[ v19 p1004 ]
19:1004(116)CA
The decision of the Authority follows:
19 FLRA No. 116
UNITED STATES DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION
ADMINISTRATION
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
Charging Party
Case No. 6-CA-30370
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 alleges that the United States Department of
Transportation, 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/ (1) by unilaterally
implementing a change in the performance standards and critical job
elements of unit employees in the Airway Facilities Division, Southwest
Region (AFD, Southwest Region) without notifying the Professional
Airways Systems Specialists (PASS), at the national level of exclusive
recognition, and providing it the opportunity to negotiate concerning
the procedures to be observed in implementing such change and concerning
appropriate arrangements for employees adversely affected thereby; and
(2) by refusing to bargain in good faith with PASS' designated
representative concerning the alleged change.
On December 31, 1981, PASS was certified as the exclusive
representative for a unit of employees including those located in the
AFD, Southwest Region involved herein. /2/ Prior to that time, the unit
of employees had been represented by the Federal Aviation Science and
Technological Association (FASTA) which had negotiated an agreement with
the FAA in 1977 for a two year period. That agreement was automatically
renewed by its terms following the 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
. . . . " Subsequently, noting PASS' letter, the Respondent by letters
dated June 9 and 18, 1982, informed its managers, among other things, to
adhere to the provisions of the FASTA agreement which in its view
required that notice of local changes in working conditions be given at
the local level, and that it was only required to consult over such
changes. By letter dated May 16, 1983, /3/ Johannssen, among other
things, again advised the Respondent's Administrator that notice
involving changes in conditions of employment of unit employees should
be directed to him.
On May 27, the Manager of AFD, Southwest Region issued Order 3400.8,
entitled Airway Facilities Performance Standards, which was distributed
to the section level in the Airway Facilities Division and all Airway
Facilities field facilities. The appendix to this order contained
performance standards and critical job elements for 14 different
positions in the AFD, Southwest Region. More specifically, it
identified the critical job elements for measuring the performance of
each nonmerit pay employee in the AFD, Southwest Region, with certain
exceptions. PASS was not included in the distribution of this Order.
However, when the Respondent became aware of this oversight, it
forwarded a copy to PASS through Bobby Mullins, PASS' Midwest Sector
Vice-President, with a copy to Johannssen. The performance standards in
the appendix were to be implemented 90 days following the date of the
Order, but a 30 day extension was initiated by the Respondent making the
effective date September 21, 1983.
On July 23, Mullins sent a letter to Clinton Murphy, Manager of AFD,
Southwest Region concerning the proposed change, demanding to bargain on
the matter and further advising the Manager that PASS' National
President, Johannssen, was the only PASS official authorized to
negotiate on the matter. On August 3, Johannssen wrote to Manager
Murphy concerning the subject change; demanded bargaining on the matter
to the full extent permitted by law; and further requested Murphy to
refrain from implementing any change until negotiations were completed.
On August 31, Manager Murphy, in replying to Mullins' letter of July
23 mentioned above, stated that the Airway Facilities Division had
published an Order containing performance standards with mandatory
critical job elements for Airway Facilities positions in the Southwest
Region; that implementation of the Order would not occur until PASS was
afforded the opportunity to consult on its impact; that the Order was
being forwarded to him for such purpose; and that his comments on this
matter should be received by September 17, 1983. By letter dated
September 10, Mullins, in reply to such letter, again requested to
bargain on the proposed change and further requested that the Manager of
AFD, Southwest Region refrain from implementing the change pending the
completion of negotiations.
On September 27, 1983, the Respondent implemented Order 3400.8 which
changed the bargaining unit employees' performance standards and
critical job elements. The Respondent asserts that its bargaining
obligation with respect to the subject change was limited to
consultation by virtue of a certain provision in the FASTA agreement
which, in its view, constituted a clear and unequivocal waiver of
FASTA's right under the Statute to negotiate over changes in working
conditions as herein, and that such waiver is binding on PASS.
Therefore, in view of the above, the Respondent takes the position that
it met its obligation to bargain since it offered PASS an opportunity to
consult over the impact and implementation of the subject change prior
to its effectuation.
In Federal Aviation Administration, Northwest Mountain Region,
Seattle, Washington and Federal Aviation Administration, Washington,
D.C., 14 FLRA 644 (1984), a case involving FAA, 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). In the instant case,
when PASS notified the Respondent that Johannssen was its designated
representative to receive notice and to bargain on all proposed changes
in unit employees' conditions of employment, and further demanded to
bargain on the matter herein, 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).
