Guidance on Seeking Remedies for ULPs

TABLE OF CONTENTS
PART I.      REMEDIAL AUTHORITY UNDER THE STATUTE

A.     Statutory Remedial Authority
B.     The Authority Has Broad Remedial Power
C.     Purpose of Remedies


PART II.      OGC REMEDY POLICY

A.     Creative Remedies that Effectuate the Statute
B.     Appropriate Remedies are Considered Throughout the Processing of the ULP Charge and ULP Complaint

PART III.     TRADITIONAL AND NONTRADITIONAL REMEDIES

A.     Traditional Remedies
B.     Nontraditional Remedies

PART IV.     POSTING, DISTRIBUTING, AND SIGNING REMEDIAL NOTICES AND THE CONTENTS OF THOSE NOTICES

A.     Scope of Posting of Remedial Notices
B.     Signatories on Remedial Notices
C.     The Nontraditional Remedy of Distributing the Notice to Employees, Supervisors and Managers by Hard Copy or Electronic Mail
D.     The Nontraditional Remedy of Reading the Notice to Unit Employees, Supervisors and Managers
E.     The Nontraditional Remedy of Naming Specific Managers or Union Officials that Engaged in Violative Conduct in the Notice
F.     The Nontraditional Remedy of Referring to Prior Violations in the Notice  
G.     Evidence to Support Posting Remedies


PART V.     MONETARY RELIEF

A.     Doctrine of Sovereign Immunity
B.     Equitable Relief


ATTACHMENT 1 — REMEDIES FOR SPECIFIC VIOLATIONS AND EVIDENCE TO SUPPORT THOSE REMEDIES

A.     Unilateral Changes - Procedures and Appropriate Arrangements - Status Quo Ante
B.     Unilateral Change - Status Quo Ante
C.     Unilateral Change--Retroactive Bargaining Order (RBO)
D.     Bad Faith Bargaining
E.     Failure to Implement an Agreement and Repudiation of an Agreement
F.     Bypasses
G.     Investigatory Examinations
H.     Formal Discussions
I.     Information
J.     Section 7115 Dues Allotment
K.     Statutory Official Time
L.     Section 7116(a)(1) and (b)(1)--Interference, Restraint or Coercion
M.     Section 7116(a)(2) and (4)--Discrimination
N.     Section 7116(a)(3)--Assistance, Sponsorship or Control
O.     Duty of Fair Representation
P.     Nontraditional Remedies Applicable to Different Types of Violations


ATTACHMENT 2 — DECISIONAL ANALYSIS FOR REGIONAL DIRECTORS WHEN DECIDING ON APPROPRIATE REMEDIES FOR UNFAIR LABOR PRACTICES


PART 1--REMEDIAL AUTHORITY UNDER THE STATUTE


A.     Statutory Remedial Authority


Section 7105 of the Statute sets forth the powers and duties of the Authority. Paragraph (g)(3) of section 7105 contains the Authority's basic remedial power:

(g)     In order to carry out its functions under this chapter, the Authority. . .
(3)     may require an agency or a labor organization to cease and desist from violations of this chapter and require it to take any remedial action it considers appropriate to carry out the policies of this chapter."
Section 7118 of the Statute deals with the prevention of unfair labor practices. Paragraph (a)(7) of that section sets forth specifically the scope of the Authority's unfair labor practice remedial authority: [n1]  

Under this section, upon a determination that an agency or labor organization engaged in an unfair labor practice, the hearing official shall state such findings in writing and shall serve upon the agency or labor organization an order -
(A)     to cease and desist from any such unfair labor practice in which the agency or labor organization is engaged;
(B)     requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect;
(A)     requiring reinstatement of an employee with backpay in accordance with § 5596 of this title; or
(B)     including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action as will carry out the purpose of this chapter.
If any such order requires reinstatement of any employee with backpay, backpay may be required of the agency (as provided in § 5596 of this title) or of the labor organization, as the case may be, which is found to have engaged in the unfair labor practice involved.
Thus, the Authority is empowered to:

issue cease and desist orders;
 
require parties to negotiate a contract and to give it retroactive effect;
 
order reinstatement of an employee with backpay; and
 
order any remedial action necessary to carry out the purposes and policies of the Statute.
 
B.     The Authority Has Broad Remedial Power

The Authority and the courts have concluded that Congress intended to provide the Authority with broad remedial powers. [n2]  Section 7118(a)(7) speaks specifically to the scope of the Authority's remedial power in unfair labor practice cases. That section sets forth certain specific remedies and empowers the Authority to order "such other action as will carry out the purposes of this chapter." This broad grant of remedial power is tempered only by reference to the purpose of the Statute, which embodies the balance of interests between and among employees, unions, and agencies. No other limitations are expressed. The breadth of the Authority's remedial power in unfair labor practice cases has been recognized in a variety of contexts. [n3]  The United States Court of Appeals for the D.C. Circuit has found that Congress intended the Authority to have remedial authority in unfair labor practice cases similar to that granted the NLRB under the National Labor Relations Act. [n4]  

Further, the Authority also has found that section 7106 of the Statute (the management rights clause) does not diminish the Authority's remedial powers, but rather limits only the scope of collective bargaining under the Statute. [n5]  The Authority has an obligation to "repair and restore the effects of statutory violations . . . . The Statute provides the Authority the discretion to fashion remedies as long as such remedies are consistent with the purposes and polices of the Statute." [n6]  

Thus, based on the language of the Statute and Authority and court decisions, the Authority has been granted broad remedial power, tempered only by external law and the purposes and policies underlying the Statute.

C.     Purpose of Remedies


1.     Recreate the Conditions Prior to the Unlawful Act
The essential purpose of an Authority's remedial order is "to restore, so far as possible, the status quo that would have obtained but for the wrongful act and to deter future misconduct." [n7]  In other words, the purpose of a remedy is to recreate the conditions and relationships that would have been had there been no unfair labor practice. [n8]  When fashioning a remedy to a particular violation, it is important to identify the conditions that would have existed had there been no unlawful act.

