51:0035(4)CA - - FAA, Northwest Mountain Region, Renton, WA and National Air Traffic Controllers Association - - 1995 FLRAdec CA - - v51 p35



[ v51 p35 ]
51:0035(4)CA
The decision of the Authority follows:


51 FLRA No. 4

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL AVIATION ADMINISTRATION

NORTHWEST MOUNTAIN REGION

RENTON, WASHINGTON

(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

(Charging Party/Union)

DE-CA-20484

_____

DECISION AND ORDER

August 29, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

The Administrative Law Judge issued the attached decision, finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by selecting and installing certain interior design features at the Denver International Airport's Terminal Radar Approach Control (TRACON) and Tower facilities without providing the Union notice or the opportunity to bargain over the substance, impact or implementation of the matters insofar as they constituted changes in bargaining unit employees' conditions of employment.

The General Counsel filed exceptions to the Judge's recommended remedy. The Respondent did not file an opposition to the General Counsel's exceptions.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II. Judge's Decision and Recommended Order

The facts are fully set forth in the Judge's decision and are only briefly summarized here. The Judge concluded that the Respondent violated the Statute by not providing the Union appropriate notice and an opportunity to bargain over the selection and installation of certain interior design features of the TRACON and Tower facilities. The Judge rejected the General Counsel's request for a status quo ante remedy, which would require the Respondent to remove the various design features and bargain over the selection and installation of those items. In so doing, the Judge relied on testimony of Union representative Gary Molen who, according to the Judge, "described the new building as 'very pretty, beautiful.'" Judge's Decision at 4. The Judge ordered the Respondent to bargain over the selection and installation of the design features and to do so "without regard to the present conditions." Id. at 5. As the Judge explained this remedy, "if the collective bargaining process results in an agreement on selections that are different from the existing ones, they should be installed upon request." Id.

III. Positions of the Parties

The General Counsel argues that the Judge erred by failing to apply the standard set forth in Department of Health and Human Services, Region IV, Office of Civil Rights, Atlanta, Georgia, 46 FLRA 396 (1992), to remedy the unfair labor practice. According to the General Counsel, that standard requires "that any appropriate bargaining remedy must place the parties on equal footing." Exceptions at 5. The General Counsel asserts that in order to guarantee the Union's right to bargain without regard to the present conditions at the TRACON and Tower facilities, the Authority should order the Respondent not to present before the Federal Mediation and Conciliation Service (FMCS) any proposal related to design features currently in place. The General Counsel also asks the Authority to order the Federal Service Impasses Panel (Panel) to disregard any of the Respondent's proposals related to existing design features as well as any aesthetics and economic waste arguments and to accept "any and all of NATCA's proposals" without regard to current conditions. Id. at 8. Finally, the General Counsel requests the Authority to attach strict time frames to the bargaining order to produce a negotiated agreement prior to the projected opening of the new airport.

As noted, the Respondent did not file an opposition to the General Counsel's exceptions.

IV. Analysis and Conclusions

We agree with the Judge that, to remedy the violation, the Respondent should be required to bargain, at the request of the Union, and, if requested and necessary to implement the results of any agreement reached, to replace the existing design features.(1) Essentially, this constitutes a retroactive bargaining order, a remedy that is within the Authority's broad remedial discretion. See generally National Treasury Employees Union v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc). This remedy is appropriate where a respondent's unlawful conduct has deprived the exclusive representative of an opportunity to bargain in a timely manner over negotiable conditions of employment affecting bargaining unit employees. U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 22 FLRA 758 (1986), rev'd on other grounds, 880 F.2d 1163 (10th Cir. 1989). In this case, the bargaining order recommended by the Judge will effectuate the purposes and policies of the Statute by ensuring the substitution of any design features negotiated by the parties or imposed by the Panel, thereby approximating the situation that would have existed had the Respondent fulfilled its statutory obligations.

We reject the General Counsel's request that the Authority limit the arguments the Respondent may make during the collective bargaining process, including during any mediation efforts by the FMCS. We leave it to the parties to bargain in good faith to the fullest extent consonant with law and regulation. Any assertion that either party failed to meet its duty to bargain would be appropriately raised at the compliance stage of this proceeding.

