[ v11 p131 ]
The decision of the Authority follows:
11 FLRA No. 34 PROFESSIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, AFL-CIO, LOCAL 246 Respondent and FEDERAL AVIATION ADMINISTRATION, AIR TRAFFIC CONTROL TOWER, PHILADELPHIA, PENNSYLVANIA Charging Party Case No. 2-CO-32 ORDER DISMISSING COMPLAINT The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in the unfair labor practices alleged in the complaint and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision. After the Judge rendered his Decision in this case, the Authority issued its Decision and Order 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), revoking the exclusive recognition status of the Respondent herein, PATCO, for having engaged in strike activity prohibited by section 7116(b)(7) of the Federal Service Labor-Management Relations Statute (the Statute), and finding that PATCO is no longer a labor organization within the meaning of the Statute. The Authority concludes herein that, 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, the Authority shall order that the instant complaint be dismissed as moot. ORDER IT IS HEREBY ORDERED that the complaint in Case No.2-CO-32 be, and it hereby is, dismissed. Issued, Washington, D.C., January 28, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- GEORGE Kerr, Regional Vice-President For the Respondent John M. Bates, Esq. For the General Counsel Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on September 30, 1980 by the Regional Director for the Federal Labor Relations Authority, Region 2, a hearing was held before the undersigned on December 17, 1980 at Philadelphia, PA. This proceeding, arising under the Federal Service Labor-Management Statute, 5 U.S.C.Section 7101 et seq., (herein called the Act), was initiated by the Federal Aviation Administration, Air Traffic Control Tower, Philadelphia, Pa. (herein called the charging party or FAA). The latter filed a charge On june 16, 1980 against Professional Air Traffic Controllers Organization, MEBA/AFL-CIO, Local 245 (herein called the Respondent or Union). Based upon said charge it was alleged in the complaint that, since on or about May 10, 1980, Respondent disciplined an employee-member of the Union by assessing a fine against him and suspending him from Union membership-- all because said individual worked overtime and in violation of Section 7116(b)(1) and (3) of the Act. Respondent filed an answer, dated November 10, 1980, to the complaint herein. In addition to denying the commission of any unfair labor practice, the answer alleged that in imposing a fine the union was pursuing its legitimate interests; and that the matter involved internal affairs of the union with no attempt to cause the employee's discharge from his employment. All parties were represented at the hearing. They were afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter the parties filed briefs which have been duly considered. Upon the entire record in this case, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings, conclusions and recommendations: Findings of Fact 1. At all times material herein Respondent has been, and still is, the collective bargaining representative of all air traffic control specialists. GS-2152 series, including flow controllers, are specialists, data system specialists, planning and procedures specialists employed by the charging party at air traffic control towers, air traffic control centers and combined-station-towers. 2. The Federal Aviation Administration, Department of Transportation and the Professional Air Traffic Controllers Organization, (Marine Engineers Beneficial Association - MEBA), AFL-CIO, were, at all times material herein, and still are parties to a collective bargaining agreement covering the aforesaid unit of employees at the Philadelphia, Pa., International Airport. The said agreement, by its terms, became effective on March 15, 1978 for a period of three years. 3. Article 40 (OVERTIME) of the aforesaid agreement contains, inter alia, the following provisions: Section 2. "Whenever overtime work is to be performed, it shall be made available to qualified employees on an equitable basis." Section 3. "An employee assigned to work overtime may secure a replacement and, provided the replacement is acceptable to the supervisor, will be relieved of the assignment. If the employee is unable to secure a replacement acceptable to the supervisor, the employee will work the overtime." 4. Article 54 (Effect of Agreement) of the aforesaid agreement contains the following provision: Section 1. "Any provision of this agreement shall be determined a valid exception to and shall supersede any existing FAA rules, regulations, orders and practices which are in conflict with the agreement." 5. Prior to January, 1980 management had adopted a particular procedure in respect to overtime work not scheduled in advance. The need for such overtime, referred to as call-in overtime, arose when a controller called his supervisor just prior to or during a watch and reported he was taking sick or other leave. In such an instance the supervisor called controllers whose names appeared on a special list and who were not at work that day. Occasionally calls were made at 4:30 a.m. or 5:00 a.m. to the controller's house. He requested the controller whom he called to volunteer to work the particular day. If no controller volunteered, the supervisor re-called the first employee on the list. The latter, upon being notified that nobody volunteered, would offer his services. Management could assign the overtime work to the first controller on the list. If the said individual did not want the assignment, it was his responsibility to find a suitable replacement. 