2.     Deterrence of Future Violative Conduct. 
The Authority also has clearly stated that the deterrence of future violative conduct is an essential purpose of a remedy. [n9]  A component of recreating the conditions and relationships that would have been had there been no unfair labor practice is promoting employee confidence in the rights and procedures established by the Statute. [n10]  Remedies, however, must not be punitive. [n11]  The Authority also may not direct a respondent to perform an illegal act. [n12]  

3.     Remedy Principles [n13].  All remedies, therefore, must:

a.     be consistent with external law;
b.     be reasonably necessary to effectively recreate the conditions and relationships with which the unfair labor practice interfered;
c.     effectuate the policies of the Statute, including the deterrence of future violative conduct; and
d.     are not punitive.


PART II. --  OGC REMEDY POLICY


A.     Creative Remedies that Effectuate the Statute


The OGC seeks traditional and nontraditional remedies that:

Recreate the conditions and relationships that would have been had there been no unfair labor practice;
 
Restore, so far as possible, the status quo that would have been obtained but for the wrongful act;
 
Deter future violations;
 
Are appropriate under the particular circumstances of the violation and are supported by the evidence;
 
Utilize the full extent of the Authority's remedial power;
 
Avoid being punitive;
 
Are consistent with external controlling law;
 
Are responsive to the legitimate interests of the parties; and
 
Effectuate and promote the purposes and policies of the Statute.
 
B.     Appropriate Remedies are Considered Throughout the Processing of the ULP Charge and ULP Complaint [n14]  


Regional Offices consider and evaluate potential appropriate remedies throughout the investigation of an unfair labor practice charge and the litigation of an unfair labor practice complaint.

1.     Evidence is Obtained Pertaining to Remedy During the Investigation of the Unfair labor Practice Charge. 
During the investigation of a charge, the Agent obtains relevant evidence, testimonial and documentary, concerning the legitimate interests of the Charging Party in seeking a particular remedy. The investigation reveals what remedial action is necessary to effectuate the OGC's remedial policy stated above in this Part. [n15]  

2.     Cases that are Ready for Presentation to the Regional Director for Decision Contain a Recommendation for a Particular Remedy, When Applicable.  When a case is presented to the Regional Director for a decision on the merits of the charge, any recommendation for issuance of complaint or alternatives resulting in issuance of complaint is accompanied by a recommendation for an appropriate remedy. Just as recommendations for dismissal or complaint are supported by record evidence, recommendations for an appropriate remedy are supported by record evidence. Regional Director decisions authorizing issuance of complaint, absent settlement, include the decision on the remedy to be sought in litigation. [n16]  

3.     Notice of Remedy in Complaint.  Notice of unique or novel remedies is given in the complaint.

4.     Transmittal Memoranda.  The transmittal memorandum that accompanies the issuance of the complaint sets forth the remedy to be sought in litigation, cites any novel precedent supporting the remedy, and notes any significant facts or issues pertaining to the appropriateness of the remedy and potential difficulties in obtaining that particular remedy.  [n17]  

5.     Preparation for Trial.  The Trial Attorney includes the issue of the appropriate remedy in preparing for the hearing. The Trial Attorney reviews witness testimony and documentary evidence pertaining to the appropriate remedy in the same manner as evidence is reviewed pertaining to establishing the violation. [n18]  

6.     Pre-Hearing Disclosure Requirement.  Section 2423.23(c) requires the General Counsel to disclose a brief statement concerning the theory of the case, including the relief sought, at least 14 days before the hearing. If a nontraditional remedy is sought, all parties must be on notice so that no party may claim surprise. [n19]  Adherence to the pre-hearing disclosure requirements is especially important in this instance. This rule applies to the Charging Party as well because the Charging Party can always argue for a remedy that differs from that which the General Counsel is seeking. This knowledge may impact on the Charging Party's desire to argue for or against the remedy sought by the General Counsel and/or to argue for another remedy that it believes is more appropriate. [n20]  

7.     The Hearing. 
The Trial Attorney presents witness testimony and documentary evidence pertaining to the appropriate remedy in the same manner as evidence is presented pertaining to establishing the violation. It is critical that testimonial and documentary evidence be submitted to establish the necessity for the requested remedy. [n21]  

If notice of the nontraditional remedy, for some reason, is not given as part of the pre-hearing disclosure, the Trial Attorney sends a letter to the parties as soon as the Region determines to seek that remedy. In addition, at hearing, in the opening statement, the Trial Attorney identifies the nontraditional remedy that will be sought. Since the remedy was not noticed as part of pre-hearing disclosure, this may precipitate an objection from respondent's counsel. However, even at this late date, such notice does give the respondent the opportunity to address and fully litigate the issues that may be required to rebut the General Counsel's remedy evidence and also provides the Charging Party with a chance to put on evidence in support of its own remedy.

Before the close of the hearing, if evidence has been introduced to support the remedy sought, but notification has not yet been made, state the remedy sought. As stated above, be prepared to respond to an objection. At least this allows the parties to brief the remedy issue and makes the filing of supplemental briefs unnecessary.

8.     Post-Hearing Briefs. 
Post-hearing briefs have a separate section where the sought remedy is discussed. The brief discusses the relevant precedent and, citing record evidence, explains why the requested remedy is necessary and consistent with the purpose of a remedy. [n22]  The brief also contains a suggested order and notice.

9.     Exceptions to ALJ Recommended Decisions and Orders.  When a Trial Attorney files exceptions to an ALJ's failure to find a specific violation, those exceptions also specifically encompass the ALJ's accompanying failure to order the remedy requested. When an ALJ finds a specific violation but fails to order the complete remedy requested, the Region files exceptions when it determines that, under the totality of the circumstances (including the remedy received, the current situation and the interests of the Charging Party) the requested remedy still should be sought. [n23]  

PART III.  --   TRADITIONAL AND NONTRADITIONAL REMEDIES


A.     Traditional Remedies


The Authority has distinguished in its decisions between traditional remedies and nontraditional remedies. In F.E. Warren, the Authority noted that it had "developed several `traditional' remedies, including a cease-and- desist order accompanied by the posting of a notice to employees that meet the criteria of a remedy, and which are provided in virtually all cases where a violation is found." [n24]  The Authority also identified other remedies that require some form of affirmative action by the respondent as established, or traditional, remedies. For example, a retroactive bargaining order, [n25]  the grant of backpay, [n26]  and the release of improperly withheld information  [n27]  were cited as traditional remedies. Some of these traditional remedies, such as status quo ante as a remedy for a failure to bargain violation, have given rise to criteria of their own. [n28]  Aside from these general references, however, the Authority to date has not clearly identified the factors which differentiate a traditional remedy from a nontraditional remedy, except that traditional remedies are routinely granted as a matter of course whereas as nontraditional remedies require independent justification.

