[ v05 p565 ]
05:0565(72)CA
The decision of the Authority follows:
5 FLRA No. 72
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
INTERNATIONAL AIRPORT
BROWNSVILLE, TEXAS
Respondent
and
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION
Charging Party
Case No. 6-CA-378
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING CONCLUDING THAT THE UNFAIR LABOR PRACTICE
COMPLAINT, RELATING TO THE RESPONDENT'S ALLEGED VIOLATION OF SECTION
7116(A)(1) AND (5) OF THE STATUTE, BE DISMISSED IN ITS ENTIRETY.
THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS WITH RESPECT TO THE
ADMINISTRATIVE LAW JUDGE'S DECISION AND ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7101-7135), 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 DECISION
AND ORDER, AND THE ENTIRE RECORD IN THE CASE, INCLUDING THE GENERAL
COUNSEL'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. /1/
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 6-CA-378 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., APRIL 30, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
JAMES W. DEMIK, ESQUIRE
FOR THE GENERAL COUNSEL
ROY G. VICK, ESQUIRE
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
7101, ET SEQ /2/ , AND THE FINAL RULES AND REGULATIONS ISSUED
THEREUNDER, 5 C.F.R. CHAPTER XIV, FED. REG., VOL. 45, NO. 12, JANUARY
17, 1980.
THE ISSUE IN THIS CASE IS WHETHER RESPONDENT VIOLATED SEC. 16(A)(5)
AND, DERIVATIVELY OF 16(A)(1), BY UNILATERALLY ALTERING AN AGREED UPON
"WATCH" SCHEDULE WITHOUT NOTICE TO THE UNION AND WITHOUT BARGAINING.
A CHARGE WAS FILED ON DECEMBER 28, 1979; THE COMPLAINT AND NOTICE OF
HEARING ISSUED ON FEBRUARY 29, 1980; AND PURSUANT THERETO A HEARING WAS
DULY HELD BEFORE THE UNDERSIGNED ON MAY 13, 1980, IN BROWNSVILLE, TEXAS.
ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED FULL OPPORTUNITY
TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE
EVIDENCE BEARING ON THE ISSUE INVOLVED. AT THE CLOSE OF THE HEARING,
JUNE 13, 1980, WAS FIXED AS THE DATE FOR MAILING POST-HEARING BRIEFS AND
EACH PARTY TIMELY MAILED A BRIEF, RECEIVED ON OR BEFORE JUNE 19, 1980,
WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON THE BASIS OF THE ENTIRE
RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I
MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS
1. THE WATCH SCHEDULES IN QUESTION ARE G.C. EXHIBIT 4 (A-1 COVERS
PAYROLL PERIODS 22 AND 23, 1979 (ROUGHLY OCTOBER); A COVERS PAYROLL
PERIODS 24 AND 25, 1979 (ROUGHLY NOVEMBER); B COVERS PAYROLL PERIODS
26, 1979 AND 1, 1980 (ROUGHLY DECEMBER); AND C COVERS PAYROLL PERIODS 2
AND 3, 1980 (ROUGHLY JANUARY, 1980)).
2. G.C. EXHIBIT 5 IS NOT AN INDEPENDENT EXHIBIT BUT, RATHER,
EXCERPTS CERTAIN MATERIAL FROM GENERAL COUNSEL EXHIBIT 4 AND IN
PARTICULAR G.C. EXHS. 4-A, 4-B AND 4-C. BECAUSE THERE ARE ERRORS IN
DESIGNATION, ALL REFERENCES HEREIN WILL BE TO THE ORIGINAL WATCH
SCHEDULES, G.C. EXH. 4 (A-1 (OCTOBER, 1979); A (NOVEMBER, 1979); B
(DECEMBER, 1979) AND C (JANUARY, 1980).
3. IN SEPTEMBER, 1979, MR. LACHANCE, THEN PRESIDENT AND
REPRESENTATIVE OF PATCO, AND MS. PRICE, BARGAINING UNIT MEMBER, MET, AT
THEIR REQUEST, WITH MR. ANDERSON, FACILITY CHIEF, FOR THE PURPOSE OF
PUTTING TRAINEES ON THE SCHEDULE WITH THEIR OJT (ON THE JOB TRAINING)
INSTRUCTORS AND TO COVER WEAK SPOTS IN THE SCHEDULE.
4. THERE IS NO DISPUTE THAT: 1) MR. ANDERSON READILY AGREED TO PUT
TRAINEES ON THE SCHEDULE WITH THEIR OJT INSTRUCTORS AND THAT THIS WAS
DONE; AND B) THE PARTIES DISCUSSED A PROPOSED WATCH SCHEDULE "LINE BY
LINE" AND THAT THE OCTOBER SCHEDULE (G.C. EXH 4 A-1) WAS THE PRODUCT OF
THEIR DISCUSSION. THERE IS NO DISAGREEMENT THAT THE WATCH SCHEDULE FOR
NOVEMBER (G.C. EXH 4-A) WAS, AS MATERIAL, THE SAME AS THE WATCH SCHEDULE
FOR OCTOBER EXCEPT, OF COURSE, FOR ROTATION OF CONTROLLERS WHICH IS NOT
IN ISSUE.
