ATC Privatization & Labor
Questions About Unions & the New Corporation
Some of the statements being made about ATO employees and corporatization are truly bizarre. For example, Rep. Todd Rokita (R, IN)—the only Republican on the House T&I Committee who voted against corporatization this year–was quoted in Politico (June 27th) saying, “A true privatization effort would significantly cut federal workers. But this bill does not reduce the regulatory state or the number of workers.” Say what? How does taking 33,000 people off the federal payroll not reduce the number of federal workers? Then there was this comment from Rep. Tom Cole (R, OK), circulated to FAAMA members by Lisa Bercher, president of the Headquarters Chapter. Referring to last year’s corporatization bill, Cole wrote that it was an effort “to privatize the FAA and replace the federal workforce with private contractors.” Don’t these people read the bills they vote on?
With the 2017 T&I bill close to reaching the House floor in September, Bercher has been ramping up efforts to have FAAMA members call their “Congressmen” in opposition to “privatization,” using all the rhetoric from Ed Bolen and AAAA. Similar claims appeared in several articles in the July/August issue of FAAMA’s Managing the Skies. In an editorial, “ATC Privatization and You,” Executive Director Louis Dupart issued the following warning: “Who will suffer? You, personally, and the American public generally, as thousands of talented managers and employees will opt to retire rather than risk being subject to a corporate board on which they have no voice that is capable of changing their lives and their future.”
Let’s pause and think about the implications of that statement. It is true that after the transition, ATO employees will no longer be civil servants. That means they can be held accountable for results in ways that are not possible under the civil service system. As the Wall Street Journal noted in a recent editorial, “in the federal government, it’s nearly impossible to fire anyone,” thanks to the obstacle course known as the Merit Systems Protection Board. Being held accountable for results has the upside of merit-based pay increases—and the downside of being let go. That is an important step toward rebuilding the organizational culture of the ATO to be an innovative, customer-focused high-tech service business.
And the likelihood that significant numbers of ATO employees will be uncomfortable in the new structure and will opt to retire is another big plus for corporatization. Voluntary retirement of those not well-suited to an innovative, results-focused corporate culture will clear the way for recruiting the kinds of engineers, software writers, and program managers who have departed FAA for the private sector over the past decade or so but are still in the workforce, many of whom would jump at the chance to help remake the ATO as the world’s largest and best air navigation service provider. I know a number of such people; they are long-time subscribers to this newsletter.
There is no one in the universe who has studied privatization/ corporatization/federal non-profit charterization more than Robert Poole. He has researched and written papers of such volume that they would complete several PHD dissertation requirements. All are well written, fully documented and conclusive of the proposition that privatization is THE answer. His most recent Newsletter discusses labor transition issues.
Having read the text of the American Air Navigation Services Corporation (AANSC) legislation, here are some reasonable questions [posed by a skeptical pessimist] to ask about unions and the new corporation [NOTE: this analysis reads the language of the bill literally and also assumes that any ambiguity can be read to permit actions which the drafters may not have contemplated, i.e. suggesting that more precise language should be considered]:
• #146 points to the Merit Systems Protection Board as an obstacle course to firing of individuals deserving of termination. All federal employees are protected by that Board, but concomitantly, all civil servants are prohibited from striking against the US Government (5 USC § 3333, 7311); in fact, it is a crime to do so (18 USC § 1918). Once corporatized, NATCA (which supports the concept) would be able to strike and shut down the ATC system. That’s leverage with which only the federal government or a private entity with protection against a labor action can effectively deal.
• Newsletter #146 states that “NATCA (about 15,000 members) favors corporatization, hoping for technology and working conditions like their counterparts have at Nav Canada.”
• Would NATCA support something like the consolidation of the 22 ARTCCs into one or two facilities, something for which many have argued for years?
• Would AANSC’s Board continue to consolidate in face of the union’s opposition?
• With NextGen and its increased reliance on automation, the jobs at centers and towers will be radically changed.
• Greater efficiency may translate to fewer positions; will NATCA support such a private sector rational decision?
