Does off-duty behavior affect work agreements?

Is drinking while off duty a punishable offense? That issue recently was tackled by the Merit Systems Protection Board (MSPB). On Sept. 27 1996 the Navy removed an aircraft sheet-metal mechanic from his job because of his alleged breach of a last-chance agreement (LCA) signed five months earlier. This LCA said in part that the sheet-metal worker immediately would be removed from his job if he displayed "any further alcohol-related misconduct or performance problems or alcohol use." The LCA also called for the waiver of the worker's appeal rights. But the file did not explain exactly what the sheet-metal worker had done previously while under the influence of alcohol.

The alleged violations of the LCA arose after the employee's off-duty arrest for driving under the influence (DUI) Aug. 25 1996 according to the MSPB case record. He failed to report to work the next day and requested sick leave while he was in jail according to the case record.

Based on these events the Navy decided to throw the book at the employee charging him with breaching the LCA by using alcohol being absent without leave not requesting leave within 30 minutes after the start of his shift and misrepresenting his status by requesting sick leave.

The Option of a Hearing

The employee appealed the charges to a regional office of the MSPB. That office informed the sheet-metal worker that he could receive a hearing if he could present facts which if confirmed would show that he complied with the LCA the agency breached the LCA or that the LCA was unlawful involuntary or the result of fraud or mutual mistake.

In response the employee contended that he was forced against his will to enter into the LCA and that the Navy invoked the removal provision of the agreement in bad faith.

He also said he did not break the LCA because his leave Aug. 26 was approved and because he believed the LCA did not cover off-duty alcohol use. The Navy submitted a copy of the parties' LCA and moved to dismiss the appeal.The administrative law judge who handled this case for the MSPB regional office rejected the worker's arguments.

The worker appealed to the full MSPB in Washington D.C. which cited a prior decision that an employee can be disciplined for an off-duty automobile accident that resulted in an arrest for DUI because such an arrest has a bearing on "the efficiency of the service."

But the board also said a settlement agreement is a contract and its interpretation is a question of law. If a term is ambiguous "evidence to show the parties' intent is admissible " it said.

The MSPB found that the LCA did not define "alcohol-related misconduct." It said the term could mean misconduct occurring only while the employee was on duty or reporting to duty or it could mean all alcohol-related misconduct including an off-duty arrest.

The questions in this case are: What was the Navy's intent when it entered into this agreement? Was the Navy concerned with the employee's behavior while off duty?

The MSPB decided to rely on what it termed "extrinsic evidence" to determine how the parties define "alcohol-related misconduct." But the board said it could find nothing in the LCA or in the parties' written submissions to the judge that would resolve the ambiguity. The only clue to the LCA's intent was the employee's allegation that he thought the agreement's provisions were limited to on-duty behavior.

I believe that may have been a desperate attempt by the worker to keep his job. Because the judge relied on the employee's off-duty misconduct to find that he breached the LCA the MSPB sent the case back to its regional office so the parties could submit extrinsic evidence of their intent. The board ordered the region to engage in additional fact-finding and to hear testimony if necessary.

If the judge finds that the employee did not breach the agreement's alcohol-related misconduct provision she should consider the other allegations of breach of the LCA the board ruled.

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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