TAU Comments and Questions
from NAATS Bargaining Unit Employees
Answered by Wally Pike and Mike Doring. References will be made to the FLRA (Federal Labor Relations Authority) the entity that administers the public sector labor relations program. We will also use the term "red book" for our existing contract. Questions are reproduced exactly as we received them. Although we very much appreciate the positive comments we have received on the TAUs, we have not included them in this article. Our goal here is to address only questions and critical comments received by the membership. Questions and comments are in normal type and answers are in italics.
General: Is it true that NAATS and the FAA have not agreed on the rationale of the Articles, so that NAATS may have one interpretation and the Agency another?
We've approached the FAA on numerous occasions to do a joint union/management rationale on the interpretations and meaning of the negotiated articles to avoid future discrepancies and fights over the negotiated language. The FAA's response has consistently been that they have no interest in having any involvement in such a product with NAATS.
The benefit of a joint rationale to avoid misunderstandings is obvious but it takes both Parties. Since the FAA won't agree to a joint product we'll do our own.
TAU 2, Article 2, Purpose and Objectives: The language in Article 1 of the old contract is stronger. The old language recognizes (and reminds management) that there is a statutory and practical basis for union activity and why that activity is advantageous for all involved – both for management and the bargaining unit. The old Sections 1-01 and 1-02 are especially useful, and should be retained. It seems like a good idea to have the FAA sign off on something that says union activity is mutually beneficial.
We made a decision early on that we were not going to reflect language in the contract that didn't establish any new entitlements. By not including statutory language we don't waive any rights and our contract is not weaker.
TAU 5, Article 5, Seniority: While it is advantageous to exclude management the right to determine seniority in conjunction with the Union, it is unclear whether seniority will be determined at the national or local level. If seniority is determined at the local level, a FacRep could devise a system beneficial to him or her. Other than filing a "misconduct" charge against a FacRep, how will the Union ensure that the FacRep’s remain impartial?
That is one of our major gains in this contract. Currently each facility can establish its own seniority dependent on its needs and desires. The TAU lets NAATS determine the seniority at whatever level the membership determines appropriate. As for the possibility of FacRep’s acting against the wishes of their membership, that matter can and should be addressed through the procedures in our Bylaws.
TAU 7, Article 43, Child Care: Regional Offices have established day-care facilities to assist their employees. Did the parties look at the GSA eligibility requirements to determine the feasibility of establishing childcare at our facilities or in the neighboring community?
Yes, AK Regional Director Mark Boberick was involved in research in this area. The FAA was unwilling to commit in this contract to establishing childcare facilities in these locations. There are alternative means, however, to achieve these if we can justify their existence.
TAU 8, Article 31, Dues Withholding: Section 5 discusses submission of SF-1188’s to employee’s "representatives at the facility." People reading this language are led to think that "representatives" means union representatives. That is contrary to the MOU in place now, which I believe says 1188’s are handled by management.
The current red book language was determined to be illegal by the FLRA. The processing of 1188's by our FacRep’s was considered coercive and we were ordered to change the language. The mechanism we used to change this language was the memorandum of agreement (MOU) mentioned. Management, not the FacRep, must now process SF1188’s.
TAU 16, Article #, Parking: Section 3 indicates that outdoor plug-ins shall be activated at –20F. The old language has 0F, which is more reasonable. Why the change? It should be changed back to 0F. Why was the language from the old Article 58, Section 58-08, dropped? I have had to use this section many times to get management to clear the parking lots and sidewalks at more than one station. We need this section for leverage.
We believe you misread the TAU. It actually calls for the outdoor plug-ins to be active at 20F (not -20F). Therefore this should represent a benefit to you.
In TAU 111, Occupational Safety and Health, management's obligation is still to make every reasonable effort to clear parking lots and sidewalks of snow and ice as well as maintain safe working conditions.
TAU 18, Article #, Dress Code: Why the additional statement that attire "will not erode public confidence in the professionalism of the air traffic controller workforce?" There is concern that management’s perception of what erodes public confidence will differ dramatically from the FacRep’s, resulting in a stricter dress code.
This language is no more restrictive than that currently in the red book. In fact, it can be argued that it is stronger since the old language said the Parties would jointly "develop" the community standards and negotiate the procedures. New language now requires substance negotiation on all aspects of the dress code.
