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39:0437(34)NG
The decision of the Authority follows:
39 FLRA No. 34
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
GRAPHICS COMMUNICATIONS INTERNATIONAL UNION
LOCAL 98-L
(Union)
and
U.S. DEPARTMENT OF DEFENSE
DEFENSE MAPPING AGENCY
HYDROGRAPHIC TOPOGRAPHIC COMMAND
WASHINGTON, D.C.
(Agency)
0-NG-1825
DECISION AND ORDER ON NEGOTIABILITY ISSUES
February 8, 1991
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) by the Union. The appeal concerns two proposals relating to the Agency's Drug-Free Workplace Plan.(2) Proposal 1 would preclude the Agency from subjecting an employee to more than one random drug test during a calendar year. Proposal 2 provides that employees who volunteer to be tested and who test negative would be exempt from the random drug testing program for the remainder of the same calendar year.
We find that Proposals 1 and 2 are nonnegotiable because they would directly and excessively interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
II. The Proposals
Proposal 1
4. Once a Unit employee has been tested through the random drug testing program and passes cleanly, if his or her name should appear again within the same calendar year to be randomly tested again the employee will not be tested again and another employee's name should be randomly selected in his or her place. This policy will save the government from repeatedly testing and wasting taxpayers money testing clean employees and allow the government to test another employee who may not be clean of drugs.
Proposal 2
5. The Agency should utilize a system of people who want to volunteer to be tested to clear themselves and their employer's conscious [sic] as to their innocence of illegal use of drugs. For the Agency to deny this approach will have an adverse affect [sic] upon future hires and current employees who feel the random test approach is an invasion of their privacy and personal freedom. Under this system, the volunteers would be omitted from the random drug testing procedures in light of their willingness to prove to their employer their own innocence without further cost to the Agency if they are clean and have the possibility of being selected randomly within the same calendar year.
A. Positions of the Parties
1. Agency
The Agency claims that Proposals 1 and 2 are nonnegotiable because they "directly and excessively" interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Agency's Statement of Position (Agency's Statement) at 2.
The Agency explains that it is a "Combat Support Agency" and that its mission is to "enhance national security and support our strategy of deterrence by producing and distributing" to the military forces "complete, credible, effective, and usable mapping, charting and geodetic products, services and training, at the right place, in the right quantity and at the right time." Id. at 3. The Agency states that the accomplishment of its mission involves the "production and distribution of maps, charts, precise positioning data and digital data for strategic and tactical military operations and weapons systems guidance." Id. The Agency states that to accomplish this mission it "employs people with a broad range of skills in the fields of cartography, geodesy, geology, physical geography, hydrography, astronomy, oceanographic, remote sensing, photogrammetry, surveying, optics, photo interpretation, multispectral exploitation soft-copy image processing/analysis, and mathematics." Id. According to the Agency, these positions "require a background investigation with Top Secret Clearance and access to Sensitive Compartmented Information." Id. The Agency concludes that because these employees are "assigned to highly sensitive positions," it is "imperative" that they "refrain from illegal drug use." Id.
The Agency states that as a part of its program to test employees in certain sensitive positions for illegal drug use, it has decided "to conduct these tests periodically without prior announcement to employees." Id. According to the Agency, the purpose of these random tests is "to assure fitness for retention in sensitive jobs, to identify drug abusers in sensitive jobs and to identify individuals in sensitive jobs whose drug abuse could cause disruption in operations or errors in critical defense products, destruction of property, threats to safety for themselves or others, or the potential for unwarranted disclosure of classified information through drug-related blackmail." Id. at 3-4.
The Agency interprets Proposal 1 as requiring that "once an employee [has] been tested under random drug testing procedures and the test results [are] negative, that employee would be exempt from further random testing for the remainder of the calendar year." Id. at 4. As to Proposal 2, the Agency contends that, although the proposal "is less than a model of clarity," the effect of the proposal is "that employees who volunteer to be tested and who test negative would . . . be exempt from random testing for the remainder of the calendar year." Id. The Agency contends that the proposals would expressly limit its right to test employees by deferring drug tests for as much as 1 year. The Agency argues "such delays would thwart the purpose and effect" of its internal security practice "to randomly test employees for illegal drug use." Id.
The Agency argues that the intent of random testing is to "inhibit" employees from using illegal drugs and that the accomplishment of that purpose "depends upon employees knowing that they could be selected for testing at any time without prior notice." Id. The Agency claims that the proposals would defeat the purpose of the random drug testing plan because they "would allow employees, once they had tested negative, to use illegal drugs for the remainder of the calendar year without fear of detection under random selection and testing procedures." Id. The Agency concludes that, because the proposals would limit, and in some cases foreclose for long periods of time, management's ability to conduct random testing, the proposals would "directly and excessively interfere" with management's right to determine its internal security practices. Id. at 5.
