42 FLRA No. 33

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of 33 proposals addressing the Agency's implementation of its drug testing program. The Agency filed a statement of position and the Union filed a reply brief. Both parties filed supplemental submissions.

We find that Proposal 2, which would bar the Agency from removing from Government service an employee who refused to enter counseling or rehabilitation after a confirmed positive drug test or who twice tested positive for illegal drug use, is nonnegotiable because it conflicts with law and Government-wide regulation.

Proposal 4, which provides that drug tests are to be administered "only where there is a specific objective reason to believe that the person who is to be tested is jeopardizing workplace safety or is not performing his or her job because of on the job intoxification [sic] or impairment[,]" is nonnegotiable insofar as it applies to random drug testing and to reasonable suspicion testing of employees who encumber security or safety-sensitive positions because it excessively interferes with the Agency's right to determine its internal security practices. Insofar as Proposal 4 applies to reasonable suspicion testing of employees who do not encumber such positions, it is negotiable.

Proposal 5, which requires that a supervisor provide written specific reasons for ordering a drug test at the time an employee is notified that he or she will be tested based on reasonable suspicion or an accident, and which requires management to give an employee a reasonable opportunity to contact a Union official prior to undergoing drug testing, is negotiable.

Proposal 9, which would prevent the Agency from sending a specific notice informing employees that they are in testing designated positions (TDPs) until 60 days after they have received the general notice required by law, is negotiable.

Proposal 12, which provides that only those positions with duties requiring incumbents to hold top secret security clearances may be designated as TDPs, is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices.

Proposal 14, which allows unit employees to request Agency review of decisions to designate the employees' positions as TDPs without regard to the time limit contained in the Agency's drug testing plan, except when the employee is ordered to undergo testing, is negotiable.

We dismiss the Union's petition for review of Proposal 19 because there is no dispute presently before us as to the negotiability of the proposal.

Proposals 21-25, which would permit drug testing in connection with an accident or unsafe practice only when there is a reasonably apparent relationship between the accident or practice and illegal drug use, are nonnegotiable because they excessively interfere with the Agency's right to determine its internal security practices.

Proposal 27, which provides that employees who participate in drug rehabilitation programs would not be required to submit to a total of more than 12 drug tests during a 1-year period, is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices.

Proposal 28, which provides that employees may only be tested for drugs during their regular working hours, may not be required to report outside of their regular working hours for the purpose of drug testing, and may not be required to remain after their regular working hours in order to complete a drug test, is nonnegotiable because it conflicts with a Government-wide regulation.

Proposal 29, which would prohibit the Agency from cancelling employees' scheduled leave or their travel on Agency business if employees are directed to report for a random drug test, is negotiable insofar as it concerns leave but nonnegotiable insofar as it concerns travel because it excessively interferes with the Agency's rights to determine its internal security practices and to assign work.

Proposal 30, which requires that the Agency collect specimens "in a manner compatible with employee dignity[,]" and not subject "the tested employee to a degrading experience[,]" is negotiable.

Proposal 31, which would prevent the Agency from requiring an employee to submit to a search, frisking, or disrobing before a drug test, is negotiable.

Proposal 32, which requires that reasonable suspicion testing be performed only when the Agency concludes that an employee's abnormal conduct or behavior is reasonably related to illegal drug use, is negotiable.

Proposal 35, which prohibits the use of any drug test which can not show impairment of work performance, is nonnegotiable because it is inconsistent with Government-wide regulations.

The first sentence of Proposal 39, which requires the Agency to reimburse employees for costs associated with challenging drug tests, is dismissed because there is an insufficient record on which to determine its negotiability. The second sentence of Proposal 39, which requires the Agency to provide certain employees with payment for mental duress, is nonnegotiable because it concerns matters which are specifically provided for by Federal law and, therefore, is excluded from the definition of conditions of employment.

Proposal 42, which requires the Agency to make a reasonable accommodation for an employee who is an illegal drug user, is nonnegotiable because it conflicts with law and Government-wide regulation.

Proposal 44, which would limit the Agency's choice of penalties for on-the-job infractions stemming from substance-induced impairment, is nonnegotiable because it excessively interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.

Proposal 47, which would preclude the Agency from disciplining employees who are found to use illegal drugs provided that they identify themselves as illegal drug users, obtain counseling or rehabilitation, and thereafter do not use illegal drugs, is nonnegotiable because it conflicts with law and Government-wide regulation.

Proposal 50, which requires that the Agency be able to provide certain reasons to support a belief that an employee may alter or substitute a sample before assigning an observer to oversee the provision of that sample, is negotiable.

Proposals 51 and 52, which would prevent direct observation of an employee's provision of a urine sample solely on the basis that the employee is undergoing reasonable suspicion testing, are negotiable.

Proposal 53 and the portion of Proposal 54 which would allow employees to identify themselves as illegal drug users and seek rehabilitation without being subject to additional drug testing, are nonnegotiable because they excessively interfere with the Agency's right to determine its internal security practices. We dismiss the Union's petition as to the portion of Proposal 54 which addresses the confidentiality of certain information relating to drug testing because the record before us is insufficient to determine its negotiability.

Proposal 59, which would require the Agency to bear any Union expenses incurred in litigation concerning the Agency's drug testing program, is nonnegotiable because it is inconsistent with law.

Proposal 61, which would require the Agency to delete statements in its drug testing plans stating that random drug testing is mandated by Executive Order 12564, is negotiable.

Proposal 62A, which provides that the Agency may grant an employee permission to leave a collection site before providing an adequate specimen if the employee has a compelling personal need to do so, is negotiable.

Proposal 66, which would prevent the Agency from randomly testing an employee for illegal drug use when the employee has previously undergone drug testing because of an accident or reasonable suspicion and the analysis of the prior test is incomplete, is negotiable.

II. Preliminary Issues

A. Proposals Properly Before the Authority

Following the issuance of the Agency's drug testing plans, the parties met to negotiate over various aspects of the plans. The Agency asserts that the parties reached agreement on certain proposals, other than the ones now before us, and that the Union refused to execute a written agreement embodying those agreements. Although the Union agrees that certain agreements were reached, it asserts that the Agency has refused to execute a written agreement and that it filed an unfair labor practice (ULP) charge concerning the matter. The Union argues that the issues raised in the ULP charge are not relevant here because the matters about which the Agency allegedly refused to execute a written agreement are not contained in the Union's petition for review.

Except for Proposal 19, which will be discussed separately, neither party claims that any of the proposals contained in the Union's petition for review are not properly before us in this proceeding. We will, therefore, address those proposals. To the extent the parties are in dispute over matters other than those raised in this negotiability appeal, such dispute should be resolved in other appropriate proceedings. For example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990).

B. Supplemental Briefs

In its petition for review, the Union argued that certain of its proposals constitute negotiable appropriate arrangements under section 7106(b)(3) of the Statute. Subsequently, in its Reply Brief, the Union claimed that all the proposals are negotiable as appropriate arrangements.

The Agency filed a motion to strike the assertion in the Union's reply brief that all its proposals constitute appropriate arrangements, arguing that by failing to assert in its petition for review that all the proposals constituted appropriate arrangements, the Union failed to timely raise the issue. Alternatively, the Agency requested permission to file a supplemental brief addressing the Union's appropriate arrangement arguments.

The Union filed an opposition to the Agency's motion to strike. The Union also requested the opportunity to respond to the Agency's supplemental brief, if the Authority permitted the Agency to file such a brief.

The Authority denied the Agency's motion to strike. Noting that the Union did not object to the Agency's supplemental brief, the Authority accepted the brief. The Authority also permitted the Union to file a response to the Agency's supplemental brief. The Union then filed a response.

III. Proposal 2

The parties agree that all employees have a right to their privacy and that adverse action against an employee for off duty conduct should only be taken if it can be demonstrated that the employee's off duty conduct is specifically and directly impairing the employee's on-the-job performance.

A. Positions of the Parties

1. The Agency

The Agency points out that section 5(f)(2) of Executive Order 12564 (the Executive Order) states that an employee's illegal drug use may be determined based on, among other things, "a criminal conviction, administrative inquiry, or the results of an authorized testing program." The Agency argues that, under the Executive Order,

the circumstances in which an employee must be disciplined are not limited to those where the drug use can be shown to have actually impaired the employee's physical ability to perform his duties on-the-job. Rather, it encompasses, as well, circumstances where the use of illegal drugs is inconsistent with the nature of the employee's duties and the mission of the agency concerned.

Statement of Position at 4. The Agency asserts that, by limiting adverse actions based on off-duty conduct to conduct that specifically and directly impairs an employee's on-the-job performance, the proposal violates the Executive Order.

In addition, the Agency contends that Proposal 2 interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute because it "implicitly 'establishes a standard to determine what are sufficient grounds to require a drug test.'" Statement of Position at 6 (quoting International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269, 274 (1988)). The Agency further contends that the proposal is inconsistent with the Agency's drug plan, which requires that some disciplinary action be taken against employees in sensitive positions who are found to use illegal drugs. The Agency argues that a compelling need exists for its plan. Furthermore, the Agency argues that, by establishing criteria for the imposition of discipline, the proposal interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.

The Agency contends that Proposal 2 also is inconsistent with Government-wide standards of conduct published by the Office of Personnel Management (OPM) at 5 C.F.R. Part 735. Specifically, the Agency asserts that the proposal conflicts with the standards of conduct because it would bar discipline for conduct that is prejudicial to the Government.

Finally, the Agency asserts that Proposal 2 is not an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency contends that, instead of constituting an arrangement for employees adversely affected by a management action, the proposal prevents management from imposing discipline in certain circumstances. The Agency asserts that any adverse effect results from employee misconduct in using illegal drugs. In the Agency's view, "the employee's interests in that situation are not entitled to be given sufficient weight to consider the proposal as not excessively interfering with the right to discipline." Supplementary Brief at 17.

2. The Union

The Union contends, citing 5 U.S.C. § 2302(b)(10), that "one should assume that the Executive Order was not designed to overturn the expressed intention of Congress which provided that employees should not suffer discrimination on the basis of conduct 'which does not adversely affect the performance of the employee or applicant or the performance of others . . . .'" Reply Brief at 3. The Union asserts that the Executive Order allows management the discretion to "require a positive test and a finding of on-the-job impairment before determining that illegal drug use exists for purposes of discipline required by the Executive Order." Id. at 3-4 (emphasis in original). Therefore, in the Union's view, the proposed limitation on adverse action for off-duty conduct is consistent with the Executive Order.

The Union denies that Proposal 2 interferes with the Agency's rights to determine its internal security practices and to discipline employees. According to the Union, the Agency retains authority, under the proposal, "to determine when an employee's off duty conduct would adversely affect security or impair the employee's ability to perform his or her job." Id. at 4.

