[ v55 p69 ]
55 FLRA No. 19
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE
WASHINGTON, D.C.
(Respondent)
and
NATIONAL BORDER PATROL COUNCIL
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
(Charging Party/Union)
SF-CA-30165
_____
DECISION AND ORDER
January 12, 1999
_____
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel and the Union each filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by its actions in implementing a new Air Operations Manual (Manual) after the Union had requested the assistance of the Federal Service Impasses Panel (the Panel). The Judge found that the Respondent violated the Statute, as alleged in the complaint. He recommended an order directing the Respondent to rescind the Manual, restore the status quo ante, and make whole any employee adversely affected by the Manual's implementation.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommendations only to the extent consistent with this decision. For reasons set forth below, we do not adopt the Judge's conclusion that the General Counsel established that the Respondent violated section 7116(a)(1), (5), and (6) of the Statute. In doing so, we modify the approach that the Authority will follow for resolving complaints alleging such violations. We remand the case to the Judge to apply the approach adopted herein.
Under the modified framework, the Authority's approach to determining whether an agency's implementation of changes in conditions of employment violates section 7116(a)(5) of the Statute remains unchanged. An additional violation of section 7116(a)(6) will be found only where the agency's implementation fails to cooperate with an impasse procedure or decision.
II. Background and Judge's Decision
The facts, which are set forth in the Judge's decision, are briefly summarized here.
The Respondent notified the Union that it intended to implement a new Air Operations Manual and invited the Union to submit impact and implementation proposals. The parties attempted unsuccessfully, through the exchange of correspondence, to agree on where and when negotiations would occur. Ultimately, the Respondent agreed by letter to some of the Union's ground rules proposals, presented counterproposals to the rest, and asserted that it would "implement the Manual unilaterally . . . if [the Union] continue[d] to delay." G.C. Exh. 12. The day after the Union received the Respondent's letter, the Union requested assistance from the Federal Mediation and Conciliation Service (FMCS) as well as from the Panel. The Respondent implemented the Manual approximately 2 weeks later, while the Union's request for assistance was pending before the Panel. [n2]
At the outset, the Judge found that there was no allegation before him that "either the Respondent or the Union bargained in bad faith . . . ." Judge's Decision at 7. According to the Judge, the "only allegation" before him was that the Respondent "violated the Statute by implementing the Manual while the matter was pending before the Panel." Id.
The Judge rejected the Respondent's contention that it was entitled to implement the Manual on October 1 because the Union's request to the Panel was filed before the parties had reached impasse. The Judge [ v55 p70 ] stated that, "even if the Panel had declined jurisdiction over the dispute in this case, the Respondent's implementation of the Manual while the matter was pending before the Panel would have been improper." Judge's Decision at 8-9, n.15. The Judge also concluded that implementation of the Manual "was not consistent with the necessary functioning of the agency." Id. at 11.
As a remedy, the Judge recommended an order directing the Respondent to rescind the Manual, restore the status quo ante, and make whole any bargaining unit employees who suffered a loss of pay or benefits because of their failure to comply with the Manual. He based this remedy on application of the factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), [n3] as well as the fact that the Respondent implemented the Manual while the Union's request for assistance was pending before the Panel.
III. Positions of the Parties
A. Respondent's Exceptions
The Respondent argues that, under the standards governing its alleged violation of the Statute, [n4] the Judge was required to determine whether the parties had bargained to impasse before the Union invoked the services of the Panel, and that his failure to make this determination constitutes reversible error. Exceptions at 10 (citing Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985) (BATF)). The Respondent contends that the parties were not at impasse when the Respondent implemented the Manual because they had never met face-to-face, had never engaged in negotiations of any consequence, and had not attempted mediation. The Respondent relies on section 2470.2(e) of the Panel's regulations, 5 C.F.R. § 2470.2(e), which defines the term "impasse" as "that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement."
The Respondent also relies on the holding of the U.S. Court of Appeals for the Fifth Circuit that "unilateral implementation [during Panel proceedings] of a change determined to be nonnegotiable" is not an unfair labor practice. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 995 F.2d 46, 48 (5th Cir. 1993) (Department of Justice), reversing in part U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 44 FLRA 1065 (1992) (INS II). In the Respondent's view, "regardless of whether a union attempts to negotiate over a proposal which is nonnegotiable, or whether, as here, attempts to invoke the Panel's procedures before there has been any bargaining, the union has failed to fulfill the prerequisites to Panel jurisdiction." Exceptions at 23.
The Respondent also disagrees with the Judge's recommended remedy. With regard to the FCI factors, the Respondent contends that its implementation of the Manual "must necessarily be tempered by the `willful' misuse of the Panel's procedures by the Union." Id. at 31. The Respondent also contends that the record is silent as to any adverse effect on employees resulting from implementation of the Manual. As to the disruption that could result from a status quo ante remedy, the Respondent asserts that it implemented the Manual out of consideration for safety and internal security, citing U.S. Army Adjutant General Publications Center, St. Louis, Missouri, 22 FLRA 457, 459 (1986) (Army Publications Center).
B. The General Counsel's Opposition
The General Counsel asserts that whether the parties were at impasse is a matter for the Panel itself to determine. The General Counsel also points out that the Authority has not adopted the Fifth Circuit's decision in Department of Justice.
The General Counsel acknowledges the Authority's statement in Army Publications Center that greater weight must be given to the disruptive effects of a status [ v55 p71 ] quo ante remedy on an agency's internal security practices, but argues that the Judge gave these practices their proper weight in concluding that status quo ante relief would not disrupt or impair the efficiency and effectiveness of the Respondent's air safety operation. According to the General Counsel, the Respondent has pointed to no record evidence on which to conclude otherwise.
C. The Union's Opposition
The Union asserts that the Judge properly found that the Respondent violated the Statute by implementing the Manual at a time when its request for assistance was pending before the Panel. [n5] According to the Union, its request for intervention was properly before the Panel because applicable precedent dictates that once parties are unable to reach an agreement and the agency notifies the union that it intends to implement changes on a certain date, the union "must file" its request for Panel assistance before that date if it wishes to seek Panel assistance. Union's Opposition at 4 (emphasis in original). Here, according to the Union, it believed that it had no alternative but to file its request for assistance with the Panel.
