[ v17 p142 ]
17:0142(26)CA
The decision of the Authority follows:
17 FLRA No. 26
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
Charging Party
Case No. 9-CA-30480
DECISION AND ORDER
The Administrative Law Judge issued her Decision in the above
entitled proceeding, finding that the Respondent had engaged in certain
unfair labor practices alleged in the complaint, and recommending that
it be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the Respondent filed exceptions to the Judge's
Decision and the General Counsel filed an opposition to the Respondent's
exceptions. /1/
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.
/2/
The Judge found that the Respondent violated section 7116(a)(1) and
(5) of the Statute by refusing to bargain over the impact and
implementation of a reorganization involving the Respondent's Northwest
Mountain Region. The Judge also found that the Respondent's failure to
notify the Charging Party's designated representative for purposes of
bargaining over the reorganization constituted a further violation of
section 7116(a)(1) and (5). To remedy these unfair labor practices, the
Judge recommended a status quo ante remedy and a nationwide posting of
the remedial unfair labor practice notice.
In agreement with the Judge, but for the following reasons, the
Authority finds that the Respondent's refusal to bargain over the impact
and implementation of the reorganization constituted a violation of
section 7116(a)(1) and (5) of the Statute.
Subsequent to the Judge's Decision in this case, the Authority issued
its decision in Federal Aviation Administration, Northwest Mountain
Region, Seattle, Washington, 14 FLRA 644 (1984). That case involved the
same Respondent, Federal Aviation Administration (FAA), the same union
as Charging Party, Professional Airways Systems Specialists (PASS), and
an identical assertion by the agency that provisions in an expired
agreement negotiated by the union's predecessor constituted a waiver of
the union's right to bargain over various changes in unit employees'
conditions of employment. In that case the Authority determined, in
part, that following the expiration of an agreement, either party may
terminate matters contained in the agreement relating to permissive
subjects of bargaining. Since the provisions in the expired agreement
waiving certain bargaining rights were permissive in nature and the
union indicated that it no longer wished to be bound by such provision,
the Authority found that the agency could not insist upon the
continuation of the waiver provisions and deny the union its statutory
right to bargain.
In the instant case, and as more fully explained in the Judge's
Decision, the Respondent sought to limit the Charging Party's right to
negotiate over the impact and implementation of a reorganization to one
of consultation by virtue of waiver provisions contained in the expired
agreement. Upon learning of the reorganization, the Charging Party's
President, who previously had informed the Respondent that he was the
only authorized representative to bargain over reorganizations, made
numerous requests to bargain. In the Authority's view, and based upon
the reasons more fully set forth in Federal Aviation Administration,
Northwest Mountain Region, supra, once the Charging Party indicated that
it wished to negotiate over the impact and implementation of the
reorganization and not merely to consult, the Respondent was no longer
free to insist upon a continuation of the provisions in the expired
agreement which limited the bargaining obligation to consultation. By
refusing to bargain with the Charging Party, upon the latter's request,
the Authority finds, in agreement with the Judge, that the Respondent
violated section 7116(a)(1) and (5) of the Statute. /3/
In further agreement with the Judge, the Authority finds that the
Respondent's failure to notify the duly authorized bargaining
representative of the Charging Party for the purpose of bargaining over
the impact and implementation of the reorganization constituted a
violation of section 7116(a)(1) and (5). See Department of
Transportation, Federal Aviation Administration, San Diego, California,
15 FLRA No. 86 (1984), and cases cited therein.
However, while the Authority adopts the Judge's conclusions with
respect to the unfair labor practice findings, the Authority finds that
the recommended status quo ante remedy and the nationwide posting of a
remedial notice are not warranted in the circumstances of this case.
First, with respect to the status quo ante remedy, the Judge
recommended that the Respondent be ordered to rescind implementation of
the reorganization involved herein, and restore all conditions of
employment affecting unit employees which were in effect prior to the
reorganization, "including offering to relocated and former employees
the option of returning as employees to their former duty stations." In
reaching this result, the Judge looked to Federal Correctional
Institution, 8 FLRA 604 (1982), to find that the Respondent did not
properly notify the Charging Party's designated bargaining
representative; that the Charging Party made repeated requests to
bargain; that the Respondent willfully refused to bargain; that the
impact of the reorganization on unit employees was severe; and that a
return to the status quo ante would not create an excessive degree of
disruption in the Northwest Mountain Region. The Authority does not
agree with the Judge's assessment of the degree of disruption which
would be created by a status quo ante remedy. In this connection, the
record reveals that the reorganization is part of an overall plan of the
FAA to create larger sector organizations and reduce smaller sector
elements in an effort to consolidate existing work centers and more
efficiently utilize the work force. The Respondent sought to do this by
reducing the number of sector headquarters from eleven to five and by
closing various field offices within those sector headquarters. The
Respondent then proceeded to reassign employees to accord with the new
sector configuration. The record indicates that some bargaining unit
employees transferred to new locations, that others resigned rather than
relocate, and that still other employees retired from Federal employment
altogether. /4/
The effect of the Judge's recommended remedy would be to reestablish
offices which were scheduled to be closed; relocate employees, at their
option, to their former posts of duty; and offer reemployment to
employees who resigned or retired and provide them the option of also
returning to their former posts of duty, all until such time as the
parties bargained concerning the impact and implementation of the
reorganization. In the Authority's view, this would seriously disrupt
the accomplishment of the Respondent's mission and the efficiency of its
operations. As previously noted, the stated purpose of the overall
sector reorganization was to more fully utilize existing resources. To
accomplish this, the Respondent consolidated various organizational
elements and eliminated others. An order which would now require the
Respondent to reestablish organizational components and to rehire and
relocate employees would seriously impair the Respondent's ability to
efficiently utilize its resources and effectively maintain its
operation. The Judge even recognized that the proposed remedy might
create an imbalance in the workload but suggested that the Respondent
could draw upon other personnel to fill in any resultant gaps. The
Judge further surmised that in any event few employees would exercise
their option to relocate for what might be only a temporary period of
time pending negotiations. In the Authority's view, this suggestion
would create even more inefficiency by retaining personnel where the
Respondent has determined they are no longer needed and by taking
personnel away from those locations where the Respondent has determined
they are needed to perform the work of the agency.
The Authority is not unmindful of the serious consequences which flow
to unit employees as the result of an agency reorganization, such as
involved herein. In such a situation, a goal of collective bargaining
should be to mitigate the adverse effects and disruption which are
incurred by the affected employees. In the Authority's view, an order
which would require the Respondent to give priority consideration to
transferred unit employees for existing or future vacancies, for which
they are qualified, in the Northwest Mountain Region, and which would
require the Respondent to bargain with the Charging Party to the extent
consonant with law and regulation concerning the impact and
implementation of the reorganization would effectuate the purposes and
policies of the Statute. /5/ With respect to the bargaining order, the
Authority notes particularly that the reorganization has not been fully
implemented and that certain employees who were scheduled to be
transferred were still at their duty stations and had not been relocated
as of the date of the hearing in this matter.
As to the posting of a remedial unfair labor practice notice, the
Authority finds that a posting in the Northwest Mountain Region, where
the instant violations have occurred, will best effectuate the purposes
and policies of the Statute. Thus, consistent with the Authority's
findings in similar situations involving FAA's unlawful insistence on a
waiver of the Charging Party's statutory rights, the posting of a
remedial notice at the locations where such unlawful conduct has
occurred is warranted. See Federal Aviation Administration, Northwest
Mountain Region, supra; Federal Aviation Administration, San Diego,
California, supra; and Department of Transportation, Federal Aviation
Administration, Los Angeles, California, 15 FLRA No. 21 (1984). The
Authority notes, moreover, that the unlawful conduct in the instant case
occurred prior to the issuance of the Authority's decision in Federal
Aviation Administration, Northwest Mountain Region. As there is no
indication that the FAA has refused to abide by the Authority's decision
in that case or in the other cited cases, or that it will continue to
engage in such unlawful conduct in the future, the Authority finds no
basis on which to order a different posting requirement than that
ordered herein.
ORDER
Pursuant to section 2423.29 of the 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, Washington, D.C., shall:
1. Cease and desist from:
(a) Any further implementation of the sector reorganization in the
Northwest Mountain Region without first notifying the Professional
Airways Systems Specialists, the exclusive representative of its
employees, and affording it an opportunity to negotiate on the
procedures to be observed in any further implementation of the
reorganization and on appropriate arrangements for employees who have
been or may be affected by the reorganization.
