20:0548(68)CA - DOT, FAA Washington, DC; FAA Eastern Region, Jamaica, NY and FAA, Airways Facilities Sector 810, Albany, NY and Professional Airways Systems Specialists -- 1985 FLRAdec CA



[ v20 p548 ]
20:0548(68)CA
The decision of the Authority follows:


 20 FLRA No. 68
 
 UNITED STATES DEPARTMENT OF TRANSPORTATION 
 FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C.; 
 FEDERAL AVIATION ADMINISTRATION, EASTERN REGION 
 JAMAICA, NEW YORK; AND FEDERAL AVIATION 
 ADMINISTRATION, AIRWAYS FACILITIES SECTOR 810 
 ALBANY, NEW YORK 
 Respondent 
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS 
 Charging Party 
 
                                              Case No. 1-CA-30218
 
                            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 Charging Party and the General
 Counsel filed exceptions to the Judge's Decision, and the Respondent
 filed an opposition to the General Counsel's exceptions.
 
    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, and noting that the only issue
 presented concerned whether the Charging Party was bound by a waiver
 which the Authority has addressed in a number of published decisions
 issued subsequent to the Judge's decision herein, /1/ the Authority
 adopts the Judge's findings and conclusions, and his recommended Order
 /2/ as modified.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute, the Authority hereby orders that the United States Department
 of Transportation, Federal Aviation Administration, Washington, D.C.;
 Federal Aviation Administration, Eastern Region, Jamaica, New York;  and
 Federal Aviation Administration, Airways Facilities Sector 810, Albany,
 New York, shall:
 
    1.  Cease and desist from:
 
          (a) Implementing any reduction in force at the Federal Aviation
       Administration, Airways Facilities Sector 810, Albany, New York,
       affecting employees represented exclusively by the Professional
       Airways Systems Specialists, the employees' exclusive
       representative, without first providing appropriate advance notice
       to the Professional Airways Systems Specialists, and affording it
       an opportunity to bargain with respect to procedures and
       appropriate arrangements for employees adversely affected by such
       reduction in force.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request rescind the July 23, 1983, reduction in force
       at the Federal Aviation Administration, Airways Facilities Sector
       810, Albany, New York, and reinstate Mr. Andrew Panek to his
       position as a Maintenance Mechanic WG-4749-11.
 
          (b) Notify the appropriate representative of the Professional
       Airways Systems Specialists of any intended reduction in force
       affecting employees represented exclusively by the Professional
       Airways Systems Specialists at the Federal Aviation
       Administration, Airways Facilities Sector 810, Albany, New York,
       and afford such representative an opportunity to request
       bargaining with respect to procedures and appropriate arrangements
       for employees adversely affected by such reduction in force.
 
          (c) Post at its facilities at the Federal Aviation
       Administration, Washington, D.C.; Federal Aviation Administration,
       Eastern Region, Jamaica, New York;  and Federal Aviation
       Administration, Airways Facilities Sector 810, Albany, New York,
       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 of the Federal Aviation
       Administration, 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.
 
          (d) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region I, 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., October 29, 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 implement any reduction in force affecting employees
 represented exclusively by the Professional Airways Systems Specialists
 at the Federal Aviation Administration, Airways Facilities Sector 810,
 Albany, New York, without first providing appropriate notice to the
 Professional Airways Systems Specialists, the employees' exclusive
 representative, and affording such representative an opportunity to
 bargain with respect to procedures and appropriate arrangements for
 employees adversely affected by such reduction in force.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, rescind the July 23, 1983, reduction in force
 at the Federal Aviation Administration, Airways Facilities Sector 810,
 Albany, New York, and reinstate Mr. Andrew Panek to his position as a
 Maintenance Mechanic WG-4749-11.
 
