NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION, AFL-CIO and MARK SANTA CRUZ,

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

MEMORANDUM

DATE: May 5, 2011

TO:

The Federal Labor Relations Authority

FROM:

CHARLES R. CENTER

Chief Administrative Law Judge

SUBJECT:

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, AFL-CIO

RESPONDENT

AND

MARK SANTA CRUZ, An Individual

STEVEN DUNLAP, An Individual

MICHAEL MEKARA, An Individual

JIM H. HENDRICKSON, An Individual

SCOTT D. DEVANE, An Individual

JULIE IRELAND, An Individual

DAVID JOHNSON, An Individual

CALVIN BROWN, An Individual

WILLIAM D. AYNES, An Individual

Case Nos. SF-CO-09-0001

SF-CO-09-0030

AT-CO-09-0040

CH-CO-09-0076

CH-CO-09-0111

CH-CO-09-0304

CH-CO-09-0313

DA-CO-09-0014

DE-CO-09-0018

CHARGING PARTIES

AND

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

RESPONDENT

AND

CALVIN BROWN, An Individual

Case No.

DA-CA-09-0061

CHARGING PARTY

Pursuant to section 2423.34(b) of the Rules and Regulations 5 C.F.R. §2423.34(b),

I am hereby transferring the above case to the Authority. Enclosed are copies of my Decision,

the service sheet, and the transmittal form sent to the parties. Also enclosed are

the cross motions for summary judgment, exhibits and any briefs filed by the parties.

Enclosures


UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, AFL-CIO

RESPONDENT

AND

MARK SANTA CRUZ, An Individual

STEVEN DUNLAP, An Individual

MICHAEL MEKARA, An Individual

JIM H. HENDRICKSON, An Individual

SCOTT D. DEVANE, An Individual

JULIE IRELAND, An Individual

DAVID JOHNSON, An Individual

CALVIN BROWN, An Individual

WILLIAM D. AYNES, An Individual

Case Nos. SF-CO-09-0001

SF-CO-09-0030

AT-CO-09-0040

CH-CO-09-0076

CH-CO-09-0111

CH-CO-09-0304

CH-CO-09-0313

DA-CO-09-0014

DE-CO-09-0018

CHARGING PARTIES

AND

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

RESPONDENT

AND

CALVIN BROWN, An Individual

Case No. DA-CA-09-0061

CHARGING PARTY

NOTICE OF TRANSMITTAL OF DECISION

The above-entitled case having been heard by the undersigned Chief Administrative Law

Judge pursuant to the Statute and the Rules and Regulations of the Authority, the undersigned

herein serves his Decision, a copy of which is attached hereto, on all parties to the proceeding on

this date and this case is hereby transferred to the Federal Labor Relations Authority pursuant to

5 C.F.R. §2423.34(b).


2

PLEASE BE ADVISED that the filing of exceptions to the attached Decision is governed

by 5 C.F.R. §§2423.40-41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and 2429.27.

Any such exceptions must be filed on or before JUNE 6, 2011, and addressed to:

Office of Case Intake & Publication

Federal Labor Relations Authority

1400 K Street, NW., 2nd Floor

Washington, DC 20424-0001

__________________________________

CHARLES R. CENTER

Chief Administrative Law Judge

Dated: May 5, 2011

Washington, D.C.



2

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C.

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, AFL-CIO

RESPONDENT

AND

MARK SANTA CRUZ, An Individual

STEVEN DUNLAP, An Individual

MICHAEL MEKARA, An Individual

JIM H. HENDRICKSON, An Individual

SCOTT D. DEVANE, An Individual

JULIE IRELAND, An Individual

DAVID JOHNSON, An Individual

CALVIN BROWN, An Individual

WILLIAM D. AYNES, An Individual

Case Nos. SF-CO-09-0001

SF-CO-09-0030

AT-CO-09-0040

CH-CO-09-0076

CH-CO-09-0111

CH-CO-09-0304

CH-CO-09-0313

DA-CO-09-0014

DE-CO-09-0018

CHARGING PARTIES

AND

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

RESPONDENT

AND

CALVIN BROWN, An Individual

CHARGING PARTY

Stefanie Arthur, Esq.

