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

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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 Attachment 1: FAA Order JO 7210.3V, Facility Operation.and Administration Dated February 14, 2008 (excerpt) ......................................................... 7 Supplemental Declaration of Thomas Cassady Dated March 4, 2008 ......................................................................... 0 1 Declaration of Rick Duchanne Dated February 28, 2008 ..................................................................... 2 1 Declaration of Cindy Rooney Dated February 29, 2008 ..................................................................... 4 1 Declaration of Gregory Dunne Dated February 20, 2008 ..................................................................... 7 1 Declaration of Miles R. Miller Dated February 28, 2008 ..................................................................... 21 Miller Attachment 1: Memorandum 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 Attaclmaent 3:2005 Primetime Leave Bidding Notice ................................. 36 Declaration of Joseph N. Miniace Dated March 4, 2004 ........................................................................37

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INDEX TO SUPPLEMENTAL APPENDIX ITEM PAGE

Miniace Attachmem 1: ULP Case No. WA-CA-06-0366 Dated April 7, 2006 ........ ' ................................................................... 41 ¯ Miniace Attacbanent 2: ULP Case No. WA-CA-06-0563 Dated July 11, 2006 .......................................................................... 3 4 Miniaee Attachment 3: ULP Case No. WA-CA-06-0648 Dated September 6, 2006 .................................................................... 4 4 Miniace Attachment 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 Miniace Attachment 7: Order Denying Appeal, Case No. WA-CA-06-0366 Dated Janualaj 29, 2008 ...................................................................... 65 Miniace Attachment 8: Order Denying Appeal, Case No. WA-CA-06-0563 Dated January 29, 2008 ..........................................................: ...........68 Miniace Attaclgnent 9: Order Denying Appeal, Case No. WA-CA-06-0648 Dated January 29, 2008 .......................................... " ..... , ...................... 71 Miniaee Attaclunent 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 ..................................................................... 77 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) Dated September 2003 ....................................................................... 3 8 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 October 3, 2007, and the paragraphs therein are incorporated by reference. 2, Appendix 10 of FAA Order 3550.10, Pay Administration, addresses the implementation of the Fair Labor Standards Act (FLSA) for Federal Aviation Administration (FAA) employees. Compensatory time policies contained in Appendix 10 are applicable to FAA employees who are no{ exempt from the FLSA, along with those contained in FAA Order 3550.15, FEPCA 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.

000001

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As a general prflaciplc, all FA.A employees who are not exempt from the FLSA ("nonexempt employees") are compensated for all time worked, including work performed before or after flieir scheduled shifts.
o

As a general principle, all overtime for non-exempt employees must be officially ordered and approved by theh" supelwisor 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 Htmaan Resottrce Policy Manual (HRPM) LW8 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 mad completeness with either a manual 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. 07-272C (Judge Emily C. Hewitt)

THE UNITED STATES, Defendam.

SUPPLEMENTAL DECLARATION OF MICHAEL MASSON I, Michael Masson, declare mid s~te as fotlows: 1. This declaration supplements the one I previously provided in this matter, dated October 4, 2007, and the paragraphs therein are incorporated by reference. 2. The Cru-X/ART system is ~t management tool utilized to effectuate FAA policy. The system in and of i~elf does not preclude an el~lployee fi'or~ perkb~Tnlng work without management approval or authorization, but if an employee ~s adheringto FAA policy regarding time and attend~ce and using the Cru-X/ART system property, he will be compensated for all work performed. 3. The CruoX/ART system does not allow an emptoyee to record that she performed work prior to her scheduled shift start time unless she: 1) is working a Flexible Work Schedule (FWS); 2) requests to change the scheduled start time of her shift; or 3) requests to work time outside of shift (TOS). In accordance with FAA Order Ji3 7120.3V, Facility Opera'don and Administration, § 2-2-6 (Attachment !), supervisory approval is required f6r an employee to either: i) change her seheduted shift start time or 2) request TOS.

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An FWS allows an employee to "flex" her scheduled sh~ start time by starting 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 start 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 supervisory approval to begin working flfirty minutes before or after the scheduled start time of her shift. The system automatically adjusts the end time of the shift of an employee worldng an FWS depending upon when she "flexed in" at the stea~, For example, 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 shift 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 clock," whereby an employee is expected or required to begin working immediately upon signing on Io the system, In aeeordatace 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 shift start time and can sign out no eoa'lier than fifteen minutes prior to the end of their scheduled shift ~ime. The intent behind allowing employees to do is to prevent congestion in mad m'otmd the Cru-YdART system computers at the beginning and end of shifts. 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 the eaatry at 6:50 a.m.

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cvcn though she entered 7:00 a,m. as her shift star~ time and is not supposed 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 O~:der JO 7210.3V, the Cru-X/ART electronic logs shall be used to indicate l~sponsibility at all operational positions, e,g. controlling air traffic at a radm" scope. An employee is reqttired to indicate in the Cru-X/ART system that she will be working am 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 rtot worldng ar~ 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. [f she attempts to indicate in the Ct~a-X/ART system that she is working an operational position at 6:55 a.m., the system will not allow that entTy. 10. The employee could physically begin worldng an operational position at 6:55 a.m. without making an entry in the Cru-X/ART system, but she would be doing so in violation of FAA policy. The Cru-X/ART system, however, would have no record of any work performed in violation of policy.

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In accordance with 28 U.8.C. § 1746, I declare under penalty of perjury that the foregoing is true and correct to the best of my lmowledge and belief. Executed on this 4th day of March, 2008.

