15:0100(21)CA - Transportation, FAA, Los Angeles, CA and PASS Local 503 -- 1984 FLRAdec CA



[ v15 p100 ]
15:0100(21)CA
The decision of the Authority follows:


 15 FLRA No. 21
 
 DEPARTMENT OF TRANSPORTATION
 FEDERAL AVIATION ADMINISTRATION
 LOS ANGELES, CALIFORNIA
 Respondent
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS
 SPECIALISTS, LOCAL 503
 Charging Party
 
                                            Case No. 8-CA-20260
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices as alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  The Judge further found that the Respondent
 had not engaged in certain other alleged unfair labor practices and, in
 effect, recommended dismissal of the complaint with respect to them.
 Thereafter, the Respondent, the General Counsel and the Charging Party
 filed exceptions to the Judge's Decision.
 
    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, only to the extent
 consistent herewith.
 
    The complaint alleges that the Respondent violated section 7116(a)(1)
 and (5) of the Statute by failing to bargain over a change in watch
 schedules for unit employees and by bypassing the exclusive
 representative, the Professional Airways System Specialists, Local 503
 (PASS) in dealing directly with unit employees.  Citing Authority
 precedent, the Judge found that a change in watch schedules is a matter
 concerning which an agency is obligated to negotiate with an exclusive
 representative, absent a clear and unmistakable waiver of bargaining
 rights.  In this case, the Judge found that the Respondent's obligation
 to bargain over the change was limited to consultation rather than
 negotiation by virtue of provisions contained in an expired collective
 bargaining agreement negotiated by the Respondent and PASS' predecessor,
 the Federal Aviation Science and Technological Association (FASTA) in
 which FASTA had clearly and unmistakably waived its right to negotiate
 over changes in the watch schedule.  /1/ Relying on the Authority's
 decision in U.S. Nuclear Regulatory Commission, 6 FLRA 18 (1981), the
 Judge found that the Respondent and PASS were obligated to continue, to
 the maximum extent possible, the provisions contained in the expired
 FASTA agreement which limited the Respondent's obligation to one of
 consultation over the change in the watch schedule.  The Judge further
 found, based on the record, that the Respondent had in fact fulfilled
 its obligation to consult and concluded that the Respondent had not
 violated section 7116(a)(1) and (5) of the Statute, as alleged in the
 complaint.
 
    With respect to the allegation of a bypass, however, the Judge found
 that the Respondent had violated section 7116(a)(1) and (5) of the
 Statute by dealing directly with unit employees concerning the
 development of alternative watch schedules.
 
    As noted above, the Judge relied upon the Authority's decision in
 Nuclear Regulatory Commission in reaching the conclusion that the
 Respondent and PASS were bound by the waiver provisions contained in the
 expired FASTA agreement.  In Nuclear Regulatory Commission, and the
 decisions cited therein, the Authority determined that existing
 personnel policies, practices and matters affecting working conditions
 (i.e., negotiable conditions of employment) contained in a negotiated
 agreement continue, to the maximum extent possible, upon the expiration
 of that agreement, absent an express agreement to the contrary to unless
 modified in a manner consistent with the Statute.  The Authority
 determined that such a result fosters stability in Federal
 labor-management relations.  Thereafter, in Federal Aviation
 Administration, Northwest Mountain Region, Seattle, Washington and
 Federal Aviation Administration, Washington, D.C., 14 FLRA No. 89
 (1984), a case involving the Federal Aviation Administration, PASS and
 the same expired FASTA agreement as is involved herein, the Authority
 reaffirmed the principle enunciated in Nuclear Regulatory Commission
 with respect to the maintenance of existing conditions of employment
 established pursuant to the mutual obligation to negotiate over
 "mandatory" subjects of bargaining.  However, the Authority
 distinguished such matters from those which relate to "permissive"
 subjects of bargaining and concluded that where agency management has
 elected to bargain over a matter covered under section 7106(b)(1) of the
 Statute and the parties reach agreement thereon, either party retains
 the right to unilaterally terminate such a provision upon the expiration
 of the agreement.  Similarly, the Authority concluded that where parties
 have reached agreement on matters which are outside the required scope
 of bargaining under the Statute, either party may elect not to be bound
 by such provisions upon the agreement's expiration.  In reaching this
 result, the Authority noted 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
 during the life of the parties' agreement while preserving each party's
 right to terminate such matters upon the expiration of that agreement.
 The Authority further noted that such a result is also consistent with
 Congressional intent that in any subsequent negotiations, either party
 may elect not to bargain over permissive subjects.
 
