[ v11 p131 ]
11:0131(34)CO
The decision of the Authority follows:
11 FLRA No. 34
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, AFL-CIO, LOCAL 246
Respondent
and
FEDERAL AVIATION ADMINISTRATION,
AIR TRAFFIC CONTROL TOWER,
PHILADELPHIA, PENNSYLVANIA
Charging Party
Case No. 2-CO-32
ORDER DISMISSING COMPLAINT
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint and recommending that it
be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the Respondent filed exceptions to the Judge's
Decision.
After the Judge rendered his Decision in this case, the Authority
issued its Decision and Order in Professional Air Traffic Controllers
Organization, Affiliated with MEBA, AFL-CIO, 7 FLRA No. 10 (1981),
affirmed sub nom., Professional Air Traffic Controllers Organization v.
Federal Labor Relations Authority, 685 F.2d 547 (D.C. Cir. 1982),
revoking the exclusive recognition status of the Respondent herein,
PATCO, for having engaged in strike activity prohibited by section
7116(b)(7) of the Federal Service Labor-Management Relations Statute
(the Statute), and finding that PATCO is no longer a labor organization
within the meaning of the Statute. The Authority concludes herein that,
due to Respondent's loss of status as an exclusive representative and as
a labor organization under the Statute, any decision rendered herein
cannot have any practical legal effect. Accordingly, the Authority
shall order that the instant complaint be dismissed as moot.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No.2-CO-32 be, and it
hereby is, dismissed.
Issued, Washington, D.C., January 28, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
GEORGE Kerr, Regional Vice-President
For the Respondent
John M. Bates, Esq.
For the General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on September 30,
1980 by the Regional Director for the Federal Labor Relations Authority,
Region 2, a hearing was held before the undersigned on December 17, 1980
at Philadelphia, PA.
This proceeding, arising under the Federal Service Labor-Management
Statute, 5 U.S.C.Section 7101 et seq., (herein called the Act), was
initiated by the Federal Aviation Administration, Air Traffic Control
Tower, Philadelphia, Pa. (herein called the charging party or FAA). The
latter filed a charge On june 16, 1980 against Professional Air Traffic
Controllers Organization, MEBA/AFL-CIO, Local 245 (herein called the
Respondent or Union). Based upon said charge it was alleged in the
complaint that, since on or about May 10, 1980, Respondent disciplined
an employee-member of the Union by assessing a fine against him and
suspending him from Union membership-- all because said individual
worked overtime and in violation of Section 7116(b)(1) and (3) of the
Act.
Respondent filed an answer, dated November 10, 1980, to the complaint
herein. In addition to denying the commission of any unfair labor
practice, the answer alleged that in imposing a fine the union was
pursuing its legitimate interests; and that the matter involved
internal affairs of the union with no attempt to cause the employee's
discharge from his employment.
All parties were represented at the hearing. They were afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter the parties filed briefs which have
been duly considered.
Upon the entire record in this case, from my observation of the
witnesses and their demeanor, and from all of the testimony and evidence
adduced at the hearing, I make the following findings, conclusions and
recommendations:
Findings of Fact
1. At all times material herein Respondent has been, and still is,
the collective bargaining representative of all air traffic control
specialists. GS-2152 series, including flow controllers, are
specialists, data system specialists, planning and procedures
specialists employed by the charging party at air traffic control
towers, air traffic control centers and combined-station-towers.
2. The Federal Aviation Administration, Department of Transportation
and the Professional Air Traffic Controllers Organization, (Marine
Engineers Beneficial Association - MEBA), AFL-CIO, were, at all times
material herein, and still are parties to a collective bargaining
agreement covering the aforesaid unit of employees at the Philadelphia,
Pa., International Airport. The said agreement, by its terms, became
effective on March 15, 1978 for a period of three years.
3. Article 40 (OVERTIME) of the aforesaid agreement contains, inter
alia, the following provisions:
Section 2. "Whenever overtime work is to be performed, it
shall be made available to qualified employees on an equitable
basis."
Section 3. "An employee assigned to work overtime may secure a
replacement and, provided the replacement is acceptable to the
supervisor, will be relieved of the assignment. If the employee
is unable to secure a replacement acceptable to the supervisor,
the employee will work the overtime."
4. Article 54 (Effect of Agreement) of the aforesaid agreement
contains the following provision:
Section 1. "Any provision of this agreement shall be
determined a valid exception to and shall supersede any existing
FAA rules, regulations, orders and practices which are in conflict
with the agreement."
