A Record of FAA/NATCA Arbitrations: the final 18-months of the Bush Administration

Here is a list of all known Arbitrations* between FAA and * As a common protection from improper management actions, controllers can file grievances if/when they have workplace concerns. The grievance is reviewed and decided locally and at two more levels (at the District, then at the FAA Regional Office). If it is denied at all three levels, it may then be ‘elevated’ for a hearing before an ‘arbitrator’ chosen by both FAA and NATCA.NATCA, at FAA’s Western Pacific Region. The list covers the timeframe from July 2007 until January 2009, which is the final 18-months of the ‘W’ Administration.

It was a particularly dark time in Air Traffic Control. For one, FAA had imposed workrules on the controllers (the ‘Whitebook’). And, on top of that, the other federal entities intended to protect employees (MSPB, OSC, FLRA, etc.) were all hobbled with too little personnel, too little money, and partisan leaders emplaced to essentially shut them down. It was almost a perfect storm for rogue FAA managers to get away with attacking selected employees who were ‘problematic’ by virtue of their whistleblower qualities: the type of people who recognize problems, speak up about them, and follow through to make things right.

Below are details for the twelve Arbitration Summaries, including links to FOIA response copies (mostly from the Remand response to F10-8248, as received on 10/18/11). And, at the bottom of this webpage, after the Arbitration Summaries, you will find a brief analysis of the overall arbitration handling during this time period.

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1

7/9/07

NC-05-0187-(?)
Arbitrator:
Kagel

10-day Suspension, NOT CHANGED.

Grievant was charged with failing to perform duties while sleeping. On 9/27/04, she was doing Flight Data duties and was reclined, feet up on a trash can, head back and eyes closed. During a Weingarten meeting held later that day, she claimed to have had a headache.

The hearing was held (date unknown, but likely early 2007) in front of Arbitrator Kagel. Both parties cooperated, submitting JointxExhibits. Grievant admitted having been in the reclined state with eyes closed for five to ten minutes.

Grievant’s disciplinary history included an 8/22/04 reprimand for improper use of the leave program. Grievant had retired from FAA prior to the arbitration hearing.

7-9-2007 Arbitration Decision (15p)

NATCA: Melinda Kim (Washington, DC) & Mike Hull (California)
v.
FAA: Kevin Gray (AWP-16)

2

7/30/07

NC-06-0900-DVT
Arbitrator:
Klein

5-day Suspension, NOT CHANGED.

Grievant was a controller at Phoenix’s Deer Valley Airport. He had 21-years of FAA service. Early on the morning of 5/18/05, a manager observed him working two aircraft, issuing instructions but not looking at the flights; he was instead rummaging through his backpack and tending to his personal papers. Grievant had previously been counseled in December 2004, and had been issued a written admonishment in March 2005. Two months after the incident, grievant gave FAA a 7/31/05 written statement, admitting his mistake and apologizing. A year later, in May 2006, FAA suspended him for Inattention to duty; Negligent or Careless performance.

The hearing was held on two days: on 1/24/07, and a month later on 2/28/07, in front of Arbitrator Klein. Both parties cooperated, submitting JointxExhibits. FAA submitted an 8-page post-hearing brief on 6/8/07. Arbitrator Klein issued her 17-page decision on 7/30/07.

7-30-2007 Arbitration Decision (17p)6/8/2007

NATCA: Melinda Kim (Washington, DC)
v.
FAA: Dan Castrellon (AWP-16)

3

8/20/07

NC-05-0416-ONT
Arbitrator:
Klein

5-day Suspension, settled to Letter of Reprimand.

Grievant was a controller at Ontario Airport. On 12/28/04, grievant asked a United pilot to do a full 360-turn on final for spacing, while “conditions were IFR with moderate to heavy precipitation and light icing.” The pilot rejected the request. When the pilot phoned after landing, grievant called him a ‘fucking asshole’ several times. The ATC tapes showed grievant was upset and unprofessional. A Weingarten meeting was held on 1/12/05. A letter proposing a 5-day suspension for Inappropriate Behavior was issued on 5/5/05.

