20:0273(33)CA - FAA, Washington, DC and Professional Airways Systems Specialists -- 1985 FLRAdec CA



[ v20 p273 ]
20:0273(33)CA
The decision of the Authority follows:


 20 FLRA No. 33
 
 FEDERAL AVIATION ADMINISTRATION 
 WASHINGTON D.C. 
 Respondent 
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS 
 SPECIALISTS, MEBA, AFL-CIO 
 Charging Party
 
                               Case Nos. 5-CA-40069;  5-CA-40095
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practices alleged in the complaint, and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  Thereafter, the Respondent filed exceptions to the
 Judge's Decision and a supporting brief, and the General Counsel and the
 Charging Party each filed an opposition to the Respondent's exceptions.
 Subsequently, the Respondent filed a motion to withdraw a portion of its
 exceptions to the Judge's Decision.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and the recommended Order, as modified
 below.
 
    The Judge found that the Respondent violated section 7116(a)(1) and
 (5) of the Statute by refusing to negotiate with the Charging Party
 (Union) on the procedures to be used in the implementation of a
 reorganization and the 1980's Maintenance Plan for the Great Lakes
 Region, and concerning appropriate arrangements for unit employees
 adversely affected thereby.  To remedy the unfair labor practice conduct
 found, the Judge recommended, inter alia, a status quo ante Order;  a
 nationwide posting of the remedial unfair labor practice notice;  and
 the signing of that notice by the Administrator of FAA.
 
    The Respondent filed exceptions limited to the Judge's recommended
 Order.  In its initial exceptions, it argued that a status quo ante
 remedy is unwarranted in the circumstances of this case, and that the
 posting of the notice herein should be limited to the Great Lakes Region
 where the violations occurred rather than nationwide as the Judge
 recommended.  In its motion to withdraw a portion of its exceptions, the
 Respondent noted its intention to "fully adhere" to that portion of the
 Judge's recommended Order requiring a return to the status quo ante in
 the reorganization of the Great Lakes Region Air Route Traffic Control
 Centers, and sought to withdraw the portion of its exceptions that takes
 issue with the Judge's recommendation for such a remedy.  Also, it
 specifically stated that the motion "does not extend to the remaining
 portion of (its) exceptions which primarily concerns the . . . Judge's
 proposed remedial action of a broad, nation-wide cease and desist order
 and posting." The Authority hereby grants the Respondent's motion as
 requested.
 
    In agreement with the Judge and based on his rationale, and noting
 particularly that the Respondent's exceptions were limited to the
 Judge's recommended remedy only, the Authority finds that the Respondent
 violated section 7116(a)(1) and (5) of the Statute by refusing to
 negotiate with the Union concerning procedures and appropriate
 arrangements for unit employees adversely affected by the implementation
 of the reorganization and the 1980's Maintenance Plan for the Great
 Lakes Region.  With respect to the recommended Order, the Authority,
 noting the Respondent's withdrawal of its exceptions to the recommended
 status quo ante remedy, its stated intention to fully adhere to such
 remedy, and the absence of either an assertion or record evidence that
 such a remedy would seriously disrupt the Respondent's operations,
 adopts the Judge's findings and recommended Order requiring a return to
 the status quo ante with regard to the reorganization and the 1980's
 Maintenance Plan herein.  /1/
 
    As to the posting of a remedial unfair labor practice notice, the
 Authority finds that a posting in the Great Lakes 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 unlawful insistence on a waiver of
 the Union's statutory rights, it is concluded that 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, Seattle, Washington and Federal Aviation
 Administration, Washington, D.C., 14 FLRA 644(1984);  Department of
 Transportation, Federal Aviation Administration, San Diego, California,
 15 FLRA No. 86(1984);  Department of Transportation, Federal Aviation
 Administration, Los Angeles, California, 15 FLRA No. 21(1984);  Federal
 Aviation Administration, Washington, D.C., 17 FLRA No. 26(1985);  United
 States Department of Transportation, Federal Aviation Administration, 18
 FLRA No. 8(1985);  Federal Aviation Administration, Washington, D.C., 19
 FLRA No. 59(1985);  Department of Transportation, Federal Aviation
 Administration, 19 FLRA No. 61(1985);  and United States Department of
 Transportation, Federal Aviation Administration, 19 FLRA No. 62(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, supra.  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 Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Federal Aviation Administration, Washington,
 D.C., shall:
 
    1.  Cease and desist from:
 
    (a) Reorganizing Air Route Traffic Control Centers in the Great Lakes
 Region without first affording the Professional Airways Systems
 Specialists, the employees' exclusive bargaining representative, an
 opportunity to negotiate with respect to the procedures which management
 will observe in implementing such reorganization and appropriate
 arrangements for employees adversely affected thereby.
 
    (b) Implementing the 1980's Maintenance Plan for Airway Facilities in
 the Great Lakes Region without first affording the Professional Airways
 Systems Specialists, the employees' exclusive bargaining representative,
 an opportunity to negotiate with respect to the procedures which
 management will observe in implementing such plan and appropriate
 arrangements for employees adversely affected thereby.
 
