48:1211(129)CA - - DOT and FAA and Professional Airways Systems Specialist - - 1993 FLRAdec CA - - v48 p1211



[ v48 p1211 ]
48:1211(129)CA
The decision of the Authority follows:


48 FLRA No. 129

 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)

46 FLRA 103 (1992)

_____

DECISION AND ORDER ON REMAND

December 27, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority on exceptions filed by the Charging Party (PASS) to the attached decision on remand of the Administrative Law Judge. The Respondents filed an opposition to the Charging Party's exceptions. In earlier proceedings, we concluded, among other things, that Respondent Federal Aviation Administration (FAA) had violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by its actions in implementing Department of Transportation Order 3910.1, Drug-Free Departmental Workplace. 40 FLRA 690. On appeal, the United States Court of Appeals for the District of Columbia remanded the case to the Authority for further consideration of the remedy. 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). Subsequently, in 46 FLRA 103, we remanded the case to the Chief Administrative Law Judge for further proceedings.

The sole issue presented by the remand is whether or to what extent a status quo ante remedy should be granted. On remand, the Judge recommends that the Authority not order a status quo ante remedy. Pursuant to section 2423.29 of our Rules and Regulations, we have reviewed the procedural rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommendation with regard to the remedy.

In remanding, the court granted the Charging Party's petition for review only with respect to our denial of status quo ante relief. The court found that we did not provide an adequate explanation for our decision to deny status quo ante relief. The court rejected our 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, quoting section 7123(c) of the Statute. The court stated further:

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.

As the record in the case was not sufficient to provide a factual basis for conclusions as to the extent to which a status quo ante remedy might be appropriate, we remanded the case to the Chief Administrative Law Judge for further processing with instructions that a recommended order on the issue of remedy should be submitted to the Authority.

As set forth in detail in the attached decision, the Judge examined the various job categories in the PASS bargaining units that are subject to random drug testing and found that employees in all of those categories perform tasks that are essential to the safe operation of the National Airspace System that FAA is responsible for managing.(1) The Charging Party concedes this fact. Brief to Exceptions at 5. Based on the record, the Judge found that the potential exists in all of the job categories that an error could result in catastrophe for the flying public, other employees, and the FAA's operations. We agree with the Judge that the record shows that tasks assigned to each of the job categories that are subject to random drug testing have the potential, if incorrectly performed, to undermine the safety of air transportation and that such errors could result in far-reaching, including dire, consequences. Accordingly, the record provides no basis for concluding that a status quo ante remedy is appropriate for some, but not all, of the bargaining unit employees who are subject to random drug testing. Additionally, we note that although the National Airspace System is structured to minimize the likelihood that an error actually would produce a catastrophe, the potential gravity of the possible harm that could result if an employee in those job categories performed assigned tasks while impaired by drug use is of the highest magnitude. In view of that magnitude, even minimal risks are not acceptable.

In its exceptions, PASS asserts that if the status quo ante were reinstated, FAA would not be deprived of all drug testing capability but would retain the ability to test based on reasonable suspicion. This is true. However, as pointed out by the Judge, the record establishes that a number of the employees who are subject to random drug testing work without any direct supervision and, hence, are not susceptible to testing based on reasonable suspicion. Moreover, the record in this case reveals that of the 58 positive test results obtained in the PASS bargaining units since the inception of the random drug testing program, 50 resulted from random tests, 7 resulted from follow-up tests, and 1 resulted from reasonable suspicion tests. Union Exhibits 4-6. Thus, experience under the drug testing program shows that random testing detects far more drug use than reasonable suspicion testing does.(2) Although the record indicates that drug use has declined since the inception of random drug testing, experience under the random testing program confirms that there has been and continues to be some drug use by employees who are in job categories that perform tasks essential to the safety of the National Airspace System. See id. As we stated above, given the potential gravity of the possible harm that could result from drug use by such employees, even minimal risks are not acceptable.

