American Federation of Government Employees, AFL-CIO v. Federal Labor Relations Authority
| Decision Date | 11 March 1986 |
| Docket Number | P,AFL-CI,No. 85-1004,85-1004 |
| Parties | 121 L.R.R.M. (BNA) 3035, 251 U.S.App.D.C. 335 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,etitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William J. Stone, with whom Mark D. Roth, Washington, D.C., was on brief, for petitioner.
Pamela P. Johnson, Atty., Federal Labor Relations Authority, with whom Ruth E. Peters, Sol., Steven H. Svartz, Deputy Sol., and William E. Persina, Associate Sol., Federal Labor Relations Authority, Washington, D.C., were on brief, for respondent.
Before WRIGHT and EDWARDS, Circuit Judges, and DAVIS, * Circuit Judge, United States Court of Appeals for the Federal Circuit.
Opinion PER CURIAM.
The American Federation of Government Employees, AFL-CIO (AFGE or Union), seeks review of the decision of the Federal Labor Relations Authority (FLRA or Authority) denying the Union's demand that the FLRA not withdraw an unfair labor practice complaint previously issued by the Authority. The question is whether the Authority's General Counsel properly exercised his discretion, under the Federal Service Labor-Management Relations Statute, 5 U.S.C. Secs. 7101-7135 (1982) (Statute), in determining that an informal settlement agreement (which did not call for full status quo ante relief or back pay) provided an adequate remedy effectuating the purposes of the Statute, and therefore appropriately withdrew the unfair labor practice complaint. We uphold the General Counsel's exercise of his discretion in this particular case, without accepting for the future the argument that the imposition of budget cuts (coupled with a claim that disruption will result from status quo ante relief) is generally a legitimate reason for the FLRA to exercise its discretion to deny back pay.
On December 29, 1983, the Equal Employment Opportunity Commission (EEOC or agency) implemented an immediate freeze on hiring after substantial reductions were imposed by Congress on EEOC's fiscal year 1984 budget. Immediately thereafter, the agency imposed a freeze on all promotions, effective January 8, 1984. Approximately 150 employees were affected. 1 The freeze on promotions affected employees within the bargaining unit represented by AFGE's affiliate, National Council of EEOC Locals, Council No. 216 (Council 216). Council 216 sought to negotiate the impact and implementation of the promotion freeze with the EEOC. The EEOC refused, however, to enter into such negotiations.
On January 20, 1984, Council 216 filed an unfair labor practice charge against the EEOC with the Regional Director of the Authority. That charge alleged that the EEOC violated a negotiated agreement that the parties had earlier entered into, and also violated 5 U.S.C. Secs. 7116(a)(1), (5), and (8), by unilaterally and without prior notice changing the terms and conditions-of-employment of bargaining unit employees, and by imposing the freeze on promotions without affording the Union an opportunity to meet and bargain over the impact and implementation of the freeze.
The FLRA's Acting Regional Director (Regional Director) investigated the Union's allegations and issued a Complaint and Notice of Hearing on April 30, 1984. The complaint alleged, in relevant part, that the agency issued the promotion freeze without "affording the Union prior notice and an opportunity to negotiate over the impact and implementation of the change in working conditions" and that the employer has "failed and refused to negotiate with the Union over the impact and implementation of the promotion freeze."
A settlement agreement proposed by the Regional Director was signed by the agency's representatives on June 26, 1984. The settlement agreement, consisting primarily of a notice to employees, provided in pertinent part:
WE RECOGNIZE the NATIONAL COUNCIL OF EEOC LOCALS # 216, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, as the exclusive representative of a unit of our employees appropriate for collective bargaining.
WE WILL NOT unilaterally change the terms and conditions of employment for unit employees without notifying ... LOCAL # 216 ... and giving it the opportunity to negotiate over the impact and procedures for implementation of such changes.
WE WILL negotiate with the ... LOCAL # 216 ... upon request, over the impact and implementation of a freeze in unit employees' career ladder promotions effective January 8, 1984.
WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.
