National Treasury Employees Union v. Federal Labor Relations Authority

• Decision Date: 03 May 1984
• Docket Number: No. 82-7534,82-7534
• Citation: 732 F.2d 703
• Parties: 116 L.R.R.M. (BNA) 2398 NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. United States Customs Service, Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 703

732 F.2d 703

116 L.R.R.M. (BNA) 2398

NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.

United States Customs Service, Intervenor.

No. 82-7534.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 11, 1983.

Decided May 3, 1984.

Gregory O'Duden, Washington, D.C., for petitioner.

William R. Tobey, Asst. Sol. Gen., F.L.R.A., Washington, D.C., for respondent.

Carl D. Cammarata, San Francisco, Cal., for intervenor.

Petition to Review an Order of the Federal Labor Relations Authority.

Before DUNIWAY, ALARCON, and BOOCHEVER, Circuit Judges.

DUNIWAY, Circuit Judge:

This case arises from an unfair labor practice proceeding under the Civil Service Reform Act of 1978, 5 U.S.C. Sec. 7101 et seq. (Supp. V 1981). At issue is whether denial by the Federal Labor Relations Authority of a status quo ante make-whole remedy was an abuse of the Authority's discretion. We hold that there was no abuse of discretion, and affirm the order of the Authority.

I. The Facts.

The facts are stipulated by the parties. In September 1979, the United States Customs Service informed the National Treasury Employees Union that Customs planned to establish, in addition to its existing daytime shift, three new shifts at Honolulu International Airport in order to cover a new schedule of incoming flights. The change minimized overtime payments to employees. Customs maintained that creating the new shifts was a nonnegotiable management right reserved to Customs by the Act. See 5 U.S.C. Sec. 7106. On November 4, 1979, while the parties were involved in negotiations, Customs unilaterally implemented the new hours, as follows:

Seven employees remained in the previously scheduled, unchanged tours of duty from 8:00 a.m. to 4:00 p.m. New tours of duty were established as follows: 1) 6:00 a.m. to 2:30 p.m., 2) 6:30 a.m. to 3:00 p.m., 3) 9:00 a.m. to 5:30 p.m.

E.R. 50. The Union's unfair labor practice charge followed. See 5 U.S.C. Secs. 7116(a)(1), 7116(a)(5), 7118.

The Authority's Administrative Law Judge concluded that Customs' refusal to bargain over the Union's proposals with regard to starting and quitting times violated the Act, and he ordered Customs to bargain over the shift times. He ordered a limited remedy:

To the extent that any final agreement reached by the parties results in different starting and quitting times and lunch hours than those unilaterally established on November 4 and 13, 1979, make whole any unit employees for any overtime loss he or she might have suffered since such dates.

Department of the Treasury, United States Customs Service, Region VIII, 1982, 9 FLRA 606, 618. Customs appealed to the Authority.

The Authority agreed that Customs violated the Act by refusing to bargain and affirmed the bargaining order. 9 FLRA at 608. The petitioning Union does not attack the bargaining order. The Authority, however, rejected any status quo ante remedy. It stated:

The Authority finds that such a remedy is not warranted herein. Thus, since this case involves the establishment of new shifts, there are no preexisting starting or quitting times, or lunch periods, which the Authority may now order the Respondent to reinstate while the parties engage in collective bargaining with respect thereto. Accordingly, the Authority finds that a status quo ante remedy is not appropriate herein, and therefore adopts the Judge's recommended Order in this regard. ²

9 FLRA at 607.

The Union attacks the denial of the status quo ante remedy as an abuse of the Authority's discretion, arguing that the proper remedy is to pay affected employees overtime pay as though Customs had not implemented the changes.

II. Jurisdiction.

Customs asserts that, pursuant to a pre-hearing agreement, none of the parties argued or presented evidence to the Judge supporting a status quo ante remedy. Customs says that the resulting lack of evidence in the record regarding such a remedy deprives this court of subject matter jurisdiction to consider a status quo ante remedy, because judicial review of the Authority's order must be "on the record." See 5 U.S.C. Secs. 706 (1976), 7123(c) (Supp. V 1981). The record indicates, however, that before the Judge's and the Authority's decisions the issue was squarely raised by the Union and the Authority's General Counsel in their post-hearing briefs. We find the record adequate for purposes of reviewing the propriety of the Authority's denial of a status quo ante remedy.

Nor are we persuaded that imposition of a status quo ante remedy would deprive Customs of due process. Assuming that Customs is entitled to due process, it has had full opportunity to present to the Authority and this court its arguments opposing such a remedy.

