38:1068(89)NG - - AFGE, Education Council of AFGE Locals and Education, Washington, DC - - 1990 FLRAdec NG - - v38 p1068
[ v38 p1068 ]
38:1068(89)NG
The decision of the Authority follows:
38 FLRA No. 89
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DEPARTMENT OF EDUCATION COUNCIL OF AFGE LOCALS
(Union)
and
U.S. DEPARTMENT OF EDUCATION
WASHINGTON, D.C.
(Agency)
0-NG-1595
DECISION AND ORDER ON NEGOTIABILITY ISSUES
December 20, 1990
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This case is before the Authority based on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of several proposals concerning the implementation of the Agency's drug testing program.
Proposal 1 requires the Agency to establish and administer a drug testing program in accordance with the United States Constitution, applicable laws, rules and regulations and the parties' agreement. We find that Proposal 1 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
Section A of Proposal 2 precludes the random testing of employees for drug abuse except for employees designated as sensitive under Section B of the proposal. We find that the effect of section A of Proposal 2 is to preclude random drug testing of certain employees who might otherwise be subject to testing as "sensitive" employees within the meaning of Executive Order 12564. We conclude that section A of Proposal 2 is nonnegotiable because it directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. We also conclude that section A of Proposal 2 is not negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
Section B of Proposal 2 establishes the standard that the Agency must use in designating a position as "sensitive" pursuant to Executive Order No. 12564. Section B is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with Executive Order No. 12564.
Proposal 4 dictates the specific information to be provided employees 60 days prior to each drug test by the Agency. We find that Proposal 4 would preclude drug testing by the Agency on a random basis and is nonnegotiable because it directly interferes with management's right to determine its internal security practices. Because Proposal 4 could be revised to be negotiable, we also consider the subsections of the proposal and conclude that subsections D, E, F and G of Proposal 4 would be negotiable. Because subsections A, B, and C would not be susceptible to a negotiability determination, we would dismiss the petition for review as to those subsections. We conclude that subsection H would be nonnegotiable.
We conclude that section A of Proposal 5 is not sufficiently specific and delimited in form and content to permit a determination as to its negotiability.
Section B of Proposal 5 provides that urine samples will be taken in a sanitary area which accords employees privacy. We find that section B of Proposal 5 is consistent with the final Mandatory Guidelines for Federal Workplace Drug Testing, 53 Fed. Reg. 11970-89, and the Executive Order. We also find that we do not need to determine whether section B involves the exercise of management's right to determine its internal security practices under section 7106(a)(1) because we conclude that, even if section B were found to directly interfere with that right, section B would constitute an appropriate arrangement under section 7106(b)(3) of the Statute and is negotiable.
Section C of Proposal 5 is not in dispute. Section D of Proposal 5 requires a test of a second sample of an employee's urine after a positive reading on the original urine sample has been confirmed. We find that the record is not sufficient for us to make a negotiability determination and, therefore, we will dismiss the Union's petition of review as to section D of Proposal 5.
Section A of Proposal 6 requires the Agency to maintain strict procedures concerning the transfer and transport of employees' urine samples to assure that each employee's sample is properly identified throughout the testing process. We find that section A is a negotiable procedure under section 7106(b)(2) of the Statute.
Section B of Proposal 6 provides that the Agency shall release information concerning an employee's drug test to only those Agency officials who have an "absolute need to know." We find that there is insufficient evidence in the record for us to determine whether section B of Proposal 6 is negotiable.
Section C of Proposal 6 prevents the Agency from proposing disciplinary action against an employee until a positive urine test result has been confirmed under the procedure set forth in Proposal 5. We find that section C of Proposal 6 is negotiable.
Section D of Proposal 6 requires the destruction of any employee records concerning unconfirmed test results. We find that section D of Proposal 6 is nonnegotiable under section 7117(a)(1) because it is inconsistent with the final Guidelines.
Section E of Proposal 6 requires the Agency to inform employees of their right to receive copies of all records and related documentation concerning their drug tests. We find that section E is negotiable.
Section A of Proposal 7 provides that employees who have tested positive for drug abuse will be referred for counseling and rehabilitation. Section A also requires the Agency to inform those employees of the consequences of their refusal to participate in counseling or rehabilitation. We find that section A is negotiable.
Section B of Proposal 7 is not in dispute. Section C of Proposal 7 requires the Agency to negotiate concerning its Employee Assistance Program prior to implementation of the Agency's drug testing program. We conclude that section C is negotiable because it merely requires the Agency to negotiate consistent with its obligations under law and regulation.
Proposal 8 prevents the Agency from using consent forms to obtain assurances from employees that they will comply with the Agency's drug testing program. We find that Proposal 8 is nonnegotiable because it directly interferes with management's right under section 7106(a)(1) to determine its internal security practices. We also find that Proposal 8 is not an "appropriate arrangement" because it excessively interferes with management's right.
II. Preliminary Matters
The Agency contends that the Union's petition for review is not properly before the Authority because the Union has failed to submit a statement explaining the intent of the proposals as required by section 2424.4(a)(2) of the Authority's Rules and Regulations. The Agency states that it was unable to make an informed response to the Union's petition for review because the Union did not submit a statement of intent. The Agency acknowledges that the Union corrected the deficiency in the petition for review in its response to the Agency's statement of position. The Agency contends, however, that it has not had an opportunity to adequately respond to the Union's position because the position was stated for the first time in the Union's response. The Agency requests that the petition for review be dismissed or that the Agency be allowed to submit an amended or supplemental statement of position.
