[ v15 p100 ]
15:0100(21)CA
The decision of the Authority follows:
15 FLRA No. 21
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
LOS ANGELES, CALIFORNIA
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, LOCAL 503
Charging Party
Case No. 8-CA-20260
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices as alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge further found that the Respondent
had not engaged in certain other alleged unfair labor practices and, in
effect, recommended dismissal of the complaint with respect to them.
Thereafter, the Respondent, the General Counsel and the Charging Party
filed exceptions to the Judge's Decision.
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, only to the extent
consistent herewith.
The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Statute by failing to bargain over a change in watch
schedules for unit employees and by bypassing the exclusive
representative, the Professional Airways System Specialists, Local 503
(PASS) in dealing directly with unit employees. Citing Authority
precedent, the Judge found that a change in watch schedules is a matter
concerning which an agency is obligated to negotiate with an exclusive
representative, absent a clear and unmistakable waiver of bargaining
rights. In this case, the Judge found that the Respondent's obligation
to bargain over the change was limited to consultation rather than
negotiation by virtue of provisions contained in an expired collective
bargaining agreement negotiated by the Respondent and PASS' predecessor,
the Federal Aviation Science and Technological Association (FASTA) in
which FASTA had clearly and unmistakably waived its right to negotiate
over changes in the watch schedule. /1/ Relying on the Authority's
decision in U.S. Nuclear Regulatory Commission, 6 FLRA 18 (1981), the
Judge found that the Respondent and PASS were obligated to continue, to
the maximum extent possible, the provisions contained in the expired
FASTA agreement which limited the Respondent's obligation to one of
consultation over the change in the watch schedule. The Judge further
found, based on the record, that the Respondent had in fact fulfilled
its obligation to consult and concluded that the Respondent had not
violated section 7116(a)(1) and (5) of the Statute, as alleged in the
complaint.
With respect to the allegation of a bypass, however, the Judge found
that the Respondent had violated section 7116(a)(1) and (5) of the
Statute by dealing directly with unit employees concerning the
development of alternative watch schedules.
As noted above, the Judge relied upon the Authority's decision in
Nuclear Regulatory Commission in reaching the conclusion that the
Respondent and PASS were bound by the waiver provisions contained in the
expired FASTA agreement. In Nuclear Regulatory Commission, and the
decisions cited therein, the Authority determined that existing
personnel policies, practices and matters affecting working conditions
(i.e., negotiable conditions of employment) contained in a negotiated
agreement continue, to the maximum extent possible, upon the expiration
of that agreement, absent an express agreement to the contrary to unless
modified in a manner consistent with the Statute. The Authority
determined that such a result fosters stability in Federal
labor-management relations. Thereafter, in Federal Aviation
Administration, Northwest Mountain Region, Seattle, Washington and
Federal Aviation Administration, Washington, D.C., 14 FLRA No. 89
(1984), a case involving the Federal Aviation Administration, PASS and
the same expired FASTA agreement as is involved herein, the Authority
reaffirmed the principle enunciated in Nuclear Regulatory Commission
with respect to the maintenance of existing conditions of employment
established pursuant to the mutual obligation to negotiate over
"mandatory" subjects of bargaining. However, the Authority
distinguished such matters from those which relate to "permissive"
subjects of bargaining and concluded that where agency management has
elected to bargain over a matter covered under section 7106(b)(1) of the
Statute and the parties reach agreement thereon, either party retains
the right to unilaterally terminate such a provision upon the expiration
of the agreement. Similarly, the Authority concluded that where parties
have reached agreement on matters which are outside the required scope
of bargaining under the Statute, either party may elect not to be bound
by such provisions upon the agreement's expiration. In reaching this
result, the Authority noted 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
during the life of the parties' agreement while preserving each party's
right to terminate such matters upon the expiration of that agreement.
The Authority further noted that such a result is also consistent with
Congressional intent that in any subsequent negotiations, either party
may elect not to bargain over permissive subjects.
Applying the above principles in Federal Aviation Administration,
Northwest Mountain Region, the Authority determined that the waiver of
bargaining rights contained in Article 54, Section 2 of the expired
FASTA agreement, cited here at n. 1, supra, constituted a permissive
subject of bargaining which was binding during the life of the agreement
but was terminable by either party upon the expiration of the agreement.
Accordingly, the Authority concluded that when PASS indicated 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, management could no longer insist upon the continuation of
the waiver provision which contained a limitation on its bargaining
obligation. The same conclusion must be reached in this case, which
involves the identical provision of the expired FASTA agreement and the
identical assertion by PASS of its right to negotiate rather than
consult about the change in the watch schedule. Similarly, with respect
to the waiver of bargaining rights contained in Article 37 (supra, n.
