17:0142(26)CA - FAA, Washington, DC and Professional Airways Systems Specialists -- 1985 FLRAdec CA
[ v17 p142 ]
The decision of the Authority follows:
17 FLRA No. 26 FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. Respondent and PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS Charging Party Case No. 9-CA-30480 DECISION AND ORDER The Administrative Law Judge issued her Decision in the above entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and the General Counsel filed an opposition to the Respondent's exceptions. /1/ 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. /2/ The Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the impact and implementation of a reorganization involving the Respondent's Northwest Mountain Region. The Judge also found that the Respondent's failure to notify the Charging Party's designated representative for purposes of bargaining over the reorganization constituted a further violation of section 7116(a)(1) and (5). To remedy these unfair labor practices, the Judge recommended a status quo ante remedy and a nationwide posting of the remedial unfair labor practice notice. In agreement with the Judge, but for the following reasons, the Authority finds that the Respondent's refusal to bargain over the impact and implementation of the reorganization constituted a violation of section 7116(a)(1) and (5) of the Statute. Subsequent to the Judge's Decision in this case, the Authority issued its decision in Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington, 14 FLRA 644 (1984). That case involved the same Respondent, Federal Aviation Administration (FAA), the same union as Charging Party, Professional Airways Systems Specialists (PASS), and an identical assertion by the agency that provisions in an expired agreement negotiated by the union's predecessor constituted a waiver of the union's right to bargain over various changes in unit employees' conditions of employment. In that case the Authority determined, in part, that following the expiration of an agreement, either party may terminate matters contained in the agreement relating to permissive subjects of bargaining. Since the provisions in the expired agreement waiving certain bargaining rights were permissive in nature and the union indicated that it no longer wished to be bound by such provision, the Authority found that the agency could not insist upon the continuation of the waiver provisions and deny the union its statutory right to bargain. In the instant case, and as more fully explained in the Judge's Decision, the Respondent sought to limit the Charging Party's right to negotiate over the impact and implementation of a reorganization to one of consultation by virtue of waiver provisions contained in the expired agreement. Upon learning of the reorganization, the Charging Party's President, who previously had informed the Respondent that he was the only authorized representative to bargain over reorganizations, made numerous requests to bargain. In the Authority's view, and based upon the reasons more fully set forth in Federal Aviation Administration, Northwest Mountain Region, supra, once the Charging Party indicated that it wished to negotiate over the impact and implementation of the reorganization and not merely to consult, the Respondent was no longer free to insist upon a continuation of the provisions in the expired agreement which limited the bargaining obligation to consultation. By refusing to bargain with the Charging Party, upon the latter's request, the Authority finds, in agreement with the Judge, that the Respondent violated section 7116(a)(1) and (5) of the Statute. /3/ In further agreement with the Judge, the Authority finds that the Respondent's failure to notify the duly authorized bargaining representative of the Charging Party for the purpose of bargaining over the impact and implementation of the reorganization constituted a violation of section 7116(a)(1) and (5). See Department of Transportation, Federal Aviation Administration, San Diego, California, 15 FLRA No. 86 (1984), and cases cited therein. However, while the Authority adopts the Judge's conclusions with respect to the unfair labor practice findings, the Authority finds that the recommended status quo ante remedy and the nationwide posting of a remedial notice are not warranted in the circumstances of this case. First, with respect to the status quo ante remedy, the Judge recommended that the Respondent be ordered to rescind implementation of the reorganization involved herein, and restore all conditions of employment affecting unit employees which were in effect prior to the reorganization, "including offering to relocated and former employees the option of returning as employees to their former duty stations." In reaching this result, the Judge looked to Federal Correctional Institution, 8 FLRA 604 (1982), to find that the Respondent did not properly notify the Charging Party's designated bargaining representative; that the Charging Party made repeated requests to bargain; that the Respondent willfully refused to bargain; that the impact of the reorganization on unit employees was severe; and that a return to the status quo ante would not create an excessive degree of disruption in the Northwest Mountain Region. The Authority does not agree with the Judge's assessment of the degree of disruption which would be created by a status quo ante remedy. In this connection, the record reveals that the reorganization is part of an overall plan of the FAA to create larger sector organizations and reduce smaller sector elements in an effort to consolidate existing work centers and more efficiently utilize the work force. The Respondent sought to do this by reducing the number of sector headquarters from eleven to five and by closing various field offices within those sector headquarters. The Respondent then proceeded to reassign employees to accord with the new sector configuration. The record indicates that some bargaining unit employees transferred to new locations, that others resigned rather than relocate, and that still other employees retired from Federal employment altogether. /4/ The effect of the Judge's recommended remedy would be to reestablish offices which were scheduled to be closed; relocate employees, at their option, to their former posts of duty; and offer reemployment to employees who resigned or retired and provide them the option of also returning to their former posts of duty, all until such time as the parties bargained concerning the impact and implementation of the reorganization. In the Authority's view, this would seriously disrupt the accomplishment of the Respondent's mission and the efficiency of its operations. As previously noted, the stated purpose of the overall sector reorganization was to more fully utilize existing resources. To accomplish this, the Respondent consolidated various organizational elements and eliminated others. An order which would now require the Respondent to reestablish organizational components and to rehire and relocate employees would seriously impair the Respondent's ability to efficiently utilize its resources and effectively maintain its operation. The Judge even recognized that the proposed remedy might create an imbalance in the workload but suggested that the Respondent could draw upon other personnel to fill in any resultant gaps. The Judge further surmised that in any event few employees would exercise their option to relocate for what might be only a temporary period of time pending negotiations. In the Authority's view, this suggestion would create even more inefficiency by retaining personnel where the Respondent has determined they are no longer needed and by taking personnel away from those locations where the Respondent has determined they are needed to perform the work of the agency. The Authority is not unmindful of the serious consequences which flow to unit employees as the result of an agency reorganization, such as involved herein. In such a situation, a goal of collective bargaining should be to mitigate the adverse effects and disruption which are incurred by the affected employees. In the Authority's view, an order which would require the Respondent to give priority consideration to transferred unit employees for existing or future vacancies, for which they are qualified, in the Northwest Mountain Region, and which would require the Respondent to bargain with the Charging Party to the extent consonant with law and regulation concerning the impact and implementation of the reorganization would effectuate the purposes and policies of the Statute. /5/ With respect to the bargaining order, the Authority notes particularly that the reorganization has not been fully implemented and that certain employees who were scheduled to be transferred were still at their duty stations and had not been relocated as of the date of the hearing in this matter. As to the posting of a remedial unfair labor practice notice, the Authority finds that a posting in the Northwest Mountain Region, where the instant violations have occurred, will best effectuate the purposes and policies of the Statute. Thus, consistent with the Authority's findings in similar situations involving FAA's unlawful insistence on a waiver of the Charging Party's statutory rights, the posting of a remedial notice at the locations where such unlawful conduct has occurred is warranted. See Federal Aviation Administration, Northwest Mountain Region, supra; Federal Aviation Administration, San Diego, California, supra; and Department of Transportation, Federal Aviation Administration, Los Angeles, California, 15 FLRA No. 21 (1984). The Authority notes, moreover, that the unlawful conduct in the instant case occurred prior to the issuance of the Authority's decision in Federal Aviation Administration, Northwest Mountain Region. As there is no indication that the FAA has refused to abide by the Authority's decision in that case or in the other cited cases, or that it will continue to engage in such unlawful conduct in the future, the Authority finds no basis on which to order a different posting requirement than that ordered herein. 