We reject the Agency's contention that the Union's petition for review is deficient. The Union has provided a satisfactory statement of meaning concerning the proposals in dispute. The Union stated in its petition for review that "[t]he intent of the proposals [is] to set procedures for the safeguarding of employees' rights." Petition for Review at 1. The Agency's statement of position indicates that the Agency was able to address the negotiability of the proposals. We find that the matters raised by the petition for review are properly before the Authority. The Agency's request that the Union's petition for review be dismissed in its entirety because of procedural defects is denied. See National Treasury Employees Union, NTEU Chapter 202 and Department of the Treasury, Bureau of Government Financial Operations, 22 FLRA 553 (1986). We also deny the Agency's request to file an amended or supplemental statement of position because we find that the record before us is sufficient for the Authority to address the negotiability of the Union's proposals.
The Agency declared Proposal 1; Proposal 5, section B; and Proposal 7, sections A and C nonnegotiable for the first time in its statement of position. The Union has addressed the negotiability of those proposals in its response to the Agency's statement of position. Therefore, we will consider those proposals as properly before the Authority. See National Federation of Federal Employees, Local 642 and Bureau of Land Management, Lakeview District Office, Lakeview, Oregon, 27 FLRA 862 (1987), enforced as to other matters sub nom. Bureau of Land Management, Lakeview District Office, Lakeview, Oregon v. FLRA, 864 F.2d 89 (9th Cir. 1988).
In its statement of position, the Agency also states that it has not declared Proposal 9 and Proposal 10 to be nonnegotiable. Agency's Statement of Position (Agency's Statement) at 7. Proposals 9 and 10 were not included in the Agency's allegation of nonnegotiability. See Attachment No. 1 to Agency's Statement at 8. The Union has not addressed those proposals in its response to the Agency's statement of position. Therefore, we dismiss the Union's appeal as to Proposals 9 and 10. In its response to the Agency's statement of position, the Union withdrew its appeal of section B of Proposal 7.
In its response to the Agency's statement of position, the Union asserted for the first time that its proposals are "appropriate arrangements" for employees adversely affected by the Agency's action. The Authority granted the Agency additional time to file a supplemental statement of position addressing the issue of whether the Union's proposals are "appropriate arrangements," within the meaning of section 7106(b)(3) of the Statute. The Agency did not file a supplemental statement of position.
Finally, during the pendency of this case, the Federal courts issued several decisions concerning agency drug testing programs. On December 14, 1989, the parties in this case, and parties in similar cases, were directed by the Authority to file supplemental briefs addressing the applicability to this case of recent court decisions involving drug testing programs. The Agency filed a supplemental brief. On February 9, 1990, the Union withdrew its petition for review concerning Proposal 3; the first paragraph of Proposal 5; sections C, E, F and G of Proposal 5; and section D of Proposal 7. Therefore, we will not consider the Union's petition for review as to those proposals.
III. Background on the Drug Testing Issue
On January 27, 1988, 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 1046 (Rock Island I) the Authority issued its lead decision and order on the negotiability of drug testing procedures. The disputed proposals in that case related to the agency's testing of selected categories of civilian employees for drug abuse. The agency appealed in the United States Court of Appeals for the District of Columbia Circuit the Authority's determinations concerning the three proposals found negotiable in Rock Island I (Proposals 3, 8 and 9).
On April 11, 1988, while Rock Island I was pending in the D.C. Circuit, the Department of Health and Human Services (HHS) issued the final Mandatory Guidelines for Federal Workplace Drug Testing, 53 Fed. Reg. 11970-89. The court granted the motion of the Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois to remand the case to the Authority to permit the Authority to further consider its decision in light of the final Guidelines. 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). The Authority issued its decision on remand on October 27, 1988. National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 33 FLRA 436 (1988) (Rock Island II), rev'd in part and remanded sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground).
In Rock Island II, the Authority discussed the content of the final Guidelines and their applicability to the collective bargaining of drug testing procedures. The Authority found that the final Guidelines are "Government-wide regulations" within the meaning of section 7117(a) of the Statute. Id. at 438-39. See also Aberdeen Proving Ground, 890 F.2d at 470 n.4. The Authority stated that section 7117(a) of the Statute provides that the duty to bargain does not extend to matters which are inconsistent with a Government-wide regulation. Therefore, because the final Guidelines constitute a Government-wide regulation within the meaning of section 7117(a)(1), they preclude negotiations on proposals that are inconsistent with those Guidelines.
We will examine the proposals in this case to determine whether, under section 7117(a)(1) of the Statute, they are inconsistent with law, the final Guidelines or any other Government-wide rule or regulation. In determining whether the proposals are nonnegotiable because they conflict with the final Guidelines, we do not rule on the validity or the merits of the final Guidelines. See Rock Island II, 33 FLRA at 439, citing American Federation of Government Employees, National Council of Grain Inspection Locals v. FLRA, 794 F.2d 1013 (5th Cir. 1986).
IV. Proposal 1
Section 44.01 General
The employer agrees that the establishment and administration of its drug abuse testing program will be done in strict compliance with the U.S. Constitution and all applicable laws, rules and regulations and this agreement.
