42:0412(33)NG - - AFSCME Local 3097 and Justice, Justice Management Division - - 1991 FLRAdec NG - - v42 p412
[ v42 p412 ]
42:0412(33)NG
The decision of the Authority follows:
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 m