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46 FLRA No. 13

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF TRANSPORTATION

AND

FEDERAL AVIATION ADMINISTRATION

(Respondents)

and

PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS

MEBA, AFL-CIO

(Charging Party)

3-CA-70647-1-2

3-CA-70648-1-2

3-CA-70649-1-2

3-CA-70650-1-2

3-CA-70651-1-2

(40 FLRA 690 (1991))

DECISION AND ORDER ON REMAND

October 16, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in Professional Airways Systems Specialists Division, District No. 1 - MEBA/NMU v. FLRA, No. 91-1310 (D.C. Cir. June 22, 1992) (mem.; per curiam) (PASS v. FLRA). For the following reasons, we conclude that the complaint must be remanded to the Chief Administrative Law Judge⁽¹⁾ for further proceedings.

II. Background

In the prior decision in this case, the Authority concluded, among other things, that Respondent Federal Aviation Administration (FAA) had violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing DOT Order 3910.1, Drug-Free Departmental Workplace, without completing bargaining with the Professional Airways Systems Specialists, MEBA, AFL-CIO, (PASS) the exclusive representative of its employees. In that decision, the Authority concluded that a status quo ante remedy was not appropriate. The Respondents did not seek review of the Authority's decision. The Charging Party sought review of the Authority's decision insofar as the Authority refused to order status quo ante relief.⁽²⁾ On appeal, the court, citing National Treasury Employees Union v. FLRA, 910 F.2d 964, 966-67 (D.C. Cir. 1990) (en banc) (NTEU v. FLRA), noted that deference is due an administrative agency's choice of remedy, but stated:

In cases such as this one, however,

where an agency has taken unilateral action that disturbs the status quo and has illegally refused to give a union an opportunity to bargain over the decision (or its impact), a stronger case can be made for the proposition that the Authority ... should restore the status quo ante in a remedial order .... That does not necessarily mean that the Authority must employ such a remedy as a matter of law, but in such a case it would surely bear the burden of explaining why it did not.

[NTEU V. FLRA] at 969. We conclude that the Authority did not provide an adequate explanation for its decision to deny status quo ante relief.

PASS v. FLRA at 3.

In reaching this conclusion, the court rejected the Authority's finding that FAA had a particularly urgent need to ensure a drug-free workplace as not "supported by substantial evidence on the record." PASS v. FLRA at 3. Additionally, the court characterized this finding as inconsistent with the concept that bargaining was required prior to the implementation of the random drug testing program. The court continued:

If the Authority should on remand maintain its view that urgent considerations of safety require the continuation of the testing program, it must provide a proper factual basis for its conclusion. The Authority has discretion to distinguish between different job categories -- for instance, pilots versus technicians or inspectors -- in deciding whether status quo ante relief is appropriate. Cf. National Fed'n of Fed. Employees v. Cheney, 884 F.2d 603, 610-11 (D.C. Cir. 1989). The Authority also may consider the possibility, suggested by PASS at oral argument, that a time limit be imposed on the bargaining process.

PASS v. FLRA at 4.

III. Analysis and Conclusions

The record before us is not sufficient to provide a factual basis for conclusions as to the extent to which a status quo ante remedy would be appropriate. In particular, the record does not contain sufficient facts that permit a determination on whether, and to what extent, distinctions should be made between different job categories with regard to the imposition of a status quo ante remedy. Accordingly, we remand this case to the Chief Administrative Law Judge for further processing. A factual record should be developed that permits a determination as to whether status quo ante relief would be inappropriate if applied to a particular job category. Specifically, this record should include information on the nature of the work performed by bargaining unit employees who are in the job categories that are subject to random drug testing under DOT Order 3910.1 and the relationship between work performance by those employees and aviation safety. Based on that record, a recommended order should be submitted to the Authority.⁽³⁾

IV. Order

The complaint is remanded to the Chief Administrative Law Judge for further proceedings consistent with this decision.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Judge who conducted the hearing in this case is no ,onger with the Authority.

2. The Charging Party also challenged the Authority's failure to grant make-whole relief and the dismissal of the complaint against Respondent Department of Transportation. The court affirmed the Authority's failure to grant make-whole relief and its determination that Respondent Department of Transportation did not violate the Statute as alleged.

3. In light of the passage of time since the occurrence of the unfair labor practice, we encourage the parties to come to a settlement of the remedial issue or to enter into any stipulations of fact that would facilitate the prompt resolution of this case.

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