39:1276(111)NG - - AFGE Local 3457 and DOI, Minerals Management Service, New Orleans, LA - - 1991 FLRAdec NG - - v39 p1276

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39 FLRA No. 111

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL 3457

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

MINERALS MANAGEMENT SERVICE

NEW ORLEANS, LOUISIANA

(Agency)

0-NG-1674

DECISION

March 18, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal regarding the implementation of the Agency's drug testing program.⁽¹⁾

II. Proposal

Section 1. 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.

III. Positions of the Parties

A. Agency

The Agency contends that the proposal is nonnegotiable because it is inconsistent with Executive Order 12564 and interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

Specifically, the Agency asserts that inasmuch as the term "drug abuse" as used in the proposal could be construed to mean that the program may only test employees for an "abuse" of illegal drugs but not for any usage that may not be considered an abuse, the proposal is inconsistent with section 1 of Executive Order 12564, which requires that employees refrain from "the use of illegal drugs." The Agency argues that, as the Authority has held that Executive Order 12564 constitutes "law" under section 7117(a)(1) of the Statute, the proposal is nonnegotiable under that section because the use of the term "drug abuse" in the proposal is inconsistent with law. The Agency further argues that because the proposal requires "strict" compliance with laws, rules and regulations, it is inconsistent with the sole and exclusive discretion expressly delegated by the Executive Order to the head of each agency.

The Ag