[ v11 p36 ]
The decision of the Authority follows:
11 FLRA No. 18 UNITED STATES DEPARTMENT OF TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, SOUTHWEST REGION Respondent and PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION Charging Party Case No. 6-CA-568 ORDER GRANTING MOTION TO DISMISS COMPLAINT The above-entitled case is before the Federal Labor Relations Authority pursuant to section 7105(a)(2)(H) of the Federal Service Labor-Management Relations Statute (the Statute), after being transferred by Order of the Administrative Law Judge in accordance with section 2423.26 of the Authority's Rules and Regulations. The Respondent filed exceptions to the Judge's Decision and the General Counsel filed a response thereto. Thereafter, the General Counsel filed a motion to dismiss the complaint in view of the Authority's decision in Professional Air Traffic Controllers Organization, Affiliated with MEBA, AFL-CIO, 7 FLRA No. 10 (1981), affirmed sub nom., Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority, 685 F.2d 547 (D.C. Cir. 1982). In that decision, the Authority revoked the exclusive recognition status of the Charging Party herein, PATCO, for having engaged in strike activity prohibited by section 7116(b)(7) of the Statute, and found that PATCO is no longer a labor organization within the meaning of the Statute. Upon careful consideration of the motion to dismiss filed by the General Counsel, it has been determined that this unfair labor practice case has been rendered moot. In this regard, the Authority notes particularly that individual rights of employees are not affected; rather, as found by the Judge, only the institutional rights of PATCO (to be unconditionally represented at certain formal discussions) were allegedly affected by the Respondent's actions. Thus, due to Respondent's loss of status as an exclusive representative and as a labor organization under the Statute, any decision rendered herein cannot have any practical legal effect. Accordingly, IT IS HEREBY ORDERED that the complaint in the above-entitled case be, and it hereby is, dismissed. Issued, Washington, D.C., January 14, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Lynda G. Cameron For the Respondent Irene Jackson, Esquire Steven M. Angel, Esquire (on the brief) For the General Counsel Before: GARVIN LEE OLIVER Administrative Law Judge DECISION Statement of the Case This case arose pursuant to the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., (the Statute), as a result of an unfair labor practice complaint filed by the Regional Director, Region Six, Federal Labor Relations Authority, Dallas, Texas, against the United States Department of Transportation, Federal Aviation Administration, Southwest Region (Respondent) based on a charge filed by the Professional Air Traffic Controllers Organization (Charging Party or Union). The complaint alleged, in substance, that Respondent violated sections 7116(a)(1), (5), and (8) of the Statute by conducting formal meetings, as defined by section 7114(a)(2)(A) of the Statute, during the week of February 4, 1980, without affording the Union an opportunity to be present. A hearing was held in this matter in Ft. Worth, Texas. The Respondent and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. Based on the entire record herein, including my observation of the witnesses and their demeanor, the exhibits and other relevant evidence adduced at the hearing, and the briefs, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact 1. At all times material herein Respondent and the Union have been parties to a collective bargaining agreement recognizing the Union as the exclusive bargaining agent for an appropriate unit of employees, including air traffic control specialists at the Oklahoma City Radar Approach Control Tower (RAPCON Tower) and the Will Rogers Tower. (General Counsel's Ex. 1(d), par. 3; General Counsel's Ex. 1(f), par. 3; Tr. 17). Subjects covered by the collective bargaining agreement include Article 7 (Grievance procedure), Article 25 (acceptable level of competence determinations), Article 50 (recognition and awards program), Article 52 (training), Article 53 (on the job training), Article 55 (controller performance), and Article 71 (system error review board). 2. In early 1980 Respondent decided to send a six-man regional task force to the Oklahoma City RAPCON Tower to conduct a special in-depth evaluation of management and operational problems as a follow-up of an earlier check evaluation conducted at the facility in September 1979. The Task force determined that it would be essential to interview almost everyone at the facility, including members of the bargaining unit. (Tr. 91-93). 3. On January 15, 1980 the Chief, RAPCON Tower sent a memorandum to all personnel which stated, in part, as follows: As a follow-up to our last check evaluation conducted by ASW-520 during September 10-14, 1979, representatives of the Air Traffic Division will be visiting our facility during the week of February 4-8, 1980. The purpose of their visit will be to observe our operations and to determine how effectively our previous deficiencies have been corrected and if effective measures have been established to correct certain procedural and operational problems. Their visit will also include discussions with facility personnel in order to obtain as much feedback as possible on the status of our operation. (Joint Ex. 3). 