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66328589
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[Air Traffic Controllers]
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66328589
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[Air Traffic Controllers]
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Records of the Office of the Chief of Staff (Reagan Administration)
James Cicconi's Subject Files
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66328589
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1985-12-31
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1985
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1981-01-01
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1981
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WHITE HOUSE OFFICE OF RECORDS MANAGEMENT: Subject File
File Transfer
by the Reagan Library Staff
Previously filed:
Textiles (3) Box 13 Cicconi, James W.: Files
New file location: [Air Traffic Controllers] Box 6 Cicconi, James W.: Files
Date of transfer:
8/22/02 KDB
THE SECRETARY OF TRANSPORTATION
WASHINGTON, D.C. 20590
December 8, 1981
TO
:
Ed Meese
Jim Baker
Craig Fuller
FROM : Drew Lewis
Enclosed is a somewhat detailed explanation of our
recommendation to be discussed at the 5:45 p.m. meeting
today. It would be helpful if you would have a chance
to read this before our discussion. We will come prepared
to discuss the reasoning for this recommendation.
Encl.
Implementation of a Policy Which Enables
Former Air Traffic Controllers to be Considered
Re-Eligible for Federal Employment
The implementation of a policy to enable former Air
Traffic Controllers to be considered re-eligible for Federal
employment should contain the following elements.
1.
Removal of the automatic 3-year ban on re-
employment;
2.
Centralized review of the suitability of such
employees for Federal employment by the Office
of Personnel Management pursuant to normal OPM
criteria including consideration of strike and
strike-related activity; and
3.
A determination of unsuitability for employment
in any position with the Federal Aviation Admini-
stration.
The procedural and legal considerations underlying this policy are
discussed in the attached memorandum. The specific concerns which
have resulted in the recommendation of the particular elements out-
lined above are:
1.
OPM has announced that all discharged Controllers
are barred from all Federal employment for three years. The Presi-
dent has the legal authority to change OPM's determination. 5 U.S.C.
$ 3301. The effect of this change would be to place the former Con-
trollers in a position similar to that of all others being considered
for Federal employment and who must undergo a suitability determina-
tion prior to approval for hiring. This change can be done most
authoritatively by Executive Order.
2.
The President could under this same authority declare
all former strikers re-eligible for Federal employment without a
further suitability determination. However, this would remove the
safeguard of further investigation by OPM to screen out persons who
engaged in the kind of strike-related activity (e.g. violence, threats
of harm, etc.), which justifies their continued bar from all Federal
employment. Moreover, because the effect of such a declaration of
re-eligibility would be to remove strike activity from consideration
as a factor in determining an individual's suitability for Federal
employment, it would establish a substantial Executive precedent
that could impair the Executive's discretion in the event of future
strike situations. Further, because federal law clearly bans strike
activity and contemplates that an individual's engaging in strike
activity impacts eligibility for Federal employment, the removal
of any consideration of such activity might be challenged as
an abuse of Executive discretion. For these reasons, current
OPM procedures and criteria for determining the suitability of
any applicant for Federal employment should be used to investi-
gate applications by former Air Traffic Controllers for a
federal job or requests for general suitability determinations.
The President's action would permit consideration of each in-
dividual's application on a case-by-case basis with attention
to the nature of strike activity and resolve of the individual
to refrain from future strike activity.
3.
Individual applicants for Federal employment may
be found generally suitable, but declared ineligible for employ-
ment in a certain job or by a certain agency where it is found
that such employment would not promote the "efficiency of the
[Federal] service." The impact of hiring these discharged in-
dividuals into all other government agencies cannot be deter-
mined at this time without the assistance of the further OPM
investigation discussed above. However, it is firmly established
that the rehiring of these employees by the FAA will impact ad-
versely, not promote, the efficiency of this Agency's service.
The discharged employees struck against the FAA and have attempted
to justify their action on the basis of charges against FAA manage-
ment and supervision. Meanwhile, the FAA has engaged in a sub-
stantial rebuilding effort, restructuring air traffic operations
and hiring replacements to perform both the air traffic and cleri-
cal functions performed previously by the striking Controllers.
The Controllers who refused to strike or who returned to work
under the President's moratorium have worked in unprecedented
harmony with FAA management and supervision to continue effective
and safe air traffic operations. The FAA and its present employees
oppose rehiring the Controllers. If the Controllers were rehired,
it would impact on the morale of those who obeyed the law and re-
mained at work. Further, because Controllers must work as a team,
and are responsible for training developmental controllers and cer-
tifying trainees in all functional areas of air traffic operation,
returning those who struck could jeopardize the effective opera-
tion of the system and hamper rebuilding efforts.
For those reasons, the President's Executive Order
should make a specific exception from its general directive
changing the automatic three-year debarment for the striking
Controllers to the more normal procedure of permitting these
individuals to make application for determination of their
suitability for re-employment in the Federal Government, but
with the specific declaration that such individuals are deemed
by the President not to be suitable for re-employment at the
Federal Aviation Administration.
MEMORANDUM
Re: Implementation of a Policy of Reeligibility for Federal
Employment for Discharged Air Traffic Controllers
The Administration is considering whether to permit
former air traffic controllers who were discharged for striking
against the government to become eligible for federal employment
other than in their former positions. Should it be decided to
implement such a policy, it must be carefully planned and
executed in order to insure both the legal defensibility of the
action and the continued integrity of the air traffic control
system. It is crucial that the action not be vulnerable to
legal challenge which could ultimately result in judicially
mandated reemployment of discharged strikers in their former
positions. Nor should any executive action be subject to
interpretation by the general public or the current FAA
staff as a step leading to such rehiring.
The recommended method of implementing the policy
would be through a Presidential executive order and accompanying
public statement with the following elements. First, the
removal of the three-year debarment to federal employment for
discharged strikers which the Office of Personnel Management
has stated would be applied "automatically". Second, with the
lifting of the automatic debarment, discharged strikers'
eligibility for federal employment would be determined under
traditional suitability standards applied through established
OPM procedures. Third, utilizing the "efficiency of the
service" standard, express directions should be given to the
Director of OPM and the FAA Administrator that discharged air
traffic controllers will be deemed unsuitable for FAA employment.
Under 5 USC $3301, "the President may prescribe
such regulations for the admission of individuals into the
civil service in the executive branch as will best promote the
efficiency of that service " While the President has delegated
general regulatory power over federal employment to the Director
of OPM, the Chief Executive retains the inherent authority to
amend or add to such a delegation as is consistent with $3301.
A directive by the President on the suitability for federal
employment of discharged air traffic controllers would be an
exercise of this power. In effect, the President would
promulgate a special suitability rule applicable to air traffic
controllers who struck in August, 1981, which OPM would then
enforce. It is suggested that an executive order on the issue
would constitute the most authoritative exercise of Presidential
power, and, thus, be most secure from judicial challenge.
In lifting the automatic three-year debarment
enunciated by OPM, the President would not necessarily preclude
the consideration of strike conduct in determining discharged
air traffic controllers' suitability. Rather, strike behavior,
as "misconduct in prior employment, 5 CFR 731.202 (b) (1),
could be considered by OPM, along with all other factors, to
determine individual applicants' suitability. Further, the
President's order need not require OPM to initiate suitability
review of discharged air traffic controllers under any special
procedure or added criteria. Rather, the order could adopt
established suitability procedures, which would require the
discharged strikers to request suitability determinations,
either through applications for employment or post-termination
requests for suitability review. 5 CFR $731.501.
The President's order and statement should unequivocally
reaffirm that discharged air traffic controllers will not be
returned to their former positions or any other employment with
the FAA. It is important that the President justify this policy
decision as one based on the "efficiency of the service"
standard - the standard which defines the scope of Presidential
authority under 5 USC $3301. Judicial review of suitability
determinations has focused on their justification in terms of
efficiency of the service, and, therefore, a Presidentially
promulgated rule that discharged controllers are unsuitable
for FAA employment must be rationally related to efficiency
concerns.
Under OPM regulations, "efficiency of the service"
is defined not only in terms of an individual's ability to
perform his job, but also the effect an individual has upon
others within the agency. 5 CFR 731.202 (a). The President's
decision not to return air traffic controllers to their former
positions is justified by the adverse effect such reemployment
would have upon the FAA's operational efficiency. This basis
for the President's decision should be emphasized in the
executive order. The President should expressly state that
returning discharged air traffic controllers to the FAA would
have a serious adverse effect upon other employees who properly
chose to honor their oaths and continue working. It may be
advisable to substantiate this concern for the employee relations
climate at the FAA as it relates to the system's efficiency with
a brief written report from the Administrator explaining the
probable adverse effect of reemploying the strikers. Such
a report should also substantiate the current operational
adequacy of the system, in order to anticipate an argument that
the "efficiency" of the system would be best served by reemploying
the discharged controllers. Substantiating the President's
decision through such background reports on the system's
efficiency and articulating the decision in terms of efficiency
concerns will best prepare for possible judicial challenge to
the special executive action.
-2-
Further, because the decision not to rehire controllers
to their former positions will be justified by the adverse
impact upon FAA, it would be prudent to expand the ban to
encompass any reemployment with the FAA. It would be difficult
to justify the decision not to rehire into former positions, if
the discharged controllers could exercise a similar adverse
impact in other FAA positions.
The President's statement should not expressly
state that the duration of the suitability bar to reemploy-
ment of air traffic controllers in their former positions is
permanent. Use of the word "permanent" or other similar terms
should be avoided because permanent debarment, even from a
single agency or type of position, can engender statutory and
constitutional problems. Moreover, it is implicit that any
President's exercise of such discretion is for a duration
coextensive with his term. Rather, the President could direct
both the OPM Director and the FAA Administrator that it is his
final decision that the controllers shall not be returned to
employment at the FAA.
The foregoing implementation approach is not free
from legal risks. A Presidential directive that discharged
controllers will be deemed unsuitable for re-employment at the FAA
can be judicially challenged as an arbitrary exercise of
discretion or outside the Chief Executive's authority to
regulate federal employment. However, such a legal attack can
be raised against virtually any special Presidential action
dealing with the controllers. Utilization of the OPM administered
suitability procedures to implement the policy also can lead to
legal challenges to allegedly discriminatory application of those
procedures. This risk, however, appears outweighed by the
benefit of utilizing established OPM suitability procedures for
enforcing the statutory ban on employment of strikers. Any
alternative approach for implementing the policy on rehiring
discharged controllers would create similar and potentially
more serious risks of legal challenge. An implementation
method relying upon an executive order directing OPM suitability
determinations provides the firmest legal basis for the Adminis-
trator to institute its policy.
-3-