20:0430(45)CA - FAA and Professional Airways Systems Specialists, MEBA -- 1985 FLRAdec CA

[ v20 p430 ]
The decision of the Authority follows:

 20 FLRA No. 45
 Charging Party
                                       Case No. 3-CA-40126
                            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 the contentions of the parties, the
 Authority finds:
    The complaint alleges that the Federal Aviation Administration (the
 Respondent or FAA) violated section 7116(a)(1) and (5) of the Federal
 Service Labor-Management Relations Statute (the Statute) /1/ by failing
 and refusing to provide the Professional Airways Systems Specialists,
 MEBA, AFL-CIO (PASS) with notice and an opportunity to negotiate over
 the impact and implementation of its decision to assign a bargaining
 unit employee stationed at its Bridgeport, West Virginia facility to new
 duties at its Elkins and Ellimore, West Virginia facilities.  In its
 brief, the Respondent no longer relies on its earlier defense that PASS,
 based upon a collective bargaining agreement between the Respondent and
 the prior exclusive representative of the unit employees, Federal
 Aviation Science and Technological Association, had waived its right to
 bargain on the matter herein.  Instead, the Respondent maintains that it
 had no duty to bargain with PASS concerning the subject change because
 the assignment of new duties to the employee did not result in a
 substantial impact on the employee's working conditions.
    On December 31, 1981, PASS was certified as the exclusive
 representative for a unit of employees including those located at the
 facilities involved herein.  On April 14, 1983, PASS was certified as
 the exclusive representative for separate nationwide consolidated units
 of the Respondent's professional and nonprofessional employees.
    The stipulated record reveals that the principal duties of the
 Respondent's unit employees are the repair and maintenance of radar,
 communication, navigational, computer and other electronic equipment
 used in FAA's national air traffic control system.  On or about November
 1, 1983, the Respondent assigned James Beuhring, an electronic
 technician stationed at its Bridgeport, West Virginia facility, to new
 duties at its facilities located at Elkins and Ellimore, West Virginia.
 As a result of this assignment, the employee, whose duty station
 remained the same, was now required to travel from Bridgeport to Elkins
 and/or Ellimore approximately three to five times a week.  One way
 travel from Bridgeport to Elkins is approximately 55 miles;  one way
 travel from Bridgeport to Ellimore is approximately 42 miles.  Prior to
 the new assignment described above, Beuhring had been assigned, on or
 about February 25, 1983, to some duties at the Elkins and Ellimore
 facilities.  These duties required occasional travel from Bridgeport to
 Elkins and Ellimore, West Virginia.
    By letter dated May 16, 1983, Howard Johannssen, PASS' National
 President, notified the Respondent's Administrator that "unless specific
 notice to the contrary (was) given, (he was) the only PASS
 representative authorized to engage in collective bargaining on behalf
 of the unit," and that "notice of any proposed changes in . . . working
 conditions of unit employees . . . be directed to (him)." Subsequently,
 by letter dated November 2, 1983, Johannssen requested to bargain over
 the impact and implementation of the change in the subject employee's
 working conditions mentioned above.  This request was received by the
 Respondent;  however, the latter did not reply to it.
    By memorandum dated November 2, 1983, employee Beuhring filed a
 grievance relating to the assignment of duties in Elkins and Ellimore,
 West Virginia.  In particular, the grievance concerned the Respondent's
 (1) refusal to issue Beuhring temporary duty orders or permanent change
 of station orders in regard to his new assignments;  and (2) refusal to
 allow Beuhring to use his privately owned vehicle for travel on official
 business from Bridgeport to the new locations.  On or about November 10,
 1983, the Respondent denied this grievance.
    The General Counsel asserts that the Respondent was obligated to
 negotiate over the impact and implementation of the change set forth
 above inasmuch as said change resulted in both actual and reasonably
 foreseeable impact on the unit employee;  therefore, the General Counsel
 contends that the Respondent's failure to provide notice to PASS and
 afford it an opportunity to bargain as stated above constitutes a
 violation of the Statute.  With regard to actual impact, the General
 Counsel contends that the employee's new assignment required a
 significant amount of additional travel, and that to do so he had to use
 an unsafe General Services Administration (GSA) car.  /2/ General
 Counsel contends that such change raised foreseeable impact issues,
 including, inter alia, the need for additional training, safety
 procedures, and equipment.
    The Respondent contends, as noted above, that the assignment herein
 did not result in a substantial impact on the employee.  Rather, it
 asserts that the employee already had responsibilities at Elkins and
 Ellimore since February 1983, and that the only tangible difference in
 his working conditions identified in the record is the increased
 frequency of his travel after November 1.  Further, the Respondent
 contends that any impact concerning travel requirements on the employee
 which was raised in a grievance filed by him is barred from
 consideration by section 7116(d) of the Statute.  /3/ Finally, it
 asserts that the mechanical problems experienced by the employee with
 the GSA vehicle are of no consequence since the employee never claimed
 that the vehicle was unsafe and, if it were, GSA regulations provide
 that he would not have been required to use it.
    The Authority has previously 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 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 Departme