11:0144(35)CO - Atlanta Center PATCO, Local 101 and Transportation, FAA, Atlanta Air Route Traffic Control Center -- 1983 FLRAdec CO

[ v11 p144 ]
The decision of the Authority follows:

 11 FLRA No. 35
 Charging Party
                                            Case No. 4-CO-15
                        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 and the General Counsel 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. 1983),
 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.
    IT IS HEREBY ORDERED that the complaint in Case No. 4-CO-15 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 --------------------
    David E. Siegel
          For the Respondent
    Barbara S. Liggett, Esquire
    James R. Puhger, Esquire
          For the General Counsel
    Alan M. Mendel
          For the Charging Party
         Administrative Law Judge
                           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 4, Federal Labor Relations Authority, Atlanta, Georgia, against
 the Atlanta Center Professional Air Traffic Controllers Organization,
 Local 101, Professional Air Traffic Controllers Organization, affiliated
 with Marine Engineers Beneficial Association, PATCO-MEBA, AFL-CIO (Union
 or Respondent), based on a charge filed by the U.S. Department of
 Transportation, Federal Aviation Administration, Atlanta Air Route
 Traffic Control Center (Charging Party or Agency).  The Complaint
 alleged, in substance, that Respondent threatened an employee member
 with reprisal for having worked call-in overtime and, thereby,
 interfered with, restrained, or coerced the employees of the Agency in
 the exercise of the right, guaranteed by U.S.C. 7102, to refrain from
 assisting a labor organization, in violation of 5 U.S.C. 7116(b)(1).
 The Complaint further alleged that a threat to impose a fine in an
 attempt to coerce an employee to refrain from working overtime, and the
 threat to punish an employee for accepting such work, was for the
 purpose of impeding that employee member's work performance,
 productivity, or discharge of duties as an employee, and was therefore
 violative of 5 U.S.C. 7116(b)(3).  Respondent's Answer denied any
 violation of the Statute, but admitted that Respondent adopted a policy
 of having its members decline to work call-in overtime, which, it
 alleged, was a type of overtime that was optional with the employee and
 did not involve an order to perform work.  Respondent further admitted
 that it informed an employee that because of his violation of the
 policy, charges were being preferred against him to Respondent's local
 executive board.
    A hearing was held in this matter in Atlanta, Georgia.  /1/ The
 Respondent, General Counsel, and Charging Party were represented 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.  Respondent is the exclusive representative of an appropriate unit
 of employees, including air traffic controllers at the Agency.  Air
 traffic controllers at the Agency are assigned to six different areas:
 North, South, East, West, Northeast, and Southwest.  Within each area,
 air traffic controllers are further subdivided into teams.  (Tr. 13, 14,
    2.  During the summer of 1979, air traffic controllers at the Agency,
 and especially those controllers assigned to the Northeast area, voiced
 complaints to the Union concerning the level of staffing.  Controllers
 complained that the watch schedules posted for June, July, and August of
 1979 showed an insufficient number of controllers being scheduled to
 work;  that management, instead of scheduling overtime in advance, would
 wait until the day it was needed and then use call-in overtime in an
 effort to fill controller positions;  that since call-in overtime was
 voluntary, insufficient positions were being filled;  that this required
 controllers to double up on position assignments and made it difficult
 for them to take coffee, lunch, and relief breaks;  that it would be
 easier on the controllers if management scheduled the overtime in
 advance with the option for employees assigned overtime to secure
 suitable replacements, if necessary.  (Tr. 15-16, 21-22, 41-46).
    3.  The parties' collective bargaining agreement provided for making
 overtime available on an equitable basis and for its assignment, in
 part, as follows:
                           ARTICLE 40 - OVERTIME
          . . .
          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.  (General Counsel's Ex. 4, p.
    4.  Rather than assigning overtime pursuant to the collective
 bargaining agreement, the practice of the Agency was to have its
 supervisors determine the minimum staffing level needed for each shift,
 based primarily on the amount of traffic and the skill levels of
 individual controllers, and if that number was greater than the number
 of controllers scheduled for a shift, to use call-in overtime to secure
 the necessary personnel.  Controllers were called in turn, beginning
 with the individual who had worked the last number of hours of overtime.
