U.S. Department of Transportation, Federal Aviation Administration, International Airport, Brownsville, Texas (Respondent) and Professional Air Traffic Controllers Organization (Charging Party) 

 



[ v05 p565 ]
05:0565(72)CA
The decision of the Authority follows:


 5 FLRA No. 72
 
 U.S. DEPARTMENT OF TRANSPORTATION
 FEDERAL AVIATION ADMINISTRATION
 INTERNATIONAL AIRPORT
 BROWNSVILLE, TEXAS
 Respondent
 
 and
 
 PROFESSIONAL AIR TRAFFIC CONTROLLERS
 ORGANIZATION
 Charging Party
 
                                            Case No. 6-CA-378
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
 ABOVE-ENTITLED PROCEEDING CONCLUDING THAT THE UNFAIR LABOR PRACTICE
 COMPLAINT, RELATING TO THE RESPONDENT'S ALLEGED VIOLATION OF SECTION
 7116(A)(1) AND (5) OF THE STATUTE, BE DISMISSED IN ITS ENTIRETY.
 THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS WITH RESPECT TO THE
 ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY HAS REVIEWED THE
 RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
 THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S DECISION
 AND ORDER, AND THE ENTIRE RECORD IN THE CASE, INCLUDING THE GENERAL
 COUNSEL'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
 JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-378 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., APRIL 30, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
    
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    JAMES W. DEMIK, ESQUIRE
                FOR THE GENERAL COUNSEL
 
    ROY G. VICK, ESQUIRE
                FOR THE RESPONDENT
 
    BEFORE:  WILLIAM B. DEVANEY
                ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING 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 /2/ , AND THE FINAL RULES AND REGULATIONS ISSUED
 THEREUNDER, 5 C.F.R. CHAPTER XIV, FED. REG., VOL. 45, NO. 12, JANUARY
 17, 1980.
 
    THE ISSUE IN THIS CASE IS WHETHER RESPONDENT VIOLATED SEC. 16(A)(5)
 AND, DERIVATIVELY OF 16(A)(1), BY UNILATERALLY ALTERING AN AGREED UPON
 "WATCH" SCHEDULE WITHOUT NOTICE TO THE UNION AND WITHOUT BARGAINING.
 
    A CHARGE WAS FILED ON DECEMBER 28, 1979;  THE COMPLAINT AND NOTICE OF
 HEARING ISSUED ON FEBRUARY 29, 1980;  AND PURSUANT THERETO A HEARING WAS
 DULY HELD BEFORE THE UNDERSIGNED ON MAY 13, 1980, IN BROWNSVILLE, TEXAS.
  ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED FULL OPPORTUNITY
 TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE
 EVIDENCE BEARING ON THE ISSUE INVOLVED.  AT THE CLOSE OF THE HEARING,
 JUNE 13, 1980, WAS FIXED AS THE DATE FOR MAILING POST-HEARING BRIEFS AND
 EACH PARTY TIMELY MAILED A BRIEF, RECEIVED ON OR BEFORE JUNE 19, 1980,
 WHICH HAVE BEEN CAREFULLY CONSIDERED.  UPON THE BASIS OF THE ENTIRE
 RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I
 MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
 
                                 FINDINGS
 
    1.  THE WATCH SCHEDULES IN QUESTION ARE G.C. EXHIBIT 4 (A-1 COVERS
 PAYROLL PERIODS 22 AND 23, 1979 (ROUGHLY OCTOBER);  A COVERS PAYROLL
 PERIODS 24 AND 25, 1979 (ROUGHLY NOVEMBER);  B COVERS PAYROLL PERIODS
 26, 1979 AND 1, 1980 (ROUGHLY DECEMBER);  AND C COVERS PAYROLL PERIODS 2
 AND 3, 1980 (ROUGHLY JANUARY, 1980)).
 
    2.  G.C. EXHIBIT 5 IS NOT AN INDEPENDENT EXHIBIT BUT, RATHER,
 EXCERPTS CERTAIN MATERIAL FROM GENERAL COUNSEL EXHIBIT 4 AND IN
 PARTICULAR G.C. EXHS. 4-A, 4-B AND 4-C.  BECAUSE THERE ARE ERRORS IN
 DESIGNATION, ALL REFERENCES HEREIN WILL BE TO THE ORIGINAL WATCH
 SCHEDULES, G.C. EXH. 4 (A-1 (OCTOBER, 1979);  A (NOVEMBER, 1979);  B
 (DECEMBER, 1979) AND C (JANUARY, 1980).
 
    3.  IN SEPTEMBER, 1979, MR. LACHANCE, THEN PRESIDENT AND
 REPRESENTATIVE OF PATCO, AND MS. PRICE, BARGAINING UNIT MEMBER, MET, AT
 THEIR REQUEST, WITH MR. ANDERSON, FACILITY CHIEF, FOR THE PURPOSE OF
 PUTTING TRAINEES ON THE SCHEDULE WITH THEIR OJT (ON THE JOB TRAINING)
 INSTRUCTORS AND TO COVER WEAK SPOTS IN THE SCHEDULE.
 
