Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:07-cv-00272-ECH

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IN THE UNITED STATES OF FEDERAL CLAIMS MARK G. ABBY, et al., Plaintiff,
V.

THE UNITED STATES, Defendant,

) ) ) ) ) ) ) ) )

No. 07-272C Judge Emily C. Hewitt

APPENDIX TO DEFENDANT'S REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANT'S PARTIAL MOTION TO DISMISS AND PARTIAL MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

JEFFREY S. BUCHOLTZ Assistant Attorney General
JEANNE E. DAVIDSON Director HILLIARY A. STERN Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W, Washington, D.C. 20530 Tele: (202) 616-0177 Facsimile: (202) 305-7643 Attorneys for Defendant March 12, 2008

OF COUNSEL: EDEN BROWN GAINES ELIZABETH HEAD MICHAEL DOHERTY Federal Aviation Administration 600 Independence Ave., S.W, Suite 1 E- 100 Washington. D.C. 20591 Tele: (292 385-8254 Facsimile: (202) 493-5085

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INDEX TO SUPPLEMENTAL APPENDIX ITEM PAGE

Supplemental Declaration of Ellen B. Cook Dated February 20, 2008 ..................................................................... 1 Supplemental Declaration of Michael Masson Dated March 4, 2008 .......................................................................... 3
Masson Attactunent 1: FAA Order JO 7210.3V, Facility Operation.and Administration Dated February 14, 2008 (excerpt) ......................................................... 7 Supplemental Declaration of Thomas Cassady 1 Dated March 4, 2008 ......................................................................... 0

Declaration of Rick Duchanr~e Dated February 28, 2008 ..................................................................... 12 Declaration of Cindy Rooney Dated February 29, 2008 ..................................................................... 14
Declaration of Gregory Dunne Dated February 20, 2008 ..................................................................... 7 1

Declaration of Miles R. Miller Dated February 28, 2008 ..................................................................... 21
Miller Attachment 1: Memorandtun of Understanding between NATCA and FAA Dated October 27, 2006 ...................................................... ...............25 Declaration of Fred Prosperi Dated February 28, 2008 ..................................................................... 27

Declaration of Juan Fuentes Dated March 4, 2008 ......................................................................... 30
Fuentes Attaclmaent 1: Memorandum of Understanding between NATCA and FAA Dated September 19, 2007 ................ ~ .................................................. 33

Fuentes Attachment 2:2002 Primetime Leave Bidding Notice ................................. 35
Fuentes Attachment 3:2005 Primetime Leave Bidding No/rice ................................. 36 Declaration of Joseph N. Miniace Dated March 4, 2004 ........................................................................37

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INDEX TO SUPPLEMENTAL APPENDIX ITEM PAGE

Miniace Attachment 1: ULP Case No. WA-CA-06-0366 Dated April 7, 2006 ........ " ................................................................... 41 Miniace Attachlnent 2: ULP Case No. WA-CA-06-0563 Dated July 11, 2006 .......................................................................... 3 4 Miniace Attachment 3: ULP Case No. WA-CA-06-0648 Dated September 6, 2006 .................................................................... 4 4 Miniace Attachrnent 4: Dismissal of ULP Case No. WA-CA-06-0366 Dated July 25, 2007 .......................................................................... 5 4 Miniace Attachment 5: Dismissal of ULP Case No. WA-CA-06-0563 Dated July 25, 2007 .......................................................................... 5 5 Miniace Attacl~nent 6: Dismissal of ULP Case No. WA-CA-06-0648 Dated July 25, 2007 .......................................................................... 0 6 Miniaee Attachment 7: Order Denying Appeal, Case No. WA-CA-06-0366 Dated January 29, 2008 ....................... .. .............................................. 65 Miniace Attachment 8: Order Denying Appeal, Case No. WA-CA-06-0563 Dated January 29, 2008 ..........................................................: ...........68 Miniace Attachment 9: Order Denying Appeal, Case No. WA-CA-06-0648 Dated January 29, 2008 .......................................... " ..... , ...................... 71 Miniace Attacl~nent 10: Order Denying Motion for Reconsideration, Case No. WA-CA-06-0366 Dated February 26, 2008 ..................................................................... 4 7 Miniace Attachment 11: Order Denying Motion for Reconsideration, Case No. WA-CA-06-0563 Dated February 26, 2008 ..................................................................... 7 7 Miniace Attachment 12: Order Denying Motion for Reconsideration, Case No. WA-CA-06-0648 8 Dated February 26, 2008 ..................................................................... 0 Miniace Attachment 13:2003 NATCA/FAA Contract (excerpt) 8 Dated September 2003 ....................................................................... 3 Miniace Attachment 14: Letter from Herman to McNally Dated July 8, 1998 ............. i .................. ; .......................................... 98

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1N THE UNITED STATES COURT OF FEDERAL CLAIMS

MARK G. ABBEY, et al.,. Plaintiffs,
V.

THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) ) ) )

No, 07-272C (Judge Emily C. Hewitt)

SUPPLEMENTAL DECLARATION OF ELLEN B. COOK I, Ellen B, Cook, declare and state as follows: 1. This declaration supplements the one I previously provided in this matter, dated Ock)ber 3, 2007, and the paragraphs therein are incorporated by reference. 2. Appendix 10 of FAA Order 3550.10, Pay Adminisla'ation, addresses flae implementation of the Fair Labor Standards Act (FLSA) for Federal Aviation Administration (FA.A) employees. Compensatory time policies contained in Appendix 10 are applicable to FAA employees who are not exempt from the FLSA, along with those contained in FAA Order 3550.15, I~EPCA of 1990. 3. Credit hours are earned on an hour for hour basis, i.e. for each non-overtime hour worked under a flexible work schedule (FWS) which is in excess of an employee's basic work requirement and is worked at the election of the employee, the employee receives one credit hour.

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As a general prh~ciple, all FAA employees who are not exempt from file FLSA ("nonexempt employees") are compensated for all time worked, h~eluding work performed before or after their scheduled shifts. As a general principle, all overtime for non-exempt employees must be officially ordered and approved by their supervisor in advance. If a non-exempt employee performs work before or after her scheduled shift that was not officially ordered and approved in advance, she should notify her supervisor and request compensation in the form of overtime, compensatory time, or credit hours, depending upon the employee's individual situation. In accordance with FAA ~lmaan Resom'ce Poficy Manual (HRPM) LWS 8.14, Workweeks, Tours of Duty, and Work Schedules: "Employees are required to record time and attendance information each pay period and attest to its accuracy and completeness with either a naanual or electronic signature. Employees are required to make a timely, accurate submission of time worked and leave taken. Failure to do so may lead to disciplinary action."

In accordance with 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.
Executed on this ~ day of February, 2008. '

ELLEN B. COOK

00000~

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

MARK G. ABBEY, et al., Plaintiffs,
V,

No. 0%272C (Judge Emily C. Hewitt)

THE UNITED STATES, Defendant.

SUPPLEMENTAL DECLARATION O10' MICHAEL MASSON I, Michael Masson, declare mad state as follows: 1. This declaration supplements the one I previously provided in this matter, dated Oefober 4, 2007, and the paragraphs therein are incolporated by reference. 2. The Cru-X/ART system is a managemel~t tool utilized to effectuate FAA policy. The system in and of itself does not preclude ~1 employee fi'onl perkbrming work without management approval or authorization, but if an emp!oyee is adhering to FAA policy regarding time and attendmaee arid using the Cru-X/ART system properly, he will be compensated for all work performed. 3. The Cru~X/ART system does not allow an employee to record that site performed work prior to her scheduled shift start time unless she: 1) is workilag a Flexible Work Schedule (FWS); 2) requests to change t!ae scheduled start time of her shift; or 3) requests to world time outside of shift (TOS). In accordance with FAN Order Ji3 7120.3V, Facility Operation and Administration, § 2-2-6 (Attachment 1), supervisory approval is required fdr an employee to either: i) change her sehedaled shift start time or 2) request TOS.

