LR Source
WIN: Attorney fees awarded to NATCA
The Back Pay Act provides for the recovery of reasonable attorney fees when the grievant is found by the Arbitrator to have been affected by an “unjustified or unwarranted personnel action” which resulted in the withdrawal or “reduction in pay” allowances, etc. A submission for Attorney fees is appropriate when the grievant is the “prevailing party” and when the arbitrator determines attorney fees would be in the “interest of justice.”
NATCA submitted a brief requesting reasonable attorney fees when it prevailed in the Insubordination/Operational Error case that came out of the Detroit TRACON. The Arbitrator determined in his award that the Agency was unjustified in suspending the controller for a charge of insubordination and the Agency was ordered to make the grievant whole. He further determined that the Union should be awarded attorney fees in the interest of justice.
The Arbitrator awarded NATCA fees for the services and expenses of Labor Relations Staff Representative Barbara Fitzpatrick ($16,112.00) and Acting Director of Labor Relations Marc Shapiro ($6,840.00) for a total of $22,952.00. This money is to be deposited into the NATCA Legal Representation Fund.
WIN: The Agency’s answer to its bargaining obligation; involuntarily transfer employees out of a bargaining unit!
The FAA payroll function has been transferred from FAA to the DOI (Department of Interior). However, five (5) NATCA BUEs in ASO Payroll Division jobs remain in limbo due to the fact that the agency failed to find them replacement jobs within the FAA. The parties met for negotiations in April and May, but without success. NATCA then notified the Federal Mediation and Conciliation Service (FMCS) that assistance was needed.
The FMCS set a date for mediation and the parties agreed. One week prior to the mediation the agency provided the employees with a 3-day advance notice that they are being reassigned to another division. The employees were told that if they did not show up they would be AWOL. The employees showed up and one of them was told to return to their previous work place because they were not ready for them. Clearly, the “reassignment” lacked coordination, planning, and the input of the exclusive bargaining representative.
NATCA was notified that the employees were reassigned and the mediation was canceled. NATCA explained to the agency that they were still under a legal obligation to bargain the impact and implementation of this change in the employees working conditions. Additionally, the FAA owed NATCA a briefing and bargaining over the reassignment arrangements the FAA needed to proceed with the mediation session with the FMCS to ensure both parties have the same agreed upon understanding of the arrangements made to resolve the RIF issue.
The Agency’s response was, “because we moved these employees out from under any union we no longer have a bargaining obligation.” After making this outlandish statement to both NATCA and the FMCS, the agency received a phone call from the FMCS commissioner requesting that the parties continue to meet. This too was met with a refusal.
NATCA will file ULP charges for failure to bargain. LR Staff Representative Barbara Fitzpatrick and ARC/ABA National Representative Carmela Newberry are working the issue.
WIN: Filing of ULP charge forces Agency to privately pay employee for time he conducted training
In 2005, the FAA asked a Cleveland ATC to teach a safety class at the Aeronautical Center. The employee agreed and requested the administrative time to teach the class. The Cleveland Air Traffic Manager approved the travel and expenses for the trip, but required the employee to take leave for the “union sponsored” training. NATCA filed an unfair labor practice regarding management’s denial. The case settled with the restoration of the employee’s leave and credit hours for working on his RDO.
In addition, while the ULP case was pending, the same employee was asked to teach a second class and management again denied him administrative time to teach, while approving his travel and expenses for the trip. NATCA filed a grievance over the second instance. This matter also settled favorably for the employee with the same remedy as the ULP filing. Labor Relations Staff Representative Jennifer Kukac resolved this issue for NATCA.
WIN: Arbitrator Reinstates Controller Who Had Been Removed For Phraseology Errors
On July 6, 2006 an air traffic controller removed from his job at Miami Center due to "phraseology errors" was ordered reinstated to his previous position by Arbitrator Stanley H. Sergent. The Arbitrator found that although the Agency had shown that the controller's phraseology errors constituted "negligent work performance" that resulted in the danger of injury to the flying public, the Agency's penalty of removal for the offense was unduly harsh and excessive as well as procedurally flawed. Specifically, the Arbitrator found that the controller's offense was technical and inadvertent and not intentional or committed maliciously or for personal gain. He also determined that the fact the grievant was a high level performer and considered by management to be the "go to guy" in the area was also a mitigating factor in the grievant's favor. Furthermore, the Arbitrator held that management failed to ever put the grievant on notice that his phraseology errors were rising to the level of negligent work performance. Finally, the Arbitrator determined that the Agency had failed to provide all of the relevant information regarding the issue to the Union prior to the heraing as required by the CBA. For these and other reasons, the Arbitrator found that removal was an excessive and unreasonable penalty, rescinded the removal, and ordered the grievant to be reinstated to his former position, although without back pay. The grievant was represented by Southern Region ATC and Advocate Victor Santore and by Peter Gimbrere, NATCA LR Attorney.
