42:0599(39)NG - - AFGE, National Border Patrol Council and National INS Council and Justice, INS - - 1991 FLRAdec NG - - v42 p599



[ v42 p599 ]
42:0599(39)NG
The decision of the Authority follows:


42 FLRA No. 39

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

NATIONAL BORDER PATROL COUNCIL AND NATIONAL

IMMIGRATION AND NATURALIZATION SERVICE COUNCIL

(Union)

and

U.S. DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

(Agency)

0-NG-1726

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 30, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority based on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of four proposals regarding the implementation of the Agency's drug testing program.(1)

Proposals 1 and 6 require the Agency to provide employees who are required to undergo a "reasonable suspicion" drug test with various forms of written justification for that test within 24 and 48 hours, respectively, after testing. We find that Proposals 1 and 6 constitute negotiable procedures under section 7106(b)(2) of the Statute.

Section C of Proposal 3 provides that employees who are Union representatives will not be improperly denied official time to represent employees concerning matters involving the Agency's drug testing plan. We find that section C of Proposal 3 is negotiable.

Proposal 4 provides for the presence of Union representatives when the Agency identifies which employees will be randomly drug tested. We find that that aspect of Proposal 4 is negotiable. Proposal 4 also establishes procedures by which the Union will verify the computerized process used by the Agency to randomly select employees for drug testing. The record is not sufficient for the Authority to make a negotiability determination concerning the verification procedures described in Proposal 4. Therefore, the petition for review as to section A and section C, subsections 1-3, of Proposal 4 is dismissed.

II. Procedural Issue

The Agency contends that the Union's petition for review is untimely. We find that the Union's petition for review is timely filed.

As a result of negotiations concerning the Agency's implementation of Executive Order No. 12564, the parties reached "a partial agreement." Agency's Statement of Position (Agency's Statement) at 2. However, the Agency rejected several of the Union's proposals on the basis that the proposals either were nonnegotiable or reopened matters already agreed to in the parties' Master Agreement. The Union sought assistance from the Federal Service Impasses Panel (the Panel). However, after being advised by the Agency of the negotiability dispute between the parties, the Panel declined to assert jurisdiction. See Exhibit B to Agency Statement (Panel's response dated October 3, 1988).

By letter dated June 19, 1989, the Union "request[ed] the Agency's allegation that the obligation to bargain does not extend to certain language proposed to be bargained." Attachment to Petition for Review at 1. The Agency received the Union's request for an allegation of nonnegotiability on June 27, 1989. As of July 20, 1989, the Union had not "received the requested allegations" of nonnegotiability. Petition for Review at 1. On July 20, 1989, pursuant to section 2424.3 of the Authority's Rules and Regulations, the Union filed a petition for review with the Authority concerning the proposals at issue in this case. The Union received the Agency's allegation of nonnegotiability on July 21, 1989, after the Union filed its petition for review.

The Agency states that the Authority determined in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Commander, Carswell AFB) that the Panel may resolve some duty to bargain issues in an impasse resolution proceeding. The Agency contends that:

[G]iven the need for an agency to timely assert in its response to a union request to the Panel that the Panel does not have jurisdiction to consider the union's proposals because they raise unresolved negotiability issues, and the Panel's concomitant obligation to render a decision in the face of such an assertion regarding its jurisdiction, there is simply no longer any valid reason to characterize the agency's assertions in this instance as [an] 'unsolicited'" allegation of nonnegotiability.

Agency's Statement at 8. The Agency asserts that "a subsequent Panel decision . . . to reject one or more proposals submitted by the union on the grounds they raise unresolved negotiability questions should be held to trigger the union's obligation to file under section 7117(c)(2) of the Statute within 15 days." Id.

The Agency argues that it had no obligation to respond to the Union's request for an allegation of nonnegotiability in this case because the Agency's "written statement of management's position before the Panel regarding the fact that the proposals at issue here raised unresolved negotiability issues[,] taken [together with] the Panel's subsequent rejection of the Union's request . . . on jurisdictional grounds, constituted an agency 'allegation' of nonnegotiability within the meaning of [section 7117(c)(2)]." Id. at 11. Because the Union did not file its petition for review within 15 days of the Panel's October 3, 1988 denial of the Union's request for assistance, the Agency contends that the petition for review is untimely.

A petition for review must be filed within 15 days of the date of service of an agency's written allegation of nonnegotiability. 5 C.F.R. § 2424.3. A union "shall request such allegation in writing[.]" Id. However, a union is not required to file a petition for review of an unrequested allegation of nonnegotiability. Rather, "the union may ignore such unsolicited allegation and instead elect to request in writing a written allegation of nonnegotiability from the [a]gency" at a later time. National Federation of Federal Employees, Local 422 and U.S. Department of the Interior, Bureau of Indian Affairs, Colorado River Agency, 34 FLRA 721, 723 (1990) (quoting American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 24 FLRA 512, 513 (1986) (Naval Weapons Station) (where the agency's unsolicited allegation of nonnegotiability was made in the context of a Panel proceeding). Therefore, the Union in this case could ignore the Agency's unsolicited allegation of nonnegotiability made in the proceedings before the Panel and elect to request an allegation at a later time.

We disagree with the Agency's position that Commander, Carswell AFB compels the conclusion that an allegation of nonnegotiability provided by an agency in an impasse proceeding at the Panel's request triggers a union's obligation to file an appeal before the Authority concerning negotiability issues not resolved by the Panel. In Commander, Carswell AFB, the Authority held that if the Panel and interest arbitrators can resolve a duty to bargain issue which arises in a negotiation impasse by applying existing Authority case law, they have authority under the Statute to do so. That decision did not suggest that an allegation of nonnegotiability made by an agency in a Panel proceeding constitutes a written allegation of nonnegotiability which triggers a union's obligation to file a negotiability appeal under section 7117(c)(2) of the Statute. See Naval Weapons Station, 24 FLRA at 513. Therefore, we reject the Agency's argument, based on Commander, Carswell AFB, that it had no obligation to respond to the Union's request for an allegation of nonnegotiability because its statement of position before the Panel was a written allegation of nonnegotiability, within the meaning of section 7117(c)(2), which triggered the Union's obligation to file a negotiability appeal under section 7117(c)(2) of the Statute. See American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 523-25 (1991), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 91-4525 (5th Cir. June 25, 1991).

The Union requested an allegation of nonnegotiability on June 19, 1989. When the Agency failed to respond to the Union's request for an allegation concerning the nonnegotiability of the proposals as of July 20, 1989, the Union filed a petition for review with the Authority. Because the Agency failed to respond to the Union's request for an allegation of nonnegotiability, the time limit in section 7117(c)(2) of the Statute for filing a negotiability appeal does not apply. Naval Weapons Station, 24 FLRA at 514. Therefore, the Union's petition for review is timely filed.

The Agency filed a Statement of Position setting forth the reasons supporting management's assertion that the proposals at issue are nonnegotiable or not properly before the Authority. The Union filed a response to the Agency's statement of position. The Agency also filed a supplemental brief responding to the Union's assertions that the proposals are negotiable under section 7106(b)(3) of the Statute as appropriate arrangements. The Agency maintains that the supplemental brief is necessary because "the Union had made a blanket alternative argument that all of its proposals constituted 'appropriate arrangements' within the meaning of section 7106(b)(3) of the Statute without identifying any of the adverse effects of the exercise of reserved rights which they intended to ameliorate." Agency's Supplemental Brief at 1. The Union objects to the Agency's supplemental brief. Because the Union asserted in its petition for review that the proposals constitute appropriate arrangements and because the Agency had an opportunity to respond to those claims in its statement of position, we have not considered the Agency's unsolicited supplemental brief. See 5 C.F.R. § 2424.8 (the Authority will not consider unauthorized supplemental submissions by a party unless such submission is requested by the Authority or unless, upon a party's written request, the Authority in its discretion grants permission to file such submission).

Also, during the pendency of this case, the Federal courts issued several decisions concerning agency drug testing programs. On December 14, 1989, the parties in this case (and parties in similar drug-related cases) were directed by the Authority to file supplemental briefs addressing the applicability to this case of recent Federal court decisions cited in the Order and other court decisions on drug testing programs. Both the Union and the Agency filed a supplemental brief.

III. Proposal 1

An employee may be subject to testing on the basis that management has a reasonable suspicion that the employee is using illegal drugs, as identified in the INS Drug Free Workplace Plan, on or off duty. Upon written request, an employee who has been tested on the basis of reasonable suspicion will be provided a copy of the written justification (which may include such matters as the dates and times of reported drug related incidents, reliable/credible sources of information, and the rationale leading to the test) for such testing no later than the end of the day. In the event the employee is sent for testing after 12:00 PM (Noon), the Service shall have until 12:00 PM (Noon) the following day to provide a copy of the written justification to the employee.