We also reject the General Counsel's request for additional modifications to the remedy. With regard to the request for the imposition of time limits on the various stages of bargaining, we note that the TRACON and Tower are now open and, therefore, that the expressed reason for the General Counsel's request no longer exists. We also note the difficulty in imposing effective time limits on collective bargaining in the Federal sector. Cf. U.S. Department of Transportation and Federal Aviation Administration, 48 FLRA 1211, 1215 (1993), petition for review denied, No. 94-1136 (D.C. Cir. Apr. 5, 1995) (negotiability disputes and impasse resolution proceedings could significantly lengthen any imposed time limits on bargaining). In addition, there is nothing in this record to indicate that the Respondent is unwilling to bargain expeditiously. With regard to the General Counsel's request that we direct the Panel to disregard the Respondent's arguments regarding aesthetic and economic waste and all of its proposals related to the design features currently in place, such direction would intrude on the Panel's discretion under section 7119(c)(5)(B)(iii) of the Statute to take whatever action is necessary and not inconsistent with the Statute to resolve impasses. See National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 415 (1990).(2)

V. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Statute, the Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, shall:

1. Cease and desist from:

(a) Unilaterally changing working conditions of unit employees in the bargaining unit represented by the National Air Traffic Controllers Association (NATCA), including the selection and installation of carpeting, carpet tile, wall finishes, and related design features at the Denver International Airport's TRACON and Tower facilities, without first notifying NATCA and affording it the opportunity to bargain to the extent consonant with law and regulation.

(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 of NATCA, bargain to the extent consonant with law and regulation concerning the selection and installation of carpeting, carpet tile, wall finishes, and related design features at the Denver International Airport's TRACON and Tower facilities, and, if requested and necessary to implement the results of any agreement reached, replace existing design features.

(b) Post at its TRACON and Tower facilities, 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 Air Traffic Division Manager, Northwest Mountain Region, 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.

(c) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional director, Denver Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change working conditions of unit employees in the bargaining unit represented by the National Air Traffic Controllers Association (NATCA), including the selection and installation of carpeting, carpet tile, wall finishes, and related design features at the Denver International Airport's TRACON and Tower facilities, without first notifying NATCA and affording it the opportunity to bargain to the extent consonant with law and regulation.

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 of NATCA, bargain to the extent consonant with law and regulation concerning the selection and installation of carpeting, carpet tile, wall finishes, and related design features at the Denver International Airport's TRACON and Tower facilities, and, if requested and necessary to implement the results of any agreement reached, replace existing design features.

___________________________
(Activity)

Date: ___________ By: __________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, and whose telephone number is: (303) 844-5224.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

FEDERAL AVIATION ADMINISTRATION, NORTHWEST MOUNTAIN REGION RENTON, WASHINGTON

Respondent

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

Charging Party

Case No. DE-CA-20484

Richard D. McCurdy
Counsel for the Respondent

Hazel E. Hanley
Counsel for the General Counsel, FLRA

Gary R. Molen
Representative of the Charging Party

Before: GARVIN LEE OLIVER
Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (5), by selecting color schemes and designs and installing carpeting, carpet tile, wall finishes, and related design features at the new Denver International Airport's Terminal Radar Approach Control (TRACON) and Tower facilities without providing the Charging Party (NATCA or Union) adequate advance notice or the opportunity to bargain over the substance, impact, or implementation of the changes affecting bargaining unit employees.

Respondent defends on the basis that it did fulfill its obligation when it notified the then local Union president of the need to provide Union input in decoration decisions.

A hearing was held in Denver, Colorado. The Respondent, Union, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. Based on the entire record,(*) including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

In late August 1989, Federal Aviation Administration (FAA) officials at the Denver Tower were advised by FAA officials in Seattle that an interior designer for the architect of the new Denver airport would be meeting with them the next day so that decorating selections could be made. FAA Denver was advised that the information was needed within a couple of days "no matter what it takes."

