14:0644(89)CA - FAA Northwest Mountain Region, Seattle, WA and FAA Washington, DC and PASS -- 1984 FLRAdec CA
[ v14 p644 ]
14:0644(89)CA
The decision of the Authority follows:
14 FLRA No. 89
FEDERAL AVIATION ADMINISTRATION
NORTHWEST MOUNTAIN REGION
SEATTLE, WASHINGTON
and
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
Charging Party
Case Nos. 9-CA-20280
9-CA-20410
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled consolidated proceeding, finding that the Respondent had
engaged in certain unfair labor practices alleged in the complaints, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent, the General
Counsel and the Charging Party filed exceptions to the Judge's Decision;
the General Counsel and the Charging Party both filed oppositions to
the Respondent's exceptions; and the Charging Party additionally filed
cross-exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, as modified below.
The complaint in Case No. 9-CA-20280 alleges that the Respondent,
Federal Aviation Administration (FAA), through its agents at the Seattle
Radar Data Communications Unit, violated section 7116(a)(1) and (5) of
the Statute by unilaterally implementing a change in the practice of
holiday staffing without affording the Professional Airways Systems
Specialists (PASS) the opportunity to negotiate on the impact and
implementation of the change. In Case No. 9-CA-20410, the complaint
alleges the same violation based on the Respondent's failure to provide
PASS with advance notice and an opportunity to negotiate prior to the
implementation of a change in holiday staffing at the Auburn Airways
Facilities Sector.
The facts set forth in the attached Judge's Decision are undisputed.
Briefly stated, PASS was certified in December 1981 as the exclusive
representative for a unit of employees including those located at the
Seattle and Auburn facilities involved herein. Prior to that time, the
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.
Prior to May 1982, the holiday staffing practice at both the Seattle
and Auburn facilities was that if a holiday fell within an employee's
rotating shift or "basic watch schedule," the employee was expected to
work on the holiday and would receive additional compensation for that
day. In early March 1982, the Respondent at the Seattle Radar Data
Communications Unit informed the local PASS representative that, due to
fiscal restraints, only one employee per shift would henceforth be
scheduled to work on holidays. Previously, several shifts, including
those on which a holiday occurred, were staffed by more than one
employee. In response to PASS' request for bargaining, the local
representative was advised that he had been properly "consulted"
concerning the staffing change in accordance with Article 54, Section 2
of the expired FASTA agreement. /1/ The new watch schedule which
reflected the reduced holiday staffing was posted in March and the first
holiday affected by the reduction occurred on May 31, 1982. At the
Auburn facility, management informed the local PASS president and also
notified unit employees on May 3, 1982, of the reduced holiday staffing
and subsequently advised PASS, in response to the latter's written
objections, that management had consulted in good faith in accordance
with the provisions of the FASTA agreement. As in Seattle, the first
holiday affected by the new staffing practice occurred in late May,
1982.
The Judge found, contrary to the Respondent's assertion that its
bargaining obligation was limited to consultation over the change in
holiday staffing, that PASS was not bound by the waiver provision
negotiated by FASTA and contained in Article 54 of the expired FASTA-FAA
agreement. Rather, he found that the Respondent was obligated to
provide PASS with prior notice and an opportunity to bargain over the
impact and implementation of changes in the holiday staffing practice.
Accordingly, the Judge concluded that the Respondent's failure to
properly notify PASS at both facilities and afford it an opportunity to
negotiate pursuant to section 7106(b)(2) and (3) of the Statute, /2/
prior to the implementation of the changes in holiday staffing, violated
section 7116(a)(1) and (5) of the Statute.
In reaching his conclusion, the Judge found that Article 54 of the
FASTA agreement did not create a specific condition of employment which
continued following the expiration of the agreement and the change in
the employees' exclusive representative. He thus distinguished the
instant case from previous Authority decisions in which it was held that
existing personnel policies, practices, and matters affecting working
conditions continue to the maximum extent possible, upon the expiration
of a negotiated agreement, absent an express agreement to the contrary
or unless modified in a manner consistent with the Statute, even where
there has been a change in exclusive representatives. U.S. Nuclear
Regulatory Commission, 6 FLRA No. 9 (1981). See also Department of the
Air Force, 35th Combat Support Group (TAC), George Air Force Base,
California, 4 FLRA 22 (1980), and Department of Defense, Department of
the Navy, Naval Ordnance Station, Louisville, Kentucky, 4 FLRA 760
(1980). The Judge determined that general agreement provisions
restricting or modifying the collective bargaining system provided for
in the Statute, such as that contained in Article 54, do not create
conditions of employment which remain binding following the expiration
of that agreement and a change in exclusive representative, whereas
contract provisions which establish or define specific conditions of
employment such as those identified in the above-cited decisions would
continue following the expiration of an agreement.
As noted by the Judge, the Authority has previously addressed whether
conditions of employment contained in a negotiated agreement continue
following the expiration of that agreement. Thus, in George Air Force
Base (involving negotiated grievance-arbitration procedures), Naval
Ordnance Station, Louisville (involving the composition of a joint
union-management safety committee and promotion practices and
procedures), and Nuclear Regulatory Commission (involving the union's
use of bulletin boards), the Authority determined that the established
personnel policies, practices, and matters affecting working conditions
in question continued, to the maximum extent possible, following the
expiration of each agreement, in the absence of either an express
agreement to the contrary or the modification of those conditions of
employment in a manner consistent with the Statute. In so concluding,
the Authority noted-- and expressly reaffirms herein-- that such a
result fosters stability in Federal labor-management relations, which is
an underlying purpose of the Statute.
In each of these cases, the conditions of employment which were
required to be maintained were conditions established pursuant to the
parties' mutual obligation to negotiate over "mandatory" subjects of
bargaining. The Authority has not yet considered whether these
requirements with regard to the maintenance of existing conditions of
employment which were established pursuant to the parties' mutual
obligation to negotiate over "mandatory" subjects of bargaining as in
the above-cited decisions, apply also to "permissive" subjects of
bargaining-- i.e., those matters which are excepted from the obligation
to negotiate by section 7106(b)(1) of the Statute, /3/ and to those
matters which are outside the required scope of bargaining under the
Statute. We conclude that they do not. Thus, where management elects
to negotiate concerning any matter covered by section 7106(b)(11, and
the parties reach agreement thereon, upon the expiration of that
negotiated agreement either party retains the right to unilaterally
terminate the practice embodied in such a provision. Similarly, where
the parties reach agreement on a matter which is outside the required
scope of bargaining under the Statute, /4/ the Authority concludes that
either party may elect not to be bound thereby upon the expiration of
that agreement. /5/ In other words, either party may reassert its right
not to negotiate with regard to the "permissive" subject of bargaining
in question once the applicable agreement has expired. In reaching this
result, the Authority notes that where parties have elected to bargain
over "permissive" subjects of bargaining and have reached agreement
thereon, stability in Federal labor-management relations can be achieved
by requiring both parties to adhere to those terms during the life of
the parties' agreement while preserving each party's right to terminate
practices embodied in the agreement upon its expiration. Such a result
is also consistent with Congressional intent that in any subsequent
negotiations, either party may elect not to bargain over permissive
subjects.
In the instant case, the Authority finds that Article 54, Section 2
of the FASTA agreement which contained a waiver by FASTA of certain of
its bargaining rights constituted a permissive subject of bargaining.
As such, while the provision was binding on the parties during the life
of their agreement, it was terminated by either party once that
agreement expired. Thus, when the FASTA agreement expired and PASS
replaced FASTA as the employees' exclusive representative, PASS was
entitled to terminate Article 54, Section 2 of the agreement, as it here
sought to do by indicating that it no longer wished to be bound by such
provision but desired instead to exercise its bargaining rights as the
exclusive representative of unit employees. When management at the
Seattle and Auburn facilities then decided to change the practice
concerning holiday staffing, it was obligated to fulfill its bargaining
obligations under the Statute and could no longer insist upon the
continuation of the waiver provision which contained a limitation on its
bargaining obligation. Inasmuch as the change in holiday staffing
concerned a matter falling within the ambit of management rights under
7106(b)(1) of the Statute (supra, n. 3), as conceded by the parties, /6/
management was required to provide advance notice to PASS of such
decision and afford it an opportunity to negotiate concerning the impact
and implementation of the change. The record reveals, and the Judge
found, that the Respondent failed to fulfill its bargaining obligation
in this regard. Accordingly, in agreement with the Judge, the Authority
finds that the Respondent's conduct violated section 7116(a)(1) and (5)
of the Statute.
