Professional Airways Systems Specialists v. Federal Labor Relations Authority

Citations: 258 U.S. App. D.C. 14; 809 F.2d 855; 124 L.R.R.M. (BNA) 2376; 1987 U.S. App. LEXIS 1086Docket: Nos. 85-1769, 85-1827

Court: Court of Appeals for the D.C. Circuit; January 15, 1987; Federal Appellate Court

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The consolidated cases involve the Federal Labor Relations Authority (FLRA) determining that the Federal Aviation Administration (FAA) committed unfair labor practices by failing to bargain over the impacts of organizational changes. The FLRA granted relief but denied back pay to petitioners based on a per se rule under the Back Pay Act, which denies back pay when an agency retains the right to act but commits an unfair labor practice during the process. The court found the FLRA's nexus requirement between the violation and pay loss lawful, but the per se rule contrary to the Back Pay Act. 

In the first case, the FAA's reorganization reduced premium pay for technicians, and in the second, a reduction-in-force (RIF) led to an employee's discharge. Both cases involved the FAA's refusal to engage in impact and implementation bargaining, violating section 7116(a)(5) of the Federal Service Labor-Management Relations Statute. Administrative Law Judges recommended restoring the status quo, but differed on back pay eligibility; one recommended back pay, while the other denied it. The FLRA upheld the latter's denial and vacated the back pay award in the first case, citing a lack of evidence for a 'but for' nexus. The Union subsequently petitioned the court for review of both orders, leading to the consolidation of the cases. The primary question is the consistency of the FLRA's interpretation of the Back Pay Act with the statute itself, which entitles employees affected by unjustified personnel actions to back pay reflective of what they would have earned.

The FLRA has established a two-part test for authorizing back pay under the Back Pay Act, requiring a determination that an employee suffered an adverse effect from an unjustified personnel action and that the employee would not have experienced a loss of pay but for that action. The Union agrees that this 'but for' criterion aligns with the statute's language. However, the FLRA has implemented a per se rule that denies back pay for violations related to 'impact and implementation' bargaining. This means that when an agency fails to engage in such bargaining, the affected employee cannot meet the 'but for' standard. The FLRA argues that 'impact and implementation' bargaining is procedural and that it cannot reliably predict outcomes from such bargaining, suggesting that it is speculative to assume it could have prevented pay losses. This view contradicts the fundamental purpose of collective bargaining, which is designed to facilitate meaningful negotiations and protect public interest, as recognized by Congress in the Federal Labor Relations Act. The judiciary has also affirmed that procedural violations can harm employees and warrant back pay, even when the agency has the right to implement the underlying action. For example, in Ryder v. United States, the court ruled that significant procedural defects in a personnel action could invalidate the legality of that action, leading to back pay.

In Camero v. United States, the Court of Claims permitted an employee to recover back pay despite a proper discharge, citing a procedural violation regarding ex parte communication. The Merit Systems Protection Board similarly ruled in Phelps v. Department of Labor that an employee was entitled to reinstatement and back pay due to the agency's failure to provide a work appraisal prior to a Reduction in Force (RIF), even without assurance of retention. The FLRA attempted to differentiate these cases by claiming the procedural rights involved were meant for individual employees, while the current case only concerned the Union's institutional rights. This argument is rejected, as 'impact and implementation' bargaining is intended to protect adversely affected employees. The refusal to bargain impacts individual employees directly, confirming that the Union represents its members' interests. The FLRA's 'but for' test regarding procedural violations is criticized for failing to acknowledge the inherent difficulties employees face in proving that unutilized bargaining would have prevented pay loss. Additionally, the Union contends that the FLRA has inconsistently deviated from prior rulings without adequate explanation. The court agrees, noting that the FLRA previously awarded back pay in a similar case (IRS, Dallas District) but has since changed its stance without sufficient justification. Consistency in applying legal precedents is emphasized, and the FLRA's failure to articulate the rationale for its shift in approach is deemed inadequate.

Two administrative units (AUs) reached different conclusions regarding back pay for identical violations, leading to confusion within the Federal Labor Relations Authority (FLRA). The FLRA's General Counsel has interpreted the 'but for' test to imply that back pay is warranted for violations related to 'impact and implementation' bargaining. The FLRA is required to provide a reasoned explanation for its rules and any deviations from established law upon remand. The ruling is limited, clarifying that while the Back Pay Act allows for back pay awards when employees demonstrate a causal link between violations and lost pay, it does not guarantee such awards universally. 

The excerpt also discusses the rights of the Professional Airways Systems Specialists Union to negotiate arrangements for employees affected by management decisions, which the Union acknowledges as nonbargainable. The AU’s recommendations in separate cases varied, with one suggesting back pay without justification and the other denying it due to an inability to prove causation. The FAA initially contested back pay recommendations but later withdrew its exceptions, indicating compliance. The FLRA's interpretations of the Back Pay Act are respected but not binding on courts, which may interpret the statute independently, considering Congressional intent. The Comptroller General has similarly applied a 'but for' test in Back Pay Act cases.

In the discussed cases, employees might have been better off without the procedural violations, as the FAA could have agreed to maintain existing work schedules or chosen to lay off less senior employees. While the FLRA notes that these cases do not explicitly reference the Back Pay Act, they illustrate the principle that procedural violations can lead to back pay awards. The examples provided underscore that an agency's procedural missteps can activate various remedies, including back pay, though it is emphasized that not all violations automatically result in such compensation. Employers retain the right to prove that the necessary causal connection for back pay, as outlined in the Back Pay Act, does not exist. Relevant cases supporting this principle include decisions from the Department of Agriculture and the Veterans Administration.