National Treasury Employees Union v. Federal Labor Relations Authority
| Decision Date | 23 November 1988 |
| Docket Number | No. 87-1165,87-1165 |
| Citation | 856 F.2d 293 |
| Parties | 129 L.R.R.M. (BNA) 2274, 272 U.S.App.D.C. 339 NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Cary P. Sklar, with whom Lois G. Williams, Gregory O'Duden, and Michael J. Wolf, Washington, D.C., were on the brief, for petitioner.
William E. Persina, Deputy Sol., Federal Labor Relations Authority, with whom Ruth E. Peters, Solicitor, and Arthur A. Horowitz, Associate Sol., Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent.
Before MIKVA, RUTH BADER GINSBURG, and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
In February 1987, the Federal Labor Relations Authority ("the Authority") held that the Internal Revenue Service ("IRS" or "the agency") unlawfully refused to bargain with the petitioner, National Treasury Employees Union ("NTEU" or "the union"), over employee parking arrangements at the IRS' new office outside Houston, Texas. The Authority ordered the IRS to bargain with the union. Petitioner maintains that the Authority erred in failing to require retroactive application of any agreement resulting from the order to bargain. We agree that the Authority should have issued a retroactive bargaining order ("RBO") and reverse and remand to the Authority for redetermination of the remedy.
In September 1982, the IRS notified the NTEU of a proposed relocation of employees from two downtown offices to a new suburban location outside Houston known as Briarpark. The union proposed to negotiate a number of matters affected by the relocation, including employee parking. Because the IRS claimed it could not yet furnish information concerning its leasing agreement with the building owner, negotiation on this issue was temporarily deferred. In January 1983, the IRS asked the union to enter an interim agreement to facilitate the agency's arrangement with Allright Auto Parks to manage the parking facilities. Unaware that the IRS had already signed a contract with Allright in November, the NTEU negotiated an interim agreement providing that all but 14 spaces would be available to employees at a monthly charge of $20 per space on a first come-first served basis. When the parties met later that month to resume negotiations, the union put forward different proposals concerning parking charges and the number of spaces reserved to management, but the parties were unable to come to a final agreement.
In subsequent meetings, the IRS refused to negotiate further over parking arrangements. The IRS bargaining team first insisted that General Services Administration regulations precluded the agency from paying for parking, then claimed that it had not been delegated authority by the Regional Commissioner to agree to finance parking, and later asserted that the authority to arrange parking was reserved to the Briarpark building owner. Finally, the IRS argued that it had no duty to bargain because no material change in working conditions had occurred with the relocation.
The NTEU filed an unfair labor practice charge with the Authority alleging that the IRS had refused to bargain in good faith in violation of section 7116(a)(5) of the Federal Labor-Management Relations Statute, 5 U.S.C. Secs. 7101-7135 (1982 & Supp. 1988) ("the Statute"). The Authority agreed that the IRS violated its duty to bargain over payment and allocation of employee parking spaces. The Authority ordered the IRS to bargain in good faith over the NTEU's proposals, but denied the union's request that retroactive effect be given to any resulting agreement. The Authority justified its decision to confine the remedy to a prospective bargaining order by reiterating its arguments in Environmental Protection Agency and American Federation of Government Employees, 21 F.L.R.A. 786 (1986) ("EPA & AFGE "). The Authority stated that the prospective bargaining order was an adequate remedy for the IRS' unlawful refusal to bargain because it allowed the parties to address the effects on unit employees of the change in the parking situation resulting from relocation. The Authority explained that the order preserved the parties' flexibility by allowing them to adopt a variety of terms while leaving them free to agree to retroactive application.
NTEU now petitions this court for reversal of the Authority's denial of its request for a retroactive bargaining order. We note in passing that the correctness of the Authority's determination that the IRS engaged in an unlawful labor practice when it refused to negotiate over employee parking is not before us--the sole issue upon review is whether the Authority, given its finding of an unfair labor practice in this case, abused its discretion by not imposing a retroactive bargaining order.
We agree with the NTEU that the Authority abused its discretion by failing to mandate retroactive application of an agreement between the parties concerning parking. We take issue with the Authority's view that a retroactive bargaining order is an extraordinary remedy requiring special justification, and with its specific application of that approach in a case such as this where monetary compensation is practicable. We reiterate, in accordance with recent holdings of this court, that to effect the deterrent and remedial goals of the Statute, the Authority must award the fullest measure of "make whole" relief. Where, as here, the congressional intent that unlawful conduct be deterred and "make whole" relief be provided can be respected only by issuing an RBO, and where such an order would not unduly disrupt federal agency administration, we hold that an RBO is required.
Several sections of the Statute define the remedial authority and responsibility of the Authority. These provisions grant broad discretion to the Authority to fashion remedies for violations of the Statute. Section 7105(g)(3) provides that the Authority may require an agency to take any remedial action it considers appropriate to carry out the policies of the Statute. Moreover, under section 7118(a)(7), "[i]f the Authority * * * determines * * * that the agency * * * has engaged in or is engaging in an unfair labor practice, then [the Authority] * * * shall issue * * * an order * * * (B) requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect; * * * or (D) including * * * such other action as will carry out the purpose of this chapter."
Although the principles set forth in Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), require us to defer to an agency's interpretation of the statute it administers when the statute is silent or ambiguous with respect to a specific issue, see id. at 843, 104 S.Ct. at 2781, we find in this case that the Authority's construction of the Statute fails to implement the clear intent of Congress. Cf. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78 L.Ed.2d 195 (1983) () (citations and internal ellipsis omitted).
This court has recently stressed that both the remedial responsibility of the Authority and the underlying purpose of the Statute must be understood in light of Congress' intention that "the FLRA's role in adjudicating unfair labor practice cases in the federal sector [should] be similar to that of the NLRB's in the private sector." AFGE v. FLRA, 785 F.2d 333, 336 (D.C.Cir.1986) (per curiam). Thus, in cases where an agency unlawfully effects a unilateral change in working conditions, the Authority, like the NLRB, should restore the status quo ante whenever possible, consistent with respect for management's prerogatives under section 7106(a) and the overall goal of agency efficiency. See AFGE, SSA Council 220 v. FLRA, 840 F.2d 925 (D.C.Cir.1988). If complete status quo ante ("SQA") relief is inappropriate or infeasible, individual "make whole" relief should nevertheless be granted to the extent consistent with the limiting principles already noted. Id. at 929-30 (). The award of "make whole" relief to remedy unlawful agency action is especially appropriate in the case where the relief takes the form of a monetary award. See AFGE v. FLRA, 785 F.2d at 337 (). Back pay is one form of such "make whole" relief, but the principle properly applies to any monetary award that compensates employees for losses resulting from unilateral change. As this court has recognized, "such individualized relief is unlikely to be as disruptive as a sweeping institutional remedy." SSA Council 220, 840 F.2d at 930. Thus, a remedial determination that withholds monetary compensation for deprivations suffered by employees as a result of unlawful employer action is rarely justified, because "rarely will there be a sound statutory reason to withhold such recompense." Id.
An approach to remedies that systematically fails to deter noncompliance, or dilatory compliance, with the...
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National Treasury Employees Union v. Federal Labor Relations Authority
...See id. at 788-91. A divided panel of this court granted the union's petition for review, see National Treasury Employees Union v. Federal Labor Relations Auth., 856 F.2d 293, 296 (D.C.Cir.1988), but the full court vacated the panel decision on November 23, 1988 and granted rehearing en ban......