[ v60 p943 ]
60 FLRA No. 170
UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
BORDER AND TRANSPORTATION
SECURITY DIRECTORATE
BUREAU OF CUSTOMS
AND BORDER PROTECTION
WASHINGTON, D.C.
(Respondent)
and
AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
NATIONAL BORDER PATROL COUNCIL
AFL-CIO
(Charging Party/Union)
WA-CA-02-0811
_____
DECISION AND ORDER
May 20, 2005
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, 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 filed an opposition to the exceptions. [n2]
The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by: (1) changing its policy on the type of personally owned handguns that employees could use and changing the number of hours of remedial firearms training provided to employees; and (2) repudiating a Memorandum of Understanding (MOU) concerning the above matters.
The Judge concluded that the Respondent did not violate the Statute by changing its policy on the type of personally owned handguns that employees could use and recommended dismissal of that portion of the complaint. The Respondent excepted to certain of the Judge's findings, although not to the conclusion. The Judge also found that the Respondent violated the Statute by changing the number of hours of remedial firearms training provided to employees and by repudiating the MOU. The Respondent excepted to the Judge's findings and conclusions with respect to these aspects of the complaint.
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. For the reasons discussed below, we conclude that the Respondent did not commit the unfair labor practices alleged in the complaint. Accordingly, we dismiss the complaint in its entirety.
II. Background and Judge's Decision
A. Background
Article 3A of the parties' collective bargaining agreement provides that after management has notified the Union of proposed changes to rules, regulations and policies at the national level, the Union has 30 days to serve notice of its intent to negotiate and an additional 10 days to submit written proposals. Under a separate MOU, which the parties negotiated to address the Respondent's Firearms Policy (Policy), the parties agreed that the Union would be notified, in accordance with the collective bargaining agreement, and given an opportunity to bargain over changes in the Policy and the types of personally owned handguns that employees could use.
In 2000, the Respondent chartered the Firearms and Force Board (Board), which was responsible for the development and oversight of the firearms program, including the selection of firearms and training and qualification requirements. The Union designated one representative to the Board who was allowed to vote and participate fully in the Board's activities. The Union's Executive Vice President represented the Union on the Board for approximately two years, after which the Union withdrew from participation.
During the period of May through July, 2001, the Board deliberated over the elimination of a firearm called the SIG-Sauer handgun as an authorized personally owned weapon that employees could use. During the deliberations, consensus was reached that current approvals for the SIG-Sauer would remain in effect. [ v60 p944 ] The Union representative indicated that the Union would agree to a cessation of new authorizations for the SIG-Sauer handgun if a different handgun were authorized for use instead. The Union also stated that it expected to receive notice of and an opportunity to bargain over proposed changes to the Respondent's Firearms Policy. Ultimately, in July 2001, the Firearms and Force Executive Committee (Committee), which consisted of various management officials to whom Board recommendations were made, recommended that existing authorizations for the SIG-Sauer handgun would terminate during calendar year 2003, following completion of bargaining with the Union, and that the handgun would no longer be approved for personal purchase and use by employees on the job.
On February 25, 2002, the Board, including the Union representative, was provided with Appendix 1B to the Policy via e-mail. Appendix 1B stated that the SIG-Sauer handgun was no longer authorized for personal purchase and that existing individual authorizations "will terminate in calendar year 2003." Judge's Decision at 9 (footnote omitted).
In addition to the issues surrounding the SIG-Sauer handgun, the Board, in January 2001, proposed that the Policy be modified to provide for 8 hours of remedial firearms training for Basic Trainee Officers who failed to pass the required firearms training course during their initial training. The Board's recommendation reflected the Respondent's view that a 1996 revision to the Policy that provided for 80 hours of remedial training, rather than 8 hours, was a typographical error. The Union claimed that the parties had negotiated an allowance of 80 hours of remedial training that could not be changed without negotiations.
On June 6, 2001, members of the Board were informed that, effective May 5, 2001, the Commissioner had approved the "correction" to the remedial training allotment, such that 8 hours of remedial training were authorized. [n3] Judge's Decision at 10. The parties disputed whether the Union representative was informed of this change at this time.
On March 1, 2002, the Respondent formally issued the revised Policy which included, as relevant here, the phase-out of the SIG-Sauer as an authorized personally owned weapon and a reduction in the amount of remedial firearms training from 80 hours to 8 hours. On April 3, 2002, the Policy was distributed to Board members. The Union representative stated that negotiations concerning the changes would be necessary.
