United States, Department of the Air Force, Aerospace Maintenance, and Regeneration Center, Davis-Monthan Air Force Base, Tucson, Arizona (Respondent/Agency) and American Federation of Government Employees, Local 2924 (Charging Party/Union)

[ v60 p895 ]

60 FLRA No. 166

UNITED STATES
DEPARTMENT OF THE AIR FORCE
AEROSPACE MAINTENANCE
AND REGENERATION CENTER
DAVIS-MONTHAN AIR FORCE BASE
TUCSON, ARIZONA
(Respondent/Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2924
(Charging Party/Union)

DE-CA-02-0172

_____

DECISION AND ORDER

May 12, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel (GC) filed an opposition to the Respondent's exceptions. The GC also filed cross-exceptions to the Judge's decision, to which the Respondent filed an opposition.

      The complaint alleges that the Respondent violated § 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by repudiating certain contractual provisions related to drug testing. For the reasons set forth below, we dismiss the complaint.

II.      Background and Judge's Decision

A.      Background

      This case involves the meaning and application of several provisions in an Executive Order, an Air Force-wide Civilian Drug Testing Plan, an Air Force Civilian Drug Testing Agreement between Davis-Monthan Air Force Base (the Respondent or the Agency) and American Federation of Government Employees Local 2924 (the Charging Party or the Union), and a local collective bargaining agreement entered into between the Respondent and the Charging Party. These provisions are discussed below, followed by a discussion of the events in this case.

1.      Relevant Provisions  [n2] 

      Executive Order 12564, "Drug-Free Federal Workplace," issued in 1986, states that: (1) federal employees are required to refrain from the use of illegal drugs; (2) the use of illegal drugs by federal employees is "contrary to the efficiency of the service[;]" and (3) persons who use illegal drugs are not suitable for federal employment. Jt. Ex. 3 at 2. Agencies are required to develop plans for achieving the objective of a drug-free workplace. See id. These plans must set forth the agency's expectations regarding drug use and actions to be anticipated in response to identified drug use, and must include employee assistance programs that emphasize referral to rehabilitation. See id.

      The Executive Order makes distinctions between employees who are found to use illegal drugs and employees who voluntarily identify themselves as users of illegal drugs. Section 5(a) of the Executive Order requires agencies to refer employees who are found to use illegal drugs to an Employee Assistance Program for assessment, counseling, and referral for treatment or rehabilitation as appropriate. Section 5(b) states that agencies shall initiate action to discipline employees who are found to use illegal drugs, except that discipline is not required for employees who voluntarily identify themselves as illegal drug users prior to being identified through other means and who meet other conditions.

Sections 5(c) and (d) state:
(c)      Agencies shall not allow any employee to remain on duty in a sensitive position who is found to use illegal drugs, prior to successful completion of rehabilitation through an Employee Assistance Program. However, as part of a rehabilitation or counseling program, the head of an Executive agency may, in his or her discretion, allow an employee to return to duty in a sensitive position if it is determined that this action would not pose a danger to public health or safety or the national security.
(d)      Agencies shall initiate action to remove from the service any employee who is found to use illegal drugs and:
(1)      Refuses to obtain counseling or rehabilitation [ v60 p896 ] through an Employee Assistance Program; or
(2)      Does not thereafter refrain from using illegal drugs.

Jt. Ex. 3 at 4.

      In 1990, pursuant to the Executive Order, the Department of the Air Force issued its "Air Force Civilian Drug Testing Plan" (AF Drug Testing Plan). Under the AF Drug Testing Plan, employees who are found to use illegal drugs "will be referred for substance abuse counseling and rehabilitation, and, if the employee occupies a TDP [Testing Designated Position], must not be permitted to remain in that position." Jt. Ex. 4 at 19. Employees who are in TDPs are subject to random drug testing. Each employee working in a TDP is required to sign a notice, which states in pertinent part:

If you are found to use illegal drugs, you will be removed from the TDP and you will be separated from the Federal service unless you agree to participate in a counseling or rehabilitation program. However, if you accept counseling or rehabilitation, you still may be subject to disciplinary or adverse action and will be placed in a non testing designated position.

Respondent Ex. 2 at 2.

      The AF Drug Testing Plan further provides that, "[a]t the discretion of the activity commander . . . and as part of rehabilitation, an employee may return to duty in a TDP if the employee's return would not endanger public health, safety, or national security." Jt. Ex. 4 at 19.

      In 1991, the Union and the Respondent entered into a local agreement called the "Air Force Civilian Drug Testing Agreement Between Davis-Monthan Air Force Base and AFGE Local 2924" (Local Drug Agreement). Jt. Ex. 2 at 1. Section 6 of the Local Drug Agreement, "Notification to Employees," states in relevant part:

The results of a verified positive drug test may result in a number of management decisions or options; these may include, but are not limited to, leaving the affected employees in their assigned positions, temporarily assigning such employees to other duties or positions, placing employees on appropriate leave, and taking any other actions consistent with management rights.

