11:0036(18)CO - Transportation, FAA, Southwest Region and PATCO -- 1983 FLRAdec CO



[ 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)