FLRA Finds Air Traffic Controller Union Breached Labor Law But Allows Future Violations

The FLRA writes that changing its constitution to “punish” controllers who leave its bargaining unit and return, was an unfair labor practice retroactively but not “prospectively.” The unions’ action was to “punish unit members who escaped the unconscionable terms and conditions unilaterally imposed by the FAA . . . by going to work for FAA management.”

I gave a recent Federal Labor Relations Authority (FLRA) decision a quick scan and thought, this is interesting: the FLRA actually took a union to task for breaching its duty of fair
representation. Then I thought, this has
got to be too good to be true so I read the case carefully. It turns out that the slap on the wrist was
less than a tap on the fingernail.

The decision appears constructed to be difficult to read and
follow but the story goes like this. Apparently the FAA negotiated a deal in which the union gets to maintain the
employee seniority record which, in turn, decides who gets overtime and in what

According to the record in the
case, the union changed its constitution to hold that any represented employee
who had “betrayed” the Air Traffic Controllers’ union by accepting a supervisor
or management position even temporarily lost his or her seniority if they
returned to the unit at a later time. To
add insult to injury, they applied the new constitutional provision
retroactively to the date of an issue that created a dispute between the union
and FAA. 

An amazing line of the decision reads:

argued that its “action in punishing bargaining[‑]unit members who escaped the unconscionable terms and conditions
unilaterally imposed by the FAA . . . by going to work for FAA
management . . . falls within the bounds of deference afforded unions
in exercising their duty of [fair] representation.”  Id. at 8. NATCA argued that its
constitutional amendment served two legitimate purposes:  (1) “discourag[ing] the actions of bargaining[‑]unit
members who sided with, and joined the ranks of FAA management”; and
(2) “encourag[ing] and reward[ing] Union solidarity among employees who
remained in the . . . bargaining unit.”  (My emphasis)

According to the Bureau of Labor Statistics, some of the” unconscionable terms and conditions
unilaterally imposed by the FAA” as recently as May 2010 were:

“Percentile wage
estimates for this occupation:”







Hourly Wage






Annual Wage 






See at: http://www.bls.gov/oes/current/oes532021.htm

So What’s the big deal?

According to the FLRA, it’s OK to punish people who take a job with
Agency management and return to the unit, you just can’t do it to those who
were affected in the time period between the dispute and the passage of the NATCA
constitutional amendment. In addition,
an unfair labor practice was dismissed by the judge in the case against
FAA. What is interesting is the General
Counsel’s (A former union GC) take on the matter. According to the decision:

 “The GC argues that the Judge erred
by finding that the FAA did not violate the Statute.  GC’s Exceptions at 12‑13.  The GC asserts that retroactively
stripping employees of years of seniority is an “obvious” violation of law, and
the FAA should have recognized it as such.  Id. at 13.  The GC further asserts that without
the FAA’s involvement, employees would not have been harmed by “NATCA’s clearly illegal scheme.” “
(My emphasis)

So if it was a clearly
illegal scheme retroactively, why wasn’t it clearly illegal prospectively.

The Result

Everybody involved in this looks sleazy. NATCA “punishes” Federal employees who take
an acting supervisor job because the union doesn’t like an Agency
decision. FAA enforces an agreement that
gave away not only the store but its cash register.  The FLRA General Counsel tries to pin some the
blame on FAA. The judge involved ducks
the responsibility for holding NATCA accountable and failing to recognize that
there’s supposed to be a difference between Jimmy Hoffa’s Teamsters and Federal
employees. Finally, FLRA didn’t step up
to the plate and put anything approaching integrity in play. Shame on all of you. 

The opinions expressed above are my responsibility. I hope somebody else out there sees a problem
in all this.

66 FLRA No. 90

About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.