31:0241(25)NG - NFFE Local 2058 and Army Aberdeen Proving Ground, Installation Support Activity -- 1988 FLRAdec NG



[ v31 p241 ]
31:0241(25)NG
The decision of the Authority follows:


  31 FLRA NO. 25
 31 FLRA 241

      22 FEB 1988
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 2058

                   Union

          and

U.S. ARMY ABERDEEN PROVING GROUND
INSTALLATION SUPPORT ACTIVITY

                   Agency

Case No. O-NG-1342

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 10 proposals. The 10 proposals
present issues concerning the Agency's testing of certain
selected categories of civilian employees for drug abuse. Other
than the Agency's initial declaration of nonnegotiability
concerning Proposals 1, 4, 9, and 10, we have no record of either
party's position concerning these four proposals.

     We find that the petition for review as to Proposals 1, 8,
and 9 should be dismissed because the Union did not provide the
information necessary for the Authority to make a negotiability
determination. We find that Proposal 2, which provides that no
employee will be sujected to urinalysis on a punitive basis, is
negotiable because it merely requires the Agency to exercise its
rights in accordance with Executive Order 12564. We find that
Proposal 3, which requires employees who object to urinalysis to
be reassigned in certain circumstances and that employees who are
reassigned be given a 180-day training period, is nonnegotiable.
The proposal directly interferes with management's rights to
assign employees under section 7106(a)(2)(A), to assign work
under section 7106(a)(2)(B), and to make selections for filling
positions under section 7106(a)(2)(C), and is not an
"arrangement" for employees adversely affected by the exercise of a management right under section 7106(b)(3). We find
Proposal 4, which provides that employees may not be removed
while in a drug rehabilitation program, to be nonnegotiable
because it directly interferes with management's right to
discipline employees under section 7106(a)(2)(A).

     We find Proposals 5 and 7, which require additional test
samples to be taken before an employee is deemed to have a
positive 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 6, which provides for
retention of a portion of the initial sample for later testing if
requested by the employee, to be a negotiable procedure under
section 7106(b)(2). Finally, Proposal 10 requires: (1) retention
of a portion of the initial sample; (2) confirmation of the
retained portion; and (3) two confirmatory tests prior to any
adverse action being taken against an employee. We find that the
first portion of Proposal 10 is a negotiable procedure under
section 7106(b)(2). We find that the last sentence is
nonnegotiable because it is inconsistent with Executive Order
12564.

     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 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. 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.

     We note, finally, that as of the date of this decision, the
Department of Health and Human Services has not published final
regulations in the Federal Register.

     III. Proposal 1

     Section 3. Employees who are subject to urinalysis as a
condition of employment shall be notified of this fact in writing
at least 14 days prior to being ordered to submit his/her first
urine sample. All such employees shall receive a copy of this
agreement.

     (Only the underlined portion is in dispute.)

     A. Positions of the Parties

     The Agency interprets Proposal 1 as requiring a 14-day
notice period in addition to the initial notice period provided
to all employees prior to the initiation of the drug
testing program. The Agency contends that this additional 14-day
notice interferes with management's right under section
7106(a)(1) of the Statute to determine its internal security
practices because it would permit employees who are users of
illegal drugs to "purge their systems" prior to being subjected
to the first test. Agency Allegation of Nonnegotiability at 1.
The Union did not address this proposal in its Petition for
Review or in its Response to the Agency's Statement of
Position.

     B. Discussion

     We conclude that the petition for review as to Proposal 1
should be dismissed because the Union has not submitted
sufficient information for us to determine the negotiability of
the proposal.

     Proposal 1 is subject to interpretations other than the one
suggested by the Agency in its initial allegation of
nonnegotiability. For example, the proposal could be intended to
provide a 14-day notice period to all employees subject to random
drug testing prior to implementation of the drug testing program.
Under this interpretation, the proposal would constitute a
negotiable procedure under section 7106(b)(2).

