19:0482(62)CA - Transportation, FAA and Professional Airways Systems Specialists -- 1985 FLRAdec CA
[ v19 p482 ]
The decision of the Authority follows:
19 FLRA No. 62 UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION Respondent and PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS Charging Party Case No. 6-CA-30179 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, accompanying exhibits, and contentions of the parties, /1/ the Authority finds: The amended complaint essentially alleges that the Respondent, United States Department of Transportation, Federal Aviation Administration (FAA), through its agent at the Fort Worth Air Route Traffic Control Center, Airway Facilities Sector (Fort Worth ARTCC, AFS), violated section 7116(a)(1) and (5) of the Statute /2/ by (1) unilaterally implementing a change in the practice of holiday staffing without notifying the Professional Airways Systems Specialists (PASS), at the national level of exclusive recognition, and providing it the opportunity to negotiate on the impact and implementation of the change; (2) unilaterally changing the basic watch schedule of unit employees without notifying PASS at the national level of exclusive recognition, and providing it the opportunity to negotiate over the change, and (3) by refusing to negotiate with PASS' designated representative concerning the alleged changes noted above. On December 31, 1981, PASS was certified as the exclusive representative of a nationwide unit of the Respondent's employees, including employees located at the Fort Worth, ARTCC, AFS; this nationwide unit was previously represented by the Federal Aviation Science and Technological Association (FASTA). /3/ Prior to PASS' initial certification, the Respondent and FASTA had negotiated an agreement which became effective in 1977 for a two-year period and which was automatically renewed thereafter following the agreement's expiration date. On May 28, 1982, Howard Johannssen, PASS' National President, sent a letter to the Respondent's Administrator, wherein he stated, in part, that he had received "persistent reports of local and regional FAA management proposals to make changes in conditions of employment within the unit" and further stated that "any prior bargaining authority given to any PASS representative other than (himself was) . . . revoked with respect to the national unit," and that he should be "notified of all proposed changes in conditions of employment of bargaining unit members . . . . " On January 7, 1983, /4/ the Acting Manager of the Fort Worth ARTCC, AFS sent a letter to PASS' local representative regarding a proposed watch schedule for the seven-crew concept of the new ARTCC, AFS organization. The letter also advised him that the proposed watch schedule was being forwarded to him for the "purpose of consultation in accordance with (the FASTA) agreement." By letter dated January 19, PASS' local representative, in reply to such letter, informed the Manager at the Fort Worth ARTCC, AFS that the January 7 letter had been forwarded to PASS' National Office; that all negotiation was done at the national level; and that he had no authority to bargain on this issue. By letter dated January 17, PASS' National President demanded bargaining on the proposed watch schedule and further requested the Respondent to refrain from implementing the change pending completion of negotiations. The Respondent did not respond to this letter. On January 26, the Manager of the Fort Worth ARTCC, AFS met with PASS' local representative regarding the proposed change. During such meeting, the representative maintained PASS' position that such change was subject to negotiations. The Manager maintained the Respondent's position that under the FASTA agreement only consultation was required. The watch schedule was posted on January 27, and on February 25 the Respondent's Manager proposed a revision to such schedule. On March 14, PASS' local representative notified the Respondent that the proposed revision had been forwarded to Johannssen who, in a March 16 telephone conversation with the Respondent, reiterated PASS' position that the schedule should be negotiated. On March 17, the revised watch schedule was posted as changed with an effective date of June 26. With regard to the observance of holidays by crew personnel, the Respondent's practice, which commenced on October 22, 1981, required shift personnel, when scheduled, to work on holidays. On January 14, 1983, the Respondent's Field Manager met with PASS' local representatives and proposed to change the October 22 requirement from two to one crew to work holidays. On January 21, several of the Respondent's Managers and PASS' local representatives met again, and during such meeting the local representatives were, among other things, shown a copy of the Manager's proposed letter of January 21, in which he directed all supervisors to schedule only one crew per shift. The local representatives did not waive PASS' right to bargain over this matter. Following this meeting, such letter, which was signed by the Manager, was distributed to all supervisors and, in part, directed them to effectuate the change on January 27. Johannssen was not notified concerning this change. As the stipulated record indicates, the Respondent takes the position that the FASTA agreement contains a clear and unequivocal waiver of FASTA's right under the Statute to negotiate over changes in working conditions as herein; that such waiver is binding on PASS; and that it bargained in good faith with PASS concerning the reduction in holiday staffing and concerning the basic watch schedule since it engaged in consultation with PASS as required by the FASTA agreement. Further, the record reflects that the Respondent relied on the procedures set forth in the FASTA agreement in providing notice to PASS concerning the matters herein. In Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington and Federal Aviation Administration, Washington, D.C., 14 FLRA 644 (1984), a case involving the FAA, PASS and the FASTA agreement involved herein, the Authority determined that the waiver of bargaining rights contained in the FASTA agreement 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 expired agreement when PASS indicated it no longer wished to be bound by such a provision, but instead sought to exercise its bargaining rights. See also Department of Transportation, Federal Aviation Administration, Los Angeles, California, 15 FLRA No. 21 (1984). The instant case involves the same parties and the identical assertion by PASS of its right to negotiate rather than consult about the changes herein. Accordingly, and for the reasons more fully set forth in the previously cited cases, the Authority finds that the Respondent was no longer free to insist upon the practice contained in the expired FASTA agreement so as to preclude bargaining over the changes herein. Further, based on the rationale contained in Department of Transportation, Federal Aviation Administration, San Diego, California, 15 FLRA No. 86 (1984), the Authority finds that the Respondent was no longer free to insist upon the practice contained