Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:07-cv-00272-ECH

Document 25-3

Filed 03/12/2008

Page 1 of 28

During the many ~onths of contra~t b~xgai~g, including six wev~ ofmodia~on wi~ Fcd~ M~iafion ~d ~no~ton $~co ~CS), ho~ p~i~ r~oatvdly rv~s~d ~oir proposes ~d ~ concision. Th~ p~ re~ a~c~t ~ 100 von~ ~¢les, but not a~¢e on o~. ~ Ap~l 5.2006, F~ s~mt~ i~ fi~ contact proposal ~ ~m Con~ss ~ok no ~fi~ on ~= matter ~ 60 ~ys, F~ not~od NATCA ~t tm final ~n~act proposal wm ~ cffv=t. ~ NATCA did ~t a~v ~at ~re wm a fred a~cn~ it did not ~0aduct a ratification vo~ on F~'s ~ contact NATCA alleges that ~he ovsratl pattern of FAA's conduct in ~e n~gofiafiom o~den~ed bad ~th b~g. ~ this ~g~d, NATCA o~ ~at F~ b~g~ed ~m a fix~ position pay mu~er~, ~ ~ ov~ goal to ~a~ ~pmse, sub~t $~ ma~r ~ Co~s~ ~d impl~eat its dosed ch~gos ~out m~mdng~ ~p~s~ resol~fion. NASA ~ ~s~, ~ e~d~~ o£ th~ ov~ll paRem of conduct (l) ~F~ ~prop~ submiR~ ~er v~o~ of~clos 4 ~d 63 to Con~s, m~r ~ what ~e p~es had t~m~w~ a~ed on these ~Ic1~; (2) . F~ i~t~ ~o ~p~s? on p~s~ve topics ~ &s ne~aflon of ~clss 17, 18, 33, 38 md 105; (3) ~t F~ ~gaged ~ re#esslve b~g wilh resp~t Io ~eles I 8, 38, 105, F~ili~ ATC levdsldewlo~en~ pay stages; (4) &at F~ ~b~ed NATCA's Pay A~s~on propos~ ~ Con~ b~ ~d not ~b~t a mmagemont p~pos~; (5) ~t ov~ ~nd~t ~aunted to s~ce b~g~8 ov~ NAT~'s propo~ ~cles ~ C~ld C~ Subsidies, Student ~ R~a~ D~d~t ~o~on, ~d ~i~t T~g IncentiVe; (6) ~m F~ d~ied NATCA ~o o~o~y to sonnet a rafifi~fion veto; ~d U) ~at condu~t when ~e p~s met for ~ ~ fim~ on Ap~ ~, 2~6 ~d0n¢~ a ds~ to ~h i~s~ ~thor fl~ t~ census b~g~. NATCA also ~~ton~ ~at b~uss of~s Mlo~d bad ~ M no~a~om, ~p~os w,m no~ ~ ~p~, on April 5, 2006. ~ ofNATCA's sprcifio allegations: .Artiqles.d and 63.: The pRrti~ initialed Artido 4 as TAU ou lmuary 1 I, 2006 and Ar6~le 63 as TAU on February 20, 2006. When FAA made it~ submission to Congress on April 5, 2006, it included versions of these artiole.s f~om e.arli~r in the m~gotiations. Therefore, what was submitted to Conies did not inoludo the TAU lang~ge, The FAA in01uded the correct, TAD language for both Article 4 and Artiole 63 wh~ it implemented its final on~ra~t proposal on Septeanb~r 3, 2006, ~sistenc= tot ]'~n_~ass= on Perrn!~iVe T~ics: NATCA obj0otod to FAA' s.last offer on Ardoles 17, 18, 33, 38 and 106 on the ha,l, that it would foreolose negotiations during th~ tif¢ of the agreement based on "covered by." The pro-ties had agroexl in bargairting ovgr Article 7 to wry limited local level bargaining and to a waiver of the second prong of the Authority's "¢o#er~l by" te~t. In NATCA's view, FAA's props ,s~.ls on those fl.v.e articles Contained language that would rendar co~tain subjects "spedfleally sontained" in the a~mnen~ and, therefore, subject to the first prong of the "cove.red by" test. NATCA tugu~ that agreeing to th~ inclusion of this language was pormisstvo to ths union and that FAA mag~g~d in bad faith bargaining by insisting to impasse on th~ inolusion ofthe disputed langu, ago. Reef_ essiv¢ Bargaihin~ NATCA alleges .that FAA's conduct with rospe.0t ~o four ~ntract " provisions evid~ced regresdv0, bad .faith bargaining. NATCA raised the allogatiom with respect to thr~ of these artioles. Controller4n-Chargo, Duratiott of Agreemon*, and Facility ATC

000046
iI

Case 1:07-cv-00272-ECH

Document 25-3

Filed 03/12/2008

Page 2 of 28

P.O4x15

Levels in s~arat¢ umCair labor 1)ract~¢o charges ~ w~oh it w~ aa~g~ that F~ ~ ~¢ F~ h~ not ~&a~ ~m prior a~em~ls ~d, ~r~fo~, h~ not ~gag~ in

add loc~ lewl b~g owr ~,~t proo0d~¢s, ov~mo b~ ~¢m~diss, ~p~v~ng ¯ o ~ion ~ ove~c r~t~s. M ~fion, NATCA pm~a~d now ~s ofovo~o pay c~n oiroumst~c~, ~.g. whm ~o omploy~ w~ ~¢ady ~oiv~g d~¢r pr~ pay. NATCA also ~pos~d a d0~aition of~o bo~g a~d ~n~ of~ wozk day sections 11 ~d 12, o which ~ ~st~0y obj¢~ ~o woma not a~¢o. ~ ~n, ~ou~out ~ no@tinder. P~ aase~d ~a ~ ~o propos~ mi~t be n~gofiabl~. The parties discussed their proposals and ~¢vised th~n repeatedly throughout ~e nvgofiations, but n~v~r ~oac2~ arced'hint on Owrtimo. I~AA did not alt~ i~ position ~ m~g i~ ~t ~te~zopos~ on Feb~ 17, 2006. NATCA's p~osod s~ions 1 iaud 12 ~cd key p~s of~o dispu~ At ~o ~ s~ On April 5, 2006, NATCA offered a rovl~e~ ~oposal no--petiOle. Y~ u~i~ a~o~ or ~a~d wl~ ~s ~sos~t. ~ATCA r~uest~ a ~ ~legafion ofno~egofi~ih~. F~nev~pm~ ~ ~lvga~on. kstog, onAp~ 5, 2006, F~ sub~cd bo~ p~¢s" ~ off~s on Ovort~ to Con~s, ~ p~ of~ ~p~¢.
Surface B~g~ting: During the negotiations, NATCA pmpos~ five ent~ly new ~olss ~fl oon~ds ~at F~'~ oo=flu~ wi~pe~t to ~s~ proposals oviducts ~, b~ f~ b~ng. A~ ~is o~ge w~ ~, ~ Au~st 2006, ~o Aut~fi~ fo~d ~g ~o ~osv ~o~, ~VoMng a proposvd R~way ~o~sion ~ro~, w~ ou~id~ ~ duty m b~g~.
Childca~¢ Subs|dj¢~: The parties disou~s~ NATCA's pmpos~ artiols on ¢hildoaro subsidies on Aught .9, 2005 and again on D~c~mbsr 1, 2005, but I~AA did not make any countvrproposal. Wliva NATCA i~iquired about when it would rrcoivo coantrrpmposal, FAA. assorted either that the issue was not negotiable or that it was p~anissiv¢. Aside from those oxr, hangvs, tim parlics did not discv~ the roarer again until ~ final se~sston on April 5, 2006. When a~k~d to rake a sp~ift~ position at that FAA zcjcot~ the proposal on the merits.

