U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals and American Federation of Government Employees, Local 3525 (Authority decision, May 7, 1999)

Read the official release (flra.gov)

Final FLRA decision. This unfair labor practice order resolves the case before the Authority. Under 5 U.S.C. § 7123(a), an aggrieved party generally has 60 days from issuance to seek judicial review. A review petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The Board of Immigration Appeals had considered every attorney request for a flexiplace work arrangement over more than two years, granting eight of nine. While the union's flexiplace proposal was before the Federal Service Impasses Panel, the Board declined to consider three new requests. The Authority held that considering requests on their merits was an established practice and that suspending it before bargaining ended violated the duty to bargain in good faith. It ordered the Board to consider the affected requests, restore qualifying annual leave, and post a notice. The Authority did not decide the separate allegation about failure to cooperate with impasse procedures because that finding would add no remedy. Member Wasserman joined the result but would also find that violation; Member Cabaniss dissented from the past-practice finding. The linked administrative law judge decision is included below.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(5), 7118.
• Outcome: Unilateral-change violation found; requests must be considered, qualifying annual leave restored, and notice posted. Section 7116(a)(6) left undecided.
• Key point: An agency cannot suspend its established practice of considering flexiplace requests while bargaining over flexiplace remains incomplete.

Full text (FLRA public release)

[ v55 p454 ]

55 FLRA No. 74

U.S. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, BOARD OF IMMIGRATION APPEALS

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3525

(Charging Party/Union)

WA-CA-80032

_____

DECISION AND ORDER

May 7, 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 Respondent's exceptions to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the 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 refusing to consider requests for flexiplace work arrangements from bargaining unit employees while the issue of flexiplace was pending before the Federal Service Impasses Panel (the Panel).

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. In particular, we find that the Respondent violated section 7116(a)(5) of the Statute by unilaterally changing a past practice of considering requests for flexiplace work arrangements.

II. Background and Judge's Decision

A. Statement of Facts

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

During the period February 1995 through June 1997, Respondent considered nine requests by attorneys in the bargaining unit for flexiplace work arrangements. The Respondent acted on all of these requests, granting eight of them. The bargaining agreement in effect at that time did not contain a flexiplace provision.

On September 10, 1997, the Union requested the assistance of the Panel on various issues, including a flexiplace proposal. Within a 1-month period ending in mid-September 1997, the Respondent received three requests from attorneys for flexiplace arrangements. By letters dated September 22 or 23, 1997, the Respondent informed all three attorneys who had made such requests that the Respondent was unable to act on them. The letters stated that because the issue of flexiplace was currently being negotiated and was before the Panel, the Respondent would not act upon any requests until the issue was resolved. With the Panel's assistance, the parties reached agreement in January 1998 on several provisions, including a flexiplace article.

The General Counsel filed a complaint alleging that the Respondent violated sections 7116(a)(1), (5) and (6) of the Statute by changing its procedures for considering flexiplace requests while the matter of flexiplace was pending before the Panel.

B. Judge's Decision

The Judge held that flexiplace is a condition of employment within the meaning of section 7103(a)(14) of the Statute. The Judge also held that the Respondent had a past practice of considering on the merits all flexiplace requests. In so holding, the Judge relied on his factual findings that: (1) 9 percent of the 100 attorneys in the bargaining unit had submitted flexiplace requests prior to the Union seeking the assistance of the Panel; and (2) management officials considered on the merits every one of the requests. Based on these findings, the Judge concluded that employees and management had "a reasonable expectation that requests for flexiplace . . . would be considered on their merits." Judge's Decision at 9.

The Judge concluded that the Respondent changed its past practice when it declined to consider the three flexiplace requests made while the matter was pending before the Panel, in violation of section 7116(a)(1), (5) [ v55 p455 ] and (6) of the Statute. The Judge stated that "failure to maintain the status quo, to the extent consistent with the necessary functioning of [the] agency, while a negotiation dispute is pending before the Panel violates section 7116(a)(1), (5) and (6) of the Statute." Id. at 8 (citations omitted). The Judge concluded that the Respondent's expectation at the time it ceased considering the flexiplace requests of an imminent decision from the Panel was irrelevant in resolving the complaint. In this regard, the Judge stated that "[s]pecific evidence of an intent by Respondent to evade or frustrate its bargaining obligation is not required since intent is not an element of a section 7116(a)(5) violation." Id. at 10 (citations omitted).

III. Positions of the Parties

A. Respondent's Exceptions

The Respondent argues that it did not violate section 7116(a)(5) of the Statute because it did not have a binding past practice of considering flexiplace requests on the merits. According to the Respondent, only 2 percent of bargaining unit employees submitted flexiplace requests annually from 1994 to 1997, and this number of requests is insufficient to establish a past practice. Relying on Daily News of Los Angeles v. NLRB, 73 F.3d 406, 412 n.3 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 764 (1997) (Daily News), the Respondent argues further that there was no past practice regarding flexiplace requests because the Respondent retained total discretion to decide whether to grant such requests. In addition, the Respondent maintains that no evidence was offered to show the procedures by which unit employees submitted flexiplace requests and, as a result, the Judge's conclusion that such requests were submitted in a "'systematic, [and] organized manner'" is erroneous. Exceptions at 6 (quoting Judge's Decision at 9).

