united states district court district of …...no. cv-08-02137-phx-gms state court no. cv2007-016329...
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Attorneys at Law 814 W. Roosevelt
Phoenix, Arizona 85007 (602) 258-1000 Fax (602) 523-9000
Michael W. Pearson, SBN 016281 Robert D. Wooten, SBN 019640
Daniel S. Riley, SBN 026525 Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
JOHN GILDING, a married man, Plaintiff, v. JOHN S. CARR, et al. Defendant(s).
No. CV-08-02137-PHX-GMS State Court No. CV2007-016329
PLAINTIFF’S RESPONSE TO DEFENDANT NATCA’S MOTION TO DISMISS
(The Honorable Judge G. Murray Snow)
Plaintiff John Gilding (“Gilding”) hereby responds to Defendant National Air Traffic
Controllers’ Association’s (“NATCA”) Motion to Dismiss. This Response is supported by the
attached Memorandum of Points and Authorities. Moreover, as many of the issues pertaining to
NATCA’s labor law preemption argument are also addressed in Plaintiff’s Motion to Remand and
subsequent Reply in support of such motion, Plaintiff hereby incorporates those motions by
reference.
CURRY, PEARSON & WOOTEN, PLC /s/ Michael W. Pearson
Michael W. Pearson 814 W. Roosevelt Phoenix, Arizona 85007 Attorney for Plaintiff
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Memorandum of Points and Authorities
I. Introduction.
NATCA’s Motion to Dismiss seeks to grossly expand the federal doctrine of complete
preemption so as to grant blanket tort immunity to labor unions and their agents, even for tortious
acts committed outside the workplace, and even when such acts are committed by private citizens
and/or Union members who are not officers. Due to personal animosity, NATCA agents have
engaged in a campaign of “dirty tricks” against Plaintiff. Union officers illegally stole portions of
Plaintiff’s confidential personnel files, thereby obtaining Plaintiff’s social security number, date of
birth, and other personal information. These agents also coordinated a series of defamatory attacks
on Plaintiff’s character via various public websites. None of the conduct complained of was
committed in the course of any legitimate grievance process, nor does this case involve any type of
dispute with the Federal Aviation Administration (“FAA”), or any other body of the United States
Government. As such, this case does not include any of the elements of a valid labor law preemption
defense.
II. Facts.
This case began with the online publication of a series of defamatory articles targeting
Gilding in July of 2007, shortly after he was selected by the FAA as its new Support Manager for
Training at Phoenix Sky Harbor International Airport. Defendants Carr (a private citizen) and Marks
(an FAA air traffic controller in California) admittedly wrote the articles with the assistance of
Defendants Johnston and Palmer (officers in NATCA Local PHX). The articles falsely accuse
Gilding of (1) harassing and intimidating a subordinate to the point that she committed suicide, (2)
harassing and intimidating a trainee to the point that he quit the FAA, (3) violating the civil rights of
his subordinates, (4) illegally covering up operational errors, (5) as well as a variety of other
unethical and/or illegal business practices.1 In the conclusion to this series of articles, Defendants
asked their readers to:
1 See Attached Exhibit A (series of defamatory articles published about Gilding by the Defendants).
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Resist the urge to vomit, and instead email the FAA Administrator at [email protected] and weigh in on her tacit approval of this grossly inappropriate personnel move...the promotion of this miscreant, and his transfer back...to the scene of the crime.
The FAA Administrator was inundated with e-mails from angry readers who were
intentionally misled by the defamatory articles. In order to defuse the public relations nightmare
created by Defendants’ false allegations, the FAA transferred Gilding into a lateral position without
any reduction in pay. The FAA did not punish Gilding, because it investigated the defendants’
claims and found them to be complete fabrications.
Gilding brought suit in the Maricopa County Superior Court on September 6, 2007. During
the discovery process, Defendant Johnston disclosed various documents constituting the Union’s
“hit file” on Gilding. Included in this file were confidential government personnel records
containing Gilding’s date of birth and social security number. Defendant Johnston illegally obtained
these documents and subsequently distributed them to other parties. Consequently, Gilding amended
the Complaint in October of 2008 to add a count of Invasion of Privacy.
As much as NATCA would like this case to be a typical employee-agency dispute, it simply
is not. This case involves intentional torts committed outside the workplace by various private
citizens, FAA employees, and local union officers against a federal staff officer. NATCA has
morphed the true facts of this case in a pretextual attempt to shoehorn this matter into some type of
preemption defense. Despite NATCA’s baseless assertions to the contrary, this matter does not
involve (1) allegations of improper job actions by the FAA; (2) any kind of internal employment
dispute between Gilding and the FAA; (3) defamation claims predicated on statements made solely
in the context of EEOC proceedings or internal grievances; or (4) defamations claims based on
complaints made directly to FAA management.2
/./././
2 See NATCA’s Motion to Dismiss, pg. 3.
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III. LEGAL ARGUMENT.
A. Standard of Review.
A motion to dismiss based on lack of jurisdiction falls into one of two categories. If the
motion constitutes a facial attack on the legal grounds of jurisdiction, then the allegations in the
Complaint are taken as true, and all allegations must be construed in the light most favorable to the
non-moving party (here, Gilding).3 If, on the other hand, the motion challenges the plaintiff’s factual
contentions regarding jurisdiction, then the Complaint is afforded no such presumption of truth.4
NATCA cites Thornhill for the proposition that “plaintiff’s allegations are not presumed
true...”5 In doing so, NATCA fails to distinguish between facial legal attacks on jurisdiction, like the
one involved here, and factual challenges to the basis of jurisdiction, as occurred in Thornhill.6
NATCA does not challenge the facts underlying the jurisdictional question before this Court.
Instead, NATCA launches a facial attack on this Court’s legal jurisdiction based on an erroneous
reading the Civil Service Reform Act (“CSRA”). As such, the Complaint must be taken as true, and
all allegations must be construed in the light most favorable to Gilding.
NATCA also incorrectly states that “plaintiff bears the burden of proof that jurisdiction
exists.”7 In reality, it is the defendants who bear a “significant” and “exacting” burden of proof: “Recognizing that complete preemption undermines the plaintiff's traditional ability to plead under the law of his choosing, the Supreme Court has made clear that it is ‘reluctant’ to find complete preemption. The Court has, in fact, found complete preemption in only three statutes (National Bank Act; ERISA § 502(a); Labor Management Relations Act § 301). Unsurprisingly, therefore, the Court has articulated exacting standards that must be met before it will find complete
3 See Silvas v. E*Trade Mort. Corp., 514 F.3d 1001, 1003-4 (C.A.9 2008) (reasoning that a motion to dismiss based on the preemptory effect of federal banking regulations should be treated as a 12(b)(6) motion and that all allegations in the complaint must be taken as true as a result); see also Whiting v. United States Army, 2008 WL 4104596 (D.N.J. 2008); NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 4 Id. 5 NATCA’s Motion to Dismiss, pg 5, citing Thornhill Pub. Co. v. Gen. Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979). 6 Thornhill Pub. Co., 594 F.2d at 732 (Thornhill sued General Telephone for violations of the Sherman Act. General Telephone did not dispute the legal basis of jurisdiction. Instead, it challenged the factual basis of jurisdiction by asserting that its conduct did not affect interstate commerce and was not therefore subject to the Sherman Act). 7 NATCA’s Motion to Dismiss, pg 5.