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, Washington, D.C., shall: 1. Cease and desist from: (a) Any further implementation of the sector reorganization in the Northwest Mountain Region without first notifying the Professional Airways Systems Specialists, the exclusive representative of its employees, and affording it an opportunity to negotiate on the procedures to be observed in any further implementation of the reorganization and on appropriate arrangements for employees who have been or may be affected by the reorganization. (b) Failing to give notice of any planned reorganization to the designated representative of the Professional Airways Systems Specialists, the exclusive representative of its employees, for the purpose of bargaining to the extent consonant with law and regulation. (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) Give priority consideration to transferred unit employees for existing and future vacancies, for which they are qualified, in the Northwest Mountain Region. (b) Upon request by the Professional Airways Systems Specialists, the exclusive representative of its employees, and to the extent consonant with law and regulation, bargain over the procedures to be observed in implementing the sector reorganization in the Northwest Mountain Region, and on appropriate arrangements for employees who have been or may be affected by the reorganization. (c) Post at its facilities in the Northwest Mountain Region, 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., March 11, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., 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 further implement the sector reorganization in the Northwest Mountain Region without first notifying the Professional Airways Systems Specialists, the exclusive representative of our employees, and affording it an opportunity to negotiate on the procedures to be observed in any further implementation of the reorganization and on appropriate arrangements for employees who have been or may be affected by the reorganization. WE WILL NOT fail to give notice of any planned reorganization to the designated representative of the Professional Airways Systems Specialists, the exclusive representative of our employees, for the purpose of bargaining to the extent consonant with law and regulation. 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 give priority consideration to transferred unit employees for existing and future vacancies, for which they are qualified, in the Northwest Mountain Region. WE WILL, upon request by the Professional Airways Systems Specialists, the exclusive representative of our employees, and to the extent consonant with law and regulation, bargain over the procedures to be observed in implementing the sector reorganization in the Northwest Mountain Region, and on appropriate arrangements for employees who have or may be affected by the reorganization. . . . (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 No.: 9-CA-30480 John J. Callahan, Counsel for Respondent Joseph E. Kolick, Jr. Counsel for Charging Party Stefanie Arthur, Counsel for the General Counsel Federal Labor Relations Authority Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454. 92 Stat. 1192, 5 U.S.C. 7101 et seq. (1982), commonly known as the Federal Service Labor-Management Relations Statute, and hereinafter referred to as the "Statute," and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. On July 14, 1983, Counsel for the Charging Party (also referred to herein as the "Union" or "PASS") filed an unfair labor practice charge alleging violations of Sections 7116(a)(1) and (5) of the Statute. The General Counsel of the Federal Labor Relations Authority ("Authority") investigated the charge and, on October 12, 1983, filed the complaint initiating this proceeding. The complaint alleges that Respondent, "(o)n or about April 22, 1983, decided to reorganize the National Airspace System (NAS) Airway Facilities Sectors in Respondent's Northwest Mountain Region by, inter alia, reducing the number of Sector Headquarters within said Region from eleven to five," without notice to the Union's designated representative, Howard Johannssen; that implementation of the reorganization began on or about May 2, 1982; and that since at least April 22, 1983, and continuing to date, Respondent has failed and refused to negotiate with the Union, after several requests, concerning the impact and implementation of the reorganization. By such acts, the complaint alleges that Respondent has engaged, and is engaging in unfair labor practices, in violation of Sections 7116(a)(1) and (5) of the Statute. /6/ See paragraphs 7 through 10 of the complaint, which is in evidence as General Counsel's Exhibit 1(d). Respondent admits that it commenced implementation of the reorganization, on or about May 2, 1983, and alleges that, consistent with the Authority's ruling in U.S. Nuclear Regulatory Commission ("NRC"), 6 FLRA No. 9, 6 FLRA 18 (1981), it notified the union representatives designated in "the controlling labor agreement," and requested their "comments", which were not received. See paragraphs 6, 7d and 9 of Respondent's answer, which is General Counsel's Exhibit 1(e). Respondent also admits receiving a request to bargain from the Union's president, but alleges that, under "the controlling labor agreement," it was only required to consult. See paragraph 8b of Respondent's answer. The "controlling labor agreement" to which Respondent refers is a 1977 one entered into with a predecessor union, Federal Aviation Science and Technological Association ("FASTA"). A hearing was held on the matter in Seattle, Washington, on December 6 and 7, 1983. The parties appeared, introduced exhibits, and examined witnesses. Briefs were received from Respondent, on January 4, 1984, and from the General Counsel and the Charging Party, on January 5. Based upon the record made in this proceeding, my observation of the demeanor of the witnesses, and the briefs, I enter the following findings of fact and conclusions of law, and recommend the entry of the following order. Findings of Fact /7/ 1. At all times material herein, Respondent has been, and is, an agency within the meaning of Section 7103(a)(3) of the Statute. 2. At all times material herein, the Union has been, and is, a labor organization within the meaning of Section 7103(a)(4) of the Statute. 3. Since December 31, 1981, the "PASS" has been certified as the exclusive representative of an appropriate nationwide consolidated unit of employees of Respondent including, inter alia, field maintenance employees employed in Respondent's Northwest Mountain Region, Airway Facilities Division. This certification followed an election, supervised by the Authority, in which PASS defeated the incumbent union, FASTA. See TR 56-57. 4. Prior to December 31, 1981, PASS had been certified in smaller units of Respondent, going back to 1977. Since February 1977, Howard E. Johannssen has been President of PASS. 5. The Director of Respondent's Northwest Mountain Region ("NW Region") is Charles Foster. The NW Region covers the seven northwestern states within the continental United States. There are six operating program divisions within the NW Region: airway facilities, which is the division involved in this action and will be referred to herein as the "AF Division"; aircraft certification; flight standards; air traffic; airports; and air civil aviation security. 6. Since August 22, 1982, Frederick M. Issac has been Manager of Respondent's AF Division in the NW Region, and in such capacity has been a supervisor and/or management official within the meaning of Section 7103(a)(10) and/or (11) of the Statute, and an agent of Respondent. 7. A primary function of an AF Division is to maintain equipment. In the NW Region there are now five "AF Sector Headquarters" which report to the AF Division (R 10). Each "Sector Headquarters" covers a specific geographic area, and has "Sector Field Office(s)" and "Unit(s)" reporting to it (R 10). The maintenance work is done in the Sector Field Offices. An AF Division Manager has full responsibility over all employees in the division. 8. Respondent has a National Airspace System Plan ("NASP") dated December 1981 which incorporates "the Airway Facilities 80's Maintenance Program" ("80's Program"). See page 5 of GC 11. Among other things, the 80's Program calls for "consolidation of existing work centers and more efficient utilization of the work force" (ibid). This maintenance program is in accordance with FAA Order 1100.127B, which "provides for sector configurations and organizations commensurate with the need for larger sector organizations and a corresponding reduction of subelements such as sector field offices, sector field units, and sector field office units" (underlining in original) (GC 16, para 5d, page 2). 