No. 99-1293
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_______________________________
FEDERAL LABOR RELATIONS AUTHORITY ,
Petitioner
v.
PUERTO RICO NATIONAL GUARD,
PUERTO RICO AIR NATIONAL GUARD,
SAN JUAN, PUERTO RICO,
Respondent
_______________________________
ON APPLICATION FOR ENFORCEMENT OF AN ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JAMES F. BLANDFORD
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUES 2
STATEMENT OF THE CASE 2
I. Nature of the Case 2
II. Background 3
A. The Federal Service Labor-Management Relations Statute 3
B. Statement of the Facts 5
C. The ALJ's decision and recommended order 7
D. The Authority's Order 8
STANDARD OF REVIEW 9
SUMMARY OF ARGUMENT 10
ARGUMENT 14
I. The Puerto Rico National Guard committed unfair labor practices by
repudiating a Memorandum of Understanding providing for the
establishment of a compressed work schedule 15
A. This Court is without jurisdiction to consider the Guard's
defense to the ULPs 16
1. This Court is without jurisdiction to consider any
objection not made to the Authority, absent
extraordinary circumstances 16
2. Neither "extraordinary circumstances" nor any other
factor permits the Guard to assert before this
Court its "impossibility" defense to the ULPs 19
a. Pursuing the "impossibility" defense to the ULPs
was not futile 20
b. The Court's "equitable authority" cannot override
section 7123(c)'s jurisdictional bar to further
challenges to the Authority's ULP determination 22
3. The Guard's communications during the compliance
phase of this case did not preserve the Guard's
"impossibility" defense as an issue for judicial
review 23
4. Judicial precedent cited by the Guard is inapposite 25
B. Even if the Court considers the Guard's "impossibility"
defense, the Court should uphold the Authority's decision 28
1. The Guard had no basis in March 1997 for
anticipating workload differences sufficient to
render implementation of the MOU "impossible" 29
2. Even if workload differences could have been
anticipated, such differences would not have
made it "impossible" to implement the MOU 30
II. Circumstances occurring after the Authority issued its order have
not rendered enforcement of the Authority's order inappropriate 32
A. Implementation of the MOU is neither "impossible" nor
meaningless 32
B. The circumstances occurring subsequent to the
Authority's order do not constitute "extraordinary
circumstances" 35
C. Precedent does not support denying the Authority's
Application for Enforcement 36
CONCLUSION 38
ADDENDUM
Relevant portions of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997)
and other pertinent statutory provisions A-1
TABLE OF AUTHORITIES
AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 9
Bureau of Alcohol, Tobacco and Firearms v. FLRA, , 464 U.S. 89
(1983) 3, 4, 10
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) 9, 10
Department of Health and Human Servs. v. FLRA, 976 F.2d 1409
(D.C. Cir. 1992) 28, 33
Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA, 854 F.2d 1
(1st Cir. 1988) 4, 9
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) 19
EEOC v. FLRA, 476 U.S. 19 (1986) 16, 17
FLRA v. Department of Justice, 137 F.3d 683 (2d Cir. 1998), vacated,
119 S. Ct. 2387 (1999) 20
FLRA v. United States Dep't of Commerce, 962 F.2d 1055
(D.C. Cir. 1992) 25, 26
FLRA v. United States Dep't of Justice, 994 F.2d 868 (D.C. Cir 1993) 26, 27
Georgia State Chapter, Ass'n of Civilian Technicians v. FLRA,
184 F.3d 889 (D.C. Cir. 1999) 17
Illinois National Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988) 5
KBI Security Serv., Inc. v. NLRB, 91 F.3d 291 (2d Cir. 1996) 19, 37
Local Union No. 25, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen
and Helpers of Am. v. NLRB, 831 F.2d 1149 (1st Cir. 1987) 18
NLRB v. C&C Plywood, 385 U.S. 421 (1967) 31
NLRB v. Dominick's Finer Foods, Inc., 28 F.3d 678 (7th Cir. 1994) 24
NLRB v FLRA, 2 F.3d. 1190 (D.C. Cir. 1993) 17, 20, 27
NLRB v. Greensboro News & Record, 843 F.2d 795
(4th Cir. 1988) 36, 37, 38
NLRB v. Howard Immel, Inc., 102 F.3d 948 (7th Cir. 1996) 19
NLRB v. Izzi, 343 F.2d 753 (1st Cir. 1965) 18
NLRB v. Maywood Plant of Grede Plastics, 628 F.2d 1
(D.C. Cir. 1980) 33, 36, 37
NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318 (1961) 23
NLRB v. Tri-State Warehouse & Distributing, Inc., 677 F.2d 31
(6th Cir. 1982) 19
NLRB v. Union Carbide Caribe, Inc., 423 F.2d 231 (1st Cir. 1970) 17
Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) 9
Overseas Educ. Ass'n, Inc. v. FLRA, 961 F.2d 36 (2d Cir. 1992) 20, 22
Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998) 10
Union de la Construccion de Concreto y Equipo Pesado v. NLRB,
10 F.3d 14 (1st Cir. 1993) 17
United States v. L.A. Tucker Truck Lines, 344 U.S. 33 (1952) 21
Van Dorn Plastic Machinery Co. v. NLRB, 881 F.2d 302 (6th Cir. 1989) 21
Washington Ass'n for Television & Children v. FCC, 712 F.2d 677
(D.C. Cir. 1983) 21
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Department of Veterans Affairs, Veterans Affairs Medical Ctr., Jackson,
MS, 49 FLRA 171 (1994), pet. for review denied, 73 F.3d 390
(D.C. Cir. 1996) 36
Internal Revenue Serv., Washington, D.C., 47 FLRA 1091 (1993) 31
STATUTES
Federal Service Labor- Management Relations Statute, 5 U.S.C. §§ 7101-7135
(1994 & Supp. III 1997) 2
5 U.S.C. § 7105(a)(1) 3
5 U.S.C. § 7105(a)(2) 3
5 U.S.C. § 7105(a)(2)(G) 2
5 U.S.C. § 7105(a)(2)(I) 4
5 U.S.C. § 7116(a)(1) 2, 4, 7
5 U.S.C. § 7116(a)(5) 2, 4, 7
5 U.S.C. § 7118 2
5 U.S.C. § 7123(a) 26
5 U.S.C. § 7123(b) 2, 26
5 U.S.C. § 7123(c) passim
5 U.S.C. § 706(2)(A) 9
National Labor Relations Act, 29 U.S.C. § 160(e) passim
CODE OF FEDERAL REGULATIONS
5 C.F.R. §§ 2423.30-2423.41 18
5 C.F.R. § 2423.41 9, 18, 24, 33
5 C.F.R. § 2423.41(a) 3
29 C.F.R. § 101.10 .... 18
29 C.F.R. § 101.12 18
29 C.F.R. § 101.12(b) 18
LEGISLATIVE HISTORY
S. Rep. No. 95-969 at 106 (1978), reprinted in 1978 U.S.C.C.A.N.
2723, 2828 18
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 99-1293
_______________________________
FEDERAL LABOR RELATIONS AUTHORITY,
Petitioner
v.
PUERTO RICO NATIONAL GUARD,
PUERTO RICO AIR NATIONAL GUARD,
SAN JUAN, PUERTO RICO,
Respondent
_______________________________
ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The final decision and order under review in this case was issued by the
Federal Labor Relations Authority ("FLRA" or "Authority") in Puerto Rico
National Guard, Puerto Rico Air National Guard, San Juan, Puerto Rico, No.
