19:0436(59)CA - FAA, Washington, DC and Professional Airways Systems Specialists -- 1985 FLRAdec CA



[ v19 p436 ]
19:0436(59)CA
The decision of the Authority follows:


 19 FLRA No. 59
 
 FEDERAL AVIATION ADMINISTRATION
 WASHINGTON, D.C.
 Respondent
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS
 SPECIALISTS
 Charging Party
 
                                            Case No. 5-CA-30366
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in the
 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, the General Counsel, and the
 Charging Party filed exceptions, and supporting briefs, relating only to
 the Judge's recommended Order.  The Respondent filed an opposition to
 the General Counsel's exceptions, and the Charging Party filed an
 opposition to the Respondent's exceptions.
 
    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 and conclusions, and his recommended Order as modified
 herein.
 
    After finding, based on Authority precedent, that the Union did not
 waive its right to bargain over the subject matter herein, the Judge
 concluded that the Respondent violated section 7116(a)(1) and (5) of the
 Statute by its failure and refusal to negotiate with the Union
 concerning appropriate arrangements for employees adversely affected by
 the reorganization and consolidation of the Airways Facilities Sectors
 in the Great Lakes Region, effective June 30, 1983, and on the
 procedures to be observed in effectuating such reorganization.  In so
 concluding, the Judge noted particularly that as a result of the
 reorganization of the Great Lakes Region, the Respondent closed 5 of its
 13 Airways Facilities Sector Field Offices which resulted in at least 47
 unit employees being reassigned to different jobs;  7 relocating outside
 their commuting areas;  3 resigning;  4 retiring rather than relocate;
 others accepting downgrades and transfers;  and the remaining employees
 receiving reassignments within their commuting areas.  The Judge also
 noted that an unknown number of employees' work schedules or shifts were
 changed;  that some were required to assume new or additional duties
 including more travel covering larger geographic areas;  and 12 were
 required to undergo additional training and acquire new certifications
 to perform their duties.
 
    Relying on the above factors, and noting also the absence of
 exceptions to the Judge's conclusions in this regard, the Authority
 finds that the reorganization and consolidation of June 30, 1983, did,
 in fact, result in more than a de minimis impact on bargaining unit
 employees, and thus concludes, in agreement with the Judge, that the
 Respondent violated section 7116(a)(1) and (5) of the Statute by its
 failure and refusal to negotiate with the Union concerning the
 procedures to be observed in implementing the reorganization and
 consolidation of the Airways Facilities Sectors in the Great Lakes
 Region and concerning appropriate arrangements for bargaining unit
 employees adversely affected thereby.  See U.S. Government Printing
 Office, 13 FLRA 203 (1983), Department of Health and Human Services,
 Social Security Administration, Chicago Region, 15 FLRA No. 174 (1984),
 and Federal Aviation Administration, Washington, D.C., 17 FLRA No. 26
 (1985), petition for review filed sub nom. Professional Airways Systems
 Specialists, MEBA, AFL-CIO v. FLRA, No. 85-1284 (D.C. Cir. May 8, 1985).
 
    With respect to the remedial order herein, the Judge found that
 neither a status quo ante remedy nor an order requiring retroactive
 application of any agreement reached by the parties was appropriate in
 the circumstances of this case, and recommended, inter alia, a
 prospective bargaining order and a nationwide posting of the remedial
 unfair labor practice notice.  The General Counsel and the Charging
 Party excepted to the Judge's recommendation and, in their briefs, argue
 that a status quo ante remedy or at least a remedy requiring retroactive
 application of any agreement reached is appropriate.  The Respondent
 opposes such a remedy and, in its exceptions, also opposes the Judge's
 recommendation for a nationwide posting contending that the posting
 should be limited to the Great Lakes Region where the violations
 occurred.
 
    The Authority notes that the Judge, after due consideration and
 application of the factors enumerated by the Authority in Federal
 Correctional Institution, 8 FLRA 604 (1982), to the circumstances of
 this case, concluded, as mentioned above, that a status quo ante remedy
 was not warranted.  The Authority agrees, noting particularly that the
 Respondent's conduct herein, based upon a reasonable but erroneous
 interpretation of the Authority's decision in U.S. Nuclear Regulatory
 Commission, 6 FLRA 18 (1981), was not willful, and that the
 reestablishment of the five closed offices and the relocation of
 numerous unit and non-unit employees would significantly disrupt or
 impair the efficiency and the effectiveness of the Agency's operations.
 The Authority further agrees with the Judge's conclusion and rationale
 and, based on his rationale, concludes that in the circumstances of this
 case, an order requiring retroactive application of any agreement
 reached by the parties would be inappropriate.  See Internal Revenue
 Service (District, Region, National Office Units), 16 FLRA No. 124
 (1984).
 
