42:0730(49)NG - - NAGE, Federal Union of Scientists and Engineers, Local R1-144 and Navy, Naval Underwater Systems Center, Newport, RI - - 1991 FLRAdec NG - - v42 p730
[ v42 p730 ]
42:0730(49)NG
The decision of the Authority follows:
42 FLRA No. 49
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of eleven proposals regarding drug testing.
Proposal 1 permits employees who believe that their constitutional rights are being violated to refuse to enter or remain in testing designated positions (TDPs) and requires management to provide those employees with an opportunity to transfer from TDPs to non-TDPs. We find that the proposal is nonnegotiable because it excessively interferes with management's rights to assign employees under section 7106(a)(2)(A) and to select candidates from any appropriate source to fill a vacant position under section 7106(a)(2)(C) of the Statute.
Proposal 2 requires the Agency, at the request of employees who believe that their constitutional rights are being violated by the imposition of the Agency's drug testing program, to reduce the security clearances of those employees to a level just below the level of the TDPs to which they have been assigned. Proposal 2 excessively interferes with management's rights to assign employees to positions under section 7106(a)(2)(A) and to fill positions by selecting candidates from any appropriate source under section 7106(a)(2)(C) of the Statute and, therefore, is nonnegotiable.
Proposal 3 provides that if an employee has been randomly tested, that employee's name would be removed from the group of employees subject to random testing for 1 year or until the pool of employees in TDPs is exhausted. We find that the proposal is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Proposal 4 applies to contract employees who work with Agency employees in TDPs and who perform the same or similar work as the employees in TDPs. The proposal requires such contract employees to be subjected to drug testing procedures similar to those used by the Agency. We find that Proposal 4 does not concern a condition of employment and, therefore, is nonnegotiable.
The first sentence of Proposal 5 provides that if an employee being tested is not able to provide a sample during the shift, the employee will not be required to remain after the shift to provide a sample. We find that the first sentence of Proposal 5 is inconsistent with the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS), 53 Fed. Reg. 11979-89 (1988) (final Guidelines), which are Government-wide regulations. Therefore, the first sentence of Proposal 5 is nonnegotiable under section 7117(a)(1) of the Statute.
The second sentence of Proposal 5 provides that employees being tested shall not be denied their normal lunch routine. We find that the second sentence of Proposal 5 is negotiable.
The first sentence of Proposal 6 allows employees a choice of overtime or compensatory time if they are kept beyond scheduled work hours. We find that this sentence is negotiable under section 7117(a)(1) of the Statute because it is consistent with applicable Government-wide regulations.
The second sentence of Proposal 6 requires the Agency to provide transportation for employees from work to home if drug tests require them to remain beyond their scheduled work hours. This sentence conflicts with 41 C.F.R. § 301-2.3(e), a Government-wide regulation and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.
The third sentence of Proposal 6 provides that employees undergoing non-random drug testing shall not be denied their normal lunch routine. This sentence is negotiable.
Proposal 7 provides that an employee may wash all containers and lids used in the collection process of the employee's urine sample. Proposal 7 is inconsistent with the final Guidelines and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.
Proposal 8 precludes management from frisking or searching employees as a part of the specimen collection process. Proposal 8 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 9 requires the Agency to assign only official observers to observe the collection process. We find that Proposal 9 is negotiable.
Proposals 10 and 11 require the Agency to provide training in the drug testing program to Union representatives and to unit employees. We conclude that Proposals 10 and 11 are negotiable.
II. Proposal 1
Employees who believe their constitutional rights are being violated may refuse to enter/remain in positions designated as Testing Designated Positions (TDP's). Such employee will be provided an opportunity to transfer to equivalent non-TDP positions.
A. Positions of the Parties
1. Agency
The Agency interprets Proposal 1 as requiring management to reassign employees who object to drug testing to positions that do not require drug testing. The Agency contends that the proposal directly interferes with management's rights to assign employees under section 7106(a)(A) and to select employees for appointment to positions under section 7106(a)(2)(C) of the Statue. The Agency also contends that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency relies on National Federation of Federal Employees, Local 178 and U.S. Army, Aberdeen Proving Ground, Installation Support Activity, 31 FLRA 226 (1988) (Aberdeen I) and National Federation of Federal Employees, Local 2058 and U.S. Army, Aberdeen Proving Ground, Installation Support Activity, 31 FLRA 241 (1988) (Aberdeen II) in support of its contentions.
2. Union
The Union explains that Proposal 1 is intended "to ensure that drug testing be performed in compliance with relevant statutory and constitutional law." Union Response at 1. The Union contends that proposals requiring that selection of employees for drug testing be made in accordance with law are negotiable. The Union explains that the proposal would allow employees to transfer from a TDP to a non-testing designated position as a remedy for a constitutional violation. The Union claims that the proposed remedy constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.
The Union states that the portion of the proposal that conditions a reassignment on employees' "belief" that their constitutional rights have been violated is the result of "poor draftsmanship." Id. at 1-2. The Union contends that the intent of the proposal is to require a transfer "only if the employee files an actual claim with the appropriate authority or court alleging that a constitutional violation does exist." Id. at 3. The Union states that the proposal would establish a "contractual Temporary Restraining Order Procedure[.]" Id.
