14:0644(89)CA - FAA Northwest Mountain Region, Seattle, WA and FAA Washington, DC and PASS -- 1984 FLRAdec CA



[ v14 p644 ]
14:0644(89)CA
The decision of the Authority follows:


 14 FLRA No. 89
 
 FEDERAL AVIATION ADMINISTRATION
 NORTHWEST MOUNTAIN REGION
 SEATTLE, WASHINGTON
 
 and
 
 FEDERAL AVIATION ADMINISTRATION
 WASHINGTON, D.C.
 Respondent
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS
 SPECIALISTS
 Charging Party
 
                                            Case Nos. 9-CA-20280 
                                                      9-CA-20410
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled consolidated proceeding, finding that the Respondent had
 engaged in certain unfair labor practices alleged in the complaints, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Thereafter, the Respondent, the General
 Counsel and the Charging Party filed exceptions to the Judge's Decision;
  the General Counsel and the Charging Party both filed oppositions to
 the Respondent's exceptions;  and the Charging Party additionally filed
 cross-exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order, as modified below.
 
    The complaint in Case No. 9-CA-20280 alleges that the Respondent,
 Federal Aviation Administration (FAA), through its agents at the Seattle
 Radar Data Communications Unit, violated section 7116(a)(1) and (5) of
 the Statute by unilaterally implementing a change in the practice of
 holiday staffing without affording the Professional Airways Systems
 Specialists (PASS) the opportunity to negotiate on the impact and
 implementation of the change.  In Case No. 9-CA-20410, the complaint
 alleges the same violation based on the Respondent's failure to provide
 PASS with advance notice and an opportunity to negotiate prior to the
 implementation of a change in holiday staffing at the Auburn Airways
 Facilities Sector.
 
    The facts set forth in the attached Judge's Decision are undisputed.
 Briefly stated, PASS was certified in December 1981 as the exclusive
 representative for a unit of employees including those located at the
 Seattle and Auburn facilities involved herein.  Prior to that time, the
 employees had been represented by the Federal Aviation Science and
 Technological Association (FASTA) which had negotiated an agreement with
 the FAA in 1977 for a two-year period.  That agreement was automatically
 renewed by its terms following the expiration date.
 
    Prior to May 1982, the holiday staffing practice at both the Seattle
 and Auburn facilities was that if a holiday fell within an employee's
 rotating shift or "basic watch schedule," the employee was expected to
 work on the holiday and would receive additional compensation for that
 day.  In early March 1982, the Respondent at the Seattle Radar Data
 Communications Unit informed the local PASS representative that, due to
 fiscal restraints, only one employee per shift would henceforth be
 scheduled to work on holidays.  Previously, several shifts, including
 those on which a holiday occurred, were staffed by more than one
 employee.  In response to PASS' request for bargaining, the local
 representative was advised that he had been properly "consulted"
 concerning the staffing change in accordance with Article 54, Section 2
 of the expired FASTA agreement.  /1/ The new watch schedule which
 reflected the reduced holiday staffing was posted in March and the first
 holiday affected by the reduction occurred on May 31, 1982.  At the
 Auburn facility, management informed the local PASS president and also
 notified unit employees on May 3, 1982, of the reduced holiday staffing
 and subsequently advised PASS, in response to the latter's written
 objections, that management had consulted in good faith in accordance
 with the provisions of the FASTA agreement.  As in Seattle, the first
 holiday affected by the new staffing practice occurred in late May,
 1982.
 
    The Judge found, contrary to the Respondent's assertion that its
 bargaining obligation was limited to consultation over the change in
 holiday staffing, that PASS was not bound by the waiver provision
 negotiated by FASTA and contained in Article 54 of the expired FASTA-FAA
 agreement.  Rather, he found that the Respondent was obligated to
 provide PASS with prior notice and an opportunity to bargain over the
 impact and implementation of changes in the holiday staffing practice.
 Accordingly, the Judge concluded that the Respondent's failure to
 properly notify PASS at both facilities and afford it an opportunity to
 negotiate pursuant to section 7106(b)(2) and (3) of the Statute, /2/
 prior to the implementation of the changes in holiday staffing, violated
 section 7116(a)(1) and (5) of the Statute.
 
    In reaching his conclusion, the Judge found that Article 54 of the
 FASTA agreement did not create a specific condition of employment which
 continued following the expiration of the agreement and the change in
 the employees' exclusive representative.  He thus distinguished the
 instant case from previous Authority decisions in which it was held that
 existing personnel policies, practices, and matters affecting working
 conditions continue to the maximum extent possible, upon the expiration
 of a negotiated agreement, absent an express agreement to the contrary
 or unless modified in a manner consistent with the Statute, even where
 there has been a change in exclusive representatives.  U.S. Nuclear
 Regulatory Commission, 6 FLRA No. 9 (1981).  See also Department of the
 Air Force, 35th Combat Support Group (TAC), George Air Force Base,
 California, 4 FLRA 22 (1980), and Department of Defense, Department of
 the Navy, Naval Ordnance Station, Louisville, Kentucky, 4 FLRA 760
 (1980).  The Judge determined that general agreement provisions
 restricting or modifying the collective bargaining system provided for
 in the Statute, such as that contained in Article 54, do not create
 conditions of employment which remain binding following the expiration
 of that agreement and a change in exclusive representative, whereas
 contract provisions which establish or define specific conditions of
 employment such as those identified in the above-cited decisions would
 continue following the expiration of an agreement.
 
    As noted by the Judge, the Authority has previously addressed whether
 conditions of employment contained in a negotiated agreement continue
 following the expiration of that agreement.  Thus, in George Air Force
 Base (involving negotiated grievance-arbitration procedures), Naval
 Ordnance Station, Louisville (involving the composition of a joint
 union-management safety committee and promotion practices and
 procedures), and Nuclear Regulatory Commission (involving the union's
 use of bulletin boards), the Authority determined that the established
 personnel policies, practices, and matters affecting working conditions
 in question continued, to the maximum extent possible, following the
 expiration of each agreement, in the absence of either an express
 agreement to the contrary or the modification of those conditions of
 employment in a manner consistent with the Statute.  In so concluding,
 the Authority noted-- and expressly reaffirms herein-- that such a
 result fosters stability in Federal labor-management relations, which is
 an underlying purpose of the Statute.
 
    In each of these cases, the conditions of employment which were
 required to be maintained were conditions established pursuant to the
 parties' mutual obligation to negotiate over "mandatory" subjects of
 bargaining.  The Authority has not yet considered whether these
 requirements with regard to the maintenance of existing conditions of
 employment which were established pursuant to the parties' mutual
 obligation to negotiate over "mandatory" subjects of bargaining as in
 the above-cited decisions, apply also to "permissive" subjects of
 bargaining-- i.e., those matters which are excepted from the obligation
 to negotiate by section 7106(b)(1) of the Statute, /3/ and to those
 matters which are outside the required scope of bargaining under the
 Statute.  We conclude that they do not.  Thus, where management elects
 to negotiate concerning any matter covered by section 7106(b)(11, and
 the parties reach agreement thereon, upon the expiration of that
 negotiated agreement either party retains the right to unilaterally
 terminate the practice embodied in such a provision.  Similarly, where
 the parties reach agreement on a matter which is outside the required
 scope of bargaining under the Statute, /4/ the Authority concludes that
 either party may elect not to be bound thereby upon the expiration of
 that agreement.  /5/ In other words, either party may reassert its right
 not to negotiate with regard to the "permissive" subject of bargaining
 in question once the applicable agreement has expired.  In reaching this
 result, the Authority notes that where parties have elected to bargain
 over "permissive" subjects of bargaining and have reached agreement
 thereon, stability in Federal labor-management relations can be achieved
 by requiring both parties to adhere to those terms during the life of
 the parties' agreement while preserving each party's right to terminate
 practices embodied in the agreement upon its expiration.  Such a result
 is also consistent with Congressional intent that in any subsequent
 negotiations, either party may elect not to bargain over permissive
 subjects.
 
    In the instant case, the Authority finds that Article 54, Section 2
 of the FASTA agreement which contained a waiver by FASTA of certain of
 its bargaining rights constituted a permissive subject of bargaining.
 As such, while the provision was binding on the parties during the life
 of their agreement, it was terminated by either party once that
 agreement expired.  Thus, when the FASTA agreement expired and PASS
 replaced FASTA as the employees' exclusive representative, PASS was
 entitled to terminate Article 54, Section 2 of the agreement, as it here
 sought to do by indicating that it no longer wished to be bound by such
 provision but desired instead to exercise its bargaining rights as the
 exclusive representative of unit employees.  When management at the
 Seattle and Auburn facilities then decided to change the practice
 concerning holiday staffing, it was obligated to fulfill its bargaining
 obligations under the Statute and could no longer insist upon the
 continuation of the waiver provision which contained a limitation on its
 bargaining obligation.  Inasmuch as the change in holiday staffing
 concerned a matter falling within the ambit of management rights under
 7106(b)(1) of the Statute (supra, n. 3), as conceded by the parties, /6/
 management was required to provide advance notice to PASS of such
 decision and afford it an opportunity to negotiate concerning the impact
 and implementation of the change.  The record reveals, and the Judge
 found, that the Respondent failed to fulfill its bargaining obligation
 in this regard.  Accordingly, in agreement with the Judge, the Authority
 finds that the Respondent's conduct violated section 7116(a)(1) and (5)
 of the Statute.
 
