18:0048(8)CA - Transportation, FAA and Professional Airways Systems Specialists -- 1985 FLRAdec CA



[ 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 o