Dale Mills started working as a Health Technician at the Richmond VA Medical Center in 1999, and in 2003 she became First Vice-President of NAGE Local R4-78.  According to a local agreement between Local R4-78 and the Medical Center, the Union’s First Vice-President is entitled to two hours of official time per day.  Starting in 2003, Ms. Mills was allowed to use an average of three hours a day of official time, and almost every year thereafter, she used more and more official time.  By 2010, she was reporting directly to the Union office every day and almost never did any work as a Health Technician.  In 2010, Medical Center management determined that Mills should return to her Health Technician job on a full-time basis and only use two hours a day of official time, prompting her to file both a grievance and an unfair labor practice charge against management. 

 

          The primary question for me is:  did the actions of the parties between 2003 and 2010 establish a binding practice (amounting to a condition of employment) in which Mills worked nearly full-time as a Union representative, or are Mills and the Union unfairly claiming a benefit that they could not legally negotiate?  For the reasons set forth below, I conclude that the parties mutually adopted a practice of allowing Mills vastly more official time than the written agreements recognized.  This practice continued for a significant period (exceeding four years), so that reporting every morning to the Union office and working nearly full-time as a Union representative became conditions of Mills’s employment.  Even though the parties never expressly negotiated a written change to their contract, they mutually and consensually changed Mills’s conditions of employment by their practice.  Therefore, the Respondent could not re-impose the conditions specified in the contract without negotiating with the Union.

 

 

       Susan Anderson has been the President of the Union since 1999, and Dale Mills its First Vice-President since 2003.  Tr. 17-18, 204.  In 1997, the Union and the Respondent negotiated a memorandum of understanding (MOU), which stipulated that the Union President “is entitled to eight (8) hours of official time per day. . .  The 1^st Vice-President . . . is entitled to two hours of official time per day. . .  All other recognized union officials not identified above will be granted reasonable time as defined by the NAGE Master Agreement for representational functions.”  Jt. Ex. 2.  In 2001, the Union and Respondent settled an unfair labor practice charge by agreeing that the Union President could appoint an Acting President for periods that she is absent or unavailable, and that during such periods the Acting President is entitled to the same amount of official time as the President.  Jt. Ex. 3.

 

     In 1999, after suffering an injury while working as an LPN, Ms. Mills was reassigned to a job as a Health Technician, making appointments for patients in a variety of clinics and performing administrative work for the inpatient physicians (hospitalists).  Tr. 16, 34-35,    66-67.  Due to her physical limitations, she was not required to perform some of the patient care duties of a Health Technician.  Tr. 126-28.  Even before becoming an officer of the Union, she began performing representational duties for the Union and using official time for that work.  See GC Exs. 2 and 3, which show that she used 232 hours of official time in 2002.^[1]  In 2003, she assumed her position as First Vice-President of the Union, and she used 796.5 hours of official time that year.  Her official time increased each year thereafter, to 939 hours in 2004, 1002.75 hours in 2005, and 1464 hours in 2006.  GC Ex. 3.  Mills suffered another work injury in early 2007, which caused her to undergo back surgery and miss considerable time; as a result, her official time decreased to 857.25 hours for 2007.  Tr. 26; GC Ex. 3.  After returning full-time in February 2008, she used 1378 hours of official time in 2008 and 1228.75 hours in 2009.  Id.  

 

