40:0868(68)NG - - AFGE Local 1692 and Air Force, Mather AFB, CA - - 1991 FLRAdec NG - - v40 p868



[ v40 p868 ]
40:0868(68)NG
The decision of the Authority follows:


40 FLRA No. 68

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1692

(Union)

and

U.S. DEPARTMENT OF THE AIR FORCE

MATHER AIR FORCE BASE, CALIFORNIA

(Agency)

0-NG-1856

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

May 10, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of a proposal exempting from discipline an employee who voluntarily admits to the use of illegal drugs, participates in a rehabilitation program, and thereafter refrains from using drugs. For the following reasons, we find that the proposal is negotiable.

II. Procedural Issue

We conclude that the Agency's Statement of Position was untimely filed. Consequently, we will not consider the Agency's Statement of Position in our decision.

Under section 2424.6 of the Authority's Rules and Regulations, the time limit for filing an agency statement of position in a negotiability case is 30 days after receipt of a union's petition for review. In this case, the Agency states that it received the Union's petition for review on August 1, 1990. Under section 2424.6 of the Authority's Rules and Regulations, therefore, the Agency's Statement of Position was due at the Authority on August 31, 1990.(1) The Statement of Position was filed with the Authority by personal delivery on September 4, 1990. Consequently, the Statement of Position was untimely filed.

III. Proposal

Illegal Drug Use Problems

To complement the effort of the EAP to eliminate the adverse effects of illegal drug use in the workplace and ensure compliance with Executive Order 12564, a voluntary referral procedure is established to encourage illegal drug users to seek counseling and rehabilitation without the risk of disciplinary action. This is referred to as providing the employee "safe harbor." Accordingly, any employee who voluntarily identifies himself or herself as a user of illegal drugs will be provided "safe harbor" and be exempt from disciplinary action for the admitted acts of illegal drug use, including possession incidental to such use, provided the employee:

1. Voluntarily makes such disclosure to a superior official prior to being identified through other means.

2. Obtain[s] counseling and rehabilitation through EAP.

3. Agrees to be tested by the activity during counseling and rehabilitation and during the post-treatment and evaluation phase.

4. Consents, in writing, to the release of all records related to counseling and rehabilitation, including urinalysis test results, to appropriate management and EAP officials.

5. Thereafter refrains from using illegal drugs.

IV. Positions of the Parties

A. Agency

Because the Agency did not respond to the Union's request for an allegation of nonnegotiability and because the Agency's Statement of Position was untimely filed, there are no Agency contentions as to the negotiability of the proposal in the record of this case. See section 2424.3 of the Authority's Rules and Regulations, providing for union appeal of a negotiability issue when an agency fails to respond to a written request by the union for an allegation of nonnegotiability.

B. Union

The Union states that the intent of the proposal is "to recognize the provisions set out in [Federal Personnel Manual] FPM Supplement 792-2 which [provide] that disciplinary actions are not required in cases where employees voluntarily come forward for rehabilitation as illegal drug users." Petition for Review at 2. The Union also states that the proposal "is not intended to apply to any non-drug usage activity which might otherwise provide a basis for discipline." Id.

The Union contends that the proposal is intended to alleviate the adverse effects on employees of management's right to discipline. According to the Union, disciplinary action against an employee when that employee is undergoing treatment and rehabilitation would undermine the objective of the discipline and of the drug-free workplace program because the incentive to maintain rehabilitation is taken away when there is no "safe harbor." Id.

The Union explains that the proposal provides employees with protection "from related misconduct due to the disability" if they conform to the conditions set out in the proposal. Union Response at 11. The Union "concedes" that the proposal interferes with management's right to discipline by limiting management's ability to discipline employees for cause during the rehabilitation process, but contends that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. Id.

