16:1001(133)CA PASS, LOCAL 301 VS DOT, FAA -- 1984 FLRAdec CA



[ v16 p1001 ]
16:1001(133)CA
The decision of the Authority follows:


16 FLRA NO. 133

U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
AIRWAYS FACILITIES SECTOR
CHICAGO O'HARE AIRPORT
CHICAGO, ILLINOIS

     Respondent

     and

PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, LOCAL 301

     Charging Party

Case No. 5-CA-20057

DECISION AND ORDER

This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations.

Upon consideration of the entire record, including the stipulation of facts, accompanying exhibits, and the contentions of the parties, 1 the Authority finds:

The complaint herein alleges that U.S. Department of Transportation, Federal Aviation Administration, Airways Facilities Sector, Chicago O'Hare Airport, Chicago, Illinois (Respondent) violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations [ v16 p1001 ] Statute (the Statute) 2 when it refused to negotiate with Professional Airways Systems Specialists, Local 301 (the Union) over its decision to terminate the employee shuttle which was implemented by an agreement between the Respondent and the Union. The complaint alleges further that the Respondent's conduct herein constituted a clear and patent breach of that agreement, in violation of section 7116(a)(1) and (5).

The Respondent Activity maintains its facility at Chicago O'Hare Airport, Chicago, Illinois, known as the Airways Facilities Sector, which has as its headquarters the Chicago O'Hare Air Traffic Control Tower (ATCT) Building at the airport. In addition, the Respondent maintains numerous other facilities at or near the airport, including one called the Elk Grove Staging Area (Elk Grove facility), which is located west of the airport in Elk Grove Village, Illinois.

The Union was certified on January 9, 1978, as the exclusive representative of a unit of all non-supervisory electronic technicians at the Activity. The electronic technicians are primarily responsible for the maintenance and repair of Respondent's airways facilities equipment at approximately 80 locations at O'Hare Airport.

In November 1979, the point of duty was changed for the electronic technicians in the Environmental Support Unit and the Logistics Unit, from the Activity's headquarters at the O'Hare ATCT Building to the Elk Grove facility. Approximately 15 members of the bargaining unit were affected.

Upon arrival at Elk Grove at the beginning of their shift, employees use government vehicles provided by the Activity to travel to equipment sites where they perform their regular duties. In July 1980, as a result of negotiations with the Union, the Activity agreed to authorize use of [ v16 p1002 ] one of these government vehicles for an employee shuttle from a facility on the east side of the airport called the "RTR - C site" to the Elk Grove facility in the morning, and back at the end of the day. The shuttle operated for a few days and stopped. The shuttle was reestablished by a memorandum from the Respondent dated December 9, 1980, after a meeting between the Activity and the Union. On December 22, 1980, the Activity and the Union signed an agreement which stated that the shuttle "shall be governed by the procedures specified" in the December 9 memorandum to employees.

After the shuttle was reestablished, employees drove their private vehicles from their homes to the RTR - C site, where they parked and assembled. They then drove the shuttle vehicle to the Elk Grove facility, arriving at the beginning of their shift. Thirty minutes prior to the end of their shift, the affected employees would depart from the Elk Grove facility in the shuttle vehicle and travel back to the RTR - C site. The users of the shuttle usually had access to two-way radios which could be used by supervisors to direct employees to equipment and other sites where they were required to work, but the record does not indicate that the shuttles ever were diverted for work purposes.

On September 16, 1981, based upon notice that operation of the shuttle bus was contrary to 31 U.S.C. 638a(c)(2), 3 the Respondent advised the Union by memorandum that the parties' agreement to reestablish the shuttle would have to be withdrawn effective October 3, 1981, and offered to negotiate the impact and implementation of the decision. When the parties met on October 7, 1981, the Union took the position that the decision to terminate the shuttle, as well as the impact of the decision, was negotiable, and declined to negotiate about only the impact and implementation of the decision to end the shuttle. The Activity offered again to negotiate over impact and implementation and took the position that the decision to end the shuttle service was nonnegotiable because it was inconsistent with the previously cited provisions of Federal law. The Activity terminated the operation of the shuttle effective November 1, 1981. [ v16 p1003 ]

