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The decision of the Authority follows:
36 FLRA No. 19
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U. S. DEPARTMENT OF THE NAVY
NAVAL AIR STATION
PATUXENT RIVER, MARYLAND
DECISION AND ORDER ON NEGOTIABILITY ISSUE
June 27, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of a provision which provides that once an employee has received counseling and/or rehabilitative assistance, the employee is subject to administrative action for future conduct or performance-related problems caused by any handicapping condition. The provision was disapproved by the Department of the Navy pursuant to section 7114(c) of the Statute.
Once the employee has received counseling and/or rehabilitative assistance he/she is subject to administrative action for future conduct or performance-related problems caused by any handicapping condition. Counseling or rehabilitative assistance is not required in cases of serious (mis)conduct or performance problems when retention of an employee could prove detrimental to the safety of others, government property, etc.
(Only the underscored sentence of this provision is in dispute).
II.Positions of the Parties
The Agency claims that the provision "would preclude it from removing an employee from his or her sensitive position . . . before the employee has received counseling and/or rehabilitative assistance." Statement of Position at 2 (emphasis in original). The Agency argues that the provision cannot be read to apply only to conduct that has occurred after the employee has been in counseling.
The Agency contends that, as interpreted, the provision conflicts with two sections of Executive Order 12564. First, the Agency maintains that the provision is inconsistent with section 5(c) of the Executive Order.(1) According to the Agency, under section 5(c), if an employee who is in a sensitive position "is found to use illegal drugs, the agency must, at a minimum, temporarily remove that employee from his or her position prior to successful completion of rehabilitation through an Employee Assistance Program." Id. at 3. The Agency asserts that the provision conflicts with Section 5(c) because it prevents management from removing an employee from a sensitive position before the employee receives counseling and/or other assistance.
Second, the Agency argues that the provision is inconsistent with section 5(b) of Executive Order 12564.(2) The Agency argues that, under section 5(b), agencies are required to take disciplinary action against an employee who is found to use illegal drugs unless the employee meets specific conditions. The Agency asserts that because the provision does not distinguish between employees who voluntarily identify themselves as drug users or voluntarily submit to drug testing and employees who are identified as users of illegal drugs by other means, it is inconsistent with section 5(b). The Agency maintains that as Executive Order 12564 constitutes a Federal law, the provision is nonnegotiable under section 7117(a)(1) of the Statute.
The Agency also maintains that the provision interferes with its right to discipline under section 7106(a)(2)(A) of the Statute. The Agency argues that because the provision would prevent management from taking disciplinary action "as long as the employee was progressing satisfactorily in a rehabilitative program or until such time as rehabilitation is completed[,]" the provision would prevent the Agency from taking disciplinary action. Id. at 4.
Additionally, the Agency argues that the provision interferes with management's right to discipline because it "is more than a recognition of a preexisting legal duty" to provide reasonable accommodation to qualified handicapped employees under 29 C.F.R. § 1613.704. Id. at 5. The Agency states that it is aware that under certain conditions, its right to discipline "bona fide handicapped employees might be limited [by] Federal law and regulation." Id. However, the Agency asserts that, by requiring management to suspend action against any employees found to use illegal drugs or alcohol, the disputed provision applies "the requirement for reasonable accommodation to employees who would not be entitled to it by law and regulation, i.e., those who are not qualified handicapped employees[.]" Id.
The Union maintains that the disputed provision "is intended to inform the reader that submitting to counseling and/or rehabilitative assistance does not shield an employee from administrative actions, including but not limited to discipline." Petition for Review at 1. The Union asserts that administrative actions could include removing an employee from a sensitive position.
The Union argues that the Agency's reading of the provision, which would preclude administrative action before an employee receives rehabilitative assistance or counseling, is contrary to the plain language of the provision. The Union maintains that the provision is "not intended to contravene any discipline prior to or during an employee's" participation in an Employee Assistance Program (EAP). Union's Response at 4. Because the provision does not prohibit "any appropriate administrative action prior to or during participation in the [EAP]" the Union argues that the provision is negotiable. Id. The Union asserts that "the sole remaining issue is whether or not the [provision] means what the union states that it means[.]" Id. at 5.
