24:0907(86)CA - Navy, Northern Division, Naval Facilities Engineering Command and NFFE Local 1430 -- 1986 FLRAdec CA



[ v24 p907 ]
24:0907(86)CA
The decision of the Authority follows:


 24 FLRA No. 86
 
 DEPARTMENT OF THE NAVY 
 NORTHERN DIVISION, NAVAL 
 FACILITIES ENGINEERING COMMAND
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL 
 EMPLOYEES, LOCAL 1430
 Charging Party
 
                                            Case No. 2-CA-1091
                                            (19 FLRA No. 86)
 
                       DECISION AND ORDER ON REMAND
 
    This case is before the Authority on remand from the U.S. Court of
 Appeals for the District of Columbia Circuit.  The Authority issued its
 original Decision and Order in the case on August 12, 1985.  The
 Authority found that the Respondent had not violated section 7116(a) and
 (5) when it unilaterally changed the functions of the Incentive Award
 Committee on which the Union had a role as an observer.  Department of
 the Navy, Northern Division, Naval Facilities Engineering Command, 19
 FLRA No. 86 (1985), rev'd and remanded sub nom., National Federation of
 Federal Employees, Local 1430 v. FLRA, No. 85-1648 (D.C. Cir. Nov. 6,
 1986).  In finding that the Respondent had not committed an unfair labor
 practice, the Authority relied on an earlier decision in National
 Treasury Employees Union and Internal Revenue Service, 14 FLRA 464
 (1984), rev'd and remanded sub nom., NTEU v. FLRA, 793 F.2d 371 (D.C.
 Cir. 1986).
 
    As indicated, the U.S. Court of Appeals for the District of Columbia
 Circuit subsequently reversed the Authority's decision in National
 Treasury Employees Union and Internal Revenue Service.  In reversing the
 Authority's decision in that case, the court rejected the Authority's
 conclusion that the determination of whether a particular level of job
 performance warrants granting an incentive award is included within
 management's rights to assign work and direct employees.  Upon
 consideration of the court's decision, the Authority sought remand of
 this case, which was then pending before the court on appeal.
 
    On November 6, 1986, in response to the Authority's motion for remand
 in this case, the U.S. Court of Appeals for the District of Columbia
 Circuit, after citing the history noted above, reversed the Authority's
 previous decision and remanded the case "for a determination of a proper
 remedy for the employer's refusal to bargain."
 
    The Authority accepts the court's opinion as the law of the case and
 consistent with that opinion shall fashion an appropriate remedial
 order.  While agreeing with the Administrative Law Judge that a status
 quo ante remedy is appropriate, we disagree with his rationale in
 reaching that conclusion.  We find, as contended by the General Counsel
 in his exceptions, that where management has made a unilateral change in
 a negotiable term and condition of employment, effectuation of the
 purposes and policies of the Statute requires a return to the status quo
 ante, absent special circumstances, in order not to render meaningless
 the material obligation to negotiate.  Veterans Administration, West Los
 Angeles Medical Center, Los Angeles, California, 23 FLRA No. 37, slip
 op. at 4 n.3 (1986).  Noting no evidence of special circumstances, we
 find that Respondent's bare assertion in its exceptions that
 implementation of a status quo ante remedy in this case would violate
 the requirements of 5 U.S.C. Section 4302 amounts to nothing more than
 mere conjecture and provides no basis for not imposing such a remedy in
 this case.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 ordered that the Department of the Navy, Northern Division, Naval
 Facilities Engineering Command shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally changing the functions of the Incentive
 Awards/Performance Appraisal Committee by removing from its purview any
 review and recommendation to the Commander as to Quality Step Increases,
 Outstanding Performance Ratings and Sustained Superior Performance
 Awards, for unit employees, without first notifying the National
 Federation of Federal Employees, Local 1430, the exclusive bargaining
 representative, and affording it the opportunity to bargain, to the
 extent consonant with law and regulations, on the decision to effectuate
 such action.
 
    (b) In any like or related manner interfering with, restraining or
 coercing its 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) Rescind and withdraw NORTHNAVFACENGCOM NOTICE 12451, dated June
 24, 1981, and its provisions which removed from the purview of the
 Incentive Awards/Performance Appraisal Committee any functions as to its
 review and recommendation to the Commander concerning Quality Step
 Increases, Outstanding Performance Ratings and Sustained Superior
 Performance Awards, for unit employees.
 
    (b) To the extent consonant with law and regulations, restore the
 procedure which existed prior to December 26, 1979 whereby the Incentive
 Awards/Performance Appraisal Committee reviewed proposed Quality Step
 Increases, Outstanding Performance Ratings, Sustained Superior
 Performance Awards, in addition to Unsatisfactory Ratings, Beneficial
 Suggestions, and Special Achievement Awards, and made recommendations
 thereon to the Commander.
 
    (c) Notify the National Federation of Federal Employees Local 1430,
 the exclusive bargaining representative, of any intention to change the
 functions of the Incentive Awards/Performance Appraisal Committee, or to
 remove from its purview any review and recommendation to the Commander
 as to proposed awards, and, upon request, bargain with said
 representative, to the extent consonant with law and regulations, on the
 decision to effectuate such action.
 
    (d) Post at its facilities at the Northern Division, Naval Facilities
 Engineering Command, Philadelphia, Pennsylvania, 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
 Commander, and shall be posted and maintained for 60 consecutive days
 thereafter in conspicuous places, including all bulletin boards and
 places where notices to employees are customarily posted.  Reasonable
 steps shall be taken to insure that such notices are not altered,
 defaced, or covered by any other material.
 
    (e) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations notify the Regional Director, Region II, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order as to what steps have been taken to comply with it.
 
    It is further ordered that the remaining allegations of the complaint
 concerning Respondent's failure to cooperate in impasse procedures of
 the Federal Service Impasses Panel are dismissed.
 
    Issued, Washington, D.C. December 29, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT unilaterally change the functions of the Incentive
 Awards/Performance Appraisal Committee by removing from its purview any
 review and recommendation to the Commander as to Quality Step Increases,
 Outstanding Performance Ratings and Sustained Superior Performance
 Awards, for unit employees, without first notifying the National
 Federation of Federal Employees, Local 1430, the exclusive bargaining
 repre