The decision to direct an employee to report for reasonable suspicion testing, in accordance with the INS Drug Free Workplace Plan, shall be based on articulable information, facts, and circumstances which would lead supervision to believe that reasonable suspicion exists that the employee is using illegal drugs, as identified in the Drug Free Workplace Plan.

Proposal 6

An employee in the Service may be subject to testing on the basis that management has a reasonable suspicion that the employee is using illegal drugs as identified in the INS Drug Free Workplace Plan, on or off duty. Upon request, an employee who has been tested on the basis of reasonable suspicion will be provided a copy of the factual observations upon which the testing has been based, in accordance with Article 15B of this Agreement. Such documentation should normally be made available to the employee within 48 hours. The decision to direct an employee to report for reasonable suspicion testing, in accordance with the INS Drug Free Workplace Plan, shall be based on articulable facts and circumstances which led supervision to believe that the employee uses illegal drugs.

A. Positions of the Parties

1. Agency

The Agency acknowledges the Union's statement that Proposals 1 and 6 do not apply to random testing. Agency's Statement at 12. However, the Agency argues that if Proposals 1 and 6 "are intended to preclude drug testing of employees in [testing designated positions] except in those circumstances where there is a 'reasonable suspicion' the particular employee to be tested is or has been using illegal drugs, they are inconsistent with section 3(a) of E.O. 125654 and, thus, with section 7117(a)(1) of the Statute." Agency's Statement at 15.

The Agency states that "Proposals 1 and 6 ostensibly permit management to order employees suspected of using illegal drugs to report immediately to a specimen collection site and provide a specimen without first receiving a copy of 'written justification' for such testing." Id. The Agency maintains that the written justification required by the Union's proposal "may often necessarily reveal facts which the employee not only has no immediate need to know, but which if prematurely revealed, impair further investigation" of the employee or other employees. Id. at 18. The Agency states that "management may have good reason not to contemporaneously disclose most, if not all, of the information in its possession which would provide 'reasonable cause' to order the employee to submit to testing." Id. The Agency contends that Proposals 1 and 6 would require the disclosure of confidential information concerning ongoing security investigations and, thereby, would interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.

The Agency also contends that Proposals 1 and 6 interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that "given the command structure set out by management for confirming the existence of 'reasonable suspicion,'" Proposals 1 and 6 would "require as a practical matter, that either the employee's first or second line supervisor create a 'written justification.'" Id. at 21-22. The Agency asserts that even if the proposals did not require that those tasks be performed by the employee's first or second-line supervisors, they would interfere with management's right to assign work. The Agency states that to be consistent with Proposals 1 and 6, the written justification must be completed within the time frames established by the proposals. The Agency argues that by dictating when that particular work is to be performed, Proposals 1 and 6 interfere with the Agency's right to assign work.

The Agency also states that even if the Department of Justice and the Agency's drug testing plans already require that written justification be provided employees within the time frames established in the proposals, Proposals 1 and 6 are still nonnegotiable. The Agency argues that the fact that the Agency has chosen to exercise its reserved rights in the form of a written order or regulation does not make the Union's proposals negotiable.

The Agency contends that Proposal 1 directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute and contravenes 5 U.S.C. § 5596(b) and § 7701(c)(2)(A). The Agency states:

Proposal 1 does not, on its face[,] preclude management from making use of a positive test result from a specimen obtained as the result of "reasonable suspicion" testing as the basis for an adverse action in the circumstance where management fails to provide a copy of the "written justification" to the employee within the tight time limits prescribed. However, the clear import of the proposal is that the Union would, in challenging any subsequent adverse action in such a circumstance on the employee's behalf, assert that the action would have to be set aside if management had, indeed, failed to meet these deadlines. That is, the purpose of the proposal is to create a tripwire over which management will frequently . . . have occasion to fall so that the employee can assert that management committed a "harmful error" within the meaning of 5 U.S.C. section 7117(c) requiring the action to be set aside.

Agency's Statement at 24. The Agency argues that the Union cannot create a contractual procedure which, if violated, would serve to negate an adverse action where management's failure to follow the procedure "could not have any effect on the employee's ability to defend himself against an adverse action based on a positive test result." Id. at 26. The Agency asserts that because any failure by the Agency to provide written justification to an employee within the time limits prescribed in Proposals 1 and 6 "could not have any effect on the employee's ability to defend himself against an adverse action based upon a positive test result[,]" such a requirement directly interferes with the Agency's right to discipline and contravenes 5 U.S.C. § 5596(b) and § 7701(c)(2)(A). Id. at 26.

The Agency also asserts that if the Union "attempt[s] to argue that management could provide whatever time was necessary to complete the written justification and transmit it to the employee merely by delaying its order to the employee to report to a collection site . . . our response would be that it must be rejected[.]" Agency's Statement at 27. The Agency argues that any delay in ordering an employee to submit a specimen in a situation where the employee is suspected of working under the influence of illegal drugs will reduce the Agency's ability to detect the drug use and, thereby, directly interfere with management's rights to determine internal security practices.

Finally, the Agency contends that Proposals 1 and 6 are not "appropriate arrangements" for employees adversely affected by the exercise of the Agency's rights under section 7106(a)(2)(A) of the Statute. The Agency asserts that Proposals 1 and 6 are "'procedural' in nature rather than constituting 'arrangements.'" Id. at 23. The Agency argues that the Authority's "appropriate arrangements" test in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) is "based on a misreading of the Statute." Id. See also id. at 56-59. The Agency states that, in any event, it is unable to address the Union's contention that the proposals are appropriate arrangements under the test set forth in Kansas Army National Guard because the Union has not described the adverse effects the proposals were designed to offset.

In its supplemental brief, the Agency states that recent Supreme Court decisions on drug testing are pertinent to this case because "they directly address the government's compelling interest in enabling responsible supervisors to detect and penalize and/or deter government employees . . . who use illegal drugs" and "they also address the undesirable effect on serving that interest which would be created by requiring an extensive diversion of supervisory and managerial resources for the purpose of documenting facts to establish 'reasonable cause' to test employees in critical positions." Agency's Supplemental Brief in Support of Agency Statement of Position (Agency's Supplemental Brief) at 20. The Agency argues that because the Supreme Court found the Government's interest "to be so 'compelling' as to outweigh the employee's privacy interest under the Fourth Amendment [of the United States Constitution]," it follows that any Union proposal which would amend the Agency's internal security practices "so as to severely limit management's ability to carry out such testing most effectively" cannot constitute a negotiable procedure or an appropriate arrangement within the meaning of section 7106(b)(2) and section 7106(b)(3), respectively. Id. at 17-18.

The Agency maintains that there is an inherent conflict between Proposals 1 and 6 and "the thrust of the Supreme Court's rulings." Id. at 18. The Agency argues that the proposals would create excessive burdens on Agency managers and "frequently require management to divert scarce supervisory . . . resources away from contemporaneously arising operational needs no matter how pressing these other needs are." Id. at 19. The Agency asserts that the Authority is "constrained" by the Supreme Court's reasoning in National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989) (Von Raab) to reject the Union's assertion that the proposals do not excessively interfere with the exercise of the Agency's rights to determine its internal security practices and to assign work. Id. at 25-26.

2. Union

The Union states that "Proposals 1 and 6 involve only that kind of drug testing which is based on 'reasonable suspicion.' They do not apply to other kinds of testing, such as random testing[.]" Union's Response to Agency's Statement of Position (Union's Response) at 13. According to the Union, the effect of Proposals 1 and 6 is "to institute the requirement that a pre-testing standard exists, in this case reasonable suspicion, upon which determinations to subject employees to drug testing must be based." Id. The Union asserts that the Agency has failed to demonstrate how Proposals 1 and 6 would violate management's rights under section 7106(a) of the Statute. The Union also contends that Proposals 1 and 6 are appropriate arrangements for employees adversely affected by the exercise of the Agency's right to test employees for illegal drug use.

The Union maintains that without articulable information to suspect an employee of illegal drug usage, employees might be subject to harassment and intimidation by Agency officials and, therefore, would be adversely affected by the Agency's exercise of its right to implement a reasonable suspicion testing program. The Union also maintains that reasonable suspicion testing adversely affects employees because it is an intrusion on employees' privacy and is "extremely personally embarrassing"; "tends to stigmatize the employee in a way random testing . . . does not, regardless of the outcome of the testing"; and damages the employee's relationship with the employer because the tests may be the basis for disciplinary action and performance based action. Id. at 15-16.