IV. Analysis and Conclusion
The provision provides that an employee who has received counseling and/or rehabilitative assistance is subject to administrative action for future conduct or performance-related problems caused by any handicapping condition. The Union explains that the provision informs employees that enrolling in an EAP will not give them immunity from disciplinary action. The Agency, however, regards the provision as limiting the actions the Agency may take before, during, and after an employee's enrollment in an EAP. The intent ascribed to the provision by the Union does not limit the Agency in the exercise of its rights.
In its petition for review, the Union states that the "thrust of the clause is to attempt to prevent any sense of 'immunity' by way of enrolling in the [EAP]." Union's Petition for Review at 2. The Union also explains that it "uses the broader term 'administrative actions,' rather than the narrower term 'disciplinary action,' to indicate that the [A]gency is able to use other administrative actions than just discipline." Id. We also interpret the provision as containing no limitation on the type of action an Agency may take against an employee at any time, regardless of whether it may be characterized as "administrative." We conclude, therefore, that the Union's explanation of the provision is consistent with its plain wording and we adopt it for purposes of our analysis. See, for example, Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 485, 511 (1987) (Proposal 10), enforced sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1734 (D.C. Cir. June 22, 1990). As such, the Agency's reliance on the Authority's decision in National Federation of Federal Employees, Local 29 and Department of the Army, U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA 75, 76 n.3 (1984), for its assertion that the Union's statement of intent is inconsistent with the plain wording of the provision is misplaced.
Based on the plain wording of the provision, we reject the Agency's assertions that the provision conflicts with sections 5(b) and (c) of Executive Order 12564. The provision does not prevent the Agency from taking administrative action, including removal, based on conduct or performance-related problems for which the employee is receiving, or has received, counseling and/or rehabilitative assistance. Further, nothing in the provision would prevent the Agency from taking administrative action, including removing employees from sensitive positions pending determinations that the employees can perform the functions of their jobs, based on employees' previous, current, or future conduct. In fact, the provision informs employees that they will be subject to administrative action for future conduct even if they are enrolled in a rehabilitation or counseling program. Consequently, the provision does not interfere with Executive Order 12564. Compare American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1065-68 (1988), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, Case No. 88-7408 (9th Cir. Feb. 7, 1989) (proposal preventing the agency from taking administrative action against employees with alcohol or drug problems until employees were afforded reasonable accommodation and rehabilitative assistance found outside the duty to bargain because it conflicted with E.O. 12564).
We also reject the Agency's argument that the provision is inconsistent with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. As noted above, the provision does not prevent the Agency from taking administrative action, including removal, before, during, or after an employee has received counseling and/or rehabilitative assistance. In fact, the provision provides that after an employee receives counseling and/or rehabilitative assistance, the employee is subject to administrative action. Consequently, the provision does not directly interfere with management's right to discipline. See, for example, American Federation of Government Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA No. 15 (1990) (Proposal 2). Compare American Federation of Government Employees, Local 1812 AFL-CIO and United States Information Agency, 16 FLRA 308, 310-11 (l984) (proposal prohibiting the agency from taking disciplinary action as long as employee was participating in counseling program found to interfere with management's right to discipline under section 7106(a)(2)(A)).
The disputed provision does not conflict with Executive Order 12564 and does not directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. Therefore, the provision is negotiable.
The Agency shall rescind its disapproval of, and give effect to, the provision.(3)
(If blank, the decision does not have footnotes.)
1. Section 5(c) of Executive Order 12564 provides, in relevant part, that:
Agencies shall not allow any employee to remain on duty in a sensitive position who is found to use illegal drugs, . . . .
2. Section 5(b) of Executive Order 12564 provides that:
Agencies shall initiate action to discipline any 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.
3. In finding the provision to be within the duty to bargain, we make no judgment as to its merits.