Therefore, unless the Authority has established specific criteria for a remedy (such as status quo ante in appropriate arrangement and procedure change cases), the Authority does not require specific evidence to establish that traditional remedies are appropriate under the remedy principles. Thus, in essence, the Authority presumes, subject to evidence establishing otherwise, that these traditional remedies: (1) are not contrary to external law or the purposes of the Statute; (2) are reasonably necessary and effective to recreate the conditions and relationships with which the unfair labor practice interfered, and (3) deter future violative conduct.

B.     Nontraditional Remedies


The Authority has referred to remedies not routinely granted as a matter of course as nontraditional remedies. Nontraditional remedies, of course, must satisfy the same broad objectives that are required of all remedies ordered by the Authority. Thus, assuming that there exist no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to "recreate the conditions and relationships" with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct." [n29]  

The basic difference between traditional and nontraditional remedies is that the Authority requires an independent factual basis to sustain a nontraditional remedy, whereas the traditional remedy is most always assumed to be appropriate, absent special circumstances. As such, although normally it is not necessary to establish a separate factual basis to support a traditional remedy other than the existence of the violation itself, a nontraditional remedy requires a separate factual determination that the specific nontraditional remedy is reasonably necessary and would be effective to recreate the conditions and relationships which would have existed but for the unfair labor practice, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct. In sum, because the Authority routinely presumes that a traditional remedy is effective to remedy the violation, the General Counsel must establish both that the traditional remedy is not adequate, and that the evidence dictates that a nontraditional remedy is necessary.

These questions are essentially factual, requiring specific evidence to establish their existence. As such, the Regions investigate and litigate these remedies in the same manner that the Regions investigate and litigate the essential elements of a violation. As with other factual questions, the General Counsel bears the burden of persuasion, the ALJ is responsible for initially determining whether the remedy is warranted, and the Authority is responsible for ordering such nontraditional remedies.

Thus, it is essential that when any remedy other than the routinely ordered, traditional remedy is requested, the record contains evidence establishing why it is necessary to order a nontraditional remedy, rather than the routine traditional remedy. Not only must the General Counsel establish that the traditional remedy is not adequate to redress the wrong incurred by the unfair labor practice, [n30]  but the General Counsel must also establish through evidence that the particular nontraditional remedy sought is appropriate under the remedy principles. In those decisions where the Authority has denied the General Counsel's request for a nontraditional remedy, the basis for the denial usually has not been that the requested remedy was unlawful or outside the remedial powers of the Authority, but that the record did not establish the need for such a nontraditional remedy. [n31]  I emphasize that record evidence, not mere policy and equity arguments, is essential to establish the appropriateness of a nontraditional remedy. Thus, as noted above in Part II discussing the OGC Remedy Policy, it is critical that this testimonial and documentary evidence is developed throughout the processing of the charge and complaint.

PART IV. -- POSTING, DISTRIBUTING, AND SIGNING REMEDIAL NOTICES AND THE CONTENTS OF THOSE NOTICES


The posting of a notice provides evidence to bargaining unit employees that the rights guaranteed under the Statute will be vigorously enforced. [n32]  The Authority also has acknowledged that, in many instances, the posting of a notice is the only visible indication to unit employees that a respondent recognizes and intends to fulfill its obligations under the Statute. [n33]  

Upon the request of the General Counsel, Authority notices now contain a statement that the Authority has found a violation of the Statute and has ordered the respondent to post and abide by the notice. The Authority's notices serve a critical role in effectuating the purposes of the Statute. Therefore, their contents must be clear and their import readily understandable. The Authority has found that these purposes are enhanced by explicitly stating in the Notice to employees that the Authority has found the respondent to have violated the Statute. Accordingly, such language is a part of all notices when unfair labor practices are found. [n34]  

Posting a remedial notice ordered by the Authority raises a series of related issues, such as: where should the notice be posted; what management or union official signs the notice on behalf of the respondent agency or union; and should the notice be distributed in a manner different or in addition to posting.

The first two issues, scope and signatories are related. Thus, whenever the scope of the posting is expanded beyond the particular location of the violation, the signatory on the posted notice should be an official with responsibility for the entire posting area. Conversely, whenever the signatory of a posting is an official with responsibility for an area beyond the particular location of the violation, the scope of the posting should encompass that expanded area. In short, the scope of the posting and level of the signatory should be consistent.

A.     Scope of Posting of Remedial Notices


The scope of the posting refers to the identification of the particular locations where a remedial notice to employees will be posted. The issue usually concerns whether a notice will be posted only at the particular location where the unfair labor practice violation occurred or at other locations where bargaining unit employees also may be working. For example, when a violation occurs at one facility within a nationwide bargaining unit, the posting may occur at that location only or throughout the nationwide bargaining unit.

In determining the scope of a posting requirement, the Authority considers the purpose of a posting. The standard for the scope of a remedial posting is whether the violative conduct affects employees beyond a particular location. Where a respondent's conduct impacts unit employees beyond the particular location where the violation occurred, it is appropriate to require that notices be posted in additional areas. [n35]  The Authority, for example, has found this standard to be met when the unfair labor practice concerned the discipline of the union president for engaging in protected activity. In those circumstances, a unit-wide posting was found to be appropriate because the impact of the unfair labor practice, although it concerned only the discipline of one employee, concerned the union president who was acting on behalf of the entire unit. [n36]  On the other hand, when there is no indication that other employees outside a specific location were affected by the violation, the Authority has ordered a local posting. [n37]  When litigating a case, the Regions request the greatest appropriate scope of the posting. The signatories on a remedial notice, discussed next, often is influenced by the scope of the posting.

