Conduct, the Judge concluded that this discretion supported the exclusive representative's need to verify that like cases were being treated in a comparable manner. The Judge also found that the value of the arbitration provisions of the Master Agreement would be significantly diminished if the arbitrator were not permitted to compare related cases taken at other institutions.
Employing the same reasoning that he had applied to the Region, the Judge found that the information was necessary as it related to the Bureau. The Judge particularly noted that the level of exclusive recognition is Bureau-wide and, therefore, the obligation to furnish the Union with data exists at the Bureau level.
In sum, the Judge found that the information requested was "reasonably available" and "necessary" within the meaning of section 7114(b)(4) of the Statute. Accordingly, the Judge concluded that the Activity, which indicated it had no information responsive to the request, did not violate the Statute, but that the Region and the Bureau violated the Statute by failing to furnish the information. As a remedy he ordered that, upon request, the Region and the Bureau furnish the information and that a notice signed by the Bureau's Director be posted nationwide.
III. Positions of the Parties
A. Respondents' Exceptions
Relying on precedent of the Merit Systems Protection Board (MSPB) and of the Equal Employment Opportunity Commission (EEOC), as well as Department of Justice, U.S. Border Patrol v. FLRA, 991 F.2d 285 (5th Cir. 1993) (DOJ v. FLRA), the Respondents assert that the legitimate scope of information sought by the Union here is limited to the Activity. Respondents also maintain that the Judge's holding "does not comport with current Authority case law as to what constitutes `necessary,'" specifically citing Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS, Kansas City). Respondents' Exceptions (Exceptions) 11. Relying on DOJ v. FLRA, the Respondents claim that the Authority's test for determining reasonable availability (on which the Judge relied) are inappropriate and, contrary to the Judge's conclusion, there is no evidence that the information is reasonably available.
With respect to the recommended remedy, the Respondents first object to the order that the notice be posted nationwide. The Respondents contend that neither the Region nor the Bureau can be liable because the Union has representational responsibilities only with the Activity. Second, the Respondents assert that an order directing a specific Bureau official to sign the posting interferes with its right to assign work under section 7106(a)(2)(B). The Respondents rely on Authority precedent holding that the right to assign work "encompasses `the right to determine . . . to whom or what positions the duties will be assigned.'" Exceptions 16-17 (quoting National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 739 (1996)) (Laurel Bay Teachers).
B. General Counsel's Opposition
The General Counsel contends that information from the Bureau and Activity is necessary and appropriate in light of the reference in the disciplinary article of the parties' Master Agreement to "the maintenance of the highest standards of employee conduct." Jt. Ex. 1 at 35. The General Counsel also asserts that in a previous disciplinary dispute between the parties, the grievance arbitrator examined whether the discipline imposed was consistent with that given at other facilities. As for reasonable availability, the General Counsel notes the Respondents' admission that Bureau regulations require that both proposed and final disciplinary actions be forwarded to the Region and the Bureau. Finally, as for the recommended remedy, the General Counsel argues that the Judge's remedy is appropriate based on "the absence of any established countervailing interests combined with the nature of the violation and the on going [sic] impact." Opposition to Exceptions at 8. [ v55 p1253 ]
IV. Analysis and Conclusions
A. The Requested Information Is Necessary
1. Evidentiary Standards of the MSPB and EEOC Are Not Dispositive of "Necessity" Under Section 7114(b)(4)
We first reject Respondents' reliance on the precedent of the MSPB and the EEOC to support their contention that regionwide and nationwide comparative data are not necessary within the meaning of section 7114(b)(4) of the Statute. The Authority has previously addressed the relevancy of MSPB evidentiary standards to determinations concerning "necessity" under section 7114(b)(4) of the Statute, most recently in Internal Revenue Service, Austin District Office, Austin, Texas, 51 FLRA 1166, 1179-80 (1996). There the Authority held that rules of other forums on the admissibility of evidence do not govern the "necessity" of information under the Statute. In that regard, the Authority has held that arbitrators are not obliged to follow MSPB practices and procedures. [n4] See U.S. Department of the Treasury, Internal Revenue Service, Phoenix District and National Treasury Employees Union, Chapter 33, 43 FLRA 686, 689-90 (1991). Indeed, as discussed below, in a previous arbitration between the Bureau and the Council, evidence of disciplinary action taken at an institution other than the one imposing discipline was admitted into evidence by the arbitrator. See subsection 2.b., below.
Accordingly, we decline, in this circumstance, to apply the evidentiary standards of the MSPB and EEOC when determining whether information is necessary under section 7114(b)(4)(B) of the Statute.