1), which specifically refers to changes in the watch schedule, the
Authority concludes that such a waiver provision also constituted a
permissive subject of bargaining and, upon expiration of the agreement,
terminated when PASS indicated its intent to no longer be bound by the
provision which required only consultation but instead sought to
exercise its right to negotiate. Accordingly, the Respondent could not
then have insisted upon following the practices contained in these
expired agreement provisions so as to preclude bargaining over the
change in the watch schedule. In sum, the Authority finds that the
provisions contained in Article 54, Section 2 and Article 37 of the
expired FASTA agreement concerned permissive subjects of bargaining and
that the waiver of bargaining rights contained therein were no longer
binding on the parties once PASS indicated that it no longer wished to
be bound by such practices.
Having found that the waiver of bargaining rights contained in
Articles 54 and 37 of the expired FASTA agreement were no longer binding
on PASS and the Respondent, the Authority concludes that the Respondent
had a statutory obligation to provide prior notice to PASS and afford it
an opportunity to negotiate over the change in the watch schedule. /2/
See Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA
9 (1981) and U.S. Customs Service, Region V, New Orleans, Louisiana, 9
FLRA 116 (1982). The record reveals in this regard that the Respondent
refused to bargain with PASS, upon the latter's request, insisting
instead that its bargaining obligation was limited to consultation. The
Authority finds under these circumstances that the Respondent's refusal
to fulfill its duty to bargain constitutes a violation of section
7116(a)(1) and (5) of the Statute.
With respect to the allegation that the Respondent had bypassed the
exclusive representative, PASS, by dealing directly with unit employees,
the Authority adopts the Judge's conclusion that such conduct violated
section 7116(a)(1) and (5) of the Statute. The record reveals in this
connection that the watch schedule involved herein, consisting of
rotating shifts staffed by six employees on a continuous basis, was
disrupted by the resignation of one employee and therefore necessitated
action by the Respondent to ensure that all shifts in the watch schedule
would continue to be covered at all times. The record further indicates
that, instead of fulfilling its statutory duty to bargain with PASS, as
found above, and despite receiving specific notice from the president of
PASS that he was the authorized representative of PASS for such purpose,
the Respondent required unit employees to provide direct input
concerning the development of a new watch schedule and solicited their
assistance in establishing alternative schedules, one of which was
adopted and put into effect over the objections of PASS' president. The
Authority concludes that the Respondent's direct dealings with unit
employees concerning changes in their conditions of employment as set
forth above constituted an unlawful bypass of PASS, the employees'
exclusive representative, in violation of section 7116(a)(1) and (5) of
the Statute. In this connection, see Social Security Administration,
Baltimore, Maryland, 9 FLRA 909 (1982), wherein the Authority found that
management's conduct in meeting directly with unit employees concerning
the development of their performance standards while denying the
exclusive representative an opportunity to bargain about the manner in
which such employee participation would be provided constituted a
violation of section 7116(a)(1) and (5) of the Statute. /3/
To remedy the unfair labor practice conduct found herein, the General
Counsel and PASS requested rescission of the change in the watch
schedule and a return to the status quo ante. In the Authority's view,
such a remedy is not feasible where the preexisting watch schedule was
based on a staffing level of six employees, which level no longer
existed at the time that the Respondent found it necessary to alter the
watch schedule due to the resignation of one of the six employees.
Rather, the Authority finds that it will effectuate the purposes and
policies of the Statute to order that the Respondent, upon request, must
negotiate with PASS concerning changes in the unit employees' watch
schedule.
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 Department of Transportation, Federal Aviation Administration,
Los Angeles, California, shall:
1. Cease and desist from:
(a) Changing the watch schedule of unit employees without
affording the Professional Airways Systems Specialists, Local 503,
the employees' exclusive representative, an opportunity to
negotiate over such change.
(b) Bypassing the Professional Airways Systems Specialists,
Local 503, the exclusive representative of its employees, by
dealing directly with unit employees concerning personnel
policies, practices and matters affecting their working
conditions.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, negotiate with the Professional Airways
Systems Specialists, Local 503, concerning changes in the unit
employees' watch schedule.
(b) Post at its Los Angeles TRACON facility, copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Such forms shall be signed by the Los
Angeles Airway Facilities Sector Manager, 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VIII, 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., June 13, 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 watch schedule of unit employees without
affording the Professional Airways Systems Specialists, Local 503, the
exclusive representative of our employees, an opportunity to negotiate
over such change.