In remedying the unfair labor practice conduct found herein, the
Authority adopts the Judge's conclusion, for the reasons stated in his
Decision, that a status quo ante order requiring rescission of the
Respondent's changes in holiday staffing at both the Seattle and Auburn
facilities is warranted in the circumstances of this case. See Federal
Correctional Institution, 8 FLRA No. 111 (1982). The Authority further
adopts the Judge's denial of requests by the General Counsel and PASS
for a backpay remedy as to unit employees who purportedly would have
received additional compensation for holidays worked. The Authority has
previously held that in order for a backpay order to be authorized under
the Back Pay Act, 5 U.S.C. 5996, there must be a determination that not
only has an employee been adversely affected by an unjustified or
unwarranted personnel action, but also that but for the improper action
such employee would not have suffered a loss or reduction in pay,
allowances, or differentials. See, e.g., Action and Action Employees
Union, AFSCME, Local 2027, 11 FLRA No. 89 (1983) and American Federation
of Government Employees, Local 1395 and Department of Health and Human
Services, Social Security Administration, 10 FLRA No. 5 (1982). Under
section 7118(a)(7)(C) of the Statute, such requirements apply to backpay
orders issued by the Authority in unfair labor practice proceedings.
See Department of the Air Force, Air Force Systems Command, Electronic
Systems Division, 14 FLRA No. 63 (1984). In the circumstances of this
case, where it cannot be established that, but for the Respondent's
unlawful refusal to bargain over the impact and implementation of the
change in holiday staffing, employees would have worked on various
holidays and therefore would not have suffered a loss of compensation,
the Authority concludes that a backpay order is not warranted.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Federal Aviation Administration, Northwest Mountain Region,
Seattle, Washington, and the Federal Aviation Administration,
Washington, D.C., shall:
1. Cease and desist from:
(a) Changing the holiday staffing practices at the Seattle Radar Data
Communications Unit and the Auburn Airways Facilities Sector, without
first notifying the Professional Airways Systems Specialists, the
employees' exclusive representative, and affording it an opportunity to
bargain concerning the impact and implementation of such changes.
(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 Statute:
(a) Rescind the changes in the holiday staffing practice at the
Seattle Radar Data Communications Unit and the Auburn Airways Facilities
Sector, which changes were effectuated in May, 1982, and restore the
pre-existing practice at both facilities.
(b) Notify the Professional Airways Systems Specialists of any
intended changes in the holiday staffing practice at the Seattle Radar
Data Communications Unit and the Auburn Airways Facilities Sector and
afford it an opportunity to request bargaining concerning the impact and
implementation of such changes.
(c) Post at its facilities at the Seattle Radar Data Communications
Unit and the Auburn Airways Facilities Sector, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Such forms shall be signed by the head of the Northwest
Mountain Region, or his 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 ensure that such
Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, 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 ., May 17, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 holiday staffing practices at the Seattle
Radar Data Communications Unit and the Auburn Airways Facilities Sector
without first notifying the Professional Airways Systems Specialists,
the employees' exclusive representative, and affording it an opportunity
to bargain concerning the impact and implementation of such changes.
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 rescind the changes in the holiday staffing practice at the
Seattle Radar Data Communications Unit and the Auburn Airways Facilities
Sector, which changes were effectuated in May, 1982, and restore the
pre-existing practice at both facilities.
WE WILL notify the Professional Airways Systems Specialists of any
intended changes in the holiday staffing practice at the Seattle Radar
Data Communications Unit and the Auburn Airways Facilities Sector and
afford it an opportunity to request bargaining concerning the impact and
implementation of such changes.
(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 IX, Federal Labor Relations Authority, whose address
is: 530 Bush Street, Room 542, San Francisco, California 94108 and
whose telephone number is: (415) 556-8106.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 9-CA-20280, 9-CA-20410
Mr. J. Donald Payne
Mr. Gary Baldwin
For the Respondent
Joseph E. Kolick, Esquire
For the Charging Party
Stefanie Arthur, Esquire
For the General Counsel
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns two unfair labor practice complaints issued by
the Regional Director, Region Nine, Federal Labor Relations Authority,
San Francisco, California against the Federal Aviation Administration,
Northwest Mountain Region, Seattle, Washington and Federal Aviation
Administration, Washington, D.C. (Respondent or FAA) based on charges
filed by the Professional Airways Systems Specialists (Charging Party or
Union). The complaints alleged essentially identical violations: that
Respondent, through its agents at the Seattle Radar Data Communications
Unit and the Auburn Airway Facilities Sector, unilaterally changed the
holiday staffing policy/practice at each facility, without providing the
Union notice and/or the opportunity to bargain concerning the impact and
implementation of the change prior to its implementation, in violation
of Sections 7116(a)(1) and (5) of the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101 et seq. (the Statute).
In its Answers, Respondent denied that it engaged in any unfair labor
practices and interposed substantially identical defenses: Respondent
admitted that the changes occurred, but contends that the issue of
holiday staffing is a matter bargainable only at the election of the
agency under 5 U.S.C. 7106(b)(1). Respondent contends that the matter
at issue does not constitute a past practice requiring negotiation prior
to any change, but a management practice subject to unilateral change by
the agency. In addition, Respondent contends that, even if there were a
change in past practice over which it had an obligation to bargain, the
right to bargain over such changes has been clearly and unequivocally
waived in the collective bargaining agreement with the prior exclusive
representative which has continued in effect. Respondent contends that
the agency's sole obligation is to consult prior to any such change, and
that it satisfied its obligation in each case. At the hearing,
Respondent also defended on the grounds that it had, in fact, met any
obligation to bargain on impact and implementation.
A hearing was held in Seattle, Washington. The Respondent, Charging
Party, and the General Counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The parties
filed very helpful briefs, and their proposed findings have been adopted
where found supported by the record as a whole. Based on the entire
record, /7/ including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
Background
On December 31, 1981, following an election conducted under the
supervision of the Regional Director of Region 3 of the Federal Labor
Relations Authority, the Union, Professional Airways Systems Specialists
(PASS), was certified as the exclusive representative of a Nationwide
unit of Federal Aviation Administration (FAA) employees in the Airways
Facilities Division. Included in this unit are electronic technicians
employed at the Auburn Airway Facilities Sector, located in the Auburn
Air Route Traffic Control Center, and employees in the Seattle Radar
Data Communications Unit, Seattle Airway Facilities Sector (G.C. Exs.
1(f), (k); 2(f), (g); 3; R. Ex. 2).
Prior to this time, this unit had been represented by the Federal
Aviation Science and Technological Association, National Association of
Government Employees (FASTA). The FAA and FASTA had negotiated a
collective bargaining agreement effective December 1, 1977, which was
still in effect when PASS became the employees' representative. The
agreement provided, in pertinent part, as follows:
Article 7 - Rights and Responsibilities of Union
Representatives
. . . .
Section 2.
. . . .
(d) The Union may designate one representative and one
alternate for each sector field office, radar unit, communication
unit, data unit, navaids unit, environmental support unit, and
combination unit, to deal with first and second level supervisors
at non-air traffic control center sectors.
Section 3. In addition, the Union may designate one sector
representative at each airway facilities sector. The designation
shall be in writing. At the sector representative's option,
he/she may designate, in writing, an alternate to act for him/her
when he/she is absent. Only the sector representative, or in
his/her absence the designated alternate, may deal with the sector
manager and/or his/her designee. During any meeting where the
sector manager is accompanied by other management representatives,
the sector representative may be accompanied by his/her designated
alternate or other representatives so as to allow the Union the
same number of participants at the meeting.
. . . .
Article 40 - Holidays
. . . .
