Federal Aviation Administration and PASS (Authority decision, August 22, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

An FAA radar unit manager polled technicians about possible shift changes by memo and at a meeting. The Authority found that the questions concerned contemplated changes to working conditions and bypassed PASS. It ordered the FAA to stop dealing directly with employees and post a notice. It dismissed the separate formal discussion allegation because the union representative had been told of the meeting and chose not to attend.

Decision snapshot

• Authority: Union representation and unfair labor practices under 5 U.S.C. §§ 7114(a)(2)(A) and 7116(a).
• Outcome: Bypass violation found; formal discussion allegation rejected.
• Key point: Polling employees about proposed shift changes dealt directly with them on negotiable matters.

Full text (FLRA public release)

[ 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.