39:1500(133)NG - - IFPTE Local 128 and DOI, Bureau of Reclamation - - 1991 FLRAdec NG - - v39 p1500



[ v39 p1500 ]
39:1500(133)NG
The decision of the Authority follows:


39 FLRA No. 133

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNATIONAL FEDERATION OF PROFESSIONAL AND

TECHNICAL ENGINEERS

LOCAL 128

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

(Agency)

0-NG-1633

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 28, 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 under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of 12 proposals.(1)

We find that Proposal 1, which delays the implementation of the Agency's drug testing program until negotiations are completed, is negotiable because it merely restates the Agency's bargaining obligation under the Statute.

Proposal 2 requires the Agency to provide certain information concerning its drug testing program. The scope of the Agency's continuing obligation to provide information to the Union under Proposal 2 is not clear. Because the record is not sufficient for us to make a negotiability determination, the petition for review as to Proposal 2 is dismissed.

Proposal 4 would limit the operation of drug testing equipment to employees who have been trained and certified by qualified instructors before testing is started. Proposal 4 is inconsistent with the final Mandatory Guidelines for Federal Workplace Drug Testing (final Guidelines), 53 Fed. Reg. 11970-89, which are Government-wide regulations. Therefore, Proposal 4 is nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 6 prohibits the Agency from using the urinalysis test as a punitive measure against an employee. The Agency has not demonstrated that Proposal 6 is inconsistent with any law, rule, or regulation so as to render it nonnegotiable under the Statute. Accordingly, we find that Proposal 6 is negotiable.

Proposal 8 requires the Agency to provide up to 4 hours of administrative leave for an employee to take a drug test. The Agency has not demonstrated that Proposal 8 is inconsistent with any law, rule, or regulation so as to render it nonnegotiable under the Statute. Therefore, we find that Proposal 8 is negotiable.

Proposal 10 provides that urine samples that are not tested on the day that they are collected will be frozen. The proposal also states that if, after thawing, the samples show signs of precipitated salts, the specimens will be discarded and new samples taken. We find that the proposal is inconsistent with sections 2.4(c) and (i) of the final Guidelines, which are Government-wide regulations and, therefore, Proposal 10 is nonnegotiable under section 7117(a)(1) of the Statute.

Proposals 11 and 12 provide that a second drug test will be performed automatically if the first drug test result is positive. We find that the record is not sufficient for us to make a negotiability determination as to these proposals and, therefore, we will dismiss the Union's petition for review as to Proposals 11 and 12.

Proposal 13 would require the Agency, instead of firing an employee who is found to use illegal drugs, to offer that employee access to a rehabilitation program. To the extent that Proposal 13 would preclude the Agency from initiating an adverse action against an employee, that is, removal, upon a first confirmed positive drug test, we find that it directly and excessively interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and is nonnegotiable. To the extent that Proposal 13 would preclude removal of an employee upon a second confirmed positive drug test, we find that the proposal is inconsistent with Exec. Order No. 12564 and the FPM Letter and nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 14 precludes the Agency, for a period of at least 60 days, from giving a urinalysis test to an employee who is in a rehabilitation program. Although Proposal 14 is not contrary to law or Government regulation, it is nonnegotiable because it directly interferes with management's right under 7106(a)(1) of the Statute to determine its internal security practices.

Proposal 15 precludes the Agency from initiating action to remove an employee who has tested positive for illegal drug use a second time without allowing the employee a second chance at rehabilitation. Proposal 15 is inconsistent with Exec. Order No. 12564 and FPM Letter 792-19 and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 16 prohibits the Agency from testing an employee who has tested negative for the use of illegal drugs for at least a year after the date of the negative test result. Proposal 16 is nonnegotiable because it directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices.

II. Procedural Matters

The Union filed its petition for review in this case on December 13, 1988. The Union also filed concurrent unfair labor practice charges on the same issues. On March 10, 1989, processing of this negotiability appeal was suspended based on the Union's election under 5 C.F.R. º 2424.6 to proceed under the Authority's unfair labor practice procedure. The unfair labor practice charges were later withdrawn (Case Nos. 7-CA-90170-1 and 7-CA-90170-2) and the Authority resumed processing of the Union's petition for review on November 7, 1989.

On December 22, 1989, the Union was granted an opportunity to correct deficiencies in its petition for review. The Union corrected the deficiencies in the petition for review and, on February 15, 1990, the Authority informed the parties that the deficiencies had been corrected and that the Authority would process the Union's appeal. The Authority also granted the Agency 30 days from the date that the Agency head's designee received the Union's petition for review complying with the Authority's regulations to file its Statement of Position. The Agency filed its Statement of Position on February 22, 1990. The Union did not file a response to the Agency's Statement of Position.

III. Proposal 1

IFPTE proposes that management delay implementing the drug testing program until a satisfactory resolution of the negotiations is reached, including utilization of FMCS/FSIP services.

A. Positions of the Parties

1. The Agency

The Agency argues that requiring delay in implementing the drug testing program until completion of negotiations presupposes that all of the proposals are negotiable. The Agency asserts that if the Agency were required to negotiate on Proposal 1, the proposal would allow the Federal Service Impasses Panel (FSIP) to impose a settlement that would require the Agency to abandon all challenges to the negotiability of any proposal concerning implementation of the drug testing program. The Agency argues that because section 7117 of the Statute establishes the parameters and statutory limitations of good faith bargaining, Proposal 1 would establish an impermissible precondition on negotiations by precluding the Agency from raising questions concerning negotiability and defending its position before the Authority. Agency's Statement of Position (Agency's Statement) at 2.

To the extent that various other proposals are inconsistent with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, the Agency contends that Proposal 1, by delaying implementation of the drug testing program pending negotiation of nonnegotiable proposals, also interferes with management's right under section 7106(a)(1). Id.

The Agency also argues that to the extent the proposal would defer implementation of the Agency-wide drug testing program until all aspects of the bargaining process had been completed, the proposal would preclude compliance with an Agency-established implementation date and, therefore, the proposal is nonnegotiable under section 7117(a)(2) of the Statute. Id. at 3.

2. The Union

The Union states that Proposal 1 is necessary to ensure that bargaining unit members not be forced to participate in a procedure that has not been agreed upon between the Union and the Agency. Union's Petition for Review (Petition for Review) at 1.

B. Analysis and Conclusion

We find that Proposal 1 is negotiable because it merely restates the Agency's bargaining obligation under the Statute.