B. Analysis and Conclusions
Proposal 1 permits employees to refuse to enter or remain in TDPs and requires management to provide those employees with an opportunity to transfer from TDPs to non-TDPs when those employees "believe" that their constitutional rights are being violated. By its terms, the proposal conditions the right of an employee to transfer on the employee's belief as to a constitutional violation of his or her rights, not on the fact that an employee filed a complaint in court or with another appropriate authority alleging a constitutional violation. Consequently, the Union's explanation of the proposal is inconsistent with the plain wording of that proposal. We will not adopt an explanation of a proposal that is inconsistent with the plain wording of that proposal. See National Association of Government Employees, Local R14-5 and Pueblo Depot Activity, Pueblo, Colorado, 31 FLRA 62, 67 (1988) (Pueblo Depot Activity). We interpret Proposal 1, therefore, as allowing employees to refuse to enter or remain in TDPs and requiring management to provide employees who refuse to be in TDPs an opportunity to transfer to non-TDPs when those employees believe that their constitutional rights are being violated as a result of the fact that they are subject to drug testing. Interpreted in this manner, we find that the proposal is nonnegotiable.
Proposals that require management, when an employee objects to drug testing, to grant the request of that employee for reassignment to a position that does not involve drug testing directly interfere with management's rights to assign employees under section 7106(a)(2)(A) and to select from any appropriate source to fill a vacant position under section 7106(a)(2)(C) of the Statute. See Aberdeen I, 31 FLRA at 231-33; Aberdeen II, 31 FLRA at 247-48. Proposal 1 is substantively similar to the proposals in Aberdeen I and Aberdeen II.
Proposal 1 requires management to grant employees an "opportunity" to transfer to equivalent non-TDPs when they object to entering or remaining in a TDP. By use of the term "opportunity," we interpret Proposal 1 to mean that if the position offered was acceptable to the employee, management would be required, as in Aberdeen I and Aberdeen II, to reassign the employee to that position. Consequently, consistent with Aberdeen I and Aberdeen II, we find that, by requiring a reassignment, Proposal 1 directly interferes with management's rights to assign employees to positions under section 7106(a)(2)(A) and to select candidates from any appropriate source to fill vacant positions under section 7106(a)(2)(C) of the Statute.
As Proposal 1 directly interferes with management's right to assign employees to positions under section 7106(a)(2)(A) and to select candidates from any appropriate source to fill vacant positions under section 7106(a)(2)(C), it is nonnegotiable unless, as claimed by the Union, it constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. To determine whether the proposal constitutes an appropriate arrangement we must determine whether the proposal is: (1) intended to be an arrangement for employees who are adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of a management right. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).
The proposals in Aberdeen I and Aberdeen II required management to grant employee requests for lateral reassignment to positions that were not subject to drug testing. The Authority determined that those proposals did not constitute arrangements for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) because the event that triggered the agency's obligations under the proposals was not the imposition of drug testing, but the employees' objections to being tested. Upon further consideration, we conclude that the Authority's determinations that the proposals in Aberdeen I and Aberdeen II did not constitute arrangements were based on a misreading of the meaning and effect of the proposals in those cases. We will no longer follow those decisions to the extent that they hold that proposals like those in Aberdeen I and Aberdeen II do not constitute arrangements within the meaning of section 7106(b)(3).
Specifically, the decisions in Aberdeen I and Aberdeen II are premised on the finding that the proposals were "an effort to require the [a]gency to accommodate employees' personal preferences" and the conclusion that "[t]he adverse effects which the proposal[s] [attempted] to ameliorate are those which stem from a choice made totally and completely by the employee, not directly from the exercise of the management right to require drug testing." Aberdeen I at 233. The Authority has consistently emphasized, however, that the imposition of drug testing could adversely affect employees because an employee whose urine specimen tests positive would be subject to certain personnel actions and those actions could affect the employee's reputation and future employment. See National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1064 (1988) (Rock Island I), remanded sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988) (Order), decision on remand, 33 FLRA 436 (1988) (Rock Island II), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground), decision on remand, 35 FLRA 936 (1990) (Rock Island III); American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1077-78 (1990) (Department of Education), reconsideration denied, 39 FLRA 1241 (1991), petition for review filed sub nom. United States Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991). We also recognize that the imposition of drug testing may adversely affect employees' personal privacy. See Department of Education, 38 FLRA at 1094-95. See also National Treasury Employees Union v. von Raab, 109 S. Ct. 1384, 1390 (1989); Section 4(c) of Executive Order No. 12564.
By its terms, Proposal 1 attempts to mitigate the adverse effects of the imposition of drug testing by affording employees the opportunity to transfer out of TDPs. We find, therefore, that because Proposal 1 is intended to prevent employees from being adversely affected by being subjected to the Agency's drug testing program, it is an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute. We note, in this connection, that because the proposals in Aberdeen I and Aberdeen II were interpreted as being intended to accommodate employees' objections to drug testing, the adverse effects of the imposition of drug testing were not considered. In the future, where section 7106(b)(3) of the Statute is at issue, we will consider proposals having the same substantive effect as the proposals in Aberdeen I and Aberdeen II to be proposed arrangements for employees adversely affected by the exercise of management's right under section 7106(a)(1) to determine its internal security practices through the imposition of drug testing.
The question thus becomes whether Proposal 1 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute or whether it excessively interferes with management's rights. In order to determine whether a proposal excessively interferes with a management right, we balance the competing practical needs of employees and managers as they are affected by the proposal. Kansas Army National Guard, 21 FLRA at 31-32. We find that Proposal 1 is not an appropriate arrangement.