    In remedying the unfair labor practice conduct found herein, the
 Authority adopts the Judge's conclusion, for the reasons stated in his
 Decision, that a status quo ante order requiring rescission of the
 Respondent's changes in holiday staffing at both the Seattle and Auburn
 facilities is warranted in the circumstances of this case.  See Federal
 Correctional Institution, 8 FLRA No. 111 (1982).  The Authority further
 adopts the Judge's denial of requests by the General Counsel and PASS
 for a backpay remedy as to unit employees who purportedly would have
 received additional compensation for holidays worked.  The Authority has
 previously held that in order for a backpay order to be authorized under
 the Back Pay Act, 5 U.S.C. 5996, there must be a determination that not
 only has an employee been adversely affected by an unjustified or
 unwarranted personnel action, but also that but for the improper action
 such employee would not have suffered a loss or reduction in pay,
 allowances, or differentials.  See, e.g., Action and Action Employees
 Union, AFSCME, Local 2027, 11 FLRA No. 89 (1983) and American Federation
 of Government Employees, Local 1395 and Department of Health and Human
 Services, Social Security Administration, 10 FLRA No. 5 (1982).  Under
 section 7118(a)(7)(C) of the Statute, such requirements apply to backpay
 orders issued by the Authority in unfair labor practice proceedings.
 See Department of the Air Force, Air Force Systems Command, Electronic
 Systems Division, 14 FLRA No. 63 (1984).  In the circumstances of this
 case, where it cannot be established that, but for the Respondent's
 unlawful refusal to bargain over the impact and implementation of the
 change in holiday staffing, employees would have worked on various
 holidays and therefore would not have suffered a loss of compensation,
 the Authority concludes that a backpay order is not warranted.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Federal Aviation Administration, Northwest Mountain Region,
 Seattle, Washington, and the Federal Aviation Administration,
 Washington, D.C., shall:
 
    1.  Cease and desist from:
 
    (a) Changing the holiday staffing practices at the Seattle Radar Data
 Communications Unit and the Auburn Airways Facilities Sector, without
 first notifying the Professional Airways Systems Specialists, the
 employees' exclusive representative, and affording it an opportunity to
 bargain concerning the impact and implementation of such changes.
 
    (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 Statute:
 
    (a) Rescind the changes in the holiday staffing practice at the
 Seattle Radar Data Communications Unit and the Auburn Airways Facilities
 Sector, which changes were effectuated in May, 1982, and restore the
 pre-existing practice at both facilities.
 
    (b) Notify the Professional Airways Systems Specialists of any
 intended changes in the holiday staffing practice at the Seattle Radar
 Data Communications Unit and the Auburn Airways Facilities Sector and
 afford it an opportunity to request bargaining concerning the impact and
 implementation of such changes.
 
    (c) Post at its facilities at the Seattle Radar Data Communications
 Unit and the Auburn Airways Facilities Sector, copies of the attached
 Notice on forms to be furnished by the Federal Labor Relations
 Authority.  Such forms shall be signed by the head of the Northwest
 Mountain Region, or his designee, and shall be posted and maintained for
 60 consecutive days thereafter, in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken to ensure that such
 Notices are not altered, defaced, or covered by any other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IX, 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.  
 
 Issued, Washington, D.C ., May 17, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  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 change the holiday staffing practices at the Seattle
 Radar Data Communications Unit and the Auburn Airways Facilities Sector
 without first notifying the Professional Airways Systems Specialists,
 the employees' exclusive representative, and affording it an opportunity
 to bargain concerning the impact and implementation of such changes.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL rescind the changes in the holiday staffing practice at the
 Seattle Radar Data Communications Unit and the Auburn Airways Facilities
 Sector, which changes were effectuated in May, 1982, and restore the
 pre-existing practice at both facilities.
 
    WE WILL notify the Professional Airways Systems Specialists of any
 intended changes in the holiday staffing practice at the Seattle Radar
 Data Communications Unit and the Auburn Airways Facilities Sector and
 afford it an opportunity to request bargaining concerning the impact and
 implementation of such changes.
                                       (Activity)
 
 Dated:  . .  .  By:  (Signature) (Title)
 
    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 its provisions, they may communicate directly with the Regional
 Director, Region IX, Federal Labor Relations Authority, whose address
 is:  530 Bush Street, Room 542, San Francisco, California 94108 and
 whose telephone number is:  (415) 556-8106.
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case Nos. 9-CA-20280, 9-CA-20410
 
    Mr. J. Donald Payne
    Mr. Gary Baldwin
       For the Respondent
 
    Joseph E. Kolick, Esquire
       For the Charging Party
 
    Stefanie Arthur, Esquire
       For the General Counsel
 
    Before:  GARVIN LEE OLIVER
      Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns two unfair labor practice complaints issued by
 the Regional Director, Region Nine, Federal Labor Relations Authority,
 San Francisco, California against the Federal Aviation Administration,
 Northwest Mountain Region, Seattle, Washington and Federal Aviation
 Administration, Washington, D.C. (Respondent or FAA) based on charges
 filed by the Professional Airways Systems Specialists (Charging Party or
 Union).  The complaints alleged essentially identical violations:  that
 Respondent, through its agents at the Seattle Radar Data Communications
 Unit and the Auburn Airway Facilities Sector, unilaterally changed the
 holiday staffing policy/practice at each facility, without providing the
 Union notice and/or the opportunity to bargain concerning the impact and
 implementation of the change prior to its implementation, in violation
 of Sections 7116(a)(1) and (5) of the Federal Service Labor-Management
 Relations Statute, 5 U.S.C. 7101 et seq. (the Statute).
 
    In its Answers, Respondent denied that it engaged in any unfair labor
 practices and interposed substantially identical defenses:  Respondent
 admitted that the changes occurred, but contends that the issue of
 holiday staffing is a matter bargainable only at the election of the
 agency under 5 U.S.C. 7106(b)(1).  Respondent contends that the matter
 at issue does not constitute a past practice requiring negotiation prior
 to any change, but a management practice subject to unilateral change by
 the agency.  In addition, Respondent contends that, even if there were a
 change in past practice over which it had an obligation to bargain, the
 right to bargain over such changes has been clearly and unequivocally
 waived in the collective bargaining agreement with the prior exclusive
 representative which has continued in effect.  Respondent contends that
 the agency's sole obligation is to consult prior to any such change, and
 that it satisfied its obligation in each case.  At the hearing,
 Respondent also defended on the grounds that it had, in fact, met any
 obligation to bargain on impact and implementation.
 
    A hearing was held in Seattle, Washington.  The Respondent, Charging
 Party, and the General Counsel were represented and afforded full
 opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  The parties
 filed very helpful briefs, and their proposed findings have been adopted
 where found supported by the record as a whole.  Based on the entire
 record, /7/ including my observation of the witnesses and their
 demeanor, I make the following findings of fact, conclusions of law, and
 recommendations.
 
                             Findings of Fact
 
 Background
 
    On December 31, 1981, following an election conducted under the
 supervision of the Regional Director of Region 3 of the Federal Labor
 Relations Authority, the Union, Professional Airways Systems Specialists
 (PASS), was certified as the exclusive representative of a Nationwide
 unit of Federal Aviation Administration (FAA) employees in the Airways
 Facilities Division.  Included in this unit are electronic technicians
 employed at the Auburn Airway Facilities Sector, located in the Auburn
 Air Route Traffic Control Center, and employees in the Seattle Radar
 Data Communications Unit, Seattle Airway Facilities Sector (G.C. Exs.
 1(f), (k);  2(f), (g);  3;  R. Ex. 2).
 
    Prior to this time, this unit had been represented by the Federal
 Aviation Science and Technological Association, National Association of
 Government Employees (FASTA).  The FAA and FASTA had negotiated a
 collective bargaining agreement effective December 1, 1977, which was
 still in effect when PASS became the employees' representative.  The
 agreement provided, in pertinent part, as follows:
 
          Article 7 - Rights and Responsibilities of Union
       Representatives
 
                                .  .  .  .
 
          Section 2.
 
                                .  .  .  .
 
