No. 99-1293 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _______________________________ FEDERAL LABOR RELATIONS AUTHORITY , Petitioner v. PUERTO RICO NATIONAL GUARD, PUERTO RICO AIR NATIONAL GUARD, SAN JUAN, PUERTO RICO, Respondent _______________________________ ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY DAVID M. SMITH Solicitor WILLIAM R. TOBEY Deputy Solicitor JAMES F. BLANDFORD Attorney Federal Labor Relations Authority 607 14th Street, N.W. Washington, D.C. 20424 (202) 482-6620 TABLE OF CONTENTS STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUES 2 STATEMENT OF THE CASE 2 I. Nature of the Case 2 II. Background 3 A. The Federal Service Labor-Management Relations Statute 3 B. Statement of the Facts 5 C. The ALJ's decision and recommended order 7 D. The Authority's Order 8 STANDARD OF REVIEW 9 SUMMARY OF ARGUMENT 10 ARGUMENT 14 I. The Puerto Rico National Guard committed unfair labor practices by repudiating a Memorandum of Understanding providing for the establishment of a compressed work schedule 15 A. This Court is without jurisdiction to consider the Guard's defense to the ULPs 16 1. This Court is without jurisdiction to consider any objection not made to the Authority, absent extraordinary circumstances 16 2. Neither "extraordinary circumstances" nor any other factor permits the Guard to assert before this Court its "impossibility" defense to the ULPs 19 a. Pursuing the "impossibility" defense to the ULPs was not futile 20 b. The Court's "equitable authority" cannot override section 7123(c)'s jurisdictional bar to further challenges to the Authority's ULP determination 22 3. The Guard's communications during the compliance phase of this case did not preserve the Guard's "impossibility" defense as an issue for judicial review 23 4. Judicial precedent cited by the Guard is inapposite 25 B. Even if the Court considers the Guard's "impossibility" defense, the Court should uphold the Authority's decision 28 1. The Guard had no basis in March 1997 for anticipating workload differences sufficient to render implementation of the MOU "impossible" 29 2. Even if workload differences could have been anticipated, such differences would not have made it "impossible" to implement the MOU 30 II. Circumstances occurring after the Authority issued its order have not rendered enforcement of the Authority's order inappropriate 32 A. Implementation of the MOU is neither "impossible" nor meaningless 32 B. The circumstances occurring subsequent to the Authority's order do not constitute "extraordinary circumstances" 35 C. Precedent does not support denying the Authority's Application for Enforcement 36 CONCLUSION 38 ADDENDUM Relevant portions of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) and other pertinent statutory provisions A-1 TABLE OF AUTHORITIES AFGE, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 9 Bureau of Alcohol, Tobacco and Firearms v. FLRA, , 464 U.S. 89 (1983) 3, 4, 10 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 9, 10 Department of Health and Human Servs. v. FLRA, 976 F.2d 1409 (D.C. Cir. 1992) 28, 33 Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA, 854 F.2d 1 (1st Cir. 1988) 4, 9 Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) 19 EEOC v. FLRA, 476 U.S. 19 (1986) 16, 17 FLRA v. Department of Justice, 137 F.3d 683 (2d Cir. 1998), vacated, 119 S. Ct. 2387 (1999) 20 FLRA v. United States Dep't of Commerce, 962 F.2d 1055 (D.C. Cir. 1992) 25, 26 FLRA v. United States Dep't of Justice, 994 F.2d 868 (D.C. Cir 1993) 26, 27 Georgia State Chapter, Ass'n of Civilian Technicians v. FLRA, 184 F.3d 889 (D.C. Cir. 1999) 17 Illinois National Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988) 5 KBI Security Serv., Inc. v. NLRB, 91 F.3d 291 (2d Cir. 1996) 19, 37 Local Union No. 25, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am. v. NLRB, 831 F.2d 1149 (1st Cir. 1987) 18 NLRB v. C&C; Plywood, 385 U.S. 421 (1967) 31 NLRB v. Dominick's Finer Foods, Inc., 28 F.3d 678 (7th Cir. 1994) 24 NLRB v FLRA, 2 F.3d. 1190 (D.C. Cir. 1993) 17, 20, 27 NLRB v. Greensboro News & Record, 843 F.2d 795 (4th Cir. 1988) 36, 37, 38 NLRB v. Howard Immel, Inc., 102 F.3d 948 (7th Cir. 1996) 19 NLRB v. Izzi, 343 F.2d 753 (1st Cir. 1965) 18 NLRB v. Maywood Plant of Grede Plastics, 628 F.2d 1 (D.C. Cir. 1980) 33, 36, 37 NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318 (1961) 23 NLRB v. Tri-State Warehouse & Distributing, Inc., 677 F.2d 31 (6th Cir. 1982) 19 NLRB v. Union Carbide Caribe, Inc., 423 F.2d 231 (1st Cir. 1970) 17 Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) 9 Overseas Educ. Ass'n, Inc. v. FLRA, 961 F.2d 36 (2d Cir. 1992) 20, 22 Power v. FLRA, 146 F.3d 995 (D.C. Cir. 1998) 10 Union de la Construccion de Concreto y Equipo Pesado v. NLRB, 10 F.3d 14 (1st Cir. 1993) 17 United States v. L.A. Tucker Truck Lines, 344 U.S. 33 (1952) 21 Van Dorn Plastic Machinery Co. v. NLRB, 881 F.2d 302 (6th Cir. 1989) 21 Washington Ass'n for Television & Children v. FCC, 712 F.2d 677 (D.C. Cir. 1983) 21 DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY Department of Veterans Affairs, Veterans Affairs Medical Ctr., Jackson, MS, 49 FLRA 171 (1994), pet. for review denied, 73 F.3d 390 (D.C. Cir. 1996) 36 Internal Revenue Serv., Washington, D.C., 47 FLRA 1091 (1993) 31 STATUTES Federal Service Labor- Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) 2 5 U.S.C. § 7105(a)(1) 3 5 U.S.C. § 7105(a)(2) 3 5 U.S.C. § 7105(a)(2)(G) 2 5 U.S.C. § 7105(a)(2)(I) 4 5 U.S.C. § 7116(a)(1) 2, 4, 7 5 U.S.C. § 7116(a)(5) 2, 4, 7 5 U.S.C. § 7118 2 5 U.S.C. § 7123(a) 26 5 U.S.C. § 7123(b) 2, 26 5 U.S.C. § 7123(c) passim 5 U.S.C. § 706(2)(A) 9 National Labor Relations Act, 29 U.S.C. § 160(e) passim CODE OF FEDERAL REGULATIONS 5 C.F.R. §§ 2423.30-2423.41 18 5 C.F.R. § 2423.41 9, 18, 24, 33 5 C.F.R. § 2423.41(a) 3 29 C.F.R. § 101.10 .... 18 29 C.F.R. § 101.12 18 29 C.F.R. § 101.12(b) 18 LEGISLATIVE HISTORY S. Rep. No. 95-969 at 106 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2828 18 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 99-1293 _______________________________ FEDERAL LABOR RELATIONS AUTHORITY, Petitioner v. PUERTO RICO NATIONAL GUARD, PUERTO RICO AIR NATIONAL GUARD, SAN JUAN, PUERTO RICO, Respondent _______________________________ ON APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY STATEMENT OF JURISDICTION The final decision and order under review in this case was issued by the Federal Labor Relations Authority ("FLRA" or "Authority") in Puerto Rico National Guard, Puerto Rico Air National Guard, San Juan, Puerto Rico, No. AT-CA-70505 (May 15, 1998). Joint Appendix (JA) 165. The Authority exercised jurisdiction over the case pursuant to section 7105(a)(2)(G) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (1994 & Supp. III 1997) (Statute).[1] This Court has jurisdiction to enforce the Authority's decisions and orders pursuant to section 7123(b) of the Statute. STATEMENT OF THE ISSUES I. Whether the Puerto Rico National Guard committed unfair labor practices by repudiating a Memorandum of Understanding providing for the establishment of a compressed work schedule. II. Whether circumstances occurring after the Authority issued its order render enforcement of the Authority's order inappropriate. STATEMENT OF THE CASE I. Nature of the Case This case arose as an unfair labor practice (ULP) proceeding brought under section 7118 of the Statute. The American Federation of Government Employees, Local 3936 (union) filed a charge with the Authority's General Counsel alleging that the Puerto Rico National Guard (Guard) violated section 7116(a)(1) and (5) of the Statute by repudiating a Memorandum of Understanding (MOU) providing for the implementation of a compressed work schedule. JA 77. The General Counsel issued a complaint and a hearing was held before an Authority Administrative Law Judge (ALJ). The ALJ found that the Guard violated the Statute as alleged and recommended that the Authority order the Guard to cease and desist from its illegal activity, implement the provisions of the MOU, and post a notice to all employees. JA 151-64. The Guard did not file exceptions to the ALJ's decision and recommended remedial order. Pursuant to section 2423.41(a) of the Authority's regulations (5 C.F.R. § 2423.41(a) (1999)), the ALJ's findings, conclusions, and recommendations became, without precedential significance, the findings, conclusions, and decision and order of the Authority. JA 165. The Guard has failed to comply with the