THE APPROXIMATE REMEDY
Too many arbitration cases have come before the FLRA where the union failed to ask for a tough enough remedy. Often, it appears the union concluded that it would be too tough to prove precisely what would have been done if the violation had not happened–or what would have happened “but for” the violation. Consequently, the union merely asks for a cease and desist order and a posting acknowledging that the agency violated the law rather than the far more powerful back pay and status quo ante orders. However, FLRA does not require that arbitrators impose a remedy that duplicates exactly what would have happened but for the violation. It allows them to impose remedies that only approximate the same conditions as if the violation had not occurred. For example, . . . .
when an Agency moved employees from one building in Chicago to another before completing bargaining the arbitrator realized that he could not order the Agency to replicate the prior work space down to the location of the office equipment, walls or windows. So, he fashioned a remedy that “approximates the accommodation that had been worked out in practice through the [Califano] policy at the former locations and restores the parties to conditions which approximate the conditions under which they would have approached the negotiations had the [Agency] not breached the contract or committed an unfair labor practice.” The Authority rejected the Agency’s effort to overturn the award via exceptions. It concluded “that the Arbitrator’s remedy effectuates the policies of the Statute by restoring, as far as possible, the status that would have obtained but for the Agency’s violation and by recreating the conditions and relationships that would have existed had there been no unfair labor practice.” See NTEU, 45 FLRA 737 (1992)
Nor need an arbitrator achieve absolute perfection when ordering back pay. In AFGE, 43 FLRA 608 (1991) the Authority endorsed an order requiring the agency to use existing records to calculate an “equitable distribution of back pay.” It noted that any disputes over precisely who was to receive money or how much could be address through compliance proceedings. That goes hand-in-hand with the Authority’s decision that there is no requirement in the Act or its implementing regulations for the arbitrator to identify the specific employees entitled to backpay as a result of the unwarranted action. See MTC, 39 FLRA 1456 (1991) In NATCA, 55 FLRA 293 (1999) it upheld an arbitrator’s monetary order where there was, “. . . no doubt, even in the absence of an actual ‘to the penny’ amount, of what the cost of installation would be. Consequently, the terms of the offer are sufficiently clear to enable the Respondent to comply.”
An alternative to an arbitrator order that the parties search the records to develop their best estimate of who should receive what money or other remedy is an arbitrator’s right to impose a retroactive bargaining order. In NAGE, 57 FLRA 663 (2002) the ALJ ordered the parties to bargain over the agency’s proposal to change its performance award system, retroactively apply the results to the time of the unilateral change and then make employees whole for any loss of award compensation. The Authority approved bargaining over back pay entitlements because, “Such an order “approximate[s] the situation that would have existed had the Respondent fulfilled its statutory [bargaining] obligations.”
The bottom line is that whether appearing before an ALJ or arbitrator unions should ask for all reasonable remedies even if one or more cannot be reconstructed with surgical precision. FLRA accepts approximations, bargaining for agreement on what would most closely reflect what would have been done but for the violation, and post-hearing compliance procedures structured around the forced production of agency records to clarify everyone’s equitable share.