27:0230(36)CA - FAA, Washington, DC and PASS -- 1987 FLRAdec CA
[ v27 p230 ]
The decision of the Authority follows:
27 FLRA No. 36 FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C. Respondent and PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS, MEBA, AFL-CIO Charging Party Case No. 5-CA-40069 (20 FLRA No. 33) DECISION AND ORDER ON REMAND I. Statement of the Case This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit in Professional Airways Systems Specialists, MEBA, AFL-CIO v. FLRA, 809 F.2d 855 (D.C. Cir. 1987). The case concerns whether the remedy for the Respondent's failure to fulfill its statutory duty to bargain in Federal Aviation Administration, Washington, D.C., 20 FLRA 273 (1985), warrants an award of backpay. II. History of the Case A. Facts In 1983 the Respondent informed the Charging Party (the Union) of a reorganization in its Great Lakes region which would change unit employees' conditions of employment. The Union requested bargaining on the procedurs used to implement the reorganization and the reorganization's impact on unit employees. The Respondent refused to bargain and implemented the reorganization. As a result of the reorganization, unit employees experienced a change in work hours and a reduction in premium pay. The refusal to bargain gave rise to the complaint, alleging that the Respondent had violated section 7116(a)(1) and (5) of the Statute. B. Administrative Law Judge's Decision In FAA, Washington, D.C., 20 FLRA 273, the Judge rejected Respondent's view that it had no duty to bargain on the implementation and concluded that the Respondent had violated the Statute as alleged. To remedy the violation the Judge recommended that the Respondent be required to cease and desist from this conduct. He also recommended that the Respondent be ordered to return to its previous organization, bargain on the implementation as requested by the Union, and make employees whole for any losses of premium pay they suffered because of the reorganization. C. Authority's decision The Authority affirmed the Judge's conclusion that the Respondent had violated the Statute, but modified portions of the recommended remedy, concluding that the make-whole remedy was inappropriate. 20 FLRA 273, 274 n. The Authority stated that in order for a backpay order to be authorized under the Back Pay Act (5 U.S.C. Section 5596), there must be a determination that an employee has been adversely affected by an unjustified or unwarranted personnel action and a determination that "but for" the improper action, the employee would not have suffered a withdrawal or reduction in pay, allowances, or differentials. The Authority, noting that the Judge had recommended the make-whole remedy without applying the "but for" test and the lack of evidence in the record to support such finding, found that an award of backpay was unwarranted. D. Court's decision In Professional Airways Systems Specialists, the court granted the petitions for review of FAA, Washington, D.C. and a companion case. /1/ The court agreed with the Authority's formulation of a "but for" test in awarding backpay, finding that the "test is consistent with the language of" the Back Pay Act and "appropriately effects the causal nexus" which is mandated by the Act. Slip op. at 6. However, the court concluded that the Authority had applied a per se rule under the Act by denying backpay in cases where the agency-employer had the right to make the substantive change that it made, but where the agency committed an unfair labor practice by failing or refusing to bargain over the "impact and implementation" of the change. The court specifically held that a per se rule in impact and implementation cases is contrary to the Back Pay Act. Slip op. at 2. The court emphasized that its holding was limited. The court simply decided that the Back Pay Act permits a backpay award to employees who have been affected by an agency personnel action taken without the impact and implementation bargaining required by the Statute, so long as the employees meet the burden of establishing a causal nexus between the unjustified action and the withdrawal or reduction of pay, allowances, or differentials. Accordingly, the court remanded the cases to enable the Authority to fashion a proper test for awarding backpay in impact and implementation cases. Slip op. at 11. In remanding the cases, the court also rejected any per se rule in favor of backpay awards in these types of cases. The court expressed no opinion on whether the employees in the cases before it are entitled to backpay. Slip op. at 11. The court directed the Authority to allow for the difficulty in establishing that bargaining which never occurred by virtue of an unfair labor practice would have prevented the withdrawal or reduction in pay, allowances, or differentials. The court noted, however, that of course not every "procedural violation" must result in a backpay award. III. Analysis In accordance with the decision of the