The Respondent also argues that, if it had a binding past practice of considering flexiplace requests on the merits, then it did not change that practice. In this regard, the Respondent asserts that, prior to the Union seeking the Panel's assistance, management had "essentially deferred" a decision on one flexiplace request and had only "conditionally grant[ed]" another. Id. at 6, 7. According to the Respondent, its decision not to consider the flexiplace requests submitted while the matter was pending before the Panel was consistent with its prior practice. The Respondent asserts, more generally, that its discretion to decide what factors to consider in evaluating a flexiplace request "necessarily includes . . . the discretion to defer action." Id. at 6.

Finally, the Respondent contends that it did not violate section 7116(a)(6) of the Statute because a violation of that provision requires a determination that management failed to allow the Panel to take appropriate action with respect to the unresolved bargaining issues. According to the Respondent, it did not violate section 7116(a)(6) because it participated in every step of the Panel proceedings.

B. General Counsel's Opposition

The General Counsel argues that the Judge correctly found that the Respondent had a binding past practice of considering flexiplace requests. The General Counsel argues that the Respondent erroneously asserts that only 2 percent of the employees submitted flexiplace requests. According to the General Counsel, because only attorneys submitted flexiplace requests, only attorneys should be considered relevant in determining how many employees submitted the requests. The General Counsel asserts that, using attorneys as the relevant group, 9 percent of the group submitted the requests. The General Counsel also argues that the lack of established criteria for acting on flexiplace requests does not affect the finding of a past practice. According to the General Counsel, the issue before the Judge was whether the Respondent had a past practice of considering all requests for flexiplace on their merits, and whether the Respondent changed that practice once the dispute was before the Panel.

The General Counsel also argues that the Respondent failed to maintain the status quo. In this regard, the General Counsel asserts that the two flexiplace requests that the Respondent relies on to show that it was continuing its past practice of exercising discretion were decisions on the merits.

Finally, the General Counsel relies on Authority case law to argue that Respondent violated section 7116(a)(6) of the Statute when it failed to maintain the status quo by declining to consider flexiplace requests pending the Panel's decision on the matter.

IV. Analysis and Conclusions

A. The Respondent changed a past practice before completing bargaining, in violation of section 7116(a)(5) of the Statute

Section 7116(a)(5) requires an agency to fulfill its obligation to bargain in good faith before changing conditions of employment, which may be established by past practice. See United States Immigration and Naturalization Service, Washington, D.C. and National Border Patrol Council, American Federation of [ v55 p456 ] Government Employees, AFL-CIO, 55 FLRA 69, 75 (1999) (INS) (Member Wasserman dissenting on other matters). An agency violates its obligation to bargain in good faith when it changes its past practice prior to the completion of bargaining. [n2] See id. at 76 and cases cited therein. Accordingly, if the Respondent in this case implemented a change in conditions of employment prior to the completion of bargaining, then the Respondent violated section 7116(a)(5). [n3]

1. Respondent had a past practice of considering flexiplace requests on their merits

In order for the Authority to find the existence of a past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. See USDA Forest Service, Pacific Northwest Region, Portland, Oregon and National Federation of Federal Employees, Forest Service Council, Region 6, 48 FLRA 857, 860 (1993).

In this case, the record shows that both management and employees followed the practice of submitting and considering flexiplace requests, and that the practice was consistently exercised. Prior to the Union requesting the Panel's assistance, nine attorneys submitted such requests, and management considered each of these requests on the merits, granting eight of the nine. This process continued for over 2 years, a significant period of time. See U.S. Department of Labor, Washington, D.C. and American Federation of Government Employees, National Council of Field Labor Locals, Local 1748, 38 FLRA 899, 909 (1990) (16 months considered a significant period of time). This evidence supports the Judge's conclusion that a past practice existed of considering flexiplace requests on their merits.

The Respondent argues that only 2 percent of bargaining unit employees submitted requests. According to the Respondent, this number is insufficient to establish a past practice, consistent with Letterkenny Army Depot and National Federation of Federal Employees, Local 1429, 34 FLRA 606 (1990) (Letterkenny), where the Authority concluded that union representation in 10 of 492 non-selection meetings did not constitute a past practice of union attendance at those meetings. This argument is unconvincing because, in this case, the Judge determined that the Respondent had considered on the merits every one of the requests made during the relevant time period. In contrast, in Letterkenny, representation was not provided at most of the meetings. As 100 percent of the requests were considered by the Respondent on the merits, resolving the parties' dispute as to the exact percentage of unit employees who submitted the requests is unnecessary.

The Respondent's other arguments concerning the existence of a past practice also are unconvincing. First, the Respondent's reliance on Daily News is misplaced. In Daily News, the court held that an employer's unilateral termination of a policy providing for annual merit increases in pay constituted an unlawful refusal to bargain under section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) (1988). The court concluded that the employer's policy for setting the amount of the raises was not completely discretionary because the employer was constrained by the established procedures for evaluating employees and by the fixed criteria for making each individual merit decision.

According to the Respondent, because it exercised complete discretion to decide whether to grant flexiplace requests, the Respondent's decision not to consider flexiplace requests did not violate the Statute. [n4] In so arguing, the Respondent mischaracterizes the court as stating in Daily News that, "if the employer had retained total discretion to consider whatever factors it chose in deciding whether to grant the increases, a deferment of the policy would not have resulted in a violation of the NLRA." Exceptions at 5 (citing Daily News, 73 F.3d 406, 412 n.3) (emphasis in Exceptions). The court actually stated that, if the employer "retained total discretion to grant the increases based on any factors it chose, [it] doubt[ed] that discontinuing the policy would have [ v55 p457 ] resulted in a violation . . . ." Daily News, 73 F.3d at 412 n.3. More importantly, the Respondent in this case is not charged with failing to maintain the status quo with respect to the factors it used to consider flexiplace requests. Instead, it is charged with failing to maintain the status quo with respect to considering the requests at all. [n5] Thus, whether the Respondent retained discretion with regard to the factors used to consider the requests is not dispositive.