    4.  THERE IS NO DISPUTE THAT:  1) MR. ANDERSON READILY AGREED TO PUT
 TRAINEES ON THE SCHEDULE WITH THEIR OJT INSTRUCTORS AND THAT THIS WAS
 DONE;  AND B) THE PARTIES DISCUSSED A PROPOSED WATCH SCHEDULE "LINE BY
 LINE" AND THAT THE OCTOBER SCHEDULE (G.C. EXH 4 A-1) WAS THE PRODUCT OF
 THEIR DISCUSSION.  THERE IS NO DISAGREEMENT THAT THE WATCH SCHEDULE FOR
 NOVEMBER (G.C. EXH 4-A) WAS, AS MATERIAL, THE SAME AS THE WATCH SCHEDULE
 FOR OCTOBER EXCEPT, OF COURSE, FOR ROTATION OF CONTROLLERS WHICH IS NOT
 IN ISSUE.
 
    5.  SINCE AUGUST, 1977, THE BROWNSVILLE TOWER HAS BEEN OPERATED 16
 HOURS PER DAY (7:00 A.M. TO 11:00 P.M.), SEVEN DAYS PER WEEK.  THE
 NUMBERS ON THE WATCH SCHEDULES ARE STARTING TIMES, NOT HOURS WORKED,
 E.G. "15" MEANS 1500, OR 3:00 P.M.; 8 MEANS 0800, OR 8:00 A.M., ETC.
 THE PARTIES AGREED THAT SEVEN LINES, OR POSITIONS, WERE REQUIRED FOR
 ADEQUATE COVERAGE.  EACH LINE, OR POSITION, CONSTITUTED THE WORK
 SCHEDULE FOR A CONTROLLER, WITH STARTING TIMES DAILY AND SCHEDULED DAYS
 OFF.  EACH WATCH SCHEDULE COVERED TWO PAYROLL PERIODS, ROUGHLY A MONTH;
 AND EACH CONTROLLER ROTATED FROM THE BOTTOM LINE, OR POSITION, UPWARD,
 WITH LINE ONE GOING TO THE BOTTOM.  WITH THE LOSS OF JOURNEYMEN
 CONTROLLERS, PRIOR TO SEPTEMBER, 1979, RESPONDENT HAD ONLY FIVE
 JOURNEYMEN CONTROLLERS FOR SEVEN LINES, OR POSITIONS, AND HAD SCHEDULED
 TWO DEVELOPMENTAL TRAINEES, I.E., CONTROLLERS FULLY QUALIFIED IN SOME
 BUT NOT ALL CONTROL POSITIONS, TO LINES OR POSITIONS.  AS NOTED, PATCO
 OBJECTED TO THIS PROCEDURE AND AT THE SEPTEMBER, 1979, MEETING
 RESPONDENT AGREED TO PUT TRAINEES ON THE SCHEDULE WITH THEIR OJT
 INSTRUCTORS.  DEVELOPMENTAL TRAINEES WERE PLACED ON THE SAME LINE OR
 POSITION, AS THEIR OJT INSTRUCTOR, ARE NOT FURTHER CONSIDERED HEREIN.
 
    6.  MR. LACHANCE TESTIFIED THAT "WE WORKED OUT THE SCHEDULE (G.C.
 EXH. 4 A-1) LINE BY LINE . . . THE FIRST LINE . . . WITH DAYS OFF BEING
 SUNDAY AND MONDAY" (TR.  91);  " . . . THE SECOND LINE . . . WITH DAYS
 OFF BEING MONDAY AND TUESDAY (TR. 91);  " . . . LINE 3 . . . WITH DAYS
 OFF BEING TUESDAY AND WEDNESDAY" (TR. 91);  "WE AGREED THAT LINE 4 WAS
 BLANK" (TR. 92);  "LINE 5 . . . WITH DAYS OFF BEING THURSDAY AND FRIDAY"
 (TR. 92);  "AND LINE 7 WAS HELD BY MR.  ANDERSON BUT IT MORE OR LESS WAS
 FILLED IN AT HIS DISCRETION TO FILL IN THE HOLES IN THE SCHEDULE.  THE
 HOLES BEING THE WEAK SPOTS IN THE SCHEDULE." (TR. 92).  MR. LACHANCE
 FURTHER TESTIFIED THAT "ABSENCES . . . COULD BE FILLED AS PER THE
 CONTRACT, 21 DAYS IN ADVANCE.  ON A RANDOM AND INFREQUENT BASIS FOR A
 SPECIFIC PURPOSE AND HAD TO BE BOXED WITH SQUARE BOXES." (TR. 92).
 
    7.  MS. PRICE TESTIFIED, IN PART, AS FOLLOWS:
 
    "A.  WE DISCUSSED THE PROPOSED WATCH SCHEDULE LINE BY LINE, YES.
 
    "Q.  OKAY.
 
    HOW MANY LINES DID YOU PROVIDE FOR?
 
    "A. WE NEED SEVEN LINES.
 
    "Q.  OKAY.
 
    "A.  TO PROVIDE COVERAGE.  AND THERE'S SEVEN LINES AND WE SENT
 THROUGH IT LINE BY LINE, EACH LINE WITH ITS OWN CHARACTERISTICS.
 
