[ v21 p786 ]
21:0786(98)CA
The decision of the Authority follows:
21 FLRA No. 98
ENVIRONMENTAL PROTECTION AGENCY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 3-CA-2767
3-CA-2803
3-CA-2825
(16 FLRA 602)
DECISION AND ORDER ON REMAND
I. Statement of the Case
This case is before the Authority pursuant to a remand from the
United States Court of Appeals for the District of Columbia Circuit "for
a fuller explanation of its choice of remedy or for reconsideration of
its decision."
II. History of the Case
A. The Authority's Decision
On November 30, 1984, the Authority issued its Decision and Order in
Environmental Protection Agency, 16 FLRA 602, adopting the decision of
its Administrative Law Judge that the Respondent had violated section
7116(a)(1) and (5) of the Statute by implementing procedures for the
establishment of performance standards and critical elements of unit
employee positions without notifying and bargaining in good faith with
the Charging Party (the Union) over such procedures, and by failing and
refusing to negotiate over ground rules for such negotiations or
conditioning any meeting or negotiations on the submission by the Union
of specific, substantive, written proposals concerning the performance
standard-setting process.
To remedy the unfair labor practice found, the Judge had recommended
that the Respondent be ordered to bargain over ground rules for
negotiations and concerning procedures for the establishment of
performance standards and critical elements of employee positions, and
to give retroactive effect to any agreement reached. The Authority
modified the Judge's recommended Order by deleting the requirement that
retroactive effect be given to any agreement reached as a result of
bargaining, stating that "it is the opinion of the Authority that a
prospective bargaining order will fully remedy the violations found."
B. The Court's Opinion
On February 5, 1986, the Court issued its opinion in American
Federation of Government Employees, AFL-CIO v. FLRA, No. 85-1057 (D.C.
Cir. Feb. 5, 1986). The Court, acknowledging that the Authority has
broad discretion to order remedies in unfair labor practice cases, and
acknowledging that an explanation for its choice of remedy is not
necessary in all cases, concluded that it could not discern from the
Authority's decision in this case why the Judge's recommended remedial
order had been modified. The Court thus remanded the case.
III. Reconsideration on Remand
A. The Judge's Decision
The Respondent pointed out in its brief to the Judge that it had
taken the action here in question in response to a Congressional mandate
contained in 5 U.S.C. Section 4302, and implementing regulations
published by the Office of Personnel Management, which required the
agency to issue revised performance standards by a specific date. In
view of this Congressional mandate, the General Counsel's brief to the
Judge did not request a status quo ante remedy. The General Counsel
also acknowledged that "overriding exigencies involved" would make a
status quo ante remedy inappropriate. Nonetheless, the General Counsel
urged that the Judge should order retroactive application of agreed upon
terms, rather than a prospective bargaining order, because prospective
bargaining orders are inadequate in general and a prospective bargaining
order here would necessarily limit the Union's opportunity to bargain
about the effects of any of the changes already made. The Judge did not
have before him specific allegations with regard to the effect that
retroactive application of agreed upon terms might have upon the
operations of the agency. The Judge granted the remedy requested by the
General Counsel, stating without supplying any rationale that he agreed
such an order would best effectuate the purposes and policies of the
statute.
B. Positions of the Parties
In its exceptions to the Judge's decision, the Respondent argued that
to make retroactive changes in already established performance standards
would have the effect of negating a Congressional mandate; that such a
remedy would seriously interfere with the effectiveness of the agency's
operations; and that, in any event, none of the changed performance
standards had been applied yet to any of the employees represented by
the Union.
In its opposition to the Respondent's exceptions, the Union again
argued as it did before the Judge that the nature of the Respondent's
violation justified the granting of a status quo ante remedy. It also
argued alternatively that the retroactive remedy ordered by the Judge
was acceptable, and took issue with the factual and legal arguments of
the Respondent.
IV. Analysis
The Authority notes that the Respondent was acting under a
Congressional mandate requiring the issuance of revised performance
standards by a specific date, and that the General Counsel conceded that
a return to the status quo ante was unwarranted. The Authority finds
convincing the Respondent's arguments with regard to the potential
disruption that ordering retroactive effect to any bargain reached would
have on the agency's operations. Taking all the circumstances of this
case into consideration, we adhere to our original determination that a
prospective bargaining order will best effectuate the purposes and
policies of the Statute.
A prospective bargaining order is neither inadequate nor inherently
restrictive of the parties' rights to address the effects on unit
employees of changes already made, as argued by the General Counsel.
Rather, it allows the parties the flexibility to bargain freely with
regard to how past actions may have affected any given employee.
