[ v31 p101 ]
31:0101(16)NG
The decision of the Authority follows:
31 FLRA NO. 16
31 FLRA 101
16 FEB 1988
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1437
Union
and
U.S. ARMY ARMAMENT RESEARCH,
DEVELOPMENT AND ENGINEERING
CENTER, DOVER, NEW JERSEY
Agency
Case No. 0-NG-1318
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 six proposals. 1 The disputed
proposals concern the testing of certain selected categories of
civilian employees for drug abuse.
For the reasons set forth below, we find that Proposal 4,
which provides that no employee will be subjected to urinalysis
on a punitive basis, is negotiable because it does no more than
require the Agency to exercise its rights in accordance with law.
We find Proposal 7, which provides for drug testing only on the
basis of probable cause, to be outside the duty to bargain under
section 7106(a)(1) of the Statute because it directly interferes
with management's right to determine its internal security
practices and is not a negotiable appropriate arrangement under
section 7106(b)(3). We find Proposals 9 and 11, both of which
require that additional field tests be administered before an
employee is deemed to have a positive field test, to be
outside the duty to bargain under section 7117(a)(1) because they
are inconsistent with the requirements of Executive Order 12564.
We find Proposal 10, which requires retention of a portion of the
urine sample for later testing if requested by the employee, to
be a negotiable procedure under section 7106(b)(2) of the
Statute. Finally, as to Proposal 13, which provides for no direct
observation of employees who are providing test samples, except
in specified circumstances, we find that the petition for review
should be dismissed because the Union did not provide the
information necessary for the Authority to make a determination
as to the negotiability of the proposal.
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 A-R
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 792-6 (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 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 4
4. Under no circumstances will an employee be subjected to
urinalysis as a punitive measure.
A. Positions of the Parties
The Agency contends that Proposal 4 violates management's
right to determine its internal security practices under section
7106(a)(1) of the Statute by allowing an arbitrator to substitute
his or her judgment for that of management in determining which
employees are selected for drug testing. The Agency argues that
under the proposal, employees whose test results were positive
could challenge the test on the grounds that they were selected
for punitive reasons. The Agency contends that in reviewing the
selection of an employee to determine whether that selection was
punitive, an arbitrator would be required to substitute his or
her judgment for that of management. The Agency also argues that
this proposal excessively interferes with management's right to
determine its internal security practices by providing an
arbitrator with the opportunity to abrogate an essential
component of its internal security plan by nullifying the
positive test of an employee. Finally, the Agency contends
generally with respect to all of the proposals in this case that
the Union has not established either the adverse effects of the
Interim Change to AR 600-85 on bargaining unit employees or how
its proposals address or compensate for the anticipated adverse
effects of the Interim Change to AR 600-85.
The Union contends that Proposal 4 is intended to prevent
misuse of the testing procedure and that it does not interfere
with drug testing conducted in accordance with the Agency's
regulations. The Union argues that its proposal is
consistent with Department of Defense (DoD) Directive, Circular
1010.9 which provides that employees in critical jobs may be
tested "(p)eriodically after appointment or selection on the
basis of neutral criteria" (emphasis added). The Union argues
that the proposal does not prevent management from exercising its
right to make internal security determinations; the proposal only
guarantees that the procedures will be fair and equitable and
implemented consistent with the DoD requirements. The Union also
contends that its proposal is consistent with the court's
reaffirmation in Equal Employment Opportunity Commission v. FLRA#
744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 476 U.S. 19
(1986), of the Authority's broad interpretation of the scope of
the grievance procedure. Finally, the Union argues that even if
the proposal is found to infringe on management's right to
determine its internal security practices, the proposal is an
appropriate arrangement for employees adversely affected by
management misuse of the testing procedure in a punitive fashion.
Because the proposal merely implements the DoD requirement that
selection of employees for testing be done on a neutral basis,
the Union asserts that any effect on management's right to
determine its internal security practices will be minimal.
B. Discussion
We find Proposal 4 to be within the duty to bargain because
it does no more than require management to exercise its right to
determine its internal security practices in accordance with
law.
Executive Order 12564 states that the drug testing program
outlined therein is intended not only to enhance "national
security, public health and safety, law enforcement and the
efficiency of the Federal service," but also "to establish
standards and procedures to ensure fairness in achieving a
drug-free Federal workplace(.)" Executive Order 12564 at 2.
Moreover, pursuant to Section 6 of the Executive Order, the
Office of Personnel Management (OPM) has issued guidance to
Federal agencies on the implementation of the Executive Order.
