39:0557(45)NG - - AFGE Local 3407 and DOD, Defense Mapping Agency, Hydrographic-Typographic, Washington, DC - - 1991 FLRAdec NG - - v39 p557
[ v39 p557 ]
The decision of the Authority follows:
39 FLRA No. 45
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE MAPPING AGENCY, HYDROGRAPHIC-TOPOGRAPHIC
DECISION AND ORDER ON NEGOTIABILITY ISSUES
February 14, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter 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). It involves two proposals concerning drug testing.(1)
We find that the first two sentences of Proposal 2 are negotiable. We dismiss the petition for review concerning the third sentence of Proposal 2, which requires that a qualified professional teach the classes, because it directly interferes with management's right to assign work. Proposal 3, which requires that the Agency fulfill its bargaining obligations before undertaking drug interdiction responsibilities, is within the duty to bargain.
II. Proposal 2
DMAHTC will provide classes for all bargaining unit members subject to testing. The classes will explain drug testing, the accuracy of the tests, what will and will not show up as a positive, and provide a question-and-answer period. Only a qualified professional will teach this course.
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposal 2 is nonnegotiable because it directly interferes with management's rights to assign employees under section 7106(a)(2)(A) of the Statute and to assign work and contract out under section 7106(a)(2)(B). Further, the Agency asserts that Proposal 2 is negotiable only at the Agency's election under section 7106(b)(1).
The Agency argues first that "proposals requiring [an] agency to provide training are outside the duty to bargain because the assignment of training constitutes the assignment of work." Statement of Position at 7. Further, the Agency asserts that the effect of the first two sentences "would be to require management to provide specific training which is unrelated to management[']s needs." Id. at 8. The Agency argues that Proposal 2 "specifies the type, content and subject matters which must be included in the training classes." Id. In addition, the Agency argues that Proposal 2 would eliminate management's discretion to determine that "information to employees about the Drug-Free Workplace Plan [should be provided] through alternative means[.]" Id.
The Agency asserts, citing Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989), that the last sentence of Proposal 2 directly interferes with management's rights to assign work and contract out training under section 7106(a)(2)(B) by requiring that the Agency assign the conduct of training classes "only to certain qualified employees" or "contract out this work only to personnel who are 'qualified professionals.'" Id. at 7. Further, the Agency argues that the last sentence of Proposal 2 is negotiable only at the Agency's election under section 7106(b)(1) because it "limits the employees the Agency could use to conduct this training," and thus "is determinative of the 'types' of employees and positions that could be assigned this function." Id.
2. The Union
The Union asserts that Proposal 2 is intended "to inform employees about the drug-testing program and to provide information about the adequacy and accuracy of the program for the purpose of allaying undue fears." Reply Brief at 9. Additionally, the Union asserts that Proposal 2 "is a procedural matter . . . ." Id. at 3.
The last sentence, according to the Union, is to "assure that the information is accurate and credible." Id. at 10. The Union argues that the requirement that a "qualified professional" teach the classes "does not designate who the person will be, nor does it specify what the qualifications will be, and, therefore, leaves the assignment and determination of qualifications up to management." Id.
B. Analysis and Conclusions
1. The First Two Sentences
The first two sentences of Proposal 2 require the Agency to provide unit employees who are subject to drug testing with classes, including question and answer periods, which explain: (1) drug testing, (2) the accuracy of drug tests, and (3) what "will and will not show up as a positive[.]"
The Union states that the intent of the first two sentences is to inform employees about drug testing. As the Union's statement is consistent with the wording of the proposal, we adopt it for the purposes of this decision. Moreover, consistent with the statement of intent, we reject the Agency's argument that the first two sentences of Proposal 2 directly interfere with the Agency's right to assign work because they require the Agency to train employees.