5. Prior to January, 1980 management had adopted a particular
procedure in respect to overtime work not scheduled in advance. The
need for such overtime, referred to as call-in overtime, arose when a
controller called his supervisor just prior to or during a watch and
reported he was taking sick or other leave. In such an instance the
supervisor called controllers whose names appeared on a special list and
who were not at work that day. Occasionally calls were made at 4:30
a.m. or 5:00 a.m. to the controller's house. He requested the
controller whom he called to volunteer to work the particular day. If
no controller volunteered, the supervisor re-called the first employee
on the list. The latter, upon being notified that nobody volunteered,
would offer his services. Management could assign the overtime work to
the first controller on the list. If the said individual did not want
the assignment, it was his responsibility to find a suitable
replacement.
6. Record facts show there were 20 controllers on the staff, and
about 13 controllers were needed to operate the positions during a
fairly busy period. Prior to January, 1980 no difficulty was
experienced in obtaining controllers to volunteer for call-in overtime.
In and around December, 1979 Fred G. Burkins, President of Local 246,
discussed with management the use of a new policy regarding call-in
overtime. The union objected to the fact that controllers who didn't
want to work overtime were called at 4:00 a.m. It took the position
that only those employees indicating a desire to do work overtime should
be called initially.
7. At an Executive Board Meeting of the Union on January 20, 1980
/1/ a resolution regarding voluntary call-in overtime was proposed for
submission to the general membership. Thereafter, on February 13 the
members passed the following resolution:
"Whereas the members of PATCO Local 246 are desirous of knowing
their work schedule in advance and seek schedule versus call-in
overtime, and
Whereas said members seek to maintain their privacy on
scheduled days off, and
Whereas facility management has shown a disregard for the
contract and facility orders relating to overtime,
Therefore be it resolved that the members of Local 246 shall
not accept call-in overtime, and that violation of this resolution
shall constitute an action detrimental to the interests of this
Local and subject the responsible member to disciplinary action as
provided in the local constitution."
8. Management began to encounter difficulty in obtaining controllers
to work call-in overtime. At times it operated with three less
controllers than were required for a particular watch. As a result of
discussions between Burkins and John M. Stuck, Deputy Chief of the
Tower, the union official proposed that management alter the procedure
regarding call-in overtime. It was suggested that the employer maintain
two lists of controllers: one list containing the names of those
individuals who wanted call-in overtime work, while the other list
comprised the names of controllers who did not desire such overtime.
However, the employer would not agree since it was determined that such
a procedure would violate Article 40, Section 2 of the collective
bargaining agreement.
9. Air Traffic Control Specialist Ralph A. Cole, who had been so
employed by the charging party for over seven years, was a member of
Respondent union. He was present at the meeting whereat the resolution,
hereinabove set forth, was passed and was aware of its contents. On May
8, Cole received a call from the assistant chief at the Control Tower.
Cole, who was at home and not on duty that day, was asked to work
call-in overtime and he volunteered to do so. Accordingly, the
controller reported for work on the 7:00 a.m. - 3:00 p.m. watch.
10. By letter dated May 10, Respondent notified Cole that he had
failed to comply with provisions of the National and local unions'
constitution by engaging in conduct detrimental to the best interests of
the local. Specifically, it was claimed by the union that on May 8 Cole
had appeared for work on the day watch contrary to the call-in overtime
resolution adopted by the membership. The letter also apprised Cole
that a hearing would be held before the Executive Board on May 28
regarding the charges, and that he has the right to appeal the
determination of the Board.
11. A meeting was accordingly held by the Executive Board on May 28
at which Cold attended. The controller admitted that he had worked
call-in overtime on May 8; that he was aware of the union's resolution
regarding call-in overtime but did not agree with it.
12. On May 30 Cole was notified by a representative of Respondent
union that he had been found guilty by the Executive Board of violating
the resolution against working call-in overtime. Further, Cole was
informed that a fine of $125 would be levied against him for such
violation.
13. By letter dated June 21, Cole advised Respondent that he decided
not to pay the fine; that he deemed the union's action against him to
be an unfair labor practice.
14. Union President Burkins wrote a letter notifying Cole that he
had been fined $125 by the union's Executive Board; that on July 16 the
Executive Board met and decided to suspend him from local 246 until he
complied with its decision; and that notification of the suspension
would be sent to the PATCO National, resulting in Cole's suspension from
that organization.
15. In August Burkins called management's attention to a provision
in the FAA Handbook which permitted employees who so desired to work
overtime. Some difficulty was encountered by the parties since the
bargaining agreement required that overtime be made available to all
parties. Moreover under Article 54 of the agreement the contractual
provisions superseded all orders or regulations of management. However,
the parties agreed to accept the Handbook provision and waive the
contractual requirement.