Authority's remedial order and the Authority now seeks to have that order enforced. II. Background A. The Federal Service Labor-Management Relations Statute The Statute governs labor-management relations in the federal service. Under the Statute, the responsibilities of the Authority include adjudicating unfair labor practice complaints, negotiability disputes, bargaining unit and representation election matters, and resolving exceptions to arbitration awards. See 5 U.S.C. § 7105(a)(1), (2); see also Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 93 (1983) (BATF). The Authority thus ensures compliance with the statutory rights and obligations of federal employees, labor organizations that represent such federal employees, and federal agencies. The Authority is further empowered to take such actions as are necessary and appropriate to effectively administer the Statute's provisions. See 5 U.S.C. § 7105(a)(2)(I); BATF, 464 U.S. at 92-93. The Authority performs a role analogous to that of the National Labor Relations Board (NLRB) in the private sector. See BATF, 464 U.S. at 92-93; Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA, 854 F.2d 1, 2 (1st Cir. 1988). Congress intended the Authority, like the NLRB, "to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the [Statute]." BATF, 464 U.S. at 97. The Statute makes it a ULP for a federal agency employer to, among other things, "interfere with, restrain, or coerce any employee in the exercise by the employee of any right under [the Statute]," or to refuse to "negotiate in good faith." 5 U.S.C. § 7116(a)(1) and (5). In this case, the Guard was alleged to have repudiated a collective bargaining agreement, a violation of section 7116(a)(1) and (5). B. Statement of the Facts The union is the certified exclusive collective bargaining representative for a unit of employees of the Guard, including maintenance personnel at Muniz Air Force Base (Muniz AFB). JA 152. In October 1991, the union and the Guard entered into an agreement providing that they would postpone negotiations over alternative work schedules (AWS) until the Guard's completion of conversion to a new type of aircraft.[2] JA 152. In July 1993, the conversion period ended, but rather than begin negotiations, the Guard informed the union that it would not implement an AWS. JA 153. The union filed a ULP charge with the Authority, but the case was settled when the Guard agreed to begin negotiations by December 1994. JA 153-54. Pursuant to that agreement, the union submitted proposals for a CWS. In response, the Guard stated that such a schedule would adversely affect its operations and that the work schedules should not change. The Guard submitted no other counterproposals. The union filed another ULP charge alleging that the Guard illegally refused to bargain. This case was also settled when the Guard again agreed to negotiate, this time with the assistance of a mediator. JA 154. In October 1996, the union and the Guard finally negotiated and executed an MOU providing for a CWS consisting of four 10-hour days per week. JA 154-55. The CWS was to be implemented for a 6-month period beginning in March of 1997. JA 155. The MOU also provided that the parties would keep in "constant communication in order to fine tune the process as it evolves." Id. At the end of the 6-month period, the CWS would be evaluated based on "indicators" taking into account the CWS's effect on productivity, absenteeism, morale, safety, and cost savings to the government. JA 155-56. The baseline to which the effects of the CWS would be compared was the Guard's experience in these areas in "the last year." JA 156. The MOU provided no limitations on the implementation of the MOU. However, it did provide that the Adjutant General of Puerto Rico could unilaterally terminate the CWS at any time based on the determination that it "has become an obstacle for the accomplishment of the military mission" and "[i]n the work areas where the number of employees do not allow [sic] to implement a [CWS] schedule." JA 155. Although the MOU itself provided no reasons why the implementation was to be delayed for five months, the union representatives testified that they agreed to postpone implementation until the completion of an organizational readiness inspection (ORI) scheduled for March 1997. JA 156. These same representatives, the only witnesses present at the negotiations, testified that implementation of the MOU was not contingent on passing the inspection or any other circumstances. Id. The ORI was conducted in March 1997, and the Guard failed the inspection. JA 157. The Guard did not implement the agreed upon CWS nor did it communicate with the union concerning its intentions not to do so. Id. When the union inquired into the matter, it was informed that the CWS would not be implemented.[3] Id. In May 1997, the union filed the ULP charge that forms the basis of this case. JA 77. Based on the charge, the Authority's General Counsel issued a complaint and the case was heard before an ALJ. JA 80-83. C. The ALJ's decision and recommended order After a one-day hearing and consideration of both parties' briefs, the ALJ found that the Guard had repudiated the MOU and thereby violated sections 7116(a)(1) and (5) of the Statute. JA 160. As relevant here, the ALJ rejected the Guard's contention that there was "an unarticulated premise" of the MOU that the Guard was going to pass the ORI and that base operations would remain unchanged. JA 159. The ALJ noted that two union representatives, both of whom took part in the negotiation of the MOU, testified that there were no contingencies, explicit or implied, that would prohibit implementation of the MOU. The ALJ also observed that the Guard's only witness did not participate in the negotiations and was unable to testify as to what occurred or was said at the bargaining sessions. JA 160. In addition, the ALJ noted that as a matter of fact, during the scheduled 6-month period (March to September 1997) there had been no change in the aircraft assigned to Muniz Air Force Base. For all these reasons, the ALJ concluded that the Guard impermissibly failed to implement the agreed-upon CWS and violated the Statute as alleged. Id. The ALJ recommended that the Authority order the Guard to cease and desist from its unlawful conduct, to implement a CWS as provided for in the MOU, and to post an appropriate notice. JA 161-62. D. The Authority's Order The ALJ transmitted his decision and recommended order to the Authority and the parties on April 6, 1998. The transmittal informed the parties of the regulatory provisions that govern the filing of exceptions. JA 150. However, the Guard chose not to file exceptions to the ALJ's decision. Accordingly, pursuant to section 2423.41 of its regulations (5 C.F.R. § 2423.41), and in the absence of exceptions, the Authority issued its order dated May 15, 1998, adopting as its own the ALJ's findings, conclusions, and recommended order. JA 165. The Guard refused to comply with any portion of the Authority's order. On February 5, 1999, after two attempts by the appropriate regional offices of the Authority to ascertain whether the compliance would be effectuated, the Guard responded, claiming again that changed operational circumstances rendered implementation of the CWS impossible. JA 174-75. STANDARD OF REVIEW The standard of review of Authority decisions is "narrow." AFGE, Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998). Authority action shall be set aside only if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 7123(c), incorporating 5 U.S.C. § 706(2)(A); Department of the Navy, Naval Underwater Sys. Ctr. v. FLRA, 854 F.2d at 2; Overseas Educ. Ass'n, Inc. v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir. 1988). Under this standard, unless it appears from the Statute or its legislative history that the Authority's construction of its enabling act is not one that Congress would have sanctioned, the Authority's construction should be upheld. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). A court should defer to the Authority's construction as long as it is reasonable. See id. at 845. Further, as the Supreme Court has stated, the Authority is entitled to "considerable deference" when it exercises its "'special function of applying the general provisions of the [Statute] to the complexities' of federal labor relations." BATF, 464 U.S. at 97. Factual findings of the Authority that are supported by substantial evidence on the record as a whole are conclusive. See 5 U.S.C. § 7123(c); Power v. FLRA, 146 F.3d 995, 1000 (D.C. Cir. 1998) (Power). The Authority is entitled to have reasonable inferences it draws from its findings of fact not be displaced, even if the court might have reached a different view had the matter been before the court de novo. Power, 146 F.3d at 1001. SUMMARY OF ARGUMENT This case raises two distinct issues, which unfortunately the Guard's brief tends to conflate. The first is whether the Guard committed ULPs by repudiating the MOU establishing a CWS. The second is whether circumstances arising subsequent to the Authority's decision render enforcement of the Authority's order inappropriate. For the reasons discussed in the Authority's brief, the Court should affirm the Authority's decision and enforce its order in its entirety. I. The Court should affirm the Authority's conclusion that the Guard committed ULPs because: A) the Guard's contentions in this regard are not within the Court's jurisdiction to consider as the Guard did not urge them before the Authority; and B) in any event, the Authority's decision is supported by substantial evidence. A. Before the Authority's ALJ, the Guard contended that it did not repudiate the MOU because implementation was impossible at the time the CWS was to be established. However, the Guard failed to file exceptions to the ALJ's decision and recommended order and, therefore, never presented its defenses to the Authority. Section 7123(c) of the Statute provides that "[n]o objection that has not been urged before the Authority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances." In interpreting the virtually identical provision of the National Labor Relations Act, 29 U.S.C. § 160(e), this and other courts of appeals have held that they lack jurisdiction to entertain an objection to an ALJ's recommendation that was not excepted to before the Board. Further, and contrary to the Guard's contentions, neither "extraordinary circumstances" nor any other factor exists that would permit the Court to consider the Guard's arguments. First, the Guard cannot establish that filing exceptions would have been futile. Futility excuses a party from urging an objection before the Authority only when the Authority's position on a matter is deeply rooted and well documented, a situation not present here. Second, to the extent the Guard argues that the Court's "equitable authority" to modify the Authority's order overrides the jurisdictional bar raised by section 7123(c), those arguments are without merit. The Court may employ such authority to consider circumstances at the time enforcement is sought bearing on the appropriateness of enforcing the Authority's order, but this does not imply that the Court may also consider defenses to the underlying ULP determination abandoned by the Guard in the administrative proceeding below. Third, the Authority was not, as asserted by the Guard, presented with the Guard's "impossibility" defense. The Guard's letter of February 5, 1999, to the Authority's Boston Regional Attorney contending that compliance with the Authority's order was impossible did not constitute urging an objection to the Authority pursuant to section 7123(c). B. The ALJ's determination that the Guard committed ULPs by repudiating the MOU is reasonable and supported by substantial evidence. First, the premise on which the Guard's position is based, that the Guard could and did anticipate in March 1997 that its workload during the 6-month CWS period would be "out of kilter" with the baseline workload, is not supported by the record. In that regard, the record indicates little more than that a change in the aircraft assigned to Muniz AFB could be expected at some indefinite time in the future. Second, even if it were assumed that some workload differences could be anticipated, that alone would neither have been inconsistent with the MOU, nor sufficient to render the 6-month CWS period "meaningless." As the ALJ found, nothing in the MOU, express or implied, permitted the Guard unilaterally to refuse to implement the CWS. Moreover, even if workload changes might have affected how the evaluation of the 6-month CWS period was carried out, that alone would not necessarily have made the trial period "meaningless." For these reasons, the Court should affirm the Authority's determination that the Guard committed ULPs in this case. II. The Guard has not demonstrated that current circumstances render implementation of any portion of the Authority's order impossible, meaningless, or otherwise inequitable. In the first place, the circumstances alleged by the Guard to be relevant are, to a large extent, a continuation of those circumstances presented to the ALJ as part of the Guard's defense to the underlying ULP. As discussed above, those matters are not properly before the Court. Similarly, the circumstances that the Guard claims developed after the issuance of the Authority's order do not make it inappropriate to enforce the Authority's order. The Guard does not assert that these circumstances prohibit the establishment of a CWS. In addition, it has not been demonstrated that a 6-month CWS period would be "meaningless" even if it were necessary to take into account workload changes to meaningfully compare the CWS period with the MOU's baseline period. Accordingly, the Authority's order should be enforced in its entirety. ARGUMENT The Court should uphold the Authority's decision that the Guard committed ULPs and should enforce the Authority's remedial order in full. The Authority's argument is divided into two parts. As discussed in section I., below, the Court should reject the Guard's challenge to the Authority's determination that the Guard committed ULPs when it repudiated its MOU. The Guard's contentions are not within the Court's jurisdiction to consider because the Guard did not urge them before the Authority. Moreover, the core of the Guard's direct challenge to the Authority's ULP finding, that the MOU was impossible to implement in March 1997 because of circumstances existing at that time, is untenable. The second section of the Authority's argument deals with the Guard's objections to the Authority's remedial order based on circumstances that allegedly developed subsequent to the Authority's decision. As discussed in section II., below, the Guard's additional objections neither supply any reason making it inappropriate to enforce the Authority's order in full, nor do they constitute "extraordinary circumstances" permitting a reexamination of the merits of the Authority's ULP determination. I. The Puerto Rico National Guard committed unfair labor practices by repudiating a Memorandum of Understanding providing for the establishment of a compressed work schedule The Guard does not dispute that it entered into a binding agreement with the union to establish a CWS for a 6-month period to begin in March 1997. The Guard also does not dispute that it did not implement the CWS. The Guard's only contention regarding the merits of the Authority's ULP determination is that it "did not repudiate the MOU" because the Guard "was simply unable to conduct the kind of meaningful trial period that the MOU contemplated." Brief (Br.) at 13. This contention, that compliance with the MOU was "futile" or "impossible," is not within the Court's jurisdiction to consider, and in any event is unfounded and should be rejected.[4] A. This Court is without jurisdiction to consider the Guard's defense to the ULPs 1. This Court is without jurisdiction to consider any objection not made to the Authority, absent extraordinary circumstances It is undisputed that the Guard failed to raise any objections to the decision of the ALJ with the Authority, either through exceptions or through a request for reconsideration of the Authority's decision and order. As explained by the Authority in its Application for Summary Enforcement JA 179-81, section 7123(c) of the Statute provides, as here pertinent, that "[n]o objection that has not been urged before the Authority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances." 