[ v11 p144 ]
11:0144(35)CO
The decision of the Authority follows:
11 FLRA No. 35
ATLANTA CENTER PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION, AFL-CIO, LOCAL 101
Respondent
and
U.S. DEPARTMENT OF TRANSPORTATION,
FEDERAL AVIATION ADMINISTRATION,
ATLANTA AIR ROUTE TRAFFIC CONTROL CENTER
Charging Party
Case No. 4-CO-15
ORDER DISMISSING COMPLAINT
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint and recommending that it
be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the Respondent and the General Counsel filed
exceptions to the Judge's Decision.
After the Judge rendered his Decision in this case, the Authority
issued its Decision and Order in Professional Air Traffic Controllers
Organization, Affiliated with MEBA, AFL-CIO, 7 FLRA No. 10 (1981),
affirmed sub nom., Professional Air Traffic Controllers Organization v.
Federal Labor Relations Authority, 685 F.2d 547 (D.C. Cir. 1983),
revoking the exclusive recognition status of the Respondent herein,
PATCO, for having engaged in strike activity prohibited by section
7116(b)(7) of the Federal Service Labor-Management Relations Statute
(the Statute), and finding that PATCO is no longer a labor organization
within the meaning of the Statute. The Authority concludes herein that,
due to Respondent's loss of status as an exclusive representative and as
a labor organization under the Statute, any decision rendered herein
cannot have any practical legal effect. Accordingly, the Authority
shall order that the instant complaint be dismissed as moot.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 4-CO-15 be, and
it hereby is, dismissed.
Issued, Washington, D.C., January 28, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
David E. Siegel
For the Respondent
Barbara S. Liggett, Esquire
James R. Puhger, Esquire
For the General Counsel
Alan M. Mendel
For the Charging Party
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This case arose pursuant to the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq., (the Statute), as a result of
an unfair labor practice complaint filed by the Regional Director,
Region 4, Federal Labor Relations Authority, Atlanta, Georgia, against
the Atlanta Center Professional Air Traffic Controllers Organization,
Local 101, Professional Air Traffic Controllers Organization, affiliated
with Marine Engineers Beneficial Association, PATCO-MEBA, AFL-CIO (Union
or Respondent), based on a charge filed by the U.S. Department of
Transportation, Federal Aviation Administration, Atlanta Air Route
Traffic Control Center (Charging Party or Agency). The Complaint
alleged, in substance, that Respondent threatened an employee member
with reprisal for having worked call-in overtime and, thereby,
interfered with, restrained, or coerced the employees of the Agency in
the exercise of the right, guaranteed by U.S.C. 7102, to refrain from
assisting a labor organization, in violation of 5 U.S.C. 7116(b)(1).
The Complaint further alleged that a threat to impose a fine in an
attempt to coerce an employee to refrain from working overtime, and the
threat to punish an employee for accepting such work, was for the
purpose of impeding that employee member's work performance,
productivity, or discharge of duties as an employee, and was therefore
violative of 5 U.S.C. 7116(b)(3). Respondent's Answer denied any
violation of the Statute, but admitted that Respondent adopted a policy
of having its members decline to work call-in overtime, which, it
alleged, was a type of overtime that was optional with the employee and
did not involve an order to perform work. Respondent further admitted
that it informed an employee that because of his violation of the
policy, charges were being preferred against him to Respondent's local
executive board.
A hearing was held in this matter in Atlanta, Georgia. /1/ The
Respondent, General Counsel, and Charging Party were represented and
afforded full opportunity to be heard, adduce relevant evidence, examine
and cross-examine witnesses, and file post-hearing briefs.
Based on the entire record herein, including my observation of the
witnesses and their demeanor, the exhibits and other relevant evidence
adduced at the hearing, and the briefs, I make the following findings of
fact, conclusions of law, and recommendations.
Findings of Fact
1. Respondent is the exclusive representative of an appropriate unit
of employees, including air traffic controllers at the Agency. Air
traffic controllers at the Agency are assigned to six different areas:
North, South, East, West, Northeast, and Southwest. Within each area,
air traffic controllers are further subdivided into teams. (Tr. 13, 14,
26).