Section 3. To the extent that operational requirements permit,
employees scheduled to work on actual established legal holidays
or days observed in lieu of such holidays shall be given such day
off if they so request.
Section 4. A list of employees assigned to work legal holidays
and days in lieu of holidays shall be posted at least twenty-one
(21) days in advance, and these assignments, once posted, will not
be deleted without consent of the employees involved.
. . . .
Article 54 - Changes In The Agreement
Section 1. The Parties agree to negotiate prior to
implementing changes in personnel policies, practices and matters
affecting working conditions which are within the scope of the
Employer's authority when those changes are in conflict with this
agreement.
Section 2. The Parties agree to consult prior to implementing
changes in personnel policies, practices and matters affecting
working conditions that are within the scope of the Employer's
authority and that are not specifically covered by this agreement.
FASTA agreed to Article 54 several months prior to negotiations
concerning the remainder of the agreement. The quid pro quo for FASTA's
acquiescence to this clause, which the FAA viewed as a waiver of FASTA's
right to bargain concerning mid-term changes in conditions of employment
not specifically covered by the agreement, was the FAA's consent to an
immediate agreement authorizing dues checkoff for FASTA (Tr. 89-93).
/8/
There was no evidence presented that PASS ever ratified or adopted
this agreement. To the contrary, on January 8, 1982, 8 days after PASS
was certified, PASS President Howard E. Johannssen notified FAA
Administrator Helms, in part, that,
* * * PASS will demand strict compliance by the FAA with its
obligation to bargain collectively and to refrain from unilateral
changes. Specifically, PASS demands notification of all proposed
changes affecting conditions of employment and bargaining to the
full extent permitted by law prior to implementation of such
changes. This, of course, includes notice of changes which the
FAA contends may be made unilaterally as a management right, and
full bargaining on impact and implementation procedures,
regarding such changes prior to implementation.
(C.P. Ex. 1). The FAA responded, in part, that it "is well aware of
its obligation to deal with recognized labor unions and will continue to
do so. However, these obligations do not extend to being influenced by
threats and demands of labor organizations. Rhetoric such as that
contained in your January 8 letter has previously worked to the extreme
detriment of another union formerly representing FAA employees" (C.P.
Ex. 2).
Shortly thereafter, on February 2, 1982, Johannssen again wrote Helms
informing him that he was the only PASS representative authorized to
receive notice and conduct negotiations regarding certain proposed
changes. This letter went on to state that,
* * * notice of proposed changes in local or regional
conditions of employment pertaining to other subjects should be
given to the PASS Regional Vice President responsible for the area
affected.
The letter explicitly stated that " * * * unless specific notice to
the contrary is given, local representatives are not authorized to
engage in negotiations or conclude agreements" (C.P. Ex. 3).
On that same date Mr. Johannssen also reiterated the PASS position
with respect to the effect of the FASTA-FAA agreement. In a letter to
FAA Director of Labor Relations E. V. Curran, Johannssen stated that
PASS appreciated the FAA's voluntary decision to abide by the terms of
that agreement. However, he emphasized:
Of course, you should not misunderstand this appreciation to
mean that PASS accepts any waivers of rights contained in the
FASTA agreement. As stated in my January (9), 1982 letter to
Administrator Helms, PASS stands ready to negotiate to the full
extent permitted by law on all appropriate subjects. (C.P. Ex.
4).
Less than one week later, on February 8, 1982, Mr. Curran directed a
memorandum to the labor relations staff in all regional offices. The
memorandum provided, in pertinent part, as follows:
Pending formal negotiations and written agreement at the
national level between FAA and PASS, the following transitional
guidelines are to be applied in labor-management matters involving
PASS.
1. Provisions of Existing Agreements. Consistent with
applicable case law and in the interest of maintaining stability
and predictability in the labor-management relationship during
this period of transition, the terms and provisions of the
FAA/FASTA agreement survive and, to the maximum extent possible,
will remain in full force and effect until expressly modified or
superseded by written agreement between FAA and PASS. Similarly,
the existing agreement between the FAA Eastern Region and NAGE
Local R273 remains in effect until modified or superseded.
2. Other Personnel Policies and Practices. Other personnel
policies and practices generally in effect at the time of
certification of PASS and applicable to the employees in the
national unit of electronic technicians and other related
employees continue as established. Personnel policies and
practices in effect at local facilities also continue as
established. Changes should only be made for significant
operational and sound management reasons and only after
consultation with the authorized PASS regional representatives.
On the same date, Mr. Curran replied to Mr. Johannssen. He
reiterated "the FAA's position that the provisions of the FASTA/FAA
agreement continue in effect until a mutual agreement to the contrary is
reached. Therefore, to the extent your letter of February 2 is not
inconsistent with the provisions of the FASTA/FAA agreement, we concur
in your designation as outlined in that letter."
FAA and PASS have not negotiated a collective bargaining agreement.
The Former Holiday Staffing Practice
The duties of electronic technicians at both the Seattle Radar Data
Communications Unit located at Seattle-Tacoma Airport (SEATAC) and the
Auburn Airway Facilities Sector are to maintain electronic equipment
(radar equipment, computers, communications equipment) necessary for air
traffic control (Tr. 17-18). Technicians work in specialties that
relate to the type of equipment which they are qualified to maintain
(Tr. 44-45). Technicians are required to acquire "certification
authority" with respect to certain pieces of equipment. Only a
technician possessing such authority may "certify" equipment as being in
working order. Not all technicians have certification authority for all
types of equipment within their specialty (Tr. 23-24; 46-47).
Both SEA-TAC and the Auburn Sector are classified by the FAA as
immediate restoration facilities. This means that the equipment at
those facilities receives the highest priority for repair should it fail
to operate properly. Accordingly, FAA regulations provide that
technicians with proper certification authority must be on duty at both
facilities 24 hours a day, 7 days a week (G.C. Exs. 4 & 5; Tr. 21). To
insure such coverage technicians work a rotating schedule known as the
"basic watch schedule" throughout the year (Tr. 25, 47). /9/
FAA headquarters provided broad guidance on assignment of employees
to duty on holidays, but basically left the determination of how many
employees would be assigned to the discretion of local management. The
policy provided, in part, as follows:
81. BASIC POLICY. Employees will not be assigned to duty on
holidays unless work is necessary for the protection of life or
property, is in the interest of the general public, or is
necessary to meet an emergency in which the Government requires
the completion of a particular job without delay. In line with
this general policy, as many employees as feasible in continuously
operating activities (i.e., activities open 16 to 24 hours a day,
7 days a week) will be excused from duty on a holiday; and as
many employees as necessary to meet operating requirements will be
required to work. NOTE: The Absence and Leave Handbook, 3600.4
contains further discussion on holiday benefits, and a listing of
legal holidays designated by law.
Prior to Memorial Day 1982, it is undisputed that, at both
facilities, it was the FAA's practice to schedule employees to work on
holidays no differently than any other day (Tr. 29-30; 52-53; 111-122;
135-136; 150-151). In other words, if the basic watch schedule
provided that a given technician was to work midnight shift on a
holiday, the employee was expected to report for midnight shift unless
he sought and obtained permission to take leave (Tr. 29-30; 52-53).
This was the same procedure followed for any regular day of work; the
employee scheduled to work a given shift reported to work unless he
obtained permission to take leave that day (Tr. 66). Employees receive
an extra day of pay for holiday work (Tr. 70). The Change At the
Seattle Radar Communications Unit
The Seattle Radar Data Communications Unit located at Seattle-Tacoma
Airport (hereinafter referred to as SEATAC or Radar Com) is a unit
within the Seattle Airway Facilities Sector. The Radar Com unit is
concerned with equipment utilized to control air traffic into or out of
the airport (Tr. 24). In March 1982, there were seven technicians in
the Radar Com unit, not all of whom were certified on each piece of
equipment (Tr. 24).
During the first 3 months of 1982, technicians in the Radar Com unit
were scheduled to work holidays in the manner described above (Tr.
