40:0174(18)NG - - NFFE, Forest Service Council and Agriculture, Forest Service, Washington, DC - - 1991 FLRAdec NG - - v40 p174



[ v40 p174 ]
40:0174(18)NG
The decision of the Authority follows:


40 FLRA No. 18

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

FOREST SERVICE COUNCIL

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

WASHINGTON, D.C.

(Agency)

0-NG-1866

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 11, 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)(E) of the Federal Service Labor-Management Relations Statute (the Statute) by the Union. The dispute concerns the negotiability of two proposals relating to the Agency's drug testing program.(1)

Proposal 2 requires that the Union be given copies of laboratory proficiency test results and that a Union-designated observer be entitled to accompany Agency officials whenever those officials inspect a laboratory. We find that the proposal is consistent with the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services, 53 Fed. Reg. 11979-89 (1988) (final Guidelines) and conclude, therefore, that the proposal is negotiable.

Proposal 5 provides that employees are entitled to Union representation during the collection of the urine sample, that the Union representative shall observe the actions of the collection site monitor, and that employees be given written notice of their right to Union representation. We find that the proposal is consistent with the final Guidelines and that the proposal does not directly interfere with management's rights under section 7106 of the Statute. We conclude, therefore, that the proposal is negotiable.

II. Proposal 2

The Forest Service Council will be given copies of all laboratory proficiency test results. If agency officials visit the laboratory for an inspection, the Forest Service Council shall be entitled to designate an observer to attend this inspection. The observer will be on official time and allowed travel and per diem.

A. Positions of the Parties

1. Agency

The Agency claims that, under the final Guidelines, neither the Agency itself, nor any of its primary national subdivisions, "have the right or obligation to inspect drug testing laboratories." Agency Statement of Position (Agency Statement) at 5-6. In particular, the Agency contends that, under section 3.20 of the final Guidelines, the right to inspect laboratories performing drug tests is "specifically reserved" to the Department of Health and Human Services (HHS). Id. at 6. The Agency argues that only the Secretary of HHS has authority to receive and act upon inspection reports. The Agency also argues the final Guidelines do not provide for the distribution of copies of inspection reports to persons outside HHS. The Agency concludes that Proposal 2 is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with the final Guidelines, which are Government-wide regulations.

2. Union

The Union contends that the Agency's position is "completely beside the point." Union Response at 2. The Union states that Proposal 2 is not intended "to secure any sort of 'right' for union officials to conduct laboratory inspections." Id. Rather, the Union states that Proposal 2 is intended only to provide an opportunity for Union representatives "to observe the inspection process, and then only in those limited instances where Agency official[s] are themselves visiting the laboratory in conjunction with an official inspection." Id. According to the Union, the final Guidelines do not prohibit "union officials--or anyone else for that matter--from accompanying the inspection team into the laboratory and participating in the inspection process as observers." Id.

As to the Agency's claim that the final Guidelines do not provide for the release of laboratory inspection reports, the Union contends that the claim is based on "the notion that any proposed procedure or requirement not specifically prescribed by the [final] Guidelines must be viewed as inconsistent with the Guidelines." Id. at 3. The Union argues that a proposal imposing requirements in addition to the requirements of the final Guidelines is not nonnegotiable simply because it imposes those additional requirements. According to the Union, under the Agency's position, "no proposal would ever pass muster." Id. Rather, the Union contends that while the final Guidelines do not require the release of laboratory inspection reports, they do not prohibit the release of those reports. The Union concludes, therefore, that Proposal 2 is not inconsistent with the final Guidelines.

B. Analysis and Conclusions

Proposal 2 requires that the Union be provided with copies of all "laboratory proficiency test results" and that the Union be allowed to designate a representative as an observer to attend a laboratory inspection whenever Agency officials visit a laboratory for that purpose. We find that the proposal is consistent with the final Guidelines and conclude that the proposal is negotiable.