FPM Letter 792-16 provides:
3. Agency Drug testing Programs
(3) When selecting testing designated positions, agencies
should ensure that the selection process does not result in
arbitrary, capricious, or discriminatory selections.
Agencies must be able to justify their selections of testing
designated positions as a neutral application of the selection
criteria set forth in section 3.a.(2)(b), above. Agencies are
absolutely prohibited from selecting positions for drug testing
on the basis of a desire to test particular individual
employees.
FPM Letter 792-16, Section 3.a.(3). We conclude that the
Executive Order, as interpreted by OPM's direction to select
positions for testing on a neutral basis, establishes a policy
which precludes agencies from using the drug testing program to
target particular individuals for testing for reasons which have
nothing to do with the implementation of that program. A similar
conclusion was reached in McDonnell v. Hunter, 809 F.2d 1302,
1308 (8th Cir. 1987), where the court held that the selection of
state prison guards to be tested under constitutionally
permissible random drug testing programs must not be arbitrary
and discriminatory.
Based on the Union's submissions, we find that Proposal 4 is
intended to ensure that the selection of employees for drug
testing is for purposes of drug testing alone, rather than as an
attempt to punish a particular employee for some other reason.
Specifically, the Union states that this proposal is intended to
do nothing more than implement the Agency's own regulations.
Union Petition for Review at 2; Union Response to Agency
Statement of Position at 2-4.
The Union refers to Department of Defense Directive 1010.9
(April 8, 1985), Section F.2a(2), which provides that employees
may be tested "(p)eriodically after appointment and selection on
the basis of neutral criteria." We interpret this regulatory
requirement for neutrality to mean that the criteria used to
select employees for testing must be the same for all employees
in the group to be tested (employees in critical or sensitive
positions), and must be applied to all employees in that group in
the same manner. The criteria for selection must not disadvantage
one employee or group of employees in those positions as against
any other employee or group of employees who are also subject to
testing.
We find that Proposal 4 is consistent with and implements
the requirements of the DoD Directive. The proposal provides that
employees will not be selected for testing as a punitive measure.
We interpret the proposal as prohibiting the Agency from
selecting employees to be tested for reasons that have no
relationship to the purposes of the drug testing program. Under
the proposal, individual employees must be selected for
testing under criteria which are applicable, to all employees in
the group subject to testing. The proposal does not prevent the
Agency from testing employees in critical or sensitive positions
for illegal drug use; it simply provides that the selection of
employees for drug testing may not be arbitrary.
We conclude that Proposal 4 merely requires the Agency to
exercise its rights under section 7106(a)(1) in accordance with
law. 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).
We do not reach the question of whether the requirement for
neutral criteria set forth in the DoD Directive constitutes the
exercise of management's right to determine its internal security
practices. Even assuming that those criteria constitute the
exercise of management's right, the criteria are consistent with
and embody the requirements of law. Therefore, the proposal
simply incorporates existing legal requirements governing the
Agency's drug testing program. Compare Patent Office Professional
Association and Patent and Trademark Office, Department of
Commerce, 25 FLRA 384, 402-03 (1987), petition for review filed
sub nom. Patent Office Professional Association v. FLRA, No.
87-1135 (D.C. Cir. Mar. 26, 1987) (where a provision of an agency
performance appraisal system constitutes the exercise of a
management right, parties cannot negotiate on the inclusion of
that provision in the collective bargaining agreement since
management would be precluded from discontinuing or modifying the
provision during the term of the contract).
We reject the Agency's contention that the proposal is
nonnegotiable because it would permit an arbitrator to substitute
his or her judgment for that of the Agency. As we recently
concluded in Newark Air Force Station and American Federation of
Government Employees, Local 2221, 30 FLRA 616, 636 (1987),
arbitral review of a management action to determine whether the
action complied with law or regulation is consistent with
congressional intent concerning the functions which arbitrators
perform under the Statute. Although Newark Air Force Station
involved exceptions to an arbitrator's award, the same principle
applies to the negotiability of a proposal which seeks to ensure
that management will exercise its section 7106 rights consistent
with law. In determining whether an employee has been
selected for drug testing as a punitive measure, an arbitrator
would be determining whether the selection complied with law. See
also General Services Administration and American Federation of
Government Employees AFL - CIO, National Council 236, 27 FLRA 3,
7-8 (1987).
For these reasons, we find that Proposal 4 does not
interfere with management's rights under section 7106 of the
Statute and is within the duty to bargain.