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preemption...[D]efendants seeking removal under the doctrine of complete preemption bear a significant burden. They must establish congressional intent to extinguish similar state claims by making the federal cause of action exclusive. And as we must construe removal strictly, reasonable doubts must be resolved against the complete preemption basis for it.”8
B. NATCA Grossly Misquotes, Mischaracterizes, and Morphs the
FAA PMS.
In order to facilitate its argument that the FAA Personnel Management System (“PMS”)
completely preempts state-law tort claims, NATCA has fabricated a regulatory scheme that simply
does not exist. Through fallacy of composition, NATCA wrongly asserts that Gilding’s claims are
preempted, because Gilding allegedly could have filed a grievance under the PMS for: “‘willful[] obstruc[tion of] any person’ by any FAA employee with his employment as an FAA supervisor, for ‘tak[ing] or fail[ing] to take any…personnel action…[that] violates any law or regulation…concerning the merit system principles…’ and for failing to take ‘proper regard for [his] privacy.’”9
What NATCA fails to mention is that it has created the regulatory provision quoted above by
simply rearranging and stitching together various unrelated and inapplicable provisions of the PMS,
all the while ignoring key language that gives context to the quoted phrases. That is, NATCA is
attempting to substitute a policy more to their liking in place of the actual enumerated text of the
FAA’s PMS. “Willful obstruction,” as it is used in the actual PMS, refers only to hiring practices.10
NATCA’s use of the phrase “any employee” gives the false impression that adverse personnel
practice claims against non-supervisory employees like the defendants are subject to an internal
grievance process under the PMS. They aren’t. The actual language of the provision cited by
NATCA reads:
8 Lontz v. Tharp, 413 F.3d 435, 440 (C.A.4 2005) (citations omitted). 9 NATCA’s Motion to Dismiss, pg. 8 (ellipses and brackets in the original), citing FAA PMS, Introduction, § VIII; FAA PMS, Chapter III, ¶ 4-5; 49 U.S.C. §§ 40122 (h)-(j). 10 See Attached Exhibit B (Color-coded excerpt of the FAA PMS Introduction) at § VIII(a)(iii) (An FAA management official may not “deceive or willfully obstruct any person to withdraw with respect to such person’s right to compete for employment.”).
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“Any FAA employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority [commit any of the enumerated prohibited personnel practices].”11
When read in context, it is clear that this provision only provides for an administrative remedy
against those personnel who abuse their supervisory/managerial authority (i.e. their authority to
“take, recommend, or approve any personnel action”). Similarly, “proper regard for privacy,” when
read in context, actually refers to FAA management’s responsibility to implement the PMS and keep
private any data about applicants’ political affiliation, religion, race, sexual orientation, etc.12
NATCA has deceptively manufactured its own Frankenstein regulation by cobbling together
disparate bits and pieces from various unrelated and inapplicable portions of the PMS. Exhibit B,
attached hereto, is a color-coded copy of the PMS Introduction that clearly illustrates how NATCA
has intentionally removed select “inconvenient” provisions from the PMS, quoted others out of
context, and then rearranged the quoted passages in order to create a self-serving policy and
bootstrap a false preemption argument. Simply put, NATCA has improperly supplanted its own
intent for that of the legislature and FAA by manufacturing a regulatory scheme of its own design.
This Court should ask itself: “If the PMS truly preempted Gilding’s claims, then why does NATCA
so grossly and intentionally contort its actual stated language?”
C. NATCA Fails to Recognize the Distinction Between Upstream and
Downstream Personnel Actions.
Labor laws are only concerned with protecting employees from abuses of authority. In the
context of federal employment, “authority” is typically limited to one’s supervisors, the agency
itself, and the U.S. Government. This was the understanding of both the legislative and executive
branches when the CSRA was signed into law.13 Various federal courts, including the United States
11 Id. at § VIII(a). 12 Id. at § VII(b). 13 See Exec. Order No. 10988, § 8; Exec. Ord. No. 11491, § 2(b); S.Rep. 95-969 (July 10, 1978).
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Supreme Court, have similarly interpreted labor laws as only preempting causes of action upstream,
against one’s superiors, the agency employer itself, and/or the Government.14
NATCA simply ignores the plain language of the CSRA and PMS and neglects to address
the requisite preemption element of “authority.”15 Every case cited by NATCA in support of its
preemption argument involves the typical preemption scenario in which an employee attempts to
sue a superior for conduct that is subject to an internal grievance process.16 By citing such cases,
NATCA fails to recognize the fundamental difference in this case. Unlike the cases relied on by
NATCA, Gilding has asserted no claims against his superiors, the FAA, or the U.S. Government.
Instead, he alleges various intentional torts downstream, against private citizens, inferior employees
who he has no supervisory authority over, and a national labor union. Additionally, Gilding has no
access to any internal grievance process against downstream employees.
14 Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 2405 (1983) (Federal labor law preempts “arbitrary action by supervisors.”); Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005) (“The CSRA limits federal employees challenging their supervisor’s ‘prohibited personnel practices’ to an administrative remedial system.”); Orsay v. Dept. of Justice, 289 F.3d 1125, 1128 (9th Cir. 2002) (“The CSRA provides a remedial scheme through which federal employees can challenged their supervisor’s ‘prohibited personnel practices.’”); Rollins v. Marsh, 937 F.2d 134, 139 (5th Cir. 1991) (The CSRA provides “comprehensive and exclusive procedures for settling work-related controversies between federal civil-service employees and the federal government.”) 15 Even if this Court were inclined to find that NATCA’s Local officers (Palmer and Johnston) were acting pursuant to some recognized Union “authority” when they committed the acts alleged in the Complaint, dismissal is still not warranted as Defendants Carr and Marks are not union officers and thus have no preemption defense. 16 United States v. Fausto, 484 U.S. 439 (1987) (claim by Fish and Wildlife employee against Dept. of the Interior); Bush v. Lucas, 462 U.S. 367, 368, 103 S.Ct. 2404, 2405 (1983) (Federal labor law preempts “arbitrary action by supervisors.”); Mangano v. United States, 529 F.3d 1243 (9th Cir. 2008) (claim by discharged Veterans’ Affairs doctor against the United States); Henderson v. U.S. Air Force, 2008 WL 454261 (9th Cir. 2008) (claim against the Dept. of the Air Force); Mahtesion v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005) (“The CSRA limits federal employees challenging their supervisor’s ‘prohibited personnel practices’ to an administrative remedial system.”); Orsay v. Dept. of Justice, 289 F.3d 1125, 1128 (9th Cir. 2002) (“The CSRA provides a remedial scheme through which federal employees can challenged their supervisor’s ‘prohibited personnel practices.’”); Blankenship v. McDonald, 176 F.3d 1192 (9th Cir. 1999) (claim by federal court reporter against her superiors); Saul v. United States, 928 F.2d 829 (9th Cir. 1991) (claim by Social Security Administration employee against his supervisor and area director); Rollins v. Marsh, 937 F.2d 134, 139 (5th Cir. 1991) (The CSRA provides “comprehensive and exclusive procedures for settling work-related controversies between federal civil-service employees and the federal government.”); Veit v. Heckler, 746 F.2d 508 (9th Cir. 1984) (claim by Social Security Administration employee against the Secretary of Health and Human Services); McAuliffe v. Rice, 966 F.2d 979 (5th Cir. 1992) (claim by discharged civilian employee of the Air Force against the Secretary of the Dept. of the Air Force); Graham v. Ashcroft, 358 F.3d 931 (C.A.D.C. 2004) (claim by FBI agent against the U.S. Attorney General).
