Federal Aviation Administration and Professional Airways Systems Specialists (Authority decision, May 29, 1987)

Final FLRA decision. On court remand, the Authority supplements its earlier unfair labor practice order with a backpay remedy tied to the result of required bargaining over a reduction in force. The order makes backpay conditional on whether that bargaining establishes the employee should not have been separated. An aggrieved person may seek judicial review of a final Authority order by petitioning an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The FAA carried out an Albany, New York reduction in force without bargaining with Professional Airways Systems Specialists over its implementation. One employee lost his job and pay after declining a transfer. An earlier Authority order found a refusal-to-bargain violation but denied backpay; a federal appeals court sent the remedy issue back for a case-specific analysis. The Authority held that the violation and resulting pay loss supported adding a backpay remedy. The FAA must provide backpay for the separation period to the extent that the ordered bargaining yields an agreement that the employee should not have been separated, unless the parties agree otherwise.

Decision snapshot

• Authority: Refusal to bargain under 5 U.S.C. § 7116(a)(1) and (5); remedy under § 7118.
• Outcome: Earlier order supplemented with conditional backpay and notice posting.
• Key point: Backpay for an unlawful failure to bargain depends on whether the required bargaining establishes that the employee would have kept the job.

Full text (FLRA public release)

[ v27 p304 ]

27:0304(41)CA

The decision of the Authority follows:

27 FLRA No. 41

UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C.; FEDERAL AVIATION ADMINISTRATION, EASTERN REGION, JAMAICA, NEW YORK; AND FEDERAL AVIATION ADMINISTRATION, AIRWAYS FACILITIES SECTOR 810, ALBANY, NEW YORK Respondent

and

PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
Charging Party

Case No. 1-CA-30218
(20 FLRA No. 68)

DECISION AND ORDER ON REMAND

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit in Professional Airways Systems Specialists, MEBA, AFL-CIO v. FLRA, No. 85-1827 (D.C. Cir. Jan. 16, 1987). The case concerns whether the refusal-to-bargain violation in Department of Transportation, 20 FLRA 548 (1985) (DOT) warrants a remedy of backpay. /1/

II. History of the Case

A. Facts

In 1983 the Respondent informed representatives of the Charging Party (the Union) of a planned reduction-in-force (RIF) which would affect a unit employee (Mr. Panek) in Albany, New York. The Union requested bargaining on the implementation of the RIF. The Respondent refused the Union's request and implemented the RIF without bargaining. As a result of the RIF, Panek was separated from employment, after refusing a transfer to Saranac Lake, New York. The refusal to bargain gave rise to the complaint, alleging that the Respondent had violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute).

B. Administrative Law Judge's Decision

In DOT, the Judge rejected Respondent's view that it had no duty to bargain on the implementation of the RIF and concluded that Respondent's refusal to bargain violated the Statute. To remedy the violation, the Judge recommended that the Respondent be ordered to cease and desist from this conduct, to rescind the RIF and reinstate Panek upon request, and to bargain on the implementation of the RIF as requested by the Union. He concluded that a backpay remedy, requested in connection with Panek's separation, would be inappropriate. 20 FLRA 561.

C. Authority's Decision

On review, the Authority affirmed the Judge's decision that the Respondent violated the Statute by refusing to bargain and adopted the essence of his recommended remedy, agreeing with the Judge that the violation did not warrant a backpay remedy. 20 FLRA 548 n.2.

D. Court's Decision

In Professional Airways Systems Specialists, the court granted the petitions for review of DOT and the companion case of Federal Aviation Administration, Washington, D.C., 20 FLRA 273 (1985) (FAA). The court concluded that the Authority had applied a per se rule under the Back Pay Act by denying backpay in "impact and implementation" cases, and the court held that a per se rule in such cases is contrary to the Act. Slip op. at 2. Accordingly, the court remanded both cases to enable the Authority to fashion a proper test for awarding backpay in impact and implementation cases. The court expressed no opinion on whether the employees in the cases before it are entitled to backpay. Slip op. at 11.