IV. Proposal 7
7. The employer shall not conduct testing on a random basis.
Testing shall be done when there is probable cause to believe
that an employee is under the influence of a controlled substance
while on duty or as part of an examination, regarding a mishap or
safety investigation undertaken for the purpose of accident
analysis and the development of counter measures.
A. Positions of the Parties
The Agency contends that Proposal 7 conflicts with
management's right to determine its internal security practices
under section 7106(a)(1) by preventing the use of random testing.
The Agency argues that as part of its program to test employees
in certain critical positions, it has determined that random
tests are necessary to assure the integrity and validity, of the
program. The Agency claims that the proposal interferes with
management's rights under section 7106(a)(2) because it would
subject all decisions to test employees to a precondition that
"probable cause" be established.
In its supplemental submission, the Agency also argues that
Proposal 7 conflicts with Executive Order 12564, which authorizes
random testing. The Agency also contends that Proposal 7
conflicts with the Interim Change to AR 600-85, an Agency
regulation for which a compelling need exists because it is
essential to the functioning of the Department of the Army, in an
effective and efficient manner.
The Agency also argues that the Union has not supported its
claim that the proposal is an appropriate arrangement under
section 7106(b)(3). The Agency argues that the negative effect of
random tests on unit employees has not been established by the
Union. Therefore, the Agency argues that any perceived
benefit to employees from the proposal is not sufficient to
outweigh the negative impact the proposal will have on its
internal security plan by precluding the use of random testing.
The Union contends Proposal 7 is negotiable since, in
limiting testing to probable cause, the proposal establishes a
link between drug testing and performance or behavior on the job.
Further, it claims that the Agency presented no evidence of any
relationship between the employment practice--random, observed
urinalysis testing involving off-duty conduct--and the Agency's
goal of protection of property or maintenance of its operations.
The Union also contends that the Agency has not adequately shown
that there is a compelling need for the Interim Change to AR
600-85 or that its proposal conflicts with the Executive Order.
Finally, the Union argues that even if the proposal
infringes on management's internal security rights, it is an
appropriate arrangement for employees adversely affected by
random drug testing. The Union states that the adverse effect of
random testing is the invasion of unit employees' privacy and the
potential for false positive results to affect employees'
reputations. The Union claims that by eliminating the random
nature of the test and requiring probable cause its proposal
addresses these adverse effects.
B. Discussion
We conclude that Proposal 7 is outside the duty to bargain
under section 7106(a)(1) of the Statute because it directly
interferes with management's right to determine its internal
security practices.
Proposal 7 limits management to testing employees for use of
illegal drugs on the basis of probable cause; it precludes the
testing of employees on a random basis. In U.S. Army Armament,
Munitions and Chemical Command (Proposal 1), 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 activities. We concluded that by
limiting management to testing employees only on the basis of
probable cause, 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. We also
concluded, 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), 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 so as not to constitute an
appropriate arrangement within the meaning of section
7106(b)(3).
Because Proposal 7 in this case also would preclude the
testing of employees on a random basis, it has the same effect as
Proposal 1 in U.S. Army Armament, Munitions and Chemical Command.
Therefore, we find, consistent with our decision in U.S. Army
Armament, Munitions and Chemical Command, that Proposal 7
directly interferes with management's right to determine its
internal security practices and is not an appropriate arrangement
under section 7106(b)(3) because it excessively interferes with
the exercise of that right. Consequently, Proposal 7 is outside
the duty to bargain. In light of our conclusion, we do not
address the Agency's contention that the proposal is
nonnegotiable because it conflicts with an Agency regulation for
which a compelling need exists.
V. Proposals 9 and 10
9. In the event of a positive field test, the employer will
administer two additional field tests spaced at least twenty-four
hours apart. All three tests must be positive before an employee
is deemed to have a positive field test within the meaning of
paragraph f(5).
10. Upon a positive urinalysis test, each sample will be
divided with half being sent to a remote laboratory and half
being retained in freezer storage at the installation clinic.
Upon a positive confirmation of the first sample, the employee
shall have the option of having a test performed on the retained
sample by either a certified laboratory utilized by the military
for confirmatory testing or by a laboratory of the employee's
choosing. The employer shall pay the cost of each retesting.
A. Positions of the Parties
The Agency contends that Proposals 9 and 10 directly
interfere with the technology, methods, and means it will use in
conducting its drug testing program, a matter which is negotiable
only at the election of the Agency under section 7106(b)(1) of
the Statute. The Agency argues that the tests and samples used
are the means or instruments by which it determines employees'
fitness for critical positions.
