38:0079(12)NG - - NTEU and Energy, Washington, DC - - 1990 FLRAdec NG - - v38 p79



[ v38 p79 ]
38:0079(12)NG
The decision of the Authority follows:


38 FLRA No. 12

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF ENERGY

WASHINGTON, D.C.

(Agency)

0-NG-1743

DECISION AND ORDER ON NEGOTIABILITY ISSUES

November 13, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a petition for review filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of two proposals regarding the implementation of the Agency's Drug Free Federal Workplace Plan.

Proposal 1 provides that employees will be tested only for marijuana and cocaine. We find that the proposal is nonnegotiable because it directly interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its internal security practices.

Proposal 2 addresses situations in which an employee is unable to provide a urine sample of sufficient volume. We find that Proposal 2 is inconsistent with section 2.2(f)(10) of the Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS), 53 Fed. Reg. 11979-89 (1988) (final Guidelines) and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

II. Procedural Matters

The Union filed a motion to supplement its August 23, 1989 Petition for Review. In the absence of any opposition from the Agency to the Union's request to file a supplementary statement, and in order to have a more complete record, we grant the Union's motion and have considered the supplement.

The Agency filed a motion to consolidate this case with Case No. 0-NG-1751, which involves the same parties as in this case. The Union filed an opposition to the Agency's motion for consolidation. The Union noted that the time limits for filing briefs and papers in this case had already passed when the Agency's motion to consolidate the two cases was filed. As there is no reason to consolidate the cases at this time, the Agency's request to consolidate this case with Case No. 0-NG-1751 is denied.

III. Proposal 1

DOE bargaining unit employees will only be tested for marijuana and cocaine.

A. Positions of the Parties

1. The Agency

The Agency contends that Proposal 1 is nonnegotiable because it violates management's right to determine its internal security practices under section 7106(a)(1) of the Statute and because it is contrary to an Agency-wide regulation for which a compelling need exists. Agency's Declaration of Nonnegotiability at 2.

The Agency asserts that any proposal that would prohibit testing is a nonnegotiable intrusion into management's reserved right to determine its internal security practices. The Agency claims that Proposal 1 is essentially a "no test" proposal, with only two specific exceptions. Id. at 1.

The Agency also asserts that Proposal 1 is inconsistent with an Agency-wide regulation for which a compelling need exists, DOE Order 3792.3, Section 4, DEFINITIONS and Chapter 1, Section 3, DRUGS FOR WHICH RANDOM TESTING WILL BE PERFORMED. Section 3 states that random testing will be performed to identify the use of the following drugs or classes of drugs: (1) Marijuana; (2) Cocaine; (3) Opiates; (4) Phencyclidine; and (5) Amphetamines. Id.

2. The Union

The Union contends that Proposal 1 is negotiable because the Agency has failed to prove a compelling need for its regulation and because the Agency has failed to establish any link between the proposal and its internal security practices. Union's Supplement at 3.

The Union states that the Authority has "consistently held that conclusory reasoning will not support a finding of compelling need." Id. The Union notes that the Authority has placed the burden of proof on an agency to prove that a compelling need for a regulation exists and that the Authority has refused to find a compelling need when an agency has failed to provide the Authority with facts and arguments bearing on the issue. The Union argues that "[t]he Agency, in the instant case, has failed to present a scintilla of evidence in support of a compelling need determination for their Agency Regulation." Id. at 4.

The Union asserts that Proposal 1 does not interfere with the Agency's right to determine its internal security practices. The Union states that the Agency has the burden of proving that a proposal directly and integrally interferes with its ability to determine and perform its internal security practices. Id. at 6-7. The Union claims that "[t]he Agency's bald assertion that the Union's proposals interfere with internal security practice, without more, cannot withstand a finding of nonnegotiability [sic]" and that "[t]here is no demonstrated nexus between the test and Agency security and therefore the Union's proposal does not constitute a direct and internal [sic] impact on the Agency's security." Id. at 10. The Union contends that because the Agency has not demonstrated a history of detected drug abuse among employees, the Agency cannot show that restricting "the number of drugs for which an employee is tested will in any way impact the Agency's internal security process." Id. The Union did not claim that Proposal 1 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) for employees adversely affected by the exercise of a management right.

