File 1: Authority's Decision in 59 FLRA No. 77
File 2: ALJ's Decision

59 FLRA No. 77

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This unfair labor practice case is before the Authority on an exception to the attached decision of the Administrative Law Judge filed by the General Counsel (GC).

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by removing stools from the work stations of bargaining unit cashiers without providing the Union advance notice and an opportunity to bargain. The Judge found that the Respondent violated the Statute as alleged in the complaint. As to the remedy, the Judge determined that status quo ante relief was not appropriate and recommended other remedies. The GC excepts to the Judge's denial of a status quo ante remedy. The Respondent did not file an opposition to the GC's exceptions.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions that the Respondent violated § 7116(a)(1) and (5) of the Statute. However, we reverse the Judge's determination that a status quo ante remedy is not warranted. We adopt the remainder of the Judge's recommended Order. [ v59 p473 ]

II.     Background and Judge's Decision

      The Respondent notified the Union that it was removing stools from the work stations of bargaining unit cashiers because a safety study indicated that the use of stools presented an ergonomic risk to the employees. When the Respondent removed the stools without bargaining, the Union filed a charge, and the GC issued a complaint alleging that the Respondent violated § 7116(a)(1) and (5) of the Statute.

      As relevant here, the Judge determined that the provision of stools at the cashier's work stations was an established past practice and that the Respondent's decision to remove the stools was substantively negotiable. See Judge's Decision at 7-9. The Judge rejected, among others, the Respondent's argument that the decision was an exercise of its right to take action in an emergency under § 7106(a)(2)(D) of the Statute. According to the Judge:

[T]here is nothing . . . to indicate that such an emergency existed. Even when construed in a light most favorable to the Respondent, the evidence suggests only that the use of stools . . . might produce adverse ergonomic effects. There is no basis for a conclusion that any employee . . . was in imminent danger of a serious injury [from use of the stools].

Id. at 9. The Judge also found that the Union did not waive its right to bargain. See id. at 8-9. Accordingly, the Judge concluded that the Respondent violated the Statute as alleged. [n1] 

      In resolving the GC's request for status quo ante relief, the Judge applied the factors set forth in Fed. Corr. Inst., 8 FLRA 604 (1982) (FCI). [n2] Balancing the FCI factors, the Judge concluded that a status quo ante remedy was not appropriate. See id. at 11. In reaching this conclusion, the Judge relied on evidence presented by the Respondent that the cashier's work stations are not designed to accommodate stools and that their presence might create a safety hazard for the cashiers. See id. According to the Judge, the "existence of possibly unsafe conditions caused by the stools would undeniably detract from the Respondent's efficiency and effectiveness." Id. As a remedy, the Judge recommended a cease and desist order, a notice posting, and an order that the Respondent bargain upon request with the Union concerning the use of stools by cashiers.

III.     GC's Exception

      The GC contends that because the Judge found that the Respondent's decision to remove the stools was substantively negotiable, he should have applied the "special circumstances" standard, rather than the FCI factors, in determining whether status quo ante relief was appropriate. GC Exception at 6-7 (citing Long Beach Naval Shipyard, Long Beach, Cal., 17 FLRA 511, 514 n.6 (1985). The GC asserts that no special circumstances exist to warrant an exception to a status quo ante remedy. In this regard, the GC claims that the Respondent did not offer into evidence the safety study it relied on for its decision to remove the stools and that the Respondent's safety concern was "speculative at best." Id. at 8.

IV.     Analysis and Conclusions

      Where an agency has an obligation to bargain over the substance of a matter, and fails to meet that obligation, the Authority will grant a status quo ante remedy in the absence of special circumstances. See Air Force Logistics Command, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 53 FLRA 1664, 1671 (1998) (Robins Air Force Base). By contrast, where an agency has an obligation to bargain over only the impact and implementation of a matter, and fails to meet that obligation, the Authority applies the factors set forth in FCI, 8 FLRA 604, to determine whether a status quo ante remedy is appropriate. See United States Dep't of Energy, W. Area Power Admin., Golden, Colo., 56 FLRA 9, 13 (2000).

