Legislation & Politics

AFSCME Urges Congress to Force FAA to Bargain in Good Faith

Statement For The Record of the American Federation of State, County and Municipal Employees (AFSCME) on the Federal Aviation Administration Reauthorization before the U.S. House of Representatives and United States Senate Committee on Transportation and Infrastructure Subcommittee on Aviation
March 14, 2007

The American Federation of State, County and Municipal Employees (AFSCME) submits the following statement for the hearing record.

AFSCME is a labor organization that represents over 1.4 million workers, predominantly in the public sector.  Over 2,000 of our members are employed by Federal Aviation Administration (FAA) in professional positions at the FAA Headquarters in Washington, D.C. 
 
This statement will describe how the sweeping new authority granted to FAA by Congress to reform its personnel system has resulted in a fragmented and punitive system for FAA employees and the need for a legislative solution to this lingering problem.  In 1995, Congress mandated in the Department of Transportation FY96 Appropriations bill (PL 104-50) that FAA develop a new personnel system in "consultation" with its employees.  Congress specifically exempted FAA from pertinent civil service personnel laws, or other personnel rules or regulations under Title 5 of the United States Code (USC) to allow for increased administrative flexibility.  FAA sought such exemptions purportedly to create a pay system competitive with the private sector but in doing so stripped employees of all union representation and negotiation rights and of even the basic right of employees to join a union.

 At the urging of the various unions which represent FAA employees and who would lose the right to represent these employees, Congress reinstated employee union rights under Chapter 71, Title 5, USC, and directed FAA to legally "bargain" with the exclusive bargaining representative of the employees certified under section 7111 of Title 5, USC in the Federal Aviation Administration Reauthorization Act of 1996.  The FAA Reauthorization Act also set up a flawed process for mediating bargaining impasses in the event FAA did not reach agreement with the employees.  After utilizing the services of the Federal Mediation and Conciliation Service to mediate any disputes, FAA was given the authority to take the proposed changes to Congress for their review after 60 days of impasse.  In essence, at the end of the 60-day period, FAA would be free to implement a new personnel system without regard for any terms agreed to in prior bargaining or any agreements reached previously.  This flawed one-sided approach to bargaining provides no incentive for FAA to bargain in “good faith” because the agency has the statutory authority to wait 60 days and then implement its own rules and terms.  Negotiating under this type of arrangement is a pointless exercise. 

Notwithstanding these circumstances, the FAA unions, including AFSCME, entered into good faith negotiations with FAA only to end up with their contracts either stalled or employees working under FAA-imposed rules and pay, as AFSCME members currently are.  The much-heralded new personnel system for the 21st Century that FAA was supposed to develop does not exist.  In AFSCME’s situation, we negotiated a contract and concluded negotiations in January 2001.  Employees ratified the contract, and FAA subsequently approved it.  However, since 2001, FAA has failed to implement the contract and has instead imposed its own work rules and pay system.  Employees do not even have a genuine grievance process where their complaints can be decided impartially. 

The facts are that AFSCME and FAA initiated bargaining in June of 2000 over the new personnel system pursuant to the congressional mandates cited above.  AFSCME and FAA came to agreement over the personnel system in January 2001.  FAA made several proposals to restructure the pay system, including broad-banding pay, pay for performance, elimination of within-grade raises and market based adjustments to pay bands.  In exchange for AFSCME's concessions, FAA agreed to provide an eight percent pay increase over seven years.  AFSCME agreed to generate productivity increases sufficient to fully fund the eight percent pay increase. 

When questioned by AFSCME about the failed implementation of the contract, then FAA Administrator Jane Garvey informed AFSCME that FAA would not execute the contract because the Office of Management and Budget (OMB) ruled that the agreement violated government personnel rules and regulations.  Supposedly at issue were positions considered "clerical" or "administrative support."  According to Garvey, OMB advised FAA that the pay increases were outside the range of similar positions in other agencies. 

Obviously, this was a subterfuge by the Administration because the Congress gave FAA total flexibility in developing a new personnel system, exempt from government-wide personnel rules and regulations.  To then use government personnel rules and regulation as an excuse to reject the contract is, at best, disingenuous.  FAA was clearly not bound by such rules in their negotiated agreement as a result of congressionally legislated FAA personnel reform.  The FAA requested and was given total flexibility to negotiate an agreement that would provide the agency with the ability to compete with the private sector in hiring and retaining qualified personnel.  Moreover, AFSCME maintains that FAA was not even required to obtain OMB approval of contract terms.  The only language in the FAA personnel reform legislation which indicates anything other than total flexibility for FAA is the following: "If the services of the Federal Mediation and Conciliation Service do not lead to an agreement, the Administrator's proposed change to the personnel management system shall not take effect until 60 days have elapsed after the Administrator has transmitted the proposed change, along with the objection of the exclusive bargaining representatives to the change, and the reasons for such objections, to Congress."

An unfair labor practice charge filed against FAA for its refusal to execute and implement the contract based on bad-faith bargaining was denied by the Federal Labor Relations Authority.  The decision was appealed, and the final outcome was adverse to AFSCME's position.  The Administrative Law Judge determined that since AFSCME agreed to negotiate with the FAA that we somehow acquiesced to OMB's authority. 

AFSCME has tried every means available to resolve this long and protracted contract dispute with FAA.  At this point, AFSCME has a negotiated contract that FAA refuses to implement.  AFSCME has asked Congress to review the contract issue and as a result report language was inserted, on two separate occasions, in appropriations measures directing FAA to implement the contract.  FAA has chosen to ignore these directives.  Considering that AFSCME has exhausted all means to resolve this matter and FAA has used all means to thwart our efforts and those of the other unions who are in the same untenable position, we believe it is time for Congress to resolve this matter and allow FAA employees to be fully represented by their duly elected representatives.

We appreciate the opportunity to submit remarks for the record on the Reauthorization of the Federal Aviation Administration. 

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