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PROFFESIONAL AIR TRAFFIC CONTROLLERS ORG. v. BOND

August 31, 1979

PROFFESIONAL AIR TRAFFIC CONTROLLERS ORGANIZATION, Plaintiff
v.
LANGHORNE M. BOND, Administrator Federal Aviation Administration, and UNITED STATES OF AMERICA, Defendants



The opinion of the court was delivered by: PENN

MEMORANDUM ORDER

 This comes before the Court on the motion for preliminary injunction filed by the plaintiff and the motion to dismiss, or in the alternative, for summary judgment, filed by the defendants.

 The plaintiff, Professional Air Traffic Controllers Organization (PATCO) is the duly designated and certified collective bargaining representative for air traffic controllers and certain other persons employed by the Federal Aviation Administration (FAA). It filed this action, in which it seeks a declaratory judgment, mandamus and injunctive relief, on behalf of itself and all members and employees it represents. Langhorne M. Bond, is the Administrator of the FAA.

 The underlying facts are as follows: The FAA initiated the Aviation Safety Reporting Program (ASRP) in May 1975. The program was designed to increase the FAA's awareness of deficiencies and discrepancies in the national aviation system by encouraging the free and unrestricted flow of information that might be instructive in avoiding accidents or incidents before they occur. It was anticipated that the data collected by the program would provide a sound basis for improving the current aviation system, as well as establishing a better basis for design recommendations for future systems. The information to be used in the program was to be submitted voluntarily by pilots, controllers and others using and working in the aviation system. The program provided immunity to the reporter and all other persons involved in a reported incident. *fn1" In April 1976 the program was modified to one entitled The Aviation Safety Reporting System and was transferred to the National Aeronautics and Space Administration (NASA) to guarantee the anonymity of the reporters using the system and increase the flow of information.

 The July 1975 Collective Bargaining Agreement (Agreement) between PATCO and FAA provided for a waiver, for a period of two years beginning May 1, 1975, of the FAA's right to take disciplinary action against any bargaining unit employee who met all the requirements of the reporting program. That waiver was extended in the Agreement between PATCO and FAA dated March 1978 (Deft.Mo.Ex.A), which provides in Article 70 as follows:

 
Article 70 Immunity Program
 
Section 1. The Employer agrees, for a period of three years beginning from the effective date of this agreement, to waive the right to take disciplinary action against any bargaining unit employee who meets all the requirements of the aviation safety reporting program published by the Employer on April 22, 1975, as it may be clarified, modified, or expanded from time to time by the Employer at his discretion. This waiver does not extend to incidents not covered by the program, criminal offenses, gross negligence, willful misconduct, or accidents.
 
Section 2. The Employer acknowledges and shall comply with the Union's written request to preserve the anonymity of members of the unit who participate in the program to the extent permitted by laws and regulations.

 The Agreement also contains a disputes settlement procedure in Article 7 which provides in Section 1 that:

 
Article 7 Disputes Settlement Procedure
 
Section 1. This Article provides the procedure for the timely consideration of grievances over the interpretation or application of this agreement. This procedure does not cover any other matters for which statutory appeals procedures exist and Shall be the exclusive procedure available to the Parties and the employees in the unit for resolving grievances over the interpretation or application of this agreement. Any employee, group of employees or the Parties may file a grievance under this procedure. The Parties shall cooperate to resolve grievances informally at the earliest possible time and at the lowest possible supervisory level. (Emphasis the Court's.)

 Section 4 of Article 7 outlines the method and procedure to be followed in grievances filed by PATCO including the submission of disputes to an arbitrator. Section 5 of Article 7 provides that "(t)he decision of the arbitrator is final and binding". Section 11 of Article 7 provides that "(in) lieu of the normal procedures in the Article, the parties at the national level may, by Mutual agreement refer a particular grievance to expedited arbitration". (Emphasis the Court's.) Under the latter procedure, there are no briefs, no official transcripts, no formal rules of evidence and the arbitrator is required to issue his decision within five days.

 FAA represents that after the ASRP had been in effect for four years, it concluded that there were numerous serious incidents in which it could not discipline controllers and that the program provided only limited significant data not already known from other sources. (Failor Aff. P P 6-11.) As a result, the FAA decided to modify the criteria under which immunity would be granted. FAA notified PATCO of its intention on or about March 15, 1979, and published notice of The FAA Modifications in Aviation Safety Reporting Program (Modifications) in the Federal Register on March 26, 1979. See 44 Fed.Reg. 18128.

 The Modifications refer to the ASRP and note that the confidentiality feature of the NASA Reporting System "has proven to be totally effective" and that the "waiver of disciplinary actions by FAA against persons involved in incidents reported to NASA is unnecessary so far as reporter protection is concerned". It further notes "that the immunity feature has been used by some reporters for the purpose of avoiding enforcement actions for violations" and that failure to take disciplinary action can no longer be justified when knowledge of a violation is obtained independently of any report filed with NASA. Finally, the Modifications set forth a new procedure which protects the reporter but not others who may be involved in an incident, the reporter being protected only where he makes a timely report within ten days, but further ...


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