[ v19 p732 ]
19:0732(89)CA
The decision of the Authority follows:
19 FLRA No. 89
UNITED STATES DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, AFL-CIO
Charging Party
Case No. 6-CA-40025
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 contentions of the parties, the
Authority finds:
The complaint essentially 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) by (1) unilaterally implementing a change in the duty hours of
the basic watch schedule at its San Antonio, Texas Radar/Arts Unit
(Radar/Arts Unit) without notifying the Professional Airways Systems
Specialists (PASS or the Union), at the national level of exclusive
recognition, and providing it the opportunity to negotiate on the
change; and (2) by refusing to negotiate with the Union's designated
representatives concerning the alleged change.
On December 31, 1981, PASS was certified as the exclusive
representative of a nationwide unit of the Respondent's employees,
including employees located at the Radar/Arts Unit; this nationwide
unit was previously represented by the Federal Aviation Science and
Technological Association (FASTA). /1/ Prior to PASS' initial
certification, the Respondent and FASTA had negotiated an agreement
which became effective in 1977 for a two-year period and which was
automatically renewed thereafter following the agreement's expiration
date.
On May 28, 1982, Howard Johannssen, PASS' National President, sent a
letter to the Respondent's Administrator, wherein he stated, in part,
that he had received "persistent reports of local and regional FAA
management proposals to make changes in conditions of employment within
the unit" and further stated that "any prior bargaining authority given
to any PASS representative other than (himself was) . . . revoked with
respect to the national unit," and that he should be "notified of all
proposed changes in conditions of employment of bargaining unit members
. . .." By letter dated May 16, 1983, /2/ Johannssen, among other
things, again advised the Respondent's administrator that notices
involving changes in conditions of employment of unit members should be
directed to him.
On July 8, the Respondent's manager at the Radar/Arts Unit notified
PASS' local representative of an intention to change the duty hours of
the basic watch schedule from 8:00 a.m.-4:00 p.m. and 4:00 p.m.-12:00
midnight to 7:00 a.m.-3:00 p.m. and 3:00 p.m.-11:00 p.m., and invited
the local representative to submit any comments by July 15. On July 14,
the representative submitted a request to bargain on the proposed
change, and further advised the Respondent that the only person
authorized to negotiate for the Union was Johannssen, or his designee.
Thereafter, commencing on July 21st and through the month of September,
the Radar Arts/Unit manager sought without success to discuss the matter
with the local union representative and eventually presented the
proposed change in duty hours to the representative to be effectuated on
October 23. On October 4, Johannssen wrote a letter to the Respondent's
Manager at the San Antonio Airway Facilities Sector (San Antonio AFS)
informing him that he had designated Robert Garnett to enter into
negotiations on the proposed change, and on that same day Garnett
requested negotiations on the proposed change in duty hours of the basic
watch schedule at the Radar/Arts Unit. On October 27, the Manager of
the San Antonio AFS responded to Garnett's letter and stated, inter
alia, that the Union was given an opportunity to provide input regarding
the proposed changes but had declined to do so, and further indicated
that he would be available to consult with Garnett on these matters if
he desired. On December 4, Garnett replied to Respondent's letter of
October 27, and again requested to negotiate on the change. The change
which affected six employees was implemented on October 23, and the
stipulated record indicates that, as a result, the shifts noted above
were changed to start and end one hour earlier.
The Respondent asserts that its bargaining obligation on the subject
change was limited to consultation by virtue of provisions in the FASTA
agreement which, in its view, constitute a clear and unequivocal waiver
of the Union's right under the Statute to negotiate over changes in
working conditions as herein, and that such waiver is binding on PASS.
Further, it contends that, under the FASTA agreement, it was required to
and did notify the local Union representative concerning the proposed
change and that such representative was given an opportunity to consult
on the change prior to its implementation.
