[ v11 p36 ]
11:0036(18)CO
The decision of the Authority follows:
11 FLRA No. 18
UNITED STATES DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION, SOUTHWEST REGION
Respondent
and
PROFESSIONAL AIR TRAFFIC
CONTROLLERS ORGANIZATION
Charging Party
Case No. 6-CA-568
ORDER GRANTING MOTION TO DISMISS COMPLAINT
The above-entitled case is before the Federal Labor Relations
Authority pursuant to section 7105(a)(2)(H) of the Federal Service
Labor-Management Relations Statute (the Statute), after being
transferred by Order of the Administrative Law Judge in accordance with
section 2423.26 of the Authority's Rules and Regulations. The
Respondent filed exceptions to the Judge's Decision and the General
Counsel filed a response thereto. Thereafter, the General Counsel filed
a motion to dismiss the complaint in view of the Authority's decision in
Professional Air Traffic Controllers Organization, Affiliated with MEBA,
AFL-CIO, 7 FLRA No. 10 (1981), affirmed sub nom., Professional Air
Traffic Controllers Organization v. Federal Labor Relations Authority,
685 F.2d 547 (D.C. Cir. 1982).
In that decision, the Authority revoked the exclusive recognition
status of the Charging Party herein, PATCO, for having engaged in strike
activity prohibited by section 7116(b)(7) of the Statute, and found that
PATCO is no longer a labor organization within the meaning of the
Statute.
Upon careful consideration of the motion to dismiss filed by the
General Counsel, it has been determined that this unfair labor practice
case has been rendered moot. In this regard, the Authority notes
particularly that individual rights of employees are not affected;
rather, as found by the Judge, only the institutional rights of PATCO
(to be unconditionally represented at certain formal discussions) were
allegedly affected by the Respondent's actions. Thus, due to
Respondent's loss of status as an exclusive representative and as a
labor organization under the Statute, any decision rendered herein
cannot have any practical legal effect.
Accordingly, IT IS HEREBY ORDERED that the complaint in the
above-entitled case be, and it hereby is, dismissed.
Issued, Washington, D.C., January 14, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Lynda G. Cameron
For the Respondent
Irene Jackson, Esquire
Steven M. Angel, Esquire (on the brief)
For the General Counsel
Before: GARVIN LEE OLIVER
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., (the Statute), as a result of
an unfair labor practice complaint filed by the Regional Director,
Region Six, Federal Labor Relations Authority, Dallas, Texas, against
the United States Department of Transportation, Federal Aviation
Administration, Southwest Region (Respondent) based on a charge filed by
the Professional Air Traffic Controllers Organization (Charging Party or
Union).
The complaint alleged, in substance, that Respondent violated
sections 7116(a)(1), (5), and (8) of the Statute by conducting formal
meetings, as defined by section 7114(a)(2)(A) of the Statute, during the
week of February 4, 1980, without affording the Union an opportunity to
be present.
A hearing was held in this matter in Ft. Worth, Texas. The
Respondent and the General Counsel were represented by counsel and
afforded full opportunity to be heard, adduce relevant evidence, examine
and cross-examine witnesses, and file post-hearing briefs.
Based on the entire record herein, including my observation of the
witnesses and their demeanor, the exhibits and other relevant evidence
adduced at the hearing, and the briefs, I make the following findings of
fact, conclusions of law, and recommendations.
Findings of Fact
1. At all times material herein Respondent and the Union have been
parties to a collective bargaining agreement recognizing the Union as
the exclusive bargaining agent for an appropriate unit of employees,
including air traffic control specialists at the Oklahoma City Radar
Approach Control Tower (RAPCON Tower) and the Will Rogers Tower.
(General Counsel's Ex. 1(d), par. 3; General Counsel's Ex. 1(f), par.
3; Tr. 17). Subjects covered by the collective bargaining agreement
include Article 7 (Grievance procedure), Article 25 (acceptable level of
competence determinations), Article 50 (recognition and awards program),
Article 52 (training), Article 53 (on the job training), Article 55
(controller performance), and Article 71 (system error review board).
2. In early 1980 Respondent decided to send a six-man regional task
force to the Oklahoma City RAPCON Tower to conduct a special in-depth
evaluation of management and operational problems as a follow-up of an
earlier check evaluation conducted at the facility in September 1979.
The Task force determined that it would be essential to interview almost
everyone at the facility, including members of the bargaining unit.