    WE WILL notify the appropriate representative of the Professional
 Airways Systems Specialists of any intended reduction in force affecting
 employees represented exclusively by the Professional Airways Systems
 Specialists at the Federal Aviation Administration, Airways Facilities
 Sector 810, Albany, New York, and afford it an opportunity to request
 bargaining with respect to procedures and appropriate arrangements for
 employees adversely affected by such reduction in force.
                                       (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 I, Federal Labor Relations Authority, whose address is:
  441 Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone
 number is:  (617) 223-0920.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 1-CA-30218
 
    Scott Kallman, Esquire
    For the Respondent
 
    Marilyn Z. Roth, Esquire
    For the General Counsel
 
    Joseph E. Kolick, Jr., Esquire
    For the Charging Party
 
    Before:  LOUIS SCALZO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose as an unfair labor practice proceeding under the
 provisions of the Federal Service Labor-Management Relations Statute, 92
 Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter referred to as "the
 Statute"), and the Rules and Regulations issued thereunder.
 
    The complaint alleges that commencing on or about May 18, 1983, the
 United States Department of Transportation, Federal Aviation
 Administration (FAA), Washington, D.C.; FAA Eastern Region, Jamaica, New
 York;  and FAA Airways Facilities Sector 810, Albany, New York
 (Respondent) committed unfair labor practices within the meaning of
 Section 7116(a)(1) and (5) of the Statute by refusing to bargain in good
 faith with the Professional Airways Systems Specialists (Charging Party,
 PASS or Union).  The specific conduct alleged to be violative of these
 sections included:
 
          (a) Changing conditions of employment on or about May 18, 1983,
       by implementing a reduction in force in the Albany, New York
       Airways Facilities Sector without providing prior notice to the
       Union at the national level of recognition, and/or without
       providing the Union at any level of recognition an opportunity to
       negotiate over the impact and implementation of Respondent's
       decision to effectuate the mentioned reduction in force.
 
          (b) Refusing, on or about May 18, 1983, and thereafter, to
       negotiate with Howard S. Johannssen, the Union representative
       designated to receive notice of local changes in working
       conditions, and/or refusing to negotiate with Howard S.
       Johannssen, the Union representative designated to negotiate over
       the impact and implementation of the reduction in force.
 
    Counsel representing the Respondent relies primarily upon the
 contention that the reduction in force and notice relating thereto were
 effectuated by the Respondent in accordance with an expired collective
 bargaining agreement negotiated in 1977 by the FAA and the Federal
 Aviation Science and Technological Association (FASTA), a union which
 represented the bargaining unit in question until certification of the
 Charging Party on December 31, 1981.  It was also contended that in the
 absence of agreement to the contrary, or unless modified in a manner
 consistent with the Statute, the 1977 FASTA agreement was, and still is,
 fully binding upon the parties herein.
 
    Since the FASTA agreement merely provided for consultation with FASTA
 before implementing reduction in force procedures, Respondent takes the
 position that a waiver of bargaining rights was binding upon the
 Charging Party in the absence of a new collective bargaining agreement
 restoring bargaining rights to the Charging Party.
 
                             Findings of Fact
 
    Background
 
    On December 31, 1981, the Charging Party was certified as the
 exclusive representative of a nationwide unit of FAA employees in
 Respondent's Airways Facilities Division (G.C. Exh. No. 12).  Prior to
 the certification, this bargaining unit, which included Respondent's
 employees in the Albany Sector, was represented by FASTA.  The FAA and
 FASTA had negotiated a collective bargaining agreement which took effect
 on December 1, 1977 (R. Exh. No. 1).  The agreement provided, in
 pertinent part, as follows:
 
     ARTICLE 7 - RIGHTS AND RESPONSIBILITIES OF UNION
 REPRESENTATIVES
 
          Section 1.  The Employer agrees to recognize the officers and
       duly designated representatives of the Union as established by
       this agreement.
 
                                  * * * *
 
          Section 3.  In addition, the Union may designate one sector
       representative at each airway facilities sector.  The designation
       shall be in writing.  At the sector representative's option,
       he/she may designate, in writing, an alternate to act for him/her
       when he/she is absent.  Only the sector representative, or in
       his/her absence the designated alternate, may deal with the sector
       manager and/or his/her designee.  During any meeting where the
       sector manager is accompanied by other management representatives,
       the sector representative may be accompanied by his/her designated
       alternate or other representatives so as to allow the Union the
       same number of participants at the meeting.
 
