[ v19 p893 ]
19:0893(106)CA
The decision of the Authority follows:
19 FLRA No. 106
UNITED STATES DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
Charging Party
Case Nos. 6-CA-30230
6-CA-30234
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, accompanying exhibits, and the parties'
contentions, the Authority finds:
The consolidated complaint alleges that the Respondent bypassed the
exclusive representative in violation of section 7116(a)(1) and (5) of
the Federal Service Labor-Management Relations Statute (the Statute),
when it solicited employees' views with regard to different proposed
changes in conditions of employment in a memo dated February 1, 1983,
and at a meeting conducted March 31, 1983. /1/ The consolidated
complaint also alleges that the Respondent conducted a formal discussion
within the meaning of section 7114(a)(2)(A) of the Statute /2/ on March
31, 1983, at which it failed to provide the exclusive representative
with an opportunity to be represented in violation of section 7116(a)(1)
and (8) of the Statute. /3/
On February 1, 1983, Kenneth Glowka, the Manager of a Radar Unit at
the San Antonio Airway Facilities Sector Office, placed a hand written
memo on the read-and-initial bulletin board which suggested the
possibility of doing away with the evening shift on weekends and asked
to know how the eight Electronics Technicians under his supervision felt
about this. It provided a space for each employee to initial "for,"
"against," or "don't care." Six of the eight technicians initialed the
memo.
On March 31, 1983, Glowka conducted a mandatory meeting in his office
with the five Radar Unit Electronics Technicians under his supervision
who were on duty, where he covered a specific agenda which involved 32
items. During the meeting, Glowka stated that he was thinking about
having an early shift in the morning and an early shift in the evening,
but only if someone was available to stay until midnight. Glowka stated
that he would get opinions from everybody as to their thoughts on his
proposal. After the meeting, he placed a memorandum discussing the 32
items covered on the read-and-initial bulletin board for the three
Electronics Technicians under his supervision who were not on duty that
day. Among the 32 items placed on the bulletin board was one soliciting
the bargaining unit employees' opinions regarding the change in shift
hours he discussed at the meeting. The Union representative, Dan
Davila, who does not work under Glowka's supervision, was informed by
Glowka, prior to the March 31 meeting, of his intent to hold a Unit
meeting, but Davila did not attend.
Turning first to the alleged bypass allegations contained in the
consolidated complaint, the Authority concludes that the Respondent
violated section 7116(a)(1) and (5) by posting a February 1 memorandum
which directly solicited the opinions of Radar Unit employees concerning
a proposed change in conditions of employment by eliminating the evening
shift on weekends; and by soliciting the opinions of unit employees at
a meeting held March 31, 1983, and in a posted follow-up memorandum
thereafter, concerning proposed changes in shift hours contingent upon
the availability of someone to work until midnight. The Authority notes
particularly, in this regard, that management was not merely attempting
to gather information or opinions concerning its operations but directly
sought the opinions of these bargaining unit employees as to proposed
changes in their conditions of employment. In the Authority's view,
such conduct constitutes an unlawful bypass of the exclusive
representative since it concerns immediately contemplated changes in
conditions of employment affecting unit employees, and was an attempt by
management to negotiate or deal directly with unit employees concerning
such matters. /4/
However, the Authority concludes that the Respondent did not fail to
provide the Union with an opportunity to be represented at a formal
discussion as alleged in the consolidated complaint. Thus, the
stipulated record reflects that the Union representative was provided
with an opportunity to be represented at the March 31 meeting when he
was informed of the meeting by Glowka prior thereto and chose not to
attend. /5/ Therefore, without passing on whether or not the March 31
meeting constituted a formal discussion within the meaning of section
7114(a)(2)(A) of the Statute, the Authority concludes that the
Respondent's conduct, in this regard, was not violative of section
7116(a)(1) and (8). /6/
ORDER /7/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
United States Department of Transportation, Federal Aviation
Administration, shall:
1. Cease and desist from:
(a) Bypassing the Professional Airways Systems Specialists, the
exclusive representative of its employees, and dealing directly with
such employees by soliciting their opinions concerning personnel
policies, practices and matters affecting their working conditions.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Post at all facilities of the San Antonio Airway Facilities
Sector, wherein unit employees are located, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by a
responsible official of the Department of Transportation, Federal
Aviation Administration, and shall be posted and maintained by such
official 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.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VI, 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., August 22, 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 bypass the Professional Airways Systems Specialists, the
exclusive representative of our employees, and deal directly with unit
employees by soliciting unit employees' opinions concerning personnel
policies, practices and matters affecting their working conditions. WE
WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their rights assured by the
Statute.
(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 any of its
provisions, they may communicate directly with the Regional Director,
Region VI, Federal Labor Relations Authority whose address is: Federal
Office Building, 525 Griffin Street, Suite 925, Dallas, TX 75202, and
whose telephone number is: (214) 767-4996.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) 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(.)
/2/ Section 7114(a)(2)(A) of the Statute provides:
Sec. 7114. Representation rights and duties
. . . .
(a)(2) An exclusive representative of an appropriate unit in an
agency shall be given the opportunity to be represented at--
(A) any formal discussion between one or more representatives
of the agency and one or more employees in the unit or their
representatives concerning any grievance or any personnel policy
or practices or other general condition of employment(.)
/3/ Section 7116(a)(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--
. . . .
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/4/ See, e.g., United States Department of the Treasury, Bureau of
Alcohol, Tobacco and Firearms, Washington, D.C. and its Central Region,
16 FLRA No. 74 (1984); Department of Transportation, Federal Aviation
Administration, Los Angeles, California, 15 FLRA No. 21 (1984); and
Social Security Administration, Baltimore, Maryland, 9 FLRA 909 (1982).
Compare Internal Revenue Service (District, Region, National Office
Units), 19 FLRA No. 48 (1985), wherein the Authority concluded that
management's attempt to gather information through questionnaires from
unit employees to ensure the effectiveness and efficiency of its
operations without attempting to deal or negotiate directly with unit
employees concerning their conditions of employment did not constitute
an unlawful bypass; and U.S. Department of the Air Force, 47th Air Base
Group (ATC), Laughlin Air Force Base, Texas, 4 FLRA 469 (1980), wherein
the Authority adopted the Judge's conclusion that management's
discussion with unit employees did not constitute an unlawful bypass of
the exclusive representative because the conversations were conducted
solely to disseminate and gather necessary personal information and did
not concern proposed changes in conditions of employment affecting
employees in the unit.
/5/ The General Counsel and the Union allege that notice to the Union
representative did not provide sufficient specificity as to the subject
matter of the meeting. However, the stipulated record contains no
evidence to support such an assertion. While the record indicates that
the Union representative was not advised of the specific topics to be
discussed at the meeting, there is no evidence that he sought or was
intentionally denied such information.
/6/ See U.S. Department of the Air Force, 47th Air Base Group (ATC),
Laughlin Air Force Base, Texas, 4 FLRA 469 (1980).
/7/ Counsel for PASS contended that an extraordinary remedy including
a cease and desist order to be formally read at meetings at all
facilities is required to insure that the Respondent will comply with
its obligations under the Statute. However, the Authority can find no
relationship between the unlawful conduct found in this case and the
unlawful conduct found in the cases cited by PASS. Noting additionally
that the General Counsel did not request such an extraordinary remedy,
the Authority concludes that a remedial posting limited to the San
Antonio Airway Facilities Sector is sufficient to remedy the unlawful
conduct herein.