~;~d~t Lo.a~ ~aym~ts:. Thc parties dls~uss~.this proposed m'~iole on October 12, 2005, but FA.A. did not offer o.Ry rotmtorproposals, Once or twloo during the oora'so ofnrgotlatlons, NATC, A asked when FAA would make a cdhn~rproposal on this oz~i¢le. FAA ass¢~t~d that the article was oithcr nonnegotiable ot permissive, FAA never made a ¢ouuter-proposal to the union's proposed stu.drnt loan mpaym~-nt artlcl¢. When NATCA aske~ FAA for a spsoifio portion .at tho final moo~ing on Apkil 5, 2006, FAA rej~c.tcd the proposal on the merits.
Th~s~ allegations were addressed in the dlm~aal kRcrs issued ~oday in Case Non. WA-CA~06-0358, WA-CA-Oti. and WA-CA-06-07! 6,

3

000047

Case 1:07-cv-00272-ECH

Document 25-3

Filed 03/12/2008

Page 3 of 28

~pondont Y.~du~a~on: Payment for Non-CONUS depond~nt ~ducmjon ~ DODDS ~oI~ oxis~ ~ a p~¢o for ~ATCA ~t ~y~ ~ ~ ~ 2005/6 ~on~act n¢~tlatio~, NATCA p~o~¢d ~ m~ it a m~ of a~t. ~ h~

a~empted to ~at~ ~e pr~fioo prior ~ ~e nego~utio~. ~~ p~s fi~ ~scusscd
~ATC~'s propos~ ~n~t ~cl~ on D~mb~ 1, ~005: The ~on ~d ~o~ ¯ e ~ ~ wh~ a~ of the d~pendents.eov~ by ~e NATCA p~o~s~ w~ e~b{e. The ~i~s ~s~s~ a revisM NATCA proposal On D~bcr 8, 2005, but
~O~[~ ~y ~te~r0pos~ b~fore F~ d~l~d ~ imp~so in b~ing. NATCA ~s ~at ~ F~ n~v~b~ed ove~ ~ propos~ at all Accords ~ NATC~

~m ~ outs0t, F~ i~gt~ ~t it had decided to m~te ~s Iong-st~g pr~tioe ~d ro~s~ ~ b~ ~ ~ union's ncgo~able proposal to osmb[i~ a ten, actual pm~ for pang ~ucatlon ~ for d~den~ ~ non.CO~S locations.

Flight Training: The FAA did not ma~o any ootmt~r-proposals on NATCA's propos¢~ con~ ~o m ~do ~t ~g inc~fivos for ~ ~o oon~, The p~pos~ was ~sc~aed a~ ~e b~ng t~lo ca D~c~bor 6~ 2005. P~ ~d not ~gago ~ ~ disoussionof~o ~po~ or a~¢¢ m it, D~ng ~o ~scussio~ om P~ negotiator ms~ ~g ~o proposfl w~ ou~ido ~ d~ to b~ga~ as it did not involve conditions of~p~. ~o~¢r F~go~tor ~soR~F~ould not a~e¢ to ~~ pmpo~fl b~auso m~gem~t did ~t wmt ~ ~vo aw~ds to ~ploy¢~ for ¢~mot~ ~e~ o~ pmm~ionpro~. ~o ~iclo w~ ~ong those subdued at

~pdl 5. 2006: The FIvICS Cothnti0sioner had rol0ased the parties from mediation on Match 31, 2006. The April 5, 2006 session was sohodule.d as the final mooting to review the status ofproposah. In the absoa0o of agrcom~t, FAA intended to submit its final offer to Congress that day. The meeting on AprL15~2006 took place at th~ NAT~A offices. The paflies started in the morning t~vic~sring all ofth~ articles, or~ by oneo NATCA, verbally, made a n~¢ offer on Pay. According to NATCA, ~he parti~ had made l~rogress on pay issues iduring mediation. Throughout the negotiati6as, NATCAhad moved toward the FAA's Pay proposals. FAA olairacd that lqATCA wanted to revert to tl~ ¢urcaut system when the. contra~t ~xpited, NATCA insist~ it on pres~:rving the fight to bargain to renew the system after the expiration of th~ ~ontraot, This disputv was odtiokl to the negotiations on Pay and is referred to as savings in
the out years. " .

When NATCA madeira now proposal,,FAA discussed the issues and appeared rec~tivo, even offering verbal =ountors. FAA agreed to re.view th~ r~viscd NATC~, proposal and NATCA agreed to provide it in writing. ~ust before tl~ lunch broak on April, 2006, NATCA gav¢ FA.A. the written proposal. ABet luucih th¢ parties discussed NATCA's proposal and FAA rojoot0d it. FAA explained tI-mt th~ proposal was not acceptable because tt'did not offer savings in the out years. The parties th~ continued discussing the arfiolm still in dispute.
Sora~ of the YAA's bargaining team members did not appear at the afternoon session on April 2006. in mid-al~emoon, FAA.'~ Chief~vgotiator d~clarod gtl impasse. Before th~ FAA. t~am 1~ tha NATCA building on that day, two things h~pp~d that NATCA bvliaves were sigrdficant. 4

000048

Case 1:07-cv-00272-ECH

Document 25-3

Filed 03/12/2008

Page 4 of 28

P.OG/15

l~h~, ~h~ FAA Adrain~strator hbld a pr~ confecence to ~amoune~ th~t*h~ p~fies wore at , hnp~se a.ud *he dispato had h~n submitted to Congress, Also. a messenger arriveA to serve NATCA with a copy of FAA's submission,

Based on thes~ events, NATCA argues that the FAA was only interested ia reaching impass~ and not in roaching agreement on April 5 and that its coaduc~ ~mo~t~ to bad faith. P_~: NATCA also alleges that FAA engaged in bad faith conduct negotiations on pay by baxgainiug from a fixed position over pay matters. FAA contract negofia~iorm insisting on ohaugl~ the NATCA pay syslem to be conshtent with the zest of the agency and to ~educo osoalating costs, Tt~o. ughout tho n~gotiatlons, FAA ~ook th~ position that the existing pay ~stom and NAT~A's proposals ~o oxtcnd it wc~e not effective ~d cost too much. The parties did make progr~s in thek ncgodatio.ns over pay matters, but.were not able reach agroomc'nt, tu *he end, NATCA held out for a~ agreom~ut to.allow room f~ to m~tablish the existing system when the contract ~xplr~d and FAA insisted on securing out year savings by establishing the new rules on a permanent basis, As additional ¢vid~oo ofbaxgainlng from a fixed position, NATCA points to two dooumont~ it r~ceivod unoffi~ally during the negotiation, On~ ofth~s¢ documents is clearly*he result of a management vffort to engage iu s~tcg~c planning for th~ contract negotiations, This incIudes identifying sides' perceived n~gottgion positions, strengths, and wcalmesscs. FAA's Fa]lhaok position on the issues ia listed as rca~hlng impasse. The oth~r document apparently iS notes from a confereno~ call in which managor~ w0~ gives aa updato on the NATCA contr~t, Au urmam0d individual is noted as stating during this confozonoe, no pay baxgakdng with NATCA, Pay Adm~stmfion: NATCA contends that FAA e.x~gag~d in bad faith bargaining by submitting only thv NATCA version of the.Pay Administration Arfi01o, FAA proposed to dimtaato the Pay AO.minlstration Axticle and include any necec, s~xy procedures in the article on Pay, NATCA proposed to retain a Pay Admtrdstrafion article, to facilitate baxgai~g ~o restore ¢gisting pay rah~ when the n~w'agr¢ora~t ~xpirod. The parties did not agree on whethe~ or not to include a Pay Administration artiol~ in the.~nt~t', FAA submitted NATCA's propos~ a.¢licI¢ to Congr~gg, but did not submit anyfl~g for ~ ag~cy. S~:fion 7103(g)(12) of*he Statute ddin¢~ colJoctlv= bargaining as the '~'t'ormanc8 of the mutual obligation of ~ representative of an agency ~md *he exclusive r0prosenrative of employees in an appropriate unit in th~ agency to moot atceasonable times and to consult and baxgain in a good-faith ~ffort to roach agreermmt with r~pcot to the conditions of ¢mploymenl aff~fing such employees..." but that obligation "does not ¢ompd ~ther pa~ to agree to a proposal or to mak~ a concession."
I~ order to detormlne whothe.,r a pa~'ty h~s m~[ i~ ob~gafion to b~g~n in good f~ ~ Au~ ~nos ~o tota~W of~ ~g~ p~s ~nduct. ~.g, U.S, ~p'~. of~h~ A~r Headquarters, Air Force Loglati~ Co~an~ ~lght-Patt~aon Air Forc~ B~e, Ohio, 36 F~ 524, 531 (1990) (Wright=Patterson). F~¢r, w~o ~d~c¢ ofb~ ~ b~gMn~g mayb= fou~ ~ wi~&awal of a tentative or pm~o~ ~¢=moat, s~h a~on do.nat n~s~ly

000049

Case 1:07-cv-00272-ECH

Document 25-3

Filed 03/12/2008

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P,

establieh per ao an absvnce o£good faith. Dept. of T,~a~uryo Internal Revcnue Serv,, Memphi~ $¢rv. Ctr., 15 FLRA 829, 845 (1984). '

