NATIONAL TREASURY EMPLOYEES UNION, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
No. 87-1165.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 29, 1988. Decided Sept. 9, 1988.
Order Granting Rehearing En Banc Nov. 23, 1988.
856 F.2d 293
Before MIKVA, RUTH BADER GINSBURG, and SILBERMAN, Circuit Judges.
Dissenting Opinion filed by Circuit Judge SILBERMAN.
MIKVA, Circuit Judge:
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.
I. BACKGROUND
In September 1982, the IRS notified the NTEU of a proposed relocation of employees from two downtown оffices 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. Thе 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
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 en-
II. DISCUSSION
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.
A.
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.
Although the principles set forth in Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (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, 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 (1983) (although the Authority is entitled to considerable deference when it exercises its special function of applying the general provisions of the [Statute] to the complexities of federal labor relations, . . . reviewing courts . . . must not rubber-stamp administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.) (citations and internal ellipsis omitted).
This court has recently stressed that both thе 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
An approach to remedies that systematically fails to deter noncompliance, or dilatory compliance, with the Statute‘s directives is fundamentally at odds with the Authority‘s responsibilities. As our court pointed out in AFGE v. FLRA, Congress expected the Authority to vindicate the public policy of the Statute, expressed in the Findings and purpose provision, to encourage collective bargaining in the civil service. See 785 F.2d at 338 (citing
B.
The Authority argues that any preference for SQA or make whole relief does not extend to orders for retroactive application of bargaining agreements. The Authority maintains that an RBO is not in the same category as an SQA remedy, and does not merit the same favoritism, because an RBO does not restore employees to the state they enjoyed before management unlawfully effected a unilateral change. In the case sub judice, a true SQA remedy would consist of undoing the Briarpark relocation, which all parties agree is not feasible. The Authority implies that, although an RBO may return to employees those benefits they would have enjoyed had the agency initially bargained, one cаnnot assume that the RBO will have this effect; it is sheer speculation that the terms incorporated in the final contract will be those the parties would have adopted initially.
Thus, the Authority does not believe that a policy favoring make whole relief should translate into a preference for RBOs. We disagree. A make whole remedy compensates individual employees for losses suffered and divests management of the benefits of illegal action. A retroactive bargaining order aims to do the same. The difference is that an RBO requires the Authority, or a grievance committee, to estimate the make whole compensation due employees by means of the convenient, albeit somewhat speculative, conceit of assuming that the agreement the parties eventually negotiate approximates the agreement they would have forged in the first instance. The retroactive application of a contract ultimately negotiated by the parties relieves the Authority of the need to speculate on the precise details of a hypothetical сontract. Cf. NTEU v. FLRA, 732 F.2d 703, 706-07 (9th Cir. 1984) (affirming Authority decision declining to apply retroactive relief of its own design).
Recourse to this remedial device is necessary in this case because of the nature of the agency‘s infraction. This is not a case where the agency effected an isolated change in a working condition it was not
The key distinction is not between SQA remedies and RBOs as such, but between remedies that completely undo the institutional arrangements created by the unbargained-for actions of the agency and less intrusive make whole remedies. What in the case at bar is called an RBO, and what was called in SSA Council 220 an SQA (albeit a limited SQA), accomplish the same thing in the same way: both avoid institutional disruption while providing monetary make whole compensation to employees adversely affected by a refusal to bargain over a change in working conditions. The compensation is measured and achieved by the retroactive application of the bargaining order. Indeed, the Authority has adopted this convention in computing back pay awards under the
Here, the make whole remedy for refusal to bargain over parking charges is straightforward. If the union succeeds in negotiating a lower parking charge than employees currently pay, the employees will receive the difference in the amount paid for parking during the period of unilateral action and the amount set by contract. The measure of retroactive compensation for the IRS’ refusal to bargain over reservation of parking spaces for management is less clear. We leave to the Authority‘s determination the factual question of whether it would be possible for the union to show that employees suffered monetary loss—e.g., in the form of higher parking charges—as a result of removal of some parking spaces from the general pool in the event that those spaces are restored by a negotiated agreement. In any event, a grievance committee need not award, and cannot calculate, this component of a make whole award unless the union can demonstrate some causal nexus between higher employee charges and the reservation policy. However, the possibility that retroactive compensation for refusal to bargain over this matter may prove infeasible does not undermine the Authority‘s duty to award retroactive compensation where its measure is clear; nor does it vitiate the requirement that partial make whole relief be awarded to the fullest extent possible. See SSA Council 220, 840 F.2d at 929-30.
C.
