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58 FLRA No. 153
LABORER'S INTERNATIONAL UNION
OF NORTH AMERICA
LOCAL 28
(Union)
and
UNITED STATES
DEPARTMENT OF THE ARMY
ARMY RECRUITING BATTALION
FORT SAM HOUSTON, TEXAS
(Agency)
0-NG-2679
_____
DECISION AND ORDER
ON A NEGOTIABILITY ISSUE
June 30, 2003
_____
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one provision disapproved by the Agency head under § 7114(c) of the Statute. The Agency filed a statement of position. The Union did not file a response.
For the reasons that follow, we find that the provision is contrary to law. Consequently, we dismiss the petition for review.
II. Provision
Actions to reduce in grade or remove Employees for unacceptable performance resulting from alcohol or other drug abuse will normally be postponed for those voluntarily enrolled and satisfactorily progressing in an approved rehabilitation program.
Previously initiated action in which the final decision letter has not been issued will normally be held in abeyance upon the Employee's voluntary enrollment in the rehabilitation program, provided the Employee has not previously refused rehabilitation assistance.
Initiation of adverse/disciplinary action for absenteeism or misconduct related to alcohol or other drug abuse will normally be postponed for those voluntarily enrolled and satisfactorily progressing in the ADAPCP or an approved rehabilitation program unless retention in a duty status might result in damage to government property or personal injury to the Employee or others.
Previously initiated action in which the final decision letter has not been issued will normally be held in abeyance upon the Employee's enrollment in the ADAPCP or approved rehabilitation program, provided the Employee has not previously refused rehabilitation assistance.
A. Positions of the Parties
1. Agency
As an initial matter, the Agency disputes the finding in the Post-Petition Conference Record (Conference Record) that the Union and local Agency representative agreed to the meaning of the provision. Specifically, the Agency disputes the statement in the Conference Record that both parties agreed that the use of the term "normally" in the provision acknowledges that management retains the right at all times under the provision to discipline employees. See Statement of Position (SOP) at 5. The Agency asserts that only the Union had this understanding, and that, to the contrary, the local Agency representative understood the provision to preclude disciplinary actions in any instance in which the employee satisfied the provision's criteria. See id. at 6. The Agency states that where the parties differ over the interpretation of a provision, as opposed to a proposal, the Authority should "find against the drafting party . . . ." Id. at 7.
With respect to legal arguments, the Agency contends that the provision is contrary to law on three grounds. First, the Agency contends that the provision affects management's right to discipline under § 7106(a)(2)(A) of the Statute because it delays or postpones disciplinary action when an employee elects to enroll in a rehabilitation program and continues in that program. See id. at 11, 13-14. In support, the Agency cites several decisions, including International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch, 32 FLRA 269, 275-76 (1988) (Panama Canal Pilots Branch). The Agency asserts that the term "normally" does not preserve management's discretion to adhere to its right to discipline. Id. at 14. [ v58 p606 ]
Second, the Agency contends that the provision is inconsistent with Executive Order No. 12564 because it does not address whether a drug-addicted employee who experiences relapse after the employee has voluntarily admitted using illegal drugs and sought assistance can escape discipline.
Third, the Agency contends that the provision is contrary to 31 U.S.C. § 1349, which mandates disciplinary action for the misuse of a Government vehicle by an employee. The Agency argues that the provision would preclude the Agency from disciplining an employee for the misuse of a Government vehicle when an employee enters a rehabilitation program.
2. Union
The Union did not file a response to the Agency's statement of position and, therefore, the Union does not dispute the Agency's assertions made therein. Rather, in its petition for review, the Union argues that the provision is not intended to excessively interfere with management's rights. See Petition at 3. According to the Union, the provision is intended to be a one-time opportunity for employees who volunteer for the rehabilitation program. See id. The Union further states that, to avoid discipline after enrolling in the rehabilitation program, an employee must satisfactorily complete the program and remain drug and/or alcohol free.