2. Regionwide and Nationwide Data Are Necessary in This Case
a. The Union Has Articulated a Particularized Need for the Data
In agreement with the Judge, we find that in the facts and circumstances of this case the Union has established a particularized need for data from the Region and the Bureau. In its information requests, the Union's articulated need for the information included specific reasons related to its regional and Bureau-wide scope: first, to "fully know and to understand the Bureau's [and Region's] policies, practices, and procedures that govern the discipline of all employees"; second, to "determine whether or not the Bureau [and Region] is complying with it's [sic] responsibilities to administer its disciplinary system in a fair and evenhanded, nationwide manner"; and third, "to show the disparity of discipline/adverse action practiced by the Bureau [and Region] for similar offenses at different facilities by different administrators against different employees if in fact there is any." Jt. Exs. 6 at 1, 7 at 1. The Union asserted that the requested information would assist the Union "[t]o prepare to represent [the grievant] at an up-coming arbitration hearing"; "to realistically assess the strengths and/or weaknesses of [the grievant's] case"; and "[t]o determine how best to proceed and to argue [the grievant's] case." Id.
The Union's expressed reasons satisfy the Authority's particularized need test set out in IRS, Kansas City. Specifically, the Union has explained "with specificity, why it needs the requested information, including the uses to which the union will put the information and the connection between those uses and the union's representational responsibilities under the Statute." IRS, Kansas City, 50 FLRA at 669. As such, the Respondents were in a position "to make a reasoned judgment" concerning disclosure. Id. at 670.
Respondents cite two cases, U.S. Department of Labor, Washington, D.C., 51 FLRA 462 (1995) (DOL) and Department of Health and Human Services, Social Security Administration, New York Region, New York, New York, 52 FLRA 1133 (1997) (SSA), to support their contention that the Union has not satisfied the particularized need test. Both, however, are distinguishable. In DOL, the union had requested unsanitized copies of disciplinary suspension records for bargaining unit and nonunit employees covering a five-year period, claiming that it needed the information to prepare for arbitration proceedings involving suspensions of five unit employees and to ensure that the agency had been consistent in disciplining employees. 51 FLRA at 476. The Authority found that although the union's general statements had articulated the need for some disciplinary records, the union had not established the need for the information actually requested. Id. Specifically, the Authority noted that the union had not established why it needed records over such an extended time period, or why it needed name-identified documents. Id. at 476-77. In SSA the union had requested unsanitized data on employee awards from a regional office for the purposes of "monitor[ing] compliance" with the collective bargaining agreement and pursuing "possible grievances [ v55 p1254 ] and EEO complaints due to inequities in the distribution of award money." 52 FLRA at 1147-48. The Authority found that the stated reasons were too general and conclusory to establish the necessity of the information requested. Id. at 1148.
In contrast to these cases, the Union's request here was not overly broad nor were its stated reasons for needing the information conclusory. The data requested here was to be sanitized, was requested in connection with a specific arbitration case, and was limited both with respect to subject matter and time period. Further, the Union's need for the data, i.e., to evaluate and prepare for that arbitration, was clearly articulated. Jt. Exs. 6, 7. Finally, although the information requests in both DOL and SSA were made to Regional and National Offices, the issue of the organizational breadth of the data was neither raised by the parties nor addressed by the Authority. For all these reasons, the Respondents' reliance on the Authority's decisions in DOL and SSA is misplaced.
b. The Union Has Established a Need for Regionwide and Nationwide Data
Respondents contend that even if the Union had articulated a need for some data, comparative data at regional and national levels would not assist the Union in representing the employee because discipline is purely a local matter. However, as the Judge found, a number of factors indicate that there is a bureau-wide discipline program. First, uniform standards of conduct are applicable throughout the Bureau through a Bureau-wide Table of Penalties for assessing discipline. Judge's Decision at 3. Although the individual CEOs are given discretion to adapt a penalty to the facts of a specific case, such discretion is not unlimited and, as the Judge found, should not "go largely unverified and unchallenged." Id. at 12. Nationwide data could, for example, demonstrate that one CEO's choice of disciplinary sanctions is so out of line with that imposed by others so as to be an abuse of that discretion. Id.
Second, discipline is also governed by the nationwide Master Agreement. Jt. Ex. 1, Article 35. The Master Agreement is administered on a nationwide basis, and nothing in the agreement limits the scope of material that may be requested by the Union or considered by a grievance arbitrator. In fact, the General Counsel introduced into the record an arbitration decision involving the Bureau and the Council where the arbitrator considered the consistency of disciplinary action taken at Bureau activities other than the one imposing discipline. General Counsel's Ex. 2 at 11-12.
Finally, the Bureau's own practices and policies indicate that there is significant oversight and coordination between the organizational levels. The Bureau's Human Resource Management Manual requires, for example, that regional offices review proposed disciplinary actions from the institutions within their jurisdiction for consistency with Bureau policy. Respondents' Ex. 3 ¶4. As a result, we agree with the Judge that the information was necessary under the Statute.
