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37 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

AND

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

HARTFORD DISTRICT OFFICE

HARTFORD, CONNECTICUT

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1164

(Charging Party)

1-CA-70346

DECISION AND ORDER

September 14, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions and cross-exceptions. The Respondent filed an opposition to the cross-exceptions.

The complaint alleged that the Respondent refused to bargain with the Charging Party and unilaterally changed the working conditions of unit employees by reassigning a field representative to a claims representative position without providing the Charging Party with an opportunity to negotiate over the impact and implementation of the reassignment.

The Judge concluded that the Respondent violated section 7116(a)(1) and (5) by unilaterally reassigning a unit employee from a field representative position to the Respondent's floor unit as a claims representative without completing bargaining with the Charging Party over the impact and implementation of the action. The Judge also concluded that a status quo ante order was warranted but that a back pay order was not required.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. After consideration of the Judge's Decision and the entire record, we adopt, in part, the Judge's findings, conclusions and recommended Order. We agree with the Judge that the Respondent violated section 7116(a)(1) and (5) and that the reassignment had more than a de minimis impact on the bargaining unit employees. However, we disagree with the Judge concerning the basis for the violation. We conclude that the Respondent's refusal to negotiate in good faith with the Charging Party related to the impact and implementation of the Respondent's decision to reassign an employee from a field representative position to a claims representative position rather than merely to the reassignment of the employee into the floor unit. Finally, while we agree with the Judge that a status quo ante order is warranted, we conclude, contrary to the Judge, that the scope of the Judge's bargaining order is too limited and that a backpay order is also warranted.

II. Background

The Hartford District Office administers Title II (Social Security) and Title XVI (Supplemental Security) of the Social Security Act involving the Retirement, Survivor, Disability and Health Insurance Programs, the Black Lung Program, and the Supplemental Income Program. This case involves claims representatives and field representatives who perform Title II work.

Claims representatives work in either the floor unit or the teleclaims unit. The floor unit is responsible for: authorizing and adjudicating claims; interviewing and advising the public of their rights and responsibilities; receiving and processing claims; determining the evidence and documents needed to support claims; assessing the credibility of evidence; assisting applicants with their appeal rights; and determining recipients' continued eligibility for benefits. On the other hand, the teleclaims unit is responsible for: interviewing, authorizing, and adjudicating claims by telephone; and performing in-depth research into manuals relating to relevant program application.

The working conditions of claims representatives and field representatives differ significantly. Claims representatives work in the Respondent's District Office performing the work described above. They are closely supervised, deal with applicants on a face-to-face basis, and are sometimes subject to the unruly and threatening behavior of applicants. In contrast, field representatives serve as the Respondent's principal contact with the public for the administration of the Title II programs, make public speeches, work with the media, write press releases, and perform about 80 percent of their work away from their duty station. They have no direct supervision, act on their own initiative subject to subsequent review, receive travel reimbursements, and earn overtime pay for giving speeches and seminars outside their normal work hours.

This case concerns the reassignment of Christopher Smith from a field representative position to a claims representative position. Before January 1985, Smith worked as a claims representative. Smith began working as a field representative in January 1985, first on a temporary basis and then permanently in January 1986. In June 1986, Smith was requested to work half-time performing claims representative duties while in his field representative position. On August 7, 1987, Robert Johnson, the Respondent's Hartford District Manager, told Smith that he would have to work full-time as a claims representative.

On Thursday, August 13, 1987, Thomas Kucab, the Respondent's Assistant District Manager, explained two management proposals to Walt Samuel, the Charging Party's representative. The first proposal involved changing the alphabetical responsibility designations for the work assignments handled by the employees in the floor unit. The second proposal concerned rotating certain claims representatives into the teleclaims unit, generally giving the first opportunity for such work to the claims representative who had been the longest "on the floor." It also designated Smith as a full-time claims representative in the floor unit. Kucab was not able to indicate whether Smith would be under the position description of a claims representative.