Proposal 1 allows employees to refuse, on constitutional grounds, to enter or remain in a TDP and obligates the Agency to provide those employees with the opportunity for reassignment to an equivalent non-TDP. The proposal clearly benefits employees who believe that their constitutional rights are being violated by affording them an opportunity to become exempt from the drug testing program. However, based on our interpretation of the proposal as set forth above, that benefit is obtained by requiring management to reassign those employees to "equivalent" non-TDPs. The proposal, therefore, precludes management from placing or retaining in a TDP an employee who believes that his or her constitutional rights are being violated and from selecting the person who would fill a non-TDP because management would be required to fill that position by reassignment of such an employee, regardless of qualifications or, for example, considerations of workload.
We recognize that employees' personal convictions are important to them. On the other hand, if management were required, without exception, to accommodate employees' personal beliefs in determining assignments to positions, the effective and efficient operation of the Agency could be severely handicapped. In our view, the proposal imposes a significant and overly restrictive burden on management's ability to allocate its personnel resources. We find, therefore, that Proposal 1 excessively interferes with management's rights to assign employees to positions and to fill positions by selecting from any appropriate source. Therefore, the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute and is nonnegotiable.
III. Proposal 2
Employees who believe their constitutional rights are being violated may voluntarily have their security clearance reduced to a level just below that required to be in the TDP group.
A. Positions of the Parties
1. Agency
The Agency interprets the proposal as requiring management "to redetermine (so as to reduce) security clearances assigned to employees who object to being in random testing designated positions . . . and, consequently[,] to reassign that work which can no longer be performed by these employees to other employees and to reassign these employees to positions outside the TDP group or, in the alternative, to reduce the security clearance assigned to an employee and allow the employee to remain in the established position." Agency Statement at 2. The Agency contends that the proposal directly interferes with management's rights to determine its internal security practices under section 7106(a)(1), to assign work under section 7106(a)(2)(B), and to assign employees under section 7106(a)(2)(A) of the Statute.
Specifically, the Agency asserts that the establishment of a drug testing program constitutes an exercise of management's right to determine its internal security practices. Citing Secretary of the Navy Instruction (SECNAVINST) 12792.3, "Department of the Navy Drug-Free Workplace Program," the Agency contends that one purpose of the drug testing program is to ensure that employees who are entrusted with national defense secrets "are free of the possibility of coercion or influence of criminal elements." Id. at 3. According to the Agency, the use of illegal drugs by personnel in sensitive or critical positions could "expose extremely sensitive intelligence information." Id. The Agency concludes that, by requiring management to reduce the security clearance of an employee in a TDP, the proposal would preclude the Agency from randomly testing the employee and would thereby directly interfere with management's right to determine its internal security practices.
In addition, the Agency asserts that because the proposal would require management to reassign employees to non-TDPs after their security clearance is reduced, the proposal directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. Moreover, because employees in TDPs whose security clearances have been reduced would no longer be able to perform the work of those positions, the Agency claims that management would be required to reassign the work of those positions. The Agency asserts, therefore, that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B).
The Agency also contends that the proposal is nonnegotiable under section 7117(a)(1) of the Statute because it is "inconsistent with national security law." Agency Statement at 2. Citing Department of the Navy v. Egan, 108 S. Ct. 818 (1988) (Egan), the Agency contends that no employee has a right to a security clearance and, therefore, no employee should have a right to have his or her clearance reduced. The Agency argues that management has broad discretion to protect classified information and that its discretion "includes the determination of who has access to [that information] and any modifications to access." Id. at 5. The Agency concludes that, because the proposal is inconsistent with these principles of national security law, the proposal is inconsistent with law within the meaning of section 7117(a)(1) of the Statute.
2. Union
The Union explains that Proposal 2, like Proposal 1, is intended "to ensure that no procedure involved in drug testing TDP's is in violation of constitutional or statutory law." Union Response at 2. According to the Union, the proposal allows "a remedy of reduction of security clearance below that required of a TDP if an actual constitutional violation exists." Id. The Union contends that the remedy afforded by the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union notes that while the proposal "appears to require only a subjective standard" of employee "belief" that a constitutional violation exists, the "actual intent" of the proposal is to require a reduction in security clearance and a transfer "only if the employee files an actual claim with the appropriate authority or court alleging that a constitutional violation does exist." Id. at 2, 3. The Union states that the proposal would establish a "contractual Temporary Restraining Order Procedure[.]" Id. at 3.
B. Analysis and Conclusions
By its terms, Proposal 2 would require the Agency, at the request of employees who believe that their constitutional rights are being violated by the imposition of the Agency's drug testing program, to reduce the security clearances of those employees below the level of the TDPs to which they have been assigned. In the absence of any indication in the record to the contrary, we interpret Proposal 2 as applying to those employees who have been assigned to TDPs for which a specified security clearance is a precondition of assignment. Because Proposal 2 would require that, as to employees who have constitutional objections to drug testing, management reduce the security clearances of those employees below the level specified for the TDPs to which they have been assigned, the effect of the proposal is to disqualify employees for assignment to those TDPs. See Agency Statement at 4. See also Egan, 108 S. Ct. at 824; American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 39 FLRA 1197, 1205 (1991).
For the reasons discussed in connection with our disposition of Proposal 1, we conclude that the Union's interpretation of Proposal 2 as requiring a reduction in security clearance and a transfer only if the employee files a claim challenging the constitutionality of the drug testing program is inconsistent with the plain wording of the proposal. Consequently, as with Proposal 1, we decline to adopt the Union's interpretation.
