47:0836(79)NG - - AFGE, Council of Prison Locals and Justice, Bureau of Prisons - - 1993 FLRAdec NG - - v47 p836



[ v47 p836 ]
47:0836(79)NG
The decision of the Authority follows:


47 FLRA No. 79

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL OF PRISON LOCALS

(Union)

and

U.S. DEPARTMENT OF JUSTICE

BUREAU OF PRISONS

(Agency)

0-NG-2064

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 9, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

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), and concerns the negotiability of three provisions of a collective bargaining agreement that were disapproved by the Agency head under section 7114(c) of the Statute.(2)

Provision 1, which incorporates the Agency's Performance Appraisal Program Statement, is nonnegotiable.

Provision 2 requires that, as they are applied to an employee, performance standards and elements will be fair and based upon objective criteria and job-relatedness. We find that Provision 2 is negotiable.

Provision 3 provides that the Agency will normally allow employees who have accepted confidential assistance under the Employee Assistance Program a reasonable opportunity to improve work performance to an acceptable level before they are subjected to disciplinary or adverse action. Provision 3 is inconsistent with law and Government-wide regulation and, thus, is nonnegotiable.

II. Preliminary Matter

By Order dated August 31, 1992, the Authority granted the Agency permission to file a supplemental statement of position addressing whether the disputed provisions are appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. The Order also granted the Union the opportunity to respond to the Agency's supplemental statement. Pursuant to our Order, the Agency filed a supplemental statement and the Union filed a response. In its response, the Union argues that the Agency's supplemental statement "violates the Authority's Order" because it raises additional arguments beyond merely addressing the issue of appropriate arrangements. Response at 1. The Union requests that the Authority "disregard" the Agency's attempt to argue "matters outside the scope of the Authority's Order granting the [A]gency leave to submit arguments only on appropriate arrangements." Id. at 5.

The Authority will not consider a supplemental submission by a party unless such submission is requested by the Authority or unless, upon a party's written request, the Authority in its discretion grants permission to file the submission. See 5 C.F.R. § 2424.8. The Agency requested, and the Authority granted, permission for the Agency to file a supplemental statement addressing whether the provisions constitute appropriate arrangements. The Authority granted the Agency's request because the Union raised the issue of appropriate arrangements for the first time in its response.

In its supplemental statement, the Agency acknowledged that the Union does not contend that Provisions 1 or 2 are appropriate arrangements. Nevertheless, the Agency raised arguments concerning the negotiability of Provisions 1 and 2 that were unrelated to the issue of appropriate arrangements. As the Authority's Order did not grant the Agency permission to address issues other than appropriate arrangements, we find that the Agency's additional arguments on Provisions 1 and 2 were unsolicited. Accordingly, we will not consider the portions of the Agency's supplemental statement addressing those arguments. See American Federation of Government Employees, AFL-CIO, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 42 FLRA 599, 603 (1991) (the Authority did not consider the agency's unsolicited supplemental submission). Compare American Federation of Government Employees, Local 868 and U.S. Department of the Interior, Chattanooga and Chickamauga National Military Park, Fort Oglethorpe, Georgia, 45 FLRA 224, 225 (1992) (the Authority considered the agency's supplemental statement addressing only specific appropriate arrangements arguments raised by the union for the first time in the union's response).

III. Provision 1

ARTICLE 14 - EMPLOYEE PERFORMANCE AND RATINGS

Section a. The Performance Appraisal Program Statement is herein incorporated as part of this Agreement. These procedures will not be changed, to the extent that they are negotiable, for the life of this Agreement except in writing and in accordance with Article 37.

(Only the underlined portion is in dispute.)

A. Positions of the Parties

1. Agency

The Agency argues that the parties cannot negotiate the incorporation of the Agency's entire regulation entitled Performance Appraisal Program Statement (Program Statement) because certain portions of the regulation reflect the exercise of management rights and certain other portions are inconsistent with Government-wide regulations. The Agency objects only to the first sentence of Provision 1 and argues that by attempting to incorporate the entire regulation into the parties' collective bargaining agreement, the first sentence of Provision 1 would unlawfully "fix[] the terms of th[e] [entire] Program Statement for the duration of the contract[,]" thereby precluding the Agency "from exercising, in connection with matters covered by the [P]rogram [S]tatement, any of the reserved management rights reflected in that [S]tatement during the lifetime of the agreement." Statement of Position at 3. In this regard, the Agency asserts that it is well established that unions may not "bargain over the inclusion of agency regulations, involving the exercise of management rights, into a collective bargaining agreement . . . [because] [i]ncorporating these agency regulatory restrictions which fall into this category into the collective bargaining agreement would require '. . . management to comply with them during the period of the collective bargaining agreement regardless of whether the regulation is revised or rescinded.'" Id. at 3-4 (quoting National Treasury Employees Union, Chapter 213 and 228 and United States Department of Energy, Washington, D.C., 32 FLRA 578, 586-87 (1988) (Department of Energy)).