B.     Signatories on Remedial Notices


The signatory indicates the particular management or union official who is ordered to sign the notice. Sometimes, signing the notice is the only way that employees know that the lead manager or union official is even aware that a violation of law has occurred. The issue often arises as to the level of the official who should sign the notice that is posted. For example, is it appropriate for the local manager or the local labor relations officer to sign a notice, or should the facility manager or head of the agency be the more appropriate signatory. Similarly, should a union steward be the signatory or should the local or nationwide unit president sign the notice.

The management rights provisions of the Statute do not diminish the Authority's remedial powers. Specifically, the management rights provisions do not preclude the Authority from naming a particular management official to sign a remedial notice. [n38]  Thus, the Authority will specifically name in its order the title of the appropriate agency or union official to sign a remedial notice.

The Authority has stated that by requiring the highest official to sign the notice, a respondent "signif[ies] that the respondent acknowledges its obligations under the Statute and intends to comply with those obligations." [n39]  Thus, the Authority has long held that "the remedial purposes of a notice are best served by requiring the head of the activity responsible for the violation to sign the notice." [n40]  "[T]he highest official of the activity responsible for the violation," however, is not always the head of the activity/agency or union. [n41]  However, when the respondent is the agency at the level of exclusive recognition of a nationwide unit and the violation has unit-wide impact, the Authority has ordered the head of the agency to sign the notice. [n42]  When litigating a case, the Regions request the highest appropriate official to sign the notice.

C.     The Nontraditional Remedy of Distributing the Notice to Employees, Supervisors and Managers by Hard Copy or Electronic Mail


Sometimes, it may be necessary to ensure that the notice is distributed in a different or additional manner to impress upon the respondent the seriousness of the violation(s) and to ensure that employees know that their rights under the Statute will be protected.

When warranted by the extraordinary circumstances surrounding the violations, the Authority has ordered that the signed remedial notice be distributed to each supervisor, manager and employee. [n43]  In the one case where such a remedy was ordered, the Authority noted that the distribution of the posting to all supervisory personnel and management officials sufficiently addressed the concern for deterrence of future violations. As such, the Authority declined the General Counsel's request for an additional nontraditional remedy, i.e., to annotate the official file of the particular supervisor who committed the violations. [n44]  

Another nontraditional manner in which to distribute a notice is to use electronic mail. In one National Labor Relations Board decision, an ALJ reasoned:

The Charging Party seeks the mailing of a notice to each unit employee. The General Counsel seeks normal posting. We live in changing times. The Board's traditional notice posting as a means of communication with employees is increasingly less effective in an electronic age in which the physical posting of notices in common areas generally is not the sole or even the most common means of providing information to employees. It is evident from the record that the unit employees involved herein are scattered at numerous locations and that the Respondent communicated with its employees respecting this matter via electronically transmitted memoranda. . . . I find that the Respondent shall be required, in addition to the normal posting requirements, to send each unit employee a copy of the notice herein by the method generally used to communicate to employees regarding matters of importance. Thus, the Respondent will be required to either mail or transmit a copy . . . by the means of electronic transmission currently used . . . for example, by E-mail . . . . [n45]  
This is an untested area of the law; however, Regions may consider distribution of a notice by electronic mail when appropriate to ensure that the notice is available to all employees affected by the violation.

D.     The Nontraditional Remedy of Reading the Notice to Unit Employees, Supervisors and Managers


In view of the seriousness of the violations, the Authority has ordered that a meeting be held where the agency head reads aloud the notice. [n46]  In Leavenworth, the chief management official, the warden, was personally involved to a significant extent in a pattern of unfair labor practice violations over the course of a seven- month period, many of them egregious, such as making threatening, anti-union statements at a mandatory meeting of all employees (unit and nonunit) and making repeated statements threatening to take action against union officials. Relying on private sector precedent, the Authority ordered the respondent either to have the warden personally read the notice to all employees thereby informing employees that the employer has been found to have committed statutory violations, or to have an Authority agent read the notice with the warden present. The Authority particularly highlighted that in view of the fact that the warden made egregious, anti-union statements at a mandatory meeting of all employees, it was reasonably necessary to require those statements to be retracted, via a reading aloud of the notice, at another meeting of all employees. The Authority reasoned that this remedy will reach the same group of employees that witnessed the offense, and is calculated to have a countervailing impact similar to the initial offense. Further, because the warden called this mandatory meeting and made these statements in his representational capacity as the warden of the penitentiary, the Authority found it reasonably necessary to require the warden to conduct the reading, or alternatively, to require the warden to be present when the reading is conducted by an Authority agent, in order to recreate the conditions and relationships with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute. [n47]  

E.     The Nontraditional Remedy of Naming Specific Managers or Union Officials that Engaged in Violative Conduct in the Notice


The General Counsel, to date, has been unsuccessful in convincing the Authority that it is necessary to name specific offending managers, supervisors or union officials in a posting to recreate the conditions that existed before the violation and to deter future violations. [n48]  In Leavenworth, for example, the Authority, noting that there are no private sector cases where such a remedy has been granted, found that in view of the other ordered remedies, naming particular individuals in the notice is not reasonably necessary in order to recreate the conditions and relationships with which the unfair labor practice interfered, or to effectuate the policies of the Statute. [n49]  As noted above, the General Counsel has been successful in requiring that all future notices be prefaced with a clear and unambiguous statement that the Authority has found the particular agency or union to have violated the Statute.

F.     The Nontraditional Remedy of Referring to Prior Violations in the Notice


The seriousness of a violation may support reference to previous violations in the notice. The one time the Authority granted this remedy, it noted that the "language serves to put both the employees and the respondent on notice of the serious nature of the respondent's unlawful conduct."  [n50]  

G.     Evidence to Support Posting Remedies


To determine the appropriate scope and signatories of a posting and whether any of the above nontraditional posting remedies are appropriate, evidence should be developed to establish:

the extent to which unit employees at locations other than the site of the violation know of the violative conduct;
 
whether the violation involved high ranking union and/or agency officials;
 
how the violation affected employees at different locations within the unit.
 
the seriousness, type and number of violations; and
 
the manner in which information about policies, personnel matters, job announcements and other important information is routinely disseminated to employees and managers.
 
