[ v20 p112 ]
The decision of the Authority follows:
20 FLRA No. 11 FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. Respondent and PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS/MEBA, AFL-CIO Charging Party Case No. 7-CA-40041 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Amended 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 the parties' contentions, the Authority finds: The complaint alleges that the Respondent, Federal Aviation Administration, Washington, D.C. (FAA), violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) /1/ when it failed and refused to bargain upon request concerning procedures to be observed in and appropriate arrangements for employees adversely affected by the removal of commercial telephone service from the Fargo Sector Field Office. The Professional Airways Systems Specialists/MEBA, AFL-CIO (PASS), exclusively represents a nationwide consolidated bargaining unit of employees of the FAA's Airway Facilities Division, which includes 8 bargaining unit employees at the Fargo, North Dakota, Sector Field Office, which is located in the Fargo Air Traffic Control Tower. On June 17, 1983, the FAA notified the President of PASS Local 409 that it planned to terminate the commercial telephone line in the Fargo Sector Field Office effective September 1, 1983, for monetary reasons. The record reflects that the Fargo Sector Field Office had a commercial line for approximately six years prior to such notice. The Union requested bargaining in a letter dated June 26, 1983. The FAA refused to bargain in its reply dated July 5, 1983, stating, among other things, that consultation was sufficient to satisfy the terms of the expired contract between FAA and the former exclusive representative of the unit employees, Federal Aviation Science and Technological Association (FASTA). It noted that telephone service would be terminated effective September 1, 1983. PASS, in a letter dated July 25, 1983, again requested bargaining, contending that "the above proposed change may not lawfully be implemented without prior good faith bargaining between the FAA and PASS, and PASS demands such bargaining to the full extent permitted by law." In its response dated August 10, 1983, to the further request by PASS to bargain, the FAA reiterated its earlier position, adding that the removal of the commercial telephone "will have little, if any, impact on bargaining unit members." The commercial telephone line was not in fact removed until October 26, 1983, due to other problems. As a result of its removal, there is one telephone available in the Fargo Sector Field Office for the 8 bargaining unit employees, i.e., a Federal Tele-Communications System (FTS) line. While this line may be used for all outgoing calls, incoming calls may only be received from non-FTS commercial lines from 8:00 a.m. to 5:00 p.m., Monday through Friday, the hours of the Fargo FTS switchboard. However, in the event of an emergency, employees may be reached from commercial lines when such calls are placed to the Fargo Air Traffic Control Tower. The Tower has a commercial line, which is available on a 24 hour basis, and employees can then be reached by intercom in the Sector Office located in the same building. The record reflects that 4 of the 8 bargaining unit employees begin work on a regularly scheduled basis one half hour or more prior to the opening of the Fargo FTS switchboard. In addition, there were 8 callbacks for unscheduled overtime outside of the FTS switchboard hours during calendar year 1983. The FAA takes the position that the cancellation of the commercial telephone service did not constitute a material change with respect to conditions of employment so as to have created a substantial adverse impact or a reasonable expectation of an adverse impact. In addition, the FAA alleges that, assuming it would have had an obligation to bargain, the provisions of the expired FASTA/FAA agreement remained in effect after the certification of PASS as the exclusive representative, and limited that obligation to consultation with PASS. 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 same expired FASTA agreement as 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 that 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 change herein. Accordingly, and for the reasons more fully set forth in the previously cited cases, the Authority finds that the FAA was no longer free to insist upon the practice contained in the expired FASTA agreement so as to preclude bargaining over the change herein if such change otherwise gave rise to a duty to bargain. With respect to the latter issue, the Authority has held that "where an agency in exercising a management right under section 7106 of the Statute, changes conditions of employment of unit employees . . . , the statutory duty to negotiate comes into play if the change results in an impact upon unit employees or such impact was reasonably foreseeable." U.S. Government Printing Office, 13 FLRA 203, 204-05(1983). The Authority thereafter held that "no duty to bargain arises from the exercise of a management right that results in an impact or a reasonably foreseeable impact on bargaining unit employees which is no more than de minimis." Department of Health and Human Services, Social Security Administration, Chicago Region, 15 FLRA No. 174(1984). The Authority has also held that in determining whether the impact or reasonably foreseeable impact of the exercise of a management right on bargaining unit employees is more than de minimis, the totality of the facts and circumstances presented in each case must be carefully examined. Thus, in Department of Health and Human Services, Social Security Administration, Region V, Chicago, Illinois, 19 FLRA No. 101(1985), the Authority looked to such factors as the nature of the change (e.g., the extent of the change in work duties, location, office space, hours, loss of benefits or wages and the like); the temporary, recurring or permanent nature of the change (i.e., duration and frequency of the change affecting unit employees); the number of employees affected or foreseeably affected by the change; the size of the bargaining unit; and the extent to which the parties may have established, through negotiations or past practice, procedures and appropriate arrangements concerning analogous changes in the past. /2/ The Authority also emphasized therein that the factors considered in the circumstances of that case were not intended to constitute an all-inclusive list or to be applied in a mechanistic fashion. Moreover, the Authority noted that a determination as to whether the exercise of a management right under section 7106(a) of the Statute gives rise to a duty to bargain under section 7106(b)(2) and (3) will not necessarily require in every case a determination as to whether the exercise of the management right results in a change in a condition of employment having an impact or a reasonably foreseeable impact on bargaining unit employees which is more than de minimis, especially where there is no indication that the nature and degree of impact is at issue in the case. However, in cases where it must be determined whether the nature and degree of impact is more than de minimis, factors such as those listed above will be considered. Turning to the instant case, and for the reasons that follow, the Authority concludes that the impact or reasonably foreseeable impact of the removal of commercial telephone service was no more than de minimis. Accordingly, it follows that the FAA was under no obligation to bargain upon request, pursuant to section 7106(b)(2) and (3) of the Statute, concerning the procedures it would observe in implementing the telephone removal or concerning appropriate arrangements for adversely affected unit employees. In reaching this result, the Authority notes, with respect to the nature of the change on conditions of employment of unit employees, that the work duties performed by the 8 employees were not affected in any way. Moreover, the removal of commercial telephone service did not eliminate telephone service in the Fargo Sector Field Office. Rather, it reduced by one the number of telephones available to the employees for outside calls. Additionally, it resulted in the minor inconvenience to persons calling unit employees on commercial lines of going through a switchboard or of having to call the Tower when the switchboard was not open. Further, it only affected the 8 employees of the Fargo Sector Field Office, who are part of a substantially larger nationwide unit. Finally, there is no evidence that the parties may have bargained over similar matters in the past. Based on the totality of the facts and circumstances presented, and noting particularly the limited nature of the change; the few employees affected relative to the total number in the nationwide unit; and the absence of any demonstrated bargaining history or past practice pursuant to which the parties have handled similar changes in the past, the Authority concludes that the impact or reasonably foreseeable impact of the removal of commercial telephone service on the conditions of employment of bargaining unit employees was de minimis. Accordingly, the FAA was under no obligation to bargain pursuant to section 7106(b)(2) and (3) of the Statute, and its refusal to bargain upon request therefore was not violative of section 7116(a)(1) and (5) of the Statute as alleged. ORDER IT IS ORDERED that the complaint in Case No. 7-CA-40041 be, and it hereby is, dismissed. Issued, Washington, D.C., September 11, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (5) provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; * * * * (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter(.) /2/ Additionally, Member McGinnis indicated in a separate concurring opinion that he would also consider, in determining de minimis issues, when the implementation of a change would involve or adversely affect unit employees in assessing the totality of the facts and circumstances presented.