48:0313(27)CA - - FDIC, Washington, DC and FDIC, Oklahoma City, OK and NTEU - - 1993 FLRAdec CA - - v48 p313



[ v48 p313 ]
48:0313(27)CA
The decision of the Authority follows:


48 FLRA No. 27

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL DEPOSIT INSURANCE CORPORATION

WASHINGTON, D.C.

and

FEDERAL DEPOSIT INSURANCE CORPORATION

OKLAHOMA CITY, OKLAHOMA

(Respondents)

and

NATIONAL TREASURY EMPLOYEES UNION

(Charging Party/Union)

76-CA-10637

_____

DECISION AND ORDER

August 19, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondents filed briefs.

The amended complaint alleges that the Respondents violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it did not renew the temporary appointments of Liquidation Grade (LG) employees in February and April 1991, at the Respondents' Oklahoma City Consolidated Office (Oklahoma City CO), without providing the Union with prior notice or an opportunity to negotiate over the procedures to be observed in connection with such non-renewals and appropriate arrangements for employees adversely affected by such non-renewals.

For the reasons stated below, we find that the Respondents committed the unfair labor practice alleged.

II. Facts

On December 28, 1990, the Union was certified as the exclusive representative of a nationwide bargaining unit of professional employees and a nationwide bargaining unit of nonprofessional employees of the Federal Deposit Insurance Corporation (FDIC) in the FDIC's Division of Liquidation (DoL) who are employed at the DoL regional offices, consolidated offices, and liquidation sites nationwide, including the nonprofessional employees at the Oklahoma City CO. Eighty percent of the employees in the bargaining units represented by the Union are Liquidation Graded (LG) employees.(1) Of the approximately 333 employees assigned to the Oklahoma City CO as of March 31, 1991, approximately 293 were bargaining unit employees. Of that number, 265 were LG employees and 28 were permanent General Graded (GG) employees.

Exclusive recognition is at the national level, and, at all times material to this case, the parties at that level did not agree to authorize any local level negotiations. NTEU, Chapter 256, is an agent of the Union and provides services to bargaining unit employees assigned to the Oklahoma City CO. On January 22, 1991, the NTEU national president designated Carl Deck as the interim president of NTEU Chapter 256. By virtue of this designation, Deck was authorized to act on behalf of the Union in all matters and to initiate bargaining with the Respondents on behalf of the Union. The parties stipulated that the Respondents had been provided notice of Deck's authority to submit a bargaining demand on behalf of the Union.

The DoL is responsible for liquidation activities, which include making payments to depositors of closed banks; managing failed financial institution receiverships; and selling assets of failed financial institutions in order to recoup losses to the FDIC's insurance funds.

From 1984 to the present, the DoL has opened, maintained, and closed consolidated offices. Consolidated offices are closed when the liquidations are complete or have reached a stage that they can effectively be handled at a different location. The Oklahoma City CO, which is one of sixteen currently existing DoL consolidated offices, opened in 1984.

The U.S. Office of Personnel Management (OPM) has authorized the Respondents to appoint LG employees under Schedule A authority. 5 C.F.R. § 213.3101. Schedule A is a form of appointing authority for positions excepted from competitive service under the authority of 5 U.S.C. § 3302 and 5 C.F.R. §§ 6.1, 6.2 and Part 213. Schedule A includes "positions other than those of a confidential or policy-determining character for which it is not practicable to examine." Stipulation, paragraph 23. The Respondents' Schedule A authority was most recently amended by OPM, on August 10, 1989, to include "'[a]ll Liquidation Graded, temporary field positions concerned with the work of liquidating the assets of closed banks or savings and loan institutions, of liquidating loans to banks or savings and loan institutions, or of paying the depositors of closed insured banks or savings and loan institutions'" Id., paragraph 30.

LG appointments may be made during any 5-year period following the failure of an insured financial institution, and/or following the establishment of, or most recent failure in, a consolidated office. A single appointment may not exceed five years. Almost all LG employees receive 1-year appointments, but at the expiration of one appointment, they may receive another appointment from DoL. LG employees are notified that their appointments are temporary prior to or at the time of hiring, at which time the expiration date and duration of the LG appointment is fixed. LG employees are hired locally by the consolidated offices without going through the civil service selection process.

The appointments of LG employees may be terminated or non-renewed for any reason, except for illegal discrimination. Permissible reasons for non-renewal include, but are not limited to, lack of available work, misconduct, or poor performance. Upon the conclusion of an appointment, an LG employee may voluntarily leave the Respondents' employment as part of the normal attrition process under circumstances where such employee would otherwise have been renewed. At the time LG appointments end, DoL management evaluates, based on workload considerations, the need for new LG appointments and assesses the appropriate time period for such new appointments if it is determined that a need for such appointments continues. When a consolidated office is in the process of downsizing, the need to employ individuals in many occupational areas becomes unnecessary and, as a result, the appointments of the LG employees presently occupying those positions will not be renewed because of lack of available work.