2. Union
The Union states that the purpose of Proposal 1 is "to only test an employee once in a year[']s time[,] instead of the numerous tests as proposed by management if the employee[']s name should come up in the random selection process to be utilized by the Agency." Letter dated March 20, 1990, attached to the Petition for Review at 1. The Union explains that Proposal 2 would "automatically" remove the names of employees who volunteer for a drug test "from the random computerized program being used to draw names" for subsequent testing. Id. at 2. The Union concludes that the proposal "would eliminate useless implementation of the random process if the employee tested cleanly, for a period of one year from the date of the voluntary test." Id.
The Union states that Proposal 1 "is not an attempt to allow employees to use illegal drugs once they have been randomly tested[.]" Union's Response at 2. Rather, the Union contends, the proposal is merely a procedure prescribing "the number of random drug tests to which an employee will be subjected . . . within a one calendar year time period." Id. The Union argues that Proposal 1 does not affect the Agency's "decision to select employees randomly to be tested." Id. The Union contends that the proposal concerns the procedures by which employees will be selected for random testing, because "[r]andom drug-testing by definition is a procedure by which names can be selected . . . [,] as is any other form of selection process whatever the format." Id.
The Union argues that Proposal 1 would not jeopardize the Agency's need to test employees without prior notice "because at the beginning of the year all employees would fall into that category." Id. The Union also argues, based upon that fact, that the proposal would not defeat the purpose of the random drug testing program. Because Proposal 1 concerns the selection process for random testing and does not "preclude or prevent" random drug testing, the Union concludes that the proposal is negotiable under section 7106(b)(2) of the Statute. Id.
The Union contends that Proposal 2 "is clear and concise in that it will allow [G]overnment employees a different avenue of proving their innocence of illegal drug use." Id. at 2-3. The Union notes that the Agency has indicated that management will randomly test approximately 33 employees a month. The Union argues that if some employees are selected three or four times a year for random testing, only 300-400 employees a year "out of a total population of approximately 3000 employees" would be tested. Id. at 3. The Union concludes that if the Agency were to follow Proposal 2, "the employees who volunteer would reduce the population within the computer . . . [,] making it possible to test even more employees some of whom might use illegal drugs." Id.
The Union notes that the Agency's drug testing plan includes "a volunteer testing plan . . . but does not eliminate the employees from the random testing process for [their] willingness to volunteer." Id. The Union claims that an employee should receive "some kind of benefit for coming forward to take the volunteer drug test." Id. The Union explains that, under Proposal 2, an employee would "take the volunteer test at the [G]overnment's earliest convenience, say February, and then be excluded until the end of the calendar year . . . from being selected under the random selection process." Id. The Union notes that "[b]y waiting until February to test the employee, the employee would have been eligible for at least the month of January for the random selection process." Id.
The Union concludes that Proposal 2 would not "limit the [A]gency's ability to conduct drug testing of employees for long periods of time any more than the random testing procedures [would] if an employee's name should never come up on the computer." Id.
B. Analysis and Conclusions
We find that Proposals 1 and 2 are nonnegotiable because they directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute and because they do not constitute "appropriate arrangements" under section 7106(b)(3).
By their terms, and as explained by the Union, Proposals 1 and 2 would limit the number of times during a calendar year that certain employees could be subjected to a random drug test. In particular, Proposal 1 would preclude the Agency from subjecting an employee to any further random drug tests during a calendar year when that employee tests negative on a random drug test. Proposal 2 would preclude the Agency from subjecting an employee to any further random drug tests during a calendar year when that employee volunteers for a drug test and the result of the voluntary test is negative.
Proposals that limit the number of times during a year that an employee may be subjected to a random drug test directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute because such proposals restrict management's ability to test employees for illegal drug use on a random basis. American Federation of Government Employees, AFL-CIO, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA No. 97 (1990), slip op. at 5 (Fort Leavenworth) (Member Talkin dissenting) (proposal providing that employees subject to random testing will normally only be subject to two random tests each year held to directly and excessively interfere with management's right to determine its internal security practices). Consequently, because Proposals 1 and 2 would limit the number of times during a calendar year that employees who test negative on a random drug test or on a voluntary test can be subjected to random testing, we find, consistent with Fort Leavenworth, that the proposals directly interfere with management's right to determine its internal security practices under section 7106(a)(1).
We reject the Union's description of Proposal 1 as a "procedure by which names can be selected" for random testing. Union's Response at 2. By the Union's own admission, Proposal 1 prescribes "the number of random drug tests to which an employee will be subjected . . . within a one calendar year time period." Id. The proposal would preclude the Agency from requiring an employee to undergo a random drug test when that employee had already tested negative on a random drug test within the current calendar year. The effect of the proposal, therefore, is substantive and not procedural: the proposal restricts management in the conduct of random drug tests to one test where the employee has, within the calendar year, tested negative on a random test.