    However, 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 within the unit in the Great Lakes Region, for which they are
 qualified, and which would require the Respondent to bargain with the
 Union to the extent consonant with law and regulation concerning
 procedures and appropriate arrangements for employees adversely affected
 by the reorganization would effectuate the purposes and policies of the
 Statute.  See Federal Aviation Administration, Washington, D.C., supra.
 
    As to the posting of the remedial unfair labor practice notice, the
 Authority finds that a posting in the Great Lakes 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 erroneous insistence on a waiver
 of the Charging Party's statutory rights, the posting of a remedial
 notice at the locations where such conduct has occurred is warranted.
 See Federal Aviation Administration, Northwest Mountain Region, Seattle,
 Washington and Federal Aviation Administration, Washington, D.C., 14
 FLRA 644 (1984);  Department of Transportation, Federal Aviation
 Administration, San Diego, California, 15 FLRA No. 86 (1984);
 Department of Transportation, Federal Aviation Administration, Los
 Angeles, California, 15 FLRA No. 21 (1984);  Federal Aviation
 Administration, Washington, D.C., supra, and United States Department of
 Transportation, Federal Aviation Administration, 18 FLRA No. 8 (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 Authority's Rules and Regulations
 and section 7118 of the Statute, it is hereby ordered that the Federal
 Aviation Administration, Washington, D.C., shall:
 
    1.  Cease and desist from:
 
    (a) Reorganizing or consolidating Airways Facilities Sectors in the
 Great Lakes Region without first affording the Professional Airways
 Systems Specialists, the employees' exclusive bargaining representative,
 an opportunity to negotiate with respect to the procedures which
 management will observe in implementing such reorganization or
 consolidation and appropriate arrangements for employees adversely
 affected thereby.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 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 within the bargaining unit in the Great
 Lakes Region, for which they are qualified.
 
    (b) Notify the Professional Airways Systems Specialists, the
 employees' exclusive bargaining representative, of any intention to
 reorganize or consolidate Airways Facilities Sectors in the Great Lakes
 Region and afford it an opportunity to negotiate with respect to the
 procedures which management will observe in implementing such
 reorganization or consolidation and appropriate arrangements for
 employees adversely affected.
 
    (c) Upon request, bargain with the Professional Airways Systems
 Specialists, the employees' exclusive bargaining representative,
 regarding the procedures which management will observe in implementing
 any future reorganization or consolidation and appropriate arrangements
 for employees adversely affected by the reorganization or consolidation
 effective June 30, 1983, in the Great Lakes Region, or any subsequent
 reorganization or consolidation.
 
    (d) Post at its facilities in the Great Lakes Region, 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 head
 of the Great Lakes Region, 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
 ensure that such Notices are not altered, defaced, or covered by any
 other material.
 
    (e) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region V, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., July 31, 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 reorganize or consolidate Airways Facilities Sectors in the
 Great Lakes Region without first affording the Professional Airways
 Systems Specialists, the employees' exclusive bargaining representative,
 an opportunity to negotiate with respect to the procedures which
 management will observe in implementing such reorganization or
 consolidation and appropriate arrangements for employees adversely
 affected thereby.  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 within the bargaining unit in the Great
 Lakes Region, for which they are qualified.  WE WILL notify the
 Professional Airways Systems Specialists, the employees' exclusive
 bargaining representative, of any intention to reorganize or consolidate
 Airways Facilities Sectors in the Great Lakes Region and afford it an
 opportunity to negotiate with respect to the procedures which management
 will observe in implementing such reorganization or consolidation and
 appropriate arrangements for employees adversely affected.  WE WILL,
 upon request, bargain with the Professional Airways Systems Specialists,
 the employees' exclusive bargaining representative, regarding the
 procedures which management will observe in implementing any future
 reorganization or consolidation and appropriate arrangements for
 employees adversely affected by the reorganization or consolidation
 effective June 30, 1983, in the Great Lakes Region, or any subsequent
 reorganization or consolidation.
                                       (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 its provisions, they
 may communicate directly with the Regional Director, Region V, Federal
 Labor Relations Authority, whose address is:  Suite 1359-A, 175 Jackson
 Boulevard, Chicago, Illinois 60604 and whose telephone number is:  (312(
 353-6306.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 5-CA-30366
 
    Joseph L. Yokley
       For the Respondent
 
    Joseph E. Kolick, Jr., Esq.
       For the Charging Party
 
    Sandra J. LeBold, Esq.
       For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq.
 