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

OrderJO 7210.3V
Facility Operation and Administration
February 14, 2008

An electronic version of this publication is on the internet at http://www, fan.gov/atpubs
Distribution: ZAT-721, ZAT-464 Iafltlated By: A~JR-0 Vice President, System Operations Selwices

000007

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~/14/08 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, duplicate initials may be 'assigned to personnel worldng in different areas of speciaiization. b. U111ess 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 IN/OUT AND ON/OFF PROCEDURES The following'is applicable to all FAA air traffic facilities, but does not apply to-FAA contract facilities. Cru-X/ART is the offioial time and attendance system for both signing in/out for a shift and on and off po~ifions, not paper logs nor Commofi ARTS/HOST/NTMIdM1FC or' other Aggney or local programg. Facilities may use Common ARTS/HOSTflqTML/M1FC to sign bn positions 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. a. FAA sup~rvlsory traffic management coordinators (STMC)/operatlons supervisors (OS)/National Traffic Management Officers (NTMO)lcontrollersin-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 ATe Resource Tool (ART) system. .. 1. The facility air traffio manager shall en~ure that procedures are in place so that operatioiaal 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 OMIC has approved

30 7210.3V leave at the start of the assigned shirt, Sign in, using the assigned shift start time,, may occur up to 15 mhmtes before an employee's assigned shift. Earning of, and signing in re1; Time Outside Shift time 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 h~ accordance with local and national policy, Earning Time Outside Shift (overtime, credit hours, etc.) must be approved by the OS/STMC/NTMO/CIC or OMIC Ftor to entering it into Cru-X/ART or working it. (b)' In situation~ where it is lmown ~n ad~;ance that employees wil! 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 Tim~ 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 Cm X!ART. 3, The supervisor/CIC position relief briefing cheek list shall include:

(a) T&Astatus,"
(b) Other Duties, (e) Time Outside Shift (TOS) requests/app)ovals, and '(d) Leave requests/approvals. NOTEUpon signing on position the OS/STMC/NTMO/C1C assumes full responsibility of al! check list itent~ fl~ch~dlng those identified above, 4. It is the emi~loyee'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, "Positiou Lo~," shall be used to indicate position responsibility, When the

Responsibilities

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JO 7210.3V ART system has been restored or the facility reocc~, 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 eanriot be entered, into ART, the paper I~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-tn-~ charge (OSIC), traffic management coordinator-in-charge (TMCIC), and CIC functions. It is the responsibility of the relieved controller to enter the correct change el position responsibility time in Cru-X/ART, In situations where there is no relieved cont.rolli~r, such as when opening a positJon~ 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 supervlsor/STMC/NTMO/ClC shall then enter that time into Cru-X!ART. 2-2-7. CIRNOT HANDUNG . A CIRNOT initiated by WMSCR!NNCC shall be transmitted to all circuit users. a. WMSCR/NNCC shall maintain a record of all CIRNOTs and forward a hard copy to ~FAA Headquarters, Terminal Safety and Operations Support by the most expeditious means available. b. AFSS/FSS air traffic managers shall provide CIRNOTs to the T~rminal Operations Service Area office and/or other field facilities upon request. c. CIRNOTs should be retained at the receiving facility for 120 days.
NOTEThe mo~t expeditious means is transmitting the CIRNOT via facsimile, telephone, mai~ electronic mai!, etc,

2/14/08

a. Terminal Operations Service Area office shall distribute GENOTs to the folIowing using the most expeditious means available: 1.. FAA contract and non-Federal towers. 2. FAA milit;ary ATREPS assigned to the service area. NOTgThe most expeditious means is transmitting the GENOT via facsimile, telephone, mail, electronic mail, etc. b. The AFSS/FSS shall distribute the GENOT to all FAA field ~aciliti~s addressed; except ARTCCs, wilhin their designated areas as determined by the respective Service Area office using the most expeditious means available.
REFgR~NCEFAAO JO 72~0,3, Pm'a 2-2-8a2 NoI~,

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.
"REFERENCE- Pa(a 2-2-8a2 Note, " FAA'O JO 7210,3,

d. Air traffic managers at all facilities shall: ¯ 1. Disseminate GENOT information to concerned facility personnel. The content of the message will dictate the priority of the distribution. 2. Ensure that .all employees with a need to know are thoroughly briefed on the change prior to performing their duties. 3.Ensure that the appropriate entry is made in the employee's Training and Proficiency Record, Form 3120-t.

2-2-9. PERSONNEL BRIEFINGS REGARDING AIR TRAFFIC BULLETIN ITEMS
The Air Traf~c Bulletin is a means of communication between headquarters 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 imlJlement 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 ATe 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 CLAII~S

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

) ) ) ) ) ) ) ) ) )

No, 07-272C (htdge Eraily C, Hewitt)

THt~ UNITED STATE, S, D~fe'adant.

0oooto

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rchn~ttos) before ~he scheduled stm~ time of their shift, For example, an employee working a~ FWS w~th a thirty mintrte "flex" who is scheduled to beg~n his shift at 7:00 a.m. may begin his shift anytime between 6:30 a.m. and 7:30 a.m,

In accordance w~.th 28 U.S.C. §1746, I declare under penalty of perjury t~at th~ foregoizg is tt~e v~ad correct to the best of my k~owledge and belief,

Executed on this ~ day of February, 2008.

YHOMAS tA~ ......

000011

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

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

TIlE UNITED STATES, Defendmat.