WE WILL NOT bypass the Professional Airways Systems Specialists,
Local 503, the exclusive representative of our employees, by dealing
directly with unit employees concerning personnel policies, practices
and matters affecting their working conditions.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, negotiate with the Professional Airways
Systems Specialists, Local 503, concerning changes in the unit
employees' watch schedule.
(Activity)
By: (Signature) (Title)
Dated: . . .
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 VIII, Federal Labor Relations Authority, whose address
is: 350 South Figueroa Street, 10th Floor, Los Angeles, California
90071 and whose telephone number is: (213) 688-3805.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Malachy T. Coghlan, Esq. and
Gary W. Baldwin, Esq., on the brief
For the Respondent
Woody N. Peterson, Esq. and
Joseph E. Kolick, Jr., Esq., on the brief
For the Charging Party
Deborah S. Wagner, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
et seq.
Upon an unfair labor practice charge filed by the Professional
Airways Systems Specialists, Local 503 (herein referred to as the Union)
against the Department of Transportation, Federal Aviation
Administration, Los Angeles, California (herein referred to as
Respondent), the General Counsel of the Authority, by the Regional
Director for Region VIII, issued a Complaint and Notice of Hearing on
July 29, 1982 alleging Respondent violated section 7116(a)(1) and (5) of
the Statute by unilaterally changing the work hours of certain unit
employees and bypassing the Union by conducting meetings with unit
employees outside the presence of any Union representative. /4/
A hearing on the Complaint was conducted on October 7, 1982 in Los
Angeles, California, at which time all parties were represented by
counsel and afforded full opportunity to adduce evidence, call, examine
and cross-examine witnesses and argue orally. Briefs were filed by all
parties and have been duly considered. /5/
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence I
make the following findings of fact and conclusions of law:
Background and Events
On December 31, 1981 the Professional Airways Systems Specialists
(PASS) was certified as the exclusive collective bargaining
representative for various of Respondent's employees including Automated
Radar Terminal Systems (ARTS) Electronic Technicians located at
Respondent's Los Angeles TRACON facility. Prior to PASS's certification
on December 31, 1981, the same employees were represented by the Federal
Aviation Science and Technological Association/National Association of
Government Employees (FASTA). While FASTA was the employees'
representative, it negotiated a collective bargaining agreement with
Respondent, effective 1977, which was still in effect when PASS
succeeded FASTA as the employees' representative.
Local 503 is a constituent of PASS. At least since the time PASS was
certified, and at all times material herein, Elton Sapp was President of
Local 503. As Local Union President Sapp alone was authorized to
negotiate with management on behalf of the Union with regard to local
labor-management relations at the Los Angeles TRACON facility. In
January 1982 Sapp notified Respondent that he had designated certain
individuals as "Unit Reps" (Unit Representatives) for various units
within the Los Angeles TRACON, naming himself and George Woo as Unit
Representatives for ARTS employees. Actually Sapp served as Unit
Representative and Woo served as Alternate Unit Representative in Sapp's
absence. As an Alternate Unit Representative Woo was not authorized to
negotiate on behalf of the Local or process employee grievances. While
it is not entirely clear from the evidence precisely what duties Woo had
when acting as a Unit Representative, it appears that his function was
limited to simply being available to discuss with employees any job
problems they might have if Sapp was not available. /6/ Woo was also
Secretary-Treasurer of the Local with responsibilities limited to
keeping minutes of meetings and fiscal bookkeeping.
The ARTS unit was composed of six employees called "watchstanders"
who covered a seven day, around-the-clock work schedule. In early March
1982 one of the six employees tendered his resignation. Apparently
Respondent decided not to replace the employee and a schedule had to be
designed to cover the workweek with five rather than six employees.
Accordingly, on March 15, 1982 Don Jefferis, ARTS unit supervisor,
posted a letter dated March 12 to ARTS unit employees in a Read and
Initial Binder concerning the decrease of watchstanders. /7/ The letter
stated, inter alia: "I require input (verbal or written) from each
technician regarding a new watch schedule." The letter further stated:
"This information is required immediately due to pending resignation of
a watchstander." Attached to the letter was a then current schedule that
Jefferis had modified for use until a new schedule became effective.