29-30; 119). In late February, while preparing the assignments to the
watch schedule for the remainder of the year, Duane Cornell,
Radar/Communication unit supervisor, questioned the necessity of
continuing to schedule all personnel to holiday watches in light of
fiscal restraints. He discussed the matter with Sector manager Ray
Perry. Perry checked with the Region and instructed Cornell to make up
a plan for minimum staffing and to consult with the Union prior to
implementing it (Tr. 103, 120-121). Cornell did not have authority to
negotiate a collective bargaining agreement (Tr. 143).
On the morning of March 2, Cornell called Leo Zmijewski, the Union
representative for the Radar Com unit, into his office. Cornell
informed Zmijewski that, beginning with the new watch schedule, there
would only be one man scheduled per shift on holidays; that reduced
staffing would be the regional policy in order to save money. The
matter was discussed briefly. Zmijewski told Cornell that he did not
believe that management should change the established practice and
advised that somebody would probably file a grievance about the change.
Cornell told Zmijewski that the matter had already gone to arbitration,
and that it was management's decision how they would staff on holidays
(Tr. 30). Zmijewski asked Cornell how he intended to make the holiday
pay equitable, and Cornell responded that he would try to give an even
amount to all employees (Tr. 31, 133). Zmijewski told Cornell that he
would get back to him about it, and the meeting moved on to other labor
management topics (Tr. 31, 135).
The following day, Cornell and Zmijewski had a brief encounter in the
crew area at the shift change during which the topic of changing holiday
staffing was mentioned in passing. Cornell stated he wanted to make
sure Zmijewski understood he was consulting over the change (Tr.
123-124).
Cornell had selected who would work the holidays prior to his
conversation with Zmijewski (Tr. 140). The new watch schedule,
indicating the reduction in staffing on the remaining holidays for the
year, was posted on March 5, 1982 (G.C. Ex. 10, Tr. 34). /10/
On March 8, 1982, Sector manager Perry consulted with Mr. Lloyd
Burrell, PASS sector representative, on the subject of reducing staffing
on holidays. Mr. Burrell indicated that for the present time he had no
comments on the matter. He made no further contact with the sector
manager (Tr. 103, 106).
Thereafter, by letter dated March 11, 1982 to Duane Cornell,
Zmijewski requested to negotiate regarding the change in past practice
of holiday staffing and designated Lawrence A. Sump, PASS regional vice
president as the Union's representative in the matter (G.C. Ex. 8).
Almost 2 months later, on May 7, 1982, Zmijewski received a letter from
Mr. Cornell informing him that consultation, in accordance with Article
54, Section 2 of the FASTA agreement had occurred on March 2 and 3,
1982, and that Respondent had thereby fulfilled its obligations to the
Union (G.C. Ex. 9).
The first holiday affected by the new holiday staffing policy
occurred on Monday, May 31, 1982. Blackett, Curran, and Beetz, who as
part of the regular watch schedule rotation had been scheduled to work
day shift, and Zmijewski, who had been scheduled to work the evening
shift, were scheduled off. The change in holiday staffing has been
applied to the remaining holidays of 1982 (G.C. Ex. 10). The Change at
Auburn Airway Facilities Sector
There are approximately 100 employees, including 25 supervisory and
managerial personnel, in the Auburn Airway Facilities Sector. As with
Seattle, it is undisputed that, until Memorial Day 1982, holidays were
not differentiated on the basic watch schedule at the Auburn Airway
Facilities Sector, and technicians were scheduled to work holidays
whenever their regular rotational assignment occurred on a holiday (Tr.
52-53, 150-151, 163).
Some time after April 2, 1982, Reuben Powell, Auburn sector manager,
received correspondence from Mr. Jack Wichels, Airway Facilities
Division Chief. The letter indicated that holiday staffing should be at
a minimum, and, if necessary, appropriate consultation with the unit
representative should be accomplished prior to placing this holiday
scheduling into operation (Respondent Ex. 6). Upon inquiring, Mr.
Powell learned his facility was staffing holidays by the basic work
schedule and was permitting double crews to work holidays. Mr. Powell
determined that such staffing was unnecessary and asked the assistant
sector manager to devise a proposed schedule for the remainder of the
year, whereby only one crew would be scheduled for each holiday, and
each crew would be required to receive equal exposure to holiday work.
Such a schedule was prepared, and Mr. Frank Bruno, local PASS president
and the Union's local representative at Auburn, was asked to attend a
meeting on May 3, 1982, at which the proposed new schedule would be
discussed (Tr. 150-152). Powell did not have authority to negotiate or
conclude a collective bargaining agreement (Tr. 165).
On May 3, 1982, Union representative Bruno met with Sector manager
Reuben Powell and Assistant Sector manager Temple (Tr. 53-54). When he
arrived at the meeting, and after the usual greetings, Powell handed
Bruno a letter, dated May 3, 1982, addressed to all watchstanders,
advising them of his decision to implement minimum staffing on holidays
(G.C. Ex. 14). The letter specified the change in assignments for the
crews on the Computer Display Channel (CDC) unit, Central Computer
Complex (CCC) unit, and Communications watch schedule (G.C. Ex. 11), and
stated that it "shall be posted and serves the 21-day notification
requirement per Article 40, Section 4 of the FASTA Agreement." The
letter also directed the Unit Chiefs of Radar and Environmental Support
Unit (ESU) to adjust their work schedules to conform with Powell's
designated minimum staffing and to post such work schedules at least 21
days prior to the holiday as required by Article 40, Section 4 of the
FASTA agreement (G.C. Ex. 14).
After Bruno had an opportunity to review Powell's letter, Powell
explained his rationale for making the change and a discussion of the
change followed. Bruno commented that he thought the action was
illegal; that he assumed employees would be upset and file grievances
over the change; and, in response to Powell's assertion that he had
authority to make the change under the FASTA agreement simply by
providing 21 days notice, Bruno indicated that PASS was not bound by the
contract. Mr. Bruno also indicated that he thought Powell's method of
determining which crews would be affected by the change was unfair,
since only four of five crews were affected (Tr. 54-55).
That afternoon, Powell's May 3, 1982 letter was distributed to the
employees. Shortly thereafter, the Radar Unit Chief issued a letter
designating which employees would be scheduled to work the remaining
holidays of 1982 (G.C. Ex. 17).
The following day, Bruno prepared a letter to Jack Wichels, Chief of
the Airways Facilities Division, in which, among other things, he
objected to Powell's conduct in informing him of the change after the
decision had already been made, rather than consulting, or deliberating
with the Union, consistent with the agency's moral and legal obligation
to bargain in good faith with the Union. Bruno requested that Powell's
May 3 letter be rescinded, and questioned why, if the change were
directed by Wichels, no prior consultation had taken with the Union's
regional representative (G.C. Ex. 15).
Wichels did not respond to Bruno. Instead, 21 days later, Bruno
received a letter dated May 25, 1982 from Reuben Powell. Powell stated
he was responding as the appropriate official under the FASTA agreement
with whom Bruno was permitted to deal. Powell advised Bruno that
management had consulted in good faith, and in accordance with the
provisions of the FASTA agreement, on May 3, 1983 prior to issuing the
letter on holiday coverage (G.C. Ex. 16).
Thereafter, on May 31, 1982, the first holiday affected by Powell's
May 3 change, occurred. The following employees did not work the
holiday as previously scheduled: Crew 1 on G.C. Ex. 11; Keefer,
Hackett and Henderson in Radar; and either Crew 2 or Crew 5 in ESU.
The changes effected by Powell's May 3, 1982 letter have been followed
on subsequent holidays. The Impact of the Changes
The changes in holiday staffing policy resulted in a loss of holiday
pay to those employees who had been scheduled to work holidays, but were
now told these work assignments were cancelled (Tr. 35-37; 61-62). In
addition, since the workload of electronic technicians does not decrease
on holidays (Tr. 140), the change means that the workload of employees
assigned to work holidays is increased and/or some of the work must be
done later in the week (Tr. 36). It also increases the chances that
employees not scheduled to work will be required to report to work if
equipment fails for which no technician on duty possesses certification
authority (Tr 37; 61-63).