B. The Information Is Reasonably Available
Respondents contend that the Judge erred in determining that the information is reasonably available because he improperly relied on Authority precedent that has been criticized by the United States Court of Appeals for the Fifth Circuit in DOJ v. FLRA. Under that Authority precedent, the statutory requirement that data be "reasonably available" would exclude data that is available only through "extreme or excessive means." Department of Health and Human Services, Social Security Administration, 36 FLRA 943, 950 (1990). In DOJ v. FLRA, the court found that the appropriate standard for reasonably available should be something "near the middle" of a spectrum between "readily available" and "available only through `extreme or excessive means.'" 991 F.2d at 291.
Subsequent to the Court of Appeals decision, the Authority has not been presented with an opportunity to revisit its standard for adjudicating whether data requested under section 7114(b)(4) of the Statute is "reasonably available." [n5] Although it is necessary to resolve in this case whether the data requested is reasonably available, we need not reexamine the appropriate standard to do so because the record shows that, under [ v55 p1255 ] any legitimate standard, the data requested is reasonably available.
In this case, the General Counsel presented record evidence demonstrating the means through which the data could be located and retrieved. Tr. at 131-32, 201. On the other hand, and as found by the Judge, the Respondents "introduced no evidence at all into the record concerning how long it would take, or how costly it would be, to retrieve and furnish the requested information." Judge's Decision at 8 (emphasis added). At the hearing, officials of the Respondents interposed no objection concerning the availability of the requested information. On the contrary, Respondents' officials agreed that the data could, in fact, be obtained from the agency components. The Respondents only claim, in this regard, was that the requested information was not necessary. For example, when the Deputy Regional Director was asked if she could have obtained copies of disciplinary actions in response to the Union's request, she responded: "I'm sure -- I mean we could do that, sure. If we considered it relevant, but, again, we did not consider that relevant." Tr. at 131-32. [n6] In fact, the branch chief in charge of labor-management relations for the Bureau, who denied the Union's request at the Bureau level, testified that he "never" even considered whether the information was reasonably available. Tr. at 165. [n7] The branch chief conceded that if need be, the Bureau could obtain this type of information via a message "to every institution and have them look through their files." Tr. at 201. Given their superior knowledge of the costs and burdens required to retrieve the data in question, it was incumbent on the Respondents here to produce evidence of the costs and burdens required to retrieve the data in question. See Lindahl v. Office of Personnel Management, 776 F.2d 276, 280 (Fed. Cir. 1985).
It was not until the filing of their post-hearing brief and exceptions that the Respondents raised the reasonable availability issue. By failing to present any evidence on, or even address, this matter until after the hearing had concluded, the Respondents neglected to develop the record in support of their position on this issue. In light of these circumstances, we conclude that the preponderant evidence supports the General Counsel's assertion that the data was reasonably available. See Trident Seafoods, Inc. v. NLRB, 101 F.3d 111, 116-17 (D.C. Cir. 1996) (affirming National Labor Relations Board's (NLRB) rejection of an argument that respondent raised in a post-hearing brief but did not fully and fairly litigate at hearing).
Our dissenting colleague disagrees with our weighing of the evidence, finding that the branch chief's statement: "god knows how long it would take" to search for the data requested (Tr. at 201) constitutes probative rebuttal evidence. [n8] However, the branch chief's vague and conclusory opinion does nothing to illuminate how much time and resources would be required to locate the data. In that regard, Respondents' nebulous proffer here stands in stark contrast with the substantial evidence put forth by the agency in DOJ v. FLRA -- the case relied on heavily by Respondents and the dissent. In DOJ v. FLRA, the agency established that the union's request encompassed between 5,000 and 6,000 documents, located in numerous locations. 991 F.2d at 288. Further, many of the documents were organized and filed in a manner that rendered search difficult. Id. In addition, and as specifically noted by the court, agency witnesses testified in detail with respect to the time and staff resources that would be required to "find, collect, duplicate and sanitize" the data requested. Id. For example, in that case an agency witness testified as to the extensive amount of time it took one employee just to locate a small portion of the requested information. Id. This comparison not only leads us to disagree with our dissenting colleague, but also serves to distinguish this case from DOJ v. FLRA.
For all the aforementioned reasons, including the complete absence of evidence concerning the resources and effort required to furnish the data, we conclude that this finding is sufficient to support the determination that the data was reasonably available within the meaning of section 7114(b)(4)(B) of the Statute. [n9] [ v55 p1256 ]
C. The Recommended Remedy Is Appropriate
1. Liability Properly Lies with the Region and the Bureau
The Respondents contend that, even if the Union established the requisite need for the data, unfair labor practice liability cannot lie with the Bureau or the Region because those levels had no obligation to respond to the request. Asserting without further explanation that the Union's "interface for seeking that information is at its comparable organizational level [of the Activity]," the Respondents contend that the Union was attempting to "unilaterally force organizational levels above it to deal with it[.]" Exceptions at 15-16. However, the Respondents' contentions are without merit.
