43:0836(69)NG - - AFGE Local 446 and Interior, National Park Service, Blue Ridge Parkway, Asheville, NC - - 1991 FLRAdec NG - - v43 p836
[ v43 p836 ]
43:0836(69)NG
The decision of the Authority follows:
43 FLRA No. 69
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO
LOCAL 446
(Union)
and
U.S. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE, BLUE RIDGE PARKWAY
ASHEVILLE, NORTH CAROLINA
(Agency)
0-NG-1642
DECISION AND ORDER ON NEGOTIABILITY ISSUES
December 30, 1991
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of proposals relating to the implementation of the Agency's drug testing program.(2)
Proposal 1 provides that the Agency's drug testing program will be conducted in compliance with applicable laws, rules, regulations and the parties' agreement. We find that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 2B states that prior to deciding to test an employee for reasonable, articulable suspicion, the supervisor will document his or her suspicions. We find that the proposal is negotiable.
Proposal 2C, which, in part, would allow employees to grieve the designation of their positions as sensitive for drug testing purposes, is negotiable. The remainder of the proposal, which would preclude the testing of an employee until the challenge to the designation is resolved, is nonnegotiable because it would directly and excessively interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
The first sentence of Proposal 2D would require the Agency to provide transportation to an off-site laboratory for drug testing. We find that this sentence is a negotiable procedure under the Statute. The third sentence of Proposal 2D would require the Agency to provide employees with a minimum of 2 hours' notice before reporting for transportation to the off-site laboratory. The Authority finds, with Member Talkin dissenting, that the third sentence of the proposal is outside the duty to bargain and does not constitute a negotiable appropriate arrangement.
The first introductory paragraph of Proposal 4, which would require the Agency to provide 30 days' notice prior to actual testing, directly and excessively interferes with the Agency's right to determine its internal security practices. The second introductory paragraph of the proposal, requiring the Agency to provide briefings to all employees and allowing the Union to participate in the briefings, is negotiable. The third introductory paragraph of the proposal and subsections 4A-E and 4G-H, which require the Agency to provide specific information 24 hours prior to a drug test directly and excessively interfere with the Agency's right to determine its internal security practices.
Subsection 1 of Proposal 4F would require the Agency to provide employees with quarterly lists of substances that might cause false positive test results and also to provide such lists 24 hours in advance of testing. The portion requiring the Agency to furnish quarterly lists to the Union is negotiable. The remaining portion is nonnegotiable. Subsections 2 and 3 of Proposal 4F provide employees with an opportunity to declare and document the use of nonprescription medication or substances that might produce a false positive result or the use of a specific drug following a confirmed positive result. Subsections 2 and 3 are negotiable procedures.
Proposal 4I would require that an employee's original sample be split after its collection, that the Agency retain a portion, and that an employee retain the right to have a retest if there is a confirmed positive result. We find that the record is insufficient to enable us to make a negotiability determination and we will dismiss the petition for review as to this proposal.
Proposal 4J would require the Agency to provide employees up to 4 hours of administrative leave to take a drug test for independent, certified processing. The record is insufficient to enable us to determine the negotiability of the proposal and will dismiss the petition for review as to this proposal.
Proposal 5 contains several disputed sections. We find that the first introductory paragraph of Proposal 5, providing that testing will be conducted in accordance with the Department of Health and Human Services (HHS) scientific and technical guidelines and that the methods and equipment used will meet the guidelines, is negotiable as an appropriate arrangement. We also find that Section A, which references unspecified terms of the parties' agreement, is not sufficiently specific to permit a determination as to its negotiability. Section B, which would allow employees to provide a urine specimen in a sanitary, secluded area that affords visual and auditory privacy, is negotiable as an appropriate arrangement.
Section C of Proposal 5, which provides for the use of a Gas Chromatography/Mass Spectrometry test to verify positive test results, is negotiable as an appropriate arrangement. Section D of the proposal, which would allow an employee who is unable to provide a specimen on the test day to return on the next day, is nonnegotiable because it is inconsistent with the Mandatory Guidelines for Federal Workplace Testing issued by HHS, 53 Fed. Reg. 11970 (1988) (Guidelines). Section E, which concerns the use of the HHS chain of custody procedures, is not in dispute. We will dismiss the petition for review as to this section. Section F, which requires the authorized collection agent to collect all drug testing specimens, is negotiable.
Section A of Proposal 6 requires that samples be subject to strict chain of custody procedures and that each person who has custody for any amount of time provide a signature. The record is insufficient to enable us to determine the negotiability of this section and we will dismiss the petition for review as to this section. Section B provides that the Agency shall release information concerning employee drug tests only to those individuals who have an "absolute need to know." We conclude that Section B is negotiable. Section C requires the Agency to destroy any employee records concerning non-confirmed drug test results. Section C is inconsistent with Federal Personnel Manual (FPM) Supplement 293-31 and the Guidelines, and therefore, is nonnegotiable under section 7117(a)(1) of the Statute. Section D requires the Agency to provide copies of all records and documents to employees relating to their drug test. We find that this section of the proposal is consistent with law and regulation and, therefore, is negotiable.
