File 2: Opinion of Member Pope
[ v60 p905 ]
Member Carol Waller Pope, dissenting:
In disagreement with the majority, I would find that the Respondent repudiated § 9 of the Local Drug Agreement (LDA) and Article 27 of the collective bargaining agreement. I also disagree that the Judge erred in finding that the Respondent repudiated § 12 of the LDA. Thus, even though I agree that the Judge erred by finding that the Respondent repudiated §13 of the LDA, I dissent.
The main issue in determining whether the Respondent repudiated § 9 and Article 27 is whether the Respondent's interpretation of those provisions is reasonable. The Judge found that the Respondent's interpretation was not reasonable, see Judge's Decision at 9, 29-30, and, on review, it is clear that the Judge was correct. In fact, even a cursory reading of the provisions shows that the Respondent's interpretation is far off the mark.
As relevant here, § 9 and Article 27 provide as follows:
Employees whose tests have been verified positive will be notified . . . to report to Social Actions for . . . referral for counseling and/or rehabilitation. . . . [§ 9]
The Employer will retain employees in a duty or approved leave status while undergoing rehabilitation. . . . [§ 9(a)]
Referral for diagnosis and acceptance of treatment should in no way jeopardize an employee's job security . . . . [Article 27, § 3]
Failure to successfully complete a rehabilitation program . . . will result in disciplinary procedures. [Article 27, § 2]
Jt. Ex. 2 at 33; Jt. Ex. 1 at 5-6.
Thus, in the words of § 9 and Article 27: (1) an employee who tests positive for drugs "will" be referred for counseling/rehabilitation, during which time the employee "will" be "retain[ed] in a duty or approved leave status," and (2) while rehabilitation "should in no way jeopardize [the] employee's job security," a failure to successfully complete rehabilitation "will result in disciplin[e]." Id. In agreement with the Judge, I find the provisions "clear and wholly unambiguous." Judge's Decision at 25.
Despite the crystal clear wording of the provisions, the Respondent claims that the intent of these provisions "was to capture the allocation of duty time to attend counseling sessions." Exceptions at 8. I find this claim unbelievable, in every sense of the word. Reading the provisions consistent with the Respondent's interpretation means that employees "will be" referred for counseling and/or rehabilitation but will be fired anyway. Moreover, employees will participate in rehabilitation "in a duty or approved leave status" unless they are in no status at all. Further, participation in rehabilitation will "in no way jeopardize" employees' "job security" unless that job security is eliminated altogether. Finally, while employees' unsuccessful completion of rehabilitation "will result" in discipline, so will successful participation in rehabilitation.
It is absurd to suggest that (even the most incompetent) drafters would express an agreement limited to granting employees leave to attend counseling in terms of "retention" and "job security." As such, the majority's determination to find the Respondent's interpretation of § 9 and Article 27 reasonable mocks the reasonableness standard itself. Accordingly, I would find that the Respondent committed a clear and patent breach of § 9 and Article 27 by its actions regarding Employees C and N. [n1] For the reasons set forth by the Judge, I would conclude that the breached provisions are the heart of the parties' agreement.
I would also find that, as interpreted by the Judge, § 9 and Article 27 are enforceable as appropriate arrangements. It is well-settled, in this regard, that proposals staying the imposition of discipline for employees found to use drugs are arrangements under § 7106(b)(3). NTEU, 43 FLRA 1279, 1307 (1992). And, while proposals that permanently prevent the imposition of discipline excessively interfere with the right to discipline, see, e.g. Int'l Fed'n of Prof'l and Technical Eng'rs, Local 128, 39 FLRA 1500, 1522 (1991) (IFPTE), proposals that merely postpone discipline are appropriate arrangements. See NTEU, 43 FLRA at 1295-1308. Consistent with NTEU, I would find that § 9(a) and Article 27 do not excessively interfere with the Respondent's right to discipline because the significant and undisputed benefit to [ v60 p906 ] employees of avoiding termination during rehabilitation outweighs the effect on management's right resulting from the prohibition on removing employees during rehabilitation. [n2] Accordingly, §9 and Article 27 are enforceable as appropriate arrangements and the Respondent's clear and patent breach constituted unlawful repudiation. [n3]
I would not raise, sua sponte, the issue of whether the Judge erred in finding a repudiation of § 12. Instead, consistent with § 2423.41 of the Authority's Regulations, I would adopt, without precedential significance, the Judge's finding of a violation because it is unchallenged. See, e.g., United States Dep't of Homeland Sec., Border & Transp. Directorate, Bureau of Customs & Border Prot., 59 FLRA 910, 912 n.2 (2004). The reasons the Authority considered issues sua sponte in the decisions relied on by the majority are not present here. See H.Q., NASA, Wash., D.C., 50 FLRA 601, 622 (1995), enforced as to other matters, 120 F.3d 1208 (11th Cir. 1997), cert. granted, 525 U.S. 960 (1998), aff'd, 527 U.S. 229 (1999) (judge misidentified entity responsible for violation); United States INS, United States Border Patrol, San Diego Sector, San Diego, Cal., 43 FLRA 642 (1991), enforced sub nom., United States INS, United States Border Patrol v. FLRA, 12 F.3d 882 (9th Cir. 1994) (judge applied wrong legal standard).