     However, the proposal could also be intended to give each
employee subject to drug testing a 14-day notice period after the
program is implemented but before the employee's initial
urinalysis test. The Agency interprets the proposal in this
manner. Under this interpretation, the proposal could provide
employees who use drugs with sufficient notice of the date on
which they are to be tested so as to frustrate the drug testing
program's purpose of identifying illegal drug users. We agree
with the Agency that if the proposal is interpreted in this
manner, the proposal would directly interfere with the purpose of
the drug testing program and, thereby, directly interfere with
management's right under section 7106(a)(1) to determine its
internal security practices. See U.S. Army Armament, Munitions
and Chemical Command, slip op. at 10-11.

     The record in this case provides no basis for determining
which of these possible interpretations reflects the intention of
the Union. Because the Union has not created a record on which we
can determine the meaning of Proposal 1, and thereby, assess the
negotiability of the proposal, we must dismiss the
Union's petition for review. 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, 821 (D.C. Cir. 1987).

     IV. Proposal 2

     Section 7. Under no circumstances will an employee be
subjected to urinalysis testing as a punitive measure.

     A. Positions of the Parties

     The Agency contends that Proposal 2 violates its right under
section 7106(a)(1) to determine its internal security practices
because it subjects management's determination of which employees
are selected for drug testing to an arbitrator's judgment. The
Agency argues that under this proposal, an employee could grieve
his or her selection for the test and could invalidate the test.
The Agency asserts that there is a compelling need for the
Interim Change to AR 600-85 and that to the extent that the
proposals conflict with the Interim Change, they are barred by
section 7117(a)(2) of the Statute. Finally, the Agency contends
that the Union has not established either the detrimental effect
of the Interim Change to AR 600-85 or the manner in which its
proposals address or compensate for any alleged adverse effects
of the Interim Change. The Agency argues that Proposal 2
excessively interferes with management's right to determine its
internal security practices by providing the Union with a right
to challenge management's decision as to which employees should
be selected for testing.

     The Union contends that Proposal 2 is consistent with law
and intended to prevent misuse of the drug testing procedure. The
Union also contends that Proposal 2 is an appropriate arrangement
for unit employees who are adversely affected by management's use
of the drug testing selection process for punitive reasons.

     B. Discussion

     We conclude that Proposal 2 is within the duty to bargain
because it requires management to exercise its right to determine
its internal security practices in accordance with law. 

     In National Federation of Federal Employees, Local 1437 and
U.S. Army Armament Research, Development and Engineering Center,
Dover. New Jersey, 31 FLRA  No. 16 (1988), we concluded that
Proposal 4, which provided that no employee will be subjected to
urinalysis as a punitive measure, was within the duty to bargain.
We found that the proposal required only that the selection of
employees for drug testing be in accordance with law. We rejected
the Agency's argument that the proposal was nonnegotiable because
it subjected the exercise of a management right to review by an
arbitrator. We concluded that a proposal providing for an
arbitrator to examine the exercise of a management right in order
to determine whether it complies with applicable law is within
the duty to bargain. We conclude, consistent with our decision in
U.S. Army Armament Research, Development and Engineering Center,
that Proposal 2 does not interfere with management's right under
section 7106(a)(1) to determine its internal security practices.
Rather, Proposal 2 requires that selection of employees for drug
testing be in accordance with law, and is within the duty to
bargain.

     V. Proposal 3

     Section 8. Employees who object to submitting to a
urinalysis as a condition of employment shall, upon request, be
given the right to a lateral reassignment into a job which is not
subject to urinalysis testing, which management intends to fill,
and for which the employee qualifies. This employee's right is
conditional on satisfactory employee performance in his/her
present job. All employees will be informed of this right prior
to being asked to sign DA Form 5019-R (condition of employment
for certain civilian positions identified as critical under the
drug abuse testing program). Employees who exercise this right
will be given a 180 day training period.

     A. Positions of the Parties

     The Agency contends that the first part of Proposal 3 is
nonnegotiable under section 7117(a)(1) because it is inconsistent
with Requirement 4 of subchapter 1-4, chapter 335 of the FPM,
which provides that management may select applicants from "other
appropriate sources" in filling vacancies. The Agency also
contends that the proposal violates its rights under section
7106(a)(2)(A) and (B) to assign employees and assign
work by requiring employees to be reassigned at their request.
The Agency also argues that the last sentence of the proposal,
which provides that employees selected will be given training,
violates its right under section 7106(a)(2)(B) of the Statute to
assign work. In addition, the Agency contends that Proposal 3
conflicts with the Interim Change to AR 600-85, which provides
for voluntary or involuntary reassignment, demotion, or removal
from the Federal service for employees who refuse to sign the
Condition of Employment form (paragraph 5-14c(4)). Finally, the
Agency argues that the proposal does not constitute an
appropriate arrangement because it excessively interferes with
its rights to select and assign work.