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Mahtesian illustrates the fact that claims against downstream employees will only be
preempted in very rare circumstances. In that case, Mahtesian received a tentative offer of
promotion from the Department of the Treasury.17 Lee, his Manager, obtained a background check
on Mahtesian and interviewed several of Mahtesian’s co-workers.18 Lee disclosed information from
the background check during these interviews, and Wong (Mahtesian’s co-worker) made false
accusations during her interview.19 Mahtesian’s promotion was subsequently withdrawn, and he
filed suit in state court. He alleged defamation against Wong and invasion of privacy against Lee.20
The Ninth Circuit framed the issue as whether or not Lee and Wong’s conduct “falls within the
scope of the CSRA ‘prohibited personnel practices.’”21
The Ninth Circuit recognized that its analysis of the claims against Wong, a
lateral/downstream employee, would have to be quite different from its analysis of the claims
against Lee, an upstream employee.22 As to Lee, the supervisor, the Ninth Circuit held that: “The CSRA prohibits supervisors from improper [personnel practices]…To the extent that Lee’s alleged wrongful conduct consisted of interference with employment interest and invasion of privacy, this alleged conduct also constituted prohibited personnel actions…”23
As to Wong, the downstream employee, the Ninth Circuit seized on the requisite element of
“authority” and thus framed the question as whether or not Wong was acting pursuant to some
legitimate authority when she made the false statements about Mahtesian’s job performance: “[The CSRA] proscribes prohibited conduct by ‘[a]ny employee who has authority to...recommend...any personnel action.’ As she was approached and queried by appropriate authorities, Wong had authority to recommend or not recommend Mahtesian for employment. The statute specifically prohibits a person with such
17 Mahtesian, 406 F.3d at 1133. 18 Id. 19 Id. 20 Id. 21 Id. at 1134. 22 See Id. (providing two separate sections in the opinion, one addressing the claims against Lee, the other addressing the claims against Wong; each providing a different method of analysis). 23 Id.
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authority from ‘deceiv[ing] or willfully obstruct[ing]’ a person’s right ‘to compete for employment.’ Wong’s conduct falls under the ambit of the CSRA.”24
As illustrated in Mahtesian, claims against lateral or downstream employees will only be
preempted under unique circumstances showing that the conduct at issue was performed in the
ordinary course of business, pursuant to some form of legitimate authority.25 This case presents
none of those circumstances. Defendants intentionally went outside the normal channels of labor-
management relations and published false information on a public website. There is absolutely
nothing in the CSRA or FAA-NATCA Collective Bargaining Agreement that would provide
authority for that kind of facially egregious and improper activity, so Defendants’ conduct is not
preempted.
D. The Plain Language of the CSRA Provides No Preemption Defense.
Both Gilding and NATCA agree that the proper test for complete preemption is whether or
not Defendants’ conduct constitutes an improper job action, as defined in the CSRA.26 In the context
of activity by labor unions, the CSRA defines seven different types of improper job actions: (1) to interfere with, restrain, or coerce any employee in the exercise by the
employee of any right under this chapter; (2) to cause or attempt to cause an agency to discriminate against any employee
in the exercise by the employee of any right under this chapter; (3) to coerce, discipline, fine, or attempt to coerce a member of the labor
organization as punishment, reprisal, or for the purpose of hindering or impeding the member’s work performance or productivity as an employee or the discharge of the member’s duties as an employee;
(4) to discriminate against an employee with regard to the terms or conditions
of membership in the labor organization on the basis of race, color, creed, national origin, sex, age, preferential or nonpreferential civil service status,
24 Id. 25 See also Schwartz v. Int’l Fed. Of Prof. and Tech. Engineers, 2007 WL 3196347 (N.D.Tex. 2007) (claims against lateral employee preempted, because the lateral employee’s conduct was performed pursuant to his authority under the Collective Bargaining Agreement to file grievances on behalf of Union members). 26 See NATCA’s Motion to Dismiss, pg. 6, quoting Mahtesian v. Lee, 406 F.3d 1131, 1134 (9th Cir. 2005) (The test is whether “the conduct that [Plaintiff] challenges in this action falls within the scope of the CSRA’s ‘prohibited personnel practices’…”); see also Garvais v. United States, 2007 WL 1724956 (E.D.Wash. 2007) (“[I]f the alleged conduct does not fall within one of the CSRA’s eleven categories of ‘personnel action,’ other causes of action are not preempted.”)
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political affiliation, marital status, or handicapping condition; (5) to refuse to consult or negotiate in good faith with an agency as required by
this chapter; (6) to fail or refuse to cooperate in impasse procedures and impasse decisions as
required by this chapter; (7) to call, or participate in, a strike, work stoppage, or slowdown, or picketing
of an agency in a labor-management dispute if such picketing interferes with an agency’s operations, or to condone any [such] activity…by failing to take action to prevent or stop such activity.
(8) to otherwise fail or refuse to comply with any provision of [Chapter 71 of
the United States Code].27
It is clear that the conduct at issue here does not fall within any of the enumerated “unfair
labor practices.” Gilding is neither an “employee”28 nor a member of the Union, so the first four
definitions do not apply. Gilding is clearly not an agency or a labor union, so the fifth and sixth
definitions do not apply. The conduct at issue does not concern an improper strike or refusal to
cooperate in collective bargaining, so the seventh definition is inapplicable. Finally, there is no
applicable section of the CSRA that would qualify under the catch-all provision.
The cases cited by NATCA in support of its CSRA preemption argument generally involve
an interpretation of 5 U.S.C. § 2302(a),29 which provides the CSRA’s definition of a “personnel
practice.” Those cases are rendered largely inapplicable by the FAA PMS, which specifically
excludes FAA employee-management relations from the operation of 5 U.S.C. § 2302(a).30
Moreover, and as discussed more fully supra, the cases cited by NATCA all involve the typical
“boilerplate” labor law preemption scenario of an employee plaintiff attempting to sue an upstream
supervisory employee, or the government itself, due to unfair labor practices that are subject to an 27 5 U.S.C. § 7116(b) (emphasis added). 28 5 U.S.C. 7103(a) (under the CSRA, an “employee” does not include any “supervisor or a management official.”).29 United States v. Fausto, 484 U.S. at 446 (citing and relying on 5 U.S.C. § 2302); Bush v. Lucas, 462 U.S. at n. 16 (same); Mangano v. United States, 529 F.3d at 1246 (same); Henderson v. U.S. Air Force, 2008 WL 454261 (same); Mahtesion v. Lee, 406 F.3d at 1134 (same); Orsay v. Dept. of Justice, 289 F.3d at 1128-29 (same); Saul v. United States, 928 F.2d at 834 (same); Rollins v. Marsh, 937 F.2d at n. 1 (same); Veit v. Heckler, 746 F.2d at 511 (same); Graham v. Ashcroft, 358 F.3d at 934 (same). 30 FAA PMS, Introduction § II (“Under Section 347(b), FAA’s new personnel management system is exempt from all of Title 5 of the United States Code...” except for certain provisions not including § 2302(a)).
