19:0472(61)CA - Transportation, FAA and Professional Airways Systems Specialists -- 1985 FLRAdec CA

 19 FLRA No. 61
 
 DEPARTMENT OF TRANSPORTATION
 FEDERAL AVIATION ADMINISTRATION
 Respondent
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS
 SPECIALISTS
 Charging Party
 
                                            Case Nos. 79-CA-30323 
                                                       9-CA-30548 
 
                            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 amended complaint alleges that the Department of
 Transportation, 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
 reorganizing certain of its field structures and grounds wage grade work
 force into a Field Maintenance Party (FMP), and (2) changing the job
 duties of certain unit employees, without providing notice to the
 designated representative of the Professional Airways Systems
 Specialists (PASS), and affording PASS the opportunity to negotiate over
 the impact and implementation of the changes noted above.
 
    On December 31, 1981, PASS was certified as the exclusive
 representative of a nationwide unit of the Respondent's employees,
 including the employees involved herein;  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.
 
    The stipulated record reveals that by letter dated February 2, 1982,
 Howard Johannssen, PASS' National President, wrote to the FAA
 Administrator and informed him that "unless specific notice to the
 contrary (was) given, the only representative authorized to negotiate on
 behalf of PASS" or to receive notice with respect to five items listed
 therein was himself.  Among the items listed therein were:  (1) the
 closing, consolidation or relocation of FAA facilities, and (2) any
 reorganization of the FAA or its subdivisions.  On February 8, 1982, the
 Respondent, by its agent Curran, responded to Johannssen's letter and
 informed him that it concurred with the designation to the extent that
 it was consistent with the expired FASTA agreement.
 
    Later, on May 28, 1982, Johannssen sent another 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 . . . "
 Subsequently, noting PASS' letter, the Respondent by letters dated June
 9 and 18, 1982, informed its managers, among other things, to adhere to
 the provisions of the FASTA agreement which in its view required that
 notice of local changes in working conditions be given at the local
 level, and that it was only required to consult over such changes.
 
    In November 1982, the Respondent's position classification specialist
 identified classification problems relative to certain positions in the
 Northwest Mountain Region, and thereafter conducted a classification
 review.  This review resulted in new position descriptions for General
 Maintenance Mechanic, WG-4701-10 (changed to WG-4749-9) and Engineering
 Equipment Operator, WG-5716-10/5716-11 (changed to WG-5716-11).
 
    The Northwest Mountain Region consists of FAA facilities located in
 the states of:  Washington, Oregon, Idaho, Montana, Utah and Colorado.
 By letter dated January 7, 1983, the Respondent's Airway Facilities
 Division Manager, Fredrick M. Issac, notified Larry Sump, PASS' Regional
 Vice-President for the Western Region, of FAA's decision to reorganize
 the existing field structures and grounds wage grade work force in the
 areas of Washington, Oregon and Idaho into a Field Maintenance Party
 (FMP) unit headquartered in Vancouver, Washington.  On or about January
 31, 1983, Sump, in a telephone conversation with Fred Bell, the
 Respondent's agent, demanded to negotiate on the matter.  On or about
 February 25, 1983, Bell and the Respondent's Labor Relations Manager met
 with PASS' Regional Representatives Sump and Bobby Mullins.  At this
 meeting, the parties discussed the establishment of the FMP, and the
 regional representatives were informed of the position classifications
 mentioned above;  Sump reiterated PASS' position that notice to the
 Union and negotiations concerning such changes had to be made at PASS'
 national level of exclusive recognition.  Bell stated that management
 would not negotiate but would consult in accordance with its national
 policy.
 
    Sometime before the aforementioned meeting, the Respondent had
 notified four employees assigned to the Denver FMP and sixteen employees
 assigned to its facilities in Washington, Oregon and Idaho of the
 establishment of the FMP through transfer of function.  The Respondent
 did not notify Johannssen, PASS' National President, of this change or
 of the position reclassifications.
 
    By letter dated March 21, 1983, Johannssen wrote to Isaac concerning
 the FMP unit, 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 this
 letter.  Instead, by letter dated April 8, 1983, the Manager of the
 Respondent's Maintenance Operations Branch wrote to Sump concerning
 Johannssen's letter and essentially advised him that the matter relating
 to the FMP unit had been addressed through its January 7 letter to him.
 