5. SINCE AUGUST, 1977, THE BROWNSVILLE TOWER HAS BEEN OPERATED 16
HOURS PER DAY (7:00 A.M. TO 11:00 P.M.), SEVEN DAYS PER WEEK. THE
NUMBERS ON THE WATCH SCHEDULES ARE STARTING TIMES, NOT HOURS WORKED,
E.G. "15" MEANS 1500, OR 3:00 P.M.; 8 MEANS 0800, OR 8:00 A.M., ETC.
THE PARTIES AGREED THAT SEVEN LINES, OR POSITIONS, WERE REQUIRED FOR
ADEQUATE COVERAGE. EACH LINE, OR POSITION, CONSTITUTED THE WORK
SCHEDULE FOR A CONTROLLER, WITH STARTING TIMES DAILY AND SCHEDULED DAYS
OFF. EACH WATCH SCHEDULE COVERED TWO PAYROLL PERIODS, ROUGHLY A MONTH;
AND EACH CONTROLLER ROTATED FROM THE BOTTOM LINE, OR POSITION, UPWARD,
WITH LINE ONE GOING TO THE BOTTOM. WITH THE LOSS OF JOURNEYMEN
CONTROLLERS, PRIOR TO SEPTEMBER, 1979, RESPONDENT HAD ONLY FIVE
JOURNEYMEN CONTROLLERS FOR SEVEN LINES, OR POSITIONS, AND HAD SCHEDULED
TWO DEVELOPMENTAL TRAINEES, I.E., CONTROLLERS FULLY QUALIFIED IN SOME
BUT NOT ALL CONTROL POSITIONS, TO LINES OR POSITIONS. AS NOTED, PATCO
OBJECTED TO THIS PROCEDURE AND AT THE SEPTEMBER, 1979, MEETING
RESPONDENT AGREED TO PUT TRAINEES ON THE SCHEDULE WITH THEIR OJT
INSTRUCTORS. DEVELOPMENTAL TRAINEES WERE PLACED ON THE SAME LINE OR
POSITION, AS THEIR OJT INSTRUCTOR, ARE NOT FURTHER CONSIDERED HEREIN.
6. MR. LACHANCE TESTIFIED THAT "WE WORKED OUT THE SCHEDULE (G.C.
EXH. 4 A-1) LINE BY LINE . . . THE FIRST LINE . . . WITH DAYS OFF BEING
SUNDAY AND MONDAY" (TR. 91); " . . . THE SECOND LINE . . . WITH DAYS
OFF BEING MONDAY AND TUESDAY (TR. 91); " . . . LINE 3 . . . WITH DAYS
OFF BEING TUESDAY AND WEDNESDAY" (TR. 91); "WE AGREED THAT LINE 4 WAS
BLANK" (TR. 92); "LINE 5 . . . WITH DAYS OFF BEING THURSDAY AND FRIDAY"
(TR. 92); "AND LINE 7 WAS HELD BY MR. ANDERSON BUT IT MORE OR LESS WAS
FILLED IN AT HIS DISCRETION TO FILL IN THE HOLES IN THE SCHEDULE. THE
HOLES BEING THE WEAK SPOTS IN THE SCHEDULE." (TR. 92). MR. LACHANCE
FURTHER TESTIFIED THAT "ABSENCES . . . COULD BE FILLED AS PER THE
CONTRACT, 21 DAYS IN ADVANCE. ON A RANDOM AND INFREQUENT BASIS FOR A
SPECIFIC PURPOSE AND HAD TO BE BOXED WITH SQUARE BOXES." (TR. 92).
7. MS. PRICE TESTIFIED, IN PART, AS FOLLOWS:
"A. WE DISCUSSED THE PROPOSED WATCH SCHEDULE LINE BY LINE, YES.
"Q. OKAY.
HOW MANY LINES DID YOU PROVIDE FOR?
"A. WE NEED SEVEN LINES.
"Q. OKAY.
"A. TO PROVIDE COVERAGE. AND THERE'S SEVEN LINES AND WE SENT
THROUGH IT LINE BY LINE, EACH LINE WITH ITS OWN CHARACTERISTICS.
"Q. DID YOU HAVE SEVEN QUALIFIED EMPLOYEES TO PUT ON THE LINES?
"A. WE DIDN'T.
"Q. YOU'RE SAYING, THEN, THAT FOR THE DURATION OF THIS DISCUSSION
THAT IT RESULTED IN A SEVEN-LINE SCHEDULE.
IS THAT CORRECT?
"A. WE NEEDED A SEVEN-LINE SCHEDULE TO PROVIDE COVERAGE.
