Department of the Navy, Northern Division, Naval Facilities Engineering Command and National Federation of Federal Employees, Local 1430 (Authority decision, December 29, 1986)

Final FLRA decision. On remand, the Authority orders the Navy to restore an incentive awards committee's prior functions and bargain before changing them; it dismisses a separate allegation about impasse procedures. An aggrieved person may seek judicial review by filing a petition in 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 Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Navy removed review of several employee awards and ratings from a committee on which NFFE Local 1430 had an observer role. After a court reversed the Authority's earlier ruling and remanded for a remedy, the Authority held that the unilateral change required a return to the prior arrangement absent special circumstances. It ordered the Navy to restore the committee's functions, notify the union, bargain before future changes, and post a notice. The Authority dismissed a remaining complaint allegation about cooperation in impasse procedures.

Decision snapshot

• Authority: Unilateral change bargaining obligation under 5 U.S.C. § 7116(a)(5); remedial order under § 7118.
• Outcome: Status quo restoration, bargaining, and notice ordered; remaining impasse allegation dismissed.
• Key point: A unilateral change to a negotiable condition called for restoring the prior arrangement when no special circumstances were shown.

Full text (FLRA public release)

[ v24 p907 ]

24:0907(86)CA

The decision of the Authority follows:

24 FLRA No. 86

DEPARTMENT OF THE NAVY
NORTHERN DIVISION, NAVAL
FACILITIES ENGINEERING COMMAND
Respondent

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1430
Charging Party

Case No. 2-CA-1091
(19 FLRA No. 86)

DECISION AND ORDER ON REMAND

This case is before the Authority on remand from the U.S. Court of Appeals for the District of Columbia Circuit. The Authority issued its original Decision and Order in the case on August 12, 1985. The Authority found that the Respondent had not violated section 7116(a) and (5) when it unilaterally changed the functions of the Incentive Award Committee on which the Union had a role as an observer. Department of the Navy, Northern Division, Naval Facilities Engineering Command, 19 FLRA No. 86 (1985), rev'd and remanded sub nom., National Federation of Federal Employees, Local 1430 v. FLRA, No. 85-1648 (D.C. Cir. Nov. 6, 1986). In finding that the Respondent had not committed an unfair labor practice, the Authority relied on an earlier decision in National Treasury Employees Union and Internal Revenue Service, 14 FLRA 464 (1984), rev'd and remanded sub nom., NTEU v. FLRA, 793 F.2d 371 (D.C. Cir. 1986).

As indicated, the U.S. Court of Appeals for the District of Columbia Circuit subsequently reversed the Authority's decision in National Treasury Employees Union and Internal Revenue Service. In reversing the Authority's decision in that case, the court rejected the Authority's conclusion that the determination of whether a particular level of job performance warrants granting an incentive award is included within management's rights to assign work and direct employees. Upon consideration of the court's decision, the Authority sought remand of this case, which was then pending before the court on appeal.

On November 6, 1986, in response to the Authority's motion for remand in this case, the U.S. Court of Appeals for the District of Columbia Circuit, after citing the history noted above, reversed the Authority's previous decision and remanded the case "for a determination of a proper remedy for the employer's refusal to bargain."

The Authority accepts the court's opinion as the law of the case and consistent with that opinion shall fashion an appropriate remedial order. While agreeing with the Administrative Law Judge that a status quo ante remedy is appropriate, we disagree with his rationale in reaching that conclusion. We find, as contended by the General Counsel in his exceptions, that where management has made a unilateral change in a negotiable term and condition of employment, effectuation of the purposes and policies of the Statute requires a return to the status quo ante, absent special circumstances, in order not to render meaningless the material obligation to negotiate. Veterans Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA No. 37, slip op. at 4 n.3 (1986). Noting no evidence of special circumstances, we find that Respondent's bare assertion in its exceptions that implementation of a status quo ante remedy in this case would violate the requirements of 5 U.S.C. Section 4302 amounts to nothing more than mere conjecture and provides no basis for not imposing such a remedy in this case.