It is clear, in this regard, that the Authority long has held that an agency's right to assign work encompasses the right to train, or not train, employees. See, for example, International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438, 439 (1980) (proposal precluding the agency from assigning training sessions or drills at certain times and on certain days held to interfere with the agency's right to assign work). The Authority has not defined "training."(2) Most of the Authority decisions on this point, however, address proposals requiring an agency to provide, or seek to limit or preclude the agency from providing, employees with instruction on how to perform various duties and responsibilities. See, for example, National Federation of Federal Employees, Local 1437 and United States Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1053-57 (1990) (proposal requiring the agency to provide employees with specific training "to prepare them for their duties to represent the bargaining unit in safety and health-related matters" held to interfere with right to assign work); American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1064-65 (1988) (proposal requiring agency to provide employees with "cross training" in duties of different positions held to interfere with right to assign work) 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). As such proposals have been held to directly interfere with the agency's right to assign work, the proposals have been found negotiable only if they constituted appropriate arrangements under section 7106(b)(3) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1114-16 (1988) (provision requiring the agency to provide training to employees whose jobs were abolished because of technological change held to constitute an appropriate arrangement).
On the other hand, the Authority also has held that proposals requiring only that an agency provide employees with information, or notify employees of various actions, do not directly interfere with management's rights and are negotiable as long as the proposals concern conditions of employment and do not require the release of information which otherwise is protected. See, for example, National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 637-40 (1990) (proposal requiring the agency to issue security alerts notifying employees of certain matters held to concern conditions of employment and not to interfere with agency's rights under section 7106); National Federation of Federal Employees, Local 1263 and Defense Language Institute, Presidio of Monterey, California, 29 FLRA 61, 69-71 (1987) (proposal requiring agency to issue periodic policy statements regarding certain matters held to constitute a negotiable procedure); American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 25 FLRA 16, 21-23 (1987) (proposal requiring agency to provide information relating to performance standards and elements held not to interfere with management's rights under section 7106).
Proposals requiring agencies to inform employees about aspects of drug testing programs also have been found negotiable. In 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, 97-99 (1988) (Bureau of Prisons), for example, the Authority found negotiable a proposal which, as relevant here, required the agency to inform employees as to the drugs or classes of drugs for which they were to be tested. See also 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) (proposal requiring agency to inform employees as to consequences of enrolling in employee assistance programs held not to interfere with management's rights under section 7106 of the Statute).
More recently, in American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA No. 89 (1990), request for reconsideration as to other matters pending (Department of Education), the Authority addressed proposals requiring the agency to provide employees with information relating to the agency's drug testing program. In particular, the Authority found that no interference with management's rights under section 7106 of the Statute resulted from proposals requiring the agency to inform employees as to: (1) the consequences of a positive result or a refusal to cooperate (proposal 4, section D); (2) opportunities to submit supplemental medical documentation to support the legitimate use of specific drugs (proposal 4, section E); (3) the availability of drug abuse counseling and referral services (proposal 4, section F); (4) rights to union representation during various phases of the drug testing process (proposal 4, section G); (5) rights to receive copies of records and related information concerning drug tests (proposal 6, section E); and (6) consequences of refusing to participate in counseling or rehabilitation programs (proposal 7, section A).
There is no substantive difference between the information Proposal 2 would require the Agency to provide employees and the information encompassed by the proposals in Department of Education and Bureau of Prisons. That is, we have no basis on which to conclude, and no assertions, that the disclosure of information relating to the accuracy of drug tests and "what will and will not show up as a positive" violates any law, rule, or regulation. Compare Department of Education, slip op. at 23 (requirement that agency provide "details of the operation of its random selection program and to explain to the employee how that program resulted in [an employee's] selection or to divulge the sources of information which led management to suspect that the employee used illegal drugs" would be nonnegotiable). Moreover, matters relating to an agency's drug testing program unquestionably concern conditions of employment. We conclude, therefore, that requiring the Agency to provide employees with the information encompassed by Proposal 2 is negotiable.
The disputed proposals in Department of Education required the agency to provide employees with information in writing. Unlike those proposals, Proposal 2 specifies that information must be provided to employees in "classes." The third sentence of the proposal also refers to the person to "teach this course." We conclude, however, that the requirement that the information be provided by a teacher in classes does not necessitate a conclusion that the proposal requires the Agency to train employees.
It is clear that the classes do not, and are not intended to, encompass instruction of employees in any facet of their duties and responsibilities. That is, the classes are not intended to teach employees how to do anything related to their work. There is no indication, for example, that the classes are designed to teach employees who have responsibilities in the drug testing program how to accomplish those responsibilities. Moreover, nothing in the information is intended directly to affect, or would affect directly, employees' work performance. When measured against the statutory definition of training previously noted (n.2), for example, there is no indication that the information is intended to "increase the knowledge, proficiency, ability, skill and qualifications" of unit employees "in the performance of official duties[.]" 5 U.S.C. º 4101(4). Instead, as plainly worded and consistent with the Union's statement of intent, the classes constitute only the vehicle by which information is conveyed to employees.