Thereafter, on April 26, 2002, the Respondent provided the Union's President with a copy of the revised Policy. The Respondent also advised the Union President that the Union, through its representation on the Board, had received notice of the changes and had not made a timely request to bargain. As such, the Respondent took the position that the Union had waived its right to bargain. The Union President received this letter on May 18 and, 30 days thereafter on June 17, notified the Respondent that the Union had not received adequate notice of the changes, demanded that the Union be given an opportunity to bargain, requested certain information, submitted bargaining proposals and demanded rescission of the Policy pending the completion of bargaining. The Respondent subsequently furnished the requested information but rejected the Union's demands to bargain and rescind the Policy.
B. Judge's Decision
Initially, the Judge denied the General Counsel's motion to strike portions of the Respondent's post-hearing brief in which the Respondent referred to a decision of an administrative judge of the Merit Systems Protection Board (MSPB) and the Respondent's rationale in that decision for changing the amount of remedial training. The Judge found that matters pertaining to the MSPB judge's decision had been properly introduced into evidence. [n4] The Judge also found that the Respondent's assertion that the charge was not timely filed under § 7118(a)(4)(A) of the Statute was barred. [n5] In this connection, the Judge found that such a claim is an affirmative defense that must be raised prior to the close of the hearing. The Judge determined that the Respondent raised this defense for the first time in its post-hearing brief and, as such, that it was not timely raised. [ v60 p945 ]
As to the merits of the complaint, the Judge found that the changes in the type of handgun that employees could use and the amount of remedial training affected conditions of employment and that such changes were more than de minimis. Specifically, he found that the impact of the elimination of the SIG-Sauer as an authorized personally owned weapon is "obvious." Id. at 12. Noting that employees are allowed to purchase handguns other than the standard issue weapon, even after elimination of the SIG-Sauer as an authorized handgun, the Judge stated that "the parties recognize that the exercise of personal choice in weapons, however limited, is a matter of importance to at least some employees." Id. at 13.
As for the reduction in the amount of remedial training, the Judge found, based on the Union's undisputed testimony regarding bargaining history, that "the provision for 80 hours in the 1996 Firearms Policy was not a typographical error and that the subsequent reduction back to 8 hours was a substantive change." Id. The Judge also found that the impact of this change "is somewhat speculative" and that there "is no evidence that any employee has yet required the full 80 hours of remedial training, nor is there any evidence as to whether any employee has required more than 8 hours of remedial training." Id. Nonetheless, the Judge stated that an employee who failed to qualify in firearms proficiency was subject to termination. Id. The Judge further determined that the "the amount of remedial firearms training available to Basic Trainee Officers is not a management right and is substantively negotiable." Id. at 20. The Judge added that, "[e]ven if the establishment of a remedial training allocation were a management right, it should not be assumed before negotiations begin that the Union could not propose appropriate arrangements to alleviate the adverse impact of the policy on members of the bargaining unit." Id. at 21.
With regard to the practice of notifying the Union of proposed changes, the Judge made the following findings:
In considering the evidence as a whole, it appears likely that, while most of the notices regarding national issues might have been directed in writing to [the Union President], there was no hard and fast rule to that effect, especially as to matters within the purview of the Board. Furthermore, the evidence shows that subordinate Union officials, including [the Union representative on the Board and a local president located in California], kept [the Union President] informed of proposed changes which they felt should be negotiated at the national level.
Id. at 14 (footnote omitted). The Judge also found that the Union did not inform the Respondent that notices should be in writing and directed exclusively to the Union President and that there was no binding past practice to this effect. Rather, the Judge stated that the Union had selected a representative to the Board and used that individual to communicate the Union's position to the Board. Noting also that the Union representative was the Union's Executive Vice- President, the Judge found that the representative, if "not actually authorized to receive notice on behalf of the Union, . . . at least had apparent authority to receive notice with regard to matters which were within the purview of the Board." Id. at 17 (footnote omitted).
More specifically as to the change in the use of the SIG-Sauer, the Judge found that the Union first received notice of the elimination of the SIG-Sauer as an authorized personally-owned handgun on February 25, 2002 when the Respondent provided Board members, including the Union representative, with copies of Appendix 1B. The Judge found that while there was no specific date on which the revision to the Policy was to be implemented, "it was indicated that the change, which included the elimination of the SIG-Sauer handgun, would go into effect as soon as possible." Id. at 17. The Judge reasoned that "the Union, through [the Union representative and the Union President] could have had no legitimate doubt concerning the action which it had to take to preserve its right to bargain." Id. Finding that the Union waited until June 17, 2002 to request bargaining and submit proposals, the Judge concluded that the Union waived its right to bargain over this change. On this basis, the Judge found that the Respondent did not violate the Statute, as alleged.