  Controllers were free to accept or decline such call-in overtime
 provided, in part, that, "A specialist declining to work overtime is
 considered on an equal status with a specialist working overtime."
 (General Counsel's Ex. 5).
    5.  Until mid-July 1979 the Union met with Agency management on a
 weekly, and sometimes daily, basis to discuss staffing and other
 problems.  The Union requested that management schedule overtime.
 Management replied that it recognized the problem, but would not
 schedule overtime.  (Respondent's Ex. 3).
    6.  On July 18, 1979, the executive board of the Union determined
 that "(s)taffing has created an adverse condition in the facility and
 call-in overtime is a poor substitute for the condition." The executive
 board voted to adopt a policy "to promote the reduction of participation
 in call-in overtime, until management schedules overtime within the
 formation of the basic watch schedule or increases the facility staffing
 with additional controllers from any source available." (General
 Counsel's Ex. 3(e)).  Controllers were not to voluntarily accept call-in
 overtime;  however, if controllers were ordered to work overtime, they
 were to do so, and no insubordination by a controller ordered to work
 overtime would be condoned.  (Tr. 20;  47).
    7.  On July 26, 1979, Charles E. McGregor, a controller in the
 Northeast area and a Union member, was informed by Kerry D. Floyd, the
 Union representative for Team 3 in the Northeast area, of the Union's
 policy on call-in overtime and agreed to participate.  (General
 Counsel's Ex. 3(c);  Tr. 16, 20, 22).  Subsequently, however, on August
 8, 1979 McGregor responded to a request by a supervisor to work call-in
 overtime and, in fact, worked a full eight hour evening shift as a
 personal favor to the supervisor.  (Tr. 16;  48).
    8.  On August 13, 1979, at a meeting between the Agency and
 Respondent, the Agency's deputy chief, Walter E. Denley, brought up the
 subject of call-in overtime and the problem that supervisors were having
 getting controllers to accept call-in overtime.  Union president Timothy
 D. Benincosa confirmed that the controllers had agreed not to accept
 call-in overtime, particularly in the Northeast area.  Denley responded
 by saying that, in that case, the Agency could not continue its past
 practice of calling and offering overtime to each person on the overtime
 list and would revert back to the contract provision and assign the
 overtime.  (Tr. 27-30).
    9.  The next day, August 14, 1979, as a result of the Agency's
 assignment of overtime to controllers, the Union requested another
 meeting with the Agency to discuss overtime staffing.  Agency and Union
 representatives subsequently met, discussed the staffing in the
 Northeast area as reflected on August and September schedules, and
 reached an understanding that the Northeast area would be staffed with
 an acceptable number of controllers to cover the necessary vacancies.
 As a result, the Union terminated its policy on August 15, 1979 and
 announced to its members that call-in overtime would again be accepted.
 (Tr. 30-31;  51-52).
    10.  On August 20, 1979, the Union's Northeast area representative,
 Henry R. Elliott, charged McGregor with a violation of Article IX,
 Section 1, Part (a) of the Union's Constitution /2/ by working overtime
 on August 8, 1979 without justifiable cause.  (General Counsel's Ex.
 3(a);  Tr. 17, 48-49).  The Union's executive board, following a
 hearing, determined that McGregor had violated the Article and would be
 fined the amount of overtime pay he had received for working the
 overtime shift.  (Tr. 19;  50-51).
    11.  On September 3, 1979, McGregor submitted a completed Standard
 Form 1188 (General Counsel's Ex. 2) to the Agency, revoking his
 authorization for deduction of dues and remittance to the Union.  The
 revocation was not effective until March 1980.  (Tr. 13;  19).  Sometime
 after submitting his Standard Form 1188, McGregor was advised by the
 Union that the fine would not be enforced since he was no longer a Union
 member.  (Tr. 19).
    12.  On October 18, 1979, McGregor's name was mentioned in the course
 of a meeting between The Agency and the Union.  The Union's vice
 president, Don Kovacs, stated that McGregor was "the scab who accepted
 overtime.  He dropped out of the Union when we threatened to sanction
 him." (Tr. 33;  39).
