19:0732(89)CA - Transportation, FAA and Professional Airways Systems Specialists -- 1985 FLRAdec CA

 19 FLRA No. 89
 
 UNITED STATES DEPARTMENT OF TRANSPORTATION
 FEDERAL AVIATION ADMINISTRATION
 Respondent
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS
 SPECIALISTS, AFL-CIO
 Charging Party
 
                                            Case No. 6-CA-40025
 
                            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, the
 Authority finds:
 
    The complaint essentially alleges that the Federal Aviation
 Administration (the Respondent or FAA) violated section 7116(a)(1) and
 (5) of the Federal Service Labor-Management Relations Statute (the
 Statute) by (1) unilaterally implementing a change in the duty hours of
 the basic watch schedule at its San Antonio, Texas Radar/Arts Unit
 (Radar/Arts Unit) without notifying the Professional Airways Systems
 Specialists (PASS or the Union), at the national level of exclusive
 recognition, and providing it the opportunity to negotiate on the
 change;  and (2) by refusing to negotiate with the Union's designated
 representatives concerning the alleged change.
 
    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 Radar/Arts Unit;  this nationwide
 unit was previously represented by the Federal Aviation Science and
 Technological Association (FASTA).  /1/ 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
 . . .." By letter dated May 16, 1983, /2/ Johannssen, among other
 things, again advised the Respondent's administrator that notices
 involving changes in conditions of employment of unit members should be
 directed to him.
 
    On July 8, the Respondent's manager at the Radar/Arts Unit notified
 PASS' local representative of an intention to change the duty hours of
 the basic watch schedule from 8:00 a.m.-4:00 p.m. and 4:00 p.m.-12:00
 midnight to 7:00 a.m.-3:00 p.m. and 3:00 p.m.-11:00 p.m., and invited
 the local representative to submit any comments by July 15.  On July 14,
 the representative submitted a request to bargain on the proposed
 change, and further advised the Respondent that the only person
 authorized to negotiate for the Union was Johannssen, or his designee.
 Thereafter, commencing on July 21st and through the month of September,
 the Radar Arts/Unit manager sought without success to discuss the matter
 with the local union representative and eventually presented the
 proposed change in duty hours to the representative to be effectuated on
 October 23.  On October 4, Johannssen wrote a letter to the Respondent's
 Manager at the San Antonio Airway Facilities Sector (San Antonio AFS)
 informing him that he had designated Robert Garnett to enter into
 negotiations on the proposed change, and on that same day Garnett
 requested negotiations on the proposed change in duty hours of the basic
 watch schedule at the Radar/Arts Unit.  On October 27, the Manager of
 the San Antonio AFS responded to Garnett's letter and stated, inter
 alia, that the Union was given an opportunity to provide input regarding
 the proposed changes but had declined to do so, and further indicated
 that he would be available to consult with Garnett on these matters if
 he desired.  On December 4, Garnett replied to Respondent's letter of
 October 27, and again requested to negotiate on the change.  The change
 which affected six employees was implemented on October 23, and the
 stipulated record indicates that, as a result, the shifts noted above
 were changed to start and end one hour earlier.
 
    The Respondent asserts that its bargaining obligation on the subject
 change was limited to consultation by virtue of provisions in the FASTA
 agreement which, in its view, constitute a clear and unequivocal waiver
 of the Union's right under the Statute to negotiate over changes in
 working conditions as herein, and that such waiver is binding on PASS.
 Further, it contends that, under the FASTA agreement, it was required to
 and did notify the local Union representative concerning the proposed
 change and that such representative was given an opportunity to consult
 on the change prior to its implementation.
 
    The Authority has determined that an agency's decision to change the
 starting and quitting times of previously established shifts is subject
 to the duty to bargain unless it can be demonstrated that such change
 was 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,
 and therefore negotiable only at the election of the agency.  /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).
  In the instant case, where it is neither alleged nor stipulated that
 the resulting change had an effect on the numbers, types and grades of
 employees or positions within the unit, the Authority finds that the
 Respondent was obligated to bargain with PASS concerning its decision to
 change the starting and quitting times of the established shifts, unless
 PASS' right to bargain on the matter was clearly and unmistakably waived
 as asserted by the Respondent.
 
    In Federal Aviation Administration, Northwest Mountain Region,
 Seattle, Washington and Federal Aviation Administration, Washington,
 D.C., 14 FLRA 644 (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 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 change herein.  Accordingly, and for the reasons more fully set
 forth in the previously filed 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 change
 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 where the record reflects that PASS expressed its statutory
 right to designate its own representatives by notifying the Respondent
 of the Union's representatives designated to receive notice and to
 bargain on the matter herein.
 
    Having found no waiver of PASS' statutory rights, the Authority
 concludes that the Respondent had a statutory obligation to provide
 prior notice to PASS' designated representative and afford the Union an
 opportunity to negotiate over the subject change.  Therefore, the
 Authority finds that the Respondent by the above noted actions refused
 to fulfill its duty to bargain 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.
 