TAU 21, Memorandum of Agreement for "Covered By" Issues and Workgroups: While the introduction of workgroups to bargain on the behalf of the union is beneficial, staffing and overtime issues continue to restrict facilities from participation. In addition, it might have been beneficial to specifically address non-CONUS locations, as NATCA did in its Temporary Duty Travel article, since the Agency is unwilling to provide overtime and/or compensatory time for travel in excess of the established travel day of 8 hours.
As we understand this question it has to do with staffing at your facility. That issue can be addressed under TAU 116 Staffing. It can also be addressed by using the Consolidated Placement Program (CPP) MOU. The second part of your question is addressed through the Travel Policy MOU dated February 4, 1999.
TAU 23, Article 4, Union Representation and Official Time for Representational Duties: What was the intent of indicating that the Union may limit the scope of authority and/or define the duties and responsibilities of an Alternate FacRep? Either we have confidence in those appointed (or voted in) as Alternate FacRep’s, or we don’t have an Alternate FacRep position.
The intent is to ensure that the Parties (both NAATS and management) are authorized to bargain the issues being discussed. The FacRep is the primary point of contact for NAATS at the facility level. If he/she decides to limit the authority of any alternate FacRep he/she has that right. Nothing, however, requires the FacRep to limit any alternate FacRep’s authority to speak for NAATS; it is merely available to him/her if he/she so decides.
By allowing a facility manager to contact the Regional Coordinator or Director in the event that the facility FacRep’s are not available, aren’t we setting ourselves up for a ULP when a local issue is bargained regionally?
No. The Union has a chain of command that is to be followed as well as management.
Why wasn’t official time given to HubRep’s? HubRep’s and principle facility FacRep’s are not necessarily the same. Is the intent that HubRep hours shall be obtained from FacRep hours, or Director hours?
The fact is that there are very few HubRep’s. Where HubRep’s are in need of official time it is the Regional Director's responsibility to delegate the time as needed in accordance with the provisions of this TAU.
The language in Section 9 seems inferior to the old Article 4, Section 9. The old language said that representatives "shall be granted excused absence for 2 workdays" on briefings, orientations, etc. The new language replaces "shall" with "may" and "2 workdays" with "16 hours." What if the Union Representative is working an AWS? The new language also drops the last sentence in the old language about "every reasonable effort shall be made to allow these representatives to attend this training." Isn’t this the section we use to enable FacRep’s to attend the national members’ meeting? It seems like the new language gets us nothing and loses what we already have. The language leaves it completely up to management’s whim as to whether the time will be available.
In this case the "may/shall" language is not the important issue. Both the current contract and the TAU contain identical procedural language for releasing representatives for the specific training ("Determinations as to whether an individual can be spared from duty shall be made by the Employer, based solely on operational requirements.") Nothing in that procedure has changed.
Your second question does constitute a change however you neglected to mention anything about the new training contained in Section 12 which represents a significant gain in overall training hours. Please note – this additional time is not subject to the procedure previously discussed.
Your third question is addressed by the procedure we discussed in the first paragraph. There is no significant difference.
Section 14 is unclear. What is the parcel of time for?
This time is authorized for national union officers in addition to any other time specified in this article.
The language in Section 15 gives Regional Directors 80 hours per pay period of official time. This looks like they no longer will have to work on position. Is this true? If so, this could be bad for the union--if for no other reason than that the Directors will become even more isolated from operations and disconnected from the people that they are supposed to represent.
All of the Article should be read to understand its intent. In Section 15 (e) Regional Directors may, at their discretion, delegate such official time as they deem necessary for the operation of the union in their region.
TAU 24, Article #, Workgroups, Committees, Program, and Project Representatives: See comments under TAU 21.
Previously answered.
TAU 25, Article 55, Use of Official Government Telephone Lines: Why has the requirement for reasonable access to unrecorded telephones been omitted?
Our language reflects the government-wide regulation concerning use of government telephone lines. This is not negotiable to unions. However, if your facility currently has unrecorded line(s) then your FacRep is free to negotiate their use by bargaining unit members. This should have the same net effect as the red book language that stated unrecorded lines, if they already existed, could be used by unit members.