"Q. OKAY.
WHAT HAPPENS IF YOU HAVE ONLY FIVE PEOPLE QUALIFIED TO MAN THOSE
PARTICULAR POSITIONS WITHIN THE TOWER?
"A. ADJUSTMENTS HAVE TO BE MADE.
"Q. OKAY.
WHAT WERE THE PROVISIONS MADE FOR THE ADJUSTMENT OF COVERAGE ON THAT?
"A. INSTEAD OF EVERYONE WORKING THE SAME SCHEDULE, IN OTHER WORDS,
EVERYONE HAVING THE SAME SHIFT AND CONTINUING EVEN ROTATION, DIFFERENT
SHIFTS WERE AGREED ON FOR EACH LINE AND A SPECIFIC DAY OF THE WEEK.
EVEN ROTATION UPWARDS. (TR. 109-110)
"A. . . . LINE 4 IS LEFT BLANK. WE SKIPPED LINE 4 CONSISTENTLY.
"Q. SO YOU'RE TALKING ABOUT SIX LINE SCHEDULES WITH ONE OF THE
INTERMEDIATE LINES LEFT BLANK?
"A. NO, IT WAS STILL A SEVEN LINE SCHEDULE." (TR. 111).
* * * *
JUDGE DEVANEY: IF I CAN COUNT RIGHT THAT COMES OUT TO BE SIX RATHER
THAN SEVEN.
THE WITNESS: BUT IT . . . THE WAY I SEE IT IS THAT SIX OUT OF THE
SEVEN LINES ARE FILLED.
JUDGE DEVANEY: PARDON?
THE WITNESS: THE SEVENTH LINE IS BLANK.
JUDGE DEVANEY: THAT'S RIGHT.
THE WITNESS: AND THE PEOPLE AROUND THAT HAVE TO PICK UP THE SLACK IN
THAT LINE. THAT'S WHERE THE ADJUSTMENT COMES IN." (TR. 113)
8. MR. ANDERSON TESTIFIED, IN PART, AS FOLLOWS:
"THE WITNESS: WE AGREED, I AGREED WITH THEIR PRESENTATION AS TO THE
FIVE-LINE COVERAGE AND THE DEVELOPMENTALS AND WE AGREED THAT THE BASIC
WATCH SCHEDULE HOURS WOULD BE 15 (3:00 P.M.) 8:00 AND 7:00 AND THAT WE
WOULD KEEP AS CLOSE TO A 15, 15, 8:00, 7:00, 7:00 LINE AS STAFFING WOULD
PERMIT, AND THAT THE FIVE LINES, THE FIVE LINES THAT HAVE NAMES ON THEM,
WOULD BE USED TO THE SEVEN-LINE SCHEDULE TO GIVE US THE BEST COVERAGE .
. . " (TR. 130).
" . . . A FULL SCHEDULE TO GIVE ADEQUATE COVERAGE THROUGHOUT FOR TWO
SHIFTS PER DAY WOULD GIVE US A SEVEN-LINE SCHEDULE. (TR. 130-131)
"THE WITNESS: WITH THE PROPOSAL OF PUTTING THE DEVELOPMENTALS BACK
ON THE SCHEDULE FROM THE PREVIOUS SCHEDULE WHERE WE HAD HAD TWO OF THE
DEVELOPMENTALS ASSIGNED TO A LINE AND HAD A FULL SEVEN LINE SCHEDULE . .
.
"JUDGE DEVANEY: ALL RIGHT.
"NOW, ON THE ASSUMPTION THAT YOU ENDED UP WITH SIX POSITIONS
INCLUDING YOURSELF.
"THE WITNESS: RIGHT.
"JUDGE DEVANEY: THE SIX POSITIONS ON THE SCHEDULE FOR OCTOBER AND
NOVEMBER AND FOR NOVEMBER AND DECEMBER, HOW DID YOU COVER THE SEVENTH
DAY, THE SEVENTH POSITION, IN OTHER WORDS?
"THE WITNESS: THE SEVENTH DAY WOULD BE BY ADJUSTING THE PATTERN FOR
A WEEK OR FIVE DAYS OF COVERAGE WHICH 15, 15, 8:00, 7:00 AND 7:00 WAS
THE DESIRABLE WEEKLY COVERAGE FOR A FIVE-DAY SHIFT.
"BUT TO COVER ADEQUATELY FOR STAFFING THEN SOME ADJUSTMENTS WOULD
HAVE TO BE MADE.: (TR. 131-132).
* * * *
"Q. NOW, NUMBER 3 HE'S (SUPERVISOR HATCHETT) NOT IN THE SLOT-- IN C
HE'S NOT IN SLOT NUMBER 4 AT THAT TIME.
"A. HE'S NOT ON NUMBER 4. HE'S MOVED UP TO SLOT NUMBER 3. AND THE
LINE CHANGES.