"In weighing the balance of interests between employees and [the Agency]" to determine whether any alleged interference with the Agency's right to assign work would be excessive, the Union states that "[b]y their unambiguous terms, the proposals require that employees 'be provided with' the required information. They do not address which individuals . . . would be responsible for providing the information. Thus, . . . the proposals have nothing to say about the Agency's past or future determinations as to who would provide the information." Id. at 18.

The Union asserts that Proposals 1 and 6 do not interfere with the Agency's internal security practices and do not compromise security investigations. The Union states that Proposal 1 "permits the employer significant latitude in providing the justification[.]" Id. at 19. The Union explains that where ongoing investigations involving others are involved, the written justification required in Proposal 1 could be tailored to exclude the names of other suspects or witnesses. "At the same time, the justification would at least provide the employee with the due process protection of knowing why she or he was directed to undergo the testing, and, therefore, would reduce instances in which testing [is] directed improperly." Id. The Union also states that the requirement in Proposal 6 that the employee be provided a copy of factual observations upon which reasonable suspicion testing is based "both provides the employee with minimal due process protection and allows the [Agency] to protect ongoing investigations and witnesses." Id. at 20.

The Union argues that establishing a time frame for providing the written justification for reasonable suspicion testing does not interfere with management's rights. The Union states that under Proposals 1 and 6, employees will "undergo testing first [and] receive the reason(s) later." Id. The Union maintains that the requirement that employees be given the reasons for their selection for reasonable suspicion testing is not to establish a basis to show harmful error exists. The Union states that "Proposals 1 and 6 would not alter the already-existing availability of or requirements for the defense of 'harmful error.'" Id. at 21.

The Union claims that the effect of Proposals 1 and 6 on the exercise of management's right rights is minimal when compared to the benefit provided employees. The Union asserts that the Proposals 1 and 6 would not: (1) prevent the Agency from directing employees to undergo reasonable suspicion testing; (2) designate the Agency official to provide the employee information concerning the reasons for the testing; (3) require that testing be delayed until written justification is provided; or (4) preclude the imposition of discipline.

B. Analysis and Conclusions

We find that Proposals 1 and 6 are consistent with Executive Order 12564. We also find that Proposals 1 and 6 do not directly interfere with the Agency's rights to determine internal security practices, assign work or discipline employees. Rather, Proposals 1 and 6 constitute negotiable procedures under section 7106(b)(2) of the Statute.

1. The Meaning of the Proposals

Proposals 1 and 6 do not concern the Agency's random drug testing program. The proposals concern only the Agency's plan to test an employee based on a reasonable suspicion that the employee is using illegal drugs. The plain wording of Proposals 1 and 6 acknowledges that an employee may be tested based on a reasonable suspicion that the employee is using illegal drugs. Proposals 1 and 6 provide that an employee designated for drug testing based on a reasonable suspicion of drug use will be provided "written justification" or "documentation" supporting the Agency's reasonable suspicion within 24 hours under Proposal 1 or 48 hours under Proposal 6. Proposals 1 and 6 also provide that the reasonable suspicion supporting the Agency's decision to test an employee shall be based on articulable information, facts, and circumstances which would lead the Agency to believe that an employee has used illegal drugs.

2. Proposals 1 and 6 Are Consistent with Executive Order No. 12564

We reject the Agency's contention that Proposals 1 and 6 are inconsistent with section 3(a) of Executive Order 12564 because the proposals preclude random drug testing of employees. We first note that Executive Order 12564 authorizes, but does not require, random testing. National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island Illinois, 30 FLRA 1046, 1054 (1988) (Rock Island I), decision on remand National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 33 FLRA 436 (1988) (Rock Island II), rev'd in part and remanded sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground), decision on remand National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 35 FLRA 936 (1990) (Rock Island III). The Executive Order also authorizes, but does not require, reasonable suspicion testing, post-accident testing, and applicant testing. Executive Order 12564, sections 3(c)(1), (2) and (d). Consequently, even assuming that the Agency correctly interpreted the proposals, the proposals would not be inconsistent with the Executive Order. Id.

In any event, the Agency has misinterpreted the effect of the proposals. As we stated above, Proposals 1 and 6 prescribe only certain steps management must take when it orders a "reasonable suspicion" drug test. "They do not apply to other kinds of testing, such as random testing[.]" Union's Response at 13. Accordingly, we conclude that Proposals 1 and 6 are consistent with the Executive Order.

3. Proposals 1 and 6 Do Not Interfere with the Agency's Right to Determine Internal Security Practices

An agency's plan to test employees for use of illegal drugs is an internal security policy. See Rock Island I, 30 FLRA at 1054-60. The disclosure of information that pertains to the implementation of that internal security policy, insofar as disclosure would compromise that aspect of the policy involving identification of employees who use illegal drugs, would directly interfere with an agency's right to determine internal security practices under section 7106(a)(1) of the Statute. National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 639 (1990) (EPA II). However, proposals which merely require an agency to notify employees of matters concerning their conditions of employment do not directly interfere with an agency's rights under section 7106 and are negotiable procedures under section 7106(b)(2) of the Statute. Id. at 635. See also National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706 (1990) (EPA I) (Proposal 3, which required that the union be provided an opportunity to review the content of the agency's security bulletins, did not interfere with the agency's internal security practices and constituted a negotiable procedure).

Even assuming that the Agency's decision to conduct reasonable suspicion testing constitutes an exercise of management's right to determine its internal security practices under section 7106(a)(1), we find that Proposals 1 and 6 do not directly interfere with that right. Proposals 1 and 6 only require the Agency to notify employees of the reasons supporting the Agency's reasonable suspicion that an employee is using illegal drugs after the employee has been tested based on that reasonable suspicion. The Union states that the proposals permit the Agency "significant latitude" in providing written justification for reasonable suspicion testing. Union's Response at 19. The plain wording of Proposals 1 and 6 and the record before us confirm the Union's statement as to the effect of the proposals. Although Proposal 1 provides that "written justification . . . may include such matters as the dates and times of reported drug related incidents, reliable/credible sources of information, and the rationale leading to the test," Proposal 1 does not mandate that each of those matters be included in every written justification provided employees. Union's Response at 19 (emphasis in original). In fact, the Union specifically states that "where ongoing investigations involving others were involved, the written justification could be tailored to exclude names of such other suspects and witnesses[.]" Id.

We agree with the Union that the Agency retains the latitude under Proposals 1 and 6 to provide notices to employees that are consistent with the Agency's security policies. Proposals 1 and 6 only require the Agency to provide an employee with justification or reasons supporting the Agency's reasonable suspicion that the employee is using illegal drugs. The proposals do not require the Agency to disclose every detailed fact in support of those reasons. Thus, where the Agency has legitimate security concerns relating to the disclosure of information, the proposals do not preclude the Agency from preparing the written justification to exclude the information which, if disclosed, would compromise the Agency's security plan or policy.

We also note that section 3.c(3) of Federal Personnel Manual (FPM) Letter 792-19 provides that "[w]here testing is based on reasonable suspicion, each agency should promptly detail in writing the circumstances which formed the basis of its determination that reasonable suspicion exists to warrant the testing." Section 4.c of FPM Letter 792-19 provides that "[e]mployees being tested under conditions outlined in section 3c will also receive notice of the circumstances leading to the decision to test them for illegal drug use."

Further, the requirement in Proposal 6 that a reasonable suspicion be based on articulable facts does not amount to a requirement that the Agency disclose each articulable fact to an employee after the employee has undergone a drug test. Rather, the effect of that requirement in Proposal 6 is to define the reasonable suspicion standard as a belief based on articulable facts and circumstances.

In EPA II, we found that, even assuming that a proposal requiring only that the agency notify the union of incidents that could pose a threat to employees' well-being concerned internal security matters, the proposal would not interfere with management's rights to determine internal security practices. Rather, that proposal constituted a negotiable procedure under section 7106(b)(2). The proposal in EPA II did not prescribe any action which the agency must take to deal with the incidents listed in the proposal nor did the proposal preclude the agency from taking any action it determined was necessary as a part of its internal security policies to respond to the incidents. Id. at 634. See also EPA I, 35 FLRA at 717-18.