               Discussion, Conclusions, and Recommendations
    Section 7102 of the Statute guarantees to each employee of the
 Federal Government the right, freely and without fear of penalty or
 reprisal, to form, join, and assist a labor organization, or to refrain
 from any such activity, and to be protected in the exercise of such
 right.  A labor organization's interference with these rights is
 violative of section 7116(b)(1).
    The General Counsel alleges that the Union violated Mr. McGregor's
 right to refrain from assisting a labor organization when it threatened
 to fine him for having worked call-in overtime contrary to Union policy.
  The Union denies any violation;  asserts that Union member McGregor was
 properly subject to Union discipline for violating a Union rule
 requiring members to first decline to work voluntary call-in overtime;
 that the rule was adopted to protect the integrity of the bargaining
 unit, prevent Union members from being on the side of the employer in a
 time of difficulty or tension, and avoid divided loyalty;  and that
 McGregor was free to leave the Union and escape the rule.
    Section 7116(c) of the Statute, which makes it an unfair labor
 practice for an exclusive representative to deny membership except for
 failure to meet reasonable occupational standards or to tender dues
 uniformly required, also states:
          This subsection does not preclude any labor organization from
       enforcing discipline in accordance with procedures under its
       constitution or bylaws to the extent consistent with the
       provisions of this chapter.
    This subsection permits a union to enforce discipline as an internal
 union matter where its legitimate internal union affairs are concerned.
 American Federal of Government Employees, AFL-CIO, Local 2000 and Wilder
 M. Nixon, 6-CO-17, decision of Judge William B. Devaney (August 13,
 1980) (and cases cited therein).  Such discipline must be "consistent
 with the provisions of this chapter" and not impair some statutory labor
 policy.  Cf. Scofield v. NLRB, 394 U.S. 423 (1969).
    Congress found, as stated in section 7101(a) of the Statute, that
 "Labor organizations and collective bargaining in the civil service are
 in the public interest." It is apparent from the specific language of
 sections 7114(a)(1), 7114(b)(3), and 7103(a)(12) of the Statute that a
 labor organization which is an exclusive representative of the employees
 in an appropriate unit is entitled to negotiate collective bargaining
 agreements for employees it represents and that an agency and exclusive
 representative have a mutual obligation to negotiate in good faith in an
 effort to reach agreement with respect to conditions of employment
 affecting employees in an appropriate unit.  The obligation to negotiate
 would be rendered meaningless if a party were able to unilaterally
 change established conditions of employment without first affording the
 other party notice of the proposed changes and an opportunity to
 negotiate.  Department of the Air Force, Scott Air Force Base, Illinois
 and National Association of Government Employees, Local R7-23, 5 FLRA
 No. 2 (1981).
    The record reflects that, rather than using scheduled overtime under
 the negotiated agreement, it was an established past practice for the
 Agency to use call-in overtime to supplement the staffing of its various
 shifts and for personnel called to make an individual personal decision
 whether or not to accept or decline such call-in overtime.  The record
 further reflects that the Union, because of employee complaints, became
 dissatisfied with the level of staffing of the various shifts and felt
 that management, in order to properly deal with the adverse working
 conditions, should either schedule overtime, presumably pursuant to the
 negotiated agreement, or increase staffing.  However, instead of
 continuing negotiations pursuant to the statutory scheme, /3/ the Union
 established a ban on its members acceptance of call-in overtime.  This
 change in past practice, instituted without notice to the Agency, or
 affording it an opportunity to negotiate constituted a unilateral change
 in established terms and conditions of employment and a breach of the
 Union's bargaining obligation under the Statute.  /4/ Thus, the Union
 rule was not consistent with the provisions of the Statute.
    The General Counsel alleges that the Union's rule requiring members
 to refrain from accepting voluntary call-in overtime was not a protected
 activity, because it was inconsistent with the statutory policy,
 embodied in section 7116(b)(3) of the Statute, /5/ against hindering and
 impeding a member's work performance, productivity, or discharge of
 duties.  I agree.  If a member cannot accept voluntary work
 opportunities, his work performance or productivity in this respect
 would be completely blocked.  The Statute is designed to prevent this.