                                  * * * *
 
          Section 10.  The Union representatives specified in the above
       Sections of this Article are the only individuals authorized to
       represent the Union in dealings with FAA officials at the
       respective levels specified in this Article.
 
                                  * * * *
 
                      ARTICLE 48 - REDUCTION-IN-FORCE
 
          Section 1.  The Employer agrees to avoid or minimize a
       reduction-in-force by taking such actions as restricting
       recruitment and promotions, by meeting ceiling limitations through
       normal attrition and by reassignment of qualified surplus
       employees to vacant positions that management plans to fill.
 
          Section 2.  The Employer agrees to notify the Union when it is
       determined that reduction-in-force actions will be necessary
       within the unit.  The Union will be notified as to the number of
       positions to be reduced and the vacant positions that management
       plans to fill.  At this time, the Union may make its views and
       recommendations known concerning the procedures management plans
       to follow in the implementation of such reduction-in-force
       actions.
 
          Section 3.  All reductions-in-force will be administered in
       accordance with prescribed laws and Civil Service Commission
       regulations.
 
          Section 4.  In the event of a reduction-in-force, the affected
       employee and/or his/her Union representative will, upon request,
       be provided access to master retention registers relative to
       his/her involvement.
 
          Section 5.  The Union will be provided at the end of the
       reduction-in-force with a list of all vacancies affected by and
       filled during the reduction-in-force.
 
    The Charging Party did not ratify or adopt the FASTA agreement
 following certification on December 31, 1981.  Instead, Mr. Howard E.
 Johannssen, the Charging Party's President, informed then FAA
 Administrator J. Lynn Helms in a February 2, 1982, letter, that Mr.
 Johannssen alone had authority to negotiate on behalf of the Charging
 Party with respect to reductions in force and other selected areas of
 interest;  that notice of proposed changes relating to these subjects
 should be transmitted to Mr. Johannssen;  and that Mr. Johannssen would
 arrange for negotiations through any FAA official designated for this
 purpose (C.P. Exh. No. 1).  Mr. Johannssen withdrew the authority of
 local representatives to engage in negotiations or conclude agreements
 in the absence of specific authorization.
 
    By letter dated February 8, 1982, Mr. E. V. Curran, FAA Director of
 Labor Relations, informed Mr. Johannssen that the FAA refused to accede
 to the demand, noting that the provisions of the 1977 agreement would
 remain in effect (C.P. Exh. No. 2).  /3/
 
    By letter dated May 28, 1982, Mr. Johannssen effected a further
 limitation on the bargaining authority of Union officials below the
 level of the national negotiating team (C.P. Exh. No. 3).  He stated:
 
          For the sake of simplicity and clarity during contract
       negotiations, any prior bargaining authority given to any PASS
       representative other than the undersigned is hereby revoked with
       respect to the national unit.  Henceforth, I should be notified of
       all proposed changes in conditions of employment of bargaining
       unit members, and only the PASS national negotiating team shall be
       authorized to bargain on behalf of PASS with respect to the
       national unit.
 
    A June 9, 1982 letter addressed to Mr. Johannssen by Mr. Curran
 reiterated that the terms of the 1977 agreement were viable, and that
 changes would be made "after appropriate dealings with a PASS
 representative." (C.P. Exh. No. 4).  By letter dated August 9, 1982, Mr.
 Johannssen wrote to each PASS Local President and stated:
 
          . . . I have informed Administrator Helms that any change
       whatsoever that is negotiable under the law can only be
       accomplished by me at the national level.  (G.C. Exh. No. 3).
 
    By letter dated December 2, 1982, Mr. Irving Schneider, the PASS
 Sector Representative for the Albany Sector wrote to Albany Sector
 Manager William T. Booker to remind him that Mr. Johannssen would be the
 appropriate person to notify of proposed changes in the terms and
 conditions of employment (G.C. Exh. No. 4).
 