Issues
1. Whether Article 54, Section 2 of the FAA/FASTA agreement is
binding on PASS, the newly certified Union, and limits it to
consultation rights rather than the statutory right to negotiate
concerning changes in terms and conditions of employment not
specifically covered by the agreement.
2. If not, whether Respondent had the obligation to bargain with the
Union regarding the impact and implementation of the changes in holiday
staffing.
3. If so, whether Respondent met its obligation to bargain in good
faith. Position of the Parties
The General Counsel and the Charging Party contend that the waiver
contained in Article 54 of the FAA/FASTA agreement may not be applied so
as to foreclose PASS, the newly certified Union, from the exercise of
its statutory right to bargain. Therefore, they claim that Respondent
had the obligation to bargain with the Union regarding the impact and
implementation of the changes in holiday staffing. They argue that
Respondent's conduct in "consulting" with the Union did not satisfy its
statutory bargaining obligation, and that, accordingly, Respondent
violated sections 7116(a)(1) and (5) of the Statute.
Respondent defends on the basis that Article 54 of the FAA/FASTA
agreement provides for a clear and unequivocal waiver of the Union's
right to negotiate over changes in terms and conditions of employment
not specifically covered by the agreement, such as changes in holiday
staffing which are not specifically covered by the FAA/FASTA agreement.
This waiver, Respondent maintains, is binding on FAA and PASS under the
Authority's decision in U.S. Nuclear Regulatory Commission and National
Treasury Employees Union, 6 FLRA No. 9 (1981). Respondent asserts that
it fully met its obligation under Article 54 to consult with PASS. If
PASS is not bound by the waiver, Respondent contends that PASS is still
not entitled to any relief. Respondent claims that PASS only requested
to bargain concerning the decision to reduce staffing. Respondent
contends that this decision essentially involved the number of employees
required for holiday crews, and it has not elected to bargain over the
decision pursuant to its rights under section 7106(b)(1) of the Statute.
Respondent also asserts that in the limited instance when the Union did
refer to impact and implementation matters, it responded affirmatively
and met any obligation to bargain in good faith.
Discussion and Conclusions
It is well established that, even where an agency's decision to
change a past practice involves the exercise of a reserved management
right under the Statute, the agency is required to notify the employees'
exclusive representative before making the change and to afford the
exclusive representative an opportunity to bargain, upon request,
concerning the procedures to be used in implementing the change and on
appropriate arrangements for employees adversely affected by the change.
Department of the Interior, U.S. Geological Survey, 9 FLRA No. 65
(1982). Any waiver of such a statutory right must be clear and
unmistakable. Department of the Air Force, Scott Air Force Base, 5 FLRA
No. 2 (1981).
Respondent contends that Article 54, Section 2 of the FAA/FASTA
agreement, supra, provides such a clear and unequivocal waiver of the
union's right to negotiate over changes in terms and conditions of
employment not specifically covered by the agreement, such as changes in
holiday staffing. This waiver, Respondent maintains, is binding on FAA
and PASS under the Authority's decision in U.S. Nuclear Regulatory
Commission, supra. It is also Respondent's position that the terms and
conditions of employment as found in the agreement are inextricably
linked to the waiver provision. Respondent argues that but for the
waiver provision, the terms and conditions of employment as expressed in
the agreement would be significantly different. Therefore, Respondent
contends that a finding that the waiver provision continues in effect
and binds PASS would foster the stability of the new bargaining
relationship and is consistent with Nuclear Regulatory Commission and
represents a logical extension and application of that decision.
The General Counsel and the Charging Party do not disagree that
Article 54, Section 2 contains such a waiver, but they argue that
Article 54 of the FAA/FASTA agreement may not be applied so as to
foreclose PASS, the successor union to FASTA, from the exercise of its
statutory right to bargain.
In U.S. Nuclear Regulatory Commission, supra, the Authority concluded
that a clause relating to the union's use of bulletin boards in an
expired agreement created a condition of employment which remained
binding in its entirety despite the agreement's expiration and the
change of exclusive representative. The Authority stated:
In agreement with the Judge's findings and conclusions, the
Authority holds that the clause relating to bulletin boards in the
expired agreement created a condition of employment which remains
binding in its entirety despite the agreement's expiration and the
change of exclusive representative. In the Authority's opinion,
the purposes and policies of the Statute are best effectuated by a
requirement that existing personnel policies, practices, and
matters affecting working conditions continue, to the maximum
extent possible, upon the expiration of a negotiated agreement,
absent an express agreement to the contrary or unless modified in
a manner consistent with the Statute. Such a result fosters
stability in Federal labor-management relations, which is an
underlying purpose of the Statute. See Department of Defense,
Department of the Navy, Naval Ordnance Station, Louisville,
Kentucky, 4 FLRA No. 100 (1980); and Department of the Air Force,
35th Combat Support Group (TAC), George Air Force Base,
California, 4 FLRA No. 5 (1980). We see no distinction in the
circumstances of this case where there has been a change in the
exclusive representative since the expiration of the agreement.
The stability of the new bargaining relationship is enhanced by a
required maintenance of existing personnel policies and practices,
and matters affecting working conditions pending the negotiation
of a new agreement.
The General Counsel and the Union would limit the application of
Nuclear Regulatory Commission to contract provisions which establish or
define existing personnel policies, practices and terms and conditions
of employment while excluding any waiver of a statutory right or matter
concerned solely with the statutory relationship between the parties.
In my view, such a distinction has merit. As the Authority found in
Nuclear Regulatory Commission, the clause relating to bulletin boards in
the expired agreement created a specific condition of employment.
Specific personnel policies, practices, and matters affecting working
conditions were also identified in the agreements involved in Department
of Defense, Department of the Navy, Naval Ordnance Station, Louisville,
Kentucky and Department of the Air Force, 35th Combat Support Group
(TAC), George Air Force Base, California, cited by the Authority. By
contrast, the provisions involved here, Article 54, Section 2, does not
deal with holiday staffing, or with any other specific condition of
employment. Rather, it is an agreement by FAA and FASTA to "consult
prior to implementing changes in personnel policies, practices, and
matters affecting working conditions that are within the scope of the
Employer's authority and that are not specifically covered by this
agreement." In my view, unlike the clauses in Nuclear Regulatory
Commission, et al., Article 54, Section 2, deals with the union's
general bargaining relationship with the employer concerning changes not
covered by the agreement and did not create a condition of employment
which remains binding despite the agreement's expiration and the change
of exclusive representative. In short, contract provisions restricting
or modifying the collective bargaining system provided for in the
Statute, unlike contract provisions establishing or defining existing
personnel policies, practices, and matters affecting working conditions
do not survive the certification of a new and distinct bargaining agent.
/11/ Cf. Marine and Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir.
1963).
There is some precedent for this view under Executive Order No.
11491, as amended. The Federal Labor Relations Council held in Internal
Revenue Service, Ogden Service Center, et al. and Internal Revenue
Service, Brookhaven Service Center, 6 FLRC 310 (1978) that the parties
were not obligated to maintain all provisions in an expired negotiated
agreement. The Council held that, upon expiration of an agreement and
absent agreement to the contrary, the agency was not required to
maintain provisions relating to "permissive" subjects of bargaining, and
the parties were not required to maintain provisions relating to matters
outside the scope of bargaining. It was also necessary that the
agreement be brought into conformance with changes in laws and
regulations. Cf. Office of Program Operations, Field Operations, Social
Security Administration, San Francisco Region, 10 FLRA No. 36, 10 FLRA
172, 178-179 (1982).
The right which the Authority recognized in Nuclear Regulatory
Commission, supra, use of agency bulletin boards, was a right gained
only by contract, not one provided by the Statute. Thus, that holding
did not deprive the union of rights to which it was otherwise entitled
by law. By contrast, the right of PASS to bargain is not dependent upon
its ability to secure such a right in a collective bargaining agreement.
Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, supra. Rather, it is a right
that, by Congressional command, is a natural consequence of
certification. /12/ To adopt the position urged by the FAA would force
PASS to negotiate an agreement to gain the right to negotiate. This is
surely not the situation Congress wished to create when it provided
federal employees statutory protection of the right "to organize,
bargain collectively, and participate through labor organizations of
their own choosing in decisions which affect them . . . (.)" 5 U.S.C.
