42:0082(5)CA - - FAA and National Air Traffic Controllers Association - - 1991 FLRAdec CA - - v42 p82

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42:0082(5)CA
The decision of the Authority follows:


42 FLRA No. 5

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL AVIATION ADMINISTRATION

(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

MEBA/NMU, AFL-CIO

(Charging Party)

3-CA-00225

DECISION AND ORDER

September 11, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Charging Party (the Union) and the General Counsel to the attached decision of the Administrative Law Judge. The Respondent (FAA) filed an opposition to both the Union's and the General Counsel's exceptions. The Respondent did not file exceptions to the Judge's decision.

The complaint alleged and the Judge found that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it changed the conditions of employment of bargaining unit employees by implementing a new policy of medically disqualifying Air Traffic Control Specialists (controllers) who have insulin-dependent diabetes mellitus without notifying the Union and affording it an opportunity to bargain concerning the impact and implementation of the change. None of the parties excepted to this portion of the Judge's decision.

The Judge's recommended order requires FAA to bargain with the Union over the impact and implementation of the change. However, the Judge concluded that a status quo ante order is not warranted. The Judge's recommended order requires FAA to make whole the controllers who were adversely affected by the change for any loss of pay or benefits, but specifically states that the controllers shall not be restored to their former operational control positions. The General Counsel and the Union except to the Judge's conclusion that a status quo ante order is not warranted and to his failure to recommend an order requiring that the controllers be restored to their former positions until the Respondent satisfies its statutory bargaining obligation.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the reasons stated by the Judge and noting that no exceptions were filed in this regard, we adopt the Judge's findings and his conclusion that the Respondent violated the Statute. For the reasons that follow, we also agree with the Judge's conclusion that a status quo ante remedy is not warranted in the circumstances of this case and we adopt the Judge's recommended order.

II. Administrative Law Judge's Decision

The Judge found that the Respondent violated the Statute by not fulfilling its duty to bargain over the impact and implementation of its decision to medically disqualify controllers prior to making the change in their conditions of employment. In determining whether to grant a status quo ante remedy, as requested by the Union and the General Counsel, the Judge applied the factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982) (FCI). Those factors are:

(1) whether, and when, notice was given to the union by the agency concerning the action or change decided upon; (2) whether, and when, the union requested bargaining on the procedures to be observed by the agency in implementing such action or change and/or concerning appropriate arrangements for employees adversely affected by such action or change; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations.

8 FLRA at 606.

As to the first four FCI factors, the Judge found that: (1) the Union "never received proper notice" of the change; (2) the Union had requested bargaining; (3) FAA went forward with the change "without regard for the Union's statutory role as the exclusive bargaining agent"; and (4) the impact was "reasonably foreseeable as well as substantial and severe." Id. at 20-22.

As to the last FCI factor, however, the Judge found that a status quo ante remedy that included restoring insulin-dependent controllers to their former positions would disrupt or impair the efficiency or effectiveness of FAA's operations. The Judge noted that "the record shows that controllers with insulin-dependent diabetes mellitus met the demands of their positions for many years while operating under the previous policy where they had to demonstrate satisfactory control of the disease yearly on a case-by-case basis." Id. at 22. The Judge also noted that the two incidents described in the record where controllers had hypoglycemic episodes at the workplace "were not shown to have created operational hazards." Id. "On the other hand," the Judge found, "the medical data reveals that at least a few individuals with insulin treated diabetes are at risk of suffering episodes of hypoglycemia involving impaired thinking or loss of consciousness, sometimes without warning symptoms." Id. The Judge stated that although individuals with a history of suffering episodes without warning symptoms could possibly be identified under FAA's previous policy, the "Federal Air Surgeon apparently does not want the first episode of what could become that 'history' to occur while the employee is controlling traffic. Therefore, he has chosen to disqualify all controllers with insulin-dependent diabetes mellitus as 'incompatible with safety in the national airspace system.'" Id. (emphasis in original).

The Judge concluded that because "protection of the safety of the flying public is a primary mission of the FAA, and millions of Americans entrust their safety to the FAA's stewardship of the air transportation system . . . a status quo ante remedy would disrupt or impair the efficiency or effectiveness of the agency's operation." Id. The Judge stated that "[b]alancing the nature and circumstances of the violation against the degree of impairment of Government operations . . . a status quo ante remedy is not warranted." Id.

Although the Judge did not order the FAA to restore controllers to their former positions "primarily because of the potential impact on the safety of the flying public," the Judge found that FAA was nonetheless not privileged to implement the change without satisfying its bargaining obligations. Id. The Judge found that FAA had not recognized the Union's "right to make proposals on [the controllers'] behalf and bargain to agreement with the agency prior to implementation of [the] change affecting their working conditions." Id. at 23. The Judge found that an order requiring FAA to bargain over the impact and implementation of the change "will remedy FAA's failure to recognize the Union's role under the Statute." Id. He found that such an order, however, "will not provide appropriate relief to the affected controllers who, as a result of FAA's unilateral action, lost their medical qualifications" to be controllers "and other benefits . . . including a withdrawal or reduction in pay, allowances or differentials." Id. The Judge found that a "partial 'make whole' remedy" for the controllers "not involving restoration to their original positions, would not substantially disrupt or impair FAA operations" and "would effectuate the purposes and policies of the Statute." Id. Accordingly, the Judge ordered FAA to make the controllers whole for the pay and benefits lost as a result of the unilateral change.

III. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel states that the record evidence reveals that controllers with insulin-dependent diabetes mellitus have been fully performing their duties as controllers for years. The General Counsel contends that there is "absolutely no credible evidence that Air Traffic Controllers with diabetes mellitus, taking insulin on a daily basis, cannot be restored to their former positions or that such a restoration would realistically disrupt or impair FAA operations." General Counsel's Exceptions at 4.

The General Counsel relies on the Authority's decision in U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky, 38 FLRA 647, 650 (1990), in which the Authority stated that it "bases a finding as to the appropriateness of a status quo ante remedy on specific evidence in the record indicating the disruption that will be caused by such a remedy[.]" The General Counsel states that the Judge could not conclude from the record evidence in this case that the previous use of controllers with diabetes mellitus had disrupted FAA operations. The General Counsel argues that a finding that restoring controllers to their former positions would disrupt the Agency's operations "is a proposition based solely on speculation." Id. at 5. The General Counsel urges that "[i]f FCI is to be interpreted as encompassing 'potential' disruption to an agency's operations where the evidence is otherwise, the Authority should, in the circumstances of this case, say so." Id. The General Counsel requests that FAA be ordered to restore the controllers to their former positions until FAA satisfies its obligation to bargain over the impact and implementation of its December 6, 1989 decision.

B. Union's Exceptions

The Union states that "[t]here is virtually no record evidence to support the Judge's conclusion that a status quo ante remedy is not warranted, and the Judge himself all but conceded as much." Union's Exceptions at 2-3.

The Union notes the Judge's findings that controllers with diabetes mellitus have met the demands of their positions for many years under FAA's previous policy and that no hypoglycemic episodes have ever created any operational hazards. The Union notes also that the record shows that "[a]t the time when FAA changed its policy . . . there was no new medical evidence of any increased risk presented by controllers who take insulin." Id. at 4. The Union argues that the "overwhelming record evidence in this case thus leads to the inevitable conclusion that a status quo ante remedy would not disrupt nor [sic] impair the efficiency or effectiveness of the FAA's operations." Id. (emphasis in original).

C. Respondent's Opposition

FAA notes that in reaching his decision as to a remedy, the Judge considered the factors set forth in FCI for determining when a status quo ante remedy would disrupt or impair the efficiency of an agency's operations. FAA contends that the Judge "was correct in declining to order the insulin-dependent controllers to be returned to their former duties." Respondent's Opposition at 2.