5 U.S.C. § 7123(c). In EEOC v. FLRA, 476 U.S. 19, 23 (1986) (EEOC), the Supreme Court explained that the purpose of this provision is to ensure "that the FLRA shall pass upon issues arising under the [Statute], thereby bringing its expertise to bear on the resolution of those issues." Section 7123(c)'s language "is virtually identical to that found in § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e) [(NLRA)], which provides that '[n]o objection that has not been urged before the [NLRB] . . . shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.'" EEOC, 476 U.S. at 23; see also NLRB v FLRA, 2 F.3d. 1190, 1196 (D.C. Cir. 1993) (noting applicability of NLRB precedent to interpretation of section 7123(c)); Georgia State Chapter, Ass'n of Civilian Technicians v. FLRA, 184 F.3d 889, 891 (D.C. Cir. 1999) (applying NLRB precedent in discussing section 7123(c)). The Supreme Court has interpreted section 10(e) to mean that a court of appeals is "without jurisdiction to consider" an issue not raised before the NLRB if the failure to do so is not excused by extraordinary circumstances. EEOC, 476 U.S. at 23; see also Union de la Construccion de Concreto y Equipo Pesado v. NLRB, 10 F.3d 14, 16 (1st Cir. 1993) (Court may not review determinations of ALJ not excepted to before the Board); NLRB v. Union Carbide Caribe, Inc., 423 F.2d 231, 235 (1st Cir. 1970) (parties may not raise issues before appellate court not presented to the Board, absent extraordinary circumstances). [5] Both the Authority and the NLRB have given specific effect to the general principles in ULP cases by providing that where a party fails to file exceptions to an ALJ decision, all objections and exceptions to the rulings and decisions of the ALJ shall be deemed waived for all purposes. See 5 C.F.R. § 2423.41 (Authority); 29 C.F.R. § 101.12(b) (NLRB).[6] Recognizing the validity of these regulations, this Court has expressly held that it "lack[s] jurisdiction to entertain" an objection to an ALJ's recommendation that was not excepted to before the Board. Local Union No. 25, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen and Helpers of Am. v. NLRB, 831 F.2d 1149, 1155 (1st Cir. 1987); see also NLRB v. Izzi, 343 F.2d 753, 754-55 (1st Cir. 1965) (summary enforcement of NLRB order appropriate where no exceptions to ALJ decision were filed). Similarly, the Supreme Court and numerous courts of appeals have also found that, unless excused by "extraordinary circumstances," a party who fails to file an exception to an ALJ decision is jurisdictionally barred from raising that objection in proceedings before a court of appeals. See Detroit Edison Co. v. NLRB, 440 U.S. 301, 311 n.10 (1979); see also NLRB v. Howard Immel, Inc., 102 F.3d 948, 951 (7th Cir. 1996); KBI Security Serv., Inc. v. NLRB, 91 F.3d 291, 294 (2d Cir. 1996) (KBI Security); NLRB v. Tri-State Warehouse & Distributing, Inc., 677 F.2d 31, 31-32 (6th Cir. 1982) (summary enforcement of NLRB order appropriate in light of absence of exceptions). Accordingly, this Court is without jurisdiction to consider the Guard's "impossibility" defense to the Authority's ULP determination, unless the Guard's failure to present that objection to the Authority is excused by extraordinary circumstances. As shown immediately below, however, no such extraordinary circumstances exist here. 2. Neither "extraordinary circumstances" nor any other factor permits the Guard to assert before this Court its "impossibility" defense to the ULPs The Guard does not dispute that it failed to file exceptions to the ALJ's decision and recommended order and that it never requested reconsideration of the Authority's order. Moreover, neither "extraordinary circumstances" nor any other factor exists that would permit the Court to consider the Guard's "impossibility" arguments, based on circumstances that existed in March 1997, as a defense to the ULPs with which the Guard was charged.[7] a. Pursuing the "impossibility" defense to the ULPs was not futile The Guard errs insofar as it argues (Br. 26-28) that it should be excused from filing exceptions because the "futility" exception to section 7123(c)'s bar applies. For support, the Guard cites FLRA v. Department of Justice, 137 F.3d 683, 687-88 (2d Cir. 1998), vacated 119 S. Ct. 2387 (1999);[8] and NLRB v. FLRA, 2 F.3d at 1196. In that regard, the Second Circuit has held that the "extraordinary circumstances" exception to section 7123(c) excuses a litigant from urging an objection before the Authority when the Authority's position on a matter is "deeply rooted and well- documented." Overseas Educ. Ass'n, Inc. v. FLRA, 961 F.2d 36, 38 (2d Cir. 1992). However, the "futility" exception to the administrative exhaustion requirement is disfavored by many courts. As the Supreme Court has stated: [O]rderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts. It is urged in this case that the [Agency] had a predetermined policy on this subject which would have required it to overrule the objection if made. While this may well be true . . . . [r]epetition of the objection in [like cases] might lead to a change of policy. . . . Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice. United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952); see also Washington Ass'n for Television & Children v. FCC, 712 F.2d 677, 682 n.9 (D.C. Cir. 1983) ("[f]utility should not lightly bepresumed."); Van Dorn Plastic Machinery Co. v. NLRB, 881 F.2d 302, 306 (6th Cir. 1989) (litigant not excused from exhaustion requirements of section 10(e) of the NLRA simply because the NLRB was unlikely to have reacted favorably). Regardless, even if there are circumstances where "futility," as applied by the Second Circuit, excuses the failure of a party to raise a matter before the Authority, there is no basis on which to excuse the Guard's failure to file exceptions in this case. As noted above, pursuing a matter before the administrative agency is "futile" only where the agency's position is so "deeply-rooted" that it would be "hopeless" for a party to challenge "so formidable a wall of precedent." OEA, 961 F.2d at 38. However, the ALJ's decision in this case does not turn on any deeply rooted legal precedent. Rather, the decision in the instant case was highly fact specific, depending on the specific provisions of the MOU, and the facts and circumstances at Muniz AFB in March 1997. There is thus no support for the proposition that it would have been "futile" for the Guard to pursue its "impossibility" defense by filing exceptions to the findings of the ALJ with the Authority. Accordingly, "futility" does not constitute an extraordinary circumstance within the meaning of section 7123(c) excusing the Guard's failure to file exceptions to the ALJ's decision in this case. b. The Court's "equitable authority" cannot override section 7123(c)'s jurisdictional bar to further challenges to the Authority's ULP determination To the extent that the Guard argues (Br. 23-28) that the Court may exercise its "equitable authority" to override the jurisdictional bar raised by section 7123(c), the Guard's argument is unfounded and would render the Statute's exhaustion requirements meaningless . As noted below in section II.A., the Court may employ its "equitable authority" to consider circumstances bearing on the appropriateness of enforcing the Authority's order in full, notwithstanding the fact that the Guard is adjudged to have committed ULPs. This does not imply, however, that the Court may also consider objections to the Authority's underlying ULP determination that the Guard abandoned in proceedings before the Authority. Pursuant to section 7123(c) and the Authority's regulations, those objections, based on circumstances that allegedly existed at the time the Guard refused to implement the MOU in March 1997, should have been raised before the Authority in exceptions to the ALJ's decision if the Guard wished to preserve them as bases upon which to argue on judicial review, as it does, "that the Guard did not 'repudiat[e] the entire MOU' as the ALJ found." Br. 22. Taken to its logical end, the Guard's argument would permit a court of appeals to override the jurisdictional constraints of section 7123(c) whenever it believed it was "equitable" to do so, a result without a basis in the Statute. See NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 322 (1961) (courts authority to modify NLRB orders does not override the exhaustion requirements of section 10(e)of the NLRA). 