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.
24
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.
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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