The Union notes that the final Guidelines require testing only for marijuana and cocaine and asserts that its proposal limits testing of bargaining unit employees only to marijuana and cocaine. The Union states that "[b]ecause the discretion [as to] which drugs an employee will be tested [for] is left in the hands of the Agency, [the proposal] is clearly negotiable." Id. at 4-5 n.1.

B. Analysis and Conclusion

Under section 3(a) of Executive Order 12564, agencies are authorized to establish drug testing programs for employees in sensitive positions that include random testing. Under section 3(c) and (d) of Executive Order 12564, agencies are authorized to test "any employee" based on reasonable suspicion that the employee uses illegal drugs; to test for illegal drug use in connection with an accident or unsafe practice; to test as a follow-up to rehabilitation for illegal drug use; and to test "any applicant" for illegal drug use. See also the final Guidelines, Section 2.1(a)-(d).

Section 7(c) of Executive Order 12564 defines the term "illegal drugs" to mean "a controlled substance included in Schedule I or II, as defined by section 802(6) to Title 21 of the United States Code, the possession of which is unlawful under chapter 13 of that Title." Marijuana is a Schedule I drug. 21 U.S.C. º 812(c), Schedule I, (c)(10). Cocaine and opiates are Schedule II drugs. 21 U.S.C. º 812(c), Schedule II, (a)(1) and (4). Amphetamines and phencyclidine are Schedule III drugs. 21 U.S.C. º 812(c), Schedule III, (a)(1) and (b)(7). See also the final Guidelines, Section 2.1(a)-(d).

The final Guidelines state that applicant and random drug testing programs shall, at a minimum, test for marijuana and cocaine. See Section 2.1(a)(1). The final Guidelines also authorize agencies to test for opiates, amphetamines, and phencyclidine in applicant and random testing progams. See Section 2.1(a)(2). Agencies may also test, under the final Guidelines, for any drug listed in Schedule I and II when conducting reasonable suspicion, accident, or unsafe practice testing. See Section 2.1(a)(3). With the approval of the Secretary of Health and Human Services, agencies may test--when conducting random testing, reasonable suspicion, accident, or unsafe practice testing--for drugs other than those listed in Section 2.1(a) of the final Guidelines. See Section 2.1(b).

By its terms, Proposal 1 would preclude the Agency from testing unit employees--whether by random testing, reasonable suspicion testing, testing in connection with an accident or unsafe practice, or testing as a follow-up to a rehabilitation program--for use of any "illegal drug" other than marijuana and cocaine. As to the "illegal drugs" for which testing is authorized under the Executive Order, therefore, the proposal would, at a minimum, preclude any form of testing for Schedule II drugs such as opiates. As to the drugs for which testing is authorized under the final Guidelines, the proposal would preclude applicant and random testing for opiates, amphetamines, and phencyclidine. Consistent with the mandate of the final Guidelines, however, the proposal requires testing for marijuana and cocaine. In sum, of the drugs for which agencies are authorized, but not required, to test under the Executive Order and the final Guidelines, the proposal would, at a minimum, preclude the Agency from random testing for opiates, amphetamines, and phencyclidine.

We find that, under the final Guidelines implementing Executive Order 12564, the Agency is authorized to test for drugs other than marijuana and cocaine. The issues before us are whether the Agency's determination as to which drugs it will test for, and the type of testing that will be employed to ascertain whether employees are using those drugs, constitutes an exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute, and, if so, whether the limits established by Proposal 1 directly interfere with that right. For the following reasons, we find that the Agency's determination as to which drugs it will test for, and the type of testing to be used, constitutes an exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute, and that Proposal 1 directly interferes with management's right under section 7106(a)(1) to determine its internal security practices.