    (c) 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) Return to the practices which existed prior to implementing the
 reorganization of the Great Lakes Region Air Route Traffic Control
 Centers on or about October 1, 1983.
 
    (b) Return to the practices which existed prior to its implementing
 the 1980's Maintenance Plan for the Great Lakes Region Airway Facilities
 on or about November 23, 1983.
 
    (c) Notify the Professional Airways Systems Specialists, the
 employees' exclusive bargaining representative, of any intention to
 reorganize Air Route Traffic Control Centers in the Great Lakes Region
 or to implement a maintenance plan or program in Airways Facilities and
 afford it an opportunity to request negotiations with respect to the
 procedures which management will observe in implementing such
 reorganization or plan and appropriate arrangements for employees
 adversely affected.
 
    (d) Upon request, bargain with the Professional Airways Systems
 Specialists, the employees' exclusive bargaining representative,
 regarding the procedures which management will observe in implementing
 any future reorganization of the Air Route Traffic Control Centers in
 the Great Lakes Region or maintenance plan or program in Airways
 Facilities and appropriate arrangements for employees adversely affected
 by the reorganization or plan.
 
    (e) Post at its facilities and Air Route Traffic Control Centers in
 the Great Lakes 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 head of the Great Lakes 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 ensure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (f) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region V, 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., September 24, 1985
 
                                       (s) HENRY B. FRAZIER III
                                       (s) WILLIAM J. MCGINNIS JR.
                                       /s/ WILLIAM J. MCGINNIS JR
                                       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 Air Route Traffic Control Centers in the Great
 Lakes Region without first affording the Professional Airways Systems
 Specialists, the employees' exclusive bargaining representative, an
 opportunity to negotiate with respect to the procedures which management
 will observe in implementing such reorganization and appropriate
 arrangements for employees adversely affected thereby.
 
    WE WILL NOT implement the 1980's Maintenance Plan for Airway
 Facilities in the Great Lakes Region without first affording the
 Professional Airways Systems Specialists, the employees' exclusive
 bargaining representative, an opportunity to negotiate with respect to
 the procedures which management will observe in implementing such plan
 and appropriate arrangements for 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
 Statute.
 
    WE WILL return to the practices which existed prior to our
 implementing the reorganization of the Great Lakes Region Air Route
 Traffic Control Centers on or about October 1, 1983.
 
    WE WILL return to the practices which existed prior to our
 implementing the 1980's Maintenance Plan for the Great Lakes Region
 Airway Facilities on or about November 23, 1983.
 
    WE WILL notify the Professional Airways Systems Specialists, the
 employees' exclusive bargaining representative, of any intention to
 reorganize Air Route Traffic Control Centers in the Great Lakes Region
 or to implement a maintenance plan or program in Airways Facilities and
 afford it an opportunity to request negotiations with respect to the
 procedures which management will observe in implementing such
 reorganization or plan and appropriate arrangements for employees
 adversely affected.
 
    WE WILL, upon request, bargain with the Professional Airways Systems
 Specialists, the employees' exclusive bargaining representative,
 regarding the procedures which management will observe in implementing
 any future reorganization of the Air Route Traffic Control Centers in
 the Great Lakes Region or maintenance plan or program in Airways
 Facilities and appropriate arrangements for employees adversely affected
 by the reorganization or plan.
                                       (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 employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region V, Federal Labor Relations Authority, whose address is:
  Suite 1359-A, 175 Jackson Boulevard, Chicago, Illinois 60604 and whose
 telephone number is:  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case Nos. 5-CA-40069, 5-CA-40095
 
    William A. Feldman and
    Joseph L. Yokley
    For the Respondent
 
    Joseph E. Kolick, Jr., Esq. and
    Laura A. Layman, Esq. on the brief
    For the Charging Party
 
    Sandra J. LeBold, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    These cases arose under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 7101, et seq.
 
    Upon unfair labor practice charges filed by Professional Airways
 Systems Specialists, MEBA, AFL-CIO (herein referred to as PASS or the
 Union) against the Federal Aviation Administration, Washington, D.C.
 (herein referred to as FAA or Respondent), the General Counsel of the
 Authority, by the Regional Director for Region V, issued a Complaint and
 Notice of Hearing in each case and thereafter consolidated the cases for
 hearing.  The Complaint in Case No. 5-CA-40069 alleges Respondent
 violated the Statute when it failed and refused to bargain with PASS " .
 . . concerning the impact and implementation of the reorganization of
 the Air Route Traffic Control Centers in the Great Lakes Region, as well
 as the procedures by which such changes would be effectuated." The
 Complaint in Case No. 5-CA-40095 alleges Respondent violated the Statute
 by failing and refusing to bargain with PASS " . . . concerning the
 impact and implementation of (Respondent's) Great Lakes Region's
 Maintenance Program Plan for the 80's, as well as the procedures by
 which such changes would be effectuated." /2/
 
    A hearing on the Complaints was conducted in Chicago, Illinois at
 which all parties were represented and afforded full opportunity to
 adduce evidence, call, examine and cross-examine witnesses and argue
 orally.  Briefs were filed by all parties and have been carefully
 considered.
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor and from my evaluation of the evidence, I
 make the following findings of fact, conclusions of law and
 recommendations:
 
    A. Background
 
    (1) Respondent's Great Lakes Region is comprised of various
 facilities in Minnesota, Wisconsin, Illinois, Indiana, Michigan, Ohio
 and North and South Dakota.
 