The foregoing discussion demonstrates that retroactive bargaining orders compensate aggrieved employees and encourage management compliance in a way similar to true SQA remedies. The Authority nevertheless offers further reasons why an RBO should issue far less frequently than an SQA order that simply requires management to return to prior conditions. The Authority contends that retroactive bargaining orders run afoul of countervailing statutory policies by interfering with the functioning of the Federal Services Impasses Panel (FSIP or the Panel) and infringing the parties’ prerogative to determine the content of the collective bargaining agreement in accordance with
The Statute states that the FSIP may take whatever action is necessary and not inconsistent with this chapter to resolve [an] impasse.
It may be argued that this arrangement is a zero sum game for employees: the agency will simply offer less, knowing it is bound to a retroactive extension of the terms to which it agrees. It is possible that employees will sometimes be forced to give up at the bargaining table, or ordered to relinquish by the Panel, the equivalent of what they have gained by retroactivity, but we doubt that this is inevitable in every case. Bargaining rarely proceeds on a perfect economic mоdel of costless transaction, and we think it likely that the union will retain some of the advantage conferred by the privilege to retain or waive its right to retroactive application of bargaining terms. In any event, we decline to base our decision on the possibility that, in some cases, employees may fail to reap the full benefits of a retroactive award.
D.
Finally, the agency contends that an RBO will impose bargaining terms on the parties in derogation of
In addition, the legislative history shows that Congress contemplated that retroactivity would be routinely ordered as a remedy for straightforward refusal to bargain. The only enlightening piece of legislative history concerning this provision was furnished on the day following the passage of the Statute by Representative Ford, one of the House conferees on the bill. Representative Ford explained that his comments were intended to supplement the less than
Mr. Ford stated that
This statement, consistent with the statutory language, makes clear that the Authority‘s
Congress thus intended in
Finally, we note that Representative Ford also stated that Congress expected
III. CONCLUSION
As the statutory language indicates, and as the Statute‘s drafters intended, the Authority‘s remedial mission must take precedence where complete deference to the parties’ freedom to bargain or to the FSIP‘s flexibility to resolve impasses would undermine the Statute‘s goals. As this court has previously held, the goals of management deterrence and employee recompense are ill served, and the delicate balance of power between management and labor intolerably skewed, by treating the agency as if no violаtion had occurred. See SSA Council 220; AFGE v. FLRA. For these reasons, we think the Statute requires a retroactive bargaining order in this case. We therefore vacate the order of the Authority and remand for a redetermination not inconsistent with this opinion.
It is so ordered.
SILBERMAN, Circuit Judge, dissenting:
The majority has unfortunately misappropriated a policy choice that Congress delegated to the FLRA. The taking is so palpable that if private property rather than regulatory authority were at stake, just compensation would be owed. As the Supreme Court long ago observed with respect to judicial review of agency-ordered remedies: Because the relation of remedy to policy is peculiarly a matter for administrative competence, courts must not enter the allowable area of the Board‘s discretion and must guard against the danger of sliding unconsciously from the narrow confines of law into the more spacious domain of policy. Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 194 (1941).
So, recognizing this danger, we have said: Under the statute,1 the FLRA has broad discretion (as does the National Labor Relations Board . . . under the National Labor Relations Act . . .) in framing appropriate remedies for unfair labor practices. AFGE v. FLRA, 785 F.2d 333, 336 (D.C. Cir. 1986) (footnote omitted). Accordingly, our review of the FLRA‘s remedial determination is highly deferential, and we will uphold a remedial order of the FLRA ‘unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ AFGE SSA Council 220 v. FLRA, 840 F.2d 925, 928 (D.C. Cir. 1988) (quoting Professional Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 585 (D.C. Cir. 1982)). Notwith-
This case arises out of the relocation and consolidation of two groups of employees at separate sites to a single new location. The employees’ union and representatives of the IRS bargained about various issues regarding this move, and reached agreement on all but two proposals, which related to payment for parking costs and reserved parking spaces for bargaining unit employees. The IRS contended that payment for employee parking was nonnegotiable because otherwise it would be obligated to reimburse employees for increased commuting costs. This is a close case; it is not at all clear how much legal authority the IRS enjoys to agree to subsidize employee parking. Under the
All employees transferred will be guаranteed that they will suffer no financial loss due to increased commuting transportation cost i.e., higher parking fees, longer commutes, removal of ability to ride public transportation or participate in car/vanpools.