Section 4(d) of Executive Order No. 12564 authorizes the Secretary of HHS to "promulgate scientific and technical guidelines" for Federal agency drug testing programs and requires all agencies to conduct those programs in accordance with the guidelines. Pursuant to that authority, and section 503 of Pub. L. No. 100-71, 101 Stat. 391, 468-71, the Secretary of HHS issued the final Guidelines. The Guidelines are Government-wide regulations establishing, among other things, "standards and procedures for periodic review of laboratories and criteria for certification and revocation of certification of laboratories to perform drug testing in carrying out Executive Order No. 12564." 53 Fed. Reg. 11970 (1988). The final Guidelines provide that "[o]nly laboratories certified under these standards are authorized to perform urine drug testing for Federal agencies." Section 1.1(c) of the final Guidelines. 53 Fed. Reg. 11979 (1988).

In order to be certified to perform urine drug tests for Federal agencies, laboratories must meet the requirements of Subpart C of the final Guidelines. 53 Fed. Reg. 11986-89 (1988). Prior to certification, and in order to maintain certification, laboratories are subject to performance tests and on-site inspections. See Section 3.2(b), 3.12(b)(4), (5), and 3.17-3.20 of the final Guidelines, at 53 Fed. Reg. 11986-89 (1988). Unsuccessful performance tests, or lack of compliance with the requirements of the final Guidelines that is revealed by on-site inspections, can result in a laboratory not being certified or in revocation or suspension of a laboratory's certification. See Section 3.2(b) and 3.19-3.21 of the final Guidelines, at 53 Fed. Reg. 11988-89 (1988).

Certified laboratories are subject to a minimum of two on-site inspections per year conducted by a team of three qualified inspectors and inspection reports are prepared documenting "the overall quality of the laboratory setting for the purposes of certification to conduct urine drug testing." Section 3.20 of the final Guidelines. 53 Fed. Reg. 11989 (1988). The Secretary of HHS will notify an agency of an "unsatisfactory performance testing result" by the laboratory with which the agency has contracted for drug testing. Section 2.5(d) of the final Guidelines. 53 Fed. Reg. 11985 (1988). Moreover, Federal employees who are the subjects of drug tests "shall, upon written request, have access to . . . any records relating to the results of any relevant certification, review, or revocation-of-certification proceedings[,]" including those relating to the "periodic review of laboratories[.]" Section 503(a)(1)(A)(ii)(III) and 503(d)(2) of Pub. L. 100-71, 101 Stat. 468-771. See also Section 2.9 of the final Guidelines. 53 Fed. Reg. 11986 (1988).

As to the first sentence of Proposal 2, requiring the Agency to provide the Union with copies of "laboratory proficiency test results," we note at the outset that the Union does not define, and the record does not otherwise explain, the meaning of the phrase "laboratory proficiency test results." In terms of the final Guidelines as outlined above, however, the phrase would appear to mean the results of "performance tests," that is, the results of laboratory tests on samples containing known amounts of known illegal substances that are submitted with employee samples to test the accuracy of laboratory testing procedures. 53 Fed. Reg. 11972 (1988) ("The term 'proficiency testing' has been edited throughout to read 'performance testing' as a more precise reflection of the nature of the testing with which these Guidelines are concerned.").

We find that the first sentence of Proposal 2, requiring the Agency to provide the Union with the results of laboratory performance tests, is consistent with the final Guidelines. Under the final Guidelines, the Secretary of HHS will ensure that Federal agencies are aware of problems with any given laboratory, 53 Fed. Reg. 11976 (1988). In particular, the final Guidelines require that agencies be provided with the results of laboratory "performance tests." Section 2.5(d)(4) of the final Guidelines. 53 Fed. Reg. 11985 (1988). Nothing in the Comments that precede the final Guidelines indicates that the Guidelines are intended to preclude, and nothing in the final Guidelines themselves preclude, agencies from providing information that they receive concerning laboratory performance to unions representing the employees of those agencies. We note, as indicated above, that Federal employees who have been subject to a drug test are entitled to this information, upon written request, as a matter of law.