With regard to the Respondent's exception to the Judge's finding that flexiplace requests were submitted in a "systematic and organized" manner, Judge's Decision at 9, we do not discern how the existence of procedures used by unit employees in submitting requests is relevant to determining the Respondent's past practice in acting on such requests. In any event, contrary to the Respondent's exception, the record in this case contains evidence of such procedures. Specifically, Joint Exhibit 1 contains the flexiplace applications of the seven employees who were using flexiplace arrangements at the time of the hearing. The applications had several similarities: all used common forms; all contained similar information regarding the requested schedule, the reasons a flexiplace arrangement was needed, whether the applicants would have children at home during the workday, and information about the applicants' home offices; all were approved by high-level management officials.

Based on the foregoing, we find that the Respondent had a past practice of considering flexiplace requests on their merits.

2. The Respondent changed its past practice prior to completing bargaining over flexiplace work arrangements

The Judge determined that maintenance of the status quo would have required the Respondent to continue considering flexiplace requests on the merits, and that the Respondent's failure to do so changed the status quo. A preponderance of the evidence supports this determination. Prior to the Respondent's determination not to consider flexiplace requests, the Respondent had considered every request on the merits. When the Respondent failed to consider the three disputed requests on the merits, the Respondent changed its past practice.

The Respondent claims that it did not change a past practice after the Union sought the Panel's assistance, because the Respondent previously had "essentially deferred" action on one request and only "conditionally grant[ed]" another. Exceptions at 6-7. The record does not support the Respondent's claim, however. In particular, the Judge's undisputed findings demonstrates that the Respondent considered and acted on both of these requests on the merits. As for the first, the Respondent initially denied, but subsequently granted, the request. See Judge's Decision at 4; Transcript at 73-74. As for the second, the Respondent granted the request for a 6-month period. See Judge's Decision at 5. The Respondent, therefore, did not defer action on those two requests.

More generally, the Respondent argues that it maintained the status quo by exercising its discretion to defer action on the three requests at issue. However, as discussed above, the Judge found that the past practice was for the Respondent to consider the flexiplace requests on their merits, regardless of the outcome of those requests. The Respondent declined to even consider the three requests made while the matter was pending before the Panel. Accordingly, the Respondent changed its past practice.

Based on the foregoing, we find, in agreement with the Judge, that the Respondent changed its past practice of considering flexiplace requests on the merits prior to the completion of bargaining, in violation of section 7116(a)(5) of the Statute.

B. The remedy ordered by the Judge provides full relief for the Respondent's unfair labor practice

The Judge ordered the Respondent to: (1) consider the flexiplace requests that were not considered while the matter was pending before the Panel; and (2) make whole adversely affected employees for any annual leave used due to the Respondent's failure to consider their requests for flexiplace while the issue was at the Panel. There are no exceptions to this order, which would fully remedy the Respondent's failure to consider the flexiplace requests on their merits in violation of section 7116(a)(5).

The Judge concluded that the Respondent violated section 7116(a)(6) of the Statute when it declined to consider the flexiplace requests made while the matter [ v55 p458 ] was pending before the Panel. Even if the Authority were to find that the Respondent violated section 7116(a)(6), there would be no further relief in this case. Accordingly, we do not determine whether the Respondent violated section 7116(a)(6). [n6] See Department of the Treasury and Internal Revenue Service and National Treasury Employees Union, 22 FLRA 821, 829-30 n.8 (1986) and cases cited therein.

V. Order

Pursuant to section 2423.41(c) of the Federal Labor Relations Authority's Regulations and section 7118 of the Statute, it is hereby ordered that the U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals (Board) shall:

1. Cease and desist from:

(a) Unilaterally discontinuing the practice of considering all requests for flexiplace work arrangements.

(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request of the American Federation of Government Employees, Local 3525, the exclusive representative of the Board employees, consider the requests of all employees whose flexiplace requests were not considered. In considering such requests, the Board shall apply the same criteria and standards it applied to prior requests.

(b) Consistent with the regulation, make adversely affected employees whole for any annual leave used due to the Board's failure to consider their requests for flexiplace work arrangements.

(c) Post at its facilities wherever bargaining unit employees represented by the American Federation of Government Employees, Local 3525, are located, copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Chairman of the Board of Immigration Appeals and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals (Board), violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

We hereby notify bargaining unit employees that:

WE WILL NOT unilaterally discontinue the practice of considering all requests for flexiplace work arrangements.

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, at the request of the American Federation of Government Employees, Local 3525, the exclusive representative of Board employees, consider the requests of all employees whose flexiplace requests were not considered pending the outcome of bargaining. In considering such requests, we will apply the same criteria and standards applied to prior requests which we considered.

WE WILL, consistent with law and regulation, make adversely affected employees whole for any annual leave used due to the Board's failure to consider their requests for flexiplace work arrangements.

_______

(Activity)

Date: __ By: ___

(Signature) (Title)

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

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Regional Office, whose address is: 800 K Street, NW., Suite 910, Tech World Plaza, Washington, D.C. 20001, and whose telephone number is: (202) 482-6700. [ v55 p459 ]

Concurring opinion of Member Wasserman:

I agree that the Agency violated section 7116(a)(5). However, for the reasons stated in my dissent in INS, I would also find that the Agency violated section 7116(a)(6). Because, in my view, an agency may change the status quo when a matter is pending at the Federal Service Impasses Panel only if necessary for the functioning of the agency, I would start with the analysis of subpart (6). In this case, since a section 7116(a)(6) violation occurred, I would find it unnecessary to proceed to evaluate the (a)(5) claim.