"AGAIN, I REFER BACK TO MY UNDERSTANDING OF THE CONSULTATION ON THE
SEPTEMBER DATE THAT THERE WOULD BE A REQUIREMENT, AT THAT TIME THERE
WOULD BE A REQUIREMENT FOR A LINE CHANGE TO PROVIDE THE MOST COVERAGE.
(TR. 150)
* * * *
"A. THE ROTATION ON THE SCHEDULE CHANGES. WITH HIM (HATCHETT) BEING
ON LINE 3 WOULD HAVE NO EFFECT. THEY MERELY ADVANCED UPWARD ONE LINE AS
THEIR CURRENT SCHEDULE CALLS FOR.
"IN OTHER WORDS, EACH INDIVIDUAL MOVES UP IN THE ROTATION ON THE
SCHEDULE.
"SO THERE WAS NO ONE THAT WAS CHANGED IN HIS ROTATION FROM THE EFFORT
MOVEMENT ON ONE SCHEDULE TO THE NEXT." (TR. 152-153).
9. ARTICLE 33 OF THE PARTIES' AGREEMENT (G.C. EXH. 2, P. 58)
PROVIDES, IN PART, AS FOLLOWS:
"SECTION 1. . . . ASSIGNMENTS OF INDIVIDUAL EMPLOYEES TO INDIVIDUAL
EMPLOYEES TO THE WATCH
SCHEDULE ARE NOT CONSIDERED AS CHANGES IN THE BASIC WATCH SCHEDULE.
THE BASIC WATCH SCHEDULE
WILL NOT BE CHANGED WITHOUT PRIOR CONSULTATION WITH THE UNION . . .
"
"SECTION 2. ASSIGNMENTS TO THE WATCH SCHEDULE SHALL BE POSTED AT
LEAST 21 DAYS IN ADVANCE
. . . ."
10. EACH WATCH SCHEDULE (G.C. EXHS. 4 A, 4 B AND 4 C) WAS, AS A
MATTER OF COURTESY, DELIVERED BY MR. ANDERSON TO THE PATCO
REPRESENTATIVE TO LOOK OVER BEFORE IT WAS POSTED, NOT LESS THAN 21 DAYS
IN ADVANCE AS REQUIRED BY ART. 33, SEC. 2; MR. ANDERSON TESTIFIED THAT
MR. MCGILLICUDDY, WHO HAD BEEN THE ALTERNATE TO MR. LACHANCE AND WHO
SUCCEEDED MR. LACHANCE AS REPRESENTATIVE FOR LOCAL 459 ON OCTOBER 24,
1979 (RES. EXHS. 1 AND 2), WHEN SHOWN G.C. EXH. 4 B, COMMENTED, "THERE'S
NOTHING WRONG WITH THIS SCHEDULE, I'VE GOT SATURDAY AND SUNDAY OFF . . .
I'VE BEEN WAITING FOR TWO YEARS FOR SATURDAY AND SUNDAY OFF SO I CAN GO
PARACHUTING WITH MY BUDDIES" (TR. 142). MR. LACHANCE TESTIFIED THAT HE
WAS PRESENT WHEN G.C. EXH. 4 C WAS PUT ON THE CONSOLE BETWEEN MR.
MCGILLICUDDY AND MS. PRICE; THAT HE LOOKED AT IT AND NOTICED THAT IT
WAS DIFFERENT FROM THE PREVIOUS SCHEDULE BUT MADE NO COMMENT TO MR.
ANDERSON. MR. MCGILLICUDDY TESTIFIED THAT HE HAD AN OPPORTUNITY TO LOOK
AT G.C. EXH 4 B AND 4 C BEFORE THEY WERE POSTED AND AS TO G.C. EXH. 4 B
TOLD MR. ANDERSON THAT HE WOULD NEED TIME TO STUDY IT.
11. CONSULTATIONS, ONE ABOUT MARCH, 1980, AND ANOTHER ABOUT THE
FIRST OF MAY, 1980, RESULTED IN "COMPLETELY DIFFERENT" WATCH SCHEDULES
(TR. 162-163).
CONCLUSIONS
THERE IS NO DISPUTE THAT PATCO REPRESENTATIVES, LACHANCE AND PRICE,
MET WITH RESPONDENT'S FACILITY CHIEF, MR. ANDERSON, IN SEPTEMBER, 1979,
AT PATCO'S REQUEST, TO DISCUSS THE SCHEDULING OF DEVELOPMENTAL TRAINEES;
THAT RESPONDENT AGREED TO PATCO'S DEMAND THAT TRAINEES BE PUT ON THE
SCHEDULE WITH THEIR OJT INSTRUCTORS; AND THAT A WATCH SCHEDULE WAS
AGREED TO FOR OCTOBER, 1979 (G.C. EXH. 4 A-1). THERE IS ALSO NO DISPUTE
THAT THE PARTIES AGREED FURTHER ON FUTURE SCHEDULING; HOWEVER, THERE IS
A DISPUTE AS TO PRECISELY WHAT WAS AGREED TO AS TO FUTURE SCHEDULING.