Later that same day, Samuel sent a memorandum to Kucab indicating that the Charging Party could not respond to the proposed rotations and the reassignment due to insufficient information concerning which position description Smith would be under. In that memorandum, Samuel stated that if Smith

remains under the field representative position description, the Union has no objection. However, if [Smith] has been returned to a claims representative position description, the Union would be forced to hold that, under the procedure for rotation that has operated for at least the past three years, [Smith] should be rotated into teleclaims.

ALJ Decision at 4.

In addition, Samuel requested formal bargaining on teleclaims rotation. Id. at 5. The next day, Friday, August 14, Kucab wrote Samuel that Smith would be under a claims representative position description but that Smith would not be assigned to the teleclaims unit at that time. On Monday, August 17, Smith began working full time as a claims representative in the Title II floor unit.

III. Administrative Law Judge's Decision

The Judge concluded that the Respondent violated section 7116(a)(1) and (5) by unilaterally reassigning Christopher Smith into the floor unit without completing bargaining with the Charging Party over the impact and implementation of the action. He rejected the Respondent's contention that the demand to bargain was unclear and found that the Charging Party clearly sought to bargain over the practice to be used to determine Smith's assignment. The Judge also found that the reassignment of Smith had more than a de minimis impact on bargaining unit employees because: (1) Smith's reassignment to the floor unit was not temporary; and (2) the work of the teleclaims unit and the floor unit with respect to employees' duties and their interaction with clientele was significantly different. Finally, the Judge found that the Charging Party's proposal, which was to rotate Smith into the teleclaims unit based on past practice, was negotiable because it did not directly interfere with management's right to define qualifications and to determine whether an employee met those qualifications.

The Judge also concluded that under the standards set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (Federal Correctional), a status quo ante order was appropriate because the record revealed that the Respondent: (1) gave the Charging Party only one day's notice before implementing the change; (2) did not provide the Charging Party with sufficient information; and (3) did not respond to the Charging Party's bargaining request. In addition, the Judge found that the failure to order a status quo ante remedy would result in Smith remaining in a significantly less desirable job. The Judge noted that a status quo ante remedy would not interfere with the Respondent's proposed training for computerization because the training period had passed.

Finally, the Judge concluded that a backpay order was not required, citing Federal Aviation Administration, Washington, D.C., 27 FLRA 230, 234 (1987) (FAA-II). The Judge found that, under the terms of the Back Pay Act, no award was justified because it was "not possible to ascertain how much, if any, overtime pay Smith may have earned if Respondent had not engaged in the unfair labor practice found herein." ALJ Decision at 8. Also, the Judge concluded that a backpay award could not be based on the denial of travel allowances.

IV. Positions of the Parties

A. The Respondent's Exceptions

The Respondent contends that the Judge erred in his characterization of the issue in this case. The Respondent argues that the issue concerns the reassignment of Smith from a field representative position to a claims representative position rather than the placement of Smith in the floor unit or the teleclaims unit, as stated by the Judge.

The first exception concerns the Judge's finding that the Charging Party's proposal regarding Smith is negotiable. The Respondent contends that the proposal violates management's rights to assign employees and to assign work. The Respondent argues that the proposal mandated that Smith be placed in the teleclaims unit and therefore removed management's discretion to determine the qualifications to perform such work and to determine which employees had such qualifications.

In its second exception, the Respondent takes issue with the Judge's finding that the impact of reassigning Smith to the claims representative position was more than de minimis. The Respondent argues that the impact of the decision to reassign Smith was no more than de minimis because: (1) the impact on Smith was minimal as he had been performing claims representative work on a part-time basis; (2) the remaining field representatives were minimally affected because management reduced the work to be done in the field; (3) neither position guaranteed overtime work; (4) Smith's work environment did not change, only the amount of time spent in the office setting increased; and (5) the degree of supervision differed only slightly for the positions.

Finally, the Respondent takes exception to the Judge's finding that a status quo ante remedy is warranted. The Respondent argues that such a remedy would be disruptive to the working operations of its office and would result in Smith being placed in a position which is of insufficient benefit to the Respondent.

