11:0131(34)CO - PATCO Local 246 and FAA, Air Traffic Control Tower, Philadelphia, PA -- 1983 FLRAdec CO

[ v11 p131 ]
The decision of the Authority follows:

 11 FLRA No. 34
 Charging Party
                                            Case No. 2-CO-32
                        ORDER DISMISSING COMPLAINT
    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
    After the Judge rendered his Decision in this case, the Authority
 issued its Decision and Order 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),
 revoking the exclusive recognition status of the Respondent herein,
 PATCO, for having engaged in strike activity prohibited by section
 7116(b)(7) of the Federal Service Labor-Management Relations Statute
 (the Statute), and finding that PATCO is no longer a labor organization
 within the meaning of the Statute.  The Authority concludes herein that,
 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, the Authority
 shall order that the instant complaint be dismissed as moot.
    IT IS HEREBY ORDERED that the complaint in Case No.2-CO-32 be, and it
 hereby is, dismissed.  
 Issued, Washington, D.C., January 28, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    GEORGE Kerr, Regional Vice-President
          For the Respondent
    John M. Bates, Esq.
          For the General Counsel
          Administrative Law Judge
                           Statement of the Case
    Pursuant to a Complaint and Notice of Hearing issued on September 30,
 1980 by the Regional Director for the Federal Labor Relations Authority,
 Region 2, a hearing was held before the undersigned on December 17, 1980
 at Philadelphia, PA.
    This proceeding, arising under the Federal Service Labor-Management
 Statute, 5 U.S.C.Section 7101 et seq., (herein called the Act), was
 initiated by the Federal Aviation Administration, Air Traffic Control
 Tower, Philadelphia, Pa. (herein called the charging party or FAA).  The
 latter filed a charge On june 16, 1980 against Professional Air Traffic
 Controllers Organization, MEBA/AFL-CIO, Local 245 (herein called the
 Respondent or Union).  Based upon said charge it was alleged in the
 complaint that, since on or about May 10, 1980, Respondent disciplined
 an employee-member of the Union by assessing a fine against him and
 suspending him from Union membership-- all because said individual
 worked overtime and in violation of Section 7116(b)(1) and (3) of the
    Respondent filed an answer, dated November 10, 1980, to the complaint
 herein.  In addition to denying the commission of any unfair labor
 practice, the answer alleged that in imposing a fine the union was
 pursuing its legitimate interests;  and that the matter involved
 internal affairs of the union with no attempt to cause the employee's
 discharge from his employment.
    All parties were represented at the hearing.  They were afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter the parties filed briefs which have
 been duly considered.
    Upon the entire record in this case, from my observation of the
 witnesses and their demeanor, and from all of the testimony and evidence
 adduced at the hearing, I make the following findings, conclusions and
                             Findings of Fact
    1.  At all times material herein Respondent has been, and still is,
 the collective bargaining representative of all air traffic control
 specialists.  GS-2152 series, including flow controllers, are
 specialists, data system specialists, planning and procedures
 specialists employed by the charging party at air traffic control
 towers, air traffic control centers and combined-station-towers.
    2.  The Federal Aviation Administration, Department of Transportation
 and the Professional Air Traffic Controllers Organization, (Marine
 Engineers Beneficial Association - MEBA), AFL-CIO, were, at all times
 material herein, and still are parties to a collective bargaining
 agreement covering the aforesaid unit of employees at the Philadelphia,
 Pa., International Airport.  The said agreement, by its terms, became
 effective on March 15, 1978 for a period of three years.
    3.  Article 40 (OVERTIME) of the aforesaid agreement contains, inter
 alia, the following provisions:
          Section 2.  "Whenever overtime work is to be performed, it
       shall be made available to qualified employees on an equitable
          Section 3.  "An employee assigned to work overtime may secure a
       replacement and, provided the replacement is acceptable to the
       supervisor, will be relieved of the assignment.  If the employee
       is unable to secure a replacement acceptable to the supervisor,
       the employee will work the overtime."
    4.  Article 54 (Effect of Agreement) of the aforesaid agreement
 contains the following provision:
          Section 1.  "Any provision of this agreement shall be
       determined a valid exception to and shall supersede any existing
       FAA rules, regulations, orders and practices which are in conflict
       with the agreement."