    (2) On January 19, 1978 PASS was certified as the exclusive
 representative of a unit of Respondent's employees assigned to the
 Airway Facilities Sector, O'Hare Airport, Chicago, Illinois.
 
    (3) On April 27, 1979, PASS was certified as the exclusive
 representative of a unit of Respondent's employees assigned to the
 Airway Facilities Sector, Minneapolis, Minnesota.  Prior thereto, these
 employees were represented by the American Federation of Government
 Employees.
 
    (4) On June 10, 1980, PASS was certified as the exclusive
 representative of a unit of Respondent's employees assigned to the Air
 Route Traffic Control Center, Farmington, Minnesota.  Prior thereto,
 these employees were represented by the American Federation of
 Government Employees.
 
    (5) On December 31, 1981, PASS was certified as the exclusive
 representative of a nationwide unit of Respondent's employees,
 including, but not limited to, Respondent's employees in the Great Lakes
 Region, but excluding employees at O'Hare Airport, Minneapolis,
 Minnesota, and Farmington, Minnesota (as described in paragraphs (2),
 (3) and (4) above), and also excluding professional employees, employees
 engaged in Federal personnel work in other than a purely clerical
 capacity, management officials, guards and supervisors as defined in
 Executive Order 11491.  Prior to the Union's certification on December
 31, 1981, these employees were represented by the Federal Aviation
 Science and Technological Association/National Association of Government
 Employees (FASTA).
 
    (6) While FASTA was the employees' representative, it negotiated a
 collective bargaining agreement with Respondent.  Article 47 of that
 agreement provided, inter alia:
 
  "ARTICLE 47-- TECHNOLOGICAL CHANGES AND FACILITY CLOSINGS
 AFFECTING THE
 WORK FORCE
 
          "Section 1.  The Employer agrees to notify and consult with the
       Union at the regional level, as far in advance as possible, prior
       to proposing or implementing technological changes or facility
       closings affecting the size or composition of the bargaining unit
       work force.
 
                                  * * * *
 
          "Section 3.  Prior to any proposed reorganization of the work
       force, the Union will be consulted at the regional level."
 
 Article 54 provided:
 
                  "ARTICLE 54-- CHANGES IN THE AGREEMENT
 
          "Section 1.  The Parties agree to negotiate prior to
       implementing changes in personnel policies, practices and matters
       affecting working conditions which are within the scope of the
       Employers' authority when those changes are in conflict with this
       agreement.
 
          "Section 2.  The Parties agree to consult prior to implementing
       changes in personnel policies, practices and matters affecting
       working conditions that are within the scope of the Employer's
       authority and that are not specifically covered by this
       agreement."
 
    (7) On April 14, 1983, PASS was certified as the exclusive
 representative of a consolidated unit of Respondent's employees.  This
 consolidation included, inter alia, the O'Hare unit, the Minneapolis
 unit, the Farmington unit and the nationwide unit that was certified on
 December 31, 1981.
 
    (8)(a) At all times since February 1982, PASS has taken the position
 with FAA that PASS was not bound by any waivers of Statutory rights
 contained in the FAA/FASTA collective bargaining agreement, supra, and
 insisted upon its right to negotiate on working conditions to the extent
 permitted by law.
 
    (b) At all times since February 1982, FAA has taken the position with
 PASS that the provisions of the FAA/FASTA agreement remain in effect
 until an agreement with PASS to the contrary is reached.
 
    (c) FAA and PASS had not reached agreement on the terms of a
 collective bargaining agreement covering unit employees concerned herein
 prior to the closing of this hearing.
 
    (9) On May 16, 1983, PASS President Howard Johannssen notified
 Respondent that he was the only PASS representative authorized to engage
 in collective bargaining on behalf of the consolidated unit (paragraph
 (7) above) and notice of any proposed changes in personnel policies,
 practices or working conditions of unit employees, "including changes
 that FAA contends are reserved to management", should be directed to
 him.  /3/
 
    B.  Reorganization of the Air Route Traffic Control Centers in the
 Great Lakes Region, Case No. 5-CA-40069
 
    (1) On August 2, 1983, Respondent informed Warren Zentz, Union
 Regional Vice-President, of its plans to reorganize the Air Route
 Traffic Control Centers (ARTCCs) of the Great Lakes Region (herein the
 Reorganization).  The Reorganization primarily took the form of
 replacing the existing five crew watch schedules with seven crew watch
 schedules.  The Reorganization also involves the creation of a new group
 called an Interfacility Unit comprised of Interfacility Electronic
 Technicians to supplement scheduled watches.
 
    (2) On August 8, 1983, Respondent sent Zentz a letter soliciting the
 Union's comments regarding the impact and implementation of the ARTCC
 Reorganization.
 