9a. On January 8, 1982, soon after certification, the President of PASS, Mr. Johannssen wrote to the Administrator of the Federal Aviation Administration ("FAA") as follows: As you know on December 31, 1981, the Professional Airways Systems Specialists (PASS) was officially certified as the exclusive bargaining representative for the nationwide unit of systems specialists. As such, PASS has the right to bargain collectively with the FAA with respect to the conditions of employment of all employees in the unit, and the FAA has the duty to refrain from implementing any changes in conditions of employment with unit members prior to conclusion of good faith bargaining. We look forward to the early commencement and speedy conclusion of a comprehensive collective bargaining agreement. In the interim, however, 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. In this regard, PASS is aware that the FAA, in the near future, plans to publish its "80's Maintenance Program." PASS expects to receive a copy of this document and further expects to receive specific notice of any changes affecting conditions of employment proposed thereby. PASS also demands that the FAA refrain from implementing any such changes themselves or impact and implementation procedures as may be appropriate. In conclusion, I wish to state that I am looking forward to fruitful and harmonious labor relations between PASS and FAA. Let's be certain to get off on the right foot. See GC 2. b. FAA responded on January 21 to PASS's January 8 letter. Its Director of Labor Relations, E. V. Curran wrote as follows: This acknowledges your January 8 letter to the Administrator in which you describe the PASS certification and state among other things that "In the interim, however, PASS will demand strict compliance by the FAA with its obligation to bargain collectively and to refrain from unilateral changes." The Federal Aviation Administration 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. I hope your organization is not dedicated to the confrontational tactics that proved so destructive to that organization and its members. Let me assure you that the FAA is fully committed to recognizing the legitimate interests of all duly certified labor unions within the law but will not be receptive to rhetoric such as your January 8 letter. See GC 3. 10a. On January 14, 1982, a PASS Regional Vice-President, Lawrence Sump, called Mr. Johannssen to advise him of information he was receiving from employees in the NW Region about changes, particularly a reorganization. b. In a telephone conversation on January 18, Mr. Johannssen made a demand to bargain over the changes to a Mr. Payne, who is in the labor relations section of FAA's NW Region. Mr. Payne responded that: "Well, you know what our position is, Howard. We will consult" (TR 44). Mr. Payne told Mr. Johannssen that a reorganization plan had not yet been approved. Mr. Payne offered to provide information to the two PASS Regional Vice-Presidents whose regions encompassed the NW Region. Mr. Johannssen advised Mr. Payne that he was the negotiator and should receive the information. 11a. On February 2, 1982, Mr. Johannssen wrote to the FAA Administrator to advise him that "unless specific notice to the contrary is given, the only representative authorized to negotiate on behalf of PASS with respect to the following subjects is Howard E. Johannssen, President of PASS" (GC 4, page 1). Among the subjects named were: (1) "The closing, consolidation or relocation of FAA facilities;" and (2) "Any reorganization of the FAA or its subdivisions" (ibid). The Administrator was then advised that "notice of proposed changes in conditions of employment relating to the above areas should be sent to the undersigned (Mr. Johannssen)" (ibid). The Administrator was advised 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" (ibid). The Administrator was advised that local Union representatives at each facility were designated to handle grievances and act as representatives at investigatory interviews and formal discussions. b. On February 8, 1982, Mr. Curran replied to the February 2 letter to the Administrator. He stated: As stated previously, it is 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. See GC 5. 12a. The FASTA/FAA agreement was entered into in 1977. It was made effective for two years, with an automatic renewal provision unless either party gave written notice to the other of a desire to amend or terminate the agreement. See R 1, page 76. Several articles in the agreement are relevant here: ARTICLE 47 - TECHNOLOGICAL CHANGES AND FACILITY CLOSING AFFECTING THE WORK FORCE Section 1. The employer agrees to notify and consult with the Union at the regional level, as far in advance as possible, prior to proposing or implementing technological changes or facility closings affecting the size or composition of the bargaining unit work force. . . . Section 3. Prior to any proposed reorganization of the work force, the Union will be consulted at the regional level. 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. See R 1, pages 58 and 68. b. It is FAA's "national policy" that it and its managers will "consult but not bargain with PASS," on matters not covered by the FASTA/FAA agreement (TR 118). c. It is also FAA's national policy that it and its managers will notify PASS's regional vice-presidents, and not Mr. Johannssen, in accord with its prior contract with FASTA. See TR 86. d. Since December 31, 1982, PASS has demanded to negotiate on some 200 proposed changes in conditions of employment. FAA consistently has offered to consult and refused to negotiate. See TR 58. 13a. In a February 2, 1982, letter to Mr. Curran, Mr. Johannssen referred to "FAA's voluntary decision to abide by the terms of the FASTA/FAA agreement" and the Union's "appreciation for (FAA's) cooperation in this regard" (GC 6). Mr. Johannssen stated further: 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. See GC 6. b. On February 8, Mr. Curran replied that its so-called "voluntary decision" was based on a "careful reading of pertinent case law" which indicated to it that "a prior negotiated agreement remains in effect until a mutual agreement to the contrary is reached," citing NRC, 6 FLRA No. 9. See GC 7. 14. On May 12, 1982, PASS and FAA began negotiations on a collective bargaining agreement. Mr. Johannssen testified that the parties were "not making any headway whatsoever" (TR 80). Mr. Johannssen was a candid, credible witness. His statement was not contradicted by any witness for Respondent. Accordingly, it is credited, as later modified by Mr. Johannssen, himself, who testified that at the last bargaining session, held in September 1982, agreement was reached on two articles, after a week's work and with the presence of a representative from the Federal Mediation and Conciliation Service. In August 1982, PASS filed some 65 negotiability appeals with the Authority. At the bargaining table, Respondent has taken the position that "just about everything was nonnegotiable" (TR 81). 15. On May 28, 1982, Mr. Johannssen wrote to the FAA Administrator to express his concern about "persistent reports of local and regional FAA management proposals to make changes in conditions of employment" and to express his view that "(n)otice and attempted bargaining at the local level is not sufficient" but, rather, should be part of "the contract talks" (GC 8, page 1). Mr. Johannssen expressly revoked any prior bargaining authority given to any PASS representative other than himself, and stated that he should be notified of all proposed changes in conditions of employment of bargaining unit members. 16a. On December 27, 1982, pursuant to the NASP of FAA, the Director of the NW Region sent to the FAA Administrator, for approval, a proposed reconfiguration of its "airway facilities sectors in the Northwest Mountain Region to reduce the number from eleven to five" (GC 11, page 2). It was stated, in the transmittal letter, that this reconfiguration would align the NW Region with "the 80's Maintenance Program" (GC 11, page 2). The letter states that sector staffing would be gradually reduced until FY 1990, at which time there would be 107 to 124 positions in various sectors. These figures include the entire sector staffing, the sector field offices, the sector field units, and the sector headquarters. See TR 164. b. On March 29, 1983, the FAA Administrator gave his approval to the proposed reconfiguration. See R 2. c. This step in the 80's Program applied to sector headquarters offices and will be referred to herein as the "sector reconfiguration." 17. On January 31, 1983, Mr. Johannssen advised Mr. Issac that he had received "information on your proposed reorganization of the workforce in the Northwest Mountain Region" and demanded bargaining (GC 10). No evidence of a response to Mr. Johannssen's letter was adduced. 18a. However, by a letter dated April 22, 1983, Mr. Issac did advise Bobby Mullins, a PASS Regional Vice-President and one of two who represent bargaining-unit employees in the NW Region, that the Administrator had approved the NW "Regional Reconfiguration Plan" (GC 11). Mr. Issac advised that some changes had been made since a copy of the initial draft reorganization proposal had been furnished, and enclosed an updated copy. Mr. Issac commented that Mr. Mullins had not provided any comments in response to the initial draft and could provide them to the approved plan, pursuant to Article 47, Section 3 of the FASTA/FAA agreement. Mr. Issac advised that implementation would begin in May, with a target completion date of June 30, 1984. b. A similar letter of the same date was sent to Lawrence Sump, the other PASS Regional Vice-President who represented employees in the NW Region. See R 3. c. On May 11, 1983, Mr. Johannssen wrote to Mr. Issac, in response to Mr. Issac's April 22 letter to Mr. Mullins. Mr. Johannssen made a demand to bargain "concerning the Northwest Mountain Region Plan to consolidate the Airway Facilities General NAS Sectors" (GC 12), either in the context of the contract negotiations, or by separate negotiations. Mr. Johannssen received no response to his letter. 19. On May 16, 1983, Mr. Issac did write to Mr. Sump and Mr. Mullins to advise them that implementation of "the consolidation of our general NAS sectors in the Northwest Mountain Region" was proceeding, that it appeared that seven bargaining unit members would actually relocate, with all relocations to be completed by June 30, 1984, and that any "comments" by them would be considered (GC 13(a) and (b)). Mr. Issac was not willing to negotiate about the changes. See TR 90-91. A copy of each letter was sent to Mr. Johannssen. 