After reviewing the settlement agreement, Council 216 objected to it, principally because it did not restore the parties to the status quo ante and therefore gave an inadequate remedy. The Union noted that the agreement failed to provide any relief to those employees who had been denied timely promotions, including some who had been placed on different competitive levels as a consequence of the promotion freeze.
On July 6, 1984, the Regional Director approved the settlement agreement over AFGE's objections. 2 With respect to the Union's request for status quo ante relief, the Regional Director determined that status quo ante relief, in the form of retroactive promotions and corresponding back pay for employees affected by the January 8, 1984 promotion freeze, was not appropriate in the circumstances since the implementation of the freeze on employee promotions was necessitated by budget constraints.
Council 216 appealed the Regional Director's determination to the Authority's General Counsel. By letter dated November 28, 1984, the General Counsel denied Counsel 216's appeal and agreed with the Regional Director's determination that the settlement effectuates the purposes of the Statute. In this respect, the General Counsel noted that:
the Acting Regional Director determined that a status quo ante remedy was not appropriate because the implementation of the freeze in employee promotions was necessitated by budgetary constraints which similarly constrained against retroactive promotions and corresponding backpay for employees affected by the promotion freeze (which would be encompassed in any return to the status quo ante ). Thus, in effect, the Acting Regional Director determined that the inclusion of a status quo ante remedy, under the circumstances of this case, where the Agency had sustained budget cuts also necessitating a hiring freeze and a reduction-in-force, would result in an excessive degree of disruption in the efficiency and effectiveness of the Agency's operations.
On appeal to this court, 3 petitioner AFGE contends that this informal settlement agreement fails to fulfill the purposes of the Statute and must be vacated. Respondent FLRA argues, first, that the FLRA's General Counsel's determinations are entitled to special deference and, second, that he properly exercised his discretion under the Statute in determining that the settlement agreement provides an adequate remedy which effectuates the legislative purposes.
Under the Statute the FLRA has broad discretion (as does the National Labor Relations Board (NLRB or Labor Board) under the National Labor Relations Act (Labor Act) 4) in framing appropriate remedies for unfair labor practices and determining whether to enter into settlement agreements. 5 The FLRA is entitled to "considerable deference when it exercises its 'special functions of applying the general provisions of the [Statute] to the complexities' of federal labor relations." Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) (BATF). This deferential standard is reflected in 5 U.S.C. Sec. 7118(a)(7)(D) which provides that the Authority may order offending agencies and labor organizations to undertake "such ... actions as will carry out the purpose of [the statute.]" However, as the Supreme Court stated in Detroit Edison Co. v. NLRB, 440 U.S. 301, 316, 99 S.Ct. 1123, 1132, 59 L.Ed.2d 333 (1979), 6 See also BATF, 104 S.Ct. at 444 () (citations omitted).
This court has previously recognized that Congress intended the FLRA's role in adjudicating unfair labor practice cases in the federal sector to be similar to that of the NLRB's in the private sector. Turgeon v. FLRA, 677 F.2d 937, 939-40 (D.C.Cir.1982); see also BATF, 104 S.Ct. at 442, 444. It is therefore appropriate that we consider the decisions of the NLRB in unilateral change cases. In such instances, the NLRB will normally order that the status quo ante be restored and that employees be made whole. E.g., Atlas Tack Corp., 226 NLRB No. 222 (1976). This course of action is in accord with Supreme Court precedent. In Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 192-94, 61 S.Ct. 845, 851-52, 85 L.Ed. 1271 (1941), the Court recognized that Congress intended that the Board and the courts, in fashioning remedies under the NLRA, be mindful of restoring the situation, as nearly as possible, to that which would have been obtained but for the illegal discrimination.
The NLRB typically exercises its discretion to deviate from the general rule of status quo ante relief in only a few narrow categories of cases. Where the employer has closed a substantial portion or all of its business as part of its unfair labor practice, the NLRB may not order an employer to resume operations in order to restore the status quo ante if such relief would cause undue hardship. See, e.g., Great Chinese American Sewing Co. v....
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