THE OVERWHELMING WEIGHT OF THE EVIDENCE AND TESTIMONY SHOWS THAT IN
SEPTEMBER, 1979, THE PARTIES AGREED: A) THAT THERE SHOULD BE A SEVEN
LINE, OR POSITION, SCHEDULE; B) THAT 15 (1500 OR 3 P.M.), 8 (0800 OR
8:00 A.M.) AND 7 (0700 OR 7:00 A.M.) WOULD BE THE STARTING TIMES FOR
EACH SHIFT; AND C) THAT, WITH AVAILABLE STAFFING, THEY WOULD KEEP AS
CLOSE TO 15 - 15 - 8 - 7 - 7 AS POSSIBLE.
FROM THE RECORD, DESPITE THE AMBIGUITY OF MESSRS. ANDERSON AND
LACHANCE AND MS. PRICE IN DESCRIBING IN FULL THE SEVEN LINES, OR
POSITIONS, IT IS CLEAR THAT THE SEVEN LINES, OR POSITIONS, PROVIDED FOR
SCHEDULED DAYS OFF AS FOLLOWS:
LINE (POSITION) 1 SUN-MON
LINE (POSITION) 2 MON-TUE
LINE (POSITION) 3 TUE-WED
LINE (POSITION) 4 WED-THUR
LINE (POSITION) 5 THUR-FRI
LINE (POSITION) 6 FRI-SAT
LINE (POSITION) 7 SAT-SUN
THERE HAD BEEN SEVEN LINES, OR POSITIONS, PRIOR TO THE SEPTEMBER
MEETING FILLED BY THE FIVE JOURNEYMEN CONTROLLERS AND TWO TRAINEES.
WITH THE AGREEMENT THAT TRAINEES BE PUT ON THE SCHEDULE WITH THEIR OJT
INSTRUCTORS, THERE WERE ONLY FIVE JOURNEYMEN CONTROLLERS AVAILABLE TO
FILL THE SEVEN LINES, OR POSITIONS. ON THE OCTOBER SCHEDULE (G.C. EXH.
4 A-1), THE FIVE JOURNEYMEN CONTROLLERS WERE ASSIGNED TO LINES, OR
POSITIONS, 1, 2, 3, 5 AND 6; MR. ANDERSON FILLED LINE, OR POSITION 7;
AND LINE, OR POSITION, 4 WAS BLANK. ON THE NOVEMBER SCHEDULE (G.C. EXH.
4 A) THE FIVE JOURNEYMEN CONTROLLERS WERE AGAIN ASSIGNED TO LINES 1, 2,
3, 5 AND 6; MR. HATCHETT (A SUPERVISOR) TO LINE 7; LINE 4 WAS, AGAIN
BLANK; BUT THE JOURNEYMEN CONTROLLERS HAD ROTATED (E.G., ROSE HAD
ROTATED FROM LINE 1 TO LINE 6, MCGILLICUDDY FROM LINE 2 TO LINE 1;
LACHANCE FROM LINE 5 TO LINE 3; CLARK FROM LINE 6 TO LINE 5; AND ROSE
FROM LINE 1 TO LINE 6).
ON THE DECEMBER SCHEDULE (G.C. EXH 4 B) THE FIVE JOURNEYMEN
CONTROLLERS WERE ASSIGNED TO LINES 1, 2, 3, 5, AND 7; LINE 6 WAS BLANK;
HATCHETT WAS ASSIGNED TO LINE 4; AND THE JOURNEYMEN CONTROLLERS AGAIN
ROTATED (E.G. PRICE HAD ROTATED FROM LINE 2 TO LINE 1; LACHANCE FROM
LINE 3 TO LINE 2; CLARK FROM LINE 5 TO LINE 3; ROSE FROM LINE 6 TO
LINE 5; AND MCGILLICUDDY FROM LINE 1 TO LINE 7).
ON JANUARY SCHEDULE (G.C. EXH. 4 C) THE FIVE JOURNEYMEN CONTROLLERS
WERE ASSIGNED TO LINES 1, 2, 4, 6 AND 7; LINE 5 WAS BLANK; HATCHETT
WAS ASSIGNED TO LINE 3; AND THE JOURNEYMEN CONTROLLERS AGAIN ROTATED
(E.G. LACHANCE FROM LINE 2 TO LINE 1; CLARK FROM LINE 3 TO LINE 2;
ROSE FROM LINE 5 TO LINE 4; MCGILLICUDDY FROM LINE 7 TO LINE 6; AND
PRICE FROM LINE 1 TO LINE 7).