It is undisputed that the level of recognition is at the Bureau level. The parties to the Master Agreement are the Bureau and the Council. The Union, as an agent of the Council, is responsible for representing unit employees at the Activity. In representing an employee at the Activity, the Union requested information it considered necessary from the organizational levels, at or beneath the level of recognition, it believed to be the repositories of that information. In that regard, neither the Bureau nor the Region responded to the Union's request by asserting that the request was inappropriately addressed. Rather, both responded by denying the information request on its merits, i.e., claiming that the information requested was not necessary. [n10] In addition, the Respondents point to nothing in the Master Agreement or any established practice that demonstrates that the Bureau or a Regional office has no obligation to respond to information requests submitted by a local union representing unit employees.
It is appropriate to affix liability to the organizational levels that are responsible for conduct that violates the Statute. See, e.g., Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Detroit District, Detroit, Michigan, 43 FLRA 1378, 1391 (1992). Because personnel at the Region and the Bureau separately refused to furnish the Union with the information requested, they will be found to have violated the Statute.
2. Directing the Bureau Head to Sign the Posting Is an Appropriate Exercise of the Authority's Remedial Powers
Relying on precedent developed in negotiability cases, the Respondents contend that the Judge's recommended order, which directs a specific agency official to sign the posting, is invalid because the order interferes with the Bureau's right to assign work under section 7106(a)(2)(B). [n11] For the reasons that follow, we find that the order is a legitimate exercise of the Authority's remedial powers.
a. The Management Rights Provisions of the Statute Do Not Diminish the Authority's Remedial Powers
Among the powers and duties of the Authority under section 7105 of the Statute is to "require an agency or a labor organization to cease and desist from violations of [the Statute] and require it to take any remedial action it considers appropriate to carry out the policies of [the Statute]." (emphasis added). 5 U.S.C. § 7105(g)(3). Similarly, section 7118(a)(7) also provides that the Authority may order any combination of certain enumerated remedies "or such other action as will carry out the purpose of this chapter." (emphasis added). The issue of the relationship of these powers and section 7106(a) has not been previously presented to the Authority. [n12] However, after examining the purpose, as evidenced by the wording and structure of section 7106, its legislative history, and the manner in which the section has been applied and interpreted to date, we conclude that Congress intended section 7106 to limit the scope of collective bargaining rather than the Authority's remedial power. In our view, interpreting section 7106(a) as a limitation on the Authority's unfair labor practice remedial power would significantly frustrate the Authority's obligation to repair and restore the effects of statutory violations. The Statute provides the Authority the discretion to fashion remedies as long as such remedies are consistent with the purposes and policies of the Statute. The Authority has consistently exercised this legislative grant of remedial discretion in the manner that Congress intended. [ v55 p1257 ]
(1) The Purpose of Section 7106(a) Is to Limit the Scope of Bargaining
Notwithstanding the introductory command in section 7106(a) that "nothing in this chapter [i.e. the Statute]" shall affect the exercise of the enumerated management rights, in our view section 7106(a) is applicable only to the scope of bargaining. The language and structure, legislative history, and manner in which section 7106 has been interpreted support our determination that the purpose of section 7106(a) is to limit the scope of bargaining. Turning first to the statutory language and structure, the subsection's introductory phrase makes it "subject to subsection (b) of this section." Section 7106(b), on the other hand, refers specifically and exclusively to "negotiation." This language, structure, and context provide support for the conclusion that the general terms of subsection (a) are intended to refer to the scope of bargaining. See Bailey v. United States, 516 U.S. 137, 145 (1995) ("[T]he meaning of statutory language, plain or not, depends on context.") (internal quotation marks and citations omitted). Moreover, this interpretation is also consistent with the views of reviewing courts. See NFFE and FLRA v. Department of the Interior, ___ U.S. ___, 119 S. Ct. 1003, 1010 (1999) (Section 7106(a) "withdraws from collective bargaining certain subjects that it reserves exclusively for decision by management" and section 7106(b) "preserv[es] the duty to bargain with respect to certain matters otherwise committed to the discretion of management."); see also Association of Civilian Technicians, Montana Air Chapter, No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994) (Section 7106(b) constitutes an exception to the "nonnegotiability of management rights enumerated in subsection (a)[.]").
