[ v19 p436 ]
19:0436(59)CA
The decision of the Authority follows:
19 FLRA No. 59
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
Charging Party
Case No. 5-CA-30366
DECISION AND ORDER
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, the General Counsel, and the
Charging Party filed exceptions, and supporting briefs, relating only to
the Judge's recommended Order. The Respondent filed an opposition to
the General Counsel's exceptions, and the Charging Party filed an
opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings and conclusions, and his recommended Order as modified
herein.
After finding, based on Authority precedent, that the Union did not
waive its right to bargain over the subject matter herein, the Judge
concluded that the Respondent violated section 7116(a)(1) and (5) of the
Statute by its failure and refusal to negotiate with the Union
concerning appropriate arrangements for employees adversely affected by
the reorganization and consolidation of the Airways Facilities Sectors
in the Great Lakes Region, effective June 30, 1983, and on the
procedures to be observed in effectuating such reorganization. In so
concluding, the Judge noted particularly that as a result of the
reorganization of the Great Lakes Region, the Respondent closed 5 of its
13 Airways Facilities Sector Field Offices which resulted in at least 47
unit employees being reassigned to different jobs; 7 relocating outside
their commuting areas; 3 resigning; 4 retiring rather than relocate;
others accepting downgrades and transfers; and the remaining employees
receiving reassignments within their commuting areas. The Judge also
noted that an unknown number of employees' work schedules or shifts were
changed; that some were required to assume new or additional duties
including more travel covering larger geographic areas; and 12 were
required to undergo additional training and acquire new certifications
to perform their duties.
Relying on the above factors, and noting also the absence of
exceptions to the Judge's conclusions in this regard, the Authority
finds that the reorganization and consolidation of June 30, 1983, did,
in fact, result in more than a de minimis impact on bargaining unit
employees, and thus concludes, in agreement with the Judge, that the
Respondent violated section 7116(a)(1) and (5) of the Statute by its
failure and refusal to negotiate with the Union concerning the
procedures to be observed in implementing the reorganization and
consolidation of the Airways Facilities Sectors in the Great Lakes
Region and concerning appropriate arrangements for bargaining unit
employees adversely affected thereby. See U.S. Government Printing
Office, 13 FLRA 203 (1983), Department of Health and Human Services,
Social Security Administration, Chicago Region, 15 FLRA No. 174 (1984),
and Federal Aviation Administration, Washington, D.C., 17 FLRA No. 26
(1985), petition for review filed sub nom. Professional Airways Systems
Specialists, MEBA, AFL-CIO v. FLRA, No. 85-1284 (D.C. Cir. May 8, 1985).
With respect to the remedial order herein, the Judge found that
neither a status quo ante remedy nor an order requiring retroactive
application of any agreement reached by the parties was appropriate in
the circumstances of this case, and recommended, inter alia, a
prospective bargaining order and a nationwide posting of the remedial
unfair labor practice notice. The General Counsel and the Charging
Party excepted to the Judge's recommendation and, in their briefs, argue
that a status quo ante remedy or at least a remedy requiring retroactive
application of any agreement reached is appropriate. The Respondent
opposes such a remedy and, in its exceptions, also opposes the Judge's
recommendation for a nationwide posting contending that the posting
should be limited to the Great Lakes Region where the violations
occurred.
The Authority notes that the Judge, after due consideration and
application of the factors enumerated by the Authority in Federal
Correctional Institution, 8 FLRA 604 (1982), to the circumstances of
this case, concluded, as mentioned above, that a status quo ante remedy
was not warranted. The Authority agrees, noting particularly that the
Respondent's conduct herein, based upon a reasonable but erroneous
interpretation of the Authority's decision in U.S. Nuclear Regulatory
Commission, 6 FLRA 18 (1981), was not willful, and that the
reestablishment of the five closed offices and the relocation of
numerous unit and non-unit employees would significantly disrupt or
impair the efficiency and the effectiveness of the Agency's operations.
The Authority further agrees with the Judge's conclusion and rationale
and, based on his rationale, concludes that in the circumstances of this
case, an order requiring retroactive application of any agreement
reached by the parties would be inappropriate. See Internal Revenue
Service (District, Region, National Office Units), 16 FLRA No. 124
(1984).
