20:0486(54)CA - DOT, FAA, Washington, DC and PASS, a/w MEBA -- 1985 FLRAdec CA



[ v20 p486 ]
20:0486(54)CA
The decision of the Authority follows:


 20 FLRA No. 54
 
 DEPARTMENT OF TRANSPORTATION 
 FEDERAL AVIATION ADMINISTRATION 
 WASHINGTON, D.C. 
 Respondent 
 
 and 
 
 PROFESSIONAL AIRWAYS SYSTEMS 
 SPECIALISTS, a/w MARINE ENGINEERS 
 BENEFICIAL ASSOCIATION, AFL-CIO 
 Charging Party 
 
                           Case Nos. 4-CA-30359, 4-CA-30419, 4-CA-30587
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts and accompanying exhibits, and the contentions of
 the parties, the Authority finds:
 
    The consolidated complaint in Case No. 4-CA-30359 alleges that the
 Department of Transportation, Federal Aviation Administration,
 Washington, D.C. (Respondent), violated section 7116(a)(1) and (5) of
 the Statute when it unilaterally discontinued, on or about December 9,
 1982, /1/ its practice whereby employees at the Chattanooga, Tennessee,
 Sector Field Office (SFO) who were required to work emergency overtime
 were permitted to drive government owned vehicles between home and work
 if the employees commuted to work in a carpool.  In Case No. 4-CA-30419,
 if the the consolidated complaint alleges that the Respondent violated
 section 7116(a)(1) and (5) of the Statute when, on April 3, 1983,
 notwithstanding the designation of Howard Johannssen, its President, as
 the Union's sole representative for the purpose of collective bargaining
 and his requests that the Respondent bargain with him, Respondent
 reorganized its Memphis Air Route Traffic Control Center (ARTCC) without
 giving notice to or bargaining with Johannssen concerning the impact and
 implementation of the reorganization.  The complaint further alleges
 that the Respondent violated section 7116(a)(1), (5) and (8) of the
 Statute when the Respondent failed to provide Johannssen with
 information he requested pursuant to section 7114(b)(4) of the Statute.
 In Case No. 4-CA-30587, the complaint alleges that the Respondent
 violated section 7116(a)(1) and (5) of the Statute when, on June 19,
 1983 and May 1, 1983, Respondent implemented the reorganization of its
 Atlanta and Jacksonville ARTCC facilities, respectively, without notice
 to the designated representative of the exclusive representative,
 Johannssen, and without providing Johannssen an opportunity to bargain
 concerning the impact and implementation of the reorganizations.  /2/
 
    Since December 31, 1981, the Professional Airways Systems
 Specialists, a/w Marine Engineers Beneficial Association, AFL-CIO (Union
 or Charging Party), has been the exclusive representative of employees
 in an appropriate nationwide unit which includes, inter alia, employees
 of the Atlanta, Jacksonville, Chattanooga, and Memphis facilities of the
 Respondent.  Prior to the Union's certification, in December 1981, the
 employees had been represented by the Federal Aviation Science and
 Technological Association (FASTA).
 
    While the Respondent initially contended that its bargaining
 obligation concerning the subject changes was limited by virtue of the
 provisions in the FASTA agreement, it subsequently acknowledged in its
 brief to the Authority the applicability of certain Authority precedent
 which issued after the events alleged herein and conceded that it was
 obligated to notify the Charging Party's designated representative,
 Johannssen, and, upon request, negotiate concerning the procedures for
 implementing such changes and appropriate arrangements for employees
 adversely affected thereby.  Thus, Respondent conceded the violations of
 section 7116(a)(1) and (5) of the Statute alleged in the complaint with
 regard to its failure to negotiate concerning procedures and appropriate
 arrangements for employees adversely affected by such changes.  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, Los Angeles, California, 15 FLRA No. 21(1984);
 Department of Transportation, Federal Aviation Administration,
 Washington, D.C. and its Chicago Airways Facilities Sector, 16 FLRA No.
 71(1984).  However, the Respondent never conceded that it failed to
 provide information requested by the Union pursuant to section
 7114(b)(4) of the Statute.  Respondent's brief was limited to addressing
 the issue of the appropriate remedy for its refusal to bargain
 concerning procedures and appropriate arrangements regarding the
 unilateral changes alleged in the complaint.
 