B. The General Counsel's Opposition to the Respondent's Exceptions

The General Counsel contends that the Judge did not err in concluding that Smith's reassignment had more than a de minimis impact and that a status quo ante remedy is warranted. In support of this position, the General Counsel's post-hearing brief and the argument therein state that the reassignment was more than de minimis because the change in Smith's job duties was significant, permanent, and resulted in a limitation on future assignments for Smith and other bargaining unit employees. Regarding the status quo ante remedy, the General Counsel argues that the criteria for a status quo ante remedy set forth in Federal Correctional have been met, that is: (1) the Respondent failed to give the Charging Party notice on August 13, 1987, of Smith's reassignment; (2) the Charging Party submitted a request on that same day to bargain over the impact and implementation of the reassignment; (3) the Respondent refused the bargaining request; (4) the impact of the reassignment was significant; and (5) the disruption of returning to the status quo ante would not be significant because the training, raised as a concern by management, will have been completed.

The General Counsel contends that, even if the Charging Party's proposal is found to be nonnegotiable, the Respondent still acted unlawfully. The General Counsel argues that the Charging Party never had an opportunity to present proposals and negotiate to the full extent of the law because the Respondent implemented the reassignment before the Charging Party was informed of the full nature of the change, that is, that Smith would be reclassified from a field representative to a claims representative.

C. The General Counsel's Cross-Exceptions

In the first cross-exception, the General Counsel argues, in agreement with the Respondent, that the Judge erred in characterizing the "change" at issue in this proceeding as being the placement of Smith in the floor unit or the teleclaims unit. The General Counsel argues that the change at issue is broader and involves the reassignment of Smith from a field representative position to a claims representative position.

The second cross-exception concerns the Judge's conclusion that the change was implemented without completing bargaining. The General Counsel argues that it is inappropriate to direct that bargaining be completed when the Charging Party never had an opportunity to bargain over Smith's permanent reassignment to the claims representative position before it was implemented.

Third, the General Counsel contends that the Judge misapplied the criteria established in FAA-II for awarding backpay in refusal to bargain cases. The General Counsel argues that Smith routinely received overtime pay as a field representative, that he has received none as a claims representative, and that in refusal to bargain cases it is not necessary to establish in the record the precise amount of compensation lost in order to award backpay. The General Counsel further contends that the determination of the amount of overtime, if any, should be a matter left for compliance.

Finally, the General Counsel excepts to the portions of the Judge's Order that appear to limit the Respondent's bargaining obligation to the issue of Smith's assignment to the floor unit or the teleclaims unit within the claims representative position.

D. The Respondent's Opposition to the General Counsel's Cross-Exceptions

The Respondent contends that the Judge correctly found that the three requirements for a backpay remedy set forth in FAA-II had not been met and that a backpay remedy was not warranted. The Respondent argues that the General Counsel failed to establish: (1) the required nexus between an effect on Smith's pay, allowances, or differentials and his reassignment; and (2) the amount of overtime work Smith would have performed had he remained as a field representative.

V. Analysis and Conclusions

We agree with the Judge that the Respondent violated section 7116(a)(1) and (5) of the Statute and that the reassignment of Smith had more than a de minimis impact on the bargaining unit employees. However, we disagree with the Judge concerning the basis for the violation. We conclude that the Respondent refused to negotiate in good faith with the Charging Party over the impact and implementation of the Respondent's decision to reassign Smith from a field representative position to a claims representative position rather than solely the reassignment of Smith into the floor unit. We also agree with the Judge that a status quo ante order is warranted. Finally, we conclude, contrary to the Judge, that the scope of the Judge's bargaining order is too limited and that a backpay remedy is warranted.