FROM THE FOREGOING IT IS OBVIOUS THAT RESPONDENT ADHERED STRICTLY TO
THE SCHEDULED DAYS OFF FOR EACH LINE, OR POSITION, AND FOLLOWED THE
ESTABLISHED, AND CONCEDED, SYSTEM OF ROTATION, WITH RECOGNITION, AS THE
PARTIES AGREED AT THE SEPTEMBER CONSULTATION, THAT ONE LINE, OR
POSITION, WOULD BE BLANK ON EACH SCHEDULE. THERE IS NO DISPUTE WHATEVER
THAT A SUPERVISOR, MR. ANDERSON OR MR. HATCHETT, WOULD BE ASSIGNED TO
ONE LINE, OR POSITION. MS. PRICE'S ADAMANT INSISTENT THAT THEY NEEDED,
AND PROVIDED FOR, SEVEN LINES, OR POSITIONS, AND HER TESTIMONY THAT,
"INSTEAD OF EVERYONE WORKING THE SAME SCHEDULE, IN OTHER WORDS
EVERYONE HAVING THE SAME
SHIFT AND CONTINUING EVEN ROTATION DIFFERENT SHIFTS WERE AGREED ON
FOR EACH LINE AND A
SPECIFIC DAY OF THE WEEK. EVEN ROTATION UPWARDS." (TR. 110)
SHOWS THAT RESPONDENT'S WATCH SCHEDULES FOR DECEMBER AND JANUARY
(G.C. EXH. 4 B AND 4 C) WERE FULLY CONSISTENT WITH THE UNDERSTANDING
AGREED TO BY THE PARTIES IN THEIR SEPTEMBER CONSULTATION.
NOT ONLY DOES THE PREPONDERANCE OF THE EVIDENCE SHOW THAT RESPONDENT
ADHERED TO THE UNDERSTANDING ARRIVED AT IN THEIR SEPTEMBER, 1979,
CONSULTATION IN ITS DECEMBER AND JANUARY WATCH SCHEDULES, BUT THE
OVERWHELMING WEIGHT OF THE RECORD SHOWS THAT GROUNDS RELIED UPON BY THE
GENERAL COUNSEL TO ESTABLISH THE UNFAIR LABOR PRACTICE ALLEGED IN THE
COMPLAINT WERE EITHER WHOLLY UNSUPPORTED OR WERE CONTRARY TO THE
OVERWHELMING WEIGHT OF THE EVIDENCE. THUS, BY WAY OF EXAMPLE: A) THE
ASSERTION THAT THE OCTOBER SCHEDULE CONSTITUTED A FIXED SCHEDULE AND/OR
THAT THE PARTIES AGREED THAT THERE SHOULD BE A FIVE LINE SCHEDULE WAS
SHOWN BY THE TESTIMONY OF MS. PRICE, ONE OF PATCO'S REPRESENTATIVES AT
THE SEPTEMBER MEETING, AND OF MR. ANDERSON, NOT TO HAVE BEEN THE
AGREEMENT OF THE PARTIES. TO THE CONTRARY, THE RECORD FIRMLY
ESTABLISHED THAT THE PARTIES AGREED TO A SEVEN LINE SCHEDULE; THAT
DIFFERENT SHIFTS WERE AGREED ON FOR EACH LINE, WITH EVEN ROTATION
UPWARDS; B) THE ASSERTION THAT RESPONDENT CHANGED SCHEDULED DAYS OFF
WAS SHOWN TO BE WITHOUT BASIS IN FACT. TO THE CONTRARY, THE RECORD
AFFIRMATIVELY SHOWS THAT RESPONDENT STRICTLY ADHERED TO THE ASSIGNED
DAYS OFF FOR EACH OF THE SEVEN LINES, OR POSITIONS, AND THAT ESTABLISHED
ROTATION WAS FOLLOWED, WITH RECOGNITION, AS THE PARTIES AGREED, THAT ONE
LINE, OR POSITION, WOULD HAVE TO BE BLANK ON EACH SCHEDULE BECAUSE OF
THE LIMITED NUMBER OF JOURNEYMEN CONTROLLERS THEN AVAILABLE; C) THE
ASSERTION THAT RESPONDENT CHANGED THE STARTING TIMES OF SHIFTS AND/OR
THE "MIX" OF SHIFTS, WHILE TRUE, WAS NOT SHOWN TO HAVE BEEN CONTRARY TO
THE AGREEMENT OF THE PARTIES. TO THE CONTRARY, AS MS. PRICE TESTIFIED,
"THE SEVENTH LINE IS BLANK . . . AND THE PEOPLE AROUND THAT HAVE TO PICK
UP THE SLACK IN THAT LINE. THAT'S WHERE THE ADJUSTMENT COMES IN" (TR.