Proposal 1 would delay implementation of the drug testing program pending completion of bargaining, including the invocation of the processes of the Federal Mediation and Conciliation Service (FMCS) and the FSIP. We find that the proposal is no more than a restatement of the Agency's duty under the Statute to provide prior notice concerning a proposed change in conditions of employment and to bargain with the Union concerning the procedures to be followed and appropriate arrangements for employees adversely affected by the proposed change. The proposal would only require the Agency to meet its bargaining obligation under the Statute and would not prevent the Agency from exercising its rights to implement changes under the Statute. For example, the proposal would not prevent the Agency from implementing changes where those changes are consistent with the necessary functioning of the Agency or once the matters before FMCS and/or FSIP are resolved. See International Association of Machinists and Aerospace Workers, Local Lodge 2424 and U.S. Department of the Army, Aberdeen Proving Ground, Maryland, 31 FLRA 205, 214-15 (1988) (Local Lodge 2424), remanded as to other matters sub nom. U.S. Department of the Army, Aberdeen Proving Ground v. FLRA, No. 88-1311 (D.C. Cir. July 18, 1988) (order), decision on remand, 33 FLRA 512 (1988). In that case the Authority found to be negotiable a proposal which delayed implementation of the Agency's drug testing program until negotiations were completed by use of FMCS/FSIP services.

We reject the Agency's contention that Proposal 1 is nonnegotiable because it would allow the FSIP to impose a settlement in the resolution of an impasse between the parties. The possibility that the FSIP may, in fulfilling its mandated role to resolve negotiation impasses, impose a proposal on parties provides no basis for finding a proposal nonnegotiable. National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 37 FLRA 147, 154 (1990); National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 414-16 (1990).

We also reject the Agency's contention that Proposal 1 is nonnegotiable because it requires bargaining over proposals that may be nonnegotiable under section 7106(a)(1) of the Statute. As we found above, Proposal 1 is a restatement of the Agency's duty to bargain under the Statute. The Statute does not require the Agency to bargain over proposals that are nonnegotiable under section 7106(a)(1) of the Statute. Because Proposal 1 imposes a duty to bargain on the Agency that is the same as the duty to bargain under the Statute, we conclude that Proposal 1 does not require bargaining over proposals that are nonnegotiable under section 7106(a)(1) of the Statute.

The Agency has offered no support for its contention that Proposal 1 violates section 7117(a)(2) of the Statute because it "would preclude compliance with a Departmentally-established implementation date" for the drug testing program. Agency's Statement at 3. Section 7117(a)(2) provides, in relevant part, that the duty to bargain under the Statute does not extend to matters that are inconsistent with agency rules and regulations if the Authority has determined that a compelling need exists for the agency rule or regulation.

The Agency states that there is a departmentally established implementation date for the drug testing program. However, the Agency does not indicate whether the date for implementation is imposed by law, Government-wide rules or regulations, or an Agency rule or regulation for which there is a compelling need. The Agency also does not explain why compliance with the Agency's date for implementation of its drug testing program supersedes the Agency's duty to bargain under the Statute. The Agency has not identified any law, rule or regulation with which this proposal is inconsistent. Because the Agency has not established that Proposal 1 is inconsistent with Federal law, Government-wide rules and regulations, or Agency rules and regulations for which there is a compelling need, there is no basis for us to conclude that Proposal 1 is nonnegotiable under section 7117(a)(2) of the Statute.

We find that Proposal 1 is substantively the same as Proposal 8 in Local Lodge 2424. Like Proposal 8 in Local Lodge 2424, Proposal 1 is merely a restatement of the Agency's duty to bargain under the Statute. Proposal 1 does not interfere with the Agency's exercise of its right to determine its internal security practices by implementing a drug testing program. Therefore, we conclude that Proposal 1 is negotiable.

IV. Proposal 2

IFPTE proposes that [Bureau of Reclamation/Department of Interior] submit to IFPTE all information concerning the implementation of the selection process before that process is started.

A. Positions of the Parties

1. The Agency

The Agency states that Proposal 2 "is vague as to its meaning and nonspecific as to its reach and [e]ffect." Agency's Statement at 3. The Agency maintains that it cannot determine whether the Union is requesting information concerning the implementation of its drug testing program or information concerning the selection of positions within the bargaining unit designated for random testing. The Agency argues that if Proposal 2 is a request for information concerning the implementation of its drug testing program, the proposal is moot because the Agency provided the Union the information requested "prior to receipt of the instant proposals." The Agency states that "it is now unclear what is being sought." Id.

The Agency also argues that if Proposal 2 requests information concerning the selection of positions within the bargaining unit designated for random testing, it is moot because "[a]t this time, the Agency is enjoined from implementing random testing of employees in testing designated positions." Id. at 4. The Agency asserts that "the Union had previously been provided with specific information as to the basis for determining the testing designated positions within the bargaining unit designated for random testing." Id. at 3.

2. The Union

The Union states that "[t]he reason for [Proposal 2] is the same as stated in [Proposal] 1." Petition for Review at 1. According to the Union, Proposal 2 "is necessary to insure that bargaining unit members not be forced to participate in a procedure that has not been agreed upon between [the Union] and the [A]gency." Id.

B. Analysis and Conclusions

Proposal 2 requires the Agency to provide the Union with information concerning the implementation of the selection process in the Agency's drug testing program before the Agency makes selections for testing under the program. The Agency contends that Proposal 2 is moot because the Agency has provided the Union all of the information requested in the proposal.

It is not clear whether the wording of Proposal 2 merely requires the Agency to provide specifically identified information or whether the proposal creates an obligation on the part of the Agency to provide information to the Union concerning the selection of employees under the Agency's drug testing program each time the Agency implements the selection process for drug testing. Therefore, Proposal 2 is not moot.

Moreover, because the scope of the Agency's obligation to provide information under Proposal 2 is not clear, the proposal is subject to differing interpretations. To the extent that Proposal 2 is interpreted to require the Agency to provide the Union information concerning the procedures that will govern the implementation of the Agency's selection process, it would constitute a negotiable procedure. See National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground Installation Support Activity, 31 FLRA 241, 255 (1988) (Aberdeen I), remanded as to other matters 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 702 (1988), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground, Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground), decision on remand, 35 FLRA 926 (1990).