A. The Basis for the Violation

We disagree with the Judge's finding that the Respondent violated section 7116(a)(1) and (5) of the Statute by "unilaterally assigning Smith into the Floor Unit without completing bargaining with the Union on the matter." ALJ Decision at 8. The complaint states that "the Respondent unilaterally changed the working conditions of bargaining unit employees by reassigning a field representative to a claims representative position." General Counsel Exhibit E at 3. In our view, the Judge's findings and conclusions are sufficient to support this allegation. In this regard, the Judge found that Smith was told on August 7 that he would be required to switch from field representative to claims representative work. It is clear that the Charging Party was not informed of this reassignment until August 13, after new work assignments had been drafted. ALJ Decision at 4. Moreover, the evidence regarding the loss of overtime and travel reimbursements related to the initial reassignment from field to claims, and not to the specific unit assignment within the claims representative position. Id. at 5. Therefore, we conclude that the violation in this case should be based on the Respondent's refusal to negotiate in good faith with the Charging Party over the impact and implementation of the Respondent's decision to reassign Smith from the field representative position to a claims representative position.

B. Negotiability of the Proposal

On August 13, 1987, the Respondent notified the Charging Party that management planned to reassign Smith from a field representative position to a claims representative position in the Title II floor unit. The Respondent requested a response from the Charging Party by the end of the day, as it wanted to implement the change the next morning. Before the close of business that same day, the Charging Party gave the Respondent a memorandum asking whether Smith would be reclassified from a field representative to a claims representative and requesting that "'no action be taken to implement the teleclaims rotation until the requested information is provided.'" ALJ Decision at 5. In that same memorandum, the Charging Party proposed that if Smith "'returned to a claims representative position description, the Union would be forced to hold that, under the procedure for rotation [based on seniority] that has operated for the past three years, he should be rotated into teleclaims.'" Id. at 4.

The Respondent contends that the proposal violates management's rights to assign employees and to assign work. The Respondent argues that the proposal mandated that Smith be placed in the teleclaims unit and removed management's discretion to determine the qualifications necessary to perform such work and which employees had such qualifications.

We agree with the Judge that the Charging Party's memorandum to the Respondent on August 13, 1987, involved a negotiable proposal. The Charging Party requested bargaining concerning the procedure to be used for determining which qualified employee would rotate into the teleclaims unit. The Charging Party's proposal does not directly interfere with management's right to determine the qualifications necessary to do teleclaims work or its right to determine which employees are qualified to do the teleclaims work. The Charging Party simply proposed that the Respondent follow the past practice of using seniority to determine the rotation of qualified claims representatives into the teleclaims unit. See Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 793 (1987), petition for review as to other matters filed sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1735 (D.C. Cir. Nov. 30, 1987), aff'd mem. as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, No. 87-1576 (D.C. Cir. Aug. 31, 1988) (requiring the use of seniority to determine the order of consideration for filling a vacancy where management finds that two or more employees are equally qualified for an assignment does not directly interfere with management's rights to assign and to select) (citing American Federation of Government Employees, AFL-CIO and Air Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613-14 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982)).

C. Status Quo Ante Remedy

When the Authority finds that an agency has failed to bargain over a change that gives rise to a bargaining obligation, the Authority must then decide what constitutes an appropriate remedy. Congress intended the Authority to exercise broad remedial powers similar to those exercised by the National Labor Relations Board in the private sector. The Authority's remedial powers include the discretion to grant status quo ante remedies where appropriate. See American Federation of Government Employees v. FLRA, 785 F.2d 333, 336-38 (D.C. Cir. 1986).

The Judge applied the criteria established in Federal Correctional and found that a status quo ante remedy was warranted under the circumstances of this case. Respondent's sole basis for objecting to the status quo ante remedy is the alleged disruption that the remedy would have on the Respondent's operations. In this regard, Respondent argues that it "has eliminated a number of initiatives in the field and concentrated its resources ... on serving the public in the office." Brief in Support of Exceptions at 30. Therefore, it contends that its operations would be disrupted if Smith were removed from the position as claims representative and placed in a position as a field representative, "without any duties or duties which are now of no sufficient benefit to the Government." Id. at 31. We do not find that Respondent has established a sufficient degree of disruption to its operations to outweigh the benefits of a status quo ante remedy. We emphasize that the reassignment affects only one employee and that Respondent is required to restore Smith to his former position only until it has satisfied its statutory obligation to bargain over the impact and implementation of its decision to reassign him. Thereafter, it is free, within the limits of its agreement with the Union, to reorder its priorities between field and claims work. Therefore, we conclude that the record does not establish that a status quo ante remedy would unduly disrupt or impair the efficiency and effectiveness of the Respondent's operations.