113) AND MR. ANDERSON TESTIFIED, " . . . WE WOULD KEEP AS CLOSE TO A
15, 15, 8:00, 7:00, 7:00 LINE AS STAFFING WOULD PERMIT . . ." (TR. 130)
"AGAIN, I SAY THAT WE AGREED THAT THE SCHEDULE WOULD REFLECT THE
STARTING HOUR OF 15, 8:00 AND 7:00 AND THAT THESE HOURS ON THE SCHEDULE
WOULD BE ASSIGNED FOR THE SCHEDULE TO STAY AS CLOSELY TO THE DESIRED 15,
15, 8:00, 7:00 AND 7:00 SCHEDULE, BUT THAT THERE WOULD BE VARIATIONS ON
EACH LINE, OR ON SOME LINES, TO PROVIDE ADEQUATE COVERAGE FOR THOSE
SHIFTS." (TR. 136) (SEE, ALSO RES. EXH 1). G.C. EXHIBITS 4 B AND 4 C
DEMONSTRATE GOOD FAITH COMPLIANCE WITH THE AGREED GOAL OF STAYING AS
CLOSE TO THE DESIRED 15, 15, 8, 7 AND 7 SCHEDULE AS STAFFING PERMITTED.
INDEED, THIS GOAL WAS MORE NEARLY ACHIEVED ON THE DECEMBER AND JANUARY
SCHEDULES (G.C. EXHS. 4 B AND 4 C) THAN HAD BEEN ACHIEVED ON THE OCTOBER
AND NOVEMBER SCHEDULES (G.C. EXH. 4 A-1 AND 4 A).
FOR ALL OF THE FOREGOING REASONS, I FIND THAT THE GENERAL COUNSEL HAS
FAILED TO ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT RESPONDENT
BREACHED ANY COLLECTIVE BARGAINING AGREEMENT AND/OR THAT IT ALTERED ANY
ESTABLISHED WATCH SCHEDULE IN VIOLATION OF SEC. 16(A)(5) OR (1) OF THE
STATUTE. TO THE CONTRARY, THE PREPONDERANCE OF THE EVIDENCE SHOWS THAT
RESPONDENT'S DECEMBER AND JANUARY WATCH SCHEDULES (G.C. EXH. 4 A AND 4
B) WERE FULLY IN ACCORD WITH THE UNDERSTANDING OF THE PARTIES AGREED TO
AT THEIR SEPTEMBER, 1979, CONSULTATION. /3/
ORDER
HAVING FOUND THAT RESPONDENT DID NOT VIOLATE SEC. 16(A)(5) OR (1) OF
THE STATUTE AS CHARGED, I RECOMMEND THAT THE COMPLAINT HEREIN BE
DISMISSED.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: NOVEMBER 13, 1980
WASHINGTON, D.C.
--------------- FOOTNOTES$ ---------------
/1/ THE AUTHORITY FINDS IT UNNECESSARY TO PASS UPON THE
ADMINISTRATIVE LAW JUDGE'S ALTERNATIVE GROUNDS FOR DISMISSING THE
COMPLAINT CONTAINED IN FOOTNOTE 2 OF HIS DECISION AND ORDER.
/2/ HEREINAFTER, FOR CONVENIENCE OF REFERENCE, SECTIONS OF THE
STATUTE ARE ALSO REFERRED TO WITHOUT INCLUSION OF THE INITIAL "71"
PORTION OF THE STATUTE REFERENCE, E.G., SEC. 7116(A)(1) SIMPLY AS
"16(A)(1)".
/3/ ALTHOUGH NOT NECESSARY IN VIEW OF THE CONCLUSION REACHED
CONCERNING THE SEPTEMBER, 1979, AGREEMENT OF THE PARTIES, THE FOLLOWING
CONSIDERATIONS CONSTITUTE A SEPARATE AND INDEPENDENT BASIS FOR DISMISSAL
OF THE COMPLAINT:
A) THE ABSENCE OF ANY OBJECTION BY PATCO TO EITHER THE DECEMBER OR
JANUARY WATCH SCHEDULE, ALTHOUGH THE RECORD SHOWS WITHOUT
CONTRADICTION
THAT THE SCHEDULES WERE PRESENTED TO PATCO'S REPRESENTATIVES "TO LOOK
OVER" PRIOR TO POSTING.