Because Proposal 2 requires management to reduce the security clearances of employees in TDPs who believe that their constitutional rights are being violated, the proposal has the effect of disqualifying those employees for assignment to those TDPs. Although Proposal 2 is silent as to what will be done for those employees who have lost the security clearance required for their TDPs, the Union explains that implementation of the proposal will involve the "transfer" of those employees. Union Response at 3. The Agency also interprets the proposal as requiring management to reassign to non-TDPs those employees whose security clearances have been reduced. Agency Statement at 2. Because the Union's interpretation is consistent with the wording of the proposal, we will interpret Proposal 2 as requiring management to reassign employees who, at their own request, have had their security clearances reduced.
Proposals that preclude management from assigning employees to particular positions directly interfere with management's right to assign employees. See West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1010 (1990) (West Point Elementary School). Moreover, "[a] proposal that conditions the exercise of a management right on employee choice directly interferes with the exercise of that right." See Federal Employees Metal Trades Council of Charleston and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 36 FLRA 401, 405 (1990) (Charleston Naval Shipyard). Proposal 2 would require management, at the request of employees assigned to TDPs and based upon their objections to the constitutionality of drug testing, to reduce those employees' security clearances, thus precluding the continuation of their existing assignments to those TDPs. Consequently, we find, consistent with Charleston Naval Shipyard, that Proposal 2 directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute.
To the extent that Proposal 2 requires management to transfer employees whose security clearances have been voluntarily reduced because of their beliefs as to the unconstitutionality of the Agency's drug testing program to non-TDPs, we find, for the reasons discussed in connection with Proposal 1 and consistent with Aberdeen I and Aberdeen II, that Proposal 2 directly interferes with management's rights to assign employees to positions under section 7106(a)(2)(A) and to fill positions by selecting candidates from any appropriate source under section 7106(a)(2)(C) of the Statute.
The proposal is nonnegotiable, therefore, unless, as claimed by the Union, it constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
Like Proposal 1, Proposal 2 would benefit employees who believe that the Agency's drug testing program is unconstitutional by precluding management from retaining those employees in the TDPs to which they have been assigned and requiring that they be reassigned to non-TDPs. As with Proposal 1, however, Proposal 2 requires the reassignment of employees from TDPs to non-TDPs without regard, for example, to considerations of workload. Consequently, for the reasons stated in our analysis of Proposal 1, we find that Proposal 2 excessively interferes with management's right to assign employees to positions under section 7106(a)(2)(A) and to fill vacant positions by selecting candidates from any appropriate source under section 7106(a)(2)(C) of the Statute. Therefore, we conclude that Proposal 2 is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
Because we find that Proposal 2 directly and excessively interferes with management's rights to assign employees to positions under section 7106(a)(2)(A) and to select candidates from any appropriate source to fill vacant positions under section 7106(a)(2)(C), we find it unnecessary to address the Agency's claim that the proposal is nonnegotiable under section 7106(a)(1) of the Statute because it directly and excessively interferes with management's right to determine its internal security practices.
Accordingly, we conclude that Proposal 2 is nonnegotiable.
IV. Proposal 3
The requirement quota for the random selection from the TDP group will be made one name at a time. The names will not be returned to the TDP pool until one year's time has passed. If the quota is such that it is larger than the remaining TDP pool then all names will be returned to the pool at the time and then the selection process begun.
A. Positions of the Parties
1. Agency
The Agency interprets Proposal 3 as limiting random drug testing to one test a year for each employee in a TDP. The Agency contends that the proposal directly interferes with management's right to determine its internal security practices. In particular, citing National Treasury Employees Union and U.S. Customs Service, 31 FLRA 118, 121 (1988), the Agency asserts that management's decision to adopt a drug testing plan includes the decision as to the manner in which that plan will be implemented. Noting that Civilian Personnel Instruction (CPI) 792-3, "Department of the Navy Drug-Free Workplace Program," reserves to the Secretary of the Navy the right to increase or decrease the frequency of random testing to "optimize overall deterrence," the Agency argues that, by limiting random testing to once a year for each employee, the proposal precludes the Agency "from achieving its stated deterrence goal." Agency Statement at 6. The Agency concludes that, because the proposal interferes with the purpose for which the Agency adopted a drug testing plan, the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute and is, therefore, nonnegotiable.
2. Union
The Union states that its "intent in the random selection procedure is to test all TDP employees at least once/year." Union Petition at 2. The Union "wants its unit members who are occasional users to know they will be selected and if they cannot give up drugs on their own to seek help." Id. at 2-3. The Union contends that the proposal "will send a message to Union members that testing will be randomly and efficiently performed." Union Response at 3.
B. Analysis and Conclusions
Once an employee has been randomly tested, Proposal 3 removes that employee from the group of employees subject to random testing for 1 year or until the pool of employees in TDPs is exhausted. The proposal limits the number of times that an employee in a TDP may be randomly tested during the year following the date on which he or she is randomly tested. We find that the proposal is nonnegotiable.
Proposals that limit the number of times during a year that an employee may be subjected to a random drug test directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute because such proposals restrict management's ability to test employees for illegal drug use on a random basis. See Graphics Communications International Union, Local 98-L and U.S. Department of Defense, Defense Mapping Agency, Hydrographic Topographic Command, Washington, D.C., 39 FLRA 437, 442 (1991) (Hydrographic Topographic Command) (Member Talkin concurring) (proposals that precluded employees from being subjected to further random testing during a calendar year once they had tested negative held to directly and excessively interfere with management's right to determine its internal security practices under section 7106(a)(1)).