When the Respondents determine not to renew an LG employee's appointment, written notice is provided to the employee that his or her appointment is about to expire on a date certain. In the absence of receiving such notice, the employee can otherwise expect to receive another appointment. At all times material to this case, the method and procedure for the timing of the issuance of such notices to employees and their content have been determined unilaterally by management. Upon determining that an LG employee's appointment will not be renewed, the Respondents may elect to advise the LG employee that employment is available at another work-site, and the LG employee may then apply and receive an appointment at that work-site.

During fiscal year (FY) 1989, the appointments of 161 LG employees assigned to DoL, nationwide, expired and were not renewed. Of those, 11 were assigned to the Oklahoma City CO. During FY 1990, the appointments of 35 LG employees assigned to the DoL, nationwide, expired and were not renewed. Of those, 1 was assigned to the Oklahoma City, CO. During FY 1991, the appointments of 153 LG employees assigned to the DoL, nationwide, expired and were not renewed. Of those, 24 were assigned to the Oklahoma City CO.

Approximately 44 LG employees assigned to the Oklahoma City CO had expiration dates during April and May 1991 for their temporary appointments. Of these 44 employees, 30 received renewal of their employment appointments, 13 nonprofessional LG employees were not renewed and one employee who was to receive an employment extension died. During February 1991, the Respondents provided written notice to the 13 LG employees that their temporary appointments would expire on a date certain and would not be extended. The non-renewals of the appointments of LG employees in the Oklahoma City CO during 1991 were based on the decrease in workload of specific sections and departments due to the decrease in bank closings and assets to be liquidated and workload projections for the subsequent 12 months. In determining which employees in a specific section would not be renewed, management considered the grade level of the employees in the section and the assets to be liquidated to which they were assigned. The parties stipulated that assets to be liquidated may be reassigned from one employee to another.

The Respondents did not provide the Union with prior notice of the non-renewals of the 13 LG employees, or with an opportunity to negotiate over procedures to be observed in connection with such non-renewals and appropriate arrangements for employees adversely affected by such non-renewals. The non-renewal of the 13 LG employees represented the first time the Respondents had taken such actions in the Oklahoma City CO since the Union was certified as the employees' exclusive representative.

The parties stipulated that, at all times material, there has never been any negotiated agreement between the parties that would cover the procedures to be observed in connection with the non-renewal of temporary LG employees and the appropriate arrangements for employees adversely affected by such non-renewals, and that the Union has not waived the right to pursue such negotiations.

On February 22, 1991, the Union, through Deck, submitted a bargaining demand to Respondent Oklahoma City CO concerning the "procedures to be followed by FDIC in selecting those to be involuntarily terminated or non-renewed pursuant to FDIC's on-going reduction in DoL staff at the FDIC Oklahoma City Consolidated Office." Stipulation Exhibit 15. Respondent Oklahoma City CO advised Deck that the Union's bargaining demand had been forwarded to Respondent FDIC, and that Respondent FDIC, at the national office, would be providing a response to the bargaining request.

In a letter dated March 5, 1991, the personnel director of Respondent FDIC refused to bargain, based solely on the Respondents' belief that the Union had not been validly certified as the exclusive bargaining representative.

III. Positions of the Parties

A. The General Counsel

The General Counsel maintains that "the sole issue raised by the [complaint] is whether Respondents violated the law by failing and refusing to negotiate over the impact and implementation of the non-renewals of temporary LG employees assigned to the [DoL] at the [Oklahoma City CO]." General Counsel's brief at 4. The General Counsel acknowledges that the Respondents' initial decision not to renew the employment of LG employees involved the exercise of a management right pursuant to section 7106(a)(2) of the Statute. Nevertheless, the General Counsel contends that the Respondents had an obligation to pursue bargaining over the procedures to be observed in connection with the implementation of that decision and over appropriate arrangements for employees adversely affected by such non-renewals under section 7106(b)(2) and (3) of the Statute.

The General Counsel argues that the non-renewal of LG employees involved a change in conditions of employment. The General Counsel claims that the "overwhelming likelihood that the appointment of an LG employee assigned to the [Oklahoma City CO] would be renewed during the time period in question effectively turned the reappointment process into a bureaucratic formality, and a legitimate expectation of continued employment past the one-year appointment period was created for each and every LG employee." Id. at 12. The General Counsel asserts that management's notification to the 13 employees that their appointments would not be renewed, and the subsequent discontinuation of their employment, represented a change in working conditions for those employees and for those LG employees at the Oklahoma City CO who might foreseeably be subjected by management to the same action.