AT-CA-70505 (May 15, 1998). Joint Appendix (JA) 165. The Authority
exercised jurisdiction over the case pursuant to section 7105(a)(2)(G) of
the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§
7101-7135 (1994 & Supp. III 1997) (Statute).[1]
This Court has jurisdiction to enforce the Authority's decisions and orders
pursuant to section 7123(b) of the Statute.
STATEMENT OF THE ISSUES
I. Whether the Puerto Rico National Guard committed unfair labor practices by
repudiating a Memorandum of Understanding providing for the establishment of a
compressed work schedule.
II. Whether circumstances occurring after the Authority issued its order render
enforcement of the Authority's order inappropriate.
STATEMENT OF THE CASE
I. Nature of the Case
This case arose as an unfair labor practice (ULP) proceeding brought under
section 7118 of the Statute. The American Federation of Government
Employees, Local 3936 (union) filed a charge with the Authority's General
Counsel alleging that the Puerto Rico National Guard (Guard) violated
section 7116(a)(1) and (5) of the Statute by repudiating a Memorandum of
Understanding (MOU) providing for the implementation of a compressed work
schedule. JA 77. The General Counsel issued a complaint and a hearing was
held before an Authority Administrative Law Judge (ALJ). The ALJ found that
the Guard violated the Statute as alleged and recommended that the Authority
order the Guard to cease and desist from its illegal activity, implement the
provisions of the MOU, and post a notice to all employees. JA 151-64. The
Guard did not file exceptions to the ALJ's decision and recommended remedial
order. Pursuant to section 2423.41(a) of the Authority's regulations (5
C.F.R. § 2423.41(a) (1999)), the ALJ's findings, conclusions, and
recommendations became, without precedential significance, the findings,
conclusions, and decision and order of the Authority. JA 165.
The Guard has failed to comply with the Authority's remedial order and the
Authority now seeks to have that order enforced.
II. Background
A. The Federal Service Labor-Management Relations Statute
The Statute governs labor-management relations in the federal service.
Under the Statute, the responsibilities of the Authority include
adjudicating unfair labor practice complaints, negotiability disputes,
bargaining unit and representation election matters, and resolving
exceptions to arbitration awards. See 5 U.S.C. § 7105(a)(1), (2); see also
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 93 (1983)
(BATF). The Authority thus ensures compliance with the statutory rights and
obligations of federal employees, labor organizations that represent such
federal employees, and federal agencies. The Authority is further empowered
to take such actions as are necessary and appropriate to effectively
administer the Statute's provisions. See 5 U.S.C. § 7105(a)(2)(I); BATF,
464 U.S. at 92-93.
The Authority performs a role analogous to that of the National Labor
Relations Board (NLRB) in the private sector. See BATF, 464 U.S. at 92-93;
Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA, 854 F.2d 1, 2
(1st Cir. 1988). Congress intended the Authority, like the NLRB, "to
develop specialized expertise in its field of labor relations and to use
that expertise to give content to the principles and goals set forth in the
[Statute]." BATF, 464 U.S. at 97.
The Statute makes it a ULP for a federal agency employer to, among other
things, "interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under [the Statute]," or to refuse to "negotiate
in good faith." 5 U.S.C. § 7116(a)(1) and (5). In this case, the Guard was
alleged to have repudiated a collective bargaining agreement, a violation of
section 7116(a)(1) and (5).
B. Statement of the Facts
The union is the certified exclusive collective bargaining representative
for a unit of employees of the Guard, including maintenance personnel at
Muniz Air Force Base (Muniz AFB). JA 152. In October 1991, the union and
the Guard entered into an agreement providing that they would postpone
negotiations over alternative work schedules (AWS) until the Guard's
completion of conversion to a new type of aircraft.[2] JA 152. In July
1993, the conversion period ended, but rather than begin negotiations, the
Guard informed the union that it would not implement an AWS. JA 153. The
union filed a ULP charge with the Authority, but the case was settled when
the Guard agreed to begin negotiations by December 1994. JA 153-54.
Pursuant to that agreement, the union submitted proposals for a CWS. In
response, the Guard stated that such a schedule would adversely affect its
operations and that the work schedules should not change. The Guard
submitted no other counterproposals. The union filed another ULP charge
alleging that the Guard illegally refused to bargain. This case was also
settled when the Guard again agreed to negotiate, this time with the
assistance of a mediator. JA 154.
In October 1996, the union and the Guard finally negotiated and executed an
MOU providing for a CWS consisting of four 10-hour days per week. JA
154-55. The CWS was to be implemented for a 6-month period beginning in
March of 1997. JA 155. The MOU also provided that the parties would keep
in "constant communication in order to fine tune the process as it evolves."
Id. At the end of the 6-month period, the CWS would be evaluated based on
"indicators" taking into account the CWS's effect on productivity,
absenteeism, morale, safety, and cost savings to the government. JA 155-56.
The baseline to which the effects of the CWS would be compared was the
Guard's experience in these areas in "the last year." JA 156.
The MOU provided no limitations on the implementation of the MOU. However,
it did provide that the Adjutant General of Puerto Rico could unilaterally
terminate the CWS at any time based on the determination that it "has become
an obstacle for the accomplishment of the military mission" and "[i]n the
work areas where the number of employees do not allow [sic] to implement a
[CWS] schedule." JA 155. Although the MOU itself provided no reasons why
the implementation was to be delayed for five months, the union
representatives testified that they agreed to postpone implementation until
the completion of an organizational readiness inspection (ORI) scheduled for
March 1997. JA 156. These same representatives, the only witnesses present
at the negotiations, testified that implementation of the MOU was not
contingent on passing the inspection or any other circumstances. Id.
The ORI was conducted in March 1997, and the Guard failed the inspection.
JA 157. The Guard did not implement the agreed upon CWS nor did it
communicate with the union concerning its intentions not to do so. Id.
When the union inquired into the matter, it was informed that the CWS would
not be implemented.[3] Id. In May 1997, the union filed the ULP charge
that forms the basis of this case. JA 77. Based on the charge, the
Authority's General Counsel issued a complaint and the case was heard before
an ALJ. JA 80-83.
C. The ALJ's decision and recommended order
After a one-day hearing and consideration of both parties' briefs, the ALJ
found that the Guard had repudiated the MOU and thereby violated sections
7116(a)(1) and (5) of the Statute. JA 160.
As relevant here, the ALJ rejected the Guard's contention that there was "an
unarticulated premise" of the MOU that the Guard was going to pass the ORI
and that base operations would remain unchanged. JA 159. The ALJ noted
that two union representatives, both of whom took part in the negotiation of
the MOU, testified that there were no contingencies, explicit or implied,
that would prohibit implementation of the MOU. The ALJ also observed that
the Guard's only witness did not participate in the negotiations and was
unable to testify as to what occurred or was said at the bargaining
sessions. JA 160. In addition, the ALJ noted that as a matter of fact,
during the scheduled 6-month period (March to September 1997) there had been
no change in the aircraft assigned to Muniz Air Force Base. For all these
reasons, the ALJ concluded that the Guard impermissibly failed to implement
the agreed-upon CWS and violated the Statute as alleged. Id. The ALJ
recommended that the Authority order the Guard to cease and desist from its
unlawful conduct, to implement a CWS as provided for in the MOU, and to post
an appropriate notice. JA 161-62.
D. The Authority's Order
The ALJ transmitted his decision and recommended order to the Authority and
the parties on April 6, 1998. The transmittal informed the parties of the
regulatory provisions that govern the filing of exceptions. JA 150.
However, the Guard chose not to file exceptions to the ALJ's decision.
Accordingly, pursuant to section 2423.41 of its regulations (5 C.F.R. §
2423.41), and in the absence of exceptions, the Authority issued its order
dated May 15, 1998, adopting as its own the ALJ's findings, conclusions, and
recommended order. JA 165.
