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The decision of the Authority follows:
50 FLRA No. 76
FEDERAL LABOR RELATIONS AUTHORITY
U.S. GEOLOGICAL SURVEY
CARIBBEAN DISTRICT OFFICE
SAN JUAN, PUERTO RICO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO, 15TH DISTRICT
DECISION AND ORDER
June 26, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
The Administrative Law Judge issued the attached decision, finding that the Respondent violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by terminating ten temporary employees because the Union threatened to file an unfair labor practice charge. The Judge also found that the announcement of the terminations constituted a separate violation of section 7116(a)(1) of the Statute.
No exceptions were filed to the Judge's findings of the statutory violations. The General Counsel filed exceptions to the Judge's failure to order reinstatement for the affected employees and to the limited period of time for which he ordered backpay. The Respondent did not file an opposition to the General Counsel's exceptions.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusion that the Respondent violated section 7116(a)(1) and (2) of the Statute. However, we modify the Judge's recommended Order to provide for, among other things, reinstatement of the affected employees and backpay as appropriate.
II. Judge's Decision
The facts are fully set forth in the Judge's decision. To remedy the violations of the Statute, the Judge recommended backpay for the employees from the date of their termination on July 10, 1993, until September 30, 1993, the end of the Federal Government's fiscal year. The Judge concluded that there was "no reasonable expectancy" that they would be retained beyond the end of the fiscal year based on the Respondent's financial situation, regardless of when the employees' 1-year appointments were due to expire. Judge's Decision at 8.
III. Positions of the Parties
The General Counsel excepts to the Judge's failure to order reinstatement and argues that the Judge's decision to terminate backpay as of September 30, 1993, is not supported by record evidence. The General Counsel also argues that issues pertaining to the reinstatement and backpay of the unlawfully terminated employees are more appropriately addressed at the compliance stage of this proceeding.
As noted, the Respondent did not file exceptions to the Judge's decision or an opposition to the General Counsel's exceptions.
IV. Analysis and Conclusions
We conclude that the Judge erred in failing to order reinstatement and find that his limited backpay order is not supported by the record. Unlawful discharges in violation of section 7116(a)(1) and (2) of the Statute normally are remedied by a return to the status quo ante, including a requirement that a respondent offer reinstatement to affected employees and make them whole for any losses suffered. For example, U.S. Department of Labor, Employment and Training Administration, San Francisco, California, 43 FLRA 1036 (1992) (Department of Labor). Although the Authority has not previously addressed reinstatement and backpay orders with regard to temporary employees, we find that a status quo ante order is warranted here to fully remedy the Respondent's unlawful conduct, with the understanding that the Respondent will have an opportunity at the compliance stage of the proceedings to establish a basis for limiting the scope of the remedy, as discussed below.
In the absence of specific precedent under the Statute, the Authority may look to private sector law for guidance. U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office, Gallup, New Mexico, 45 FLRA 646, 652 (1992). Specifically, "[w]here there are comparable provisions under the Statute and the NLRA [National Labor Relations Act], decisions of the National Labor Relations Board (NLRB) and the courts interpreting the NLRA have a 'high degree of relevance' to similar circumstances under the Statute." Id., quoting U.S. Department of Labor, Office of the Solicitor, Arlington Field Office, 37 FLRA 1371, 1381 (1990).
In the private sector, the temporary status of discharged employees does not affect the requirement that a respondent offer them reinstatement to their former or substantially equivalent positions or, if those positions no longer exist, to their former or substantially equivalent positions when such positions become available. See Satra Belarus, Inc. v. NLRB, 568 F.2d 545, 549 (7th Cir. 1978) (although court found that discharged employees had temporary status, it concluded that reinstatement and backpay were appropriate remedies to place them in the position they would have been in but for the discriminatory discharges); cf. Cabana Motel, 222 NLRB 394, 395 (1976) (having established that seasonal employees were discriminatorily discharged, the General Counsel was not required to prove that they "would have been employed at present" to merit full reinstatement to their former or substantially equivalent positions). A respondent may demonstrate in compliance proceedings that reinstatement is not appropriate by demonstrating that, for lawful reasons, it would have discharged the employees at some point after the date of their unlawful termination. Cf. Great Western Produce, Inc., 299 NLRB 1004, 1006 (1990); Dean General Contractors, 285 NLRB 573 (1987).
The pertinent portion of section 8(a)(3) of the NLRA is substantially identical to section 7116(a)(2) of the Statute.(*) Both recognize that an employer commits an unfair labor practice when it discriminates in connection with conditions of employment and such action encourages or discourages membership in a labor organization. Given the similarity of the law in both sectors, we find it appropriate to use private sector precedent as a guide in determining the proper remedy in the Federal sector for the unlawful discharge of temporary employees. In view of that precedent, and the Authority's previous approach to remedying unlawful discharges of permanent employees, we conclude that a status quo ante remedy, including reinstatement, should be ordered in this case.