    Applying the above principles in Federal Aviation Administration,
 Northwest Mountain Region, the Authority determined that the waiver of
 bargaining rights contained in Article 54, Section 2 of the expired
 FASTA agreement, cited here at n. 1, supra, constituted a permissive
 subject of bargaining which was binding during the life of the agreement
 but was terminable by either party upon the expiration of the agreement.
  Accordingly, the Authority concluded that when PASS indicated 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, management could no longer insist upon the continuation of
 the waiver provision which contained a limitation on its bargaining
 obligation.  The same conclusion must be reached in this case, which
 involves the identical provision of the expired FASTA agreement and the
 identical assertion by PASS of its right to negotiate rather than
 consult about the change in the watch schedule.  Similarly, with respect
 to the waiver of bargaining rights contained in Article 37 (supra, n.
 1), which specifically refers to changes in the watch schedule, the
 Authority concludes that such a waiver provision also constituted a
 permissive subject of bargaining and, upon expiration of the agreement,
 terminated when PASS indicated its intent to no longer be bound by the
 provision which required only consultation but instead sought to
 exercise its right to negotiate.  Accordingly, the Respondent could not
 then have insisted upon following the practices contained in these
 expired agreement provisions so as to preclude bargaining over the
 change in the watch schedule.  In sum, the Authority finds that the
 provisions contained in Article 54, Section 2 and Article 37 of the
 expired FASTA agreement concerned permissive subjects of bargaining and
 that the waiver of bargaining rights contained therein were no longer
 binding on the parties once PASS indicated that it no longer wished to
 be bound by such practices.
 
    Having found that the waiver of bargaining rights contained in
 Articles 54 and 37 of the expired FASTA agreement were no longer binding
 on PASS and the Respondent, the Authority concludes that the Respondent
 had a statutory obligation to provide prior notice to PASS and afford it
 an opportunity to negotiate over the change in the watch schedule.  /2/
 See Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA
 9 (1981) and U.S. Customs Service, Region V, New Orleans, Louisiana, 9
 FLRA 116 (1982).  The record reveals in this regard that the Respondent
 refused to bargain with PASS, upon the latter's request, insisting
 instead that its bargaining obligation was limited to consultation.  The
 Authority finds under these circumstances that the Respondent's refusal
 to fulfill its duty to bargain constitutes a violation of section
 7116(a)(1) and (5) of the Statute.
 
    With respect to the allegation that the Respondent had bypassed the
 exclusive representative, PASS, by dealing directly with unit employees,
 the Authority adopts the Judge's conclusion that such conduct violated
 section 7116(a)(1) and (5) of the Statute.  The record reveals in this
 connection that the watch schedule involved herein, consisting of
 rotating shifts staffed by six employees on a continuous basis, was
 disrupted by the resignation of one employee and therefore necessitated
 action by the Respondent to ensure that all shifts in the watch schedule
 would continue to be covered at all times.  The record further indicates
 that, instead of fulfilling its statutory duty to bargain with PASS, as
 found above, and despite receiving specific notice from the president of
 PASS that he was the authorized representative of PASS for such purpose,
 the Respondent required unit employees to provide direct input
 concerning the development of a new watch schedule and solicited their
 assistance in establishing alternative schedules, one of which was
 adopted and put into effect over the objections of PASS' president.  The
 Authority concludes that the Respondent's direct dealings with unit
 employees concerning changes in their conditions of employment as set
 forth above constituted an unlawful bypass of PASS, the employees'
 exclusive representative, in violation of section 7116(a)(1) and (5) of
 the Statute.  In this connection, see Social Security Administration,
 Baltimore, Maryland, 9 FLRA 909 (1982), wherein the Authority found that
 management's conduct in meeting directly with unit employees concerning
 the development of their performance standards while denying the
 exclusive representative an opportunity to bargain about the manner in
 which such employee participation would be provided constituted a
 violation of section 7116(a)(1) and (5) of the Statute.  /3/
 
    To remedy the unfair labor practice conduct found herein, the General
 Counsel and PASS requested rescission of the change in the watch
 schedule and a return to the status quo ante.  In the Authority's view,
 such a remedy is not feasible where the preexisting watch schedule was
 based on a staffing level of six employees, which level no longer
 existed at the time that the Respondent found it necessary to alter the
 watch schedule due to the resignation of one of the six employees.
 Rather, the Authority finds that it will effectuate the purposes and
 policies of the Statute to order that the Respondent, upon request, must
 negotiate with PASS concerning changes in the unit employees' watch
 schedule.
 
                                   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 Department of Transportation, Federal Aviation Administration,
 Los Angeles, California, shall:
 
    1.  Cease and desist from:
 
          (a) Changing the watch schedule of unit employees without
       affording the Professional Airways Systems Specialists, Local 503,
       the employees' exclusive representative, an opportunity to
       negotiate over such change.
 
          (b) Bypassing the Professional Airways Systems Specialists,
       Local 503, the exclusive representative of its employees, by
       dealing directly with unit employees concerning personnel
       policies, practices and matters affecting their working
       conditions.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing its 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) Upon request, negotiate with the Professional Airways
       Systems Specialists, Local 503, concerning changes in the unit
       employees' watch schedule.
 