The Authority has determined that an agency's decision to change the
starting and quitting times of previously established shifts is subject
to the duty to bargain unless it can be demonstrated that such change
was determinative of the "numbers, types and grades of employees or
positions assigned to any organizational subdivision, work project or
tour of duty," within the meaning of section 7106(b)(1) of the Statute,
and therefore negotiable only at the election of the agency. /3/ See
e.g., Internal Revenue Service, Los Angeles District, 10 FLRA 653
(1982); U.S. Customs Service, Region V, New Orleans, Louisiana, 9 FLRA
116 (1982); and National Treasury Employees Union Chapter 66 and
Internal Revenue Service, Kansas City Service Center, 1 FLRA 926 (1979).
In the instant case, where it is neither alleged nor stipulated that
the resulting change had an effect on the numbers, types and grades of
employees or positions within the unit, the Authority finds that the
Respondent was obligated to bargain with PASS concerning its decision to
change the starting and quitting times of the established shifts, unless
PASS' right to bargain on the matter was clearly and unmistakably waived
as asserted by the Respondent.
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 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).
The instant case involves the same parties and the identical
assertion by PASS of its right to negotiate rather than consult about
the change herein. Accordingly, and for the reasons more fully set
forth in the previously filed cases, the Authority finds that the
Respondent was no longer free to insist upon the practice contained in
the expired FASTA agreement so as to preclude bargaining over the change
herein. Further, based on the rationale contained in Department of
Transportation, Federal Aviation Administration, San Diego, California,
15 FLRA No. 86 (1984), the Authority finds that the Respondent was no
longer free to insist upon the practice contained in the expired FASTA
agreement where the record reflects that PASS expressed its statutory
right to designate its own representatives by notifying the Respondent
of the Union's representatives designated to receive notice and to
bargain on the matter herein.
Having found no waiver of PASS' statutory rights, the Authority
concludes that the Respondent had a statutory obligation to provide
prior notice to PASS' designated representative and afford the Union an
opportunity to negotiate over the subject change. Therefore, the
Authority finds that the Respondent by the above noted actions refused
to fulfill its duty to bargain in violation of section 7116(a)(1) and
(5) of the Statute, and that the Respondent's failure to provide notice
to PASS' designated representative also constitutes a violation of
section 7116(a)(1) and (5) of the Statute.
To remedy the unfair labor practice conduct found herein, PASS has
requested a status quo ante order. Noting particularly that the
Respondent failed to meet its duty under the Statute to bargain with
PASS concerning the decision to change the starting and quitting times
of the previously existing shifts, described above, the Authority finds
that an order directing reinstatement of the previously existing
starting and quitting times of such shifts and, upon request of PASS,
requiring the parties to negotiate concerning the starting and quitting
times thereof, is necessary to effectuate the purposes and policies of
the Statute. In this regard, the Authority in Department of the Air
Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981), similarly
ordered a restoration of the preexisting starting and quitting times
where management had failed to notify and bargain with the exclusive
representative concerning the decision to change such established
conditions of employment. In support of that conclusion, the Authority
noted the literal language and the legislative history of the Statute
and the necessity of such an order to avoid rendering meaningless the
mutual obligation under the Statute to negotiate concerning changes in
conditions of employment. To the same effect, see U.S. Customs Service,
Region V, New Orleans, Louisiana, supra. /4/
In finding an order directing reinstatement of the preexisting
starting and quitting times to be appropriate, the Authority is not
unmindful that the unit employees herein are engaged in the repair and
maintenance of radar, communication, navigational, computer, and other
electronic equipment used in FAA's national air traffic control system,
and that a change in such employees' duty hours may under certain
circumstances involve a question of public safety. Noting, however,
that the Respondent did not argue and that the stipulated record
contains no evidence to support a finding that public safety would in
any way be affected by such an order, the Authority concludes, in the
circumstances of this case, that public safety considerations do not
preclude our issuing the foregoing order as an appropriate remedy
herein.
