Stefanie Arthur, Esq.

              For the General Counsel

 

William W. Osborne, Jr., Esq.

Natalie C. Moffett, Esq.

                For the Respondent NATCA

 

Cabrina S. Smith, Esq.

   For the Respondent FAA

 

Before:    CHARLES R. CENTER     

                Chief Administrative Law Judge  

 

 

            These cases arose under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. §§ 7101-7135 and the revised Rules and Regulations of the Federal Labor Relations Authority (FLRA/Authority), Part 2423.

 

The cases at bar were initiated by nine individual unfair labor practice (ULP) charges against respondent National Air Traffic Controllers Association (NATCA) in five regions of the FLRA. Case No. SF-CO-09-0001 was filed with the San Francisco Regional Director on October 1, 2008, by Mark Santa Cruz. Case No. SF-CO-09-0030 was filed with the San Francisco Regional Director on October 16, 2008, by Steven Dunlap. Case No. AT-CO-09-0040 was filed with the Atlanta Regional Director by Michael Mekara on October 31, 2008, and transferred to the San Francisco Regional Director on October 28, 2009. Case No. CH-CO-09-0076 was filed with the Chicago Regional Director by Jim H. Hendrickson on October 30, 2008, and transferred to the San Francisco Regional Director on October 28, 2009.   Case No. CH-CO-09-0111 was filed with the Chicago Regional Director by Scott D. DeVane on November 19, 2008, and transferred to the San Francisco Regional Director on October 28, 2009. Case No. CH-CO-09-0304 was filed with the Chicago Regional Director by Julie Ireland on February 24, 2009, and transferred to the San Francisco Regional Director on October 28, 2009. Case No. CH-CO-09-0313 was filed with the Chicago Regional Director by David Johnson on March 6, 2009, and transferred to the San Francisco Regional Director on October 28, 2009. Case No. DA-CO-09-0014 was filed with the Dallas Regional Director by Calvin Brown on October 27, 2008, and transferred to the San Francisco Regional Director on October 30, 2009. Case No. DE-CO-09-0018 was filed with the Denver Regional Director by William D. Aynes on October 14, 2008, and transferred to the San Francisco Regional Director on November 2, 2009.

 

A consolidated complaint based upon the nine individual charges filed against NATCA was issued by the San Francisco Regional Director on December 14, 2009. The consolidated complaint alleges that NATCA failed to comply with its duty to fairly represent employees in the bargaining unit under 5 U.S.C. § 7114(a)(1), and committed unfair labor practices in violation of 5 U.S.C. § 7116 (b)(1) and (8).

 

On December 24, 2008, an unfair labor practice charge was filed against the Department of Transportation, Federal Aviation Administration (FAA) by Calvin Brown in Case No. DA-CA-09-0061. The charge was filed with the Dallas Regional Director and transferred to the San Francisco Regional Director on October 30, 2009. A complaint based upon this charge was issued by the San Francisco Regional Director on December 29, 2009. The complaint alleges the FAA “… interfered with, restrained or coerced employees in the exercise of their right[s] under § 7102 of the Statute to refrain from 'forming, joining or assisting a labor organization' freely and without free of reprisal.”^[1], and thus committed an unfair labor practice in violation of 5 U.S.C. § 7116(a)(1) and (8).

 

On January 27, 2010, the Regional Director of the San Francisco Region consolidated Case No. DA-CA-09-0061, the unfair labor practice complaint filed against respondent FAA, with Case No. SF-CO-09-0001 et al., the consolidated complaint covering the nine unfair labor practice charges filed against respondent NATCA that was issued on December 14, 2009. The Regional Director consolidated the ten cases because they all relate to an amendment of NATCA’s Constitution adopted on September 12, 2008, which altered the national seniority policy for the bargaining unit. In essence, the nine charges against NATCA stem from its adoption and implementation of a new seniority policy, and the charge against the FAA stems from its application of the new seniority policy.

 

The cases were set for hearing in San Francisco on February 22, 2010. On January 11, 2010, respondent NATCA filed an answer to the consolidated complaint in Case No. SF-CO-09-0001 et al., and on January 19, 2010, respondent FAA filed an answer to Case No. DA-CA-09-0061.  On February 3, 2010, respondent NATCA filed an unopposed motion to change the location and to postpone the hearing, seeking to move the hearing to Washington, D.C. On February 4, 2010, an order rescheduling the hearing to April 26, 2010, in Washington, D.C., was issued and on March 19, 2010, the hearing was indefinitely postponed to permit the parties to file motions for summary judgment.  

 

On April 5, 2010, the General Counsel filed a motion for summary judgment and a brief in support of the motion along with documents and affidavits, contending that Case No. SF-CO-09-0001 et al., and Case No. DA-CA-09-0061, were suitable for summary judgment. On April 8, 2010, NATCA filed an unopposed motion to extend time for response to the General Counsel’s motion and an order extending the time to respond was issued on April 9, 2010. That order gave the respondents until April 19, 2010, to respond to the General Counsel’s motion for summary judgment. On April 16, 2010, respondent NATCA filed a motion for summary judgment along with a memorandum, documents and a declaration from NATCA president Paul Rinaldi in support of its motion and in opposition to the General Counsel’s motion in Case No. SF-CO-09-0001 et al. On April 16, 2010, respondent FAA filed a response and cross motion for summary judgment along with a supporting brief and other exhibits in Case No. DA-CA-09-0061. On April 26, 2010, the General Counsel filed an opposition to respondents’ motions in the respective cases. In their motions for summary judgment, the parties agreed that there are no material facts in dispute and each contends that it is entitled to summary judgment as a matter of law.

 

 

            The Authority has held that motions for summary judgment filed under 5 C.F.R.

§ 2423.27 of its regulations serve the same purpose and are governed by the same principles as motions filed in the United States District Courts under Rule 56 of the Federal Rules of Civil Procedure. Dep’t of Veterans Affairs, Veterans Affairs Med. Ctr., Nashville, Tenn., 50 FLRA 220, 222 (1995); Dep’t of the Navy, U.S. Naval Ordnance Station, Louisville, Ky., 33 FLRA 3, 4-5 (1988) (NOS, Louisville), rev’d on other grounds, No. 88-1861 (D.C. Cir. Aug. 9, 1990). The motion is to be granted if the “'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” NOS, Louisville,33 FLRA at 4, quoting Rule 56(c). After reviewing the pleadings, affidavits, declarations, documents and exhibits submitted by the parties, I agree that there is no genuine issue of material fact with respect to the consolidated complaints before me. Accordingly, it is unnecessary to hold a hearing in these cases, and it is appropriate to decide the cases on the motions for summary judgment. The summary of the undisputed material facts, my conclusions of law, and recommendations are set forth below.

