[ v20 p486 ]
20:0486(54)CA
The decision of the Authority follows:
20 FLRA No. 54
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, a/w MARINE ENGINEERS
BENEFICIAL ASSOCIATION, AFL-CIO
Charging Party
Case Nos. 4-CA-30359, 4-CA-30419, 4-CA-30587
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 in this case, including the
stipulation of facts and accompanying exhibits, and the contentions of
the parties, the Authority finds:
The consolidated complaint in Case No. 4-CA-30359 alleges that the
Department of Transportation, Federal Aviation Administration,
Washington, D.C. (Respondent), violated section 7116(a)(1) and (5) of
the Statute when it unilaterally discontinued, on or about December 9,
1982, /1/ its practice whereby employees at the Chattanooga, Tennessee,
Sector Field Office (SFO) who were required to work emergency overtime
were permitted to drive government owned vehicles between home and work
if the employees commuted to work in a carpool. In Case No. 4-CA-30419,
if the the consolidated complaint alleges that the Respondent violated
section 7116(a)(1) and (5) of the Statute when, on April 3, 1983,
notwithstanding the designation of Howard Johannssen, its President, as
the Union's sole representative for the purpose of collective bargaining
and his requests that the Respondent bargain with him, Respondent
reorganized its Memphis Air Route Traffic Control Center (ARTCC) without
giving notice to or bargaining with Johannssen concerning the impact and
implementation of the reorganization. The complaint further alleges
that the Respondent violated section 7116(a)(1), (5) and (8) of the
Statute when the Respondent failed to provide Johannssen with
information he requested pursuant to section 7114(b)(4) of the Statute.
In Case No. 4-CA-30587, the complaint alleges that the Respondent
violated section 7116(a)(1) and (5) of the Statute when, on June 19,
1983 and May 1, 1983, Respondent implemented the reorganization of its
Atlanta and Jacksonville ARTCC facilities, respectively, without notice
to the designated representative of the exclusive representative,
Johannssen, and without providing Johannssen an opportunity to bargain
concerning the impact and implementation of the reorganizations. /2/
Since December 31, 1981, the Professional Airways Systems
Specialists, a/w Marine Engineers Beneficial Association, AFL-CIO (Union
or Charging Party), has been the exclusive representative of employees
in an appropriate nationwide unit which includes, inter alia, employees
of the Atlanta, Jacksonville, Chattanooga, and Memphis facilities of the
Respondent. Prior to the Union's certification, in December 1981, the
employees had been represented by the Federal Aviation Science and
Technological Association (FASTA).
While the Respondent initially contended that its bargaining
obligation concerning the subject changes was limited by virtue of the
provisions in the FASTA agreement, it subsequently acknowledged in its
brief to the Authority the applicability of certain Authority precedent
which issued after the events alleged herein and conceded that it was
obligated to notify the Charging Party's designated representative,
Johannssen, and, upon request, negotiate concerning the procedures for
implementing such changes and appropriate arrangements for employees
adversely affected thereby. Thus, Respondent conceded the violations of
section 7116(a)(1) and (5) of the Statute alleged in the complaint with
regard to its failure to negotiate concerning procedures and appropriate
arrangements for employees adversely affected by such changes. Federal
Aviation Administration, Northwest Mountain Region, Seattle, Washington,
and Federal Aviation Administration, Washington, D.C., 14 FLRA
644(1984); Department of Transportation, Federal Aviation
Administration, Los Angeles, California, 15 FLRA No. 21(1984);
Department of Transportation, Federal Aviation Administration,
Washington, D.C. and its Chicago Airways Facilities Sector, 16 FLRA No.
71(1984). However, the Respondent never conceded that it failed to
provide information requested by the Union pursuant to section
7114(b)(4) of the Statute. Respondent's brief was limited to addressing
the issue of the appropriate remedy for its refusal to bargain
concerning procedures and appropriate arrangements regarding the
unilateral changes alleged in the complaint.