TAU 26, Article 9, Use of Employer Provided Facilities, Publications & Services: The old language in Article 13 said that the Union shall be given space for bulletin boards, even at facilities that have no union members in the bargaining unit. This was left out in the new language. Why?
The TAU states, "The Employer shall provide a separate bulletin board for posting of union materials at all Air Traffic Facilities within the unit in areas frequented by bargaining unit employees." This means that regardless of whether they are union members or not we still get bulletin board space. Bargaining unit members are all employees represented by NAATS, not just union members.
The old language prohibited the employer from removing material. The new language includes an exception that allows management to remove materials under "compelling need." What is "compelling need"? Who determines if a "compelling need" exists? What if the parties disagree as to what constitutes a "compelling need"?
Unions cannot restrict management from removing unlawful, scurrilous and/or inflammatory material from bulletin boards. Compelling need is defined by the FLRA as irreparably impacting mission accomplishment (agency mission cannot be accomplished without this action). We’ve never seen compelling need demonstrated by any agency. Compelling need is the highest standard used by the FLRA.
The new language implies that the Employer may post material on the Union board if there is a "compelling need." Why should the Employer be allowed to post items on the Union board? They have their own bulletin boards. The old language made it clear that the employer kept his/her hands off the Union board.
Same answer as above. We don’t anticipate any occurrences of this happening without the FacRep’s permission.
The language in Section 4 should be stronger to decrease the likelihood of the employer arbitrarily (or even worse, in retribution) taking away offices or other space from the union.
This is the same language as the red book. We can’t force management to give us this space regardless of operational needs. However, if they do withdraw from these arrangements they still have to bargain with NAATS, including replacement space when it becomes available.
The language in Section 9 prohibits Union binders from being read on operational positions. Union binders should be treated as any other official material and be allowed. This section should be deleted. Why is this in there? At our facility, no one has had a problem with reading union materials on position. Now there will be a prohibition in the contract.
These NAATS binders will contain internal union publications, documents, positions, etc. The compromise is to allow internal union materials for membership use. Please note – this does not include our contract, which is an official agency document and can be read on position.
According to Mike Doring at the October NAATS convention, FacRep’s can grieve the prohibition to reading Union binders on position under "past practice." Why would the Union put its FacRep’s in the position of having to grieve for a practice that some already enjoy?
It is impossible to know what all the arrangements are at all of our facilities. This was an attempt to educate FacRep’s on past practice requirements as they relate to bargaining. It is a FacRep’s job to grieve benefits when they are changed without the required bargaining.
TAU 30, Employer Article 13, Union Article 64, Disciplinary and Adverse Actions: I saw Wally’s comments in the Headquarters E-mail Update that "shall" and "will" are synonymous in the contract. Maybe so, but what about "should"? How much weight does "should" carry? In Section 2, all "should’s" would be better replaced by "shall." "Should" is a recommendation only and is not binding. It would be better if sentences read "consideration shall be given to the application of measures, which, while not disciplinary, will instruct the offending…." and " …..informal disciplinary measures shall be considered before taking a more severe action." This change is reasonable, besides being a better practice for all concerned.
No question, it would be great if we could restrict management in their right to take discipline by negotiating how and when they take discipline. We cannot, however, keep management from taking disciplinary actions. For purposes of this contract, "shall" and "will," mean the same thing. "Should" means the action is recommended but not mandatory. Alternative disciplinary procedures, by definition, are not mandatory.
Article 64, Section 64-08, of the old language has been left out. Why? There are some good protections there, preventing the Employer from dragging in irrelevant actions. It seems like those protections should be put back in. Also, there is nothing like the old language from Section 64-04a and 64-04b detailing certain rights. Why? It seems like a big omission.
FLRA has determined that any restriction on past adverse actions is nonnegotiable. Therefore, we had to drop that Section because of the change in case law.
TAU 37, Article #, Excused Absences: What happened to the old language of Article 24, Section 25-08, concerning military reserve time?
That issue was pending and has been resolved by inserting language in the revised TAU 37.
TAU 43, Article 25, Leave for Special Circumstances: Why were grandparents (and grandparents-in-law) omitted from the definition of an employee's family?
We covered those relationships in Section 4.
Why were credit hours omitted as an option for leave under special circumstances?
The language was taken directly from the FMLA/FEFFLP guidance.
