31:0172(21)AR - Transportation, FAA and National Association of Air Traffic Specialists -- 1988 FLRAdec AR



[ v31 p172 ]
31:0172(21)AR
The decision of the Authority follows:


31 FLRA NO. 21

FEDERAL AVIATION ADMINISTRATION
U.S. DEPARTMENT OF TRANSPORTATION

               Agency

      and

NATIONAL ASSOCIATION OF AIR
TRAFFIC SPECIALISTS

              Union

                                             Case No. O-AR-1265

                        DECISION

     I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Frederick U. Reel. The issue before the
Arbitrator was whether "the Agency's limited confidentiality and
related procedures conflict with the confidentiality requirements
set forth in the Office of Personnel Management's Federal
Personnel Manual Supplement 792-2." Award at 1-2. The Arbitrator
concluded that the Agency's policy, which required employees to
consent to limited disclosure as a condition for self-referral to
the Agency's Employee Assistance Program (EAP), violated the
requirement for the voluntary consent contained in the
regulations of the Office of Personnel Management (OPM). The
Arbitrator ordered the Agency to "abandon the 'limited
confidentiality' policy with respect to self-referrals, and to
permit such employees to utilize the EAP without having to waive
the confidentiality provided for in the (parties' collective
bargaining) Agreement." Award at 11-12.

     The exceptions were filed by the Agency under section
7122(a) of the Federal Service Labor - Management Relations
Statute (the Statute) and part 2425 of the Authority's Rules and
Regulations. 1/ The Union filed an opposition to the 
Agency's exceptions. 2/  The U.S. Department of Health and Human
Services (HHS) filed a brief as an amicus curiae in support of
the Agency's exceptions. The Agency contends that the
Arbitrator's award is contrary to law, rule and regulation. For
the reasons discussed below, we conclude that the Arbitrator's
award conflicts with Government-wide regulations. Accordingly,
the award is set aside.

     II. Background

     This case concerns a change in the Agency's policy for the
confidential treatment of records for employees who refer
themselves to the EAP. 3/ Prior to August 1985, the Agency's
policy provided confidential treatment for the records of
employees who refer themselves to a drug program through the EAP.
That policy was revised in August 1985 to require self-referred
employees to sign a waiver permitting disclosure of their drug
problem to the Agency's Regional Flight Surgeon and the Facility
Manager. An employee who does not sign the waiver is not referred
to treatment and the Agency is not notified of his or her contact
with the EAP. 

     The Union filed a grievance concerning the Agency's revised
policy. The grievance alleged that the revised policy violated
Article 73, section 5 of the parties' collective bargaining
agreement. The agreement provides that "(c)onfidentiality of
records shall be maintained in accordance with governing (OPM)
regulations by both parties." Award at 1. The grievance was
submitted to arbitration.

     III. Arbitrator's Award

     The parties stipulated that the issue for resolution was
whether "the Agency's limited confidentiality and related
procedures conflict with the confidentiality disclosure
requirements set forth in the (OPM's) Federal Personnel Manual
(FPM) Supplement 792-2." Award at 1-2. The Arbitrator further
defined the issue as "whether the Agency, by conditioning access
to its (EAP) in certain self-referral cases by requiring
employees (with a substance abuse problem who are involved in
positions directly related to air safety) to waive
confidentiality, has violated the OPM regulation, enshrined in
the agreement, which permits such a waiver only when it is
voluntary and not coerced." Award at 9. See also Award at 3-4,
6.

     The Arbitrator found that the Agency's revised policy
violated the agreement because it conflicted with the OPM
requirement in FPM Supplement 792-2 that waivers must be
voluntary. He found that the waiver was not voluntary if an
employee was precluded from consulting with the EAP without
signing such a waiver. The Arbitrator noted that this dispute
involved the interpretation and application of an OPM regulation.
The Agency introduced into evidence a letter from an OPM employee
which the Agency viewed as approving its policy and procedures.
The Arbitrator concluded that the OPM letter was not dispositive
because it did not refer to the issue of the voluntary nature
which he viewed as the "heart of the present controversy." Award
at 11. The Arbitrator ordered the Agency "to abandon the 'limited
confidentiality' policy with respect to self-referrals, and to
permit such employees to utilize the EAP without having to waive
the confidentiality provided for in the Agreement." Award at
11-12.

     IV. Positions of the Parties

     A. Agency's Exceptions

     The Agency contends that the Arbitrator's award is contrary
to law, rule or regulation on two grounds. First, the
Agency argues that the Arbitrator's findings regarding its
limited confidentiality policy are contrary to FPM Supplement
792-2. The Agency asserts that its policy and procedures are
clearly supported by the explicit language of the regulations.
The Agency argues that the OPM regulations provide for the
disclosure of certain patient information when there is a "bona
fide need for such information to evaluate hazards which the
employment may pose to the patient or others, or where such
information is otherwise directly relevant to the employment
situation." Exceptions at 3. See FPM Supplement 792-2, Subchapter
S4; Appendix A, Sections 2.18, 2.38(c).