However, to the extent that Proposal 2 is interpreted to require the Agency to provide information about the criteria for selection under the Agency's drug testing program so as to allow the Union to determine the employees to be selected for testing in advance of testing, the proposal would require the disclosure of information which could allow the Union to defeat the goal of the Agency's random drug testing program and thereby directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. See National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 639 (1990) (an agency's right to determine its internal security practices includes management action to prevent improper and unauthorized disclosure of privileged or confidential information).

We cannot decide, based on the record, which of the above interpretations is intended by the Union. Consequently, we will dismiss the petition for review as to Proposal 2 because the Union has not created a record on which we can determine the negotiability of the proposal. See Aberdeen I, 31 FLRA at 255.

V. Proposal 4

IFPTE proposes that employees operating drug testing equipment be trained and certified by qualified instructors before any testing is started.

A. Positions of the Parties

1. The Agency

The Agency contends that Proposal 4 violates management's rights to assign work and to contract out under section 7106(a)(2)(B) of the Statute. The Agency relies on National Federation of Federal Employees, Local 15 and Department of the Army, Armament Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1062-63 (1988) (Proposal 3) (Rock Island I), remanded as to other matters sub nom. 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), decision on remand, 33 FLRA 436 (1988) (Rock Island II), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989 (Aberdeen Proving Ground), decision on remand, 35 FLRA 936 (1990) (Rock Island III), as support for its contentions. However, the Agency argues that, unlike Proposal 3 in Rock Island I, Proposal 4 is not an "appropriate arrangement" under section 7016(b)(3) of the Statute. The Agency asserts that Proposal 4 does not qualify as an appropriate arrangement because it is inconsistent with the final Guidelines and, therefore, nonnegotiable under section 7117(a)(1) of the Statute.

2. The Union

The Union states, as to Proposal 4, that "[o]nly qualified personnel should be used in a program as important as the drug testing program. An employee's future may rest in the hands of an unqualified person. This should not be allowed." Petition for Review at 1.

B. Analysis and Conclusions

A proposal prescribing the qualifications of the personnel who will operate drug testing equipment "is inconsistent with the spirit, if not the letter, of the [final] Guidelines." Aberdeen Proving Ground, 890 F.2d at 474. In Aberdeen Proving Ground, the court found that the final Guidelines were intended to establish the exclusive standards for certification of laboratories. "A laboratory's certification under the Guidelines 'shall be a determination that these qualification requirements have been met.'" Id. at 473 (quoting section 3.6 of the final Guidelines, 53 Fed. Reg. at 11987). The court also found that the final Guidelines do not specify requirements for the personnel who perform the test, "but rather depend on the ability of those responsible individuals [engaged in the day-to-day management and operation of laboratories] to select and oversee properly qualified employees in each specific laboratory[.]" Id. (quoting 53 Fed. Reg. at 11971). Because the final Guidelines do not specify requirements for laboratory personnel who perform drug tests, the court concluded that the imposition of additional standards for those laboratory personnel was inconsistent with the final Guidelines and, therefore, not negotiable. Id.

On remand from the court in Aberdeen Proving Ground, the Authority decided in Rock Island III, 35 FLRA 936, 938-39 (1990), that the proposal "regarding the qualifications of personnel operating [drug] testing equipment" was nonnegotiable because it was inconsistent with the final Guidelines. The Authority stated that "[i]n future cases involving proposals that are not materially different from Proposal 3 [in Rock Island III] . . . and that are intended to be applied in the same manner, we will also find them to be nonnegotiable." Id.

Proposal 4 establishes the qualifications of the personnel who will operate drug testing equipment. Therefore, it concerns the qualifications of the staff of the independent, certified laboratory performing the urinalysis testing under the final Guidelines. Proposal 4 establishes standards in addition to the standards in the final Guidelines for laboratory certification. Proposal 4 is not materially different from Proposal 3 in Rock Island III and is intended to be applied in the same manner. Because we find that Proposal 4 establishes specific qualifications for laboratory personnel and, thereby, imposes additional standards for laboratory certification, we conclude, consistent with Rock Island III, that the proposal is inconsistent with the final Guidelines and, therefore, nonnegotiable under section 7117(a)(1) of the Statute.

Further, because we have found that Proposal 4 is inconsistent with the final Guidelines and, therefore, nonnegotiable under section 7117(a)(1), "we need not evaluate its impact on management's rights." Aberdeen Proving Ground, 890 F.2d at 474.

VI. Proposal 6

IFPTE proposes that the agency be prohibited from using the urinalysis test as a punitive measure against an employee.

A. Positions of the Parties

1. The Agency

The Agency notes that the proposal does not state whether it is limited to preclude use of the selection procedures in a punitive manner, or whether it is intended to preclude management from using test results to punish employees. Agency's Statement at 6. The Agency contends that "[i]f the proposal applies to the disciplinary measures which management may take as a result of an employee testing positive, then the proposal is nonnegotiable because it directly interferes with management's right to discipline employees under 5 U.S.C. 7106(a)(2)(A) and under Executive Order 12564." Id. at 6-7. The Agency states that if, however, the proposal "requires only that the selection of employees for drug testing be in accordance with law," then the proposal would be negotiable. Id. at 7. Finally, the Agency contends that if the proposal is intended to preclude management from using test results to punish employees, it also is inconsistent with the Department's Plan for a Drug Free Workplace. The Agency asserts that there is a compelling need for Part II, 2 B, C, D and E of the Agency's drug testing plan to bar negotiation on the proposal.

2. The Union

The Union gives no explanation of its intent as to Proposal 6 beyond the words of the proposal itself. See Petition for Review at 2.

B. Analysis and Conclusions

Proposal 6, which prohibits the Agency "from using the urinalysis test as a punitive measure against an employee," is negotiable.

In National Federation of Federal Employees, Local 1437 and U.S. Army Armament Research, Development and Engineering Center, Dover, New Jersey, 31 FLRA 101 (1988) (decision on remand as to other matters 33 FLRA 493 (1988)) (Dover), the Authority found a proposal substantively the same as Proposal 6 in this case to be negotiable. Proposal 4 in Dover provided that "[u]nder no circumstances will an employee be subjected to urinalysis as a punitive measure." The Authority found that the proposal was consistent with the agency's procedural drug testing regulations, and did not interfere with management's right to determine its internal security practices in accordance with law, including Exec. Order No. 12564.

