Update on the Seniority Challenge
Friday, May 13, 2011
May 12, 2011 Update from the Office of General Counsel on the Seniority Challenge:
An Administrative Law Judge (ALJ) of the FLRA issued a decision on May 5 in the pending challenge to NATCA’s seniority policy. In a lengthy decision, the ALJ ultimately rendered the conclusion that “NATCA committed unfair labor practices when it retroactively altered the seniority date for bargaining unit employees who worked in management positions after June 6, 2006, but returned to the bargaining unit prior to the time the seniority policy in the NATCA Constitution was changed on September 12, 2008.”
Nine individuals who were adversely impacted by the seniority change – eight of whom returned to the bargaining unit prior to the September 2008 adoption of the change – had filed unfair labor practice charges against NATCA in the six months after the conclusion of the 2008 Convention. Subsequent to the filing of these charges, the regional director of the FLRA’s San Francisco office issued a complaint against NATCA in December 2009, and the parties – who waived holding a hearing because there were no issues of fact in dispute – submitted cross-motions for summary judgment on the legal issues in April 2010.
In a decision that was long on rhetoric and short on citation to applicable legal precedent, the ALJ chastised the FAA for abdicating its management responsibilities in the first place by negotiating a seniority provision that allows the union to unilaterally determine the method for calculating seniority. The ALJ also went on to effusively praise the free flow of bargaining unit employees in and out of management positions for “giving [the employee and the agency] an opportunity to see if the employee is capable of performing as a manager and likes supervisory work” and to characterize the pay scale unilaterally imposed on controllers by the FAA in 2006 as “more prescient than draconian” given the current federal pay freeze.
As a remedy, the ALJ recommended that only the seniority of the eight charging parties who returned to the unit prior to September 12, 2008 should be adjusted, and denied a request for financial make-whole relief on the grounds that determining such relief would be an exercise in speculation.
NATCA intends to file exceptions to the ALJ’s decision with the FLRA.
Click here to view the decision.