As previously held by the Authority, where management exercises a
reserved management right to change conditions of employment, there is
nonetheless a duty to bargain consistent with section 7106(b)(2) and (3)
of the Statute /3/ over the procedures that management will follow in
exercising such rights and appropriate arrangements for employees who
may be adversely affected thereby. See Internal Revenue Service, 17
FLRA No. 103(1985) appeal docketed, sub nom. National Treasury Employees
Union v. FLRA, No. 85-1361 (D.C. Cir. June 14, 1985) and U.S. Customs
Service, 18 FLRA No. 34(1985). Thus, noting particularly that the
Respondent does not contest the existence of a bargaining obligation
herein, the Authority concludes that the Respondent's failure to afford
the Union an opportunity to negotiate concerning procedures and
appropriate arrangements for employees adversely affected by the above
unilateral changes, through its designated representative, constitutes a
violation of section 7116(a)(1) and (5) of the Statute, as alleged in
the complaint. /4/
With regard to the allegation in Case No. 4-CA-30419 that the
Respondent failed to provide information requested by Johannssen, it is
noted that the requested information was provided to Robinson, the
Union's local representative, and that the request itself did not
specify that the information be provided to Johannssen exclusively.
Thus, noting the fact that the request was for information to be
provided to the Union, the failure of the Union to timely object to the
furnishing of the information to Robinson, and no showing or assertion
that the Union was in any way prejudiced thereby, the Authority
concludes that the Respondent complied with the Union's request within
the meaning of section 7114(b)(4) of the Statute in the circumstances of
this case. /5/ Accordingly, the Authority concludes that the General
Counsel has not met the burden of proving that an unfair labor practice
occurred in this regard, and this aspect of the complaint in Case No.
4-CA-30419 is dismissed.
With regard to remedy, the Charging Party and Counsel for the General
Counsel request a status quo ante remedy while the Respondent opposes
such a remedy. Based on the facts set forth in the stipulated record,
the Authority concludes that a status quo ante remedy is not warranted.
The Authority concludes, after taking into consideration the factors set
forth in Federal Correctional Institution, 8 FLRA 604(1982), that an
order requiring the Respondent to bargain upon request about procedures
to be observed in implementing the changes as well as on appropriate
arrangements for employees adversely affected by the changes will best
effectuate the purposes and policies of the Statute. In this
connection, the Authority notes the extent of the changes caused by the
reorganizations involved herein and concludes that a status quo ante
remedy would seriously disrupt the accomplishment of the Respondent's
mission and the efficiency of its operations. It is noted that the
reorganizations of the Memphis, Atlanta, and Jacksonville facilities
occurred as a result of budgetary restrictions and staffing reductions,
and that as a result, the Respondent restructured its crews, realigned
its staff, abolished positions, and retrained and reassigned personnel
to other duties. Finally, it is noted that the Respondent's termination
of its past practice regarding the use of government vehicles by
employees was based on a contention in a memorandum to employees at its
Chattanooga Sector Field Office that Federal law specifically prohibits
the use of government vehicles for traveling between home and work,
including those cases where an employee is carpooling to work and has to
continue his workday on emergency overtime. As the General Counsel and
Charging Party did not contest the Respondent's contention of illegality
in their briefs, the Authority finds it inappropriate under the
circumstances to order a status quo ante remedy reestablishing such a
practice.
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Department of Transportation, Federal Aviation Administration,
Washington, D.C., shall:
1. Cease and desist from:
(a) Reorganizing its Air Route Traffic Control Centers (ARTCCs)
without first notifying the representative designated by the
Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive
representative of its employees, and affording the Union the opportunity
to request negotiations concerning the procedures to be observed in
implementing such changes as well as on appropriate arrangements for
employees adversely affected by such changes.
(b) Refusing to provide an opportunity for the designated
representative of the Professional Airways Systems Specialists, MEBA,
AFL-CIO, the employees' exclusive representative, to bargain, to the
extent consonant with law and regulation, with respect to procedures and
appropriate arrangements for employees adversely affected by a change in
the practice at its Chattanooga Sector Field Office (SFO) of permitting
those employees who were required to work emergency overtime to utilize
government vehicles for transportation from the worksite to their
residences.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the designated representative of the Professional
Airways Systems Specialists, MEBA, AFL-CIO, the employees' exclusive
representative, negotiate concerning the procedures to observed in any
future reorganization of its ARTCC facilities, and concerning
appropriate arrangements for employees adversely affected by such
reorganization.
(b) Upon request by the designated representative of the Professional
Airways Systems Specialists, MEBA, AFL-CIO, the employees' exclusive
representative, bargain to the extent consonant with law and regulation
concerning procedures and appropriate arrangements for employees
adversely affected by a change in the practice at its Chattanooga SFO of
permitting those employees who were required to work emergency overtime
to utilize government vehicles for transportation from the worksite to
their residences.
(c) Post at its Chattanooga SFO and Memphis, Jacksonville and Atlanta
ARTCCs copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Such forms shall be signed by
Respondent's Administrator, 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 IV, 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.
IT IS FURTHER ORDERED that the portion of the consolidated complaint
in Case No. 4-CA-30419, alleging a failure to comply with section
7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) and
(8) of the Statute, be, and it hereby is, dismissed.
Issued, Washington, D.C., October 15, 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 our Air Route Traffic Control Centers (ARTCCs)
without first notifying the representative designated by the
Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive
representative of our employees, and affording the Union the opportunity
to request negotiations concerning the procedures to be observed in
implementing such changes as well as on appropriate arrangements for
employees adversely affected by such changes.
WE WILL NOT refuse to provide the designated representative of the
Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive
representative of our employees, with an opportunity to bargain, to the
extent consonant with law and regulation, with respect to the procedures
to be observed in implementing the change as well as on appropriate
arrangements for employees adversely affected by the change in our
practice at the Chattanooga Sector Field Office of permitting employees
to utilize government vehicles for transportation from the worksite to
their residences.
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
Statute.
WE WILL, upon request by the designated representative of the
Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive
representative of our employees, negotiate concerning the procedures to
observed in any future reorganization of our ARTCC facilities, and
concerning appropriate arrangements for employees adversely affected by
such reorganization.
WE WILL, upon request by the designated representative of the
Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive
representative of our employees, bargain, to the extent consonant with
law and regulation, concerning the procedures to be observed as well as
on appropriate arrangements for employees who were required to work
emergency overtime and who were adversely affected by our decision to
change the practice at our Chattanooga Sector Field Office of permitting
employees to utilize government vehicles for transportation from the
worksite their residences.
(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 IV, Federal Labor Relations Authority, whose address
is: Suite 501, North Wing, 1776 Peachtree Street, N.W., Atlanta,
Georgia 30309 and whose telephone number is: (404) 881-2324.
--------------- FOOTNOTES$ ---------------
/1/ December 9, 1982 is the date stipulated by the parties as the
correct date of the change. The Complaint and Consolidated Complaint
inadvertently state this date as being December 9, 1983.
/2/ Section 7116(a)(1), (5) and (8) of the Statute 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;
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
Section 7114(b)(4) of the Statute provides:
. . . .
Sec. 7114. Representation rights and duties
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
* * * *
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data--
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining(.)
/3/ Section 7106(b)(2) and (3) provides:
Sec. 7106. Management rights
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
* * * *
(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected
by the exercise of any authority under this section by such
management officials.
/4/ See Department of Transportation, FAA, San Diego, California,
supra and Federal Aviation Administration, Washington, D.C., 20 FLRA No.
33(1985).
/5/ See generally Department of the Navy, Pearl Harbor Naval
Shipyard, Pearl Harbor, Hawaii, 14 FLRA 564 (1984).