United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2006 Decided December 5, 2006
No. 05-1241
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2924,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of an Order of the
Federal Labor Relations Authority
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.
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EDWARDS, Senior Circuit Judge: 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 (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). 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
3
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.
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I. BACKGROUND
A. Statutory Context
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). 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 (1985) (“[I]f the violation constitutes ‘a clear and patent
breach of the terms of the agreement,’ the union may file an
unfair labor practice charge . . . .” (quoting Iowa Nat’l Guard &
Nat’l Guard Bureau, 8 F.L.R.A. 500, 510 (1982))). 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.
B. Factual Background
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
5
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
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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.
J.A. 134.
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
Hendricks, the employer’s third-step grievance officer, to protest
the termination of employees for drug abuse. See J.A. 322-24.
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Jean Southam, a national Union representative at Davis-
Monthan AFB, testified that, when asked why an employee
would be fired while in rehabilitation, Colonel Hendricks said,
“My policy is zero tolerance.” J.A. 323. When he was
reminded that the parties’ collective bargaining agreements
afforded protection to employees, Colonel Hendricks reportedly
said, “I don’t care about your contract.” J.A. 323.
C. Proceedings Below
The Union filed a charge with the Authority, claiming that
Davis-Monthan AFB repudiated Article 27 of the CBA by
removing employees while they were properly enrolled in
rehabilitation programs. Based on this charge, General Counsel
for the Authority issued a complaint alleging that Davis-
Monthan AFB had committed an ulp in violation of § 7116(a)(1)
and (5), by repudiating §§ 9 and 12 of the Local Drug
Agreement and Article 27 of the CBA. An ALJ reviewed the
two agreements and heard testimony, including descriptions of
bargaining history given by two Davis-Monthan AFB managers
who participated in negotiations on behalf of the employer.
These two managers testified that the parties intended only to
require that supervisors grant employees leave to participate in
rehabilitation during working hours, not to limit management’s
range of disciplinary options. In other words, notwithstanding
the clear language in § 9 – “[t]he Employer will retain
employees in a duty or approved leave status while undergoing
rehabilitation” – and Article 27 – “[r]eferral for diagnosis and
acceptance of treatment should in no way jeopardize an
employee’s job security or promotional opportunities” – these
employer witnesses claimed that employees could be fired while
in rehabilitation even if otherwise suitable to be retained in duty
or leave status.
The ALJ issued a decision on September 26, 2003, finding
that “[r]ehabilitation is a key consideration in the Executive
Order, the [Air Force’s plan], the Local Drug Agreement and
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[the CBA].” Davis-Monthan AFB, 60 F.L.R.A. No. 166, slip op.
at 24. He found the testimony on bargaining history irrelevant
in light of § 9 of the Local Drug Agreement, which he found to
be “clear and wholly unambiguous.” Id. at 25-26. The ALJ
construed § 9 to mean that “[c]learly, if in rehabilitation, the
Employer shall not remove, or attempt to remove, the
employee.” Id. at 27. The ALJ concluded that Davis-Monthan
AFB repudiated both the Local Drug Agreement and the CBA
through “clear and intentional” violations of §§ 9 and 12 of the
former and Article 27 of the latter. Id. at 30-31.
