United States Immigration and Naturalization Service, Washington, D.C. and National Border Patrol Council, American Federation of Government Employees, AFL-CIO (Authority decision, January 12, 1999)

Read the official release (flra.gov)

FLRA remand decision. The Authority sets aside the judge’s unfair-labor-practice findings and returns the Air Operations Manual complaint for further proceedings under a clarified impasse rule. The violation allegations remain unresolved. This decision does not present a final judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

The Border Patrol issued a new Air Operations Manual while the union’s request for help from the Federal Service Impasses Panel was pending. An administrative law judge found unfair labor practices and ordered the manual rescinded. The Authority set aside that finding and returned the complaint for application of a clarified rule: a separate impasse procedure violation requires a failure to cooperate with a Panel procedure or decision, while a refusal to bargain is evaluated on its own terms. The judge must decide what further proceedings are needed, so the alleged violations and remedy remain open.

Decision snapshot

• Authority: Unfair labor practice claims under 5 U.S.C. § 7116(a)(1), (5), and (6).
• Outcome: Judge’s violation finding set aside; complaint remanded under clarified impasse rule.
• Key point: A pending Panel request alone does not establish a separate failure to cooperate with impasse procedures.

Full text (FLRA public release)

[ v55 p69 ]

55 FLRA No. 19

UNITED STATES IMMIGRATION AND

NATURALIZATION SERVICE

WASHINGTON, D.C.

(Respondent)

and

NATIONAL BORDER PATROL COUNCIL

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

(Charging Party/Union)

SF-CA-30165

_____

DECISION AND ORDER

January 12, 1999

_____

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 Respondent. The General Counsel and the Union each filed an opposition to the Respondent's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by its actions in implementing a new Air Operations Manual (Manual) after the Union had requested the assistance of the Federal Service Impasses Panel (the Panel). The Judge found that the Respondent violated the Statute, as alleged in the complaint. He recommended an order directing the Respondent to rescind the Manual, restore the status quo ante, and make whole any employee adversely affected by the Manual's implementation.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommendations only to the extent consistent with this decision. For reasons set forth below, we do not adopt the Judge's conclusion that the General Counsel established that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute. In doing so, we modify the approach that the Authority will follow for resolving complaints alleging such violations. We remand the case to the Judge to apply the approach adopted herein.

Under the modified framework, the Authority's approach to determining whether an agency's implementation of changes in conditions of employment violates section 7116(a)(5) of the Statute remains unchanged. An additional violation of section 7116(a)(6) will be found only where the agency's implementation fails to cooperate with an impasse procedure or decision.

II. Background and Judge's Decision

The facts, which are set forth in the Judge's decision, are briefly summarized here.

The Respondent notified the Union that it intended to implement a new Air Operations Manual and invited the Union to submit impact and implementation proposals. The parties attempted unsuccessfully, through the exchange of correspondence, to agree on where and when negotiations would occur. Ultimately, the Respondent agreed by letter to some of the Union's ground rules proposals, presented counterproposals to the rest, and asserted that it would "implement the Manual unilaterally . . . if [the Union] continue[d] to delay." G.C. Exh. 12. The day after the Union received the Respondent's letter, the Union requested assistance from the Federal Mediation and Conciliation Service (FMCS) as well as from the Panel. The Respondent implemented the Manual approximately 2 weeks later, while the Union's request for assistance was pending before the Panel. [n2]

At the outset, the Judge found that there was no allegation before him that "either the Respondent or the Union bargained in bad faith . . . ." Judge's Decision at 7. According to the Judge, the "only allegation" before him was that the Respondent "violated the Statute by implementing the Manual while the matter was pending before the Panel." Id.

The Judge rejected the Respondent's contention that it was entitled to implement the Manual on October 1 because the Union's request to the Panel was filed before the parties had reached impasse. The Judge [ v55 p70 ] stated that, "even if the Panel had declined jurisdiction over the dispute in this case, the Respondent's implementation of the Manual while the matter was pending before the Panel would have been improper." Judge's Decision at 8-9, n.15. The Judge also concluded that implementation of the Manual "was not consistent with the necessary functioning of the agency." Id. at 11.

As a remedy, the Judge recommended an order directing the Respondent to rescind the Manual, restore the status quo ante, and make whole any bargaining unit employees who suffered a loss of pay or benefits because of their failure to comply with the Manual. He based this remedy on application of the factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), [n3] as well as the fact that the Respondent implemented the Manual while the Union's request for assistance was pending before the Panel.

III. Positions of the Parties

A. Respondent's Exceptions

The Respondent argues that, under the standards governing its alleged violation of the Statute, [n4] the Judge was required to determine whether the parties had bargained to impasse before the Union invoked the services of the Panel, and that his failure to make this determination constitutes reversible error. Exceptions at 10 (citing Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985) (BATF)). The Respondent contends that the parties were not at impasse when the Respondent implemented the Manual because they had never met face-to-face, had never engaged in negotiations of any consequence, and had not attempted mediation. The Respondent relies on section 2470.2(e) of the Panel's regulations, 5 C.F.R. § 2470.2(e), which defines the term "impasse" as "that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement."

The Respondent also relies on the holding of the U.S. Court of Appeals for the Fifth Circuit that "unilateral implementation [during Panel proceedings] of a change determined to be nonnegotiable" is not an unfair labor practice. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 995 F.2d 46, 48 (5th Cir. 1993) (Department of Justice), reversing in part U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 44 FLRA 1065 (1992) (INS II). In the Respondent's view, "regardless of whether a union attempts to negotiate over a proposal which is nonnegotiable, or whether, as here, attempts to invoke the Panel's procedures before there has been any bargaining, the union has failed to fulfill the prerequisites to Panel jurisdiction." Exceptions at 23.

The Respondent also disagrees with the Judge's recommended remedy. With regard to the FCI factors, the Respondent contends that its implementation of the Manual "must necessarily be tempered by the `willful' misuse of the Panel's procedures by the Union." Id. at 31. The Respondent also contends that the record is silent as to any adverse effect on employees resulting from implementation of the Manual. As to the disruption that could result from a status quo ante remedy, the Respondent asserts that it implemented the Manual out of consideration for safety and internal security, citing U.S. Army Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA 457, 459 (1986) (Army Publications Center).

B. The General Counsel's Opposition

The General Counsel asserts that whether the parties were at impasse is a matter for the Panel itself to determine. The General Counsel also points out that the Authority has not adopted the Fifth Circuit's decision in Department of Justice.

The General Counsel acknowledges the Authority's statement in Army Publications Center that greater weight must be given to the disruptive effects of a status [ v55 p71 ] quo ante remedy on an agency's internal security practices, but argues that the Judge gave these practices their proper weight in concluding that status quo ante relief would not disrupt or impair the efficiency and effectiveness of the Respondent's air safety operation. According to the General Counsel, the Respondent has pointed to no record evidence on which to conclude otherwise.

C. The Union's Opposition

The Union asserts that the Judge properly found that the Respondent violated the Statute by implementing the Manual at a time when its request for assistance was pending before the Panel. [n5] According to the Union, its request for intervention was properly before the Panel because applicable precedent dictates that once parties are unable to reach an agreement and the agency notifies the union that it intends to implement changes on a certain date, the union "must file" its request for Panel assistance before that date if it wishes to seek Panel assistance. Union's Opposition at 4 (emphasis in original). Here, according to the Union, it believed that it had no alternative but to file its request for assistance with the Panel.

The Union defends the Judge's recommended status quo ante order by arguing that FCI does not apply in cases where an agency makes unilateral changes in matters pending before the Panel. In the Union's view, if an agency cannot demonstrate that the changes in question were necessary, then "the appropriate remedy for such a violation must be to return to the status quo ante." Id. at 13 (emphasis in original).

IV. Analysis and Conclusions

A. Introduction

Under the Statute, there are two distinct unfair labor practices that relate specifically to an agency's conduct of negotiations leading to a collective bargaining agreement. Section 7116(a)(5) provides that it is an unfair labor practice "to refuse to consult or negotiate in good faith with a labor organization as required by this chapter[.]" Section 7116(a)(6) more specifically provides that an agency may not "fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter[.]" The Authority has long recognized that these separate provisions are interrelated because "the impasse resolution procedures of the Panel comprise one aspect of the collective bargaining process" referred to in section 7116(a)(5). [n6] BATF, 18 FLRA at 472.

Our examination of the record in this case and applicable precedent makes evident that the Authority has not consistently defined the elements necessary to establish a violation of section 7116(a)(6). The Judge stated that a respondent is required to maintain the status quo "[o]nce parties reach an impasse . . . and one party timely invokes the services of the Panel . . . ." Judge's Decision at 7-8 (citing BATF, 18 FLRA at 468-69). The Respondent agrees with the Judge's statement of precedent, and asserts that these two elements -- existence of an impasse and timely invocation of Panel assistance -- are necessary preconditions to any finding that a respondent has failed to "cooperate in impasse procedures and decisions," within the meaning of section 7116(a)(6). See Exceptions at 10. Despite the Judge's recitation of the standard as requiring an impasse, however, the Judge made no finding that the parties had reached impasse in this case -- a failure that, according to the Respondent, was improper and constituted error. See Judge's Decision at 8 n.15. The General Counsel asserts that the Judge's failure to make a finding that the parties were at impasse was not improper, relying on a previous Authority decision where a violation of section 7116(a)(6) was found despite a finding of fact that the parties were not at impasse. See General [ v55 p72 ] Counsel's Opposition at 4 (citing Department of Veterans Affairs, Veterans Administration Medical Center, Decatur, Georgia, 46 FLRA 339, 345-46 (1992) (VA, Decatur)).

Resolving the Respondent's exceptions requires us to determine what it means to "fail or refuse to cooperate in impasse procedures and decisions" under section 7116(a)(6). The question squarely presented is whether the mere filing of a request for Panel assistance is sufficient to establish that an agency's failure to maintain the status quo constitutes an unfair labor practice under section 7116(a)(6). For the reasons fully explained below, we conclude that the General Counsel must establish more than the facts that implementation occurred at a time when a request for assistance was pending before the Panel: the General Counsel must establish that the implementation failed to cooperate with an impasse procedure or decision.

We emphasize that finding a violation of section 7116(a)(6) in circumstances where implementation occurs at a time when a request for Panel assistance is pending is unnecessary to enforce the obligation to maintain the status quo because such obligation is enforced under section 7116(a)(5). Therefore, as the approach to determining violations of section 7116(a)(5) remains unchanged, the modification adopted today to the framework for resolving section 7116(a)(6) claims does not, in any way, expand an agency's right to implement changes in conditions of employment prior to completing bargaining over the changes and participating in impasse procedures. In particular, the modification leaves undisturbed Authority precedent that finds it unlawful for an agency to implement changes in conditions of employment prior to the completion of bargaining, except in specific circumstances. We emphasize this here because it is misapprehended by the dissent, and we do not want our decision to leave agencies and exclusive representatives with any uncertainty on this central point.

Section IV.B. of this decision sets forth the doctrine that has been developed in Authority decisions for resolving complaints alleging that an agency violated section 7116(a)(5) and (a)(6) of the Statute by failing to maintain the status quo, and certain problems that have arisen in the application of that doctrine. In section IV.C. of this decision, we explain why a separate, implied obligation to maintain the status quo under section 7116(a)(6) is neither necessary nor supported by the wording, policies, or purposes of the Statute. In section IV.D., we explain the approach we will follow in deciding this and future cases where it is necessary to determine compliance with section 7116(a)(6). The modified framework we adopt is intended to both clarify the parties' obligations in circumstances such as those presented in this case, and to strengthen the Panel's important statutory role in assisting the parties to resolve negotiation impasses.

B. Both Section 7116(a)(6) and Section 7116(a)(5) Have Been Interpreted to Require Maintenance of the Status Quo

1. Agencies are required to complete negotiations and impasse procedures prior to making changes in working conditions, with certain exceptions

It is a long established principle that "the duty to bargain under the Statute requires that a party meet its obligation to negotiate prior to making changes in established conditions of employment[.]" BATF, 18 FLRA at 467. See, e.g., U.S. Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 43 FLRA 642, 652-53 (1991), enforced 12 F.3d 882 (9th Cir. 1993) (INS, San Diego). This rule parallels the practice in the private sector under the National Labor Relations Act, where employers are also required to maintain working conditions during the course of bargaining. See National Labor Relations Board v. Katz, 369 U.S. 736 (1962). See generally Hardin, Developing Labor Law 596-601 (3d Ed. 1995) (Hardin).

The federal sector collective bargaining scheme contains distinctive procedures not present in the private sector, including procedures for the resolution of bargaining impasses. These impasse resolution devices are intended to facilitate and, if necessary, impose, a resolution of impasses. [n7] Chief among the impasse resolution devices contained in the Statute is the Panel, "whose job it is to suggest and if necessary, order terms of settlement between agencies and unions when they cannot agree." American Federation of Government Employees v. FLRA, 778 F.2d 850, 852 (D.C. Cir. 1985). See 5 U.S.C. § 7119.