          (b) Post at its Los Angeles TRACON facility, copies of the
       attached Notice on forms to be furnished by the Federal Labor
       Relations Authority.  Such forms shall be signed by the Los
       Angeles Airway Facilities Sector Manager, 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.
 
          (c) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region VIII, 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., June 13, 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 watch schedule of unit employees without
 affording the Professional Airways Systems Specialists, Local 503, the
 exclusive representative of our employees, an opportunity to negotiate
 over such change.
 
    WE WILL NOT bypass the Professional Airways Systems Specialists,
 Local 503, the exclusive representative of our employees, by dealing
 directly with unit employees concerning personnel policies, practices
 and matters affecting their working conditions.
 
    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, upon request, negotiate with the Professional Airways
 Systems Specialists, Local 503, concerning changes in the unit
 employees' watch schedule.
                                       (Activity)
                                       By:  (Signature) (Title)
 
    Dated:  . . .
 
    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 VIII, Federal Labor Relations Authority, whose address
 is:  350 South Figueroa Street, 10th Floor, Los Angeles, California
 90071 and whose telephone number is:  (213) 688-3805.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Malachy T. Coghlan, Esq. and
    Gary W. Baldwin, Esq., on the brief
    For the Respondent
 
    Woody N. Peterson, Esq. and
    Joseph E. Kolick, Jr., Esq., on the brief
    For the Charging Party
 
    Deborah S. Wagner, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
 et seq.
 
    Upon an unfair labor practice charge filed by the Professional
 Airways Systems Specialists, Local 503 (herein referred to as the Union)
 against the Department of Transportation, Federal Aviation
 Administration, Los Angeles, California (herein referred to as
 Respondent), the General Counsel of the Authority, by the Regional
 Director for Region VIII, issued a Complaint and Notice of Hearing on
 July 29, 1982 alleging Respondent violated section 7116(a)(1) and (5) of
 the Statute by unilaterally changing the work hours of certain unit
 employees and bypassing the Union by conducting meetings with unit
 employees outside the presence of any Union representative.  /4/
 
    A hearing on the Complaint was conducted on October 7, 1982 in Los
 Angeles, California, at which time all parties were represented by
 counsel and afforded full opportunity to adduce evidence, call, examine
 and cross-examine witnesses and argue orally.  Briefs were filed by all
 parties and have been duly considered.  /5/
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence I
 make the following findings of fact and conclusions of law:
 
    Background and Events
 
    On December 31, 1981 the Professional Airways Systems Specialists
 (PASS) was certified as the exclusive collective bargaining
 representative for various of Respondent's employees including Automated
 Radar Terminal Systems (ARTS) Electronic Technicians located at
 Respondent's Los Angeles TRACON facility.  Prior to PASS's certification
 on December 31, 1981, the same employees were represented by the Federal
 Aviation Science and Technological Association/National Association of
 Government Employees (FASTA).  While FASTA was the employees'
 representative, it negotiated a collective bargaining agreement with
 Respondent, effective 1977, which was still in effect when PASS
 succeeded FASTA as the employees' representative.
 
    Local 503 is a constituent of PASS.  At least since the time PASS was
 certified, and at all times material herein, Elton Sapp was President of
 Local 503.  As Local Union President Sapp alone was authorized to
 negotiate with management on behalf of the Union with regard to local
 labor-management relations at the Los Angeles TRACON facility.  In
 January 1982 Sapp notified Respondent that he had designated certain
 individuals as "Unit Reps" (Unit Representatives) for various units
 within the Los Angeles TRACON, naming himself and George Woo as Unit
 Representatives for ARTS employees.  Actually Sapp served as Unit
 Representative and Woo served as Alternate Unit Representative in Sapp's
 absence.  As an Alternate Unit Representative Woo was not authorized to
 negotiate on behalf of the Local or process employee grievances.  While
 it is not entirely clear from the evidence precisely what duties Woo had
 when acting as a Unit Representative, it appears that his function was
 limited to simply being available to discuss with employees any job
 problems they might have if Sapp was not available.  /6/ Woo was also
 Secretary-Treasurer of the Local with responsibilities limited to
 keeping minutes of meetings and fiscal bookkeeping.
 
    The ARTS unit was composed of six employees called "watchstanders"
 who covered a seven day, around-the-clock work schedule.  In early March
 1982 one of the six employees tendered his resignation.  Apparently
 Respondent decided not to replace the employee and a schedule had to be
 designed to cover the workweek with five rather than six employees.
 Accordingly, on March 15, 1982 Don Jefferis, ARTS unit supervisor,
 posted a letter dated March 12 to ARTS unit employees in a Read and
 Initial Binder concerning the decrease of watchstanders.  /7/ The letter
 stated, inter alia:  "I require input (verbal or written) from each
 technician regarding a new watch schedule." The letter further stated:
 "This information is required immediately due to pending resignation of
 a watchstander." Attached to the letter was a then current schedule that
 Jefferis had modified for use until a new schedule became effective.
 
