23:0209(28)CA - FAA and Professional Airways Systems Specialists -- 1986 FLRAdec CA



[ v23 p209 ]
23:0209(28)CA
The decision of the Authority follows:


 23 FLRA No. 28
 
 FEDERAL AVIATION ADMINISTRATION
 Respondent
 
 and
 
 PROFESSIONAL AIRWAYS SYSTEMS
 SPECIALISTS, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-30319
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority based on a
 stipulation of facts by the parties under section 2429.1(a) of the
 Authority's Rules and Regulations.  The parties have agreed that no
 material issue of fact exists.  Briefs for the Authority's consideration
 were filed by the Respondent, the General Counsel and the Charging
 Party.
 
    The General Counsel alleges in its complaint 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) in two respects:  first, by implementing changes
 in working conditions without affording the Professional Airways Systems
 Specialists, AFL-CIO (PASS or the Union) an opportunity to negotiate
 over the impact and implementation of those changes;  and, second, by
 refusing to negotiate with the Union's designated representatives
 concerning the changes.  In this regard, the General Counsel alleges
 that the Respondent committed separate violations at six of its Airway
 Facilities Sectors (AFS) and/or Air Route Traffic Control Centers
 (ARTCC) in several different cities:  Auburn, Washington;  Nashua, New
 Hampshire;  Pittsburgh, Pennsylvania;  Houston, Texas;  Seattle,
 Washington;  and Albany, New York.
 
                              II.  Background
 
    On December 31, 1981, PASS was certified as the exclusive
 representative of a nationwide unit of the Respondent's employees.  The
 unit included, but was not limited to, the Respondent's nonprofessional
 employees at its Airway Facilities operation.  This nationwide unit was
 previously represented by the Federal Aviation Science and Technological
 Association (FASTA).  On April 14, 1983, PASS was certified as the
 exclusive representative for nationwide consolidated units of the
 Respondent's professional and nonprofessional employees.
 
    The Respondent and FASTA had negotiated an agreement which became
 effective in 1977 for a two-year period and was automatically renewed by
 its terms for specified periods until its expiration by notice from
 PASS.  By letter to the Respondent's Administrator dated May 28, 1982.
 PASS' National President stated that he had received "persistent reports
 of local and regional FAA management proposals to make changes in
 conditions of employment within the unit," that "any prior bargaining
 authority given to any PASS representative other than (himself was) . .
 . revoked with respect to the national unit," and that he should be
 "notified of all proposed changes in conditions of employment of
 bargaining unit members. . . . " By letter dated May 16, 1983, PASS'
 National President again advised the Respondent's Administrator that
 notices involving changes in conditions of employment of unit employees
 should be directed to him.
 
           III.  Analysis of the Agency's Obligation to Bargain
 
    The Respondent asserts that its bargaining obligation on the changes
 in working conditions was limited to consultation by virtue of
 provisions in the FASTA agreement which, in its view, constitute a clear
 and unequivocal waiver of the Union's right under the Statute to
 negotiate over the impact and implementation of those changes in working
 conditions.  The Respondent maintains that this waiver is binding on
 PASS.  Further, the Respondent contends that, under the FASTA agreement,
 it was only required to, and did in fact, notify the local Union
 representatives concerning the proposed changes and afford such
 representatives an opportunity to consult on the changes prior to their
 implementation.  We disagree.
 
    The Authority previously considered and ruled on this issue in
 Federal Aviation Administration, Northwest Mountain Region, Seattle,
 Washington, and Federal Aviation Administration, Washington, D.C., 14
 FLRA 644 (1984), a case also involving the FAA, PASS, and the same FASTA
 agreement as involved here.  We held that the waiver of bargaining
 rights contained in the FASTA agreement involved a permissive subject of
 bargaining, which was binding during the life of the agreement, but was
 terminable by either party once the agreement expired.  We found that
 management could not insist upon the continuation of the waiver
 provision contained in the expired agreement when PASS notified
 management that it would no longer be bound by the provision, and would
 exercise its bargaining rights.  See also Department of Transportation,
 Federal Aviation Administration, Los Angeles, California, 15 FLRA 100
 (1984);  and Federal Aviation Administration, Washington, D.C., 17 FLRA
 142 (1985).
 