As for notice of the change in the amount of remedial training, the Judge determined that the Union representative did not receive a copy of the Commissioner's approval of the allotment of remedial firearms training until April 3, 2002. According to the Judge, on that date, the revised Policy was distributed to the Board along with notice that it had gone into effect on March 1, 2002. The Judge found that the Respondent failed to give the Union timely notice of the change and, therefore, violated § 7116(a)(1) and (5) of the Statute. The Judge further found that "[s]ince the Union did not receive timely pre-implementation notice of the reduction of remedial training hours, it was not required to request bargaining in the first place, . . . nor is it necessary to address the issue of the negotiability of the Union's proposals." Id. at 20. In reaching these conclusions, [ v60 p946 ] the Judge determined that the amount of remedial training "is not a management right and is substantively negotiable." Id. Alternatively, the Judge held that "[e]ven if the establishment of a remedial training allocation were a management right, it should not be assumed before negotiations begin that the Union could not propose appropriate arrangements to alleviate the adverse impact of the policy on members of the bargaining unit." Id. at 21.
The Judge also found an independent violation of the Statute by virtue of the Respondent's repudiation of the MOU. In this regard, the Judge found that the sole purpose of the MOU was to "restate and reinforce the Respondent's bargaining obligation with regard to . . . changes to the Firearms Policy." Id. at 21. While acknowledging that the Respondent "might have sincerely believed that it was not obligated to bargain because of the expiration of the 30 day time limit and the ruling by the MSPB judge, that belief does not detract from the willful nature of its failure to meet its obligations under both the Statute and the MOU[.]" Id. In sum, the Judge found that the Respondent's breach was clear and patent and that the bargaining obligation was at the heart of the MOU.
To remedy the violations, which were based in part on a unilateral change in a condition of employment that the Judge found to be substantively negotiable, the Judge ordered a status quo ante remedy. The Judge rejected the Respondent's contention that a status quo ante remedy would impose a burden on management finding no evidence of such an effect in the record. The Judge also addressed the Respondent's claim that ordering a status quo ante remedy "would amount to the `restoration' of the 8 hour remedial firearms training allowance because no employee has ever received more than 8 hours of remedial training." Judge's Decision at 22. The Judge found that such an argument "misses the point[,] and that "[t]he issue of the necessity of the 80 hour allowance may be raised during the course of bargaining." Id. Therefore, the Judge directed the Respondent to restore "to 80 hours as needed the amount of remedial firearms training" available to Basic Trainee Officers and to notify the Union and bargain, on request, prior to implementing changes to the Firearms Policy. Id. at 23.
III. Positions of the Parties
A. Respondent's Exceptions
1. Exceptions Regarding SIG-Sauer Firearm
The Respondent does not except to the Judge's conclusion that the Union waived its right to bargain over the elimination of the SIG-Sauer firearm. However, the Respondent excepts to the Judge's "faulty reasoning [which] could be used as adverse precedent[.]" Exceptions at 12, 19.
More specifically, the Respondent argues that the Judge erred in finding that there was a change in a condition of employment. According to the Respondent, employee concerns regarding the continued use of the SIG-Sauer handgun are issues of personal preference. In addition, the Respondent claims that the Judge erred in finding that the impact of the change was more than de minimis. In the Respondent's view, as "there is no substantive right to carry a personally owned firearm as a duty weapon," there is no foreseeable adverse impact on employees who have not yet purchased such a firearm and no right to reimbursement for those employees who had purchased such a firearm. Id. at 19.
2. Exceptions Regarding Remedial Training
Initially, the Respondent excepts to the Judge's determination that the Respondent failed to raise its limitations defense timely. The Respondent asserts that, contrary to the Judge's finding, the Respondent "expressly referenced" its motion for summary judgment and "clearly and unequivocally" raised in its opening statement at the hearing that the charge was not timely filed. Id. at 9. Based on testimony at the hearing, the Respondent states that
the correction from eighty (80) to eight (8) remedial training hours had been approved by [the] Acting Commissioner . . . effective May 15, 2001. . . . Thus, it is clear from the undisputed facts of this case that the alleged unfair labor practice occurred, if at all, on May 15, 2001. The charge in this case was filed on August 30, 2002, more than fifteen (15) months after the change in remedial firearms training hours was made effective, therefore the ULP was untimely filed and the complaint based upon the charge should have been dismissed.
Id. at 10.
Next, the Respondent disputes the Judge's finding that there was a change in a condition of employment. The Respondent asserts that "the alteration in the number of remedial training hours was simply a typographical correction to reflect the actual practice of the parties." Id. Based on the Judge's factual findings that "no one had ever received the full eighty (80) hours o[f] remedial training[,]" and "there was no evidence that any basic trainee had ever required more than eight (8) hours of remedial training[,]" the Respondent maintains [ v60 p947 ] that "from 1996 to 2002, the requirement for eighty (80) remedial training hours had existed solely on paper, and had never been implemented or enforced by either party." Id. at 11. As a consequence, the Respondent questions "whether a condition of employment can be `changed' if it never actually existed in practice[,]" citing as the "closest analogous legal precedent" United States Dep't of Justice, U.S. Immigration and Naturalization Service, U.S. Border Patrol, Washington, D.C., 41 FLRA 154 (1991). Id.