That section 7106 was intended as a limit on the scope of bargaining is confirmed by the Statute's legislative history. Section 7106 had its origin in the bill introduced in the House of Representatives. See H.R. 11280, 95th Cong. § 7106 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, 96th Cong., 1st Sess. (Comm. Print No. 96-7) (Legis. Hist.) at 325. The Committee Report accompanying that bill states that "[t]he effect of [section 7106] is to place limits on the number of subjects about which agency management may bargain with a labor organization." See H.R. Rep. No. 95-1403 at 43 (1978); Legis. Hist. at 689. Further, the report indicates that the purpose of section 7106 "is to achieve a broadening of the scope of bargaining" from that under Executive Order 11491 which governed federal sector labor relations before enactment of the Statute. Id. Comments by congressmen during the debate over what was to become the Statute confirm that section 7106 was intended to limit what unions could bargain over. See, e.g., Statement of Congressman Clay, 124 Cong. Rec. E4293 (daily ed. Aug. 3, 1998); Legis. Hist. at 839 (the bill "preserved for agency management the right to keep off the bargaining table those prerogatives which the committee believes are essential for them to manage."). Finally, the Conference Report, in reconciling the Senate and House bills, characterized section 7106 of the House bill and section 7128 of the Senate bill as "specif[ying] matters on which the parties may not negotiate under any circumstances and certain other matters on which the agency may, in its discretion negotiate." H.R. Rep. No. 95-1717 at 153 (1978); Legis. Hist. at 821.
Consistent with the interpretation that section 7106 acts as a limit on the scope of bargaining, the Authority has applied section 7106(a) in two contexts, both which involve the ability of unions, through the bargaining process, to affect the exercise of management's rights. Most frequently section 7106(a) is applied as a direct limit on the scope of bargaining. That is, bargaining proposals or contract provisions will be found, in certain circumstances, to be outside an agency's obligation to bargain if they impermissibly affect the exercise of any of the enumerated rights of section 7106(a). See, e.g., National Association of Government Employees, Locals [ v55 p1258 ] R5-136 and R5-150 and U.S. Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, South Carolina, 55 FLRA 679, 682-84 (1999). In addition, section 7106(a) may act as a limit on remedies issued by arbitrators. See U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). Unlike the Authority, whose remedial powers are based on statute, the authority of arbitrators is a product of the collective bargaining agreement. As the provisions of a collective bargaining agreement cannot impermissibly affect managements rights, neither could a ruling of an arbitrator acting on the authority of such an agreement. [n13] In each context, 7106(a) operates as a limit on the ability of unions, through the bargaining process, to affect the exercise of management rights.
We recognize that in Internal Revenue Service v. FLRA, 494 U.S. 922, 928 (1990) (IRS v. FLRA), the Supreme Court emphasized Congress's use of the phrase "nothing in this chapter" in section 7106 in holding that the provisions of section 7121 of the Statute are subject to the command of section 7106. However, we do not believe that the decision in IRS v. FLRA is inconsistent with the view that section 7106 is intended only as a limit on the scope of bargaining. IRS v. FLRA was a review of an Authority negotiability determination and the question before the Court was whether the agency was obligated to bargain over proposals that would subject certain decisions concerning contracting out to the negotiated grievance and arbitration procedure. In finding the proposal to be outside the agency's obligation to bargain, the Court concluded that unions could not rely on other sections of the Statute to render negotiable a proposal that otherwise interfered with a right enumerated in section 7106(a). 494 U.S. at 928-32. However, the Court only analyzed section 7106(a) in the context of the obligation to bargain question presented in that case.
(2) Congress Intended to Provide the Authority with Broad Remedial Powers
It is in section 7118(a)(7) -- not section 7106 -- where Congress speaks specifically to the scope of the Authority's remedial power in unfair labor practice cases. That section sets forth certain specific remedies and grants authority to order "such other action as will carry out the purposes of this chapter." Thus, the broad grant of remedial power is tempered only by reference to the purpose of the Statute, which embodies the balance of interests between and among employees, unions, and agencies. No other limitations are expressed. The breadth of the Authority's remedial power in unfair labor practice cases has been recognized in a variety of contexts. See United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 444 (1990) (Safford) (citing Professional Air Traffic Controllers Organization v. FLRA, 685 F.2d 547 (D.C. Cir. 1982)); see also National Treasury Employees Union v. FLRA, 910 F.2d 964, 967 (D.C. Cir. 1990) (en banc). The United States Court of Appeals for the D.C. Circuit has found that Congress intended the Authority to have remedial authority in unfair labor practice cases similar to that granted the NLRB under the National Labor Relations Act. American Federation of Government Employees v. FLRA, 785 F.2d 333, 336 (D.C. Cir. 1986) (AFGE v. FLRA).