A. Positions of the Parties
The Agency contends that Proposal 1 concerns the legality of drug testing, a matter which is beyond the jurisdiction of the Authority. The Agency asserts that the proposal is not merely a statement of general compliance with law because the word "strict" in the proposal "adds to a stat[e]ment of general compliance [and] either adds to or detracts from the negotiability of the proposal." Agency's Statement at 2-3. The Agency states that as the Union does not explain the meaning of the word "strict," "[t]he Agency must, therefore, assume that the Union intends the terms to mean more than mere compliance, perhaps by dispensing with the requirement to show 'harmful error' in some circumstances." Id. at 3.
The Union argues that Proposal 1 is negotiable because it does nothing more than require the Agency to comply with applicable laws, rules, and regulations in the administration of its drug testing program. Union's Response to Agency's Statement of Position (Union's Response) at 7-8. The Union contends, generally, that if any of its proposals are found to directly interfere with management's rights, the proposals should be considered to be "appropriate arrangements" within the meaning of section 7106(b)(3) of the Statute. Id. at 3. We will address the Union's contention in our discussion of Proposal 1 and the other proposals, where appropriate. However, we find it unnecessary to repeat the Union's general contention in the statement of the Union's position concerning each proposal.
B. Analysis
We find that, although Proposal 1 interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, Proposal 1 is a negotiable appropriate arrangement under section 7106(b)(3) because it does not excessively interfere with that right.
The Authority consistently has held that although section 7106(a) reserves to management the right to take the actions enumerated therein, management's rights under section 7106(a) must be exercised in accordance with applicable laws and regulations. See, for example, American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 31 FLRA 37 (1988). The Authority also has held that section 7106(a)(1) does not preclude a union from negotiating proposals that require an agency to comply with any applicable law, rule, or regulation or from enforcing such provisions through the negotiated grievance procedure. General Services Administration and American Federation of Government Employees, AFL-CIO, National Council 236, 27 FLRA 3 (1987) (GSA and AFGE, Council 236).
However, the recent decision of the United States Supreme Court in Department of Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA), leads us to reexamine the Authority's conclusion in GSA and AFGE, National Council 236 that the Statute does not preclude a union from negotiating proposals that require an agency to comply with applicable law, rule, or regulation when the agency exercises its rights under section 7106(a)(1) of the Statute.
In IRS v. FLRA, the Court, interpreting section 7106(a)(2), held that:
The [Statute] does not empower unions to enforce all "external limitations" on management rights, but only limitations contained in "applicable laws." Or to put the point differently, there are no "external limitations" on management rights, insofar as union powers under § 7106(a) are concerned, other than the limitations imposed by "applicable laws."
Id. at 1628-29 (emphasis in original). The Court's conclusion was based on the literal wording of section 7106(a)(2), which provides that "nothing [in the Statute] shall affect the authority of any management official of any agency . . . in accordance with applicable laws" to exercise the management rights enumerated under section 7106(a)(2).
The literal wording of section 7106(a)(1), however, does not contain a requirement that management exercise the rights enumerated in that section "in accordance with applicable laws." Given the wording of section 7106(a)(1), therefore, the logical extension of the Court's conclusion in IRS v. FLRA is that nothing in section 7106(a) of the Statute would require management, in the context of a collective bargaining relationship, to exercise its rights under section 7106(a)(1) in accordance with applicable laws. Further, consistent with the Court's conclusion, section 7106(a) of the Statute does not, standing alone, empower unions to enforce through collective bargaining any "external limitations" on the exercise of management's rights under section 7106(a)(1), including those contained in applicable laws.
An agency's decision to implement a drug testing program is an exercise of the agency's right under section 7106(a)(1) to establish internal security practices. Rock Island I, 30 FLRA at 1054-60. Consequently, we find that by requiring the Agency to exercise its rights to establish and administer a drug testing program in accordance with external legal limitations (that is, the United States Constitution, applicable laws, rules and regulations), Proposal 1 subjects the exercise of the Agency's rights under section 7106(a)(1) to the limits of applicable law and regulation. Because Proposal 1 would impermissibly limit the exercise of management's right to determine its internal security practices under section 7106(a)(1), we find that the proposal directly interferes with that right.
We have found in this case that section 7106(a) does not, by its terms, subject the exercise of management's rights under section 7106(a)(1) to compliance with applicable laws and regulations. However, section 7106(a) provides that management's authority under section 7106(a)(1) is "[s]ubject to" section 7106(b) of the Statute. That is, management's authority to exercise its rights under section 7106(a)(1) of the Statute is itself subject to subsection (b) of section 7106 of the Statute. Overseas Education Association v. FLRA, 876 F.2d 960, 965-66 (D.C. Cir. 1989) ("Section 7106(a) . . . enumerates the prerogatives reserved to management, but the immunity of these rights from the duty to bargain is '[s]ubject' to Section 7106(b)(3)." (Footnotes omitted.)). Thus, by the literal terms of section 7106, a proposal requiring management to exercise its rights under 7106(a) in accordance with "applicable law" may be negotiable if it constitutes a procedure under section 7106(b)(2) or if it constitutes an "appropriate arrangement" section 7106(b)(3).
A proposal that directly interferes with a management right does not constitute a negotiable procedure under section 7106(b)(2). National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 710 (1990) (citing Department of Defense, etc. v. FLRA, 659 F.2d 1140, 1150-52 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982)). Having determined that Proposal 1 directly interferes with management's right to determine its internal security practices, we find that it does not constitute a negotiable procedure under section 7106(b)(2).