court, we have further considered the issue of backpay in cases of a refusal to bargain over "impact and implementation," and we have formulated an approach which we believe to be consistent with the Back Pay Act and the purposes and policies of the Statute. We explain the approach in section A, below. In section B, we apply this approach to the unfair labor practice in FAA, Washington, D.C. A. The approach (1) "Unjustified or unwarranted personnel action" A decision on whether an employee is entitled to an award of backpay under the Act first requires a determination that the employee was affected by an unjustified or unwarranted personnel action. Under Authority precedent, this is established when it is determined that the employee was affected by an unfair labor practice under the Statute. United States Department of Housing and Urban Development, Region VI and United States Department of Housing and Urban Development, Region VI, San Antonio Area Office, 24 FLRA No. 84 (1986). This includes a refusal-to-bargain violation under section 7116(a)(5). See Veterans Administration, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, 22 FLRA No. 69 (1986). In refusal-to-bargain cases, the unjustified personnel action is not merely the agency's refusal to bargain. The unjustified action within the meaning of the Back Pay Act is the agency's action of changing the conditions of employment of unit employees without providing the exclusive representative with an opportunity to bargain as required by the Statute. (2) "Withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee" When it has been determined that the employee was affected by an unjustified or unwarranted personnel action, it must be further determined that the unjustified personnel action resulted in the withdrawal or reduction in the employee's pay, allowances, or differentials within the meaning of the Act. For example, in FAA, Washington, D.C., it must be established that the unjustified personnel action -- implementation by the agency of a reorganization without bargaining as required by the Statute -- resulted in the withdrawal or reduction in the pay, allowances, or differentials of affected employees. (3) The "but for" nexus When it has been determined (1) that an employee was affected by an agency's unjustified personnel action, and (2) that the agency action resulted in a withdrawal or reduction of the employee's pay, allowances, or differentials, the final determination necessary for an award of backpay is that but for the unjustified personnel action, the employee otherwise would not have suffered the withdrawal or reduction. In some unfair labor practice cases, this causal relationship is clearly established. In these cases, we will continue to specifically order backpay as corrective action for the unfair labor practice involved to make the employee whole. See San Antonio Area Office, 24 FLRA No. 84. As noted by the court in PASS, in refusal-to-bargain cases it is difficult to establish that the bargaining which should have occurred would have prevented any of the loss in pay, allowances, or differentials. In such a case it cannot be established with certainty that the withdrawal or reduction would not have occurred "but for" the refusal to bargain. However, denial of a backpay remedy on this basis would imply that the bargaining could not have prevented or lessened the monetary loss of the affected employees. This implication conflicts with the expectation of Congress that bargaining as required by the Statute would affect the manner in which such agency actions are implemented. See PASS, slip op. at 7 n.8. Moreover, backpay remedies can be ordered in these cases consistent with the "but for" test. When an agency has been shown to have violated the Statute by refusing to bargain, the Authority orders the agency to bargain consistent with its obligation under the Statute. For example, FAA, Washington, D.C., 20 FLRA 273. When the ordered bargaining is completed, with assistance from the Federal Service Impasses Panel, if necessary, the effect of the bargaining on the withdrawal or reduction in pay, allowances, or differentials of affected employees will be known. Accordingly, where an agency has violated the Statute by refusing to bargain regarding a change in a condition of employment and the change resulted in a withdrawal or reduction in the pay, allowances, or differentials of affected unit employees, an order directing bargaining and the payment of backpay consistent with the outcome of the bargaining is an appropriate remedy for the agency's violation. Because the result of the ordered bargaining will most closely approximate the result which would have occurred if the agency had initially bargained as required, an agreement providing for adjustment of the withdrawal or reduction in pay, allowances, or differentials of affected employees will satisfy the Back Pay Act requirement for a causal nexus. In sum, a backpay award under the Back Pay Act