    As previously held by the Authority, where management exercises a
 reserved management right to change conditions of employment, there is
 nonetheless a duty to bargain consistent with section 7106(b)(2) and (3)
 of the Statute /3/ over the procedures that management will follow in
 exercising such rights and appropriate arrangements for employees who
 may be adversely affected thereby.  See Internal Revenue Service, 17
 FLRA No. 103(1985) appeal docketed, sub nom. National Treasury Employees
 Union v. FLRA, No. 85-1361 (D.C. Cir. June 14, 1985) and U.S. Customs
 Service, 18 FLRA No. 34(1985).  Thus, noting particularly that the
 Respondent does not contest the existence of a bargaining obligation
 herein, the Authority concludes that the Respondent's failure to afford
 the Union an opportunity to negotiate concerning procedures and
 appropriate arrangements for employees adversely affected by the above
 unilateral changes, through its designated representative, constitutes a
 violation of section 7116(a)(1) and (5) of the Statute, as alleged in
 the complaint.  /4/
 
    With regard to the allegation in Case No. 4-CA-30419 that the
 Respondent failed to provide information requested by Johannssen, it is
 noted that the requested information was provided to Robinson, the
 Union's local representative, and that the request itself did not
 specify that the information be provided to Johannssen exclusively.
 Thus, noting the fact that the request was for information to be
 provided to the Union, the failure of the Union to timely object to the
 furnishing of the information to Robinson, and no showing or assertion
 that the Union was in any way prejudiced thereby, the Authority
 concludes that the Respondent complied with the Union's request within
 the meaning of section 7114(b)(4) of the Statute in the circumstances of
 this case.  /5/ Accordingly, the Authority concludes that the General
 Counsel has not met the burden of proving that an unfair labor practice
 occurred in this regard, and this aspect of the complaint in Case No.
 4-CA-30419 is dismissed.
 
    With regard to remedy, the Charging Party and Counsel for the General
 Counsel request a status quo ante remedy while the Respondent opposes
 such a remedy.  Based on the facts set forth in the stipulated record,
 the Authority concludes that a status quo ante remedy is not warranted.
 The Authority concludes, after taking into consideration the factors set
 forth in Federal Correctional Institution, 8 FLRA 604(1982), that an
 order requiring the Respondent to bargain upon request about procedures
 to be observed in implementing the changes as well as on appropriate
 arrangements for employees adversely affected by the changes will best
 effectuate the purposes and policies of the Statute.  In this
 connection, the Authority notes the extent of the changes caused by the
 reorganizations involved herein and concludes that a status quo ante
 remedy would seriously disrupt the accomplishment of the Respondent's
 mission and the efficiency of its operations.  It is noted that the
 reorganizations of the Memphis, Atlanta, and Jacksonville facilities
 occurred as a result of budgetary restrictions and staffing reductions,
 and that as a result, the Respondent restructured its crews, realigned
 its staff, abolished positions, and retrained and reassigned personnel
 to other duties.  Finally, it is noted that the Respondent's termination
 of its past practice regarding the use of government vehicles by
 employees was based on a contention in a memorandum to employees at its
 Chattanooga Sector Field Office that Federal law specifically prohibits
 the use of government vehicles for traveling between home and work,
 including those cases where an employee is carpooling to work and has to
 continue his workday on emergency overtime.  As the General Counsel and
 Charging Party did not contest the Respondent's contention of illegality
 in their briefs, the Authority finds it inappropriate under the
 circumstances to order a status quo ante remedy reestablishing such a
 practice.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Department of Transportation, Federal Aviation Administration,
 Washington, D.C., shall:
 
    1.  Cease and desist from:
 
    (a) Reorganizing its Air Route Traffic Control Centers (ARTCCs)
 without first notifying the representative designated by the
 Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive
 representative of its employees, and affording the Union the opportunity
 to request negotiations concerning the procedures to be observed in
 implementing such changes as well as on appropriate arrangements for
 employees adversely affected by such changes.
 