By joining in the majority opinion, I do not in any way abandon my opinion as expressed in INS. I note that the holding of that case has not been appealed, and is the applicable Authority precedent. Accordingly, for purposes of adjudicating this case, I join in finding the violation of section 7116(a)(5).

Dissenting Opinion of Member Cabaniss:

Since I cannot agree that a past practice can be created where, as here, the agency has total discretion to act however it wishes, I respectfully dissent from the finding that the Respondent violated section 7116(a)(5) of the Statute.

Unlike the majority, I believe the decision in Daily News quite clearly, though not in so many words, expresses the court's view that a past practice cannot arise where there are no criteria for conferring a benefit. The opinion repeatedly refers to the fact that the employer had an established criterion for granting or denying merit pay increases, sometimes adding emphasis to do so. See Daily News, 73 F.3d at 411. In addition, the opinion distinguishes the situation in Daily News from that in another NLRB case, where no violation was found, on the basis that "there was no finding . . . that the employer had established fixed criteria" for conferring the benefit in question. Id. at 413 n.7.

The Authority has also found it appropriate to defer to agency decisions regarding matters that are committed to an agency's unfettered discretion. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 625, 648 (1997) (exercise of agency discretion outside the duty to bargain when "sole and exclusive" to the agency); U.S. Department of the Army, Headquarters, U.S. Army Aviation Center, Fort Rucker, Alabama and Wiregrass Metal Trades Council, 52 FLRA 89, 93 (1996) (arbitration award enforcing alleged past practice awards found contrary to Government-wide regulation giving Agency discretion concerning cash awards). While these cases address discretion provided by statute or regulation, I see no reason why the result should be different when the discretion arises from an employer's own past actions, as was the case in Daily News. Until the flexiplace negotiations between the parties in this case were completed, the Agency retained complete discretion to grant or deny flexiplace requests as it saw fit.

In the instant case, the Judge found as a fact that "there were no set criteria for adjudging requests for flexiplace during this period." Decision at 9. Moreover, the record shows that no such criteria had developed as a matter of practice. Indeed, the Union's reason for requesting negotiations concerning flexiplace was exactly that "there was no known Board policy' which set criteria or standards when considering requests for flexiplace, and the practice wasinconsistent' in that employees working under a flexiplace arrangement were given a variety of limitations in terms of hours of work, days in the office, or required medical documentation to support their requests." Id. at 2 n.1.

Further, looking at the alleged past practice as merely procedural, the record does not even support a finding that the Agency had a practice of responding to flexiplace requests in a timely manner. As the Judge found, the request of employee Agoronick was not acted on for five months, while employee McIlmail's request took at least four months to receive approval. Id. at 4. The Agency's decision, to not rule on the additional flexiplace requests until after the flexiplace negotiations were completed, did not lead to a significantly longer delay.

For the above reasons, I would dismiss the portion of the complaint alleging that the Respondent violated section 7116(a)(5) of the Statute, and remand the case to the Judge for consideration of the alleged section 7116(a)(6) violation in light of our decision in United States Immigration and Naturalization Service, Washington, D.C. and National Border Patrol Council, American Federation of Government Employees, AFL-CIO, 55 FLRA 69 (1999) .

File 1: Authority's Decision in 55 FLRA No.
74 and Opinions of Members Wasserman and Cabaniss

File 2: ALJ's Decision

Footnote # 1 for
55 FLRA No. 74

• Authority's Opinion

Member Wasserman joins in the majority opinion solely for the purpose of resolving the complaint in this case and, if it were not necessary to do so, would resolve the complaint in the manner explained in his separate opinion, which is set forth at the end of this decision. The dissenting opinion of Member Cabaniss also is set forth at the end of this decision.

Footnote # 2 for
55 FLRA No. 74

• Authority's Opinion

There are limited circumstances where an agency does not violate its duty to bargain in good faith by changing the status quo prior to the completion of bargaining. See INS, 55 FLRA at 73 n.8. There has been no assertion that any of these exceptions apply here.

Footnote # 3 for
55 FLRA No. 74

• Authority's Opinion

The parties do not except to the Judge's analysis of the section 7116(a)(5) violation as independent, not derivative, of the alleged 7116(a)(6) violation. In addition, the Respondent's exceptions address the alleged section 7116(a)(5) allegation as independent of the 7116(a)(6) violation, and the General Counsel does not oppose the exceptions on this point.

Footnote # 4 for
55 FLRA No. 74

• Authority's Opinion

We do not understand the dissent's reliance on the doctrine of sole and exclusive discretion. See Dissent at 1. That doctrine is relevant to determining whether a matter is within an agency's duty to bargain. See generally International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 691-92 (1995), aff'd mem. sub. nom. Bureau of Engraving and Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996). In this case, there has been no assertion that any aspects of the flexiplace issue were outside the duty to bargain based on sole and exclusive discretion or any other ground. Indeed, as noted above, the parties bargained to impasse on the subject and, subsequent to the events at issue in this case, agreed upon and implemented a contract provision on it.