As to Proposal 2, we note the Union's reference to the fact that the Agency's drug testing plan includes "a volunteer testing plan" and the Union's argument that an employee should receive "some kind of benefit for coming forward to take the volunteer drug test." Id. at 3. Section 3(b) of Executive Order 12564 requires Federal agencies to "establish a program for voluntary employee drug testing." See also Federal Personnel Manual (FPM) Letter 792-19, Section 3(b). The Executive Order, however, does not protect employees who volunteer to be tested from further testing under any of the other authorized testing procedures, such as random testing, reasonable suspicion testing, or post-accident testing. Instead, Section 5(b) of the Executive Order precludes an agency from taking disciplinary action against an employee who is identified as using illegal drugs after undergoing a voluntary test, who obtains appropriate counseling and rehabilitation, and who thereafter refrains from use of illegal drugs. See also FPM Letter 792-19, Section 5(d).
We also note the Union's contention that, by delaying implementation of voluntary testing until some period after the beginning of the calendar year, the Agency would be able under Proposal 2 to conduct random tests during that period on employees who have volunteered to be tested. Even assuming that employees who had volunteered to be tested were included among the employees who were selected for random testing during that period at the beginning of the calendar year, that fact would not be sufficient to render the proposal negotiable. Because the proposal would preclude the Agency from randomly testing for the remainder of the calendar year an employee who tested negatively on a voluntary test, the proposal constitutes a substantive limitation on management's right to determine its internal security practices. The opportunity to test randomly for a limited period under the proposal does not mean that the limitation on the exercise of management's right to determine its internal security practices by conducting random tests during the remainder of the calendar year is any less of a substantive restriction on that right.
Finally, we find that Proposals 1 and 2 do not constitute "appropriate arrangements" within the meaning of section 7106(b)(3) of the Statute. To determine whether the proposals constitute appropriate arrangements, we must determine whether the proposals are (1) intended to be "arrangements" for employees adversely affected by the exercise of a management right, and (2) "appropriate" because they do not excessively interfere with the exercise of management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). Based on the Union's statements that the proposals would benefit employees who have tested negative on a random test or who have volunteered to be tested by protecting them from further random testing, we find that the proposals are intended to be "arrangements" for employees adversely affected by the Agency's drug testing program. We conclude, however, that they do not constitute "appropriate" arrangments within the meaning of section 7106(b)(3).
Because the proposals would have the effect of immunizing employees who have tested negative on a random or voluntary test from further random testing for the remainder of that calendar year, the proposals would significantly reduce the effectiveness of random testing as a deterrent for those employees. See Fort Leavenworth, slip op. at 6. Moreover, by limiting the number of times during a calendar year that those employees may be randomly tested, the proposal would reduce the effectiveness of random testing as a means for detecting illegal drug use. In our view, the reduced effectiveness of the drug testing program which would result from the proposals outweighs the benefit to employees of not being subject to random drug testing for a portion of the year. We conclude, therefore, that the proposals would excessively interfere with management's right to determine its internal security practices and that the proposals do not, therefore, constitute appropriate arrangements under section 7106(b)(3).
Accordingly, we conclude that Proposals 1 and 2 are nonnegotiable.
III. Order
The petition for review is dismissed.
Opinion of Member Talkin, Concurring as to Proposals 1 and 2.
I agree with my colleagues that the proposals in this case directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute, and that they are not appropriate arrangements under section 7106(b)(3) of the Statute. I write separately, however, to explain why I believe that the proposals in this case differ from Proposal 1 in American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA No. 97 (1990) (Fort Leavenworth), on which the majority relies and in which I dissented in part.
Proposal 1 in Fort Leavenworth would have "normally" limited employees to two random drug tests each year. In my view, that proposal constituted an appropriate arrangement because, at a minimum, it allowed the agency to test any of its employees twice a year on a random basis and did not restrict the agency from randomly testing employees more often if it had a reason to believe that such testing would uncover drug abuse. In contrast, the proposals at issue in this case preclude any additional random testing during an entire year of all employees who have been tested once on a random or voluntary basis if the results of those tests were negative. I agree with my colleagues that such a restriction, which applies a severe limitation on the Agency's ability to test employees for current drug use and allows for no exceptions, would reduce the effectiveness of random testing as a means for detecting illegal drug use, and, therefore, would excessively interfere with management's right to determine its internal security practices.
In reaching this conclusion, however, I do not rely, as does the majority, on the fact that the proposals might reduce the effectiveness of random testing as a deterrent to future drug use by the employees. As I stated in my dissent in Fort Leavenworth, I do not believe that an agency has an unqualified right to seek to deter drug use by its employees. 38 FLRA No. 97, slip op. at 18-19. Rather, I agree with a recent decision of the Court of Appeals for the District of Columbia Circuit that the Government may not "justify drug testing procedures that intrude upon constitutionally protected privacy interests with speculation about possible future job impairment or rules violations." NTEU v. Yeutter, 918 F.2d 968, 974 (D.C. Cir. 1990).
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Member Talkin's separate concurring opinion as to Proposals 1 and 2 is set forth after the majority opinion.
2. The Union withdrew a third proposal, Proposal 18, and that proposal will not be considered in this decision.