19:1004(116)CA - Transportation, FAA and Professional Airways Systems Specialists -- 1985 FLRAdec CA



[ v19 p1004 ]
19:1004(116)CA
The decision of the Authority follows:


 19 FLRA No. 116
 
 UNITED STATES DEPARTMENT OF
 TRANSPORTATION, FEDERAL AVIATION
 ADMINISTRATION
 Respondent
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS
 SPECIALISTS
 Charging Party
 
                                            Case No. 6-CA-30370
 
                            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 complaint alleges that the United States 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/ (1) by unilaterally
 implementing a change in the performance standards and critical job
 elements of unit employees in the Airway Facilities Division, Southwest
 Region (AFD, Southwest Region) without notifying the Professional
 Airways Systems Specialists (PASS), at the national level of exclusive
 recognition, and providing it the opportunity to negotiate concerning
 the procedures to be observed in implementing such change and concerning
 appropriate arrangements for employees adversely affected thereby;  and
 (2) by refusing to bargain in good faith with PASS' designated
 representative concerning the alleged change.
 
    On December 31, 1981, PASS was certified as the exclusive
 representative for a unit of employees including those located in the
 AFD, Southwest Region involved herein.  /2/ Prior to that time, the unit
 of employees had been represented by the Federal Aviation Science and
 Technological Association (FASTA) which had negotiated an agreement with
 the FAA in 1977 for a two year period.  That agreement was automatically
 renewed by its terms following the 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
 . . . . " 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.  By letter dated May 16, 1983, /3/ Johannssen, among other
 things, again advised the Respondent's Administrator that notice
 involving changes in conditions of employment of unit employees should
 be directed to him.
 
    On May 27, the Manager of AFD, Southwest Region issued Order 3400.8,
 entitled Airway Facilities Performance Standards, which was distributed
 to the section level in the Airway Facilities Division and all Airway
 Facilities field facilities.  The appendix to this order contained
 performance standards and critical job elements for 14 different
 positions in the AFD, Southwest Region.  More specifically, it
 identified the critical job elements for measuring the performance of
 each nonmerit pay employee in the AFD, Southwest Region, with certain
 exceptions.  PASS was not included in the distribution of this Order.
 However, when the Respondent became aware of this oversight, it
 forwarded a copy to PASS through Bobby Mullins, PASS' Midwest Sector
 Vice-President, with a copy to Johannssen.  The performance standards in
 the appendix were to be implemented 90 days following the date of the
 Order, but a 30 day extension was initiated by the Respondent making the
 effective date September 21, 1983.
 
    On July 23, Mullins sent a letter to Clinton Murphy, Manager of AFD,
 Southwest Region concerning the proposed change, demanding to bargain on
 the matter and further advising the Manager that PASS' National
 President, Johannssen, was the only PASS official authorized to
 negotiate on the matter.  On August 3, Johannssen wrote to Manager
 Murphy concerning the subject change;  demanded bargaining on the matter
 to the full extent permitted by law;  and further requested Murphy to
 refrain from implementing any change until negotiations were completed.
 
    On August 31, Manager Murphy, in replying to Mullins' letter of July
 23 mentioned above, stated that the Airway Facilities Division had
 published an Order containing performance standards with mandatory
 critical job elements for Airway Facilities positions in the Southwest
 Region;  that implementation of the Order would not occur until PASS was
 afforded the opportunity to consult on its impact;  that the Order was
 being forwarded to him for such purpose;  and that his comments on this
 matter should be received by September 17, 1983.  By letter dated
 September 10, Mullins, in reply to such letter, again requested to
 bargain on the proposed change and further requested that the Manager of
 AFD, Southwest Region refrain from implementing the change pending the
 completion of negotiations.
 
    On September 27, 1983, the Respondent implemented Order 3400.8 which
 changed the bargaining unit employees' performance standards and
 critical job elements.  The Respondent asserts that its bargaining
 obligation with respect to the subject change was limited to
 consultation by virtue of a certain provision in the FASTA agreement
 which, in its view, constituted 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.
 Therefore, in view of the above, the Respondent takes the position that
 it met its obligation to bargain since it offered PASS an opportunity to
 consult over the impact and implementation of the subject change prior
 to its effectuation.
 
    In Federal Aviation Administration, Northwest Mountain Region,
 Seattle, Washington and Federal Aviation Administration, Washington,
 D.C., 14 FLRA 644 (1984), a case involving 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 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).  In the instant case,
 when PASS notified the Respondent that Johannssen was its designated
 representative to receive notice and to bargain on all proposed changes
 in unit employees' conditions of employment, and further demanded to
 bargain on the matter herein, PASS was exercising its statutory right to
 designate its own representative, and its right to terminate the
 practice established by the FASTA agreement.  See also Department of
 Transportation, Federal Aviation Administration, San Diego, California,
 15 FLRA No. 86 (1984).
 