16. By virtue of the foregoing, Management and Respondent consented
to an arrangement whereby two lists of controllers would be compiled.
One list included the names of those individuals who desired to work
overtime, and the other list contained the controllers who did not want
such work. This resolved the difficulty regarding call-in overtime
since the FAA would use the first list when employees had to be called
to work overtime.
17. In view of this arrangement regarding call-in overtime,
Respondent rescinded the resolution which banned call-in overtime work
by its members. Notwithstanding this rescission, Cole still remains
suspended as a member of Local 245. /2/ Imposition of the fine has not
been revoked by Respondent union nor has Cole paid it.
Conclusions
The case at bar involved, for the most part, a question of law:
whether Respondent union violated Sections 7116(b)(1) and (3) of the Act
by fining Cole, and suspending him from union membership, because he
voluntarily worked call-in overtime contrary to a union resolution
prohibiting its members to do so.
Section 7116(b)(3) of the Act provides that it is an unfair labor
practice for a labor organization:
"to coerce, discipline, fine, or attempt to coerce a member of
the labor organization as punishment, reprisal, or for the purpose
of hindering or impeding the member's work performance or
productivity as an employee or the discharge of the member's
duties as an employee."
Respondent insists that its resolution banning the members from
working call-in overtime, on a voluntary basis, was passed to preserve
the integrity of the union. It contends the ban concerned an internal
regulation of its own affairs which, in cases arising under the National
Labor Relations Act, has been held to be protected rights. Moreover, it
is averred, the Supreme Court in Scofield v. National Labor Relations
Board, 394 U.S. 423 (1968) stated that a union is free to enforce a rule
reflecting its legitimate interest which impairs no policy Congress has
embedded in labor laws, and is reasonably enforced against its members
who are free to leave the union and escape the rule. Since the rule did
not affect Cole's employment status, Respondent argues it has not
violated the Act.
The General Counsel argues that the cases decided in the private
sector are inapposite in light of the fact that Section 7116(b)(3) is
entirely different from the prohibition against union discrimination in
the National Labor Relations Act, and the latter statute does not
contain a provision similar to 7116(b)(3) herein. Moreover, the Supreme
Court leaves a union free to enforce its rules provided they do not, as
here, impair a policy Congress has embedded in the labor laws. In the
instant case the Respondent clearly hindered and impeded Comptroller
Cole's work performance and productivity by attempting, via the fine and
suspension, to prevent the employee and others from working call-in
overtime voluntarily. Thus its actions do impair congressional policy
as set forth under 7116(b)(3). It is further maintained that the
union's right to enforce discipline, as assured under Section 7116(c) of
the Act, is not abrogated so long as disciplinary action does not so
hinder or impede the employee's work performance. Finally, General
Counsel contends the employee should not be compelled to resign from the
union; that the right of appeal does not legitimize the resolution
adopted by Respondent.
A decision involving the identical question presented herein was
issued on March 13, 1981 by Administrative Law Judge Garvin L. Oliver.
See Atlanta Center Professional Air Traffic Controllers Organization,
Local 101, et al. AFL-CIO, Case No. 4-CO-15. The respondent therein,
Local 101 PATCO, established a ban on its members accepting voluntary
call-in overtime work. Its prohibition stemmed from dissatisfaction
with the staffing of various shifts, and the union felt management
should either schedule overtime pursuant to the negotiated agreement,
/3/ or increase staffing. A fine was levied by the union in the cited
case against a controller who accepted voluntary call-in overtime work
in disregard of the ban. The Executive Board of Local 101 concluded the
controller violated its constitution by refusal to abide by the union's
decision regarding call-in overtime /4/ in that justifiable cause.
Judge Oliver concluded that the union in the cited case violated
Sections 7116(b)(1) and (3) of the Act. He rejected the defense,
similarly asserted herein, that the union rule pertained to an internal
matter protected under the Act. Moreover, he stated that Section
7116(b)(3) was intended to protect union members from acts which
interfere with their work performance, productivity, or the discharge of
the member's duties as an employee.
For the reasons, inter alia, expressed by Judge Oliver in the
aforesaid decision I likewise conclude that Respondent herein violated
Sections 7116(b)(1) and (3) of the Act. Apart from the fact that the
National Labor Relations Act does not contain language akin to
7116(b)(3), the union herein has, by its action, flouted a policy set
forth by Congress in the labor law. This policy, as enunciated in this
Act, is to prohibit the labor organization from hindering or impeding an
employee's work performance. The fine levied herein does, in my
opinion, constitute such hindrance and interference. Further, I reject
the argument that, since Cole could have appealed the Executive Board's
decision or resigned from the union, Respondent's actions may not be
deemed coercive. These alternatives do not vitiate the interference nor
negate the fact that the union's conduct impeded work performance or
productivity of employees. Accordingly, I conclude that the suspension
of Ralph A. Cole from Respondent union, and the imposition of a fine
upon him, was violative of Sections 7116(b) (1) and (3), of the Act.