This evidence of drug use by employees who are responsible for tasks that, if performed improperly, have the potential of causing serious harm to the flying public further supports a conclusion that a status quo ante remedy would not be appropriate in this case. Prior to implementation of the random drug testing program, the existence of such drug use was largely a matter of speculation. That is no longer the case in that the existence of drug use has been documented. We believe that once drug use has been documented within categories of employees who are assigned tasks that are critical to air safety, suspension of an existing, effective means of detecting that drug use would seriously undermine the confidence of the flying public in the safety and integrity of the National Airspace System. Moreover, we reject the argument advanced by PASS that FAA must show that reversion to the status quo ante would cause greater disruption to the effectiveness and efficiency of Agency operations than would have occurred had the Agency properly fulfilled its bargaining obligation prior to the implementation of random drug testing. Without addressing the extent to which we would apply that specific standard in other circumstances, we find that, particularly in view of the unique and critical relationship between the proper operation of the National Airspace System and public safety, the standard should not apply in the circumstances involved in this case.

We find that there is substantial evidence to support a conclusion that employees in the job categories that are subject to random drug testing perform tasks that are essential to the safe operation of the National Airspace System and that the potential exists that an error on their part could result in dire consequences for the flying public, other employees, and the FAA's operation. In view of the importance of ensuring the safety of that system and the role that the employees in the job categories that are at issue here play in assuring that safety, we agree with the Judge, for the reasons more fully expressed in his decision, that a status quo ante remedy should not be given in this case.

In so concluding, we have considered the suggestion made by PASS, and reiterated by the court, that a time limit could be imposed on the bargaining process if a status quo ante remedy were granted. In this regard, PASS had proposed as an alternative remedy that we consider issuing a status quo ante order requiring that the parties engage in intensive bargaining for a limited period of time, such as 60 days, and then submit any outstanding issues to the Federal Service Impasses Panel for resolution. Charging Party's Brief to Exceptions filed in the proceedings in 40 FLRA 690 at 26-27. While we could fashion a remedy limiting the effective length of the status quo ante, we find that the same reasons that militate against returning to the status quo ante for the duration of bargaining argue against reverting to the status quo ante for a more limited period of time. As to the specific limitation that PASS proposed to the Authority and to the court, such a period could prove lengthier and more open-ended than is at first apparent. Thus, it is possible that negotiability disputes arising during the course of further bargaining and in conjunction with impasse resolution could serve to lengthen the bargaining process well beyond the initial period suggested by PASS. Under all the circumstances, we decline to issue an order that limits the length of a return to the status quo ante by imposing a time limit on the bargaining process.

II. Order

Based on the foregoing and for the reasons expressed in the attached Judge's decision, we reaffirm the Order that we issued in our decision published at 40 FLRA 690.




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

1. In addition to those categories of employee in the PASS bargaining units subject to random drug testing that specifically are discussed in the Judge's decision, the record shows that the category of Electronics Engineer, GS-855, is not separately addressed in the Judge's decision. However, there is no suggestion by any party to this case that this category of employee has a lesser role with respect to the safety of the National Airspace System than that of the categories that are described in the Judge's decision.

2. We acknowledge that this information was obtained in the context of a program that was implemented unilaterally. However, application of the fifth factor of the balancing test for determining whether a status quo ante remedy is warranted as articulated in Federal Correctional Institution, 8 FLRA 604, 606 (1982), necessarily may result in consideration of events that have transpired subsequent to, and as a consequence of, a unilateral implementation of a change in conditions of employment. That particular factor entails an examination     of the extent to which a return to the status quo ante would disrupt or impair the efficiency and effectiveness of an agency's operations. Additionally, we note that the evidence on which we rely concerning experience under the random drug testing program was placed into the record of this case by the Union in support of its position.


  

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424

         

U.S. DEPARTMENT OF                                                            
TRANSPORTATION AND FEDERAL
AVIATION ADMINISTRATION
Respondent                            .                                      

            and                             .                                           

PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, MEBA, AFL-CIO
  Charging Party           .                               

                                                .                                      Case Nos.  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)
                                                                           .                         46 FLRA No. 13 (1992)

Daryl Adams, Esquire
G. Larry Frazier, Esquire 
       
    For the General Counsel

Joseph E. Kolick, Jr., Esquire 
           
    For the Charging Party

Mary N. Whigham Jones, Esquire  
David Tochen, Esquire 
           
    For the Respondents

Before:  BURTON S. STERNBURG
           
    Administrative Law Judge

DECISION  

Statement of the Case  
 

            This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq., and the Rules and Regulations issued thereunder. 

             Pursuant to Orders dated June 22, 1992, and October 16, 1992, from the District of Columbia Circuit Court of Appeals and the Federal Labor Relations Authority, respectively, the  captioned cases were remanded to the Chief Administrative Law Judge for the sole purpose of conducting a hearing and making recommendations concerning the appropriateness of a status quo ante remedy.[1]  The Authority's remand order stated that a factual record should be developed which includes "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 relation-ship between work performance by those employees and aviation safety."

            A hearing was held in the captioned matter on May 18, 1993, in Washington, D.C.  All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein.  The respective counsels for Respondent, Charging Party and General Counsel filed post hearing briefs which have been fully considered.

Findings of Fact

 Background:

             The Professional Airways Systems Specialists, MEBA, AFL-CIO, (hereinafter called the Union), represents two bargaining units within the Federal Aviation Administration, (hereinafter called the FAA).  One unit, hereinafter referred to as the AF Unit, is composed of all non-professional employees of the Airways Facilities Division of the FAA and professional employees employed at the Eastern Regional Headquarters.  There are approximately 6,500 employees in this  bargaining unit.  The second or other bargaining unit, hereinafter referred to as AVN Unit, is composed of some 350 to 400 employees working for the Aviation National Field Office.

             Prior to September 8, 1987, drug tests were given upon the basis of reasonable suspicion and in connection with annual physicals.[2]  After September 8, 1987, the FAA instituted a new drug program, which, in addition to drug testing upon the basis of suspicion provided for random unscheduled urinalysis testing of unit employees.  Like the old program, if an employee was found to be using drugs, he would be allowed to retain his job under a "last chance" agreement which required the employee to submit to follow-up drug testing.  It was the institution of the random drug testing prior to completion of negotiations that was the basis of the Section 7116(a)(1) and (5) finding by the Authority.  As noted above, the Authority, based primarily upon the FAA's contention that absent the continuation of random drug testing the flying public's air safety would be jeopardized, declined to give a status quo ante remedy.  Inasmuch as the Circuit Court of Appeals found no basis in the record to support the Authority's position it remanded the matter for further consideration.  Upon further review, the Authority concluded that the record was insufficient to make a finding with respect to whether a status quo ante remedy would indeed jeopardize the flying public and consequently ordered the instant hearing for the purpose of developing a record which would show how the various jobs performed by unit personnel impacted on the safety of the flying public.

 Job Description and Duties of Unit Personnel:

             The AF unit members subject to drug testing hold the following position titles; Electronic Technician, Engineering Technician, Computer Operator and Maintenance Mechanic.

             Electronic Technicians maintain and repair electronic systems used in the air traffic control system.  These systems include communications equipment, radar, navigational aids and computers.  Fifty to seventy five percent of the Journeymen Electronic Technicians hold certification authority which enables them to certify that the various systems which they maintain and repair are operating within prescribed tolerances.

             Electronic Technicians are responsible for the navigational aids which give the distances between points, instrument landing systems which give vertical and horizontal guidance to aircraft, "BOT and the tack-ins" which give the aircraft the distance to airports, and the radar which covers all the airspace within the United States.

  Engineering Technician

           Engineering Technicians serve as Journeymen Environmental Engineering Technicians in the Environmental Unit in a General National Airspace(GNAS) Sector with a high traffic airport containing a Level III or higher Air Traffic Control Tower (ATCT).  The Engineering Technicians responsibilities require the utilization of multiple, unrelated, skills typically encountered within the electronics, electrical, and mechanical engineering fields to independently monitor, evaluate, operate and maintain complex electronics, electrical, heating and refrigeration, and plants systems and/or equipment.  Failure of one of the critical environmental systems may cause a complete breakdown in Air Traffic Control of the ATCT/National Airspace System (NAS).

 Computer Operators

             Computer Operators perform duties related to the operation of a complex computer system installation in a multi-programming and teleprocessing environment, coordinate all user effort associated with the system to provide users with desired output and/or to test new programs.  Such employees work in a three shift continuous operation environment and allocate computer system resources to attain maximum efficiency.  They control and monitor the Host computer system, including the central processor, the direct access storage, the peripheral subsystems, and allocate the various resources of the computer system.  The Host computer is the main computer from which the air traffic controllers derive their flight information.  The Computer Operator assures the availability of the standby NAS, and assists users in processing time critical programs such as lost aircraft, aircraft accidents, incidents, and system errors. Additionally, they perform system analysis for system improvement for VM/MVS/RSCS and NAS standby, and are responsible for identifying and resolving NAS en route operational program problems.     

  Maintenance Mechanic

             Maintenance Mechanics are responsible for maintaining and repairing visual navigational aids, such as approach lights, electrical cable and distribution systems, engine generators and air conditioning systems. 

             The AVN unit members subject to drug testing hold the following position titles; Airspace System Inspection Pilot, Airborne Technician and Aircraft Mechanic. 

Airspace System Inspection Pilot

             An Airspace System Inspection Pilot (ASIP) is responsible for the development of terminal/enroute procedures and in-flight inspection certification of air navigational aids which make up NAS.  The ASIP participates as aircraft commander or second-in-command in the in-flight evaluation of air navigational aids and instrument procedures for purposes of evaluating air navigational aids and instrument procedures, and verification of system safety and operational suitability.

 Aircraft Mechanic

            An Aircraft Mechanic is responsible for inspection and repair of highly complex turbine powered reciprocating engine aircraft, interpreting and trouble shooting pilot flight complaints and discrepancies based on the information presented, and, detecting malfunctions on routine inspections.  The aircraft mechanic is required to work near rotating propellers, operating jet engines, etc. 

 Electronic Technician (Airborne)

            An Electronic Technician (Airborne) is responsible for airborne analysis and evaluations of ground navigational facilities with respect to accuracy and usability.  The Airborne technician uses highly complex avionic computerized flight analysis systems and equipment in high performance flight check aircraft for purposes of certifying the safety and technical integrity of the NAS.  The Airborne technician is responsible for the analysis and technical evaluation of data through the interpretation and conversion of analog and digital information, upon which a decision is made as to whether the facility is operating within its assigned parameters, and can be certified for the safe and efficient movement of air traffic through the NA.

             The FAA periodic drug testing program that was in effect immediately prior to the random drug testing program currently in effect no longer exists.  It would take approximately six months to a year to reinstitute the periodic drug program which, according to the testimony of Ms. Harnetta Williams who is responsible for FAA's internal drug testing program, was not applicable to any of the employees currently represented by the Union.[3]

                 Since the inception of the random drug testing program in September l987, there have been 25l positive drug tests out of 74,805 random tests of employees, or .34 percentage rate.  The cumulative rate of positives has steadily declined since l987.  The total number of positive drug tests for the PASS unit since the inception of random drug testing is 58.  According to Mr. John Reilly, Manager of Management Staff for the Associate Administrator for Airways Facilities, Washington, D.C., to his knowledge, since post-accident drug testing was implemented in l987 there has been no accident attributed to the use of drugs by unit personnel.

             FAA does not randomly test for alcohol or prescription drugs and there have been occasions where FAA employees have reported to work intoxicated by alcohol.  The employees of private contractors, such as AT&T which operates the telephone lines which support FAA's computer system and provides important equipment services to the Airways Facilities work force, are not subject to random drug testing.

             Due to the low rate of positive drug tests, the Inspector General of the U.S. Department of Transportation (DOT) recommended, and the FAA concurred, that the rate of testing under the random drug testing program be reduced from 50 percent of all employees subject to testing to 25 percent.  In this latter regard, the IG noted that a "positive rate of .23 percent indicates a very low rate of drug use."  The .23 percent figure was for Fiscal Year l990.

      According to the uncontroverted credited testimony of Mr. John J. Reilly and Mr. John Daniel Pearsall, Associate Administrator for Airways Facilities and Manager of the Sacramento Field Office, respectively, who collectively have been employed by the FAA for some 50 years in various capacities and have extensive personal knowledge of the duties performed by the above cited personnel currently represented by the Union, a miscalculation by any of the personnel could have a catastrophic impact on the flying public, their fellow workers and the FAA's operations.  In reaching the aforementioned conclusions, both Mr. Reilly and Mr. Pearsall described in detail the functions of the job classifications and how an error or miscalculation by the person performing any of such job classifications could result in disaster.     

Discussion and Conclusions

            The Union takes the position that a status quo ante remedy is warranted.  In support of its position the Union relies on, among other things, the evidence showing that FAA has a very low rate of drug use, the fact that positive results from random drug testing have shown such a steady decline that the FAA has reduced the rate of random testing, the fact that there has not been an aviation accident attributable to drug impairment of a bargaining unit member, the fact that FAA does not test for the use of prescription drugs or alcohol, the fact that there is no random drug testing of employees of private contractors who perform work seriously impacting on the safety of the National Airspace System, and that any testimony to the contrary is based on mere speculation.

            Respondent and the General Counsel, on the other hand, take the position that a status quo ante remedy is not warranted.  Thus, while they acknowledge that there has not been an accident which was attributable to the use of prohibited drugs by unit personnel and that there has been a decline in the number of positive test results from random testing, they feel that since the potential for a catastrophic accident always exists the FAA can not, even for a short period of time, be without a drug testing program.

             While I agree that the record evidence indicates that there never has been an accident attributable to drug use by unit personnel and that there has been a decrease in the number of positive results from the current random drug testing program, that employees of private contractors whose work seriously impacts on the safety of the National Airspace System are not subjected to drug testing and that there is no testing for the use of alcohol or prescription drugs, I can not find that a status quo ante remedy is in order.  This is particularly true when one considers that, a number of the unit employees work without any direct supervision and hence are not susceptible to drug testing on the basis of reason-able suspicion, the decrease in positive results from the random testing is most likely attributable to fear of discovery, the FAA is under an obligation to insure the safety of the flying public and, discontinuance of the current random drug testing program would result in the absence of any drug testing program for a number of months.  Add to the foregoing conclusions, the fact that one miscue by a unit employee under the influence of prohibited drugs could result in a catastrophe, it is obvious, in this writers's opinion, that a status quo ante remedy would disrupt and/or impair the efficiency and safety of the National Airspace System operated by Respondent and be a disservice to the flying public.

      Accordingly, it is recommended that the Authority not order a status quo ante remedy.

 Issued, Washington, DC, July 29, 1993

                                                                               ______________________________
 
                                                                                    BURTON S. STERNBURG
                                                                                      Administrative Law Judge

_____________________________________________________________________

ALJ's FOOTNOTES

[1]The Authority in its original decision, reported in 40 FLRA 690, found that the Federal Aviation Administration had violated Section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute by instituting a new drug testing program on September 8, 1987, prior to completing bargaining thereon with Charging Party.  The Authority, however, declined to grant a status quo ante order on the ground that such an order "would be detrimental to the efficiency and effectiveness of the FAA's operations."  The Charging Party appealed the failure of the Authority to issue a status quo ante order to the District of Columbia Circuit. On June 22, l992, the Circuit Court issued its decision, 966 F.2d 702, wherein it held, among other things, that the Authority's reasoning for failure to issue a status quo ante class="MsoNormal" style="mso-pagination:widow-orphan;tab-stops:36.0pt 72.0pt 108.0pt 216.0pt 230.4pt 280.8pt">order was not supported by substantial evidence.  The Court remanded the case to the Authority "for further proceedings consistent with the accompanying memorandum", which stated, inter alia, "if . . . the Authority denies suspension in any respect, it must present an adequate explanation consistent with this opinion."

[2]It appears that only employees flying aircraft, i.e. pilots, were required to take annual physicals.