The designer arrived with a sample board of such things as carpet, tile, and paint, and was accompanied by an FAA project officer. The designer stated that selections would have to be made within the next day and a half.

Carl Dean, FAA Denver Tower Manager at the time, testified that when they arrived, he arranged for the release of the Union representative. Dean testified that he explained the short time frame and requested that the representative do whatever he could to get as many people involved in making a decision concerning colors in the new TRACON. Dean stated that he "wanted some input from them." Dean was somewhat hesitant about the identity of the Union representative. Based on his memory, he "thought it was Jim Brawner."

Dean testified that after his meeting with Brawner, he heard nothing from him regarding Union choices or complaints about the matter. The samples were viewed by others in the facility, including secretaries and controllers. Dean evaluated the input and called in the selections.

James W. Brawner was president of the Union's consolidated Local at the time. Brawner testified that he never met with the interior designer, FAA project officer, or Mr. Dean concerning the selection of samples or design features and never received notice that a selection had to be made in August 1989. Based on all the evidence bearing on the credibility of Mr. Brawner, as well as that surrounding the selection of design features in August 1989, as presented by the General Counsel and Respondent, I credit Mr. Brawner's testimony in this respect. There is no evidence that any other appropriate Union representative at the time received such notice.

On December 7, 1989, Gary Molen, NATCA Regional Vice President, wrote a letter to Mr. Temple Johnson, Jr., FAA Air Traffic Division Manager, Northwest Mountain Region. Mr. Molen stated that the Denver controllers felt they were being "left out of the loop in the decision making process" concerning the new airport. Mr. Molen suggested the forma-tion of a committee to deal with technical procedures. He cautioned that "[c]are must be taken when discussing personnel policies and procedures or changes in working conditions. These should be dealt with between management and the union on a local level."

By letter dated December 23, 1989, Mr. Johnson replied to Mr. Molen. Mr. Johnson stated that the Denver Manager and Denver NATCA representative had met and concurred with a plan to form a core group, designate a plans and procedures specialist, and provide periodic briefings to all personnel. Mr. Johnson did not otherwise respond to Mr. Molen's statement that working conditions should be dealt with between management and the Union on a local level.

Respondent made the final selections concerning color schemes and designs for carpeting, carpet tile, wall finishes, and related design features at the new Denver International Airport's TRACON and Tower facilities in the March/April 1990 time frame during the final design phases of the project. These had been developed by the architectural/engineering consulting firm of Howard, Needles, Tammen and Bergendoff (HNTB) which presented the design for Respondent's approval. The final selections were included in bid solicitation documents issued in July 1990.

From August of 1989 to April 1990 representatives of Respondent attended HNTB meetings concerning interior designs. Respondent did not advise the Union of these meetings or of Respondent's decisions concerning the design features, nor does Respondent contend that there was any effort to inform the Union or negotiate over decorating the new facilities other than the discussions described by Respondent's witnesses as occurring in August 1989.

On or about February 8, 1992, during an on site visit to the new Denver International Airport, the Union discovered that at some date unknown to the Union, Respondent had installed carpeting, carpet tile, wall finishes, and related design features at the TRACON and Tower facilities. (Tr. 8-9; General Counsel Exh. 1(c) & (d)). Union Regional Vice President Gary Molen described the new building as "very pretty, beautiful." (Tr. 59).

The unfair labor practice charge was filed March 23, 1992.

On March 5, 1992, Respondent's Air Traffic Division Manager, Northwest Mountain Region, formally notified NATCA Vice President Molen of the anticipated transition of Air Traffic Division activities from Stapleton International Airport to the new Denver International Airport. Negotiations between the parties took place thereafter. The record reflects that in late 1992 several proposals relating to the new TRACON and Tower facilities, including some concerning carpeting and decor, were escalated to the respective headquarters of the parties for resolution under Article 7, Section 2 of the NATCA/FAA collective bargaining agreement. The record does not reflect the disposition of these negotiations.