One result of the additional impasse resolution procedures imposed by the Statute is that an agency is required to delay making proposed changes to working [ v55 p73 ] conditions not only while bargaining is ongoing, but also after an impasse in bargaining has been reached, during impasse procedures. BATF, 18 FLRA at 468. The agency is required to give the union appropriate notice that it considers bargaining at an impasse and that it intends to implement the proposed change in working conditions. See U.S. Immigration and Naturalization Service, 24 FLRA 786, 790 (1986) (INS I); U.S. Customs Service, 16 FLRA 198, 200 (1984). Such notice provides the union reasonable opportunity to seek Panel assistance before the agency implements the change. Id. Further, the Authority has held that, "once parties have reached an impasse in their negotiations and one party timely invokes the services of the Panel, the status quo must be maintained to the maximum extent possible, i.e., to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate." BATF, 18 FLRA at 469. In BATF, the Authority held that the respondent violated both 7116(a)(5) and (a)(6) by implementing certain changes after the parties had reached impasse and the union had timely requested the Panel's assistance; the Authority also held, however, that the respondent's failure to maintain the status quo did not violate either (a)(5) or (a)(6) as to other changes over which the respondent was not obligated to bargain. Id. at 470.

In addition to permitting an agency to implement changes when consistent with the necessary functioning of the agency, the Authority has recognized other circumstances in which an agency may implement changed working conditions without violating section 7116(a)(5), in each of which the agency implements at its peril if the exception asserted by the agency is determined not to apply. [n8] Similar defenses have been held to be available in cases alleging violations of section 7116(a)(6). [n9] The Authority also has recognized that a union may consent to a proposed change in conditions of employment, either explicitly through agreement or implicitly through action or inaction. Thus, an agency may implement changes in conditions of employment when a union fails to request bargaining within a reasonable period of time after being notified of proposed changes, fails to bargain, or fails to timely invoke the services of the Panel after the parties have reached impasse. See, e.g., INS I, 24 FLRA at 790. In these situations, the agency has, in effect, satisfied its bargaining obligation. [n10]

2. The Authority's standard for determining whether a failure to maintain the status quo violate section 7116(a)(6) has been stated and applied inconsistently

In BATF, 18 FLRA 466, the Authority held that an agency's implementation of changed working conditions when the parties had bargained to impasse and the matter was before the Panel violated both the general duty to bargain, enforced by section 7116(a)(5) of the Statute, and the specific duty to cooperate in impasse procedures, enforced by section 7116(a)(6) of the Stat- [ v55 p74 ] ute. Because the obligation to maintain the status quo under section 7116(a)(5) was clear, BATF did not impose any added obligations on agencies or unions. However, in requesting that the Authority issue a general ruling clarifying the parties' duties in this context, the Panel stated that unions interpreted BATF as "prohibiting an agency from implementing a change in working conditions only when the union involved has filed a request for Panel assistance." Order Denying Request for General Ruling, 31 FLRA 1294 (1988) (emphasis added). In other words, according to the Panel, parties read BATF as permitting implementation of changes in conditions of employment unless Panel assistance had been requested, without any requirement that there be an impasse in bargaining and without regard to the language of the BATF decision indicating that the obligation to maintain the status quo enforced by section 7116(a)(6) arose "once the parties had reached impasse and one party had invoked the services of the Panel[.]" BATF, 18 FLRA at 469. As the Panel described the effect of the unions' interpretation of BATF, "labor organizations have filed . . . requests [with the Panel] in order to delay implementation of changes in working conditions." Order Denying Request for General Ruling, 31 FLRA at 1294.

Despite the requirement stated in BATF that existence of an impasse is a prerequisite to enforcement of any obligation under section 7116(a)(6) to maintain the status quo, in at least one case decided subsequent to BATF, the Authority held that the agency had violated section 7116(a)(6) by failing to maintain the status quo despite the finding that the parties had not reached impasse at the time of the change. See VA, Decatur, 46 FLRA at 345-46. The apparent departure in this decision from the impasse requirement set forth in BATF was not acknowledged or explained by the Authority. In other cases, the fact that parties had reached impasse was noted in the Authority's decision but not relied on in finding a violation of section 7116(a)(6). See, e.g., Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 948-51 (1990) (SSA II). In yet another case, the Authority acknowledged that, under BATF, the status quo must be maintained "[o]nce parties reach an impasse in their negotiations and one party timely invokes the services of the Panel," but found a violation of section 7116(a)(6) without making any findings as to whether the parties had reached impasse at the time of the union's request for Panel assistance. See Air Force, 42 FLRA 266.

The BATF framework, as it has been implemented by the parties and the Authority and followed by the parties, implies that the invocation of the services of the Panel creates a new obligation on the part of the agency to maintain the status quo. However, the obligation to maintain the status quo that arises from the duty to bargain remains constant throughout the bargaining process. As noted above, it does not exist in circumstances where there is no duty to bargain, and it may be relieved by a union's failure to request bargaining, to bargain, or to request assistance of the Panel once a genuine impasse has been declared. Apart from VA, Decatur, however, there is no basis on which to conclude that the duty to maintain the status quo turns solely on whether a party has, perhaps precipitously, filed a request for assistance with the Panel. [n11]

The facts of this case illustrate the difficulties resulting from this inconsistent Authority precedent. The Respondent announced its proposed change in working conditions on May 20, 1992, and, for reasons that are contested, the parties engaged in only the most preliminary exchange of positions over the next 4 months. The Respondent unilaterally implemented the change on October 1, alleging that the Union's failure to [ v55 p75 ] bargain relieved it of its obligation to maintain the status quo.

The Respondent never denied an obligation to bargain over the Manual. Nor did the Respondent assert that the parties were at impasse. Nevertheless, on receiving notice of the Respondent's intent to implement the Manual, the Union filed a request for assistance with the Panel. The Union took this action despite its -- the Union's -- position that negotiations should continue.

Neither party has asserted that, at either the time of the Union's request for Panel assistance or the time of the Respondent's implementation of the Manual, negotiations were at a stalemate. Instead, the parties' dispute has centered on "who was responsible for . . . preventing negotiations[.]" Judge's Decision at 6. As such, this dispute would properly be resolved as an allegation -- and consideration of any defenses thereto -- that the Respondent violated section 7116(a)(5) by failing to bargain in good faith. Nevertheless, the unfair labor practice complaint alleges that the Respondent violated sections 7116(a)(1), (5), and (6) of the Statute by "unilaterally implement[ing] the changes [in working conditions described] . . . while the matter was pending before the Panel." Complaint, par. 13-15. In describing this theory of the Respondent's violation, the Judge found "irrelevant" considerations of "who was responsible for the failure to reach agreement on ground rules and therefore for preventing negotiations over the impact and implementation of the Respondent's decision to issue the new Manual." Judge's Decision at 6.

The Respondent asserts that the Judge erred in not requiring proof that an impasse had been reached. [n12] The General Counsel, the Charging Party, and the dissent, in contrast, view proof of impasse as unnecessary. In considering whether the Authority should follow the weight of its precedent, and find a violation of section 7116(a)(6) only in situations where an impasse has been reached (and a timely request for assistance has been filed with the Panel), or whether the Authority should agree with the General Counsel and follow VA, Decatur to find that an impasse is not necessary, it has become apparent that the premise of Authority precedent -- that section 7116(a)(6) enforces an implied obligation to maintain the status quo apart from any Panel procedure or decision -- is itself problematic. Because, as discussed below, there is no support in the Statute for finding this implied obligation, and because it is unnecessary to do so in order to effectuate an agency's obligation to maintain the status quo, we modify the Authority's framework to be applied in this and future cases for resolving complaints alleging violations of section 7116(a)(6) based on implementation of changes in conditions of employment.

C. Nothing in the Statute indicates that a separate, implied obligation to maintain the status quo is imposed by section 7116(a)(6)

1. The express terms of the Statute do not impose a separate, implied obligation under section 7116(a)(6)

Our review of the terms of the Statute and its purposes and policies persuades us that preventing the implementation of changes in conditions of employment prior to the completion of bargaining is an objective of the general duty to bargain enforced by section 7116(a)(5), and that nothing in section 7116(a)(6) separately requires an agency to maintain the status quo in situations, such as the one now before us, where the Panel has not directed the agency to do so in its procedures or in a decision. Although the policy requiring maintenance of the status quo where an impasse is pending before the Panel is indisputably compelling, Authority decisions have not explained why the policy is not adequately accomplished by the requirement to maintain the status quo under section 7116(a)(5).

Section 7116(a)(5) requires an agency to fulfill its statutory obligation to bargain in good faith. That obligation encompasses, in turn, bargaining over terms and conditions of employment. See 5 U.S.C. § 7106(a)(12). [ v55 p76 ] The long-standing precedent that an agency violates its obligation to bargain when it unilaterally implements changes in conditions of employment is firmly rooted in these statutory provisions. See Department of the Treasury, U.S. Customs Service, Region I, Boston, Massachusetts, 1 FLRA 398, 409 (1979) ("an agency and the exclusive representative shall meet and confer in good faith with respect to . . . matters affecting working conditions. . . . An agency is not permitted to alter or change such working conditions without first notifying the collective bargaining representative . . . and, upon request, bargaining about such proposed changes before they are put into effect.") (citing U.S. Army Finance and Accounting Center, Fort Benjamin Harrison, Indianapolis, Indiana, A/SLMR No. 651 (1976)). That is, except in the limited circumstances discussed above, supra n.8, an agency's obligation to bargain in good faith includes the obligation to maintain the status quo until completion of bargaining.

On the other hand, we find no support in the words of the Statute itself, or its legislative history, for reading into section 7116(a)(6) a separate requirement to maintain the status quo merely because a request for assistance has been filed with the Panel. In this regard, section 7116(a)(6) states that it is an unfair labor practice "to fail or refuse to cooperate in impasse procedures and impasse decisions" (emphasis added). Where these procedures or decisions direct the maintenance of the status quo, a refusal to act in accordance with such direction is clearly a refusal to cooperate with the procedures or decisions. However, in the absence of such direction, there appears to be no foundation for inferring it. Nothing in the plain wording of section 7116(a)(6) supports a conclusion that a separate, implied obligation, in addition to that in section 7116(a)(5), is imposed. Moreover, the legislative history is silent on this matter, and the Authority has not explained how an implied requirement is grounded in section 7116(a)(6) of the Statute. [n13]

As the Authority noted in BATF, 18 FLRA at 468-69, the finding that an obligation to maintain the status quo after an impasse has been reached and a timely request for Panel assistance has been filed originates in decisions of the Federal Labor Relations Council under Executive Order 11491 that were intended to effectuate the policy of the Executive Order to foster stability in the Federal labor-management relations program. See Internal Revenue Service, 6 FLRC 311, 313 n.3, 320 (1978) (after impasse and timely invocation of Panel processes, agency is required to maintain status quo to the maximum extent possible). Unlike the Statute, there was no express requirement under Executive Order 11491 to comply with Panel procedures and decisions. That is, there was no equivalent to section 7116(a)(6) of the Statute. However, consistent with the holding that the impasse resolution process operated as an aspect of the overall obligation to bargain under the Executive Order, a failure to maintain the status quo after impasse was reached and a timely request for Panel assistance was filed was held to violate section 19(a)(6) of the Executive Order, which prohibited a refusal to "consult, confer, or negotiate with a labor organization as required by [the] Order." See id.

Under the Statute, as under the Executive Order, it is clear that "[t]he impasse resolution procedures of the Panel operate as one aspect of the collective bargaining, or negotiation, process." Department of Energy, Washington, D.C., 51 FLRA 124, 129 (1995), reversed on other grounds sub nom. United States Department of Energy v. FLRA, 106 F.3d 1158 (4th Cir. 1997). Thus, the requirement to maintain the status quo pending completion of bargaining, which is firmly rooted in the statutory obligation to engage in collective bargaining, as enforced in section 7116(a)(5), continues through impasse resolution. See INS, San Diego, 43 FLRA at 653. In fact, we are not aware of any case (where the complaint alleged a violation of both section 7116(a)(5) and (6)) in which a violation of the existing implied obligation to maintain the status quo under section 7116(a)(6) has not also been found to violate section 7116(a)(5). [n14] See, e.g., SSA II, 35 FLRA at 949-51.

2. The purposes and policies of the Statute do not support imposition of a separate, implied obligation under section 7116(a)(6)

There are several respects in which the creation of a separate, implied obligation to maintain the status quo arising from section 7116(a)(6) does not promote the purposes and policies of the Statute.

