53:0312(42)CA - - Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, KY and National Air Traffic Controllers Association, Local SDF - - 1997 FLRAdec CA - - v53 p312



[ v53 p312 ]
53:0312(42)CA
The decision of the Authority follows:


53 FLRA No. 42

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

STANDIFORD AIR TRAFFIC CONTROL TOWER

LOUISVILLE, KENTUCKY

(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

MEBA/NMU, (AFL-CIO)

LOCAL SDF

(Charging Party/Union)

CH-CA-50496

CH-CA-50497

_____

DECISION AND ORDER

August 29, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent did not file an opposition to the General Counsel's exceptions.

The consolidated complaint alleges, as relevant here, that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Managment Relations Statute (the Statute) by refusing to sign and implement an agreement with the Union concerning the design and layout of a planned new facility at the Standiford Air Traffic Control Tower, Louisville, Kentucky (Tower). The Judge recommended dismissal of the complaint.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions only to the extent consistent herewith. For the reasons expressed below, we conclude that the Respondent violated the Statute.

II. Background and Judge's Decision

This case concerns whether a substantive agreement on the design and layout of a new facility resulted from "collective bargaining" within the meaning of section 7103(a)(12) of the Statute.(1) The Judge found that the agreement did not result from collective bargaining, and the General Counsel takes exception to that finding. The facts are fully set forth in the Judge's decision and are summarized below.

The National Air Traffic Controllers Association (NATCA) represents a nationwide unit of Federal Aviation Administration (FAA) employees, including the employees assigned to the Tower.

A. Events before April 1994

After the FAA authorized construction of a new facility at the Tower, the Union President sought on several occasions to negotiate with the Tower's Air Traffic Manager (the Manager) about the design and layout of the facility, including the establishment of a multipurpose room at the facility. The Manager declined to negotiate on the basis that he did not have the authority to enter into an agreement with the Union on this matter.

The Union President filed an unfair labor practice (ULP) charge with the FLRA's Atlanta Region concerning the Respondent's alleged refusal to negotiate. Subsequently, the Union President received a letter from the FAA on the subject of the pending ULP charge, stating that the Manager was prepared to negotiate with the Union concerning the new facility. However, when the Union President approached the Manager in another attempt to begin negotiations, the Manager again told the Union President that he did not have the authority to negotiate.

Thereafter, the Manager proposed to the Union President the formation of a planning committee, consisting of two unit members and two management representatives, to take over all planning for the facility. Under the Manager's proposal, the committee "would have the authority to make decisions on all matters concerning the new facility . . . ." Judge's Decision at 5. The Union responded that, due to the pending ULP charge, it was inappropriate for anyone other than the Manager and the Union President to handle the issues.

In January 1994, the FLRA's Atlanta Regional Director issued a complaint on the ULP charge, with a hearing scheduled for April 1994. In March 1994, after having begun attending planning sessions a month earlier, the Union President asked that the Manager either begin negotiations as management's authorized representative or provide the name of someone who had the authority to negotiate. The FAA assured the Union President that the Manager was ready to meet with him and "resolve the issues in a partnership environment." Id. at 6.

B. Events during and after April 1994

On April 10, 1994, the Union withdrew its ULP charge based on the FAA's assurances that the Manager was ready to meet with the Union President and resolve the issues in a partnership environment and "on the condition that FAA was willing to negotiate over the new facility and send an authorized representative to the bargaining table." Id.

Subsequently, on numerous occasions over an 8-month period, the Union President met with the Manager and the other participants at the sessions to discuss the facility's design and layout.(2) At these sessions, the Union President submitted proposals for the Union. When the subject of the multipurpose room arose, the Manager supported the inclusion of a multipurpose room in the plans.

On January 18, 1995, the Union President met with the Manager and the other participants at the sessions to discuss the plans. At management's request, the Union President drafted a blueprint that included the multipurpose room. The following day, the participants agreed on that blueprint.

On February 8, 1995, the Union President requested the Manager to execute a Memorandum of Understanding (MOU) incorporating the parties' agreement on the layout and design of the facility. The Manager refused to sign the MOU because "the size of the facility was being questioned by FAA Headquarters" and "he did not have authority to commit FAA to a specific building size through any local agreement." Id. at 8-9.

After the Manager refused to sign the MOU, and on learning that the FAA planned to eliminate the multipurpose room for budgetary reasons, the Union filed the ULP charges that led to the consolidated complaint.

C. Judge's Decision

The Judge recommended dismissal of the consolidated complaint. He determined that the Respondent did not violate the Statute when it refused to sign and implement the result of the planning sessions.(3) He found that the sessions "were not negotiations in the collective bargaining sense and that no agreement was reached, in the collective bargaining sense." Id. at 13. According to the Judge, "there was a fundamental confusion and disconnect" because the Manager

thought he was engaging [the Union] in more meaningful and cooperative partnership discussions aimed at reaching a plan agreeable to all participants that could then be submitted to FAA headquarters for approval. [The Union President] apparently thought these planning sessions were converted to negotiations and that any resulting agreement would be binding on both NATCA and FAA.

Id. at 14. The Judge concluded that

there was no meeting of the minds with respect to the fundamental nature of the planning sessions and their result and, thus, there was no negotiated agreement as to the layout of the new [facility], in the collective bargaining sense. Therefore[,] there is no agreement with respect to the layout of the new facility that FAA was obligated to sign or implement . . . .

Id. The Judge stated that if he had found that "there had been a meeting of the minds and a negotiated agreement as to the layout of the new facility had been reached," then he would have found that the Respondent violated the Statute when it refused to sign and abide by the agreement. Id. at n.6.

The Judge also rejected the General Counsel's contention that the Respondent violated the Statute by failing to send a fully authorized representative to the bargaining table to negotiate about the new facility. The Judge found that the Manager "had full authority to bargain about the new layout and planning of the new facility." Id. at 15.(4)

III. General Counsel's Exceptions

The General Counsel contends that the Judge's conclusion--that the parties' agreement to include a multipurpose room at the facility was not an agreement in the "collective bargaining sense"--has no basis in fact or law and is inconsistent with his own findings. Exceptions at 8. According to the General Counsel, the record demonstrates that the agreement reached by the parties was arrived at through "collective bargaining," as defined in section 7103(a)(12) of the Statute.

