31:0118(17)NG - NTEU and Customs Service -- 1988 FLRAdec NG



[ v31 p118 ]
31:0118(17)NG
The decision of the Authority follows:



  31 FLRA NO. 17

   31 FLRA 118

    22 FEB 1988
NATIONAL TREASURY EMPLOYEES UNION

                   Union

      and

U.S. CUSTOMS SERVICE

                   Agency

Case No. O-NG-1330

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)(E) of the Federal Service
Labor - Management Relations Statute (the Statute). It presents
issues relating to the negotiability of proposals concerning the
Agency's drug testing of applicants selected to fill "sensitive"
positions which involve the interdiction of illicit drugs,
require the carrying of a firearm, or involve access to
classified information. Under the Customs Service's testing
program, if an applicant is selected for a sensitive position, he
or she is asked to undergo a drug screening test. If the selectee
chooses not to submit to a drug screening test, the individual is
not put into the sensitive position. Current Agency employees who
are selected for sensitive positions and who decline to submit to
the drug screening test remain in their present positions, and no
repercussion for failing to submit to a drug screening test
occurs.

     The proposals in this case are intended to apply to those
situations where individuals selected for sensitive positions
agree to participate in the drug testing program. We find that
Proposal 1, which provides that collection of urine samples will
normally take place at the work location, or that the employee
may be asked to report to another location for security reasons,
is a negotiable procedure under section 7106(b)(2) of the
Statute. Proposal 2 provides that if an employee is unable to
produce a sample of sufficient quantity within a reasonable
period of time on the appointed day, the employee may return on
the next day until the necessary amount is voided. We find that
Proposal 2 is a negotiable procedure and is within the
duty to bargain. The first sentence of Proposal 3 provides that
employees who test positive and do not challenge the results will
be provided access to a drug treatment and rehabilitation program
as a reasonable accommodation for the employees drug abuse
problem, which is consistent with a provision of Executive Order
12564. The second sentence of Proposal 3 presents a procedure to
be followed as part of the rehabilitation efforts for employees
who participate in the drug testing program and who test
positive. These sentences are within the duty to bargain. The
third sentence of Proposal 3 provides that the records pertaining
to the initial positive drug test results will be destroyed and
the employee will be appointed to the position in question. The
third sentence of Proposal 3 is outside the duty to bargain
because it is inconsistent with managements right to assign
employees under section 7106(a)(2)(A) and does not constitute an
appropriate arrangement. Additionally, the third sentence of
Proposal 3 conflicts with Government-wide regulations.

     II. Background

     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 in detail events having direct relevance to
drug testing programs in the Executive Branch of the Federal
Government. 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 (HHS), 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). 1 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 a drug testing program is raised in a case
before us, 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. We also note that as of the date of this decision, final
regulations concerning the "Scientific and Technical Guidelines
for Drug Testing Programs" have not been published by RHS in the
Federal Register.

     On April 22, 1987, the United States Court of Appeals for
the Fifth Circuit ruled in National Treasury Employees Union v.
Von Raab, 816 F.2d 170 (5th Cir. 1987), petition for cert. filed,
55 U.S.L.W. 3822 (U.S. May 27, 1987) (No. 86-1879), that the U.S.
Customs Service drug testing program was not unconstitutional.
The court limited its decision to the program as it applied to
current employees seeking transfer to sensitive positions. The
court did not consider the applicability of the program to
applicants seeking positions with the Customs Service. Id, at
173, 182.

     Because the Customs Service's testing program was
implemented before September 15, 1986, it is a pre-existing
program under Executive Order 12564 and Section 503 of Pub. L.
No. 100-71. As a pre-existing program, HHS approval is not
required prior to testing. However, Section 503 of Pub. L. No.
100-71 requires that all pre-existing programs be brought into
compliance with the requirements of Executive Order 12564, HHS
and other Government-wide regulations applicable to drug testing
in the Federal Government.

     III. Proposal 1

     15. If the selectee chooses to participate in the Program,
the following procedures will apply.

     A. Normally sample collection will take place at the
selectees' work location. However, if an Equifax Collection site,
or alternative location more suited to the security
necessary for collection, is located within 25 miles of the
selectees' work location he/she may be asked to report to that
location.

     A. Positions of the Parties

     The Agency contends that subsection A of Proposal 1
interferes with management's right to determine its internal
security practices under section 7106(a)(1). The Agency further
argues that the proposal interferes with the technology, methods,
and means of performing work under section 7106(b)(1), and
therefore, is negotiable only at the election of the Agency. The
Agency does not object to the first sentence of this proposal.