 The Statute makes no distinction as to the status of the employee, and
 it makes no difference whether the work performance and productivity so
 hindered or impeded would occur in the course of voluntary overtime, or
 as part of the member's regular tour of duty.
    Inasmuch as the Union's ban on the voluntary acceptance of overtime
 was inconsistent with the provisions of the Statute, its attempt to
 enforce the ban against Mr. McGregor cannot be deemed an enforcement of
 discipline for violation of a lawful union rule dealing with purely
 internal union matters under section 7116(c).  Accordingly, it was
 violative of section 7116(a)(1) as Respondent Union interfered with Mr.
 McGregor's right to refrain from assisting a labor organization.
 Alleged 7116(b)(3) violation.
    The General Counsel alleges that the Union violated section
 7116(b)(3) of the Statute by attempting to fine Mr. McGregor for working
 call-in overtime contrary to Union policy.
    The Respondent Union contends that its policy was directed only
 against voluntary acceptance of call-in overtime on the part of its
 members;  that members could refuse such overtime under the established
 procedure;  that management was free to mandatorily assign overtime;
 that the Union never suggested that members should refuse work if
 ordered;  and that the Union's attempt to fine Mr. McGregor for not
 first declining to work voluntary call-in overtime in no way hindered or
 impeded his work performance, productivity, or the discharge of his
 duties as an employee.
    The record reflects that the threat to fine McGregor came after his
 acceptance of the offer to work voluntary call-in overtime and his
 actual performance of that work.  Whether an attempt to fine him would
 have been made if he had merely accepted the offer to work voluntary
 call-in overtime, without actually working it, for whatever reason, we
 do not know.  It is clear, though, that the fine in question was closely
 connected with his actual performance of the work.  It was specifically
 charged that McGregor "without justifiable cause performed overtime duty
 on the evening watch on August 8, 1979." The record indicates that
 "without justifiable cause" meant that he was not actually ordered, or
 mandatorily assigned to perform the overtime.  However, as noted, the
 fact that the work was performed voluntarily does not matter.  By basing
 the threat to fine him on his performance of overtime duty, Respondent
 Union violated section 7116(b)(3).  Such threat constituted an attempt
 to coerce a member of a labor organization as punishment or reprisal for
 the member's work performance or productivity as an employee or the
 discharge of the member's duties as an employee.  Section 7116(b)(3) of
 the Statute is intended to protect union members from any act by a labor
 organization which in any way interferes with the member's work
 performance, productivity, or the discharge of the member's duties as an
 employee.  Cf. Professional Air Traffic Controllers Organization, MEBA,
 AFL-CIO, A/SLMR No. 878, 6 FLRC 107 (1978).
    Having found and concluded that Respondent violated sections
 7116(b)(1) and (3) of the Statute, it is recommended that the Authority
 issue the following 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 Atlanta Center Professional Air Traffic
 Controllers Organization, Local 101, Professional Air Traffic
 Controllers Organization, Affiliated with Marine Engineers Beneficial
 Association, (PATCO-MEBA), AFL-CIO, shall:
    1.  Cease and desist from:
          (a) Interfering with, restraining, or coercing Charles E.
       McGregor, or any other employee in the exercise of the right
       assured by the Statute to refrain from assisting a labor
          (b) Coercing, disciplining, fining, or attempting to coerce
       Charles E. McGregor, or any other 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 duties
       as an employee.
          (c) 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
          (a) Rescind the determination that Charles E. McGregor violated
       Article IX, Section 1(a) of its Constitution by working overtime
       on August 8, 1979, cancel all fines and penalties noted in its
       records in connection therewith, and advise Charles E. McGregor in
       writing of such action.
          (b) Post at its respective business offices and in normal
       meeting places, including all places where notices to members are
       customarily posed, 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 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.
          (c) Submit signed copies of said Notice to employers for
       posting in conspicuous places where unit employees are located,
       where they shall be maintained for a period of 60 consecutive days
       from the date of posting.
          (d) Pursuant to 5 C.F.R. 2423.30 notify the Federal Labor
       Relations Authority, in writing, withini30 days from the date of
       this order, as to what steps have been taken to comply herewith.
                                       GARVIN LEE OLIVER
                                       Administrative Law Judge