    The rationale set forth in the three decisions applies equally here.
 The Authority finds that, once the Union notified the Respondent that it
 elected to terminate the waiver provision of the expired agreement by
 letter dated May 28, 1982, the Respondent could no longer continue the
 practice developed under the provision so as to preclude bargaining over
 procedures and appropriate arrangements for employees adversely affected
 by the changes.  Further, based on the rationale in Department of
 Transportation, Federal Aviation Administration, San Diego, California,
 15 FLRA 407 (1984), the Authority finds that, once the Union exercised
 its statutory right to designate a new representative to receive notice
 and to bargain on the matters involved here by letters dated May 28,
 1982, and May 16, 1983, the Respondent could no longer continue the
 practice developed under the expired agreement.
 
         IV.  Changes Giving Rise to the Duty to Bargain by Agency
 
                Location
 
                    A.  Auburn, Washington (AFS, ARTCC)
 
    In May of 1982, the Respondent notified PASS' Midwest Region and
 Western Region Vice Presidents of its proposal to implement the
 "Discrete Function Concept" which would reorganize the organizational
 structure of three of its Air Route Traffic Control Centers and Airway
 Facilities Sectors, including the Auburn facilities in the Respondent's
 Northwest Mountain Region and requested comments on the proposal before
 June 25, 1982.  By letter dated June 11, 1982, PASS' Western Region Vice
 President notified the Respondent's Northwest Region Chief that the only
 person authorized to bargain for the Union was PASS' National President.
  On August 13, 1982, the Respondent's Auburn Sector Manager notified
 PASS' local representative that the "Discrete Function Concept" would be
 implemented at Auburn on October 31, 1982.  On September 29, 1982, the
 Auburn managers met with PASS' local representatives, offering to
 consult as to the facility reorganization.  By memorandum dated
 September 30, 1982, PASS' local representative informed the Auburn
 Sector Manager that PASS demanded the right to negotiate as to the
 impact and implementation of any changes in working conditions.  No such
 opportunity was afforded, and the Respondent implemented the
 reorganization on or about October 31, 1982.
 
    As a result of the Respondent's implementation of the "Discrete
 Function Concept" at its Auburn facilities, several changes occurred in
 the working conditions of its bargaining unit employees:  (1) unit
 employees who desired to take annual leave were required to notify their
 unit supervisor at least 24 hours in advance;  (2) unit employees were
 required to sign a log upon reporting to work;  (3) new basic watch
 schedules of employees in the Radar/Communications and the Radar Data
 Processing units were established;  and (4) new holiday schedule
 guidelines were established for unit employees.  Also, by memorandum
 dated October 18, 1982, unit employees were notified that the prior
 practice of excusing personnel from holiday work, by crew rather than by
 name, had also been changed.  The memorandum stated that, as of November
 1, 1982, "each unit's holiday work schedule will be equalbility (sic)
 derived and posted 21 days prior by the respective unit's supervisor
 consistent with the (FASTA) agreement."
 
         B.  Nashua, New Hampshire (AFS), and Boston Massachusetts
 
                (ARTCC)
 
    On August 31, 1982, the Respondent's Nashua AFS/ARTCC Sector Manager
 informed PASS' local representative of a proposed reorganization
 involving the establishment of new watch schedules and position
 description changes for Radar GS-12 and Radar Microwave Link (RML) --
 TRACON GS-12 Electronic Technician positions.  By letter to the
 Respondent's Nashua AFS/ARTCC Assistant Manager dated September 1, 1982,
 PASS' local representative requested negotiations on the proposed
 reorganization announced on August 31, and designated the Union's
 National President as its negotiator.  On September 19, 1982, the
 National President advised the Respondent's Nashua AFS/ARTCC Sector
 Manager of the Union's desire to negotiate over the proposed
 reorganization.  On October 1, 1982, the Respondent's Nashua AFS/ARTCC
 Acting Sector Manager declined to negotiate, but offered instead to
 consult over the proposed new watch schedules and position descriptions.
 
