27:0304(41)CA - DOT, FAA, Washington, DC; FAA, Eastern Region, Jamaica, NY; FAA, Airways Facilities Sector 810, Albany, NY and PASS -- 1987 FLRAdec CA

 27 FLRA No. 41
 
 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
 Respondent
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
 Charging Party
 
                                            Case No. 1-CA-30218 
                                              (20 FLRA No. 68)
 
                       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, No. 85-1827 (D.C.
 Cir. Jan. 16, 1987).  The case concerns whether the refusal-to-bargain
 violation in Department of Transportation, 20 FLRA 548 (1985) (DOT)
 warrants a remedy of backpay.  /1/
 
                         II.  History of the Case
 
                                 A.  Facts
 
    In 1983 the Respondent informed representatives of the Charging Party
 (the Union) of a planned reduction-in-force (RIF) which would affect a
 unit employee (Mr. Panek) in Albany, New York.  The Union requested
 bargaining on the implementation of the RIF.  The Respondent refused the
 Union's request and implemented the RIF without bargaining.  As a result
 of the RIF, Panek was separated from employment, after refusing a
 transfer to Saranac Lake, New York.  The refusal to bargain gave rise to
 the complaint, alleging that the Respondent had violated section
 7116(a)(1) and (5) of the Federal Service Labor-Management Relations
 Statute (the Statute).
 
                  B.  Administrative Law Judge's Decision
 
    In DOT, the Judge rejected Respondent's view that it had no duty to
 bargain on the implementation of the RIF and concluded that Respondent's
 refusal to bargain violated the Statute.  To remedy the violation, the
 Judge recommended that the Respondent be ordered to cease and desist
 from this conduct, to rescind the RIF and reinstate Panek upon request,
 and to bargain on the implementation of the RIF as requested by the
 Union.  He concluded that a backpay remedy, requested in connection with
 Panek's separation, would be inappropriate.  20 FLRA 561.
 
                         C.  Authority's Decision
 
    On review, the Authority affirmed the Judge's decision that the
 Respondent violated the Statute by refusing to bargain and adopted the
 essence of his recommended remedy, agreeing with the Judge that the
 violation did not warrant a backpay remedy.  20 FLRA 548 n.2.
 
                           D.  Court's Decision
 
    In Professional Airways Systems Specialists, the court granted the
 petitions for review of DOT and the companion case of Federal Aviation
 Administration, Washington, D.C., 20 FLRA 273 (1985) (FAA).  The court
 concluded that the Authority had applied a per se rule under the Back
 Pay Act by denying backpay in "impact and implementation" cases, and the
 court held that a per se rule in such cases is contrary to the Act.
 Slip op. at 2.  Accordingly, the court remanded both cases to enable the
 Authority to fashion a proper test for awarding backpay in impact and
 implementation cases.  The court expressed no opinion on whether the
 employees in the cases before it are entitled to backpay.  Slip op. at
 11.
 
                              III.  Analysis
 
    In Federal Aviation Administration, 27 FLRA No. 36 (1987) (FAA II) --
 our decision on the remand in the companion case -- we reconsidered the
 issue of backpay in cases of a refusal to bargain over "impact and
 implementation," and we formulated an approach which we believe to be
 consistent with the Back Pay Act and the purposes and policies of the
 Statute.  In sum, we recognized that a backpay award under the Back Pay
 Act requires determinations that:
 
          (1) an employee was affected by an unjustified or unwarranted
       agency personnel action;
 
          (2) the unjustified personnel action resulted in a withdrawal
       or reduction in pay, allowances, or differentials of the employee;
        and
 
          (3) the withdrawal or reduction would not have occurred but for
       the unjustified action.
 
    In FAA II we specifically noted that 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 is shown that the agency personnel action
 which gave rise to the violation resulted in a withdrawal or reduction
 in the pay, allowances, or differentials of employees.  In FAA II we
 decided that 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 bargaining ordered to correct the unfair labor practice,
 subject to the parties agreeing otherwise.  Slip op. at 6.
 
         IV.  Conclusion:  the backpay remedy in DOT, 20 FLRA 548
 
    In DOT is was shown that the Respondent refused to bargain on the
 implementation of the RIF as required by the Statute.  Accordingly, it
 is established that unit employees were affected by an unjustified or
 unwarranted personnel action.  It was also shown that the unjustified
 personnel action -- implementation by the agency of a reduction-in-force
 in the Albany sector without bargaining as required by the Statute --
 directly resulted in the separation from employment of Panek and a total
 withdrawal of his pay, allowances, and differentials.  Applying to this
 case the approach we explained in detail in FAA II and have summarized
 here, we conclude that the Authorit