However, the Authority is not unmindful of the serious consequences
which flow to unit employees as the result of an agency reorganization,
such as involved herein. In such a situation, a goal of collective
bargaining should be to mitigate the adverse effects and disruption
which are incurred by the affected employees. In the Authority's view,
an order which would require the Respondent to give priority
consideration to transferred unit employees for existing or future
vacancies within the unit in the Great Lakes Region, for which they are
qualified, and which would require the Respondent to bargain with the
Union to the extent consonant with law and regulation concerning
procedures and appropriate arrangements for employees adversely affected
by the reorganization would effectuate the purposes and policies of the
Statute. See Federal Aviation Administration, Washington, D.C., supra.
As to the posting of the remedial unfair labor practice notice, the
Authority finds that a posting in the Great Lakes Region, where the
instant violations have occurred, will best effectuate the purposes and
policies of the Statute. Thus, consistent with the Authority's findings
in similar situations involving FAA's erroneous insistence on a waiver
of the Charging Party's statutory rights, the posting of a remedial
notice at the locations where such conduct has occurred is warranted.
See Federal Aviation Administration, Northwest Mountain Region, Seattle,
Washington and Federal Aviation Administration, Washington, D.C., 14
FLRA 644 (1984); Department of Transportation, Federal Aviation
Administration, San Diego, California, 15 FLRA No. 86 (1984);
Department of Transportation, Federal Aviation Administration, Los
Angeles, California, 15 FLRA No. 21 (1984); Federal Aviation
Administration, Washington, D.C., supra, and United States Department of
Transportation, Federal Aviation Administration, 18 FLRA No. 8 (1985).
The Authority notes, moreover, that the unlawful conduct in the instant
case occurred prior to the issuance of the Authority's decision in
Federal Aviation Administration, Northwest Mountain Region. As there is
no indication that the FAA has refused to abide by the Authority's
decision in that case or in the other cited cases, or that it will
continue to engage in such unlawful conduct in the future, the Authority
finds no basis on which to order a different posting requirement than
that ordered herein.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is hereby ordered that the Federal
Aviation Administration, Washington, D.C., shall:
1. Cease and desist from:
(a) Reorganizing or consolidating Airways Facilities Sectors in the
Great Lakes Region without first affording the Professional Airways
Systems Specialists, the employees' exclusive bargaining representative,
an opportunity to negotiate with respect to the procedures which
management will observe in implementing such reorganization or
consolidation and appropriate arrangements for employees adversely
affected thereby.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Give priority consideration to transferred unit employees for
existing and future vacancies within the bargaining unit in the Great
Lakes Region, for which they are qualified.
(b) Notify the Professional Airways Systems Specialists, the
employees' exclusive bargaining representative, of any intention to
reorganize or consolidate Airways Facilities Sectors in the Great Lakes
Region and afford it an opportunity to negotiate with respect to the
procedures which management will observe in implementing such
reorganization or consolidation and appropriate arrangements for
employees adversely affected.
(c) Upon request, bargain with the Professional Airways Systems
Specialists, the employees' exclusive bargaining representative,
regarding the procedures which management will observe in implementing
any future reorganization or consolidation and appropriate arrangements
for employees adversely affected by the reorganization or consolidation
effective June 30, 1983, in the Great Lakes Region, or any subsequent
reorganization or consolidation.
(d) Post at its facilities in the Great Lakes Region, 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 head
of the Great Lakes Region, or a 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
ensure that such Notices are not altered, defaced, or covered by any
other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region V, Federal Labor
Relations Authority, 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., July 31, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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 reorganize or consolidate Airways Facilities Sectors in the
Great Lakes Region without first affording the Professional Airways
Systems Specialists, the employees' exclusive bargaining representative,
an opportunity to negotiate with respect to the procedures which
management will observe in implementing such reorganization or
consolidation and appropriate arrangements for employees adversely
affected thereby. 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 give priority consideration to transferred unit employees for
existing and future vacancies within the bargaining unit in the Great
Lakes Region, for which they are qualified. WE WILL notify the
Professional Airways Systems Specialists, the employees' exclusive
bargaining representative, of any intention to reorganize or consolidate
Airways Facilities Sectors in the Great Lakes Region and afford it an
opportunity to negotiate with respect to the procedures which management
will observe in implementing such reorganization or consolidation and
appropriate arrangements for employees adversely affected. WE WILL,
upon request, bargain with the Professional Airways Systems Specialists,
the employees' exclusive bargaining representative, regarding the
procedures which management will observe in implementing any future
reorganization or consolidation and appropriate arrangements for
employees adversely affected by the reorganization or consolidation
effective June 30, 1983, in the Great Lakes Region, or any subsequent
reorganization or consolidation.