    The change in position descriptions was implemented on October 26,
 1982.  Under the new position descriptions, some technicians'
 responsibilities with regard to the Radar Microwave Link System were
 reduced from primary to secondary.  The new position descriptions
 contained a new provision requiring technicians to climb towers of
 various heights to service aviation equipment.  At the Nashua facility,
 there are two towers, each about 150 feet in height.  None of the
 affected bargaining unit employees had been previously required to climb
 towers and none has had training for performing such tasks.  As of the
 date of the parties' stipulation, the Respondent had not yet required
 these employees to perform this new responsibility.
 
    On January 5, 1983, the Respondent's Nashua AFS Manager notified
 PASS' local representative orally that implementation of the new watch
 schedules would take effect on April 17, 1983.  On February 7 and 24,
 1983, PASS' National President reiterated the Union's demand for
 negotiations over the proposed change in watch schedules.  The
 Respondent again declined to negotiate, and implemented the new watch
 schedule on May 1, 1983.  Prior to implementation of the new watch
 schedules, the bargaining unit employees all worked on the same
 24-hour-per-day, five-crew-rotation watch schedule.  Under the new watch
 schedules, employees now work on either a five-crew or four-crew
 rotation schedule for 16 hours each day.
 
          C.  Pittsburgh, Pennsylvania (AFS), Greater Pittsburgh
 
                International Airport
 
    On March 9, 1982, the Respondent's Pittsburgh AFS Manager notified
 unit employees of a proposed reorganization of the Pittsburgh facility.
 The proposed reorganization would replace the existing five-crew
 organization with a separate NAVAIDS Unit and a three-crew
 Radar/ARTS/Communications group.  The NAVAIDS Unit would have a unit
 supervisor and the Radar/ARTS/Communications technicians would work a
 24-hour shift with supervision by three operation supervisors who would
 rotate 16 hours a day.  On the same date, PASS' local representative
 spoke to the Respondent's Pittsburgh AFS Manager and indicated that the
 Union had some concerns about the reorganization.
 
    On August 10, 1982, the Respondent's Airway Facilities Division
 Manager, Eastern Region, issued a memorandum to all Sector personnel
 explaining the proposed reorganization and establishing an
 implementation date of September 7, 1982.  On August 15 and September 7,
 1982, PASS' National President contacted the Respondent's Airway
 Facilities Division Manager, Eastern Region, and requested negotiations
 regarding the proposed reorganization.  The Division Manager declined to
 negotiate, and the reorganization was implemented on September 7, 1982.
 
    As a result of the reorganization, unit employees assigned to the
 mid-shift (2330-0730 hours) were left without an on-duty supervisor.  As
 explained in the Respondent's memorandum, these employees became
 "responsible for coordinating and carrying out overall Airway Facilities
 operations at the greater Pitt Hub during the mid-shift exactly as the
 Operations Supervisor does during the day and evening shift. . . . "
 (Emphasis supplied).  This responsibility included "a number of other
 coordinating and consulting type functions that extended beyond their
 parochial technical skill area insofar as is reasonable to expect based
 on formalization training, experience and certification requirements."
 Several of the new "coordinating and consulting type functions"
 included:  (1) consulting with air traffic control officials and giving
 "best counsel and judgment" concerning overall Airway Facility
 operations and facilities;  (2) notifying the appropriate first-level
 supervisor, the assistant manager, or manager, of urgent operational
 matters, such as accidents or unexpected absences of duty personnel;
 (3) assuring that appropriate entries are made in the watch log;  and
 (4) not leaving duty stations unless properly relieved.
 