With regard to PASS' request that the remedy be nationwide in scope,
the Authority finds that a posting of the remedial unfair labor practice
notice in the San Antonio Airway Facilities sector and the San Antonio,
Texas Radar/Arts Unit, where the instant violations have occurred, will
also best effectuate the purposes and policies of the Statute. Thus,
consistent with the Authority's findings in similar situations involving
FAA's unlawful insistence on a waiver of PASS' statutory rights, the
posting of a remedial notice only at the locations where such unlawful
conduct has occurred is warranted. See Federal Aviation Administration,
Northwest Mountain Region, supra; Federal Aviation Administration, San
Diego, California, supra; Department of Transportation, Federal
Aviation Administration, Los Angeles, California, supra; Federal
Aviation Administration, Washington, D.C., 17 FLRA No. 26 (1985);
United States Department of Transportation, Federal Aviation
Administration, 18 FLRA No. 8 (1985); Federal Aviation Administration,
Washington, D.C., 19 FLRA No. 59 (1985); Department of Transportation,
Federal Aviation Administration, 19 FLRA No. 61 (1985); and United
States Department of Transportation, Federal Aviation Administration, 19
FLRA No. 62 (1985). The Authority notes, moreover, that the unlawful
conduct in the instant case occurred prior to the issuance of the
Authority's decision in Federal Aviation Administration, Northwest
Mountain Region. As there is no indication that the FAA has refused to
abide by the Authority's decision in that case or in the other cited
cases, or that it will continue to engage in such unlawful conduct in
the future, the Authority finds no basis on which to order a different
posting requirement than that ordered 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 duty hours of the basic watch schedule at its San
Antonio, Texas Radar/Arts Unit without affording the Professional
Airways Systems Specialists, AFL-CIO, the exclusive bargaining
representative of its employees, the opportunity to negotiate with
respect to such change.
(b) Changing the duty hours of the basic watch schedule at the San
Antonio, Texas Radar/Arts Unit without providing prior notice to the
representative designated by the Professional Airways Systems
Specialists, AFL-CIO, the exclusive representative of its employees.
(c) 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) Reestablish the 8:00 a.m.-4:00 p.m. and 4:00 p.m.-12:00 midnight
starting and quitting times for unit employees at the San Antonio, Texas
Radar/Arts Unit and afford the Professional Airways Systems Specialists,
AFL-CIO, through its designated representative, prior notice of and the
opportunity to negotiate with respect to any proposed changes thereto.
(b) Post at its facilities at the San Antonio Airway Facilities
Sector and the San Antonio, Texas Radar/Arts Unit 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 the
Manager of the San Antonio Airways Facilities Sector, or a designee, 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 Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director, Region
VI, 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., August 15 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO 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 duty hours of the basic watch schedule at the San
Antonio, Texas Radar/Arts Unit without affording the Professional
Airways Systems Specialists, AFL-CIO, the exclusive bargaining
representative of our employees, the opportunity to negotiate with
respect to such change. WE WILL NOT change the duty hours of the basic
watch schedule at the San Antonio, Texas Radar/Arts Unit without
providing prior notice to the representative designated by the
Professional Airways Systems Specialists, AFL-CIO, the exclusive
representative of our employees. 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 reestablish the 8:00 a.m.-4:00 p.m. and
4:00-12:00 midnight starting and quitting times for unit employees at
the San Antonio, Texas Radar/Arts Unit and afford the Professional
Airways Systems Specialists, AFL-CIO, through its designated
representative, prior notice of and the opportunity to negotiate with
respect to any proposed changes thereto.
(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 VI,
Federal Labor Relations Authority, whose address is: Federal Office
Building, 525 Griffin Street, Suite 926, Dallas, TX 75202, and whose
telephone number is: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ Subsequently, on April 14, 1983, PASS was certified in a larger
consolidated unit of the Respondent's employees.
/2/ All dates hereafter refer to the year 1983 unless otherwise
noted.
/3/ Section 7106(b)(1) provides:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work(.)
/4/ Compare Department of Transportation, Federal Aviation
Administration, Los Angeles, California, supra, where the Authority
found that a status quo ante remedy was not feasible since the
preexisting watch schedule was based on a staffing level of six
employees which no longer existed at the time that the agency altered
the watch schedule due to the resignation of one of the six employees;
and United States Department of Transportation, Federal Aviation
Administration, supra, where the Authority also found for similar
reasons (one of six employees manning the watch schedules having been
transferred) that such a remedy was not appropriate.