The Agency also argues that because Provision 1 seeks to incorporate the entire Program Statement, "each section [of the Program Statement] must be treated as a [U]nion proposal." Id. at 5. Examining the language of its Program Statement, the Agency contends that "certain sections of the 'Program Statement' . . . are inconsistent with [G]overnment-wide regulations[,]" such as 5 C.F.R. §§ 293.404(a)(1)(i), 430.202(c), 430.203, and 430.205(d) and, therefore, are nonnegotiable. Id. at 4. The Agency further contends that certain sections of the Program Statement directly and excessively interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

Finally, the Agency argues that it is "irrelevant that an identical provision may have been included in a previous agreement between the parties." Id. at 6.

2. Union

The Union contends that Provision 1 is intended to incorporate the Agency's Program Statement into the parties' agreement and "fix only those portions which would be negotiable." Response at 4. According to the Union, Provision 1 was carried over from the parties' previous agreement and "does not represent a negotiation of the employer's [S]tatement, nor does it intend to prevent the exercise of any management right." Petition at 2. The Union further asserts that the provision "does not represent a negotiation and a fixing for the term of the agreement of the employer's reserved rights . . . ." Response at 9. In this regard, the Union maintains that the first sentence of the provision "is specifically delimited by the second sentence" of the provision to negotiable matters contained in the Program Statement. Id. at 3. According to the Union, the second sentence "necessarily excludes [from the scope of the first sentence of Provision 1] all matters [which] would otherwise be nonnegotiable[,]" including "any other matter inconsistent with law, rule, or regulations." Id. at 3, 4.

The Union notes the Agency's argument that sections of the Program Statement are inconsistent with Government-wide regulations. However, the Union contends that the Agency's declaration that its own regulation is unlawful provides no basis for finding the provision nonnegotiable. The Union asserts that "[i]f the underlying [A]gency regulation is not proper, nothing in the pro[vision] prevents the employer from amending it." Response at 6.

B. Analysis and Conclusions

By its terms, Provision 1 would incorporate the entire Program Statement into the parties' agreement. The Agency argues, without dispute, that portions of the Program Statement are inconsistent with applicable Government-wide regulations and that other portions of the Statement directly interfere with the exercise of various management rights under section 7106 of the Statute.

It is clear that provisions that conflict with applicable Government-wide regulations are nonnegotiable under section 7117 of the Statute. Accordingly, Provision 1 would result, in part, in inclusion in the parties' agreement of provisions that could not be included directly through bargaining. It also is clear that provisions which directly interfere with the exercise of a management right under section 7106 of the Statute are, in some situations, nonnegotiable. Accordingly, permitting the Union to incorporate into the parties' agreement such portions of the Program Statement also would result in the Union accomplishing indirectly that which it could not do directly.

We find no basis on which to conclude that a collective bargaining agreement may, under the Statute, include provisions which impermissibly interfere with management's rights or are inconsistent with Government-wide regulations that were promulgated before the agreement. The fact that such provisions are nonnegotiable under section 7117 of the Statute constitutes strong evidence, in our view, that such provisions have no place in agreements. Moreover, contrary to our dissenting colleague, we do not find that the second sentence of Provision 1 limits the applicability of the first sentence so as to render the provision negotiable. In this regard, the second sentence, to which the Agency does not object, permits the Agency to change portions of the Program Statement which are nonnegotiable. The second sentence does not, however, provide that, under the first sentence, only those portions of the Statement which are negotiable will be incorporated in the agreement. As such, the fact that the Agency could change certain portions of the Program Statement is irrelevant, in our view, for purposes of determining the effect of incorporation of the entire Statement in the agreement.