(b) Failing to give notice of any planned reorganization to the
designated representative of the Professional Airways Systems
Specialists, the exclusive representative of its employees, for the
purpose of bargaining to the extent consonant with law and regulation.
(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) Give priority consideration to transferred unit employees for
existing and future vacancies, for which they are qualified, in the
Northwest Mountain Region.
(b) Upon request by the Professional Airways Systems Specialists, the
exclusive representative of its employees, and to the extent consonant
with law and regulation, bargain over the procedures to be observed in
implementing the sector reorganization in the Northwest Mountain Region,
and on appropriate arrangements for employees who have been or may be
affected by the reorganization.
(c) Post at its facilities in the Northwest Mountain Region, 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., March 11, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT further implement the sector reorganization in the Northwest
Mountain Region without first notifying the Professional Airways Systems
Specialists, the exclusive representative of our employees, and
affording it an opportunity to negotiate on the procedures to be
observed in any further implementation of the reorganization and on
appropriate arrangements for employees who have been or may be affected
by the reorganization. WE WILL NOT fail to give notice of any planned
reorganization to the designated representative of the Professional
Airways Systems Specialists, the exclusive representative of our
employees, for the purpose of bargaining to the extent consonant with
law and regulation. 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 give priority consideration to transferred unit employees for
existing and future vacancies, for which they are qualified, in the
Northwest Mountain Region. WE WILL, upon request by the Professional
Airways Systems Specialists, the exclusive representative of our
employees, and to the extent consonant with law and regulation, bargain
over the procedures to be observed in implementing the sector
reorganization in the Northwest Mountain Region, and on appropriate
arrangements for employees who have or may be affected by the
reorganization.
. . . (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 No.: 9-CA-30480
John J. Callahan,
Counsel for Respondent
Joseph E. Kolick, Jr.
Counsel for Charging Party
Stefanie Arthur,
Counsel for the General Counsel
Federal Labor Relations Authority
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454. 92 Stat. 1192, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the "Statute," and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
On July 14, 1983, Counsel for the Charging Party (also referred to
herein as the "Union" or "PASS") filed an unfair labor practice charge
alleging violations of Sections 7116(a)(1) and (5) of the Statute.
The General Counsel of the Federal Labor Relations Authority
("Authority") investigated the charge and, on October 12, 1983, filed
the complaint initiating this proceeding. The complaint alleges that
Respondent, "(o)n or about April 22, 1983, decided to reorganize the
National Airspace System (NAS) Airway Facilities Sectors in Respondent's
Northwest Mountain Region by, inter alia, reducing the number of Sector
Headquarters within said Region from eleven to five," without notice to
the Union's designated representative, Howard Johannssen; that
implementation of the reorganization began on or about May 2, 1982; and
that since at least April 22, 1983, and continuing to date, Respondent
has failed and refused to negotiate with the Union, after several
requests, concerning the impact and implementation of the
reorganization. By such acts, the complaint alleges that Respondent has
engaged, and is engaging in unfair labor practices, in violation of
Sections 7116(a)(1) and (5) of the Statute. /6/ See paragraphs 7
through 10 of the complaint, which is in evidence as General Counsel's
Exhibit 1(d).
Respondent admits that it commenced implementation of the
reorganization, on or about May 2, 1983, and alleges that, consistent
with the Authority's ruling in U.S. Nuclear Regulatory Commission
("NRC"), 6 FLRA No. 9, 6 FLRA 18 (1981), it notified the union
representatives designated in "the controlling labor agreement," and
requested their "comments", which were not received. See paragraphs 6,
7d and 9 of Respondent's answer, which is General Counsel's Exhibit
1(e). Respondent also admits receiving a request to bargain from the
Union's president, but alleges that, under "the controlling labor
agreement," it was only required to consult. See paragraph 8b of
Respondent's answer. The "controlling labor agreement" to which
Respondent refers is a 1977 one entered into with a predecessor union,
Federal Aviation Science and Technological Association ("FASTA").
A hearing was held on the matter in Seattle, Washington, on December
6 and 7, 1983. The parties appeared, introduced exhibits, and examined
witnesses. Briefs were received from Respondent, on January 4, 1984,
and from the General Counsel and the Charging Party, on January 5.
Based upon the record made in this proceeding, my observation of the
demeanor of the witnesses, and the briefs, I enter the following
findings of fact and conclusions of law, and recommend the entry of the
following order.
Findings of Fact /7/
1. At all times material herein, Respondent has been, and is, an
agency within the meaning of Section 7103(a)(3) of the Statute.
2. At all times material herein, the Union has been, and is, a labor
organization within the meaning of Section 7103(a)(4) of the Statute.
3. Since December 31, 1981, the "PASS" has been certified as the
exclusive representative of an appropriate nationwide consolidated unit
of employees of Respondent including, inter alia, field maintenance
employees employed in Respondent's Northwest Mountain Region, Airway
Facilities Division. This certification followed an election,
supervised by the Authority, in which PASS defeated the incumbent union,
FASTA. See TR 56-57.
4. Prior to December 31, 1981, PASS had been certified in smaller
units of Respondent, going back to 1977. Since February 1977, Howard E.
Johannssen has been President of PASS.
5. The Director of Respondent's Northwest Mountain Region ("NW
Region") is Charles Foster. The NW Region covers the seven northwestern
states within the continental United States. There are six operating
program divisions within the NW Region: airway facilities, which is the
division involved in this action and will be referred to herein as the
"AF Division"; aircraft certification; flight standards; air traffic;
airports; and air civil aviation security.
6. Since August 22, 1982, Frederick M. Issac has been Manager of
Respondent's AF Division in the NW Region, and in such capacity has been
a supervisor and/or management official within the meaning of Section
7103(a)(10) and/or (11) of the Statute, and an agent of Respondent.
7. A primary function of an AF Division is to maintain equipment.
In the NW Region there are now five "AF Sector Headquarters" which
report to the AF Division (R 10). Each "Sector Headquarters" covers a
specific geographic area, and has "Sector Field Office(s)" and "Unit(s)"
reporting to it (R 10). The maintenance work is done in the Sector
Field Offices. An AF Division Manager has full responsibility over all
employees in the division.
8. Respondent has a National Airspace System Plan ("NASP") dated
December 1981 which incorporates "the Airway Facilities 80's Maintenance
Program" ("80's Program"). See page 5 of GC 11. Among other things,
the 80's Program calls for "consolidation of existing work centers and
more efficient utilization of the work force" (ibid). This maintenance
program is in accordance with FAA Order 1100.127B, which "provides for
sector configurations and organizations commensurate with the need for
larger sector organizations and a corresponding reduction of subelements
such as sector field offices, sector field units, and sector field
office units" (underlining in original) (GC 16, para 5d, page 2).
9a. On January 8, 1982, soon after certification, the President of
PASS, Mr. Johannssen wrote to the Administrator of the Federal Aviation
Administration ("FAA") as follows:
As you know on December 31, 1981, the Professional Airways
Systems Specialists (PASS) was officially certified as the
exclusive bargaining representative for the nationwide unit of
systems specialists. As such, PASS has the right to bargain
collectively with the FAA with respect to the conditions of
employment of all employees in the unit, and the FAA has the duty
to refrain from implementing any changes in conditions of
employment with unit members prior to conclusion of good faith
bargaining. We look forward to the early commencement and speedy
conclusion of a comprehensive collective bargaining agreement. In
the interim, however, 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.
In this regard, PASS is aware that the FAA, in the near future,
plans to publish its "80's Maintenance Program." PASS expects to
receive a copy of this document and further expects to receive
specific notice of any changes affecting conditions of employment
proposed thereby. PASS also demands that the FAA refrain from
implementing any such changes themselves or impact and
implementation procedures as may be appropriate.
In conclusion, I wish to state that I am looking forward to
fruitful and harmonious labor relations between PASS and FAA.
Let's be certain to get off on the right foot.
See GC 2.
b. FAA responded on January 21 to PASS's January 8 letter. Its
Director of Labor Relations, E. V. Curran wrote as follows:
This acknowledges your January 8 letter to the Administrator in
which you describe the PASS certification and state among other
things that "In the interim, however, PASS will demand strict
compliance by the FAA with its obligation to bargain collectively
and to refrain from unilateral changes."
The Federal Aviation Administration 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. I hope your organization is not
dedicated to the confrontational tactics that proved so
destructive to that organization and its members.