The Respondent further argues that the change in the amount of remedial training is not substantively negotiable as it affects management's right to assign work. The Respondent asserts that it has the right to determine the qualifications and skills necessary for employees to perform their duties and that providing 80 hours of remedial firearms training, rather than 8 hours, would delay the assignment of work. The Respondent explains that since firearms training is provided in "two hour blocks each day[,] an additional seventy-two 72 hours of remedial firearms training would require a total of an additional thirty-six (36) training days." Exceptions at 7. The Respondent also maintains that it would be "forced to allocate training resources . . . regardless of whether the trainee would be qualified in the shorter eight (8) hours period." Id. at 17-18.
Furthermore, relying on the Judge's statement that the impact of the change was "speculative," Judge's Decision at 13, the Respondent asserts that there was no obligation to bargain because the change was de minimis. In this connection, the Respondent states that the record evidence showed that there was only one trainee who was terminated after receiving 8 hours of remedial training but that this person was outside the bargaining unit. The Respondent claims that there was no evidence of any actual harm to employees attributable to the change in the Policy.
3. Exceptions Regarding the MOU
The Respondent claims that the Judge erred in finding that the Respondent repudiated the MOU. According to the Respondent, the Judge reached this result based on his finding that, as the MOU restated statutory bargaining obligations which the Respondent violated, the Respondent thereby repudiated the MOU. The Respondent asserts that "the mere fact that the Respondent allegedly failed to give proper notice pursuant to the MOU does not automatically make the contractual violation an unfair labor practice." Id. at 24. The Respondent argues that it had "a sound and arguable basis for believing that the alteration in remedial training hours was not a change in conditions of employment requiring notice to the [Union,]" and "a sound and arguable basis for believing that the notice provided via the [Board] meetings was sufficient to satisfy its obligations under the MOU." Id. at 24, 25. Further, the Respondent claims that the notice provision of the MOU is simply "a procedural matter" and "does not go to the heart of the MOU." Id. at 25.
In addition, the Respondent asserts that although the General Counsel claimed that two provisions of the MOU had been repudiated, the Judge "did not make any factual determination as to which provision he found to have been repudiated." Id. The Respondent states that, even if the Respondent breached the notice provision of the MOU, a single instance of noncompliance with one portion of the MOU does not constitute a repudiation of the MOU. As to another provision of the MOU dealing with clarifications of the Policy in response to inquiries made by field employees, and assuming its applicability, the Respondent maintains that it complied with the requirements contained therein.
4. Exception Regarding Status Quo Ante Remedy
The Respondent claims that the Judge's remedy, requiring that 80 hours of remedial firearms training be provided, constitutes a substantial interference with various management rights. Citing Fed. Corr. Insti., 8 FLRA 604 (1982), the Respondent maintains that it attempted to give notice to the Union of changes to the Policy, that it participated in good faith discussions regarding such changes, that there were no actual adverse consequences, that the "correction" in the amount of remedial training "was simply to correct a longstanding typographical error[,]" and that a requirement to provide 80 hours of remedial training "would force the Respondent to expend excessive and potentially unnecessary hours to train an employee." Exceptions at 28, 29.
B. General Counsel's Opposition
1. SIG-Sauer
The General Counsel asserts that because neither it nor the Respondent excepted to the Judge's conclusion that the Respondent did not violate the Statute by eliminating the SIG-Sauer as an authorized personally-owned weapon, "there is no reason for the Authority to address the Judge's findings and conclusions . . . and the Respondent's exceptions to the Judge's conclusions in that respect are unfounded and should be denied." Opposition at 4. The General Counsel maintains that the Judge's findings may be adopted without precedential significance. [ v60 p948 ]
2. Remedial Training
The General Counsel agrees with the Respondent that the latter's statute of limitations defense was timely raised before the Judge. However, the General Counsel maintains that the charge was timely filed within 6 months after the Union learned of the change in remedial training. In this regard, the General Counsel relies on the Judge's factual findings that: (1) the Union representative did not receive a copy of this change on June 6, 2001 and was not orally informed about it at that time; and (2) the Union was informed of the change on April 3, 2002, when the revised Policy was distributed to Board members.
