[ v18 p48 ]
18:0048(8)CA
The decision of the Authority follows:
18 FLRA No. 8
UNITED STATES DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, AFL-CIO
Charging Party
Case Nos. 6-CA-30375
6-CA-40002
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 contentions of the parties, the
Authority finds:
The consolidated complaint essentially alleges that the Federal
Aviation Administration (the Respondent or FAA) violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) /1/ by (1) unilaterally implementing a change in
the basic watch schedule at its Sonora Sector Field Office (Sonora SFO)
without notifying the Professional Airways Systems Specialists (PASS or
the Union), at the national level of exclusive recognition, and
providing PASS the opportunity to negotiate concerning the change; (2)
refusing to negotiate with the Union's designated representative
concerning the alleged change; and (3) bypassing the Union in dealing
directly with unit employees concerning the matter.
On December 31, 1981, PASS was certified as the exclusive
representative of a nationwide unit of the Respondent's employees,
including employees located at the Sonora SFO; this nationwide unit was
previously represented by the Federal Aviation Science and Technological
Association (FASTA). /2/ Prior to PASS' initial certification, the
Respondent and FASTA had negotiated an agreement which became effective
in 1977 for a two-year period and which was automatically renewed
thereafter following the agreement's expiration date.
On May 28, 1982, Howard Johannssen, PASS' National President, sent a
letter to the Respondent's Administrator, wherein he stated, in part,
that he had received "persistent reports of local and regional FAA
management proposals to make changes in conditions of employment within
the unit" and further stated that "any prior bargaining authority given
to any PASS representative other than (himself was) . . . revoked with
respect to the national unit," and that he should be notified of all
proposed changes in conditions of employment of bargaining unit members
. . . ."
The Sonora SFO is part of the Austin Airways Facility Sector (Austin,
AFS). Prior to August 1983, /3/ six electronic technicians (one a
relief technician) were employed at the facility; however in August,
the relief technician was transferred to Austin. On March 8, the Sonora
SFO Manager posted a memo concerning the basic watch schedule; three
proposed schedules were attached. The employees herein were directed to
review these schedules and indicate their preferences, which they did.
The Union was not notified of this memo prior to its posting. On March
22, the Respondent's Manager posted another memo regarding the watch
schedule change, and requested the employees to state whether they were
"For" or "Against" the implementation of an attached schedule by
indicating their preferences, which the employees did. The memo also
stated, inter alia, that "if a majority (could not) agree upon the
attached schedule then the previous schedule submitted for approval
would be implemented." Again, PASS was not notified in advance of the
posting of this memo. On April 15, the Sonora SFO Acting Manager issued
a memo to the employees herein which stated that the new watch schedule,
attached thereto, would be implemented on July 24, pending approval from
the Union.
On May 3, the Austin AFS Manager wrote to Bobby Mullins, the Union's
Vice-President, who was also the Union's representative for the Austin
sector, regarding the proposed watch schedule for the Sonora SFO, and
stated, among other things, that the proposed schedule was "being
forwarded to (him) for the purpose of consultation" in accordance with
the FASTA agreement. On May 25, Johannssen, to whom the letter had been
forwarded by Mullins, wrote to the Austin AFS manager, demanded
bargaining on the matter, and further requested the Respondent to
refrain from implementing the change pending completion of negotiations.
The Respondent did not reply to the Union's bargaining requests and on
July 6, the Sonora SFO Manager issued a memo to the employees advising
them that the new watch schedule would be implemented on July 24. Again
PASS was not notified of this memo prior to its issuance. The new watch
schedule was implemented on July 24.
The Respondent asserts that its bargaining obligation on the subject
change was limited to consultation by virtue of provisions in the
expired FASTA agreement which, in its view, constitute a clear and
unequivocal waiver of FASTA's right under the Statute to negotiate over
changes in working conditions as herein, and that such waiver is binding
on PASS. Further, it contends that, under the expired FASTA agreement,
it was required to and did notify the PASS representative at the
appropriate level concerning the proposed change and that the Union was
given an opportunity to consult on the change prior to its
implementation.
In Federal Aviation Administration, Northwest Mountain Region,
Seattle, Washington and Federal Aviation Administration, Washington,
D.C., 14 FLRA 644 (1984), a case involving the Federal Aviation
Administration, PASS and the same FASTA agreement as involved herein,
the Authority determined that the waiver of bargaining rights contained
in the FASTA agreement constituted a permissive subject of bargaining
which was binding during the life of the agreement, but was terminable
by either party once the agreement expired. In that case, the Authority
found that management could not insist upon the continuation of the
waiver provision contained in that expired agreement when PASS indicated
it no longer wished to be bound by such provision but instead sought to
exercise its bargaining rights. See also Department of Transportation,
Federal Aviation Administration, Los Angeles, California, 15 FLRA No. 21
(1984).
The instant case involves the same parties and the identical
assertion by PASS of its right to negotiate rather than consult about
the change herein. Accordingly, and for the reasons more fully set
forth in the previously cited cases, the Authority finds that the
Respondent was no longer free to insist upon the practice contained in
the expired FASTA agreement so as to preclude bargaining over the change
herein. Further, based on the rationale contained in Department of
Transportation, Federal Aviation Administration, San Diego, California,
15 FLRA No. 86 (1984), the Authority finds that the Respondent was no
longer free to insist upon the practice contained in the expired FASTA
agreement where the record reflects that PASS expressed its statutory
right to designate its own representative by notifying the Respondent of
the Union's representative designated to receive notice and to bargain
on the matter herein.