Let me assure you that the FAA is fully committed to
recognizing the legitimate interests of all duly certified labor
unions within the law but will not be receptive to rhetoric such
as your January 8 letter.
See GC 3.
10a. On January 14, 1982, a PASS Regional Vice-President, Lawrence
Sump, called Mr. Johannssen to advise him of information he was
receiving from employees in the NW Region about changes, particularly a
reorganization.
b. In a telephone conversation on January 18, Mr. Johannssen made a
demand to bargain over the changes to a Mr. Payne, who is in the labor
relations section of FAA's NW Region. Mr. Payne responded that: "Well,
you know what our position is, Howard. We will consult" (TR 44). Mr.
Payne told Mr. Johannssen that a reorganization plan had not yet been
approved. Mr. Payne offered to provide information to the two PASS
Regional Vice-Presidents whose regions encompassed the NW Region. Mr.
Johannssen advised Mr. Payne that he was the negotiator and should
receive the information.
11a. On February 2, 1982, Mr. Johannssen wrote to the FAA
Administrator to advise him that "unless specific notice to the contrary
is given, the only representative authorized to negotiate on behalf of
PASS with respect to the following subjects is Howard E. Johannssen,
President of PASS" (GC 4, page 1). Among the subjects named were: (1)
"The closing, consolidation or relocation of FAA facilities;" and (2)
"Any reorganization of the FAA or its subdivisions" (ibid). The
Administrator was then advised that "notice of proposed changes in
conditions of employment relating to the above areas should be sent to
the undersigned (Mr. Johannssen)" (ibid). The Administrator was advised
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" (ibid). The
Administrator was advised that local Union representatives at each
facility were designated to handle grievances and act as representatives
at investigatory interviews and formal discussions.
b. On February 8, 1982, Mr. Curran replied to the February 2 letter
to the Administrator. He stated:
As stated previously, it is 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.
See GC 5.
12a. The FASTA/FAA agreement was entered into in 1977. It was made
effective for two years, with an automatic renewal provision unless
either party gave written notice to the other of a desire to amend or
terminate the agreement. See R 1, page 76. Several articles in the
agreement are relevant here:
ARTICLE 47 - TECHNOLOGICAL CHANGES AND FACILITY CLOSING
AFFECTING THE WORK FORCE
Section 1. The employer agrees to notify and consult with the
Union at the regional level, as far in advance as possible, prior
to proposing or implementing technological changes or facility
closings affecting the size or composition of the bargaining unit
work force. . . .
Section 3. Prior to any proposed reorganization of the work
force, the Union will be consulted at the regional level.
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.
See R 1, pages 58 and 68.
b. It is FAA's "national policy" that it and its managers will
"consult but not bargain with PASS," on matters not covered by the
FASTA/FAA agreement (TR 118).
c. It is also FAA's national policy that it and its managers will
notify PASS's regional vice-presidents, and not Mr. Johannssen, in
accord with its prior contract with FASTA. See TR 86.
d. Since December 31, 1982, PASS has demanded to negotiate on some
200 proposed changes in conditions of employment. FAA consistently has
offered to consult and refused to negotiate. See TR 58.
13a. In a February 2, 1982, letter to Mr. Curran, Mr. Johannssen
referred to "FAA's voluntary decision to abide by the terms of the
FASTA/FAA agreement" and the Union's "appreciation for (FAA's)
cooperation in this regard" (GC 6). Mr. Johannssen stated further:
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.
See GC 6.
b. On February 8, Mr. Curran replied that its so-called "voluntary
decision" was based on a "careful reading of pertinent case law" which
indicated to it that "a prior negotiated agreement remains in effect
until a mutual agreement to the contrary is reached," citing NRC, 6 FLRA
No. 9. See GC 7.
14. On May 12, 1982, PASS and FAA began negotiations on a collective
bargaining agreement. Mr. Johannssen testified that the parties were
"not making any headway whatsoever" (TR 80). Mr. Johannssen was a
candid, credible witness. His statement was not contradicted by any
witness for Respondent. Accordingly, it is credited, as later modified
by Mr. Johannssen, himself, who testified that at the last bargaining
session, held in September 1982, agreement was reached on two articles,
after a week's work and with the presence of a representative from the
Federal Mediation and Conciliation Service. In August 1982, PASS filed
some 65 negotiability appeals with the Authority. At the bargaining
table, Respondent has taken the position that "just about everything was
nonnegotiable" (TR 81).
15. On May 28, 1982, Mr. Johannssen wrote to the FAA Administrator
to express his concern about "persistent reports of local and regional
FAA management proposals to make changes in conditions of employment"
and to express his view that "(n)otice and attempted bargaining at the
local level is not sufficient" but, rather, should be part of "the
contract talks" (GC 8, page 1). Mr. Johannssen expressly revoked any
prior bargaining authority given to any PASS representative other than
himself, and stated that he should be notified of all proposed changes
in conditions of employment of bargaining unit members.
16a. On December 27, 1982, pursuant to the NASP of FAA, the Director
of the NW Region sent to the FAA Administrator, for approval, a proposed
reconfiguration of its "airway facilities sectors in the Northwest
Mountain Region to reduce the number from eleven to five" (GC 11, page
2). It was stated, in the transmittal letter, that this reconfiguration
would align the NW Region with "the 80's Maintenance Program" (GC 11,
page 2). The letter states that sector staffing would be gradually
reduced until FY 1990, at which time there would be 107 to 124 positions
in various sectors. These figures include the entire sector staffing,
the sector field offices, the sector field units, and the sector
headquarters. See TR 164.
b. On March 29, 1983, the FAA Administrator gave his approval to the
proposed reconfiguration. See R 2.
c. This step in the 80's Program applied to sector headquarters
offices and will be referred to herein as the "sector reconfiguration."
17. On January 31, 1983, Mr. Johannssen advised Mr. Issac that he
had received "information on your proposed reorganization of the
workforce in the Northwest Mountain Region" and demanded bargaining (GC
10). No evidence of a response to Mr. Johannssen's letter was adduced.
18a. However, by a letter dated April 22, 1983, Mr. Issac did advise
Bobby Mullins, a PASS Regional Vice-President and one of two who
represent bargaining-unit employees in the NW Region, that the
Administrator had approved the NW "Regional Reconfiguration Plan" (GC
11). Mr. Issac advised that some changes had been made since a copy of
the initial draft reorganization proposal had been furnished, and
enclosed an updated copy. Mr. Issac commented that Mr. Mullins had not
provided any comments in response to the initial draft and could provide
them to the approved plan, pursuant to Article 47, Section 3 of the
FASTA/FAA agreement. Mr. Issac advised that implementation would begin
in May, with a target completion date of June 30, 1984.
b. A similar letter of the same date was sent to Lawrence Sump, the
other PASS Regional Vice-President who represented employees in the NW
Region. See R 3.
c. On May 11, 1983, Mr. Johannssen wrote to Mr. Issac, in response
to Mr. Issac's April 22 letter to Mr. Mullins. Mr. Johannssen made a
demand to bargain "concerning the Northwest Mountain Region Plan to
consolidate the Airway Facilities General NAS Sectors" (GC 12), either
in the context of the contract negotiations, or by separate
negotiations. Mr. Johannssen received no response to his letter.
19. On May 16, 1983, Mr. Issac did write to Mr. Sump and Mr. Mullins
to advise them that implementation of "the consolidation of our general
NAS sectors in the Northwest Mountain Region" was proceeding, that it
appeared that seven bargaining unit members would actually relocate,
with all relocations to be completed by June 30, 1984, and that any
"comments" by them would be considered (GC 13(a) and (b)). Mr. Issac
was not willing to negotiate about the changes. See TR 90-91. A copy
of each letter was sent to Mr. Johannssen.
20. On May 24, 1983, Respondent's Acting Director of Labor
Relations, Joseph Noonan, wrote to Mr. Johannssen in reply to a letter
from him of May 16, which is not made a part of the record. It refers
to Mr. Johannssen's designation of himself "as the sole PASS
representative authorized to deal with FAA management on behalf of units
consolidated into the national unit" (R 5). It advises that FAA will
follow the procedures in the agreements which cover these units and
will, "(i)n other words, notify the union representative at the local or
regional level as appropriate when consultation or negotiation is
required under an existing agreement" (R 5). It refers to the
differences of opinion between PASS and FAA over the applicability of
Article 54 of the FASTA/FAA agreement. It urges the PASS to consult,
while the Authority settles the issue of whether FAA must bargain,
instead of merely consulting with it.