The General Counsel further argues that the change with respect to those LG employees whose employment was not renewed during April and May 1991 involves a matter that goes to the heart of their conditions of employment: from being employed to unemployed. In this regard, the General Counsel cites Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 41 FLRA 690 (1991) (Ogden), where the Authority found that the placement of on-call employees in a non-pay status involved a change in conditions of employment for those employees. The General Counsel noted the Authority's statement that "[i]n our view, when an employee's status changes from being paid for working to not working and not being paid, such a change constitutes a change in conditions of employment whether it results from the termination of on-call employment or a RIF." General Counsel's brief at 14 (quoting 41 FLRA at 697). The General Counsel contends that the employment situation of temporary employees is analogous to "the predetermined and predictable termination of employment" for on-call employees. Id.

The General Counsel contends that in view of this change in working conditions, which was greater than de minimis, the Union was entitled to prior notice of the change and the opportunity to negotiate prior to implementation. The General Counsel also contends that the Respondents cannot rely on the alleged existence of any policies or practices that predate the Union's certification as the exclusive representative to excuse its refusal to bargain. The General Counsel rejects the premise that because in the past management treated LG employees as it saw fit without negotiating with a union, management should be permitted to continue those practices after the Union's certification. In this regard, the General Counsel notes the significant increase in the number of LG employees assigned to the Oklahoma City CO whose appointments were not renewed in 1991 as compared to 1990. The General Counsel maintains that if the Union had had the opportunity, it might have attempted to present proposals concerning a wide range of impact and implementation matters.

The General Counsel also contends that the case should be viewed as involving a Union-initiated demand for bargaining over on-going management actions regarding non-renewals or terminations of LG employees. The General Counsel notes that there was no impediment to pursuing Union-initiated bargaining over LG non-renewals because there was no collective bargaining agreement covering the subject.

The General Counsel argues that the excepted service status of LG employees does not preclude negotiations. The General Counsel contends that negotiations over procedures to be followed in connection with the non-renewal of LG employees would be consistent with other negotiable protections available for excepted service employees. In support of this position, the General Counsel cites National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 67-69 (1991) (IRS), where the Authority found negotiable certain union proposals that gave nonpreference eligible excepted service employees the right to grieve disciplinary and adverse actions. The General Counsel argues that although temporary appointments limited to two years or less are "arguably" not covered by the Civil Service Due Process Amendments, Pub. L. No. 101-376, 104 Stat. 461 (1990) (the Due Process Amendments), in IRS the Authority was "not troubled" by the fact that the union's proposals did not draw such a distinction. General Counsel's brief at 25. The General Counsel further contends that the Union's ability to negotiate procedural matters relating to the non-renewal of LG employees would not interfere with the Respondents' right to discipline or terminate those employees.

As a remedy, the General Counsel seeks a cease and desist order as well as certain affirmative actions, including the return of the status quo as of February 1991, a make-whole remedy for the 13 LG employees whose employment was not renewed during April and May 1991, and a bargaining order requiring the Respondents to negotiate with the Union over the Respondents' failure to renew the employment of any LG employees assigned to the Oklahoma City CO from February 1991 to the present. The General Counsel also seeks a nationwide posting of a Notice.

B. The Respondents

The Respondents first contend that the expiration of the temporary appointments of the 13 LG employees in April and May 1991 did not give rise to a bargaining obligation because there was no actual change in conditions of employment. The Respondents argue, therefore, that they were not obligated to provide the Union with prior notice or an opportunity to negotiate over the procedures to be observed in connection with the expiration of these appointments or the appropriate arrangements for employees whose appointments expired.

The Respondents argue that it has always been DoL's practice to allow these appointments to expire as its needs dictate and that the appointments of LG employees may be terminated or non-renewed for any reason at all, except for illegal discrimination. Because the employees know the duration of their appointment at the beginning of their appointment period, the Respondents contend that the expiration of such an appointment does not represent a negotiable change in conditions of employment or existing practice.

Further, the Respondents contend that conditions of employment, as defined in section 7103(a)(14) of the Statute, may be established by past practice and that an agency is obligated only to maintain practices that existed prior to the certification of a union. The Respondents argue that conditions of employment are to be viewed "dynamically, over a period of time" and that the "status quo [sic] against which the alleged change is considered must take account of any regular and consistent past pattern of changes in employee status[.]" Respondents' brief at 23. The Respondents assert that one such established practice was the periodic non-renewal of the appointments of temporary LG employees. The Respondents contend that they merely continued this existing condition of employment after the Union was certified and that, therefore, the expiration of LG appointments did not represent any change in the conditions of employment for those employees. The Respondents cite in support of their position National Labor Relations Board v. Katz, 369 U.S. 747 (1962) (Katz); National Labor Relations Board v. Southern Coach & Body Company, 336 F.2d 214 (5th 1964) (Southern Coach); and Robert A. Gorman, Labor Law, 450-54 (1976).(2)

Secondly, the Respondents contend that the negotiations requested by the Union over procedures for selecting which appointments would not be renewed would be contrary to law. The Respondents note that the temporary LG employees at issue are excepted service employees who are essentially "at will" employees, with no due process protections. Respondents' brief at 25. In this regard, the Respondents argue that excepted service employees may be discharged without cause, without prior notice, and without a termination hearing. The Respondents contend that the courts have held that excepted service LG employees have no legitimate claim of entitlement to continued employment and that the Merit Systems Protection Board (MSPB) has held that it lacks jurisdiction over the expiration of an LG employee's appointment because the expiration of a temporary appointment is not an adverse action appealable to the MSPB.