Footnote # 5 for
55 FLRA No. 74

• Authority's Opinion

Although the dissent looks to determine whether the Agency timely responded to flexiplace requests, there is no allegation that the Respondent violated the Statute by failing to timely act on the three disputed requests. The allegation is -- and a preponderance of the evidence establishes -- that the Respondent violated the Statute by failing to act at all. See Daily News, 73 F.3d at 414 n.8 (court rejected employer's assertion that it did not change a condition of employment by refusing to provide employees merit increases until the matter was negotiated with the union, holding that the employer had "suspended the entire policy" of considering employees for raises and that such suspension "constitutes a change in a term or condition of employment regardless of how long the suspension lasts.").

Footnote # 6 for
55 FLRA No. 74

• Authority's Opinion

If it were necessary to resolve whether the Respondent violated section 7116(a)(6), then Chair Segal would apply the framework set forth in INS. As discussed in his separate opinion, Member Wasserman would apply the approach set forth in the dissent in INS.

Attached ALJ decision (FLRA public release)

[ v55 p460 ]

Office of Administrative Law Judges

U.S. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW, BOARD OF IMMIGRATION APPEALS

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 3525, AFL-CIO

Charging Party

Case No. WA-CA-80032

Jeanne Marie Corrado, Esquire

Justin Cutlip, Esquire

Counsel for the General Counsel, FLRA

Daniel Echavarren, Esquire

Counsel for the Respondent

Before: GARVIN LEE OLIVER

Administrative Law Judge

DECISION

Statement of the Case

The amended unfair labor practice complaint alleges that the Respondent (BIA or Board) violated section 7116(a)(1), (5) and (6) of the Federal Service Labor-Management Relations Statute (the Statute), by not considering requests for flexiplace work arrangements from three bargaining unit employees while the issue of flexiplace was pending before the Federal Service Impasses Panel (FSIP or Panel).

The Respondent's answer admitted the jurisdictional allegations, but denied any violation of the Statute. For the reasons set out below, I find that the Respondent violated the Statute, as alleged.

A hearing was held in Washington, DC, on June 3, 1998. The Respondent and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

The Parties

The American Federation of Government Employees, Local 3525, AFL-CIO is the certified exclusive representative of a unit of employees appropriate for collective bargaining at the Respondent. The bargaining unit is made up of approximately 165 employees, 100 of whom are attorneys. The collective bargaining agreement in effect at the time the charge was filed (October 15, 1997) had no provision regarding flexiplace work arrangements.

Bargaining on New Agreement and Assistance Requested of FSIP

On or about May 21, 1996, the Union submitted a request to negotiate a new collective bargaining agreement. In June 1996, at the Respondent's request, the parties began an informal phase of negotiations. The Union proposed a flexiplace article. The Respondent presented a counterproposal on August 22, 1996. Formal negotiations began in September 1996. The parties were not able to come to an agreement, so they sought the services of a Federal Mediation and Conciliation Service mediator and, later, in March 1997, the Union requested assistance from the FSIP. The Union ultimately withdrew that request, and the parties continued to bargain. On September 10, 1997, the Union again requested the assistance of the FSIP on several issues, including the issue of flexiplace. Both Union requests for FSIP assistance included the statement, "Although several Board employees do work away from the office for all or part of the week, no known Board policy on flexiplace exists. Current practice has been inconsistent." [n1]

Action on Flexiplace Requests Prior to FSIP Involvement

A 1992 publication of the Department of Justice, "Work Options: Balancing Workstyles and Lifestyles - A Manager's Guide to Human Resource Management" states, in part, that flexiplace, also known as flexible [ v55 p461 ] workplace, refers to paid employment performed away from the office for a portion of the workweek. The publication states that flexiplace is a supervisory work option and not a right. It sets forth guidelines for selecting employees and positions for flexiplace and three separate forms to be completed by employees and supervisors participating in the program. (G.C. Exh. No. 9).

In 1995-96, BIA's parent organization, the Executive Office of Immigration Review, put together a committee to develop criteria for flexiplace. The committee secured the Department publication and forms, but its overall effort was unsuccessful. The next step to develop a formal program came when the issue was addressed by the Union and management negotiating teams.

Requests for flexiplace were received and considered on a case-by-case basis to accommodate employees, just as special arrangements were occasionally permitted with respect to employees changing from full-time to part-time status, or employees being granted administrative leave or leave without pay.

I credit the testimony of Margaret O'Herron, BIA attorney and chief negotiator for the Union, Thomas Ragland, BIA attorney, and Maureen Dunn, BIA attorney, to the effect that it was general knowledge in the office that some employees were working flexiplace. According to Mr. Ragland, employees also regularly received notices from the Attorney General encouraging divisions to help employees have an improved work life and home life by using flexible workplace opportunities, where possible, including flexiplace.

Various factors were considered in reaching a decision on an employee's flexiplace request. These included demonstrated medical concerns, child care needs, commuting problems, the capability to do word processing in an area of the home without interruption or other demands, work performance, and not being a new employee or in training. Only attorneys have been approved for flexiplace to date.

BIA has not used the guidelines set forth in the Department of Justice publication to make decisions on requests for flexiplace, but it has used the forms developed by the Department to implement this worklife option. All employees granted flexiplace have executed such forms.

Decisions on flexiplace requests at the BIA are made by the chief attorney examiner, or someone acting in that capacity, in consultation with the chairman and vice-chairman of the Board. Since September 1995 the chief attorney examiner has been Neil P. Miller. His predecessors were Wayne Stogner and David Holmes.

During the period February 1995 through June 1997, the Respondent granted the requests of eight attorneys for flexiplace work arrangements and denied one such request, as follows:

1. On September 23, 1994, Lois Agronick, citing child care and personal reasons, submitted a request for a flexiplace work arrangement to Mary Dunne, acting chairman, and David B. Holmes, chief attorney examiner. On or about February 28, 1995, Ms. Agronick's request for flexiplace was granted.