Management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine the policies and to take the actions which are part of its plan to secure or safeguard its personnel and physical property and to prevent disruption of its operations. See National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 625 (1990) (Environmental Protection Agency). The Authority has held that management's right to determine its internal security practices includes the right to identify the threats to security against which it will adopt measures to protect its employees, property and operations. See Environmental Protection Agency, 36 FLRA at 631. Consequently, in determining that the use by employees in sensitive positions of the drugs for which testing is authorized under the Executive Order and the final Guidelines constitutes a threat to agency security, management is exercising its right under section 7106(a)(1).(*)

Management's exercise of its right under section 7106(a)(1) also extends to the general measures it will employ to respond to the threat posed to its security by employee use of illegal drugs. Specifically, management's right to determine its internal security practices includes the decision to test employees in sensitive positions on a random basis to determine whether those employees use illegal drugs. 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 1046, 1081 (1988) (Rock Island I), remanded as to other matters sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988) (order), decision on remand, 33 FLRA 436 (1988) (Rock Island II), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground), decision on remand, 35 FLRA 936 (1990) (Rock Island III).

The Authority has concluded that there is a connection between an agency's drug testing program and the agency's security concerns regarding the use of illegal drugs because drug testing will enable agencies to identify employees whose drug abuse could result in disruption of operations, destruction of property, or threats to employee safety. See Rock Island I at 1056. See also the Preamble to Executive Order 12564. Where a link has been established between an agency's action--in this case random drug testing for those drugs for which such testing has been authorized under the Executive Order and the final Guidelines--and its expressed security concerns, we will not review the merits of that action. We find that such a linkage is present in this case. As noted above, the Authority has determined that there is a connection between drug testing programs under the Executive Order--including, specifically, random testing--and an agency's internal security concerns. See Rock Island I at 1056, citing the Preamble of Executive Order 12564.

Consequently, we conclude that management has the right to determine that, for example, employee use of the drugs for which random testing is authorized under the Executive Order and the final Guidelines--specifically, opiates, amphetamines, and phencyclidine--constitutes a threat to its internal security practices and to identify those types of drugs for random testing under its drug testing program, even if Executive Order 12564 and the final Guidelines do not require agencies to test for those types of drugs on a random basis.

To the extent that Proposal 1 would preclude the Agency from testing on a random basis for drugs, other than marijuana and cocaine, for which testing is authorized, we find that the proposal directly interferes with the Agency's right to determine its internal security practices. Management's right to determine its internal security practices under section 7106(a)(1) includes the right to determine the particular drugs, out of those for which testing is authorized, that, if used by employees, would constitute a risk to the agency's internal security practices and to decide that it will randomly test for those drugs. These drugs may be in Schedules I, II or III. Consequently, we find that the proposal is nonnegotiable. We note that the Union did not contend that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Moreover, in concluding that Proposal 1 is nonnegotiable under section 7106(a)(1) of the Statute, we find it unnecessary to address the question of whether the proposal is barred from negotiation because it conflicts with an Agency regulation for which a compelling need exists.

We hold only that the proposal is nonnegotiable because it would preclude random testing of employees in sensitive positions for drugs, other than marijuana and cocaine, for which testing is authorized under the Executive Order and the final Guidelines, including, specifically, opiates, amphetamines, and phencyclidine. We take no position on whether the proposal is also nonnegotiable because it would preclude random testing, and any other form of testing authorized by Executive Order 12564, for any other employees and for any other controlled substances for which an agency may test under specified circumstances pursuant to the final Guidelines. See the final Guidelines, Section 2.1(a)-(d).

IV. Proposal 2

An employee will be given up to five minutes to provide a urine sample. If they are still unable to give a sufficient volume of urine they will be given four hours or until the end of the work shift to provide a specimen. The employee will be allowed to return to the site while waiting to provide a specimen. If the employee is able to provide written documentation indicating a medical explanation for their inability to provide a sufficient volume of urine within twenty-four hours, they will not be subject to drug testing until their physician finds it medically acceptable. If the employee is unable to provide medical documentation and becomes subject to additional drug tests they will go to the health unit while waiting to urinate.

A. Positions of the Parties

1. The Agency

The Agency asserts that Proposal 2 intrudes into the rights of management to assign and direct employees, and to assign their work, under section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that Proposal 2 removes from the Agency's supervisors "the discretion whether and when to direct employees to remain in the specimen collection site until they have provided the adequate 60 milliliter urine specimen, to return to their duty stations till they are able to void the requisite volume of urine, or to wait in the health unit till they are able to provide medical documentation." Agency's Declaration of Nonnegotiability at 2.