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internal grievance process. No matter how diligently NATCA tries to change the facts of this case,
they simply cannot transform this matter into a preempted labor-management dispute. The law cited
by the Defendant simply does not apply to the situation at hand.
Since the conduct at issue here does not fall within any of the definitions of an unfair labor
practice, as statutorily defined in 5 U.S.C. § 7116(b), there are no legitimate grounds for dismissal
under the doctrine of complete preemption. NATCA’s arguments to the contrary are composed
entirely of a substratum of inapplicable statutes and inapposite case law.
E. The Plain Language of the FAA PMS Provides No Preemption Defense.
In order to show that Gilding’s claims are preempted by the PMS, NATCA must prove: (1)
that NATCA and its agents were acting pursuant to some legitimate Union “authority” when they
committed the tortious acts,31 and (2) that the tortious acts fall within the PMS’s definition of a
“prohibited personnel practice.”32
The PMS incorporates the FAA-NATCA Collective Bargaining Agreement.33 A NATCA
officer’s “authority” under the Agreement is limited to “participation in the management of the
Union…including presentation of its views to officials of the Executive Branch, the Congress, or
other appropriate authority.”34 As such, Union officers’ statements are only preempted when made
solely in the context of official grievances, EEOC complaints, or communications directed at the
U.S. Government.35 No such preemptory effect applies to Union officers’ “off-the-job” statements
and defamatory attacks made via a public website.
31 FAA PMS, Introduction § VIII(a) (“Any FAA employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority” commit any of the enumerated prohibited personnel practices). 32 See FAA PMS, Introduction § VIII(a)(i)-(ix). 33 FAA PMS, Introduction § III (“The FAA has elected to continue the rights and benefits of union representation to our employees by providing for recognition of exclusive representatives, collective bargaining, and union representation in accordance with the provisions of Chapter 71.”); see also FAA PMS, Chapter III § 4(c)(i) (“The FAA Grievance Procedure shall not apply to…any employee covered by a collective bargaining agreement.”). 34 See Attached Exhibit C, Article 4 § 1 (select provisions of the FAA-NATCA Collective Bargaining Agreement). 35 See Schwartz, 2007 WL 3196347.
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NATCA’s agents were not acting pursuant to any legitimate statutory or contractual
authority when they published false information about Gilding on various public websites. Unlike
Schwartz, the statements at issue here were not confined solely to grievances or EEOC
proceedings.36 Instead, they were made in a public forum, completely outside the traditional labor-
management arena. As such, the Union’s agents were not acting pursuant to any protected authority,
and their conduct is not subject to the FAA PMS.
Even if the Union had been acting pursuant to some recognized authority, the conduct at
issue would still not be preempted, because it does not fall within any of the PMS’s definitions of a
“prohibited personnel practice.” There are nine such prohibited practices set forth in PMS
Introduction § VIII(a)(i)-(ix). They may be classified as:
Discrimination: The Union’s conduct does not constitute discrimination, because it
was not predicated on any of the enumerated improper classifications (e.g. race or sex).
Political Coercion: The Union’s conduct does not constitute coercion, because it was
not predicated on Plaintiff’s political affiliation.
Favoritism: The Union’s conduct does not constitute favoritism, because the Union did
not “grant any preference or advantage” to any individual.
Obstruction of an Application for Employment: The Union’s conduct does not
constitute obstruction, because Plaintiff’s application was not withdrawn as a result of
the defendants’ conduct. In fact, Plaintiff had already accepted and assumed the
responsibilities of the position of Support Manager for Training when the defamatory
articles at issue were published.
The simple and plain language of the PMS simply does not support NATCA’s preemption
argument, which is likely why NATCA chose to present this Court with its fabricated version of the
36 See Schwartz, 2007 WL 3196347.
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PMS in its Motion to Dismiss (see infra). None of the defendants were acting pursuant to any
authority granted by the PMS, CSRA, or FAA-NATCA Collective Bargaining Agreement.
Moreover, the conduct at issue does not fall within any of the PMS’s definitions of a “prohibited
personnel practice.”
IV. CONCLUSION.
NATCA asks this Court to broadly expand the preemption doctrine beyond anything ever
envisioned by Congress. The Union arrives at its preemption argument by simply snipping bits and
pieces of the FAA PMS, rearranging them, and then pasting them together out of context, like a
ransom note. When read in context, neither the PMS nor the CSRA support NATCA’s position.
Unlike the cases cited by NATCA, this matter does not involve claims made against
upstream personnel, the agency itself, or the U.S. Government. Nor does Gilding assert claims based
on privileged statements made solely in the course of grievances or EEOC proceedings. As such,
none of the traditional elements of a true preemption defense are present here.
For the reasons expressed in this Response, as well as Plaintiff’s Motion to Remand and
Reply in support of said motion, Plaintiff hereby respectfully requests that NATCA’s Motion to
Dismiss be denied and that this matter be remanded back to state court, with Defendants to bear the
cost of remand jointly and serverally.
RESPECTFULLY SUBMITTED this 12th day of January, 2009. CURRY, PEARSON & WOOTEN, PLC /s/ Michael W. Pearson Michael W. Pearson 814 W. Roosevelt Phoenix, Arizona 85007 Attorney for Plaintiff
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CERTIFICATE OF SERVICE
[x] I hereby certify that on January 8, 2009, I electronically transmitted the attached document to the
Clerk’s office using the ECF System for filing and counsel parties below were via the Clerk’s Office
ECF System: Kraig J. Marton, Esq. & David N. Farren, Esq. Jaburg & Wilk, P.C. 3200 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 Attorneys for Defendant John Carr Alan Ariav, Esq. Renaud Cook Drury Mesaros, PA Phelps Dodge Tower One North Central, Suite 900 Phoenix, Arizona 85004 Attorneys for Defendant Robert Marks Michael Keenan, Esq. Ward, Keenan & Barrett PC 3838 North Central Avenue, Suite 1720 Phoenix, Arizona 85012 Attorneys for Defendants Johnston, Palmer, and NATCA PHX
Paul Eckstein, Esq. Perkins Coie Brown & Bain, P.A. 2901 North Central Avenue Phoenix, Arizona Attorneys for Defendant NATCA National William Osborne, Esq. Marie Louise Hagen, Esq. c/o Perkins Coie Brown & Bain, P.A. 2901 North Central Avenue Phoenix, Arizona Attorneys for Defendant NATCA National Marguerite L. Graf, Esq. c/o Perkins Coie Brown & Bain, P.A. 2901 North Central Avenue Phoenix, Arizona Attorneys for Defendant NATCA National
[x] I hereby certify that on January 8, 2009, I served the attached document by first class mail on the
Honorable G. Murray Snow, United States District Court of Arizona, Sandra Day O’Connor U.S.
