41:1158(92)NG - - NFFE, Local 2015 and Interior, National Park Service - - 1991 FLRAdec NG - - v41 p1158
[ v41 p1158 ]
41:1158(92)NG
The decision of the Authority follows:
41 FLRA No. 92
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute).(2) The appeal concerns the negotiability of 10 proposals concerning the implementation of the Agency's drug testing program.(3)
Proposal 1 would require the Agency to provide briefings for employees on the Agency's drug testing program and allow the Union an opportunity to speak at the briefings. The proposal is within the duty to bargain as it does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.
The first sentence of Proposal 2 would require the Agency to provide transportation to an off-site laboratory for drug testing. This sentence is a negotiable procedure under the Statute. The second sentence of Proposal 2 is not in dispute. The third sentence of Proposal 2 would require the Agency to provide employees with a minimum of 2 hours notice before reporting for transportation to the off-site laboratory. The Authority finds, with Member Talkin dissenting, that the third sentence of the proposal is outside the duty to bargain and does not constitute a negotiable appropriate arrangement.
Proposal 3 would allow a Union representative to be present during the collection of a urine sample and to observe all actions of the collection site monitor. We find the proposal to be a negotiable procedure under section 7106(b)(2) of the Statute.
Proposal 4 would require the Agency to use some form of disposable thermometer to measure the temperature of specimens. We find the proposal to be a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 5 would allow an employee who is unable to provide a sufficient volume of urine on the appointed test day to return the next day to void the necessary amount. The proposal is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with a Government-wide regulation.
Proposal 7 would authorize up to 4 hours of official time for an employee to arrange for a private test after undergoing the Agency's drug test. We find the proposal to be outside the duty to bargain because the purpose for which official time is sought is inconsistent with a Government-wide regulation.
Proposal 9 would allow the Union to designate an observer to attend an inspection of a drug testing laboratory. We find the proposal to be negotiable.
Proposals 10 and 12 are no longer in dispute. We find that the Union's expressed intent with regard to the meaning of these two proposals comports with the basis on which the Agency stated that it would withdraw its allegation of nonnegotiability.
Proposal 13, which states that documentation provided by an employee of legitimate drug use will be presumed to be a valid explanation of a positive test, is negotiable.
II. Proposal 1
The agency will provide briefings for all employees identified as occupying sensitive positions at least 14 days prior to initiation of random testing. The union shall be notified of these briefings, shall be entitled to attend, and shall be entitled to speak for up to 10 minutes at these briefings. [Only the underlined portions are in dispute.]
A. Positions of the Parties
1. The Agency
The Agency contends that the portion of the proposal in dispute is outside the duty to bargain because it: (1) interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute; and (2) does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency contends that the Authority previously has found that proposals requiring management to provide training to employees are outside the duty to bargain because the assignment of training constitutes an assignment of work under section 7106(a)(2)(B) of the Statute. The Agency argues that the proposal here requires management to assign training duties and responsibilities to some employees who will qualify as "trainers" and to other employees who will serve as "trainees." Statement of Position at 3. The Agency argues that these training activities will occur during employees' duty hours and that the proposal interferes with management's right to assign work. In support, the Agency relies on American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force, HQ 90th Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130, 1138 (1988) (Provision 4) (F.E. Warren) and National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797, 825 (1987) (Bureau of Land Management) (Proposal 16). The Agency also states that the Union's reliance in its petition for review on National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground Installation Support Activity, 31 FLRA 241 (1988) (Proposal 1) (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 II), decision on remand, 35 FLRA 926 (1990) (Aberdeen III), is misplaced. The Agency notes that in Aberdeen I, the Authority dismissed the petition for review as to the particular proposal on which the Union relies.
The Agency also contends that the portion of the proposal in dispute does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute because the proposal excessively interferes with management's right to assign work. Specifically, the Agency contends that because the proposal requires drug testing briefings at meetings of employees, it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute "by creating a substantial burden on management inconsistent with the purposes of effective and efficient government operations." Statement of Position at 5. The Agency asserts that the burden on its right to assign work arises from the proposal's requirement that employees would have to be trained as "trainers" while in a duty status and that other employees would have to be assigned "to undertake the specific training[.]" Id. Moreover, the Agency contends that this excessive interference with management's right to assign work would be "disproportionate to any benefit to be derived from such oral briefings." (footnote omitted). Id. In this regard, the Agency asserts that the oral briefings required by the proposal would provide essentially the same information as that presently available in an informational booklet issued by the Agency concerning its drug testing program. The Agency adds that if additional information is needed by employees or the Union, they could request such information. Finally, the Agency contends that if it is required to bargain over this proposal, it might incur the additional burden of assigning training duties to some 220 employee trainers in the other 220 bargaining units representing its employees nationwide.
