[ v19 p482 ]
19:0482(62)CA
The decision of the Authority follows:
19 FLRA No. 62
UNITED STATES DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
Charging Party
Case No. 6-CA-30179
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, accompanying exhibits, and contentions of the parties, /1/ the
Authority finds:
The amended complaint essentially alleges that the Respondent, United
States Department of Transportation, Federal Aviation Administration
(FAA), through its agent at the Fort Worth Air Route Traffic Control
Center, Airway Facilities Sector (Fort Worth ARTCC, AFS), violated
section 7116(a)(1) and (5) of the Statute /2/ by (1) unilaterally
implementing a change in the practice of holiday staffing without
notifying the Professional Airways Systems Specialists (PASS), at the
national level of exclusive recognition, and providing it the
opportunity to negotiate on the impact and implementation of the change;
(2) unilaterally changing the basic watch schedule of unit employees
without notifying PASS at the national level of exclusive recognition,
and providing it the opportunity to negotiate over the change, and (3)
by refusing to negotiate with PASS' designated representative concerning
the alleged changes noted above.
On December 31, 1981, PASS was certified as the exclusive
representative of a nationwide unit of the Respondent's employees,
including employees located at the Fort Worth, ARTCC, AFS; this
nationwide unit was previously represented by the Federal Aviation
Science and Technological Association (FASTA). /3/ Prior to PASS'
initial certification, the Respondent and FASTA had negotiated an
agreement which became effective in 1977 for a two-year period and which
was automatically renewed thereafter following the agreement's
expiration date.
On May 28, 1982, Howard Johannssen, PASS' National President, sent a
letter to the Respondent's Administrator, wherein he stated, in part,
that he had received "persistent reports of local and regional FAA
management proposals to make changes in conditions of employment within
the unit" and further stated that "any prior bargaining authority given
to any PASS representative other than (himself was) . . . revoked with
respect to the national unit," and that he should be "notified of all
proposed changes in conditions of employment of bargaining unit members
. . . . " On January 7, 1983, /4/ the Acting Manager of the Fort Worth
ARTCC, AFS sent a letter to PASS' local representative regarding a
proposed watch schedule for the seven-crew concept of the new ARTCC, AFS
organization. The letter also advised him that the proposed watch
schedule was being forwarded to him for the "purpose of consultation in
accordance with (the FASTA) agreement." By letter dated January 19,
PASS' local representative, in reply to such letter, informed the
Manager at the Fort Worth ARTCC, AFS that the January 7 letter had been
forwarded to PASS' National Office; that all negotiation was done at
the national level; and that he had no authority to bargain on this
issue.
By letter dated January 17, PASS' National President demanded
bargaining on the proposed watch schedule and further requested the
Respondent to refrain from implementing the change pending completion of
negotiations. The Respondent did not respond to this letter. On
January 26, the Manager of the Fort Worth ARTCC, AFS met with PASS'
local representative regarding the proposed change. During such
meeting, the representative maintained PASS' position that such change
was subject to negotiations. The Manager maintained the Respondent's
position that under the FASTA agreement only consultation was required.
The watch schedule was posted on January 27, and on February 25 the
Respondent's Manager proposed a revision to such schedule. On March 14,
PASS' local representative notified the Respondent that the proposed
revision had been forwarded to Johannssen who, in a March 16 telephone
conversation with the Respondent, reiterated PASS' position that the
schedule should be negotiated. On March 17, the revised watch schedule
was posted as changed with an effective date of June 26.
With regard to the observance of holidays by crew personnel, the
Respondent's practice, which commenced on October 22, 1981, required
shift personnel, when scheduled, to work on holidays. On January 14,
1983, the Respondent's Field Manager met with PASS' local
representatives and proposed to change the October 22 requirement from
two to one crew to work holidays. On January 21, several of the
Respondent's Managers and PASS' local representatives met again, and
during such meeting the local representatives were, among other things,
shown a copy of the Manager's proposed letter of January 21, in which he
directed all supervisors to schedule only one crew per shift. The local
representatives did not waive PASS' right to bargain over this matter.
Following this meeting, such letter, which was signed by the Manager,
was distributed to all supervisors and, in part, directed them to
effectuate the change on January 27. Johannssen was not notified
concerning this change.
As the stipulated record indicates, the Respondent takes the position
that the FASTA agreement contains a clear and unequivocal waiver of
FASTA's right under the Statute to negotiate over changes in working
conditions as herein; that such waiver is binding on PASS; and that it
bargained in good faith with PASS concerning the reduction in holiday
staffing and concerning the basic watch schedule since it engaged in
consultation with PASS as required by the FASTA agreement. Further, the
record reflects that the Respondent relied on the procedures set forth
in the FASTA agreement in providing notice to PASS concerning the
matters herein.