With respect to the latter point, and as noted previously, the relevant disputed proposals in Department of Education required the agency to provide information in writing. As such, the disputed proposals specified the form in which the information was to be provided. Similarly, Proposal 2 specifies the form--albeit a different form from that in Department of Education--in which the information is to be provided. We have no basis on which to conclude, however, that management's rights under section 7106 of the Statute include the right to determine the form in which information, which is otherwise disclosable and negotiable, is to be conveyed to employees.
We conclude also that the requirement that the information be conveyed in classes does not otherwise mandate a conclusion that the proposal directly interferes with the Agency's right to assign work. We note that the proposal does not require the classes to be held during duty time. The proposal also does not require the Agency to direct employees to attend the classes. It is not apparent, in this regard, that a requirement that an agency make classes available to employees during their non-duty time, as scheduled by the agency, would interfere with the agency's right to assign work.
Even interpreting the proposal as requiring the classes to be held during duty time, however, we find that the proposal does not directly interfere with the Agency's right to assign work. It is clear, of course, that the time spent by unit employees attending the classes in which the information is conveyed would not be available for other uses, including the performance of the employees' assigned duties. That is, attending the classes would take time. It is equally clear, however, that everything an employee does during duty time takes time. Accordingly, to find that an otherwise negotiable proposal directly interferes with the right to assign work solely because implementation of the proposal results in the use of time, ultimately would mean that virtually all proposals directly interfere with that right.
We find no basis in the Statute for such an expansive view of the right to assign work. Moreover, in similar contexts, the courts and the Authority have refused to interpret management's rights under section 7106 in such a manner. In American Federation of Government Employees v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986), for example, the court addressed the issue of whether a proposal providing union representatives with 100 percent official time interfered with an agency's right to determine the numbers, types and grades of employees assigned to a tour of duty under section 7106(b)(1) of the Statute. In concluding that the proposal was negotiable, the court noted that any proposal for additional official time "in an efficiently run organization will require the agency to reassign work to other employees . . . ." Id. at 1529. The court continued:
In specifically providing for official time, Congress must have envisioned either some reallocation of positions or some additional hiring and hence some limitation in management's right to determine the number of employees assigned to a work project or organizational subdivision. Otherwise, the official time provision of section 7131(d) would be a dead letter.
Id. at 1529. See also American Federation of Government Employees v. FLRA, 785 F.2d 333, 338 (D.C. Cir. 1986) (court stated that "economic hardship is a fact of life in employment, for the public sector as well as the private. . . . If an employer was released from its duty to bargain whenever it had suffered economic hardship, the employer's duty to bargain would practically be non-existent in a large proportion of cases.").
More recently, the Authority addressed the extent to which a provision requiring an agency to provide notice of adverse actions, including discharges, directly interfered with the agency's rights to assign work and direct employees. The Authority concluded that the provision did not interfere with those rights:
It is clear . . . that unless the Agency placed affected employees in a non-work, pay status, the proposal would require the Agency to provide some work to employees during the [notice] period. The requirement to assign some work, however, flows solely from the requirement that the Agency provide notice of its decision to take adverse action. That is, the obvious and necessary consequence of a removal of an employee is the cessation of the assignment of work to that employee. The fact that the assignment of work ceases when an employee is removed, however, does not support a conclusion that all proposals affecting the timing of a removal action interfere with the rights to assign work and direct employees.
American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA No. 13 (1991), slip op. at 20 (emphasis in original) (Merchant Marine Academy). See also National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 368 (1990) ("[t]o conclude that a proposal or provision interferes with management's right to assign work simply because it requires an agency to take some action would completely nullify the obligation to bargain because no obligation of any kind could be placed on management through negotiations.").
Similar to the effect of the disputed provision in Merchant Marine Academy, an obvious and necessary consequence of a proposal enabling employees to attend the classes encompassed by Proposal 2 is that for the duration of the classes, the employees will not be doing other things. The substantive interference with the Agency's right to assign work, in this circumstance, is the same as that resulting from any other proposal which involves employees' use of duty time. That is, like other proposals long held negotiable by the Authority, including proposals providing employees with written information at the workplace, for example, Department of Education, Proposal 2 affects employees' use of duty time. That a proposal affects the exercise of a right, however, is not sufficient basis to find that the proposal directly interferes with that right. See Merchant Marine Academy, slip op. at 20 (Authority stated that although proposal could make it "more difficult" for agency to exercise its rights to assign work and direct employees, that difficulty did not render the proposal nonnegotiable).