The Guard refused to comply with any portion of the Authority's order. On
February 5, 1999, after two attempts by the appropriate regional offices of
the Authority to ascertain whether the compliance would be effectuated, the
Guard responded, claiming again that changed operational circumstances
rendered implementation of the CWS impossible. JA 174-75.
STANDARD OF REVIEW
The standard of review of Authority decisions is "narrow." AFGE, Local 2343
v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998). Authority action shall be set
aside only if "arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law." 5 U.S.C. § 7123(c), incorporating 5 U.S.C. §
706(2)(A); Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA, 854
F.2d at 2; Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769, 771-72 (D.C.
Cir. 1988). Under this standard, unless it appears from the Statute or its
legislative history that the Authority's construction of its enabling act is
not one that Congress would have sanctioned, the Authority's construction
should be upheld. See Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 844 (1984). A court should defer to the
Authority's construction as long as it is reasonable. See id. at 845.
Further, as the Supreme Court has stated, the Authority is entitled to
"considerable deference" when it exercises its "'special function of
applying the general provisions of the [Statute] to the complexities' of
federal labor relations." BATF, 464 U.S. at 97.
Factual findings of the Authority that are supported by substantial evidence
on the record as a whole are conclusive. See 5 U.S.C. § 7123(c); Power v.
FLRA, 146 F.3d 995, 1000 (D.C. Cir. 1998) (Power). The Authority is
entitled to have reasonable inferences it draws from its findings of fact
not be displaced, even if the court might have reached a different view had
the matter been before the court de novo. Power, 146 F.3d at 1001.
SUMMARY OF ARGUMENT
This case raises two distinct issues, which unfortunately the Guard's brief
tends to conflate. The first is whether the Guard committed ULPs by
repudiating the MOU establishing a CWS. The second is whether circumstances
arising subsequent to the Authority's decision render enforcement of the
Authority's order inappropriate. For the reasons discussed in the
Authority's brief, the Court should affirm the Authority's decision and
enforce its order in its entirety.
I. The Court should affirm the Authority's conclusion that the Guard committed
ULPs because: A) the Guard's contentions in this regard are not within the
Court's jurisdiction to consider as the Guard did not urge them before the
Authority; and B) in any event, the Authority's decision is supported by
substantial evidence.
A. Before the Authority's ALJ, the Guard contended that it did not
repudiate the MOU because implementation was impossible at the time the CWS
was to be established. However, the Guard failed to file exceptions to the
ALJ's decision and recommended order and, therefore, never presented its
defenses to the Authority. Section 7123(c) of the Statute provides that
"[n]o objection that has not been urged before the Authority, or its
designee, shall be considered by the court, unless the failure or neglect to
urge the objection is excused because of extraordinary circumstances." In
interpreting the virtually identical provision of the National Labor
Relations Act, 29 U.S.C. § 160(e), this and other courts of appeals have
held that they lack jurisdiction to entertain an objection to an ALJ's
recommendation that was not excepted to before the Board.
Further, and contrary to the Guard's contentions, neither "extraordinary
circumstances" nor any other factor exists that would permit the Court to
consider the Guard's arguments. First, the Guard cannot establish that
filing exceptions would have been futile. Futility excuses a party from
urging an objection before the Authority only when the Authority's position
on a matter is deeply rooted and well documented, a situation not present
here.
Second, to the extent the Guard argues that the Court's "equitable
authority" to modify the Authority's order overrides the jurisdictional bar
raised by section 7123(c), those arguments are without merit. The Court may
employ such authority to consider circumstances at the time enforcement is
sought bearing on the appropriateness of enforcing the Authority's order,
but this does not imply that the Court may also consider defenses to the
underlying ULP determination abandoned by the Guard in the administrative
proceeding below.
Third, the Authority was not, as asserted by the Guard, presented with the
Guard's "impossibility" defense. The Guard's letter of February 5, 1999, to
the Authority's Boston Regional Attorney contending that compliance with the
Authority's order was impossible did not constitute urging an objection to
the Authority pursuant to section 7123(c).
B. The ALJ's determination that the Guard committed ULPs by repudiating
the MOU is reasonable and supported by substantial evidence. First, the
premise on which the Guard's position is based, that the Guard could and did
anticipate in March 1997 that its workload during the 6-month CWS period
would be "out of kilter" with the baseline workload, is not supported by the
record. In that regard, the record indicates little more than that a change
in the aircraft assigned to Muniz AFB could be expected at some indefinite
time in the future.
Second, even if it were assumed that some workload differences could be
anticipated, that alone would neither have been inconsistent with the MOU,
nor sufficient to render the 6-month CWS period "meaningless." As the ALJ
found, nothing in the MOU, express or implied, permitted the Guard
unilaterally to refuse to implement the CWS. Moreover, even if workload
changes might have affected how the evaluation of the 6-month CWS period was
carried out, that alone would not necessarily have made the trial period
"meaningless."
For these reasons, the Court should affirm the Authority's determination
that the Guard committed ULPs in this case.
II. The Guard has not demonstrated that current circumstances render
implementation of any portion of the Authority's order impossible, meaningless,
or otherwise inequitable. In the first place, the circumstances alleged by the
Guard to be relevant are, to a large extent, a continuation of those
circumstances presented to the ALJ as part of the Guard's defense to the
underlying ULP. As discussed above, those matters are not properly before the
Court.
Similarly, the circumstances that the Guard claims developed after the
issuance of the Authority's order do not make it inappropriate to enforce
the Authority's order. The Guard does not assert that these circumstances
prohibit the establishment of a CWS. In addition, it has not been
demonstrated that a 6-month CWS period would be "meaningless" even if it
were necessary to take into account workload changes to meaningfully compare
the CWS period with the MOU's baseline period.
Accordingly, the Authority's order should be enforced in its entirety.
ARGUMENT
The Court should uphold the Authority's decision that the Guard committed
ULPs and should enforce the Authority's remedial order in full. The
Authority's argument is divided into two parts. As discussed in section I.,
below, the Court should reject the Guard's challenge to the Authority's
determination that the Guard committed ULPs when it repudiated its MOU. The
Guard's contentions are not within the Court's jurisdiction to consider
because the Guard did not urge them before the Authority. Moreover, the
core of the Guard's direct challenge to the Authority's ULP finding, that
the MOU was impossible to implement in March 1997 because of circumstances
existing at that time, is untenable.
The second section of the Authority's argument deals with the Guard's
objections to the Authority's remedial order based on circumstances that
allegedly developed subsequent to the Authority's decision. As discussed in
section II., below, the Guard's additional objections neither supply any
reason making it inappropriate to enforce the Authority's order in full, nor
do they constitute "extraordinary circumstances" permitting a reexamination
of the merits of the Authority's ULP determination.
I. The Puerto Rico National Guard committed unfair labor practices by
repudiating a Memorandum of Understanding providing for the establishment of a
compressed work schedule
The Guard does not dispute that it entered into a binding agreement with the
union to establish a CWS for a 6-month period to begin in March 1997. The
Guard also does not dispute that it did not implement the CWS. The Guard's
only contention regarding the merits of the Authority's ULP determination is
that it "did not repudiate the MOU" because the Guard "was simply unable to
conduct the kind of meaningful trial period that the MOU contemplated."