However, the Union contends that Proposal 1 constitutes an "appropriate arrangement" under section 7106(b)(3) of the Statute. To determine whether a proposal constitutes an "appropriate arrangement," we must decide whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right, and whether the proposal is "appropriate" because it does not excessively interfere with the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National Guard).
The Union states that the proposal is "intended to alleviate the adverse [e]ffects of the exercise of a management right." Union's Response at 3. We recognize that an agency's exercise of its right to implement a drug testing program could adversely affect employees. An employee subject to drug testing whose urine specimen tests positive will be subject to certain personnel actions, including reassignment, counseling or rehabilitation, or disciplinary action depending on the employee's particular situation. See Section 5 of Executive Order No. 12564. Also, a personnel action based on drug testing results would affect the employee's reputation and future employment. The proposal attempts to mitigate the adverse consequences of the Agency's establishment of its drug testing program by requiring the Agency to adhere to the limits established in the United States Constitution, applicable laws, rules and regulations. Consequently, we find that Proposal 1 is intended as, and constitutes, an "arrangement" for employees adversely affected by the exercise of the Agency's right to determine its internal security practices, that is, its right to establish a drug testing program.
Next, we must determine whether the proposed "arrangement" in Proposal 1 is "appropriate." The proposed arrangement would require that management exercise its right in compliance with the United States Constitution and applicable laws, rules and regulations. Also, the proposal would allow challenges through the grievance and arbitration procedure to Agency actions concerning the establishment and administration of its drug testing program.
We note, at the outset, that the imposition of drug testing is not within an employee's control. While an employee has control over his or her use of illegal drugs, an employee has no control over the testing methods and the procedures to safeguard the urine specimen or to ensure the accuracy of test results. In our view, moreover, employees' interest in maintaining the protections afforded them under the Constitution and applicable laws, rules and regulations outweighs the Agency's interest in insulating its actions from challenges through the negotiated grievance and arbitration procedure. The Agency has not demonstrated that a requirement that it act in a manner consistent with laws, rules and regulations excessively interferes with its right to determine internal security practices under section 7106(a)(1). Indeed, the existence of applicable laws, rules and regulations already serves to limit agency action and indicates that an agency's interest in being able to act without regard to those provisions and without challenge to the legality of its action, such as in arbitration procedures, is negligible.
We find that, on balance, the benefits of the proposed arrangement to employees outweigh the adverse impact on the Agency's right. We conclude, therefore, that Proposal 1 does not excessively interfere with the Agency's right and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
In view of our finding in this case, we will no longer follow GSA and AFGE, National Council 236, 27 FLRA 3 (1987), to the extent that it held that a requirement in a collective bargaining agreement that the agency exercise the rights enumerated in section 7106(a)(1) in accordance with external legal limitations does not interfere with the exercise of management's rights under section 7106(a)(1) and is enforceable in arbitration. However, we note, consistent with our discussion above, that although a provision requiring an agency to exercise its rights under section 7106(a)(1) in accordance with applicable external legal limitations interferes with the agency's rights, it could constitute a negotiable procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the Statute.
V. Proposal 2
Section 44.02 Employees Subject to Testing
A. Except for employees who are designated as "sensitive" in accordance with Section B, no employee will be subject to drug testing, unless (1) there is a reasonable, articulable suspicion to believe that that employee is under the influence of illegal drugs; (2) it is part of an authorized Department investigation of a serious accident or unsafe practice; and (3) [it] is part of a follow-up to counseling or rehabilitation through an Employee Assistance Program.
B. The employer agrees that designations of "sensitive" employees pursuant to E.O. 12564 shall be done in strict accordance with applicable laws, rules, regulations and this agreement. Only employees who occupy positions within agencies at a level of responsibility that could have a direct[,] material, adverse effect on national security, law enforcement, protection of life and property, public health and safety, may be designated as "sensitive."
A. Positions of the Parties
The Agency contends that section A of Proposal 2 is nonnegotiable because it would prohibit random drug testing. The Agency states that a similar proposal was found to be inconsistent with management's right to determine internal security practices under section 7106(a)(1) of the Statute in Rock Island I, 30 FLRA at 1052-58 (Proposal 1).
In its supplemental brief, the Agency states that the United States District Court held in American Federation of Government Employees v. Cavazos, 721 F. Supp. 1361 (D.D.C. 1989) (AFGE v. Cavazos), appeal docketed, No. 89-5395 (D.C. Cir. Sept. 25, 1989), that "the Agency's random testing plan met constitutional requirements." Agency's Supplemental Brief at 3. The Agency also states that "several courts have issued decisions supporting an agency's right to conduct random testing of employees in sensitive positions under appropriate circumstances." Id. The Agency concludes that recent "court decisions concerning on and off duty impairment do not support the Union's position that its proposal [is] negotiable because [it] merely restates basic Constitutional protections." Id. at 4.
The Agency contends that section B of Proposal 2 interferes with management's right to classify positions as sensitive and, thereby, interferes with management's right to determine the numbers, types and grades of positions. The Agency also contends that the classification of a position as sensitive is specifically excluded from the scope of the statutory grievance procedure under section 7121(c) of the Statute and is not subject to arbitral or judicial review. The Agency argues that section B of Proposal 2 is, therefore, nonnegotiable because the proposals would subject the Agency's classification and internal security practice decisions to arbitral review.