21. On June 27, 1983, Mr. Issac sent a letter to all "Northwest
Mountain Region Airway Facilities Personnel" concerning the "Sector
Reconfiguration" (GC 19). It was the third one in a series designed to
keep them informed of the status of the sector reconfiguration. It
advised that 42 employees would be directly affected-- 17 being
relocated, 13 electing to retire or resign, and 12 being accommodated in
place. It advised that the largest majority of these personnel changes
would occur prior to September 30, and all but a few prior to December
31. It announced that the next major milestone in the reconfiguration
would occur on July 10, when Colorado Springs, Grand Junction, Casper,
and Great Falls would "cease to operate as independent sectors" and
would be "converted to sector field offices" and the new expanded sector
boundaries for Billings, Denver and Salt Lake City would become
effective (GC 19). It advised that completion of the reconfiguration
would occur on January 10, 1984, at which time the new sector boundaries
for Seattle and Portland would be implemented and the Boise and Spokane
Sector Offices would close.
22. On July 11, 1983, counsel for PASS served upon FAA and the NW
Region a copy of the unfair labor practice filed in this action. It
alleges that:
Since on or about April 22, 1983 and continuing to date the
FAA, through its agents (sic) Frederick M. Issac, Manager, Airway
Facilities Division, Northwest Mountain Region, has begun and is
continuing to implement changes in working conditions of employees
represented by the Professional Airways Systems Specialists
("PASS") without providing proper notice to or bargaining with
PASS regarding such changes by, among other things, implementing a
reorganization of the FAA's Northwest Mountain Region which has
resulted or will result in changes to the reporting relationships,
work assignments, work schedules and other conditions of
employment of unit employees.
See GC 1(a).
23a. On July 19, 1983, Mr. Issac sent a letter to Mr. Mullins and
Mr. Sump, with a copy to Mr. Johannssen, in which he enclosed a copy of
the "Northwest Mountain Region Airway Facilities Division Operations
Staffing Plan for 1984 through 1990." See R 6 and 8. Mr. Issac sent it
to them in hope that it would "reduce the personal apprehension of (our)
employees by providing them with time frames for office reductions as
far in advance as possible and confirm the fact that each incumbent
w(ould) receive an offer of a similar position, at the same grade level,
within the Northwest Mountain Region before their position is
eliminated" (R 6 and 8).
b. On July 28, 1983, Mr. Johannssen wrote to Mr. Issac and demanded
to bargain over this plan. See R 7. Mr. Issac did not make any
meaningful response to this letter. See TR 80. At the time he received
the letter, Mr. Issac was not then willing to negotiate over this plan.
See TR 98.
c. This plan was introduced into evidence as General Counsel's
Exhibit 14. It is dated July 15, 1983. A stated purpose of the plan is
"To provide management with a systematic approach for transition to the
80's Maintenance Program" (GC 14, page 2). One of assumptions upon
which the staffing plan is based is the sector headquarters staffing.
See GC 14, page 5, para. 4. This plan will be referred to as the
"sector staffing plan" portion of the 80's Maintenance Program. Unlike
the sector reconfiguration (GC 11), the sector staffing plan did not
have to be approved by the FAA Administrator, but only by Mr. Issac.
See TR 150. While Mr. Issac's office (AF Division) implemented the
sector reconfiguration plan, the sector staffing plan was implemented by
the Sector Headquarters Offices. See TR 151. While the sector
reconfiguration plan had no impact on service to users of FAA equipment,
the sector staffing plan did, as it affected staffing in the Sector
Field Offices which maintain FAA facilities.
24a. On September 13, 1983, Mr. Issac sent a letter to Lloyd G.
Burrell, an FAA employee located in Olympia, Washington. The letter
advised him that, due to reductions in the field maintenance staffing,
Mr. Issac proposed to relocate him to the Rock Springs, Wyoming, field
sector office, at the same grade (GS-11), effective November 27.
Failure to accept would subject him to removal from Federal service,
according to the letter.
b. Mr. Burrell objected to the relocation, for health reasons and
because he had not had an opportunity to discuss alternative locations.
See GC 23.
c. Mr. Issac has since decided to find a location other than Rock
Springs for Mr. Burrell, who was still at Olympia at the time of the
hearing. See TR 106.
d. This relocation of Mr. Burrell is a part of the sector staffing
plan. See TR 107 and GC 14, page 15. It calls for the relocation
during the 4th quarter of FY-1984. As of the date of the hearing, five
employees remained at Olympia, with their supervisor already transferred
to Seattle. See TR 108.
25a. On September 14, 1983, Harry J. Macdonald received a letter
similar to that received by Mr. Burrell. Mr. Macdonald was advised that
he was to be relocated from Olympia to Moses Lake, Washington, at the
same GS-11 grade, effective November 27.
b. Mr. Macdonald also objected to the relocation. See GC 24. After
considering his objections, Mr. Issac rejected them, on November 10,
1983, but delayed the reassignment until January 8, 1984. See GC 25.
c. Mr. Macdonald's relocation is also part of the sector staffing
plan. See TR 107 and GC 14, page 15.
26. On September 23, 1983, the Donald G. Coones, Manager, Seattle
Airways Facilities Sector, sent a memorandum to all sector employees, to
advise them of the possibility of moves and job security. It also
advised the employees of relocations that had taken place in both Sector
Field Offices and Sector Headquarters Offices. See GC 15.
27a. On September 28, 1983, Mr. Johannssen, having learned of the
Burrell and Macdonald transfers from Mr. Burrell, called Mr. Issac to
renew his demand to bargain over the relocations and changes, and to
advise him that PASS would seek a temporary restraining order if he
continued to move people. See TR 50-52.
b. After speaking with Mr. Issac, Mr. Johannssen called FAA's
Director of Labor Relations, Edward Curran, and renewed his demand to
bargain on the reorganization in the NW Region. See TR 52-53.
28a. On November 23, 1983, a temporary injunction was issued by a
Judge of the United States District Court for the Western District of
Washington. It orders that:
Federal Aviation Administration, Washington, D.C., its
management officials, supervisors, representatives, agents,
employees, attorneys, and all other persons acting on its behalf
are enjoined and restrained from unilaterally changing the terms
and conditions of employment of its employees in the Northwest
Mountain Region who are represented by Professional Airways
Systems Specialists, including, but not limited to, transferring,
reassigning, or otherwise directing the movement of employees
between different work stations without first giving notice to
Professional Airways Systems Specialists concerning such changes
and without bargaining with Professional Airways Systems
Specialists regarding the impact and implementation of such
changes.
b. In an affidavit prepared in connection with the District Court
proceeding, Mr. Issac represented that five personnel actions were
pending in the NW Region as a result of the sector staffing plan and
that two employees (N. Jaussi and S. Jones) had declined offers of
reassignment after their positions in Malad City, Idaho, were
eliminated, and were scheduled to retire on December 31, 1983.
Evidence concerning a status quo ante remedy as applicable
to
the sector reconfiguration plan.
29a. Eight bargaining-unit employees were affected by the sector
reconfiguration plan. Of these, four retired, one resigned, and three
were transferred (from Boise to Billings, from Colorado Springs to
Denver, and from Spokane to Seattle). See TR 192, 201, 194, 182 and GC
20. FAA recognized that the change was "major," that it involved a
"long and difficult process," and that it would involve the sale of
residences by relocated employees (GC 18, page 2).
b. If status quo ante relief should be granted, Respondent would
face "two options" (TR 181). One would be to reestablish six sector
headquarters offices, which have been closed, and fully staff them. The
other, "most likely alternative," would be to move the bargaining-unit
employees back to the closed offices with, in the opinion of Mr. Issac,
"nothing for them to do until we could negotiate a reassignment with the
union" (TR 182).
c. According to figures produced by Respondent, it would cost
$1,961,985 to reestablish and fully staff the original sector
headquarters offices as they were before the reconfiguration was
implemented, that is, if the first option were followed. See R 9. This
figure breaks down into a one-time cost of $645,000 for moving expenses
of 43 persons, or $15,000 per employee, an estimated annual cost of
$1,216,985 for salaries for them, and $100,000 for rental of facilities,
utilities, and transfer of equipment.
d. The salary cost is shown because Respondent regards the move of
the relocated employees back to their old locations as a "total waste"
(TR 187), moving personnel where they are not needed and away from
locations, where they are needed. Of the 43 persons included in the
breakdown, "30, maybe 35" are still in FAA's employ (TR 189).
