16:0479(71)CA - Transportation, FAA, Washington, DC and its Chicago Airways Facilities Sector and Professional Airways Systems Specialists -- 1984 FLRAdec CA

[ v16 p479 ]
The decision of the Authority follows:

 16 FLRA No. 71
 Charging Party
                                            Case No. 5-CA-30431
                            DECISION AND ORDER
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
    Upon consideration of the entire record, including the stipulation of
 facts and the contentions of the parties, the Authority finds:
    The complaint alleges that the Respondent violated section 7116(a)(1)
 and (5) of the Federal Service Labor-Management Relations Statute (the
 Statute) by refusing to bargain with the Professional Airways Systems
 Specialists (PASS) over the substance, impact and implementation of a
 change in hours of work at the Midway Sector Field Unit (Facility).
    Prior to December 31, 1981, the employees of the Facility, then known
 as the Midway Airways Facility Sector, which was and continues to be a
 component of the Chicago Airways Facilities Sector, were part of a unit
 represented by the Federal Aviation Science and Technological
 Association (FASTA).  On that date, PASS was certified as the exclusive
 representative of a unit including those employees formerly represented
 by FASTA and, on April 14, 1983, was certified in a larger consolidated
 unit of the Respondent's employees.  Prior to PASS' initial
 certification, the Respondent and FASTA had negotiated a collective
 bargaining agreement which became effective in 1977 for a two-year
 period and which was automatically renewed thereafter following the
 agreement's expiration date.  Of particular significance here is Article
 54, Section 2 of the FASTA agreement relative to changes in working
 conditions which provides as follows:
          The parties agree to consult prior to implementing changes in
       personnel policies, practices and matters affecting working
       conditions that are within the scope of the Employer's authority
       and that are not specifically covered by this agreement.
    In July 1983, the Respondent notified PASS' local president at the
 Facility of its intention to change the starting and quitting times of
 the existing shift for the six Electronic Technicians at the Facility so
 that all six employees would be working a 7:30 a.m. to 4:00 p.m. shift,
 Monday through Friday.  Up until that point, three employees had worked
 those particular hours, while the other three employees had worked from
 8:00 a.m. to 4:30 p.m., Monday through Friday.  /1/ The local president
 was invited to submit views or recommendations with respect to the
 change.  On August 2, the local president submitted a request to bargain
 over the change.  The Respondent refused to bargain and instead
 indicated its willingness to consider any comments regarding the impact
 and implementation of the change.  The new work hours for the three
 affected employees were implemented on August 22, 1983.  The parties
 stipulated that the change in work hours did not establish an additional
 shift and that the numbers, types and grades of employees and the number
 of positions remained the same as before the change.
    The Respondent argues that its bargaining obligation over the change
 in work hours was limited to consultation by virtue of Article 54,
 Section 2 of the FASTA agreement which, in its view, constituted a clear
 and unequivocal waiver of PASS' right to bargain over the matter.
    In Federal Aviation Administration, Northwest Mountain Region,
 Seattle, Washington and Federal Aviation Administration, Washington,
 D.C., 14 FLRA No. 89 (1984), a case involving the Federal Aviation
 Administration, PASS and the same FASTA agreement as involved herein,
 the Authority determined that the waiver of bargaining rights contained
 in Article 54, Section 2 constituted a permissive subject of bargaining
 which was binding during the life of the agreement but was terminable by
 either party once the agreement expired.  In that case, the Authority
 found that management could not insist upon the continuation of the
 waiver provision contained in that Article when PASS indicated it no
 longer wished to be bound by such a provision, but instead sought to
 exercise its bargaining rights.  The same conclusion must be reached in
 the instant case which involves the identical provision of the expired
 FASTA agreement and the identical assertion by PASS of its right to
 negotiate rather than consult about the change in hours of work.
 Accordingly, and for the reasons more fully set forth in Federal
 Aviation Administration, Northwest Mountain Region, the Authority finds
 that the Respondent was no longer free to insist upon the practice
 contained in Article 54, Section 2 of the expired FASTA agreement so as
 to preclude bargaining over the change in the starting and quitting
 times.  See also Department of Transportation, Federal Aviation
 Administration, Los Angeles, California, 15 FLRA No. 21 (1984).
    With respect to the scope of the Respondent's obligation to bargain
 in this matter, the Authority has previously determined that the
 decision to change starting and quitting times is subject to the duty to
 bargain unless it can be demonstrated that such a change explicitly,
 directly or integrally relates to so as to be determinative of the
 "numbers, types, and grades of employees or positions assigned to any
 organizational subdivision, work project, or tour of duty" within the
 meaning of section 7106(b)(1) of the Statute, /2/ and therefore
 negotiable only at the election of the agency.  /3/ In the instant case,
 where the change in work hours did not establish an additional shift and
 there have been no changes in the numbers, types and grades of employees
 or positions, the Authority finds that the Respondent was obligated to
 bargain with PASS concerning its decision to change the starting and
 quitting times.  As the Respondent failed to do so, the Authority
 concludes that it violated section 7116(a)(1) and (5) of the Statute.
    The General Counsel has requested that the Authority issue a status
 quo ante order.  In view of the Respondent's failure to fulfill its
 statutory bargaining obligation concerning the decision to change the
 work hours of unit employees, the Authority finds that an order
 directing reestablishment of the 8:00 a.m. to 4:30 p.m. hours of work
 for the three Electronic Technicians will effectuate the purposes and
 policies of the Statute.  See Internal Revenue Service, Los Angeles
 District, supra, n. 3.
    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 Department of Transportation, Federa