[ v20 p273 ]
20:0273(33)CA
The decision of the Authority follows:
20 FLRA No. 33
FEDERAL AVIATION ADMINISTRATION
WASHINGTON D.C.
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, MEBA, AFL-CIO
Charging Party
Case Nos. 5-CA-40069; 5-CA-40095
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 filed exceptions to the
Judge's Decision and a supporting brief, and the General Counsel and the
Charging Party each filed an opposition to the Respondent's exceptions.
Subsequently, the Respondent filed a motion to withdraw a portion of its
exceptions to the Judge's Decision.
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, conclusions and the recommended Order, as modified
below.
The Judge found that the Respondent violated section 7116(a)(1) and
(5) of the Statute by refusing to negotiate with the Charging Party
(Union) on the procedures to be used in the implementation of a
reorganization and the 1980's Maintenance Plan for the Great Lakes
Region, and concerning appropriate arrangements for unit employees
adversely affected thereby. To remedy the unfair labor practice conduct
found, the Judge recommended, inter alia, a status quo ante Order; a
nationwide posting of the remedial unfair labor practice notice; and
the signing of that notice by the Administrator of FAA.
The Respondent filed exceptions limited to the Judge's recommended
Order. In its initial exceptions, it argued that a status quo ante
remedy is unwarranted in the circumstances of this case, and that the
posting of the notice herein should be limited to the Great Lakes Region
where the violations occurred rather than nationwide as the Judge
recommended. In its motion to withdraw a portion of its exceptions, the
Respondent noted its intention to "fully adhere" to that portion of the
Judge's recommended Order requiring a return to the status quo ante in
the reorganization of the Great Lakes Region Air Route Traffic Control
Centers, and sought to withdraw the portion of its exceptions that takes
issue with the Judge's recommendation for such a remedy. Also, it
specifically stated that the motion "does not extend to the remaining
portion of (its) exceptions which primarily concerns the . . . Judge's
proposed remedial action of a broad, nation-wide cease and desist order
and posting." The Authority hereby grants the Respondent's motion as
requested.
In agreement with the Judge and based on his rationale, and noting
particularly that the Respondent's exceptions were limited to the
Judge's recommended remedy only, the Authority finds that the Respondent
violated section 7116(a)(1) and (5) of the Statute by refusing to
negotiate with the Union concerning procedures and appropriate
arrangements for unit employees adversely affected by the implementation
of the reorganization and the 1980's Maintenance Plan for the Great
Lakes Region. With respect to the recommended Order, the Authority,
noting the Respondent's withdrawal of its exceptions to the recommended
status quo ante remedy, its stated intention to fully adhere to such
remedy, and the absence of either an assertion or record evidence that
such a remedy would seriously disrupt the Respondent's operations,
adopts the Judge's findings and recommended Order requiring a return to
the status quo ante with regard to the reorganization and the 1980's
Maintenance Plan herein. /1/
As to the posting of a 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 unlawful insistence on a waiver of
the Union's statutory rights, it is concluded that 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, 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., 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, supra. 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, it is
hereby ordered that the Federal Aviation Administration, Washington,
D.C., shall:
1. Cease and desist from:
(a) Reorganizing Air Route Traffic Control Centers 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 and appropriate
arrangements for employees adversely affected thereby.
(b) Implementing the 1980's Maintenance Plan for Airway Facilities 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 plan and appropriate
arrangements for employees adversely affected thereby.
(c) 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) Return to the practices which existed prior to implementing the
reorganization of the Great Lakes Region Air Route Traffic Control
Centers on or about October 1, 1983.
(b) Return to the practices which existed prior to its implementing
the 1980's Maintenance Plan for the Great Lakes Region Airway Facilities
on or about November 23, 1983.
(c) Notify the Professional Airways Systems Specialists, the
employees' exclusive bargaining representative, of any intention to
reorganize Air Route Traffic Control Centers in the Great Lakes Region
or to implement a maintenance plan or program in Airways Facilities and
afford it an opportunity to request negotiations with respect to the
procedures which management will observe in implementing such
reorganization or plan and appropriate arrangements for employees
adversely affected.
(d) 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 of the Air Route Traffic Control Centers in
the Great Lakes Region or maintenance plan or program in Airways
Facilities and appropriate arrangements for employees adversely affected
by the reorganization or plan.
