LR Corner
Wednesday, March 23, 2011

NATCA Turns Back Agency's Efforts to Constructively Remove Grievant

NATCA prevailed in an arbitration concerning a medical disqualification removal grievance. An ATC had been temporarily restricted due to a back injury and medication. That restriction converted into a permanent disqualification and FAA made plans to terminate the employee. In the meantime, though, the grievant was an invaluable employee in administrative “airspace automation” where he had worked in a staff support capacity (still an ATC) for many years. Due to his “restriction,” the grievant was placed in the staff support position “temporarily” where he did not need a medical. However, when the restriction converted to permanent disqualification, the FAA believed it could no longer allow the grievant to work the Article 45 duties. But, FAA and NATCA came up with a fix. FAA created a “temporary” staff support position and drafted the requirements around the grievant’s experience and qualifications. The grievant was supposed to get that job; however, the FAA then determined that, since the position was bid as a temporary detail rather than a reassignment, the incumbent would still have to have a medical clearance (even though no medical was needed for the actual duties of the position).

Therefore, although the FAA created the temporary position to be able to retain the grievant, it gave the position to a lesser-qualified employee. It then insisted that the grievant be removed due to his lost medical. Fortunately, because the grievant was so well regarded and numerous managers were clamoring to keep him somewhere, another organization picked him up immediately, albeit with some loss in pay. NATCA grieved the “constructive” removal and reassignment. The FAA took the position that by voluntarily moving to another position, the grievant could not grieve the removal and reassignment (and pay cut). The arbitrator disagreed and allowed the grievance to go forward since the employee was forced to take the down-grade on threat of termination.

Although the arbitrator found that the grievant could have done more to demonstrate his improved medical situation, he agreed with NATCA that the FAA’s failure to give the grievant the temporary support specialist position was improper. The arbitrator found that the FAA was required to put into the job bid any requirements for the position. Since the FAA hadn’t mentioned any need for a medical certificate in the bid, the arbitrator determined that it was improper for the FAA to include such a requirement after the fact, and therefore, the FAA couldn’t properly decline giving the job to the grievant since he was the best qualified. He also found that the subsequent removal/reassignment was improper as a result. The arbitrator ordered the agency to reinstate the grievant to the staff support position and make the grievant whole for any losses in pay and benefits resulting from the improper action.

This was a case where teamwork, especially from some unexpected quarters, really paid off. Several managers supported the grievant’s case, and the employee who received the temporary position testified on the grievant’s behalf that the grievant was actually better qualified. All of this evidence had a substantial impact on the arbitrator in convincing him that the failure to provide the temporary position was not “efficient” and made no sense. Another important issue here is that even where an employee accepts a down-grade or other alternative to removal, and does so “voluntarily,” that does not necessarily deprive him of the chance to grieve the threatened removal that caused the alternative action.