In this regard, the General Counsel argues that the Judge erred in finding that the nature of the discussions after April 1994 did not differ from the nature of the earlier discussions. According to the General Counsel, there were the following "dramatic" changes: (1) a complaint had issued from the Atlanta Region and "litigation loomed" (id. at 14) over the Manager's refusal to bargain with the Union President; (2) in settlement of the complaint, management agreed that the Manager would meet with the Union President and resolve the matter; and (3) in view of the FAA's willingness to negotiate and resolve this matter, the Union withdrew the ULP charge and spent the next 8 months working closely with the Respondent on the design and layout of the facility.

Additionally, the General Counsel contends that the Judge erred by improperly taking into account the fact that the agreement "was reached in a labor-management partnership environment[.]" Id. at 12. The General Counsel also asserts that the Respondent never told the Union President that any agreements reached during the sessions were subject to higher-level approval. Therefore, according to the General Counsel, it was reasonable for the Union President to assume that the parties were negotiating and that, as the Judge found, the Manager had authority to resolve the issue.

The General Counsel requests that the Authority order the Respondent to: (1) sign the MOU and implement and abide by its terms, including the provision for a multipurpose room at the new facility; and (2) post an appropriate notice signed by the FAA Administrator.

IV. Analysis and Conclusions

A. The Respondent Committed an Unfair Labor Practice By Refusing to Sign and Implement the MOU

Section 7114(a)(4) of the Statute requires agencies and exclusive representatives, "through appropriate representatives, [to] meet and negotiate in good faith for the purpose of arriving at a collective bargaining agreement." Section 7103(a)(8) defines "collective bargaining agreement" as "an agreement entered into as a result of collective bargaining . . . ." "Collective bargaining" is defined in section 7103(a)(12), as set forth above at note 1.

Under section 7114(b), the duty of an agency and an exclusive representative includes the obligation to negotiate "with a sincere resolve to reach a collective bargaining agreement[.]" If an agreement is reached, the parties are obligated, on the request of any party to the negotiations, to execute a written document embodying the agreed terms. U.S. Department of the Treasury, Bureau of Engraving and Printing and International Plate Printers, Die Stampers and Engravers Union, Washington Plate Printers Union, Local 2, 44 FLRA 926, 938 (1992); U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 44 FLRA 205, 206 (1992); Internal Revenue Service, Philadelphia District Office, 22 FLRA 245, 255 (1986)). An agreement, for purposes of section 7114(b)(5) of the Statute, is one in which authorized representatives of the parties come to a meeting of the minds on the terms over which they have been bargaining. International Organization of Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555, 560 (1990). In determining whether a party has fulfilled its bargaining obligation, the Authority considers the totality of the circumstances in a given case. E.g., Army and Air Force Exchange Service, 52 FLRA 290, 304 (1996); U.S. Department of the Air Force Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 531 (1990).(5)

In this case, the sole issue in dispute is whether the substantive agreement on the design and layout of the new facility resulted from "collective bargaining" within the meaning of section 7103(a)(12) of the Statute.(6) For the following reasons, we conclude that it did.

The record demonstrates, and it is undisputed, that: (1) the complaint issued in January 1994, shortly before the scheduled hearing in April 1994, alleging that the Respondent was refusing to negotiate with the Union on the design and layout of the facility; (2) management assured the Union President in April 1994 that the Manager was ready to meet with him and resolve the issues concerning the facility; (3) the Union's agreement in April 1994 to withdraw the complaint was based on the FAA's assurances that the Manager would meet with the Union President and resolve the issues; (4) the Respondent was aware that this was the reason for the withdrawal of the complaint; and (5) the Union President spent the next 8 months working closely with the Respondent on the design and layout of the facility and presenting proposals on behalf of the Union.

These circumstances demonstrate that, whatever the nature of the discussions was prior to April 1994, the discussions from April 1994 through January 1995 involved substantial joint involvement of the Union President and representatives of the Respondent in an attempt to reach agreement on the design and layout of the facility. Over the 8-month period, there were five meetings at the Regional Airport Authority office conference room (Tr. 54-55, 107-08). The meetings involved discussions about the exterior and interior of the facility (Tr. 55-56; 108). The Union President was "quite a bit more" involved than in the meetings before April 1994 (Tr. 56). The Union President did not discuss ground rules for negotiations because the Union was "trying to work within the partnership environment." Id.

In attempting to resolve issues through partnership, the Union President testified that such an approach did not mean "ignor[ing] the [S]tatute." Tr. 122. According to the Union President, he and the Manager "were just trying to figure out a better way to do business than to fight each other." Tr. 123. Proposals were presented by "both sides" (Tr. 57); the plans that were drafted during these sessions were partially based on Union proposals (Tr. 60) and included a multi-purpose room (Tr. 66). Agreement was reached at the last session, and employees were told about the agreement, including the multi-purpose room, by the Union and management (Tr. 70-71).

The fact that the sessions were conducted in a partnership atmosphere, as opposed to "traditional" collective bargaining, does not preclude a conclusion that the sessions constituted collective bargaining within the meaning of the Statute. The definition of collective bargaining set forth in section 7103(a)(12) does not prescribe any particular method in which collective bargaining must occur. It is well-recognized that collective bargaining may occur in a variety of ways, including the use of collaborative or partnership methods. See, e.g., E.O. 12871; Walton et al., Strategic Negotiations (1994) at 31-33; Bluestone and Bluestone, Negotiating the Future (1992) at 155-64.(7)

Moreover, the Manager never informed the Union President during this period that any agreement reached during the sessions was merely tentative. This fact supports the conclusion that the agreement reached was a binding one, subject only to approval by the agency head under section 7114(c)(1) of the Statute. See National Council of Social Security Administration Field Operations Locals - Council 220, American Federation of Government Employees, AFL-CIO, 21 FLRA 319, 320, 331-32 (1986) (SSA) (where union negotiator possessed at least apparent authority to bind the union, and the union failed to prove that the agency had prior knowledge that any agreement reached by the negotiator was subject to approval of higher-level union official, the union was required to sign a written memorandum of understanding embodying the agreed-upon terms).

