39:1241(107)NG - - AFGE, Dept. of Education Council of AFGE Locals and Education, Washington, DC - - 1991 FLRAdec NG - - v39 p1241



[ v39 p1241 ]
39:1241(107)NG
The decision of the Authority follows:


39 FLRA No. 107

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

(38 FLRA 1068 (1990))

DECISION ON RECONSIDERATION

March 15, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on reconsideration of the Authority's decision in 38 FLRA 1068 that Proposal 1 and Proposal 5, section B constituted "appropriate arrangements" under section 7106(b)(3) of the Federal Service Labor-Management Relations Statute (the Statute).

In 38 FLRA 1068, the Authority determined the negotiability of several Union proposals concerning the implementation of the Agency's drug testing program. The Authority found, among other things, that Proposal 1, which requires the Agency to establish and administer a drug testing program in accordance with the United States Constitution, applicable law, rules and regulations and the parties' agreement constituted an "appropriate arrangement" for employees adversely affected by the exercise of the Agency's rights under the Statute and, therefore, was negotiable.

The Authority also found that Proposal 5, section B, which provides that urine samples will be taken in a sanitary area which accords employees privacy, constituted an "appropriate arrangement" for employees adversely affected by the exercise of the Agency's rights under the Statute.

The Agency filed a motion for reconsideration of the Authority's decision as to Proposal 1 and Proposal 5, section B. The Agency claimed that it was unaware of the Authority's Order granting the Agency an opportunity to file a supplemental statement of position addressing the Union's contention that the proposals were "appropriate arrangements" within the meaning of section 7106(b)(3) of the Statute. The Agency asserted that the request for reconsideration should be granted because it had been unable to address the "appropriate arrangements" arguments made by the Union in its response to the Agency's original statement of position.

Because the Authority's records did not show that the Agency was properly served with the Authority's Order, we granted the Agency's motion on January 25, 1991 to reconsider our conclusions in 38 FLRA 1068 that Proposal 1 and Proposal 5, section B constituted appropriate arrangements. We granted the Agency the opportunity to file a supplemental statement of position addressing whether Proposal 1 and Proposal 5, section B are "appropriate arrangements" for employees adversely affected by the Agency's drug testing program. The Union was granted the opportunity to respond to the Agency's supplemental submission. The Agency submitted a supplemental brief. The Union did not respond to the Agency's supplemental submission.

For the reasons stated below, we find that Proposal 1 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Further, we find that Proposal 5, section B constitutes an appropriate arrangement under section 7106(b)(3) and is negotiable.

II. 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. Agency Contentions

The Agency contends that the Authority's conclusion in 38 FLRA 1068 that Proposal 1 constitutes an "appropriate arrangement" under section 7106(b)(3) of the Statute is inconsistent with the wording of the Statute and its legislative history. The Agency also contends that the Authority's decision circumvents the Supreme Court's decision in Department of the Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA). The Agency argues that because there are no external limitations on the exercise of management's rights under section 7106(a)(1) that are enforceable by a union under the Statute, "the 'procedures' and 'arrangements' described in º 7106(b) cannot be written simply to enforce compliance with applicable laws, rules and regulations, or merely to incorporate them into a collective bargaining agreement." Agency's Supplemental Statement of Position (Agency's Statement) at 6.

According to the Agency, "[t]he question is not whether agencies of the Government must uphold the law or whether it is appropriate to do so, but rather who is empowered to enforce law against them." Id. The Agency argues that Congress "mandated that unions could not, through the grievance procedure, enforce requirements of any kind, whether or not they were contained in applicable law, pertaining to those management rights set forth in º 7106(a)(1)." Id. at 6-7 (emphasis in original, footnote omitted). The Agency asserts that if a union could enforce compliance with law "merely by calling it an 'appropriate arrangement,' a union could easily accomplish precisely what Congress prohibited." Id. at 7. The Agency maintains that "compliance with laws and regulations cannot constitute 'procedures' and 'arrangements' within the meaning of [section] 7106(b)(3)." Id. at 8.

The Agency states that in IRS v. FLRA, the Supreme Court held the proposal in that case to be nonnegotiable "for the simple reason that 'it would enable the grievance examiner to . . . dictat[e] the substantive criteria for the contracting out decision.'" Id. at 8 (citing 110 S. Ct. at 1627 n.3). The Agency asserts "[t]hat is precisely what the union's proposal would do in the present case. The proposal simply would authorize the grievance examiner to identify any law he or she considers appropriate and impose that law as the criteria by which the agency must exercise its management rights." Id. (footnote omitted). The Agency argues that "[s]ince the Authority's . . . decision in this matter is inconsistent with the Supreme Court's reasoning, as expressed in footnote 3, of the [IRS v. FLRA] opinion, that decision should be reversed." Id.