Davis-Monthan AFB filed exceptions with the Authority
seeking review of the ALJ’s decision. On review, the Authority
found “no evidence in the record that [Davis-Monthan AFB]
failed to provide the employees access to a drug treatment and
rehabilitation program” in violation of § 12 of the Local Drug
Agreement. Id. at 20. The Authority also held that Davis-
Monthan AFB did not repudiate the parties’ agreements,
because § 9 and Article 27 are not “clear and wholly
unambiguous,” but, rather, are “subject to more than one
interpretation.” Id. at 15. The Authority found the ALJ’s
interpretation of § 9 reasonable, but concluded that Davis-
Monthan AFB’s interpretation – that the provision is “silent with
regard to discipline and concerns only the leave status of
employees who attend rehabilitation during duty hours,” id. at
18 – is also “fully consistent with the testimony of the only
witnesses who participated in the negotiations,” id. at 16. After
deciding “that [Davis-Monthan AFB] acted under a reasonable
interpretation of § 9(a) and Article 27 and, as such, did not
commit a clear and patent breach of those provisions,” id. at 15,
the Authority dismissed the complaint. Member Pope filed a
strong dissent, claiming that Davis-Monthan AFB’s
“interpretation is far off the mark” and “unbelievable, in every
sense of the word.” Id. at 28-29. She added, “Bargaining
history testimony asserting an unreasonable interpretation does
not make the interpretation any more reasonable.” Id. at 29 n.1.
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The Union now petitions for review of the Authority’s
order, claiming that the Authority acted arbitrarily and
capriciously by dismissing the complaint based on bargaining
history testimony that directly contradicts the plain language of
the parties’ agreements.
II. ANALYSIS
A. Standard of Review
We will set aside an order of the Authority if it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” or if it is “unsupported by substantial
evidence.” 5 U.S.C. § 706(2)(A), (E); see 5 U.S.C. § 7123(c)
(“Review of the Authority’s order shall be on the record in
accordance with section 706 of this title.”). In order to
determine whether the Authority acted arbitrarily and
capriciously, “we look to whether the Authority has offered a
rational explanation for its decision [and] whether its decision is
based on consideration of the relevant factors . . . .” Nat’l Ass’n
of Gov’t Employees, Local R5-136 v. FLRA (NAGE, Local R5-
136), 363 F.3d 468, 474 (D.C. Cir. 2004) (citing Motor Vehicle
Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). “We will uphold the Authority’s decision ‘if, but only
if, we can discern a reasoned path from the facts and
considerations before the [agency] to the decision it reached.’”
Nat’l Treasury Employees Union v. FLRA (NTEU), 466 F.3d
1079, 1081 (D.C. Cir. 2006) (quoting U.S. Info. Agency v.
FLRA, 960 F.2d 165, 169 (D.C. Cir. 1992)). To be upheld, the
decision “must come with ‘[such] relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’” Am. Fed’n of State, County & Mun. Employees
Capital Area Council 26 v. FLRA, 395 F.3d 443, 447 (D.C. Cir.
2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). Certainly, if the result reached is “illogical on its own
terms,” the Authority’s order is arbitrary and capricious. IRS v.
FLRA, 963 F.2d 429, 439 (D.C. Cir. 1992).
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B. The Issues on Review
The Authority’s determination that the employer did not
“fail[] to provide the employees access to a drug treatment and
rehabilitation program” as required by § 12 of the Local Drug
Agreement is supported by substantial evidence and it is not
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law. We therefore deny the petition for review
insofar as it challenges this decision.
Davis-Monthan AFB argued before the Authority that “the
[disputed contract] provisions as [interpreted by the ALJ] are
unenforceable because they are contrary to management’s right
to discipline under [the Statute].” Davis-Monthan AFB, 60
F.L.R.A. No. 166, slip op. at 10. The Authority did not address
this contention below, and it has not raised the argument in its
briefs to this court. Therefore, this question is not before the
court on review. The principal issue here is whether the
Authority erred in its construction of § 9 of the Local Drug
Agreement and Article 27 of the CBA.
C. The Meaning of the Parties’ Agreements
Interpretation of a contract, like statutory and treaty
interpretation, must begin with the plain meaning of the
language. See, e.g., NAGE, Local R5-136, 363 F.3d at 476
(examining the “express language” of a collective bargaining
agreement); see also Hughes Aircraft Co. v. Jacobson, 525 U.S.
432, 438 (1999) (“[I]n any case of statutory construction, our
analysis begins with the language of the statute. And where the
statutory language provides a clear answer, it ends there as
well.”) (internal citation and quotation marks omitted); Iceland
S.S. Co.-Eimskip v. U.S. Dep’t of Army, 201 F.3d 451, 458 (D.C.
