The Federal Aviation Administration and Professional Air Traffic Controllers Organization

 



[ v02 p290 ]
02:0290(35)AR
The decision of the Authority follows:


 2 FLRA No. 35
 
 THE FEDERAL AVIATION ADMINISTRATION
 
 and
 
 PROFESSIONAL AIR TRAFFIC CONTROLLERS
 ORGANIZATION
 
                                            FLRC No. 78A-154
 
                 DECISION ON APPEAL FROM ARBITRATION AWARD
 
                            BACKGROUND OF CASE
 
    ACCORDING TO THE ARBITRATOR, THE GRIEVANT IN THIS CASE IS AN AIR
 TRAFFIC CONTROL SPECIALIST AT THE FEDERAL AVIATION ADMINISTRATION'S
 JACKSONVILLE CENTER FACILITY (THE ACTIVITY).  THIS GRIEVANCE AROSE WHEN
 THE GRIEVANT RETURNED TO WORK AFTER AN ABSENCE DURING WHICH HE HAD
 VOLUNTARILY UNDERGONE MEDICAL TREATMENT.  WHEN THE GRIEVANT RETURNED TO
 WORK, THE ACTIVITY REASSIGNED HIM TEMPORARILY TO AN ADMINISTRATIVE
 POSITION IN WHICH HE RECEIVED LESS PAY THAN HE NORMALLY RECEIVED WHEN
 PERFORMING HIS REGULAR DUTIES MONITORING AIR TRAFFIC.  THE ACTIVITY
 DIRECTED THE GRIEVANT TO UNDERGO PSYCHOLOGICAL EVALUATION BY FAA
 PHYSICIANS TO DETERMINE WHETHER HE COULD BE REASSIGNED AS A CONTROLLER.
 THE GRIEVANT OBJECTED TO THE ACTIVITY'S REQUIREMENT THAT HE BE EXAMINED
 BY FAA PHYSICIANS, BUT THE ACTIVITY REFUSED TO AGREE TO PERMIT THE
 EXAMINATION TO BE CONDUCTED BY A PRIVATE PHYSICIAN.  THE GRIEVANT
 THEREFORE UNWILLINGLY SUBMITTED TO EXAMINATIONS BY FAA PHYSICIANS, WAS
 CLEARED FOR DUTY AND RETURNED TO WORK AS A CONTROLLER.
 
    THE UNION FILED A GRIEVANCE ON BEHALF OF THE GRIEVANT, CONTENDING
 THAT THE PROCEDURES USED BY THE ACTIVITY BEFORE RETURNING THE GRIEVANT
 TO HIS CONTROLLER DUTIES VIOLATED THE FEDERAL PERSONNEL MANUAL (FPM) AND
 THE PARTIES' NEGOTIATED AGREEMENT.  THE MATTER ULTIMATELY WAS SUBMITTED
 TO ARBITRATION.
 
                          THE ARBITRATOR'S AWARD
 
    THE ARBITRATOR STATED THE ISSUE BEFORE HIM TO BE:
 
    DID THE FAA VIOLATE THE AGREEMENT IN DENYING THE GRIEVANT PROCEDURAL
 PROTECTIONS GUARANTEED
 
    ALL FEDERAL EMPLOYEES, AS SET FORTH BY THE FEDERAL PERSONNEL MANUAL
 IN CONNECTION WITH A
 
    PSYCHIATRIC EXAMINATION HE WAS REQUIRED TO UNDERGO BEFORE RETURNING
 TO ACTIVE RADAR CONTROL
 
    DUTY?
 
    THE ARBITRATOR SUSTAINED THE GRIEVANCE, AND ISSUED THE FOLLOWING
 AWARD:
 
    1.  THE FAA MAY NOT FORMULATE A POLICY WHICH DENIES A PARTICULAR
 CLASS OF FEDERAL EMPLOYEES
 
    THE DUE PROCESS PROCEDURES GUARANTEED BY THE FEDERAL PERSONNEL MANUAL
 AS SET FORTH BY THE
 
    CIVIL SERVICE COMMISSION.  IN SO DOING, THE RELIEF REQUESTED BY PATCO
 (POINTS NO. 2 AND 3
 
    /1/ AS SET FORTH IN THE GRIEVANCE) ARE GRANTED.
 
    2.  YOUR ARBITRATOR IS WITHOUT THE AUTHORITY TO EXPRESSLY GRANT THAT
 PORTION OF THE RELIEF
 
    REQUESTED . . . REQUIRING THE FAA TO PROMULGATE CERTAIN REGIONAL
 ORDERS.
 
    3.  THE FAA IS HEREBY DIRECTED TO TAKE THE ACTION NECESSARY TO MAKE
 CERTAIN THAT THE
 
    GRIEVANT'S PERSONNEL RECORD REFLECTS THAT THE INSTANT GRIEVANCE WAS
 DEEMED MERITORIOUS AND
 
    THAT HE NOT BE PENALIZED IN ANY WAY FOR HIS ACTIONS TAKEN THEREIN.
 
                              AGENCY'S APPEAL
 
    THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
 THE FEDERAL LABOR RELATIONS COUNCIL.  THIS CASE WAS PENDING BEFORE THE
 COUNCIL ON DECEMBER 31, 1978.  IN ACCORDANCE WITH SECTION 2400.5 OF THE
 TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED. REG.
 44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE
 COUNCIL, 5 C.F.R. PART 2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE
 PRESENT CASE, EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS
 APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
 
    PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
 ACCEPTED THE AGENCY'S PETITION FOR REVIEW WHICH TOOK EXCEPTION TO THE
 AWARD ON THE GROUND THAT THE AWARD VIOLATED APPROPRIATE REGULATION.
 ALSO, PURSUANT TO SECTION 2411.47(F) OF THE AMENDED RULES, THE AUTHORITY
 GRANTED THE AGENCY'S REQUEST FOR A STAY OF THE AWARD PENDING
 DETERMINATION OF THE APPEAL.
 
                                  OPINION
 
    SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES:
 
    (A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
 OR IN PART, OR REMANDED ONLY ON GROUNDS THAT THE AWARD VIOLATES
 APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
 SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE SECTOR
 LABOR-MANAGEMENT RELATIONS.
 
    AS PREVIOUSLY NOTED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION FOR
 REVIEW WHICH TOOK EXCEPTION TO THE AWARD ON THE GROUND THAT THE AWARD
 VIOLATED APPROPRIATE REGULATION.  BECAUSE THIS CASE INVOLVED A MATTER
 FOR WHICH THE CIVIL SERVICE COMMISSION WAS RESPONSIBLE FOR PRESCRIBING
 REGULATIONS, AND SINCE UNDER SECTION 902(B) OF THE CIVIL SERVICE REFORM
 ACT OF 1978 (92 STAT. 1224) THIS APPEAL MUST BE RESOLVED AS IF THE CIVIL
 SERVICE REFORM ACT HAD NOT BEEN ENACTED, THE AUTHORITY REQUESTED FROM
 THE OFFICE OF PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY TO THE CIVIL
 SERVICE COMMISSION WITH RESPECT TO THE MATTERS INVOLVED HEREIN) AN
 INTERPRETATION OF PERTINENT CIVIL SERVICE COMMISSION REGULATIONS AS THEY
 PERTAIN TO THE ARBITRATOR'S AWARD IN THIS CASE.  THE RESPONSE OF THE
 OFFICE OF PERSONNEL MANAGEMENT IS SET FORTH BELOW IN RELEVANT PART:
 
    THE GRIEVANT IN THIS CASE, AN AIR TRAFFIC CONTROL SPECIALIST, ALLEGED
 THAT THE PROCEDURES UTILIZED BY MANAGEMENT FOR AN EXAMINATION TO
 DETERMINE HIS FITNESS-FOR-DUTY WERE IN VIOLATION OF CERTAIN CIVIL
 SERVICE REGULATIONS, SPECIFICALLY FEDERAL PERSONNEL MANUAL /2/ CHAPTER
 339, SUBCHAPTER 1-3C, AND SUPPLEMENT 831-1, SUBCHAPTER 10-10.
 
    THE FIRST PROVISION, SECTION 1-3C OF CHAPTER 339 (HEREAFTER REFERRED
 TO AS CHAPTER 339), STATES THAT NORMALLY A FEDERAL MEDICAL OFFICER
 SHOULD CONDUCT A FITNESS-FOR-DUTY EXAMINATION.  IF, HOWEVER, AN EMPLOYEE
 REFUSES TO BE EXAMINED BY A FEDERAL MEDICAL OFFICER OR OTHER AGENCY
 DESIGNATED PHYSICIAN, THE EXAMINATION MAY BE CONDUCTED BY A PHYSICIAN OF
 THE EMPLOYEE'S CHOICE, SUBJECT TO THE FOLLOWING CONDITIONS:  (1) THE
 AGENCY DETERMINES THAT THE MEDICAL EXAMINATION IS NECESSARY PRIMARILY
 FOR THE BENEFIT OF THE GOVERNMENT;  (2) THE PHYSICIAN IS BOARD-CERTIFIED
 IN THE APPROPRIATE MEDICAL SPECIALTY, AND ACCEPTABLE TO THE AGENCY;  AND
 (3) THE PHYSICIAN SUBMITS A COMPLETE REPORT OF THE EXAMINATION DIRECTLY
 TO THE AGENCY.
 
    SUBCHAPTER 10-10 OF FPM SUPPLEMENT 831-1, OUTLINES THE PROCEDURES AN
 AGENCY MUST FOLLOW WHEN FILING A DISABILITY RETIREMENT APPLICATION ON
 BEHALF OF AN EMPLOYEE WHO HAS FIVE OR MORE YEARS OF SERVICE.  THESE
 PROCEDURES INCLUDE A REQUIREMENT FOR THE EMPLOYEE TO SUBMIT TO A
 FITNESS-FOR-DUTY EXAMINATION AFTER RECEIPT OF A NOTICE WHICH INFORMS HIM
 OR HER OF THE EXAMINATION AND PROVIDES INSTRUCTIONS ON HOW TO
 PARTICIPATE IN THE SELECTION OF A MEDICAL EXAMINER IF THE EMPLOYEE
 DESIRES TO DO SO.
 
    IN THE INSTANT CASE, THE GRIEVANT WAS NOT ORDERED TO TAKE A
 FITNESS-FOR-DUTY EXAMINATION BY THE FAA, BUT RATHER A "RETURN-TO-DUTY"
 EXAMINATION UNDER THE AGENCY'S HEALTH PROGRAM.
 
    THE ARBITRATOR FOUND THAT THE FAA HAS THE AUTHORITY UNDER CSC
 HANDBOOK X-118 TO CONDUCT "RETURN-TO-DUTY" EXAMINATIONS IN ORDER TO
 DETERMINE THE MEDICAL QUALIFICATIONS OF A CONTROLLER FOLLOWING A LONG
 ILLNESS OR INJURY.  HE CONCLUDED FURTHER, HOWEVER, THAT NO PERMANENT
 ACTION COULD BE TAKEN ON THE MEDICAL STATUS OF A CONTROLLER WITHOUT THE
 PERFORMANCE OF A FITNESS-FOR-DUTY EXAMINATION AS PROVIDED BY CHAPTER 339
 OF THE FEDERAL PERSONNEL MANUAL.
 
    SPECIFICALLY, THE ARBITRATOR ORDERED, IN PART:
 
    1.  THE FAA MAY NOT FORMULATE A POLICY WHICH DENIES A PARTICULAR
 CLASS OF FEDERAL EMPLOYEES THE DUE PROCESS PROCEDURES GUARANTEED BY THE
 FEDERAL PERSONNEL MANUAL AS SET FORTH BY THE CIVIL SERVICE COMMISSION.
 IN SO DOING, THE RELIEF REQUESTED BY PATCO (POINTS NO. 2 AND 3 AS SET
 FORTH IN THE GRIEVANCE) ARE GRANTED.
 
    POINTS 2 AND 3 PROVIDED:
 
    2.  THAT THE FAA SOUTHERN REGION INFORM ME BY LETTER THAT WHATEVER
 FITNESS FOR DUTY PHYSICALS AND/OR PSYCHOLOGICAL EVALUATIONS ARE TO BE
 REQUIRED OF ANY BARGAINING UNIT MEMBER THAT THE PROVISIONS OF THE
 FEDERAL PERSONNEL MANUAL, CHAPTER 339, SUBCHAPTER 4, PARAGRAPH 1-3C, AND
 CHAPTER 831-1, SUBCHAPTER 10-10 OF THE FEDERAL PERSONNEL SUPPLEMENT
 PREVAIL AND THAT ALL BARGAINING UNIT MEMBERS WILL BE ACCORDED THESE
 RIGHTS.
 
    3.  THAT WHENEVER A BARGAINING UNIT MEMBER IS REQUIRED TO UNDERGO A
 FITNESS FOR DUTY AND/OR A PSYCHOLOGICAL EVALUATION THAT THEY WILL BE
 ADVISED OF THEIR RIGHTS UNDER THE REGULATIONS OF THE FEDERAL PERSONNEL
 MANUAL IN THE INITIAL LETTER THAT THEY RECEIVE ADVISING THEM THAT THEY
 MUST UNDERGO A FITNESS FOR DUTY AND/OR A PSYCHOLOGICAL EVALUATION.
 
    THE QUESTION PRESENTED TO US IN THIS CASE IS WHETHER, AS THE FAA
 ARGUES, THE AWARD VIOLATED THE FEDERAL PERSONNEL MANUAL IN THAT THE
 ARBITRATOR MADE AN ARTIFICIAL DISTINCTION BETWEEN THE C-118 AUTHORITY
 FOR THE AGENCY'S "RETURN TO DUTY" EXAMINATION, AND THE "FITNESS FOR
 DUTY" EXAMINATION, DISCUSSED IN CHAPTER 339, AND THAT IT IS REDUNDANT TO
 CONDUCT BOTH A "RETURN TO DUTY" EXAMINATION AND A "FITNESS FOR DUTY"
 EXAMINATION BEFORE ANY PERMANENT ACTION CAN BE TAKEN AGAINST A
 CONTROLLER.
 
    THE QUESTION IN THIS CASE REQUIRES THE HARMONIZATION OF FAA AND
 EMPLOYEES' RIGHTS WITH RESPECT TO "RETURN TO DUTY" AND "FITNESS FOR
 DUTY" EXAMINATIONS.  FAA IS AUTHORIZED, UNDER X-118 TO REQUIRE "RETURN
 TO DUTY" EXAMINATIONS.  SUCH EXAMINATIONS ARE USED WHEN AN EMPLOYEE
 RETURNS VOLUNTARILY FROM A SERIOUS JOB-RELATED INJURY OR ILLNESS WHICH
 HAS CAUSED DISABILITY FOR WORK OF MORE THAN FOUR DAYS OR THE NATURE OF
 THE INJURY OR ILLNESS IS SUCH THAT IT MAY JEOPARDIZE AIR SAFETY.  (PAGE
 2 OF SEPTEMBER 23, 1978 LETTER FROM THOMAS A. TINSLEY TO WILLIAM B.
 PEER.) THESE EXAMINATIONS APPLY ONLY TO AIR TRAFFIC CONTROL SPECIALISTS
 AND ARE USED TO DETERMINE WHETHER AN EMPLOYEE IS PHYSICALLY OR MENTALLY
 QUALIFIED FOR AIR TRAFFIC CONTROL DUTIES.
 
    HOWEVER, FPM CHAPTER 339 AND SUPPLEMENT 831-1 APPLY TO SITUATIONS
 PRECEDENT TO A POSSIBLE REMOVAL, DEMOTION, OR INVOLUNTARY RETIREMENT,
 AND WERE MEANT TO APPLY TO ALL FEDERAL EMPLOYEES.  (AT THIS POINT, IT
 SHOULD BE NOTED THAT CHAPTER 339 DOES NOT, BY ITSELF, HAVE THE FORCE OF
 REGULATION.  IT IS GUIDANCE AND ADVISORY.  HOWEVER, FPM SUPPLEMENT
 752-1, S1-3A(5), WHICH DOES HAVE THE FORCE OF REGULATION, INCORPORATES
 CHAPTER 339 BY REFERENCE. /3/ THUS, THE PROCEDURES CONTAINED IN CHAPTER
 339 ARE MANDATORY, WHEN AN ADVERSE ACTION IS INVOLVED.) THEREFORE, IF
 DURING THE CONDUCT OF A "RETURN TO DUTY" EXAMINATION THERE IS SUFFICIENT
 REASON TO BELIEVE THAT A CONTROLLER IS PERMANENTLY DISABLED FOR THE
 PERFORMANCE OF AIR TRAFFIC CONTROL DUTIES WHICH COULD RESULT IN HIS OR
 HER REMOVAL, DEMOTION, OR INVOLUNTARY DISABILITY RETIREMENT, THE
 EMPLOYEE MUST BE AFFORDED THE PROCEDURAL PROTECTIONS OF FPM CHAPTER 339
 OR SUPPLEMENT 831-1.  THESE PROTECTIONS INCLUDE THE RIGHT OF THE
 EMPLOYEE TO