[ v39 p1197 ]
The decision of the Authority follows:
39 FLRA No. 102
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
HEALTH CARE FINANCING ADMINISTRATION
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 15, 1991
Before Chairman McKee and Members Talkin and Armendariz.
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 two proposals addressing the implementation of the Agency's drug testing program.
Proposal 1 provides that former illegal drug users, who successfully complete rehabilitation and thereafter test negative for drug use, will not be eliminated from competition for sensitive positions within the bargaining unit, if they are otherwise qualified for such positions. The disputed sentence of Proposal 2 would require the Agency to make efforts to continue an employee, who voluntarily admits to drug abuse and demonstrates continuing successful participation in a rehabilitation program, in a position consistent with the protection of public health and safety and with national security. For the following reasons we find both proposals to be negotiable.
II. Proposal 1
Section 7.I. When a record exists of illegal drug use and an employee has successfully completed rehabilitation and thereafter refrains from drug use and tests negative, that employee will not be eliminated as an otherwise qualified candidate for a sensitive unit position.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 1 would prevent the Agency from considering an employees drug usage as an "in-or-out factor" in evaluating the employee's suitability for a sensitive position. Statement of Position at 3. The Agency states that the proposal interferes with its "right to determine its internal security by directly limiting the Agency's right to assess a candidate's trustworthiness, as it relates to a history of drug usage." Id. The Agency argues that an employee's history of drug use may be an appropriate basis for determining that the employee may not occupy a sensitive position and that such determinations cannot be "placed in the hands of an arbitrator." Id. at 4.
2. The Union
The Union contends that Proposal 1 does not prevent the Agency from taking appropriate personnel actions under Executive Order 12564 (the Executive Order). The Union asserts that the proposal "allows the employing Agency to consider the employee's record of successful rehabilitation but does not require that the employing Agency select the employee for any position, sensitive or non-sensitive." Reply Brief at 4-5. The Union states that Proposal 1 only requires the Agency to consider a rehabilitated former drug user with other candidates. According to the Union, the former drug user "will not be automatically disqualified from consideration due to the pre-rehabilitation drug use." Id. at 5 (emphasis in original) (footnote omitted). The Union contends that as the Executive Order authorizes an agency to reassign a successfully rehabilitated employee to a sensitive position when the agency determines that such reassignment does not threaten public health, safety, or national security, "it would be illogical to conclude that the Executive Order bars considering an employee for (re)assignment in those circumstances." Id. at 7 (emphasis in original).
The Union also asserts that Proposal 1 does not interfere with the Agency's right to determine its internal security practices. According to the Union, the proposal "would not preclude the [Agency] from considering the employee's history of drug use and rehabilitation in assessing whether or not to select the employee for reassignment (to another sensitive position), to return the employee to active duty status in the employee's original sensitive position, or to take other 'appropriate personnel action.'" Id. at 7-8. The Union contends that Proposal 1 "does not mandate determining any individual is suitable for a sensitive position, and does not prescribe the criteria for considering otherwise qualified employees who have successfully completed drug abuse rehabilitation . . . ." Id. at 8-9. The Union also contends, in the alternative, that Proposal 1 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts that the requirement to consider recovered drug abusers for promotions helps both the employee and the Agency "because it provides a visible, discrete example that the Executive Order's emphasis on rehabilitation is more than mere lip service." Id. at 12.
B. Analysis and Conclusions
Proposal 1 provides that an employee who successfully completes a rehabilitation program, subsequently refrains from using illegal drugs, and continues to test negative for illegal drug usage, will not be eliminated from competing for a sensitive unit vacancy, if the employee is otherwise qualified for the position. The Union argues that the proposal "allows the employing Agency to consider the employee's record of successful rehabilitation but does not require that the employing Agency select the employee for any position, sensitive or non-sensitive." Reply Brief at 4-5. The Agency, however, argues that the proposal limits its ability to weigh the trustworthiness of a rehabilitated drug user in deciding whether to assign the employee to a sensitive position.