Because Proposal 3 would preclude employees, once they have been randomly tested, from being subject to random testing again for 1 year or until the pool of employees is exhausted, we find, consistent with Hydrographic Topographic Command, that Proposal 3 directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See also International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1530 (1991) (Bureau of Reclamation).
Therefore, we conclude that Proposal 3 is nonnegotiable.
V. Proposal 4
The [Agency] shall require all contractors coming onto [Agency] grounds, who are performing work the same as or similar to that which would be designated TDP[,] to test their own employees following procedures similar to the testing of [Agency] employees by making the requirement a condition of the contract.
A. Positions of the Parties
1. Agency
The Agency notes that the Union intends the proposal to protect unit members "and not let them work with or be in the proximity of drug addicted persons who could physically or mentally hurt its unit members." Agency Statement at 7. The Agency interprets Proposal 4 as requiring management to establish and impose a random drug testing policy on private-sector contractors doing business with the Agency. The Agency contends that the proposal is nonnegotiable because it: (1) does not concern a condition of employment of bargaining unit employees; (2) conflicts with a Department of Defense interim rule, which is a Government-wide regulation; and (3) conflicts with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
The Agency asserts that "a proposal which is principally focused on nonbargaining unit positions or employees does not directly affect the work situation or employment relationship of bargaining unit employees." Agency Statement at 7. The Agency contends that Proposal 4 is focused not on unit employees, but instead "concerns all individuals under contract with the [A]gency who come onto the [A]gency's premises, regardless of whether they work at the [A]gency's worksite or elsewhere." Id. Accordingly, the Agency argues that the proposal does not pertain to bargaining unit employees. Id.
The Agency also contends that Proposal 4 "does not create any rights for unit employees as employees of the [A]gency nor confer any benefits which employees would receive by virtue of their employment by the [A]gency." Id. at 8. Moreover, the Agency argues, the proposal "does not serve to physically or mentally protect unit employees from drug addicted contractors . . . because the proposal applies even to contractors who merely come onto the [A]gency's premises, regardless of whether they work at the [A]gency or work with unit employees." Id. The Agency concludes, therefore, that the proposal does not concern a matter affecting the conditions of employment of unit employees.
The Agency also claims that Proposal 4 is inconsistent with 48 C.F.R. § 252.223.7500, which, it argues, is a Government-wide regulation. That regulation requires Federal contractors to "establish programs that provide for random testing for the use of illegal drugs by employees in sensitive positions and, by employees not in sensitive positions, if the contracting officer determines testing is necessary for reasons of national security or protection of the health and safety of those using or affected by a product or performance of the contract." Agency Statement at 8. The Agency contends that this regulation "does not apply to subcontracts and places the responsibility of the extent and criteria of random drug testing on the contractor." Id. The Agency also notes that the regulation provides that drug testing programs established by contractors "shall not apply to the extent they are inconsistent with state or local law, or with an existing collective bargaining agreement; provided that with respect to the latter, the contractor agrees that those issues that are in conflict will be a subject of negotiation at the next collective bargaining session." Id. The Agency contends that the proposal is inconsistent with the regulation, which places "implementation responsibilities on the contractor and not on the [G]overnment." Id. at 9.
Finally, the Agency contends that the regulation establishing the Agency's drug testing program for its own employees and the Department of Defense regulation requiring a drug testing program for contractors "act as deterrents against illegal drug use" and, thus, constitute the Agency's plans to minimize or eliminate the risks to Government property, to prevent disclosure of information and disruption of the Agency's activities. Id. The Agency argues that, because the proposal requires management to establish and impose a drug testing policy on private sector contractors, the proposal "directly impinges on" management's right to determine its internal security practices under section 7106(a)(1). Id.
2. Union
The Union states that the intent of Proposal 4 is to protect unit employees by preventing them from working with or being near persons who use illegal drugs and could "physically or mentally hurt" them. Petition for Review at 3. According to the Union, the proposal requires the Agency to test the employees of private sector contractors who work with unit employees in TDPs for the use of illegal drugs. The Union contends that the proposal is an appropriate arrangement for unit employees in TDPs who would be adversely affected if contract employees performing the same duties were not drug tested. The Union argues that unit employees would be at risk if they have to work with private sector employees who have substance abuse problems and that the proposal would minimize that risk by requiring drug testing for all personnel regardless of who their immediate employer is. The Union concludes that the proposal would ensure the safety of the workplace.
B. Analysis and Conclusions
For the following reasons, we conclude that Proposal 4 does not vitally affect unit employees' conditions of employment and, therefore, does not constitute a condition of employment for unit employees. Accordingly, Proposal 4 is nonnegotiable. Moreover, even if Proposal 4 constituted a condition of employment, Proposal 4 would nevertheless be nonnegotiable for the reasons stated below.
1. Proposal 4 Does Not Concern a Condition of Employment
The Agency contends that Proposal 4 is nonnegotiable because it concerns solely the working conditions of nonunit employees and, therefore, does not involve conditions of employment of unit employees within the meaning of section 7103(a)(14) of the Statute. We disagree. The fact that a proposal has an effect on the working conditions of nonunit employees is not in and of itself determinative of the negotiability of the proposal. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky, 40 FLRA 902, 908 (1991), petition for review filed sub nom. U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky v. FLRA, No. 91-1330 (D.C. Cir. July 16, 1991) (proposal requiring agency to provide training to supervisors who review employees' security updates held to "vitally affect" conditions of employment of unit employees).