We conclude that the Union may not through incorporation include in its agreement matters which could not be included directly through collective bargaining. Consequently, as it is uncontroverted that, in part, the Program Statement is nonnegotiable as inconsistent with Government-wide regulations and in conflict with management's rights under section 7106 of the Statute, we find that Provision 1, by requiring the incorporation of the entire Statement in the parties' agreement, is nonnegotiable.

IV. Provision 2

ARTICLE 14 - EMPLOYEE PERFORMANCE AND RATINGS

Section b. The Federal Bureau of Prison's performance evaluation program as applied to bargaining unit employees is intended to increase the efficiency of operations, foster good employee morale, strengthen employee-management relationships and evaluate work performance based upon established critical and noncritical elements and performance standards. These standards and elements will be developed and communicated to each employee, and as they are applied to an employee, will be fair and based upon objective criteria and job-relatedness. In the event that employees do not understand portions of their performance requirements, it is the employees' responsibility to bring those specific areas to the attention of their supervisors.

(Only the underlined portion is in dispute.)

A. Positions of the Parties

1. Agency

The Agency interprets Provision 2 as "requir[ing] that performance elements and standards be 'fair,' 'based upon objective criteria' and demonstrate 'job relatedness.'" Statement of Position at 10 (emphasis omitted). The Agency argues that by contractually requiring that performance elements and standards be fair, objective, and job-related, the provision places "substantive limitations on management's authority to determine the content of performance standards" and, therefore, conflicts with management's rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute. Id. at 11 (citing National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964 (1991) (Provision 3) (Department of Agriculture)).

Further, the Agency contends that Provision 2 is inconsistent with law because, in the Agency's view, "the provision would be more restrictive than" the portions of 5 U.S.C. § 4302(b)(1) and Federal Personnel Manual (FPM) Chapter 430, Subchapter 1, 1-1(c) relied on by the Union. Id.

2. Union

The Union contends that Provision 2 requires that the performance standards, "developed unilaterally by management, will be applied in a fair way, based on statutory and regulatory requirements." Petition at 2. The Union asserts that Provision 2 "involves the application of the critical elements to employees and not [] their promulgation" and argues that it is "well settled that a proposal that involves itself in the formulation of critical elements is outside the duty to bargain, while a proposal that deals only with the application of its criteria to employees is bargainable." Response at 10, 11 (emphasis in original) (citing United Power Trades Organization and Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145 (1992) (Department of the Army)). The Union states that Provision 2 is also a "reiteration of the intent of" 5 U.S.C. § 4302(b)(1) and "intends to repeat the requirement for objective standards" found in the Federal Personnel Manual (FPM), Chapter 430, Subchapter 1, 1-1(c). Id. at 11, 12. The Union notes that by stating that standards and elements will "be applied fairly and based upon objective criteria[,]" the provision "requires that the elements be applied consistent with statutory intent." Id. at 12-13.

B. Analysis and Conclusions

For the following reasons, we find that Provision 2 is negotiable.

Management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute encompass the authority to identify critical elements of performance and to establish performance standards. See, for example, Department of the Army, 44 FLRA at 1153-54. Proposals that restrict an agency's authority to determine the content of performance standards and critical elements directly interfere with management's rights to direct employees and to assign work. See, for example, Department of Agriculture, 42 FLRA at 974-77; National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346 (1991) (Provision 2).

On the other hand, proposals governing only the application of performance standards and critical elements do not conflict with management's rights to direct employees and to assign work. See, for example, Department of the Army, 44 FLRA at 1153-54; National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834 (1990) (Provision 2) (Department of the Navy). Accordingly, the task in deciding the negotiability of Provision 2 "'is primarily one of determining, based on the record, whether [it] concern[s] substantive matters, such as the content of performance standards and critical elements, or whether [it] concern[s] the application of those standards and elements and other nonsubstantive matters such as procedures.'" Department of the Army, 44 FLRA at 1154 (quoting Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 387 (1987), aff'd as to other matters mem., No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam).

We find, based on the wording of the provision and the Union's explanation, that Provision 2 concerns the application of performance standards and elements. The plain wording of Provision 2 provides that performance "standards and elements will be developed and communicated to each employee, and as they are applied to an employee, will be fair and based upon objective criteria and job-relatedness." (Emphasis added.) The Agency disputes only the terms "fair," "based on objective criteria," and "job-relatedness." The Union specifically states that Provision 2 "involves the application of the critical elements to employees and not [] their promulgation" and requires that the performance standards, "developed unilaterally by management, will be applied in a fair way, based on statutory and regulatory requirements." Response at 10; Petition at 2. The Union's statements are consistent with the wording of the provision.