     The Union contends that Proposal 3 is negotiable as an
appropriate arrangement for employees who are adversely affected
by the assignment to a position which requires drug testing. The
Union argues that the proposal does not excessively interfere
with management's rights because the proposal only requires the
Agency to fill vacant positions which it intends to fill and
preserves management's right to determine whether employees are
qualified for those positions.

     B. Discussion

     We conclude that Proposal 3 is outside the duty to bargain
for the reasons set forth below.

     In National Federation of Federal Employees, Local 178 and
U.S. Army Aberdeen Proving Ground, Installation Support Activity,
31 FLRA  No. 24 (1988) (Proposal 3), we concluded that an
identical proposal, which required the Agency to reassign
employees who object to being subject to drug testing and provide
them with 180 days of training, was outside the duty to bargain
because it directly interfered with management's rights: (1) to
assign employees under section 7106(a)(2)(A); (2) to assign work
under section 7106(a)(2)(B); and (3) to make selections for
filling positions under section 7106(a)(2)(C) of the Statute. We
also concluded that the proposal was not an "arrangement" for
employees adversely affected by the exercise of a management
right under section 7106(b)(3) because we found that the proposal
was an effort to require the Agency to accommodate employees'
personal preferences and not an arrangement for employees
adversely affected by management action.

     Consistent with our decision in Aberdeen Proving Ground,
Installation Support Activity, we conclude that Proposal 3 is
outside the duty to bargain because it directly interferes with
management's rights to assign employees under section
7106(a)(2)(A), to assign work under section 7106(a)(2)(B), and to
make selections for filling positions under section
7106(a)(2)(C). We also conclude that it is not an "arrangement"
for employees adversely affected by the exercise of a management
right under section 7106(b)(3) of the Statute. Therefore, we do
not reach the question of whether the proposal is an
"appropriate" arrangement under section 7106(b)(3).

     VI. Proposal 4

     Section 9. Any employee that is found to test positive under
the drug testing program shall be provided with the opportunity
to voluntarily enroll in a program. Any such employee shall not
be removed from Federal service while actively receiving
treatment in a drug rehabilitation program. The employer agrees
to make efforts to detail or reassign an employee who
successfully completes the drug rehabilitation program.

     (Only the underlined portion is in dispute.)

     A. Positions of the Parties

     The Agency contends that Proposal 4 interferes with its
right under section 7106(a)(2)(A) of the Statute to discipline
employees. The Agency states that the proposal would prevent it
from removing employees who are receiving treatment, even where
the employees continue to use illegal drugs. The Union did not
address this proposal in its petition for review or in its
response to the Agency's statement of position.

     B. Discussion

     We conclude that the underlined portion of Proposal 4 is
outside the duty to bargain because it directly interferes with
management's right to discipline employees under section
7106(a)(2)(A) of the Statute.

     This portion of Proposal 4 is to the same effect as Proposal
I in National Treasury Employees Union and Internal Revenue
Service, 6 FLRA  522 (1981). The proposal in that case would have
precluded disciplinary action against an employee who is an
active participant in a recognized drug/alcoholism program. The
Authority found that proposal to be outside the duty to
bargain under section 7106(a)(2)(A) because the proposal
permitted employees to secure complete immunity from discipline
without regard to behavior or performance on the job simply by
entering and remaining in the program. Proposal 4, likewise,
precludes the Agency from removing an employee while the employee
is actively receiving treatment in a drug rehabilitation program,
thereby precluding such discipline for any reason. Consistent
with the decision in Internal Revenue Service, we find that
Proposal 4 directly interferes with management's right to
discipline employees under section 7106(a)(2)(A) and is outside
the duty to bargain.

     We note that Proposal 4 is broadly worded and refers to
removals for any reason. If the proposal were revised to concern
only removal on grounds of the initial finding of drug abuse, it
would simply reflect the requirements of Section 5 of Executive
Order 12564 and, therefore, would be negotiable.