Jt. Ex. 2 at 3.

      Section 9 of the Local Drug Agreement, "Counseling and Rehabilitation," which, like Section 6, refers to employees whose drug tests have been verified positive, states that such employees are required to report for evaluation and appropriate referral for counseling and/or rehabilitation, and will be informed of the consequences if they refuse counseling or rehabilitation. Section 9(a) of the Local Drug Agreement then states as follows:

The Employer will retain employees in a duty or approved leave status while undergoing rehabilitation. If placed in a non-duty status, the employee will normally be returned to duty after successful completion of rehabilitation. At the discretion of the activity commander, an employee may return to duty in a TDP, including the TDP formerly occupied by the employee, if the employee's return would not endanger public health, safety or national security.

Jt. Ex. 2 at 5.

      Section 12 of the Local Drug Agreement, "Reasonable Accommodations," states in pertinent part that if an employee does not challenge a report of a positive drug test, the Respondent will make reasonable accommodations for the employee's drug problem by providing the employee access to a drug treatment and rehabilitation program. See id. at 6. Section 13, "Verification Interview with [Medical Review Officer]," sets forth procedures that must be followed if an employee who tests positive for drug use wishes to provide medical evidence to explain the positive result. See id. at 6, 12.                                         

      In December 1998, the Union and the Respondent entered into a local collective bargaining agreement (CBA) that includes a provision on drug testing. Article 27, "Alcoholism and Drug Abuse Programs," incorporates the parties' Local Drug Agreement. See Jt. Exh. 1 at 33. Article 27 states that the "ultimate objective of the drug and alcohol abuse program will be to rehabilitate the employee" and that "[r]eferral for diagnosis and acceptance of treatment should in no way jeopardize an employee's job security or promotional opportunities." Id.

2.      Events in this case

      All of the employees in this case occupied TDPs and were found to have used illegal drugs. [n3] They did not voluntarily identify themselves as users of illegal drugs before testing positive for illegal drug use.

      In November 2001, the Respondent terminated employee R for using illegal drugs. He filed a grievance protesting his termination. Subsequently, the Union filed the unfair labor practice charge (ULP) that initiated this case. The charge alleged that the Respondent [ v60 p897 ] "repudiated and continues to repudiate Article 27" of the parties' CBA. GC Ex. 1(a).

      After the ULP charge was filed, three other employees (employees C, N, and H) were terminated following positive drug tests. Employee C was terminated before having an opportunity to complete the rehabilitation program in which he had enrolled. Employee N was undergoing rehabilitation when he was issued proposed notices of removal, and he was terminated after completing rehabilitation. Employee H was not enrolled in a rehabilitation program before he was terminated.

      Each of the employees appealed their terminations: employees H and N filed appeals with the Merit Systems Protection Board (MSPB) and employee C filed a grievance under the parties' negotiated grievance procedure. [n4] 

      After the three employees had appealed their terminations, the Union amended its initial ULP charge to note those terminations. See GC Ex. 1(b). Subsequently, the GC issued a complaint alleging that the Respondent "made the decision to remove" employees C, N, and H "without complying with the contractual obligations" in Article 27 of the parties' agreement and §§ 9 and 12 of the Local Drug Agreement, in violation of § 7116(a)(1) and (5) of the Statute. GC Ex. 1(c) ¶ 22.

      Prior to the hearing in this case, the Respondent filed a motion with the Judge to dismiss the complaint on the ground that the complaint was barred by § 7116(d) of the Statute. [n5] In this regard, the Respondent argued that the issues raised in the ULP charge and the individual grievances of employees R and C "are the same, namely the Respondent's alleged violation of Article 27 of the parties' collective bargaining agreement and the [Local Drug Agreement]." Respondent's Motion to Dismiss at 3. The Respondent contended that the complaint should be dismissed because the grievances were filed before the ULP charge was filed and, therefore, "an irrevocable election [had] occurred." Id. at 4.

B.      Judge's Decision

      As an initial matter, the Judge found that the Union's institutional claim of repudiation of the Local Drug Agreement and the CBA was not barred by § 7116(d) of the Statute, but that the relief requested for the individuals named in the complaint was barred and would not be considered.

      As to the merits of the complaint, the Judge first addressed the Local Drug Agreement. Noting that the first sentence of § 9(a) of the Local Drug Agreement states that the Respondent "will retain employees in a duty or approved leave status while undergoing rehabilitation[,]" the Judge found that this sentence was "clear and wholly unambiguous" and that it "mandates that the Employe[r] will retain employees in a duty or approv[ed] leave status while undergoing rehabilitation." Id. at 25, 27 (emphasis omitted).

      The Judge rejected the Respondent's assertion that the Union had claimed that this provision meant "that employees undergoing rehabilitation were immune from discipline." Id. at 26. In this connection, the Judge found that the Union did not question management's right to impose discipline under § 9(a), "except that [the] Respondent could not remove an employee [who was] undergoing rehabilitation." Id. In this regard, the Judge stated that "[c]learly, if in rehabilitation, the Employer shall not remove, or attempt to remove, the employee." Id. at 27. The Judge found that by issuing notices to remove employee N "during successful, on-going, rehabilitation" and by removing employee C "before completing rehabilitation," the Respondent violated § 9(a) of the Local Drug Agreement. Id. at 28.