Courthouse, Suite 622, 401 West Washington Street, SPC 80, Phoenix, Arizona 85003.
/s/ Roselyn Mosbrucker
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INDEX OF EXHIBITS to:
Plaintiff’s Response to Defendant NATCA’s Motion to Dismiss
Exhibit A Two articles published on Defendant Carr’s website. Exhibit B Color-coded copy of select provisions of the FAA PMS, showing those
phrases quoted by NATCA, those key phrases ignored by NATCA, and the method with which NATCA has rearranged the language.
Exhibit C Select Chapters of the FAA-NATCA Collective Bargaining Agreement.
EXHIBIT A
A Fate Worse Than Death, Part One
Stories abound of FAA mismanagement and incompetence, and any one of us can get tunnel vision under the kind of working environment the FAA has fostered under the lack-of-leadership and responsibility of one Marion C. Blakey.
I cannot possibly catalog all the wrongdoing for you as I only have a couple decades left on this earth, but I have found a calling in reporting to you those I can. Admittedly, some of the stories are more dramatic than others. Some of the stories make better tales than others. And some of the stories...well, they just hurt worse than others.
This is one of those stories. It will be told in two parts, today and tomorrow. After you read Part One, you are going to want to throw up. I urge you instead to forward it to friends, neighbors and others who still think you have it made, who still think it's just about the contract, who still think it's the employee's fault.
Let us pull back for a moment and put the last few years in perspective not just from our working environment but from the way the FAA is treating human beings. Real, live people with families, hopes, dreams, responsibilities, and in many cases children counting on us to make a living while providing the opportunity for a better life than we have.
Under the current Administrator, just to tick off a few points:
--imposed work and pay rules under an ignorant misapplication of law and Congressional intent that are an insult to every air traffic controller in the country, a misapplication of law that a wide, bipartisan majority of the Congress voted against last year and is hell-bent on overturning this year.
--our jobs have been trivialized to the point that she compared us to Maytag repairmen, sitting around getting paid with nothing to do. Marion Blakey has shown utter contempt for her workers in the press and in the Congress.
--academy pay was cut to less than $9 an hour, per diem payments (which let a person eat) were eliminated, and most travel expenses were placed on the backs of those least able to pay but most needed to give their all for this career.
--a dozen controllers were fired in the largest mass termination since the 1981 PATCO action. Their sin? Not checking ONE box correctly on a confusing form with over a hundred questions. And remember: this particular injustice was so grave, so egregious, so wrong, that when the FAA had finished putting on the finest case their money and lawyers could buy---
NATCA rested without calling a SINGLE witness or admitting a SINGLE piece of evidence. NATCA was confident that the FAA's witnesses had not only perjured
themselves, but made the union's case for them. And when the smoke cleared, the arbitrator overturned the FAA's unjustified actions and put every single one of those men back to work with back pay.
Every.
Single.
One.
This was just before Christmas, 2005, and this righteous decision enabled our brethren to save homes, college educations, marriages, and have a well deserved but late Christmas. They were able to pull their lives back from the brink, to yank victory from the abyss the agency had thrown them into. After reading this story you will know---they were the lucky ones. Other employees who were mistreated, harassed and mentally tortured by Marion Blakey's FAA were not so fortunate. Their stories don't end so well.
With this background in mind I want to refocus your attention on something that took place in Phoenix and ask your indulgence as I tell this story. The story begins several years ago and will take me two days to tell, but the ending is ripped right out of current events. What I am about to report as a journalist will be reconstructed, to the best of my ability, exactly as it was recorded in official EEOC decisions, and in communication with myself, former Western Pacific Regional Vice President Bob Marks, and members of the PHX and P50 (Phoenix TRACON) locals.
NATCA Member Linda Peterson went to PHX Tower to train. She was not a favorite of management. She did check out at the facility, but was then subjected to scrutiny beyond belief by a supervisor named John Gilding. She filed an EEOC complaint. She was decertified on the basis of an alleged communication that took place which Supervisor John Gilding "heard."
Other witnesses said the communication was fine, but this particular supervisor decertified a qualified, competent controller WITHOUT LISTENING TO THE RECORDING OR EVER HEARING THE COMMUNICATION FIRSTHAND.
The supervisor then decided to take it a step further. An impromptu quiz was administered to her. I never had an impromptu quiz given to me in 29 years of federal service, and I never heard of one being given, or knew of someone who took one. From the decision:
--Complainant provided evidence during the hearing which established that Mr. Gilding did not administer the impromptu verbal quiz to any male controllers during the relevant time period (July 1999). I find that this evidence clearly demonstrates that Complainant was singled out and required to take the impromptu verbal quiz and that Mr. Gilding did not routinely utilize this method of ascertaining the knowledge base and skill level of his subordinates during the relevant time period.
--Complainant and various witnesses, all testified that they were not aware of any controller other than the Complainant who had been decertified based on a "non-operational" error. I find that the Agency did not provide specific evidence to refute their testimony on this point. I also find that this evidence supports the Complainant's testimony that she was singled out for harassment by Mr. Gilding.
--Complainant provided a significant amount of evidence which demonstrated that Mr. Gilding possessed a bias against women.
--testified during the hearing that Mr. Gilding told them that, "women controllers do not move traffic well."
--testified that Mr. Gilding referred to Complainant as a *"b**ch" and a "c**t" during a meeting in August 1999.
Other quotes from the decision, that Mr. Gilding said in the presence of others:
"That's what the tower needs, another woman controller who can't do the job."
"She has so little self esteem in her appearance that she had to have her breasts enhanced..the only way she would succeed is because she is a woman with big breasts."
Now lets talk about credibility, and the obligation to be as truthful as possible at all times during an official investigation. From the decision,
"Based on the demeanor of the witnesses during the hearing, I find that their testimony regarding Mr. Gilding's derogatory gender based statements are credible."
"In contrast, based on Mr. Gilding's testimony during cross examination and my observation of his demeanor, I do not find that his denials regarding the derogatory gender based statements are credible."
In the hearing, when Mr. Gilding was asked about the statements attributed to him by numerous witnesses, he was vague and evasive, and constantly answered he did not recall making the comments, or that he didn't know if it was possible or not he made them. Remember the comments were all made between July and September of 1999. Back to the decision:
"During the hearing Mr. Gilding's recollection of the events that occurred between July and September 1999 was excellent and he was able to provide detailed information regarding the specific reasons for Complainant's decertification and placement on remedial training. I do not find his testimony that he could not recall whether he made the above mentioned derogatory gender based statements about the complainant during the relevant time period are credible. I further find that his reluctance to provide a definite "yes" or "no" response to questions about such statements further undermined his credibility."
So, Mr. Gilding's memory was perfect when it came to supporting his version of the story, but he suddenly suffered from amnesia when he was rightfully called out on the comments he made about Linda, and the names he called her. The administrative law judge found him not credible. In other words, he was lying under oath.