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

No. 07-272C JudgeEmily C. Hewitt

DECLARATION OF RICHARD DucHARME I, Richard Ducharme, declare and state as follows: 1. My current position is Director, Terminal Mission Support, Air Traffic Organization (ATO), Federal Aviation Administration (FAA), U.S. Deparmaent 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 Administrative 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 Mm~ager (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 discussions with Mr. Krasner that there c6~uld be a.significant cost to the Agency ha the ultimate pay out of credit horn's should controllers with large leave balances at-tempt to cash Out prior to retirement. Also, the use of credit hours also could adversely impact the Agency sfiace bacldill overtime would likely be required if and when employees used a large number of credit hours to take time off.

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

DITCH -Y~

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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. Riooney, 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 (ATO), 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 ATO policies. The policy applicable to the operation of air traffic facilities is FAA Order JO 7210.3V, Facility Operati on 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 Clxt-X/ART system for time and attendance purposes, sucll as A.ir Traffic Conta'ol Specialists (ATCSs) and Traffic Management Coordinators (TMCs), are required to sign on to the Cru-X/ART system prior to performing any world. If Plaintiffs axe

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performing job duties prior to signhag on to the Cru-X/ART system, they are doing so in violation of FA_A pofiey. 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 per.form any work prior to the begimfing of their scheduled shift. An employee may sign on to her shift in the Cru-X/ART system prior to the scheduled stat~ 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 work prior to the scheduled start time of her shift by her supervisor, thesupervisor 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 per~brmed 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 requesthag to change her shift or to work TOS, she is doing so in violation of FAA policy. 6. Employees axe required to sign offthe Cru-X/ART system at the end of their scheduled shift and are not supposed to perform any work after the.end of their scheduled shift. A~ employee may sign out of her shift in the Crib-X/ART system prior to the scheduled end of her shift, but she is required 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 from her manager or supervisor.

000015

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Employees shotfld only perform work before or after their shift wifll 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 t~xle and correct to the best of my krtowledge and belief. Executed on this 29 day of FeM~aary, 2008,

CYNTHIA M. ROONEY

00001~

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IN 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)

DECLARATION OF GREGORY DUNNE I, Gregory Dunne, declare and state as follows: 1. I am currently the Traffic Management Officer assigned to the George Bush Intercontinental Air Traffic Control Tower (ATCT) (also known by its FAA three-letter identifier "IAH") and Houston Terminal Radar Approach Control (TRACON) (also known as "I90"), System Operations Services Unit, Air Traffic Organization (ATO), Federal Aviation Administration (FAA), U.S. Department of Transportation (DOT). I have been in this position since March 2003. I have been an employee of the FAA since June 1976 in the following positions: Air Traffic Control Specialist, New York Air Route Traffic Control Center, June 1976 Airspace and Procedures Specialist, New York Air Route Traffic Control Center, May 1985 Supervisory Air Traffic Control Specialist, Washington Air Route Traffic Control Center, June 1987 Evaluation Specialist, Office of System Effectiveness, ATH-150, November 1989 Assistant Branch Manager, Office of System Effectiveness, ATH-150, April, 1992 Assistant Air Traffic Manager, Pittsburgh Air Traffic Control Tower, August 2001 Traffic Management Officer, Houston TRACON, March 2003

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2. As a Traffic Management Officer at IAH/190, among my duties is to manage the Traffic Management Coordinators (TMCs) assigned there, including Donald Peterson. Mr. Peterson has been assigned to I90 since November 2004. Traffic Management Coordinators assigned to 190 are represented by the National Air Traffic Controllers Association (NATCA). The labor agreement between the FAA and NATCA contains a negotiated grievance procedure that allows employees to grieve issues surrounding their working conditions, including issues regarding pay. 3. As a general principle, all 190 employees, including Mr. Peterson, are compensated for all worked performed, including work performed before or after their schedule shifts. I am not aware of and have not observed Mr. Peterson performing work before or al'ter his normal duty hours without compensation, t have not required to Mr. Peterson to perl'orm work before or after his ,aormal duty hours wilhout compensation. Prior to this lawsuit, I do not recall nor does the facility have any record of Mr. Peterson ever claiming that he was not compensated for work performed either before or after one of his scheduled shifts. 1 do not recall nor does the facility have a record of any grievances filed by Mr. Peterson claiming that he was not compensated for work performed either before or after one of his scheduled shifts. I do not recall nor does the facility have a record of any grievances filed by NATCA claiming that Mr. Peterson was not compensated for work performed either before or after one of his scheduled shifts. 4. When Mr. Peterson works in excess of forty (40) hours in a week, he has been compensated 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 in excess of eight (8) hours in a day and credit hours when he volunteered to earn them and there was meaningful work for him to perform. Mr. Peterson could also have requested to earn compensatory time in lieu of overtime pay. Credit
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hours were requested by Mr. Peterson and earned in accordance with the provisions of applicable FAA directives. Since May 2005, Mr. Peterson has requested and earned either overtime or c,'edit hours on over 250 separate workdays t'o1: work performed outside of his
..'{ Deleted: ¶