      The Judge further noted that the second and third sentences of § 9(a) provide that employees "`will normally be returned to duty after successful completion of rehabilitation'" and that it is "`[a]t the discretion of the activity commander'" to do so. Id. at 25 (quoting Jt. Ex. 2 at 5). In this regard, the Judge acknowledged that the Respondent has the discretion under the Local Drug Agreement to decide whether to return an employee to a TDP following successful completion of rehabilitation.

      However, the Judge found that the intent of the various provisions was to restore at least some employees to duty after successful rehabilitation, not to refuse to return any and all employees to a TDP position after successfully completing rehabilitation. In this regard, the Judge found that although the Executive Order mandates that employees who test positive for drugs be removed from sensitive positions, § 5(c) of the Executive Order contains an "implied imperative" that an employee be restored to a TDP position upon the successful completion of rehabilitation. Id. at 26. Additionally, [ v60 p898 ] the Judge found that the Respondent's Commander had stated that he had "zero tolerance for drugs and notwithstanding rehabilitation, drug users would be ousted." Id. at 21. The Judge also credited testimony that, when the Commander was reminded that the parties had a collective bargaining agreement, the Commander replied "`I don't care'" about it. Id. at 19 (quoting Tr. at 42); see also, id. at 20, 23, 27, 30.

      The Judge further found that the Medical Review Officer (MRO) violated § 13(b) and (c) of the Local Drug Agreement, as amended, by failing to: accept medical documentation offered by employee H to explain a positive drug test result; include the documentation as part of the record; state a reason for rejecting the proffered documentation; and send his findings, including his reasons for rejecting the documentation, to the MRO of the Public Health Service. Based on the foregoing, the Judge found that the MRO's "complete flaunting of the provisions" violated § 13 of the Local Drug Agreement, as amended. Id. at 29.

      Having found that the Respondent violated provisions of the Local Drug Agreement, the Judge next considered whether the violations constituted a repudiation of those provisions. The Judge applied the repudiation standard set forth in Authority precedent and found that the Respondent repudiated §§ 9(a), 12, and 13 of the Local Drug Agreement. [n6] The Judge further found that, "[b]y the same words and actions" that constituted a repudiation of the Local Drug Agreement, the Respondent repudiated Article 27 of the CBA, "which compl[e]ments and supplements the Local Drug Agreement." Id. at 30.

III.      Positions of the Parties

A.      Respondent's Exceptions

      The Respondent filed five exceptions to the Judge's decision.

      First, the Respondent asserts that the Judge abused his discretion by applying the "plain meaning rule" to § 9(a) of the Local Drug Agreement and Article 27 of the CBA. Exceptions at 6. The Respondent claims that those provisions are ambiguous and that the Judge should have taken into account the parties' intent, as demonstrated by witness testimony, that the parties did not intend in those provisions "to bar disciplinary action" or "hold[] disciplinary actions in abeyance while an employee is enrolled in rehabilitation." Id. at 8.

      Second, the Respondent asserts that the Judge misapplied Authority precedent in finding that the Respondent had repudiated §§ 9(a) and 13 of the Local Drug Agreement and Article 27 of the CBA.

      Third, the Respondent asserts that even if the Judge's interpretation of § 9(a) of the Local Drug Agreement and Article 27 of the CBA is upheld, the provisions as so interpreted are unenforceable because they are contrary to management's right to discipline under § 7106(a)(2)(A) of the Statute.

      Fourth, the Respondent contends that the language of Article 27 and the Local Drug Agreement is unenforceable because it is contrary to the Executive Order. The Respondent contends that the Executive Order requires agencies to initiate removal actions against any employee who, after being found to use illegal drugs, refuses to obtain counseling or rehabilitation, or does not refrain from using illegal drugs. In this regard, the Respondent asserts that the Judge failed to address whether "a one time use [of drugs] would violate the agreement." Exceptions at 32.

      Finally, the Respondent asserts that the Judge erred in failing to allow evidence regarding whether Article 30, §§ 2 and 3 of the CBA operates as a waiver which prevented the Union from filing ULP charges over a misinterpretation or misapplication of the contract. The Respondent asserts that since the Judge did not address this issue, the matter should be "remanded for evidence and testimony to determine the parties' meaning to the language . . . ." Id. at 35.

B.      GC's Opposition

      First, the GC asserts that the Judge correctly applied Authority precedent when he concluded that the Respondent repudiated the Local Drug Agreement and the CBA. The GC rejects the Respondent's assertion that one-time violations of an agreement cannot constitute a repudiation as an incorrect reading of Authority precedent. The GC also contends that the Judge's finding of a repudiation is fully supported by record evidence.