The Union also argues that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. With regard to the Agency's right to determine its internal security practices, the Union contends that the proposal protects employees from invasions of privacy and from false positive test results. Such protection, the Union asserts, "weighs more heavily than the minimal impact on management's ability to establish its internal security policies and practices." Response to Agency's Supplementary Brief at 8. Concerning the Agency's right to discipline, the Union argues that employees' privacy interests "outweigh management's interest in taking discipline, where the employee is not doing anything that would undermine the efficiency of the Federal service." Id. Finally, the Union asserts that Proposal 2 does not conflict with the Executive Order, which, in the Union's view, "does not require that a drug testing program include random urinalysis." Id.

B. Analysis and Conclusions

We note first that in NTEU v. Yeutter, 918 F.2d 968 (D.C. Cir. 1990), the United States Court of Appeals for the District of Columbia Circuit addressed, among other things, the constitutionality of the drug testing plan of the U.S. Department of Agriculture as it applied to certain employees. The court concluded, as relevant here, that "the USDA Program is unconstitutional insofar as it authorizes mandatory drug testing of . . . [employees] who do not hold safety- or security-sensitive jobs, absent reasonable suspicion of on-duty drug use or drug-impaired work performance." Id. at 974. Subsequently, the Office of Personnel Management (OPM) announced that as a result of the decision in NTEU v. Yeutter, it is revising its "guidance" in FPM Letter 792-19 insofar as it pertains to reasonable suspicion testing. U.S. Office of Personnel Management, New Developments in Employee and Labor Relations (July 1991) at 3 (OPM Developments). In particular, OPM states that "[e]mployees who do not occupy safety/sensitive positions may only be required to undergo reasonable suspicion testing due to on-duty drug use or impairment." Id.

Proposal 2, however, does not concern the circumstances under which an employee may be subject to a drug test. Rather, Proposal 2 concerns limitations on the Agency's right to take an action against an employee after the employee has had a confirmed positive drug test. In this regard, section 5(d) of the Executive Order requires agencies to "initiate action to remove from the service any employee who is found to use illegal drugs" and refuses to enter counseling or rehabilitation, or subsequently fails to remain drug free. Section 5.d(8) of FPM Letter 792-19 states that "[i]nitiating action to remove the employee from Federal service is mandatory upon a second verified finding of illegal drug use." It is clear, therefore, that the Executive Order and the FPM Letter require separation of an employee for use of illegal drugs, in certain circumstances, whether or not the drug use adversely affects the employee's job performance. See also American Federation of Government Employees, Local 1692 and U.S. Department of the Air Force, Mather Air Force Base, California, 40 FLRA 868, 872 (1991) (Mather AFB).

The Union does not explain the meaning of the term "adverse action" in Proposal 2. Therefore, we will construe that term as it is defined in law and regulation. "Adverse action," as defined in 5 U.S.C. § 7512 and 5 C.F.R. § 752.401, includes removals. Interpreting "adverse action" in Proposal 2 consistent with these provisions, the proposal would bar the Agency from removing from Government service an employee whose removal is required by the Executive Order and the FPM Letter. That is, under the proposal, the Agency could not remove an employee solely because the employee refused counseling or rehabilitation after a confirmed positive drug test, or twice tested positive for illegal drug use. Consequently, Proposal 2 is inconsistent with section 5(d) of the Executive Order and section 5.d(8) of the FPM Letter. Compare Mather AFB, 40 FLRA at 874-75 (proposal precluding discipline in circumstances where discipline is not required by the Executive Order held to be negotiable appropriate arrangement).

Executive Order 12564 and FPM Letter 792-19 constitute, respectively, law and Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. For example, International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1524 (1991) (Bureau of Reclamation). Accordingly, as Proposal 2 is inconsistent with law and Government-wide regulation, it is nonnegotiable under section 7117(a)(1) of the Statute. As the proposal is nonnegotiable under section 7117(a)(1), we do not address the Agency's other arguments concerning the proposal. We also do not consider whether the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. See, for example, id. at 1529.

IV. Proposal 4

Drug tests are to be administered only where there is a specific objective reason to believe that the person who is to be tested is jeopardizing workplace safety or is not performing his or her job because of on the job intoxification [sic] or impairment.

A. Positions of the Parties

1. The Agency

The Agency argues that Proposal 4 is inconsistent with the "deterrent purpose" of Executive Order 12564 by preventing management from testing employees on a random basis and, therefore, is outside the duty to bargain under section 7117(a)(1) of the Statute. Statement of Position at 11 (emphasis omitted). The Agency further argues that Proposal 4 violates the Executive Order because it would prevent management from testing employees regardless of whether the Agency has a reasonable suspicion that the employee's performance or the safety of other workers is being adversely affected by the employee's off-duty drug use.

The Agency also argues that Proposal 4 interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency claims that the random testing required by the Agency plan and the Executive Order is a necessary part of the Agency's internal security practices for the reasons expressed by the agency concerning proposal 1 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 (1988) (Rock Island I), remanded 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, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 936 (1990) (Rock Island III).

In addition, the Agency argues that the proposal violates its right to discipline employees under section 7106(a)(2)(A) of the Statute. According to the Agency, employees may be disciplined for off-duty illegal drug use for reasons other than those identified in the proposal, such as when drug use is found to be inconsistent with the performance of an agency's mission. The Agency argues that, by limiting testing and possible disciplinary action to occasions when an employee is jeopardizing the workplace or failing to perform his or her duties, the proposal conflicts with the exercise of management's right to discipline.

The Agency rejects the Union's argument that Proposal 4 constitutes an appropriate arrangement. The Agency claims that the proposal would, in certain circumstances, preclude management from conducting any drug tests. In the Agency's view, even if the proposal could be viewed as an arrangement, the proposal's interference with management's right to conduct drug tests would be excessive.

The Agency also argues that the proposal violates various sections of the Agency plan which require that employees in TDPs be tested on a random basis. According to the Agency, there is a compelling need for the Agency plan under two of the criteria set forth in section 2424.11 of the Authority's Rules and Regulations for establishing compelling need. First, the Agency argues that random testing is essential to deter and detect illegal drug use and, thereby, effectively and efficiently to fulfill the Agency's law enforcement mission. Second, the Agency contends that random testing is mandated by Executive Order 12564.

Finally, the Agency claims that the proposal violates 5 C.F.R. § 735.209, a Government-wide regulation, by barring discipline for conduct that is prejudicial to the Government.

2. The Union

The Union denies that Executive Order 12564 requires random drug testing. In the Union's view, Proposal 4 is consistent with section 4(c)(1) of the Executive Order, which authorizes testing when there is a reasonable suspicion that an employee has engaged in illegal drug use.

The Union also disputes the Agency's assertion that the proposal interferes with management's right to determine its internal security practices. According to the Union, the organizational elements it represents perform Agency functions "such as payroll and mail distribution." Reply Brief at 6. The Union argues that, as applied to the bargaining unit, "[t]he purposes of the [Agency's] Plans are geared toward the efficiency of operations rather than to internal security." Id. Consequently, the Union argues that the proposal does not interfere with the Agency's internal security practices. However, if Proposal 4 is construed as involving the exercise of management's right to determine its internal security, the Union asserts that the proposal constitutes a negotiable appropriate arrangement.

The Union also disputes the Agency's argument that there is a compelling need for the Agency's plan encompassing random testing. According to the Union, the Agency has conceded that there is no widespread drug problem among its employees.

Finally, the Union argues that the proposal does not conflict with 5 C.F.R. § 735.209. According to the Union, the proposal would enable the Agency to measure employee conduct against appropriate regulatory standards.

B. Analysis and Conclusions

Proposal 4 would limit the circumstances in which the Agency could administer drug tests to those where there is a specific objective reason to believe that the employee who will be tested is either jeopardizing workplace safety or not performing work because of intoxication or impairment on the job. Consistent with the parties' arguments, and the plain wording of the proposal, we construe the proposal as applying to both random and reasonable suspicion testing. We will address the two types of testing separately.

1. Random Testing

Management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to establish a random drug testing program for employees in sensitive positions. See American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203, 1207 (1990) (Member Talkin dissenting as to other matters) (Fort Leavenworth). Random drug testing is linked to management's right to determine its internal security practices because it contributes to the objective of protecting the Agency's personnel, property, and operations from the threat of employee use of illegal drugs. Id.

Proposals prescribing 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. Id. Accordingly, as Proposal 4 would preclude random drug testing, unless there is objective reason to believe that an employee's drug use is jeopardizing workplace safety or adversely affecting work performance, it directly interferes with management's right to determine its internal security practices.

We also find that Proposal 4 is not an appropriate arrangement within the meaning of section 7106(b)(3). To determine whether a proposal constitutes an appropriate arrangement, we must determine whether the proposal is: (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG).

The Union argues that Proposal 4 "moderates the effects" of the Agency's exercise of its right to determine its internal security practices. Response to Agency's Supplementary Brief at 9. It is clear, therefore, that Proposal 4 is intended to be an arrangement to minimize the adverse effects of management's imposition of a random drug testing program. Moreover, by limiting the circumstances in which the Agency could require employees to submit to random drug tests, the proposal would reduce the possibilities that employees would be disciplined, or otherwise adversely affected, as a result of such tests. Accordingly, we conclude that Proposal 4 constitutes an arrangement.

To determine whether a proposal excessively interferes with management's rights, the Authority balances the competing practical needs of employees and managers as they are affected by the proposal. See id. at 31-32. In this regard, an agency's implementation of a drug testing program may adversely affect employees' personal privacy. See American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1094-95 (1990) (Department of Education), decision on reconsideration 39 FLRA 1241 (1991), petition for review filed sub nom. U.S. Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 1, 1991). See also National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384, 1390 (1989) (NTEU v. Von Raab); Section 4(c) of Executive Order No. 12564. In addition, employees subject to drug testing whose tests produces false positive results as well as employees who are disciplined or reassigned as a result of confirmed positive tests are adversely affected. See U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 719 (1991), petition for review filed sub nom. Professional Airways Systems Specialists Division, District No. 1-MEBA/NMU, AFL-CIO v. FLRA, No. 91-1310 (D.C. Cir. June 28, 1991). Proposal 4 would provide employees with significant benefits. It would reduce the potential for an employee's privacy being invaded by a drug test. In addition it would reduce the possibility of false positive drug test results. Finally, the proposal would reduce the likelihood that employees would be disciplined as a result of confirmed positive drug tests.

However, the proposal also would affect significantly the Agency's rights. The proposal would preclude random drug tests unless the Agency had specific, objective reason to believe that the employee to be tested was jeopardizing safety in the workplace or was not performing his or her job because he or she was under the influence of drugs. In effect, the proposal would severely limit the Agency's right to conduct random drug tests. This limitation, in turn, would affect significantly the Agency's ability to identify individuals whose illegal drug usage could disrupt Agency operations, result in the destruction of property, or threaten the safety of themselves and others, and, thereby, to safeguard its personnel and property.

