43:1279(105)NG - - NTEU and Regulatory Commission, Washington, DC - - 1992 FLRAdec NG - - v43 p1279



[ v43 p1279 ]
43:1279(105)NG
The decision of the Authority follows:


43 FLRA No. 105

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. NUCLEAR REGULATORY COMMISSION

WASHINGTON, D.C.

(Agency)

0-NG-1862

DECISION AND ORDER ON NEGOTIABILITY ISSUES

January 31, 1992

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 four proposals.

Proposal 1 requires the Agency to give Agency employees first consideration for bargaining unit positions before candidates from any other sources are considered for selection. Proposal 1 is negotiable under section 7106(b)(2) of the Statute.

Proposal 2 requires the rating panel or rating official to prepare a written record of conclusions as to each candidate in a selection action and to submit that written record to the selecting official. Proposal 2 also provides that the numerical rating of each candidate on the best qualified list shall not be submitted to the selecting official. We find that Proposal 2 establishes a procedure for the Agency to follow in exercising its rights under section 7106(a)(2)(C) of the Statute. Therefore, Proposal 2 is negotiable.

Proposal 3 requires the Agency to stay a disciplinary or adverse action arising from implementation of the Agency's drug testing program until the completion of the negotiated grievance procedure or a statutory appeals procedure, or for 90 days, whichever occurs earlier. We find that Proposal 3 does not conflict with sections 5(b) and (c) of Executive Order 12564. We also find that Proposal 3 constitutes an appropriate arrangement for employees adversely affected by the exercise of the Agency's right to discipline employees under section 7106(a)(2)(A). We conclude, therefore, that Proposal 3 is negotiable under section 7106(b)(3) of the Statute.

The first and second sentences of Section C of Proposal 4 require that, at the time an employee is notified that he or she will be tested based on reasonable suspicion, management provide the employee with written reasons for ordering a drug test. We find that the first and second sentences of Section C of Proposal 4 do not directly interfere with management's rights under section 7106 of the Statute and, therefore, that they are negotiable. The third sentence of Section C of Proposal 4 states that the Agency will inform an employee who is to report for reasonable suspicion drug testing that the employee may consult with the Union before the test is administered. We find that the third sentence of Section C of Proposal 4 does not excessively interfere with management's rights under section 7106 of the Statute. Therefore, we conclude that the third sentence of Section C constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

The first sentence of Section E of Proposal 4 provides that employees who are notified to report for reasonable suspicion drug testing will be given the opportunity to respond to the Office Director or Regional Administrator before the test is administered. The proposal does not excessively interfere with the Agency's ability to conduct an investigation regarding use of illegal drugs and does not excessively interfere with management's rights to discipline employees or determine its internal security procedures. Therefore, the first sentence of Section E of Proposal 4 is negotiable as a procedure under section 7106(b)(2) of the Statute. Even assuming the first sentence of Section E directly interferes with management's rights, the first sentence of Section E would constitute an appropriate arrangement under section 7106(b)(3). Under the second sentence of Section E of Proposal 4, if employees successfully explain to the Office Director or to the Regional Administrator why a drug test is not required, the employees' personnel files will be purged of any reference to the test. We find that the Agency has not demonstrated that the second sentence of Section E of Proposal 4 is inconsistent with any law, rule or regulation. Accordingly, we find that the second sentence of Section E of Proposal 4 is negotiable.

II. Preliminary Matter

The Agency states that as to Proposal 3 specifically, and as to the other proposals generally, the Union has failed to raise the issue of whether the proposals constitute appropriate arrangements under section 7106(b)(3). The Agency asserts, therefore, that the Authority should not, sua sponte, raise the issue of whether the proposals constitute appropriate arrangements. The Agency claims that, in any event,

by establishing as we have attempted to, that in each instance the proposal would directly interfere with reserved management rights, we have also shown that [the] direct interference established is excessive in nature, and 'excessive interference' has been held to be the standard by which to hold nonnegotiable proposal for appropriate arrangements under subsection 7106(b)(3).

Statement at 13 n.5 (citation omitted).

Subsequently, the Union filed a response to the Agency's statement of position. In its response, the Union asserted for the first time that the proposals are negotiable under section 7106(b)(3) as appropriate arrangements for employees adversely affected by the exercise of management's rights under section 7106(a) of the Statute. Response at 1. The Agency did not request to file a supplemental statement addressing the Union's claim.

We find that the Union's claim that the proposals constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute is properly before us. See National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 624 n.2 (1990). Therefore, where appropriate, we will examine the Union's proposals under the analytic framework set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard), to determine whether the proposals constitute appropriate arrangements under section 7106(b)(3) of the Statute.

III. Proposal 1

Merit Selection Procedures

Section 22.4

22.4.1

The NRC [Nuclear Regulatory Commission] has the right, in accordance with applicable laws with respect to filling positions, to make selections for appointment from among properly rated and certified candidates for promotion or from any appropriate source.

22.4.2

The NRC agrees to grant first consideration to NRC employees when filling bargaining unit positions. To assure first consideration for NRC employees, the NRC shall rate and consider all NRC employee applicants for any unit position before the selecting official for a position may consider applications from any other sources. This does not preclude NRC from soliciting applicants from other sources. However, no applicant from another source may be considered until after the NRC has considered employee applicants under this subsection.

22.4.3

If the consideration of NRC employees alone does not result in the selection for the position and the NRC still desires to fill the position, the NRC will then include both NRC employees and sources other than NRC employees in the process. This second process will produce a hybrid list of both NRC employees and applicants from other sources. The applicants who were not previously rated by the panel must now be evaluated by the panel using, to the extent possible, the same procedures which were used to rate NRC employees. Once this is completed, the second (hybrid) best qualified list will be created from top candidates, whether NRC employees or other candidates. The number of names on the hybrid best qualified list shall be determined using the procedures contained in Section 22.20, except that the maximum number of names permitted on the hybrid list shall be six. Thereafter, this new hybrid list will be submitted to the selecting official for consideration. The names on this hybrid list shall be placed in alphabetical order, with no reference made as to whether the individual is an employee or not.

22.4.4

The provisions of Section 22.4.2 shall not apply to positions which have attracted fewer than three NRC employee applicants for any three consecutive vacancy announcements which have been posted following the effective date of this Agreement. All such positions shall thereafter be filled pursuant to the provisions of Section 22.4.3.

A. Positions of the Parties

1. Agency

The Agency states that section 22.4.2 of Proposal 1 would require that "first consideration . . . be given to NRC employees, who are rated and considered before outside applicants are even looked at." Statement at 6. The Agency contends that the proposal directly interferes with its right to hire under section 7106(a)(2)(A) and its right to make selections from any appropriate source under 7106(a)(2)(C) of the Statute.

The Agency claims that Proposal 1 has the same effect as the proposal found nonnegotiable in National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886 (1990) (Tennessee Air National Guard). The Agency states that Tennessee Air National Guard concerned a proposal that would preclude an agency from soliciting or considering military personnel for bargaining unit positions until after the placement process for currently employed technicians had been completed. According to the Agency, the Authority, relying on the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819, 822 (D.C. Cir. 1988) (Treasury, BATF v. FLRA), found that the proposal in Tennessee Air National Guard interfered with management's right to select employees from any appropriate source because it placed a substantive limit on that right.

The Agency interprets Treasury, BATF v. FLRA, Tennessee Air National Guard, and American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Naval Weapons Station, Charleston, South Carolina, 35 FLRA 1128 (1990) (Naval Weapons Station), as providing that first consideration of agency employees is consistent with the Statute "as long as there is concurrent consideration of outside employees from any other source, thereby preserving management's reserved right to select from any appropriate source and not limiting its field of consideration in any way." Id. at 6-7. The Agency claims, however, that "[t]he proposal here simply does not allow for that and therefore must be held as nonnegotiable." Id. at 7.

2. Union

The Union states that Proposal 1 is "intended to allow NRC employees first consideration for bargaining unit vacancies in certain circumstances." Petition at 3-4. The Union states that although under section 22.4.2 of the proposal the Agency "would have to rate, rank and consider [Agency] employees before considering any applicant from outside the [A]gency[,]" the process "would still permit the [A]gency to solicit candidates from other sources outside the NRC while internal applicants are getting first consideration." Id. The Union asserts that the proposal does not "mandate" the selection of an employee applicant. Id. at 4.

The Union states that section 22.4.3 of the proposal "provides concurrent consideration of employees and outside candidates by the selection official." Response at 6. The Union explains that under the proposal, the Agency would provide first consideration by rating and considering all Agency employees before the selecting official considers applications from any other sources. According to the Union, Proposal 1 expressly permits the agency to solicit applicants from other sources while Agency employees are being considered. The Union also contends that the proposal does not prevent the Agency from evaluating the qualifications of outside candidates while Agency employees are being considered. The Union maintains that Proposal 1 "merely prevents the referral of the outside candidates to the selecting official prior to the completion of the first consideration process." Id. at 5.

The Union notes that the proposal does not limit first consideration to unit employees only but allows the Agency to provide first consideration for all Agency employees. "Thus, the proposal permits the [A]gency to solicit and consider outside applicants simultaneous to the first consideration of [Agency] employees." Id. The Union also notes that section 22.4.4 of the proposal "allows positions demonstrated to hold no attraction to employees to be filled without having to undergo the first consideration requirement of [s]ection 22.4.2 [of the proposal]." Petition at 5. The Union states that under the proposal "[t]he Agency retains complete control over the range of candidates it wishes to consider." Id. at 6. The Union also states that "[t]he Agency retains discretion to determine the qualifications for a position, to determine which candidates are best qualified, and to select." Id. at 7.

The Union contends that because Proposal 1 requires first consideration of employees when filling vacancies, but does not prevent management from timely considering other applicants or expanding the area of consideration once Agency employees have been considered, the proposal does not directly interfere with management's right to select from any appropriate source. Therefore, the Union claims that Proposal 1 is the type of proposal described by the Authority in Naval Weapons Station and Tennessee Air National Guard that does not directly interfere with management's right to select from any appropriate source. The Union asserts that the Agency's reliance on Treasury, BATF v. FLRA is unfounded because, unlike the proposal in Treasury, BATF v. FLRA, Proposal 1 "expressly recognizes the [A]gency's right to solicit candidates from other sources . . . [and] does not prevent the [A]gency from evaluating the qualifications of outside applicants in anticipation of rating them together with employees under [Proposal 1]." Id. at 9-10.