      Next, the GC contends that the Judge did not abuse his discretion either by finding that the language of § 9(a) of the Local Drug Agreement was unambiguous, or by rejecting the testimony of the Respondent's witnesses concerning the meaning of that provision. In this connection, the GC asserts that the Judge properly read § 9(a) in conjunction with other provisions (§ 12 of the Local Drug Agreement, § 5(c) of the Executive Order, and § 8(m) of the AF Drug Testing Plan) as "manifest[ing] an intent `to restore employees to duty after successful rehabilitation.'" Id. at 10 (quoting Judge's Decision at 27).

      The GC also asserts that Article 27 of the CBA and §§ 9 and 12 of the Local Drug Agreement are consistent with the Executive Order and Authority precedent. In [ v60 p899 ] this regard, the GC does not dispute that the Executive Order requires the removal of employees who test positive for drugs and who refuse either to obtain counseling or rehabilitation, or who do not refrain from further drug use. Rather, the GC asserts that the Executive Order "does not appear to contemplate the removal of an employee who engages in treatment or rehabilitation and who remains drug-free thereafter." Id. at 14. The GC asserts that the CBA and the Local Drug Agreement are consistent with the Executive Order in that they "give employees who test positive the opportunity to enter rehabilitation and, if they remain drug-free, [to] have a second chance." Id. at 16. In addition, according to the GC, the Authority has found that proposals concerning the postponement of removal actions pending completion of rehabilitation on the initial finding of drug use are consistent with the Executive Order. Id. at 15.

      Next, assuming without conceding that the Authority's excessive interference test for use in determining the negotiability of proposals under § 7106(b)(3) of the Statute applies in the ULP context, the GC argues that the CBA provisions are appropriate arrangements that do not excessively interfere with management's right to discipline and that the Respondent has misconstrued the GC's position with regard to management's right to discipline. The GC contends that it has never argued that the Respondent may not discipline employees who have tested positive for drugs. Rather, the GC asserts that Article 27 of the CBA and § 9 of the Local Drug Agreement "ameliorate the adverse consequences to employees that are attributable to [m]anagement's right to discipline employees who test positive for illegal drugs." Id. at 21.

      In balancing the benefit to employees under the CBA and the Local Drug Agreement against the intrusion on management's right to discipline, the GC contends that the imposition of the removal penalty could result not only in the employee acquiring a disciplinary record, but in the loss of the employee's job. The GC asserts that the language of Article 27 and § 9(a) "seeks to protect employees who have been found to use illegal drugs from immediately facing such dire employment consequences [as removal] if they are willing to enroll in a treatment program." Id. The GC contends that rehabilitation is a "key principle" underlying the government's approach to drug use and that granting employees an opportunity to seek rehabilitation and to demonstrate that they are no longer using illegal drugs promotes the government's ability to satisfy this governmental objective. Id. at 22. The GC asserts that under the CBA, the Respondent retains its right to discipline and that Article 27, § 2 specifically provides for discipline if rehabilitation is unsuccessful. In sum, the GC asserts that Article 27 of the CBA and the Local Drug Agreement only require the Respondent to "suspend removal actions pending successful completion of a rehabilitation program[,]" and do not preclude the Respondent from otherwise disciplining employees who have tested positive for drugs. Id.

      In addition, the GC argues that the Authority's precedent supports its assertion that Article 27 and the Local Drug Agreement are appropriate arrangements within the meaning of § 7106(b)(3). In this regard, the GC asserts that, unlike cases wherein the Authority found drug testing proposals nonnegotiable, the provisions here do not preclude the Respondent from "taking any sort of disciplinary action against employees found to have used illegal drugs." Id. at 23 (original emphasis).

      Finally, the GC disputes the Respondent's assertion that Article 30 of the CBA constitutes a waiver of the Union's right to file a ULP charge over the repudiation of the agreement.

C.      GC's Cross-Exceptions

      The GC asserts that the Judge erred in finding that the individual relief requested for employees C, N, and H was barred by § 7116(d) of the Statute and excepts to the Judge's failure to award a status quo ante remedy.

D.      Respondent's Opposition

      The Respondent asserts that the complaint should have been dismissed because it is barred by § 7116(d) of the Statute, and that the individuals are not entitled to individual relief.

IV.      Analysis and Conclusions

A.      The Judge erred in finding a repudiation of § 9(a) of the Local Drug Agreement and Article 27 of the parties' CBA.

      In Dep't of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Ill., 51 FLRA 858 (1996) (Scott AFB) the Authority clarified the analytical framework it follows for determining whether a party's failure or refusal to honor an agreement constitutes a repudiation of a collective bargaining agreement.

      Consistent with the framework that was set forth in Dep't of Def., Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 40 FLRA 1211 (1991) (DoD), the Authority held in Scott AFB that it will examine two elements in analyzing an allegation of repudiation: (1) the nature and scope of the alleged breach of an agreement (i.e., was the breach clear and patent?); and (2) the nature of the agreement provision allegedly breached (i.e., did the provision go to the heart of the parties' agreement?). See Scott AFB, 51 FLRA at 862. The examination of either element may require an inquiry into the meaning of the agreement provision allegedly breached. However, it is not always necessary to determine the precise meaning of the provision in order to analyze an allegation of repudiation. See id. at 862 n.4 [ v60 p900 ] (the Authority will no longer follow precedent suggesting "that it is always necessary to determine the precise meaning of an agreement provision in order to resolve an allegation that a respondent repudiated that provision[.]" (emphasis in original)).

      Specifically, with regard to the first element, the Authority stated in Scott AFB:

it is necessary to show that a respondent's action constituted "a clear and patent breach of the terms of the agreement[.]" Cornelius v. Nutt, 472 U.S. at 664 (citation omitted). In those situations where the meaning of a particular agreement term is unclear, acting in accordance with a reasonable interpretation of that term, even if it is not the only reasonable interpretation, does not constitute a clear and patent breach of the terms of the agreement. Cf., e.g., Crest Litho, Inc., 308 NLRB 108, 110 (1992) (NLRB will not find a violation "if the record shows that `an employer has a sound arguable basis for ascribing a particular meaning to his contract and his action is in accordance with the terms of the contract as he construes it.'") (citing Vickers, Inc., 153 NLRB 561, 570 (1965)).

Scott AFB, 51 FLRA at 862-63 (footnote omitted).

      In such a case it is not necessary to examine the second element. See id. at 864. Accordingly, in resolving whether the Judge erred in finding a repudiation, the analytical question here is whether the Respondent acted under a reasonable interpretation of the parties' agreements. The Authority has applied this standard in a number of cases. See, e.g., United States Dep't of the Air Force, Seymour Johnson Air Force Base, 57 FLRA 772, 774 (2002) (Authority upheld judge's finding of no repudiation where the respondent's interpretation of the parties' agreement was reasonable) (Seymour Johnson AFB); Social Sec. Admin., Balt., Md., 55 FLRA 1122, 1126 (1999) (same) (SSA Baltimore); United States Penitentiary, Florence, Colo., 54 FLRA 30, 31 (1998) (same) (Florence).

      The Respondent disputes the Judge's interpretation of the parties' agreements. In this connection, the Respondent asserts that it acted in accordance with the parties' agreements, as demonstrated by the testimony of its witnesses -- the only witnesses who were actually at the bargaining table --- as to the parties' intent when negotiating these provisions. We construe this assertion as a claim that the Respondent acted under a reasonable interpretation of the parties' agreements. Based on the testimony cited by the Respondent, which is discussed more fully below, we find that the Respondent acted under a reasonable interpretation of § 9(a) and Article 27 and, as such, did not commit a clear and patent breach of those provisions.

1.      Section 9(a) of the Local Drug Agreement.

      The Judge found that the language of § 9(a) of the Local Drug Agreement is "clear and wholly unambiguous." Judge's Decision at 25. We disagree. The portion of § 9(a) providing that "[t]he [Respondent] will retain employees in a duty or approved leave status while undergoing rehabilitation" is not "clear and wholly unambiguous" because it is subject to more than one interpretation. Jt. Ex. 2 at 5; Judge's Decision at 25.

      One interpretation is set forth by the Judge. The Judge briefly discussed the testimony of one of the Respondent's witnesses regarding the provision's intent, but based his interpretation primarily on the words of the provision. In this regard, the Judge found that, while "[i]t may well be," as the Respondent's witness testified, "that the first sentence [of § 9(a)] was intended to incorporate the essence of Paragraph 11 of the Air Force's Drug Testing Plan[,] but it does both more and less th[a]n Paragraph 11." Judge's Decision at 25. [n7] In this regard, the Judge found that § 9(a) does less in that it "makes no reference to excused absence for counseling." Id. at 26. The Judge found that § 9(a) does more in that it "specifically direct[s] that `[t]he Employer will retain employees in a duty or approved leave status while undergoing rehabilitation.'" Id. (quoting Jt. Ex. 2 at 5).

      According to the Judge, the first sentence of § 9(a) means that, if an employee is undergoing rehabilitation, the Respondent "shall not remove, or attempt to remove, the employee." Id. at 27. Under the Judge's interpretation, this sentence concerns the Respondent's right to discipline employees inasmuch as it sets forth when the Respondent may terminate, or propose to terminate, employees who are found to use illegal drugs.

      However, the Respondent contends that the provision has a different meaning, as demonstrated by record testimony. As interpreted by the Respondent, this sentence is silent with regard to discipline -- which, in the Respondent's view is governed by the Executive Order and the AF Drug Testing Plan, exceptions at 17-19 -- and concerns only the leave status of employees who attend rehabilitation during duty hours. The Respondent's interpretation is a reasonable one and is fully consistent [ v60 p901 ] with the testimony of the only witnesses who participated in the negotiations that led to the local drug agreements.