There is no FLRA precedent on regressive bargaining ~ pm of~o good ~th b~g~ng obliga~on. ~ ~o pfivmo s~tor, the t~ ro~sivo ~g is ~ to ~for m a p~ off~g , a p~o~l ~ when it is levelly r~ivo~ ~wing it ~r a l~s~=r proposfl. ~ ~ hm ~und ~at, in ~ o~~coS, ira p~ wi~ws ~ b~ng propos~ on w~ch ten~fiv~ a~om~nt ~ bc~ r~ch~ ~d, ~ t~ pine0, substitutes a reactive pmp~ ~o ~ondu~t ~s ~o eff~t of ~ped~g ¢oll~fiv¢-b~g in ~ a~pt to pr~t ~ a~m~t. $e¢, ~.g., Ar~ Smith andDoor Co.,28~ ~ 1~08 (1980), ~e~'s d~c~afion of whc~er ~ ~d~wfl of properly ~v~ p~pos~s ~mfi~t~ ~ &i~ b~ng i~ b~ed on the tolaHty efthv c~c~s. ~ood Con~al~eeat Hosp., 312 ~ 247, 252. (1993). Ai~ou~ ¢~enfly poa~ng on ex~tiom to th# Au&ofi~, ~ ~~vo ~w ~udgo recently appH~ pilate svotor p~cedvnt ~ a dcoision fin~g ~at a p~y ~ ~gag~ in ~v¢, bad f~ b~g~g. Am~r~an Fed~a~on of Go~me~ Employees, ~al $937, ~L-C~O, O~ 07-15, May 24, 2007.
Suffa¢,o bargainlng~ similarly, is a team of art in private s~olor labor r~latiom. It ref~s to nvgo~afion ~duct in w~oh ~ ~ploy~ b~g~ ~m a ~ ~sit~n on c~ct propo~s ~t wo~d so r~ct ~e ~on's fi~.~ ~v ~cl~ve ~en~fivv ~Uld ~t effectively ~r~ont its ~t if it ~oopted ~ propo~. ~e, .g,, X 1 Klnq ~e S~dwtch~, In¢,, 265 ~ 850 (19~), enfd. 732 F. 2d 8~, 116L~ 26~g (ll~ Cir. 1984), ~rt. deni~ 469 U.S. 1034 [~a~ a~faco b~g~g fo~d where pmpos~ wo~d s~p ~v u~on afro nbi~W ~prosoa~ i~ mcmb~ eff~w~ ~ ~ ~a~@t~ would h~vo leR ~e ~on ~& l~s &v ~ts ~f~d by ~ ce~flc~on]~ ~mpa~, ~i#h~old Chemiaa#, 288 ~ 69 (1988), r~id~g 277 ~ 539 (1985) (no s~aco b~g~ng whom ~mployer inked on a broad no s~e ¢la~, a n~w ~ov~vv olauso, ~d a broad m~ag~t d~ cla~v, but sorer oonoes~ons on &e no s~ rh~O ~d thv ~ag~t ~ elate, ~d &v a~ to soma ~tt~). ~o bad ~ conduot fo~ m dolg, ~hs Statute in ~3. Geological ~, Caribbean D#t.. Office, $an Yu~, P.~, 53 F~ 1005 (199~ ~bly hvolv~ As to the FAA's inclusion ofinoorro~t wzaiono oi~Arti~i~ 4 v.ud 63 in its submir~ioa to Congress, thor~ is nothing to show that ItAA octal in bad. faith by submitting the wrong language to Congror~. It appears that tiffs was an administrative error. The articles ware not in dispute, ~s .thoro was no question that thc partloa had agreed to th~ TAU langnago. The FA~ implemented what thg parties hall agree1 upon. It is an unfair labor praofico to insist to impaas~ in bargailfing over a~topio p'mmissive to the other party ,~, .g., Sl~ort ~4tr Traffic Controllers OrE. (ff~l~CO), 52 FLRA339 (1996). Contrary to NATCA, however, tharcia nothing h~ to s~ggost tliis ooeurr~l wlth r~sp~ct to Articles 17, 18, 33, 38 and 106. NATCA argues that its.agravm~nt on the waiver of ttm second prong of the "covered by" test rvndors the inclusion of speci~i~ language permissive to the ration. NATCA also argue~ that ~e inclusion of specific language that would mnd~ a topi~ %ov©rvd by the contract" and formless bargaining on that matter for tl~ lifo of the agrcvmont is psrmissiw to the Lmion.

000050

Case 1:07-cv-00272-ECH

Document 25-3

Filed 03/12/2008

Page 6 of 28

JUL-~G-~-007' ~0:40

FLRA - SFRO

A~ to the alleged r~grcssive bargaining, it has boon coaolud,d lh~t F~ did not ~aw ~om a~o~ ~on p~tom coning F~i~ ATC ~ols, COn~oBor ~ C~g~ or D~afion of ~,mcm. ~ r~g~ to ~ evince ~olo, ~o ov~cc ~ f~ls to ~w ~ ~o r~hod ~ a~mont on ~ p~io~, No t~mtivo a~ w~ i~i~M ~ req~r~ by the p~os' ~d~es. F~ ~d not ~v~ a fo~M fllog~on ofno~0gofiabili~ 0nce~n~ Ov~o ~clo ~d sub~odbo~ p~' ~al off~ ca ~, mi¢Io m Con~o~ ~ pm of~e ~p~se. ~o pmies had no't~vo a~e~ent ~nc~g Ov~o ~d F~ ~d not ~aw ~o~ ~ a~m~t ~d ~t a lo~er propose. ~ ~0 ~msm~, the f~ls to ~t~li~ t~t F~ w~.~om tentative a~e~m ~ac~g =y of~ ~n~t provi~om as NATCA alleges. ~ompare, Am~ and Air Force ~hang~ 8~., 52 FL~ 290 990 (~o~d ~ ~d~ p~' t~mfivo a~om on a p~ pay propo~ aa~ugh not off.five b~fore ~ o~ issues w~ ~esolv~). As regards the alleged bad fMth bargaining eoneoming NATCA's p~oposeA now eontr~t artiole~, FAA did not make counterproposals to the .Union's propo,als and little bargaining tltao wos ~ptmt disoll~ing them. Al~o, FAA chang~xiita poaitkm on wh~thev those provisions wet, out3ido the dutyto bargahh pro'missive to manag~memt, or wh~ther it simply did not wi~h to agree to thaso propo.~als. In one propos~t article, the FAA~.s own negotiator~ dLfferod about whether th~ proposals were nonn~gotiabl~ or andesirable 1o managemmat, The FAA's conduct with re~po~t to all of these propo:ed n~w. contra~ oxtiolo~ wa~, arguably~ p~qm~tory. In the context oftho contra~t nogotiation~ ao a whol~, there is no overall mridonce of bad faith with respect to ~h~se proposals. Th~ effort to rezmh agreem~.t applie~ to the totality ofth~ cimumatancos and not to ~tnglo or mode, st groupings of proposals. Here, FAA did not want to agree to anything that ~.ntailad a~lditional cost,, which th~sc.propo~als ~d, not ~'tabliah that YAA'.~ appro~h to the ontir~ baxgaini~, process was an atteanpt to avoid agreement. Therefore, the ag,ncy'~ condu~t with r~pt~t to thos= p~opo~ala, did not mount to bad faith bargaining. As to the failure to ~ubmit a proposal on Pay A~lministration, the evidence establi~ms that FAA proposod to i~elud¢ all pay administration matters in the Pay miele, instt~ad of in a s~parate article on Pay Administration. This is con~tst~t with the position the FAA had taken throughout negotiations and is not evide~cv of more than a desire to include all p~y matters in one article. This conduct does not amount to bad faith bargaining.

000051

Case 1:07-cv-00272-ECH

Document 25-3

Filed 03/12/2008

Page 7 of 28

SUL-26-~BO?