2. The Union
In response to the Agency's assertion that the proposal interferes with the right to assign work, the Union asserts that the Agency has "mischaracterized" the proposal. Union Response at 3. The Union contends that the disputed portion of the proposal does not require training but instead provides "occasions for the presentation of the facts on the drug testing program and answering questions or concerns." Id. The Union contends the Agency's reliance on F.E. Warren and Bureau of Land Management is misplaced, and that the Authority no longer examines a proposal's potential impact on non-bargaining unit employees in order to determine its negotiability, citing American Federation of Government Employees, Local 32 and Office of Personnel Management, 33 FLRA 335 (1988) (OPM), petition for review denied sub nom. U.S. Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990). The Union also contends that the proposal concerns only the Union and the bargaining unit in this case, not the "other 219 bargaining units" mentioned by the Agency. Union Response at 5. The Union states that the Agency has identified only three bargaining unit positions designated for drug testing and that those positions are occupied by a total of seven employees. The Union notes the amount of time available for the briefings would be at the Agency's discretion and adds that "[a]t most one hour would be taken up of the work year of 7 employees." Id. at 7.
The Union also contends that "notwithstanding any infringement on management's rights," the proposal constitutes an appropriate arrangement for employees who are adversely affected by the Agency's random drug testing program. Id. at 2. The Union asserts that the drug testing program "has created a great deal of controversy and concern among employees." Id. The Union contends that any attempt to provide information or to address employee's concerns about the drug testing program through "cold and faceless booklets" merely "compounds this demeaning and demoralizing action." Id. at 3. The Union adds that the briefings are designed to present an opportunity for employees to express their concerns and receive answers to their questions. The Union also notes that it is essential for the Union to be able to speak about regulatory and contractual protections provided to employees facing random drug testing.
B. Analysis and Conclusions
The disputed portion of Proposal 1 requires the Agency to provide briefings to employees occupying sensitive positions who are subject to random drug testing, and to allow the Union up to 10 minutes to speak at the briefings. We conclude that the proposal does not directly interfere with the Agency's right to assign work and is within the duty to bargain.
The proposal here is to the same effect as Proposal 2 in American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557 (1991) (Defense Mapping Agency), in which the Authority found negotiable a proposal that required the agency to provide "classes" for all unit employees for the purpose of explaining various aspects of the agency's drug testing program. The Authority addressed and rejected the same arguments raised by the Agency in this case that the disputed proposal directly interfered with the right to assign work because it required the agency to train employees. The Authority distinguished proposals that establish a mechanism for conveying information, such as classes, from proposals that involve instruction concerning employees' duties and responsibilities. The former were held not to involve the assignment of work and to be negotiable as long as the proposals otherwise concerned conditions of employment and did not require the release of protected information. The Authority found that matters concerning an agency's drug testing program "unquestionably concern conditions of employment." Id. at 563.
Subsequent to the decision in Defense Mapping Agency, the Authority found two other provisions requiring an agency to provide (1) training to union officials concerning drug testing and related employee assistance programs and (2) briefings for all employees regarding implementation of a drug testing program to be negotiable because they did not directly interfere with the agency's right to assign work. National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C., 39 FLRA 1532 (1991) (IRS). We reach the same result here. Accordingly, and for the reasons more fully explained in Defense Mapping Agency and IRS, we conclude that Proposal 1 does not directly interfere with the Agency's right to assign work. Moreover, the proposal concerns a condition of employment and it is neither alleged nor apparent that the proposal would require the release of information in violation of applicable law or regulation. The Agency's reliance on F.E. Warren and Bureau of Land Management is misplaced. Unlike the provision in F.E. Warren, which involved instruction to new employees on elements of their duties, the proposal here does not require instruction to employees concerning any facets of their duties. Additionally, in Defense Mapping Agency, we stated that we would no longer follow Bureau of Land Management to the extent that it indicated that all proposals requiring agencies to conduct sessions intended to convey information to employees would be analyzed as training proposals. Defense Mapping Agency, 39 FLRA at 567.
Based on the foregoing, we conclude that Proposal 1 does not directly interfere with the Agency's right to assign work. As no other basis for finding the proposal nonnegotiable was asserted, we conclude that Proposal 1 is within the duty to bargain. In reaching this conclusion, we note that the Agency made no arguments with regard to the portion of the proposal entitling the Union up to 10 minutes to speak at the briefings. In the absence of any such arguments, and noting the Union's statement that the proposal was intended solely to provide the Union with the opportunity to describe the regulatory and contractual protections available to unit employees undergoing drug testing, we find no basis on which to conclude that this portion of the proposal is outside the duty to bargain.
In sum, we find that Proposal 1 is within the duty to bargain. In view of this conclusion, we need not address whether the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
III. Proposal 2
If the urine sample is to be provided off-site, the employer must provide transportation to the site. Travel to and from the laboratory will be on official time. Employees will be given a minimum of two hours notice before reporting to the bus or other mode of transportation. [Only the underlined portions are in dispute.]
A. Positions of the Parties
1. The Agency
The Agency asserts that the first sentence of the proposal requires the Agency to provide a bus or other Government vehicle to transport an employee to an off-site drug testing laboratory. The Agency contends that the first sentence is outside the duty to bargain under section 7106(b)(1) of the Statute because it would preclude the Agency from establishing any other method or means of transporting employees to an off-site laboratory. The Agency cites Bureau of Land Management, 30 FLRA at 831-32, to support its contention that any proposal requiring an agency to use "a particular mode of transportation is nonnegotiable under section 7106(b)(1) because it precludes the agency from choosing the particular mode of transportation . . . ." Statement of Position at 8. The Agency also rejects the Union's explanation that the first sentence simply means that travel to the collection site would be at Government expense. The Agency contends that this explanation is inconsistent with the plain meaning of the proposal which could be interpreted as requiring the Agency to provide specific vehicles to transport employees.