There is no basis in this record on which to conclude that a status quo ante remedy is inappropriate based on any of the other factors identified in Federal Correctional. Therefore, we conclude that a status quo ante remedy is appropriate. See Department of Health and Human Services, Social Security Administration, and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 952-53 (1990); Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, and Social Security Administration, Jamestown, New York District Office, Jamestown, New York, 34 FLRA 765, 771 (1990).

D. Scope of the Bargaining Order

The General Counsel argues that bargaining over the reassignment never took place and that the Judge's Order should be modified so that bargaining is not limited to whether Smith is placed in the floor unit or the teleclaims unit of claims representatives. We agree. The complaint in this case describes the issue as the Respondent's refusal to bargain in good faith concerning the "reassign[ment of] a field representative to a claims representative position . . . without providing . . . the Charging Party with an opportunity to negotiate over the impact and implementation of the reassignment." The record also establishes that the Charging Party wanted to bargain over the role of an employee's seniority and position description in making assignments to claims representative positions. Thus, the circumstances of this case indicate that it is appropriate to require bargaining over the impact and implementation of the reassignment of employees from field representative positions to claims representative positions rather than bargaining over merely the reassignment of Smith to either the floor unit or the teleclaims unit. See Department of Health and Human Services, Family Support Administration, 30 FLRA 346, 349 (1987) (change in duties and tasks of employees detailed to Task Force was significant and created a bargaining obligation); U.S. Customs Service, Washington, D.C., 29 FLRA 307, 326-27 (1987) (detailing employees to Contraband Enforcement Team had substantial impact on both employees selected and those not selected and required impact bargaining). Accordingly, we shall modify the Judge's Order.

E. Backpay Remedy

The General Counsel contends that the Judge misapplied the criteria established in FAA-II for determining the appropriateness of a backpay remedy where there is a refusal to bargain over the impact and implementation of a decision. The General Counsel argues that Smith lost overtime as a result of the reassignment and that, in refusal to bargain cases, it is not necessary to establish in the record the precise amount of compensation lost in order to award backpay. We agree that a backpay remedy is appropriate.

The Back Pay Act does not require that employees bear the insurmountable burden of demonstrating a "but for" relationship between the improper refusal to bargain and the loss of pay or benefits. Employees seeking this relief need only show the likelihood of a "causal nexus" between the two. Professional Airways Systems Specialists, MEBA, AFL-CIO v. FLRA, 809 F.2d 855, 859 (D.C. Cir. 1987) (PASS), reversing Federal Aviation Administration, Washington, D.C., 20 FLRA 273 (1985) (FAA-I) and 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). See also American Federation of Government Employees, SSA Council 220, AFL-CIO v. FLRA, 840 F.2d 925, 930-31 (D.C. Cir. 1988) (SSA Council 220) (observing that rarely will there be a sound statutory reason to withhold monetary relief for losses actually suffered by employees).

In FAA-II, the Authority imposed a backpay remedy for the agency's failure to engage in impact and implementation bargaining before implementing a new reorganization plan. In FAA-I, an earlier decision involving the same dispute, the Authority had ordered a status quo ante remedy for the same violation and had also ordered the agency to bargain with the union before implementing any future reorganization. In that decision, however, the Authority declined to order a make-whole remedy on the ground that such a remedy would not meet the test required by the Back Pay Act, 5 U.S.C. § 5596. FAA-I, 20 FLRA at 274. On review, the Court of Appeals for the District of Columbia Circuit disagreed with the Authority's refusal to order backpay in such circumstances, holding that "the Back Pay Act permits a back pay award to affected employees of an agency that has failed to engage in 'impact and implementation' bargaining, so long as the employees meet the initial burden of establishing a causal nexus between the violation and the loss of pay." PASS, 809 F.2d at 860. On remand, the Authority initially held that in refusal to bargain cases it would view the unjustified personnel action, within the meaning of the Back Pay Act, to be the agency's action of changing conditions of employment of unit employees without providing the exclusive representative with an opportunity to bargain. FAA-II, 27 FLRA at 233. The Authority further concluded that after it determines that an employee was affected by an unjustified or unwarranted personnel action that resulted in a withdrawal or reduction in the employee's pay, allowances or differentials, the causal nexus between the violation and the loss of pay can best be established by directing payment of backpay consistent with the outcome of ordered bargaining. Id. at 234. See also Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, 32 FLRA 521, 527 (1988).