[ v55 p77 ] First, it has led to confusion in unfair labor practice litigation. As Authority precedent demonstrates, disputes involving failure to maintain the status quo after impasse has been reached and the Panel's assistance has been timely sought have in some cases been litigated as alleged violations of section 7116(a)(5) alone. See SSA I, 35 FLRA at 302. Other unfair labor practice complaints have alleged violations of section 7116(a)(6) only. See HUD, 23 FLRA 435. Still other complaints, including the one now before us, alleged violations of both section 7116(a)(5) and (a)(6). In some cases where both section 7116(a)(5) and section 7116(a)(6) were allegedly violated by a failure to maintain the status quo, the alleged section 7116(a)(5) violation was "independent" of the alleged section 7116(a)(6) violation; in others the alleged violation of section 7116(a)(5) was "derivative" of the alleged violation of section 7116(a)(6). Compare U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 49 FLRA 1444 (1994) (section 7116(a)(5) independent of section 7116(a)(6)) with DHHS, 35 FLRA at 949-51 (section 7116(a)(5) derivative of section 7116(a)(6)). Indeed, in the complaint now before us, it will be necessary on remand to determine whether what was found to be a "derivative" violation may be an "independent" violation. See note 21, infra.

This case also provides another example of the confusion in prosecuting -- and defending -- alleged violations of section 7116(a)(6) under Authority precedent. The Respondent defends its implementation of the Manual by arguing that the Union's request for Panel assistance was premature. However, in attempting to excuse its implementation under section 7116(a)(6) -- by asserting that the parties had not bargained to impasse -- the agency's argument may actually establish that the implementation was unlawful under section 7116(a)(5). Conversely, the Union believed, and continues to assert, that it was obligated to request Panel assistance to forestall unilateral implementation. See Union's Opposition at 5 ("once Respondent notifies the Union of its intent to implement, the Union is under an obligation to seek the assistance of [] FSIP prior to implementation."). However, the Respondent did not assert at the time of implementation, and does not now assert, that the parties bargained to impasse. In fact, as noted above, the Respondent maintains that the parties had not bargained to impasse at the time of implementation. Accordingly, the Union was clearly mistaken: it was under no obligation under existing case law to seek Panel assistance in order to forestall implementation of the Manual.

As is apparent from the Union's actions in this case, grounding an agency's obligation to maintain the status quo in both section 7116(a)(5) and (a)(6) not only encourages, but also in the Charging Party's view requires, unions to file requests for Panel assistance in order to preserve a legal argument, rather than because the Panel's services are actually needed. As noted above, a union is required to request Panel assistance in one circumstance: upon receiving proper notice of an agency's intent to implement a change in conditions of employment because parties have reached impasse in their negotiations, a union is obligated to file a request for Panel assistance to forestall implementation. However, requiring a union to file a request for Panel assistance following any notice of implementation places the union in the untenable position of being required to request Panel assistance (in order to avoid implementation) only to be confronted later with an allegation that implementation was proper because the request was filed prematurely. [n15] Indeed, as noted previously, the Respondent characterizes the Union's request for Panel assistance in this case as a "`willful' misuse of the Panel's procedures . . . ." Exceptions at 31.

The foregoing demonstrates a second reason why the creation of a separate, implied obligation to maintain the status quo arising from section 7116(a)(6) does not promote the purposes and policies of the Statute. Specifically, to the extent that requiring a union to file a request for Panel assistance following any notice of implementation prompts parties to file requests for Panel assistance in order to protect their litigation posture, it deflects Panel resources away from the central task of resolving impasses. [n16] It also deflects the resources of the parties away from their tasks of engaging in collective bargaining and resolving bargaining disputes. [ v55 p78 ]

The difficulties described herein would be less weighty, in our assessment, if it were necessary to find a separate, implied obligation in section 7116(a)(6) in order to enforce the requirement to maintain the status quo until the completion of bargaining. However, as explained above, the impasse process is, in effect, subsumed within the collective bargaining process as a whole, such that a failure to maintain the status quo during the impasse process violates section 7116(a)(5). Therefore, we are unable to discern a reason for finding an independent, implied obligation under section 7116(a)(6) to maintain the status quo once Panel procedures are invoked. Put simply, it is unnecessary to create multiple enforcement grounds -- with their attendant confusion and potential for resource misuse -- when a single ground provides equivalent enforcement of the obligation. [n17]

D. The question whether an agency violates section 7116(a)(6) by implementing changes in conditions of employment will be resolved based on whether the agency cooperates with Panel procedures or a Panel decision requiring it to maintain the status quo

In view of the foregoing problems with Authority precedent, and because we do not discern either a need for imposing a separate, implied requirement to maintain the status quo in section 7116(a)(6) or a basis in the plain wording of the Statute, its legislative history, or its policies and purposes for doing so, we conclude that the doctrine must be revised. We will, henceforth, determine whether an agency that implements a change in conditions of employment has violated section 7116(a)(6) of the Statute based on whether maintenance of the status quo has been directed by impasse procedures or decisions. Previous Authority decisions to the contrary will no longer be followed.

As the above discussion makes clear, this modification in our approach to resolving the allegation presented in this case does not make any change in the bargaining obligations of agencies and unions. Specifically, an agency's obligation under section 7116(a)(5) to maintain the status quo -- both up to and through impasse resolution procedures -- remains intact. This clarification of the parties' obligations reinforces the continuing and unitary obligation of agencies, absent the existence of a specific exception, to maintain the status quo both during negotiations and after an impasse has been reached. Further, this change is not intended to discourage in any way the use of available dispute resolution procedures, including those of the Panel. In situations such as that presented in this case, it is perfectly appropriate for a union facing the implementation of changed working conditions to contact the Panel to determine whether its services, or those of other dispute resolution agencies, may be useful. The modification merely clarifies that a union is not obliged to seek Panel assistance simply to support an unfair labor practice charge. We leave it to the Panel to determine whether to adopt specific procedures concerning the maintenance of the status quo, or whether to issue such orders under particular circumstances. [n18] [ v55 p79 ]

As the dissent points out, with certain exceptions, both law and policy obligate an agency to maintain the status quo during the time an impasse is pending before the Panel. Despite our dissenting colleague's assertion to the contrary, today's decision neither undercuts that obligation in any way nor reduces unions' rights. [n19] In both the Federal and private sectors, that obligation historically has been rooted in the obligation to bargain in good faith, and a failure of a Federal agency to do so violates section 7116(a)(5) of the Statute. The obligation to maintain the status quo extended through impasse proceedings under Executive Order 11491, which did not contain an analogue to section 7116(a)(6), and continues to extend through impasse proceedings under section 7116(a)(5) of the Statute. That obligation has been enforced prior to this decision and will continue to be enforced after it. Agencies should not be mistakenly encouraged by the dissent to prematurely implement changes in working conditions without fulfilling their duty to bargain in good faith.

E. It Is Not Possible on the Existing Record to Apply the Revised Framework

The complaint in this case alleges that the Respondent violated sections 7116(a)(1), (5), and (6) of the Statute when it implemented changes in working conditions while a request for assistance was pending before the Panel. The Judge found that the "only allegation" before him was that the Respondent violated the Statute by implementing at a time when the Union's request for assistance was pending before the Panel. Judge's Decision at 7. In effect, the Judge found that the alleged violation of section 7116(a)(5) was derivative of the alleged section 7116(a)(6) violation. There are no exceptions to the Judge's finding, which the Respondent expressly adopts without opposition from the General Counsel. [n20]

The record before us does not provide a sufficient basis to resolve the complaint under the modified framework we have announced today. For example, the record is unclear whether impasse procedures were violated or whether the Panel had directed the Respondent to maintain the status quo in this case. In fact, as noted supra note 2, the record in this case is not complete with regard to the Panel's actions following the Union's request for assistance. The introduction of evidence concerning these matters was not required under previous Authority precedent, which, as explained above, did not require evidence of a Panel direction to sustain a violation of section 7116(a)(6). In addition, in view of the modification in Authority doctrine concerning the elements necessary to establish a violation of section 7116(a)(6) announced in this decision, questions concerning retroactively applying this rule need to be resolved. In resolving this question, it would be appropriate for the Judge to direct that the parties file briefs on the issue.

In view of the foregoing, we remand the complaint to the Judge for a determination of what, if any, further proceedings are necessary in the case. [n21]

V. Order

The complaint is remanded to the Judge for further action consistent with this decision.

File 1: Authority's Decision in 55 FLRA No.
19

File 2: Opinion of Member Wasserman

File 3: ALJ's Decision

Footnote # 1 for
55 FLRA No. 19

• Authority's Decision

Member Wasserman's dissenting opinion is set forth at the end of this decision.

Footnote # 2 for
55 FLRA No. 19

• Authority's Decision

The record contains little about the Panel's actions after the Union's request for assistance was filed. It does disclose, however, that over 8 months after the Respondent implemented the Manual, the Panel resolved this and other ground rules disputes between the parties by decision dated May 13, 1993. G.C. Exh. 19.

Footnote # 3 for
55 FLRA No. 19

• Authority's Decision

In FCI, the Authority enumerated the following factors to be considered in determining whether to issue a status quo ante remedy following an agency's unlawful implementation of changes in unit employees' conditions of employment over which impact and implementation bargaining is required: (1) whether and when notice was given the union by the agency concerning the change; (2) whether and when the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligation; (4) the nature and extent of the adverse impact on unit employees; and (5) whether and to what degree a status quo ante remedy would disrupt or impact the efficiency and effectiveness of the agency's operations. 8 FLRA at 606.

Footnote # 4 for
55 FLRA No. 19

• Authority's Decision

The Respondent notes the Judge's finding that the only allegation before him was that the Respondent violated the Statute by implementing the Manual at a time that the Union's request for assistance was pending before the Panel. The Respondent states:

Thus, the complaint does not allege a violation by means of unilateral implementation before having bargained to impasse, nor by some other general violation of an agency's bargaining obligation in such instances. Rather, the complaint is based only on the limited allegation that the Respondent implemented while there was a matter properly pending before the FSIP, and that the Respondent, thus, had an obligation to maintain the status quo.

Exceptions at 9.

Footnote # 5 for
55 FLRA No. 19

• Authority's Decision

The Union also asserts that the complaint is sufficiently broad to encompass a violation based on finding that "the Respondent failed to complete negotiations with the Union before it implemented its change in working conditions." Union's Opposition at 2.

Footnote # 6 for
55 FLRA No. 19

• Authority's Decision

Thus, an agency's refusal to cooperate in impasse proceedings is also considered a violation of the general duty to bargain stated in section 7116(a)(5). BATF, 18 FLRA at 472. For this reason, a finding of a violation of section 7116(a)(6) is nearly always accompanied by a finding of a violation of section 7116(a)(5). Id. But cf. U.S. Equal Employment Opportunity Commission, Washington, D.C., 48 FLRA 306, 312 n.3 (1993) (EEOC I) (respondent's failure to maintain the status quo after impasse reached and union filed timely request for Panel assistance alleged to violate section 7116(a)(6) but not section 7116(a)(5)); U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435 (1986) (HUD) (same). In such cases, the violation of section 7116(a)(5) is "derivative" of the section 7116(a)(6) violation. See, e.g., Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 949-51 (1990) (SSA II). As discussed in more detail infra, however, the reverse is not true. For example, in cases where the Panel is not involved, a change in conditions of employment may constitute an "independent" violation of section 7116(a)(5); section 7116(a)(6) is not involved in such cases. See, e.g., U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 258, 262-63 (1991). In addition, a failure to maintain the status quo after impasse has been reached and a timely request for assistance has been filed with the Panel violates section 7116(a)(5) even in situations where no violation of section 7116(a)(6) is alleged. See Social Security Administration, 35 FLRA 296, 302 (1990) (SSA I).

Footnote # 7 for
55 FLRA No. 19

• Authority's Decision

In the private sector, bargaining impasses may remain unresolved, and parties may attempt to resolve them through economic tactics such as strikes and the unilateral implementation of changed working conditions by employers. See Hardin at 696-97; see generally, National Labor Relations Board v. Insurance Agents International Union, 361 U.S. 477, 488-89 (1960) (describing the role of economic weapons in private sector bargaining).

Footnote # 8 for
55 FLRA No. 19

• Authority's Decision

First, an agency may lawfully implement changes in conditions of employment when it is not obligated to bargain over the change. For example, an agency is not obligated to bargain over a change when the impact of the change on the conditions of employment of unit employees is de minimis. See Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574, 576 (1992). Second, an agency may lawfully implement a change when a union's proposals in response to the change are outside the agency's duty to bargain. For example, where all union proposals are contrary to law, rule, or regulation, or the proposals concern matters that are already covered by an agreement between the parties, the agency is not required to maintain the status quo. See, e.g., U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 258, 262-63 (1991). Third, an agency may lawfully implement changes when necessary to correct an unlawful practice. See, e.g., Department of the Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA 543, 568 n.9 (1982). In this regard, an agency that implements a change in order to correct an unlawful practice is only obligated to bargain after implementation over the impact and implementation of the change. See Department of the Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, 17 FLRA 394 (1985).

