Federal Aviation Administration, Greater Pittsburgh Tower and Professional Air Traffic Controllers Organization, Local 245 (Authority decision, May 21, 1979)

Final FLRA decision under Executive Order 11491. The Authority adopted the judge's dismissal of this transferred unfair labor practice case. The decision says it applies Executive Order 11491 rather than the later federal labor relations statute and does not address judicial review.

Plain-English summary

At the Greater Pittsburgh air traffic control tower, a supervisor struck a controller's shoulder with a telephone receiver and shouted during a dispute about flight-plan clearances. The controllers' union alleged unfair labor practices under Executive Order 11491. The judge found the conduct serious but isolated and found no evidence of antiunion animus or a broader effort to deter protected activity. The Authority adopted the judge's dismissal of the complaint. No exceptions were filed.

Decision snapshot

• Authority: 5 U.S.C. § 7135(b); Executive Order 11491, § 19(a)(1) and (2).
• Outcome: The judge's dismissal of the unfair labor practice complaint was upheld.
• Key point: The incident did not establish the alleged labor-law violation on the record presented.

Full text (FLRA public release)

[ v01 p342 ]

01:0342(43)CA

The decision of the Authority follows:

1 FLRA No. 43

FEDERAL AVIATION ADMINISTRATION,
GREATER PITTSBURGH TOWER
Respondent

and

PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, MARINE ENGINEERS
BENEFICIAL ASSOCIATION, AFL-CIO,
LOCAL 245
Complainant

Assistant Secretary
Case No. 21-05970(CA)

DECISION AND ORDER

ON JANUARY 11, 1979, ADMINISTRATIVE LAW JUDGE PETER MCC. GIESEY
ISSUED HIS RECOMMENDED DECISION AND ORDER IN THE ABOVE-ENTITLED
PROCEEDING, FINDING THAT THE RESPONDENT HAD NOT ENGAGED IN THE UNFAIR
LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING THAT THE
COMPLAINT BE DISMISSED IN ITS ENTIRETY. NO EXCEPTIONS WERE FILED TO THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER.

THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040), WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S TRANSITION RULES AND
REGULATIONS (44 F.R. 7). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR
THE PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).

THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S TRANSITION
RULES AND REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY
HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE
HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS
ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THIS
CASE, AND NOTING PARTICULARLY THAT NO EXCEPTIONS WERE FILED, THE
AUTHORITY HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS,
CONCLUSIONS AND RECOMMENDATION. /1/

ORDER

IT IS HEREBY ORDERED THAT THE COMPLAINT IN ASSISTANT SECRETARY CASE
NO. 21-05970(CA) BE, AND IT HEREBY IS, DISMISSED.

ISSUED, WASHINGTON, D.C., MAY 21, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

JOSEPH WINKLER, ESQUIRE

LABOR RELATIONS SPECIALIST

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

FEDERAL BUILDING

JOHN F. KENNEDY INTERNATIONAL AIRPORT

JAMAICA, NEW YORK 11430

FOR THE RESPONDENT

ROBERT H. P. FINNEGAN

ASSISTANT TO EASTERN REGIONAL VICE PRESIDENT

1455 VETERANS HIGHWAY

HAUPPAUGE, NEW YORK 11787

FOR THE COMPLAINANT

BEFORE: PETER MCC. GIESEY

ADMINISTRATIVE LAW JUDGE

CASE NO. 21-05970(CA)

RECOMMENDED DECISION AND ORDER

THIS IS A PROCEEDING BROUGHT UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREAFTER, "THE ORDER") BY PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION, LOCAL 245, MEBA, AFL-CIO, A LOCAL OF THE LABOR
ORGANIZATION REPRESENTING AIR TRAFFIC CONTROLLERS IN A UNIT APPROPRIATE
FOR PURPOSES OF COLLECTIVE BARGAINING, AGAINST THE AGENCY. PATCO
COMPLAINS THAT THE AGENCY VIOLATED SECTIONS 19(A)(1) AND (2) OF THE
ORDER /2/ BY THE WORDS AND ACTIONS OF A SUPERVISORY AIR TRAFFIC CONTROL
SPECIALIST ON THE AFTERNOON OF NOVEMBER 30, 1977.

A HEARING WAS HELD IN PITTSBURGH, PENNSYLVANIA ON OCTOBER 3, 1978.
BRIEFLY, THE RECORD SHOWS THE FOLLOWING.

STATEMENT OF THE CASE.

ON NOVEMBER 30, 1977, AIR TRAFFIC CONTROLLER ROBERT NESTLER WAS
WORKING AT THE CLEARANCE DELIVERY POSITION IN THE CONTROL TOWER AT
GREATER PITTSBURGH AIRPORT. HE TESTIFIED THAT TRAFFIC WAS "FAIRLY
HEAVY" WHEN HE HEARD A RADAR CONTROLLER SHOUT THAT ONE OF THE AIRCRAFT
UNDER HIS CONTROL HAD "TIMED OUT". /3/

MR. NESTLER TESTIFIED THAT HE THEN LOOKED INTO HIS BAY (WORK STATION
CONTAINED "STRIPS"-- FLIGHT PLANS) AND SAW THAT THERE WERE OTHER
AIRCRAFT WITH FLIGHT PLANS THAT WERE CLOSE TO BEING TIMED OUT.

HE CALLED THE SUPERVISOR, TOLD HIM THAT HE COULD "SEE A PROBLEM
DEVELOPING HER" AND RECOUNTED THE "TIMING OUT" THAT HAD ALREADY OCCURRED
AND THE POTENTIAL FOR OTHER "TIME OUTS". WHEN THE SUPERVISOR INDICATED
THAT HE UNDERSTOOD, MR. NESTLER ASKED HIM WHY HE DIDN'T HAVE THE TOWER
(DATA POSITION OPERATOR LOCATED ELSEWHERE IN THE TOWER) UPDATE THE
CLEARANCES "LIKE THEY ARE SUPPOSED TO DO AND I DID . . . LAST WEEK". HE
CALLED THE SUPERVISOR'S ATTENTION TO EVENTS OF THE PREVIOUS WEEK WHEN
THEY HAD BEEN WORKING THE DATA POSITIONS AND THE SUPERVISOR HAD
INSTRUCTED NESTLER TO UPDATE THE CLEARANCES. THE SUPERVISOR SAID HE
WOULD CALL THE TOWER. HE PICKED UP A TELEPHONE IMMEDIATELY BEHIND
NESTLER'S POSITION AND SPOKE FOR A FEW MOMENTS, TURNED TO NESTLER AND
SAID, "WHAT'S YOUR PROBLEM?" A SHORT CONVERSATION FOLLOWED AND THE
SUPERVISOR INDICATED THAT HE SAW NO PROBLEM AND INSTRUCTED NESTLER TO
UPDATE THE CLEARANCES. /4/

NESTLER TOLD THE SUPERVISOR TO "PRETEND I DIDN'T SAY ANYTHING".
ACCORDING TO NESTLER, THE SUPERVISOR BECAME "VISIBLY SHAKEN" AND BROUGHT
THE TELEPHONE RECEIVER DOWN SHARPLY ON NESTLER'S SHOULDER SAYING "DON'T
GET SMART YOU SON-OF-A-BITCH". ACCORDING TO NESTLER, HE "SCREAMED' QUIT
HITTING ME'", THE SUPERVISOR SAID "I DIDN'T HIT YOU". WHEN NESTLER
REPEATED "QUIT HITTING ME" THE SECOND OR THIRD TIME, HIS SUPERVISOR TOLD
HIM "SHUT UP-- SHUT UP GODDAMN YOU . . . I AM ORDERING YOU TO SHUT UP".

NESTLER TESTIFIED THAT HE WAS "SCARED TO DEATH" AND THAT HE WAS
"READY TO INVOKE ARTICLE 55 /5/ OR SOMETHING . . . WHEN HE SAID I AM
ORDERING YOU TO SHUT UP".

NESTLER THEN ASKED TO BE RELIEVED. A SHORT WHILE LATER, HE WAS
RELIEVED. HE WAS ABSENT DURING THE REST OF THE SHIFT AND THE NEXT DAY.
"TRAUMATIC LEAVE" WAS APPROVED.

MR. NESTLER'S SUPERVISOR TESTIFIED TO ESSENTIALLY IDENTICAL EVENTS.
HE STATED THAT, AS A DIRECT CONSEQUENT OF THESE EVENTS, HE WAS
REPRIMANDED BY HIS IMMEDIATE SUPERVISOR.

OTHER WITNESSES CORROBORATED VARIOUS ASPECTS OF MR. NESTLER'S
TESTIMONY.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HAVING CONSIDERED THE ENTIRE RECORD INCLUDING THE TESTIMONY, EXHIBITS
AND BRIEFS OF THE PARTIES AND HAVING OBSERVED THE DEMEANOR OF THE
WITNESSES, I MAKE THE FOLLOWING FINDINGS OF FACT, CONCLUSIONS OF LAW AND
RECOMMENDED DECISION BASED THEREON.

THE FACTS ARE AS SET FORTH IN THE STATEMENT OF THE CASE. ALL
WITNESSES WERE CREDIBLE AS TO FACTS. NEITHER CONTRADICTIONS NOR
INCONSISTENCIES IN MATTERS OF SUBSTANCE APPEAR IN THE TESTIMONY OF THE
VARIOUS WITNESSES.

BEFORE THE HEARING, COMPLAINANT'S THEORY OF THE CASE, ACCORDING TO
THE INFORMAL FILE, WAS BASED UPON THE ERRONEOUS IMPRESSION THAT ARTICLE
55 OF THE COLLECTIVE BARGAINING AGREEMENT HAD BEEN INVOKED AND THAT THE
SUPERVISOR'S ACTIONS HAD THE PREDICTABLE EFFECT OF CHILLING THE
ASSERTION OF RIGHTS UNDER THE CONTRACT. SEE, DEPARTMENT OF
TRANSPORTATION, FEDERAL AVIATION ADMINISTRATION, INDIANAPOLIS AIR ROUTE
TRAFFIC CONTROL CENTER, A/SLMR NO. 812.

JUDGING BY ITS POST HEARING BRIEF, COMPLAINANT HAS ABANDONED THIS
POSITION IN LIGHT OF THE FACT THAT THE RECORD WILL NOT SUPPORT IT.

COMPLAINANT'S POST HEARING POSITION IS, BRIEFLY, THAT BECAUSE MR.
NESTLER WAS A DESIGNATED "CREW REP" (LIAISON OR UNION STEWARD) HIS
DISCUSSION WITH HIS SUPERVISOR WAS CONCERTED ACTION ON BEHALF OF ALL THE
CREW AND THAT HIS SUPERVISOR'S WORDS AND ACTION "HAD THE EFFECT OF
MAKING HIM APPEAR WEAK AND INEFFECTUAL TO BARGAINING UNIT MEMBERS; SUCH
ACTIONS HAVE A 'CHILLING EFFECT' ON BARGAINING UNIT MEMBERS WHO ARE
SEEKING DISCOURSE ON DECISIONS AFFECTING THEIR DUTIES, TO DO SO AT THEIR
OWN PERIL."

IN MY OPINION THE ARGUMENT HAS CONSIDERABLE MERIT (DESPITE THE FACT
OF CITATION TO AUTHORITY) IF IT IS ADDRESSED TO CIRCUMSTANCES OTHER THAN
THOSE SPREAD ON THIS RECORD. THUS, THE INSTANT MATTER HAS NOT BEEN
REPRESENTED TO BE OTHER THAN AN ISOLATED INCIDENT RATHER THAN A COURSE
OF CONDUCT OR A CAMPAIGN. THAT IT WAS ISOLATED, UNUSUAL AND SHOCKING TO
THE CREW IS INDICATED BY NESTLER'S TESTIMONY THAT A HUSH FELL OVER THE
CONTROL ROOM WHEN IT OCCURRED.

IT IS COMMON KNOWLEDGE THAT CONTROLLERS WORK UNDER TENSION IN A
PRECISE DISCIPLINE UPON WHICH THE PHYSICAL SAFETY OF MANY PERSONS IS
DEPENDENT. SHOULD THE RARE INSTANCES WHEN SUPERVISORS RIGHTLY OR
WRONGLY RAISE THEIR VOICES OR LOOSE PATIENCE WITH UNIT MEMBERS
AUTOMATICALLY BE DEEMED AN UNFAIR LABOR PRACTICE, THE SELECTION OF
SUPERVISORS WOULD FOR MANAGEMENT BECOME A SEARCH FOR LIVING SAINTS.

MOREOVER, THE RECORD IN THIS MATTER CONTAINS NOT A SCINTILLA OF
EVIDENCE TO SUPPORT A FINDING OF ANTIUNION ANIMUS ON THE PART OF ANY
AGENT OF MANAGEMENT. THE FINDING OF A VIOLATION OF SECTIONS 19(A)(1)
AND (2) OF THE ORDER IN SUCH CIRCUMSTANCES IS PARTICULARLY
INAPPROPRIATE. SEE, E.G., PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASH.
A/SLMR NO. 710; DSA, DEFENSE PROPERTY DISPOSAL SERVICE, ELMENDORF AFB,
ALASKA, A/SLMR NO. 713.

ACCORDINGLY, I RECOMMEND THAT THE FEDERAL LABOR RELATIONS AUTHORITY
DISMISS THE COMPLAINT IN ITS ENTIRETY.

PETER MCC. GIESEY

ADMINISTRATIVE LAW JUDGE

DATED: JANUARY 11, 1979

WASHINGTON, D.C.

PG:LE

/1/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE BASIS
OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.

/2/ AGENCY MANAGEMENT SHALL NOT--

(1) INTERFERE WITH, RESTRAIN, OR COERCE AN EMPLOYEE IN THE EXERCISE
OF THE RIGHTS ASSURED

BY THIS ORDER;

(2) ENCOURAGE OR DISCOURAGE MEMBERSHIP IN A LABOR ORGANIZATION BY
DISCRIMINATION IN REGARD

TO HIRING, TENURE, PROMOTION, OR OTHER CONDITIONS OF EMPLOYMENT.

/3/ FLIGHT PLAN CLEARANCE IS EFFECTIVE FOR A DISCRETE PERIOD OF TIME.
IF AN EXCESSIVE AMOUNT OF TIME PASSES BETWEEN THE FILING OF THE FLIGHT
PLAN HAS BEEN RECORDED CANCELS THE FLIGHT PLAN. THIS CAN RESULT IN A
AIRCRAFT BEING AIRBORNE UNDER THE CONTROL OF AN AIR TRAFFIC CONTROLLER
WHO HAS NO PROPER WAY TO "HAND OFF" (DELIVER CONTROL) TO A CONTROLLLER
IN THE CONTROL AREA INTO WHICH THE AIRCRAFT IS HEADED.

THIS CAN BE PREVENTED BY "UPDATING" THE CLEARANCE BEFORE IT IS TIMED
OUT OF THE COMPUTER.

/4/ AN ADD-A-DATA MACHINE WAS LOCATED NEXT TO HIS BAY.

/5/ ARTICLE 55 OF THE COLLECTIVE BARGAINING AGREEMENT, IN PERTINENT
PART;

SECTION 1. IN THE EVENT OF A DIFFERENCE IN PROFESSIONAL OPINION
BETWEEN THE EMPLOYEE AND

THE SUPERVISOR, THE EMPLOYEE SHALL COMPLY WITH THE INSTRUCTIONS OF
THE SUPERVISOR AND THE

SUPERVISOR SHALL ASSUME RESPONSIBILITY FOR HIS OWN DECISIONS.