On further reflection, we have decided that FAA-II was wrong insofar as it requires the amount of backpay to be determined by the outcome of bargaining between the parties in cases where the remedy includes a status quo ante award and it is clear that an improper personnel action, unlawfully taken without affording the union an opportunity to bargain, resulted in some loss of pay, allowances or differentials. We now hold that in such cases the causal nexus required by the Back Pay Act is established when the Authority holds that an agency's action that gave rise to a violation resulted in a withdrawal or reduction in the pay, allowances or differentials of employees. In our view, neither the Back Pay Act nor the D.C. Circuit's opinion in the PASS case requires more. The question of the amount of backpay owed, as opposed to the issue of whether backpay should be ordered, is a matter for compliance.

To allow the assessment of backpay to be determined by the outcome of negotiations between the parties can undermine the Authority's total remedial action in a case in two ways. First, it could have the effect of nullifying, or seriously weakening, a status quo ante remedy that has been imposed in full compliance with the requirements of Federal Correctional. Thus, by permitting the parties, through bargaining, to eliminate or reduce the amount of the backpay to be paid, as established by the FAA-II formulation, the Authority permits the parties to determine whether there will in fact be a meaningful remedy for the agency's failure to bargain regarding the impact and implementation of a decision that may have seriously affected the working conditions of employees. In our view, by so doing we are relinquishing our statutory obligation to determine appropriate remedies for violations of the Statute.⁽¹⁾

Second, in such cases our orders are internally inconsistent insofar as they order impact and implementation bargaining before an agency can implement any changes at all in the future, but permit the unlawful effects of past decisions taken without such bargaining to be mitigated by the far less effective means of retroactive bargaining. Indeed, there may be cases where, because the agency has decided not to implement the change that gave rise to the initial charge, no future negotiations on the subject would even take place, absent the Authority's order regarding the extent of the agency's remedial obligations. We do not believe that it enhances the stability of a bargaining relationship to order bargaining regarding remedial obligations in such circumstances.

We believe that this approach is appropriate for all cases involving changes in conditions of employment resulting from unlawful refusals to bargain, regardless of whether the status quo ante award stems from a refusal to bargain over a decision or from an analysis conducted under Federal Correctional concerning a failure to engage in impact and implementation bargaining. In either instance, the employer was not privileged to implement the decision without affording a bargaining opportunity to the representative of its employees. It is the wrongdoer, not the employees, that should bear the burden of the failure to maintain the status quo until the requisite notice and bargaining is achieved.

There is Authority precedent for the action we take today. See, for example, Veterans Administration, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, 22 FLRA 612 (1986) (status quo ante award to include premium pay denied nurses when respondents changed shift times without bargaining over decision); Warner Robins Air Logistics Center (AFLC), Robins Air Force Base, Georgia, 21 FLRA 1015 (1986) (status quo ante award includes make whole order for employees affected by change of guidelines for evaluating travel vouchers where there had been no impact and implementation bargaining before the change was made); United States Department of the Treasury, Internal Revenue Service, Dallas District, 13 FLRA 459 (1983) (status quo ante and make whole order for approximately 50 employees affected by respondent's change of scheduled tours of duty without engaging in impact and implementation bargaining).

We stress that this remedy is available only where it is clear that the violation has resulted in a loss of some pay, allowances or differentials, that is, when the second requirement of the Back Pay Act has been met. Where the effect on employees is totally speculative, we will continue to deny make-whole relief. See, for example, Social Security Administration, 16 FLRA 1135 (1984). Where, however, it is clear that some employees have been affected by the unlawful refusal to bargain, but there is no way to ascertain their identity through compliance proceedings, see, for example, United States Department of Labor, 16 FLRA 969 (1984), we will continue to apply the remedy established in FAA-II and allow the parties to establish the causal nexus required by the Back Pay Act by determining through negotiations the extent of the make-whole relief.