In our view, the proposal's imposition of severe limitations on the Agency's authority to conduct random drug tests outweighs the benefits afforded employees by the proposal. See Rock Island I, 30 FLRA at 1057-58. Accordingly, insofar as Proposal 4 encompasses random tests, it is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. In view of our determination, we do not address the Agency's other arguments concerning the proposal as it relates to random testing. We note, however, that the Authority has held consistently that neither Executive Order 12564 nor FPM Letter 792-19 requires an Agency to conduct random drug testing. See, for example, Rock Island I at 1054-55.

2. Reasonable Suspicion Testing

As noted earlier in this decision, employees who do not occupy safety- or security-sensitive jobs may only be required to undergo reasonable suspicion testing due to on-duty drug use or impairment. NTEU v. Yeutter; OPM Developments at 3.

The record before us does not disclose whether the unit employees to whom Proposal 4 would apply occupy "safety- or security-sensitive jobs," as discussed by the court in NTEU v. Yeutter, or "safety/sensitive positions" as referenced by OPM in its recent issuance. It is reasonable to assume, however, that the unit encompasses some employees occupying safety- or security-sensitive positions as well as some who do not.

With respect to employees who occupy positions designated as safety- or security-sensitive, nothing in NTEU v. Yeutter or the OPM issuance affects our previous discussion of Proposal 4 as it relates to the Agency's right to determine its internal security practices. That is, for the same reasons as we found that Proposal 4 directly and excessively interferes with the Agency's right in connection with random testing, we conclude that the proposal directly and excessively interferes with that right in connection with reasonable suspicion testing. We do not, therefore, address the Agency's assertion that the proposal directly interferes with its right to assign work. In addition, as noted previously, neither the Executive Order nor FPM 792-19 requires an agency to engage in reasonable suspicion testing. We would not, therefore, find that the proposal conflicts with that law and regulation.

With respect to employees who do not occupy such positions, however, we conclude that Proposal 4 is negotiable. We note, at the outset, that the standard applied in Proposal 4 to reasonable suspicion testing is consistent with the standard applied by the court in NTEU v. Yeutter. Proposal 4 would require reasonable suspicion testing to be based on a "reason to believe" that the affected employee "is jeopardizing workplace safety or is not performing his or her job because of on the job intoxification [sic] or impairment." The standard applied by the court for such tests, with respect to employees who do not encumber security or safety sensitive positions, is "reasonable suspicion of on-duty drug use or drug-impaired work performance." NTEU v. Yeutter, 918 F.2d at 974. OPM states that FPM Letter 792-19 will encompass the same standard: "on-duty drug use or impairment." OPM Developments at 3.

In the absence of an assertion to the contrary, we find that the reference in Proposal 4 to intoxication on the job clearly would encompass on-duty drug use. On-duty impairment is expressly referenced in Proposal 4. As such, Proposal 4 would apply no different standard to the Agency's right to conduct reasonable suspicion testing for employees who do not encumber security or safety sensitive positions than that applied by the court, as adopted by OPM.

The standard imposed by the proposal on the Agency's conduct of reasonable suspicion testing, as it relates to employees who do not encumber security or safety sensitive positions, is no more restrictive than the standard established by the court in NTEU v. Yeutter, and adopted by OPM. Assuming that such limitation directly interferes with the Agency's right to determine its internal security practices, we nevertheless conclude that Proposal 4 would not excessively interfere with the Agency's right to determine its internal security practices in connection with such testing of such employees. We note, in this regard, that the Agency would retain all rights to direct affected employees to undergo drug testing based on any reasonable suspicion as a result of on-duty drug use or impairment. Moreover, the Agency has articulated no interest in acting in these circumstances without regard to Constitutional and other standards. See National Federation of Federal Employees, Council of GSA Locals and General Services Administration, 41 FLRA 728, 750 (1991) (GSA) (agency did not assert, and Authority could not discern, an interest in acting without regard to its regulations). Compare Department of Education, 38 FLRA at 1074-79 (agency did not demonstrate that a proposal requiring it to exercise its right to determine its internal security practices in accordance with the U.S. Constitution and other laws and regulations excessively interfered with its right). Indeed, we assume that the Agency's plan would be applied in a lawful manner consistent with governing regulations. See Rock Island I, 30 FLRA at 1051-52.

In addition, as noted previously, Proposal 4 would afford significant benefits to employees who do not occupy safety or security sensitive positions. In particular, among other things, Proposal 4 would ensure that they would be subject to reasonable suspicion testing only for suspicions resulting from their conduct or performance on the job. That is, Proposal 4 would ensure that the Agency exercised its right, as employer, to require an employee to submit to drug testing only as a result of reasonable suspicions based on the employer-employee relationship.

In these circumstances, we conclude that Proposal 4, insofar as it relates to reasonable suspicion testing of employees who do not hold safety or security sensitive positions, does not excessively interfere with the Agency's right to determine its internal security practices. We find, for the same reasons, that even if the proposal directly interferes with the Agency's right to assign work, it does not do so to an excessive degree. Accordingly, as the proposal is not inconsistent with the Executive Order or FPM Letter 792-19, and as no other basis for finding the proposal nonnegotiable is asserted by the Agency or apparent to us, we find, in this limited circumstance, that Proposal 4 is negotiable.

C. Summary

For the foregoing reasons, we conclude that insofar as Proposal 4 applies to random testing and to reasonable suspicion testing in connection with employees encumbering safety or security sensitive positions, it is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices. Insofar as Proposal 4 applies to reasonable suspicion testing of employees who do not occupy safety or security sensitive positions, it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

V. Proposal 5

When a supervisor refers an employee for accident or reasonable suspicion testing, the supervisor will concurrently provide the employee with a written statement of specific reasons forming the basis for the referral. The employee will be given a reasonable opportunity to contact a Union representative prior to being tested.

A. Positions of the Parties

1. The Agency

The Agency asserts that Proposal 5 violates management's right under section 7106(a)(2)(B) of the Statute to assign work by making supervisors responsible for providing employees with written justifications for requiring them to undergo drug testing. The Agency contends that the proposal also interferes with management's right to determine its internal security practices under section 7106(a)(1). The Agency reasons that the proposal's requirement to provide an affected employee with the specific reasons forming the basis for ordering a drug test would compromise investigations surrounding accidents or reasonable suspicion situations, particularly with regard to divulging the names of individuals who may have provided management with information. According to the Agency, providing employees with written justifications for drug testing, in the case of accident testing, and allowing employees to contact a Union official prior to the testing would cause delays potentially affecting the outcomes of the drug tests. The Agency also argues that no right to representation during a drug test is afforded by section 7114(a)(2)(B) of the Statute.

The Agency also asserts that the proposal interferes in two ways with its right under section 7106(a)(2)(A) to direct employees. First, according to the Agency, "it is undisputable that management has a right to 'direct' an employee to carry out any legitimate instruction--including reporting to a specimen collection site--and that the right 'to direct' encompasses the right to direct in whatever form management chooses, that is[,] orally or in writing." Statement of Position at 21. Second, in the Agency's view, the opportunity to contact a Union representative interferes with the right to direct employees because "this right also includes the right to require the employee to routinely obey orders without contacting a Union representative first . . . ." Id. Finally, the Agency asserts that Proposal 5 is not an appropriate arrangement under section 7106(b)(3) of the Statute because it excessively interferes with management's rights to determine its internal security practices, to direct employees, and to assign work.

2. The Union

The Union contends that Proposal 5 "sets forth a negotiable procedure to be followed when an employee is referred for accident or reasonable suspicion testing. The government's regulation sets forth certain bases for accident or reasonable suspicion testing, so that a supervisor would be expected to have a reason for referring an employee for testing under these circumstances." Petition for Review at 4. The Union points out that the Agency's drug plan requires consultation among the supervisor, the official responsible for the Employee Assistance Program, and a higher-level supervisor before ordering a drug test of an employee based on reasonable suspicion. Therefore, in the Union's view, "the assignment of work has already been mandated by the Plan itself." Reply Brief at 8. The Union asserts that:

[t]he supervisor need not disclose the identification of informants nor state the explanation in a way that will impede further investigation. Written memorialization of the reasons for the test will not take such amount of time as would unduly delay and affect the outcome of the test. The internal security measures of the Agency would not be materially affected.

Id.

The Union contends that Proposal 5 does not interfere with the Agency's right to assign work because there is no requirement that the supervisor prepare the statement. According to the Union, "[t]o require the supervisor to act as a conduit has minimal impact on management's right to assign work." Response to Agency's Supplementary Brief at 10-11. The Union contends that Proposal 5 will "not unduly delay the exercise of management's rights." Reply Brief at 7-8. The Union asserts that the reasonable opportunity required by the proposal to contact a Union representative "amounts to allowing the employee to call the Union official to discuss the situation prior to going for testing." Id. at 8.

The Union also asserts that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union states that providing employees with the reasons for drug tests "balances the Agency's concerns with detecting the reasons for accidents or addressing their reasonable suspicion that drug use may be present, while safeguarding the employee against baseless referrals to the urine collection site." Response to Agency's Supplementary Brief at 10. The Union disputes the Agency's position that the requirement for concurrent written justification establishes a pre-condition to testing rather than an arrangement for employees affected by such testing. The Union contends that the Agency's exercise of its right to determine its internal security practices "begins when the employee is first ordered to go to the drug [sic] collection site, and not after he has finished providing the urine sample." Id. As for allowing the employee to contact a Union representative prior to testing, the Union argues that the proposal allows only a reasonable opportunity to contact a Union official and does not require a delay which would affect the outcome of the test. The Union further asserts that:

[b]eing detained at a collection site is an intimidating experience for employees who are being sent as a result of their having had a workplace accident or as a result of their behavior. To receive the reassurance and guidance of a Union representative softens the psychological blow that goes along with that type of order from management, while not excessively interfering with management's rights.

Id. at 11.

B. Analysis and Conclusions

1. First Sentence of Proposal 5

Section 4.c of FPM Letter 792-19 provides, among other things, that employees being tested for illegal drug usage because of reasonable suspicion or as part of an inquiry into an accident or unsafe practice will receive "notice that includes information contained in section 4b . . . ." As applicable to the dispute here, section 4.b(1) provides that affected employees will receive, in writing, information concerning "[t]he reasons for the urinalysis test, consistent with agency policy formulated in accordance with sections 1 and 3a. of this letter."

The first sentence of Proposal 5 requires that a supervisor provide written specific reasons for ordering the drug test at the time an employee is notified that he or she will be tested based on reasonable suspicion or an accident. In our view the first sentence of the proposal is consistent with the provisions of FPM Letter 792-19, cited above. Under provisions of the FPM Letter, the notice to report for drug testing because of reasonable suspicion or accident/unsafe practice will include the reasons for conducting the drug test. We find that "referral," as used in the first sentence of the proposal, is synonymous with "notice," as used in the FPM Letter. That is, both words refer to the same event: management's order that a particular employee report for drug testing. In addition, we find no basis in the wording of the first sentence of the proposal to conclude that the proposal requires information that is more detailed than that required to be furnished to the affected employee by the FPM Letter. Accordingly, as the first sentence of the proposal requires nothing more than is required by the FPM Letter, we find that the first sentence of Proposal 5 is consistent with the Letter.