B. Analysis and Conclusions

1. Meaning of the Proposal

Proposal 1 would require the Agency to give all Agency employees--not merely bargaining unit employees--"first consideration" for bargaining unit positions before candidates from any other sources are considered for selection. Section 22.4.1 of Proposal 1 acknowledges the Agency's right, in accordance with applicable laws, to make selections for appointment from among properly ranked and certified candidates for promotion or from any appropriate source.

Section 22.4.2 provides that the Agency shall give first consideration to Agency employees by submitting a list of properly rated and ranked Agency employees to the selecting official before the selecting official considers applications from other sources. Section 22.4.2 provides that first consideration under the proposal "does not preclude [the Agency] from soliciting applicants from other sources." The Union explains that:

First consideration is accomplished by rating and considering all [Agency] employees before the selecting official considers applications from any other sources. Significantly, [Proposal 1] expressly permits the agency to solicit applicants from other sources while [Agency] employees are subject to first consideration.

Response at 5.

Section 22.4.3 of Proposal 1 addresses the situation where the Agency chooses not to select a candidate from the list of Agency employees. That section provides that if first consideration of Agency employees does not result in the selection of a candidate for the position, the Agency will submit a "hybrid list of both [Agency] employees and applicants from other sources." Id. at 3. Section 22.4.3 provides that if the applicants were not previously rated by the panel they must be rated by the panel using, to the extent possible, the same procedures used to rate Agency employees and a "best qualified list will be created from top candidates, whether [Agency] employees or other candidates." Id. The Union states that "[t]his section requires only that employee candidates and other applicants be considered and ranked together, based, to the greatest extent possible, on the same rating factors." Petition at 4.

However, Section 22.4.3 does not mandate that the Agency rate and rank Agency employees and other candidates simultaneously, before the first consideration process. Section 22.4.3 merely provides that if other candidates were not previously rated and ranked with Agency employees, they must be "rated and ranked together based, to the greatest extent possible, on the same rating factors" before Agency employees and the other candidates are submitted together to the selecting official. Id. The Union states the following:

The proposal does not prevent the [A]gency from evaluating the qualifications of outside candidates . . . while [Agency] employees enjoy their first consideration. It merely prevents the referral of the outside candidates to the selecting official prior to the completion of the first consideration process. Thus, the proposal permits the [A]gency to solicit and consider outside applicants simultaneous to the first consideration of [Agency] employees.

Response at 5.

Under Section 22.4.4 of Proposal 1, "positions demonstrated to hold no attraction to employees" are excluded from the first consideration requirement in Proposal 1. Petition at 5.

In sum, by its terms and as explained by the Union, Proposal 1 requires management to give first consideration to Agency employees when filling a vacant position. The proposal permits the Agency to solicit outside candidates at the same time that Agency candidates are solicited. The proposal also permits, but does not require, management to rate and rank outside candidates while internal candidates are being considered so that if the selecting official does not wish to select an Agency employee, a hybrid list of internal and outside candidates can be forwarded for consideration.

2. The Proposal Does Not Directly Interfere with Management's Right to Select under Section 7106(a)(2)(C) of the Statute

Proposals that preclude management from rating and ranking other candidates until after a preliminary placement process for currently employed bargaining unit employees has been completed directly interfere with management's right, when filling a vacant position, to select employees from among properly ranked and certified candidates for promotion or from any other source under section 7106(a)(2)(C) of the Statute. American Federation of Government Employees, Local 2429 and U.S. Department of the Air Force, Headquarters Space Systems Division, Los Angeles, California, 38 FLRA 1469 (1991) (Headquarters Space Systems Division). Those proposals would inhibit management's ability to look at best-qualified candidates from outside the agency. Id. at 1477. See also Tennessee Air National Guard, 35 FLRA at 889-90. However, a proposal that requires an agency to give priority consideration to bargaining unit candidates, but does not prevent the concurrent solicitation and rating and ranking of outside candidates, does not directly interfere with management's right, when filling a vacant position, to select employees from among properly ranked and certified candidates for promotion or from any other source. In other words, a proposal which requires an agency to refer a group of candidates from one source (for example, bargaining unit employees) to the selecting official for first consideration, but which does not preclude the agency from concurrently soliciting, rating and ranking applicants from another source, does not directly interfere with management's right, when filling a vacant position, to select employees from among properly ranked and certified candidates for promotion or from any other source under section 7106(a)(2)(C). Such a proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute. See National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 436-41 (1987) (Chairman Calhoun concurring) (Provision 1, providing that the agency shall consider bargaining unit employees before it considers candidates from other sources when the agency makes selections for a position, found to constitute a negotiable procedure).

We find, based on the wording of the proposal and the Union's explanation, that Proposal 1 would require only that the Agency give priority consideration to Agency employees, and does not prevent the concurrent review--that is, the solicitation, rating and ranking--of candidates from other sources. Thus, Proposal 1 is distinguishable from the proposal in Headquarters Space Systems Division. The proposal in that case required management to consider unit employee candidates before rating and ranking outside candidates. Proposal 1 merely establishes a procedure for the Agency to follow in exercising its right to make selections under section 7106(a)(2)(C). See, for example, National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041, 1055-56 (1987) (Chairman Calhoun concurring) (proposal requiring the agency, among other things, to give priority consideration to certain employees constituted a negotiable procedure under section 7106(b)(2) for the agency to follow when filling vacancies). Therefore, we conclude that Proposal 1 is negotiable under section 7106(b)(2) of the Statute.

Because we have found that Proposal 1 establishes a procedure for the Agency to follow in exercising its rights under section 7106(a)(2)(C) of the Statute and, therefore, that the proposal is negotiable under section 7106(b)(2) of the Statute, we need not address the Union's claim that Proposal 1 is negotiable under section 7106(b)(3) of the Statute as an appropriate arrangement.

IV. Proposal 2

Section 22.20

The NRC has determined that the rating official or rating panel will make written records to explain the reasons why a particular grade was assigned to each rating factor. Such written records will become a part of the files in the promotion or placement actions. At the conclusion of the rating process, the rating official or panel will prepare a "Candidate Evaluation Certification and Selection Record." Such record will be reviewed by the Office of Personnel to assure that the rating official or rating panel has complied with the procedures set forth in this Article. Upon completion of such review, the record will be sent to the selecting official along with the application package submitted by each best qualified candidate. The selecting official shall not receive the numerical rating for any specific candidate on the best qualified list. However, the highest and lowest scores (reflecting the range of scores on the best qualified list) will be provided to the selecting official. Additionally, the selecting official may not receive the names of any candidate for a position who was not rated and ranked high enough to be on the best qualified list.

[Only the underscored portions of the proposal are in dispute.(1)]

A. Positions of the Parties

1. Agency

The Agency states that Proposal 2 "would require that the rating official or rating panel 'make written records to explain the reasons why a particular grade was assigned to each rating factor' in evaluating candidates." Response at 7. The Agency contends that the proposal directly interferes with its rights under section 7106(a) of the Statute to hire, assign work, and make selections for appointments from any other appropriate source and its right under section 7106(b) of the Statute to determine the methods and means of performing work.

The Agency asserts that "the role of rating panels in the selection process and their deliberations are matters which have been exclusively reserved to management by the courts and the Authority." Id. at 7-9 (citing National Federation of Federal Employees, Local 1745 v. FLRA, 828 F.2d 834 (D.C. Cir. 1987) (NFFE v. FLRA); Service Employees International Union, AFL-CIO and Department of Health and Human Services, 34 FLRA 704 (1990)). The Agency claims that "the functioning of the rating panel is wholly a management function." Response at 10 (emphasis in original). The Agency also asserts that "[b]y requiring rating panels to justify their actions with written records[,] the proposal seeks to assign work, to determine how a rating panel will function, including the methods and means of deliberation, and to control the discussions and thought processes of the panel." Id. (emphasis in original). The Agency claims that Proposal 1 interferes with the panel's deliberative process because it "giv[es] validity only to those deliberations which are recorded." Id. (emphasis in original). The Agency argues that the proposal would "directly interfere with management's right to select by qualifying the method by which rating panels function in requiring a written record, [and by] having an intrusive and chilling effect upon free and open discourse between members of rating panels in their deliberations." Id. at 11.

2. Union

The Union contends that Proposal 2 constitutes a negotiable merit promotion procedure under section 7106(b)(2) of the Statute. The Union claims that the Agency's reliance on NFFE v. FLRA is misplaced. The Union asserts that Proposal 2 does not "contemplate union participation in the panel's rating process[,]" as was the case in NFFE v. FLRA. Response at 11. The Union states that the proposal in NFFE v. FLRA "create[d] the possibility that the Union could persuade or sway a panel member, inspire a panel member, provoke a deadlock or otherwise assume the role of a decision maker." Id. at 12. The Union asserts that "[d]espite the [A]gency's efforts to create the impression of union interference in the rating process, the instant proposal in no way interferes with the panel and leaves the 'wholly management' functioning of the panel intact." Id.

The Union states that the Agency's argument that recording the rating panel's deliberations will result in a chilling effect on the panel members is "unconvincing." Id. at 13. The Union asserts that "[t]he proposal does not require the panel to adopt any particular way of rating employees. Neither does the proposal require the panel to assign any specific rating to any employees. The rating of employees is left exclusively to the rating panel, with no interference from or influence by the Union." Id. According to the Union, Proposal 2 "does nothing more than require the panel to have its rationale recorded. The recordation could take place simultaneous to the rating process or at the conclusion of the rating process. Either way, the recording of the panel's rationale is only ancillary to the decision making process." Id. The Union claims that "[r]ecording the panel's deliberations is entirely consistent" with Federal Personnel Manual (FPM) chapter 335, subchapter 1-4, Requirement 5.(2) Id. at 13.

The Union contends that Proposal 2 does not interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. The Union asserts that "the proposal does not specify that the task of recording the panel's rationale be performed by any particular non-bargaining unit employee." Id. at 14. The Union states that Proposal 2 "permits management to exercise its statutory discretion to assign the task of serving on the panel and recording the panel's deliberations to whomever it elects. It does not assign the task to particular individuals or organizational segments." Id.

The Union also contends that the Agency's assertion that the proposal interferes with its right to determine the methods and means of performing work is "undeveloped" and should be rejected. Id. at 11. The Union argues that in order for Proposal 2 to be nonnegotiable under section 7106(b)(1) of the Statute, it must affect the method or means chosen by the Agency to accomplish or further the performance of its work. The Union asserts that the method and means also must be directly and integrally related to the performance of the Agency's work. The Union argues that the Agency has offered no explanation of how recording the rationale of a promotion panel is directly and integrally related to the performance of its mission-related work.

Finally, the Union contends that if the proposal is found to interfere with a management right, the proposal is nonetheless an appropriate arrangement because "[r]equiring the panel's rationale [for selection] to be recorded has only minimal impact on the ability of the [A]gency to select or assign work." Response at 17. The Union argues that the proposal "does not require the [A]gency to act in any particular fashion and is merely a ministerial function." Id. The Union argues that the requirement of the proposal that the rating officials record the reasons for applicant ratings "is essential to evaluate whether the rating process was properly conducted." Petition at 6. Further, the Union asserts that an employee "adversely affected by arbitrary, capricious or illegal decision making has access to a record of the decision making process to support his claim in a grievance or statutory appeal." Id. Accordingly, the Union concludes that the impact on the Agency is far outweighed by the benefits derived by the employees from the requirement that the panel record the reasons for each rating.

B. Analysis and Conclusions

For the following reasons, we conclude that Proposal 2 is negotiable.

Proposal 2 requires Agency rating panels and officials to prepare a written record of their reasons for assigning a particular grade on each rating factor for each candidate. The proposal provides that the records will be submitted to the selecting official as part of the application package of each "best qualified" candidate. The proposal provides that the numerical rating as to each candidate on the best qualified list shall not be submitted to the selecting official. Under the proposal, only the highest and lowest numerical rating of candidates on the best qualified list (reflecting the range of scores) shall be submitted to the selecting official. Proposal 2 does not provide for Union participation as a member or an observer on an Agency rating and ranking panel. Proposal 2 also does not involve the Union in the deliberations of Agency rating panels. Thus, the Agency's reliance on NFFE v. FLRA, and the cases cited in its brief concerning union participation on agency rating panels, is misplaced.

1. Management's Right to Select

Management's authority to fill positions includes the right, under section 7106(a)(2)(C)(i) of the Statute, to make selections for appointments from among properly ranked and certified candidates or, under section 7106(a)(2)(C)(ii), to select from any other appropriate source. See Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1415 (1991); Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 135 (1988) (Provision 3). The Authority has held that "the deliberative process associated with the exercise of management's section 7106 rights does not prohibit the disclosure of information relied on in exercising those rights" or statements setting forth the reasons for management's determinations with regard to the exercise of those rights. Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 813-14 (1991), petition for review filed sub nom. Department of Commerce, Patent and Trademark Office v. FLRA, No. 91-1179 (D.C. Cir. April 17, 1991).

The requirement in Proposal 2 that the Agency make a written record explaining the reasons why a particular grade was assigned to a rating factor by the rating officials does not affect the ability of the rating officials to deliberate on and discuss the ratings given each candidate. The requirement of a written record also does not prevent the Agency from considering any candidate for selection or establish any substantive criteria that the Agency must consider in the rating and ranking or selection process. We find that by requiring a written explanation of the rating officials' grade assignments as to each rating factor, Proposal 2 merely establishes a procedure for the Agency to follow in exercising its rights under section 7106(a)(2)(C) of the Statute. Proposals requiring an agency to provide a statement setting forth the reasons for the agency's action are negotiable procedures under section 7106(b)(2) of the Statute. See, for example, AFSCME, Local 2027 and ACTION, 27 FLRA 191, 194-97 (1987) (Chairman Calhoun, concurring).

2. Management's Right to Assign Work

We reject the Agency's argument that "[b]y requiring rating panels to justify their actions with written records[,] the proposal seeks to assign work[.]" Statement at 10 (emphasis in original). The proposal provides that a written record will be prepared by the rating official or rating panel. The proposal is premised on the Union's undisputed assertion that the Agency "has determined that the rating official or rating panel will make written records to explain the reasons why a particular grade has been assigned to each rating factor." Petition at 5. The Union states that the proposal is intended to "require[] the Agency to perform a task, the recording of the panel's rationale, but allows the [A]gency . . . to exercise its discretion to assign the task of serving on the panel and recording the panel's deliberations to whomever it elects." Response at 14.

We note that the Agency does not dispute the Union's claim that Proposal 2 reflects the requirements of the rating and ranking process already established by the Agency. We also note that the proposal does not specify which employees will rate and rank candidates. Under the proposal, the Agency retains its ability to designate who will be on a ranking panel. Further, the proposal preserves the Agency's right to specify, from among the employees on the panel, who will perform the task of recording the rating panel's conclusions.

Proposals establishing a procedure that an agency will follow in exercising its management rights under section 7106(a) are not nonnegotiable simply because they require the agency to assign someone to implement the procedure. National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA 557, 563-64 (1988) (NLRB). See also National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 367-68 (1990) (Naval Plant Representative Office).

Because Proposal 2 establishes a procedure that the Agency will follow in exercising its right to select and because the proposal does not impermissibly specify who will implement the procedure, we find, consistent with NLRB and Naval Plant Representative Office, that the proposal does not directly interfere with management's right to assign work. See also American Federation of Government Employees, AFL-CIO, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 42 FLRA 599, 613-15 (1991) (Immigration and Naturalization Service); U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, Local 1760, 36 FLRA 466, 473-74 (1990) (Northeastern Program Service Center).

3. Management's Right to Determine the Methods and Means of Performing Work

We reject the Agency's argument that by requiring rating panels to "justify their actions with written records," Proposal 2 concerns a matter related to the determination of the methods and means of performing work under section 7106(b)(1) of the Statute. Statement at 10. The Agency argues that Proposal 2 seeks "to determine how a rating panel will function, including its methods and means of deliberation, and to control the discussions and thought processes of the panel, giving validity only to those deliberations which are recorded." Id. (emphasis in original).

In order to demonstrate whether a proposal directly interferes with management's right to determine the methods and means of performing work, an agency must show that: (1) there is a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. American Federation of Government Employees, National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C., 40 FLRA 1052, 1066 (1991) (U.S. Department of Veterans Affairs).

The Agency has made no attempt to demonstrate a direct and integral relationship between the requirement for written rating records and the accomplishment of its mission and none is apparent to us. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet its burden acts at its peril. Northeastern Program Service Center, 36 FLRA at 475 (1990). Consequently, we find that the Agency has failed to provide a record to support a conclusion that requiring the Agency to make a written record of the reasons for specific ratings constitutes a determination of the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. We conclude that the proposal does not directly interfere with management's rights under section 7106(b)(1). See id. at 474-75.

Because we have found that Proposal 2 is a negotiable procedure under section 7106(b)(2) of the Statute, we need not address the Union's claim that Proposal 2 is an appropriate arrangement.

V. Proposal 3

Section 45 (Drug Policy Proposal)

Stays

Any disciplinary action or adverse action against an employee shall be stayed until the completion of the grievance procedure or statutory procedure or for a period of ninety (90) days, whichever comes first. This section does not prevent NRC from exercising its right to reassign an employee during the stay if the employee occupies a position in which he may be a danger to himself or others.

A. Positions of the Parties

1. Agency

The Agency states that notwithstanding the portion of the proposal allowing reassignment, Proposal 3 would require that any disciplinary or adverse action against an employee be stayed for a period or 90 days or until the completion of the grievance procedure, whichever comes first. The Agency asserts that the proposal causes a delay in the exercise of management's right to impose discipline. The Agency states that the courts have held that where a delay in the exercise of a management right "'so affects the environment within which the agency is allowed to act that it equates to a substantive restraint on the Agency's ability to act,'" a proposal imposing that delay directly interferes with the exercise of the right. Statement at 14 (quoting Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505, 1512 (D.C. Cir. 1989) (Bureau of Land Management) and also citing Treasury, BATF v. FLRA, 857 F.2d at 821). The Agency also asserts that "it has been held that a proposed delay which would curtail the agency's ability to implement a program is nonnegotiable." Id. (citing Department of the Treasury, Internal Revenue Service v. FLRA, 862 F.2d 880 (D.C. Cir. 1989) (IRS v. FLRA)).

The Agency contends that the proposal is inconsistent with law, as established in case precedent and the Statute. The Agency argues that "[i]n the present case the proposal for a delay runs afoul of the [C]ircuit [C]ourt[s'] decisions both as to whether a suspension or disciplinary action will be taken and as to when it will be taken by the agency." Id. at 14-15. In support of its argument, the Agency cites Bureau of Land Management, 873 F.2d at 1512; Treasury, BATF v. FLRA, 857 F.2d at 821; and IRS v. FLRA, 862 F.2d at 880. The Agency states that "the interjection of a delay in disciplining employees . . . for a drug abuse violation would effectively delay and curtail the implementation of an effective and efficient drug testing program in the [A]gency as required by the Executive Order." Id. at 15. The Agency notes that the Authority "has issued a number of decisions regarding delaying discipline which are consistent with the Agency's views that such [a proposal as Proposal 3] would curtail discipline and internal security[,]" and is, therefore, nonnegotiable. Id. at 15-17. In particular, the Agency cites National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105 (1986) (Eastern Mapping Agency), where, according to the Agency, the Authority recognized an agency's right to act immediately to terminate an employee under 5 U.S.C. § 7513(b)(1). The Agency argues that "in limiting the [A]gency's action to reassignment during the stay, [Proposal 3] would limit the [A]gency's discretion to determine an appropriate disciplinary penalty to a minimum penalty and[,] therefore[,] . . . directly interfer[es] with management's right to discipline under section 7106(a)(2)(A) of the Statute." Id. at 18 (citations omitted).

The Agency also argues, citing American Federation of Government Employees, Council of Marine Corps Locals (C-240) and Department of the Navy, U.S. Marine Corps, 35 FLRA 1023, 1029-30 (1990) (U.S. Marine Corps) and Eastern Mapping Agency, that Proposal 3 is nonnegotiable under section 7106(a) and is inconsistent with section 7101(b) of the Statute because it would allow employees to refuse, with impunity, to carry out their work assignments and the Agency would have no effective method of holding employees accountable for their work during the period of the stay.

