FEDERAL MEDIATION AND CONCILIATION SERVICE
WASHINGTON, D.C.
IN THE MATTER OF THE ARBITRATION BETWEEN
FEDERAL AVIATION AGENCY
AND
NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS

ADVISORY OPINION AND AWARD

BOARD OF ARBITRATION
C. RICHARD BARNES, CHAIR
THOMAS O'BRIEN
JACK CLARKE

APPEARANCES FOR THE PARTIES

UNION

Arthur L. Fox, II, Esq., Label, Novins & Lament, Washington, D.C.
Walter W. Pike, President, NAATS
David S. Hoover :
Michael Stafford

AGENCY
Anthony Herman, Esq., Covington & Burling
Chad Tang, Esq., Covington & Burling
Raymond B. Thoman, Deputy Assistant Administrator for Labor & Employee Relations
Leo Stoltz

PROCEDURAL HISTORY

The Federal Aviation Agency is hereinafter referred to as "Agency". The National Association of Air Traffic Specialists is hereinafter referred to as "Union".
The Department of Transportation and Related Agencies and Appropriations Act of 1996, Pub. L. No. 104-50, codified as 49 U.S.C. � 106 Note, and 49 U.S.C. � 40122 authorize the Agency and Union to bargain over wages to be paid to employees of the Agency represented by the Union. The Agency and Union negotiated regarding wages and other issues with the assistance of the Federal Mediation and Conciliation Service (FMCS). In a meeting, representatives of the Agency and Union agreed that they would arbitrate the issue of  wage rates before a Board of Arbitration (hereinafter "Board") on an advisory, non-binding basis. The parties agreed that the following would serve on the Board: C. Richard Barnes, then Director of the FMCS, Chair; Thomas O'Brien, FMCS Deputy Director (Retired); and a third member to be appointed by Director Barnes subject to the approval of the parties. Director Barnes appointed Jack Clarke as the third member. The parties further agreed that the arbitration would begin only if they had resolved all issues other than wages on or before July 15, 2002. The Agency and Union agreed that the Board would apply "baseball" arbitration procedures, that is, the Board is authorized to recommend adoption of either the Agency's or the Union's last offer but is not authorized to make any other recommendation.

An arbitration hearing was held in the headquarters of the FMCS in Washington, D.C. on July 30, 2002. During the course of the hearing both parties were afforded full opportunity for the presentation of evidence and oral argument. The Agency's and Union's final offers, submitted to the Board, appear as Appendices A and B to this Opinion and Award, respectively.

The parties elected to file post-hearing briefs. The Board received timely filed briefs from both parties

DISCUSSION

The issue that the Agency and Union have asked this Board to advise relates to the proper pay for members of the bargaining unit. However, as indicated in the Procedural History, the parties have limited the Board to one of two responses, that is, recommendation of either -the Agency's or the Union's last offer. For the reasons set out below, this Board, as an instrumentality of the FMCS, does not recommend either of those proposals.

The procedures under which the Agency and Union agreed to arbitrate the pay rates for members of the bargaining unit included a provision whereby the arbitration would proceed only if the parties had agreed to all the terms of the collective bargaining agreement other than wage rates. Recommendation and adoption of the Agency's wage proposal would undo issues that the parties have already agreed upon. Moreover, adoption of the Agency's last offer would result in execution of a collective bargaining agreement wherein the benefits to which covered employees would be entitled will be unclear at best. The Agency's last offer provides, among other things, that if the parties are unable to agree on "offsets", "the offsets will come from the elimination of holiday premium pay .., savings from a reduction in the hours of operation at certain flight service facilities, or such other sources as determined by the Agency." It is likely that adoption of this language would undo an agreement already reached regarding holiday premium pay and thereby violate the arbitration procedures noted above. It is certain that adoption of this proposal would result in a collective bargaining agreement wherein benefits would be unclear for some time and would be subject to unilateral amendment by the Agency for an indefinite period. Such an agreement flies in the face of decades of history of collective bargaining in the Federal sector and does not serve the public interest. Finally, the Agency's last offer is silent regarding retroactivity. Non-payment of retroactivity is inconsistent with the commitment the Agency made to the Union in the letter from Anthony Herman, Esq., counsel for the Agency, to Walter W, Pike, Union President, dated July 8, 1999. That letter provides in pertinent part:

If any pay adjustment is agreed to by the parties in addition to the government-wide increases, such pay adjustment will be made effective retroactive to the first pay period beginning on or after October 1,1999.

The Union's last offer "proposes that its 2,185 bargaining unit employees in Flight Service should continue, as in the past, to earn wages that are comparable to the wages earned by other Air Traffic Controllers with comparable responsibilities and skill levels." Other evidence presented lo the Board shows that the Union's last offer is based on "linkage" to the wage rate provided for ATC level 6 Air Traffic Controllers under the collective bargaining agreement between the Agency and the National Air Traffic Controllers Association (NATCA), Thus the Union's proposal calls for raising "the salaries of all Flight Service personnel in its bargaining unit by 13.2 percent as follows: 4.2 percent, effective 10/1/99; 4.9 percent, effective 10/1/00; and 4,1 percent, effective 10/1/01." The Union's proposal is based on a foundation that is not supported by the evidence presented to the Board, that is, that the wages of Air Traffic Controllers covered by the FAA/NATCA agreement and members of the bargaining unit represented by the Union should be coupled. The Union is correct that employees represented by it had been paid at a rate identical to that paid GS-12 Air Traffic Controllers represented by NATCA for a number of years. But the fact is that GS wage rates no longer apply to Air Traffic Controllers represented by NATCA. Moreover, not all former GS-12 Air Traffic Controllers represented by NATCA are paid the same wage rate under the FAA/NATCA agreement. Rather, their wage rates are based on the work assigned. In addition, adoption of the Union's proposal for linkage would produce the anomalous result that NATCA would negotiate wage rates for members of the bargaining unit represented by the Union. 

ADVISORY AWARD

For the reasons stated above the Board of Arbitration declines to recommend adoption of either the Agency's or the Union's last offer.

The FMCS remains available to assist the parties.
Dated: September 5, 2002

C. Richard Barnes
Deputy Director, FMCS
Thomas 0'Brien
Deputy Director, FMCS (Retired)/Arbitrator