Handling the firing of a federal employee can be a complicated affair. There are a myriad of appeal procedures available. From the agency’s perspective, when multiple appeals are filed, it is necessary to win the appeals in all forums or the terminated employee may end up back at work–perhaps with attorney fees and an attitude that will have a negative impact on an office.
Usually, termination appeals go to the Merit Systems Protection Board (MSPB). But, in some cases, other avenues are available as well. Here is one of those cases. (AFGE Local 2924 v. FLRA, USCA, DC Circuit, No. 05-1241 (December 5, 2006) )
Federal agencies implemented a drug testing program under President Reagan in the 1980’s. For employees covered by a labor agreement, there was often an agreement reached between the agency and the union on the implementation of the drug testing program.
One of these organizations with such an agreement was the Davis-Monthan Air Force Base in Tucson, Arizona. The agreement implementing the drug testing program there read, in part:
"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."
The agreement also states that:
“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.”
"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. . . .Failure to successfully complete a rehabilitation program which results in acceptable work performance, after a reasonable period of time, will result in disciplinary procedures."
In 2001, several employees tested positive for drug use and the agency proposed to terminate their employment. One of the employees quickly entered the drug rehabilitation program but he was nonetheless fired while enrolled in the program.
The union argued that the employee had been fired in violation of the union contract. A union official testified that the deciding official stated he had "zero tolerance" for drug use and that “I don’t care about your contract.”
The union filed an unfair labor practice charge with the Federal Labor Relations Authority (FLRA) contending that the agency had clearly violated the agreement with the union.
The FLRA did not see the case as an unfair labor practice. It held that Davis-Monthan AFB did not repudiate the parties’ agreements, because the agreement was “clear and wholly unambiguous,” but, rather, are “subject to more than one interpretation.”
The union filed an appeal of the FLRA’s decision in federal court. There, it got a more favorable reaction to its contentions that the agency was in clear violation of the agreement.
The court found that the agency had agreed with the union to establish a safe harbor for employees with a guarantee that the employer would not fire any employee during the course of rehabilitation. This agreement, said the court, was not ambiguous. The contract give the employee a limited window – the time period between when Davis-Monthan AFB learns of an employee’s drug use and when the employee completes a rehabilitation program – during which an employee cannot be dismissed absent other cause. If an employee drops out of rehabilitation, he gave up the protection given by the agreement.
The court concluded that the FLRA’s decision that focused on bargaining history was not justified. Instead, it castigated the agency. "In an attempt to avoid the plain meaning of the agreements, the Authority started its analysis by focusing on the testimony offered by the employer regarding the parties’ bargaining history. In so doing, the Authority conjured up an ambiguity in unambiguous language by crediting self-serving parol evidence that purported to refute what the contract said. The Authority’s analysis was completely backwards and totally inconsistent with the dictates of…relevant precedent."
Therefore, concluded the Court of Appeals for the DC Circuit, the court set aside the FLRA’s decision as "arbitrary and capricious".
The case is not over yet. The court referred it back to the FLRA with an order to look at the case again and to consider other aspects that were not considered with the initial, ill-considered conclusion that the agreement was not clear.
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