Having found that the waiver of bargaining rights contained in the
expired FASTA agreement were no longer binding on PASS and the
Respondent, the Authority concludes that the Respondent had a statutory
obligation to provide prior notice to PASS' designated representative
and afford the Union an opportunity to negotiate over the proposed
change in the watch schedule. /4/ See Department of Transportation,
Federal Aviation Administration, Los Angeles, California, supra. In
this regard, the record reveals that the Respondent failed to provide
prior notice to PASS' designated representative, but instead insisted on
providing notice to the Union at the local level pursuant to the FASTA
agreement; and that the Respondent refused to bargain with PASS over
the subject change, insisting instead that its bargaining obligation was
limited to consultation. Therefore, the Authority finds that the
Respondent, by the above noted actions, refused to fulfill its duty to
bargain in violation of section 7116(a)(1) and (5) of the Statute, and
that the Respondent's failure to provide notice to PASS' designated
representative also constitutes a violation of section 7116(a)(1) and
(5) of the Statute.
With respect to the bypass allegation herein, the Authority concludes
that the Respondent's conduct in directly soliciting unit employees'
input on the proposed watch schedule constitutes a violation of the
Statute. In this regard, the stipulated record indicates that the
Respondent decided to change the existing watch schedule due to the
transfer of one of its employees. It further indicates that, instead of
fulfilling its statutory duty to bargain with PASS, as found above, and
despite receiving notice from PASS' National President that he was the
Union's authorized representative for such purpose, the Respondent on
two separate occasions solicited unit employees' input concerning the
development of the watch schedule and subsequently, based upon such
input, implemented a new schedule which was effectuated without notice
to or bargaining with the Union. The Authority therefore concludes that
the Respondent's direct dealings with unit employees concerning changes
in their conditions of employment described above constitute an unlawful
bypass of PASS, the employees' exclusive representative, in violation of
section 7116(a)(1) and (5) of the Statute. See Department of
Transportation, Federal Aviation Administration, Los Angeles,
California, supra, and the cases cited therein.
To remedy the unfair labor practice conduct herein, the General
Counsel and the Union request a status quo ante order. In the
Authority's view, such a remedy is not feasible where the preexisting
watch schedule was based on a staffing level of six employees. See
Department of Transportation, Federal Aviation Administration, Los
Angeles, California, supra. Rather, the Authority finds that it will
effectuate the purposes and policies of the Statute to order that the
Respondent, upon request, must negotiate with PASS concerning changes in
the unit employees' watch schedule. With regard to the Union's request
that the remedy be nationwide in scope, the Authority finds that a
posting of a remedial unfair labor practice notice in the Austin AFS and
the Sonora SFO, where the instant violations have occurred, will also
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 PASS' statutory rights, the
posting of a remedial notice at the locations where such unlawful
conduct has occurred in warranted. See Federal Aviation Administration,
Northwest Mountain Region, supra; Federal Aviation Administration, San
Diego, California, supra; Department of Transportation, Federal
Aviation Administration, Los Angeles, California, supra; and Federal
Aviation Administration, Washington, D.C., 17 FLRA No. 26 (1985). 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 United States Department of Transportation, Federal Aviation
Administration, Washington, D.C. shall:
1. Cease and desist from:
(a) Changing the basic watch schedule of unit employees at the Sonora
Sector Field Office without providing prior notice to the representative
designated by the Professional Airways Systems Specialists, AFL-CIO, the
exclusive representative of its employees, and affording such
representative the opportunity to negotiate over such change.
(b) Bypassing the Professional Airways Systems Specialists, AFL-CIO,
the exclusive bargaining representative of its employees, by dealing
directly with unit employees concerning personnel policies, practices
and matters affecting their working conditions.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request, negotiate with the Professional Airways Systems
Specialists, AFL-CIO, concerning changes in the unit employees' basic
watch schedule.
(b) Post at its facilities at the Austin Airways Facility Sector and
the Sonora Sector Field Office 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 of the Austin Airways
Facility Sector, or a 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 insure that such
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., May 16, 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 change the basic watch schedule of unit employees at the
Sonora Sector Field Office without providing prior notice to the
representative designated by the Professional Airways Systems
Specialists, AFL-CIO, the exclusive representative of our employees, and
affording such representative the opportunity to negotiate with respect
to such change.
WE WILL NOT bypass the Professional Airways Systems Specialists,
AFL-CIO, the exclusive representative of our employees, by dealing
directly with unit employees concerning personnel policies, practices
and matters affecting their working conditions.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, negotiate with the Professional Airways
Systems Specialists, AFL-CIO, concerning changes in the unit employees'
basic watch schedule.
(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 VI, Federal Labor Relations Authority, whose address
is: Federal Office Building, 525 Griffin Street, Suite 926, Dallas, TX
75202, and whose telephone number is: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) of the Statute provides:
Sec. 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(.)
/2/ Subsequently, on April 14, 1983, PASS was certified in a larger
consolidated unit of the Respondent's employees.
/3/ All dates hereafter refer to the year 1983 unless otherwise
noted.
/4/ The stipulated record indicates in this connection that the
Respondent changed the existing watch schedule due to the transfer of
one of the six employees manning the schedule.