19:0482(62)CA - Transportation, FAA and Professional Airways Systems Specialists -- 1985 FLRAdec CA



[ v19 p482 ]
19:0482(62)CA
The decision of the Authority follows:


 19 FLRA No. 62
 
 UNITED STATES DEPARTMENT OF TRANSPORTATION
 FEDERAL AVIATION ADMINISTRATION
 Respondent
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS
 SPECIALISTS
 Charging Party
 
                                            Case No. 6-CA-30179
 
                            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, /1/ the
 Authority finds:
 
    The amended complaint essentially alleges that the Respondent, United
 States Department of Transportation, Federal Aviation Administration
 (FAA), through its agent at the Fort Worth Air Route Traffic Control
 Center, Airway Facilities Sector (Fort Worth ARTCC, AFS), violated
 section 7116(a)(1) and (5) of the Statute /2/ by (1) unilaterally
 implementing a change in the practice of holiday staffing without
 notifying the Professional Airways Systems Specialists (PASS), at the
 national level of exclusive recognition, and providing it the
 opportunity to negotiate on the impact and implementation of the change;
  (2) unilaterally changing the basic watch schedule of unit employees
 without notifying PASS at the national level of exclusive recognition,
 and providing it the opportunity to negotiate over the change, and (3)
 by refusing to negotiate with PASS' designated representative concerning
 the alleged changes noted above.
 
    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 Fort Worth, ARTCC, AFS;  this
 nationwide unit was previously represented by the Federal Aviation
 Science and Technological Association (FASTA).  /3/ 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
 . . . . " On January 7, 1983, /4/ the Acting Manager of the Fort Worth
 ARTCC, AFS sent a letter to PASS' local representative regarding a
 proposed watch schedule for the seven-crew concept of the new ARTCC, AFS
 organization.  The letter also advised him that the proposed watch
 schedule was being forwarded to him for the "purpose of consultation in
 accordance with (the FASTA) agreement." By letter dated January 19,
 PASS' local representative, in reply to such letter, informed the
 Manager at the Fort Worth ARTCC, AFS that the January 7 letter had been
 forwarded to PASS' National Office;  that all negotiation was done at
 the national level;  and that he had no authority to bargain on this
 issue.
 
    By letter dated January 17, PASS' National President demanded
 bargaining on the proposed watch schedule and further requested the
 Respondent to refrain from implementing the change pending completion of
 negotiations.  The Respondent did not respond to this letter.  On
 January 26, the Manager of the Fort Worth ARTCC, AFS met with PASS'
 local representative regarding the proposed change.  During such
 meeting, the representative maintained PASS' position that such change
 was subject to negotiations.  The Manager maintained the Respondent's
 position that under the FASTA agreement only consultation was required.
 
    The watch schedule was posted on January 27, and on February 25 the
 Respondent's Manager proposed a revision to such schedule.  On March 14,
 PASS' local representative notified the Respondent that the proposed
 revision had been forwarded to Johannssen who, in a March 16 telephone
 conversation with the Respondent, reiterated PASS' position that the
 schedule should be negotiated.  On March 17, the revised watch schedule
 was posted as changed with an effective date of June 26.
 
    With regard to the observance of holidays by crew personnel, the
 Respondent's practice, which commenced on October 22, 1981, required
 shift personnel, when scheduled, to work on holidays.  On January 14,
 1983, the Respondent's Field Manager met with PASS' local
 representatives and proposed to change the October 22 requirement from
 two to one crew to work holidays.  On January 21, several of the
 Respondent's Managers and PASS' local representatives met again, and
 during such meeting the local representatives were, among other things,
 shown a copy of the Manager's proposed letter of January 21, in which he
 directed all supervisors to schedule only one crew per shift.  The local
 representatives did not waive PASS' right to bargain over this matter.
 Following this meeting, such letter, which was signed by the Manager,
 was distributed to all supervisors and, in part, directed them to
 effectuate the change on January 27.  Johannssen was not notified
 concerning this change.
 
    As the stipulated record indicates, the Respondent takes the position
 that the FASTA agreement contains a clear and unequivocal waiver of
 FASTA's right under the Statute to negotiate over changes in working
 conditions as herein;  that such waiver is binding on PASS;  and that it
 bargained in good faith with PASS concerning the reduction in holiday
 staffing and concerning the basic watch schedule since it engaged in
 consultation with PASS as required by the FASTA agreement.  Further, the
 record reflects that the Respondent relied on the procedures set forth
 in the FASTA agreement in providing notice to PASS concerning the
 matters herein.
 
    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 FASTA
 agreement 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 a 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 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
 changes 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 of notifying local union representatives
 regarding such changes where the record reflects that PASS expressed its
 statutory right to designate its own representative by notifying the
 Respondent that PASS' National President was the representative
 designated to receive notice and to bargain on the matters herein.
 