Conclusions

The selection and installation of interior design features, such as carpeting, tile, wall finishes, and related design features, at the FAA TRACON and Tower facilities at the new Denver International Airport, affected the working conditions of unit employees and constituted "conditions of employment" within the meaning of section 7103(a)(14) of the Statute. As the Authority stated in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Fitchburg, Massachusetts District Office, 36 FLRA 655, 668 (1990);

[T]he location in which employees perform their duties, as well as other aspects of employees' office environments, are 'matters at the very heart of the traditional meaning of 'condition of employ-ment.' Library of Congress v. FLRA, 699 F.2d 1280, 1286 (D.C. Cir., 1983). Further employees' and management's competing interests in office space 'present the sort of questions collective bargaining is intended to resolve.' National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 414 (1990).

See also Department of Health and Human Services, Region IV, Office of Civil Rights, Atlanta, Georgia, 46 FLRA 396 (1992); Internal Revenue Service, San Francisco Appeals Office, San Francisco, California, Case No. 9-CA-00173 (1991), ALJ Decision Reports, No. 97 (August 15, 1991).

Based upon the credibility resolution made above, I conclude that Respondent did not provide the Union with appropriate notice and an opportunity to bargain over the selection and installation of these interior design features and thereby violated section 7116(a)(1) and (5) of the Statute, as alleged.

The General Counsel urges as part of the remedy for the violation that, upon request of the Union, Respondent remove any and all carpeting, carpet tile, wall finishes, and other interior design features and proceed to bargain the selection and installation of such features. Respondent claims that a more appropriate remedy, in the event a violation is found, would be to utilize the existing interior for its normal economic life and provide the Union with the unilateral right to make the choices when redecoration or replacement decisions are scheduled to be made.

After viewing the new facilities for the first time, the Union representative described them as "beautiful." There-fore, I do not believe it would benefit the parties and effectuate the purposes of the Statute to afford the Union the power to ask that the the existing interior decorations be removed so that the negotiations concerning them could start from scratch. On the other hand, the "normal economic life" of the decorations, even wall finishes, would probably be several years. Therefore, in order that the opportunity to bargain not be rendered meaningless, Respondent should be required to bargain without regard to the present conditions. In other words, if the collective bargaining process results in an agreement on selections that are different from the existing ones, they should be installed upon request.

Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Federal Aviation Administration, Northwest Mountain Region, Renton, Washington shall:

1. Cease and desist from:

(a) Unilaterally implementing changes in working conditions of unit employees in the bargaining unit repre-sented by the National Air Traffic Controllers Association (NATCA), including the selection and installation of carpeting, carpet tile, wall finishes, and related design features at the Denver International Airport's TRACON and Tower facilities, without first notifying NATCA and affording it the opportunity to bargain to the extent consonant with law and regulation.

(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 Federal Service Labor-Management Relations Statute:

(a) Upon request of NATCA, bargain to the extent consonant with law and regulation concerning the selection and installation of carpeting, carpet tile, wall finishes, and related design features at the Denver International Airport's TRACON and Tower facilities without regard to the current condition of such features.

(b) Post at its TRACON and Tower facilities, 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 Air Traffic Division Manager, Northwest Mountain Region, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Denver Region, 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, November 4, 1994

______________________
GARVIN LEE OLIVER
Administrative Law Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally implement changes in working conditions of unit employees in the bargaining unit repre-sented by the National Air Traffic Controllers Association (NATCA), including the selection and installation of carpeting, carpet tile, wall finishes, and related design features at the Denver International Airport's TRACON and Tower facilities, without first notifying NATCA and affording it the opportunity to bargain to the extent consonant with law and regulation.

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 of NATCA, bargain to the extent consonant with law and regulation concerning the selection and installation of carpeting, carpet tile, wall finishes, and related design features at the Denver International Airport's TRACON and Tower facilities without regard to the current condition of such features.

____________________________
(Activity)

Date:___________ By:________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Denver Region, 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, and whose telephone number is: (303) 844-5224.




FOOTNOTES:
(If blank, the decision does not have footnotes.)


Authority's Footnotes Follow:

1. Generally, when management changes a condition of employment without fulfilling i