The suspension was evidently served, as an 8/20/07 settlement declared FAA would make the grievant whole. A Letter of Reprimand was issued, but the charge had become stale, so nothing was added to the Personnel Folder. The 8/22/07 hearing in front of Arbitrator Klein was cancelled on short notice.

8-20-2007 Arbitration Settlement (3p)

NATCA: Kevin Sills (Washington, DC)
v.
FAA: Aletha Hicks-Moffatt (AWP-16)

4

11/26/07

NC-05-16974-VGT
Arbitrator:
Klein

3-day Suspension, NOT CHANGED.

Grievant was a male air traffic controller at the North Las Vegas airport, with 38-years of federal service. He became secondary OJT instructor for a new female trainee, reassigned from a closed Flight Service Station. The tower had been all-male for years, and controllers had become comfortable with some ‘good-ole-boy’ habits and conversations. In early November of 2004, grievant was conducting OJT at the Ground Control position. The female trainee needed to reach over a counter. She was wearing jeans and, at the moment she leaned, grievant directed the head of a male coworker to see, and grievant also wagged his tongue. FAA issued a 3-day suspension for sexually inappropriate actions. Agency also charged he had lied during investigative interviews.

The hearing was held on 3/14/07 in front of Arbitrator Klein. Both parties cooperated, submitting JointxExhibits. Grievant admitted the charges and expressed remorse. Parties delivered post-hearing briefs on 7/2/07. Arbitrator issued a 20-page decision on 11/20/07.

11-26-2007 Arbitration Decision (20p)

NATCA: Jennifer Kukac (Washington, DC)
v.
FAA: Aletha Hicks-Moffatt (AWP-16)

5

4/25/08

NC-07-045-CCR
Arbitrator:
Tamoush

30-day Suspension, NOT CHANGED.

Grievant was a 50-yr-old male air traffic controller at the Concord, CA airport. In recent years, grievant had been issued a series of admonishments, including a 5-day suspension issued in December 2004. On 10/18/06, Grievant became upset about the inattentiveness of a coworker and transmitted to a pilot, “get off my freakin runway!”; minutes later, while leaving the tower, he yelled at his union representative and used expletives overheard by airport visitors. On 12/4/06, he was issued a letter proposing a 30-day suspension for his Inappropriate Behavior in October. Grievant retired in February 2007, the same month that he served the suspension.

The hearing was held on 3/20/08 in front of Arbitrator Tamoush. Both parties cooperated, and submitted JointxExhibits. At the hearing, grievant admitted his misbehaviors. The suspension was sustained with an 8-page decision.

4-25-2008 Arbitration Decision (8p)

NATCA: Kevin Sills (Washington, DC)
v.
FAA: Glenn Rotella (AWP-16)

6

10/10/08

NC-05-0479-NCT
Arbitrator:
Klein

14-day Suspension, reduced to 1-day Suspension.

Grievant was an air traffic controller at NCT (Northern California TRACON) in Sacramento, and had worked for FAA since 1990. On 8/21/05, he was suspended for 14-days. An extensive list of eight charges included: failure to provide medical records, forging/falsifying records, making inappropriate statements about others (both management and union), failure to follow instructions, abuse of leave policies, and being AWOL. He had no prior disciplinary record. The case included medical issues (sleep apnea, sinusitis). The case included discussion of two letters by grievant, posted in early 2005, critical of management and the union. The record shows an evident personality conflict between grievant and one management official.

The hearing was held on 10/24/07, and on 10/25/07, in front of Arbitrator Klein. Both parties cooperated, submitting JointxExhibits. FAA submitted a 15-page post-hearing brief on 3/7/08. Arbitrator Klein issued her 63-page decision on 10/10/08.