Proposal 6, like Proposal 4 in Dover, restricts management's use of urinalysis tests as a punitive measure. Consequently, we interpret Proposal 6 as prohibiting the Agency from selecting employees for testing for reasons unrelated to the purpose of the drug testing program. As in Dover, we find that the proposal merely requires the Agency to exercise its rights under section 7106(a)(1) in accordance with law. Because we find that the proposal requires management to exercise its rights under section 7106(a)(1) of the Statute in accordance with applicable law, we conclude, consistent with American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1074-79 (1990) (Department of Education) decision on reconsideration 39 FLRA No. 107 (1991), that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. See also Merit Systems Protection Board Professional Association and Merit Systems Protection Board, 31 FLRA 258, 264 (1988), reversed as to other matters sub nom. U.S. Merit Systems Protection Board v. FLRA, 913 F.2d 976 (D.C. Cir. 1990) (where issue of appropriate arrangement not raised, Authority considered issue anyway because of similarity to a case where the issue was raised and the failure to consider the issue would lead to anomalous and conflicting results on similar proposals).

The record does not support the Agency's contention that Proposal 6 is inconsistent with an Agency regulation for which there is a compelling need. The Agency has not provided a copy of Part II, 2 B, C, D and E of its drug testing plan, nor has it explained how Proposal 6 is inconsistent with that portion of the regulation. Further, the Agency has not provided any evidence or argument to support its contention that there is a compelling need for Part II, 2 B, C, D and E of its drug testing plan. We conclude that the Agency has not demonstrated that Proposal 6 is inconsistent with any law, rule, or regulation so as to render it nonnegotiable under the Statute. See 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) (Federal Correctional Institution, Danbury, Connecticut). Consequently, we find that Proposal 6 is negotiable.

VII. Proposal 8

IFPTE proposes that an employee being tested be granted up to four (4) hours administrative leave to take the drug test.

A. Positions of the Parties

1. Agency

According to the Agency, Proposal 8 would allow an employee to avoid testing if he or she were able to refrain from furnishing a specimen during the 4-hour period provided under the proposal. The Agency states that "[a]fter the passage of 4 hours, by operation of the proposal the Agency would no longer be free to obtain a urine sample from the employee." Agency's Statement at 7. The Agency argues that the proposal "could operate as a contractual limitation as to the time available within which a urine specimen could be obtained, thus improperly frustrating the intent of the program." Id. The Agency contends that the limitation in the proposal violates management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency also contends that Proposal 8 is nonnegotiable because it is inconsistent with "the Department's Plan for a Drug Free Federal Workplace, Part II.4, Failure to Appear." Id. at 8. The Agency asserts that there is a compelling need for its regulation.

2. Union

The Union states the following concerning Proposal 8: "If an employee cannot furnish a specimen immediately, it may take that long for them to be able to submit a proper sample." Petition for Review at 2.

B. Analysis and Conclusions

Proposal 8 requires that employees be provided up to 4 hours of administrative leave to take a drug test. We find that Proposal 8 is negotiable.

The Agency interprets Proposal 8 as limiting the Agency to a maximum of 4 hours in which to obtain a urine sample. However, the record does not support the Agency's interpretation of the proposal. Proposal 8 is not intended to limit the time period during which the Agency may obtain an employee's urine sample. The wording of Proposal 8 requires that employees be provided up to 4 hours of administrative leave to take a drug test. The Union states that Proposal 8 is intended to allow an employee additional time to furnish a urine sample "[i]f an employee cannot furnish a specimen immediately[.]" Petition for Review at 2. We interpret Proposal 8 as requiring the Agency to provide up to 4 hours of administrative leave for an employee to furnish a urine sample for drug testing if the employee cannot furnish the specimen immediately. The proposal does not limit the Agency's discretion to approve administrative leave for a longer period if the Agency determines that more than 4 hours is required to provide a urine sample. See American Federation of Government Employees Local 2298 and U.S. Department of the Navy, Polaris Facility, Atlantic, Charleston, South Carolina, 35 FLRA 591 (1990) (proposals that preserve management's discretion to approve or disapprove employee absences do not conflict with management's right to assign work).

In Federal Correctional Institution, Danbury, Connecticut, 31 FLRA 95 (1988) (Proposal 43, 2nd Sentence), the Authority held to be negotiable a proposal requiring the agency, when it orders an employee to undergo a urine test, to give the employee being tested up to 4 hours of administrative leave in order to have a specimen collected. The Authority found that the proposal concerned only the test specimen that was required by the agency and concluded that providing administrative leave for employees did not interfere with management's right to assign work because the absence from assigned duties was at the direction of the agency. The Authority also found that the proposal did not require the specimen to be collected at any particular place and nothing in the record indicated that the agency was required to grant an employee the full 4 hours of leave. Therefore, based on the record, the Authority concluded that the requirement for administrative leave under the proposal in that case was consistent with law, rule and regulation. Id. at 99-100.

There is no substantive distinction between the requirement for administrative leave to take a drug test in Federal Correctional Institution, Danbury, Connecticut and Proposal 8 in this case. Like the proposal in Federal Correctional Institution, Danbury, Connecticut, Proposal 8 applies to the test specimen that is required by the Agency. Therefore, the use of administrative leave under the proposal would result from a drug test taken at the direction of the Agency and would not interfere with the Agency's right to assign work. Also, Proposal 8 does not require the specimen to be collected at any particular place and the record does not indicate that the Agency must grant an employee the full 4 hours of administrative leave.

The record does not support the Agency's contention that Proposal 8 is inconsistent with an Agency regulation for which there is compelling need. The Agency has not provided a copy of Part II, 4 of its drug testing plan, nor has it shown that there is a conflict between that portion of its regulation and Proposal 8. Further, the Agency has not provided any evidence or argument to demonstrate that Part II, 4 of its drug testing plan is supported by a compelling need with reference to the standards set forth in section 2424.11 of the Authority's regulations. We conclude that the Agency has not demonstrated that Proposal 8 is inconsistent with any law, rule, or regulation so as to render it nonnegotiable under the Statute. See American Federation of Government Employees, Local 1857 and U.S. Department of the Air Force, Air Logistics Center, Sacramento, California, 36 FLRA 894, 907-11 (1990).

VIII. Proposal 10

IFPTE proposes that urine specimens not tested for drugs on the day collected be frozen. If, when thawed out, the specimen shows visual signs of precipitated salts, the specimen will be discarded and a new sample taken.

A. Positions of the Parties

1. The Agency

The Agency contends that Proposal 10 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency states that while the Union may view Proposal 10 as a procedure, the Agency views it as a substantive criterion directly interfering with management's right to determine its internal security practices. The Agency argues that the proposal prescribes a specific time and method for freezing urine samples and precludes the Agency from using alternate methods for conducting this aspect of the drug testing process. Agency's Statement of Position at 8-9.