The fact that the final Guidelines do not require agencies to give unions the results of laboratory performance tests does not render the first sentence of Proposal 2 nonnegotiable. Unless some provision of the final Guidelines precludes agencies from giving that information to unions, we cannot say that the first sentence of the proposal requiring the Agency to provide the Union with "laboratory proficiency test results" is "inconsistent" with the final Guidelines. See National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1054 (1988) (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) (because section 3 of Executive Order 12564 and section 3(a) of Federal Personnel Manual (FPM) Letter 792-16 neither required nor prohibited random testing, proposal requiring testing only for "probable cause" held not to be inconsistent with the Executive Order or the FPM Letter); American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784, 787 (1980) (OPM) (a proposal is not inconsistent with a Government-wide regulation if it is not "incompatible or irreconcilable" with that regulation).

The Agency has provided no basis for interpreting the final Guidelines as precluding it from providing "laboratory proficiency test results" to the Union. The "silence" of the final Guidelines with respect to the question of whether agencies can provide laboratory performance test results to unions is not a ground for concluding that the proposal is "incompatible or irreconcilable" with the final Guidelines. OPM, 3 FLRA at 787. Consequently, we conclude that the first sentence of Proposal 2 is consistent with the final Guidelines and, therefore, that it is negotiable.

The second sentence of Proposal 2 authorizes the Union to designate a representative as an observer to attend a laboratory inspection whenever Agency officials visit a laboratory for that purpose. We note that, under the final Guidelines, on-site laboratory inspections relating to the granting or maintaining of certification are performed by qualified inspectors designated by HHS. The final Guidelines do not establish a right for either agency officials or union representatives to participate in inspections incident to the certification of laboratories, nor do they preclude agency officials or union representatives from participating in those inspections. Moreover, the final Guidelines do not prevent agencies from reaching an agreement with the laboratory that agency officials may attend inspections conducted by the qualified inspectors or conduct any other types of inspections that are in accordance with the final Guidelines.

By its terms, and as explained by the Union, the second sentence of Proposal 2 provides that the Union may designate a representative as an observer to participate in an on-site inspection of a laboratory whenever Agency officials participate in that inspection. The second sentence of Proposal 2, therefore, would not prevent HHS from conducting the on-site inspections by qualified inspectors provided for under section 3.20 of the final Guidelines. Moreover, because the final Guidelines do not prohibit agency officials or union representatives from participating in those inspections, the proposal does not require something that is precluded by the final Guidelines by allowing a Union representative to participate only where Agency officials participate.

As noted above, the final Guidelines permit agencies and laboratories to agree upon the terms and conditions governing inspections. The proposal would only require that should the Agency and the laboratory performing drug tests relating to unit employees agree that Agency officials will participate in on-site inspections, a Union representative would also be allowed to accompany the Agency officials as an observer. In our view, such an agreement is not precluded by section 3.20 of the final Guidelines. Consequently, we find that the second sentence of Proposal 2 is consistent with section 3.20 of the final Guidelines and, therefore, we conclude that the second sentence of the proposal is negotiable.

The Agency does not claim that the third sentence of Proposal 2 is nonnegotiable. Accordingly, because we find that the first and second sentences of Proposal 2 are negotiable, we conclude that Proposal 2 is negotiable.

III. Proposal 5

Employees are entitled to Union representation during the collection of the urine samples. The representative shall observe all actions of [the] collection site monitor. Employees shall receive written notice informing them of their right to union representation.

A. Positions of the Parties

1. Agency

The Agency notes that under section 2.2(d) of the final Guidelines "[n]o unauthorized personnel shall be permitted in any part of the designated collection site when urine specimens are collected or stored." Agency Statement at 13, quoting 53 Fed. Reg. 11980. The Agency also notes, citing section 2.2(f)(18)-(20), that the final Guidelines require that the employee be present during certain portions of the collection procedures. The Agency contends that, under the final Guidelines, there is no role for an "outside observer," including a Union representative, and that the final Guidelines "specifically prohibit the presence of such an individual, except when authorized by management in certain situations." Id. According to the Agency, the presence of a Union representative "would inhibit the ability of testing site personnel to ensure proper chain of custody" of urine specimens. Id. at 4.