    When the five remaining watchstanders became aware that the work
 would now be performed by five rather than six employees, they attempted
 to design a workable schedule.  /8/ Four or five models were developed
 and passed from shift to shift for comment by the watchstanders and
 eventually reduced to two proposed schedules.  The proposals were given
 to Sapp who met with Jefferis on March 22 to discuss the matter.  /9/
 The meeting lasted approximately one-half hour during which time Sapp
 presented Jefferis with one of the proposed schedules and informed him
 that four of the five watchstanders expressed a willingness to work with
 it.  Jefferis reviewed the schedule and indicated his objection to the
 presence of certain "short turnaround" aspects of the proposal.
 Jefferis said he'd study the proposal and attempt to develop a different
 schedule and present it to the crew to see if they liked it.  Sapp
 replied that Jefferis should bring any proposal to him for discussion
 and he, in turn, would take it back to the crew, get their reaction and
 report back to Jefferis.  Jefferis indicated he'd reach a decision on
 the matter as soon as possible and let Sapp know of his decision no
 later than March 29.
 
    Thereafter, Jefferis reviewed Sapp's proposed schedule and another of
 his own which required four technicians to cover the shifts.  On March
 25, 1982 Jefferis went to the TRACON work area "to inform the people
 that were available at that time what (his) next step was going to be."
 Jefferis showed his four technician schedule to George Woo, informed him
 that he was going to put the schedule into effect and asked Woo for his
 comments.  Woo indicated his objection to the proposal based upon the
 manner in which weekend work was scheduled.  While Jefferis was talking
 to Woo, technician Al Davis came into the area and Jefferis also showed
 him the proposed schedule.  /10/
 
    On March 28, 1982 Jefferis posted his four technician schedule noting
 that the new watch schedule would be effective June 27, 1982.  After
 seeing the schedule, technician Stephen Herbst went to Jefferis and told
 him that the schedule was a difficult one to work and he didn't like it.
  Jefferis told Herbst to "come up with something else" if he could and
 Herbst said he would try.
 
    On March 30, 1982, Woo went to Jefferis' office and told Jefferis
 that if the posted technician schedule was modified by adding a "second
 week of days," the schedule would be substantially improved.  /11/
 Jefferis agreed and added that the modification would make it easier for
 him to assign work.  However, Jefferis indicated to Woo that he wouldn't
 do anything about the schedule until other watchstanders had an
 opportunity to see it.
 
    Sapp had been absent from work on sick leave from March 23 through
 March 29, 1982.  By letter dated March 31 Sapp provided Jefferis, and
 Jefferis' immediate supervisor, Wallace Ward, with the following letter:
 
          "This letter is to inform you that it is necessary for us to
       meet immediately to further negotiate the ARTS watch schedule.
       The schedule filed in the read binder dated March 28, 1982 is not
       one of the schedules that we discussed at our last meeting (March
       22, 1982).
 
          "If this schedule dated 3/28/82, is implemented it will be in
       violation of the Federal Service Labor-Management Relations
       Statute.  (Specifically Chapter 71 of TITLE 5 of the U.S. Code, 1.
       Section 7114(a)(1) and (2)(A).  2. Section 7116(a)(5)).
 
          "As exclusive representative of PASS, I am the sole bargaining
       agent in any matter affecting working conditions of personnel In
       the arts unit.  since no agreement to the proposed policy change
       was made between us, the schedule dated 3/28/82 is unacceptable
       and another meeting is necessary to resolve a bargaining
       agreement.
 
          Please notify me in writing by April 2, 1982 as to your
       intentions."
 
    On April 1, 1982 Jefferis and James Lougheed, Assistant Sector
 Manager of the Los Angeles Airway Facilities Sector, went to Sapp's work
 station to discuss the watch schedule as modified by Woo's suggestion.
 Lougheed said he was under the impression that the Woo schedule was
 acceptable to everyone and asked why it could not be adopted.  Sapp
 replied he didn't know for a fact that the Woo schedule was acceptable
 to everyone since he hadn't had an opportunity to talk to the entire
 crew about the matter.  Sapp indicated that if the crew agreed to the
 schedule, even if he personally didn't, then the Woo schedule could be
 implemented.  Sapp told Lougheed that he would talk to the crew and get
 back to him on April 4, which arrangement was acceptable to Lougheed.
 