      In this regard, the Respondent's Chief of Workforce Effectiveness, who drafted management's proposals during the negotiations for the Local Drug Agreement, testified that the intent of the first sentence of § 9(a) was "to capture the essence of the language contained in Paragraph 11 of the Air Force [D]rug [T]esting [P]lan, making clear that there was an opportunity for an employee to be granted leave or be in a duty status" while participating in rehabilitation. Tr. at 166. The witness explained that, at the time the Local Drug Agreement was negotiated, a supervisor was not required to give an employee annual leave for rehabilitation. According to the witness, as a result, the impact of § 9(a) was that the Respondent would be "compelled to grant leave for the purpose of undergoing rehabilitation, i.e. being in front of [the] counselor." Id. at 167. As explained by the witness, since annual leave is discretionary subject to workload, once the Local Drug Agreement became effective, the Respondent was obligated to grant leave to an employee who goes to rehabilitation during duty hours. See id.

      The witness further testified that the provision was "[n]ot in the least" intended to prohibit the Respondent from disciplining employees. Id. at 167. According to the witness, "it certainly wasn't the intent of that provision" to retain an employee as long as that employee is in rehabilitation. Id. at 169. The witness further testified that § 9(a) "was not a safe harbor provision . . . it was just stating what the status of the employee would be with regard to leave." Id. at 170.

      In addition, the Respondent's former Civilian Personnel Officer, who was part of the negotiating team and a signatory to the parties' CBA, testified as to the parties' intent when they negotiated the CBA and the Local Drug Agreement. With regard to § 9(a) of the Local Drug Agreement, the former Civilian Personnel Officer testified that this provision means that, "if an employee is . . . undergoing rehabilitation . . ., that as far as leave approval, they will be in a duty or approved leave status such as annual leave, sick leave or whatever is appropriate, during the time that they're attending the rehab program." Id. at 258-59.

      The Respondent's witnesses consistently maintained that, in negotiating the local agreements, the Respondent intended to retain its right to initiate and finalize discipline against an employee even if that employee is in rehabilitation. While the GC was aware of the testimony of the Respondent's witnesses and provided its own witness testimony on a variety of issues, the GC's witnesses did not contradict the direct testimony of the Respondent's witnesses regarding the negotiations of the local agreements. In addition, the Judge did not find, either explicitly or implicitly, that the Respondent's witnesses were not credible. [n8] 

      As set forth above, as interpreted by the Respondent, § 9(a) is silent with regard to discipline and concerns only the leave status of employees who attend rehabilitation during duty hours. The Respondent's interpretation is a reasonable one and is supported by the only record testimony as to the parties' intent.

2.      Article 27 of the CBA.

      The Judge further found that the Respondent, "[b]y the same words and actions" that it repudiated § 9(a) of the Local Drug Agreement, repudiated Article 27 of the parties' CBA, "which compl[e]ments and supplements the Local Drug Agreement." Judge's Decision at 30. In this regard, the Judge found that the Respondent "has wholly abrogated" the portion of that provision which states that "`acceptance of treatment should in no way jeopardize an employee's job security or promotional opportunities.'" Id. (quoting Jt. Ex. 1 at 33).

      With regard to Article 27, the former Civilian Personnel Officer testified that there was never any discussion between the Union and the Respondent regarding holding disciplinary actions in abeyance while an employee was engaged in rehabilitation. See Tr. at 259. Rather, according to the witness, most of the discussion about the rehabilitation program "was in line with [whether the Respondent was] going to let the employee take leave . . . or is it going to have to be leave without pay[.]" Id. According to the witness's "recollection, there was nothing that [the parties] talked about as far as . . . whether [the Respondent] would keep an employee in a rehab program for an indefinite time period." Id. With respect to Article 27, the witness testified that "the main thing that was negotiated" was whether the Respondent would allow employees to attend rehabilitation counseling during duty hours. Id. at 260. The witness further testified that there is nothing in Article 27 that in any way limits management's right to take any sort of disciplinary action against an employee who has tested positive for illegal drug use because the negotiations team "wanted to make sure that there was nothing [ v60 p902 ] in [Article 27] that would prevent management from taking . . . any type of disciplinary action." Id.

      As with § 9(a) of the Local Drug Agreement, the Respondent asserts that Article 27 of the CBA is silent with regard to discipline and concerns only the leave status of employees who attend rehabilitation during duty hours. The Respondent's interpretation is a reasonable one and is supported by the only record testimony as to the parties' intent.