And the icing on the cake:
"I specifically find that Mr. Gilding made the above-mentioned derogatory gender based comments regarding the complainant. I also find that these comments clearly demonstrate that Mr. Gilding possessed a bias against the Complainant because she is a woman. Based on the preceding analysis, I find that Complainant has demonstrated a prima facie case of gender based harassment. The Agency must now demonstrate that there is no basis to impose liability."
The EEOC Administrative Law Judge and eventually the Equal Employment Opportunity Commission (EEOC) in Washington, DC, upheld the findings against all FAA appeals, and Marion Blakey finally dropped her objections. Six figures were paid, the FAA was ordered to reconsider their decision not to discipline the supervisor, and that was that.
The EEOC Case Number is 350-2000-08328X, the Agency Case Number is DOT 6-00-6032. The case decision was originally transmitted on January 29, 2004. The FAA rejected the decision, and the EEOC then ordered the FAA to comply in September, 2005. These are facts, and they are absolutely incontrovertible.
What an amazing vindication! Like our brothers in New York you would think, truly justice was served and the FAA would respect the rule of law and abide by this decision. To quote from a February 10, 2003 reply to a Hotline call a full year before the decision, the Air Traffic Division Manager John Clancy said, "While we acknowledge we had differences, Ms. Peterson exercised her administrative options in accordance with law, rule, and regulation." Harumph, Harumph. What a load from that toad. Yes, she did, John. She took your punk-ass agency to court. And those options resulted in a decision against the FAA.
Tragically, Linda was not able to celebrate this hard won victory. You see, the working environment was so bad at the tower that two years earlier someone had defaced the obituary of Linda's mother that was posted in the facility. How unspeakably cruel do you have to be to do that?
Additionally, someone had scrawled her operating initials on the inside of the tower elevator doors after she went forward bravely with her complaint, so that every time she went to work, they were staring back at her on the ride to the cab. The FAA, of course, never removed the graffiti.
Linda was a suffering soul, and after all the issues with fighting the FAA for years she succumbed to depression. Linda had a bad day on January 12, 2003, and with the specter of a quick turnaround back to the midnight shift that evening, she left early.
Linda Peterson drove home, her mind no doubt racing. She had heard nothing about her case, and every day at work she was probably forced to mentally relive the way the FAA had treated her.
She arrived at her driveway just as she arrived at the end of her hope. Linda Peterson drove up to her garage, raised the door, drove in, and closed it.
She left her car running.
Her housekeeper found her the next day.
Tomorrow: A Fate Worse Than Death, Part Two
A Fate Worse Than Death, Part Two
After Linda Peterson took her own life, the facility came apart. Many of Linda’s co-workers were witnesses in her EEO case and were intimately familiar with what had happened over the years.
Linda's co-workers and friends were on the one hand livid over the fact that the FAA had done nothing to stop the harassment, and on the other racked with guilt, as anyone in their situation would be.
You can imagine the thoughts...that maybe if some of them had stood up to the harassment they received from the same supervisor, Linda might still be alive. That maybe if they had come forward, or said something, or done something... It was awful. The supervisor was quietly moved out of the tower and booted upstairs, to the Western Pacific Regional Office in Southern California.
It was about one year later that the official decision in this case came down, and it seemed that our sister could finally rest in peace. Her allegations were thoroughly and impartially investigated, she was vindicated, the supervisor was found to be not credible, the FAA was chastised for its lack of action to fix the working environment, and now maybe things could move forward.
At this point, you would expect the FAA to respect the rule of law and the memory of their dead employee. At this point you would expect the agency to show a modicum of integrity, a shred of decency, a micron of compassion. You would be wrong.
Shortly after the decision came out, the FAA sprang into action. NATCA Western Pacific Regional Vice President Bob Marks was contacted and told that the supervisor involved in Linda's harassment was going back to Phoenix Tower, to his original position, in order to show support for him. Bob was further told that it was "a Headquarters decision," and that no one could do anything about it. Bob and other NATCA activists went ballistic at this possibility. They raised the ante, fought the agency at every turn, and with the permission of Linda's family they prepared to go public to the media concerning the story. The FAA relented, and the offending supervisor was left in LA.
Remember the part about the FAA having to prove they shouldn’t be held liable? They swung into action there, too, and squirmed and wiggled this way and that to avoid their responsibilities.
Your tax dollars went to pay for an FAA contracted forensic psychologist whose SOLE job was to engage in character assassination of a woman who was no longer alive to defend herself. His job? Smear Linda, and reduce the cash cost of damages.
Linda’s father took her place in the case, and was subjected to having to hear this hired goon try and destroy any shred of dignity his late daughter had. The FAA tried to evade responsibility by destroying her in front of her still grieving father.
What kind of human beings are these? This story should once and for all change the way we look at those currently in leadership at the FAA. Their efforts failed---AGAIN. They appealed it and failed---AGAIN. Eventually and finally, the FAA Administrator's team gave up on their efforts to ensure Linda’s loved ones and co-workers suffered as much as possible. Damages were assessed against the FAA which eventually reached into the low six figures.
The supervisor never did return to the tower as originally threatened, and remained at the Regional Office in Los Angeles. This was a man who lied under oath and manipulated the Training Order in order to harass and intimidate a subordinate woman...some say to death.
His feelings and biases about women in the workplace are now part of the official record in this case. The FAA can no longer claim innocence or ignorance. The FAA cannot close ranks around their despicable lout. The FAA is on full, complete written notice about this guy. They paid cash money, big time, to try and wash his stain out of their agency.
Amazing, isn't it? The FAA fires twelve of us for not checking a box on a form. They claimed in court that this heinous form-filling act was dishonesty, which they said strikes so severely at the heart of the employer-employee relationship that termination is the only option.
And yet---here you have a supervisor lie under oath, call women terrible names, contribute to a culture and a working environment that was brutal, unlawful and in retrospect may have contributed to a poor woman's demise, and he gets booted upstairs to the Regional Office in LA. He skates away, scot-free.
Last month, NATCA at Phoenix Tower had occasion to write their Facility Manager concerning Mr. Gilding, and their letter reads in pertinent part:
"Before Mr. Gilding was given a job in the Western-Pacific Region (the memorandum informing the bargaining unit of this action was dated August 27, 2003), NATCA had several grievances against Mr. Gilding for creating a hostile work environment at PHX.
Just in case you and the FAA need a refresher course in Mr. Gilding’s history of superior abuse, I have attached several documents (not everything because it would be entirely too large)including the decisions against the Agency for which Mr. Gilding was acting. I will also include in the following paragraphs some additional information concerning Mr. Gildings conduct while a supervisor at PHX.
On January 18, 2000 a bargaining unit employee filed a formal EEO complaint against Mr. Gilding for harassment and discrimination.
On February 23, 2003 Mr. Gilding had a meeting with a bargaining unit employee concerning possible discipline. At this meeting Mr. Gilding called another supervisor into the meeting to act as a witness while not affording the employee any type of representation. This was a violation of the employee’s rights. Less than a week before this same employee had filed an informal grievance with the assistant manager for operations at PHX accusing Mr. Gilding of harassing the employee.
A grievance was filed on February 27, 2003 which showed Mr. Gilding was discriminating against a Hispanic male and a Black male while not treating his “buddy” White male the same.