(e) Post at its facilities and Air Route Traffic Control Centers 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.
(f) 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., September 24, 1985
(s) HENRY B. FRAZIER III
(s) WILLIAM J. MCGINNIS JR.
/s/ WILLIAM J. MCGINNIS JR
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 Air Route Traffic Control Centers 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 and appropriate
arrangements for employees adversely affected thereby.
WE WILL NOT implement the 1980's Maintenance Plan for Airway
Facilities 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 plan
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
Statute.
WE WILL return to the practices which existed prior to our
implementing the reorganization of the Great Lakes Region Air Route
Traffic Control Centers on or about October 1, 1983.
WE WILL return to the practices which existed prior to our
implementing the 1980's Maintenance Plan for the Great Lakes Region
Airway Facilities on or about November 23, 1983.
WE WILL notify the Professional Airways Systems Specialists, the
employees' exclusive bargaining representative, of any intention to
reorganize Air Route Traffic Control Centers in the Great Lakes Region
or to implement a maintenance plan or program in Airways Facilities and
afford it an opportunity to request negotiations with respect to the
procedures which management will observe in implementing such
reorganization or plan 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 of the Air Route Traffic Control Centers in
the Great Lakes Region or maintenance plan or program in Airways
Facilities and appropriate arrangements for employees adversely affected
by the reorganization or plan.
(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 Nos. 5-CA-40069, 5-CA-40095
William A. Feldman and
Joseph L. Yokley
For the Respondent
Joseph E. Kolick, Jr., Esq. and
Laura A. Layman, Esq. on the brief
For the Charging Party
Sandra J. LeBold, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
These cases 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 unfair labor practice charges filed by Professional Airways
Systems Specialists, MEBA, AFL-CIO (herein referred to as PASS or the
Union) 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 in each case and thereafter consolidated the cases for
hearing. The Complaint in Case No. 5-CA-40069 alleges Respondent
violated the Statute when it failed and refused to bargain with PASS " .
. . concerning the impact and implementation of the reorganization of
the Air Route Traffic Control Centers in the Great Lakes Region, as well
as the procedures by which such changes would be effectuated." The
Complaint in Case No. 5-CA-40095 alleges Respondent violated the Statute
by failing and refusing to bargain with PASS " . . . concerning the
impact and implementation of (Respondent's) Great Lakes Region's
Maintenance Program Plan for the 80's, as well as the procedures by
which such changes would be effectuated." /2/
A hearing on the Complaints 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, conclusions of law and
recommendations:
A. Background
(1) Respondent's Great Lakes Region is comprised of various
facilities in Minnesota, Wisconsin, Illinois, Indiana, Michigan, Ohio
and North and South Dakota.
(2) On January 19, 1978 PASS was certified as the exclusive
representative of a unit of Respondent's employees assigned to the
Airway Facilities Sector, O'Hare Airport, Chicago, Illinois.
(3) On April 27, 1979, PASS was certified as the exclusive
representative of a unit of Respondent's employees assigned to the
Airway Facilities Sector, Minneapolis, Minnesota. Prior thereto, these
employees were represented by the American Federation of Government
Employees.
(4) On June 10, 1980, PASS was certified as the exclusive
representative of a unit of Respondent's employees assigned to the Air
Route Traffic Control Center, Farmington, Minnesota. Prior thereto,
these employees were represented by the American Federation of
Government Employees.
(5) On December 31, 1981, PASS was certified as the exclusive
representative of a nationwide unit of Respondent's employees,
including, but not limited to, Respondent's employees in the Great Lakes
Region, but excluding employees at O'Hare Airport, Minneapolis,
Minnesota, and Farmington, Minnesota (as described in paragraphs (2),
(3) and (4) above), and also excluding professional employees, employees
engaged in Federal personnel work in other than a purely clerical
capacity, management officials, guards and supervisors as defined in
Executive Order 11491. Prior to the Union's certification on December
31, 1981, these employees were represented by the Federal Aviation
Science and Technological Association/National Association of Government
Employees (FASTA).
(6) While FASTA was the employees' representative, it negotiated a
collective bargaining agreement with Respondent. Article 47 of that
agreement provided, inter alia:
"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 3. Prior to any proposed reorganization of the work
force, the Union will be consulted at the regional level."
Article 54 provided:
"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
Employers' 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."