AFGE v. General Servs. Admin., 9 F.L.R.A. 825, 827 (1982) (emphasis added). The FLRA believed this proposal inconsistent with federal law (and thereby nonnegotiable, see
In response to the IRS’ additional contention that the proposal interfered with the agency‘s right to determine its own budget—which would also render the proposal nonnegotiable, see
In short, it was not obvious prior to the Authority‘s opinion that the petitioner‘s proposal was negotiable, nor for that matter, is it particularly clear after the opinion as the parties go forward to negotiate, precisely what are the boundaries of those negotiations. And certainly it is not evident, as the Authority itself notes, that any specific employee will receive what the majority assumes—monetary compensation.
This is not a case—and this point is crucial—where the employer unilaterally took away benefits that it was supplying the employees. The IRS employees transferred to the new location in Houston came from two different facilities. Those who had worked in the Federal Building had extensive bus service and a variety of daily, weekly, and monthly parking facilities available in the area, Opinion of Administrative Law Judge at 13, reprinted in Joint Appendix at 24 (presumably at their own expense), and those who had worked at the Westpark office found free parking (presumably on the street), but in neither situation had the government supplied parking of any kind. It is therefore hard for me to imagine a less appropriate case for retroactive relief—whatever it is called. Indeed, I dare say that if the Authority had fashioned exactly the remedy upon which the majority insists, it would have faced a powerful challenge by the IRS for acting in an arbitrary and capricious fashion.
The majority contends that an order requiring that a future agreement to be reached by the parties have retroactive effect (a retroactive bargaining order or RBO) is called for both by our prior cases and the statute‘s purpose. But we have never held that an RBO is an appropriate, let alone, routine remedy that the FLRA must apply. In AFGE v. FLRA, 785 F.2d 333 (D.C. Cir. 1986), we considered whether an order obliging the agency to restore the status quo ante after a unilateral change was required. There, the EEOC had unilaterally imposed a promotion freeze and refused to bargain with its union over its action. The union, as petitioner in this court, argued that the Authority was obliged to order that employees be placed in the position they would have enjoyed, but for the agency‘s action—to receive the promotions to which they were entitled absent the freeze. Although we affirmed the Authority, we warned that in the future, budgetary restraints would not suffice to excuse the Authority‘s refusal to require the status quo ante. Id. at 337-38. The status quo, the base line prior to the agency‘s action, could, in that earlier case, be determined without regard to future bargaining. Similarly, if, in the present case, the IRS had previously provided parking or compensation for parking and then revoked those benefits, that would be analogous to AFGE v. FLRA and an order restoring employees to their prior position would be consistent with the views we expressed. The majority‘s opinion is not.
Nor in AFGE SSA Council 220 v. FLRA did we do more than require that the Authority on remand consider whether individual employees adversely affected by an agency‘s unilateral introduction of employee evaluation plans be granted monetary status quo ante relief to make them whole. We directed the agency‘s attention to lоss es actually suffered by employees, 840 F.2d at 930,3 because of the new evaluation plans. In no comparable sense can it be said the majority‘s opinion requires that the IRS employees be compensated for actual losses, because the IRS has not taken away from the employees anything that it has previously provided.
The Ninth Circuit, moreover, has considered this question, and rejected the majority‘s approach. NTEU v. FLRA, 732 F.2d 703 (9th Cir. 1984). In that case, the United States Customs Service established three new shifts at Honolulu International Airport, but refused to negotiate with the employees’ union regarding starting and quitting times and lunch hours for the new tours of duty. Id. at 704. The FLRA determined that this refusal was an unfair labor practice, but refused to adopt the administrative law judge‘s order that the Customs Service be required to make employees whole for loss suffered due to the failure to bargain by means of what was in effect an RBO.4 Rebuffing the union‘s challenge to the FLRA‘s actions, the Ninth Circuit accepted the Authority‘s rationale that where there is no preexisting baseline that the Authority may order reinstated, or that may be used against which to meаsure damages, a status quo ante remedy was not required to effectuate the statute, and would furthermore be speculative. Id. at 706. The court dismissed the argument the majority embraces, that a retroactive order was necessary to effectuate the purposes of the statute, and instead correctly applied the basic proposition of administrative law: If an agency‘s construction of the statute that it is primarily responsible for implementing is reasonably defensible, we may not reject that construction simply because we prefer another view.
The majority‘s reliance on the statute‘s purpose is, in my judgment, even more tenuous than its case support. It is argued that Congress intended that the FLRA‘s role be similar to that of the NLRB. That is generally correct and we have often said it. See, e.g., Turgeon v. FLRA, 677 F.2d 937, 939-40 (D.C. Cir. 1982). But it also follows that Congress intended the relationship between the courts of appeals and the Authority to track that between the courts of appeals and the NLRB—and that implication the majority ignores.
