31:0062(11)NG - NAGE Local R14-5 and Pueblo Depot Activity, Pueblo, CO -- 1988 FLRAdec NG



[ v31 p62 ]
31:0062(11)NG
The decision of the Authority follows:


 31 FLRA NO. 11

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES, LOCAL R14-5

              Union

      and

PUEBLO DEPOT ACTIVITY
PUEBLO, COLORADO

              Agency

                                                Case No. O-NG-1286

           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 which relate to the
testing of employees for drug abuse.

     For the reasons which follow, we find that Proposal 1, which
prevents the direct observation of employees providing urine
samples, is outside the duty to bargain under section 7117(a)(1)
of the Statute because it conflicts with Executive Order 12564.
Proposal 2  interferes with management's right to determine its
internal security practices under section 7106(a)(1) by
precluding the Agency from requiring an oral or written statement
of an employee's consent to the civilian drug testing program.
Proposal 3 prevents the screening of employees under the Agency's
drug testing program. It is nonnegotiable because it interferes
with management's right to determine its internal security
practices and is inconsistent with Executive Order 12564.

     II. Background

     On February 10, 1986, the Department of the Army (Agency)
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 Federal Personnel Manual (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. 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, 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

     No  bargaining unit employee will be requested, required or
     compelled to provide a urine sample in the presence of any
     observer or under the surveillance of any observing
     device (overt, covert, mechanical, technical or otherwise). The
     employer will provide and maintain a sanitary restroom facility
     so in the event a bargaining unit employee provides a urine
     sample, such sample will be provided in absolute and total
     privacy.

     A. Positions of the Parties

     The Agency contends that Proposal 1 conflicts with its right
to determine internal security practices under section 7106(a)(1)
of the Statute. The Agency asserts that the direct observation
rule is necessary for the integrity of its drug testing
procedure. The Agency argues that without the rule it cannot be
assured that the urine specimen is the true, uncontaminated, and
unaltered sample of the tested employee and cannot ensure that a
chain of custody is maintained. The Agency also contends that the
proposal conflicts with management's right to assign work under
section 7106(a)(2)(B) because it would preclude the assignment of
an individual to observe an employee providing a test sample.

     The Union states in its petition for review that the
proposal provides that "(t)here will be no  one (employee or
non-employee) physically or otherwise observing, surveilling,
watching any employee provide a urine specimen in the event of
any civilian drug abuse testing." Petition for Review, Exhibit C
at 3. The Union did not file a response to the Agency's statement
of position.

     B. Discussion

     We find that Proposal 1 is nonnegotiable under section
7117(a)(1) of the Statute because it is inconsistent with section
4(c) of Executive Order 12564. Under section 4(c) of the
Executive Order, procedures relating to the collection of urine
samples must provide for employees to give those samples in
private except where management has reason to believe that a
particular employee will alter or substitute the sample. Proposal
1 prevents the observation of employees under any circumstances.
As we determined in U.S. Army Armament, Munitions and Chemical
Command, slip op. at 25-26, 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). By precluding management
from assigning an observer where the Executive Order would permit
one to be assigned, Proposal 1 is inconsistent with section 4(c)
of Executive Order 12564 and outside the duty to bargain under
section 7117(a)(1) of the Statute. See U.S. Army Armament,
Munitions and Chemical Command (Proposal 12).

     Since we have found that Proposal 1 is nonnegotiable because
it is inconsistent with the Executive Order, we need not discuss
the proposal's effect on management's right to assign work under
section 7106(a)(2)(B) of the Statute.

     IV. Proposal 2 

     No  employee will be requested or required, as a condition of
     employment to sign or complete any document or form or provide
     any oral or written statement either agreeing to compliance with
     any civilian drug abuse testing, or waiving said employee's right
     to decline participation in any civilian drug abuse testing.

     A. Positions of the Parties

     The Agency contends that Proposal 2  interferes with
management's right to determine internal security practices. The
Agency argues that the employee's written acknowledgment of drug
testing as a condition of employment is a necessary part of the
overall program which is intended to assist in maintaining
national security and the internal security of the Department of
the Army. The Agency also contends that Proposal 2  conflicts
with management's right to assign, remove, or reduce in grade
employees under section 7106(a)(2)(A) of the Statute. The Agency
states that the proposal prevents employees in critical positions
from being covered by the drug testing program as a condition of
employment, thus eliminating the Agency's ability to reassign,
demote, or remove employees. The Agency finally contends that the
proposal conflicts with: (1) management's right to determine the
methods and means of accomplishing its work under section
7106(b)(1); and (2)  agency regulations for which a compelling
need exists.

     The Union states that Proposal 2  is intended to prevent the
Agency from unilaterally changing working conditions by requiring
as a condition of employment any bargaining unit 
employee to complete or sign any document or form or to cause a
waiver of any employee's right to decline participation in any
drug testing program. The Union also states that the proposal
prevents the Agency from taking any action against an employee
which is based on the employee's decision not to participate in
any phase of the drug testing program. Actions which are
precluded by the proposal include reprisals, discrimination,
discipline, voluntary or involuntary reassignment, demotion, or
separation from Federal employment.

