Federal Labor Relations Authority v. U.S. Dept. of Justice, 91-1353
| Decision Date | 15 June 1993 |
| Docket Number | No. 91-1353,91-1353 |
| Citation | 994 F.2d 868 |
| Parties | 143 L.R.R.M. (BNA) 2729, 301 U.S.App.D.C. 321 FEDERAL LABOR RELATIONS AUTHORITY, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Immigration and Naturalization Service, United States Border Patrol, San Diego, California, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Pamela P. Johnson, Atty. Federal Labor Relations Authority (FLRA), argued the cause for petitioner. With her on the briefs were David M. Smith, Sol., and Arthur A. Horowitz, Associate Sol., FLRA. William E. Persina, William R. Tobey, and Denise Morelli also entered appearances for petitioner.
William C. Owen, Atty. Dept. of Justice (DOJ), argued the cause for respondent. With him on the briefs were Stuart M. Gerson, Asst. Atty. Gen., and William Kanter, Atty., DOJ.
Before WILLIAMS, SENTELLE, and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
The Federal Labor Relations Authority ("FLRA" or "Authority") petitions for enforcement of its order requiring the Department of Justice, Immigration and Naturalization Service, United States Border Patrol, San Diego, California ("Patrol" or "Agency") to bargain with the Union representing its employees over impact and implementation of a relocation affecting employees of the Patrol's San Diego sector. The Authority contends that the Agency is in noncompliance by not having negotiated on the Union's proposal to use space vacated in the relocation for a Union office, when no such office existed before. The Agency replies that this proposal is not within the scope of the underlying proceeding. As we agree with the Agency, we deny the petition.
The National Border Patrol Council of the American Federation of Government Employees, AFL-CIO (the "Union"), is and was at all times relevant to this opinion the exclusive representative of all nonexcluded personnel of the United States Border Patrol. By letter of March 30, 1988, the Patrol notified the Union's Local 1613 of plans to relocate its San Diego sector Anti-Smuggling Unit ("ASU") from the sector's headquarters to three decentralized locations in San Diego County. At an April 4, 1988 meeting, management explained the relocation plans to Local representatives. Thereafter, the Union wrote to sector management expressing support for the decentralization decision, but requesting bargaining over the "impact and implementation" of the decision. After an exchange of correspondence, the Union requested information as to the projected future use of the space being vacated in the headquarters building. Management took the position that this question was outside the scope of current bargaining.
On August 30, 1988, the Union submitted a list of proposals, for the most part dealing with the impact and implementation of the relocation, but including Proposal H, which specified that:
The Agency will provide the [Union] ... with office space in the building to be vacated by the Anti-Smuggling Unit. Such office space will be at least 400 square feet in size, with locking doors, and will be accessible 24 hours a day. Additionally, the Agency will provide the Union with a separate FTS telephone line for such office. The aforementioned accommodations shall be provided at no cost to the Union.
Management responded the next month by letter. With regard to Proposal H, it stated that "this item does not have impact on the decentralization of the Sector Anti-Smuggling Unit."
In October of that year, management informed the Union that it intended to relocate staffs of other Agency departments to the vacated space, but that it had not made definite plans for reconfiguring the space. The next month, the Agency advised the Union that the ASU staff had not yet been relocated. There were no further communications between the parties regarding the relocation of the ASU until after the Sector had moved the ASU agents into the new offices in three stages, in January, February and March 1989.
After the relocation of the ASU agents, the Union submitted a revised list of proposals, not repeating Proposal H, but substituting Proposal "I," which provided that "[t]he Agency agrees to notify the Union and bargain completely regarding the proposed use of the old Anti-Smuggling facilities and parking accommodations prior to affecting [sic] changes in those areas." The Agency responded that it anticipated relocating the Personnel Section to the area vacated by the ASU. The Union wrote back on March 27, 1989, demanding to bargain fully "prior to any further remodeling being done."
Management provided floor plans to the Union, and the parties met April 10 to discuss the Union's concerns. During this meeting, the Union submitted another set of proposals, including another Proposal "I," which stated that "[t]he Union would also like to renew its request for the use of an office in one of the buildings the moves are affecting," without specifying which building. Three days later, the Union mailed yet another set of proposals to the Agency. This list included a third and more specific Proposal "I" which duplicated the original Proposal "H," differing only in the location of the space the Union wanted for its office. This time the Union requested space in the building being vacated by Personnel, rather than in the area where the ASU had been located. Management responded with its "last best offer" on April 17, answering the latest Proposal "I" by agreeing "to abide by the provisions of Articles 8 and 11 of the Negotiated [Master] Agreement," which provide respectively that office space will be made available for Union meetings on request subject to availability, and that national Union representatives shall be permitted access to all Agency installations.
