Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75 C 2044 - Prentice Marshall, Judge.
Fairchild, Chief Judge, Pell and Tone, Circuit Judges.
This is an appeal from the dismissal of the plaintiffs' action in the district court, 430 F. Supp. 301. Plaintiffs, who are air traffic controllers at O'Hare Airport, allege that the conditions of extreme stress under which they must work cause permanent damage to their health in violation of their rights. The rights assertedly violated under Count I were those guaranteed by the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 651 et seq. A second count realleging the same factual matters purported to rest upon a violation of the right not to be deprived of their jobs except for just cause by federal statutes and regulations, which deprivation allegedly was of due process of law. Defendants are officials of the Federal Aviation Administration (FAA) and the Civil Service Commission (CSC).
The gist of the plaintiffs' complaint is succinctly summarized in the district court's memorandum decision:
Plaintiffs contend that their working conditions impair their health and shorten their careers by a significant margin. Of the one hundred and twenty-five full time controllers currently working at O'Hare, one third have active permanent ulcers, and another third show symptoms of developing such ulcers before reaching the age of forty. FAA studies indicate that air traffic controllers at work experience more stress than military pilots flying in combat. The working conditions at the O'Hare tower are especially difficult because O'Hare is the world's busiest airport.
Plaintiffs sought a broad scope of relief from the federal courts as is evidenced by the prayer of the complaint which sought a permanent injunction against defendants generally from continuing to maintain the working conditions described in the complaint and specifically from requiring plaintiffs to work more than 32 hours in a work week (instead of a 40-hour work week) but without loss of pay; from continuing the present understaffing of controllers and the present inadequate training procedures; from continuing to engage in a haphazard introduction of inadequately tested procedures and machinery; and from continuing in force practices and procedures which preclude controllers from transferring to a facility of their choice after five years of duty at O'Hare. Affirmatively, additional compensation commensurate with the claimed extra workload was sought.
Plaintiffs alleged exhaustion of administrative remedies. Defendants moved to dismiss on the basis that the district court lacked jurisdiction of the subject matter of the case because, inter alia, plaintiffs had not exhausted available administrative remedies. The record, briefs, and oral argument reflect that there were three disparate procedures which could have been pursued:
1. The FAA unilateral grievance procedure (Method 1)
2. Great Lakes Regional Unsafe and Unhealthful Working Conditions Report (Method 2)
3. Grievance procedure in the labor contract entered between the FAA and the Professional Air Traffic Controllers Organization, AFL-CIO (PATCO) (Method 3)
Plaintiffs assert that prior to filing their suit they had followed Method 1 thinking this was a proper method because the agency grievance procedure purported to cover their problem in that it stated that the subjects of grievance included working conditions and environment. The Chief of the Air Traffic Controllers Division denied the grievance stating that this was his "final decision in this matter." Among other reasons given for the denial were that the grievance involved either the content of agency policy or the interpretation and application of the PATCO agreement and that such matters were specifically excluded from grievance coverage. Further, the denial stated that the requested remedies for the most part were beyond the authority of the agency to implement.
The district court in granting the motion to dismiss apparently was of the opinion that the pursuit of Method 1 was an insufficient exhaustion of remedies in view of the fact that Method 2 was available. Method 2 by its terms had been promulgated in accordance with a requirement (pursuant to Executive Order 11807, Occupational Safety and Health Programs for Federal Employees and implementing guidelines issued by the Secretary of Labor as 29 Chap. XVII, Part 1960) that a formal system be provided whereby employees could report unsafe or unhealthful working conditions to the designated agency safety and health officer. The document containing Method 2 provided for a five-tier review procedure with final resort to the United States Department of Labor in the event of dissatisfaction with final agency disposition.
Before adverting further to the matter of Method 2, we consider briefly the matter of Method 3 pursuit of which apparently the district court did not deem to be necessary. The PATCO contract is a comprehensive labor agreement containing 56 articles covering, inter alia, numerous aspects of working conditions. Article 46 dealing with safety and health provided in Section 1 that the employer should abide by Executive Order 11612 concerned with occupational safety and health. Plaintiffs conceded during oral argument that if they had utilized the PATCO agreement grievance procedure it ultimately would have gone to final ...