normal duty hours for time periods rang~g from fifteen (15) minutes to over three (3) hours~. 5. Bidding for work schedules and vacation leave at IAH and I90 is conducted in accordance with the NATCA-established seniority policy and the labor contract between the FAA and NATCA. The bidding schedule provides ample duty time for Mr. Peterson and other employees to select their work schedules and vacation leave during the bidding process. 6. FAA management at IAH/I90 did not authorize or approve Mr. Peterson spending time outside of his regular duty hours bidding his own work schedules and vacation leave or assisting other employees with bidding. Prior to this lawsuit, FAA management at IAH/190 was never aware of Mr. Peterson's claim that he spent time outside of his regular duty hours bidding or assisting other employees with bidding. 7. In accordance with FAA policies, all TMCs, including Mr. Peterson, are required to sign-in to the Cru-X/ART system at the beginning of their shift, prior to performing any duties. CruX/ART has been operational at IAH/190 since March 2005. Prior to then, time and attendance was recording using a paper-based system. In accordance with the labor agreement with NATCA, TMCs' scheduled shift times are posted at least twenty-eight (28) days in advance of the shift. 8. Prior to assuming an operational position, Mr. Peterson and other TMCs at IAladI90 are required to engage in "duty familiarization" functions, which include reviewing the mandatory review binder and other briefing items and exchanging air traffic control information with the TMC being relieved. These functions are part of a TMCs regularly assigned duties and are to be performed on duty time, after signing on to the Cru-X/ART
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system. Typically. shifts are designed to overlap so that these "duty familiarization" l~mctions, including exchanging information with the TMC being relieved, occur during the relieving, and relieved TMCs reo_ularlv scheduled shift. If these functions cannot be performed during the course of TMCs' assigned shifts, the FAA provides overtime for the TMCs to accomplish the functions. 9. FAA management does not expect Mr. Peterson or any other employee at IAH/190 to perform any work before or after their shifts without compensation. Both prior to and after the Cru-X/ART system was implemented at IAH/190, FAA management regularly authorized and approved Mr. Peterson to work overtime before and after his shift to compensate him for work performed. 10. Mr. Peterson works a flexible work schedule (FWS), which permits him to begin Iris shift up to thirty (30) minutes prior to his scheduled shift start time. He regularly elects to "flex in" prior to his scheduled shift start time. Frequently, Mr. Peterson has requested to begin his shift earlier than thirty minutes before his scheduled shift start time. FAA management has regularly approved Mr. Peterson changing his shift in those situations, resulting in him being compensated for time worked prior to the original scheduled start time of his shift.

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 0f~, ~2008: ...........................................................................

: ......... I Deleted: 20th

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

j

GREGORY DUNNE

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IN THE UNITED STATES COURT OF FEDERAL CLAIM8

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

)
)

). ) ) ) ) ) )
No. 07-272C (Judg~ Emily C. Hewitt)

THE, UNITED STATUES, Defendant.

I, Miies R. Mille, r,.deeltu~ m~d state as foltows: 1, I am currently the Air Traffiv M~mager asslgn~ to the la~ksonvi!le Air Route Traffic Control Center (M~TCC) (a~so known by its FAA thr~e-le~ter identifier "ZAX~'), Eastern En Route Service Area, Air Traffic Orgmfization (ATO), Federal Avlafi~n Administration (FAA), U.S. Departm.ent of Transportation (DOT). I havebe~, in this position since Mar~h 1998. I have b~en an employee of the FAA since July I974 in the foiloM~g positions: Air TrN'fic Conwot Sp~eig|ist, Mh~mi Center,~l~ly 1974 Air Tmff!.e. Control Speeialis~, C~'eer Approach Control,.November t 979 Air Traffic Control. Specialist, Boston Center, A.pr}l 19~2 Quality Assurance Specialist, Summer 1983 Area SUl~rvisor.,. Boston Center, July I985 Ar~a Manager, Boston Center, August 1986 Operations Specialist, New EngIand ReNonal Oftiee, August !988 ~.'u~ea Manager, Pensaoola 'IILACON, Aug~qt t989

¯ Page 1 o:~'4

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Systems ,and Faeillty Support. Sp~eiaiisl, New England Regionnl Office, February 1992 As~ista~t Air Traffic Manager, Man.chester ApFroach, February t'993 Acting Air Traffic Manager, Manchester Approach, Febma~ 1994 Air Trafiie Manager, lVlanehester Approach, October 1995 Air Traffic Manager, Jacksonville Center, March 1998. As an Air Traffio Manager at ZJX, among my duties is to manage Air Trg.ffi.e ConIrol Specialists (ATCSs) assigned fl~ere, including .O.ary Bukovskey. Mr. Bukovskey ha.~ been assigned, to ZJX s~taee, July 200~. Air Traffic Co.ntrol Spe~ists assigned to ZIX are represented by the Nmiona[ Mr Traffic Contro]fer~ Association ~ATCA). The labor t~greement between the FAA a~d NATCA ontai~ a ~egot~ated grievance procedure that allows employees to grieve issues surroundlrig their working ooMi/ions, holuding issues reg~ding pay. As a get,era] princ, ipl.e~ ~II 7~X employee~,ino]nding Mr; Bukovskey~, ~re ¢ompe~ated-for all worked performed, Jn.e.~udiing work pen:formed bef0reor ai]er'tlleir scheduled .shifts. Prior to lhis ilawsu[l, I do not reea~! nor does the. thcil~ty have any record of Mr. Bukovskey ever claiming that he. was ~ot compensated for work performed either before or after ~ne ofb]s sehedu'ied shifts. I do notl~eca|l nor does the facility have a record of any grievances filed by Mr; Bukovskey e~aiming that he was not eompe~at~ for work performed either before or ~ one of la~s sehedtfled shifts. I do aot recall not" does the facility l~ve a record of any grievances filed by NATCA claiming theMr. Bukovskey waz not. compensated for work ¯ perform~ either before or after one of his scheduled shii~.