    "Q.  DID YOU HAVE SEVEN QUALIFIED EMPLOYEES TO PUT ON THE LINES?
 
    "A.  WE DIDN'T.
 
    "Q.  YOU'RE SAYING, THEN, THAT FOR THE DURATION OF THIS DISCUSSION
 THAT IT RESULTED IN A SEVEN-LINE SCHEDULE.
 
    IS THAT CORRECT?
 
    "A.  WE NEEDED A SEVEN-LINE SCHEDULE TO PROVIDE COVERAGE.
 
    "Q.  OKAY.
 
    WHAT HAPPENS IF YOU HAVE ONLY FIVE PEOPLE QUALIFIED TO MAN THOSE
 PARTICULAR POSITIONS WITHIN THE TOWER?
 
    "A.  ADJUSTMENTS HAVE TO BE MADE.
 
    "Q.  OKAY.
 
    WHAT WERE THE PROVISIONS MADE FOR THE ADJUSTMENT OF COVERAGE ON THAT?
 
    "A.  INSTEAD OF EVERYONE WORKING THE SAME SCHEDULE, IN OTHER WORDS,
 EVERYONE HAVING THE SAME SHIFT AND CONTINUING EVEN ROTATION, DIFFERENT
 SHIFTS WERE AGREED ON FOR EACH LINE AND A SPECIFIC DAY OF THE WEEK.
 EVEN ROTATION UPWARDS.  (TR. 109-110)
 
    "A.  . . . LINE 4 IS LEFT BLANK.  WE SKIPPED LINE 4 CONSISTENTLY.
 
    "Q.  SO YOU'RE TALKING ABOUT SIX LINE SCHEDULES WITH ONE OF THE
 INTERMEDIATE LINES LEFT BLANK?
 
    "A.  NO, IT WAS STILL A SEVEN LINE SCHEDULE." (TR. 111).
 
   *          *          *          *
 
 
    JUDGE DEVANEY:  IF I CAN COUNT RIGHT THAT COMES OUT TO BE SIX RATHER
 THAN SEVEN.
 
    THE WITNESS:  BUT IT . . . THE WAY I SEE IT IS THAT SIX OUT OF THE
 SEVEN LINES ARE FILLED.
 
    JUDGE DEVANEY:  PARDON?
 
    THE WITNESS:  THE SEVENTH LINE IS BLANK.
 
    JUDGE DEVANEY:  THAT'S RIGHT.
 
    THE WITNESS:  AND THE PEOPLE AROUND THAT HAVE TO PICK UP THE SLACK IN
 THAT LINE.  THAT'S WHERE THE ADJUSTMENT COMES IN." (TR. 113)
 
    8.  MR. ANDERSON TESTIFIED, IN PART, AS FOLLOWS:
 
    "THE WITNESS:  WE AGREED, I AGREED WITH THEIR PRESENTATION AS TO THE
 FIVE-LINE COVERAGE AND THE DEVELOPMENTALS AND WE AGREED THAT THE BASIC
 WATCH SCHEDULE HOURS WOULD BE 15 (3:00 P.M.) 8:00 AND 7:00 AND THAT WE
 WOULD KEEP AS CLOSE TO A 15, 15, 8:00, 7:00, 7:00 LINE AS STAFFING WOULD
 PERMIT, AND THAT THE FIVE LINES, THE FIVE LINES THAT HAVE NAMES ON THEM,
 WOULD BE USED TO THE SEVEN-LINE SCHEDULE TO GIVE US THE BEST COVERAGE .
 . . " (TR. 130).
 
    " . . . A FULL SCHEDULE TO GIVE ADEQUATE COVERAGE THROUGHOUT FOR TWO
 SHIFTS PER DAY WOULD GIVE US A SEVEN-LINE SCHEDULE.  (TR. 130-131)
 
    "THE WITNESS:  WITH THE PROPOSAL OF PUTTING THE DEVELOPMENTALS BACK
 ON THE SCHEDULE FROM THE PREVIOUS SCHEDULE WHERE WE HAD HAD TWO OF THE
 DEVELOPMENTALS ASSIGNED TO A LINE AND HAD A FULL SEVEN LINE SCHEDULE . .
 .
 
    "JUDGE DEVANEY:  ALL RIGHT.
 
    "NOW, ON THE ASSUMPTION THAT YOU ENDED UP WITH SIX POSITIONS
 INCLUDING YOURSELF.
 
    "THE WITNESS:  RIGHT.
 
    "JUDGE DEVANEY:  THE SIX POSITIONS ON THE SCHEDULE FOR OCTOBER AND
 NOVEMBER AND FOR NOVEMBER AND DECEMBER, HOW DID YOU COVER THE SEVENTH
 DAY, THE SEVENTH POSITION, IN OTHER WORDS?
 
    "THE WITNESS:  THE SEVENTH DAY WOULD BE BY ADJUSTING THE PATTERN FOR
 A WEEK OR FIVE DAYS OF COVERAGE WHICH 15, 15, 8:00, 7:00 AND 7:00 WAS
 THE DESIRABLE WEEKLY COVERAGE FOR A FIVE-DAY SHIFT.
 