 

 

Respondent NATCA is a labor organization under 5 U.S.C. § 7103(a)(4) of the Statute and is the exclusive representative of a nationwide unit of employees appropriate for collective bargaining. (GC Exs. 1, 2, 3, 4). 

 

Respondent Federal Aviation Administration is an agency under 5 U.S.C. § 7103(a)(3) of the Statute. (GC Exs. 1, 2, 3, 4).

 

 

Although the parties were able reach agreement upon contract negotiations for a period of time after the implementation of the law, negotiation of a new contract proved unsuccessful in 2006, and on June 5, 2006, the FAA implemented changes pursuant to 49 U.S.C. § 40122 over the objection of NATCA. Although the new work rules were styled as a contract, the work rules set forth therein were unilaterally implemented by the FAA. (Declaration of Rinaldi and Ex. 4). Hereinafter, the work rules imposed by the FAA via unilateral action will be referred to as the “White Book”.

 

Article 83 of the White Book covers seniority and Section 1 of that article provides that seniority will be determined by NATCA. Section 2 of the article gave NATCA the authority to change seniority one (1) time during the life of the agreement. (White Book, p. 150 and Ex. 4 of Rinaldi Declaration; GC Ex. 15C).

 

The seniority policy for NATCA is contained in Article XV, Section 1 of the NATCA National Constitution. In 2004, delegates to NATCA’s convention adopted the following policy:

 

Section 1. The following shall be used to determine seniority for the National Air Traffic Controllers Association:

a)      Cumulative NATCA Bargaining Unit Time;

b)      First Tie Breaker: NATCA Bargaining Unit Time;

c)      Second Tie Breaker: EOD/FAA;

d)     Third Tie Breaker: SCD;

e)      Fourth Tie Breaker: Lottery. The lottery shall be determined at the local level.

 

For the purpose of facility release policies, seniority will be determined by facility time only as a bargaining unit member at that present facility. NATCA Bargaining Unit Time is defined as the total time in a given bargaining unit represented by NATCA and as defined by the FLRA petition for representation of that unit. Cumulative NATCA Bargaining Unit Time is derived by totaling all time together spent in each of the NATCA bargaining units.

 

(GC Ex. 15A)

 

Although unfair labor practice charges were filed over the seniority policy adopted at the 2004 national convention, none of those charges filed resulted in a Regional Director issuing a complaint. (Declaration of Rinaldi with Exs. 1 & 2).

 

At the NATCA national convention on September 12, 2008, delegates utilized the seniority change provision authorized by Article 83 of the White Book to adopt Resolution A08-19, which altered the seniority policy set forth in Article XV of their National Constitution by adding the following provision as Section 3 of that article:

           

“Any bargaining unit employee who accepted a supervisor/management job after June 6, 2006 . . . and returns to the bargaining unit will have his/her cumulative seniority date set to the day he/she returns.”

 

(GC Ex. 15A; Declaration of Rinaldi).

 

On September 19, 2008, NATCA President Patrick Forrey notified Robert Sturgell, Acting Administrator of the FAA that NATCA had altered the seniority policy at its most recent convention to include the language set forth in Section 3 of the NATCA constitution. (GC Ex. 16(a)). On September 24, 2008, union president Forrey sent a second letter to Administrator Sturgell that incorporated the language of Section 2, which had been omitted from the prior letter due to oversight. (GC Ex. 16(b)).

 

Upon receiving the notice of seniority policy modification from union president Forrey, the FAA implemented the change in policy as directed by NATCA. (FAA Response). Consistent with NATCA’s guidance, the FAA implemented the alteration of seniority policy by treating the date the bargaining unit employee returned to the bargaining unit as his or her new cumulative seniority date if the employee had accepted a supervisory or management position after June 6, 2006. Thus, said employees lost all seniority that had been accumulated prior to their return date. (GC Ex. 6-14).

 

      Charging Party Mark Santa Cruz was an employee under 5 U.S.C. § 7103(a)(2) and was in the bargaining unit represented by NATCA at the time the seniority policy set forth in the NATCA constitution was altered on September 12, 2008. Between April 15, 2007 and June 19, 2008, Mark Santa Cruz was a supervisor or management official under 5 U.S.C. § 7103(a)(2)(iii), returning to a bargaining unit position on June 20, 2008. As of September 11, 2008, Mark Santa Cruz’s cumulative NATCA seniority date was March 23, 1987. (GC Ex. 6).

 

Charging Party Steve Dunlap was not an employee under 5 U.S.C. § 7103(a)(2) and was not in the bargaining unit represented by NATCA at the time the seniority policy set forth in the NATCA constitution was altered on September 12, 2008. Between May 11, 2008 and September 27, 2008, Steve Dunlap was a supervisor or management official under 5 U.S.C. § 7103(a)(2)(iii), returning to a bargaining unit position on September 28, 2008. As of September 11, 2008, Steve Dunlap’s cumulative NATCA seniority date was May 5, 1986. (GC Ex. 7).

 

Charging Party Michael Mekara was an employee under 5 U.S.C. § 7103(a)(2) and was in the bargaining unit represented by NATCA at the time the seniority policy set forth in the NATCA constitution was altered on September 12, 2008. Between February 16, 2007 and February 6, 2008, Michael Mekara was a supervisor or management official under 5 U.S.C. § 7103(a)(2)(iii), returning to a bargaining unit position on February 7, 2008. As of September 11, 2008, Michael Mekara’s cumulative NATCA seniority date was January 27, 1991. (GC Ex. 8).

 

Charging Party Jim H. Hendrickson was an employee under 5 U.S.C. § 7103(a)(2) and was in the bargaining unit represented by NATCA at the time the seniority policy set forth in the NATCA constitution was altered on September 12, 2008. Between January 13, 2007 and May 9, 2007, Jim H. Hendrickson was a supervisor or management official under 5 U.S.C. § 7103(a)(2)(iii), returning to a bargaining unit position on May 10, 2007. As of September 11, 2008, Jim H. Hendrickson’s cumulative NATCA seniority date was June 12, 1989.  In October 2009, Jim H. Hendrickson accepted a permanent supervisory position with FAA and ceased to be in the bargaining unit represented by NATCA. (GC Ex. 9). 