6. Record facts show there were 20 controllers on the staff, and about 13 controllers were needed to operate the positions during a fairly busy period. Prior to January, 1980 no difficulty was experienced in obtaining controllers to volunteer for call-in overtime. In and around December, 1979 Fred G. Burkins, President of Local 246, discussed with management the use of a new policy regarding call-in overtime. The union objected to the fact that controllers who didn't want to work overtime were called at 4:00 a.m. It took the position that only those employees indicating a desire to do work overtime should be called initially. 7. At an Executive Board Meeting of the Union on January 20, 1980 /1/ a resolution regarding voluntary call-in overtime was proposed for submission to the general membership. Thereafter, on February 13 the members passed the following resolution: "Whereas the members of PATCO Local 246 are desirous of knowing their work schedule in advance and seek schedule versus call-in overtime, and Whereas said members seek to maintain their privacy on scheduled days off, and Whereas facility management has shown a disregard for the contract and facility orders relating to overtime, Therefore be it resolved that the members of Local 246 shall not accept call-in overtime, and that violation of this resolution shall constitute an action detrimental to the interests of this Local and subject the responsible member to disciplinary action as provided in the local constitution." 8. Management began to encounter difficulty in obtaining controllers to work call-in overtime. At times it operated with three less controllers than were required for a particular watch. As a result of discussions between Burkins and John M. Stuck, Deputy Chief of the Tower, the union official proposed that management alter the procedure regarding call-in overtime. It was suggested that the employer maintain two lists of controllers: one list containing the names of those individuals who wanted call-in overtime work, while the other list comprised the names of controllers who did not desire such overtime. However, the employer would not agree since it was determined that such a procedure would violate Article 40, Section 2 of the collective bargaining agreement. 9. Air Traffic Control Specialist Ralph A. Cole, who had been so employed by the charging party for over seven years, was a member of Respondent union. He was present at the meeting whereat the resolution, hereinabove set forth, was passed and was aware of its contents. On May 8, Cole received a call from the assistant chief at the Control Tower. Cole, who was at home and not on duty that day, was asked to work call-in overtime and he volunteered to do so. Accordingly, the controller reported for work on the 7:00 a.m. - 3:00 p.m. watch. 10. By letter dated May 10, Respondent notified Cole that he had failed to comply with provisions of the National and local unions' constitution by engaging in conduct detrimental to the best interests of the local. Specifically, it was claimed by the union that on May 8 Cole had appeared for work on the day watch contrary to the call-in overtime resolution adopted by the membership. The letter also apprised Cole that a hearing would be held before the Executive Board on May 28 regarding the charges, and that he has the right to appeal the determination of the Board. 11. A meeting was accordingly held by the Executive Board on May 28 at which Cold attended. The controller admitted that he had worked call-in overtime on May 8; that he was aware of the union's resolution regarding call-in overtime but did not agree with it. 12. On May 30 Cole was notified by a representative of Respondent union that he had been found guilty by the Executive Board of violating the resolution against working call-in overtime. Further, Cole was informed that a fine of $125 would be levied against him for such violation. 13. By letter dated June 21, Cole advised Respondent that he decided not to pay the fine; that he deemed the union's action against him to be an unfair labor practice. 14. Union President Burkins wrote a letter notifying Cole that he had been fined $125 by the union's Executive Board; that on July 16 the Executive Board met and decided to suspend him from local 246 until he complied with its decision; and that notification of the suspension would be sent to the PATCO National, resulting in Cole's suspension from that organization. 15. In August Burkins called management's attention to a provision in the FAA Handbook which permitted employees who so desired to work overtime. Some difficulty was encountered by the parties since the bargaining agreement required that overtime be made available to all parties. Moreover under Article 54 of the agreement the contractual provisions superseded all orders or regulations of management. However, the parties agreed to accept the Handbook provision and waive the contractual requirement. 