(Agency or Activity)
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 its provisions, they
may communicate directly with the Regional Director, Region V, Federal
Labor Relations Authority, whose address is: Suite 1359-A, 175 Jackson
Boulevard, Chicago, Illinois 60604 and whose telephone number is: (312(
353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 5-CA-30366
Joseph L. Yokley
For the Respondent
Joseph E. Kolick, Jr., Esq.
For the Charging Party
Sandra J. LeBold, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose under the Federal Service Labor-Management Relations
Statute, chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq.
Upon an unfair labor practice charge filed by the Professional
Airways Systems Specialists (hereinafter referred to as PASS) against
the Federal Aviation Administration, Washington, D.C. (herein referred
to as FAA or Respondent), the General Counsel of the Authority, by the
Regional Director for Region V, issued a Complaint and Notice of Hearing
alleging Respondent violated section 7116(a)(1) and (5) of the Statute
by refusing to bargain with PASS on matters concerning the impact and
implementation of Respondent's reorganization of Airways Facilities
Sectors in its Great Lakes Region.
A hearing on the Complaint was conducted in Chicago, Illinois at
which all parties were represented and afforded full opportunity to
adduce evidence, call, examine and cross-examine witnesses and argue
orally. Briefs were filed by all parties and have been carefully
considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor and from my evaluation of the evidence, I
make the following:
Findings of Fact
Background
In 1977 the Federal Aviation Science and Technological
Association/National Association of Government Employees (hereinafter
referred to as FASTA) was certified as the exclusive collective
bargaining representative of a nationwide unit of Respondent's employees
including various employees in Respondent's Great Lakes Region Airways
Facilities Sectors (AFS). However, certain facilities in the Great
Lakes Region, e.g. the O'Hare Airport, Chicago, Illinois AFS and the
Minneapolis, Minnesota AFS, were excluded from the nationwide unit.
Thereafter, FASTA and Respondent executed a collective bargaining
agreement in 1977 which, inter alia, contained the following provisions:
"ARTICLE 47-- TECHNOLOGICAL CHANGES AND FACILITY CLOSINGS
AFFECTING THE
WORK FORCE
"Section 1. The Employer agrees to notify and consult with the
Union at the regional level, as far in advance as possible, prior
to proposing or implementing technological changes or facility
closings affecting the size or composition of the bargaining unit
work force.
"Section 2. Employees whose positions are eliminated as a
result of technological changes or facility closings shall be
offered the opportunity to be reassigned to available positions,
of equal or lower grade for which they are qualified, within their
region. The Employer shall not fill a bargaining unit position of
comparable or lower grade, within that region, until the surplus
employees are placed or given an opportunity to accept the
position. If no positions are available or when the Employer
determines that the changes in the work force are of such
magnitude that all employees affected cannot be accommodated for
reassignment, reduction-in-force procedures will then apply.
"Section 3. Prior to any proposed reorganization of the work
force, the Union will be consulted at the regional level.
"ARTICLE 54-- CHANGES IN THE AGREEMENT
"Section 1. The Parties agree to negotiate prior to
implementing changes in personnel policies, practices and matters
affecting working conditions which are within the scope of the
Employer's authority when those changes are in conflict with this
agreement.
"Section 2. 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."
On January 19, 1978, PASS was certified as the exclusive
represenative of a unit of Respondent's employees assigned to the O'Hare
AFS.
On April 27, 1979, PASS was certified as the exclusive representative
of a unit of Respondent's employees assigned to the Minneapolis AFS.
On December 31, 1981, PASS succeeded FASTA as the exclusive
collective bargaining representative of the nationwide unit FASTA had
represented since 1977, supra. Immediately upon being certified, PASS
President Howard E. Johannssen notified FAA Administrator J. Lynn Helms
by letter dated January 8, 1982, that:
" . . . PASS will demand strict compliance by the FAA with its
obligation to bargain collectively and to refrain from unilateral
changes. Specifically, PASS demands notification of all proposed
changes affecting conditions of employment and bargaining to the
full extent permitted by law prior to implementation of such
changes. This, of course, includes notice of changes which the
FAA contends may be made unilaterally as a management right, and
full bargaining on impact and implementation procedures regarding
such changes prior to implementation."