PART V. -- MONETARY RELIEF


A.     Doctrine of Sovereign Immunity


Applying the legal doctrine of sovereign immunity, the Authority requires the party requesting a monetary remedy to establish that there is statutory authority (other than that provided in the Statute) for the expenditure of such funds. [n51]  Thus, an order by the Authority that an agency remedy an unfair labor practice by providing monetary reimbursement for losses incurred due to an unfair labor practice must be supported by statutory authority to impose such a remedy.

1.     Back Pay Act


One specific statutory authority unambiguously authorizing money damages is the Back Pay Act. [n52]  An employee found to have been affected by an improper or unwarranted personnel action resulting in the withdrawal or reduction of pay, allowances or differentials may be made whole under the authority of the Back Pay Act. [n53]  The Back Pay Act specifically provides for the payment of interest. [n54]  The Authority has held that the management rights section of the Statute, particularly the right to determine its budget, does not provide any impediment to a make-whole remedy based on the Back Pay Act. [n55]  

The Back Pay Act applies to a variety of unfair labor practices as long as the withdrawal or reduction of pay, allowances or differentials was as a result of the unfair labor practice. For example, a violation of section 7116(a)(2) of the Statute by suspending an employee for engaging in protected activity results in a backpay remedy.  [n56]  Similarly, a unilateral change unfair labor practice could result in a money remedy under the Back Pay Act. [n57]  

2.     Attorney Fees


The Back Pay Act referred to above also provides an entitlement to "reasonable attorney fees . . . awarded in accordance with standards established under section 7701(g) of this title . . . ." [n58]  A union can request attorney fees before an ALJ at the hearing, in a post-hearing brief, or on motion to the ALJ after the ALJ has recommended a decision and order. In keeping with the Regions' role as a neutral third party representing the public interest, it is inappropriate for the OGC to take a position as to whether attorney fees are warranted and the amount of any such fees. Similarly, the Trial Attorney refrains from taking a position with respect to the attorney fees request and the amount of such fees, if any are requested.

3.     External Statutory Authority


Relying on the D.C. Circuit decision in Department of the Army, the Authority has held that the remedial provisions of the Statute do not meet the strict test for waiver of liability for money damages under the doctrine of sovereign immunity. [n59]  The Authority adopted the court's reasoning, and disavowed earlier Authority precedent, to hold that the Statute does not waive sovereign immunity to an award of money damages not related to an unlawful reduction in pay, allowances, or differentials covered by the Back Pay Act. Thus, when backpay is not involved, any monetary damages must be unambiguously grounded in some other statute.

B.     Equitable relief


The Authority will uphold specific remedies that are equitable in nature. [n60]  Just because a remedy requires an agency to expend money does not automatically translate into a remedy requiring money damages. In Department of the Army, the court discussed the difference between money damages and equitable relief. The court characterized "money damages" as a payment to a plaintiff of a sum of money for "something lost in consequence of the defendant's act," and as a substitute for a suffered loss in an action at law for damages. [n61]  On the other hand, the remedy in an equitable action "attempt[s] to give the plaintiff the very thing to which he was entitled." [n62]  The court recognized that a monetary award can be either legal or equitable in nature. [n63]  

Based on this holding, in those situations where the Regions in the past would have sought damages, but such damages are now not supportable, the Regions should seek other innovative remedies which make the employees whole, but which do not violate the doctrine of sovereign immunity. As noted above, the doctrine applies to the payment of monetary damages to employees, not every expenditure of funds by an agency. For example, should the facts present in INS, Los Angeles arise again, instead of requesting that the agency reimburse employees for parking fees they were required to incur as a result of the violation, the agency could be required to provide free or reduced parking for an equal period of time. [n64]  Similarly, where a respondent has unilaterally increased the cost of food items in its vending machines or canteen, instead of requiring reimbursement, the respondent could be required to lower prices in the amount unlawfully raised until the employees' losses have been recouped. This approach can be applied to most matters that involve a cost to employees. The Regions should set forth the basis for any money damages in the transmittal memorandum upon issuance of a complaint and should specify what remedies the Region will seek if monetary damages are not supportable.U.S. Penitentiary, Florence, Colorado Commerce, 54 FLRA No. 92


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Footnote # 1 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Section 5596 of the Back Pay Act is set forth in Appendix A, and the Office of Personnel Management implementing regulations are set forth in Appendix B.


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Footnote # 2 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Federal Bureau of Prisons, Washington, D.C., 55 FLRA No. 202, 55 FLRA 1250, 1258 (2000) (FBP).


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Footnote # 3 - Parts I through V - Guidance on Seeking Remedies for ULPs
   See United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA No. 56, 35 FLRA 431, 444 (1990) (Safford) (citing Professional Air Traffic Controllers Organization v. FLRA, 685 F.2d 547 (D.C. Cir. 1982)); and National Treasury Employees Union v. FLRA, 910 F.2d 964, 967 (D.C. Cir. 1990) (en banc); see also ··____··F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA No. 17, 52 FLRA 149, 160-62 (1996) (F.E. Warren) and ··____··Department of Veterans Affairs Medical Center, Phoenix, Arizona, 52 FLRA No. 18, 52 FLRA 182, 185-86 (1996) (DVA, Phoenix ) (reaffirming the principles enunciated in Safford).


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Footnote # 4 - Parts I through V - Guidance on Seeking Remedies for ULPs
   American Federation of Government Employees v. FLRA, 785 F.2d 333, 336 (D.C. Cir. 1986).


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Footnote # 5 - Parts I through V - Guidance on Seeking Remedies for ULPs
   FBP, 55 FLRA at 1256-58.


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Footnote # 6 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Id. at 1256.