20. On May 24, 1983, Respondent's Acting Director of Labor Relations, Joseph Noonan, wrote to Mr. Johannssen in reply to a letter from him of May 16, which is not made a part of the record. It refers to Mr. Johannssen's designation of himself "as the sole PASS representative authorized to deal with FAA management on behalf of units consolidated into the national unit" (R 5). It advises that FAA will follow the procedures in the agreements which cover these units and will, "(i)n other words, notify the union representative at the local or regional level as appropriate when consultation or negotiation is required under an existing agreement" (R 5). It refers to the differences of opinion between PASS and FAA over the applicability of Article 54 of the FASTA/FAA agreement. It urges the PASS to consult, while the Authority settles the issue of whether FAA must bargain, instead of merely consulting with it. 21. On June 27, 1983, Mr. Issac sent a letter to all "Northwest Mountain Region Airway Facilities Personnel" concerning the "Sector Reconfiguration" (GC 19). It was the third one in a series designed to keep them informed of the status of the sector reconfiguration. It advised that 42 employees would be directly affected-- 17 being relocated, 13 electing to retire or resign, and 12 being accommodated in place. It advised that the largest majority of these personnel changes would occur prior to September 30, and all but a few prior to December 31. It announced that the next major milestone in the reconfiguration would occur on July 10, when Colorado Springs, Grand Junction, Casper, and Great Falls would "cease to operate as independent sectors" and would be "converted to sector field offices" and the new expanded sector boundaries for Billings, Denver and Salt Lake City would become effective (GC 19). It advised that completion of the reconfiguration would occur on January 10, 1984, at which time the new sector boundaries for Seattle and Portland would be implemented and the Boise and Spokane Sector Offices would close. 22. On July 11, 1983, counsel for PASS served upon FAA and the NW Region a copy of the unfair labor practice filed in this action. It alleges that: Since on or about April 22, 1983 and continuing to date the FAA, through its agents (sic) Frederick M. Issac, Manager, Airway Facilities Division, Northwest Mountain Region, has begun and is continuing to implement changes in working conditions of employees represented by the Professional Airways Systems Specialists ("PASS") without providing proper notice to or bargaining with PASS regarding such changes by, among other things, implementing a reorganization of the FAA's Northwest Mountain Region which has resulted or will result in changes to the reporting relationships, work assignments, work schedules and other conditions of employment of unit employees. See GC 1(a). 23a. On July 19, 1983, Mr. Issac sent a letter to Mr. Mullins and Mr. Sump, with a copy to Mr. Johannssen, in which he enclosed a copy of the "Northwest Mountain Region Airway Facilities Division Operations Staffing Plan for 1984 through 1990." See R 6 and 8. Mr. Issac sent it to them in hope that it would "reduce the personal apprehension of (our) employees by providing them with time frames for office reductions as far in advance as possible and confirm the fact that each incumbent w(ould) receive an offer of a similar position, at the same grade level, within the Northwest Mountain Region before their position is eliminated" (R 6 and 8). b. On July 28, 1983, Mr. Johannssen wrote to Mr. Issac and demanded to bargain over this plan. See R 7. Mr. Issac did not make any meaningful response to this letter. See TR 80. At the time he received the letter, Mr. Issac was not then willing to negotiate over this plan. See TR 98. c. This plan was introduced into evidence as General Counsel's Exhibit 14. It is dated July 15, 1983. A stated purpose of the plan is "To provide management with a systematic approach for transition to the 80's Maintenance Program" (GC 14, page 2). One of assumptions upon which the staffing plan is based is the sector headquarters staffing. See GC 14, page 5, para. 4. This plan will be referred to as the "sector staffing plan" portion of the 80's Maintenance Program. Unlike the sector reconfiguration (GC 11), the sector staffing plan did not have to be approved by the FAA Administrator, but only by Mr. Issac. See TR 150. While Mr. Issac's office (AF Division) implemented the sector reconfiguration plan, the sector staffing plan was implemented by the Sector Headquarters Offices. See TR 151. While the sector reconfiguration plan had no impact on service to users of FAA equipment, the sector staffing plan did, as it affected staffing in the Sector Field Offices which maintain FAA facilities. 24a. On September 13, 1983, Mr. Issac sent a letter to Lloyd G. Burrell, an FAA employee located in Olympia, Washington. The letter advised him that, due to reductions in the field maintenance staffing, Mr. Issac proposed to relocate him to the Rock Springs, Wyoming, field sector office, at the same grade (GS-11), effective November 27. Failure to accept would subject him to removal from Federal service, according to the letter. b. Mr. Burrell objected to the relocation, for health reasons and because he had not had an opportunity to discuss alternative locations. See GC 23. c. Mr. Issac has since decided to find a location other than Rock Springs for Mr. Burrell, who was still at Olympia at the time of the hearing. See TR 106. d. This relocation of Mr. Burrell is a part of the sector staffing plan. See TR 107 and GC 14, page 15. It calls for the relocation during the 4th quarter of FY-1984. As of the date of the hearing, five employees remained at Olympia, with their supervisor already transferred to Seattle. See TR 108. 25a. On September 14, 1983, Harry J. Macdonald received a letter similar to that received by Mr. Burrell. Mr. Macdonald was advised that he was to be relocated from Olympia to Moses Lake, Washington, at the same GS-11 grade, effective November 27. b. Mr. Macdonald also objected to the relocation. See GC 24. After considering his objections, Mr. Issac rejected them, on November 10, 1983, but delayed the reassignment until January 8, 1984. See GC 25. c. Mr. Macdonald's relocation is also part of the sector staffing plan. See TR 107 and GC 14, page 15. 26. On September 23, 1983, the Donald G. Coones, Manager, Seattle Airways Facilities Sector, sent a memorandum to all sector employees, to advise them of the possibility of moves and job security. It also advised the employees of relocations that had taken place in both Sector Field Offices and Sector Headquarters Offices. See GC 15. 27a. On September 28, 1983, Mr. Johannssen, having learned of the Burrell and Macdonald transfers from Mr. Burrell, called Mr. Issac to renew his demand to bargain over the relocations and changes, and to advise him that PASS would seek a temporary restraining order if he continued to move people. See TR 50-52. b. After speaking with Mr. Issac, Mr. Johannssen called FAA's Director of Labor Relations, Edward Curran, and renewed his demand to bargain on the reorganization in the NW Region. See TR 52-53. 28a. On November 23, 1983, a temporary injunction was issued by a Judge of the United States District Court for the Western District of Washington. It orders that: Federal Aviation Administration, Washington, D.C., its management officials, supervisors, representatives, agents, employees, attorneys, and all other persons acting on its behalf are enjoined and restrained from unilaterally changing the terms and conditions of employment of its employees in the Northwest Mountain Region who are represented by Professional Airways Systems Specialists, including, but not limited to, transferring, reassigning, or otherwise directing the movement of employees between different work stations without first giving notice to Professional Airways Systems Specialists concerning such changes and without bargaining with Professional Airways Systems Specialists regarding the impact and implementation of such changes. b. In an affidavit prepared in connection with the District Court proceeding, Mr. Issac represented that five personnel actions were pending in the NW Region as a result of the sector staffing plan and that two employees (N. Jaussi and S. Jones) had declined offers of reassignment after their positions in Malad City, Idaho, were eliminated, and were scheduled to retire on December 31, 1983. Evidence concerning a status quo ante remedy as applicable to the sector reconfiguration plan. 29a. Eight bargaining-unit employees were affected by the sector reconfiguration plan. Of these, four retired, one resigned, and three were transferred (from Boise to Billings, from Colorado Springs to Denver, and from Spokane to Seattle). See TR 192, 201, 194, 182 and GC 20. FAA recognized that the change was "major," that it involved a "long and difficult process," and that it would involve the sale of residences by relocated employees (GC 18, page 2). b. If status quo ante relief should be granted, Respondent would face "two options" (TR 181). One would be to reestablish six sector headquarters offices, which have been closed, and fully staff them. The other, "most likely alternative," would be to move the bargaining-unit employees back to the closed offices with, in the opinion of Mr. Issac, "nothing for them to do until we could negotiate a reassignment with the union" (TR 182). c. According to figures produced by Respondent, it would cost $1,961,985 to reestablish and fully staff the original sector headquarters offices as they were before the reconfiguration was implemented, that is, if the first option were followed. See R 9. This figure breaks down into a one-time cost of $645,000 for moving expenses of 43 persons, or $15,000 per employee, an estimated annual cost of $1,216,985 for salaries for them, and $100,000 for rental of facilities, utilities, and transfer of equipment. d. The salary cost is shown because Respondent regards the move of the relocated employees back to their old locations as a "total waste" (TR 187), moving personnel where they are not needed