20:0474(52)CA - DOT, FAA, Washington, DC and PASS/MEBA -- 1985 FLRAdec CA

 20 FLRA No. 52
 
 DEPARTMENT OF TRANSPORTATION 
 FEDERAL AVIATION ADMINISTRATION 
 WASHINGTON, D.C. 
 Respondent 
 
 and 
 
 PROFESSIONAL AIRWAYS SYSTEMS
 SPECIALISTS/MEBA, AFL-CIO 
 Charging Party
 
                                       Case Nos. 4-CA-30540
                                                        4-CA-40084
 
                            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 consolidated complaint, as amended, alleges that the Department
 of Transportation, Federal Aviation Administration, Washington, D.C.
 (the Respondent or FAA) violated section 7116(a)(1) and (5) of the
 Federal Service Labor-Management Relations Statute (the Statute) /1/ by
 refusing to negotiate with the Professional Airways Systems Specialists
 (PASS) at the national level of exclusive recognition concerning
 procedures and appropriate arrangements for adversely affected employees
 regarding the reassignments of two unit employees from their previous
 duty stations to Norfolk, Virginia and the relocation of the Norfolk
 office.
 
    The General Counsel contends that the Respondent was obligated to
 give notice to the properly designated Union official, Johannssen,
 regarding the reassignment of bargaining unit employees and the
 relocation of the Norfolk Sector Office, that the Respondent was
 obligated to bargain collectively, rather than merely consult with the
 Union, and that as to the reassignment of the two employees, a status
 quo ante remedy is warranted.  /2/ The General Counsel also contends
 that the nature of the changes alleged in the complaint resulted in
 substantial adverse impact on affected employees.  Relying strictly on a
 waiver defense, the Respondent contends that its notice requirement and
 bargaining obligation concerning the subject changes were limited to
 consultation with the local representative by virtue of provisions in
 its expired agreement with the Federal Aviation Science and
 Technological Association (FASTA) which, in its view, constitute a clear
 and unequivocal waiver of FASTA's right under the Statute to negotiate
 over the changes in working conditions herein, and that such waiver is
 binding on PASS.  The Respondent did not contest the position of the
 General Counsel that the changes involved herein resulted in impact that
 was more than de minimis.  The Respondent also contends that a return to
 a status quo ante remedy would be disruptive of agency operations and
 would be inappropriate since the agency's position, as to the
 applicability of the provisions of the FAA/FASTA agreement, and its
 limited obligation to consult rather than negotiate with PASS, rested on
 its good faith interpretation of prior case law.
 
    On December 31, 1981, PASS was certified as the the exclusive
 representative for a unit of employees including those involved herein.
 Prior to that time, the unit of employees had been represented by FASTA
 which had negotiated an agreement with FAA in 1977 for a two year
 period.  That agreement was automatically renewed by its terms following
 the expiration date.  The stipulated record reveals that PASS, by
 letters dated February 2 and May 28, 1982, notified the Respondent that
 PASS' designated representative for receiving notice of, and for
 bargaining over, all proposed changes in conditions of employment of
 bargaining unit employees was its National President, Howard Johannssen.
  It also informed the Respondent that notice to or bargaining at the
 local level was not appropriate.  Subsequently, the Respondent notified
 its regional managers and PASS that the FAA intended to comply with the
 provisions in the FAA/FASTA agreement.  The Respondent interpreted that
 agreement as requiring that notice of local changes in working
 conditions be given at the local level, and that FAA was only required
 to consult over such changes.  PASS' local president, Larry Henry,
 notified the Respondent's Norfolk Virginia Airways Facilities Sector
 Manager, Carl Bischof, that the Union wanted to negotiate over the
 impact and implementation of any reassignments.  He stated that
 Johannssen was the person the Respondent was to notify.  Bischof
 subsequently notified Henry of the reassignments, but he did not notify
 Johannssen.
 
    With regard to the Respondent's reassignment of two unit employees
 within the Norfolk Sector Field Office, the parties stipulated that the
 employees were reassigned due to the installation of the Second
 Generation VORTAC program, a new air navigational system, which required
 the centralization of maintenance and repair workers to the Norfolk
 facility.  One employee was transferred from the Franklin, Virginia duty
 station to the Norfolk duty station.  The employee's residence is one
 and one-half miles from the Franklin Station and his old commute took
 between three to five minutes.  He is now sixty-five miles from Norfolk,
 his new duty station, and the commute takes about one and one-half
 hours.  /3/ The other employee who was transferred from the Newport News
 duty station to the Norfolk duty station went from a commute of about
 thirty minutes to one which now takes about one hour.
 
    With regard to the relocation of the Norfolk Sector office from the
 Norfolk Airport New Terminal Building to a location one and one-half
 miles away, it appears that Henry requested negotiations over procedures
 to be used in implementing the move and concerning appropriate
 arrangements for employees adversely affected thereby, and again named
 Johannssen as the contact person.  Bischof replied that he would discuss
 the issue but he did not agree to negotiate.  While Henry responded that
 PASS would present proposals on the relocation, the parties also
 stipulated that Henry did not submit proposals because Johannssen was
 not notified and because the Respondent only agreed to consult over the
 changes.
 
    In Federal Aviation Administration, Northwest Mountain Region,
 Seattle, Washington and Federal Aviation Administration, Washington,
 D.C., 14 FLRA 644(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 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 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).  In the instant case, when
 PASS notified the Respondent that Johannssen was its designated
 representative for purposes of bargaining over changes in conditions of
 employment of bargaining unit employees, PASS was exercising its
 statutory right to designate its own representative, and its right to
 terminate the practice established by the FASTA agreement.  See also
 Department of Transportation, Federal Aviation Administration, San
 Diego, California, 15 FLRA No. 86(1984).
 
