Federal Aviation Administration, Greater Pittsburgh Tower (Respondent) and Professional Air Traffic Controllers Organization, Marine Engineers Beneficial Association, AFL-CIO, Local 245 (Complainant) 

 



[ v01 p342 ]
01:0342(43)CA
The decision of the Authority follows:


 1 FLRA No. 43
 
 FEDERAL AVIATION ADMINISTRATION,
 GREATER PITTSBURGH TOWER
 Respondent
 
 and
 
 PROFESSIONAL AIR TRAFFIC CONTROLLERS
 ORGANIZATION, MARINE ENGINEERS
 BENEFICIAL ASSOCIATION, AFL-CIO,
 LOCAL 245
 Complainant
 
                                            Assistant Secretary
                                            Case No. 21-05970(CA)
 
                            DECISION AND ORDER
 
    ON JANUARY 11, 1979, ADMINISTRATIVE LAW JUDGE PETER MCC. GIESEY
 ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
 PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
 LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE
 COMPLAINT BE DISMISSED IN ITS ENTIRETY.  NO EXCEPTIONS WERE FILED TO THE
 ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.
 
    THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
 LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
 WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
 PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
 IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
 REGULATIONS (44 F.R. 7).  THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
 THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
 
    THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
 HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
 HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS
 ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
 JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
 CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
 AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
 CONCLUSIONS AND RECOMMENDATION.  /1/
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
 NO. 21-05970(CA) BE, AND IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., MAY 21, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    JOSEPH WINKLER, ESQUIRE
 
    LABOR RELATIONS SPECIALIST
 
    DEPARTMENT OF TRANSPORTATION
 
    FEDERAL AVIATION ADMINISTRATION
 
    FEDERAL BUILDING
 
    JOHN F. KENNEDY INTERNATIONAL AIRPORT
 
    JAMAICA, NEW YORK 11430
 
                            FOR THE RESPONDENT
 
    ROBERT H. P. FINNEGAN
 
    ASSISTANT TO EASTERN REGIONAL VICE PRESIDENT
 
    1455 VETERANS HIGHWAY
 
    HAUPPAUGE, NEW YORK 11787
 
                            FOR THE COMPLAINANT
 
    BEFORE:  PETER MCC. GIESEY
 
                         ADMINISTRATIVE LAW JUDGE
 
                           CASE NO. 21-05970(CA)
 
                      RECOMMENDED DECISION AND ORDER
 
    THIS IS A PROCEEDING BROUGHT UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (HEREAFTER, "THE ORDER") BY PROFESSIONAL AIR TRAFFIC CONTROLLERS
 ORGANIZATION, LOCAL 245, MEBA, AFL-CIO, A LOCAL OF THE LABOR
 ORGANIZATION REPRESENTING AIR TRAFFIC CONTROLLERS IN A UNIT APPROPRIATE
 FOR PURPOSES OF COLLECTIVE BARGAINING, AGAINST THE AGENCY.  PATCO
 COMPLAINS THAT THE AGENCY VIOLATED SECTIONS 19(A)(1) AND (2) OF THE
 ORDER /2/ BY THE WORDS AND ACTIONS OF A SUPERVISORY AIR TRAFFIC CONTROL
 SPECIALIST ON THE AFTERNOON OF NOVEMBER 30, 1977.
 
    A HEARING WAS HELD IN PITTSBURGH, PENNSYLVANIA ON OCTOBER 3, 1978.
 BRIEFLY, THE RECORD SHOWS THE FOLLOWING.
 
    STATEMENT OF THE CASE.
 
    ON NOVEMBER 30, 1977, AIR TRAFFIC CONTROLLER ROBERT NESTLER WAS
 WORKING AT THE CLEARANCE DELIVERY POSITION IN THE CONTROL TOWER AT
 GREATER PITTSBURGH AIRPORT.  HE TESTIFIED THAT TRAFFIC WAS "FAIRLY
 HEAVY" WHEN HE HEARD A RADAR CONTROLLER SHOUT THAT ONE OF THE AIRCRAFT
 UNDER HIS CONTROL HAD "TIMED OUT".  /3/
 
    MR. NESTLER TESTIFIED THAT HE THEN LOOKED INTO HIS BAY (WORK STATION
 CONTAINED "STRIPS"-- FLIGHT PLANS) AND SAW THAT THERE WERE OTHER
 AIRCRAFT WITH FLIGHT PLANS THAT WERE CLOSE TO BEING TIMED OUT.
 