Brief (Br.) at 13. This contention, that compliance with the MOU was
"futile" or "impossible," is not within the Court's jurisdiction to
consider, and in any event is unfounded and should be rejected.[4]
A. This Court is without jurisdiction to consider the Guard's defense to the
ULPs
1. This Court is without jurisdiction to consider any objection not made to
the Authority, absent extraordinary circumstances
It is undisputed that the Guard failed to raise any objections to the
decision of the ALJ with the Authority, either through exceptions or through
a request for reconsideration of the Authority's decision and order. As
explained by the Authority in its Application for Summary Enforcement JA
179-81, section 7123(c) of the Statute provides, as here pertinent, that
"[n]o objection that has not been urged before the Authority, or its
designee, shall be considered by the court, unless the failure or neglect to
urge the objection is excused because of extraordinary circumstances." 5
U.S.C. § 7123(c). In EEOC v. FLRA, 476 U.S. 19, 23 (1986) (EEOC), the
Supreme Court explained that the purpose of this provision is to ensure
"that the FLRA shall pass upon issues arising under the [Statute], thereby
bringing its expertise to bear on the resolution of those issues."
Section 7123(c)'s language "is virtually identical to that found in § 10(e)
of the National Labor Relations Act, 29 U.S.C. § 160(e) [(NLRA)], which
provides that '[n]o objection that has not been urged before the [NLRB] . .
. shall be considered by the court, unless the failure or neglect to urge
such objection shall be excused because of extraordinary circumstances.'"
EEOC, 476 U.S. at 23; see also NLRB v FLRA, 2 F.3d. 1190, 1196 (D.C. Cir.
1993) (noting applicability of NLRB precedent to interpretation of section
7123(c)); Georgia State Chapter, Ass'n of Civilian Technicians v. FLRA, 184
F.3d 889, 891 (D.C. Cir. 1999) (applying NLRB precedent in discussing
section 7123(c)).
The Supreme Court has interpreted section 10(e) to mean that a court of
appeals is "without jurisdiction to consider" an issue not raised before the
NLRB if the failure to do so is not excused by extraordinary circumstances.
EEOC, 476 U.S. at 23; see also Union de la Construccion de Concreto y Equipo
Pesado v. NLRB, 10 F.3d 14, 16 (1st Cir. 1993) (Court may not review
determinations of ALJ not excepted to before the Board); NLRB v. Union
Carbide Caribe, Inc., 423 F.2d 231, 235 (1st Cir. 1970) (parties may not
raise issues before appellate court not presented to the Board, absent
extraordinary circumstances). [5]
Both the Authority and the NLRB have given specific effect to the general
principles in ULP cases by providing that where a party fails to file
exceptions to an ALJ decision, all objections and exceptions to the rulings
and decisions of the ALJ shall be deemed waived for all purposes. See 5
C.F.R. § 2423.41 (Authority); 29 C.F.R. § 101.12(b) (NLRB).[6] Recognizing
the validity of these regulations, this Court has expressly held that it
"lack[s] jurisdiction to entertain" an objection to an ALJ's recommendation
that was not excepted to before the Board. Local Union No. 25, Int'l Bhd.
of Teamsters, Chauffeurs, Warehousemen and Helpers of Am. v. NLRB, 831 F.2d
1149, 1155 (1st Cir. 1987); see also NLRB v. Izzi, 343 F.2d 753, 754-55 (1st
Cir. 1965) (summary enforcement of NLRB order appropriate where no
exceptions to ALJ decision were filed). Similarly, the Supreme Court and
numerous courts of appeals have also found that, unless excused by
"extraordinary circumstances," a party who fails to file an exception to an
ALJ decision is jurisdictionally barred from raising that objection in
proceedings before a court of appeals. See Detroit Edison Co. v. NLRB, 440
U.S. 301, 311 n.10 (1979); see also NLRB v. Howard Immel, Inc., 102 F.3d
948, 951 (7th Cir. 1996); KBI Security Serv., Inc. v. NLRB, 91 F.3d 291, 294
(2d Cir. 1996) (KBI Security); NLRB v. Tri-State Warehouse & Distributing,
Inc., 677 F.2d 31, 31-32 (6th Cir. 1982) (summary enforcement of NLRB order
appropriate in light of absence of exceptions).
Accordingly, this Court is without jurisdiction to consider the Guard's
"impossibility" defense to the Authority's ULP determination, unless the
Guard's failure to present that objection to the Authority is excused by
extraordinary circumstances. As shown immediately below, however, no such
extraordinary circumstances exist here.
2. Neither "extraordinary circumstances" nor any other factor permits the
Guard to assert before this Court its "impossibility" defense to the ULPs
The Guard does not dispute that it failed to file exceptions to the ALJ's
decision and recommended order and that it never requested reconsideration
of the Authority's order. Moreover, neither "extraordinary circumstances"
nor any other factor exists that would permit the Court to consider the
Guard's "impossibility" arguments, based on circumstances that existed in
March 1997, as a defense to the ULPs with which the Guard was charged.[7]
a. Pursuing the "impossibility" defense to the ULPs was not futile
The Guard errs insofar as it argues (Br. 26-28) that it should be excused
from filing exceptions because the "futility" exception to section 7123(c)'s
bar applies. For support, the Guard cites FLRA v. Department of Justice,
137 F.3d 683, 687-88 (2d Cir. 1998), vacated 119 S. Ct. 2387 (1999);[8] and
NLRB v. FLRA, 2 F.3d at 1196. In that regard, the Second Circuit has held
that the "extraordinary circumstances" exception to section 7123(c) excuses
a litigant from urging an objection before the Authority when the
Authority's position on a matter is "deeply rooted and well- documented."
Overseas Educ. Ass'n, Inc. v. FLRA, 961 F.2d 36, 38 (2d Cir. 1992).
However, the "futility" exception to the administrative exhaustion
requirement is disfavored by many courts. As the Supreme Court has stated:
[O]rderly procedure and good administration require that objections to the
proceedings of an administrative agency be made while it has opportunity for
correction in order to raise issues reviewable by the courts. It is urged in
this case that the [Agency] had a predetermined policy on this subject which
would have required it to overrule the objection if made. While this may well
be true . . . . [r]epetition of the objection in [like cases] might lead to a
change of policy. . . . Simple fairness to those who are engaged in the tasks
of administration, and to litigants, requires as a general rule that courts
should not topple over administrative decisions unless the administrative body
not only has erred but has erred against objection made at the time appropriate
under its practice.
United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952); see also
Washington Ass'n for Television & Children v. FCC, 712 F.2d 677, 682 n.9 (D.C.
Cir. 1983) ("[f]utility should not lightly bepresumed."); Van Dorn Plastic
Machinery Co. v. NLRB, 881 F.2d 302, 306 (6th Cir. 1989) (litigant not excused
from exhaustion requirements of section 10(e) of the NLRA simply because the
NLRB was unlikely to have reacted favorably).
Regardless, even if there are circumstances where "futility," as applied by
the Second Circuit, excuses the failure of a party to raise a matter before
the Authority, there is no basis on which to excuse the Guard's failure to
file exceptions in this case. As noted above, pursuing a matter before the
administrative agency is "futile" only where the agency's position is so
"deeply-rooted" that it would be "hopeless" for a party to challenge "so
formidable a wall of precedent." OEA, 961 F.2d at 38. However, the ALJ's
decision in this case does not turn on any deeply rooted legal precedent.
Rather, the decision in the instant case was highly fact specific, depending
on the specific provisions of the MOU, and the facts and circumstances at
Muniz AFB in March 1997. There is thus no support for the proposition that
it would have been "futile" for the Guard to pursue its "impossibility"
defense by filing exceptions to the findings of the ALJ with the Authority.