The Agency also contends that the proposal is inconsistent with Executive Order 12564.(3) The Agency states that section 5(c) of the Executive Order requires that the Agency must, at a minimum, temporarily remove employees in sensitive positions if the employee is found to use illegal drugs. The Agency also states that section 5(b) of the Executive Order requires the Agency to take disciplinary action against employees who are found to use illegal drugs unless certain exceptions related to rehabilitation apply. The Agency concludes that Proposal 3 "would not only excessively curtail the [A]gency's ability to discipline and to determine its security program, but it also would contravene the provisions of the Executive Order that require prompt and decisive disciplinary action to be taken." Id. at 17.

2. Union

The Union asserts that "[a]mple authority and court precedent dictate that [Proposal 3] is a negotiable procedure" under section 7106(b)(2) of the Statute. Response at 18.

The Union claims that the proposal does not prevent the Agency from acting, but merely delays the Agency's exercise of its right to implement a disciplinary action. The Union also claims that the proposal would not prevent the Agency from taking disciplinary action based on other types of misconduct by an employee during the stay. The Union states that the proposal "allows the [A]gency to reassign employees during the period covered by the stay if they occupy positions in which they [will] be a danger to themselves or to others." Id. at 21. The Union asserts that "[t]he Authority and courts have held proposals which created stays of disciplinary and adverse actions to be negotiable." Id. at 19.

The Union argues that the court cases relied on by the Agency in support of its allegation of nonnegotiability present circumstances "drastically different" from the circumstances presented in Proposal 3. Id. at 20. The Union states that in Treasury, BATF v. FLRA and IRS v. FLRA "the [c]ourt dealt with proposals which prevented the initiation of activities wholly reserved to management" and which "would have resulted in the virtual nullification of the agency's right to engage in any meaningful exercise of its right." Id. The Union argues that Proposal 3 "merely seeks to allow a reasonable period of time for the remedial processes to conclude before the [A]gency exercises its rights." Id. According to the Union, the proposal "does not prevent the [A]gency from implementing a program or preclude the [A]gency from engaging in actions which are unreviewable." Id. at 20-21.

The Union also argues that the Agency misapplies Authority precedent in claiming that Proposal 3 is not a negotiable procedure. The Union states that the proposal "does not override or otherwise contravene" 5 U.S.C. § 7513(b)(1) and that "[c]orrect application of 5 U.S.C. § 7513(b)(1) would supersede operation of [Proposal 3]."(4) Id. at 21. The Union claims that the proposal is not inconsistent with section 7513(b)(1), but, rather, "simply does not reference the statute." Id. The Union asserts that "'mere silence with respect to related legal requirements does not render a provision outside the duty to bargain unless the provision is inconsistent with those requirements.'" Id. at 22 (quoting International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 135 (1987)).

The Union argues that the Agency "misapplies" Eastern Mapping Agency. Response at 21. The Union maintains that the proposal at issue in Eastern Mapping Agency is distinguishable from the proposal in this case because it applied only to removals and allowed an employee to remain in a pay status after a final decision by the Agency to remove the employee. The Union states that the stay protection in Proposal 3 is only activated if the employee grieves the Agency's action or the Agency's decision is the subject of an administrative appeal. The Union asserts that Proposal 3, unlike the proposal in Eastern Mapping Agency, does not delay discipline in order to allow an employee to "simply enjoy another ninety (90) days of paid service." Id. at 22.

Finally, the Union asserts that the proposal does not conflict with Executive Order 12564. The Union asserts that "[t]he [A]gency misrepresents the operation of Section 5(b) and 5(c) to require the immediate imposition of disciplinary action against an employee in a sensitive position who has been found to have used illegal drugs." Id. at 24. The Union states that section 5(b) only requires agencies to initiate action to discipline employees found to have used illegal drugs. The Union argues that Proposal 3 "does not prevent the [A]gency from initiating disciplinary action. Indeed, the provision takes effect only after the agency has initiated disciplinary action." Id. at 25 (emphasis in original). The Union states that section 5(c) of the Executive Order "simply prohibits an agency from allowing employees to remain on duty in a sensitive position prior to completing a rehabilitation program. It does not require the immediate suspension or removal of the employee from employment." Id. The Union asserts that "[t]he instant proposal is once again in keeping with Section 5(c) since it permits the [A]gency to reassign any employee during a stay if the employee may be a danger to himself or others. Thus, the [A]gency retains the authority to remove an employee from a sensitive position as contemplated in Section 5(c)." Id.

The Union argues that, in the event the proposal is found to interfere with a management right, the proposal nevertheless constitutes an appropriate arrangement for employees adversely affected by the exercise of management's right to impose a penalty for illegal drug use. The Union maintains that "imposition of a penalty for illegal drug use impacts dramatically on an employee." Id. at 27. The Union asserts that Proposal 3 "minimally impacts management's right to discipline and to determine its internal security" because the stay contemplated by the proposal is not indefinite. Id. The Union states that "[a]n employee's entire life may be harmed by the wrongful imposition of a penalty for illegal drug use." Id. at 27-28. The Union asserts that the Agency is free during the 90-day period to initiate disciplinary action if an employee engages in misconduct independent of the allegation of illegal drug use. The Union also asserts that "the proposal allows management to exercise its right to reassign any employee who poses a threat to himself or to others." Id. at 27. According to the Union, "[t]he benefit of a stay to an employee who is wrongfully accused of illegal drug use far outweighs its negative impact on management's rights." Id.

B. Analysis and Conclusions

Proposal 3 requires the Agency to stay a disciplinary or adverse action against an employee who is found to use illegal drugs, until the completion of the negotiated grievance procedure or a statutory appeals procedure, or for 90 days, whichever occurs earlier. The Union states that Proposal 3 "addresses situations where the [A]gency has proposed to take disciplinary action against an employee on the basis of a positive drug test. It would not . . . prevent the [A]gency from taking disciplinary action based on other types of misconduct by an employee during the stay." Id. at 21.

1. Executive Order 12564

Based on the plain wording of Proposal 3 and the Union's explanation of the proposal, we reject the Agency's assertions that Proposal 3 conflicts with sections 5(b) and (c) of Executive Order 12564.

Section 5(b) of Executive Order 12564 provides that agencies shall initiate action to discipline an employee who is found to use illegal drugs, except where the employee: (1) voluntarily identifies himself or herself as a user of illegal drugs, or volunteers for drug testing pursuant to section 3(b) of the Executive Order before being identified as an illegal drug user through other means; (2) obtains counseling or rehabilitation through an Employee Assistance Program; and (3) thereafter refrains from using illegal drugs.

Based on the wording of the proposal and the record, we find that Proposal 3 does not preclude the Agency from initiating a disciplinary or adverse action against an employee who is found to use illegal drugs. The wording of Proposal 3 indicates that the proposal takes effect after the Agency initiates a disciplinary action and the employee files an appeal under contractual or statutory appeal procedures. As the Union states, "the [proposal] takes effect only after the [A]gency has initiated disciplinary action." Response at 25 (emphasis in original). Inasmuch as Proposal 3 does not preclude the Agency from initiating a disciplinary action, we conclude that Proposal 3 is consistent with section 5(b) of the Executive Order.

Section 5(c) of the Executive Order provides that agencies shall not allow any employee to remain on duty in a sensitive position who is found to use illegal drugs. Section 5(c) also provides that an agency may, in its discretion, allow an employee to return to duty to a sensitive position if it is determined that this action would not pose a danger to public health or safety or the national security.

Based on the plain wording of the proposal, we find that the proposal would not prevent the Agency from taking administrative action, including removing employees from sensitive positions pending the resolution of the employees' grievances or statutory appeals. In fact, the proposal provides that the Agency is not prevented "from exercising its right to reassign an employee during a stay if the employee occupies a position in which he may be a danger to himself or others." The Union states that "[s]ince some members of the bargaining unit occupy positions in which a person operating at a diminished capacity could pose a threat to himself or others, the proposal allows the [A]gency to reassign such employees to less sensitive duties." Petition at 7. By stating that the Agency may reassign an employee who could "pose a threat to himself or others," the Union acknowledges the Agency's authority under section 5(c) of the Executive Order to reassign employees who "pose a danger to public health or safety or the national security." The wording in the proposal is substantively the same as the wording in section 5(c). Therefore, we find that the proposal allows the Agency to reassign employees for the reasons set forth in section 5(c) of the Executive Order.

Because we find that Proposal 3 allows the Agency to exercise its right to remove an employee from a sensitive position in the circumstances described in section 5(c) of the Executive Order, we conclude that Proposal 3 is consistent with section 5(c) of Executive Order 12564. See American Federation of Government Employees, Local 1603 and U.S. Department of the Navy, Naval Air Station, Patuxent River, Maryland, 36 FLRA 162, 165-67 (1990) (proposal informing employees that enrolling in an employee assistance program would not immunize them from subsequent disciplinary action was consistent with, among other things, section 5(c) of Executive Order 12564). Compare American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1065-68 (1988), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, Case No. 88-7408 (9th Cir. Feb. 7, 1989) (proposal preventing the agency from taking administrative action against employees with alcohol or drug problems until employees were afforded reasonable accommodation and rehabilitative assistance found outside the duty to bargain because it was inconsistent with Executive Order 12564).

2. Management's Right to Determine Internal Security Practices

It is well established that an agency's use of random testing as a part of its drug testing program constitutes an exercise of management's right to determine its internal security practices. National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046 (1988) (Rock Island I), remanded as to other matters 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. Aberdeen Proving Ground, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 936 (1990) (Rock Island III).

The Agency claims that Proposal 3 "directly interferes with the [A]gency's internal security program which, going hand in hand with the ability to discipline may be required to be invoked in appropriate cases." Statement at 15. The Agency argues that "the interjection of a delay in disciplining employees . . . would effectively delay and curtail the implementation of an effective and efficient drug testing program in the Agency as required by [Executive Order 12564]." Id.