The Union notified the Agency that it continued to disagree with management's plans, and demanded further negotiations. The Patrol completed remodelling of the vacated ASU facilities and moved its Personnel employees into that space. The Property and Procurement Unit, which had previously shared the ASU space, was relocated in the space in the other building vacated by Personnel.
On May 17, 1989, the Union filed unfair labor practice ("ULP") charges, and in August, the General Counsel issued a complaint alleging that the Agency had "changed the working conditions of unit employees ... by remodelling vacated facilities and relocating employees to different work locations without fulfilling its bargaining obligation with the Union over the impact and implementation of the changes."
The complaint does not expressly refer to the Union demand for office space. Charging portions of the pleading allege only that the Agency changed the working conditions "by unilaterally decentralizing the [ASU] ... without first completing bargaining with the union over the impact and implementation of the changes," and refusing to bargain in good faith with the Union.
Thereafter, an Administrative Law Judge ("ALJ") heard the matter and determined that the Agency had violated section 7116(a)(1)(5) of the Federal Service Labor Management Relations Statute ("the Statute"), 5 U.S.C. § 7116(a)(1)(5). United States Dep't of Justice, INS, U.S. Border Patrol, San Diego, Nos. 8-CA-90398 and 8-CA-90411 (ALJ July 13, 1990). The ALJ ordered the Agency, in addition to meeting posting and notification requirements, to bargain with the Union "over the impact and implementation of the decentralization of the ASU," and "the impact and implementation of the relocation of the employees and the remodeling of facilities ... at the San Diego sector headquarters." Id. at 20. He entered no explicit order addressing the Union's request for office space. Pursuant to5 C.F.R. § 2423.26(3) (1993), the ALJ informed the parties that exceptions to the decision must be filed on or before August 13, 1990. See 5 C.F.R. § 2423.26(c) (1990). When the Agency did not file exceptions to the ALJ's decision and proposed order, the Authority adopted the ALJ's decisions and directed the Agency to comply with the ALJ's order. United States Dep't of Justice, INS, U.S. Border Patrol, San Diego, Nos. 8-CA-90398 and 8-CA-90411 (FLRA Aug. 20, 1990). The Agency did not request reconsideration.
After issuance of the Authority's order, the Agency resumed bargaining with the Union over the "impact and implementation" issues that remained unresolved. Several specific issues relating to the relocation were resolved. However, the Union continued to press an amended Proposal, "J," for a permanent Union office. 1 This proposal contained a number of additional specifications for the space, including minimum measurements and provision of a separate phone line for electronic communications beyond those in Proposals "H" and "I." The new proposal provided that the office could be located in any building in the sector's headquarters compound so long as the building possessed amenities conforming to the new requirements.
The Agency refused to bargain over Proposal "J," asserting that the decision and order did not require it to do so. The Union complained to the FLRA's Regional Counsel about the Agency's refusal to entertain Proposal J. The Counsel wrote the Patrol to inquire why it was not carrying out the Authority's order. The Agency responded that the order did not require it to negotiate over this proposal, noting that the original complaint, the Authority's ULP findings, and the order are all directed to failure to complete bargaining over impact and implementation, as required by 5 U.S.C. § 7106(b)(2) and (3). It also pointed out that the General Counsel had never asserted that Management's refusal to entertain the Union office proposals constituted a redressable violation. Finally, the...
To continue reading
Request your trial
-
National Treasury Employees Union v. Chertoff
...also requires that agencies negotiate over the "impact and implementation" of those rights, id. § 7106(b). See FLRA v. U.S. Dep't of Justice, 994 F.2d 868, 871-72 (D.C.Cir.1993). This general framework must be followed by DHS to ensure collective bargaining for its employees, as required by......
-
National Treasury Employees Union v. Chertoff
...of Health and Human Servs. v. FLRA, 858 F.2d 1278, 1283 (7th Cir.1988) (citing 5 U.S.C. § 7103(a)(14)); see also FLRA v. U.S. Dep't of Justice, 994 F.2d 868, 872 (D.C.Cir.1993) ("[B]y case law and statutory reference, the term `impact and implementation' includes only the `procedures which ......
-
National Ass'n of Gov. Emp. v. F.L.R.A.
...of Health & Human Servs., Social Security Admin., 24 F.L.R.A. 403, 407-08, 1986 WL 54539 (1986)); see also FLRA v. United States Dep't of Justice, 994 F.2d 868, 872 (D.C.Cir.1993). B. Factual The collective bargaining relationship between the Union and the Medical Center is governed, in par......
-
National Treasury Employ. v. Fed. Labor Relat., 04-1137.
...to management officials the authority to, inter alia, make budget, organization, and work assignments."2 FLRA v. United States Dep't of Justice, 994 F.2d 868, 871-72 (D.C.Cir.1993). Nonetheless, these rights of unilateral action, which are permissive subjects of bargaining, see Nat'l Treasu......