We note the Union's statements that Provision 2 is a "reiteration of the intent of" 5 U.S.C. § 4302(b)(1) and "intends to repeat the requirement for objective standards" found in the Federal Personnel Manual (FPM), Chapter 430, Subchapter 1(c). Response at 11, 12. We conclude that these statements do not establish that the Union intends Provision 2 to restrict the content of performance standards, particularly in light of the plain wording of the provision and the Union's explicit acknowledgment that the performance standards and elements are developed unilaterally by management and that the provision involves the application of the performance standards and elements to employees and not their promulgation. Moreover, we find that any reference by the Union to the law and regulation governing the content of performance standards must be read in the context of the Union's statement that the provision "requires that the elements be applied consistent with statutory intent." Response at 12-13 (emphasis added). When read in this context, we find nothing in the Union's submissions indicating that Provision 2 is intended to impose a substantive limitation on management's right to establish performance standards and elements.

In sum, we interpret Provision 2 as pertaining to the application of performance standards and elements rather than the content of those standards and elements. See Department of the Army, 44 FLRA at 1154-55 (despite the union's statement that the proposal was a description of the performance standards, the plain wording of the proposal and the union's statement that nothing in the proposal prescribed the content of the standards showed that the proposal pertained to the application of the performance standards rather than their content). Compare Department of Agriculture, 42 FLRA at 974-75 (notwithstanding the union's statement acknowledging the agency's right to determine the content of performance standards, the plain wording of the provision specified that performance standards were to be realistic, objective, and consistent and, therefore, the provision placed a substantive limit on management's authority to determine the content of performance standards). Because Provision 2 concerns the application of performance standards rather than the content of the standards, we find, consistent with Department of the Army and Department of the Navy, that Provision 2 does not directly interfere with management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute.

In view of our finding that Provision 2 addresses the application of the performance standards and not their content, we reject the Agency's argument that the provision is nonnegotiable as contrary to 5 U.S.C. § 4302(b)(1) and FPM Chapter 430, Subchapter 1, 1-1(c). Those provisions of law and regulation govern only the content of performance standards and elements. See generally Department of the Army, 44 FLRA at 1158.

Accordingly, Provision 2 is negotiable.

V. Provision 3

ARTICLE 34 - EMPLOYEE ASSISTANCE PROGRAM

Section b. It is understood that the presence of a treatable disorder and willingness to accept counseling does not prevent the Employer, except as provided by law, rule, or regulation, from taking appropriate administrative action on misconduct unrelated to the disorder or on misconduct which is influenced by the disorder. It is the intent of the parties to provide an opportunity for employees to resolve their personal problems.

The Employer will normally allow employees who have accepted confidential assistance under the Employee Assistance Program a reasonable opportunity to improve work performance to an acceptable level before being subjected to disciplinary or adverse action.

(Only the underlined portion is in dispute.)(3)

A. Positions of the Parties

1. Agency

The Agency argues that Provision 3 is inconsistent with Executive Order No. 12564 and FPM Letter 792-19 (December 27, 1989) (to be incorporated in FPM Supp. 792-2). The Agency notes that under the Executive Order and the FPM Letter, an agency is not required to take disciplinary action against an employee "when the employee voluntarily reveals the use of illegal drugs prior to being discovered through some other means, obtains counseling or rehabilitation through an [Employee Assistance Program] and thereafter refrains from the use of illegal drugs." Statement of Position at 19 (citing Executive Order No. 12564, section 5(b)(1), (2) and (3); FPM Letter, section 5.d). However, the Agency asserts that Provision 3 does not exclude employees who "were identified by other means than self disclosure and . . . do not refrain from the use of illegal drugs." Id. Because the provision requires the Agency to give such employees a reasonable opportunity to improve their performance before imposing disciplinary or adverse action and does not differentiate between employees who are allowed assistance and those who are not "because of their second identification as a user of illegal drugs[,]" the Agency argues that Provision 3 is inconsistent with section 5(b)(1), (b)(2), (b)(3), and (d) of Executive Order No. 12564 and section 5.d of FPM Letter 792-19. Id. at 20. The Agency argues that Provision 3 is also inconsistent with section 5(c) of the Executive Order because it "would not allow the [Agency] to comply" with the requirement of that section that an agency "take steps to initially remove an employee found to use illegal drugs from a 'sensitive' position." Id. at 21.

