LR Corner
Sunday, April 24, 2011

NATCA Awarded $84,000 in Attorney Fees

NATCA just received a substantial award of attorney fees in a training failure/reassignment case. The arbitrator awarded NATCA $84,000 in fees and reimbursed expenses. The FAA had claimed that the fee award was not in the interest of justice, was a windfall and inappropriate gain for NATCA, and was otherwise prohibited by law. The arbitrator dismissed all three arguments. He found that under well-established MSPB precedent, an arbitrator has legal authority to provide a remedy for a prohibited personnel action and that such remedies include the award of attorney fees for a prevailing grievant. He also found that, due to the extensive violations of agency rules and regulations in the employee’s training, the agency’s actions were clearly unwarranted and that fees were justified. In addition, he found that the Labor Relations advocates’ hourly rates and hours spent were reasonable and, as a result, the entire fee that was requested was warranted. This represents a substantial victory for NATCA and one of the largest fee awards NATCA has obtained.

Grievance Resolved over Denial of Access to Regional Office to Perform Representational Duties
NATCA obtained a favorable settlement in the AIR bargaining unit in regards to ensuring that union representatives have access to the Regional Office to conduct union business. In the Ft. Worth Regional Office, the agency ordered the AIR union representative not to enter the Regional Office after normal business hours without first requesting approval from his manager. The union filed a grievance stating that the agency’s guidance violated the contract, which provides that union representatives may utilize agency computers and other office equipment in order to conduct union business. The grievance was scheduled for arbitration when the parties negotiated an agreement. The settlement agreement provides that union representatives are allowed unrestricted access to the building and are not required to notify the agency or request approval prior to entering the building after hours to conduct union business.  

Arbitrator Reduces Three-Day Suspension to LOR

NATCA received a favorable arbitration award in a three-day suspension case. The agency charged the grievant with careless work performance as an On-the-Job Training Instructor (OJTI), failure to carry out instructions given by a superior official, lack of candor, and misstating or providing false information on government records/documents. The controller was assigned as the primary OJTI for a trainee and completed the training reports after each session by highlighting the important training issues and using the training and the verbal debrief to discuss other less serious training issues. The agency charged the controller with careless work performance for not writing each and every “performance deficiency” by the trainee in the training report, even though the longstanding practice by all controllers at the facility was to write down only the most important training issues. The failure to follow instruction charge was based on the supervisor’s claim that he had told the controller not to write a training report for a skill check session where he was plugged in as the trainer, even though several witnesses heard the supervisor tell the grievant he could write a training report. The lack of candor charge was based on the grievant telling the agency during the investigation that he believed he had permission to complete the training report following the skill check session. The agency charged the grievant with providing false information in a government record because he amended the training reports by highlighting positive comments. The grievant amended the training reports to ensure that the supervisor had his input on the trainee’s progress before the next skill check when he would not be on duty.

The arbitrator credited the union’s evidence that the grievant followed the same general practice as the other OJTIs at the facility and that controllers were not expected to write down every mistake by a trainee during a training session. The arbitrator also agreed with the union’s argument that, if the grievant did not meet expectations regarding the manner in which he completed his training reports, the agency was required by the contract to treat this as a performance problem to be corrected in accordance with Article 20.

The arbitrator held that the grievant did not intentionally fail to carry out instructions and did not engage in lack of candor, based on the evidence that the grievant believed he was authorized to write a training report. The arbitrator also found that the agency failed to prove that the grievant intentionally provided false information when he amended the training reports to include his assessment of the trainee’s progress. While the arbitrator did not find that the agency proved the charge of providing false information in a government record, it was found that the grievant had overstepped his role as the OJTI and interfered with the supervisor’s authority to make decisions regarding the trainee’s training program, and the penalty was reduced to a Letter of Reprimand.

Arbitrator Denies Union Challenge that SCI Award Process Was Unfair

NATCA received an unfavorable decision in a contract interpretation case involving the Superior Contribution Increase (SCI) for an AIR bargaining unit employee. The union alleged that the agency violated its own guidance when it denied the grievant the SCI pay increase for the 2006 performance year. The union provided evidence that the agency arbitrarily denied the SCI pay increase even though the grievant exceeded expectations and received two cash awards for going above and beyond his duties as an aerospace engineer during the performance year. However, the arbitrator rejected the union’s claim that the agency failed to follow its own SCI guidance and denied the grievance. The arbitrator reasoned that the SCI awards are necessarily based on some degree of subjectivity and that the agency’s SCI decisions must be afforded deference unless the union can show that the process was not correctly followed or was unfair to the grievant. The arbitrator ultimately held that the union failed to show sufficient evidence of bias with regard to the agency’s decision not to award the SCI to the grievant.