On February 2, 1982, Johannssen wrote Helms informing him that he was
the only PASS representative authorized to receive notice and conduct
negotiations regarding, inter alia, "the closing, consolidation or
relocation of FAA facilities." On that same date, in a letter to FAA
Director of Labor Relations, E. V. Curran, Johannssen stated that PASS
appreciated FAA's voluntary decision to abide by the terms of the prior
FASTA/FAA agreement supra, which was still in effect when PASS succeeded
FASTA as the collective bargaining representative, but cautioned that,
" . . . you should not misunderstand this appreciation to mean
that PASS accepts any waivers of rights contained in the FASTA
agreement. As stated in my January 9, 1982 (sic) letter to
Administrator Helms, PASS stands ready to negotiate to the full
extent permitted by law on all appropriate subjects."
Curran replied to Johannssen on February 8, 1982 and informed him
that, with regard to abiding by the terms of the FASTA/FAA agreement:
"The agency's decision was based on a careful reading of
pertinent case law. Our reading of the case law indicates that a
prior negotiated agreement remains in effect until a mutual
agreement to the contrary is reached. Accordingly, it is our
position that the provisions of the FASTA/FAA agreement remain in
effect. In this regard, we refer you to the FLRA's decision in
U.S. Nuclear Regulatory Commission and National Treasury Employees
Union, 6 FLRA No. 9 (1981)."
Further, on that same day Curran notified all its Personnel
Management Divisions and Labor Relations Branches that in
labor-management relations matters not only would the terms of the
FASTA/FAA agreement remain in effect to the maximum extent possible, but
changes in personnel policies and practices could be made " . . . after
consultation with the authorized PASS regional representatives."
Notwithstanding subsequent notification to Respondent by Johannssen that
he was to be notified of any contemplated changes in working conditions
and his insistence that negotiations on impact, implementation and
procedures would be required before changes could be implemented,
Respondent, on May 23, 1983 and at all times material herein, continued
to espouse the above policy enunciated by Curran to Johannssen and
Respondent's labor-management relations personnel.
On April 14, 1983 PASS was certified as the exclusive representative
for a consolidate unit of Respondent's employees which included, inter
alia, the nationwide unit previously represented by PASS, the O'Hare
unit and the Minneapolis unit. Although PASS and Respondent have
engaged in negotiations for a new collective bargaining agreement at the
National level since shortly after PASS succeeded FASTA, such efforts
had not resulted in a contract prior to the close of hearing. The
Reorganization
Pursuant to studies begun in 1976, Respondent concluded that a
reorganization of its National Airspace Systems was required to keep
pace with the growth and needs of aviation. A reorganization plan was
developed which, as applied to Respondent's Great Lakes Region including
the O'Hare and Minneapolis AFS, involved reducing the thirteen Airway
Facilities Sector Field Offices in that Region to eight Sector Field
Offices.
On February 12, 1982 and on several occasions thereafter FAA met with
PASS Central Regional Vice-President Warren Zentz and briefed him on the
planned reorganization of the Great Lakes Region. /1/ Respondent
followed what it perceived to be its obligation to "consult" under the
expired FASTA agreement and Zentz was asked for his comments and
suggestions at those sessions. /2/
By letters of September 9, 14 and 15, 1982 PASS President Johannssen
demanded bargaining on the reorganization and was informed the
reorganization was not yet final. Johannssen again demanded bargaining
on the reorganization in letters of January 4, 1983 and on April 14,
1983, specifically requested bargaining on "the impact and
implementation of (the reorganization) as well as the procedures by
which these changes will be conducted." Respondent replied to these
demands by letter of May 23, 1983 by again stating its position that it
was not required to negotiate with the Union on the reorganization and
it had met its obligation to consult by soliciting comments from
Regional Vice-President Zentz, supra.
Respondent implemented the reorganization of the Great Lakes Region
on June 30, 1983. As a result, by FAA's own admission, at least 47 unit
employees were reassigned to different jobs. /3/ Of these 47 employees,
7 relocated outside their commuting areas, 3 resigned rather than
relocate, 4 retired rather than relocate, 1 accepted a downgrade rather
than relocate and another employee transferred to another position. The
remaining employees received reassignments within their commuting areas.
An unknown number of employees had their work schedules or shifts
changed and some employees were required to assume new or additional
duties. Some employees were required to travel more and cover larger
geographic areas in the performance of their duties. Twelve employees
were required to undergo additional training and acquire new
certifications to perform their duties. /4/
Discussion and Conclusions
The issues to be resolved herein is whether Respondent violated
section 7116(a)(1) and (5) of the Statute when it refused to negotiate
with the Union over the impact and implementation of its reorganization
/5/ and, if an unfair labor practice is found to have occurred, would a
status quo ante remedy be warranted.