Upon consideration of the totality of the circumstances, and applying an objective standard to determine whether a contract was formed, we conclude that, from April 1994 through January 1995, the parties were engaged in collective bargaining and reached a collective bargaining agreement within the meaning of the Statute.(8) Noting the Judge's undisputed finding that the Manager "had full authority to bargain about the new layout and planning" of the facility (Judge's Decision at 15) and the fact that there is no dispute either as to the substance of the terms that resulted from the sessions or as to the Respondent's refusal to sign the MOU, we also conclude that the Respondent committed an unfair labor practice by refusing to sign and implement the MOU. See Judge's Decision at 14 note 6 (stating that if the Judge had found that the parties had reached a negotiated agreement, he would have concluded that the Respondent violated section 7116(a)(1), (5), and (8) when it refused to sign and abide by the agreement).

In reaching these conclusions, we encourage parties to establish a common understanding at the outset of their discussions as to what they intend such discussions to constitute. Clarity about ground rules, such as whether the expected product of the discussions is a recommendation or an agreement, may assist parties in avoiding disputes and the unnecessary expenditure of resources on litigation.

B. Remedy

Where, as here, a respondent has committed an unfair labor practice by failing to execute an agreement, the Authority typically directs the respondent to implement the agreement. E.g., Veterans Administration Outpatient Clinic, Los Angeles, California, 22 FLRA 399, 400 (1986) (implement the agreement consonant with laws and regulations governing the matters that are the subject of the agreement); SSA, 21 FLRA at 322 (sign the agreement upon request of the charging party); Long Beach Naval Shipyard, Long Beach, California and FEMTC, AFL-CIO, 7 FLRA 102, 103 (1981) (take action in conformity with agreement). Consistent with this precedent, we order the Respondent to implement the agreement.

Although the passage of time may have created circumstances which would affect implementation, they have not been brought to the Authority's attention. First, as the Respondent did not file an opposition to the General Counsel's exceptions, it did not respond to the remedy sought by the General Counsel or raise any concerns about implementing such a remedy at this time. Second, the record does not establish the current status of the new facility at the Tower. In these circumstances, rejection of the requested remedy is not warranted. Cf. Bureau of Indian Affairs, Uintah & Ouray Area Office, Ft. Duchesne, Utah, 52 FLRA 629, 642 (1996) (Chair Segal dissenting as to other matters) (where the General Counsel's requested remedy was rendered moot, the Authority concluded that it would not effectuate the purposes and policies of the Statute to grant the requested remedy); Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 51 FLRA 35, 37 (1995) (FAA, Northwest Mountain Region) (General Counsel requested the imposition of time limits on bargaining over design features of airport facilities so that an agreement could be reached before the projected opening of a new airport; the Authority denied the request because the record showed that the new airport had opened and, therefore, the expressed reason for the request no longer existed); Bureau of Engraving and Printing, Washington, D.C., 44 FLRA 575, 587 (1992) (in view of the impracticality and disruption to on-going construction that would be caused by requiring the respondent to return to earlier parking arrangements, the Authority concluded that a status quo ante remedy was not appropriate).

If issues arise concerning the effect of the passage of time on the remedy, such issues may appropriately be considered during compliance proceedings. Cf. FAA, Northwest Mountain Region, 51 FLRA at 37 (any assertion that either party failed to meet its duty to bargain would be appropriately raised at the compliance stage of the proceeding); U.S. Geological Survey and Caribbean District Office, San Juan, Puerto Rico, 50 FLRA 548, 552 (1995) (considerations affecting reinstatement of discharged employees and computation of their backpay are matters for consideration during compliance proceedings).

Finally, we note that, as part of its remedial orders, the Authority typically directs the posting of a notice signed by the highest official of the activity responsible for the violation. E.g., U.S. Department of Veterans Affairs, Washington, D.C., 48 FLRA 1400, 1402 (1994). In its exceptions, the General Counsel requests that the notice be signed by the FAA Administrator, whereas in its post-hearing brief to the Judge, the General Counsel requested that the notice be signed by the Tower's Air Traffic Manager. As no reason to depart from Authority's typical practice has been alleged, it is appropriate that the notice be signed by the Tower's Air Traffic Manager as the highest official of the activity responsible for the violation. Accordingly, consistent with Authority precedent, we order the Manager to sign the notice.

V. Order

Pursuant to section 2423.29 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky, shall:

1. Cease and desist from:

(a) Failing and refusing to implement the agreement with the National Air Traffic Controllers Association, MEBA/NMU, (AFL-CIO), Local SDF, the exclusive representative of bargaining unit employees, concerning the design and layout of the planned new facility at the Standiford Air Traffic Control Tower, Louisville, Kentucky, consonant with laws and regulations governing such matters.

(b) In any like or related manner, interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Implement the agreement reached with the National Air Traffic Controllers Association, MEBA/NMU, (AFL-CIO), Local SDF, the exclusive representative of bargaining unit employees, concerning the design and layout of the planned new facility at the Standiford Air Traffic Control Tower, Louisville, Kentucky, consonant with laws and regulations governing such matters.

(b) Post at its 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 Manager, Standiford Air Traffic Control Tower, Louisville, Kentucky, 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 of the Chicago Region, Federal Labor Relations Authority, in writing, within 30 days of the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to implement the agreement with the National Air Traffic Controllers Association, MEBA/NMU, (AFL-CIO), Local SDF, the exclusive representative of bargaining unit employees, concerning the design and layout of the planned new facility at the Standiford Air Traffic Control Tower, Louisville, Kentucky, consonant with laws and regulations governing such matters.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL implement the agreement reached with the National Air Traffic Controllers Association, MEBA/NMU, (AFL-CIO), Local SDF, the exclusive representative of bargaining unit employees, concerning the design and layout of the planned new facility at the Standiford Air Traffic Control Tower, Louisville, Kentucky, consonant with laws and regulations governing such matters.

_________________________________

(Agency)

Dated:______________ By: __________________________________

(Signature) (Title)

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

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Chicago Regional Office, whose address is: 55 West Monroe, Suite 1150, Chicago, IL. 60603-9729, and whose telephone number is: (312) 353-6306.

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001



U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION, STANDIFORD AIR TRAFFIC CONTROL TOWER, LOUISVILLE, KENTUCKY

Respondent

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/NMU, (AFL-CIO)

LOCAL SDF

Charging Party

Case Nos. CH-CA-50496

CH-CA-50497

Charles Oxford, Esq.
For the Respondent

Gary J. Liebermann, Esq.
For the General Counsel of the FLRA

Before: SAMUEL A. CHAITOVITZ
Chief Administrative Law judge

DECISION

Statement of the Case

This case arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (Statute), and the Rules and Regulations of the Federal Labor Relations Authority (FLRA or Authority), 5 C.F.R. § 2411, et seq.

Based upon unfair labor practice charges filed by National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO (NATCA), Local SDF (NATCA Local SDF or Union), against U.S. Department of Transportation, Federal Aviation Administration, Standiford Air Traffic Control Tower, Louisville, Kentucky (FAA or Respondent), a Complaint and Notice of Hearing was issued on behalf of the General Counsel (GC) of the FLRA by the Regional Director for the Chicago Region of the FLRA alleging that Respondent violated § 7116(a)(1),(5) and (8) of the Statute. Respondent filed an answer denying the substantive allegations of the Complaint.

A hearing was held in Louisville, Kentucky. All parties were afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. The GC of the FLRA and the FAA filed briefs, which have been fully considered.

Based upon the entire record(1), including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

A. Background.

NATCA is the certified exclusive representative of a unit of employees appropriate for collective bargaining at Respondent. NATCA represents approximately 45 air traffic control specialists at Respondent's Standiford Air Traffic Control Tower (Standiford Tower or Standiford facility) as part of a nationwide bargaining unit. NATCA and FAA are parties to a nationwide collective bargaining agreement (CBA).

The Standiford facility is located in the FAA's Southern Region and is a terminal radar approach control whose mission is the expeditious flow of air traffic, and to provide air traffic service to the users of the air space. The current Standiford Tower was constructed in the late 1960's, and is approximately 7500 square feet. The current facility consists of an operations area, and a tower, that includes approxi-mately five or six staff offices, management offices, a union office, a break room, and a training room that is approximately 110 square feet. The current Standiford facility does not have a conference room, and staff meetings are generally held in the training room or off site at the Regional Airport Authority, approximately a half mile away.

Airways Facility, a component of the FAA that maintains equipment for air traffic at the Standiford facility, is located in a temporary office near the facility. Airways Facility employs approximately ten to fifteen technicians, who are represented by another labor organization, the Professional Airways Systems Specialists (PASS).

B. FAA Authorized Construct of a New Standiford Air Traffic Control Tower in 1991; NATCA Local SDF Submits a Request to Negotiate.

In 1991, shortly before Theodore J. Clark, Jr. became Air Traffic Manager at Standiford Tower, FAA authorized construction of a new Standiford Tower. The Standiford airport was being expanded, which required the relocation of the current air traffic control tower to a new location. Originally, the facility was authorized a base building of 14,500 square feet. It was anticipated that the new facility, which would include the administrative offices of Airways Facilities, would be large enough to support an additional 10 to 15 employees hired for air traffic control.

1. NATCA Local SDF Requests to Negotiate About the New Facility.

Mark Hood became the President of NATCA Local SDF in June or July 1992. During his tenure as Union President, Hood has negotiated with Clark, the Air Traffic Manager, on a variety of subjects including sick leave, overtime, watch schedules, and facility orders. During these negotiations Clark had the authority to resolve grievances, and execute memorandums of understandings with Hood concerning working conditions. Clark is the top management official at Standiford facility.

Upon learning of FAA's plan to construct a new control tower, Hood, as NATCA Local SDF President, discussed the details of the plan with Clark. Clark informed Hood that he did not have the authority to enter into any type of agreement with the Union, and that the decisions for the new facility were going to be made at the Regional Office level. Nevertheless, on August 31, 1992, Hood requested to negotiate by submitting proposals to Clark, who then forwarded the proposals to Ike Grove on September 2, 1992. Grove worked as a section supervisor in the Southern Regional Office in the Facilities and Equipment (F & E) Division of the FAA, the section responsible for the planning and construction of the new facilities.

The Union proposed that the new facility should include a Union office, a smoking area in accordance with a Federal Service Impasse Panel decision, a workout/recreational area, a basement for the base building and covered parking. The proposal for the workout/recreational room was to provide an area for weight lifting equipment, stationary bikes, and space large enough for other recreational activities. NATCA Local SDF was to provide the equipment. Hood wrote:

As a general rule, air traffic controllers have a high incidence of health problems, most of which can be directly related to the high amount of stress incurred in the performance of our jobs, and the lack of activity at the workplace. This area will not only provide a means to dissipate stress, but will allow for the formulation and implementation of the FAA Wellness program here at SDF. We feel that with the implementation of a facility wellness program, there would be a substantial drop in sick leave usage, and therefore a drop in overtime expenditures.

NATCA Local SDF envisioned the workout room (later termed the multipurpose room) as a benefit to both the bargaining unit employees and the agency, by reducing the amount of stress inherent in the job as an air traffic controller, and to meet the needs of the FAA Wellness Program. The Union did not propose to negotiate the size of the overall facility.

2. NATCA Local SDF Submitted Second Request to Negotiate, and Filed Unfair Labor Practice (ULP), Case No. AT-CA-30215.

After Clark forwarded the Union's proposals to Grove, Hood unsuccessfully attempted to call Grove on several occasions to discuss the construction of the new facility and the Union's proposals. Hood then did contact Grove who informed him that it was inappropriate for Hood to contact him, and that he should be dealing with Clark on the subject. Thereafter, on November 7, 1992, the Union made a formal written bargaining request to Grove to discuss the construction of the new facility, and proposed that the parties meet at an agreeable time and place to start the negotiation process.