The Agency argues that Proposal 10 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency states that even if the proposal were considered to be an "arrangement," it does not constitute an "appropriate" arrangement. The Agency maintains that because the proposal excessively interferes with management's right to determine its internal security practices under section 7106(a)(1), the proposal does not constitute an appropriate arrangement under section 7106(b)(3). Id. at 9.

The Agency also contends that Proposal 10 conflicts with section 2.4(c) of the final Guidelines and, therefore, that the proposal is nonnegotiable under section 7117(a)(1) of the Statute. The Agency states that section 2.4(c) of the final Guidelines provides that specimens which are not tested within 7 days of arrival at the laboratory are to be placed in secure refrigeration. The Agency argues that to the extent that Proposal 10 mandates a method or time for freezing untested samples which is different from the standard in the final Guidelines, the proposal is inconsistent with the final Guidelines. In this regard, the Agency also cites section 1.1(f) of the final Guidelines, which provides that "[a]gencies may not deviate from the provisions of [the] Guidelines without the written approval of the Secretary." Id. at 9-10.

The Agency also claims that Proposal 10 conflicts with management's right to determine the technology, methods and means of performing work under section 7106(b)(1) of the Statute. The Agency asserts that the process of freezing or discarding urine specimens is an integral part of the Agency's work in administering its drug testing program. Accordingly, the Agency argues that management has the right to determine the specific technology of performing the work. The Agency concludes that by restricting management's choices, the proposal conflicts with management's right to determine the methods and means of performing work under section 7106(b)(1) and, therefore, that the proposal is nonnegotiable. Id. at 10.

The Agency maintains that Proposal 10 conflicts with the Agency's Drug Testing Plan for which there is a compelling need under section 7117(a)(2) and (b) of the Statute. The Agency states that its plan provides that "[the Agency] shall adhere to all scientific and technical guidelines for drug testing programs promulgated by HHS consistent with the authority granted by Executive Order 12564." Id. at 10-11. The Agency contends that its adherence to the final Guidelines, which are Government-wide regulations, implements a mandate to the Agency to follow Government-wide regulations which are essentially nondiscretionary in nature. Therefore, the Agency argues that Proposal 10 is nonnegotiable because it violates the Agency's Plan for which there is a compelling need under section 7117(a)(2) and (b). Id.

2. The Union

The Union contends that Proposal 10 will prevent a sample from being rendered inaccurate due to delays in testing. The Union asserts that any delay may cause false-positive readings. Union's Petition for Review at 2.

B. Analysis and Conclusion

Proposal 10 provides that urine samples not tested on the day they are collected must be frozen and that if, after thawing, the samples show signs of precipitated salts, the specimens must be discarded and new samples taken. We find that the proposal is inconsistent with sections 2.4(c) and (i) of the final Guidelines. Because Proposal 10 is inconsistent with the final Guidelines, which are Government-wide regulations, Proposal 10 is nonnegotiable under section 7117(a)(1) of the Statute.

Under the procedures established by the final Guidelines, collection site personnel receive the samples to be tested and arrange for the shipment of the samples to the certified laboratory for testing. See section 2.2(h) of the final Guidelines, 53 Fed. Reg. 11981.

The final Guidelines provide instructions to the certified laboratory regarding the proper storage and refrigeration of urine samples prior to testing. The final Guidelines provide that "[s]pecimen bottles will normally be retained within the laboratory's accession area until all analyses have been completed." See section 2.4(b)(2) of the final Guidelines, 53 Fed. Reg. 11983. The final Guidelines also provide that "[s]pecimens that do not receive an initial test within 7 days of arrival at the laboratory shall be placed in secure refrigeration units. Temperatures shall not exceed 6 [degrees] C." See section 2.4(c) of the final Guidelines, 53 Fed. Reg. 11983. Samples consigned to long term storage are to be frozen at minus 20 degrees C or less. Section 2.4(h) of the final Guidelines, 53 Fed. Reg. 11984. The final Guidelines also state "[b]ecause some analytes deteriorate or are lost during freezing and/or storage, quantitation for a retest is not subject to a specific cutoff requirement but must provide data sufficient to confirm the presence of the drug or metabolite." Section 2.4(i) of the final Guidelines, 53 Fed. Reg. 11984.

In sum, the final Guidelines provide that urine samples will normally be retained in the laboratory's accession area until all analyses are completed, that the samples will be refrigerated if they do not receive an initial test within 7 days of arrival at the laboratory, and that the samples will be frozen when they are retained for long term storage. The final Guidelines also provide that if samples are frozen for long term storage, there must be sufficient quantity to permit a retest, because "analytes" deteriorate or are lost during freezing.

Proposal 10 states that if the urine sample is not tested on the day that it is collected, it is to be frozen. By providing that the sample is to be frozen if it is not tested on the day it is collected, Proposal 10 is inconsistent with the procedures for handling samples set forth in the final Guidelines. The proposal requires freezing the samples in situations where freezing is not permitted. The procedures in the final Guidelines: (1) specify that the sample normally will be retained in the accession area and that it will be refrigerated if it does not receive an initial test within 7 days; and (2) provide for freezing only when necessary for long term storage and only where there is sufficient sample to permit a retest. Moreover, as the final Guidelines indicate, freezing can result in the loss or deterioration of the "analytes" in the sample, which means that immediate freezing of the sample may compromise its validity prior to the initial test.

Therefore, to the extent that Proposal 10 would require the freezing of a sample the day after it is collected, regardless of whether that is necessary for long term storage or whether there is a sufficient sample to permit a retest, the proposal is inconsistent with the requirements of the final Guidelines. Because Proposal 10 is inconsistent with the procedures for refrigerating and freezing samples by the certified laboratory, it is inconsistent with the final Guidelines and is nonnegotiable under section 7117(a)(1) of the Statute.

Inasmuch as Proposal 10 is nonnegotiable under section 7117(a)(1) of the Statute, we need not consider the other arguments raised by the parties.

IX. Proposals 11 and 12

Proposal 11

IFPTE proposes that the agency be required to perform a second drug test on a new sample of the same specimen, if a positive result is obtained in the first drug test.

Proposal 12

IFPTE proposes that the agency be required to divide in half any specimen that yields a positive reaction on a drug test before being sent for a confirming test. The half being retained will be frozen. If the positive test is confirmed, the employee will be allowed to send the frozen portion to a laboratory of his/her choosing at the agency's expense for retesting.