The Union defends the Judge's recommended status quo ante order by arguing that FCI does not apply in cases where an agency makes unilateral changes in matters pending before the Panel. In the Union's view, if an agency cannot demonstrate that the changes in question were necessary, then "the appropriate remedy for such a violation must be to return to the status quo ante." Id. at 13 (emphasis in original).
IV. Analysis and Conclusions
A. Introduction
Under the Statute, there are two distinct unfair labor practices that relate specifically to an agency's conduct of negotiations leading to a collective bargaining agreement. Section 7116(a)(5) provides that it is an unfair labor practice "to refuse to consult or negotiate in good faith with a labor organization as required by this chapter[.]" Section 7116(a)(6) more specifically provides that an agency may not "fail or refuse to cooperate in impasse procedures and impasse decisions as required by this chapter[.]" The Authority has long recognized that these separate provisions are interrelated because "the impasse resolution procedures of the Panel comprise one aspect of the collective bargaining process" referred to in section 7116(a)(5). [n6] BATF, 18 FLRA at 472.
Our examination of the record in this case and applicable precedent makes evident that the Authority has not consistently defined the elements necessary to establish a violation of section 7116(a)(6). The Judge stated that a respondent is required to maintain the status quo "[o]nce parties reach an impasse . . . and one party timely invokes the services of the Panel . . . ." Judge's Decision at 7-8 (citing BATF, 18 FLRA at 468-69). The Respondent agrees with the Judge's statement of precedent, and asserts that these two elements -- existence of an impasse and timely invocation of Panel assistance -- are necessary preconditions to any finding that a respondent has failed to "cooperate in impasse procedures and decisions," within the meaning of section 7116(a)(6). See Exceptions at 10. Despite the Judge's recitation of the standard as requiring an impasse, however, the Judge made no finding that the parties had reached impasse in this case -- a failure that, according to the Respondent, was improper and constituted error. See Judge's Decision at 8 n.15. The General Counsel asserts that the Judge's failure to make a finding that the parties were at impasse was not improper, relying on a previous Authority decision where a violation of section 7116(a)(6) was found despite a finding of fact that the parties were not at impasse. See General [ v55 p72 ] Counsel's Opposition at 4 (citing Department of Veterans Affairs, Veterans Administration Medical Center, Decatur, Georgia, 46 FLRA 339, 345-46 (1992) (VA, Decatur)).
Resolving the Respondent's exceptions requires us to determine what it means to "fail or refuse to cooperate in impasse procedures and decisions" under section 7116(a)(6). The question squarely presented is whether the mere filing of a request for Panel assistance is sufficient to establish that an agency's failure to maintain the status quo constitutes an unfair labor practice under section 7116(a)(6). For the reasons fully explained below, we conclude that the General Counsel must establish more than the facts that implementation occurred at a time when a request for assistance was pending before the Panel: the General Counsel must establish that the implementation failed to cooperate with an impasse procedure or decision.
We emphasize that finding a violation of section 7116(a)(6) in circumstances where implementation occurs at a time when a request for Panel assistance is pending is unnecessary to enforce the obligation to maintain the status quo because such obligation is enforced under section 7116(a)(5). Therefore, as the approach to determining violations of section 7116(a)(5) remains unchanged, the modification adopted today to the framework for resolving section 7116(a)(6) claims does not, in any way, expand an agency's right to implement changes in conditions of employment prior to completing bargaining over the changes and participating in impasse procedures. In particular, the modification leaves undisturbed Authority precedent that finds it unlawful for an agency to implement changes in conditions of employment prior to the completion of bargaining, except in specific circumstances. We emphasize this here because it is misapprehended by the dissent, and we do not want our decision to leave agencies and exclusive representatives with any uncertainty on this central point.
Section IV.B. of this decision sets forth the doctrine that has been developed in Authority decisions for resolving complaints alleging that an agency violated section 7116(a)(5) and (a)(6) of the Statute by failing to maintain the status quo, and certain problems that have arisen in the application of that doctrine. In section IV.C. of this decision, we explain why a separate, implied obligation to maintain the status quo under section 7116(a)(6) is neither necessary nor supported by the wording, policies, or purposes of the Statute. In section IV.D., we explain the approach we will follow in deciding this and future cases where it is necessary to determine compliance with section 7116(a)(6). The modified framework we adopt is intended to both clarify the parties' obligations in circumstances such as those presented in this case, and to strengthen the Panel's important statutory role in assisting the parties to resolve negotiation impasses.
B. Both Section 7116(a)(6) and Section 7116(a)(5) Have Been Interpreted to Require Maintenance of the Status Quo
1. Agencies are required to complete negotiations and impasse procedures prior to making changes in working conditions, with certain exceptions
It is a long established principle that "the duty to bargain under the Statute requires that a party meet its obligation to negotiate prior to making changes in established conditions of employment[.]" BATF, 18 FLRA at 467. See, e.g., U.S. Immigration and Naturalization Service, United States Border Patrol, San Diego Sector, San Diego, California, 43 FLRA 642, 652-53 (1991), enforced 12 F.3d 882 (9th Cir. 1993) (INS, San Diego). This rule parallels the practice in the private sector under the National Labor Relations Act, where employers are also required to maintain working conditions during the course of bargaining. See National Labor Relations Board v. Katz, 369 U.S. 736 (1962). See generally Hardin, Developing Labor Law 596-601 (3d Ed. 1995) (Hardin).
The federal sector collective bargaining scheme contains distinctive procedures not present in the private sector, including procedures for the resolution of bargaining impasses. These impasse resolution devices are intended to facilitate and, if necessary, impose, a resolution of impasses. [n7] Chief among the impasse resolution devices contained in the Statute is the Panel, "whose job it is to suggest and if necessary, order terms of settlement between agencies and unions when they cannot agree." American Federation of Government Employees v. FLRA, 778 F.2d 850, 852 (D.C. Cir. 1985). See 5 U.S.C. § 7119.