In Federal Aviation Administration, Northwest Mountain Region,
Seattle, Washington and Federal Aviation Administration, Washington,
D.C., 14 FLRA 644 (1984), a case involving the FAA, PASS and the FASTA
agreement involved herein, the Authority determined that the waiver of
bargaining rights contained in the FASTA agreement 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
expired agreement when PASS indicated it no longer wished to be bound by
such a provision, but instead sought to exercise its bargaining rights.
See also Department of Transportation, Federal Aviation Administration,
Los Angeles, California, 15 FLRA No. 21 (1984).
The instant case involves the same parties and the identical
assertion by PASS of its right to negotiate rather than consult about
the changes herein. Accordingly, and for the reasons more fully set
forth in the previously cited cases, the Authority finds that the
Respondent was no longer free to insist upon the practice contained in
the expired FASTA agreement so as to preclude bargaining over the
changes herein. Further, based on the rationale contained in Department
of Transportation, Federal Aviation Administration, San Diego,
California, 15 FLRA No. 86 (1984), the Authority finds that the
Respondent was no longer free to insist upon the practice contained in
the expired FASTA agreement of notifying local union representatives
regarding such changes where the record reflects that PASS expressed its
statutory right to designate its own representative by notifying the
Respondent that PASS' National President was the representative
designated to receive notice and to bargain on the matters herein.
Having found that the waiver of bargaining rights contained in the
expired FASTA agreement was no longer binding on PASS and the
Respondent, the Authority concludes that the Respondent had a statutory
obligation to provide prior notice to PASS' designated representative
and afford PASS an opportunity to negotiate over the proposed change in
the watch schedule. See Department of Transportation, Federal Aviation
Administration, Los Angeles, California, supra, wherein the Authority
found that the agency had a statutory obligation to provide prior notice
to the union therein (PASS) and afford it an opportunity to negotiate
over the change in watch schedule. In this regard, the record reveals
that the Respondent failed to provide prior notice to PASS' designated
representative but instead insisted on providing notice to PASS at the
local level pursuant to the FASTA agreement; and that the Respondent
refused to bargain with PASS over the subject change, insisting instead
that its bargaining obligation was limited to consultation. Therefore,
the Authority finds that the Respondent, by the above noted actions,
refused to fulfill its duty to bargain over the proposed change in the
watch schedule in violation of section 7116(a)(1) and (5) of the
Statute, and that the Respondent's failure to provide notice to PASS'
designated representative also constitutes a violation of section
7116(a)(1) and (5) of the Statute.
With respect to the change in holiday staffing, the Authority notes
that the dispositive facts and position of the Respondents, as set forth
above, are similar to those in Federal Aviation Administration,
Northwest Mountain Region, supra. Therefore, having found that the
waiver of bargaining rights contained in the expired FASTA agreement was
not longer binding on PASS and the Respondent, and for the reasons more
fully stated in Federal Aviation Administration, Northwest Mountain
Region, supra, the Authority finds that the Respondent was obligated to
bargain concerning the procedures to be observed in implementing the
holiday staffing change, and concerning appropriate arrangements for
employees adversely affected thereby. See Department of the Treasury,
Internal Revenue Service, Jacksonville District, Jacksonville, Florida,
15 FLRA No. 187 (1984) and Social Security Administration, 16 FLRA No.
17 (1984). Therefore, the Respondent's refusal to bargain with PASS in
this regard, insisting instead that its bargaining obligation was
limited to consultation, constitutes a violation of section 7116(a)(1)
and (5) of the Statute. The Authority further finds that the
Respondent's failure to provide notice to PASS' designated
representative concerning this change also constitutes a violation of
section 7116(a)(1) and (5) of the Statute.
To remedy the unfair labor practice conduct found herein, the General
Counsel requests a status quo ante remedy with respect to both changes
while PASS requests that such remedy be limited to the change concerning
holiday staffing. Further, PASS requests a backpay remedy for those
technicians who would have worked holidays under the old policy and were
denied the opportunity to do so, and also asks that the remedy be
nationwide in scope.
With respect to the change in the Respondent's holiday staffing
practice, the Authority finds, for the reasons expressed in Federal
Aviation Administration, Northwest Mountain Region, supra, that a status
quo ante order is warranted. In this regard, the Authority notes in
particular, after considering the specific factors enumerated in Federal
Correctional Institution, 8 FLRA 604 (1982), that the record herein, as
in Federal Aviation Administration, Northwest Mountain Region, supra,
does not indicate that such a remedy would create a serious disruption
in the Respondent's operation, but would merely require the FAA to
return to a policy that it voluntarily followed previously. The
Authority further finds, for the reasons expressed in Federal Aviation
Administration, Northwest Mountain Region, supra, that a backpay remedy
is unwarranted. Further, concerning the change in the basic watch
schedule, the Authority, noting in particular that PASS specifically
does not seek a status quo ante remedy "because the terms of the revised
work schedule are acceptable to the Union," /5/ finds that such a remedy
is not required herein. Rather, the Authority finds that it will
effectuate the purposes and policies of the Statute to order that the
Respondent, upon request, must negotiate with PASS concerning the change
in the unit employees' basic watch schedule.