A. Positions of the Parties

1. The Agency

The Agency contends that Proposals 11 and 12 conflict with the final Guidelines, which are Government-wide regulations and, therefore, the proposals are nonnegotiable under section 7117(a)(1) of the Statute. The Agency asserts that the Response to Comments in the final Guidelines, 53 Fed. Reg. 11971, para. 1, states that "split samples" are a cumbersome and expensive process, do not have any scientific advantage over the system devised by HHS, and risk administrative error by doubling the labeling, initialing, storage and accountability requirements. According to the Agency, the Response to Comments also "specifically reject[s] allowing the tested employee [to present] to the Medical Review Officer a split sample or private sample that does not fully comply with these Guidelines." Agency's Statement of Position at 12. The Agency states that it presumes that the employee intends to use the results of the drug test on the retained sample to refute the results of an official drug test, and refute the findings of the Medical Review Officer (MRO). Therefore, the Agency contends that Proposals 11 and 12 are nonnegotiable under section 7117(a)(1) of the Statute. Id. at 12-13.

The Agency also contends that Proposals 11 and 12 violate management's right to determine the internal security practices of the Agency under section 7106(a)(1) of the Statute. The Agency argues that the proposals delay the Agency's ability to take discipline against an employee who tests positive, by requiring the Agency to wait for the results of a second test. The Agency also argues that the proposals create additional procedures regarding sealable containers, labeling and signing the containers, storage, and chain of custody which create extra burdens for the collection site person and which risk loss of identity of the "official" sample. Id. at 13-14.

The Agency maintains that Proposal 12 is nonnegotiable because it prevents the Agency from taking disciplinary action pursuant to its right under section 7106(a)(2)(A) of the Statute. The Agency believes that the delay required by Proposal 12, because of the requirement for a second confirmatory test on a second sample, could prevent the Agency from exercising its right to discipline and, therefore, is nonnegotiable. The Agency asserts that the delay is not a negotiable procedure but, rather, directly interferes with management's right to discipline by requiring management to delay discipline indefinitely until an action of the employee, over which management has no control, is completed by having a private test performed on the retained sample. Id. at 14.

The Agency also argues that Proposal 12 violates management's right to contract out under section 7106(a)(2)(B) of the Statute. The Agency states that allowing an employee to have a sample tested at agency expense at a laboratory selected by the employee violates management's right to contract out. Id. at 14-15.

2. The Union

The Union argues that Proposal 11 will insure that false-positive results are kept to a minimum. The Union maintains that the proposal will also prevent cross-contamination of specimens. Id. at 3.

The Union contends that Proposal 12 is necessary to confirm any positive drug results. The Union states that verification by a second laboratory will insure that the Agency is not taking action against an employee for a false-positive result. Id.

B. Analysis and Conclusions

For the following reasons, we find that the record is not sufficient for us to make a negotiability determination on Proposals 11 and 12. Therefore, we will dismiss the Union's petition for review as to Proposals 11 and 12.

Proposal 11 provides that a second drug test on a new sample of the original specimen will be performed if the first drug test result is positive. Proposal 12 would require the agency to split in half any sample that yields a positive result on the initial drug test, before having the sample sent for confirmatory testing. The retained portion of the sample will be frozen. If the confirmatory test yields a positive result, the employee has the option to have the frozen portion of the sample tested at a laboratory selected by the employee.

In Department of Education, 38 FLRA 1068 (1990), we dismissed the petition for review as to a proposal, similar to Proposals 11 and 12, which provided for a second test if the employee's initial drug test was positive, because the record was not sufficient for us to make a negotiability determination. See id. at 1099-1103. In that case, the union provided no information concerning the purpose of the second test. The Union did not state who would receive the results of the second test, or whether the results of the second test would be used to enable someone other than the MRO to judge the medical significance of the results.

It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril.

The record in this case is silent regarding who would receive the results from the second drug tests or whether those results would be reported to some individual other than the MRO to enable that individual to assess the medical significance of the results. We agree with the U.S. Court of Appeals for the District of Columbia Circuit that determining who would receive the test results of a second or split sample, and whether those results would be used by someone other than the MRO to assess the medical significance of the results, are necessary factors in determining whether such proposals are negotiable. Consequently, information as to who would receive the test results from a second or split sample and how the results would be used must be in the record to enable the Authority to make a negotiability determination. See Aberdeen Proving Ground, 890 F.2d at 471-73.

It is not clear whether, under Proposals 11 and 12, employees would provide the results of the retests or second tests required by the proposals to their supervisors to facilitate the supervisors' personnel decision or to someone other than the MRO so as to enable that individual to refute the MRO's medical determination, or whether the proposals would have some other effect. Without an explanation from the Union concerning the intended effect of Proposals 11 and 12, or how the proposals operate consistent with the duties of the MRO, as prescribed in the final Guidelines, Proposals 11 and 12 are subject to interpretations that would render them inconsistent with the provisions in the final Guidelines governing reporting and verifying positive test results. See Aberdeen Proving Ground, 890 F.2d at 471-73, in which the court rejected the Authority's conclusion that a similar proposal was negotiable. The court stated that

[w]hile enabling the employee to provide supplementary evidence, such as new or split samples, to facilitate the supervisor's personnel decision might well be consistent with the Guidelines, [the Authority's] clearly expressed understanding that the proposal would allow the employee to refute the [MRO's] medical determination forces us to conclude that the proposal does not pass muster.

890 F.2d at 472. The court found that the final Guidelines provide the employee with an opportunity to persuade the MRO that the test result was incorrect or justifiable and that the MRO alone is qualified to evaluate the employee's claim. The court stated that "[a] proposal giving the supervisor that authority would undercut the Guidelines' command that agencies appoint a medical officer to make final medical decisions." Id. at 473.

Accordingly, consistent with our decision in Department of Education, because we cannot determine from the record who would receive the results of the second tests or whether those results would be reported to some individual other than the MRO to enable that individual to assess the medical significance of the results, we conclude that the record is insufficient for us to determine the negotiability of Proposals 11 and 12. Consequently, we dismiss the Union's petition for review as to Proposals 11 and 12.

X. Proposal 13

IFPTE proposes that reasonable accommodation be made for an employee who fails a drug test, i.e. be given access to rehabilitation programs, instead of being fired.