The Respondents further contend that they do not have an obligation to bargain over the creation of a grievance procedure permitting a challenge by excepted service employees to the termination or non-renewal of appointment actions. The Respondents maintain that any agreement reached over selection procedures for the non-renewals or involuntary terminations of excepted service LG employees would permit grievances over alleged breaches of that agreement through a negotiated grievance procedure. The Respondents note that the Due Process Amendments altered the general rule that nonpreference eligible excepted service employees have no right of administrative or judicial review of adverse personnel actions, but did not alter that rule for temporary employees serving pursuant to short-term excepted service appointments. The duty to bargain, the Respondents argue, may not be used as "a bootstrap to overcome explicit limitations established by Congress to protect the prerogatives of the Respondents as employers." Id. at 28.

The Respondents maintain that in enacting the Statute, Congress did not intend that procedural protections for excepted service employees be established through collective bargaining. The Respondents cite American Federation of Government Employees, AFL-CIO, Council of Marine Corps Locals, Council 240 and U.S. Department of the Navy Headquarters, U.S. Marine Corps, Washington, D.C., 39 FLRA 839 (1991) (Marine Corps) and Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410 (1991) (Provision 4) (Mare Island) for the proposition that temporary employees are not afforded the statutory protections of chapter 75 of Title 5.(3) The Respondents contend that the status of temporary employees in Mare Island and Marine Corps is identical to the status of the LG employees at issue in this case.

The Respondents further assert that negotiations related to the establishment of selection procedures for non-renewal of LG employees constitute an attempt to change the Respondents' Schedule A authority, a matter that is specifically provided for by law. The Respondents argue that negotiations over Union proposals in this area would be contrary to their LG authority, which provides that the Respondents may decide not to renew the appointment of LG employees for any reason other than illegal discrimination.

The Respondents also contend that such negotiations would directly interfere with management's right to determine the numbers, types, and grades of employees or positions assigned to an organizational subdivision pursuant to section 7106(b)(1) of the Statute. In support of this contention, the Respondents cite Overseas Education Association and U.S. Department of Defense, Office of Dependents Schools, 45 FLRA 1185 (1992) (Proposals 6 and 7) (Office of Dependents Schools), where the Authority found nonnegotiable proposals that would have required management to convert the status of employees with temporary appointments to permanent appointments under certain circumstances.

Finally, the Respondents contend that because the request to negotiate was directed to management at the Oklahoma City CO, which is not the level of exclusive recognition, the Respondents were not obligated to negotiate. The Respondents maintain that they had not agreed to any local level bargaining. In support of this defense, the Respondents cite Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA 1409 (1991) (Wright-Patterson). The Respondents argue that Wright-Patterson "specifically indicates that in a national bargaining unit, to be effective, a request to bargain must be made at the national level unless authorization to bargain is delegated to the local union and the agency agrees to local level bargaining." Respondents' brief at 33 (emphasis in original).

The Respondents contend that if a violation of the Statute is found, the only appropriate relief would be the posting of an appropriate notice and a retroactive bargaining order that would address appropriate arrangements for the 13 LG employees adversely affected by the April and May 1991 non-renewals at the Oklahoma City CO. The Respondents contend that a requirement that the DoL negotiate over each expiration of a temporary appointment would prevent the DoL from utilizing its staffing authority and would directly interfere with management's rights under section 7106(b)(1) of the Statute because any delay in negotiations could give the employees an additional appointment period pending completion of bargaining. The Respondents also maintain that any relief that would extend beyond the 13 employees specified in the complaint would go beyond the scope of the Union's request for negotiations at issue in this case.

IV. Analysis and Conclusions

We find that the Respondents violated section 7116(a)(1) and (5) of the Statute as alleged.

A. The Non-renewals of Temporary Appointments Changed Conditions of Employment

The issue in this case is not whether the non-renewals or termination of employment of the temporary LG employees concern the conditions of employment of those employees. Rather, the issue concerns whether the Respondents changed conditions of employment of temporary LG employees when they did not renew their temporary appointments. We find that, by their actions, the Respondents changed the conditions of employment of the affected temporary LG employees.