    HE CALLED THE SUPERVISOR, TOLD HIM THAT HE COULD "SEE A PROBLEM
 DEVELOPING HER" AND RECOUNTED THE "TIMING OUT" THAT HAD ALREADY OCCURRED
 AND THE POTENTIAL FOR OTHER "TIME OUTS".  WHEN THE SUPERVISOR INDICATED
 THAT HE UNDERSTOOD, MR. NESTLER ASKED HIM WHY HE DIDN'T HAVE THE TOWER
 (DATA POSITION OPERATOR LOCATED ELSEWHERE IN THE TOWER) UPDATE THE
 CLEARANCES "LIKE THEY ARE SUPPOSED TO DO AND I DID . . . LAST WEEK".  HE
 CALLED THE SUPERVISOR'S ATTENTION TO EVENTS OF THE PREVIOUS WEEK WHEN
 THEY HAD BEEN WORKING THE DATA POSITIONS AND THE SUPERVISOR HAD
 INSTRUCTED NESTLER TO UPDATE THE CLEARANCES.  THE SUPERVISOR SAID HE
 WOULD CALL THE TOWER.  HE PICKED UP A TELEPHONE IMMEDIATELY BEHIND
 NESTLER'S POSITION AND SPOKE FOR A FEW MOMENTS, TURNED TO NESTLER AND
 SAID, "WHAT'S YOUR PROBLEM?" A SHORT CONVERSATION FOLLOWED AND THE
 SUPERVISOR INDICATED THAT HE SAW NO PROBLEM AND INSTRUCTED NESTLER TO
 UPDATE THE CLEARANCES.  /4/
 
    NESTLER TOLD THE SUPERVISOR TO "PRETEND I DIDN'T SAY ANYTHING".
 ACCORDING TO NESTLER, THE SUPERVISOR BECAME "VISIBLY SHAKEN" AND BROUGHT
 THE TELEPHONE RECEIVER DOWN SHARPLY ON NESTLER'S SHOULDER SAYING "DON'T
 GET SMART YOU SON-OF-A-BITCH".  ACCORDING TO NESTLER, HE "SCREAMED' QUIT
 HITTING ME'", THE SUPERVISOR SAID "I DIDN'T HIT YOU".  WHEN NESTLER
 REPEATED "QUIT HITTING ME" THE SECOND OR THIRD TIME, HIS SUPERVISOR TOLD
 HIM "SHUT UP-- SHUT UP GODDAMN YOU . . . I AM ORDERING YOU TO SHUT UP".
 
    NESTLER TESTIFIED THAT HE WAS "SCARED TO DEATH" AND THAT HE WAS
 "READY TO INVOKE ARTICLE 55 /5/ OR SOMETHING . . . WHEN HE SAID I AM
 ORDERING YOU TO SHUT UP".
 
    NESTLER THEN ASKED TO BE RELIEVED.  A SHORT WHILE LATER, HE WAS
 RELIEVED.  HE WAS ABSENT DURING THE REST OF THE SHIFT AND THE NEXT DAY.
 "TRAUMATIC LEAVE" WAS APPROVED.
 
    MR. NESTLER'S SUPERVISOR TESTIFIED TO ESSENTIALLY IDENTICAL EVENTS.
 HE STATED THAT, AS A DIRECT CONSEQUENT OF THESE EVENTS, HE WAS
 REPRIMANDED BY HIS IMMEDIATE SUPERVISOR.
 
    OTHER WITNESSES CORROBORATED VARIOUS ASPECTS OF MR. NESTLER'S
 TESTIMONY.
 
    FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
    HAVING CONSIDERED THE ENTIRE RECORD INCLUDING THE TESTIMONY, EXHIBITS
 AND BRIEFS OF THE PARTIES AND HAVING OBSERVED THE DEMEANOR OF THE
 WITNESSES, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW AND
 RECOMMENDED DECISION BASED THEREON.
 
    THE FACTS ARE AS SET FORTH IN THE STATEMENT OF THE CASE.  ALL
 WITNESSES WERE CREDIBLE AS TO FACTS.  NEITHER CONTRADICTIONS NOR
 INCONSISTENCIES IN MATTERS OF SUBSTANCE APPEAR IN THE TESTIMONY OF THE
 VARIOUS WITNESSES.
 
    BEFORE THE HEARING, COMPLAINANT'S THEORY OF THE CASE, ACCORDING TO
 THE INFORMAL FILE, WAS BASED UPON THE ERRONEOUS IMPRESSION THAT ARTICLE
 55 OF THE COLLECTIVE BARGAINING AGREEMENT HAD BEEN INVOKED AND THAT THE
 SUPERVISOR'S ACTIONS HAD THE PREDICTABLE EFFECT OF CHILLING THE
 ASSERTION OF RIGHTS UNDER THE CONTRACT.  SEE, DEPARTMENT OF
 TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, INDIANAPOLIS AIR ROUTE
 TRAFFIC CONTROL CENTER, A/SLMR NO. 812.
 