In fact, the NLRB has never fashioned a remedy akin to the one the majority insists upon. See Yorke v. NLRB, 709 F.2d 1138, 1145-46 (7th Cir. 1983), cert. denied, 465 U.S. 1023 (1984). This court and the NLRB, in a jurisprudential pas de deux in the 1970s, see Tiidee Products, Inc., 174 N.L.R.B. 705 (1969); International Union of Elec., Radio and Machine Workers v. NLRB, 426 F.2d 1243 (D.C. Cir.), cert. denied, 400 U.S. 950 (1970); Ex-Cell-O Corporation, 185 N.L.R.B. 107 (1970), enforced as modified sub nom., International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. NLRB, 449 F.2d 1046 (D.C. Cir. 1971); International Union of Elec., Radio and Machine Workers v. NLRB, 502 F.2d 349 (D.C. Cir. 1974), cert. denied, 421 U.S. 991 (1975); International Union of Elec., Radio and Machine Workers v. NLRB, 502 F.2d 349, 361 (D.C. Cir. 1974) (Bazelon, J.) (statement on denial of rehearing en banc), expressed sharply different views as to the Board‘s authority to impose remedies approaching that which the majority calls for.5 Still, recognizing the limitations of judicial review of an agency choice of remedy, we never directed the NLRB to impose a remedy of our choice. And the Board, despite repeated requests to consider our view, has declined to adopt it. See, e.g., J.P. Stevens & Co., Inc. and Textile Workers Union of America, 205 N.L.R.B. 1032 (1973). Even under our reading of the
To be sure, the
It is not even apparent that the language of the section upon which the majority relies is susceptible to the majority‘s interpretation. On its face, it seems that retroactivity may attach only to an Authority or-
It will be recalled that the majority does even more than conclude that the statute authorizes the Authority to issue an RBO without at the same time specifying the content of the agreement; it directs the FLRA to issue such an order in this case because, according to the majority, the statute requires an RBO to be used routinely.7 In other words, the majority has stripped the FLRA of discretion to determine when to use this new remedy; it must do so always. Indeed the majority remands to the Authority with directions essentially to enter a retroactive bargaining order, rather than, as is proper, to reconsider in light of the concerns expressed by the court. The effect of this judgment is exactly the same as if the court had itself amended the Authority‘s order and then enforced that order as amended. The Supreme Court, however, has unanimously reversed this court for issuing just such a judgment, holding that:
when a reviewing court concludes that an agency invested with broad discretion to fashion remedies has apparently abused that discretion by omitting a remedy justified in the court‘s view by the factual circumstances, remand to the agency for reconsideration, and not enlargement of the agency order, is ordinarily the reviewing court‘s proper course.
NLRB v. Food Store Employees Union Local 347, 417 U.S. 1, 10 (1974). we do not have the Authority‘s view of this question of statutory interpretation.
The majority justifies overriding the plain language of the statute, which gives the Authority discretion to choose the remedy it considers appropriate to carry out the policies of this chapter,
Certainly the House Committee Report does not support the majority‘s position. The House version of section 7118 is very close to the statutory language finally adopted by both the Senate and the House; while the Conference Report does not refer to this section at all. As such, the House Report is clearly the most authoritative legislative history regarding this provision. See American Jewish Congress v. Kreps, 574 F.2d 624, 629 n. 36 (D.C. Cir. 1978); American Airlines, Inc. v. Civil Aeronautics Bd., 365 F.2d 939, 948-49 (D.C. Cir. 1966). It states that:
If the Authority (or its designee) deter-
As the majority notes, one member of Congress, Congressman Ford, wanted an entirely new concept of judicial review of agency decision making to apply to all FLRA opinions. In the passage partially quoted by the majority, Majority Op. at 301, he did not limit his exhortations to judicial review of the Authority‘s choice of remedies9 and later in his remarks he was quite explicit: Moreover, in establishing judicial review we expect that the courts will scrutinize the actions of the Authority with less of the deference given other administrative agencies.