    (3) By letters dated August 3, 1983, August 18, 1983, and August 25,
 1983, the Union requested that Respondent bargain with it concerning the
 impact and implementation of the Reorganization as well as the
 procedures by which such changes would be effectuated.
 
    (4) By letter dated September 28, 1983, Respondent informed the Union
 that Respondent would not negotiate with the Union concerning the
 Reorganization.
 
    (5) On or about October 1, 1983, Respondent implemented the
 Reorganization of the Air Route Traffic Control Centers in the Great
 Lakes Region.
 
    (6) Since October 1, 1983, seven crew watch schedules have replaced
 five crew watch schedules at Respondent's Air Route Traffic Control
 Centers at Chicago (Aurora), Illinois and Indianapolis, Indiana.
 Eventually, the Farmington, Minnesota and Oberlin, Ohio Centers will
 also change from the five crew watch schedule to the seven crew
 schedule.
 
    (7)(a) Documents prepared by Respondent (attached to the August 8,
 1983, letter to Union Regional Vice-President Zentz noted in paragraph
 (2) above) list the following "advantages" to be derived from the
 reorganization:
 
          "1.  "Unit" components provide more and better lines of
       responsibility and accountability.
 
          "2.  "Crew" components will for the most part direct their
       efforts toward the so-called "fire fighting" aspects of systems
       maintenance.  This means more instances of individual exposure to
       system problems.
 
          "3.  A "unit" assignment allows the individual a maximum
       exposure to all aspects of systems maintenance processes.  Live
       troubleshooting, P.M.'s, in-depth troubleshooting, off-line and
       system improvement/enhancement projects.
 
          "4.  Fewer midnight shifts.
 
          "5.  Saves premium pay costs for FAA.
 
          "6.  Fewer people needed on the rotating shift component
       releasing some positions to really meaningful support functions
       on-site."
 
    (b) While apparently no permanent assignments have yet been made to
 the Interfacility Unit, Respondent contemplates collective bargaining
 unit employees transferring from their present jobs to this group in the
 future.
 
    (8) The seven crew watch differs from a five crew watch primarily in
 that the seven crew watch would not contain more than one technician in
 each specialty and the seven crew watch would contain less employees
 than a five crew watch.  Thus, under the seven crew fewer employees
 handle the same workload as the five crew watch.  Further, as testimony
 concerning the watch change at the Aurora ARTCC reveals, with the seven
 crew watch fewer employees now work on Saturdays, Sundays and holidays
 thereby decreasing premium pay received by bargaining unit employees.
 In addition, some employees experienced a change in work hours when the
 seven crew system was implemented.  Testimony reveals reduced premium
 pay and a change of work schedules for seven crew watches at the
 Farmington, Minnesota ARTCC is anticipated, according to a briefing the
 Local Union President received from Respondent's representatives at the
 Farmington facility.  Further, Fred W. Bell, Respondent's Maintenance
 Operations Branch Manager for the Airway Facilities Division,
 acknowledged that an objective of the seven crew concept is to reduce
 midnight and other shift work for which premium pay is required.
 
    (9) Although providing PASS with an opportunity to consult with
 regard to the implementation of the Reorganization, at no time did
 Respondent provide PASS with an opportunity to negotiate on the
 Reorganization.
 
    C. The Great Lakes Region's 80's Maintenance Plan, Case No.
 5-CA-40095
 
    (1) The 1980's Maintenance Plan for the Great Lakes Region Airway
 Facilities (the Plan herein) is a plan to assist Respondent to
 effectively make the transition into a new maintenance concept that FAA
 considers would be required to meet the demands of new equipment and
 technological change.  As FAA document entitled "Maintenance Program
 Plan for the 1980's, Great Lakes Region Airway Facilities" sets forth
 the various purposes and objectives of the Plan.  Respondent considers
 the document to be a "planning tool" concerning staffing requirements if
 equipment is delivered as anticipated and employment attrition occurs as
 expected.  Testimony revealed the Plan will require repeated updating.
 
    (2) The 80's Maintenance Plan suggests that as technology progresses,
 the demand for particular skills will change, new skills will be
 required and the physical relocation of skills will become necessary.
 The Plan recognizes that "(t)he current concept of maintenance is
 labor-intensive, inefficient and incompatible with the technology of new
 facilities," envisions overall staff reductions through implementation
 of the Plan and since " . . . projected attrition alone will not
 accommodate the transition by FY 1984 or 1985 year end", reassignments
 are anticipated.  Additional training will be provided employees " . . .
 as required to insure system continuity when modifications are
 implemented" and for new equipment.
 