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An FWS allows an emp!oyee to "flex" her scheduled shift start time by stm'ting her shift within a set time (usually thirty minutes) before the scheduled start time. For example, an employee working an FWS at a facility that allows a thirty minute "flex" and whose scheduled shift stm't time is 7:00 a.m. could begin her shift anytime between 6:30 a.m. and 7:00 a.m. The Cru-X/ART system is designed to accommodate an FWS mad the employee would not need supetMsory approval to begin working fl~irty minutes before or after the scheduled start time of her shift. The system automatically adjusts the end time of the shift of an employee working m~ FWS depending upon when she °'flexed in'' at the stm~t. For exampIe, if the employee "flexes in" at 6:45 a.m. for a 7:00 a.m. shift, the Cru-X/ART system would automatically change her sh~ end time from the scheduled time of 3:00 p.m. to 2:45 p.m, to reflect that she "flexed in" fifteen minutes early. The Cru-X/ART system is not intended to be a "punCh dock," whereby an employee is expected or required to begin working immediately upon signing on to the system. In aeeordar~ce with section 2-2-6 of FAA Order JO 7120.3V, employees can sign in to the Cru-X]ART system up to fifteen minutes before the beginning of their scheduled shit~ start time and can sign out no earlier than ~it'ceen minutes prior to the end of their scheduled shift ~ime. The intent behind allowing employees to do is to prevent congestion in and around the Cru-X/ART system computers at the beginning and end of sh~s0 The Cru-X/ART system maintains a time and date record of each Cru-X!ART entry made. For example, if an employee signs on to the system at 6:50 a.m. for the 7:00 area. scheduled start of her shift, the system would record that she made fine entry at 6:50 a.m.

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even though she catered 7:00 a.m, as her shift start time and is not s%rpposed to beg~n working until that time. The system, however, does not maintain records of when an employee performs work contrary to FAA policy. In accordance with section 2-2-6 of FAA Order JO 7210.3V, the Cru-X/ART electronic logs shall be used to indicate responsibility at all operational positions, e.g. controlling air traffic at a radar scope. An employee is required to indicate in the Cru-X/ART system that she will be working a~ operational position prior to assuming the position. If the employee tries to do so prior to the scheduled stm~ time of her shift, the system will not allow that entry. Assuming the employee in the foregoing example is r~ot working a~ FWS and did not request to change her shift or TO8 (both of which require supervisory approval), she is neither expected nor required to perform any work between 6:50 a.m. and 7:00 a.m. If she attempts to indicate in fl~e C~a-X/ART system that she is working an operational position at 6:55 a.m., the system will not allow that entxy. 10. The employee could physically begin working an operational position at 6:55 a.m. without malting an entry in the Cru-X/ART system, but she would be doing so in violation oft~AA policy. The Cm-JUART system, however, would have no record of any work performed in violation of policy.

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In accordance with 28 U.S.C. § 1746, I declare reader penalty of perjury that the foregoing is true artd correct to the best of my knowledge and belief. Executed on this 4th day of March, 2008.

M]~CHAEL M~~SO~ N

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U.S. Department of Transpor.tation
Federal Aviation Administration

Order JO 721.0.3V
Facili.ty Operation and Administration
February i4, 2008

An electronic version of this publication is on the internet at http://www.faa.gov/atpubs
Distribution: ZAT-721, ZAT-464

I~fltiated By: AJR-O Vice President, System Operations Services

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2/14/08

JO 7210.3V

2-2-5. OPERATING INITIALS
a. Specialists shall be assigned two-letter operating initials tO identify the employee ,for record purposes. When all combinations of letters are depleted, du'plicate initials may be'assigned to personnel worlcing in different areas of specialization.

b. Ulfless signatures are specifically requested, use assigned operating initials for all operating forms, interphone contacts, marking of recorder tapes, and other records.
e., A current file of assigned initials shall be maintained. 2-2-6. SIGN INtOUT AND ON/OFF PROCEDURES The following'is applicable to all FA.A air traffic facilities, but does not apply to.FAA contract facilities. Cru-X/ART is the official time and attendance system for both signing in/out for a shift and on and off po~itions, not paper logs nor Commofl ARTS/HOST/NTML/M1FC or' other Agdncy or local program~. Facilities may use Common ARTS/I-IOST/NTML/M1FC to sign bn p6sitions for position preference settings; however, these systems/ programs shall not be used for official time and attendance nor position times. Duplicate paper logs for sign in/out of the shift and on and off positions shall not be utilized during normal daily operations. i. FAA sup~rvlsory traffic management coordinators (STMC)/operation~ supervisors (OS)/Nafional Traffic Management Officers (NTMO)/controllersin-charge (CIC) of the watch are responsible for ensuring the accuracy of the personnel log for time and attendance (T&A) recording. T&A information shall be entered into and maintained within the ATO Resource Tool (ART) system. 1. The facility air traffic manager shall en~ure that procedures are in place so that operatiohal schedules are entered correctly into ART. 2, Employees shall use ART to sign in and out of their shifts, (a) Sign in for a.shift shall be accomplished no later than the shift assigned time unless tile OS/STMC/NTMO/CIC and/or OM1C has approved

leave at the start of the assigned shift. Sign in, using the assigned shift start time,, may occur up to 15 minutes before an em~loyee's assigned shift. Earning of, and signing ha for; Time Outside Shift thne at the beginning of an assigned shift must receiv.e approval by the' OS/STMC/NTMO/CIC or OMIC prior to earning or recording it into Cru-X/ART. NOTEShift/Core hour changes must be in accordance with local and national policy. Earning Time Outside Shift (overtime, credit hours, etc.) murt be approved by the OS/STM/NTMO/CIC or OMIC l~'lor to entering it into Cru-X/ART or working it. ' (b) In situatiou~ where it is ~own ~n adx;ance that employees will not report to the facility, such as when attending an all day meeting outside the facility, facilities should enter the employee's shift in the schedule as an Other Duty Code. (c) Sign out shall be accomplished at the end of an employee's assigned shift. Sign out using the as.signed shift end time may be accomplished no earlier than 15 minutes prior to the end of the shift, or no later than 15 minutes after lhe end of the. assigned shift. Any Time Outside Shift at the end of an assigned shift, or leave, must first receive OS/STMC!NTMO/CIC or OMIC approval prior to earning/using and recording such time in Cru X/ART. 3. The supervJsor/Cl~ position relief briefing cheek list shall h~elude:

(a) T&A status,"
(b) Other Duties, (c) Time Outside Shift (TOS) requests/app'rovals, and "(d) Leave requests/approvals. NOTEUpon signing on position the OSISTMC/NTMO/CIC assumes full responsibility of nil check l~,t items b~ch~dgng those identified above, 4. It is the employee's responsibility to notify the operations manager or OS/STMC/NTMO/CIC in charge of the watch of any changes to "Other Duty" shifts. For example, an employee is outside of the facility on another duty and requests a day of sick leave. 5, In the event of electronic system failure, scheduled system outage, or facility evacuation, the paper FAA Form 7230-10, "Position Lo~," shall be used to indicate position responsibility. When the

Responsibilities

2-2-3

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JO 7210.3V

2/14~08

ART system has been restored or the facility reoce~, pied, the facility shall ensure that all data collected with the paper FAA Form 7230-10's is entered into ART. In instances where the data eanfiot be entered into ART, the paper F_AA Form 7230-10's shall be retained in accordance with document retention guidance, b, The Cru-X/ART electronic logs shall.be used to indicate responsibility at all operational positions and for supervisory traffic management'coordinatorin-charge (STMCIC), opera,ions supervisor-in-' charge (OSIC), traffic management coordinator-in-charge (TMCIC), and CIC functions. It is the responsibility of the relieved controller to enter the correct change of position responsibility time in Cru-X/ART. In situations where there is no relieved contmlli~r, such as when opening a positinn~ the person opening the position is responsible for entering the correct position time or notifying the supervisor/STMC/CIC of the position opening time. The supervisoriSTMC/NTMO/CIC shall tfien enter that time into Cru-X/ART. 2-2-7. CIRNOT HANDLING, A CIRNOT initiated by WMSCR/NNCC shall be transmitted to all circuit users.

