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21:0786(98)CA - EPA and AFGE -- 1986 FLRAdec CA

[ v21 p786 ]
The decision of the Authority follows:

 21 FLRA No. 98
 Charging Party
                                            Case No. 3-CA-2767
                                                         (16 FLRA 602)
                       DECISION AND ORDER ON REMAND
                         I.  Statement of the Case
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit "for
 a fuller explanation of its choice of remedy or for reconsideration of
 its decision."
                         II.  History of the Case
                       A.  The Authority's Decision
    On November 30, 1984, the Authority issued its Decision and Order in
 Environmental Protection Agency, 16 FLRA 602, adopting the decision of
 its Administrative Law Judge that the Respondent had violated section
 7116(a)(1) and (5) of the Statute by implementing procedures for the
 establishment of performance standards and critical elements of unit
 employee positions without notifying and bargaining in good faith with
 the Charging Party (the Union) over such procedures, and by failing and
 refusing to negotiate over ground rules for such negotiations or
 conditioning any meeting or negotiations on the submission by the Union
 of specific, substantive, written proposals concerning the performance
 standard-setting process.
    To remedy the unfair labor practice found, the Judge had recommended
 that the Respondent be ordered to bargain over ground rules for
 negotiations and concerning procedures for the establishment of
 performance standards and critical elements of employee positions, and
 to give retroactive effect to any agreement reached.  The Authority
 modified the Judge's recommended Order by deleting the requirement that
 retroactive effect be given to any agreement reached as a result of
 bargaining, stating that "it is the opinion of the Authority that a
 prospective bargaining order will fully remedy the violations found."
                          B.  The Court's Opinion
    On February 5, 1986, the Court issued its opinion in American
 Federation of Government Employees, AFL-CIO v. FLRA, No. 85-1057 (D.C.
 Cir. Feb. 5, 1986).  The Court, acknowledging that the Authority has
 broad discretion to order remedies in unfair labor practice cases, and
 acknowledging that an explanation for its choice of remedy is not
 necessary in all cases, concluded that it could not discern from the
 Authority's decision in this case why the Judge's recommended remedial
 order had been modified.  The Court thus remanded the case.
                      III.  Reconsideration on Remand
                         A.  The Judge's Decision
    The Respondent pointed out in its brief to the Judge that it had
 taken the action here in question in response to a Congressional mandate
 contained in 5 U.S.C. Section 4302, and implementing regulations
 published by the Office of Personnel Management, which required the
 agency to issue revised performance standards by a specific date.  In
 view of this Congressional mandate, the General Counsel's brief to the
 Judge did not request a status quo ante remedy.  The General Counsel
 also acknowledged that "overriding exigencies involved" would make a
 status quo ante remedy inappropriate.  Nonetheless, the General Counsel
 urged that the Judge should order retroactive application of agreed upon
 terms, rather than a prospective bargaining order, because prospective
 bargaining orders are inadequate in general and a prospective bargaining
 order here would necessarily limit the Union's opportunity to bargain
 about the effects of any of the changes already made.  The Judge did not
 have before him specific allegations with regard to the effect that
 retroactive application of agreed upon terms might have upon the
 operations of the agency.  The Judge granted the remedy requested by the
 General Counsel, stating without supplying any rationale that he agreed
 such an order would best effectuate the purposes and policies of the
                       B.  Positions of the Parties
    In its exceptions to the Judge's decision, the Respondent argued that
 to make retroactive changes in already established performance standards
 would have the effect of negating a Congressional mandate;  that such a
 remedy would seriously interfere with the effectiveness of the agency's
 operations;  and that, in any event, none of the changed performance
 standards had been applied yet to any of the employees represented by
 the Union.
    In its opposition to the Respondent's exceptions, the Union again
 argued as it did before the Judge that the nature of the Respondent's
 violation justified the granting of a status quo ante remedy.  It also
 argued alternatively that the retroactive remedy ordered by the Judge
 was acceptable, and took issue with the factual and legal arguments of
 the Respondent.
                               IV.  Analysis
    The Authority notes that the Respondent was acting under a
 Congressional mandate requiring the issuance of revised performance
 standards by a specific date, and that the General Counsel conceded that
 a return to the status quo ante was unwarranted.  The Authority finds
 convincing the Respondent's arguments with regard to the potential
 disruption that ordering retroactive effect to any bargain reached would
 have on the agency's operations.  Taking all the circumstances of this
 case into consideration, we adhere to our original determination that a
 prospective bargaining order will best effectuate the purposes and
 policies of the Statute.
    A prospective bargaining order is neither inadequate nor inherently
 restrictive of the parties' rights to address the effects on unit
 employees of changes already made, as argued by the General Counsel.
 Rather, it allows the parties the flexibility to bargain freely with
 regard to how past actions may have affected any given employee.