     The Agency argues that OPM's regulations, in situations in
which employee consent is necessary, only require that: (1) the
employee realizes what he or she is agreeing to and releases the
information freely; (2)  the information is relevant and
necessary; and (3) the scope of disclosure is limited. Exceptions
at 4. The Agency asserts that its limited confidentiality policy
and procedures meet these requirements for four reasons: (1) the
employees are given a free and unfettered choice in selecting
either a referral through the EAP or in selecting treatment in
the assistance program of their own choosing, Exceptions at 5-6;
(2)  the employees involved in this dispute are air traffic
control specialists who perform valid aviation safety-related
duties, Exceptions at 5; (3) the Agency's primary and overriding
interest is in the preservation of air safety, Exceptions at 5;
(4) the sole purpose of the disclosure is to ensure that the
employee is not performing safety-related duties until the Flight
Surgeon can certify that the employee is capable of safely
performing his or her duties, Exceptions at 5-6; and (5) the
information is disclosed only to the Flight Surgeon and the
Facility Manager for these limited purposes, Exceptions at 6.

     The Agency also argues that its limited confidentiality
policy is supported by OPM's summary of its regulations. The
summary states that the regulations "attempt to strike a balance
between the recognized need for privacy and anonymity on the part
of those who obtain treatment and other values that sometimes
conflict with the achievement of this goal." Exceptions at 5. For
this reason the Agency asserts that confidentiality is not
absolute and must be balanced against other equally valid
considerations, in this case, the preservation of air safety.
Exceptions at 5.

     Therefore, the Agency contends that the Arbitrator's finding
that its policy and procedure concerning limited confidentiality
is contrary to FPM Supplement 792-2. 

     As its second ground for alleging that the award is
deficient, the Agency argues that the Arbitrator erred in
concluding that the Agency's requirement that self-referred
employees sign a waiver prior to receiving a consultation through
the EAP was coercive. The Agency asserts that requiring employees
to sign waivers does not prevent those employees from receiving
treatment because they remain free to seek treatment through the
assistance program of their own choosing; merely because an
employee is faced with a choice which he or she finds unpleasant
does not make the employee's decision coerced. Moreover, the
Agency argues that requiring a signed waiver is a logical and
necessary step to preserve the integrity of the Agency's air
safety operation. Exceptions at 9.

     B. Union's Opposition

     In opposition, the Union makes three contentions concerning
the merits of the dispute: (1) the law requires strict
confidentiality absent the written consent of the patient; (2) 
the limited exceptions to this requirement of strict
confidentiality contained in FPM Supplement 792-2 do not include
aviation safety-related duties; and (3) the Arbitrator's finding
that the waiver requirement is coercive is supported by the facts
of the case.

     C. Amicus Curiae

     HHS contends that the Agency's policy is permitted under
Federal statute and the HHS regulations, 42 C.F.R. 2.1 et seq.,
upon which FPM Supplement 792-2 is based. Amicus Brief at 2.  HHS
asserts that its Office of General Counsel has interpreted the
HHS regulations as permitting a requirement that an alcohol or
drug abuse patient consent to the disclosure of records as a
condition of admission to treatment. HHS argues that under these
interpretations, the Agency's requirement in this case that a
waiver be signed as a condition precedent to a consultation with
the EAP does not render that consent involuntary. Amicus Brief at
4-9. HHS maintains that the demand for air safety provides a more
than adequate basis for finding the Agency's policy reasonable
under the HHS regulations. Amicus Brief at 12-13.

     HHS also argues that the Agency's policy of limited
confidentiality is authorized under 42 C.F.R. 2.38, which
provides that a "program may make disclosures under this section
to public or private agencies (sic), employment services, or
employers." Amicus Brief at 9. Therefore, since the
Agency is the employer of the patients who use its EAP program
and the Agency's policy otherwise comports with the requirements
of that section, section 2.38 authorizes disclosures to the
Agency by the EAP. Amicus Brief at 9-10.

     V. Analysis and Conclusions

     We find that the Arbitrator's award is contrary to
Government-wide regulations, specifically, FPM Supplement 792-2.
We reach this conclusion for two separate reasons: (1) OPM and
HHS have interpreted the regulations applicable to this dispute
to recognize that disclosure may be appropriate in certain
limited circumstances; and (2)  the record does not demonstrate
that the requirement of a signed consent form as a condition
precedent to EAP consultation means that signing the consent form
was not voluntary. We will discuss these reasons separately
below.

     A. FPM Regulations

     The Arbitrator found that the Agency's policy required
employees to sign a waiver authorizing disclosure of their
referral to a drug treatment program to the Flight Surgeon and
the Facility Manager. The Arbitrator concluded that because the
waiver was a condition precedent to referral, the Agency's policy
violated FPM Supplement 792-2. We find that the Agency's policy
is consistent with FPM Supplement 792-2.

     As noted, OPM and HHS have interpreted the regulations
applicable to this dispute to recognize that disclosure may be
appropriate in certain limited circumstances. We agree with their
interpretations and find that such circumstances are present
here. The Arbitrator failed to recognize that disclosure of
certain information in limited circumstances is permitted by the
express terms of FPM Supplement 792-2.