Footnote # 9 for
55 FLRA No. 19

• Authority's Decision

See, e.g., Equal Employment Opportunity Commission, Washington, D.C., 52 FLRA 459 (1996) (EEOC II) (failure to maintain the status quo after impasse was reached and union had filed request for Panel assistance did not violate the Statute where the matter over which the union sought to bargain was covered by the parties' collective bargaining agreement); EEOC I, 48 FLRA at 310 (Authority rejected on the merits the respondent's defense that it was not obligated to bargain over change implemented after impasse was reached and a request for Panel assistance was filed because effect of change on unit employee's conditions of employment was de minimis); Department of the Air Force, Scott Air Force Base, Illinois, 42 FLRA 266, 271 (1991) (Air Force) (Authority rejected on the merits the respondent's assertion that it was not obligated to maintain the status quo after impasse was reached and a request for Panel assistance was filed because the union had waived its right to bargain over the change); BATF, 18 FLRA at 470 (Authority found that failure to maintain the status quo as to certain matters after impasse was reached and a request for Panel assistance was filed did not violate the Statute because the respondent had no obligation to bargain over those matters). We note that the U.S. Court of Appeals for the Fifth Circuit reversed the Authority's decision in INS II, 44 FLRA at 1073, that the respondent was obligated to maintain the status quo after impasse was reached and a request for Panel assistance was filed despite existence of a negotiability dispute over the union's proposals. Department of Justice, 995 F.2d at 48.

Footnote # 10 for
55 FLRA No. 19

• Authority's Decision

When lawful implementation occurs because a union fails to request bargaining, the changes must be consistent with the changes of which the union was notified. See U.S. Customs Service, 16 FLRA 198 (1981). When lawful implementation occurs because the parties have reached impasse and the union has failed to timely request the Panel's services, the changes may not exceed those encompassed by the agency's last proposal to the union. See U.S. Army Corps of Engineers, Philadelphia District, A/SLMR No. 673 (1976).

Footnote # 11 for
55 FLRA No. 19

• Authority's Decision

In this regard, the dissent implies that the approach it advocates -- finding that, subject only to a "necessary functioning" defense and, perhaps, a defense based on a union's "abuse" of Panel procedures, section 7116(a)(6) requires an agency to maintain the status quo when a union has only filed a request for Panel assistance -- is consistent with Authority precedent. It is not. With the exception of VA, Decatur, where a violation of section 7116(a)(6) was found despite the fact that the parties were not at impasse, and the possible exception of Air Force, where the Authority's statement of the framework it was applying recognized that impasse was necessary but the Authority's decision did not expressly find an impasse, failure to maintain the status quo has been found to violate section 7116(a)(6) only in cases where the parties were at impasse prior to the request for Panel assistance. Moreover, even VA, Decatur does not state, or provide reasoning supporting a conclusion, that the mere filing of a request for Panel assistance is sufficient to trigger an obligation to maintain the status quo under section 7116(a)(6). Thus, there is, at most, only scant support for finding an obligation based on the mere filing of a request for Panel assistance. It is certainly not, as described in the dissent, a rule established in "decades of precedent." Dissent at 1. Moreover, there is absolutely no support for the dissent's suggestion that implementation prior to reaching agreement "is virtually a per se impasse . . . ." Dissent at 5. Thus, the dissent also would modify current law, just in a different way than we adopt here.

Footnote # 12 for
55 FLRA No. 19

• Authority's Decision

We note that basing the agency's obligation to maintain the status quo on both the existence of an impasse and proper invocation of Panel procedures would require the Authority to determine whether the parties had reached impasse at the time of the union's request for Panel assistance or whether the union's request was premature. There are significant difficulties with such a rule, which would place the Authority in the position of making determinations regarding such matters as whether, and when, parties have exhausted voluntary efforts to reach agreement and whether, and when, the Panel asserted or acquired jurisdiction over an impasse. See 5 C.F.R. § 2470.2(e) (Panel's regulations define "impasse" as "that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement."). In particular, these determinations involve issues that existing Panel processes do not inform. For example, we are aware of no requirement that the Panel make public its determinations regarding jurisdiction over requests for its assistance and, in this case, there is no evidence that, prior to the issuance of its decision resolving the ground-rules dispute in this case, the Panel stated whether it had jurisdiction. In addition, extensive fact-finding would appear necessary to make these determinations. For reasons set forth in this decision, it is unnecessary for the Authority to undertake such determinations, which the statutory scheme dictates be made in the first instance by the Panel.

Footnote # 13 for
55 FLRA No. 19

• Authority's Decision

Similarly, although the requirement under existing Authority case law to maintain the status quo once the Panel is involved in impasse resolution has been referenced in judicial decisions, no court has examined the propriety of, or the necessity for, the requirement, or has indicated whether this obligation emanates from section 7116(a)(5) or (a)(6). See, e.g., Department of Justice, 995 F.2d at 47-48 ("While a matter is pending before the Impasses Panel, under FLRA rule the parties must maintain the status quo to the extent consistent with the necessary functioning of the agency.") (citing BATF, 18 FLRA 466); National Association of Government Employees v. FLRA, 893 F.2d 380, 382 (D.C. Cir. 1990) (NAGE v. FLRA) ("Had the union properly invoked the services of the Impasses Panel, any . . . failure to maintain the status quo (to the extent consistent with its functions) would have been, under the Authority's rulings, an unfair labor practice in violation of 5 U.S.C. § 7116(a)(1), (5), and (6).") (citing BATF, 18 FLRA at 469).

Footnote # 14 for
55 FLRA No. 19

• Authority's Decision

We note, however, that in U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 49 FLRA 1444, 1474-75 (1994) (Scott AFB), the judge's recommended decision found a violation of section 7116(a)(5) without an accompanying violation of section 7116(a)(6). In particular, the judge recommended dismissal of the allegation that a failure to maintain the status quo violated section 7116(a)(6) on the ground that an impasse had been reached, while recommending a finding that the failure to maintain the status quo violated section 7116(a)(5). No exceptions were taken to the recommended decision regarding section 7116(a)(6); on review of exceptions relating to section 7116(a)(5), the Authority reversed the judge and dismissed the complaint on the ground that the matter over which the union sought to bargain was covered by the parties' collective bargaining agreement. Id. at 1449 n.3, 1452-54.

Footnote # 15 for
55 FLRA No. 19

• Authority's Decision

Here, if the parties had bargained to impasse, the Union would have been obligated to seek Panel assistance in order to require maintenance of the status quo under section 7116(a)(5) of the Statute.

Footnote # 16 for
55 FLRA No. 19

• Authority's Decision

We note, in this regard, that section 7119(c)(1) of the Statute provides that the "function" of the Panel "is to provide assistance in resolving negotiation impasses between agencies and exclusive representatives." Section 7119(b) provides that a party may request the Panel's assistance "[i]f voluntary arrangements . . . fail to resolve a negotiation impasse" (emphasis added). The voluntary arrangements referred to in section 7119(b) expressly include the services of "the Federal Mediation and Conciliation Service or any other third-party mediation[.]" One court has interpreted the requirement in section 7116(a)(6) that an agency cooperate in "impasse" procedures and decisions as conditioned on the existence of an impasse. See Patent Office Professional Association v. FLRA, 26 F.3d 1148, 1153 (D.C. Cir. 1994) ("before the Panel can employ its power, there must first be an impasse".) (emphasis in original). See also NAGE v. FLRA, 893 F.2d at 382 ("The status quo duty depends, however, on some party's having properly invoked the services of the Impasses Panel.") (emphasis added).

Footnote # 17 for
55 FLRA No. 19

• Authority's Decision

Central to the difference between our view of Authority precedent and that described by our dissenting colleague is disagreement over whether these enforcement grounds are equivalent. As we understand it, the dissent sees a distinction in current law between enforcement of an agency's obligation to maintain the status quo under section 7116(a)(5) and enforcement under section 7116(a)(6), with the former involving an "at your peril" standard and the latter subject only to a necessary functioning defense. See Dissent at 5 n.4, 9, 11. We disagree with this view of Authority precedent. In this regard, we note that longstanding precedent supports a conclusion that an agency acts at its peril in refusing to comply with a Panel decision. See Department of Defense, National Guard Bureau, Indiana Air National Guard, Indianapolis, Indiana, 17 FLRA 23, 24 (1985). In addition, as set forth supra note 8, the Authority has previously applied an "at your peril" standard in resolving allegations that an agency violated section 7116(a)(5) by failing to maintain the status quo, and, as set forth supra note 9, the Authority has evaluated duty-to-bargain and other defenses in determining whether failure to maintain the status quo violated section 7116(a)(6). Accord Department of Justice
, 995 F.2d at 48 (court held that an at-your-peril standard also should be applied when an agency implements changes in conditions of employment on the ground that union proposals are outside the duty to bargain under the Statute). Such evaluation is consistent with an at-your-peril standard. The dissent advocates a standard whereby "implementation while statutory impasse proceedings are pending, [is] a per se unfair labor practice, absent proof that implementation was necessary for the agency to function[.]" Dissent at 9. However, since numerous duty-to-bargain defenses, in addition to the "necessary functioning" defense, have been available to respondents charged with violating section 7116(a)(6), Dissent at 9, we are unable to discern anything "per se" about the standard the dissent would adopt.

Footnote # 18 for
55 FLRA No. 19

• Authority's Decision

Since the circumstances in which the Panel may deem it appropriate to specify procedures requiring maintenance of the status quo cannot be anticipated, we do not here address what, if any, defenses (such as those set out in note 9, supra, or raised by the Respondent in this case) are available to respondents who do not cooperate in those procedures. Similarly, we will determine in an appropriate case what remedy should be provided for violations of section 7116(a)(6) under the new framework and, in particular, whether the existing FCI framework for evaluating requests for status quo ante relief should apply in such cases or whether a status quo ante remedy should be presumed appropriate in view of the importance of the Panel in the resolution of collective bargaining impasses. We note that, contrary to our dissenting colleague's suggestion, Dissent at 8-9, the FCI framework has been applied by the Authority in determining appropriate remedies for violations of section 7116(a)(6). See, e.g., INS II, 44 FLRA at 1075. The Authority has, however, not been consistent in doing so. Compare id. (FCI applied in determining whether to provide status quo ante remedy for violation of section 7116(a)(6)) with Department of Health and Human Services, Health Care Financing Administration
, 39 FLRA 120, 133 (1991) (FCI not applied). In an appropriate case, it will be necessary to reconcile this inconsistent precedent.

Footnote # 19 for
55 FLRA No. 19

• Authority's Decision

The dissent dismisses our explanation that this decision does not alter an agency's responsibility to maintain the status quo, stating that the explanation "makes the change appear inconsequential" when "reality suggests otherwise." Dissent at 11 n.8. There is absolutely no basis for this reckless assertion that our explanation is about "appearances" rather that reality as perceived by the dissent. To the extent that the dissent's anxiety reflects concern that, as is the case in all unfair labor practice proceedings, enforcement of rights under the Statute depends on proper pleading and litigation by the General Counsel, surely complaints issued following this decision will be pled and prosecuted so as to fully enforce agency obligations to bargain in good faith and to cooperate in impasse procedures and decisions.

Footnote # 20 for
55 FLRA No. 19

• Authority's Decision

In this regard, the Union asserts in its opposition that the complaint in this case is broad enough to encompass a finding that there was an independent violation of section 7116(a)(5). Union Opposition at 2. However, the Union does not except to the Judge's conclusion that only a derivative section 7116(a)(5) violation was before him.

Footnote # 21 for
55 FLRA No. 19

• Authority's Decision

It is not clear whether it would be appropriate, or feasible, for the Judge to permit the General Counsel to, in effect, relitigate the complaint as an independent -- rather than derivative -- violation of section 7116(a)(5). We leave that matter to the parties and the Judge on remand.

[ v55 p80 ]

Dissenting Opinion of Member Wasserman:

I dissent regarding the application of section 7116(a)(6) in this case. [n1] I would not overturn decades of precedent, and would continue to apply the law so as to require that an agency maintain the status quo when a union files a request for Panel assistance.

In interpreting Executive Order 11491, which governed federal sector labor relations prior to 1979, the Federal Labor Relations Council stated that maintenance of stability in the federal labor program required maintenance of the status quo while a request for Panel assistance was pending. Internal Revenue Service and National Treasury Employees Union, 6 FLRC 311, 320-21 (1978) (IRS). The maintenance of the status quo was deemed necessary to allow the Panel to determine its jurisdiction and to take appropriate action to settle the dispute. Id. at 321. In making that determination, the Council stated that it is necessary to maintain

the status quo to the maximum extent possible once the Panel's processes have been invoked in order to permit the Panel to decide whether to require further negotiations or to exercise jurisdiction over the dispute and, in the latter event, to take the action deemed necessary to settle the dispute.

IRS, 6 FLRC at 321.

The Executive Order did not contain an unfair labor practice provision analogous to section 7116(a)(6). The addition of this section appears to represent the codification of the concepts developed under the Executive Order. The requirement for the maintenance of the status quo during the pendency of a request for Panel assistance was well known to Congress during the drafting of the Statute. Had Congress meant to exclude this requirement from section 7116(a)(6), it could have done so. Since Executive Order 11491 contained no counterpart to section 7116(a)(6), there was no alternative but to consider refusals to cooperate in impasse proceedings as refusals to bargain. With the passage of the Statute, the Authority was able to consider refusals to maintain the status quo during the pendency of Panel proceedings under a more focused section of the law.