    "BUT TO COVER ADEQUATELY FOR STAFFING THEN SOME ADJUSTMENTS WOULD
 HAVE TO BE MADE.: (TR. 131-132).
 
   *          *          *          *
 
 
    "Q.  NOW, NUMBER 3 HE'S (SUPERVISOR HATCHETT) NOT IN THE SLOT-- IN C
 HE'S NOT IN SLOT NUMBER 4 AT THAT TIME.
 
    "A.  HE'S NOT ON NUMBER 4.  HE'S MOVED UP TO SLOT NUMBER 3.  AND THE
 LINE CHANGES.
 
    "AGAIN, I REFER BACK TO MY UNDERSTANDING OF THE CONSULTATION ON THE
 SEPTEMBER DATE THAT THERE WOULD BE A REQUIREMENT, AT THAT TIME THERE
 WOULD BE A REQUIREMENT FOR A LINE CHANGE TO PROVIDE THE MOST COVERAGE.
 (TR. 150)
 
   *          *          *          *
 
 
    "A.  THE ROTATION ON THE SCHEDULE CHANGES.  WITH HIM (HATCHETT) BEING
 ON LINE 3 WOULD HAVE NO EFFECT.  THEY MERELY ADVANCED UPWARD ONE LINE AS
 THEIR CURRENT SCHEDULE CALLS FOR.
 
    "IN OTHER WORDS, EACH INDIVIDUAL MOVES UP IN THE ROTATION ON THE
 SCHEDULE.
 
    "SO THERE WAS NO ONE THAT WAS CHANGED IN HIS ROTATION FROM THE EFFORT
 MOVEMENT ON ONE SCHEDULE TO THE NEXT." (TR. 152-153).
 
    9.  ARTICLE 33 OF THE PARTIES' AGREEMENT (G.C. EXH. 2, P. 58)
 PROVIDES, IN PART, AS FOLLOWS:
 
    "SECTION 1.  . . . ASSIGNMENTS OF INDIVIDUAL EMPLOYEES TO INDIVIDUAL
 EMPLOYEES TO THE WATCH
 
    SCHEDULE ARE NOT CONSIDERED AS CHANGES IN THE BASIC WATCH SCHEDULE.
 THE BASIC WATCH SCHEDULE
 
    WILL NOT BE CHANGED WITHOUT PRIOR CONSULTATION WITH THE UNION .  . .
 "
 
    "SECTION 2. ASSIGNMENTS TO THE WATCH SCHEDULE SHALL BE POSTED AT
 LEAST 21 DAYS IN ADVANCE
 
    . . . ."
 
    10.  EACH WATCH SCHEDULE (G.C. EXHS. 4 A, 4 B AND 4 C) WAS, AS A
 MATTER OF COURTESY, DELIVERED BY MR. ANDERSON TO THE PATCO
 REPRESENTATIVE TO LOOK OVER BEFORE IT WAS POSTED, NOT LESS THAN 21 DAYS
 IN ADVANCE AS REQUIRED BY ART. 33, SEC. 2;  MR. ANDERSON TESTIFIED THAT
 MR. MCGILLICUDDY, WHO HAD BEEN THE ALTERNATE TO MR. LACHANCE AND WHO
 SUCCEEDED MR. LACHANCE AS REPRESENTATIVE FOR LOCAL 459 ON OCTOBER 24,
 1979 (RES. EXHS. 1 AND 2), WHEN SHOWN G.C. EXH. 4 B, COMMENTED, "THERE'S
 NOTHING WRONG WITH THIS SCHEDULE, I'VE GOT SATURDAY AND SUNDAY OFF . . .
 I'VE BEEN WAITING FOR TWO YEARS FOR SATURDAY AND SUNDAY OFF SO I CAN GO
 PARACHUTING WITH MY BUDDIES" (TR.  142).  MR. LACHANCE TESTIFIED THAT HE
 WAS PRESENT WHEN G.C. EXH. 4 C WAS PUT ON THE CONSOLE BETWEEN MR.
 MCGILLICUDDY AND MS. PRICE;  THAT HE LOOKED AT IT AND NOTICED THAT IT
 WAS DIFFERENT FROM THE PREVIOUS SCHEDULE BUT MADE NO COMMENT TO MR.
 ANDERSON.  MR. MCGILLICUDDY TESTIFIED THAT HE HAD AN OPPORTUNITY TO LOOK
 AT G.C. EXH 4 B AND 4 C BEFORE THEY WERE POSTED AND AS TO G.C. EXH. 4 B
 TOLD MR. ANDERSON THAT HE WOULD NEED TIME TO STUDY IT.
 
    11.  CONSULTATIONS, ONE ABOUT MARCH, 1980, AND ANOTHER ABOUT THE
 FIRST OF MAY, 1980, RESULTED IN "COMPLETELY DIFFERENT" WATCH SCHEDULES
 (TR. 162-163).
 