Proposals 7A and 7B, which concern the referral of employees or their family members to counseling and rehabilitation services for substance abuse problems, at the Agency's expense, are inconsistent with FPM Supplement 792-2, subchapter S6-3 and, therefore, are nonnegotiable. Proposal 7C, relating to the Agency's development of an employee counseling or drug rehabilitation program, is negotiable. The first sentence of Proposal 7D, which would require the Agency to return an employee to duty after successful completion of a rehabilitation program, is a negotiable appropriate arrangement. The second sentence of Proposal 7D, which would require the Agency to return an affected employee to his or her former position, is nonnegotiable because it excessively interferes with the Agency's rights to determine its internal security practices and to assign employees.
Proposal 8 would prevent the Agency from requiring employees to sign any documents stating that they agree or disagree to be tested. The Authority finds, with Member Talkin dissenting, that Proposal 8 is nonnegotiable because it directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Proposal 9A, which states that no bargaining unit employees will be involved in any phase of drug testing procedures, is nonnegotiable because it directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
Proposal 9B, which would require the Agency to provide training to bargaining unit employees and Union representatives concerning the drug testing program, is negotiable.
Proposal 10, which would require the Agency to grant official time or administrative leave to employees for all facets of drug testing, is not sufficiently specific to enable us to make a negotiability determination. Therefore, we will dismiss the petition for review as to this proposal.
The first sentence of Proposal 11, which states that the Agency will not require employees to participate in voluntary drug testing programs, is negotiable, inasmuch as it is not inconsistent with Executive Order 12564 or management's right to determine its internal security practices under the Statute. The second sentence of Proposal 11, however, under which employees will not incur any advantage or disadvantage based on their participation or non-participation in voluntary drug testing programs, is inconsistent with the Executive Order and management's right to discipline under section 7106(a)(2)(A) of the Statute.
Proposal 12A would require the Agency to provide statistical data relating to the Agency's drug testing program. We find that the proposal directly and excessively interferes with the Agency's right to determine its internal security practices and is inconsistent with law. Proposal 12B, which would require the Agency to provide certain documentation to the Union, is not sufficiently specific to enable us to make a negotiability determination. Therefore, we will dismiss the Union's petition for review as it relates to Proposal 12B.
II. Proposal 1
The employer agrees that the establishment and administration of its drug abuse testing program will be done in strict compliance with the U.S. Constitution and all applicable laws, rules and regulations and this agreement. [Only the underlined portions of the proposal are in dispute.(3)]
A. Positions of the Parties
The Agency argues that the proposal is nonnegotiable because it is inconsistent with Executive Order 12564 and interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Specifically, the Agency argues that the proposal's use of the term "drug abuse" is ambiguous and could be construed to mean that the Agency could only test employees for an "abuse" of illegal drugs but not for any usage that may not be considered an abuse. The Agency asserts that, interpreted in this manner, the proposal is inconsistent with sections 1 and 3 of the Executive Order. Those sections require, respectively, that employees refrain from the use of illegal drugs, and that agencies establish programs to test for the use of illegal drugs, which, according to the Agency, is more expansive than the abuse of illegal drugs. The Agency argues that as the Authority has held that Executive Order 12564 constitutes law under section 7117(a)(1) of the Statute, the proposal is nonnegotiable under section 7117(a)(1). The Agency adds, however, that if the Union states that the term "drug abuse" has the same meaning as the Executive Order's reference to the use of illegal drugs, then the Agency would have no objection to this term in the proposal.
The Agency also contends that the portion of the proposal requiring "strict" compliance with laws, rules and regulations establishes a standard that is inconsistent with the sole and exclusive discretion expressly delegated by the Executive Order to the head of each agency concerning various aspects of drug testing programs. The Agency also contends that requiring strict compliance with laws, rules, and regulations directly interferes with the Agency's right to determine its internal security practices. The Agency states that it has the discretion to establish standards for determining how it will comply with applicable laws, rules, and regulations in establishing and administering its drug testing program and that strict compliance may be more than is necessary. Finally, the Agency contends that the proposal does not qualify as an appropriate arrangement under section 7106(b)(3) of the Statute because the Union merely made a blanket allegation to this effect and did not provide any supporting facts.
The Union, which did not file a response to the Agency's statement of position, asserts in its petition for review that the proposal merely requires the Agency to conduct its drug testing in accordance with applicable laws, rules, regulations, and the parties' agreement.
B. Analysis and Conclusions
We find that Proposal 1 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In reaching this result, we reject the Agency's allegation that use of the term "drug abuse" renders the proposal inconsistent with the Executive Order. The Union's expressed intent, that the proposal requires the Agency to conduct its drug testing program in accordance with applicable laws, rules and regulations, signifies that the proposal is intended to incorporate the standards set forth in the Executive Order. Consequently, we find that the term "drug abuse" merely refers to the Agency's drug testing program and does not create a limitation that would restrict testing solely to the discovery of employees who "abuse" illegal drugs.