    (3) The Plan outlines current staffing in each skill area in a sector
 and planned staffing over the next several years.  For example, the
 specialty area "Navaids/Communications" had 329 employees throughout the
 Great Lakes Region as of September 1, 1983.  Thirty eight of these
 employees were in the Dakota Sector and fifty one were in the Ohio
 sector.  By the end of fiscal year 1985, staffing is scheduled to be
 reduced to a total of 269 "Navaids/Communications" specialists
 throughout the Region, with the Dakota sector employing twenty seven and
 the Ohio sector employing thirty four.  Thus in three years, one skill
 area is projected to lose 60 positions, with the Ohio Sector suffering a
 33% staffing reduction.  Although some specialty areas will receive
 increased staffing, the Plan projects a net staffing reduction from 1416
 employees to a level of 1312 employees.  /4/
 
    (4) The Plan was made available to unit employees.  A "Planning
 Guide" contained in the Plan instructs employees on how to interpret the
 data presented in the Plan.  Thus, according to Maintenance Operations
 Branch Manager Bell, an employee can determine if future staffing
 requirements adversely impact on that employee so that additional
 training for potential vacancies could be sought or a transfer or
 voluntary retirement might be considered.
 
    (5) On October 14, 1983, PASS Regional Vice-Presidents Warren Zentz
 and Bobby Mullins, were briefed by Respondent concerning the Great Lakes
 Region's Maintenance Plan for the 1980s at which time the Union was
 provided briefing summaries, a copy of the Plan and letters soliciting
 written comments and suggestions on the impact and implementation of the
 Plan.
 
    (6)(a) By letter dated October 26, 1983, Zentz requested additional
 time and information to provide input on the Plan.
 
    (b) Respondent's reply informed Zentz that implementation of the Plan
 would be delayed until November 25, 1983, and requested that Zentz
 submit his written comments by November 16, 1983.
 
    (7) By letters dated October 17, 1983, November 8, 1983 and November
 21, 1983, the Union requested that Respondent bargain concerning the
 impact and implementation of the Plan as well as the procedures by which
 such changes would be effectuated.
 
    (8) By letters dated November 1, 1983, November 3, 1983 and December
 23, 1983, Respondent informed the Union that it would not negotiate with
 the Union concerning the Plan.
 
    (9) On or about November 25, 1983, Respondent implemented the Great
 Lakes Region's Maintenance Program Plan for the 1980's.
 
    (10) At the time of hearing attrition rates had been such that no
 transfers or reassignments of unit employees had yet occurred.
 Nevertheless, by the end of fiscal year 1985 changed circumstances could
 require a change in some unit employees' career fields to meet agency
 needs.
 
                                Discussion
 
    As to both the Reorganization of the ARTCCs and the 80's Maintenance
 Plan, Respondent contends that it was not obligated to negotiate with
 the Union on matters of impact and implementation.  Essentially
 Respondent argues:  (1) the FAA/FASTA agreement, supra, was binding on
 FAA and PASS and under that agreement FAA was only obligated to consult
 and not negotiate with PASS on the matters at issue;  (2) FAA fulfilled
 its obligation to consult and;  (3) in any event, Respondent's actions
 did not adversely affect unit employees nor would they foreseeably be
 expected to result in a substantial impact on bargaining unit employees.
 
    With regard to its contention that its bargaining relationship with
 PASS was governed by the terms of the FAA/FASTA agreement, Respondent
 relies on the Authority's decision in U.S. Nuclear Regulatory
 Commission, 6 FLRA 18(1981).  In that case the Authority held, in a
 successor union situation as herein, that existing personnel policies,
 practices and matters affecting working conditions contained in a
 negotiated agreement continue, to the maximum extent possible, upon the
 expiration of the agreement absent an express agreement to the contrary
 or unless modified in a manner consistent with the Statute.  However, in
 three recent cases involving the parties herein the Authority
 distinguished between "mandatory" and "permissive" subjects of
 bargaining with regard to the obligation of the parties to maintain
 existing conditions of employment.  Federal Aviation Administration,
 Northwest Mountain Region, Seattle, Washington, and Federal Aviation
 Administration, Washington, D.C., 14 FLRA No. 89(1984);  Department of
 Transportation, Federal Aviation Administration, Los Angeles,
 California, 15 FLRA No. 21(1984) and Department of Transportation,
 Federal Aviation Administration, San Diego, California, 15 FLRA No.
 86(1984).  In those cases the Authority explained that the principle
 enunciated in Nuclear Regulatory Commission, supra, with respect to the
 maintenance of existing conditions of employment, applied only with
 regard to "mandatory" subjects of bargaining.  The Authority further
 held that with regard to "permissive" subjects of bargaining, /5/ either
 party may unilaterally elect not to be bound by the existing conditions
 of employment upon the expiration of that agreement.  In addition, the
 Authority specifically concluded that the waiver of union bargaining
 rights found in Article 54, Section 2 of the FASTA agreement, supra,
 constituted a permissive subject of bargaining which PASS was entitled
 to terminate when it became the exclusive representative.
 
    Based upon the Authority's decision in FAA, Seattle, Department of
 Transportation, Los Angeles, and Department of Transportation, San
 Diego, supra, I conclude that the waivers of bargaining rights set out
 in Articles 47 and 54 of the FAA/FASTA agreement, supra, terminated when
 PASS President Johannssen unambiguously conveyed to Respondent that PASS
 did not wish to be bound by these provisions.  Thus, by its actions PASS
 extinguished FASTA's contractual waivers regarding the right to
 negotiate, not merely consult, on the procedures and arrangements
 concerning the implementation of the Reorganization of the Air Route
 Traffic Control Centers in the Great Lakes Region and the Great Lakes
 Region's 80's Maintenance Plan.
 
