[ v20 p224 ]
The decision of the Authority follows:
20 FLRA No. 29 DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION NEW ENGLAND REGION Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Labor Organization/Petitioner NATIONAL FEDERATION OF FEDERAL EMPLOYEES, INDEPENDENT Labor Organization/Intervenor INDEPENDENT UNION OF AIR TRAFFIC SPECIALISTS Labor Organization/Intervenor Case No.3-RO-50001 DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION BRADLEY WINDSOR LOCKS CONTROL TOWER Activity and INDEPENDENT UNION OF AIR TRAFFIC SPECIALISTS Labor Organization/Petitioner Case No. 31-RO-40007 DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION ATLANTIC-CITY AIR TRAFFIC CONTROL TOWER Activity and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1340, INDEPENDENT Labor Organization/Petitioner Case No. 32-RO-40010 DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION ATLANTIC-CITY AIR TRAFFIC CONTROL TOWER Activity and AMERICAN FEDERATIONOF GOVERNMENT EMPLOYEES, AFL-CIO Labor Organization/Petitioner Case No. 32-RO-40012 DECISION AND ORDER On June 17, 1985, the Authority granted the Application for Review and Request for a Stay of the Regional Director's Decision, Order and Direction of Election filed by the Federal Aviation Administration (FAA) in Case No. 3-RO-50001. /1/ In his Decision, the Regional Director found that a unit of air traffic control specialists, automation specialists and air traffic assistants who are engaged in air traffic control duties, employed with the New England Region, Federal Aviation Administration, petitioned for by the American Federation of Government Employees, AFL-CIO (AFGE), was appropriate for the purpose of exclusive recognition under the Statute. The FAA in its application for review contended, pursuant to section 2422.17(c)(1) of the Authority's Rules and Regulations, that its application for review should be granted on the grounds that unique and extraordinary issues are presented which have not been previously considered by the Authority. The Authority granted review of the FAA's application for review on the basis that it appeared that a compelling reason exists pursuant to the provisions of section 2422.17(c)(1) of the Authority's Rules and Regulations. /2/ The parties were given 15 days to provide the Authority with any additional information and arguments that might be relevant to the determination of this application. Supplementary briefs were filed by the FAA, AFGE, the National Federation of Federal Employees (NFFE) and the Air Transport Association of America (ATA). /3/ The FAA contends that the only appropriate unit is a nationwide unit of all air traffic controllers. It argues that the Regional Director's decision: (1) will not promote safe and efficient agency operations, but will result in a fragmented, diverse approach to work rules, practices, and safety issues; (2) will hinder effective accomplishment of the greatest safety in air traffic movement, and will not promote agency efficiency as required by section 7112 of the Statute; /4/ and (3) will hinder effective labor-management bargaining because control over such bargaining rests at FAA Headquarters. FAA further argues that there is no clear and identifiable community of interest among employees within the New England Region that is separate and distinct from other FAA employees in the other eight regions, but rather that a community of interest exists among all of its air traffic controllers nationwide. The ATA supports the FAA's contention that the establishment of regional bargaining units would have a detrimental effect on both the efficiency and safety of the National Air Traffic System (NATS). ATA contends that only a nationwide unit with its inherent stability, uniformity and control would be appropriate in this case. AFGE and NFFE contend, in support of the Regional Director's Decision, that a region-wide unit is appropriate under the criteria set forth in section 7112(a)(1) of the Statute. AFGE further contends that the FAA has not presented any evidence to demonstrate that a regional unit "creates the unacceptable risk of a diminution in the safe and efficient operations of the air traffic system; decreases the level of cooperation, trust, and standardization in the system; and raises the potential for divisions . . . " In this regard, both AFGE and NFFE argue that section 7106 of the Statute limits the scope of bargaining to the degree that standardization will not be threatened. They also argue that day-to-day operations including labor relations, are performed at the regional level, and that FAA presently has the organizational structure to deal with a regional bargaining unit in an efficient and effective manner. The FAA, an agency within the Department of Transportation, is charged with ensuring the safe and efficient use of the nation's airspace, promoting aviation safety, and operating a nationwide system of air navigation. It operates more than 450 separate air traffic control facilities throughout the contiguous 48 states, Alaska, Puerto Rico and Hawaii. These facilities include Air Traffic Control Towers (ATCTs), Air Route Traffic Control Centers (ARTCCs), and Radar Approach Control Facilities (RAPCONs or TRACONs). The New England Region, which is one of nine regions within the FAA, contains a number of ATCTs as well as a