          (d) The Union may designate one representative and one
       alternate for each sector field office, radar unit, communication
       unit, data unit, navaids unit, environmental support unit, and
       combination unit, to deal with first and second level supervisors
       at non-air traffic control center sectors.
 
          Section 3.  In addition, the Union may designate one sector
       representative at each airway facilities sector.  The designation
       shall be in writing.  At the sector representative's option,
       he/she may designate, in writing, an alternate to act for him/her
       when he/she is absent.  Only the sector representative, or in
       his/her absence the designated alternate, may deal with the sector
       manager and/or his/her designee.  During any meeting where the
       sector manager is accompanied by other management representatives,
       the sector representative may be accompanied by his/her designated
       alternate or other representatives so as to allow the Union the
       same number of participants at the meeting.
 
                                .  .  .  .
 
          Article 40 - Holidays
 
                                .  .  .  .
 
          Section 3.  To the extent that operational requirements permit,
       employees scheduled to work on actual established legal holidays
       or days observed in lieu of such holidays shall be given such day
       off if they so request.
 
          Section 4.  A list of employees assigned to work legal holidays
       and days in lieu of holidays shall be posted at least twenty-one
       (21) days in advance, and these assignments, once posted, will not
       be deleted without consent of the employees involved.
 
                                .  .  .  .
 
          Article 54 - Changes In The Agreement
 
          Section 1.  The Parties agree to negotiate prior to
       implementing changes in personnel policies, practices and matters
       affecting working conditions which are within the scope of the
       Employer's authority when those changes are in conflict with this
       agreement.
 
          Section 2.  The Parties agree to consult prior to implementing
       changes in personnel policies, practices and matters affecting
       working conditions that are within the scope of the Employer's
       authority and that are not specifically covered by this agreement.
 
    FASTA agreed to Article 54 several months prior to negotiations
 concerning the remainder of the agreement.  The quid pro quo for FASTA's
 acquiescence to this clause, which the FAA viewed as a waiver of FASTA's
 right to bargain concerning mid-term changes in conditions of employment
 not specifically covered by the agreement, was the FAA's consent to an
 immediate agreement authorizing dues checkoff for FASTA (Tr. 89-93).
 /8/
 
    There was no evidence presented that PASS ever ratified or adopted
 this agreement.  To the contrary, on January 8, 1982, 8 days after PASS
 was certified, PASS President Howard E. Johannssen notified FAA
 Administrator Helms, in part, that,
 
          * * * PASS will demand strict compliance by the FAA with its
       obligation to bargain collectively and to refrain from unilateral
       changes.  Specifically, PASS demands notification of all proposed
       changes affecting conditions of employment and bargaining to the
       full extent permitted by law prior to implementation of such
       changes.  This, of course, includes notice of changes which the
       FAA contends may be made unilaterally as a management right, and
 
          full bargaining on impact and implementation procedures,
 
          regarding such changes prior to implementation.
 
    (C.P. Ex. 1).  The FAA responded, in part, that it "is well aware of
 its obligation to deal with recognized labor unions and will continue to
 do so.  However, these obligations do not extend to being influenced by
 threats and demands of labor organizations.  Rhetoric such as that
 contained in your January 8 letter has previously worked to the extreme
 detriment of another union formerly representing FAA employees" (C.P.
 Ex. 2).
 
    Shortly thereafter, on February 2, 1982, Johannssen again wrote Helms
 informing him that he was the only PASS representative authorized to
 receive notice and conduct negotiations regarding certain proposed
 changes.  This letter went on to state that,
 
          * * * notice of proposed changes in local or regional
       conditions of employment pertaining to other subjects should be
       given to the PASS Regional Vice President responsible for the area
       affected.
 
    The letter explicitly stated that " * * * unless specific notice to
 the contrary is given, local representatives are not authorized to
 engage in negotiations or conclude agreements" (C.P. Ex. 3).
 
    On that same date Mr. Johannssen also reiterated the PASS position
 with respect to the effect of the FASTA-FAA agreement.  In a letter to
 FAA Director of Labor Relations E. V. Curran, Johannssen stated that
 PASS appreciated the FAA's voluntary decision to abide by the terms of
 that agreement.  However, he emphasized:
 
          Of course, you should not misunderstand this appreciation to
       mean that PASS accepts any waivers of rights contained in the
       FASTA agreement.  As stated in my January (9), 1982 letter to
       Administrator Helms, PASS stands ready to negotiate to the full
       extent permitted by law on all appropriate subjects.  (C.P. Ex.
       4).
 
    Less than one week later, on February 8, 1982, Mr. Curran directed a
 memorandum to the labor relations staff in all regional offices.  The
 memorandum provided, in pertinent part, as follows:
 
          Pending formal negotiations and written agreement at the
       national level between FAA and PASS, the following transitional
       guidelines are to be applied in labor-management matters involving
       PASS.
 
          1.  Provisions of Existing Agreements.  Consistent with
       applicable case law and in the interest of maintaining stability
       and predictability in the labor-management relationship during
       this period of transition, the terms and provisions of the
       FAA/FASTA agreement survive and, to the maximum extent possible,
       will remain in full force and effect until expressly modified or
       superseded by written agreement between FAA and PASS.  Similarly,
       the existing agreement between the FAA Eastern Region and NAGE
       Local R273 remains in effect until modified or superseded.
 
          2.  Other Personnel Policies and Practices.  Other personnel
       policies and practices generally in effect at the time of
       certification of PASS and applicable to the employees in the
       national unit of electronic technicians and other related
       employees continue as established.  Personnel policies and
       practices in effect at local facilities also continue as
       established.  Changes should only be made for significant
       operational and sound management reasons and only after
       consultation with the authorized PASS regional representatives.
 
    On the same date, Mr. Curran replied to Mr. Johannssen.  He
 reiterated "the FAA's position that the provisions of the FASTA/FAA
 agreement continue in effect until a mutual agreement to the contrary is
 reached.  Therefore, to the extent your letter of February 2 is not
 inconsistent with the provisions of the FASTA/FAA agreement, we concur
 in your designation as outlined in that letter."
 
    FAA and PASS have not negotiated a collective bargaining agreement.
 The Former Holiday Staffing Practice
 
    The duties of electronic technicians at both the Seattle Radar Data
 Communications Unit located at Seattle-Tacoma Airport (SEATAC) and the
 Auburn Airway Facilities Sector are to maintain electronic equipment
 (radar equipment, computers, communications equipment) necessary for air
 traffic control (Tr. 17-18).  Technicians work in specialties that
 relate to the type of equipment which they are qualified to maintain
 (Tr. 44-45).  Technicians are required to acquire "certification
 authority" with respect to certain pieces of equipment.  Only a
 technician possessing such authority may "certify" equipment as being in
 working order.  Not all technicians have certification authority for all
 types of equipment within their specialty (Tr. 23-24;  46-47).
 
    Both SEA-TAC and the Auburn Sector are classified by the FAA as
 immediate restoration facilities.  This means that the equipment at
 those facilities receives the highest priority for repair should it fail
 to operate properly.  Accordingly, FAA regulations provide that
 technicians with proper certification authority must be on duty at both
 facilities 24 hours a day, 7 days a week (G.C. Exs. 4 & 5;  Tr. 21).  To
 insure such coverage technicians work a rotating schedule known as the
 "basic watch schedule" throughout the year (Tr. 25, 47).  /9/
 
    FAA headquarters provided broad guidance on assignment of employees
 to duty on holidays, but basically left the determination of how many
 employees would be assigned to the discretion of local management.  The
 policy provided, in part, as follows:
 
          81.  BASIC POLICY.  Employees will not be assigned to duty on
       holidays unless work is necessary for the protection of life or
       property, is in the interest of the general public, or is
       necessary to meet an emergency in which the Government requires
       the completion of a particular job without delay.  In line with
       this general policy, as many employees as feasible in continuously
       operating activities (i.e., activities open 16 to 24 hours a day,
       7 days a week) will be excused from duty on a holiday;  and as
       many employees as necessary to meet operating requirements will be
       required to work.  NOTE:  The Absence and Leave Handbook, 3600.4
       contains further discussion on holiday benefits, and a listing of
       legal holidays designated by law.
 
    Prior to Memorial Day 1982, it is undisputed that, at both
 facilities, it was the FAA's practice to schedule employees to work on
 holidays no differently than any other day (Tr. 29-30;  52-53;  111-122;
  135-136;  150-151).  In other words, if the basic watch schedule
 provided that a given technician was to work midnight shift on a
 holiday, the employee was expected to report for midnight shift unless
 he sought and obtained permission to take leave (Tr. 29-30;  52-53).
 This was the same procedure followed for any regular day of work;  the
 employee scheduled to work a given shift reported to work unless he
 obtained permission to take leave that day (Tr. 66).  Employees receive
 an extra day of pay for holiday work (Tr. 70).  The Change At the
 Seattle Radar Communications Unit
 
    The Seattle Radar Data Communications Unit located at Seattle-Tacoma
 Airport (hereinafter referred to as SEATAC or Radar Com) is a unit
 within the Seattle Airway Facilities Sector.  The Radar Com unit is
 concerned with equipment utilized to control air traffic into or out of
 the airport (Tr. 24).  In March 1982, there were seven technicians in
 the Radar Com unit, not all of whom were certified on each piece of
 equipment (Tr. 24).
 