4. During the period January 18 to February 4, 1980 Respondent and the Union discussed the proposed evaluation and interviews. The Union's position was that this type of in-depth investigation and interview of employees in the bargaining unit would constitute a "formal discussion" under section 7114 of the Statute at which the Union had the right to be present. Respondent's position was that the Union had no right under the Statute to be represented at the interviews, but, as a courtesy to the Union and in order to ensure that the employees would be open and free in their discussions, management would permit a Union representative to be present if requested by the individual employee. (Tr. 17-20; 92-101). 5. On January 29, 1980 the Chief, RAPCON Tower addressed another memorandum to all personnel which stated as follows: In the reference letter, we mentioned that the evaluation team would be discussing matters of interest with facility personnel to obtain feedback. In order to provide everyone with the opportunity to meet with the team, each employee will be interviewed by representatives of the team during scheduled duty time. If any employees prefers to meet with the team during non-duty hours at an off-base location, this can also be arranged. Since these discussions will not involve potential discipline or union contract matters, a union representative will not be required; however, we have arranged to have a union representative available if anyone feels the need for representation. The evaluation team will begin interviews on Monday afternoon, February 4. Interviews will be conducted at Will Rogers Tower as well as the RAPCON. Members of the team will also be assigned to the operational quarters to monitor our services. Visitations with users will also be conducted during their visit. It is expected that the evaluation team will be here until Tuesday, February 12. 6. Approximately 40 members of the bargaining unit were interviewed by the team during the period February 4-8, 1980. (Tr. 54). All except 3 requested to have a Union representative present. (Tr. 25, 48). The record reflects that some, if not all, the interviews were conducted in an office on the jobsite, but separate from the employees' workplace. (Tr. 70, 85, 88). 7. Below, on the left hand side, in pertinent part, is the form used by the interviewers, (Joint Ex. 2) and, on the right side, are notes taken by the Union concerning the questions asked. (General Counsel's Ex. 2; Tr. 24-25). There is no dispute that these constitute the substance of the pertinent questions asked during the interviews. Name Date Name Crew Team Team Supervisor 1st Line 2nd Line Assistant Chief Supervisor Supervisor How long have you been in the Agency? Would you briefly explain your background? (Other facilities where you have worked and what you did). How do you feel you get along with: 1. Your supervisor? 2. Second level supervisor? 3. Other supervisor? 4. "Front Office" (Chief, Deputy Chief, FEDS, DSS, PPS)? What Kind of relationship do you have with your team supervisor? What kind of relationship do you have with your assistant chief? What kind of relationship does your team supervisor/assistant chief have with each other? What kind of relationship do they have with other supervisors? What kind of relationship do you have with other supervisors? What kind of relationship do you have with front office? What kind of communications do you feel you have with: 1. Your supervisor (Open - frank exchange of thoughts without fear)? Second level supervisor? 3. Other team supervisors? What kind of communications do you feel your supervisor has with: Assistant Chief? Other team sups? Controllers? Training Department? DSS? PPS? Deputy Chief? Chief? Do you feel the chief has an open door policy? Deputy Chief? Does the chief have an open door policy? Does the Deputy Chief? What is your view of your supervisor (As a supervisor-operationally-competency)? What is your view of the Assistant Chiefs? What is your view of other team supervisors? Is your team supervisor operationally proficient? Your Assistant Chief? Other supervisors How would a question you ask of your supervisor be handled? How do you ask if you have questions on operational matters. How does your supervisor respond to your suggestions? Does your supervisor periodically discuss your work with you-other than the tap? How often? When was the last time? How was discussion held? Does your supervisor discuss your performance? How often? How is this handled? Does your supervisor discuss your weaknesses? Does the supervisor offer help for improvement? Has the supervisor done anything to help you improve? What? When? How? Does your supervisor discuss your strengths? Does the facility have supervisory meetings? Where are they held? Do you receive feedback on sups meetings? Do you provide feedback to your team on items discussed at supervisory meetings? Are supervisors meetings held at OKC? How often? Where? Do you receive feedback from these meetings? How are briefings conducted on new