U.S. Department of Transportation, Federal Aviation Administration, Airway Facilities Center, Denver Air Route Traffic Control Center, Longmont, Colorado (Respondent) and Denver ARTCC Professional Airways System Specialists, Local 404 (Charging Party)



[ v05 p817 ]
05:0817(106)CA
The decision of the Authority follows:


 5 FLRA No. 106
 
 U.S. DEPARTMENT OF TRANSPORTATION
 FEDERAL AVIATION ADMINISTRATION
 AIRWAY FACILITIES CENTER, DENVER
 AIR ROUTE TRAFFIC CONTROL CENTER,
 LONGMONT, COLORADO
 Respondent
 
 and
 
 DENVER ARTCC PROFESSIONAL AIRWAYS
 SYSTEM SPECIALISTS, LOCAL 404
 Charging Party
 
                                            Case No. 7-CA-32
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD
 NOT ENGAGED IN UNFAIR LABOR PRACTICES UNDER EXECUTIVE ORDER 11491, AS
 AMENDED, ALLEGED IN THE COMPLAINT, AND RECOMMENDING THAT THE COMPLAINT
 BE DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE JUDGE'S
 RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2423.1 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.1).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
 PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).  /1/
 
    THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2423.29) AND SECTION 7135(B) OF THE STATUTE, THE
 AUTHORITY HAS REVIEWED THE RULINGS OF THE JUDGE MADE AT THE HEARING AND
 FINDS NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.  UPON CONSIDERATION OF THE JUDGE'S DECISION AND THE ENTIRE
 RECORD IN THIS CASE, AND NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS,
 THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATION.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 7-CA-32 BE, AND
 IT HEREBY IS DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 29, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    WALTER L. GEORGE
    FOR THE RESPONDENT
 
    GAVIN K. LODGE, ESQUIRE
    FOR THE GENERAL COUNSEL
 
    BEFORE:  JOHN H.FENTON
    CHIEF ADMINISTRATIVE LAW JUDGE
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE PURSUANT TO THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, 5 U.S.C. 7101 ET SEQ., AS A RESULT OF AN UNFAIR LABOR
 PRACTICE COMPLAINT DATED MARCH 11, 1980, FILED BY THE REGIONAL DIRECTOR,
 SEVENTH REGION, FEDERAL LABOR RELATIONS AUTHORITY, KANSAS CITY,
 MISSOURI, AGAINST THE U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL
 AVIATION ADMINISTRATION AIRWAYS FACILITIES CENTER, DENVER AIR ROUTE
 TRAFFIC CONTROL CENTER, LONGMONT, COLORADO.
 
    THE COMPLAINT ALLEGED THAT RESPONDENT, ON JANUARY 9, 1979, REMOVED A
 TELEVISION SET FROM ITS CENTRAL COMPUTER COMPLEX WITHOUT FURNISHING
 LOCAL 404, DENVER ARTCC PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS, WITH
 ADEQUATE NOTICE OR AN OPPORTUNITY TO BARGAIN ABOUT SUCH CHANGE.  A
 HEARING WAS HELD IN DENVER, COLORADO, ON JUNE 25, 1980, AND ALL PARTIES
 WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, ADDUCE RELEVANT EVIDENCE,
 EXAMINE AND CROSS-EXAMINE WITNESSES AND FILE BRIEFS.  ON THE BASIS OF
 THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR
 DEMEANOR.  I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW AND
 RECOMMENDATIONS.
 
                             FINDINGS OF FACT
 
    1.  IN 1972 RESPONDENT PERMITTED THE EMPLOYEES OF ITS AIRWAYS
 FACILITY CENTER TO PLACE A TV SET IN A SO-CALLED BREAK ROOM ADJACENT TO
 ITS CENTRAL COMPUTER COMPLEX (CCC), AND TO USE IT FOR RECREATIONAL
 PURPOSES.  IN 1974 THE EMPLOYEES REPLACED IT WITH A COLLECTIVELY
 PURCHASED COLOR TV SET.  NO RULE WAS EVER PROMULGATED ABOUT ITS USE,
 EXCEPT THAT, IN 1975, SUPERVISORS ORALLY INSTRUCTED EMPLOYEES THAT IT
 WAS NOT TO BE USED DURING ADMINISTRATIVE WORK HOURS (8:00 AM TO 4:30 PM,
 MONDAY THROUGH FRIDAY).  THESE TECHNICIANS, WHO PROVIDE SUPPORT SERVICE
 TO THE AIR TRAFFIC CONTROLLERS, WORK AROUND THE CLOCK.
 
