43:1405(114)NG - - NFFE, National Council of HUD Locals and HUD - - 1992 FLRAdec NG - - v43 p1405
[ v43 p1405 ]
The decision of the Authority follows:
43 FLRA No. 114
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL OF HUD LOCALS
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
DECISION AND ORDER ON NEGOTIABILITY ISSUES
February 6, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of four proposals involving the implementation of the Agency's Employee Assistance Program Handbook.
Proposal 1 would require the Agency to offer employees with substance abuse problems a "firm choice" between treatment and discipline. Proposal 2 would prevent the Agency from taking action against any employee who voluntarily identifies himself as a substance abuser and enrolls in a treatment program. Proposal 3 would preclude the Agency from terminating employees because of substance abuse when such employees enroll in rehabilitation programs. Proposal 4 would require the Agency to recognize that relapse is a symptom of substance abuse, preclude the Agency from entering into any "last chance agreements" with, or from releasing, employees who suffer a relapse, and require the Agency to assist such employees in applying for disability retirement.
For the following reasons, we find that these proposals are nonnegotiable under section 7117(a)(1) of the Statute because they are inconsistent with law and Government-wide regulation.
II. The Proposals
Illness of Substance Abuse: Management recognizes that substance abuse is an illness and, consequently, agrees to offer an employee with a substance abuse problem a "firm choice" between treatment and discipline.
Self-identification: Management agrees to avoid taking action against any employee who voluntarily self-identifies as a substance abuser and enrolls in a bonafide [sic] treatment program.
Rehabilitation Act: Management recognizes that the Rehabilitation Act precludes the termination of employees based on substance abuse when such employees enroll in rehabilitation programs.
Relapse: Management recognizes that relapse is a symptom of substance abuse and will therefore not enter into any "last chance agreements" or release an employee who has a relapse. Rather, management will assist an employee who has failed various treatment programs to apply for disability retirement.
III. Positions of the Parties
A. The Agency
The Agency argues that the proposals are not negotiable under section 7106(a)(2)(A) of the Statute because they interfere with management's right to discipline employees. Specifically, the Agency contends that Proposal 1 would preclude management from disciplining employees who claim that they have a substance abuse problem and are in treatment. Further, the Agency argues that Proposal 1 prohibits discipline whether or not the substance abuse problem is a handicapping condition. The Agency also objects to the proposal's failure to define terms, such as "substance abuse problem" and "treatment." Agency's Statement of Position at 2. The Agency argues that Ruggles, George N. v. Navy, 90 FSMR 5319 (1990) (Ruggles), cited by the Union is not applicable to this proposal.
The Agency contends that Proposal 2 is overbroad because it prevents the Agency from taking any disciplinary action against an employee as long as that employee claims to have a substance abuse problem. Because the proposal requires an employee only to enroll in a treatment program, but not necessarily to participate in the program, the Agency argues that it would be precluded from disciplining an employee who has not rectified a drug abuse problem that produces conduct or performance that has an adverse impact on the efficiency of the Federal service.
Similarly, the Agency argues that Proposal 3 is too broad because it permits employees, whether handicapped or not, to merely enroll in a rehabilitation program in order to become immunized from disciplinary action by the Agency. The Agency maintains that under the Rehabilitation Act of 1973, 29 U.S.C. § 791 (Rehabilitation Act), only "employees with handicapping conditions" are protected. Id. at 3.
The Agency argues that Proposal 4 is nonnegotiable for the same reasons asserted for the other proposals. Specifically, the Agency contends that, because the Agency has no control over the approval of disability retirement applications, Proposal 4 would have the effect of preventing the Agency from ever removing an employee for misconduct or poor performance if the employee suffered a relapse.
The Agency also argues that because the proposals conflict with section 7106(a)(2)(A) of the Statute, they are not consistent with existing law and, therefore, violate section 3.01 of the parties' National Agreement. That provision, entitled "Governing Authorities[,]" states that "the parties are governed by existing and future laws, existing Government[-]wide regulations, and existing and future decisions of outside authorities binding on the Department." Id. at 5.
B. The Union
The Union contends that Proposal 1 is intended to repeat and emphasize the requirements of section 501 of the Rehabilitation Act. Additionally, the Union claims that the proposal is consistent with Merit Systems Protection Board (MSPB) case precedent, which requires that "employees who are handicapped because of drug or alcohol addiction be given a 'firm choice between seeing and cooperating with a ... counselor, or receiving other management initiated corrective action ....'" Union's Response at 4, citing Ruggles.