    On April 5, 1982 Sapp wrote and delivered a letter to Lougheed's
 office concerning the watch schedule situation.  /12/ In the letter Sapp
 inter alia, rejected the Woo schedule, indicating that he had concluded
 his discussions with the crew and four of the five employees preferred a
 schedule which had all employees working 5 days followed by 2 days off,
 in order to avoid hardship to employees and their families.  /13/ Sapp
 further stated that he had not yet received a reply to his March 31
 letter, supra, and indicated he wished to be notified by April 12 as to
 Lougheed's "intentions."
 
    On April 6, 1982 Jefferis and Sapp had another meeting regarding the
 watch schedule.  /14/ Jefferis informed Sapp that he felt he had fully
 consulted on the watch schedule issue and would not negotiate on the
 matter with the Union.  Sapp replied that management's obligation was to
 negotiate with the Union and not merely consult.  Jefferis replied that
 he received word from his supervisor, Ward, that the only requirement
 Respondent had with PASS was the requirement under the "old" FASTA
 contract, to consult.  Sapp stated he still didn't have a reply from his
 March 31 letter, supra, and Jefferis responded it wasn't necessary for
 him to reply and, if he did, he'd do so "when he was damn good and
 ready." Jefferis then terminated the meeting.
 
    On April 8, 1982 Jefferis posted the Woo schedule in the Read and
 Initial Binder.  An accompanying letter informed employees that after he
 posted the March 28 watch schedule, Jefferis received a suggestion from
 Woo, "ARTS Unit Union Rep.", relating to the scheduling of watches which
 was reflected in the new schedule.  The letter indicated that the new
 schedule would be effective July 11, 1982.
 
    On April 13, 1982 Lougheed met with Sapp and attempted to assure him
 that Jefferis had considered all alternatives for the watch schedule.
 Lougheed asked Sapp what "hardships" Sapp was referring to in his March
 31 letter, supra, and Sapp replied that he and another employee would
 have hardships brought on by the watch schedule.  Thereafter, by letter
 dated April 20, 1982, Jefferis informed Sapp, inter alia, that the
 schedule Sapp submitted on March 22 was "carefully considered" but
 rejected, citing the reasons therefore.  The letter also noted that the
 schedule posted on April 8 "was adopted from information supplied by
 Woo, "ARTS Unit Union Rep.".
 
    On April 28, 1982 the Union filed the present unfair labor practice
 charge.
 
    Relevant Contract Provisions
 
    Since September 1982 Respondent and the Union have been engaging in
 negotiations for a national agreement.  However, during the period
 relevant hereto at the Los Angeles TRACON, the parties were "working
 with" or "working under" the 1977 FAA/FASTA agreement, supra.  /15/
 Article 54 of that agreement provides:
 
          "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."
 
    Regarding watch schedules and shift assignments, Article 37 of the
 agreement provides, in relevant part:
 
          "Section 1.  The basic watch schedule is concerned only with
       regular, recurring shift or work assignments and is defined as the
       days of the week, hours of the day, rotation of shifts, and change
       in regular days off.  Assignments of individual employees to the
       watch schedule are not considered as changes to the basic watch
       schedule.  The basic watch schedule will not be changed without
       prior consultation with the Union.  In developing the basic watch
       schedule, the sector manager/sector field office chief or their
       designee shall meet with the Union representative and carefully
       consider his/her views and recommendations concerning the
       schedule.  The objective of this meeting or meetings shall be to
       carefully and thoroughly examine the alternatives and options
       available as suggested by the Union representative."
 
    Positions of the Parties
 
    Counsel for the General Counsel and the Union essentially allege that
 Respondent violated the Statute by failing to negotiate in good faith
 with the Union and bypassing the Union by dealing directly with
 employees on the watch schedule change.  Respondent denies it was
 obligated to negotiate with the Union over the change and maintains its
 obligation to the Union was only to consult on the matter.  Respondent
 contends that, in any event, its dealings with Union Representative Sapp
 and Alternate Unit Representative Woo constituted negotiation on the
 change and further contends that the evidence is insufficient to
 establish a bypass.
 
    Discussion
 
    Clearly a change in work schedules is a matter over which an agency
 is obligated to negotiate with the collective bargaining representative,
 absent a clear and unmistakable waiver of bargaining rights.  U.S.
 Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982);
 Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No.
 2 (1981);  and National Treasury Employees Union, Chapter 66 and
 Internal Revenue Service Kansas, City Service Center, 1 FLRA 927 (1979).
  Respondent contends that such a waiver can be found in the FAA/FASTA
 agreement, supra, and urges that the Union is bound by the waiver.
 Counsel for the General Counsel and the Union contend that any waiver of
 statutory bargaining rights found in the FASTA agreement should not be
 held to bind PASS, the successor union to FASTA.
 