After FAA did not respond to the Union's demand to bargain, Hood filed an unfair labor practice (Case No. AT-CA-30215) with the Atlanta Region of the FLRA on November 23, 1992. The ULP alleged that FAA, by failing to reply to the Union's request to negotiate, bargained in bad faith in violation of the Statute.

C. NATCA Local SDF Pursued Bargaining and Settlement while ULP (AT-CA-30215) was Pending.

After the ULP was filed in November 1992, the Union still pursued negotiations with Respondent over the new facility through the submission of proposals, including ground rules. Clark responded again that he did not have the authority to negotiate. Despite Clark's stated position, Hood received a letter from Vance White, the FAA's Senior Labor Relations Specialist for the Southern Region, which provided that

Respondent was prepared to meet with NATCA to negotiate. The letter provided in its entirety:

In accordance with 5 USC Chapter 71, Section 7117, management recognizes its obligation to I & I bargain as appropriate concerning the new tower at Standiford Field. The Manager at Standiford Tower is ready to meet at your request.

Upon receipt of the letter, Hood approached Clark in another attempt to begin negotiations on the new tower. In spite of White's assurances that Clark was the individual the Union should begin negotiations with, Clark responded to Hood that he did not have the authority to negotiate.(2)

Following White's letter, on March 19, 1993, Clark made a formal proposal to form a planning committee to take over all planning for the new facility. Clark proposed:

I envision the committee being made up of two bargaining unit members and two staff members. The committee would have the authority to make decisions on all matters concerning the new facility and the responsibility to complete all future planning. The committee would also plan and oversee the new procedures needed to move from the existing ATC to the new facility.

The Union responded that due to the pending ULP, it was inappropriate for any other individuals to handle the issues other than Clark and Hood.

While the Union was attempting to initiate negotiations, even after the ULP was filed, FAA continued to plan for the new tower without Union input. Meetings were held in the Regional Airport Authority conference room to discuss the design and construction of the facility, with representatives from the Regional Airport Authority (the body that governs the airport), architects, Clark, Joel Cole (a staff specialist at Respondent), representatives from F & E (at least at some of the sessions), a representative of Airways Facilities and Hood(3). At these meetings, the parties discussed the design of the base building, which included the administrative areas, the radar equipment, and the tower itself. Through the input of the architect firm, the planners discussed a base building with a square footage of 17,500, to accommodate the amount of equipment required in the facility.

At one of the meetings, on July 21, 1993, Dirk Bronson, from F & E, informed the parties that if it would not delay the project if there was authorization to include a multi-purpose room in the new facility, originally proposed by the Union. The consensus from the participants was that the inclusion of the multipurpose room would not delay the project.

After this meeting, in August 1993, a new nation- wide collective bargaining agreement (CBA) was executed. Article 76, section 4 and 5 of the new CBA. New Facili-ties/Current Facility Expansion, provides that NATCA, at the appropriate level, will be notified when the FAA approved project implementation plans for new, expanded, remodeled, or combined facilities, and:

Any negotiations under this Article shall be conducted in accordance with Article 7 of this Agreement. Nothing in this Article shall be construed as a waiver of any Union or Employer right.

Article 7 of the CBA, addresses the procedures for bargaining for changes in working conditions at the national and local level.

Article 13 of the CBA, entitled Union Publications and Information and Use of Employer's Facilities, provides for the use of bulletin boards and distribution of materials by the Union and for the provision of a Union office and work space by the FAA.

D. After the Issuance of Complaint in AT-CA-30215, the ULP is Withdrawn by the Union.

While planning of the new tower continued a Complaint and Notice of Hearing was issued in Case No. AT-CA-30215 on January 18, 1994. A hearing date was scheduled for early April 1994. Concurrently, NATCA and the FAA were implementing a partnership in an effort to improve the relationship between the parties that had become adversarial. Discussions ensued between NATCA Regional Representatives' Rodney Turner and Randy Schwitz and the Respondent at the Regional level in an effort to resolve the ULP in a partnership atmosphere. Prior to the withdrawal of the ULP, Hood submitted his third written request to negotiate to Clark on March 2, 1994. Hood requested that Clark either begin negotiations as FAA's authorized representative, or provide the name of the individual who had the authority to negotiate.

The Union was given assurances that Clark was ready to meet with Hood and resolve the issues in a partnership environment. On April 10, 1994, the Union withdrew the ULP based on these assurances. The Union withdrew the ULP on the condition that FAA was willing to negotiate over the new facility and send an authorized representative to the bargaining table. At no time after the Union withdrew the ULP in April 1994 did Clark, or another management representative, inform the Union that they did not have the authority to negotiate.

Hood requested that FAA provide written assurances. On May 9, 1994, one month after the ULP was withdrawn, Wayne Goswick, Air Traffic Manager, Cincinnati HUB, assured the Union that, in the spirit of cooperation and understanding, NATCA Local SDF would continue to be included in the discussions over the new tower. The Union representative was to be afforded an opportunity to attend all on site meetings concerning the facility and would be able to provide recommendations concerning the internal structure of the facility. Goswick's letter referenced Clark's March 19, 1993 letter, which was Clark's proposal to delegate complete authority on the planning of the new facility to a committee. Goswick's letter also provided that budgetary requirements would limit the inclusion of certain items, but was silent with respect to higher level approval of any agreements reached.(4)

Following the withdrawal of the ULP, and the assurances from FAA, over an eight month span Hood met four or five times with Clark, other FAA representatives from F & E, and the other participants at the planning sessions outside of the facility, and had numerous informal discussions, to discuss the design and layout of the new facility. The meetings were attended by the same participants who were designing the layout of the facility as before. Hood was introduced as the NATCA President and submitted proposals on behalf of the Union. As the participants began these sessions, and began discussing the blueprints for the interior design, Tom Malone, F & E Specialist, was very specific that he could not approve a building larger than the current size being discussed, 17,500 square feet. During the sessions, if specific items arose, such as increasing the size of the building beyond 17,500 square feet by building a second story or a basement in the building, Malone specifically stated that he needed FAA approval.

