Thursday, September 23, 2010
Arbitrator Rules in Favor of NATCA and Orders FAA to Rescind CIC Policy and Bargain
In January 2010, the Federal Aviation Administration released a memorandum to one of its facility personnel regarding a new policy affecting the roles and responsibilities of the Controller in Charge (CIC). In sum, the CIC policy guidance issued by the agency violated the CBA on several distinct grounds by implementing changes that were more restrictive than provided by the CBA, and contravened the agency’s own orders and regulations. Although the agency notified the facility personnel of this new policy on January 4, 2010, it went into effect only 15 days later without providing the union with the appropriate notice or the option to bargain over any portion of the new policy. The union filed a grievance over the agency’s unilateral implementation of the policy and over its violation of Article 7 and Article 18 of the CBA and had the issue heard before an impartial arbitrator.
During the hearing the union argued that the CIC memo significantly impacted the duties of the CIC in several areas including the approval of sick leave, annual leave, shift changes, facility absence, and exchange of shifts, overtime and excused absence. The agency contended that the January 2010 memo implementing the controller-in-charge guidance enhanced and clarified the delegation of management authority to the CIC, and that the express words of Article 18 specifically excluded the agency’s obligation to negotiate the implementation of the CIC guidance. In other words, the agency’s right to issue CIC guidance is covered under Article 18, Section 2 of the CBA, and as such no bargaining is required. The agency also contended that the implementation of the CIC guidance was not more than de minimis, and therefore, under FLRA precedent, the agency was not obligated to negotiate.
As a result of the hearing, the arbitrator found that the FAA had a contractual obligation to enter into negotiations with NATCA and that there was a change in the working conditions of employees, personnel practices and/or policies that were more than de minimis in effect. The arbitrator based his decision not only on the plain meaning of the CBA but on the testimony of various witnesses who asserted that, before the January 2010 policy guidance was initiated, the CICs operated with very minimal restriction. After the execution of the policy guidance, however, the CICs had various limitations placed on their authority to carry out watch supervision duties. One witness also testified that the new guidance also violated the FAA national order by hindering the CIC from functionally managing the staff allocated to him or her. The arbitrator found these various witnesses credible, and also relied on the fact that CICs handle watch supervision at the facility in question in a greater capacity than management, and as such the agency’s argument that the change is minimal without merit. As a result, the arbitrator ordered that the FAA rescind the policy and that it engage the union in impact and implementation bargaining.