The Authority has previously determined that a proposal involving shuttle bus transportation of employees from a point between their homes and their workplaces was not inconsistent with 31 U.S.C. 638a(c)(2), and was therefore negotiable, if (1) such transportation of employees were incident to use of the Government vehicle for official purposes as determined by the agency within its administrative discretion; and (2) such transportation of employees were itself within the Government's interest as determined by the agency within its administrative discretion, subject to collective bargaining. The Authority further stated that a determination as to whether a particular use is in the Government's interest "is a matter within the agency's administrative discretion and, hence, subject to bargaining." American Federation of Government Employees, AFL - CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982). In the instant case, discontinuance of the shuttle service was not required by law and a decision on whether to continue such service was within the agency's administrative discretion, subject to collective bargaining. By its refusal to bargain concerning the discontinuance of the shuttle, the Activity violated section 7116(a)(1) and (5) of the Statute.

The Authority finds that a status quo ante remedy is appropriate in these circumstances, where the decision to discontinue the shuttle service was itself within the duty to bargain. See Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 16 FLRA No. 99 (1984); Department of Transportation, Federal Aviation Administration, Washington, D.C., and its Chicago Airways Facilities Sector, 16 FLRA No. 71 (1984).

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the U.S. Department of Transportation, Federal Aviation Administration, Airways Facilities Sector, Chicago O'Hare Airport, Chicago, Illinois, shall:

1. Cease and desist from:

(a) Unilaterally terminating the RTR - C site - Elk Grove employee shuttle without affording the Professional Airways Systems Specialists, [ v16 p1004 ] Local 301, the exclusive representative of a unit of its employees, the opportunity to negotiate concerning the substance of such proposed action.

(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) Reestablish the RTR - C site - Elk Grove employee shuttle which was terminated on November 1, 1981 without bargaining in good faith with Professional Airways Systems Specialists, Local 301.

(b) Notify the Professional Airways Systems Specialists, Local 301, of any proposed decision to terminate the shuttle and, upon request, afford such representative the opportunity to negotiate concerning the substance of such proposed action.

(c) Post at its facilities 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 Manager, Airways Facilities Sector, O'Hare Airport, 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 Federal Labor Relations Authority's Rules and Regulations, notify the Regional Director, Region V, 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. December 24, 1984

Henry B. Frazier III, Acting Chairman

Ronald W. Haughton, Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v16 p1005 ]

                         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 terminate the RTR - C site - Elk Grove employee shuttle without affording the Professional Airways Systems Specialists, Local 301, the exclusive representative of a unit of our employees, the opportunity to negotiate concerning the substance of our proposed action.

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 reestablish the RTR - C site - Elk Grove employee shuttle which was terminated November 1, 1981 without bargaining in good faith with the Professional Airways Systems Specialists, Local 301.

WE WILL notify the Professional Airways Systems Specialists, Local 301, of any proposed decision to terminate the shuttle and, upon request, afford such representative the opportunity to negotiate concerning the substance of our proposed action.

                                _______________________________
                                          (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 V, Federal Labor Relations Authority, whose address is: 175 W. Jackson Boulevard, Suite 1359-A, Chicago, Illinois 60604 and whose telephone number is: (312) 353-6306. [ v16 p1006 ]

FOOTNOTES

Footnote 1 The General Counsel moved to strike several documents attached to the Respondent's brief and any arguments predicated thereon, contending that the documents were not a part of the stipulation. In reaching its decision in the instant case, the Authority has, of course, considered only facts contained in the stipulation, and therefore the motion to strike is denied.

Footnote 2 Section 7116(a)(1) and (5) provides: 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.)

Footnote 3 31 U.S.C. 638a(c)(2) provides: 638a: Restrictions on purchase, operation, use and maintenance of passenger motor vehicles and aircraft (c) Unless otherwise specifically provided, no appropriation available for any department shall be expended-- (2) for the maintenance, operation, and repair of any governm