 

Charging Party Scott D. DeVane was an employee under 5 U.S.C. § 7103(a)(2) and was in the bargaining unit represented by NATCA at the time the seniority policy set forth in the NATCA constitution was altered on September 12, 2008. Between June 10, 2007 and July 19, 2008, Scott D. DeVane was a supervisor or management official under 5 U.S.C. § 7103(a)(2)(iii), returning to a bargaining unit position on June 20, 2008. As of September 11, 2008, Scott D. DeVane’s cumulative NATCA seniority date was September 11, 1992. (GC Ex. 10).

 

Charging Party Julie Ireland was an employee under 5 U.S.C. § 7103(a)(2) and was in the bargaining unit represented by NATCA at the time the seniority policy set forth in the NATCA constitution was altered on September 12, 2008. Between August 5, 2007 and January 30, 2008, Julie Ireland was a supervisor or management official under 5 U.S.C. § 7103(a)(2)(iii), returning to a bargaining unit position on January 31, 2008. As of September 11, 2008, Julie Ireland’s cumulative NATCA seniority date was March 30, 1991. (GC Ex. 11).

 

 Charging Party David Johnson was an employee under 5 U.S.C. § 7103(a)(2) and was in the bargaining unit represented by NATCA at the time the seniority policy set forth in the NATCA constitution was altered on September 12, 2008. Between June 10, 2007 and April 26, 2008, David Johnson was a supervisor or management official under 5 U.S.C. § 7103(a)(2)(iii), returning to a bargaining unit position on April 27, 2008. As of September 11, 2008, David Johnson’s cumulative NATCA seniority date was October 22, 1989. (GC Ex. 12).

 

Charging Party Calvin Brown was an employee under 5 U.S.C. § 7103(a)(2) and was in the bargaining unit represented by NATCA at the time the seniority policy set forth in the NATCA constitution was altered on September 12, 2008. Between April 26, 2007 and November 28, 2007, Calvin Brown was a supervisor or management official under 5 U.S.C. § 7103(a)(2)(iii), returning to a bargaining unit position on November 29, 2007. As of September 11, 2008, Calvin Brown’s cumulative NATCA seniority date was a date in February 1996. (GC Ex. 13).

 

Charging Party William D. Aynes was an employee under 5 U.S.C. § 7103(a)(2) and was in the bargaining unit represented by NATCA at the time the seniority policy set forth in the NATCA constitution was altered on September 12, 2008. Between October 13, 2007 and April 13, 2008, William D. Aynes was a supervisor or management official under 5 U.S.C. § 7103(a)(2)(iii), returning to a bargaining unit position on April 14, 2008. As of September 11, 2008, William D. Aynes’ had approximately 20 years of seniority. (GC Ex. 14).

 

 

 

 

 

 

For several years after passage of the legislation, the FAA received sufficient appropriations from Congress to secure labor peace by agreeing to increase the salaries of air traffic controllers until they became one of the most well compensated position descriptions within the federal sector. However, a change in the Executive brought a change in FAA leadership, and in 2005, the FAA attempted to rein in the escalation of labor costs by offering new bargaining proposals that imposed a wage freeze upon the air traffic controllers represented by NATCA. When NATCA and the FAA were unable to reach an agreement upon the new proposals, the FAA unilaterally implemented its bargaining proposals in the form of the White Book issued on June 5, 2006, which, among other things, arrested the escalation of wages for air traffic controllers.^[2] Among the changes in pay implemented by the White Book was a phase out of Controller Incentive Pay.

 

Although unilateral implementation was contemplated and authorized by Congress when the FAA’s new personnel system was authorized in 1996, the FAA’s unilateral implementation of new work rules in response to the failure to reach a negotiated agreement infuriated NATCA and the bargaining unit employees they represented. As a result, any bargaining unit employee who worked as a part of management in any capacity after the date the new work rules were implemented became the subject of their wrath, scorn, spite, and ultimately their vindictive retribution. On September 12, 2008, the NATCA constitution was amended to change how seniority was calculated so that those bargaining unit employees who worked as a supervisor or manager after the work rules were implemented would lose their seniority.

 

 Under the terms of that change as interpreted by NATCA, no matter the length of the period and even if it was pursuant to a temporary promotion made by management as an assignment of work, any bargaining unit employee who left the unit to serve in a management position after the White Book was implemented lost all accumulated seniority earned prior to that point when the employee returned to the unit. Most importantly, the change was interpreted by NATCA as applicable to bargaining unit employees who had served in a management position after the White Book was issued, even if they had returned to the bargaining unit prior to the adoption of the policy change. As presented by the GC, one of the questions to be answered by this decision is whether this retroactive application of the change to seniority policy constitutes an unfair labor practice because it violated the exclusive representative’s duty of fair representation.

 

For the reasons outlined below, I conclude that NATCA committed unfair labor practices when it retroactively altered the seniority date for bargaining unit employees who worked in management positions after June 6, 2006, but returned to the bargaining unit prior to the time the seniority policy in the NATCA constitution was changed on September 12, 2008. Furthermore, the limits of this decision should not be interpreted as an agreement or concurrence with the GC’s contention that a prospective application of a change in seniority policy that punished bargaining unit employees for temporarily serving in management positions pursuant to the exercise of a management right would survive review. As explained in the discussion related to charging party Jim H. Hendrickson set forth below in Section C, the language of this particular change and the circumstances surrounding an employee’s performance of management duties are considerations that make a blanket declaration of approval for prospective application of such a punitive provision improper. Within the federal sector, a union’s ability to determine seniority must be assessed in conjunction with its impact upon management’s right to assign employees and work and while unions are given substantial latitude to determine seniority within the bargaining unit they represent, seniority provisions that interfere with management’s right to direct work and assign employees cannot be negotiated. Fraternal Order of Police, Lodge 1F (R.I.) Federal, 32 FLRA 944 (1988)(FOP). 

 

In reviewing the complaint based upon the charges made against NATCA, it is important to note that each charge was filed by a bargaining unit employee who had his or her seniority date reset to a later date as a result of working in a management position pursuant to a temporary promotion. Such migration between working as a bargaining unit employee and working in a management position is not uncommon in the federal sector and is but one of the ways the federal sector differs from the world of labor relations in the private sector. Gaining experience as a manager in a temporary capacity serves to benefit both the agency and the employee, giving each an opportunity to see if the employee is capable of performing as a manager and likes supervisory work, all while assisting the agency in the completion of its mission.