requires a determination (1) that an employee was affected by an unjustified or unwarranted personnel action, (2) that the unjustified or unwarranted personnel action resulted in a withdrawal or reduction in the pay, allowances, or differentials of the employee, and (3) that the withdrawal or reduction would not have occurred but for the unjustified action. The first requirement is met when it is established that employees were affected by an agency unfair labor practice, including a refusal-to-bargain violation. The second requirement is met when it has been shown that the agency action which gave rise to the violation resulted in a withdrawal or reduction in the pay, allowances, or differentials of employees. If these requirements are met in a refusal-to-bargain case, we will conclude that the violation warrants a remedy of backpay. This remedy will require an award of backpay which is consistent with the results of the ordered bargaining, subject to the parties agreeing otherwise. Any disputes over whether the ordered bargaining resulted in any agreement which eliminated or reduced the withdrawal or reduction in pay, allowances, or differentials can be raised as a compliance matter. In our view, this approach is consistent with and best implements the mandates of the Back Pay Act in cases of this sort. Further, this approach is consistent with the purposes and policies of the Statute. It implements the expectation of Congress that bargaining as required by the Statute carries the prospect of modifying the implementation of such agency changes. The approach is based on the requirement that agencies give exclusive representatives advance notice of changes which affect conditions of employment and is consistent with the Authority's policy, discussed in Environmental Protection Agency, 21 FLRA No. 98 (1986), of ensuring that the parties and the Federal Services Impasses Panel retain the flexibility they require to fashion agreements which are most appropriate for the parties' agreements circumstances. Accordingly, prior Authority decisions concerning the application of backpay remedies in refusal-to-bargain cases which are inconsistent with the approach described in this decisiqon will no longer be followed. B. The remedy in FAA, Washington, D.C. In FAA, Washington, D.C., 20 FLRA 273, it was shown that the Respondent committed a refusal-to-bargain violation. Accordingly, it is established that unit employees were affected by an agency unfair labor practice, which constitutes an unjustified or unwarranted personnel action. It was also shown that the unjustified personnel action -- implementation by the agency of a reorganization without bargaining as required by the Statute -- directly resulted in the withdrawal or reduction in the differential pay of unit employees. Applying the approach we have explained to this case, we conclude that the Authority's prior order in the case should be supplemented with a backpay remedy. Since the bargaining order previously issued, it remains to require the Respondent (absent the agreement of the parties otherwise) to provide backpay to any employees who suffered a withdrawal or reduction in differential pay because of the reorganization to the extent that the ordered bargaining eliminated or reduced any withdrawal or reduction in that differential pay. IV. Order Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Federal Aviation Administration, Washington, D.C., shall take the following affirmative action to effectuate the purposes and policies of the Statute -- 1. Except as otherwise agreed by the Professional Airways Systems Specialists, MEBA, AFL-CIO, provide backpay to any employee who suffered a withdrawal or reduction in pay differentials because of the reorganization of the Great Lakes Region Air Route Control Centers on August 1, 1983, to the extent that bargaining in compliance with the Authority's Order in FAA, Washington, D.C., 20 FLRA 273 (1985), eliminated or reduced any withdrawal or reduction in pay differentials which was caused by the reorganization. 2. Post copies of the attached Notice, on forms furnished by the Authority, at the facilities of the Great Lakes Region Air Route Control Centers. Upon receipt, the forms shall be signed by the head of the Great Lakes Region and shall be posted and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered. 3. Notify the Regional Director, Region V, Federal Labor Relations Authority, in writing within 30 days of the date of this Order, as required under section 2423.30 of the Authority's Rules and Regulations, of the steps which have been taken to comply with this Order. Issued, Washington, D.C., May 29, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) United States Department of Transportation, Federal Aviation Administration, Washington, D.C.; Federal Aviation Administration, Eastern Region, Jamaica, New York; and Federal Aviation Administration, Airways Facilities Sector 810, Albany, New York, 20 FLRA 548 (1985).