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Expedited Arbitration in Non-Disciplinary/Adverse Action Cases

Any time a grievance is contemplated by a member of one of NATCA’s bargaining units or by a facility representative on behalf of an individual or a group of employees, it is important to understand that the grievance could ultimately be put before a third party. The negotiated grievance procedure for each of NATCA’s bargaining units contemplates resolving matters through the arbitration process. There are three separate and distinct paths to arbitration in each one of NATCA’s collective bargaining agreements

First, a grievance can proceed naturally through the steps of the negotiated process. For example, where a grievance is submitted to an employee’s immediate supervisor and is then denied by the supervisor, the matter can be raised to the next level. If resolution does not come, the Union may then elevate the matter to the Regional level. Should the regional review fail to bring closure to the grievance, the Union may submit the matter to arbitration. Arbitration will then be scheduled through the negotiated process.

A second avenue available to employees subject to disciplinary or adverse actions involves expedited arbitration. In those cases, the typical process of filing a grievance and then elevating it from the local level to the regional level to national level (where arbitration is ultimately requested) is bypassed. In the case of disciplinary or adverse actions, the matter can be sent directly to expedited arbitration within 20 days of the effective date of the discipline or adverse action. Traditionally, the Union has used the date of the decision letter to as the date the clock starts running. If, however, you run into a problem with the timing of the request for arbitration, contact your RVP and Labor Relations Staff Representative to remedy the issue. Many of you who have been involved in such expedited requests have noticed the Union’s previous guidance related to the imposed work rules. While the 2003 Collective Bargaining Agreement does not require a local grievance for an expedited request, the Union has reached an understanding with the Agency concerning the drafting of a local grievance along with the request for arbitration. This merely ensures that there will be no confusion on the Agency’s part concerning the individual’s decision to pursue a grievance in lieu of the other statutorily-provided mechanisms.

Finally, matters that do not involve disciplinary or adverse actions are possibly eligible for expedited arbitration. All of NATCA’s Collective Bargaining Agreements that include this alternative  contain the following language:

In cases other than disciplinary/adverse actions, either Party at the national level may refer a particular issue to expedited arbitration in lieu of the normal arbitration process in this procedure.

This language, however, does not create a right to elevate a matter to expedited arbitration immediately upon the effective date of the alleged harm. Instead, this language provides the Union with the ability to utilize the expedited arbitration process which maintains the goal of scheduling a case within seven (7) days of the requested arbitration. (This avenue is particularly appealing to those who are working under the imposed work rules due to the greater success that the Union has had in scheduling expedited arbitration cases. The broad issue of the Agency’s efforts to obfuscate and undermine the grievance and arbitration processes is subject to a grievance that was arbitrated on June 30, 2008 — with briefs pending — and an unfair labor practice charge that is being investigated.) Ultimately, any attempt to expedite a non-disciplinary or adverse action grievance must involve the processing of the grievance through the standard grievance elevation process. The request for arbitration is the sole area where there is a divergence from the norm.

Unfortunately, the Union’s desire to expedite a non-disciplinary or adverse action case is not sufficient to make an individual grievance eligible for expedited arbitration. The Parties have agreed to elevating only a select group of such grievances to expedited arbitration.

Determinations as to whether expedited arbitration shall be utilized in cases other than disciplinary/adverse actions shall be based on the facts and circumstances of each case; however, only those grievances where the passage of time would preclude a remedy or result in irreparable harm are subject to this expedited procedure.

Before expedited arbitration of these non disciplinary/adverse action grievances can be deemed appropriate, the remedy must be reviewed. Several factors should be considered. It is important to note that there is not a set answer to whether or not the passage of time or the existence of irreparable harm requires expedited arbitration. One factor involves the difficulty of measuring the damages. If the remedy of money damages is considered inadequate due to the difficulty of proving how much revenue is lost due to the Agency’s actions, an expedited arbitration request could be appropriate. This rationale is not particularly applicable to a majority of our cases; the Union and the grievant will be able to calculate the damages done by the Agency when denying CIC pay, refusing to appropriately assign over time, or denying official time. Another factor involves the loss of evidence due to the passage of time. If arbitration is not completed immediately, will the Union and the grievant be unfairly disadvantage by the inability to prove what occurred? Generally, through requests for information and our own data sources, the Union is able to preserve the information. However, it is possible that the passage of time would cause some evidence to be destroyed. Another factor involves a change in situation. A perfect example of a change in situation resulting in irreparable harm involves the DOD school case. In that situation, there was a clear change in the educational opportunities for the children of FAA employees. The passage of time and the irreparable harm involved would make such a case ripe for expedited arbitration.

These factors are just examples of what must be weighed before deciding to take a non-discipline/adverse action matter to expedited arbitration. Since these matters must be elevated through the standard process, there is adequate time for discussion amongst all interested parties — facility representatives, Regional Vice Presidents, and the Labor Relations Department — to determine which type of arbitration will be requested.