     B. Discussion

     Proposal 2  prevents the Agency from requesting or requiring
as a condition of employment that employees provide an oral or
written statement agreeing to comply with the Agency's drug
testing program or that they waive their rights to decline
participation in the program. Proposal 2  has the same effect as
Proposals 4 and 6 in American Federation of Government Employees,
Local 2185 and Tooele Army Depot, Tooele, Utah, 31  FLRA  No.  10
(1988). Those proposals precluded the use by the agency of DA
Form 5019-R for the purpose of notifying employees that their
cooperation and participation in the drug testing program are
conditions of their employment and securing a statement of
employees' consent to those conditions of employment. We found
that in establishing its drug testing program for employees in
critical positions, the agency required employees in those
positions to give written assurance, as a condition of their
employment, that they will comply with the requirements of the
program. We also found that the agency determined that the
written assurances were necessary to minimize the risk of
employing or hiring individuals in critical positions who would
not agree to comply with the Agency's drug testing program. We
concluded that Proposals 4 and 6 in Tooele Army Depot interfered
with management's right to determine its internal security
practices under section 7106(a)(1) because they precluded the
implementation of a necessary part of the Agency's civilian drug
testing program.

     Proposal 2  in this case also refers to DA Form 5019-R.
Agency Statement of Position at 5. The proposal would prevent the
Agency from obtaining employees' consent to the drug testing
program and assurances of compliance with the procedures which
the Agency has determined are a necessary part of its internal
security program. We find that Proposal 2  is outside the duty to
bargain because, like Proposals 4 and 6 in Tooele Army Depot, it
directly interferes with management's right to determine its
internal security practices under section 7106(a)(1) of the
Statute. 

     In finding Proposal 2  to be outside the duty to bargain
because it conflicts with management's rights under section
7106(a)(1), we find that it is unnecessary to pass on the other
grounds for nonnegotiability alleged by the Agency. Moreover, the
Union did not contend that Proposal 2  is an appropriate
arrangement within the meaning of section 7106(b)(3) of the
Statute and we have not considered that issue. See Tooele Army
Depot, slip op. at 11-13, for a discussion of the applicability
of section 7106(b)(3) to a similar proposal found to excessively
interfere with the exercise of management's rights.

     V. Proposal 3

     No  bargaining unit employee will be screened under any civilian
     Drug Abuse Testing Program.

     A. Positions of the Parties

     The Agency asserts that the Union's explanation of Proposal
3--that it is intended to prevent the testing of employees' urine
samples at the Activity--is inconsistent with the clear language
of the proposal. The Agency contends that the proposal conflicts
with Army Regulation 600-85, paragraph 5-14, which it states is
supported by a compelling need. The Agency also argues that
Proposal 3 conflicts with the Agency's right to determine its
internal security practices under section 7106(a)(1) because the
proposal has the effect of eliminating the entire drug testing
program.

     The Union states only that Proposal 3 is intended to prevent
the testing of employees' urine samples at the Activity.

     B. Discussion

     Proposal 3 would preclude the testing of employees under any
civilian drug testing program. The Union states that the proposal
provides that "(i)n the event of drug abuse testing, the employee
urine sample will not be tested at the Activity." Petition for
Review, Exhibit C at 3. However, the Union's statement of meaning
regarding Proposal 3 is inconsistent with the wording of the
proposal. Where a Union's statement of intent is inconsistent
with the wording of the proposal, we will base our decision on
the interpretation of the proposal which is consistent with the
plain wording. American Federation of Government Employees, AFL -
CIO, Local 1858 and U.S. Army Missile Command, The U.S.
Army Test Measurement, and Diagnostic Equipment Support Group,
The U.S. Army Information Systems Command - Redstone Arsenal
Commissary, 27 FLRA  69, 79 (1987).

     In U.S. Army Armament, Munitions and Chemical Command, we
found that random testing of employees in critical positions was
a part of the Agency's plan to secure or safeguard its physical
property against internal and external risks, to prevent improper
or unauthorized disclosure of information, or to prevent the
disruption of the Agency's operations. We concluded that by
limiting management to testing employees only on the basis of
probable cause, thereby precluding random testing, the proposal
in that case directly interfered with management's right to
determine its internal security practices under section
7106(a)(1) of the Statute.

     Proposal 3 would preclude testing of employees for use of
illegal drugs under any circumstances, including on a random
basis. It is more restrictive than the proposal in U.S. Army
Armament, Munitions and Chemical Command, and would preclude
management from using any form of drug testing as part of its
plan to protect the security of its operations, personnel, and
property. Thus, consistent with U.S. Army Armament, Munitions and
Chemical Command, we find that Proposal 3 directly interferes
with management's right to determine internal security practices
under section 7106(b)(3).

     Moreover, Proposal 3 is inconsistent with Executive Order
12564 because it precludes testing of employees under any
circumstances and not merely on a random basis. The Executive
Order specifically requires the establishment of programs to test
for the use of illegal drugs by employees in sensitive positions.
Executive Order 12564, sections 2  and 3. The proposal prevents
the implementation of the drug testing program required by the
Executive Order. See Executive Order 12564, section 2(b)(5) and
section 3. See also U.S. Army Armament, Munitions and Chemical
Command, slip op. at 9. Therefore, we conclude that Proposal 3 is
also nonnegotiable under section 7117(a)(1) of the Statute
because it is inconsistent with the Executive Order.

     In light of our conclusions, we do not address the Agency's
argument that the proposal is nonnegotiable because it conflicts
with an Agency regulation for which there is a compelling need.
Also, as with Proposal 2  in this case, the Union does not
contend that Proposal 3 is an appropriate arrangement within the
meaning of section 7106(b)(3); therefore, we do not consider that
issue. See U.S. Army Armament, Munitions and Chemical
Command, slip op. at 12-13, for a discussion of the applicability
of section 7106(b)(3) to a similar proposal.

     VI. Order

     The Union's petition for review is dismi