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Footnote # 7 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Id. at 1258 (citation omitted).


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Footnote # 8 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Department of Defense Dependent Schools, 54 FLRA No. 37, 54 FLRA 259, 269 (1998).


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Footnote # 9 - Parts I through V - Guidance on Seeking Remedies for ULPs
   FBP, 55 FLRA at 1258.


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Footnote # 10 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Safford, 35 FLRA at 448.


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Footnote # 11 - Parts I through V - Guidance on Seeking Remedies for ULPs
   F.E. Warren, 52 FLRA at 160.


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Footnote # 12 - Parts I through V - Guidance on Seeking Remedies for ULPs
   See, e.g., Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 49 FLRA No. 1389, 49 FLRA 1522, 1532 (1994) (Authority will not order status quo ante where prior practice was unlawful).


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Footnote # 13 - Parts I through V - Guidance on Seeking Remedies for ULPs
   These standards will be referred to as the "remedy principles" throughout this Guidance.


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Footnote # 14 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Internal OGC documents, such as transmittal memoranda, are not subject to disclosure under the Freedom of Information Act. These documents are exempt from disclosure under Exemption 5. These documents come under the deliberative process privilege which has the purpose of "prevent[ing] injury to the quality of agency decisions." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975).


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Footnote # 15 - Parts I through V - Guidance on Seeking Remedies for ULPs
   See ULP Case Handling Manual, Part 3, concerning Investigations.


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Footnote # 16 - Parts I through V - Guidance on Seeking Remedies for ULPs
   See ULP Case Handling Manual, Part 4, Chapter D concerning Regional Director Merit Determinations.


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Footnote # 17 - Parts I through V - Guidance on Seeking Remedies for ULPs
   See Litigation Manual, Part 1, Chapter A concerning Issuance of the Complaint.


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Footnote # 18 - Parts I through V - Guidance on Seeking Remedies for ULPs
   See Litigation Manual, Part 2, Chapters I, J, K, L, M, N. O, P and Q concerning Preparation for Hearing.


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Footnote # 19 - Parts I through V - Guidance on Seeking Remedies for ULPs
   "Nontraditional" remedies are discussed in Part III.


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Footnote # 20 - Parts I through V - Guidance on Seeking Remedies for ULPs
   See Litigation Manual, Part 1, Chapter N for a discussion of pre-hearing disclosure requirements concerning the General Counsel's theory of the case.


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Footnote # 21 - Parts I through V - Guidance on Seeking Remedies for ULPs
   See Part III for further discussion on the need to present evidence to support a nontraditional remedy. Also, Part VI identifies specific types of evidence to support particular nontraditional remedies.


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Footnote # 22 - Parts I through V - Guidance on Seeking Remedies for ULPs
   See Litigation Manual Part 3, Chapter B concerning briefs.


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Footnote # 23 - Parts I through V - Guidance on Seeking Remedies for ULPs
   See Litigation Manual Part 3, Chapter F concerning exceptions.


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Footnote # 24 - Parts I through V - Guidance on Seeking Remedies for ULPs
   F.E. Warren, 52 FLRA at 161.


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Footnote # 25 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Id. (citing Department of Veterans Affairs Medical Center, Asheville, North Carolina, 51 FLRA No. 129, 51 FLRA 1572, 1580-81 (1996) (RBO was appropriate since it was not possible to restore the status quo)).


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Footnote # 26 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Id. (citing U.S. Department of Labor, Washington, D.C. and U.S. Department of Labor, Employment Standards Administration, Boston, Massachusetts, 37 FLRA No. 2, 37 FLRA 25, 41 (1990) (reimbursement to employees for money expended on water coolers unilaterally removed as an example of a backpay case)). Regional Offices should not rely on this case because it is inconsistent with the Authority's earlier decision on the doctrine of sovereign immunity (discussed in Part V.) where the Authority specifically stated that it will no longer follow these cases that grant award money that does not come under the Back Pay Act or some other express and unambiguous grant of authority.


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Footnote # 27 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Id. (citing Internal Revenue Service, Austin District Office, Austin, Texas, 51 FLRA No. 95, FLRA 1166, 1182 (1996)).


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Footnote # 28 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Id. (citing Federal Correctional Institution, 8 FLRA No. 111, 8 FLRA 604 (1982) (setting criteria for status quo ante remedies where respondent failed to bargain over impact and implementation of a change); Federal Deposit Insurance Corporation , 41 FLRA No. 29, 41 FLRA 272, 279 (1991) (setting standard for status quo ante remedy where respondent failed to bargain over substance of a change)). Part VI A. and B. discuss the criteria for these bargaining remedies.


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Footnote # 29 - Parts I through V - Guidance on Seeking Remedies for ULPs
   U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Coast and Geodedic Survey, Aeronautical Charting Division, Washington, D.C., 54 FLRA No. 92, 54 FLRA 987, 1020, 1023 (1998) (Dept. of Commerce) (nontraditional language in notice to reflect the findings of past violations, to further assure employees that despite this history of violations the agency recognizes their statutory rights and to "put both employees and the respondent on notice of the serious nature of the Respondent's unlawful conduct").


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Footnote # 30 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Safford, 35 FLRA at 444 (fundamental consideration in formulating remedies is whether the traditional remedy will "adequately redress the wrong incurred by the unfair labor practice . . .").


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Footnote # 31 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Dept. of Commerce, 54 FLRA at 1022 ("the General Counsel has not established a need for disciplining the supervisors); and U.S. Penitentiary, Leavenworth, Kansas, 55 FLRA No. 127, 55 FLRA 704, 720 (1999) (Leavenworth) (copies of an Authority's order or the posting of an order along side the notice was not supported by evidence demonstrating why such distribution is necessary).


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Footnote # 32 - Parts I through V - Guidance on Seeking Remedies for ULPs
   U.S. Department of Justice, Office of the Inspector General, Washington, D.C., 47 FLRA No. 117, 47 FLRA 1254, 1263 (1993) (notice posted throughout nationwide bargaining unit).