Interpreting section 7106(a) as a direct limit on the Authority's remedial powers would be inconsistent with Congress's clear intent to provide the Authority with broad remedial authority. See United States v. Menasche, 348 U.S. 528, 538-39 (1955) ("It is our duty 'to give effect, if possible, to every clause and word of a statute,' Inhabitants of Montclair Tp. v. Ramsdell, 107 U.S. 147, 152 . . . rather than to emasculate an entire section, as the Government's interpretation requires."); see also Clark v. Uebersee Finanz-Korporation, A.G., 332 U.S. 480, 488-89 (1947) (court cannot "impute to Congress a purpose to paralyze with one hand what it sought to promote with the other).
Drawing on private sector precedent, the Authority has identified as the essential purposes of its remedial authority to restore, so far as possible, the status quo that would have obtained but for the wrongful act and to deter future misconduct. Department of Defense Dependents Schools, 54 FLRA 259, 269 (1998) (citing NLRB v. J.H. Rutter-Rex Manufacturing Co., 396 U.S. 258, 265 (1969), and Local 60, United Brotherhood of Carpenters and Joiners v. NLRB, 365 U.S. 651, 659 (1961)). If section 7106 were to be applied in the manner the Respondents urge here, the Authority would be hampered in its ability to order such relief and deter such conduct in the future. [n14]
Turning to the present case, if section 7106(a) were read to limit the posting remedy, the Authority would be denied the power to exercise its discretion in adequately remedying the violation. The Authority has recognized that a component of recreating the conditions and relationships that would have been had there been no unfair labor practice is "promoting employee [ v55 p1259 ] confidence in the rights and procedures established by the Statute." Safford, 35 FLRA at 448. Directing a specific high-ranking official to take certain actions is a recognized and approved method of remedying violations of the Statute. See NASA v. FLRA, 119 S. Ct. 1979, 1989 (1999) (upholding Authority's order that agency head direct Inspector General to comply with section 7114(a)(2)(B) of the Statute). To limit the Authority's ability to fashion such a remedy would frustrate the Authority's duty to vindicate the policies of the Statute. See AFGE v. FLRA, 785 F.2d at 338.
(3) The Authority's Remedial Practices Are Consistent with the Purposes and Policies of the Statute
Although section 7106(a) does not act as a limitation on unfair labor practice remedies, the Statute requires that remedies must "effectuate the policies of the Statute." F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 160 (1996). For example, the Authority has found that remedies may not be punitive. Id. Further, nontraditional remedies will be fashioned only where traditional remedies will not "adequately redress the wrong incurred by the unfair labor practice." NOAA, 54 FLRA at 1021-22 (finding that an order to discipline specific supervisors not required to remedy unfair labor practice).
From its inception, the Authority has established remedial principles specifically tailored to the requirements of the federal sector. Recognizing Congress's dictate that the Statute be interpreted in a manner consistent with an effective and efficient government, the Authority applies a balancing test to determine if status quo ante (SQA) remedies are appropriate in cases where agencies have exercised their reserved rights without completing their obligation to bargain the impact and implementation of that exercise. Federal Correctional Institution, 8 FLRA 604, 606 (1982) (FCI). In these cases the Authority balances the nature and circumstances of the particular violation and the degree of disruption to government operations that would be caused by an SQA remedy. Id. The D.C. Circuit has found that the FCI test "respects management's statutory authority" when government efficiency is truly jeopardized and constitutes a reasonable framework for reconciling competing statutory purposes. AFGE, SSA Council 220, AFL-CIO v. FLRA, 840 F.2d 925, 929 (D.C. Cir. 1988).
In short, rather than simply directing make-whole remedies in a mechanistic fashion in all cases where a statutory violation has occurred, the Authority has instead adopted a measured approach that considers the totality of the circumstances, including both employee rights and government operations. See, e.g., Safford, 35 FLRA at 447 (Where representation rights under section 7114(a)(2)(B) have been violated and an employee has subsequently been disciplined, the Authority will not order the agency to rescind the disciplinary action. Rather the Authority will order the agency to repeat the investigative interview with full representation rights, and in light of the results of the interview, reconsider any disciplinary action taken against the employee). As the cases cited herein demonstrate, the Authority has exercised its remedial power in a manner that "will protect employee rights and promote the efficiency of government[.]" Safford, 35 FLRA 448.
b. Respondents Have Not Demonstrated That the Recommended Remedy Would Interfere with its Right to Assign Work
Even if we were to conclude that Authority remedial orders were subject to a management's rights analysis analogous to that employed in negotiability cases, Respondents have not demonstrated that requiring the Bureau's Director to sign the posting would interfere with the right to assign work under section 7106(a)(2)(B) of the Statute.