procedures? (Timely) (ETG) What is the best procedure you have in the facility? What is the worse procedure you have in the facility? Are there any traps for the controller in the procedures now in use? What is your opinion of FETTAC (Effective-Not effective)? How does your team work with other teams? What is the best procedure at OKC? What is the worse procedure OKC? Are there any traps in the current procedures at OKC? What is your opinion of the services provided by OKC? How does your team get along other teams at OKC? How is developmental training conducted? How is FPL refresher training conducted? How is the ETG lab used? What happens after someone in the facility has a system error? How are system error review boards conducted? What happens when there is a systems error at OKC? What kind of relationship do you feel the facility has with: Fort Worth Center USAF? AF? ACADEMY? PWA? FSS? USERS? How does your team get along with Fort Worth Center? What kind of relationship does OKC have with? Air Force? FAA Academy? PWA? USERS? What do you think about the quality of services provided by this facility? What is your view of management in this facility? How does management in this facility compare with management at other facilities you have worked? Supervisors? Support staff? What is your opinion of Don White? What is your opinion of Harry Weatherford? What do you think of the awards program? How do you feel about this facility? Is there anything else you want to talk about? 8. As noted, the questions elicited the personal opinion of bargaining unit employees concerning such matters as relationships and communications with, and the competency of, various levels of supervision and management generally, how employee teams get along, the best and worst procedures at the facility, the facility's relationships with other agencies, and the awards programs. Certain questions also sought factual information concerning supervisory meetings, briefings, training programs, whether the supervisor discusses the employee's performance, weaknesses, strengths, and has done anything to help the employee improve, how procedures are developed and implemented, what happens when someone has a systems error, how systems error review boards are conducted, and how a question or suggestion to a supervisor is handled. The question, "What is the worst procedure at OKC?" elicited comments as to aircraft departure procedures. (Tr. 42-43, 52). The question, "What is your opinion of FETTAC (effective-not effective)?" referred to the Facility Air Traffic Technical Advisory Committee, which is made up of one representative from each crew and processes suggestion from controllers on the procedural handling of air traffic. (Tr. 44, 51). The question, "How is developmental training conducted?" referred to the type of training given to new personnel. It was designed to determine if the training program was adequate. (TR. 119-120). The question, "How is FPL refresher training conducted?" referred to training given to poor performance level controllers. It was designed to determine the kind of training program being given at the facility and whether controllers were benefiting from it. (TR. 120). The question, "How is the ETG lab used?" referred to the electronic target generator used to simulate air traffic targets for operational training. (Tr. 45, 52). The question elicited such responses as it was not liked, was not being used as much as it should be, or should be dropped. (Tr. 49-50). The question, "What is your opinion of the awards programs?" referred to the awards program for performance, such as outstanding, superior, or quality step increase performance awards. (Tr. 119). The question, "Is there anything else you want to talk about?" elicited complaints about only one man being assigned to a midwatch, (Tr. 46-47), a suggestion as to reinstituting an abolished form (TR. 46), comments on grievances and disciplinary actions which were no longer pending before the facility (Tr. 48, 66-67, 74), aircraft approach and departure procedures (Tr. 58, 60, 65) and the professional attitude of management toward controllers and vice versa. (Tr. 89). One employee also expressed his opinion during the interview about the evaluation panel itself and the quality of the physical facilities and equipment. (Tr. 71-72). 9. There is no evidence that the interviewers bargained with employees, or offered any suggestions or solutions to the problems identified during the interviews. 