Respondent also counts all 43 because, in Mr. Issac's opinion, it would
have "to back fill in behind those people when they were re-employed in
these locations" (TR 189).
e. In preparing these figures, Respondent did not check to see
whether, in every case, a move would actually be necessary. See TR 190
and 198-201.
f. Also, the offices involved were not fully staffed at the time of
implementation of the plan. The General Counsel, in asking for status
quo ante relief, asks only for a return to the status as it existed at
the commencement of the reconfiguration. See TR 193.
g. According to other figures estimated by Mr. Issac, it would cost
in the range of $250,000 in annual salaries, plus $120,000 or $130,000
in moving expenses, to follow the "most likely" option of just moving
the eight bargaining-unit employees back to the closed offices. Of the
eight, five might not have to be moved. See TR 202. These figures were
admittedly "guess(ed)" at by Mr. Issac (TR 183). The salary cost is
included because Respondent regards such use of personnel as a "total
waste" (TR 187), and because it would have to staff the desks the
employees leave behind, if the bargaining process "stretches on for
months" (TR 195). Respondent admits that, overall, the NW Region is
overstaffed so that there are plenty of employees to fill positions.
See TR 202-203.
Evidence concerning a status quo ante remedy as applicable to the
sector staffing plan.
30a. Insofar as bargaining-unit employees are concerned, there have
been 11 reassignments and 5 retirements pursuant to the implementation
of the staffing plan. See TR 183-184. The estimated one-time cost of
moving these employees back to their former locations is $165,000.
There would also be an estimated annual recurring cost of $431,344 for
salaries. See R 11 and TR 184-185. These figures are based on full
staffing at the former locations. However, over a period of time,
preceding implementation of the plan, FAA had "intentionally attrited
down over a period of time," so that, in "many offices," staffing was
down to 3 or 4 employees, whereas they had been staffed with "9, 10, or
12 people, as full offices" (TR 191).
b. The result of such a move would be the placement of personnel
where they are not needed and away from offices where they are needed,
and which are "likely to be understaffed" (TR 204). This could affect
the timeliness of getting facilities back on the air. However,
apparently none of the facilities involved are "immediate response"
ones, so that a certified technician is not needed "right on duty" (TR
197). Also there is overstaffing, overall, in the NW Region.
Discussion and Conclusions
A. A deposed union (FASTA) cannot waive the statutory right of a
successor union (PASS) to bargain on behalf of unit employees who have
chosen the successor union as its exclusive representative.
FAA does not deny its refusal to bargain with PASS, but asserts
herein, as it has in numerous other cases involving unilateral changes
in working conditions, /8/ that the waiver of the right to negotiate
midterm changes contained in the FASTA/FAA contract limits FAA's
obligations to PASS to consultation rights only.
It is well established that a waiver of the statutory right to
bargain will not be lightly inferred, and will be found only if the
exclusive representative clearly and unambiguously waived its bargaining
rights. Department of the Air Force, Scott Air Force Base, Illinois
("Scott AFB"), 5 FLRA No. 2, 5 FLRA 9 (1981); Department of the Air
Force, U.S. Air Force Academy, 6 FLRA No. 100, 6 FLRA 548 (1981);
Library of Congress, 9 FLRA No. 51, 9 FLRA 421, 423 (1982) and 9 FLRA
No. 52, 9 FLRA 427, 429 (1982).
In the instant case, the General Counsel does not contend that
Articles 47 and 54 of the FASTA agreement do not contain a waiver.
However, since the waivers were negotiated by FASTA, the previous
exclusive representative, and not by PASS, the General Counsel contends
that it may not be applied so as to foreclose the newly certified union
from the exercise of its most fundamental statutory right. 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 PASS's repeated
insistence on enforcing its statutory right to negotiate over changes in
working conditions.
FAA's contention that PASS is bound by FASTA's waiver is grounded
upon its interpretation of U.S. Nuclear Regulatory Commission ("NRC"), 6
FLRA No. 9, 6 FLRA 18 (1981), which dealt with a contract clause
granting the union the right to use agency bulletin boards. See RBr
7-10. In NRC, the Authority concluded:
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 ("Navy"), 4 FLRA No. 100 (4 FLRA 760) (1980); and
Department of the Air Force, 35th Combat Support Group (TAC),
George Air Force Base, California ("TAC"), 4 FLRA No. 5 (4 FLRA
22) (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.
See 6 FLRA at 19-20.
The General Counsel and PASS would limit the application of NRC to
contract provisions which establish or define existing personnel
policies, practices and terms and conditions of employment, but exclude
any waiver of a statutory right or matter concerned solely with the
statutory relationship between the parties.
In agreement with Administrative Law Judge Garvin Lee Oliver, who has
decided the same issue presented here in favor of the General Counsel
and PASS, /9/ I find that this distinction makes sense.
The desirability of "stability in Federal labor-management relations"
spoken of in NRC (6 FLRA at 20), applied to a right gained by contract--
the use of agency bulletin boards. It takes a quantum leap to say that
it is also desirable, in the name of "stability," to take away the
fundamental right, mandated by the Statute, that employees be free to
choose the exclusive representative who is to represent them in
exercising the statutory right of unions to bargain on behalf of the
unit. See Section 7101, that the "public interest" is served by
"collective bargaining" on behalf of employees "through labor
organizations of their own choosing in decisions that affect them. . .
." Thus, the Statute itself would seem to proscribe a "stability"
whereby a repudiated union could impose its will, the waiver of the
fundamental right to bargain, upon a newly chosen union.
Such a reading of NRC would also be at odds with Authority precedent
holding that contract clauses concerning the bargaining relationship
between the parties, unlike clauses relating to working conditions of
unit employees, are subordinate to the dictates of the Statute, and
therefore cease to bind anyone upon the issuance of a new certification.
Thus, the Authority has ruled that once it issues a certification on
consolidation of units, the obligation to bargain that formerly existed
between a local union and local management ceases, despite contract
terms specifically providing for negotiations and despite the rule that
requires continuation of the conditions of employment established in the
local agreements. See American Federation of Government Employees,
Local 1164, 6 FLRA No. 60, 6 FLRA 342, 343-344 (1981); and Department
of Health and Human Services, Social Security Administration, 6 FLRA No.
33, 6 FLRA 202 (1981). If contract terms concerning the bargaining
obligation of the parties do not survive a certification on
consolidation, they certainly cannot be viewed as surviving the
certification of a completely new and distinct bargaining agent.
This view finds support in cases decided under Executive Order No.
11491, as amended, which controlled labor relations in the Federal
sector prior to enactment of the Statute. The Federal Labor Relations
Council (predecessor of the Authority) held, in Internal Revenue
Service, Ogden Service Center, et al. and Internal Revenue Service,
Brookhaven Service Center, 6 FLRA 311 (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. See 6 FLRC at 319 and 321-322. It was
also necessary that the agreement be brought into conformance with
changes in laws and regulations. See 6 FLRC at 320 and 322.
And, under the National Labor Relations Act which controls labor
relations 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.) In rejecting the
employer's arguments, the Board 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.
The record here indicates just how long PASS could be "hobbled" by
FASTA's contractual waiver of bargaining rights. Bargaining on a
FAA/PASS contract began in May 1982. The last negotiating session was
held in September 1982. Sixty-five negotiability appeals have resulted
thus far, with FAA taking the position that just about everything was
nonnegotiable. Only two articles have been agreed upon, and then only
after a week's work, with the assistance of a representative from the
Federal Mediation and Conciliation Service. See finding 14, above.
While this bargaining process thus slowly struggles towards a new
collective bargaining agreement, FAA argues that it remains free to
institute "major" changes (finding 29a), unfettered by any obligation to
bargain with the chosen representative of its employees, PASS. It is
little wonder that FAA thus clings to the terms agreed to by it with the
representative repudiated by its employees. In view of FAA's 80's
Maintenance Program, calling for sweeping changes, including those here
made and more to come, proceeding under terms of the FASTA agreement
gives FAA an advantage it is not likely to concede by any quick
agreement on a collective bargaining agreement with PASS. When the
Authority ruled, in NRC, that "stability" is desirable, it could hardly
have foreseen that FAA, in the name of "stability," would deny its
employees the right of effective representation in this manner. /10/
The intent of NRC seems to be to preserve collective bargaining, by
requiring an agency to maintain existing conditions of employment during
a period of negotiation, by insuring that any changes are negotiated,
and not unilaterally imposed. To so apply this rationale to deprive a
newly certified union of that very right creates an anomaly which should
be eschewed. The only right secured, in NRC, was a contract one-- use
of agency bulletin boards. Thus the holding did not grant the union a
right to which it was otherwise entitled by law. In contrast, upon
certification, PASS acquired the statutory right to bargain, which it
clearly has not waived. Included in this right is the right to insist
upon negotiations prior to the implementation of changes in conditions
of employment. (Scott AFB, 5 FLRA at 10-11), which PASS has repeatedly
done. FAA would force PASS to negotiate an agreement to gain the right
to negotiate. This is surely not the situation Congress intended when
it mandated that, upon certification, agencies must bargain collectively
with the representative chosen by their employees.