Accordingly, "futility" does not constitute an extraordinary circumstance
within the meaning of section 7123(c) excusing the Guard's failure to file
exceptions to the ALJ's decision in this case.
b. The Court's "equitable authority" cannot override section 7123(c)'s
jurisdictional bar to further challenges to the Authority's ULP
determination
To the extent that the Guard argues (Br. 23-28) that the Court may exercise
its "equitable authority" to override the jurisdictional bar raised by
section 7123(c), the Guard's argument is unfounded and would render the
Statute's exhaustion requirements meaningless . As noted below in section
II.A., the Court may employ its "equitable authority" to consider
circumstances bearing on the appropriateness of enforcing the Authority's
order in full, notwithstanding the fact that the Guard is adjudged to have
committed ULPs. This does not imply, however, that the Court may also
consider objections to the Authority's underlying ULP determination that the
Guard abandoned in proceedings before the Authority. Pursuant to section
7123(c) and the Authority's regulations, those objections, based on
circumstances that allegedly existed at the time the Guard refused to
implement the MOU in March 1997, should have been raised before the
Authority in exceptions to the ALJ's decision if the Guard wished to
preserve them as bases upon which to argue on judicial review, as it does,
"that the Guard did not 'repudiat[e] the entire MOU' as the ALJ found." Br.
22. Taken to its logical end, the Guard's argument would permit a court of
appeals to override the jurisdictional constraints of section 7123(c)
whenever it believed it was "equitable" to do so, a result without a basis
in the Statute. See NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 322
(1961) (courts authority to modify NLRB orders does not override the
exhaustion requirements of section 10(e)of the NLRA).
3. The Guard's communications during the compliance phase of this case did
not preserve the Guard's "impossibility" defense as an issue for judicial
review
Seeking a different path around section 7123(c)'s jurisdictional bar, the
Guard also mistakenly contends (Br. 28) that, in effect, the Authority was
presented with the Guard's impossibility argument. On February 5, 1999, the
Guard responded to inquiries from the Authority's Boston Regional Office
concerning compliance, contending that compliance with the MOU, and in turn
the Authority's order, was impossible. According to the Guard, this letter
presented the Authority with "an opportunity to pass on the [impossibility]
defense in the same way it could have if the Guard had filed exceptions to
the ALJ's decision." (Br. 28).
The Guard's argument is groundless. A letter to a regional employee in
compliance proceedings does not constitute presenting the matter before the
Authority for adjudication. Cf. NLRB v. Dominick's Finer Foods, Inc., 28
F.3d 678, 685-86 (7th Cir. 1994) (raising matters to agents of the board,
including hearing officers and compliance staff, is insufficient to preserve
issue for review). Matters must be presented to the Authority at the proper
time and in accordance with its prescribed practices. Cf. 28 F.3d at 685.
The Authority's regulations make it clear that in order to preserve
objections to an ALJ's decision, exceptions must be filed pursuant to those
regulations. See 5 C.F.R. § 2423.41.
The Guard argues in the alternative (Br. 28 n.13) that, even if the Regional
Office's failure to respond positively to the February 5 letter did not
constitute presentation to the Authority of the "impossibility" argument, it
nonetheless is evidence that seeking formal reconsideration of the
Authority's decision would have been "futile" (see section I.A.2.a.,
supra).[9] However, this argument is also meritless. In the first place, as
noted in the preceding paragraph, the letter to the Regional Office did not
place the "impossibility" argument before the Authority and, therefore, the
Regional Office's failure to respond cannot constitute evidence of how the
Authority would have reacted to a request for reconsideration based on that
argument. Secondly, even if the Regional Office's lack of response was
somehow indicative of the Authority's position in the absence of exceptions,
that does not establish that it would have been futile to file a formal
request for reconsideration. As noted above, futility is available as an
"extraordinary circumstance" only where there exists a formidable wall of
deeply- rooted precedent and no such wall exists in this case.
4. Judicial precedent cited by the Guard is inapposite
Finally, two cases cited by the Guard are irrelevant to the section 7123(c)
issue in this case. In FLRA v. United States Dep't of Commerce, 962 F.2d
1055 (D.C. Cir. 1992) (Commerce) (cited at Br. 24 n.8), the D.C. Circuit
ruled that it had jurisdiction in an enforcement proceeding to consider the
merits arguments of the agency, notwithstanding the fact that the agency did
not timely petition for judicial review pursuant to 5 U.S.C. § 7123(a). See
962 F.2d at 1059. The procedural circumstances of the Commerce case differ
from this case and render Commerce inapplicable.
The jurisdictional issue in Commerce concerned the timeliness of the
agency's arguments to the court. Unlike the instant case, in Commerce the
agency filed exceptions with the Authority, and the Authority had considered
all the arguments the agency was pressing before the court. See Commerce,
962 F.2d at 1057. Thus, the only jurisdictional consideration before the
D.C. Circuit was whether the 60-day time limit for filing a petition for
review in section 7123(a) barred the agency from arguing its position on the
merits in a subsequent Authority enforcement proceeding filed under section
7123(b). See id. at 1058.
The Guard also cites (Br.27-28) FLRA v. United States Dep't of Justice, 994
F.2d 868, 873 (D.C. Cir 1993) (Justice), for the proposition that the "court
is not jurisdictionally barred from considering certain agency arguments
that 'c[ould] not be raised at the time of the entry of the order.'"
However, the type of arguments that court found could be raised inl
Department of Justice are distinct from what the Guard is asserting here.
In Justice, the agency employer had been found to have committed ULPs and
was ordered to bargain over "the impact and implementation" of a worksite
relocation. During the ensuing negotiations the agency refused to entertain
a specific union proposal. The issue in the subsequent enforcement
proceeding was whether the union's proposal was within the scope of the
Authority's limited bargaining order. 994 F.2d at 870-71. The court
rejected the Authority's jurisdictional argument that the matter had not
been previously raised, noting that the agency could not have known when the
Authority issued its bargaining order whether the union's proposal made in
the ensuing negotiations would come within the order's terms. 994 F.2d at
873. No such issue is present here. The Authority's order is unambiguous
and it is not contested that the order requires implementation of the CWS
for a 6-month period.
In sum on this point, well-established precedent supports the conclusion
that this Court is without jurisdiction to consider the Guard's defense to
the underlying ULPs.[10] Accordingly, the Court should affirm, on this
ground alone, the Authority's finding that the Guard committed ULPs by
repudiating the MOU.
B. Even if the Court considers the Guard's "impossibility" defense, the Court
should uphold the Authority's decision
The ALJ's determination that the Guard committed ULPs by repudiating the
MOU is reasonable and supported by substantial evidence. The Guard does
not dispute that the MOU was a binding collective bargaining agreement and
that the Guard did not implement the CWS provided for in the MOU. Rather,
the Guard's defense is couched in terms of the "impossibility" of
implementing the CWS on schedule in March 1997 because in the circumstances
obtaining at that time, "the trial period would become meaningless." Br.
21. The Guard explains that the Guard's failure of "a readiness inspection
in March 1997 . . . directly led to the loss of its then-current workload."
Id. Consequently, the Guard states, "the six-month trial period would have
had a workload substantially out of kilter with the workload that existed on
the base during the . . . 'baseline' period." Id.
As discussed below, the Guard's "impossibility" defense is defective for two
reasons. First, the premise on which it is based -- that the Guard could
anticipate in March 1997 that its workload during the 6-month CWS period
would be "out of kilter" with the baseline workload -- is not supported by
the record. Second, even if it were assumed that some workload differences
could be anticipated, that alone would neither have been inconsistent with
the MOU, nor sufficient to render the 6-month CWS period "meaningless."