WIN: Arbitrator Finds Controller Denied His Rights When Forced Onto A Last Chance Agreement Rehab Plan Without Evidence of Substance Abuse Problem
On June 20, 2006, Arbitrator Charles Long found that an air traffic controller in the Eastern Region was improperly forced onto a last chance agreement substance abuse treatment and rehabilitation plan without any timely or adequate evidence of a current substance abuse problem, in violation of Article 10, Section 2 of the CBA. As a remedy, the Arbitrator ordered the Agency to make the controller whole for all lost wages or other lost income resulting from his removal from ATC duties for the period from June 2003 to December 2003. He also ordered the Agency to expunge the controller's personnel records of all references to the illegal treatment and rehabilitation plan and to reimburse the greivant for all out-of-pocket expenses associated with the controller's visits for medical evaluations. The grievant was represented by Eastern Region ATC and Advocate Don Chapman and by Peter Gimbrere, NATCA LR Attorney.
WIN: Arbitrator rules that FAA Failed To Properly Bargain Pago Pago Facility Closure
NATCA recently received a key arbitration decision when an arbitrator found that the FAA violated the parties' Collective Bargaining Agreement in connection with matters relating to the closing of the Pago Pago Air Traffic Control Tower by not properly notifying and bargaining with the union over the facility's closure.
Despite a contract clause requiring that NATCA receive nine month's notice of the facility closure the FAA only provided six months' notice. Merit was also found by the arbitrator that the Agency's unilateral reassignment of the Pago Pago Air Traffic Control Specialists to the Livermore Air Traffic Control Tower was improper in that the Agency failed to engage in mid-term bargaining concerning the impact and implementation of the changes to its operations that were necessitated by the closure of the facility, as required by Article 7 of the Agreement.
In upholding NATCA's grievance, the Arbitrator, while recognizing that Pago Pago has already closed and the employees have long since been reassigned, ordered the FAA to negotiate with NATCA regarding "any such issues that still remain unresolved, including, but not limited to, the reassignment of the employees in the Bargaining Unit who formerly worked at Pago Pago."
WIN: Arbitrator overturns FAA's decision to discipline controller for operational error
This case stems from a charge against a CPC for “careless work performance resulting in danger to others.” He was working air traffic when an OE occurred. The FAA imposed a five-day suspension that NATCA took to arbitration. The agency failed to prove its allegation that the employee was “careless” in performing his air traffic duties. The Arbitrator concluded that given the circumstances of the event it should be addressed with discussion, education, counseling, and other forms of remediation instead of discipline. The Award suggests that in order for the agency to make the leap to discipline they must first establish multiple performances deficiencies, and enhancement training failures, within a relatively short period of time. With the exception of this matter the controller has enjoyed an unblemished 19-year career. He had no prior OE, counseling, or discipline of any type. Disturbing to the Arbitrator was the fact that “the manager chose to impose discipline after the OE, after first designating the grievant as a trainer – a most curious approach, undercutting his claim against the grievant.” The Arbitrator emphasized that a reasonable manager would have found the CPC’s actions to be “inadvertent.” The Arbitrator stated, “Discipline accomplished nothing and was not in the best interest of the agency.” The grievance was sustained and the grievant was awarded back pay with interest. All records of the suspension were to be expunged immediately and the Arbitrator retains jurisdiction regarding attorney fees. LR Staff Representative Barbara Fitzpatrick was the lead on this issue.
FLRA Agrees with NATCA and causes the FAA to admit that it failed to properly notify the union regarding ATO briefing
NATCA filed aULP over the agency's failure to provide the union with adequate notice for formal meetings that the agency held regarding ATO restructuring. Faced with the threat of legal action by the Federal Labor Relations Authority, the FAA has agreed to settle, with a nationwide posting at all ATO facilities wherein it admitted its wrong doing. ATO Chief Executive Officer Russ Chew personally signed the notice.
FLRA Administrative Law Judge cites FAA for illegal action at N90
NATCA filed an unfair labor practice charge over the FAA's removal, by means of armed escort, of the principal facility representative at N90 . The FLRA issued a complaint and the case went to trial before an administrative law judge. In totally rejecting the FAA's feeble arguments the Judge concluded that the FAC rep was engaged in union activity and his removal from the facility by armed guard in full view of bargaining unit employees was designed to intimidate NATCA members from engaging in union activities. The Judge ordered as a remedy that a Notice be placed in the read and initial binder in every facility where the incident was reported.
Arbitrator Confirms FAA's Obligation to provide compensation if it cancels overtime with less than seven days notice
NATCA arbitrated a case where overtime was cancelled by the FAA when it decided to cancel a meeting that a controller was to attend. In agreeing with the union, the Arbitrator discussed a number of conflicting arbitration decisions and determined that if the cancellation occurred due to something within the Agency's control, then the employee should be compensated for the cancellation if the contractually required seven days notice is not given.
FAA agrees it unlawfully instituted an operational error program before it concluded bargaining
When faced with having an administrative law judge of the FLRA cite them for violating the law, the FAA agreed to tell its employees in a nationwide posting that it improperly implemented changes to FAA Order 7210.56C concerning the use of random audits to detect operational errors and deviations. The FAA unilaterally implemented this change last October without so much as a discussion with NATCA concerning this change. As part of the settlement the Agency agreed to return to the bargaining table and then retroactively apply the agreement to those adversely affected.