(7) On April 14, 1983, PASS was certified as the exclusive
representative of a consolidated unit of Respondent's employees. This
consolidation included, inter alia, the O'Hare unit, the Minneapolis
unit, the Farmington unit and the nationwide unit that was certified on
December 31, 1981.
(8)(a) At all times since February 1982, PASS has taken the position
with FAA that PASS was not bound by any waivers of Statutory rights
contained in the FAA/FASTA collective bargaining agreement, supra, and
insisted upon its right to negotiate on working conditions to the extent
permitted by law.
(b) At all times since February 1982, FAA has taken the position with
PASS that the provisions of the FAA/FASTA agreement remain in effect
until an agreement with PASS to the contrary is reached.
(c) FAA and PASS had not reached agreement on the terms of a
collective bargaining agreement covering unit employees concerned herein
prior to the closing of this hearing.
(9) On May 16, 1983, PASS President Howard Johannssen notified
Respondent that he was the only PASS representative authorized to engage
in collective bargaining on behalf of the consolidated unit (paragraph
(7) above) and notice of any proposed changes in personnel policies,
practices or working conditions of unit employees, "including changes
that FAA contends are reserved to management", should be directed to
him. /3/
B. Reorganization of the Air Route Traffic Control Centers in the
Great Lakes Region, Case No. 5-CA-40069
(1) On August 2, 1983, Respondent informed Warren Zentz, Union
Regional Vice-President, of its plans to reorganize the Air Route
Traffic Control Centers (ARTCCs) of the Great Lakes Region (herein the
Reorganization). The Reorganization primarily took the form of
replacing the existing five crew watch schedules with seven crew watch
schedules. The Reorganization also involves the creation of a new group
called an Interfacility Unit comprised of Interfacility Electronic
Technicians to supplement scheduled watches.
(2) On August 8, 1983, Respondent sent Zentz a letter soliciting the
Union's comments regarding the impact and implementation of the ARTCC
Reorganization.
(3) By letters dated August 3, 1983, August 18, 1983, and August 25,
1983, the Union requested that Respondent bargain with it concerning the
impact and implementation of the Reorganization as well as the
procedures by which such changes would be effectuated.
(4) By letter dated September 28, 1983, Respondent informed the Union
that Respondent would not negotiate with the Union concerning the
Reorganization.
(5) On or about October 1, 1983, Respondent implemented the
Reorganization of the Air Route Traffic Control Centers in the Great
Lakes Region.
(6) Since October 1, 1983, seven crew watch schedules have replaced
five crew watch schedules at Respondent's Air Route Traffic Control
Centers at Chicago (Aurora), Illinois and Indianapolis, Indiana.
Eventually, the Farmington, Minnesota and Oberlin, Ohio Centers will
also change from the five crew watch schedule to the seven crew
schedule.
(7)(a) Documents prepared by Respondent (attached to the August 8,
1983, letter to Union Regional Vice-President Zentz noted in paragraph
(2) above) list the following "advantages" to be derived from the
reorganization:
"1. "Unit" components provide more and better lines of
responsibility and accountability.
"2. "Crew" components will for the most part direct their
efforts toward the so-called "fire fighting" aspects of systems
maintenance. This means more instances of individual exposure to
system problems.
"3. A "unit" assignment allows the individual a maximum
exposure to all aspects of systems maintenance processes. Live
troubleshooting, P.M.'s, in-depth troubleshooting, off-line and
system improvement/enhancement projects.
"4. Fewer midnight shifts.
"5. Saves premium pay costs for FAA.
"6. Fewer people needed on the rotating shift component
releasing some positions to really meaningful support functions
on-site."
(b) While apparently no permanent assignments have yet been made to
the Interfacility Unit, Respondent contemplates collective bargaining
unit employees transferring from their present jobs to this group in the
future.
(8) The seven crew watch differs from a five crew watch primarily in
that the seven crew watch would not contain more than one technician in
each specialty and the seven crew watch would contain less employees
than a five crew watch. Thus, under the seven crew fewer employees
handle the same workload as the five crew watch. Further, as testimony
concerning the watch change at the Aurora ARTCC reveals, with the seven
crew watch fewer employees now work on Saturdays, Sundays and holidays
thereby decreasing premium pay received by bargaining unit employees.