large ARTCC near Boston. Employed within the New England Region are nearly 600 controllers, 25 Automation Specialists and more than 40 Air Traffic Assistants. The record shows that the FAA's air traffic operating procedures as well as its overall personnel and labor relations policies are established at the FAA's Washington, D.C. Headquarters. Handbook regulations and policy statements are prepared at FAA Headquarters governing such technical aspects of air traffic control as aircraft separation requirements and emergency and inclement weather procedures. In addition, the FAA Headquarters staff authors publications concerning such vital personnel matters as equal employment opportunity (EEO), promotion and recruitment policies. Further, the record reveals that an employee handbook, containing an overview of personnel rules and benefits applicable to all FAA employees, has been made available by FAA Headquarters on a nationwide basis. FAA Headquarters employs a labor relations staff which assumes primary responsibility for negotiating and administering collective bargaining agreements covering existing nationwide units of flight service specialists represented by the National Association of Air Traffic Specialists (NAATS) and airway facilities employees represented by the Professional Airways Systems Specialists (PASS). The Headquarters Labor Relations Office also is responsible for the functioning of the labor relations program on a national level and sets policy which is implemented at the regional level. The record indicates that while the FAA's nine regional directors do have a degree of autonomy in the day-to-day operation of their regions and numerous personnel and labor relations matters are handled within each region, these operations are carried out in accordance with FAA national orders and directives. Further, while at present all the air traffic control specialists employed by the FAA are unrepresented by any labor organization, the air traffic control specialists were exclusively represented by the Professional Air Traffic Controllers Organization (PATCO) in a nationwide unit, pursuant to the decision of the Assistant Secretary of Labor for Labor-Management Relations in Federal Aviation Administration, Department of Transportation, 2 A/SLMR 340(1972) that such nation-wide unit was appropriate and his direction of a secret ballot election therein, from 1972 until October 1981, when PATCO was decertified by the Authority in Professional Air Traffic Controllers Organization, 7 FLRA 34(1981), aff'd 685 F.2d 547 (D.C. Cir. 1982). During that period, a collective bargaining relationship existed between the FAA and PATCO concerning the air traffic controllers' conditions of employment at the national level. In his Decision, Order and Direction of Election herein, the Regional Director found that a unit consisting of all air traffic control specialists, automation specialists, and air traffic assistants who are engaged in air traffic control duties, employed within the New England Region, Federal Aviation Administration, was appropriate for the purpose of exclusive recognition under the Statute. He based such findings on the following factors: (1) the regional unit is co-extensive in scope with a major subcomponent of the FAA and conforms to the FAA's regional personnel and labor relations structure; (2) the regional director has significant operational and administrative responsibilities within the region and has broad authority in matters involving overtime pay, awards and staffing; (3) there is common supervision of all regional employees; (4) all controllers within the FAA's New England Region are covered under the same merit promotion, EEO and agency grievance procedures; and (5) the majority of controller reassignments are accomplished on an intra-regional basis. Based on established precedent, see, e.g., cases cited at n. 5, infra, and the particular circumstances of this case, the Authority disagrees with the Regional Director's conclusion that a region-wide unit is appropriate herein. While the Regional Director's Decision does contain factual support for his finding that the employees sought to be represented within the New England Region share a community of interest, his Decision fails to recognize and properly evaluate the facts which clearly demonstrate that this same community of interest is equally shared by all air traffic control specialists employed throughout the FAA. The record indicates that the specific mission of all the air traffic control facilities within the FAA is to ensure the safe and efficient use of the nation's airspace, promote aviation safety, and operate a nationwide system of air navigation; that the working conditions, skills required and the duties performed by the employees of the New England Region at issue herein are the same for all such employees in the nine regions of the FAA; there is interchange and transfer of air traffic control specialists among the various regions; air traffic control specialist positions are advertised on a nationwide basis; that personnel policies and practices are centrally established and administered at FAA Headquarters and apply uniformly to all employees of the FAA, not just to the employees of the New England Region; and that labor relations policy also is centrally established for the entire