National Treasury Employees Union v. Federal Labor Relations Authority, United States Customs Service, Intervenor

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: 1 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. 2 I. The Facts. 3 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…

dissenting.

The Authority’s broad discretion to fashion remedies must be exercised in a manner that will carry out the policies of the Act. See 5 U.S.C. § 7105 (g)(3). The Authority’s interpretations of those policies must be reasoned and supportable, Navy Public Works Center v. Federal Labor Relations Authority, 678 F.2d 97 , 99 (9th Cir.1982), and its actions may not be arbitrary, capricious, an abuse of discretion, or otherwise not in accord with the law. 5 U.S.C. § 706 (2)(A). Here, the Authority acted arbitrarily and gave too little weight to the policies of the Act in denying a status quo ante remedy.

Where an unlawful refusal to bargain results in a loss of income to the employees, a status quo ante remedy usually will best carry out the policies of the Act, unless substantial reasons exist not to impose such a remedy. Reimbursement of lost pay restores employees to the position they would have occupied absent the employer’s unfair labor practice, and vindicates public policy opposing such violations. Cf. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 188-89 (1973) (award of backpay for wrongful discharge restores economic status quo); Kallmann v. NLRB, 640 F.2d 1094,…

This case arises from an unfair labor practice proceeding under the Civil Service Reform Act of 1978, 5 U.S.C. § 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. § 7106 . On November 4, 1979, while the parties were involved in negotiations, Customs unilaterally implemented the new hours, as follows:

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

The Authority’s Administrative Law Judge…