Having found and concluded that Respondent violated Sections
7116(b)(1) and (3) of the Act, it is recommended that the Authority
issue the following order:
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 Professional Air Traffic Controllers
Organization, MEBA/AFL-CIO, Local 246, shall:
1. Cease and desist from:
(a) Coercing or disciplining Ralph A. Cole, or any other member
of Professional Air Traffic Controllers Organization,
MEBA/AFL-CIO, Local 246 for the purpose of hindering or impeding
Ralph A. Cole or the member's work performance, productivity, or
the discharge of his duties as an employee, by fining or
suspending from membership in Professional Air Traffic Controllers
Organization, MEBA/AFL-CIO, Local 246, Ralph A. Cole, or any other
member in that labor organization, because he accepted and worked
call-in overtime.
(b) In any like or related manner interfering with, restraining
or coercing 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) Rescind and nullify the decision and determination by the
Executive Board of Professional Air Traffic Controllers
Association MEBA/AFL-CIO, Local 246, that Ralph A. Cole is guilty
of violating a resolution which prohibited all members of the
union from accepting and working call-in overtime.
(b) Rescind and cancel the fine levied by the Executive Board
of Professional Air Traffic Controllers Association,
MEBA/AFL-CIO,
Local 246 upon Ralph A. Cole for having accepted and worked
call-in overtime and notify him in writing of such action.
(c) Upon request, restore and reinstate Ralph A. Cole to full
membership in Professional Air Traffic Controllers Association,
MEBA/AFL-CIO, Local 246 upon payment by him to the union of any
outstanding back dues.
(d) Post at its business offices and in normal meeting places,
copies of the attached notice marked "Appendix" on forms to be
furnished by the Authority. Upon receipt of such forms, they
shall be signed by an appropriate representative and shall be
posted for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
members are customarily posted. Reasonable steps shall be taken
to insure that such notices are not altered, defaced or covered by
any other material.
(e) Pursuant to section 2423.30 of the Authority's rules and
regulations, notify the Regional Director, Region 2, Federal Labor
Relations Authority, in writing, within 30 days from the date of
the Order, as to what steps have been taken to comply herewith.
WILLIAM NAIMARK
Administrative Law Judge
Dated: April 7, 1981
Washington, D.C.
APPENDIX
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 coerce or discipline Ralph A. Cole, or any other member
of Professional Air Traffic Controllers Organization, MEBA/AFL-CIO,
Local 246, for the purpose of hindering or impeding Ralph A. Cole or the
member's work performance, productivity, or the discharge of his duties
as an employee, by fining or suspending from membership in Professional
Air Traffic Controllers Organization, MEBA/AFL-CIO, Local 246, Ralph A.
Cole, or any other member in that labor organization, because he
accepted and worked call-in overtime.
WE WILL NOT, in any like or related manner, interfere with, restrain
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL rescind and nullify the decision and determination by the
Executive Board of Professional Air Traffic Controller's Association,
MEBA/AFL-CIO, Local 246, that Ralph A. Cole is guilty of violating a
resolution which prohibited all members of the union from accepting and
working call-in overtime.
WE WILL rescind and cancel the fine levied by the Executive Board of
Professional Air Traffic Controllers Association, MEBA/AFL-CIO, Local
246 upon Ralph A. Cole for having accepted and worked call-in overtime
and notify him in writing of such action.
WE WILL, upon request, restore and reinstate Ralph A. Cole to full
membership in Professional Air Traffic Controllers Association,
MEBA/AFL-CIO, Local 246 upon payment by him to the union of any
outstanding back dues.
(Labor Organization)
Dated: . . . By: (Signature)
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 question concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Region 2, whose
address is: 26 Federal Plaza, Room 241, New York, New York, 10278.
--------------- FOOTNOTES$ ---------------
/1/ Unless otherwise indicated, all dates hereinafter mentioned occur
in 1980.
/2/ The record reflects that Cole is still a member of the National
union and has not been suspended therefrom.
/3/ Local 101, PATCO is governed by the same contract as exists
between the parties herein and referred to in paragraphs 2, 3 and 4,
infra.
/4/ The fine was never imposed since the employee resigned from the
union.