It is clear that Respondent refused to negotiate with the Union on
the procedures, impact and implementation concerning the reorganization
and considered itself only obligated to consult with the Union on the
matter. However, Respondent bases its contention that it was privileged
to refuse to negotiate with the Union and pursue its course of conduct
on Article 47 and Article 54 of the FAA/FASTA agreement, supra.
Respondent contends that its relationship with PASS was governed by the
terms of that agreement and relies on the Authority's decision in U.S.
Nuclear Regulatory Commission, 6 FLRA 18 (1981). In that case the
Authority held, in a successor union situation as herein, that existing
personnel policies, practices and matters affecting working conditions
contained in a negotiated agreement continue, to the maximum extent
possible, upon the expiration of the agreement absent an express
agreement to the contrary or unless modified in a manner consistent with
the Statute.
However, in two recent cases involving the parties herein the
Authority distinguished between "mandatory" and "permissive" subjects of
bargaining with regard to the obligation of the parties to maintain
existing conditions of employment. Federal Aviation Administration,
Northwest Mountain Region, Seattle, Washington, and Federal Aviation
Administration, Washington, D.C., 14 FLRA No. 89 (1984) and Department
of Transportation, Federal Aviation Administration, Los Angeles,
California, 15 FLRA No. 21 (1984). In those cases the Authority
explained that the principle enunciated in Nuclear Regulatory
Commission, supra, with respect to the maintenance of existing
conditions of employment, applied only with regard to "mandatory"
subjects of bargaining. The Authority further held that with regard to
"permissive" subjects of bargaining, /6/ either party may unilaterally
elect not to be bound by the existing conditions of employment upon the
expiration of that agreement. In addition, the Authority specifically
concluded that the waiver of union bargaining rights found in Article
54, Section 2 of the FASTA agreement, supra, constituted a permissive
subject of bargaining which PASS was entitled to terminate when it
became the exclusive representative.
Based upon the Authority's decision in FAA, Seattle and FAA Los
Angeles, supra, I conclude that the waivers of bargaining rights set out
in Articles 47 and 54 of the FASTA agreement, supra, terminated when
PASS President Johannssen unambiguously conveyed to Respondent that PASS
did not wish to be bound by these provisions. Thus, by its actions PASS
extinguished FASTA's contractual waivers regarding both the right to
designate the proper person to receive notice of contemplated changes in
working conditions /7/ and the right to negotiate, not merely consult,
on the procedures, impact and implementation of the reorganization
within the Great Lakes Region. Accordingly, I conclude that Respondent
violated section 7116(a)(1) and (5) of the Statute by its failure and
refusal to negotiate with the Union concerning the impact and
implementation of its reorganization and consolidation of the Airways
Facilities Sectors in the Great Lakes Region and the procedures by which
such reorganization would be effectuated, as alleged in the Complaint
herein.
Findings and Conclusions on Remedy
Counsel for the General Counsel and the Union urge that a status quo
ante remedy be ordered. Respondent opposes the imposition of such an
order. All parties cite Federal Correctional Institution, 8 FLRA 604
(1982), to support their positions. In Federal Correctional Institution
the Authority stated:
" . . . in determining whether a status quo ante remedy would
be appropriate in any specific case involving a violation of the
duty to bargain over impact and implementation, the Authority
considers, among other things, (1) whether, and when, notice was
given to the union by the agency concerning the action or change
decided upon; (2) whether, and when, the union requested
bargaining on the procedures to be observed by the agency in
implementing such action or change and/or concerning appropriate
arrangements for employees adversely affected by such action or
change; (3) the willfulness of the agency's conduct in failing to
discharge its bargaining obligations under the Statute; (4) the
nature and extent of the impact experienced by adversely affected
employees; and (5) whether, and to what degree, a status quo ante
remedy would disrupt or impair the efficiency and effectiveness of
the agency's operations."
Viewing Respondent's actions in the light of the criteria set forth
above I conclude a status quo ante remedy would not be warranted in this
case. Respondent followed its course of conduct and refused to
negotiate on the reorganization in reliance upon the Authority's
decision in Nuclear Regulatory Commission, supra, which, in my view,
lent itself at that time to the interpretation Respondent gave it.
