46:0103(13)CA - - Transportation and FAA and Professional Airways Systems Specialist - - 1992 FLRAdec CA - - v46 p103
[ v46 p103 ]
The decision of the Authority follows:
46 FLRA No. 13
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
PROFESSIONAL AIRWAYS SYSTEMS SPECIALISTS
(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.
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