               D.  Houston, Texas (AFS), and Houston (ARTCC)
 
    On July 19, 1982, the Respondent's Houston AFS/ARTCC Manager (the
 Manager) held discussions with PASS' local representative regarding a
 proposed reorganization at the Houston facilities, including proposed
 changes in crew alignments and employee watch schedules.  During these
 conversations, the Manager informed PASS' local representative that the
 planned reorganization would entail a new seven-crew watch schedule.  In
 conjunction with these discussions, PASS' local representative submitted
 specific comments and views for consideration by the Manager.  On
 October 18, 1982, PASS' local representative submitted three watch
 schedules for consideration by the Manager.  On December 14, 1982, the
 Manager informed PASS' local representative that he rejected PASS'
 proposed schedules.  On December 23, 1982, the Manager notified PASS'
 local representative that the Union representative's views had been
 considered in the development of the new watch schedules, but that an
 alternative schedule had been adopted, which would be posted on December
 24, 1982, and implemented following a 90-day posting period.
 
    On January 13 and 17, 1983, PASS's National President contacted the
 Manager and requested an opportunity to bargain over the changes which
 would result from the reorganization.  The Manager did not agree to
 negotiate and the reorganization was implemented on March 27, 1983.
 
    Prior to the seven-crew reorganization, work crew realignments, and
 watch schedule changes, the Houston facilities' unit employees were
 assigned to one of five work crews, with each work crew having the same
 duties and responsibilities.  Under the five-crew arrangement, unit
 employees worked under a rotating watch schedule.  Under the new
 seven-crew concept, unit employees were assigned either to one of seven
 work "crews" or to one of five work "units." Employees assigned to the
 work "units" have primary responsibility for the repair and maintenance
 of the Houston facilities' critical function aviation equipment.
 Employees assigned to the work "crews" have secondary responsibility
 over critical function equipment.  If a work "crew" employee discovers a
 malfunction in a piece of aviation equipment, he must call in an
 employee from a work "unit" to do the repair work.  The resulting repair
 work is done chiefly by the work "unit," with assistance from the work
 "crew." Formerly, there was no distinction among employees as to the
 servicing and repair of equipment.  There are no provisions for the
 rotation of unit employees between the work "crews" and work "units."
 Also, employees assigned to "crews" have lesser technical training
 requirements, that is, they are no longer required to attend the FAA
 Academy in Oklahoma for periodic training.  In addition, as a result of
 the work crew realignments, unit employees' watch schedules changed to a
 seven-crew rotating schedule.
 
                       E.  Seattle, Washington (AFS)
 
    On October 22, 1982, the Respondent's Supervisor of the RAD/ARTS
 Communication Unit at the Seattle facility met with Electronic
 Technicians to discuss the transfer of Maintenance Mechanic duties to
 Electronic Technicians.  PASS' local representative attended this
 meeting.  On October 26, 1982, a meeting of managers and Maintenance
 Mechanics was held to develop recommendations on the distribution of
 Maintenance Mechanic duties.  A PASS local representative also attended
 this meeting.  The Respondent implemented the transfer of certain
 Maintenance Mechanic job tasks to Electronic Technicians in October and
 November of 1982.
 
    The transferred Maintenance Mechanic tasks involved preventive
 maintenance checks on mechanical equipment.  Preventive maintenance
 checks, depending on the type of equipment, were performed monthly,
 every six weeks, or biannually.  In addition, the Seattel AFS Electronic
 Technicians became responsible for updating the Respondent's Handbooks
 and Preventive maintenance charts.  Prior to October of 1982, the
 Maintenance Mechanics had primary responsibility for performing monthly
 preventive maintenance checks on Seattle AFS equipment;  Electronic
 Technicians were sometimes required to perform these monthly checks.
 
