49 U.S.C. § 40122

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 40122 - Federal Aviation Administration personnel management system

(a) IN GENERAL.-

(1) CONSULTATION AND NEGOTIATION.-In developing and making changes to the personnel management system initially implemented by the Administrator of the Federal Aviation Administration on April 1, 1996, the Administrator shall negotiate with the exclusive bargaining representatives of employees of the Administration certified under section 7111 of title 5 and consult with other employees of the Administration.

(2) DISPUTE RESOLUTION.-

(A) MEDIATION.-If the Administrator does not reach an agreement under paragraph (1) or the provisions referred to in subsection (g)(2)(C) with the exclusive bargaining representative of the employees, the Administrator and the bargaining representative-

(i) shall use the services of the Federal Mediation and Conciliation Service to attempt to reach such agreement in accordance with part 1425 of title 29, Code of Federal Regulations (as in effect on the date of enactment of the FAA Modernization and Reform Act of 2012); or

(ii) may by mutual agreement adopt alternative procedures for the resolution of disputes or impasses arising in the negotiation of the collective-bargaining agreement.

(B) MID-TERM BARGAINING.-If the services of the Federal Mediation and Conciliation Service under subparagraph (A)(i) do not lead to the resolution of issues in controversy arising from the negotiation of a mid-term collective-bargaining agreement, the Federal Service Impasses Panel shall assist the parties in resolving the impasse in accordance with section 7119 of title 5.

(C) BINDING ARBITRATION FOR TERM BARGAINING.-

(i) ASSISTANCE FROM FEDERAL SERVICE IMPASSES PANEL.-If the services of the Federal Mediation and Conciliation Service under subparagraph (A)(i) do not lead to the resolution of issues in controversy arising from the negotiation of a term collective-bargaining agreement, the Administrator and the exclusive bargaining representative of the employees (in this subparagraph referred to as the "parties") shall submit their issues in controversy to the Federal Service Impasses Panel. The Panel shall assist the parties in resolving the impasse by asserting jurisdiction and ordering binding arbitration by a private arbitration board consisting of 3 members.

(ii) APPOINTMENT OF ARBITRATION BOARD.-The Executive Director of the Panel shall provide for the appointment of the 3 members of a private arbitration board under clause (i) by requesting the Director of the Federal Mediation and Conciliation Service to prepare a list of not less than 15 names of arbitrators with Federal sector experience and by providing the list to the parties. Not later than 10 days after receiving the list, the parties shall each select one person from the list. The 2 arbitrators selected by the parties shall then select a third person from the list not later than 7 days after being selected. If either of the parties fails to select a person or if the 2 arbitrators are unable to agree on the third person in 7 days, the parties shall make the selection by alternately striking names on the list until one arbitrator remains.

(iii) FRAMING ISSUES IN CONTROVERSY.-If the parties do not agree on the framing of the issues to be submitted for arbitration, the arbitration board shall frame the issues.

(iv) HEARINGS.-The arbitration board shall give the parties a full and fair hearing, including an opportunity to present evidence in support of their claims and an opportunity to present their case in person, by counsel, or by other representative as they may elect.

(v) DECISIONS.-The arbitration board shall render its decision within 90 days after the date of its appointment. Decisions of the arbitration board shall be conclusive and binding upon the parties.

(vi) MATTERS FOR CONSIDERATION.-The arbitration board shall take into consideration such factors as-

(I) the effect of its arbitration decisions on the Federal Aviation Administration's ability to attract and retain a qualified workforce;

(II) the effect of its arbitration decisions on the Federal Aviation Administration's budget; and

(III) any other factors whose consideration would assist the board in fashioning a fair and equitable award.

(vii) COSTS.-The parties shall share costs of the arbitration equally.

(3) RATIFICATION OF AGREEMENTS.-Upon reaching a voluntary agreement or at the conclusion of the binding arbitration under paragraph (2)(C), the final agreement, except for those matters decided by an arbitration board, shall be subject to ratification by the exclusive bargaining representative of the employees, if so requested by the bargaining representative, and the final agreement shall be subject to approval by the head of the agency in accordance with the provisions referred to in subsection (g)(2)(C).