in the expired FASTA agreement of notifying local union representatives regarding such changes where the record reflects that PASS expressed its statutory right to designate its own representative by notifying the Respondent that PASS' National President was the representative designated to receive notice and to bargain on the matters herein. Having found that the waiver of bargaining rights contained in the expired FASTA agreement was no longer binding on PASS and the Respondent, the Authority concludes that the Respondent had a statutory obligation to provide prior notice to PASS' designated representative and afford PASS an opportunity to negotiate over the proposed change in the watch schedule. See Department of Transportation, Federal Aviation Administration, Los Angeles, California, supra, wherein the Authority found that the agency had a statutory obligation to provide prior notice to the union therein (PASS) and afford it an opportunity to negotiate over the change in watch schedule. In this regard, the record reveals that the Respondent failed to provide prior notice to PASS' designated representative but instead insisted on providing notice to PASS at the local level pursuant to the FASTA agreement; and that the Respondent refused to bargain with PASS over the subject change, insisting instead that its bargaining obligation was limited to consultation. Therefore, the Authority finds that the Respondent, by the above noted actions, refused to fulfill its duty to bargain over the proposed change in the watch schedule in violation of section 7116(a)(1) and (5) of the Statute, and that the Respondent's failure to provide notice to PASS' designated representative also constitutes a violation of section 7116(a)(1) and (5) of the Statute. With respect to the change in holiday staffing, the Authority notes that the dispositive facts and position of the Respondents, as set forth above, are similar to those in Federal Aviation Administration, Northwest Mountain Region, supra. Therefore, having found that the waiver of bargaining rights contained in the expired FASTA agreement was not longer binding on PASS and the Respondent, and for the reasons more fully stated in Federal Aviation Administration, Northwest Mountain Region, supra, the Authority finds that the Respondent was obligated to bargain concerning the procedures to be observed in implementing the holiday staffing change, and concerning appropriate arrangements for employees adversely affected thereby. See Department of the Treasury, Internal Revenue Service, Jacksonville District, Jacksonville, Florida, 15 FLRA No. 187 (1984) and Social Security Administration, 16 FLRA No. 17 (1984). Therefore, the Respondent's refusal to bargain with PASS in this regard, insisting instead that its bargaining obligation was limited to consultation, constitutes a violation of section 7116(a)(1) and (5) of the Statute. The Authority further finds that the Respondent's failure to provide notice to PASS' designated representative concerning this change also constitutes a violation of section 7116(a)(1) and (5) of the Statute. To remedy the unfair labor practice conduct found herein, the General Counsel requests a status quo ante remedy with respect to both changes while PASS requests that such remedy be limited to the change concerning holiday staffing. Further, PASS requests a backpay remedy for those technicians who would have worked holidays under the old policy and were denied the opportunity to do so, and also asks that the remedy be nationwide in scope. With respect to the change in the Respondent's holiday staffing practice, the Authority finds, for the reasons expressed in Federal Aviation Administration, Northwest Mountain Region, supra, that a status quo ante order is warranted. In this regard, the Authority notes in particular, after considering the specific factors enumerated in Federal Correctional Institution, 8 FLRA 604 (1982), that the record herein, as in Federal Aviation Administration, Northwest Mountain Region, supra, does not indicate that such a remedy would create a serious disruption in the Respondent's operation, but would merely require the FAA to return to a policy that it voluntarily followed previously. The Authority further finds, for the reasons expressed in Federal Aviation Administration, Northwest Mountain Region, supra, that a backpay remedy is unwarranted. Further, concerning the change in the basic watch schedule, the Authority, noting in particular that PASS specifically does not seek a status quo ante remedy "because the terms of the revised work schedule are acceptable to the Union," /5/ finds that such a remedy is not required herein. Rather, the Authority finds that it will effectuate the purposes and policies of the Statute to order that the Respondent, upon request, must negotiate with PASS concerning the change in the unit employees' basic watch schedule. With regard to PASS' request that the remedy be nationwide in scope, the Authority finds that a posting of a remedial unfair labor practice notice in the Fort Worth Air Route Traffic Control Center, Airway Facilities Sector, where the instant violations have occurred, will also best effectuate the purposes and policies of the Statute. Thus, consistent with the Authority's findings in similar situations involving FAA's unlawful insistence on a waiver of PASS' statutory rights, the posting of a remedial notice at the location where such unlawful conduct has occurred is warranted. See Federal Aviation Administration, Northwest Mountain Region, supra; Federal Aviation Administration, San Diego, California, supra; Department of Transportation, Federal Aviation Administration, Los Angeles, California, supra; Federal Aviation Administration, Washington, D.C., 17 FLRA No. 26 (1985), petition for review filed sub nom. Professional Airways Systems Specialists, MEBA, AFL-CIO v. FLRA, No. 85-1284 (D.C. Cir. May 8, 1985); and United States Department of Transportation, Federal Aviation Administration, 18 FLRA No. 8 (1985). The Authority notes, moreover, that the unlawful conduct in the instant case occurred prior to the issuance of the Authority's decision in Federal Aviation Administration, Northwest Mountain Region. As there is no indication that the FAA has refused to abide by the Authority's decision in that case or in the other cited cases, or that it will continue to engage in such unlawful conduct in the future, the Authority finds no basis on which to order a different posting requirement than that ordered herein. ORDER Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the United States Department of Transportation, Federal Aviation Administration, shall: 1. Cease and desist from: (a) Changing the holiday staffing practice at the Fort Worth Air Route Traffic Control Center, Airway Facilities Sector, without providing prior notice to the representative designated by the Professional Airways Systems Specialists, the employees' exclusive representative, and affording it an opportunity to bargain concerning the procedures to be observed in implementing such change and appropriate arrangements for unit employees adversely affected thereby.