One result of the additional impasse resolution procedures imposed by the Statute is that an agency is required to delay making proposed changes to working [ v55 p73 ] conditions not only while bargaining is ongoing, but also after an impasse in bargaining has been reached, during impasse procedures. BATF, 18 FLRA at 468. The agency is required to give the union appropriate notice that it considers bargaining at an impasse and that it intends to implement the proposed change in working conditions. See U.S. Immigration and Naturalization Service, 24 FLRA 786, 790 (1986) (INS I); U.S. Customs Service, 16 FLRA 198, 200 (1984). Such notice provides the union reasonable opportunity to seek Panel assistance before the agency implements the change. Id. Further, the Authority has held that, "once parties have reached an impasse in their negotiations and one party timely invokes the services of the Panel, the status quo must be maintained to the maximum extent possible, i.e., to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate." BATF, 18 FLRA at 469. In BATF, the Authority held that the respondent violated both 7116(a)(5) and (a)(6) by implementing certain changes after the parties had reached impasse and the union had timely requested the Panel's assistance; the Authority also held, however, that the respondent's failure to maintain the status quo did not violate either (a)(5) or (a)(6) as to other changes over which the respondent was not obligated to bargain. Id. at 470.
In addition to permitting an agency to implement changes when consistent with the necessary functioning of the agency, the Authority has recognized other circumstances in which an agency may implement changed working conditions without violating section 7116(a)(5), in each of which the agency implements at its peril if the exception asserted by the agency is determined not to apply. [n8] Similar defenses have been held to be available in cases alleging violations of section 7116(a)(6). [n9] The Authority also has recognized that a union may consent to a proposed change in conditions of employment, either explicitly through agreement or implicitly through action or inaction. Thus, an agency may implement changes in conditions of employment when a union fails to request bargaining within a reasonable period of time after being notified of proposed changes, fails to bargain, or fails to timely invoke the services of the Panel after the parties have reached impasse. See, e.g., INS I, 24 FLRA at 790. In these situations, the agency has, in effect, satisfied its bargaining obligation. [n10]
2. The Authority's standard for determining whether a failure to maintain the status quo violate section 7116(a)(6) has been stated and applied inconsistently
In BATF, 18 FLRA 466, the Authority held that an agency's implementation of changed working conditions when the parties had bargained to impasse and the matter was before the Panel violated both the general duty to bargain, enforced by section 7116(a)(5) of the Statute, and the specific duty to cooperate in impasse procedures, enforced by section 7116(a)(6) of the Stat- [ v55 p74 ] ute. Because the obligation to maintain the status quo under section 7116(a)(5) was clear, BATF did not impose any added obligations on agencies or unions. However, in requesting that the Authority issue a general ruling clarifying the parties' duties in this context, the Panel stated that unions interpreted BATF as "prohibiting an agency from implementing a change in working conditions only when the union involved has filed a request for Panel assistance." Order Denying Request for General Ruling, 31 FLRA 1294 (1988) (emphasis added). In other words, according to the Panel, parties read BATF as permitting implementation of changes in conditions of employment unless Panel assistance had been requested, without any requirement that there be an impasse in bargaining and without regard to the language of the BATF decision indicating that the obligation to maintain the status quo enforced by section 7116(a)(6) arose "once the parties had reached impasse and one party had invoked the services of the Panel[.]" BATF, 18 FLRA at 469. As the Panel described the effect of the unions' interpretation of BATF, "labor organizations have filed . . . requests [with the Panel] in order to delay implementation of changes in working conditions." Order Denying Request for General Ruling, 31 FLRA at 1294.
Despite the requirement stated in BATF that existence of an impasse is a prerequisite to enforcement of any obligation under section 7116(a)(6) to maintain the status quo, in at least one case decided subsequent to BATF, the Authority held that the agency had violated section 7116(a)(6) by failing to maintain the status quo despite the finding that the parties had not reached impasse at the time of the change. See VA, Decatur, 46 FLRA at 345-46. The apparent departure in this decision from the impasse requirement set forth in BATF was not acknowledged or explained by the Authority. In other cases, the fact that parties had reached impasse was noted in the Authority's decision but not relied on in finding a violation of section 7116(a)(6). See, e.g., Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 948-51 (1990) (SSA II). In yet another case, the Authority acknowledged that, under BATF, the status quo must be maintained "[o]nce parties reach an impasse in their negotiations and one party timely invokes the services of the Panel," but found a violation of section 7116(a)(6) without making any findings as to whether the parties had reached impasse at the time of the union's request for Panel assistance. See Air Force, 42 FLRA 266.
The BATF framework, as it has been implemented by the parties and the Authority and followed by the parties, implies that the invocation of the services of the Panel creates a new obligation on the part of the agency to maintain the status quo. However, the obligation to maintain the status quo that arises from the duty to bargain remains constant throughout the bargaining process. As noted above, it does not exist in circumstances where there is no duty to bargain, and it may be relieved by a union's failure to request bargaining, to bargain, or to request assistance of the Panel once a genuine impasse has been declared. Apart from VA, Decatur, however, there is no basis on which to conclude that the duty to maintain the status quo turns solely on whether a party has, perhaps precipitously, filed a request for assistance with the Panel. [n11]
The facts of this case illustrate the difficulties resulting from this inconsistent Authority precedent. The Respondent announced its proposed change in working conditions on May 20, 1992, and, for reasons that are contested, the parties engaged in only the most preliminary exchange of positions over the next 4 months. The Respondent unilaterally implemented the change on October 1, alleging that the Union's failure to [ v55 p75 ] bargain relieved it of its obligation to maintain the status quo.
The Respondent never denied an obligation to bargain over the Manual. Nor did the Respondent assert that the parties were at impasse. Nevertheless, on receiving notice of the Respondent's intent to implement the Manual, the Union filed a request for assistance with the Panel. The Union took this action despite its -- the Union's -- position that negotiations should continue.
Neither party has asserted that, at either the time of the Union's request for Panel assistance or the time of the Respondent's implementation of the Manual, negotiations were at a stalemate. Instead, the parties' dispute has centered on "who was responsible for . . . preventing negotiations[.]" Judge's Decision at 6. As such, this dispute would properly be resolved as an allegation -- and consideration of any defenses thereto -- that the Respondent violated section 7116(a)(5) by failing to bargain in good faith. Nevertheless, the unfair labor practice complaint alleges that the Respondent violated sections 7116(a)(1), (5), and (6) of the Statute by "unilaterally implement[ing] the changes [in working conditions described] . . . while the matter was pending before the Panel." Complaint, par. 13-15. In describing this theory of the Respondent's violation, the Judge found "irrelevant" considerations of "who was responsible for the failure to reach agreement on ground rules and therefore for preventing negotiations over the impact and implementation of the Respondent's decision to issue the new Manual." Judge's Decision at 6.
