27:0230(36)CA - FAA, Washington, DC and PASS -- 1987 FLRAdec CA

 27 FLRA No. 36
 
 FEDERAL AVIATION ADMINISTRATION, 
 WASHINGTON, D.C.
 Respondent
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS 
 SPECIALISTS, MEBA, AFL-CIO
 Charging Party
 
                                            Case No. 5-CA-40069 
                                              (20 FLRA No. 33)
 
                       DECISION AND ORDER ON REMAND
 
                         I.  Statement of the Case
 
    This case is before the Authority on remand from the United States
 Court of Appeals for the District of Columbia Circuit in Professional
 Airways Systems Specialists, MEBA, AFL-CIO v. FLRA, 809 F.2d 855 (D.C.
 Cir. 1987).  The case concerns whether the remedy for the Respondent's
 failure to fulfill its statutory duty to bargain in Federal Aviation
 Administration, Washington, D.C., 20 FLRA 273 (1985), warrants an award
 of backpay.
 
                         II.  History of the Case
 
                                 A.  Facts
 
    In 1983 the Respondent informed the Charging Party (the Union) of a
 reorganization in its Great Lakes region which would change unit
 employees' conditions of employment.  The Union requested bargaining on
 the procedurs used to implement the reorganization and the
 reorganization's impact on unit employees.  The Respondent refused to
 bargain and implemented the reorganization.  As a result of the
 reorganization, unit employees experienced a change in work hours and a
 reduction in premium pay.  The refusal to bargain gave rise to the
 complaint, alleging that the Respondent had violated section 7116(a)(1)
 and (5) of the Statute.
 
                  B.  Administrative Law Judge's Decision
 
    In FAA, Washington, D.C., 20 FLRA 273, the Judge rejected
 Respondent's view that it had no duty to bargain on the implementation
 and concluded that the Respondent had violated the Statute as alleged.
 To remedy the violation the Judge recommended that the Respondent be
 required to cease and desist from this conduct.  He also recommended
 that the Respondent be ordered to return to its previous organization,
 bargain on the implementation as requested by the Union, and make
 employees whole for any losses of premium pay they suffered because of
 the reorganization.
 
                         C.  Authority's decision
 
    The Authority affirmed the Judge's conclusion that the Respondent had
 violated the Statute, but modified portions of the recommended remedy,
 concluding that the make-whole remedy was inappropriate.  20 FLRA 273,
 274 n.
 
    The Authority stated that in order for a backpay order to be
 authorized under the Back Pay Act (5 U.S.C. Section 5596), there must be
 a determination that an employee has been adversely affected by an
 unjustified or unwarranted personnel action and a determination that
 "but for" the improper action, the employee would not have suffered a
 withdrawal or reduction in pay, allowances, or differentials.  The
 Authority, noting that the Judge had recommended the make-whole remedy
 without applying the "but for" test and the lack of evidence in the
 record to support such finding, found that an award of backpay was
 unwarranted.
 
                           D.  Court's decision
 
    In Professional Airways Systems Specialists, the court granted the
 petitions for review of FAA, Washington, D.C. and a companion case.  /1/
 The court agreed with the Authority's formulation of a "but for" test in
 awarding backpay, finding that the "test is consistent with the language
 of" the Back Pay Act and "appropriately effects the causal nexus" which
 is mandated by the Act.  Slip op. at 6.  However, the court concluded
 that the Authority had applied a per se rule under the Act by denying
 backpay in cases where the agency-employer had the right to make the
 substantive change that it made, but where the agency committed an
 unfair labor practice by failing or refusing to bargain over the "impact
 and implementation" of the change.  The court specifically held that a
 per se rule in impact and implementation cases is contrary to the Back
 Pay Act.  Slip op. at 2.  The court emphasized that its holding was
 limited.  The court simply decided that the Back Pay Act permits a
 backpay award to employees who have been affected by an agency personnel
 action taken without the impact and implementation bargaining required
 by the Statute, so long as the employees meet the burden of establishing
 a causal nexus between the unjustified action and the withdrawal or
 reduction of pay, allowances, or differentials.  Accordingly, the court
 remanded the cases to enable the Authority to fashion a proper test for
 awarding backpay in impact and implementation cases.  Slip op. at 11.
 
    In remanding the cases, the court also rejected any per se rule in
 favor of backpay awards in these types of cases.  The court expressed no
 opinion on whether the employees in the cases before it are entitled to
 backpay.  Slip op. at 11.  The court directed the Authority to allow for
 the difficulty in establishing that bargaining which never occurred by
 virtue of an unfair labor practice would have prevented the withdrawal
 or reduction in pay, allowances, or differentials.  The court noted,
 however, that of course not every "procedural violation" must result in
 a backpay award.
 