When the subject of the multipurpose room arose, Clark and Malone never indicated that a higher level of the FAA needed to approve any agreements, and expressed their desires to include a multipurpose room in the plans.

During the session, the parties drafted blueprints for both the base building and the tower. The plans that were drafted were partially based on NATCA Local SDF proposals and included a multipurpose room.

By September 1994, the participants finalized plans for the new facility and employees in the bargaining unit were notified in the facility newsletter, at crew briefings, and by the Union that the new facility would contain, among other items, a multipurpose room.

On January 18, 1995, the day before the final session, Hood met with Malone, the Airways Facility manager, and Clark to discuss the plans and work out some minor changes to the plans. At Malone's request, Hood drafted a blueprint of the base building reflecting these minor changes that had been agreed to. The blueprint was for a 17,500 square foot building as authorized by Malone, and included items that were agreed to at previous meetings, a multipurpose room that was approximately 300 square feet (adjacent to the mechanical room), a Union office, a smoking room and showers. The plans also included a 600 square foot conference room, and a training room approximately 70 square feet larger than the training room in the current facility.

At the final session, on January 19, 1995, Malone began the meeting by stating that the meeting was not going to end until an agreement was reached. The participants agreed to make some minor changes to Hood's blueprint, including the reduction of space in the multipurpose room by the movement of a wall by two feet. The participants agreed upon the overall blueprint of the base building drafted by Hood, which included a multipurpose room. The participants also agreed upon the design and layout of the tower shaft, including a quiet room, and a break room. At the conclusion of the session, the architects discussed when they would finish the construction drawings in order to begin construction on the building. There was no discussion from either Clark or Malone that the plans needed higher level from the FAA. No date was set for another session.

E. FAA Refuses to Execute Written Agreement on the Design and Layout of the New Tower, and the Plans are Changed.

Following the agreement on the layout and design of the facility, Clark informed Hood that the FAA planned to reduce the size of the facility. On February 8, 1995, Hood requested that Clark, in accordance with section 7114(b)(5) of the Statute, execute a Memorandum of Understanding (MOU) recording alleged agreements reached by the parties. Clark responded by letter dated February 15, 1995, refusing to sign the MOU because the size of the facility was being questioned by FAA Headquarters, that the facility was attempting to justify a facility of that size and that he did not have authority to commit FAA to a specific building size through any local agreement.

The reason that the multipurpose room had been eliminated from the design, was not because the inclusion of a multi-purpose room in a facility would violate a law, or government wide rule or regulation, but rather, because of purported budgetary constraints with respect to the size of the overall building.

Construction on the new facility has not begun, and the latest plans for the new facility have not been finalized. However, the latest plans drafted by the architects, exhibits a facility 14,500 square feet, without the multipurpose room. The latest blueprints also indicate that Respondent is planning on constructing a 600 square foot conference room in the new facility to be jointly used by the Air Traffic employees, and the Airways Facilities employees, all employees of the FAA, and a training room larger than the training room in the current facility. There was no evidence adduced at hearing that FAA had an agreement with PASS over the design and layout of the building.

After Clark's refusal to sign the MOU, and upon learning that FAA planned to eliminate the multipurpose room to accommodate a smaller facility, the NATCA Local SDF filed the charges in the two subject Unfair Labor Practice cases.

Discussion and Conclusions of Law

The GC of the FLRA alleges that FAA violated § 7116(a) (1), (5), and (8) of the Statute by failing to sign a written document embodying the agreed to terms concerning the new Standiford Tower; by Clark stating in a February 15, 1995 letter, that he did not have authority to enter into an agreement with NATCA; and by refusing to "abide and implement" the agreement FAA had reached with NATCA. It is also alleged that FAA violated §7116(a)(1), (5) and (8) of the Statute by failing to be represented at negotiations with NATCA concerning the new Standiford Tower by authorized representatives as required by § 7114(b)(2) of the Statute.

A. The Design and Layout of the Standiford Tower and the Multipurpose Room.

Once FAA made the decision to construct a new air traffic control tower, it was obligated to negotiate the design and layout of the facility. The Authority has held that the location in which the employees perform their work, and other aspects of employees' office environments are matters at the very heart of the traditional meaning of conditions of employment. See Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 51 FLRA 35 (1995); Department of Health and Human Services, Region IV, Office of Civil Rights, Atlanta, Georgia, 46 FLRA 396 (1992) (HHS). The FLRA has consistently held in negotiability decisions that proposals concerning space allocation, and the arrangement of space are negotiable unless an agency demonstrates that the proposals are inconsistent with applicable law and regulation. See, e.g., National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 413 (1990) (IRS); American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 25 FLRA 979, 981 (1987). Cases concerning space allocation present an example of the tension between the competing legitimate interests of employees and management, interests that are not irreconcilable and ones that can be resolved through collective bargaining. IRS, 35 FLRA at 414.

An agency is obligated to bargain to the extent it has discretion to bargain on otherwise negotiable matters. Library of Congress, Washington, D.C., 7 FLRA 578 (1982), enf'd sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983)(LOC). In LOC, the court affirmed the FLRA's findings that the agency was obligated to bargain over changes in office design and office environment.(5) The fact that control over the construction of the new facility may ultimately rest with a different organizational component of the FAA does not bar negotiations. See, e.g., National Guard Bureau and Adjutant General, State of Pennsylvania, 35 FLRA 48, 53 (1990). The record fails to establish the existence of any government wide regulations (i.e., GSA regulations) controlling the design of facilities, and FAA had full discretion in the design and layout of the facility.

1. The Multipurpose Room

The test for whether a matter involves a condition of employment is set forth in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986)(Antilles). The FLRA considers (1) whether the matter pertains to bargaining unit employees and (2) whether there is a direct connection between the matter and the work situation of bargaining unit employees. Id. at 237. The United States Court of Appeals for the District of Columbia reviewed the Antilles test in American Federation of Government Employees, Local 2761, AFL-CIO, 866 F.2d 1443, 1447, 1449 (D.C. Cir. 1989), and held that the second part of the test requires the FLRA to determine whether there was a link or nexus between the matter and the workers' employment. The Court also found that where a matter has "a direct effect on the work relationship[,]" it concerns a condition of employment. Id. at 1449. See also United States Department of Health and Human Services, Social Security Administration, Region X, Seattle, Washington, 37 FLRA 880 (1990) (adopting the D.C. Circuit's application of Antilles).