3.      The Respondent did not repudiate § 9(a) of the Local Drug Agreement or Article 27 of the CBA.

      Based on the testimony cited above, the Respondent has demonstrated that substantial record evidence supports its contention that § 9(a) of the Local Drug Agreement and Article 27 of the CBA do not concern the discipline of employees found to have used illegal drugs, but, rather, concern only the leave status of employees who attend rehabilitation during duty hours. The testimony of the Respondents' witnesses, who participated in the negotiations of the provisions in question, demonstrates that the Respondent's interpretation of the parties' agreement was reasonable. Based on the Respondent's reasonable interpretation of § 9(a) and Article 27, it was not a clear and patent breach of those agreements to terminate or propose to terminate employees who tested positive for illegal drug use while those employees were enrolled in rehabilitation. See, e.g., Seymour Johnson AFB, 57 FLRA at 774; SSA Baltimore, 55 FLRA at 1126; Florence, 54 FLRA at 31-32. While there may be other reasonable interpretations of these provisions, based on the standard set forth above in Scott AFB, we need not, and do not, determine whether the Respondent's interpretation was the only reasonable interpretation. Accordingly, as the Respondent's interpretation of the provisions was reasonable, the Respondent did not repudiate either § 9(a) of the Local Drug Agreement or Article 27 of the parties' CBA.

B.      The Judge erred in finding that the Respondent repudiated § 12 of the Local Drug Agreement.

      The Respondent does not expressly except to the Judge's finding that it repudiated § 12 of the Local Drug Agreement. However, consistent with our precedent, the Authority may address, sua sponte, matters that were not excepted to by the parties. See, e.g., Headquarters, Nat'l Aeronautics & Space Admin., Wash., D.C., 50 FLRA 601, 620-21 n.18 (1995), enforced as to other matters, 120 F.3d 1208 (11th Cir. 1997), cert. granted, 525 U.S. 960 (1998), and aff'd, 527 U.S. 229 (1999); United States INS, United States Border Patrol, San Diego Sector, San Diego, Cal., 43 FLRA 642, 654 (1991), enforced sub nom. United States INS, U.S. Border Patrol v. FLRA, 12 F.3d 882 (9th Cir. 1993).

      As stated previously, the Judge did not explain his rationale for finding that the Respondent repudiated § 12 of the Local Agreement. However, by its clear terms, § 12 provides that, if an employee tests positive for illegal drug use and does not wish to challenge the findings, the Respondent "will make reasonable accommodations for the employee's drug problem by providing him/her access to a drug treatment and rehabilitation program." Jt. Ex. 2 at 6. As there is no evidence in the record that the Respondent failed to provide the employees access to a drug treatment and rehabilitation program, we find that the Judge erred in finding a repudiation of § 12 of the Local Drug Agreement.

C.      The Judge erred in finding that the Respondent repudiated § 13 of the Local Drug Agreement.

      The Respondent also asserts that the Judge erred in finding a repudiation of § 13(b) and (c) because it was a one-time violation. We agree that the Judge erred in finding a repudiation of § 13(b) and (c), but not for the reason asserted by the Respondent. There is no evidence in the record that a violation of § 13 was ever alleged in the complaint, nor is there any evidence that the matter was fully and fairly litigated at the hearing. For this reason, we find that the Judge erred in addressing that issue at all. See, e.g., United States Customs Serv., S. Central Region, New Orleans Dist., New Orleans, La., 53 FLRA 789, 795-96 (1997). Accordingly, we grant this exception and reverse the Judge's finding of a violation of that provision.

V.      Order

      The complaint is dismissed. [n9]  [ v60 p903 ]


APPENDIX

Article 27, "Alcoholism and Drug Abuse Programs," of the CBA provides:

Section 1. For the purpose of this Article, alcoholism and drug abuse are defined as illnesses in which the employee's job performance is impaired as a direct consequence of the abuse of alcohol or drugs.
Section 2. The Union and the Employer jointly recognize alcoholism and drug abuse as treatable illnesses; therefore, employees having these illnesses will receive the same careful consideration and offer of assistance that is extended to employees having any other illness or health problem. Employees participating in drug or alcohol abuse rehabilitation programs may request sick, annual, or leave without pay the same as they would for medical purposes. If a professional from a rehabilitation program makes a request, in writing, on behalf of the employee for leave, such leave should be granted. Failure to successfully complete a rehabilitation program which results in acceptable work performance, after a reasonable period of time, will result in disciplinary procedures.
Section 3. The ultimate objective of the drug and alcohol abuse program will be to rehabilitate the employee through counseling, referral for medical assistance, and other such means as may be available to aid in the recovery of the employee. Referral for diagnosis and acceptance of treatment should in no way jeopardize an employee's job security or promotional opportunities. Participation in the Drug and Alcohol Abuse Prevention and Control Program, and any information resulting from such participation, including medical records, will be kept in strict confidence in accordance with applicable laws and regulations.
Section 4. The Union shall be entitled to one representative on the Base Drug and Alcohol Abuse Control Committee. A designated Union representative will be invited to attend seminars, workshops, conferences, or training sessions designed to acquaint supervisors, managers, and employees with the Program and its operation.
Section 5. Drug testing will be accomplished in accordance with the Air Force Civilian Drug Testing Agreement between Davis-Monthan Air Force Base and AFGE Local 2924.

Jt. Ex. 1 at 33.

Article 30, "Grievance Procedure," of the CBA provides in pertinent part:

Section 2.

      a.      Scope: A grievance is defined to be any complaint by any employee, the Union, or the Employer concerning:

. . . .