In addition, some employees experienced a change in work hours when the
seven crew system was implemented. Testimony reveals reduced premium
pay and a change of work schedules for seven crew watches at the
Farmington, Minnesota ARTCC is anticipated, according to a briefing the
Local Union President received from Respondent's representatives at the
Farmington facility. Further, Fred W. Bell, Respondent's Maintenance
Operations Branch Manager for the Airway Facilities Division,
acknowledged that an objective of the seven crew concept is to reduce
midnight and other shift work for which premium pay is required.
(9) Although providing PASS with an opportunity to consult with
regard to the implementation of the Reorganization, at no time did
Respondent provide PASS with an opportunity to negotiate on the
Reorganization.
C. The Great Lakes Region's 80's Maintenance Plan, Case No.
5-CA-40095
(1) The 1980's Maintenance Plan for the Great Lakes Region Airway
Facilities (the Plan herein) is a plan to assist Respondent to
effectively make the transition into a new maintenance concept that FAA
considers would be required to meet the demands of new equipment and
technological change. As FAA document entitled "Maintenance Program
Plan for the 1980's, Great Lakes Region Airway Facilities" sets forth
the various purposes and objectives of the Plan. Respondent considers
the document to be a "planning tool" concerning staffing requirements if
equipment is delivered as anticipated and employment attrition occurs as
expected. Testimony revealed the Plan will require repeated updating.
(2) The 80's Maintenance Plan suggests that as technology progresses,
the demand for particular skills will change, new skills will be
required and the physical relocation of skills will become necessary.
The Plan recognizes that "(t)he current concept of maintenance is
labor-intensive, inefficient and incompatible with the technology of new
facilities," envisions overall staff reductions through implementation
of the Plan and since " . . . projected attrition alone will not
accommodate the transition by FY 1984 or 1985 year end", reassignments
are anticipated. Additional training will be provided employees " . . .
as required to insure system continuity when modifications are
implemented" and for new equipment.
(3) The Plan outlines current staffing in each skill area in a sector
and planned staffing over the next several years. For example, the
specialty area "Navaids/Communications" had 329 employees throughout the
Great Lakes Region as of September 1, 1983. Thirty eight of these
employees were in the Dakota Sector and fifty one were in the Ohio
sector. By the end of fiscal year 1985, staffing is scheduled to be
reduced to a total of 269 "Navaids/Communications" specialists
throughout the Region, with the Dakota sector employing twenty seven and
the Ohio sector employing thirty four. Thus in three years, one skill
area is projected to lose 60 positions, with the Ohio Sector suffering a
33% staffing reduction. Although some specialty areas will receive
increased staffing, the Plan projects a net staffing reduction from 1416
employees to a level of 1312 employees. /4/
(4) The Plan was made available to unit employees. A "Planning
Guide" contained in the Plan instructs employees on how to interpret the
data presented in the Plan. Thus, according to Maintenance Operations
Branch Manager Bell, an employee can determine if future staffing
requirements adversely impact on that employee so that additional
training for potential vacancies could be sought or a transfer or
voluntary retirement might be considered.
(5) On October 14, 1983, PASS Regional Vice-Presidents Warren Zentz
and Bobby Mullins, were briefed by Respondent concerning the Great Lakes
Region's Maintenance Plan for the 1980s at which time the Union was
provided briefing summaries, a copy of the Plan and letters soliciting
written comments and suggestions on the impact and implementation of the
Plan.
(6)(a) By letter dated October 26, 1983, Zentz requested additional
time and information to provide input on the Plan.
(b) Respondent's reply informed Zentz that implementation of the Plan
would be delayed until November 25, 1983, and requested that Zentz
submit his written comments by November 16, 1983.
(7) By letters dated October 17, 1983, November 8, 1983 and November
21, 1983, the Union requested that Respondent bargain concerning the
impact and implementation of the Plan as well as the procedures by which
such changes would be effectuated.
(8) By letters dated November 1, 1983, November 3, 1983 and December
23, 1983, Respondent informed the Union that it would not negotiate with
the Union concerning the Plan.
(9) On or about November 25, 1983, Respondent implemented the Great
Lakes Region's Maintenance Program Plan for the 1980's.
(10) At the time of hearing attrition rates had been such that no
transfers or reassignments of unit employees had yet occurred.
Nevertheless, by the end of fiscal year 1985 changed circumstances could
require a change in some unit employees' career fields to meet agency
needs.