Additionally, we find that the proposal is identical to proposals previously found negotiable by the Authority in American Federation of Government Employees, AFL-CIO, Local 3457 and U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana, 39 FLRA 1276 (1991) (Minerals Management Service), petition for review filed sub nom. U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, No. 91-1218 (D.C. Cir. May 10, 1991) and 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 1) (Member Talkin dissenting as to other matters) (Department of Education), petition for review filed sub nom. U.S. Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991), decision on reconsideration, 39 FLRA 1241 (1991). In those decisions, we found that the proposals constituted negotiable appropriate arrangements under section 7106(b)(3) of the Statute. For the reasons more fully discussed in Department of Education, we find this proposal is also negotiable as an appropriate arrangement.
In reaching this result, we reject the Agency's contention that the proposal cannot be considered an appropriate arrangement because the Union failed to support such a finding. As we noted in Minerals Management Service, 39 FLRA at 1278, our statutory obligations require that we apply the determination reached in Department of Education to this case, because to do otherwise would lead to anomalous and conflicting results on identical proposals.
III. Proposal 2B
Prior to deciding to test an employee for reasonable, articulable suspicion, the supervisor will document his/her suspicions and have them approved in writing by the next higher level of supervision. [Only the underlined portion was declared nonnegotiable.(4)]
A. Positions of the Parties
The Agency argues that this proposal is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Specifically, the Agency asserts that the proposal would require it to assign to a supervisor the duty of documenting his or her suspicions and to assign to the next higher level of management the task of approving the supervisor's suspicions, in writing. The Agency also states that the proposal is tied to and dependent on Proposal 2A, which would have precluded random testing and which the Agency contends is, therefore, inconsistent with the Executive Order and with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.(5) Finally, the Agency asserts that the Union has not demonstrated that Proposal 2B is intended as an appropriate arrangement under section 7106(b)(3) of the Statute.
The Union argues that Proposal 2B is independent of Proposal 2A. It asserts that the proposal applies in those instances where a supervisor has an articulable suspicion that an employee is using illegal drugs. The Union also asserts that the proposal does not preclude the Agency from "obtaining confirmation or referring the matter to other segments of its organization such as those charged with internal security." Petition for Review at 3.
B. Analysis and Conclusions
We find that the proposal is negotiable. Initially, we reject the Agency's contention that the proposal must be considered in conjunction with Proposal 2A and that it suffers from the same deficiencies because it would preclude random testing. Nothing in the language of Proposal 2B or the Union's stated intent warrants the conclusion that the Agency would be prevented from engaging in random drug testing. The language clearly refers only to drug testing on the basis of reasonable, articulable suspicion, and the Union expressly states that Proposal 2B is intended to operate independent of Proposal 2A. Consequently, we need not address the Agency's contentions that are based on a misapprehension of the proposal. Instead, we will address only the Agency's assertion that the proposal interferes with the right to assign work.
As noted, the Agency's claim is based on the proposal's requirements that the supervisor perform the task of documenting his or her suspicions prior to deciding to test an employee based on a reasonable, articulable suspicion of drug use, and that the next higher level of management approve the supervisor's suspicions, in writing. In American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187 (1991) (Merchant Marine Academy), we found that proposals that are procedural in nature but entail some assignment of work to agency personnel do not necessarily directly interfere with the exercise of management's right to assign work. We reach the same conclusion here. Proposal 2B simply requires a supervisor to take the procedural step of documenting the basis for that supervisor's suspicions and for a higher level of management to approve the supervisor's suspicions. We note that the obligation to substantiate the basis for reasonable suspicion testing is consistent with the requirement contained in FPM Letter 792-19 that "[w]here testing is conducted 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." 54 Fed. Reg. 14026. Under these circumstances, and as no other basis exists for finding that the proposal is inconsistent with management's right to assign work, we find that the proposal does not directly interfere with that right.
IV. Proposal 2C (6)
Prior to the initiation of a testing program, the agency shall send out notices to designated sensitive employees concerning the initiation of testing. [1] An employee who believes that his/her position was erroneously designated as sensitive shall be entitled to file a grievance of [sic] this determination. [2] Such grievance shall be initiated at the final step prior to invocation of arbitration. [3] Arbitration may thereafter be invoked according to the procedure of the Article. [4] The employee will not be tested until his/her status as a sensitive employee is resolved. [Only the underlined portions are in dispute.]
A. Positions of the Parties
The Agency argues that the proposal is nonnegotiable because it: (1) directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute; (2) contravenes Executive Order 12564; and (3) is inconsistent with the Agency's drug testing plan, entitled Drug Free Workplace Policy and Procedures (the Plan), for which there is a compelling need.
Specifically with regard to its first contention, the Agency asserts that the designation of specific positions as "sensitive" is critical to its internal security practices. The Agency notes that section 7(d) of the Executive Order defines the parameters of sensitive positions and that the Agency has identified other sensitive positions as being related to the Agency's mission. The Agency argues that the effect of the proposal would be to permit an arbitrator to decide whether a particular position is sensitive, thus negating the Agency's right to determine its internal security practices. The Agency also asserts that the proposal's interference with management's right to determine its internal security practices is excessive and, consequently, that the proposal does not constitute an appropriate arrangement. The Agency further notes that employees have an administrative procedure, set forth in the Agency's Plan, for contesting the designation as a sensitive employee, so that "the balance weighs in favor of management." Statement of Position at 16.
The Agency also argues that the last sentence of the proposal, which would preclude testing until the grievance over the status of an employee's position is resolved, directly and excessively interferes with management's right to determine its internal security practices. The Agency asserts that a user of illegal drugs could escape detection by filing a grievance and continuing to use illegal drugs while the grievance is pending and, thus, have "virtual immunity from testing." Id.
With regard to its assertion that the proposal contravenes Executive Order 12564, the Agency argues that a decision as to whether a particular position is to be designated as a sensitive position is specifically and exclusively determined by the Agency head in accordance with section 7 of the Executive Order and is not subject to review under a negotiated grievance/arbitration procedure. The Agency further argues that because the designation of a position as sensitive is specifically provided for by law, namely, the Executive Order, such designations are outside the duty to bargain under section 7103(a)(14)(C) of the Statute.
Finally, the Agency asserts that the proposal is inconsistent with the Agency's Plan, for which there is a compelling need under section 7117(a)(1) and (2) of the Statute and section 2424.11 of the Authority's Rules and Regulations. The Agency states that section I.7 of the Plan provides for an administrative appeal over the designation of an employee's position as sensitive that can be filed with "the designated official who has authority to remove the employee from the TDP [Testing Designated Position] list." Id. at 19. The Agency states that the designated official is required to review the appeal and render a final decision which, by the terms of section I.7, is not subject to further administrative review. The Agency asserts that there is a compelling need for this section of the Plan because it is essential to the exercise of the Agency's internal security functions and, thus, is consistent with the requirements of an effective and efficient government. The Agency further supports its assertion of compelling need on the basis that section I.7 implements a nondiscretionary mandate to the Agency under law or outside authority, namely, the Executive Order, which vests in the Agency head the sole and exclusive right to designate sensitive positions.
The Union states that the proposal is intended to include within the scope of the negotiated grievance procedure "the subject of inclusion in sensitive positions[.]" Petition for Review at 3. To the extent the grievance would be initiated at the final step of the grievance procedure and authorize a stay of testing until the dispute is resolved through arbitration, the Union asserts that the proposal sets forth "a special procedure in grievances over the correctness of identifying an employee as occupying a sensitive position[.]" Id. In its supplemental brief, the Union argues that the importance of having a proper sensitive position designation was underscored by the decision in American Federation of Government Employees v. Cavazos, 721 F. Supp. 1361 (D.D.C. 1989), in which the court identified the various repercussions that would flow from employee drug usage. Specifically, the court noted that, under Executive Order 12564, first time drug users who are not in sensitive positions are to be offered counseling and rehabilitation while employees in sensitive positions are to be immediately removed from their jobs. Given the possibility of removal, the proper designation of an employee is crucial, according to the Union. Finally, the Union states that nothing in Proposal 2C would conflict with section 7(d) of the Executive Order.
B. Analysis and Conclusions
The first three sentences of the proposal that are in dispute are negotiable. The fourth sentence, however, directly and excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, and is nonnegotiable.
1. The First Three Disputed Sentences
These sentences would allow an employee who believes that his or her position has been incorrectly designated as sensitive to grieve that determination at the final step of the negotiated grievance procedure and, thereafter, to invoke arbitration. In National Federation of Federal Employees, Council of GSA Locals and General Services Administration, 41 FLRA 728, 739-51 (1991) (GSA), the Authority was presented with a similar proposal which we found constituted a negotiable appropriate arrangement. In GSA, the proposal essentially sought to enable employees to challenge, through the negotiated grievance procedure, the agency's compliance with its own regulation designating positions that were subject to random drug testing. In finding the proposal negotiable, we rejected the agency's contention that allowing an arbitrator to substitute his or her judgment for that of management in designating a position for testing rendered the proposal nonnegotiable. We found, instead, quoting 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, 528 (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), that "[a]n 'assertion that an arbitrator's judgment may be substituted for its own is not a basis for finding a proposal to be nonnegotiable.'" 41 FLRA at 744. This finding is equally applicable here. Therefore, we reject the Agency's contention that the proposal contravenes the Executive Order, which it claims vests sole and exclusive jurisdiction to designate sensitive positions in the Agency head. For the same reason, we reject the Agency's internal security argument that is predicated on the Agency's view that an arbitrator may not negate the Agency's designation of sensitive positions.
Also with respect to the Agency's internal security argument, we note that in GSA, we addressed an argument that the proposal directly interfered with management's right to determine its internal security practices under section 7106(a)(1). We found it unnecessary to decide that issue because even if there were a direct interference with that right, the proposal would be negotiable as an appropriate arrangement. This finding was guided by our earlier decision in Department of Education, 38 FLRA at 1074, in which we addressed a proposal that required the agency to establish and administer its drug testing programs in accordance with applicable laws, rules, and regulations, among other things, and that would have allowed challenges to the agency's actions through the grievance and arbitration procedure. In Department of Education, we concluded that although the proposal directly interfered with the agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, the proposal was negotiable as an appropriate arrangement because an agency's implementation of a drug testing program could adversely affect employees and, to the extent that the existence of applicable laws, rules, and regulations already served to limit agency action, an agency's interest in being able to act without regard to such restrictions was negligible. In GSA, we concluded that the significant benefits employees would gain by being able to challenge the agency's compliance with its procedure for designating the positions subject to drug testing outweighed the minimal adverse impact on the agency's exercise of its management right, especially in view of the agency's interest in ensuring that its designations were not based on inappropriate criteria.