and away from locations, where they are needed. Of the 43 persons included in the breakdown, "30, maybe 35" are still in FAA's employ (TR 189). Respondent also counts all 43 because, in Mr. Issac's opinion, it would have "to back fill in behind those people when they were re-employed in these locations" (TR 189). e. In preparing these figures, Respondent did not check to see whether, in every case, a move would actually be necessary. See TR 190 and 198-201. f. Also, the offices involved were not fully staffed at the time of implementation of the plan. The General Counsel, in asking for status quo ante relief, asks only for a return to the status as it existed at the commencement of the reconfiguration. See TR 193. g. According to other figures estimated by Mr. Issac, it would cost in the range of $250,000 in annual salaries, plus $120,000 or $130,000 in moving expenses, to follow the "most likely" option of just moving the eight bargaining-unit employees back to the closed offices. Of the eight, five might not have to be moved. See TR 202. These figures were admittedly "guess(ed)" at by Mr. Issac (TR 183). The salary cost is included because Respondent regards such use of personnel as a "total waste" (TR 187), and because it would have to staff the desks the employees leave behind, if the bargaining process "stretches on for months" (TR 195). Respondent admits that, overall, the NW Region is overstaffed so that there are plenty of employees to fill positions. See TR 202-203. Evidence concerning a status quo ante remedy as applicable to the sector staffing plan. 30a. Insofar as bargaining-unit employees are concerned, there have been 11 reassignments and 5 retirements pursuant to the implementation of the staffing plan. See TR 183-184. The estimated one-time cost of moving these employees back to their former locations is $165,000. There would also be an estimated annual recurring cost of $431,344 for salaries. See R 11 and TR 184-185. These figures are based on full staffing at the former locations. However, over a period of time, preceding implementation of the plan, FAA had "intentionally attrited down over a period of time," so that, in "many offices," staffing was down to 3 or 4 employees, whereas they had been staffed with "9, 10, or 12 people, as full offices" (TR 191). b. The result of such a move would be the placement of personnel where they are not needed and away from offices where they are needed, and which are "likely to be understaffed" (TR 204). This could affect the timeliness of getting facilities back on the air. However, apparently none of the facilities involved are "immediate response" ones, so that a certified technician is not needed "right on duty" (TR 197). Also there is overstaffing, overall, in the NW Region. Discussion and Conclusions A. A deposed union (FASTA) cannot waive the statutory right of a successor union (PASS) to bargain on behalf of unit employees who have chosen the successor union as its exclusive representative. FAA does not deny its refusal to bargain with PASS, but asserts herein, as it has in numerous other cases involving unilateral changes in working conditions, /8/ that the waiver of the right to negotiate midterm changes contained in the FASTA/FAA contract limits FAA's obligations to PASS to consultation rights only. It is well established that a waiver of the statutory right to bargain will not be lightly inferred, and will be found only if the exclusive representative clearly and unambiguously waived its bargaining rights. Department of the Air Force, Scott Air Force Base, Illinois ("Scott AFB"), 5 FLRA No. 2, 5 FLRA 9 (1981); Department of the Air Force, U.S. Air Force Academy, 6 FLRA No. 100, 6 FLRA 548 (1981); Library of Congress, 9 FLRA No. 51, 9 FLRA 421, 423 (1982) and 9 FLRA No. 52, 9 FLRA 427, 429 (1982). In the instant case, the General Counsel does not contend that Articles 47 and 54 of the FASTA agreement do not contain a waiver. However, since the waivers were negotiated by FASTA, the previous exclusive representative, and not by PASS, the General Counsel contends that it may not be applied so as to foreclose the newly certified union from the exercise of its most fundamental statutory right. 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 PASS's repeated insistence on enforcing its statutory right to negotiate over changes in working conditions. FAA's contention that PASS is bound by FASTA's waiver is grounded upon its interpretation of U.S. Nuclear Regulatory Commission ("NRC"), 6 FLRA No. 9, 6 FLRA 18 (1981), which dealt with a contract clause granting the union the right to use agency bulletin boards. See RBr 7-10. In NRC, the Authority concluded: 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 ("Navy"), 4 FLRA No. 100 (4 FLRA 760) (1980); and Department of the Air Force, 35th Combat Support Group (TAC), George Air Force Base, California ("TAC"), 4 FLRA No. 5 (4 FLRA 22) (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. See 6 FLRA at 19-20. The General Counsel and PASS would limit the application of NRC to contract provisions which establish or define existing personnel policies, practices and terms and conditions of employment, but exclude any waiver of a statutory right or matter concerned solely with the statutory relationship between the parties. In agreement with Administrative Law Judge Garvin Lee Oliver, who has decided the same issue presented here in favor of the General Counsel and PASS, /9/ I find that this distinction makes sense. The desirability of "stability in Federal labor-management relations" spoken of in NRC (6 FLRA at 20), applied to a right gained by contract-- the use of agency bulletin boards. It takes a quantum leap to say that it is also desirable, in the name of "stability," to take away the fundamental right, mandated by the Statute, that employees be free to choose the exclusive representative who is to represent them in exercising the statutory right of unions to bargain on behalf of the unit. See Section 7101, that the "public interest" is served by "collective bargaining" on behalf of employees "through labor organizations of their own choosing in decisions that affect them. . . ." Thus, the Statute itself would seem to proscribe a "stability" whereby a repudiated union could impose its will, the waiver of the fundamental right to bargain, upon a newly chosen union. Such a reading of NRC would also be at odds with Authority precedent holding that contract clauses concerning the bargaining relationship between the parties, unlike clauses relating to working conditions of unit employees, are subordinate to the dictates of the Statute, and therefore cease to bind anyone upon the issuance of a new certification. Thus, the Authority has ruled that once it issues a certification on consolidation of units, the obligation to bargain that formerly existed between a local union and local management ceases, despite contract terms specifically providing for negotiations and despite the rule that requires continuation of the conditions of employment established in the local agreements. See American Federation of Government Employees, Local 1164, 6 FLRA No. 60, 6 FLRA 342, 343-344 (1981); and Department of Health and Human Services, Social Security Administration, 6 FLRA No. 33, 6 FLRA 202 (1981). If contract terms concerning the bargaining obligation of the parties do not survive a certification on consolidation, they certainly cannot be viewed as surviving the certification of a completely new and distinct bargaining agent. This view finds support in cases decided under Executive Order No. 11491, as amended, which controlled labor relations in the Federal sector prior to enactment of the Statute. The Federal Labor Relations Council (predecessor of the Authority) held, in Internal Revenue Service, Ogden Service Center, et al. and Internal Revenue Service, Brookhaven Service Center, 6 FLRA 311 (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. See 6 FLRC at 319 and 321-322. It was also necessary that the agreement be brought into conformance with changes in laws and regulations. See 6 FLRC at 320 and 322. And, under the National Labor Relations Act which controls labor relations 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.) In rejecting the employer's arguments, the Board 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. The record here indicates just how long PASS could be "hobbled" by FASTA's contractual waiver of bargaining rights. Bargaining on a FAA/PASS contract began in May 1982. The last negotiating session was held in September 1982. Sixty-five negotiability appeals have resulted thus far, with FAA taking the position that just about everything was nonnegotiable. Only two articles have been agreed upon, and then only after a week's work, with the assistance of a representative from the Federal Mediation and Conciliation Service. See finding 14, above. While this bargaining process thus slowly struggles towards a new collective bargaining agreement, FAA argues that it remains free to institute "major" changes (finding 29a), unfettered by any obligation to bargain with the chosen representative of its employees, PASS. It is little wonder that FAA thus clings to the terms agreed to by it with the representative repudiated by its employees. In view of FAA's 80's Maintenance Program, calling for sweeping changes, including those here made and more to come, proceeding under terms of the FASTA agreement gives FAA an advantage it is not likely to concede by any quick agreement on a collective bargaining agreement with PASS. When the Authority ruled, in NRC, that "stability" is desirable, it could hardly have foreseen that FAA, in the name of "stability," would deny its employees the right of effective representation in this manner. /10/ The intent of NRC seems to be to preserve collective bargaining, by requiring an agency to maintain existing conditions of employment during a period of negotiation, by insuring that any changes are