30:1083(116)NG - NAGE Local R14-9 and Army, Dugway Proving Ground, Dugway, UT -- 1988 FLRAdec NG

[ v30 p1083 ]
The decision of the Authority follows:

30 FLRA NO. 116
 30 FLRA 1083

27 JAN 1988






Case No. O-NG-1268


I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(D) and (E) of the Federal
Service Labor - Management Relations Statute (the Statute) and
concerns the negotiability of a proposal which requires the
deletion of all references to random sampling from the Agency's
drug testing regulation. The effect of the proposal is to
preclude drug testing of employees on a random basis. We find
that the proposal is outside the duty to bargain because it
directly interferes with management's right to determine its
internal security practices under section 7106(a)(1) of the
Statute and is not an appropriate arrangement within the meaning
of section 7106(b)(3).

II. Background

     On February 10, 1986, the Department of the Army,
promulgated regulations implementing a Department of Defense
Directive concerning civilian employee drug abuse testing.
Interim Change No. Ill to Army Regulation 600-85, Alcohol and
Drug Abuse Prevention and Control Program (Interim Change to AR
600-85). The proposal in dispute in this case was offered by the
Union in connection with bargaining on the implementation
of the Interim Change, which established a drug abuse testing
program for civilian employees in critical jobs.

     In National Federation of Federal Employees, Local 15 and
Department of the Army, U.S. Armament, Munitions and Chemical
Command, Rock Island Illinois, 30  FLRA  No. 115 (1988), we
discussed the provisions of the Interim Change to AR 600-85 and
outlined in detail subsequent events having direct relevance to
drug -testing programs in the Executive Branch of the Federal
Government in general and to the Army drug testing program in
particular. Specifically, we addressed: (1) the issuance of
Executive Order 12564, entitled "Drug - Free Federal Workplace";
(2) the issuance of Federal Personnel Manual Letter 792-16
(November 28, 1986), implementing section 6(a)(1) of the
Executive Order; (3) the publication of the proposed "Scientific
and Technical Guidelines for Drug Testing Programs," by the
Department of Health and Human Services, pursuant to Section 4(d)
of the Executive Order; and (4) the enactment of section 503 of
the Supplemental Appropriations Act of 1987, Pub. L. No. 100-71,
101 Stat. 391, 468 (July 11, 1987). We noted that the Authority
had invited interested parties to file amicus briefs addressing
the negotiability of proposals relating to various aspects of
agency drug testing programs. See U.S. Army Armament, Munitions
and Chemical Command, slip op. at 2-5.

     We also discussed Federal court litigation involving
challenges to the constitutionality of the Army's drug testing
program. Consistent with the decision of the U.S. Court of
Appeals for the District of Columbia Circuit in NFFE v.
Weinberger, 818 F.2d 935 (D.C. Cir. 1987), we concluded that the
only issues properly before us concerned the negotiability of
union proposals, not the legality of drug testing in the Federal
Government. Consequently, to the extent that the
constitutionality of the Army's drug testing program is raised in
this case, we will not consider that issue. Rather, for purposes
of decisions which include this issue, we will presume the
validity of the Executive Order and agency drug testing programs.
See U.S. Army Armament, Munitions and Chemical Command, slip op.
at 5-7.

III. Proposal

     Delete all sampling of civilian personnel in the proposed
Civilian Drug Abuse Testing Program. 

A. Positions of the Parties

     The Agency contends that the proposal conflicts with its
right to determine its internal security practices under section
7106(a)(1) of the statute. It takes the position that the purpose
of drug testing is to assure fitness for retention in critical
jobs and to