Next, we address whether, by requiring the Agency to provide an affected employee with the reason for requiring the employee to undergo a drug test following an accident or based on reasonable suspicion, the first sentence of the proposal impermissibly interferes with the Agency's exercise of its right to determine its internal security practices. The Agency asserts that the first sentence of Proposal 5 so interferes because it would: (1) require the disclosure of information which would compromise ongoing investigations; and (2) cause an unreasonable delay in effecting drug testing after an accident. For the following reasons, we reject the Agency's assertions and find that the first sentence of the proposal does not directly interfere with the Agency's right to determine its internal security practices.

First, we find nothing in the wording of the first sentence of Proposal 5 that would require the disclosure of information which would compromise ongoing investigations. Indeed, the Union disavows any such objective, asserting that "[t]he supervisor need not disclose the identification of informants nor state the explanation in a way that will impede further investigation." Reply Brief at 8. As the Union's statement is consistent with the wording of the first sentence, and as the first sentence requires nothing more than is required by the FPM Letter, we find that first sentence of Proposal 5 would not result in a compromise of an ongoing investigation.

Second, the Agency argues that the requirement for concurrent written justification for testing would cause delay in drug testing after an accident. The Agency states that such delay could potentially affect the outcome of drug tests and, thereby, interfere with its right to determine its internal security practices. As an example, the Agency posits a situation where "the employee's supervisor will not be at the scene of the accident but rather base his decision on a telephonic report from the scene. A requirement to provide a written statement of the reasons before directing the employee to provide a specimen will necessitate a delay which could affect the outcome of the test." Statement of Position at 18-19 (emphasis in original).

This Agency argument appears to be premised on an interpretation of the first sentence of the proposal as requiring a specified individual, an affected employee's immediate supervisor, to physically transmit the written statement encompassed by the first sentence. However, we find no such requirement in the plain wording of the first sentence of the proposal or in the Union's statement of intent. Instead, by its terms the first sentence of the proposal applies "[w]hen a supervisor refers an employee for accident or reasonable suspicion testing[.]" Accordingly, we interpret the proposal as enabling any Agency supervisor to provide the written statement. For example, in the case of accident or unsafe practice testing, "a supervisor," as used in the proposal, could be the Drug Program Coordinator, who is responsible for initiating testing in such circumstances under the Agency's Offices, Boards, and Litigation Divisions (OBD) drug testing plan. See Petition for Review, Exhibit 3 at 17.

Consequently, insofar as the Agency's argument regarding its right to determine its internal security practices is based on its claim that the first sentence of the proposal would delay drug testing until an affected employee's immediate supervisor provided the written statement, the argument is without merit. For the same reasons, we reject the Agency's argument that the first sentence of the proposal directly interferes with its right to assign work. The first sentence of the proposal would merely require an Agency official to perform a certain function. A proposal does not directly interfere with an agency's rights under section 7106 of the Statute simply because it requires the assignment of someone to implement the proposal. For example, National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA 174, 185 (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).

The Agency also asserts that "the requirement of writing itself will consume vital time." Statement of Position at 19. We find that argument unpersuasive. The first sentence of the proposal requires only that the reasons forming the basis for the referral to testing be furnished in writing to the employee. As we read the first sentence, the justification for post-accident testing requires nothing more than the fact that the accident is the type for which a drug test is required under Agency policy. There is no basis on which to conclude that the preparation of such a statement would cause a delay that would affect in any way the results of a drug test. We conclude, therefore, that insofar as the first sentence of the proposal relates to accident testing, it does not directly interfere with the Agency's right to determine its internal security practices.

With respect to reasonable suspicion testing, the FPM Letter requires, as noted previously, that an order that an employee undergo drug testing on such basis be accompanied by a written statement of circumstances forming the basis for such testing. See FPM Letter 792-19, section 4.c. Compliance with this Government-wide requirement would, of necessity, require preparation of such justification in advance of the order that an employee report for testing. The first sentence of the proposal requires only that the justification be provided to the affected employee at the time of referral to testing. Therefore, the first sentence of the proposal would result in no delay other than the minimal amount of time necessary to provide the statement to the employee. There has been no showing that such delay would affect the Agency's right to determine its internal security practices.

Moreover, even assuming that the delay resulting from preparation of the written statement of specific reasons constituted a direct interference with the Agency's right, the delay would be no greater than that which would otherwise be incurred as a result of complying with the FPM Letter. That is, any interference with the Agency's right would result from compliance with existing Government-wide regulations. We note, in this regard, that "the existence of applicable . . . regulations already serves to limit agency action and indicates that an agency's interest in being able to act without regard to those provisions . . . is negligible." Department of Education, 38 FLRA at 1078. On the other hand, the first sentence of the proposal would ensure that employees who are directed to take drug tests based on reasonable suspicion would be afforded the protections mandated by the FPM Letter. Such benefit to employees outweighs any minimal interference with the Agency's right to determine its internal security practices. Accordingly, even if the first sentence of the proposal were found to directly interferes with the Agency's right, it would be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. See id. at 1076-79.

In sum, we find that the first sentence of Proposal 5 is negotiable. The sentence would not affect the Agency's decision to require a drug test, would not compromise the security of the testing process, is consistent with FPM Letter 792-19, and does not directly interfere with the Agency's right to assign work. Insofar as the first sentence of the proposal concerns post-accident testing, it does not directly interfere with the Agency's right to determine its internal security practices. Even assuming that, insofar as the first sentence of the proposal concerns reasonable suspicion testing, it directly interferes with the Agency's right to determine its internal security practices, it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. See, Forest Service, 40 FLRA at 184-85.

2. The Second Sentence of Proposal 5

The second sentence requires management to give an employee a reasonable opportunity to contact a Union official prior to undergoing drug testing. According to the Union, "[a] reasonable opportunity to contact the Union representative can be given by allowing the employee to make a phone call before going to the test site." Petition for Review at 4. Further, the Union asserts that the second sentence of the proposal "does not require that the Union representative be present, and there is nothing to suggest that the contact would interfere with management's rights." Id.

As the Union's explanation is consistent with the plain wording of the second sentence of the proposal, we adopt it. Consistent with that explanation, we find that the second sentence, by requiring the Agency to provide an affected employee with an opportunity to contact a Union representative, by telephone if that is the most expeditious method, would not affect, in any way, the Agency's right to require testing or the outcome of a drug test. Accordingly, we find that the second sentence of Proposal 5 would not directly interfere with the Agency's right to determine its internal security practices. See Forest Service, 40 FLRA at 184 (proposal permitting union representation during the collection of urine specimens did not interfere with management's right to determine its internal security practices). Moreover, it is unnecessary to determine whether affected employees would be entitled to Union representation under section 7114 of the Statute in the circumstances encompassed by the proposal. Even if employees would not be so entitled, nothing in section 7114(a)(2) of the Statute prevents parties from negotiating contractual rights to union representation beyond those provided by that section. See Department of Education, 38 FLRA at 1088-89.

In conclusion, we find that both sentences of Proposal 5 are negotiable.

VI. Proposal 9

The individual notice of drug testing shall not be sent to employees until at least 60 days after their receipt of the general notice of drug testing.

A. Positions of the Parties

1. The Agency

The Agency argues that Proposal 9 is inconsistent with Executive Order 12564 and interferes with its rights to determine its internal security practices and discipline employees under, respectively, section 7106(a)(1) and (a)(2)(A) of the Statute.

The Agency argues that Proposal 9 conflicts with section 4(a) of the Executive Order because the intent of that section is that drug testing "will begin 61 days after the issuance of the general notice." Statement of Position at 29. The Agency contends that the parties are "barred by section 4(a) from extending the notice period or adding their own." Id. at 30. The Agency also asserts that section 4(c) of the Executive Order "contemplates implementation of drug testing when the section 4(c) general notice expires." Id. at 25. According to the Agency, Proposal 9 also is "'inconsistent with the spirit'" of section 4.b. of FPM Letter 792-19 because the Union intends that "the 60 day individual notice period be tacked on to the end of the general 60 day notice period[.]" Supplemental Brief in Support of Statement of Position at 25.

The Agency also contends that Proposal 9 directly interferes with management's right to determine its internal security practices by determining when management can institute drug testing. According to the Agency, the Union's intent in Proposal 9 is to require management to add an individual notice period to the 60-day general notice requirement in the Executive Order. Consequently, the Agency contends, Proposal 9 permits "employees whose illegal drug use might have been detected during the additional notice period, to continue that use for a longer period of time while avoiding detection." Statement of Position at 25. The Agency contends that Proposal 9's effect is the same as that of the proposal found nonnegotiable in U.S. Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414 (D.C. Cir. 1988).

The Agency also argues that Proposal 9 interferes with management's right to discipline by precluding management from taking "specific action (i.e., initiating random testing) to detect or prevent drug abuse which may be occurring during the arbitrary contractual extension of the 60-day notice provision" in the Executive Order. Statement of Position at 28-29. According to the Agency, management "must forego disciplining those employees" who continue to use illegal drugs during the extended notice period required by Proposal 9. Id. at 29. Moreover, the Agency asserts that Proposal 9's notice requirement would "preclude management from engaging in 'reasonable suspicion' and 'accident' and 'unsafe practices' testing for this extended period[.]" Id.

Finally, the Agency asserts that Proposal 9 is not a negotiable appropriate arrangement. The Agency contends that the Union failed to explain the adverse effects which would flow from testing or how the extension of the notice period would ameliorate the alleged adverse affects. According to the Agency, Proposal 9 would "altogether preclude management from exercising its rights under 5 U.S.C. § 7106(a)(1) and (2)(A) . . . ." Supplementary Brief at 23.

2. The Union

The Union asserts that Proposal 9 does not interfere with management's rights to determine its internal security practices and discipline employees. According to the Union, the individual notice concerns only random drug testing and is not "tied in with any specific security interests of the Agency." Reply Brief at 9. The Union also notes that accident and reasonable suspicion testing may go forward during the general notice period, and the Agency "is free to take appropriate disciplinary action in response to the results of those tests." Id. The Union contends that Proposal 9 is "procedural in nature" as it establishes "a time frame for notifying individual employees of their being in the random drug testing pool." Petition for Review at 4.

The Union also argues that Proposal 9 is an appropriate arrangement. In support, the Union asserts that "[t]he short delay" in conducting random drug testing does not excessively interfere with management's internal security rights. Response to Agency's Supplemental Brief at 12. The Union asserts that the proposal would facilitate an employee's entry into a drug recovery program.