B. Analysis and Conclusions
1. Meaning of the Provision
Under the provision, the Agency would "normally" not be able to discipline an employee for acts which result from the use of illegal drugs or alcohol if the employee voluntarily enters and successfully completes a rehabilitation program. The provision permits the Agency to initiate adverse or disciplinary actions in cases of absenteeism or misconduct where retention of an employee in a duty status might lead to injury to the employee or other persons or damage to government property. The provision would also require that, where action against an employee had been initiated, the Agency would "normally" hold in abeyance a final decision upon the employee's voluntary enrollment in a rehabilitation program, provided the employee had not previously refused rehabilitation assistance.
Although the Agency disputes the meaning of the provision as set forth in the Conference Record, it is apparent that the parties agreed that, under the provision, the Agency would normally not be able to discipline employees who complied with the provision's requirements. The further explanation in the Conference Record that "management retains the right at all times under the provision to discipline employees[,]" which the Agency attributes solely to the Union, involves a legal analysis relating to the exercise of management's right to discipline employees under § 7106(a)(2)(A) of the Statute. That matter is addressed below.
2. The Provision Affects Management's Right to Discipline
Management's right to discipline employees under § 7106(a)(2)(A) of the Statute extends alike to performance-related and nonperformance-related conduct. See AFGE, Local 1709, 56 FLRA 549, 552 (2000). Proposals that preclude management from taking disciplinary action against employees for a particular offense affect management's right to discipline under § 7106(a)(2)(A) of the Statute. See, e.g., AFGE, Local 1692, 40 FLRA 868, 873 (1991); Panama Canal Pilots Branch, 32 FLRA at 275.
Under the provision, the Agency would normally not be able to discipline an employee for acts which result from the use of illegal drugs or alcohol if the employee voluntarily enters and successfully completes a rehabilitation program. That is, the Agency would be precluded not only from imposing disciplinary action for the use or possession of illegal drugs, but also for conduct related to the use or possession of illegal drugs or alcohol. We conclude, therefore, that the provision affects management's right to discipline under § 7106(a)(2)(A) of the Statute. See, e.g., Panama Canal Pilots Branch, 32 FLRA at 275-76 (portion of a proposal which precluded disciplinary action against employees enrolled in rehabilitation programs found nonnegotiable because it affects management's right to discipline).
The fact that the provision uses the term "normally" does not alter the fact that the provision affects the right to discipline. Rather than preserving management's right to discipline employees, the term "normally" restricts the exercise of that right by establishing a criterion limiting the range of circumstances in which management can choose to discipline an employee. Therefore, the term "normally" constitutes a substantive limitation on the Agency's right to discipline employees because it establishes a substantive standard governing management's decision to discipline employees. See, e.g., Nat'l Ass'n of Gov't Employees, Local R5-82, 43 FLRA 25, 38 (1991) (provision's use of the term "normally" constitutes a substantive limitation on the agency's right to assign employees because it establishes [ v58 p607 ] a substantive standard governing management's decision to assign employees to details).
In sum, we conclude that the provision affects management's right to discipline. The Union's sole argument with respect to the provision's consistency with law is that the provision is not intended to excessively interfere with management's right to discipline. However, the Union provides no further elaboration to support its assertion. Even if we were to construe this assertion as a claim that the provision is an appropriate arrangement under § 7106(b)(3) of the Statute, we find that the claim is completely unsupported and we therefore reject it as a bare assertion. See, e.g., AFSCME Local 2910, 53 FLRA 1334, 1342 (1998) (rejecting a union's bare assertion that a proposal was an appropriate arrangement under § 7106(b)(3)). The Union does not otherwise claim that the provision is negotiable under § 7106(b) of the Statute. Accordingly, we find that the provision is contrary to law and dismiss the petition for review.
III. Order [n1]
The petition for review is dismissed
Footnote # 1 for 58 FLRA No. 153 - Authority's Decision
In light of this decision, we have not addressed the Agency's remaining arguments that the provision is contrary to Executive Order No. 12564 and 31 U.S.C. § 1349.