Cir. 2000) (“When interpreting a treaty . . . we . . . ‘must, of
course, begin with the language of the Treaty itself.’” (quoting
Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180
11
(1982))). In analyzing the alleged ulp in this case, the Authority
seemed not to comprehend the principle of “plain meaning.”
The Authority first noted that “it is not always necessary to
determine the precise meaning of [a contract] provision in order
to analyze an allegation of repudiation.” Davis-Monthan AFB,
60 F.L.R.A. No. 166, slip op. at 13-14 (citing Scott AFB, 51
F.L.R.A. at 862 n.4). This proposition is drawn from Scott AFB,
where the FLRA held 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.” 51
F.L.R.A. at 862-63. This principle has no bearing on this case,
however, because it applies only in situations when “the
meaning of a particular agreement term is unclear.” The
disputed contract language in this case – “[t]he Employer will
retain employees in a duty or approved leave status while
undergoing rehabilitation” and “treatment should in no way
jeopardize an employee’s job security” – is not unclear. In
concluding otherwise, the Authority followed an analytical path
which suggests that, in determining whether the breach of a
collective bargaining agreement is “clear and patent,” it need not
determine whether the agreement has a plain meaning. Needless
to say, this course of analysis is completely misguided and far
afield from the dictates of Scott AFB.
Our review of the Local Drug Agreement and CBA reveals
mutually reinforcing terms establishing two general principles
applicable to employee drug use and addiction. First, Article 27,
§ 2 defines drug abuse as an illness: “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.” Second, both agreements guarantee
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employees help enrolling in rehabilitation and treatment
programs. Article 27, § 3 provides: “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.” Section 9 states that employees who test
positive will be referred “to Social Actions for evaluation and
appropriate referral for counseling and/or rehabilitation.” And
§ 12 provides: “[T]he Employer will make reasonable
accommodations for the employee’s drug problem by providing
him/her access to a drug treatment and rehabilitation program.”
In service of these principles, the agreements establish a
safe harbor for employees, guaranteeing that the employer will
not dismiss any employee during the course of rehabilitation.
Section 9(a) provides that “[t]he Employer will retain employees
in a duty or approved leave status while undergoing
rehabilitation,” and Article 27 reads, “Referral for diagnosis and
acceptance of treatment should in no way jeopardize an
employee’s job security or promotional opportunities.” These
provisions unambiguously create 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 immediately forfeits the protection of § 9 and
Article 27.
Not all employees who suffer from drug abuse gain the
protection of the safe harbor. First, § 9 clarifies that the
agreements do not protect employees who refuse rehabilitation:
“Employees will be informed of the consequences should they
refuse counseling or rehabilitation.” Article 27 likewise states:
“Failure to successfully complete a rehabilitation program which
results in acceptable work performance, after a reasonable
period of time, will result in disciplinary procedures.” Second,
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the agreements do not shelter employees who, apart from their
drug problem, are insubordinate, have unacceptable work
performance, or otherwise engage in misconduct warranting
dismissal. And, finally, the agreements in no way restrict the
employer’s right to take appropriate action short of removal,
such as reassignment of an employee to a less sensitive position.
At oral argument, in a vain attempt to refute the plain
meaning of § 9 and Article 27, counsel for the Authority argued
that if the parties had meant to establish a safe harbor they
would have agreed to different contractual language. According
to counsel, the following language would have been a model of
clarity:
[T]he agency employer cannot terminate an employee for
illegal drug use until rehabilitation is concluded.
See Recording of Oral Argument at 15:31. This language
mirrors what the parties’ agreements say. Section 9 provides:
The Employer will retain employees in a duty or approved
leave status while undergoing rehabilitation.
And Article 27, § 3 states:
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.