    During the first 3 months of 1982, technicians in the Radar Com unit
 were scheduled to work holidays in the manner described above (Tr.
 29-30;  119).  In late February, while preparing the assignments to the
 watch schedule for the remainder of the year, Duane Cornell,
 Radar/Communication unit supervisor, questioned the necessity of
 continuing to schedule all personnel to holiday watches in light of
 fiscal restraints.  He discussed the matter with Sector manager Ray
 Perry.  Perry checked with the Region and instructed Cornell to make up
 a plan for minimum staffing and to consult with the Union prior to
 implementing it (Tr. 103, 120-121).  Cornell did not have authority to
 negotiate a collective bargaining agreement (Tr. 143).
 
    On the morning of March 2, Cornell called Leo Zmijewski, the Union
 representative for the Radar Com unit, into his office.  Cornell
 informed Zmijewski that, beginning with the new watch schedule, there
 would only be one man scheduled per shift on holidays;  that reduced
 staffing would be the regional policy in order to save money.  The
 matter was discussed briefly.  Zmijewski told Cornell that he did not
 believe that management should change the established practice and
 advised that somebody would probably file a grievance about the change.
 Cornell told Zmijewski that the matter had already gone to arbitration,
 and that it was management's decision how they would staff on holidays
 (Tr. 30).  Zmijewski asked Cornell how he intended to make the holiday
 pay equitable, and Cornell responded that he would try to give an even
 amount to all employees (Tr. 31, 133).  Zmijewski told Cornell that he
 would get back to him about it, and the meeting moved on to other labor
 management topics (Tr. 31, 135).
 
    The following day, Cornell and Zmijewski had a brief encounter in the
 crew area at the shift change during which the topic of changing holiday
 staffing was mentioned in passing.  Cornell stated he wanted to make
 sure Zmijewski understood he was consulting over the change (Tr.
 123-124).
 
    Cornell had selected who would work the holidays prior to his
 conversation with Zmijewski (Tr. 140).  The new watch schedule,
 indicating the reduction in staffing on the remaining holidays for the
 year, was posted on March 5, 1982 (G.C. Ex. 10, Tr. 34).  /10/
 
    On March 8, 1982, Sector manager Perry consulted with Mr. Lloyd
 Burrell, PASS sector representative, on the subject of reducing staffing
 on holidays.  Mr. Burrell indicated that for the present time he had no
 comments on the matter.  He made no further contact with the sector
 manager (Tr. 103, 106).
 
    Thereafter, by letter dated March 11, 1982 to Duane Cornell,
 Zmijewski requested to negotiate regarding the change in past practice
 of holiday staffing and designated Lawrence A. Sump, PASS regional vice
 president as the Union's representative in the matter (G.C. Ex. 8).
 Almost 2 months later, on May 7, 1982, Zmijewski received a letter from
 Mr. Cornell informing him that consultation, in accordance with Article
 54, Section 2 of the FASTA agreement had occurred on March 2 and 3,
 1982, and that Respondent had thereby fulfilled its obligations to the
 Union (G.C. Ex. 9).
 
    The first holiday affected by the new holiday staffing policy
 occurred on Monday, May 31, 1982.  Blackett, Curran, and Beetz, who as
 part of the regular watch schedule rotation had been scheduled to work
 day shift, and Zmijewski, who had been scheduled to work the evening
 shift, were scheduled off.  The change in holiday staffing has been
 applied to the remaining holidays of 1982 (G.C. Ex. 10).  The Change at
 Auburn Airway Facilities Sector
 
    There are approximately 100 employees, including 25 supervisory and
 managerial personnel, in the Auburn Airway Facilities Sector.  As with
 Seattle, it is undisputed that, until Memorial Day 1982, holidays were
 not differentiated on the basic watch schedule at the Auburn Airway
 Facilities Sector, and technicians were scheduled to work holidays
 whenever their regular rotational assignment occurred on a holiday (Tr.
 52-53, 150-151, 163).
 
    Some time after April 2, 1982, Reuben Powell, Auburn sector manager,
 received correspondence from Mr. Jack Wichels, Airway Facilities
 Division Chief.  The letter indicated that holiday staffing should be at
 a minimum, and, if necessary, appropriate consultation with the unit
 representative should be accomplished prior to placing this holiday
 scheduling into operation (Respondent Ex. 6).  Upon inquiring, Mr.
 Powell learned his facility was staffing holidays by the basic work
 schedule and was permitting double crews to work holidays.  Mr. Powell
 determined that such staffing was unnecessary and asked the assistant
 sector manager to devise a proposed schedule for the remainder of the
 year, whereby only one crew would be scheduled for each holiday, and
 each crew would be required to receive equal exposure to holiday work.
 Such a schedule was prepared, and Mr. Frank Bruno, local PASS president
 and the Union's local representative at Auburn, was asked to attend a
 meeting on May 3, 1982, at which the proposed new schedule would be
 discussed (Tr. 150-152).  Powell did not have authority to negotiate or
 conclude a collective bargaining agreement (Tr. 165).
 
    On May 3, 1982, Union representative Bruno met with Sector manager
 Reuben Powell and Assistant Sector manager Temple (Tr. 53-54).  When he
 arrived at the meeting, and after the usual greetings, Powell handed
 Bruno a letter, dated May 3, 1982, addressed to all watchstanders,
 advising them of his decision to implement minimum staffing on holidays
 (G.C. Ex. 14).  The letter specified the change in assignments for the
 crews on the Computer Display Channel (CDC) unit, Central Computer
 Complex (CCC) unit, and Communications watch schedule (G.C. Ex. 11), and
 stated that it "shall be posted and serves the 21-day notification
 requirement per Article 40, Section 4 of the FASTA Agreement." The
 letter also directed the Unit Chiefs of Radar and Environmental Support
 Unit (ESU) to adjust their work schedules to conform with Powell's
 designated minimum staffing and to post such work schedules at least 21
 days prior to the holiday as required by Article 40, Section 4 of the
 FASTA agreement (G.C. Ex. 14).
 
    After Bruno had an opportunity to review Powell's letter, Powell
 explained his rationale for making the change and a discussion of the
 change followed.  Bruno commented that he thought the action was
 illegal;  that he assumed employees would be upset and file grievances
 over the change;  and, in response to Powell's assertion that he had
 authority to make the change under the FASTA agreement simply by
 providing 21 days notice, Bruno indicated that PASS was not bound by the
 contract.  Mr. Bruno also indicated that he thought Powell's method of
 determining which crews would be affected by the change was unfair,
 since only four of five crews were affected (Tr. 54-55).
 
    That afternoon, Powell's May 3, 1982 letter was distributed to the
 employees.  Shortly thereafter, the Radar Unit Chief issued a letter
 designating which employees would be scheduled to work the remaining
 holidays of 1982 (G.C. Ex. 17).
 
    The following day, Bruno prepared a letter to Jack Wichels, Chief of
 the Airways Facilities Division, in which, among other things, he
 objected to Powell's conduct in informing him of the change after the
 decision had already been made, rather than consulting, or deliberating
 with the Union, consistent with the agency's moral and legal obligation
 to bargain in good faith with the Union.  Bruno requested that Powell's
 May 3 letter be rescinded, and questioned why, if the change were
 directed by Wichels, no prior consultation had taken with the Union's
 regional representative (G.C. Ex. 15).
 
    Wichels did not respond to Bruno.  Instead, 21 days later, Bruno
 received a letter dated May 25, 1982 from Reuben Powell.  Powell stated
 he was responding as the appropriate official under the FASTA agreement
 with whom Bruno was permitted to deal.  Powell advised Bruno that
 management had consulted in good faith, and in accordance with the
 provisions of the FASTA agreement, on May 3, 1983 prior to issuing the
 letter on holiday coverage (G.C. Ex. 16).
 
    Thereafter, on May 31, 1982, the first holiday affected by Powell's
 May 3 change, occurred.  The following employees did not work the
 holiday as previously scheduled:  Crew 1 on G.C. Ex. 11;  Keefer,
 Hackett and Henderson in Radar;  and either Crew 2 or Crew 5 in ESU.
 The changes effected by Powell's May 3, 1982 letter have been followed
 on subsequent holidays.  The Impact of the Changes
 
    The changes in holiday staffing policy resulted in a loss of holiday
 pay to those employees who had been scheduled to work holidays, but were
 now told these work assignments were cancelled (Tr. 35-37;  61-62).  In
 addition, since the workload of electronic technicians does not decrease
 on holidays (Tr. 140), the change means that the workload of employees
 assigned to work holidays is increased and/or some of the work must be
 done later in the week (Tr. 36).  It also increases the chances that
 employees not scheduled to work will be required to report to work if
 equipment fails for which no technician on duty possesses certification
 authority (Tr 37;  61-63).
 