2. During the summer of 1979, air traffic controllers at the Agency,
and especially those controllers assigned to the Northeast area, voiced
complaints to the Union concerning the level of staffing. Controllers
complained that the watch schedules posted for June, July, and August of
1979 showed an insufficient number of controllers being scheduled to
work; that management, instead of scheduling overtime in advance, would
wait until the day it was needed and then use call-in overtime in an
effort to fill controller positions; that since call-in overtime was
voluntary, insufficient positions were being filled; that this required
controllers to double up on position assignments and made it difficult
for them to take coffee, lunch, and relief breaks; that it would be
easier on the controllers if management scheduled the overtime in
advance with the option for employees assigned overtime to secure
suitable replacements, if necessary. (Tr. 15-16, 21-22, 41-46).
3. The parties' collective bargaining agreement provided for making
overtime available on an equitable basis and for its assignment, in
part, as follows:
ARTICLE 40 - OVERTIME
. . .
Section 2. Whenever overtime work is to be performed it shall
be made available to qualified employees on an equitable basis.
Section 3. An employee assigned to work overtime may secure a
replacement and, provided the replacement is acceptable to the
supervisor, will be relieved of the assignment. If the employee
is unable to secure a replacement acceptable to the supervisor,
the employee will work the overtime. (General Counsel's Ex. 4, p.
57).
4. Rather than assigning overtime pursuant to the collective
bargaining agreement, the practice of the Agency was to have its
supervisors determine the minimum staffing level needed for each shift,
based primarily on the amount of traffic and the skill levels of
individual controllers, and if that number was greater than the number
of controllers scheduled for a shift, to use call-in overtime to secure
the necessary personnel. Controllers were called in turn, beginning
with the individual who had worked the last number of hours of overtime.
Controllers were free to accept or decline such call-in overtime
provided, in part, that, "A specialist declining to work overtime is
considered on an equal status with a specialist working overtime."
(General Counsel's Ex. 5).
5. Until mid-July 1979 the Union met with Agency management on a
weekly, and sometimes daily, basis to discuss staffing and other
problems. The Union requested that management schedule overtime.
Management replied that it recognized the problem, but would not
schedule overtime. (Respondent's Ex. 3).
6. On July 18, 1979, the executive board of the Union determined
that "(s)taffing has created an adverse condition in the facility and
call-in overtime is a poor substitute for the condition." The executive
board voted to adopt a policy "to promote the reduction of participation
in call-in overtime, until management schedules overtime within the
formation of the basic watch schedule or increases the facility staffing
with additional controllers from any source available." (General
Counsel's Ex. 3(e)). Controllers were not to voluntarily accept call-in
overtime; however, if controllers were ordered to work overtime, they
were to do so, and no insubordination by a controller ordered to work
overtime would be condoned. (Tr. 20; 47).
7. On July 26, 1979, Charles E. McGregor, a controller in the
Northeast area and a Union member, was informed by Kerry D. Floyd, the
Union representative for Team 3 in the Northeast area, of the Union's
policy on call-in overtime and agreed to participate. (General
Counsel's Ex. 3(c); Tr. 16, 20, 22). Subsequently, however, on August
8, 1979 McGregor responded to a request by a supervisor to work call-in
overtime and, in fact, worked a full eight hour evening shift as a
personal favor to the supervisor. (Tr. 16; 48).
8. On August 13, 1979, at a meeting between the Agency and
Respondent, the Agency's deputy chief, Walter E. Denley, brought up the
subject of call-in overtime and the problem that supervisors were having
getting controllers to accept call-in overtime. Union president Timothy
D. Benincosa confirmed that the controllers had agreed not to accept
call-in overtime, particularly in the Northeast area. Denley responded
by saying that, in that case, the Agency could not continue its past
practice of calling and offering overtime to each person on the overtime
list and would revert back to the contract provision and assign the
overtime. (Tr. 27-30).
9. The next day, August 14, 1979, as a result of the Agency's
assignment of overtime to controllers, the Union requested another
meeting with the Agency to discuss overtime staffing. Agency and Union
representatives subsequently met, discussed the staffing in the
Northeast area as reflected on August and September schedules, and
reached an understanding that the Northeast area would be staffed with
an acceptable number of controllers to cover the necessary vacancies.
