Access Ensured for Employees’ Children to DOD Schools in Puerto Rico, Guam
Wednesday, September 14, 2011

By Peter F. Gimbrere, NATCA LR Attorney

After numerous years of ULPs, arbitration hearings, appeals, an IG investigation and settlement discussions, NATCA and the agency have finally resolved all aspects of the dispute between the parties that started in June 2004.

In 2007, an arbitrator determined that the FAA had improperly prevented the children of FAA employees located in Puerto Rico and Guam from attending the Department of Defense (DOD) schools. He ordered that the agency immediately allow the children access to the schools and that they reimburse parents for past and future private tuition expenses, until such time as the agency complies with the decision. After losing an appeal to the FLRA, the agency started allowing the children back into the DOD schools at the beginning of the 2011 school year. A final settlement memorandum was signed by the parties at the end of July 2011. It provided close to $500,000 to employees for their private educations expenses incurred over the intervening years when their children were denied access to the schools.

The issue dates all the way back to 2004. For many years, the employees of the FAA located in Puerto Rico and Guam utilized the authority given to the DOD by Congress to send their children to DOD run schools. In June 2004, however, coinciding with the announcement by DOD that the FAA would now have to reimburse the DOD for all costs associated with the access of children of FAA employees to the DOD schools, the FAA suddenly and unilaterally informed employees in both Puerto Rico and Guam that their children would no longer be eligible for certification to attend the DOD schools. NATCA grieved the unilateral change, and after years of procedural arguments, unfair labor practices and bargaining disputes, the issue finally was presented to an arbitrator for resolution in April 2007.

In his September 2007 decision, Arbitrator Shyam Das found that: 1) only the DOD defines eligibility for the DOD school system and the FAA does not have the authority to change, interpret, or apply the eligibility standard in any manner other than that mandated by the DOD; 2) Secretary of Transportation Norm Mineta and the FAA had both determined that the local schools in Puerto Rico and Guam were not appropriate for the dependents of FAA employees; 3) as all of the FAA employees in Puerto Rico and Guam are subject to transfer without their consent, they met the DOD eligibility requirements; and 4) the dependents of any FAA employees residing on military installations in Guam are eligible for DOD schooling on that basis alone (i.e. regardless of whether or not they are subject to transfer without their consent).

In his award, the arbitrator ordered the agency to; 1) withdraw the agency bulletin that attempted to redefine the DOD definition of eligibility for access to the DOD schools; 2) provide a new written statement that properly defines, in accordance with DOD regulations, the dependents of all FAA employees located in Puerto Rico and Guam as eligible to attend the DOD schools; and 3) reimburse FAA employees for any private educational expenses incurred from the date of the grievance and forward into the future until such time as the children are able to attend the schools.

The agency appealed the arbitrator’s award, arguing two main points: 1) that the award was contrary to law, rule and regulation; and 2) that the arbitrator exceeded his authority. On the first point, the agency argued that an employee’s eligibility for participation in the DOD schools constituted “compensation and benefits” over which the agency had full discretion via Title 49. The agency also asserted that the award was contrary to Title 49 as it required the agency to retract a policy that the agency had a right to issue by virtue of statutory authority. The agency also argued that, as an obligation to bargain was not at issue in the grievance (the grievance was solely about the violation and misapplication of DOD instruction and did not claim an Article 7 violation), the arbitrator had no authority to order the agency to rescind a personnel policy issued under agency authority. Therefore, the agency claimed, by effectively establishing agency policy, the arbitrator exceeded his authority in his award.

The union counter-appealed, arguing as follows: 1) the manner in which the agency framed the issued upon appeal specifically limited the agency’s appeal argument to the sole issue of whether or not the arbitrator exceeded his authority; 2) the agency was barred from raising on appeal the argument that the arbitrator’s remedy was contrary to law, rule or regulation; 3) in the alternative, the award is not contrary to law, rule or regulation because the remedy did not implicate the bargaining and mediation provisions of Title 49 as alleged by the agency; 4) the award does not preclude the agency from issuing policy, but merely requires the agency to revise its policy to conform to the controlling DOD Instruction; and 5) the agency cannot claim that the arbitrator exceeded his authority or did not have jurisdiction over the issue when the agency failed to even appeal the arbitrator’s underlying findings on the merits (they only appealed the remedy) and allowed the issue to proceed to hearing in the first place.

In a unanimous ruling issued in January 2010, the FLRA denied all aspects of the agency’s appeal and upheld the arbitrator’s award in full. The FLRA agreed with the union’s arguments that the agency was precluded from raising on appeal the claim that Title 49 limited the arbitrator’s authority in any manner; that any argument that Title 49, and not the DOD Instruction, controlled the resolution of the grievance could have, and should have, been presented to the arbitrator during or prior to the hearing; that the agency was barred from raising that claim for the first time in their appeal to the FLRA; and that the arbitrator did not exceed his authority by rescinding the agency policy since the agency was on clear notice that the relief sought by the union included an order that the agency withdraw the policy, but there was no evidence in the record that the agency ever argued to the arbitrator that awarding such relief would violate Title 49.

Based on this clear and unambiguous ruling, the union began discussions with the agency over the implementation of the arbitrator’s award. The agency ultimately re-instated access to the DOD schools in Puerto Rico and Guam in time for the 2010-2011 school year. The negotiations over the reimbursements ordered by the arbitrator took longer but were finally resolved this past July. All of the children of bargaining unit employees located in Puerto Rico and Guam are now assured access to the DOD schools in accordance with DOD policy: FAA no longer applies policies that are inconsistent with what DOD allows.

The fact that NATCA prevailed on this issue was due to the perseverance of many different players. The employees in Puerto Rico and Guam were diligent and passionate in making sure that NATCA knew what was going on at all times. A number of them participated in the arbitration hearing held in Washington, D.C., back in 2006, attending physically or by phone. One of them, Edgar Diaz, even brought up his young son to testify as to the impact of the loss of access to the school. As Edgar tells it, his son has now returned to the DOD school in Puerto Rico “thanks to the dedication from all of the NATCA brothers and sisters involved in this fight.” The union facility reps in Puerto Rico were significant contributors to the success of the litigation. Enrique Tamargo maintained an open line of communication between Puerto Rico and Washington, D.C. Jerry Nash was instrumental in ensuring that the National Office advocate had all of the information necessary to win at the hearing. He also participated as second chair during the hearing itself, guiding Edgar’s son through his testimony. Jerry's wife, Elena, ensured that the NATCA litigation team had all the right documentation to present to the arbitrator. Bob Hoffman spent countless hours of his time documenting the Guam side of the story. The agency advocates admitted after the fact that they were unprepared for the level of intensity, passion and thoroughness that the NATCA team brought to the hearing room.

The lessons from this litigation saga are numerous, but can be boiled down to a few words that personify what NATCA is all about: teamwork, passion and perseverance. Jerry captured it well: “NATCA at every level, through several executive boards and regional vice presidents, never wavered in their efforts to overturn the FAA’s callous cost-saving policy.” NATCA has a right to be satisfied with this victory. Shared Enrique: "Of all my achievements while working for the FAA, winning that grievance was the one the gives me the most pride."