The Agency contends that Proposal 5 is distinguishable from the proposal at issue 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, 97-100 (1988) (Federal Correctional Institution). The Agency argues that, under the proposal in that case, the agency could decide not to allow a union representative to accompany an employee to the collection site, while under Proposal 5 the employee, and not the Agency, decides whether a Union representative will accompany the employee. The Agency also argues that, under the proposal in Federal Correctional Institution, the union representative would only verify the collection, while under Proposal 5 in this case, the representative would be present in the collection site room. The Agency concludes, therefore, that the proposal directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) and with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

In addition, the Agency contends that Proposal 5 is distinguishable from National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983, 987 (1982), wherein the Authority found that a proposal permitting employees to be present during a search of their possessions did not directly interfere with management's right under section 7106(a)(1). In that case, the Authority found that the presence of the employee would not affect management's ability to conduct the search. Under Proposal 5, the Agency argues, the Union representative must be physically present in the room where the collection occurs in order to observe the actions of the collection site monitor and thus would constitute a distraction for the collection site monitor. According to the Agency, the collection site monitor would not only have to ensure that the employee complied with collection procedures, but would also have to ensure that the Union representative did not tamper with items or equipment in the room, including urine specimens. Id. at 15. The Agency concludes that the effect of Proposal 5 is to "increase the potential for error and/or tampering." Id. at 16.

2. Union

The Union states that Proposal 5 is intended to allow employees the option of having a Union representative present at the collection site in order to ensure that proper procedures are followed. Petition for Review at 2.

As to the Agency's claim that the proposal is inconsistent with the final Guidelines, the Union notes that the final Guidelines do not specify "who is authorized to remain at the collection site and who is not." Union Response at 4. The Union argues that because the final Guidelines do not specify who is authorized to be present, it appears that someone other than collection site personnel and the employee being tested "could be given authorization to remain at the site[.]" Id. (emphasis in original). The Union concludes that because the final Guidelines only prohibit "unauthorized" persons at the site, it is not inconsistent with the final Guidelines for the Union to negotiate over authorization for a Union representative to remain at the collection site during a specimen collection. Id.

As to the Agency's claim that Proposal 5 directly interferes with management's right to determine its internal security practices, the Union notes that any security concerns the Agency might have could easily be addressed. The Union states that the proposal would not preclude the Agency from requiring Union representatives at the collection site "to surrender their coats, jackets, and personal belongings upon entering the collection site," from assigning additional personnel to escort the Union representative through the collection site, or from confining the representative to a particular area, "provided that the actions of the collection site person could be seen from that location." Id. at 5. The Union concludes, therefore, that the proposal does not directly interfere with management's right under section 7106(a)(1).

The Union contends that Proposal 5 constitutes a procedure, under section 7106(b)(2) of the Statute, which management will follow in exercising its rights. The Union argues that, under the proposal, management "will still be able to collect, process, and analyze urine specimens and collection site personnel will continue to perform all the functions required by" the final Guidelines. Id. at 6. The Union also argues that the Agency has not demonstrated that the proposal would undermine the role of collection site personnel.

B. Analysis and Conclusions

Proposal 5 provides that unit employees are entitled to have a Union representative present during the collection of urine specimens to observe the actions of the collection site monitor. We find that Proposal 5 is negotiable.

The final Guidelines state that "[n]o unauthorized personnel shall be permitted in any part of the designated collection site when urine specimens are collected or stored." Section 2.2(d) of the final Guidelines. 53 Fed. Reg. 11980 (1988). The final Guidelines do not define the term "unauthorized." Consistent with the normal dictionary definition of the term "authorized," however, we construe the term "unauthorized" to refer to persons who have not been empowered or permitted by proper authority to be at the collection site. See Webster's Third New International Dictionary. The regulations, however, do not define what constitutes a "proper authority" to "empower" or "permit" persons to be present at the collection site. In our view, the Agency, at a minimum, is such a "proper authority." See section 1.1(a)(1) of the final Guidelines. 53 Fed. Reg. 11979 (1988).