The record does not support the Judge's finding that temporary employees had no reasonable expectancy of continued employment after September 30, 1993. Although the Judge found that there was a budget deficit at the end of the fiscal year, the record shows that the Respondent previously experienced such deficits and there is no evidence that in those years any employees were terminated before the expiration of their appointment periods. Further, the record indicates that after the Respondent decided to terminate the employees, the Respondent's financial situation improved. We note, in this regard, the Judge's finding that prior to this current period of budgetary problems, the Respondent's past practice had been to reappoint temporary employees. Consequently, we do not adopt the portion of the Judge's recommended order based on his conclusion that the temporary employees would have been terminated on September 30, 1993. See Department of Labor, 43 FLRA at 1040; United States Marine Corps, Marine Corps Logistics Base, Barstow, California, 5 FLRA 725 (1981). We modify the order to provide a make whole remedy, including backpay for the period beginning on July 10, 1993, and ending on the date that the employees are reinstated or the date established by the Respondent as the date on which their employment would have been lawfully terminated. Of course, if the Respondent establishes that the employees would by now have been lawfully terminated, reinstatement will not be required.
As in the private sector, considerations affecting reinstatement of discharged employees and computation of their backpay are matters for consideration during compliance proceedings. Cf. Federal Deposit Insurance Corporation, Washington, D.C. and Federal Deposit Insurance Corporation, Oklahoma City, Oklahoma, 48 FLRA 313, 331 n.6 (1993), petition for review denied, No. 93-1694 (D.C. Cir. Dec. 22, 1994) (per curiam, mem.); United States Department of the Treasury, Internal Revenue Service, Austin Compliance Center, Austin, Texas, 44 FLRA 1306, 1324 (1992).
In sum, we order the Respondent to reinstate, with backpay, the ten temporary employees who were unlawfully discharged and to make them whole, subject to a showing by the Respondent in compliance that, for lawful reasons, it would have discharged the employees or not renewed their appointments at some point after July 10, 1993.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the U.S. Geological Survey and Caribbean District Office, San Juan, Puerto Rico, shall:
1. Cease and desist from:
(a) Discriminating against temporary employees by discharging them because the Union threatened to file an unfair labor practice charge.
(b) Interfering with, restraining or coercing its employees by informing them that it will discharge employees if an unfair labor practice charge is filed.
(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights protected by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Offer Hector Rivera, Maria del Carmen Alvarez, Enrique Aviles, Livia Montalvo, Jerry Ortiz, Katherine Nieves-Peres, Wilfredo Montana, Miquel A. Soto, Virgon Negron, and Dyhalma Malava immediate and full reinstatement to their former positions or to substantially equivalent positions or, if such positions do not currently exist, to their former or substantially equivalent positions when such positions become available, consistent with applicable laws and regulations, without prejudice to any of their rights and privileges, and make them whole, consistent with applicable laws and regulations, for any loss of pay or benefits they may have suffered by reason of their unlawful termination, provided that no such obligations will survive the date on which the employment of each employee lawfully would have been terminated.
(b) Post at its facilities where bargaining unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Caribbean District Office Chief, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
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 NOT discriminate against our employees by discharging them because the Union threatened to file an unfair labor practice charge.
WE WILL NOT interfere with, restrain or coerce our employees by informing them that we will discharge employees if an unfair labor practice charge is filed.
WE WILL NOT, in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL offer Hector Rivera, Maria del Carmen Alvarez, Enrique Aviles, Livia Montalvo, Jerry Ortiz, Katherine Nieves-Peres, Wilfredo Montana, Miquel A. Soto, Virgon Negron and Dyhalma Malava immediate and full reinstatement to their former positions or to substantially equivalent positions or, if such positions do not currently exist, to their former or substantially equivalent positions when such positions become available, consistent with applicable laws and regulations, without prejudice to any of their rights and privileges, and make them whole, consistent with applicable laws and regulations, for any loss of pay or benefits they may have suffered by reason of their unlawful termination, provided that no such obligations will survive the date on which the employment of each employee lawfully would have been terminated.
Date: ______________ By:____________________________
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Boston Regional Office, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200 and whose telephone number is: (617) 424-5730.
(If blank, the decision does not have footnotes.)
*/ Section 8(a)(3) of the National Labor Relations Act provides, in pertinent part:
It shall be an unfair labor practice for an employer--
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .
Section 7116(a)(2) of the Statute provides:
For the purpose of this chapter, it shall be an unfair labor practice for an agency--
(2) to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment . . . .