[ v19 p472 ]
19:0472(61)CA
The decision of the Authority follows:
19 FLRA No. 61
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
Charging Party
Case Nos. 79-CA-30323
9-CA-30548
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record, including the stipulation of
facts, accompanying exhibits, and contentions of the parties, the
Authority finds:
The consolidated amended complaint alleges that the Department of
Transportation, Federal Aviation Administration (the Respondent or FAA)
violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) /1/ by (1) unilaterally
reorganizing certain of its field structures and grounds wage grade work
force into a Field Maintenance Party (FMP), and (2) changing the job
duties of certain unit employees, without providing notice to the
designated representative of the Professional Airways Systems
Specialists (PASS), and affording PASS the opportunity to negotiate over
the impact and implementation of the changes noted above.
On December 31, 1981, PASS was certified as the exclusive
representative of a nationwide unit of the Respondent's employees,
including the employees involved herein; this nationwide unit was
previously represented by the Federal Aviation Science and Technological
Association (FASTA). /2/ Prior to PASS' initial certification, the
Respondent and FASTA had negotiated an agreement which became effective
in 1977 for a two-year period and which was automatically renewed
thereafter following the agreement's expiration date.
The stipulated record reveals that by letter dated February 2, 1982,
Howard Johannssen, PASS' National President, wrote to the FAA
Administrator and informed him that "unless specific notice to the
contrary (was) given, the only representative authorized to negotiate on
behalf of PASS" or to receive notice with respect to five items listed
therein was himself. Among the items listed therein were: (1) the
closing, consolidation or relocation of FAA facilities, and (2) any
reorganization of the FAA or its subdivisions. On February 8, 1982, the
Respondent, by its agent Curran, responded to Johannssen's letter and
informed him that it concurred with the designation to the extent that
it was consistent with the expired FASTA agreement.
Later, on May 28, 1982, Johannssen sent another letter to the
Respondent's Administrator wherein he stated, in part, that he had
received "persistent reports of local and regional FAA management
proposals to make changes in conditions of employment within the unit,"
and further stated that "any prior bargaining authority given to any
PASS representative other than (himself was) . . . revoked with respect
to the national unit," and that he should be "notified of all proposed
changes in conditions of employment of bargaining unit members . . . "
Subsequently, noting PASS' letter, the Respondent by letters dated June
9 and 18, 1982, informed its managers, among other things, to adhere to
the provisions of the FASTA agreement which in its view required that
notice of local changes in working conditions be given at the local
level, and that it was only required to consult over such changes.
In November 1982, the Respondent's position classification specialist
identified classification problems relative to certain positions in the
Northwest Mountain Region, and thereafter conducted a classification
review. This review resulted in new position descriptions for General
Maintenance Mechanic, WG-4701-10 (changed to WG-4749-9) and Engineering
Equipment Operator, WG-5716-10/5716-11 (changed to WG-5716-11).
The Northwest Mountain Region consists of FAA facilities located in
the states of: Washington, Oregon, Idaho, Montana, Utah and Colorado.
By letter dated January 7, 1983, the Respondent's Airway Facilities
Division Manager, Fredrick M. Issac, notified Larry Sump, PASS' Regional
Vice-President for the Western Region, of FAA's decision to reorganize
the existing field structures and grounds wage grade work force in the
areas of Washington, Oregon and Idaho into a Field Maintenance Party
(FMP) unit headquartered in Vancouver, Washington. On or about January
31, 1983, Sump, in a telephone conversation with Fred Bell, the
Respondent's agent, demanded to negotiate on the matter. On or about
February 25, 1983, Bell and the Respondent's Labor Relations Manager met
with PASS' Regional Representatives Sump and Bobby Mullins. At this
meeting, the parties discussed the establishment of the FMP, and the
regional representatives were informed of the position classifications
mentioned above; Sump reiterated PASS' position that notice to the
Union and negotiations concerning such changes had to be made at PASS'
national level of exclusive recognition. Bell stated that management
would not negotiate but would consult in accordance with its national
policy.
Sometime before the aforementioned meeting, the Respondent had
notified four employees assigned to the Denver FMP and sixteen employees
assigned to its facilities in Washington, Oregon and Idaho of the
establishment of the FMP through transfer of function. The Respondent
did not notify Johannssen, PASS' National President, of this change or
of the position reclassifications.
By letter dated March 21, 1983, Johannssen wrote to Isaac concerning
the FMP unit, demanded bargaining on the matter, and further requested
the Respondent to refrain from implementing the change pending
completion of negotiations. The Respondent did not reply to this
letter. Instead, by letter dated April 8, 1983, the Manager of the
Respondent's Maintenance Operations Branch wrote to Sump concerning
Johannssen's letter and essentially advised him that the matter relating
to the FMP unit had been addressed through its January 7 letter to him.
On April 18, 1983, reclassification notices were issued to certain
employees advising them that they would be reclassified to General
Maintenance Mechanic WG-4749-9. As a result of this action, which
became effective on May 1, 1983, six employees were downgraded and
placed on grade retention for two years. Further, the new position
description contained duties not enumerated in the previous one and
included an increase in the employees' travel requirement. With respect
to the Engineering Equipment Operator position mentioned above, the new
position description contained additional requirements. Approximately
four employees were reassigned and approximately seven employees were
promoted to the new position. These assignments were effected at
various times during and after April 1983.