Additionally, the Agency argues that by prescribing the
investigative techniques to be used in drug testing, Proposals 9
and 10 preclude the use of any other investigatory methods.
Accordingly, the Agency contends that the proposals infringe on
management's right to determine its internal security practices
under section 7106(a)(1) of the Statute. The Agency also argues
that the requirement of Proposal 9 that an employee submit three
separate positive samples over a 2-day period may nullify the
entire program because drugs may dissipate from the employee's
system before all tests are completed. The Agency contends that
the proposal therefore would prevent it from exercising its
section 7106(a)(1) right to determine its internal security
practices. Likewise, the Agency asserts that by limiting the
amount of the specimen that can be tested, Proposal 10 increases
the likelihood that there will not be a sufficient sample to
conduct the tests, thereby interfering with management's right
under section 7106(a)(1) to determine its internal security
practices.
The Agency also contends that the proposals conflict with
the specific procedures for testing employees set forth in the
Interim Change to AR 600-85. Finally, the Agency argues that
Proposals 9 and 10 would excessively interfere with management
rights and that the Union has not established either the adverse
effects on unit employees of the drug testing procedures of the
Interim Change to AR 600-85 or the specific benefit to be
achieved by the proposals. The Agency argues that the Union's
concern about erroneous field tests is without merit because,
under the current system, all positive field tests must be
confirmed using a separate procedure. Furthermore, the Agency
contends that Proposal 9 would negate the purpose of the drug
testing program thereby excessively interfering with its right to
determine its internal security practices. As to Proposal 10, the
Agency contends that the value of the proposal to employees is
negligible and does not justify the increased costs of additional
tests.
The Union argues that its proposals are negotiable as
procedures. The Union contends that the proposals do not concern
the "technology, methods, and means of performing work" because
drug testing is not the work of the Agency. The Union also
contends that its proposals do not concern the Agency's internal
security practices because urinalysis testing of employees does
not bear any relationship to employee performance. The Union
argues that the proposals do not prevent the Agency from adopting
a particular investigative technique. Rather, the proposals
merely add procedural safeguards and, therefore, do not interfere
with management's right to determine its internal security
practices.
The Union asserts that the Agency has submitted no
scientific evidence to support its claims that the procedural
safeguards provided in the proposals will negate the drug testing
program. In support of its contention that the proposals are
appropriate arrangements under section 7106(b)(3) of the Statute,
the Union argues that the proposals mitigate the grave
consequences that may flow from a "false positive" drug test. The
Union contends that the benefit to employees of limiting the
number of "false positives" far outweighs any additional costs
from the proposals.
B. Discussion
Proposal 9
We find Proposal 9 to be outside the duty to bargain under
section 7117(a) because it conflicts with Executive Order
12564.
In U.S. Army Armament, Munitions and Chemical Command, we
concluded that Proposals 4-7, which required additional field
tests before any confirmatory test, were inconsistent with the
requirement of Executive Order 12564 that the finding of illegal
drug use must be based on a confirmatory test of the same initial
sample. We found that Proposals 4-7 prevented management from
confirming an initial positive test by requiring that
confirmatory tests be performed only on subsequent samples. We
also concluded that the Executive Order constituted law within
the meaning of section 7117(a)(1) of the Statute. Therefore, we
found that Proposals 4-7 were outside the duty to bargain under
section 7117(a)(1) because they were inconsistent with law.
While it is not clear which of the three samples required
under Proposal 9 would be subject to confirmatory,
testing, Proposal 9 would preclude any confirmatory test until
all three field tests conducted over a 2-day period have shown a
positive result. Proposal 9 would preclude confirmation of the
initial positive test sample if either the second or third field
test result is not positive. Proposal 9, therefore, like
Proposals 4-7 in U.S. Army Armament, Munitions and Chemical
Command, would require the Agency to ignore a positive field test
on an initial sample. Because Proposal 9 would preclude
confirmation of a positive test result on an initial sample, we
find, consistent with U.S. Army Armament, Munitions and Chemical
Command, that it is inconsistent with the Executive Order
requirement that appropriate personnel action be taken against
employees whose initial results are confirmed by a second test of
that same sample. Therefore, Proposal 9 is inconsistent with law
and is outside the duty to bargain under section 7117(a)(1) of
the Statute.