Rather, such a proposal is negotiable under the Statute if it (1) vitally affects the working conditions of unit employees and (2) is consistent with applicable law, including the management rights provisions of section 7106 of the Statute, and regulations. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA 1169, 1187 (1991) (Defense Mapping Agency, Louisville, Kentucky), petition for review filed sub nom. U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky v. FLRA, No. 91-1217 (D.C. Cir. May 10, 1991); American Federation of Government Employees, Local 32, AFL-CIO, and Office of Personnel Management, 33 FLRA 335, 338 (1988), enf'd sub nom. U.S. Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990).
A proposal having an effect on nonunit employees will be found to vitally affect the conditions of employment of unit employees if the effect of that proposal upon unit employees' conditions of employment is "significant and material, as opposed to indirect or incidental." Defense Mapping Agency, Louisville, Kentucky, 39 FLRA at 1187, quoting International Association of Machinists and Aerospace Workers, Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina, 38 FLRA 1451, 1455 (1991), petition for review filed sub nom. U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, No. 91-1123 (D.C. Cir. Mar. 12, 1991).
The record in this case does not demonstrate that requiring the Agency to drug test contractors' employees using procedures similar to those for unit employees would have a significant and material effect on the working conditions of unit employees. The proposal does not direct the Agency to take any actions with respect to unit employees. Rather, it applies to contract employees who perform the same or similar work as unit employees in TDPs. Moreover, consistent with its plain wording, the proposal could be read, as claimed by the Agency, to include all such individuals "who come onto the [A]gency's premises, regardless of whether they work at the [A]gency's worksite or elsewhere." Agency's Statement of Position at 7. The record does not contain any information as to the nature or duration of contact between bargaining unit employees in TDPs and contract employees who perform the same or similar work. Based on the record before us, it has not been shown how the proposal has any more than, at best, an indirect or incidental effect on unit employees' working conditions. Accordingly, we find that Proposal 4 does not vitally affect conditions of employment of bargaining unit employees. Compare Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 834-35 (1991) (Patent and Trademark Office), petition for review filed sub nom. Department of Commerce, Patent and Trademark Office v. FLRA, No. 91-1179 (D.C. Cir. April 17, 1991) (proposal which required agency, among other things, to train supervisors in evaluation of unit employees' work found to concern matters that vitally affect the conditions of employment of unit employees under section 7103(a)(14) of the Statute).
Consequently, as Proposal 4 does not vitally affect the conditions of employment of unit employees, it is nonnegotiable.
2. Even If Proposal 4 Concerned a Condition of Employment, Proposal 4 Would Be Nonnegotiable
Even assuming, however, that Proposal 4 were found to concern a matter which vitally affects the conditions of employment of unit employees, it would nevertheless be nonnegotiable. We note at the outset that the proposal is not nonnegotiable because it is inconsistent with a Government-wide regulation under section 7117(a)(1) of the Statute. The regulation relied on by the Agency as a Government-wide regulation, is not a Government-wide regulation within the meaning of section 7117(a) of the Statute, but is an Agency-wide regulation which does not bar negotiation under section 7117(a)(1). Rather, Proposal 4 is nonnegotiable because it excessively interferes with management's right to determine its internal security practices under section 7106(a) of the Statute, and, therefore, does not constitute an appropriate arrangement within the meaning of section 7106(b)(3).
a. The Regulation Relied on by the Agency Is Not a Government-wide Regulation Within the Meaning of Section 7117(a)
We find that 48 C.F.R. § 252.223.7500, relied on by the Agency, is not a Government-wide regulation within the meaning of section 7117(a) of the Statute. The general Federal Acquisition Regulations (FAR) are codified at Chapter 1 of Title 48, Code of Federal Regulations. Subsequent chapters are reserved for agency acquisition regulations that implement or supplement the FAR. The FAR in Chapter 1 and the agency regulations in Chapter 2 to 49 comprise the FAR System. 48 C.F.R. § 1.104-1(b); 48 C.F.R. Subpart 1.3--Agency Acquisition Regulations; American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA 493, 530-31 (1987). Because § 252.223.7500 is part of Chapter 2, which is reserved for Department of Defense regulations supplementing the FAR, it is an Agency regulation. 48 C.F.R. § 252.200. Therefore, 48 C.F.R. § 252.223.7500 does not constitute a Government-wide regulation within the meaning of section 7117(a) of the Statute.
We note that the Agency asserts that 48 C.F.R. § 252.223.7500 was published in the Federal Register on January 31, 1989, as an interim regulation. The section relied on by the Agency was actually published in the Federal Register on Sept. 28, 1988. 53 Fed. Reg. 37763-65, Sept. 28, 1988; 48 C.F.R. § 252.223.7500. A review of the January 31, 1989, Federal Register shows that FAR interim regulations on a Drug-Free Workplace were published on that date at 54 Fed. Reg. 4968. Those regulations became final on May 25, 1990, 55 Fed. Reg. 20707. However, the FAR provisions on a drug-free workplace do not address contractors' use of drug testing as a means to achieve a drug-free workplace. See 48 C.F.R. Ch. 1, Subpart 23.5--Drug-Free Workplace. The Agency has not demonstrated any conflict between those regulations and Proposal 4, and none is apparent to us.