a. Terminal Operations Service Area office shall distribute GENOTs to the following using the most expeditious means available: 1.. FAA contract and non-Federal towers. 2. FAA military ATREPS assigned to the service area. NOTBThe most expeditious means is transtnitting the GENOT via facsimile, telephone, mail, electronic mail, etc. b. The AFSS/FSS shall distribute the GENOT to all FAA field ~aciliti~ addressed~ except ARTCCs, wilhin their designated areas as determined by the respective Service Area office using the most expeditious means available.
RRFgR~NC~R4AO JO 72~0,3, Part 2-2-Sg2 Not¢,

c. Terminal Hub facilities distribute all GENOTs in plain language format to all non-Federal and contract ATCTs which are lochted within their Hub Area. The GENOT shall be distributed in the most expeditious means, available.
'REFERENCEFAA'O JO 7210.3, Papa 2-2-~a2 ]Vote, "

d. Air traffic managers at all facilities shaH: ¯ 1. Disseminate GENOT information to concerned facility personae1. The content of the message will dictate the priority of the distribution. 2. ~nsure that all employees with a need to know are thoroughly briefed on the change prior to performhag their duties. 3. ~u~nrc that the appropriate entry is made in the employee's Trah~ing and Frofioienoy Record, Form 3120-L

a. WMSCR/NNCC shall maintain a record of all CIRNOTs and forward a hard copy to TAA Headquarters, Terminal Safety and Operations Support by the most expeditious means available.
b. AFSS/FSS air traffic managers shall provide CIRNOTs to the T~rmJnal Operations Service Area office and/or other field facilities upon request. c. CIRNOTs should be retained at the receiving facility for 120 days.
NOTEThe most expeditious means is transmitting the CIRNOT via [acsimile, telephone, mai~ electronic mai!~ etc.

2-2-9. PERSONNEL BRIEFINGS REGARDING AIR TRAFFIC BULLETIN ITEMS
The Air Traffic Bulletin is a means of communication between headqu.arters and field facilities." It is routinely published and distributed quarterly. In addition, special issues are published and distributed as necessary. It is not a directive, nor is it to im1~lement new.procedures. Its intent is to transmit "reminders" concerning proper application of procedures and other instructions. To provide continuity of communication, facility air traffic managers shall: Responsibilities

2-2-8. GENOT HANDLING A GENOT initiated by headquarters ATO organizations, requiring distribution to air traffic facilities, shall be transmitted to all Service Area offices, Flight Service Stations (FSS), Automated Flight Service Stations (AFSS), and ARTCC.

2-2-4

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

MARK (3. ABDBY, et al., PlaLufiffs,

)

)

THE UNITED STATES, Defendant.

) ) ) ) ) ) ) )

No, 07-272C (Judge Errtily C. Hewitt)

SUP,PL~BgI'_AI~,,DECLARA~TIOI~ OF THO,M, AS CASSADY ~, ~omas Ca~y, d~l~ ~d ~tato as follows: 1. ~ d~l~atio~ ~ppl~ents the one I pre~o~ly pro~d~ in ~s matter, d~ Octob~ 3, 2007, ~d ~e p~a~aphs thereia ~v inco~0rated by ref~ee. 2, ~ide 32, Section 3 of~o 2006 contact ztat~; "~e pozt~ wat~ sehed~e is de~ed ~ the assi~nt of ~ployees ~o ~pecific s~. ~e posted watch schedule sh~l be

pub~h~ at le~ twaaty-~t (28) da~ ~ advice." ~s me~s fl~at Air Tra~c ConkoI
Specialists (ATCSs) ~d Tr~c M~agem~t Coord~ators ~MCs) ~v~d by ~ 2Q06 ~on~act ~e aw~ of ~e sehefluled sh~ st~ ~d end times of a p~ tw~-ei~t days before ~t s~. ~ele 32 of the 2003 ~n~act conta~ed p~o~sion. 3. ~e FAA expeas ~at ~ploy~s, ~clud~ng ATCSs ~d ~Cs, ~!1 work ~ek schedul~ shifts. ~o on~ ex~on is for ~ploy~s who havo.dected to work a flex~io work schedule (~S) as p~ of ~r watch schedule. In ~cord~ee ~ ~e~l~ policy, ~ployees wor~g ~ ~WS m~y "flex ~" up to ~ preset ~o~t of time (~y t~

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Fax 81B3292659

~r 5 2008

~oJ~utes) before the scheduled start time of~e~ shift, For example, an employee working axa FWS w~th a thirty minute "flex" who is scheduled to beg~r~ h~s shift at 7:00 a.m. may begkt his shift anytime betweer~ 6:30 ~t.m. and 7:30 a.m,

In accordance w~.th 28 U.S.C. §1746, I declare under penalty of perjury ~at th~ forego~g is ~d eo~~ct to the best of my l~owledge and belief. Exeouted on this ~ day of Febmm'y, 2008.

~'~I2IOMAS eASSADY (. ¯

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

MARK G. ABBEY, et ~1.,
Plaintiffs,
Vo

THE UNITED STATES,

Defendant.

) ) ) ) ) ) ) ) ) ) ).

No. 07-272C JudgeEmily C. Hewitt

DECLARATION OF RICttA_RD DuctiARME I, Richard Duchm-me, declare and state as follows: 1. My emTent position is Director, Terminal Mission Support, Air Traffic Organization (ATO), Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT). In my tenure at the Federal Aviation Administration, I have served as an Air Traffic Control Specialist (1982-1988); Supervisor at Boston Logan Air Traffic Control Tower (ATCT) (1988-1991); Supervisor of the Air Traffic Labor and Admhaistrative Branch in the FAA Eastern Region (1991 -1993); Deputy Air Traffic Manager at Dulles ATCT (1993-1994); Air Traffic Manager at Philadelphia ATCT (1994-1999); Special Assistant to the Air Traffic Division Manager in the FAA Eastern Region (1999 - 2000); Deputy Air Traffic Division Manager in the FAA Eastern Region (2000 - 2002); Air Traffic Division Manager in the FAA Eastern Region (2002 - 2004); and Eastern Terminal Se~wice Center Manager (2004 2007).

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2. I was a member of the FAA's negotiating team during the 1998 contract negotiations with NATCA and served as the Lead Negotiator for the Air Traffic Organization during the negotiations that resulted in the 2006 contract. 3. During the 2006 contract negotiations, I had discussions with Barry Krasner, Chief Negotiator for NATCA, about employees who carried large credit hour balances (some over 1,000 hours). Since I am not an attorney, I cannot comment on the possible legal liability that either the FAA or NATCA may have based on the Parties' 1998 agreement that credit hours have no "cash" value. 4. I stated in my discus~i0ns with Mr. I~asner that there c0-uld be a.significant cost to the Agency in the ultimate pay out of credit hours should controllers with large leave balances attempt to cash Out prior to retirement. Also, the use of credit hours also could adversely hnpact the Agency shace bacldill overtime would likely be required if and when employees used a large number of credit hours to take time off.

In accordance with 28 U.S.C. §1746, I declare trader penalty of perjury that the foregoing is true and collect to the best of my knowledge and belief. Executed on this 5th day of March, 2008.