The Agency claims that Proposal 2 also conflicts with management's right to determine its internal security practices under section 7106(a)(1). The Agency asserts that Proposal 2 would require the Agency to exempt employees in the bargaining unit from drug testing "for an indeterminate period until a non employee physician grants approval of such testing as 'medically acceptable.'" Id. The Agency argues that it must retain the reserved right to finally determine internal security and employee work assignments. The Agency states that "[t]he decision makers must be agents of DOE management, not bargaining unit employees themselves, and not medical personnel in the pay of those bargaining unit employees." Id.

2. The Union

The Union contends that Proposal 2 does not interfere with management's right to assign and direct employees. Rather, the Union contends that Proposal 2 merely states a negotiable procedure which is clearly within the duty to bargain. The Union argues that even if Proposal 2 has an impact on management's statutory rights, it does not have an excessive impact and, therefore, Proposal 2 is an appropriate arrangement. Union's Supplement at 10.

B. Analysis and Conclusion

By its terms, Proposal 2 would require management to permit employees who are being tested for illegal drug use to return to their worksite when they cannot, after 5 minutes, provide a sample of sufficient volume. After they have returned to their worksites, employees are to be allowed until the end of the shift, or 4 hours, to provide the requisite sample. If employees are unable to furnish medical documentation regarding their inability to provide a sample and they become subject to additional drug tests, they are to go to the health unit while waiting to urinate. On the other hand, if within 24 hours of their inability to furnish an adequate sample employees have documentation from their physician regarding their ability to urinate, they are not to be subject to drug testing until the personal physician deems it medically acceptable. Because we find that Proposal 2 is inconsistent with the final Guidelines, Proposal 2 is nonnegotiable under section 7117(a)(1) of the Statute.

The final Guidelines are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. Aberdeen Proving Ground, 890 F.2d at 469-70; Rock Island II, 33 FLRA at 438-39. The final Guidelines provide instructions to the personnel at the collection site in the event that an employee sent for drug testing cannot provide a sample of sufficient size--that is, 60 milliliters. The final Guidelines provide that the employee being tested "may be given a reasonable amount of liquid to drink for this purpose (e.g., a glass of water)." See Section 2.2(f)(10) of the final Guidelines, 53 Fed. Reg. 11981. If the employee being tested still fails to provide a sample of at least 60 milliliters, the collection site person is to contact the appropriate authority for guidance. Id.

Proposal 2 provides that if an employee is unable to provide a sample of sufficient volume after 5 minutes, the employee must be permitted to return to the worksite for up to 4 hours or until the end of the shift. In complying with the proposal, testing site personnel would be unable to detain the employee so that the employee could drink "a reasonable amount of liquid" or so that testing site personnel could obtain guidance from an "appropriate authority." By thus removing the option for testing site personnel to give the employee being tested additional liquid so as to obtain the requisite sample or the option to detain an employee who has failed to provide a sufficient sample until guidance is received from an appropriate authority, Proposal 2 is inconsistent with the final Guidelines. Because Proposal 2 is inconsistent with the requirements of section 2.2(f)(10) of the final Guidelines, it is nonnegotiable under section 7117(a)(1) of the Statute.

Because we have found that Proposal 2 is inconsistent with a Government-wide regulation and is nonnegotiable under section 7117(a)(1) of the Statute, we need not reach the question of whether the proposal constitutes an appropriate arrangement under section 7106(b)(3). The Authority will not consider whether a proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) when, as in this case, the proposal is nonnegotiable under section 7117(a)(1) and not under section 7106. See, for example, American Federation of Government Employees, AFL-CIO, Local 3232 and Department of Health and Human Services, Social Security Administration, Region II, 31 FLRA 355 (1988). Moreover, inasmuch as Proposal 2 is inconsistent with a Government-wide regulation and is nonnegotiable under section 7117(a)(1) of the Statute, we need not consider the other arguments raised by the parties. See American Federation of Government Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA No. 116 (1990) (Member Talkin dissenting) (Provision 4).

V. Order

The petition for review is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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