    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 such impact was reasonably foreseeable." U.S. Government Printing
 Office, 13 FLRA 203, 204-05(1983).  The Authority thereafter held in
 Department of Health and Human Services, Social Security Administration,
 Chicago Region, 15 FLRA No. 174(1984), 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." In the instant case, noting particularly that the
 Respondent did not dispute the General Counsel's contention that the
 unilateral changes herein resulted in an adverse impact on unit
 employees which was more than de minimis, the Authority finds that the
 Respondent's failure to afford the Union an opportunity to negotiate
 over procedures and appropriate arrangements for adversely affected
 employees regarding the changes constituted a violation of section
 7116(a)(1) and (5) of the Statute.  See United States Department of
 Transportation, Federal Aviation Administration, 19 FLRA No. 89(1985);
 United States Department of Transportation, Federal Aviation
 Administration, 19 FLRA No. 116(1985).  /4/
 
    PASS and the General Counsel have requested a status quo ante remedy
 which the Respondent opposes.  /5/ The Authority finds that such a
 remedy is not warranted herein.  Thus, balancing the nature and
 circumstances of the violation against the degree of disruption in the
 Respondent's operations that would be caused by such a remedy, and
 taking into consideration the factors set forth in Federal Correctional
 Institution, 8 FLRA 604(1982), the Authority concludes that an order
 giving the employees' exclusive representative an opportunity to bargain
 concerning the procedures and appropriate arrangements for adversely
 affected employees will remedy the violation in this case and fully
 effectuate the purposes and policies of the Statute.  In this regard, as
 noted by the General Counsel, the Authority finds that a status quo ante
 remedy concerning the relocation would unduly disrupt or impair the
 efficiency of the Respondent's operation.  As to the reassignments, the
 Authority notes that if the two employees were returned to their old
 posts of duty, the reassigned employees would both have to travel to and
 from Norfolk on official time in order to meet their responsibilities
 and this would impair the Respondent's operational needs.  Thus, as
 previously noted, the Respondent's decision to reassign the employees to
 Norfolk was based upon the installation of a new air navigational system
 which required the centralization of maintenance and repair workers at
 the Norfolk facility.  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 Norfolk Sector Field Office, where
 the instant violations have occurred, will best effectuate the purposes
 and policies of the Statute.  This is consistent with the Authority's
 findings in similar situations involving FAA's unlawful insistence on a
 waiver of PASS' statutory rights.  See Federal Aviation Administration,
 Northwest Mountain Region, 14 FLRA 644;  Department of Transportation,
 Federal Aviation Administration, Los Angeles, California, 15 FLRA No.
 21.  Accordingly, the Authority will not direct a nationwide posting and
 a status quo ante remedy for the violations found herein.
 
                                   ORDER
 
    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, Federal
 Aviation Administration, Washington, D.C. shall:
 
    1.  Cease and desist from:
 
    (a) Changing the assignments of unit employees or the location of the
 Norfolk Sector Field Office without first affording the designated
 representative of the Professional Airways Systems Specialists/MEBA,
 AFL-CIO, the exclusive representative of its employees, an opportunity
 to negotiate over the procedures to be observed in implementing the
 changes and appropriate arrangements for unit employees adversely
 affected thereby.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Upon request, negotiate with the Professional Airways Systems
 Specialists/MEBA, AFL-CIO, through its designated representative,
 concerning the procedures to be observed in implementing the decision to
 change the assignments of unit employees and the location of the Norfolk
 Sector Field Office and on appropriate arrangements for unit employees
 adversely affected thereby.
 
    (b) Post at all locations of its Norfolk Sector Field Office, copies
 of the attached Notice on forms to be furnished by the Federal Labor
 Relations Authority.  Upon receipt of such forms, they shall be signed
 by an appropriate official, and shall be posted and maintained for 60
 consecutive days thereafter, in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken to insure that such
 Notices are not altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IV, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C., October 11, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE OF ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT change the assignments of unit employees or the location
 of the Norfolk Sector Field Office without first affording the
 designated representative of the Professional Airways Systems
 Specialists/MEBA, AFL-CIO, the exclusive representative of our
 employees, an opportunity to negotiate over the procedures to be
 observed in implementing the changes and appropriate arrangements for
 unit employees adversely affected thereby.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, negotiate with the Professional Airways
 Systems Specialists/MEBA, AFL-CIO, through its designated
 representative, concerning the procedures to be observed in implementing
 the decision to change the assignments of unit employees and the
 location of the Norfolk Sector Field Office and on appropriate
 arrangements for unit employees adversely affected thereby.
                                       (Activity)
 
    Dated:  By:
                                       (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region IV, Federal Labor Relations Authority, whose address
 is:  1776 Peachtree Street, N.W., Suite 501, North Wing, Atlanta, GA
 30309 and whose telephone number is:  (404) 881-2324.
 
 
 
 
 
 
 --------------- 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/ In addition to seeking a status quo ante remedy based on the
 reassignment, the Charging Party is also seeking such remedy with regard
 to the relocation.
 
 
    /3/ The parties stipulated that both employees would testify that
 they do not desire to purchase a residence in Norfolk due to the current
 interest rates.
 
 
    /4/ PASS' failure to present proposals on the relocation is not
 dispositive, since the Respondent had refused to negotiate over these
 changes and offered only to consult.
 
 
    /5/ The General Counsel seeks only a status quo ante remedy with
 regard to the reassignments and concedes that such a remedy may be
 inappropriate with regard to the relocation due to the expense and
 disruption of such a remedy.  The Charging Party seeks a status quo ante
 remedy with regard to both changes.