     VII. Proposals 5 and 6

     Proposal 5

     Section 10. In the event of a positive test field result,
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.

     Proposal 6

     Section 12. Upon a positive urinalysis test, each sample
will be divided with half being sent for confirmatory testing at
a remote laboratory and half being retained in freezer storage at
the Office of Alcohol Abuse & Drug Rehabilitation Center. Upon a
positive confirmation of the first sample, the employee will have
the option of having a test performed on the retained sample by
either a military facility 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 these proposals restrict the
methods and means by which the drug testing program is conducted
and, thereby, directly interfere with management's rights to
determine: (1) its internal security practices under section
7106(a)(1) of the Statute; and (2) the technology, methods, and
means of performing its work under section 7106(b)(1). In
addition, the Agency contends that Proposal 5 interferes with its
right to determine its internal security practices because the
requirement that an employee submit three separate positive
samples over a 2-day period could nullify the purpose of the drug
testing program if the drug dissipated over that time period. The
Agency also argues that Proposal 6 interferes with its right to
determine its internal security practices because the proposal
limits the amount of the sample to be tested. The Agency
maintains that the proposal would increase the likelihood that
there will not be a sufficient sample to conduct a test.

     The Agency argues that the Union has not established either
the adverse effect of the Interim Change to AR 600-85 or the
specific benefit to employees of the proposals. The Agency also
argues that Proposal 5 excessively interferes with its statutory
rights and that the benefit provided by the proposals to
bargaining unit employees is minimal because the drug testing
procedure contained in the Interim Change to AR 600-85 provides
for confirmatory testing. As to Proposal 6, the Agency contends
that the minimal value to bargaining unit employees of retaining
a portion of the sample to have it tested at the Agency's expense
does not justify the increased expense, particularly in light of
the fact that the Interim Change to AR 600-85 already provides
for confirmation of the field test. Finally, the Agency contends
that the proposals conflict with the Interim Change to AR 600-85,
a regulation for which a compelling need exists.

     The Union contends that the proposals are negotiable as
procedures, and that they do not interfere with management's
right under section 7106(a)(1) to determine internal security
practices or its right under section 7106(b)(1) to establish the
technology, methods, and means of performing its work. Further,
the Union argues that the proposals do not conflict with the
Interim Change to AR 600-85. Finally, the Union argues that the
proposals are appropriate arrangements for unit employees who are
adversely affected by the potential for false positive test
results.

     B. Discussion

     Proposal 5

     We conclude that Proposal 5 is outside the duty to bargain
under section 7117(a)(1) because it conflicts with Executive
Order 12564.

     Proposal 5 is to the same effect as Proposal 9 in U.S. Army
Armament Research, Development and Engineering Center. That
proposal precluded any confirmatory test until three tests
conducted over a 2-day period showed a positive result. We
concluded that the proposal precluded confirmation of the initial
positive result where either the second or third field test
result was not positive. We found that the proposal conflicted
with the requirement of the Executive Order that appropriate
action be taken against employees whose initial positive sample
is confirmed by a second test of the same sample. Consequently,
we found that the proposal was inconsistent with the Executive
Order. Because the Executive Order constitutes law within the
meaning of section 7117(a)(1), we concluded that the proposal was
outside the duty to bargain under section 7117(a)(1) of the
Statute. Consistent with U.S. Army Armament Research. Development
and Engineering Center, we conclude that Proposal 5 in this case
is inconsistent with law and therefore outside the duty to
bargain under section 7117(a)(1) of the Statute.

     Proposal 6

     We find that Proposal 6 is a negotiable procedure under
section 7106(b)(2) of the Statute.

     Proposal 6 is to the same effect as Proposal lo in U.S. Army
Armament Research, Development and Engineering Center, which we
found to be a negotiable procedure. That proposal also provided
for retention of a portion of the sample and later retesting at
the employee's request. We concluded that the proposal did not
prevent management from using the drug testing techniques it had
adopted and did not directly interfere with management's right
under section 7106(a)(1) to determine its internal security
practices. We also concluded that even assuming that drug testing
constituted the Agency's work, the proposal did not prescribe
either the methods or the equipment to be used in drug testing
and therefore did not interfere with management's right under
section 7106(b)(1) to determine the methods and means
of performing its work. Finally, we concluded that the Agency had
not shown that a conflict existed between its regulation and the
proposal.