In Section 9 "paid leave" is not defined. Is it excused leave, or does a specialist have to take annual and/or sick leave?
Paid leave is any leave the employee takes and receives his/her compensation.
TAU 48, Article #, Employee Rights and Obligations: The phrase "to the maximum extent possible" should be removed from the last sentence of Section 7. Privacy during formal counseling sessions should be absolute.
We would agree with you but, unfortunately, absolute privacy can’t always be guaranteed. One example is the small facilities in the Alaskan Region. The best we could do was the phrase, which means that if it can be done it must be done.
The last sentence in Article 5, Section 5-01, of the old contract should be reinstated somewhere. This sentence describes in black and white what the FAA’s responsibility is in this area.
Again, restating statutory entitlements does not bestow any additional protections for our bargaining unit. All the provisions of that sentence still apply.
TAU 53, Article 17, Operational Error/Deviation Investigation, Reporting and Review Board: Section 1 says an employee "may" have representation if the employee requests it during an interview with a management official. However, Section 2a says at the "initial evaluation" union representation is not "required." This language seems contradictory and confusing in an area that should be explicit. This allows management to go on a fishing expedition without union representation for the employee. It seems like all they have to do is declare the meeting an "initial evaluation." There is no reason the union representative should be excluded in these situations.
According to the FLRA, employees are not entitled to union representation at performance meetings. The new language can be considered a gain. There is no contradiction.
TAU 55, Article 18, Critical Incident Stress Management (CISM): Why does the Employer determine the need to send out a CISD team instead of the team itself?
It's a management right, assignment of work.
TAU 56, Article XX, Traffic Management Program (TMP): Section 2 should be replaced with "shall." Call re-routing is bad enough without also re-routing to stations that are not even adjacent. This is a potentially dangerous situation.
We agree, however, management cannot be precluded from offloading these calls in every instance and under all circumstances.
TAU 58, Article 10, Regional Quarterly Meetings: The last sentence in Section 1 places a limitation on union representatives from attending regional quarterly meetings and makes the article weaker than the old Article 10. That sentence should be removed.
Attendees at these meetings were always subject to operational requirements. There is no change in application.
TAU 61, New Article XX, Reductions in Force: There were several protections in the old language that are no longer in the new language. Why were they dropped?
The FAA must negotiate with us before they take any RIF action in our unit. If and when that occurs we will aggressively address our unit needs based on the circumstances at that time.
TAU 62, Article 29, Working Hours: More time should have been allotted for the closure of a facility. Experience in the Alaska Region indicates that fifteen minutes of FLSA overtime is not enough overtime to close facilities, particularly those that are staffed with one specialist per shift.
This was not identified by the contract team as an issue in any region.
TAU 63, Article XX, Watch Schedules: Section 3 should allow the parties at the local level the provision to use different time periods for posting the basic watch schedule if they want, as is done in Section 4. Why specify a year if local requirements or practices are different and the local Parties can come to an agreement?
This is no change from the red book. It was not identified as an issue in any region. It should be noted that the beginning and ending of the one-year posting is not specifically identified and therefore negotiable.
Section 5 seems very confusing. It first states that changes to an employee’s assignment shall not be made to avoid the payment of overtime. Then it allows management to do just that. All the employer has to do is declare that he/she was not going to call in overtime anyway. Then, using option 5a, all the employer has to do is find some compliant soul to ‘volunteer’ to change his/her shift. This will have the effect of beating people out of the opportunity for overtime. On top of that, the last paragraph of Section 5 explicitly says that management can change an employee’s shift with less than 7 days notice. All management has to do is declare that the other alternatives were exhausted. Management will never have to call in overtime based on the way this article is written. I see this new language as a source of confusion and strife at the local level.
It is a management right to determine when overtime is to be used and to assign it. Past arbitration rulings have held that almost all changes are made to avoid the payment of overtime therefore changes with less than 7 days would be considered as violations of this Section. The options you identify in 5a are to avoid changes in the employee's watch schedule and are therefore desirable. Management has the obligation to prove it has exhausted all the alternatives listed prior to changing the employee’s watch. The procedures outlined in this Section are a gain in protecting watch schedules and assigned overtime, not a loss.
TAU 66, Article 47, Position Descriptions: The Agency is already using "shadow" positions to supplement administrative staffing at the expense of operations. The primary duties of a bargaining unit employee should have been identified, to avoid the assignment of projects not related to the PD.