DUCH

000013
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

MARl( G. ABBEY, et al., Plaintiffs, v. THE UNITED STATES, Defendant,

) ) )

) ) ) No. 07-272C (Judge Emily C. Hewitt)

)

)

)

)

)
DECLARATION OF CINDY ROONEY I, Cynthia M. Kooney, declare and state as follows: 1. I am currently the Director, Leadership and Professional Development and the Acting Director, Workforce Services, Acquisition and Business Services, Air Traffic Organization (ATe), Federal Aviation Administration (FAA), U,S. Department of Transportation (DOT) in Washington, DC. I have been the Director, Leadership and Professional Development since July, 2006 and Acting Director, Workforce Services, since February, 2007. I have been an FAA employee since September, 1999. 2. Among my duties as Acting Director, Workforce Services, is to develop and apply FAA and ATe policies. The policy applicable to the operation of air traffic facilities is FAA Order JO 7210.3V, Facility Operation and Administration. Section 2-2-6 of that Order addresses time and attendance and the use of the Cru-X/ART system. 3. Employees who utilize the Cm-X/ART system for time and attendance purposes, such as/kitTraffic Conta'ol Specialists (ATCSs) and Traffic Management Coordinators (TMCs), are required to sign on to the Cru-X/ART system prior to performing any work. If Plaintiffs are

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pm~'orming job duties prior to signh~g on to the Cru-X/ART system, they are doing so in violation of FAA policy, 4. Employees are required to sign on to the Cru-X/ART system at the beginning of their scheduled shift and are not supposed to perform any work prior to the begim~ing of their scheduled shift. An employee may sign on to her shift in the Cm-X/ART system prior to the scheduled start of her shift, but she is neither expected or required to perform any work until the scheduled start of her shift, unless authorized to do so by a manager or supervisor. 5. If an employee is authorized and directed to perform workprior tothe scheduled stm~ time of her shift by her supervisor, the supervisor can either change the start thne of her shift or authorize time outside of shift (TOS), i.e. overtime or credit hours, depending upon the particular situation. Entries are made in the Cru-X/ART system to reflect that the employee performed work prior to the scheduled start time of her shift in order for her to be compensated for the work. If an employee performs work prior to the scheduled start time of her shift without requesting to change her shift or to work TOS, slie is doing so in violation of FAA policy. 6. Employees are required to sign offthe Cru-XJART system at the end of their scheduled shift and are not supposed to perform any work after the-end of their scheduled shift. An employee may sign out of her shift in the C~a-X/ART system prior to the scheduled end of her shift, but she is requir£d to stay tmtil the scheduled end of her shift because she is being compensated for that time. If an employee wants to leave prior to the scheduled end of her shift, she can request leave fi:om her manager or supervisor.

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Employees should only perform work before or after their shift with the express authorization from their manager or supervisor mad should make the appropriate entries in the Cru-X/ART system to reflect the work performed.

In accordance with 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is trae and correct to the best of ray knowledge and belief. Executed on this 29 day of February, 2008,

CYNTHIA M. ROONEY

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IN TH-E UNITED STATES COURTOF FEDERAL CLAIMS

MARK G. ABBEY, et .Plaintiffs,

) ) ) ) ) ) ) )
) )
No. 07-272C (Judge Emily C. Hewitt)

T~ UN-ITED STATES, Defendant.

DECLARATION OF G~GO~Y DUNNE

I, Gregory Dunne, declare and state as follows: 1. I am currently the. Traffic Management Of~cer asstgn.ed to the George Bush Intercontttlental Air Traffic Control Tower (ATCT) (also know~ by its FAA three-Ietter identifier "IAH") and Houston Terminal Radar Approach Control (.TRACON) (also known as '290"), System1 Operations Services Unit, Air Traffic Organization (ATO), Fed0ral Aviation Administration
(FAA), U.$. Department of Transportation. (DOT). I have b~en in this position since

March 2003, I haw been an employee of tI~¢ FAA since June 1976 in the fol.lowiug
positions: Air Traffic Comrol Specialist, New York Air Route Traffic Control Center, June 1976 Airspace and Procedures Specialist, New York Air Route Traffic Control Center, May I985 ¯ Supervisory Air Traffic Control SpeeMist, Washingto~ Air Rome TraNc Control Center, June 1.987 E~,aNation Special.ist, Oi'fice of System Effectiveness, ATH- 150, November 1989 Assistant Branch Manager, Office of System Effectiveness, ATH- 150, Ap~:il, 1992 Assis,ant Air Traffic Manag,r, I~ittsburgh Air Traff'~e Control Tower, August 2001 .Traffic Management Oft'~eer, Houston TRACON, March 2003

b.
¢,

d. f.

0000~7
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83/11/2888 $3;57 28&2388484

Document 29-2

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Page 21 of 48
PAGE 93

I90 TRACON

2. As a Traffic Management Officer at IAH/Ig0, among my duties i,s to manage the Traffic Management Coordinators (TMCs) assigned there, includingDonald Petersol.x Mr. Peterson has been a~sl.gned to I90 since November 2004, Tra. ffic Management Coordinators ass]g-ned to I90 are represented by tale National Air Traffic Controllers Association (NATCA). The labor agreement between, the FAA and. NATCA comains a.negotiated grieva~ace procedure that a.llbws employees to gri.eve issues surrounding t}.~.e~r working conditions, including issues regazdi.ng pay. 3, AS a general principle, all I90 emp].oyees, including Mr. Peterson, are comper.xsaied for all worked performed, including work performed before or after their schedule shifts. I am. not aware of and have act observed Mr. Peterson performing work before or after hi.s norton}. duty hours without compensation,! have not required t6 Mr. Peterson to perform work before or after his n.orma] duty hours without compensation, Prior to this lawsuit, I do not' recall nor does the f~cility have any record of Mr. Peterson ever claiming that he was not compensated for work performed either before or after one 0fhis scheduled shifts. I do n.ot recall, nor does the fact]lily have n. record of, any grievances filed by Mr, Peterson claiming that he was not compensatedfor work performed either before or after one o~hJs scheduled st~j.fts. I do not recall nor does the facility have a record of any grievances filed by NATCA clainfing that Mr: Peterson was not compensated for work performed either before or after one 0fhis scheduled shi~s, 4. When Mr, Peterson works itx excess of forty (40) hours i.n a week, he has beert compen.sated in the form of overtime pay or credit hours earned. He has received overtime pay. for those hours that he has been required to work itt excess of eight (8) hours i.u a d~.y .atad eredi~ ho~s wlaen he voltmteered to earn. them arad there was t~eanin .gful work for him to perform, Mr. Peterson could also have requested to earn compensatory time in lieu of ow~.-tim¢ pay. Credit Page 2 of 4

0000~.8

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I~O TRACON

Filed 04/07/2008

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PAGE B4

hours were requested, by Mr, Peterson and earned in accordance with .the pro,visions of applicabie FAA directives, Since May 2005° Mr. Peterson has requited ~d eamsd either ¯ ov~ime or credit hours on over 250 sep~ate workdays for work performed, outside of his nomml du~ hours for time parbds rau~ug Born fi~se~ 05) minutes to over ~r¢¢ (3) hours. 5. Bidding for work schedules and vacation, lea,us at I~ and 1.90 is conducted in accordance with th~ NATCA-~stablfshed s~nbfiT policy and tim labor contract b~tw~en $,~ F~ and NATCA. TI~ bidding schedul~ provides amp],e duty time for Mr. Peterson and ofl~r empIoy~¢s to select ~eir work schedules and vacadon Ivave.dudng ~ bidding process, 6. FAA management ~t IAH~90 did not autho~izeor approve Mr. Ptterson spending fim~ outside of his regul~ du~ hou~ bidding his o~ work schedules m~d vacation Wa~e or ~ss~fi.ng other employe~s with b~dd~g. Prior to ~.b l~.wsuR, ~AA mauagement at IAHHg0 was never aware of Mr. Pet~rsou's cI~m fl~a~ he spent ~e outside ofhb re~l~ duW hours bidding or asslsfi~g other sm.ploye~s with b~dd~mg. 7. In accord~ce with F~ policies, all TMCs, ~cluding Mr. Pet~rsou, are required to si~-in to the Cn~-~ART system at ths b~gim~[~g of their shi~, pr~or to p~r£o~ing any duties. C~~AKT h~ been operational at IAHHg0 sinc~ March 2005. Prior to th~n, fim~ ~d attendance was r~corded using a paper-based system. In accerdance with the labor agreem:nt wRh NATCA, TMCs' schedul¢d shift tfmes are posted at least ~¢nty-¢ight (28) days in advance of tb,~ shift. 8. P~or to ass~iug ~ operational pos]ti.ou, Mr. Pst~rson and o~cr TMCs at I~90 are requir~ to engage in ~'du~ familiarization?' ~vctions, w~ch include revwwiug the man~.to~ rmvbw b~ad~r and othcr briefing items and exchau#ng air ~affic cou~ol info~ation with th~ TMC b~ing r¢l~¢ved. Th~s¢ fuuctWUs are pa~ ofa TMCs m~larIy ~.ss~¢d drabs ~d are to be pe~ormed on duty tim.e, after si~ng
Page 3 of 4