 

In federal labor law, the conflict between seniority provisions and management’s right to direct work and assign employees frequently arises as a negotiability dispute when a union tenders a bargaining proposal that would require management to use seniority whenever a position has to be filled via a temporary promotion. The Authority has repeatedly found such proposals nonnegotiable because they interfere with management’s right to assign work. FOP, 32 FLRA at 944; Am. Fed. of Gov’t Employees, AFL-CIO, Int’l Council of U.S. Marshals Serv. Locals, 8 FLRA 268 (1982); Int’l Org. of Masters, Mates, and Pilots, 11 FLRA 115 (1983). While the Authority has held that a union may not insist that seniority be blindly used in  making temporary promotions, it has ruled that seniority based assignments are within the duty to bargain and enforceable so long as the agency retains the right to determine employee qualifications. Am. Fed. of Gov’t Employees, AFL-CIO, Local 987, 35 FLRA 265 (1990); Am. Fed. of Gov’t Employees, AFL-CIO, Local 738, 33 FLRA 380 (1988)(Combined Arms Center). In the Combined Arms Center case, the Authority held that a proposal which required the agency to reassign either a volunteer or the least senior employee from among those in positions affected by a realignment of an engineering technician position from one division to another was nonnegotiable. The Authority found that the proposal directly interfered with management's right to assign employees because it did “not allow the Agency to make any judgment on the qualifications of those employees, relative to each other or to other employees, to perform the work of the position[.]” Id. at 382.

 

In the case at bar, Article 43 of the White Book, covers temporary promotions and requires the FAA to solicit qualified volunteers from the facility when a temporary promotion will be needed. Of course, after NATCA passed a constitutional amendment requiring that anyone accepting a supervisor or management job have his or her cumulative seniority date reset, it could be argued that seeking volunteers would be an exercise in futility. Perhaps the better question would be what happens when no one volunteers, but a unit employee is detailed to the position as an assignment of work pursuant to management’s rights? Or, what if the employee so detailed is a union representative because there were no volunteers as contemplated by Section 3 of Article 43? While answering such questions is beyond the purview of this decision, existence of such questions, like the imprecise language used in the provision adopted at the convention, demonstrates the lack of forethought given to this vindictive abuse of power exercised against bargaining unit employees who did nothing more than assist the agency in achieving its mission for a flying public whose tax dollars fund FAA operations. Allowing those employees to suffer punishment in the form of lost seniority merely because they volunteered for agency assignments of work using the process originally established through the negotiation of Article 43 by NATCA would be inconsistent with the requirement of an effective and efficient Government. 5 U.S.C. § 7101. A union’s latitude to determine seniority within the federal sector does not permit it to establish seniority policies that encroach upon and eviscerate the management rights set forth in the Statute and a union violates its duty of fair representation when a seniority policy singles out for punishment, only those bargaining unit employees who leave the unit to assist the agency by temporarily filling a vacant management position.

 

In the federal sector, an exclusive representative owes a duty of fair representation to all employees in the bargaining unit it represents without regard to labor organization membership, but owes no duty to one who is not in the unit. Nat’l Air Traffic Controllers Assoc., MEBA/AFL-CIO, 55 FLRA 601 (1999)(NATCA I). The duty of fair representation imposed by the Statute in § 7114(a)(1) incorporates into federal labor relations the duty of fair representation first recognized for unions in the private sector. NATCA I, 55 FLRA at 604. However, unlike the private sector which is governed by the National Labor Relations Act, within the federal sector, there is no private cause of action for such a violation. Only the General Counsel of the FLRA may bring an unfair labor practice for a violation of that duty. Karahalios v. NFFE, Local 1263, 109 S.Ct. 1282 (1989).  In this case, it is the General Counsel for the FLRA who contends that NATCA violated its duty of fair representation. However, the GC contends that NATCA violated its duty not in the way it changed its seniority policy, but in the retroactive manner in which it applied the change to punish bargaining unit employees for actions undertaken and completed prior to their knowing that their actions would result in draconian adjustments to their seniority date.

 

Unlike the private sector, where an employee typically remains in the bargaining unit unless he or she becomes a permanent part of management, an employee’s movement between bargaining unit and non-bargaining unit positions is a common practice in the federal sector. It is well settled under the Statute that when a bargaining unit employee is promoted to a supervisory position, even on a temporary basis, the employee moves outside the bargaining unit, the collective bargaining agreement ceases to be applicable, and the withholding of union dues is not permitted. Internal Revenue Serv., Fresno Serv. Ctr., Fresno, Cal., 7 FLRA 371 (1981)(Fresno); Int’l Assoc. of Machinists and Aerospace Workers, Lodge 2424, 25 FLRA 194 (1987) (IAM&AW). Of the nine individuals who filed an unfair labor practice charge against NATCA over their loss of accumulated seniority, eight were no longer serving in a detail to a temporary promotion as a manager or supervisor pursuant to a management assignment of work and had returned to the bargaining unit at the time NATCA enacted the change in its seniority policy. These eight bargaining unit employees were owed a duty of fair representation by NATCA at the time the union’s constitution was amended on September 12, 2008. The charge filed by Steven Dunlop, the one charging party who had not returned to the unit at the time the constitution was amended is discussed separately in Section B below.

 

With respect to the eight charging parties to whom a clear duty of fair representation was owed by NATCA because they were working in the bargaining unit when the change in seniority policy was enacted, the standard for determining whether an exclusive representative has breached its duty of fair representation under § 7114(a)(1) of the Statute was set forth by the Authority in Nat’l Fed. of Fed. Employees, Local 1453, 23 FLRA 686 (1986)(Local 1453). Initially, it should be noted that the change in seniority policy adopted at the NATCA convention did not limit its scope to those bargaining unit employees who were not members of the union. Thus, union membership was not a factor in the application of the change.  In Local 1453, the Authority held that where union membership is not a factor in the action under review, the test is:

 

“whether the union deliberately and unjustifiably treated one or more bargaining unit employees differently from other employees in the unit. That is, the union’s actions must amount to more than mere negligence or ineptitude, the union must have acted arbitrarily or in bad faith, and the action must have resulted in disparate or discriminatory treatment of a bargaining unit employee.”

 

Id. at 691.

 

This standard was reaffirmed by the Authority in U.S. Air Force, Loring Air Force Base, Limestone, Me., 43 FLRA 1087, 1094 (1992)(Loring), and it is the test against which the actions of NATCA must be measured.