B. Analysis and Conclusions

Executive Order 12564 and FPM Letter 792-19 provide, respectively, that general and special notices concerning drug testing be sent to employees. Section 4(a) of the Executive Order requires, with an exception not relevant here, that "[s]ixty days prior to the implementation of a drug testing program pursuant to this Order, agencies shall notify employees that testing for use of illegal drugs is to be conducted . . . ." FPM Letter 792-19, section 4.b., provides that "[a]gencies should ensure a specific notice is given, in writing, to each employee in a TDP [testing designated position] no later than thirty days before testing commences."

The Agency asserts that the proposal would require that employees be given 60-day individual notices in addition to the required 60-day general notice. Similarly, the Union refers to the proposal as encompassing an "additional 60 days . . . ." Response to Agency's Supplemental Brief at 12. We disagree, however, and find for the following reasons that these assertions are inconsistent with the plain wording of the proposal.

Proposal 9 prevents the Agency from sending the specific, or individual, notice informing employees that they are in TDPs until 60 days after they have received the general notice required by the Executive Order. That is, as plainly worded, Proposal 9 addresses only the timing of the receipt of the specific notice. The proposal does not establish, implicitly or explicitly, the length of the individual notice period itself. Moreover, there are no assertions in the record that the parties otherwise have agreed that employees would receive any more individual advance notice than the 30 days required by section 4.b. of FPM Letter 792-19. We assume, therefore, for the purposes of this decision, that Proposal 9 would require the Agency to wait until the 61st day after an employee's receipt of the general notice to provide the specific notice and that, consistent with the FPM Letter, the specific notice would provide 30 days' notice. In practical effect, the proposal would preclude the Agency from implementing a random testing program for 30 days beyond that required by law and regulation.

We reject the Agency's assertion that, by precluding the Agency from implementing testing on the 61st day after issuance of the general notice, Proposal 9 conflicts with section 4(a) of the Executive Order as well as the "spirit" of the FPM Letter. Supplemental Brief in Support of Statement of Position at 25. Nothing in section 4(a) of the Executive Order or in FPM Letter 792-19 requires that testing begin on the 61st day following issuance of the general notice. Indeed, section 4.a. of the FPM Letter provides that agencies must "ensure that at least sixty days elapse between a general one-time notice . . . and the beginning of actual drug testing." (Emphasis added.)

We also find that there is no basis for the Agency's assertion that Proposal 9 would directly interfere with management's right to discipline employees by preventing testing based on reasonable suspicion or accident/unsafe practice during the individual notice period. Nothing in the plain language of Proposal 9, or the Union's statement of intent regarding it, would affect drug testing based on reasonable suspicion or an accident/unsafe practice during that period or during the 60-day general notice period. We note, in this regard, that the individual notice encompassed by the FPM Letter relates only to random drug testing. Moreover, the Union's arguments relate only to random testing.

An agency's use of random testing as a part of its drug testing program constitutes an exercise of management's right to determine its internal security practices. Fort Leavenworth, 38 FLRA at 1203, 1207. Consistent with the interpretation of the proposal we previously adopted, Proposal 9 would require the Agency to provide employees with 30 days' specific notice of random testing. In practical effect, the proposal would preclude the Agency from implementing a random testing program for 30 days beyond that required by law and regulation. It is not clear, in this regard, that the proposal directly interferes with the Agency's right to determine its internal security practices. Compare American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 202-07 (1991) (provision requiring agency to provide employee with notice before effective date of adverse action held not to directly interfere with agency's rights to assign work or to direct, discipline, or remove employees) with National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1187 (1991) (proposal preventing the agency from implementing new qualification standards until specified date held to directly interfere with agency's rights to assign work and employees). However, in the circumstances of this case, and consistent with the Union's argument that the proposal constitutes an appropriate arrangement, we will assume such interference for the purposes of this decision.

In determining whether a proposal is an appropriate arrangement, we determine whether the proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. KANG, 21 FLRA 24, 31-33. It is clear that consistent with the Union's argument, Proposal 9 is intended as an arrangement for adversely affected employees.

Turning to the question of whether Proposal 9 excessively interferes with the Agency's right to determine its internal security practices, we find that the proposal would benefit employees by giving them additional time to locate and enter drug treatment programs. The Agency recognizes that providing employees with opportunities to enter such programs is beneficial by noting that the individual notices provide "employees . . . an additional incentive to quit and an opportunity to enter the 'safe harbor' program . . . before they became subject to random testing." Statement of Position at 23 (emphasis in original). This is a significant benefit to employees and one which is consistent with an overall goal of the drug testing program: "to offer drug users a helping hand and, at the same time, demonstrating . . . that drugs will not be tolerated in the Federal workplace." Executive Order 12564 (Preamble).

With respect to the negative effect on management's right to determine its internal security practices, the proposal would delay the implementation of random testing of unit employees for 30 days beyond that required by law and regulation. The Agency's rights to conduct other types of drug testing would not be affected by the proposal, however. In particular, the Agency would be free to investigate accidents or unsafe practices and, in addition, to act on reasonable suspicions that individual employees were using illegal drugs.

Balancing the benefit to employees against the burden imposed on the Agency by Proposal 9, we conclude that the proposal would not excessively interfere with the Agency's right to determine its internal security practices. Accordingly, we conclude that Proposal 9 constitutes an appropriate arrangement and is within the Agency's duty to bargain.

VII. Proposal 12

Any positions designated as testing designated positions ([T]DP) shall be only those positions which require that the duties of the incumbent have a top secret security clearance, and shall not include positions in which the incumbent has a top secret security clearance for duties that are not required for the position in question.

A. Positions of the Parties

l. The Agency

The Agency contends that Proposal 12 is nonnegotiable because it interferes with its authority under the Executive Order to determine which positions will be subject to random drug testing. The Agency asserts that the class of positions that could be designated as subject to drug testing under the proposal is narrower than that established by the Executive Order. The Agency also argues that the proposal is inconsistent with the Agency's drug testing plan for which, it contends, there is a compelling need.

Further, the Agency asserts that the proposal would result in disparate treatment of employees outside the bargaining unit, in conflict with Congressional intent in enacting the Supplemental Appropriations Act of 1987, Pub. L. 100-71, § 503(e), 101 Stat. 468, 471 (1987), codified at 5 U.S.C. § 7301 note (Supplemental Appropriations Act). The Agency argues that, under the Supplemental Appropriations Act, Congress intended "the appropriateness of the scope of each agency's drug testing plan--i.e., the particular positions to be tested--to finally be determined by [the Secretary of Health and Human Services] subject to Congressional oversight, not negotiated by the parties." Statement of Position at 35.

The Agency also asserts that Proposal 12 interferes with its right to determine its internal security practices by limiting its authority to determine which sensitive positions will be subject to random drug testing. Finally, the Agency characterizes the proposal as authorizing third parties to decide whether the work actually assigned to an employee requires possession of a top secret clearance. Extending such authority to third parties, the Agency contends, conflicts with various court decisions holding that the decision as to whether a clearance is required is within the exclusive discretion of management.

2. The Union

The Union argues that excluding employees who have top secret clearances, but who do not handle top secret information, from the testing pool poses no potential risk to the Agency. The Union contends that such exclusion "is consistent with the purposes and mandate of the Executive Order." Reply Brief at 10. The Union also contends that the proposal is an appropriate arrangement under section 7106(b)(3). The Union states that the invasion of privacy incident to drug testing adversely affects employees. The proposal, the Union asserts, is "an arrangement that prevents the Agency from including within its unconstitutional net of random drug testing employees who hold security clearances only as a result of administrative error, rather than as a result of any real need for the security clearance." Response to Agency's Supplementary Brief at 12-13.

B. Analysis and Conclusions

Proposal 12 provides that only those positions with duties requiring the incumbents to hold top secret security clearances may be designated for random drug testing. The proposal also specifically excludes from TDP designation positions held by employees with top secret clearances when the clearances are not required for the duties assigned to the positions.

The term "testing designated position," or "TDP" does not appear in Executive Order 12564. Rather, that term is used in section 3.a(2)ii of FPM Letter 792-19 to identify "which positions will actually be tested." Section 3.a(2)ii states that "an agency head may determine not to designate all sensitive positions as TDPs, but may limit testing to certain positions." Accordingly, to the extent that Proposal 12 would prevent the Agency from identifying certain positions as TDPs, it is not inconsistent with the FPM Letter. Instead, the FPM Letter allows agencies discretion in identifying positions as TDPs. Compare Department of Education, 38 FLRA at 1082 (part of proposal limiting agency's authority to designate sensitive positions held to be nonnegotiable under section 7117(a)(1) because of inconsistency with Executive Order).

Although Proposal 12 is not inconsistent with the FPM Letter, we conclude that the proposal is nevertheless nonnegotiable.

Proposals prescribing 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. See, for example, Bureau of Reclamation, 39 FLRA at 1526. Management's right under section 7106(a)(1) includes the right to conduct random drug tests. Id. at 1527. Proposal 12 would limit the Agency's right to designate TDPs to "only those positions which require that the duties of the incumbent have a top secret security clearance[.]" Contrary to the Union's explanation, the proposal does not address only those TDPs that have been designated because they require certain security clearances. Instead, the plain wording of the proposal restricts the identification of all TDPs. That is, instead of constituting a restriction on the Agency's right to designate one class of TDPs, the proposal addresses all such positions. As the Union's interpretation of the proposal is inconsistent with its plain wording, we base our analysis of the proposal on its plain wording. See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 1366, 1373 (1991).

Proposal 12 would limit the types of positions that the Agency could designate as TDPs and, thereby, subject the incumbents of those positions to random testing. The proposal constitutes a substantive restriction on the Agency's right to conduct random testing. Therefore, we conclude that Proposal 12 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

Having concluded that the proposal directly interferes with the Agency's right to determine its internal security practices, the proposal is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. We conclude that the Union has failed to establish that Proposal 12 constitutes a negotiable appropriate arrangement under the criteria stated in KANG.

The Union states that the proposal is an arrangement to prevent the random testing for drugs of employees who hold top secret security clearances but have no access to top secret information. The proposal would, thereby, benefit such employees by eliminating the adverse effects which may flow from being subject to the Agency's drug testing program. For example, the proposal would reduce the potential for an employee's privacy being invaded by a drug test. In addition it would reduce the possibility of false positive drug test results. Finally, the proposal would reduce the likelihood that employees would be disciplined as a result of confirmed positive drug tests. The proposal's broad scope severely restricts the Agency's discretion to determine what positions should be subject to random testing, however. By limiting TDP designation to positions involving access to top secret information, the proposal would prevent the Agency from subjecting any other positions to random testing. We find that such a broad restriction on the Agency's ability to designate TDPs and, thereby, to conduct random drug testing, excessively interferes with the Agency's right to determine its internal security practices. Therefore, we conclude that Proposal 12 is not an appropriate arrangement and is nonnegotiable.