For the General Counsel

William W. Osborne, Jr., Esq.

Natalie C. Moffett, Esq.

For the Respondent NATCA

Case No. DA-CA-09-0061

OALJ 11-08


2

Cabrina S. Smith, Esq.

For the Respondent FAA

Before:

CHARLES R. CENTER

Chief Administrative Law Judge

DECISION ON MOTIONS FOR SUMMARY JUDGMENT

STATEMENT OF THE CASES

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. DACA-09-0061. The charge was filed with the Dallas Regional Director and transferred to the San


3

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-090001 et al., and on January 19, 2010, respondent FAA filed an answer to Case No. DA-CA-090061. 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-CO09-0001 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-090001 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

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.


4

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.

MOTIONS FOR SUMMARY JUDGMENT

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.

FINDINGS OF FACT

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).

In March 1996, section 437 of the Department of Transportation and Related

Appropriations Act (Transportation Act) exempted the FAA from portions of Title 5 and

provided that it should develop and implement a personnel management system. Pub. L. No.

104-50, Title iii, § 347(b), 109 Stat. 460 (1995), as amended by Pub. L. No. 104-122, 110 Stat.

876 (1996) (codified at 49 U.S.C. § 106). Immediately thereafter, the Federal Aviation

Reauthorization Act of 1996 (FAA Act) was passed, providing that "[i]n developing and making

changes to the personnel management system . . . the Administrator shall negotiate with the

exclusive bargaining representatives of employees of the [FAA] under section 7111 of title 5[.]"

The Agency's collective bargaining obligations in the context of this new personnel

system are codified at 49 U.S.C. § 40122 et. seq. and the Congressional authorization to

negotiate wages is a significant departure from the typical federal pay scheme set forth in the

Civil Service Reform Act, 5 U.S.C. § 7101 et. seq.


5

49 U.S.C. § 40122 provides:

(a) In general -

(1) Consultation and Negotiation. In developing and making changes to the personnel

and management system initially implemented by the Administrator of the Federal

Aviation Administration on April 1, 1996, the Administrator shall negotiate with the

exclusive bargaining representatives of employees of the Administration certified under

section 7111 of title 5 and consult with other employees of the Administration.

(2) Mediation - If the Administrator does not reach an agreement under paragraph (1)

with the exclusive bargaining representatives, the services of the Federal Mediation and

Conciliation Service shall be used to attempt to reach such agreement. If the services of

the Federal Mediation and Conciliation Service do not lead to an agreement, the

Administrator's proposed change to the personnel management system shall not take

effect until 60 days have elapsed after the Administrator has transmitted the proposed

change, along with the objections of the exclusive bargaining representatives to the

change, and the reasons for such objections, to Congress. The 60-day period shall not

include any period during which Congress has adjourned sine die.

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;


6

d)

e)

Third Tie Breaker: SCD;

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 A0819, 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).


7

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).


8

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).

DISCUSSION AND ANALYSIS

The Unfair Labor Practice Complaints Against NATCA

Position of the Parties

A.

General Counsel

The GC contends that Respondent NATCA failed to comply with its duty to fairly

represent employees in the bargaining unit as required by 5 U.S.C. §7114(a)(1). The GC argues

that NATCA committed an unfair labor practice when it altered its seniority policy to cause

bargaining unit employees who served in a supervisory or management position to lose their

accumulated bargaining unit seniority and then applied the change retroactively to a date which

preceded adoption of the change in seniority policy. The GC asserts that it does not challenge or

question the Respondent's ability to adopt a seniority policy that reset bargaining unit employees'

seniority to the date they return to the unit from a supervisory or management position so long as

the change in policy is applied prospectively. (GC Brief at 1, 14).


9

B.