Finally, the Agency contends that Proposal 1 is not an appropriate arrangement under section 7106(b)(3) because "it describes an attempt to preclude adverse impact in the first place." Id. at 10. The Agency states that under the Statute, an employee has not been adversely affected by the exercise of a management right until the right has been exercised. The Agency argues that an employee would be adversely affected with regard to drug testing "only when his urine tested positive, that is, after the testing was complete and the positive result obtained." Id. The Agency asserts that Proposal 1 "is designed not to deal with the aftermath of the exercise of the management right, but to prevent adverse impact from occurring at all." Id. According to the Agency, "[t]his broad brush approach does not provide arrangements specifically for adversely affected employees, but for all employees, tested or not, and adversely affected or not." Id. at 11. The Agency states that "[s]ection 7106(b)(3) was not designed to achieve that purpose." Id.

B. Analysis and Conclusions

We find that the Agency's arguments concerning our application of IRS v. FLRA and our interpretation of section 7106(b)(3) of the Statute provide no basis for us to change our decision in this case. Our conclusions in 38 FLRA 1068 are based on the literal wording and structure of section 7106 of the Statute. Section 7106 unequivocally establishes that management's rights under section 7106 are "subject to" the Union's right to negotiate "appropriate arrangements" under section 7106(b)(3). See American Federation of Government Employees, Local 2782 v. FLRA, 702 F.2d 1183 (D.C. Cir. 1983) (opinion by then-Judge Scalia). The Agency claims that Congress, by the wording of section 7106(b)(3), intended management's rights under section 7106 to be subject to "appropriate arrangements" only to the extent that an "arrangement" does not enforce requirements in law. However, the limitation asserted by the Agency appears nowhere in the wording of section 7106. Therefore, we find that the Agency's interpretation of section 7106 is not consistent with the wording of that section.

On reconsideration, we reaffirm our conclusions in 38 FLRA 1068 that the Statute: (1) does not require management to exercise its rights under section 7106(a)(1) in accordance with external legal limitations; and (2) provides that management's rights under section 7106(a)(1) are "subject to" section 7106(b) of the Statute. 38 FLRA at 1076-77. Our conclusions are based on the literal wording of section 7106 and are consistent with the Supreme Court's decision in IRS v. FLRA.

The Agency contends that Proposal 1 does not constitute an appropriate arrangement because it is not designed to deal with the adverse effect of the exercise of management's right to determine internal security practices. According to the Agency, the proposal attempts to prevent an adverse impact on employees of the exercise of that right from occurring at all. The Agency argues that an employee is adversely affected by the Agency's drug testing program only when the employee's urine tests positive for illegal drug use, not by the imposition of the program itself.

In National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 840-41 (1990) (NFEC, Western Division), we found that there is no statutory basis for the conclusion that a provision which seeks to eliminate possible adverse effects is not appropriate for consideration as an appropriate arrangement. We stated that in future cases, we would analyze a proposal seeking to ameliorate the adverse effects resulting from the exercise of a management right consistent with the framework discussed in West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008 (1990). Under that framework, we first determine whether the proposal is an "arrangement" for employees adversely affected by the exercise of management rights by examining the effects or foreseeable effects on employees which flow from the exercise of those rights. Where an adverse effect is reasonably foreseeable, and the disputed provision or proposal is intended to be an arrangement for employees adversely affected, we will proceed to examine whether the provision or proposal excessively interferes with a management right. See NFEC, Western Division, 36 FLRA at 841.

In 38 FLRA 1068, we found that there are reasonably foreseeable adverse effects on employees of the exercise of the Agency's right to determine its internal security practices by implementing a drug testing program. We determined that Proposal 1 is intended as an "arrangement" for employees adversely affected by the exercise of the Agency's right. Because there were reasonably foreseeable adverse effects on employees of the exercise of the Agency's right to implement a drug testing program and Proposal 1 was intended to be an "arrangement" for employees adversely affected, we examined the proposal to determine whether it excessively interfered with management's rights. We found that, on balance, the benefits of Proposal 1 to employees outweighed the adverse impact of having to comply with applicable law, rules and regulations on the Agency's right. Therefore, we concluded that Proposal 1 did not excessively interfere with the Agency's right and was a negotiable appropriate arrangement under section 7106(b)(3). Id. at 1078.

The Agency's argument on reconsideration that Proposal 1 cannot constitute an appropriate arrangement because it addresses effects on employees of the Agency's drug testing program that are unrelated to a positive drug test result provides no basis for changing our conclusion that Proposal 1 constitutes an appropriate arrangement. Therefore, on reconsideration, consistent with NFEC, Western Division, we reaffirm our findings that: (1) there are reasonably foreseeable adverse effects on employees of the exercise of the Agency's right to determine its internal security practices by establishing a drug testing program; and (2) Proposal 1 is intended as and constitutes an "arrangement," within the meaning of section 7106(b)(3), for employees adversely affected by the exercise of the Agency's right to establish a drug testing program.

