FAA Knows it is Breaking the Law

By Transportation FOXBusiness

REUTERS/Patrick T. Fallon

New and explosive documents allege several senior Federal Aviation Administration managers are aware the FAA is “knowingly and willingly” breaking the law, committing fraud and ignoring warnings from the FAA’s own advisors to put a stop to it immediately.  A source inside the FAA says these practices over the last decade have cost taxpayers millions of dollars in wasted salaries and overtime.  At the center of the controversy is the contract with the union representing 15,000 FAA air traffic controllers, The National Air Traffic Controllers Association(NATCA) and how, “…taxpayer dollars are paying for NATCA salaries in a manner not authorized…” by Federal law.

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The documents obtained by FOX Business are being reviewed by the House Committee on Transportation and Infrastructure as well as the House Aviation Subcommittee. They include letters and papers from Former FAA Director of Labor and Employee Relations David Feder. As first reported by FOX Business, Feder resigned May 31st, after only six months on the job, telling members of the FAA executive steering committee, “I cannot stay at FAA and intentionally violate the law.”  

The FAA hired Feder in January 2015 to assist in its contract negotiations with NATCA. He has an extensive legal background having served 28 years in the Office of the General Counsel for the Federal Labor Relations Authority (FLRA) where he was appointed Deputy General Counsel in 1994. In 2003 Feder worked as Associate Commissioner of the Social Security Administration for Labor-Management and Employee Relations. He retired from public service in 2005. The FAA brought Feder out of retirement because of his experience dealing with unions and Federal agencies.  The FAA is preparing for contract negotiations which begin next year.  One of the documents obtained by FOX Business is a letter sent to the House Committee on Transportation and Infrastructure in which Feder writes he resigned after only six months on the job, “…because the only choice the FAA gave me was to knowingly, willingly and intentionally act inconsistent with the Federal sector labor law” or in other words, break the law.    

Feder’s FAA resignation letter, also obtained by FOX Business, indicates he had repeatedly informed the FAA’s 15 member executive steering committee that the current contract with NATCA violates Federal law and any new contract must be brought into compliance.  The Federal Service Labor Management Relations Statute allows the FAA to immediately nullify any contractual clause with NATCA that violates the law. But the documents obtained by FOX Business indicate members of the steering committee decided not to act, instead permitting several violations to persist which could possibly cost tax payers millions of dollars.  The documents obtained by FOX Business say the steering committee ignored Feder’s recommendation to take immediate action and, “As a result, the Agency will be knowingly willingly and intentionally continuing approximately 65 non-negotiable/illegal clauses into the future contract…I simply cannot be a part of the Agency intentionally continuing into the future known illegal contract clauses.”

Those clauses give the air traffic controllers union, NATCA, managerial powers which violate Federal law.  For example the current NATCA contract gives the authority to approve unexcused paid time off to union members, not managers, a violation of management’s rights under the Federal statute.  Another document obtained by FOX Business is titled “Information Paper No. 1.”  It appears to be a brief explaining the Federal Service Labor Management Relations Statute and says, “Even if an agency intends to waive these management rights, the Statute prohibits waivers.”  FOX Business has made several attempts seeking comment from the FAA on this and other matters but FAA press officers and managers have not returned phone calls, emails and refuse to take calls from FOX Business.


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The documents sent to the House Transportation Committee and obtained by FOX Business say the FAA has a great relationship with the air traffic controllers union, NATCA, because, “…the FAA in essence allows NATCA to co-manage the Agency by allowing agreements with NATCA as to how the FAA will exercise its reserved, non waiveable statutory management rights - decisions that Congress granted solely to Federal agencies and which cannot lawfully involve a union in the decision making process.” Another allegation concerns negotiated “official time” with NATCA.

Federal law allows union members to conduct union work on Federal time at taxpayer expense.  The amount of “official time” a union employee will conduct must be negotiated.  For instance if an employee makes one dollar a year, the union can negotiate a deal that 10% of the employees work time will be devoted to union activities.  That means ten cents of the employee’s salary will be paid by taxpayers even though the employee is conducting work for the union.  The remaining 90% of the time the employee works is called “duty time” in essence time worked performing the job for taxpayers.  

The documents obtained by FOX Business indicate the FAA has failed to negotiate and properly account “official time” and “duty time” with NATCA.  The FAA in 2012 reported “official time” granted to NATCA employees cost tax payers more than $10 million dollars.  But an FAA source says the agency intentionally underreports the true cost which may be much higher.  One of the documents obtained by FOX business includes a scathing indictment, “The FAA is currently committing a fraud against the Department of Transportation, the Office of Personnel Management and the Congress by knowingly, willingly and intentionally under reporting the amount of “official time” granted to NATCA representatives.”   FOX Business contacted NACTA spokesman Doug Church about the accusation. Church emailed, “We cannot offer a comment based on such limited information and questioning.”
The website fedsmith.com recently published an email Feder sent FAA employees upon his resignation in which he wrote, “FAA is of the view that it is proper to knowingly continue contract terms… in order to appease NATCA and to avoid NATCA opposition to FAA initiatives.”

One recent FAA initiative included changes to the air traffic controller hiring program. A FOX Business investigation “Trouble in the Skies” first exposed cheating and mismanagement within the program in a report broadcast May 20th. NATCA publicly opposed the FAA’s plan to change the hiring program but remained silent in 2014 when the FAA implemented those changes and lowered basic standards for air traffic control recruits.  NATCA has never publicly said why it changed its position but did call for an investigation of the hiring program after the FOX Business report aired and the chairman of the House Aviation Subcommittee demanded an investigation.  

The documents being reviewed by the House Committee on Transportation and Infrastructure as well as the Aviation Subcommittee indicate political motives may be at play inside the FAA.  In one such document Feder writes, “FAA simply believes it is somehow insulated from having to obey that Federal sector labor law. As noted in my resignation the FAA political and career leadership are more interested in not alienating NATCA, especially during an election year.” In that same document, Feder advises The Committee to investigate how the “FAA buys labor peace by allowing NATCA to co-manage the Agency” but so far no hearings have been scheduled.  When asked about the documents, a committee spokesperson told FOX Business, “Staff on the Aviation Subcommittee and T&I full committee including the counsels are reviewing them.”

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