negotiated, and not unilaterally imposed. To so apply this rationale to deprive a newly certified union of that very right creates an anomaly which should be eschewed. The only right secured, in NRC, was a contract one-- use of agency bulletin boards. Thus the holding did not grant the union a right to which it was otherwise entitled by law. In contrast, upon certification, PASS acquired the statutory right to bargain, which it clearly has not waived. Included in this right is the right to insist upon negotiations prior to the implementation of changes in conditions of employment. (Scott AFB, 5 FLRA at 10-11), which PASS has repeatedly done. FAA would force PASS to negotiate an agreement to gain the right to negotiate. This is surely not the situation Congress intended when it mandated that, upon certification, agencies must bargain collectively with the representative chosen by their employees. No case has been cited by FAA which holds that one party may waive the statutory rights of another. Indeed, to so hold would be contrary to hornbook law. See 28 Am.Jur.2d. "Estoppel and Waiver," Sec. 155 at 837-838 (1966). It would also be contrary to the Supreme Court's admonishment that an exclusive representative's attempted waiver of statutory rights will be condoned only "(p)rovided the selection of the bargaining representative remains free." Mastro Plastics Corp. v. Labor Board, 350 U.S. 270, 280 (1956, emphasis by the Court). Here, FAA would allow a repudiated union to waive a statutory right of a freely-elected successor union-- an election which may have turned upon the fact that the repudiated union waived the statutory right to bargain in return for a dues checkoff agreement that benefitted FASTA institutionally, but did nothing to enhance the working conditions of the unit employees. See footnote 10, above. Employees can hardly be said to be "free" to elect a new representative if, for an indefinite period, they remain tied to waivers granted by the representative they rejected. By refusing to negotiate with PASS over its step-by-step implementation of its 80's Maintenance Program in the NW Region, FAA committed an unfair labor practice, in violation of Sections 7116(a)(1) and (5) of the Statute. B. Similarly, a deposed union may not, by contract, fix upon its successor the union representatives authorized to deal with management. As a corollary to its waiver-of-right-to-bargain defense, Respondent also argues that it fulfilled its obligation to notify PASS of proposed changes by notifying regional representatives of PASS, as provided for in the FASTA/FAA agreement. See RBr 10-11 and 16. FAA takes this position in spite of the fact that PASS's president repeatedly informed FAA that he was the sole union representative designated to receive such notices. This Authority has repeatedly held that the parties have the statutory right to designate representatives of their own choosing. American Federation of Government Employees, AFL-CIO, 4 FLRA No. 39, 4 FLRA 272, 274 (1980); Philadelphia Naval Shipyard, 4 FLRA No. 38, 4 FLRA 255 at 269 (1980); Department of Health and Human Services, Social Security Administration, Field Assessment Office, Atlanta, Georgia, 11 FLRA No. 78, 11 FLRA 419 at 429 (1983). For reasons discussed above in connection with the bargaining waiver issue, FAA/PASS cannot be found to have waived its right to designate its own representatives. Under the circumstances, Respondent's failure and refusal to provide notice to the Union's designated representative must be found to constitute an unfair labor practice in violation of Sections 7116(a)(1) and (5) of the Statute. C. The scope of the complaint is broad enough to cover all steps in FAA's 80's Maintenance Program in the NW Region. Respondent's brief reiterates the position taken at the hearing that the complaint "is insufficient to allow consideration of the field office reorganization in the proceeding." See page 11 of its unnumbered brief. This position was rejected at the hearing (see TR 166-167) and, upon reconsideration, is rejected again. The facts show that FAA's NW Region, since on or about April 22, 1983, has decided upon and begun implementation of FAA's Airway Facilities 80's Maintenance Program, whose purpose is to reconfigure and reorganize airway facilities by consolidating existing work centers. See findings 8, 18a and d, and 23c, above. FAA has done so in two steps. The first involves reconfiguration of the sector headquarters' offices. This is the change which Respondent believes is covered by the complaint. The second, implementation of which began in July 1983, involves staffing in the sector field offices-- the changes pursuant to which Respondent argues are not covered by the complaint. The unfair labor practice charge, upon which the complaint in this proceeding is based, was served upon FAA several days prior to the July 1983 phase of the reorganization begun in the NW Region to meet FAA's 80's Maintenance Program. It alleges that since on or about April 22, 1983, the NW Region has begun, and "continuing to date," has implemented "a reorganization" which "has resulted" or "will result" in changed conditions of employment for bargaining-unit employees. See finding 22, above. The charge is thus broad enough to cover the changes in both the headquarters and field offices. The complaint names the reorganization involved in the following language: On or about April 22, 1983, Respondent decided to reorganize the National Airspace System (NAS) Airway Facilities Sectors in Respondent's Northwest Mountain Region by, inter alia, reducing the number of Sector Headquarters within said Region from eleven to five. See paragraph 7(a) of GC 1(d). Paragraph 7 of the complaint, up to the words "inter alia," clearly is broad enough to cover both the headquarters and the field office phase of the reorganization in the NW Region, which is designed to meet the overall requirements of FAA's 80's Maintenance Program. All the unit employees covered by the changes in both type offices work in "Airway Facilities Sectors" in the "Northwest Mountain Region." See finding 18d, above. The complaint's use of "inter alia," in the paragraph describing the reorganization involved in this proceeding, is not a limiting one. It serves merely to give an example, and uses the first phase of the reorganization for this purpose. To the extent that the complaint may have misled Respondent, no harm has been done, because an offer was made at the hearing to continue the hearing, if necessary, in order that Respondent not be prejudiced. No such continuance was requested. See TR 144A. And the issue of the field office staffing changes was fully litigated, at the hearing. Cf. footnote 1 to NRC, 6 FLRA No. 9, 6 FLRA 18 (1981), where the Authority so commented, in affirming the denial of a motion filed by the respondent, in that case, on the ground that it did not receive notice of all issues of law and fact. D. The status quo ante remedy is appropriate. In addition to the usual request for a cease and desist order and a posting of a notice to employees, the General Counsel requests that Respondent be ordered to: . . . rescind the changes which have resulted from its unlawful unilateral implementation of the sector reorganization and to restore the conditions existing prior thereto until such time as Respondent fulfills its statutory obligations to the Union. /10/ See GCBr 17. /11/ At the hearing, counsel for the General Counsel explained that the requested relief applied to conditions as they existed just before the changes, that is when the offices were no longer fully staffed, in anticipation of the changes to be implemented. See TR 193 and finding 30a, above. The Union concurs with the request for a status quo ante remedy, and suggests that "employees be given the option of returning or not returning to their former jobs, in recognition of the possibility that some would not want to return to their old jobs, particularly since the return might be temporary only, pending the outcome of negotiations. See CPBr 14. Respondent argues that a status quo ante remedy would have a "substantial impact on the agency's operations," "not promote the efficiency of the agency" (RBr 17), and "might well have an actual impact on the maintenance of the facilities (RBr 18). Respondent also argues that such a remedy would be inappropriate because it did inform PASS of its plans and offered it the opportunity to consult regarding them, under its "well founded" belief that it was following the law (RBr 16). As to this point, it is clear that Respondent's offers to consult, where accepted, have been turned against the Union. See FAA NW, OALJ-83-80 at page 18, where FAA argued "that it met any obligation to bargain in good faith . . . notwithstanding that it described its conduct as 'consultation'." FAA took the same position in FAA LA, LAJ-83-64. at page 8. In view of this practice, one can hardly give FAA any credit for offering to consult, an offer which carries none of the privileges of negotiation, such as taking impasses to the Federal Services Impasses Panel. See Section 7119 of the Statute. All parties agree that this Authority's decision in Federal Correctional Institution, 8 FLRA No. 111, 8 FLRA 604 (1982) sets the five guidelines to be followed in determining the appropriateness of status quo ante relief, as follows: 1. Whether and when the union was notified of the change. 2. Whether and when the union demanded negotiations. 3. The willfulness of the agency's refusal to bargain. 4. The nature and extent of the impact of the change upon employees. 