   Union Response to Information Concerning Proposed Reduction in Force
 
    On April 21, 1983, Mr. Booker gave oral notice of a proposed Albany
 Sector reduction in force to Mr. Schneider (Tr. 17-18).  He also advised
 that Mr. Andrew Panek, a WG-4749-11, bargaining unit employee stationed
 in Albany would be involved, and that Mr. Schneider could discuss the
 matter with Ms. Jan Henock, a staffing systems development specialists
 in FAA's Eastern Regional Office (Tr. 18).  Mr. Schneider advised Mr.
 Booker to contact Mr. Johannssen concerning the proposed reduction in
 force (Tr. 18).  /4/ Mr. Schneider also advised Ms. Henock that she
 should communicate with Mr. Johannssen concerning the issue (Tr. 18-19).
 
    By letter dated April 25, 1983, Mr. Schneider wrote to Sector Manager
 Booker to acknowledge that he had been advised of a possible reduction
 in force affecting one Wage Grade 11 position in the Albany Sector.  Mr.
 Schneider requested pertinent information relating to the proposed
 change, requested impact and implementation negotiations, and
 specifically advised that Mr. Booker should respond directly to Mr.
 Johannssen (G.C. Exh. No. 2).  Mr. Schneider also phoned Mr. Johannssen
 to apprise him of the matter (Tr. 20-21).
 
    By letter dated May 16, 1983, Mr. Johannssen again wrote to
 Administrator Helms to demand that he be notified of changes.  He
 stated:
 
          Please be advised that, unless specific notice to the contrary
       is given, I am the only PASS representative authorized to engage
       in collective bargaining on behalf of this unit.  . . . Once I
       receive notice I will contact any designated official to arrange
       for negotiations regarding such proposed change.  (C.P. Exh. No.
       5).
 
    By letter dated May 17, 1983, Mr. Johannssen wrote to Mr. Booker to
 restate the Charging Party's position that Mr. Johannssen be advised of
 proposed changes in the Albany Sector.  Specific reference was made to
 the reduction in force mentioned by Mr. Booker in a conversation with
 Mr. Schneider (G.C. Exh. No. 5).  A similar letter was sent by Mr.
 Johannssen to Mr. Joseph C. Winkler, Acting Director of Labor Relations,
 FAA, Eastern Region (G.C. Exh. No. 6).
 
    In the midst of Charging Party demands for notification at Mr.
 Johannssen's level, and demands for impact and implementation bargaining
 with respect to the proposed reduction in force in the Albany Sector,
 Mr. Panek was advised by letter dated May 18, 1983, that he would be
 released from his competitive level as a result of the reduction in
 force (G.C. Exh. No. 7).  /5/ He was given the option of transferring to
 a similar position in Saranac Lake, New York in lieu of separation.
 
    By letter dated May 23, 1983, Mr. Schneider wrote to Mr. Booker to
 protest issuance of the May 18, 1983 letter to Mr. Panek (G.C. Exh. No.
 8).  He demanded recision of the May 18, 1983 letter to Mr. Panek, and
 reiterated the Charging Party's bargaining request.
 
    Mr. Booker replied by letter dated May 25, 1983, and noted that "the
 Sector is not empowered to negotiate at the national level." (G.C. Exh.
 No. 9).  In an undated letter addressed to Mr. Johannssen by Mr. Joseph
 Noonan, then FAA's Acting Director of Labor Relations, Mr. Noonan
 replied to Mr. Johannssen's earlier May 16, 1983, demand for
 notification, and indicated that the demand was being rejected (C.P.
 Exh. No. 6).  /6/ Through the Noonan letter the Respondent insisted that
 FASTA agreement provisions relating to notice were fully applicable, and
 that, "(t)he FAA, at the appropriate level, will continue to notify
 PASS, at the appropriate level of any proposed changes in personnel
 policies, practices and matters affecting working conditions."
 