When the five remaining watchstanders became aware that the work
would now be performed by five rather than six employees, they attempted
to design a workable schedule. /8/ Four or five models were developed
and passed from shift to shift for comment by the watchstanders and
eventually reduced to two proposed schedules. The proposals were given
to Sapp who met with Jefferis on March 22 to discuss the matter. /9/
The meeting lasted approximately one-half hour during which time Sapp
presented Jefferis with one of the proposed schedules and informed him
that four of the five watchstanders expressed a willingness to work with
it. Jefferis reviewed the schedule and indicated his objection to the
presence of certain "short turnaround" aspects of the proposal.
Jefferis said he'd study the proposal and attempt to develop a different
schedule and present it to the crew to see if they liked it. Sapp
replied that Jefferis should bring any proposal to him for discussion
and he, in turn, would take it back to the crew, get their reaction and
report back to Jefferis. Jefferis indicated he'd reach a decision on
the matter as soon as possible and let Sapp know of his decision no
later than March 29.
Thereafter, Jefferis reviewed Sapp's proposed schedule and another of
his own which required four technicians to cover the shifts. On March
25, 1982 Jefferis went to the TRACON work area "to inform the people
that were available at that time what (his) next step was going to be."
Jefferis showed his four technician schedule to George Woo, informed him
that he was going to put the schedule into effect and asked Woo for his
comments. Woo indicated his objection to the proposal based upon the
manner in which weekend work was scheduled. While Jefferis was talking
to Woo, technician Al Davis came into the area and Jefferis also showed
him the proposed schedule. /10/
On March 28, 1982 Jefferis posted his four technician schedule noting
that the new watch schedule would be effective June 27, 1982. After
seeing the schedule, technician Stephen Herbst went to Jefferis and told
him that the schedule was a difficult one to work and he didn't like it.
Jefferis told Herbst to "come up with something else" if he could and
Herbst said he would try.
On March 30, 1982, Woo went to Jefferis' office and told Jefferis
that if the posted technician schedule was modified by adding a "second
week of days," the schedule would be substantially improved. /11/
Jefferis agreed and added that the modification would make it easier for
him to assign work. However, Jefferis indicated to Woo that he wouldn't
do anything about the schedule until other watchstanders had an
opportunity to see it.
Sapp had been absent from work on sick leave from March 23 through
March 29, 1982. By letter dated March 31 Sapp provided Jefferis, and
Jefferis' immediate supervisor, Wallace Ward, with the following letter:
"This letter is to inform you that it is necessary for us to
meet immediately to further negotiate the ARTS watch schedule.
The schedule filed in the read binder dated March 28, 1982 is not
one of the schedules that we discussed at our last meeting (March
22, 1982).
"If this schedule dated 3/28/82, is implemented it will be in
violation of the Federal Service Labor-Management Relations
Statute. (Specifically Chapter 71 of TITLE 5 of the U.S. Code, 1.
Section 7114(a)(1) and (2)(A). 2. Section 7116(a)(5)).
"As exclusive representative of PASS, I am the sole bargaining
agent in any matter affecting working conditions of personnel In
the arts unit. since no agreement to the proposed policy change
was made between us, the schedule dated 3/28/82 is unacceptable
and another meeting is necessary to resolve a bargaining
agreement.
Please notify me in writing by April 2, 1982 as to your
intentions."
On April 1, 1982 Jefferis and James Lougheed, Assistant Sector
Manager of the Los Angeles Airway Facilities Sector, went to Sapp's work
station to discuss the watch schedule as modified by Woo's suggestion.
Lougheed said he was under the impression that the Woo schedule was
acceptable to everyone and asked why it could not be adopted. Sapp
replied he didn't know for a fact that the Woo schedule was acceptable
to everyone since he hadn't had an opportunity to talk to the entire
crew about the matter. Sapp indicated that if the crew agreed to the
schedule, even if he personally didn't, then the Woo schedule could be
implemented. Sapp told Lougheed that he would talk to the crew and get
back to him on April 4, which arrangement was acceptable to Lougheed.
On April 5, 1982 Sapp wrote and delivered a letter to Lougheed's
office concerning the watch schedule situation. /12/ In the letter Sapp
inter alia, rejected the Woo schedule, indicating that he had concluded
his discussions with the crew and four of the five employees preferred a
schedule which had all employees working 5 days followed by 2 days off,
in order to avoid hardship to employees and their families. /13/ Sapp
further stated that he had not yet received a reply to his March 31
letter, supra, and indicated he wished to be notified by April 12 as to
Lougheed's "intentions."