                                  Issues
 
    1.  Whether Article 54, Section 2 of the FAA/FASTA agreement is
 binding on PASS, the newly certified Union, and limits it to
 consultation rights rather than the statutory right to negotiate
 concerning changes in terms and conditions of employment not
 specifically covered by the agreement.
 
    2.  If not, whether Respondent had the obligation to bargain with the
 Union regarding the impact and implementation of the changes in holiday
 staffing.
 
    3.  If so, whether Respondent met its obligation to bargain in good
 faith.  Position of the Parties
 
    The General Counsel and the Charging Party contend that the waiver
 contained in Article 54 of the FAA/FASTA agreement may not be applied so
 as to foreclose PASS, the newly certified Union, from the exercise of
 its statutory right to bargain.  Therefore, they claim that Respondent
 had the obligation to bargain with the Union regarding the impact and
 implementation of the changes in holiday staffing.  They argue that
 Respondent's conduct in "consulting" with the Union did not satisfy its
 statutory bargaining obligation, and that, accordingly, Respondent
 violated sections 7116(a)(1) and (5) of the Statute.
 
    Respondent defends on the basis that Article 54 of the FAA/FASTA
 agreement provides for a clear and unequivocal waiver of the Union's
 right to negotiate over changes in terms and conditions of employment
 not specifically covered by the agreement, such as changes in holiday
 staffing which are not specifically covered by the FAA/FASTA agreement.
 This waiver, Respondent maintains, is binding on FAA and PASS under the
 Authority's decision in U.S. Nuclear Regulatory Commission and National
 Treasury Employees Union, 6 FLRA No. 9 (1981).  Respondent asserts that
 it fully met its obligation under Article 54 to consult with PASS.  If
 PASS is not bound by the waiver, Respondent contends that PASS is still
 not entitled to any relief.  Respondent claims that PASS only requested
 to bargain concerning the decision to reduce staffing.  Respondent
 contends that this decision essentially involved the number of employees
 required for holiday crews, and it has not elected to bargain over the
 decision pursuant to its rights under section 7106(b)(1) of the Statute.
  Respondent also asserts that in the limited instance when the Union did
 refer to impact and implementation matters, it responded affirmatively
 and met any obligation to bargain in good faith.
 
                        Discussion and Conclusions
 
    It is well established that, even where an agency's decision to
 change a past practice involves the exercise of a reserved management
 right under the Statute, the agency is required to notify the employees'
 exclusive representative before making the change and to afford the
 exclusive representative an opportunity to bargain, upon request,
 concerning the procedures to be used in implementing the change and on
 appropriate arrangements for employees adversely affected by the change.
  Department of the Interior, U.S. Geological Survey, 9 FLRA No. 65
 (1982).  Any waiver of such a statutory right must be clear and
 unmistakable.  Department of the Air Force, Scott Air Force Base, 5 FLRA
 No. 2 (1981).
 
    Respondent contends that Article 54, Section 2 of the FAA/FASTA
 agreement, supra, provides such a clear and unequivocal waiver of the
 union's right to negotiate over changes in terms and conditions of
 employment not specifically covered by the agreement, such as changes in
 holiday staffing.  This waiver, Respondent maintains, is binding on FAA
 and PASS under the Authority's decision in U.S. Nuclear Regulatory
 Commission, supra.  It is also Respondent's position that the terms and
 conditions of employment as found in the agreement are inextricably
 linked to the waiver provision.  Respondent argues that but for the
 waiver provision, the terms and conditions of employment as expressed in
 the agreement would be significantly different.  Therefore, Respondent
 contends that a finding that the waiver provision continues in effect
 and binds PASS would foster the stability of the new bargaining
 relationship and is consistent with Nuclear Regulatory Commission and
 represents a logical extension and application of that decision.
 
    The General Counsel and the Charging Party do not disagree that
 Article 54, Section 2 contains such a waiver, but they argue that
 Article 54 of the FAA/FASTA agreement may not be applied so as to
 foreclose PASS, the successor union to FASTA, from the exercise of its
 statutory right to bargain.
 
    In U.S. Nuclear Regulatory Commission, supra, the Authority concluded
 that a clause relating to the union's use of bulletin boards in an
 expired agreement created a condition of employment which remained
 binding in its entirety despite the agreement's expiration and the
 change of exclusive representative.  The Authority stated:
 
          In agreement with the Judge's findings and conclusions, the
       Authority holds that the clause relating to bulletin boards in the
       expired agreement created a condition of employment which remains
       binding in its entirety despite the agreement's expiration and the
       change of exclusive representative.  In the Authority's opinion,
       the purposes and policies of the Statute are best effectuated by a
       requirement that existing personnel policies, practices, and
       matters affecting working conditions continue, to the maximum
       extent possible, upon the expiration of a negotiated agreement,
       absent an express agreement to the contrary or unless modified in
       a manner consistent with the Statute.  Such a result fosters
       stability in Federal labor-management relations, which is an
       underlying purpose of the Statute.  See Department of Defense,
       Department of the Navy, Naval Ordnance Station, Louisville,
       Kentucky, 4 FLRA No. 100 (1980);  and Department of the Air Force,
       35th Combat Support Group (TAC), George Air Force Base,
       California, 4 FLRA No. 5 (1980).  We see no distinction in the
       circumstances of this case where there has been a change in the
       exclusive representative since the expiration of the agreement.
       The stability of the new bargaining relationship is enhanced by a
       required maintenance of existing personnel policies and practices,
       and matters affecting working conditions pending the negotiation
       of a new agreement.
 
    The General Counsel and the Union would limit the application of
 Nuclear Regulatory Commission to contract provisions which establish or
 define existing personnel policies, practices and terms and conditions
 of employment while excluding any waiver of a statutory right or matter
 concerned solely with the statutory relationship between the parties.
 
    In my view, such a distinction has merit.  As the Authority found in
 Nuclear Regulatory Commission, the clause relating to bulletin boards in
 the expired agreement created a specific condition of employment.
 Specific personnel policies, practices, and matters affecting working
 conditions were also identified in the agreements involved in Department
 of Defense, Department of the Navy, Naval Ordnance Station, Louisville,
 Kentucky and Department of the Air Force, 35th Combat Support Group
 (TAC), George Air Force Base, California, cited by the Authority.  By
 contrast, the provisions involved here, Article 54, Section 2, does not
 deal with holiday staffing, or with any other specific condition of
 employment.  Rather, it is an agreement by FAA and FASTA to "consult
 prior to implementing changes in personnel policies, practices, and
 matters affecting working conditions that are within the scope of the
 Employer's authority and that are not specifically covered by this
 agreement." In my view, unlike the clauses in Nuclear Regulatory
 Commission, et al., Article 54, Section 2, deals with the union's
 general bargaining relationship with the employer concerning changes not
 covered by the agreement and did not create a condition of employment
 which remains binding despite the agreement's expiration and the change
 of exclusive representative.  In short, contract provisions restricting
 or modifying the collective bargaining system provided for in the
 Statute, unlike contract provisions establishing or defining existing
 personnel policies, practices, and matters affecting working conditions
 do not survive the certification of a new and distinct bargaining agent.
  /11/ Cf. Marine and Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir.
 1963).
 
    There is some precedent for this view under Executive Order No.
 11491, as amended.  The Federal Labor Relations Council held in Internal
 Revenue Service, Ogden Service Center, et al. and Internal Revenue
 Service, Brookhaven Service Center, 6 FLRC 310 (1978) that the parties
 were not obligated to maintain all provisions in an expired negotiated
 agreement.  The Council held that, upon expiration of an agreement and
 absent agreement to the contrary, the agency was not required to
 maintain provisions relating to "permissive" subjects of bargaining, and
 the parties were not required to maintain provisions relating to matters
 outside the scope of bargaining.  It was also necessary that the
 agreement be brought into conformance with changes in laws and
 regulations.  Cf. Office of Program Operations, Field Operations, Social
 Security Administration, San Francisco Region, 10 FLRA No. 36, 10 FLRA
 172, 178-179 (1982).
 