On May 15, 1983, the Vancouver FMP unit was established. As a
result, three General Maintenance Mechanics from Eugene, Oregon, Klamath
Falls, Oregon and Seattle, Washington were relocated to Vancouver,
Washington, and two such employees and one Engineering Equipment
Mechanic retired in lieu of relocation. Further, none of the
Engineering Equipment Mechanic or Equipment Operator positions involved
herein were physically relocated to new duty stations; however, three
employees occupying such positions were organizationally reassigned to
the Vancouver FMP and five to Salt Lake City. Whether or not physically
located at the Vancouver FMP, employees now receive all assignments
from, and are directly supervised by foremen in their respective FMPs,
as opposed to the sector office personnel who previously supervised
them. Assignments to the FMP occurred during or after April 1983.
Finally, the establishment of the FMP herein has reduced the
Respondent's need to contract for structures and grounds projects and
has resulted in field structures and grounds work being accomplished in
a more efficient and safe manner.
The Respondent asserts that its bargaining obligation on the
establishment of the FMP herein was limited to consultation by virtue of
provisions in the expired FASTA agreement, which, in its view,
constitute a clear and unequivocal waiver of FASTA's right under the
Statute to negotiate over the subject change in working conditions, and
that such waiver is binding on PASS. Further, with respect to the
position reclassifications herein and the establishment of the FMP, it
contends that, under the expired FASTA agreement, it was required to,
and did, notify PASS at the appropriate level prior to implementing the
subject changes; and that PASS was given an opportunity to consult on
the FMP prior to its establishment.
In Federal Aviation Administration, Northwest Mountain Region,
Seattle, Washington and Federal Aviation Administration, Washington,
D.C., 14 FLRA 644 (1984), a case involving the FAA, PASS and the same
FASTA agreement as involved herein, the Authority determined that the
waiver of bargaining rights contained in the FASTA agreement constituted
a permissive subject of bargaining which was binding during the life of
the agreement, but was terminable by either party once the agreement
expired. In that case, the Authority found that management could not
insist upon the continuation of the waiver provision contained in that
expired agreement when PASS indicated it no longer wished to be bound by
such provision but instead sought to exercise its bargaining rights.
See also Federal Aviation Administration, Washington, D.C., 17 FLRA No.
26 (1984), petition for review filed sub nom. Professional Airways
Systems Specialists, MEBA, AFL-CIO v. FLRA, No. 85-1284 (D.C. Cir. May
8, 1985).
The instant case involves the same parties and the identical
assertion by PASS of its right to negotiate rather than consult about
the changes herein. Accordingly, and for the reasons more fully set
forth in the previously cited cases, the Authority finds that the
Respondent was no longer free to insist upon the practice contained in
the expired FASTA agreement so as to preclude bargaining over the
establishment of the FMP herein. Also, based on the rationale contained
in Department of Transportation, Federal Aviation Administration, San
Diego, California, 15 FLRA No. 86 (1984), the Authority finds that the
Respondent was no longer free to insist upon the practice contained in
the expired FASTA agreement with respect to notice to PASS concerning
the position reclassifications as well as the establishment of the FMP
where the record reflects that PASS expressed its statutory right to
designate its own representative by notifying the Respondent of PASS'
representative designated to receive notice and to bargain on the
matters herein. In this regard, the record further reveals that the
Respondent failed to provide prior notice to PASS' designated
representative, but instead insisted in both instances on providing
notice to PASS at the Regional level pursuant to the FASTA agreement.
Further, with respect to the parties' obligation to bargain on the
matters herein, the Authority has held that where an agency in
exercising a management right under section 7106 of the Statute decides
to change a condition of employment of unit employees, there exists a
statutory duty to negotiate concerning the impact of such change if such
change results in more than a de minimis impact upon unit employees or
such impact is reasonably foreseeable. U.S. Government Printing Office,
13 FLRA 203 (1983) and Department of Health and Human Services, Social
Security Administration, Chicago Region, 15 FLRA No. 174 (1984). In the
instant case the Respondent's decision to reorganize its field
structures and grounds wage grade work force in a three state area into
a FMP unit headquartered at Vancouver resulted in the relocation and
reassignment of certain employees, while others retired rather than
relocate; and its decision to reclassify the positions herein resulted
in downgrades, reassignments, and promotions, as well as new and/or
additional job duties. In the Authority's view, such changes resulted
in more than a de minimis impact upon unit employees, and thus the
Respondent was obligated to bargain over the procedures and appropriate
arrangements for employees adversely affected thereby. /3/ Therefore,
the Authority finds that the Respondent's failure to notify Johannssen,
PASS' designated representative, and afford PASS an opportunity to
negotiate concerning procedures to be observed in implementing the
Vancouver FMP unit and concerning appropriate arrangements for unit
employees adversely affected thereby prior to its implementation
constitutes a violation of section 7116(a)(1) and (5) of the Statute;
and that its failure to notify Johannssen, and afford PASS an
opportunity to negotiate in a similar manner concerning the position
reclassifications herein also constitutes a violation of section
7116(a)(1) and (5) of the Statute.
