American Federation v. Federal Labor
| Decision Date | 05 December 2006 |
| Docket Number | No. 05-1241.,05-1241. |
| Citation | 470 F.3d 375 |
| Parties | AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Local 2924, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Judith D. Galat argued the cause for petitioner. With her on the briefs were Mark D. Roth and Charles A. Hobbie. Anne M. Wagner entered an appearance.
William E. Persina, Attorney, Federal Labor Relations Authority, argued the cause for respondent. With him on the brief was William R. Tobey, Deputy Solicitor. David M. Smith, Solicitor, entered an appearance.
Before: TATEL and BROWN, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
The American Federation of Government Employees, Local 2924 ("Union") petitions for review of a Federal Labor Relations Authority ("Authority") decision and order dismissing an unfair labor practice ("ulp") complaint filed pursuant to the Federal Service Labor-Management Relations Statute ("Statute"), 5 U.S.C. §§ 7101-7135. In its charge to the Authority, the Union alleged that the Aerospace Maintenance and Regeneration Center at Davis-Monthan Air Force Base ("Davis-Monthan AFB" or "employer") violated § 7116(a)(1) and (5) of the Statute by repudiating certain provisions of the parties' collective bargaining agreements dealing with employee drug testing and rehabilitation. An Administrative Law Judge ("ALJ") agreed that Davis-Monthan AFB repudiated the agreements by terminating employees who were actively engaged in rehabilitation. The employer filed exceptions to the ALJ's decision and the Authority reversed. U.S. Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis-Monthan Air Force Base, Tucson, Ariz., 60 F.L.R.A. No. 166, 2005 WL 1172396 (May 12, 2005) ("Davis-Monthan AFB"), reprinted in Joint Appendix ("J.A.") 10-78.
When a federal agency commits "a clear and patent breach" of a collective bargaining agreement, this will be deemed an unlawful "repudiation" of the contract if it "go[es] to the heart of the parties' agreement." Dep't of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Ill. (Scott AFB), 51 F.L.R.A. 858, 861-63, 1996 WL 81842 (1996). In this case, the Authority held that the employer's actions did not constitute a clear and patent breach of the parties' agreements. In reaching this conclusion, the Authority relied primarily on the testimony of employer witnesses who were at the bargaining table when the contract language was negotiated. The Authority found that, although the employer's interpretation of the agreements was not irrefutable, it was reasonable and fully consistent with the testimony of the employer's witnesses. Davis-Monthan AFB, 60 F.L.R.A. No. 166, slip op. at 19-20. The Authority therefore dismissed the complaint, relying on its Scott AFB rule that, "[i]n those situations where the meaning of a particular agreement term is unclear, acting in accordance with a reasonable interpretation of that term, even if it is not the only reasonable interpretation, does not constitute a clear and patent breach of the terms of the agreement." Id. at 14 (quoting Scott AFB, 51 F.L.R.A. at 862).
The Union now seeks review, contending that the Authority's decision in this case must be reversed, because it fails to follow well-established principles of contractual interpretation. According to the Union, "[i]t is axiomatic that courts must first look to the plain language of a contract provision before considering extrinsic evidence as to meaning." Petitioner's Br. at 15. We agree. The Authority's interpretation of the parties' agreements in this case cannot be squared with the plain language of those agreements. The agreements are indisputably clear in establishing a temporary safe harbor for employees who are properly engaged in rehabilitation and not otherwise unsuitable for employment. The Authority erred in considering extrinsic evidence—self-serving testimony from employer witnesses—which purports to refute the plain terms of the agreements. Where, as here, the language of a collective bargaining agreement can bear only one reasonable interpretation, the Authority may not "create" an ambiguity by crediting extrinsic evidence offered by a party who is seeking to nullify the plain terms of the contract.
We hold that the Authority's finding that Davis-Monthan AFB did not clearly and patently breach the agreements is both arbitrary and capricious and unsupported by substantial evidence. We therefore grant the petition for review, vacate the Authority's order, and remand the case to the Authority to allow it to apply the second prong of its repudiation test.
The Federal Service Labor-Management Relations Statute makes it an unfair labor practice for a federal employer "to interfere with, restrain, or coerce any employee" attempting to exercise his or her rights under the Statute, or "to refuse to consult or negotiate in good faith with a labor organization as required by [the Statute]." 5 U.S.C. § 7116(a)(1), (5). Not every breach of contract is an unfair labor practice, however. Dep't of Def., Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 40 F.L.R.A. 1211, 1218, 1991 WL 148260 (1991). If an employer commits "a clear and patent breach" of a collective bargaining contract that "go[es] to the heart of the parties' agreement," the breach is considered to be an unlawful "repudiation" of the contract under the Statute. Scott AFB, 51 F.L.R.A. at 861-63; see also Cornelius v. Nutt, 472 U.S. 648, 664-65, 105 S.Ct. 2882, 86 L.Ed.2d 515 (1985) . If "the meaning of a particular agreement term is unclear," and an employer acts pursuant to a "reasonable interpretation of that term," the employer's action "does not constitute a clear and patent breach of the terms of the agreement." Scott AFB, 51 F.L.R.A. at 862.
In 1986, President Reagan issued an Executive Order entitled "Drug-Free Federal Workplace," directing agencies to develop drug testing plans "designed to offer drug users a helping hand and, at the same time, demonstrat[e] ... that drugs will not be tolerated in the Federal workplace." Exec. Order No. 12,564, 51 Fed. Reg. 32,889 (Sept. 17, 1986). In 1991, the Union and Davis-Monthan AFB executed an agreement designed to augment the Air Force's plan. Air Force Civilian Drug Testing Agreement Between Davis-Monthan Air Force Base and AFGE Local 2924 ("Local Drug Agreement"), reprinted in J.A. 150-60. Section 9 of the Local Drug Agreement provides:
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.
J.A. 154. Section 12 provides: "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." J.A. 155.
In 1998, the Union and Davis-Monthan AFB entered into a collective bargaining agreement. Labor Management Relations Agreement Between Davis-Monthan AFB, Arizona and Local 2924 American Federation of Government Employees ("CBA"), reprinted in J.A. 99-149. Article 27 of the CBA reads:
Section 1. For the purpose of this Article, alcoholism and drug abuse are defined as illnesses in which the employee's job performance is impaired as a direct consequence of the abuse of alcohol or drugs.
Section 2. The Union and the Employer jointly recognize alcoholism and drug abuse as treatable illnesses; therefore, employees having these illnesses will receive the same careful consideration and offer of assistance that is extended to employees having any other illness or health problem. 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.
Section 3. The ultimate objective of the drug and alcohol abuse program will be to rehabilitate the employee through counseling, referral for medical assistance, and other such means as may be available to aid in the recovery of the employee. Referral for diagnosis and acceptance of treatment should in no way jeopardize an employee's job security or promotional opportunities.
Beginning in 2001, several employees at Davis-Monthan AFB faced dismissal for drug abuse, even while undergoing rehabilitation. For example, in September 2001, Dana Clark, a civilian Motor Vehicle Operator working at Davis-Monthan AFB, tested positive for marijuana during a random drug test. That November, Davis-Monthan AFB issued a notice proposing to terminate Clark, allowing him time to respond to the allegation of drug use. Clark informed his employer that he had immediately and voluntarily enrolled in a rehabilitation program. The employer nonetheless terminated Clark that December, while he was still in rehabilitation.
These incidents caused Union officials to question management's commitment to the drug testing and rehabilitation program. In November 2001, Union officials met with Colonel...
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