FAA employee complement at FAA Headquarters. In this regard, while each FAA regional director has some autonomy in handling day-to-day problems involving personnel and labor relations matters, he must strictly adhere to the guidelines and directives promulgated by FAA Headquarters. Further, all air traffic control specialists receive the same training and must maintain the same level of proficiency. Under all of these circumstances, the Authority concludes that the employees of the New England Region do not share a clear and identifiable community of interest separate and distinct from the other employees of the FAA. Further, in disagreement with the Regional Director, the Authority finds that the proposed unit would not promote effective dealings within the FAA. In this regard, as previously discussed, FAA Headquarters establishes and administers common personnel policies and practices for all employees of the FAA, negotiating expertise is concentrated at FAA Headquarters where labor relations policy is established for all employees of the FAA, and there is both an established practice of bargaining at the national level for currently represented FAA employees and a past history of effective nationwide bargaining for air traffic control specialists. In light of these factual determinations, and for the reasons previously stated, the Authority concludes that the Regional Director's finding below that the proposed unit would promote effective dealings within the FAA is inconsistent with the purposes and policies of the Statute, especially the policy of promoting a more comprehensive bargaining unit structure. Finally, with respect to efficiency of agency operations, the Regional Director failed to give adequate weight to the unique importance of the National Air Traffic System and the strict requirement of nationwide uniformity to ensure the safety of the millions of people who use the air transport system. In this regard, a nationwide unit conforming to the centralized operational and organizational structure of the FAA would result in uniform policies, practices and working conditions nationally, and would reduce the potential for inconsistency among the regional offices. The Regional Director also failed to give adequate weight to the fact that the employees in the unit sought enjoy a commonality of mission, personnel policies and practices and matters affecting working conditions with all air traffic control specialists of the FAA. Accordingly, in light of these considerations, and for the reasons previously stated, the Authority concludes that the Regional Director's finding that the proposed unit would promote the efficiency of the FAA's operations is inconsistent with the purposes and policies as set forth in section 7112(a)(1) of the Statute. In conclusion, under all the circumstances of this case, the Authority finds that the region-wide unit petitioned for by the AFGE is inappropriate for the purposes of exclusive recognition under the Statute. /5/ Accordingly, the Authority shall order that the petition in Case No. 3-RO-50001 be dismissed. /6/ ORDER IT IS ORDERED that the petition in Case No. 3-RO-50001 be, and it hereby is, dismissed. Issued, Washington, D.C., September 20, 1985 (s) HENRY B. FRAZIER III Henry B. Frazier III, Acting Chairman (s) WILLIAM J. MCGINNIS JR. William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Regional Director in his Decision, Order and Direction of Election found that the three single facility units petitioned for were inappropriate and dismissed the petitions in Case Nos. 32-RO-40010, 32-RO-40012 and 31-RO-40007. As no application for review was filed with respect to the Regional Director's dismissal of these petitions, such actions have become final and are not at issue herein. /2/ Section 2422.17(c)(1) provides: (c) The Authority may grant an application for review only where it appears that compelling reasons exist therefor. Accordingly, an application for review may be granted only upon one or more of the following grounds: (1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, Authority precedent(.) /3/ The Authority in its June 17, 1985 Order, granted ATA's motion to participate as amicus curiae with regard to this application for review pursuant to section 2429.9 of the Authority's Rules and Regulations. /4/ Section 7112(a)(1) provides: Section 7112. Determination of appropriate units for labor organization representation (a)(1) The Authority shall determine the appropriateness of any unit. The Authority shall determine in each case whether, in order to ensure employees the fullest freedom in exercising the rights guaranteed under this chapter, the appropriate unit should be established on an agency, plant, installation, functional, or other basis and shall determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of, the agency involved. /5/ Anti-Trust Division, Department of Justice, 16 FLRA No. 45(1984) and U.S. Department of Agriculture, Food and Nutrition Service, Minneapolis ADP Field Center, Minneapolis, Minnesota, 5 FLRA 685(1981). /6/ In light of the foregoing conclusion, the Authority finds it unnecessary to rule on the bargaining unit status of the employees in the job classifications of Automation Specialist and Air Traffic Assistant. Further, the FAA's request for oral argument is hereby denied.