In Ogden we addressed an analogous issue concerning the placement of on-call employees in a nonpay status. In that case, as here, the agency had the right to change the status of the employees as a condition of their employment, and the employees in both cases were informed of these conditions of employment at the time of their hiring.(4) We concluded in Ogden that because the placement of on-call employees in a nonpay status removed the employees from the payroll, the respondent had changed the conditions of employment of those employees. We found that removal from a payroll, whether pursuant to the implementation of a RIF, a furlough, or by placement in a nonpay status, constituted a change in affected employees' conditions of employment. Because temporary LG employees are removed from the payroll when their appointments are not renewed, we conclude, consistent with our finding in Ogden, that the non-renewal of appointments of temporary LG employees is a change in conditions of employment for those affected employees.

We reject the Respondents' contention, based on Katz and Southern Coach, that there has been no change in conditions of employment because the Respondents were merely continuing the status quo that existed prior to the Union's certification. In Katz, the Supreme Court agreed with the National Labor Relations Board that the employer had unlawfully made unilateral changes in terms and conditions of employment without bargaining with the union. Of particular note here, the Court held that the employer had unlawfully granted merit increases without bargaining because the merit raises "were in no sense automatic, but were informed by a large measure of discretion." 369 U.S. at 746. In Southern Coach, the court held that the employer had not unlawfully changed its conditions of employment by continuing to make wage increases that the court found to be "automatic" and by making promotions that involved no discretionary raises in pay. 336 F.2d at 217-18. The situation before us is analogous to that before the Supreme Court in Katz concerning the unilateral implementation of merit raises. Although the Respondents may have continued the practice of not renewing the appointments of certain temporary LG employees based on workload considerations, the record establishes that in 1991, as in past years, many of the LG appointments in Oklahoma City CO were renewed. Indeed, in April and May 1991, 30 of the 44 LG employees whose appointments expired received renewed appointments.

The record shows that the Respondents exercise a large measure of discretion in deciding whether or not to renew an LG employee's appointment. According to the stipulated facts, "management evaluates the need for new LG appointments and assesses the time period for such new appointments . . . based on work-load considerations." Stipulation, paragraph 38. With regard to the decisions not to renew appointments at issue in this case, Respondent Oklahoma City CO considered the grade level of the employees in the section and the assignment of assets to be liquidated. However, as the assets to be liquidated can be reassigned from one employee to another, the assignment of such work would not significantly limit the Respondents' discretion in selecting employees for non-renewal and the non-renewal of a specific LG employee would not be automatic. Accordingly, we find that the Respondents' reliance on Katz and other private sector cases does not support their position in the circumstances of this case.

B. Procedures and Appropriate Arrangements Concerning Non-Renewals of Temporary Appointments Are Within the Scope of Collective Bargaining

We find that because the non-renewals of the appointments of temporary LG employees did not constitute either disciplinary or adverse actions, the Respondents were obligated to bargain over otherwise negotiable procedures to be observed in connection with those non-renewals and appropriate arrangements for employees adversely affected by the non-renewals. Although we have no specific proposals before us on which to make negotiability determinations, we also find that such negotiations would not necessarily infringe on management's rights under section 7106(b)(1) of the Statute.

Before the passage of the Due Process Amendments, several courts determined that nonpreference eligible excepted service (NEES) employees could not obtain the procedural protection of negotiated grievance procedures to contest actions for unacceptable performance and adverse actions. These courts noted that Congress denied NEES employees the administrative notice and appeal procedures available under the Civil Service Reform Act of 1978 (CSRA) for preference eligible and competitive service employees. Consequently, the courts held that affording NEES employees access to negotiated grievance procedures to contest actions for unacceptable performance and adverse actions was inconsistent with applicable law. See United States Department of Health and Human Services v. FLRA, 858 F.2d 1278, 1284 (7th Cir. 1988); Department of the Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467 (D.C. Cir. 1989); Department of Health and Human Services, Region IX, San Francisco, California v. FLRA, 894 F.2d 333 (9th Cir. 1990) (per curiam). The courts have held that, prior to the passage of the Due Process Amendments, the status of temporary employees was identical to the status of NEES employees. See Marine Corps, 39 FLRA at 845; Horner v. Lucas, 832 F.2d 596 (Fed. Cir. 1987). The Due Process Amendments "extend to certain employees in the excepted service who are not preference eligibles the same administrative notice and appeals procedures currently provided employees in the competitive service and preference eligible employees in the excepted service." H.R. Rep. No. 328, 101st Cong., 2d Sess. 1 (1990). However, the Due Process Amendments did not extend those protections to temporary employees. See Marine Corps, 39 FLRA at 845; Mare Island, 38 FLRA at 1429. Accordingly, the procedural protections of the CSRA remain unavailable to temporary employees.

