Whoops! Some Controllers Left Out of Pay Arrangement

Ten air traffic controllers got left out when the agency and union negotiated an agreement to transfer controllers from the GS schedule to the new controller pay system. A federal court says that both the agency and union should have anticipated the problem but federal law does not provide a remedy. The controllers who got left of the arrangement out are out of luck.

Ten air traffic controllers were unsuccessful in their bid to convince first the U.S. Court of Federal Claims and now the Federal Circuit that they were short-changed by the Federal Aviation Administration when their jobs were converted in 1998 from the GS schedule to the new Air Traffic Controller (ATC) pay system.

In Brodowy, et al. v. United States, C.A.F.C. No. 2006-5113, 4/12/07, the court dismissed the case for failing to state a claim for which relief could be granted.

As explained in the decision, these controllers worked at “Level 1” towers, meaning they were serving at the least busy air traffic control towers and therefore were generally lower-graded than controllers working at higher level towers. In 1994 the agency began privatizing these Level 1 towers and offered the employees the option of transferring to a higher-level tower or leaving the agency. These 10 had elected to transfer. Had the transfer come about, they would have been converted to higher-graded GS positions and would have been guaranteed at least a two-step increase in the process, in accordance with regulations applying to GS-to-GS position promotions. (Opinion, p. 2)

Unfortunately for them, the contracting out process was stalled as the result of a challenge filed by NATCA (the National Air Traffic Controllers Association). This led to a delay in their conversion. Meanwhile, the new ATC pay system began to be implemented, but only at the level 2 through 5 towers. (p. 3)

In an apparent oversight, no arrangement was negotiated for those level 1 controllers who were still GS and had not yet been transferred to the higher-level towers when the new pay system came into effect. By the time these 10 plaintiffs’ were transferred, they were going into a different pay system. The GS-to-GS two-step increase requirement did not apply, and they were transferred at pretty much the same rate of pay. (pp. 3-4)

The court opined that the two-step guarantee applied only to GS-to-GS transfers, and, therefore, these plaintiffs are out of luck since they were transferring from GS to non-GS: “…at the time they actually received their promotions, their new positions fell outside the GS system. All of the appellants’ arguments to the contrary are conclusory; they offer no proof…” (p. 6)

Instead of blaming the agency alone for this result, the court’s decision points to both parties to the collective bargaining agreement, stating that they “should have anticipated” the problem. “…[T]he agreement did not provide a remedy for those employees and federal law does not provide a remedy, either.” (p. 6)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.