           (2) Any claimed violation, misinterpretation, or misapplication of this Agreement, or any supplement to this Agreement, or any law, rule, or regulation affecting conditions of employment.

. . . .

Section 3. This negotiated procedure shall be the exclusive procedure available to the Union and the employees in the bargaining unit for resolving such grievances except as provided in Section 4 of this Article.

Id. at 38-39.

The Air Force Civilian Drug Testing Agreement Between Davis-Monthan Air Force Base and AFGE Local 2924 (Local Drug Agreement), as amended, provides in pertinent part:

Section 9 - Counseling and Rehabilitation
Employees whose tests have been verified positive will be notified in writing to report to Social Actions for evaluation and appropriate referral for counseling and/or rehabilitation. Employees will be informed of the consequences should they refuse counseling or rehabilitation.
a.      The Employer will retain employees in a duty or approved leave status while undergoing rehabilitation. If placed in a non-duty status, the employee will normally be returned to duty after successful completion of rehabilitation. At the discretion of the activity commander, an employee may return to duty in a TDP, including the TDP formerly occupied by the employee, if the employee's return would not endanger public health, safety or national security.

     . . . .

Section 12 - Reasonable Accommodations [ v60 p904 ]
If the report is positive and employee does not wish to challenge its findings, the Employer will make reasonable accommodations for the employee's drug problem by providing him/her access to a drug treatment and rehabilitation program. If the employee chooses to participate in the program, the employee will be subject to unannounced testing following completion of such a program for a period of one (1) year.
a.      Reasonable accommodation concerning qualified handicapped employees shall be made in accordance with the established law, rule and regulation.
b.      Upon request by the employee, the Employer agrees to provide transportation to and from the drug testing collection site, Social Actions, and MRO visits.
Section 13 - Verification Interview With MRO
a.      The MRO of the Division of Federal Occupational Health (FOH) of the Public Health Service (PHS), contract agency for Air Force civilian drug testing program, will contact the appropriate MRO or licensed physician at the Base Medical Facility to conduct the initial notification interview of a positive test result of a civilian employee. The MRO or licensed physician at the Base Medical Facility will contact the employee to notify of a positive test result and will take into consideration relevant medical information pertaining to legitimate drug use by the employee concerning a positive test result.
b.      After initial notification interview of a positive test result, the employee may provide any medical evidence within ten days of the initial notification to justify the positive result. If additional time is needed to obtain medical or other documentation, the employee must obtain the approval of the Base MRO or licensed physician. The MRO will consider situations beyond the employee's control. Any medical information provided shall be included as part of the record and/or findings of the Base MRO. Copies of verified legally prescribed prescriptions will also be acceptable.
c.      The Base MRO will make notes concerning the verification process on the back of the MRO's copy of the UCCF and should include reasons for rejecting any employee's documentation and should include whether or not he or she considered a quantitative analysis. The Base MRO will send his/her findings to the MRO of the PHS who will verify the positive test results.
d.      No disciplinary or adverse action will be taken against an employee until the MRO verifies a positive test result. The Base MRO will verify test results only after giving the employee an opportunity for a face-to-face interview.

Jt. Ex. 2 at 5-6, 12-13.

Executive Order 12564, Drug-Free Federal Workplace provides, in pertinent part:

Sec. 5. Personnel Actions

      (a)      Agencies shall, in addition to any appropriate personnel actions, refer any employee who is found to use illegal drugs to an Employee Assistance Program for assessment, counseling, and referral for treatment or rehabilitation as appropriate.

      (b)      Agencies shall initiate action to discipline an employee who is found to use illegal drugs, provided that such action is not required for an employee who:

      (1)      Voluntarily identifies himself as a user of illegal drugs or who volunteers for drug testing pursuant to section 3(b) of this Order, prior to being identified through other means;

      (2) Obtains counseling or rehabilitation through an Employee Assistance Program; and

      (3) Thereafter refrains from using illegal drugs.

      (c) Agencies shall not allow any employee to remain on duty in a sensitive position who is found to use illegal drugs, prior to successful completion of rehabilitation through an Employee Assistance Program. However, as part of a rehabilitation or counseling program, the head of an Executive agency may, in his or her discretion, allow an employee to return to duty in a sensitive position if it is determined that this action would not pose a danger to public health or safety or the national security.

      (d) Agencies shall initiate action to remove from the service any employee who is found to use illegal drugs and:

           (1) Refuses to obtain counseling or rehabilitation through an Employee Assistance Program; or

           (2) Does not thereafter refrain from using illegal drugs.

Jt. Ex. 3 at 3-4.


File 1: Authority's Decision in 60 FLRA No. 166
File 2: Opinion of Member Pope
File 3: ALJ's Decision


Footnote # 1 for 60 FLRA No. 166 - Authority's Decision

   Member Pope's opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 166 - Authority's Decision

   The pertinent text of these provisions is set forth in the Appendix to this decision.


Footnote # 3 for 60 FLRA No. 166 - Authority's Decision

   Employees will be referred to by their last initial