File 2: Opinion of Member Pope
[ v60 p588 ]
Dissenting Opinion of Member Pope:
I disagree with the majority that the Arbitrator exceeded his authority. Therefore, I dissent.
The Authority has long afforded arbitrators substantial deference in interpreting the issues to be decided in arbitration, particularly in the absence of a stipulation by the parties. See United States Dep't of Transp., Fed. Aviation Admin., Chicago, Ill., 41 FLRA 1441, 1448 (1991). The law is clear in this regard that, in formulating and resolving the issues before them, arbitrators may rely on the arguments raised before them by the parties. See, e.g., United States Dep't of Health and Human Serv., SSA, Office of Hearings and Appeals, 48 FLRA 833, 838 (1993); cf. SSA, Balt., Md., 57 FLRA 181, 183 (2001) (according deference to arbitrator's interpretation of stipulated issue based on parties' arguments and concluding that arbitrator did not exceed his authority).
Here, the Arbitrator framed the issue as whether the Agency violated Article 93 of the parties' agreement by requiring certain employees to abstain from alcohol use for the duration of their employment. In resolving this issue, the Arbitrator considered the parties' arguments concerning the effect of the abstinence requirement on §§ 1 and 8 of Article 93. Doing so, the Arbitrator found that "the grievance has merit in two respects" and determined that the Agency's abstinence policy violated Article 93, §§ 1 and 8 of the parties' agreement. Award at 14.
The majority claims that, because the Agency "objected" to certain Union arguments, "this is not a case in which the manner in which the parties jointly argue the issue before the arbitrator expands the matters" to be resolved in arbitration. Majority Decision at 8. The majority provides no support for the notion that parties must "jointly argue" an issue before an arbitrator may resolve it. Indeed, the majority makes no attempt to even explain what it means to "jointly argue" an issue. Whatever the majority intends, however, circumstances where, as here, an arbitrator resolves an issue on which both parties make arguments surely suffice. As set forth below, the Agency had ample opportunity to, and in fact did, respond to all of the Union's arguments presented to the Arbitrator.
In this regard, the Union argued to the Arbitrator that the Agency's abstinence policy violated Article 93, § 8 "by not terminating the self-referral rehabilitation programs, which have a definite beginning and end and are not on-going for the remainder of an employee's career." Award at 6. In response, the Agency argued that § 8 "applies the one-year period only to follow-up testing." Id. at 9. The Arbitrator found that § 8 "establishes the term of `the rehabilitation/treatment plan . . . for a one (1) year period'" and he found that the provision "supersedes the Agency policy, which specifies `a minimum of 1 year' as the term of a rehabilitation program." Id. at 14. Based on this finding, he ordered the Agency to revise its rehabilitation/treatment plans to "reflect a change in the term of [the] rehabilitation/treatment plans from `a minimum of one year' to `one year,'" consistent with § 8, as he interpreted that provision. Id. This portion of the award is directly responsive to the parties' arguments.
In addition, the parties specifically disputed before the Arbitrator the effect of the Agency's abstinence requirement on discipline. Relying on testimony that "violating the abstinence clause . . . may result in separation[,]" the Union argued that "the abstinence clause sets the stage for discipline" in violation of Article 93, § 1. Id. at 5. In response, the Agency argued that "the abstinence provision does not create a new basis for discipline because it is a medical . . . requirement[.]" Id. at 7. Agreeing that "abstinence is a medical requirement, not a disciplinary measure[,]" the Arbitrator interpreted Article 93, § 1 as giving a self-referred employee the "right . . . to be provided another opportunity for treatment in all cases where he or she violates the abstinence provision." Id. at 13-14. Based on this interpretation, he ordered the Agency to "revise or delete any provision" providing that "a violation of the abstinence provision at issue `may result in separation[.]'" Id. at 14. This portion of the award also is directly responsive to the parties' arguments.
Consistent with the foregoing, there is no question that the issues the Arbitrator resolved were fully addressed by the parties. As such, there is absolutely no support for the majority's conclusion that these issues "were not before the Arbitrator for resolution." Majority Decision at 8. Therefore, I would deny the Agency's exceeded authority exception. See AFGE, Local 916, 47 FLRA 692, 697-99 (1993) (arbitrator did not exceed his authority by resolving an issue that was "not explicitly referenced in the grievance itself" where the "parties were given the opportunity . . . to address the issue").
I also would deny the Agency's contrary to law exception. In this regard, the Agency's claim that the award violates management rights is based on its misreading of the award as precluding the Agency from deciding that a self-referred employee is medically unfit for duty. As the Union explains, the Agency is free to make fitness-for-duty determinations based on FAA Order 3930.3A and other applicable laws, and nothing [ v60 p589 ] in Article 93, as interpreted and applied by the Arbitrator, prevents the Agency from doing so. Indeed, the clear language of Article 93, § 6 ensures this right by permitting the Agency to determine when an employee "has sufficiently recovered" and it requires the employee to pass a "return to duty test" before returning to his normal duties. [*]
Accordingly, I dissent.
File 1: Authority's Decision in 60 FLRA No. 116
File 2: Opinion of Member Pope
Footnote * for 60 FLRA No. 116 - Opinion of Member Pope
When the employee has sufficiently recovered, he/she will be scheduled for return to duty substance testing. Upon passing the return to duty test, the employee's facility manager shall be informed that the employee is no longer removed for medical reasons, and may return to their normal duties. If the employee does not pass the return to duty test, the employee's manager will be informed and the employee offered an opportunity to ent