     Consistent with our decision in U.S. Army Armament Research,
Development and Engineering Center, we conclude that Proposal 6,
which also requires retention of a portion of a test sample for
possible subsequent testing at Agency expense, does not directly
interfere with management's rights under section 7106(a)(1) to
determine its internal security practices or under section
7106(b)(1) to determine the methods and means of performing its
work. Further, we find that the Agency has not shown that
Proposal 6 conflicts with its regulation and, thus, the proposal
is not barred by an Agency regulation for which a compelling need
exists. Therefore, we conclude that Proposal 6 is a negotiable
procedure under section 7106(b)(2) of the Statute.

     VIII. Proposal 7

     Section 13. If a positive field test result (as defined in
Section 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 7 violates management's
right to determine its internal security practices under section
7106 (a)(1) and its right under section 7106(a)(2)(A) to
discipline employees. The Agency argues that the proposal
interferes with its statutory rights because adoption of the
proposal would effectively bar any future changes to the Interim
Change to AR 600-85 during the term of the parties' agreement.

     The Union contends that Proposal 7 does not prevent the
Agency from changing its regulations in the future. Additionally,
the Union contends that the proposal constitutes an appropriate
arrangement for employees who are adversely affected by a
false-positive field test.

     B. Discussion

     We conclude that Proposal 7 is outside the duty to bargain
under section 7117(a)(1) of the Statute. 

     Proposal 7 is dependent on the provisions governing a
positive field test set forth in Proposal 5. We found that
Proposal 5 is outside the duty to bargain under section
7117(a)(1) because it precluded any confirmatory test until three
tests conducted over a 2-day period showed a positive result,
thereby precluding, in some circumstances, the confirmation of an
initial positive test result consistent with the requirements of
Executive Order 12564. Because Proposal 7 is dependent on
Proposal 5, we also find it to be outside the duty to bargain
under section 7117(a)(1). See U.S. Army Armament Research,
Development and Engineering Center (Proposal 11).

     IX. Proposal 8

     Section 16. 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 has
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

     Subsequent to the filing of the Union's petition for review,
the Agency modified the Interim Change to AR 600-85 to reflect
the requirement of Section 4(c) of Executive Order 12564 that
"(p)rocedures for providing urine specimens must allow individual
privacy, unless the agency has reason to believe that a
particular individual may alter or substitute the specimen to be
provided." The Agency contends that the proposal is moot because
of the issuance of the Executive Order and the Agency's amended
regulation and, therefore, should be dismissed by the Authority.
The Agency now contends that the proposal conflicts with its
right under section 7106(a)(1) to determine its internal security
practices because the proposal would bind the Agency during the
term of the parties' agreement and preclude changes required by
regulation.

     The Union's contentions were directed at the requirement for
direct observation set forth in the Interim Change to AR 600-85
prior to its modification. The Union did not address the modified
regulation. 

     B. Discussion

     We conclude that the petition for review as to Proposal 8
should be dismissed because the Union has not submitted
sufficient information for us to determine the negotiability of
the proposal.

     Proposal 8 is identical to Proposal 13 in U.S. Army Armament
Research, Development and Engineering Center. In that case, we
concluded that the petition for review as to Proposal 13 should
be dismissed. We reached that conclusion because the Union did
not define the term "just cause" in its proposal. We therefore
did not have sufficient information to determine whether that
standard was inconsistent with the standard contained in
Executive Order 12564, which provides for an observer if the
agency has reason to believe that a particular individual may
alter or substitute for the specimen to be provided. The record
in this case also does not provide any explanation of the meaning
of the proposal. We conclude, therefore, that the Union has not
provided us with sufficient information to determine whether the
standard of "just cause" contained in Proposal 8 is inconsistent
with the standard contained in the Executive Order. Consistent
with U.S. Army Armament Research, Development a Center,
therefore, we find that the petition for review as to that
proposal should be dismissed because the Union has not created a
record on which we can assess the negotiability of the
proposal.

     X. Proposal 9

     Section 17. A computer programed for random selection of the
entire bargaining unit will be by a disinterested individual and
monitored by union representation.