Discussion
As to both the Reorganization of the ARTCCs and the 80's Maintenance
Plan, Respondent contends that it was not obligated to negotiate with
the Union on matters of impact and implementation. Essentially
Respondent argues: (1) the FAA/FASTA agreement, supra, was binding on
FAA and PASS and under that agreement FAA was only obligated to consult
and not negotiate with PASS on the matters at issue; (2) FAA fulfilled
its obligation to consult and; (3) in any event, Respondent's actions
did not adversely affect unit employees nor would they foreseeably be
expected to result in a substantial impact on bargaining unit employees.
With regard to its contention that its bargaining relationship with
PASS was governed by the terms of the FAA/FASTA agreement, Respondent
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
three 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); Department of
Transportation, Federal Aviation Administration, Los Angeles,
California, 15 FLRA No. 21(1984) and Department of Transportation,
Federal Aviation Administration, San Diego, California, 15 FLRA No.
86(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, /5/ 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, Department of
Transportation, Los Angeles, and Department of Transportation, San
Diego, supra, I conclude that the waivers of bargaining rights set out
in Articles 47 and 54 of the FAA/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 the right to
negotiate, not merely consult, on the procedures and arrangements
concerning the implementation of the Reorganization of the Air Route
Traffic Control Centers in the Great Lakes Region and the Great Lakes
Region's 80's Maintenance Plan.
Turning now to Respondent's argument that no adverse affect or
substantial impact on unit employees resulted from its conduct, I
conclude the record does not support Respondent's contention regarding
either the Reorganization or the 80's Maintenance Plan. Respondent's
own documents (paragraph B(7) above) reveal the Reorganization
anticipates a change in emphasis on job tasks performed by crews, fewer
midnight shift assignments, a reduction of premium pay and fewer
employees on rotating shifts "releasing some positions to really
meaningful support functions on site." Further, the evidence discloses
that with the change to the seven crew watch fewer employees handle the
same workload, and changes in work hours and decreases in premium pay
have already been experienced by some employees.
Similarly with regard to the 80's Maintenance Plan, Respondent's own
documents, namely the Plan itself, foresee reassignments occasioned by
the requirements for less staff and training current employees to meet
the demands of new advanced equipment and technological improvements on
existing equipment. In order to be retained, some employees may be
required to change career fields. Indeed, employees are encouraged to
look to the projections set forth in the Plan in order to make value
judgments on transfers, voluntary retirement or the need for additional
specialized training.
In its recent decision in Department of Health and Human Services,
Social Security Administration, Chicago Region, 15 FLRA No. 174(1984),
the Authority, citing its prior holding in U.S. Government Printing
Office, 13 FLRA No. 39(1983), clearly indicated that the "substantial
impact" test in cases giving rise to a bargaining obligation under
section 7106(b)(2) and (3) of the Statute, was rejected. Rather, the
duty to bargain in such a situation arises where the resultant or
reasonably foreseeable impact of the change in the working conditions of
bargaining unit employees is more than de minimis. /6/ Thus, to require
bargaining, the impact of the Reorganization and the 80's Maintenance
Plan need not be immediate but only foreseeable, as long as such impact
would be more than de minimis.
In the circumstances herein I find and conclude that the
implementation of the Reorganization and the 80's Maintenance Plan
constituted changes in working conditions which resulted in a more than
de minimis foreseeable impact on unit employees. In view of the entire
foregoing, I conclude that Respondent, by its refusal to negotiate with
the Union on the procedures and arrangements concerning the
implementation of the Reorganization and the 80's Maintenance Plan for
the Great Lakes Region, violated section 7116(a)(1) and (5) of the
Statute.
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. In Federal Correctional Institution, 8 FLRA 604(1982), the
Authority set forth various criteria to be considered when deciding
matters involving imposing a status quo ante remedy. In that case 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."
Applying the above criteria to the case herein:
(1) While Respondent gave timely notice of both the Reorganization
and the 80's Maintenance Plan to a Union official, in neither case did
Respondent give notice to Union President Johannssen, the only Union
official designated to receive notice of contemplated changes in working
conditions. See Department of Health and Human Services, Social
Security Administration, Field Assessment Office, Atlanta, Georgia, 11
FLRA No. 78(1983).
