United States, Department of Transportation, Federal Aviation Administration, Fairbanks, Alaska (Agency) and National Association of Air Traffic, Specialists (Union)

[ v61 p677 ]

61 FLRA No. 137

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
FAIRBANKS, ALASKA
(Agency)

and

NATIONAL ASSOCIATION
OF AIR TRAFFIC
SPECIALISTS
(Union)

0-AR-3987

_____

DECISION

August 23, 2006

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator James R. Carr 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 to the Agency's exceptions.

      The Arbitrator invalidated a breath-alcohol test administered to the grievant and ordered make-whole relief. For the reasons that follow, we conclude that the award is contrary to management's right to determine its internal security practices under § 7106(a)(1) of the Statute, and we set the award aside.

II.      Background and Arbitrator's Award

      The grievant is an air traffic control specialist, who at the time of the dispute was working a rotational schedule at a remote site in Alaska. According to the published work schedule, on August 15, 2004, the grie-vant was scheduled to work a 10-hour shift commencing at 9 a.m. The grievant's supervisor met the grievant at the worksite shortly before 9 a.m. on August 15 and informed him that his name was on the random test list for a breath-alcohol test that day. According to the grievant, he advised his supervisor that he had changed his schedule the previous day and was not scheduled to start work until noon and that consequently, he could not be tested until noon when he would be on duty. The grievant's supervisor ordered the grievant to report for testing, and the grievant complied.

      The grievant's breath-alcohol level on the test was above the acceptable level and the grievant was removed from duty and from the rotational remote-site schedule. Subsequently, the Agency determined that the grievant should be removed for violation of Department of Transportation (DOT) Order 3910.1C (Drug and Alcohol-Free Departmental Workplace), and the Union filed a grievance on behalf of the grievant. The Agency held the removal in abeyance and offered the grievant a one-time opportunity to enter into a treatment and rehabilitation agreement, pursuant to which the removal would be cancelled if the grievant successfully completed a treatment program. The grievant accepted and successfully completed a program of treatment at his own expense.

      In its grievance, the Union alleged that the grievant had been "subjected to an improper substance test" and that management had "ignored and/or willfully violated" provisions of the parties' collective bargaining agreement. Exceptions, Exhibit 2, JX 3. The grievance was not resolved and was submitted to arbitration.

      Noting that the parties "did not mutually agree on a joint issue statement[,]" the Arbitrator framed the issues as follows:

1.      Did the Agency violate the agreement when it required the grievant to submit to random alcohol testing on August 15, 2004?
2.      If so, what is the remedy?

Award at 4.

      According to the Arbitrator, the Union "contend[ed] the test was invalid primarily because the [g]rievant was not on duty when the [test] was administered." Id. at 10. The Arbitrator further stated that the Union "also allege[d] the test was invalid for several other reasons: The paperwork was not properly filled out; the tester was not properly trained and certified; and management covered up the flaws in the testing procedure." Id. at 10-11. The Arbitrator also noted the Agency's contentions that the grievant "was in duty status" when he was tested and that "the errors committed by the [test] administrator were ministerial in nature and not fatal flaws in the testing procedure." Id. at 11-12.

      The Arbitrator found that the parties' agreement "is silent on the issue of testing rotational employees[,]" and that "a binding past practice did not exist regarding [ v61 p678 ] the testing of rotational employees while on assignment" to a remote location. Id. at 17. Having found that there was no agreement provision or past practice that precluded the Agency from testing rotational employees, who were assigned to a remote site, at that site, the Arbitrator next rejected the grievant's version of events and found that "it is more likely than not that the [g]rievant was scheduled for duty at 9 a.m. on August 15th and that he was in duty status when the alcohol test was administered." Id. at 21.

      After determining that nothing prevented the Agency from requiring the grievant to take the alcohol test, the Arbitrator addressed the Union's "numerous" challenges to "the validity of the alcohol test[,]" including the Union's charge that "[t]he test administrator was not properly certified to administer such test since his training was not current." Id. In agreement with the Union, the Arbitrator ruled that the breath alcohol technician who administered the test failed to meet the training standards of DOT Order 3910.1C and that as a result, the test was "invalid." Id. at 24-25.

