PART I - REMEDIAL AUTHORITY UNDER THE STATUTE
Q. #1: What is the statutory authority for the Federal Labor Relations Authority to order agencies and unions to take remedial action for committing unfair labor practice violations?
Sections 7105 (g)(3) and 7118 (a)(7) of the Statute contain the Authority's remedial power. In sum, the Authority is empowered to: (1) issue cease and desist orders; (2) require parties to negotiate a contract and to give it retroactive effect; (3) order reinstatement of an employee with backpay; and (4) order any remedial action necessary to carry out the purposes and policies of the Statute.
Q. #2: What are the limitations on the Authority's remedial powers?
The Authority and the courts have concluded that Congress intended to provide the Authority with broad remedial power. The Statute's broad grant of remedial power to the Authority is tempered only by reference to the purpose of the Statute, which embodies the balance of interests between and among employees, unions, and agencies, and consistency with external law.
Q. #3: Does the Statute's management rights clause limit the Authority's remedial power?
No. Section 7106 of the Statute (the management rights clause) does not diminish the Authority's remedial powers. This clause limits only the scope of collective bargaining under the Statute. For example, the Authority will specifically name in its order the title of the appropriate agency or union official to sign a remedial notice.
Q. #4: What is the purpose of a remedy for an unfair labor practice violation?
The essential purpose of an Authority remedial order is "to restore, so far as possible, the status quo that would have obtained but for the wrongful act and to deter future misconduct." In other words, the purpose of a remedy is to recreate the conditions and relationships that would have been had there been no unfair labor practice. The deterrence of future violative conduct also is an essential purpose of a remedy. Remedies, however, must not be punitive, and the Authority may not direct a respondent to perform an illegal act.
Q. #5: What are the Authority's remedy principles?
All remedies ordered by the Authority, therefore, must meet these standards, referred to as the remedy principles:
a. be consistent with external law;
b. be reasonably necessary to effectively recreate the conditions and relationships with which the unfair labor practice interfered;
c. effectuate the policies of the Statute, including the deterrence of future violative conduct; and
d. are not punitive.