         Since Ms. Anderson, as Union President, is on 100% official time, she is not required to fill out time and attendance reports, and she does not need to obtain permission to work in the Union office; instead, her timekeeper automatically enters all her hours as official time .  Tr. 277-78.  Ms. Mills, however, must enter her hours, authorized absence, and leave in the Respondent’s computerized system, usually on a daily basis but at least once every pay period.  Tr. 55-57, 146-48; see also GC Ex. 2, which illustrates how Mills’s time was recorded and categorized whenever she used leave or authorized absence, often several times in a single day.  From 1999 to 2007, Mills would report in the morning to her office on the fourth floor, adjacent to the inpatient clinic; there, she would obtain reports listing the patients who had been admitted overnight and identifying which patients were assigned to which doctor, and she would advise the doctors what had happened to their patients overnight.  Tr. 66-67.  Her work for the Union was performed in the Union’s office in the basement and in other areas of the Medical Center, but she carried a pager in order to stay in contact with the doctors and nurses when she was away from her floor.  Tr. 68.  When she returned from her 2007 injury late that year, she initially performed her Health Technician duties for part of the day, obtaining the records and papers that the doctors needed at the start of the day and then working the remainder of the day in the Union office.  Tr. 26-27, 68-70.  She maintained this routine until approximately February 2008, after which time she began working full-time in the Union office.  Id.; see also 137-38.  From February 2008 to May 2010, Mills testified that she began reporting directly to the Union office in the morning and doing Union work the entire time, except for occasionally notarizing documents for staff and patients.  Tr. 26-27, 70-71.  Sometime in 2008, Dr. Murray, the head of the medical service and Mills’s supervisor, told her to take her personal belongings out of her desk on the fourth floor, as it wasn’t her office anymore; she complied and moved her belongings to the Union office.  Tr. 144-45.  After Mills stopped working regularly in the inpatient clinic, another Health Technician took her place full-time.  Tr. 35-36.             

     In response to the Agency’s letter to Mills, Union President Anderson contacted Agency representatives, and as a result of those discussions the Agency agreed to delay Mills’s return to her Health Technician job from May 3 to May 17. 

 

     The Agency and the Union could not reach agreement, however, on the underlying decision to reduce Mills’s official time to two hours a day and to require her to work the rest of the day as a Health Technician.  When the Agency failed to respond in writing to the Union’s May 14, 2010, bargaining request on this matter, the Union notified the Agency on May 21 that it would file an unfair labor practice charge in 15 days, unless the Agency agreed to bargain over the changes to Mills’s working conditions.  Jt. Ex. 6.  The Union also filed a grievance on June 1, 2010, alleging that by ordering Mills to return to her position of record, the Agency violated Article 5 of the Master Agreement,^[4]in that it changed the parties’ longstanding practice of allowing Mills to work on 100% official time.  Jt. Exs. 7, 8.  The Agency denied the grievance on September 17, 2010.  The Union filed its unfair labor practice charge on June 24, 2010.         

 

 

 

 

     The General Counsel argues that the Agency unilaterally changed Mills’s official-time status when it demanded that she return to her Health Technician job on a full-time basis and limited her official time to two hours a day.  While the GC recognizes that the 1997 MOU (Jt. Ex. 2) entitles the Local Union’s 1^st Vice-President to only two hours of official time per day, she submits that the longstanding mutual practice of the parties, allowing Mills to work full-time in the Union office, performing representational duties, established this as a condition of Mills’s employment, which could only be changed through negotiations.  The GC cites Dep’t of Veterans Affairs Med. Ctr., Muskogee, Okla., 53 FLRA 1228, 1240 (1998), and U.S. Dep’t of Labor, Wash., D.C., 38 FLRA 899, 908 (1990) (Labor I), in support of this argument. 

 

     Finally, the General Counsel argues that section 7116(d) of the Statute does not bar the Union from pursuing an unfair labor practice charge in this case.  Although the Union had previously filed a grievance protesting the reduction in Mills’s official time (Jt. Ex. 7), and that grievance arose from the same set of facts as the ULP charge, the GC asserts that the issues in the two cases were different:  in the grievance, the Union claimed that the Agency’s action violated Article 5 of the Master Agreement, but in the ULP charge it argues that the Agency violated its duty to bargain under section 7116(a)(5) of the Statute.  Since the legal theories of the two matters are different, the ULP charge is not barred by section 7116(d).  See, e.g., U.S. Dep’t of the Air Force, 62^nd Airlift Wing, McChord AFB, Wash., 63 FLRA 677, 680-81 (2009) (McChord AFB); U.S. Dep’t of Labor, Wash., D.C., 59 FLRA 112, 115 (2003) (Labor II).                                                                                                                                                                                                                                                    

      To remedy the unfair labor practices, the GC seeks an order requiring the Agency to return Mills to full-time official time status and to restore any leave that Mills used to perform Union representational matters.  It also requests that a notice of the unfair labor practice be posted on bulletin boards at the facility and sent by email to all bargaining unit employees.  The GC justifies the use of electronic mail for the notice, because that is the method that the Agency most commonly uses to communicate with its employees. 

