19:0893(106)CA - Transportation, FAA and Professional Airways Systems Specialists -- 1985 FLRAdec CA



[ v19 p893 ]
19:0893(106)CA
The decision of the Authority follows:


 19 FLRA No. 106
 
 UNITED STATES DEPARTMENT OF TRANSPORTATION
 FEDERAL AVIATION ADMINISTRATION
 Respondent
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
 Charging Party
 
                                            Case Nos. 6-CA-30230 
                                                      6-CA-30234
 
                            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 in this case, including the
 stipulation of facts, accompanying exhibits, and the parties'
 contentions, the Authority finds:
 
    The consolidated complaint alleges that the Respondent bypassed the
 exclusive representative in violation of section 7116(a)(1) and (5) of
 the Federal Service Labor-Management Relations Statute (the Statute),
 when it solicited employees' views with regard to different proposed
 changes in conditions of employment in a memo dated February 1, 1983,
 and at a meeting conducted March 31, 1983.  /1/ The consolidated
 complaint also alleges that the Respondent conducted a formal discussion
 within the meaning of section 7114(a)(2)(A) of the Statute /2/ on March
 31, 1983, at which it failed to provide the exclusive representative
 with an opportunity to be represented in violation of section 7116(a)(1)
 and (8) of the Statute.  /3/
 
    On February 1, 1983, Kenneth Glowka, the Manager of a Radar Unit at
 the San Antonio Airway Facilities Sector Office, placed a hand written
 memo on the read-and-initial bulletin board which suggested the
 possibility of doing away with the evening shift on weekends and asked
 to know how the eight Electronics Technicians under his supervision felt
 about this.  It provided a space for each employee to initial "for,"
 "against," or "don't care." Six of the eight technicians initialed the
 memo.
 
    On March 31, 1983, Glowka conducted a mandatory meeting in his office
 with the five Radar Unit Electronics Technicians under his supervision
 who were on duty, where he covered a specific agenda which involved 32
 items.  During the meeting, Glowka stated that he was thinking about
 having an early shift in the morning and an early shift in the evening,
 but only if someone was available to stay until midnight.  Glowka stated
 that he would get opinions from everybody as to their thoughts on his
 proposal.  After the meeting, he placed a memorandum discussing the 32
 items covered on the read-and-initial bulletin board for the three
 Electronics Technicians under his supervision who were not on duty that
 day.  Among the 32 items placed on the bulletin board was one soliciting
 the bargaining unit employees' opinions regarding the change in shift
 hours he discussed at the meeting.  The Union representative, Dan
 Davila, who does not work under Glowka's supervision, was informed by
 Glowka, prior to the March 31 meeting, of his intent to hold a Unit
 meeting, but Davila did not attend.
 
    Turning first to the alleged bypass allegations contained in the
 consolidated complaint, the Authority concludes that the Respondent
 violated section 7116(a)(1) and (5) by posting a February 1 memorandum
 which directly solicited the opinions of Radar Unit employees concerning
 a proposed change in conditions of employment by eliminating the evening
 shift on weekends;  and by soliciting the opinions of unit employees at
 a meeting held March 31, 1983, and in a posted follow-up memorandum
 thereafter, concerning proposed changes in shift hours contingent upon
 the availability of someone to work until midnight.  The Authority notes
 particularly, in this regard, that management was not merely attempting
 to gather information or opinions concerning its operations but directly
 sought the opinions of these bargaining unit employees as to proposed
 changes in their conditions of employment.  In the Authority's view,
 such conduct constitutes an unlawful bypass of the exclusive
 representative since it concerns immediately contemplated changes in
 conditions of employment affecting unit employees, and was an attempt by
 management to negotiate or deal directly with unit employees concerning
 such matters.  /4/
 
    However, the Authority concludes that the Respondent did not fail to
 provide the Union with an opportunity to be represented at a formal
 discussion as alleged in the consolidated complaint.  Thus, the
 stipulated record reflects that the Union representative was provided
 with an opportunity to be represented at the March 31 meeting when he
 was informed of the meeting by Glowka prior thereto and chose not to
 attend.  /5/ Therefore, without passing on whether or not the March 31
 meeting constituted a formal discussion within the meaning of section
 7114(a)(2)(A) of the Statute, the Authority concludes that the
 Respondent's conduct, in this regard, was not violative of section
 7116(a)(1) and (8).  /6/
 
                                 ORDER /7/
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority hereby orders that the
 United States Department of Transportation, Federal Aviation
 Administration, shall:
 
    1.  Cease and desist from:
 
    (a) Bypassing the Professional Airways Systems Specialists, the
 exclusive representative of its employees, and dealing directly with
 such employees by soliciting their opinions concerning personnel
 policies, practices and matters affecting their working conditions.
 
    (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) Post at all facilities of the San Antonio Airway Facilities
 Sector, wherein unit employees are located, 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 a
 responsible official of the Department of Transportation, Federal
 Aviation Administration, and shall be posted and maintained by such
 official 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.
 
    (b) 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., August 22, 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 bypass the Professional Airways Systems Specialists, the
 exclusive representative of our employees, and deal directly with unit
 employees by soliciting unit employees' opinions 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
 Statute.
                                       (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 any of 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 925, 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/ Section 7114(a)(2)(A) of the Statute provides:
 
          Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (a)(2) An exclusive representative of an appropriate unit in an
       agency shall be given the opportunity to be represented at--
 
          (A) any formal discussion between one or more representatives
       of the agency and one or more employees in the unit or their
       representatives concerning any grievance or any personnel policy
       or practices or other general condition of employment(.)
 
 
    /3/ Section 7116(a)(8) 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--
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /4/ See, e.g., United States Department of the Treasury, Bureau of
 Alcohol, Tobacco and Firearms, Washington, D.C. and its Central Region,
 16 FLRA No. 74 (1984);  Department of Transportation, Federal Aviation
 Administration, Los Angeles, California, 15 FLRA No. 21 (1984);  and
 Social Security Administration, Baltimore, Maryland, 9 FLRA 909 (1982).
 Compare Internal Revenue Service (District, Region, National Office
 Units), 19 FLRA No. 48 (1985), wherein the Authority concluded that
 management's attempt to gather information through questionnaires from
 unit employees to ensure the effectiveness and efficiency of its
 operations without attempting to deal or negotiate directly with unit
 employees concerning their conditions of employment did not constitute
 an unlawful bypass;  and U.S. Department of the Air Force, 47th Air Base
 Group (ATC), Laughlin Air Force Base, Texas, 4 FLRA 469 (1980), wherein
 the Authority adopted the Judge's conclusion that management's
 discussion with unit employees did not constitute an unlawful bypass of
 the exclusive representative because the conversations were conducted
 solely to disseminate and gather necessary personal information and did
 not concern proposed changes in conditions of employment affecting
 employees in the unit.
 
 
    /5/ The General Counsel and the Union allege that notice to the Union
 representative did not provide sufficient specificity as to the subject
 matter of the meeting.  However, the stipulated record contains no
 evidence to support such an assertion.  While the record indicates that
 the Union representative was not advised of the specific topics to be
 discussed at the meeting, there is no evidence that he sought or was
 intentionally denied such information.
 
 
    /6/ See U.S. Department of the Air Force, 47th Air Base Group (ATC),
 Laughlin Air Force Base, Texas, 4 FLRA 469 (1980).
 
 
    /7/ Counsel for PASS contended that an extraordinary remedy including
 a cease and desist order to be formally read at meetings at all
 facilities is required to insure that the Respondent will comply with
 its obligations under the Statute.  However, the Authority can