The Agency also contends that the third sentence of the proposal, requiring a minimum of 2 hours notice to employees before they report to vehicles for transport to an off-site test laboratory, violates management's right to determine the Agency's internal security practices under section 7106(a)(1) of the Statute. The Agency asserts that the minimum notice period required by the proposal could result in more than 2 hours notice being provided and that the proposal "invites the use of synthetic urines, carefully warmed to normal body temperature during the required two hour hiatus, thereby increasing the risk of false negative results." Id. at 10. The Agency contends that the effect of this sentence of the proposal is to "frustrate the drug testing program's purpose of identifying illegal drug users" and, as such, the third sentence directly interferes with management's right to determine its internal security practices under section 7106(a)(1). In support, the Agency relies on the Authority's decision in Aberdeen I, 31 FLRA 241 (Proposal 1), for the proposition that sufficient notice to employees of an impending drug test could frustrate the purpose of the drug testing program.
The Agency further argues that this sentence of the proposal contravenes Part II, section .8E of an Agency regulation entitled "Drug Free Workplace Policy and Procedures" (the Plan) for which there is a compelling need under sections 7117(a)(2) and 7117(b) of the Statute and section 2424.11(a) and (c) of the Authority's Rules and Regulations. The Agency asserts that the Plan provides for either no advance notice or a maximum of 2 hours notice before a scheduled test in order to avoid giving employees time to alter their specimens. The Agency argues that for a drug test to be effective, and to achieve the goal of identifying illegal drug users, employees must report for testing without any notice, or within 2 hours, as required by the Plan. The Agency also states that its Plan implements a congressional mandate to achieve a drug-free workplace. The Agency contends that the legislative history of section 503 of the Supplemental Appropriations Act of 1987, Pub. L. No. 100-71, 101 Stat. 468 (1987), codified at 5 U.S.C. § 7301 note, indicates that there is a desire to achieve uniformity in drug testing plans. The Agency asserts that the proposal's minimum 2 hours notice would thwart the congressional intent "that all employees of the various agencies . . . would follow the same drug testing regulations in significant respects." Statement of Position at 13. The Agency argues that if it is forced to ignore its own Plan, the purpose of the drug testing program could be frustrated.
Finally, the Agency asserts that the proposal's notice requirement does not constitute an appropriate arrangement because it would excessively interfere with management's right to determine its internal security practices under section 7106(a)(1). The Agency contends that the notice requirement is not "concerned with adverse impacts on employees because the areas of impact, if any, are substantially within the employee's control." Id. at 15. Regarding any alleged adverse impact, the Agency states that it is unlikely that management would schedule off-site drug tests to make employees late in arriving home but, rather, the Agency contends that even if this should occur an employee could make the necessary phone calls from the test site to inform "others of the possibility of arriving home late." Id.
2. The Union
The Union contends that the Agency has misinterpreted the first sentence of Proposal 2 as requiring "the use of Government vehicles to transport employees to off-site locations to provide urine samples for drug testing." Union Response at 9. The Union states, instead, that the sentence is intended to "include Government vehicles as well as using privately-owned vehicles or taxis with employees being reimbursed for mileage or taxi fare." Id. The Union also notes the language of the third sentence of the proposal referencing a "bus or other mode of transportation[,]" as evidence that the proposal is not limited to providing Government vehicles. Id. The Union also contends that the phrase "provide travel" previously has been interpreted to mean either the use of Government vehicles or reimbursement for other forms of transportation and that providing either form of transportation comports with the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1059-63 (1988) (Provision 33) rev'd as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989). Finally, the Union contends that this sentence does not concern the technology, method or means of performing work because the Agency's mission is to "regulate the use of . . . national parks" not to test "employees' urine for drugs." Union Response at 10.
With regard to the third sentence of the proposal, relating to 2 hours notice, the Union contends that the Agency's assertion that the 2 hours could be used to substitute artificial urine "is ludicrous." Id. at 12. The Union states that the Agency's reliance on the Authority's decision in Aberdeen I is misplaced as the Authority dismissed the proposal relied on, and also because the proposal here is distinguishable. The Union also contends that the third sentence of the proposal does not contravene the Agency's drug testing regulation. In this regard, the Union asserts that "[s]ince the words minimum or maximum do not appear in the [Agency's] regulation one cannot say with any finality that the regulation precludes a minimum notice period, so long as notice is given the same day testing is scheduled." Id. at 14. Moreover, the Union argues that while it does not believe that the third sentence is contrary to the Agency's regulation, to the extent such conflict exists, there is no compelling need for the regulation. Specifically, the Union asserts that the Agency has not demonstrated that its regulation meets the criteria for a finding of compelling need because the record does not establish that allowing a 2-hour notice period is inconsistent with an effective and efficient government, or that there is a congressional mandate that addresses, much less precludes, minimum notice periods prior to testing. The Union notes, in this latter regard, that Congress was concerned that agencies not develop plans using different criteria for designating positions for testing or different evidentiary standards for determining drug use.