    Turning now to Respondent's argument that no adverse affect or
 substantial impact on unit employees resulted from its conduct, I
 conclude the record does not support Respondent's contention regarding
 either the Reorganization or the 80's Maintenance Plan.  Respondent's
 own documents (paragraph B(7) above) reveal the Reorganization
 anticipates a change in emphasis on job tasks performed by crews, fewer
 midnight shift assignments, a reduction of premium pay and fewer
 employees on rotating shifts "releasing some positions to really
 meaningful support functions on site." Further, the evidence discloses
 that with the change to the seven crew watch fewer employees handle the
 same workload, and changes in work hours and decreases in premium pay
 have already been experienced by some employees.
 
    Similarly with regard to the 80's Maintenance Plan, Respondent's own
 documents, namely the Plan itself, foresee reassignments occasioned by
 the requirements for less staff and training current employees to meet
 the demands of new advanced equipment and technological improvements on
 existing equipment.  In order to be retained, some employees may be
 required to change career fields.  Indeed, employees are encouraged to
 look to the projections set forth in the Plan in order to make value
 judgments on transfers, voluntary retirement or the need for additional
 specialized training.
 
    In its recent decision in Department of Health and Human Services,
 Social Security Administration, Chicago Region, 15 FLRA No. 174(1984),
 the Authority, citing its prior holding in U.S. Government Printing
 Office, 13 FLRA No. 39(1983), clearly indicated that the "substantial
 impact" test in cases giving rise to a bargaining obligation under
 section 7106(b)(2) and (3) of the Statute, was rejected.  Rather, the
 duty to bargain in such a situation arises where the resultant or
 reasonably foreseeable impact of the change in the working conditions of
 bargaining unit employees is more than de minimis.  /6/ Thus, to require
 bargaining, the impact of the Reorganization and the 80's Maintenance
 Plan need not be immediate but only foreseeable, as long as such impact
 would be more than de minimis.
 
    In the circumstances herein I find and conclude that the
 implementation of the Reorganization and the 80's Maintenance Plan
 constituted changes in working conditions which resulted in a more than
 de minimis foreseeable impact on unit employees.  In view of the entire
 foregoing, I conclude that Respondent, by its refusal to negotiate with
 the Union on the procedures and arrangements concerning the
 implementation of the Reorganization and the 80's Maintenance Plan for
 the Great Lakes Region, violated section 7116(a)(1) and (5) of the
 Statute.
 
                                  Remedy
 
    Counsel for the General Counsel and the Union urge that a status quo
 ante remedy be ordered.  Respondent opposes the imposition of such an
 order.  In Federal Correctional Institution, 8 FLRA 604(1982), the
 Authority set forth various criteria to be considered when deciding
 matters involving imposing a status quo ante remedy.  In that case the
 Authority stated:
 
          " . . . in determining whether a status quo ante remedy would
       be appropriate in any specific case involving a violation of the
       duty to bargain over impact and implementation, the Authority
       considers, among other things, (1) whether, and when, notice was
       given to the union by the agency concerning the action or change
       decided upon;  (2) whether, and when, the union requested
       bargaining on the procedures to be observed by the agency in
       implementing such action or change and/or concerning appropriate
       arrangements for employees adversely affected by such action or
       change;  (3) the willfulness of the agency's conduct in failing to
       discharge its bargaining obligations under the Statute;  (4) the
       nature and extent of the impact experienced by adversely affected
       employees;  and (5) whether, and to what degree, a status quo ante
       remedy would disrupt or impair the efficiency and effectiveness of
       the agency's operations."
 
 Applying the above criteria to the case herein:
 
    (1) While Respondent gave timely notice of both the Reorganization
 and the 80's Maintenance Plan to a Union official, in neither case did
 Respondent give notice to Union President Johannssen, the only Union
 official designated to receive notice of contemplated changes in working
 conditions.  See Department of Health and Human Services, Social
 Security Administration, Field Assessment Office, Atlanta, Georgia, 11
 FLRA No. 78(1983).
 
    (2) Respondent's lack of notice to Johannssen precluded a demand for
 negotiations by Johannssen and, in any event, it is clear from the
 record herein that such a demand would have been futile.
 
    (3) Respondent's conduct was certainly deliberate.  However,
 Respondent avers that its conduct was not willful basically because it
 was relying on the FAA/FASTA agreement and its interpretation of Nuclear
 Regulatory Commission, supra, it consistently maintained it was at most
 only obligated to consult with the Union on the Reorganization and 80's
 Maintenance Plan, and such conduct was without animus.  However, in the
 case herein the previous FASTA collective bargaining unit was
 consolidated with other units on two separate occasions prior to the
 implementation of the Reorganization and the 80's Maintenance Plan.  The
 Authority has held that a certification on consolidation creates a new
 bargaining obligation that supersedes any contractual arrangements
 previously existing in the formerly separate units.  See Social Security
 Administration, 11 FLRA No. 76(1983) and Department of Health and Human
 Services, Social Security Administration, 6 FLRA 202(1981).  Accordingly
 I find Respondent's conduct in failing to negotiate with the Union as
 found herein was willful.
 