In U.S. Department of the Army Aviation Systems Command, St. Louis, Missouri, 36 FLRA 418, 422-23 (1990) (U.S. Department of the Army Aviation Systems Command), the Authority found that the existence and availability of physical fitness facilities directly affected the work situation and employment relationship of bargaining unit employees, and therefore, was a condition of employment. In reaching that conclusion, the Authority found that a link or nexus was established because of Army regulations that emphasized physical fitness. Compare, International Association of Fire Fighters, AFL-CIO, Local F-116 and Department of the Air Force, Vandenberg Air Force Base, California, 7 FLRA 123 (1981).

FAA contends that it has no obligation to bargain about a multipurpose room in the new facility because it is not a condition of employment.

I conclude that inclusion of a multipurpose room in the new facility is a condition of employment under section 7103(a)(14) of the Statute. In the Union's original proposal Hood explained that the multipurpose room, which was to be furnished by the Union with exercise equipment, was designed to reduce the amount of stress experienced by bargaining unit employees in the position of air traffic controller. Also, the multipurpose room would hopefully reduce the amount of sick leave and overtime expenditures, and be used in conjunction with the FAA's Wellness Program. The evidence established that there is a link, or nexus, between the multipurpose room and the workers' employment as it was proposed in conjunction with the Agency's Wellness Program and reduction of stress among air traffic controllers.

Thus the record establishes, and I conclude, that the multipurpose room has a direct effect on the employees' work relationship and is a condition of employment. Moreover, there are no government wide rules, laws or regulations that prohibit a multipurpose room in a facility.

2. FAA's "Covered By" Argument.

FAA's contends that it had no obligation to bargain with the Union concerning the construction of the new facility because the matter was "covered by" the parties negotiated agreement. I reject FAA's contention in light of the Authority's decisions addressing whether a contract provision covers a matter in dispute. In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA) the Authority established a test to determine when a matter is contained in or is covered by a collective bargaining agreement. The Authority ruled that, upon execution of an agreement, an agency should be free from a requirement to continue negotiations over terms and conditions of employment already resolved by the previous bargaining. SSA, 47 FLRA at 1018. SSA is premised on an agency's refusal to bargain, or the implementation of a change that is covered by the parties' agreement.

In the subject case Article 13 of the CBA deals with FAA's obligation to provide the Union with space and facilities to communicate with the unit members and to conduct union business. It in no way deals with the lay out of employee space and the planning of towers for the benefit of the employees or the provision of a multipurpose room for employee use.

Article 76 of the CBA provides for notice to the Union at the national level when certain decisions are made regarding a new facility, it provides for the Union at the local level to be part of and participate in a transition committee or work group to plan the new facility. FAA correctly points out that this provides for a participation in a procedure that is less than negotiations. However, Article 76 of the CBA also provides for notice at the local levels and for bargaining under Article 7 of the CBA and it further, specifically provides that nothing in the agreement shall be construed as a waiver by the Union of any right. I conclude the CBA not only does not preclude bargaining over the provision of a multipurpose room and does not cover the subject of plans and layout of the tower so as to prevent bargaining, but, rather, specifically provides for such bargaining by providing for notice at the local level and for bargaining and by stating that the Union was not waiving its rights. The CBA contemplates further negotiations, at the local level, on the construction of new facilities. See Internal Revenue Service, 47 FLRA 1091 (1993).

B. The Planning Sessions

Section 7103(a)(12) of the Statute defines collective bargaining as the:

performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached. . .

Section 7114(b)(5) of the Statute provides that the duty to negotiate in good faith includes, if an agreement is reached, the obligation to execute upon request a written document embodying the agreed upon terms and to take necessary steps to implement the agreement. Internal Revenue Service, Philadelphia District Office, 22 FLRA 245 (1986).

The GC of the FLRA contends that after settling the ULP case (Case No. AT-CA-30215) NATCA Local SDF and FAA engaged in negotiations over the new Standiford Control Tower and reached agreement and that FAA was obligated to execute and implement the agreement. The GC of the FLRA argues that the planning sessions, after the withdrawal of the ULP charge in Case No. AT-CA-30215 constituted negotiations and that the Union and FAA, in these sessions, reached agreement on the layout of the new tower.

I conclude that these meetings were not negotiations in the collective bargaining sense and that no agreement was reached, in the collective bargaining sense.

The record does establish that NATCA Local SDF on a number of occasions requested, indeed demanded, to negotiate concerning the layout of the new Standiford Facility. FAA reassured Hood that Clark would try to resolve the issue in the spirit of partnership.

Hood had been participating in the planning sessions long before the withdrawal of Case No. AT-CA-30215. When he first attended these sessions he apparently recognized that they were not negotiation sessions between the Union and management. The May 9, 1994 memorandum from the FAA reassured Hood that in the spirit of cooperation and understanding FAA would continue to include the Union in the discussions concerning the establishment of the new facility and that the Union representative would be afforded an opportunity to attend all on site meetings and to provide recommendations concerning the internal structure of the facility.

After receipt of this reassurance Hood continued to attend and participate in these planning sessions. These meetings were fundamentally conducted in the same way as before the reassurance and nothing changed to convert them to collective bargaining meetings or to negotiations. At these planning sessions the Union, as well as all the other participants, made suggestions and tried to reach consensus, which they did. The participants at these sessions, in addition to the Union, Malone and Clark, were representatives of the Regional Airport Authority, of the architects, of F & E and of Airways Facilities.

These planning sessions, which the GC of the FLRA contends metamorphosed to negotiations after the withdrawal of Case No. AT-CA-30215, are the crux of this case. Thus FAA's representatives were communicating to the Union that FAA was prepared to accomplish the planning of the new facility in the spirit of partnership and to join with the Union and the other participants of the planning sessions in arriving at plans to be submitted for approval. In this regard it must be noted that among the other participants making suggestions were representatives of the Regional Airport Authority, a non FAA entity, and Airways Facilities, an FAA operation at the Standiford Facility that does not employ any members of the unit represented by NATCA.