The Respondent asserts that the Judge erred in not requiring proof that an impasse had been reached. [n12] The General Counsel, the Charging Party, and the dissent, in contrast, view proof of impasse as unnecessary. In considering whether the Authority should follow the weight of its precedent, and find a violation of section 7116(a)(6) only in situations where an impasse has been reached (and a timely request for assistance has been filed with the Panel), or whether the Authority should agree with the General Counsel and follow VA, Decatur to find that an impasse is not necessary, it has become apparent that the premise of Authority precedent -- that section 7116(a)(6) enforces an implied obligation to maintain the status quo apart from any Panel procedure or decision -- is itself problematic. Because, as discussed below, there is no support in the Statute for finding this implied obligation, and because it is unnecessary to do so in order to effectuate an agency's obligation to maintain the status quo, we modify the Authority's framework to be applied in this and future cases for resolving complaints alleging violations of section 7116(a)(6) based on implementation of changes in conditions of employment.
C. Nothing in the Statute indicates that a separate, implied obligation to maintain the status quo is imposed by section 7116(a)(6)
1. The express terms of the Statute do not impose a separate, implied obligation under section 7116(a)(6)
Our review of the terms of the Statute and its purposes and policies persuades us that preventing the implementation of changes in conditions of employment prior to the completion of bargaining is an objective of the general duty to bargain enforced by section 7116(a)(5), and that nothing in section 7116(a)(6) separately requires an agency to maintain the status quo in situations, such as the one now before us, where the Panel has not directed the agency to do so in its procedures or in a decision. Although the policy requiring maintenance of the status quo where an impasse is pending before the Panel is indisputably compelling, Authority decisions have not explained why the policy is not adequately accomplished by the requirement to maintain the status quo under section 7116(a)(5).
Section 7116(a)(5) requires an agency to fulfill its statutory obligation to bargain in good faith. That obligation encompasses, in turn, bargaining over terms and conditions of employment. See 5 U.S.C. § 7106(a)(12). [ v55 p76 ] The long-standing precedent that an agency violates its obligation to bargain when it unilaterally implements changes in conditions of employment is firmly rooted in these statutory provisions. See Department of the Treasury, U.S. Customs Service, Region I, Boston, Massachusetts, 1 FLRA 398, 409 (1979) ("an agency and the exclusive representative shall meet and confer in good faith with respect to . . . matters affecting working conditions. . . . An agency is not permitted to alter or change such working conditions without first notifying the collective bargaining representative . . . and, upon request, bargaining about such proposed changes before they are put into effect.") (citing U.S. Army Finance and Accounting Center, Fort Benjamin Harrison, Indianapolis, Indiana, A/SLMR No. 651 (1976)). That is, except in the limited circumstances discussed above, supra n.8, an agency's obligation to bargain in good faith includes the obligation to maintain the status quo until completion of bargaining.
On the other hand, we find no support in the words of the Statute itself, or its legislative history, for reading into section 7116(a)(6) a separate requirement to maintain the status quo merely because a request for assistance has been filed with the Panel. In this regard, section 7116(a)(6) states that it is an unfair labor practice "to fail or refuse to cooperate in impasse procedures and impasse decisions" (emphasis added). Where these procedures or decisions direct the maintenance of the status quo, a refusal to act in accordance with such direction is clearly a refusal to cooperate with the procedures or decisions. However, in the absence of such direction, there appears to be no foundation for inferring it. Nothing in the plain wording of section 7116(a)(6) supports a conclusion that a separate, implied obligation, in addition to that in section 7116(a)(5), is imposed. Moreover, the legislative history is silent on this matter, and the Authority has not explained how an implied requirement is grounded in section 7116(a)(6) of the Statute. [n13]
As the Authority noted in BATF, 18 FLRA at 468-69, the finding that an obligation to maintain the status quo after an impasse has been reached and a timely request for Panel assistance has been filed originates in decisions of the Federal Labor Relations Council under Executive Order 11491 that were intended to effectuate the policy of the Executive Order to foster stability in the Federal labor-management relations program. See Internal Revenue Service, 6 FLRC 311, 313 n.3, 320 (1978) (after impasse and timely invocation of Panel processes, agency is required to maintain status quo to the maximum extent possible). Unlike the Statute, there was no express requirement under Executive Order 11491 to comply with Panel procedures and decisions. That is, there was no equivalent to section 7116(a)(6) of the Statute. However, consistent with the holding that the impasse resolution process operated as an aspect of the overall obligation to bargain under the Executive Order, a failure to maintain the status quo after impasse was reached and a timely request for Panel assistance was filed was held to violate section 19(a)(6) of the Executive Order, which prohibited a refusal to "consult, confer, or negotiate with a labor organization as required by [the] Order." See id.
Under the Statute, as under the Executive Order, it is clear that "[t]he impasse resolution procedures of the Panel operate as one aspect of the collective bargaining, or negotiation, process." Department of Energy, Washington, D.C., 51 FLRA 124, 129 (1995), reversed on other grounds sub nom. United States Department of Energy v. FLRA, 106 F.3d 1158 (4th Cir. 1997). Thus, the requirement to maintain the status quo pending completion of bargaining, which is firmly rooted in the statutory obligation to engage in collective bargaining, as enforced in section 7116(a)(5), continues through impasse resolution. See INS, San Diego, 43 FLRA at 653. In fact, we are not aware of any case (where the complaint alleged a violation of both section 7116(a)(5) and (6)) in which a violation of the existing implied obligation to maintain the status quo under section 7116(a)(6) has not also been found to violate section 7116(a)(5). [n14] See, e.g., SSA II, 35 FLRA at 949-51.
2. The purposes and policies of the Statute do not support imposition of a separate, implied obligation under section 7116(a)(6)
There are several respects in which the creation of a separate, implied obligation to maintain the status quo arising from section 7116(a)(6) does not promote the purposes and policies of the Statute.