VIII. Proposal 14

An employee may appeal the designation of his/her position as a T[esting] D[esignated] P[osition] at any time except at the time that he/she has been called for random testing.

A. Positions of the Parties

1. The Agency

The Agency argues that the creation of an internal mechanism to review decisions concerning security clearances, which are among the factors applied in identifying a position as a TDP, is an exclusive management right. According to the Agency, "it follows that if management chooses to create an internal review mechanism, it cannot be required to negotiate regarding when such reviews must be conducted." Statement of Position at 37 (emphasis in original). The Agency points out that its drug testing plan provides for administrative appeals of identifications of positions as TDPs within 15 days of notification to employees that their positions have been so identified. The Agency asserts that its drug testing plan constitutes the exercise of its right to determine its internal security practices. Therefore, in the Agency's view, Proposal 14, which conflicts with the plan, is not within its duty to bargain because it directly interferes with that right.

The Agency also asserts that there is a compelling need for the 15-day appeal period in its drug testing plan. Asserting that, consistent with the Supplemental Appropriations Act, similarly situated employees subject to drug testing must be treated in a similar manner, the Agency argues that Proposal 14 would result in disparate treatment of employees outside the bargaining unit.

The Agency notes the Union's argument that the proposal provides a means of deleting positions from those designated for testing when the duties have changed so that the positions no longer meet the Agency's TDP criteria. The Agency rejects that argument and asserts there are two flaws in the Union's argument:

First, the Union was advised at the table that the supervisory training for drug testing would contain a module advising supervisors of the responsibility to initiate requests to either add or delete positions when changed circumstances might warrant such an amendment to the list of TDPs. Second, while the Union stresses this point, the language of the proposal itself would not limit an employee's right to submit a written appeal only to those circumstances where a change in duties occurs more than 15 days after his or her receipt of notification.

Id. at 38-39 (emphasis in original).

The Agency also asserts that the proposal is inconsistent with efficient and effective Agency operations. By permitting an employee to delay raising a valid argument that his or her position does not meet TDP criteria until testing has been completed, the proposal would, according to the Agency, waste the time of contractors who collect and test specimens. Also, in the Agency's view, "permitting such delays will encourage those employees who may have good reason to be concerned regarding the outcome of such a test to initiate such appeals as an obstructive tactic." Id. at 39.

The Agency argues that the proposal is not an appropriate arrangement because it excessively interferes with management's right to determine its internal security practices. Additionally, in its supplementary brief, the Agency alleges that the Union has changed its position on the proposal so as to allow an arbitrator to review the appropriateness of designating a position for random drug testing. In light of what it asserts is the Union's changed position, the Agency argues that the designation of a position as requiring a security clearance and the resultant designation of the position as a TDP is not reviewable by third parties.

2. The Union

The Union contends that the proposal merely extends the time period in which an employee may appeal the designation of his or her position as a TDP under the Agency plan. The Union contends that the proposal "precludes an employee from obstructing the Agency's ability to call the employee for testing." Reply Brief at 11. The Union denies that there is a compelling need for the 15-day time limit in the Agency's plan, asserting that "[m]ere convenience of the [A]gency does not meet the standard." Id. The Union characterizes the proposal as "procedural in nature" and also as "an appropriate arrangement for employees adversely affected by the exercise of management's rights." Id. at 11-12.

B. Analysis and Conclusions

Under Proposal 14, a unit employee could seek Agency review of the designation of his/her position as a TDP through the procedures established by the Agency. See Response to Agency's Supplementary Brief at 12-13. The proposal allows unit employees to request Agency review at any time, except when the employee is ordered to undergo testing, rather than within the 15-day period provided in the Agency's drug testing plan.

Under the proposal, as under the plan, the Agency would make the final decision concerning whether a position is properly identified as a TDP. The proposal is silent with respect to the appeal process by which employees would challenge the designation of their positions as TDPs. The Union asserts, however, that the proposal is intended to affect only the time period applicable to the Agency's existing appeal process. Moreover, the Union asserts that the proposal would not enable employees to challenge, through negotiated grievance and arbitration procedures, either the designation of their positions as TDPs or decisions regarding security clearances which may be involved in such designations. See Response to Agency's Supplementary Brief at 13-14.

Consistent with the Union's statements of intent, the proposal would not affect the Agency's right, under its existing plan, to make final decisions regarding the designation of positions as TDPs. Accordingly, the Agency's arguments regarding the reviewability of security clearance matters, as well as its assertions regarding its right to determine its internal security practices, are misplaced. As such, the negotiability of Proposal 14 turns on whether the proposal is, as asserted by the Agency, inconsistent with an Agency regulation for which a compelling need exists.

The Agency argues that there is a compelling need for its regulatory 15-day time limit on requests for administrative review of TDPs under section 2424.11(c) of the Authority's Rules and Regulations. Under that section, a compelling need exists if "[t]he rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature." The Agency asserts that removal of the 15-day time limit for unit employees would result in disparate treatment of employees outside the unit who would remain subject to that time limit. The Agency's position is based on the following excerpt from the legislative history of the Supplemental Appropriations Act, which states that agency drug testing plans must:

assure that Federal workers employed by different agencies who are similarly situated receive similar treatment, and that random testing of Federal employees is not implemented on an ad hoc basis.

133 Cong. Rec. H. 5680 (daily ed. June 27, 1987).

We are not persuaded that this portion of the legislative history supports a compelling need for the Agency's 15-day time limit. The Agency has not explained how the cited part of the legislative history mandates a 15-day time limit, or any other time limit on requests for review of TDP determinations. Rather, the excerpt indicates that only that Congress disapproves of ad hoc implementation of drug testing programs. In our view, the statement does not support the Agency's reasoning that its 15-day time limit on appeals is Congressionally mandated. The Agency has not identified any other statutory or regulatory requirement to support its position. Moreover, even if the Supplemental Appropriations Act required the consistent treatment claimed by the Agency, the Agency would be free, under the proposal, to achieve that consistency by amending its regulation with respect to all employees. See National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, 41 FLRA 1158, 1179 (1991) (National Park Service) (Authority held that even assuming that agency was required to apply its drug testing plan uniformly to unit and nonunit employees, nothing in the disputed proposal prevented the agency from applying it to all employees). Consequently, in our view, the Agency has not demonstrated that there is a compelling need for its existing 15-day time limit under section 2424.11(c) of the Authority's Regulations.

The Agency also argues that there is a compelling need for its 15-day time limit under section 2424.11(a) of our Regulations. Under that section, a compelling need exists if a rule or regulation "is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency or primary national subdivision in a manner which is consistent with the requirements of an effective and efficient government." The Agency asserts, in this regard, that permitting employees to appeal the designations of their positions as TDPs under the proposal "will inevitably lead to executing the functions of the [A]gency in an inefficient and ineffective manner . . . ." Statement of Position at 39.

Initially, we note that the Agency does not assert that the 15-day time limit is "essential" to the accomplishment of its mission in an effective and efficient manner. Section 2424.11(a) of the Authority's Rules and Regulations requires the demonstration of such essentiality to support a compelling need. Moreover, the Agency's contention that the proposal would inevitably lead to ineffective and inefficient operations is speculative. We note, in this regard, that the proposal expressly would preclude an employee from appealing the designation of his/her position as a TDP after the employee had been directed to submit to a random drug test. Finally, although the Agency argues that the existing 15-day time limit promotes efficiency and effectiveness of its operations by preventing employees from requesting review as an obstructive tactic, the Agency has not explained, and it is not otherwise apparent, how the absence of the 15-day time limit would promote groundless requests for review, while the 15-day limit would prevent them. Accordingly, we find that the Agency has not demonstrated that there is a compelling need for its 15-day time limit under section 2424.11(a) of the Authority's regulations.

As the Agency has not demonstrated that Proposal 14 conflicts with an Agency regulation for which a compelling need exists, under section 2424.11 of our Regulations, and as the proposal is not otherwise inconsistent with law or regulation, we conclude that the proposal is negotiable.

IX. Proposal 19

Whenever an employee is to be tested for the possible use of illegal drugs based upon a reasonable suspicion, i.e., specific objective reason to believe that an employee is using illegal drugs, that employee will be advised of his/her right to be provided with the names and telephone numbers of the President and Vice President of the [U]nion.

A. Positions of the Parties

1. The Agency

The Agency asserts that Proposal 19, as contained in the Union's petition for review, is not the same as the proposal submitted to management. Specifically, according to the Agency, the proposal it reviewed provided, in addition to the wording submitted to us, "'that [the] employee will be advised of his/her right to Union representation regarding the drug test.'" Statement of Position at 41 (emphasis added by the Agency). The Agency states that it objected only to wording not included in the proposal the Union submitted to the Authority. Therefore, the Agency contends that we "should decline to entertain the proposal." Id.

As to the substance of the proposal which it reviewed, the Agency asserts that employees have no statutory right to Union representation regarding drug testing and that the Agency is not obligated to inform employees of a nonexistent right. Additionally, the Agency asserts that locating a Union representative and allowing the representative to carry out his or her functions "will often create a delay sufficient to affect the outcome of the test of that specimen, particularly in the case of cocaine and amphetamine use." Id. at 42. Finally, the Agency contends that it is "unlikely that the proposal concerns a condition of employment at all in that it does not address a matter which is within management's control." Supplemental Brief in Support of Statement of Position at 37.

2. The Union

The Union contends that Proposal 19, as presented to management, is identical to the proposal submitted to the Authority. The Union states that "[i]f the Agency objected only to the underlined portion of what it believes to be the proposal, then the parties should return to the table to see if agreement can be reached on the section to which no objection to negotiability is made." Reply Brief at 12. The Union also argues that Proposal 19 is consistent with section 7114(a)(2) of the Statute and would "not delay the drug testing beyond the 30 seconds that it takes to state that information nor does it interfere with the internal security practices and the right to discipline that the Agency has." Id. at 12-13. The Union notes that the proposal does not require that a Union representative be present during the drug test.

Finally, the Union contends that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union states that "[t]he right to be provided with the names and telephone numbers of the Union officials, lets the employee know that he/she is not alone in facing [the drug testing] situation, and it does not have an adverse impact on management's ability to conduct the test." Response to Agency's Supplementary Brief at 15.

B. Analysis and Conclusions

Under section 2424.1 of the Authority's Rules and Regulations, we will consider a petition for review of a negotiability issue only where the parties are in dispute as to whether a proposal is inconsistent with law, rule, or regulation. In referring to Proposal 19, as set out in the petition for review, the Agency stated that "management would not have asserted that the language above was nonnegotiable if that had, in fact, been the final proposal actually submitted to [the Agency] by the Union because the delay involved is negligible." Supplemental Brief in Support of Statement of Position at 36-37.