10. As a result of the interviews and facility evaluation, three management officials at the facility were involuntarily reassigned. (Tr. 36-37, 81, 102). There is no evidence that personnel policies, practices, or matters affecting working conditions were changed as a result of the interviews. (Tr. 37, 101-102). Discussion, Conclusions, and Recommendations The complaint alleges that Respondent's interviews of unit employees were formal discussions within the meaning of section 7114(a)(2)(A) of the Statute; /1/ that Respondent violated section 7114(a)(2)(A), and, thus, sections 7116(a)(1) and (8) by conducting formal discussions without affording the Union an opportunity to be present; and violated sections 7116(a)(1) and (5) in bypassing the exclusive representative with regard to the very matters for which it was chosen by the unit employees to act as their spokesman. Respondent contends that it did not violate the Statute inasmuch as the interviewers only gathered information on management techniques and operational procedures. Respondent states that such interviews did not constitute formal discussions within the meaning of section 7114(a)(2)(A), because no bargaining took place over the formulation and implementation of personnel policies, practices, or matters affecting working conditions. The record, including the memoranda addressed to bargaining unit employees, reflects that bargaining unit employees were required to submit to interviews by the regional task force. Some, if not all, of the interviews were conducted in an office apart from the employees' workplace. A structured format was used for the interviews, consisting of a set of questions prepared by the task force in advance. In the circumstance, including the required mandatory attendance, the established format, and the subject matter discussed, such interviews constituted formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. Department of Health, Education and Welfare, Region IV, Atlanta, Georgia and Department of Health and Human Services, Region IV, Atlanta, Georgia and National Treasury Union, 5 FLRA No. 58 (1981). The task force members who conducted the interviews were "representatives of the agency." Hence, the formal discussion was between representatives of the agency and "one or more employees in the (bargaining unit." Department of Health, Education and Welfare, Region IV, supra. The record reveals that many of the subjects covered concerned personnel policies or practices or general conditions of employment. Employees were asked to give their opinion and sentiments concerning the awards program, the Technical Advisory Committee, their teams, supervisors, management, the facility in general, and relationships with other agencies, among other things, and were questioned about various training programs, systems error procedures, and various relationships with their supervisors, including the handling of suggestions and performance evaluations by their supervisors. These broad-ranging questions and the general question, "Is there anything else you want to talk about?," elicited not only personal opinions, sentiments, and facts, but various complaints about assignments, physical facilities, equipment, operational training, and various suggestions for improvement in the areas of operational training, forms, equipment, and professional attitude. Many of the subjects discussed are covered by the parties' negotiated agreement. For example, Articles 25 and 26 deal with performance evaluations, Article 33 (watch schedules and shift assignments), Article 50 (recognition and awards program), Article 52 (training), Article 53 (on the job training), Article 55 (controller performance), and Article 71 (system error review board). /2/ Inasmuch as the interviews with bargaining unit employees in question were formal discussions and concerned personnel policies or practices or other conditions of employment affecting employees in the unit generally the Union was entitled to be represented at them pursuant to section 7114(a)(2)(A) despite the fact that no bargaining, as such, took place. Department of Health, Education and Welfare, Region IV, supra. The exclusion of the exclusive representative from such discussions, in effect, would result in bypassing of the exclusive representative with regard to the very matters for which it was chosen by the unit employees to act as their spokesman. Cf. Internal Revenue Service, Atlanta District Office, Atlanta, Georgia, A/SLMR No. 1014, 8 A/SLMR 370, review denied, FLRC No. 78A-58, 6 FLRC 812 (1978); Internal Revenue Service, Odgen Service Center, A/SLMR No. 944, 7 A/SLMR 1032 (1977); Department of Health, Education and Welfare, Social Security Administration, Bureau of Retirement and Survivors Insurance, Northeastern Program Service Center, 1 FLRA No. 59 (1979). Section 7114(a)(2)(A), like its precursor section 10(e) of Executive Order 11491, as amended, makes no reference to "changes" in personnel policies and practices or other matters affecting employees' general working conditions as a precondition to a labor organization's right to be represented at formal discussions between management and unit employees with respect thereto. See Internal Revenue Service, Atlanta District Office, Atlanta, Georgia, supra, 6 FLRC at 815. The collective bargaining relationship envisaged by the Statute requires that each party have the ability to function as an equal partner within that relationship. United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA No. 70 (1980). The exclusive representative, pursuant to section 7114(a)(1) "is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit." The right of the exclusive representative to "act for" all unit employees includes the right, pursuant to section 7121(b)(3), to present and process grievances on its own behalf and the right of its employee representatives, pursuant to section 7102(1), "to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities." Therefore, while