    The right which the Authority recognized in Nuclear Regulatory
 Commission, supra, use of agency bulletin boards, was a right gained
 only by contract, not one provided by the Statute.  Thus, that holding
 did not deprive the union of rights to which it was otherwise entitled
 by law.  By contrast, the right of PASS to bargain is not dependent upon
 its ability to secure such a right in a collective bargaining agreement.
  Office of Program Operations, Field Operations, Social Security
 Administration, San Francisco Region, supra.  Rather, it is a right
 that, by Congressional command, is a natural consequence of
 certification.  /12/ To adopt the position urged by the FAA would force
 PASS to negotiate an agreement to gain the right to negotiate.  This is
 surely not the situation Congress wished to create when it provided
 federal employees statutory protection of the right "to organize,
 bargain collectively, and participate through labor organizations of
 their own choosing in decisions which affect them . . . (.)" 5 U.S.C.
 7101(a)(1).  See also 5 U.S.C. 7102(2).  Cf. Timken Roller Bearing Co.
 v. NLRB, 325 F.2d 746, 751 (6th Cir. 1963) (distinguishing between the
 failure to gain contractual rights and the waiver of rights secured by
 statute).
 
    Extension of the rule in Nuclear Regulatory Commission to the waiver
 in this case would force the newly certified Union to enter the
 collective bargaining relationship already deprived of its most
 fundamental right and thereby unable from the onset to function as
 contemplated by the Statute.  Moreover, application of FASTA's waiver to
 the newly certified Union would effectively nullify the mandate of the
 employees who have selected PASS to replace FASTA as their exclusive
 representative.  During the several years it sometimes takes to
 negotiate a full agreement, the new representative would be a mere
 shadow of the effective bargaining representative contemplated by the
 Statute.  Continuation of the limited right to consult would require the
 new Union to bail with a sieve until a new agreement is reached.
 Management would be completely free to institute sweeping changes in
 conditions of employment not specifically covered by the agreement
 without first bargaining with employees through the representative they
 have selected to the extent provided for by the Statute.
 
    In the present instance, FAA changed a practice concerning holiday
 staffing which was one of long duration.  Extension of the rule in
 Nuclear Regulatory Commission so as to bind the newly certified
 collective bargaining representative to its predecessor's waiver of its
 statutory right to bargain in such circumstances would be to diminish,
 rather than enhance, the new relationship with no concomitant
 stabilizing benefit regarding those conditions of employment not
 specifically addressed in the agreement.  Such a result would also not
 be "consistent with the established framework of the Statute which
 provides for the peaceful resolution of bargaining disputes and
 'facilitates and encourages the amicable settlement of disputes between
 employees and their employers involving condition of employment,' which
 is an underlying purpose of the Statute." Department of the Air Force,
 35th Combat Support Group (TAC), George Air Force Base, California, 4
 FLRA No. 5 (1980).
 
    In an analogous situation in the private sector, it is the rule that
 where a contract is no bar to the conduct of a representational
 election, then it similarly cannot prevent full collective bargaining by
 the newly selected representative.  In the lead case adopting this
 principle, American Seating Co., 106 NLRB 250, 32 LRRM 1439 (1953), the
 employer had argued that the contract negotiated by UAW for its
 plant-wide unit still controlled a group of employees who had voted for
 a separate unit to be represented by the Patternmakers.  The employer
 contended that the Patternmakers would not have the right to negotiate a
 new agreement until expiration of the UAW contract.  The right to
 negotiate a new agreement is conceded here, and we are concerned only
 with the waiver by the former representative of the right to negotiate
 concerning changes not specifically covered by the agreement.  However,
 in rejecting the employer's arguments, the Board eloquently stated its
 rationale in terms equally applicable to the instant situation:
 
          Although the certification of October 6, 1952, gave the Pattern
       Makers immediate status as exclusive representative 'in respect to
       rates of pay, wages, and hours of employment,' the Respondent
       would qualify the Pattern Makers' authority as to these subjects
       by adding, 'after July 1, 1953.' If the Respondent's contention is
       sound, a certified bargaining representative might be deprived of
       effective statutory power as to the most important subjects of
       collective bargaining for an unlimited number of years as the
       result of an agreement negotiated by an unwanted and repudiated
       bargaining representative.  There is no provision in the statute
       for this kind of emasculated certified bargaining representative.
 
    Id., 106 NLRB at 255.  Additionally, the Board noted that the
 National Labor Relations Act provides employees dissatisfied with their
 present bargaining representative the opportunity to select a new
 representative through a Board conducted election.  The Board said that
 this policy would be defeated entirely by saddling the new bargaining
 representative with the contractual errors of its predecessor:
 
          * * * if a newly chosen representative is to be hobbled in the
       way proposed by the Respondent, a great part of the benefit to be
       derived from the no-bar rule will be dissipated.  There is little
       point in selecting a new bargaining representative which is unable
       to negotiate new terms and conditions of employment for an
       extended period of time.
 
 Id.
 
    As noted, the Statute provides that upon certification, a bargaining
 representative " * * * is entitled to act for, and negotiate collective
 bargaining agreements covering, all employees in the unit." 5 U.S.C.
 7114(a)(1).  Further, the Statute makes it an unfair labor practice " *
 * * to refuse to consult or negotiate as required by this chapter." 5
 U.S.C. 7116(a)(5).  Thus, the right of a union and the corresponding
 obligation of an agency to bargain flow directly from the Statute and
 vest upon certification.  Like the analogous right conferred by the
 National Labor Relations Act, the right to bargain conferred by the
 Statute cannot be defeated for years by a waiver executed by an
 "unwanted and repudiated" bargaining agent.
 
    Respondent argues in effect that it gives the Union an unfair
 advantage if it is not bound by such a waiver, but obtains the benefits
 of other articles setting forth specific conditions of employment which
 might not be in the agreement but for the waiver.  However, management
 is not rendered powerless to make changes in such conditions of
 employment.  It has been held that management's obligation to adhere to
 existing conditions of employment to the maximum extent possible does
 not prevent management from making changes in otherwise negotiable
 conditions of employment where such changes are required consistent with
 the necessary functioning of the agency.  Cf. United States Department
 of Justice, United States Immigration and Naturalization Service, 9 FLRA
 No. 36 (1982).  In other circumstances, existing conditions of
 employment expressly set forth in the agreement can be modified in a
 manner consistent with the bargaining obligation of the Statute.
 Nuclear Regulatory Commission, supra.
 
    The FAA's position literally flies in the face of the rule, noted at
 the outset, that, absent a "clear and unmistakable waiver," a certified
 bargaining representative has a statutory right to bargain on all
 proposed changes to conditions of employment.  Department of the Air
 Force, Scott Air Force Base, supra.  There is no evidence that PASS ever
 waived its right to bargain, or has ever elected to consult rather than
 negotiate changes in working conditions.  In fact, the record evidence
 conclusively demonstrates the Union's insistence on enforcing its
 statutory right to negotiate over changes in working conditions.
 
    It is concluded that the Union is not bound by the waiver contained
 in the FASTA agreement.  Respondent was, therefore, obligated to provide
 the Union with the notice and the opportunity to bargain, in accordance
 with the requirements of the Statute, regarding the impact and
 implementation of the changes in holiday staffing practices.
 
    Whether Respondent's Conduct In "Consulting" With the Union Satisfied
 Its Statutory Bargaining Obligation
 
    Respondent argues that it met any obligation to bargain in good faith
 regarding the impact and implementation of the changes in holiday
 staffing notwithstanding that it described its conduct as
 "consultation." The facts demonstrate that such a contention is without
 merit.
 
    First, the FAA studiously ignored PASS' request that notice of
 proposed changes was to be provided to PASS Regional Vice-President Sump
 and attempted to discuss the changes with representatives that it had
 been informed had no authority to negotiate.  An agency has an
 obligation to provide notice to, and bargain with, the person or persons
 designated by the exclusive representative, and failure to do so itself
 violates the Statute.  Department of Health and Human Service, Social
 Security Administration, Field Assessment Office, Atlanta, Georgia, 11
 FLRA No. 78 (1983);  Northeastern Program Service Center, 1 FLRA 779,
 790 (1979).  See also, American Federation of Government Employees,
 AFL-CIO, 4 FLRA No. 39 (1980);  Philadelphia Naval Shipyard, 4 FLRA No.
 38 (1980).  Accordingly, it must be held that proper notice was not
 provided.
 
    Second, the individuals who did "consult" on behalf of the FAA all
 admitted that they did not have authority to conclude agreements.
 Absent representatives with such authority, the FAA could not fulfill
 its duty to bargain as defined by the Statute.  5 U.S.C. 7114(b)(2) and
 (5).
 
    Finally, it is manifest that the FAA agents did not approach the
 discussions with local PASS representatives with "a sincere resolve to
 reach a collective bargaining agreement." 5 U.S.C. 7114(b)(1);  5 U.S.C.
 7103(a)(12).  Respondent by its instruction to supervisors Cornell and
 Powell precluded the existence of the prerequisite "good faith"
 necessary under the Statute.  Respondent has at all times maintained
 that its only obligation with respect to the Union was to consult.  This
 was the policy promulgated to its managers following the certification
 of PASS.  It was the position it insisted on in its communications with
 PASS.  And it was the direction given to both Cornell and Powell in
 dealing with the instant changes.  Given that restriction, it is evident
 that Respondent's representatives could not approach the Union with the
 open mind and intent to reach agreement which is a prerequisite for
 collective bargaining negotiations.
 