Because the Agency does not assert that the proposal before us is nonnegotiable, the conditions governing review of negotiability issues have not been met. Consequently, we will dismiss the Union's petition for review of Proposal 19 without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are satisfied and the Union elects to file such an appeal. See, for example, American Federation of Government Employees, AFL-CIO, Local 3369 and Social Security Administration, Midtown District Office, 31 FLRA 1114, 1115-16 (1988).

X. Proposals 21-25 ⁽¹⁾

Proposal 21. Accident or unsafe practice testing will normally occur only when there is evidence of an unsafe practice that reasonably appears to be the result of illegal drug use.

Proposal 22. Accident or unsafe practice testing will normally be done only when significant damage to property occurs and that damage reasonably appears to be related to illegal drug use.

Proposal 23. Accident or unsafe practice testing for the careless operation of a vehicle will normally occur only when the careless operation reasonably appears to be related to illegal drug use.

Proposal 24. Accident or unsafe practice testing for significant injury to persons will normally be done only when such injury reasonably appears to be done as a result of illegal drug use.

Proposal 25. Accident or unsafe practice testing for pattern of erratic incidents will normally be done only when such pattern reasonably appears to be related to the use of illegal drugs.

A. Positions of the Parties

1. The Agency

The Agency claims that Proposals 21 through 25 are inconsistent with Executive Order 12564. According to the Agency, section 3(c)(2) of the Executive Order "does not limit agency heads to initiating tests only when they have some reason, other than the occurrence of unsafe practice or an accident itself, to believe that the practice or accident resulted from the use of illegal drugs." Statement of Position at 43 (emphasis in original). The Agency claims that the accident or unsafe practice testing permitted under section 3(c)(2) of the Executive Order must be read to apply in circumstances other than those which may give rise to the reasonable suspicion testing specified in section 3(c)(1) of the Executive Order.

The Agency also argues that the proposals interfere with management's right to determine internal security practices under section 7106(a)(1) of the Statute by "establish[ing] criteria which are more restrictive than those which management has chosen to apply." Statement of Position at 46. The Agency argues that use of the term "normally" does not reserve to management sufficient discretion in the exercise of its right.

Finally, the Agency claims that the proposals are inconsistent with the Agency's drug testing plans. The Agency notes that its plans, for which it asserts compelling need, authorize drug testing based solely on the occurrence of an unsafe practice or accident.

2. The Union

The Union argues that Proposals 21-25 do not violate the Agency's right to determine its internal security practices. The Union also claims that the proposals merely repeat the standards for accident or unsafe practice testing that are contained in the Agency's plan, adding that "[t]he proposals make explicit what the relationship between testing and the Agency goals should be, i.e., that testing is related to possible illegal drug use." Petition for Review at 7. In the alternative, the Union asserts that the proposals constitute negotiable appropriate arrangements.

The Union also argues that the proposals are designed to link drug testing to possible illegal drug use. However, the Union states that inclusion of the word "normally" in the proposals allows management to test even when there is no obvious relation to drug use.

B. Analysis and Conclusions

Proposals 21 through 25 list five circumstances in which testing for accident or unsafe practice is authorized. The proposals state that testing will "normally" occur only when the accident or unsafe practice "reasonably appears" to be related to, or the result of, illegal drug use. Therefore, the proposals require that drug testing in accident and unsafe practice situations be based, in most cases, on a reasonably apparent relationship between the accident or unsafe practice and illegal drug use.

The decision to require employees to undergo random testing for use of illegal drugs constitutes an exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute. For example, Bureau of Reclamation, 39 FLRA at 1526-27. Proposals which limit management's discretion to require that an employee be tested for illegal drugs directly interfere with the exercise of that right. For example, a proposal limiting management to drug testing on the basis of probable cause, thereby precluding random drug testing, directly interferes with the agency's right to determine its internal security practices. See American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45, 48-49 (1988) (Tooele Army Depot).

Proposals 21 through 25 permit drug testing only when there is a reasonably apparent relationship between an accident or unsafe practice and illegal drug usage. We conclude that post-accident or unsafe practice testing, like random testing, affords protection to Agency property and operations. Accordingly, we find that the right to conduct such testing constitutes the exercise of the Agency's right to determine its internal security practices. Therefore, like the probable cause standard in Tooele Army Depot, the proposals' limitations on the grounds for such testing directly interfere with the Agency's right to determine its internal security practices. Including in each proposal the qualification that such tests "will normally be done" (Proposals 22, 24, and 25), or that they will "normally occur" (Proposals 21 and 23), when there is such reasonably apparent relationship does not eliminate the direct interference with management's right. Under the proposals, the Agency's right to test for drugs would be conditioned on either: (a) a relationship between the accident or unsafe practice and drug use, or (b) abnormal circumstances warranting testing of the employee involved. In either case, the proposals, by restricting the grounds for administering drug tests based upon a reasonable suspicion, an accident or an unsafe practice directly interfere with the right to determine internal security practices. See Fort Leavenworth, 38 FLRA at 1207.

We also find that Proposals 21 through 25 are not appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. As noted previously, in order to determine whether a proposal excessively interferes with management's rights so as not to constitute an appropriate arrangement, the Authority balances the competing practical needs of employees and managers as they are affected by the proposal. KANG, 21 FLRA at 31-32.

The Union asserts that the proposals are intended to mitigate the adverse effect on employees of being ordered to undergo urinalysis. The Union also contends that the proposals would encourage employees to file compensation claims. The Union contends that, when post-accident testing is unlimited, "employees who would not want to face the embarrassing experience of being ordered to urinate in a bottle, possibly under direct observation, would hesitate to report accidents or injuries at work." Response to Agency's Supplementary Brief at 16. Based on the Union's explanation, we find that the proposals are intended as arrangements to minimize the adverse effects of management's imposition of a program to test for drugs following accidents or unsafe practices.

Although the proposals are arrangements for adversely affected employees, we conclude that they are not appropriate arrangements. The proposals preclude accident and unsafe practice drug testing unless there is a reasonably apparent relationship between the incident and illegal drug usage. Accordingly, the proposals would prevent accident and unsafe practice drug testing unless there was a reasonable suspicion that the employee involved is an illegal drug user. Consequently, the proposals would prevent the Agency from ascertaining whether some incidents are drug-related and, in addition, would prevent the Agency from conducting full investigations into accidents and unsafe practices and from taking whatever actions are necessary to prevent future occurrences. In this respect, the proposals would benefit employees by limiting the number of drug tests to which an employee would be required to submit and, thereby, reduce: (1) the invasion of an employee's privacy by a drug test, (2) the possibility of false positive drug test results, and (3) the likelihood that employees would be disciplined as a result of confirmed positive drug tests. Nevertheless, although the proposals benefit employees, they do so at the cost of limiting the Agency's ability to investigate fully accidents and unsafe practices.

On balance, we find that the protection afforded to employees by the proposals is outweighed by the limitations on the Agency's ability to eliminate unsafe conditions in the workplace caused by illegal drug usage. Accordingly, the proposals excessively interfere with the Agency's right to determine its internal security practices and are not negotiable appropriate arrangements under section 7106(b)(3) of the Statute. In view of this determination, we do not address the Agency's other arguments concerning the proposals.

XI. Proposal 27

Employees who are placed in the follow-up testing pool who are subject to regular unannounced testing as well as testing imposed by [sic] Employee Assistance Program will not be tested more than 12 times per year under both plans combined.

A. Positions of the Parties

1. The Agency

The Agency asserts that Proposal 27 is inconsistent with Executive Order 12564, the Agency's drug testing program, for which it alleges that a compelling need exists, and the Medical Review Officer (MRO) Manual, which the Agency claims constitutes a Government-wide regulation.

The Agency states that the Executive Order authorizes agencies to test for illegal drug use as part of counselling or rehabilitation through an Employee Assistance Program (EAP). The Agency argues that the objective of such testing is to "detect those employees who return to drug use after completing such programs." Statement of Position at 48.

The Agency also states that its drug testing plan requires a recovering drug user to undergo 10 tests during the 1-year follow-up period, "or as provided in an abeyance contract." Id.. These 10 tests, the Agency notes, are separate from any tests administered by a rehabilitation or treatment program. In this regard, the Agency states that the treatment programs to which employees are referred "do not work under contract for the [A]gency. Rather, treatment is provided to drug abusers by existing private organizations . . . ." Id. at 49 (emphasis in original). The Agency claims that "it would not be uncommon for a treatment program to test an enrolled employee more than 12 times before he or she leaves the program." Id. (emphasis in the original).

In the Agency's view, as the purpose of referral to drug rehabilitation programs is to stop illegal drug use, the effectiveness of such programs is dependent, "in substantial part," on frequent testing. Id. at 50. Therefore, the Agency asserts, "it follows that any arbitrary limit on frequency is not consistent with accomplishing this purpose." Id. The Agency contends that, even if Proposal 27 were not inconsistent with provisions of the Executive Order, it conflicts with the Agency plan for which, according to the Agency, there is a compelling need because "it is 'essential,' rather than merely 'desirable,' that testing be conducted at whatever frequency will maximize the likelihood that the employee will remain drug free during and after treatment." Id.

In addition, the Agency asserts that the proposed limitation on testing conflicts with a provision of the MRO Manual, which the Agency claims is a Government-wide regulation. The Agency notes that the MRO Manual requires:

. . . a system permitting no 'safe periods' for any employee. Each workday should present each employee with a new opportunity of having to produce a sample, with the odds equal for all employees on each new day, regardless of the samples previously produced by any of them.

Supplemental Brief in Support of Statement of Position at 43.

The Agency also claims that Proposal 27 interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency asserts that the right to determine internal security practices includes the right to administer drug tests with sufficient frequency both to deter and to detect illegal drug usage. In the Agency's view, the proposed ceiling on the number of tests reduces the effectiveness of rehabilitation and adversely affects the Agency's ability to detect resumption of drug abuse.

The Agency contends that the proposal also interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency claims that "[i]t is self evident that limiting the number of times agency management can test an employee in a 'follow-up' category serves to decrease the likelihood that a resumption of illegal drug use by the employee--not an infrequent occurrence--will be detected as soon as possible." Statement of Position at 51.

The Agency contends that the Union makes no specific assertion that the proposal constitutes an appropriate arrangement. The Agency argues that, in the event the proposal is so construed, it is implausible to contend that "the administrators of the private sector drug counselling programs to which users are referred by the EAP Director will be inclined to administer drug tests more frequently to 'harass' enrollees[.]" Id. at 52. In addition, the Agency contends that the number of Agency-administered tests is fixed at 10 by the Agency plan, leaving responsible officials with no discretion which would allow harassment of employees.

The Agency further asserts that the Agency's follow-up testing benefits employees instead of adversely affecting them. According to the Agency, such testing "constitutes a necessary inducement--in essence an extension of the rehabilitation effort--to identified drug users to continue to refrain from relapsing into the use of illegal drugs." Supplementary Brief at 28-29. Moreover, the Agency contends that any adverse impact would result from an employee's illegal drug use and that such an effect would not outweigh the Agency's interest in identifying and removing illegal drug users.