In this case, we also find it unnecessary to decide whether the designation of sensitive positions constitutes an exercise of management's right to determine its internal security practices because we nonetheless find that the proposal is a negotiable appropriate arrangement for the reasons set forth in GSA. As we found in GSA, the ability to challenge the designation of positions subject to drug testing instills confidence in the drug-testing program as a whole and enhances confidence in an agency's program. This is particularly so given the effect of drug testing programs on employees' personal privacy and where the repercussions flowing from confirmed drug use may differ for employees occupying sensitive positions and those occupying non-sensitive positions. See, for example, section 5 of Executive Order 12564. In contrast, we view the impact on the Agency's right to determine its internal security practices as minimal. We have already rejected the Agency's argument that review of a position designation by an arbitrator renders the proposal nonnegotiable because we do not view arbitral review as excessively interfering with management's right. We also find without merit the Agency's argument that the availability of an administrative appeal procedure warrants a finding that the proposal excessively interferes with management's right. The existence of such a procedure does not outweigh the benefits to employees that use of the negotiated grievance procedure, with impartial third-party review, affords. Consequently, on balance, we conclude that the benefits inuring to employees under the proposal outweigh the burden imposed on the Agency's exercise of its management right.
Finally, we reject the Agency's assertion that there is a compelling need for the Agency's Plan so as to bar negotiations over the proposal. In support of its assertion, the Agency states that the Executive Order requires the Agency head to designate which positions are sensitive, that section I.7 of the Agency's Plan establishes a procedure for appealing the designation, and that the designating official renders a final decision with no further right of appeal.(7) The Agency argues that section I.7 of the Plan meets two of the illustrative criteria for establishing compelling need under section 2424.11 of the Authority's Rules and Regulations because: (1) section I.7 is essential to the exercise of the Agency's functions in a manner that is consistent with an effective and efficient government under section 2424.11(a); and (2) the section implements an essentially nondiscretionary mandate under law or outside authority, namely Executive Order 12564, under section 2424.11(c).
We find that the Agency has failed to establish a compelling need for section I.7 of the Plan so as to bar negotiations over the proposal. Both arguments made by the Agency are tied to its view that the designation of positions as sensitive for purposes of drug testing can be made only by the Agency and is not subject to review outside the Agency. Previously, we have rejected that argument in the context of management's right to determine its internal security practices. We do so here as well. The Agency has not established that vesting final decision-making of an appeal in the designating official without further administrative review is essential, as opposed to simply helpful or desirable, and the Agency has not shown in what manner use solely of its own appeal mechanism leads to an effective and efficient government. Compare American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 446 (1991), petition for review filed sub nom. U.S. Department of Justice, Justice Management Division v. FLRA, No. 91-1582 (D.C. Cir. Nov. 26, 1991) (agency regulation setting forth 15-day appeal period for an employee to appeal designation of a position as a testing designated position not a bar to negotiations as regulation not shown to be essential, as required under section 2424.11(a), and arguments concerning efficiency and effectiveness either not shown or were speculative). Similarly, the Agency has not established that its Plan implements an essentially nondiscretionary mandate under Executive Order 12564. While section 7 of the Executive Order provides that the head of an agency may designate various positions as sensitive positions, the Executive Order does not preclude review of such designations in the manner specified in the Union's proposal.
2. The Fourth Disputed Sentence
In contrast to our findings above, we find that the fourth disputed sentence of the proposal would directly and excessively interfere with the Agency's right to determine its internal security practices.
The express wording of the fourth sentence would preclude the testing of an employee who challenges his or her status as a sensitive employee until the employee's status is resolved. Stated otherwise, the last sentence of the proposal would prevent the Agency from testing the employee while the employee's challenge through the grievance/arbitration procedure is pending.
It is by now well established that drug testing of designated employees constitutes an exercise of management's right to determine its internal security practices. See, for example, 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, 1056 (Rock Island I), remanded as to other matters sub nom. Department of the Army, U.S. Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988), decision on remand, 33 FLRA 436 (1988), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground, Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground), decision on remand, 35 FLRA 936 (1990). Additionally, section 3(a) of Executive Order 12564 mandates the establishment of agency drug testing programs to test for the illegal use of drugs by employees occupying sensitive positions.
This portion of the proposal, although procedural in form, would have a substantial effect on the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. Compare American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45, 59 (1988) (Tooele Army Depot) (proposal that would have prevented the agency from subjecting employees to drug testing until all union or unit employee challenges to Executive Order 12564 and various regulations were resolved directly and excessively interfered with the agency's right to determine its internal security practices). Thus, the fourth sentence of the instant proposal would immunize employees, all of whom had been designated as having sensitive status, from testing during the pendency of an appeal. In our view, the ability to test employees in sensitive positions is of paramount concern to an agency's internal security. This view is compelled by section 3(a) of Executive Order 12564, which mandates the establishment of drug testing programs to detect illegal drug use by employees in sensitive positions and also by the very nature of sensitive positions and the duties performed by employees occupying such positions. The clear import of a scheme to test employees in sensitive positions is to detect illegal drug use among those whose illegal drug use may endanger the public health or safety or the national security. See section 5(c) of Executive Order 12564.