On April 6, 1982 Jefferis and Sapp had another meeting regarding the
watch schedule. /14/ Jefferis informed Sapp that he felt he had fully
consulted on the watch schedule issue and would not negotiate on the
matter with the Union. Sapp replied that management's obligation was to
negotiate with the Union and not merely consult. Jefferis replied that
he received word from his supervisor, Ward, that the only requirement
Respondent had with PASS was the requirement under the "old" FASTA
contract, to consult. Sapp stated he still didn't have a reply from his
March 31 letter, supra, and Jefferis responded it wasn't necessary for
him to reply and, if he did, he'd do so "when he was damn good and
ready." Jefferis then terminated the meeting.
On April 8, 1982 Jefferis posted the Woo schedule in the Read and
Initial Binder. An accompanying letter informed employees that after he
posted the March 28 watch schedule, Jefferis received a suggestion from
Woo, "ARTS Unit Union Rep.", relating to the scheduling of watches which
was reflected in the new schedule. The letter indicated that the new
schedule would be effective July 11, 1982.
On April 13, 1982 Lougheed met with Sapp and attempted to assure him
that Jefferis had considered all alternatives for the watch schedule.
Lougheed asked Sapp what "hardships" Sapp was referring to in his March
31 letter, supra, and Sapp replied that he and another employee would
have hardships brought on by the watch schedule. Thereafter, by letter
dated April 20, 1982, Jefferis informed Sapp, inter alia, that the
schedule Sapp submitted on March 22 was "carefully considered" but
rejected, citing the reasons therefore. The letter also noted that the
schedule posted on April 8 "was adopted from information supplied by
Woo, "ARTS Unit Union Rep.".
On April 28, 1982 the Union filed the present unfair labor practice
charge.
Relevant Contract Provisions
Since September 1982 Respondent and the Union have been engaging in
negotiations for a national agreement. However, during the period
relevant hereto at the Los Angeles TRACON, the parties were "working
with" or "working under" the 1977 FAA/FASTA agreement, supra. /15/
Article 54 of that agreement provides:
"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."
Regarding watch schedules and shift assignments, Article 37 of the
agreement provides, in relevant part:
"Section 1. The basic watch schedule is concerned only with
regular, recurring shift or work assignments and is defined as the
days of the week, hours of the day, rotation of shifts, and change
in regular days off. Assignments of individual employees to the
watch schedule are not considered as changes to the basic watch
schedule. The basic watch schedule will not be changed without
prior consultation with the Union. In developing the basic watch
schedule, the sector manager/sector field office chief or their
designee shall meet with the Union representative and carefully
consider his/her views and recommendations concerning the
schedule. The objective of this meeting or meetings shall be to
carefully and thoroughly examine the alternatives and options
available as suggested by the Union representative."
Positions of the Parties
Counsel for the General Counsel and the Union essentially allege that
Respondent violated the Statute by failing to negotiate in good faith
with the Union and bypassing the Union by dealing directly with
employees on the watch schedule change. Respondent denies it was
obligated to negotiate with the Union over the change and maintains its
obligation to the Union was only to consult on the matter. Respondent
contends that, in any event, its dealings with Union Representative Sapp
and Alternate Unit Representative Woo constituted negotiation on the
change and further contends that the evidence is insufficient to
establish a bypass.
Discussion
Clearly a change in work schedules is a matter over which an agency
is obligated to negotiate with the collective bargaining representative,
absent a clear and unmistakable waiver of bargaining rights. U.S.
Customs Service, Region V, New Orleans, Louisiana, 9 FLRA 116 (1982);
Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No.
2 (1981); and National Treasury Employees Union, Chapter 66 and
Internal Revenue Service Kansas, City Service Center, 1 FLRA 927 (1979).
Respondent contends that such a waiver can be found in the FAA/FASTA
agreement, supra, and urges that the Union is bound by the waiver.
Counsel for the General Counsel and the Union contend that any waiver of
statutory bargaining rights found in the FASTA agreement should not be
held to bind PASS, the successor union to FASTA.
In my view this issue is controlled by the Authority's decision in
U.S. Nuclear Regulatory Commission, 6 FLRA 18 (1981). In that case the
American Federation of Government Employees (AFGE) represented various
of the agency's employees and a negotiated agreement gave AFGE the right
to use bulletin boards, except for posting material which reflected
"adversely on individuals, organizations or activities of the Federal
Government." The National Treasury Employees Union (NTEU) replaced AFGE
as the certified collective bargaining agent and thereafter the
agreement between AFGE and the agency terminated. Subsequently, the
agency removed from bulletin boards material posted by NTEU, citing the
restrictions noted above contained in the negotiated agreement between
AFGE and the agency pertaining to adverse material. NTEU filed an
unfair labor practice charge and the General Counsel issued a complaint
contending the agency's actions unilaterally changed existing conditions
of employment and a past practice. The Authority held:
" . . . 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 to 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 had 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."