16. By virtue of the foregoing, Management and Respondent consented to an arrangement whereby two lists of controllers would be compiled. One list included the names of those individuals who desired to work overtime, and the other list contained the controllers who did not want such work. This resolved the difficulty regarding call-in overtime since the FAA would use the first list when employees had to be called to work overtime. 17. In view of this arrangement regarding call-in overtime, Respondent rescinded the resolution which banned call-in overtime work by its members. Notwithstanding this rescission, Cole still remains suspended as a member of Local 245. /2/ Imposition of the fine has not been revoked by Respondent union nor has Cole paid it. Conclusions The case at bar involved, for the most part, a question of law: whether Respondent union violated Sections 7116(b)(1) and (3) of the Act by fining Cole, and suspending him from union membership, because he voluntarily worked call-in overtime contrary to a union resolution prohibiting its members to do so. Section 7116(b)(3) of the Act provides that it is an unfair labor practice for a labor organization: "to coerce, discipline, fine, or attempt to coerce a member of the labor organization as punishment, reprisal, or for the purpose of hindering or impeding the member's work performance or productivity as an employee or the discharge of the member's duties as an employee." Respondent insists that its resolution banning the members from working call-in overtime, on a voluntary basis, was passed to preserve the integrity of the union. It contends the ban concerned an internal regulation of its own affairs which, in cases arising under the National Labor Relations Act, has been held to be protected rights. Moreover, it is averred, the Supreme Court in Scofield v. National Labor Relations Board, 394 U.S. 423 (1968) stated that a union is free to enforce a rule reflecting its legitimate interest which impairs no policy Congress has embedded in labor laws, and is reasonably enforced against its members who are free to leave the union and escape the rule. Since the rule did not affect Cole's employment status, Respondent argues it has not violated the Act. The General Counsel argues that the cases decided in the private sector are inapposite in light of the fact that Section 7116(b)(3) is entirely different from the prohibition against union discrimination in the National Labor Relations Act, and the latter statute does not contain a provision similar to 7116(b)(3) herein. Moreover, the Supreme Court leaves a union free to enforce its rules provided they do not, as here, impair a policy Congress has embedded in the labor laws. In the instant case the Respondent clearly hindered and impeded Comptroller Cole's work performance and productivity by attempting, via the fine and suspension, to prevent the employee and others from working call-in overtime voluntarily. Thus its actions do impair congressional policy as set forth under 7116(b)(3). It is further maintained that the union's right to enforce discipline, as assured under Section 7116(c) of the Act, is not abrogated so long as disciplinary action does not so hinder or impede the employee's work performance. Finally, General Counsel contends the employee should not be compelled to resign from the union; that the right of appeal does not legitimize the resolution adopted by Respondent. A decision involving the identical question presented herein was issued on March 13, 1981 by Administrative Law Judge Garvin L. Oliver. See Atlanta Center Professional Air Traffic Controllers Organization, Local 101, et al. AFL-CIO, Case No. 4-CO-15. The respondent therein, Local 101 PATCO, established a ban on its members accepting voluntary call-in overtime work. Its prohibition stemmed from dissatisfaction with the staffing of various shifts, and the union felt management should either schedule overtime pursuant to the negotiated agreement, /3/ or increase staffing. A fine was levied by the union in the cited case against a controller who accepted voluntary call-in overtime work in disregard of the ban. The Executive Board of Local 101 concluded the controller violated its constitution by refusal to abide by the union's decision regarding call-in overtime /4/ in that justifiable cause. Judge Oliver concluded that the union in the cited case violated Sections 7116(b)(1) and (3) of the Act. He rejected the defense, similarly asserted herein, that the union rule pertained to an internal matter protected under the Act. Moreover, he stated that Section 7116(b)(3) was intended to protect union members from acts which interfere with their work performance, productivity, or the discharge of the member's duties as an employee. For the reasons, inter alia, expressed by Judge Oliver in the aforesaid decision I likewise conclude that Respondent herein violated Sections 7116(b)(1) and (3) of the Act. Apart from the fact that the National Labor Relations Act does not contain language akin to 7116(b)(3), the union herein has, by its action, flouted a policy set forth by Congress in the labor law. This policy, as