The Union contends that to the extent the proposals offer any "safe harbor" to an employee from disciplinary action by management, the proposals are limited, under section 3.01 of the parties' agreement, by law, rule and applicable regulations, including the standards established in MSPB and Equal Employment Opportunity Commission (EEOC) case precedent. According to the Union, the shelter from discipline would apply only to those acts by the employee that are directly related to the drug or alcohol addiction. In this regard, the Union cites an MSPB decision holding that, under the Rehabilitation Act, the proscription against discipline of a handicapped person "solely by reason of his handicap" does not extend to discipline imposed because of acts of misconduct that are unrelated to the alleged handicap. Id. at 5.
With respect to Proposal 4, the Union maintains that "last chance agreements" violate both the negotiated grievance procedure of the National Agreement and the employees' "Equal Employment Opportunity rights." Id. at 6. The Union argues that only the Agency or the Union may waive a provision of the parties' collective bargaining agreement. To the extent that a "last chance agreement" provides an employee with continued employment if the employee waives his negotiated grievance procedure rights, the Union claims it violates the employee's right to grieve and constitutes a bypass of the employee's exclusive representative. With regard to its contention that "last chance agreements" impermissibly require that an employee relinquish the right to file a complaint based on discrimination, the Union cites Callicotte v. Carlucci, 698 F. Supp. 944 (1988).
Finally, the Union contends that the requirement in Proposal 4 that the Agency assist employees with disability retirement applications pertains only to providing information. The Union points out that a retirement application must "meet all requisites of law and regulations." Id. at 7.
The Union concedes that the proposals restrict the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute, but contends that they do not constitute excessive interference with that right. Therefore, the Union argues that the proposals are negotiable appropriate arrangements under section 7106(b)(3) of the Statute.
IV. Analysis and Conclusions
A. Proposal 1
Proposal 1 would require the Agency to offer employees with a substance abuse problem a "firm choice" between treatment and discipline. For the following reasons we find that the proposal is inconsistent with Executive Order No. 12564 and Federal Personnel Manual (FPM) Letter 729-19.
Section 5(b) of Executive Order No. 12564 requires agencies to "initiate action to discipline any employee who is found to use illegal drugs," but that requirement does not apply to any employee who "[v]oluntarily identifies himself as a user of illegal drugs," "[o]btains counseling or rehabilitation through an" Employee Assistance Program (EAP), and thereafter refrains from using illegal drugs. See American Federation of Government Employees, Local 1692 and U.S. Department of the Air Force, Mather Air Force Base, California, 40 FLRA 868, 872 (1991). See also National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1140 (1991), petition for review dismissed, Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, No. 91-1493 (D.C. Cir. Jan. 24, 1992) (Department of the Treasury). Under section 5(d) of the Executive Order, agencies are required to "initiate action to remove from the service any employee who is found to use illegal drugs" and who refuses to obtain counseling or rehabilitation through an EAP or who "[d]oes not thereafter refrain from using illegal drugs." See American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203, 1212 (1990) (Member Talkin dissenting as to other matters).
These provisions of Executive Order 12564 are clarified and supplemented by FPM Letter 791-19 as set forth in 54 Fed. Reg. 14024 (April 6, 1989). Section 5.d of the FPM letter sets forth a range of disciplinary actions that agencies must impose on employees who are found to use illegal drugs and who have not voluntarily identified themselves as users of illegal drugs, obtained appropriate counseling and rehabilitation, and refrained from further illegal drug use. Section 5.d(8) of the FPM Letter provides that agencies are required to initiate action to remove an employee from the service "upon a second verified finding of illegal drug use." See American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 420 (1991), petition for review filed sub nom. U.S. Department of Justice, Justice Management Division v. FLRA, No. 91-1582 (D.C. Cir. Nov. 26, 1991) (Department of Justice).
By its terms, Proposal 1 would preclude management from disciplining employees who are found to use illegal drugs where the employees agree to undertake rehabilitation, whether the drug use is discovered through voluntary programs or through some form of testing. Because the proposal does not limit the exemption from discipline to those employees who identify themselves voluntarily, it is inconsistent with section 5(b) of the Executive Order and section 5.d of FPM Letter 792-19. Additionally, to the extent that the proposal would preclude the Agency from disciplining employees who voluntarily admit to using illegal drugs and who enter rehabilitation but do not remain drug free thereafter, it is inconsistent with both section 5(b) of the Executive Order and section 5.d(7) of FPM Letter 792-19. As we interpret Proposal 1, it would also preclude the Agency from disciplining employees who are found for a second time to use illegal drugs. Based on this interpretation, we conclude that the proposal is also inconsistent with section 5(d) of the Executive Order and section 5.d(8) of the FPM Letter. See Department of Justice, 42 FLRA at 420.