(Tr. 91-93).
3. On January 15, 1980 the Chief, RAPCON Tower sent a memorandum to
all personnel which stated, in part, as follows:
As a follow-up to our last check evaluation conducted by
ASW-520 during September 10-14, 1979, representatives of the Air
Traffic Division will be visiting our facility during the week of
February 4-8, 1980. The purpose of their visit will be to observe
our operations and to determine how effectively our previous
deficiencies have been corrected and if effective measures have
been established to correct certain procedural and operational
problems. Their visit will also include discussions with facility
personnel in order to obtain as much feedback as possible on the
status of our operation. (Joint Ex. 3).
4. During the period January 18 to February 4, 1980 Respondent and
the Union discussed the proposed evaluation and interviews. The Union's
position was that this type of in-depth investigation and interview of
employees in the bargaining unit would constitute a "formal discussion"
under section 7114 of the Statute at which the Union had the right to be
present. Respondent's position was that the Union had no right under
the Statute to be represented at the interviews, but, as a courtesy to
the Union and in order to ensure that the employees would be open and
free in their discussions, management would permit a Union
representative to be present if requested by the individual employee.
(Tr. 17-20; 92-101).
5. On January 29, 1980 the Chief, RAPCON Tower addressed another
memorandum to all personnel which stated as follows:
In the reference letter, we mentioned that the evaluation team
would be discussing matters of interest with facility personnel to
obtain feedback. In order to provide everyone with the
opportunity to meet with the team, each employee will be
interviewed by representatives of the team during scheduled duty
time. If any employees prefers to meet with the team during
non-duty hours at an off-base location, this can also be arranged.
Since these discussions will not involve potential discipline or
union contract matters, a union representative will not be
required; however, we have arranged to have a union
representative available if anyone feels the need for
representation. The evaluation team will begin interviews on
Monday afternoon, February 4.
Interviews will be conducted at Will Rogers Tower as well as
the RAPCON. Members of the team will also be assigned to the
operational quarters to monitor our services. Visitations with
users will also be conducted during their visit. It is expected
that the evaluation team will be here until Tuesday, February 12.
6. Approximately 40 members of the bargaining unit were interviewed
by the team during the period February 4-8, 1980. (Tr. 54). All except
3 requested to have a Union representative present. (Tr. 25, 48). The
record reflects that some, if not all, the interviews were conducted in
an office on the jobsite, but separate from the employees' workplace.
(Tr. 70, 85, 88).
7. Below, on the left hand side, in pertinent part, is the form used
by the interviewers, (Joint Ex. 2) and, on the right side, are notes
taken by the Union concerning the questions asked. (General Counsel's
Ex. 2; Tr. 24-25). There is no dispute that these constitute the
substance of the pertinent questions asked during the interviews.
Name Date Name
Crew Team
Team Supervisor
1st Line 2nd Line Assistant Chief
Supervisor Supervisor
How long have you been in the Agency?
Would you briefly explain your background? (Other facilities
where you have worked and what you did).
How do you feel you get along with:
1. Your supervisor?
2. Second level supervisor?
3. Other supervisor?
4. "Front Office" (Chief, Deputy Chief, FEDS, DSS, PPS)?
What Kind of relationship do you have with your team
supervisor?
What kind of relationship do you have with your assistant
chief?
What kind of relationship does your team supervisor/assistant
chief have with each other?
What kind of relationship do they have with other supervisors?
What kind of relationship do you have with other supervisors?
What kind of relationship do you have with front office?
What kind of communications do you feel you have with:
1. Your supervisor (Open - frank exchange of thoughts without
fear)?
Second level supervisor?
3. Other team supervisors?
What kind of communications do you feel your supervisor has
with:
Assistant Chief? Other team sups? Controllers? Training
Department? DSS? PPS? Deputy Chief? Chief?
Do you feel the chief has an open door policy? Deputy Chief?
Does the chief have an open door policy? Does the Deputy
Chief?
What is your view of your supervisor (As a
supervisor-operationally-competency)?
What is your view of the Assistant Chiefs?
What is your view of other team supervisors?
Is your team supervisor operationally proficient? Your
Assistant Chief? Other supervisors
How would a question you ask of your supervisor be handled?
How do you ask if you have questions on operational matters.
How does your supervisor respond to your suggestions?
Does your supervisor periodically discuss your work with
you-other than the tap? How often? When was the last time? How
was discussion held?