The Agency notes the Union's reference to reasonable accommodation under the Rehabilitation Act. However, the Agency argues that Provision 3 does not provide for reasonable accommodation consistent with the Rehabilitation Act because the provision does not account for the "numerous circumstances where an employee would not be entitled to a reasonable accommodation because (s)he fails to establish the prerequisites for being considered a qualified handicapped individual." Id. at 16. In this regard, the Agency asserts that all Agency positions "have been designated as 'sensitive'" and that Agency employees "who are found to use illegal drugs are not 'normally' going to be able to demonstrate that they are 'qualified' handicapped individuals . . . ." Id. at 16-17.

Finally, the Agency argues that Provision 3 directly interferes with its rights under section 7106(a) of the Statute to discipline employees, determine internal security practices, assign work, and assign employees and is not an appropriate arrangement under section 7106(b)(3) of the Statute because "the burden of having to retain an employee who will be periodically absent due to relapses . . . outweighs the benefit of enabling an employee to escape the consequences of his own misconduct . . . ." Agency's Reply at 12.

2. Union

The Union contends that Provision 3 is intended to incorporate the Agency's current policy statement and Executive Order No. 12564 and is "completely consistent with" relevant regulations and policies including FPM Supp. 792-2, entitled "Establishing a Drug-Free Federal Workplace." Petition at 5. The Union argues that the provision provides drug or alcohol-abusing employees who voluntarily enroll and cooperate in the Employee Assistance Program (EAP) a "respite from immediate disciplinary action" due to misconduct related to the drug or alcohol abuse, but "does not protect or shield employees from . . . offenses which are unrelated to the underlying . . . alcoholic or drug-abuse conduct." Response at 18, 20 (footnote omitted).

The Union "concedes that restricting management from disciplining employees for cause during the rehabilitation process under the Employee Assistance Program interferes with management's right to discipline." Id. at 18. However, the Union contends that Provision 3 is an appropriate arrangement intended "to alleviate the adverse affects of management's exercise of it[s] right to take discipline against employees who have voluntarily come forward and identified themselves as alcohol or drug abusers and requested entrance into" the EAP. Id. at 16. The Union states that the provision "applies after the employer has assigned an employee to the EAP." Id. at 24. According to the Union, the provision "emphasize[s] the requirements of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791 et seq." and the Agency's policy "to encourage employees to avail themselves of the opportunity for rehabilitation." Id. at 17-18. The Union asserts that, under the Rehabilitation Act, management must provide a reasonable accommodation to drug and alcohol abusers who are considered "handicapped" individuals and that such accommodation includes "allowing for rehabilitation free from the imposition of discipline for the drug [or alcohol] abuse itself." Id. at 20. The Union maintains that Provision 3 "would shield, or provide 'safe harbor,' for cooperating employees who are in the process of rehabilitation . . . [to] reach[] an acceptable level of competence" and would at the same time "protect[] the integrity of the [EAP] program . . . ." Id. at 19, 21. The Union states that although Provision 3 addresses the rehabilitation of employees who abuse alcohol or drugs, including "the specific problem of relapse by drug and alcohol addicts[,]" it "does not protect or shield employees from . . . actionable offenses which are unrelated to the underlying disability, or alcoholic or drug-abuse conduct." Id. at 20 (footnote omitted).

The Union contends that Provision 3 provides the same criteria for bringing an employee's performance up to an acceptable level as does FPM Supp. 792-2 and "would hardly cause any significant adverse effect on the [Agency's] mission" because the provision's "main effect would be to enforce what is already a favored program." Id. at 24. The Union acknowledges that the provision may have an adverse impact on management's rights as the result of an employee's "periodic absence from the job due to early relapses, or to attend counseling." Id. However, the Union argues that such an adverse impact is outweighed by the substantial benefit of retaining rehabilitated employees. According to the Union, Provision 3 has a "minimal impact on the [A]gency" because the provision "reflects the [Agency's] existing policy . . . ." Id. at 25. Further, the Union contends that by requiring that the Agency "normally" allow an employee a "reasonable" amount of time to bring his or her performance to an acceptable level, the provision "preserv[es] the latitude to deviate from that policy." Id.