    Upon an unfair labor practice charge filed by the Professional
 Airways Systems Specialists (hereinafter referred to as PASS) against
 the Federal Aviation Administration, Washington, D.C. (herein referred
 to as FAA or Respondent), the General Counsel of the Authority, by the
 Regional Director for Region V, issued a Complaint and Notice of Hearing
 alleging Respondent violated section 7116(a)(1) and (5) of the Statute
 by refusing to bargain with PASS on matters concerning the impact and
 implementation of Respondent's reorganization of Airways Facilities
 Sectors in its Great Lakes Region.
 
    A hearing on the Complaint was conducted in Chicago, Illinois at
 which all parties were represented and afforded full opportunity to
 adduce evidence, call, examine and cross-examine witnesses and argue
 orally.  Briefs were filed by all parties and have been carefully
 considered.
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
 Background
 
    In 1977 the Federal Aviation Science and Technological
 Association/National Association of Government Employees (hereinafter
 referred to as FASTA) was certified as the exclusive collective
 bargaining representative of a nationwide unit of Respondent's employees
 including various employees in Respondent's Great Lakes Region Airways
 Facilities Sectors (AFS).  However, certain facilities in the Great
 Lakes Region, e.g. the O'Hare Airport, Chicago, Illinois AFS and the
 Minneapolis, Minnesota AFS, were excluded from the nationwide unit.
 Thereafter, FASTA and Respondent executed a collective bargaining
 agreement in 1977 which, inter alia, contained the following provisions:
 
  "ARTICLE 47-- TECHNOLOGICAL CHANGES AND FACILITY CLOSINGS
 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 2.  Employees whose positions are eliminated as a
       result of technological changes or facility closings shall be
       offered the opportunity to be reassigned to available positions,
       of equal or lower grade for which they are qualified, within their
       region.  The Employer shall not fill a bargaining unit position of
       comparable or lower grade, within that region, until the surplus
       employees are placed or given an opportunity to accept the
       position.  If no positions are available or when the Employer
       determines that the changes in the work force are of such
       magnitude that all employees affected cannot be accommodated for
       reassignment, reduction-in-force procedures will then apply.
 
          "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."
 
    On January 19, 1978, PASS was certified as the exclusive
 represenative of a unit of Respondent's employees assigned to the O'Hare
 AFS.
 
    On April 27, 1979, PASS was certified as the exclusive representative
 of a unit of Respondent's employees assigned to the Minneapolis AFS.
 
    On December 31, 1981, PASS succeeded FASTA as the exclusive
 collective bargaining representative of the nationwide unit FASTA had
 represented since 1977, supra.  Immediately upon being certified, PASS
 President Howard E. Johannssen notified FAA Administrator J. Lynn Helms
 by letter dated January 8, 1982, that:
 
          " . . . 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."
 
    On February 2, 1982, Johannssen wrote Helms informing him that he was
 the only PASS representative authorized to receive notice and conduct
 negotiations regarding, inter alia, "the closing, consolidation or
 relocation of FAA facilities." On that same date, in a letter to FAA
 Director of Labor Relations, E. V. Curran, Johannssen stated that PASS
 appreciated FAA's voluntary decision to abide by the terms of the prior
 FASTA/FAA agreement supra, which was still in effect when PASS succeeded
 FASTA as the collective bargaining representative, but cautioned that,
 
          " . . . 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 (sic) letter to
       Administrator Helms, PASS stands ready to negotiate to the full
       extent permitted by law on all appropriate subjects."
 
    Curran replied to Johannssen on February 8, 1982 and informed him
 that, with regard to abiding by the terms of the FASTA/FAA agreement:
 
          "The agency's decision was based on a careful reading of
       pertinent case law.  Our reading of the case law indicates that a
       prior negotiated agreement remains in effect until a mutual
       agreement to the contrary is reached.  Accordingly, it is our
       position that the provisions of the FASTA/FAA agreement remain in
       effect.  In this regard, we refer you to the FLRA's decision in
       U.S. Nuclear Regulatory Commission and National Treasury Employees
       Union, 6 FLRA No. 9 (1981)."
 
    Further, on that same day Curran notified all its Personnel
 Management Divisions and Labor Relations Branches that in
 labor-management relations matters not only would the terms of the
 FASTA/FAA agreement remain in effect to the maximum extent possible, but
 changes in personnel policies and practices could be made " . . . after
 consultation with the authorized PASS regional representatives."
 Notwithstanding subsequent notification to Respondent by Johannssen that
 he was to be notified of any contemplated changes in working conditions
 and his insistence that negotiations on impact, implementation and
 procedures would be required before changes could be implemented,
 Respondent, on May 23, 1983 and at all times material herein, continued
 to espouse the above policy enunciated by Curran to Johannssen and
 Respondent's labor-management relations personnel.
 