Finally, the Union contends that the notice requirement is an appropriate arrangement for adversely affected employees. In support of this contention, the Union asserts that off-site testing could: (1) disrupt work assignments; (2) cause employees to be late in leaving work, thereby disrupting employees' outside commitments; (3) cause employees to miss their carpools; and (4) cause employees to incur various expenses, such as providing for alternative transportation home and, for those employees with children in day care facilities, additional costs imposed by some child care providers for picking up children late. Therefore, the Union asserts that its notice requirement provides benefits to employees that outweigh any negative impact on management's rights.
B. Analysis and Conclusions
1. The First Sentence Is a Negotiable Procedure
We find that the first sentence of Proposal 2 does not directly interfere with section 7106(b)(1) of the Statute. Rather, this sentence constitutes a negotiable procedure.
To demonstrate that a proposal directly interferes with management's right to determine the methods and means of performing work under section 7106(b)(1), an agency must show that: (1) there is a direct and integral relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, Local 1760, 36 FLRA 466, 474 (1990).
The first sentence of the proposal is concerned only with providing transportation for employees who are required by the Agency to travel from their regular work site to an off-site laboratory in connection with a drug test. The Agency has not demonstrated that a requirement to provide transportation for employees undergoing a drug test involves a methods or means of performing work under section 7106(b)(1) or that the manner in which employees travel to the test site is connected with the manner in which the Agency's mission is accomplished. Unlike Bureau of Land Management, in which the Authority found nonnegotiable a proposal that addressed the use of privately owned vehicles for Government business, the proposal here is not directly and integrally related to the nature of the Agency's business and the accomplishment of the Agency's mission. The proposal is merely concerned with providing transportation for employees who are directed to undergo a drug test. Moreover, we find that the first sentence does not dictate the type of transportation that will be provided or prevent the use of transportation for which employees may be reimbursed. Nothing in either the language of the proposal or the Union's explanation of the proposal suggests that the Agency would be so limited.
Based on the foregoing, we conclude that the first sentence of the proposal does not directly interfere with the Agency's right to determine the technology, methods or means of performing work. Rather, the first sentence constitutes a negotiable procedure. In view of this finding, we need not address the Union's contention that the sentence also constitutes a negotiable appropriate arrangement.
2. The Third Sentence Directly and Excessively Interferes with Section 7106(a)(1)
We conclude that the third sentence of Proposal 2 is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7016(a)(1) of the Statute. We further find that the third sentence does not constitute a negotiable appropriate arrangement. (Member Talkin's dissenting opinion is set forth at n.4, below.)
The third sentence of Proposal 2 requires that employees be given a minimum of 2 hours notice prior to reporting for transportation to the off-site laboratory. We find this sentence to be to the same effect as provisions found nonnegotiable in American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439, 1440-45 (1990) (Member Talkin dissenting, in part) (Sierra Army Depot). In Sierra Army Depot, the Authority found that provisions requiring employees to be given 2 hours advance notice that they would be tested for illegal drug use directly interfered with the Agency's right to determine its internal security practices. The Authority found that the agency had established a link between its drug testing program and its internal security concerns and that the provisions would impermissibly interfere with the agency's ability to conduct unannounced random drug tests of employees in sensitive positions by requiring employees to be provided with advance notice of the tests.
We reach the same conclusion here because the third sentence of the proposal would require, at a minimum, that employees be given 2 hours notice prior to reporting for transportation to the test site. In our view, this sentence creates an even greater interference with management's right than was present in Sierra Army Depot. We note, in this regard, that the 2 hours notice applies to reporting for transportation, and not simply reporting to the test site. The time spent travelling to the test site would create an additional time lag between the notice to employees and the time when they actually undergo the drug test. As we have found 2 hours notice to be an impermissible interference with management's right to determine its internal security practices, a notice period exceeding 2 hours clearly would constitute an impermissible interference with the exercise of that right.
Consequently, we find that the third sentence of the proposal directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. We next address whether the third sentence constitutes a negotiable appropriate arrangement under section 7106(b)(3), as argued by the Union.
To determine whether a proposal constitutes an appropriate arrangement, we must decide whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right, and whether the proposal is appropriate because it does not excessively interfere with the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).
The Union states that the third sentence of the proposal is intended to alleviate the disruptive impact on employees when they are called to report to an off-site laboratory for drug testing. The Union states that, without adequate notice, employees will have insufficient time to notify family members and others of the need to make alternative arrangements if the employees are unable to depart work at their normal quitting times. By way of example, the Union notes that employees must be able to contact their carpools or day care centers in order to make any necessary arrangements for transportation home or alternative day care. As so explained, we find that the third sentence of the proposal constitutes an arrangement for employees adversely affected by the exercise of the Agency's right to determine its internal security practices.