Respondent NATCA

Respondent NATCA asserts that it did not breach its duty of fair representation because

it's action in punishing bargaining unit members who escaped the unconscionable terms and

conditions unilaterally imposed by the FAA White Book by going to work for FAA management

after the imposition of those work rules falls within the bounds of deference afforded unions in

exercising their duty of representation. NATCA argues that the pay freezes, drastic cuts to

benefits and altered working conditions suffered by their fellow bargaining unit members gave

those who remained in the unit reason to authorize delegates to the convention to change the

seniority policy "to encourage and reward Union solidarity among employees who remained in

the adversely affected NATCA bargaining unit and to discourage the actions of bargaining unit

members who sided with, and joined the ranks of FAA management." (NATCA Brief at 11).

Respondent NATCA also contends that Charging Party Steven Dunlop was not in the bargaining

unit as of September 12, 2008, and that Charging Party Jim Hendrickson ceased to be a

bargaining unit member in October 2009. (Id. at 4).

Discussion and Analysis

A.

The Complaint as it Relates to the Charges Against NATCA Filed by Charging

Parties Mark Santa Cruz, Michael Mekara, Jim H. Hendrickson, Scott D. DeVane,

Julie Ireland, David Johnson, Calvin Brown and William D. Aynes

I.

NATCA Constitutional Amendment as Interpreted by NATCA

In addition to demonstrating the complexity that arises when cases with different, albeit

similar facts are consolidated into a jumbled mishmash of legal theories involving different

charging parties, respondents and differing outcomes, the charges that make up this complicated

bundle of litigation exemplifies labor relations run amok within the federal sector. When an

agency unilaterally implements conditions of employment that give a union unrestrained power

to determine seniority and the union then uses that power to negate management's right to assign

employees and work, a perfect storm of abdication and abuse of power has formed. That it

occurred within one of the few labor relationships in the federal sector where wages are

negotiable should frighten anyone who pays federal taxes. Furthermore, the facts and

circumstances of these complaints present a sterling example of how labor law in the federal and

private sectors differs and why legal authority from the private sector which does not

contemplate the management rights granted under the Statute provide little that can be used to

resolve federal sector disputes.

To understand the multitude of issues arising from these eight varied charges, it is

important to understand the context in which they arose. In 1996, Congress authorized the FAA

to develop its own personnel system. Flowing from this authorization was a requirement to

bargain collectively with exclusive representatives and the ability to negotiate wages for the

represented employees was one of the rights provided in the legislation. While not exclusive to


10

this agency, the ability to negotiate wages is a significant departure from the wage determination

process used for the great majority of federal employees whose wages are determined each year

by Congress and implemented by the Executive. That this unusual system of wage determination

was given to air traffic controllers, a group of federal employees whose vocation is virtually

limited to the federal sector speaks more to the political might of their exclusive representative

than it does competition the FAA faces from the private sector for such services. Nonetheless,

Congress authorized collective bargaining over the wages of a workforce whose primary

employer is the federal government and in doing so, the tracks for this train wreck were in place.

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

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).


11

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


12

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


13

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.


14

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.

With respect to the first requirement that the union act with deliberation, there is no doubt

under the facts that NATCA deliberately changed its seniority policy and did so to punish

bargaining unit employees who crossed the bargaining unit line and "sided with, and joined the

ranks of management" after the work rules set forth in the White Book were unilaterally

implemented by the FAA. In fact, the change was undertaken with premeditation and malice

aforethought specifically aimed at punishing those who "exempted themselves from the

unconscionable terms and conditions of employment imposed by the FAA's White Book." As

was made clear in NATCA's brief, the union's action was deliberate, thus, the question turns to

whether the action was unjustifiable.

In assessing NATCA's justification for changing its seniority policy in the manner in

which it did, it is important to understand what the change did not do. Although NATCA argues

that it made the seniority change "to encourage and reward Union solidarity among employees

who remained in the adversely affected NATCA bargaining unit …", the change it made did not

apply to all employees who left the bargaining unit after the White Book was implemented.