(4) COST SAVINGS AND PRODUCTIVITY GOALS.-The Administration and the exclusive bargaining representatives of the employees shall use every reasonable effort to find cost savings and to increase productivity within each of the affected bargaining units.

(5) ANNUAL BUDGET DISCUSSIONS.-The Administration and the exclusive bargaining representatives of the employees shall meet annually for the purpose of finding additional cost savings within the Administration's annual budget as it applies to each of the affected bargaining units and throughout the agency.

(b) EXPERT EVALUATION.-On the date that is 3 years after the personnel management system is implemented, the Administration shall employ outside experts to provide an independent evaluation of the effectiveness of the system within 3 months after such date. For this purpose, the Administrator may utilize the services of experts and consultants under section 3109 of title 5 without regard to the limitation imposed by the last sentence of section 3109(b) of such title, and may contract on a sole source basis, notwithstanding any other provision of law to the contrary.

(c) PAY RESTRICTION.-No officer or employee of the Administration may receive an annual rate of basic pay in excess of the annual rate of basic pay payable to the Administrator.

(d) ETHICS.-The Administration shall be subject to Executive Order No. 12674 and regulations and opinions promulgated by the Office of Government Ethics, including those set forth in section 2635 of title 5 of the Code of Federal Regulations.

(e) EMPLOYEE PROTECTIONS.-Until July 1, 1999, basic wages (including locality pay) and operational differential pay provided employees of the Administration shall not be involuntarily adversely affected by reason of the enactment of this section, except for unacceptable performance or by reason of a reduction in force or reorganization or by agreement between the Administration and the affected employees' exclusive bargaining representative.

(f) LABOR-MANAGEMENT AGREEMENTS.-Except as otherwise provided by this title, all labor-management agreements covering employees of the Administration that are in effect on the effective date of the Air Traffic Management System Performance Improvement Act of 1996 shall remain in effect until their normal expiration date, unless the Administrator and the exclusive bargaining representative agree to the contrary.

(g) PERSONNEL MANAGEMENT SYSTEM.-

(1) IN GENERAL.-In consultation with the employees of the Administration and such non-governmental experts in personnel management systems as he may employ, and notwithstanding the provisions of title 5 and other Federal personnel laws, the Administrator shall develop and implement, not later than January 1, 1996, a personnel management system for the Administration that addresses the unique demands on the agency's workforce. Such a new system shall, at a minimum, provide for greater flexibility in the hiring, training, compensation, and location of personnel.

(2) APPLICABILITY OF TITLE 5.-The provisions of title 5 shall not apply to the new personnel management system developed and implemented pursuant to paragraph (1), with the exception of-

(A) section 2302(b), relating to whistleblower protection, including the provisions for investigation and enforcement as provided in chapter 12 of title 5;

(B) sections 3304(f), to the extent consistent with the Federal Aviation Administration's status as an excepted service agency, 3308-3320, 3330a, 3330b, 3330c, and 3330d, relating to veterans' preference;

(C) chapter 71, relating to labor-management relations;

(D) section 7204, relating to antidiscrimination;

(E) chapter 73, relating to suitability, security, and conduct;

(F) chapter 81, relating to compensation for work injury;

(G) chapters 83-85, 87, and 89, relating to retirement, unemployment compensation, and insurance coverage;

(H) sections 1204, 1211-1218, 1221, and 7701-7703, relating to the Merit Systems Protection Board;

(I) subsections (b), (c), and (d) of section 4507 (relating to Meritorious Executive or Distinguished Executive rank awards) and subsections (b) and (c) of section 4507a (relating to Meritorious Senior Professional or Distinguished Senior Professional rank awards), except that-

(i) for purposes of applying such provisions to the personnel management system-

(I) the term "agency" means the Department of Transportation;

(II) the term "senior executive" means a Federal Aviation Administration executive;

(III) the term "career appointee" means a Federal Aviation Administration career executive; and