    (4) I further find that the implementation of the Reorganization as
 described herein significantly impacted upon bargaining unit employees
 at those locations where seven crew watches were put into effect.  Cf.
 Internal Revenue Service (District, Region, National Office Unit), 13
 FLRA No. 61(1983).  Under the seven crew concept fewer employees handle
 the same workload as a five crew watch;  there has been some loss of
 premium pay;  and some change in work hours has been experienced.
 
    As to the 80's Maintenance Plan however, the evidence in my view does
 not indicate that the Plan thus far resulted in any significant impact
 on unit employees.
 
    (5) Turning now to the question of whether a return to the status quo
 ante would disrupt or impair the efficiency and effectiveness of the
 agency's operations, with regard to the Reorganization Respondent in its
 brief, states:
 
          "It would cause the FAA substantial disruption should it be
       ordered to reestablish the five-crew concept, rearrange equipment
       maintenance schedules, assigning equipment responsibilities from
       the Inter-facility Unit to the crews, realigning the supervisory
       staff and other administrative changes that would require extra
       man hours to complete.  It may indeed serve as an adverse impact
       on those bargaining unit employees who have adjusted, and others
       who have benefited from the reorganization should a status quo
       ante remedy be imposed on the agency in this matter."
 
    In my view the disruption described by Respondent is minimal.  Any
 change in working conditions back to pre-change conditions is going to
 involve some dislocation and expense.  When considering that disruption
 to Respondent's operation is a defense to providing a full remedy for
 unfair labor practice conduct, it would appear that something more
 substantial than the disruption of Respondent's operations suggested
 herein would be required.  Compare Department of the Treasury, Internal
 Revenue Service, Jacksonville District, Jacksonville, Florida, 15 FLRA
 No. 187(1984).
 
    As to the 80's Maintenance Plan, Respondent in its brief
 acknowledges:  "Since there has been no significant adverse impact on
 bargaining unit employees and because there is none forseeable (sic) a
 return to status quo would have no affect on the agency's operations".
 Thus any reversion to the status quo ante would apparently produce at
 most minor disruption or adverse consequences to the efficiency and
 effectiveness of Respondent's operations.
 
    Essentially, the test of whether or not to grant a status quo ante
 remedy involves balancing the equities.  Internal Revenue Service,
 Chicago, Illinois, 9 FLRA 648 at 651(1982).  Based upon my evaluation of
 the facts presented herein I will recommend a return to the status quo
 ante as part of the remedy herein.
 
    The Union requests that any status quo ante order should specifically
 provide that any employees who were laid off or resigned in lieu of
 transfer be rehired with full back pay.  The record does not disclose
 that any such employees exist and accordingly, I will not recommend
 adoption of this suggested remedial language.
 
    In view of the entire foregoing I recommend the Authority issue the
 following:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Federal Aviation Administration, Washington,
 D.C., shall:
 
    1.  Cease and desist from:
 
          (a) Reorganizing Air Route Traffic Control Centers without
       first affording the Professional Airways Systems Specialists, the
       employees' exclusive bargaining representative, an opportunity to
       negotiate with respect to the procedures which management will
       observe in implementing such reorganization and appropriate
       arrangements for employees adversely affected thereby.
 
          (b) Implementing 1980's Maintenance Plans for Airway Facilities
       without first affording the Professional Airways Systems
       Specialists, the employees' exclusive bargaining representative,
       an opportunity to negotiate with respect to the procedures which
       management will observe in implementing such plans and appropriate
       arrangements for employees adversely affected thereby.
 
          (c) 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) Return to the practices which existed prior to implementing
       the reorganization of the Great Lakes Region Air Route Traffic
       Control Centers on or about October 1, 1983.
 
          (b) Return to the practice which existed prior to implementing
       the 1980's Maintenance Program Plan for the Great Lakes Region
       Airway Facilities on or about November 23, 1983.
 
          (c) Make whole any adversely affected employee for any loss of
       premium pay suffered as a result of the reorganization of the
       Great Lakes Region Air Route Traffic Control Centers.
 
          (d) Notify the Professional Airways Systems Specialists, the
       employees' exclusive bargaining representative, of any intention
       to reorganize Air Route Traffic Control Centers or implement a
       maintenance plan or program in Airways Facilities and afford it an
       opportunity to negotiate with respect to the procedures which
       management will observe in implementing such reorganization or
       plan and appropriate arrangements for employees adversely
       affected.
 
          (e) Upon request, bargain with the Professional Airways Systems
       Specialists, the employees' exclusive bargaining representative,
       regarding the procedures which management will observe in
       implementing any future reorganization of Air Route Traffic
       Control Centers or maintenance plans or programs in Airways
       Facilities and appropriate arrangements for employees adversely
       affected by the reorganization or plan.
 