10:41

FLRA - SFRO

Further, tha ovid~m¢¢ dots not e~tablish that FAA bargained tix~n a fixed position on pay. FAA wanted to change the entire pay system to reduce costs audmaintain~l, that position throughout negotiations. The FAA.'s insistence on ohaugingto a difforem system reilc~t, hard burgaining. FAA was consistent-and determined to aohlove its bargaining goals mgauiing pay. Howcwr, the portico mot, bargained, made conc~ions and moved toward eaah othom' positions as negotiations progressed, In circumstances whore the parties' reached agrccmant on 100 contract articles, the FAA's tttsistsnoe on ¢hanglng the pay system and reducing costs do~ not amount to bargaining from a fixed position or surface bargatt~g. The documents NATCA moeiv~l unofficially do not establish that FAA bargained in bad faith. It is not unlawfui for a party to stramglze ovor upcoming negotiations, including id0atiBfing options if agreement is not reached. Th~ FAA's recognition ttmt there might b~ an impasse in bargaining if no agre¢ment was reactled is not sufficient it establish that the FAA'B OtIIiI~ goal in n¢gotiatiom was to reach an impasse, A~ m the contempt call notes, while an unidontifie, d person may have conveyed that there was to be ~o pay bargaining With NATCA, this w~ belied by the facts. The notes leflect nothing more than what wa~ said inn 0a!l, not what happened in the ovm'aR collrso of negotiations. Thei'o is no ¢vid~mce of bad faith bargaining with r~spect to pay, based on the.no documcms. NATCA had reserved its fight to c0ndllet a ratification vote among its members prio, to implementation of a final agrem0nt. NATCA dldnot submit the contract to the membarship because it ~id not agree that thor, was a final agreement. If tim members had voted against an a~roommt and FAA had r~fusedto onto, into further negotiations, this might pro~do a basis for finding an unlawful failure orro~M to l~argairt, 8ee~ e.g., Dept. of the dteForce, UrifflsaAir FOrae Bo$~ 2~ome, NY, 2~ F~ 5790987). In eircumstan¢~ where NATCA did not hold ratifieatio~t vote, the evidence does not establish that. FAA.'s conduct d~prived NATCA of an opportu~ty to ex~reise this right. A~ to the question of whether the. overall pattern of FAA'~ conduct constituted.bad faith bargaining, in the totality ofth~ ciroumstanoea, the e~,idoncc doo~ not support f'mding ~uch a vtolatioxx, The FAA engag¢d in haiti bargaining. It insistM to impasse on m~datory topics, inoltlding pay bargaining. It did not, as ttllogod here, insist to impasse'on pe~axtis~iv¢ topics or engage in re~rossive harg~'ming by withdrawing fr6m what it had agreM in order to prevo~t overall ag~ot~ment. It did not e~gago in surface bargaining, by ir~istin~ on such ~.tringent t¢rms that th¢ union would lose all rights through the a~amauL FAA did not refuse to bargain on NATCA's pxuposcd now artiolo~, although FAA did not engage in sigaificaut b~gaining over matte.~ or submit counter offers. ~u~tead, FAA simply r~ased to agree. The evktsnc~ stm~s that tl~ FA.A met mxl bargained, roads canteens anal reach~xi agreements, and participated in Weeks of mediation. When F1vLCS r~leased the parties, I~AA made no ~cret that it wouk! exercise what it ~aw to be its impasto right to submit the matter to Congress. When no agr¢ement was reached by Apri~ ~, 2005, it.px'ocecdcd to do so. Tho overall pattern of this conduct doo-~ not e.stabli~h that the FAA a~ted in bad faith in the negotiation ofth~ agrcccne.~ut. FAA wished to reduce costs and to move.the NATCA maim to the prevailing FA~ pay sy~t~. FAA trover chaugext its position on thlk i~sue, but ~uek hard bargaining insistenc~ is not p~r ~s bad faith, Here~ the pa.~ios t~tativoly agreed to 100 contract artielc~. The partie~ made

000052 '

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~xtensive but ultimately unsuccessful ciTor~s effor~ to r~olvo ba~ioally intractable disputes over the remainin~ mattrrs. When thcs~ efforts fail~l, FAA ~nvoksd what it pensive4 as the appropriate impasse r~solution procedure. In tho~e ch'~um~tance~, the evidonse fails to demonstrate thRt FAA a~ted in bad faith. Based on the evidence pr~rmtr.zl, in th~ to~i~ of~o ~~s, '~= F~'s conduct wi~ r~mt m i~ con~= nogo~ons ~d not ~o~t to bM ~th in ~go~a~om, ~ght-Pa#=rson. ~=r, In ~r ~sencv of~d~c~ of bad f~ or t~t F~ f~l~ to b~ ~ all~ ~ p~es warn at i~so on April ~, 2Q~ m ~¢ir~ months ofb~g~ ~d m~on h~ .not resolwd the entire contact. The FAA did not violate ~e S~tum by ~gag~g in re~siv~ or s~f~ b~, by i~is~g to impasse ~ p~iv~ ~pi~, or by ~fing ~ bad ~ a~ zvid~me pr~ont~ tv ostab~ ~ a ~olafion ofs~f!on 7116(a)(8) of~o Smut0 ~ ~ Accordingly, the charge is dismissed. An appeal may be filed by mail or by baud d01ivory with [he Offioe of the (}~"~l Couns~. Your appeal should include the Case Numbar (WA.CA-06-0366) and ha addressed as follows: Fedora1 L~oE Relations Authority Office ofth~ G~n~r~l'Co~nsol 1400 K Street NW, ~$cond Flob~ Attraiiom Appeals Wasl~L~gton DC 20424-0001 Which~¢r method you choose, please note that the last day for filin~ an appeal of the dismissal is August 27~ 2007. This re~runs thaf aa appeal tlmt is maiI~i must be postrnazk~ or an appoal must be hand d~.l~vercd, no lat~ than August27, 2007, Please sead a copy of your appeal to th~ Regional Dir~tor. If you n~d mo~0 tima to proparo your ~pa~, you may ~ for ~ ~teasion of~0. M~I or h~d dc~vcr yo~ ~u~t for ~ ~xt~on of~ td ~e Offioo of~ O~n~ Consul ~ the ad~ess li~d ~ove. B~a~o req~s~ for ~ ~t~sioa vf~o must be r~ived m J~t five before ~¢ ~ ~z app¢~ is due, ~ rcque~ for ~'~t~s~n afro ~ ~s ~ must bs reeeiv~ at ~o ~ov~ ~o~ no lair ~ Au~st 22, 2D07, Th~ procedures, time limits a~d grounds for ~ an appeal'at, co~taitmd in Volume 5 oftho Code of Federal Kegulatio~ at section 2423.11(c)-(g). 5 C.F.R. § 2423.11(c)~(g). Tit, regulations may be found at any FLRA R~g!onal Ofl~c¢, publio few library, some large general purpose libraries, Fe, doral Pta'sonnel Officm and tho' Authority's Home Page int~rnet site-wwW.FL]RA.gOv.

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have also en~los~ a document which.summarizes freque, utly-~ked quesdous and answem regarding tho O~c,e of the G~n~ral Counsul'~ ~t'~ir labor

I0

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UNITED STATES OF AMERICA I~EDHRAL LABOR RELATIONS AUTHORITY SAN FRANCISCO tLEGION 901 MuJ¢~ Slree~, Suite 220 S~ 'FrauoL~o, C~Lfbm~a 9~103-1791 (~I~ ~ F~:(415)~5017

July 25, 2007
l~ugc'a~ Fr~edraaa, Policy Coum¢l National Air Tragic Controllers Association 1325 Massachusetts Avcnuv, NW Wv~hlngton. De 20005 F~l~ral Aviation Administration Washington, D.C, Caso No. WA-CA-06-0~63 Dear Mr, Freedman: The unfsir labor practice ckarge in this case was filed with ~: Washington Regional Office on July I 1, 2006 and was transfe~ed to tho Saa Franci~co R~gional Office on Septcrabcr 7, 2006. After ~vesdgatien, consideration of the evidauc~ aad aplgication of the law to flze fac~s, i~o.~zme .of a complalat is not warranted. Th~ charge edleges that sine, on or about April 7, 2006, the F~leral Aviation Administ~tioa (FA~) r~cd to bargain under the auspi~~ of the Federal Scrvic~ Impeesos Pmael (FSIP) when ~ impasae in contract negotiations with the Nationefl Air Trmffio Controllers Assodation 0qATCA), This ¢onduvt is alleged to violate section 7116(a)(l) and (5) of the Federal Service Labor.Managemvnt Relation~ Statute (Statute). The FLI~ has jurisdiction over the matt~s raised in this timdy filed charge,

The relovent s~tlorm vaz ~ot out in full In Attaobment A.

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JUL-26-2BB? 10:32

FL~ - $FRO

t~e eff~t until 60 day~ h~v~ ehps~ aRer th~ Administrator has transmitted ~ propos~ oh~n~e to Control.