    5.  Prior to January, 1980 management had adopted a particular
 procedure in respect to overtime work not scheduled in advance.  The
 need for such overtime, referred to as call-in overtime, arose when a
 controller called his supervisor just prior to or during a watch and
 reported he was taking sick or other leave.  In such an instance the
 supervisor called controllers whose names appeared on a special list and
 who were not at work that day.  Occasionally calls were made at 4:30
 a.m. or 5:00 a.m. to the controller's house.  He requested the
 controller whom he called to volunteer to work the particular day.  If
 no controller volunteered, the supervisor re-called the first employee
 on the list.  The latter, upon being notified that nobody volunteered,
 would offer his services.  Management could assign the overtime work to
 the first controller on the list.  If the said individual did not want
 the assignment, it was his responsibility to find a suitable
    6.  Record facts show there were 20 controllers on the staff, and
 about 13 controllers were needed to operate the positions during a
 fairly busy period.  Prior to January, 1980 no difficulty was
 experienced in obtaining controllers to volunteer for call-in overtime.
 In and around December, 1979 Fred G. Burkins, President of Local 246,
 discussed with management the use of a new policy regarding call-in
 overtime.  The union objected to the fact that controllers who didn't
 want to work overtime were called at 4:00 a.m.  It took the position
 that only those employees indicating a desire to do work overtime should
 be called initially.
    7.  At an Executive Board Meeting of the Union on January 20, 1980
 /1/ a resolution regarding voluntary call-in overtime was proposed for
 submission to the general membership.  Thereafter, on February 13 the
 members passed the following resolution:
          "Whereas the members of PATCO Local 246 are desirous of knowing
       their work schedule in advance and seek schedule versus call-in
       overtime, and
          Whereas said members seek to maintain their privacy on
       scheduled days off, and
          Whereas facility management has shown a disregard for the
       contract and facility orders relating to overtime,
          Therefore be it resolved that the members of Local 246 shall
       not accept call-in overtime, and that violation of this resolution
       shall constitute an action detrimental to the interests of this
       Local and subject the responsible member to disciplinary action as
       provided in the local constitution."
    8.  Management began to encounter difficulty in obtaining controllers
 to work call-in overtime.  At times it operated with three less
 controllers than were required for a particular watch.  As a result of
 discussions between Burkins and John M. Stuck, Deputy Chief of the
 Tower, the union official proposed that management alter the procedure
 regarding call-in overtime.  It was suggested that the employer maintain
 two lists of controllers:  one list containing the names of those
 individuals who wanted call-in overtime work, while the other list
 comprised the names of controllers who did not desire such overtime.
 However, the employer would not agree since it was determined that such
 a procedure would violate Article 40, Section 2 of the collective
 bargaining agreement.
    9.  Air Traffic Control Specialist Ralph A. Cole, who had been so
 employed by the charging party for over seven years, was a member of
 Respondent union.  He was present at the meeting whereat the resolution,
 hereinabove set forth, was passed and was aware of its contents.  On May
 8, Cole received a call from the assistant chief at the Control Tower.
 Cole, who was at home and not on duty that day, was asked to work
 call-in overtime and he volunteered to do so.  Accordingly, the
 controller reported for work on the 7:00 a.m. - 3:00 p.m. watch.
    10.  By letter dated May 10, Respondent notified Cole that he had
 failed to comply with provisions of the National and local unions'
 constitution by engaging in conduct detrimental to the best interests of
 the local.  Specifically, it was claimed by the union that on May 8 Cole
 had appeared for work on the day watch contrary to the call-in overtime
 resolution adopted by the membership.  The letter also apprised Cole
 that a hearing would be held before the Executive Board on May 28
 regarding the charges, and that he has the right to appeal the
 determination of the Board.
    11.  A meeting was accordingly held by the Executive Board on May 28
 at which Cold attended.  The controller admitted that he had worked
 call-in overtime on May 8;  that he was aware of the union's resolution
 regarding call-in overtime but did not agree with it.
    12.  On May 30 Cole was notified by a representative of Respondent
 union that he had been found guilty by the Executive Board of violating
 the resolution against working call-in overtime.  Further, Cole was
 informed that a fine of $125 would be levied against him for such
    13.  By letter dated June 21, Cole advised Respondent that he decided
 not to pay the fine;  that he deemed the union's action against him to
 be an unfair labor practice.
    14.  Union President Burkins wrote a letter notifying Cole that he
 had been fined $125 by the union's Executive Board;  that on July 16 the
 Executive Board met and decided to suspend him from local 246 until he
 complied with its decision;  and that notification of the suspension
 would be sent to the PATCO National, resulting in Cole's suspension from
 that organization.