    With respect to the Respondent's decision to change the performance
 standards and critical job elements herein, the Authority finds that the
 decision, itself, concerned an exercise of a management right under
 section 7106(a) of the Statute and therefore was outside the
 Respondent's duty to bargain;  however, even though such decision was
 outside the duty to bargain, the Authority has held that there is a duty
 to bargain concerning the procedures which management will observe in
 exercising its reserved rights and concerning appropriate arrangements
 for employees adversely affected by management's exercise thereof.
 National Treasury Employees Union and Department of the Treasury, Bureau
 of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v. FLRA, 691
 F.2d 553 (D.C. Cir. 1982).  See also Social Security Administration, 8
 FLRA 517 (1982), aff'd sub nom. American Federation of Government
 Employees, Local 1923 v. Federal Labor Relations Authority, 718 F.2d
 1088 (4th Cir. 1983), and Social Security Administration, 16 FLRA No.
 148 (1984).
 
    The record herein reveals that the Respondent refused to bargain with
 Johannssen, PASS' National President and designated representative,
 concerning the procedures to be observed in implementing the change and
 concerning appropriate arrangements for unit employees adversely
 affected by the change prior to its effectuation, but instead insisted
 on dealing with PASS at the local level and further limited the scope of
 PASS' participation to consultation on the matter.  Therefore, the
 Authority concludes that the Respondent's refusal to bargain with
 Johannssen, PASS' designated representative, and to afford PASS an
 opportunity to negotiate rather than consult as mentioned above,
 constitutes a violation of section 7116(a)(1) and (5) of the Statute.
 /4/
 
    To remedy the unfair labor practice conduct found herein, PASS has
 requested a status quo ante order.  The Authority finds that such a
 remedy is not warranted.  Thus, balancing the nature and circumstances
 of the violation against the degree of disruption in the Respondent's
 operations that would be caused by such a remedy, and taking into
 consideration the factors set forth in Federal Correctional Institution,
 8 FLRA 604 (1982), the Authority concludes that an order giving the
 employees' exclusive representative an opportunity to bargain concerning
 appropriate arrangements for unit employees adversely affected by the
 Respondent's decision to change the performance standards and critical
 job elements of unit employees, will best effectuate the purposes and
 policies of the Statute.  In this regard, the Authority notes that an
 order requiring management to rescind the revised performance standards
 and critical job elements and to reevaluate the subject employees under
 the preexisting standards would cause serious disruption in the
 Respondent's operations.  Moreover, the record does not contain any
 evidence which would support a conclusion that any unit employees
 evaluated under the revised performance standards were adversely
 affected thereby.  /5/ Therefore, in the absence of such evidence, and
 noting that the General Counsel does not seek such a remedy, the
 Authority concludes, as stated above, that a status quo ante remedy is
 unwarranted herein.
 
    With regard to PASS' request that the remedy be nationwide in scope,
 the Authority finds that a posting of the remedial unfair labor practice
 notice in the Airway Facilities Division, Southwest Region, where the
 instant violation has 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 only
 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, supra;  Federal Aviation Administration,
 Washington, D.C., 17 FLRA No. 26 (1985);  United States Department of
 Transportation, Federal Aviation Administration, 18 FLRA No. 8 (1985);
 and Department of Transportation, Federal Aviation Administration, 19
 FLRA No. 61 (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 performance standards and critical job elements of
 unit employees in the Airway Facilities Division, Southwest Region,
 without affording the Professional Airways Systems Specialists, the
 exclusive representative of its employees, the opportunity to negotiate
 concerning the procedures to be observed in implementing the change and
 appropriate arrangements for unit 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
 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, through its designated representative, concerning the
 procedures to be observed in implementing the change in the performance
 standards and critical job elements of unit employees in the Airway
 Facilities Division, Southwest Region, and appropriate arrangements for
 unit employees adversely affected thereby.
 
    (b) Post in the Airway Facilities Division, Southwest 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 Manager of the Airway Facilities Division, Southwest 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.
 
    (c) 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 23, 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 performance standards and critical job elements
 of unit employees located in the Airway Facilities Division, Southwest
 Region, without affording the Professional Airways Systems Specialists,
 the exclusive representative of our employees, the opportunity to
 negotiate concerning the procedures to be observed in implementing the
 change and appropriate arrangements for unit 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, upon request, negotiate with the Professional Airways Systems
 Specialists, through its designated representative, concerning the
 procedures to be observed in implementing the change in the performance
 standards and critical job elements of unit employees in the Airway
 Facilities Division, Southwest Region, and appropriate arrangements for
 unit 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 VI,
 Federal Labor Relations Authority, whose address is:  Federal Office
 Building, 525 Griffin Street, Suite 926, Dallas, TX 75202, and whose
 telephone number is:  (214) 767-4996.
 
 
 
 
 
 
 --------------- 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--