    In my view this issue is controlled by the Authority's decision in
 U.S. Nuclear Regulatory Commission, 6 FLRA 18 (1981).  In that case the
 American Federation of Government Employees (AFGE) represented various
 of the agency's employees and a negotiated agreement gave AFGE the right
 to use bulletin boards, except for posting material which reflected
 "adversely on individuals, organizations or activities of the Federal
 Government." The National Treasury Employees Union (NTEU) replaced AFGE
 as the certified collective bargaining agent and thereafter the
 agreement between AFGE and the agency terminated.  Subsequently, the
 agency removed from bulletin boards material posted by NTEU, citing the
 restrictions noted above contained in the negotiated agreement between
 AFGE and the agency pertaining to adverse material.  NTEU filed an
 unfair labor practice charge and the General Counsel issued a complaint
 contending the agency's actions unilaterally changed existing conditions
 of employment and a past practice.  The Authority held:
 
          " . . . 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 to 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 had 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."
 
    In the case herein FASTA, by executing Articles 54 and 37 in their
 agreement with Respondent, clearly and unmistakably waived its right to
 negotiate on changes in the watch schedule and opted to be consulted
 instead.  The testimony of Herbert Beard who participated on behalf of
 Respondent in the negotiations giving rise to the FASTA agreement
 strongly supports this conclusion.  Thus, Beard testified that during
 negotiations, FASTA consciously accepted consultation in place of its
 right to negotiate schedule changes in order to obtain an immediate
 agreement for dues withholding.
 
    I further conclude that, under the Authority's holding in Nuclear
 Regulatory Commission, supra, PASS and Respondent were obligated to
 continue "to the maximum extent possible" those practices which flowed
 from Articles 54 and 37 of the agreement which, like the clause relating
 to bulletin boards in Nuclear Regulatory Commission, created a binding
 condition of employment.  Indeed Sapp and Jefferis both acknowledged
 that employment practices were governed by the FASTA agreement.
 
    Counsel for the General Counsel and counsel for the Union seek to
 distinguish Nuclear Regulatory Commission from the case herein by
 attempting to limit the application of Nuclear Regulatory Commission to
 contract provisions which establish or define personnel policies,
 practices and terms and conditions of employment while excluding any
 waiver of a statutory right or matter concerned solely with the
 statutory relationships between the parties.
 
    I see nothing in Nuclear Regulatory Commission which suggests such a
 distinction.  Indeed, the language used by the Authority in that case
 points to a contrary conclusion.  Thus, as cited above, the Authority
 found in a similar situation that continuing the policies, practices and
 matters concerning working conditions "to the maximum extent possible"
 fosters stability in labor management relations.  Such language is quite
 broad and I discern nothing therein which would indicate the principle
 would not be applicable when the issue is one of honoring a waiver of a
 union's right to negotiate in a specific situation, noting particularly
 that the predecessor union received a checkoff clause in return
 therefore.  While, as counsel for the Union points out, this approach
 may well be different from that followed under the National Labor
 Relations Act, there 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.  Accordingly, I
 conclude that Respondent's obligation herein was limited to consultation
 with the Union regarding the change in the ARTS work schedule.
 
    Although neither the General Counsel nor the Union has argued that
 Respondent in fact did not consult with the Union on the matter, I
 nevertheless conclude, based upon the evidence herein, that Respondent
 fulfilled its obligation to consult with the Union concerning the change
 in the watch schedule.  /16/ Thus, Respondent met with Sapp on March 22,
 1982, received the Union's proposal, discussed it and gave Sapp its
 reasons why it found the Union's proposal unacceptable.  Thereafter,
 Respondent was available to Sapp for further discussion at all times
 prior to deciding what schedule to adopt and indeed, sought him out on
 two occasions to discuss the matter.  In my view Respondent thus
 satisfied its contractual obligation to consult with the Union on the
 change.  Sapp's insistence on procedures more consonant with
 negotiations then consultations could not expand Respondent's obligation
 under the contract.
 
    However, while Respondent may have been obligated only to consult and
 not negotiate with the Union on the change, this did not obviate
 Respondent's obligation under the Statute to deal only with the Union on
 the matter and not bypass the Union and deal directly with unit
 employees.  The contract did not grant any such privilege to Respondent
 /17/ and no clear and unmistakable waiver of the Union's right not to be
 bypassed was otherwise evident from the evidence presented. /18/ The
 Union may have been bound by a waiver of its right to negotiate on
 schedule changes, but that waiver should be narrowly construed and not
 operate to permit an otherwise prohibited act which tends to deprecate
 the Union and erode whatever strength of persuasion it retained through
 its right of consultation.  This is especially true where, as herein,
 the Union was seeking to utilize (indeed maximize) whatever rights it
 had to deal with the employer.  PASS would have had the right to
 negotiate on the schedule change but for the existence of the
 contractual waiver noted above.  However, neither PASS nor FASTA waived
 the right to be the only representative of the employees which are
 prescribed by the Statute.  I conclude such direct dealings undermined
 and impaired the Union's status as exclusive representative.  See
 Department of Health, Education and Welfare, Social Security
 Administration, 1 FLRA 508 (1979) and Iowa National Guard and National
 Guard Bureau, 8 FLRA 500 (1982).  As stated by the Federal Labor
 Relations Council in Department of the Navy, Naval Air Station, Fallon,
 Nevada, 3 FLRC 698 at 700 (1975):
 