Bargaining which explores such effects may itself reveal situations that
call for retroactive remedial action, about which the parties are free
to agree. Indeed, the parties might be less reluctant and more
expeditious in reaching an overall agreement if they retain the
flexibility to determine which provisions will be given retroactive
effect. Further, since the issuance of our original Decision in this
case, the Authority has had occasion to deal generally with the question
of whether to grant remedies that require retroactive application of
bargaining terms. In Federal Aviation Administration, Washington, D.C.,
19 FLRA NO. 59 (1985), the Authority adopted the Judge's recommendation
to deny such a requested remedy, stating that:
Where, as here, the basic remedy requires the parties to engage
in negotiations, it is entirely possible that an impasse may occur
during bargaining and the matter will ultimately be sent to the
Federal Service Impasses Panel (FSIP) for resolution. In that
event, the FSIP, when considering impassed proposals, would
properly consider a proposal for retroactive application and
imposing such a requirement at the present time would deprive the
FSIP of that option and thereby impair the flexibility the FSIP
requires to execute its statutory function.
Moreover, the remedy ordered in this case is similar to the type of
remedy the Authority has ordered for similar violations of the Statute.
For example, in Internal Revenue Service (District, Region, National
Office Units), 16 FLRA 904 (1984), the Authority adopted its Judge's
recommended order refusing to require retroactive application of the
parties' negotiation because "(b)y ordering retroactivity as part of the
remedy I would essentially be imposing a term of a proposal on (the
agency), a matter I am not disposed to do"; in Internal Revenue
Service, 16 FLRA 845 (1984), the Authority rejected its Judge's
recommended order requiring the agency to give retroactive effect to any
agreement reached with the union in circumstances where the agency had
unlawfully failed to give the union adequate prior notice of the
implementation of its Taxpayer Compliance Measurement Program and
refused to bargain as requested on the procedures to be utilized in
implementing the program or concerning appropriate arrangements for
affected employees; in Department of Health and Human Services,
Washington, D.C., 16 FLRA 288 (1984), the Authority refused to order
that any agreement reached between the parties as a result of further
bargaining over reduction-in-force (RIF) procedures be applied on a
retroactive basis, concluding that an order requiring the agency to
bargain concerning negotiable RIF procedures would best effectuate the
purposes and policies of the Statute; and in Department of the
Treasury, U.S. Customs Service, Region VIII, San Francisco, California,
9 FLRA 606, 608 n.3 (1982), aff'd, 732 F.2d 703 (9th Cir. 1984), the
Authority refused to adopt the ALJ's recommended order to the extend
that it would have required giving retroactive effect to whatever final
agreement the parties would reach concerning starting and quitting times
and lunch hours of newly-established tours of duty because "(s)uch an
order would be inconsistent with the Authority's conclusion that a
status quo ante remedy is unwarranted in the circumstances of this case,
and, further, would be speculative."
The circumstances of this case are different from circumstances in
which the Authority has ordered parties to give retroactive effect to
the provisions of a collective bargaining agreement, a remedy which the
Authority may, but is not required, to order. 5 U.S.C. Section
7118(a)(7)(B) (1982). In this regard, the Authority has ordered a
retroactive application remedy in a case where the agency has refused to
bargain on a specific proposal which was substantially identical to a
proposal previously found by the Authority to be within the duty to
bargain. Veterans Administration Regional Office (Buffalo, New York),
10 FLRA 167 (1982). The Authority has also ordered an agency to
incorporate into the parties' collective bargaining agreement the
specific terms of an interest-arbitration award retroactively to the
date the award became final and binding. U.S. Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151
(1984), aff'd, 775 F.2d 727 (6th Cir. 1985), in which the agency had
unlawfully refused to implement the arbitration award to which no timely
exceptions had been filed and which therefore became final and binding;
the refusal to comply with the award constituted a failure to cooperate
in impasse procedures.
Thus, the Authority has ordered such a remedy in cases involving
violations of the Statute by refusing to bargain over specific proposals
which had previously been held by the Authority to be within the duty to
bargain or by refusing to implement the specific terms of an
interest-arbitration award to which timely exceptions were not filed,
rather than cases where specific proposals were not at issue, and where
the Authority issued a prospective bargaining order to remedy the
violation, as it did in this case.
V. Conclusion
The Authority is of the view that the rationale of the Federal
Aviation Administration and Internal Revenue Service cases cited above
applies equally to the circumstances of this case. We also conclude
that to grant the requested remedy and thus require retroactive
application of the parties' bargaining terms may unnecessarily disrupt
or impair the efficiency and effectiveness of the agency's operations.
Accordingly, we reaffirm our Decision and Order in Environmental
Protection Agency, 16 FLRA 602 (1984).
Issued, Washington, D.C., May 13, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III, Member
FEDERAL LABOR RELATIONS AUTHORITY