23:0209(28)CA - FAA and Professional Airways Systems Specialists -- 1986 FLRAdec CA
[ v23 p209 ]
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 adversely affected by such changes. (b) Post at its facilities 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, the Airway Facilities Sector and Air Route Traffic Control Center in Houston, Texas, the Airway Facilities Sector in Seattle, Washington, and the NAVCOM Unit Airway Facilities Sector in 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 an appropriate official of each respective facility, and shall be posted and maintained for 60 consecutive days after posting, 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. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. Issued, Washington, D.C., August 15, 1986.