1. The Guard had no basis in March 1997 for anticipating workload
differences sufficient to render implementation of the MOU "impossible"
On the subject of workload differences, the record does not reflect any
basis upon which the Guard could have anticipated workload differences
during the 6-month CWS period (which should have begun in March 1997) that
would render it "impossible" to implement the MOU. Indeed, the record
indicates little more than that a change in the aircraft assigned to Muniz
AFB could be expected at some indefinite time in the future. See, e.g., JA
44-45 (indicating that as of the date of the hearing in November 1997, Guard
personnel still did not have any firm indication as to when the type of
aircraft assigned was going to change). Conversely, the record is devoid of
evidence that the Guard possessed any knowledge in March 1997 that
significant workload changes were imminent.
Consistent with the absence of evidence in the record of any imminent
workload changes is that fact that none actually occurred. Specifically,
as the ALJ found in rejecting the Guard's "impossibility" defense (JA 160),
"by the time the MOU would have expired by its own terms, there had been no
change in the airplanes assigned" to the Base. Accord JA 44-45. See also
the Guard's statements at the hearing (JA 23) and in its posthearing brief
(JA 146) indicating that the type of aircraft that was assigned to the Guard
had not been changed immediately upon the Guard's failure of the readiness
inspection in March 1997, but instead was only going to be changed "by the
end of Fiscal Year 1998," a year after the MOU's 6-month CWS period was due
to expire. Thus, based on the record, the Guard had no reason to expect
that it would be "impossible" to make a "meaningful" comparison of the data
from the 6-month period during which a CWS should have been implemented with
the baseline data from the prior year. The Guard's assertions to the
contrary before this Court are therefore without merit and should be
rejected if the Court reaches the issue.
2. Even if workload differences could have been anticipated, such differences
would not have made it "impossible" to implement the MOU
Further, even if workload differences could have been anticipated, they
would not have made the 6-month CWS period required by the MOU
"meaningless," nor blocked in any other way implementation of the MOU. The
Guard's argument that anticipated changes in workload affected its ability
to implement the MOU constitutes nothing but an attempt to unilaterally
modify the terms of an agreement it wishes to disavow.
In the first instance, and as the ALJ found (JA 160), there was nothing in
the express terms of the MOU that permitted the Guard unilaterally to
determine not to implement the CWS short of a determination that the MOU
affected the Guard's military mission, a basis not asserted by the
Guard.[11] In addition, there is no foundation in the record for finding
"an unarticulated premise that [the Guard] was going to complete
successfully an [ORI] and the same type of aircraft and operation was going
to remain unchanged after March 1997." JA 145. Two union representatives
who participated in the negotiations of the MOU testified that there was no
such understanding. JA 34, 44. The Guard's only witness on this issue was
not a party to the negotiations and had no firsthand knowledge as to any
tacit understandings that may have been reached. JA 56-57.
The Guard's argument that it was justified in not implementing the MOU in
March 1997 because the comparisons called for in the MOU would be
"meaningless" has no merit. The agreement simply states, without further
qualification, that "indicators" such as productivity, absenteeism, and
morale during the 6-month CWS period will be compared with those factors
during "the last year." JA 156. Although changes in operations between the
test period and the base period might affect how such a comparison was
carried out, nothing in the MOU permits one party to unilaterally repudiate
the MOU because circumstances changed to some degree between the baseline
year and the 6-month CWS period.
To the contrary, the MOU calls for the parties to "keep in constant
communication in order to fine tune the process as it evolves." JA 155, 7.
How to deal with unforeseen changes such as those at issue here would appear
to be just the sort of things the MOU envisioned being resolved bilaterally,
rather than to lead to the unilateral abrogation of the parties's arduously
negotiated MOU.
For all of these reasons, the Court should affirm the Authority's
determination that the Guard committed ULPs in this case.
II. Circumstances occurring after the Authority issued its order have not
rendered enforcement of the Authority's order inappropriate
A. Implementation of the MOU is neither "impossible" nor meaningless
Contrary to the position taken by the Guard, implementation of the 6-month
CWS period would not be inappropriate under the circumstances the Guard
alleges have occurred at Muniz AFB. In this connection, the Authority
recognizes this Court's power to modify an Authority order by declining to
enforce portions of that order where circumstances at the time enforcement
is sought render enforcement inappropriate, even though the underlying ULP
determination is undisturbed. See Department of Health and Human Servs. v.
FLRA, 976 F.2d 1409, 1416 (D.C. Cir. 1992) (citing NLRB v. Maywood Plant of
Grede Plastics, 628 F.2d 1, 7 (D.C. Cir. 1980) (Grede Plastics)). However,
the Guard has not demonstrated that implementation of any portion of the
Authority's order in this case would be impossible, meaningless, or
otherwise inequitable.
The circumstances alleged by the Guard to render enforcement inequitable
are, to a large extent, a continuation of those circumstances presented to
the ALJ as part of the defense to the underlying ULP. For example, the
Guard continues to assert that uncertainty with respect to completion of the
conversion to new aircraft prevents meaningful implementation of the MOU.
As discussed above (section I.A.), because the Guard failed to except to the
ALJ's adverse ruling concerning those matters, those contentions, dealing
with circumstances in March 1997, are "waived for all purposes." 5 C.F.R. §
2423.41. In addition, and also as shown above (section I.B.), none of the
circumstances cited by the Guard to the ALJ, in fact, made implementation of
the MOU impossible or meaningless.
Similarly, with respect to those circumstances that the Guard claims (Br.
24-25) developed after the issuance of the Authority's order, including the
absence of aircraft, a reduced workload, and the absence on training of some
maintenance personnel, the Guard does not demonstrate that they render
implementation of the CWS impossible or meaningless. None of these factors
prohibit the Guard from establishing a CWS. There is nothing in the record
that indicates that duties that were assigned to the maintenance personnel
during the MOU's baseline period could not be performed on a CWS. Further,
the Guard's impossibility argument with respect to these new circumstances
is essentially the same as that considered and rejected by the ALJ, namely
that implementation of the MOU requires that the Guard's operations remain
essentially identical to those in effect at the time the MOU was executed.
As noted above, to the extent changes in operations affect the comparisons
between the 6-month CWS period and the "baseline," those changes may impact
how the data is evaluated. However, it has not been demonstrated that such
comparisons, taking into account changed circumstances, would be
"meaningless."[12]
Accordingly, because it has not been shown that the Guard could not
implement the terms of the MOU as required by the Authority's order in a
meaningful fashion, the Court has no reason to exercise its equitable
discretion not to enforce that portion of the Authority's order.
B. The circumstances occurring subsequent to the Authority's order do not
constitute "extraordinary circumstances"
The circumstances that the Guard alleges occurred subsequent to the
Authority's order in May 1998 also do not constitute "extraordinary
circumstances" such as would permit them to be raised as an objection to the
Authority's underlying ULP determination, and thus to this Court's
enforcement of the resulting order. Apart from the irrelevance of such
post-May 1998 changes to the Guard's refusal in March 1997 to implement the
MOU, these later-alleged changes in circumstances do not fit within any
recognized exception to the jurisdictional bar raised by section 7123(c) of
the Statute. See section I.A., supra.
In addition, as with the matters asserted by the Guard as part of its
"impossibility" defense, the Guard never sought to raise these post-May 1998
circumstances with the Authority through a motion for reconsideration. In
this connection, the Guard is wrong when it contends (Br. 26 n.10) that
because the time limit for seeking reconsideration had expired, the Guard's
position based on post-May 1998 conditions "could not have been brought to
the Authority's attention through a motion for reconsideration." The
Authority has in appropriate circumstances waived the time limits for filing
motions for reconsideration. E.g., Department of Veterans Affairs, Veterans
Affairs Medical Ctr., Jackson, MS, 49 FLRA 171 (1994), pet. for review
denied, 73 F.3d 390 (D.C. Cir. 1996).