Page 2 of 4

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4. FAA r0anagement at ZJX has never req~red, authorized, or expected Mr. Bukovsk~y to perform work prior to the beginning of his scheduled shift or afar the scheduled endof his shift without compensation. ,FAA ma~aagement at LrX is not aware of Mr. Bukovskey ever having perforated work before or after his st~heduled shit~t without eompertsafion. 5. When Mr. Bukovsk¢y 'works in excess of forty (46) hours in a week, he,has been compensated in the fom~ ofovertim~ pay or credit hours earned. He has received overtime pay for those hours that he has beeII required to work in excess of eight (8) hours in a day and credit hours when ho vol'umaered.to earn thean mad th~ was meaningful weak.for him to perl'orm. M~', Bukovskey eotdd also hav~ reque~ted to earn compensatory time in lieu o~ over '.~.e pay. Credit hour~ were requested by Mr. Bukovskey and earned in aecordm~ee with the pmvisiorts of applicable FAA directives. 6. hx 20(}6, as in px~.vious years, FAA management at ZJX negotiated a m~aorartdtmi of understanding (MOU) with NATCA representatiws at ZJX regarding the bidding o£work s~hedules and vacation ieave, q~e MOU stated: 2, Each BUE will r6~eive detailing the date and ~im¢ for each employee to bid, by their azea's seniority, for RDO's and V~mation Leave with bidding begimfing on November 05, 2006. tn *he event an employee will not be available to be present to bid, the employee shall provide the NATCA area represent~tlve or ~he ~hedtding supervisor with their selection(s)~ 3. Each BUE will be provided with a detailed bid package that will contain dates and times for seleetlng mad for five (5) rout~A., of bid vacation leave; Employees wi|l be ~eleased from duty 15 m~m~tes prior *o their ~heduled bid time, unless not operationally feosible, for the.purpose of biddh~g. Employees will be allot*ed :20 minutes to make theirRDO and first i~ound Of

Page 3 of 4

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vacation leave sele~ion, and 15 minutes for each of the remaining four (4) rounds of vacation [cave. All lea~ve requests w~ll b~ on foma OPM-7!,

In aecoiztance with 28 U.S~C. {}1746, I declare under penalty of perjury that the foregoing is true and eorrec~ 'to the best of my knowledge and belief. Executed o~a fl~ii~ ~ day of Feblamry, 2008,

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Memorandum of Understanding Bet~veeu the National Air Traffic Controller association, ZJX Local and the Federal Aviation Administration Jacksonville Air route. Traffic Control Center
This agrem~a.ent is made by and between tl~e National Air traffic Association (*~NATCA" or "Union") and th~ Federal A:ctafion Administration ("FAA" or "AgenCy"'), collectively known as the "Partie~,~" This agreement represents the Parties complete understandh~g of the procedures to be used for RDO selection and adm'mistration of leave.

1. Schedule bidding will be accomplished b,y seniority as determined by NATCA., NATCA will provide seniority information for each area. Employees with two (2) ~:adar sectors or less remaining until becoming a CPC as of November !, .2006, wil~be eligible to bid as a CPC. Employees who have previously been certified in an Area within Jacksonville ARTCC shall be considered as CPC's for the ptrrpose of bidding the 2007 schedule. Those employees deemed ineligible to bid as CPC's shall bid by seniority from designated Developmental lines. AI! developmentals who ~re certified on nil their radar associate .positions will bid as a radar developmentak 2. Each BUE wi!! receive a bid package de,ailing fl~e date and time for each employee ~o bid, by their area*s seniority, fox RDO's and Vacation Leave w.ith biddi~g beginning on November 05, 2006. In the event an employee will not be available to be present to bid, the employee shall provide the NATCA area reN'esentati~e or the scheduling supervisor wlth.their se[e0tion(s). 3. Each BUE will be provided with a detailed bid package that will contain dates and times t'o~: selecting RDO's and. for five (5) rounds of bid vacation !eave. Employees will b~ released Born duty 15 :mhmtes prior to their scheduled bkl time, unless notopea'ationally feasibIe,-fro" the purpose ofNdding. EmpIoyees will be allotted 20 minutes to nmke their RDO.aad fu~t round of vacation leave selection,- and 15 minutes for each of the remaining four (4)rounds ofvacation ~eave. AII leave.requests will be on form OPM:71. 4. Employees may only r~quest leaveopportmfities.that the Agency has determined are available. Forthis year the Agen¢y has determined the following; A. Up to two (2) employe~ p~.area, per day, can be on vacation leave bet-,vee~ January 7 and May 12, 2007, B. Up to one per ore,v, per day, 'fYom May 13 fla'ough August 12 and ' December 23, 2007 thra Janum'y 5, 2008, C, Up m ~hree (3) employees per area, per day~ between August 13 and Deceanber 22. D. During each round employees may make one (1) request o'fone (1) week or wee (2) consecutive weeks duration or portions thereof Any po~ion of a week bid shall count as a full week for bidding put:poses. D~ring these. five (5) rounds employees can bld accrued annual teave, mm.ual leave that will be accrued during ~he year, m~d any restored balance for the year. Once you. PASS a round you will not be able to bid any longer,

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5. Employee~ a~uay submit (us~g form OPM-71), ~eque~t for ~a~v~eation leave begJm~hag January .1 for the leave year endMg January 5, 2008. Tl~is MOU te~ardnates.Januat3, 5, 2008.