Proposal 3 addresses only disciplinary actions against employees for illegal drug use that is discovered through the drug testing program established by the Agency. The proposal does not prevent the Agency from establishing or implementing a drug testing program. The Agency remains free to structure its drug testing program as it chooses. The proposal also does not prevent management from testing the employee, on any ground provided in the Agency's drug testing plan, for illegal drug use during the stay period.

Moreover, to the extent that the proposal would require the Agency to retain an employee found to use illegal drugs in a duty status for the period covered by the stay, thus potentially increasing the risk to its security, the proposal does not preclude management from taking other administrative actions to reduce or eliminate that risk. As we noted above, the proposal specifically provides that the Agency is free to exercise its right to reassign an employee during a stay if the employee occupies a position in which he or she may be a danger to himself or herself or to others.

Consequently, we find that the Agency has failed to demonstrate that by providing for a stay of a disciplinary or adverse action for illegal drug use for a maximum of 90 days or pending the completion of the appropriate grievance or appeals procedures, Proposal 3 directly interferes with the Agency's ability to establish and implement a drug testing program and, thereby, directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. Moreover, as we found above, Proposal 3 allows the Agency to initiate discipline consistent with section 5(b) of the Executive Order and reassign employees consistent with section 5(c) of the Executive Order.

3. Management's Right to Discipline

The Agency claims that the Proposal 3 directly interferes with the Agency's right to take disciplinary action because it would preclude the Agency from taking immediate disciplinary action against an employee, under 5 U.S.C. § 7513(b)(1), where there is reasonable cause to believe that the employee has committed a crime punishable by imprisonment. However, mere silence in the wording of the proposal with respect to the requirements in 5 U.S.C. § 7513(b)(1) does not render the proposal outside the duty to bargain unless the proposal is inconsistent with those requirements. International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 134-35 (1987). See also National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1140 (1991). In its response, the Union "acknowledges that [Proposal 3] does not override or otherwise contravene 5 U.S.C. § 7513(b)(1). Correct application of 5 U.S.C. § 7513(b)(1) would supersede operation of [Proposal 3]." Response at 21. Because the Union expressly states that Proposal 3 is intended to be applied consistent with 5 U.S.C. § 7513(b)(1) and because the wording of the proposal is not inconsistent with the Union's statement, we find that Proposal 3 would not preclude the Agency from taking immediate disciplinary action against an employee under 5 U.S.C. § 7513(b)(1). Consequently, we conclude that, in this respect, Proposal 3 does not directly interfere with the Agency's right to take disciplinary action consistent with 5 U.S.C. § 7513(b)(1).

For this reason, Proposal 3 is distinguishable from the proposal in Eastern Mapping Agency relied on by the Agency. The proposal in Eastern Mapping Agency required a 10-day delay in the implementation of any disciplinary action resulting in the removal of an employee. The proposal did not allow the agency to take immediate disciplinary action against an employee under 5 U.S.C. § 7513(b)(1) and the union did not indicate that application of the proposal would be suspended under those circumstances. Similarly, Proposal 3 is distinguishable from our decision concerning Proposal 2(d) in 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, 320-22 (1990), petition for review filed sub nom. United States Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, No. 91-1031 (D.C. Cir. Jan. 16, 1991). Proposal 2(d) precluded the Agency from imposing a proposed disciplinary action pending an appeal through the negotiated grievance procedure, regardless of the reason for the discipline or adverse action. We found that the proposal directly and excessively interfered with the agency's right to discipline under section 7106(a)(2)(A) of the Statute because it provided for a stay of discipline regardless of the reason for the disciplinary or adverse action and did not permit the agency to take immediate disciplinary action in the circumstances set forth in 5 U.S.C. § 7513(b)(1). As noted above, the proposal in this case would not prevent management from taking immediate action.

The Agency also argues, citing U.S. Marine Corps and Eastern Mapping Agency, that Proposal 3 would allow employees to refuse, with impunity, to carry out their work assignments and the Agency would have no effective method of holding employees accountable for their work during the period of the stay. The Agency concludes that, for this reason, Proposal 3 is "'inimical to the effective conduct of public business'" and, therefore, is nonnegotiable under section 7106(a) and is inconsistent with section 7101(b) of the Statute. Statement at 17 (quoting U.S. Marine Corps, 35 FLRA at 1029). We reject the Agency's argument.

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, 205-06 (1991) (United States Merchant Marine Academy), we reexamined and rejected the Authority's conclusion in Eastern Mapping Agency that a proposal providing affected employees with notice of a decision to take adverse action against them directly and excessively interferes with management's rights to assign work and direct employees because management would have no effective method of holding those employees accountable for their work during the notice period. We stated that we would no longer follow the Authority's conclusions in this respect in Eastern Mapping Agency because we concluded that notice proposals that affected the timing of a removal action, but did not restrict management's right to respond appropriately to an employee's refusal to work during the period covered by the notice, did not directly interfere with managment's rights to direct employees and assign work.

Although Proposal 3 concerns a stay of a proposed disciplinary action and the proposal in Eastern Mapping Agency concerned notice of a proposed disciplinary action, the Agency's arguments as to the effect of the stay period on its ability to hold employees subject to the proposed discipline accountable for their work are the same as those we considered and rejected in United States Merchant Marine Academy. We see no difference in this regard between a stay period and a notice period. Both a stay and prior notice concern only the timing of a disciplinary action. Moreover, just as the proposal in Eastern Mapping Agency did not affect management's ability to respond appropriately to an employee's refusal to work, Proposal 3 would not restrict management's ability to respond to an employee's refusal to work during the stay period. Consequently, we conclude that Proposal 3 does not directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

The Agency also claims that the proposal is inconsistent with section 7101(b) of the Statute. Because that claim is based on the same concerns as were involved in the Agency's arguments regarding employee accountability during the stay period, we reject that claim for the same reasons discussed above, namely, that the proposal does not preclude management from responding appropriately to an employee's refusal to work. Consequently, we find that the proposal would not prevent the Agency from accomplishing its work in a manner that is consistent with an effective and efficient Government.

The Agency also argues that "the proposal for a delay in disciplinary action related to drug testing runs afoul of the [C]ircuit [C]ourt[s'] decisions both as to whether a suspension or disciplinary action will be taken and as to when it will be taken by the [A]gency." Statement at 14-15. In support of its argument, the Agency cites Bureau of Land Management, 873 F.2d at 1512; Treasury, BATF v. FLRA, 857 F.2d at 821; and IRS v. FLRA, 862 F.2d at 880. The Agency interprets those cases as holding that a proposed delay in the implementation of a management right that "'equates to a substantive restraint on the agency's ability to act,'" or delay that would curtail an agency's ability to implement a program, is nonnegotiable. Id. at 14 (quoting Bureau of Land Management, 873 F.2d at 1512 and Treasury, BATF v. FLRA, 857 F.2d at 821). The Agency argues that the Union's proposal provides for just that kind of delay. The Agency asserts that the proposal "would 'freeze' the agency's ability to act promptly and decisively in the pursuit of a drug-free environment." Statement at 15.

Even assuming that the delay imposed by the proposal on management's right to discipline would directly interfere with the exercise of that right, we find, consistent with the Union's argument that the proposal constitutes an appropriate arrangement, that the delay would not excessively interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. See American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 434 (1991) (Justice Management Division). See also National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA No. 78 (1991), slip op. at 5-7 (Army Information Systems Command).

In determining whether a proposal is an appropriate arrangement, we determine whether the proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. Kansas Army National Guard, 21 FLRA at 31-33.

It is clear that, consistent with the Union's argument, Proposal 3 is intended as an arrangement for adversely affected employees. The Union states that "imposition of a penalty for illegal drug use impacts dramatically on an employee. It could result in acquiring a disciplinary record, losing pay during a suspension, or even termination." Response at 27. The Union asserts that Proposal 3 "seeks to avoid these types of dire consequences for employees who have been wrongfully or mistakenly accused of illegal drug use. By staying the imposition of the penalty until the selected appeals process has had a reasonable time to run its course, [Proposal 3] protects a wrongfully accused employee from the harmful effects of an improper penalty." Id. The proposal would benefit employees by giving them a reasonable opportunity to challenge an alleged unjust disciplinary action through the appropriate grievance or statutory procedures before the employee is forced to suffer the consequences of the discipline.

With respect to the burden imposed by the proposal on management's right to discipline employees under its drug testing program, we note that the proposal would stay disciplinary action only for illegal drug use and would delay the imposition of the discipline only for a maximum of 90 days if an employee files a grievance or an appeal concerning that disciplinary action. Where the discipline against the employee is sustained or the 90-day period expires, the Agency may effectuate the discipline. We also note that, under the proposal, the Agency can immediately remove an employee under 5 U.S.C. § 7513(b)(1) if the Agency has reasonable cause to believe that the employee has committed a crime punishable by imprisonment, can reassign an employee from a sensitive position if the employee is a threat to himself or herself or to others, and can discipline an employee for other misconduct during the period covered by the stay. The Agency's right to initiate disciplinary action for misconduct independent of the allegation of illegal drug use would not be affected by the proposal. Consequently, under the proposal, the Agency remains free to discipline the employee for other instances of misconduct and to respond to the consequences, if any, of the employee's illegal drug use.

We find that the benefit to employees of being able to continue working for 90 days, or until grievance or appellate procedures are concluded, outweighs the burden that Proposal 3 imposes on the Agency by restricting the Agency's ability, except where there is reasonable cause to believe that the employee has committed a crime punishable by imprisonment, to immediately effectuate its proposed discipline. Because, under the proposal, management retains the ability to respond to misconduct by the employee and to any consequences in the workplace which might occur if the employee uses illegal drugs, the effect of the proposal on management is not as significant as the protection afforded employees, particularly those employees who are subsequently determined to have been improperly disciplined for drug use.

Consequently, we conclude that the proposal would not excessively interfere with the Agency's right to discipline employees. Accordingly, we conclude that Proposal 3 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Because we conclude that Proposal 3 is an appropriate arrangement, we find that the court's decisions in BATF and IRS are not dispositive.

We note the Agency's claim that because its "internal security program . . . go[es] hand in hand with the ability to discipline" employees under the drug testing program, Proposal 3 excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. Statement at 15. However, for the reasons discussed above regarding the Agency's right to discipline employees, we conclude that Proposal 3 does not directly interfere with the Agency's internal security program. Moreover, even assuming that Proposal 3 directly interferes with management's right to determine its internal security practices, for the same reasons, we reject the Agency's contention that Proposal 3 excessively interferes with that right.