     The Union argues that Proposal 1 is a negotiable procedure
under section 7106(b)(2). The Union denies that the proposal
infringes on management's right to determine its internal
security practices and interferes with management's determination
of the technology, methods, and means of performing work.

     B. Discussion

     1. Whether Proposal 1 Directly Interferes with Management's
Right to Determine its Internal Security Practices Under Section
7106(a)(1)

     An integral part of management's decision to adopt a plan
for protecting its internal security is its determination of the
manner in which it will implement and enforce that plan. For
example, where management establishes limitations on access to
various parts of its operations, it may use particular methods
and equipment to determine who may and who may not be given
access, such as coded cards and card reading equipment. See
American Federation of Government Employees, Local 32 and Office
of Personnel Management, 16 FLRA  40 (1984); American Federation
of Government Employees, AFL - CIO, Local 185 and Department of
the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama,
10 FLRA  440 (1982). An integral aspect of establishing a drug
testing program is management's decision as to the methods and
equipment it will use to determine whether employees have used
illegal drugs. Management's determination of the methods and
equipment to be used in drug testing is an exercise of its right
to determine its internal security practices under section
7106(a)(1) of the Statute. 

     We find that Proposal 1 does not interfere with the Agency's
right under section 7106(a)(1) of the Statute to determine its
internal security practices. No arguments have been made or
evidence presented which shows that the proposal would preclude
the Agency from taking any and all necessary steps required by
its drug testing program. The proposal states that employees will
"normally" provide the samples to be tested at the worksite. The
proposal also permits the Agency to direct employees who are
subject to testing to report to another location which is "more
suited" to the security associated with the testing. Under either
circumstance, the Agency retains the discretion to establish the
exact location for the testing. We note in this connection that
the Agency has not argued that the 25 mile limit restricts in any
way its ability to implement its drug testing program. Under
Proposal 1, the Agency retains discretion to establish the
location for collection of test samples, and is not limited in
its choice of methods and equipment used for its drug tests.
Therefore, we find that the proposal does not interfere with the
Agency's right to determine its internal security practices.

     2. Whether Proposal 1 Conflicts with Management's Right to
Determine the Technology, Methods and Means of Performing its
Work Under Section 7106(b)(1)

     We find that the Agency has not demonstrated that Proposal 1
conflicts with its right under section 7106(b)(1) of the Statute
to determine the technology, methods, and means of performing its
work.

     To sustain a claim that a proposal concerning conditions of
employment is negotiable only at the election of management
because it directly interferes with management's right to
determine the "technology" used in performing its work, an agency
must establish: (1) the technological relationship of the
proposal to accomplishing or furthering the performance of the
agency's work; and (2) how the proposal would interfere with the
purpose for which the technology was adopted. American Federation
of Government Employees, AFL - CIO, National Council of Social
Security Field Office Locals and Department of Health and Human
Services, Social Security Administration, 24 FLRA  842, 846-47
(1986). In the context of section 7106(b)(1), "means" refers to
any instrumentality, including an agent, tool, device,
measure, plan or policy used by an agency for the accomplishing
or furthering of the performance of its work. U.S. Army Armament,
Munitions and Chemical Command, slip op. at 27. "Method" refers
to the way in which an agency performs its work. National
Federation of Federal Employees, Local 541 and Veterans
Administration Hospital, Long Beach, California, 12 FLRA  270
(1983). The term "performing work" which appears in section
7106(b)(1) of the Statute is intended to include those matters
which directly and integrally relate to the Agency's operations
as a whole. Federal Employees Metal Trades Council, AFL - CIO and
Department of the Navy, Mare Island Naval Shipyard, Vallejo,
California and American Federation of Government Employees, Local
1533, 25 FLRA  465 (1987).

     The Agency has not shown, and it is not otherwise apparent
from the record, that Proposal 1 involves the technoloy, methods,
and means of performing the Agency's work under section
7106(b)(1) of the Statute. The proposal does not prescribe the
methods nor equipment to be used by the Agency in administering
its drug testing program. The proposal would not in any manner
interfere with the Agency's choice of any instrumentality to be
used for the accomplishing or the furthering of drug testing.
Instead, this proposal merely prescribes procedures which the
Agency will follow in implementing its drug testing program.
Thus, we find that Proposal 1 does not interfere with the
Agency's right to determine the technology, methods, and means of
performing its work under section 7106(b)(1). Proposal 1
constitutes a negotiable procedure under section 7106(b)(2) of
the Statute.