Air

.get

Agency Head Review Date

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FROM ;ffAA MMU

F~d::~, 28 2888 04;b-7PM

P2

IN THE UNITED STATES COURT OF FEDERAL CLAIM~

MARK O: ABBEY, it el., .Plahati ft's,
V,

) ) ) )
)

)

)
Defendant,

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

THE UNITED STATES,

) ) )
)

DECLARATION OF FRED P,~OSPERI I, F~ed Prosperi, d~olar¢~ and state as 'l'bllow~: 1, I am o'm"rentl~ th~ Atr Traffic Manager of file Morrismwn, New Jersey Air Tra~e Control Tower (ATCT) (~so kno~. by its ~'¢e-let~er tdentifle~ "MMU"), Eas~rn Tenlfi~ Soiwices Unit, Air Traffio Org~zatton (ATe), Fedel~l Aviation Admtntstt'atton ~AA), U.S. Dep~ment of Tl'anspor~afion @02"). I have ~n in tMs positton since J~e 2004, I ~vc beell ~ emplogee of the PAA since August 1982 in fl~e ~o~ow~ positions: a. b. e, d, e. Developmental Ah' ~aflic Control Specialist, New York TRACON; November, 1982 - Februm'y 1984. " Air Traffio Coati 9peeial~st, Roch~ter, NY ATCT; Febru~ 1984 December, 1988 Ak 'trifle Control Sp~ei~ist, Newark, NJ ATcT; Deoember 1988 - August 1997 Suppo~ Specialist, New~lq NJ ATCT; August 1997 - O~tob~r 1999 Regional AT Specialist, Easbm Region ATD; October 1999 - J~e 2004

2, As Ab Ti'affic Mmager of MMU, among my duties is m manage the Air Traffio Con~'ol SpeeiNists (ATCS) ~signed thdre, ~cluding Frank Savage. Mr. Sav~ta to ~U stnee Deoember, 1990, Air Trifle Control SpecMis~ assigned to ~U are
rc~res~ted by the Nafiondl Air Tra'l:l~ Controllers Asst~i~tion (NATCA).

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FROM :FRA MMU

u.greement between thc FAA artd ~qATCA contains a negoti~tted grievance prb0edure that allows employees to grieve issues sun'ounding their wofldng' oondl/ions, ln~ludhxg iss.u.es regarding p.ay, : ....

AS 'k i,~n~ral principle, all MMU omployces, includlng Mr. Savasm, are eompensat, d :for worked performed, including work perfbrmed before or aRer their schcdx!l~ shifts..Paior to.

fl](s l~wsuit, I do not recall nor does ff~e facility h~ve any record of Me', Savastn ever ~laimtng that h~ was not compensated for work p~for,ued e~thcr b~fore or after one' of his sche~lulcd shifts, I do not recall nor does tho facility have a reeo,rd of any grtevan~s filed by Mr. Savasta c[aimit~g that t~ w~s not compensated for work performed either before or a'fter o~a¢ of his ~cheduled shifts. I do not recall nor does ~e t~leilhy have a record of may gr~ov0.nce~ fried by NATCA claiming that M~:, S~ivasta w~s not compensated for work perfoma6d either before' or after one of his scheduled shifts, 4. The Mota'tstown ATCT controls air traffic fi'om 6;45 ~t,m. to 10:30 p.m, local thxae, seven days d week, The "opening" sttift ibr ATCSs is regularly scheduled t6 begin ~it 6:15 a,m. local time in order for ATCSs to complet~ at! of the tasks required to open ffio ~ontrot tower prior t6 6;45 a,m.' Two ATCSs are normally assigned to the Openhag slxifL FAA managemmat neither expects nor requires ATCSs, including Mr, Savasta, to perfon~ clay thsJ~d prior to the start o~ their ~ch~duled shifts, Including ffbllowing procedures to opeaa the ~0ntrol tower. The tasks performed a~ pbxt of the' opening procedm'es ~o part of an ATCSs re~d~r ~vork a~tgnmems to be carried out while in a paid status. ""

The "closing shift" at Morristown ATCT is regularly schodu!ed to end at. 10;30 p,m, ~ddwo A'I'CS~ m'e n~rmMiy' ~ssi~ed to that shtl~. ~AA. m~agement nei~ e~eets ~or roq~res
ATC~s, tnol~ng ~, S~vasl~., ~ perform any tt~k~ after th~ end ofth~h' ~oh~ulcd

....... 000028

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FROM ;FAA MMU

FAX NO. ;19T3~386629

F~b, 28 2~B8 I~4:SSPM P4

i~eluding 'Ibl~ow~g pt~edure~ to clo~ tho control ~ow~r. Th~ t~ks p~rf~rm~d'a~ p~ of ~ closin~ p,rooedufes m'e pan of an ATCSs r~gulm: work assignmen~ t0 be ea~ied out while a paid status. ..

6. In a¢cord~ce ~th ~AA poliobs, ~1 ATGSs, including Mr, Snva~a, are wqu~r~d ~ aign-in to ~o C~-~ART ~ystem at ~z b0g~ing of their shlg, prior to p~rforming a~y duties. CruX/ART has been operational at MMU since April 2005, Prior to that tim~, ~z and a~ndance wa~.recording using a pa~er-based system, in a¢¢ordm~ce wtfl~ ~ agrcoment wt~ NATCA, ATGSs seh~dul¢fl shi~ times m'¢ ~ost~d at bast ~nty-etght (28) days in advance of~ shiK. ~. :... .