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Footnote # 33 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Department of Housing and Urban Development, San Francisco, California, 41 FLRA No. 45, 41 FLRA 480, 483 (1991) (notice posted at all locations where employees are represented by the union are located, rather than just a limited posting at the location where the violation occurred).


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Footnote # 34 - Parts I through V - Guidance on Seeking Remedies for ULPs
   United States Department of Justice, Immigration and Naturalization Service, 51 FLRA No. 75, 51 FLRA 914, 916, 918 (1996) (each notice is preceded with the statement: "The Federal Labor Relations Authority has found that the [agency or union] violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice").


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Footnote # 35 - Parts I through V - Guidance on Seeking Remedies for ULPs
   U. S. Department of Justice, Federal Bureau of Prisons, Office of Internal Affairs, Washington, D.C., 55 FLRA No. 64, 55 FLRA 388, 394-95 (1999) (nationwide notice is appropriate where there were multiple violations and investigators' work involves assignments throughout the locations of the bargaining unit); Department of Defense Dependents Schools, 54 FLRA No. 37, 54 FLRA 259, 271 (1998) (posting at all facilities where unit employees are employed and where employees had been involuntarily transferred, but not world-wide where all unit employees are located); and U.S. Department of Treasury, Customs Service, Region IV, Miami, Florida, 37 FLRA No. 44, 37 FLRA 603, 605 (1990) (notice posted region-wide, rather than only in the particular location where the violation occurred).


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Footnote # 36 - Parts I through V - Guidance on Seeking Remedies for ULPs
   National Park Service, 54 FLRA No. 91, 54 FLRA 940, 946-47 (1998) (posting extended beyond the division where the unfair labor practices occurred, i.e., to all locations where unit employees are employed because, although the unfair labor practice involved the discipline of only one employee, that employee was the president of the union which represents the entire unit).


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Footnote # 37 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 54 FLRA No. 134, 54 FLRA 1529, 1536-37 (1998) (posting limited to the employees in the directorate who were directly affected by the unilateral change).


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Footnote # 38 - Parts I through V - Guidance on Seeking Remedies for ULPs
   FBP, 55 FLRA at 1256 (because personnel at the Region and the Bureau separately refused to furnish the union with the information requested, and the unit is nationwide, the Director of the Federal Bureau of Prisons was ordered to sign the notice).


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Footnote # 39 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA No. 26, 35 FLRA 217, 220 (1990) (the Commanding Officer of the Center was ordered to sign the notice).


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Footnote # 40 - Parts I through V - Guidance on Seeking Remedies for ULPs
   U.S. Department of Veterans Affairs, Washington, D.C., 48 FLRA No. 109, 48 FLRA 991, 992, (quoting Department of Health and Human Services, Regional Personnel Office, Seattle, Washington, 48 FLRA No. 39, 48 FLRA 410, 411 (1993) (the agency's General Counsel, whose office was responsible for the violation, was ordered to sign the notice), affirmed on reconsideration, 48 FLRA No. 148, 48 FLRA 1400, 1402 (1994).


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Footnote # 41 - Parts I through V - Guidance on Seeking Remedies for ULPs
   U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky, 53 FLRA No. 42, 53 FLRA 312, 322 (1997) (where the violation was the failure to implement an agreement for a new facility at the tower, the appropriate official to sign the notice was the tower manager and not the FAA Administrator).


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Footnote # 42 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Social Security Administration, Baltimore, Maryland, 55 FLRA No. 43, 55 FLRA 246, 251 (1999) (without discussion, the Authority ordered the SSA Administrator to sign a nationwide posting in a case involving unit-wide impact).


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Footnote # 43 - Parts I through V - Guidance on Seeking Remedies for ULPs
   U.S. Penitentiary, Florence, Colorado, 53 FLRA No. 124, 53 FLRA 1393, 1394 (1998) (distribution of a posting to all supervisors, managers and employees is a nontraditional remedy tailored to fit the circumstances of the case where there have been continuing similar violations and where unusually large number of employees witnessed egregious violations).


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Footnote # 44 - Parts I through V - Guidance on Seeking Remedies for ULPs
   See Part VI. for a discussion of other nontraditional remedies.


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Footnote # 45 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Pacific Bell, 330 NLRB No. 31, 1999 WL 1100443 at *9 (1999) (note that the Board did not address the remedy in its decision, although one Member dissented as to the e-mail distribution).


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Footnote # 46 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Leavenworth, 55 FLRA at 719 (where the warden's actions in making repeated anti-union statements at a mandatory meeting were egregious and the warden was personally involved in many unfair labor practice violations in the case, the Authority found it reasonably necessary to require the warden's statements to be retracted by a reading aloud by the warden, or by an Authority agent in the warden's presence, of the notice at another meeting of all employees) and Puerto Rico Air National Guard, 156th Airlift Wing (AMC), Carolina, Puerto Rico, 56 FLRA No. 21 (2000), slip op. at 23, petition for review filed, American Federation of Government Employees, Local 3936, AFL-CIO v. FLRA, No. 00-1417 (1st Cir. Mar. 24, 2000) (where violations by the highest agency official were flagrant and blatant, the Authority ordered that within ten days of the posting of the notice, at a meeting of all civilian technicians in the unit, the Adjutant General will read the Notice and inform the employees that the Guard recognizes the Authority's jurisdiction over the Guard and that conduct in conflict with the Statute will not be tolerated).


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Footnote # 47 - Parts I through V - Guidance on Seeking Remedies for ULPs
   For examples of nontraditional distribution remedies ordered by the National Labor Relations Board, see Fieldcrest Cannon Inc., 318 NLRB 470 (1995), enforced in relevant part, 97 F.3d 65 (4th Cir. 1996) (notice published in company's internal newsletter, mailed to employees' homes, published in local newspaper and read to employees by vice-president, in addition to other access remedies); Three Sisters Sportswear Co., 312 NLRB 853 (1993); Montfort of Colorado, 298 NLRB 73 (1990), enforced in relevant part, 965 F.2d 1538 (10th Cir. 1992); United States Service Industries, 319 NLRB 231 91995), enforced, 107 F.3d 973 (D.C. Cir. 1997); and S.E. Nichols, 284 NLRB 556 (1987), enforced, 862 F.2d 952 (2nd Cir. 1988).