VI. Proposal 4

Section 15 (Drug Policy Proposal)

C. [1] When an employee is directed to appear for urine specimen collection because of reasonable suspicion, he/she will be given written notification. [2] To the extent practicable, the agency will inform the employee of the basis for the reasonable suspicion. [3] The agency will also inform the employee that he/she may consult with NTEU before the test is administered.

E. [1] When an employee receives notice that he/she has been selected for reasonable suspicion testing, the employee will be given the opportunity to respond to the Office Director/ Regional Administrator before the test is administered. [2] If the employee successfully explains his/her circumstances, his/her personnel files will be purged of any reference to the reasonable suspicion test.

[The sentences have been numbered for the convenience of the reader.]

A. Positions of the Parties

1. Agency

According to the Agency, Proposal 4 "seeks to interject a process whereby the [A]gency's determination of 'reasonable suspicion' may be challenged before the drug testing is administered by the [A]gency." Statement at 18. The Agency argues that such a process would be inconsistent with the Agency's authority to make a reasonable suspicion determination under Executive Order 12564. The Agency also asserts that such a process would directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute and to determine the methods and means used in implementing its drug testing program under section 7106(b)(1) of the Statute.

The Agency claims that Section C of Proposal 4 requires notice to the employee that the employee may consult with the Union prior to the drug test and, implicit in that right, the opportunity to consult with the Union. The Agency asserts that Section C is nonnegotiable because, by causing delay in the testing to allow employees to consult with the Union, Section C directly interferes with the Agency's rights to establish its internal security practices and take disciplinary action against employees, and is contrary to Government-wide regulation and Executive Order 12564.

The Agency argues that Section E of Proposal 4 is nonnegotiable because of the delay in testing which will necessarily result. According to the Agency, "[t]he delay in testing is exacerbated when this proposal is combined with the [U]nion's proposal in [Section] C." Id. at 19.

The Agency claims that Proposal 4 provides notice to employees prior to the drug test, which would serve to delay the actual test. The Agency states that the proposal provides not only for written notice to the employee, but also requires that this notice be provided in advance of the test, because the employee, upon receiving the notice, is given the right to consult with the Union and an opportunity to respond to the Office Director or Regional Administrator.

The Agency maintains that implementation of the proposal would cause delay in the testing of those suspected of using drugs. The Agency argues that the delay in testing resulting from the proposal would "provide sufficient time for the employee to cleanse his/her system of the drugs through temporary abstinence." Id. at 20. The Agency concludes that the proposal would prevent detection of illegal drug use and, therefore, is nonnegotiable because it conflicts with management's right to determine its internal security practices. The Agency argues that, for these reasons, the proposal also directly interferes with management's right to determine the methods and means of performing work.

The Agency also claims that Section E of Proposal 4 directly interferes with the Agency's rights to establish internal security practices and take disciplinary action against employees under section 7106(a)(2)(A) of the Statute. The Agency argues that the right to discipline includes the right to investigate to determine whether discipline is justified. The Agency claims that by delaying testing, Proposal 4 would limit the Agency's use of appropriate investigative techniques to uncover conduct which would be subject to disciplinary action.

The Agency also claims that Proposal 4 is inconsistent with Executive Order 12564 and FPM Letter 792-16.(5)

According to the Agency, Proposal 4 is inconsistent with the Executive Order and the FPM Letter because, under the Order and the Letter: (1) no advance notice is intended for employees subject to reasonable suspicion testing; (2) management determines whether there is reasonable suspicion to test; and (3) the employee's opportunity to provide a legitimate rationale for a positive test result occurs after there has been a positive test. The Agency asserts that because Proposal 4 provides for advance notice of a reasonable suspicion test and gives an employee the right to respond before the test, the proposal "conflicts with the spirit if not the specific language of both the Executive Order and FPM Letter 792-16." Id. at 23.

The Agency maintains that a drug test is not an examination within the meaning of section 7114(a)(2)(B) of the Statute and, therefore, the Union has no right to be notified or to be present. The Agency relies on a response from the Authority's Office of the General Counsel to a regional director's request for case handling advice wherein it was determined that an agency is not obliged to allow an employee to have a union representative present when providing a sample for a random drug test.

2. Union

The Union states that Sections C and E of Proposal 4 are intended to provide due process for employees who are subjected to drug testing based on the Agency's reasonable suspicion of illegal drug use.

According to the Union, Section C of Proposal 4 is a negotiable procedure which does not prevent the Agency from acting in furtherance of reasonable suspicion drug testing. The Union states that Section C provides a procedure whereby employees may be notified of their obligation to appear for testing, the reason they are being tested, and their opportunity to consult with the Union before the test. According to the Union, Section C does not directly interfere with any management right. Rather, consistent with section 3(c)(3) of FPM Letter 792-16, the proposal provides a record of the Agency's reason for the test.

The Union also states that the Agency's arguments regarding the applicability of section 7114(a)(2)(B) are misplaced. According to the Union, Section C of Proposal 4 "does not contemplate having a [U]nion representative present when an employee provides a specimen for a drug test." Response at 30. The Union maintains that the proposal merely provides an opportunity for the employee to consult with a Union representative before the test is administered.

The Union asserts that the Agency's concern over the proposal causing a potential delay is unfounded. The Union recognizes that "an excessive delay caused by consultation rights may compromise the [A]gency's ability to detect illegal drug use." Id. However, the Union states that

[i]n most instances, the delay will be minimal since the employee will have quick personal or telephonic access to a Union representative. In those instances where a representative cannot be made available within a reasonable period of time, the test may continue without [U]nion consultation. Any other result would serve to nullify the purpose of the test.

Id.

In the alternative, the Union argues that if the Authority determines that Section C of Proposal 4 directly interferes with management's rights, then Section C should be viewed as an appropriate arrangement for employees adversely affected by the exercise of the Agency's management rights. The Union argues that section C does not excessively interfere with the Agency's rights because the Agency "must only reduce to writing a notice to appear for testing and record, if practicable, the reasons for the testing." Id. at 32. The Union asserts that "the latter function is already required by the FPM." Id. The Union also states that the requirement that employees be allowed to consult with the Union does not excessively interfere with the Agency's rights because "[m]anagement need wait only a reasonable time for the employee to consult with the Union representative." Id.

The Union claims that the Agency misinterprets section E of Proposal 4 to be "a challenge to its determination concerning reasonable suspicion." Id. The Union asserts that the purpose of Section E of Proposal 4 is to avoid the stigma attached to an employee who is subjected to a wrongful reasonable suspicion drug test. The Union argues that the proposal does not interfere with the Agency's authority to determine, in accordance with law, regulation, and the agreement, that an employee should be tested based on reasonable suspicion of illegal drug use. The Union claims that the proposal merely allows an employee to offer an explanation of the circumstances before a final decision is made to order testing. The Union states that if the Agency official is satisfied with the employee's explanation, the employee's record would be expunged of any reference to reasonable suspicion testing, and if the employee does not explain the circumstances to the satisfaction of the management official, the test would proceed.

According to the Union, Section E of Proposal 4 is "a pre-decisional procedure which allow[s] an employee to contribute information to the [A]gency before the decision to perform a test is finalized." Id. at 32-33. The Union claims that the proposal allows employee input without intruding into management's deliberative process. The Union notes that nothing in the proposal prevents the Agency from deciding to perform a reasonable suspicion test or from disciplining an employee based on the test results.

In the alternative, the Union argues that if the Authority determines that Section E of Proposal 4 interferes with management's rights, then Section E should be viewed as an appropriate arrangement for employees adversely affected by the exercise of the Agency's management rights. The Union claims that Section E "has no impact on management ability to deliberate and act in pursuit of its statutory rights." Id. at 34. The Union states that "[t]he Authority has explicitly recognized that this type of pre-decisional input does not prevent an agency from exercising its statutory rights." Id. at 34-35. The Union argues, therefore, that Section E does not excessively interfere with management's rights.

Finally, the Union contends that Proposal 4 is consistent with Executive Order 12564 and with FPM Letter 792-16. The Union claims that the Agency's argument that Section 4 of the Executive Order precludes the Agency from providing employees with written notice and that Section 6(f) of the Executive Order prevents the Agency from providing information prior to the administration of a reasonable suspicion test are without merit. The Union states that Section 4 of the Executive Order "has no application to the notice described in [Section C of Proposal 4.]" Id. at 36. The Union also asserts that the Agency has "expand[ed] the scope [of Section 6(f)] of the Executive Order to an absurd conclusion." Id. The Agency states that "Section 6(f) makes no mention of the type of employee input contemplated by [Section E of Proposal 4]. Neither does it expressly prohibit pre-decisional input." Id.

The Union argues that the Agency has shown no support for its "naked assertion" that reasonable suspicion testing is a method or means of performing the Agency's work, and thus, negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. Id. at 36. The Union asserts that in order to show that the proposal is nonnegotiable under section 7106(b)(1) of the Statute, the Agency must apply the principles in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 35 FLRA 398 (1990). According to the Union, the Agency must show that the proposal affects the method or means chosen by the Agency to accomplish or further the performance of its work and that the method and means is directly and integrally related to the performance of the Agency's work. The Union contends that the Agency did not demonstrate a connection between its mission of regulating the use of nuclear power and the procedures surrounding reasonable suspicion drug testing.

B. Analysis and Conclusions

For the following reasons, we find that Sections C and E of Proposal 4 are negotiable.

1. The First and Second Sentences of Section C Are Negotiable

The first and second sentences of Section C require the Agency to notify an employee, to the extent practicable, of the basis for the Agency's reasonable suspicion that the employee is using illegal drugs. We find that the first and second sentences of Section C of Proposal 4 do not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

In Immigration and Naturalization Service, 42 FLRA at 611-12, we considered proposals requiring the agency to notify employees of the reasons supporting the agency's suspicion that those employees are using illegal drugs. The proposals required the agency to notify the employees on the same day or by noon of the following day, or within 48 hours after, the employee is ordered to undergo a drug test based on that reasonable suspicion. We concluded that the proposals did not directly interfere with the Agency's right to conduct reasonable suspicion testing under section 7106(a)(1) of the Statute. Because the proposals did not require the Agency to disclose all the evidence that supported its reasons for testing an employee based on reasonable suspicion, we found that the agency retained the flexibility to provide notices to employees that are consistent with the agency's security policies. That is, where the agency had legitimate security concerns relating to the disclosure of information, the proposals did not preclude the agency from preparing the written justification to exclude the information which, if disclosed, would compromise the agency's security plan or policy. Therefore, we concluded that the requirement in the proposals that the agency notify employees of the reasons supporting the agency's suspicion that the employees are using illegal drugs did not directly interfere with the agency's right to determine its internal security practices.