Instead, the change applied only to those employees who left the unit by going to a supervisory or

management position within the FAA. Any bargaining unit employee who left for a permanent

position at another federal agency or who exempted himself from the "unconscionable" White

Book by taking up a new career as a hot dog vendor would have his cumulative NATCA

bargaining unit time awaiting him if he returned to the unit. Thus, the new policy was

discriminatory because not all who left when the times supposedly got tough were punished for

cutting and running. Rather, only those who assisted the FAA in achieving its mission by serving

in a supervisory or management position were singled out and discriminated against for gaining

an exemption from the plight of their peers. Even when they left the unit for a temporarily

promotion of limited duration on a detail to a supervisory or management position made pursuant

to management's assignment of employee and work, under the seniority change as enacted and

interpreted by NATCA, they lost their accumulated seniority time when they returned to the unit.

While justification of a prospective application of a seniority policy that punishes bargaining unit

employees who are detailed to management positions by the exercise of a management right is

dubious, the unjustifiable element of the Authority's test for breach of the duty of fair

representation is clearly met when NATCA applied such a policy retroactively to bargaining unit

employees who volunteered for such positions without knowing the action would result in their

loss of accumulated seniority and volunteered pursuant to a process NATCA had established

through prior negotiations.

Declaring an act improper and imposing punishment only after the fact is typically an

abuse of power exercised in the realm of dictators and kings rather than democratic

organizations. Our forefathers found the exercise of ex post facto laws so antithetical to the rule


15

of law, our social compact and democratic principles that they included a ban upon the ability of

Congress and the states to pass such laws in Sections 9 and 10 of Article I of the Constitution.

Ironically, a discussion of the forefather's disregard for bills of attainder and ex post facto laws is

part of the decision in U.S. v. Brown, 381 U.S. 437 (1965), a case in which the Supreme Court

struck down as unconstitutional a statute that made it a crime for a member of the Communist

party to serve as an officer or employee of a labor union. In the case of these eight charging

parties, they had their accumulated seniority wiped out by a change in seniority policy that was

enacted and applied to them only after they:

1)

2)

3)

4)

were solicited by a process originally negotiated by NATCA;

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

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

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

In this case, the FAA solicited volunteers from the bargaining unit for temporary

promotions to management positions in accordance with Article 43 of the White Book. While

NATCA contends that the FAA unilaterally imposed terms and conditions of employment that

were unconscionable, in reality, other than altering those portions of the prior Green Book related

to pay and compensation, the agency left in place most of the rights and benefits previously

negotiated by NATCA in earlier agreements. Thus, Article 43 and its requirement to solicit

qualified volunteers from the bargaining unit for temporary promotions remained in place and

was the process the FAA used when it needed to temporarily fill higher-level supervisory

positions. Having created the bargaining unit employee's right to volunteer for a temporary

promotion into a supervisory position, NATCA's treating those who volunteered for a temporary

promotion as if they had accepted an offer of permanent employment as a manager or supervisor

is unjustifiable. Volunteering for a temporary promotion given as an assignment of work by

management is not the same as accepting a permanent position and NATCA's treating them as

one and the same, cannot be justified.

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

3

That an employee who is assigned to perform work in a temporary detail or promotion pursuant to the

exercise of management rights is not entitled to accept or decline said assignment is a fact that seems to

have escaped NATCA, the FAA and the General Counsel, and is but one of the problems with the

language of the constitutional amendment as further discussed below.


16

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


17

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.

II.

The Language of the NATCA Constitutional Amendment

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.

While NATCA's interpretation of this language was not challenged by the FAA when it

was notified of the change on September 19, 2008, the General Counsel asserts that NATCA's

retroactive application of the provision violates the union's duty of fair representation. For the

reasons outlined below, I find that NATCA's interpretation of the provision is inconsistent with

the language as drafted and approved at the constitutional convention and that its application to

bargaining unit employees who returned to the bargaining unit prior to its enactment is a

deliberate and unjustifiable act that violates the union's duty of fair representation under Local

4153 and Loring.