For the foregoing reasons, we conclude that the first two sentences of Proposal 2 do not require the Agency to train employees and do not otherwise directly interfere with the Agency's right to assign work. Rather, the first two sentences require only that the Agency provide information, which clearly concerns conditions of employment and is disclosable, to employees. As such, and as there is no basis on which to conclude that these sentences of the proposal are otherwise inconsistent with law, rule, or regulation, they are negotiable. In view of our conclusion, we need not and do not address the extent to which all proposals relating to training directly interfere with an agency's right to assign work.
We note that the Authority has, in at least one case, considered a proposal similar to Proposal 2 as a requirement that the agency provide training to employees. In particular, in National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797, 825 (1987) (BLM, Boise District Office), proposal 16 required the agency to "conduct semi-annual . . . sessions on sexual harassment at all-employee meetings." The Authority concluded that "insofar as [the proposal] require[d] the agency to provide specific training it violates management's right to assign work and is nonnegotiable." Id. at 826. It is not clear from the Authority's decision in BLM, Boise District Office whether, or to what extent, the disputed proposal required the agency to provide instruction to employees on aspects of their jobs or other performance-related matters. However, to the extent that BLM, Boise District Office indicates that all proposals requiring agencies to conduct sessions intended to convey information to employees will be analyzed as training proposals, that decision will no longer be followed.
2. The Third Sentence
As noted previously, the third sentence of Proposal 2 requires that only a "qualified professional" conduct the classes required by sentences one and two.
Proposals that require an agency to restrict work assignments to "qualified" personnel directly interfere with the exercise of the right to assign work. See Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 537-39 (1990) (Provision 8) (provision which restricted the assignment of particular tasks to employees who were qualified or in training held to directly interfere with the right to assign work). See also American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command-Redstone Arsenal Commissary, 27 FLRA 69, 87-88 (1987) (Provision 11) (provision limiting the repair of moving operating machines while in motion or operation to qualified maintenance personnel held to directly interfere with right to assign work).
Based on the Authority cases described above, we conclude that the third sentence of Proposal 2 would directly interfere with management's right to assign work because it requires that the drug testing classes be taught by a qualified professional. In the absence of an assertion by the Union that it intended this sentence of Proposal 2 to constitute an appropriate arrangement, we conclude that it is outside the Agency's duty to bargain. Although we are constrained, in these circumstances, to find the proposal's requirement that "a qualified professional" teach the classes is nonnegotiable, we note the obvious need to have an instructor who is knowledgeable about drug testing provide information to employees. In addition, in view of our determination, we do not address the Agency's arguments concerning its rights to contract out and to determine the numbers, types, and grades of employees.
III. Proposal 3
DMAHTC will not have any drug interdiction responsibilities unless properly negotiated.
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposal 3 is inconsistent with Executive Order No. 12564 because the Order "assigns certain 'drug interdiction responsibilities' to agencies . . . ." Statement of Position at 9. According to the Agency, Section 2 of the Executive Order provides that agency plans for "achieving the objective of a drug-free workplace" shall include "[s]upervisory training to assist in identifying and addressing illegal drug use by agency employees" and "[p]rovision for identifying illegal drug users . . . ." Id.
Additionally, the Agency argues that Proposal 3 directly interferes with management's right to determine the Agency's mission under section 7106(a)(1). In support, the Agency argues that "[o]nly the Department of Defense and Defense Mapping Agency can determine what responsibilities/functions/mission are assigned or not assigned to the [Agency]." Id. The Agency also asserts that the Agency has "become significantly involved in drug interdiction activities, e.g., [the Agency] was directed by [the Department of Defense] to take action to support a request from the Drug Enforcement Administration (DEA) for selected map coverage of Colombia, Peru, and Bolivia." Supplemental Statement of Position at 2.