In the case herein FASTA, by executing Articles 54 and 37 in their
agreement with Respondent, clearly and unmistakably waived its right to
negotiate on changes in the watch schedule and opted to be consulted
instead. The testimony of Herbert Beard who participated on behalf of
Respondent in the negotiations giving rise to the FASTA agreement
strongly supports this conclusion. Thus, Beard testified that during
negotiations, FASTA consciously accepted consultation in place of its
right to negotiate schedule changes in order to obtain an immediate
agreement for dues withholding.
I further conclude that, under the Authority's holding in Nuclear
Regulatory Commission, supra, PASS and Respondent were obligated to
continue "to the maximum extent possible" those practices which flowed
from Articles 54 and 37 of the agreement which, like the clause relating
to bulletin boards in Nuclear Regulatory Commission, created a binding
condition of employment. Indeed Sapp and Jefferis both acknowledged
that employment practices were governed by the FASTA agreement.
Counsel for the General Counsel and counsel for the Union seek to
distinguish Nuclear Regulatory Commission from the case herein by
attempting to limit the application of Nuclear Regulatory Commission to
contract provisions which establish or define personnel policies,
practices and terms and conditions of employment while excluding any
waiver of a statutory right or matter concerned solely with the
statutory relationships between the parties.
I see nothing in Nuclear Regulatory Commission which suggests such a
distinction. Indeed, the language used by the Authority in that case
points to a contrary conclusion. Thus, as cited above, the Authority
found in a similar situation that continuing the policies, practices and
matters concerning working conditions "to the maximum extent possible"
fosters stability in labor management relations. Such language is quite
broad and I discern nothing therein which would indicate the principle
would not be applicable when the issue is one of honoring a waiver of a
union's right to negotiate in a specific situation, noting particularly
that the predecessor union received a checkoff clause in return
therefore. While, as counsel for the Union points out, this approach
may well be different from that followed under the National Labor
Relations Act, there 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. Accordingly, I
conclude that Respondent's obligation herein was limited to consultation
with the Union regarding the change in the ARTS work schedule.
Although neither the General Counsel nor the Union has argued that
Respondent in fact did not consult with the Union on the matter, I
nevertheless conclude, based upon the evidence herein, that Respondent
fulfilled its obligation to consult with the Union concerning the change
in the watch schedule. /16/ Thus, Respondent met with Sapp on March 22,
1982, received the Union's proposal, discussed it and gave Sapp its
reasons why it found the Union's proposal unacceptable. Thereafter,
Respondent was available to Sapp for further discussion at all times
prior to deciding what schedule to adopt and indeed, sought him out on
two occasions to discuss the matter. In my view Respondent thus
satisfied its contractual obligation to consult with the Union on the
change. Sapp's insistence on procedures more consonant with
negotiations then consultations could not expand Respondent's obligation
under the contract.
However, while Respondent may have been obligated only to consult and
not negotiate with the Union on the change, this did not obviate
Respondent's obligation under the Statute to deal only with the Union on
the matter and not bypass the Union and deal directly with unit
employees. The contract did not grant any such privilege to Respondent
/17/ and no clear and unmistakable waiver of the Union's right not to be
bypassed was otherwise evident from the evidence presented. /18/ The
Union may have been bound by a waiver of its right to negotiate on
schedule changes, but that waiver should be narrowly construed and not
operate to permit an otherwise prohibited act which tends to deprecate
the Union and erode whatever strength of persuasion it retained through
its right of consultation. This is especially true where, as herein,
the Union was seeking to utilize (indeed maximize) whatever rights it
had to deal with the employer. PASS would have had the right to
negotiate on the schedule change but for the existence of the
contractual waiver noted above. However, neither PASS nor FASTA waived
the right to be the only representative of the employees which are
prescribed by the Statute. I conclude such direct dealings undermined
and impaired the Union's status as exclusive representative. See
Department of Health, Education and Welfare, Social Security
Administration, 1 FLRA 508 (1979) and Iowa National Guard and National
Guard Bureau, 8 FLRA 500 (1982). As stated by the Federal Labor
Relations Council in Department of the Navy, Naval Air Station, Fallon,
Nevada, 3 FLRC 698 at 700 (1975):
" . . . when a labor organization has been selected as the
exclusive representative of employees in an appropriate unit,
agency management must deal with it only, to the exclusion of
other labor organizations and without engaging in direct
negotiations with unit employees over matters within the scope of
the collective bargaining relationship. To permit otherwise would
allow agency management to avoid the responsibility owed to the
exclusive representative to treat it as the only formal
representative who speaks for all unit employees."