5. The degree of disruption or impairment upon the efficiency and effectiveness of the agency's operations, should the status quo remedy be imposed. As to the first guideline, FAA acted in knowing defiance of PASS's request that notice be given to Mr. Johannssen, its President, and instead notified regional representatives who held no authority to bargain or receive notice of the changes proposed. Since a union acts only through authorized representatives, notice to unauthorized ones does not suffice, in the view of the Authority. See Department of Health and Human Services, Social Security Administration, Field Assessment Office, Atlanta, Georgia, 11 FLRA No. 78, 11 FLRA 419-420 and 429 (1983). As to the second guideline, despite FAA's refusal to give notice to PASS's designated representative (its President, Mr. Johannssen), Mr. Johannssen repeatedly demanded bargaining over the changes at issue-- when he first heard rumors about them; when FAA confirmed the rumors; when FAA announced steps being taken to implement the changes; and when he first learned that employees were actually being transferred pursuant to implementation of the changes. Third, the FAA's refusal to bargain over the changes in the NW Region was deliberate and in keeping with its national policy. The fact that this refusal is based on a mistaken legal position does not detract from the deliberateness of FAA's conduct. A party's mistake of law does not render deliberate conduct any less willful. In short, the FAA had a choice-- it could bargain (and could do so even if it believed it was not required to do so), or it could refuse to bargain. It willfully chose the latter course, one greatly to its advantage, and, therefore, faces the consequences of its decision. Fourth, the impact of the change was severe. A number of employees have been forced to relocate by hundreds of miles. Such relocations have involved the trauma of selling homes and uprooting families. Some employees have retired or resigned rather than face relocation. Fifth, and last, the record does not demonstrate an excessive degree of disruption for FAA's NW Region. Since November 23, 1983, FAA's plans for further implementation of its 80's Maintenance Program have been on hold, under the court injunction. Prior thereto, only 24 employees had been affected. See findings 29a and 30a. While a return of them to their former duty stations might result in an imbalance in workload, creating a temporary need at their current duty stations, FAA can draw upon its excess of personnel in the NW Region to fill this gap while the bargaining process is completed. Since none of the relocated employees were shown to be serving at facilities where an "immediate response" is required (finding 30b), the fear of FAA, that imposition of this remedy might have an impact on the maintenance of facilities, does not appear to be well founded. Furthermore, adoption of the Union's suggestion, to return relocated employees to their former duty station only at their option, may result in few exercising this option, perhaps only those who have been unable to sell their homes and move their families. After all, the return to the former duty station may only be temporary, pending the outcome of the negotiations-- hardly an enticement to most employees to take up the option of another relocation. Similarly, retired employees may not be tempted by an offer to leave retirement for what could be only a temporary period. Much of the evidence offered by Respondent, as to the disruption or impairment upon the agency's efficiency and effectiveness, consisted of cost estimations of any status quo ante remedy. Dollar cost, per se, however, does not appear to be what the Authority had in mind in articulating its fifth guidelines. And, in any event, Respondent's estimations seem grossly inflated. They are based on fully staffed offices, which was not the situation at the time the changes here involved were implemented. See finding 30a, above. They are based on a relocation cost of $15,000, per employee, without regard as to how many would actually have to be moved. Some may not have yet sold their homes or relocated their families, for example, Mr. Burrell and Mr. Macdonald. See findings 24b and 25b, above. Those affected employees who took retirement rather than face relocation would probably not have moved. Also, a major cost element in Respondent's projections is salaries for current employees; and yet their salaries will be paid whether or not a status quo ante remedy is ordered. Thus, each of the five guidelines of Federal Correctional Institution cuts in favor of imposing the status quo ante remedy sought. While there will be some costs and a measure of inefficiency and ineffectiveness resulting from its imposition, these results are moderate when compared to the adverse impact suffered by the affected employees from Respondent's refusal to bargain with their chosen representation over the impact and implementation of FAA's 80's Maintenance Program in the NW Region. Accordingly, status quo ante relief will be ordered, with acceptance of the Union's suggestion that any relocation be at the option of the employee. Optional relocation will obviate any distress to employees who may have come to prefer their new duty station, or prefer not to endure another, and perhaps temporary, relocation. E. A nationwide cease-and-desist and posting order is appropriate. 1. The General Counsel and the Charging Party join in requesting the issuance of a broad cease and desist order, prohibiting FAA from changing working conditions without first notifying PASS and providing it an opportunity to bargain concerning the proposed changes. See CPBr 23-24 and Attachment A to GCBr. As for the posting of an order to employees notifying them of the relief granted herein, the General Counsel asks only that it be posted in FAA facilities in its "Northwest Mountain Region." See attachment A to the brief of the General Counsel. The Charging Party proposes a notice, but does not make a request as to the geographic area of the posting. Based upon the record made in this proceeding a broad cease-and-desist and posting order is deemed to be appropriate. The evidence shows that the changes made, in this case, were made pursuant to a nationwide plan which is applicable to all FAA airway facilities and which will effect changes in working conditions at these facilities throughout the 1980's. See finding 8, above. The evidence shows that it is also a nationwide policy of FAA to adhere to the terms of its expired contract with FASTA, and to refuse to bargain with the successor union, PASS, over the changes mandated in this plan, or to notify the authorized representative of PASS of these changes. This policy had generated some 200 refusals to bargain, as of the time of the hearing. Charges of unfair labor practice charges are being filed regularly, if not daily, according to the parties. See footnote 3, above. Ordinarily, it may be fair and reasonable to assume that a Federal agency will follow, throughout its facilities, a principle of law established at one. This Authority has so assumed as to labor organizations. See, e.g., National Treasury Employees Union, 10 FLRA No. 91, 10 FLRA 519 at 522 (1982) where the union was testing a nationwide policy of not furnishing attorneys to nonmembers, at the U.S. Customs Service and the Nuclear Regulatory Commission. In that case the Authority ordered the posting only at the facilities of those two agencies, and not at all exclusive units represented by the union. Even in that case, however, the Authority did not limit the posting to only those facilities where the policy was actually implemented. See 7 FLRA at 522, 532 and 537. And, in dealing with an agency which had committed an unfair labor practice, the Authority modified an order recommended by an administrative law judge, and ordered a posting at all facilities of an agency where the union was the exclusive representative, even though the violative act occurred as to an employee employed at only one. See United States Forces Korea/Eighth United States Army, 11 FLRA No. 79, 11 FLRA 434, at 437, 441 and 453 (1983). The particular a circumstances justifying this broad posting order was that the employee found to have been discriminated against because of union activity was the union president and, as such, "represent(ed) employees at several of Respondent's facilities through Korea" (11 FLRA at 437). Here, we have a union representing employees at facilities throughout the United States and being held hostage to a nationwide policy of the agency that is applicable to each facility, and denies to the union its statutory right to bargain and designate its own representatives to deal with management. Here, we also have the agency's Director of Labor Relations issuing an intimidating letter to the union president when, shortly after certification of the union as the exclusive representative of a nationwide unit, the union President asserted the union's statutory right to bargain on behalf of the unit. The Director's January 21, 1982, letter to the union President stated that "FAA " . . . would not be influenced by threats and demands of labor organizations" and that "rhetoric such as that contained in your January 8 letter has previously worked to the extreme detriment of another union formerly representing FAA employees." See finding 9, above. This was clearly a reference to PATCO, whose exclusive representative status was revoked by the Authority on October 22, 1981. See Professional Air Traffic Controllers Organization, Affiliated with MEBA, AFL-CIO and Federal Aviation Administration, Department of Transportation ("PATCO"), 7 FLRA No. 10, 7 FLRA 34 (1981). In addition, PATCO and/or its striking members suffered criminal and civil contempt citations and dismissals from the Federal service. /12/ There is nothing in this record to justify such a taunt to a newly-certified union whose President was only asserting statutory rights. It seems calculated to have a coercive effect upon the union's President and restrain him in the exercise of statutory rights. /13/ It suggests a mind-set at FAA's highest levels to keep unions from becoming aggressive in seeking their rights. Accordingly, a cease-and-desist and posting order will be recommended that is applicable to all FAA airway facilities