We disagree. Position descriptions are non-negotiable on substance. Section 4 specifically states, "Assigned duties must have a reasonable relationship to the employee’s official position description." In addition Section 4 of this Article restricts the assignment of certain duties to bargaining unit personnel. Assignment of work is a management right, we did the best we could and still stay legal.
TAU 67, Article 44, Official Records: In Section 4, who decides if a letter of reprimand is no longer warranted, therefore allowing the letter to be removed 1 year early? What would the mechanism be for this? Can the employee petition for its removal?
Either NAATS or the employee can ask that the letter be removed early but it is a management determination.
TAU 68, Article 56, Liaison and Familiarization Training: This article does not address Familiarization Training for personnel at FSS facilities who are being denied that training on the basis of staffing. Were small facilities considered in the implementation of this program?
Yes. If staffing is preventing this training then local/regional negotiations should be initiated to alleviate this problem. One mechanism that can be used in these negotiations is the CPP MOU.
TAU 69, New Article XXX, Facility Evaluations: The new language would be better if union involvement were mandated, if the union so desires, rather than using the word "may."
We believe you have misread the TAU. The "may" applies to NAATS’ discretion in appointing this member.
TAU 74, Article 117, Duration: If the deficiencies noted in the new language are not corrected, 5 years is a long time to live with this thing. Also, the last section shares a problem with the old contract. The last two sentences contradict each other. The second to last sentence says that this agreement shall remain in full force and effect until a new agreement is reached. However, the next sentence states that any Government-wide regulations issued during the term of the agreement will take precedence over the Agreement. That is contradictory, and it will no doubt cause problems if there is a delay with the next agreement. If I were representing the Agency, I might be tempted to drag my feet on negotiating a new agreement if I thought I could abrogate whole sections of the old in the meantime. What exactly is the effect of the last sentence of this TAU?
The other point of view is that this Agreement is superior to the red book and there isn't justification to spend the time and resources to renegotiate it so soon. It should be noted that the red book is now approaching 7 years in use.
This agreement remains in effect until we negotiate another unless it conflicts with government-wide regulations or the law of the land. Government-wide regulations and the law always have precedence over any negotiated labor agreement if they are in conflict. This agreement does, however, take precedence over any FAA regulations in the event of a conflict.
TAU 79, Article 61, Return Rights from Overseas Locations: Why were mandatory times established for subsequent tours?
This was an addition to existing language. Members desired that tour lengths be standardized.
TAU 82, Part-Time Employment: Will a part-time employee be counted as ½ of a specialist whereby giving another person the opportunity to also go part-time? Would the two individuals be counted as one person? Our manager might try to stop our part-time employee from continuing to work part-time, claiming a shortage of personnel.
The answer to both questions is "yes."
TAU 83, Article 93, Flight Service Option Career Strategies: Is developing a national program to obtain new hires from colleges (as NATCA currently does) the intent of this article?
Yes, that is one of the aspects of this Article. The parties will develop other options jointly.
TAU 84, Article 65, Representation Rights: The language in Article 2, Section 2, of the old contract is preferred over the language found in the new Section 4. The old language requires management to follow certain steps during a disciplinary action. If those steps are not followed, no disciplinary action can be taken. The new language puts the burden of proof on the individual and the union to show that there was harmful error before it can be determined that a disciplinary action might not be sustained. This in effect takes the motivation away from management to follow the rules. This situation is analogous to police officers having to read a suspect their Miranda rights. This is a big oversight and must be corrected. There have been many instances where management stumbled over this and was forced to rescind a disciplinary action. It seems like the union should not agree to language that lessens management’s accountability to do the correct thing in something as important as disciplinary actions. The language in the old Section 2 was extremely valuable in keeping management’s actions on the up and up. What am I missing?
FLRA case law changed slightly. A determination of harmful error must be made in any adverse action where it's claimed. Once harmful error is proven the disciplinary action cannot be sustained regardless of the merits (See TAU 30 Disciplinary and Adverse Actions and red book Article 64-02). The intent of the language has not changed.