On April 5, 2006, pursuant to 49~U.8.C. §§ 40122(a)(1) and (2), PAA submitted it~ position on impass~ to Congress as well as an explanation of NATCA's opposition to its position. On April 7, 2006, pmsuant to 5 U.S.C. § 7119, NATCA sought th¢~ assistance of~FSIP. asserted that FSIP laokod JlLdsdictiori in, rheas ma/to~s, as Congrms had providexl FAA with a unique impas.¢ rea01ution p~ce.du~e set forth in § 40122(a)(1) and (2), On July 15, 2006, F$IP d~linod to assort jurisdiction over the parties' impasse, f'mding that under § 40122(a) it unoloar whether or not FS~' had jurisdiction to resolve tlae parties' impasse dispute. Consistent with § 40122(a)(2), sixty daya aRer submitting the matter to Congress, or~ ~un~ 5, 2006, FAA notified NATCA thatits final ¢on~ot proposal was in ffcct. NATCA th~n fllgd this charge" allsging that ~AA had £ail~d to bargain under th0 auspiocs ell;SiP cono#ming th~ bargaining impasss.
Fairly construed, § 40122(a)(1) and (2) r~Iae.od ~g provisions tm~r the Statu~o for resolution of impasses, Whil~ that'sootion plovid,s for bargaining under Chapter'71 of Title 5, it ~pHoitly provid#s for the resolution ofbargalrdag impassgg trader the scheme sot forth in that s~otion. Hare, FAA ,ubmitte.d the disput~ to Congtms after impasse was roaoh¢d in April 2006. When the 60 day period e.xpired without Congressiona! action, FAA was fr¢~ to implomant th, proposal that w~ submitted to Congress.

NATCA asserts that th~ resolution ofbargakaing impasses set forth in § 40122(a)(2) appli,s only to bargaining disputes over "compensation and b~ofltS;" ta this rega, d, NATCA roll~s on 49 U.S,¢. §1060) whtoh provides that "ki ftxing comp,nsat.lon and b,nofits of officers and ~mployceg th~ Administrator shal| not vngago !n ~tr~y type of baxgaLnLng, exgept.to the ~tEnt provided for in § 40122(a), nor shall th¢ Administrator be hound by any requirement to e~tablis]~ such oompenstztion and bcngfits at particular levels." NATCA contends that. only bargaining owr those matters is covered by § 40122(a)(2). NATCA further a~erts th.al neither s~tion pce~ludes impas.q~ t~oluilnn through FStP;prior to any submission to Congress. Contrary to NATCA's olaim, the procedur~ set forth ilx § 40122(aX2) is no~ limited to impasses involv .l~g "eompo~ation and benefits." In tlds regard, while § 40122(a)(1) provides that .m~gotiations must take place, the Sm'no subsorlon (a) providea for a ~eeific and oloar prooodum
~ NATCA's allegation that the partit~ ware notat impasse on April 5, 2006 Is addressed tn th¢ dism~al l~ttcr issued today in Cas~ ~o. WA-CA-0~-0366.

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for the resolution oJHmpas~es. Further thee is no differenfi~on between impasses owr ~ompons~don and oth~t bargaining topics.. A~¢ozdingly, this pro~edur~ must applyto tl~ entiro dispute at Impasse, There~r~, FAA did not violalc s~tion 7116(a)(I) and (5) of the Stemto by submitting the contract bargaining ~mp~sso to Congress. Based on the foregoing, this charg~ is dis~ss~L
An appe~l nmy be fll~i by mail or by 1~d delivery with the Offi~ oftlm Oo~sral Cotmsel. Your ~ppe~ should include the Cas~ Number OVA-CA-06-0563) ~ud be mldrossed as follows: F~eml Labor Rol~tions Authority Office oftho General Courted 1400 K S~t brN, Sa~ond Floor Attention: Appeals Washington DC 20~24-0001

Whiohever method you choose, please not~ that lho last day for filing an appeal of the dismissal is August 27~ 2007. This reruns that ~n appeal that is mailed must by postm~kod, or an appeal must be hand delivered, no la~cr than August 27, 200"/. Please se~d a oopy of your appeal to the Regional Director. ~ dc~vvr yo~ request for ~ ox~ion of~ to ~ O~c~ of~o O~ml Co~s~l at ~ ad~s ' l~st~ above. Be~e r~u~ for ~ ~ml~ of~ mustbo received at l~t five ~ys befor~ ~o date ~0 a~l is due, ~y ~t f~ ~ ~on oft~e in ~ o~o m~ b~ received at ~e ~ove a~ ~ l~r ~ August 22, 2007, ~e preempt, ~o ~its ~d ~ f~ filing ~ appeal ~e ~n~ Code of F~I Re~afions at s~on 2423.1 l(o)-(~, 5 C.F,R, ro~ons m~ be fo~d ~ ~y ~L~ ~o~10~c~, pub~o hw lib,. some l~ge gen~al p~os¢ ~b~, F~or~ P~so~d O~oes ~ ~o A~fi~'s Home Page ~trm~t si~-I have ~lao e.~loaed a document which summariz~ ~r~ue~tly.aslr~d questions and answers rrgsrding the O~e of the Ge~al Counsel's tm~e~ir labor practice appeals pro .r.~s. I.f you need mor¢ tlmo to p~paro your appeal, you r~y ask for m ¢xt~ion of ~mo. ~I or h~d

Sincerdy,

¯ ~r~d M. C~I~ Regional D[ro~or Enolosttr~: Questions and Answers About Appeals

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P.05~11

Elizaboth/, Hood, Esq. Fodoral Aviation Administ~rattoa LabOr and Persormd Division, AGC~30
Washington, DC 20591

Collz~ Daffy Kilo, 1400 K S~t,'~. ~ Floor W~hington, D,C. 20~O00t

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A~rA~r A In October 1996, Congress passed the Air Tmfltio Management System Pufformanc* Improvement Act of 1996, Title II. us pal"t oft he F~brdl Aviation Reauthorization Act of 1996. Pub. L. No. 104-264, 110 Star. 3213 (Oct, 9, 1996). Section 253, codified as 49 U.S.C. ~ 40122)(a), provide:

(I) Consultation and nogotlation.--lu developing and making calanges to the personnel manage.:memt system initially implemented by the Administrator of the Federal Aviation Administmtlcm on April I, 1996, the AdmiRistrator shall negotiate with th¢ ex~lus'iv¢ bargaining rvpresentat~ves of employees of the Administration certified uadar Section 7111 of trio 5 and ~6nsult with other employees of the Administration. (2) Mediation.~Ifthe Administrator dots not reach an agmrme, nt uudcr paragraph (1) with tho exclusive bargaining representatives, the servio=s of

Fedora1 Mmfiation and Con,ilia~ion Sorvie, o shall be used to attempt to reade such a~oment. If tho sorvi0es of the FederalMediation and Coimiliation Sorvic~ do not l~ad *,o ma agreemect, th~ Administrator's proposed changes to fits personnel management system shall not take eff~t untl160 days have ~lapsed aRor Administrator has transmitbd the proposed change, along with the objeetiom of

the oxelusivo bargRirfi~ representatives to the ohaag¢, aml the ~oasom for such
whloh Congross has aOJolm~e,d sine die, 49 U,$.¢. § 40122(a).

objections, to Congress. The 60-d~y period shall not include any period during

Section 225, ~odified as 49 U.S.C. §I06(I), provide~ that, in fixing compensation and b~acfits: .Exert as provided in subseotlons (a) mid (g) of s~tion 40122 [49 U.S.C. §§40122], the Administrator is authorized, in th9 pvrfommnc~ ofth~ functions ofth~ Adrainistrator, ~o appoint, transfer, and fix ~o oompomatlon of such o~cers and omploye~s, includes a~xom~ys, as may be necessary to carry out the functions of rite Administrator and the Administration..In fixing ~ompensation and benefits of offic~rs and eanpJoye~, the Administrator shall not ¢ngago in any type of bargaining, ~xocpt to the e)lt~t provided for in s~otion 40122(0 [49 U,S.C. § 40122(a)], nor shall the Administrator be bound by any rmtuir~nent to cstablish such compensation or ben~fim I~t particular levoIs.