[ v55 p77 ] First, it has led to confusion in unfair labor practice litigation. As Authority precedent demonstrates, disputes involving failure to maintain the status quo after impasse has been reached and the Panel's assistance has been timely sought have in some cases been litigated as alleged violations of section 7116(a)(5) alone. See SSA I, 35 FLRA at 302. Other unfair labor practice complaints have alleged violations of section 7116(a)(6) only. See HUD, 23 FLRA 435. Still other complaints, including the one now before us, alleged violations of both section 7116(a)(5) and (a)(6). In some cases where both section 7116(a)(5) and section 7116(a)(6) were allegedly violated by a failure to maintain the status quo, the alleged section 7116(a)(5) violation was "independent" of the alleged section 7116(a)(6) violation; in others the alleged violation of section 7116(a)(5) was "derivative" of the alleged violation of section 7116(a)(6). Compare U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 49 FLRA 1444 (1994) (section 7116(a)(5) independent of section 7116(a)(6)) with DHHS, 35 FLRA at 949-51 (section 7116(a)(5) derivative of section 7116(a)(6)). Indeed, in the complaint now before us, it will be necessary on remand to determine whether what was found to be a "derivative" violation may be an "independent" violation. See note 21, infra.
This case also provides another example of the confusion in prosecuting -- and defending -- alleged violations of section 7116(a)(6) under Authority precedent. The Respondent defends its implementation of the Manual by arguing that the Union's request for Panel assistance was premature. However, in attempting to excuse its implementation under section 7116(a)(6) -- by asserting that the parties had not bargained to impasse -- the agency's argument may actually establish that the implementation was unlawful under section 7116(a)(5). Conversely, the Union believed, and continues to assert, that it was obligated to request Panel assistance to forestall unilateral implementation. See Union's Opposition at 5 ("once Respondent notifies the Union of its intent to implement, the Union is under an obligation to seek the assistance of [] FSIP prior to implementation."). However, the Respondent did not assert at the time of implementation, and does not now assert, that the parties bargained to impasse. In fact, as noted above, the Respondent maintains that the parties had not bargained to impasse at the time of implementation. Accordingly, the Union was clearly mistaken: it was under no obligation under existing case law to seek Panel assistance in order to forestall implementation of the Manual.
As is apparent from the Union's actions in this case, grounding an agency's obligation to maintain the status quo in both section 7116(a)(5) and (a)(6) not only encourages, but also in the Charging Party's view requires, unions to file requests for Panel assistance in order to preserve a legal argument, rather than because the Panel's services are actually needed. As noted above, a union is required to request Panel assistance in one circumstance: upon receiving proper notice of an agency's intent to implement a change in conditions of employment because parties have reached impasse in their negotiations, a union is obligated to file a request for Panel assistance to forestall implementation. However, requiring a union to file a request for Panel assistance following any notice of implementation places the union in the untenable position of being required to request Panel assistance (in order to avoid implementation) only to be confronted later with an allegation that implementation was proper because the request was filed prematurely. [n15] Indeed, as noted previously, the Respondent characterizes the Union's request for Panel assistance in this case as a "`willful' misuse of the Panel's procedures . . . ." Exceptions at 31.
The foregoing demonstrates a second reason why the creation of a separate, implied obligation to maintain the status quo arising from section 7116(a)(6) does not promote the purposes and policies of the Statute. Specifically, to the extent that requiring a union to file a request for Panel assistance following any notice of implementation prompts parties to file requests for Panel assistance in order to protect their litigation posture, it deflects Panel resources away from the central task of resolving impasses. [n16] It also deflects the resources of the parties away from their tasks of engaging in collective bargaining and resolving bargaining disputes. [ v55 p78 ]
The difficulties described herein would be less weighty, in our assessment, if it were necessary to find a separate, implied obligation in section 7116(a)(6) in order to enforce the requirement to maintain the status quo until the completion of bargaining. However, as explained above, the impasse process is, in effect, subsumed within the collective bargaining process as a whole, such that a failure to maintain the status quo during the impasse process violates section 7116(a)(5). Therefore, we are unable to discern a reason for finding an independent, implied obligation under section 7116(a)(6) to maintain the status quo once Panel procedures are invoked. Put simply, it is unnecessary to create multiple enforcement grounds -- with their attendant confusion and potential for resource misuse -- when a single ground provides equivalent enforcement of the obligation. [n17]
D. The question whether an agency violates section 7116(a)(6) by implementing changes in conditions of employment will be resolved based on whether the agency cooperates with Panel procedures or a Panel decision requiring it to maintain the status quo
In view of the foregoing problems with Authority precedent, and because we do not discern either a need for imposing a separate, implied requirement to maintain the status quo in section 7116(a)(6) or a basis in the plain wording of the Statute, its legislative history, or its policies and purposes for doing so, we conclude that the doctrine must be revised. We will, henceforth, determine whether an agency that implements a change in conditions of employment has violated section 7116(a)(6) of the Statute based on whether maintenance of the status quo has been directed by impasse procedures or decisions. Previous Authority decisions to the contrary will no longer be followed.
As the above discussion makes clear, this modification in our approach to resolving the allegation presented in this case does not make any change in the bargaining obligations of agencies and unions. Specifically, an agency's obligation under section 7116(a)(5) to maintain the status quo -- both up to and through impasse resolution procedures -- remains intact. This clarification of the parties' obligations reinforces the continuing and unitary obligation of agencies, absent the existence of a specific exception, to maintain the status quo both during negotiations and after an impasse has been reached. Further, this change is not intended to discourage in any way the use of available dispute resolution procedures, including those of the Panel. In situations such as that presented in this case, it is perfectly appropriate for a union facing the implementation of changed working conditions to contact the Panel to determine whether its services, or those of other dispute resolution agencies, may be useful. The modification merely clarifies that a union is not obliged to seek Panel assistance simply to support an unfair labor practice charge. We leave it to the Panel to determine whether to adopt specific procedures concerning the maintenance of the status quo, or whether to issue such orders under particular circumstances. [n18] [ v55 p79 ]
As the dissent points out, with certain exceptions, both law and policy obligate an agency to maintain the status quo during the time an impasse is pending before the Panel. Despite our dissenting colleague's assertion to the contrary, today's decision neither undercuts that obligation in any way nor reduces unions' rights. [n19] In both the Federal and private sectors, that obligation historically has been rooted in the obligation to bargain in good faith, and a failure of a Federal agency to do so violates section 7116(a)(5) of the Statute. The obligation to maintain the status quo extended through impasse proceedings under Executive Order 11491, which did not contain an analogue to section 7116(a)(6), and continues to extend through impasse proceedings under section 7116(a)(5) of the Statute. That obligation has been enforced prior to this decision and will continue to be enforced after it. Agencies should not be mistakenly encouraged by the dissent to prematurely implement changes in working conditions without fulfilling their duty to bargain in good faith.