2. The Union

The Union asserts that Proposal 27:

is designed to limit the number of times an employee can be sent for drug testing. It allows the Agency to conduct the follow-up testing in accordance with Chapter 12, Section C of the OBD Plan, but presents a limitation on the number of times that testing can occur. This limitation is designed to prevent harassment of employees who have been found to use illegal drugs, while protecting management's right to engage in the follow-up testing.

Petition for Review at 8. The Union claims that Proposal 27, therefore, "cannot be deemed to violate management's internal security practices, because it does not contradict the practices that they have embodied in their plan . . . ." Reply Brief at 15. The Union also contends that the proposal is an appropriate arrangement under section 7106(b)(3). The Union states that the adverse effect addressed by the proposal is "the inherent negative impact on employee dignity that is imposed by enforced urinalysis." Response to Agency's Supplementary Brief at 17. Additionally, in the Union's view, "going to the collection site, whether it be at the Agency or through the Employee Assistance Program, takes time out of an employee's day, and creates additional stress that is undesirable." Id. The Union contends that, under the proposal, the Agency's "ability to determine its [internal] security practices is not interfered with to an excessive degree." Id.

B. Analysis and Conclusions

Under Proposal 27, employees who participate in drug rehabilitation programs would not be required to submit to a total of more than 12 drug tests during a 1-year period. Based on the wording of the proposal and the record in this case, we find that the limit of 12 drug tests annually includes tests required by a rehabilitation program or facility and Agency-administered drug tests. In making this finding, we note particularly the Union's statement that "going to the collection site, whether it be at the Agency or through the Employee Assistance Program, takes time out of an employee's day, and creates additional stress that is undesirable." Response to Agency's Supplementary Brief at 17. In addition, the Union does not challenge the Agency's assertion that the 12-test limit imposed by the proposal includes tests conducted by the rehabilitation service and tests administered by the Agency directly.

It also is undisputed by the Union that the Agency exercises no control over the rehabilitation facilities to which employees are referred by the EAP. As the Agency exerts no control over the rehabilitation facility's procedures, it cannot limit the number of drug tests the facility administers in the course of the rehabilitation process. The Agency points out that "it would not be uncommon for a treatment program to test an enrolled employee more than 12 times before he or she leaves the program." Statement of Position at 49 (emphasis in original).

To the extent that Proposal 27 would limit the Agency's ability to test an employee undergoing rehabilitation, or a rehabilitated employee, for illegal drug use, the proposal is not inconsistent with law or Government-wide regulation. The Executive Order, in section 3(c)(3), provides that agency heads are "authorized" to conduct drug testing "[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 similarly provides that agency heads "may also require agency-administered follow-up drug testing during or after counseling rehabilitation for illegal drug use . . . ." As the Executive Order and the FPM Letter authorize, but do not require, an agency to test for drugs as part of, or as a follow-up to, rehabilitation, the proposal does not conflict with those issuances. See Bureau of Reclamation, 39 FLRA at 1526.

However, proposals which constitute substantive restrictions on management's exercise of its right to determine its internal security practices under section 7106(a)(1) of the Statute directly interfere with that right. Id. In this regard, we have held that random drug testing constitutes an exercise of an agency's right under section 7106(a)(1). Such testing, we found, safeguards agency physical property against internal and external risks, forestalls improper or unauthorized disclosure of information, and prevents disruption of activities by deterring and detecting illegal drug usage. Rock Island I, 30 FLRA at 1055-57.

Similarly, it is reasonable to conclude that follow-up testing of employees with histories of drug abuse affords protection to agency property and operations. Accordingly, we conclude that management's right to determine its internal security practices includes the right to conduct drug tests of employees, identified as drug users, during and after participation in rehabilitation programs. Consistent with our decisions concerning proposals limiting an agency's ability to administer random drug tests, we conclude also that Proposal 27's limitation on the Agency's ability to require follow-up tests for rehabilitated drug users directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See, for example, Fort Leavenworth, 38 FLRA at 1207-08.

The Union has failed to demonstrate that Proposal 27 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Applying the principles, set forth in KANG, we find that Proposal 27, in limiting the number of tests employees must undergo, constitutes an arrangement for employees adversely affected by the exercise of management's right to administer follow-up drug tests under section 7106(a)(1) of the Statute. The proposal would, in this regard, limit the number of drug tests to which an employee would be required to submit and, thereby, reduce: (1) the invasion of an employee's privacy by a drug test, (2) the possibility of false positive drug test results, and (3) the likelihood that employees would be disciplined as a result of confirmed positive drug tests.

However, the proposal does not constitute an appropriate arrangement. By limiting the Agency's right to require urinalysis tests to assure that former drug users remain drug free, Proposal 27 would restrict the Agency's discretion to determine whether any, or what amount of, follow-up testing is warranted to secure and safeguard the Agency's property and employees. It is undisputed that "it would not be uncommon" for private treatment programs to administer more than 12 drug tests to an affected employee before the employee leaves the programs. Statement of Position at 49. In such situations, the proposal would, in effect, preclude any follow-up testing by the Agency itself. We find that, on balance, the negative impact on management's right outweighs the benefit to employees and, as such, this limitation excessively interferes with the Agency's right to determine its internal security practices. Therefore, we conclude that Proposal 27 is not an appropriate arrangement and is nonnegotiable. In view of this determination, we do not address the Agency's other arguments concerning the proposal.

XII. Proposal 28

Employees who are required to submit to drug testing should be tested only during their regular working hours, and will not be required to report to or remain at the collection site during off duty hours.

A. Positions of the Parties

1. The Agency

The Agency argues that Proposal 28 is nonnegotiable because it: (1) is inconsistent with the HHS Guidelines; (2) interferes with management's right to determine its internal security practices under section 7106(a)(1); and (3) interferes with management's right to direct and discipline employees under section 7106(a)(2)(A).

The Agency argues that Proposal 28 conflicts with section 2.2(f)(10) of the HHS Guidelines. The Agency asserts that the Guidelines "do not authorize employees to leave the collection site at the end of the regular work day and return the next day when they cannot produce a 60 milliliter specimen . . . ." Statement of Position at 55. The Guidelines require, according to the Agency, that the collection site operator contact the appropriate authority for guidance when employees cannot produce sufficient samples. The Agency also contends that its argument is supported by the MRO Manual, which requires that employees who cannot produce 60 milliliters be provided with 8 ounces of fluid every 30 minutes until they are able to do so.

The Agency also argues that Proposal 28 interferes with its right to determine its internal security practices because that right "encompasses the right to direct employees to remain at a collection site in a duty status (i.e. on overtime) after normal working hours . . . ." Id. at 59. According to the Agency, the proposal "would absolutely preclude responsible management officials from directing the employee to remain at the facility on an overtime basis until provision of a specimen is accomplished." Id. at 58. Consequently, the Agency asserts that Proposal 28 would make it possible for employees to withhold specimens and make "the planning necessary for tampering or substitution easier." Id. Citing Skinner v. Railway Executives' Association, 109 S. Ct. 1402 (1989) (Skinner), the Agency also asserts that "any proposal which would serve to delay the provision of a specimen operates to reduce the likelihood that the subsequent test will be able to detect drug residues or drug metabolites which would have been present at detectable levels." Supplemental Brief in Support of Statement of Position at 44.

In addition, the Agency asserts that because Proposal 28 reduces management's ability "to detect offenses," it also necessarily interferes with management's right to discipline employees for the offense that might otherwise have been detected. Statement of Position at 60. The Agency also asserts that Proposal 28 interferes with management's right to direct employees under section 7106(a)(2)(A) of the Statute. According to the Agency, this right includes the right to instruct employees to do whatever is necessary, including remaining or returning to duty on an overtime basis, "to eliminate avoidable risks that illegal conduct will not be detected as soon as possible." Id.

Finally, the Agency argues that Proposal 28 "provides absolutely no basis for applying the 'excessive interference' test . . . ." Supplementary Brief at 30. According to the Agency, the effect that concerns the Union, namely the possibility that employees could not be paid overtime to complete drug testing, is "an effect which will not occur." Id. Additionally, the Agency argues that Proposal 28 would "totally" preclude management from "exercising the reserved right to 'direct' [employees]" . . . . Id.

2. The Union

The Union agrees that the Agency has the right to direct an employee to provide a urine sample, but argues that collection should be done on work time. The Union also asserts that Proposal 28 "merely sets forth procedural parameters for the conduct of the test." Petition for Review at 9.

The Union also contends that Proposal 28 is an appropriate arrangement because it "protects employees' financial interests, as well as their interests in having a pre-determined schedule by which they can plan their lives." Reply Brief at 15-16. The Union contends that the proposal prevents employees from "having to change what may be very inflexible travel or child care plans." Response to Agency's Supplementary Brief at 17. According to the Union, "the right to assign work is only minimally affected, because the employee will submit to a urine test." Id. at 18.

B. Analysis and Conclusions

Section 2.2(f)(10) of the HHS Guidelines provides that in the event an employee who is being tested for drugs cannot provide a 60 milliliter sample, "the individual may be given a reasonable amount of liquid to drink . . . . If the individual fails for any reason to provide 60 milliliters of urine, the collection site person shall contact the appropriate authority to obtain guidance on the action to be taken."

In National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 38 FLRA 79, 86 (1990) (Department of Energy), we found that a proposal which did not permit collection site personnel to detain an employee who was unable to provide a sufficient urine sample was inconsistent with section 2.2(f)(10) of the HHS Guidelines. We concluded that by removing the option for testing site personnel to give the employee being tested additional liquid so as to obtain a sufficient sample or the option to detain an employee who has failed to provide a sufficient sample until guidance was received from an appropriate authority, the proposal was inconsistent with the Guidelines.

Under Proposal 28, employees could not be detained at the collection site after the end of their duty hours for any reason. As such, Proposal 28 would prevent collection site personnel from following the procedures in section 2.2(f)(10) of the Guidelines in the event that an employee was unable to provide a sufficient sample before his or her normal workday ended. That is, under Proposal 28 such employee could not be detained at the collection site after his or her regular duty hours ended. Accordingly, as Proposal 28 is, in certain situations, inconsistent with section 2.2(f)(10) of the Guidelines, it is nonnegotiable under section 7117(a)(1) of the Statute. See also National Park Service, 41 FLRA 1158 at 1183; American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439, 1445-47 (1990) (Member Talkin dissenting as to other matters) (Sierra Army Depot). In view of our conclusion, we do not reach the Agency's other arguments.

XIII. Proposal 29

Employees who are scheduled for leave or travel during their normal duty hours will not be required to cancel that leave or travel to take the drug test. They will be allowed to provide a urine sample on a day in which they are scheduled to be at the worksite.⁽²⁾

A. Positions of the Parties

1. The Agency

The Agency argues that Proposal 29 is no