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FLRR- SFRO

P.07/11

July 25, 2007

Eugene Freedman, Polioy Counsel National Air TraEio Controllers Association 1325 Massachusetts Avenue, NW Wash~gtOn, DC 20005

FeStal Aviation Administration Washington, D.C. " C~e No, WA-CA-06-06~8
Dew Mr. Freedmtm:

The Unf~ labor practice o1"mxgo in th|s case wa~ filed wiih the Waskingtoa Regional Oi~ce on September 6, 2006 and was ~asfvrred to the Sad Fraaoisoo Roglonal Office on September 12, 2006: Aftvr ivvcstlgatioa, ¢onddoration of the evidence ~d application ofth¢ law to the facts, issuance of a complaint is not warranted. Th~ ciaa~go alleges that on or about September 3, 2006, the F~decal Aviation A~mLuistratlon (FAA) urdlat~rally implvm~nted it~ final tontine1 proposal despite the fact that bargaining wit~ t~e National Air Traffic Controlle.rs Association, AFL-CIO (NATCA) had not beva completed. Thi~ ~onduot is all~gexl ~o violam se~tion 7116(~)(t)(5) and (8) of~e Fedecal ~vrvlce LaborManagement Relations Statute (~amle),' The 1;LRA has ~urisd~ctioa ovvr the matters rai~od in this timvly iiled charge. h~ 1996, Coagr~ss passed loghlation whi0h mlthoriz~t FAA to 0hange its per~onavl add proo~roraeat uystem.~, Pub L. No. 104-264 (Octobvr 9, 1996)'z Wh~il¢ ulti. ,m~.toly the legislation provided ~at the FAA persoano! management system vreat~ m~d~ that logi~latioa would be " subject R~ Chapter 71 of Title 5 and that uegotiatlons over the creation of clmages to the system shall tak~ place, the legislation a.lso provided a unique mechanism for the resolution of
Along with oL~r allogafion~ that FAJk ~ngagM.in bad faith barga~hlg, the allegation of this ohatg~ 1hat FAA donivd NATCA an oppoR~lnlty tO vonduct a ratification vo~e is addvoso~d ia tho dts~ntssal issued :eddy it* Ca~e No. WA*CA.-06-0366.

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@UL-~-21~? I@:3~

FLR~ - SFRD

In this ease, the investigation revealed that for r~aely 10 months in 2005 and 2006;'FAA and NATCA wor~ in negotiations over a slloocssor to the 200~ agre.~qent in thdr three nationwide air traffi~ bargaining units. During tim bargaining, the partita agreed on many issues but agrevm~nt was not reached on all matters and thO groundxules specified that any agr~m~t was

lentativ¢ until aftnM agrsem~t was consummated. The parties pa.qidpatod in six weeks of mediation conduaed by FMCS. On March 31, 2006, the FMCS Commlssioncr released
pro'ties frommodiation. On April 5, 2006, FAA declared that the poxties were at impasse?
On April 5, 2006, pursuant to 49 U.S,C. §§ 40122(a)(I) and (2)° FA.A. submitted its position on impasse to Congress as well ~s an cxplanatlon oI'NATC, A's op/~ositlon to it~ position, On April 7, 2006, pursuant to 5 U.S.C, § 7119, NATCA sought the assistan¢~ of the Fod0ral Servioo Impasses Panel (FSIP). FAA asserted that FSIP laek~ jurisdlotion in these matt~'s, as Congress had prodded FAA with a unique Impasso resolution pro~eduz, s¢t forth in § 40122(a)(1) and (2). On luly 1 $, 2006, YSIP dsolined to assort jurisdiotion over the p~ios' imlmsSo, finding that under § 40122(a) it was unclear whcthe, r or not FSIP had jurisdiction to rosolw the parti~"

im.pa~se dispute.
Consistent with § 40122~a)(2), sixty days aRcr submitting the realtor to Congress, on Juno 2006, FAA notifi~ NATCA that it~ Rnal ¢ontraot.proposal w~ in offeror. On August 21, 2006, FAA notified NATCA that its final proposal would be implmcnted September 3,2006. FAA managers then bvgan notifying local NATCA repmsmata~ives that aRor Sopt~mbor :3, 2006,

thoy no longer would bo bound by existing local agreements sadder past praotioos whbh had
developed under the 200~ agr¢ome.nt. In mine tnstarmes,'looal manag~rs tormlnat~d all existing looal past practice. In other insianofi.s, managers'retained some existing local pest praotic~s and terminated others. When FAA implembnt¢d its final proposal, NATCA ~ibd this oharge. Fairly construed, §§ 40122(a)(1) and (2) replaood th~ provisiom under the Statute for resolution of impassos. While that stmtion provides for bargaining under Chapter 71 of Title 5, it explicitly providvs for tb.e rvsolution ofbargaini~ impasses under the scheme set forth in that section. Here, FAA submitted the dispute to Congress after impasse was r~ached in April 2006. W1x~n th~ 60 day p~flod expired without Congressional a~tion, FAA was ~e~ to impbm~nt the final contrtmt proposal that was submitted to Congress. NATCA asserts that ths resolution of bargaining ".wapasses sa forth in § 40122(t0(2) applies only to bargaining disputes over "eompel~. ation mad benefits." In this zegard, NATCA relies on sestlon 1060) which provides that "in fixing ¢ompensatlon and bonditaof officers and a NATCA's allegations that the parties wore not st irnlrasse on Apr{l 5, 2006 and that th¢ FAA violated Stotuto hy failing to resolve the b~gaining disptlte~ thro~pjt YSlP are addremafl in th~ dismissal letters issued toclay in C~c Nee, WA-CA-06~0~66 and WA-CA-06.0563,

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employees, the Administrator shall not ongag~ in al~ type o~bargahaing, exempt to the ¢xient providedfor in § 40|22(a), nor shall the Administrator be hotrod by at~y requirement to 0stablish such oompensation and benefits at particular levels." NATCA contends that only b~gaitting owr those matters is severed by § 40122(a){2). NATCA further asserts that nei~or scotion pre~lud~ resolution of oompemsation impasses through FSIP, prior to any suhmi~ion to Congress. Contra~ to NATCA's claim, the procedure sot forth ~ ~ 40122(a)(2) is not ~it~ to ~p~ses invol~ug "~mpemafion ~d b~eflts." h.~ t~ w~ ~ 40122(a)(1) provides ~ for.~ tcsotu~oa of impasse, F~ ~ is no ~ffer~fiafi0n b,~m imp~s~ over compendia md oth~ b~g~ topios. ~or~ly, ~ ~o~m, must apply to th~ =fire dispute g ~p~So,
Th~rofoce~ hsving followed the § 40122(a) proosdure for rrsolvins ~e contact b~ ~p=se, F~ did ~t vlolate svv~o~ 71 l~(a)(1) ~ (~) of~: Stamto by pro~e~g fo~d ~d i~Imen~ its ~M pmpos~ os S~t~b~ 3, 2006. ~. Dept. of Labor, W~h., D.C, 60 F~ 6S (20~) (tenet te~s ~l~t~ ~ oppo~ for ~p~se rs~lufion co~fi~ete Mn~ng a~eemonts). F~hor, no abortion was ~sM or o~denco subdued to suppo~ ~ng a viola~on offish 7116(a}(8) of~o 8mmm.

Azcordlngly, the charg, is dismissed.
An .appeal may b¢ filed by mail or byhand d~livery wifh the Office of the General Counsel, Your appeal should ineludo th~ Case lqumbcr (WA.CA-06-0648) and b~ addr~ss~ as follows: Fotlmal Labor Relations Authority Office otrttto Gemral Coxmsol 1400 K Street NW, Ssoond Floor Attcnti0n: Appeals Washington DC 204~4-0001 Whichever method you ohoose, pleas0 note that the las~ day for filing an app.eal ofthr dismissal is. August 27, 2007. This means that an appeal that is mailed must be postmarked, or an appeal must bo hand delivered, no tater than August 27, 200% Please send a copy of~our appeal to tlx~ Regional Director. If you need more time t0 prepare your appe.al, you may ask for an ¢~temsion.of time. Mail or hand lkstcd above. B~aus¢ ~¢qu~ts for an extension oftim~ must be i'eeeived at least fivv days b~fore the date th~ appeal is due, any rvquos.t for at~ extension of rims in this case must bo received at the above a£1dress no later them August 22, 2007.

d,liver your request for a~ extension of time to th~ Ol~oo of the Goiioral Cbunsel at the address

.The procedures, time limits and grounds for illing an appeal ar~ oontaincd in Volmno ~ ofth~
Cod~ of~edorai Regulations at sootion 2423.1 t(c)-(g0. 5 C.F.1L § 2423.1!(o)-(g). 3

regulation0 may b, found at any FLRA R~giomd Offioe., public l~w Iibrary, some larg, gemcral

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v,~w.FLRA.gov. I haw slso ~los~l a do0uraont whi~ stmm'~zes r-r~lu~ntly.~ked questions and ~mawers r~garding ~e.Offic~ ofth~ GmCral Counsel's unfair labor laracti~ @poals process.

