20:0430(45)CA - FAA and Professional Airways Systems Specialists, MEBA -- 1985 FLRAdec CA
[ v20 p430 ]
The decision of the Authority follows:
20 FLRA No. 45 FEDERAL AVIATION ADMINISTRATION Respondent and PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS, MEBA, AFL-CIO Charging Party Case No. 3-CA-40126 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 the contentions of the parties, the Authority finds: The complaint alleges that the 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/ by failing and refusing to provide the Professional Airways Systems Specialists, MEBA, AFL-CIO (PASS) with notice and an opportunity to negotiate over the impact and implementation of its decision to assign a bargaining unit employee stationed at its Bridgeport, West Virginia facility to new duties at its Elkins and Ellimore, West Virginia facilities. In its brief, the Respondent no longer relies on its earlier defense that PASS, based upon a collective bargaining agreement between the Respondent and the prior exclusive representative of the unit employees, Federal Aviation Science and Technological Association, had waived its right to bargain on the matter herein. Instead, the Respondent maintains that it had no duty to bargain with PASS concerning the subject change because the assignment of new duties to the employee did not result in a substantial impact on the employee's working conditions. On December 31, 1981, PASS was certified as the exclusive representative for a unit of employees including those located at the facilities involved herein. On April 14, 1983, PASS was certified as the exclusive representative for separate nationwide consolidated units of the Respondent's professional and nonprofessional employees. The stipulated record reveals that the principal duties of the Respondent's unit employees are the repair and maintenance of radar, communication, navigational, computer and other electronic equipment used in FAA's national air traffic control system. On or about November 1, 1983, the Respondent assigned James Beuhring, an electronic technician stationed at its Bridgeport, West Virginia facility, to new duties at its facilities located at Elkins and Ellimore, West Virginia. As a result of this assignment, the employee, whose duty station remained the same, was now required to travel from Bridgeport to Elkins and/or Ellimore approximately three to five times a week. One way travel from Bridgeport to Elkins is approximately 55 miles; one way travel from Bridgeport to Ellimore is approximately 42 miles. Prior to the new assignment described above, Beuhring had been assigned, on or about February 25, 1983, to some duties at the Elkins and Ellimore facilities. These duties required occasional travel from Bridgeport to Elkins and Ellimore, West Virginia. By letter dated May 16, 1983, Howard Johannssen, PASS' National President, notified the Respondent's Administrator that "unless specific notice to the contrary (was) given, (he was) the only PASS representative authorized to engage in collective bargaining on behalf of the unit," and that "notice of any proposed changes in . . . working conditions of unit employees . . . be directed to (him)." Subsequently, by letter dated November 2, 1983, Johannssen requested to bargain over the impact and implementation of the change in the subject employee's working conditions mentioned above. This request was received by the Respondent; however, the latter did not reply to it. By memorandum dated November 2, 1983, employee Beuhring filed a grievance relating to the assignment of duties in Elkins and Ellimore, West Virginia. In particular, the grievance concerned the Respondent's (1) refusal to issue Beuhring temporary duty orders or permanent change of station orders in regard to his new assignments; and (2) refusal to allow Beuhring to use his privately owned vehicle for travel on official business from Bridgeport to the new locations. On or about November 10, 1983, the Respondent denied this grievance. The General Counsel asserts that the Respondent was obligated to negotiate over the impact and implementation of the change set forth above inasmuch as said change resulted in both actual and reasonably foreseeable impact on the unit employee; therefore, the General Counsel contends that the Respondent's failure to provide notice to PASS and afford it an opportunity to bargain as stated above constitutes a violation of the Statute. With regard to actual impact, the General Counsel contends that the employee's new assignment required a significant amount of additional travel, and that to do so he had to use an unsafe General Services Administration (GSA) car. /2/ General Counsel contends that such change raised foreseeable impact issues, including, inter alia, the need for additional training, safety procedures, and equipment. The Respondent contends, as noted above, that the assignment herein did not result in a substantial impact on the employee. Rather, it asserts that the employee already had responsibilities at Elkins and Ellimore since February 1983, and that the only tangible difference in his working conditions identified in the record is the increased frequency of his travel after November 1. Further, the Respondent contends that any impact concerning travel requirements on the employee which was raised in a grievance filed by him is barred from consideration by section 7116(d) of the Statute. /3/ Finally, it asserts that the mechanical problems experienced by the employee with the GSA vehicle are of no consequence since the employee never claimed that the vehicle was unsafe and, if it were, GSA regulations provide that he would not have been required to use it. The Authority has previously 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 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. /4/ 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, the Authority finds, based upon the totality of the facts and circumstances presented, that the impact or reasonably foreseeable impact of the assignment of new duties on the conditions of employment of the unit employees herein was no more than de minimis. Accordingly, it follows that the Respondent was under no obligation to negotiate with PASS pursuant to section 7106(b)(2) and (3) of the Statute concerning the procedures it would observe in implementing the subject change or concerning appropriate arrangements for the one unit employee adversely affected thereby. In reaching this result, the Authority notes that the nature of the change involved the assignment of new duties to only one employee stationed at the Respondent's Bridgeport, West Virginia facility. While the new assignment herein involved indefinite work responsibilities at the Respondent's Elkins and Ellimore, West Virginia facilities, the Authority further notes that the employee has had work responsibilities at these facilities since February 1983, and there is no evidence in the record to show that the duties resulting from the new assignments were significantly different from the duties required to be performed by the earlier assignment, other than, as described above, the increased frequency in the employee's travel. Further, the subject change involved only one employee out of a nationwide consolidated bargaining unit of the Respondent's employees. With respect to the alleged unsafe conditions of a Government-owned vehicle required by the agency for travel, it appears that the employee never advised his supervisor that he considered the vehicle to be unsafe, nor does the record reveal that certain GSA regulations pertaining to the operation and maintenance of such vehicle could not be utilized to address the employee's concerns relative to its maintenance. Based on the totality of the facts and circumstances presented in this case, and noting particularly that the change involved only the increased frequency in travel of one employee in a nationwide consolidated unit, the Authority concludes that the impact or reasonably foreseeable impact of the subject change on the unit employee's conditions of employment was no more than de minimis. Therefore, the Respondent was under no obligation to notify PASS and afford it an opportunity to request bargaining pursuant to section 7106(b)(2) and (3) of the Statute, and accordingly, the complaint shall be dismissed. /5/ ORDER IT IS ORDERED that the complaint in Case No. 3-CA-40126 be, and it hereby is, dismissed. Issued, Washington, D.C., September 30, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- 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-- (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/ Although, the General Counsel contends that the employee had to use an unsafe vehicle, the stipulated record reveals that the employee did not tell his supervisor that he considered the vehicle to be unsafe. /3/ Section 7116(d) of the Statute provides in pertinent part: (I)ssues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures. /4/ Additionally, Member McGinnis indicated in a separate concurring opinion that he would also consider, in determining de minimis issues, when the implementation of a change would involve or adversely affect unit employees in assessing the totality of the facts and circumstances presented. /5/ In view of the disposition herein, it is unnecessary to pass upon the Respondent's contention with regard to section 7116(d) of the Statute; however, see generally Department of Defense Dependents Schools, Pacific Region and Overseas Education Association, 17 FLRA No. 135(1985), petition for review filed sub nom. Overseas Education Association, NEA v. FLRA, No. 85-1420 (D.C. Cir. July 10, 1985) wherein the Authority set forth factors to be considered for determining the applicability of that section.