enunciated in this Act, is to prohibit the labor organization from hindering or impeding an employee's work performance. The fine levied herein does, in my opinion, constitute such hindrance and interference. Further, I reject the argument that, since Cole could have appealed the Executive Board's decision or resigned from the union, Respondent's actions may not be deemed coercive. These alternatives do not vitiate the interference nor negate the fact that the union's conduct impeded work performance or productivity of employees. Accordingly, I conclude that the suspension of Ralph A. Cole from Respondent union, and the imposition of a fine upon him, was violative of Sections 7116(b) (1) and (3), of the Act. Having found and concluded that Respondent violated Sections 7116(b)(1) and (3) of the Act, it is recommended that the Authority issue the following order: ORDER Pursuant to Section 2423.29 of the Federal Labor Relations Authority's rules and regulations and section 7118 of the Statute, the Authority hereby orders that the Professional Air Traffic Controllers Organization, MEBA/AFL-CIO, Local 246, shall: 1. Cease and desist from: (a) Coercing or disciplining Ralph A. Cole, or any other member of Professional Air Traffic Controllers Organization, MEBA/AFL-CIO, Local 246 for the purpose of hindering or impeding Ralph A. Cole or the member's work performance, productivity, or the discharge of his duties as an employee, by fining or suspending from membership in Professional Air Traffic Controllers Organization, MEBA/AFL-CIO, Local 246, Ralph A. Cole, or any other member in that labor organization, because he accepted and worked call-in overtime. (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 Federal Service Labor-Management Relations Statute: (a) Rescind and nullify the decision and determination by the Executive Board of Professional Air Traffic Controllers Association MEBA/AFL-CIO, Local 246, that Ralph A. Cole is guilty of violating a resolution which prohibited all members of the union from accepting and working call-in overtime. (b) Rescind and cancel the fine levied by the Executive Board of Professional Air Traffic Controllers Association, MEBA/AFL-CIO, Local 246 upon Ralph A. Cole for having accepted and worked call-in overtime and notify him in writing of such action. (c) Upon request, restore and reinstate Ralph A. Cole to full membership in Professional Air Traffic Controllers Association, MEBA/AFL-CIO, Local 246 upon payment by him to the union of any outstanding back dues. (d) Post at its business offices and in normal meeting places, 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 an appropriate representative and shall be posted for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to members are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced or covered by any other material. (e) Pursuant to section 2423.30 of the Authority's rules and regulations, notify the Regional Director, Region 2, Federal Labor Relations Authority, in writing, within 30 days from the date of the Order, as to what steps have been taken to comply herewith. WILLIAM NAIMARK Administrative Law Judge Dated: April 7, 1981 Washington, D.C. APPENDIX NOTICE TO ALL EMPLOYEES 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 coerce or discipline Ralph A. Cole, or any other member of Professional Air Traffic Controllers Organization, MEBA/AFL-CIO, Local 246, for the purpose of hindering or impeding Ralph A. Cole or the member's work performance, productivity, or the discharge of his duties as an employee, by fining or suspending from membership in Professional Air Traffic Controllers Organization, MEBA/AFL-CIO, Local 246, Ralph A. Cole, or any other member in that labor organization, because he accepted and worked call-in overtime. 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 rescind and nullify the decision and determination by the Executive Board of Professional Air Traffic Controller's Association, MEBA/AFL-CIO, Local 246, that Ralph A. Cole is guilty of violating a resolution which prohibited all members of the union from accepting and working call-in overtime. WE WILL rescind and cancel the fine levied by the Executive Board of Professional Air Traffic Controllers Association, MEBA/AFL-CIO, Local 246 upon Ralph A. Cole for having accepted and worked call-in overtime and notify him in writing of such action. WE WILL, upon request, restore and reinstate Ralph A. Cole to full membership in Professional Air Traffic Controllers Association, MEBA/AFL-CIO, Local 246 upon payment by him to the union of any outstanding back dues. (Labor Organization) 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 question concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region 2, whose address is: 26 Federal Plaza, Room 241, New York, New York, 10278. --------------- FOOTNOTES$ --------------- /1/ Unless otherwise indicated, all dates hereinafter mentioned occur in 1980. /2/ The record reflects that Cole is still a member of the National union and has not been suspended therefrom. /3/ Local 101, PATCO is governed by the same contract as exists between the parties herein and referred to in paragraphs 2, 3 and 4, infra. /4/ The fine was never imposed since the employee resigned from the union.