As for the rest of the Respondent's exceptions, I would reject, as bare assertions, the Respondent's claims that the Judge failed to apply rules of contract interpretation and evidence. [n4] In addition, I would deny Respondent's exceptions that the Judge refused to permit it to introduce evidence and that the Judge's decision is contrary to § 5(d) of Executive Order 12564. The former exception is unsupported. The latter is misplaced because 5(d) applies only where an employee either refuses to obtain rehabilitation or does not refrain from using illegal drugs; the employees here were in neither category. I would dismiss Respondent's claim that the Judge failed to address whether Article 30 is a waiver preventing the filing of ULP charges as there is no evidence that this issue was before the Judge. See 5 C.F.R. § 2429.5.
Finally, as to the General Counsel's cross-exception, Authority precedent establishes that an employee's challenge of a removal before the MSPB does not necessarily preclude the Authority from ordering reinstatement with backpay. See Dep't of the Air Force, Air Force Sys. Command, Elec. Sys. Div., 14 FLRA 390, 392 (1984) (Air Force). See also United States Geological Survey, 50 FLRA 548, 552 (1995). Accordingly, I would find that reinstatement with backpay is appropriate, to the extent that Employees C and N were harmed by the Respondent's repudiation. See Air Force, 14 FLRA at 392 (back pay limited to loss caused by statutory violation). I would leave the computation of backpay to compliance proceedings.
Accordingly, I dissent in part.
Footnote # 1 for 60 FLRA No. 166 - Opinion of Member Pope
Bargaining history testimony asserting an unreasonableinterpretation does not make the interpretation any more reasonable. Cf. Norfolk S. Ry. Co. v. Kirby, 125 S. Ct. 385, 397 (2004) ("[W]here the words of a . . . contract have a plain and obvious meaning, all construction, in hostility with such meaning, is excluded.") (quoting Green v. Biddle, 21 U.S. 1, 1823 WL 2458, 5 L.Ed. 547, 8 Wheat. 1, 89-90 ( U.S. Ky. Mar. 5, 1823)); Elkouri & Elkouri, How Arbitration Works 482 (Marlin M. Volz & Edward P. Goggin eds., 5th ed. 1997) ("If the language of an agreement is clear and unequivocal, an arbitrator generally will not give it a meaning other than that expressed.").
Footnote # 2 for 60 FLRA No. 166 - Opinion of Member Pope
I note that the GC offered testimony to the effect thatthe Respondent was permitted to discipline, but not remove, employees during rehabilitation. See Tr. at 44, 148, 149. As the latter testimony distinguishes between discipline and removal, I do not agree with the majority that the testimony was inconsistent. See Majority Opinion at 18 n.8.
Footnote # 3 for 60 FLRA No. 166 - Opinion of Member Pope
The Judge explicitly stated that the Respondent's claimthat the provisions created a "safe harbor" which rendered employees immune from discipline during rehabilitation was a "figment of Respondent's imagination." Judge's Decision at 26. The Judge found, in this regard, that the Charging Party never questioned the Respondent's "right to impose discipline" and that the only prohibition was that the Respondent could not remove an employee during rehabilitation. Id. Moreover, the prohibition extends only to removals based on drug use, not removals for any other reason.
Footnote # 4 for 60 FLRA No. 166 - Opinion of Member Pope
The Respondent argues, in its opposition to the GC'scross-exception, that the complaint is barred by § 7116(d) of the Statute. As the Respondent did not file an exception raising this matter, I would not consider it. See 5 C.F.R. § 2423.40 (establishing procedural and other requirements regarding exceptions, cross-exceptions, and oppositions).