FLRA v. PR National Guard ( 2000 )

[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1293
FEDERAL LABOR RELATIONS AUTHORITY,
Petitioner,
v.
PUERTO RICO NATIONAL GUARD, ETC.,
Respondent.
PETITION FOR ENFORCEMENT OF A FINAL ORDER
OF THE FEDERAL LABOR RELATIONS AUTHORITY
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
James F. Blandford, Attorney, with whom David M. Smith,
Solicitor, and William R. Tobey, Deputy Solicitor, were on
brief, for petitioner.
Howard S. Scher, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, with whom David W. Ogden,
Acting Assistant Attorney General, Civil Division, and William
Kanter, Attorney, Appellate Staff, were on brief, for
respondent.
May 25, 2000
Per Curiam. This proceeding began when the American
Federation of Government Employees, Local 3936 (the union) filed
an unfair labor practice charge against the respondent under 5
U.S.C. § 7116(a)(1), (5). In substance, the union accused the
respondent of reneging on a memorandum of understanding that
contemplated the inauguration of a flex-time work schedule, at
least for a six-month trial period. An administrative law judge
(ALJ) determined that the respondent had repudiated the
agreement without cause and had thereby violated the statute.
The respondent took no exceptions to this determination.
Consequently, the Federal Labor Relations Authority (the
Authority), acting pursuant to 5 C.F.R. § 2423.41(a), accepted
the ALJ's recommendation and issued a final decision and order
on May 15, 1998.
Several months went by, during which the respondent
ignored the remedial order. When pressed, it claimed that
changed circumstances rendered compliance impossible (or, at
least, impracticable). Unmoved, the Authority repaired to this
court, seeking enforcement of the order. On the eve of oral
argument, however, the respondent began filing a series of
motions indicating that circumstances again had changed (this
time for the better), and that it was now willing and able to
comply with the Authority's remedial order. The respondent
-3-
suggested, on the basis of this assurance, that we dismiss the
petition as moot. The Authority objected.
We heard oral argument on May 8, 2000. The respondent
urged us to decline enforcement as unnecessary and to dismiss
the petition as moot. The Authority, citing the long delay and
the tortuous history of the proposed flex-time experiment,
implored us to enforce the order.
We grant the petition for enforcement. In doing so,
we take no view of the merits of the respondent's impossibility
defense. Assuming, arguendo, as the respondent has asserted,
that altered circumstances rendered implementation of the
remedial order impossible for some period of time, the
respondent nonetheless concedes that the circumstances have
changed again and that no impediment now exists to compliance
with the terms of the remedial order. That being so, we believe
that the Authority is entitled to an enforcement decree. Cf.
NLRB v. Raytheon Co., 398 U.S. 25, 27 (1970); NLRB v. Pearl
Bookbinding Co., 517 F.2d 1108, 1114 (1st Cir. 1975). Although
we do not doubt that courts have a modicum of discretion to
withhold enforcement of orders like the order sub judice in the
interests, say, of permitting voluntary compliance, we see no
reason to invoke that seldom-used discretion here. The
Authority has satisfied all of the prerequisites for judicial
-4-
enforcement, and the entry of an enforcement decree will not
unfairly prejudice the respondent. Rather, judicial enforcement
will serve as an effective reminder to the respondent of its
continuing obligation fully and seasonably to effectuate the
terms of the Authority's remedial order.
The application for enforcement is GRANTED and the
Authority's order is ENFORCED.
-5-