No case has been cited by FAA which holds that one party may waive
the statutory rights of another. Indeed, to so hold would be contrary
to hornbook law. See 28 Am.Jur.2d. "Estoppel and Waiver," Sec. 155 at
837-838 (1966). It would also be contrary to the Supreme Court's
admonishment that an exclusive representative's attempted waiver of
statutory rights will be condoned only "(p)rovided the selection of the
bargaining representative remains free." Mastro Plastics Corp. v. Labor
Board, 350 U.S. 270, 280 (1956, emphasis by the Court). Here, FAA would
allow a repudiated union to waive a statutory right of a freely-elected
successor union-- an election which may have turned upon the fact that
the repudiated union waived the statutory right to bargain in return for
a dues checkoff agreement that benefitted FASTA institutionally, but did
nothing to enhance the working conditions of the unit employees. See
footnote 10, above. Employees can hardly be said to be "free" to elect
a new representative if, for an indefinite period, they remain tied to
waivers granted by the representative they rejected.
By refusing to negotiate with PASS over its step-by-step
implementation of its 80's Maintenance Program in the NW Region, FAA
committed an unfair labor practice, in violation of Sections 7116(a)(1)
and (5) of the Statute.
B. Similarly, a deposed union may not, by contract, fix upon its
successor the union representatives authorized to deal with management.
As a corollary to its waiver-of-right-to-bargain defense, Respondent
also argues that it fulfilled its obligation to notify PASS of proposed
changes by notifying regional representatives of PASS, as provided for
in the FASTA/FAA agreement. See RBr 10-11 and 16. FAA takes this
position in spite of the fact that PASS's president repeatedly informed
FAA that he was the sole union representative designated to receive such
notices.
This Authority has repeatedly held that the parties have the
statutory right to designate representatives of their own choosing.
American Federation of Government Employees, AFL-CIO, 4 FLRA No. 39, 4
FLRA 272, 274 (1980); Philadelphia Naval Shipyard, 4 FLRA No. 38, 4
FLRA 255 at 269 (1980); Department of Health and Human Services, Social
Security Administration, Field Assessment Office, Atlanta, Georgia, 11
FLRA No. 78, 11 FLRA 419 at 429 (1983). For reasons discussed above in
connection with the bargaining waiver issue, FAA/PASS cannot be found to
have waived its right to designate its own representatives.
Under the circumstances, Respondent's failure and refusal to provide
notice to the Union's designated representative must be found to
constitute an unfair labor practice in violation of Sections 7116(a)(1)
and (5) of the Statute.
C. The scope of the complaint is broad enough to cover all steps in
FAA's 80's Maintenance Program in the NW Region.
Respondent's brief reiterates the position taken at the hearing that
the complaint "is insufficient to allow consideration of the field
office reorganization in the proceeding." See page 11 of its unnumbered
brief. This position was rejected at the hearing (see TR 166-167) and,
upon reconsideration, is rejected again.
The facts show that FAA's NW Region, since on or about April 22,
1983, has decided upon and begun implementation of FAA's Airway
Facilities 80's Maintenance Program, whose purpose is to reconfigure and
reorganize airway facilities by consolidating existing work centers.
See findings 8, 18a and d, and 23c, above. FAA has done so in two
steps. The first involves reconfiguration of the sector headquarters'
offices. This is the change which Respondent believes is covered by the
complaint. The second, implementation of which began in July 1983,
involves staffing in the sector field offices-- the changes pursuant to
which Respondent argues are not covered by the complaint.
The unfair labor practice charge, upon which the complaint in this
proceeding is based, was served upon FAA several days prior to the July
1983 phase of the reorganization begun in the NW Region to meet FAA's
80's Maintenance Program. It alleges that since on or about April 22,
1983, the NW Region has begun, and "continuing to date," has implemented
"a reorganization" which "has resulted" or "will result" in changed
conditions of employment for bargaining-unit employees. See finding 22,
above. The charge is thus broad enough to cover the changes in both the
headquarters and field offices.
The complaint names the reorganization involved in the following
language:
On or about April 22, 1983, Respondent decided to reorganize
the National Airspace System (NAS) Airway Facilities Sectors in
Respondent's Northwest Mountain Region by, inter alia, reducing
the number of Sector Headquarters within said Region from eleven
to five.
See paragraph 7(a) of GC 1(d).
Paragraph 7 of the complaint, up to the words "inter alia," clearly
is broad enough to cover both the headquarters and the field office
phase of the reorganization in the NW Region, which is designed to meet
the overall requirements of FAA's 80's Maintenance Program. All the
unit employees covered by the changes in both type offices work in
"Airway Facilities Sectors" in the "Northwest Mountain Region." See
finding 18d, above.
The complaint's use of "inter alia," in the paragraph describing the
reorganization involved in this proceeding, is not a limiting one. It
serves merely to give an example, and uses the first phase of the
reorganization for this purpose.
To the extent that the complaint may have misled Respondent, no harm
has been done, because an offer was made at the hearing to continue the
hearing, if necessary, in order that Respondent not be prejudiced. No
such continuance was requested. See TR 144A. And the issue of the
field office staffing changes was fully litigated, at the hearing. Cf.
footnote 1 to NRC, 6 FLRA No. 9, 6 FLRA 18 (1981), where the Authority
so commented, in affirming the denial of a motion filed by the
respondent, in that case, on the ground that it did not receive notice
of all issues of law and fact.
D. The status quo ante remedy is appropriate.
In addition to the usual request for a cease and desist order and a
posting of a notice to employees, the General Counsel requests that
Respondent be ordered to:
. . . rescind the changes which have resulted from its unlawful
unilateral implementation of the sector reorganization and to
restore the conditions existing prior thereto until such time as
Respondent fulfills its statutory obligations to the Union. /10/
See GCBr 17. /11/ At the hearing, counsel for the General Counsel
explained that the requested relief applied to conditions as they
existed just before the changes, that is when the offices were no longer
fully staffed, in anticipation of the changes to be implemented. See TR
193 and finding 30a, above.
The Union concurs with the request for a status quo ante remedy, and
suggests that "employees be given the option of returning or not
returning to their former jobs, in recognition of the possibility that
some would not want to return to their old jobs, particularly since the
return might be temporary only, pending the outcome of negotiations.
See CPBr 14.
Respondent argues that a status quo ante remedy would have a
"substantial impact on the agency's operations," "not promote the
efficiency of the agency" (RBr 17), and "might well have an actual
impact on the maintenance of the facilities (RBr 18).
Respondent also argues that such a remedy would be inappropriate
because it did inform PASS of its plans and offered it the opportunity
to consult regarding them, under its "well founded" belief that it was
following the law (RBr 16). As to this point, it is clear that
Respondent's offers to consult, where accepted, have been turned against
the Union. See FAA NW, OALJ-83-80 at page 18, where FAA argued "that it
met any obligation to bargain in good faith . . . notwithstanding that
it described its conduct as 'consultation'." FAA took the same position
in FAA LA, LAJ-83-64. at page 8. In view of this practice, one can
hardly give FAA any credit for offering to consult, an offer which
carries none of the privileges of negotiation, such as taking impasses
to the Federal Services Impasses Panel. See Section 7119 of the
Statute.
All parties agree that this Authority's decision in Federal
Correctional Institution, 8 FLRA No. 111, 8 FLRA 604 (1982) sets the
five guidelines to be followed in determining the appropriateness of
status quo ante relief, as follows:
1. Whether and when the union was notified of the change.
2. Whether and when the union demanded negotiations.
3. The willfulness of the agency's refusal to bargain.
4. The nature and extent of the impact of the change upon
employees.