where unit employees work, so that all unit employees are protected and know that this Authority will protect them when exercising legitimate rights, and not restrict aggressive leadership attempting to secure them, as long as they and their leadership act within the framework of the Statute, for example no striking in the manner of PATCO and its members. Cf. PATCO where it was held that the posting notice "should be given the widest circulation, in order to ensure, to the maximum extent possible, that all those affected should be sufficiently informed" (7 FLRA at 62). In PATCO, the notice to employees was that the exclusive recognition status of their chosen representative had been revoked. Such a broad order is equally appropriate here, where the notice will be to employees that their chosen representative must be accorded its full statutory rights, including the right to bargain and designate officials to deal with management. Ultimate Findings and Order It has been shown, by the preponderance of the evidence, /14/ that Respondent committed and is committing the alleged unfair labor practices, and thus violated and is violating Sections 7116(a)(1) and (5) of the Statute. Accordingly, and pursuant to Section 7118 of the Statute and 5 CFR 2423.29, it is hereby ordered that the Federal Aviation Administration, Washington, D.C. shall: 1. Cease and desist from: (a) Implementing changes in the working conditions of employees exclusively represented by the Professional Airways Systems Specialists (PASS), such as Northwest Mountain Region general NAS sector reorganization, without providing prior notice to its designated representative and affording it the opportunity to negotiate regarding the impact and implementation of the changes. (b) In any like or related manner, interfering with, restraining or coercing employees in the exercise of rights assured them 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 implementation of the Northwest Mountain Region general NAS sector reorganization, including the sector reconfiguration and the sector operations staffing plan, and restore all conditions of employment affecting bargaining unit employees which were in effect immediately prior to such changes, including offering to relocated and former employees the option of returning as employees to their former duty stations. (b) Notify PASS' designated representative, Howard Johannssen, of any intention to reimplement the general NAS sector reorganization and, upon request, negotiate regarding the impact and implementation of the change prior to implementation thereof. (c) Post at its facilities copies of the Notice, attached hereto as Appendix B, on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Administrator of the Federal Aviation Administration 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 Administrator shall take reasonable steps to insure that such notices are not altered, defaced or covered by any other material. (d) Pursuant to 5 CFR 2423.30 notify the Regional Director, Region IX, 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. ISABELLE R. CAPPELLO Administrative Law Judge Dated: January 30, 1984 Washington, DC APPENDIX B NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE PURPOSES AND 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 implement changes in the working conditions of employees exclusively represented by the Professional Airways Systems Specialists (PASS), such as the Northwest Mountain Regional general NAS sector reorganization, without providing prior notice to its designated representative and affording it the opportunity to negotiate regarding the impact and implementation of the changes. WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the exercise of rights assured them by the Federal Service Labor-Management Relations Statute. WE WILL rescind the implementation of the Northwest Mountain Region general NAS sector reorganization, including the sector reconfiguration and the sector operations staffing plan, and restore all conditions of employment affecting bargaining unit employees which were in effect immediately prior to such changes, including offering to relocated and former employees the option of returning as employees to their former duty stations. WE WILL notify the PASS' designated representative, Howard Johannssen, of any intention to reimplement the general NAS sector reorganization and, upon request, negotiate regarding the impact and implementation of the change prior to implementation thereof. . . . (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 IX, whose address is: 530 Bush Street, Suite 542, San Francisco, CA 94108, and whose telephone number is: (415) 556-8105. --------------- FOOTNOTES$ --------------- /1/ The Charging Party filed an untimely opposition to the Respondent's exceptions which has not been considered by the Authority. /2/ The Authority specifically adopts the Judge's finding that the scope of the complaint was broad enough to cover all aspects of the Respondent's reorganization involved herein. /3/ The Authority also notes the Respondent's withdrawal of its exceptions to this particular finding of the Judge based on the Authority's decision in Federal Aviation Administration, Northwest Mountain Region. /4/ The record also indicates that on November 23, 1983, a temporary injunction was granted by the U.S. District Court for the Western District of Washington essentially prohibiting the FAA from further transferring or reassigning bargaining unit employees in the Northwest Mountain Region without first notifying the Charging Party and bargaining regarding the impact and implementation of such changes. As of the date of the decision herein, the temporary injunction remains in full force and effect. /5/ See, e.g., U.S. Government Printing Office, 13 FLRA 203 (1983) and Bureau of Government Financial Operations Headquarters, 11 FLRA 334 (1983). /6/ Section 7116 provides, in pertinent part, that: (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; . . . (or) . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter. . . . Section 7102(2) provides that one employees' right is the right "to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter." /7/ The following abbreviations will be used in this decision. "TR" refers to the transcript. "GC" refers to the exhibits of the General Counsel, and "R" to those of Respondent. "GCBr" refers to the brief of the General Counsel, "RBr" to that of Respondent, and "CPBr" to that of the Charging Party. Corrections to the transcript are made pursuant to 5 CFR 2423.19(r), as set forth in Appendix A, hereto. /8/ The General Counsel asks that judicial notice be taken of the Motion to Expedite Decisions dated September 27, 1983, and signed by FAA's Director of Labor Relations, the General Counsel, and PASS's counsel. All parties to the motion aver there are 25 unfair labor practice complaints against FAA now pending trial on this issue, with additional charges being filed regularly, if not daily. A copy of the motion is attached to the General Counsel's brief, as Exhibit 1. This motion is judicially noticed. /9/ See Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington and Federal Aviation Administration, Washington, D.C. ("FAA NW"), OALJ 83-80, Case Nos. 9-CA-20280 and 9-CA-20410, decided April 25, 1983, involving a unilateral change in a holiday staffing policy and practice. It should be noted that a contrary conclusion was reached by Administrative Law Judge Salvatore J. Arrigo, in Department of Transportation, Federal Aviation Administration, Los Angeles, California ("FAA LA"), OALJ-83-64, Case No. 8-CA-20260, decided March 11, 1983, involving a unilateral change in work schedules. Judge Arrigo noted that: "(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." Both decisions are pending before the Authority on exceptions. They are the decisions referred to in the Motion to Expedite Decisions alluded to in footnote 8, above. /10/ FAA contends that this Authority's decision in NRC justifies such a result because it gave up something in return for FASTA's waiver of the right to bargain. See RBr 10. This record does not indicate what FAA gave up. However, the findings in the two previous administrative law judge decisions, involving this same FASTA/FAA contract, indicate that what FAA gave up was an immediate agreement authorizing dues checkoff for FASTA. See FAA NW, page 4 of OALJ-83-80 and FAA LA, page 10 of OALJ-83-64. Assuming, then, that this is what FAA gave up, it is noted that dues withholding was not a statutory right at the time the FASTA/FAA agreement was reached, in 1977. Upon enactment of the Statute, in 1978, dues withholding became a right bestowed by statute. See 5 U.S.C. 7115. Thus, FAA gave up nothing in return for binding PASS to a waiver of bargaining rights, in 1983, that was agreed to by FASTA, in 1977. /11/ In footnote 10, the General Counsel suggests the following alternative: . . . if appropriate, the instant order may provide that all employees remain in place during the pendency of the collective bargaining negotiations but that any agreement reached be retroactively applied. Such an order must be understood to require that should new selection procedures be negotiated, employees who would not then be selected for transfer, be restored to their former positions. /12/ The background and results of this dispute between FAA and one of its union is outlined in PATCO v. Federal Labor Relations Authority, 685 F.2d 547, 551-552 (CADC, 6/11/82). /13/ Superficially, at least, such agency conduct seems to qualify as an unfair labor practice, in violation of Section 7116(a)(1) of the Statute. While the complaint alleges a violation of this section, neither it nor the charge filed by the Union indicates that this conduct was put in issue. Accordingly, the Director's letter is considered herein only in connection with the appropriate remedy to be ordered. /14/ The statutory burden of proof. See 5 U.S.C. 7118(a)(7).