                              III.  Analysis
 
    In accordance with the decision of the court, we have further
 considered the issue of backpay in cases of a refusal to bargain over
 "impact and implementation," and we have formulated an approach which we
 believe to be consistent with the Back Pay Act and the purposes and
 policies of the Statute.  We explain the approach in section A, below.
 In section B, we apply this approach to the unfair labor practice in
 FAA, Washington, D.C.
 
                             A.  The approach
 
             (1) "Unjustified or unwarranted personnel action"
 
    A decision on whether an employee is entitled to an award of backpay
 under the Act first requires a determination that the employee was
 affected by an unjustified or unwarranted personnel action.  Under
 Authority precedent, this is established when it is determined that the
 employee was affected by an unfair labor practice under the Statute.
 United States Department of Housing and Urban Development, Region VI and
 United States Department of Housing and Urban Development, Region VI,
 San Antonio Area Office, 24 FLRA No. 84 (1986).  This includes a
 refusal-to-bargain violation under section 7116(a)(5).  See Veterans
 Administration, Washington, D.C. and Veterans Administration Medical and
 Regional Office Center, Fargo, North Dakota, 22 FLRA No. 69 (1986).  In
 refusal-to-bargain cases, the unjustified personnel action is not merely
 the agency's refusal to bargain.  The unjustified action within the
 meaning of the Back Pay Act is the agency's action of changing the
 conditions of employment of unit employees without providing the
 exclusive representative with an opportunity to bargain as required by
 the Statute.
 
  (2) "Withdrawal or reduction of all or part of the pay, allowances, or
 differentials of the employee"
 
    When it has been determined that the employee was affected by an
 unjustified or unwarranted personnel action, it must be further
 determined that the unjustified personnel action resulted in the
 withdrawal or reduction in the employee's pay, allowances, or
 differentials within the meaning of the Act.  For example, in FAA,
 Washington, D.C., it must be established that the unjustified personnel
 action -- implementation by the agency of a reorganization without
 bargaining as required by the Statute -- resulted in the withdrawal or
 reduction in the pay, allowances, or differentials of affected
 employees.
 
                          (3) The "but for" nexus
 
    When it has been determined (1) that an employee was affected by an
 agency's unjustified personnel action, and (2) that the agency action
 resulted in a withdrawal or reduction of the employee's pay, allowances,
 or differentials, the final determination necessary for an award of
 backpay is that but for the unjustified personnel action, the employee
 otherwise would not have suffered the withdrawal or reduction.  In some
 unfair labor practice cases, this causal relationship is clearly
 established.  In these cases, we will continue to specifically order
 backpay as corrective action for the unfair labor practice involved to
 make the employee whole.  See San Antonio Area Office, 24 FLRA No. 84.
 
    As noted by the court in PASS, in refusal-to-bargain cases it is
 difficult to establish that the bargaining which should have occurred
 would have prevented any of the loss in pay, allowances, or
 differentials.  In such a case it cannot be established with certainty
 that the withdrawal or reduction would not have occurred "but for" the
 refusal to bargain.  However, denial of a backpay remedy on this basis
 would imply that the bargaining could not have prevented or lessened the
 monetary loss of the affected employees.  This implication conflicts
 with the expectation of Congress that bargaining as required by the
 Statute would affect the manner in which such agency actions are
 implemented.  See PASS, slip op. at 7 n.8.  Moreover, backpay remedies
 can be ordered in these cases consistent with the "but for" test.
 
    When an agency has been shown to have violated the Statute by
 refusing to bargain, the Authority orders the agency to bargain
 consistent with its obligation under the Statute.  For example, FAA,
 Washington, D.C., 20 FLRA 273.  When the ordered bargaining is
 completed, with assistance from the Federal Service Impasses Panel, if
 necessary, the effect of the bargaining on the withdrawal or reduction
 in pay, allowances, or differentials of affected employees will be
 known.  Accordingly, where an agency has violated the Statute by
 refusing to bargain regarding a change in a condition of employment and
 the change resulted in a withdrawal or reduction in the pay, allowances,
 or differentials of affected unit employees, an order directing
 bargaining and the payment of backpay consistent with the outcome of the
 bargaining is an appropriate remedy for the agency's violation.  Because
 the result of the ordered bargaining will most closely approximate the
 result which would have occurred if the agency had initially bargained
 as required, an agreement providing for adjustment of the withdrawal or
 reduction in pay, allowances, or differentials of affected employees
 will satisfy the Back Pay Act requirement for a causal nexus.
 
    In sum, a backpay award under the Back Pay Act requires a
 determination (1) that an employee was affected by an unjustified or
 unwarranted personnel action, (2) that the unjustified or unwarranted
 personnel action resulted in a withdrawal or reduction in the pay,
 allowances, or differentials of the employee, and (3) that the
 withdrawal or reduction would not have occurred but for the unjustified
 action.
 