Further, the Agency asserts that Proposal 3 directly interferes with the Agency's right to determine its internal security practices because "[n]ational security requirements mandate that this Agency take any and all necessary actions to identify employees who use illegal drugs." Statement of Position at 10. According to the Agency, "[a]lmost all [Agency] positions require security clearances and illegal drug use can impact on employees eligibility for required security clearances." Id. at 9-10.
Additionally, the Agency argues that Proposal 3 directly interferes with management's rights to assign employees under section 7106(a)(2)(A) and to assign work under section 7106(a)(2)(B). According to the Agency, the Union's explanation of Proposal 3 would "preclude management from assigning 'police functions' or 'enforcement duties' to employees[.]" Id. at 10. Thus, the Agency argues that Proposal 3 interferes with management's right to assign employees and work.
Finally, the Agency argues that Proposal 3 "conflicts with the Agency's right to determine the type of employees who could be assigned 'drug interdiction responsibilities' under section 7106(b)(1) of the Statute." Id. Accordingly, the Agency argues that Proposal 3 is negotiable only at the Agency's election.
2. The Union
The Union argues that Proposal 3 "requires that management fulfill its statutory bargaining obligation under 5 USC º7101, et seq., when and if the decision is made to assign duties to bargaining unit employees which changes [sic] their conditions of employment." Reply Brief at 11. Additionally, the Union states that Proposal 3 would act as a "'stay' of the management action until the obligation to bargain was fulfilled[,]" and, thus, is "a procedural matter which reiterates the existing statutory obligations." Id.
B. Analysis and Conclusions
The Union asserts that the intent of Proposal 3 is to require the Agency to fulfill its "statutory bargaining obligation" before assigning drug interdiction duties to unit employees. Reply Brief at 11. The Union's statement is consistent with the language of Proposal 3. Therefore, for the purposes of this decision, we conclude that Proposal 3 requires only that the Agency bargain, as appropriate, concerning drug interdiction activity by the Agency.
The Authority has held proposals negotiable which require that agencies fulfill their obligation to bargain under the Statute. In National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513, 518-20 (1990) (Proposal 2) (NAGE and VAMC), we found a proposal negotiable which required the agency to "negotiate with the union, a voluntary system for flag placing duties on holidays." Id. at 518. We found that the proposal sought only "a commitment from the agency to negotiate further over a voluntary system for flag duties on holidays." Id. at 519. Additionally, we noted that the proposal did not require the agency "to negotiate over a future proposal that is outside the duty to bargain" and that the agency had "the right to object to the [u]nion's bargaining proposals concerning the specifics of the voluntary system when they [were] submitted." Id. at 519-20. See also American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 889-90 (1986) (Proposal 11) (AFGE and FDIC) (proposal requiring agency to bargain over proposed changes in travel regulations found negotiable).
Proposal 3 requires only that the Agency bargain to the extent required by the Statute before assigning drug interdiction duties to unit employees. Nothing in Proposal 3 compels the Agency to bargain over a proposal that is outside the duty to bargain. Consequently, because Proposal 3 requires nothing which the Agency is not already obligated to do under the Statute, we find that Proposal 3 is negotiable. See National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395-97 (1990) (National Weather Service Employees and NOAA) (discussing generally an agency's duty to bargain); NAGE and VAMC, 35 FLRA at 519-20; and AFGE and FDIC, 21 FLRA at 889-90. Finally, to the extent that Proposal 3 would require the Agency to maintain the status quo during the bargaining process, we note that, with exceptions not argued here, such a requirement is consistent with an agency's obligation to bargain under the Statute. See National Weather Service Employees and NOAA, 37 FLRA at 396.
The petition for review as to the third sentence of Proposal 2 is dismissed. The Agency shall, upon request or as otherwise agreed to by the parties, bargain concerning the first two sentences of Proposal 2, and Proposal 3.(3)
(If blank, the decision does not have footnotes.)
1. On December 14, 1989, the Authority directed the parties to file supplemental briefs addressing the applicability of Federal court decisions, issued during the pendency of this case, which involved agency drug testing programs. Subsequently, the Union and the Agency filed supplemental briefs which we have considered.
In its Supplemental Brief to the Authority, dated January 12, 1990, the Union requested that Proposal 1 be withdrawn from its appeal. We grant that request and will not consider Proposal 1.
2. We note, in this regard, that "training" is defined in 5 U.S.C. º 4101(4) as:
the process of providing for and making available to a