The fourth sentence of the proposal is distinguishable from proposals that simply require the suspension of actions pending resolution of an appeal through a negotiated grievance and arbitration procedure. For example, in American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979) (Dix-McGuire), enf'd sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom., AFGE v. FLRA, 455 U.S. 945 (1982), which was distinguished in Tooele Army Depot, the Authority found negotiable a proposal that required the stay of disciplinary actions until completion of an appeal through the negotiated grievance and arbitration procedure. However, such proposals are not categorically negotiable. Subsequent to Dix-McGuire, the Authority found that where an agency would be prevented from taking disciplinary actions that are prescribed by law, a proposal to stay such disciplinary actions directly and excessively interfered with the agency's right to discipline. See American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 320 (1990), enf'd as to other matters sub nom. U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, No. 91-1031 (D.C. Cir. Dec. 3, 1991). Significantly, the proposal here would place an absolute prohibition on the Agency's ability to test employees in sensitive positions during the appeal process. Nothing in the plain language of the proposal itself or the Union's explanation of the proposal would permit the Agency to make any exception to the prohibition.
We also find that the fourth sentence of the proposal is distinguishable from a proposal seeking to delay the implementation of drug testing pending completion of negotiations. International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1504-06 (1991) (Bureau of Reclamation). In Bureau of Reclamation, we found that the proposal would only require the agency to meet its bargaining obligation under the Statute and would not prevent the agency from exercising its rights under the Statute. We explained that the proposal would not prevent the agency from implementing changes where those changes were consistent with the necessary functioning of the agency or once the matters before the Federal Mediation and Conciliation Service and/or the Federal Service Impasses Panel were resolved. Thus, while recognizing that delay in the implementation of an agency's drug testing program is negotiable, we noted that the agency would retain flexibility in exercising its rights under the Statute. Here, by contrast, the Agency's ability to test employees in sensitive positions would be completely proscribed during the pendency of an appeal.
We also find that the proposal would excessively interfere with the exercise of management's right to determine its internal security practices. Thus, while the proposal would constitute a significant benefit to employees, the benefit would be obtained at the cost of protecting the security of the Agency's property, personnel, and operations from the effects of possible illegal drug use by employees occupying sensitive positions. Thus, the burden imposed on the Agency by its inability to test those employees until a challenge is resolved could result in a substantially increased risk to the Agency's security and, on balance, outweighs the benefit to employees. Consequently, we find that Proposal 2C is not an appropriate arrangement under section 7106(b)(3) of the Statute because it would excessively interfere with management's right to determine its internal security practices.
V. Proposal 2D
If the urine sample is to be provided off-site, the employer must provide transportation to the site. Travel to and from the laboratory will be on official time. Employees will be given a minimum of two hours notice before reporting to the bus or other mode of transportation. [Only the underlined portions are in dispute.]
A. Positions of the Parties
The Agency asserts that the first sentence of the proposal requires the Agency to provide a bus or other Government vehicle to transport an employee to an off-site drug testing laboratory. The Agency contends that the first sentence is outside the duty to bargain under section 7106(b)(1) of the Statute because it would preclude the Agency from establishing any other method or means of transporting employees to an off-site laboratory. The Agency cites National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797, 831-32 (1987) (Bureau of Land Management), to support its contention that a proposal requiring an agency to use "a particular mode of transportation is nonnegotiable under section 7106(b)(1) because it precludes the agency from choosing the particular mode of transportation . . . to be used in accomplishing its work." Statement of Position at 22. The Agency argues that an arbitrator could interpret this proposal as requiring the Agency "to provide actual vehicles[]" and, thus, the proposal interferes with management's right to determine the technology, methods or means of performing its work under section 7106(b)(1). Id. at 23 (emphasis in original).
The Agency also contends that the third sentence of the proposal, requiring a minimum of 2 hours notice to employees before they report to vehicles for transportation to an off-site test laboratory, interferes with management's right to determine the Agency's internal security practices under section 7106(a)(1) of the Statute. The Agency asserts that the minimum notice period required by the proposal could result in more than 2 hours' notice being provided and that the proposal "invites the use of synthetic urines, carefully warmed to normal body temperature during the required two hour hiatus, thereby increasing the risk of false negative results." Id. The Agency contends that the effect of this sentence of the proposal is to "frustrate the drug testing program's purpose of identifying illegal drug users . . ." and, consequently, that the third sentence directly interferes with management's right to determine its internal security practices under section 7106(a)(1). Id. at 24. In support, the Agency relies on the Authority's decision in National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground Installation Support Activity, 31 FLRA 241 (1988) (Aberdeen I) (Proposal 1), remanded as to other matters sub nom. Department of the Army Aberdeen Proving Ground, Installation Support Activity v. FLRA, No. 88-1310 (D.C. Cir. July 18, 1988) (Order), decision on remand, 33 FLRA 702 (1988) (Aberdeen II), rev'd in part and remanded as to other matters sub nom. Aberdeen Proving Ground, decision on remand, 35 FLRA 926 (1990).