TAU 87, Article XX, Grievance Procedure: What form is used for the written request to an informal resolution to a grievance? Does the FacRep use the grievance form itself and annotate "informal resolution"? We do not believe that the addition of an informal resolution stage to the grievance process will benefit the Union. It seems like a waste of time. Why was the amount of time for submitting a formal grievance, and responding to one, reduced from 30 calendar days to 20 calendar days?
There is no specific form identified at the informal stage, the significant point is that these matters must be documented to verify date, time and subject of the grievance. This is for our benefit in tracking these violations. The informal resolution stage is no change from the red book. The time frames were reduced in order to expedite grievance resolution.
TAU 93, Article 30, Alternative Work Schedules: The language in Section 2 raises several questions. Who makes the judgment that an AWS is causing an adverse impact? Who makes the judgment that an adverse impact outweighs the positive aspects? What are the factors to be considered and who decides what those factors should be? Does the new language give management free reign in this? It looks like this new language will start a battle at every facility that has an AWS. We know the agency wants to stop AWS.
Ultimately the Federal Service Impasses Panel (FSIP) makes this determination if the parties can't agree. The new language actually strengthens our position on AWS by requiring the Agency to prove adverse impact.
The language in Section 12 puts a restriction on people moving from an AWS to 8-hour shifts. What is the point of this restriction? It is usually beneficial to the watch schedule to have someone move from an AWS to 8-hour shifts. This should be decided at the local level.
Section 12 states the desirability of maintaining the watch schedule in tact until it is to be renegotiated. The goal is to reduce the disruptions of moving employees into and out of AWS during mid-term. Bottom line is that AWS is voluntary for employees.
TAU 94, Article XX, Overtime: The addition of the new language in Section 1a will have the effect of beating people out of the opportunity to earn overtime. It is not equitable to always give those eligible to earn credits hours first crack at the opportunity. The old language is preferred.
This Section is contingent on a compensation negotiation consideration. In other words, if the management team doesn't give us what we feel is proper compensation in return for this Section it will be withdrawn.
Section 9 appears to exclude FSDPS personnel from non-exempt employees for FLSA purposes. It reads: "The Parties recognize the Employer has determined FG-2152 NAATS bargaining unit members at flight service stations are non-exempt employees for FLSA purposes." What is the intent? Can the phrase "at flight service stations" be removed?
Automation Specialists at the FSDPS's are assigned to a parent AFSS.
TAU 98, Article XX, On-the-Job Training: NAATS bargaining unit members should receive premium pay of 10 percent for On-the-Job training just as NATCA bargaining unit employees receive that pay. It should be emphasized that the training of flight service specialists often involves more knowledge and more time due to job complexity.
This is being addressed in the compensation negotiations.
TAU 99, Article 78, Facility Expansion: NATCA has a provision in their contract indicating that the Agency shall conduct a needs assessment survey to determine the feasibility of establishing a child care facility when new facilities are constructed with at least fifty employees. That language is not contained here nor in the Child Care TAU 7. Why not?
We considered the language you mention. It should be noted that a requirement to conduct a needs assessment is just that. It doesn't mean the FAA has to build a child care facility, only that they have to do a needs assessment. We felt this can be better addressed through non-traditional means.
TAU 103, Controller-In-Charge (CIC) Duties: If CIC pay is not authorized for our bargaining unit, then the language in Section 1 should revert back to the old contract, which indicated that CIC duties are used to "supplement the supervisory staff but not to eliminate the need for filling a vacant supervisory position." The new language makes no reference to filling vacancies and the Union is setting itself up for full-time CIC’s.
The Agency has cut costs at the 14 Alaskan FSS’s by eliminating on-site supervisory personnel and requiring the specialists to perform CIC duties during their entire shift. These specialists should receive the benefits of those cost savings, as well as any other NAATS bargaining unit employees who are utilized as a CIC. NAATS bargaining unit members should receive premium pay of 10 percent for CIC duties just as NATCA bargaining unit employees receive that pay.
This is being addressed in the compensation negotiations. As for the Alaska specific concerns, we suggest you provide your thoughts and comments to your Regional Director who is a member of the team.
In closing, we appreciate the opportunity to discuss what we feel is a significantly superior agreement to the red book. A complete rationale will be provided when the ratification process begins. In the interim if you have questions or comments about the TAUs feel free to contact either of us. You can also contact your Regional Director since all regions are represented on the NAATS Negotiations Team.