2. In August 1995, the exact date being unknown, Sharon Riotto, citing commuting and child care reasons, submitted a request for a flexiplace work arrangement to Paul Schmidt, BIA chairman. Ms. Riotto's request for flexiplace was subsequently granted.

3. On September 19, 1995, Elena Albamonte, citing child care reasons, submitted a request for a flexiplace work arrangement to Wayne Stogner, acting chief attorney examiner. Ms. Albamonte's completed forms for a flexiplace work arrangement were subsequently signed and approved by Wayne Stogner on October 30, 1995.

4. On December 8, 1995, Timothy McIlmail, citing commuting time, quality of home and work-life, and child care reasons, submitted a request for a flexiplace work arrangement to Neil Miller, chief attorney examiner. Throughout the months of December 1995 through April 1996, Mr. McIlmail submitted revised and updated proposals dealing with his need to obtain a computer. Subsequently, Wayne Stogner approved Mr. McIlmail's request for flexiplace.

5. On December 12, 1995, Sheila Helf submitted a request for a flexiplace work arrangement to Neil Miller. Ms. Helf's stated reasons for requesting flexiplace concerned improved quality of home and worklife, reduction of commuting time, and child care related matters. On February 5, 1996, Neil Miller approved Ms. Helf's request for flexiplace.

During the contract negotiations mentioned above, the Respondent continued to grant four additional requests for flexiplace, as follows:

6. On August 5, 1996, Gary Saltsman, citing health reasons, submitted a request for a flexiplace work arrangement to Neil Miller which was granted on September 12, 1996. [ v55 p462 ]

7. On September 11, 1996, Daisy Rosen, citing health reasons associated with her pregnancy, submitted a request for a flexiplace work arrangement to Neil Miller. On September 26, 1996, Wayne Stogner granted Ms. Rosen's request for flexiplace.

8. On April 21, 1997, Erin Scally, citing family reasons associated with her two sons, submitted a request for a flexiplace work arrangement to Paul Schmidt, chairman. On June 23, 1997, George Martin, the acting chief attorney examiner, and Wendy Ikezawa, a team leader, granted Ms. Scally's request for a flexiplace work arrangement. Ms. Scally's flexiplace work arrangement was to run for 6 months or "until the union contract negotiations are concluded and you continue to meet the mutually negotiated criteria." (Jt. Exh. 1 at 90).

9. One request for flexiplace was denied during the period. On September 25, 1996, Jennifer Tyler requested a one-week flexiplace work arrangement in order to recover from ankle surgery. Neil Miller denied the request for flexiplace. He determined that the use of sick leave was more appropriate for this short-term situation.

Board Refuses to Act on Further Requests Until Flexiplace Issue at FSIP is Resolved

The three flexiplace requests that are the basis of this complaint, constituting one fourth of all the requests for flexiplace made at the BIA, were all received within a one-month period ending in mid-September 1997. This was about the same time that the BIA and the Union had reached an impasse in the renegotiation of their agreement (August 12, 1997), including the issue of flexiplace, and the Union had requested the assistance of the FSIP (September 10, 1997). The three requests were as follows:

1. On August 4, 1997, Thomas Ragland submitted a request for a flexiplace work arrangement to Neil Miller. Mr. Ragland's stated reasons for requesting flexiplace were commuting, quality of life, and child care issues.

2. On August 20, 1997, Maureen Dunn, citing child care reasons, submitted a request for a flexiplace work arrangement to her team leaders.

3. On September 16, 1997, Leland Beck, citing health related transportation issues, submitted a request for a flexiplace work arrangement.

Steve Muir, labor and employee relations officer for the Department of Justice, Executive Office of Immigration Review, provided advice to the managers concerning the flexiplace requests. Management "did not want to be ··#backdoored··backdoored··backdoored·· into a program that . . . would take shape, and have a substance of its own, that would be dictated primarily by previous requests." Neil Miller testified that he felt that it was "appropriate to defer action on these three requests, rather than decide yes or no on them." The decision was made to defer action on the requests pending resolution of what was expected by Board management to be an imminent decision from the FSIP. (Tr. 79, 95).

On September 22 or 23 1997, Ragland, Beck, and Dunn received memoranda from Neil Miller responding to their requests for flexiplace. All three memoranda were identical and stated:

In response to your request for flexiplace, I regret to inform you that we are unable to approve your request at this time. The issue of flexiplace for employees at the Board of Immigration Appeals (BIA) is currently an issue at the negotiating table between management and the union. This issue is at the Impasse Panel and until such time as the issue is resolved, the board will not act upon any further requests.

Upon the resolution of this issue, if a flexiplace program exists and you meet the eligibility requirements, please feel free to renew your request at that time. I regret that a more favorable decision could not be forthcoming at this time. (G.C. Exh. No. 3, 5 & 8).

The requests of Ragland, Beck, and Dunn were the first requests for flexiplace that were not acted upon. The Board had acted on every prior employee request for flexiplace.

Upon receiving the Respondent's September 22, 1997, memo, Thomas Ragland requested and was granted two separate meetings with Board managers. The first meeting was with Neil Miller, and the second was with Paul Schmidt, BIA chairman, and Mary McGuire Dunn, vice-chair. At both meetings, Ragland asked why the BIA would not consider his request when it had in fact recently granted other employees' requests for flexiplace which were submitted during contract negotiations. In response, both Miller and Schmidt explained that the other requests were granted while the parties were at the table in contract negotiations, but that once the parties went to impasse over the flexiplace issue, the Board could not consider any further requests. In addition, they both indicated that the issue of flexiplace was being litigated by the parties.