    To remedy the unfair labor practice conduct found herein, PASS has
 requested a status quo ante order.  Noting particularly that the
 Respondent failed to meet its duty under the Statute to bargain with
 PASS concerning the decision to change the starting and quitting times
 of the previously existing shifts, described above, the Authority finds
 that an order directing reinstatement of the previously existing
 starting and quitting times of such shifts and, upon request of PASS,
 requiring the parties to negotiate concerning the starting and quitting
 times thereof, is necessary to effectuate the purposes and policies of
 the Statute.  In this regard, the Authority in Department of the Air
 Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981), similarly
 ordered a restoration of the preexisting starting and quitting times
 where management had failed to notify and bargain with the exclusive
 representative concerning the decision to change such established
 conditions of employment.  In support of that conclusion, the Authority
 noted the literal language and the legislative history of the Statute
 and the necessity of such an order to avoid rendering meaningless the
 mutual obligation under the Statute to negotiate concerning changes in
 conditions of employment.  To the same effect, see U.S. Customs Service,
 Region V, New Orleans, Louisiana, supra.  /4/
 
    In finding an order directing reinstatement of the preexisting
 starting and quitting times to be appropriate, the Authority is not
 unmindful that the unit employees herein are engaged in the repair and
 maintenance of radar, communication, navigational, computer, and other
 electronic equipment used in FAA's national air traffic control system,
 and that a change in such employees' duty hours may under certain
 circumstances involve a question of public safety.  Noting, however,
 that the Respondent did not argue and that the stipulated record
 contains no evidence to support a finding that public safety would in
 any way be affected by such an order, the Authority concludes, in the
 circumstances of this case, that public safety considerations do not
 preclude our issuing the foregoing order as an appropriate remedy
 herein.
 
    With regard to PASS' request that the remedy be nationwide in scope,
 the Authority finds that a posting of the remedial unfair labor practice
 notice in the San Antonio Airway Facilities sector and the San Antonio,
 Texas Radar/Arts Unit, 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 only at the locations 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);
 United States Department of Transportation, Federal Aviation
 Administration, 18 FLRA No. 8 (1985);  Federal Aviation Administration,
 Washington, D.C., 19 FLRA No. 59 (1985);  Department of Transportation,
 Federal Aviation Administration, 19 FLRA No. 61 (1985);  and United
 States Department of Transportation, Federal Aviation Administration, 19
 FLRA No. 62 (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 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., shall:
 
    1.  Cease and desist from:
 
    (a) Changing the duty hours of the basic watch schedule at its San
 Antonio, Texas Radar/Arts Unit 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) Changing the duty hours of the basic watch schedule at the San
 Antonio, Texas Radar/Arts Unit without providing prior notice to the
 representative designated by the Professional Airways Systems
 Specialists, AFL-CIO, the exclusive representative of its employees.
 
    (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 Federal Service Labor-Management Relations
 Statute:
 
    (a) Reestablish the 8:00 a.m.-4:00 p.m. and 4:00 p.m.-12:00 midnight
 starting and quitting times for unit employees at the San Antonio, Texas
 Radar/Arts Unit and afford the Professional Airways Systems Specialists,
 AFL-CIO, through its designated representative, prior notice of and the
 opportunity to negotiate with respect to any proposed changes thereto.
 
    (b) Post at its facilities at the San Antonio Airway Facilities
 Sector and the San Antonio, Texas Radar/Arts 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 San Antonio Airways 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 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
 VI, 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., August 15 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 duty hours of the basic watch schedule at the San
 Antonio, Texas Radar/Arts Unit without affording the Professional
 Airways Systems Specialists, AFL-CIO, the exclusive bargaining
 representative of our employees, the opportunity to negotiate with
 respect to such change.  WE WILL NOT change the duty hours of the basic
 watch schedule at the San Antonio, Texas Radar/Arts Unit without
 providing prior notice to the representative designated by the
 Professional Airways Systems Specialists, AFL-CIO, the exclusive
 representative of our employees.  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.-4:00 p.m. and
 4:00-12:00 midnight starting and quitting times for unit employees at
 the San Antonio, Texas Radar/Arts Unit and afford the Professional
 Airways Systems Specialists, AFL-CIO, through its designated
 representative, prior notice of and 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 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/ Subsequently, on April 14, 1983, PASS was certified in a larger
 consolidated unit of the Respondent's employees.
 
 
    /2/ All dates hereafter refer to the year 1983 unless otherwise
 noted.
 
 
    /3/ 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(.)
 
 
    /4/ Compare Department of Transportation, Federal Aviation
 Administration, Los Angeles, California, supra, where the Authority
 found that a status quo ante remedy was not feasible since the
 preexisting watch schedule was based on a staffing level of six
 employees which no longer existed at the time that the agency altered
 the watch schedule due to the resignation of one of the six employees;
 and United States Department of Transportation, Federal Aviation
 Administration, supra, where the Authority also found for similar
 reasons (one of six employees manning the watch schedules having been
 transferred) that such a remedy was not appropriate.