Consistent with EPA I and EPA II, we find that, by requiring the Agency to notify employees of the reasons why they were directed to undergo reasonable suspicion testing, Proposals 1 and 6 do not hamper the Agency's ability to prevent the unwarranted disclosure of security information and, therefore, do not directly interfere with the Agency's right to determine internal security practices. Rather, Proposals 1 and 6 constitute negotiable procedures under section 7106(b)(2) of the Statute. See EPA II, 36 FLRA at 635; EPA I, 35 FLRA at 717-18. See also International Association of Machinists and Aerospace Workers Union and Department of the Treasury, Bureau of Engraving and Printing, 33 FLRA 711, 732 (1988) (Proposal 10, first sentence, which required the agency to inform an employee in writing as to why he or she was designated as an "essential" employee, should management decide on such a designation, "does not interfere with any management rights"); National Association of Government Employees, Local R1-144 and Department of the Navy, Naval Underwater Systems Center, 29 FLRA 471 (1987) (Naval Underwater Systems Center) (a proposal requiring the agency to provide an employee "persuasive reasons" as to why he or she was selected for furlough did not substantively interfere with the Agency's right to lay off employees but merely established a procedure for the agency to follow in the exercise of that right), enforcement denied as to other matters sub nom. Department of the Navy, Naval Underwater Systems Center v. FLRA, 854 F.2d 1 (1st Cir. 1988); AFSCME, Local 2027 and ACTION, 27 FLRA 191 (1987) (Chairman Calhoun concurring) (Proposal 1, requiring the agency to provide a repromotion eligible who is not selected from a best qualified list "persuasive reasons" for nonselection, was negotiable because it merely established a procedure for management to follow in the exercise of its rights to hire and select).

4. Proposals 1 and 6 Do Not Interfere with the Agency's Right to Assign Work

The Agency contends that by requiring written justification, Proposals 1 and 6 amount to an assignment of work to either the first or second-line supervisor and, therefore, directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. We reject this contention.

Proposals 1 and 6 require only that the Agency provide employees with a written justification. Even assuming that the proposals had the consequence of necessitating the assignment of an employee to prepare a written justification, the proposals do not determine who will prepare the written justification. The Agency asserts that "given the command structure set out by management for confirming the existence of 'reasonable suspicion,'" Proposals 1 and 6 would require that either the employee's first or second-line supervisor create a written justification. Agency's Statement at 21-22. However, the proposals do not require the Agency to follow its command structure.

The proposals preserve the Agency's right to determine who will prepare a written justification. Proposals establishing procedures that an agency will follow in exercising its rights under the Statute will not be found to be nonnegotiable because they require the agency to assign someone to implement the procedure. See National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 368 (1990) (Naval Plant Representative Office) ("To bar the negotiation of procedures that would otherwise be negotiable under section 7106(b)(2) because they entail the assignment of work to agency personnel would nullify section 7106(b)(2) and overlook the explicit purpose and intent of that subsection."). Because Proposals 1 and 6 establish a procedure that the Agency will follow in exercising its right to test employees for illegal drugs as part of its plan to secure and safeguard its property and personnel and because the proposals do not impermissibly specify who will implement the procedure, we find that Proposals 1 and 6 do not interfere with the Agency's right to assign work. See U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, Local 1760, 36 FLRA 466, 473-74 (1990).

Further, the Agency has failed to establish that by requiring that written justification be provided within a specific time period, Proposals 1 and 6 interfere with its right to assign work. Contrary to the Agency's assertion, nothing in the proposals would "require management to divert scarce supervisory (and other, e.g., messenger and government vehicle) resources away from contemporaneously arising operational needs[.]" Agency's Statement at 19. As we stated above, Proposals 1 and 6 establish a procedure and do not directly interfere with the Agency's right to assign work. The proposals preserve the Agency's discretion to determine who will be assigned to implement that procedure. We will not find a procedure like the one in Proposals 1 and 6 nonnegotiable merely because an agency must assign someone to implement that procedure. See Naval Plant Representative Office, 35 FLRA at 368.

5. Proposal 1 Does Not Interfere with the Agency's Right to Discipline

The Agency acknowledges that where management fails to provide an employee a written justification for reasonable suspicion testing within the time limits prescribed in the proposal, "Proposal 1 does not on its face, preclude management from making use of a positive test result from a specimen obtained as a result of 'reasonable suspicion' testing as a basis for an adverse action." Agency's Statement at 24. Nevertheless, the Agency maintains that the effect of Proposal 1 is to require the Agency to set aside a disciplinary action based on a positive drug test result if the Agency failed to follow the procedure in Proposal 1 when it ordered the drug test based on "reasonable suspicion." We find that the Agency has failed to demonstrate that Proposal 1 affects in any way its right to discipline employees under section 7106(a)(2)(A) of the Statute.

The Agency claims that under Proposal 1, a failure to provide written justification to an employee amounts to "harmful error" and, thereby, "create[s] a contractual procedure which, if violated, would serve to negate an adverse action in the circumstances where . . . [there is a] failure on management's part to provide such a written justification within the prescribed time limits." Agency's Statement at 26. The Union states that "nothing in the proposals even contemplates 'harmful error[.]'" Union's Response at 21. The Union also states that "Proposals 1 and 6 would not alter the already-existing availability of or requirements for the defense of 'harmful error.'" Id.

We find that the Agency's interpretation of Proposal 1 is not supported by the plain wording of the proposal or the record. Proposal 1 cannot reasonably be interpreted as requiring a determination by MSPB or an arbitrator that failure to provide the specified information constitutes "harmful error." Proposal 1 establishes a procedure under section 7106(b)(2) of the Statute. Whether a failure to comply with this, or any other negotiable procedure, would constitute "harmful error" would depend on the facts of a given case and the application of 5 U.S.C. §§ 5596(b) and 7701(c)(2)(A) to the facts of that case. Consequently, we conclude that the Agency has failed to demonstrate that Proposal 1 contravenes 5 U.S.C. §§ 5596(b) and 7701(c)(2)(A).

Further, the Agency asserts that "while the Authority has held that the harmful error rule does not apply to disciplinary actions involving suspensions of 14 days or less, this is, with due respect, an erroneous conclusion of law." Agency's Statement at 26 (citation omitted). The harmful error rule provides that an agency's decision on an adverse action or performance-based action may not be sustained if "harmful error" is shown in the application of the agency's procedures in arriving at the decision. Department of the Air Force, Griffiss Air Force Base and American Federation of Government Employees, Local 2612, 34 FLRA 712 (1990) (Griffiss Air Force Base). The case before us does not raise the issue of whether the harmful error rule should be applied to disciplinary actions of 14 days or less. Therefore, we decline to address the Agency's assertion concerning the Authority's application of the "harmful error" rule. However, we note that in Griffis Air Force Base the Authority reaffirmed its decision that the harmful error rule of 5 U.S.C. § 7701(c) does not apply to a suspension of 14 days or less. See also U.S. Department of the Air Force, Air Force Logistics Command, Hill Air Force Base, Utah and American Federation of Government Employees, 34 FLRA 986 (1990).

We conclude that Proposals 1 and 6 are consistent with Executive Order No. 12564 and do not directly interfere with the Agency's rights to determine internal security practices, assign work, or discipline employees. Rather, Proposals 1 and 6 constitute negotiable procedures under section 7106(b)(2) of the Statute.

Because we find that Proposals 1 and 6 constitute procedures which do not directly interfere with the Agency's rights, it is unnecessary to determine whether they are appropriate arrangements as asserted by the Union. See Naval Underwater Systems Center, 29 FLRA at 473. See also International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 118 (1987).

IV. Proposal 3

A. The Service will grant reasonable official time to union representatives, who are involved in employee representation regarding any matter covered by this agreement.

. . . .

C. The representative shall suffer no loss of pay or benefits as a result of carrying out his/her representational responsibilities as defined in A. above.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 3 is inconsistent with 5 U.S.C. § 5542 because it is "too broad and too vague" and, consequently, would require the Agency to pay an employee overtime compensation for the time the employee is engaged in representational activities. Agency's Statement at 45. The Agency states that under Proposal 3, "employees acting as [Union] representatives, [who] might otherwise have been in a position to have been called for regularly scheduled [5 U.S.C.] section 5542 overtime assignments but for their representational duties," would receive overtime compensation for the time that they had to forgo opportunities to work overtime in order to carry out their representational responsibilities. Id. at 46. The Agency maintains that Proposal 3 would require that the employee be compensated at the overtime rate for the time spent on representational activity so that the employee "suffer[s] no loss of pay or benefits as a result of carrying out his/her representational responsibilities." Id. The Agency asserts that the Agency cannot pay employees overtime compensation for time spent performing representational duties that otherwise would have been spent by the employees performing hours of work on overtime, without violating 5 U.S.C. § 5542.