Does your supervisor discuss your performance? How often? How
is this handled?
Does your supervisor discuss your weaknesses? Does the
supervisor offer help for improvement? Has the supervisor done
anything to help you improve? What? When? How? Does your
supervisor discuss your strengths?
Does the facility have supervisory meetings? Where are they
held? Do you receive feedback on sups meetings? Do you provide
feedback to your team on items discussed at supervisory meetings?
Are supervisors meetings held at OKC? How often? Where? Do
you receive feedback from these meetings?
How are briefings conducted on new procedures? (Timely) (ETG)
What is the best procedure you have in the facility? What is
the worse procedure you have in the facility? Are there any traps
for the controller in the procedures now in use? What is your
opinion of FETTAC (Effective-Not effective)? How does your team
work with other teams?
What is the best procedure at OKC? What is the worse procedure
OKC? Are there any traps in the current procedures at OKC? What
is your opinion of the services provided by OKC? How does your
team get along other teams at OKC?
How is developmental training conducted? How is FPL refresher
training conducted? How is the ETG lab used?
What happens after someone in the facility has a system error?
How are system error review boards conducted?
What happens when there is a systems error at OKC?
What kind of relationship do you feel the facility has with:
Fort Worth Center USAF? AF? ACADEMY? PWA? FSS? USERS?
How does your team get along with Fort Worth Center? What kind
of relationship does OKC have with? Air Force? FAA Academy?
PWA? USERS?
What do you think about the quality of services provided by
this facility? What is your view of management in this facility?
How does management in this facility compare with management at
other facilities you have worked? Supervisors? Support staff?
What is your opinion of Don White? What is your opinion of
Harry Weatherford?
What do you think of the awards program? How do you feel about
this facility?
Is there anything else you want to talk about?
8. As noted, the questions elicited the personal opinion of
bargaining unit employees concerning such matters as relationships and
communications with, and the competency of, various levels of
supervision and management generally, how employee teams get along, the
best and worst procedures at the facility, the facility's relationships
with other agencies, and the awards programs. Certain questions also
sought factual information concerning supervisory meetings, briefings,
training programs, whether the supervisor discusses the employee's
performance, weaknesses, strengths, and has done anything to help the
employee improve, how procedures are developed and implemented, what
happens when someone has a systems error, how systems error review
boards are conducted, and how a question or suggestion to a supervisor
is handled. The question, "What is the worst procedure at OKC?"
elicited comments as to aircraft departure procedures. (Tr. 42-43, 52).
The question, "What is your opinion of FETTAC (effective-not
effective)?" referred to the Facility Air Traffic Technical Advisory
Committee, which is made up of one representative from each crew and
processes suggestion from controllers on the procedural handling of air
traffic. (Tr. 44, 51). The question, "How is developmental training
conducted?" referred to the type of training given to new personnel. It
was designed to determine if the training program was adequate. (TR.
119-120). The question, "How is FPL refresher training conducted?"
referred to training given to poor performance level controllers. It
was designed to determine the kind of training program being given at
the facility and whether controllers were benefiting from it. (TR.
120). The question, "How is the ETG lab used?" referred to the
electronic target generator used to simulate air traffic targets for
operational training. (Tr. 45, 52). The question elicited such
responses as it was not liked, was not being used as much as it should
be, or should be dropped. (Tr. 49-50). The question, "What is your
opinion of the awards programs?" referred to the awards program for
performance, such as outstanding, superior, or quality step increase
performance awards. (Tr. 119). The question, "Is there anything else
you want to talk about?" elicited complaints about only one man being
assigned to a midwatch, (Tr. 46-47), a suggestion as to reinstituting an
abolished form (TR. 46), comments on grievances and disciplinary actions
which were no longer pending before the facility (Tr. 48, 66-67, 74),
aircraft approach and departure procedures (Tr. 58, 60, 65) and the
professional attitude of management toward controllers and vice versa.
(Tr. 89). One employee also expressed his opinion during the interview
about the evaluation panel itself and the quality of the physical
facilities and equipment. (Tr. 71-72).
9. There is no evidence that the interviewers bargained with
employees, or offered any suggestions or solutions to the problems
identified during the interviews.
10. As a result of the interviews and facility evaluation, three
management officials at the facility were involuntarily reassigned. (Tr.
36-37, 81, 102). There is no evidence that personnel policies,
practices, or matters affecting working conditions were changed as a
result of the interviews. (Tr. 37, 101-102).
