31:0021(7)NG - AFGE Local 1759 and Army, HQ, Fort McPherson, GA -- 1988 FLRAdec NG



[ v31 p21 ]
31:0021(7)NG
The decision of the Authority follows:


 31 FLRA NO. 7
  31 FLRA 21

 10 FEB 1988

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1759

                   Union

        and

DEPARTMENT OF THE ARMY, HEADQUARTERS
FORT MCPHERSON, GEORGIA

                   Agency

Case No. 0-NG-1307

DECISION AND ORDER ON NEGOTIABILITY ISSUES

     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 three proposals. 1 These proposals
would: (1) limit the Agency to testing an employee for illegal
drug use only in those circumstances where there is probable
cause to believe that the employee is under the influence of a
controlled substance while on duty; (2) prevent the Agency from
taking certain actions against employees based on any
"unfinalized" drug testing; and (3) require the Agency to pay
employees' drug rehabilitation costs.

     We find that Proposal 1, which restricts the Agency to
testing an employee for illegal drug use only on a showing of
probable cause, is outside the duty to bargain because it
directly interferes with the Agency's right to determine its
internal security practices and is not an appropriate arrangement
under section 7106(b)(3). Proposal 2, which prevents the Agency
from taking certain actions against employees based on
"unfinalized" drug testing, we find to be negotiable
because it requires the Agency to exercise its management rights
in accordance with Executive Order 12564. Finally, we find that
Proposal 3, which requires the Agency to pay employees' drug
rehabilitation costs, is outside the duty to bargain because it
is inconsistent with Federal Personnel Manual (FPM) Supplement
792-2, subchapter S6-3, a Government-wide regulation within the
meaning of section 7117(a)(1) of the Statute.

     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
proposals in dispute in this case were offered by the Union in
connection with bargaining on the implementation of the Interim
Change to AR 600-85, 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. Army 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 FPM 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 also 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 on this issue, we will rely on 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 1

     Section 4. Probable Cause

     In addition to any other criteria contained in this article,
employees will be required to undergo urinalysis only where the
employer establishes that it has probable cause to believe that
an employee in a designated position is under the influence of a
controlled substance while on duty.

     A. Positions of the Parties

     The Agency contends that Proposal 1 is nonnegotiable because
it interferes with management's right under section 7106(a)(1) to
determine its internal security practices. The Agency further
contends that the proposal conflicts with an Agency regulation,
the Interim Change to AR 600-85, for which a compelling need
exists. According to the Agency, Proposal 1 would limit its right
to test randomly or in connection with an accident or
investigation and would permit drug testing of employees based
only on probable cause.

     The Union argues that the Agency's drug testing program, as
set forth in the Interim Change to AR 600-85, is unconstitutional
because random testing is contrary to the Fourth Amendment of the
United States Constitution. The Union further contends that the
proposal constitutes an appropriate arrangement under section
7106(b)(3) of the Statute since it does not excessively interfere
with the exercise of management's rights. According to the Union,
Proposal 1 only would require the Agency to have a legitimate
belief that an employee is using drugs before implementing its
drug testing procedures. Finally, the Union argues that the
Agency does not support its argument that a compelling need
exists for its regulation to bar negotiation on this proposal.


     B. Discussion

     Proposal 1 would permit the Agency to test employees for
drug usage only where the Agency establishes that it has probable
cause to believe that an employee is under the influence of a
controlled substance while on duty. The proposal is to the same
effect as Proposal 1 in Department of the Army, U.S. Army
Armament, Munitions and Chemical Command, 30  FLRA  No. 115
(1988). In that case, we found that the proposal, which provided
for the drug testing of employees only on the basis of probable
cause or reasonable suspicion, was nonnegotiable. We determined
that the proposal directly interfered with the agency's right to
determine its internal security practices under section
7106(a)(1) because it totally precluded random drug testing.
Further, based on our holding in National Association of
Government Employees, Local R7-23 and Department of the Air
Force, Scott Air Force Base, Illinois, 23 FLRA  753, 758-60
(1986), we determined that, by reversing the substantive effect
of the agency's decision to randomly test employees for drug use,
the proposal excessively interfered with the agency's right to
determine its internal security practices under section
7106(a)(1) so as not to constitute an appropriate arrangement
within the meaning of section 7106(b)(3).

     Proposal 1, which also would restrict the Agency to testing
only on a showing of probable cause, is outside the duty to
bargain under section 7106(a)(1) and does not constitute an
appropriate arrangement within the meaning of section 7106(b)(3)
of the Statute for the reasons set forth in U.S. Army Armament,
Munitions and Chemical Command. In view of this disposition, it
is unnecessary for us to decide the Agency's contention that
Proposal 1 is barred from negotiation by an Agency regulation for
which there is a compelling need.