7, A~ T~a Gon~l Specialists ~aigacd to MMU bid o~ their work schedules ~¢~:#.year:in. ~m'dm~ wi~ pro~edm'~s n~gofia~¢d ~th NATGA, All bldding by ATCSs is co~duct~d on duty ~imz. Similarly, ATCSs assigned to MM~ bid on their w~afion leav~,~h~:~q¢~ year tn a~ord~c~ ~th pt'ooedur¢~ negotiated wifl~ NATCA. A!l.bidding by A'&~SS b conducted on duty tlm~,

In aceor~nce wi~ 28 U, S.C. ~ 1746, I daolm'e reader p~alty o l'perju~ that ~a foregoi~,b and ¢o~eet to th'e best of my ~aowledgo and belief. ExCeut~ on ~ts 28th day of Fcbruary, 2008, "' : ; ' '

Page 3 of 3

.......,,,-,,;, 000029

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IN TI-~ UNITED .STATES COURT OF FEDEI:~AL CLAIMS

MAKK G. ABBEY, et ai., Plaintiffs, No. i07:272C (Judge Emily C, Hewitt) THE UNITED STATE.S, De~ndant.

DECLARATION OF JUAN FUENTES

i, Juan Fuentes; dectare and state, as follows: 1. i um currently the Assistant Air Traft2c.Manager of the Miami-Air Traffic ~0ntrol TOwer (ATCT) (also known by its. three-letter identifier "MIA?}, Eastern 'rermin~tl Service Unit, Air Traffic Orgafization {A°rO), i~deral Aviation Administration (RAA), 121.S. Department of Transportation (DOT). I have bee~;~ in this position since Jtme~ -1999. I have: belch ~m employee of the FAA since May, 1988~n the:following positions: Air Traffic Contro! Specialist, Tu.cson Towel: (TUS), May: 1988 --F~bruary. 1990; Air Trgffie eo.ntrol Si~e~ial.ist, Tucson Tr~eON .(U.9.0), £ebma~:y 191t9 ~ April 1:99 i; Aft" Traffic Control Sp.eei~lis~, San 4~uan CERAP .(~U), April ! 991-~ay 3 992; Plans & Program Specialist; 8au Juan CERAP (ZSU), May 1992 -March 1994; SuperviSory Air Traf~e. Contmi Specialist, San Juan CERAP (ZSLI); l~Im-ch ! 994 - October 1996; Resource Manag~men~ Specialist, FAA.Soufl~emRegion ~ASO-540), October 1996 - .Tune 1999. 2. As Assistant Air Traffic Manager 0fMIA, among my duties is t0manage the.Air Traffic Control Specialists (ATCS) assignedthere; including Eathefine Adcock. Ms..Ad~oek!has beeh:assigned 1:o MIA since March 1991. Mr Traffic Control Specialists assigned to.MIA are represented by the National Air Traffic Co~troll~rs Association (NATCA). The labor

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~agreement between the FAA m~dNATCA ¢onl~fi.!as a negotiated grlevaneeprocedur~.~hat allows employeesto grieve issues sun'ound]ng tl~e]r working conditions, ineluding"i~sues ~garding pay. .As a general principle, all M~employees, ~n~lud]ng Ms. Adcock, are compensated f6r all worked performed, including work performed before ~r af~er, fl~e].r schedule shifts. Pr[0r to this lawsuit.~ I d0 :~Ot recall nor does:fl~e facility .have ~y.record of.Mr, Ade~k ever claiming tl~at she ~aSnot ~ompensated for woi'k performed eilhe~ b~fore or after one ofher scheduled shifts Or for time spent bidding ~work schedule or vacation iea~e While off duty, i do not recall nor does the facility have a r~ord 0f m~y grievm~ee~ ~ed by MS. AdeOek ¢laim~g that she was not compensated foa: ~ork pe~ormed eider before or a~er one ot' her ~Ched~led sh~fiS or ¯ [br time spent biddi~ag wh[i~ .~ff duty. I do not ree~l nor does ~e 'facility have areeord of.any ~ievm~ees ~ed by NATCA claiming that Ms, Adeoek was not compensated [br work perl'on~ed either be~bre or a~er ~ne of her scheduled shR)s or ~ortime spent bidding wlfile off du~,. There was norequixement for or ~xphctation that Ms. Ad¢oek or any o~er ATCS at M~ t0 bid while off duty, [P!ae FAA ~ad NATCA provided for a proxy system, to allow employees to submit'flaemb~ds;~ead o~{~e if they were going to be out oFihe facility when: ~heh' b~idding time ocem~ed. In 2007, FAA.m~agement at~A neg0tia~ed a memorandum ofmaderStanding (MOU)with NATCA t'epre~entativ~s at MIA that addressed procedm~e~ for bidding work sclaedules. (At~achmen~ 1). The MOU prov[dedthat emp!6y.e~s who Would beabsem fromfla~ facility on their bidding days could, prior to.theil: abs~aee, We their bid ~equests t0 ma Operafi0~al

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Supervisor-in-Charge (OSIC)or a Controller-in-Charge (~IC~ so that,tSe OSIC/C]C could bid, for them. (Attachment l:),
6.

In prior yearS, NATCA was in .~laarge of the bidding. 20(}2 Primetime Leave Bidding Notice (Attachment 2); .2~)05 Primetim~. Le~tve Bidding NdtiCe (,Atiachment 3), fin 2005.~ NATCA indicated in its bidding, notice that ~mplo:yees could bid u~in~ ~/proX.y. (Attactqment 3).