Discussion, Conclusions, and Recommendations
The complaint alleges that Respondent's interviews of unit employees
were formal discussions within the meaning of section 7114(a)(2)(A) of
the Statute; /1/ that Respondent violated section 7114(a)(2)(A), and,
thus, sections 7116(a)(1) and (8) by conducting formal discussions
without affording the Union an opportunity to be present; and violated
sections 7116(a)(1) and (5) in bypassing the exclusive representative
with regard to the very matters for which it was chosen by the unit
employees to act as their spokesman.
Respondent contends that it did not violate the Statute inasmuch as
the interviewers only gathered information on management techniques and
operational procedures. Respondent states that such interviews did not
constitute formal discussions within the meaning of section
7114(a)(2)(A), because no bargaining took place over the formulation and
implementation of personnel policies, practices, or matters affecting
working conditions.
The record, including the memoranda addressed to bargaining unit
employees, reflects that bargaining unit employees were required to
submit to interviews by the regional task force. Some, if not all, of
the interviews were conducted in an office apart from the employees'
workplace. A structured format was used for the interviews, consisting
of a set of questions prepared by the task force in advance. In the
circumstance, including the required mandatory attendance, the
established format, and the subject matter discussed, such interviews
constituted formal discussions within the meaning of section
7114(a)(2)(A) of the Statute. Department of Health, Education and
Welfare, Region IV, Atlanta, Georgia and Department of Health and Human
Services, Region IV, Atlanta, Georgia and National Treasury Union, 5
FLRA No. 58 (1981).
The task force members who conducted the interviews were
"representatives of the agency." Hence, the formal discussion was
between representatives of the agency and "one or more employees in the
(bargaining unit." Department of Health, Education and Welfare, Region
IV, supra.
The record reveals that many of the subjects covered concerned
personnel policies or practices or general conditions of employment.
Employees were asked to give their opinion and sentiments concerning the
awards program, the Technical Advisory Committee, their teams,
supervisors, management, the facility in general, and relationships with
other agencies, among other things, and were questioned about various
training programs, systems error procedures, and various relationships
with their supervisors, including the handling of suggestions and
performance evaluations by their supervisors. These broad-ranging
questions and the general question, "Is there anything else you want to
talk about?," elicited not only personal opinions, sentiments, and
facts, but various complaints about assignments, physical facilities,
equipment, operational training, and various suggestions for improvement
in the areas of operational training, forms, equipment, and professional
attitude. Many of the subjects discussed are covered by the parties'
negotiated agreement. For example, Articles 25 and 26 deal with
performance evaluations, Article 33 (watch schedules and shift
assignments), Article 50 (recognition and awards program), Article 52
(training), Article 53 (on the job training), Article 55 (controller
performance), and Article 71 (system error review board). /2/
Inasmuch as the interviews with bargaining unit employees in question
were formal discussions and concerned personnel policies or practices or
other conditions of employment affecting employees in the unit generally
the Union was entitled to be represented at them pursuant to section
7114(a)(2)(A) despite the fact that no bargaining, as such, took place.
Department of Health, Education and Welfare, Region IV, supra. The
exclusion of the exclusive representative from such discussions, in
effect, would result in bypassing of the exclusive representative with
regard to the very matters for which it was chosen by the unit employees
to act as their spokesman. Cf. Internal Revenue Service, Atlanta
District Office, Atlanta, Georgia, A/SLMR No. 1014, 8 A/SLMR 370, review
denied, FLRC No. 78A-58, 6 FLRC 812 (1978); Internal Revenue Service,
Odgen Service Center, A/SLMR No. 944, 7 A/SLMR 1032 (1977); Department
of Health, Education and Welfare, Social Security Administration, Bureau
of Retirement and Survivors Insurance, Northeastern Program Service
Center, 1 FLRA No. 59 (1979). Section 7114(a)(2)(A), like its precursor
section 10(e) of Executive Order 11491, as amended, makes no reference
to "changes" in personnel policies and practices or other matters
affecting employees' general working conditions as a precondition to a
labor organization's right to be represented at formal discussions
between management and unit employees with respect thereto. See
Internal Revenue Service, Atlanta District Office, Atlanta, Georgia,
supra, 6 FLRC at 815.