Thus, I conclude that while Respondent was not obligated to negotiate
with the Union on the watch schedule change, this did not privilege
Respondent to deal directly with unit employees (or with other labor
organizations) on the change, a matter "within the scope of the
collective bargaining relationship."
Notwithstanding such absence of any right to deal directly with
employees on the watch schedule change, Jefferis: solicited comments
from ARTS unit employees by posting the letter in the Read and Initial
Binder on March 15, 1982; showed his proposed schedule to watchstander
Woo and solicited his comments; also showed his proposal to
watchstander Davis at that same time; asked watchstander Herbst, while
discussing a schedule on March 28, to "come up with something else" if
he could; on March 30 discussed with Woo a modification Woo suggested,
indicating that comments on the schedule by other watchstanders would
also be considered; and ultimately adopted a large measure of Woo's
proposal. /19/ In these circumstances I conclude that Jefferis'
contacts with unit employees as stated above constituted a bypass of the
Union in violation of section 7116(a)(1) and (5) of the Statute.
Respondent contends that when dealing with Woo, Jefferis was dealing
with the Union since Woo was the Alternate Unit Representative for the
ARTS unit and Sapp was absent from work at that time. I find and
conclude that Woo was not acting on behalf of the Union when discussing
the watch schedule change with Jefferis. I do not credit Jefferis'
testimony that he believed he was dealing with the Union when discussing
the schedule change with Woo. Rather, I find that Jefferis considered
Woo only as an interested watchstander. It is clear from the evidence
that Woo was not authorized to negotiate with Respondent on behalf of
the Union and Respondent was never informed that Woo had any such
authority. During his first meeting with the Union on this matter on
March 22, 1982, Jefferis was informed by Sapp that proposals should be
brought to Sapp for discussion and Sapp would contact the ARTS crew.
Although Sapp was on sick leave from March 23 through March 29 there is
no evidence or claim of any overriding exigency which would justify
Respondent dealing with other than the designated Union representative
about the matter. /20/ Further, Jefferis acknowledged in his testimony
that when he went to the TRACON work area on March 25 and talked to Woo
and Davis, he went "to inform the people that were available at that
time what (his) next step was going to be." Clearly Jefferis was not
seeking out Woo as a Union representative but rather expected to discuss
the matter with any watchstander on duty. Indeed, Jefferis' own
testimony regarding his meeting with Woo on March 30 indicates he was
aware that Woo was presenting "his" plan and not the Union's.
Having found that Respondent has engaged in conduct prohibited by
section 7116(a)(1) and (5) of the Statute, I recommend that the
Authority issue the following:
ORDER
Pursuant to section 2430.20 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Authority hereby orders that the Department of Transportation, Federal
Aviation Administration, Los Angeles, California, shall:
1. Cease and desist from:
(a) Bypassing the Professional Airways System Specialists, the
exclusive representative of its employees, and dealing directly
with unit employees concerning personnel policies and practices
and matters affecting working conditions relative to changing
watch schedules.
(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) Post at Los Angeles TRACON facility, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by
the Airway Facilities Sector Manager 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 Sector
Manager shall take reasonable steps to insure that such Notices
are not altered, defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify that Regional Director, Region VIII, Federal
Labor Relations Authority, 350 South Figueroa Street, 10th Floor,
Los Angeles, California 90071, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: March 11, 1983
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 bypass the Professional Airways Systems Specialists, the
exclusive representative of our employees, and deal directly with unit
employees concerning personnel policies and practices and matters
affecting working conditions relative to changing watch schedules.
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.
(Agency or Activity)
BY: (Signature)
DATED: . . .
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, Region VIII, Federal Labor Relations Authority, 350
South Figueroa Street, 10th Floor, Los Angeles, California 90071, and
whose telephone number is: (213) 688-3805.
--------------- FOOTNOTES$ ---------------
/1/ The relevant contract provisions provide 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.