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Footnote # 48 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Leavenworth, 55 FLRA at 720; and Department of Veterans Affairs Medical Center, Phoenix, Arizona, 52 FLRA No. 18, 52 FLRA 182, 185 n.5 186 (1996) (the mere fact that an offending supervisor holds a position of authority is insufficient to warrant the inclusion of the names of offending supervisors in the notice to employees).


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Footnote # 49 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Leavenworth, 55 FLRA at 720.


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Footnote # 50 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Dept. of Commerce, 54 FLRA at 1023 (1998) (the notice referred to prior violations by stating adding to the traditional statement that the Authority has found a violation, the phrase "and has done so in the past").


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Footnote # 51 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Immigration and Naturalization Service, Los Angeles District, Los Angeles, California 52 FLRA No. 11, 52 FLRA 103, 104-06 (1996) (INS, Los Angeles) (adopting Department of the Army, U.S. Commissary, Ft. Benjamin Harrison, Indianapolis, Indiana v. FLRA, 56 F.3d 273 (D.C. Cir. 1995) (Department of the Army) (vacating in part Department of the Army, U.S. Army Soldier Support Center, Fort Benjamin Harrison, Office of the Director of Finance and Accounting, Indianapolis, Indiana, 48 FLRA No. 2, 48 FLRA 6 (1993)).


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Footnote # 52 - Parts I through V - Guidance on Seeking Remedies for ULPs
   5 U.S.C. § 5596 (Appendix A) and Office of Personnel Management implementing regulations at 5 CFR §§ 550.801- .808 (Appendix B).


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Footnote # 53 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Social Security Administration, Baltimore, Maryland, 55 FLRA No. 43, 55 FLRA 246, 250-51 (1999) (Back Pay Act, 5 U.S.C. § 5596(b)(1) and (2)(A), explicitly provides that ULP remedies shall be payable with interest which operates as an explicit waiver of sovereign immunity); Department of Defense Dependents Schools, 54 FLRA No. 37, 54 FLRA 259, 264-68 (1998) (repudiation of a settlement agreement by refusing to accord priority to the requests of certain employees to be transferred off the island of Lajes which also effectively denied opportunities to former employees to return to the island remedied by paying employees who were denied the opportunity to return to the island for any losses they incurred, including the 5% hardship pay that employees on the island receive); U.S. Department of Health and Human Services, 54 FLRA No. 106, 54 FLRA 1210, 1221-23 (1998) (transit subsidies constitute pay, allowances, or differentials).


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Footnote # 54 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Social Security Administration, Baltimore, Maryland, 55 FLRA No. 43, 55 FLRA 246, 250 (1999) (the remedy for the failure to comply with an arbitrator's award requiring the payment of backpay includes the payment of interest on those monies from the date the award became final and binding).


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Footnote # 55 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Federal Aviation Administration, 55 FLRA No. 203, 55 FLRA 1271, 1276-77 (2000) (FAA) (citing AFGE, SSA Council 220 v. FLRA, 840 F.2d 925, 930 (D.C. Cir. 1988) (improper repudiation of an agreement caused unit employees to suffer the loss of monetary awards they otherwise would have received but for the unfair labor practice).


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Footnote # 56 - Parts I through V - Guidance on Seeking Remedies for ULPs
   U.S. Department of Agriculture, Food Safety and Inspection Service, Washington, D.C., 55 FLRA No. 148, 55 FLRA 875, 875-76 (1999) (respondent ordered to reimburse the employee for the losses incurred as a result of a five-day suspension, including backpay with interest, and any other benefits lost due to the suspension).


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Footnote # 57 - Parts I through V - Guidance on Seeking Remedies for ULPs
   Air Force Flight Test Center, Edwards Air Force Base, California, 55 FLRA No . 21, 55 FLRA 116, 125 (1999) (retroactive promotions with backpay and interest); Indian Health Service, Crownpoint Comprehensive Health Care Facility, Crownpoint, New Mexico, 53 FLRA No. 92, 53 FLRA 1161, 1162 (1998) (a change in work schedules remedied by a make- whole remedy for any salary differential or any other compensation lost); and Air Force Materiel Command, Warner Robbins Air Logistics Center, Robbins Air Force Base, Georgia, 53 FLRA No. 88, 53 FLRA 1092, 1094 (1998) (section 7116(a)(1) and (5) unilateral implementation in work assignments remedied by paying lost overtime).


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Footnote # 58 - Parts I through V - Guidance on Seeking Remedies for ULPs
   5 U.S.C. § 5596(b)(1)(A)(ii). These standards are: (1) attorney fees may be incurred by a union's staff attorney, an attorney retained by the union, or an attorney retained by the individual employee; (2) an employee is the prevailing party if the employee has obtained all or a significant part of the relief sought; (3) the interest of justice standard is met any of five criteria set forth in Allen v. United States Postal Service, 2 MSPR 420 (1980) and National Association of Government Employees, Local R5-188 and U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina, 54 FLRA No. 122, 54 FLRA 1401 (1998) is met; and (4) the amount of the award must be reasonable.


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Footnote # 59 - Parts I through V - Guidance on Seeking Remedies for ULPs
   INS, Los Angeles, 52 FLRA at 105 (no legal authority to order a make-whole remedy for employees who incurred a monetary loss as a result of a change in parking policy).


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Footnote # 60 - Parts I through V - Guidance on Seeking Remedies for ULPs
   FAA, 55 FLRA at 1276-77 (2000) (remedy of make- whole relief for lost appraisal-linked awards due to repudiation of MOU is equitable in nature--the relief is the very thing that was improperly withheld); U.S. Department of Veterans Affairs, 55 FLRA No. 195, 55 FLRA 1213, 1216 (2000) (Department of VA) (remedy requiring respondent to reduce parking rates for a period of time necessary to offset the difference between the unlawfully implemented rate and the former rate until such time as the employees have been fully reimbursed is equitable); U.S. Department of Transportation, Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 55 FLRA No. 4