The Authority has determined that Executive Order No. 12564 and FPM Letter 729-19 constitute, respectively, law and Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. Department of Justice, 42 FLRA at 421. Although the Union argues that the application of the proposal would be limited by existing MSPB and EEOC case precedent, the cases cited by the Union in support of its claim do not discuss Executive Order No. 12564 or FPM Letter 792-19. As Proposal 1 is inconsistent with both the Executive Order and FPM Letter 792-19, it is nonnegotiable under section 7117(a)(1) of the Statute. Therefore, we need not address the Agency's argument that the proposal excessively interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute or the Union's argument that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute.
B. Proposal 2
Proposal 2 would exempt from discipline any employee who is voluntarily identified as a substance abuser and who enrolls in a bona fide treatment program. However, the proposal does not require the employee to successfully complete the rehabilitation program, or to remain drug free thereafter. Accordingly, we find the proposal nonnegotiable because it is inconsistent with Executive Order No. 12564.
As stated above, section 5(b) of Executive Order No. 12564 requires agencies to "initiate action to discipline any employee who is found to use illegal drugs," but exempts employees who voluntarily identify themselves as illegal drug users, obtain counseling or rehabilitation, and thereafter remain drug free. The Authority has found that proposals that preclude an agency from disciplining employees who voluntarily disclose to management that they use, or have used, illegal drugs, enter rehabilitation, and refrain from using drugs thereafter do not conflict with the Executive Order and the FPM Letter. See Department of the Treasury, 41 FLRA at 1140.
Proposal 2 is distinguishable from proposals that are consistent with the Executive Order because this proposal makes no reference to the additional requirement in section 5(b) that the employee, after obtaining counseling or rehabilitation, refrain from illegal drug use. Rather, as the Agency contends, Proposal 2 would provide blanket protection to an identified illegal drug user so long as the individual merely enrolled in a treatment program. See American Federation of Government Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 42 FLRA 542, 565 (1991) (Member Talkin dissenting as to other matters). As stated above, however, the Executive Order requires that agencies discipline employees who do not refrain from illegal drug use. We conclude, therefore, that Proposal 2 is inconsistent with the Executive Order.
As we stated in connection with Proposal 1, because the proposal is inconsistent with the Executive Order, it is nonnegotiable under section 7117(a)(1) of the Statute and there is no need to address the parties' additional contentions.
C. Proposal 3
Proposal 3 concerns a limitation on the Agency's right to remove an employee based on substance abuse when the employee enrolls in a rehabilitation program. As discussed previously, section 5(d) of the Executive Order requires agencies to "initiate action to remove from the service any employee who is found to use illegal drugs" and refuses to enter counseling or rehabilitation, or subsequently fails to remain drug-free, and section 5.d(8) of the FPM Letter states that "initiating action to remove the employee from Federal service is mandatory upon a second verified finding of illegal drug use." Therefore, the Executive Order and the FPM Letter require termination of an employee for use of illegal drugs in certain circumstances. Department of Justice, 42 FLRA at 420 (1991).
The Rehabilitation Act imposes a duty on Federal agencies to make reasonable accommodations for the limitations of their qualified handicapped employees unless they can show that to do so would impose undue hardship on their operations. See U.S. Department of the Army Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 42 FLRA 1186, 1192 (1991). The Rehabilitation Act, as amended, extends its definition of "individual with handicaps" to an individual who has successfully completed or is participating in a supervised rehabilitation program and is no longer engaging in the use of illegal drugs, or is erroneously regarded as engaging in such use but is not, in fact, engaging in such use. 29 U.S.C. § 706(8)(C)(i) and (ii). However, an "individual with handicaps" does not include "an individual who is currently engaging in the illegal use of drugs, when a covered entity acts on the basis of such use." 29 U.S.C. § 706(8)(C)(i). We find that these provisions of the Rehabilitation Act are consistent with the requirements of the Executive Order and the FPM Letter that are discussed above.
As worded, the proposal would bar the Agency from removing an employee who it finds is using illegal drugs after enrolling in a rehabilitation program. Additionally, the proposal makes no distinction between substance abusers who voluntarily identify themselves and those identified through other than voluntary means, such as random drug testing. Because the proposal insulates from removal employees who the Agency determines are using illegal drugs after they have enrolled in a treatment program, as well as employees who are identified through involuntary means, and because the Rehabilitation Act also does not require such protection, we conclude that the proposal conflicts with section 5(d) of the Executive Order and section 5.d(8) of the FPM Letter.
As with the earlier proposals, because Proposal 3 conflicts with law and Government-wide regulation, it is nonnegotiable and there is no need to consider the additional arguments.
D. Proposal 4
Proposal 4 would prohibit the Agency from entering into "last chance agreements" or discharging "an employee who has failed various treatment programs." Therefore, the proposal precludes the removal of employees who do not remain drug-free and who the Agency determines are using illegal drugs based on a second confirmed test. Instead, the Agency would be required to assist the employee in applying for disability retirement.
Because Proposal 4 concerns management's ability to disc