Respondent may have viewed the unit employees' responses concerning personnel policies, practices, or other general conditions of employment important only to its own evaluation of management techniques and operational procedures, the Union, as an equal partner, was entitled to assess the unit employees' responses concerning such matters in light of its own rights and responsibilities as their exclusive representative and to act accordingly. Thus, by its actions in denying the exclusive representative the unconditional opportunity to be represented at, and represent its members' interest at, formal discussions under section 7114(a)(2)(A) of the Statute concerning personnel policies, practices and other general conditions of employment, during the week of February 4, 1980, the Respondent violated section 7116(a)(1), (5), and (8) of the Statute. Department of Health, Education and Welfare, Region IV, Atlanta, Georgia, supra. Based on the foregoing findings and conclusions, I recommend 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, the Authority hereby orders that the United States Department of Transportation, Federal Aviation Administration, Southwest Region, shall: 1. Cease and desist from: (a) conducting formal discussions between one or more representatives of management and one or more employees in the unit or their representatives concerning any personnel policies or practices or other general conditions of employment without giving the Professional Air Traffic Controllers Organization, the exclusive representative of its employees, an unconditional opportunity to be represented at such discussions; (b) in any like or related manner interfering with, restraining, or coercing any employee in the exercise of any right under the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purpose and policies of the Statute: (a) Give the Professional Air Traffic Controllers Organization the unconditional opportunity to be represented at any formal discussion between one or more representatives of management and one or more employees in its bargaining unit or their representatives concerning any personnel policy or practices or other general conditions of employment. (b) Post at its facilities in the Southwest Region copies of the attached Notice marked "Appendix" on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Regional Director, Southwest Region, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The Regional Director shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (c) Pursuant to 5 C.F.R.Section 2423.30 notify the Regional Director, Region Six, Federal labor Relations Authority, in writing, within 30 days from the date of this order, as to what steps have been taken to comply herewith. GARVIN LEE OLIVER Administrative Law Judge Dated: May 19, 1981 Washington, D.C. APPENDIX PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS We Hereby Notify Our Employees That: WE WILL NOT conduct formal discussions between one or more representatives of management and one or more unit employees, or their representatives, concerning any personnel policies or practices or other general conditions of employment without giving the Professional Air Traffic Controllers Organization, the exclusive representative of our employees, an unconditional opportunity to be represented at such discussions. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce any employee in the exercise of any right under the Federal Service Labor-Management Relations Statute. WE WILL give the Professional Air Traffic Controllers Organization an unconditional opportunity to be represented at any formal discussion between one or more representatives of management and one or more employees of its bargaining unit, or their representatives, concerning any personnel policies or practices or other general conditions of employment. (Agency or Activity) Dated: . . . By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region Six, Federal Labor Relations Authority, Bryan and Ervay Street, Old Post Office Building, Room 450, Dallas, Texas 75221. Telephone (214) 767-4996. --------------- FOOTNOTES$ --------------- /1/ Section 7114(a)(2)(A) of the Statute provides: (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at-- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general conditions of employment . . . . /2/ In National Aeronautics and Space Administration (NASA), Washington, D.C. and Lyndon B. Johnson Space Center (NASA), Houston, Texas, A/SLMR No. 457, FLRC No. 74A-95, 3 FLRC 617 (1975), certain "information gathering" meetings or interviews between agency headquarters-level representatives and unit employees at the activity level were found not to be "formal discussions concerning grievances, personnel policies and practices, or other matters affecting general working conditions of employees in the unit," and, accordingly, management was not required to permit the union to be present at such meetings pursuant to section 10(e) of Executive Order No. 11491, as amended. The Council noted, in part, that management "sought to evaluate the effectiveness of an agencywide program (EEO program) which existed totally apart from the collective bargaining relationship at the level of the exclusive recognition."