    By the same token, neither during Cornell's March 2 meeting or March
 3 encounter with Zmijewski, nor during Powell's May 3 meeting with Bruno
 can Respondent be found to have engaged in collective bargaining.  At
 best, some sort of limited discussion regarding the change occurred at
 each meeting, but such discussion, with no attempt to reach agreement,
 is not good faith bargaining.  Respondent's unwillingness to discuss the
 issues with an open mind, and to engage in a "give and take"
 relationship foreclosed any possibility of meaningful collective
 bargaining.  Internal Revenue Service and Brookhaven Service Center,
 IRS, 4 FLRA No. 30 (1980).
 
    Moreover, neither at SEATAC nor at Auburn did Respondent provide the
 Union with an adequate opportunity to respond prior to its announcement
 of the changes to the employees.  Although both Mr. Zmijewski and Mr.
 Bruno indicated their disagreement with the changes in holiday staffing
 proposed at their respective facilities, and although both indicated
 their intent to get back to management or take further action, the new
 watch schedule, with its changes in holiday staffing was posting at
 SEATAC within 3 days of Cornell's "notice" to Zmijewski, and, at Auburn,
 the letter to all employees advising them of the change was distributed
 the very same afternoon.  In neither case has Respondent demonstrated
 any exigency which warranted its premature announcement of the change to
 the employees.
 
    Respondent, however, suggests that because Zmijewski did not offer
 any specific proposals during the March 2 meeting, or in the March 3
 encounter with Cornell;  or because Bruno did not make any specific
 proposals during his meeting with Powell on May 3, the Union somehow
 waived any rights it might have to negotiate the change, thus permitting
 Respondent to proceed with its announcements.  Respondent is mistaken.
 The Union does not forego its right to bargain because it does not
 present proposals at the instant it is advised of a change.  The Union
 representatives did make known their objections to the change and each
 raised issues regarding equalization.  The Union is entitled to a
 reasonable opportunity to consider management's proposals, consistent
 with the nature of the change which is proposed and its anticipated
 implementation date.  In the absence of an express waiver Respondent can
 conclude that the Union has acquiesced in its changes and proceed with
 implementation only after a reasonable time has expired.  Cf. Bureau of
 Government Financial Operations Headquarters, 11 FLRA No. 68 (1983);
 United States Department of Defense, Department of the Army,
 Headquarters, Fort Sam Houston, Texas, 8 FLRA No. 112 (1982).
 
    Thus, neither at SEATAC or Auburn did Respondent give the Union a
 reasonable opportunity to respond before its announcement of the changes
 to the employees.  /13/ In fact, when the Union representatives did
 thereafter, and in timely fashion, request to bargain, Respondent
 delayed its responses and refused to negotiate regarding the changes.
 
    The record does not support Respondent's position that the Union
 representatives limited their requests to "decision" bargaining.  See
 Department of the Treasury, United States Customs Service, Region 1,
 Boston, Massachusetts, et al., 10 FLRA No. 100 (1982).  In his letter of
 March 11, Leo Zmijewski indicated his position that the established
 practice of holiday staffing continue, specifically requested to
 negotiate if management intended to change that practice, and designated
 Lawrence Sump, PASS Regional Vice President as the Union representative
 for that purpose.  Although there was still ample opportunity for the
 parties to engage in collective bargaining prior to the May 31 holiday,
 Respondent delayed almost 2 months, until May 7, before responding to
 the Union's request.  It then, ignored the Union's designation of its
 representative, responded to Mr. Zmijewski, and advised him that it had
 already met its obligation to the Union by its consultation of March 2
 and 3.
 
    Similarly, Bruno's May 4 letter to Division Chief Wichels, which was
 routed through Powell's office, must also be construed as a request to
 bargain.  Although Powell insists that no request to bargain was ever
 directed to him, in fact it was he who responded to Bruno's letter.  In
 Powell's response, some 21 days later, and only a few days before the
 affected holiday, Respondent again refused to bargain on grounds that it
 had already met its obligation to consult with the Union regarding the
 change.
 
    In light of the foregoing, it is concluded that Respondent's
 "consultations" with the Union, both at SEATAC and Auburn, were
 inadequate to comport with its statutory obligation to provide the Union
 proper notice and the opportunity to negotiate, pursuant to sections
 7106(b)(2) and (3), prior to implementation of the changes in holiday
 staffing.  Respondent's conduct, both at SEATAC and Auburn, constituted
 refusal to bargain in good faith with the exclusive representative and
 unfair labor practices in violation of sections 7116(a)(1) and (5) of
 the Statute.
 
    The General Counsel seeks, in addition to a cease and desist order
 and posting in both cases, a status quo ante remedy, including a make
 whole order, with respect to the Auburn case.  The Charging Party seeks
 a return to the status quo ante in both cases and back pay for those
 technicians who would have worked holidays under the old policy and were
 denied the opportunity to do so.
 
    The Authority has held that the nature and circumstances of the
 violation must be balanced against the degree of disruption in
 government operations that would be caused by such a remedy.  The
 Authority set forth in Federal Correctional Institution, 8 FLRA No. 111
 (1982) the various factors which must be considered.
 
    In the present cases, consideration of these factors necessarily
 leads to conclusion that the remedy must include restoration of the
 status quo ante.  As detailed supra, no proper notice was provided and
 that which was provided came on the eve of implementation.  Despite the
 FAA's refusal to notify the proper PASS official, the local
 representatives who were notified requested bargaining in a reasonably
 prompt manner.  As to the willfulness of the agency's conduct, this
 factor is strongly in FAA's favor.  The sole reason for the agency's
 failure to discharge its bargaining obligation under the Statute was
 because it felt it was obligated to adhere to the agreement negotiated
 with FASTA under the Authority's Nuclear Regulatory Commission decision.
  With respect to impact, the change in staffing policy resulted in a
 loss of pay, an increased workload on holidays, and an increased chance
 that employees with holiday leisure plans would be called back to work
 because of short staffing under the new policy.  The record does not
 indicate that such a remedy would create a serious disruption in
 Respondent's operation, but would merely require the FAA to return to a
 policy that it voluntarily followed for years.  Accordingly, under all
 the circumstances, it is concluded that a status quo ante remedy is
 warranted.
 
    In order for retroactive back pay to be authorized under the Bach Pay
 Act, /14/ there must be a determination not only that the employee has
 suffered an unjustified or unwarranted personnel action within the
 meaning of the Act, but also that such action directly resulted in the
 denial of back pay that the aggrieved employee would otherwise have
 received.  Picatinny Arsenal, U.S. Army Armament Research and
 Development Command, Dover, New Jersey, 7 FLRA No. 109 (1982);  American
 Federation of Government Employees, Local 2811, 7 FLRA No. 97 (1982);
 Veterans Administration Hospital, 4 FLRA No. 57 (1980).
 
    It is not possible to conclude from the record that by the FAA's
 failure to negotiate on impact and implementation the technicians
 previously scheduled to work holidays under the old policy were affected
 by unjustified or unwarranted personnel action which directly resulted
 in the loss of pay.  To put it another way, it appears that back pay
 would not be appropriate in the absence of a finding that the
 technicians would have worked the holidays had negotiations occurred.
 It is not possible to draw this conclusion from the record.
 
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Order:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Federal Aviation Administration,
 Northwest Mountain Region, Seattle, Washington and the Federal Aviation
 Administration, Washington, D.C. shall:
 
    1.  Cease and desist from:
 
          (a) Changing the holiday staffing practices at the Auburn
       Airway Facilities Sector, Auburn Air Route Traffic Control Center,
       and the Seattle Radar Data Communications Unit, Seattle-Tacoma
       Airport, or otherwise changing established past practices
       affecting the working conditions of employees represented
       exclusively by the Professional Airways Systems Specialists,
       without first notifying the Professional Airways Systems
       Specialists of its intention and affording it the opportunity to
       negotiate in good faith to the extent consonant with law and
       regulation.
 
          (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 Statute.
 
          (a) Rescind the 1982 changes in holiday staffing practices at
       the Auburn Airway Facilities Sector, Auburn Air Route Traffic
       Control Center, and the Seattle Radar Data Communications Unit,
       Seattle-Tacoma Airport and restore all conditions of employment
       regarding these matters which were in effect prior to such
       changes.
 