000019

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190 TRACON

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PAGE

B5

system. Ideally, shifts arc designed to overlap so that these "duty familiarization" functions, including exchanging info~adon wi~ th~ ~C being relww~ occur d~ing the ~elWving ~d relieved TMCs .really sch~dul~ shi~. If fl~¢se ~ncfions cmmot be p~ffo~ed d~ng th~ cours~ ofTMCs' ~si~ed ~b.i~s, th~ F~ providss ovc~im~ or credit hours/comp~ato~ fim~ ifr~qucsted by ~e TMC for the ~Cs to accomplish these functions. 9. F~ m~agement doe~ not expect Mr. Peterson or ~y other employee at I~.[90 to perfo~ any work before or a~er their shifts wffhout compensation, Boflx prior to and. a~er fl~ Cm-X/~T system was implemented at IA~I90, FAA mmagement re~i~ly auNodz~d ~nd approved Mr. Peterson to work ovegime before a~d a~er his sNft to eompen.sate Nm for . work performed, 10. Mr. Pe~erson workg a flexible won schedule ~WS), which pewits him to beg~n his sN~ up ~o thi.~ (30) mJnute~ pNor to his scheduled shi~ at~ gme. He~gul~ly clots to "flex in" prior to his scheduled s'.hi~ ~ta~ ame. Frequently, Mr. Peterson has req~,stea to begin, his shi~ earlier ~an ~tW ~nmes before Ns sehednled shift s~ time. FAA management has

regul~ly approvea ~, Peterson ~hangg~g his shift in those si~ations, resulting in him being
.compensated for time worked prior to t~e odNnaI scheduled sta~ time of his sN~.

In accordance with 28 U.8,C, §1746, I declare under penalty of perjury that the foregoing is true and correct m the best of my knowledge and belief. Executed ou this 1 lth day of March, 2008.

Page 4 of 4

000070

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iN THE UNITED .STATES COURT OF FEDERAL CLAIMS

)
MARK G, ABBEY, et al., Plaintiffs, ) )

). ) ) ) ) ) )
No. 07-272C (3udge Emily C, Hewitt)

THE UNITED STATES, Defendant.

DECLARATI~O~OF Miles R,Miller I, IVliies R. Miiler,.deelat~ m~d, state ~ follows: 1. I am e~e~fly ~e A~ Tra~c M~er ~si~ to ~e Jacksonville Air Rotate T~c Co~l Center (~TCC) (Mso known by its F~ t~ee-lett~ id~t~ficr "~X'), Eastern ~ Rou~ Semite ~ Air Traffic Or~zation (ATO), F~N A~afion Administration (FAA), Dep~.ent ofT~spo~tio~ (DO~. I haveb~, in Nis positio~ since Ma~h 1998. t been ~. employ~ of the F~. since J~ly I974 N the foitow]ng ~Ntions: Air TrNI~e Contmt Specialist, Miami Center,..l'uly 1974. Air Tra!l~e Control Specialist, Greet Approach Control,.November 1979 Air Traffic Control. Specialist, Boston Center, April 1982 Quality Assurance Specialist, Summer 191t3 Area S~pervlso~,,. Boston Ce.n.ter, July 1985 Ar~a ~ger,Boston Center, August 1986 Operations Specialist, New England Regional Of~ee, August t98:8 ~Mxta Manager, Pensacola 'ITI_ACON, Augu.qt t 989

. Palle 1 o:f4

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i,

Systems and Facility Support. Specialist, New England Regional Office, February 1992

j,. k. I, . m,
.,

Assistant Air Traffic M~nager, Man.~hester Approach, Fcbrtm~ !.993 .Acting Air TmNe M~ager, M~ehest~ Appm~h, Febma~ 1994 ~ Tr~c M~ager, Manchester Appr~eh, October ! 995 Air TmNe Manager, Jaeksonville Cen~r, M~h 1998.

As ~. Air Tra~e Manager at ZJX, ~ong my duties is to m~age Nr TraN.e Con~l Specialists (ATCSs) ~si~ed ~ere, ineNdlng GaW Bukovskey. Mr. Bukovskey has been ~signed to Z~ since July 200I. Air Tra~e ~.n~ol SpeNNi~ ~si~ed to ZJX ~e ~presented by the N.ationaI. Air'rra~e Con~0llem As~oeiation ~ATCA). The !a~r ~eement between Ne F~ ~d NATCA eon~ a negot[at~ ~ev~ee pmced~e ~at allows employees to grieve issues sun:ounding their working eonditions, Neluding issues mg~ding pay. As a generai prhMpl.e, all 7~ ~aployees, inelud~g Mr;. Bukovskey~ ~re ~ompe~at~-for Nt worked performed, ~n.elud:ing won p~:fo~ed hef0~ or Mter their sched~ .s~, Nior to ins ta~uit, I do not m~! nor does the fhcgl~ty ~ve any reeord of Mr. Bukovs~y ever elalmtng t~t he was not eompensat~ for won perfo~ either before or after one ofhis seh~uied shi~s. I do ~t~ca[1 nor does the Nf~ have a record of anY ~evan~s fil~ by Mr. Bukovskey e~aiming~ai he ~s not eompm~at~ for work ~rfo~ ei~ before or ~r one of N8 scheduled s!fif~. I do not r~all nor does ~e Nei!ity Mve ar~oN of~y N.iev~ees fi!~ by NATCA N~ng ~~. B~ovsk~ w~ ~t ~mpen~ed for work peNbrm~ ~er befo~ or a~er one ofNz s~Med sh~.

Page 2 of 4

00002~

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4. FAA managemem at ZJX h~s never required, authorized, or expected Mr. Bukovsk~y to peffor~ wol'k prior m fl~e begi~ng of his schedtd~d s~ff or ~r fl~e seh~ul~ e~ of~s shi~ wi~out com~nsafio~. FAA mm~agement at ~X is not aw~e. af~. Bukovskey ever hav~g ~t~om~-ed work before or aRer his szh~tfled shift ~thout eompe~at~on. 5. When Mr. Bukovskey 'workz in ex~ss offo~ (4~).hours in a ~k, he.has been eom~a~d in the foma of ovealme pay or e~it hours oamed. He has r~eived ove~e pay for tho~ hours ~at he has bee~ requ~ to work in ex~ss of eight (8) hou~ in a day and eredi~ hours when he volunteer.to e~ th~n ~d ~ ~ m~g~! -,x,~k.for him to ~fform. Mz~ B~ovskey cotfld also lmv~ ~quezted to e~ eom~a~ time in l~au of over~ pay. Cr~it ho~ were ~uest~ by ~-. Bukovsk~ aad eam~ ~ aecordm~ce the pmvisio~ of appti~ble F~ directives. 6. M 2006, as. ta p~us y~rs, F~ m~agem~m at ZJX negotiated a memor~d~ of tmdersta~di~ (MOU) wi~ NATCA rept~ea~[ws at ZJX reg~ding the bidd~g of work ~h~ules ~d vacation leave. Tlae MOO smt~: 2; Each BUE wi~ ~ve a bid ~l]ing the date ~d t~e for each employee ~ bid, by their inca's sen].ofiU, for ~O's ~d V~eatioa Leave ~th bidding begimfing on November 05, 2006,, ~ tl~e event ~ employee ~6tl not be available~ be p~sent to bid, ~e employee sMlt p~vide the NATCA ~a rep~zent~ti.ve or the ~hedutiag .supewi~r with ~eir selection(s). 3. Each BUE ~I p~ded wi~ a detailed bJ.d p~kage t~t will co~n d~s ~d.times for selee~g ~30's m~d for five (5) rou~ o'fbtd x, aeation leave; Employees ~ ~ ~ele~. from. du~ I5 mh~utes prior to ~eir s~ed bid time, ~l~s not op~ation~ly feasible, for the bidding~ Employees will be ~lot~ 20 mim~tes to m~ ~e~ ~O ~d fi~t ~und 0f

Page 3 of 4

000023

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¯ vacation leave selection, and 15 minutes tbr each of the remaining f~)ur (4) roma&s of vacation leave. All leave requests w~ll be on foma OPM-7!,

In aecoixhmce with 28 U.S~C. §1746, I declare under penalty of perjury that the foregoing is true ~d eor~e~ 'to the best of my knowledge and belief. Executed o~a this ~-~ day of Febnmry, 2008,