     IV. Proposal 2

     15. If the selectee chooses to participate in the Program,
the following procedures will apply.

     E. If sufficient volume of urine is not able to be provided
within a reasonable period of time on the appointed day the
selectee may return on the next day until the necessary amount is
voided.

     A. Positions of the Parties

     The Agency asserts that subsection E of this proposal is
inconsistent with an applicable Government-wide regulation,
namely, Section 8 of the HHS Scientific and Technical
Guidelines issued on February 13, 1987. The Agency further
contends that Proposal 2 interferes with its right to determine
its internal security practices under section 7106(a)(1) and with
its right to determine the means of performing work under section
7106(b)(1).

     The Union states that its proposal is intended to ensure
that employees volunteering to participate in the program are
given every opportunity to provide a sufficient amount of urine,
and that the proposal accomplishes this intent by giving
employees an additional 24-hour period to consume additional
fluids in order to generate an increased volume of urine. The
Union contends that the proposal is a negotiable procedure under
section 7106(b)(2). The Union asserts that the proposal does not
conflict with any Government-wide regulation, and that the Agency
has failed to demonstrate any violation of Agency security which
would result from the proposal.

     B. Discussion

     Section 8 of the HHS Scientific and Technical Guidelines
issued on February 13, 1987 states:

     Upon receiving the specimen from the individual, the
collection site person will determine that it contains at least
60 milliliters of urine. If there is not sufficient urine in the
container, additional urine shall be collected. The individual
may be given reasonable amounts of liquid (e.g., a glass of
water). If an individual fails, for any reason, to provide the
necessary specimen, collection site personnel shall contact
appropriate authority to obtain guidance on action to be taken.

     As noted above, HHS has not published final guidelines in
the Federal Register as of the date of this decision. Even
assuming that Section 8, set forth above, constitutes a
Government-wide regulation within the meaning of section 7117(a)
of the Statute, we find that Proposal 2 does not conflict with
that provision.

     Proposal 2 would allow an employee to return on the next day
if he or she is unable to provide a sufficient volume of urine
within a reasonable period of time on the appointed day. As the
Union states at 8 of its Response to the Agency's Supplemental
Brief, the proposal does not mandate a specific time
limit on the collection function, but instead allows a reasonable
period of time for the collection of urine, which will vary
depending on the totality of the circumstances including the time
of day the employee reports for collection. In our view, the
proposal simply sets forth a negotiable procedure to be followed
in those instances in which an employee is unable to produce a
sample after that period of time. The proposal does not conflict
with Section 8 of the HHS Guidelines of February 13, 1987,
because Section 8 does not mandate any particular action in the
situation addressed by this proposal. Similarly, we find that the
proposal does not directly interfere with the Agency's right to
determine its internal security practices. The proposal does not
prevent the Agency from testing and it does not prescribe the
tests that will be used; it simply establishes steps that will be
followed in the circumstances where an employee is unable to
provide a sufficient sample. Accordingly, we find that the
proposal is within the duty to bargain.

     V. Proposal 3

     18. If the report is positive and the employee does not wish
to challenge its findings the Customs Service will make
reasonable accommodations for the employee's drug abuse problem
by providing him/her access to a drug treatment and
rehabilitation program. If the employee chooses to participate in
the program, following a reasonable period of time determined in
conjunction with representatives from the treatment and
rehabilitation program, another urinalysis will be conducted. If
the results are negative, all records pertaining to the initial
test will be destroyed and the employee will be appointed to the
position in question.

     A. Positions of the Parties

     The Agency contends that the proposal is nonnegotiable
because it is inconsistent with Sections 4(c) and 5(e) of
Executive Order 12564, and with Section 5 of FPM Letter 792-16,
which permit an agency to take disciplinary action against an
employee who uses illegal drugs. The Agency also argues that the
proposal interferes with the Agency's authority to discipline
employees and to hire and remove employees under section
7106(a)(2)(A) of the Statute. The Agency's allegations of
nonnegotiability concern the entire proposal. The Agency does not
make separate allegations of nonnegotiability concerning the
individual sentences of the proposal.

     The Union asserts that the proposal does not affect the
Agency's right to discipline employees. Rather, it contends that
the proposal provides an appropriate arrangement for an employee
who has tested positive, by providing rehabilitation efforts and
placement in the position sought upon successful completion of
the rehabilitation.