The General Counsel disputes the Respondent's assertion that the change in the amount of remedial training "occurred `only on paper.'" Opposition at 5 (quoting Exceptions at 10). The General Counsel states that the Judge relied on record testimony and evidence to show that the 1996 Policy provided for 80 hours of training and that such provision resulted from bargaining. The General Counsel further argues that the Respondent's claim that 80 hours of training would extend over a period of 36 days is inconsistent with the 1996 Policy, which provides for remedial training over a two-week period.
The General Counsel also disputes the Respondent's claim that there was not a change in a condition of employment. The General Counsel asserts that the policy of providing 80 hours of remedial training existed in the 1996 Administrative Manual and, further, that the lack of evidence that any employee actually used more than 8 hours of remedial training does not establish a past practice limiting remedial training to 8 hours. In addition, the General Counsel maintains that the record supports the Judge's finding that the reasonably foreseeable impact of the reduction in the amount of remedial training was more than de minimis.
3. MOU
The General Counsel argues that the Judge properly concluded that the Respondent repudiated the MOU. The General Counsel states that the Judge's findings and conclusions are consistent with Authority precedent and are supported by the record.
4. Status Quo Ante Remedy
The General Counsel asserts that a status quo ante remedy is appropriate and necessary.
IV. Preliminary Matters
A. Union's Cross-Exceptions
After the Union filed its cross-exceptions to the Judge's decision, the Authority's Case Control Office issued a show cause order to the Union as it appeared that the cross-exceptions were untimely filed. In its order, the Case Control Office indicated that the due date for filing cross-exceptions was July 19, 2004 and that the cross-exceptions were filed with the Authority on August 2, 2004. It was also noted that the General Counsel had requested, and received, an extension of time in which to file its opposition and/or cross-exceptions but the Union had not made such a request.
In its response to the show cause order, the Union acknowledges that cross-exceptions were due on July 19. However, noting that the General Counsel received an extension of time until August 2 and the Union "concurred in" that request, the Union states that "it should have been regarded as the equivalent of joining in the request for extension of time, and therefore the extension which was granted to the General Counsel should have applied to the Charging Party as well." Response to Show Cause Order at 3. The Union also argues that when the Office of Administrative Law Judges grants motions for extensions of time, the extension applies to all parties. The Union states that it "was under the impression that the same rule applies to extensions granted by the Authority[.]" Id. at 2. The Union adds that "there is nothing in the regulations of the Authority indicating anything to the contrary." Id. Citing Authority precedent, the Union acknowledges that there is "brief mention" of a requirement that the General Counsel and charging parties file separate requests for extensions of time. Id. The Union asserts, however, that these decisions were issued prior to 1999, when the Authority "updated its regulations," and that the Authority did not incorporate that ruling into its procedural requirements. Id. Finally, the Union claims that the filing of its cross-exceptions on August 2 "causes no harm or prejudice to any party or to the Authority." Id. at 3.
We find that the cross-exceptions were not timely filed. In this connection, the record reflects that the General Counsel requested, and received, an extension of time in which to file its opposition and/or cross-exceptions. The Union made no such request and acknowledges that its cross-exceptions were received after the due date.
Section 2423.21 of the Authority's Regulations provides that motions for an extension of time must be in writing, must state the position of the other parties [ v60 p949 ] and must comply with filing and service requirements. In IRS, Philadelphia Service Ctr., 54 FLRA 674 (1998) (IRS), the Authority announced a rule that it would follow to eliminate any confusion regarding extensions of time to file documents with the Authority. The Authority stated, in relevant part, that "for all cases filed after the issuance of this decision, extensions of time to file will be granted only if a party specifically requests such extension." Id. at 681.
Contrary to the Union's contention, nothing in the Authority's revised Regulations, issued subsequent to IRS, affects in any manner the requirement that each party seeking an extension of time must file its own request. It is well established that parties filing actions with the Authority are responsible for being knowledgeable of the statutory and regulatory filing requirements. See, e.g., United States Dep't of Housing and Urban Development, Washington, D.C., 34 FLRA 307, 309 (1990). We find nothing in the Union's arguments that would provide a basis for finding that the cross-exceptions were timely filed. Consequently, we dismiss the cross-exceptions and, as a result, we do not consider the Respondent's opposition thereto. [n6]
B. Respondent's Motion to File Reply Brief to General Counsel's Opposition
The Respondent requested permission to file, and also filed, a reply brief to the General Counsel's opposition under § 2423.40(c) of the Authority's Regulations. In its motion, the Respondent claims that the General Counsel "asserted facts that are unsupported by the current record in an attempt to refute the Respondent's Exceptions, and has also misstated the applicable law in this case." Motion at 1.