 

 

 

 

1)      were solicited by a process originally negotiated by NATCA;

2)      volunteered, were found qualified and selected for the detail by the FAA;

3)      served in the supervisory position to which they were temporarily promoted; and

4)      returned to the bargaining unit with their cumulative seniority intact.

 

It was only later, on September 12, 2008, that NATCA delegates voted to change the seniority policy so that those who “accepted a supervisor/management after June 6, 2006 [the date the FAA implemented the White Book] and returns to the bargaining unit will have his/her cumulative seniority date set to the day he/she returns.”^[3]

 

 

Had NATCA interpreted the alteration of its seniority policy as one that prospectively mandated a resetting of seniority for bargaining unit employees who returned to the bargaining unit after accepting a permanent position as a supervisor or manager, an argument that it falls within its right to determine seniority would be present even within the unique nature of personnel law covering the federal sector. However, by interpreting the alteration as a change that applied retroactively to bargaining unit members who volunteered for a temporary promotion given as an assignment of work, implementation of the change in seniority policy unjustifiably treated one or more bargaining unit employees differently from other employees in the unit and constituted an unfair labor practice under the precedent established by the Authority in Local 1453 and Loring, as contended by the GC.    

 

To see the folly, error and lack of foresight present by NATCA’s interpretation of the language adopted by the convention delegates, one only has to follow the logical consequences of its application. If, as NATCA asserts, the new seniority policy requires that any bargaining unit employee who serves in supervisory or management position after June 6, 2006, have his or her seniority date reset to the date he or she returns to the unit, this punitive result would ensure that no bargaining unit employee would volunteer for a temporary promotion under Article 43 of the White Book. However, that does not mean that supervisory positions would remain unfilled. Within the federal sector, filling a vacant supervisory position on a temporary basis would be an exercise of management’s right to assign employees and work even when there are no volunteers. In fact, in accordance with Section 3 of Article 43 and consistent with Authority precedent, a union representative may be detailed into a temporary promotion to a supervisory position if no there are no other qualified bargaining unit employees available. Under its interpretation, NATCA has enacted a provision that would result in punishment of a bargaining unit employee who did not volunteer for the temporary promotion, but accepted management’s assignment thereof in lieu of discipline or resignation, because his or her seniority would be reset upon returning to the unit. While harshly punishing a bargaining unit employee for crossing the line between union and management may have some legitimate purpose within the private sector, it has no place in the federal sector when it discourages an employee from assisting an agency in the completion of its mission on behalf of the taxpayers who fund its operations, or punishes bargaining unit employees for accepting and performing an assignment of work lawfully given. Requiring a bargaining unit employee to choose between accepting an assignment of work he has been given and losing his seniority for doing so, or facing discipline for declining to perform the work in order to preserve his seniority, is a choice that is unjustifiable and indefensible, and NATCA violates its duty of fair representation by implementing a seniority policy that creates such a choice for its bargaining unit employees.

 

In defense of its action, NATCA cites several cases drawn from the private sector which hold that unions are entitled to a “wide range of reasonableness” when reviewing the exercise of its duty of fair representation while negotiating collective bargaining agreements and argues that a breach can only be found when a provision “can be fairly characterized as so far outside a wide range of reasonableness that it is wholly irrational and arbitrary.” NATCA also contends that Congress did not intend that federal agencies sit in judgment on specific terms and conditions of negotiated collective bargaining agreements. While the cases cited by NATCA stand for such legal principles, the legal precedent provided by those cases is inapplicable because the provision at bar was not achieved through collective bargaining. Rather, this provision was passed by the union as an amendment to its own constitution. Thus, it is appropriate for a federal agency given responsibility for carrying out the purpose of the Statute to assess the provision, and the provision is not entitled to the same latitude given to one developed within the give and take of adversarial negotiation.

 

When assessing whether a union violated its duty of fair representation by imposing a provision upon the bargaining unit employees it represents, there is a substantial difference between provisions accepted as part of collective bargaining and those imposed by the union’s own unilateral action. Had the union accepted a brutally punitive seniority provision that applied to all bargaining unit employees without discriminating in return for something else obtained at the bargaining table, justification for a wide range of reasonableness would exist. However, the latitude afforded seniority provisions that are negotiated would be misplaced if applied to a seniority provision enacted by the union on its own volition which punished only a portion of the bargaining unit employees who left the unit. Thus, the cases cited by NATCA are unpersuasive when assessing its conduct in adopting a change in seniority policy that singled out only those bargaining unit employees who temporarily left the unit for management positions.

 

 

The provision of the NATCA Constitution passed on September 12, 2008, which spawned these ten cases reads as follows:

 

Any bargaining unit employee who accepted a supervisor/management job after June 6, 2006 and returns to the bargaining unit will have his/her cumulative seniority date set to the day he/she returns. (Emphasis added).

 

Since its passage, NATCA has interpreted the language of this change to its seniority policy to require that the cumulative seniority date of bargaining unit members who served in management positions after June 6, 2006 be reset to the date they returned to the unit, even when they served in such a position pursuant to management’s right to assign the employee work under a temporary promotion and even if they returned to the bargaining unit prior to the date this change was enacted.

 

 

 

 

1 a: a piece of work; esp: a small miscellaneous piece of work undertaken on order at a stated rate.

 

The use of such vernacular in a world of federal personnel regulations replete with descriptive terms of art like detail, position and temporary promotion, makes this provision all the more difficult to interpret and apply. The failure to distinguish and make clear which supervisory or management “jobs” would result in a loss of seniority demonstrates the lack of consideration given to the change in seniority that was made and gives reason to question whether the delegates fully understood the meaning of the provision they approved. Had the provision clearly indicated that a loss of seniority would be levied in response to details and temporary promotions assigned by management in addition to being levied against employees who accepted a permanent position with management, NATCA’s interpretation would be supported. Whether the change would have been adopted were such outcomes made clear is unknown, but the plain language of the provision that was passed appears to apply only to those employees who accepted a permanent position rather than those who were assigned a temporary detail or promotion.