Proposal 10
Proposal 10 requires retention of a portion of the sample
from any positive field test so that the employee may have that
sample retested either by the Agency laboratory or one of his own
choosing at the Agency's expense. The proposal would provide the
employee with procedural protection if the Agency takes action
against the employee based on a positive confirmatory test
performed on that initial sample. The proposal neither precludes
confirmatory testing of the initial sample nor precludes the
Agency from taking specific action against employees found to
have tested positive.
Proposal 10 is like Proposals 8 and 9 in U.S. Army Armament,
Munitions and Chemical Command, which concerned retention of a
portion of the sample and retesting at the employee's request and
at the Agency's expense. We found that the proposals in that case
would not prevent management from using the drug testing
techniques it had adopted and, therefore, would not interfere
with management's right under section 7106(a)(1) to determine its
internal security practices. We concluded that those proposals
were negotiable procedures under section 7106(b)(2) of the
Statute. We also found that Proposals 8 and 9 did not conflict
with the agency's right under section 7106(b)(1) of the Statute
to determine the methods and means of performing its vork. We
found that even assuming that drug testing constitutes the
agency's work, the proposals did not prescribe either the methods
or the equipment to be used in testing. Therefore, we concluded
that the proposals did not interfere with management's
determination of the methods or means by which it would
perform that work. Finally, we found that the Agency had not
cited any particular portion of its regulations with which the
proposals would be in conflict. We therefore concluded that the
Agency's regulation did not bar negotiation on Proposals 8 and
9.
Because Proposal 10 also requires the retention of a portion
of an employee's urine sample for subsequent testing, we find,
consistent with U.S. Army Armament Munitions and Chemical
Command, that it does not interfere with management's rights
under section 7106(a)(1) and section 7106(b)(1) of the Statute.
Rather, Proposal 10 constitutes a negotiable procedure under
section 7106(b)(2). The Agency has not shown that a conflict
exists between its regulation and Proposal 10. Therefore, the
Agency's regulation does not bar negotiation of the proposal. See
American Federation of Government Employees, AFL - CIO, Local
1759 and Department of the Army, Headquarters, Fort McPherson,
Georgia, 31 FLRA No. 7 (1986) (Proposal 2). We conclude that
Proposal 10 is within the duty to bargain under the Statute.
VI. Proposal 11
11. If a positive field result (as defined by paragraph 9)
of an employee is not confirmed as positive by a certified
laboratory or by admission of the employee, the result may not be
used to take further action against the employee and any
temporary action must be rescinded and all documents relating
thereto must be destroyed.
A. Positions of the Parties
The Agency contends that Proposal 11 violates management's
right to determine its internal security practices under section
7106(a)(1) and its right to discipline employees under section
7106(a)(2)(A). Although the Agency notes that the proposal is
similar in intent to its regulation, it argues that adoption of
the proposal would bar any changes in the regulation during the
term of the collective bargaining agreement.
The Union contends that the intent of its proposal is to
protect unit employees against unsubstantiated accusations by
assuring that the confirmatory test, already required by, the
Interim Change to AR 600-85, will be conducted before any,
disciplinary action is taken against any unit employee. The Union
argues that this proposal does not directly interfere
with management's rights because it does not prevent management
from exercising its rights; it merely delays the exercise of
those rights until the initial drug test is confirmed by a second
test. The Union responds to the Agency's contention that the
Agency would be bound by the contract language even if new
technology in drug testing were developed by arguing that new
drug testing methods would trigger new negotiations. Finally, the
Union contends that Proposal 11 is an appropriate arrangement for
unit employees adversely affected by a false-positive initial
test. The Union argues that balancing the minimal infringement of
the proposal on management's right against the benefit to
employees provided by the proposal, it is clear that the benefit
to unit employees of the proposal far outweighs the burden on
management.
B. Discussion
We conclude that Proposal 11 is outside the duty to bargain
for reasons other than those raised by the parties.
Proposal 11 refers to the provisions governing the
determination of a positive field test as set forth in Proposal
9. Proposal 11 prescribes the actions management will take if a
positive field result as defined by Proposal 9--that is, three
positive initial test samples--is not confirmed by subsequent
testing. We concluded that Proposal 9 is outside the duty to
bargain under section 7117(a)(1) of the Statute because the
requirements for a positive field test contained in that proposal
were inconsistent with Executive Order 12564. We also find
Proposal 11 to be nonnegotiable because it is dependent on the
requirements for a positive field test set forth in Proposal 9.