10-10-2008 Arbitration Decision (63p) & 3-7-2008 FAA Brief (15p)

NATCA: Kevin Sills (Washington, DC) & John Paiva (California)

v.
FAA: Dan Castrellon (AWP-16)


7

12/2/08

NC-07-57715-CMA
Arbitrator:
Klein

Removal, NOT CHANGED.

Grievant was a 44-yr-old controller at Camarillo, CA. He was fired effective 1/6/07 and charged with: (1) Failure to Follow Directions (he was in the tower when he answered a 4/29/06 cellphone call from his babysitter); and, (2) Inappropriate Behavior (he requested a line-check by another facility on 10/8/06, to document a coworker had abandoned his position; and, he was confrontational and used improper language). Essentially, FAA ‘batched’ as many charges as they could find. Grievant had a prior suspension in 2004 (7-days). Due to the Greenbook/Whitebook controversy, the parties had to stipulate that the matter was arbitrable. Workplace tensions related to the 9/3/06 imposed workrules (aka, Whitebook) are noted at p.38 of the Decision.

The hearing was held on 10/17/07, 10/18/07, and 2/28/08 in front of Arbitrator Klein. Both parties cooperated, submitting JointxExhibits. FAA filed a 5/1/08 post-hearing brief (18p). A 50-page decision was issued on 12/2/08.

12-2-2008 Arbitration Decision (49p)5-1-2008

NATCA: Kevin Sills (Washington, DC)
v.
FAA: Gwen Marshall (AWP-16)

8

12/13/08

NC-08-73936-EMT
Arbitrator:
Tamoush

10-day Suspension, reduced to 5-day Suspension.

Grievant was a male air traffic controller at the airport in El Monte, CA, and had years of experience as the facility union rep. He had a habit of referring to others by race/color; for example, ‘white controller’ or ‘black supervisor’. He defied management orders to not add color/race when referring to others. He was counseled on 6/15/06 and issued a letter proposing a 5-day suspension. His reaction was viewed as insubordination. A 10-day suspension was issued for various charges including making false/disparaging charges about others, and failure to follow orders.

The hearing was held on 8/14/08 in front of Arbitrator Tamoush. Both parties cooperated, submitting JointxExhibits. A decision was issued on 12/13/08.

12-13-2008 Arbitration Decision (8p)

NATCA: Brian Sherry (Washington, DC) & John Paiva (California)
v.
FAA: Dan Castrellon (AWP-16)

9

12/13/08

NC-08-73044-ONT
Arbitrator:
Tamoush

30-day Suspension, NOT CHANGED.

Grievant was 61-yrs-old, a rehired PATCO air traffic controller, and he worked at the Ontario, CA airport. He had a long disciplinary history of Inappropriate Behavior, including numerous discriminatory and sexual comments. He had a 10-day suspension in 2005, and a 30-day suspension in 2006. Then, in November 2007, management issued him a letter proposing his removal for a 9/26/07 outburst. He negotiated that down to a 30-day suspension, which he immediately grieved on 1/7/08. After his suspension, he returned to work and resumed his misbehavior; a new removal proposal letter was drafted in April. He retired in June 2008, just days ahead of receiving a removal decision letter.

The hearing was held on 9/16/08, in front of Arbitrator Tamoush. Both parties cooperated, submitting JointxExhibits. A decision was issued on 12/13/08.

12-13-2008 Arbitration Decision (7p)4-22-2008

NATCA: Kevin Sills (Washington, DC) & John Paiva (California)

v.
FAA: Walter Schuster (AWP-16) & Aletha Hicks-Moffatt)


10

12/15/08

NC-05-17042-ONT
Arbitrator:
Klein

5-day Suspension, settled to a 2-day suspension.

Grievant was a 40-yr-old air traffic controller at Ontario Airport. He had failed to report an Operational Error (OE) on 8/24/04. A 5-day suspension was issued. A grievance was filed and it was elevated to arbitration.