    Thereafter, on behalf of Mr. Johannssen, Mr. Schneider transmitted a
 May 26, 1983 letter to Mr. Booker to renew the request for impact and
 implementation bargaining relating to the Albany, New York reduction in
 force, and to demand recision of the action affecting Mr. Panek's
 position (G.C. Exh. No. 10).  The record does not reflect a specific
 reply to this letter;  however, in a June 2, 1983 communication Mr.
 Joseph C. Winkler, Acting Director of Labor Relations, FAA Eastern
 Region, wrote to Mr. Johannssen in response to the latter's earlier May
 17, 1983 letter to Mr. Booker (G.C. Exh. No. 11).  Mr. Winkler advised
 that the Respondent had complied with the provisions of the FASTA
 agreement in implementing the Albany reduction in force.  He stated that
 the Charging Party was provided with an opportunity to consult on the
 issue, but thereafter did not take advantage of the opportunity.
 
    Mr. Panek elected to decline the offer to transfer, and on July 23,
 1983, his employment was terminated (TR. 23-24).  As a result of the
 reduction in force employees remaining have had to assume a heavier
 workload (Tr. 24-25).
 
                        Discussion and Conclusions
 
    The basic issue posed in this case was recently addressed by the
 Authority in two decisions involving the parties herein.  Federal
 Aviation Administration, Northwest Mountain Region, Seattle, Washington,
 and Federal Aviation Administration, Washington, D.C., 14 FLRA No. 89
 (1984), 14 FLRA 644;  Department of Transportation, Federal Aviation
 Administration, Los Angeles, California, 15 FLRA No. 21(1984), 15 FLRA
 100.  These cases address the issue of whether conditions of employment
 contained in a negotiated agreement continue following the expiration of
 that agreement.  Both cases hold that where conditions of employment are
 established pursuant to the parties' mutual obligation to negotiate over
 mandatory subjects of bargaining, such conditions continue to the
 maximum extent possible following the expiration of the negotiated
 agreement.  /7/ The Authority noted that such a result fosters stability
 in Federal labor-management relations, an underlying purpose of the
 Statute.
 
    However, the Authority distinguished such matters from those which
 relate to permissive subjects of bargaining, and concluded that in cases
 falling within the permissive category, or those involving subjects
 outside the required scope of bargaining under the Statute, either party
 retains the right to unilaterally terminate such conditions upon the
 expiration of the agreement.  In the latter situation the Authority
 explained that where parties have elected to bargain over permissive
 subjects of bargaining and have reached agreement thereon, stability in
 Federal labor management relations can be achieved during the life of
 the parties' agreement while preserving each party's right to terminate
 such matters upon the expiration of that agreement.  It was further
 noted that such a result was consistent with Congressional intent that
 in any subsequent negotiations, either party may elect not to bargain
 over permissive subjects.
 
    In Department of Transportation, Federal Aviation Administration, Los
 Angeles, California, supra, the Authority considered a FASTA agreement
 provision involving watch schedule changes.  A waiver provision
 contained therein is nearly identical to the language creating the
 waiver in Article 48 of the FASTA agreement, in that both articles
 provide for the consideration of FASTA "views and recommendations" in
 lieu of bargaining.  Applying the principles formulated by the
 Authority, it must be concluded that the waiver provision reflected in
 Article 48, also involved a permissive subject of bargaining.
 Accordingly, it terminated when the Union first indicated its intent to
 no longer be bound by the FASTA agreement.  The Respondent had no right
 to insist upon enforcement of the waiver of bargaining rights reflected
 in Article 48.  Instead, the Respondent was under an obligation to
 bargain over the impact and implementation of its decision to effectuate
 a reduction in force in the Albany Sector.  Respondent's refusal to do
 so was violative of Section 7116(a)(1) and (5) of the Statute.
 International Brotherhood of Electrical Workers, AFL-CIO, Local 121, 8
 FLRA No. 35 (1982), 8 FLRA 188;  American Federation of Government
 Employees, AFL-CIO, Local 1692, 8 FLRA No. 37 (1982), 8 FLRA 194;
 National Treasury Employees Union, 11 FLRA No. 53 (1983), 11 FLRA 254;
 American Federation of Government Employees, 11 FLRA No. 54(1983), 11
 FLRA 261;  U.S. Army Engineer Center and Fort Belvoir and U.S.
 Department of the Army, 13 FLRA No. 116(1984), 13 FLRA 707;  Association
 of Civilian Technicians, Pennsylvania State Council, 14 FLRA No. 6
 (1984), 14 FLRA 38.
 