See, for example, American Federation of Government Employees
Council 214, AFL - CIO and Department of Defense, Department of
the Air Force, Air Force Logistics Command, 30 FLRA No. 112
(1988) (Proposal 5). Therefore, we conclude that Proposal 11 is
outside the duty to bargain under section 7117(a)(1) because it
is inconsistent with Executive Order 12564. In light of our
conclusion, we do not reach the Agency's other contentions as to
the negotiability of the proposal. Moreover, because Proposal 11
is nonnegotiable under section 7117(a)(1) of the Statute, we do
not address the Union's contention that the proposal is an
appropriate arrangement under section 7106(b)(3) of the Statute.
See U.S. Army Armament, Munitions and Chemical Command (Proposals
4-7).
VII. Proposal 13
Employees will not be directly observed while they are
providing a sample unless there is just cause to believe that the
employee has tampered, adulterated or otherwise attempted to
affect the test results. In this context, the parties agree that
such attempts at deception may be just cause for disciplinary
action.
A. Positions of the Parties
In its initial submission to the Authority, the Agency
contended that Proposal 13 was inconsistent with the requirement
of the Interim Change to AR 600-85 that all employees be directly
observed. However, after the issuance of Executive Order 12564,
which required that drug testing procedures allow for privacy
except where an agency has reason to believe that an employee may
tamper with the sample, the Agency modified the Interim Change to
AR 600-85 so that it would be consistent with the Executive
Order. In a supplemental brief, the Agency withdrew its
contentions that the proposal conflicts with its regulation. The
Agency argues in the supplemental brief that the proposal
conflicts with management's right to determine its internal
security practices under section 7106(a)(1) of the Statute by
precluding direct observation of employees during the term of the
collective bargaining agreement even if applicable regulations
are revised.
The Union contends that the Agency's arguments have been
rendered moot by the Executive Order provision which precludes,
with the specified exception, the direct observation of an
employee during a drug test.
B. Discussion
We conclude that the petition for review as to Proposal 13
should be dismissed because the Union has not provided sufficient
information for us to determine the negotiability of the
proposal.
The Union does not define the tern "just cause" in its
proposal. That term is commonly employed as a disciplinary,
standard and used to evaluate the sufficiency of the reasons
cited for disciplining an employee. It is not an evidentiary
standard like "probable cause," which is used to refer to the
quantity and quality of evidence needed to support a
specific action. Although the Union states that its proposal
would permit an observer where the Agency has "reason to suspect"
or a "reasonable suspicion" that an employee will tamper with a
sample, those phrases are not normally used as substitutes for
the term "just cause." See Union Response to Agency Statement of
Position at 19. We cannot conclude, therefore, that those phrases
constitute a reasonable definition of that term.
We found in U.S. Army Armament, Munitions and Chemical
Command (Proposal 12) that a proposal which limited management to
assigning observers only where there was "probable cause" to
believe the employee would alter the sample was nonnegotiable
because it was inconsistent with the standard contained in the
Executive Order. In the absence of some evidence with respect to
the meaning of the tern "just cause" as it is used in Proposal
13, we are unable to judge whether it is inconsistent with
Executive Order 12564, which provides for an observer if the
agency has "reason to believe" that a particular individual may
alter or substitute the specimen to be provided. Although the
term "probable cause" was not defined in U.S. Army Armament,
Munitions and Chemical Command, we were able to decide the
negotiability of the proposal because we were able to interpret
that term. As noted above, "just cause" is not a term commonly
used as an evidentiary standard, and without some further
explanation, we are unable to determine whether it is consistent
with the standard set forth in the Executive Order. Therefore, we
dismiss the Union's petition for review with respect to this
proposal because the Union has not created a record on which we
can assess the negotiability of the proposal. See U.S. Army
Armament, Munitions and Chemical Command (Proposal 10); Fort
Bragg Association of Educators, NEA and Department of the Army,
fort Bragg Schools, 30 FLRA 508 (1987), petition for review
filed sub nom. Fort Bragg Association of Educators, NEA v. FLRA,
No. 87-1823 (D.C. Cir. Dec. 24, 1987)See also Overseas Education
Association, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987).
VIII. Order
The Agency must upon request, or as otherwise agreed to by
the parties, bargain on Proposals 4 and 10. 2 The petition for
review as to Proposals 7, 9, 11, and 13 is dismissed.
Issued, Washington, D.C., February 16, 1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote 1 The Agency withdrew its allegation of
nonnegotiability with respect to Proposal 3. Agency Statement of
Position at 2.
Footnote 2 In finding these proposals to be negotiable, we
make no judgment as to their merit.