32:0521(77)CA - - HHS, SSA, Dallas Region, Dallas, TX and American Federation of Government Employees, AFL-CIO, National Council of SSA-Field Operations Locals, Case No. 6-CA-785;   HHS, SSA, McAllen District Office, McAllen, TX and American Federation of Government Employees, Local 3388, AFL-CIO, Case No. 6-CA-1034; HHS, SSA, El Paso District Office, El Paso, TX and American Federation of Government Employees, Local 2991, AFL-CIO- - 1988 FLRAdec CA - - v32 p521



[ v32 p521 ]
32:0521(77)CA
The decision of the Authority follows:


32 FLRA No. 77

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

 

DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
DALLAS REGION, DALLAS, TEXAS
Respondent

and 

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, NATIONAL COUNCIL
OF SOCIAL SECURITY ADMINISTRATION-
FIELD OPERATIONS LOCALS
Charging Party

DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
McALLEN DISTRICT OFFICE, McALLEN, TEXAS
Respondent

and 

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3388, AFL-CIO
Charging Party

DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
EL PASO DISTRICT OFFICE, EL PASO, TEXAS
Respondent

and 

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2991, AFL-CIO 
Charging Party

6-CA-1055
(23 FLRA 807)

Case No. 6-CA-785
(23 FLRA 807)

Case No. 6-CA-1034
(23 FLRA 807)

Case Nos. 6-CA-1053
6-CA-1053-1
6-CA-1054

DECISION AND ORDER ON REMAND

I. Statement of the Cases

This consolidated proceeding is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit in American Federation of Government Employees, SSA Council 220 v. FLRA, 840 F.2d 925 (D.C. Cir. 1988) (SSA Council 220).

The issue is whether the remedy for the Respondent Dallas Regional Office's violation of the Federal Service Labor-Management Relations Statute (the Statute) by instructing the McAllen and El Paso District Offices to implement accountability plans for assessing employee performance without bargaining with the exclusive representative of their employees warrants direct, individualized, "make-whole" relief. We conclude that it does, and we will supplement our previous order in this case to include this relief.

II. History of the Cases

A. Facts

The Dallas Regional Office of the Social Security Administration, Department of Health and Human Services promulgated a Personnel Guide for Supervisors (the Guide) in 1980. The Guide was intended to provide a framework under which management officials would establish performance goals for employees and provide measures for assessing employee performance. The assessment of employee performance was to provide a means of documenting removals and demotions for unacceptable performance, awards, and the granting or denying of within-grade increases.

The Guide was forwarded to regional sub-offices for action including the McAllen and El Paso District Offices. The management officials in the sub-offices were to prepare employee performance goals and employee accountability plans for assessing the performance of employees using quantitative measures based on the character of the work performed in their offices and the work actually performed by the employees in the office. These actions were taken by the McAllen and El Paso District Offices without bargaining with the exclusive representative of their employees.

B. Administrative Law Judge's Decision

In Case No. 6-CA-785, the Administrative Law Judge (the Judge) concluded that the formulation of employee accountability plans pursuant to the Guide by management officials of the Dallas Region's McAllen and El Paso District Offices constituted a change in the conditions of employment of unit employees over which there was a duty to bargain on the impact and implementation of the accountability plans. The Judge concluded that the Respondent Dallas Regional Office violated section 7116(a)(1) and (5) of the Statute by instructing the McAllen and El Paso District Offices not to bargain with the exclusive representative of their employees over implementation of the employee accountability plans formulated pursuant to the Guide.

In Case No. 6-CA-1034 and Case Nos. 6-CA-1053-1055, the Judge, in addition, concluded that the Respondents McAllen and El Paso District Offices violated the Statute by establishing accountability plans for assessing employee performance without affording the exclusive representative of their employees a prior opportunity to bargain over the negotiable aspects of the plans.

To remedy the violations, the Judge recommended that the Respondents be ordered to implement status quo ante relief, which would require the Respondents to: (1) withdraw the accountability plans formulated pursuant to the Guide; (2) destroy employee evaluations prepared pursuant to the plans; (3) bargain over negotiable aspects of employee accountability plans prior to implementation; and (4) "make whole" any employee adversely affected by such accountability plans, consistent with applicable law and regulations.