    2.  TWO OTHER TV SETS FOR SIMILAR USE ARE WITHIN A MINUTE OR TWO'S
 WALK FOR THE CCC EMPLOYEES.  ONE IS IN THE CAFETERIA AND THE OTHER IS IN
 A DEFINED BREAK (NON-WORK) AREA.  THE ROOM IN QUESTION HAS MIXED
 PURPOSES.  IN ADDITION TO THE TV, IT CONTAINS A DESK, TWO TABLES,
 CHAIRS, A COFFEE POT, TIME AND ATTENDANCE RECORDS, MAIL DROPS AND
 READING MATERIALS, INCLUDING TECHNICAL MANUALS.  THUS, IT IS USED AS A
 WORK PLACE AND ALSO AS A GATHERING PLACE DURING BREAKS AND THE LUNCH
 PERIOD.
 
    3.  ALTHOUGH RESPONDENT ASSERTS THAT THERE WERE MANY INSTANCES OF
 ABUSE WHICH INTERFERED WITH WORK, NO EMPLOYEE WAS EVER DISCIPLINED OR
 EVEN ADMONISHED FOR IMPROPER USE OF THE SET.  APPARENTLY MOST OF THESE
 TECHNICIANS WORKED WITHOUT A GREAT DEAL OF IMMEDIATE SUPERVISION, AND IT
 IS ASSERTED THAT ABUSE WAS DIFFICULT TO CONTROL.  IT IS APPARENT THAT
 SOME SUPERVISORS HAD CONTRIBUTED TO PURCHASE OF THE SET AS WELL AS ITS
 ABUSE.  ASSISTANT SECTOR MANAGER JOHN OLSON SPOKE TO OFFICIALS OF AFGE
 (PREDECESSOR TO PASS) ABOUT HIS CONCERN, AND HE TOLD HIS SUPERVISORS TO
 TRY TO CONTROL IT, BUT HE DID NOT SUGGEST THAT DISCIPLINE BE EMPLOYED.
 
    4.  IN DECEMBER 1978, THE CCC CREW CHIEFS (FIRST-LINE SUPERVISORS)
 MET AND UNANIMOUSLY DECIDED TO RECOMMEND THAT THE TV SET BE REMOVED.  ON
 JANUARY 5, 1979, THEY SENT A MEMORANDUM TO THE SECTOR MANAGER POINTING
 OUT THAT THE SET INTERFERED WITH WORK AND DEGRADED THEIR SUPPORT SYSTEM,
 AND RECOMMENDING THAT MANAGEMENT CONSULT WITH THE UNION AND ELIMINATE
 IT.
 
    5. ON DECEMBER 11, 1978, LOCAL 404, PROFESSIONAL AIRWAY SYSTEMS
 SPECIALISTS, WAS RECOGNIZED AS THE BARGAINING REPRESENTATIVE OF THE
 EMPLOYEES INVOLVED. MANAGEMENT DID NOT BETRAY ITS CONCERNS OR ANY PLANS
 IT HAD RESPECTING THE TV SET TO THE NEW OFFICERS UNTIL JANUARY 8, 1979.
 ON THAT DAY JOHN OLSON, ACTING SECTOR MANAGER, CALLED LOCAL PRESIDENT
 CARL SANDERS, JR., TO HIS OFFICE AT ABOUT 3:00 PM.  ACCORDING TO OLSON,
 HE SPOKE AT LENGTH ABOUT ABUSES, SHOWED SANDERS THE LETTER FROM THE CREW
 CHIEFS AND SAID THEY HAD RECOMMENDED THAT HIS OFFICE "BITE THE BULLET"
 AND REMOVE THE SET.  SANDERS SAID THE LOCAL WOULD NOT AGREE AND THAT THE
 PROBLEM WAS ONE FOR THE SUPERVISORS TO CONTROL. ACCORDING TO SANDERS,
 OLSON OPENED THE MEETING BY ANNOUNCING THAT MANAGEMENT HAD DECIDED TO
 "BITE THE BULLET" AND FOLLOWED IT UP WITH A LIST OF ALLEGED ABUSES, NONE
 OF WHICH WAS SPECIFIC AS TO NAMES, DATES, ETC.  HE NOTED HIS
 DISAGREEMENT, IF NOT OBJECTION, SAID THAT NOBODY HAD EVER BEEN WARNED,
 COUNSELLED OR DISCIPLINED FOR ANY OF THE ALLEGED INCIDENTS, AND POINTED
 OUT THAT SUPERVISORS SHOULD CONTROL ANY PROBLEMS.  SANDERS DID NOT
 REQUEST THAT OLSON POSTPONE HIS DECISION, NEGOTIATE /2/ OR CONSULT OVER
 IT