(IV) the term "senior career employee" means a Federal Aviation Administration career senior professional;

(ii) receipt by a career appointee or a senior career employee of the rank of Meritorious Executive or Meritorious Senior Professional entitles the individual to a lump-sum payment of an amount equal to 20 percent of annual basic pay, which shall be in addition to the basic pay paid under the Federal Aviation Administration Executive Compensation Plan; and

(iii) receipt by a career appointee or a senior career employee of the rank of Distinguished Executive or Distinguished Senior Professional entitles the individual to a lump-sum payment of an amount equal to 35 percent of annual basic pay, which shall be in addition to the basic pay paid under the Federal Aviation Administration Executive Compensation Plan; and

(J) subject to paragraph (4) of this subsection, section 6329, relating to disabled veteran leave.

(3) APPEALS TO MERIT SYSTEMS PROTECTION BOARD.-Under the new personnel management system developed and implemented under paragraph (1), an employee of the Administration may submit an appeal to the Merit Systems Protection Board and may seek judicial review of any resulting final orders or decisions of the Board from any action that was appealable to the Board under any law, rule, or regulation as of March 31, 1996. Notwithstanding any other provision of law, retroactive to April 1, 1996, the Board shall have the same remedial authority over such employee appeals that it had as of March 31, 1996.

(4) CERTIFICATION OF DISABLED VETERAN LEAVE.-In order to verify that leave credited to an employee pursuant to paragraph (2)(J) is used for treating a service-connected disability, that employee shall, notwithstanding section 6329(c) of title 5, submit to the Assistant Administrator for Human Resource Management of the Federal Aviation Administration certification, in such form and manner as the Administrator of the Federal Aviation Administration may prescribe, that the employee used that leave for purposes of being furnished treatment for that disability by a health care provider.

(5) PAID PARENTAL LEAVE.-The Administrator shall implement a paid parental leave benefit for employees of the Administration that is, at a minimum, consistent with the paid parental leave benefits provided under section 6382 of title 5.

(6) EFFECTIVE DATE.-This subsection shall take effect on April 1, 1996.

(7) REMOTE POSITIONS.-

(A) IN GENERAL.-If the Administrator determines that a covered position has not been filled after multiple vacancy announcements and that there are unique circumstances affecting the ability of the Administrator to fill such position, the Administrator may consider, in consultation with the appropriate labor union, applicants for the covered position who apply under a vacancy announcement recruiting from the State or territory in which the position is based.

(B) COVERED POSITION DEFINED.-In this paragraph, the term "covered position" means a safety-critical position, to include personnel located at contract towers, based in Alaska, Hawaii, Puerto Rico, American Samoa, Guam, the Northern Mariana Islands, and the Virgin Islands.

(h) RIGHT TO CONTEST ADVERSE PERSONNEL ACTIONS.-An employee of the Federal Aviation Administration who is the subject of a major adverse personnel action may contest the action either through any contractual grievance procedure that is applicable to the employee as a member of the collective bargaining unit or through the Administration's internal process relating to review of major adverse personnel actions of the Administration, known as Guaranteed Fair Treatment, or under section 40122(g)(3).

(i) ELECTION OF FORUM.-Where a major adverse personnel action may be contested through more than one of the indicated forums (such as the contractual grievance procedure, the Federal Aviation Administration's internal process, or that of the Merit Systems Protection Board), an employee must elect the forum through which the matter will be contested. Nothing in this section is intended to allow an employee to contest an action through more than one forum unless otherwise allowed by law.

(j) DEFINITION.-In this section, the term "major adverse personnel action" means a suspension of more than 14 days, a reduction in pay or grade, a removal for conduct or performance, a nondisciplinary removal, a furlough of 30 days or less (but not including placement in a nonpay status as the result of a lapse of appropriations or an enactment by Congress), or a reduction in force action.