     Section 2.31 of Appendix A to FPM Supplement 792-2
explicitly provides that an employee may consent to the
disclosure of patient records. Subsection (c) of that section
delineates the types of consent that are ineffective to authorize
disclosure. Subsection (c) does not indicate that requiring the
execution of a consent form as a condition for treatment renders
the consent form ineffective to authorize disclosure.

     In circumstances in which an employee consents to
disclosure, the disclosure of patient records should be limited
to the information necessary in light of the need or 
purpose for the disclosure. FPM Supplement 792-2, Appendix A,
section 2.18(a). In addition, section 2.38 allows the disclosure
of more specific information where either (1) there is a bona
fide need for such information to evaluate hazards which the
employment may pose to the patient or to others, or (2)  where
such information is directly relevant to the employment
situation.

     We find that the preservation of air safety falls within the
parameters of this regulation. The Agency has a bona fide need to
know if an air traffic specialist is undergoing treatment for
drug abuse since drug abuse could pose a significant hazard to
the traveling public. Information concerning a potentially
hazardous situation due to an air traffic specialist's drug abuse
is obviously directly related to the employment situation.
Executive Order 12564, entitled "Drug Free Workplace,"
specifically recognizes that the use of illegal drugs, on or off
duty, by Federal employees can pose a serious health and safety
threat to members of the public and other Federal employees. See
51 Fed. Reg. 32889 (Sept. 17, 1986). For these reasons, and
consistent with Executive Order 12564, we find that the public
interest in the preservation of air safety falls within the
parameters of FPM Supplement 792-2. An interpretation of FPM
Supplement 792-2 that would not include air safety as an area in
which there is a bona fide need for drug-abuse related patient
information would unreasonably limit the areas to which the
regulation would otherwise apply to allow disclosure. We,
therefore, conclude that the Arbitrator's conclusion that
disclosure was not allowed under applicable regulations is
contrary to FPM Supplement 792-2.

     B. Voluntariness of Consent

     The Arbitrator found that air traffic specialists who
referred themselves to the Agency's EAP were required to sign a
waiver authorizing disclosure of their referral to treatment for
drug abuse. He found that the Agency's policy precluded those
employees from consulting with the EAP unless they signed the
waiver. Therefore, he concluded that the waiver was not
voluntary, but was coerced. Award at 9-11. We disagree. The fact
that air traffic specialists seeking referral to treatment are
required to sign a waiver authorizing disclosure of their
referral by the EAP to the Flight Surgeon and the Facility
Manager does not support a conclusion that the waiver was not
voluntary.

     The record in this dispute does not indicate that the EAP
consultation is the only means by which employees may 
obtain consultations for drug abuse. Neither the parties'
agreement, applicable regulations, nor the Agency's revised
policy precludes employees from seeking privately funded
consultations with a treatment program of their own choosing. See
Exceptions at 2-3. The Union does not dispute this. Moreover, the
record indicates that employees are responsible for the costs of
the drug treatment program whether they receive treatment through
the program recommended by the EAP or through the program of
their own choosing. See Agency Post - Hearing Brief at 12. Thus,
air traffic specialists seeking treatment for drug abuse have
other options available to them and participation in a drug abuse
program through referral by the EAP is purely voluntary.

     The availability of alternatives, or the lack of evidence
that there are no  reasonable alternatives, without more, does
not support a finding that the consent was not voluntary. Whether
consent is given voluntarily and without coercion is determined
from the totality of the circumstances. Schneckloth v.
Bustamonte, 412 U.S. 2041, 2047-48 (1973). It is well settled
that the party alleging coercion must have had no  other means of
immediate relief from the actual or threatened coercion than by
compliance with the demand. See Employers Insurance of Wausau v.
United States, 764 F.2d 1572, 1576 (Fed. Cir. 1985). Moreover,
the law permits hard choices as long as the choice between the
two alternatives, however unpleasant, is understood by the
employee and freely made. Covington v. Department of Health and
Human Services, 750 F.2d 937, 943 (Fed. Cir. 1984).

     These conclusions by the courts are consistent with the
legal opinions of HHS that disclosure may be required as a
condition to treatment under its regulations. Amicus Brief at
4-9. HHS cites to numerous legal opinions of its Office of
General Counsel interpreting 42 C.F.R. 2.1 et seq., which support
this position. For example, as a condition of treatment,
disclosure has been required to a third-party payer, to the
central registry for alcoholism patients, to fellow patients, to
State and local officials, to public health officials, to Boards
of Correction, to law enforcement officials, to the Virginia
Commonwealth Attorney, and to the family. In these opinions, HHS
has specifically determined that under its regulations, written
consent required to obtain admission to treatment was within the
meaning of consent "given freely, voluntarily, and without
coercion" because the patient had the option of entering into
treatment in that program or seeking treatment elsewhere. Amicus
Brief at 4-9. 

     In terms of this case, as noted, it is undisputed by the
parties that the EAP consultation is not the only means by which
an employee may obtain consultations for drug abuse. Further,
consistent with the legal opinions of HHS, the consent required
of air traffic speci