Miller

Page 4 of 4

000024

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Memorandum of Understanding Between the N~tional Air Traffic Contr011er association, ZJX Local and Federal Aviation Administration Jacksonville Air, rou~e Traffic Control Center This agreement is made by and between the National Air traffic Association ("NATCA" o~" "Union") and the Federal A:~iafion Administration ("FAA~' or "AgenCy"), collectively known as 'the "Partie~," This agreement represents the Parties eomplet.e unders~andhig of the procedures to be used for I~DO selection and adm'mistration of leave, 1. Schedule biddhag will be aeem~aplish~ b~y seniority as determined by NATCA, NATCA will provide seniority information for each area. Employees wit'h two (2) radar sectors or less remaining unti[ becoming a CPC as of Noveaaaber 1, 2006, w:il~ be eligible to bid as a CPC. Employees who have previously been certified in ,an Area within Jaekso~wille ARTCC shall be considered as CPC's fo~: the pta'pose of bidding the 2007 schedule. Those employees deemed ineligible to bid as CPC's shall bid by seniority from designated Developmental lines. All developmentals who are certified on all their radar associate positions wilt bid as a radar developmental. 2. Each BUE wi!! receive a bid package detailing flae date and time for each employee ~o bid, by their area's seniority, for RDO's and Vacation Leave with biddi~g beginning on November 05, 2.006. In the event an enlployee will not be available to be present to bid, the employee ghall provide the NATCA area representative o.r the scheduling supervisor w~th-their selection(s). 3. Each BUE will be provided with a detailed bid package that will contain dates and times ~'o~" selecting RDO's and. for :five (5) roundz, of bid v.acat~on, leave. Employees wil! be released ~ona duty 15 m~nutea prior tc~ their scheduled bid tibiae, unlezs not o.pea-afiona~ly feasible,, f~r the puz13o.se of bidding. ErnpIoyees will be allotted 20 minutes to ~mke their RDOand faust round of vacation leave selection,, and 15 minutes for each of the remah~ing f~ur (4).rounds of Vacation ~eave. AII leave.requests will be on form OPM-71. 4. Employees may only request leaveopportunitic~.that the Agency ha~ deteri~olned are available. Forthiz yem" the Agell~y has determined the following; A. Up to two (2) employ~e~ p~r.area, per day,can be .on vacation leave betnvee~ 2amlary 7 mad May 12, 2007, B. Up to orm per crew, per day, from May 13 tta'ough August 12 and December 23, 2007 thru Jtmuary 5, 2008, C. Up t~ three (3) employees per area, per day~ between August 13 and Deeeanber 22. D. During each round employees may make one (1) request o'fone (1) week ortwo (2) consecutive weeks duration or portions thereof. Any pin, ion of a week bid shall count as a full week tbr bidding putgoses. During these. five (5) rounds employees ~n b~d accrued annual leave, almual leave tha.t will be accrued during the year, mad any restored balatic.e for the year. Once you. PASS a round you will not be able to bid any longer.

000025

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5. Employees may sublNt (using formOPM-71), request for ~a-v~eation leave beginnhag January .1 :far the leave year ending Jmmat2 5, 2008. Tl~is MOU tet~nkaates January 5, 2008.

Agency Head Review

Date

Case 1:07-cv-00272-ECH

Document 29-2

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FROM :FAA MMU

F~.b. 28 2888 84:5-?PM P2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS :' MARl( 6: ABBEY, ~t al., .PlalntilTs,
V,

) ) )
) )

)
)

No. 07-272C (Judge Emily C, Howitt)

TI-FE UNITED STATES, Defendant.

__)

) ) )

DECLARATION OF FRED,,!~,~OSPERI

i, Fted Prosperi, deolare and stae as 'Ibllows: 1, I am o'urrcn@ tile Air Traffic Manager of the Morrismwn, New Jersey Air Traffic Control Tower (ATCT) (also known by its fln'ee-let'tcr tdmatifie~. "MMu"), Eastern Terminal Setwbes Unit, Air Traffi~ Organization (ATe), Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT). I have b~em i~ this position since June 2004. I h~ve bc~l an employee of the PAA since August 1982 in the .~ollowing positions: Developmontal Air Tra:l.':fic Comrol Specialist, New York TRACON; November, 1982 - Febraal'y !984. Air Traffio Control Specialist, Roches!;er, NY ATCT; February 1984 De~emb~.r, 1988 Air 'I'raffie Contt'ol Sp~oialist, Nawarlq NJ ATcT; Deoember 1988 - August 1997 Support Speeialisi, Newarlq NJ ATCT; August 1997- Oolober 1999 Regional AT Sp~eialtst, Eastern Region ATD; October 1999 - June 2004 2. As Air T.~'affic Manager of MMU, among my duties is to manage the Air Traffic Conta'ol Specialists (ATCS) assigned there, including Frank Sawsta. Mr. Savasta hds beon assi~ned to MMU sin~ December, 1990, Air Traffic Control Specialists assigned to MMU are rc.q~rese~ated by the Nationdl Air Tl,al:l] Controllers Association (NATCA). The iabor

Page 1 0£3

.. ,.000027

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FROM :FAA MMU

t~greemen~ between the FAA artd INATCA contaills a negotiated grbvaaoe prboedure that

allows employees to grieve issues stm'ounding their wm'klug' conditions, Including issues rogarding pny. : ,.

AS '~ i~n~ral pdnNpleo all MMU employees, tneluding Mr. 8avasta, are eompensat,d :l'br all worked pro'formed, Including work I~Odbrmed before or affer their sched~!l~ sl~ifts..Prior to. thi's l~wsutt, I do not recall leer doe~ ff~ facility have any retmrd of Mr. Savast~ ever ~laiming that hd was not compensated for work p~formed either b~fore or afbr one' of ills sche~iuled shifts. I do not recall nor does the facility have a reeo.rd of may grievances filed by Mr. Savasta clalmh~g that he was not compensated for work performed eiff~er before or of hie scheduled shifts, I do not recall nor does fl~e t~eil]W have a record of any filed by NATCA ~laiming that Mr, S~ivasta w~s not compensated for work perform6d' ~ither before' or after one of his scheduled shifts, 4. The Mort'tstown ATCT controls air traffic from 6;45 ram. to 10:30 p.m, looal ~a¢, seven days d weok. 'The "opening" shift (br ATCSs is roguiad.y schedubd t6 begin ~/~ 6:15 a,m. local time in order for ATCSs to eomplob ul] of~o rusks requir~ to op~a ~ ~on~bl bwer prior tb 6;45 a.m.' ~o ATCSs are norm~l~y ass(gned to the (~penhag slfi~ F~ m~agemmat heifer expects nor requires ATCSs, (nelud~g Mr. Sav~t~, ~ p~db~a~ ~y ths~d prior to the st~ o~ their ~h~duled shi~s, Including )bllo~ng procedures to op~a the ~0nb.ot ao~or, The tasks performed a'8 p~ o£~hd ope~ag proced~'es ~ pea o£ ~ ATCSs r~r @ork a~ig~ems m ~e earrled out while in a paid status. ""

The "olosing s~fl" at Morristo~a ATCT is regularly scheduled to end at.] "~~d4wo 0:30 p,m, ATCS~ are n~rm~ly' a~si~ed to that shtl~. ~AA. m~agemeat aei~ e~e~ts ~or mq~res

....... 000028

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FRDM ;FAA MMU

FAX NO. :i~T~5386629

F~B, ~8 21~8 ~4:58PM P4

including ']'.bllowing procedures b close the control tower. The ta~ks performed elosin~ p.roeedu~es m'e .pa~ o1' an ATCS~ regulm: work assignmen~ to be ea~bd out w~le a paid status. In aecord~ee ~th ~AA policies, ~1 ATCSs, Including Mr, Snva~a, are ~qu~red ~ ~ign-in to ~o Cm-~ART system at ~e b0g~fng of their shi~, prior to performing any duties. CruX/AKT has been operational at M~I since April 2005, Pa'tor to that time, t~ and a~ndanee was .recording using a pa~er-based syste~u, in aeeordmae~ with ~lae labor agreement wl~ NATCA, ATCSs scheduled sht~ times a~'e posted at least ~nty-etght (28) days in advance of ~e shi~ .... . . A~r T~ Con~ol SpeeialBts ~signed to MMU bid ot~ their work schedules ~eo~'d~oe wi~ proeodm'¢s negotiated ~th NATCA. All b[dding by ATCSs is conducted on duW lime. Similarly, ATCSs assigned to MMU bid on their vacation leav~.~h~ps:~qe~ yea~' in aeeord~ce ~tlI pl'ooedures negotiated with NATCA. All.bidding by A'!:~Ss conducted on duty time. ':

In accordance with 2g U, S,C. § 1746, I det~l~tre trader penalty el' perjury that the for~gbin, g.ls: true and correct to th'e best of my blowledge and belief. Executed on this 28th day of February, 2008,
..~~:7:,.,. ¯ ~'' .~,.~" "

t~'RE; PRp~RI"

Page 3 of 3

....... 000029

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IN THE UNI~D STATES COURT OF FEDERAL C :ALMS

MARK G. ABBEY, et ai,, Plaintiffs,
V,

) ) ')

) )
No. I07~272C (Judge Emily C. Hewitt)

THE UNITED STATES,. De~'~ndant.