In a letter given to you by NATCA, the following information was given to you due to the fact Mr. Gilding continues to fail to adhere to his responsibilities and abuse his authority as a supervisor and continues to harass, intimidate, discriminate, and treat employees at Phoenix Tower unfairly.
1) August 1999, decertification of Linda Peterson leads to an EEO complaint being filed by Ms. Peterson against Mr. Gilding
2) November 1999, Mr. Gilding watches an operational error occur without taking action
3) June 2000, Mr. Gilding attempts to charge an individual with 8 hours of AWOL
4) December 2000, Mr. Gilding coordinates, then covers up an operational error requiring a hotline call
5) June 2001, Mr. Gilding made threatening remarks towards a potential witness in the pending Peterson EEO case [for which Mr. Gilding did not receive the proper penalty under the Conduct and Discipline Order—which states, #52 Reprisal or retaliation action against a complaint, representative, witness or other person involved in an EEO investigation, proceeding, hearing or other agency process (e.g. Accountability Board). First offense by a supervisor: 5-30 day suspension to downgrade and/or removal from supervisory position.
6) Summer 2001, several issues with Mr. Gilding not addressing requests in a timely manner on the Phoenix Tower daily worksheets and then when instructed by you to address the requests he is suppose to address, he maliciously denies all requests no matter their merit
7) January 2002, employee request to be removed from Mr. Gilding’s crew due to harassment by Mr. Gilding
8) July 2002, Mr. Gilding meets with two employees to explain why he is not in the tower cab very often
9) July 2002, Mr. Gilding attempts to blame a controller for a pilot deviation
10) August 2002, Mr. Gilding is improperly assigning CIC duties
11) August 2002, Mr. Gilding, purposely, is illegally recording conversations in the tower cab utilizing the “RB” button [Per the Conduct and Discipline Order 215b. FAA employees, in the conduct of their official duties, may not use secret recording or monitoring equipment of any kind or aid in or ignore the improper use of such equipment.]
12) August 2002, Mr. Gilding discriminates against two employees by wanting the full punishment for them while trying to get his “buddy” out of trouble when all three employees were accused of leaving the facility early
13) January 2003, Mr. Gilding has a meeting with his crew intimidating them and ultimately causes the flow requested to have to be changed whenever he is on duty
14) February 2003, CIC issues again with Mr. Gilding
15) February 2003, Mr. Gilding attempts to neglect his supervisory responsibilities by having a CPC call in overtime
16) February 2003, Discriminates and abuses his authority against an employee in the assignment of work
17) February 2003, Mr. Gilding lectures a supervisor in the ways in which Mr. Gilding wants the operation handled and employees treated [the supervisor disagrees vehemently with Mr. Gilding]
18) April 2003, Mr. Gilding informs his crew he is going to be recording conversations in the cab [in direct violation of laws, regulations, rules and/or the Conduct and Discipline Order].
On November 4, 2004 an EEOC Administrative Judge found the Agency (through Mr. Gilding’s actions) was guilty of discrimination on the basis of gender.
On September 21, 2005 the EEO Commission upheld the Administrative Judge’s decision and further stated, “The agency will consider taking disciplinary action against the supervisor for his conduct which was found to be discriminatory. The agency shall report this decision. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline.”
“Commission regulations state that each agency shall take appropriate disciplinary action against employees who engage in discriminatory practices.” What actions were taken against Mr. Gilding?
In addition to these past grievances, one only needs to talk to the minorities who are or who were at PHX during Mr. Gilding’s tenure as a supervisor to realize the extent of his discrimination, harassment and intimidation. An individual who was a supervisor during the same time period relayed a story of how Mr. Gilding was leaving for vacation and pointed to three individuals on the schedule and told that supervisor not to approved anything for those “fu*kheads.”
And why did Phoenix NATCA have occasion to write their Facility Manager last month?
Because the FAA had just announced a new Assistant Manager for Training at Phoenix Tower/TRACON: John Gilding.
Yes, you read that right: The man who used the Training Order to harass a subordinate, the supervisor with the 18-plus complaints against him, the supervisor the agency paid big money to cover up, is now in charge of all training in Phoenix. He was quietly moved back to the Phoenix area just a few weeks ago, where he maintained the house he never sold. He must have known he was eventually coming back.
Resist the urge to vomit, and instead email the FAA Administrator at
and weigh in on her tacit approval of this grossly inappropriate personnel move...the promotion of this miscreant, and his transfer back...to the scene of the crime.
EPILOGUE:
New Assistant Manager for Training Gilding has already participated in at least one training review board. The developmental controller is a military veteran and a new hire, straight into Phoenix, and was struggling on Clearance Delivery. (By the way, Phoenix is way too busy for a new hire, and the agency is idiotic beyond belief to put this kid in one of the busiest air traffic control towers in the world.)
Mr. Gilding asked the young man what he thought his problem was. The trainee replied that he thought he was transposing call signs.
Mr. Gilding then shocked everyone in the room by saying words to the effect of, "Do you know you can kill hundreds of people by transposing call signs? You can kill people." His manner was reminiscent to those who saw it...reminiscent of the last time John Gilding had supervised others in Phoenix.
The developmental was shaken, his confidence shattered. He is now exploring other employment opportunities. He isn't sure he wants to continue in the FAA as an air traffic controller.
EXHIBIT B
Legend: Provision Quoted by NATCA Key Provision Ignored by NATCA NATCA’s Description of the FAA Personnel Management System: “[Plaintiff] could have filed claims under the CSRA, as incorporated into the FAA PMS, and/or the MSPB, including for alleged or improper ‘willful[] obstruc[tion]’ by any FAA employee with his employment as an FAA supervisor, for ‘tak[ing] or fail[ing] to take any…personnel action…[that] violates any law or regulation…concerning the merit system principles…’ and for failing to take ‘proper regard for [his] privacy.’”
VII. Merit Principles
The FAA personnel management system shall be implemented consistent with the following merit system principles:
(a) Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a workforce from all segments of society; selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition, which assures that all receive equal opportunity.
(b) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, sexual orientation, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
(c) Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector; appropriate incentives and recognition should be provided for excellence in performance.
(d) All employees should maintain high standards of integrity, conduct, and concern for the public interest.
(e) The Federal workforce should be used efficiently and effectively.
(f) Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
(g) Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
(h) Employees should be:
(i) protected against arbitrary action, personal favoritism, or coercion for partisan political purposes; and
(ii) prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.