    On April 14, 1983 PASS was certified as the exclusive representative
 for a consolidate unit of Respondent's employees which included, inter
 alia, the nationwide unit previously represented by PASS, the O'Hare
 unit and the Minneapolis unit.  Although PASS and Respondent have
 engaged in negotiations for a new collective bargaining agreement at the
 National level since shortly after PASS succeeded FASTA, such efforts
 had not resulted in a contract prior to the close of hearing.  The
 Reorganization
 
    Pursuant to studies begun in 1976, Respondent concluded that a
 reorganization of its National Airspace Systems was required to keep
 pace with the growth and needs of aviation.  A reorganization plan was
 developed which, as applied to Respondent's Great Lakes Region including
 the O'Hare and Minneapolis AFS, involved reducing the thirteen Airway
 Facilities Sector Field Offices in that Region to eight Sector Field
 Offices.
 
    On February 12, 1982 and on several occasions thereafter FAA met with
 PASS Central Regional Vice-President Warren Zentz and briefed him on the
 planned reorganization of the Great Lakes Region.  /1/ Respondent
 followed what it perceived to be its obligation to "consult" under the
 expired FASTA agreement and Zentz was asked for his comments and
 suggestions at those sessions.  /2/
 
    By letters of September 9, 14 and 15, 1982 PASS President Johannssen
 demanded bargaining on the reorganization and was informed the
 reorganization was not yet final.  Johannssen again demanded bargaining
 on the reorganization in letters of January 4, 1983 and on April 14,
 1983, specifically requested bargaining on "the impact and
 implementation of (the reorganization) as well as the procedures by
 which these changes will be conducted." Respondent replied to these
 demands by letter of May 23, 1983 by again stating its position that it
 was not required to negotiate with the Union on the reorganization and
 it had met its obligation to consult by soliciting comments from
 Regional Vice-President Zentz, supra.
 
    Respondent implemented the reorganization of the Great Lakes Region
 on June 30, 1983.  As a result, by FAA's own admission, at least 47 unit
 employees were reassigned to different jobs.  /3/ Of these 47 employees,
 7 relocated outside their commuting areas, 3 resigned rather than
 relocate, 4 retired rather than relocate, 1 accepted a downgrade rather
 than relocate and another employee transferred to another position.  The
 remaining employees received reassignments within their commuting areas.
  An unknown number of employees had their work schedules or shifts
 changed and some employees were required to assume new or additional
 duties.  Some employees were required to travel more and cover larger
 geographic areas in the performance of their duties.  Twelve employees
 were required to undergo additional training and acquire new
 certifications to perform their duties.  /4/
 
                        Discussion and Conclusions
 
    The issues to be resolved herein is whether Respondent violated
 section 7116(a)(1) and (5) of the Statute when it refused to negotiate
 with the Union over the impact and implementation of its reorganization
 /5/ and, if an unfair labor practice is found to have occurred, would a
 status quo ante remedy be warranted.
 
    It is clear that Respondent refused to negotiate with the Union on
 the procedures, impact and implementation concerning the reorganization
 and considered itself only obligated to consult with the Union on the
 matter.  However, Respondent bases its contention that it was privileged
 to refuse to negotiate with the Union and pursue its course of conduct
 on Article 47 and Article 54 of the FAA/FASTA agreement, supra.
 Respondent contends that its relationship with PASS was governed by the
 terms of that agreement and relies on the Authority's decision in U.S.
 Nuclear Regulatory Commission, 6 FLRA 18 (1981).  In that case the
 Authority held, in a successor union situation as herein, that existing
 personnel policies, practices and matters affecting working conditions
 contained in a negotiated agreement continue, to the maximum extent
 possible, upon the expiration of the agreement absent an express
 agreement to the contrary or unless modified in a manner consistent with
 the Statute.
 