 

     The Agency also denies that a practice was ever established in which Mills was permitted to work full-time as a Union representative.  Citing the definition in Labor I of a past practice, 38 FLRA at 908, the Agency argues that the evidence does not support the Union’s claim that Mills had been working all of her hours as a Union representative for several years.  Rather, Mills’s Leave Used Summary (GC Ex. 2) for 2009 and 2010 demonstrate that Mills must have worked in her Health Technician job at least 140 hours between January and May of 2010, and at least 300 hours in 2009.  Since GC Ex. 2 lists every day, or portion of a day, that Mills was on official time (reflected as “Authorized Absence”) and leave, counsel for the Agency infers that any hours not so attributed must have been hours that Mills worked as a Health Technician.  Those hours worked as a Health Technician demonstrate, in the Agency’s view, that there was no consistent practice over a significant period of time of Mills working entirely as a Union representative.  Moreover, Respondent argues that Union President Anderson’s testimony on the issue of past practice was not credible.

 

 

 

 

 

 

      See also Fed. Bureau of Prisons, 18 FLRA 314, 315 (1985).  Each prong of the test must be met for the ULP to be barred.  Olam Southwest Air Def. Sector (TAC), Point Arena Air Force Station, Point Arena, Cal., 51 FLRA 797, 802 (1996) (Olam).  The most commonly litigated prong is the first one, and in such cases, it must be determined whether “‘the ULP charge arose from the same set of factual circumstances as the grievance and the theory advanced in support of the ULP charge and the grievance are substantially similar.’”  Id. at 801-02.   

 

            In this case, the Union filed a grievance at the Step 2 level on June 1, 2010.^[5] 

 

            On their face, the two allegations are distinct and different, and closer analysis supports that impression.  As noted above, the grievance focused on an alleged violation of Article 5 of the Master Agreement, while the ULP charge focused on alleged violations of the Statute, most particularly the Agency’s refusal to “consult in good faith with the local union.” Compare Jt. Ex. 7 and GC Ex. 1(a) at 2.  The portion of Article 5 relevant to our case is Section 8, whose text was quoted in note 4, supra.  In the “Resolution Desired” portion of the grievance, the Union asked that the Agency “[r]eturn Ms. Mills to the past practice and agreement of her using 100% of official time for representational purposes for the bargaining unit.”  Jt. Ex. 7.  In light of Section 8(C)’s language permitting the parties locally to negotiate higher amounts of official time than the minimums set in the Master Agreement, and requiring the continuation of such locally-negotiated official time practices in certain circumstances, it is clear that the Union believed (correctly or not) that the Master Agreement required the Agency to continue Mills on 100% official time.  Union President Anderson confirmed this in her testimony, saying “the grievance was based – I based it on that Article 5 of the contract.  The unfair labor practice I based on the fact that I requested to bargain and they didn’t come back and bargain with me.”  Tr. 292.  When asked what aspect of Article 5 was violated, Anderson said, “Article 5, Section B[ ]” (Id.), and she then went on to read the portion of Section 8(B) requiring the continuation of existing past practices regarding official time.  Tr. 292-93.          

 

            When asked why she filed the ULP charge, Anderson testified, “Because the unfair labor was about the moving her back up there and not negotiating it.  They have the right to assign work but if they change their working conditions, they have an obligation to negotiate the change and the impact it would have.”  Tr. 296. 

 

               In McChord AFB, the Authority held that while the ULP charge (alleging that a supervisor made anti-union comments during a meeting discussing an employee’s proposed suspension) stemmed from the same factual circumstances as an earlier grievance (alleging that the suspension violated a contractual provision prohibiting coercion of employees), they rested on different legal theories for purposes of section 7116(d).  The Authority noted that it “has held, in a variety of circumstances, that a ULP alleging a violation of the Statute raises a sufficiently distinct theory from a grievance alleging a violation of a contract even when both matters arise from the same facts.”  63 FLRA at 680 (citation omitted).  It cited, in this regard, its decisions in Labor II, supra, 59 FLRA at 115; U.S. Dep’t of Veterans Affairs Med. Ctr., N. Chicago, Ill., 52 FLRA 387, 392 (1996)(VA Chicago); Olam, 51 FLRA at 803; and AFGE, Nat’l Council of EEOC Locals No. 216, 49 FLRA 906, 914 (1994). 