The General Counsel filed an opposition to the Respondent's motion. The General Counsel argues that the Respondent's motion fails to comply with the Authority's Regulations. Among other things, the General Counsel asserts that the Respondent failed to receive prior permission from the Authority in advance of filing its brief.
Section 2423.40(c) states that "[r]eply briefs shall not be filed absent prior permission of the Authority." In United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 56 FLRA 706, 706 n.1 (2000), the respondent filed both a reply brief and a request to file the reply brief. Citing § 2423.40(c), the Authority noted that the respondent had not received prior permission to file the reply brief and had not otherwise provided a basis for considering the brief. Consequently, the Authority denied the request.
We reach the same result here. Without deciding whether, in all instances, a party would have to seek advance permission before filing a supplemental submission, we deny the Respondent's request because the Respondent has provided no basis for considering the brief. In this latter regard, all factual matters were set forth on the record and issues pertaining to the applicable legal standard are appropriate for resolution by the Authority, without regard to any asserted misstatements by a party.
V. Analysis and Conclusions
A. Exceptions Regarding SIG-Sauer Firearm
As noted earlier, the Respondent does not except to the Judge's conclusion that there was no violation of the Statute concerning this matter. However, the Respondent excepts to the Judge's findings that there was a change in conditions of employment and that the impact of the change was more than de minimis.
Under § 2423.41(a) of the Authority's Regulations, absent timely filed exceptions, "the findings, conclusions, and recommendations in the decision of the Administrative Law Judge shall, without precedential significance, become the findings, conclusions, decision and order of the Authority[.]" As there were no timely exceptions to the Judge's recommended dismissal of the portion of the complaint pertaining to the SIG-Sauer firearm, that portion of the Judge's decision is, without precedential significance, the decision of the Authority.
Having adopted the Judge's conclusion of no violation, we find it unnecessary to address the Respondent's exceptions set forth above because, even if we were to do so, it would not affect the outcome that we reach. In this respect, the Authority has declined to address exceptions to a judge's decision that would not change the ultimate result. See, e.g., United States Dep't of the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida, 60 FLRA 620, 622-23 (2005) (Member Pope dissenting as to finding of no violation) (unnecessary to resolve exceptions regarding prima facie case where respondent established affirmative defense); United States Dep't of Veterans Affairs, 55 FLRA 1213, 1216 n.4 (2000) (Member Wasserman concurring) (unnecessary to resolve particular exceptions where resolution would not affect the remedy). [ v60 p950 ]
Similarly here, we do not address the Respondent's exceptions pertaining to the elimination of the SIG-Sauer firearm as an authorized personally owned weapon.
B. Exceptions Regarding Remedial Training
1. Timeliness of Charge
In agreement with both the Respondent and the General Counsel, we find that the Judge erred in determining that the Respondent's claim that the charge was not timely filed is barred from consideration. Addressing that claim, we find that the charge was timely filed.
The Judge stated that the Respondent's claim was an affirmative defense that had to be raised prior to the close of the hearing. Finding that the Respondent did not raise the defense until its post-hearing brief, the Judge declined to consider the defense. The Respondent now argues, and the General Counsel agrees, that the defense was timely raised before the Judge, both in the Respondent's motion for summary judgment and at the unfair labor practice hearing. The record confirms that the Respondent raised its claim prior to and at the unfair labor practice hearing. Accordingly, we find that the Judge erred in failing to address the Respondent's claim that the charge was not timely filed.
Section 7118(a)(4)(A) of the Statute requires that a charge be filed within six months of the alleged unfair labor practice. The charge must be "based on events occurring within the six-month period preceding the original charge[.]" United States Penitentiary, Florence, Colorado, 53 FLRA 1393, 1402 (1998). The Authority has recognized that, at times, a charging party may not learn of an alleged unfair labor practice immediately, either due to a respondent's failure to perform a duty owed to the charging party or because of the respondent's concealment of the alleged unfair labor practice. In such circumstances, § 7118(a)(4)(B) of the Statute permits the General Counsel to issue a complaint when the charging party has filed an unfair labor practice charge within six months of discovery of the alleged unfair labor practice. See, e.g., United States Dep't of the Air Force, Williams Air Force Base, Chandler, Ariz., 38 FLRA 549, 560-61 (1990) (failure of agency to provide union with notice of change in working conditions warranted suspension of six month filing deadline for unfair labor practice charge).
In asserting that the charge was not timely filed, the Respondent argues that "the correction from eighty (80) to eight (8) remedial training hours" had been approved by the (Acting) Commissioner on May 15, 2001 and that "the alleged unfair labor practice occurred, if at all, on May 15, 2001." Exceptions at 10. The Respondent adds that since the unfair labor practice charge was filed on August 30, 2002, the charge was untimely filed "and the complaint based upon the cha[r]ge should have been dismissed." Id. The General Counsel argues that the Judge's factual findings support the conclusion that the charge was timely filed.