          (b) Notify the Professional Airways Systems Specialists of any
       intention to change the holiday staffing practices at the Auburn
       Airway Facilities Sector, Auburn Air Route Traffic Control Center,
       and the Seattle Radar Data Communications Unit, Seattle-Tacoma
       Airport, or any other change in established past practices
       affecting the working conditions of employees represented
       exclusively by the Professional Airways Systems Specialists, and,
       upon request, negotiate in good faith to the extent consonant with
       law and regulation.
 
          (c) Post at its facilities at the Auburn Air Route Traffic
       Control Center and the Seattle Radar Data Communications Unit
       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 Director of Labor Relations 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
       Director shall take reasonable steps to insure that such notices
       are not altered, defaced, or covered by any other material.
 
          (d) Pursuant to 5 C.F.R.section 2423.30 notify the Regional
       Director, Region Nine, Federal Labor Relations Authority, San
       Francisco, California, 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:  April 25, 1983
          Washington, DC
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  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
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT change the holiday staffing practices at the Auburn
 Airway Facilities Sector, Auburn Air Route Traffic Control Center, and
 the Seattle Radar Data Communications Unit, Seattle-Tacoma Airport, or
 otherwise change established past practices affecting the working
 conditions of employees represented exclusively by the Professional
 Airways Systems Specialists without first notifying the Professional
 Airways Systems Specialists of our intention and affording it the
 opportunity to negotiate in good faith to the extent consonant with law
 and regulation.
 
    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 the 1982 changes in holiday staffing practices at the
 Auburn Airway Facilities Sector, Auburn Air Route Traffic Control
 Center, and the Seattle Radar Data Communications Unit, Seattle-Tacoma
 Airport and restore all conditions of employment regarding these matters
 which were in effect prior to such changes.
 
    WE WILL notify the Professional Airways Systems Specialists of any
 intention to change the holiday staffing practices at the Auburn Airway
 Facilities Sector, Auburn Air Route Traffic Control Center, and the
 Seattle Radar Data Communications Unit, Seattle-Tacoma Airport, or any
 other change in established past practices affecting the working
 conditions of employees represented exclusively by the Professional
 Airways Systems Specialists, and, upon request, negotiate in good faith
 to the extent consonant with law and regulation.
                                       (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 of the Federal Labor Relations Authority, Region Nine,
 whose address is:  530 Bush Street, Room 542, San Francisco, California
 94108, and whose telephone number is (415) 556-8106.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Article 54 of the agreement provides as follows:
 
          ARTICLE 54 - CHANGES IN THE AGREEMENT
 
          Section 1.  The Parties agree to negotiate prior to
       implementing changes in personnel policies, practices, and matters
       affecting working conditions which are within the scope of the
       Employer's authority when those changes are in conflict with this
       agreement.
 
          Section 2.  The Parties agree to consult prior to implementing
       changes in personnel policies, practices and matters affecting
       working conditions that are within the scope of the Employer's
       authority and that are not specifically covered by this agreement.
 
 
    /2/ Section 7106(b)(2) and (3) provides as follows:
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
                                .  .  .  .
 
          (2) procedures which management officials of the agency will
       observe in exercising any authority under this section;  or
 
          (3) appropriate arrangements for employees adversely affected
       by the exercise of any authority under this section by such
       management officials.
 
 
    /3/ Section 7106(b)(1) provides as follows:
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
          (1) at the election of the agency, on the numbers, types, and
       grades of employees or positions assigned to any organizational
       subdivision, work project, or tour of duty, or on the technology,
       methods, and means of performing work(.)
 
 
    /4/ As the Authority has previously stated, the parties may, but are
 not obligated to, bargain as to matters which do not concern conditions
 of employment of bargaining unit employees, i.e., are permissive in
 nature and therefore outside the required scope of bargaining.  See,
 e.g., International Association of Fire Fighters, Local F-61 and
 Philadelphia Naval Shipyard, 3 FLRA 438 at 445 (1980);  Department of
 the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 11
 FLRA No. 66 (1983);  American Federation of Government Employees,
 AFL-CIO, 4 FLRA 272 (1980);  Department of Health and Human Services,
 Region IV, Atlanta, Georgia, 9 FLRA No. 150 (1982);  Department of the
 Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
 Ohio, 10 FLRA No. 53 (1982).
 
 
    /5/ As noted by the Judge at page 14 of his Decision, the foregoing
 principles were applicable under Executive Order 11491, as amended.
 
 
    /6/ See, e.g., American Federation of Government Employees, Local
 3669, AFL-CIO and Veterans Administration Medical Center, Minneapolis,
 Minnesota, 2 FLRA 641 (1980);  National Federation of Federal Employees,
 Local 1167 and Department of the Air Force, Headquarters, 31st Combat
 Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA No. 105
 (1981) (Union Proposal 6), aff'd on other grounds, NFFE, Local 1167 v.
 FLRA, 681 F.2d 886 (D.C. Cir. 1982).
 
 
    /7/ The General Counsel's unopposed motion to correct the transcript
 is granted;  the transcript is hereby corrected as set forth therein.
 
 
    /8/ The FASTA-FAA agreement was negotiated prior to enactment of the
 Statute, which eliminated the need of an exclusive representative to
 negotiate dues checkoff agreements.  5 U.S.C. 7115.
 
 
    /9/ For example, a given technician might work afternoon shift from
 Tuesday through Saturday one week, have three days off and work
 Wednesday through Monday on day shift, and so forth throughout the year.
  (See G.C. Exs. 6, 7, 11, 12, 13).
 
 
    /10/ There was apparently a problem with the schedule as posted on
 March 5 unrelated to the change in holidays;  the schedule was corrected
 and reposted on Monday, March 8, 1982 (Tr. 34).
 
 
    /11/ My colleague, Judge Salvatore J. Arrigo, reached the opposite
 conclusion with respect to Articles 54 and 37 of the same agreement in
 Department of Transportation, Federal Aviation Administration, Los
 Angeles, California, OALJ-83-64, Case No. 8-CA-20260 (March 11, 1983).
 Judge Arrigo pointed out the broad language of the Authority's language
 in Nuclear Regulatory Commission, and noted, "(T)here is no indication
 given in Nuclear Regulatory Commission that the Authority is inclined to
 approach the matter in a manner whereby the express waiver of a
 statutory right concerning a union's relationship with an employer would
 be treated differently from any other contractual term and condition of
 employment."
 
 
    /12/ In this connection, section 7114(a)(1) and (b)(3) of the Statute
 provides, in relevant part, as follows:
 
          Sec. 7114.  Representation rights and duties
 
          (a)(1) A labor organization which has been accorded exclusive
       recognition is the exclusive representative of the employees in
       the unit it represents and is entitled to act for, and negotiate
       collective bargaining agreements covering, all employees in the
       unit. . . .
 
                                .  .  .  .
 
          (b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this section shall
       include the obligation--
 
                                .  .  .  .
 
          (3) to meet at reasonable times . . . as frequently as may be
       necessary. . . .(.)
 
    The phrase, "collective bargaining," in turn, is defined in section
 7103(a)(12) of the Statute as follows:
 
          Sec. 7103.  Definitions;  application
 
          (a) For the purpose of this chapter--
 
                                .  .  .  .
 
          (12) "collective bargaining" means the performance of the
       mutual obligation of the representative of an agency and the
       exclusive representative of employees in an appropriate unit in
       the agency to meet at reasonable times and to consult and bargain
       in a good faith effort to reach agreement with respect to the
       conditions of employment affecting such employees and to execute,
       if requested by either party, a written document incorporating any
       collective bargaining agreement reached, but the obligation
       referred to in this paragraph does not compel either party to
       agree to a proposal or to make a concession(.)
 
 
    /13/ Respondent's evidence, purporting to show that Ray Perry gave
 notice of the change in the Data Com unit to Union representative Lloyd
 Burrell who, by his silence, concurred in the change, is not probative
 of the allegations herein.  Perry's alleged notice to Burrell occurred
 on March 8, after the new watch schedule incorporating the change in
 holiday staffing had already been posted.  The only relevant
 consideration herein concerns the "notice" given by supervisor Cornell
 to unit representative Leo Zmijewski which, as discussed above, was
 inadequate.
 
 
    /14/ The Back Pay Act of 1966 was amended by the Civil Service Reform
 Act of 1978 (5 U.S.C. 5596).  Section 5596(b)(1)(A)(i) now provides:
 
          (b)(1) An employee of an agency who, on the basis of a timely
       appeal or an administrative determination (including a decision
       relating to an unfair labor practice or a grievance) is found by
       appropriate authority under applicable law, rule, regulation, or
       collective bargaining agreement, to have been affected by an
       unjustified or unwarranted personnel action which has resulted in
       the withdrawal or reduction of all or part of the pay, allowances,
       or differentials of the employee -
 
          (A) is entitled, on correction of the personnel action, to
       receive for the period for which the personnel action was in
       effect -
 
          (i) an amount equal to all or any part of the pay, allowances,
       o