FSIP Assistance - New Agreement

The FSIP took jurisdiction of the September 1997 request for assistance and, on January 5 and 6, 1998, held a two-day informal conference between a senior Panel representative and the parties. With the assistance of the Panel representative, the parties reached agreement on several articles of a successor agreement, including a flexiplace article. Following additional proceedings, the new agreement, with the article on flexiplace, received agency approval on May 18, 1998. [ v55 p463 ]

Discussion and Conclusion

Positions of the Parties

The General Counsel contends that, by refusing to consider the requests of Ragland, Dunn, and Beck for flexiplace while the issue of flexiplace was before the FSIP, the Respondent failed to maintain the status quo, i.e., its past practice of considering all flexiplace requests, and thereby violated section 7116(a)(1), (5) and (6) of the Statute. The General Counsel claims that the record clearly establishes that the Respondent's practice of considering all requests for flexiplace was consistently applied over a two-and-a-half-year period and that BIA managers at different levels were fully aware of this practice.

The Respondent defends on the basis that the General Counsel failed to meet its burden of showing that a binding past practice regarding flexiplace existed at the Board. The Respondent points out that only eight requests for flexiplace were ever granted in a unit of approximately 165 employees, the record does not disclose exactly what factors were considered in evaluating the few requests for flexiplace that were granted, and the alleged past practice did not preclude consideration of the pendency of a negotiated flexiplace program as a factor to be considered.

The Respondent contends that it fully participated in the impasse procedures and specifically sought to avoid denying the Panel the opportunity to help the parties develop a negotiated flexiplace program. Respondent claims it declined to unilaterally grant or deny any more flexiplace requests before completing the bargaining process with the Union "so as not to create a flexiplace program by fiat," and acting on the three requests would have "moved the Board significantly closer to unilaterally defining the parameters of a flexiplace program."

According to the Respondent, even if its actions amounted to a change in past practice, such a change would not violate the Statute. Respondent points out that it did not unilaterally implement its own sought-after change in a condition of employment, as in an Authority line of cases, but, at most, suspended a practice that both parties found objectionable, pending implementation of a procedure following the negotiation process. Respondent claims that such deference to the negotiation process is exactly what the law encourages.

Issues Presented

The Authority has held that failure to maintain the status quo, to the extent consistent with the necessary functioning of an agency, while a negotiation dispute is pending before the Panel violates section 7116(a)(1), (5) and (6) of the Statute. See, for example, Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 949-51 (1990); Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985).

The Respondent failed to consider the requests of Ragland, Dunn, and Beck for flexiplace while the issue of flexiplace was before the Panel. The issues for determination are: (l) whether flexiplace is a conditions of employment; (2) if so, whether there was an established past practice concerning the consideration of such requests; and (3) if so, whether the Respondent's action violated the Statute by changing its procedures for the consideration of such requests and, thereby, failing to maintain the status quo, to the extent consistent with the necessary functioning of an agency, while the negotiation dispute was pending before the Panel. [n2]

Condition of Employment

In determining whether an Agency has refused to comply with an established practice, it must first be decided whether the matter alleged to be a practice involves a condition of employment of bargaining unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles); U.S. Department of Labor, Washington D.C. and U.S. Department of Labor, Employment Standards Administration, Boston, Massachusetts, 37 FLRA 25 (1990).

Applying the test formulated by the Authority in Antilles for determining whether a matter is a condition of employment, I conclude that flexiplace is a condition of employment as defined in section 7103(a)(14) of the Statute.

Past Practice

Once it is determined that the matter alleged to be a past practice involves a condition of employment, it must be demonstrated that the practice has been consistently exercised over a significant period of time and followed by both parties or followed by one party and not challenged by the other. U.S. Department of Labor, [ v55 p464 ] Washington, D.C., 38 FLRA 899 (1990). "Essential factors in this regard are that the practice must be known to management, responsible management must knowingly acquiesce, and such practice must continue for some significant period." Norfolk Naval Shipyard, 25 FLRA 277, 286 (1987).

I conclude, under these criteria, that the Respondent had a past practice of considering all requests for flexiplace on their merits.

The existence of several flexiplace work arrangements at BIA, and the existence of flexiplace as a possible workplace option in the Department of Justice, was well known to BIA employees. During a two-and-a-half-year period, nine attorneys, totaling approximately 9% of the approximately 100 attorneys in the bargaining unit, submitted requests for a flexiplace work arrangement to the Respondent. These requests were accepted and considered by responsible management officials ··__accepted and considered requests for f_··at the highest levels of the Board. All the requests generally set forth some common problems, such as··__The existence of several flexiplace wo_·· child care needs, health issues, or commuting difficulties, and the resulting effects of these considerations on work and home life. That there were no set criteria for adjudging requests for flexiplace during this period does not prove that the procedure for considering such requests was inconsistent or equivocal. Of the nine employees who submitted requests for flexiplace, all were considered on their merits on a case-by-case basis and eight were granted flexiplace. Each of the employees who requested and were granted flexiplace filled out the standard Department of Justice flexiplace forms.

The background, number, and frequency of the BIA requests and approvals, ranging over a period of more than two years, was sufficient to give employees and management a reasonable expectation that requests for flexiplace submitted in a systematic and organized manner to BIA through the chief attorney examiner, or alternate, would be considered on their merits. A reasonable person would view these factors as reflecting a consistent pattern that suggests recurrence based on design as distinguished from recurrence based on luck or one-time affairs. Cf. Social Security Administration, Mid-America Service Center, Kansas City, Missouri, 9 FLRA 229, 240 (1982).