3. The Guard's communications during the compliance phase of this case did not preserve the Guard's "impossibility" defense as an issue for judicial review Seeking a different path around section 7123(c)'s jurisdictional bar, the Guard also mistakenly contends (Br. 28) that, in effect, the Authority was presented with the Guard's impossibility argument. On February 5, 1999, the Guard responded to inquiries from the Authority's Boston Regional Office concerning compliance, contending that compliance with the MOU, and in turn the Authority's order, was impossible. According to the Guard, this letter presented the Authority with "an opportunity to pass on the [impossibility] defense in the same way it could have if the Guard had filed exceptions to the ALJ's decision." (Br. 28). The Guard's argument is groundless. A letter to a regional employee in compliance proceedings does not constitute presenting the matter before the Authority for adjudication. Cf. NLRB v. Dominick's Finer Foods, Inc., 28 F.3d 678, 685-86 (7th Cir. 1994) (raising matters to agents of the board, including hearing officers and compliance staff, is insufficient to preserve issue for review). Matters must be presented to the Authority at the proper time and in accordance with its prescribed practices. Cf. 28 F.3d at 685. The Authority's regulations make it clear that in order to preserve objections to an ALJ's decision, exceptions must be filed pursuant to those regulations. See 5 C.F.R. § 2423.41. The Guard argues in the alternative (Br. 28 n.13) that, even if the Regional Office's failure to respond positively to the February 5 letter did not constitute presentation to the Authority of the "impossibility" argument, it nonetheless is evidence that seeking formal reconsideration of the Authority's decision would have been "futile" (see section I.A.2.a., supra).[9] However, this argument is also meritless. In the first place, as noted in the preceding paragraph, the letter to the Regional Office did not place the "impossibility" argument before the Authority and, therefore, the Regional Office's failure to respond cannot constitute evidence of how the Authority would have reacted to a request for reconsideration based on that argument. Secondly, even if the Regional Office's lack of response was somehow indicative of the Authority's position in the absence of exceptions, that does not establish that it would have been futile to file a formal request for reconsideration. As noted above, futility is available as an "extraordinary circumstance" only where there exists a formidable wall of deeply- rooted precedent and no such wall exists in this case. 4. Judicial precedent cited by the Guard is inapposite Finally, two cases cited by the Guard are irrelevant to the section 7123(c) issue in this case. In FLRA v. United States Dep't of Commerce, 962 F.2d 1055 (D.C. Cir. 1992) (Commerce) (cited at Br. 24 n.8), the D.C. Circuit ruled that it had jurisdiction in an enforcement proceeding to consider the merits arguments of the agency, notwithstanding the fact that the agency did not timely petition for judicial review pursuant to 5 U.S.C. § 7123(a). See 962 F.2d at 1059. The procedural circumstances of the Commerce case differ from this case and render Commerce inapplicable. The jurisdictional issue in Commerce concerned the timeliness of the agency's arguments to the court. Unlike the instant case, in Commerce the agency filed exceptions with the Authority, and the Authority had considered all the arguments the agency was pressing before the court. See Commerce, 962 F.2d at 1057. Thus, the only jurisdictional consideration before the D.C. Circuit was whether the 60-day time limit for filing a petition for review in section 7123(a) barred the agency from arguing its position on the merits in a subsequent Authority enforcement proceeding filed under section 7123(b). See id. at 1058. The Guard also cites (Br.27-28) FLRA v. United States Dep't of Justice, 994 F.2d 868, 873 (D.C. Cir 1993) (Justice), for the proposition that the "court is not jurisdictionally barred from considering certain agency arguments that 'c[ould] not be raised at the time of the entry of the order.'" However, the type of arguments that court found could be raised inl Department of Justice are distinct from what the Guard is asserting here. In Justice, the agency employer had been found to have committed ULPs and was ordered to bargain over "the impact and implementation" of a worksite relocation. During the ensuing negotiations the agency refused to entertain a specific union proposal. The issue in the subsequent enforcement proceeding was whether the union's proposal was within the scope of the Authority's limited bargaining order. 994 F.2d at 870-71. The court rejected the Authority's jurisdictional argument that the matter had not been previously raised, noting that the agency could not have known when the Authority issued its bargaining order whether the union's proposal made in the ensuing negotiations would come within the order's terms. 994 F.2d at 873. No such issue is present here. The Authority's order is unambiguous and it is not contested that the order requires implementation of the CWS for a 6-month period. In sum on this point, well-established precedent supports the conclusion that this Court is without jurisdiction to consider the Guard's defense to the underlying ULPs.[10] Accordingly, the Court should affirm, on this ground alone, the Authority's finding that the Guard committed ULPs by repudiating the MOU. B. Even if the Court considers the Guard's "impossibility" defense, the Court should uphold the Authority's decision The ALJ's determination that the Guard committed ULPs by repudiating the MOU is reasonable and supported by substantial evidence. The Guard does not dispute that the MOU was a binding collective bargaining agreement and that the Guard did not implement the CWS provided for in the MOU. Rather, the Guard's defense is couched in terms of the "impossibility" of implementing the CWS on schedule in March 1997 because in the circumstances obtaining at that time, "the trial period would become meaningless." Br. 21. The Guard explains that the Guard's failure of "a readiness inspection in March 1997 . . . directly led to the loss of its then-current workload." Id. Consequently, the Guard states, "the six-month trial period would have had a workload substantially out of kilter with the workload that existed on the base during the . . . 'baseline' period." Id. As discussed below, the Guard's "impossibility" defense is defective for two reasons. First, the premise on which it is based -- that the Guard could anticipate in March 1997 that its workload during the 6-month CWS period would be "out of kilter" with the baseline workload -- is not supported by the record. Second, even if it were assumed that some workload differences could be anticipated, that alone would neither have been inconsistent with the MOU, nor sufficient to render the 6-month CWS period "meaningless." 1. The Guard had no basis in March 1997 for anticipating workload differences sufficient to render implementation of the MOU "impossible" On the subject of workload differences, the record does not reflect any basis upon which the Guard could have anticipated workload differences during the 6-month CWS period (which should have begun in March 1997) that would render it "impossible" to implement the MOU. Indeed, the record indicates little more than that a change in the aircraft assigned to Muniz AFB could be expected at some indefinite time in the future. See, e.g., JA 44-45 (indicating that as of the date of the hearing in November 1997, Guard personnel still did not have any firm indication as to when the type of aircraft assigned was going to change). Conversely, the record is devoid of evidence that the Guard possessed any knowledge in March 1997 that significant workload changes were imminent. Consistent with the absence of evidence in the record of any imminent workload changes is that fact that none actually occurred. Specifically, as the ALJ found in rejecting the Guard's "impossibility" defense (JA 160), "by the time the MOU would have expired by its own terms, there had been no change in the airplanes assigned" to the Base. Accord JA 44-45. See also the Guard's statements at the hearing (JA 23) and in its posthearing brief (JA 146) indicating that the type of aircraft that was assigned to the Guard had not been changed immediately upon the Guard's failure of the readiness inspection in March 1997, but instead was only going to be changed "by the end of Fiscal Year 1998," a year after the MOU's 6-month CWS period was due to expire. Thus, based on the record, the Guard had no reason to expect that it would be "impossible" to make a "meaningful" comparison of the data from the 6-month period during which a CWS should have been implemented with the baseline data from the prior year. The Guard's assertions to the contrary before this Court are therefore without merit and should be rejected if the Court reaches the issue. 