 

           The VA Chicago decision is particularly applicable to our case.  There, the union first filed a ULP charge alleging that the agency had changed the criteria for issuing performance awards to a group of employees without notifying the union or giving it a chance to bargain; a grievance was later filed, alleging that the denial of awards to these employees violated a contractual requirement that awards be distributed in a fair and equitable manner.  Thus, in both the VA Chicago case and ours, the alleged violation of the Statute involved a refusal to bargain over a change in conditions of employment – a change which, in both cases, also arguably violated the CBA.  See also Ass’n of Civilian Technicians, 55 FLRA 474 (1999), where both the ULP charge and the grievance alleged a failure to bargain over a change in employee duties, but the Authority held that the grievance involved only a contractual duty to bargain and the ULP asserted a statutory duty to bargain.  Id. at 475.  These cases stand in contrast to AFGE, Local 1917, 52 FLRA 658 (1996), where the Authority held that section 7116(d) barred a grievance because both the grievance and the ULP alleged that the agency’s unilateral change in the employees’ dress code violated the agency’s duty to bargain under Article 9 of the CBA.  Thus, while the ULP further alleged that the agency’s refusal to bargain violated the Statute, it had expressly raised the very same contractual provision as the grievance; therefore, relitigation of the same issue was improper.  Id. at 663-64.  In our case, as in VA Chicago, and unlike the facts of AFGE, Local 1917, the grievance asserted a contractual violation that was not asserted in the ULP charge.  While the grievance and the ULP both claimed that there was a binding practice of allowing Mills to work on 100% official time, the grievance was based on the language and meaning of Article 5 of the contract, an issue the Union did not raise in its ULP charge.  Accordingly, we can proceed to a consideration of the merits of the complaint. 

       

 

               The Authority has long held that the use of official time is a fully negotiable condition of employment.  Nat’l Treasury Employees Union, 52 FLRA 1265, 1282-87 (1997).  Although an employee’s use of official time necessarily limits management’s right under section 7106(a) to assign work (which is precisely what the Respondent was doing in ordering Mills to return to her position of record), the Authority has long held that the official time provisions of section 7131 carve out an exception to management’s rights.  Accordingly, “‘the use of official time under section 7131(d) – that is, its amount, allocation and scheduling – is negotiable absent an emergency or other special circumstances . . . .’”  Nat’l Treasury Employees Union, 45 FLRA 339, 347 (1992), quoting Military Entrance Processing Station, L.A., Cal., 25 FLRA 685, 689 (1987); see also AFGE, Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1530-31 (D.C. Cir. 1986). In the context of unfair labor practice proceedings, the Authority has applied this principle to prohibit an agency from changing practices or conditions relating to official time, unless the agency first notifies the union and negotiates the change, as well as its impact and implementation.  U.S. Patent & Trademark Office, 39 FLRA 1477 (1991) (PTO); U.S. Dep’t of the Navy, Naval Avionics Ctr., Indianapolis, Ind., 36 FLRA 567 (1990).

       In order to understand Ms. Mills’s official time status during these years, it makes no sense to consider the hours that she was not at the hospital – whether her absence was due to sick leave, annual leave, or other types of authorized absence.  Thus, it is the latter number in the sets of figures I quoted above that most accurately reflects what portion of Mills’s available work day was devoted to Union-related work:  44% in 2003, 55% in 2004, 66% in 2005, 83% in 2006, 73% in 2007, 81% in 2008, and 71% in 2009.  These figures generally confirm the testimony of Mills and Anderson -- that Mills gradually worked more and more official time in the years after she became First Vice-President, until she was working close to full-time as a Union representative and very little as a Health Technician.  Although the contract entitled her only to two hours a day of official time, she was working six or more hours a day, on average, from 2006 through 2009. 