C. Precedent does not support denying the Authority's Application for
Enforcement
The Guard cites two cases in which a court of appeals has declined to
enforce all or part of an NLRB order on the ground that circumstances at the
time enforcement was sought would be inequitable. Neither of these cases,
however, resembles the instant case. In Grede Plastics, subsequent to the
NLRB's order, Grede Plastics sold its plant to another company. 628 F.2d at
7. The successor company rehired striking employees, recognized the union,
and bargained a new collective bargaining agreement. Id. The court
affirmed the NLRB's finding of ULPs on Grede's part, and enforced a cease
and desist order and the notice requirement. Id. However, the court found
it would be senseless to enforce a bargaining order which the successor had
already effectively implemented and which Grede had no more authority to
accomplish. Id. In the instant case, in contrast, the Guard has
steadfastly refused to take any actions to implement any aspect of the
Authority's remedial order.
NLRB v. Greensboro News & Record, Inc., 843 F.2d 795 (4th Cir. 1988)
(Greensboro News), is also distinguishable from the instant case. There
the company had substantially complied with an NLRB order to cease and
desist from ULPs and to take affirmative actions, including reinstating the
union president. 843 F.2d at 796-797. Approximately three years later, the
union alleged that the company was engaging in similar conduct and filed
charges to that effect with the NLRB. 843 F.2d at 797. Although the new
charges were pending, the NLRB then sought enforcement of its original
order, claiming that the later conduct was violative of that order. Id.
The court denied enforcement, noting the time between the order and the
enforcement action, and the lack of identity between the events which were
the subject of the original ULP and those which triggered the more current
dispute. 843 F.2d at 798-99. The court required that the NLRB initiate new
proceedings based on the facts and circumstances of the later alleged
misconduct. 843 F.2d at 799. The situation presented in Greensboro News is
readily distinguishable from the instant case, where no delay in the
initiation of enforcement proceedings has occurred, and the Authority's
application is premised on the employer conduct which engendered the
underlying ULP proceeding.
In both Grede Plastics and Greensboro News, although the courts exercised
their equitable discretion to decline enforcement of parts of NLRB orders,
in neither case did an offending employer escape liability for established
or conceded ULPs. In Grede, the court affirmed the finding of ULPs, and
enforced some, but not all portions of the order. See also KBI Security, 91
F.3d at 294-295 (same). In Greensboro News, although current enforcement
was denied, the employer had complied with an earlier order, and the more
current alleged misconduct was the subject of proceedings before the NLRB.
In contrast, denying enforcement in the instant case would relieve the Guard
of any liability for its complete repudiation of the MOU.
CONCLUSION
The Authority's order should be enforced.
Respectfully submitted,
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JAMES F. BLANDFORD
Attorney
Federal Labor Relations
Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
January 2000
CERTIFICATION PURSUANT TO FRAP RULE 32
Pursuant to Federal Rule of Appellate Procedure 32, I certify that the
attached brief is written in a proportionally-spaced 14-point font and
contains 8583 words.
January 19, 2000
__________________________
James F. Blandford
Attorney
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_______________________________
FEDERAL LABOR RELATIONS AUTHORITY,
Petitioner
v. No. 99-1293
PUERTO RICO NATIONAL GUARD,
PUERTO RICO AIR NATIONAL GUARD,
SAN JUAN, PUERTO RICO,
Respondent
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Brief For The Federal Labor Relations Authority
and one copy of the brief in electronic format, have been mailed by first-
class mail upon the following counsel:
William Kanter, Esq.
Howard S. Scher, Esq.
Civil Division, Room 9124
Department of Justice
601 D Street, N.W.
Washington, D.C. 20530-0001
I certify that copies of the Brief For The Federal Labor Relations Authority
and one copy of the brief in electronic format, have been mailed by first-
class mail to the Clerk of the First Circuit.
Thelma Brown
Paralegal Specialist
January 19, 2000
STATUTORY AND REGULATORY ADDENDUM
TABLE OF CONTENTS
1. 5 U.S.C. § 7105(a)(1), (2) A-1
2. 5 U.S.C. § 7105(a)(2)(G), (I) A-1
3. 5 U.S.C. § 7116(a)(1), (5) A-2
4. 5 U.S.C. § 7118 A-3
5. 5 U.S.C. § 7123(a), (b), (c) A-5
6. 5 C.F.R. § 2423.41 A-7
§ 7105. Powers and duties of the Authority
(a)(1) The Authority shall provide leadership in establishing policies and
guidance relating to matters under this chapter, and, except as otherwise
provided, shall be responsible for carrying out the purpose of this chapter.
(2) The Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-
* * * * * * * * * *
(G) conduct hearings and resolve complaints of unfair labor practices under
section 7118 of this title;
* * * * * * * * * *
(I) take such other actions as are necessary and appropriate to effectively
administer the provisions of this chapter.
* * * * * * * * * *
§ 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor practice
for an agency-
(1) to interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under this chapter;
* * * * * * * * * *
(5) to refuse to consult or negotiate in good faith with a labor
organization as required by this chapter;
* * * * * * * * * *
§ 7118. Prevention of unfair labor practices
(a)(1) If any agency or labor organization is charged by any person with
having engaged in or engaging in an unfair labor practice, the General
Counsel shall investigate the charge and may issue and cause to be served
upon the agency or labor organization a complaint. In any case in which the
General Counsel does not issue a complaint because the charge fails to state
an unfair labor practice, the General Counsel shall provide the person
making the charge a written statement of the reasons for not issuing a
complaint.
(2) Any complaint under paragraph (1) of this subsection shall contain a
notice-
(A) of the charge;
(B) that a hearing will be held before the Authority (or any member thereof
or before an individual employed by the authority and designated for such
purpose); and
(C) of the time and place fixed for the hearing.
(3) The labor organization or agency involved shall have the right to file
an answer to the original and any amended complaint and to appear in person
or otherwise and give testimony at the time and place fixed in the complaint
for the hearing.
(4)(A) Except as provided in subparagraph (B) of this paragraph, no
complaint shall be issued on any alleged unfair labor practice which
occurred more than 6 months before the filing of the charge with the
Authority.
(B) If the General Counsel determines that the person filing any charge was
prevented from filing the charge during the 6-month period referred to in
subparagraph (A) of this paragraph by reason of-
(i) any failure of the agency or labor organization against which the charge
is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged unfair labor
practice during the 6-month period,
the General Counsel may issue a complaint based on the charge if the charge was
filed during the 6-month period beginning on the day of the discovery by the
person of the alleged unfair labor practice.
(5) The General Counsel may prescribe regulations providing for informal
methods by which the alleged unfair labor practice may be resolved prior to
the issuance of a complaint.
(6) The Authority (or any member thereof or any individual employed by the
Authority and designated for such purpose) shall conduct a hearing on the
complaint not earlier than 5 days after the date on which the complaint is
served. In the discretion of the individual or individuals conducting the
hearing, any person involved may be allowed to intervene in the hearing and
to present testimony. Any such hearing shall, to the extent practicable, be
conducted in accordance with the provisions of subchapter II of chapter 5 of
this title, except that the parties shall not be bound by rules of evidence,
whether statutory, common law, or adopted by a court. A transcript shall be
kept of the hearing. After such a hearing the Authority, in its discretion,
may upon notice receive further evidence or hear argument.