The Union states that section A of Proposal 2 is "much to the same effect as Proposal 1 in [Rock Island I]." Union's Response at 9. The Union states that it is aware that the Authority found Proposal 1 in that case to be nonnegotiable because it directly interfered with management's right to determine its internal security practices. Relying on several decisions of the Federal district courts, the Union requests that the Authority reconsider its previous decisions concerning the negotiability of proposals limiting or proscribing agency programs for random drug testing.
The Union contends that section B of Proposal 2, concerning the designation of sensitive positions, is negotiable because it seeks only to have the Agency comply with Executive Order No. 12564. The Union states that the second sentence of section B "refers only to the requirements of E.O. 12564 and merely repeats the criteria of the Order for designating sensitive positions." Union's Response at 11.
B. Analysis
Section B of Proposal 2 is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with Executive Order No. 12564. We conclude that section A of Proposal 2 is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. We consider section B before section A because the disposition of section A is dependent upon the disposition of section B.
1. Section B of Proposal 2
Section 3(a) of Executive Order No. 12564 requires the head of each Executive agency to "establish a program to test for the use of illegal drugs by employees in sensitive positions." Section 7(d) of the Executive Order provides that "employee in a sensitive position" refers to: (1) an employee in a position designated by the agency head as having a sensitivity level of 2-4 under Chapter 731 of the Federal Personnel Manual (FPM) or in a position which the agency head designates as sensitive under Executive Order No. 10450; (2) an employee who is granted access to classified information or who may be granted such access under Section 4 of Executive Order No. 12356, 50 U.S.C. § 401 note; (3) Presidential appointees; (4) law enforcement officers as defined in 5 U.S.C. § 8331(20); and (5) other positions that the agency head determines involve law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence.
The Union states that the first sentence of section B "seeks to have the [A]gency comply with E.O. 12564 in the designation of 'sensitive' positions." Union's Response at 11. We find that the wording of the first sentence of section B is consistent with the Union's statement of intent and that the effect of the first sentence of section B is to require the Agency to comply with applicable laws, rules and regulations when it designates employees in sensitive positions under the Executive Order. As we stated in our discussion of Proposal 1, above, a proposal which merely requires an agency to comply with applicable law and regulation could constitute a negotiable procedure under section 7106(b)(2) of the Statute or an "appropriate arrangement" under section 7106(b)(3) of the Statute.
However, the second sentence of section B creates an exception to the first sentence by providing that only those employees who occupy positions within the Agency at a level of responsibility that could have a direct, material, adverse effect on national security, law enforcement, protection of life and property, or public health and safety may be designated as "sensitive." The terms of the second sentence of section B modify the terms of section 7(d)(5) of the Executive Order by making designation of sensitive positions under section B more restrictive than under section 7(d)(5) of the Executive Order.
The Union asserts that "[t]he second sentence refers only to the requirements of E.O. 12564 and merely repeats the criteria of the Order[.]" Union's Response at 11. We disagree. Section 7(d)(5) requires the agency head to designate as "sensitive" all employees in positions that the agency head determines involve law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence. Under the proposal, the agency head may designate as "sensitive" only employees in positions "at a level of responsibility that could have a direct[,] material, adverse effect" on national security, law enforcement, protection of life and property, or public health and safety. These are all areas specified in section 7(d)(5). The second sentence of section B, however, would not permit an agency head to designate as "sensitive" those employees in positions that involve functions requiring a high degree of trust and confidence within the meaning of section 7(d)(5).
By limiting in this manner the agency head's ability to designate sensitive positions under section 7(d)(5), the second sentence of section B establishes a class of positions which may be designated as "sensitive" positions that is more limited than the class established under section 7(d) of the Executive Order. By creating a more restricted class of positions which can be designated as "sensitive," the second sentence of section B prevents the Agency from designating as "sensitive" positions which it would otherwise be able to designate under section 7(d)(5) of the Executive Order. Therefore, by restricting the discretion of the Agency head under the Executive Order to designate positions as "sensitive," the second sentence of section B is inconsistent with section 7(d)(5) of the Executive Order.
By precluding the Agency from designating employees in sensitive positions consistent with section 7(d)(5) of the Executive Order, the proposal would exclude from the Agency's drug testing program employees who may be tested under that program in accordance with section 3(a) of the Executive Order. We find, therefore, that section B of Proposal 2 is inconsistent with Executive Order No. 12564 because it prevents the Agency from designating and, therefore, from testing employees in sensitive positions consistent with the Executive Order. Because section B of Proposal 2 is inconsistent with Executive Order No. 12564, we conclude that it is nonnegotiable under section 7117(a)(1) of the Statute.
We need not address the Union's contention that the proposal is an "appropriate arrangement" under section 7106(b)(3) of the Statute because we have found that the proposal is inconsistent with Executive Order No. 12564, which is accorded the force and effect of law. See American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1068 (1988), rev'd as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989) (order). Section 7106(b)(3) does not make negotiable a matter which is inconsistent with law other than the Statute. Id.
2. Section A of Proposal 2
Section A of Proposal 2 would preclude random testing of all employees except those designated as "sensitive" in accordance with section B of Proposal 2. We concluded, above, that section B defines the employees or positions that can be designated as "sensitive" more narrowly than does the Executive Order. Because section A restricts random testing to that more narrowly defined group, the effect of section A is to preclude random testing of some employees who may be defined as "sensitive" under the Executive Order.