2. Even if workload differences could have been anticipated, such differences would not have made it "impossible" to implement the MOU Further, even if workload differences could have been anticipated, they would not have made the 6-month CWS period required by the MOU "meaningless," nor blocked in any other way implementation of the MOU. The Guard's argument that anticipated changes in workload affected its ability to implement the MOU constitutes nothing but an attempt to unilaterally modify the terms of an agreement it wishes to disavow. In the first instance, and as the ALJ found (JA 160), there was nothing in the express terms of the MOU that permitted the Guard unilaterally to determine not to implement the CWS short of a determination that the MOU affected the Guard's military mission, a basis not asserted by the Guard.[11] In addition, there is no foundation in the record for finding "an unarticulated premise that [the Guard] was going to complete successfully an [ORI] and the same type of aircraft and operation was going to remain unchanged after March 1997." JA 145. Two union representatives who participated in the negotiations of the MOU testified that there was no such understanding. JA 34, 44. The Guard's only witness on this issue was not a party to the negotiations and had no firsthand knowledge as to any tacit understandings that may have been reached. JA 56-57. The Guard's argument that it was justified in not implementing the MOU in March 1997 because the comparisons called for in the MOU would be "meaningless" has no merit. The agreement simply states, without further qualification, that "indicators" such as productivity, absenteeism, and morale during the 6-month CWS period will be compared with those factors during "the last year." JA 156. Although changes in operations between the test period and the base period might affect how such a comparison was carried out, nothing in the MOU permits one party to unilaterally repudiate the MOU because circumstances changed to some degree between the baseline year and the 6-month CWS period. To the contrary, the MOU calls for the parties to "keep in constant communication in order to fine tune the process as it evolves." JA 155, 7. How to deal with unforeseen changes such as those at issue here would appear to be just the sort of things the MOU envisioned being resolved bilaterally, rather than to lead to the unilateral abrogation of the parties's arduously negotiated MOU. For all of these reasons, the Court should affirm the Authority's determination that the Guard committed ULPs in this case. II. Circumstances occurring after the Authority issued its order have not rendered enforcement of the Authority's order inappropriate A. Implementation of the MOU is neither "impossible" nor meaningless Contrary to the position taken by the Guard, implementation of the 6-month CWS period would not be inappropriate under the circumstances the Guard alleges have occurred at Muniz AFB. In this connection, the Authority recognizes this Court's power to modify an Authority order by declining to enforce portions of that order where circumstances at the time enforcement is sought render enforcement inappropriate, even though the underlying ULP determination is undisturbed. See Department of Health and Human Servs. v. FLRA, 976 F.2d 1409, 1416 (D.C. Cir. 1992) (citing NLRB v. Maywood Plant of Grede Plastics, 628 F.2d 1, 7 (D.C. Cir. 1980) (Grede Plastics)). However, the Guard has not demonstrated that implementation of any portion of the Authority's order in this case would be impossible, meaningless, or otherwise inequitable. The circumstances alleged by the Guard to render enforcement inequitable are, to a large extent, a continuation of those circumstances presented to the ALJ as part of the defense to the underlying ULP. For example, the Guard continues to assert that uncertainty with respect to completion of the conversion to new aircraft prevents meaningful implementation of the MOU. As discussed above (section I.A.), because the Guard failed to except to the ALJ's adverse ruling concerning those matters, those contentions, dealing with circumstances in March 1997, are "waived for all purposes." 5 C.F.R. § 2423.41. In addition, and also as shown above (section I.B.), none of the circumstances cited by the Guard to the ALJ, in fact, made implementation of the MOU impossible or meaningless. Similarly, with respect to those circumstances that the Guard claims (Br. 24-25) developed after the issuance of the Authority's order, including the absence of aircraft, a reduced workload, and the absence on training of some maintenance personnel, the Guard does not demonstrate that they render implementation of the CWS impossible or meaningless. None of these factors prohibit the Guard from establishing a CWS. There is nothing in the record that indicates that duties that were assigned to the maintenance personnel during the MOU's baseline period could not be performed on a CWS. Further, the Guard's impossibility argument with respect to these new circumstances is essentially the same as that considered and rejected by the ALJ, namely that implementation of the MOU requires that the Guard's operations remain essentially identical to those in effect at the time the MOU was executed. As noted above, to the extent changes in operations affect the comparisons between the 6-month CWS period and the "baseline," those changes may impact how the data is evaluated. However, it has not been demonstrated that such comparisons, taking into account changed circumstances, would be "meaningless."[12] Accordingly, because it has not been shown that the Guard could not implement the terms of the MOU as required by the Authority's order in a meaningful fashion, the Court has no reason to exercise its equitable discretion not to enforce that portion of the Authority's order. B. The circumstances occurring subsequent to the Authority's order do not constitute "extraordinary circumstances" The circumstances that the Guard alleges occurred subsequent to the Authority's order in May 1998 also do not constitute "extraordinary circumstances" such as would permit them to be raised as an objection to the Authority's underlying ULP determination, and thus to this Court's enforcement of the resulting order. Apart from the irrelevance of such post-May 1998 changes to the Guard's refusal in March 1997 to implement the MOU, these later-alleged changes in circumstances do not fit within any recognized exception to the jurisdictional bar raised by section 7123(c) of the Statute. See section I.A., supra. In addition, as with the matters asserted by the Guard as part of its "impossibility" defense, the Guard never sought to raise these post-May 1998 circumstances with the Authority through a motion for reconsideration. In this connection, the Guard is wrong when it contends (Br. 26 n.10) that because the time limit for seeking reconsideration had expired, the Guard's position based on post-May 1998 conditions "could not have been brought to the Authority's attention through a motion for reconsideration." The Authority has in appropriate circumstances waived the time limits for filing motions for reconsideration. E.g., Department of Veterans Affairs, Veterans Affairs Medical Ctr., Jackson, MS, 49 FLRA 171 (1994), pet. for review denied, 73 F.3d 390 (D.C. Cir. 1996). C. Precedent does not support denying the Authority's Application for Enforcement The Guard cites two cases in which a court of appeals has declined to enforce all or part of an NLRB order on the ground that circumstances at the time enforcement was sought would be inequitable. Neither of these cases, however, resembles the instant case. In Grede Plastics, subsequent to the NLRB's order, Grede Plastics sold its plant to another company. 628 F.2d at 7. The successor company rehired striking employees, recognized the union, and bargained a new collective bargaining agreement. Id. The court affirmed the NLRB's finding of ULPs on Grede's part, and enforced a cease and desist order and the notice requirement. Id. However, the court found it would be senseless to enforce a bargaining order which the successor had already effectively implemented and which Grede had no more authority to accomplish. Id. In the instant case, in contrast, the Guard has steadfastly refused to take any actions to implement any aspect of the Authority's remedial order. NLRB v. Greensboro News & Record, Inc., 843 F.2d 795 (4th Cir. 1988) (Greensboro News), is also distinguishable from the instant case. There the company had substantially complied with an NLRB order to cease and desist from ULPs and to take affirmative actions, including reinstating the union president. 