2. Union

The Union states that Proposal 3 "contractually require[s] . . . that employees who are [Union] representatives not be improperly denied official time (in this instance that is synonymous with not lose pay or benefits) to represent employees on matters involving the Drug Free Workplace Plan." Union's Response at 27. The Union asserts that the Agency has misinterpreted Proposal 3. The Union states that "[t]he Agency Head apparently interprets [Proposal 3] as relating specifically to instances in which union representatives who perform representational activities during hours which are outside their regularly scheduled workweek would claim entitlement under [Proposal 3] to overtime for those hours. That interpretation is incorrect." Id. at 25.

The Union states that Proposal 3 "does not by its facial meaning nor by [the Union's] intent, attempt to broaden the circumstances under which overtime compensation or compensatory time can be provided to union representatives governed by 5 U.S.C., Chapter 55 or the Fair Labor Standards Act." Id. at 26. According to the Union, Proposal 3 "would exclude time spent on representational activity from the computation of [administratively uncontrollable overtime (AUO)] so that employees would be neither advantaged nor disadvantaged by having been engaged in representational activity in the computation of their "average' number of hours of AUO worked[.]" Id. The Union maintains that the Agency has the discretion to determine how AUO computations will be made, and that discretion is not sole and exclusive. The Union argues that "as with official time for negotiations, representation time related to the Drug Free workplace program is within the Agency's discretion to exclude when computing AUO." Id.

B. Analysis and Conclusions

Proposal 3 provides that employees who are Union representatives will not be improperly denied official time to represent employees on matters concerning the Agency's Drug Free Workplace Plan. We find that Proposal 3 is negotiable.

The plain wording of Proposal 3 provides that the employees engaged in representational activities shall not suffer a loss in pay or benefits as a result of their representational activities. Nothing in the wording of the proposal requires the Agency to provide overtime compensation to employees serving as Union representatives for the time that they would have to forgo opportunities to work overtime in order to carry out their representational responsibilities. Moreover, Proposal 3 would not require the Agency to provide official time for hours that an employee is not in a duty status or to pay employees overtime for representational activities that occur when an employee is not in an overtime duty status.

Overtime compensation is paid pursuant to 5 U.S.C. § 5542(a), which provides that all hours of work officially ordered and approved in excess of 8 hours in a day or 40 hours in an administrative workweek are overtime work entitling the employee to overtime compensation or, where appropriate under 5 U.S.C. § 5543, to compensatory time off. However, a union official's performance of representational activities on nonduty time outside regular work hours is not the performance of hours of work officially ordered or approved that constitutes overtime work for which overtime pay or compensatory time off can be granted. See U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service and National Weather Service Employees Organization, 36 FLRA 352, 358 (1990) (National Weather Service); Wright-Patterson Air Force Base, Ohio, 2750th Air Base Wing and American Federation of Government Employees, Local No. 1138, 23 FLRA 390, 392 (1986) (Wright-Patterson Air Force Base). To be entitled to overtime compensation for representational activities performed outside of regular duty hours, the employee/representative must be in an overtime duty status (at the direction of the agency) when the event arose which called for the performance of representational functions. Warner Robins Air Logistics Center, Warner Robins, Georgia and American Federation of Government Employees, Local 987, 23 FLRA 270 (1986) (Warner Robins Air Logistics Center). Therefore, a proposal providing for the payment of overtime compensation for employees engaged in representational activity outside of their normal duty hours is nonnegotiable. American Federation of Government Employees, AFL-CIO and Environmental Protection Agency, 21 FLRA 635, 637-38 (1986) (Proposal 2).

The Union states that Proposal 3 is intended to be implemented consistent with the law governing the granting of official time. The Union also states that Proposal 3 "does not, by its facial meaning nor the [Union's] intent, attempt to broaden the circumstances under which overtime compensation or compensatory time can be provided to union representatives governed by 5 U.S.C., Chapter 55 or the Fair Labor Standards Act." Union's Response at 26. We find that the Union's explanation of Proposal 3 is consistent with the wording of that proposal and that Proposal 3 is consistent with the requirements in law concerning the granting of overtime for representational activities.

The Agency has not established that Proposal 3 requires the payment of overtime compensation in a manner inconsistent with 5 U.S.C. § 5542. The Agency also has failed to establish that Proposal 3 is inconsistent with any other law governing the granting of official time. We find that by providing that employees engaged in representational activities shall receive the same pay and benefits that they would be entitled to if they were performing work in a regular duty status, Proposal 3 is consistent with legal requirements concerning the payment of overtime compensation for representational activities. See National Weather Service, 36 FLRA at 358; Warner Robins Air Logistics Center, 23 FLRA at 271.

Finally, we note that the Union argues that Proposal 3 is consistent with the requirements in law and regulation concerning the payment of AUO. The Agency states that, to the extent that Proposal 3 provides that employees shall not lose the benefit of AUO pay because they are engaged in representational activity, the Agency does not dispute that Proposal 3 can be implemented consistent with the requirements in law and regulation concerning the payment of AUO. See Agency's Statement at 45-46. In light of the Union's and the Agency's statements, we find that there is no dispute between the parties that Proposal 3 is consistent with applicable law and regulations concerning the payment of AUO. Therefore, we need not address the Union's arguments concerning AUO.

Based upon the foregoing, we conclude that Proposal 3 is negotiable.

V. Proposal 4

A. One union representative from each Council will be authorized to be present at the time random selections for drug testing are made, for the purpose of verifying the validity of the selection process. The Service agrees to pay all associated travel and per diem.

B. One union representative from each Council will be authorized to make an on site inspection of the laboratories, facilities, and procedures of the company selected as the analysis contractor, on a quarterly basis. All travel and per diem costs shall be borne by the Service.

C. Each Council shall be permitted to have an on site observer present whenever random selections are to be made. The union shall receive a ten (10) working day advance notice that random selections are to be made and the location(s) where the selection(s) will be made. The union observers will be in an on-duty status. Any travel and per diem costs associated with a union observer's presence for selections will be borne by the employer.

The verification procedures shall include but are not limited to:

1. Verifying the fact that there was no data stored in the computer which would contaminate the random selection process once the program was loaded into the computer for selection;

2. Verifying the accuracy and integrity of the random selection computer software;

3. Verification of the relative accuracy of the employee data base from which the random selections will be made;

4. Witnessing the generation of the random selection list from the computer at a distance from which identification of individual names would not be possible;

5. At the time random computer selections are made both the on-site union and management officials will observe the list being generated and sign the back of each page of a copy of the computer generated list. The union officials will not have access to the names on the list at that time.

6. The signed copies of the list will be sealed in an evidence envelope and signed by the parties present. It will then be secured by management.

7. Upon completion of the testing of all individuals on the list who are to be tested, but not later than sixty days from the date the list was generated, management will provide the secured list to the Presidents of each Council.

A. Positions of the Parties

1. Agency

The Agency describes its random selection procedure as follows:

The [Agency] will use a program in a computer located in its Washington Headquarters offices to generate a random list of employees in [testing designated positions (TDPs)] to be tested. It is anticipated that, at least initially, a list of 100 names will be generated each time a list is called for. The employees occupying TDPs will be given a separate additional code in the [Agency's] central personnel data bank for this purpose so they can be distinguished from other employees in the [Agency's] personnel data base who are not in TDPs. The lists generated will be nationwide. In the interest of security, these lists will not be generated at fixed intervals, but rather at irregular unannounced, intervals throughout the year. The names of employees selected will be sent to responsible supervisors at the duty sites where the employees selected are located, and, on days prearranged with the collection site contractors, the employees will be ordered to report to the nearest one of 70 collection sites around the country.

Agency's Statement at 47-48.

The Agency states that section A and section C of Proposal 4 are "couched in such vague terms that it is difficult to determine what the Union intends thereby. Therefore, . . . the Authority is, in accordance with precedents, obliged to decline to pass on their negotiability." Agency's Statement at 49 (citations omitted).

In the alternative, the Agency contends that section A and section C (including subsections 1-7) of Proposal 4 violate the Agency's right to determine internal security practices under section 7106(a)(1) of the Statute. The Agency argues that section A and section C would "directly involve the Union here in the development and implementation of the selection process" of the Agency's random drug testing program and, thereby, interfere with the Agency's right "to determine how it will secure its random selection process." Id. at 49-50. The Agency also argues that section A and section C interfere with the Agency's right to determine internal security practices under section 7106(a)(1) because those sections would require management to warn the Union of drug testing in advance of the random selection process. The Agency asserts that "such forewarning will serve to put unit employees in [testing designated positions] who are subject to random selection . . . [on notice] that a list is to be generated, leading them to draw the reasonable inference that selections for random testing will soon follow." Id. at 50. The Agency argues that notice to employees of an impending selection will allow employees who use illegal drugs to curtail their consumption during this high risk period and destroy the "maximum deterrent and detection effect" of the random testing program. Id.