• En Route positions with the new technology will not really “control” traffic. New job specifications may make some of the existing controllers not suited for this future position. Would NATCA support that appropriate management action?
• The details of the 21st Century Aviation Innovation, Reform, and Reauthorization Act (21st Century AIRR Act) reveal some very interesting labor provisions:
• § 90303. Role of Secretary in transferring air traffic services to Corporation
• IN GENERAL. —As appropriate, and except as otherwise provided, the Secretary shall manage and execute the transfer of operational control over air traffic services pursuant to section 90302(a) and any related transition processes and procedures.
• NONDELEGATION. —Except as otherwise provided, the Secretary may not delegate any of the authority or requirements under this subtitle to the Administrator.
• That means in deciding who and what is transferred to AANSC, the senior FAA executive would not be allowed to be involved in those negotiations.
• Not seem significant—read the next point. ↓
• The 21st AIRR proposes (‘‘§ 90316. Transfer of Federal personnel to Corporation) who may participate in deciding which employees leave the FAA and go to AANSC; specifically
• (a)(1)“the Secretary, after meeting and conferring with the CEO and representatives of the labor organizations recognized under section 7111 of title 5 as exclusive representatives of FAA employees, shall commence a process to determine, consistent with the purposes of this subtitle, which activities and employees [the choice of this word means that individual employees may be subject to this discussion; if this is not the intention, DELETE EMPLOYEE], or categories of employees, of the FAA shall be transferred to the Corporation on or before the date of transfer…”
– (a)(2) The Secretary shall—
(A) not later than 180 days prior to the date of transfer, complete the determination of which activities, employees, or categories of employees shall be transferred to the Corporation under paragraph (1);
(B) upon completing the determination, notify the CEO, the labor organizations recognized under section 7111 of title 5 as exclusive representatives of FAA employees, and all affected employees of such determination; and
(C) on or before the date of transfer, transfer such activities, employees, or categories of employees.
• So, a skeptical, pessimistic person might read that the word “employee would allow NATCA, without the input of anyone familiar with the working relations at the FAA that the union might recommend those WHO HAVE been most in line with NATCA’s positions will be recommended to go to AANSC; while those who showed any sympathy with the old management will most likely remain at FAA (i.e. be offered voluntary retirement).
• Returning to the earlier point that NATCA will be able to lawfully [under 21st AIRR current language] strike, how long do you think it will take before, the AANSC is faced with its first strike threat?
• It has been argued for years that the ATC system is grossly understaffed. Given that, is it possible that one or more of the Board representatives will offer a motion to increase the employment in towers/centers/TRACONs? If that motion is voted down, one can easily postulate that the hand-picked employees will learn that their demand has been rejected by their new Board?
• NATCA’s job is to seek increases in its members’ compensation. The AANSC Board may be under the impression that one of its missions is to lower overall operating expenses. It is quite possible that salaries will not be increased without contractual obligations for increased productivity and/or reduced staffing NATCA may have to choose between increased compensation and reduced staffing (membership)!
[Efficiencies from better acquisition actions will not be realized for years and the improved cash position from bonding will be burdened by interest payments.]
Corporatization is a great concept. Nothing so incentivizes behavior as clear understanding of and support for goals, driven by a bottom line. A corporate board, in contrast to Congress, could establish that direction. The FAA has suffered from years of conflicting (sometimes parochial) guidance from its 535 member (constantly changing) Board, not the least of which inconsistent funding.
The cadre of ATO employees have been conditioned by the OPM and MSPB rules. Their culture has not been driven by strict economic and personnel rules. The transition to AANSC will be difficult for them; habits and expectations developed over a long career may not accept management from a Board which has both safety and financial considerations as mandates. The chosen AANSC employees may resist this new regime. To expect otherwise would defy human behavior; change is slowly accepted.
With strikes as a permitted union tool and an employee base filled hand selected NATCA supporters, labor problems are a risk unmentioned by the supporters of 21st Century AIRR. A union, which operates a national essential facility, does not follow the free market model. Is there some reason to expect otherwise?
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