The Respondent changed this procedure for considering requests for flexiplace by deciding, "This issue is at the Impasses Panel and until such time as the issue is resolved, the Board will not act upon any further requests." The Respondent contends that the scope of the practice encompassed consideration of many relevant factors, and notes that the pendency of a negotiated flexiplace program was a factor considered by the Board in one instance (Erin Scally) when the Board decided to grant flexiplace only for a limited period pending future eligibility under a negotiated agreement. Therefore, the Board contends that it did not change past practice by considering that factor in the instant cases.

The Board did change the past practice. In handling Scally's request, the pendency of a negotiated flexiplace program was merely a factor considered in the decision to grant the request for a limited period. In the instant case, the pendency of the issue at the FSIP was used as the reason to suspend all decisions granting or denying the requests until the issue was resolved.

The September 1997 change constituted a serious change in the procedures of handling all requests. FSIP assistance did not resolve the issue until January 1998, and the three individuals whose requests were not considered on the merits in September 1997 were not eligible to reapply until some eight months later, after the new agreement went into effect in May 1998. The Respondent's expectation at the time of an imminent decision from the FSIP, while understandable, is irrelevant. Specific evidence of an intent by Respondent to evade or frustrate its bargaining obligation is not required since intent is not an element of a section 7116(a)(5) violation. Marine Corps Logistics Base, Barstow, California, 33 FLRA 196, 202 (1988); Internal Revenue Service (District, Region, National Units), 16 FLRA 904, 922 (1984).

The continued processing and consideration of flexitime requests on a case-by-case basis would not have created a program by fiat, as contended by the Respondent, but would only have maintained the status quo, as the Respondent was obligated to do. By changing the procedures for considering requests for flexiplace work assignments while the negotiation dispute was pending before the Panel, the Respondent violated section 7116(a)(1), (5) and (6) of the Statute, as alleged.

Based on the above findings and conclusions, it is recommended that the Authority issue the following Order: [ v55 p465 ]

ORDER

Pursuant to section 2423.41(c) of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals (Board), shall:

1. Cease and desist from:

(a) Unilaterally discontinuing the practice of considering all requests for flexiplace work arrangements while negotiations over the issue of flexiplace are pending before the Federal Service Impasses Panel (Panel).

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

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request of the American Federation of Government Employees, Local 3525, AFL-CIO, the exclusive representative of Board employees, consider the requests of all employees whose flexiplace requests were not considered while the issue of flexiplace was before the Panel, including the requests of Thomas Ragland, Maureen Dunn and Leland Beck. In considering such requests, the Board shall apply the same criteria and standards it applied to requests made prior to the time the issue of flexiplace was submitted to the Panel.

(b) Consistent with law and regulation, make adversely affected employees whole for any annual leave used due to the Board's failure to consider their requests for flexiplace work arrangements while the issue was at the Panel.

(c) Post at its facilities wherever bargaining unit employees represented by the American Federation of Government Employees, Local 3525, AFL-CIO, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Chairman of the Board of Immigration Appeals and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Washington Regional Office, Federal Labor Relations Authority in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, July 27, 1998.

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GARVIN LEE OLIVER

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals (Board), violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

We hereby notify bargaining unit employees that:

WE WILL NOT unilaterally discontinue the practice of considering all requests for flexiplace work arrangements while negotiations over the issue of flexiplace are pending before the Federal Service Impasses Panel.

WE WILL NOT fail or refuse to cooperate with 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, at the request of the American Federation of Government Employees, Local 3525, AFL-CIO, the exclusive representative of Board employees, consider the requests of all employees whose flexiplace requests were not considered while the issue of flexiplace was before the Panel, including the requests of Thomas Ragland, Maureen Dunn and Leland Beck. In considering such requests, we will apply the same criteria and standards applied to requests made prior to the time the issue of flexiplace was submitted to the Panel.

WE WILL, consistent with law and regulation, make adversely affected employees whole for any annual leave used due to the Board's failure to consider their requests for flexiplace work arrangements while the issue was at the Panel.

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(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, Washington Regional Office, Federal Labor Relations Authority, whose address is: 1255 22nd Street, NW., Suite 400, Washington, DC 20037, and whose telephone number is: (202)653- 8500.

File 1: Authority's Decision in 55 FLRA No. 74 and Opinions of Member Wasserman and Member Cabaniss

File 2: ALJ's Decision

Footnote # 1 for
55 FLRA No. 74

• ALJ's Decision

Margaret O'Herron, chief negotiator for the Union, testified in explanation of this statement. She said that, although the Office of Personnel Management and the Department of Justice had guidelines on flexiplace, there was "no known Board policy" which set criteria or standards when considering requests for flexiplace, and the practice was "inconsistent" in that employees working under a flexiplace arrangement were given a variety of limitations in terms of hours of work, days in the office, or required medical documentation to support their requests. She testified that the Union's proposal made clear that the Union wanted a uniform, consistent, and objective policy.

Footnote # 2 for
55 FLRA No. 74

• ALJ's Decision

The Respondent does not argue as a defense that its actions were necessary for the functioning of the Board. It does argue that such a defense illustrates that management can, under some circumstances, make a change while the issue is before the Panel without violating the Statute, and that the Authority's decision in Order Denying Request for General Ruling, 31 FLRA 1294 (1988) declined to create a per se rule.