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is ordered that the Department of the Navy, Northern Division, Naval Facilities Engineering Command shall:

1. Cease and desist from:

(a) Unilaterally changing the functions of the Incentive Awards/Performance Appraisal Committee by removing from its purview any review and recommendation to the Commander as to Quality Step Increases, Outstanding Performance Ratings and Sustained Superior Performance Awards, for unit employees, without first notifying the National Federation of Federal Employees, Local 1430, the exclusive bargaining representative, and affording it the opportunity to bargain, to the extent consonant with law and regulations, on the decision to effectuate such action.

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

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Statute:

(a) Rescind and withdraw NORTHNAVFACENGCOM NOTICE 12451, dated June 24, 1981, and its provisions which removed from the purview of the Incentive Awards/Performance Appraisal Committee any functions as to its review and recommendation to the Commander concerning Quality Step Increases, Outstanding Performance Ratings and Sustained Superior Performance Awards, for unit employees.

(b) To the extent consonant with law and regulations, restore the procedure which existed prior to December 26, 1979 whereby the Incentive Awards/Performance Appraisal Committee reviewed proposed Quality Step Increases, Outstanding Performance Ratings, Sustained Superior Performance Awards, in addition to Unsatisfactory Ratings, Beneficial Suggestions, and Special Achievement Awards, and made recommendations thereon to the Commander.

(c) Notify the National Federation of Federal Employees Local 1430, the exclusive bargaining representative, of any intention to change the functions of the Incentive Awards/Performance Appraisal Committee, or to remove from its purview any review and recommendation to the Commander as to proposed awards, and, upon request, bargain with said representative, to the extent consonant with law and regulations, on the decision to effectuate such action.

(d) Post at its facilities at the Northern Division, Naval Facilities Engineering Command, Philadelphia, Pennsylvania, 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 Commander, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. Reasonable steps shall be taken to insure 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 II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply with it.

It is further ordered that the remaining allegations of the complaint concerning Respondent's failure to cooperate in impasse procedures of the Federal Service Impasses Panel are dismissed.

Issued, Washington, D.C. December 29, 1986.

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

NOTICE TO ALL EMPLOYEES

PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change the functions of the Incentive Awards/Performance Appraisal Committee by removing from its purview any review and recommendation to the Commander as to Quality Step Increases, Outstanding Performance Ratings and Sustained Superior Performance Awards, for unit employees, without first notifying the National Federation of Federal Employees, Local 1430, the exclusive bargaining representative, and affording it the opportunity to bargain, to the extent consonant with law and regulations, on the decision to effectuate such action.

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

WE WILL rescind and withdraw NORTHNAVFACENGCOM NOTICE 12451, dated June 24, 1981, and its provisions which removed from the purview of the Incentive Awards/Performance Appraisal Committee any functions as to its review and recommendation to the Commander concerning Quality Step Increases, Outstanding Performance Ratings and Sustained Superior Performance Awards, for unit employees.

WE WILL, to the extent consistent with law and regulation, restore the procedure which existed prior to December 26, 1979 whereby the Incentive Awards/Performance Appraisal Committee reviewed proposed Quality Step Increases, Outstanding Performance Ratings, Sustained Superior Performance Awards, in addition to Unsatisfactory Ratings, Beneficial Suggestions, and Special Achievement Awards and made recommendations thereon to the Commander.

WE WILL notify the National Federation of Federal Employees, Local 1430, the exclusive bargaining representative, of any intention to change the functions of the Incentive Awards/Performance Appraisal Committee, or to remove from its purview any review and recommendation to the Commander as to proposed awards, and, upon request, bargain with said representative, to the extent consonant with law and regulations, on the decision to effectuate such action.

Dated: . . . By: . . .

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

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region II, Federal Labor Relations Authority whose address is: 26 Federal Plaza, Room 3700 New York, New York, 10278; and whose telephone number is: (212) 264-5934.