Respondents cite only Laurel Bay Teachers, 51 FLRA at 739 to support their argument that the requiring the Bureau's Director to sign the posting interferes with their management right to assign work. However, the proposal at issue in that case did not require the assignment of a duty to a particular person or position. Id. Rather, the proposal there would have authorized teachers to leave work under specified circumstances. The Authority found the proposal interfered with the [ v55 p1260 ] right to assign work because it would have prohibited the assignment of duties under those circumstances. Id. As such, Laurel Bay Teachers does not support the Respondent's assertion or the conclusion that the recommended remedy affects the section 7106(a)(2)(B) right to assign work.
We are unaware of any case where the Authority has considered, in a negotiability case, a proposal or provision involving the signing of an occasional, nonrecurring document such as the unfair labor practice notice at issue in this case. We note in this regard that finding an effect on management's right is not necessarily dispositive of negotiability in light of section 7106(b)(2) and (3).
Additionally, we also note that prior precedent has stated that matters "merely incidental to the accomplishment of the Agency's mission and functions" do not affect management's section 7106(a) rights. See National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 715 (1990); cf. National Treasury Employees Union v. FLRA, 793 F.2d 371, 374 (D.C. Cir. 1986) (The term "assign work" was "not meant to be so expansive as to include whatever is useful for getting the agency's work done in a particular manner of priority, but [was] rather [a] description of a precise, defined management activity."). As such, the specific requirement that the Director of the Bureau sign the posting is principally related to the protection of the employees' statutory rights and not the accomplishment of the agency's mission. As the Authority has found, the purpose of such a requirement is to "signif[y] that the Respondent acknowledges its obligations under the Statute and intends to comply with those obligations." U.S. Department of Veterans Affairs, Washington, D.C., 48 FLRA 1400, 1402 (1994) (internal quotation marks omitted).
If the Respondent's argument here were carried to its illogical extreme, the Authority could never direct any particular management official to ever sign any notice or, for that matter, take any remedial action whatsoever. For reasons noted above, such an illogical interpretation finds no support in the Statute and would be inconsistent with remedial authority we have previously exercised. See U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA 704, 721 (1999) (Authority directed a meeting of all employees wherein the Warden would either read, or be present during the reading of, a remedial unfair labor practice notice.)
Accordingly, we conclude that even if section 7106(a) were to limit the remedial powers of the Authority, it is not clear that we would find that the recommended order in this case would interfere with the right to assign work under section 7106(a)(2)(B).
Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Bureau of Prisons, Washington, D.C. and the Federal Bureau of Prisons, South Central Regional Office, Dallas, Texas, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the American Federation of Government Employees, AFL-CIO, Local 171 (the Union) with the nationwide and regional information requested by the Union on June 20, 1996.
(b) In any like or related manner interfering with, restraining or coercing bargaining unit employees in the exercise of their rights assured them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Upon request, furnish the Union with the nationwide and regional information requested by it on June 20, 1996 in connection with a local grievance.
(b) Post at all facilities throughout the United States where bargaining unit employees are located, including, but not limited to, all facilities within the South Central Regional Office, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Federal Bureau of Prisons 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 section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Dallas Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v55 p1261 ]
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Federal Bureau of Prisons and the Federal Bureau of Prisons, South Central Regional Office violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify bargaining unit employees that:
WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, AFL-CIO, Local 171 (the Union) with the nationwide and regional information requested by the Union on June 20, 1996.
WE WILL NOT in any like or related manner interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured them by the Statute.
WE WILL, upon request, furnish the Union with the nationwide and regional information requested by it on June 20, 1996 in connection with a local grievance.
Date: ___________ By: ____________________
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 Region, Federal Labor Relations Authority, Federal Office Building, 525 Griffin Street, Suite 926, Dallas, TX 75202-1906, and whose telephone number is: (214) 767-4996.
Footnote # 1 for 55 FLRA No. 202 - Authority's Decision
Footnote # 2 for 55 FLRA No. 202 - Authority's Decision
No exceptions were filed to this finding and we adopt it without precedential significance pursuant to section 2423.41 of the Authority's Regulations. See U.S. Penitentiary, Florence, Colorado, 54 FLRA 30, 31 n.* (1998). This regulatory provision, which concerns the Authority's action on judges' decisions, was amended in 1997. With respect to precedential significance, the provision is substantively identical to 5 C.F.R. § 2423.29, which was previously in effect. As section 2423.41 applies to all unfair labor practice complaints pending after October 1, 1997, it is applicable here. See 62 Fed. Reg. 40,922, 46,175 (1997).
Footnote # 3 for 55 FLRA No. 202 - Authority's Decision
Footnote # 4 for 55 FLRA No. 202 - Authority's Decision
Although not specifically addressed in previous Authority decisions, the same reasoning responds to the Respondent's argument concerning the applicability of EEOC precedent. EEOC hearings, like those before the MSPB, typically involve individual employee rights and do not implicate nationwide collective bargaining provisions and concerns like those at issue here.