The non-renewal of a temporary LG appointment is not, however, an action for unacceptable performance or an adverse action. The Federal Personnel Manual (FPM) defines a "Termination-Expiration of Appointment" as a "separation action initiated by the agency to end employment on the not-to-exceed date of a temporary appointment." FPM SU 296-33, S31-2.g. The FPM defines "termination" as a "nondisciplinary separation action by the agency." Id. at S31-2.e. In contrast, the FPM defines "adverse action" as "a personnel action considered unfavorable to employee, including removal, suspension, furlough and reduction in grade or pay taken by an agency against an employee." Id. at S31-2.m. See also Berger v. Dept. of Commerce, 3 MSPR 198, 199-200 (1980) (the MSPB held that the expiration of a term appointment is not an adverse action). The Respondents do not claim that the termination or non-renewal of temporary employees falls within that definition. See Veterans Administration, and American Federation of Government Employees, Local 2798, 24 FLRA 447, 447 n.1 (1986) (the Authority found that it had jurisdiction to review an arbitrator's award concerning the termination of the grievant's appointment on the expiration date specified in his appointment because the termination did not concern a matter relating to a removal under 5 U.S.C. § 4303 or § 7512).

Accordingly, we find that the case law denying temporary employees access to negotiated grievance procedures to contest actions for unacceptable performance or adverse actions does not encompass the non-renewals of temporary LG employees' appointments at issue in this case. Therefore, we conclude that the Respondents were obligated to negotiate over the procedures to be observed in connection with the non-renewals and appropriate arrangements for those employees adversely affected by such non-renewals, unless such negotiations were otherwise prohibited by law.

We reject the Respondents' contention that negotiations related to the establishment of selection procedures would be contrary to their Schedule A authority because it would grant the temporary LG employees an illegal entitlement beyond the expiration of their appointments and interfere with the Respondent's ability to staff the DoL with temporary positions in a manner that addresses the temporary nature of liquidation work. The Respondents have not explained how bargaining over the impact and implementation of the decision not to renew a specific number of temporary LG employees would be contrary to their Schedule A authority or would excessively interfere with that authority. In this regard, the Union does not seek to extend the appointments of temporary employees or to bargain over management's decision to terminate a certain number of temporary LG employees based on workload considerations.

We also disagree with the Respondents' contention that such negotiations would directly interfere with management's right to determine the numbers, types, and grades of employees or positions assigned to an organizational subdivisions pursuant to section 7116(b)(1) of the Statute. Office of Dependents Schools, relied on by the Respondents, is inapposite. In contrast to that case, here the Union is not seeking to convert the status of employees from temporary to permanent appointments. Instead, the Union is merely seeking negotiations over the procedures to be observed in connection with the non-renewals and appropriate arrangements for employees adversely affected by such non-renewals. We see no basis on which to deny the Union the right to engage in such impact and implementation bargaining.(5)

C. The Local Union President's Bargaining Request

The Respondent contends that it was not obligated to negotiate with the local Union president because: (1) the level of exclusive recognition is at the national level; (2) the parties had not agreed to local level negotiations; and (3) the request was made by the local Union president to local management. We disagree and find that in the circumstances of this case the Respondents were obligated to negotiate with the local Union president.

When exclusive recognition is at the national level, as it is in this case, an effective request to bargain must be made by the exclusive representative at the level of recognition unless authorization to bargain has been delegated to a local union and the parties have agreed to local level bargaining. Wright-Patterson, 39 FLRA at 1417. As we recently held, however, when local matters pertaining to only one or more facilities within a comprehensive bargaining unit are proposed in negotiations at the level of recognition, such proposals are within the obligation to bargain. U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993).

In this case, when the local Union president, who had proper authority to negotiate on behalf of the exclusive representative, requested bargaining, Respondent Oklahoma City CO forwarded that request to Respondent FDIC. In its response, Respondent FDIC's only stated reason for refusing to bargain was the belief that the Union had not been validly certified as the exclusive bargaining representative, a defense that was shown to be unfounded. Federal Deposit Insurance Corporation, 40 FLRA 775 (1991), enforced, No. 91-1207 (D.C. Cir. Sept. 1, 1992). In Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA 1381, 1390-91 (1991), the Authority found an obligation to bargain at the local level in a nationwide unit where there was no evidence that the respondent's refusal to bargain had been based on a defense that the union was seeking bargaining at the wrong level or that the union representative did not have the proper authority to bargain. Similarly, we conclude here that the Respondents cannot now successfully argue as a defense that they were privileged to refuse to bargain about the termination of LG appointments at the Oklahoma City CO because the bargaining request was made at the wrong level.