E. It Is Not Possible on the Existing Record to Apply the Revised Framework
The complaint in this case alleges that the Respondent violated sections 7116(a)(1), (5), and (6) of the Statute when it implemented changes in working conditions while a request for assistance was pending before the Panel. The Judge found that the "only allegation" before him was that the Respondent violated the Statute by implementing at a time when the Union's request for assistance was pending before the Panel. Judge's Decision at 7. In effect, the Judge found that the alleged violation of section 7116(a)(5) was derivative of the alleged section 7116(a)(6) violation. There are no exceptions to the Judge's finding, which the Respondent expressly adopts without opposition from the General Counsel. [n20]
The record before us does not provide a sufficient basis to resolve the complaint under the modified framework we have announced today. For example, the record is unclear whether impasse procedures were violated or whether the Panel had directed the Respondent to maintain the status quo in this case. In fact, as noted supra note 2, the record in this case is not complete with regard to the Panel's actions following the Union's request for assistance. The introduction of evidence concerning these matters was not required under previous Authority precedent, which, as explained above, did not require evidence of a Panel direction to sustain a violation of section 7116(a)(6). In addition, in view of the modification in Authority doctrine concerning the elements necessary to establish a violation of section 7116(a)(6) announced in this decision, questions concerning retroactively applying this rule need to be resolved. In resolving this question, it would be appropriate for the Judge to direct that the parties file briefs on the issue.
In view of the foregoing, we remand the complaint to the Judge for a determination of what, if any, further proceedings are necessary in the case. [n21]
V. Order
The complaint is remanded to the Judge for further action consistent with this decision.
File 1: Authority's Decision in 55 FLRA No.
19
File 2: Opinion of Member Wasserman
File 3: ALJ's Decision
Footnote # 1 for 55 FLRA No. 19 - Authority's Decision
Member Wasserman's dissenting opinion is set forth at the end of this decision.
Footnote # 2 for 55 FLRA No. 19 - Authority's Decision
The record contains little about the Panel's actions after the Union's request for assistance was filed. It does disclose, however, that over 8 months after the Respondent implemented the Manual, the Panel resolved this and other ground rules disputes between the parties by decision dated May 13, 1993. G.C. Exh. 19.
Footnote # 3 for 55 FLRA No. 19 - Authority's Decision
In FCI, the Authority enumerated the following factors to be considered in determining whether to issue a status quo ante remedy following an agency's unlawful implementation of changes in unit employees' conditions of employment over which impact and implementation bargaining is required: (1) whether and when notice was given the union by the agency concerning the change; (2) whether and when the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligation; (4) the nature and extent of the adverse impact on unit employees; and (5) whether and to what degree a status quo ante remedy would disrupt or impact the efficiency and effectiveness of the agency's operations. 8 FLRA at 606.
Footnote # 4 for 55 FLRA No. 19 - Authority's Decision
The Respondent notes the Judge's finding that the only allegation before him was that the Respondent violated the Statute by implementing the Manual at a time that the Union's request for assistance was pending before the Panel. The Respondent states:
Thus, the complaint does not allege a violation by means of unilateral implementation before having bargained to impasse, nor by some other general violation of an agency's bargaining obligation in such instances. Rather, the complaint is based only on the limited allegation that the Respondent implemented while there was a matter properly pending before the FSIP, and that the Respondent, thus, had an obligation to maintain the status quo.
Exceptions at 9.
Footnote # 5 for 55 FLRA No. 19 - Authority's Decision
The Union also asserts that the complaint is sufficiently broad to encompass a violation based on finding that "the Respondent failed to complete negotiations with the Union before it implemented its change in working conditions." Union's Opposition at 2.
Footnote # 6 for 55 FLRA No. 19 - Authority's Decision
Thus, an agency's refusal to cooperate in impasse proceedings is also considered a violation of the general duty to bargain stated in section 7116(a)(5). BATF, 18 FLRA at 472. For this reason, a finding of a violation of section 7116(a)(6) is nearly always accompanied by a finding of a violation of section 7116(a)(5). Id. But cf. U.S. Equal Employment Opportunity Commission, Washington, D.C., 48 FLRA 306, 312 n.3 (1993) (EEOC I) (respondent's failure to maintain the status quo after impasse reached and union filed timely request for Panel assistance alleged to violate section 7116(a)(6) but not section 7116(a)(5)); U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435 (1986) (HUD) (same). In such cases, the violation of section 7116(a)(5) is "derivative" of the section 7116(a)(6) violation. See, e.g., Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 949-51 (1990) (SSA II). As discussed in more detail infra, however, the reverse is not true. For example, in cases where the Panel is not involved, a change in conditions of employment may constitute an "independent" violation of section 7116(a)(5); section 7116(a)(6) is not involved in such cases. See, e.g., U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 258, 262-63 (1991). In addition, a failure to maintain the status quo after impasse has been reached and a timely request for assistance has been filed with the Panel violates section 7116(a)(5) even in situations where no violation of section 7116(a)(6) is alleged. See Social Security Administration, 35 FLRA 296, 302 (1990) (SSA I).
Footnote # 7 for 55 FLRA No. 19 - Authority's Decision
In the private sector, bargaining impasses may remain unresolved, and parties may attempt to resolve them through economic tactics such as strikes and the unilateral implementation of changed working conditions by employers. See Hardin at 696-97; see generally, National Labor Relations Board v. Insurance Agents International Union, 361 U.S. 477, 488-89 (1960) (describing the role of economic weapons in private sector bargaining).