The hearing was first scheduled for 6/17/08 and 6/18/08, in front of Arbitrator Klein. The hearing was rescheduled to ‘December 2008’, but no hearing was held. The settlement, signed by Hicks-Moffatt and Sills on 12/15/08, includes the clause: “…parties will equally share the cost associated with the cancellation of the arbitration.” The settlement essentially abandoned all discipline. A 2-day suspension was issued, but with no loss of pay, to be served on a regular weekend. All documentation was to be stripped from the Personnel Folder in two weeks, on 1/1/09.

12-15-2008 Arbitration Settlement (2p)

NATCA: Kevin Sills (Washington, DC)
v.
FAA: Aletha Hicks-Moffatt (AWP-16)

11

1/17/09

NC-08-77405-SJC
Arbitrator:
Tamoush

Removal, changed to facilitate Grievant’s retirement.

Grievant was an air traffic controller in his forties, working at San Jose International Airport. In November 2006, he and two others became ill from fumes related to an HVAC repair. An impasse developed, with FAA placing grievant into an AWOL status, grievant failing to produce medical records, and FAA refusing to allow grievant to return to work. He was eventually fired on 1/28/08, charged with extended AWOL and non-availability for work.

The two-day hearing was held on 4/14/08 and 4/15/08, in front of Arbitrator Tamoush. FAA challenged jurisdiction (due to Whitebook/Greenbook conflict), which was settled using the NE-08-338-BED 5/2/08 decision by Arbitrator Elizabeth Neumeier. Both parties cooperated, submitting JointxExhibits. Arbitrator Tamoush then decided for grievant, reversing FAA’s removal. No backpay was awarded, but FAA was essentially directed to facilitate grievant’s retirement.

1-17-2009 Arbitration Decision (14p)5-2-2008

NATCA: Kevin Sills (Washington, DC)
v.
FAA: Dick Fossier (AWP-16)

12

??

“Greivance #63146”
Arbitrator:
Tamoush

3-day Suspension, …(hearing delayed).

A controller at Laverne Brackett Airport (POC ATCT) was issued a 3-day suspension for reasons not yet known. A new FOIA request seeks further details to be posted here later.

The hearing was scheduled for 7/9/08, then delayed to 9/10/08, and then delayed again to December 2008. The hearing was to be held in front of Arbitrator Tamoush.

NATCA: unknown rep
v.
FAA: Aletha Hicks-Moffatt (AWP-16)

A Brief Analysis

FAA records indicate that these twelve cases represent all FAA-NATCA terminal arbitrations brought to closure during the final eighteen months of the Bush Administration. Some of the points suggested by these cases:

  1. Age Discrimination: nearly all cases involve controllers who were in their forties or fifties, at (or approaching) retirement eligibility. Age/experience are marked with yellow highlight.
  2. In nearly all cases, there was a level of cooperation between NATCA and FAA that resulted in the production of Joint Exhibits into the record. These cases are indicated with “JointxExhibits”
  3. there are very substantial delays in resolving these cases. It appears that FAA and NATCA allow arbitrated disputes to continue for many years, leaving the grievant in limbo. This must also put a lot of discomfort on personnel in the various towers.
  4. Most arbitrations produced NO CHANGE. Generally, NATCA’s efforts produced positive results only in the most trivial cases.
  5. the San Jose case (#11) was the largest success by NATCA; this was achievable because the case record included substantial evidence of arbitrary and malicious actions by FAA.
  6. the most egregious cases related to the Lewis-FAA ULP are the 30-day suspensions at Concord (#5) and at Ontario (#9). In both cases, NATCA pressed through the entire arbitration process for controllers who were already retired AND had extensive disciplinary histories.
  7. the record also shows NATCA is willing to expend money and effort arbitrating 3-day and 5-day suspensions, despite the fact the costs far exceed any potential benefits, and the cases were very likely unwinnable due to admitted offenses. NATCA would routinely fly representatives out from the East Coast, for multi-day trips. In one example, the Phoenix – Deer Valley arbitration, a 5-day suspension was sustained after hearings on both 1/24/07 and 2/28/07.