However, we further find that the third sentence is not an appropriate arrangement because it would excessively interfere with the exercise of that management right. The Union claims that the proposal would benefit employees by giving them sufficient time to make telephone calls and other alternative arrangements if it appears that employees will be unable to depart work at their normal quitting times. The Union also notes that employees may incur additional commuting and day care expenses which, apparently, the Union believes would be offset by adherence to the proposal. Obviously, there are benefits to employees of having time in which to make necessary scheduling adjustments. However, we find that the time available to employees under the proposal and the benefits that would thereby accrue to the employees do not, on balance, outweigh the burdens imposed on the Agency's right to determine its internal security practices. As part of its internal security practices, the Agency has the right to engage in random drug testing and to guard against any reduced effectiveness on the program that might result from the requirement of a minimum 2 hours notice. Moreover, we note that employees would not be left without the capacity to make necessary telephone calls and other arrangements. The Agency states that employees will have an opportunity to make telephone calls from the test site, and there is no evidence that employees would be prevented from making some or all of their arrangements at such time or prior to departing for the test site once they are called to undergo a drug test. Consequently, we find that the third sentence of the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
In sum, we find that the third sentence of the proposal would directly and excessively interfere with the Agency's right to determine its internal security practices and is, therefore, nonnegotiable.(4) In view of this result, we need not address the Agency's additional argument regarding a compelling need for an Agency regulation.
IV. Proposal 3
If the urine sample is to be provided on-site and if the employee makes a request, he is entitled to union representation during the collection of the sample. The representative shall observe all actions of the collection site monitor. Employees shall receive written notice informing them of their right to union representation. [Only the underlined portion is in dispute.]
A. Positions of the Parties
1. The Agency
The Agency contends that the disputed portion of the proposal is contrary to the Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS), 53 Fed. Reg. 11970 (1988) (Guidelines). Specifically, the Agency asserts that Proposal 3 contravenes Section 2.2(d) of the Guidelines, which provides that "'[n]o unauthorized personnel shall be permitted in any part of the designated collection site when urine specimens are collected or stored.'" Statement of Position at 18, quoting 53 Fed. Reg. 11980. In its supplemental submission, the Agency argues that it is not permitted to deviate from these Guidelines. The Agency contends that as a Union representative would fall within the meaning of the term "unauthorized personnel," the representative would not be permitted in any part of the designated collection site when specimens are collected or stored.
The Agency also contends that the proposal is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. In this regard, the Agency asserts that the presence of a Union representative during the collection process "compromises the security of all specimens collected . . ." and might "distract the collection monitor sufficiently enough to interfere with the security of the chain-of-custody of the specimen." Statement of Position at 17. Thus, the Agency contends that "the presence of a [U]nion observer could permit some tampering with the urine." Id.
The Agency also contends that the proposal does not constitute a negotiable procedure under section 7106(b)(2) of the Statute because it directly interferes with management's determination of its internal security practices. The Agency asserts that if a Union representative is present during the collection process and monitors the actions of the Agency's collection site person, the Union's representative "in effect, would be participating in the agency's right to determine what work will be performed and by whom in implementing its drug testing program." Id. at 20 (emphasis in original). The Agency explains that collection site personnel would have to watch the unauthorized Union representative, as well as monitor the employee providing a sample, thereby "dictat[ing] what extra work the authorized personnel will be required to do . . . compromising . . . the security of all the specimens at the site." Id. at 21.
Finally, in its supplemental submission, the Agency argues that the collection procedure does not constitute an examination within the meaning of section 7114(a)(2)(B) of the Statute. Consequently, the Agency states that there is no right to Union representation during the collection process.
2. The Union
The Union contests the Agency's assertions that the presence of a Union representative would result in any tampering with specimens or otherwise compromise the security of the collection process. The Union states that the Agency's security concerns could be satisfied by requiring the Union representative to remain "in a given spot" at the collection site. Union Response at 20. The Union further argues that employees subjected to testing have a right to Union representation during the collection process under section 7114(a)(2)(B) of the Statute. In this regard, the Union asserts that "the drug test is a procedure for eliciting facts regarding an investigation into the employee's use of certain illegal drugs[,]" and that unit employees "have definite cause to believe that this examination may result in disciplinary action." Id. at 21.
The Union also argues that because employees have a statutory right to representation at the collection site under section 7114(a)(2)(B), the provisions contained in the Guidelines "cannot nullify employees' statutory rights." Id. at 22.
Finally, the Union contends that the proposal is a negotiable procedure under section 7106(b)(2) of the Statute. The Union asserts, in this regard, that this procedure does not prevent the Agency from acting at all and does not directly interfere with management's rights because "drug testing would proceed the same as if the Union representative were not there." Id. at 24, 25.
B. Analysis and Conclusions
We find that Proposal 3 is within the duty to bargain as it constitutes a negotiable procedure under section 7106(b)(2) of the Statute.
Proposal 3 is similar to a proposal in National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA 174, 180-85 (1991), (Forest Service), petition for review filed sub nom. U.S. Department of Agriculture, Forest Service v. FLRA, No. 91-1275 (D.C. Cir. June 10, 1991), which provided 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. In Forest Service, the Authority addressed, among others, the same arguments raised by the Agency here that the proposal (1) violates Section 2.2(d) of the Guidelines; (2) directly interferes with the right to determine internal security practices under section 7106(a)(1); and (3) does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. The Authority rejected these arguments, finding that the agency had discretion under the Guidelines to empower or permit persons to be present at the collection site, and that the presence of a union observer would not compromise the security of the testing process. Accordingly, the Authority found that the proposal was a negotiable procedure under section 7106(b)(2) of the Statute. For the reasons more fully set forth in Forest Service, we find that Proposal 3 similarly constitutes a negotiable procedure under section 7106(b)(2) of the Statute.