          (f) Post at its facilities wherever employees in the
       consolidated unit represented by the Professional Airways Systems
       Specialists, certified on April 14, 1983, are employed, 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 Administrator and shall be posted and maintained by
       him for 60 consecutive days thereafter in conspicuous places,
       including all bulletin boards and other places where notices to
       employees are customarily posted.  The Administrator shall take
       reasonable steps to insure that such notices are not altered,
       defaced, or covered by any other material.
 
          (g) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region V, in writing,
       within 30 days from the date of this Order, as to what steps have
       been taken to comply herewith.
 
                                       (s) SALVATORE J. ARRIGO
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  September 28, 1984
    Washington, DC
 
                                 APPENDIX
 
                          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 LABOR-MANAGEMENT
 RELATIONS STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT reorganize Air Route Traffic Control Centers without
 first affording the Professional Airways Systems Specialists, the
 employees' exclusive bargaining representative, an opportunity to
 negotiate with respect to the procedures which management will observe
 in implementing such reorganization and appropriate arrangements for
 employees adversely affected thereby.
 
    WE WILL NOT implement 1980's Maintenance Plans for Airway Facilities
 without first affording the Professional Airways Systems Specialists,
 the employees' exclusive bargaining representative, an opportunity to
 negotiate with respect to the procedures which management will observe
 in implementing such plans and appropriate arrangements for 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
 Statute.
 
    WE WILL return to the practices which existed prior to implementing
 the reorganization of the Great Lakes Region Air Route Traffic Control
 Centers on or about October 1, 1983.
 
    WE WILL return to the practice which existed prior to implementing
 the 1980's Maintenance Program Plan for the Great Lakes Region Airway
 Facilities on or about November 23, 1983.
 
    WE WILL make whole any adversely affected employee for any loss of
 premium pay suffered as a result of the reorganization of the Great
 Lakes Region Air Route Traffic Control Centers.
 
    WE WILL notify the Professional Airways Systems Specialists, the
 employees' exclusive bargaining representative, of any intention to
 reorganize Air Route Traffic Control Centers or implement a maintenance
 plan or program in Airways Facilities and afford it an opportunity to
 negotiate with respect to the procedures which management will observe
 in implementing such reorganization or plan and appropriate arrangements
 for employees adversely affected.
 
    WE WILL upon request, bargain with the Professional Airways Systems
 Specialists, the employees' exclusive bargaining representative,
 regarding the procedures which management will observe in implementing
 any future reorganization of Air Route Traffic Control Centers or
 maintenance plans or programs in Airways Facilities and appropriate
 arrangements for employees adversely affected by the reorganization or
 plan.
                                       (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 employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region V,
 whose address is:  175 West Jackson Boulevard, Suite 1359-A, Chicago,
 Illinois 60604 and whose telephone number is:  (312) 353-6306.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Judge also recommended that the Respondent make whole any
 adversely affected employee for any loss of premium pay suffered as a
 result of the reorganization of the Great Lakes Region Air Route Control
 Centers.  The Authority finds such remedy is inappropriate in the
 Centers.  The Authority finds such remedy is inappropriate in the
 circumstances of this case.  In this regard, the Authority has
 previously held that in order for a backpay order to be authorized under
 the Back Pay Act, 5 U.S.C. 5596, there must be a determination that not
 only has an employee been adversely affected by an unjustified or
 unwarranted personnel action, but also that but for the improper action
 such employee would not have suffered a loss or reduction in pay,
 allowances, or differentials.  Federal Aviation Administration,
 Northwest Mountain Region, Seattle, Washington and Federal Aviation
 Administration, Washington, D.C., 14 FLRA 644(1984).  In the instant
 case, the Authority, noting that the Judge recommended the make whole
 remedy without applying such a test and the lack of evidence in the
 record to support such a finding, finds that a make whole remedy is
 unwarranted.  See United States Department of Agriculture, Plant
 Protection and Quarantine, Animal and Plant Health Inspection Service,
 17 FLRA No. 40(1985).
 
 
    /2/ While section 7106 of the Statute sets forth various rights
 concerning management's bargaining obligations, under section 7106(b) of
 the Statute management is obligated to bargain on "(2) procedures which
 management officials of the agency will observe in exercising any
 authority under this section;  or (3) appropriate arrangements for
 employees adversely affected by the exercise of any authority under this
 section by such management officials."
 
 
    /3/ On February 2, 1982, upon the certification of PASS as exclusive
 representative for the nationwide unit (paragraph (5) above), Johannssen
 advised Respondent that with regard to the following matters, notice of
 proposed changes should be sent to him since he was the only PASS
 representative authorized to negotiate for the union:  1.  The closing;
 consolidation or relation of FAA facilities;  2.  Reductions in force or
 furlough of employees;  3.  Any reorganization of the FAA or its
 subdivisions;  4.  All matters related to the training of employees;  5.
  Technological changes affecting employees;  and 6.  All other proposed
 changes initiated or being implemented above the FAA regional level.
 
 
    /4/ The reduction would affect approximately 50 bargaining unit
 positions.