Tuesday, May 10, 2011
NATCA Prevails in Settlement of Grievances over 2005 USERRA Violation
With the assistance of the U.S. Office of Special Counsel, NATCA recently settled two grievances wherein the agency failed to properly pay and promote an Air Traffic Controller after his deployment to Afghanistan, in violation of The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).
The case originated back in 2005 when the agency tentatively offered the grievant employment as an ATC. When he received the offer of employment, the grievant had already been notified that he would be deployed to Afghanistan in April 2005. The agency informed the grievant at that time that the hiring process could be delayed. When the grievant returned from Afghanistan, he contacted the agency and accepted the offer of employment on July 3, 2006. The agency issued the grievant a firm offer letter on July 20, 2006. The offer letter informed the grievant that his salary would be $36, 487. However another individual who also received an offer letter in February 2005, and who was not deployed to Afghanistan, received a firm offer letter on January 26, 2006 offering him a salary in the amount of $43, 830.
The grievant raised this inequity with local FAA management as well as with FAA Human Resources; however, the agency refused to address the issue. After failing to resolve the matter on an informal basis with the agency, the grievant filed a complaint against the FAA with the Department of Labor. The Office of Special Counsel investigated his complaint and found merit to it, concluding on May 31, 2008 that, but for the grievant’s deployment to Afghanistan, he would currently be receiving the same pay offered to other individuals who received the same offer in February 2005 as he did. However, the Office of Special Counsel stated that the proper forum for resolution of the dispute was, at that time, the parties' grievance process. Accordingly, NATCA filed a grievance on his behalf.
In September 2008, the agency admitted that a USERRA violation had indeed occurred. However, at that time, they failed to properly compensate the grievant for the violation and failed to reset the grievant’s pay to the proper level. Accordingly, the union filed a second grievance over that failure. In February 2011, with assistance from the Office of Special Counsel, the parties ultimately agreed on a final settlement of the case. The agency corrected all of the grievant’s SF-50s, recalculated and processed the grievant’s pay for each pay period retroactive to May 30, 2006, and provided the grievant with approximately $81,000 of back pay due to him, plus interest.
FLRA Upholds Arbitrators Rescission of One-Day Suspension
NATCA just received a favorable decision from the FLRA upholding an arbitration award in the NATCA AIR bargaining unit. The agency suspended the employee for one-day for calling in and coming to work 45 minutes late to work when she was visibly ill with the flu. The union filed a grievance and proved at the hearing that the employee should not have been disciplined. The arbitrator agreed with NATCA and ordered the agency to rescind and expunge the suspension and provide back pay for the one day of lost pay. The attorney in the FAA’s New England Regional Office inexplicably filed exceptions to the arbitrator’s award on the ground that the agency did not receive a fair hearing because he did not receive a copy of the union’s post-hearing brief. The union filed an Opposition to the agency’s exceptions, noting that the agency had never requested a copy of the union’s brief and that the agency had failed to prove any actual harm due to not having received a copy of the brief. The FLRA agreed with the union and denied the agency’s exceptions, stating that the agency failed to prove that it was denied a fair hearing based on its failure to receive a copy of the union’s brief.