By thus precluding management from testing on a random basis some employees who may be designated as sensitive, the effect of section A of Proposal 2 is similar to that of Proposal 1 in Rock Island I. Although different in scope, both proposals would preclude random testing of employees designated as "sensitive." Consequently, consistent with Rock Island I, we find that section A of Proposal 2, by precluding management from random testing of some employees in sensitive positions under the Executive Order, directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. In reaching this conclusion, we take no position concerning the extent of the Agency's right to randomly test employees not designated as "sensitive" under the Executive Order.
Additionally, by precluding management from random testing of some employees who may be designated as sensitive, section A might be viewed as a benefit to those employees. However, that benefit is obtained at the cost of protecting the security of the Agency's property, personnel, and operations from the effects of possible illegal drug use by employees in those positions. Because the employees may be designated by the Agency as "sensitive," the burden imposed on the Agency by its inability to test those employees is an increased risk to the Agency's security which outweighs the benefit to employees. Consequently, for the reasons set forth in Rock Island I, we conclude that Section A is not an "appropriate arrangement" under section 7106(b)(3) of the Statute because it excessively interferes with management's right to determine its internal security practices. See Rock Island I, 30 FLRA at 1057-58.
VI. Proposal 4
Section 44.04 Notification to Employees
In the event drug testing is required, 60 days before the implementation of the program and prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
A. The reasons for ordering the drug testing;
B. How the employee was selected for the test;
C. The frequency or intervals [at] which they will be tested;
D. The consequences of a positive result or refusal to cooperate, including adverse action;
E. That there will be an opportunity for them to submit supplemental medical documentation to support the legitimate use of a specific drug;
F. That there will be drug abuse counseling and referral services available through the Employee Assistance Program to which he/she can voluntarily submit to prior to testing without reprisal;
G. The right to union representation on any facet concerning the matter, including but not limited to any meetings, or preparation for meetings, before, during or after the test is conducted;
H. The right to have a drug test at each step of the testing by an independent lab utilizing the same sample or a new sample.
A. Positions of the Parties
The Agency interprets Proposal 4 as requiring that the Agency provide "specific notice (presumably 60 days, however, the Union has provided no explanation of the specific notice requirement) to employees prior to each test." Agency's Statement at 3. The Agency argues that the proposal is nonnegotiable because it effectively eliminates the ability of management to conduct random testing. The Agency asserts that as all of the subparts of Proposal 4 are tied to a specific notice requirement they are nonnegotiable, "even though standing alone, certain of the proposals may otherwise be negotiable." Id. at 4. The Agency also contends that section H of Proposal 4 is inconsistent with the Agency's right to determine its internal security practices and is inconsistent with the final Guidelines.
The Union states that aside from the Union's "attack on the randomness of the testing, this proposal would not otherwise interfere with the [A]gency's alleged interest in internal security. . . . That is, in circumstances where the [A]gency does not intend a test for drugs to be random or surprise, the above procedures fall . . . within the duty to bargain." Union's Response at 13. The Union maintains that the "procedures" in Proposal 4 are similar to drug testing procedures in other cases which the Authority has found to be negotiable.
B. Analysis
Under Proposal 4, employees who are to be tested will be informed at some point prior to each test as to specified aspects of the test and the testing procedure. Proposals that provide for advance notice of a random drug test interfere with management's right under section 7106(a)(1) to conduct random testing because such proposals open up a period of time prior to the test in which employees may take actions to avoid the consequences of the test. See American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 37 FLRA No. 117 (1990) (Proposals 1-9) (Member Talkin concurring) (Minerals Management Service) (proposals requiring 24-hour advance notice of a drug test). A period of advance notice increases the risk that employees who are so disposed will be able to frustrate the purposes of the test. In short, advance notice is incompatible with the right to conduct random drug tests. Id. See also 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) (Sierra Army Depot) (Member Talkin dissenting).
As worded, Proposal 4 could be interpreted as requiring the Agency to provide the specified information to employees 60 days in advance of the date on which they will be tested for illegal drugs.(2) We note, in this connection, that the Agency interprets the proposal as requiring the Agency to notify employees 60 days in advance of a test and the Union does not dispute that interpretation. A proposal that required notice to employees 60 days prior to a drug test would be nonnegotiable because it would directly interfere with management's right to determine its internal security practices under section 7106(a)(1). See Minerals Management Service, slip op. at 5-7. To the extent that Proposal 4 is interpreted in this manner, we find that Proposal 4, as a whole, would be nonnegotiable because the 60-day notice requirement would apply to each of its subsections.
However, Proposal 4 could also be interpreted as requiring that the Agency provide the specified information to employees, but as permitting the Agency to provide that information at any time prior to a drug test. Under this interpretation, to the extent that Proposal 4 preserves management's discretion to give the specified information to employees at the time that it directs them to report to the testing site to undergo a drug test, or at any other time management determines, pursuant to its right under section 7106(a)(1), it is distinguishable from Sierra Army Depot, which required management to give employees 2 hours' notice before they were to report for a drug test.
By requiring management to provide the specified drug testing information to employees prior to the test, Proposal 4 would have the effect of putting employees on notice that they were to be tested. However, because management would have the discretion under the proposal to provide that information to employees at the time that it directed them to report for the test, the point at which employees are on notice that they are subject to a drug test would be the same as the point at which they are directed to report for the test. Consequently, the increased risk of evasive action by employees that would result from the requirement in Sierra Army Depot of 2 hours' advance notice to employees before they must report for the test would not exist. Therefore, to the extent Proposal 4 would allow management to provide the specified drug testing information to employees at the time those employees are directed to report for a drug test, the proposal would not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute by conducting random drug testing.