        F.  Albany, New York, and Albany Air Traffic Control Tower
 
                (AFS)
 
    On September 21, 1982, the Respondent's Chief of the NAVCOM Unit at
 its Albany AFS posted proposed watch schedules for certain bargaining
 unit employees and notified PASS' alternate local representative of the
 proposed changes.  Those changes would reduce the existing watch
 schedule from a four-man rotation to a three-man rotation.  Upon
 receiving notification of the proposed changes, PASS' alternate local
 representative asked the Respondent's NAVCOM Chief whether two
 developmental unit employees would be added to the proposed three-man
 watch schedules.  The NAVCOM Chief responded that the two developmental
 unit employees would be placed on an administrative work week schedule
 (for example, 8:00 a.m. to 4:30 p.m.) and would not be added to the
 proposed three-man watch schedule because they were not yet fully
 trained.
 
    By memorandum to the Respondent's Albany AFS Manager dated November
 22, 1982, PASS' local representative requested bargaining over the
 proposed new watch schedules.  The Respondent's Manager declined to
 negotiate.  Subsequently, PASS' National President contacted the
 Respondent's Albany Assistant Sector Manager and requested bargaining;
 the latter also declined to negotiate.  The new three-man watch schedule
 was implemented on January 1, 1983.
 
          V.  Conclusion as to the Duty to Bargain at the Agency
 
                Locations
 
    The parties stipulated that the changes discussed above in Part IV,
 as to all of the agency's locations, were implemented by the Respondent
 without providing advance notice to the National President of the Union,
 its designated representative, or affording the Union an opportunity to
 negotiate over the impact and implementation of the changes.  The
 Respondent's sole defense is that its actions were in accord with the
 provisions of the FASTA agreement.  Since the waiver of bargaining
 rights contained in the expired FASTA agreement was no longer binding on
 PASS and the Respondent, we find that the Respondent's failure to notify
 the National President, and afford PASS an opportunity to negotiate
 about procedures for implementing the changes at the agency's facilities
 listed in Part IV, and appropriate arrangements for unit employees
 adversely affected by the changes prior to their implementation,
 constitutes a violation of section 7116(a)(1) and (5) of the Statute.
 See also United States Department of Transportation, Federal Aviation
 Administration, 18 FLRA No. 8 (1985);  United States Department of
 Transportation, Federal Aviation Administration, 19 FLRA No. 62 (1985).
 /*/
 
                              VI.  The Remedy
 
    The General Counsel and PASS request a status quo ante order to
 remedy the unfair labor practices by the Respondent.  In our view, such
 a measure is not warranted here.  We have balanced the nature and
 circumstances of the violation against the degree of disruption in
 government operations that would be caused by such a remedy, and taken
 into consideration the various factors set forth in Federal Correctional
 Institution, 8 FLRA 604 (1982), in making this determination.  We also
 note that PASS and the Respondent acknowledge that the changes
 instituted by the Respondent related to the FAA's national plan to
 reorganize personnel, and to modernize the nation's air traffic control
 system over a period of twenty years.  In our view, an order to rescind
 the changes involved in this case, and to restore all conditions of
 employment which were in effect prior to such reorganization, would
 result in substantial disruption of the Respondent's operations and
 likely interfere with the Respondent's efforts to improve the national
 air traffic control system.  We find it sufficient to effectuate the
 purposes and policies of the Statute to order the Respondent to bargain,
 upon request, about the procedures and appropriate arrangements for unit
 employees adversely affected by the changes involved here.  See, for
 example, Department of Transportation, Federal Aviation Administration,
 19 FLRA No. 61 (1985).
 
    As we stated recently in issuing a prospective bargaining order and
 rejecting a union's contention that a status quo ante remedy should be
 granted under circumstances where the potential disruption to the
 agency's operations was substantial:
 
          A prospective bargaining order is neither inadequate nor
       inherently restrictive of the parties' right to address the
       effects on unit employees of changes already made. . . .  Rather,
       it allows the parties the flexibility to bargain freely with
       regard to how past actions may have affected any given employee.
       Bargaining which explores such effects may itself reveal
       situations that call for retroactive remedial action, about which
       the parties are free to agree.
 