18

To call the language that was added to Article XV of the NATCA Constitution by vote of

the delegates on September 12, 2008, imprecise and poorly chosen would be an understatement if

the provision was intended to authorize what NATCA has interpreted as its meaning since its

passage. The fact that the General Counsel deems its clear and unambiguous is difficult to

comprehend. (GC Brief at 20). First, within the federal sector, an employee who is detailed to a

temporary promotion does not accept such a position. It is an assignment of work made pursuant

to the rights given to management by the Statute. Refusal to perform that assignment is not an

option lest the employee face discipline or tender a resignation. Thus, there is legitimate reason

to question whether this provision should even apply to a situation where an employee was

detailed to a supervisory or management position, rather than one where the employee accepted

an offer of permanent employment as a supervisor or manager. Because neither the FAA nor

General Counsel raised this as an issue, further discussion is not appropriate, however, it does

provide additional reason to conclude that the action undertaken by NATCA against these

charging parties was unjustifiable.

Second, job is vernacular expression whose initial entry in Webster's reads as follows:

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.

Third, there is legitimate reason to question whether the delegates approved a retroactive

provision even if that was the intent as contended by NATCA. In this regard it is clear from the

past tense used for the word accepted that the intent was to make the provision applicable to

management positions accepted after June 6, 2006, rather than just those accepted after passage

of the change. However, the second clause of the provision related to the resetting of seniority

dates was drafted only in the present tense. Unlike the first clause, the second clause resets the

seniority date only for an employee who subsequently returns to the bargaining unit. Thus, it is

not evident that the delegates who approved the proposal intended for it to apply to those who

had already returned to the bargaining unit prior to the vote on September 12, 2008.


19

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.

B.

Complaint of Charging Party Steven Dunlap

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 (6th Cir. 1985); Cooper v. General

Motors Corp., 651 F.2d 249, 250 (5th 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


20

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.

C.

Complaint of Charging Party Jim H. Hendrickson

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.

However, in October 2009, Hendrickson accepted a permanent position as a Front Line

Manager in Area 7 at the Indianapolis Air Route Traffic Control Center. When Hendrickson

accepted this permanent management position, not only did NATCA no longer owe him a duty of

fair representation, he placed himself within a prospective application of the change in seniority

policy passed by the NATCA delegates on September 12, 2008, because he accepted an offer of

permanent employment in a supervisory or management position with the FAA after June 6,

2006.

While the enactment of a seniority provision that forces a bargaining unit employee to

refuse an assignment of work or face the loss of his cumulative seniority when management

exercises the right to assign work is an unjustifiable violation of a union's duty of fair

representation when it is retroactively applied; a seniority provision that makes it clear to unit

employees that a personal choice to leave the unit for a permanent position with management

will result in a loss of all prior cumulative seniority earned should they return to the unit at a later

date would be a much closer question. Whether punishing only those bargaining unit employees

who leave the unit to take a permanent position with management while allowing others who

leave the unit to re-establish their seniority upon a return is an acceptable exercise of a union's

right to determine seniority that does not unjustifiably limit a bargaining unit employee's career

options would be a legitimate question for the Authority to answer were it properly presented.

However, that is not a question presented by the General Counsel in this case. Because the

provision passed by NATCA on September 12, 2008, can be interpreted as being limited to those

situations wherein a bargaining unit employee accepts a management position on a permanent

basis, charging party Hendrickson lost all cumulative seniority he had accumulated within the

unit when he accepted the management position with the FAA in October 2009, and under the

terms of the modified seniority policy his seniority would not be restored should he return to the

unit.


21

Although a total loss of seniority might discourage some unit employees from seeking or

accepting the offer of a permanent position within management, the adverse impact it might have

upon filling management positions does not interfere with a management right nor does it foist

the employee into a situation where she has to make choices under circumstances beyond his or

her control. Rather, the adverse impact such a seniority policy would have upon getting the best

candidates to apply for management positions would be more appropriately addressed in the give

and take of negotiation over a seniority article in a collective bargaining agreement.

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.

III.

Remedy for Violating the Duty of Fair Representation

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.


22

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


23

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 Unfair Labor Practice Complaint Against the FAA

Position of the Parties

A.

General Counsel

The GC contends that Respondent FAA should have known that the change in seniority

policy made by NATCA on September 12, 2008, was discriminatory and in bad faith, and based

upon established case law, would know that applying the policy retroactively was inconsistent

with the duty of fair representation. The GC argues that a reasonable employer would not have

permitted the NATCA to implement its discriminatory seniority policy or used it to determine

leave, work schedules or overtime. The GC asserts that by retroactively implementing the

seniority policy, the FAA interfered with employees who had exercised their right under § 7102

of the Statute to refrain from assisting the union, and thereby committed an unfair labor practice

in violation of § 7116(a)(1) of the Statute.