7101(a)(1). See also 5 U.S.C. 7102(2). Cf. Timken Roller Bearing Co.
v. NLRB, 325 F.2d 746, 751 (6th Cir. 1963) (distinguishing between the
failure to gain contractual rights and the waiver of rights secured by
statute).
Extension of the rule in Nuclear Regulatory Commission to the waiver
in this case would force the newly certified Union to enter the
collective bargaining relationship already deprived of its most
fundamental right and thereby unable from the onset to function as
contemplated by the Statute. Moreover, application of FASTA's waiver to
the newly certified Union would effectively nullify the mandate of the
employees who have selected PASS to replace FASTA as their exclusive
representative. During the several years it sometimes takes to
negotiate a full agreement, the new representative would be a mere
shadow of the effective bargaining representative contemplated by the
Statute. Continuation of the limited right to consult would require the
new Union to bail with a sieve until a new agreement is reached.
Management would be completely free to institute sweeping changes in
conditions of employment not specifically covered by the agreement
without first bargaining with employees through the representative they
have selected to the extent provided for by the Statute.
In the present instance, FAA changed a practice concerning holiday
staffing which was one of long duration. Extension of the rule in
Nuclear Regulatory Commission so as to bind the newly certified
collective bargaining representative to its predecessor's waiver of its
statutory right to bargain in such circumstances would be to diminish,
rather than enhance, the new relationship with no concomitant
stabilizing benefit regarding those conditions of employment not
specifically addressed in the agreement. Such a result would also not
be "consistent with the established framework of the Statute which
provides for the peaceful resolution of bargaining disputes and
'facilitates and encourages the amicable settlement of disputes between
employees and their employers involving condition of employment,' which
is an underlying purpose of the Statute." Department of the Air Force,
35th Combat Support Group (TAC), George Air Force Base, California, 4
FLRA No. 5 (1980).
In an analogous situation in the private sector, it is the rule that
where a contract is no bar to the conduct of a representational
election, then it similarly cannot prevent full collective bargaining by
the newly selected representative. In the lead case adopting this
principle, American Seating Co., 106 NLRB 250, 32 LRRM 1439 (1953), the
employer had argued that the contract negotiated by UAW for its
plant-wide unit still controlled a group of employees who had voted for
a separate unit to be represented by the Patternmakers. The employer
contended that the Patternmakers would not have the right to negotiate a
new agreement until expiration of the UAW contract. The right to
negotiate a new agreement is conceded here, and we are concerned only
with the waiver by the former representative of the right to negotiate
concerning changes not specifically covered by the agreement. However,
in rejecting the employer's arguments, the Board eloquently stated its
rationale in terms equally applicable to the instant situation:
Although the certification of October 6, 1952, gave the Pattern
Makers immediate status as exclusive representative 'in respect to
rates of pay, wages, and hours of employment,' the Respondent
would qualify the Pattern Makers' authority as to these subjects
by adding, 'after July 1, 1953.' If the Respondent's contention is
sound, a certified bargaining representative might be deprived of
effective statutory power as to the most important subjects of
collective bargaining for an unlimited number of years as the
result of an agreement negotiated by an unwanted and repudiated
bargaining representative. There is no provision in the statute
for this kind of emasculated certified bargaining representative.
Id., 106 NLRB at 255. Additionally, the Board noted that the
National Labor Relations Act provides employees dissatisfied with their
present bargaining representative the opportunity to select a new
representative through a Board conducted election. The Board said that
this policy would be defeated entirely by saddling the new bargaining
representative with the contractual errors of its predecessor:
* * * if a newly chosen representative is to be hobbled in the
way proposed by the Respondent, a great part of the benefit to be
derived from the no-bar rule will be dissipated. There is little
point in selecting a new bargaining representative which is unable
to negotiate new terms and conditions of employment for an
extended period of time.
Id.
As noted, the Statute provides that upon certification, a bargaining
representative " * * * is entitled to act for, and negotiate collective
bargaining agreements covering, all employees in the unit." 5 U.S.C.
7114(a)(1). Further, the Statute makes it an unfair labor practice " *
* * to refuse to consult or negotiate as required by this chapter." 5
U.S.C. 7116(a)(5). Thus, the right of a union and the corresponding
obligation of an agency to bargain flow directly from the Statute and
vest upon certification. Like the analogous right conferred by the
National Labor Relations Act, the right to bargain conferred by the
Statute cannot be defeated for years by a waiver executed by an
"unwanted and repudiated" bargaining agent.
Respondent argues in effect that it gives the Union an unfair
advantage if it is not bound by such a waiver, but obtains the benefits
of other articles setting forth specific conditions of employment which
might not be in the agreement but for the waiver. However, management
is not rendered powerless to make changes in such conditions of
employment. It has been held that management's obligation to adhere to
existing conditions of employment to the maximum extent possible does
not prevent management from making changes in otherwise negotiable
conditions of employment where such changes are required consistent with
the necessary functioning of the agency. Cf. United States Department
of Justice, United States Immigration and Naturalization Service, 9 FLRA
No. 36 (1982). In other circumstances, existing conditions of
employment expressly set forth in the agreement can be modified in a
manner consistent with the bargaining obligation of the Statute.
Nuclear Regulatory Commission, supra.
The FAA's position literally flies in the face of the rule, noted at
the outset, that, absent a "clear and unmistakable waiver," a certified
bargaining representative has a statutory right to bargain on all
proposed changes to conditions of employment. Department of the Air
Force, Scott Air Force Base, supra. There is no evidence that PASS ever
waived its right to bargain, or has ever elected to consult rather than
negotiate changes in working conditions. In fact, the record evidence
conclusively demonstrates the Union's insistence on enforcing its
statutory right to negotiate over changes in working conditions.
It is concluded that the Union is not bound by the waiver contained
in the FASTA agreement. Respondent was, therefore, obligated to provide
the Union with the notice and the opportunity to bargain, in accordance
with the requirements of the Statute, regarding the impact and
implementation of the changes in holiday staffing practices.
Whether Respondent's Conduct In "Consulting" With the Union Satisfied
Its Statutory Bargaining Obligation
Respondent argues that it met any obligation to bargain in good faith
regarding the impact and implementation of the changes in holiday
staffing notwithstanding that it described its conduct as
"consultation." The facts demonstrate that such a contention is without
merit.
First, the FAA studiously ignored PASS' request that notice of
proposed changes was to be provided to PASS Regional Vice-President Sump
and attempted to discuss the changes with representatives that it had
been informed had no authority to negotiate. An agency has an
obligation to provide notice to, and bargain with, the person or persons
designated by the exclusive representative, and failure to do so itself
violates the Statute. Department of Health and Human Service, Social
Security Administration, Field Assessment Office, Atlanta, Georgia, 11
FLRA No. 78 (1983); Northeastern Program Service Center, 1 FLRA 779,
790 (1979). See also, American Federation of Government Employees,
AFL-CIO, 4 FLRA No. 39 (1980); Philadelphia Naval Shipyard, 4 FLRA No.
38 (1980). Accordingly, it must be held that proper notice was not
provided.
Second, the individuals who did "consult" on behalf of the FAA all
admitted that they did not have authority to conclude agreements.
Absent representatives with such authority, the FAA could not fulfill
its duty to bargain as defined by the Statute. 5 U.S.C. 7114(b)(2) and
(5).
Finally, it is manifest that the FAA agents did not approach the
discussions with local PASS representatives with "a sincere resolve to
reach a collective bargaining agreement." 5 U.S.C. 7114(b)(1); 5 U.S.C.
7103(a)(12). Respondent by its instruction to supervisors Cornell and
Powell precluded the existence of the prerequisite "good faith"
necessary under the Statute. Respondent has at all times maintained
that its only obligation with respect to the Union was to consult. This
was the policy promulgated to its managers following the certification
of PASS. It was the position it insisted on in its communications with
PASS. And it was the direction given to both Cornell and Powell in
dealing with the instant changes. Given that restriction, it is evident
that Respondent's representatives could not approach the Union with the
open mind and intent to reach agreement which is a prerequisite for
collective bargaining negotiations.