                                CONCLUSIONS
 
    THERE IS NO DISPUTE THAT PATCO REPRESENTATIVES, LACHANCE AND PRICE,
 MET WITH RESPONDENT'S FACILITY CHIEF, MR. ANDERSON, IN SEPTEMBER, 1979,
 AT PATCO'S REQUEST, TO DISCUSS THE SCHEDULING OF DEVELOPMENTAL TRAINEES;
  THAT RESPONDENT AGREED TO PATCO'S DEMAND THAT TRAINEES BE PUT ON THE
 SCHEDULE WITH THEIR OJT INSTRUCTORS;  AND THAT A WATCH SCHEDULE WAS
 AGREED TO FOR OCTOBER, 1979 (G.C. EXH. 4 A-1).  THERE IS ALSO NO DISPUTE
 THAT THE PARTIES AGREED FURTHER ON FUTURE SCHEDULING;  HOWEVER, THERE IS
 A DISPUTE AS TO PRECISELY WHAT WAS AGREED TO AS TO FUTURE SCHEDULING.
 
    THE OVERWHELMING WEIGHT OF THE EVIDENCE AND TESTIMONY SHOWS THAT IN
 SEPTEMBER, 1979, THE PARTIES AGREED:  A) THAT THERE SHOULD BE A SEVEN
 LINE, OR POSITION, SCHEDULE;  B) THAT 15 (1500 OR 3 P.M.), 8 (0800 OR
 8:00 A.M.) AND 7 (0700 OR 7:00 A.M.) WOULD BE THE STARTING TIMES FOR
 EACH SHIFT;  AND C) THAT, WITH AVAILABLE STAFFING, THEY WOULD KEEP AS
 CLOSE TO 15 - 15 - 8 - 7 - 7 AS POSSIBLE.
 
    FROM THE RECORD, DESPITE THE AMBIGUITY OF MESSRS. ANDERSON AND
 LACHANCE AND MS. PRICE IN DESCRIBING IN FULL THE SEVEN LINES, OR
 POSITIONS, IT IS CLEAR THAT THE SEVEN LINES, OR POSITIONS, PROVIDED FOR
 SCHEDULED DAYS OFF AS FOLLOWS:
 
    LINE (POSITION) 1 SUN-MON
 
    LINE (POSITION) 2 MON-TUE
 
    LINE (POSITION) 3 TUE-WED
 
    LINE (POSITION) 4 WED-THUR
 
    LINE (POSITION) 5 THUR-FRI
 
    LINE (POSITION) 6 FRI-SAT
 
    LINE (POSITION) 7 SAT-SUN
 
    THERE HAD BEEN SEVEN LINES, OR POSITIONS, PRIOR TO THE SEPTEMBER
 MEETING FILLED BY THE FIVE JOURNEYMEN CONTROLLERS AND TWO TRAINEES.
 WITH THE AGREEMENT THAT TRAINEES BE PUT ON THE SCHEDULE WITH THEIR OJT
 INSTRUCTORS, THERE WERE ONLY FIVE JOURNEYMEN CONTROLLERS AVAILABLE TO
 FILL THE SEVEN LINES, OR POSITIONS.  ON THE OCTOBER SCHEDULE (G.C. EXH.
 4 A-1), THE FIVE JOURNEYMEN CONTROLLERS WERE ASSIGNED TO LINES, OR
 POSITIONS, 1, 2, 3, 5 AND 6;  MR. ANDERSON FILLED LINE, OR POSITION 7;
 AND LINE, OR POSITION, 4 WAS BLANK.  ON THE NOVEMBER SCHEDULE (G.C. EXH.
 4 A) THE FIVE JOURNEYMEN CONTROLLERS WERE AGAIN ASSIGNED TO LINES 1, 2,
 3, 5 AND 6;  MR.  HATCHETT (A SUPERVISOR) TO LINE 7;  LINE 4 WAS, AGAIN
 BLANK;  BUT THE JOURNEYMEN CONTROLLERS HAD ROTATED (E.G., ROSE HAD
 ROTATED FROM LINE 1 TO LINE 6, MCGILLICUDDY FROM LINE 2 TO LINE 1;
 LACHANCE FROM LINE 5 TO LINE 3;  CLARK FROM LINE 6 TO LINE 5;  AND ROSE
 FROM LINE 1 TO LINE 6).
 
    ON THE DECEMBER SCHEDULE (G.C. EXH 4 B) THE FIVE JOURNEYMEN
 CONTROLLERS WERE ASSIGNED TO LINES 1, 2, 3, 5, AND 7;  LINE 6 WAS BLANK;
  HATCHETT WAS ASSIGNED TO LINE 4;  AND THE JOURNEYMEN CONTROLLERS AGAIN
 ROTATED (E.G. PRICE HAD ROTATED FROM LINE 2 TO LINE 1;  LACHANCE FROM
 LINE 3 TO LINE 2;  CLARK FROM LINE 5 TO LINE 3;  ROSE FROM LINE 6 TO
 LINE 5;  AND MCGILLICUDDY FROM LINE 1 TO LINE 7).
 