The second sentence of Section C of the proposal only requires the Agency, "[t]o the extent practicable," to provide employees with the basis for the Agency's reasonable suspicion that the employees are using illegal drugs. As worded, therefore, the second sentence of Section C does not impose a requirement that the Agency provide an employee with all the information in its possession that provides the basis for ordering the employee to undergo a reasonable suspicion test. That is, the wording of the proposal only requires the Agency to notify the employee of the reasons for the test, insofar as that is "practicable."

The Union states that the second sentence of Section C "does not frustrate the drug program's purpose of detecting users of illegal drugs. . . . It does not interfere with the [A]gency's right to summon an employee for reasonable suspicion testing." Response at 29. Specifically, the Union states that the requirement of the second sentence of Section C that, if practicable, an employee will be provided the basis for the reasonable suspicion, "only records the [A]gency's reasons." Id. As explained by the Union, therefore, the second sentence of Section C is intended to provide employees with the reasons that they are being ordered to undergo a reasonable suspicion test without interfering with management's ability to conduct drug testing. The Union's statement is consistent with the plain wording of Section C of the proposal. In the absence of any evidence in the record to the contrary, we interpret the second sentence of Section C, and, in particular, the use of the phrase "to the extent practicable," as preserving the Agency's discretion not to disclose the specific evidence on which the decision to order the test is based or any of the sources of that evidence.

In sum, we interpret the second sentence of Section C as requiring the Agency to notify employees of the reasons why they are being ordered to take a drug test but not as requiring the disclosure of evidence or sources of information which gave rise to the Agency's reasons, if disclosure would frustrate the drug program's purpose of detecting users of illegal drugs or interfere with the Agency's ability to summon employees for reasonable suspicion testing. Thus, where the Agency has legitimate security concerns relating to the disclosure of information, the second sentence of Section C does not preclude the Agency from preparing the statement of reasons to exclude the information which, if disclosed, would compromise the Agency's internal security practices or policy. The second sentence of Section C also does not preclude the Agency from providing the statement of reasons in a manner that is consistent with the Agency's internal security practices or policy concerning the detection of illegal drug users. Consequently, we conclude that, under the second sentence of Section C, the Agency retains the flexibility to provide notices to employees that are consistent with the Agency's internal security policies. See, for example, Immigration and Naturalization Service, 42 FLRA at 612.

Accordingly, we conclude, consistent with Immigration and Naturalization Service, that the notification requirement in the first and second sentences of Section C does not directly interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.

We note that the proposals in Immigration and Naturalization Service allowed the agency to provide employees with a written statement of the reasons for requiring them to undergo reasonable suspicion tests either, in the case of one proposal, by the end of the day or by noon of the following day, or, in the case of the other, within 48 hours of being ordered to report for the test. The first and second sentences of Section C require management to provide the employee with a statement of the reasons for ordering a reasonable suspicion test when the employee is directed to report for the test. We find that the difference between requiring management to notify employees of the reasons at the same time that the employee is directed to undergo a reasonable suspicion test and requiring management to notify employees of the reasons at some time after the employee is directed to undergo the test does not require a different result from Immigration and Naturalization Service.

In either circumstance, management must have sufficient reason to suspect illegal drug use before it orders an employee to undergo a reasonable suspicion test. Reasonable suspicion testing must be based on an articulable belief that an employee uses illegal drugs. See Federal Personnel Manual (FPM) Letter 792-19, Section 3.c. That is, by the time that it orders the test, management must be able to articulate the reasons why it has decided that a test is necessary. The proposal only requires that those reasons be written and provided to the employee when the employee is ordered to report for the test. Moreover, the proposal establishes no requirements as to the form or content of the notice. Therefore, we conclude, in the absence of evidence to the contrary, that the time required to prepare that notice would have a minimal effect on management's ability to order an employee to report for the test.

Moreover, because the first and second sentences of Section C do not require the Agency to give employees notice that they are to be tested in advance of the order to report for the test, we also find that Section C is distinguishable from those proposals that required management to give employees 24 hours or 2 hours advance notice of a drug test and that the Authority found to directly interfere with management's rights under section 7106(a)(1). See American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 37 FLRA 1456 (1990) (Minerals Management Service) (Member Talkin concurring) and American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439 (1990) (Sierra Army Depot) (Member Talkin dissenting). We have found that proposals allowing management to provide notice at the time employees are ordered to report for a test are negotiable. See National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1134 (1991). In terms of notice at the time employees are ordered to report for a drug test, we find that the differences between random drug tests and reasonable suspicion drug tests are not significant.

We also note that the Agency's reliance on Section 4(a) of Executive Order 12564, regarding notice to employees, is misplaced. The portion of Section 4(a) relied on by the Agency pertains to a 60-day advance general notice to employees about the Agency's drug testing program. The Executive Order also specifies that agencies may conduct reasonable suspicion or post-accident testing, regardless of the 60-day notice. The 60-day general notice regarding implementation of the Agency's drug testing program is entirely different from the specific notice which must, under section C of Proposal 4, be given to employees who are ordered to report for reasonable suspicion drug testing. See also American Federation of State, County, and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 436-40 (1991).

Finally, we find that the Agency has failed to demonstrate that the first and second sentences of Section C directly interfere with management's right, under section 7106(b)(1) of the Statute, to determine the methods and means of performing work. As we stated above, to establish a violation of its right to determine the methods and means of performing work, an agency must show: (1) a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission; and (2) that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. U.S. Department of Veterans Affairs, 40 FLRA at 1066.

The Agency has made no attempt to establish a direct and integral relationship between the requirement for a written statement and the accomplishment of the Agency's mission. Consequently, for the reasons discussed in connection with our disposition of Proposal 2 above, we conclude that the first and second sentences of Section C do not directly interfere with management's rights under section 7106(b)(1).

We conclude that the first and second sentences of Section C are negotiable.

2. The Third Sentence of Section C of Proposal 4 Is Negotiable

The third sentence of Section C of Proposal 4 requires the Agency to inform an employee who is subject to reasonable suspicion drug testing that the employee may consult with the Union before the test is administered. The Union states that the third sentence of Section C would only cause a minimal delay in the administration of the drug test because contact with the Union could be made by telephone. The Union explains that where a Union representative is not quickly available, that is, "within a reasonable period," the test could continue without representation. Response at 30. As the Union's explanation is consistent with the plain wording of the third sentence of the proposal, we will adopt it for purposes of this decision.

a. Section 7114 of the Statute

The Union states that the third sentence of Section C is not intended to require that the Union representative be present during the collection of the specimen, but only to allow employees to talk to a Union representative before the test to discuss the procedures for the drug test. Accordingly, the Union asserts that the Agency's argument regarding the applicability of section 7114(a)(2)(B) of the Statute is misplaced.

We find that the Union's explanation is consistent with the wording of the proposal. We find, therefore, that it is unnecessary to determine whether employees who are required to undergo a reasonable suspicion drug test would be entitled to Union representation under section 7114 of the Statute. Because the Union states that the third sentence of Section C of Proposal 4 does not require that a Union representative be present during the collection of the specimen, but, rather, requires only that the employee be allowed an opportunity to consult with a Union representative prior to the test, the status of the drug test as an examination is not at issue. Even if employees would not be entitled under section 7114 of the Statute to union representation during a drug test, nothing in section 7114 prevents parties from negotiating contractual rights to union representation beyond those provided by that section. See Bureau of Alcohol, Tobacco and Firearms, 41 FLRA at 1114-15; Department of Education, 38 FLRA at 1088-89.

b. Management's Right to Determine the Methods and Means of Performing Work

We find that the Agency has failed to demonstrate that the third sentence of Section C directly interferes with management's right, under section 7106(b)(1) of the Statute, to determine the methods and means of performing work. The Agency has made no attempt to establish a direct and integral relationship between the requirement for an opportunity to consult with a Union representative prior to undergoing a reasonable suspicion drug test and the accomplishment of the Agency's mission. Consequently, for the reasons discussed in connection with our disposition of Proposal 2 and the first and second sentences of Section C above, we conclude that the third sentence of Section C does not directly interfere with management's right under section 7106(b)(1).

c. The Third Sentence of Section C Is an Appropriate Arrangement

The Agency argues that the third sentence of Section C directly interferes with the Agency's right to conduct reasonable suspicion drug testing because that sentence will cause undue delay in the administration of the drug test. However, consistent with the Union's explanation, we find that even assuming that the delay resulting from allowing an employee to contact a Union representative constitutes direct interference with the Agency's right to conduct reasonable suspicion drug testing, the third sentence of Section C would nevertheless be negotiable as an appropriate arrangement under section 7106(b)(3) because the delay would not excessively interfere with that right. See Justice Management Division. See also Army Information Systems Command.

Specifically, applying the analytical frame work in Kansas Army National Guard, we find that the proposal is intended as an arrangement for employees adversely affected by management's decision to conduct reasonable suspicion testing. By providing an employee with the opportunity to consult with a Union representative prior to a reasonable suspicion drug test, the proposal benefits the employee because the employee "may receive an explanation of his [or her] rights, obligations and test procedures" and the representative could address "many of the employee[']s questions about the [reasonable suspicion drug testing] process[.]" Response at 32. The Union also states that allowing employees to consult with a Union representative will benefit the Agency because consultation "will make the employee more cooperative during this strange and disturbing process." Id. We find that allowing employees an opportunity to consult with a Union representative prior to a reasonable suspicion drug test will benefit employees by providing them information as to their rights and obligations and thereby employees' concerns regarding the drug testing process may be alleviated. We conclude, therefore, that the proposal is an arrangement within the meaning of section 7106(b)(3) because it is intended to mitigate against the adverse effects on employees who are required to undergo a reasonable suspicion drug test.