 

 

Given the present and prospective application that is implied by the use of the present tense in describing when a return to the bargaining unit would require an employee’s seniority to be reset, NATCA’s interpretation that the constitutional change permitted and required retroactive application is unjustifiable. In using only the present tense to establish when a bargain unit employee’s return would result in an adjustment of seniority, the meaning of the language as drafted and approved by the delegates is clear and supports only a prospective application. To make it clear that the change in seniority policy mandated an adjustment of seniority for employees who previously returned to the unit from temporary detail would have required nothing more than the use of both returned and returns rather than the singular use of the present tense returns. The consequences for failing to incorporate language that made the retroactive nature of the provision clear must fall onto NATCA, who drafted and submitted Resolution A08-19 to the delegates for constitutional amendment. As discussed supra, if the retroactive application of the provision had been clear, its application to these eight charging parties would still violate the union’s duty of fair representation because they were the only bargaining unit employees punished for leaving the unit. However, the fact that retroactive application was not clearly authorized by the language of the provision that changed the seniority policy and is inconsistent with the present tense language that appears in the provision further demonstrates why a retroactive application of the change to these eight charging parties was unjustified and violates the union’s duty of fair representation.

 

 

            A union owes a duty of fair representation only to the employees who are in the bargaining unit for which it is the exclusive representative. NATCA I, 55 FLRA at 601. A union owes no duty of fair representation to an employee who is in a supervisory position. McTighe v. Mechanics Educ. Soc’y of Am., Local 19, 772 F.2d 210, 213 (6^th Cir. 1985); Cooper v. General Motors Corp., 651 F.2d 249, 250 (5^th Cir. 1981). On September 12, 2008, the date NATCA changed its seniority policy by amending its constitution, Steven Dunlap was serving as a manager at the FAA’s Los Angeles Air Route Traffic Control Center under a temporary promotion that started on May 11, 2008 and terminated on September 27, 2008. Under Authority precedent, a temporary promotion or detail into a management position removes an employee from the bargaining unit. Fresno,7 FLRA at 371; IAM&AW, 25 FLRA at 194. Thus, at the time the NATCA altered its seniority policy and at the time it notified the FAA that its interpretation of the alteration required that any bargaining unit employee have his or her cumulative seniority date reset, Dunlap was not an employee assigned to the bargaining unit. Because Dunlap was not a bargaining unit employee at the time NATCA passed and implemented its new seniority policy, NATCA did not owe and could not violate a duty of fair representation with respect to Dunlap.

 

            In reaching this conclusion, it should be noted that the General Counsel’s consolidated complaint and brief in support of its motion for summary judgment asserted that Dunlap’s seniority date was dropped to September 28, 2008, upon implementation of NATCA’s September 12, 2008, retroactive seniority policy. More specifically, the consolidated complaint cited the adoption of the policy on September 12, 2008, and the letter to the FAA implementing the policy on September 19, 2008, as the dates upon which NATCA failed to comply with its duty to fairly represent employees in the bargaining unit under 5 U.S.C. § 7114 (a)(1). Because charging party Dunlap was not in the bargaining unit at the time the acts identified as violations in the General Counsel’s complaint occurred, NATCA did not violate its duty of fair representation with respect to charging party Dunlap.

 

            Charging party Hendrickson initially returned to the bargaining unit prior to the passage and implementation of the seniority change by NATCA. Hendrickson was detailed to a temporary supervisory position from January 13, 2007, until May 9, 2007, thus, in September 2008, he was a bargaining unit employee to whom the union owed a duty of fair representation and that duty was violated when his cumulative seniority date was retroactively reset to May 10, 2007, as a result of the change adopted and implemented late September 2008. 

 

 

 

 

Of course, that would require that the parties actually engage in collective bargaining and that the agency not be so oblivious to the impact that seniority policy can have upon its recruitment and the exercise of its management rights that it completely foregoes its ability to protect against such negative consequences. In this case, such failure is all the more egregious because the FAA gave NATCA carte blanche to determine seniority not through negotiation, but through its own unilateral imposition of work rules. As a result of the FAA’s largesse, NATCA was free to make whatever change to seniority it liked and had they not violated the duty owed to their bargaining unit employees, the FAA would be powerless to do anything about the changes in seniority that were not illegal. As Authority precedent makes clear, within the federal sector, seniority is not a matter solely within the province of the union. The fact that an agency so completely abdicated its responsibility to exercise oversight and abandon its ability to challenge seniority policies that infringed upon its management rights and did so via unilateral surrender is difficult to understand. But when applied prospectively to only those bargaining unit employees who accept a permanent management position outside the unit, the cumulative seniority cancellation provision enacted by NATCA’s seniority policy change was not challenged by the GC as a violation of the duty of fair representation and charging party Hendrickson is subject to the reset of seniority that the policy mandates based upon his subsequent departure from the bargaining unit.

 

 

As a remedy for violating its duty of fair representation, the GC contends that NATCA should be ordered to rescind the changes in seniority that were made pursuant to a retroactive application of seniority policy that was modified on September 12, 2008. After the charging parties’ cumulative seniority is restored, the GC requests that NATCA be required to inform the FAA of the newly corrected seniority dates and that the FAA be required to rebid any shifts, schedules, or leave are impacted by the correction of seniority dates. In addition, without identifying the employees or citing any particular evidence, the GC alleges that, “evidence offered in support of this motion which establishes that employees suffered monetary harm as a result of implementation of NATCA’s September 12, 2008 retroactive seniority policy” should result in said employees being made whole for any loss of pay, benefits, or differentials suffered as a result of the policy change.

 

For the reasons set forth below, it is recommended that NATCA be ordered to restore the cumulative seniority date of the eight charging parties who were in the bargaining unit at the time the seniority policy was changed and who had their seniority date retroactively reset to a date that preceded adoption of the seniority change. Said restoration shall include all cumulative bargaining unit time earned through the date of the restoration, and upon restoration the total cumulative seniority time accrued by the eight charging parties shall be used in all subsequent determinations wherein seniority is used by NATCA or the FAA.

 

Because the GC argues that the provision that was approved at the NATCA convention on September 12, 2008, violated the duty of fair representation only when the change was applied retroactivity, the GC’s request that NATCA be directed to ensure that all of its bargaining unit employees are credited with the accumulated seniority they would have had absent the passage and implementation of Resolution A08-19 is inappropriate. Under the theory of the case presented by the GC, the union’s duty of fair representation was not violated with respect to all bargaining unit employees adversely affected by this change in seniority policy. As the GC argued that only those who experienced the adverse impact as a result of retroactive application had the duty owed to them infringed, that is the only class of bargaining unit employees entitled to a remedy under this decision. Thus, ordering a corrective action for all employees adversely affected by the change would be inappropriate and this recommended decision requires that the seniority be restored only for those eight charging parties who were in the bargaining unit when the change was made and who had their seniority altered retroactivity for serving in a temporary promotion to management that ended prior to the time the change in seniority policy was made.