Whether or not the Respondent is correct that the change was made on May 15, 2001, the Judge found that the Union representative did not receive a copy of the Commissioner's approval of the allotment of remedial firearms training until April 3, 2002, when it was distributed to the Board members. The Respondent does not dispute this factual finding, which is supported by the record as a whole. See, e.g., United States Dep't of Transp., 48 FLRA 1211, 1215 (1993) (when reviewing a judge's factual findings, the Authority reviews the record to determine whether those factual findings are supported by substantial evidence in the record as a whole). The unfair labor practice charge was filed on August 30, 2002, well within the requisite six-month filing period. Accordingly, we find that the charge was timely filed.
2. Remedial Training [n7]
The Respondent asserts that the Judge erred in finding that the change in the amount of remedial training was more than de minimis.
It is well established that prior to implementing a change in conditions of employment, an agency is required to provide the exclusive representative with notice of the change and an opportunity to bargain over those aspects of the change that are within the duty to bargain, if the change will have more than a de minimis effect on conditions of employment. See United States Penitentiary, Leavenworth, Kan., 55 FLRA 704, 715 (1999). In applying the de minimis doctrine, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employees' conditions of employment. See United States Dep't of the Treasury, IRS, 56 FLRA 906, 913 (2000). In determining whether the reasonably foreseeable effects of a change are greater than de minimis, the Authority addresses what a respondent knew, or should have known, at the time of the change. See VA Med. Ctr., Phoenix, Ariz., 47 FLRA 419, 423 (1993) (citation omitted). [ v60 p951 ]
It is also well established that the General Counsel maintains the burden of proving all of the allegations of an unfair labor practice complaint. See United States Dep't of Commerce, Patent and Trademark Office, 54 FLRA 360, 370 (1998), petition denied, NAGE v. FLRA, 179 F.3d 946 (D.C. Cir. 1999) (the General Counsel bears the burden of establishing each and every element of an alleged unfair labor practice in order to establish a violation of the Statute).
In this case, the Judge found that the impact of the change in the amount of remedial training was "somewhat speculative." Judge's Decision at 13. In particular, he found no evidence that any employee had ever received more than 8 hours of remedial training. Nonetheless, he concluded that the reduction in the amount of remedial training available to employees -- from the 80 hours provided in the 1996 Policy to the 8 hours in the revised Policy -- was more than de minimis because, as a general matter, an employee who failed to qualify in firearms proficiency was subject to termination. Id.
Based on substantial evidence in the record as a whole, we find, contrary to the Judge, that the effect of the change in the amount of remedial training in this case was de minimis. Consequently, we find that the Respondent was not obligated to notify the Union and bargain over the change and that its failure to do so did not violate the Statute. See, e.g., United States Dep't of Homeland Sec. Border and Transp. Security Directorate, Bureau of Customs and Border Protection, Washington, D.C., 59 FLRA 728 (2004) (Authority dismissed complaint finding that change in policy concerning boarding of vessels was de minimis).
Our review of the record reveals the following. The Union President testified that one trainee, a probationary employee, was terminated after having received 8 hours of basic firearms training and 8 hours of remedial firearms training. [n8] See Transcript at 42, 68-69. The Union President further testified that this employee would have benefitted from an additional 72 hours of remedial training. See id. at 42. Even assuming that additional firearms instruction would have been beneficial to this employee, the General Counsel failed to establish that this employee was terminated based solely on a failure to satisfy the firearms training requirement. In this connection, there are other requirements that trainees must meet in order to successfully complete their training programs. There is no showing that this particular trainee met those other requirements and would have been retained had the employee been given, and successfully completed, additional firearms training. In addition, in response to whether the President was "aware of any other cases where a basic trainee was terminated after eight hours or remedial training only[,]" the President responded "[s]pecifically, no." Tr. at 70.
Testimony by the Union President regarding the claimed termination of other, unspecified agency employees who were provided only 8 hours of remedial training, see Tr. at 70, also does not establish that the change in this case had more than a de minimis impact on bargaining unit employees. The record reflects that the referenced employees were not in the Union's bargaining unit. Rather, they were in a different bargaining unit. Id. Similarly, the employee involved in the MSPB proceeding referenced at note 4, infra, was not in the Union's bargaining unit. See Tr. at 222. Evidence of any impact on non-bargaining unit employees does not serve to establish an impact on bargaining unit employees. [n9]
We note that, although there was conflicting testimony as to whether any employee had ever actually received 80 hours of remedial training, id. at 68, 175, that fact, even if true, establishes only that there may have been some occasions when employees were provided with that amount of remedial training. That fact alone would not establish that any employees were terminated because they did not receive 80 hours of remedial training or that any employees would have been terminated because they did not receive 80 hours of remedial training.