    (b) Refusing to provide an opportunity for the designated
 representative of the Professional Airways Systems Specialists, MEBA,
 AFL-CIO, the employees' exclusive representative, to bargain, to the
 extent consonant with law and regulation, with respect to procedures and
 appropriate arrangements for employees adversely affected by a change in
 the practice at its Chattanooga Sector Field Office (SFO) of permitting
 those employees who were required to work emergency overtime to utilize
 government vehicles for transportation from the worksite to their
 residences.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing 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 Statute:
 
    (a) Upon request by the designated representative of the Professional
 Airways Systems Specialists, MEBA, AFL-CIO, the employees' exclusive
 representative, negotiate concerning the procedures to observed in any
 future reorganization of its ARTCC facilities, and concerning
 appropriate arrangements for employees adversely affected by such
 reorganization.
 
    (b) Upon request by the designated representative of the Professional
 Airways Systems Specialists, MEBA, AFL-CIO, the employees' exclusive
 representative, bargain to the extent consonant with law and regulation
 concerning procedures and appropriate arrangements for employees
 adversely affected by a change in the practice at its Chattanooga SFO of
 permitting those employees who were required to work emergency overtime
 to utilize government vehicles for transportation from the worksite to
 their residences.
 
    (c) Post at its Chattanooga SFO and Memphis, Jacksonville and Atlanta
 ARTCCs copies of the attached Notice on forms to be furnished by the
 Federal Labor Relations Authority.  Such forms shall be signed by
 Respondent's Administrator, 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.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IV, 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.
 
    IT IS FURTHER ORDERED that the portion of the consolidated complaint
 in Case No. 4-CA-30419, alleging a failure to comply with section
 7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) and
 (8) of the Statute, be, and it hereby is, dismissed.
 
    Issued, Washington, D.C., October 15, 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 reorganize our Air Route Traffic Control Centers (ARTCCs)
 without first notifying the representative designated by the
 Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive
 representative of our employees, and affording the Union the opportunity
 to request negotiations concerning the procedures to be observed in
 implementing such changes as well as on appropriate arrangements for
 employees adversely affected by such changes.
 
    WE WILL NOT refuse to provide the designated representative of the
 Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive
 representative of our employees, with an opportunity to bargain, to the
 extent consonant with law and regulation, with respect to the procedures
 to be observed in implementing the change as well as on appropriate
 arrangements for employees adversely affected by the change in our
 practice at the Chattanooga Sector Field Office of permitting employees
 to utilize government vehicles for transportation from the worksite to
 their residences.
 
    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, upon request by the designated representative of the
 Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive
 representative of our employees, negotiate concerning the procedures to
 observed in any future reorganization of our ARTCC facilities, and
 concerning appropriate arrangements for employees adversely affected by
 such reorganization.
 
    WE WILL, upon request by the designated representative of the
 Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive
 representative of our employees, bargain, to the extent consonant with
 law and regulation, concerning the procedures to be observed as well as
 on appropriate arrangements for employees who were required to work
 emergency overtime and who were adversely affected by our decision to
 change the practice at our Chattanooga Sector Field Office of permitting
 employees to utilize government vehicles for transportation from the
 worksite their residences.
                                       (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 IV, Federal Labor Relations Authority, whose address
 is:  Suite 501, North Wing, 1776 Peachtree Street, N.W., Atlanta,
 Georgia 30309 and whose telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ December 9, 1982 is the date stipulated by the parties as the
 correct date of the change.  The Complaint and Consolidated Complaint
 inadvertently state this date as being December 9, 1983.
 
 
    /2/ Section 7116(a)(1), (5) and (8) of the Statute provides:
 
          Sec. 7116.  Unfair Labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (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;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
    Section 7114(b)(4) of the Statute provides:
 
                                .  .  .  .
 
          Sec. 7114.  Representation rights and duties
 
          (b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this section shall
       include the obligation--
 
                                  * * * *
 
          (4) in the case of an agency, to furnish to the exclusive
       representative involved, or its authorized representative, upon
       request and, to the extent not prohibited by law, data--
 
          (A) which is normally maintained by the agency in the regular
       course of business;
 
          (B) which is reasonably available and