    The same result is reached when the provisions of Article 7 of the
 FASTA agreement are considered.  Portions of this Article designate
 specific FASTA "officers and duly designated representatives" as the
 appropriate individuals to receive FAA recognition.  It is clear that
 these portions of Article 7 involve permissive subjects of bargaining.
 
    In American Federation of Government Employees, AFL-CIO, 4 FLRA No.
 39 (1980), 4 FLRA 272, a union was charged with failure to bargain
 concerning a management proposal prescribing the organizational level
 and segment from which the union would be required to designate its
 representatives when dealing with agency management on certain specified
 matters.  The Authority held that it was "within the discretion of both
 agency management and labor organizations holding exclusive recognition
 to designate their respective representatives when fulfilling their
 responsibilities under the Statute." The Authority noted that
 management's proposal on this subject was "permissive in nature and
 therefore outside the required scope of bargaining."
 
    It follows therefore that the Charging Party retained the right to
 unilaterally terminate those portions of Article 7 relating to the
 designation of union representatives.  Upon receipt of certification the
 Charging Party had the right to insist that Mr. Johannssen would be the
 appropriate party to receive notice of changes in the terms and
 conditions of employment.  That is, the Charging Party had a right to
 elect not to be bound by the portions of Article 7 dealing with the
 designation of FASTA representatives.  Federal Aviation Administration,
 Northwest Mountain Region, Seattle, Washington, and Federal Aviation
 Administration, Washington, D.C., supra.  The record reflects that the
 Charging Party exercised this right.  /8/
 
    In this case the record disclosed that the Respondent determined
 which of the Union's representatives would be recognized.  Notice of the
 proposed reduction in force was given to Mr. Schneider, and not to Mr.
 Johannssen despite specific prior requests that Mr. Johannssen be
 notified of changes.  Repeated efforts to persuade the Respondent to
 deal with Mr. Johannssen were either ignored or repudiated by
 Respondent's representatives.  The failure to provide a collective
 bargaining representative with appropriate notice of changes in the
 terms and conditions of employment operates to the representative
 opportunity to make an informed decision concerning action to be taken.
 Department of Defense, Department of the Navy, Naval Ordnance Station,
 Louisville, Kentucky, supra, note 5.
 
    The fact that Mr. Johannssen did subsequently receive actual notice
 of the proposed reduction in force through Mr. Schneider, the Union's
 Albany Sector representative does not inure to the benefit of the
 Respondent in this case.  Mr. Schneider was not the appropriate Union
 official to receive notice, and the Respondent was aware of the Union's
 designation of Mr. Johannssen.  Moreover, receipt of actual notice by
 Mr. Johannssen did not benefit the Union since the Respondent refused to
 negotiate concerning the reduction in force at any organizational level
 of the Union.
 