The Agency further argues that the third sentence of the proposal contravenes Part II, section .8E of the Agency's Plan, for which there is a compelling need. The Agency asserts that the Plan provides for either no advance notice or a maximum of 2 hours' notice before a scheduled test in order to avoid giving employees time to alter their specimens. The Agency argues that for a drug test to be effective, and to achieve the goal of identifying illegal drug users, employees must report for testing without any notice, or within 2 hours, as provided by the Plan. The Agency argues that its Plan is essential to accomplishing the Agency's mission of achieving a drug-free workplace in a manner that is consistent with the requirements of an effective and efficient government. The Agency also argues that its Plan implements a congressional mandate to achieve a drug-free workplace in accordance with Executive Order 12564. The Agency contends that the legislative history of section 503 of the Supplemental Appropriations Act of 1987, Pub. L. No. 100-71, 101 Stat. 468 (1987), codified at 5 U.S.C. § 7301 note, indicates a congressional desire to achieve uniformity in drug testing plans. The Agency asserts that the proposal's minimum 2 hours' notice would thwart the congressional intent "that all employees of the various agencies and . . . of components of an agency, would follow the same drug testing regulations in significant respects." Statement of Position at 27. The Agency argues that even if they were represented by different unions, employees of a particular agency would be expected to follow uniform drug testing rules. The Agency states that if drug testing is not uniformly followed, the purpose of the drug testing program could be frustrated.
Finally, the Agency asserts that the proposal's notice requirement does not constitute an appropriate arrangement because it would excessively interfere with management's right to determine its internal security practices under section 7106(a)(1). The Agency contends that the notice requirement is not "concerned with adverse impacts on employees because the areas of impact, if any, are substantially within the employee's control." Id. at 29. Regarding any alleged adverse impact, the Agency states that it is unlikely that management would schedule off-site drug tests to make employees late in arriving home but, rather, the Agency contends that even if this should occur, an employee could make the necessary phone calls from the test site to inform "others of the possibility of arriving home late." Id.
The Union merely states that the proposal "has its facial meaning." Petition for Review at 3.
B. Analysis and Conclusions
1. The First Sentence Is a Negotiable Procedure
Proposal 2D is identical to a proposal that was before the Authority in a case involving the same Agency headquarters and Agency component as are involved in this case, but involving a different labor organization. National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, 41 FLRA 1158 (1991) (National Park Service) (Proposal 2). We addressed the same arguments that are raised in this case and, for the reasons more fully set forth therein, we reach the same conclusions with regard to the negotiability of Proposal 2D.
More specifically, we find that the first sentence of Proposal 2D does not concern a matter falling within section 7106(b)(1) of the Statute. Rather, this sentence constitutes a negotiable procedure. As we found in National Park Service, providing transportation for employees who are required by the Agency to travel from their regular work site to an off-site laboratory in connection with a drug test does not involve the technology, methods or means of performing work under section 7106(b)(1) and is not integrally related to the manner in which the Agency's mission is accomplished. Like the proposal in National Park Service, Proposal 2D is also distinguishable from Bureau of Land Management, in which the Authority found nonnegotiable a proposal that addressed the use of privately owned vehicles for Government business, because Proposal 2D is not directly and integrally related to the nature of the Agency's business and the accomplishment of the Agency's mission. Consequently, we conclude that the first sentence of the proposal constitutes a negotiable procedure.
2. The Third Sentence is Nonnegotiable
We find that the third sentence of Proposal 2D is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Moreover, the third sentence does not constitute a negotiable appropriate arrangement. (Member Talkin's dissenting opinion is set forth at note 8, below.)
The third sentence of Proposal 2D requires that employees be given a minimum of 2 hours' notice prior to reporting for transportation to an off-site laboratory. As we indicated in National Park Service, relying on our earlier decision in American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439, 1440-45 (1990) (Member Talkin dissenting, in part) (Sierra Army Depot), proposals requiring that employees be given 2 hours' advance notice that they will be tested for illegal drug use directly interfere with an agency's right to determine its internal security practices by interfering with the agency's ability to conduct unannounced random drug tests of employees in sensitive positions. As the third sentence of Proposal 2D would require, at a minimum, that employees be given 2 hours' notice prior to reporting for transportation to the test site, it similarly constitutes an impermissible interference with management's right to determine its internal security practices.
Additionally, the third sentence of the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) because it would excessively interfere with the exercise of management's right to determine its internal security practices. As we explained in National Park Service, the Agency has the right, as part of its internal security practices, to guard against any reduced effectiveness of its drug testing program that might result from the requirement of a minimum 2 hours' notice. The Union makes no arguments that a minimum 2-hour notice requirement is designed to ameliorate adverse effects on unit employees and, in our view, any benefits that conceivably could inure to employees are outweighed by the burden imposed on the exercise of management's right. Consequently, we find that the third sentence of the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.(8) In view of this result, we will not address the Agency's remaining argument involving compelling need for an Agency regulation.
VI. Proposal 4 (9)
Sixty (60) days prior to implementation of any drug testing program, a general notice will be issued to each employee. Specific notice will be issued thirty (30) days prior to actual testing of employees in designated positions.
The agency will provide briefings for all employees identified as occupying sensitive positions at least fourteen (14) days prior to initiation of drug testing. The union shall be notified of these briefings and shall be entitled to attend, and shall be entitled to speak at these briefings.