      As his award, the Arbitrator sustained the grievance, directed the Agency to expunge the grievant's record, and granted the grievant make-whole relief. [n1] 

III.      Positions of the Parties

A.      Agency's Exceptions

      The Agency contends that the award is contrary to law and regulation, is based on a nonfact, and fails to draw its essence from the collective bargaining agreement. The Agency also contends that the Arbitrator exceeded his authority.

      In contending that the award is contrary to law, the Agency argues that the order to expunge the grievant's records conflicts with management's right to determine its internal security practices under § 7106(a)(1) of the Statute. The Agency asserts that random drug and alcohol testing of employees in critical positions and the necessary follow-up activities to the testing constitute an exercise of management's right to determine its internal security practices. The Agency claims that invalidating the grievant's positive alcohol test and requiring the Agency to expunge the grievant's record impermi-ssibly affect the exercise of management's right. The Agency further claims that the Arbitrator's sole basis for sustaining the grievance was the violation of DOT Order 3910.1C and that DOT Order 3910.1C is not enforceable in arbitration as a limitation on management's right to determine its internal security practices. The Agency argues that there is no evidence that the award constituted an enforcement of a contract provision negotiated pursuant to § 7106(b) of the Statute.

      The Agency also contends that the Arbitrator's ruling that the alcohol test was invalid because the technician failed to meet the training standards of DOT Order 3910.1C conflicts with management's right to assign work under § 7106(a)(2)(B) of the Statute. The Agency claims that by ordering the grievant's records expunged, the award affects the exercise of management's right and is not based on an enforcement of a contract provision negotiated pursuant to § 7106(b)(3). In addition, the Agency contends that the award also restricts the Agency's ability to continually evaluate the medical qualifications of controllers in violation of management's right to assign employees under § 7106(a)(2)(A).

      The Agency further contends that portions of the remedy directed by the Arbitrator are contrary to the Back Pay Act. The Agency argues that there is no legal basis for compensating the grievant for his personal time involved in his treatment program, out-of-pocket expenses incurred in completing the rehabilitation plan, or lost benefits such as the equivalent cash value of lost airline miles.

      In contending that the Arbitrator exceeded his authority and that the award fails to draw its essence from the parties' collective bargaining agreement, the Agency asserts that the award is deficient by addressing the issues of the grievant's referral to a rehabilitation program and the technician's certification. The Agency argues that the referral to a rehabilitation program is excluded from the coverage of the negotiated grievance procedure by Article 40 of the agreement and that the issue of the technician's certification was never raised at any previous level of the grievance process and was beyond the scope of the issue as framed by the Arbitrator.

      In contending that the award is contrary to regulation and is based on a nonfact, the Agency argues that the Arbitrator's determinations that the technician failed to meet training standards and that such failure invalidated the test are contrary to DOT Order 3910.1C. [ v61 p679 ]

B.      Union's Opposition

      The Union contends that the Agency's exceptions should be denied because the award is consistent with the parties' collective bargaining agreement, DOT Order 3910.1C, and the Back Pay Act.

      The Union claims that the award does not violate management's right to determine its internal security practices because the "[a]ward is in compliance with" Article 82, Sections 1 and 7 of the collective bargaining agreement. [n2]  Opposition at 4. The Union argues that under Section 1, the Arbitrator's determination that a violation of DOT Order 3910.1C had occurred rendered the test invalid and that under Section 7, the Agency agreed to expunge all information pertaining to an invalid test. The Union asserts that the Agency must not be allowed to refuse to comply with the procedures it negotiated in the agreement. The Union also claims that the award does not violate § 7106(a)(2)(B) because the award is consistent with the training requirements of DOT Order 3910.1C.

      The Union further claims that the Arbitrator did not exceed his authority and the award does not fail to draw its essence from the agreement because Article 40 of the agreement gave the Arbitrator full authority to issue the award.

      Finally, the Union claims that the make-whole remedy is supported by the Back Pay Act because the grievant is entitled to receive all the pay, allowances, and differentials he would have received if the unwarranted action had not occurred.

