LR Corner
Tuesday, February 15, 2011

Settlement on Remand from FLRA of 2004 ZJX Grievance Yields over 2,500 Hours of Time Off Awards for 185 ATCs

In April 2004, the agency unilaterally terminated a time off awards program at ZJX that had been negotiated and memorialized in an MOU. The MOU provided annual time off awards to ATCs who committed no operational errors or deviations each year. The union requested to bargain over the termination and submitted proposals, but the agency refused to engage in bargaining. The union then grieved the unilateral termination of the MOU as a violation of bargaining obligations contained within both the CBA and the Statute.

At arbitration, the agency prevailed, with Arbitrator James Conway finding that the agency had no contractual or statutory duty to bargain over the union’s proposals, as the issuance of time off awards equaled the establishment of performance standards and, as such, was substantively nonnegotiable as affecting a management right. The arbitrator also held that the proposals submitted by the union could not reasonably be regarded as procedures or appropriate arrangements, and thus, the agency had no obligation to bargain over them. Finally, he found that both the MOU, and the time off awards program itself, was inconsistent with the terms of the CBA, as it increased entitlements expressly contained within it, in violation of Article 7 and Article 102. Finally, the arbitrator found that the agency had properly established that its actions were necessary to the functioning of the agency and that operational necessity allowed it to not bargain over the issue.

The union filed exceptions with the FLRA over all aspects of the arbitrator’s award. The union argued that the award was contrary to law as the agency clearly failed to bargain in accordance with the Statute and Article 7; that the arbitrator failed to recognize that the agency’s mistaken belief that no duty to bargain existed did not negate the obligation to bargain; that the arbitrator erred in finding that the agency’s actions were necessary to the functioning of the agency; that as the agency failed to raise the “operational necessity’ argument, the arbitrator could not rely upon it in his decision; and that the award was contrary to public policy as the concept of providing incentive awards is embedded deeply within the U.S. Code and the CFRs.

In September 2010, the FLRA issued a Decision that found that the agency had indeed violated the Statute.  The FLRA disagreed with the arbitrator’s analysis that bargaining over the level of incentive pay was the equivalent of bargaining over performance standards. They agreed with the union’s argument that as the proposed MOU would reward the superior performance of assigned work and not establish a minimum standard of performance, the proposals did not affect management’s right to assign work and were, therefore, negotiable. The Authority then remanded the case back to the parties for resolution. On remand, the agency agreed to settle the grievance. The Settlement Agreement provided sixteen (16) hours of time off awards to all CPC ATCs who were working at ZJX during the two years in question. The 185 employees receiving the time off awards will have one year to use them. NATCA LR Attorney Peter Gimbrere handled the case for the union.