U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Air Force, March Air Reserve Base, California and American Federation of Government Employees, Local 3854, AFL-CIO, SF-CA-00037, July 6, 2001, 57 FLRA No. 71.

The Authority found that the agency committed an impact-and-implementat (I&I) unfair labor practice when it didn't notify the union when it implemented a court-approved settlement agreement of a discrimination complaint. In rejecting the agency's claim that post-implementation I&I bargaining would require agencies in future cases to delay implementing court-approved settlements or court orders until bargaining is complete, FLRA noted that "the Authority has indicated in prior cases that when an agency changes conditions of employment in order to correct an unlawful practice, the agency may implement the change prior to negotiations."

A bargaining unit employee, who had filed a formal discrimination complaint alleging that the agency had discriminated against him on the basis of race and color, eventually filed a civil action in district court. Under court auspices the agency and the employee entered into a settlement agreement that provided that the employee would be promoted, paid $15,000, credited with 317 additional hours of annual leave, and provided with both on-the-job and technical training.

The union filed a ULP charge when the employer implemented the settlement agreement without notifying the union of the terms of the agreement or affording it an opportunity to bargain over appropriate arrangements and procedures related to the agreement's implementation. In the resulting ULP proceeding the ALJ found that the employer violated 5 USC § 7116(a)(1) and (5) of the Statute and recommended a prospective bargaining order relating to post-implementation issues. (The General Counsel had stipulated that a status quo ante bargaining order would not be appropriate in the circumstances of this case.)

The agency filed exceptions, all of which the Authority rejected. In rejecting the agency's contention that there was no duty to bargain over implementation of the court order, FLRA said the following:

[T]he obligation to bargain is triggered by a change in conditions of employment, regardless of an agency's reasons for effecting the change. Accordingly, whether the change results from a voluntary settlement or a court order, an agency must bargain over those changes to the extent required by law.

It also rejected the agency's claim that requiring it to bargain over implementation of the court order wasn't within the Authority's jurisdiction and interfered with judicial authority.

Requiring the Respondent to bargain over the settlement decree's impact and implementation, but not its substance, constitutes neither oversight nor review of the court proceeding. As the [ALJ] stated, the unfair labor practice proceeding "begins at the point where the court's proceeding ended." Decision at 13. For example, the settlement required the Respondent to restore 317 hours of annual leave to the complainant. However, the agreement did provide for how the restored leave would be allocated in the event of conflicts with the leave plans of other employees. There is no assertion that procedures for resolving such conflicts would not be bargainable.

Nor did the agency's claim that bargaining over implementation of the court order would have an adverse impact on the efficiency of the Federal service fare any better. In the first place, Respondent had conceded that complying with a post-implementation bargain order in this case wouldn't delay the effect of the terms of the settlement.

Second, although not faced with the issue in this case, we note that when an agency changes conditions of employment in order to correct an unlawful practice, the agency may implement the change prior to negotiations. E.g., Dep't of the Interior, United States Geological Survey, Conservation Div., Gulf of Mexico Region, Metairie, La., 9 FLRA 943, 545-546 and n. 9 (1982) (noting that an agency need not delay changing conditions of employment where the change was implemented to correct an unlawful past practice).

Finally, FLRA rejected the agency's claim this case implicated addressed in Luke AFB. "[T]he instant case," said FLRA, "deals exclusively with labor relations issues arising after a judicial resolution of an EEO dispute was implemented."

We report this case mainly because of FLRA's observations about post-implementation bargaining. In addition to the Geological Survey case cited by the Authority, the reader should also see the end of footnote 8 in INS, 55 FLRA No. 19, where FLRA, citing Geological Survey, said that "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." (Italics added.)

At any rate, implementing a court order, like correcting an unlawful practice, need not be delayed. But there is nonetheless a duty to give notice (if the change affects conditions of employment) and, upon request, to bargain on the impact and implementation of the change.