    Environmental Protection Agency, 21 FLRA No. 98 (1986), slip op. at
 3-4.
 
    With regard to the General Counsel's and PASS' requests that the
 remedy be nationwide in scope, the Authority finds that a posting of the
 remedial unfair labor practice notice at the respective facilities where
 the violations occurred will effectuate the purposes and policies of the
 Statute.  This is consistent with our findings in similar cases
 involving FAA's unlawful insistence on a waiver of PASS' statutory
 rights.  See Federal Aviation Administration, Northwest Mountain Region;
  Department of Transportation, Federal Aviation Administration, Los
 Angeles, California;  Federal Aviation Administration, Washington, D.C.;
 United States Department of Transportation, Federal Aviation
 Administration, 18 FLRA No. 8 (1985);  Department of Transportation,
 Federal Aviation Administration, 19 FLRA No. 61 (1985);  and United
 States Department of Transportation, Federal Aviation Administration, 19
 FLRA No. 116 (1985).  The unlawful conduct in this case occurred before
 the issuance of the Authority's decision on the central issue in Federal
 Aviation Administration, Northwest Mountain Region.  Since there is no
 indication that the FAA has refused to abide by the Authority's decision
 in that case or in the other related cases, or that it will continue to
 engage in such unlawful conduct in the future, the Authority finds no
 basis for ordering a different posting requirement than that ordered
 below.
 
                                   ORDER
 
    Under 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 orders that the
 Federal Aviation Administration, Washington, D.C., must do the
 following:
 
    1.  Cease and desist from:
 
    (a) Any further implementation of the reorganizations at the Airway
 Facilities Sector and Air Route Traffic Control Center in Auburn,
 Washington, the Airway Facilities Sector in Nashua, New Hampshire, and
 the Air Route Traffic Control Center in Boston, Massachusetts, the
 Airway Facilities Sector in Pittsburgh, Pennsylvania, and the Airway
 Facilities Sector and Air Route Traffic Control Center in Houston,
 Texas;  the transfer of Maintenance Mechanic Duties to Electronic
 Technicians at the Airway Facilities Sector in Seattle, Washington;  and
 the change in watch schedules at the NAVCOM Unit Airway Facilities
 Sector in Albany, New York;  without first notifying the Professional
 Airways Systems Specialists, AFL-CIO, the exclusive representative of
 its employees, and affording it an opportunity to negotiate on the
 procedures to be observed in any further implementation of the
 reorganizations, transfers of job duties, and changes in watch
 schedules, and on appropriate arrangements for employees adversely
 affected by such changes.
 
    (b) Failing to give notice of any planned reorganizations, transfers
 of job duties, or changes in watch schedules to the designated
 representatives of the Professional Airways Systems Specialists,
 AFL-CIO, the exclusive representative of its employees, for the purposes
 of collective bargaining, to the extent consonant with law and
 regulation.
 
    (c) 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 by the Professional Airways Systems Specialists,
 AFL-CIO, the exclusive representative of its employees, and to the
 extent consonant with law and regulation, bargain over the procedures to
 be observed in implementing the reorganization at the Airway Facilities
 Sector and Air Route Traffic Control Center in Auburn, Washington, the
 Airway Facilities Sector in Nashua, New Hampshire, the Air Route Traffic
 Control Center in Boston, Massachusetts, the Airway Facilities Sector in
 Pittsburgh, Pennsylvania, and the Airway Facilities Sector and Air Route
 Traffic Control Center in Houston, Texas;  the transfer of Maintenance
 Mechanic duties to Electronic Technicians at the Airway Facilities
 Sector in Seattle, Washington;  and the change in watch schedules at the
 Navcom Unit Airway Facilities Sector in Albany, New York, and on
 appropriate arrangements for employees advers