The Union states that the proposal would "shield" cooperating employees who are in the process of rehabilitation against disciplinary action, the adverse effects of which would "vary with the seriousness and type of offense." Id. at 12. As to employees who use illegal drugs, the Union claims that, under the Rehabilitation Act of 1973, the Agency must make accommodation for those employees and that a "substantial part of that accommodation" would be providing for "rehabilitation free from the imposition [of discipline] for the drug abuse itself." Id. at 13.

The Union acknowledges that discipline may be warranted in some cases, but contends that the Agency "should provide that employees who voluntarily come forward for assistance in defeating a drug abuse problem should not be disciplined for illicit drug use . . . by joining the program." Id. The Union also indicates that the proposal would not protect employees from "actionable offenses" that are unrelated to illegal drug use. Id.

The Union claims that the Agency is required by law and regulation to implement an EAP. In support of this claim, the Union cites Public Law 91-616 and Public Law 92-255, Section 5 of Executive Order 12564, and Sections 1(d), 5(d), and 7 of FPM Supplement 792-2. According to the Union, these provisions foster the objective of rehabilitating and retaining employees who cooperate in overcoming their problems. The Union also contends that, under these provisions, agencies must refer employees to an EAP and that the EAP must be "rehabilitative and non-punitive in nature." Id. at 15. The Union argues that the "obvious premise" behind these provisions "is that it is fundamentally incompatible for discipline to be imposed for . . . drug abuse while an employee is attempting to rehabilitate himself or herself by attending and abiding by" the EAP. Id. at 16.

The Union contends that the proposal provides the same criteria for a "safe harbor" as those provided by the FPM. The Union argues that those criteria "minimize" the effect of the proposal on Agency operations. Id. at 17. Because referral to an EAP is mandatory, the Union asserts, it must be assumed that discipline will be held in abeyance or not taken at all. The Union concludes that the effect of the proposal is "to enforce what is already a favored program." Id. According to the Union, public policy favors retaining an employee in whom the Agency has a considerable investment in training and rehabilitating employees so as to reduce the use of illegal drugs.

V. Analysis and Conclusions

By its terms, the proposal would exempt from discipline for use of illegal drugs, or possession incidental to that use, any employee who: (1) voluntarily admits to using such drugs; (2) obtains counseling or rehabilitation through an EAP; (3) agrees to be tested during rehabilitation and the post-treatment and evaluation phase; (4) gives written consent to the release of all records concerning rehabilitation to appropriate officials; and (5) thereafter refrains from using illegal drugs.

The plain wording of the proposal applies only to drug use and possession incidental to that use. Certain statements of the Union, however, appear to interpret the proposal as immunizing employees from discipline not only for the use and possession of illegal drugs, but also for conduct related to illegal drug use. Because the statements of the Union are inconsistent with the plain wording of the proposal, we will interpret the proposal in accordance with that plain wording. We will not adopt an explanation of a proposal that is inconsistent with the terms of that proposal. See National Association of Government Employees, Local R14-5 and Pueblo Depot Activity, Pueblo, Colorado, 31 FLRA 62, 67 (1988). Consequently, as we interpret the proposal, it would not preclude discipline against employees for conduct, whether related or unrelated to the use or possession of illegal drugs. Rather, the proposal would preclude discipline only for the use or possession of illegal drugs. Interpreted in this manner, we find that the proposal is negotiable.

Under section 5(b) of Executive Order 12564, agencies are required to "initiate action to discipline any employee who is found to use illegal drugs." The requirement for disciplinary action against employees who use drugs does not apply, however, to employees who "voluntarily identify themselves as users of illegal drugs," "obtain counseling or rehabilitation through an" EAP, and thereafter refrain from using illegal drugs. Section 5(b) of Executive Order 12564. See Section 5(d) of Federal Personnel Manual (FPM) Letter 792-19, 54 Fed. Reg. 14024, 14028 (April 6, 1989). See also International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1523 (1991) (Bureau of Reclamation). Consequently, consistent with the Executive Order and the FPM Letter, agencies can decide not to initiate discipline against employees who voluntarily disclose to management that they use, or have used, illegal drugs. American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203, 1212-13 (1990) (Fort Leavenworth) (Member Talkin dissenting as to other matters). Therefore, by precluding the Agency from disciplining employees who voluntarily disclose that they use, or have used, illegal drugs, enter rehabilitation, and refrain from using drugs thereafter, the proposal does not violate the Executive Order or the FPM Letter.