     B. Discussion

     The Agency tests applicants and employees tentatively
selected to fill positions which are engaged in the interdiction
of illicit drugs, require the carrying of a firearm, or involve
access to classified information. Since the proposal addresses
only "employees," and because neither party presents arguments
relating to applicants, we will construe this proposal as
applicable only to employees who apply for a sensitive position.
See Union's Brief in Response to the Agency's Supplemental Brief
at 10-16; Agency's Supplemental Statement at 4-6.

     The first sentence of Proposal 3 merely reflects the
provisions of section 5(a) of Executive Order 12564. it
prescribes the procedures, including referral for counseling and
rehabilitation, which the Agency will follow when an employee has
tested positive for illegal drug use.

     The second sentence of Proposal 3 also establishes a
procedure to be followed in the rehabilitation of employees who
participate in the drug testing program and who test positive.
The second sentence simply requires that an employee be given a
urinalysis after a reasonable period in a treatment or
rehabilitation program. It does not specify the type of test, nor
does it prevent the Agency from taking any particular action
based on the results of the test. Accordingly, we find that the
second sentence of Proposal 3 is a negotiable procedure within
the meaning of section 7106(b)(2) of the Statute. The first and
second sentences of Proposal 3, therefore, are within the duty to
bargain.

     We find that the third sentence of Proposal 3, as it applies
to employees who apply for sensitive positions, interferes with
management's right to assign employees under section
7106(a)(2)(A) of the Statute. This sentence would permit
the Agency to either leave the position vacant or to fill the
position sought by the employee only on a temporary basis, until
the original selectee successfully completes the drug
rehabilitation program. At that point, the Agency would be
required to place the employee who had completed rehabilitation
in that position. Thus, the third sentence of the proposal would
restrict the positions to which the Agency can assign a
rehabilitated employee. The third sentence would require the
assignment of employees who participated in a rehabilitation
program and then successfully passed another drug screening test
to the position for which the employee had been tentatively
selected. This requirement would preclude assignment of the
employee to a comparable, similar position, or to any other
available position. Accordingly, the third sentence of Proposal 3
violates management's reserved right under section 7106(a)(2)(A)
to assign employees and is outside the duty to bargain. See
Illinois Nurses Association and Veterans Administration Medical
Center, North Chicago, Illinois, 27 FLRA  714, 734 (1987),
petition for review filed as to other matters sub nom. Veterans
Administration Medical Center, North Chicago, Illinois v. FLRA, 
No. 87-1405 (D.C. Cir. Aug. 17, 1987); American Federation of
Government Employees, AFL - CIO and Air Force Logistics Command,
Wright - Patterson Air Force Base, Ohio, 2 FLRA  604, 626-27
(1980) (Proposal XIII), aff'd sub nom. Department of Defense v.
FLRA,  659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945
(1982).

     The Union argues that this proposal constitutes an
appropriate arrangement for employees selected for sensitive
positions who are found, through the Agency's drug testing
program, to have used illegal drugs. The factors for evaluating
whether a proposal constitutes an appropriate arrangement were
enunciated in the Authority's decision in National Association of
Government Employees, Local R14-87 and Kansas Army National
Guard, 21 FLRA  24 (1986). For the reasons discussed below, we
find that the third sentence of the proposal does not constitute
an appropriate arrangement.

     We find that the third sentence of the proposal is intended
to be an "arrangement" for employees who test positive for the
use of illegal drugs. It is intended to mitigate against possible
discipline, including removal, which would result from a finding
of illegal drug use. However, we conclude that the third sentence
is not an "appropriate" arrangement. While it benefits employees
by affording them access to rehabilitation programs and
assurances of a position, the benefit is one which is
necessitated by their use of illegal drugs. The Agency would be
obligated to place the employee who had used drugs in the critical position for which the employee had applied. See,
for example, National Labor Relations Board Union and National
Labor Relations Board, Office of the General Counsel, 18 FLRA 
320, 323-25 (1985). We find that the benefit to the employees who
had used drugs would not outweigh the burden placed on management
by the requirement that the positions for which employees applied
be kept open and that employees be placed in those positions when
they have completed rehabilitation. We find, therefore, that the
third sentence of the proposal would excessively interfere with
management's right to assign employees under section
7106(a)(2)(A) of the Statute and is not an appropriate
arrangement under section 7106(b)(3). See International Plate
Printers, Die Stampers and Engravers union of North America, AFL
- CIO, Local 2 and Department of the Treasury Bureau of Engraving
and Printing, Washington, D.C., 25 FLRA  113, 133 (1987).