    ON JANUARY SCHEDULE (G.C. EXH. 4 C) THE FIVE JOURNEYMEN CONTROLLERS
 WERE ASSIGNED TO LINES 1, 2, 4, 6 AND 7;  LINE 5 WAS BLANK;  HATCHETT
 WAS ASSIGNED TO LINE 3;  AND THE JOURNEYMEN CONTROLLERS AGAIN ROTATED
 (E.G. LACHANCE FROM LINE 2 TO LINE 1;  CLARK FROM LINE 3 TO LINE 2;
 ROSE FROM LINE 5 TO LINE 4;  MCGILLICUDDY FROM LINE 7 TO LINE 6;  AND
 PRICE FROM LINE 1 TO LINE 7).
 
    FROM THE FOREGOING IT IS OBVIOUS THAT RESPONDENT ADHERED STRICTLY TO
 THE SCHEDULED DAYS OFF FOR EACH LINE, OR POSITION, AND FOLLOWED THE
 ESTABLISHED, AND CONCEDED, SYSTEM OF ROTATION, WITH RECOGNITION, AS THE
 PARTIES AGREED AT THE SEPTEMBER CONSULTATION, THAT ONE LINE, OR
 POSITION, WOULD BE BLANK ON EACH SCHEDULE.  THERE IS NO DISPUTE WHATEVER
 THAT A SUPERVISOR, MR. ANDERSON OR MR. HATCHETT, WOULD BE ASSIGNED TO
 ONE LINE, OR POSITION.  MS. PRICE'S ADAMANT INSISTENT THAT THEY NEEDED,
 AND PROVIDED FOR, SEVEN LINES, OR POSITIONS, AND HER TESTIMONY THAT,
 
    "INSTEAD OF EVERYONE WORKING THE SAME SCHEDULE, IN OTHER WORDS
 EVERYONE HAVING THE SAME
 
    SHIFT AND CONTINUING EVEN ROTATION DIFFERENT SHIFTS WERE AGREED ON
 FOR EACH LINE AND A
 
    SPECIFIC DAY OF THE WEEK.  EVEN ROTATION UPWARDS." (TR. 110)
 
    SHOWS THAT RESPONDENT'S WATCH SCHEDULES FOR DECEMBER AND JANUARY
 (G.C. EXH. 4 B AND 4 C) WERE FULLY CONSISTENT WITH THE UNDERSTANDING
 AGREED TO BY THE PARTIES IN THEIR SEPTEMBER CONSULTATION.
 
    NOT ONLY DOES THE PREPONDERANCE OF THE EVIDENCE SHOW THAT RESPONDENT
 ADHERED TO THE UNDERSTANDING ARRIVED AT IN THEIR SEPTEMBER, 1979,
 CONSULTATION IN ITS DECEMBER AND JANUARY WATCH SCHEDULES, BUT THE
 OVERWHELMING WEIGHT OF THE RECORD SHOWS THAT GROUNDS RELIED UPON BY THE
 GENERAL COUNSEL TO ESTABLISH THE UNFAIR LABOR PRACTICE ALLEGED IN THE
 COMPLAINT WERE EITHER WHOLLY UNSUPPORTED OR WERE CONTRARY TO THE
 OVERWHELMING WEIGHT OF THE EVIDENCE.  THUS, BY WAY OF EXAMPLE:  A) THE
 ASSERTION THAT THE OCTOBER SCHEDULE CONSTITUTED A FIXED SCHEDULE AND/OR
 THAT THE PARTIES AGREED THAT THERE SHOULD BE A FIVE LINE SCHEDULE WAS
 SHOWN BY THE TESTIMONY OF MS.  PRICE, ONE OF PATCO'S REPRESENTATIVES AT
 THE SEPTEMBER MEETING, AND OF MR. ANDERSON, NOT TO HAVE BEEN THE
 AGREEMENT OF THE PARTIES.  TO THE CONTRARY, THE RECORD FIRMLY
 ESTABLISHED THAT THE PARTIES AGREED TO A SEVEN LINE SCHEDULE;  THAT
 DIFFERENT SHIFTS WERE AGREED ON FOR EACH LINE, WITH EVEN ROTATION
 UPWARDS;  B) THE ASSERTION THAT RESPONDENT CHANGED SCHEDULED DAYS OFF
 WAS SHOWN TO BE WITHOUT BASIS IN FACT.  TO THE CONTRARY, THE RECORD
 AFFIRMATIVELY SHOWS THAT RESPONDENT STRICTLY ADHERED TO THE ASSIGNED
 DAYS OFF FOR EACH OF THE SEVEN LINES, OR POSITIONS, AND THAT ESTABLISHED
 ROTATION WAS FOLLOWED, WITH RECOGNITION, AS THE PARTIES AGREED, THAT ONE
 LINE, OR POSITION, WOULD HAVE TO BE BLANK ON EACH SCHEDULE BECAUSE OF
 THE LIMITED NUMBER OF JOURNEYMEN CONTROLLERS THEN AVAILABLE;  C) THE
 ASSERTION THAT RESPONDENT CHANGED THE STARTING TIMES OF SHIFTS AND/OR
 THE "MIX" OF SHIFTS, WHILE TRUE, WAS NOT SHOWN TO HAVE BEEN CONTRARY TO
 THE AGREEMENT OF THE PARTIES.  TO THE CONTRARY, AS MS. PRICE TESTIFIED,
 "THE SEVENTH LINE IS BLANK . . . AND THE PEOPLE AROUND THAT HAVE TO PICK
 UP THE SLACK IN THAT LINE.  THAT'S WHERE THE ADJUSTMENT COMES IN" (TR.
 113) AND MR.  ANDERSON TESTIFIED, " . . . WE WOULD KEEP AS CLOSE TO A
 15, 15, 8:00, 7:00, 7:00 LINE AS STAFFING WOULD PERMIT . . ." (TR. 130)
 "AGAIN, I SAY THAT WE AGREED THAT THE SCHEDULE WOULD REFLECT THE
 STARTING HOUR OF 15, 8:00 AND 7:00 AND THAT THESE HOURS ON THE SCHEDULE
 WOULD BE ASSIGNED FOR THE SCHEDULE TO STAY AS CLOSELY TO THE DESIRED 15,
 15, 8:00, 7:00 AND 7:00 SCHEDULE, BUT THAT THERE WOULD BE VARIATIONS ON
 EACH LINE, OR ON SOME LINES, TO PROVIDE ADEQUATE COVERAGE FOR THOSE
 SHIFTS." (TR. 136) (SEE, ALSO RES. EXH 1).  G.C. EXHIBITS 4 B AND 4 C
 DEMONSTRATE GOOD FAITH COMPLIANCE WITH THE AGREED GOAL OF STAYING AS
 CLOSE TO THE DESIRED 15, 15, 8, 7 AND 7 SCHEDULE AS STAFFING PERMITTED.
 INDEED, THIS GOAL WAS MORE NEARLY ACHIEVED ON THE DECEMBER AND JANUARY
 SCHEDULES (G.C. EXHS. 4 B AND 4 C) THAN HAD BEEN ACHIEVED ON THE OCTOBER
 AND NOVEMBER SCHEDULES (G.C. EXH. 4 A-1 AND 4 A).
 