    Agencies have an obligation to recognize and deal with
 representatives selected to act for the collective bargaining
 representative.  A refusal to do so constitutes an attempt to interfere
 in a union's internal affairs, and is violative of Section 7116(a)(1).
 It also constitutes an improper refusal to consult or negotiate in good
 faith with a labor organization in violation of Section 7116(a)(5).
 Philadelphia Naval Shipyard, 4 FLRA No. 38 (1980), 4 FLRA 255.  Since
 the Respondent failed to recognize the designation of Mr. Johannssen,
 and otherwise repudiated the Charging Party's designation of bargaining
 representative, the Respondent's conduct in this area of concern was
 also violative of Section 7116(a)(1) and (5) of the Statute.  /9/
 
    As a remedy in this case the General Counsel and the Charging Party
 seek a cease and desist order, posting, return to status quo ante, and
 back pay for Mr. Panek from the date of his separation until reinstated.
  The Authority has held that status quo ante remedies may be issued in
 refusal to bargain cases even when the agency decision itself was not
 negotiable in the first instance.  Federal Correctional Institution, 8
 FLRA No. 111 (1982), 8 FLRA 604.  In Federal Correctional Institution
 the Authority stated:
 
          Accordingly, 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.
 
    The Respondent refused to provide notice of the reduction in force to
 Mr. Johannssen despite the fact that he was designated as the
 appropriate Union representative to receive notice of changes in the
 terms and conditions of employment.  Both the Union official receiving
 notice of the reduction in force, and Mr. Johannssen promptly requested
 impact and implementation bargaining;  however, the Respondent refused
 these bargaining requests.  The Respondent's failure to discharge its
 bargaining obligations under the Statute was intentional, although based
 upon the mistaken legal conclusion that Respondent was entitled to
 adhere to provisions of Article 7 and 48 of the FASTA agreement.  The
 action taken by the Respondent had an impact in that it resulted in Mr.
 Panek's separation from his position, and generated an increase in
 workload for employees retained.  The record reflects no showing that a
 return to status quo ante would disrupt or impair the efficiency and
 effectiveness of the agency's operations.  Based upon a careful
 balancing and consideration of these factors it is concluded that a
 status quo ante remedy is warranted, and further that such a remedy will
 best effectuate the purposes and policies of the Statute.
 
    However, a back pay order would be inappropriate in this case.  In
 order for retroactive back pay 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 Region,
 Seattle, Washington, and Federal Aviation Administration, Washington,
 D.C., supra.  Department of the Air Force, Air Force Systems Command,
 Electronic Systems Division, 14 FLRA No. 63(1984), 14 FLRA 390.  /10/ In
 the circumstances of this case it cannot be established that Mr. Panek's
 employment would have continued without loss of pay but for the
 Respondent's unlawful refusal to notify the designated Union
 representative, and unlawful refusal to bargain over the impact and
 implementation of the reduction in force.
 
    Counsel for the General Counsel contends that "in view of the
 national implications of Respondent's conduct" the Respondent should be
 required to post notices at all locations where bargaining unit
 employees are employed (G.C. Brief at 14).  The evidence does disclose
 that policy governing Respondent's conduct in this case was formulated
 at the highest levels of the FAA and implemented by officials at FAA's
 headquarters, FAA's Eastern Region, and FAA's Airways Facility Sector
 810.  Accordingly, it would be appropriate to effect a posting at each
 of these levels of Respondent's operation inasmuch as the unlawful
 practices established occurred at these locations.  Veterans
 Administration Medical Center, Bath, New York, and Veterans
 Administration, Washington, D.C., 12 FLRA No. 107 (1983), 12 FLRA 552;
 National Treasury Employees Union, 10 FLRA No. 91 (1982), 10 FLRA 519,
 aff'd, 721 F.2d 1402 (D.C. Cir. 1983;  Overseas Education Association,
 11 FLRA No. 75 (1983), 11 FLRA 377.
 
    Having found that the Respondent violated Sections 7116(a)(1) and (5)
 of the Statute, it is recommended that the Authority issue the following
 Order:
 
                                   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 Federal Aviation Administration, Washington, D.C., and Federal
 Aviation Administration, Eastern Region, Jamaica, New York;  and Federal
 Aviation Administration, Airways Facilities Sector 810, Albany, New
 York, shall:
 
    1.  Cease and desist from:
 
          (a) Implementing any reduction in force at the Federal Aviation
       Administration, Airways Facilities Sector 810, Albany, New York,
       affecting employees represented exclusively by Professional
       Airways Systems Specialists, the employees' exclusive
       representative, without first providing appropriate advance notice
       to Professional Airways Systems Specialists, and affording it an
       opportunity to bargain concerning the impact and implementation of
       such reduction in force.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request rescind the July 23, 1983, reduction in force
       at the Federal Aviation Administration, Airways Facilities Sector
       810, Albany, New York;  and reinstate Mr. Andrew Panek to his
       position as a Maintenance Mechanic WG-4749-11.
 