5. The degree of disruption or impairment upon the efficiency
and effectiveness of the agency's operations, should the status
quo remedy be imposed.
As to the first guideline, FAA acted in knowing defiance of PASS's
request that notice be given to Mr. Johannssen, its President, and
instead notified regional representatives who held no authority to
bargain or receive notice of the changes proposed. Since a union acts
only through authorized representatives, notice to unauthorized ones
does not suffice, in the view of the Authority. See Department of
Health and Human Services, Social Security Administration, Field
Assessment Office, Atlanta, Georgia, 11 FLRA No. 78, 11 FLRA 419-420 and
429 (1983).
As to the second guideline, despite FAA's refusal to give notice to
PASS's designated representative (its President, Mr. Johannssen), Mr.
Johannssen repeatedly demanded bargaining over the changes at issue--
when he first heard rumors about them; when FAA confirmed the rumors;
when FAA announced steps being taken to implement the changes; and when
he first learned that employees were actually being transferred pursuant
to implementation of the changes.
Third, the FAA's refusal to bargain over the changes in the NW Region
was deliberate and in keeping with its national policy. The fact that
this refusal is based on a mistaken legal position does not detract from
the deliberateness of FAA's conduct. A party's mistake of law does not
render deliberate conduct any less willful. In short, the FAA had a
choice-- it could bargain (and could do so even if it believed it was
not required to do so), or it could refuse to bargain. It willfully
chose the latter course, one greatly to its advantage, and, therefore,
faces the consequences of its decision.
Fourth, the impact of the change was severe. A number of employees
have been forced to relocate by hundreds of miles. Such relocations
have involved the trauma of selling homes and uprooting families. Some
employees have retired or resigned rather than face relocation.
Fifth, and last, the record does not demonstrate an excessive degree
of disruption for FAA's NW Region. Since November 23, 1983, FAA's plans
for further implementation of its 80's Maintenance Program have been on
hold, under the court injunction. Prior thereto, only 24 employees had
been affected. See findings 29a and 30a. While a return of them to
their former duty stations might result in an imbalance in workload,
creating a temporary need at their current duty stations, FAA can draw
upon its excess of personnel in the NW Region to fill this gap while the
bargaining process is completed. Since none of the relocated employees
were shown to be serving at facilities where an "immediate response" is
required (finding 30b), the fear of FAA, that imposition of this remedy
might have an impact on the maintenance of facilities, does not appear
to be well founded. Furthermore, adoption of the Union's suggestion, to
return relocated employees to their former duty station only at their
option, may result in few exercising this option, perhaps only those who
have been unable to sell their homes and move their families. After
all, the return to the former duty station may only be temporary,
pending the outcome of the negotiations-- hardly an enticement to most
employees to take up the option of another relocation. Similarly,
retired employees may not be tempted by an offer to leave retirement for
what could be only a temporary period.
Much of the evidence offered by Respondent, as to the disruption or
impairment upon the agency's efficiency and effectiveness, consisted of
cost estimations of any status quo ante remedy. Dollar cost, per se,
however, does not appear to be what the Authority had in mind in
articulating its fifth guidelines. And, in any event, Respondent's
estimations seem grossly inflated. They are based on fully staffed
offices, which was not the situation at the time the changes here
involved were implemented. See finding 30a, above. They are based on a
relocation cost of $15,000, per employee, without regard as to how many
would actually have to be moved. Some may not have yet sold their homes
or relocated their families, for example, Mr. Burrell and Mr. Macdonald.
See findings 24b and 25b, above. Those affected employees who took
retirement rather than face relocation would probably not have moved.
Also, a major cost element in Respondent's projections is salaries for
current employees; and yet their salaries will be paid whether or not a
status quo ante remedy is ordered.
Thus, each of the five guidelines of Federal Correctional Institution
cuts in favor of imposing the status quo ante remedy sought. While
there will be some costs and a measure of inefficiency and
ineffectiveness resulting from its imposition, these results are
moderate when compared to the adverse impact suffered by the affected
employees from Respondent's refusal to bargain with their chosen
representation over the impact and implementation of FAA's 80's
Maintenance Program in the NW Region. Accordingly, status quo ante
relief will be ordered, with acceptance of the Union's suggestion that
any relocation be at the option of the employee. Optional relocation
will obviate any distress to employees who may have come to prefer their
new duty station, or prefer not to endure another, and perhaps
temporary, relocation.
E. A nationwide cease-and-desist and posting order is appropriate.
1. The General Counsel and the Charging Party join in requesting the
issuance of a broad cease and desist order, prohibiting FAA from
changing working conditions without first notifying PASS and providing
it an opportunity to bargain concerning the proposed changes. See CPBr
23-24 and Attachment A to GCBr. As for the posting of an order to
employees notifying them of the relief granted herein, the General
Counsel asks only that it be posted in FAA facilities in its "Northwest
Mountain Region." See attachment A to the brief of the General Counsel.
The Charging Party proposes a notice, but does not make a request as to
the geographic area of the posting. Based upon the record made in this
proceeding a broad cease-and-desist and posting order is deemed to be
appropriate.
The evidence shows that the changes made, in this case, were made
pursuant to a nationwide plan which is applicable to all FAA airway
facilities and which will effect changes in working conditions at these
facilities throughout the 1980's. See finding 8, above.
The evidence shows that it is also a nationwide policy of FAA to
adhere to the terms of its expired contract with FASTA, and to refuse to
bargain with the successor union, PASS, over the changes mandated in
this plan, or to notify the authorized representative of PASS of these
changes. This policy had generated some 200 refusals to bargain, as of
the time of the hearing. Charges of unfair labor practice charges are
being filed regularly, if not daily, according to the parties. See
footnote 3, above.
Ordinarily, it may be fair and reasonable to assume that a Federal
agency will follow, throughout its facilities, a principle of law
established at one. This Authority has so assumed as to labor
organizations. See, e.g., National Treasury Employees Union, 10 FLRA
No. 91, 10 FLRA 519 at 522 (1982) where the union was testing a
nationwide policy of not furnishing attorneys to nonmembers, at the U.S.
Customs Service and the Nuclear Regulatory Commission. In that case the
Authority ordered the posting only at the facilities of those two
agencies, and not at all exclusive units represented by the union. Even
in that case, however, the Authority did not limit the posting to only
those facilities where the policy was actually implemented. See 7 FLRA
at 522, 532 and 537. And, in dealing with an agency which had committed
an unfair labor practice, the Authority modified an order recommended by
an administrative law judge, and ordered a posting at all facilities of
an agency where the union was the exclusive representative, even though
the violative act occurred as to an employee employed at only one. See
United States Forces Korea/Eighth United States Army, 11 FLRA No. 79, 11
FLRA 434, at 437, 441 and 453 (1983). The particular a circumstances
justifying this broad posting order was that the employee found to have
been discriminated against because of union activity was the union
president and, as such, "represent(ed) employees at several of
Respondent's facilities through Korea" (11 FLRA at 437).
Here, we have a union representing employees at facilities throughout
the United States and being held hostage to a nationwide policy of the
agency that is applicable to each facility, and denies to the union its
statutory right to bargain and designate its own representatives to deal
with management. Here, we also have the agency's Director of Labor
Relations issuing an intimidating letter to the union president when,
shortly after certification of the union as the exclusive representative
of a nationwide unit, the union President asserted the union's statutory
right to bargain on behalf of the unit. The Director's January 21,
1982, letter to the union President stated that "FAA " . . . would not
be influenced by threats and demands of labor organizations" and that
"rhetoric such as that contained in your January 8 letter has previously
worked to the extreme detriment of another union formerly representing
FAA employees." See finding 9, above. This was clearly a reference to
PATCO, whose exclusive representative status was revoked by the
Authority on October 22, 1981. See Professional Air Traffic Controllers
Organization, Affiliated with MEBA, AFL-CIO and Federal Aviation
Administration, Department of Transportation ("PATCO"), 7 FLRA No. 10, 7
FLRA 34 (1981). In addition, PATCO and/or its striking members suffered
criminal and civil contempt citations and dismissals from the Federal
service. /12/
There is nothing in this record to justify such a taunt to a
newly-certified union whose President was only asserting statutory
rights. It seems calculated to have a coercive effect upon the union's
President and restrain him in the exercise of statutory rights. /13/ It
suggests a mind-set at FAA's highest levels to keep unions from becoming
aggressive in seeking their rights. Accordingly, a cease-and-desist and
posting order will be recommended that is applicable to all FAA airway
facilities where unit employees work, so that all unit employees are
protected and know that this Authority will protect them when exercising
legitimate rights, and not restrict aggressive leadership attempting to
secure them, as long as they and their leadership act within the
framework of the Statute, for example no striking in the manner of PATCO
and its members. Cf. PATCO where it was held that the posting notice
"should be given the widest circulation, in order to ensure, to the
maximum extent possible, that all those affected should be sufficiently
informed" (7 FLRA at 62). In PATCO, the notice to employees was that
the exclusive recognition status of their chosen representative had been
revoked. Such a broad order is equally appropriate here, where the
notice will be to employees that their chosen representative must be
accorded its full statutory rights, including the right to bargain and
designate officials to deal with management.