          " . . . when a labor organization has been selected as the
       exclusive representative of employees in an appropriate unit,
       agency management must deal with it only, to the exclusion of
       other labor organizations and without engaging in direct
       negotiations with unit employees over matters within the scope of
       the collective bargaining relationship.  To permit otherwise would
       allow agency management to avoid the responsibility owed to the
       exclusive representative to treat it as the only formal
       representative who speaks for all unit employees."
 
    Thus, I conclude that while Respondent was not obligated to negotiate
 with the Union on the watch schedule change, this did not privilege
 Respondent to deal directly with unit employees (or with other labor
 organizations) on the change, a matter "within the scope of the
 collective bargaining relationship."
 
    Notwithstanding such absence of any right to deal directly with
 employees on the watch schedule change, Jefferis:  solicited comments
 from ARTS unit employees by posting the letter in the Read and Initial
 Binder on March 15, 1982;  showed his proposed schedule to watchstander
 Woo and solicited his comments;  also showed his proposal to
 watchstander Davis at that same time;  asked watchstander Herbst, while
 discussing a schedule on March 28, to "come up with something else" if
 he could;  on March 30 discussed with Woo a modification Woo suggested,
 indicating that comments on the schedule by other watchstanders would
 also be considered;  and ultimately adopted a large measure of Woo's
 proposal.  /19/ In these circumstances I conclude that Jefferis'
 contacts with unit employees as stated above constituted a bypass of the
 Union in violation of section 7116(a)(1) and (5) of the Statute.
 
    Respondent contends that when dealing with Woo, Jefferis was dealing
 with the Union since Woo was the Alternate Unit Representative for the
 ARTS unit and Sapp was absent from work at that time.  I find and
 conclude that Woo was not acting on behalf of the Union when discussing
 the watch schedule change with Jefferis.  I do not credit Jefferis'
 testimony that he believed he was dealing with the Union when discussing
 the schedule change with Woo.  Rather, I find that Jefferis considered
 Woo only as an interested watchstander.  It is clear from the evidence
 that Woo was not authorized to negotiate with Respondent on behalf of
 the Union and Respondent was never informed that Woo had any such
 authority.  During his first meeting with the Union on this matter on
 March 22, 1982, Jefferis was informed by Sapp that proposals should be
 brought to Sapp for discussion and Sapp would contact the ARTS crew.
 Although Sapp was on sick leave from March 23 through March 29 there is
 no evidence or claim of any overriding exigency which would justify
 Respondent dealing with other than the designated Union representative
 about the matter.  /20/ Further, Jefferis acknowledged in his testimony
 that when he went to the TRACON work area on March 25 and talked to Woo
 and Davis, he went "to inform the people that were available at that
 time what (his) next step was going to be." Clearly Jefferis was not
 seeking out Woo as a Union representative but rather expected to discuss
 the matter with any watchstander on duty.  Indeed, Jefferis' own
 testimony regarding his meeting with Woo on March 30 indicates he was
 aware that Woo was presenting "his" plan and not the Union's.
 
    Having found that Respondent has engaged in conduct prohibited by
 section 7116(a)(1) and (5) of the Statute, I recommend that the
 Authority issue the following:
 
                                   ORDER
 
    Pursuant to section 2430.20 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the Department of Transportation, Federal
 Aviation Administration, Los Angeles, California, shall:
 
    1.  Cease and desist from:
 
          (a) Bypassing the Professional Airways System Specialists, the
       exclusive representative of its employees, and dealing directly
       with unit employees concerning personnel policies and practices
       and matters affecting working conditions relative to changing
       watch schedules.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Post at Los Angeles TRACON facility, copies of the attached
       Notice on forms to be furnished by the Federal Labor Relations
       Authority.  Upon receipt of such forms, they shall be signed by
       the Airway Facilities Sector Manager 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 Sector
       Manager shall take reasonable steps to insure that such Notices
       are not altered, defaced, or covered by any other material.
 
          (b) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify that Regional Director, Region VIII, Federal
       Labor Relations Authority, 350 South Figueroa Street, 10th Floor,
       Los Angeles, California 90071, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply
       herewith.
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  March 11, 1983
 
    Washington, D.C.
 
                                 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
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT bypass the Professional Airways Systems Specialists, the
 exclusive representative of our employees, and deal directly with unit
 employees concerning personnel policies and practices and matters
 affecting working conditions relative to changing watch schedules.
 