     IV. Proposal 2

     Section 7. Temporary Measures Pending Resolution

     The results of positive urinalysis report: i.e., an apparent
indication of drug usage, which would be considered adverse to
the employee, may result in a management decision to temporarily
detail the employee to other duties, deny the employee access to
classified material, and/or place the employee on administrative
leave. However, the employee shall suffer no reduction in pay,
benefits, or career opportunities as a result of any unifinalized
testing. (Only the underscored portion is in dispute.) 

     A. Positions of the Parties

     The Agency contends that the proposal is inconsistent with
management's right under section 7106(a)(2)(A) to suspend,
remove, reduce in grade or pay, or take other disciplinary
actions against employees. Further, the Agency argues that
because Proposal 2 establishes a precondition--finalized drug
tests--before an employee can be placed in a lower grade position
or a position with reduced "career opportunities," the proposal
conditions the exercise of a management right on the prior
exercise by management of other management rights. Finally, the
Agency contends that the proposal is inconsistent with an Agency
regulation, the Interim Change to AR 600-85, for which a
compelling need exists and that the proposal does not constitute
a "procedure" under section 7106(b)(2) of the Statute.

     The Union disputes the Agency's contentions and, relying on
the decision of the U.S. Court of Appeals for the Tenth Circuit
in United States Air Force v. FLRA,  717 F.2d 1314 (10th Cir.
1983), argues that Proposal 2 is a negotiable procedure because
it does not prevent the Agency from exercising its management
rights. The Union further contends that the proposal is
consistent with Executive Order 12564. Finally, the Union argues
that the proposal is an appropriate arrangement within the
meaning of section 7106(b)(3) of the Statute.

     B. Discussion

     The disputed portion of Proposal 2 would preclude management
from taking any action which would result in a reduction in pay,
benefits, or career opportunities based on a positive result from
"unfinalized" drug testing. We conclude, based on the Union's
submissions, that the Union intends "unfinalized" testing to mean
an initial screening test. Union Response to Agency Statement of
Position at 14-15. As interpreted by the Union, therefore,
Proposal 2 would preclude management from taking the actions
specified based on a positive result from an initial screening
test. Actions resulting in a reduction in pay, benefits, or
career opportunities could only be taken if a subsequent test
confirmed the results of the initial test.

     Section 5(e) of Executive Order 12564 provides, in relevant
part, as follows:

     Preliminary test results may not be used in an
administrative proceeding unless they are confirmed by a second
analysis of the same sample or unless the employee confirms the
accuracy of the initial test by admitting the use of illegal
drugs. 

     We interpret this provision of the Executive Order as
precluding agencies from taking any action against an employee
involving an administrative proceeding--for example, an agency
grievance procedure, the negotiated grievance procedure, or
proceedings before the Merit Systems Protection Board--based
solely on unconfirmed initial positive test results. We also find
that the actions precluded by Proposal 2 include those actions
which would involve a loss of pay and benefits, such as a
demotion, removal, or suspension without pay. These actions would
involve "administrative proceedings." Therefore, we find that the
actions covered by the Union's proposal are covered by section
5(e) of the Executive Order.

     By preventing management from taking these disciplinary
actions against employees based on the results of initial
screening tests, Proposal 2 would require nothing different from
that which is also required by Section 5(e) of the Executive
Order, namely, that an action against an employee must be based
on a positive confirmatory test. Contrary to the Agency's
position, Proposal 2 does not directly interfere with
management's rights under section 7106(a)(2)(A). Rather,
consistent with section 7106(a)(2), the proposal simply requires
that management exercise its rights "in accordance with law." In
our view, Executive Order 12564, issued pursuant to the
President's authority over the Federal civil service, constitutes
law within the meaning of section 7117(a)(1) of the Statute. See
the Preamble to Executive Order 12564 and 5 U.S.C. 3301 and 7301.
See also Old Dominion Branch No. 496, National Association of
Letter Carriers v. Austin, 418 U.S. 264, 273-76 (1974) and
Association for Women in Science v. Califano, 566 F.2d 339 (D.C.
Cir. 1977).

     While the portion of Proposal 2 referring to "career
opportunities" is not clear, the Agency interprets that portion
of the proposal as being synonymous with a "demotion" or
assignment to a lower-graded position. Agency Statement of
Position at 7. The Union does not dispute that interpretation.
Consequently, that portion of Proposal 2 adds no further
substantive restriction to those discussed above and would not,
in and of itself, render the proposal nonnegotiable.