    However, in two recent cases involving the parties herein the
 Authority distinguished between "mandatory" and "permissive" subjects of
 bargaining with regard to the obligation of the parties to maintain
 existing conditions of employment.  Federal Aviation Administration,
 Northwest Mountain Region, Seattle, Washington, and Federal Aviation
 Administration, Washington, D.C., 14 FLRA No. 89 (1984) and Department
 of Transportation, Federal Aviation Administration, Los Angeles,
 California, 15 FLRA No. 21 (1984).  In those cases the Authority
 explained that the principle enunciated in Nuclear Regulatory
 Commission, supra, with respect to the maintenance of existing
 conditions of employment, applied only with regard to "mandatory"
 subjects of bargaining.  The Authority further held that with regard to
 "permissive" subjects of bargaining, /6/ either party may unilaterally
 elect not to be bound by the existing conditions of employment upon the
 expiration of that agreement.  In addition, the Authority specifically
 concluded that the waiver of union bargaining rights found in Article
 54, Section 2 of the FASTA agreement, supra, constituted a permissive
 subject of bargaining which PASS was entitled to terminate when it
 became the exclusive representative.
 
    Based upon the Authority's decision in FAA, Seattle and FAA Los
 Angeles, supra, I conclude that the waivers of bargaining rights set out
 in Articles 47 and 54 of the FASTA agreement, supra, terminated when
 PASS President Johannssen unambiguously conveyed to Respondent that PASS
 did not wish to be bound by these provisions.  Thus, by its actions PASS
 extinguished FASTA's contractual waivers regarding both the right to
 designate the proper person to receive notice of contemplated changes in
 working conditions /7/ and the right to negotiate, not merely consult,
 on the procedures, impact and implementation of the reorganization
 within the Great Lakes Region.  Accordingly, I conclude that Respondent
 violated section 7116(a)(1) and (5) of the Statute by its failure and
 refusal to negotiate with the Union concerning the impact and
 implementation of its reorganization and consolidation of the Airways
 Facilities Sectors in the Great Lakes Region and the procedures by which
 such reorganization would be effectuated, as alleged in the Complaint
 herein.
 
                    Findings and Conclusions on Remedy
 
    Counsel for the General Counsel and the Union urge that a status quo
 ante remedy be ordered.  Respondent opposes the imposition of such an
 order.  All parties cite Federal Correctional Institution, 8 FLRA 604
 (1982), to support their positions.  In Federal Correctional Institution
 the Authority stated:
 
          " . . . in determining whether a status quo ante remedy would
       be appropriate in any specific case involving a violation of the
       duty to bargain over impact and implementation, the Authority
       considers, among other things, (1) whether, and when, notice was
       given to the union by the agency concerning the action or change
       decided upon;  (2) whether, and when, the union requested
       bargaining on the procedures to be observed by the agency in
       implementing such action or change and/or concerning appropriate
       arrangements for employees adversely affected by such action or
       change;  (3) the willfulness of the agency's conduct in failing to
       discharge its bargaining obligations under the Statute;  (4) the
       nature and extent of the impact experienced by adversely affected
       employees;  and (5) whether, and to what degree, a status quo ante
       remedy would disrupt or impair the efficiency and effectiveness of
       the agency's operations."
 
    Viewing Respondent's actions in the light of the criteria set forth
 above I conclude a status quo ante remedy would not be warranted in this
 case.  Respondent followed its course of conduct and refused to
 negotiate on the reorganization in reliance upon the Authority's
 decision in Nuclear Regulatory Commission, supra, which, in my view,
 lent itself at that time to the interpretation Respondent gave it.
 Further, while the impact of the change on employees was substantial,
 the degree of disruption upon the agency's operations through imposition
 of the requested remedy would also be substantial.  Thus, a status quo
 ante remedy would require reestablishing five closed offices and
 relocating numerous unit and non-unit employees which, according to
 Respondent's estimate, would cost between $600,000 to $1,000,000.  Any
 subsequent reorganization which might occur after negotiations with PASS
 would add not only to the cost involved, but the disruption of
 Respondent's activities as well.  Accordingly, I will not recommend that
 a status quo ante remedy be ordered.
 
    Counsel for the General Counsel also suggests that if a status quo
 ante remedy is not given, a remedy requiring retroactive application of
 any agreement reached by the parties after fulfilling their bargaining
 obligation should be imposed.  I find imposing such a remedy at this
 time would not be appropriate.  Where, as here, the basic remedy
 requires the parties to engage in negotiations, it is entirely possible
 that an impasse may occur during bargaining and the matter will
 ultimately be sent to the Federal Service Impasses Panel (FSIP) for
 resolution.  In that event, the FSIP, when considering impasses
 proposals, would properly consider a proposal for retroactive
 application and imposing such a requirement at the present time would
 deprive the FSIP of that option and thereby impair the flexibility the
 FSIP requires to execute its Statutory function.  Accordingly, the
 request for retroactive application is denied.
 
    In view of the entire foregoing I recommend the Authority issue the
 following:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Federal Aviation Administration, Washington,
 D.C., shall:
 
    1