Finally, in addition to the record discussed above, which addresses actual impact on unit employees, we find no basis on which to conclude that any impact is foreseeable. We are, of course, aware that termination based on an employee's failure to satisfy required job qualifications is a significant matter. However, the Respondent's Policy had been in effect since 1996. Additionally, and as already noted, the General Counsel presented no evidence that any bargaining unit employees were terminated from their positions or otherwise harmed during this time, solely as a result of the [ v60 p952 ] employees' failure to receive 80 hours of remedial training. As such, we would be hard-pressed to conclude that any adverse effects are foreseeable at this point in time. Rather, at most, as the Judge specifically found, such effects are "somewhat speculative." Judge's Decision at 13. See also Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574 (1992) (effect of respondent's decision to discontinue recertification training was speculative).
In sum, based on record evidence, we find that the impact of the change on bargaining unit employees' conditions of employment was not more than de minimis. Accordingly, we find that the Respondent did not violate the Statute, as alleged in the complaint.
C. Exception Regarding MOU
The Judge found that the sole purpose of the MOU was to "restate and reinforce the Respondent's bargaining obligation with regard to . . . changes to the Firearms Policy." Judge's Decision at 21.
Having found, for the reasons set forth above, that the Respondent did not violate the Statute with respect to the changes in the Firearms Policy, we further find that the Respondent did not repudiate the MOU.
VI. Order
The complaint is dismissed. [n10]
File 1: Authority's Decision in 60
FLRA No.
170
File 2: Opinion of Mmeber Pope
File 3: ALJ's Decision
Footnote # 1 for 60 FLRA No. 170 - Authority's Decision
Member Pope's opinion, concurring in part and dissenting in part, appears at the end of this decision.
Footnote # 2 for 60 FLRA No. 170 - Authority's Decision
The Union filed cross-exceptions to the Judge's decision and the Respondent filed an opposition to the cross-exceptions. For the reasons explained below, in Part IV of this decision, we find that the cross-exceptions were not timely filed. Therefore, we dismiss the cross-exceptions and we do not consider the opposition thereto. Additionally, for the reasons explained in Part IV, we deny the Respondent's Motion for Leave to File a Reply Brief to the General Counsel's opposition.
Footnote # 3 for 60 FLRA No. 170 - Authority's Decision
The Respondent submitted documentary evidence to support its assertion that the correct effective date of the allotment of 8 hours of remedial training was May 15, 2001. See Resp. Ex. 16 at 3.
Footnote # 4 for 60 FLRA No. 170 - Authority's Decision
The decision of the MSPB judge is an unpublished decision and is not in the record. However, the FLRA Judge described that decision as having "upheld the Respondent's termination of an employee who was not in the bargaining unit[,]" based on the MSPB judge's finding that the allocation of 80 hours of remedial training was a typographical error. Judge's Decision at 10 n.11. The FLRA Judge declined to accord any weight to the MSPB judge's decision, other than its use in describing the Respondent's motivation for redefining the amount of remedial training.
Footnote # 5 for 60 FLRA No. 170 - Authority's Decision
Section 7118(a)(4)(A) states, with exceptions not relevant here, that "no complaint shall be issued on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority."
Footnote # 6 for 60 FLRA No. 170 - Authority's Decision
We also note that, while acknowledging that the cross-exceptions were filed after the due date, the Union did not request waiver of an expired time limit under § 2429.23(b) and, therefore, we do not address that section here.
Footnote # 7 for 60 FLRA No. 170 - Authority's Decision
For purposes of this analysis, we assume that the 1996 Policy provided for 80 hours of remedial training and the change in the amount of training affected conditions of employment of bargaining unit employees.
Footnote # 8 for 60 FLRA No. 170 - Authority's Decision
The Union President further testified that the Union filed a grievance over the trainee's termination but that the Union "subsequently determined that because the person was a probationer that we would not likely get it in front of an arbitrator that it would be tossed out on jurisdictional grounds." Tr. at 69-70.
Footnote # 9 for 60 FLRA No. 170 - Authority's Decision
We also note that the employee who was affected by a reduction in the amount of remedial training in Dep't of Homeland Security, Bureau of Immigration and Customs Enforcement, 60 FLRA 131 (2004) (Member Armendariz, dissenting in part and concurring in part; Member Pope dissenting in part), was in a different bargaining unit.
Footnote # 10 for 60 FLRA No. 170 - Authority's Decision
In view of this result, there is no need to address the Respondent's remaining exception concerning the Judge's remedy.