A. Positions of the Parties

1. The Agency

The Agency acknowledges that section 5(a) of Exec. Order No. 12564 requires agencies to refer employees who are found to use illegal drugs for treatment or rehabilitation. Agency's Statement at l5. The Agency argues, however, that the Executive Order also provides that treatment or rehabilitation shall be "in addition to appropriate personnel actions." Id. The Agency states that, if the proposal is "not intended to preclude the Agency from taking appropriate disciplinary action after a positive test result, and the proposal is limited to management providing access to the drug treatment and rehabilitation program as provided in the Executive Order, then the Agency withdraws its allegation of nonnegotiability as to this part of the proposal." Id. at 15-16. The Agency argues, however, that the proposal can be construed as precluding appropriate disciplinary action following a positive test so long as an employee undertakes rehabilitation. Id. at 15-16. The Agency concludes that to the extent that the requirements of the proposal exceed what is allowed or required by law, the proposal is, therefore, nonnegotiable. Id.

2. The Union

The Union states that an employee who voluntarily enters a treatment program should not be discharged for drug use. The Union claims that Proposal 13 provides an employee who has tested positive for use of an illegal drug the same accommodation in terms of treatment and rehabilitation as an employee in a voluntary program. Petition for Review at 3.

B. Analysis and Conclusions

Proposal 13 requires the Agency to provide employees who are found to use illegal drugs with access to rehabilitation instead of removing them from the Federal service. The Union states that the intent of the proposal is to provide employees with "the same accommodation" as employees who are in a voluntary program.

Under section 5(b) of Exec. Order No. 12564, agencies are precluded 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). Thus, if the proposal is intended to provide employees with "the same accommodation" as employees who are in a voluntary program, the proposal would appear to preclude the Agency from disciplining employees who are found to use illegal drugs and would require the Agency to offer such employees rehabilitation instead.

The plain wording of the proposal, however, precludes the Agency only from removing employees who are found to use illegal drugs--presumably through other than the voluntary testing program--but does not preclude all disciplinary action. Because of this ambiguity, we will limit our interpretation of the proposal so that it is consistent with the wording of the proposal. Consequently, we find that the proposal is intended to prevent the Agency from removing employees who are found to use illegal drugs and to require that those employees be offered the opportunity to enter rehabilitation.

In American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203, 1209-16 (1990) (Member Talkin dissenting) (Fort Leavenworth), the Authority found that a proposal that limited the range of disciplinary actions that management may take against an employee for a first confirmed finding of illegal drug use was consistent with Exec. Order No. 12564 and FPM Letter 792-19, but that the proposal was nonnegotiable because it directly and excessively interfered with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. We also noted that section 5(d) of Exec. Order No. 12564 and section 5(d) of FPM Letter 792-19 mandated the removal of an employee upon a second confirmed finding of illegal drug use. Id.

Proposal 13 is broadly worded and would apply both to employees who are determined for the first time to be using illegal drugs and to employees who are determined for the second time to be using those drugs. To the extent that the proposal would preclude the Agency from removing an employee who has been determined for the first time to use illegal drugs, we find, consistent with Fort Leavenworth, that Proposal 13 would directly interfere with management's right to discipline employees.

Although the Union does not specifically claim that Proposal 13 is an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute, we note that, by its terms, the proposal seeks to ameliorate the adverse effects on employees of the exercise of management's rights. However, there is no substantive distinction between Proposal 13 and the proposal at issue in Fort Leavenworth, which we found was not an "appropriate arrangement" because it excessively interfered with the agency's right to discipline employees under section 7106(a)(2)(A) of the Statute. See Fort Leavenworth, 38 FLRA at 1215-16. Consequently, as there is no basis in record to conclude otherwise, we find, consistent with Fort Leavenworth, that Proposal 13 would not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

Moreover, to the extent that Proposal 13 would prevent the Agency from removing an employee who is determined for the second time to use illegal drugs, we find that the proposal is inconsistent with law and Government-wide regulation. The Authority has found that Exec. Order No. 12564 constitutes law under section 7117(a)(1) of the Statute. Rock Island I, 30 FLRA at 1070-71. FPM Letter 792-19 (54 Fed. Reg. 14024) constitutes "government-wide guidance to agencies on the implementation of the terms of the Order." Section 1.e of FPM Letter 792-19. The guidance is generally applicable to the Federal workforce as a whole, and constitutes a declaration of official OPM policy pursuant to the Executive Order. Consequently, we find that FPM Letter 792-19 is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 1759 and Department of the Army, Headquarters, Fort McPherson, Georgia, 31 FLRA 21, 29-30 (1988).

As noted above, section 5(d) of Exec. Order No. 12564 and section 5(d) of FPM Letter 792-19 require removal of an employee upon a second confirmed positive drug test. Consequently, because Proposal 13 would preclude removal of an employee upon a second confirmed positive drug test, we find that the proposal is inconsistent with section 5(d) of the Executive Order and section 5(d) of FPM Letter 792-19. We conclude, therefore, that Proposal 13 is nonnegotiable under section 7117(a)(1) of the Statute.

In conclusion, to the extent that Proposal 13 precludes the Agency from removing an employee for a first confirmed use of illegal drugs, we find that it is nonnegotiable because it directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. We also find that, to the extent Proposal 13 would preclude the Agency from removing an employee who is determined for the second time to use illegal drugs, the proposal is nonnegotiable because it is inconsistent with law and Government-wide regulation under section 7117(a)(1) of the Statute.

XI. Proposal 14

IFPTE proposes that a second urinalysis be given only after the employee has been in a rehabilitation program for a reasonable time period of at least 60 days.

A. Positions of the Parties

1. The Agency

The Agency interprets Proposal 14 as providing a 60-day period of time during which an employee cannot be tested for illegal drugs. The Agency argues that, interpreted in this manner, the proposal has the same effect as proposals found nonnegotiable by the Authority under section 7106(a)(1) of the Statute because they required notice to employees prior to actual drug testing. Agency's Statement at 16. The Agency notes that "[a]s stated by the Authority in Aberdeen I, 31 FLRA 241 (1988), requiring a specific notice period prior to actual drug testing could provide employees who use drugs with sufficient notice of the time after which they are to be tested so as to frustrate the drug testing program's purpose of identifying illegal drug users." Id. The Agency concludes that the proposal directly interferes with management's right under section 7106(a)(1) to determine its internal security practices. Id.

2. The Union

The Union states that this proposal "would insure that after 60 days the employee should be drug-free and retain no trace of a prohibited drug in his/her body." Petition for Review at 3.