    On April 18, 1983, reclassification notices were issued to certain
 employees advising them that they would be reclassified to General
 Maintenance Mechanic WG-4749-9.  As a result of this action, which
 became effective on May 1, 1983, six employees were downgraded and
 placed on grade retention for two years.  Further, the new position
 description contained duties not enumerated in the previous one and
 included an increase in the employees' travel requirement.  With respect
 to the Engineering Equipment Operator position mentioned above, the new
 position description contained additional requirements.  Approximately
 four employees were reassigned and approximately seven employees were
 promoted to the new position.  These assignments were effected at
 various times during and after April 1983.
 
    On May 15, 1983, the Vancouver FMP unit was established.  As a
 result, three General Maintenance Mechanics from Eugene, Oregon, Klamath
 Falls, Oregon and Seattle, Washington were relocated to Vancouver,
 Washington, and two such employees and one Engineering Equipment
 Mechanic retired in lieu of relocation.  Further, none of the
 Engineering Equipment Mechanic or Equipment Operator positions involved
 herein were physically relocated to new duty stations;  however, three
 employees occupying such positions were organizationally reassigned to
 the Vancouver FMP and five to Salt Lake City.  Whether or not physically
 located at the Vancouver FMP, employees now receive all assignments
 from, and are directly supervised by foremen in their respective FMPs,
 as opposed to the sector office personnel who previously supervised
 them.  Assignments to the FMP occurred during or after April 1983.
 Finally, the establishment of the FMP herein has reduced the
 Respondent's need to contract for structures and grounds projects and
 has resulted in field structures and grounds work being accomplished in
 a more efficient and safe manner.
 
    The Respondent asserts that its bargaining obligation on the
 establishment of the FMP herein 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 the subject change in working conditions, and
 that such waiver is binding on PASS.  Further, with respect to the
 position reclassifications herein and the establishment of the FMP, it
 contends that, under the expired FASTA agreement, it was required to,
 and did, notify PASS at the appropriate level prior to implementing the
 subject changes;  and that PASS was given an opportunity to consult on
 the FMP prior to its establishment.
 
    In Federal Aviation Administration, Northwest Mountain Region,
 Seattle, Washington and Federal Aviation Administration, Washington,
 D.C., 14 FLRA 644 (1984), a case involving the FAA, 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 Federal Aviation Administration, Washington, D.C., 17 FLRA No.
 26 (1984), petition for review filed sub nom. Professional Airways
 Systems Specialists, MEBA, AFL-CIO v. FLRA, No. 85-1284 (D.C. Cir. May
 8, 1985).
 
    The instant case involves the same parties and the identical
 assertion by PASS of its right to negotiate rather than consult about
 the changes 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
 establishment of the FMP herein.  Also, 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 with respect to notice to PASS concerning
 the position reclassifications as well as the establishment of the FMP
 where the record reflects that PASS expressed its statutory right to
 designate its own representative by notifying the Respondent of PASS'
 representative designated to receive notice and to bargain on the
 matters herein.  In this regard, the record further reveals that the
 Respondent failed to provide prior notice to PASS' designated
 representative, but instead insisted in both instances on providing
 notice to PASS at the Regional level pursuant to the FASTA agreement.
 
    Further, with respect to the parties' obligation to bargain on the
 matters herein, the Authority has held that where an agency in
 exercising a management right under section 7106 of the Statute decides
 to change a condition of employment of unit employees, there exists a
 statutory duty to negotiate concerning the impact of such change if such
 change results in more than a de minimis impact upon unit employees or
 such impact is reasonably foreseeable.  U.S. Government Printing Office,
 13 FLRA 203 (1983) and Department of Health and Human Services, Social
 Security Administration, Chicago Region, 15 FLRA No. 174 (1984).  In the
 instant case the Respondent's decision to reorganize its field
 structures and grounds wage grade work force in a three state area into
 a FMP unit headquartered at Vancouver resulted in the relocation and
 reassignment of certain employees, while others retired rather than
 relocate;  and its decision to reclassify the positions herein resulted
 in downgrades, reassignments, and promotions, as well as new and/or
 additional job duties.  In the Authority's view, such changes resulted
 in more than a de minimis impact upon unit employees, and thus the
 Respondent was obligated to bargain over the procedures and appropriate
 arrangements for employees adversely affected thereby.  /3/ Therefore,
 the Authority finds that the Respondent's failure to notify Johannssen,
 PASS' designated representative, and afford PASS an opportunity to
 negotiate concerning procedures to be observed in implementing the
 Vancouver FMP unit and concerning appropriate arrangements for unit
 employees adversely affected thereby prior to its implementation
 constitutes a violation of section 7116(a)(1) and (5) of the Statute;
 and that its failure to notify Johannssen, and afford PASS an
 opportunity to negotiate in a similar manner concerning the position
 reclassifications herein also constitutes a violation of section
 7116(a)(1) and (5) of the Statute.
 