In fact, the FLRA did just that, continuing to apply the Council's approach under section 7116(a)(6). See Department of Veterans Affairs, Veterans Administration Medical Canter, Decatur, Georgia, 46 FLRA 339, 346 (1992); Department of Health and Human Services, Social Security Administration, 44 FLRA 870 (1992); Department of the Air Force, Scott Air Force Base, Illinois, 42 FLRA 266 (1991); Department of Health and Human Services, Health Care Financing Administration, 39 FLRA 120 (1991); United States Marine Corps, Washington, D.C., et. al, 42 FLRA 3 (1991); Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940 (1990) (DHHS); U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435 (1986); Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466, 469 (1985) (BATF). The decision in DHHS recognized that the Panel need not have determined its jurisdiction in order for the status quo requirement to attach. 35 FLRA at 950.

I find no basis whatsoever for the assertion that there has been an inconsistent application of our precedent such that we need to modify the requirements with respect to maintenance of the status quo under section 7116(a)(6). The majority suggests that BATF has not been consistently followed insofar as we have not always required the existence of an impasse prior to imposing the status quo requirement under (a)(6). Slip op. at 13, citing VA, Decatur. The request for Panel assistance generally follows an impasse, although not always. In Scott AFB, 49 FLRA 1444 (1994), the judge declined to find a section 7116(a)(6) violation because there had been no bargaining at all prior to the filing of a request for Panel assistance. That determination was rendered irrelevant by the Authority's conclusion that there was no duty to bargain. Id. at 1454. In this case, an impasse was reached when the Agency stated its intent to implement unilaterally in a few days' time and thereby signaled that useful negotiations had come to an end. The Panel acknowledged the existence of an impasse, as it accepted the Charging Party's request for assistance, and generated a decision on the issues raised by the request. [n2] G.C. Exhibit 19.

The fact that we have not always required a finding of an impasse as a predicate to the request for Panel assistance is consistent with the reasoning of BATF. The Authority identified the nature of the section 7116(a)(6) violation as follows:

[W]ith regard to the finding of a violation of section 7116(a)(6) of the Statute, the Authority finds that the Respondent's implementation of the Order [the management initiated change] essentially con- [ v55 p81 ] stituted a failure to allow the Panel to take appropriate action with respect to the unresolved bargaining issues and therefore constituted a failure to cooperate with impasse procedures as required by the Statute.

BATF, 18 FLRA at 472. The Authority recognized that "cooperation" required forbearance on the part of an agency, so that the Panel could determine the proper course of action prior to management's making the change it wanted. Such action presumably could include dismissal because no impasse existed. Thus, it is not surprising to me that there are cases subsequent to BATF that do not specifically cite the existence of an impasse. I do not find such decisions to reflect an inconsistent application of our precedent, because the fundamental requirement of maintaining the status quo while a Panel request is pending has remained constant. See DHSS; Department of Health and Human Services, Health Care Financing Administration v. FLRA, 952 F.2d 398 (4th Cir. 1991) enforcing 39 FLRA 120 (unpublished table opinion); NAGE v. FLRA, 893 F.2d at 382.

The majority refers to a Panel comment made over ten years ago to the effect that labor organizations interpreted BATF as requiring the invocation of Panel assistance as the only means of preserving the status quo, and that such an interpretation reflects a misreading of BATF. The Authority addressed the Panel's concerns, at least indirectly, in its Order Denying Request for General Ruling, 31 FLRA 1294, 1295-96 (1988). The ensuing ten years have not revealed any misunderstanding by the parties. The Authority's case law has established a well known rule which rarely has been transgressed: when the Panel has the case, implementation should be avoided. Unions obviously know that the status quo is to be maintained in situations where Panel assistance has not been requested, since they file charges about unilateral implementation under section 7116(a)(5), notwithstanding their not having gone to the Panel. See, e.g., U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690 (1991) (agency violated section 7116(a)(5) when it implemented change before negotiations were complete).

This case does not exemplify "confusion" regarding section 7116(a)(6). Slip op. at 20. It is of little consequence that "in attempting to excuse its implementation under section 7116(a)(6) -- by asserting that the parties had not bargained to impasse -- the agency's argument may actually establish that the implementation was unlawful under section 7116(a)(5)." See id. If the law has been violated, it should be acknowledged. The majority states that "if the parties had bargained to impasse, the Union would have been obligated to seek Panel assistance in order to require maintenance of the status quo under section 7116(a)(5) of the Statute." Slip op. at 20, n.15. The parties did bargain to impasse, as evidenced by the Agency's threatened -- and then actual --implementation and the Panel's assumption of jurisdiction over the Union's request for assistance.

The majority's characterization of the union's need to proceed to the Panel is a correct statement of the law, because a failure to seek Panel assistance can be viewed as an abandonment of the bargaining process. Thus, a union's need to invoke Panel procedures to preserve its legal position in the unfair labor practice arena will continue to exist under the new framework announced today. Since "impasses" are determined based upon the entire bargaining conduct of the parties during their negotiations, [n3] a union would still be well advised to seek Panel involvement in the face of a threat or plan to implement a change prior to the conclusion of bargaining. I say this because implementation by an agency prior to reaching an agreement is a very strong indication that the parties have reached a "point in negotiations at which [they] are unable to reach agreement", and thus are at an impasse. Department of Defense, Department of the Navy, Naval Ordnance Station, Louisville, Kentucky, 17 FLRA 896, 897 (1985). In fact, I think that it is so strong an indication that it is virtually a per se impasse in those circumstances. [n4]

Thus, there is no evidence of an on-going confusion or abuse of Panel procedures by unions seeking refuge, in this or other cases. In any event, if there were [ v55 p82 ] abuse of Panel procedures by unions invoking them for the sole purpose of blocking implementation, and without a genuine desire to resolve an impasse, an agency would be free to file an unfair labor practice charge against the union under section 7116(b)(5) or (6). Furthermore, an agency may always legally implement its proposal while Panel action is pending, if it is necessary for the functioning of the agency.

More fundamentally, it appears that the terms of the Statute itself require a result different from that reached by the majority. Section 7116(a)(6) makes it an unfair labor practice to fail to cooperate in "impasse procedures." Certainly, impasse procedures include the invocation of Panel assistance through the "request" that is required as the first step of the Panel's process. See 5 C.F.R. 2471.1. Moreover, there is nothing that suggests that the Panel's examination of its own jurisdiction is not an integral part of an "impasse procedure" within the meaning of section 7116(a)(6). Unilateral implementation of the agency's proposal can hardly be viewed as cooperation with the impasse resolution process.

The majority believes that section 7116(a)(6) requires the procedure or decision of the Panel to require explicitly the maintenance of the status quo, and rejects the idea that there is an implied obligation to maintain the status quo as previously held for 20 years by the Authority. Slip Op. at 22. While I agree that we look at the plain meaning of the words of the statute, I note that all laws require an interpretation of words so as to effectuate Congressional intent. If we are to become such literal readers of the Statute, I am concerned that the next step will be to eviscerate the status quo requirement under section 7116(a)(5) because it too must be inferred from the duty to bargain in good faith, as it is not explicitly stated. In that regard, I am guided by the Supreme Court, which stated that

in expounding a statute, we [are] not...guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.

Massachusetts v. Morash, 490 U.S. 107, 115 (1989) quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987). The policy considerations here -- stability, maintaining an even playing field, and permitting the Panel to assess the action it will take without allowing an agency to make a preemptive strike -- all militate in favor of interpreting "cooperation with impasse procedures" broadly.

The Court of Appeals in California has interpreted statutory language similar to that of sections 7116(a)(5) and (6). The court has found that, in the absence of an affirmative defense, it is a per se unfair labor practice for an agency to implement a change in conditions of employment while impasse procedures are pending. See Moreno Valley Unified School District v. Public Employment Relations Board, 142 Cal.App. 3d 191, 195 (1983) (Moreno Valley). Like our Statute, the California Code does not contain an explicit status quo requirement. I find the court's analysis to be instructive.

California's public sector labor law, like our Statute, imposes two distinct requirements: good faith bargaining and good faith participation in impasse procedures. Cal. Gov't. Code, §§ 3543.5(c) and (e). The court noted the differences between the state law and the National Labor Relations Act, insofar as the former has a mandatory impasse procedure, and the latter does not. As a result, the court affirmed the Public Employee Relations Board's view that reaching an impasse under the state law would not permit the employer to implement its last best offer, in contrast to private sector law. [n5] Moreno Valley at 195-96. The court approved the Board's analysis that a private sector impasse suggests that "pressure tactics" may begin by either side through strike or implementation, whereas the state statutory scheme called for maintenance of the status quo. Id. at 195. The court cited the negative impact of implementation during the pendency of impasse procedures as follows: destabilization in employer-employee affairs; protection against employer derogation of the exclusive representative's position in the employees' eyes; promotion of negotiating equality; and prevention of an unfair shift of pressure to employees and their unions in light of the public employer's special accountability. Id. at 195-96. [ v55 p83 ]

The court further stated:

The statutory scheme unmistakably comprehends that an impasse may be declared only when meeting and negotiating have come to an end. This is further borne out by the fact that failure to meet and negotiate in good faith, and failure to participate in good faith in the statutory impasse procedure, are made separate unlawful practices for both employers and employee organizations. If participation in the meeting and negotiating process included participating in the impasse procedure, sections 3543.5, subdivision (e) and 3543.6, subdivision (d) [regarding the requirement to participate in impasse procedures] would be wholly superfluous.

Id. at 198. [n6] This analysis is applicable to our Statute because of the difference between private and public sector labor law, the distinct purposes of statutory impasse provisions, and the separate requirements for good faith bargaining and cooperation with the Panel. Section 7116(a)(6) independently requires maintenance of the status quo.

California is not unique. In Maine, the "implementation of a last best offer prior to completion of requested impasse resolution procedures [] constitute[s] a per se violation of the obligation to bargain in good faith." Mountain Valley Education Association v. Maine School Administrative District No. 43, 655 A.2d 348, 352 (Sup. Jud. Ct. ME 1995). [n7] Pennsylvania has recognized the requirement to maintain the status quo once the mandatory, exclusive interest arbitration procedures of the law covering firefighters and police are invoked. Borough of Geistown v. PLRB, 153 LRRM 2687 (1996). Likewise, the courts in Alaska have recognized that state employees who cannot strike should not be subject to an agency's unilateral implementation of changes in conditions of employment while statutory arbitration proceedings are pending. Alaska Public Employees Association v. State of Alaska, 776 P.2d 1030, 1031 n.6 (Sup. Ct. AL 1989). Justice Rabinowitz highlighted the policy reasons for precluding unilateral change during statutory impasse proceedings as follows:

First, since employees are precluded by statute from striking during mediation periods, it would be unfair to allow an employer, shielded from employee economic force, to impose unilateral changes in working conditions. Second if an employer were permitted to impose unilateral changes during mediation, it would have less incentive to bargain over issues subject to the change.

Id. at 1034 (concurring opinion). The second point applies to the federal sector, because bargaining does not stop when Panel procedures are invoked. The Panel has stated that it "is part of the collective bargaining process, and urges parties to seek voluntary settlements at any stage of its consideration of an impasse." Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island and Rhode Island Chapter, Association of Civilian Technicians, 94 FSIP 35, 1994 WL 160407 (F.S.I.P.) at 2 n.1. Implementation of the agency's last offer does not foster continuing bargaining.

The Authority's longstanding practice of requiring the maintenance of the status quo while the Panel's impasse procedures are being used encompasses these policy considerations and recognizes the special status of these procedures in the federal sector bargaining process. Federal unions cannot strike, and their bargaining power as an equal partner to management is seriously undermined if implementation of the agency's plan is permitted while the Panel assesses its jurisdiction and the relative value of the parties' proposals. Preservation of the status quo when Panel procedures are invoked makes good sense as a policy matter.

In the absence of such stability of working conditions, Panel action would be rendered moot in many cases. See U.S. Army Corps of Engineers, South Pacific Division, San Francisco, California and Local 49, International Federation of Professional and Technical Engineers, 98 FSIP 64, 1998 WL 267875 (F.S.I.P.) at 7 (six proposals rendered moot by virtue of implementation of RIF); Social Security Administration, Hanover Branch Office, Hanover, MA and Local 1164, AFGE, AFL-CIO, 98 FSIP 69, 1998 WL 219739 (F.S.I.P.) at 2 (one proposal rendered moot due to accomplishment of renovations). Reliance on the possibility of a status quo ante remedy in a bad faith bargaining context under section 7115(a)(5) is unlikely to protect the continued viability of Panel action in light of the Authority's historical hesi- [ v55 p84 ] tation to order a return to the conditions existing prior to a bargaining unfair labor practice. See, e.g., United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 47 FLRA 225 (1993); Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575 (1992); Federal Aviation Administration, Washington, D.C., 19 FLRA 436 (1985); Immigration and Naturalization Service, Eastern Regional Office (Burlington, Vermont), 18 FLRA 875 (1985).

