11:0144(35)CO - Atlanta Center PATCO, Local 101 and Transportation, FAA, Atlanta Air Route Traffic Control Center -- 1983 FLRAdec CO
[ v11 p144 ]
The decision of the Authority follows:
11 FLRA No. 35 ATLANTA CENTER PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, AFL-CIO, LOCAL 101 Respondent and U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, ATLANTA AIR ROUTE TRAFFIC CONTROL CENTER Charging Party Case No. 4-CO-15 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 and the General Counsel filed exceptions to the Judge's Decision. 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. 1983), 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. ORDER IT IS HEREBY ORDERED that the complaint in Case No. 4-CO-15 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 -------------------- David E. Siegel For the Respondent Barbara S. Liggett, Esquire James R. Puhger, Esquire For the General Counsel Alan M. Mendel For the Charging Party 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 4, Federal Labor Relations Authority, Atlanta, Georgia, against the Atlanta Center Professional Air Traffic Controllers Organization, Local 101, Professional Air Traffic Controllers Organization, affiliated with Marine Engineers Beneficial Association, PATCO-MEBA, AFL-CIO (Union or Respondent), based on a charge filed by the U.S. Department of Transportation, Federal Aviation Administration, Atlanta Air Route Traffic Control Center (Charging Party or Agency). The Complaint alleged, in substance, that Respondent threatened an employee member with reprisal for having worked call-in overtime and, thereby, interfered with, restrained, or coerced the employees of the Agency in the exercise of the right, guaranteed by U.S.C. 7102, to refrain from assisting a labor organization, in violation of 5 U.S.C. 7116(b)(1). The Complaint further alleged that a threat to impose a fine in an attempt to coerce an employee to refrain from working overtime, and the threat to punish an employee for accepting such work, was for the purpose of impeding that employee member's work performance, productivity, or discharge of duties as an employee, and was therefore violative of 5 U.S.C. 7116(b)(3). Respondent's Answer denied any violation of the Statute, but admitted that Respondent adopted a policy of having its members decline to work call-in overtime, which, it alleged, was a type of overtime that was optional with the employee and did not involve an order to perform work. Respondent further admitted that it informed an employee that because of his violation of the policy, charges were being preferred against him to Respondent's local executive board. A hearing was held in this matter in Atlanta, Georgia. /1/ The Respondent, General Counsel, and Charging Party were represented 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. Respondent is the exclusive representative of an appropriate unit of employees, including air traffic controllers at the Agency. Air traffic controllers at the Agency are assigned to six different areas: North, South, East, West, Northeast, and Southwest. Within each area, air traffic controllers are further subdivided into teams. (Tr. 13, 14, 26). 2. During the summer of 1979, air traffic controllers at the Agency, and especially those controllers assigned to the Northeast area, voiced complaints to the Union concerning the level of staffing. Controllers complained that the watch schedules posted for June, July, and August of 1979 showed an insufficient number of controllers being scheduled to work; that management, instead of scheduling overtime in advance, would wait until the day it was needed and then use call-in overtime in an effort to fill controller positions; that since call-in overtime was voluntary, insufficient positions were being filled; that this required controllers to double up on position assignments and made it difficult for them to take coffee, lunch, and relief breaks; that it would be easier on the controllers if management scheduled the overtime in advance with the option for employees assigned overtime to secure suitable replacements, if necessary. (Tr. 15-16, 21-22, 41-46). 3. The parties' collective bargaining agreement provided for making overtime available on an equitable basis and for its assignment, in part, as follows: ARTICLE 40 - OVERTIME . . . Section 2. Whenever overtime work is to be performed it shall be made available to qualified employees on an equitable basis. 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. (General Counsel's Ex. 4, p. 57). 4. Rather than assigning overtime pursuant to the collective bargaining agreement, the practice of the Agency was to have its supervisors determine the minimum staffing level needed for each shift, based primarily on the amount of traffic and the skill levels of individual controllers, and if that number was greater than the number of controllers scheduled for a shift, to use call-in overtime to secure the necessary personnel. Controllers were called in turn, beginning with the individual who had worked the last number of hours of overtime. Controllers were free to accept or decline such call-in overtime provided, in part, that, "A specialist declining to work overtime is considered on an equal status with a specialist working overtime." (General Counsel's Ex. 5). 5. Until mid-July 1979 the Union met with Agency management on a weekly, and sometimes daily, basis to discuss staffing and other problems. The Union requested that management schedule overtime. Management replied that it recognized the problem, but would not schedule overtime. (Respondent's Ex. 3). 