 Bargaining which explores such effects may itself reveal situations that
 call for retroactive remedial action, about which the parties are free
 to agree.  Indeed, the parties might be less reluctant and more
 expeditious in reaching an overall agreement if they retain the
 flexibility to determine which provisions will be given retroactive
 effect.  Further, since the issuance of our original Decision in this
 case, the Authority has had occasion to deal generally with the question
 of whether to grant remedies that require retroactive application of
 bargaining terms.  In Federal Aviation Administration, Washington, D.C.,
 19 FLRA NO. 59 (1985), the Authority adopted the Judge's recommendation
 to deny such a requested remedy, stating that:
          Where, as here, the basic remedy requires the parties to engage
       in negotiations, it is entirely possible that an impasse may occur
       during bargaining and the matter will ultimately be sent to the
       Federal Service Impasses Panel (FSIP) for resolution.  In that
       event, the FSIP, when considering impassed proposals, would
       properly consider a proposal for retroactive application and
       imposing such a requirement at the present time would deprive the
       FSIP of that option and thereby impair the flexibility the FSIP
       requires to execute its statutory function.
    Moreover, the remedy ordered in this case is similar to the type of
 remedy the Authority has ordered for similar violations of the Statute.
 For example, in Internal Revenue Service (District, Region, National
 Office Units), 16 FLRA 904 (1984), the Authority adopted its Judge's
 recommended order refusing to require retroactive application of the
 parties' negotiation because "(b)y ordering retroactivity as part of the
 remedy I would essentially be imposing a term of a proposal on (the
 agency), a matter I am not disposed to do";  in Internal Revenue
 Service, 16 FLRA 845 (1984), the Authority rejected its Judge's
 recommended order requiring the agency to give retroactive effect to any
 agreement reached with the union in circumstances where the agency had
 unlawfully failed to give the union adequate prior notice of the
 implementation of its Taxpayer Compliance Measurement Program and
 refused to bargain as requested on the procedures to be utilized in
 implementing the program or concerning appropriate arrangements for
 affected employees;  in Department of Health and Human Services,
 Washington, D.C., 16 FLRA 288 (1984), the Authority refused to order
 that any agreement reached between the parties as a result of further
 bargaining over reduction-in-force (RIF) procedures be applied on a
 retroactive basis, concluding that an order requiring the agency to
 bargain concerning negotiable RIF procedures would best effectuate the
 purposes and policies of the Statute;  and in Department of the
 Treasury, U.S. Customs Service, Region VIII, San Francisco, California,
 9 FLRA 606, 608 n.3 (1982), aff'd, 732 F.2d 703 (9th Cir. 1984), the
 Authority refused to adopt the ALJ's recommended order to the extend
 that it would have required giving retroactive effect to whatever final
 agreement the parties would reach concerning starting and quitting times
 and lunch hours of newly-established tours of duty because "(s)uch an
 order would be inconsistent with the Authority's conclusion that a
 status quo ante remedy is unwarranted in the circumstances of this case,
 and, further, would be speculative."
    The circumstances of this case are different from circumstances in
 which the Authority has ordered parties to give retroactive effect to
 the provisions of a collective bargaining agreement, a remedy which the
 Authority may, but is not required, to order.  5 U.S.C. Section
 7118(a)(7)(B) (1982).  In this regard, the Authority has ordered a
 retroactive application remedy in a case where the agency has refused to
 bargain on a specific proposal which was substantially identical to a
 proposal previously found by the Authority to be within the duty to
 bargain.  Veterans Administration Regional Office (Buffalo, New York),
 10 FLRA 167 (1982).  The Authority has also ordered an agency to
 incorporate into the parties' collective bargaining agreement the
 specific terms of an interest-arbitration award retroactively to the
 date the award became final and binding.  U.S. Air Force, Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151
 (1984), aff'd, 775 F.2d 727 (6th Cir. 1985), in which the agency had
 unlawfully refused to implement the arbitration award to which no timely
 exceptions had been filed and which therefore became final and binding;
 the refusal to comply with the award constituted a failure to cooperate
 in impasse procedures.
    Thus, the Authority has ordered such a remedy in cases involving
 violations of the Statute by refusing to bargain over specific proposals
 which had previously been held by the Authority to be within the duty to
 bargain or by refusing to implement the specific terms of an
 interest-arbitration award to which timely exceptions were not filed,
 rather than cases where specific proposals were not at issue, and where
 the Authority issued a prospective bargaining order to remedy the
 violation, as it did in this case.
                              V.  Conclusion
    The Authority is of the view that the rationale of the Federal
 Aviation Administration and Internal Revenue Service cases cited above
 applies equally to the circumstances of this case.  We also conclude
 that to grant the requested remedy and thus require retroactive
 application of the parties' bargaining terms may unnecessarily disrupt
 or impair the efficiency and effectiveness of the agency's operations.
 Accordingly, we reaffirm our Decision and Order in Environmental
 Protection Agency, 16 FLRA 602 (1984).
    Issued, Washington, D.C., May 13, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier, III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY