United States, Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers Association, AFL-CIO (Union)

[ v60 p584 ]

60 FLRA No. 116

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, AFL-CIO
(Union)

0-AR-3856

DECISION

_____

January 14, 2005

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on exceptions to an award of Arbitrator Jerome H. Ross filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition.

      The Arbitrator found that the Agency violated Article 93 of the parties' collective bargaining agreement and ordered the Agency to amend all rehabilitation agreements signed after a certain date covering employees who referred themselves for drug or alcohol abuse treatment. For the following reasons, we find that the award must be set aside.

II.      Background and Arbitrator's Award

A.      Background

      Members of the bargaining unit in this case are Air Traffic Controllers. Because of the safety-related nature of their work, they occupy Testing Designated Positions (TDP). As such, they are subject to random, post-accident, and reasonable-suspicion drug and alcohol testing pursuant to the Agency's Order 3910.1C (Order). The drug and alcohol program under the Order provides for self-referral, i.e., employees may voluntarily seek treatment and rehabilitation for drug and alcohol problems through the Agency's Employee Assistance Program (EAP).

      If employees refer themselves through the EAP, they are not subject to discipline, as long as they comply with their individual treatment and/or rehabilitation plan. If the treatment and/or rehabilitation program is unsuccessful, employees are issued a last-chance agreement and a proposed removal is held in abeyance pending successful completion of this last opportunity for rehabilitation.

      Chapter VII, paragraph 5 of the Order provides that employees who voluntarily refer themselves "shall not be subject to disciplinary action (based only on substance abuse), return-to-duty testing, or a follow-up testing period[,]" if they complete an EAP-recommended rehabilitation program and "thereafter refrain[] from any further instance of use of illegal drugs or alcohol misuse in accordance with the policy" of the Order. Award at 3. These conditions are also stated in the Agency's self-referral policy dated August 8, 1995, which also provides that if a self-referred employee adheres to his or her rehabilitation plan, and if that employee's follow-up testing is negative for a minimum of one year, the employee "will have successfully completed the rehabilitation program" and will not be monitored any further. Id.

      In a memorandum dated November 15, 1995 (memorandum), the Agency clarified the requirements governing rehabilitation plans set forth in the Order. Specifically, the memorandum stated that "[i]t is the universal practice of substance abuse treatment facilities to require lifelong abstinence from alcohol whether the diagnosis is alcohol abuse or alcohol dependence." Id. (quoting from paragraph 10 of the memorandum). It further stated that "a lapse from abstinence" would be considered "a relapse that would require further therapeutic intervention." Id. Finally, the memorandum emphasized that all rehabilitation plans for safety-related positions "should require that each employee refrain from alcohol use throughout his or her [Agency] career." Id. at 4.

      The parties' collective bargaining agreement, Article 93, Section 3.b. (Section 3), dated September 1998, essentially restates the Order, providing that an employee will not be subject to discipline if the employee completes an EAP-recommended rehabilitation program and "refrains from any further use of illegal drugs or alcohol misuse[.]" Id. (quoting Article 93). [n2]  The Union filed a grievance complaining that the requirement of abstinence throughout an employee's career set forth in the memorandum violated Article 93, which provides that employees are required [ v60 p585 ] only to avoid alcohol misuse. The parties were unable to resolve the grievance and it was submitted to arbitration.

B.      Arbitrator's Award

      The parties did not stipulate to the issue in the case. The Arbitrator framed the issue as follows:

Whether the Agency violates Article 93 of the Agreement by issuing a rehabilitation/treatment plan that requires an employee who self-refers to the EAP for alcohol and/or drug abuse to abstain from alcohol use for the remainder of his or her [Agency] career; and if so, what shall be the remedy?

Award at 5.

      According to the Arbitrator, the Union claimed that the policy set forth in the memorandum requiring career-long abstinence from alcohol is inconsistent with the provision of Article 93 which requires employees to refrain from misuse of alcohol. The Union argued to the Arbitrator that the policy in the memorandum changes the basis for disciplinary action and is inconsistent with Section 1 of Article 93 (Section 1). The Union also maintained that the Agency's policy is inconsistent with Section 8 of Article 93 (Section 8) because it prolongs rehabilitation programs beyond the point at which an employee has successfully completed the program. In this regard, the Union pointed out that the Agency's policy also provides that an employee's follow-up tests must be negative for a "minimum of 1 year[.]" Award at 6 (quoting Agency policy statement of August 8, 1995). The Union argued that this policy is inconsistent with Section 8, which requires that tests be negative for 1 year.

      The Agency argued to the Arbitrator that the Union's grievance, as filed, contended only that the Agency's policy requiring career-long abstinence from alcohol by employees who self-referred violated Article 93 of the parties' agreement. Agency's Brief to the Arbitrator at 3. The Agency also argued to the Arbitrator that the theories advanced by the Union at the hearing as to the bases on which the policy violated Article 93 differed from that articulated in the grievance. The Agency contended that the Arbitrator should resolve only the issue stated in the Union's grievance.

      In addition, the Agency maintained before the Arbitrator that the abstinence requirement is not a disciplinary matter, but a medical concern, i.e., it is "another facet of the employee's treatment plan[.]" Award at 7. According to the Arbitrator, the Agency claimed that disciplinary matters are governed by the Order, not by the treatment plan. Moreover, the Agency asserted that the Order "is not intended for use in determining the proper clinical treatment of a substance abuser." Id. at 8. The Agency asserted that inclusion of the requirement of career-long abstinence in rehabilitation plans does not violate Section 8 because the 1-year period applies only to follow-up testing. The Agency explained that "completion of the rehabilitation phase of the treatment means that the employee is no longer actively monitored by the Agency; but it does not mean that the employee can disregard abstinence, which is the most fundamental component of the treatment." Id. at 9.

      The Arbitrator addressed the Union's claims that the Agency's abstinence policy violates Article 93 because: (1) "a total abstinence requirement conflicts with the term `alcohol misuse'"; (2) "reference to removal for violation of a career-long requirement for total abstinence in the rehabilitation/treatment plans of self-referred employees" is inconsistent with the requirement not to identify self-referred employees for disciplinary action; and (3) "a total abstinence requirement is inconsistent" with the intent of Section 8 "to ensure that successful completion of the one-year rehabilitation/treatment plan . . . would place a self-referred employee on equal footing with all Agency employees." Id. at 11.

      As to the Union's claim regarding the phrase "alcohol misuse," the Arbitrator noted that there was no evidence that the phrase was ever discussed in bargaining. Further, the Arbitrator stated that "substantial deference" should be accorded to the Agency interpretation because it drafted the Order from which the phrase was derived. Id. at 12. Moreover, the Arbitrator found that rehabilitation or treatment plans for self-referred or management-referred employees are a medical matter and that abstinence is generally prescribed for medical reasons, not disciplinary purposes. According to the Arbitrator, if a self-referred employee is unsuccessful in maintaining abstinence after completion of the one-year rehabilitation or treatment plan, both the Order and Article 93 require that the employee receive another opportunity at rehabilitation. The Arbitrator found no inconsistency between the Agency's implementation of the Order in this regard and Article 93. That is, the Arbitrator concluded that the abstinence policy set forth in the Order did not violate Article 93. [ v60 p586 ]

      As to the second Union argument, the Arbitrator found that Article 93 provides only that self-referral will not be the basis of disciplinary action. He also found that reference in a rehabilitation or treatment plan to the possibility of future discipline resulting from instances of substance abuse is not inconsistent with such a provision. Rather, according to the Arbitrator, Article 93 simply provides that if an employee relapses after a first occurrence of self-referral, he or she will be treated as an employee who has a first occurrence of management referral. The Arbitrator states that Article 93 allows a self-referred employee another opportunity for treatment if he or she violates the abstinence requirement.

      The Arbitrator found, however, that the Agency's policy was contrary to Section 8. The Arbitrator found that Section 8 provides a 1-year rehabilitation or treatment plan if a self-referred employee successfully completes the plan. Because Article 102 of the parties' agreement creates an exception to Agency regulations and policies for conflicting provisions of the agreement, the Arbitrator found that the 1-year plan superseded the requirement of the Order for a minimum of one year. The Arbitrator also found that inclusion in the rehabilitation agreements of self-referred employees of a statement that violation of the abstinence requirement could result in discipline was inconsistent with the right of self-referred employees to another opportunity for rehabilitation if they violate that requirement.

      Consequently, the Arbitrator ordered the Agency to revise and reissue all self-referral agreements to: (1) reflect a change in the term of rehabilitation and treatment plans to one year; and (2) delete any provision that is contrary to the right of a self-referred employee to another opportunity for rehabilitation if he or she violates the abstinence requirement.

III.      Positions of the Parties

A.     Agency's Exceptions

      The Agency contends that the Arbitrator exceeded his authority by requiring it to revise and reissue all rehabilitation agreements to change the term of those agreements from "a minimum of one year" to "one year." Specifically, according to the Agency, the "grievance did not allege that the Agency was requiring employees to adhere to rehabilitation/treatment plans for longer than contractually mandated; nor did the issue, as formulated by the Arbitrator, question the term of rehabilitation/treatment plans." Exceptions at 6. The Agency maintains that the Union raised Section 8 only to argue that that section precludes the abstinence requirement from lasting longer than one year. The Agency states that the Arbitrator rejected that argument, finding that the abstinence requirement is not limited by the contractual limitation on the duration of rehabilitation or treatment programs. The Agency asserts that, given that conclusion, the Arbitrator should have ended his analysis.

      The Agency also contends that by requiring it to delete any provision of a rehabilitation plan that is contrary to the right of a self-referred employee to another opportunity for rehabilitation, if he or she violates the abstinence mandate, the Arbitrator exceeded his authority. According to the Agency, the award in this regard is "beyond the scope of the issue submitted." Id. at 12. The Agency notes the Union argument that the wording of some abstinence provisions, to the effect that the employee may be separated for violating the abstinence requirement, violates the provision in Article 93, Section 1 that self-referred employees who fail to remain abstinent must be given another chance at rehabilitation. The Agency also notes that the Arbitrator rejected the Union's argument because there was no evidence that the Agency removed self-referred employees after a first violation of that requirement. The Agency asserts that the Union's argument is "only tangentially related" to the issue framed by the Arbitrator. Id. at 13. The Agency also maintains that the Arbitrator exceeded his authority by issuing a remedial order to modify rehabilitation and treatment plans that are consistent with the agreement.

B.      Union's Opposition

      According to the Union, the Arbitrator framed the issue in terms of whether the Agency was violating Article 93 of the parties' collective bargaining agreement. The Union maintains that this is consistent with the manner in which the parties framed the issue. The Union argues that, consistent with Authority precedent, the Arbitrator addressed issues that necessarily arose from the question of whether the Agency violated Article 93. The Union notes, in this regard, that it argued to the Arbitrator that the self-referral rehabilitation and treatment plans which contain the abstinence requirement violate Article 93, Section 1 because they provide for the removal of the employee for violating that requirement, rather than affording him or her another opportunity at rehabilitation.

IV.      Analysis and Conclusions

      Arbitrators exceed their authority by failing to resolve an issue submitted to arbitration, resolving an issue not submitted to arbitration, disregarding specific limitations on their authority, or awarding relief to persons who are not encompassed by the grievance. See United States Dep't of Defense, Army & Air Force Exch. Serv., 51 FLRA 1371, 1378 (1996). When the parties fail to stipulate the issue, as in this case, the arbitrator [ v60 p587 ] may formulate the issue on the basis of the subject matter of the grievance. See United States Dep't of Defense, Educ. Activity, Arlington, Va., 56 FLRA 887, 891 (2000). However, although the arbitrator is free to formulate the issue, once the arbitrator has resolved that issue, or any additional matters that are necessary to the resolution of the issue as formulated, the arbitrator has fulfilled his or her obligation to the parties. If the arbitrator proceeds to address other issues, the arbitrator exceeds his or her authority. See, e.g., United States Dep't of Transportation, FAA, 59 FLRA 776, 777-78 (2004) (FAA); United States Environmental Protection Agency, Chicago, Ill., 58 FLRA 495, 495-96 (2003) (EPA).

      The Arbitrator framed the issue in terms of whether the career-long abstinence requirement set forth in the Order, and implemented in the rehabilitation and treatment agreements of self-referred employees, violates Article 93. The Arbitrator found that implementation of the requirement in those agreements was consistent with Article 93. He then proceeded to find that other aspects of the Agency's rehabilitation and treatment agreements were inconsistent with Article 93 based upon particular arguments that the Union made at the hearing. The Agency had objected to those arguments before the Arbitrator and requested that he confine his award to the question of whether the career-long abstinence requirement violated Article 93. Thus, this is not a case in which the manner in which the parties jointly argue the issue before the arbitrator expands the matters they are submitting to the arbitrator for resolution. Cf. United States Dep't of HHS, SSA, Office of Hearings & Appeals, 48 FLRA 833, 834, 838 (1993) (arbitrator did not exceed authority by addressing arguments raised by the parties where neither party objected to the arbitrator's addressing those arguments).

      Consequently, given the Arbitrator's clear and unambiguous formulation of the issues before him, the issues of whether rehabilitation and treatment agreements violated Article 93 by extending those agreements for more than one year and providing that self-referred employees would be denied another opportunity for rehabilitation were not before the Arbitrator for resolution. Based on that conclusion, we find that the Arbitrator exceeded his authority by deciding and ordering a remedy concerning issues that were not submitted to arbitration. See FAA, 59 FLRA at 777-78; EPA, 58 FLRA at 495-96.

      Accordingly, the Arbitrator's award is set aside.

V.      Decision

      The award is set aside.


APPENDIX

1. Article 93 of the parties' agreement provides, in relevant part, as follows:

ARTICLE 93
SELF-REFERRAL

Section 1. An employee who voluntarily identifies himself or herself as someone who uses illegal drugs or misuses alcohol, prior to being identified through other means, shall not be identified to the Agency on first occurrence of such self-referral, for the purposes of taking disciplinary action.
. . .
Section 3. An employee who voluntarily self-refers under this Article shall not be subject to disciplinary action based only on substance abuse, if the employee:
a. obtains counseling through the Agency's Employee Assistance Program, and completes EAP recommended rehabilitation; and
b. refrains from any further use of illegal drugs or alcohol misuse in accordance with the policy of DOT Order 3910.C.
. . .
Section 8. If the employee adheres to his/her rehabilitation/treatment plan, and all the employee's follow-up test results are negative for a period of one (1) year, the employee will have successfully completed the rehabilitation program. A last-chance agreement will not be required in order for the employee to enter into the rehabilitation plan.

Opposition, Attach. 6 at 163-65.

2. Article 102 of the parties' agreement provides, in relevant part, as follows:

ARTICLE 102
EFFECT OF AGREEMENT

Section 1. Any provision of this Agreement shall be determined a valid exceptio