V. Proposal 4
If the urine sample is to be provided on-site, where the temperature of each sample will be taken, the agency agrees to use some form of disposable thermometers, such that each sample will be tested using a new bulb, to guard against any possibility of tainted samples. [Only the underlined portion is in dispute.]
A. Positions of the Parties
1. The Agency
The Agency contends that the portion of the proposal in dispute is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency argues that the proposal is not a procedure but, rather, establishes "substantive criteria" that directly interfere with the "methods and equipment" it has chosen as part of its internal security plan. Statement of Position at 22-23. The Agency argues that by requiring it to use some type of disposable thermometer, the proposal would preclude the Agency from selecting another type of thermometer or temperature measuring equipment. Specifically, the Agency contends that the disputed portion of the proposal would preclude it from using an electronic thermometer with a disposable cover, which the Agency claims would be as reliable as a disposable thermometer but less costly.
The Agency also argues that the proposal conflicts with Section 2.2(f)(12) of the Guidelines by mandating the use of equipment, which differs from the standard in the Guidelines. As explained more fully in its supplemental submission, and relying on Aberdeen II, 890 F.2d 467, the Agency argues that the Guidelines contain the exclusive standards and requirements for drug testing. According to the Agency, the Guidelines require that "the temperature measuring device 'must accurately reflect the temperature of the specimen and not contaminate the specimen.'" Agency Supplemental Brief at 4. The Agency argues that the proposal is nonnegotiable because it would require the use of a specific type of thermometer, namely, a disposable thermometer, that is not specified in the Guidelines.
The Agency also argues that the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. In this regard, the Agency states that the proposal excessively interferes with management's right to determine its internal security practices by precluding the Agency from using methods or equipment that meet the specific standards regarding the accuracy of measuring devices contained in section 2.2(f)(12) of the Guidelines. The Agency also states that the proposal would excessively interfere with management's right to determine the specific equipment it will use to assure the reliability of test samples.
The Agency also asserts that the proposal interferes with management's right under section 7106(b)(1) of the Statute to determine the technology of performing work. The Agency states, in this regard, that "[t]here is no doubt that the process of measuring the temperature of the urine specimen is an integral part of the [A]gency's work in administering its drug testing program . . ." and that "[b]y restricting management's choices to a disposable thermometer, the proposal conflicts with management's right to determine the technology of performing work . . . ." Statement of Position at 26.
Finally, the Agency argues that the proposal conflicts with Part II, section .2 of the Agency's Plan, for which there is a compelling need under sections 7117(a)(2) and 7117(b) of the Statute and Part 2424.11(c) of the Authority's Rules and Regulations. The Agency states that section .2 of the Plan requires the Agency to adhere to all scientific and technical guidelines promulgated by HHS, and that the Guidelines do not allow for any deviation, such as would be required by Proposal 4. The Agency argues that the requirement in the Plan to adhere to the Guidelines implements a nondiscretionary mandate to the Agency that it follow Government-wide regulations. The Agency also argues that there is a need for uniformity in the application of the Plan and that the Agency "must use the same equipment and methods to test employees in this bargaining unit as it uses for other employees." Statement of Position at 27.
2. The Union
The Union contends that the disputed portion of Proposal 4 constitutes a negotiable procedure under section 7106(b)(2) of the Statute. Specifically, the Union argues that the disputed wording is "purely procedural" and merely requires "management to change the bulb on the thermometer each time an employee's urine sample is tested . . . ." Union Response at 26. The Union also states that "[m]anagement retains the right to determine the precise type of measuring device to use." Id. at 27. Alternatively, the Union contends that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3). In this regard, the Union states that "[c]hanging the bulb on the measuring device . . ." is a small inconvenience for management while the repercussions to an employee of having a faulty thermometer or of having a bulb contaminating the sample are great. Id. at 27-28. The Union also asserts that the proposal does not conflict with the Agency's internal security determinations because the proposal does not preclude the use of a thermometer altogether, require that the Union approve the type of thermometer, or require that the entire thermometer be discarded after each use. Rather, the proposal only requires that each sample be tested with a new bulb. The Union also argues that the proposal does not infringe on management's right to determine the technology, methods and means of performing work. The Union contends that testing employees for the use of illegal drugs is not part of the technology of performing work and, therefore, the "procedural safeguard regarding the use of 'some form of disposable thermometers' when testing employees is negotiable." Id. at 29.
Finally, the Union asserts that the proposal does not contravene either the Guidelines or the Agency's Plan. In this regard, the Union contends that the proposal does not mandate a particular type of thermometer but, rather, seeks to have the temperature of specimens measured accurately and without contamination by reusable thermometers. According to the Union, the proposal is in accordance with the Guidelines, which "obviously allow management to determine what type of thermometer to employ." Id. The Union also argues that because the proposal does not conflict with the Guidelines, the Agency's contention that the proposal violates its drug testing Plan, which contention rests entirely on the Guidelines, "cannot withstand scrutiny." Id. at 30.
