20:0112(11)CA - FAA, Washington, DC and Professional Airways Systems Specialists -- 1985 FLRAdec CA

[ v20 p112 ]
The decision of the Authority follows:

20 FLRA No. 11



Charging Party

                                           Case No. 7-CA-40041

                           DECISION AND ORDER

   This matter is before the Authority pursuant to the Regional
Director's "Amended 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 the parties' contentions, the
Authority finds:

   The complaint alleges that the Respondent, Federal Aviation
Administration, Washington, D.C. (FAA), violated section 7116(a)(1) and
(5) of the Federal Service Labor-Management Relations Statute (the
Statute) /1/ when it failed and refused to bargain upon request
concerning procedures to be observed in and appropriate arrangements for
employees adversely affected by the removal of commercial telephone
service from the Fargo Sector Field Office.

   The Professional Airways Systems Specialists/MEBA, AFL-CIO (PASS),
exclusively represents a nationwide consolidated bargaining unit of
employees of the FAA's Airway Facilities Division, which includes 8
bargaining unit employees at the Fargo, North Dakota, Sector Field
Office, which is located in the Fargo Air Traffic Control Tower.  On
June 17, 1983, the FAA notified the President of PASS Local 409 that it
planned to terminate the commercial telephone line in the Fargo Sector
Field Office effective September 1, 1983, for monetary reasons.  The
record reflects that the Fargo Sector Field Office had a commercial line
for approximately six years prior to such notice.

   The Union requested bargaining in a letter dated June 26, 1983.  The
FAA refused to bargain in its reply dated July 5, 1983, stating, among
other things, that consultation was sufficient to satisfy the terms of
the expired contract between FAA and the former exclusive representative
of the unit employees, Federal Aviation Science and Technological
Association (FASTA).  It noted that telephone service would be
terminated effective September 1, 1983.  PASS, in a letter dated July
25, 1983, again requested bargaining, contending that "the above
proposed change may not lawfully be implemented without prior good faith
bargaining between the FAA and PASS, and PASS demands such bargaining to
the full extent permitted by law." In its response dated August 10,
1983, to the further request by PASS to bargain, the FAA reiterated its
earlier position, adding that the removal of the commercial telephone
"will have little, if any, impact on bargaining unit members."

   The commercial telephone line was not in fact removed until October
26, 1983, due to other problems.  As a result of its removal, there is
one telephone available in the Fargo Sector Field Office for the 8
bargaining unit employees, i.e., a Federal Tele-Communications System
(FTS) line.  While this line may be used for all outgoing calls,
incoming calls may only be received from non-FTS commercial lines from
8:00 a.m. to 5:00 p.m., Monday through Friday, the hours of the Fargo
FTS switchboard.  However, in the event of an emergency, employees may
be reached from commercial lines when such calls are placed to the Fargo
Air Traffic Control Tower.  The Tower has a commercial line, which is
available on a 24 hour basis, and employees can then be reached by
intercom in the Sector Office located in the same building.  The record
reflects that 4 of the 8 bargaining unit employees begin work on a
regularly scheduled basis one half hour or more prior to the opening of
the Fargo FTS switchboard.  In addition, there were 8 callbacks for
unscheduled overtime outside of the FTS switchboard hours during
calendar year 1983.

   The FAA takes the position that the cancellation of the commercial
telephone service did not constitute a material change with respect to
conditions of employment so as to have created a substantial adverse
impact or a reasonable expectation of an adverse impact.  In addition,
the FAA alleges that, assuming it would have had an obligation to
bargain, the provisions of the expired FASTA/FAA agreement remained in
effect after the certification of PASS as the exclusive representative,
and limited that obligation to consultation with PASS.

   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
expired 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 that 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 change herein.  Accordingly, and for the reasons more fully set
forth in the previously cited cases, the Authority finds that the FAA
was no longer free to insist upon the practice contained in the expired
FASTA agreement so as to preclude bargaining over the change herein if
such change otherwise gave rise to a duty to bargain.

   With respect to the latter issue, the Authority has held that "where
an agency in exercising a management right under section 7106 of the
Statute, changes conditions of employment of unit employees . . . , the
statutory duty to negotiate comes into play if the change results in an
impact upon unit employees or such impact was reasonably foreseeable."
U.S. Government Printing Office, 13 FLRA 203, 204-05(1983).  The
Authority thereafter held that "no duty to bargain arises from the
exercise of a management right that results in an impact or a reasonably
foreseeable impact on bargaining unit employees which is no more than de
minimis." Department of Health and Human Services, Social Security
Administration, Chicago Region, 15 FLRA No. 174(1984).  The Authority
has also held that in determining whether the impact or reasonably
foreseeable impact of the exercise of a management right on bargaining
unit employees is more than de minimis, the totality of the facts and
circumstances presented in each case must be carefully examined.  Thus,
in Department of Health and Human Services, Social Security
Administration, Region V, Chicago, Illinois, 19 FLRA No. 101(1985), the
Authority looked to such factors as the nature of the change (e.g., the
extent of the change in work duties, location, office space, hours, loss
of benefits or wages and the like);  the temporary, recurring or
permanent nature of the change (i.e., duration and frequency of the
change affecting unit employees);  the number of employees affected or
foreseeably affected by the change;  the size of the bargaining unit;
and the extent to which the parties may have established, through
negotiations or past practice, procedures and appropriate arrangements
concerning analogous changes in the past.  /2/ The Authority also
emphasized therein that the factors considered in the circumstances of
that case were not intended to constitute an all-inclusive list or to be
applied in a mechanistic fashion.  Moreover, the Authority noted that a
determination as to whether the exercise of a management right under
section 7106(a) of the Statute gives rise to a duty to bargain under
section 7106(b)(2) and (3) will not necessarily require in every case a
determination as to whether the exercise of the management right results
in a change in a condition of employment having an impact or a
reasonably foreseeable impact on bargaining unit employees which is more
than de minimis, especially where there is no indication that the nature
and degree of impact is at issue in the case.  However, in cases where
it must be determined whether the nature and degree of impact is more
than de minimis, factors such as those listed above will be considered.

   Turning to the instant case, and for the reasons that follow, the
Authority concludes that the impact or reasonably foreseeable impact of
the removal of commercial telephone service was no more than de minimis.
 Accordingly, it follows that the FAA was under no obligation to bargain
upon request, pursuant to section 7106(b)(2) and (3) of the Statute,
concerning the procedures it would observe in implementing the telephone
removal or concerning appropriate arrangements for adversely affected
unit employees.  In reaching this result, the Authority notes, with
respect to the nature of the change on conditions of employment of unit
employees, that the work duties performed by the 8 employees were not
affected in any way.  Moreover, the removal of commercial telephone
service did not eliminate telephone service in the Fargo Sector Field
Office.  Rather, it reduced by one the number of telephones available to
the employees for outside calls.  Additionally, it resulted in the