To remedy the unfair labor practice conduct found herein, the General
Counsel and PASS request a status quo ante order which the Respondent
opposes. In the Authority's view, such a remedy is not warranted.
Thus, balancing the nature and circumstances of the violation against
the degree of disruption in government operations that would be caused
by such a remedy, and taking into consideration the various factors set
forth in Federal Correctional Institution, 8 FLRA 604 (1982), the
Authority concludes with respect to both of the changes herein that such
remedy would not effectuate the purposes and policies of the Statute.
In this regard, the Authority notes that the Respondent organized the
existing field structures and grounds wage grade work force in the
states of Washington, Oregon and Idaho into a FMP unit headquartered at
Vancouver, Washington; and that certain employees have physically
relocated to this site while others have been reassigned
organizationally to this unit and/or Salt Lake City. Further, the
Authority notes in particular that the stipulated record reveals that
the changes herein were instituted for the purpose of enhancing the
efficiency and effectiveness of work on facilities of the National
Airspace System; and that establishment of the FMP unit has enhanced
the safety of structures and provided a safer working environment for
employees. Therefore, in the Authority's view, a requirement to rescind
the organizational change herein and restore all conditions of
employment that were in effect prior to such reorganization would result
in substantial disruption of the Respondent's operations and likely
interfere with the Respondent's efforts to improve the national air
traffic control system. Similarly, the Authority finds that an order
requiring the Respondent to rescind the new position descriptions herein
and restore the conditions existing prior thereto would also create a
disruption in the Respondent's effort to improve its operations.
Further, in the Authority's view, an order herein which would require
the Respondent to give priority consideration to relocated 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 PASS to the extent consonant with law and regulation
concerning the procedures and appropriate arrangements for unit
employees adversely affected by the reorganization and the
reclassification of the position descriptions herein, would best
effectuate the purposes and policies of the Statute. See, e.g., Federal
Aviation Administration, Washington, D.C., 17 FLRA No. 26, supra.
With regard to PASS' request that the remedy be nationwide in scope,
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 mistaken
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; Department of Transportation, Federal
Aviation Administration, Los Angeles, California, 15 FLRA No. 21 (1984);
Federal Aviation Administration, Washington, D.C., supra; and United
States Department of Transportation, Federal Aviation Administration, 18
FLRA No. 8 (1985). The Authority notes, moreover, that the unlawful
conduct in the instant case occurred prior to the issuance of the
Authority's decision in Federal Aviation Administration, Northwest
Mountain Region. As there is no indication that the FAA has refused to
abide by the Authority's decision in that case or in the other cited
cases, or that it will continue to engage in such unlawful conduct in
the future, the Authority finds no basis on which to order a different
posting requirement than that ordered herein.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the Department of
Transportation, Federal Aviation Administration shall:
1. Cease and desist from:
(a) Reorganizing certain of its work force into a Field Maintenance
Party, such as the Vancouver FMP, and issuing new position descriptions
to unit employees employed as General Maintenance Mechanics and
Engineering Equipment Operators, without first notifying the
Professional Airways Systems Specialists, the exclusive representative
of its employees, and affording such representative an opportunity to
negotiate on the procedures to be observed in the implementation of the
reorganization and the new position descriptions and concerning
appropriate arrangements for employees adversely affected thereby.
(b) Failing to provide prior notice of any planned reorganization and
any change in unit employees' position descriptions 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 relocated 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 reorganization of certain of its work force into the
Vancouver Field Maintenance Party and the new position descriptions and
concerning appropriate arrangements for employees adversely affected
thereby.
(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 a designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(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., July 31, 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 reorganize certain of our work force into a Field
Maintenance Party, such as the Vancouver FMP, nor issue new position
descriptions to unit employees employed as a General Maintenance
Mechanics and Engineering Equipment Operators, 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 the implementation of the
reorganization and the new position descriptions and concerning
appropriate arrangements for employees adversely affected thereby. WE
WILL NOT fail to provide prior notice of any planned reorganization and
any change in unit employees' position descriptions 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 relocated 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 reorganization of certain of our work force into the
Vancouver Field Maintenance Party and the new position descriptions, and
concerning appropriate arrangements for employees adversely affected
thereby.
(Activity)
Dated: . . . By: (Signature) (Title) This Notice must remain posted
for 60 consecutive days from the date of posting, and must not be
altered, defaced, or covered by any other material. If employees have
any questions concerning this Notice or compliance with its provisions,
they may communicate directly with the Regional Director, Region IX, the
Federal Labor Relations Authority, whose address is: 530 Bush Street,
Room 542, San Francisco, California 94108 and whose telephone number is:
(415) 556-8106.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ Subsequently, on April 14, 1983, PASS was certified for a larger
consolidated unit of the Respondent's employees.
/3/ With respect to the Respondent's duty to bargain over the impact
and implementation of classification actions, See March Air Force Base,
Riverside, California, 13 FLRA 255 (1983).