C. Authority's Decision

In Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, 23 FLRA 807 (1986), we affirmed the Judge's conclusion that the Respondent Dallas Regional Office had violated the Statute by instructing the McAllen and El Paso District Offices not to bargain over the implementation of the accountability plans for employee assessment. In disagreement with the Judge, we found that in refusing to bargain over the plans, the Respondents McAllen and El Paso District Offices were only carrying out the instructions of the Dallas Regional Office. We concluded that the purposes and policies of the Statute would not be effectuated by finding a separate violation based on the actions of officials in those District Offices.

We also concluded that the Judge's recommended SQA relief of withdrawing the accountability plans and destroying the employee evaluations prepared pursuant to the plans was not warranted. After considering the factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI), and balancing the nature of the violations against the degree of disruption in Government operations that would be caused by the remedy, we determined that an appropriate remedy was to order the Dallas Regional Office to instruct its McAllen and El Paso District Offices to bargain on (1) the manner in which employees will participate in the preparation of employee accountability plans required by the Guide; (2) the implementation of those accountability plans; and (3) the procedures and appropriate arrangements for employees whose performance appraisals have been adversely affected by such accountability plans. We noted that a prospective bargaining order would allow the parties to address the effects on unit employees of changes already made, and we concluded that it was not necessary or appropriate to order adversely affected employees to be made whole.

D. Court's Decision

The Union's petition for review of the Authority's decision was confined to the remedy for the refusal to bargain over the implementation of the accountability plans for employee assessment.

In SAA Council 220, the court affirmed the Authority's refusal to order a SQA remedy involving invalidation of employee evaluations or withdrawal of existing accountability plans. 840 F.2d at 929. However, the court vacated the Authority's decision to order prospective bargaining instead of direct, individualized, "make-whole" relief. The court concluded that the Authority improperly had failed to independently evaluate under FCI the impact of the Judge's recommended order requiring that any employee adversely affected by use of the accountability plans be "made whole." Id. at 929-30.

Consequently, the court remanded the cases to enable the Authority to consider whether "individual 'make whole' relief entails significant agency disruption or whether there are special considerations making a partial grant of a SQA remedy less feasible than it appears to be." Id. at 931. The court further stated that although the Union had not requested an award of backpay, "make-whole" relief for aggrieved employees may take this form. The court cited our decision in Federal Aviation Administration, 27 FLRA 230 (1987) (FAA II), where we formulated an approach to the issue of backpay in cases where an agency changed the conditions of employment of unit employees without providing the exclusive representative with an opportunity to bargain. Id. at 930-31.

III. Analysis and Conclusions

We conclude that an order directing the Respondent Dallas Regional Office to "make whole" any employee adversely affected by the implementation by the McAllen and El Paso District Offices of the accountability plans for employee assessment is necessary and appropriate to remedy the violation of the Statute. The purpose of a "make-whole" remedy is to place individuals who have been adversely affected by an improper action in the situation where they would have been if the improper action had not occurred. We conclude that this remedy should include backpay for those employees who suffered a withdrawal or reduction of pay, allowances, or differentials as a result of the improper implementation of the accountability plans.

As directed by the court, id. at 930, we have considered whether a "make-whole" remedy would disrupt agency operations. We find that the "make-whole" remedy would not substantially disrupt or impair the efficiency or effectiveness of the operations at the McAllen or El Paso District Offices. We also find that ordering that individual employees who were adversely affected by the improper implementation of the accountability plans be "made whole" effectuates the purposes and policies of the Statute by placing these employees in the situation where they would have been if the violation of the Statute had not occurred.

For most of the employees who were adversely affected, this remedy will require that they receive the performance ratings that they otherwise would have received if the Statute had not been violated. This remedy also requires the correction of personnel actions that would or would not have been taken but for the violation of the Statute. For example, if as a result of the improper implementation of the accountability plans, an employee was removed or reduced in grade, this remedy will require that the employee be restored to the employee's original position.