In reaching this conclusion, we take no position on the amount of time for notice prior to directing an employee to report for a drug test that would be sufficient to render a proposal nonnegotiable. See Sierra Army Depot. We hold only that, to the extent that Proposal 4 would allow management to provide employees the specified drug testing information at the time that management directs the employee to report for a drug test, it would be negotiable.
Each of the interpretations set forth above is equally likely. We note that the Union did not dispute the Agency's claim that the proposal "presumably" required that employees would be given notice 60 days prior to the test. Consequently, we have provided alternative dispositions of Proposal 4 to address each of the possible interpretations.
Additionally, because the proposal could be redrafted in a manner that would render the proposal negotiable, in the interest of facilitating the resolution of the parties' dispute, we will also consider the negotiability of the specific subsections of the proposal. We find that subsections D, E, F and G would be negotiable. Subsection D requires management to inform employees of the consequences of a positive drug test result or of a refusal to cooperate in the drug testing program, including the possibility of an adverse action. Proposals which require management to inform employees that they are subject to discipline because they have been found to use illegal drugs are negotiable. See American Federation of Government Employees, Local 1603 and U.S. Department of the Navy, Naval Air Station, Patuxent River, Maryland, 36 FLRA 162, 165-67 (1990) (Naval Air Station) (proposal informing employees that enrolling in an employee assistance program would not immunize them from subsequent disciplinary action held not to violate management's right to discipline or Sections 5(b) or (c) of Executive Order 12564). Consequently, consistent with Naval Air Station, we find that subsection D would be negotiable.
Subsection E requires that management inform employees that they will have an opportunity to "submit supplemental medical documentation" to demonstrate that they legitimately use a specific drug. Proposals that permit employees to submit additional medical documentation in support of a claim that a positive drug test result is explainable by use of a prescription drug are negotiable. See National Federation of Federal Employees, Local 178 and U.S. Army Aberdeen Proving Ground Installation Support Activity, 31 FLRA 226, 233-35 (1988) (Aberdeen Proving Ground Installation Support Activity), remanded sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground, Installation Support Activity v. FLRA, No. 88-1310 (D.C. Cir. July 18, 1988) (order), decision on remand, 33 FLRA 521 (1988), affirmed sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground, Installation Support Activity v. FLRA, 890 F.2d 467, 477 (D.C. Cir. 1989). See also Sections 4(b), 5(f), and 7(c) of Executive Order 12564. Consequently, consistent with Aberdeen Proving Ground Installation Support Activity, we find that subsection E would be negotiable.
Subsection F requires management to inform employees that "drug abuse counseling and referral services" will be available "through the Employee Assistance Program" and that employees can voluntarily participate in that program prior to testing without reprisal. Proposals that provide for counseling and rehabilitation services to be made available to employees who are found to use illegal drugs are negotiable. See National Treasury Employees Union and U.S. Customs Service, 31 FLRA 118, 126 (1988) (U.S. Customs Service). See also Sections 3(b), 5(a) and (b) of Executive Order 12564; Federal Personnel Manual Letter 792-19, Section 3.b, 54 Fed. Reg. 14024, 14026 (April 6, 1988). Consequently, consistent with U.S. Customs Service, we find that subsection F would be negotiable.
Subsection G requires management to inform employees that they have a right to union representation at any point in the drug testing process, whether "before, during, or after the test is conducted[.]" Nothing in section 7114(a)(2) of the Statute prevents unions from negotiating contractual rights to union representation which exceed the rights to union representation set forth in that section. See American Federation of Government Employees, AFL-CIO, Local 3354 and U.S. Department of Agriculture, Farmers Home Administration, Finance Office, St. Louis, Missouri, 34 FLRA 919, 924 (1990) (Farmers Home Administration, Finance Office) (provision requiring union representation during discussion of "opportunity to improve performance" letter held to be negotiable). See also American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 31 FLRA 95, 100 (1988).
The Agency claims that some of the subsections of Proposal 4 are nonnegotiable but it does not raise any specific objection to subsection G and we are not aware of any grounds on which to conclude that subsection G is nonnegotiable. Compare Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 358 (1986) (right to union assistance at any time, as long as such assistance did not interfere with performance of work, held to be negotiable); Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 331-32 (1987) (right to refuse to attend meeting if denied union representation held nonnegotiable); National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797, 820-21 (1987) (right to union representation at meetings with management concerning classification desk audit held to be negotiable to the extent that it required union representation at desk audits and nonnegotiable to the extent that it required the performance of work by the supervisor). Consequently, consistent with Farmers Home Administration, Finance Office, we find that subsection G would be negotiable.
Because of the lack of evidence and argument, we are unable to determine the negotiability of subsections A, B, and C of Proposal 4. As to subsection A, we are unable to determine the meaning of this portion of the proposal. The subsection may only mean that the Agency is required to state the basis on which drug testing for that employee was ordered. In that sense, the subsection is similar to the procedural requirement that employees be given notice as to the grounds on which they will be disciplined. Interpreted in this manner, the proposal would be a negotiable procedure under section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 635 (1990).