IV.      Preliminary Matter

      The Union also contends that a letter from the employer of the technician, a copy of DOT Order 3930.3A (Air Traffic Control Specialist Health Program), and a copy of Office of Personnel Management qualification standards for the controller position, which the Agency has attached as exhibits to its exceptions, should not be considered by the Authority because they were not submitted to the Arbitrator and were not served on the Union. As discussed infra, we conclude that the award is deficient on the ground that the award is contrary to management's right to determine its internal security practices under § 7106(a)(1) of the Statute. In finding the award deficient, it was unnecessary to consider the challenged exhibits. Consequently, we need not resolve the Union's objection to the Agency's submission of those exhibits. See United States Dep't of Veterans Affairs, Ralph H. Johnson Med. Ctr., Charleston, S.C., 56 FLRA 381, 384 n.1 (2000).

V.      Analysis and Conclusions

      For the reasons that follow, we conclude that the award is contrary to § 7106(a)(1) of the Statute.

A.      Standard of Review

      When an exception involves the award's consistency with law, we review any question of law raised by the exception and the award de novo. See, e.g., NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we assess whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See, e.g., NFFE Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, we defer to the arbitrator's underlying factual findings. See id.

B.      Applicable Standard of Law

      When resolving an exception which contends that the award is contrary to a management right under § 7106(a) of the Statute, we first determine whether the award affects the exercise of a management right. If the award affects the exercise of a management right, we apply the two-prong test established in the Authority's decision in United States Dep't of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 53 FLRA 146 (1997) (BEP). Under prong I of the BEP test, as applicable in this case, the Authority considers whether the award provides a remedy for a violation of a contract provision negotiated pursuant to § 7106(b) of the Statute. See id. at 153. Under prong II, the Authority considers whether the award reconstructs what management would have done had it not violated the contract provision in dispute. See id. at 154.

C.      The Award Affects Management's Rights

      The Union does not dispute the Agency's contention that the award affects management's right to determine its internal security practices. Moreover, the Authority has found that management's right to determine its internal security practices under § 7106(a)(1) encompasses the right to test employees in sensitive positions on a random basis to determine whether those employees use illegal drugs. See, e.g., IAM, [ v61 p680 ] 59 FLRA 830, 831 (2004). Accordingly, by invalidating the breath-alcohol test of the grievant and awarding make-whole relief, the award affects management's exercise of its right to determine its internal security practices.

D.     The Award Fails to Satisfy Prong I

      Under prong I of BEP, an award may permissibly affect the exercise of a management right under § 7106(a)(1) only when remedying the violation of a contract provision negotiated pursuant to § 7106(b) of the Statute. The Arbitrator did not find a violation of the parties' collective bargaining agreement. Instead, the award is specifically based solely on DOT Order 3901.1C and expressly remedies only the failure of the technician who administered the test to meet the training requirements of the order. Consequently, the award does not satisfy prong I because the award does not provide a remedy for a violation found by the Arbitrator of a contract provision negotiated pursuant to § 7106(b). See, e.g., United States Dep't of Transportation, Fed. Aviation Admin., 58 FLRA 175, 179 (2002) (award impermissibly affected management's right under § 7106(a)(1) to determine its organization).

      As the Authority has recognized, management rights under § 7106(a)(1) are subject only to contract provisions negotiated pursuant to § 7106(b) of the Statute. Management rights under § 7106(a)(1) are not subject to the applicable law exception that applies to rights under § 7106(a)(2). See id. at 178. Accordingly, even if DOT Order 3901.1C, constitutes an applicable law within the meaning of § 7106(a)(2) of the Statute, DOT Order 3901.1C is not a limitation on the exercise of management's right to determine its internal security practices that was enforceable by the Arbitrator consistent with management's right. See id. (FAA Order 7210.3 was not a limitation on management's right under § 7106(a)(1) to determine its organization that was enforceable in arbitration).

      In addition, the Union's argument that the award is supported by Article 82 of the parties' collective bargaining agreement provides no basis on which to find that the award satisfies prong I. The Authority has specifically held that to satisfy prong I on the basis of a contract provision negotiated pursuant to § 7106(b), an arbitrator must "explicitly link" any remedy to the agency's violation of a provision in the parties' agreement. United States Dep't of Veterans Affairs Med. Ctr., Northhampton, Mass., 53 FLRA 1743, 1745 (1998). The Arbitrator in this case did not link his remedy to the Agency's violation of a provision i