Footnote # 5 for 55 FLRA No. 202 - Authority's Decision
We note that our dissenting colleague characterizes the Authority's test as "no longer appropriate" based on the Fifth Circuit's decision in DOJ v. FLRA. However, judicial review and reversal by a United States Court of Appeals does not, in and of itself, invalidate an Authority interpretation of the Statute. See, e.g., Headquarters, National Aeronautics and Space Administration, Washington, D.C. and National Aeronautics and Space Administration, Office of the Inspector General, Washington, D.C., 50 FLRA 601, 612-14 (1995), enforced 120 F.3d 1208 (11th Cir. 1997), aff'd ___ U.S. ___, 119 S. Ct. 1979 (1999) (Authority declined to follow the D.C. Circuit's interpretation of section 7114(a)(2)(B) of the Statute as it pertained to representatives of an agency). Given the uncertain venue provision in section 7123 of the Statute, the Authority can never know whether or where its determinations will be reviewed. As such, the Statute "does not contemplate that the law of a single circuit would exclusively apply in any given case." Arvin Automotive, 285 NLRB 753, 757 (1987) (commenting on substantially identical judicial review provisions in the National Labor Relations Act).
Footnote # 6 for 55 FLRA No. 202 - Authority's Decision
Footnote # 7 for 55 FLRA No. 202 - Authority's Decision
Footnote # 8 for 55 FLRA No. 202 - Authority's Decision
Our dissenting colleague also describes the General Counsel's evidence as "thin." Whether this evidence is sufficient depends on the existence and weight of contrary evidence. See Greenwich Collieries v. Director, Office of Workers' Compensation Programs , 990 F.2d 730, 736 (3d Cir. 1993), aff'd 512 U.S. 246 (1994) (preponderance of the evidence is "evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it") (internal quotes omitted). In light of the absence of any contrary evidence, the General Counsel's evidence meets this standard. See Black's Law Dictionary 1201 (7th ed. 1999) (preponderance of evidence is the stronger evidence, "however slight the edge may be").
Footnote # 9 for 55 FLRA No. 202 - Authority's Decision
See DOJ v. FLRA, 991 F.2d at 292 ("in evaluating the reasonable availability of documents, the FLRA should focus primarily on the efforts required to make the documents available, including costs and displacement of the agency's workforce").
Footnote # 10 for 55 FLRA No. 202 - Authority's Decision
Although the Bureau responded that the request should have been filed with the Activity, this response was premised on the Bureau's assertion that the request was "related to a local disciplinary matter[.]" Jt. Ex. 8. Nothing in the Bureau's response suggests a procedural bar to a request at that level.
Footnote # 11 for 55 FLRA No. 202 - Authority's Decision
Respondent cites Laurel Bay Teachers, 51 FLRA at 739. In that negotiability case, the Authority found a contract provision which limited management's ability to assign work to teachers during a scheduled "conference week" interfered with the right to assign work under section 7106(a)(2)(B) of the Statute.
Footnote # 12 for 55 FLRA No. 202 - Authority's Decision
§ 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-
. . . .
(2) in accordance with applicable laws-
. . . .
(B) to assign work . . . ;
(C) with respect to filling positions, to make selections for appointments
. . .
(b) Nothing in this section shall preclude any agency and any labor organization from negotiating-
(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;
(2) procedures which management officials of the agency will observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.
Footnote # 13 for 55 FLRA No. 202 - Authority's Decision
Footnote # 14 for 55 FLRA No. 202 - Authority's Decision
Although this case involves only the potential impact of section 7106 on remedies, the implications of this analysis are equally applicable to an underlying statutory violation. For example, it is an unfair labor practice to discipline an employee for the exercise of rights protected under section 7102 of the Statute. See, e.g., U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodetic Survey, Aeronautical Charting Division, Washington, D.C., 54 FLRA 987, 1009-11 (1998) (NOAA). But if the section 7106(a) right to discipline predominates over all other sections of the Statute, then it would follow that section 7102 could not limit the ability of an agency to discipline an employee. Similarly, the Authority has held that investigatory techniques are within the scope of the agency's right to determine its internal security practices. See American Federation of Government Employees, Federal Prison Council 33 and U.S. Department of Justice, Federal Bureau of Prisons, 51 FLRA 1112, 1115-16 (1996). But, again, if the management right predominates, then that right would, at least in theory, negate the Weingarten right to representation under section 7114(a)(2)(B). In our view, section 7106 cannot be read as being so dominant that it negates congressionally-mandated, fundamental rights found in other parts of the Statute.