FAA asserts that "the impairment to the efficiency and effectiveness of the agency's operations found by the Administrative Law Judge was not mere 'speculation,'" as argued by the General Counsel. Id. FAA notes the testimony of the Manager of its Medical Specialists Division, Office of Aviation Medicine, that

the danger to the safety of the air traffic system that would be caused by restoring these controllers to duty is very real and immediate. The risk of a hypoglycemic reaction in a diabetic taking insulin is always present. This entails the risk of a loss of cognitive function, the ability to use the higher centers of the brain.

Id. FAA asserts that "[t]he fact that there has not yet been a documented instance of such a reaction while a controller was actively engaged in air traffic control duties is no guarantee that such an incident will not occur in the future, with potentially catastrophic results." Id. at 2-3. FAA notes that the two documented incidents of hypoglycemia presented to the Judge occurred at work, although not while the controllers were actively working traffic. FAA argues that "the presence of such a danger clearly constitutes an impairment to the efficiency and effectiveness of the air traffic control system." Id. at 3. FAA concludes that the Judge "was correct in his conclusion not to impose such a danger through a status quo ante remedy." Id.

IV. Analysis and Conclusions

A. Preliminary Matter

On July 25, 1991, the Authority issued an order directing the parties to submit supplemental memoranda in this case. The Authority noted that, subsequent to the filing of the exceptions and the opposition in this case, it was reported that in settlement of a grievance charging that FAA violated the Rehabilitation Act of 1973 by medically disqualifying insulin-dependent controllers, FAA agreed to devise a medical standard or guideline for determining which controllers can safely direct air traffic. See 29 GERR 181 (February 18, 1991). The Authority directed the parties to advise the Authority whether this reported settlement affects the case before the Authority and, if so, how.

The Union advised the Authority that under the terms of the settlement a panel of endocrinologists has "submitted to the FAA its proposed guidelines for employment, monitoring and glucose management of insulin treated diabetic air traffic controllers." Union's Supplemental Memorandum at 2. The Union further states that "the FAA has not taken any steps towards implementing the panel's recommendation." Id. Finally, the Union states that "the case before the Authority is not affected by the diabetes grievances settlement agreement," and that the Authority should, therefore, grant the "complete make whole remedy" requested by the General Counsel and the Union. Id. at 3.

FAA states that it "is in the process of developing the internal procedures to implement" the recommendations of the endocrinologists' panel. FAA's Supplemental Memorandum at 2-3. FAA also states that the panel's recommendations, however, do not guarantee retroactivity to all affected controllers. In concluding, FAA states that "the case before the Authority is not affected by . . . the grievance settlement agreement between the Union and the FAA." Id. at 3.

The General Counsel states that the reported settlement is a private arrangement between FAA and the Union to which the General Counsel was not a party. The General Counsel argues that the Authority should decide the matter before it, as "there is no indication that any private arrangement reached by the parties has satisfied any of the remedial entitlements resulting from the Respondent's egregious statutory violations[.]" General Counsel's Supplemental Memorandum at 2.

On consideration of the parties' supplemental memoranda, we have determined that the reported settlement in the grievance matter does not affect the case before us.

B. The Remedy

We agree with the Judge, for the reasons stated by him, that restoration of the controllers to their former positions is not warranted. In so finding, we reject the General Counsel's contention that a finding that restoring controllers to their former positions would disrupt the Agency's operations "is a proposition based solely on speculation." Exceptions at 5. In order to determine in any case whether a particular remedial order would disrupt or impair an agency's operations, the Authority must assess, based on the record, what consequences such an order may cause.

As the Judge acknowledges, for many years controllers "demonstrated satisfactory control of the disease or the therapy and continued to control air traffic" and "there was no evidence that these diabetic controllers were creating operational hazards or experiencing difficulties on the job." Judge's Decision at 4. The Judge noted, however, that the record also shows that there were two recorded instances where controllers suffered hypoglycemic episodes at the workplace. One episode resulted in the controller reporting late for duty, while the other required the controller to take sick leave for the remainder of his shift.

The Respondent's witness, the Manager of its Medical Specialists Division, testified that at least some insulin-dependent diabetics are at risk of suffering episodes of hypoglycemia without prior warning. Consistent with that testimony, the Judge found that "the medical data reveals that at least a few individuals with insulin treated diabetes are at risk of suffering episodes of hypoglycemia involving impaired thinking or loss of consciousness, sometimes without warning symptons." Id. at 22.

The Federal Air Surgeon, after discussions with the Agency's medical staff, decided "that the Agency could not continue to accept the risk of insulin-dependent controllers in the system." Id. at 5. The Judge noted that "protection of the safety of the flying public is a primary mission of the FAA, and millions of Americans entrust their safety to the FAA's stewardship of the air transportation system . . . ." Id. at 22.

In these circumstances, noting particularly the Judge's finding, based on record testimony, that at least a few individuals with insulin treated diabetes are at risk of suffering episodes of hypoglycemia involving impaired thinking or loss of consciousness, sometimes without warning symptoms, we agree with the Judge that restoration of the controllers to their former positions is not appropriate in this case. See U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 720 (1991), in which we found that a status quo ante remedy requiring FAA to rescind its drug screening program was not warranted in view of the "need to ensure the integrity of the aviation safety and control system."

Based on the record, the Judge balanced the nature and circumstances of FAA's violation against the degree of impairment of Government operations that would be caused by an order to restore diabetic controllers to their former positions and concluded that such an order would disrupt or impair the efficiency or effectiveness of the Agency's operations. Therefore, he declined to order that the controllers be restored to their former positions. We find that the Judge's conclusion is supported by the record. We adopt that conclusion and the Judge's recommended order.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Aviation Administration shall:

1. Cease and desist from:

(a) Implementing changes in the medical qualification standards for Air Traffic Control Specialists, GS-2152 series, without affording the National Air Traffic Controllers Association MEBA/NMU, AFL-CIO, the exclusive representative of an appropriate unit of such employees, appropriate notice and an opportunity to bargain over the procedures which management will observe in implementing its decision and appropriate arrangements for adversely affected employees.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Upon request, bargain in good faith with the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, the exclusive representative of a unit of its employees, over the procedures which management will observe in implementing its December 6, 1989 decision to medically disqualify Air Traffic Control Specialists, GS-2152 series, with insulin-dependent diabetes mellitus and appropriate arrangements for adversely affected employees.

(b) Make whole any bargaining unit employee who was adversely affected by the unilateral implementation of its December 6, 1989 decision to medically disqualify Air Traffic Control Specialists, GS-2152 series, with insulin-dependent diabetes mellitus. Employees shall not be restored to operational control positions, but shall be made whole for any loss of pay or benefits while serving in other positions, including backpay with interest for any withdrawal or reduction in pay, allowances, or differentials. Employees shall also have such benefits, rights, or privileges restored and/or shall be paid for any continuing losses consistent with law and regulation until collective bargaining with the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, on the procedures which management will observe in implementing its decision and appropriate arrangements for adversely affected employees is completed.

(c) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Administrator of the Federal Aviation Administration, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT implement changes in the medical qualification standards for Air Traffic Control Specialists, GS-2152 series, without affording the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, the exclusive representative of an appropriate unit of such employees, appropriate notice and an opportunity to bargain over the procedures which management will observe in implementing our decision and appropriate arrangements for adversely affected employees.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request, bargain in good faith with the National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, the exclusive representative of a unit of our employees, over the procedures which management will observe in implementing its December 6, 1989 decision to medically disqualify Air Traffic Control Specialists, GS-2152 seri