843 F.2d at 796-797. Approximately three years later, the union alleged that the company was engaging in similar conduct and filed charges to that effect with the NLRB. 843 F.2d at 797. Although the new charges were pending, the NLRB then sought enforcement of its original order, claiming that the later conduct was violative of that order. Id. The court denied enforcement, noting the time between the order and the enforcement action, and the lack of identity between the events which were the subject of the original ULP and those which triggered the more current dispute. 843 F.2d at 798-99. The court required that the NLRB initiate new proceedings based on the facts and circumstances of the later alleged misconduct. 843 F.2d at 799. The situation presented in Greensboro News is readily distinguishable from the instant case, where no delay in the initiation of enforcement proceedings has occurred, and the Authority's application is premised on the employer conduct which engendered the underlying ULP proceeding. In both Grede Plastics and Greensboro News, although the courts exercised their equitable discretion to decline enforcement of parts of NLRB orders, in neither case did an offending employer escape liability for established or conceded ULPs. In Grede, the court affirmed the finding of ULPs, and enforced some, but not all portions of the order. See also KBI Security, 91 F.3d at 294-295 (same). In Greensboro News, although current enforcement was denied, the employer had complied with an earlier order, and the more current alleged misconduct was the subject of proceedings before the NLRB. In contrast, denying enforcement in the instant case would relieve the Guard of any liability for its complete repudiation of the MOU. CONCLUSION The Authority's order should be enforced. Respectfully submitted, DAVID M. SMITH Solicitor WILLIAM R. TOBEY Deputy Solicitor JAMES F. BLANDFORD Attorney Federal Labor Relations Authority 607 14th Street, N.W. Washington, D.C. 20424 (202) 482-6620 January 2000 CERTIFICATION PURSUANT TO FRAP RULE 32 Pursuant to Federal Rule of Appellate Procedure 32, I certify that the attached brief is written in a proportionally-spaced 14-point font and contains 8583 words. January 19, 2000 __________________________ James F. Blandford Attorney IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT _______________________________ FEDERAL LABOR RELATIONS AUTHORITY, Petitioner v. No. 99-1293 PUERTO RICO NATIONAL GUARD, PUERTO RICO AIR NATIONAL GUARD, SAN JUAN, PUERTO RICO, Respondent _______________________________ CERTIFICATE OF SERVICE I certify that copies of the Brief For The Federal Labor Relations Authority and one copy of the brief in electronic format, have been mailed by first- class mail upon the following counsel: William Kanter, Esq. Howard S. Scher, Esq. Civil Division, Room 9124 Department of Justice 601 D Street, N.W. Washington, D.C. 20530-0001 I certify that copies of the Brief For The Federal Labor Relations Authority and one copy of the brief in electronic format, have been mailed by first- class mail to the Clerk of the First Circuit. Thelma Brown Paralegal Specialist January 19, 2000 STATUTORY AND REGULATORY ADDENDUM TABLE OF CONTENTS 1. 5 U.S.C. § 7105(a)(1), (2) A-1 2. 5 U.S.C. § 7105(a)(2)(G), (I) A-1 3. 5 U.S.C. § 7116(a)(1), (5) A-2 4. 5 U.S.C. § 7118 A-3 5. 5 U.S.C. § 7123(a), (b), (c) A-5 6. 5 C.F.R. § 2423.41 A-7 § 7105. Powers and duties of the Authority (a)(1) The Authority shall provide leadership in establishing policies and guidance relating to matters under this chapter, and, except as otherwise provided, shall be responsible for carrying out the purpose of this chapter. (2) The Authority shall, to the extent provided in this chapter and in accordance with regulations prescribed by the Authority- * * * * * * * * * * (G) conduct hearings and resolve complaints of unfair labor practices under section 7118 of this title; * * * * * * * * * * (I) take such other actions as are necessary and appropriate to effectively administer the provisions of this chapter. * * * * * * * * * * § 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; * * * * * * * * * * (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; * * * * * * * * * * § 7118. Prevention of unfair labor practices (a)(1) If any agency or labor organization is charged by any person with having engaged in or engaging in an unfair labor practice, the General Counsel shall investigate the charge and may issue and cause to be served upon the agency or labor organization a complaint. In any case in which the General Counsel does not issue a complaint because the charge fails to state an unfair labor practice, the General Counsel shall provide the person making the charge a written statement of the reasons for not issuing a complaint. (2) Any complaint under paragraph (1) of this subsection shall contain a notice- (A) of the charge; (B) that a hearing will be held before the Authority (or any member thereof or before an individual employed by the authority and designated for such purpose); and (C) of the time and place fixed for the hearing. (3) The labor organization or agency involved shall have the right to file an answer to the original and any amended complaint and to appear in person or otherwise and give testimony at the time and place fixed in the complaint for the hearing. (4)(A) Except as provided in subparagraph (B) of this paragraph, no complaint shall be issued on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority. (B) If the General Counsel determines that the person filing any charge was prevented from filing the charge during the 6-month period referred to in subparagraph (A) of this paragraph by reason of- (i) any failure of the agency or labor organization against which the charge is made to perform a duty owed to the person, or (ii) any concealment which prevented discovery of the alleged unfair labor practice during the 6-month period, the General Counsel may issue a complaint based on the charge if the charge was filed during the 6-month period beginning on the day of the discovery by the person of the alleged unfair labor practice. (5) The General Counsel may prescribe regulations providing for informal methods by which the alleged unfair labor practice may be resolved prior to the issuance of a complaint. (6) The Authority (or any member thereof or any individual employed by the Authority and designated for such purpose) shall conduct a hearing on the complaint not earlier than 5 days after the date on which the complaint is served. In the discretion of the individual or individuals conducting the hearing, any person involved may be allowed to intervene in the hearing and to present testimony. Any such hearing shall, to the extent practicable, be conducted in accordance with the provisions of subchapter II of chapter 5 of this title, except that the parties shall not be bound by rules of evidence, whether statutory, common law, or adopted by a court. A transcript shall be kept of the hearing. After such a hearing the Authority, in its discretion, may upon notice receive further evidence or hear argument. (7) If the Authority (or any member thereof or any individual employed by the Authority and designated for such purpose) determines after any hearing on a complaint under paragraph (5) of this subsection that the preponderance of the evidence received demonstrates that the agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice, then the individual or individuals conducting the hearing shall state in writing their findings of fact and shall issue and cause to be served on the agency or labor organization an order- (A) to cease and desist from any such unfair labor practice in which the agency or labor organization is engaged; (B) requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect; (C) requiring reinstatement of an employee with backpay in accordance with section 5596 of this title; or (D) including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action as will carry out the purpose of this