The Agency contends that section B of Proposal 4 does not concern the conditions of employment of unit employees within the meaning of 7103(a)(14) of the Statute. The Agency states that section B establishes that Union representatives will be involved in the inspection of certified drug testing laboratories. The Agency asserts that "the Secretary of [Health and Human Services (HHS)] or his designees have the exclusive responsibility for conducting inspections of the certified laboratories that federal agencies are obliged to use in order to determine whether they are continuing to meet the standards set out in the guidelines." Id. at 51 (citing sections 3.2(b) and 3.13 of the final Guidelines, 53 Fed. Reg. at 11, 970). The Agency argues that Union representatives are not qualified to conduct laboratory inspections. The Agency maintains that any inspection by Union representatives would be "totally redundant" and would "open up the possibility of a conflict between the conclusions of HHS' inspectors and those reached by Union inspectors." Id. The Agency asserts that "the inspections could not have any impact on the conditions of employment of unit employees." Id. at 52.

2. Union

"Proposal 4 applies to random drug testing under the [Agency's] Drug Free Workplace Plan." Union's Response at 30. The Union states that the procedures in Proposal 4 do not involve the Union in "either the development or implementation of the [random] selection process." Id. at 34. The Union asserts that Proposal 4 does not interfere with the Agency's right to determine internal security practices "[i]nasmuch as [Proposal 4] enables the [Agency] to maintain the purpose of its internal security practice, which is to assure randomness and confidentiality until employees are directed to undergo urinalysis testing[.]" Id. at 35.

The Union explains:

Proposal 4 refer[s] to utilizing a software program to verify random selection, as distinct from the Agency's random selection program and employee data base. The Union's copy of the verification program would be run at the beginning of a random selection procedure and would provide a measure of assurance that the computer had been programmed to draw randomly and would do so from input data which accurately reflected the group of employees whom the [Agency] determined to subject to the random testing.

Union's Response at 32.

The Union states that Proposal 4 allows a Union representative to be present when the list of employees randomly selected for testing is generated. The Union maintains that the procedures in Proposal 4 do not "permit[] a [U]nion representative to see or retain possession of the list of selectees. Rather, they require only that the list be generated, signed on the back without being read, and sealed until after the selectees have been tested." Id. at 35. After testing resulting from each round of selections has occurred, Proposal 4 would allow the Union to review the list generated by the verification program to: (1) verify the "identities of persons who have been selected for testing;" (2) "verify that the correct employees' names are entered[;]" and (3) "make[] sure the computer has been told to randomly select items from the data base, while preserving to management the possession of the contents of the data base." Id. at 34-35.

The Union argues that the requirement in Proposal 4 that the Agency provide the Union 10 days' advance notice that random selections will be made in the near future would not provide employees advance notice of the date of the actual testing. The Union maintains that sections A and C of Proposal 4 "do not indicate that selections would occur at any particular time because the [Agency] would be free to sit on the lists until it wanted to run the urinalysis tests." Id. at 36. The Union asserts that the Agency's argument that the notice requirement is nonnegotiable because "warning employees about imminent but unspecified urinalysis testing dates would lead employees to 'curtail their consumption'" is without merit. Id. The Union states that "the purpose of random testing, as an exercise of internal security practices under the Drug Free Workplace programs and E.O. 12564, is specifically to deter illegal drug use[,]" and that Proposal 4 "actually furthers, rather than interferes with, the deterrent effect of random drug testing systems." Id. at 36-37 (footnotes omitted).

The Union contends that the requirement in section B that the Union be allowed to inspect the certified drug testing laboratory is negotiable. The Union maintains that section B does not concern or affect the authority of HHS inspectors to determine whether laboratories conducting drug testing of Federal employees are in compliance with Government-wide regulations. The Union states that "inspections by union officials aren't purported substitutes for [HHS] inspections." Id. at 37. The Union contends that "[t]he quarterly inspections which [the Union] is proposing is an appropriate arrangement and a procedure to verify testing is being conducted competently." Id. at 38. The Union also argues that "[b]ecause there is no requirement that [the Agency] modify its contract with a laboratory in any way as a result of [section B], there is no interference with the [Agency's] right to make determinations with respect to contracting out." Id.

B. Analysis and Conclusions

1. The Effect of the Proposal

The Agency has determined that it will use a computer program to generate a list of employees in testing designated positions for random drug testing. The Agency also has determined how the testing will be implemented once the list is generated. Sections A and C of Proposal 4 provide for the presence of Union representatives when the Agency generates the list of employees randomly selected for drug testing by computer. The Union representatives will be responsible for verifying the validity of the selection process "to assure the random testing is, in fact, random rather than targeted against pre-determined individuals." Petition at 6. The verification envisioned by the Union does not involve the Union in "either the development or implementation of the random selection process." Response at 34.

Subsections C.1, C.2 and C.3 of Proposal 4 "refer to utilizing a verification software program, which would be developed and provided to both [the Agency] and the [U]nion." Petition at 6. The Union's copy of the program would be run at the beginning of the Agency's random selection procedure to ensure that "the computer had been programmed to draw randomly and would do so from input data which accurately reflected the employees who [the Agency] determined to subject to the random testing." Id. Subsections C.4 and C.5 of Proposal 4 provide that Union representatives will witness the generation of the list of randomly selected employees from the computer at a sufficient distance to prevent identification of the names of employees. Once the list is generated, Union representatives will sign the back of each page of the list. Subsection C.6 of Proposal 4 provides that the signed list will be sealed in an envelope which shall be signed by the Union and Agency representatives present and then secured by the Agency. Subsection C.7 provides that when all the individuals on the list have been tested, "but not later than 60 days from the date the list was generated," the Agency shall provide the list to the Union.

Section B of Proposal 4 provides the Union opportunities to inspect the laboratory contracted by the Agency to perform drug testing analyses on bargaining unit employees' urine samples.

2. Management's Right to Determine Internal Security Practices

It is well established that 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. Rock Island I, 30 FLRA 1046 (1988).

We must examine the requirements of Proposal 4 to determine whether they directly interfere with the Agency's right under section 7106(a)(1) to implement a random drug testing program.

3. Sections A and C

The Agency asserts that sections A and C of Proposal 4 "are intended to involve the Union here in the development and implementation of the [random] selection process" and, therefore, "would interfere with management's right under section 7106(a)(1) to determine how it will secure its random selection process." Agency's Statement at 49 and 50. We find that sections A and C establish procedures to be followed in connection with the random selection process of the Agency's drug testing program and, therefore, are negotiable.

(a) Union Representatives at Random Selection Sessions

Under the procedures established in sections A and C of Proposal 4, Union representatives are to be present when the computer generates the list of employees randomly selected for drug testing. The Union representatives will be present only to witness the generation of the list of employees from the computer and not to participate in the computer operations that generate the list.

The Agency has not shown how the presence of Union representatives to witness the generation of a list of employees from the Agency's computer interferes with the Agency's ability to develop and implement its random selection process. For example, the Agency does not contend that during the random selection sessions the Agency will be engaging in discussion of and deliberation on the selection of employees or other aspects of the implementation of the drug testing program. Compare National Federation of Federal Employees, Local 1437 and United States Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052, 1061-62 (1990) (proposal requiring the appointment of a union observer on the rating and ranking panel would involve the union in management's internal deliberative process and, therefore, interfered with the agency's right to select under section 7106(a)(2)(C)). Rather, as the Agency acknowledges, the selection process is a purely mechanical operation.

The record indicates that the Agency's decisions concerning the development and implementation of the random selection process occur before the Agency schedules a session to generate the list of employees randomly selected to be tested. Therefore, the Union would participate in the random selection process only after the Agency's internal deliberative process concerning the development and implementation of the random selection process has been completed. See Department of the Army, 7th Infantry Division (Light), Fort Ord, California and American Federation of Government Employees, 34 FLRA 916, 926 (1990) (proposal applied only after the agency's internal deliberative process concerning application of performance standards has been completed; consequently, the proposal did not permit the union to interject itself into the agency's internal deliberations concerning the performance appraisal process).

We find that the portion of sections A and C of Proposal 4 which provides for the presence of a Union representative when the lists of employees randomly selected for testing is generated by the Agency's computer does not interfere with the Agency's right to develop and implement its random selection process as part of its plan to secure or safeguard its personnel, its physical property, and its operations. See National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA 174, 180-85 (1991) (Proposal 5, which provided for the presence of a union representative as an observer during the collection of urine specimens for drug testing, would have no effect on the agency's decision or ability to conduct drug tests and, therefore constituted a negotiable procedure), petition for review filed sub nom. U.S. Department of Agriculture, Forest Service v. FLRA, No. 91-1275 (D.C. Cir. Jan. 6, 1991).