    JUDGING BY ITS POST HEARING BRIEF, COMPLAINANT HAS ABANDONED THIS
 POSITION IN LIGHT OF THE FACT THAT THE RECORD WILL NOT SUPPORT IT.
 
    COMPLAINANT'S POST HEARING POSITION IS, BRIEFLY, THAT BECAUSE MR.
 NESTLER WAS A DESIGNATED "CREW REP" (LIAISON OR UNION STEWARD) HIS
 DISCUSSION WITH HIS SUPERVISOR WAS CONCERTED ACTION ON BEHALF OF ALL THE
 CREW AND THAT HIS SUPERVISOR'S WORDS AND ACTION "HAD THE EFFECT OF
 MAKING HIM APPEAR WEAK AND INEFFECTUAL TO BARGAINING UNIT MEMBERS;  SUCH
 ACTIONS HAVE A 'CHILLING EFFECT' ON BARGAINING UNIT MEMBERS WHO ARE
 SEEKING DISCOURSE ON DECISIONS AFFECTING THEIR DUTIES, TO DO SO AT THEIR
 OWN PERIL."
 
    IN MY OPINION THE ARGUMENT HAS CONSIDERABLE MERIT (DESPITE THE FACT
 OF CITATION TO AUTHORITY) IF IT IS ADDRESSED TO CIRCUMSTANCES OTHER THAN
 THOSE SPREAD ON THIS RECORD.  THUS, THE INSTANT MATTER HAS NOT BEEN
 REPRESENTED TO BE OTHER THAN AN ISOLATED INCIDENT RATHER THAN A COURSE
 OF CONDUCT OR A CAMPAIGN.  THAT IT WAS ISOLATED, UNUSUAL AND SHOCKING TO
 THE CREW IS INDICATED BY NESTLER'S TESTIMONY THAT A HUSH FELL OVER THE
 CONTROL ROOM WHEN IT OCCURRED.
 
    IT IS COMMON KNOWLEDGE THAT CONTROLLERS WORK UNDER TENSION IN A
 PRECISE DISCIPLINE UPON WHICH THE PHYSICAL SAFETY OF MANY PERSONS IS
 DEPENDENT.  SHOULD THE RARE INSTANCES WHEN SUPERVISORS RIGHTLY OR
 WRONGLY RAISE THEIR VOICES OR LOOSE PATIENCE WITH UNIT MEMBERS
 AUTOMATICALLY BE DEEMED AN UNFAIR LABOR PRACTICE, THE SELECTION OF
 SUPERVISORS WOULD FOR MANAGEMENT BECOME A SEARCH FOR LIVING SAINTS.
 
    MOREOVER, THE RECORD IN THIS MATTER CONTAINS NOT A SCINTILLA OF
 EVIDENCE TO SUPPORT A FINDING OF ANTIUNION ANIMUS ON THE PART OF ANY
 AGENT OF MANAGEMENT.  THE FINDING OF A VIOLATION OF SECTIONS 19(A)(1)
 AND (2) OF THE ORDER IN SUCH CIRCUMSTANCES IS PARTICULARLY
 INAPPROPRIATE.  SEE, E.G., PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASH.
 A/SLMR NO. 710;  DSA, DEFENSE PROPERTY DISPOSAL SERVICE, ELMENDORF AFB,
 ALASKA, A/SLMR NO. 713.
 
    ACCORDINGLY, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY
 DISMISS THE COMPLAINT IN ITS ENTIRETY.
 
                             PETER MCC. GIESEY
 
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  JANUARY 11, 1979
 
    WASHINGTON, D.C.
 
    PG:LE
 
    /1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
 OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
 OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
  THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
 
    /2/ AGENCY MANAGEMENT SHALL NOT--
 
    (1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
 OF THE RIGHTS ASSURED
 
    BY THIS ORDER;
 
    (2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
 DISCRIMINATION IN REGARD
 
    TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT.
 
    /3/ FLIGHT PLAN CLEARANCE IS EFFECTIVE FOR A DISCRETE PERIOD OF TIME.
  IF AN EXCESSIVE AMOUNT OF TIME PASSES BETWEEN THE FILING OF THE FLIGHT
 PLAN HAS BEEN RECORDED CANCELS THE FLIGHT PLAN.  THIS CAN RESULT IN A
 AIRCRAFT BEING AIRBORNE UNDER THE CONTROL OF AN AIR TRAFFIC CONTROLLER
 WHO HAS NO PROPER WAY TO "HAND OFF" (DELIVER CONTROL) TO A CONTROLLLER
 IN THE CONTROL AREA INTO WHICH THE AIRCRAFT IS HEADED.
 
    THIS CAN BE PREVENTED BY "UPDATI