For those employees who suffered a withdrawal or reduction in pay, allowances, or differentials as a result of the violation of the Statute, the ordered "make-whole" remedy should include backpay.

In FAA II, 27 FLRA 230, which was discussed by the court in relation to whether the individualized relief should include backpay, we formulated an approach for determining whether backpay remedies are appropriate in cases involving agency refusals to bargain. See also United States Department of Transportation, Federal Aviation Administration, Washington, D.C., 27 FLRA 304 (1987). We stated that a backpay award must comply with the Back Pay Act, 5 U.S.C. § 5596, and 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 noted that the first requirement is met when an agency has committed an unfair labor practice by refusing to bargain. The second requirement is met when the management action which gave rise to the violation resulted in a withdrawal or reduction in the pay, allowances, or differentials of employees. 27 FLRA at 232-33. In FAA II, we also decided that when the first and second requirements are met in a refusal-to-bargain case, an order directing bargaining and the payment of backpay consistent with the outcome of the bargaining satisfies the third requirement: the withdrawal or reduction would not have occurred but for the unjustified action. Id. at 234-35.

In this case, the first requirement was met by the Dallas Regional Office's violation of the Statute in instructing the McAllen and El Paso District Offices to refuse to bargain on the implementation of the accountability plans.

We further conclude that in cases such as this, where actual withdrawals or reductions may occur well after the change is implemented, the second requirement is satisfied when a relationship is shown between the improper change and the manner in which agencies determine the pay, allowances, or differentials of unit employees. Here, the Respondent violated the Statute when it unilaterally changed the process by which employee performance is assessed. These assessments of employee performance were to provide a means of documenting removals and demotions for unacceptable performance, awards, and the granting or denying of within-grade increases. These actions clearly relate to the pay, allowances, and differentials of unit employees. Accordingly, the second requirement of the Back Pay Act is satisfied in this case. In accordance with FAA II, we conclude that an order directing payment of backpay consistent with the outcome of ordered bargaining satisfies the third requirement.

Therefore, we conclude that backpay is an appropriate remedy to "make whole" any employee who suffered a withdrawal or reduction in pay, allowances, or differentials as a result of the implementation of the accountability plans. Backpay will be awarded consistent with the outcome of the bargaining previously ordered in this case, 23 FLRA at 817, absent agreement otherwise, to unit employees in the McAllen and El Paso District Offices who, as a result of the implementation of the accountability plans, had their pay, allowances, or differentials withdrawn or reduced provided that the ordered bargaining eliminated or reduced the withdrawal or reduction in pay, allowances, or differentials.

Accordingly, we will supplement our prior bargaining order in this case with a "make-whole" remedy which includes backpay. Since the bargaining order previously issued, it remains only to require the Respondent Dallas Regional Office (absent agreement of the parties otherwise) to "make-whole" any unit employee in the McAllen and El Paso District Offices who was adversely affected by the improper implementation of the accountability plans and provide backpay to any unit employee consistent with this decision.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we order that the Department of Health and Human Services, Social

Security Administration, Dallas Region, Dallas, Texas, shall take the following affirmative action to effectuate the purposes and policies of the Statute:

1. Except as otherwise agreed by the American Federation of Government Employees, AFL-CIO, National Council of Social Security Administration-Field Operations Locals, make whole any bargaining unit employee in the McAllen District Office, McAllen, Texas, or the El Paso District Office, El Paso, Texas, who was adversely affected by the implementation of accountability plans for employee assessment which was determined by the Authority to be in violation of the Statute in Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, 23 FLRA 807 (1986) (SSA, Dallas Region).

This make-whole remedy shall include backpay for any bargaining unit employee who suffered a withdrawal or reduction in pay, allowances, or differentials because of the implementation of employee accountability plans at the McAllen and El Paso District Offices, to the extent that bargaining in compliance with the Authority's Order in SAA, Dallas Region eliminated or reduced any withdrawal or reduction in pay, allowances, or differentials which was caused by the implementation of the accountability plans.

2. Post copies of the attached notice, on forms to be furnished by the Authority, at its facilities and the facilities of the McAllen and El Paso District Offices. Upon receipt, the forms