B. Analysis and Conclusions

Proposal 14 precludes the Agency from giving a urinalysis test to an employee who is in a rehabilitation program for a reasonable period, which must be at least 60 days. There is no exception to the testing prohibition in the wording of Proposal 14. In addition, the Union does not describe any circumstance where testing of an employee who is in a rehabilitation program is permitted under Proposal 14 during the first 60 days of a rehabilitation program. We find that Proposal 14 precludes the Agency from giving a urinalysis test, for any purpose, to an employee during the first 60 days of a rehabilitation program. We conclude that, although Proposal 14 is not inconsistent with Exec. Order No. 12564 or FPM Letter 792-19, it is nonnegotiable because it directly and excessively interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices.

Section 3(c)(3) of Exec. Order No. 12564 provides that the head of an agency is "authorized" to test an employee "[a]s part of or as a follow-up to counseling or rehabilitation for illegal drug use through an Employee Assistance Program." Section 3(e) of FPM Letter 792-19, explaining section 3(c)(3), provides that the head of an agency "may also require agency-administered follow-up drug testing during or after counseling or rehabilitation for illegal drug use[.]"

To the extent that Proposal 14 would preclude management from testing an employee for at least the first 60 days of rehabilitation, the proposal is not inconsistent with law or Government-wide regulation because the Executive Order and the FPM Letter allow an agency discretion as to whether an employee will be tested as part of or as a follow-up to rehabilitation.

However, we find that Proposal 14 is nonetheless nonnegotiable. Proposals which prescribe substantive criteria governing the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute directly interfere with that right. National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 624-27 (1990) (Environmental Protection Agency). Management's right under section 7106(a)(1) includes the right to conduct random drug tests. Rock Island I at 1055-57. Proposal 14 would prohibit the Agency from randomly testing an employee who is in a rehabilitation program, or even from testing the employee on reasonable suspicion, for at least the first 60 days. Restricting in this manner management's ability to administer another random test directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

Finally, the Union has failed to demonstrate that Proposal 14 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Even assuming that Proposal 14 constitutes an "arrangement" for employees adversely affected by the exercise of management's right to administer a random drug testing program under section 7106(a)(1) of the Statute, it does not constitute an appropriate arrangement. By precluding the Agency from giving a urinalysis test, for any purpose, during the first 60 days of a rehabilitation program, Proposal 14 would negate the Agency's discretion to determine whether any testing is warranted to secure and safeguard the Agency's property and employees. Thus construed, the proposal would preclude testing even on the basis of reasonable suspicion that an employee is currently using illegal drugs. We find that such a blanket prohibition on testing excessively interferes with the Agency's right to determine its internal security practices and we conclude, therefore, that Proposal 14 is not an appropriate arrangement. See National Federation of Federal Employees, Local 1405 and U.S. Army Aviation Systems Command and U.S. Army Troop Support Command, 33 FLRA 604, 609-10 (1988). Consequently, we conclude that Proposal 14 is nonnegotiable.

XII. Proposal 15

IFPTE proposes that any employee [who] has been in a drug treatment program, and then tests positive for illegal drugs, be allowed to re-enter a second time instead of being removed from the service.

A. Positions of the Parties

1. The Agency

The Agency states that section 5(d)(2) of Exec. Order No. 12564 requires an agency to remove an employee who is found to use illegal drugs and does not thereafter refrain from using such drugs. Agency's Statement at 17. The Agency argues, therefore, that Proposal 15 is inconsistent with the Executive Order and is nonnegotiable. The Agency contends that the proposal is also inconsistent with Part II.12(D)(2) of the Agency's Plan, an Agency regulation for which a compelling need exists. Id.

2. The Union

The Union explains that Proposal 15 is intended to give an employee a second chance "to get off drugs." The Union states that "[f]iring the employee does not solve the problem and sometimes a second chance makes all the difference in an employee's future." Petition for Review at 3.

B. Analysis and Conclusions

Proposal 15 would prohibit the Agency from discharging an employee who has been in a rehabilitation program and thereafter is found to use illegal drugs, including an employee found for a second time to use illegal drugs, unless the employee is given a second chance to enter rehabilitation. We find that Proposal 15 is inconsistent with Exec. Order No. 12564 and FPM Letter 792-19 and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

As noted above, section 5(d) of Exec. Order No. 12564 requires that agencies "initiate action to remove from the service any employee who is found to use illegal drugs" and who "refuses to obtain counseling or rehabilitation through an [EAP]," or who "does not thereafter refrain from using illegal drugs[.]" Section 5(d)(8) of FPM Letter 792-19 provides that "initiation of an action to remove the employee from the Federal service is required after a second determination that the employee uses illegal drugs."

Proposal 15 applies to "any employee [who] has been in a drug treatment program." The proposal, therefore, applies to employees who have taken advantage of the opportunities provided under the Agency's drug testing program to voluntarily enter rehabilitation without first having been tested as well as to employees who have entered rehabilitation following a first confirmed positive test demonstrating that they have used illegal drugs. The proposal precludes the removal of such employees unless they are given a chance to enter rehabilitation a second time.

We find that Proposal 15 is inconsistent with section 5(d) of the Executive Order, which requires that an agency initiate action to remove an employee who does not refrain from using illegal drugs after rehabilitation, and with section 5(d)(8) of the FPM Letter, which requires that an agency initiate action to remove an employee after a second determination that the employee uses illegal drugs. See our discussion of Proposal 13, supra, where we found that Proposal 13 would prevent the Agency from removing an employee who is determined for the second time to use illegal drugs, and, therefore, is inconsistent with the Executive Order and the FPM Letter. Accordingly, because Proposal 15 is inconsistent with law and Government-wide regulation, we conclude that Proposal 15 is nonnegotiable under section 7117(a)(1) of the Statute.

As we have found that Proposal 15 is inconsistent with law and Government-wide regulation, we need not consider the other arguments raised by the Agency.

Finally, inasmuch as we have concluded that Proposal 15 is inconsistent with law and Government-wide regulation, we do not consider whether the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. See Department of Education, 38 FLRA at 1083 and 1111.

XIII. Proposal 16

IFPTE proposes that any employee tested, with the results showing a negative result, will not be required to undergo another test for at least one (1) year, minimum.

A. Positions of the Parties

1. The Agency

The Agency states that Proposal 16 provides for a minimum 1-year period of time during which an employee who has already been tested for use of illegal drugs cannot be tested again. The Agency argues that the proposal has the same effect as proposals found nonnegotiable by the Authority under section 7106(