As a result, the Union terminated its policy on August 15, 1979 and
announced to its members that call-in overtime would again be accepted.
(Tr. 30-31; 51-52).
10. On August 20, 1979, the Union's Northeast area representative,
Henry R. Elliott, charged McGregor with a violation of Article IX,
Section 1, Part (a) of the Union's Constitution /2/ by working overtime
on August 8, 1979 without justifiable cause. (General Counsel's Ex.
3(a); Tr. 17, 48-49). The Union's executive board, following a
hearing, determined that McGregor had violated the Article and would be
fined the amount of overtime pay he had received for working the
overtime shift. (Tr. 19; 50-51).
11. On September 3, 1979, McGregor submitted a completed Standard
Form 1188 (General Counsel's Ex. 2) to the Agency, revoking his
authorization for deduction of dues and remittance to the Union. The
revocation was not effective until March 1980. (Tr. 13; 19). Sometime
after submitting his Standard Form 1188, McGregor was advised by the
Union that the fine would not be enforced since he was no longer a Union
member. (Tr. 19).
12. On October 18, 1979, McGregor's name was mentioned in the course
of a meeting between The Agency and the Union. The Union's vice
president, Don Kovacs, stated that McGregor was "the scab who accepted
overtime. He dropped out of the Union when we threatened to sanction
him." (Tr. 33; 39).
Discussion, Conclusions, and Recommendations
Section 7102 of the Statute guarantees to each employee of the
Federal Government the right, freely and without fear of penalty or
reprisal, to form, join, and assist a labor organization, or to refrain
from any such activity, and to be protected in the exercise of such
right. A labor organization's interference with these rights is
violative of section 7116(b)(1).
The General Counsel alleges that the Union violated Mr. McGregor's
right to refrain from assisting a labor organization when it threatened
to fine him for having worked call-in overtime contrary to Union policy.
The Union denies any violation; asserts that Union member McGregor was
properly subject to Union discipline for violating a Union rule
requiring members to first decline to work voluntary call-in overtime;
that the rule was adopted to protect the integrity of the bargaining
unit, prevent Union members from being on the side of the employer in a
time of difficulty or tension, and avoid divided loyalty; and that
McGregor was free to leave the Union and escape the rule.
Section 7116(c) of the Statute, which makes it an unfair labor
practice for an exclusive representative to deny membership except for
failure to meet reasonable occupational standards or to tender dues
uniformly required, also states:
This subsection does not preclude any labor organization from
enforcing discipline in accordance with procedures under its
constitution or bylaws to the extent consistent with the
provisions of this chapter.
This subsection permits a union to enforce discipline as an internal
union matter where its legitimate internal union affairs are concerned.
American Federal of Government Employees, AFL-CIO, Local 2000 and Wilder
M. Nixon, 6-CO-17, decision of Judge William B. Devaney (August 13,
1980) (and cases cited therein). Such discipline must be "consistent
with the provisions of this chapter" and not impair some statutory labor
policy. Cf. Scofield v. NLRB, 394 U.S. 423 (1969).
Congress found, as stated in section 7101(a) of the Statute, that
"Labor organizations and collective bargaining in the civil service are
in the public interest." It is apparent from the specific language of
sections 7114(a)(1), 7114(b)(3), and 7103(a)(12) of the Statute that a
labor organization which is an exclusive representative of the employees
in an appropriate unit is entitled to negotiate collective bargaining
agreements for employees it represents and that an agency and exclusive
representative have a mutual obligation to negotiate in good faith in an
effort to reach agreement with respect to conditions of employment
affecting employees in an appropriate unit. The obligation to negotiate
would be rendered meaningless if a party were able to unilaterally
change established conditions of employment without first affording the
other party notice of the proposed changes and an opportunity to
negotiate. Department of the Air Force, Scott Air Force Base, Illinois
and National Association of Government Employees, Local R7-23, 5 FLRA
No. 2 (1981).