ARTICLE 37 - WATCH SCHEDULES AND SHIFT ASSIGNMENTS
Section 1. The basic watch schedule is concerned only with
regular, recurring shift or work assignments and is defined as the
days of the week, hours of the day, rotation of shifts, and change
in regular days off. Assignments of individual employees to the
watch schedule are not considered as changes to the basic watch
schedule. The basic watch schedule will not be changed without
prior consultation with the Union. In developing the basic watch
schedule, the sector manager/sector field office chief or their
designee shall meet with the Union representative and carefully
consider his/her views and recommendations concerning the
schedule. The objective of this meeting or meetings shall be to
carefully and thoroughly examine the alternatives and options
available as suggested by the Union representative.
/2/ The record indicates in this connection that the Respondent was
placed in the position of having to effect a change in the existing
watch schedule when the number of employees previously manning the
schedule was reduced by the resignation of one employee.
/3/ Compare U.S. Department of the Air Force, 47th Air Base Group
(ATC), Laughlin Air Force Base, Texas, 4 FLRA 469 (1980), wherein the
Authority adopted the Judge's conclusion that management's discussions
with unit employees did not constitute an unlawful bypass of the
exclusive representative because the conversations were conducted solely
to disseminate and gather necessary personal information and did not
concern conditions of employment affecting employees in the unit
generally; management did not solicit or entertain proposals from unit
employees; management did not attempt to negotiate or deal directly
with unit employees in order to obtain their agreement with management's
position; and management did not attempt thereby to put pressure on the
union to take a certain course of action. Compare also Kaiserslautern
American High School, Department of Defense Dependents Schools, Germany
North Region, 9 FLRA No. 184 (1982), wherein the Authority found
thatmanagement's polling of employees for the purpose of gathering
information to support its application for school accreditation by an
independent accrediting agency did not constitute unlawful direct
dealings with employees over matters affecting their conditions of
employment.
/4/ The allegations appear as amended at the hearing.
/5/ Counsel for the General Counsel's unopposed motion to correct the
transcript is hereby granted.
/6/ Sapp testified that a Unit Representative was "someone . . . that
other employees could go to and speak about problems that might arise."
Woo testified that in Sapp's absence he "would handle any problems that
might come up with people in our Unit."
/7/ Posting notices on the Read and Initial Binder was the primary
means of communication between Jefferis and watchstanders who are
required to check the binder at the beginning of each watch and initial
each new notice to indicate it had been read.
/8/ It is not clear whether this attempt was directly the result of
Jefferis' letter in the Read and Initial Binder or the remaining
watchstanders began their attempt before Jefferis' notice was posted.
/9/ The following is a composite of the credited portions of Sapp's
and Jefferis' testimony.
/10/ This version of the March 25 incident is a composite of the
credited testimony of Jefferis and Woo.
/11/ Jefferis' testimony on this meeting characterizes Woo's
modification in terms of "he . . . had a plan" and "his plan."
/12/ Sometime between April 1 and April 5, Lougheed approached Sapp
toward the conclusion of Sapp's shift and attempted to discuss
scheduling but Sapp refused, indicating he was "too tired" to do so at
that time.
/13/ Such a schedule is similar to the one Sapp proposed to Jefferis
on March 22, supra.
/14/ I credit Sapp's version of this meeting in that it was more
complete, less conclusionary in expression and was more in accord with
the other facts of this case. However, Sapp's testimony is also less
than a model of clarity in various respects.
/15/ Sapp testified the parties were "working with" the agreement and
Jefferis testified they were "working under" the agreement.
/16/ See Article 37 of the collective bargaining agreement, supra,
which defines "consultation."
/17/ Article 37 of the FASTA agreement indicates that alternatives
and options suggested by the Union would be examined.
/18/ The record contains some testimony which could be interpreted to
support the existence of a past practice whereby Respondent had
previously sought out employees' opinions when watch schedules were to
be changed in the past. However, in order to establish a past practice
the evidence must show that the practice was consistently exercised for
an extended period of time and the parties were aware that such a
practice was being followed. Internal Revenue Service and Brookhaven
Service Center, 6 FLRA 713 (1981). In the case herein the testimony
adduced in this regard was essentially conclusionary in nature and no
testimony was adduced which indicated the collective bargaining agent
was aware that employee opinions or suggestions were sought in the past.
I further note that Respondent made no contention in its amendment to
the complaint, arguments at the hearing, or in its brief that such a
past practice existed.
/19/ Indeed, counsel for Respondent relies, in part, on the contacts
between Jefferis and Woo to support its contention that Respondent, in
fact, negotiated with the Union over the watch schedule change even
though it was only obligated to consult.
/20/ The schedule finally adopted was not posted until April 8, to
become effective July 11, 1982.