With regard to PASS' request that the remedy be nationwide in scope,
the Authority finds that a posting of a remedial unfair labor practice
notice in the Fort Worth Air Route Traffic Control Center, Airway
Facilities Sector, where the instant violations have occurred, will also
best effectuate the purposes and policies of the Statute. Thus,
consistent with the Authority's findings in similar situations involving
FAA's unlawful insistence on a waiver of PASS' statutory rights, the
posting of a remedial notice at the location where such unlawful conduct
has occurred is warranted. See Federal Aviation Administration,
Northwest Mountain Region, supra; Federal Aviation Administration, San
Diego, California, supra; Department of Transportation, Federal
Aviation Administration, Los Angeles, California, supra; 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);
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 Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the United States Department
of Transportation, Federal Aviation Administration, shall:
1. Cease and desist from:
(a) Changing the holiday staffing practice at the Fort Worth Air
Route Traffic Control Center, Airway Facilities Sector, without
providing prior notice to the representative designated by the
Professional Airways Systems Specialists, the employees' exclusive
representative, and affording it an opportunity to bargain concerning
the procedures to be observed in implementing such change and
appropriate arrangements for unit employees adversely affected thereby.
(b) Changing the basic watch schedule of unit employees at the Fort
Worth Air Route Traffic Control Center, Airway Facilities Sector,
without providing prior notice to the representative designated by the
Professional Airways System Specialists, the exclusive representative of
its employees, and affording such representative the opportunity to
negotiate over such change.
(c) In any like or related manner interfering with, restraining, or
coercing its 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 Statute:
(a) Rescind the change in the holiday staffing practice at the Fort
Worth Air Route Traffic Control Center, Airway Facilities Sector, which
was effectuated in January 1983, and restore the pre-existing practice.
(b) Notify the Professional Airways Systems Specialists of any
intended change in the holiday staffing practice at the Fort Worth Air
Route Traffic Control Center, Airway Facilities Sector and afford it an
opportunity to request bargaining concerning the procedures to be
observed in implementing such change and appropriate arrangements for
unit employees adversely affected thereby.
(c) Upon request, negotiate with the Professional Airways Systems
Specialists concerning the change in the unit employees' basic watch
schedule.
(d) Post at its Fort Worth Air Route Traffic Control Center, Airways
Facilities Sector, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Such forms shall be
signed by the head of the Fort Worth Air Route Traffic Control Center,
Airway Facilities Sector, 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 of
employees are customarily posted. Reasonable steps shall be taken to
insure 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 VI, 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 change the holiday staffing practice at the Fort Worth Air
Route Traffic Control Center, Airway Facilities Sector, without
providing prior notice to the representative designated by the
Professional Airways Systems Specialists, the employees' exclusive
representative, and affording it an opportunity to bargain concerning
the procedures to be observed in implementing such change and
appropriate arrangements for unit employees adversely affected thereby.
WE WILL NOT change the basic watch schedule of unit employees at the
Fort Worth Air Route Traffic Control Center, Airway Facilities Sector,
without providing prior notice to the representative designated by the
Professional Airways Systems Specialists, the exclusive representative
of our employees, and affording such representative the opportunity to
negotiate with respect to such change. 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 rescind the change in the holiday staffing
practice at the Fort Worth Air Route Traffic Control Center, Airway
Facilities Sector, which change was effectuated in January 1983, and
restore the pre-existing practice. WE WILL notify the Professional
Airways Systems Specialists of any intended change in the holiday
staffing practice at the Fort Worth Air Route Traffic Control Center,
Airway Facilities Sector and afford it an opportunity to request
bargaining concerning the procedures to be observed in implementing such
change and appropriate arrangements for unit employees adversely
affected thereby. WE WILL, upon request, negotiate with the
Professional Airways Systems Specialists concerning the change in the
unit employees' basic watch schedule.
(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 VI, Federal
Labor Relations Authority, whose address is: Federal Office Building,
525 Griffin Street, Suite 926, Dallas, TX 75202, and whose telephone
number is: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ The Respondent's brief was untimely filed and therefore has not
been considered by the Authority.
/2/ Section 7116(a)(1) and (5) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/3/ Subsequently, on April 14, 1983, PASS was certified for a larger
consolidated unit of the Respondent's employees.
/4/ All dates hereafter refer to the year 1983 unless otherwise
noted.
/5/ Union brief at 20.