Because the regulation relied on by the Agency does not constitute a Government-wide regulation within the meaning of section 7117(a) of the Statute, and no other Government-wide regulation is raised as a bar, we reject the Agency's contention that Proposal 4 is inconsistent with Government-wide regulation.
b. Proposal 4 Directly Interferes With Management's Right Under Section 7106(a)(1) to Determine Its Internal Security Practices
The Agency claims that Proposal 4 directly interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. We agree.
An agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine the policies and take actions which are part of its plan to secure or safeguard its personnel, its physical property, and its operations. See National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706 (1990) (EPA); National Federation of Federal Employees, Local 15 and U.S. Army Armament, Munitions and Chemical Command, Rock Island Arsenal, Rock Island, Illinois, 30 FLRA 472, 475 (1987); National Association of Government Employees, SEIU, Local R7-51 and Department of the Navy, Navy Public Works Center, Great Lakes, Illinois, 30 FLRA 415, 417 (1987).
Proposal 4 requires that the procedures for drug testing of certain contract employees be the same as the procedures applicable to bargaining unit employees in TDPs. The proposal establishes a standard governing the actions that the Agency will take and the procedures it will adopt to safeguard the personnel, the property, and the operations at Agency workplaces. Proposal 4 precludes the Agency from using other measures governing drug use by contractors' employees to ensure a drug-free workplace. In particular, it precludes the Agency from requiring contractors to use other procedures to ensure a drug-free workforce, even if those measures were more stringent than those applied by the Agency. In essence, Proposal 4 establishes a substantive limitation on management's determination of the internal security practices that it will employ at Agency workplaces where Agency and contractors' employees perform the same or similar work.
Proposals which establish substantive criteria governing the exercise of a management right directly interfere with that right. See West Point Elementary School, 34 FLRA 1008, 1010 (1990); Rock Island I, 30 FLRA 1046, 1059-60 (1988); American Federation of Government Employees, AFL-CIO, Local 1501 and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 24 FLRA 470, 472-73 (1986). In Defense Logistics Council of American Federation of Government Employees Locals v. FLRA, 810 F.2d 234 (D.C. Cir. 1987) (Defense Logistics Council), the court upheld the Authority's determination that a proposal establishing standards governing the suspension of driving privileges for driving while intoxicated were nonnegotiable under section 7106(a)(1). The court stated as follows:
Each of these provisions seeks to modify the criteria by which the [a]gency determines suspensions. Each is clearly substantive. . . . Under the "direct interference" test, therefore, these [u]nion proposals are nonnegotiable since they directly interfere with management's right to determine its internal security practices. . . . The language of these proposals would substantively alter the decisionmaking criteria used by management in implementing the Directive.
Defense Logistics Council, 810 F.2d at 240 (citations omitted).
Moreover, it is not necessary that a proposal dictate the specific action that an agency must take in order for that proposal to constitute a substantive limitation on the exercise of a management right. A general criterion may also constitute a substantive limitation on that right. See American Federation of Government Employees, Local 3748 v. FLRA, 797 F.2d 612, 617-18 (D.C. Cir. 1986); National Treasury Employees Union v. FLRA, 767 F.2d 1315, 1317 (9th Cir. 1985). See also EPA, 36 FLRA at 627.
Even though Proposal 4 does not dictate the specific terms of the provision which management must include in agreements with outside contractors, it limits management's decision as to the measures it will institute to ensure a drug-free workplace, where both bargaining unit and contractors' employees work together. Accordingly, we conclude that Proposal 4 establishes a substantive criterion that directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See Rock Island I, 30 FLRA at 1060.
c. Proposal 4 Is Not an Appropriate Arrangement Under Section 7106(b)(3)
The Union claims that Proposal 4 constitutes an appropriate arrangement within the meaning of section 7106(b)(3). As noted above, to determine whether a proposal constitutes an appropriate arrangement, we must determine whether the proposal is (1) intended to be an arrangement for employees adversely affected by the exercise of a management right, and (2) appropriate because it does not excessively interfere with the exercise of management's right.
The Union contends that Proposal 4 is intended to protect employees from "private sector workers who have substance abuse problems [which] would not be detected and would put drug free [U]nion workers at risk." Union's Response at 5. In light of this contention, we conclude that the proposal is intended to address the adverse effects of the internal security practices that the Agency has employed at its facilities. Therefore, it is intended to be an arrangement within the meaning of section 7106(b)(3).
The next question is whether Proposal 4 excessively interferes with management's right to determine its internal security practices so as not to constitute an appropriate arrangement. As noted above, in determining whether a proposal excessively interferes with a management right, we will weigh "the competing practical needs of employees and managers" to determine whether the benefit to employees afforded by the proposal is greater than the burden placed by the proposal on the exercise of the management right or rights involved. Kansas Army National Guard, 21 FLRA at 31-34.
The Agency contends that Proposal 4 "directly impinges on management's right to establish its internal security practices." Agency's Statement of Position at 9. The Agency asserts that its regulations "constitute the [A]gency's plans which are intended to eliminate or minimize risks to [G]overnment property and prevent disclosure of information and disruption of the [A]gency's right to determine its internal security practices." Id.
The Union argues that Proposal 4 would eliminate the potential that private sector workers who have substance abuse problems would not be detected and would put bargaining unit employees at risk. The Union claims that Proposal 4 is an appropriate arrangement for rectifying this situation because it would require uniform testing of employees in TDPs regardless of who their immediate employer is. The Union asserts that Proposal 4 would ensure safety of the workplace through equitable drug testing procedures for TDPs and contractors' employees performing similar work, regardless of their employer.