(2) Respondent's lack of notice to Johannssen precluded a demand for
negotiations by Johannssen and, in any event, it is clear from the
record herein that such a demand would have been futile.
(3) Respondent's conduct was certainly deliberate. However,
Respondent avers that its conduct was not willful basically because it
was relying on the FAA/FASTA agreement and its interpretation of Nuclear
Regulatory Commission, supra, it consistently maintained it was at most
only obligated to consult with the Union on the Reorganization and 80's
Maintenance Plan, and such conduct was without animus. However, in the
case herein the previous FASTA collective bargaining unit was
consolidated with other units on two separate occasions prior to the
implementation of the Reorganization and the 80's Maintenance Plan. The
Authority has held that a certification on consolidation creates a new
bargaining obligation that supersedes any contractual arrangements
previously existing in the formerly separate units. See Social Security
Administration, 11 FLRA No. 76(1983) and Department of Health and Human
Services, Social Security Administration, 6 FLRA 202(1981). Accordingly
I find Respondent's conduct in failing to negotiate with the Union as
found herein was willful.
(4) I further find that the implementation of the Reorganization as
described herein significantly impacted upon bargaining unit employees
at those locations where seven crew watches were put into effect. Cf.
Internal Revenue Service (District, Region, National Office Unit), 13
FLRA No. 61(1983). Under the seven crew concept fewer employees handle
the same workload as a five crew watch; there has been some loss of
premium pay; and some change in work hours has been experienced.
As to the 80's Maintenance Plan however, the evidence in my view does
not indicate that the Plan thus far resulted in any significant impact
on unit employees.
(5) Turning now to the question of whether a return to the status quo
ante would disrupt or impair the efficiency and effectiveness of the
agency's operations, with regard to the Reorganization Respondent in its
brief, states:
"It would cause the FAA substantial disruption should it be
ordered to reestablish the five-crew concept, rearrange equipment
maintenance schedules, assigning equipment responsibilities from
the Inter-facility Unit to the crews, realigning the supervisory
staff and other administrative changes that would require extra
man hours to complete. It may indeed serve as an adverse impact
on those bargaining unit employees who have adjusted, and others
who have benefited from the reorganization should a status quo
ante remedy be imposed on the agency in this matter."
In my view the disruption described by Respondent is minimal. Any
change in working conditions back to pre-change conditions is going to
involve some dislocation and expense. When considering that disruption
to Respondent's operation is a defense to providing a full remedy for
unfair labor practice conduct, it would appear that something more
substantial than the disruption of Respondent's operations suggested
herein would be required. Compare Department of the Treasury, Internal
Revenue Service, Jacksonville District, Jacksonville, Florida, 15 FLRA
No. 187(1984).
As to the 80's Maintenance Plan, Respondent in its brief
acknowledges: "Since there has been no significant adverse impact on
bargaining unit employees and because there is none forseeable (sic) a
return to status quo would have no affect on the agency's operations".
Thus any reversion to the status quo ante would apparently produce at
most minor disruption or adverse consequences to the efficiency and
effectiveness of Respondent's operations.
Essentially, the test of whether or not to grant a status quo ante
remedy involves balancing the equities. Internal Revenue Service,
Chicago, Illinois, 9 FLRA 648 at 651(1982). Based upon my evaluation of
the facts presented herein I will recommend a return to the status quo
ante as part of the remedy herein.
The Union requests that any status quo ante order should specifically
provide that any employees who were laid off or resigned in lieu of
transfer be rehired with full back pay. The record does not disclose
that any such employees exist and accordingly, I will not recommend
adoption of this suggested remedial language.
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 Air Route Traffic Control Centers 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 and appropriate
arrangements for employees adversely affected thereby.
(b) Implementing 1980's Maintenance Plans for Airway Facilities
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 plans and appropriate
arrangements for employees adversely affected thereby.
(c) 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) Return to the practices which existed prior to implementing
the reorganization of the Great Lakes Region Air Route Traffic
Control Centers on or about October 1, 1983.
(b) Return to the practice which existed prior to implementing
the 1980's Maintenance Program Plan for the Great Lakes Region
Airway Facilities on or about November 23, 1983.
(c) Make whole any adversely affected employee for any loss of
premium pay suffered as a result of the reorganization of the
Great Lakes Region Air Route Traffic Control Centers.