    FOR ALL OF THE FOREGOING REASONS, I FIND THAT THE GENERAL COUNSEL HAS
 FAILED TO ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT RESPONDENT
 BREACHED ANY COLLECTIVE BARGAINING AGREEMENT AND/OR THAT IT ALTERED ANY
 ESTABLISHED WATCH SCHEDULE IN VIOLATION OF SEC.  16(A)(5) OR (1) OF THE
 STATUTE.  TO THE CONTRARY, THE PREPONDERANCE OF THE EVIDENCE SHOWS THAT
 RESPONDENT'S DECEMBER AND JANUARY WATCH SCHEDULES (G.C. EXH. 4 A AND 4
 B) WERE FULLY IN ACCORD WITH THE UNDERSTANDING OF THE PARTIES AGREED TO
 AT THEIR SEPTEMBER, 1979, CONSULTATION.  /3/
 
                                   ORDER
 
    HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SEC. 16(A)(5) OR (1) OF
 THE STATUTE AS CHARGED, I RECOMMEND THAT THE COMPLAINT HEREIN BE
 DISMISSED.
 
                         WILLIAM B. DEVANEY
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  NOVEMBER 13, 1980
    WASHINGTON, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE
 ADMINISTRATIVE LAW JUDGE'S ALTERNATIVE GROUNDS FOR DISMISSING THE
 COMPLAINT CONTAINED IN FOOTNOTE 2 OF HIS DECISION AND ORDER.
 
    /2/ HEREINAFTER, FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE
 STATUTE ARE ALSO REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71"
 PORTION OF THE STATUTE REFERENCE, E.G., SEC. 7116(A)(1) SIMPLY AS
 "16(A)(1)".
 
    /3/ ALTHOUGH NOT NECESSARY IN VIEW OF THE CONCLUSION REACHED
 CONCERNING THE SEPTEMBER, 1979, AGREEMENT OF THE PARTIES, THE FOLLOWING
 CONSIDERATIONS CONSTITUTE A SEPARATE AND INDEPENDENT BASIS FOR DISMISSAL
 OF THE COMPLAINT:
 
    A) THE ABSENCE OF ANY OBJECTION BY PATCO TO EITHER THE DECEMBER OR
 JANUARY WATCH SCHEDULE, ALTHOUGH THE RECORD SHOWS WITHOUT
 CONTRADICTION
 THAT THE SCHEDULES WERE PRESENTED TO PATCO'S REPRESENTATIVES "TO LOOK
 OVER" PRIOR TO POSTING.
 