Finally, we conclude that, for purposes of this decision, the Union's bargaining demand was in response to the Respondents' non-renewal of the 13 identified temporary LG employees in April and May 1991, at the Oklahoma City CO. We note that, in fact, the bargaining demand was not limited to the 13 affected employees, but, rather, that it requested negotiations that would concern "procedures to be followed . . . pursuant to FDIC's on-going reduction in [DoL] staff at the [Oklahoma City CO]." Stipulation, Exhibit 15. Nonetheless, the amended complaint alleges that the Respondents violated the Statute by not renewing temporary appointments "[d]uring approximately February and April 1991[.]" Stipulation, Exhibit 4. We are constrained by the allegations in the complaint. Thus, the complaint allegation put the Respondents on notice that the hearing would concern the non-renewal of specific LG appointments; it does not permit a finding that the local Union president's bargaining demand was a Union-initiated request for bargaining over the broader topic of "'on-going' action by management." General Counsel's brief at 21. Accordingly, we conclude that our inquiry must be limited to the Respondents' non-renewals of 13 temporary LG appointments in April and May 1991 at the Oklahoma City CO.

In sum, we conclude that the non-renewal of appointments of temporary LG employees is a change in those employees' conditions of employment and that negotiations over procedures to be observed in connection with such non-renewals and appropriate arrangements for the affected employees are within the scope of collective bargaining. Further, we conclude that the Respondents were obligated to provide the Union with prior notice of those changes and to bargain with the Union's properly delegated representative over the impact and implementation of the changes. Accordingly, we find that the Respondents violated section 7116(a)(1) and (5) of the Statute when they failed to do so.

V. Remedy

In its exceptions, the General Counsel requests a status quo ante remedy. In order to justify a return to the status quo ante to remedy a failure to bargain over the impact and implementation of a change in conditions of employment, the Authority will, on a case-by-case basis, "carefully balanc[e] the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy." Federal Correctional Institution, 8 FLRA 604, 606 (1982) (FCI). Under the criteria set forth in FCI, the Authority considers, among other things, (1) whether, and when, notice was given to the union by the agency; (2) whether, and when, the union requested bargaining; (3) the willfulness of the activity's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. Id. at 606.

There is no question in this case that the Respondents failed to give notice of the non-renewals to the Union; that the Union timely requested bargaining over the matter; that the Respondents took this action willfully (indeed, the Respondents defended their refusal to bargain by asserting that they had no bargaining obligations toward the Union in any respect); and that the effect on the adversely affected employees was substantial. Nonetheless, in the circumstances of this case, we have determined that a status quo ante remedy is not appropriate. In this regard, we note that the criteria set forth in FCI are not all-inclusive. Rather, on a case-by-case basis, the Authority may rely on "other things" in determining the appropriateness of a status quo ante remedy. Id. at 606.

In this case, Respondent Oklahoma City CO had the right not to renew the appointments of the 13 LG employees, conditioned only on its obligation to bargain with the Union over the impact and implementation of those actions. Moreover, the parties stipulated that the Respondent failed to renew those appointments because of a decrease in the work of specific sections and departments of the Oklahoma City CO and based on projections for the subsequent 12 months. Therefore, it is clear that 13 of the LG appointments in the Oklahoma City CO would not have been renewed in April and May of 1991, and that, because of the nature of those appointments, the failure to renew could not have been challenged. It is also clear, as we have found, that the Respondents did not fulfill their statutory obligation to bargain over the impact and implementation of those non-renewals. However, there is no way to ascertain which of the employees would have been terminated or otherwise affected had the parties bargained and reached an agreement. Indeed, based on the outcome of any bargaining, it is possible that the Respondent would have been justified in not retaining the same 13 employees. In view of the foregoing, and taking into account the nature of the Respondents' mission and hiring authority, we conclude that a status quo ante remedy is not appropriate in the particular circumstances of this case.

Because it is possible that certain of the LG employees whose appointments were not renewed would have been retained had the Respondents met their obligation to bargain, however, we do not believe that a prospective bargaining order will adequately address the losses suffered by those employees. Instead, we conclude that the unfair labor practice can best be remedied by the imposition of a retroactive bargaining order, requiring that any employee be made whole who, based on any agreement reached by the parties, is determined to have suffered a loss of pay, benefits, allowances, or differentials because of the Respondents' unlawful conduct. See, for example, Department of Veterans Affairs, Veterans Administration Medical Center, Decatur, Georgia, 46 FLRA 339, 346 (1992), petition for review filed, No. 92-1654 (D.C. Cir. Dec. 18, 1992). Such an order is designed to remedy the effects of the unfair labor practice on individual employees, a fundamental purpose of the Statute. U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York, 37 FLRA 570, 582 (1990), enforced, 949 F.2d 1169 (D.C. Cir. 1991). See also, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and U.S. Department of Health and Human Services, Social Security Administration, Hartford District Office, Hartford, Connecticut, 37 FLRA 278, 292 (1990) (where it is clear that some employees have been affected by an unlawful refusal to bargain, but there is no way to ascertain their identity through compliance proceedings, the parties can establish through bargaining the causal nexus between the unlawful refusal to bargain and the loss of pay or benefits that is required by the Back Pay Act, 5 U.S.C. § 5596).