    To remedy the unfair labor practice conduct found herein, the General
 Counsel and PASS request a status quo ante order which the Respondent
 opposes.  In the Authority's view, such a remedy is not warranted.
 Thus, balancing the nature and circumstances of the violation against
 the degree of disruption in government operations that would be caused
 by such a remedy, and taking into consideration the various factors set
 forth in Federal Correctional Institution, 8 FLRA 604 (1982), the
 Authority concludes with respect to both of the changes herein that such
 remedy would not effectuate the purposes and policies of the Statute.
 In this regard, the Authority notes that the Respondent organized the
 existing field structures and grounds wage grade work force in the
 states of Washington, Oregon and Idaho into a FMP unit headquartered at
 Vancouver, Washington;  and that certain employees have physically
 relocated to this site while others have been reassigned
 organizationally to this unit and/or Salt Lake City.  Further, the
 Authority notes in particular that the stipulated record reveals that
 the changes herein were instituted for the purpose of enhancing the
 efficiency and effectiveness of work on facilities of the National
 Airspace System;  and that establishment of the FMP unit has enhanced
 the safety of structures and provided a safer working environment for
 employees.  Therefore, in the Authority's view, a requirement to rescind
 the organizational change herein and restore all conditions of
 employment that were in effect prior to such reorganization would result
 in substantial disruption of the Respondent's operations and likely
 interfere with the Respondent's efforts to improve the national air
 traffic control system.  Similarly, the Authority finds that an order
 requiring the Respondent to rescind the new position descriptions herein
 and restore the conditions existing prior thereto would also create a
 disruption in the Respondent's effort to improve its operations.
 
    Further, in the Authority's view, an order herein which would require
 the Respondent to give priority consideration to relocated 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 PASS to the extent consonant with law and regulation
 concerning the procedures and appropriate arrangements for unit
 employees adversely affected by the reorganization and the
 reclassification of the position descriptions herein, would best
 effectuate the purposes and policies of the Statute.  See, e.g., Federal
 Aviation Administration, Washington, D.C., 17 FLRA No. 26, supra.
 
    With regard to PASS' request that the remedy be nationwide in scope,
 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 mistaken
 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;  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 Federal Service Labor-Management Relations
 Statute, the Authority hereby orders that the Department of
 Transportation, Federal Aviation Administration shall:
 
    1.  Cease and desist from:
 
    (a) Reorganizing certain of its work force into a Field Maintenance
 Party, such as the Vancouver FMP, and issuing new position descriptions
 to unit employees employed as General Maintenance Mechanics and
 Engineering Equipment Operators, without first notifying the
 Professional Airways Systems Specialists, the exclusive representative
 of its employees, and affording such representative an opportunity to
 negotiate on the procedures to be observed in the implementation of the
 reorganization and the new position descriptions and concerning
 appropriate arrangements for employees adversely affected thereby.
 
    (b) Failing to provide prior notice of any planned reorganization and
 any change in unit employees' position descriptions 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 relocated 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 reorganization of certain of its work force into the
 Vancouver Field Maintenance Party and the new position descriptions and
 concerning appropriate arrangements for employees adversely affected
 thereby.
 
    (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 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.
 
    (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., 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 certain of our work force into a Field
 Maintenance Party, such as the Vancouver FMP, nor issue new position
 descriptions to unit employees employed as a General Maintenance
 Mechanics and Engineering Equipment Operators, 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 the implementation of the
 reorganization and the new position descriptions and concerning
 appropriate arrangements for employees adversely affected thereby.  WE
 WILL NOT fail to provide prior notice of any planned reorganization and
 any change in unit employees' position descriptions 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 relocated 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 reorganization of certain of our work force into the
 Vancouver Field Maintenance Party and the new position descriptions, and
 concerning appropriate arrangements for employees adversely affected
 thereby.
                                       (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, the
 Federal Labor Relations Authority, whose address is:  530 Bush Street,
 Room 542, San Francisco, California 94108 and whose telephone number is:
  (415) 556-8106.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1) and (5) 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 for a larger
 consolidated unit of the Respondent's employees.
 
 
    /3/ With respect to the Respondent's duty to bargain over the impact
 and implementation of classification actions, See March Air Force Base,
 Riverside, California, 13 FLRA 255 (1983).