    Having found that the waiver of bargaining rights contained in the
 expired FASTA agreement was 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 PASS an opportunity to negotiate over the proposed change in
 the watch schedule.  See Department of Transportation, Federal Aviation
 Administration, Los Angeles, California, supra, wherein the Authority
 found that the agency had a statutory obligation to provide prior notice
 to the union therein (PASS) and afford it an opportunity to negotiate
 over the change in watch schedule.  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 PASS 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 over the proposed change in the
 watch schedule 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 change in holiday staffing, the Authority notes
 that the dispositive facts and position of the Respondents, as set forth
 above, are similar to those in Federal Aviation Administration,
 Northwest Mountain Region, supra.  Therefore, having found that the
 waiver of bargaining rights contained in the expired FASTA agreement was
 not longer binding on PASS and the Respondent, and for the reasons more
 fully stated in Federal Aviation Administration, Northwest Mountain
 Region, supra, the Authority finds that the Respondent was obligated to
 bargain concerning the procedures to be observed in implementing the
 holiday staffing change, and concerning appropriate arrangements for
 employees adversely affected thereby.  See Department of the Treasury,
 Internal Revenue Service, Jacksonville District, Jacksonville, Florida,
 15 FLRA No. 187 (1984) and Social Security Administration, 16 FLRA No.
 17 (1984).  Therefore, the Respondent's refusal to bargain with PASS in
 this regard, insisting instead that its bargaining obligation was
 limited to consultation, constitutes a violation of section 7116(a)(1)
 and (5) of the Statute.  The Authority further finds that the
 Respondent's failure to provide notice to PASS' designated
 representative concerning this change 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 requests a status quo ante remedy with respect to both changes
 while PASS requests that such remedy be limited to the change concerning
 holiday staffing.  Further, PASS requests a backpay remedy for those
 technicians who would have worked holidays under the old policy and were
 denied the opportunity to do so, and also asks that the remedy be
 nationwide in scope.
 
    With respect to the change in the Respondent's holiday staffing
 practice, the Authority finds, for the reasons expressed in Federal
 Aviation Administration, Northwest Mountain Region, supra, that a status
 quo ante order is warranted.  In this regard, the Authority notes in
 particular, after considering the specific factors enumerated in Federal
 Correctional Institution, 8 FLRA 604 (1982), that the record herein, as
 in Federal Aviation Administration, Northwest Mountain Region, supra,
 does not indicate that such a remedy would create a serious disruption
 in the Respondent's operation, but would merely require the FAA to
 return to a policy that it voluntarily followed previously.  The
 Authority further finds, for the reasons expressed in Federal Aviation
 Administration, Northwest Mountain Region, supra, that a backpay remedy
 is unwarranted.  Further, concerning the change in the basic watch
 schedule, the Authority, noting in particular that PASS specifically
 does not seek a status quo ante remedy "because the terms of the revised
 work schedule are acceptable to the Union," /5/ finds that such a remedy
 is not required herein.  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 the change
 in the unit employees' basic watch schedule.
 
    With regard to PASS' request that the remedy be nationwide in scope,
 the Authority finds that a posting of a remedial unfair labor practice
 notice in the Fort Worth Air Route Traffic Control Center, Airway
 Facilities Sector, 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 location 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, supra;  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);
  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 United States Department
 of Transportation, Federal Aviation Administration, shall:
 
    1.  Cease and desist from:
 
    (a) Changing the holiday staffing practice at the Fort Worth Air
 Route Traffic Control Center, Airway Facilities Sector, without
 providing prior notice to the representative designated by the
 Professional Airways Systems Specialists, the employees' exclusive
 representative, and affording it an opportunity to bargain concerning
 the procedures to be observed in implementing such change and
 appropriate arrangements for unit employees adversely affected thereby.
 
    (b) Changing the basic watch schedule of unit employees at the Fort
 Worth Air Route Traffic Control Center, Airway Facilities Sector,
 without providing prior notice to the representative designated by the
 Professional Airways System Specialists, the exclusive representative of
 its employees, and affording such representative the opportunity to
 negotiate over such change.
 
    (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) Rescind the change in the holiday staffing practice at the Fort
 Worth Air Route Traffic Control Center, Airway Facilities Sector, which
 was effectuated in January 1983, and restore the pre-existing practice.
 
    (b) Notify the Professional Airways Systems Specialists of any
 intended change in the holiday staffing practice at the Fort Worth Air
 Route Traffic Control Center, Airway Facilities Sector and afford it an
 opportunity to request bargaining concerning the procedures to be
 observed in implementing such change and appropriate arrangements for
 unit employees adversely affected thereby.
 
    (c) Upon request, negotiate with the Professional Airways Systems
 Specialists concerning the change in the unit employees' basic watch
 schedule.
 
    (d) Post at its Fort Worth Air Route Traffic Control Center, Airways
 Facilities Sector, 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 Fort Worth Air Route Traffic Control Center,
 Airway Facilities 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 of
 employees are customarily posted.  Reasonable steps shall be taken to
 insure 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 VI, 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 change the holiday staffing practice at the Fort Worth Air
 Route Traffic Control Center, Airway Facilities Sector, without
 providing prior notice to the representative designated by the
 Professional Airways Systems Specialists, the employees' exclusive
 representative, and affording it an opportunity to bargain concerning
 the procedures to be observed in implementing such change and
 appropriate arrangements for unit employees adversely affected thereby.
 WE WILL NOT change the basic watch schedule of unit employees at the
 Fort Worth Air Route Traffic Control Center, Airway Facilities Sector,
 without providing prior notice to the representative designated by the
 Professional Airways Systems Specialists, the exclusive representative
 of our employees, and affording such representative the opportunity to
 negotiate with respect to such change.  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 rescind the change in the holiday staffing
 practice at the Fort Worth Air Route Traffic Control Center, Airway
 Facilities Sector, which change was effectuated in January 1983, and
 restore the pre-existing practice.  WE WILL notify the Professional
 Airways Systems Specialists of any intended change in the holiday
 staffing practice at the Fort Worth Air Route Traffic Control Center,
 Airway Facilities Sector and afford it an opportunity to request
 bargaining concerning the procedures to be observed in implementing such
 change and appropriate arrangements for unit employees adversely
 affected thereby.  WE WILL, upon request, negotiate with the
 Professional Airways Systems Specialists concerning the change in the
 unit employees' basic watch schedule.
                                       (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 employe