Ocaald M: Col~ Regional Dix~tor En~losur~s: Questions and Arawers About Appeals
Elizabeth J. Head, Esq, Offic¢ of the Chief Counsd Fedca'al Aviaiioa Adm~tration Labor and ]?er~lormtfl Di'~ision, AGC-30 600 Ind~andenca Avent~, SW, lst Floor Washington, DC 20591

¢oll=en Daffy Ka'l¢o, Geaorid Counsel
Ofl:i~e of the ~3oneral Coutlsol . ~Fed~ral Labor Rolatlons Au~o~ty

la00 K Strut, NW, 2'~ Floor

Washington, D-C. 20424~0001

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3UL-26-2007 10:33

FLRA - SFRO

ATTACI~RT A In October 1996, Congrese pass~ ihe Air Traffic Management Syst0m Petfotraanco Improvem~n~ A~t of 1996, Title H, ~ part of the F~d~ml Aviation Rsauthorization Act of 1996. Pub, L. No. |04-264, 110 StY. 3213 (O~t. 9, 1996), S~tion 253, ¢od~cd as 49 U,S.C. § 40!22Xa), provides:

~genetal.---(1) Consultation mad negotiation.---In developing and making changes to tim peraomael management system initially implemented by the Administrator of the Federal Aviation Administratiott on April 1, 1996, tim Admirdatmtor shall negotiate with the exel~ive bargaining ropre~ataflves of employe~s of the Administration certified ~lllder Se~tlon 7111 offitl~ 5 ~ad consult with other employee~ of the Administration. (2) Modlation.~/£ the Administrator does not reach en agreement tmd~r paragraph (l) with the exclusive bargaining repre.senlatives, the services of the F~d~al Modi~lon and Conciliation Service shall bo used to attempt to r~aeh such agreement. If the services of the F~ml Mediation and Conciliation Service do not lead to ~ agreement, the Admirdstrator's proposed ehange~ to the personnd management system shall not take effect tmti160 dnys. haw elapsed after the Administrator has transmitted th~ propo~xl vht~nge, ~long with the. objections of the exelusiw bargailXiIlg r~prosentatiws to the change, and tim roa~om for such objections, to ¢ongr~s, The 60-day p~riod ~hoal not ~olado oaty period during which Congress has adjourned edne die, 49 U,S,C. § 40122(a). Section 225, codified as 49 U.S.C, § 106(!), provido~ that, in fixing ompensation and
Except a~ provid~-d in subs~tions (a) and (g) of s~fion 40122 [49 U.S.C. §§40122], the A~strator ~ au~o~ in ~e perfum of ~ ~?flom of~ A~nis~ator, to ~poin~ ~f~, ~d ~ ~e oomp~sa~n of such offices ~d ~ployo~, ~olud~g ~m~, ~ ~y b~ n~ss~ to c~ out ~ ~fio~ of~o A~s~r ~d the Admi~ator s~ not e~ge in ~y ~o ofb~g~ ~c~pt to ~o extent for M section 40122(a) [49 U.S,C. ~ 40122(a)], ~r sha~ the ~Ms~ator be ~~d by ~y roq~remont to ~t@ltsh such ¢omp~on.or b~ofi~.~t p~ul~ l~vols.

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UNITED.STATES OF AMERICA BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY OFFICE OF TIlE GENERAL COUNSEL

DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. Charged Party

and
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION~ AFL-CIO Chitrging Party

Case No. WA-CA-06-0366

Order De,lying Appeal The Rules and Regulations (Regulations) of the Federal Labor Relations Attthority (FLRA) provide that a "Charging Party magi obtain review of the Region.al Director's decision not to issue a complaint by filing an appeal with the General Counsel ~,ithin 25 days after service of the Regional Director's decision." 5 C.F,R, § 2423,11 (c). The decision o.f the Regional Director not to issue a complaint was issued oxt July 25, 200 ,, ~d was.served on the parties by mail. Accordingly, an apppal must be filed b~ August 27, 2007. (An additional five days is added to the time period if the decision is served by marl. See 5 C.F.R. § 2429.22). The appeal was filed on August 27, 2007; therefore, it is timely filed and is prbpefly beforethe Gen,eral Coutise! for considrration. .... The Regulations at 5 C.F,R, § 24'23.1 l(e) provide the following grounds upon which the General Counsel may grant an appeal of a Regional Director's decision to dismiss an unfair labor practice charge: (1) the deeisi9 .n did not consider a material fact that would have resulted ha issuance of complaint; (2) the decision is based on a finding of a material fact that is clearly erroneous; (3) the decision is based on an incorrect statement of the applicable rule of law; (4) there is no Authorify p(eeedent, on the legal issue hi the case; or (5) the manner in which the Region ~onduet~d the investi~a~ion ha~ resulted in prejudig.ial error. Id. and 5 C.F.R, § 2423.1 l(f).
.',.' : ' ~ ..,

On appeal, the ~aa.rging P~rt~ ii~lrged, a.~. ong~'ther thi.ng'~, tl~a~ th~:'l~gibna~ Dir~¢tor's decision is based on a finding ,era material .fact tliiit is clearly erroneous, In this-regard, fiie Charging Party contended that Regional Director erred in concluding that the evid~rid~ w~s insufficien~ to ~stabfish a violation of 5 U,S,C, § 7116(a)(1) md ~), ha particular, the .Charging Party submitted that the Regiona! Director erred in failing to find that the Charged Party engaged in regressive bargaining tactics, a subject on which there is no FLRA precedent, and.that the totality of circumstances established bad faith bargaining, In addition~ the Charging Pafty submitted that.

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the Regional Director erred in failing to find that the Charged Party bargaiaaed to impasse over permissive subjects of bargaining. Tl~is appeal has been carefully considered. The Regional Director's rationale for dismissing the charges is supported by the evidence of record. The appeal has failed toestablish any ground for either reversing the Regional Director's decision or remanding the ease for further investigation in accordance with 5 C,F.R. § 2423.1 l(e), The dismissal letter issued by the Regional Director constitutes the written statement of the reasons for not issuing a complaint,as required by 5 U.S.C. § 7118(a)(1)~
ORDERED: For the foregoing reasons, the appeal is hereby DENIED."

Date Issued: Colleen Duffy Kiko General Counsel

* Federal courts lack jurisdiction to review a decision by the General Counsel of the FLRA denying an appeal of a decision not to issue a ULP complaint. See, e.g., Patent Office Prof'lAss'n v. FLRA, 128 F.3d 751,752 (D.C. Cir. 1998),

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UNITED STATES OF AMERICA BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY OFFICE OF THE GENERAL COUNSEL

DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. Charged Party and NATIONAL AIR TRAFFIC cONTROLLERS ASSOCIATION, AFL-CIO Charging Party
CERTIFICATE OF SERVICE

Case No. WA-CA-06-0366

I hereby certify that on ~anuary 29, 2008, I mailed the foregoing ORDER upon the interested parties in this action by placing a copy thereof, postage prepaid, in the U.S. Post Office mailbox at Washington, D.C., addressed as follows: CERTIFIED MAIL - RETLrRN RECEIPT REQUESTEDCERTIFIED NOS. Eugene R, Freedman, Esquire De up__p_~ General Counsel National Air Traffic Controllers Association, AFL-CIO 1325 Massachusetts Avenue, N.W. Washington, D.C. 20005 Elizabeth J. Head, Esquire Office of the Chief Counsel Federal Aviation Adminislxati~n Labor & Personnel Division, AGC-30 600 Independence Avenue, S.W., 1st Flbor Washington, D.C. 20591
BY FAX Gerald M. Cole Regional Director, San Francisco

Cert No. 7006 2760 0005 6476 6239

Cert No, 7006 2760 0005 6476 6246

Debra Watlingto~ ~ Mataagement Analyst

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UNITED STATES OF AMERICA BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY OFFICE OF THE GENERAL COUNSEL ~

DEPARTMENT OF TRANSPORTATION FEDERAL 'AVIATION ADMINISTRATION WASHINGTON, D.C. Charged Party

and
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION, AFL-CIO Charging Party