The Union on the other hand was demanding to negotiate about the new facility as Hood continued to attend and participate in these planning sessions. Accordingly, I conclude that there was a fundamental confusion and disconnect between Clark and Hood. Clark thought he was engaging NATCA Local SDF in more meaningful and cooperative partnership discussions aimed at reaching a plan agreeable to all participants that could then be submitted to FAA headquarters for approval. Hood apparently thought these planning sessions were converted to negotiations and that any resulting agreement would be binding on both NATCA and FAA.

I conclude that there was no meeting of the minds with respect to the fundamental nature of the planning sessions and their result and, thus, there was no negotiated agreement as to the layout of the new Standiford Tower, in the collective bargaining sense. Therefore there is no agreement with respect to the layout of the new facility that FAA was obligated to sign or implement and FAA did not violate § 7116(a)(1), (5) and (8) of the Statute when it refused to sign and implement the result of the planning sessions.(6)

In concluding that the planning sessions were not negotiation sessions, at least not in the view of FAA, I am not indicating that the Union waived its right to negotiate by participating in the spirit of partnership, in the planning sessions. Rather, the Union could have insisted on negotiating with FAA concerning the new facility and exercised this right by not participating in the planning sessions, by engaging in negotiation meetings at different times than the planning sessions, or by insisting that FAA recognize the planning sessions were being converted to negotiations.

C. FAA's Representative.

GC of the FLRA argues alternatively that, if it is found Clark did not authority to bind FAA, FAA violated § 7116(a)(1), (5), and (8) of the Statute because § 7114(b) (2) of the Statute obligates parties to send fully authorized representatives to the negotiation table. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 44 FLRA 205 (1992).

The record, herein, establishes that, although at first Clark stated he did not have authority, both FAA and Clark did acknowledge that Clark had full authority to bargain about the new layout and planning of the new facility.(7) Accordingly, I must reject the contention of the GC o the FLRA that FAA violated the Statute by failing to send an authorized representative to the bargaining table.(8)

Accordingly, having concluded that FAA did not violate § 7116(a)(1), (5), and (8) of the Statute, it is recommended that the Authority adopt the following:

Order

The Complaint in Case Nos. CH-CA-50496 and CH-CA-50497 are hereby DISMISSED.

Issued, Washington, DC, February 12, 1996

___________________________
SAMUEL A. CHAITOVITZ
Chief Administrative Law Judge




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


Authority's Footnotes Follow:

1. Section 7103(a)(12) defines "collective bargaining" as

the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession[.]

2. The other participants at the sessions were architects and FAA officials. Transcript (Tr.) at 35, 39, 53.

3. The Judge also found that "inclusion of a multipurpose room in the new facility is a condition of employment under section 7103(a)(14) of the Statute[,]" (Judge's Decision at 11) and he rejected the Respondent's argument that it had no obligation to bargain with the Union over the facility on the ground that the matter was covered by the parties' collective bargaining agreement. No exceptions were filed to these conclusions.

4. The General Counsel "does not contest this finding as the record fully supports it." Exceptions at 8.

5. Similar standards apply in the private sector. "A meeting of the minds of the parties must occur before a labor contract is created." Bobbie Brooks, Inc. v. International Ladies Garment Workers Union, 835 F.2d 1164, 1168 (6th Cir. 1987). "Whether a collective bargaining agreement exists is a question of fact; [the] technical rules of contract law are not strictly binding." Id. (citation omitted). The surrounding circumstances and the intentions of the parties may be considered to determine if a collective bargaining agreement exists; however, an objective standard applies to the formation of a contract, regardless of a meeting of the minds in a subjective sense. Warehousemen's Union Local No. 206 v. Continental Can Co., 821 F.2d 1348, 1350 (9th Cir. 1987).

6. It is clear that the Union President was authorized to negotiate on behalf of the Union. The Judge found that the Manager was authorized to negotiate on behalf of the Respondent, and no exception was taken to his finding. There is also no dispute as to the substantive terms that were agreed to at the end of the sessions.

7. In American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, Central Region, Dallas, Texas, 52 FLRA 1313 (1997), the Authority denied a union's exception contending that the arbitrator erred in finding that the parties' partnership agreement was not an addendum to the parties' collective bargaining agreement. The Authority noted that the union did not claim that the partnership agreement itself either constituted a collective bargaining agreement under the Statute or resulted from collective bargaining. Id. at 1317 n.4.

8. As our conclusion is based on the totality of the circumstances in this case, it is not intended, and should not be construed, as a general pronouncement that all discussions of the sort in this case constitute collective bargaining within the meaning of the Statute.


ALJ's Footnotes Follow:

1. The GC of the FLRA filed a motion to correct the transcript in this matter (Attached hereto as "Attachment A"). No opposition to this motion has been filed. Accordingly, the motion is GRANTED and the corrections set forth in "Attachment A" are hereby made.

2. Prior to the settlement and withdrawal of Case No. AT-CA-30215 Clark informed Hood on numerous occasions that he did not have the authority to negotiate. However, NATCA withdrew the ULP on assurances from FAA that Clark was the individual NATCA should be dealing with to resolve the issue.

3. Hood started attending these planning sessions in approximately February 1993.

4. Once the ULP was withdrawn FAA never informed Hood that his negotiations with Clark were subject to approval by the FAA, or that Clark did not have the authority to negotiate.

5. Although the Union in this case never proposed the expansion of the facility, the Authority has found negotiable a union's proposal that an agency expand existing office space to accommodate a break room. U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, Tucson, Arizona, 46 FLRA 930 (1992).

6. If it had been found that there had been a meeting of the minds and a negotiated agreement as to the layout of the new facility had been reached, then I would have concluded that FAA would have violated sections 7116(a)(1), (5) and (8) of the Statute when it refused to sign and abide by the agreement. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 44 FLRA 205 (1992).

7. Clark and other FAA representative