The record reflects that, rather than using scheduled overtime under
the negotiated agreement, it was an established past practice for the
Agency to use call-in overtime to supplement the staffing of its various
shifts and for personnel called to make an individual personal decision
whether or not to accept or decline such call-in overtime. The record
further reflects that the Union, because of employee complaints, became
dissatisfied with the level of staffing of the various shifts and felt
that management, in order to properly deal with the adverse working
conditions, should either schedule overtime, presumably pursuant to the
negotiated agreement, or increase staffing. However, instead of
continuing negotiations pursuant to the statutory scheme, /3/ the Union
established a ban on its members acceptance of call-in overtime. This
change in past practice, instituted without notice to the Agency, or
affording it an opportunity to negotiate constituted a unilateral change
in established terms and conditions of employment and a breach of the
Union's bargaining obligation under the Statute. /4/ Thus, the Union
rule was not consistent with the provisions of the Statute.
The General Counsel alleges that the Union's rule requiring members
to refrain from accepting voluntary call-in overtime was not a protected
activity, because it was inconsistent with the statutory policy,
embodied in section 7116(b)(3) of the Statute, /5/ against hindering and
impeding a member's work performance, productivity, or discharge of
duties. I agree. If a member cannot accept voluntary work
opportunities, his work performance or productivity in this respect
would be completely blocked. The Statute is designed to prevent this.
The Statute makes no distinction as to the status of the employee, and
it makes no difference whether the work performance and productivity so
hindered or impeded would occur in the course of voluntary overtime, or
as part of the member's regular tour of duty.
Inasmuch as the Union's ban on the voluntary acceptance of overtime
was inconsistent with the provisions of the Statute, its attempt to
enforce the ban against Mr. McGregor cannot be deemed an enforcement of
discipline for violation of a lawful union rule dealing with purely
internal union matters under section 7116(c). Accordingly, it was
violative of section 7116(a)(1) as Respondent Union interfered with Mr.
McGregor's right to refrain from assisting a labor organization.
Alleged 7116(b)(3) violation.
The General Counsel alleges that the Union violated section
7116(b)(3) of the Statute by attempting to fine Mr. McGregor for working
call-in overtime contrary to Union policy.
The Respondent Union contends that its policy was directed only
against voluntary acceptance of call-in overtime on the part of its
members; that members could refuse such overtime under the established
procedure; that management was free to mandatorily assign overtime;
that the Union never suggested that members should refuse work if
ordered; and that the Union's attempt to fine Mr. McGregor for not
first declining to work voluntary call-in overtime in no way hindered or
impeded his work performance, productivity, or the discharge of his
duties as an employee.
The record reflects that the threat to fine McGregor came after his
acceptance of the offer to work voluntary call-in overtime and his
actual performance of that work. Whether an attempt to fine him would
have been made if he had merely accepted the offer to work voluntary
call-in overtime, without actually working it, for whatever reason, we
do not know. It is clear, though, that the fine in question was closely
connected with his actual performance of the work. It was specifically
charged that McGregor "without justifiable cause performed overtime duty
on the evening watch on August 8, 1979." The record indicates that
"without justifiable cause" meant that he was not actually ordered, or
mandatorily assigned to perform the overtime. However, as noted, the
fact that the work was performed voluntarily does not matter. By basing
the threat to fine him on his performance of overtime duty, Respondent
Union violated section 7116(b)(3). Such threat constituted an attempt
to coerce a member of a labor organization as punishment or reprisal for
the member's work performance or productivity as an employee or the
discharge of the member's duties as an employee. Section 7116(b)(3) of
the Statute is intended to protect union members from any act by a labor
organization which in any way interferes with the member's work
performance, productivity, or the discharge of the member's duties as an
employee. Cf. Professional Air Traffic Controllers Organization, MEBA,
AFL-CIO, A/SLMR No. 878, 6 FLRC 107 (1978).
Having found and concluded that Respondent violated sections
7116(b)(1) and (3) of the Statute, it is recommended that the Authority
issue the following Order:
Order
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Authority hereby orders that the Atlanta Center Professional Air Traffic
Controllers Organization, Local 101, Professional Air Traffic
Controllers Organization, Affiliated with Marine Engineers Beneficial
Association, (PATCO-MEBA), AFL-CIO, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing Charles E.