chapter. If any such order requires reinstatement of any employee with backpay, backpay may be required of the agency (as provided in section 5596 of this title) or of the labor organization, as the case may be, which is found to have engaged in the unfair labor practice involved. (8) If the individual or individuals conducting the hearing determine that the preponderance of the evidence received fails to demonstrate that the agency or labor organization named in the complaint has engaged in or is engaging in an unfair labor practice, the individual or individuals shall state in writing their findings of fact and shall issue an order dismissing the complaint. (b) In connection with any matter before the Authority in any proceeding under this section, the Authority may request, in accordance with the provisions of section 7105(i) of this title, from the Director of the Office of Personnel Management an advisory opinion concerning the proper interpretation of rules, regulations, or other policy directives issued by the Office of Personnel Management. § 7123. Judicial review; enforcement (a) Any person aggrieved by any final order of the Authority other than an order under- (1) section 7122 of this title (involving an award by an arbitrator), unless the order involves an unfair labor practice under section 7118 of this title, or (2) section 7112 of this title (involving an appropriate unit determination), may, during the 60-day period beginning on the date on which the order was issued, institute an action for judicial review of the Authority's order in the United States court of appeals in the circuit in which the person resides or transacts business or in the United States Court of Appeals for the District of Columbia. (b) The Authority may petition any appropriate United States court of appeals for the enforcement of any order of the Authority and for appropriate temporary relief or restraining order. (c) Upon the filing of a petition under subsection (a) of this section for judicial review or under subsection (b) of this section for enforcement, the Authority shall file in the court the record in the proceedings, as provided in section 2112 of title 28. Upon the filing of the petition, the court shall cause notice thereof to be served to the parties involved, and thereupon shall have jurisdiction of the proceeding and of the question determined therein and may grant any temporary relief (including a temporary restraining order) it considers just and proper, and may make and enter a decree affirming and enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the Authority. The filing of a petition under subsection (a) or (b) of this section shall not operate as a stay of the Authority's order unless the court specifically orders the stay. Review of the Authority's order shall be on the record in accordance with section 706 of this title. No objection that has not been urged before the Authority, or its designee, shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances. The findings of the Authority with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any person applies to the court for leave to adduce additional evidence and shows to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for the failure to adduce the evidence in the hearing before the Authority, or its designee, the court may order the additional evidence to be taken before the Authority, or its designee, and to be made a part of the record. The Authority may modify its findings as to the facts, or make new findings by reason of additional evidence so taken and filed. The Authority shall file its modified or new findings, which, with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. The Authority shall file its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with the court, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the judgment and decree shall be subject to review by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of title 28. * * * * * * * * * * [1] Pertinent statutory and regulatory provisions are set forth in Addendum A to this brief. [2] "Alternative Work Schedules" is the collective term for a variety of schedules other than a fixed tour of five 8-hour days per week. Such schedules may include flexible hours, where an employee may vary his or her arrival and departure times, as well as compressed work schedules (CWS), which normally involve a workweek of four 10-hour days or a 2-week schedule of eight 9-hour days and one 8-hour day. See Illinois National Guard v. FLRA, 854 F.2d 1396, 1398-99 (D.C. Cir. 1988). [3] Testimony at the hearing suggested two reasons for the Guard's refusal to implement. One union representative was told that the CWS was not going to be implemented because the General "just didn't like it." JA 35. Another union representative was told that the reason was the failure of the ORI. JA 43. [4] The ALJ characterized the Guard's argument as one involving "impossibility" JA 160 as did the Guard in its answer to the Authority's Application for Enforcement. See JA 189. In its brief, however, the Guard curiously refers to this "impossibility" as the "futility" of implementing the MOU. This unhelpful shift in terminology causes confusion because the Guard also uses the term "futility" in its brief in the context of administrative exhaustion (e.g., Br. 28 and n. 13), where it argues that its failure to raise matters before the Authority was excusable because pursuit of those issues would have been "futile." To avoid confusion concerning the sense in which the term "futility" is being used, the Authority will adopt the Guard's characterization in proceedings before the ALJ and in its answer, by referring to the Guard's defense to the ULP as one involving "impossibility." [5] The Guard acknowledges the relevance of precedent developed under the NLRA with respect to judicial review and enforcement of Authority decisions and orders (Br. at 16 n.3). [6] Congress intended that ULP complaints would be processed by the Authority "in a manner essentially identical to National Labor Relations Board practices in the private sector." S. Rep. No. 95-969 at 106 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2828. Consistent with that intent the Authority has prescribed procedures substantially identical to those of the NLRB. Compare 5 C.F.R. §§ 2423.30-2423.41 with 29 C.F.R. §§ 101.10, 101.12. [7] The separate issue of whether "extraordinary circumstances" encompasses the Guard's objections to the Authority's remedial order, based on circumstances that developed subsequent to the Authority's decision, is discussed below in section II.A. [8] The viability of FLRA v.Department of Justice as precedent is dubious. The Authority sought certiorari on both the administrative exhaustion issue and on the merits question in the case. See 67 U.S.L.W. 3344. The Supreme Court in a memorandum order granted certiorari, vacated the judgment, and remanded the case for further consideration. 119 S.Ct. at 2387. On remand, the court enforced the Authority's order without revisiting the exhaustion issue. [9] Although the Guard does not characterize this as an argument in the alternative, it clearly is such. If the Guard is correct that the February 5, 1999, letter constituted presenting the Authority with an opportunity to pass on the impossibility defense, then administrative exhaustion is no longer an issue and there is no need to demonstrate "futility" or any other extraordinary circumstance. [10] The Authority recognizes that most of this precedent was developed under the NLRA rather than the Statute. Nevertheless, the Guard's position before this Court should be rejected because it is at odds with this NLRA precedent and if adopted, could effectively overrule or significantly modify it. See NLRB v. FLRA , 2 F.3d at 1199 (Buckley, J., dissenting) (noting that the court's decision expanding the concept of extraordinary circumstances under 5 U.S.C. § 7123(c) could be applied to cases arising under section 10(e) of the NLRA). [11] The ALJ's decision rejecting the Guard's position was based on the ALJ's interpretation of the MOU. The Authority has the power to interpret collective bargaining agreements when necessary to resolve a ULP claim. See Internal Revenue Serv., Washington, D.C., 47 FLRA 1091, 1105 (1993) (citing NLRB v. C&C; Plywood, 385 U.S. 421, 428 (1967)). [12] Indeed, with respect to some of the indicators such as morale and absenteeism, the comparisons may not be affected at all.