6. On July 18, 1979, the executive board of the Union determined that "(s)taffing has created an adverse condition in the facility and call-in overtime is a poor substitute for the condition." The executive board voted to adopt a policy "to promote the reduction of participation in call-in overtime, until management schedules overtime within the formation of the basic watch schedule or increases the facility staffing with additional controllers from any source available." (General Counsel's Ex. 3(e)). Controllers were not to voluntarily accept call-in overtime; however, if controllers were ordered to work overtime, they were to do so, and no insubordination by a controller ordered to work overtime would be condoned. (Tr. 20; 47). 7. On July 26, 1979, Charles E. McGregor, a controller in the Northeast area and a Union member, was informed by Kerry D. Floyd, the Union representative for Team 3 in the Northeast area, of the Union's policy on call-in overtime and agreed to participate. (General Counsel's Ex. 3(c); Tr. 16, 20, 22). Subsequently, however, on August 8, 1979 McGregor responded to a request by a supervisor to work call-in overtime and, in fact, worked a full eight hour evening shift as a personal favor to the supervisor. (Tr. 16; 48). 8. On August 13, 1979, at a meeting between the Agency and Respondent, the Agency's deputy chief, Walter E. Denley, brought up the subject of call-in overtime and the problem that supervisors were having getting controllers to accept call-in overtime. Union president Timothy D. Benincosa confirmed that the controllers had agreed not to accept call-in overtime, particularly in the Northeast area. Denley responded by saying that, in that case, the Agency could not continue its past practice of calling and offering overtime to each person on the overtime list and would revert back to the contract provision and assign the overtime. (Tr. 27-30). 9. The next day, August 14, 1979, as a result of the Agency's assignment of overtime to controllers, the Union requested another meeting with the Agency to discuss overtime staffing. Agency and Union representatives subsequently met, discussed the staffing in the Northeast area as reflected on August and September schedules, and reached an understanding that the Northeast area would be staffed with an acceptable number of controllers to cover the necessary vacancies. As a result, the Union terminated its policy on August 15, 1979 and announced to its members that call-in overtime would again be accepted. (Tr. 30-31; 51-52). 10. On August 20, 1979, the Union's Northeast area representative, Henry R. Elliott, charged McGregor with a violation of Article IX, Section 1, Part (a) of the Union's Constitution /2/ by working overtime on August 8, 1979 without justifiable cause. (General Counsel's Ex. 3(a); Tr. 17, 48-49). The Union's executive board, following a hearing, determined that McGregor had violated the Article and would be fined the amount of overtime pay he had received for working the overtime shift. (Tr. 19; 50-51). 11. On September 3, 1979, McGregor submitted a completed Standard Form 1188 (General Counsel's Ex. 2) to the Agency, revoking his authorization for deduction of dues and remittance to the Union. The revocation was not effective until March 1980. (Tr. 13; 19). Sometime after submitting his Standard Form 1188, McGregor was advised by the Union that the fine would not be enforced since he was no longer a Union member. (Tr. 19). 12. On October 18, 1979, McGregor's name was mentioned in the course of a meeting between The Agency and the Union. The Union's vice president, Don Kovacs, stated that McGregor was "the scab who accepted overtime. He dropped out of the Union when we threatened to sanction him." (Tr. 33; 39). Discussion, Conclusions, and Recommendations Section 7102 of the Statute guarantees to each employee of the Federal Government the right, freely and without fear of penalty or reprisal, to form, join, and assist a labor organization, or to refrain from any such activity, and to be protected in the exercise of such right. A labor organization's interference with these rights is violative of section 7116(b)(1). The General Counsel alleges that the Union violated Mr. McGregor's right to refrain from assisting a labor organization when it threatened to fine him for having worked call-in overtime contrary to Union policy. The Union denies any violation; asserts that Union member McGregor was properly subject to Union discipline for violating a Union rule requiring members to first decline to work voluntary call-in overtime; that the rule was adopted to protect the integrity of the bargaining unit, prevent Union members from being on the side of the employer in a time of difficulty or tension, and avoid divided loyalty; and that McGregor was free to leave the Union and escape the rule. Section 7116(c) of the Statute, which makes it an unfair labor practice for an exclusive representative to deny membership except for failure to meet reasonable occupational standards or to tender dues uniformly required, also states: This subsection does not preclude any labor organization from enforcing discipline in accordance with procedures under its constitution or bylaws to the extent consistent with the provisions of this chapter. This subsection permits a union to enforce discipline as an internal union matter where its legitimate internal union affairs are concerned. American Federal of Government Employees, AFL-CIO, Local 2000 and Wilder M. Nixon, 6-CO-17, decision of Judge William B. Devaney (August 13, 1980) (and cases cited therein). Such discipline must be "consistent with the provisions of this chapter" and not impair some statutory labor policy. Cf. Scofield v. NLRB, 394 U.S. 423 (1969). Congress found, as stated in section 7101(a) of the Statute, that "Labor organizations and collective bargaining in the civil service are in the public interest." It is apparent from the specific language of sections 7114(a)(1), 7114(b)(3), and 7103(a)(12) of the Statute that a labor organization which is an exclusive representative of the employees in an appropriate unit is entitled to negotiate collective bargaining agreements for employees it represents and that an agency and exclusive representative have a mutual obligation to negotiate in good faith in an effort to reach agreement with respect to conditions of employment affecting employees in an appropriate unit. The obligation to negotiate would be rendered meaningless if a party were able to unilaterally change established conditions of employment without first affording the other party notice of the proposed changes and an opportunity to negotiate. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 5 FLRA No. 2 (1981). The record reflects that, rather than using scheduled overtime under the negotiated agreement, it was an established past practice for the Agency to use call-in overtime to supplement the staffing of its various shifts and for personnel called to make an individual personal decision whether or not to accept or decline such call-in overtime. The record further reflects that the Union, because of employee complaints, became dissatisfied with the level of staffing of the various shifts and felt that management, in order to properly deal with the adverse working conditions, should either schedule overtime, presumably pursuant to the negotiated agreement, or increase staffing. However, instead of continuing negotiations pursuant to the statutory scheme, /3/ the Union established a ban on its members acceptance of call-in overtime. This change in past practice, instituted without notice to the Agency, or affording it an opportunity to negotiate constituted a unilateral change in established terms and conditions of employment and a breach of the Union's bargaining obligation under the Statute. /4/ Thus, the Union rule was not consistent with the provisions of the Statute. The General Counsel alleges that the Union's rule requiring members to refrain from accepting voluntary call-in overtime was not a protected activity, because it was inconsistent with the statutory policy, embodied in section 7116(b)(3) of the Statute, /5/ against hindering and impeding a member's work performance, productivity, or discharge of duties. I agree. If a member cannot accept voluntary work opportunities, his work performance or productivity in this respect would be completely blocked. The Statute is designed to prevent this. The Statute makes no distinction as to the status of the employee, and it makes no difference whether the work performance and productivity so hindered or impeded would occur in the course of voluntary overtime, or as part of the member's regular tour of duty. Inasmuch as the Union's ban on the voluntary acceptance of overtime was inconsistent with the provisions of the Statute, its attempt to enforce the ban against Mr. McGregor cannot be deemed an enforcement of discipline for violation of a lawful union rule dealing with purely internal union matters under section 7116(c). Accordingly, it was violative of section 7116(a)(1) as Respondent Union interfered with Mr. McGregor's right to refrain from assisting a labor organization. Alleged 7116(b)(3) violation. The General Counsel alleges that the Union violated section 7116(b)(3) of the Statute by attempting to fine Mr. McGregor for working call-in overtime contrary to Union policy. The Respondent Union contends that its policy was directed only against voluntary acceptance of call-in overtime on the part of its members; that members could refuse such overtime under the established procedure; that management was free to mandatorily assign overtime; that the Union never suggested that members should refuse work if ordered; and that the Union's attempt to fine Mr. McGregor for not first declining to work voluntary call-in overtime in no way hindered or impeded his work performance, productivity, or the discharge of his duties as an employee. The record reflects that the threat to fine McGregor came after his acceptance of the offer to work voluntary call-in overtime and his actual performance of that work. Whether an attempt to fine him would have been made if he had merely accepted the offer to work voluntary call-in overtime, without actually working it, for whatever reason, we do not know. It is clear, though, that the fine in question was closely connected with his actual performance of the work. It was specifically charged that McGregor "without justifiable cause performed overtime duty on the evening watch on August 8, 1979." The record indicates that "without justifiable cause" meant that he was not actually ordered, or mandatorily assigned to perform the overtime. However, as noted, the fact that the work was performed voluntarily does not matter. By basing the threat to fine him on his performance of overtime duty, Respondent Union violated section 7116(b)(3). Such threat constituted an attempt to coerce a member of a labor organization as punishment or reprisal for the member's work performance or productivity as an employee or the discharge of the member's duties as an employee. Section 7116(b)(3) of the Statute is intended to protect union members from any act by a labor organization which in any way interferes with the member's work performance, productivity, or the discharge of the member's duties as an employee. Cf. Professional Air Traffic Controllers Organization, MEBA, AFL-CIO, A/SLMR No. 878, 6 FLRC 107 (1978). Having found and concluded that Respondent violated sections 7116(b)(1) and (3) of the Statute, it is recommended 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 Atlanta Center Professional Air Traffic Controllers Organization, Local 101, Professional Air Traffic Controllers Organization, Affiliated with Marine Engineers Beneficial Association, (PATCO-MEBA), AFL-CIO, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing Charles E. McGregor, or any other employee in the exercise of the right assured by the Statute to refrain from assisting a labor organization. (b) Coercing, disciplining, fining, or attempting to coerce Charles E. McGregor, or any other 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 duties as an employee. (c) 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.