In accordance with 28 U.8.C. {}1746, I declm'e under penalty of perjm'y thatthe foregoing is true and correct to the best of my lcnowledge mad belief.

ExiUlJuA ~NTE~@~,~~.ed on_ this 4 d~y of Mm'ch, 2(!08.

Page 3 of 3

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

This agreement is made and entered into by local National Air Traffic ControileCs 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 asslgned 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 schedu{~,, ii. The shift rotation will b~ permanent as indicated in attachment 1. Basic Watch Schedule / Bidding Process: ~-~ "

a, One week prior to bidding, Management will post a notice, informing eaeh 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 bld cycle by entering their selected line on their b{dding day and designated time.

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

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ii. Provide the OSiC/CIC, either by phone, or in writing, their requested schedule line 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.

)r FAA

Date

Agency Head Review

Att~chmgat 2

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PRIMETIME LEAVE BIDDING NO'I'ICE
On or about January 25, 2002~ NATCA Local MiA will begin bidding Primat!rile Annual Leave ~ t.he Primetlme Leave Pedcd defined.below. Sunday, May 26, 2002 t0.Monday Sept. 2, 2002 Sunday, November 17, 2.002 ..to Saturday, November 30, 2002 Wednesday, December 18, 2002 to Wednesday, January 1,2003

Everyone is guaranteed a minimum of two consecutive 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 seniority list and bld l.ndivtdually~ .not aS groups. The seniority list will be posted next to the roster, Please write your name In. the slots and cross your name off the seniority list,: PleaSe be sur~ to fill Out an SF-71.;" Use theex~.ml~l,?, po~d, Include . Team Number, and place Inlhe NATCA Lockbox !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: o Each ~ndivldual, when it is ~he[rturn has 4 (four) hours ~o bid after notification. Notification may be by telephone or upon arrival at the facility, If you do no1 bid within that time frame .Y..0U WILL BEE SKIPPED!!~! 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 arl~ unreachable for a period of four (4) days you will be skipped. NO EXCEPTIONSI!~!

If you have any questlons,,_.~.ease see any NATCA officer.

Lort Rebhan January 14, 2002

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PRiMETiiViE LEAVE BIDDING NOTICE
On or about December 5, 2005, NATCA Local MIA will begin bidding Primetime Annual Leave for the Prirnetime Leave Period defined below. ¯ We will be bidding Prime Time Leave differently than we have the past couple of years. That is, we will post a seniority list and bid on TVVO 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 will be utilized throughout the bidding process: o 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 [tame YOU WILL BE SKIPPEDtI!! 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 ~kipped. NO EXCEPTIONS!!!!
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 O. ABBEY, et al,, Plaintiffs,

THE UNITED STATES,
Defendmat,

) ) ) ) ) ) ) ) ) ) )

No. 07-272C Judge Emily C. Hewitt

DECLARATION OF JOSEPH N, MINIACE I, Joseph N. Mirfiace, decloxe'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 (FAX), 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) diffel"em bm'gaining units. 2. I served as the FAA's Chief Negotiator in the most recent eonta'act negotiations with the National Air Traffic Controllers Association (NATCA) tbr the contract covering, among others, Air Traffic Control Specialists ~ATCSs) and Traffic Management Coordinators (TMCs). Barry Krasner served as Chief Negotiator for NATCA. The negotiations commenced in July 2005 and the Pat°des 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 al~icles, 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 bargaining offer on September 3, 2006, pursuant to anthority granted under 49 U.S.C. §§ 106 and 40122. 4..Beginning 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 Charge 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 (Jma. 29, 2008); Order Denying Appeal, Case No. WA-CA-06-0563 (Jan. 29, 2008); Order Denying AppeaI, Case No. WA-CA-06-0648 (Jan. 29, 2008) (Attachments 7-9). On January 29, 2008, the FLRA GC denied NATCA's appeals of the dismissals. Id. NATCA filed motions for reconsideration of the denials with the FLRA GC. On February 26, 2008, th,e FLRA GC denied NATCA's motions for reconsideration. Order Denyhag 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 Reconsideration, Case No. WA-CA-06-0648 (Feb. 26, 2008) (Attachments 10-12). 7. The FLRA's dismissal of these ULP 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 legality of the FAA's actions in negotiating and implementing the 2006 dontract with NATCA. 8. Article 38, Section 9 of the.2006 contract addresses the earning of compensatory time offfor bargaining unit employees. 2006 NATCA/FAA Conla'act (available at https://employees.faa.gov/org/staffoffices/ahr/labor relations/agreements/media/06-

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06%20NATCA%20CPC-%20Bus%200061%201545%200053.pd~). The 2003 contract contained a similar provihion in Article 38, Section 7. 2003 NATCA/FAA Contract (Attachment 13). Aa'ficle 34, Section 7 of the 2006 contract addresses the earning of credit hours for bat-gaining unit employees. 2006 NATCA!FAA Conla'act. The 2003 conla'act contained a similar provision in Article 34, Section 8.2003 NATCA/FAA Contract (Attachment 13). The 2003 contract was also supplemented by an agreement between the FAA and NATCA that provided employees could accrue more than twenty-four hours of credit hours and that employees "will in no instance be able to convert unused credit hours into pay." Letter from Herman to McN~lly (July 8., 1998) (Attaclmaent 14).

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 4th day of March, 2008.

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Form Exempt Under 44 U.S,C. 3512 UNIT