    The first requirement is met when it is established that employees
 were affected by an agency unfair labor practice, including a
 refusal-to-bargain violation.  The second requirement is met when it has
 been shown that the agency action which gave rise to the violation
 resulted in a withdrawal or reduction in the pay, allowances, or
 differentials of employees.  If these requirements are met in a
 refusal-to-bargain case, we will conclude that the violation warrants a
 remedy of backpay.  This remedy will require an award of backpay which
 is consistent with the results of the ordered bargaining, subject to the
 parties agreeing otherwise.  Any disputes over whether the ordered
 bargaining resulted in any agreement which eliminated or reduced the
 withdrawal or reduction in pay, allowances, or differentials can be
 raised as a compliance matter.
 
    In our view, this approach is consistent with and best implements the
 mandates of the Back Pay Act in cases of this sort.  Further, this
 approach is consistent with the purposes and policies of the Statute.
 It implements the expectation of Congress that bargaining as required by
 the Statute carries the prospect of modifying the implementation of such
 agency changes.  The approach is based on the requirement that agencies
 give exclusive representatives advance notice of changes which affect
 conditions of employment and is consistent with the Authority's policy,
 discussed in Environmental Protection Agency, 21 FLRA No. 98 (1986), of
 ensuring that the parties and the Federal Services Impasses Panel retain
 the flexibility they require to fashion agreements which are most
 appropriate for the parties' agreements circumstances.  Accordingly,
 prior Authority decisions concerning the application of backpay remedies
 in refusal-to-bargain cases which are inconsistent with the approach
 described in this decisiqon will no longer be followed.
 
                 B.  The remedy in FAA, Washington, D.C.
 
    In FAA, Washington, D.C., 20 FLRA 273, it was shown that the
 Respondent committed a refusal-to-bargain violation.  Accordingly, it is
 established that unit employees were affected by an agency unfair labor
 practice, which constitutes an unjustified or unwarranted personnel
 action.  It was also shown that the unjustified personnel action --
 implementation by the agency of a reorganization without bargaining as
 required by the Statute -- directly resulted in the withdrawal or
 reduction in the differential pay of unit employees.  Applying the
 approach we have explained to this case, we conclude that the
 Authority's prior order in the case should be supplemented with a
 backpay remedy.  Since the bargaining order previously issued, it
 remains to require the Respondent (absent the agreement of the parties
 otherwise) to provide backpay to any employees who suffered a withdrawal
 or reduction in differential pay because of the reorganization to the
 extent that the ordered bargaining eliminated or reduced any withdrawal
 or reduction in that differential pay.
 
                                IV.  Order
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Federal Aviation Administration,
 Washington, D.C., shall take the following affirmative action to
 effectuate the purposes and policies of the Statute --
 
    1.  Except as otherwise agreed by the Professional Airways Systems
 Specialists, MEBA, AFL-CIO, provide backpay to any employee who suffered
 a withdrawal or reduction in pay differentials because of the
 reorganization of the Great Lakes Region Air Route Control Centers on
 August 1, 1983, to the extent that bargaining in compliance with the
 Authority's Order in FAA, Washington, D.C., 20 FLRA 273 (1985),
 eliminated or reduced any withdrawal or reduction in pay differentials
 which was caused by the reorganization.
 
    2.  Post copies of the attached Notice, on forms furnished by the
 Authority, at the facilities of the Great Lakes Region Air Route Control
 Centers.  Upon receipt, the forms shall be signed by the head of the
 Great Lakes Region and shall be posted and maintained for 60 consecutive
 days in conspicuous places, including all places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure that these Notices are not altered, defaced, or covered.
 
    3.  Notify the Regional Director, Region V, Federal Labor Relations
 Authority, in writing within 30 days of the date of this Order, as
 required under section 2423.30 of the Authority's Rules and Regulations,
 of the steps which have been taken to comply with this Order.
 
    Issued, Washington, D.C., May 29, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) United States Department of Transportation, Federal Aviation
 Administration, Washington, D.C.; Federal Aviation Administration,
 Eastern Region, Jamaica, New York;  and Federal Aviation Administration,
 Airways Facilities Sector 810, Albany, New York, 20 FLRA 548 (1985).
 
 
 
 
 
 
 
                                 APPENDIX
 
                          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 provide backpay to any employee who suffered a withdrawal or
 reduction in pay differentials because of the reorganization of the
 Great Lakes Region Air Route Control Centers on August 1, 1983, to the
 extent that bargaining in compliance with the Authority's Order in FAA,
 Washington, D.C., 20 FLRA 273 (1985), eliminated or reduced any
 withdrawal or reduction in pay differentials which was caused by the
 reorganization and the Professional Airways Systems Specialists, MEBA,
 AFL-CIO, does not agree otherwise.
                                       (Activity)
 
    Dated:  . . .  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.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region V, Federal Labor Relations Authority, whose address is:
  175 W. Jackson Blvd., Suite 1359A, Chicago, Illinois 60604, and whose
 telephone number is:  (312) 353-6306.