In its petition for review, the Union states that "it is well-established that an Agency selecting official has extensive discretion to select from among a properly ranked and certified group of eligibles; nothing in Proposal 1 would conflict with any independently-existing right to select, because Proposal 1 addresses only procedures for considering employees and does not mandate that any particular applicant for promotion be selected." Id. at 8. In light of the Union's explanation, which is consistent with the proposal's wording, we conclude that Proposal 1 would not require a selecting official to disregard a rehabilitated candidate's history of drug abuse in weighing that employee's relative standing among applicants for a vacancy in a sensitive position. Rather, as the Union points out, "if an employee referred for promotion or reassignment to a sensitive position were unsuitable for any reason, then Proposal 1 would not require the [Agency] to select the employee in violation of its right to select employees for promotion or of its right to determine its internal security practices." Id.
Construed consistent with the proposal's plain wording and the Union's statement of intent, Proposal 1 would merely require the Agency to consider rehabilitated drug users for vacancies if they possess the requisite qualifications for those positions. The proposal would not require the selection of such employees for sensitive positions, and would not prohibit a selecting official from considering prior drug use when making a selection. Moreover, the proposal would not affect the Agency's discretion to establish qualifications for positions and assess applicants' qualifications for positions. The proposal requires only that the Agency consider rehabilitated drug users who are otherwise qualified for the vacancy together with other qualified applicants. Consequently, we find no basis on which to conclude that the proposal directly interferes with management's rights under section 7106 of the Statute. We note, in this regard, that the Agency's concern that an arbitrator's judgment may be substituted for its own is not a basis for precluding negotiation over Proposal 1. See Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 636 (1987) (Newark Air Force Station) ("questions of any impermissible arbitral interference with management's rights must be directed to the merits, including remedy of an arbitration decision").
Proposal 1 does not directly interfere with management's rights under section 7106 of the Statute. As no other basis for finding the proposal nonnegotiable is asserted or is otherwise apparent, we conclude that the proposal is negotiable.
III. Proposal 2
Section 10.A. If an employee makes a voluntary admission and demonstrates continued successful participation in a rehabilitation program, his/her return to duty in a sensitive position may be considered as not endangering public health, safety, or national security. Every effort will be made to continue the employee in a position consistent with the protection of public health, safety and national security.
[Only the underscored portion of the proposal is in dispute.]
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 2 prevents it from removing an employee, who has voluntarily admitted to illegal drug usage, from a sensitive position while the employee is continuing to participate in a rehabilitation program. The Agency asserts that Proposal 2 "taken as a whole, has the effect of making retention in the sensitive position the norm. Variations would then be subject to arbitral review." Statement of Position at 4.
The Agency states that the assignment of a security clearance level is a prerequisite to an employee's occupation of a sensitive position and asserts that court decisions, including Department of the Navy v. Egan, 484 U.S. 518 (1988) (Egan), limit review of an agency's security clearance determinations to whether the affected employees received minimal due process. According to the Agency, "agencies alone have the right to determine who will receive what level of security clearances," and the criteria used in reaching those decisions "are also exclusively agency choices." Id. at 8.
The Agency rejects the Union's view that assignment to, or retention in, a sensitive position should be considered as part of a former drug user's rehabilitation process. The Agency argues that it "cannot be placed in the position of compromising security in order to accommodate an individual's desire to remain in a sensitive position as a part of his or her personal drug rehabilitation program." Id. at 9. The Agency also disputes the Union's characterization of Proposal 2 as an appropriate arrangement under section 7106(b)(3) of the Statute, contending that the proposal interferes with management's right to determine its internal security practices "to an excessive degree." Id. at 10.
2. The Union
The Union states that Proposal 2 "means an employee who successfully completes rehabilitation, after making a voluntary admission concerning drug use, will not be automatically deemed unsuitable to continue in a sensitive position, which could be either the employee's position of record or another sensitive position." Reply Brief at 9. The Union contends that Proposal 2 is consistent with the Executive Order. According to the Union, the proposal does not prevent the Agency from taking appropriate personnel actions in accordance with the Executive Order. The proposal, the Union states, "requires only that the [Agency] consider whether the employee can be returned to a sensitive position, based on criteria external to the proposal, i.e., those stated in section 5(c) [of the Executive Order]." Id. at 10. According to the Union, the proposal:
doesn't interfere with the Executive Order's range of appropriate personnel actions in cases of drug abuse, either in terms of the employer's ability to "act at all" or in determining the "appropriate" personnel action for employees (including but not limited to reassignment out of the sensitive position the employee most recently encumbered, reassignment to another sensitive position, reassignment to a non-sensitive position, or other personnel action).
The Union further contends that the proposal is an appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by the exercise of management's right to make selections for appointments. The Union identifies the adverse effect on employees as "consideration of the employee's drug abuse and rehabilitation in [Agency] decisions to take specific personnel actions, which, as is evidenced by the Agency's statement of position, would carry generally negative connotations for persons who are 'known drug abusers,' and would reduce promotional prospects despite the employee's other qualifications." Id.
With regard to the balancing of employee benefits against the interference with management's rights, the Union contends that the extent of the interference, if any, "is extremely slight" because the Agency retains the right not to place a successfully rehabilitated drug user in a sensitive position. Id. The Union asserts that the proposal's only interference with management's rights "is the requirement to continue considering an otherwise qualified employee for a desired position, subject to the [Agency's] right to make selections for appointments." Id. at 11-12. The Union argues that the continued consideration of rehabilitated drug users for assignments to sensitive positions "is a significant aid in the rehabilitation process by providing credibility and improved morale in what is a difficult personal problem area, drug abuse." Id. at 12.
B. Analysis and Conclusions
As noted, the Agency interprets Proposal 2 as establishing, as a norm, the retention of a confessed drug user in the sensitive position he or she occupied at the time the employee admitted to using illegal drugs. The Agency's construction is based on the use of the word "continue" in the proposal's disputed sentence. The Agency states that the inclusion of that word in the proposal "limits the interpretation of the phrase 'in a position consistent with the protection of public health, safety and national security' to the position that the employee occupies . . . since the employee would not 'continue' in a position that he or she was not already occupying." Statement of Position at 4. The Agency notes, in this regard that section 5(c) of the Executive Order provides that "[a]gencies shall not allow any employee to remain on duty in a sensitive position who is found to use illegal drugs, prior to the successful completion of rehabilitation through an Employee Assistance Program." Id. at 5.
If the Agency's interpretation of Proposal 2 were correct, the proposal would conflict with section 5(c) of the Executive Order. However, we reject that interpretation of the proposal. In our view, the proposal's first sentence, which is not in dispute, acknowledges the Executive Order's mandate to remove an identified drug user from the sensitive position he or she occupies. In fact, that sentence specifically refers to an employees "return to duty in a sensitive position . . . ." Further, the first sentence provides only that an affected employee "may be considered as not endangering public health, safety, or national security."
The disputed second sentence of Proposal 2 would require the Agency to make "[e]very effort" to "continue the employee in a position consistent with the protection of public health, safety and national security." When the two sentences of the proposal are read together, it is clear that the employees referred to in the second sentence are those described in the first sentence. That is, the second sentence refers to employees who are returning to duty after successful participation in a rehabilitation program. It is clear also that unlike the first sentence, which refers to a sensitive position, the disputed second sentence refers to "a position consistent with the protection of public health, safety and national security."
The Union states, in this regard, that the proposal means that an employee who voluntarily admits to drug use "will not be automatically deemed unsuitable to continue in a sensitive position, which could be either the employee's position of record or another sensitive position." Reply Brief at 9. The Union's explanation is consistent with the proposal's wording and, therefore, we adopt it for purposes of this analysis. Accordingly, based on the plain wording of the two sentences, and the Union's statement, we conclude that the disputed second sentence requires the Agency to make efforts to continue to employ an affected employee in a position which, consistent with the Agency's determination, is consistent with public health, safety, and national security. That is, the proposal would require the Agency to attempt to locate a position for which, in its judgment, the employee is qualified and to which the employee can be assigned without compromise to public health, safety, and national security and to consider the affected employee for placement in that position.
Although the Agency may determine that the affected employee may continue in the sensitive position he or she encumbered prior to removal, the proposal would not require the Agency to do so. Moreover, the proposal would not require the Agency to place an employee returning from a rehabilitation program in a sensitive position. The Union specifically states, in this regard, that the Agency would be free under the proposal to reassign the employee out of his/her previous sensitive position to another sensitive position or nonsensitive position, or to take other appropriate personnel action. Reply Brief at 10. For the reasons discussed in more detail in connection with Proposal 1, therefore, we conclude that the disputed portion of Proposal 2 does not directly interfere with management's rights under section 7106 of the Statute. For the reasons also discussed in connection with Proposal 1, we reject the Agency's arguments regarding the effect of arbitral review on the negotiability of Proposal 2.
We reject also the Agency's contention that the proposal would give arbitrators subject matter jurisdiction over security matters in violation of the Egan decision. In Egan, the Supreme Court held that agencies have exclusive discretion under law to grant or deny security clearances and that the exercise of such discretion is not reviewable by the Merit Systems Protection Board (MSPB). The limitations imposed by Egan apply also to arbitration under a negotiated grievance procedure. United States Information Agency and American Federation of Government Employees, Local 1812, 32 FLRA 739, 745-46 (1988).
Nothing in the plain wording of Proposal 2 addresses the Agency's right to deny or revoke security clearances. Accordingly, the Agency would be free under the proposal to exercise the full range of its discretion regarding security clearances for affected employees. Moreover, if an affected employee's security clearance were revoked, the employee would be ineligible for consideration for assignment to positions requiring such clearances. There is, therefore, no basis on which to conclude that the proposal would grant arbitrators authority to review the substance of Agency decisions regarding security clearances.
Moreover, even if the Agency's decision to deny or revoke a security clearance were indirectly involved in a grievance under Proposal 2, such limited review is not inconsistent with Egan. In fact, as the Court stated in Egan, review of an agency's decision concerning a security clearance properly may extend to, among other things, whether "transfer to a nonsensitive position was feasible." 484 U.S. at 530. In this regard, as noted previously, the Agency is free to determine whether the position in which an employee may be placed under the disputed second sentence of Proposal 2 is "consistent with the protection of public health, safety and national security." Consistent with the Union's statement of intent, the position need not be a sensitive position.
Accordingly, although an agency's decision to grant, deny or revoke a security clearance is not subject to review under a negotiated grievance procedure, the Egan decision does not foreclose examination of other issues not related to the merits of an agency's clearance determination, including the feasibility of an affected employee's reassignment. Therefore, we reject the Agency's argument that the proposal is nonnegotiable because it might subject security issues to arbitration in violation of the Egan holding.
Consequently, we conclude that Proposal 2 does not directly interfere with the Agency's right to determine its internal security practices under section 7106 of the Statute and does not conflict with the Court's decision in Egan. With regard to the proposal's possible interference with other management rights, we note that the proposal enables the Agency to decide whether to fill a position, to establish the qualifications necessary to perform the work of a position, and to determine whether an affected employee qualifies for a position. Compare National Federation of Federal Employees, Local 1437 and United States Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1060-61 (1990) (proposal directly interfered with agency's right to assign employees by requiring selection of nominee to rating and ranking panel without regard to qualifications necessary to serve on panel). Because we find that Proposal 2 does not directly interfere with a management right under section 7106 of the Statute, and is not otherwise nonnegotiable, we conclude that Proposal 2 is negotiable.
The Agency shall upon request, or as otherwise agreed to by the parties, bargain on Proposals 1 and 2.(*)
(If blank, the decision does not have footnotes.)
*/ In finding that Proposals 1 and 2 are negotiable, we make no judgment as to their merits.