 

      Since I will be ordering the Agency to return to the status quo ante in regard to Mills’s duties and official time, I want to be as precise as I can in identifying those working conditions that must be reinstated.  Both the General Counsel and its Union witnesses were inconsistent at the hearing in identifying Mills’s status: at times they would refer to Mills as working 100% official time, and at other times they would say that she worked nearly full-time on official time.  This ambiguity is at least partly a reflection of the less-than-complete precision of the time and attendance records and of witnesses’ memory.  But just as the time and attendance records (GC Ex. 2) show that Mills was spending approximately 75% of her working hours on official time, they also leave a gaping hole in establishing what Mills did during the other 25% of her time.  Counsel for the Respondent questioned Mills as to what she did in the hours that were not listed as “authorized absence” or any type of leave, but Mills could not say with any certainty.  Tr. 57-65.  She suggested that she might have accidentally failed to submit a leave or official time request for those time periods (Tr. 59), but it is implausible that she would have made such mistakes for 300 or more hours per year, especially since she was submitting such otherwise-detailed records.  Some of these hours may also have been for holidays or continuation of pay from a work injury, or for time she served on hospital committees or while attending training.  Tr. 41-45, 49-51, 114-20.  Respondent argues that all hours that are not attributed to a specific use in GC Ex. 2 must be presumed to be hours Mills was performing her duties as a Health Technician, but that is not at all clear either.  Ms. Mills repeatedly testified that she does not believe she performed any Health Technician work after February of 2008 (Tr. 26-27, 64, 69), but she could not explain what she did in the 322 hours in 2008 or the 373 hours in 2009 that are not attributed to leave or authorized absence.  The Respondent could have more convincingly rebutted Mills’s testimony by having Dr. Murray, Ms. Pardo, or some other supervisor testify that they observed Mills in the inpatient clinic performing Health Technician duties during this time, but no such testimony was forthcoming.  In light of the gaps in proof from both sides on this point, my best conclusion is that Mills did not perform Health Technician work with any gularity that she did occasionally assist the hospitalists when requested to do so, and that she also notarized documents as needed throughout the hospital, attended training, and served on committees in both her Union capacity and as an employee in the Medical Service of the hospital.  Thus I do not believe that she can be characterized as a full-time Union representative, or that there was a past practice of her working on 100% official  time.^[9]           

                                                                                                                                                                                                                                               

 

      This leaves Mills, the Union, and the Respondent with a very ambiguous set of working conditions, but this ambiguity is a function of their own choice, actions and inaction. The record reflects that Ms. Mills steadily worked more and more official time over the years, and that Medical Center management approved her official time requests and attendance reports throughout this period.  Furthermore, it appears that the efforts by Mills’s supervisor, Dr. Murray, to work out a more specific arrangement with the Union regarding Mills’s official time were resisted by higher management at the Medical Center.  The testimony of Kevin Little, who currently works for a different division of the Department of Veterans Affairs in Martinsburg, but who previously served first as Union President^[10]and then as Assistant Chief of Human Resources for the Respondent, is significant in describing the environment in which Mills gradually worked more and more official time.  Tr. 307-30. While Little was working in the Human Resources office, Dr. Murray had spoken with him several times about her dissatisfaction with Mills working nearly full-time doing Union work while occupying an FTEE as a Health Technician.  Tr. 313-15, 319-22.  During that period between roughly 2005 and 2007, the Union took the position that Mills needed more official time in order to perform her representational duties, and management advised Murray that it was unwilling to confront the Union on the issue or to negotiate a resolution of the problem.  Tr. 321, 322, 329.  To make up for the time Mills was working for the Union, Murray wanted to get hospital management to approve another FTEE for a Health Technician, but management refused to approve the additional position and advised Murray that she would have to deal with the official time issue on her own.  Tr. 314, 320, 329.  Little advised Murray that the extent of Mills’s official time was establishing a precedent that could bind the Agency.  Tr. 323-24. 

 

     While I recognize that much of Mr. Little’s testimony regarding Murray’s comments to him and her interactions with upper management are hearsay, I accept it for the limited purpose of corroborating, and providing context for, other evidence that shows the extent of the past practice concerning Mills’s official time.  Even without Little’s testimony, it is quite clear that one of the conditions of Mills’s employment was that she was allowed to spend more than 75% of her time at the hospital working, on official time, as a Union representative, and that she rarely, if ever, was required to work as a Health Technician between February 2008 and May 2010.  Little’s testimony suggests that management recognized, as early as 2005-2007, that these facts were creating a past practice that could become binding, and that the Agency consciously chose not to negotiate a different arrangement with the Union.                             Thus, when I order the Agency to return Ms. Mills to the status quo which existed in early 2010, the parties will be returning to a situation in which Mills was working predominantly as a Union representative, on official time, but in which she had no specific allotment of official time.  The historical pattern of Mills working between 71% and 83% of her working time on Union work between 2006 and 2009 will serve as a baseline for the parties going forward, but because the parties had not established any fixed or predictable amount of official time (other than the two hours a day that had long become obsolete), they cannot expect me to provide one.  They can, of course, choose to negotiate a better solution to the official time situation, but that is a decision for the parties to make.   