Footnote # 8 for 55 FLRA No. 19 - Authority's Decision
First, an agency may lawfully implement changes in conditions of employment when it is not obligated to bargain over the change. For example, an agency is not obligated to bargain over a change when the impact of the change on the conditions of employment of unit employees is de minimis. See Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 45 FLRA 574, 576 (1992). Second, an agency may lawfully implement a change when a union's proposals in response to the change are outside the agency's duty to bargain. For example, where all union proposals are contrary to law, rule, or regulation, or the proposals concern matters that are already covered by an agreement between the parties, the agency is not required to maintain the status quo. See, e.g., U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 258, 262-63 (1991). Third, an agency may lawfully implement changes when necessary to correct an unlawful practice. See, e.g., Department of the Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA 543, 568 n.9 (1982). In this regard, an agency that implements a change in order to correct an unlawful practice is only obligated to bargain after implementation over the impact and implementation of the change. See Department of the Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, 17 FLRA 394 (1985).
Footnote # 9 for 55 FLRA No. 19 - Authority's Decision
See, e.g., Equal Employment Opportunity Commission, Washington, D.C., 52 FLRA 459 (1996) (EEOC II) (failure to maintain the status quo after impasse was reached and union had filed request for Panel assistance did not violate the Statute where the matter over which the union sought to bargain was covered by the parties' collective bargaining agreement); EEOC I, 48 FLRA at 310 (Authority rejected on the merits the respondent's defense that it was not obligated to bargain over change implemented after impasse was reached and a request for Panel assistance was filed because effect of change on unit employee's conditions of employment was de minimis); Department of the Air Force, Scott Air Force Base, Illinois, 42 FLRA 266, 271 (1991) (Air Force) (Authority rejected on the merits the respondent's assertion that it was not obligated to maintain the status quo after impasse was reached and a request for Panel assistance was filed because the union had waived its right to bargain over the change); BATF, 18 FLRA at 470 (Authority found that failure to maintain the status quo as to certain matters after impasse was reached and a request for Panel assistance was filed did not violate the Statute because the respondent had no obligation to bargain over those matters). We note that the U.S. Court of Appeals for the Fifth Circuit reversed the Authority's decision in INS II, 44 FLRA at 1073, that the respondent was obligated to maintain the status quo after impasse was reached and a request for Panel assistance was filed despite existence of a negotiability dispute over the union's proposals. Department of Justice, 995 F.2d at 48.
Footnote # 10 for 55 FLRA No. 19 - Authority's Decision
When lawful implementation occurs because a union fails to request bargaining, the changes must be consistent with the changes of which the union was notified. See U.S. Customs Service, 16 FLRA 198 (1981). When lawful implementation occurs because the parties have reached impasse and the union has failed to timely request the Panel's services, the changes may not exceed those encompassed by the agency's last proposal to the union. See U.S. Army Corps of Engineers, Philadelphia District, A/SLMR No. 673 (1976).
Footnote # 11 for 55 FLRA No. 19 - Authority's Decision
In this regard, the dissent implies that the approach it advocates -- finding that, subject only to a "necessary functioning" defense and, perhaps, a defense based on a union's "abuse" of Panel procedures, section 7116(a)(6) requires an agency to maintain the status quo when a union has only filed a request for Panel assistance -- is consistent with Authority precedent. It is not. With the exception of VA, Decatur, where a violation of section 7116(a)(6) was found despite the fact that the parties were not at impasse, and the possible exception of Air Force, where the Authority's statement of the framework it was applying recognized that impasse was necessary but the Authority's decision did not expressly find an impasse, failure to maintain the status quo has been found to violate section 7116(a)(6) only in cases where the parties were at impasse prior to the request for Panel assistance. Moreover, even VA, Decatur does not state, or provide reasoning supporting a conclusion, that the mere filing of a request for Panel assistance is sufficient to trigger an obligation to maintain the status quo under section 7116(a)(6). Thus, there is, at most, only scant support for finding an obligation based on the mere filing of a request for Panel assistance. It is certainly not, as described in the dissent, a rule established in "decades of precedent." Dissent at 1. Moreover, there is absolutely no support for the dissent's suggestion that implementation prior to reaching agreement "is virtually a per se impasse . . . ." Dissent at 5. Thus, the dissent also would modify current law, just in a different way than we adopt here.
Footnote # 12 for 55 FLRA No. 19 - Authority's Decision
We note that basing the agency's obligation to maintain the status quo on both the existence of an impasse and proper invocation of Panel procedures would require the Authority to determine whether the parties had reached impasse at the time of the union's request for Panel assistance or whether the union's request was premature. There are significant difficulties with such a rule, which would place the Authority in the position of making determinations regarding such matters as whether, and when, parties have exhausted voluntary efforts to reach agreement and whether, and when, the Panel asserted or acquired jurisdiction over an impasse. See 5 C.F.R. § 2470.2(e) (Panel's regulations define "impasse" as "that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement."). In particular, these determinations involve issues that existing Panel processes do not inform. For example, we are aware of no requirement that the Panel make public its determinations regarding jurisdiction over requests for its assistance and, in this case, there is no evidence that, prior to the issuance of its decision resolving the ground-rules dispute in this case, the Panel stated whether it had jurisdiction. In addition, extensive fact-finding would appear necessary to make these determinations. For reasons set forth in this decision, it is unnecessary for the Authority to undertake such determinations, which the statutory scheme dictates be made in the first instance by the Panel.
Footnote # 13 for 55 FLRA No. 19 - Authority's Decision
Similarly, although the requirement under existing Authority case law to maintain the status quo once the Panel is involved in impasse resolution has been referenced in judicial decisions, no court has examined the propriety of, or the necessity for, the requirement, or has indicated whether this obligation emanates from section 7116(a)(5) or (a)(6). See, e.g., Department of Justice, 995 F.2d at 47-48 ("While a matter is pending before the Impasses Panel, under FLRA rule the parties must maintain the status quo to the extent consistent with the necessary functioning of the agency.") (citing BATF, 18 FLRA 466); National Association of Government Employees v. FLRA, 893 F.2d 380, 382 (D.C. Cir. 1990) (NAGE v. FLRA) ("Had the union properly invoked the services of the Impasses Panel, any . . . failure to maintain the status quo (to the extent consistent with its functions) would have been, under the Authority's rulings, an unfair labor practice in violation of 5 U.S.C. § 7116(a)(1), (5), and (6).") (citing BATF, 18 FLRA at 469).
