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55 FLRA No. 21
Air Force Flight Test Center, Edwards Air Force Base and AFGE, Local 3854, AFL-CIO, Case No. SF-CA- 50232 (Decided January 15, 1999)
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute by making changes to a skilled trades program for aircraft mechanics (the rivetized workforce program or the program) without first providing the Union with notice and an opportunity to bargain. The Judge found that the Respondent violated section 7116(a)(1) and (5) as alleged. The Judge also found that the Respondent had not unilaterally discontinued career-ladder promotions, a policy that entitled covered employees to noncompetitive promotions. The Authority adopted the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision.
Preliminarily, the Authority concluded that the charge was timely filed. Noting that an administrative law judge has considerable discretion under the Authority's Regulations in determining the relevancy and admissibility of evidence, the Authority concluded that the Judge did not abuse his discretion by declining to admit evidence and testimony.
As to the merits the case, the Authority stated the analytical framework it would apply to this case. It noted that under section 7116(a)(1) and (5) of the Statute, agencies must give unions notice and an opportunity to bargain over the impact and implementation of any change in conditions of employment, provided that the change has more than a de minimis effect on unit employees' conditions of employment. In cases alleging such violations, the Authority initially determines whether the General Counsel has proven the allegations in the complaint by a preponderance of the evidence, as required by section 2423.18 of the Authority's Regulations. Here, the Authority found that the preponderance of the evidence showed that the Respondent made a unilateral change in conditions of employment for employees in the program. The Authority also found that the Judge erred when he concluded that Respondent did not unilaterally discontinue a career-ladder policy under which mechanics in the program were entitled to noncompetitive promotion to the WG-12 Level.
The Authority found that the Judge's remedy granting a status quo ante relief was appropriate. The Authority noted that the purpose of status quo ante relief is to place parties in the positions that they would have occupied had there been no unlawful conduct.
Lastly, in excepting to the award of retroactive promotions and backpay, the Respondent conceded that the Judge could have appropriately order such remedies in the case of an unwarranted personnel action. However, the Respondent argued that the award was improper because the affected employees did not perform work at the WG-12 level at the time of the November 1994 meeting. Also, the Respondent argued that the Judge's award amounted to a "classification" of the position. The Authority concluded that these assertions were without merit.
The Authority noted that in determining that an award of backpay was warranted for the four employees in question, the Judge correctly applied the analytical framework for determining whether backpay remedies are appropriate in cases involving an agency's refusal to bargain over impact and implementation. The Authority concluded that the unilateral elimination of noncompetitive promotions to the WG-12 level constituted an unwarranted personnel action that was appropriately remedied by retroactive promotions and backpay.