(7) If the Authority (or any member thereof or any individual employed by
the Authority and designated for such purpose) determines after any hearing
on a complaint under paragraph (5) of this subsection that the preponderance
of the evidence received demonstrates that the agency or labor organization
named in the complaint has engaged in or is engaging in an unfair labor
practice, then the individual or individuals conducting the hearing shall
state in writing their findings of fact and shall issue and cause to be
served on the agency or labor organization an order-
(A) to cease and desist from any such unfair labor practice in which the
agency or labor organization is engaged;
(B) requiring the parties to renegotiate a collective bargaining agreement
in accordance with the order of the Authority and requiring that the
agreement, as amended, be given retroactive effect;
(C) requiring reinstatement of an employee with backpay in accordance with
section 5596 of this title; or
(D) including any combination of the actions described in subparagraphs (A)
through (C) of this paragraph or such other action as will carry out the
purpose of this chapter.
If any such order requires reinstatement of any employee with backpay, backpay
may be required of the agency (as provided in section 5596 of this title) or of
the labor organization, as the case may be, which is found to have engaged in
the unfair labor practice involved.
(8) If the individual or individuals conducting the hearing determine that
the preponderance of the evidence received fails to demonstrate that the
agency or labor organization named in the complaint has engaged in or is
engaging in an unfair labor practice, the individual or individuals shall
state in writing their findings of fact and shall issue an order dismissing
the complaint.
(b) In connection with any matter before the Authority in any proceeding
under this section, the Authority may request, in accordance with the
provisions of section 7105(i) of this title, from the Director of the Office
of Personnel Management an advisory opinion concerning the proper
interpretation of rules, regulations, or other policy directives issued by
the Office of Personnel Management.
§ 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the Authority other than an
order under-
(1) section 7122 of this title (involving an award by an arbitrator), unless
the order involves an unfair labor practice under section 7118 of this
title, or
(2) section 7112 of this title (involving an appropriate unit
determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in the
United States court of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals for the District of
Columbia.
(b) The Authority may petition any appropriate United States court of
appeals for the enforcement of any order of the Authority and for
appropriate temporary relief or restraining order.
(c) Upon the filing of a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for enforcement, the
Authority shall file in the court the record in the proceedings, as provided
in section 2112 of title 28. Upon the filing of the petition, the court
shall cause notice thereof to be served to the parties involved, and
thereupon shall have jurisdiction of the proceeding and of the question
determined therein and may grant any temporary relief (including a temporary
restraining order) it considers just and proper, and may make and enter a
decree affirming and enforcing, modifying and enforcing as so modified, or
setting aside in whole or in part the order of the Authority. The filing of
a petition under subsection (a) or (b) of this section shall not operate as
a stay of the Authority's order unless the court specifically orders the
stay. Review of the Authority's order shall be on the record in accordance
with section 706 of this title. No objection that has not been urged before
the Authority, or its designee, shall be considered by the court, unless the
failure or neglect to urge the objection is excused because of extraordinary
circumstances. The findings of the Authority with respect to questions of
fact, if supported by substantial evidence on the record considered as a
whole, shall be conclusive. If any person applies to the court for leave to
adduce additional evidence and shows to the satisfaction of the court that
the additional evidence is material and that there were reasonable grounds
for the failure to adduce the evidence in the hearing before the Authority,
or its designee, the court may order the additional evidence to be taken
before the Authority, or its designee, and to be made a part of the record.
The Authority may modify its findings as to the facts, or make new findings
by reason of additional evidence so taken and filed. The Authority shall
file its modified or new findings, which, with respect to questions of fact,
if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any,
for the modification or setting aside of its original order. Upon the filing
of the record with the court, the jurisdiction of the court shall be
exclusive and its judgment and decree shall be final, except that the
judgment and decree shall be subject to review by the Supreme Court of the
United States upon writ of certiorari or certification as provided in
section 1254 of title 28.
* * * * * * * * * *
[1] Pertinent statutory and regulatory provisions are set forth in Addendum
A to this brief.
[2] "Alternative Work Schedules" is the collective term for a variety of
schedules other than a fixed tour of five 8-hour days per week. Such schedules
may include flexible hours, where an employee may vary his or her arrival and
departure times, as well as compressed work schedules (CWS), which normally
involve a workweek of four 10-hour days or a 2-week schedule of eight 9-hour
days and one 8-hour day. See Illinois National Guard v. FLRA, 854 F.2d 1396,
1398-99 (D.C. Cir. 1988).
[3] Testimony at the hearing suggested two reasons for the Guard's refusal to
implement. One union representative was told that the CWS was not going to be
implemented because the General "just didn't like it." JA 35. Another union
representative was told that the reason was the failure of the ORI. JA 43.
[4] The ALJ characterized the Guard's argument as one involving
"impossibility" JA 160 as did the Guard in its answer to the Authority's
Application for Enforcement. See JA 189. In its brief, however, the Guard
curiously refers to this "impossibility" as the "futility" of implementing the
MOU. This unhelpful shift in terminology causes confusion because the Guard
also uses the term "futility" in its brief in the context of administrative
exhaustion (e.g., Br. 28 and n. 13), where it argues that its failure to raise
matters before the Authority was excusable because pursuit of those issues would
have been "futile." To avoid confusion concerning the sense in which the term
"futility" is being used, the Authority will adopt the Guard's characterization
in proceedings before the ALJ and in its answer, by referring to the Guard's
defense to the ULP as one involving "impossibility."
[5] The Guard acknowledges the relevance of precedent developed under the
NLRA with respect to judicial review and enforcement of Authority decisions and
orders (Br. at 16 n.3).
[6] Congress intended that ULP complaints would be processed by the Authority
"in a manner essentially identical to National Labor Relations Board practices
in the private sector." S. Rep. No. 95-969 at 106 (1978), reprinted in 1978
U.S.C.C.A.N. 2723, 2828. Consistent with that intent the Authority has
prescribed procedures substantially identical to those of the NLRB. Compare 5
C.F.R. §§ 2423.30-2423.41 with 29 C.F.R. §§ 101.10, 101.12.
[7] The separate issue of whether "extraordinary circumstances" encompasses
the Guard's objections to the Authority's remedial order, based on circumstances
that developed subsequent to the Authority's decision, is discussed below in
section II.A.
[8] The viability of FLRA v.Department of Justice as precedent is dubious.
The Authority sought certiorari on both the administrative exhaustion issue and
on the merits question in the case. See 67 U.S.L.W. 3344. The Supreme Court
in a memorandum order granted certiorari, vacated the judgment, and remanded the
case for further consideration. 119 S.Ct. at 2387. On remand, the court
enforced the Authority's order without revisiting the exhaustion issue.
[9] Although the Guard does not characterize this as an argument in the
alternative, it clearly is such. If the Guard is correct that the February 5,
1999, letter constituted presenting the Authority with an opportunity to pass on
the impossibility defense, then administrative exhaustion is no longer an issue
and there is no need to demonstrate "futility" or any other extraordinary
circumstance.
[10] The Authority recognizes that most of this precedent was developed under
the NLRA rather than the Statute. Nevertheless, the Guard's position before
this Court should be rejected because it is at odds with this NLRA precedent and
if adopted, could effectively overrule or significantly modify it. See NLRB v.
FLRA , 2 F.3d at 1199 (Buckley, J., dissenting) (noting that the court's
decision expanding the concept of extraordinary circumstances under 5 U.S.C. §
7123(c) could be applied to cases arising under section 10(e) of the NLRA).
[11] The ALJ's decision rejecting the Guard's position was based on the ALJ's
interpretation of the MOU. The Authority has the power to interpret collective
bargaining agreements when necessary to resolve a ULP claim. See Internal
Revenue Serv., Washington, D.C., 47 FLRA 1091, 1105 (1993) (citing NLRB v. C&C
Plywood, 385 U.S. 421, 428 (1967)).
[12] Indeed, with respect to some of the indicators such as morale and
absenteeism, the comparisons may not be affected at all.