     Moreover, we find that the third sentence of the proposal,
which requires the Agency to destroy all records concerning an
initial positive test result if the employee successfully
completes a rehabilitation program, is inconsistent with
applicable Government-wide regulations. Section 4(c) of Executive
Order 12564 requires the development of procedures to retain drug
testing results. Subsection S6-7.a. of FPM Supplement 293-31
states that records which are created when an employee undergoes
a drug screening test under an agency plan implementing Executive
Order 12564: (1) are subject to the Privacy Act; (2) are
generally part of the Employee Medical File System; and (3) will
be retained by the agency. The Employee Medical Folder, a
separate file folder (Standard Form 66-D) which contains all
medical records, "accompanies the employee during his/her Federal
career," and is part of an employee's Official Personnel Folder
(OPF). FPM Supplement 293-31, subchapter 6-2.

     The third sentence of Proposal 3 would require the Agency to
destroy employee drug rehabilitation records which under FPM
Supplement 293-31, subchapter 6-7 must be maintained. Therefore,
that sentence is inconsistent with that provision of the FPM. If
FPM Supplement 293-31, subchapter 6-7 constitutes a
Government-wide regulation, the third sentence of the proposal is
outside the duty to bargain under section 7117(a)(1) of the
Statute.

     A Government-wide regulation within the meaning of section
7117(a)(1) of the Statute is an official declaration of policy of
an agency which is binding on officials and agencies to
which it applies. National Federation of Federal Employees, Local
1497 and Department of the Air Force, Lowry Air Force Base,
Colo., 9 FLRA  151, 155 (1982). The provisions of subchapter S6-7
apply to agencies, as the term is defined in subsection S1-8b:

     . . . an executive department, military department
(excluding nonappropriated fund activities), Government
corporation, Government-controlled corporation, or other
establishment in the executive branch of the Government
(including the Executive Office of the President), or any other
independent regulatory agency.

     FPM Supplement 293-31, subchapter S1-8. For purposes of this
supplement, the term "employee" has the meaning prescribed in 5
U.S.C. 2105, which is the statutory definition of a Federal
employee. FPM Supplement 293-31, subchapter S6-2. As such, FPM
Supplement 293-31, subchapter 6-7, Drug Testing Records Under
Executive Order 12564, is generally applicable to the Federal
workforce as a whole. We find, therefore, that FPM Supplement
293-31, subchapter S6-7 is "Government-wide" within the meaning
of section 7117(a)(1) of the Statute.

     As to whether FPM Supplement 293-31, subchapter S6-7 is a
"regulation" within the meaning of section 7117(a)(1), we find
that FPM Supplement 293-31 is part of the regulations promulgated
by the Office of Personnel Management (OPM) regarding the
composition and maintenance of OPFs. OPM's authority to prescribe
rules and requirements covering personnel records and files is
derived from 5 U.S.C. 1302. The head of each agency is
responsible for ensuring that personnel records are established
and maintained in accord with OPM's published instructions. FPM,
chapter 293, subchapter 1-3. Official Personnel Folders must be
maintained in accord with FPM Supplement 293-31. FPM, chapter
293, subchapter 1-4. Thus, we conclude that FPM Supplement
293-31, subchapter S6-7 is an official declaration of binding
policy so as to constitute a "regulation" within the meaning of
section 7117(a)(1) of the Statute. See Department of the Air
Force, Lowry Air Force Base, Colo., 9 FLRA  151. 
     Because the third sentence of Proposal 3 is inconsistent
with Government-wide regulations within the meaning of section
7117(a)(1), we find that it is outside the duty to bargain. The
third sentence of Proposal 3 is also inconsistent with
management's right to assign employees to positions and does not
constitute an appropriate arrangement. We find, therefore, that
the third sentence of Proposal 3 is outside the duty to bargain.
Because of our findings, we need not address the other
contentions raised by the Agency.

     VI. Order

     The Agency must upon request, or as otherwise agreed to by
the parties, bargain on Proposal 1, Proposal 2, and the first and
second sentences of Proposal 3. 2 The petition for review as to
the third sentence of Proposal 3 is dismissed.

     Issued, Washington, D.C., February 22, 1988.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY 
FOOTNOTES

     Footnote 1 Pub. L. No. 100-71 placed certain restrictions on
the   use of appropriated funds for drug testing of civilian
employees. The   Customs Service's drug testing program is
temporarily exempted from   those restrictions. Section
503(b)(1)(D).

     Footnote 2 In finding these proposals