      Here, the Judge specifically found that the Respondent's decision to remove the stools was substantively negotiable, see Judge's Decision at 8, and the Respondent has not excepted to this finding. Accordingly, consistent with the precedent cited above, the Judge should have applied the "special circumstances" standard, rather than the FCI factors, in determining whether status [ v59 p474 ] quo ante relief is appropriate. See Robins Air Force Base, 53 FLRA at 1671.

      Applying the "special circumstances" standard, the Respondent has not alleged that any special circumstances exist which would establish that a status quo ante remedy is unwarranted in this case. Moreover, to the extent that the Respondent's assertion that the use of stools may result in ergonomic risks to the cashiers can be construed as alleging that special circumstances preclude this remedy, the Respondent has not established these safety and health risks by record evidence. We note that the Judge relied on evidence establishing that the presence of stools "might" create a safety hazard for his determination that the Respondent's efficiency would be disrupted. Judge's Decision at 11. However, the possibility of such hazard does not rise to the level of a special circumstance. See United States Army Corps of Eng'rs, Memphis Dist., Memphis, Tenn., 53 FLRA 79, 85 (1997) (Authority rejected agency argument regarding effect of status quo ante remedy as "too vague to establish special circumstances"). In addition, as noted by the Judge, the Respondent did not offer into evidence the safety study it relied on for its decision to remove the stools, and there is no evidence concerning the extent of the impact on cashiers resulting from a return to the status quo. See id. at 6 n.9.

      Based on the foregoing, we conclude that the Respondent has not established the existence of special circumstances in this case to warrant denial of a status quo ante remedy. We emphasize that our conclusion should not be construed as suggesting that safety and health concerns can never have a role in applying the "special circumstances" standard. To the contrary, safety and health concerns may well be factors to take into account in applying this standard. We hold simply that, in this case, the Respondent has not demonstrated through record evidence that its argument with respect to the safety and health risks attendant to the cashiers' use of the stools establishes the existence of special circumstances. As such, we find that the Judge erred by denying status quo ante relief and that a return to the status quo ante is appropriate to remedy the Respondent's unfair labor practice. See Navajo Area Indian Health Serv., Winslow Serv. Unit, Winslow, Ariz., 55 FLRA 186, 189 (1999).

V.     Order

      Pursuant to § 2423.41 of our Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Defense, Defense Commissary Agency, Northeast Region, Groton, Connecticut, shall:

      1. Cease and desist from:

           (a) Removing the stools from all check stands at the New London Commissary without first completing bargaining with the National Association of Government Employees, SEIU, AFL-CIO, Local R1-100 the exclusive representative of its bargaining unit employees.

           (b) In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a) Replace all stools that were removed from all check stands at the New London Commissary on or about May 23, 2002.

           (b) Post at the New London Commissary copies of the attached notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Commissary Officer and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by any other material.

           (c) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply. [ v59 p475 ]

The Federal Labor Relations Authority has found that the United States Department of Defense, Defense Commissary Agency, Northeast Region, Groton, Connecticut, violated the Federal Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT remove the stools from all check stands at the New London Commissary without first completing bargaining with the National Association of Government Employees, SEIU, AFL-CIO, Local R1-100 the exclusive representative of its bargaining unit employees.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL replace all stools that were removed from all check stands at the New London Commissary on or about May 23, 2002.

      ________________________
(Respondent/Agency)

Dated: ___________By:_____________________ __
                (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Boston Regional Office, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: 617-424-5730.

File 1: Authority's Decision in 59 FLRA No. 77
File 2: ALJ's Decision

   The Judge denied the Respondent's motion to strike the transcript of a deposition of a Union official and sustained the Respondent's objection to certain deposition exhibits. In addition, the Judge found that the Union's charge was timely filed and that the complaint and notice of hearing were properly issued. As there are no exceptions to these determinations, or to the Judge's merits determination, we do not address them further.

   The FCI factors are: (1) whether and when notice was given to 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. See United States INS, Wash., D.C., 55 FLRA 69, 70 n.3 (1999) (citing FCI, 8 FLRA at 606).