49 U.S.C. § 40122

Added Pub. L. 104-264, title II, §253, Oct. 9, 1996, 110 Stat. 3237; amended Pub. L. 106-181, title III, §§307(a), Apr. 5, 2000, 308, Apr. 5, 2000, 114 Stat. 124, 126; Pub. L. 112-95, title VI, §§601, Feb. 14, 2012, 602, Feb. 14, 2012, 611, Feb. 14, 2012, 126 Stat. 109, 111, 117; Pub. L. 114-242, §2(a), (b), Oct. 7, 2016, 130 Stat. 978; Pub. L. 115-254, div. B, title V, §531, Oct. 5, 2018, 132 Stat. 3366; Pub. L. 116-283, div. A, title XI, §1103(c)(1), Jan. 1, 2021, 134 Stat. 3887; Pub. L. 118-63, title III, §342(b), May 16, 2024, 138 Stat. 1099.

EDITORIAL NOTES

REFERENCES IN TEXTThe date of enactment of the FAA Modernization and Reform Act of 2012, referred to in subsec. (a)(2)(A)(i), is the date of enactment of Pub. L. 112-95 which was approved Feb. 14, 2012.Executive Order No. 12674, referred to in subsec. (d), is set out as a note under section 7301 of Title 5, Government Organization and Employees.The effective date of the Air Traffic Management System Performance Improvement Act of 1996, referred to in subsec. (f), is the date that is 30 days after Oct. 9, 1996. See section 203 of Pub. L. 104-264 set out as an Effective Date of 1996 Amendment note under section 106 of this title.

AMENDMENTS2024-Subsec. (g)(7). Pub. L. 118-63 added par. (7).2021-Subsec. (g)(5), (6). Pub. L. 116-283 added par. (5) and redesignated former par. (5) as (6). 2018-Subsec. (g)(2)(B). Pub. L. 115-254 inserted "3304(f), to the extent consistent with the Federal Aviation Administration's status as an excepted service agency," before "3308-3320" and "3330a, 3330b, 3330c, and 3330d," before "relating". 2016-Subsec. (g)(2)(J). Pub. L. 114-242, §2(a), added subpar. (J).Subsec. (g)(4), (5). Pub. L. 114-242, §2(b), added par. (4) and redesignated former par. (4) as (5). 2012-Subsec. (a)(2) to (5). Pub. L. 112-95, §601, added pars. (2) and (3), redesignated former pars. (3) and (4) as (4) and (5), respectively, and struck out former par. (2). Prior to amendment, text of par. (2) read as follows: "If the Administrator does not reach an agreement under paragraph (1) with the exclusive bargaining representatives, the services of the Federal Mediation and Conciliation Service shall be used to attempt to reach such agreement. If the services of the Federal Mediation and Conciliation Service do not lead to an agreement, the Administrator's proposed change to the personnel management system shall not take effect until 60 days have elapsed after the Administrator has transmitted the proposed change, along with the objections of the exclusive bargaining representatives to the change, and the reasons for such objections, to Congress. The 60-day period shall not include any period during which Congress has adjourned sine die." Subsec. (g)(2)(I). Pub. L. 112-95, §602, added subpar. (I). Subsec. (g)(3). Pub. L. 112-95, §611, inserted at end "Notwithstanding any other provision of law, retroactive to April 1, 1996, the Board shall have the same remedial authority over such employee appeals that it had as of March 31, 1996."2000-Subsec. (a)(2). Pub. L. 106-181, §308(a), inserted at end "The 60-day period shall not include any period during which Congress has adjourned sine die."Subsec. (g). Pub. L. 106-181, §307(a), added subsec. (g).Subsecs. (h) to (j). Pub. L. 106-181, §308(b), added subsecs. (h) to (j).

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2021 AMENDMENT Pub. L. 116-283, div. A, title XI, §1103(c)(2), Jan. 1, 2021, 134 Stat. 3887, provided that: "The amendments made by paragraph (1) [amending this section] shall apply with respect to any birth or placement occurring on or after October 1, 2020."

EFFECTIVE DATE OF 2000 AMENDMENTAmendment by Pub. L. 106-181 applicable only to fiscal years beginning after Sept. 30, 1999, see section 3 of Pub. L. 106-181 set out as a note under section 106 of this title.

EFFECTIVE DATESection effective on date that is 30 days after Oct. 9, 1996, see section 203 of Pub. L. 104-264 set out as an Effective Date of 1996 Amendment note under section 106 of this title.Except as otherwise specifically provided, section applicable only to fiscal years beginning after Sept. 30, 1996, and not to be construed as affecting funds made available for a fiscal year ending before Oct. 1, 1996, see section 3 of Pub. L. 104-264 set out as an Effective Date of 1996 Amendment note under section 106 of this title.

RULE OF CONSTRUCTION Pub. L. 116-283, div. A, title XI, §1103(c)(3), Jan. 1, 2021, 134 Stat. 3887, provided that: "Nothing in this subsection, or any amendment made by this subsection [amending this section], may be construed to affect leave provided to an employee of the Transportation Security Administration before October 1, 2020."

DEEMED REFERENCES TO CHAPTERS 509 AND 511 OF TITLE 51General references to "this title" deemed to refer also to chapters 509 and 511 of Title 51, National and Commercial Space Programs, see section 4(d)(8) of Pub. L. 111-314 set out as a note under section 101 of this title.

OFFICE OF INVESTIGATIONS AND PROFESSIONAL RESPONSIBILITY; MISCONDUCT INVESTIGATIONS Pub. L. 116-260, div. V, title I, §133(c), (d), Dec. 27, 2020, 134 Stat. 2355, provided that:"(c) OFFICE OF INVESTIGATIONS AND PROFESSIONAL RESPONSIBILITY.-The Administrator shall take such action as may be necessary to redesignate the Office of Investigations of the Administration as the Office of Investigations and Professional Responsibility."(d) MISCONDUCT INVESTIGATIONS.-"(1) IN GENERAL.-The Administrator shall review and revise the Administration's existing investigative policies that govern the investigation of misconduct by a manager of the Administration conducted by the FAA (in this subsection referred to as the 'Agency')."(2) PRESERVATION OF COLLECTIVE BARGAINING AGREEMENTS.-The investigative policy established under paragraph (1) shall not apply to, or in the future, be extended by the Administrator to apply to, any employee who is not a manager or is covered by or eligible to be covered by a collective bargaining agreement entered into by the Agency. "(3) REQUIREMENTS.-In revising the investigative policies, the Administrator shall ensure such policies require-"(A) the utilization of investigative best practices to ensure independent and objective investigation and accurate recording and reporting of such investigation;"(B) the management of case files to ensure the integrity of the information contained in such case files; "(C) interviews be conducted in a manner that ensures, to the greatest extent possible, truthful answers and accurate records of such interviews;"(D) coordination with the Office of the Inspector General of the Department of Transportation, the Office of the Special Counsel, and the Attorney General, as appropriate; and "(E) the completion of investigations in a timely manner. "(4) DEFINITION.-For purposes of this subsection, the term 'manager' means an employee of the Agency who is a supervisor or management official, as defined in section 7103(a) of title 5, United States Code." [For definitions of terms used in section 133(c), (d) of div. V of Pub. L. 116-260 set out above, see section 137 of div. V of Pub. L. 116-260 set out as a note under section 40101 of this title.]

APPLICATION OF 2016 AMENDMENT Pub. L. 114-242, §2(c), Oct. 7, 2016, 130 Stat. 978, provided that: "The amendments made by this section [amending this section] shall apply with respect to any employee of the Federal Aviation Administration hired on or after the date that is one year after the date of the enactment of this Act [Oct. 7, 2016]."

POLICIES AND PROCEDURES Pub. L. 114-242, §2(d), Oct. 7, 2016, 130 Stat. 978, provided that: "Not later than 270 days after the date of the enactment of this Act [Oct. 7, 2016], the Administrator of the Federal Aviation Administration shall prescribe policies and procedures to carry out the amendments made by this section [amending this section] that are comparable, to the maximum extent practicable, to the regulations prescribed by the Office of Personnel Management under section 6329 of title 5, United States Code."