B. Analysis and Conclusions

For the following reasons, we find that Provision 3 is inconsistent with Executive Order No. 12564 and FPM Letter 792-19 and, therefore, is nonnegotiable.

Under section 5(b) of Executive Order No. 12564, agencies are required to "initiate action to discipline any employee who is found to use illegal drugs." However, 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" EAP, and thereafter refrains from using illegal drugs. Section (b)(1), (2), and (3) of Executive Order No. 12564. See American Federation of Government Employees, National Council of HUD Locals and U.S. Department of Housing and Urban Development, 43 FLRA 1405, 1409 (1992) (HUD); 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, 953 F.2d 687 (D.C. Cir. 1992). 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 No. 12564 are clarified and supplemented by FPM Letter 792-19. 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. Specifically, section 5.d(8) of the FPM Letter provides that "[i]nitiating action to remove the employee from Federal service is mandatory 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) (Department of Justice). Moreover, section 5.d(7) requires in part that agencies initiate action to remove an employee who, "once having completed counseling or rehabilitation, fail[s] to refrain from illegal drug use."

Provision 3 would "normally" prevent the Agency from disciplining employees who have accepted assistance through an EAP until those employees have been given a reasonable opportunity to improve their work performance to an acceptable level. The Union intends the term "employees who have accepted assistance" to include only those employees who have voluntarily identified themselves as drug or alcohol abusers and accepted confidential assistance through the EAP. See Response at 16. Because the provision is ambiguous in this regard and because the Union's interpretation is not inconsistent with the plain wording of the provision, we will adopt the Union's interpretation that the provision applies only to employees who have voluntarily identified themselves as drug or alcohol abusers and accepted confidential assistance through the EAP. Although the Union does not specify the time frame for the term "reasonable opportunity to improve[,]" the Union acknowledges that the provision restricts management from disciplining employees while they are undergoing rehabilitation through the EAP. The Union further acknowledges that the provision is intended to address "the specific problem of relapse by drug and alcohol addicts" and encompasses employees who are "periodic[ally] absen[t] from the job due to early relapses . . . ." Id. at 20, 24.

By encompassing drug-addicted employees who experience relapse, the provision "normally" protects employees who have not remained drug free after they have voluntarily admitted using illegal drugs and sought assistance through the EAP. Further, the provision effectively precludes the Agency from initiating any disciplinary action against such employees during the time they are in rehabilitation. As we noted above, section 5(b) of the Executive Order requires agencies to discipline an employee who, after obtaining counseling or rehabilitation, fails to refrain from illegal drug use. Because the provision effectively prevents the Agency from disciplining such employees, we conclude that Provision 3 is inconsistent with section 5(b) of Executive Order No. 12564. See HUD, 43 FLRA at 1413 (Proposal 4) (proposal exempting from discipline any employee who is voluntarily identified as a substance abuser and who enrolls in a bona fide treatment program was inconsistent with section 5(b) of Executive Order No. 12564 because the proposal made "no reference to the additional requirement in section 5(b) that the employee, after obtaining counseling or rehabilitation, refrain from illegal drug use"). Similarly, the provision is inconsistent with the requirement of section 5.d(7) of FPM Letter 792-19 that agencies initiate action to remove an employee who, "once having completed counseling or rehabilitation, fail[s] to refrain from illegal drug use." See id. at 1410 (Proposal 1) (proposal that 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 was inconsistent with section 5.d(7) of FPM Letter 792-19).

Moreover, by effectively precluding the Agency from disciplining drug-addicted employees who experience relapse, the provision also prevents the Agency from removing employees who are found for a second time to use illegal drugs and, therefore, is inconsistent with the requirements of both section 5(d) of Executive Order No. 12564 and section 5.d(8) of FPM Letter 792-19 that an agency initiate action to remove such employees. See id. (proposal precluding the agency from initiating action to discipline employees who are found for a second time to use illegal drugs was inconsistent with section 5(d) of Executive Order No. 12564 and section 5.d(8) of FPM Letter 792-19).

The Authority has determined that Executive Order No. 12564 and FPM Letter 792-19 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. As Provision 3 is inconsistent with both the Executive Order and the FPM Letter, it is nonnegotiable under section 7117(c) of the Statute. Therefore, we need not address the Agency's arguments that the provision directly interferes with management's rights and is not an appropriate arrangement or the Union's argument that the provision is an appropriate arrangement.