We find that Proposal 4 excessively interferes with management's right to determine its internal security practices. Therefore, Proposal 4 does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
The proposal does not direct the Agency to take any actions with respect to unit employees. Rather, it applies to contract employees who perform the same or similar work as unit employees in TDPs, and would require the use of testing techniques similar to those used on unit employees, and would preclude the use of more stringent testing methods. As we stated above, the proposal could be read, as claimed by the Agency, to include all such individuals "who come onto the [A]gency's premises, regardless of whether they work at the [A]gency's worksite or elsewhere." Agency's Statement of Position at 7.
Moreover, the record does not contain any information as to the nature or duration of contact between bargaining unit employees in TDPs and contract employees who perform the same or similar work. The contact could be very limited, of short duration, or only at a significant distance between the employees. The record does not show how the contact would differ from contact with a visitor to the worksite. As such, the purported benefit of the proposal to employees is speculative at best compared to the burden on the Agency of requiring contractors to use similar drug testing procedures on their employees rather than other or more stringent procedures, and we conclude that Proposal 4 excessively interferes with management's right to determine its internal security practices.
Therefore, even if Proposal 4 were found to concern a condition of employment, we find that it would not constitute an appropriate arrangement within the meaning of section 7106(b)(3) and, therefore, would be nonnegotiable.
VI. Proposal 5
Persons in testing designated positions who are being tested under the random selection procedure, shall not be required to supply a sample outside of the employee's scheduled work hours. Any employee, who is required to remain under surveillance during his/her scheduled lunch period, shall not be denied his/her normal lunch routine.
A. Positions of the Parties
1. Agency
The Agency interprets the first sentence of the proposal to limit management's discretion to order an employee to undergo drug testing when the time required to collect a urine specimen for testing extends beyond the regular shift. The Agency asserts that the first sentence is nonnegotiable because it interferes with management's rights to assign work under section 7106(a)(2)(B) and to determine internal security practices under section 7106(a)(1) of the Statute. The Agency also asserts that the first sentence does not constitute an appropriate arrangement because there is no adverse effect on employees which results from the assignment to provide a drug sample outside an employee's regular work shift. The Agency argues that its policy providing for overtime pay or compensatory time mitigates any intrusion into an employee's personal time when an employee is assigned to stay beyond the shift to provide a urine sample for a drug test.
The Agency argues that "[t]he authority to order an employee to undergo a urine test is an assignment of work. See American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 31 FLRA 95, 99 (1988)." Agency's Statement of Position at 10. The Agency maintains that management's right to assign work includes the right to determine that certain work will be performed on overtime and that a proposal limiting management's authority to assign overtime work is inconsistent with the right to assign work. The Agency argues that Proposal 5 interferes with its right to assign work because it limits the Agency's discretion to determine the duration of work assignments according to Agency policy regarding the collection of urine samples for drug tests.
The Agency asserts that its right to determine its internal security practices under section 7106(a)(1) of the Statute includes the formulation of those policies and measures which are part of the Agency's plan to secure or protect its physical property against internal or external risks, to prevent improper or unauthorized disclosure of information, or to prevent the disruption of the Agency's activities. The Agency contends that an integral part of that decision is its policy requiring employees being tested to remain at the collection site within view of the drug program coordinator until they are ready to provide a sample.
The Agency contends that the second sentence of Proposal 5, which would require the Agency to release employees at the end of their work shift or during lunch breaks, interferes with the Agency's purposes for adopting a drug testing program so as to conflict with management's rights to determine internal security practices. The Agency asserts that allowing employees to leave would give them an opportunity to clear their systems of traces of drugs or to fail to return to provide the urine sample when scheduled.
2. Union
The Union states that Proposal 5 means that "unit personnel selected by random procedure are not criminals or drug abusers and shall not be required to remain after hours against their will if they cannot provide a urine specimen during their regularly scheduled hours." Union Petition at 4. The Union states that Proposal 5 provides that unit members shall be allowed to eat as they normally would even when required to provide specimens. The Union states that Proposal 5 ensures that "[t]he passing of a urine sample shall not be used to harass a person who has a problem in providing urine samples." Id.
The Union claims that Proposal 5 is negotiable under section 7106(b)(2) and (b)(3) of the Statute. The Union asserts that Proposal 5 is intended as a procedure to be observed when the Agency exercises its management rights by requiring a drug test. The Union claims that the first sentence of Proposal 5 is an appropriate arrangement for employees who would be adversely affected by requiring them to provide a sample outside of scheduled work hours. The Union asserts that the second sentence of Proposal 5 is a procedure to ensure that employees being tested are not deprived of their lunch breaks.
B. Analysis and Conclusions
We find that the first sentence of Proposal 5 is inconsistent with the final Guidelines. Because the first sentence of Proposal 5 is inconsistent with the final Guidelines, which are Government-wide regulations, it is nonnegotiable under section 7117(a)(1) of the Statute. We find that the second sentence of Proposal 5 is negotiable.
1. The First Sentence
The Union states that Proposal 5 means that an employee who cannot produce a urine sample will not be required to stay beyond the end of the shift to try to produce the required sample. Because the Union's explanation of the meaning of Proposal 5 is consistent with the wording of the proposal, we will adopt that interpretation for purposes of this decision. We find that, interpreted in this manner, the first sentence of Proposal 5 has the same effect as other proposals providing that an employee may leave the collection site if he or she is unable to provide a sample of sufficient volume. See American Federation of Government Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439, 1445-47 (1990)