The collective bargaining relationship envisaged by the Statute
requires that each party have the ability to function as an equal
partner within that relationship. United States Air Force, Air Force
Logistics Command, Aerospace Guidance and Metrology Center, Newark,
Ohio, 4 FLRA No. 70 (1980). The exclusive representative, pursuant to
section 7114(a)(1) "is entitled to act for, and negotiate collective
bargaining agreements covering, all employees in the unit." The right of
the exclusive representative to "act for" all unit employees includes
the right, pursuant to section 7121(b)(3), to present and process
grievances on its own behalf and the right of its employee
representatives, pursuant to section 7102(1), "to present the views of
the labor organization to heads of agencies and other officials of the
executive branch of the Government, the Congress, or other appropriate
authorities." Therefore, while Respondent may have viewed the unit
employees' responses concerning personnel policies, practices, or other
general conditions of employment important only to its own evaluation of
management techniques and operational procedures, the Union, as an equal
partner, was entitled to assess the unit employees' responses concerning
such matters in light of its own rights and responsibilities as their
exclusive representative and to act accordingly.
Thus, by its actions in denying the exclusive representative the
unconditional opportunity to be represented at, and represent its
members' interest at, formal discussions under section 7114(a)(2)(A) of
the Statute concerning personnel policies, practices and other general
conditions of employment, during the week of February 4, 1980, the
Respondent violated section 7116(a)(1), (5), and (8) of the Statute.
Department of Health, Education and Welfare, Region IV, Atlanta,
Georgia, supra.
Based on the foregoing findings and conclusions, I recommend that the
authority issue the following Order:
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 United States Department of
Transportation, Federal Aviation Administration, Southwest Region,
shall:
1. Cease and desist from:
(a) conducting formal discussions between one or more
representatives of management and one or more employees in the
unit or their representatives concerning any personnel policies or
practices or other general conditions of employment without giving
the Professional Air Traffic Controllers Organization, the
exclusive representative of its employees, an unconditional
opportunity to be represented at such discussions;
(b) in any like or related manner interfering with,
restraining, or coercing any employee in the exercise of any right
under the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purpose and policies of the Statute:
(a) Give the Professional Air Traffic Controllers Organization
the unconditional opportunity to be represented at any formal
discussion between one or more representatives of management and
one or more employees in its bargaining unit or their
representatives concerning any personnel policy or practices or
other general conditions of employment.
(b) Post at its facilities in the Southwest Region copies of
the attached Notice marked "Appendix" on forms to be furnished by
the Authority. Upon receipt of such forms, they shall be signed
by the Regional Director, Southwest Region, 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 Regional
Director shall take reasonable steps to insure that such notices
are not altered, defaced, or covered by any other material.
(c) Pursuant to 5 C.F.R.Section 2423.30 notify the Regional
Director, Region Six, 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.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: May 19, 1981
Washington, D.C.
APPENDIX
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 conduct formal discussions between one or more
representatives of management and one or more unit employees, or their
representatives, concerning any personnel policies or practices or other
general conditions of employment without giving the Professional Air
Traffic Controllers Organization, the exclusive representative of our
employees, an unconditional opportunity to be represented at such
discussions.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce any employee in the exercise of any right under the Federal
Service Labor-Management Relations Statute.
WE WILL give the Professional Air Traffic Controllers Organization an
unconditional opportunity to be represented at any formal discussion
between one or more representatives of management and one or more
employees of its bargaining unit, or their representatives, concerning
any personnel policies or practices or other general conditions of
employment.
(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, Region Six, Federal Labor Relations Authority, Bryan
and Ervay Street, Old Post Office Building, Room 450, Dallas, Texas
75221. Telephone (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(a)(2)(A) of the Statute provides:
(2) An exclusive representative of an appropriate unit in an agency
shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general conditions of employment . . . .
/2/ In National Aeronautics and Space Administration (NASA),
Washington, D.C. and Lyndon B. Johnson Space Center (NASA), Houston,
Texas, A/SLMR No. 457, FLRC No. 74A-95, 3 FLRC 617 (1975), certain
"information gathering" meetings or interviews between agency
headquarters-level representatives and unit employees at the activity
level were found not to be "formal discussions concerning grievances,
personnel policies and practices, or other matters affecting general
working conditions of employees in the unit," and, accordingly,
management was not required to permit the union to be present at such
meetings pursuant to section 10(e) of Executive Order No. 11491, as
amended. The Council noted, in part, that management "sought to
evaluate the effectiveness of an agencywide program (EEO program) which
existed totally apart from the collective bargaining relationship at the
level of the exclusive recognition."