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16:0479(71)CA
The decision of the Authority follows:
16 FLRA No. 71
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C., AND ITS CHICAGO
AIRWAYS FACILITIES SECTOR
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, AFL-CIO
Charging Party
Case No. 5-CA-30431
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record, including the stipulation of
facts and the contentions of the parties, the Authority finds:
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the
Statute) by refusing to bargain with the Professional Airways Systems
Specialists (PASS) over the substance, impact and implementation of a
change in hours of work at the Midway Sector Field Unit (Facility).
Prior to December 31, 1981, the employees of the Facility, then known
as the Midway Airways Facility Sector, which was and continues to be a
component of the Chicago Airways Facilities Sector, were part of a unit
represented by the Federal Aviation Science and Technological
Association (FASTA). On that date, PASS was certified as the exclusive
representative of a unit including those employees formerly represented
by FASTA and, on April 14, 1983, was certified in a larger consolidated
unit of the Respondent's employees. Prior to PASS' initial
certification, the Respondent and FASTA had negotiated a collective
bargaining agreement which became effective in 1977 for a two-year
period and which was automatically renewed thereafter following the
agreement's expiration date. Of particular significance here is Article
54, Section 2 of the FASTA agreement relative to changes in working
conditions which provides as follows:
The parties agree to consult prior to implementing changes in
personnel policies, practices and matters affecting working
conditions that are within the scope of the Employer's authority
and that are not specifically covered by this agreement.
In July 1983, the Respondent notified PASS' local president at the
Facility of its intention to change the starting and quitting times of
the existing shift for the six Electronic Technicians at the Facility so
that all six employees would be working a 7:30 a.m. to 4:00 p.m. shift,
Monday through Friday. Up until that point, three employees had worked
those particular hours, while the other three employees had worked from
8:00 a.m. to 4:30 p.m., Monday through Friday. /1/ The local president
was invited to submit views or recommendations with respect to the
change. On August 2, the local president submitted a request to bargain
over the change. The Respondent refused to bargain and instead
indicated its willingness to consider any comments regarding the impact
and implementation of the change. The new work hours for the three
affected employees were implemented on August 22, 1983. The parties
stipulated that the change in work hours did not establish an additional
shift and that the numbers, types and grades of employees and the number
of positions remained the same as before the change.
The Respondent argues that its bargaining obligation over the change
in work hours was limited to consultation by virtue of Article 54,
Section 2 of the FASTA agreement which, in its view, constituted a clear
and unequivocal waiver of PASS' right to bargain over the matter.
In Federal Aviation Administration, Northwest Mountain Region,
Seattle, Washington and Federal Aviation Administration, Washington,
D.C., 14 FLRA No. 89 (1984), a case involving the Federal Aviation
Administration, PASS and the same FASTA agreement as involved herein,
the Authority determined that the waiver of bargaining rights contained
in Article 54, Section 2 constituted a permissive subject of bargaining
which was binding during the life of the agreement but was terminable by
either party once the agreement expired. In that case, the Authority
found that management could not insist upon the continuation of the
waiver provision contained in that Article when PASS indicated it no
longer wished to be bound by such a provision, but instead sought to
exercise its bargaining rights. The same conclusion must be reached in
the instant case which involves the identical provision of the expired
FASTA agreement and the identical assertion by PASS of its right to
negotiate rather than consult about the change in hours of work.
Accordingly, and for the reasons more fully set forth in Federal
Aviation Administration, Northwest Mountain Region, the Authority finds
that the Respondent was no longer free to insist upon the practice
contained in Article 54, Section 2 of the expired FASTA agreement so as
to preclude bargaining over the change in the starting and quitting
times. See also Department of Transportation, Federal Aviation
Administration, Los Angeles, California, 15 FLRA No. 21 (1984).
With respect to the scope of the Respondent's obligation to bargain
in this matter, the Authority has previously determined that the
decision to change starting and quitting times is subject to the duty to
bargain unless it can be demonstrated that such a change explicitly,
directly or integrally relates to so as to be determinative of the
"numbers, types, and grades of employees or positions assigned to any
organizational subdivision, work project, or tour of duty" within the
meaning of section 7106(b)(1) of the Statute, /2/ and therefore
negotiable only at the election of the agency. /3/ In the instant case,
where the change in work hours did not establish an additional shift and
there have been no changes in the numbers, types and grades of employees
or positions, the Authority finds that the Respondent was obligated to
bargain with PASS concerning its decision to change the starting and
quitting times. As the Respondent failed to do so, the Authority
concludes that it violated section 7116(a)(1) and (5) of the Statute.
The General Counsel has requested that the Authority issue a status
quo ante order. In view of the Respondent's failure to fulfill its
statutory bargaining obligation concerning the decision to change the
work hours of unit employees, the Authority finds that an order
directing reestablishment of the 8:00 a.m. to 4:30 p.m. hours of work
for the three Electronic Technicians will effectuate the purposes and
policies of the Statute. See Internal Revenue Service, Los Angeles
District, supra, n. 3.
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 Department of Transportation, Federal
Aviation Administration, Washington, D.C. and its Chicago Airways
Facilities Sector shall:
1. Cease and desist from:
(a) Instituting any change in the work hours of employees without
affording the Professional Airways Systems Specialists, AFL-CIO, the
exclusive bargaining representative of its employees, the opportunity to
negotiate with respect to such change.
(b) 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) Reestablish the 8:00 a.m. to 4:30 p.m. starting and quitting time
for three Electronic Technicians at the Midway Sector Field Unit and
afford the Professional Airways Systems Specialists, AFL-CIO, the
opportunity to negotiate with respect to any proposed changes thereto.
(b) Post at its facilities at the Midway Sector Field Unit copies of
the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be signed
by the Manager of the Chicago Airways Facilities Sector, or his
designee, and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards and
other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director, Region
V, in writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
Issued, Washington, D.C., November 15, 1984.
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
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 EMPLOYEES THAT:
WE WILL NOT institute any change in the work hours of our employees
without affording the Professional Airways Systems Specialists, AFL-CIO,
the exclusive bargaining representative of our employees, the
opportunity to negotiate with respect to such changes.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL reestablish the 8:00 a.m. to 4:30 p.m. starting and quitting
time for three Electronic Technicians at the Midway Sector Field Unit
and afford the Professional Airways Systems Specialists, AFL-CIO, the
opportunity to negotiate with respect to any proposed changes thereto.
(Activity)
Dated: By: (Signature) (Title)
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 its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
Suite 1359-A, 175 W. Jackson Boulevard, Chicago, Illinois 60604, and
whose telephone number is: (312) 353-6306.
--------------- FOOTNOTES$ ---------------
/1/ The Authority notes that the FASTA agreement did not specifically
set forth the hours of work for such employees.
/2/ Section 7106(b)(1) provides:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work(.)
/3/ See e.g., Internal Revenue Service, Los Angeles District, 10 FLRA
653 (1982); U.S. Customs Service, Region V, New Orleans, Louisiana, 9
FLRA 116 (1982); and National Treasury Employees Union, Chapter 66 and
Internal Revenue Service, Kansas City Service Center, 1 FLRA 926 (1979).