    15.  In August Burkins called management's attention to a provision
 in the FAA Handbook which permitted employees who so desired to work
 overtime.  Some difficulty was encountered by the parties since the
 bargaining agreement required that overtime be made available to all
 parties.  Moreover under Article 54 of the agreement the contractual
 provisions superseded all orders or regulations of management.  However,
 the parties agreed to accept the Handbook provision and waive the
 contractual requirement.
    16.  By virtue of the foregoing, Management and Respondent consented
 to an arrangement whereby two lists of controllers would be compiled.
 One list included the names of those individuals who desired to work
 overtime, and the other list contained the controllers who did not want
 such work.  This resolved the difficulty regarding call-in overtime
 since the FAA would use the first list when employees had to be called
 to work overtime.
    17.  In view of this arrangement regarding call-in overtime,
 Respondent rescinded the resolution which banned call-in overtime work
 by its members.  Notwithstanding this rescission, Cole still remains
 suspended as a member of Local 245.  /2/ Imposition of the fine has not
 been revoked by Respondent union nor has Cole paid it.
    The case at bar involved, for the most part, a question of law:
 whether Respondent union violated Sections 7116(b)(1) and (3) of the Act
 by fining Cole, and suspending him from union membership, because he
 voluntarily worked call-in overtime contrary to a union resolution
 prohibiting its members to do so.
    Section 7116(b)(3) of the Act provides that it is an unfair labor
 practice for a labor organization:
          "to coerce, discipline, fine, or attempt to coerce a member of
       the labor organization as punishment, reprisal, or for the purpose
       of hindering or impeding the member's work performance or
       productivity as an employee or the discharge of the member's
       duties as an employee."
    Respondent insists that its resolution banning the members from
 working call-in overtime, on a voluntary basis, was passed to preserve
 the integrity of the union.  It contends the ban concerned an internal
 regulation of its own affairs which, in cases arising under the National
 Labor Relations Act, has been held to be protected rights.  Moreover, it
 is averred, the Supreme Court in Scofield v. National Labor Relations
 Board, 394 U.S. 423 (1968) stated that a union is free to enforce a rule
 reflecting its legitimate interest which impairs no policy Congress has
 embedded in labor laws, and is reasonably enforced against its members
 who are free to leave the union and escape the rule.  Since the rule did
 not affect Cole's employment status, Respondent argues it has not
 violated the Act.
    The General Counsel argues that the cases decided in the private
 sector are inapposite in light of the fact that Section 7116(b)(3) is
 entirely different from the prohibition against union discrimination in
 the National Labor Relations Act, and the latter statute does not
 contain a provision similar to 7116(b)(3) herein.  Moreover, the Supreme
 Court leaves a union free to enforce its rules provided they do not, as
 here, impair a policy Congress has embedded in the labor laws.  In the
 instant case the Respondent clearly hindered and impeded Comptroller
 Cole's work performance and productivity by attempting, via the fine and
 suspension, to prevent the employee and others from working call-in
 overtime voluntarily.  Thus its actions do impair congressional policy
 as set forth under 7116(b)(3).  It is further maintained that the
 union's right to enforce discipline, as assured under Section 7116(c) of
 the Act, is not abrogated so long as disciplinary action does not so
 hinder or impede the employee's work performance.  Finally, General
 Counsel contends the employee should not be compelled to resign from the
 union;  that the right of appeal does not legitimize the resolution
 adopted by Respondent.
    A decision involving the identical question presented herein was
 issued on March 13, 1981 by Administrative Law Judge Garvin L. Oliver.
 See Atlanta Center Professional Air Traffic Controllers Organization,
 Local 101, et al. AFL-CIO, Case No. 4-CO-15.  The respondent therein,
 Local 101 PATCO, established a ban on its members accepting voluntary
 call-in overtime work.  Its prohibition stemmed from dissatisfaction
 with the staffing of various shifts, and the union felt management
 should either schedule overtime pursuant to the negotiated agreement,
 /3/ or increase staffing.  A fine was levied by the union in the cited
 case against a controller who accepted voluntary call-in overtime work
 in disregard of the ban.  The Executive Board of Local 101 concluded the
 controller violated its constitution by refusal to abide by the union's
 decision regarding call-in overtime /4/ in that justifiable cause.