With respect to the Respondent's decision to change the performance
standards and critical job elements herein, the Authority finds that the
decision, itself, concerned an exercise of a management right under
section 7106(a) of the Statute and therefore was outside the
Respondent's duty to bargain; however, even though such decision was
outside the duty to bargain, the Authority has held that there is a duty
to bargain concerning the procedures which management will observe in
exercising its reserved rights and concerning appropriate arrangements
for employees adversely affected by management's exercise thereof.
National Treasury Employees Union and Department of the Treasury, Bureau
of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v. FLRA, 691
F.2d 553 (D.C. Cir. 1982). See also Social Security Administration, 8
FLRA 517 (1982), aff'd sub nom. American Federation of Government
Employees, Local 1923 v. Federal Labor Relations Authority, 718 F.2d
1088 (4th Cir. 1983), and Social Security Administration, 16 FLRA No.
148 (1984).
The record herein reveals that the Respondent refused to bargain with
Johannssen, PASS' National President and designated representative,
concerning the procedures to be observed in implementing the change and
concerning appropriate arrangements for unit employees adversely
affected by the change prior to its effectuation, but instead insisted
on dealing with PASS at the local level and further limited the scope of
PASS' participation to consultation on the matter. Therefore, the
Authority concludes that the Respondent's refusal to bargain with
Johannssen, PASS' designated representative, and to afford PASS an
opportunity to negotiate rather than consult as mentioned above,
constitutes a violation of section 7116(a)(1) and (5) of the Statute.
/4/
To remedy the unfair labor practice conduct found herein, PASS has
requested a status quo ante order. The Authority finds that such a
remedy is not warranted. 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
appropriate arrangements for unit employees adversely affected by the
Respondent's decision to change the performance standards and critical
job elements of unit employees, will best effectuate the purposes and
policies of the Statute. In this regard, the Authority notes that an
order requiring management to rescind the revised performance standards
and critical job elements and to reevaluate the subject employees under
the preexisting standards would cause serious disruption in the
Respondent's operations. Moreover, the record does not contain any
evidence which would support a conclusion that any unit employees
evaluated under the revised performance standards were adversely
affected thereby. /5/ Therefore, in the absence of such evidence, and
noting that the General Counsel does not seek such a remedy, the
Authority concludes, as stated above, that a status quo ante remedy is
unwarranted 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 Airway Facilities Division, Southwest Region, where the
instant violation has 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);
and Department of Transportation, Federal Aviation Administration, 19
FLRA No. 61 (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 Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the United States Department
of Transportation, Federal Aviation Administration, shall:
1. Cease and desist from:
(a) Changing the performance standards and critical job elements of
unit employees in the Airway Facilities Division, Southwest Region,
without affording the Professional Airways Systems Specialists, the
exclusive representative of its employees, the opportunity to negotiate
concerning the procedures to be observed in implementing the change 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, through its designated representative, concerning the
procedures to be observed in implementing the change in the performance
standards and critical job elements of unit employees in the Airway
Facilities Division, Southwest Region, and appropriate arrangements for
unit employees adversely affected thereby.
(b) Post in the Airway Facilities Division, Southwest Region, 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 Airway Facilities Division, Southwest Region, 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 Authority's Rules and
Regulations, notify the Regional Director, Region VI, 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., August 23, 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 performance standards and critical job elements
of unit employees located in the Airway Facilities Division, Southwest
Region, without affording the Professional Airways Systems Specialists,
the exclusive representative of our employees, the opportunity to
negotiate concerning the procedures to be observed in implementing the
change 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, through its designated representative, concerning the
procedures to be observed in implementing the change in the performance
standards and critical job elements of unit employees in the Airway
Facilities Division, Southwest Region, and 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 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/ 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/ Subsequently, on April 14, 1983, PASS was certified for a larger
consolidated unit of the Respondent's employees.
/3/ All dates hereafter refer to the year 1983 unless otherwise
noted.
/4/ In view of the above conclusion, it is unnecessary to pass upon
whether notice to PASS' local representative of the change herein with a
copy to PASS' National President would constitute proper notice to the
exclusive representative.
/5/ Compare Department of the Air Force, Air Force Systems Command,
Electronic Systems Division, 14 FLRA 390 (1984), wherein the Authority
ordered an agency to withdraw an employee's adverse evaluation which was
based upon unilaterally revised performance standards and critical
elements and to cease applying them in the future, but affirmatively
required the agency to notify the employees' exclusive representative of
a decision to establish written performance standards and critical
elements and, upon request, negotiate concerning procedures and
appropriate arrangements for employees adversely affected thereby.