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HROI Drug and Alcohol Off-Duty Offenses

The agency is now using off-duty alcohol related offense as a basis to discipline employees. This Know Your Rights article is intended to inform bargaining unit employees concerning the agency’s policy and to educate the BUEs on their rights in challenging the disciplinary action stemming from this policy.

On July 1, 2008, the Human Resources Operating Instructions (HROI) for Drug and Alcohol became effective. This document supplements the DOT Order 3910.1C in providing agency personnel specific procedures and instructions pertinent to the department’s rules and regulations concerning Drug and Alcohol. More to the point, this document specifically instructs agency personnel (managers, HR/LR) to discipline employees occupying Testing Designated Position (TDP) when he/she is involved in an off-duty alcohol-related offense, such as DWI and public intoxication charge. This is one of the more strikingly draconian procedures established in the HROI.

Through the HROI, the agency is now strictly enforcing disciplining TDP employees involved in an off-duty alcohol related event by issuing a Written Admonishment for the first occurrence and a termination action for two or more off-duty events. The HROI does not distinguish a time period between the first and the second occurrences. In recent weeks, NATCA has seen a sharp increase in disciplinary cases involving off-duty alcohol related incidents.

As an example, a controller was arrested for DWI in March 2008. The employee immediately reported the event to his manager after the arrest. Subsequently, the controller was removed from ATC duties and was evaluated for substance abuse by a physician referral made by the Regional Flight Surgeon, which resulted in a negative alcohol abuse diagnosis. After this review process, the employee resumed normal ATC duties. In June 2009, however, the employee was issued a Written Admonishment for the March 2008 DWI pursuant to the HROI paragraph III(h)(2)(a) as the event was his first off-duty event. The admonishment letter also reminded the employee that he would be subject to removal if he engages in a second off-duty alcohol related offense, setting the stage for future termination action.

Another example is a controller who was arrested for DWI in January 2009, which was reported immediately, and concurrently the employee self-referred to the EAP for treatment. The FAA launched an investigation over the matter. During the course of the investigation, it was revealed that the employee was arrested for public intoxication in 2007; no breathalyzer test was performed. The employee paid a fine for the misdemeanor. The agency is now claiming the January DWI was his second off-duty offense, which triggered the agency to issue a proposed removal action against the employee pursuant to paragraph III(h)(2)(b) of the HROI.

In both of these cases, the agency is attempting to enforce a document that was not in effect at the time of the incidents of which the agency now claims the employees had violated.

NATCA will challenge, through its grievance procedure, the disciplinary actions taken against TDP employees for off-duty alcohol-related misconduct. NATCA encourages employees to work closely with their Facility Representative and/or their Regional Vice President to file a grievance if they are in this situation, and they will have the full assistance of the National Office Labor Relations Staff in processing the grievance.

Article 10, Section 1 of the Parties’ CBA covers disciplinary actions which also includes oral and written admonishments. Article 10, Section 3 requires the agency to take disciplinary actions against employees only for such cause as will promote the efficiency of the service. It further requires the agency’s action be supported by a preponderance of the evidence.

As with all disciplinary cases involving off-duty misconduct, the agency must establish a “nexus” between the off-duty offense and the employee’s position with the agency. As with this matter, the agency must demonstrate that the off-duty alcohol related offense has a bearing to the employee’s duties with the agency.

The term “nexus” refers to the connection that must exist between conduct, or behavior, forming the basis for an adverse action and the discernible or foreseeable negative impact the conduct or behavior has on an agency’s operations. Nexus comes into play twice in most adverse actions. First, establishing nexus is necessary to prove that the action promotes the efficiency of the service. Second, nexus is often a factor in determining the appropriate penalty for the conduct or behavior.

The Merit Systems Protection Board’s (MSPB) case law establishes that an agency can show a nexus linking an employee’s off-duty misconduct with the efficiency of the service through: 1) a rebuttable presumption of nexus that arises in certain egregious circumstances based on the nature and gravity of the misconduct; 2) a showing that the misconduct affects the employee’s or his coworkers’ job performance, or management’s trust and confidence in the employee’s job performance; or 3) a showing that the misconduct interfered with or adversely affected the agency’s mission.

The Board has also decided that a nexus cannot be presumed based only on the fact that an employee was arrested for an off-duty offense.

While NATCA in the past has seen cases where a second DWI formed the basis of a termination action, those cases, however, involved a medically based decision due the employee’s inability to meet the FAA’s ATC medical qualification due to a clinical diagnosis of alcohol abuse.

What make the recent cases more alarming is that the agency has moved away from evaluating each case on medical grounds to a punitive stance of placing employees on a disciplinary track. The agency is attempting to link the off-duty misconduct as a basis to force employees into a Last Chance Agreement, which is a substance abuse medical treatment in lieu of termination based solely on a second off-duty alcohol-related offense regardless of whether the off-duty misconduct requires a medical treatment of rehabilitation.

For this reason, NATCA is advising all employees who may be involved in this situation to work closely with their Facility Representative and his/her Regional Vice President in processing the grievance.