    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.
                                       (Agency or Activity)
                                       BY:  (Signature)
 
    DATED:  . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice, or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Region VIII, Federal Labor Relations Authority, 350
 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and
 whose telephone number is:  (213) 688-3805.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The relevant contract provisions provide 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.
 
            ARTICLE 37 - WATCH SCHEDULES AND SHIFT ASSIGNMENTS
 
          Section 1.  The basic watch schedule is concerned only with
       regular, recurring shift or work assignments and is defined as the
       days of the week, hours of the day, rotation of shifts, and change
       in regular days off.  Assignments of individual employees to the
       watch schedule are not considered as changes to the basic watch
       schedule.  The basic watch schedule will not be changed without
       prior consultation with the Union.  In developing the basic watch
       schedule, the sector manager/sector field office chief or their
       designee shall meet with the Union representative and carefully
       consider his/her views and recommendations concerning the
       schedule.  The objective of this meeting or meetings shall be to
       carefully and thoroughly examine the alternatives and options
       available as suggested by the Union representative.
 
 
    /2/ The record indicates in this connection that the Respondent was
 placed in the position of having to effect a change in the existing
 watch schedule when the number of employees previously manning the
 schedule was reduced by the resignation of one employee.
 
 
    /3/ Compare U.S. Department of the Air Force, 47th Air Base Group
 (ATC), Laughlin Air Force Base, Texas, 4 FLRA 469 (1980), wherein the
 Authority adopted the Judge's conclusion that management's discussions
 with unit employees did not constitute an unlawful bypass of the
 exclusive representative because the conversations were conducted solely
 to disseminate and gather necessary personal information and did not
 concern conditions of employment affecting employees in the unit
 generally;  management did not solicit or entertain proposals from unit
 employees;  management did not attempt to negotiate or deal directly
 with unit employees in order to obtain their agreement with management's
 position;  and management did not attempt thereby to put pressure on the
 union to take a certain course of action.  Compare also Kaiserslautern
 American High School, Department of Defense Dependents Schools, Germany
 North Region, 9 FLRA No. 184 (1982), wherein the Authority found
 thatmanagement's polling of employees for the purpose of gathering
 information to support its application for school accreditation by an
 independent accrediting agency did not constitute unlawful direct
 dealings with employees over matters affecting their conditions of
 employment.
 
 
    /4/ The allegations appear as amended at the hearing.
 
 
    /5/ Counsel for the General Counsel's unopposed motion to correct the
 transcript is hereby granted.
 
 
    /6/ Sapp testified that a Unit Representative was "someone . . . that
 other employees could go to and speak about problems that might arise."
 Woo testified that in Sapp's absence he "would handle any problems that
 might come up with people in our Unit."
 
 
    /7/ Posting notices on the Read and Initial Binder was the primary
 means of communication between Jefferis and watchstanders who are
 required to check the binder at the beginning of each watch and initial
 each new notice to indicate it had been read.
 
 
    /8/ It is not clear whether this attempt was directly the result of
 Jefferis' letter in the Read and Initial Binder or the remaining
 watchstanders began their attempt before Jefferis' notice was posted.
 
 
    /9/ The following is a composite of the credited portions of Sapp's
 and Jefferis' testimony.
 
 
    /10/ This version of the March 25 incident is a composite of the
 credited testimony of Jefferis and Woo.
 
 
    /11/ Jefferis' testimony on this meeting characterizes Woo's
 modification in terms of "he . . . had a plan" and "his plan."
 
 
    /12/ Sometime between April 1 and April 5, Lougheed approached Sapp
 toward the conclusion of Sapp's shift and attempted to discuss
 scheduling but Sapp refused, indicating he was "too tired" to do so at
 that time.
 
 
    /13/ Such a schedule is similar to the one Sapp proposed to Jefferis
 on March 22, supra.
 
 
    /14/ I credit Sapp's version of this meeting in that it was more
 complete, less conclusionary in expression and was more in accord with
 the other facts of this case.  However, Sapp's testimony is also less
 than a model of clarity in various respects.
 
 
    /15/ Sapp testified the parties were "working with" the agreement and
 Jefferis testified they were "working under" the agreement.
 
 
    /16/ See Article 37 of the collective bargaining agreement, supra,
 which defines "consultation."
 
 
    /17/ Article 37 of the FASTA agreement indicates that alternatives
 and options suggested by the Union would be examined.
 
 
    /18/ The record contains some testimony which could be interpreted to
 support the existence of a past practice whereby Respondent had
 previously sought out employees' opinions when watch schedules were to
 be changed in the past.  However, in order to establish a past practice
 the evidence must show that the practice was consistently exercised for
 an extended period of time and the parties were aware that such a
 practice was being followed.  Internal Revenue Service and Brookhaven
 Service Center, 6 FLRA 713 (1981).  In the case herein the testimony
 adduced in this regard was essentially conclusionary in nature and no
 testimony was adduced which indic