(i) Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences:
(i) a violation of any law, rule, or regulation; or
(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
VIII. Prohibited Personnel Practices
(a) Any FAA employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority:
(i) discriminate for or against any employee or applicant for employment, on the basis of:
race, color, religion. sex, or national origin, as prohibited under Section 717 of the Civil Rights Acts of 1964 (42 U.S.C. 2000e-16);
age, as prohibited under Sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);
sex, as prohibited under Section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 (d));
handicapping condition, as prohibited under Section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or
marital status, sexual orientation, or political affiliation, as prohibited under any law, rule, or regulation;
(ii) coerce the political activity of any person (including the providing of any political contribution or service) or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity;
(iii) deceive or willfully obstruct any person to withdraw with respect to such person's right to compete for employment;
(iv) influence any person to withdrawal from competition for any position for the purpose of improving or injuring the prospects of any other person for employment;
(v) grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner
of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment;
(vi) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of:
any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences: a violation of any law, rule or regulation; gross mismanagement, a gross waste of funds, an abuse of authority; or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law, and if such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs; or
any disclosure to the Special Counsel or to the Inspector General of an agency, or another employee designated by the head of the agency to receive such disclosures of information which the employee or applicant reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
(vii) to take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of:
the exercise of any appeal, complaint, or grievance right granted by law, rule, or regulation;
testifying for or otherwise lawfully assisting of any individual in the exercise of any right referred to in subparagraph VIII (a);
cooperating with or disclosing information to the Inspector General of any agency, or the Special Counsel, in accordance with applicable provision of the law; or
for refusing to obey an order that would require the individual to violate a law;
(viii) discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others; except that nothing in this paragraph shall prohibit an agency from taking into account, in determining suitability or fitness, any conviction of the employee or applicant for any crime under the laws of any State, of the District of Columbia, or the United States; or
(ix) take or fail to take any other personnel action if the taking of or failure to take such action violates any law, rule, or regulation, implementing or directly concerning, the merit system principles contained in this paragraph.
(b) Paragraph VIII (a) shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.
(i) The head of each line of business or staff organization shall be responsible for the prevention of prohibited personnel practices, for the compliance with and enforcement of applicable civil service laws, rules, and regulations, and other aspects of personnel management. Any individual to whom the head of a line of business or staff organization delegates authority for personnel management, or for any aspect thereof, shall be similarly responsible within the limits of the delegation.
(ii) This section shall not be construed to extinguish or lessen any effort to achieve equal employment opportunity through affirmative action or any right or remedy available to employee or applicant for employment in the civil service under:
Section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), prohibiting discrimination on the basis of race, color, religion, sex, or national origin;
Sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), prohibiting discrimination on the basis of age;
Section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 (d)), prohibiting discrimination on the basis of sex;
Section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), prohibiting discrimination on the basis of handicapping condition; or
the provision of any law, rule, or regulation prohibiting discrimination on the basis of marital status, sexual orientation, or political affiliation.
EXHIBIT C
ARTICLE 3 RIGHTS OF UNION OFFICIALS
Section 1. Union officials who are elected or appointed to serve in an official capacity as a representative of the Union shall be granted, upon request, LWOP concurrent and consistent with elected terms of office or appointment. Each request by an employee for such LWOP shall be for a specified period and shall be certified by the national office of the Union. Section 2. It is understood that bargaining unit employees covered by this Agreement may, subject to the NATCA Constitution, serve in the capacity of National/Regional Vice President or Alternate Vice President. In the event an employee covered by this Agreement serves is such a capacity, he/she shall be granted eighty (80) hours of official time per pay period to perform the representational duties of the office. Section 3. Upon completion of a period of LWOP granted under Section 1 of this Article, the Union official shall be returned to duty at the facility to which he/she was assigned prior to his/her assuming LWOP status. In the event there is a reduction in force at that facility while the Union official is in a LWOP status, the Union official's future duty status and duty location shall be determined in accordance with Article 43 (Reduction In Force) of this Agreement. By mutual agreement between the Union official and his/her employing FAA region, he/she may be returned to a duty station other than the duty station to which he/she was assigned prior to his/her assuming LWOP status. Section 4. Upon written notice to the Employer that need for LWOP granted under Section 1 of this Article has ended, Union officials shall be permitted to return to duty prior to the termination date of their LWOP status. Such request for return to duty shall be certified by the national office of the Union. Section 5. An employee who is placed on LWOP while acting in an official capacity on behalf of the Union shall be entitled to all such continued benefits, including participation in the Federal retirement program, as provided in applicable laws and regulations.
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ARTICLE 4 EMPLOYEE RIGHTS
Section 1. Each employee of the bargaining unit has the right, freely and without fear of penalty or reprisal, to form, join and assist the Union or to refrain from any such activity, and each employee shall be protected in the exercise of this right. Except as otherwise expressly provided in the Civil Service Reform Act of 1978, the right to assist the Union extends to participation in the management of the Union and acting for the Union in the capacity of Union representative, including presentation of its views to officials of the Executive Branch, the Congress, or other appropriate authority. The Employer shall take the action required to assure that employees in the bargaining unit are apprised of their rights under the Civil Service Reform Act of 1978 and that no interference, restraint, coercion, or discrimination is practiced within the Agency to encourage or discourage membership in the Union. Section 2. An employee's off-the-job conduct shall not result in disciplinary action, unless such conduct hampers his/her effectiveness as an employee or affects the public's confidence in the Agency. Section 3. No employee shall have disciplinary action taken against him/her because of an occasional debt complaint, unless it is established that the employee's non-payment of a just debt has or will have a harmful effect on the performance of his/her duties, or the ability of the Employer to perform its assigned mission. The Employer shall not assist a creditor or process server in any manner, except as required by law. Section 4. Employee participation in charitable drives and U.S. Savings Bonds campaigns is voluntary. The Employer shall not schedule mandatory briefings/meetings to discuss charitable drives/US Savings Bond participation. Employees will be voluntarily excused from any portion of a briefing/meeting which discusses these subjects. Solicitations may be made, but no pressure shall be brought to bear to require such participation. Section 5. The Agency’s nepotism policies shall be uniformly administered throughout the bargaining unit. Both Parties recognize that maintaining family integrity is desirable. In those instances when an employee's spouse holds or accepts a position in another FAA facility, the Employer will provide priority consideration to the bargaining unit member for vacant positions:
a. in any bargaining unit covered by this Agreement; b. at or near the spouse’s location; and c. at the same or lower level.
The front of each such application must be clearly marked by the employee: “filed under Article 4, Section 5, NATCA/FAA Agreement for position in (routing symbol) organization.” The Employer retains the right to fill vacancies from other available sources. In that such moves are primarily for the convenience or benefit of the employee, additional travel and transportation costs shall not be allowed for the spouse beyond those he/she would be entitled to as a family
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member. Section 6. The Employer shall not take or fail to take any personnel action with respect to any employee as a reprisal for the exercise of any appeal right granted by law, rule, regulation or the terms of this Agreement. Section 7. Employees shall not be subjected to prohibited personnel practices as defined in 5 USC 2302. Section 8. The Employer shall not take any personnel action against any employee or fail or refuse to effect, in a timely manner, any personnel action related to any employee as a reprisal for the employee's disclosure of information which the employee reasonably believes indicates a violation of any law, rule, regulation, mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to the public health or safety. Section 9. Employees covered by this Agreement shall have the protection of all rights to which they are entitled by the Constitution of the United States. Section 10. In the performance of his/her official duties, or when acting within the scope of his/her employment, the employee is entitled to all protections of the Federal Employees Liability Reform and Tort Compensation Act of 1988 (P.L. 100-694) regarding personal liability for damages, loss of property, personal injury, or death arising or resulting from the negligent or wrongful act or omission of the employee. Section 11. There shall be no prohibition on the approval of an employee’s LWOP request based solely on the employee having other types of leave accrued.
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