Ultimate Findings and Order
It has been shown, by the preponderance of the evidence, /14/ that
Respondent committed and is committing the alleged unfair labor
practices, and thus violated and is violating Sections 7116(a)(1) and
(5) of the Statute.
Accordingly, and pursuant to Section 7118 of the Statute and 5 CFR
2423.29, it is hereby ordered that the Federal Aviation Administration,
Washington, D.C. shall:
1. Cease and desist from:
(a) Implementing changes in the working conditions of employees
exclusively represented by the Professional Airways Systems
Specialists (PASS), such as Northwest Mountain Region general NAS
sector reorganization, without providing prior notice to its
designated representative and affording it the opportunity to
negotiate regarding the impact and implementation of the changes.
(b) In any like or related manner, interfering with,
restraining or coercing employees in the exercise of rights
assured them 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 implementation of the Northwest Mountain Region
general NAS sector reorganization, including the sector
reconfiguration and the sector operations staffing plan, and
restore all conditions of employment affecting bargaining unit
employees which were in effect immediately prior to such changes,
including offering to relocated and former employees the option of
returning as employees to their former duty stations.
(b) Notify PASS' designated representative, Howard Johannssen,
of any intention to reimplement the general NAS sector
reorganization and, upon request, negotiate regarding the impact
and implementation of the change prior to implementation thereof.
(c) Post at its facilities copies of the Notice, attached
hereto as Appendix B, on forms to be furnished by the Authority.
Upon receipt of such forms, they shall be signed by the
Administrator of the Federal Aviation Administration 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
Administrator shall take reasonable steps to insure that such
notices are not altered, defaced or covered by any other material.
(d) Pursuant to 5 CFR 2423.30 notify the Regional Director,
Region IX, 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.
ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: January 30, 1984
Washington, DC
APPENDIX B
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE PURPOSES AND 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 implement changes in the working conditions of employees
exclusively represented by the Professional Airways Systems Specialists
(PASS), such as the Northwest Mountain Regional general NAS sector
reorganization, without providing prior notice to its designated
representative and affording it the opportunity to negotiate regarding
the impact and implementation of the changes. WE WILL NOT in any like
or related manner, interfere with, restrain or coerce employees in the
exercise of rights assured them by the Federal Service Labor-Management
Relations Statute. WE WILL rescind the implementation of the Northwest
Mountain Region general NAS sector reorganization, including the sector
reconfiguration and the sector operations staffing plan, and restore all
conditions of employment affecting bargaining unit employees which were
in effect immediately prior to such changes, including offering to
relocated and former employees the option of returning as employees to
their former duty stations. WE WILL notify the PASS' designated
representative, Howard Johannssen, of any intention to reimplement the
general NAS sector reorganization and, upon request, negotiate regarding
the impact and implementation of the change prior to implementation
thereof.
. . . (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 IX, whose address is: 530
Bush Street, Suite 542, San Francisco, CA 94108, and whose telephone
number is: (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ The Charging Party filed an untimely opposition to the
Respondent's exceptions which has not been considered by the Authority.
/2/ The Authority specifically adopts the Judge's finding that the
scope of the complaint was broad enough to cover all aspects of the
Respondent's reorganization involved herein.
/3/ The Authority also notes the Respondent's withdrawal of its
exceptions to this particular finding of the Judge based on the
Authority's decision in Federal Aviation Administration, Northwest
Mountain Region.
/4/ The record also indicates that on November 23, 1983, a temporary
injunction was granted by the U.S. District Court for the Western
District of Washington essentially prohibiting the FAA from further
transferring or reassigning bargaining unit employees in the Northwest
Mountain Region without first notifying the Charging Party and
bargaining regarding the impact and implementation of such changes. As
of the date of the decision herein, the temporary injunction remains in
full force and effect.
/5/ See, e.g., U.S. Government Printing Office, 13 FLRA 203 (1983)
and Bureau of Government Financial Operations Headquarters, 11 FLRA 334
(1983).
/6/ Section 7116 provides, in pertinent part, that:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency -
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter; . . .
(or)
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter. . . .
Section 7102(2) provides that one employees' right is the right "to
engage in collective bargaining with respect to conditions of employment
through representatives chosen by employees under this chapter."
/7/ The following abbreviations will be used in this decision. "TR"
refers to the transcript. "GC" refers to the exhibits of the General
Counsel, and "R" to those of Respondent. "GCBr" refers to the brief of
the General Counsel, "RBr" to that of Respondent, and "CPBr" to that of
the Charging Party. Corrections to the transcript are made pursuant to
5 CFR 2423.19(r), as set forth in Appendix A, hereto.
/8/ The General Counsel asks that judicial notice be taken of the
Motion to Expedite Decisions dated September 27, 1983, and signed by
FAA's Director of Labor Relations, the General Counsel, and PASS's
counsel. All parties to the motion aver there are 25 unfair labor
practice complaints against FAA now pending trial on this issue, with
additional charges being filed regularly, if not daily. A copy of the
motion is attached to the General Counsel's brief, as Exhibit 1. This
motion is judicially noticed.
/9/ See Federal Aviation Administration, Northwest Mountain Region,
Seattle, Washington and Federal Aviation Administration, Washington,
D.C. ("FAA NW"), OALJ 83-80, Case Nos. 9-CA-20280 and 9-CA-20410,
decided April 25, 1983, involving a unilateral change in a holiday
staffing policy and practice.
It should be noted that a contrary conclusion was reached by
Administrative Law Judge Salvatore J. Arrigo, in Department of
Transportation, Federal Aviation Administration, Los Angeles, California
("FAA LA"), OALJ-83-64, Case No. 8-CA-20260, decided March 11, 1983,
involving a unilateral change in work schedules. Judge Arrigo noted
that: "(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."
Both decisions are pending before the Authority on exceptions. They
are the decisions referred to in the Motion to Expedite Decisions
alluded to in footnote 8, above.
/10/ FAA contends that this Authority's decision in NRC justifies
such a result because it gave up something in return for FASTA's waiver
of the right to bargain. See RBr 10. This record does not indicate
what FAA gave up. However, the findings in the two previous
administrative law judge decisions, involving this same FASTA/FAA
contract, indicate that what FAA gave up was an immediate agreement
authorizing dues checkoff for FASTA. See FAA NW, page 4 of OALJ-83-80
and FAA LA, page 10 of OALJ-83-64. Assuming, then, that this is what
FAA gave up, it is noted that dues withholding was not a statutory right
at the time the FASTA/FAA agreement was reached, in 1977. Upon
enactment of the Statute, in 1978, dues withholding became a right
bestowed by statute. See 5 U.S.C. 7115. Thus, FAA gave up nothing in
return for binding PASS to a waiver of bargaining rights, in 1983, that
was agreed to by FASTA, in 1977.
/11/ In footnote 10, the General Counsel suggests the following
alternative:
. . . if appropriate, the instant order may provide that all
employees remain in place during the pendency of the collective
bargaining negotiations but that any agreement reached be
retroactively applied. Such an order must be understood to
require that should new selection procedures be negotiated,
employees who would not then be selected for transfer, be restored
to their former positions.
/12/ The background and results of this dispute between FAA and one
of its union is outlined in PATCO v. Federal Labor Relations Authority,
685 F.2d 547, 551-552 (CADC, 6/11/82).
/13/ Superficially, at least, such agency conduct seems to qualify as
an unfair labor practice, in violation of Section 7116(a)(1) of the
Statute. While the complaint alleges a violation of this section,
neither it nor the charge filed by the Union indicates that this conduct
was put in issue. Accordingly, the Director's letter is considered
herein only in connection with the appropriate remedy to be ordered.
/14/ The statutory burden of proof. See 5 U.S.C. 7118(a)(7).