 

The GC also seeks back pay and makes a general assertion that evidence offered in support of its motion supports such an award, citing Nat’l Fed. of Fed. Employees, Local 1827, 49 FLRA 738 (1994)(Bratton). Although Bratton involved a change in seniority policy and the Authority ordered a make whole remedy that included loss of pay, benefits or differentials in response to an improper change, the facts of Bratton can be distinguished and demonstrate that the broad relief the Authority granted in that case is not appropriate for the present case. In Bratton, the union used a poll to determine the changes that were made in seniority policy but prevented any bargaining unit employee who was not a member of the union from voting in the poll. Thus, the Authority found that the union violated the duty of fair representation by improperly using union membership. As the GC points out in its brief, union membership is not an issue in the present matter.

 

In addition to making a change in seniority policy that was not based upon union membership, the facts of this case demonstrate that the seniority changes that were made did not always result in lost wages, benefits or differentials. In some cases, the charging parties lost the ability to avoid working on Saturdays and Sundays, thus, they earned premium pay when they would not have otherwise, had they been free to choose weekday work. (Affidavits of Ireland, Dunlap, DeVane, Mekera). Some employees lost the ability to avoid holiday work and thus earned premium pay (Affidavit of Santa Cruz, Dunlap). While some complain of not being able to work on Sunday when premium pay was available (Affidavit of Brown) or not being able to work overtime on holidays (Affidavits of Johnson and Mekara), it is not clear how many or which premium days they would have chosen to work if they had the seniority to do so. In fact, charging party Brown’s affidavit complains about not being able to work Sundays in one scheduling period and complains about having to work weekends in the next scheduling period. (Brown’s Affidavit). As the facts in this case demonstrate, seniority was used by some to avoid shifts that would earn premium pay, was used by others to deliberately select shifts where premium pay was available, and was used by some to do both. In short, determining after the fact, who would have worked when would be an exercise in speculation, especially when those decisions would also be impacted by the choices of other bargaining unit employees with similar seniority. When the loss of pay is nothing more than speculation, the award of such is improper. U.S. Dep’t of Health and Human Serv., Soc. Sec. Admin., Baltimore, MD, 37 FLRA 278 (1990). Therefore, it is concluded that the GC’s request for make whole relief in the form of lost wages, benefits and differentials is not supported by the evidence in the record. Although the award of lost wages, benefits and differentials is not supported by the record, were it possible to ascertain such damages, there would be no need to apportion them between Respondents because as discussed below, the FAA did not violate the Statute and thus, committed no unwarranted personnel action. In that regard, it should be noted that most cases wherein a union is required to pay a portion of damages that resulted from the union’s violation of its duty to fairly represent involve a situation where the agency’s unwarranted personnel action prompted an obligation under the Back Pay Act that was enlarged by the union’s improper failure to represent the employee in the matter. Thus, the precedent of Bratton is an exception, rather than the rule and its precedent should not be expanded beyond those situations where the union’s duty of fair representation was violated by discriminating on the basis of union membership.

 

 

 

 

 

            The question presented by the complaint the General Counsel issued against the FAA is an odd one. In essence, the complaint accuses the FAA of an unfair labor practice for not protecting bargaining unit employees from the evils perpetrated upon them by their exclusive representative when it unilaterally changed the seniority policy that applied to them. In the words of the GC, “…an employer cannot stand idly by and allow the union to implement a policy which so blatantly discriminated against a group (of) bargaining unit employees.” Aside from the fact that a seniority policy will always involve discrimination between groups of bargaining unit employees, placing such paternalistic expectations upon an employer eviscerates the exclusive recognition and representation rights and duties provided under the Statute, and invites activity that is precluded by § 7116 (a)(3).  While there are plenty of reasons to castigate the FAA for its part in creating this federal labor relations debacle, its implementation of NATCA’s change in seniority policy is not one of them. Given that the FAA unilaterally surrendered the right to negotiate over any change to seniority policy NATCA proposed, the FAA gave the union free rein to make any change the union liked. Having given away the seniority farm, the FAA’s implementation of NATCA’s unilateral change did not violate the Statute and the General Counsel’s assertions to the contrary are without merit.

 

 

While the Authority also found the Air Force in violation of Statute for its role in the settlement distribution scheme, there are differences which distinguish Loring from the present case. First, in Loring the Air Force retained control and oversight over the distribution of the settlement by requiring the union to submit the distribution plan for review and approval. While the FAA’s action with respect to seniority in this case is subject to question as a matter of management practice, there is no doubt that when it unilaterally implemented the conditions of employment set forth in the White Book, it retained no element of control and oversight over the seniority policy determined by NATCA. In fact, upon implementing the White Book, the only limit placed upon NATCA in the determination of seniority was that the policy could be changed only once during the duration of the White Book. Therefore, the level of involvement which the Authority found on the part of the Air Force in Loring is not present when assessing the actions of the FAA in this case.

 

A second reason to distinguish Loring from the case at bar is the fact that not only did the Air Force actively participate in the development of the offending distribution scheme, the scheme patently violated the union membership prong of the duty of fair representation standard. In this case, the union membership element of the standard is not present and the FAA was not charged with a violation of § 7116(a)(2). Thus, even if it had retained the ability to exercise some control and oversight upon the seniority policy by requiring changes to be negotiated, an easy to identify case of discrimination on the basis of union membership was not present for the FAA to recognize and use as justification for refusing to implement the change.

 

In its attempt to hold the FAA responsible for the unjustified and discriminatory seniority policy adopted by NATCA, the GC argues that a reasonable employer would have recognized the change in seniority policy as unjustified and discriminatory and would not have permitted NATCA to implement it. However, the GC’s argument that the policy change was a patently obvious violation of the union’s duty of fair representation is belied by its own theory as to what constituted a violation in this case.

 

As argued by the GC, the seniority provision adopted by NATCA violated the Statute only when it was applied to bargaining unit employees in a retroactive manner. In other words, the GC’s theory of the case dances upon the head of a retroactive pin, yet the GC contends that any reasonable employer should share its keen vision for pinhead pirouettes and refuse to honor a contractual obligation whenever a union violates its duty of representation in the course of exercising its rights under the contract. Should the agency fail to stop the union, it faces an unfair labor practice complaint for not refusing to honor the contract. Aside from turning the principles of collective bargaining and exclusive representation upon their head, the foolhardy nature of encouraging such action by punishing agencies when they don’t protect bargaining unit employees from their representative is demonstrated by outlining additional viable reasons an agency could have used to resist the implementation of this change in seniority policy. Of course these additional reasons, in the eagle sharp eyes of the General Counsel, would not constitute violations of the duty of representation. Thus, under the GC’s theory, these additional reasons would provide no defense to the FAA for refusing to implement the change NATCA adopted. The additional and equally viable reasons the FAA could have relied upon for refusing to implement the change in seniority policy include: 

 

1)      The language of the provision adopted on September 12, 2008, applies only to those who accept a permanent job and not to bargaining unit employees who are temporarily detailed to a management or supervisory position.

