[ v20 p548 ]
20:0548(68)CA
The decision of the Authority follows:
20 FLRA No. 68
UNITED STATES DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION, WASHINGTON, D.C.;
FEDERAL AVIATION ADMINISTRATION, EASTERN REGION
JAMAICA, NEW YORK; AND FEDERAL AVIATION
ADMINISTRATION, AIRWAYS FACILITIES SECTOR 810
ALBANY, NEW YORK
Respondent
and
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
Charging Party
Case No. 1-CA-30218
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the 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 Charging Party and the General
Counsel filed exceptions to the Judge's Decision, and the Respondent
filed an opposition to the General Counsel's exceptions.
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, and noting that the only issue
presented concerned whether the Charging Party was bound by a waiver
which the Authority has addressed in a number of published decisions
issued subsequent to the Judge's decision herein, /1/ the Authority
adopts the Judge's findings and conclusions, and his recommended Order
/2/ as modified.
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 United States Department
of Transportation, Federal Aviation Administration, Washington, D.C.;
Federal Aviation Administration, Eastern Region, Jamaica, New York; and
Federal Aviation Administration, Airways Facilities Sector 810, Albany,
New York, shall:
1. Cease and desist from:
(a) Implementing any reduction in force at the Federal Aviation
Administration, Airways Facilities Sector 810, Albany, New York,
affecting employees represented exclusively by the Professional
Airways Systems Specialists, the employees' exclusive
representative, without first providing appropriate advance notice
to the Professional Airways Systems Specialists, and affording it
an opportunity to bargain with respect to procedures and
appropriate arrangements for employees adversely affected by such
reduction in force.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request rescind the July 23, 1983, reduction in force
at the Federal Aviation Administration, Airways Facilities Sector
810, Albany, New York, and reinstate Mr. Andrew Panek to his
position as a Maintenance Mechanic WG-4749-11.
(b) Notify the appropriate representative of the Professional
Airways Systems Specialists of any intended reduction in force
affecting employees represented exclusively by the Professional
Airways Systems Specialists at the Federal Aviation
Administration, Airways Facilities Sector 810, Albany, New York,
and afford such representative an opportunity to request
bargaining with respect to procedures and appropriate arrangements
for employees adversely affected by such reduction in force.
(c) Post at its facilities at the Federal Aviation
Administration, Washington, D.C.; Federal Aviation Administration,
Eastern Region, Jamaica, New York; and Federal Aviation
Administration, Airways Facilities Sector 810, Albany, New York,
copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms,
they shall be signed by the Administrator of the Federal Aviation
Administration, 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 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 I, 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., October 29, 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 implement any reduction in force affecting employees
represented exclusively by the Professional Airways Systems Specialists
at the Federal Aviation Administration, Airways Facilities Sector 810,
Albany, New York, without first providing appropriate notice to the
Professional Airways Systems Specialists, the employees' exclusive
representative, and affording such representative an opportunity to
bargain with respect to procedures and appropriate arrangements for
employees adversely affected by such reduction in force.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, rescind the July 23, 1983, reduction in force
at the Federal Aviation Administration, Airways Facilities Sector 810,
Albany, New York, and reinstate Mr. Andrew Panek to his position as a
Maintenance Mechanic WG-4749-11.
WE WILL notify the appropriate representative of the Professional
Airways Systems Specialists of any intended reduction in force affecting
employees represented exclusively by the Professional Airways Systems
Specialists at the Federal Aviation Administration, Airways Facilities
Sector 810, Albany, New York, and afford it an opportunity to request
bargaining with respect to procedures and appropriate arrangements for
employees adversely affected by such reduction in force.
(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 its provisions, they may communicate directly with the Regional
Director, Region I, Federal Labor Relations Authority, whose address is:
441 Stuart Street, 9th Floor, Boston, MA 02116, and whose telephone
number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 1-CA-30218
Scott Kallman, Esquire
For the Respondent
Marilyn Z. Roth, Esquire
For the General Counsel
Joseph E. Kolick, Jr., Esquire
For the Charging Party
Before: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter referred to as "the
Statute"), and the Rules and Regulations issued thereunder.
The complaint alleges that commencing on or about May 18, 1983, the
United States Department of Transportation, Federal Aviation
Administration (FAA), Washington, D.C.; FAA Eastern Region, Jamaica, New
York; and FAA Airways Facilities Sector 810, Albany, New York
(Respondent) committed unfair labor practices within the meaning of
Section 7116(a)(1) and (5) of the Statute by refusing to bargain in good
faith with the Professional Airways Systems Specialists (Charging Party,
PASS or Union). The specific conduct alleged to be violative of these
sections included:
(a) Changing conditions of employment on or about May 18, 1983,
by implementing a reduction in force in the Albany, New York
Airways Facilities Sector without providing prior notice to the
Union at the national level of recognition, and/or without
providing the Union at any level of recognition an opportunity to
negotiate over the impact and implementation of Respondent's
decision to effectuate the mentioned reduction in force.
(b) Refusing, on or about May 18, 1983, and thereafter, to
negotiate with Howard S. Johannssen, the Union representative
designated to receive notice of local changes in working
conditions, and/or refusing to negotiate with Howard S.
Johannssen, the Union representative designated to negotiate over
the impact and implementation of the reduction in force.
Counsel representing the Respondent relies primarily upon the
contention that the reduction in force and notice relating thereto were
effectuated by the Respondent in accordance with an expired collective
bargaining agreement negotiated in 1977 by the FAA and the Federal
Aviation Science and Technological Association (FASTA), a union which
represented the bargaining unit in question until certification of the
Charging Party on December 31, 1981. It was also contended that in the
absence of agreement to the contrary, or unless modified in a manner
consistent with the Statute, the 1977 FASTA agreement was, and still is,
fully binding upon the parties herein.
Since the FASTA agreement merely provided for consultation with FASTA
before implementing reduction in force procedures, Respondent takes the
position that a waiver of bargaining rights was binding upon the
Charging Party in the absence of a new collective bargaining agreement
restoring bargaining rights to the Charging Party.
Findings of Fact
Background
On December 31, 1981, the Charging Party was certified as the
exclusive representative of a nationwide unit of FAA employees in
Respondent's Airways Facilities Division (G.C. Exh. No. 12). Prior to
the certification, this bargaining unit, which included Respondent's
employees in the Albany Sector, was represented by FASTA. The FAA and
FASTA had negotiated a collective bargaining agreement which took effect
on December 1, 1977 (R. Exh. No. 1). The agreement provided, in
pertinent part, as follows:
ARTICLE 7 - RIGHTS AND RESPONSIBILITIES OF UNION
REPRESENTATIVES
Section 1. The Employer agrees to recognize the officers and
duly designated representatives of the Union as established by
this agreement.
* * * *
Section 3. In addition, the Union may designate one sector
representative at each airway facilities sector. The designation
shall be in writing. At the sector representative's option,
he/she may designate, in writing, an alternate to act for him/her
when he/she is absent. Only the sector representative, or in
his/her absence the designated alternate, may deal with the sector
manager and/or his/her designee. During any meeting where the
sector manager is accompanied by other management representatives,
the sector representative may be accompanied by his/her designated
alternate or other representatives so as to allow the Union the
same number of participants at the meeting.
* * * *
Section 10. The Union representatives specified in the above
Sections of this Article are the only individuals authorized to
represent the Union in dealings with FAA officials at the
respective levels specified in this Article.
* * * *
ARTICLE 48 - REDUCTION-IN-FORCE
Section 1. The Employer agrees to avoid or minimize a
reduction-in-force by taking such actions as restricting
recruitment and promotions, by meeting ceiling limitations through
normal attrition and by reassignment of qualified surplus
employees to vacant positions that management plans to fill.
Section 2. The Employer agrees to notify the Union when it is
determined that reduction-in-force actions will be necessary
within the unit. The Union will be notified as to the number of
positions to be reduced and the vacant positions that management
plans to fill. At this time, the Union may make its views and
recommendations known concerning the procedures management plans
to follow in the implementation of such reduction-in-force
actions.
Section 3. All reductions-in-force will be administered in
accordance with prescribed laws and Civil Service Commission
regulations.
Section 4. In the event of a reduction-in-force, the affected
employee and/or his/her Union representative will, upon request,
be provided access to master retention registers relative to
his/her involvement.
Section 5. The Union will be provided at the end of the
reduction-in-force with a list of all vacancies affected by and
filled during the reduction-in-force.
The Charging Party did not ratify or adopt the FASTA agreement
following certification on December 31, 1981. Instead, Mr. Howard E.
Johannssen, the Charging Party's President, informed then FAA
Administrator J. Lynn Helms in a February 2, 1982, letter, that Mr.
Johannssen alone had authority to negotiate on behalf of the Charging
Party with respect to reductions in force and other selected areas of
interest; that notice of proposed changes relating to these subjects
should be transmitted to Mr. Johannssen; and that Mr. Johannssen would
arrange for negotiations through any FAA official designated for this
purpose (C.P. Exh. No. 1). Mr. Johannssen withdrew the authority of
local representatives to engage in negotiations or conclude agreements
in the absence of specific authorization.
By letter dated February 8, 1982, Mr. E. V. Curran, FAA Director of
Labor Relations, informed Mr. Johannssen that the FAA refused to accede
to the demand, noting that the provisions of the 1977 agreement would
remain in effect (C.P. Exh. No. 2). /3/
By letter dated May 28, 1982, Mr. Johannssen effected a further
limitation on the bargaining authority of Union officials below the
level of the national negotiating team (C.P. Exh. No. 3). He stated:
For the sake of simplicity and clarity during contract
negotiations, any prior bargaining authority given to any PASS
representative other than the undersigned is hereby revoked with
respect to the national unit. Henceforth, I should be notified of
all proposed changes in conditions of employment of bargaining
unit members, and only the PASS national negotiating team shall be
authorized to bargain on behalf of PASS with respect to the
national unit.
A June 9, 1982 letter addressed to Mr. Johannssen by Mr. Curran
reiterated that the terms of the 1977 agreement were viable, and that
changes would be made "after appropriate dealings with a PASS
representative." (C.P. Exh. No. 4). By letter dated August 9, 1982, Mr.
Johannssen wrote to each PASS Local President and stated:
. . . I have informed Administrator Helms that any change
whatsoever that is negotiable under the law can only be
accomplished by me at the national level. (G.C. Exh. No. 3).
By letter dated December 2, 1982, Mr. Irving Schneider, the PASS
Sector Representative for the Albany Sector wrote to Albany Sector
Manager William T. Booker to remind him that Mr. Johannssen would be the
appropriate person to notify of proposed changes in the terms and
conditions of employment (G.C. Exh. No. 4).
Union Response to Information Concerning Proposed Reduction in Force
On April 21, 1983, Mr. Booker gave oral notice of a proposed Albany
Sector reduction in force to Mr. Schneider (Tr. 17-18). He also advised
that Mr. Andrew Panek, a WG-4749-11, bargaining unit employee stationed
in Albany would be involved, and that Mr. Schneider could discuss the
matter with Ms. Jan Henock, a staffing systems development specialists
in FAA's Eastern Regional Office (Tr. 18). Mr. Schneider advised Mr.
Booker to contact Mr. Johannssen concerning the proposed reduction in
force (Tr. 18). /4/ Mr. Schneider also advised Ms. Henock that she
should communicate with Mr. Johannssen concerning the issue (Tr. 18-19).
By letter dated April 25, 1983, Mr. Schneider wrote to Sector Manager
Booker to acknowledge that he had been advised of a possible reduction
in force affecting one Wage Grade 11 position in the Albany Sector. Mr.
Schneider requested pertinent information relating to the proposed
change, requested impact and implementation negotiations, and
specifically advised that Mr. Booker should respond directly to Mr.
Johannssen (G.C. Exh. No. 2). Mr. Schneider also phoned Mr. Johannssen
to apprise him of the matter (Tr. 20-21).
By letter dated May 16, 1983, Mr. Johannssen again wrote to
Administrator Helms to demand that he be notified of changes. He
stated:
Please be advised that, unless specific notice to the contrary
is given, I am the only PASS representative authorized to engage
in collective bargaining on behalf of this unit. . . . Once I
receive notice I will contact any designated official to arrange
for negotiations regarding such proposed change. (C.P. Exh. No.
5).
By letter dated May 17, 1983, Mr. Johannssen wrote to Mr. Booker to
restate the Charging Party's position that Mr. Johannssen be advised of
proposed changes in the Albany Sector. Specific reference was made to
the reduction in force mentioned by Mr. Booker in a conversation with
Mr. Schneider (G.C. Exh. No. 5). A similar letter was sent by Mr.
Johannssen to Mr. Joseph C. Winkler, Acting Director of Labor Relations,
FAA, Eastern Region (G.C. Exh. No. 6).
In the midst of Charging Party demands for notification at Mr.
Johannssen's level, and demands for impact and implementation bargaining
with respect to the proposed reduction in force in the Albany Sector,
Mr. Panek was advised by letter dated May 18, 1983, that he would be
released from his competitive level as a result of the reduction in
force (G.C. Exh. No. 7). /5/ He was given the option of transferring to
a similar position in Saranac Lake, New York in lieu of separation.
By letter dated May 23, 1983, Mr. Schneider wrote to Mr. Booker to
protest issuance of the May 18, 1983 letter to Mr. Panek (G.C. Exh. No.
8). He demanded recision of the May 18, 1983 letter to Mr. Panek, and
reiterated the Charging Party's bargaining request.
Mr. Booker replied by letter dated May 25, 1983, and noted that "the
Sector is not empowered to negotiate at the national level." (G.C. Exh.
No. 9). In an undated letter addressed to Mr. Johannssen by Mr. Joseph
Noonan, then FAA's Acting Director of Labor Relations, Mr. Noonan
replied to Mr. Johannssen's earlier May 16, 1983, demand for
notification, and indicated that the demand was being rejected (C.P.
Exh. No. 6). /6/ Through the Noonan letter the Respondent insisted that
FASTA agreement provisions relating to notice were fully applicable, and
that, "(t)he FAA, at the appropriate level, will continue to notify
PASS, at the appropriate level of any proposed changes in personnel
policies, practices and matters affecting working conditions."
Thereafter, on behalf of Mr. Johannssen, Mr. Schneider transmitted a
May 26, 1983 letter to Mr. Booker to renew the request for impact and
implementation bargaining relating to the Albany, New York reduction in
force, and to demand recision of the action affecting Mr. Panek's
position (G.C. Exh. No. 10). The record does not reflect a specific
reply to this letter; however, in a June 2, 1983 communication Mr.
Joseph C. Winkler, Acting Director of Labor Relations, FAA Eastern
Region, wrote to Mr. Johannssen in response to the latter's earlier May
17, 1983 letter to Mr. Booker (G.C. Exh. No. 11). Mr. Winkler advised
that the Respondent had complied with the provisions of the FASTA
agreement in implementing the Albany reduction in force. He stated that
the Charging Party was provided with an opportunity to consult on the
issue, but thereafter did not take advantage of the opportunity.
Mr. Panek elected to decline the offer to transfer, and on July 23,
1983, his employment was terminated (TR. 23-24). As a result of the
reduction in force employees remaining have had to assume a heavier
workload (Tr. 24-25).
Discussion and Conclusions
The basic issue posed in this case was recently addressed by the
Authority in two decisions involving the parties herein. Federal
Aviation Administration, Northwest Mountain Region, Seattle, Washington,
and Federal Aviation Administration, Washington, D.C., 14 FLRA No. 89
(1984), 14 FLRA 644; Department of Transportation, Federal Aviation
Administration, Los Angeles, California, 15 FLRA No. 21(1984), 15 FLRA
100. These cases address the issue of whether conditions of employment
contained in a negotiated agreement continue following the expiration of
that agreement. Both cases hold that where conditions of employment are
established pursuant to the parties' mutual obligation to negotiate over
mandatory subjects of bargaining, such conditions continue to the
maximum extent possible following the expiration of the negotiated
agreement. /7/ The Authority noted that such a result fosters stability
in Federal labor-management relations, an underlying purpose of the
Statute.
However, the Authority distinguished such matters from those which
relate to permissive subjects of bargaining, and concluded that in cases
falling within the permissive category, or those involving subjects
outside the required scope of bargaining under the Statute, either party
retains the right to unilaterally terminate such conditions upon the
expiration of the agreement. In the latter situation the Authority
explained that where parties have elected to bargain over permissive
subjects of bargaining and have reached agreement thereon, stability in
Federal labor management relations can be achieved during the life of
the parties' agreement while preserving each party's right to terminate
such matters upon the expiration of that agreement. It was further
noted that such a result was consistent with Congressional intent that
in any subsequent negotiations, either party may elect not to bargain
over permissive subjects.
In Department of Transportation, Federal Aviation Administration, Los
Angeles, California, supra, the Authority considered a FASTA agreement
provision involving watch schedule changes. A waiver provision
contained therein is nearly identical to the language creating the
waiver in Article 48 of the FASTA agreement, in that both articles
provide for the consideration of FASTA "views and recommendations" in
lieu of bargaining. Applying the principles formulated by the
Authority, it must be concluded that the waiver provision reflected in
Article 48, also involved a permissive subject of bargaining.
Accordingly, it terminated when the Union first indicated its intent to
no longer be bound by the FASTA agreement. The Respondent had no right
to insist upon enforcement of the waiver of bargaining rights reflected
in Article 48. Instead, the Respondent was under an obligation to
bargain over the impact and implementation of its decision to effectuate
a reduction in force in the Albany Sector. Respondent's refusal to do
so was violative of Section 7116(a)(1) and (5) of the Statute.
International Brotherhood of Electrical Workers, AFL-CIO, Local 121, 8
FLRA No. 35 (1982), 8 FLRA 188; American Federation of Government
Employees, AFL-CIO, Local 1692, 8 FLRA No. 37 (1982), 8 FLRA 194;
National Treasury Employees Union, 11 FLRA No. 53 (1983), 11 FLRA 254;
American Federation of Government Employees, 11 FLRA No. 54(1983), 11
FLRA 261; U.S. Army Engineer Center and Fort Belvoir and U.S.
Department of the Army, 13 FLRA No. 116(1984), 13 FLRA 707; Association
of Civilian Technicians, Pennsylvania State Council, 14 FLRA No. 6
(1984), 14 FLRA 38.
The same result is reached when the provisions of Article 7 of the
FASTA agreement are considered. Portions of this Article designate
specific FASTA "officers and duly designated representatives" as the
appropriate individuals to receive FAA recognition. It is clear that
these portions of Article 7 involve permissive subjects of bargaining.
In American Federation of Government Employees, AFL-CIO, 4 FLRA No.
39 (1980), 4 FLRA 272, a union was charged with failure to bargain
concerning a management proposal prescribing the organizational level
and segment from which the union would be required to designate its
representatives when dealing with agency management on certain specified
matters. The Authority held that it was "within the discretion of both
agency management and labor organizations holding exclusive recognition
to designate their respective representatives when fulfilling their
responsibilities under the Statute." The Authority noted that
management's proposal on this subject was "permissive in nature and
therefore outside the required scope of bargaining."
It follows therefore that the Charging Party retained the right to
unilaterally terminate those portions of Article 7 relating to the
designation of union representatives. Upon receipt of certification the
Charging Party had the right to insist that Mr. Johannssen would be the
appropriate party to receive notice of changes in the terms and
conditions of employment. That is, the Charging Party had a right to
elect not to be bound by the portions of Article 7 dealing with the
designation of FASTA representatives. Federal Aviation Administration,
Northwest Mountain Region, Seattle, Washington, and Federal Aviation
Administration, Washington, D.C., supra. The record reflects that the
Charging Party exercised this right. /8/
In this case the record disclosed that the Respondent determined
which of the Union's representatives would be recognized. Notice of the
proposed reduction in force was given to Mr. Schneider, and not to Mr.
Johannssen despite specific prior requests that Mr. Johannssen be
notified of changes. Repeated efforts to persuade the Respondent to
deal with Mr. Johannssen were either ignored or repudiated by
Respondent's representatives. The failure to provide a collective
bargaining representative with appropriate notice of changes in the
terms and conditions of employment operates to the representative
opportunity to make an informed decision concerning action to be taken.
Department of Defense, Department of the Navy, Naval Ordnance Station,
Louisville, Kentucky, supra, note 5.
The fact that Mr. Johannssen did subsequently receive actual notice
of the proposed reduction in force through Mr. Schneider, the Union's
Albany Sector representative does not inure to the benefit of the
Respondent in this case. Mr. Schneider was not the appropriate Union
official to receive notice, and the Respondent was aware of the Union's
designation of Mr. Johannssen. Moreover, receipt of actual notice by
Mr. Johannssen did not benefit the Union since the Respondent refused to
negotiate concerning the reduction in force at any organizational level
of the Union.
Agencies have an obligation to recognize and deal with
representatives selected to act for the collective bargaining
representative. A refusal to do so constitutes an attempt to interfere
in a union's internal affairs, and is violative of Section 7116(a)(1).
It also constitutes an improper refusal to consult or negotiate in good
faith with a labor organization in violation of Section 7116(a)(5).
Philadelphia Naval Shipyard, 4 FLRA No. 38 (1980), 4 FLRA 255. Since
the Respondent failed to recognize the designation of Mr. Johannssen,
and otherwise repudiated the Charging Party's designation of bargaining
representative, the Respondent's conduct in this area of concern was
also violative of Section 7116(a)(1) and (5) of the Statute. /9/
As a remedy in this case the General Counsel and the Charging Party
seek a cease and desist order, posting, return to status quo ante, and
back pay for Mr. Panek from the date of his separation until reinstated.
The Authority has held that status quo ante remedies may be issued in
refusal to bargain cases even when the agency decision itself was not
negotiable in the first instance. Federal Correctional Institution, 8
FLRA No. 111 (1982), 8 FLRA 604. In Federal Correctional Institution
the Authority stated:
Accordingly, in determining whether a status quo ante remedy
would be appropriate in any specific case involving a violation of
the duty to bargain over impact and implementation, the Authority
considers, among other things, (1) whether, and when, notice was
given to the union by the agency concerning the action or change
decided upon; (2) whether, and when, the union requested
bargaining on the procedures to be observed by the agency in
implementing such action or change and/or concerning appropriate
arrangements for employees adversely affected by such action or
change; (3) the willfulness of the agency's conduct in failing to
discharge its bargaining obligations under the Statute; (4) the
nature and extent of the impact experienced by adversely affected
employees; and (5) whether, and to what degree, a status quo ante
remedy would disrupt or impair the efficiency and effectiveness of
the agency's operations.
The Respondent refused to provide notice of the reduction in force to
Mr. Johannssen despite the fact that he was designated as the
appropriate Union representative to receive notice of changes in the
terms and conditions of employment. Both the Union official receiving
notice of the reduction in force, and Mr. Johannssen promptly requested
impact and implementation bargaining; however, the Respondent refused
these bargaining requests. The Respondent's failure to discharge its
bargaining obligations under the Statute was intentional, although based
upon the mistaken legal conclusion that Respondent was entitled to
adhere to provisions of Article 7 and 48 of the FASTA agreement. The
action taken by the Respondent had an impact in that it resulted in Mr.
Panek's separation from his position, and generated an increase in
workload for employees retained. The record reflects no showing that a
return to status quo ante would disrupt or impair the efficiency and
effectiveness of the agency's operations. Based upon a careful
balancing and consideration of these factors it is concluded that a
status quo ante remedy is warranted, and further that such a remedy will
best effectuate the purposes and policies of the Statute.
However, a back pay order would be inappropriate in this case. In
order for retroactive back pay to be authorized under the Back Pay Act,
5 U.S.C. 5596, there must be a determination that not only has an
employee been adversely affected by an unjustified or unwarranted
personnel action, but also that but for the improper action such
employee would not have suffered a loss or reduction in pay, allowances,
or differentials. Federal Aviation Administration, Northwest Region,
Seattle, Washington, and Federal Aviation Administration, Washington,
D.C., supra. Department of the Air Force, Air Force Systems Command,
Electronic Systems Division, 14 FLRA No. 63(1984), 14 FLRA 390. /10/ In
the circumstances of this case it cannot be established that Mr. Panek's
employment would have continued without loss of pay but for the
Respondent's unlawful refusal to notify the designated Union
representative, and unlawful refusal to bargain over the impact and
implementation of the reduction in force.
Counsel for the General Counsel contends that "in view of the
national implications of Respondent's conduct" the Respondent should be
required to post notices at all locations where bargaining unit
employees are employed (G.C. Brief at 14). The evidence does disclose
that policy governing Respondent's conduct in this case was formulated
at the highest levels of the FAA and implemented by officials at FAA's
headquarters, FAA's Eastern Region, and FAA's Airways Facility Sector
810. Accordingly, it would be appropriate to effect a posting at each
of these levels of Respondent's operation inasmuch as the unlawful
practices established occurred at these locations. Veterans
Administration Medical Center, Bath, New York, and Veterans
Administration, Washington, D.C., 12 FLRA No. 107 (1983), 12 FLRA 552;
National Treasury Employees Union, 10 FLRA No. 91 (1982), 10 FLRA 519,
aff'd, 721 F.2d 1402 (D.C. Cir. 1983; Overseas Education Association,
11 FLRA No. 75 (1983), 11 FLRA 377.
Having found that the Respondent violated Sections 7116(a)(1) and (5)
of the Statute, it is recommended that the Authority issue the following
Order:
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., and Federal
Aviation Administration, Eastern Region, Jamaica, New York; and Federal
Aviation Administration, Airways Facilities Sector 810, Albany, New
York, shall:
1. Cease and desist from:
(a) Implementing any reduction in force at the Federal Aviation
Administration, Airways Facilities Sector 810, Albany, New York,
affecting employees represented exclusively by Professional
Airways Systems Specialists, the employees' exclusive
representative, without first providing appropriate advance notice
to Professional Airways Systems Specialists, and affording it an
opportunity to bargain concerning the impact and implementation of
such reduction in force.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request rescind the July 23, 1983, reduction in force
at the Federal Aviation Administration, Airways Facilities Sector
810, Albany, New York; and reinstate Mr. Andrew Panek to his
position as a Maintenance Mechanic WG-4749-11.
(b) Notify the appropriate representative of Professional
Airways Systems Specialists of any intended reduction in force
affecting employees represented exclusively by Professional
Airways Systems Specialists at the Federal Aviation
Administration, Airways Facilities Sector 810, Albany, New York,
and afford it an opportunity to request bargaining concerning the
impact and implementation of such reduction in force.
(c) Post at its facilities at the Federal Aviation
Administration, Washington, D.C.; Federal Aviation Administration,
Eastern Region, Jamaica, New York; and Federal Aviation
Administration, Airways Facilities Sector 810, Albany, New York,
copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Such forms shall be signed by
the Administrator of the Federal Aviation Administration 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 I, 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.
LOUIS SCALZO
Administrative Law Judge
Dated: August 8, 1984
Washington, DC
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT implement any reduction in force affecting employees
represented exclusively by Professional Airways Systems Specialists at
the Federal Aviation Administration, Airways Facilities Sector 810,
Albany, New York, without first providing appropriate notice to
Professional Airways Systems Specialists, the employees' exclusive
representative, and affording it an opportunity to bargain concerning
the impact and implementation of such reduction in force.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, rescind the July 23, 1983, reduction in force
at the Federal Aviation Administration, Airways Facilities Sector 810,
Albany, New York and reinstate Mr. Andrew Panek to his position as a
Maintenance Mechanic WG-4749-11.
WE WILL notify the appropriate representative of Professional Airways
Systems Specialists of any intended reduction in force affecting
employees represented exclusively by Professional Airways Systems
Specialists at the Federal Aviation Administration Airways Facilities
Sector 810, Albany, New York, and afford it an opportunity to request
bargaining concerning the impact and implementation of such reduction in
force.
(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, Region I, Federal Labor Relations Authority, whose
address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts 02116,
and whose telephone number is 617-223-0920.
--------------- FOOTNOTES$ ---------------
/1/ See United States Department of Transportation, Federal Aviation
Administration, 19 FLRA No. 116 (1985); United States Department of
Transportation, Federal Aviation Administration, 19 FLRA No. 62 (1985);
United States Department of Transportation, Federal Aviation
Administration, 18 FLRA No. 8 (1985); and Federal Aviation
Administration, Washington, D.C., 17 FLRA No. 26 (1985).
/2/ In agreement with the Judge and based on his rationale and
application of the Authority's test for determining whether an award of
backpay is appropriate under the Back Pay Act, 5 U.S.C. 5596, the
Authority finds, contrary to the positions of the General Counsel and
the Charging Party contained in their exceptions, that a backpay order
is not warranted in the circumstances of this case. See United States
Department of Agriculture, Plant Protection and Quarantine, Animal and
Plant Health Inspection Service, 17 FLRA No. 40 (1985).
/3/ Since the FASTA agreement provided for notification of FASTA
officials at the Sector level with respect to matters relating to the
Sector Manager, and consultation concerning reductions in force, Mr.
Curran's February 8, 1982 letter represented a repudiation of demands
made by Mr. Johannssen in the February 2, 1982 letter to Mr. Helms.
/4/ Mr. Schneider also testified that in late 1982 he had advised Mr.
Booker on numerous occasions that Mr. Johannssen was the appropriate
person to contact in such cases (Tr. 20).
/5/ Mr. Panek held one of three WG-4749-11 positions in the Airway
Facilities Sector, Albany, New York. The reduction in force eliminated
one of these positions.
/6/ The letter reflects that it was received on May 25, 1983.
/7/ See U.S. Nuclear Regulatory Commission, 6 FLRA No. 9 (1981), 6
FLRA 16; Department of the Air Force, 35th Combat Support Group (TAC),
George Air Force Base, California, 4 FLRA No. 5 (1980), 4 FLRA 22;
Department of Defense, Department of the Navy, Naval Ordnance Station,
Louisville, Kentucky, 4 FLRA No. 100 (1980), 4 FLRA 760.
/8/ The Charging Party had the right to designate Mr. Johannssen, or
other appropriate representatives designated by Mr. Johannssen. The
record indicates that Mr. Johannssen intended to pursue the latter
procedure upon receipt of notice of changes in the terms and conditions
of employment.
/9/ In view of the conclusions outlined it is unnecessary to pass
upon other arguments interposed by the Charging Party in support of the
complaint.
/10/ But see United States Department of the Treasury, Internal
Revenue Service, Dallas District, 13 FLRA No. 82(1983), 13 FLRA 459.