Further, we will order a nationwide posting of the Notice. In our view, a broad posting is necessary to fully remedy the unfair labor practice for the following reasons. First, it was the Respondent FDIC, at the level of exclusive recognition, that unlawfully refused to bargain. Further, its refusal was based on the assertion that the Union had not been validly certified as the exclusive bargaining representative of the two nationwide units. At the time of the parties' stipulation in this case, there were 15 other DoL consolidated offices. The parties further stipulated that LG employees are hired locally by the consolidated offices and that, nationwide, the appointments of numerous LG employees are not renewed. Thus, it is clear that the unlawful policy established by the Respondent FDIC at the national level that is at issue in this case could have a deleterious effect on LG employees in the bargaining unit of nonprofessional LG employees throughout the country. See U.S. Department of Treasury, Customs Service, Washington, D.C. and Customs Service, Region IV, Miami, Florida, 37 FLRA 603, 604-05 (1990) (in expanding the Notice area recommended by the judge, the Authority held that Notices provide evidence that rights guaranteed under the Statute will be vigorously enforced and, therefore, that it is appropriate in certain circumstances to require that Notices be posted in areas other than the particular locations where violations occurred.)

VI. Order (6)

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Federal Deposit Insurance Corporation, Washington, D.C. and the Federal Deposit Insurance Corporation, Oklahoma City, Oklahoma, shall:

1. Cease and desist from:

        (a) Failing to provide the National Treasury Employees Union, the exclusive representative of certain of their employees, with prior notice of changes in the condition of employment of employees in the bargaining unit of nonprofessional employees represented by such exclusive representative.

        (b) Refusing to bargain with the National Treasury Employees Union, the exclusive representative of certain of their employees, concerning procedures in selecting temporary LG employees at the Oklahoma City Consolidated Office for the non-renewals of their appointments and appropriate arrangements for employees affected by such non-renewals.

        (c) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

        (a) Upon request of the National Treasury Employees Union, the exclusive representative of certain of their employees, negotiate over any negotiable proposals concerning procedures to be observed in connection with their failure to renew the appointments of temporary LG employees whose appointments expired in April and May 1991 at the Oklahoma City Consolidated Office and appropriate arrangements for employees affected by such non-renewals, and apply agreements reached pursuant to such negotiations retroactively to the date of their refusal to bargain.

        (b) Based upon agreements reached pursuant to negotiations, make whole any bargaining unit employee for any losses suffered by such employee because of the failure to provide the National Treasury Employees Union prior notice and an opportunity to bargain over procedures to be observed in connection with the failure to renew the appointments of temporary LG employees at the Oklahoma City Consolidated Office and appropriate arrangements for affected employees.

        (c) Post at all their facilities, nationwide, where employees in the bargaining unit of nonprofessional employees represented by the National Treasury Employees Union are located, 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 Chairman of the Federal Deposit Insurance Corporation, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

        (d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail to provide the National Treasury Employees Union, the exclusive representative of certain of our employees, with prior notice of changes in the conditions of employment of employees in the bargaining unit of nonprofessional employees represented by such exclusive representative.

WE WILL NOT refuse to bargain with the National Treasury Employees Union, the exclusive representative of certain of our employees, concerning procedures in selecting temporary LG employees at the Oklahoma City Consolidated Office for the non-renewals of their appointments and appropriate arrangements for employees affected by such non-renewals.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.

WE WILL, upon request of the National Treasury Employees Union, the exclusive representative of certain of our employees, negotiate over any negotiable proposals concerning procedures to be observed in connection with our failure to renew the appointments of temporary LG employees whose appointments expired in April and May 1991 at the Oklahoma City Consolidated Office and appropriate arrangements for employees affected by such non-renewals, and apply agreements reached pursuant to such negotiations retroactively to the date of our refusal to bargain.

WE WILL, based upon agreements reached pursuant to negotiations, make whole any bargaining unit employee for any losses suffered by such employee because of our failure to provide the National Treasury Employees Union prior notice and an opportunity to bargain over procedures to be observed in connection with our failure to renew the appointments of temporary LG employees at the Oklahoma City Consolidated Office and appropriate arrangements for affected employees.

_________________________

(Agency)

Date: ______________ By: __________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204 and whose telephone number is: (303) 844-5224.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. In Federal Deposit Insurance Corporation, 34 FLRA 50 (1989), the Authority rejected the FDIC's challenge to the appropriateness of including temporary LG employees in the bargaining unit. In agreement with the Regional Director, the Authority found that such employees "possess a sufficient expectation of continued employment and should be included in the unit." 34 FLRA at 55. In Federal Deposit Insurance Corporation, 40 FLRA 775 (1991), enforced, No. 91-1207 (D.C. Cir. Sept. 1, 1992), the Authority held that the FDIC had violated section 7116(a)(1), (5) and (8) of the Statute by refusing to accord the Union its statutory status as the exclusive representative of the employees in the two units.

2. <