III. Analysis

In Federal Aviation Administration, 27 FLRA No. 36 (1987) (FAA II) -- our decision on the remand in the companion case -- we reconsidered the issue of backpay in cases of a refusal to bargain over "impact and implementation," and we formulated an approach which we believe to be consistent with the Back Pay Act and the purposes and policies of the Statute. In sum, we recognized that a backpay award under the Back Pay Act requires determinations that:

(1) an employee was affected by an unjustified or unwarranted agency personnel action;

(2) the unjustified personnel action resulted in a withdrawal or reduction in pay, allowances, or differentials of the employee; and

(3) the withdrawal or reduction would not have occurred but for the unjustified action.

In FAA II we specifically noted that the first requirement is met when it is established that employees were affected by an agency unfair labor practice, including a refusal-to-bargain violation. The second requirement is met when it is shown that the agency personnel action which gave rise to the violation resulted in a withdrawal or reduction in the pay, allowances, or differentials of employees. In FAA II we decided that if these requirements are met in a refusal-to-bargain case, we will conclude that the violation warrants a remedy of backpay. This remedy will require an award of backpay which is consistent with the results of the bargaining ordered to correct the unfair labor practice, subject to the parties agreeing otherwise. Slip op. at 6.

IV. Conclusion: the backpay remedy in DOT, 20 FLRA 548

In DOT is was shown that the Respondent refused to bargain on the implementation of the RIF as required by the Statute. Accordingly, it is established that unit employees were affected by an unjustified or unwarranted personnel action. It was also shown that the unjustified personnel action -- implementation by the agency of a reduction-in-force in the Albany sector without bargaining as required by the Statute -- directly resulted in the separation from employment of Panek and a total withdrawal of his pay, allowances, and differentials. Applying to this case the approach we explained in detail in FAA II and have summarized here, we conclude that the Authority's prior order in this case should be supplemented with a backpay remedy. Since the bargaining order previously issued, which required Respondent to rescind its RIF and reinstate Panek upon request, it remains to require Respondent (absent agreement by the parties otherwise) to provide backpay to Panek consistent with the results of the ordered bargaining. The backpay remedy is limited to the period of Panek's separation as a result of Respondent's unilateral action.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the United States Department of Transportation, Federal Aviation Administration, Washington, D.C.; Federal Aviation Administration, Eastern Region, Jamaica, New York; and Federal Aviation Administration, Airways Facilities Sector 810, Albany, New York shall take the following affirmative action to effectuate the purposes and policies of the Statute --

1. Except as otherwise agreed by the Professional Airways
   Systems Specialists, MEBA, AFL-CIO, provide backpay to Mr. Andrew Panek, who suffered a withdrawal of his pay, allowances, and differentials because of his separation as a result of the reduction-in-force of the Federal Aviation Administration, Airways Facilities Sector 810, Albany, New York on July 23, 1983, to the extent that bargaining in compliance with the Authority's Order in DOT, 20 FLRA 548 (1985), resulted in an agreement that he should not have been separated.

2. Post copies of the attached Notice, on forms furnished by
   the Authority, at the facilities of Federal Aviation Administration, Washington, D.C.; Federal Aviation Administration, Eastern Region, Jamaica, New York; and Federal Aviation Administration, Airways Facilities Sector 810, Albany, New York. Upon receipt, the forms shall be signed by the Administrator of the Federal Aviation Administration, or a designee, and shall be posted and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered.

3. Notify the Regional Director, Region I, Federal Labor
   Relations Authority, in writing within 30 days of the date of this Order, as required under section 2423.30 of the Authority's Rules and Regulations of the steps which have been taken to comply with this Order.

Issued, Washington, D.C., May 29, 1987.

/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(1) The Union has requested permission to file a brief. Because the issue of a backpay remedy is adequately presented by the decision of the court remanding this case, we deny the Union's request.

APPENDIX

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY AND TO EFFECTUATE THE POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL provide backpay to Mr. Andrew Panek, who suffered a withdrawal of his pay, allowances, and differentials because of his separation as a result of the reduction-in-force at the Federal Aviation Administration, Airways Facilities Sector 810, Albany, New York on July 23, 1983, to the extent that bargaining in compliance with the Authority's Order in DOT, 20 FLRA 548 (1985), resulted in an agreement that he should not have been separated.
... (Agency or Activity)

Dated: ... By: ... (Signature) ... (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region I, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046 and whose telephone number is: (617) 565-7280.