     Finally, the Agency's contention that Proposal 2 conflicts
with an Agency regulation for which a compelling need exists
cannot be sustained. In order to establish that a proposal is
nonnegotiable on the basis of compelling need, an agency must:
(1) identify a specific agency-wide regulation; (2) show that
there is a conflict between its  regulation and the
proposal; and (3) demonstrate that its regulation is supported by
a compelling need with reference to the Authority's standards as
set forth in section 2424.11 of our Regulations. Unless an agency
presents facts and arguments bearing on each of those questions,
we cannot judge the validity of the Agency's contentions. See,
for example, American Federation of Government Employees, AFL -
CIO, Local 3804 and Federal Deposit Insurance Corporation,
Madison Region, 21 FLRA  870 (1986) (Proposal 7).

     The Agency in this case fails to demonstrate in what manner
Proposal 2 conflicts with its regulation. The Agency did not cite
any provision of its regulation which would conflict with the
proposal. Because the Agency has not shown that a conflict exists
between its regulation and this proposal, we do not reach the
question of whether a compelling need exists for the Agency's
regulation to bar negotiation on the proposal. We also note that
the Agency indicates that it does not intend to take an adverse
action against an employee before that employee's preliminary
drug test results are confirmed. Agency Statement of Position at
11.

     For the reasons stated above, we find that Proposal 2 is
within the duty to bargain.

     V. Proposal 3

     Section 9. DoD Civilian Employee Drug Abuse Testing
Program

     The employer shall comply with the Department of Defense
Directive DoD Civilian Employees Drug Abuse Testing Program
relating to the counseling and treatment of employees whose
preliminary tests have been later confirmed as positive. Such
treatment will be provided by the employer at no cost to the
employee. (Only the underscored portion is in dispute.)

     A. Positions of the Parties

     The Agency contends that Proposal 3 is inconsistent with law
and a Government-wide regulation. According to the Agency, there
is no provision in Public Law Nos. 91-616 and 92-255 authorizing
payment by an Agency of the rehabilitation costs of Federal
employees. Further, the Agency asserts that subchapter S6 of the
Federal Personnel Manual Supplement 792-2 specifically requires a
Federal employee to bear the costs of treating his or her own
drinking or drug problem.  Finally, the Agency contends
that the proposal conflicts with an Agency regulation, the
Interim Change to AR 600-85, for which a compelling need
exists.

     According to the Union, this proposal is negotiable because:
(1) the laws cited by the Agency do not preclude the Agency from
paying employee rehabilitation costs, and (2) subchapter S6 of
the FPM is not relevant to this proposal since it relates to
costs of employee rehabilitation at an outside facility, rather
than, as intended by this proposal, as a part of the Agency's
program. Finally, the Union argues that the Agency has the
authority and discretion to provide the services required by this
proposal to employees at no cost because: (1) agencies are
encouraged to provide prevention, treatment, and rehabilitation
services for drug abusers among Federal employees; and (2) 5
U.S.C. 7901(a) specifically authorizes Federal agencies to
promote and maintain the "physical and mental" fitness of their
Federal employees.

     B. Discussion

     The disputed portion of Proposal 3 would require the Agency
to pay the costs of any treatment which is ordered pursuant to
the Department of Defense Directive establishing the Civilian
Employees Drug Abuse Testing Program. Office of Personnel
Management (OPM) regulations and other directives governing drug
abuse testing programs require that agencies provide counseling
and referral services to employees. See PPM, chapter 792 and FPM
Supplement 792-2. See also Executive Order 12564, Sections
2(b)(2) and (4), (4)(a), 5(a) and (c), 6(a)(3), and 7(f)
concerning the establishment and operation of Employee Assistance
Programs; FPM Letter 792-16, Attachment 6, "Model Employee
Assistance Program in Support of a Drug - Free Workplace."
However, while agencies are required to refer employees for
treatment and rehabilitation, they are not required to provide
treatment and rehabilitation services or establish treatment and
rehabilitation programs themselves, nor do the regulations
contemplate that agencies will do so. See Executive Order 12564,
Section 7(f) and FPM Letter, Att. 6, Section 8A and C. See also
57 Comp. Gen. 62, 65-66 (1977).

     We conclude that the undisputed portion of Proposal 3
requires management to refer employees with confirmed positive
test results for treatment and rehabilitation and that the
disputed portion of the proposal requires the Agency, to pay the
costs of the treatment and rehabilitation to which 
employees have been referred. We also conclude that the Union's
statement as to the intent of the proposal, namely, that the
proposal is confined to treatment provided by the Agency, is
based on a misunderstanding of the requirements of Employee
Assistance Programs. Under the regulations governing those
programs, agencies are not required to provide treatment services
to employees.

     By requiring management to pay for the treatment to which it
has referred employees pursuant to the requirements of an
Employee Assistance Program, the disputed portion of Proposal 3
is inconsistent with FPM Supplement 792-2, subchapter S6-3. That
provision states that "(a)n employee is responsible for the costs
of treating his or her drinking or drug problem(.)" Under t