By the same token, neither during Cornell's March 2 meeting or March
3 encounter with Zmijewski, nor during Powell's May 3 meeting with Bruno
can Respondent be found to have engaged in collective bargaining. At
best, some sort of limited discussion regarding the change occurred at
each meeting, but such discussion, with no attempt to reach agreement,
is not good faith bargaining. Respondent's unwillingness to discuss the
issues with an open mind, and to engage in a "give and take"
relationship foreclosed any possibility of meaningful collective
bargaining. Internal Revenue Service and Brookhaven Service Center,
IRS, 4 FLRA No. 30 (1980).
Moreover, neither at SEATAC nor at Auburn did Respondent provide the
Union with an adequate opportunity to respond prior to its announcement
of the changes to the employees. Although both Mr. Zmijewski and Mr.
Bruno indicated their disagreement with the changes in holiday staffing
proposed at their respective facilities, and although both indicated
their intent to get back to management or take further action, the new
watch schedule, with its changes in holiday staffing was posting at
SEATAC within 3 days of Cornell's "notice" to Zmijewski, and, at Auburn,
the letter to all employees advising them of the change was distributed
the very same afternoon. In neither case has Respondent demonstrated
any exigency which warranted its premature announcement of the change to
the employees.
Respondent, however, suggests that because Zmijewski did not offer
any specific proposals during the March 2 meeting, or in the March 3
encounter with Cornell; or because Bruno did not make any specific
proposals during his meeting with Powell on May 3, the Union somehow
waived any rights it might have to negotiate the change, thus permitting
Respondent to proceed with its announcements. Respondent is mistaken.
The Union does not forego its right to bargain because it does not
present proposals at the instant it is advised of a change. The Union
representatives did make known their objections to the change and each
raised issues regarding equalization. The Union is entitled to a
reasonable opportunity to consider management's proposals, consistent
with the nature of the change which is proposed and its anticipated
implementation date. In the absence of an express waiver Respondent can
conclude that the Union has acquiesced in its changes and proceed with
implementation only after a reasonable time has expired. Cf. Bureau of
Government Financial Operations Headquarters, 11 FLRA No. 68 (1983);
United States Department of Defense, Department of the Army,
Headquarters, Fort Sam Houston, Texas, 8 FLRA No. 112 (1982).
Thus, neither at SEATAC or Auburn did Respondent give the Union a
reasonable opportunity to respond before its announcement of the changes
to the employees. /13/ In fact, when the Union representatives did
thereafter, and in timely fashion, request to bargain, Respondent
delayed its responses and refused to negotiate regarding the changes.
The record does not support Respondent's position that the Union
representatives limited their requests to "decision" bargaining. See
Department of the Treasury, United States Customs Service, Region 1,
Boston, Massachusetts, et al., 10 FLRA No. 100 (1982). In his letter of
March 11, Leo Zmijewski indicated his position that the established
practice of holiday staffing continue, specifically requested to
negotiate if management intended to change that practice, and designated
Lawrence Sump, PASS Regional Vice President as the Union representative
for that purpose. Although there was still ample opportunity for the
parties to engage in collective bargaining prior to the May 31 holiday,
Respondent delayed almost 2 months, until May 7, before responding to
the Union's request. It then, ignored the Union's designation of its
representative, responded to Mr. Zmijewski, and advised him that it had
already met its obligation to the Union by its consultation of March 2
and 3.
Similarly, Bruno's May 4 letter to Division Chief Wichels, which was
routed through Powell's office, must also be construed as a request to
bargain. Although Powell insists that no request to bargain was ever
directed to him, in fact it was he who responded to Bruno's letter. In
Powell's response, some 21 days later, and only a few days before the
affected holiday, Respondent again refused to bargain on grounds that it
had already met its obligation to consult with the Union regarding the
change.
In light of the foregoing, it is concluded that Respondent's
"consultations" with the Union, both at SEATAC and Auburn, were
inadequate to comport with its statutory obligation to provide the Union
proper notice and the opportunity to negotiate, pursuant to sections
7106(b)(2) and (3), prior to implementation of the changes in holiday
staffing. Respondent's conduct, both at SEATAC and Auburn, constituted
refusal to bargain in good faith with the exclusive representative and
unfair labor practices in violation of sections 7116(a)(1) and (5) of
the Statute.
The General Counsel seeks, in addition to a cease and desist order
and posting in both cases, a status quo ante remedy, including a make
whole order, with respect to the Auburn case. The Charging Party seeks
a return to the status quo ante in both cases and back pay for those
technicians who would have worked holidays under the old policy and were
denied the opportunity to do so.
The Authority has held that the nature and circumstances of the
violation must be balanced against the degree of disruption in
government operations that would be caused by such a remedy. The
Authority set forth in Federal Correctional Institution, 8 FLRA No. 111
(1982) the various factors which must be considered.
In the present cases, consideration of these factors necessarily
leads to conclusion that the remedy must include restoration of the
status quo ante. As detailed supra, no proper notice was provided and
that which was provided came on the eve of implementation. Despite the
FAA's refusal to notify the proper PASS official, the local
representatives who were notified requested bargaining in a reasonably
prompt manner. As to the willfulness of the agency's conduct, this
factor is strongly in FAA's favor. The sole reason for the agency's
failure to discharge its bargaining obligation under the Statute was
because it felt it was obligated to adhere to the agreement negotiated
with FASTA under the Authority's Nuclear Regulatory Commission decision.
With respect to impact, the change in staffing policy resulted in a
loss of pay, an increased workload on holidays, and an increased chance
that employees with holiday leisure plans would be called back to work
because of short staffing under the new policy. The record does not
indicate that such a remedy would create a serious disruption in
Respondent's operation, but would merely require the FAA to return to a
policy that it voluntarily followed for years. Accordingly, under all
the circumstances, it is concluded that a status quo ante remedy is
warranted.
In order for retroactive back pay to be authorized under the Bach Pay
Act, /14/ there must be a determination not only that the employee has
suffered an unjustified or unwarranted personnel action within the
meaning of the Act, but also that such action directly resulted in the
denial of back pay that the aggrieved employee would otherwise have
received. Picatinny Arsenal, U.S. Army Armament Research and
Development Command, Dover, New Jersey, 7 FLRA No. 109 (1982); American
Federation of Government Employees, Local 2811, 7 FLRA No. 97 (1982);
Veterans Administration Hospital, 4 FLRA No. 57 (1980).
It is not possible to conclude from the record that by the FAA's
failure to negotiate on impact and implementation the technicians
previously scheduled to work holidays under the old policy were affected
by unjustified or unwarranted personnel action which directly resulted
in the loss of pay. To put it another way, it appears that back pay
would not be appropriate in the absence of a finding that the
technicians would have worked the holidays had negotiations occurred.
It is not possible to draw this conclusion from the record.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Statute, the
Authority hereby orders that the Federal Aviation Administration,
Northwest Mountain Region, Seattle, Washington and the Federal Aviation
Administration, Washington, D.C. shall:
1. Cease and desist from:
(a) Changing the holiday staffing practices at the Auburn
Airway Facilities Sector, Auburn Air Route Traffic Control Center,
and the Seattle Radar Data Communications Unit, Seattle-Tacoma
Airport, or otherwise changing established past practices
affecting the working conditions of employees represented
exclusively by the Professional Airways Systems Specialists,
without first notifying the Professional Airways Systems
Specialists of its intention and affording it the opportunity to
negotiate in good faith to the extent consonant with law and
regulation.
(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 Statute.
(a) Rescind the 1982 changes in holiday staffing practices at
the Auburn Airway Facilities Sector, Auburn Air Route Traffic
Control Center, and the Seattle Radar Data Communications Unit,
Seattle-Tacoma Airport and restore all conditions of employment
regarding these matters which were in effect prior to such
changes.