III. Denial of the Status Quo Ante Remedy.

A. Standard of Review.

The Act vests the Authority with broad discretion to fashion appropriate remedies for violations of its provisions. 5 U.S.C. Sec. 7105(g)(3). The Authority's decision is valid unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. Sec. 706(2)(A); Bureau of Alcohol, Tobacco and Firearms v. FLRA, 1983, --- U.S. ----, ---- n. 7, 104 S.Ct. 439, 444 n. 7, 78 L.Ed.2d 195 (1983). We must defer to the Authority's interpretations of the Act if they are reasoned and supportable. Navy Public Works Center v. FLRA, 9 Cir., 1982, 678 F.2d 97, 99.

We may look to decisions under the National Labor Relations Act for guidance by analogy. See, e.g., Turgeon v. Federal Labor Relations Authority, D.C.Cir., 1982, 677 F.2d 937, 939-40. However, the two acts are not identical. There is no right to strike against the government, and the Act defines matters that must be bargained about and others that are subject to bargaining only at the election of the government agency.

The Authority cannot arbitrarily impose different remedies in similar situations. Cf. Burinskas v. NLRB, D.C.Cir., 1966, 357 F.2d 822, 827 (NLRB cannot treat similar situations in dissimilar ways). To do so would be arbitrary.

In the case before us, the Authority consistently applied its reasoned and supportable precedent, United States Customs Service, Region V, 1982, 9 FLRA 116. There, until March 25, 1979, employees worked from 8:00 a.m. to 4:00 p.m. Monday through Friday. (9 FLRA 117.) Customs decided "to establish a second shift with hours of 2 pm to 10 pm, and to change the hours of the existing shift for most of the pilots and air officers to 10 am to 6 pm." (9 FLRA 117.) The Authority concluded:

The Authority agrees with the Judge that the decision to establish the second shift or tour of duty involved the "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty" within the meaning of section 7106(b)(1) of the Statute and, thus, was negotiable only at the election of the agency. In view of the Respondent's election not to negotiate the matter, the bargaining obligation with respect to that portion of the decision was limited to procedures to be observed in implementation of, and appropriate arrangements for employees adversely affected by, management's decision to establish the second shift.

(9 FLRA 118.) (footnote omitted). On the other hand, as to the original shift or tour of duty, the Authority held With regard to the decision to change the starting and quitting times of the previously existing first shift, however, and in disagreement with the Judge, the Authority finds that the Respondent had a duty to bargain with NTEU [the Union] concerning such conditions of employment inasmuch as the record fails to establish that the change effectuated by the Respondent was determinative of the numbers, types or grades of employees or positions assigned to a work project or tour of duty, so as to render the matter negotiable only at the Respondent's election under section 7106(b)(1) of the Statute.

Id. The Authority, as to the original shift, awarded a status quo ante remedy (9 FLRA 119). That question is not involved here. As to the new shift, the Authority held:

However, the Authority further finds that a status quo ante remedy is not warranted herein with respect to the impact and implementation of (as opposed to the decision to create) the newly established second shift.... In this regard, the Authority notes particularly that the Respondent acted within its reserved rights under section 7106(b)(1) of the Statute in establishing the new shift or tour of duty, and that, as a new shift, there were no preexisting starting and quitting times which the Authority may order the Respondent to reinstate while the parties engage in collective bargaining with respect thereto. Accordingly, the Authority finds that a status quo ante remedy is not required or necessary to effectuate the purposes and policies of the Statute concerning the new shift.

Id. at 119-20.

The decision is squarely in point here, and the Authority followed it. In this case the parties stipulated and the Judge found that Customs had established new shifts or tours of duty. United States Customs Service, Region VIII, 1982, 9 FLRA 606, 616. The Authority affirmed and adopted all of the Judge's findings. 9 FLRA at 606-07. The finding is the only one possible on this record. The Authority properly ordered Customs to negotiate the starting and quitting times and lunch hours of the newly established tours of duty. 9 FLRA at 608, p 2(a). Citing Customs, Region V (the only case cited in its decision), the Authority rejected the propriety of status quo ante remedies in this case. 9 FLRA at 607 n. 2, 608 n. 3.

The dissent says that usually a status quo ante remedy will best effectuate the purposes of the Act by compensating employees and deterring violations. We might think so, but the Authority, exercising its discretion to fashion appropriate remedies under 5 U.S.C. Sec. 7105(g)(3), rejected a status quo remedy under these...