We find that the provision's statement that the Agency will "normally" follow the provision's requirements does not preserve the Agency's ability to act in a manner that is consistent with the requirements of law and Government-wide regulation. Therefore, the use of modifier "normally" in the provision does not affect our determination that the provision is inconsistent with Executive Order No. 12564 and FPM Letter 792-2. See generally Federal Employees Metal Trades Council of Charleston and Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 29 FLRA 1422, 1426 (1987) (Proposal 2).

We note the Union's reference to the Rehabilitation Act and the requirement under that law that Federal agencies make reasonable accommodations for the limitations of their qualified handicapped employees unless the agencies can show that to do so would impose undue hardship on their operations. To the extent that the Union argues that Provision 3 constitutes a reasonable accommodation required by the Rehabilitation Act, we reject that argument because the Union acknowledges that the provision is not limited to employees who are qualified handicapped employees under the Rehabilitation Act. See Response at 19. Moreover, the provision covers employees who experience relapses and such employees include individuals who are currently engaging in the illegal use of drugs and who, therefore, are not considered qualified handicapped individuals under the Rehabilitation Act. See HUD, 43 FLRA at 1412.

Accordingly, for the foregoing reasons, we conclude that Provision 3 is inconsistent with law and Government-wide regulation and, therefore, is nonnegotiable.

VI. Order

The Agency must rescind its disapproval of Provision 2.(4) The petition for review as to Provisions 1 and 3 is dismissed.

Dissenting Opinion of Member Armendariz as to Provision 1

For the following reasons, I disagree with my colleagues' conclusion that Provision 1 is nonnegotiable.

The Agency interprets Provision 1 as fixing the terms of the entire Program Statement for the life of the parties' agreement. I disagree with the Agency's interpretation of Provision 1 because it ignores the effect of the second sentence of the provision in establishing the extent to which the provision would fix the terms of the Program Statement for the life of the parties' agreement. Although the second sentence of the provision is not in dispute, I believe that both sentences of the provision must be examined in order to understand the intended meaning of the provision. See, for example, National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738, 741 (1992); American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 41 FLRA 618, 624 (1991) (sections of provisions which were not in dispute were used to analyze the meaning of disputed provisions).

The first sentence of Provision 1 states that it incorporates the entire Program Statement into the parties' agreement. However, Provision 1 does not fix the entire Program Statement for the life of the agreement because the second sentence of Provision 1 states in relevant part that portions of the Program Statement will not be changed "to the extent that they are negotiable[.]" Reading both sentences together, the provision would make the Program Statement part of the parties' agreement but would allow the Agency to change the nonnegotiable portions of the Program Statement. Thus, the provision would fix for the life of the agreement only the negotiable portions of the Program Statement, not the entire Program Statement as the Agency contends. Therefore, the provision read as a whole does not preclude the Agency from changing the nonnegotiable portions of its Program Statement during the life of the agreement. Interpreting the provision in this manner is consistent with the Union's explanation that Provision 1 would "fix only those portions of [the Program Statement] which would be negotiable." Response at 4.

The Agency argues that Provision 1 is nonnegotiable because specific portions of the Program Statement conflict with management's rights and are inconsistent with Government-wide regulations. However, as noted above, Provision 1 would not fix for the life of the agreement portions of the Program Statement that are nonnegotiable. Moreover, even assuming, as the Agency alleges, that portions of its own Program Statement are inconsistent with Government-wide regulations, the Agency would not be required to comply with those portions because the provision permits the Agency to do what it is otherwise required to do--bring those portions into compliance with Government-wide regulations.

The Agency further argues that Provision 1 is nonnegotiable under Department of Energy because it would "fix[] the terms of th[e] Program Statement for the duration of the contract" and require "management to comply with them during the period of the collective bargaining agreement regardless of whether the regulation is revised or rescinded." Statement of Position at 3, 4. However, because Provision 1 prevents the Agency from changing only the negotiable portions of the Program Statement for the life of the contract, the portions of the Program Statement that would be inconsistent with management's rights could be changed during the life of the contract. Therefore, unlike the disputed provision in Department of Energy, Provision 1 would not constitute an impermissible negotiation of contractual limitations on management's exercise of its rights under section 7106 of the Statute.

Accordingly, because Provision 1 merely fixes for the life of the agreement only those portions of the Program Statement that are negotiable, I would find that Provision 1 is negotiable.