(d) Notify the Professional Airways Systems Specialists, the
employees' exclusive bargaining representative, of any intention
to reorganize Air Route Traffic Control Centers or implement a
maintenance plan or program in Airways Facilities and afford it an
opportunity to negotiate with respect to the procedures which
management will observe in implementing such reorganization or
plan and appropriate arrangements for employees adversely
affected.
(e) 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 of Air Route Traffic
Control Centers or maintenance plans or programs in Airways
Facilities and appropriate arrangements for employees adversely
affected by the reorganization or plan.
(f) 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.
(g) 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.
(s) SALVATORE J. ARRIGO
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: September 28, 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 LABOR-MANAGEMENT
RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT reorganize Air Route Traffic Control Centers 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 and appropriate arrangements for
employees adversely affected thereby.
WE WILL NOT implement 1980's Maintenance Plans for Airway Facilities
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 plans 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
Statute.
WE WILL return to the practices which existed prior to implementing
the reorganization of the Great Lakes Region Air Route Traffic Control
Centers on or about October 1, 1983.
WE WILL return to the practice which existed prior to implementing
the 1980's Maintenance Program Plan for the Great Lakes Region Airway
Facilities on or about November 23, 1983.
WE WILL make whole any adversely affected employee for any loss of
premium pay suffered as a result of the reorganization of the Great
Lakes Region Air Route Traffic Control Centers.
WE WILL notify the Professional Airways Systems Specialists, the
employees' exclusive bargaining representative, of any intention to
reorganize Air Route Traffic Control Centers or implement a maintenance
plan or program in Airways Facilities and afford it an opportunity to
negotiate with respect to the procedures which management will observe
in implementing such reorganization or plan 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 of Air Route Traffic Control Centers or
maintenance plans or programs in Airways Facilities and appropriate
arrangements for employees adversely affected by the reorganization or
plan.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region V,
whose address is: 175 West Jackson Boulevard, Suite 1359-A, Chicago,
Illinois 60604 and whose telephone number is: (312) 353-6306.
--------------- FOOTNOTES$ ---------------
/1/ The Judge also recommended that the Respondent make whole any
adversely affected employee for any loss of premium pay suffered as a
result of the reorganization of the Great Lakes Region Air Route Control
Centers. The Authority finds such remedy is inappropriate in the
Centers. The Authority finds such remedy is inappropriate in the
circumstances of this case. In this regard, the Authority has
previously held that in order for a backpay order to be authorized under
the Back Pay Act, 5 U.S.C. 5596, there must be a determination that not
only has an employee been adversely affected by an unjustified or
unwarranted personnel action, but also that but for the improper action
such employee would not have suffered a loss or reduction in pay,
allowances, or differentials. Federal Aviation Administration,
Northwest Mountain Region, Seattle, Washington and Federal Aviation
Administration, Washington, D.C., 14 FLRA 644(1984). In the instant
case, the Authority, noting that the Judge recommended the make whole
remedy without applying such a test and the lack of evidence in the
record to support such a finding, finds that a make whole remedy is
unwarranted. See United States Department of Agriculture, Plant
Protection and Quarantine, Animal and Plant Health Inspection Service,
17 FLRA No. 40(1985).
/2/ While section 7106 of the Statute sets forth various rights
concerning management's bargaining obligations, under section 7106(b) of
the Statute management is obligated to bargain on "(2) procedures which
management officials of the agency will observe in exercising any
authority under this section; or (3) appropriate arrangements for
employees adversely affected by the exercise of any authority under this
section by such management officials."
/3/ On February 2, 1982, upon the certification of PASS as exclusive
representative for the nationwide unit (paragraph (5) above), Johannssen
advised Respondent that with regard to the following matters, notice of
proposed changes should be sent to him since he was the only PASS
representative authorized to negotiate for the union: 1. The closing;
consolidation or relation of FAA facilities; 2. Reductions in force or
furlough of employees; 3. Any reorganization of the FAA or its
subdivisions; 4. All matters related to the training of employees; 5.
Technological changes affecting employees; and 6. All other proposed
changes initiated or being implemented above the FAA regional level.
/4/ The reduction would affect approximately 50 bargaining unit
positions.
/5/ "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.
/6/ Although the Authority expressed this test in the negative, i.e.
no duty to bargain arises where the impact or reasonably foreseeable
impact is no more that de minimis, I assume the corollary of the
statement is true.