In accord with various state courts and for the reasons stated above, I view implementation while statutory impasse proceedings are pending to be a per se unfair labor practice, absent proof that implementation was necessary for the agency to function. In response to my viewpoint, the majority points out our precedent that excuses implementation under some circumstances, even when a matter is pending before the Panel. In doing so, they contend that a per se violation under 7116(a)6) is inconsistent with the availability of defenses to an unfair labor practice complaint. In fact, "per se" is defined as "by itself; in itself; taken alone; . . . unconnected with other matters. . . ." Black's Law Dictionary, Sixth Ed., 1990. A per se violation does not mean that affirmative defenses are unavailable. See, e.g., The Mozart Company v. Mercedes Benz of North America, Inc., 833 F.2d. 1342, 1348-49) (a business justification defense is permitted in response to a tying arrangement that is a per se violation of antitrust laws), cert. denied, 488 U.S. 870 (1988); King v. Sioux City Radiological Group, P.C., 985 F. Supp. 869, 878-79 (N.D. Iowa 1997) (defamation per se may be defeated by affirmative defenses of truth or qualified privilege). Here, unilateral implementation is an unfair labor practice, absent other facts that justify it.

The "necessary for the agency to function" defense described in BATF provides such a justification for unilateral implementation, and it applies when there is an underlying duty to bargain. It is a defense which is distinguishable from those mentioned in footnote 9, above, because those cases all deal with defenses to the underlying duty to bargain. In EEOC II, the judge aptly described the interplay between the status quo requirement under (a)(6) and the defenses to a unfair labor practice complaint for premature implementation where no bargaining obligation exists.

The foregoing conclusion [that there was no ULP committed because the matter was covered by the parties' agreement] is not inconsistent with the notion that an agency must maintain the status quo to the maximum extent possible while the Panel decides what action to take with respect to a matter referred to it for consideration. While that doctrine promotes stability in Federal labor-management relations by permitting the collective bargaining process to be completed before the status quo is disrupted, its underlying assumption is that the parties in question had a mutual obligation to bargain collectively concerning the matter(s) referred to the Panel. Where the parties have no such statutory duty to bargain in good faith, the status quo doctrine has no applicability.

EEOC II, 52 FLRA at 473.

It is important to note that in this case, the Agency does not contend that there was no underlying duty to bargain. The Respondent's sole challenge to the Judge's determination that an unfair labor practice occurred is on the alleged basis that an impasse had not been reached, thereby foreclosing the determination that there was a violation of section 7116(a)(6). The Agency has not argued that the matters over which the Union sought to negotiate were already covered by a collective bargaining agreement or were otherwise non-negotiable or outside the duty to bargain.

I am not persuaded that the existence of overlapping obligations to maintain the status quo under sections 7116(a)(5) and (6) militate against our prior holdings that (a)(6) requires maintenance of the status quo. [n8] We often find that different subsections are implicated by the same violation. See, e.g. Department of Housing and Urban Development, Pennsylvania State Office, Philadelphia, Pennsylvania, 53 FLRA 1635 (1998) (violations of section 7116(a)(1 and (2) found from one instance of discrimination); U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79 (1997) (violations of section 7116(a)(1) and (5) found arising from one instance of failure to bargain). References to "confusion and potential for resource misuse", slip op. at 21-22, are based on pure speculation. On the other hand, maintenance of the separate status quo requirements under (a)(5) and (a)(6) highlight the importance of the statutory impasse procedures in the public sector. While agencies may implement "at their peril" under (a)(5), under my view of precedent properly applied, they would be precluded by (a)(6) from implementing unless it was necessary for the agency to function. This narrow exception serves to [ v55 p85 ] balance unions' rights with the needs of the government to operate effectively and efficiently.

Today's break with precedent further erodes the unions' standing as an equal partner with management, and thereby undermines the promotion of the President's partnership policies. It will not advance the public interest or the requirement of an effective and efficient government. Certainly it will not encourage the amicable settlement of disputes, nor will it assist the Panel. It will only serve the interests of those agencies which seek to implement prior to the conclusion of negotiations with less legal or practical difficulty. Yes, implementation is "at their peril," but the final, successful adjudication of a unfair labor practice charge, perhaps several years after unlawful implementation, is a poor manner of effectuating the purposes of the Statute. I would not abandon our time-honored approach to maintenance of the status quo under section 7116(a)(6), because I think that our historical approach was consistent with the Congressional intention that the Statute be "construed broadly to achieve its remedial purposes." 124 Cong. Rec. 13610 (daily ed. Oct. 14, 1978) (statement of Rep. Ford).

The majority is correct in identifying the anxiety caused by their decision. Slip op. at 24, n.19. However, they miss the mark in identifying the source. My anxiety cannot be attributed to the General Counsel's pleading and prosecution of future cases, as the majority implies. I have no doubt that the General Counsel will read this decision and incorporate the impact into future litigation. Rather, my concern arises from the diminution of the importance of Panel procedures and the shift from the clear-cut guideline on the status quo that the parties have followed in their daily relationships, outside the hallowed halls of the Authority.

The narrow construction of our Statute present in today's majority decision runs counter to Congress' stated support for bargaining. Congress found that collective bargaining is in the public interest. 5 U.S.C. § 7101(a). The labor-management relationship is fundamentally a power relationship, which Congress sought to circumscribe in the federal sector by restricting labor's right to strike and management's right to implement changes at will. If the limits on labor are maintained, and the flexibility that agencies have is expanded, as today's decision does, I believe that this relationship is adversely affected. Parsing the terms of the Statute in a manner that is unrelated to the day-to-day reality of the work place will undermine the stability of working conditions by encouraging premature implementation of management initiatives and by creating a context in which the Panel will be considering management proposals that have become a fait accompli. Maintenance of the status quo when Panel procedures have been invoked is required by section 7116(a)(6) and is a necessary component of the carefully balanced rights and obligations of labor and management in the federal sector. The Authority has been charged with providing leadership in establishing sound labor-management relations policies, consistent with the purposes of Chapter 71. 5 U.S.C. 7105(a)(1). In my view, today's decision fails to do that, as the Authority turns its back on a longstanding and correct reading of the Statute and rejects the clear policy reasons for the precedent that we cast aside.

File 1: Authority's Decision in 55 FLRA No. 19

File 2: Opinion of Member Wasserman

File 3: ALJ's Decision

Footnote # 1 for
55 FLRA No. 19

• Opinion of Member Wasserman

The Judge also found a violation of section 7116(a)(5). While I do not join my colleagues in their view that this is a "derivative" violation, I need not analyze that issue because it may be resolved on remand.

Footnote # 2 for
55 FLRA No. 19

• Opinion of Member Wasserman

Notwithstanding the Panel's having assumed jurisdiction and rendering a decision on the impasse, the Respondent argues that the Judge failed to determine whether an impasse existed. In that regard, the Respondent points to some evidence that mediation occurred in December, 1992, after the request for assistance was filed, after implementation, and prior to the Panel's assertion of jurisdiction. There is no doubt, however, that the Panel ultimately assumed jurisdiction over the request that was filed prior to the implementation date. The Respondent does not ask that BATF be overturned; it simply argues that the preconditions for its application had not been met. The majority minimizes the Panel's obvious determination that an impasse existed, and uses the Respondent's limited argument as a springboard for reviewing the meaning of section 7116(a)(6), generally. In so doing, the majority rejects the Panel's view of its jurisdiction in this case, along with the view, shared by the Charging Party, General Counsel, Judge and the Respondent, that BATF -- however interpreted -- is controlling precedent.

Footnote # 3 for
55 FLRA No. 19

• Opinion of Member Wasserman

See, e.g., Davis-Monthan Air Force Base, Tucson, Arizona, 42 FLRA 1267, 1278 (1991).

Footnote # 4 for
55 FLRA No. 19

• Opinion of Member Wasserman

The majority describes my viewpoint as proposing a modification of the law. Slip op. at 14, n.11. While I continue to adhere to a "totality of the circumstances" analysis, it is the majority who make a change by today's decision. The claim that there is "scant support" for my opinion, supra at n.11, must refer to the scarcity of cases filed under section 7116(a)(6). The Authority and courts have rarely considered section 7116(a)(6) violations because the parties know and follow our longstanding rule of maintaining the status quo while Panel procedures are pending. The imposition of the majority's revised view of our law will result in a clear reduction of union rights: maintenance of the status quo while at the Panel is no longer mandatory; implementation is merely "at the agency's peril."

Footnote # 5 for
55 FLRA No. 19

• Opinion of Member Wasserman

In the private sector, an employer may implement its last, best offer upon reaching a genuine impasse. This concept applies equally in the federal sector, if a union does not request Panel assistance. Department of Defense, Department of the Navy, Naval Ordnance Station, Louisville, Kentucky, 17 FLRA 896, 897-98 (1985). Unlike California law, the Statute does not mandate impasse procedures, but leaves it up to the parties. As noted above, if a union fails to request Panel assistance in a timely manner, it can be viewed as a waiver.

Footnote # 6 for
55 FLRA No. 19

• Opinion of Member Wasserman

The court declined to find an unfair labor practice based upon bad faith bargaining, and overruled the Board in that respect. This highlights the separate purposes of each subdivision.

Footnote # 7 for
55 FLRA No. 19

• Opinion of Member Wasserman

Maine's labor law differs from the Statute in that there is no separate unfair labor practice section regarding participation in impasse procedures. See 26 M.R.S.A. § 964.1. The requirement to participate in impasse procedures is found in section 965.1 which describes the obligation to bargain. As a result, the unfair labor practice must fall within the rubric of bad faith bargaining. The court's holding is nonetheless instructive because it requires maintenance of the status quo while impasse procedures are pending.

Footnote # 8 for
55 FLRA No. 19

• Opinion of Member Wasserman

While I appreciate the majority's reassurances that nothing has changed under section 7116(a)(5), supra at 8, I disagree. Simply put, I view the result of the majority decision as a reduction in union rights without a proper basis in the Statute. The explanation of the decision makes the change appear inconsequential; reality suggests otherwise.

[ v55 p86 ]

Office of Administrative Law Judges

UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, WASHINGTON, D.C.

Respondent

and

NATIONAL BORDER PATROL COUNCIL

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

Charging Party

Case No. SF-CA-30165

Amy V. Dunning, Esq.

Counsel for the Respondent

R. Timothy Sheils, Esq.

Counsel for the General Counsel, FLRA

Mr. T.J. Bonner

Representative of the Charging Party

Before: GARVIN LEE OLIVER

Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1), (5) and (6) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1), (5), and (6), by implementing its new Air Operations Manual, thereby changing conditions of employment, while the matter was pending before the Federal Service Impasses Panel (herein the Panel or FSIP).

A hearing was held in San Diego, California, at which the General Counsel and the Respondent were afforded full opportunity to adduce evidence, to call, examine and cross-examine witnesses, and to argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered. [n1]

Upon the entire record in this case, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following:

Findings of Fact

The National Border Patrol Council, American Federation of Government Employees, AFL-CIO, is the exclusive represen-tative of a nationwide consolidated unit of the Respondent's Border Patrol agents appropriate for collective bargaining. Between 50 and 60 of the unit employees are pilots who patrol the northern, southern and western borders of the United States in fixed-wing and helicopter aircraft, searching for and interdicting illegal immigration in coordination with Border Patrol agents on the ground.

According to Respondent, the pilots--who operate in 13 different sectors located in three of its four regions- had not been following completely standardized procedures. In order to achieve the desired standardization, which it thought would promote air safety, the Respondent in May 1992 proposed to issue an Air Operations Manual. [n2] Toward that end, the Respondent's Director of Personnel in Washington, D.C., Marylou Whelan, sent a letter dated May 20, 1992, to Union President T.J. Bonner's office in Campo, California, enclos-ing a copy of the proposed Air Operations Manual for the Union's comments and/or proposals. [n3] By inadvertence, the enclosure sent to and received by Bonner omitted every other page of the two-sided Manual. When the error was called to management's attention, Bonner received a complete copy of the Manual on June 8 and the parties agreed that he would have the contractual 30-day period--that is, until July 8--to respond. [n4]

On July 8, Bonner sent a 13-page letter to the Respondent in which he expressed concerns with respect to certain provi-sions of the Manual; asked questions about some provisions; offered some preliminary proposals; and requested specific information deemed [ v55 p87 ] necessary for the Union to formulate addi-tional proposals. [n5] At the conclusion of his letter, Bonner made it clear that "[t]he foregoing questions, concerns, and proposals are by no means all-inclusive. Following the receipt of the information requested herein, and a reasonable period of time in which to review said material, the Union will submit additional bargaining proposals, and will suggest dates for the commencement of formal negotiations." Bonner further requested that implementation of the Manual be held in abeyance pending the completion of negotiations. Consistent with his established practice, Bonner also sent a copy of his 13-page letter to the Respondent by telefacsimile ("fax") that same day.