Because the Agency has presented no arguments that would change the balance of the benefits to employees as weighed against the interference with the Agency's rights, we reaffirm our conclusion in 38 FLRA 1068 that Proposal 1 does not excessively interfere with the Agency's right to determine internal security practices under section 7106(a)(1) of the Statute. Consequently, we conclude that Proposal 1 is a negotiable "appropriate arrangement" under section 7106(b)(3) of the Statute.

III. Proposal 5, Section B

Section 44.05 Methods and Procedures for Testing

. . . .

The employer agrees that the following procedure will be utilized to assure drug testing is reliable:

. . . .

B. Tests will be given in a sanitary, secluded area, which provides the employee with privacy.

A. Agency Contentions

The Agency states that "[e]ven if we accept the Authority's representation that the proposal imposes the same requirements as applicable laws, executive orders, regulations and guidelines, the proposal cannot be negotiable." Agency's Statement at 12. The Agency states that section 7106(a)(1) provides that, subject to section 7106(b), nothing in the Statute shall affect management's right to determine internal security practices. The Agency contends that application of the Supreme Court's decision in IRS v. FLRA "mandates that a proposal is non-negotiable if it would permit enforcement through the negotiated grievance procedure of a requirement imposed by external law, rule, regulation, executive order or other authority." Id. The Agency argues that because section B of Proposal 5 "implicates internal security practices" and "parrots applicable external authorities" section B is nonnegotiable. Id. at 12-13. The Agency also contends that section B does not constitute an appropriate arrangement for adversely affected employees because "this proposal's effects are not directed toward adversely affected employees, but to all those who are tested, whether or not they are adversely affected." Id. at 13.

B. Analysis and Conclusions

In 38 FLRA 1068, the Agency contended that section B of Proposal 5 was inconsistent with Executive Order No. 12564. We found that section B was consistent with the Executive Order and the final Guidelines, 53 Fed. Reg. 11, 970-89. Therefore, we concluded that "[i]f the decision to assign an observer to monitor an employee urine sample does not constitute the exercise of management's right under section 7106(a)(1), section B is negotiable because it would not directly interfere with the exercise of a management right." 38 FLRA at 1098-99. We also stated:

On the other hand, if the decision to assign an observer constitutes the exercise of management's right under section 7106(a)(1), the limitation imposed on the exercise by the incorporation of the Executive Order standard in section B would . . . directly interfere with that right. However, section B would nevertheless be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

Id. at 1099. On reconsideration, the Agency argues that our conclusion that section B would nevertheless be negotiable as an appropriate arrangement is incorrect.

The Agency repeats the arguments made with regard to Proposal 1 that the Authority misapplied IRS v. FLRA and misinterpreted section 7106(b)(3) to "permit enforcement through the negotiated grievance procedure of a requirement imposed by external law, rule, regulation, executive order or other authority." Agency's Statement at 12. Inasmuch as we have rejected those arguments, we will not address those arguments in our analysis of section B.

Also, we considered and rejected the Agency's contention that employees are adversely affected by the Agency's drug testing program only when an employee is determined to have tested positive for illegal drug use after drug testing has occurred. Therefore, we reject the Agency's contention that, "for the reasons more fully discussed with respect to Proposal 1," section B of Proposal 5 cannot constitute an "appropriate arrangement" because the "proposal's effects are not directed toward adversely affected employees, but to all those who are tested, whether or not they are adversely affected." Id. at 13.

As we found above, there are reasonably foreseeable adverse effects on employees resulting from the exercise of the Agency's right to implement a drug testing program apart from a positive drug test result. Section B of Proposal 5 is intended to alleviate adverse effects on employees which are associated with the urine collection procedures of the Agency's drug testing program. Thus, section B is intended as an arrangement for employees adversely affected by the urine collection requirements of the Agency's drug testing program. The limitation imposed on the exercise of the Agency's right by section B is imposed on the Agency by law. We conclude, therefore, consistent with our reaffirmation of our holding as to Proposal 1, that section B of Proposal 5 would not excessively interfere with the exercise of the Agency's right. 38 FLRA at 1099.

Because the Agency has provided no basis for us to change our decision in 38 FLRA 1068 as to section B of Proposal 5, we conclude that if the decision to assign an observer constitutes the exercise of management's right under section 7106(a)(1), the limitation imposed on the exercise of that right by section B of Proposal 5, nevertheless, would be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

IV. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposal 1 and section B of Proposal 5.(*)




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