 

     After the Respondent gave Ms. Mills the April 26 letter, which changed her working conditions as outlined above, the Union twice requested that the Agency bargain over the changes.  Jt. Exs. 5, 6.  According to Union President Anderson, the Agency never responded to the Union’s request, and there is no evidence in the record reflecting that the Agency responded to either request.  Tr. 208-09, 271.  The Agency did agree to delay the starting date of Mills’s new position from May 3 to May 17 (Tr. 87-88, 271-73), and at some time after May 17, Agency officials discussed and worked out an agreement with Anderson as to the precise two hours a day that Mills would use her official time.  Tr. 39, 89-91, 175-76, 209, 211-13; see also GC Exs. 5, 6.  Thus, the evidence indicates that while the Agency engaged in limited discussions over at least some aspects of the impact and implementation of the April 26 letter, it neither responded to the Union’s requests to bargain over the substance of the letter nor engaged in any such bargaining.  As I have already stated, the changes to the amount of official time Mills was permitted were substantively negotiable; accordingly, the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing those changes without appropriate negotiation.  Moreover, the Respondent’s failure to even respond to the Union’s written demands to bargain constitute an independent violation of section 7116(a)(1) and (5).  U.S. Dep’t of Justice, Immigration & Naturalization Serv., 55 FLRA 892, 900-01 (1999); McClellan AFB, 35 FLRA at 769.         

 

            As I indicated earlier, the Respondent’s refusal to bargain before changing Mills’s official time arrangements requires that the Agency reinstate the conditions that existed before April of 2010.  When an agency has an obligation to bargain over the substance of a matter, and fails to meet that obligation, the Authority orders a status quo ante remedy in the absence of special circumstances.  Air Force Logistics Command, Warner Robins Air Logistics Ctr., Robins AFB, Ga., 53 FLRA 1664, 1671 (1998).  The Respondent does not cite any special circumstances in this case that would support the denial of status quo ante relief, nor does the record otherwise reveal any special circumstances.  Among other things, I will require the Respondent to reinstate the official time arrangements for Ms. Mills that were in effect on and before April 1, 2010, which permitted Mills to perform Union representational duties, on official time, for most of her working hours.  Any modification of the amount or arrangements for the use official time must be preceded by notification to the Union and bargaining, if the Union so requests. 

 

      Ms. Mills may also be entitled to make-whole relief, in the form of restoration of leave, if she used leave after May 17, 2010, to perform duties that otherwise would have been performed on official time.  See PTO, 39 FLRA at 1483.  In that same decision, the Authority further stated:  “We have specifically acknowledged that when official time authorized consistent with section 7131(d) is wrongfully denied and the covered activities are thereafter performed on nonduty time, section 7131(d) of the Statute entitles the employee to be paid at the appropriate straight-time rate for the amount of time that should have been official time.” Id.; see also U.S. Dep’t of Commerce, NOAA, Nat’l Weather Serv., 36 FLRA 352, 358 (1990).  The Respondent objects to the restoration of leave here, because there has been no proof that Mills used leave for Union work, but the Authority has made it clear that factual issues such as these should be resolved during compliance proceedings, rather than at the hearing.  U.S. Dep’t of Justice, Immigration & Naturalization Serv., L.A., Cal., 59 FLRA 387, 389 (2003) (INS LA). 

            The short answer to the GC’s request is that it has not met its burden of demonstrating that posting a notice in the traditional manner would be inadequate to accomplish the purposes of a notice posting, or that email dissemination will better serve those purposes.  The long answer is that while the time and conditions may be ripe for reviewing the “tradition” of using bulletin boards as the method for disseminating ULP notices, that is a policy decision for the Authority to make.  While the Authority has at least suggested that it might reconsider its notice-posting policy, it has not yet done so. 