(b) Notify the Professional Airways Systems Specialists of any
intention to change the holiday staffing practices at the Auburn
Airway Facilities Sector, Auburn Air Route Traffic Control Center,
and the Seattle Radar Data Communications Unit, Seattle-Tacoma
Airport, or any other change in established past practices
affecting the working conditions of employees represented
exclusively by the Professional Airways Systems Specialists, and,
upon request, negotiate in good faith to the extent consonant with
law and regulation.
(c) Post at its facilities at the Auburn Air Route Traffic
Control Center and the Seattle Radar Data Communications Unit
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 the Director of Labor Relations and shall be
posted and maintained by him for 60 consecutive days thereafter,
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted. The
Director shall take reasonable steps to insure that such notices
are not altered, defaced, or covered by any other material.
(d) Pursuant to 5 C.F.R.section 2423.30 notify the Regional
Director, Region Nine, Federal Labor Relations Authority, San
Francisco, California, in writing, within 30 days from the date of
this order, as to what steps have been taken to comply herewith.
GARVIN LEE OLIVER
Administrative Law Judge
Dated: April 25, 1983
Washington, DC
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
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT change the holiday staffing practices at the Auburn
Airway Facilities Sector, Auburn Air Route Traffic Control Center, and
the Seattle Radar Data Communications Unit, Seattle-Tacoma Airport, or
otherwise change established past practices affecting the working
conditions of employees represented exclusively by the Professional
Airways Systems Specialists without first notifying the Professional
Airways Systems Specialists of our intention and affording it the
opportunity to negotiate in good faith to the extent consonant with law
and regulation.
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 the 1982 changes in holiday staffing practices at the
Auburn Airway Facilities Sector, Auburn Air Route Traffic Control
Center, and the Seattle Radar Data Communications Unit, Seattle-Tacoma
Airport and restore all conditions of employment regarding these matters
which were in effect prior to such changes.
WE WILL notify the Professional Airways Systems Specialists of any
intention to change the holiday staffing practices at the Auburn Airway
Facilities Sector, Auburn Air Route Traffic Control Center, and the
Seattle Radar Data Communications Unit, Seattle-Tacoma Airport, or any
other change in established past practices affecting the working
conditions of employees represented exclusively by the Professional
Airways Systems Specialists, and, upon request, negotiate in good faith
to the extent consonant with law and regulation.
(Agency or Activity)
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 questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region Nine,
whose address is: 530 Bush Street, Room 542, San Francisco, California
94108, and whose telephone number is (415) 556-8106.
--------------- FOOTNOTES$ ---------------
/1/ Article 54 of the agreement provides as follows:
ARTICLE 54 - CHANGES IN THE AGREEMENT
Section 1. The Parties agree to negotiate prior to
implementing changes in personnel policies, practices, and matters
affecting working conditions which are within the scope of the
Employer's authority when those changes are in conflict with this
agreement.
Section 2. The Parties agree to consult prior to implementing
changes in personnel policies, practices and matters affecting
working conditions that are within the scope of the Employer's
authority and that are not specifically covered by this agreement.
/2/ Section 7106(b)(2) and (3) provides as follows:
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
. . . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
/3/ Section 7106(b)(1) provides as follows:
(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/ As the Authority has previously stated, the parties may, but are
not obligated to, bargain as to matters which do not concern conditions
of employment of bargaining unit employees, i.e., are permissive in
nature and therefore outside the required scope of bargaining. See,
e.g., International Association of Fire Fighters, Local F-61 and
Philadelphia Naval Shipyard, 3 FLRA 438 at 445 (1980); Department of
the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 11
FLRA No. 66 (1983); American Federation of Government Employees,
AFL-CIO, 4 FLRA 272 (1980); Department of Health and Human Services,
Region IV, Atlanta, Georgia, 9 FLRA No. 150 (1982); Department of the
Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 10 FLRA No. 53 (1982).
/5/ As noted by the Judge at page 14 of his Decision, the foregoing
principles were applicable under Executive Order 11491, as amended.
/6/ See, e.g., American Federation of Government Employees, Local
3669, AFL-CIO and Veterans Administration Medical Center, Minneapolis,
Minnesota, 2 FLRA 641 (1980); National Federation of Federal Employees,
Local 1167 and Department of the Air Force, Headquarters, 31st Combat
Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA No. 105
(1981) (Union Proposal 6), aff'd on other grounds, NFFE, Local 1167 v.
FLRA, 681 F.2d 886 (D.C. Cir. 1982).
/7/ The General Counsel's unopposed motion to correct the transcript
is granted; the transcript is hereby corrected as set forth therein.
/8/ The FASTA-FAA agreement was negotiated prior to enactment of the
Statute, which eliminated the need of an exclusive representative to
negotiate dues checkoff agreements. 5 U.S.C. 7115.
/9/ For example, a given technician might work afternoon shift from
Tuesday through Saturday one week, have three days off and work
Wednesday through Monday on day shift, and so forth throughout the year.
(See G.C. Exs. 6, 7, 11, 12, 13).
/10/ There was apparently a problem with the schedule as posted on
March 5 unrelated to the change in holidays; the schedule was corrected
and reposted on Monday, March 8, 1982 (Tr. 34).
/11/ My colleague, Judge Salvatore J. Arrigo, reached the opposite
conclusion with respect to Articles 54 and 37 of the same agreement in
Department of Transportation, Federal Aviation Administration, Los
Angeles, California, OALJ-83-64, Case No. 8-CA-20260 (March 11, 1983).
Judge Arrigo pointed out the broad language of the Authority's language
in Nuclear Regulatory Commission, and noted, "(T)here is no indication
given in Nuclear Regulatory Commission that the Authority is inclined to
approach the matter in a manner whereby the express waiver of a
statutory right concerning a union's relationship with an employer would
be treated differently from any other contractual term and condition of
employment."
/12/ In this connection, section 7114(a)(1) and (b)(3) of the Statute
provides, in relevant part, as follows:
Sec. 7114. Representation rights and duties
(a)(1) A labor organization which has been accorded exclusive
recognition is the exclusive representative of the employees in
the unit it represents and is entitled to act for, and negotiate
collective bargaining agreements covering, all employees in the
unit. . . .
. . . .
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
. . . .
(3) to meet at reasonable times . . . as frequently as may be
necessary. . . .(.)
The phrase, "collective bargaining," in turn, is defined in section
7103(a)(12) of the Statute as follows:
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
. . . .
(12) "collective bargaining" means the performance of the
mutual obligation of the representative of an agency and the
exclusive representative of employees in an appropriate unit in
the agency to meet at reasonable times and to consult and bargain
in a good faith effort to reach agreement with respect to the
conditions of employment affecting such employees and to execute,
if requested by either party, a written document incorporating any
collective bargaining agreement reached, but the obligation
referred to in this paragraph does not compel either party to
agree to a proposal or to make a concession(.)
/13/ Respondent's evidence, purporting to show that Ray Perry gave
notice of the change in the Data Com unit to Union representative Lloyd
Burrell who, by his silence, concurred in the change, is not probative
of the allegations herein. Perry's alleged notice to Burrell occurred
on March 8, after the new watch schedule incorporating the change in
holiday staffing had already been posted. The only relevant
consideration herein concerns the "notice" given by supervisor Cornell
to unit representative Leo Zmijewski which, as discussed above, was
inadequate.
/14/ The Back Pay Act of 1966 was amended by the Civil Service Reform
Act of 1978 (5 U.S.C. 5596). Section 5596(b)(1)(A)(i) now provides:
(b)(1) An employee of an agency who, on the basis of a timely
appeal or an administrative determination (including a decision
relating to an unfair labor practice or a grievance) is found by
appropriate authority under applicable law, rule, regulation, or
collective bargaining agreement, to have been affected by an
unjustified or unwarranted personnel action which has resulted in
the withdrawal or reduction of all or part of the pay, allowances,
or differentials of the employee -
(A) is entitled, on correction of the personnel action, to
receive for the period for which the personnel action was in
effect -
(i) an amount equal to all or any part of the pay, allowances,
or differentials, as applicable which the employee normally would
have earned or received during the period if the personnel action
had not occurred, less any amounts earned by the employee through
other employment during that period; . . . .