The subsection may also be interpreted, however, as requiring the Agency to justify the decision to order the employee to be tested. In this sense, the proposal would establish a substantive precondition to the imposition of the test that would be incompatible with management's right to conduct random testing. See Rock Island I, 30 FLRA at 1052-58 (testing only on the basis of probable cause held to be nonnegotiable). The Union provides no evidence or argumentation that would enable us to determine which of these differing interpretations represents the intent of the subsection. Consequently, we would dismiss the petition for review as to subsection A because the Union has not created a record on which we could assess the negotiability of the subsection.
Subsection B requires management to inform employees as to how they were selected for the test. The subsection is subject to differing interpretations and the Union has provided no explanation of its meaning. The subsection may mean that the Agency is simply required to inform employees that they have been selected for testing under the random testing program or that their selection is based on a reasonable suspicion that they use illegal drugs.
On the other hand, subsection B could be interpreted, for example, to require the Agency to provide details of the operation of its random selection program and to explain to the employee how that program resulted in his or her selection or to divulge the sources of information which led management to suspect that the employee used illegal drugs. While the former interpretation may render the subsection negotiable, the latter interpretation would mean that the proposal would be found nonnegotiable. See National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground Installation Support Activity, 31 FLRA 241, 255 (1988). Consequently, we would dismiss the petition for review as to subsection B because the Union has not created a record on which we could assess the negotiability of the subsection. Id.
Subsection C requires management to inform employees of the frequency with or intervals at which they will be tested. The subsection could be interpreted simply to require the Agency to notify employees, at the time that they are directed to report for a random drug test, that they may be subject to further random testing in the future. The subsection could also be interpreted as requiring the Agency to inform employees that they will be subject to further random testing at specified intervals, for example, every 2 months. Because we are unable to determine the Union's intent, we are unable to assess the negotiability of subsection C. Consequently, we will dismiss the petition for review as to the subsection.
Finally, we conclude that subsection H is nonnegotiable. Subsection H requires management to afford employees the right, at each step of the drug testing process, to have a second test performed by an independent laboratory using the same sample or a new sample. The Union does not explain its intent as to this subsection. Taken literally, the subsection would allow employees, "at each step of the testing," to have a second test performed by an "independent lab" on "the same sample or a new sample." At a minimum, the subsection would appear to permit an employee, at the time of the initial test and at the time of the confirmatory test--the two major steps of the testing process under the final Guidelines--to submit "the same sample or a new sample" to an independent laboratory for testing, presumably to repeat the initial test and the confirmatory test on those samples.
Interpreted in this manner, we conclude that subsection H would be inconsistent with the final Guidelines. Taken literally, in order for the independent laboratory to perform a repeat of the initial test on "the same sample," the subsection would require the certified laboratory to which the sample had been sent by the Agency to transfer the sample to the independent laboratory. Such a procedure would break the chain of custody at the certified laboratory, contrary to the provisions of the final Guidelines requiring that laboratory "to maintain control and accountability of specimens from receipt through completion of testing of results, during storage, and continuing until final disposition of specimens." Section 2.4(a)(2) of the final Guidelines. 53 Fed. Reg. 11982 (April 11, 1988). In short, in order to ensure the validity of the tests, both initial and confirmatory, the final Guidelines require the certified laboratory to maintain strict control of the sample throughout the process. Sending the sample to another laboratory is inconsistent with that requirement for strict control. Consequently, we conclude that subsection H would be nonnegotiable under section 7117(a)(1) of the Statute because it would be inconsistent with a Government-wide regulation. We take no position on that portion of the proposal pertaining to a "new sample."
VII. Proposal 5
Section 44.05 Methods and Procedures for Testing
. . . .
The employer agrees that the following procedure will be utilized to assure drug testing is reliable:
A. Upon direction of management under terms of Section 3 above, affected employees will report to the designated location to be tested.
B. Tests will be given in a sanitary, secluded area, which provides the employee with privacy.
. . . .
D. If the 2nd test confirms results of the 1st test, the employee will be notified to return to the designated site the next work day for a second test.
A. Positions of the Parties
The Agency states that section A links the requirements of Proposal 5 to "Section 3 above." The Agency contends that "it is unclear to the Agency to which section this refers[.]" Agency's Statement at 4. The Agency contends that section B of Proposal 5 conflicts with Executive Order No. 12564 because it would prohibit the presence of an observer even when management had reason to believe that the sample may have been tampered with. The Agency also argues that section B interferes with management's right to determine its internal security practices.
According to the Agency, section D requires additional tests on samples different from the sample used for the initial test. The Agency contends that, to the extent that the proposal compels testing beyond what is specified in the Executive Order and the HHS regulations, it is contrary to law and Government-wide regulation.
The Union acknowledges that in Rock Island I, the Authority ruled "identical language to be nonnegotiable." Union's Response at 14. However, the Union argues "that the terms of the first subsection . . . are flexible enough to allow for management to exercise its rights without undue interference." Id. at 14-15. The Union contends, therefore, that Proposal 5 is consistent with Executive Order No. 12564.
The Union argues that the "scientifically proven shortcomings of urine testing procedures bolsters the argument that procedures surrounding drug testing should be negotiable at least as appropriate arrangements." Union's Response at 17-18. As to the proposed procedure in section B, the Union states that the reference to "privacy" is intended to have the "normal dictionary meaning." Union's Response at 19. The Union states that the requirement for privacy "may include some intrusion as the result of a reasonable suspicion by management that an employee may attempt to invalidate or falsify the urine specimen." Id. The Union argues that the privacy provision is consistent with law, rule and regulation.
With respect to the requirement in section D of additional testing on different samples, the Union asserts that the testing can be