    Judge Oliver concluded that the union in the cited case violated
 Sections 7116(b)(1) and (3) of the Act.  He rejected the defense,
 similarly asserted herein, that the union rule pertained to an internal
 matter protected under the Act.  Moreover, he stated that Section
 7116(b)(3) was intended to protect union members from acts which
 interfere with their work performance, productivity, or the discharge of
 the member's duties as an employee.
    For the reasons, inter alia, expressed by Judge Oliver in the
 aforesaid decision I likewise conclude that Respondent herein violated
 Sections 7116(b)(1) and (3) of the Act.  Apart from the fact that the
 National Labor Relations Act does not contain language akin to
 7116(b)(3), the union herein has, by its action, flouted a policy set
 forth by Congress in the labor law.  This policy, as enunciated in this
 Act, is to prohibit the labor organization from hindering or impeding an
 employee's work performance.  The fine levied herein does, in my
 opinion, constitute such hindrance and interference.  Further, I reject
 the argument that, since Cole could have appealed the Executive Board's
 decision or resigned from the union, Respondent's actions may not be
 deemed coercive.  These alternatives do not vitiate the interference nor
 negate the fact that the union's conduct impeded work performance or
 productivity of employees.  Accordingly, I conclude that the suspension
 of Ralph A. Cole from Respondent union, and the imposition of a fine
 upon him, was violative of Sections 7116(b) (1) and (3), of the Act.
    Having found and concluded that Respondent violated Sections
 7116(b)(1) and (3) of the Act, it is recommended that 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, the
 Authority hereby orders that the Professional Air Traffic Controllers
 Organization, MEBA/AFL-CIO, Local 246, shall:
    1.  Cease and desist from:
          (a) Coercing or disciplining Ralph A. Cole, or any other member
       of Professional Air Traffic Controllers Organization,
       MEBA/AFL-CIO, Local 246 for the purpose of hindering or impeding
       Ralph A. Cole or the member's work performance, productivity, or
       the discharge of his duties as an employee, by fining or
       suspending from membership in Professional Air Traffic Controllers
       Organization, MEBA/AFL-CIO, Local 246, Ralph A. Cole, or any other
       member in that labor organization, because he accepted and worked
       call-in overtime.
          (b) In any like or related manner interfering with, restraining
       or coercing employees in the exercise of their rights assured by
       the Federal Service Labor-Management Relations Statute.
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
          (a) Rescind and nullify the decision and determination by the
       Executive Board of Professional Air Traffic Controllers
       Association MEBA/AFL-CIO, Local 246, that Ralph A. Cole is guilty
       of violating a resolution which prohibited all members of the
       union from accepting and working call-in overtime.
          (b) Rescind and cancel the fine levied by the Executive Board
       of Professional Air Traffic Controllers Association,
       Local 246 upon Ralph A. Cole for having accepted and worked
       call-in overtime and notify him in writing of such action.
          (c) Upon request, restore and reinstate Ralph A. Cole to full
       membership in Professional Air Traffic Controllers Association,
       MEBA/AFL-CIO, Local 246 upon payment by him to the union of any
       outstanding back dues.
          (d) Post at its business offices and in normal meeting places,
       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 an appropriate representative and shall be
       posted for 60 consecutive days thereafter, in conspicuous places,
       including all bulletin boards and other places where notices to
       members are customarily posted.  Reasonable steps shall be taken
       to insure that such notices are not altered, defaced or covered by
       any other material.
          (e) Pursuant to section 2423.30 of the Authority's rules and
       regulations, notify the Regional Director, Region 2, Federal Labor
       Relations Authority, in writing, within 30 days from the date of
       the Order, as to what steps have been taken to comply herewith.
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 Dated:  April 7, 1981
         Washington, D.C.
                          NOTICE TO ALL EMPLOYEES
    WE WILL NOT coerce or discipline Ralph A. Cole, or any other member
 of Professional Air Traffic Controllers Organization, MEBA/AFL-CIO,
 Local 246, for the purpose of hindering or impeding Ralph A. Cole or the
 member's work performance, productivity, or the discharge of his duties
 as an employee, by fining or suspending from membership in Professional
 Air Traffic Controllers Organization, MEBA/AFL-CIO, Local 246, Ralph A.
 Cole, or any other member in that labor organization, because he
 accepted and worked call-in overtime.
    WE WILL NOT, in any like or related manner, interfere with, restrain
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
    WE WILL rescind and nullify the decision and