Also, sections A and C do not establish any criteria governing the exercise of the Agency's right to establish a random drug testing program that restrict the range of an agency's discretion pursuant to its right to determine internal security practices. Therefore, sections A and C do not place a substantive limitation on the exercise of the Agency's rights. Because the Agency has not demonstrated how the presence of Union representatives at the random selection sessions directly interferes with any management right, we conclude that the requirement in sections A and C of Proposal 4 for Union representation at random selection sessions is negotiable.

(b) Verification of the Selection Process

Section A and subsections 1-3 of section C of Proposal 4 provide that Union representatives present at random selection sessions will be responsible for verifying: (1) that there is no data stored in the computer which would contaminate the random selection process once the program is loaded into the computer; (2) the accuracy and integrity of the random selection computer software; and (3) the relative accuracy of the data base from which random selections are made. We find that subsections 1-3 of section C do not interfere with the Agency's ability to develop a random drug testing program. However, we are unable to determine from the wording of Proposal 4, and the Union's explanation, how the verification program required by section A and subsections 1-3 of section C would affect the Agency's ability to determine the policies or to take the actions that will ensure the security of the random drug testing program. Consequently, we are unable to determine whether and to what extent section A and subsections 1-3 of section C interfere with the Agency's right under section 7106(a)(1) to determine its internal security practices. Therefore, we will dismiss the petition for review as to section A and subsections 1-3 of section C of Proposal 4.

Management's right under section 7106(a)(1) to determine its internal security practices includes the right to determine the policies and to take the actions which are part of its plan to secure or safeguard its personnel and physical property and to prevent the disruption of its operations. See National Treasury Employees Union and the U.S. Department of Energy, Washington, D.C., 38 FLRA 79, 83 (1990). We find that this right also encompasses the policies that management adopts and the actions it takes to protect the integrity of the random selection process, including computer equipment and software used in that process.

The Agency argues that the verification procedures would involve the Union in the development and implementation of the random selection process. The verification procedures in sections A and C do not require the Agency to randomly select employees by computer. Sections A and C also do not provide for Union participation in the development of a computerized random selection process. However, if the Agency implements a computerized random selection process, sections A and C require the Agency to incorporate procedures that will allow the Union to verify the randomness of the selection process. Under those procedures, the Agency is required to develop and give the Union a copy of a random selection verification software program. Requiring the Agency to provide the Union with a copy of a verification software program after it has been developed by the Agency does not interfere with the Agency's ability to develop that software program or any other aspect of the computerized random selection process. Therefore, we reject the Agency's argument that by requiring the Agency to give the Union a copy of a verification software program, sections A and C would involve the Union in the development of the Agency's random selection process.

However, we are unable to determine whether the use of a verification software program would directly interfere with the Agency's right to ensure the security of the random selection process. Under sections A and C, as explained by the Union, the Union's copy of the Agency's verification software program will be run in the Agency's computer to verify the random selection program and the computer data base at the beginning of each random selection session. However, the Union does not describe the verification program required by the proposal and we are, therefore, unable to assess how that program would work. We are unable to determine, for example, whether a verification program could be developed that would accomplish the objectives required by the Union without also affecting in some manner the confidentiality of the random selection process. That is, we are unable to determine whether the use of such a verification program would permit the Union to obtain information that would compromise the security of the process in order for the Union to be assured that there is no extraneous data in the computer, that the data base is accurate, or that the program does in fact generate names on a random basis.

If a verification program could be developed that would accomplish the objectives required by the Union and would not, by its use, affect or compromise the random selection process, the use of such a program would not appear to pose a risk to the security of the Agency's random selection process. On the other hand, if the use of such a program would affect or compromise the random selection process, requiring the use of the Union's copy of that program would directly interfere with management's right to determine its internal security practices.

The record does not contain sufficient information for us to make the findings necessary to determine the nature or extent of the security risk to the Agency's operations and property. We are unable to determine how the proposed verification program would work. Therefore, we are unable to determine the impact of sections A and C on the Agency's ability to safeguard its operations and its property from damage, because we are unable to assess the nature of the verification software program to be developed by the Agency and the effect of using that program on the Agency's random selection process.

In National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground, Installation Support Activity, 31 FLRA 241, 254-55 (1988) (Aberdeen Proving Ground, Installation Support Activity) (Proposal 9), the Authority dismissed the union's petition for review as to a proposal which provided that the computer used to select employees for random drug testing would be programmed by a disinterested individual and "monitored by union representation." Id. at 254. Because the union did not define what it intended by the phrase "monitored by union representation," the Authority found that the proposal could be interpreted to give the union a right to: (1) receive information concerning the implementation of the random selection process and, thus, could be negotiable; or (2) be directly involved in the development and implementation of the selection process, in which case the proposal would be nonnegotiable. There was nothing in the record on which the Authority could base a decision as to which interpretation was intended by the union. Therefore, the Authority dismissed the petition for review as to that proposal.

The record in this case does not contain sufficient information for us to determine whether verification of the accuracy of the Agency's random selection process can be accomplished, pursuant to the disputed portions of Proposal 4, without interfering with the Agency's ability to safeguard its operations and property. Nor does the record contain sufficient information concerning the Agency's computer process and the verification software program to allow us to determine the impact of the Union's use of the verification program on the Agency's ability to ensure the security of its random selection process. Because the record is not sufficient for the Authority to make a negotiability determination concerning the verification process described in section A and subsections 1-3 of section C, we will dismiss the petition for review as to section A and section C, subsections 1-3, of Proposal 4. See id. at 255.

(c) Notice of Random Selections

Section C of Proposal 4 requires the Agency to give the Union 10 working days' notice of random selections. Section C requires notice of the session at which random selections will be made, but does not require the Agency to provide the Union at that session with the names of the employees selected. Under subsection 7 of section C, the names of employees selected in a random selection session need not be disclosed until testing is completed, but not later than 60 days from the date the names were generated at the session.

The Agency does not specifically object to subsection 7 of section C. Moreover, the Agency does not address the relationship between the 10-day notice requirement of section C and the 60-day period for the disclosure of the list of names set forth in subsection 7. Rather, the Agency states only that the requirement of a 10-day notice to the Union prior to the generation of a list of names provided in section C of Proposal 4 "will serve to put unit employees in TDPs who are subject to random selection . . . [on notice] that a list is to be generated, leading them to draw the reasonable inference that selections for random testing will soon follow." Agency's Statement at 50. The Agency argues that the notice requirement is "destructive of the element of surprise required to give random testing its maximum deterrent and detection effect." Id.

Contrary to the Agency's argument, sections A and C of Proposal 4, to the extent that they provide that the Union be notified of random selection sessions, do not require advance notice of drug tests. Compare American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 37 FLRA 1456 (1990) (Proposals 1-9) (Member Talkin concurring) (Minerals Management Service) (proposals requiring 24-hour advance notice of a drug test found to be nonnegotiable). The Agency is only required to notify the Union of random selection sessions. There is no requirement in the proposal that random selection sessions must occur at any specific time prior to the actual testing of employees selected during the sessions. The Agency states that in the interest of security, random selection sessions will not be scheduled at fixed intervals, but rather at irregular unannounced, intervals throughout the year. The Agency also states that the lists generated in the random selection sessions will be nationwide.

Thus, if employees were made aware of the notice to the Union concerning a random selection session, they would only know that testing of the employees selected in the upcoming session would not occur for at least 10 days. However, because random selection sessions will be scheduled at irregular unannounced intervals and would involve Agency employees nationwide, employees would not know which employees would be selected during the upcoming session or which had already been selected in a previous session. The Agency has not identified any situation in which notice to the Union of a random selection session would result in notice to particular employees that they will tested at a particular time. In fact, the notice received by the employees as a result of sections A and C is no more than the notice they receive by virtue of the existence of a random drug testing program. That is, notice to the Union would merely indicate that testing of employees may occur somewhere in the Agency at anytime. With respect to the first random selection session, notice to the Union also would not interfere with the Agency's rights because section 4(a) of Executive Order 12564 mandates that the Agency provide employees 60 days' notice of the implementation of its drug testing program. The Agency has the discretion to schedule the first session during the 60-day notice period and generate several lists of employees to be tested in any manner it deems necessary to protect the randomness of its drug testing program.

We find that the notice requirement in sections A and C preserves the Agency's ability to schedule drug testing of employees in a manner that is not "destructive of the element of surprise required to give random testing its maximum deterrent and detection effect." Agency's Statement at 50. Therefore, we conclude the notice requirement does not interfere with the Agency's right under section 7106(a)(1) to conduct random drug testing. Compare American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068 (1990) (Proposal 4) (Member Talkin dissenting) (proposal requiring the agency to provide specified information to employees 60 days in advance of the date on which they will be tested for illegal drugs directly interfered with agency's right to determine its internal security practices), petition for review filed as to other matters sub nom. U.S. Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991).