    B) I FULLY CREDIT MR. ANDERSON'S TESTIMONY THAT MR. MCGILLICUDDY,
 WHEN SHOWN THE DECEMBER SCHEDULE (G.C. EXH. 4 B), COMMENTED "THERE'S
 NOTHING WRONG WITH THIS SCHEDULE, I'VE GOT SATURDAY AND SUNDAY OFF SO I
 CAN GO PARACHUTING WITH MY BUDDIES";  BUT EVEN IN THE ABSENCE OF SUCH
 COMMENT, THE MOST CURSORY EXAMINATION OF THE DECEMBER SCHEDULE WOULD
 HAVE SHOWN THAT LINE 6 WAS BLANK, WHEREAS LINE 4 HAD BEEN BLANK ON THE
 OCTOBER AND NOVEMBER SCHEDULES;  THAT MR.  HATCHETT WAS ASSIGNED TO LINE
 4 WHICH HAD BEEN BLANK ON THE OCTOBER AND NOVEMBER SCHEDULE AND THAT HE,
 MCGILLICUDDY, WAS ASSIGNED TO LINE 7 WHEREAS A SUPERVISOR, MR. ANDERSON
 OR MR. HATCHETT, HAD BEEN ASSIGNED TO LINE 7 ON THE OCTOBER AND NOVEMBER
 SCHEDULES.  MR. LACHANCE TESTIFIED THAT HE HAD LOOKED AT THE JANUARY
 SCHEDULE, SAW THAT IT WAS DIFFERENT FROM THE PREVIOUS SCHEDULE, BUT MADE
 NO COMMENT TO MR. ANDERSON.  OF COURSE, THE JANUARY SCHEDULE SHOWED ON
 ITS FACE THAT LINE 5 WAS BLANK, WHEREAS LINE 6 HAD BEEN BLANK ON THE
 DECEMBER SCHEDULE AND LINE 4 HAD BEEN BLANK ON THE NOVEMBER SCHEDULE;
 THAT MR. HATCHETT HAD BEEN ASSIGNED TO LINE 3, WHEREAS HE HAD BEEN
 ASSIGNED TO LINE 4 ON THE NOVEMBER SCHEDULE AND TO LINE 7 ON THE
 NOVEMBER SCHEDULE.
 
    C) THE FOREGOING NOT ONLY STRONGLY INFERS THAT NEITHER MR.
 MCGILLICUDDY NOR MR. LACHANCE VIEWED EITHER THE DECEMBER SCHEDULE OR THE
 JANUARY SCHEDULE AS INCONSISTENT WITH THE SEPTEMBER, 1979,
 UNDERSTANDING;  BUT MORE IMPORTANT, EVEN IF SOME VIOLATION WERE
 PERCEIVED, NOT EVERY BREACH OF CONTRACT CONSTITUTES AN UNFAIR LABOR
 PRACTICE.  GENERAL SERVICES ADMINISTRATION, REGION 5, PUBLIC BUILDINGS
 SERVICE, CHICAGO FIELD OFFICES, A/SLMR NO. 528, 5 A/SLMR 424(1975).  A
 CLEAR, FLAGRANT AND PERSISTENT BREACH OF CONTRACT MAY RISE TO THE
 SERIOUSNESS OF A UNILATERAL CHANGE IN THE CONTRACT AND, THEREFORE,
 CONSTITUTE AN UNFAIR LABOR PRACTICE, WATERVLIET ARSENAL, U.S. ARMY
 ARMAMENT COMMAND, WATERVLIET, NEW YORK, A/SLMR NO. 726, 6 A/SLMR
 526(1976), BUT IF THERE IS NO FLAGRANT OR PATENT BREACH CONSTITUTING A
 UNILATERAL CHANGE, DIFFERING AND ARGUABLE INTERPRETATIONS OF AN
 AGREEMENT ARE NOT UNFAIR LABOR PRACTICES, WATERVLIET ARSENAL, SUPRA;
 DEPARTMENT OF ARMY, WATERVLIET ARSENAL, WATERVLIET, NEW YORK, A/SLMR
 624, 6 A/SLMR 127(1976), AND THE REMEDY LIES WITHIN THE GRIEVANCE
 MACHINERY OF THE NEGOTIATED AGREEMENT, RATHER THAT THROUGH THE UNFAIR
 LABOR PRACTICE PROCEDURE, AEROSPACE GUIDANCE AND METROLOGY CENTER,
 NEWARK AIR FORCE STATION, NEWARK, OHIO, A/SLMR NO. 677, 6 A/SLMR
 361(1976);  OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER AIR FORCE BASE,
 OKLAHOMA, 3 FLRA NO. 82(1980);  DEPARTMENT OF THE AIR FORCE, 3480TH AIR
 BASE GROUP, GOODFELLOW AIR FORCE BASE, TEXAS, CASE NO. 6-CA-139(ALJ)
 SEPTEMBER 8, 1980).  HERE, THERE WAS NO REFUSAL CONSULT.  TO THE
 CONTRARY, THE PARTIES DID CONFER IN SEPTEMBER, 1979, AND AGREED UPON
 SCHEDULING;  THE UNION, ALTHOUGH SHOWN THE DECEMBER AND JANUARY
 SCHEDULES PRIOR TO THEIR BEING POSTED, DID NOT REQUEST FURTHER
 CONSULTATION;  AND THE PARTIES SUBSEQUENTLY MET AND AGREED ON LATER
 WATCH SCHEDULES.  AT MOST, THERE WERE DIFFERING AND ARGUABLE
 INTERPRETATIONS OF WHAT HAD BEEN AGREED TO AT THE SEPTEMBER, 1979,
 CONSULTATION AND CERTAINTY, NO PATENT OR FLAGRANT BREACH WHICH
 CONSTITUTED A UNILATERAL CHANGE OF AGREEMENT FOR WHICH AN UNFAIR LABOR
 PRACTICE VIOLATION COULD BE FOUND.