The language suggested by the Authority’s counsel says, “the
employer cannot terminate.” The parties’ agreement says, “[t]he
Employer will retain employees,” and “[r]eferral for diagnosis
and acceptance of treatment should in no way jeopardize an
employee’s job security or promotional opportunities.” If the
employer must “retain employees” and rehabilitation can “in no
14
way jeopardize an employee’s job security,” then an employee
who is in rehabilitation obviously is protected from termination.
No doubt, the parties could have been even clearer in expressing
their intention if they had added, “and we really mean what we
say.” But even without such a declaration, the agreements are
unambiguously plain in their meaning. Therefore, the Authority
was obliged to construe the parties’ contracts as written.
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 Scott AFB and other relevant precedent.
An agreement is only “ambiguous if it[s language] is
reasonably susceptible of different constructions or
interpretations, not simply because the parties later disagree on
its meaning.” Ameren Servs. Co. v. FERC, 330 F.3d 494, 499
(D.C. Cir. 2003) (internal citation and quotation marks omitted).
Resort to parol evidence may only be had where the language of
an agreement is ambiguous on its face. NTEU, 466 F.3d at 1081
(“[W]here the terms of a bargaining agreement are ambiguous,
we look to evidence of the parties’ contemporaneous
understanding.”); Wash. Metro. Area Transit Auth. v.
Georgetown Univ., 347 F.3d 941, 946 (D.C. Cir. 2003) (“If the
. . . language is unambiguous, the court need only apply the
meaning of the words. If the language is ambiguous, the court
must determine the parties’ intent . . . in light of the
circumstances surrounding [the agreement’s] execution.”);
Ameren, 330 F.3d at 498 (“[W]e first consider de novo whether
the . . . agreement unambiguously addresses the matter at issue.
If so, the language of the agreement controls for we must give
effect to the unambiguously expressed intent of the parties.”)
15
(internal citation and quotation marks omitted). In short, where
the language of an agreement can bear only one interpretation,
contradictory extrinsic evidence must be ignored. Norfolk S. Ry.
Co. v. Kirby, 543 U.S. 14, 31-32 (2004) (“[W]here the words of
a law, treaty, or contract, have a plain and obvious meaning, all
construction, in hostility with such meaning, is excluded.”
(quoting Green v. Biddle, 21 U.S. (8 Wheat.) 1, 89-90 (1823)));
Ameren, 330 F.3d at 498 n.7 (“The [agency] may consider
extrinsic evidence only if the . . . agreement is ambiguous.”).
The Authority plainly erred in considering parol evidence that
directly contradicts the unambiguous meaning of the contractual
terms.
The agreements admit of no ambiguity. Section 9 and
Article 27 create a safe harbor that protects a narrow class of
employees for a limited period of time so that they may focus on
treatment and rehabilitation. The Authority’s decision defies
precedent and commonsense, and it reaches a conclusion that is
“so implausible that it [cannot] be ascribed to a difference in
view or the product of agency expertise.” State Farm, 463 U.S.
at 43. Because the Authority’s decision epitomizes arbitrary and
capricious action, we grant the petition for review.
III. CONCLUSION
Since the “Authority’s decision to dismiss the . . . complaint
is premised on an entirely untenable interpretation of the parties’
[agreements],” we set “aside the Authority’s dismissal of the .
. . complaint as arbitrary and capricious.” NAGE, Local R5-136,
363 F.3d at 471, 475. However, two elements must be analyzed
in repudiation cases: “(1) the nature and scope of the alleged
breach . . . (i.e., was the breach clear and patent?); and (2) the
nature of the agreement provision allegedly breached (i.e., did
the provision go to the heart of the parties’ agreement?).” Scott
AFB, 51 F.L.R.A. at 862. The Authority failed to ask the second
question, because it erroneously concluded that the employer did
not clearly and patently breach the agreements. We therefore
16
remand the case to the Authority and instruct it to give effect to
the plain meaning of the agreements and apply the second prong
of its repudiation test in order to determine whether Davis-
Monthan AFB committed an unfair labor practice.