By letter dated July 17, the Respondent provided some of the information requested by the Union on July 8 but refused to furnish other information; answered the questions raised by the Union on July 8; and concluded by notifying the Union that "[b]argaining is scheduled during the week of July 27-31 at the USBP Sector Headquarters, San Diego, California." Because the Respondent did not follow Bonner's practice of faxing as well as mailing correspondence to the Union, the July 17 letter actually arrived at Bonner's office in California on Friday afternoon, July 24, too late (given the 3-hour time difference) for Bonner to call the Respondent's represen-tative, Al Hilliard, in Washington to postpone the negotiations which management had scheduled to start the following Monday morning (July 27) without consulting the Union. [n6] Therefore, Bonner mailed and faxed a letter to the Respondent the following day (Saturday, July 25) declaring July 27 unacceptable, but expressing the Union's willingness to negotiate "at the earliest practicable time" and suggest-ing that the Respondent "contact this office to schedule a mutually satisfactory time and place to conduct said negotia-tions."

On August 10, over two weeks later, the Respondent acknowledged receipt of the Union's July 25 letter which found July 27 unacceptable for negotiations and requested to negotiate ground rules. Seeking "to proceed expeditiously and avoid all unnecessary delays," the Respondent proposed either the week of September 8-12 or 14-18 as dates to begin formal negotiations in San Diego, and suggested that ground rules could be bargained on the first day of negotiations. The Union responded with two separate letters dated August 28. One answered the Respondent's request for additional explana-tion concerning the Union's need for certain information that management previously had denied; the other enclosed the Union's proposed ground rules, including one which suggested that "[t]he site for the initial bargaining sessions shall be Marfa, Texas." [n7]

By letter dated September 3, the Respondent rejected the Union's justification for additional information and accused the Union of "attempt[ing] to delay and frustrate the bargaining process." The following day, September 4, the Respondent addressed the Union's ground rules proposals by again accusing the Union of bad faith bargaining in pro-posing Marfa, Texas in lieu of San Diego as the site of the negotiations, and by stating that "formal negotiations will be held in the metropolitan Washington, D.C. area." In addition, the Respondent addressed the other ground rules proposed by the Union. Specifically, the Respondent counter-proposed in part that each party would be responsible for the cost of travel, lodging and per diem incurred by the members of its negotiating team; that the parties would share the costs of the negotiating room in a mutually acceptable hotel in the Washington, D.C. area; and that rather than hold the imple-mentation of the Manual in abeyance pending completion of negotiations, as proposed by the Union, "[i]f the parties have not reached a mutual agreement on negotiations prior to September 14, the Manual will be unilaterally implemented on that date." [n8]

The Respondent's September 4 letter reached the Union on the afternoon of September 10. As Bonner [ v55 p88 ] read management's final counter-proposal, the Manual was about to be implemented in about three days because there was no chance of reaching a mutual agreement on negotiations before then. [n9] Accordingly, Bonner immediately sent a letter to both the Federal Mediation and Conciliation Service (FMCS) and the FSIP on September 11, requesting their assistance in this matter. He also sent a letter and a fax that day to the Respondent, attaching a copy of the Union's requests for assistance to the FMCS and the Panel, and reiterating that the Respondent should not imple-ment the Manual until all phases of bargaining have been completed. Although the Panel acknowledged the Union's filing of a request for assistance by letter to both parties dated September 15, [n10] the Respondent thereafter notified the Union by letter dated September 23 that the Manual would be implemented effective October 1. Implementation occurred on that date, as the Respondent had announced.

Discussion and Conclusions of Law

As previously indicated, the complaint in this case alleges that the Respondent violated section 7116(a)(1), (5) and (6) of the Statute by implementing its new Air Operations Manual while the Union's request for assistance was pending before the Panel. While the parties expended considerable effort at the hearing and in their post-hearing briefs arguing about who was responsible for the failure to reach agreement on ground rules and therefore for preventing negotiations over the impact and implementation of the Respondent's decision to issue the new Manual, I find such questions irrelevant to the disposition of the issues raised by the complaint in thiscase. [n11] Thus, there is no allegation that either the Respondent or the Union bargained in bad faith before the dispute was referred to the Panel. The only allegation is that the Respondent violated the Statute by implementing the Manual while the matter was pending before the Panel.

Where such an allegation is made, the pivotal issues are:(a) whether the Respondent implemented a change in working conditions despite the Union's timely invocation of the Panel's processes, and if so, (b) whether the Respondent has established as an affirmative defense that its actions were consistent with the necessary functioning of the agency. Thus, under well established Authority precedent carried over from the policy under Executive Order 11491, as amended, [n12] once parties reach an impasse in their negotiations and one party timely invokes the services of the Panel, the status quo must be maintained to the maximum extent possible, i.e., to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466, 468-69 (1985) (BATF); [ v55 p89 ] Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 950 (1990) (DHHS). [n13] A failure or refusal to maintain the status quo during such time would, except as indicated above, constitute a violation of section 7116(a)(1),(5) and (6) of the Statute. BATF, 18 FLRA at 469; United States Marine Corps, Washington, D.C., et al., 42 FLRA 3, 13-15 (1991). [n14]

A. Respondent Changed Working Conditions While The Matter Was Pending Before The Panel

In this case, the Respondent changed working conditions by implementing its Air Operations Manual on October 1 even though it knew that the Union had invoked the Panel's services on September 11 by requesting assistance in resolving a dispute over ground rules in preparation for negotiating over the impact and implementation of management's decision to issue the Manual. [n15] Respondent does not and cannot dispute that it knew of the Union's filing with the Panel. Indeed, the Respondent not only received a mailed and faxed copy of the Union's September 11 request to the Panel, but also a letter from the Panel dated September 15 acknowledging receipt of the Union's request. [n16] It is also undisputed that, by implementing the Manual, the Respondent effectuated changes in the pilots' conditions of employment (see n.5, supra). [n17] Accordingly, the only remaining question is whether the Respondent has established that its unilateral implementation of the Manual was consistent with the necessary functioning of the agency. See HUD, Kansas City, 23 FLRA at 437.

B. Respondent Failed To Establish That Implementation Of Its Manual Was Consistent With The Necessary Functioning Of The Agency

The record indicates that the Respondent decided to prepare and implement an Air Operations Manual in order to standardize procedures for pilots to follow in performing their mission in every sector of the Border Patrol. According to Douglas Keim, the Respondent's Chief of Air Operations, one of the first tasks he was given upon assuming that position in 1991 was to complete the Manual and thereby change the exist-ing system in which each sector operated somewhat differently from every other sector. [n18] In standardizing its air opera-tions, the Respondent sought to improve both safety and the maintenance and preservation of its aircraft. [ v55 p90 ]

A standardized air operations program was not a new concept within the Border Patrol, however. The record shows that the Respondent had considered adopting an Air Operations Manual as early as 1980, and that one of its own internal studies in 1988 recommended standardization of operations to increase air safety. Nevertheless, it was not until April 1991 that the Respondent issued and implemented its Air Operations Manual. As previously noted, however, the Re-spondent failed to meet its bargaining obligations on that occasion, and was charged with an unfair labor practice. On May 5, 1992, therefore, the Respondent voluntarily entered into a settlement whereby it agreed to rescind the Manual; return to its pre-existing policies; and bargain with the Union before re-issuing the Manual. It was the Respondent's notice to the Union dated May 20, 1992, of an intention to reissue the Manual which started the chain of events involved in this case

Without diminishing in any way the importance of the Respondent's desire to improve air safety and preserve its equipment, I conclude based on this record that implementation of the Manual on October 1--while the matter was pending before the Panel--was not consistent with the necessary func-tioning of the agency. That is, I find that the Respondent could have maintained the status quo until the Panel acted concerning the parties' dispute without compromising the necessary functioning of the Border Patrol's air operations program. Indeed, to the extent that the Respondent imple-mented the Air Operations Manual to improve air safety, the record evidence indicates that more aviation accidents occurred after the Manual was implemented than under the previous, more decentralized, system.

In reaching the foregoing conclusion, I note that the Respondent's actions have been inconsistent with its declaration that time was of the essence in implementing the new Manual. Thus, as stated above, the Respondent had been considering the adoption of a manual to standardize its air operations since 1980 but took no action--even after its own internal study in 1988 suggested that air safety could be enhanced thereby--until 1991. Even then, the Respondent's conduct belied any sense of urgency in implementing the Manual. When charged with an unlawful refusal to bargain in 1991 over the impact and implementation of its decision to issue the Manual which changed the pilots' working conditions, the Respondent chose to rescind the Manual voluntarily and return to the pre-existing practices rather than contest the appropriateness of a status quo ante remedy which would require rescission of the unilaterally implemented Manual. If the Manual were truly necessary to the functioning of its air operations program, the Respondent would have been acting irresponsibly by agreeing to discontinue the Manual.

Finally, I note that the Respondent's compliance with the well settled requirement to maintain the status quo to the maximum extent possible while a matter is pending before the Panel would not have created chaos in its air operations program. Such operations had been conducted effectively for years under a decentralized system in which each sector adopted policies that promoted its particular needs. Moreover, some standardization already existed by virtue of the applicability of the FAA's "rules of the road" to all domestic aviation--civilian and governmental alike. Accordingly, while the Respondent clearly had the right to adopt a standardized Manual to govern its air operations, it had no license to do so without complying with all of the requirements of the Statute. Respondent therefore violated section 7116(a)(1),(5) and (6) of the Statute in the circumstances of this case.

C. The Appropriate Remedy

The General Counsel requests that the Authority issue a status quo ante remedy, requiring the Respondent to rescind the Manual until the parties have completed bargaining, con-sistent with remedies ordered in similar cases of implemented changes in working conditions while the matter is pending before the Panel. Conversely, the Respondent contends that a status quo ante remedy would be inappropriate under the criteria set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), [n19] because the Union received timely notice that the Manual would be issued; the Respondent made extensive efforts to bargain with the Union; there was no evidence that employees have been adversely affected by implementation of the Manual; and rescission of the Manual would impair the safety of Respondent's operations.

I conclude that a status quo ante remedy is appropriate in the circumstances of this case. See, e.g., DHHS, 35 FLRA at 951-53. Thus, in applying the FCI factors, I note first that while the Respondent gave the Union notice of its intention to issue the Manual, such notice was compelled by the terms of an earlier settlement agreement to remedy the Respondent's issuance of the same Manual without providing any notice to the [ v55 p91 ] Union. Second, I find that the Respondent's conduct after the Union timely requested to bargain contri-buted substantially to the parties' failure to negotiate concerning the impact and implementation of the Respondent's decision to issue the Manual (n.11, supra), and that the violation found herein was willful in the sense that the Respondent implemented the Manual on October 1 intentionally with full knowledge that the Union had invoked the Panel's processes on September 11. Third, while there is no record evidence that any adverse actions have been taken against pilots for failing to comply with provisions of the Manual, some of the Manual's provisions (n.5, supra) adversely affect the pilots by placing greater responsibilities and less discretion upon them and by making them more vulnerable to removal from flight status. Finally, I conclude that the Respondent's operations would not be substantially disrupted or impaired by an order requiring a return to the status quo until bargaining has been completed. As previously noted, there is no record evidence that the Manual's standardizing provisions have resulted in a safer or less costly air operations program; rather, the record suggests that the rate of accidents has stayed the same or increased since the Manual was implemented.

Moreover, a status quo ante remedy is appropriate for a reason beyond the application of the FCI factors. Thus, this case involves more than the Respondent's refusal to bargain over the impact and implementation of its decision to issue a new Air Operations Manual. It involves the Respondent's issuance and implementation of the Manual while the matter was pending before the Panel. As the Authority has stated previously, "permitting an agency to implement a change in conditions of employment while a union's request for assistance is pending before the Panel would undermine the Panel's role in resolving impasses and is inconsistent with the purposes of the Statute." Department of Veterans Affairs, Veterans Administration Medical Center, Decatur, Georgia,46 FLRA at 346. In my judgment, the failure to order a return to the status quo under these circumstances would encourage parties to disregard the Panel's statutory role in the bargaining process and thereby undercut the purposes and policies of the Statute.

Finally, the General Counsel requests that the Respondent be ordered to rescind any adverse or disciplinary actions taken against unit employees which rely on the provisions of the Manual. While the record contains no evidence that any such actions have been taken, those matters can be addressed in the compliance phase of this proceeding. To the extent that any unit employees have been adversely affected by their failure to comply with the Manual's provisions, such actions should be rescinded.

Accordingly, having found that the Respondent violated section 7116(a)(1), (5) and (6) of the Statute as alleged in the complaint, I shall recommend that the Authority adopt the following:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the United States Immigration and Naturalization Service, Washington, D.C., shall:

1. Cease and desist from:

(a) Unilaterally implementing the Air Operations Manual applicable throughout the U.S. Border Patrol at a time that the impact and implementation of its decision to issue the Manual is pending before the Federal Service Impasses Panel.

(b) Failing or refusing to cooperate in impasse procedures as required by the Federal Service Labor-Management Relations Statute.