Further, while the impact of the change on employees was substantial,
the degree of disruption upon the agency's operations through imposition
of the requested remedy would also be substantial. Thus, a status quo
ante remedy would require reestablishing five closed offices and
relocating numerous unit and non-unit employees which, according to
Respondent's estimate, would cost between $600,000 to $1,000,000. Any
subsequent reorganization which might occur after negotiations with PASS
would add not only to the cost involved, but the disruption of
Respondent's activities as well. Accordingly, I will not recommend that
a status quo ante remedy be ordered.
Counsel for the General Counsel also suggests that if a status quo
ante remedy is not given, a remedy requiring retroactive application of
any agreement reached by the parties after fulfilling their bargaining
obligation should be imposed. I find imposing such a remedy at this
time would not be appropriate. Where, as here, the basic remedy
requires the parties to engage in negotiations, it is entirely possible
that an impasse may occur during bargaining and the matter will
ultimately be sent to the Federal Service Impasses Panel (FSIP) for
resolution. In that event, the FSIP, when considering impasses
proposals, would properly consider a proposal for retroactive
application and imposing such a requirement at the present time would
deprive the FSIP of that option and thereby impair the flexibility the
FSIP requires to execute its Statutory function. Accordingly, the
request for retroactive application is denied.
In view of the entire foregoing I recommend the Authority issue the
following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Federal Aviation Administration, Washington,
D.C., shall:
1. Cease and desist from:
(a) Reorganizing or consolidating Airways Facilities Sectors
without first affording the Professional Airways Systems
Specialists, the employees' exclusive bargaining representative,
an opportunity to negotiate with respect to the procedures which
management will observe in implementing such reorganization or
consolidation and appropriate arrangements for employees adversely
affected thereby.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Notify the Professional Airways Systems Specialists, the
employees' exclusive bargaining representative, of any intention
to reorganize or consolidate Airways Facilities Sectors and afford
it an opportunity to negotiate with respect to the procedures
which management will observe in implementing such reorganization
or consolidation and appropriate arrangements for employees
adversely affected.
(b) Upon request, bargain with the Professional Airways Systems
Specialists, the employees' exclusive bargaining representative,
regarding the procedures which management will observe in
implementing any future reorganization or consolidation and
appropriate arrangements for employees adversely affected by the
reorganization or consolidation effective June 30, 1983 in the
Great Lakes Region or any subsequent reorganization or
consolidation.
(c) Post at its facilities wherever employees in the
consolidated unit represented by the Professional Airways Systems
Specialists, certified on April 14, 1983, are employed, 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 Administrator and shall be posted and maintained by
him for 60 consecutive days thereafter in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The Administrator shall take
reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the 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.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: July 20, 1984
Washington, DC
APPENDIX
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
STATUTE We hereby notify our employees that:
WE WILL NOT reorganize or consolidate Airways Facilities Sectors without
first affording the Professional Airways Systems Specialists, the
employees' exclusive bargaining representative, an opportunity to
negotiate with respect to the procedures which management will observe
in implementing such reorganization or consolidation and appropriate
arrangements for employees adversely affected thereby. 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 upon request, bargain with
the Professional Airways Systems Specialists, the employees' exclusive
bargaining representative, regarding the procedures which management
will observe in implementing any future reorganization or consolidation
and appropriate arrangements for employees adversely affected by the
reorganization or consolidation effective June 30, 1983 in the Great
Lakes Region or any subsequent reorganization or consolidation.
(Activity or Agency)
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
question 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: 175 W. Jackson Blvd.,
Suite A-1359, Chicago, IL 60604, and whose telephone number is (312)
353-6306.
--------------- FOOTNOTES$ ---------------
/1/ Other briefing meetings occurred on December 17, 1982 and March
17, 1983.
/2/ At the March 17, 1983 briefing Zentz requested that Respondent
bargain on the reorganization and Respondent informed him the matter was
not negotiable.
/3/ The record reveals that 4 additional employees were also
reassigned.
/4/ Technicians must acquire "certification" before they can certify
that equipment is operational. In the past, employees who failed to
obtain the necessary certification were discharged.
/5/ There is no contention that Respondent did not fulfill the
contractual obligation to consult as required by the FAA/FASTA
agreement.
/6/ "Permissive" subjects of bargaining are those matters which are
outside the required scope of bargaining under the Statute including
those matters which are excepted from the obligation to negotiate by
section 7106(b)(1) of the Statute.
/7/ See, Department of Health and Human Services, Social Security
Administration, Field Assessment Office, Atlanta, Georgia, 11 FLRA No.
78 (1983).