Had the Congress accepted Congressman Ford‘s view, the majority‘s extraordinarily broad assertion of judicial power would at least be more understandable. But, the Congress did not do so, see
Which brings me to what in truth is the crux of the majority opinion. My colleagues simply believe that a retroactive bargaining order is more appropriate than the one the Authority fashioned, because the Authority‘s approach creates an insufficient disincentive to a government agency‘s incorrect refusal to bargain over a union‘s proposal. The difficulty with judicial policy-mаking is not only that it is unauthorized, however, it can also be inexpert. I am afraid that is true here. The majority does not consider fully, in the manner we would require an agency under the APA, what effect its interpretation of the statute will have on the statute‘s administration. Congress quite clearly contemplated that negotiability (whether a union‘s proposal is a proper subject of bargaining) would be a good deal more difficult to determine than is true in the private sector under the NLRA. There are a host of reasons why a government department may legitimately refuse to bargain. For example, the proposal may conflict with governmentwide personnel regulations, see AFGE Local 2782 v. FLRA, 803 F.2d 737 (D.C. Cir. 1986), or it may concern any of a
In order to provide a speedy mechanism to resolve the inevitable disputes that would arise because of this thicket of complexity, Congress provided that a union could directly appeal an agency‘s determination that a proposal was not negotiable.
Long before the Supreme Court heightened the deference courts of appeals are obliged to afford administrative agencies’ interpretations of their own statutes in the landmark Chevron case, it was black letter administrative law that we were to defer to an agency‘s choice of remedy. In that regard, it seems utterly inconceivable to me that it can fairly be said that the FLRA has selected an order that patent[ly] attempts to achieve ends other than those [that] effectuate the policies of the Act. AFGE SSA Council 220, 840 F.2d at 928 (quoting Professional Air Traffic Controllers Org. v. FLRA, 685 F.2d at 585) (emphasis added). But, not only does the majority refuse to defer to the agency‘s choice of remedies, it refuses to defer to the agency‘s interpretation of its statute and refuses to remand for reconsideration in light of its concerns. As such, the majority opinion is a triple threat to settled principles of administrative law. Although we have the raw power, we have not the right to direct the agency to adopt a different remedy in a whole class of cases. Our interference with the Authority‘s administration of the Act will have incalculable consequences on the behavior of future bargaining, but of one result I am quite certain: this circuit, which is the only one to adopt this novel interpretation of the Act, will, unless the majority opinion is superseded, certainly attract all petitions for review filed by unions seeking a retroactive bargaining order. I respectfully dissent.
Before WALD, Chief Judge; ROBINSON, MIKVA, EDWARDS, RUTH B. GINSBURG, STARR, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges.
ORDER
Respondent‘s Suggestion for Rehearing En Banc has been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service voted in favor of the suggestion. Upon consideration of the forgoing, it is
Ordered, by the Court en banc, that this case will be considered and decided by the Court sitting en banc.
A future order will govern further proceedings.
Notes
Section 7105.
(g) . . . the Authority may—
. . .
(3) . . . require an agency or a labor organization to cease and desist from violations of this chapter and require it to take any remedial action it considers appropriate to carry out the policies of this chapter.
Section 7118.
(a)(7) If the Authority . . . determines . . . that the agency or labor organization named . . . has engaged . . . in an unfair labor practice, [it] . . . shall issue . . . an order—
(A) to cease and desist from any such unfair labor practice in which the agency or labor organization is engaged;
(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;
(C) requiring reinstatement of an employee with backpay in accordance with section 5596 of this title; and
(D) including any combination of the actions described in subparagraphs (A) through (C) of this paragraph or such other action as will carry out the purpose of this chapter.
Just a short time ago, this court in AFGE SSA Council 220 v. FLRA endorsed the Authority‘s analytical framework for determining the suitability and extent of retroactive relief for failure to bargain over impact and implementation procedures. See 840 F.2d at 929. This framework involve[s] consideration of (1) whether and when notice [of the underlying event] was given to the union; (2) whether and when the union requested bargaining; (3) the willfulness of the agency conduct; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) to what extent a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency‘s operations. 840 F.2d at 928 (citing Federal Correctional Institution and AFGE Local 2052, 8 F.L.R.A. 604 (1982)). See also AFGE v. FLRA, 785 F.2d 333, 337 (D.C. Cir. 1986) (noting that Authority may consider whether agency‘s position was taken in good faith in fashioning relief). Surely the majority does not now intend to characterize these considerations as irrelevant to a decision to award retroactive relief, yet the majority implicitly broadcasts this very message by declaring its own remedial determination obligatory as a matter of law.
Even if the majority were correct in erecting a statutory presumption favoring RBOs, it should remand for future consideration, much as we did in AFGE SSA Council 220. See 840 F.2d at 929-31. For were the court actually authorized to restructure the variables in the relief equation, it would remain the Authority‘s province to determine the answer.
[Congress harbored the] expectation that the courts will oversee the work of the Authority in this area (as well as others) in order to insure that the Authority vigorously enforces the purpose and provisions of title VII by adopting remedies sufficiently strong and suitable to make real the promise of the title and the obligation of its provisions.