 

2)      The language of the provision adopted on September was unjustified and discriminatory because it punished only those bargaining unit employees who left the unit for management positions at FAA but not those who left the unit for other details or positions. 

 

3)      The application of the change in seniority provision to those who volunteered for a temporary promotion pursuant to a process established by NATCA was unjustified.

 

4)      The language of the provision adopted on September 12, 2008, was inconsistent with and did not support the interpretation NATCA provided for its implementation.

 

Through its pursuit of an unfair labor practice complaint against the FAA, the GC encourages agencies to engage in second guessing of a union’s compliance with its duty to provide fair representation. However, as this list indicates, valid reasons for challenging the union’s action in this case are not limited to the retroactive application reason that the GC ultimately found persuasive in determining that a violation of the duty had occurred. Encouraging agencies to make their own determination about a union’s compliance with its duty of fair representation in advance of the GC’s review of the matter only invites disputes and rancor and is not conducive to effective and efficient labor relations in the federal sector.

 

As the FAA contends, the GC’s complaint places them in the position of either implementing a change in seniority policy and being found in violation when the GC determines after the fact that the union violated its duty of fair representation in making the change, or, refusing to implement the change and having the refusal prompt a grievance and arbitration for failure to comply with the seniority article. While the Authority held in Loring that both a union and activity could commit an unfair labor practice as a result of a union’s failure to honor its duty of fair representation, to effectively and efficiently carry out the purpose of the Statute, that precedent should be limit to those situations where a union engages in a patent violation of the duty on the basis of union membership and not those where the violation of the duty is a matter of interpretation where legitimate alternative reasons exist upon which reasonable minds can differ. Hindsight is 20/20, and while it may be clear for all to see now, when there was no clear precedent to indicate that the changes NATCA made to its seniority policy violated the duty of fair representation, the FAA did not violate the Statute by implementing those changes simply because it could not glean with laser like focus the head of the pin that the GC found compelling. Therefore, the complaint against the FAA should be dismissed.

 

For the reasons outlined above, I recommend that the Authority Grant the General Counsel’s Motion for Summary Judgment in Case Nos. SF-CO-09-0001, AT-CO-09-0040, CH-CO-09-0076, CH-CO-09-0111, CH-CO-09-0304, CH-CO-09-031, DA-CO-09-0014 and DE-CO-09-0018; Grant Respondent NATCA’s Motion for Summary Judgment in Case No. SF-CO-09-0030; and Grant Respondent FAA’s Motion for Summary Judgment in Case No. DA-CA-09-0061.

 

            Accordingly, it is recommended that the Authority adopt the following Order:

 

 

 

 

Pursuant to §2423.41 of the Authority's Rules and Regulations and § 7118 of the Federal Service Labor‑Management Relations Statute (the Statute), the National Air Traffic Controllers Association, AFL-CIO (Respondent NATCA) shall:

 

1.  Cease and desist from:

 

(a) Failing to perform its duty of fairly representing bargaining unit employees by discriminating against bargaining unit employees who worked in management positions at the FAA after June 6, 2006, by resetting their cumulative seniority to the date they returned to the unit when said return preceded the change in seniority policy enacted on September 12, 2008.

 

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.

 

 (c) 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 Federal Service Labor-Management Relations Statute:

 

(a) Represent the interests of all employees in the exclusive bargaining unit that the Union represents without discrimination and without regard to labor organization status or membership.

 

(b) Restore the cumulative seniority date of the seven (7) bargaining unit employees (Santa Cruz, Mekara, DeVane, Ireland, Johnson, Brown, and Aynes) who were in the unit at the time the Union violated its duty of fair representation and who remain in the bargaining unit.

 

(c) Post at the National Air Traffic Controllers Association, AFL-CIO, business office and in normal meeting places, were bargaining 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 the President, National Air Traffic Controllers Association,

AFL-CIO, 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 §2423.30 of the Authority's Rules and Regulations, notify the Regional

Director, San Francisco Region, 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.

 

            It is Ordered that the complaints in Case Nos. SF-CO-09-0030 and DA-CA-09-0061 be, and hereby are, dismissed.

 

Issued, Washington, D.C., May 5, 2011.

 

 

 

 

                 _______________________________                                                                                                                      CHARLES R. CENTER

                 Chief Administrative Law Judge

 

The Federal Labor Relations Authority has found that the National Air Traffic Controllers Association, AFL-CIO (NATCA), violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this Notice.

 

 

WE WILL NOT fail to fairly represent bargaining unit employees by discriminating in the application of seniority policy by retroactively applying said policy only to bargaining unit employees who work in supervisory or management positions for the FAA.

 

WE WILL NOT interfere with, restrain, or coerce bargaining unit employees who are represented by the NATCA in the exercise of their rights to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.

 

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Statute.

 

WE WILL represent the interests of all bargaining unit employees represented by NATCA without discrimination and without regard to labor organization status or membership.

 

WE WILL restore the cumulative seniority date of the seven bargaining unit employees (Santa Cruz, Mekara, DeVane, Ireland, Johnson, Brown, and Aynes) who were in the unit at the time we violated the duty of fair representation by discriminating between bargaining unit employees who left the unit to work as supervisors or managers for the FAA and those employees who left the unit for other reasons.

 

 

                                                                                                (NATCA President)                                                                                           

 

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, San Francisco Region, Federal Labor Relations Authority, and whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: 415-356-5000.

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^[1] The relevant language of 5 U.S.C. § 7102 states: “Each employee shall have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal ….” Thus, the “without free of reprisal” language in paragraph 17 of the complaint appears to be an error that inaccurately restates § 7102.

^[2] While some have characterized them as “economic take-backs, in the name fiscal prudence that constituted unprecedented draconian reductions in compensation, bordering on the unconscionable”, given the current federal pay freeze they were more prescient than draconian. FAA and NATCA Mediation Panel Opinion, August 6, 2009. (NATCA Ex. 3).