In the event drug testing is required under Section 2.A., twenty-four (24) hours prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
A. Whether the testing is mandatory or voluntary under this agreement;
B. The reasons for ordering the drug testing;
C. How the employee was selected for the test;
D. The frequency or intervals [with] which they will be tested;
E. The consequences of a positive result or refusal to cooperate, including adverse action;
* * * * *
G. The location of drug abuse counseling and referral services available through the Employee Assistance Program to which he/she can voluntarily submit without reprisal;
H. The right to union representation concerning the matter, including but not limited to any meetings, or preparation for meeting, before, during or after the test is conducted[.] [Only the underlined portions are in dispute.]
A. Positions of the Parties
The Agency argues that Proposal 4 is nonnegotiable because particular portions of this proposal: (1) directly and excessively interfere with management's right to determine its internal security practices; (2) interfere with its right to assign work under section 7106(a)(2)(B) of the Statute; (3) interfere with its right to discipline under section 7106(a)(2)(A) of the Statute; and (4) contravene sections 2.2(d) and 2.3 of the Guidelines.
Specifically, the Agency argues that the second sentence of the first introductory paragraph is nonnegotiable because the term "actual testing" requires specific notice to employees 30 days before they will be tested for illegal drugs. The Agency argues that the proposal could be interpreted to give employees 30 days' notice of the date on which they will be tested, which would allow the employees to purge their systems of illegal drugs and frustrate the drug testing program. The Agency thus argues that the proposal interferes with the right to determine internal security practices under section 7106(a)(1) of the Statute. The Agency also argues that this portion of the proposal is similar to a proposal in Aberdeen I, 31 FLRA at 243, in which the Authority held that a 14-day notice period, if interpreted as providing employees with enough time to purge their bodies of drugs, would negate the purpose of the drug testing program and, thereby, directly interfere with management's right to determine its internal security practices. Alternatively, the Agency asserts that the petition for review of this proposal should be dismissed because the Union has failed to provide a record upon which the Authority can determine the meaning and, therefore, the negotiability of this proposal.
As to the second introductory paragraph of this proposal, the Agency argues that it also is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency further argues that the briefings contemplated by this paragraph will require it to assign training duties to some employees who will then be "trainers" while other employees will have to be assigned duties as "trainees" to receive information during the briefings. Moreover, because all of these duties will have to be assigned during the employees' duty hours, the Agency asserts that the proposal requires it to provide training duties and responsibilities to all employees who participate in the briefings. The Agency states that the Authority previously has found similar proposals to be nonnegotiable as an interference with an agency's right to assign work, citing Bureau of Land Management, 30 FLRA at 825 (Proposal 16); American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force, HQ 90th Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130, 1138 (1988) (Provision 4).
The Agency further argues that the second paragraph does not constitute a negotiable appropriate arrangement because it would excessively interfere with management's right to assign work. The Agency argues that by requiring briefings, rather than providing written information, the proposal would create a substantial burden on management to assign training that would be "disproportionate to any benefit to be derived from such oral briefings." Statement of Position at 37 (footnote omitted). The Agency notes, in this connection, that informational booklets have already been provided to all employees. Finally, the Agency asserts that the imposition of the training requirement created by the second introductory paragraph potentially could lead to its imposition in the approximately 220 other collective bargaining units within the Department of the Interior that are dispersed across the United States. Consequently, the Agency argues that the requirement to provide training in this unit could impose an increased burden throughout the Agency.
The Agency asserts that the third introductory paragraph and subsections 4A-E and 4G-H are nonnegotiable because they directly interfere with management's right to determine its internal security practices under section 7106(a)(1). The Agency further argues that subsection 4G interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. More specifically in terms of its internal security argument, the Agency asserts that by requiring it to provide 24 hours' notice prior to actual testing, along with the specified information, this portion of the proposal could provide employees with enough time to purge their bodies of drugs and, thereby, frustrate the Agency's drug testing program. The Agency also argues that subsection 4D is nonnegotiable for the additional reason that it requires notice of the time interval between testings, which would allow an employee to continue to use illegal drugs with the knowledge that testing would not occur "until the end of the scheduled time interval." Id. at 39. The Agency argues that this subsection would also frustrate the purpose of drug testing, in direct interference with management's right to determine its internal security practices. The Agency argues that subsection 4H is also independently inconsistent with section 7106(a)(1) of the Statute because the requirement of providing Union representation at any meeting or preparation for meeting prior to or during testing would allow the employee to be notified of the time testing will occur and would permit the employee to purge his or her body of illegal drugs. The Agency also asserts that the presence of a Union representative during testing would impermissibly compromise the security of the testing process.
The Agency also maintains that subsection G of Proposal 4 interferes with management's right to discipline under section 7106(a)(2)(A) by allowing an employee to voluntarily submit to counseling or rehabilitation without reprisal. The Agency argues that this portion of the proposal has the effect of suspending any disciplinary action management might take while the employee is being rehabilitated or counseled.
Next, the Agency contends that subsection 4H is inconsistent with sections 2.2(d) and 2.3 of the Guidelines, which constitutes a Governm