We note that the Agency does not specifically address whether, by providing that the Union be given the lists of employees selected for testing in a random selection session "not later than sixty days from the date the list was generated," subsection C.7 would directly interfere with some aspect of the Agency's internal security plan. As to when the Agency will conduct drug tests after random selection sessions, the Agency states that "testing will probably follow closely after selections are made." Agency's Statement, Exhibit A at 7. In light of the Agency's statement and in the absence of an allegation that subsection C.7 interferes with some aspect of the Agency's internal security plan, we presume that the Agency does not dispute that subsection C.7 can be implemented consistent with the Agency's plan for randomly testing employees for drug use. Because the Agency does not specifically allege that the 60-day disclosure requirement in subsection C.7 compromises the Agency's internal security, we find that there is no basis for the Authority to conclude that subsection C.7 directly interferes with the Agency's exercise of its rights to determine the Agency's internal security practices.

4. Section B--Laboratory Inspections

First, we find that the record is sufficient for us to determine the meaning and effect of section B of Proposal 4. Section B provides the Union opportunities to inspect the laboratory with which the Agency has contracted for the performance of drug testing analyses on bargaining unit employees' urine samples. Therefore, we reject the Agency's contention that section B should be dismissed because it "merely provides for inspections for the sake of inspections, . . . [and] is too vague to evaluate." Agency Statement at 56.

(a) Conditions of Employment

We conclude that section B of Proposal 4 concerns the conditions of employment of bargaining unit employees. In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. United States Department of Health and Human Services, Social Security Administration, Region X, Seattle, Washington, 37 FLRA 880, 886 (1990).

Section B addresses the Agency's program to test bargaining unit employees for illegal drugs. It provides the Union opportunities to inspect the laboratory with which the Agency has contracted for the performance of drug testing analyses on bargaining unit employees' urine samples. The laboratory referenced in section B will determine whether a bargaining unit employee's test for illegal drug use is positive or negative. The results of the laboratory's analyses will be submitted to the Agency and will have a direct bearing on matters affecting employees' employment relationship, including providing potential grounds for disciplinary action. Therefore, we find that there is a direct connection between the subject matter of the proposal and the work situation or employment relationship of bargaining unit employees. We conclude that section B of Proposal 4 concerns a matter pertaining to the conditions of employment of bargaining unit employees. See also Rock Island I, 30 FLRA at 1074-75.

(b) Contracting Out

The Agency's contends that section B directly interferes with the Agency's right to make determinations with respect to contracting out under section 7106(a)(2)(B) of the Statute. The Agency states that section B "would clearly require the [Agency] to attempt to modify its existing contract to provide for union 'inspections,['] and by implication seek to cancel that contract and solicit bids from substitute contractors with union visitation rights as part of the contract requirements." Agency's Statement at 54. We find that the Agency's interpretation of section B is not reasonable given the wording of section B and the Union's statement of intent.

The wording of section B merely provides that Union representatives will be authorized to make on-site inspections of the laboratories contracted by the Agency to perform drug testing analyses. Section B does not explicitly or implicitly require the Agency to modify an existing agreement with a contracting laboratory to allow the Union to make an on-site inspection of the laboratory. Further, the Agency has provided no evidence in the record to show that there exists a contract which would have to be modified if section B were agreed to by the parties. The Agency has failed to show that section B directly interferes with the Agency's relationship with a contracting laboratory or directly interferes with its right to contract out in any other way. We find no support in the record for the Agency's contention that section B would require the Agency to cancel its contract with the laboratory and solicit bids from substitute contractors with union visitation rights as part of the contract requirements. Therefore, we reject those arguments. Compare Rock Island I, 30 FLRA at 1063 (proposal requiring the agency to contract out drug testing work only to certified or qualified test personnel imposed a substantive limitation on management's right to contract out its drug testing work and thus directly interfered with the agency's right to contract out work under section 7106(a)(2)(B)).

We conclude that the Agency has failed to establish that, by providing for on-site inspections of drug testing laboratories by Union officials, section B directly interferes with the Agency's right to make determinations with respect to contracting out under section 7106(a)(2)(B) of the Statute. Because we find that section B does not directly interfere with management's right to contract out, we do not reach the Union's claim that section B constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

(c) Internal Security

The Agency contends that section B interferes with management's right to determine internal security practices under section 7106(a)(1) of the Statute. The Agency states that "the employer's right to determine its internal security practices reserved by section 7106(a)[(]1) of the Statute would extend to policing the contractor's performance with regard to adherence to the [final] Guidelines." Agency's Statement at 55. Essentially, the Agency argues that inspection of the drug testing laboratory is an exercise of the Agency's right to determine internal security practices and "what the Union proposes here would clearly reflect the exercise of that management right." Id. at 56.

Under the final Guidelines, on-site laboratory inspections relating to the granting or maintaining of certification are performed by qualified inspectors designated by HHS. See Section 3.2(b) and 3.20 of the final Guidelines, at 53 Fed. Reg. 11986, 11989 (1988). The final Guidelines do not establish a right for either agency officials or union representatives to participate in inspections incident to the certification of laboratories, nor do they preclude agency officials or union representatives from participating in those inspections. See National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA 174, 179-80 (1991) (Forest Service), petition for review filed sub nom. United States Department of Agriculture, Forest Service v. FLRA, No. 91-1275 (D.C. Cir. June 10, 1991). Moreover, the final Guidelines do not prevent agencies from reaching an agreement with the laboratory that agency officials may attend inspections conducted by the qualified inspectors or conduct any other types of inspections that are in accordance with the final Guidelines. See id.

In Forest Service, we held to be negotiable a proposal providing that the union may designate a representative as an observer to participate in an on-site inspection of a drug testing laboratory whenever agency officials participate in that inspection. We found that the proposal would not prevent HHS from conducting the on-site inspections by qualified inspectors provided for under section 3.20 of the final Guidelines. Moreover, because the final Guidelines do not prohibit agency officials or union representatives from participating in those inspections, we found that the proposal did not require something that is precluded by the final Guidelines by allowing a Union representative to participate only where Agency officials participate. We also found that the final Guidelines permit agencies and laboratories to agree that a Union representative would also be allowed to accompany the Agency officials as an observer in on-site laboratory inspections and that such an agreement is not precluded by section 3.20 of the final Guidelines.

Section B of Proposal 4 in this case provides for quarterly on-site inspections by Union officials of the laboratory, facilities, and procedures of the contractor selected by the Agency to perform drug testing analyses. Like the proposal in Forest Service, section B would not prevent HHS from conducting the on-site inspections by qualified inspectors provided for under section 3.20 of the final Guidelines. Likewise, inasmuch as the inspections proposed in section B are not intended as substitutes for HHS' inspections for laboratory certification, the Agency's argument that the Union officials are not qualified to conduct laboratory certification inspections is not relevant and, therefore, is rejected.

Also, to the extent that section B may be interpreted to allow independent laboratory inspections by Union officials, we find that the Agency has not cited any provision of law, rule, or regulation that prevents the parties from agreeing to independent laboratory inspections by Union officials. As stated above, sections 3.2(b) and 3.20 of the final Guidelines, governing the certification of drug testing laboratories, specifically provide for on-site inspections of laboratories and do not preclude the participation of union officials. Moreover, HHS recognized that laboratories "may be willing to provide escorted tours to union officials to illustrate the quality of their processes." 53 Fed. Reg. at 11,977 (commentary to the final Guidelines). See also Section 2.4(a)(1) of the final Guidelines (allowing access to drug testing laboratories by personnel authorized to conduct inspections on behalf of Federal agencies for which the laboratory is engaged in urine testing and "escorted" access to laboratories by "authorized visitors"). Thus, the final Guidelines do not provide that Union officials may inspect laboratories only as observers on HHS inspections or only with Agency officials present. Rather, under the final Guidelines, laboratories may provide union officials an opportunity to tour the laboratory independent of HHS inspections and without agency officials.

We find that the Agency has not demonstrated that, by providing for laboratory inspections by Union officials, section B is inconsistent with any law, rule, or regulation. Therefore, consistent with Forest Service, we conclude that section B of Proposal 4 is negotiable.

VI. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposal 1, section C of Proposal 3, section C, subsections 4-7 of Proposal 4, and Proposal 6.(2) The petition for review is dismissed as to section A and section C, subsections 1-3 of Proposal 4.

 

 




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