B. Analysis and Conclusions
We find that the portion of Proposal 4 in dispute is negotiable as an appropriate arrangement for employees adversely affected by the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute. We also find that the Agency has failed to establish that the proposal is inconsistent with the Guidelines, that a compelling need exists for an Agency regulation so as to bar negotiations over the proposal, or that the proposal interferes with the technology of performing work.
Starting with the Agency's reliance on the Guidelines, we reject the Agency's contention that the proposal conflicts with section 2.2(f)(12) by mandating the use of equipment that differs from the standards set forth in the Guidelines. Section 2.2(f)(12) of the Guidelines provides, as relevant, that "[t]he temperature measuring device used must accurately reflect the temperature of the specimen and not contaminate the specimen." 53 Fed. Reg. 11981. Nothing contained in section 2.2(f)(12) identifies the particular type of temperature measuring device that will be used or prohibits the use of any particular type of thermometer, including a disposable thermometer. In the absence of any specific requirement or prohibition set forth in section 2.2(f)(12), we find that the use of "some form of disposable thermometers," as required by the proposal, is not inconsistent with section 2.2(f)(12) of the Guidelines.
We also reject the Agency's contention that the proposal is inconsistent with an Agency regulation for which a compelling need exists. The Agency's assertion of compelling need is based on the section of the Agency's Plan that requires adherence to all guidelines promulgated by HHS. The Agency states that the Plan thus implements a nondiscretionary mandate that the Agency comply with Government-wide regulations. The Agency also argues that there is a need to achieve uniformity in the application of the Plan, which is effected by using the same equipment and methods to test all Agency employees. We find that the Agency's assertion of compelling need to bar negotiations over the proposal fails for several reasons. First, as the Guidelines do not specify the type of temperature measuring device that must be used or prohibit the use of some form of disposable thermometer, the proposal would not prevent the Agency from adhering to the Guidelines. Second, the Agency has not cited any section of the Plan itself that would require the use of a particular type of measuring device to the exclusion of some form of disposable thermometer. Finally, assuming, as the Agency argues, that there is a need to achieve uniformity in the application of the Plan that would be effected by using the same type of temperature measuring equipment, nothing in the proposal would prevent the Agency from using disposable thermometers to measure the temperature of all specimens. Consequently, we find that the Agency has not established that a compelling need exists for its Plan so as to bar negotiations over the proposal.
We find similarly unpersuasive the Agency's argument that the proposal interferes with the Agency's right to determine the technology of performing work under section 7106(b)(1) of the Statute. In our view, the Agency has failed to establish that there is a technological relationship between the type of thermometer employed and accomplishing or furthering the performance of the Agency's work. See American Federation of Government Employees, Local 3601 and U.S. Department of Health and Human Services, Public Health Service, Indian Hospital, Claremore, Oklahoma, 39 FLRA 504, 511 (1991) (to determine whether a proposal interferes with management's right to determine the technology of performing work, an agency must establish that there is a technological relationship between the proposal and accomplishing the agency's work, and demonstrate how the proposal would interfere with the purpose for which the technology is adopted). Although the Agency argues that the process of measuring temperatures is an integral part of the Agency's administration of its drug testing program, we find that the Agency has failed to establish that the method used to measure the temperature of urine specimens is connected with the manner in which the work of the Agency is performed.
Next, we address the Agency's argument that the proposal is outside the duty to bargain because it directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. In 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, 1059 (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), rev'd in part and remanded as to other matters sub nom. Aberdeen II, decision on remand, 35 FLRA 936 (1990) (Rock Island II), the Authority held that management's determination of the methods and equipment to be used in drug testing is an exercise of its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Authority also held that limitations on the range of management's choices as to the methods and equipment used to conduct drug tests establish substantive criteria governing the exercise of management's right to determine its internal security practices.
In this case, we find that Proposal 4 would establish a substantive criterion governing the exercise of management's right to determine its internal security practices by requiring the Agency to use some form of disposable thermometer. Accordingly, and for the reasons more fully set forth in Rock Island I, we find that Proposal 4 directly interferes with section 7106(a)(1) of the Statute. We also find, contrary to the Union's assertion, that the proposal does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. The Authority has held that proposals that directly interfere with the exercise of a management right do not constitute negotiable procedures under section 7106(b)(2) of the Statute. See, for example, National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA 479, 487 (1991).
However, we find that the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. In this regard, the Union states that the proposal is designed to minimize the repercussions to employees of erroneous test results that result from faulty thermometers or bulbs that have been contaminated by previous specimens. Based on this explanation, we find that the proposal is intended to be an arrangement for employees adversely affected by the exercise of management's right to determine its internal security practices.