By negotiating on this proposal, the Agency would be exercising its discretion under the final Guidelines to "empower" or "permit" persons to be present at the collection site during the collection of urine specimens. See, for example, National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6, 8-12 (1986), aff'd sub nom. Department of Treasury, Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988). The proposal is consistent with section 2.2(d) of the final Guidelines because, by requiring the Agency to exercise its discretion through negotiations, the proposal itself constitutes the authorization that would allow Union representatives to be present at the collection site to observe the actions of the collection site monitor. See, for example, General Services Administration, Region 8 and American Federation of Government Employees, AFL-CIO, Council 236, 21 FLRA 405, 408-09 (1986) (award of travel and per diem expenses for union representational activities was not deficient under the Travel Expense Act because agency agreement to provision requiring payment of travel and per diem expenses for union representational activities was an exercise of the agency's discretion under the Act to determine that representational activities are sufficiently in the interest of the Federal Government so as to constitute "official business").

The issue in this case, then, is whether, by requiring the Agency to grant permission to Union representatives to be present at the collection site, the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. We find that the proposal does not directly interfere with management's right to determine its internal security practices.

As part of its right under section 7106(a)(1) of the Statute to determine its internal security practices, the Agency may conduct random drug tests to determine whether employees use illegal drugs. See Rock Island I. However, Proposal 5, by its terms, would have no effect on the Agency's decision to conduct those tests and it would in no way be determinative of the manner in which the tests themselves are administered. The proposal would neither preclude nor restrict the Agency's ability to conduct random drug tests and it would not dictate to management the equipment or techniques used to conduct those tests. See National Treasury Employees Union and U.S. Customs Service, 31 FLRA 118, 121-22 (1988). Compare Rock Island I at 1058-61 (proposal requiring agency to use testing methods and equipment that are the most reliable that can be obtained held to be nonnegotiable). Rather, the proposal would only permit the "authorized" presence of a Union representative as an "observer" during the implementation of the collection process.

In our view, the presence of the Union representative as an "observer" would not in and of itself compromise the security of the testing process. In any event, other than requiring that the Union representative be an "observer," the proposal would not affect the Agency's decision as to the terms under which the Union representative would be present at the collection site. Consequently, the proposal would not prevent the Agency from imposing conditions on the presence of the Union representative to protect the integrity of the specimens or the testing process.

We find, therefore, that by requiring the Agency to permit a Union representative to be present as an observer at the collection site during drug testing, Proposal 5 does not directly interfere with management's right under section 7106(a)(1) to determine its internal security practices. Rather, the proposal constitutes a procedure within the meaning of section 7106(b)(2) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 1759 and Department of Defense, Department of the Army, Headquarters, Fort McPherson, Georgia, 29 FLRA 261, 265-66 (1987); National Treasury Employees Union and Internal Revenue Service, Denver District, 24 FLRA 249, 252-54 (1986). In addition, to the extent that the proposal would apply to other forms of drug testing, for example, "reasonable suspicion" testing or post-accident testing, we find that, even assuming that those forms of testing constitute an exercise of management's right under section 7106(a)(1) to determine its internal security practices, the effect of the proposal on the conduct of those forms of testing would be no different from the effect on random testing. Therefore, we conclude that the proposal would constitute a procedure for conducting those forms of testing as well.

Moreover, because the presence of the Union representative as an observer at the collection site constitutes the implementation of a procedure under section 7106(b)(2), we find that Proposal 5 does not directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Proposals establishing a procedure that management will follow in exercising its rights under section 7106 of the Statute will not be found to be nonnegotiable because they require the assignment of someone to implement the procedure. See U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center, 36 FLRA 466, 473-74 (1990); National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 367-68 (1990).

The Agency does not claim that the portion of Proposal 5 that requires notice to employees of their right to Union representation at the collection site is nonnegotiable. Accordingly, we