Accordingly, in this and future cases involving an agency's failure to engage in impact and implementation bargaining where the remedy includes a status quo ante award and we conclude that the agency's actions resulted in a withdrawal or reduction in pay, allowances or differentials of identifiable employees, we will then order the agency to make such employees whole for that withdrawal or reduction. We will leave to the compliance stage any questions as to the actual amount to be paid.⁽²⁾

As set forth above, we have found in this case that the Agency's failure to engage in impact and implementation bargaining before reassigning Smith resulted in a loss to him of overtime pay. Accordingly, we will order Respondent to return to the status quo ante and to make Smith whole for any lost overtime pay. The amount of the backpay owed will be a matter for compliance.

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Social Security Administration, Baltimore, Maryland, and the Social Security Administration, Hartford District Office, Hartford, Connecticut, shall:

1. Cease and desist from:

(a) Implementing a change in the working conditions at its Hartford District Office concerning the reassignment of employees from field representative positions to claims representative positions without first notifying the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative, and affording it an opportunity to bargain with respect to the procedures and appropriate arrangements concerning the change.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Reassign Christopher Smith to the position of field representative pending the outcome of the negotiations with the American Federation of Government Employees, AFL-CIO, Local 1164, concerning the reassignment of employees from field representative positions to claims representative positions.

(b) Upon request of the American Federation of Government Employees, AFL-CIO, Local 1164, meet and negotiate over the impact and implementation of the reassignment of employees from field representative positions to claims representative positions, including placement in the floor unit or the teleclaims unit.

(c) In accordance with the Back Pay Act, 5 U.S.C. § 5596, as amended, make whole Christopher Smith, who suffered a withdrawal or reduction in his pay, allowances, or differentials because of his reassignment from a field representative position to a claims representative position, to the extent that such reassignment resulted in a withdrawal or reduction in his overtime pay.

(d) Post at its Hartford District Office 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 Manager of the Hartford District Office 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.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, 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 implement a change in the working conditions at the Hartford District Office concerning the reassignment of employees from field representative positions to claims representative positions without first notifying the American Federation of Government Employees, AFL-CIO, Local 1164, the exclusive representative, and affording it an opportunity to bargain with respect to the procedures and appropriate arrangements concerning the change.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL reassign Christopher Smith to the position of field representative pending the outcome of the negotiations requested by the American Federation of Government Employees, AFL-CIO, Local 1164, concerning the reassignment of employees from field representative positions to claims representative positions.

WE WILL, upon request of the American Federation of Government Employees, AFL-CIO, Local 1164, meet and negotiate over the impact and implementation of the reassignment of employees from field representative positions to claims representative positions, including placement in the floor unit or the teleclaims unit.

WE WILL make whole Christopher Smith to the extent that his reassignment from a field representative position to a claims representative position resulted in a withdrawal or reduction in his overtime pay.

__________________________
(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 by any other material.

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, MA 02222-1046 and whose telephone number is: (617) 565-7280.

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FOOTNOTES:
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1. In this regard, we note the admonition of the Court of Appeals for the District of Columbia Circuit, sitting en banc, that "where an agency has taken unilateral action that disturbs the status quo and has illegally refused to give a union an opportunity to bargain over the decision (or its impact), a stronger case can be made for the proposition that the Authority, as does the NLRB, should restore the status quo ante in a remedial order--that is, make the employees whole." National Treasury Employees Union v. FLRA, No. 87-1165, slip op. at 10 (D.C. Cir. Aug. 14, 1990) (emphasis in original; footnote deleted).

2. We recognize that at least one court of appeals has mentioned the FAA-II remedial approach approvingly. SSA Council 220, 840 F.2d at 931. Nonetheless, it is clear that the Authority may depart from its own body of law when it provides a reasoned explanation for so doing. PASS, 809 F.2d at 859-60.

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