) ) )

DECLARATION OF JUAN FUENTES

i, Juan Fuentes; declare and state, as follows: 1. I am cun-ently the Assistant Air Traf~c,Manager 0!'tlae Miami Air Traffic Control Tower (ATCT) (Mso known by its. three-letter identifier "MIA'.'), Eastern Terminal Service Unit, Air Traffic OrgaafiZafion (ATO),. Federal. Aviation Administration (FAA), U.S. Department of Transportation (DOT). I have beel~ in this position Since Jtme~ .1999. I have: bee~1 ~m employee of the FA,A since May, 1988:in the:following positions: Air Traffic Control Specialist, Tucson Towel! {T.U8), May: ¯1988 -.F~bruary, 1990; Air Traffic Control Sp~'~iai.ist, Tucson TRA~ON .(U90)o :Febma[y 1 ~89 ~ April 199 i; ~" Trifle Con~01 Speeialis~ San ~uan CE~P ,(~S.U), April !991.- ~ay:.! 992; Plans & Progr~ Sp~gialisL S~ Juan CE~ {ZSU), May 1992 - Mard~ 1994; Supe~igot.y A~ Traffic. Comroi Specialist, S~ Juan CEP&P (ZSU); Mm'ch 1994 - O~ober 1996; Resource Matiagemen, Specialist, F~.Southern.Region (A80-540), October 1996 - June 1999. 2. As Assistant Air Trafl]c Manager ofMIA, mnong my duties is t0.mmaage the .Air Traffic Control Specialists (ATCS)assignedthere; including Katherine Adcock. Ms..Ad¢od{!has beeti~assigned ,o MIA sine~ March 1991. Air TraiSJSe Control Specialists assigned to.MIA are ¯ represetlted by the National Air Traffic Controllers Association 0gATCA), The tabor

Page 1 o:F3

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:agreement between the F2AA m~dNATCA eonta~s a negotiated grievaneeproceclur~.that allows employeesto grieve issues sun.ounding thak working conditions, includingissues regarding pay. 3..As a general principle, all M~.employees, inoludi:ng Ms. Adcock, are compensated fdr all worked performed, including work perig~med 5efore or affer, fl~Nr schedule shi~s. Prt0r to this lawsuit,. I d0 :i~0t recall nor daes:fl~e Neility ha,e ~y:reeord of.Mr. Adc~ek ever claiming tliat she NaS-~oteompensated for wot'k performed Cilhet beiSre or after on.e of'her scheauled shiRS Or for time spent blddlng:woN schedule ~r vacation iea~e While off duty. i do not recall nor does the Neility have a record 0f m~y g~ievm~ceS file6 by MS. Ade0ek ¢laim~g that slie was not c~mpensatad fro: work performed ei~er before or aKer one of her ~Ched~led SNflS or tbr time spent bi~di~g whii~ .off du~. [ do no~ re~Nl nor does ~e facil[~yhave a record of.any N'ievm~ces Ned by NATCA claiming tbat Ms. Adcock was not compensated tbr work: pert'onned eifl~er before or after one of her scheduled shi~'ts or for time spentl~idding w!file Off du~,. 4. There was norequ]xement for or expectation that Ms, A~eoek or m~y o~er ATCS at M~to bid while off duty, ~he FAA m~d NATCA provided for a proxy system, to allow employees to sub~tfl~em Nds'~ead o~t~e if they were gog~g to be out o[lhe facility when: th~h' b:idding ti:m~ occurred. 5. In 2007, FAA.m~agement at ~A neg0tiated a memorandum ofm~derStandlng (MOU) with NATCA repr~gentatlv~S .at MIA that addressed procedm~es for bidding work scl~edules~ (Atlachmenl 1). ~e MOV provided that emp!6y.e~s who Would beabsent t¥om ihs facility on thei~ bidding days could, prior to.their: absence, Nve thei~ bid ~equests m m~ Op~ati0~al

Page2 of 3

000031

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Supervisor-in-Charge (OSIC)or a Controller-in-Charge (~IC) so that.tl~e OSIC]CIC could bid. for them. (Attachment l),
6,

In prior years, NATCA was in ~Imrge of the bidding. 20{52 Frimetime Leave BiddingNotice (AttacNnent 2); .2{)05 Primetim~. Leave Bidding N6tie~ (,Attachment 3), In 2005; N ATCA indicated in its bidding.notice that ~mpldyees could bid. us~ ~ proX-y. (Attac!~ment 3).

In accordance with 28 U.8.C, § 1746, I declare under penalty o~ perjm'y that the foregoing is true and correct to the. best of my lcnowledge mad belief. Executed or~ this 4 df~y of Mm'ch., 2(~08.

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MEMORANDUM OF UNDERSTANDING BETWEEN THE NATIONAL AIR TRAFFIC CONTROLLERSASSOCIATION AND THE FEDERAL AVIATION ADMINSITRATION

This agreement is made and entered into by local National Air Traffic Controllers Association (NATCA), MIA Local, and the local Federal Aviation Administration (FAA), MIA ATCT. It represents the parties' understanding and agreement on the employee ¯ rotation through shifts and the procedures for bidding the basic watch schedule at.-MIA: The following procedures will become effective from the date of the Agency Head'~ review/signature. ~--. 1. Basic Watch Schedule (Attachment 1): . a. RDOs i. The basic watch schedule will consist of 7 teams assigned to seven (7) set of Permanent Regular Days Off (RDO) as indicated in attachment 1, b. Shift Rotation i, All personnel are assigned to an eight (8) hour flexible scheduie,, ii. The shift rotation will b~ l:~rmanent as indicated in attachment 1.
o

,

Basic Watch Schedule / Bidding Process:

~-' "

a, One week prior to bidding, Management will post a notice, informing eaeb eligible CPC of their date and times to select a schedule line. b. The new schedule shall become effective on January 6,.2008. c. Bidding for assignments to the permanent RDO teams will be conducted via Webschedules until the selection process has been completed.
d. Eligible bidders shall choose, a schedule line during the bid cycle by entering their selected line on their b~dding day and designated time.

e, An employee who will be absentfrom the facility on their bidding days shall:
i. Prior to that absence, submit their schedule line requests to the OSIC/CIC for submission, or,

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ii. Provide the OSiC/CIC, either by phone, or in writing, their requested schedule llne prior to their bidding date/time. 3. This MOU shall expire at the day prior to the first full pay period of the following " calendar year, and may be extended by mutual agreement of the Parties in writing for another year.
!

