[ v27 p304 ]
27:0304(41)CA
The decision of the Authority follows:
27 FLRA No. 41
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
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
Charging Party
Case No. 1-CA-30218
(20 FLRA No. 68)
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, No. 85-1827 (D.C.
Cir. Jan. 16, 1987). The case concerns whether the refusal-to-bargain
violation in Department of Transportation, 20 FLRA 548 (1985) (DOT)
warrants a remedy of backpay. /1/
II. History of the Case
A. Facts
In 1983 the Respondent informed representatives of the Charging Party
(the Union) of a planned reduction-in-force (RIF) which would affect a
unit employee (Mr. Panek) in Albany, New York. The Union requested
bargaining on the implementation of the RIF. The Respondent refused the
Union's request and implemented the RIF without bargaining. As a result
of the RIF, Panek was separated from employment, after refusing a
transfer to Saranac Lake, New York. The refusal to bargain gave rise to
the complaint, alleging that the Respondent had violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute).
B. Administrative Law Judge's Decision
In DOT, the Judge rejected Respondent's view that it had no duty to
bargain on the implementation of the RIF and concluded that Respondent's
refusal to bargain violated the Statute. To remedy the violation, the
Judge recommended that the Respondent be ordered to cease and desist
from this conduct, to rescind the RIF and reinstate Panek upon request,
and to bargain on the implementation of the RIF as requested by the
Union. He concluded that a backpay remedy, requested in connection with
Panek's separation, would be inappropriate. 20 FLRA 561.
C. Authority's Decision
On review, the Authority affirmed the Judge's decision that the
Respondent violated the Statute by refusing to bargain and adopted the
essence of his recommended remedy, agreeing with the Judge that the
violation did not warrant a backpay remedy. 20 FLRA 548 n.2.
D. Court's Decision
In Professional Airways Systems Specialists, the court granted the
petitions for review of DOT and the companion case of Federal Aviation
Administration, Washington, D.C., 20 FLRA 273 (1985) (FAA). The court
concluded that the Authority had applied a per se rule under the Back
Pay Act by denying backpay in "impact and implementation" cases, and the
court held that a per se rule in such cases is contrary to the Act.
Slip op. at 2. Accordingly, the court remanded both cases to enable the
Authority to fashion a proper test for awarding backpay in impact and
implementation cases. The court expressed no opinion on whether the
employees in the cases before it are entitled to backpay. Slip op. at
11.
III. Analysis
In Federal Aviation Administration, 27 FLRA No. 36 (1987) (FAA II) --
our decision on the remand in the companion case -- we reconsidered the
issue of backpay in cases of a refusal to bargain over "impact and
implementation," and we formulated an approach which we believe to be
consistent with the Back Pay Act and the purposes and policies of the
Statute. In sum, we recognized that a backpay award under the Back Pay
Act requires determinations that:
(1) an employee was affected by an unjustified or unwarranted
agency personnel action;
(2) the unjustified personnel action resulted in a withdrawal
or reduction in pay, allowances, or differentials of the employee;
and
(3) the withdrawal or reduction would not have occurred but for
the unjustified action.
In FAA II we specifically noted that 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 is shown that the agency personnel action
which gave rise to the violation resulted in a withdrawal or reduction
in the pay, allowances, or differentials of employees. In FAA II we
decided that 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 bargaining ordered to correct the unfair labor practice,
subject to the parties agreeing otherwise. Slip op. at 6.
IV. Conclusion: the backpay remedy in DOT, 20 FLRA 548
In DOT is was shown that the Respondent refused to bargain on the
implementation of the RIF as required by the Statute. Accordingly, it
is established that unit employees were affected by an unjustified or
unwarranted personnel action. It was also shown that the unjustified
personnel action -- implementation by the agency of a reduction-in-force
in the Albany sector without bargaining as required by the Statute --
directly resulted in the separation from employment of Panek and a total
withdrawal of his pay, allowances, and differentials. Applying to this
case the approach we explained in detail in FAA II and have summarized
here, we conclude that the Authority's prior order in this case should
be supplemented with a backpay remedy. Since the bargaining order
previously issued, which required Respondent to rescind its RIF and
reinstate Panek upon request, it remains to require Respondent (absent
agreement by the parties otherwise) to provide backpay to Panek
consistent with the results of the ordered bargaining. The backpay
remedy is limited to the period of Panek's separation as a result of
Respondent's unilateral action.
V. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the 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 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 Mr. Andrew
Panek, who suffered a withdrawal of his pay, allowances, and
differentials because of his separation as a result of the
reduction-in-force of the Federal Aviation Administration, Airways
Facilities Sector 810, Albany, New York on July 23, 1983, to the
extent that bargaining in compliance with the Authority's Order in
DOT, 20 FLRA 548 (1985), resulted in an agreement that he should
not have been separated.
2. Post copies of the attached Notice, on forms furnished by
the Authority, at the facilities of 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.
Upon receipt, the forms shall be signed by the Administrator of
the Federal Aviation Administration, or a designee, 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 I, 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) The Union has requested permission to file a brief. Because the
issue of a backpay remedy is adequately presented by the decision of the
court remanding this case, we deny the Union's request.
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 Mr. Andrew Panek, who suffered a
withdrawal of his pay, allowances, and differentials because of his
separation as a result of the reduction-in-force at the Federal Aviation
Administration, Airways Facilities Sector 810, Albany, New York on July
23, 1983, to the extent that bargaining in compliance with the
Authority's Order in DOT, 20 FLRA 548 (1985), resulted in an agreement
that he should not have been separated.
... (Agency or 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 I, Federal Labor Relations Authority, whose address is:
10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046 and
whose telephone number is: (617) 565-7280.