          (b) Notify the appropriate representative of Professional
       Airways Systems Specialists of any intended reduction in force
       affecting employees represented exclusively by Professional
       Airways Systems Specialists at the Federal Aviation
       Administration, Airways Facilities Sector 810, Albany, New York,
       and afford it an opportunity to request bargaining concerning the
       impact and implementation of such reduction in force.
 
          (c) Post at its facilities at the Federal Aviation
       Administration, Washington, D.C.; Federal Aviation Administration,
       Eastern Region, Jamaica, New York;  and Federal Aviation
       Administration, Airways Facilities Sector 810, Albany, New York,
       copies of the attached Notice on forms to be furnished by the
       Federal Labor Relations Authority.  Such forms shall be signed by
       the Administrator of the Federal Aviation Administration or his
       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.
 
          (d) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region I, 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.
 
                                       LOUIS SCALZO
                                       Administrative Law Judge
 
    Dated:  August 8, 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 SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT implement any reduction in force affecting employees
 represented exclusively by Professional Airways Systems Specialists at
 the Federal Aviation Administration, Airways Facilities Sector 810,
 Albany, New York, without first providing appropriate notice to
 Professional Airways Systems Specialists, the employees' exclusive
 representative, and affording it an opportunity to bargain concerning
 the impact and implementation of such reduction in force.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, rescind the July 23, 1983, reduction in force
 at the Federal Aviation Administration, Airways Facilities Sector 810,
 Albany, New York and reinstate Mr. Andrew Panek to his position as a
 Maintenance Mechanic WG-4749-11.
 
    WE WILL notify the appropriate representative of Professional Airways
 Systems Specialists of any intended reduction in force affecting
 employees represented exclusively by Professional Airways Systems
 Specialists at the Federal Aviation Administration Airways Facilities
 Sector 810, Albany, New York, and afford it an opportunity to request
 bargaining concerning the impact and implementation of such reduction in
 force.
                                       (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, Region I, Federal Labor Relations Authority, whose
 address is:  441 Stuart Street, 9th Floor, Boston, Massachusetts 02116,
 and whose telephone number is 617-223-0920.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ See United States Department of Transportation, Federal Aviation
 Administration, 19 FLRA No. 116 (1985);  United States Department of
 Transportation, Federal Aviation Administration, 19 FLRA No. 62 (1985);
 United States Department of Transportation, Federal Aviation
 Administration, 18 FLRA No. 8 (1985);  and Federal Aviation
 Administration, Washington, D.C., 17 FLRA No. 26 (1985).
 
 
    /2/ In agreement with the Judge and based on his rationale and
 application of the Authority's test for determining whether an award of
 backpay is appropriate under the Back Pay Act, 5 U.S.C. 5596, the
 Authority finds, contrary to the positions of the General Counsel and
 the Charging Party contained in their exceptions, that a backpay order
 is not warranted in the circumstances of this case.  See United States
 Department of Agriculture, Plant Protection and Quarantine, Animal and
 Plant Health Inspection Service, 17 FLRA No. 40 (1985).
 
 
    /3/ Since the FASTA agreement provided for notification of FASTA
 officials at the Sector level with respect to matters relating to the
 Sector Manager, and consultation concerning reductions in force, Mr.
 Curran's February 8, 1982 letter represented a repudiation of demands
 made by Mr. Johannssen in the February 2, 1982 letter to Mr. Helms.
 
 
    /4/ Mr. Schneider also testified that in late 1982 he had advised Mr.
 Booker on numerous occasions that Mr. Johannssen was the appropriate
 pe