     A. Positions of the Parties

     The Agency contends that Proposal 9 conflicts with
management's right under section 7106(b)(1) to determine the
technology, methods, and means of performing the Agency's work
because it prescribes the use of a computer in selecting
employees for drug testing. The Agency also contends that
Proposal 9 interferes with management's right to assign work
under section 7106(a)(2)(B) by requiring that the random
selection process be accomplished by a "disinterested individual"
and be "monitored by union representation." The Union did not
address this proposal in its petition for review or in its
response to the Agency's statement of position.

     B. Discussion

     We conclude that the petition for review as to Proposal 9
should be dismissed because the Union has not submitted
sufficient information for us to determine the negotiability of
the proposal.

     Like Proposal 4 above, Proposal 9 is subject to differing
interpretations. The Union does not define what it intends by the
phrase "monitored by union representation." If the intent of that
phrase is to provide the Union with a right to receive
information concerning the implementation of the selection
process, the proposal could be a negotiable procedure, depending
on how it would be applied. See, for example, American Federation
of Government Employees, AFL - CIO, Local 3804 and Federal
Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 
217, 229-230 (1981), in which the Authority found that a proposal
requiring that data concerning work studies be provided to the
union was a negotiable procedure. On the other hand, if the
intent of the proposal is to give the Union a right to be
directly involved in the development and implementation of the
selection process, the proposal is nonnegotiable because it
directly interferes with the Agency's right to determine its
internal security practices under section 7106(a)(1). See, for
example, National Federation of Federal Employees. Local 1363 and
U.S. Army Garrison, Yongsan, Korea, 15 FLRA  134 (1984). There is
nothing in the record for us to base a decision as to which
interpretation is consistent with the Union's intent. Therefore,
we will dismiss the petition for review because the Union has not
created a record on which we can determine which interpretation
is applicable and, thereby, assess the negotiability of the
proposal. See the discussion at Proposal 4 above.

     XI. Proposal 10

     Section 18. Every effort will be made to insure proper chain
of custody of all samples. At a minimum the sample will be
divided for the purpose of the employee to retain his or her
portion with instructions for proper storage provided. In the
event of a confirmed positive the employee's retained portion
will be confirmatory tested. Both confirmatory test (sic) must
match before proposing adverse action against the employee.

     (Only the underlined portion is in dispute.) 

     A. Positions of the Parties

     The Agency contends that Proposal 10 is outside the duty to
bargain under section 7106(b)(1) because it concerns the specific
techniques the Agency will use in conducting drug testing and
thus concerns the means of performing its work. The Agency also
contends that the proposal directly interferes with management's
right under section 7106(a)(1) to determine its internal security
practices by prescribing a specific investigative technique. The
Union did not address this proposal in its petition for review or
in its response to the Agency's statement of position.

     B. Discussion

     We conclude that the first two sentences of the disputed
portion of Proposal 10 are negotiable procedures and that the
last sentence is outside the duty to bargain under section
7117(a)(1) because it is inconsistent with Executive Order
12564.

     The first two sentences of Proposal lo are similar to
Proposal 6 above, which we found to be a negotiable procedure
because it did not directly interfere with management's rights
under section 7106(a)(1) to determine its internal security
practices or under section 7106(b)(1) to determine the methods
and means of performing its work. We also found that the Agency
had not shown that Proposal 6 was inconsistent with an Agency
regulation for which a compelling need exists. Consistent with
our decision as to Proposal 6, which also required retention of a
portion of the employee's urine sample and confirmatory testing
of that portion of the sample, we find that the first two
sentences of Proposal 10 are negotiable procedures under section
7106(b)(2) of the Statute.

     The last sentence of Proposal 10 requires that a
confirmation of the retained portion of the initial sample must
match the confirmatory test of the initial sample before the
Agency may propose any adverse action against an employee. The
effect of this sentence is to preclude the Agency from proposing
an adverse action against any employee whose initial positive
test result has been confirmed unless the retained portion of the
initial sample also is confirmed as positive. This sentence is to
the same effect as Proposal 11 in U.S. Army Armament, Munitions
and Chemical Command. We found that Proposal 11, which required
that test results be withheld from management until
four positive confirmatory tests had been obtained, thereby
precluded management from taking action again