The decision as to whether to take disciplinary action against an employee, however, constitutes an exercise of management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3, 19-20 (1987). The issue in this case, therefore, is whether the limitations imposed by the proposal on management's right to discipline render the proposal nonnegotiable.

Proposals that preclude management from taking disciplinary action against employees for a particular offense directly interfere with management's right to discipline under section 7106(a)(2)(A). See International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269, 274-76 (1988) (Panama Canal Commission). As the Union acknowledges, by exempting from discipline employees who voluntarily disclose to management that they use, or have used, illegal drugs, the proposal directly interferes with management's right under section 7106(a)(2)(A). We conclude, therefore, that unless the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, the proposal is nonnegotiable.

We turn, then, to the Union's claim that the proposal is an "appropriate arrangement." To determine whether a proposal constitutes an appropriate arrangement, we must determine whether the proposal is: (1) intended to be an arrangement for employees adversely affected by the exercise of a management right, and (2) appropriate because it does not excessively interfere with the exercise of management's rights. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).

As to whether the proposal is an "arrangement" for employees adversely affected by the exercise of a management right, according to the Union, the proposal is intended to "shield" from the adverse effects of disciplinary action those employees who voluntarily cooperate with the Agency's drug testing program and who undertake rehabilitation. Union Response at 12. The Union explains that removing the threat of discipline benefits employees by eliminating a disincentive for employees to admit their drug usage and to participate in an EAP. Id. at 18. We find, therefore, that the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3). See Fort Leavenworth, Kansas, 38 FLRA at 1215.

In determining whether the proposal is an "appropriate" arrangement, we weigh the effect of the proposal on management's right to discipline against the benefits to employees that result from the proposal in order to determine whether the proposal excessively interferes with the right to discipline. See Kansas Army National Guard, 21 FLRA at 31-33. We conclude that the proposal does not excessively interfere with management's rights.

The proposal applies only to employees who voluntarily admit that they use, or have used, illegal drugs and thus would not preclude discipline against employees who are found through the drug testing program to be using illegal drugs. By its plain wording, the proposal covers only the illegal use of drugs or possession incidental to that use and does not immunize employees from discipline on any other ground, including conduct related to or resulting from the use of illegal drugs or actions unrelated to the use of illegal drugs. Compare Panama Canal Commission, 32 FLRA at 275-76 (proposal immunizing employees from discipline for acts or omissions resulting from illegal drug use if they enroll in a drug rehabilitation program held nonnegotiable). Moreover, the proposal does not preclude disciplinary action against the employee if the employee is subsequently found to be using illegal drugs. The burden imposed by the proposal on management's right to discipline is therefore limited.

On the other hand, by exempting employees from discipline, the proposal affords employees a benefit by providing them with a significant incentive voluntarily to disclose to management that they use, or have used, illegal drugs and to enter counseling and rehabilitation. In addition, as the Union indicates, Federal personnel policy encourages the suspension of disciplinary action to permit the employee to complete rehabilitation and return to a satisfactory performance level. See, for example, FPM Supplement 792-2, section 6-9. On balance, therefore, we find that the benefit to employees under the proposal of being exempt from discipline if they voluntarily disclose that they use illegal drugs, enter rehabilitation, and refrain from using drugs thereafter outweighs the burden imposed by the proposal on management's right to discipline. Consequently, we find that the proposal does not excessively interfere with management's right to discipline employees and conclude that the proposal is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

Accordingly, we conclude that the proposal is negotiable.

VI. Order

The Agency shall upon request, or as otherwise agreed to by the parties, bargain on the proposal.(2)




FOOTNOTES:
(If blank, the decisio