B) I FULLY CREDIT MR. ANDERSON'S TESTIMONY THAT MR. MCGILLICUDDY,
WHEN SHOWN THE DECEMBER SCHEDULE (G.C. EXH. 4 B), COMMENTED "THERE'S
NOTHING WRONG WITH THIS SCHEDULE, I'VE GOT SATURDAY AND SUNDAY OFF SO I
CAN GO PARACHUTING WITH MY BUDDIES"; BUT EVEN IN THE ABSENCE OF SUCH
COMMENT, THE MOST CURSORY EXAMINATION OF THE DECEMBER SCHEDULE WOULD
HAVE SHOWN THAT LINE 6 WAS BLANK, WHEREAS LINE 4 HAD BEEN BLANK ON THE
OCTOBER AND NOVEMBER SCHEDULES; THAT MR. HATCHETT WAS ASSIGNED TO LINE
4 WHICH HAD BEEN BLANK ON THE OCTOBER AND NOVEMBER SCHEDULE AND THAT HE,
MCGILLICUDDY, WAS ASSIGNED TO LINE 7 WHEREAS A SUPERVISOR, MR. ANDERSON
OR MR. HATCHETT, HAD BEEN ASSIGNED TO LINE 7 ON THE OCTOBER AND NOVEMBER
SCHEDULES. MR. LACHANCE TESTIFIED THAT HE HAD LOOKED AT THE JANUARY
SCHEDULE, SAW THAT IT WAS DIFFERENT FROM THE PREVIOUS SCHEDULE, BUT MADE
NO COMMENT TO MR. ANDERSON. OF COURSE, THE JANUARY SCHEDULE SHOWED ON
ITS FACE THAT LINE 5 WAS BLANK, WHEREAS LINE 6 HAD BEEN BLANK ON THE
DECEMBER SCHEDULE AND LINE 4 HAD BEEN BLANK ON THE NOVEMBER SCHEDULE;
THAT MR. HATCHETT HAD BEEN ASSIGNED TO LINE 3, WHEREAS HE HAD BEEN
ASSIGNED TO LINE 4 ON THE NOVEMBER SCHEDULE AND TO LINE 7 ON THE
NOVEMBER SCHEDULE.
C) THE FOREGOING NOT ONLY STRONGLY INFERS THAT NEITHER MR.
MCGILLICUDDY NOR MR. LACHANCE VIEWED EITHER THE DECEMBER SCHEDULE OR THE
JANUARY SCHEDULE AS INCONSISTENT WITH THE SEPTEMBER, 1979,
UNDERSTANDING; BUT MORE IMPORTANT, EVEN IF SOME VIOLATION WERE
PERCEIVED, NOT EVERY BREACH OF CONTRACT CONSTITUTES AN UNFAIR LABOR
PRACTICE. GENERAL SERVICES ADMINISTRATION, REGION 5, PUBLIC BUILDINGS
SERVICE, CHICAGO FIELD OFFICES, A/SLMR NO. 528, 5 A/SLMR 424(1975). A
CLEAR, FLAGRANT AND PERSISTENT BREACH OF CONTRACT MAY RISE TO THE
SERIOUSNESS OF A UNILATERAL CHANGE IN THE CONTRACT AND, THEREFORE,
CONSTITUTE AN UNFAIR LABOR PRACTICE, WATERVLIET ARSENAL, U.S. ARMY
ARMAMENT COMMAND, WATERVLIET, NEW YORK, A/SLMR NO. 726, 6 A/SLMR
526(1976), BUT IF THERE IS NO FLAGRANT OR PATENT BREACH CONSTITUTING A
UNILATERAL CHANGE, DIFFERING AND ARGUABLE INTERPRETATIONS OF AN
AGREEMENT ARE NOT UNFAIR LABOR PRACTICES, WATERVLIET ARSENAL, SUPRA;
DEPARTMENT OF ARMY, WATERVLIET ARSENAL, WATERVLIET, NEW YORK, A/SLMR
624, 6 A/SLMR 127(1976), AND THE REMEDY LIES WITHIN THE GRIEVANCE
MACHINERY OF THE NEGOTIATED AGREEMENT, RATHER THAT THROUGH THE UNFAIR
LABOR PRACTICE PROCEDURE, AEROSPACE GUIDANCE AND METROLOGY CENTER,
NEWARK AIR FORCE STATION, NEWARK, OHIO, A/SLMR NO. 677, 6 A/SLMR
361(1976); OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER AIR FORCE BASE,
OKLAHOMA, 3 FLRA NO. 82(1980); DEPARTMENT OF THE AIR FORCE, 3480TH AIR
BASE GROUP, GOODFELLOW AIR FORCE BASE, TEXAS, CASE NO. 6-CA-139(ALJ)
SEPTEMBER 8, 1980). HERE, THERE WAS NO REFUSAL CONSULT. TO THE
CONTRARY, THE PARTIES DID CONFER IN SEPTEMBER, 1979, AND AGREED UPON
SCHEDULING; THE UNION, ALTHOUGH SHOWN THE DECEMBER AND JANUARY
SCHEDULES PRIOR TO THEIR BEING POSTED, DID NOT REQUEST FURTHER
CONSULTATION; AND THE PARTIES SUBSEQUENTLY MET AND AGREED ON LATER
WATCH SCHEDULES. AT MOST, THERE WERE DIFFERING AND ARGUABLE
INTERPRETATIONS OF WHAT HAD BEEN AGREED TO AT THE SEPTEMBER, 1979,
CONSULTATION AND CERTAINTY, NO PATENT OR FLAGRANT BREACH WHICH
CONSTITUTED A UNILATERAL CHANGE OF AGREEMENT FOR WHICH AN UNFAIR LABOR
PRACTICE VIOLATION COULD BE FOUND.