Case No. WA-CA206-0563

Order Denying Appeal The Rules and Regulations (Regulations) of the Federal Labo~ Relations Authority (FLRA) provide that a "Charging Party may obtain review of the RegionaI Director's decision not to issue a.eomplaint by filing an appeal wiih the General Counsel within 25 days after service of the Region.at Director's decision, J' 5 C.F.R. § 2423.1.1(e). was ~erved on the parties by mail, Accord~.ngly, an appeal mr!st be filed by August 27., 2007. (An additional .five days is added to the time perigd if the decision is se~ed by mail. See 5 C.F.R. § 2429.22). The appeal w~s filed on August 27, 2007; .therefoie,it is limely filed mad'is properly before the General Counsel for consideration. ¯ The Regulations at 5 C,F.R. § 2423.11(e) provide the fol]owin.g grounds upon which the General Counsel may grant an appeal of a Regional Director's dee.ision to dismiss an unfair labor praetice ' charge: (1) the decision did not consider a material fact that would have resulted Ln issuance of complaint; (2) the decision is based on a finding of a material fact that is clearly e.rr6neous; (3) the decision is based on an incorrect statement of the applicable ride of law; (4) there is no Authorityprecedent on the legal, is,sue in the e, ase; o,r (5) the manner in,which the Region conducted the.investigation has resulted in prejudicial ~rror. ld. mad 5 C.F.R. § 2423.1 l(f). On appeal, the Cha~ging Party alleged, among othN things, tha.t t~,e P~.egional I)i .re.c.tor's decision is.,based on a finding, of a material, fact that is~elea~lyd~neo. .~..: i.Jn this. :_r.,eg.ard~ t,h.e,Charging Party contende:d, that Regional.Director erred in concludi.gg, that the eyid, enee:w..,a.s..!fisufficient to establish a.violation .of 5 U.S.C. § 7116(a)(l) and. (5), In,particu!ar, the..Charging P.arty submitted that the Regional Director erred in failing to find that the Charged Party ,~iolated the S~tute:wh.ea it refused to bargain under the auspices of the Federal Service Impasses Panel when at impasse iq., .co.ntract negotiations with the Charging Party..

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This appeal has been carefully considered. The Regional Direc.tor's rationale for dismissing the charges is supported by the evidence of record, The appeal has failed to establish any ground for either reversing the Regional Director's decision or remanding the case for fi:~rther invesiigatJon in accordance with 5 C.F.R. § 2423.1 l(e)..The dismissal letter issucd by the RegionaI Director constitutes the written statement of the reasons for not issuing a complahlt as required by 5 U.S,C. § 7118(a)(1). ORDERED: For the foregoing reasons, the appeal is hereby DENIED.*

Issue~: I"
Colleen Duffy Kiko General Counsel

' Federal courts Iack jurisdiction to review a decisioh by the General Counsel of the FLRA denying an nppeal of a decision not to issue a ULP complaint. See, e.g., Patent Office Prof'lAss'n v. FLRA, 128 F.3d 751, 75~ (D.C: Cir. 1998).

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UNITED STATES OF AMERICA BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY OFFICE OF THE .GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. Charged Party¯ and NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION, AFL-CIO Ch arging Party CERTIFICATE OF SERVICE

Case No. WA-CA-06-0563

I hereby certify that on January 29, 2008, I mailed the foregoing O1LDER upon the interested parties in this action by placing a copy thereof, postage prepaid, in the U.S. Post Office mailbox at Washington, D.C., addressed as follows:
CERTIF~D MAIL -RETURN RECEIPT REQUESTED CERTIFIED NOS.

Eugene R. F~eedman, Esquire ¯ Deputy General Counsel Association, AFL-CIO. 1325 Massachusetts Avenue, N.W..' Washington, D.C. 20005 Elizabeth L Head, Esquire Office of the Chief Counsel Federal Aviation Administration Labor & Personnel Division, AGC-30 . 600 Independence Avenue, S.W., ])t Floor Washington~ D.C. 20591 BY FAX Gerald M. Cole Regional Director, San Francisco Debra Watlington Management Analyst I

Cert No. 7006 2760 0005 6476 5812

Cert No. 7006 2760 0005.6476 5829

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UNITED STATES OF AMERICA BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY OFFICE OF THE GENERAL COUNSEL

DEPARTMENT oF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C, Charged Party and NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION, AFL-CIO Charging Party

Order Denying Appeal The Rules artd Regaflations (Regulations) of the Federal Labor Relations Authority (FLRA.) provide that a "Charging Party may obtain review of the Regional Director's decision not to issue a complaint by filing a~. appeal with the General Counsel within 25 days aftea-.service.o.f the Regional Director's decision," 5 C.F,R. § 2423,11(c). T-h~n-of--the-~.e~ion~einr_no!Aa.i~ue a complaint was issued on July 25, 2007, and was served on the pro-ties by mail. Accordingly, ari appeal must be filed by August 27, 2007. C,F.R. § 2429.22),. The app,eal was filed time period the decision is served by filed See is (An additiozal five days is added to theon August 27,if2007; therefore, it is timely mail. and 5 properly before.the Gen.~r.al~,Counsel fg.r consideration..
':' '~,~'"'~" ': "i" '~'~"i; :' "i.~ " ~ ." :! ..,,

The P~egulations at 5 C.F,R. § 2423.11 (e) provide tile following grounds upon which the General Counsel may grant.an appeal of a Regional Director's decision to dismiss an unfair labor practice charge: (1) the decision did not consider a material fact that would have resulted in issuance of complaint; (2) the decision is based on a finding of a material fact that' is clearly erroneous; (3) the decision is .b~se.d on.an incorrect stateme~a,t of the, applicable rule of law; (4) there is no .A~thority precedent on the' legal issue in theease; g.r (5.) the manner in which the Kegion conducted the investigation has resulted' in prejudicial' e.n:or.' [d. dnd 5 C,F~R:. § 2423.1 l(f). On appeal, the Charging Party alleged, among, other things, that the l~eg~onal D~reeto.r s decis.ion is based on a finding of a material fact that is 61early errdnedus" and there is -tao Authority precedent, on. the legal .issue in the case, In this regard, the Charging Party contended thi~t the Regional Director erred in.,concluding that the parties were at imp.asse, The Charging Party alleged that the Regional Director erred in failing to find that the FSIP is' the final and bin~ng arbiter of impasses., The Chargi~ag Party also submitted that there is no Authority precedent that

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concerns the interpretation of 49 U.S,C. § 40122, and that nowhere in subsection (a) does it provide that unilateral implementation is a substitute for final agreement similar to the FSIP. This appeal has been e~efully considered. The R~gional Director's rationale for dismissing the charges is supported by the evidence of record, .The.appeal has failed to' establish any ground for either reversing the Regional Director's decision or remanding the ease for further investigation in accordance with 5 C.F,R, § 2423,1 l(e). The dismissal letter issued by the Regional Director constitutes the written statement of the reasons for not issuing a complaint as required bY 5 U.S.C. § 71IS(a)(1). ORDERED: For the foregoing reasons, the appeal is hereby DENIED.*

Colleen Duffy Kiko General Counsel

" Federal courts lack jurisdiction to review a deelsion by the General Counsel of the FLRA denying an appeal of a decision not to issue a ULP comp!aint. See, e.g., Patent Offioe Prof'l Ass'n v. FLRA, 128 F.3d 751,752 (D.C. Cir. 1998).

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UNITED STATES OF AMERICA BEFORE TI/E ~DERAL LABOR RELATIONS AUTHORITY OFFICE OF THE GENERAL COUNSEL

DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINIST1L~TION WASHINGTON, D.C. Charged Party and
NATIONAL A~ TRAFFIC CONTROLLERS ASSOCIATION, AFL-CIO Charging Party CERTIFICATE OF SERVICE

Case No. WA-CA-06-0648

I hereby certify ~hat on January29, 2008, I mailed the foregoing ORDER upon the interested parties in this action by placing a copy thereof, postage prepaid, in the U.S. Post Office mailbox at Washington, D.C., addressed as follows: CERTIF~D MAIL - RETURN RECEIPT REQUESTED CERTIFIED NOS. Eugene R. Freedman, Esquire Deputy .General Counsel NailonaLAir Traffic Controller~ Association, AFL-CIO 1325 Massachusetts Avenue, N.W. Washington, D.C. 20005 Elizabeth J. Head, Esquire Office of the Chief Counsel Federal Aviation Admi~stration Labor & Personnel Division, AGC-30 600 Ia~dependence Avenue, S.W., 1 St.Floor Washington, D.C. 20591 BYFAX Gerald M. Cole Regional Director, San Francisco

Cert No. 7006 2760 0005 6476 6253

Cert No. 7006 2760 0005 6476 6260

Management Analyst