(c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Cease using the Air Operations Manual unilaterally implemented on October 1, 1992, and reinstate the policies and procedures which existed in the various sectors of the U.S. Border Patrol prior to that date. [ v55 p92 ]

(b) Rescind any adverse or disciplinary actions taken against bargaining unit employees because of their failure to comply with provisions of the Air Operations Manual unilaterally implemented on October 1, 1992, and make them whole for any loss of pay or benefits they may have suffered thereby.

(c) Maintain the status quo, to the maximum extent possible, while impasse proceedings are pending before the Federal Service Impasses Panel.

(d) Notify the National Border Patrol Council, American Federation of Government Employees, AFL-CIO, the exclusive representative of a nationwide bargaining unit of its employees, concerning any intent to issue an Air Operations Manual and, upon request, bargain with the Union concerning the impact and implementation of any such issuance.

(e) Post at the U.S. Border Patrol, copies of the attached Notice to All Employees on forms furnished by the Federal Labor Relations Authority. Upon receipt of the forms, they shall be signed by the Chief of Air Operations, U.S. Border Patrol, and they shall be posted and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the Notices are not altered, defaced, or covered by any other material.

(f) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Federal Labor Relations Authority, San Francisco Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, DC,

April 28, 1995

_______

GARVIN LEE OLIVER

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE

FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally implement the Air Operations Manual applicable throughout the U.S. Border Patrol at a time that the impact and implementation of our decision to issue the Manual is pending before the Federal Service Impasses Panel.

WE WILL NOT fail or refuse to cooperate in impasse procedures as required by the Federal Service Labor-Management Relations Statute.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL cease using the Air Operations Manual unilaterally implemented on October 1, 1992, and reinstate the policies and procedures which existed in the various sectors of the U.S. Border Patrol prior to that date.

WE WILL rescind any adverse or disciplinary actions taken against bargaining unit employees because of their failure to comply with provisions of the Air Operations Manual unilaterally implemented on October 1, 1992, and make them whole for any loss of pay or benefits they may have suffered thereby.

WE WILL maintain the status quo, to the maximum extent possible, while impasse proceedings are pending before the Federal Service Impasses Panel.

WE WILL notify the National Border Patrol Council, American Federation of Government Employees, AFL-CIO, the exclusive bargaining representative of a nationwide bargaining unit of our employees, concerning any intent to issue an Air Operations Manual and, upon request, bargain with the Union concerning the impact and implementation of any such issuance.

______

(Activity)

Date: _ By: ___

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, California 94103-1791, and whose telephone number is: (415) 744-4000

File 1: Authority's Decision in 55 FLRA No. 19

File 2: Opinion of Member Wasserman

File 3: ALJ's Decision

Footnote # 1 for
55 FLRA No. 19

• ALJ's Decision

The Respondent and the General Counsel have filed motions to strike portions of each other's brief. Both motions are denied. The record evidence itself, rather than the parties' characterizations of it, is controlling. Similarly, the relevance of other cases involving the same parties and what weight, if any, to accord them, are for me to determine in the first instance.

Footnote # 2 for
55 FLRA No. 19

• ALJ's Decision

The record indicates that the Respondent had considered issuing such a manual as early as 1980, but had finally done so in 1991. On that occasion, however, the Respondent had implemented the new Air Operations Manual without first notifying the Union and affording it an opportunity to bargain over the impact and implementation of the changes in bargaining unit employees' working conditions. Accordingly, as part of a settlement agreement with the General Counsel in Case No. SA-CA-20066, dated May 5, 1992, the Respondent agreed to rescind the Manual and, if it later chose to re-issue the Manual, to notify the Union and fulfill its bargaining obligation before implementation.

Footnote # 3 for
55 FLRA No. 19

• ALJ's Decision

The record indicates that while Ms. Whelan signed the letter, it (and all subsequent correspondence between the parties in this case) was actually written by Al Hilliard, a labor relations specialist also located in Washington, D.C., whom the letter designated as the appropriate management representative for the Union to contact.

Footnote # 4 for
55 FLRA No. 19

• ALJ's Decision

All dates herein refer to 1992 unless otherwise indicated.

Footnote # 5 for
55 FLRA No. 19

• ALJ's Decision

While the Manual sought to standardize certain practices which varied from sector to sector at the time, such as where pilots were authorized to land their aircraft and how unauthorized landings should be reported, a number of the Manual's provisions announced new policies. For example, the Manual required for the first time that pilots involved in an accident be tested physically and psychologically; that pilots must fly with a supervisory observer at least once every 90 days; that pilots must attend safety meetings every month; that it is the pilot's responsibility to check the aircraft for airworthiness before using it, rather than relying on the maintenance mechanics' inspection as previously; and that pilots may be removed from flight status by management for a variety of reasons which previously did not constitute grounds for such action.

Footnote # 6 for
55 FLRA No. 19

• ALJ's Decision

According to Bonner's undisputed testimony, the Respondent's unilateral announcement of bargaining dates was a departure from the parties' practice of establishing mutually acceptable dates by discussing the availability of all participants in telephone conversations. As Bonner indicated, in nationwide negotiations such as these, the Union's bargaining representatives came from diverse locations and could not be assembled without advance planning and coordination. The problems of scheduling were exacerbated during the summer months due to previously scheduled vacations. Hilliard confirmed that, in the past, it has required some coordination to establish mutually acceptable dates for bargaining.

Footnote # 7 for
55 FLRA No. 19

• ALJ's Decision

The record indicates that the Union proposed Marfa, Texas, because two members of its bargaining team who were experts on aircraft accident investigations and related safety issues lived in Marfa--one of the Respondent's sector headquarters.

Footnote # 8 for
55 FLRA No. 19

• ALJ's Decision

Bonner testified without contradiction that the Respondent's counter-proposal for the Union to pay the travel and per diem expenses of its negotiating team and to pay half the cost of the negotiating room were departures from past practice inasmuch as the Respondent previously had paid these costs in the same circumstances.

Footnote # 9 for
55 FLRA No. 19

• ALJ's Decision

Hilliard testified that sometime after September 4 but before September 11, he telephoned Bonner to explain that the Respondent's final counter-proposal did not mean that management was going to implement the Manual unilaterally on September 14, but was merely intended to get the Union to stop delaying and negotiate in good faith. Bonner denied that Hilliard ever called him during that period to clarify the Respondent's intent. I credit Bonner's testimony in this regard. Thus, the notes that Hilliard prepared and had with him while testifying--a chronology of events in this case--made no mention of any such telephone call. Moreover, Hilliard had not called Bonner for any other purpose connected with these negotiations even though it would have expedited the process if he had done so. Hilliard seemed to prefer written communications, and I conclude that it would have been uncharacteristic of him to call Bonner over this matter, especially since such a clarifying call would have undercut the reason why the Respondent made the statement in the first place: to "scare" the Union into negotiating quickly by threatening unilateral implementation.

Footnote # 10 for
55 FLRA No. 19

• ALJ's Decision

The Panel subsequently accepted jurisdiction over the dispute and issued a final decision and order concerning ground rules in Case Nos. 92 FSIP 238 et al. on May 13, 1993.

Footnote # 11 for
55 FLRA No. 19

• ALJ's Decision

In reality, both the Respondent and the Union contributed to the failure of bilateral problem-solving that occurred in this case. The Respondent contributed by failing to provide the Union with a complete copy of the proposed Manual at the outset; then by declaring the dates and place of negotiations without consulting the Union as it had in the past; by communicating the foregoing information to the Union in a letter which arrived just before the "scheduled" negotiations were supposed to begin; by later unilaterally determining that negotiations would be held in the Washington, D.C. area even though the Union had proposed Marfa, Texas; by proposing that the Union should pay the travel and per diem expenses of its negotiating team and share the cost of the negotiating room in the hotel to be selected by the parties, even though the Respondent had paid all of those expenses in the past; and by notifying the Union only several days in advance that the Manual would be implemented unilaterally "if the parties have not reached a mutual agreement on negotiations prior to September 14[.]" For its part, the Union never proposed dates for negotiations which were acceptable to the Union's negotiating team; did not advise the Respondent that San Diego was unacceptable to the Union as a negotiating venue when the Respondent twice proposed it; and, while the Union sought to expedite communications between the parties by faxing as well as mailing all of its correspondence to the Respondent, Bonner never called Hilliard in an effort to arrive at a mutually acceptable time and place for negotiations, instead stating that the Respondent should contact the Union.

Footnote # 12 for
55 FLRA No. 19

• ALJ's Decision

See Internal Revenue Service, 6 FLRC 311, 320 and n.18 (1978); Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 6 FLRC 414, 417-18 (1978).

Footnote # 13 for
55 FLRA No. 19

• ALJ's Decision

See also U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435, 436-37 (1986) (HUD, Kansas City); Department of Veterans Affairs, Veterans Administration Medical Center, Decatur, Georgia, 46 FLRA 339, 345 (1992); Department of Health and Human Services, Health Care Financing Administration, 39 FLRA 120, 131-32 (1991) (HCFA), enforced, No. 91-1068 (4th Cir. 1991).

Footnote # 14 for
55 FLRA No. 19

• ALJ's Decision

The same conduct not only violates section 7116(a)(6) of the Statute because it constitutes a failure or refusal to cooperate in the Panel's impasse resolution procedures, but it also violates section 7116(a)(5) because "the impasse reso-lution procedures of the Panel comprise one aspect of the collective bargaining process." Department of Health and Human Services, Social Security Administration, 44 FLRA 870, 883 (1990); HCFA, 39 FLRA at 131-32.

Footnote # 15 for
55 FLRA No. 19

• ALJ's Decision

Respondent contends that it was free to implement the Manual rather than maintain the status quo because the Union requested the Panel's assistance prematurely, i.e., before the parties had reached a bargaining impasse and before they had utilized and exhausted the services of the FMCS. However, as the Authority has found in similar circumstances, allowing an agency to speculate as to what action the Panel will take after implementation would undermine the important role played by the Panel in collective bargaining under the Statute. DHHS, 35 FLRA at 950. Accordingly, even if the Panel had declined jurisdiction over the dispute in this case, the Respondent's implementation of the Manual while the matterwas pending before the Panel would have been improper. I note, however, that the Panel in fact accepted jurisdiction and resolved the dispute herein after the Respondent's imple-mentation of the Manual. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and National Border Patrol Council, American Federation of Government Employees, AFL-CIO, 92 FSIP 238, et al. (May 13, 1993).

Respondent further contends that its implementation of the Manual was an exercise of reserved management rights under section 7106(a)(1) of the Statute which could not be restricted by the pendency of a dispute before the Panel, citing U.S. Department of Justice, Immigration and Naturali-zation Service v. FLRA, 995 F.2d 46, 48 (5th Cir. 1993). The Authority has not adopted the Fifth Circuit's view, however. Accordingly, I am constrained to follow existing Authority precedent on the issue. Department of Health and Human Services, Region V, Chicago, Illinois, 26 FLRA 460, 467 n.3 (1987), rev'd as other matters sub nom. FLRA v. Department of Health and Human Services, Region V, Chicago, Illinois, No. 87-1147 (D.C. Cir. Aug. 9, 1990); U.S. Department of the Army, Fort Stewart Schools, Fort Stewart, Georgia, 37 FLRA 409, 416 (1990).

Footnote # 16 for
55 FLRA No. 19

• ALJ's Decision

Moreover, I take official notice that on September 29--three days before the Respondent implemented its Manual--the Panel received an undated letter from the Respondent urging the Panel to decline jurisdiction over the parties' ground rules dispute initiated by the Union's September 11 request (92 FSIP 238). Obviously, the Respondent knew of the Union's request to the Panel in time to file a response before implementing the Manual.

Footnote # 17 for
55 FLRA No. 19

• ALJ's Decision

Indeed, the Respondent's notice to the Union that a new Manual would be issued and its stated willingness to bargain concerning impact and implementation demonstrates that the pilots' conditions of employment would be changed once the Manual went into effect.

Footnote # 18 for
55 FLRA No. 19

• ALJ's Decision

As Keim explained, some sectors followed the Federal Aviation Administration (FAA) guidelines, while others followed the applicable military guidelines, depending on their particular needs and the type of aircraft--military or civilian--they were using. All sectors were governed by the FAA's "rules of the road," which dictated how every aircraft (whether private or governmental) was to be operated in a variety of airspace conditions within the United States.

Footnote # 19 for
55 FLRA No. 19

• ALJ's Decision

In FCI, the Authority enumerated certain factors it would consider in determining whether to issue a status quo ante order to remedy an agency's failure or refusal to bargain over the impact and implementation of its decision to exercise a management right which changed employees' working condi-tions. The factors identified by the Authority in FCI are: (1) whether, and when, notice was given to the union by the agency concerning the action or change decided upon; (2) whether, and when, the union requested bargaining on the procedures to be observed by the agency in implementing such action or change and/or concerning appropriate arrangements for employees adversely affected by such action or change;(3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute;(4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. 8 FLRA at 606.