Footnote # 14 for 55 FLRA No. 19 - Authority's Decision
We note, however, that in U.S. Department of the Air Force, 375th Combat Support Group, Scott Air Force Base, Illinois, 49 FLRA 1444, 1474-75 (1994) (Scott AFB), the judge's recommended decision found a violation of section 7116(a)(5) without an accompanying violation of section 7116(a)(6). In particular, the judge recommended dismissal of the allegation that a failure to maintain the status quo violated section 7116(a)(6) on the ground that an impasse had been reached, while recommending a finding that the failure to maintain the status quo violated section 7116(a)(5). No exceptions were taken to the recommended decision regarding section 7116(a)(6); on review of exceptions relating to section 7116(a)(5), the Authority reversed the judge and dismissed the complaint on the ground that the matter over which the union sought to bargain was covered by the parties' collective bargaining agreement. Id. at 1449 n.3, 1452-54.
Footnote # 15 for 55 FLRA No. 19 - Authority's Decision
Here, if the parties had bargained to impasse, the Union would have been obligated to seek Panel assistance in order to require maintenance of the status quo under section 7116(a)(5) of the Statute.
Footnote # 16 for 55 FLRA No. 19 - Authority's Decision
We note, in this regard, that section 7119(c)(1) of the Statute provides that the "function" of the Panel "is to provide assistance in resolving negotiation impasses between agencies and exclusive representatives." Section 7119(b) provides that a party may request the Panel's assistance "[i]f voluntary arrangements . . . fail to resolve a negotiation impasse" (emphasis added). The voluntary arrangements referred to in section 7119(b) expressly include the services of "the Federal Mediation and Conciliation Service or any other third-party mediation[.]" One court has interpreted the requirement in section 7116(a)(6) that an agency cooperate in "impasse" procedures and decisions as conditioned on the existence of an impasse. See Patent Office Professional Association v. FLRA, 26 F.3d 1148, 1153 (D.C. Cir. 1994) ("before the Panel can employ its power, there must first be an impasse".) (emphasis in original). See also NAGE v. FLRA, 893 F.2d at 382 ("The status quo duty depends, however, on some party's having properly invoked the services of the Impasses Panel.") (emphasis added).
Footnote # 17 for 55 FLRA No. 19 - Authority's Decision
Central to the difference between our view of Authority precedent and that described by our dissenting colleague is disagreement over whether these enforcement grounds are equivalent. As we understand it, the dissent sees a distinction in current law between enforcement of an agency's obligation to maintain the status quo under section 7116(a)(5) and enforcement under section 7116(a)(6), with the former involving an "at your peril" standard and the latter subject only to a necessary functioning defense. See Dissent at 5 n.4, 9, 11. We disagree with this view of Authority precedent. In this regard, we note that longstanding precedent supports a conclusion that an agency acts at its peril in refusing to comply with a Panel decision. See Department of Defense, National Guard Bureau, Indiana Air National Guard, Indianapolis, Indiana, 17 FLRA 23, 24 (1985). In addition, as set forth supra note 8, the Authority has previously applied an "at your peril" standard in resolving allegations that an agency violated section 7116(a)(5) by failing to maintain the status quo, and, as set forth supra note 9, the Authority has evaluated duty-to-bargain and other defenses in determining whether failure to maintain the status quo violated section 7116(a)(6). Accord Department of Justice , 995 F.2d at 48 (court held that an at-your-peril standard also should be applied when an agency implements changes in conditions of employment on the ground that union proposals are outside the duty to bargain under the Statute). Such evaluation is consistent with an at-your-peril standard. The dissent advocates a standard whereby "implementation while statutory impasse proceedings are pending, [is] a per se unfair labor practice, absent proof that implementation was necessary for the agency to function[.]" Dissent at 9. However, since numerous duty-to-bargain defenses, in addition to the "necessary functioning" defense, have been available to respondents charged with violating section 7116(a)(6), Dissent at 9, we are unable to discern anything "per se" about the standard the dissent would adopt.
Footnote # 18 for 55 FLRA No. 19 - Authority's Decision
Since the circumstances in which the Panel may deem it appropriate to specify procedures requiring maintenance of the status quo cannot be anticipated, we do not here address what, if any, defenses (such as those set out in note 9, supra, or raised by the Respondent in this case) are available to respondents who do not cooperate in those procedures. Similarly, we will determine in an appropriate case what remedy should be provided for violations of section 7116(a)(6) under the new framework and, in particular, whether the existing FCI framework for evaluating requests for status quo ante relief should apply in such cases or whether a status quo ante remedy should be presumed appropriate in view of the importance of the Panel in the resolution of collective bargaining impasses. We note that, contrary to our dissenting colleague's suggestion, Dissent at 8-9, the FCI framework has been applied by the Authority in determining appropriate remedies for violations of section 7116(a)(6). See, e.g., INS II, 44 FLRA at 1075. The Authority has, however, not been consistent in doing so. Compare id. (FCI applied in determining whether to provide status quo ante remedy for violation of section 7116(a)(6)) with Department of Health and Human Services, Health Care Financing Administration , 39 FLRA 120, 133 (1991) (FCI not applied). In an appropriate case, it will be necessary to reconcile this inconsistent precedent.
Footnote # 19 for 55 FLRA No. 19 - Authority's Decision
The dissent dismisses our explanation that this decision does not alter an agency's responsibility to maintain the status quo, stating that the explanation "makes the change appear inconsequential" when "reality suggests otherwise." Dissent at 11 n.8. There is absolutely no basis for this reckless assertion that our explanation is about "appearances" rather that reality as perceived by the dissent. To the extent that the dissent's anxiety reflects concern that, as is the case in all unfair labor practice proceedings, enforcement of rights under the Statute depends on proper pleading and litigation by the General Counsel, surely complaints issued following this decision will be pled and prosecuted so as to fully enforce agency obligations to bargain in good faith and to cooperate in impasse procedures and decisions.
Footnote # 20 for 55 FLRA No. 19 - Authority's Decision
In this regard, the Union asserts in its opposition that the complaint in this case is broad enough to encompass a finding that there was an independent violation of section 7116(a)(5). Union Opposition at 2. However, the Union does not except to the Judge's conclusion that only a derivative section 7116(a)(5) violation was before him.
Footnote # 21 for 55 FLRA No. 19 - Authority's Decision
It is not clear whether it would be appropriate, or feasible, for the Judge to permit the General Counsel to, in effect, relitigate the complaint as an independent -- rather than derivative -- violation of section 7116(a)(5). We leave that matter to the parties and the Judge on remand.