McGregor, or any other employee in the exercise of the right
assured by the Statute to refrain from assisting a labor
organization.
(b) Coercing, disciplining, fining, or attempting to coerce
Charles E. McGregor, or any other member of the labor
organization, as punishment, reprisal, or for the purpose of
hindering or impeding the member's work performance or
productivity as an employee or the discharge of the member duties
as an employee.
(c) In any like or related manner, interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Rescind the determination that Charles E. McGregor violated
Article IX, Section 1(a) of its Constitution by working overtime
on August 8, 1979, cancel all fines and penalties noted in its
records in connection therewith, and advise Charles E. McGregor in
writing of such action.
(b) Post at its respective business offices and in normal
meeting places, including all places where notices to members are
customarily posed, copies of the attached Notice marked "Appendix"
on forms to be furnished by the Authority. Upon receipt of such
forms, they shall be signed by an appropriate representative and
shall be posted for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken to insure
that such Notices are not altered, defaced, or covered by any
other material.
(c) Submit signed copies of said Notice to employers for
posting in conspicuous places where unit employees are located,
where they shall be maintained for a period of 60 consecutive days
from the date of posting.
(d) Pursuant to 5 C.F.R. 2423.30 notify the Federal Labor
Relations Authority, in writing, withini30 days from the date of
this order, as to what steps have been taken to comply herewith.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: March 13, 1981
Washington, D.C.
APPENDIX
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY and in order to effectuate the policies of CHAPTER 71 OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
We Hereby Notify Our Members That:
WE WILL NOT interfere with, restrain, or coerce Charles E. McGregor,
or any other employee in the exercise of the right assured by the
Statute to refrain from assisting a labor organization.
WE WILL NOT coerce, discipline, fine, or attempt to coerce Charles E.
McGregor, or any other member of the labor organization, as punishment,
reprisal, or for the purpose of hindering or impeding the member's work
performance or productivity as an employee or the discharge of the
member's duties as an employee.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL rescind our determination that Charles E. McGregor violated
Article IX, Section 1(a) of our Constitution by working overtime on
August 8, 1979 and will cancel all fines and penalties noted in our
records in connection therewith.
(Labor Organization)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director, Federal Labor Relations Authority, Region 4, 1776
Peachtree Street, N.W., Suite 501, North Wing, Atlanta, Georgia 30309.
Telephone (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ Page 57, line 18 of the transcript is hereby corrected to read,
"We would work it."
/2/ Article IX, Section 1, Part (a) of the Union's Constitution
provides:
ARTICLE IX - Sanction of Members
Section 1. Any member of the Local may be sanctioned by
suspension of membership or expulsion for misconduct as follows:
(a) Refusal or failure without justifiable cause to comply with
or abide by the provisions of the National Constitution or this
Constitution; refusal or failure without justifiable cause to
comply with or abide by a valid decision of any National Officer,
the National Executive Board, the National Convention, or of this
Local.
/3/ It is noted that the numbers, types, and grades of employees or
positions assigned to any organization subdivision, work project, or
tour of duty are negotiable, at the election of the agency, pursuant to
section 7116(b)(1) of the Statute. Procedures which management will
observe and appropriate arrangements for employees adversely affected by
the exercise of management rights are also negotiable under section
7106(b)(2) and (3).
/4/ The General Counsel did not allege, or urge, a violation of
section 7116(b)(5). However, the examination of the record and
discussion is deemed necessary to properly consider the alleged
violations of section 7116(a)(1) and the Union's defense that it was
acting pursuant to section 7116(c). Cf. NLRB v. Communications Workers,
Local 1170, 82 LRRM 2101 (2nd Cir., 1972).
/5/ Section 7116(b)(3) provides that it shall be an unfair labor
practice for a labor organization:
(3) to coerce, discipline, fine, or attempt to coerce a member
of the labor organization as punishment, reprisal, or for the
purpose of hindering or impeding the member's work
performance
or productivity as an employee or the discharge of the member's
duties as an employee(.)