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B.

Respondent FAA

Respondent FAA asserts that it did not breach its duty of fair representation because it

had no authority to determine seniority nor the right to refuse implementation of a change in

seniority policy lawfully made by NATCA pursuant to rights granted it by the White Book. The

FAA argues that a failure to apply the seniority policy change implemented by NATCA after

receiving notice of it on September 19, 2008, would have violated its obligations under Article

83 of the White Book. Respondent FAA contends that while there was no clear declaration of

law, rule or regulation which precluded NATCA from implementing a retroactive change in

seniority policy, while the failure to comply with the change in seniority policy enacted by

NATCA would have been a clear breach of Article 83 when there were "no legal grounds upon

which the Agency could have justified not implementing NATCA's seniority policy…"

Discussion and Analysis

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.

The GC cites the case of Loring in support of its argument for finding the FAA in

violation of the Statute. Like this case, Loring involved a consolidated complaint wherein a

union was accused of violating its duty of fair representation while the activity was accused of

violating the Statute for its role in the distribution of a settlement related to the payment of

environmental differential pay (EDP) for asbestos exposure. In short, union officers rewarded

themselves and other union members with larger shares of a settlement than those paid to

bargaining unit employees who were not members of the union, and the amounts paid to

bargaining unit employees who were not members varied substantially from the actual exposure

the employees experienced with no clear reason for the variation other than union affiliation.

The Authority found the union violated both prongs of the duty of fair representation test because

it improperly based payments upon union membership and arbitrarily and in bad faith

discriminated between the bargaining unit employees who were not members.


25

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


26

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


27

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:

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.


28

(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


NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

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 HEREBY NOTIFY BARGAINING UNIT EMPLOYEES THAT:

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.


2

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.


CERTIFICATE OF SERVICE

I hereby certify that copies of this DECISION, issued by CHARLES R. CENTER,

Chief Administrative Law Judge, in Case Nos. SF-CO-09-0001, SF-CO-09-0030,

AT-CO-09-0040, CH-CO-09-0076, CH-CO-09-0111, CH-CO-09-0304, CH-CO-09-0313,

DA-CO-09-0014, DE-CO-09-0018 & DA-CA-09-0061, were sent to the following parties:

CERTIFIED MAIL & RETURN RECEIPT

CERTIFIED NOS:

Stefanie Arthur

Counsel for the General Counsel

Federal Labor Relations Authority

901 Market Street, Suite 220

San Francisco, CA 94103

7004-1350-0003-5175-4113

William W. Osborne, Jr.

Natalie C. Moffett

Counsel for the Respondent

NATCA, AFL-CIO

1325 Massachusetts Avenue, NW.

Washington, DC 20005

7004-1350-0003-5175-4229

Cabrina S. Smith

Agency Representative

FAA, Labor Relations Office

800 Independence Avenue, SW., Rm. 519

Washington, DC 20591

Regular Mail:

Mark D. Santa Cruz

4016 Cumming Fellow Ct.

Las Vegas, NV 89129

Steven Dunlap

3817 Vista Point Way

Palmdale, CA 93551

Michael T. Mekara

371086 Kings Ferry Road

Hilliard, FL 32046

7004-1350-0003-5175-4366


2

Jim Hendrickson

9 Presidential Way

Brownburg, IN 46112

Scott DeVane

10336 Hillsborough Drive

Fishers, IN 46037

Julie Ireland

14400 Meadow Creek Lane

LaGrange, OH 44050

David Johnson, Jr.

489 Hunters Mill Cove

Collierville, TN 38017

William D. Aynes III

2211 17th Avenue

Longmont, CO 80501

Calvin Brown

19122 Milloak Drive

Humble, TX 77346

__________________________________

Catherine Turner

Office of Administrative Law Judges

Federal Labor Relations Authority

Dated: May 5, 2011

Washington, DC