 

 

 

            It might be reasonable to stop here momentarily and ask why the GC should even need to bother proving that disseminating the notice in two ways is likely to be more effective than disseminating it in only one way.  That is essentially what the GC seeks:  not to displace the “traditional” bulletin board posting, but to supplement it with an email sent by the Respondent (who has been found to have violated the Statute) to all employees in the bargaining unit.  Is it, after all, a question open to reasonable dispute that using two means of communicating a message will be more effective than using one means?  Or is the use of email to express this message such a significant break with the past, or so unduly burdensome, that it requires extraordinary justification?  I am tempted to answer both of these questions in the negative, but the case law seems to suggest the opposite.  

     In FCI Florence, the GC sought an order directing the agency to post notices on its bulletin boards, as well as on “the television monitors and electronic mail system normally used to disseminate information to employees[.]”  59 FLRA at 169.  Without distinguishing one of these supplemental forms of posting from the other, the Authority held that they “constitute a non-traditional remedy.”  Id. at 174.  It found that they were “not necessary to serve the goals of the notice remedy [ ]” and that the “traditional posting” (i.e. on bulletin boards) “will serve the stated goals.”  Id. at 173.  While the Judge described in some detail the evidence regarding the agency’s methods of communicating with employees (id. at 182), neither the Judge nor the Authority engaged in any lengthy analysis explaining why they believed the additional posting methods were necessary or not.  It might be expedient to distinguish our case from FCI Florence by noting that in the latter case the GC sought to disseminate the notice both by email and on the television monitors, but I cannot see how the use of the monitors is significantly different from email.  Rather, the determinative factor for the Authority in FCI Florence was its finding that the use of email to disseminate a ULP notice was a non-traditional remedy.  Because the Authority interpreted Warren AFB to require special factual justification for any non-traditional remedy, it required such proof to justify email dissemination.     

 

It is worth noting here that the General Counsel has been seeking to establish email notice posting as part of the arsenal of “traditional” ULP remedies now for more than four years.  I held a hearing in late 2009 in which this identical issue was litigated, and at that hearing, the GC offered extensive evidentiary proof as to how that respondent communicated with its employees, and how the employees received work-related news and other information.  The GC demonstrated to my satisfaction that employees rarely used, or even saw, the information posted on bulletin boards, and that both the agency and employees used email as their main source of important information.  As a result, I found in that case that the GC had met its burden of persuasion on the points set forth in Warren AFB and FCI Florence:  that a bulletin board posting alone would not accomplish the purposes of a notice posting and that email dissemination was necessary to effectuate those purposes.  DHS, U.S. Customs & Border Prot., El Paso, Tex., DA-CA-08-0179 & DA-CA-08-0180 (OALJ 10-03, Jan. 27, 2010) (no exceptions filed). 

 

       I also noted in my 2010 decision that while the Authority still considered email notice posting to be a nontraditional remedy, the National Labor Relations Board was in the process of rethinking its stance on the same issue.  Incorporating email posting as part of the standard process of posting notices was first advocated in a dissenting opinion in Int’l Business Machines Corp., 339 NLRB 966, 967 (2003) (dissenting opinion of Member Walsh).  The position drew additional (but still not definitive) support in Nordstrom, Inc., 347 NLRB 294, 294-95 n.5 (2006); and Valley Hospital Med. Ctr., Inc., 351 NLRB 1250, 1250 n.1 (2007). 

     Subsequently, the Board’s evolution on the issue of electronic notice posting culminated in its adoption of a new policy in J. Picini Flooring, 356 NLRB No. 9 (2010).  After issuing a notice inviting interested parties to submit briefs on the issue, the Board modified its policy and held that respondents who have been found to have committed a ULP “should be required to distribute remedial notices electronically when that is a customary means of communicating with employees or members.”  Id. at 1.  Such electronic distribution should be effectuated on the respondent’s intranet or internet site and by email, depending on what electronic means of communication are customarily used by the respondent.  The Board further ruled that these latter questions should be resolved at the compliance stage of the case, not by the ALJ or the Board.  Id. at 3-4.                  