We also find, on balance, that the proposal would not excessively interfere with the exercise of management's right to determine its internal security practices. We find that the benefits to employees inuring under the proposal outweigh the burdens imposed on management's ability to select the type of equipment that will be used to measure the temperature of the specimens. The risks that employees could face if specimens were to be tested with a faulty thermometer or with a thermometer that had been contaminated by a prior specimen, and the negative consequences that could flow from an inaccurate temperature reading, are significant. By contrast, the burden imposed on the Agency's right to determine its internal security practices would be minimal. We note, in this regard, that there has been no showing that the reliability of any drug tests would be impaired in any way by using some form of disposable thermometer. When the risks to employees from faulty or contaminated equipment are weighed against the minimal intrusion on the Agency's right to determine its internal security practices, we conclude that the proposal would not excessively interfere with the exercise of management's right. Therefore, the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Compare Rock Island I, 30 FLRA at 1060-61 (proposal held not to be appropriate arrangement as benefits to employees did not outweigh burden on management's choice of testing methods).
In sum, we find Proposal 4 to be a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
VI. Proposal 5
If a selected employee is unable to provide a sufficient volume of urine within a reasonable period of time on the appointed day, the employee may return the next day to void the necessary amount. [Only the underlined portion is in dispute.]
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 5 is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute, and because it is inconsistent with the Guidelines. With respect to the first contention, the Agency notes that an HHS publication entitled "Medical Review Officer Manual: A Guide to Evaluating Urine Drug Analysis" (Manual) directs that there be a firm policy against permitting an employee who is unable to provide a sufficient sample to return the following day to void an additional amount to complete the sample. The Agency notes that this policy is designed to prevent the user of illicit drugs from purging his or her system in the interim in order to avoid detection, and that this policy is fully supported by the Agency. The Agency also notes in its supplemental submission that in Aberdeen II the court viewed the Manual as part of the Guidelines and, therefore, as a binding Government-wide regulation. The Agency asserts that by permitting an employee to return the following day to complete the sample, the proposal would frustrate the purpose of the drug testing program, thereby directly interfering with management's right to determine its internal security practices.
The Agency also contends that the proposal conflicts with section 2.2(f) of the Guidelines by, in effect, permitting a split sample to be presented to the Medical Review Officer (MRO) that does not fully comport with the Guidelines.
2. The Union
The Union argues that the proposal does not interfere with the Agency's internal security practices. The Union argues that because an employee is selected at random for drug testing and not because he or she is suspected to have used illegal drugs, there is no need for the Agency to institute restrictive measures. The Union also argues that the Agency's Plan, which provides for the deferral of drug testing when an employee is on leave or on official travel away from the test site, contradicts the Agency's position that internal security concerns dictate that a urine sample be provided "only on the appointed day." Union Response at 31. (Emphasis in original).
The Union also contends that the Agency's argument that the proposal conflicts with a Government-wide regulation is without merit. The Union states that the Manual is not, as the Agency asserts, part of the Guidelines and is not a Government-wide regulation that would preclude bargaining under section 7117(a)(1) of the Statute. In any event, the Union argues, the proposal does not conflict with the Guidelines, which require the collection site monitor to contact an appropriate authority if an employee is unable to produce a sufficient specimen. The Union argues that the proposal would provide the guidance to the collection site monitor, which would consist of allowing the employee to return the next day.
Finally, the Union argues that the proposal is negotiable either as a procedure under section 7106(b)(2) or alternatively, as an appropriate arrangement under section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
Proposal 5 would allow an employee to return on the day following a drug test if he or she is unable to provide a sufficient volume of urine within a reasonable period of time on the test day. We find that Proposal 5 is inconsistent with the Guidelines and, therefore, that the proposal is nonnegotiable under section 7117(a)(1) of the Statute.
The proposal here is to the same effect as Provision 4 in Sierra Army Depot, 37 FLRA at 1445. In that case, the union sought to bargain over a provision that would allow an employee to return the next day if a sufficient volume of urine was not produced on the appointed test day. We found the provision to be inconsistent with section 2.2(f) of the Guidelines, which provide instructions to the collection site person in the event that an employee sent for drug testing cannot provide a sample of sufficient size. We further found that the Guidelines constitute Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. Because the provision did not allow for compliance with the Guidelines' instructions but, instead, set forth an alternative procedure, we found the provision to be inconsistent with the Guidelines and outside the duty to bargain under section 7117(a)(1). We reach the same result here. Moreover, we reject the Union's argument that the proposal may constitute the guidance that might otherwise be provided to the collection site person confronted with an employee who is unable to provide a sufficient sample. As we stated in Sierra Army Depot, an alternative procedure to that set forth in the Guidelines, which Proposal 5 would constitute, is inconsistent with the Guidelines. Consequently, Proposal 5 is outside the duty to bargain.
Because we have found that Proposal 5 is inconsistent with a Government-wide regulation and is nonnegotiable under section 7117(a)(1) of the Statute, we need not reach the additional arguments raised by the parties. More particularly, with regard to the Union's arguments that the proposal constitutes a negotiable procedure or appropriate arrangement under sections 7106(b)(2) or 7106(b)(3), those sections apply only when an agency exercises the management rights set out elsewhere in section 7106, and do not apply when a proposal is inconsistent with section 7117(a)(1) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 3232 and Department of Health and Human Services, Social Security Administration, Region II, 31 FLRA 355, 359 (1988).
VII. Proposal 7
If an employee chosen for urinalysis wishes to arrange for private testing within 24 hours of having provided the sample, the employee shall be entitled to up to 4 hours of official time. [Only the underlined portion is in dispute.]
A. Positions of the Parties
1. The Agency
The Agency contends that