Date

Agency Head Review

Date

Attachment 2

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Dec. 01 05 11. :27a 0ALCASOLA

954-385.~324

p,1

PRIMETIME LEAVE BIDDING No'rICE
On or about January 25, 2002~ NATCA Local MIA will begin bidding Prirdetime Annual Leave ~r the Prlmetlme Leave Pedod defined.below, Sunday, May 26, 2002 to.Monday Sept, 2, 2002 Sunday, November 17, ,2.002 ..to Saturday, NoVember 30, 2002
Wednesday, December 1 ~, 2002 to Wednesday, January 1,2003

Everyone is guaranteed a minimum of two con~ecutive or non-consecutive weeks of Prlmetlme Annual Leave during the above Prime Time. period. We will be bidding Prime Time Leave differently tha~,we have the past couple .of years, That is; we will post a sertlority list and bld i.ndivtduall~/~-not aS groups. The seniority list will be posted next to the roster~. Please write your narne In. the slots and cross your name off the seniority llst.: Please be sur~ Team Number, and place Inlhe NATCA Lock box !n the breakroom; ..A~ "& B" controllers are bidding independently Of one.another,'developmentals will bid In turn, if your nameis next on the list please BIDI .. The following will be utilized throughout the bidding process; Each Individual, when it is ~he[rturn has 4 (four) hours to bid after notification. Notification maybe by telephone or upon arrival at the faclllty. If you do no1 bid within that time frame YOU WILL BE SKIPPED!!Z! ¯ , If you will be out oftown or on leave during this process, .please leave a proxy or phone number where you can be reached. If for some reason you are unrea(~hable for a period of four (4) days you will be skipped. NO EXCEPTIONSI!t!

If you have any questions, ~_~ase see any NATCA officer,

Lorl Rebhan January 14, 2002

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PRIMETIME LEAVE BIDDING NOTICE
On or about December 5, 2005, NATCA Local MIA will begin bidding Primetime Annual Leave for the Primetime Leave Period defined below. ¯ We will be bidding Prime ~Fime Leave differently than we have the past couple of years. That is, we will post a seniority list and bid on TWO weeks of leave, After everyone has bid their first two weeks, we will start again from the top, each person bidding ONE week of prime time in the remaining available space. Finally, we will start again from the top of the list and each person will bid ONE week in what's left. Therefore everyone will be bidding on 4 weeks of primetime in one two week, and two one weeks blocks. Primetime is now for the entire year. The old prime time periods (Spring Break, Summer, Thanksgiving, Christmas) will now have 3 A-side and 3 B-side slots available. The rest of the year will have 2 A-side and 2 B-side slots, The seniority list will be .posted next to the roster, Please write your initials in the slots and cross your name off the seniority list. Please be sure to fill out an SF-71 and place It in the leave box in the tracon. The following wi I be utilized throughout the bidding process: , Each individual, when it is their turn has 4 (four) hours to bid after notification, Notification may be by telephone or upon arrival at the facility. If you do not bid within that time frame YOU WILL BE SKIPPED!I!! o If you will be out of town or on leave during this process, please leave a proxy or phone number where you can be reached. If for some reason you are

unreachable .for a period of THREE (3) days you will be

Skipped. NO EXCEPTIONS!!t!
Because of the increase in staffing numbers, it is imperative that you plan ahead, since spot leave will be extremely limited, so think carefully about those extra two weeks. Also, since we're off to a late start because of the "negotiations", and, because we're bidding on so much, it's vital that everyone get there bids done in a timely fashion. The three day rule above is not an idle threat. Good bidding everyone.

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

MARK G. ABBEY, et al., P'laintiffs,

THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) ) ) )

No. 07-272C Judge Emily C. Hewitt

DECLARATION OF JOSEPH N, MINIACE I, Joseph N. Mirtiace, declare'and state as follows: 1. I currently serve as Deputy A'ssistant Administrator for Strategic Human Resources and Labor Relations in the Office of Human Resource Management (AHR) with the Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT). I have been employed by the Federal Aviation Administration since May 2005. One of my primary responsibilities is to provide oversight for the Office of Labor Relations which handles the negotiation and administration of twenty-seven (27) collective bargaining agreements for forty-five (45) different bat'gaining units. 2. I served as the FAA's Chief Negotiator in the most recent contract negotiations with the National Air Traffic Controllers Assoeiation (NATCA) ibr the contract covering, among others, Air Traffic Control Specialists (ATCSs) and Traffic Management Coordinators (TMCs). Barry K_rasner served as Chief Negotiator for NATCA. The negotiations commenced in July 2005 and the Parties negotiated for approximately

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nine months, including one month of mediation under the auspices of the Federal Mediation and Conciliation Service (FMCS). 3. During negotiations, the Parties tentatively agreed upon 101 contract articles, including Article 32, Watch Schedules and Shift Assignments, and Article 34, Working Hours. The Parties bargained to impasse over nine other contract articles, including Article 24, Annual Leave, and Article 38, Overtime. The articles at impasse were submitted to Congress and then implemented by the FAA pursuant to authority granted under 49 U.S.C. §§ 106 and 40122. The FAA implemented its final l~argaining offer on September 3, 2006, pursuant to authority granted under 49 U.S.C. §§ 106 and 40122. 4..Begim~ing in April 2006, NATCA filed a series of unfair labor practice (ULP) charges with the Federal Labor Relations Authority (FLRA) alleging, among other things, that the FAA had not negotiated in good faith; had impermissibly submitted the impasse to Congress; and had implemented the contract prior to the completion of bargaining. ULP Case No. WA-CA-06-0366 (April 7, 2006); ULP Case No. WA-CA06-0563 (July 11, 2006); ULP Case No. WA~CA~06-0648 (Sept. 6, 2006) (Attachments 1-3). 5. On July 25, 2007, the FLRA Regional Director dismissed NATCA's ULP charges. Dismissal of ULP Case No. WA-CA-06-0366 (July 25, 2007); Dismissal of ULP Case No. WA-CA-06-0563 (July 25, 2007); Dismissal of ULP Case No. WA-CA-060648 (July 25, 2007) (Attachments 4-6). In dismissing ULP Chm'ge WA-CA-060366, the FLRA Regional Director addressed the issue of NATCA's right to ratify the contract, stating: "In circumstances where NATCA did not hold a ratification vote,

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the evidence does not establish that FAA's conduct deprived NATCA of an opportunity to exercise this right." Dismissal of ULP Case No. WA-CA-06-0366 (July 25, 2007) at 8 (Attachment 4). 6. NATCA appealed the dismissals to the FLRA General Counsel (GC) on August 27, 2007. Order Denying Appeal, Case No. WA-CA-06-0366 (Jan. 29, 2008); Order Denying Appeal, Case No. WA-CA-06-0563 (Jan, 29, 2008); Order Denying Appeal, Case No. WA-CA-06-0648 (Jan. 29, 2008) (Attachments 7-9). On ~lanuary 29, 2008, the FLRA GC denied NATCA's appeals of the dismissals. Id. NATCA filed motions for reconsideration of the deniaIs with the FLRA GC. On Feloruary 26, 2008, th,e FLRA GC denied NATCA's motions for reconsiderafion. Order Denyh~g Motion for Reconsideration, Case No. WA-CA-06-0366 (Feb. 26, 2008); OrderDenying Motion for Reconsideration, Case No. WA-CA-06-0563 (Feb. 26, 2008); Order Denying Motion for Keeonsideration, Case No. WA-CA-06-0648 (Feb. 26, 2008) (Attachments 10-12). 7. The FLRA's dismissal of these UL? chm'ges upholds the Agency's position that the Parties were at impasse; the FAA's submission of the impasse to Congress was proper; and the FAA's implementation of the contract upon the expiration of the 60day Congressional review period was in accordance with applicable law. The FLRA has recognized the tegality of the FAA's actions in negotiating and implementing the 2006 ~ontract with NATCA. 8. Article 38, Section 9 of the ~2006 contract addresses the earning of compensatory time offfor bargaining trait employees. 2006 NATCA/FAA Contract (available at https://employees.faa.gov/or~/s(affofftces/ahr/labor relations/agreements/media/06-

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06%20NATCA%20CPC-%20Bus%200061%201545%200053.pdf). The 2003 contract contained a similar provision in Article 38, Section 7. 2003 NATCA~AA Cont-raet (Attachment 13). Article 34, Section 7 of the 2006 contract adckesses the earning of credit hours for bargaining unit employees. 2006 NATCAJFAA Contract. The 2003 contract contained a similar provision in Article 34, Section 8.2003 lqATCA/FAA Contract (Attachment 13). The 2003 contract was also supplemented by an agreement between the FAA and NATCA that provided e