 

      Since its FCI Florence decision, the Authority has ordered email dissemination of a ULP notice in one case, but it limited its holding to the “facts and circumstances” of that case.  U.S. DHS, U.S. Customs & Border Prot., El Paso, Tex.,67 FLRA 46, 50 n.4 (2012)    (DHS El Paso).^[12]  After noting the parties’ positions regarding traditional and non-traditional remedies, the Authority stated, “[a]ssuming without deciding that e-mail dissemination of the notice is a non-traditional remedy, we find that the present facts and circumstances demonstrate that it is appropriate here.”  Id.  The Authority found not only that the respondent agency used its computer system as the primary means of communicating with employees, but also that the statutory violation being remedied was the agency’s refusal to bargain over computer and email access for employees.  Id.  Accordingly, email dissemination of the notice was “reasonably necessary and would be effective to recreate the conditions and relationships with which the [ULP] interfered,” and would “effectuate the policies of the Statute, including the deterrence of future violative conduct.”  Id., quoting Warren AFB, 52 FLRA

 

       It appears, therefore, that while the Authority may be open to a re-thinking of its policy regarding the posting of notices, it has not yet done so.  And while there is much to be said for deferring resolution of the mechanics of notice-posting to the compliance process,^[13]  the current case law requires the GC to demonstrate at the hearing that posting on bulletin boards alone is inadequate to accomplish the purposes of a ULP notice and that electronic dissemination of the notice is also necessary to accomplish those purposes.  In my view, the key factor in determining whether a notice serves the dual purposes identified in National Guard Bureau is whether the message is effectively communicated to the maximum possible number of bargaining unit employees.^[14]  Thus, if the GC is to demonstrate that a “traditional” bulletin-board posting is less effective than dissemination of the notice by email, it should offer evidence, for example, that a significant number of employees do not see or read information placed on the bulletin board, and/or that significantly more employees will read the notice if it is sent by email. 

 

     The GC has not met its burden on this issue.  On the contrary, I have spent far more time and effort in my decision, weighing the issues involved in fashioning an appropriate remedy, than the GC did during or after the hearing.  The hearing transcript is almost totally devoid of any testimony regarding how the Respondent’s bulletin boards are used by employees, or how the Respondent’s email system is used by the employees.  The only reference to this point in the record is the brief acknowledgement by Ms. Anderson that the Agency uses email for “[a] lot of communication”.  Tr. 274.  This does not show the extent to which email is used, nor does it show the relative effectiveness of email and bulletin board notices in communicating with the entire bargaining unit.  (Ironically, the Union President herself does not like to use email for official notices.)  If the GC seeks to convince me or the Authority that ULP notices should be disseminated electronically – either in one case or in all future cases – it must actually offer persuasive evidence (as it did in the 2009 DHS El Paso hearing), and not simply ask for the remedy as an afterthought. 

 

     I am sympathetic to the notion that requiring electronic dissemination of these notices does not require a
major leap in federal administrative jurisprudence.  The NLRB’s words in J. Picini Flooring seem equally
applicable to FLRA cases:

 

 

356 NLRB No. 9 at 3.  The Authority’s “traditional” remedial notices have the identical language as NLRB notices, and the Authority has explicitly stated that the legal standard for evaluating ULP remedies under the Statute is the same as that for NRLB remedies.  See Warren AFB, 52 FLRA at 161; U.S. Dep’t of Justice, Bureau of Prisons, Safford, Ariz., 35 FLRA 431, 444-45 (1990).  The Authority, like the Board, “has a duty to adapt its rules and policies to the demands of changing circumstances.” J. Picini Flooring at 1 (citation omitted).  Communications technology is changing at a far faster pace than federal labor policy, and at the rate we are moving in regard to ULP notices, a change in FLRA policy may not occur until email has (like paper notices and wall-mounted bulletin boards) “gone the way of the telephone message pad and the interoffice envelope.”  Id. at 2.  Notwithstanding my personal sympathies, this is a policy decision that must be made by the Authority, not by me.  My duty is to evaluate whether the GC has met its burden of persuasion that:  (1) a bulletin board posting alone is inadequate to accomplish the purposes of a remedial notice; and (2) email dissemination of the notice is also necessary to accomplish those purposes.  Since the GC has offered next to nothing on these points, I cannot recommend such a remedy.     

 

      Accordingly, I recommend that the Authority adopt the following Order:

 

 

 

                                                                             _________________________________

                                                                             RICHARD A. PEARSON

                                                                             Administrative Law Judge