As to whether the third sentence of Section C is an appropriate arrangement, we note that the delay involved would be no longer than a reasonable period in which to attempt to reach a representative by telephone. The Union expressly acknowledges that the Agency could conduct the test if the employee is unable to contact a Union representative within a reasonable period. Therefore, the proposal would not prolong the time allowed for an employee to consult with a Union representative so as to unduly restrict management's ability to conduct drug tests. In short, the proposal contemplates a short delay to accomplish the purpose of allowing the employee to consult with a Union representative, whenever a representative is reasonably available. Consequently, we find that the burden imposed by the proposal on management's ability to conduct reasonable suspicion testing is not significant enough to outweigh the benefit to employees of the opportunity to consult with a Union representative prior to undergoing reasonable suspicion testing.

Moreover, we reject the Agency's claim that the third sentence of Section C of the proposal directly interferes with management's right to suspend, remove, or take other disciplinary action against employees. The Agency's argument concerns management's ability to discipline employees for using illegal drugs. However, the third sentence of Section C concerns the implementation of the drug test, not what actions management can take based on the results of those tests. The third sentence of Section C does not restrict the Agency's ability to take disciplinary action. See, for example, 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, 550-52 (1991) (Department of Justice, Immigration and Naturalization Service) (proposal providing employees an opportunity to consult with a union representative before providing a written report or oral statement in connection with a security investigation, did not directly interfere with the agency's rights to discipline employees, assign work, determine internal security practices, and take actions in emergencies), 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).

Even assuming that a drug test is part of the investigative process leading up to discipline and that, as the Agency argues, delaying the test hinders the Agency's ability to develop evidence of illegal drug use warranting disciplinary action, we find that the third sentence of Section C would not excessively interfere with management's right to discipline. Because that sentence only would impose such delay as is necessary to afford employees a reasonable opportunity to contact a Union representative, and would not preclude the administration of the test if a representative is not available in that time, we conclude that the sentence would not unduly restrict management's ability to conduct drug tests. Response at 30, 31. As discussed above, the burden of that short delay does not outweigh the benefit to employees of the opportunity to consult with a Union representative as to their rights and obligations in the drug testing procedure.

Consequently, even assuming that the third sentence of Section C directly interferes with management's right to suspend, remove, or otherwise discipline employees under section 7106(a)(2)(A) of the Statute, we find that that sentence would not excessively interfere with management's right to discipline employees. See id. at 552 (even assuming that proposal providing employees an opportunity to consult with a union representative before providing a written report or oral statement in connection with a security investigation, directly interferes with the agency's rights to discipline employees, assign work, determine internal security practices, and take actions in emergencies, the proposal would not excessively interfere with those management rights and, therefore, would constitute an appropriate arrangement under section 7106(b)(3) of the Statute).

Moreover, even assuming that the third sentence of Section C of Proposal 4 directly interferes with the Agency's right to determine its internal security practices, we find that that portion of Section C of Proposal 4 does not excessively interfere with the Agency's right to determine its internal security practices. As we stated above, the third sentence of Section C only would impose such delay as is necessary to afford employees a reasonable opportunity to contact a Union representative, and would not preclude the administration of the test if a representative is not available in that time; nor would it otherwise unduly restrict management's ability to conduct drug tests. Therefore, we conclude that the third sentence of Section C would not excessively interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.

Because the third sentence of Section C of Proposal 4 does not excessively interfere with management's right to discipline employees under section 7106(a)(2)(A) or to determine its internal security practices under section 7106(a)(1), we conclude that the third sentence of Section C constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

We conclude, therefore, that the three sentences of Section C of Proposal 4 are negotiable.

3. The First Sentence of Section E of Proposal 4 Is Negotiable

Under the first sentence of Section E of Proposal 4, employees who are notified to report for reasonable suspicion drug testing will be given the opportunity to respond to the Office Director or Regional Administrator before the test is administered.

The Agency claims that this sentence interferes with the Agency's right to determine its internal security procedures and its right to discipline employees. The Agency also asserts that the delay caused by the proposal hinders its right to investigate matters which may lead to the Agency's decision to take disciplinary action against employees who use illegal drugs. The Agency argues, in addition, that the proposal is inconsistent with Executive Order 12564 and section 7114(a)(2)(B) of the Statute. We have responded to the Agency's arguments regarding the Executive Order and section 7114 in our discussion of Section C and we need not repeat our analysis here. Moreover, for the reasons stated in our discussion of Section C, we conclude that the Agency has not demonstrated that the proposal directly interferes with management's rights under section 7106(b)(1) of the Statute.

The first sentence of Section E of Proposal 4 permits employees to contact the Office Director or Regional Administrator before reporting for a reasonable suspicion drug test. We note at the outset that the proposal does not prevent the Agency from conducting a reasonable suspicion drug test. The proposal only requires that employees required to undergo such a test first have an opportunity to respond to the Office Director or Regional Administrator. Moreover, the proposal does not mandate that this communication be in person. Therefore, a telephone conversation would fulfill the requirement.

According to the Union, the purpose of the first sentence of Section E is to "give[] an employee the opportunity to offer an explanation to the official empowered by the [A]gency to order reasonable suspicion testing before the test is actually performed." Petition at 9. The Union explains that the first sentence of Section E is intended as "a pre-decisional procedure which allow[s] an employee to contribute information to the [A]gency before the decision to perform a test is finalized." Response at 32-33. The first sentence of Section E does not permit the Union to become involved in the Agency's deliberative process concerning reasonable suspicion testing, nor does it preclude the Agency from deciding to conduct a drug test or from disciplining an employee based on the result of a drug test. The decision as to whether to continue with the test based upon information provided by the employee remains with the Agency.

The Agency claims, however, that if the Office Director or Regional Administrator is not available, Section E would preclude testing until that official is available. The Agency argues that this delay "may provide sufficient time for the employee to cleanse his/her system of the drugs through temporary abstinence." Response at 20. The issue is to what extent, if any, does the delay involved in allowing employees to respond to the Office Director or the Regional Administrator interfere with the Agency's rights to determine its internal security practices and to discipline employees under section 7106(a) of the Statute.

a. Delay

The Union states that "[t]he nature and extent of the adverse impact of being summoned for reasonable suspicion testing" is as explained with regard to Section C of Proposal 4. Response at 34. Consistent with its claims as to Section C, the Union argues that Section E "has no impact on management's ability to deliberate and act in pursuit of its statutory rights." Id. As stated above, Section C provides employees an opportunity to consult with a Union representative before a reasonable suspicion drug test is administered. The Union asserted that the delay caused by allowing employees to consult with a Union representative before a drug test "will be minimal since the employee will have quick personal or telephonic access to a Union representative. In those instances where a representative cannot be made available within a reasonable period of time, the test may continue without [U]nion consultation." Response at 30.

The Union states that Section E should be interpreted consistent with the Union's explanation of Section C. The Union explains that Section C only requires such delay prior to a reasonable suspicion drug test as is necessary to allow an employee an opportunity to consult with a Union representative. The Union also explains that, under Section C, the employee will have quick personal or telephonic access to the Union representative. In those instances where the representative cannot be made available within a reasonable period of time, the Union explains that, under Section C, the test may be performed without allowing the employee an opportunity to consult.

Interpreting Section E consistent with the Union's explanation of Section C, we find that Section E only requires such delay prior to a reasonable suspicion drug test as is necessary to allow an employee an opportunity to respond to the Office Director or Regional Administrator. We also find that Section E is intended to allow employees to have quick personal or telephonic access to the Office Director or Regional Administrator. In those instances where those officials cannot be made available within a reasonable period of time, we find that Section E would permit the test to be performed without allowing the employee an opportunity to respond. The wording of Section E is consistent with the Union's explanation that Section E should be interpreted consistent with the Union's explanation of Section C. Therefore, we will adopt the interpretation of Section E outlined above for purposes of this decision.

Having interpreted the proposal in this manner, we turn to the question of the extent to which, if any, the first sentence of Section E, so interpreted, interferes with management's rights. Even assuming that the delay involved in allowing employees an opportunity to respond to the Office Director or Regional Administrator directly interferes with the Agency's right to conduct reasonable suspicion drug testing or the Agency's right to investigate matters which may lead to the Agency's decision to discipline an employee who uses illegal drugs, we find that the delay does not excessively interfere with the Agency's right. See Justice Management Division. See also Army Information Systems Command.

Applying the analytic framework in Kansas Army National Guard to the first sentence of Section E of Proposal 4, we find that this portion of the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The first sentence of Section E is intended as an arrangement for employees adversely affected by the exercise of the Agency's right to conduct reasonable suspicion drug testing. The proposal benefits employees by allowing them an opportunity to respond to the reasons for management's reasonable suspicion that they are using drugs and to convince management that its reasons are mistaken. The proposal also would benefit employees because they "will be spared the inconvenience and embarrassment of the [drug] test" and possible damage to their reputations, if the Agency determines, based on information provided by the employee, that it is not reasonable to believe that the employee uses illegal drugs and determines not to order a drug test. Response at 35.

As to the burden imposed by the first sentence of Section E on the exercise of management's rights, the proposal does not require that management respond to an employee after it has heard the employee's explanation. Management retains the discretion to perform the test after it has heard the employee's explanation. The proposal only allows an amount of time that is sufficient for the employee to state a response to the Agency's reasons for suspecting illegal drug use. Interpreting Section E in a manner that is consistent with the Union's interpretation of Section C, the amount of time that is contemplated is the time that would be required for a quick telephone call.

Moreover, as stated above, the Union interprets Section E, consistent with the interpretation of Section C, as allowing the Agency to conduct the test if the Office Director or Regional Administrator is not available within a reasonable period. Therefore, in our view, the proposal would not prolong the time allowed for the employee to respond to the Office Director or Regional Administrator so as to unduly restrict management's ability to obtain evidence of an employee's use of illegal drugs. In sum, we find that the proposal contemplates a short delay to accomplish the purpose of allowing the employee to respond to the Agency's determination that the employee should undergo a reasonable suspicion drug test.

We find that the benefit to employees of being afforded an opportunity to respond to the Agency's decision to order a reasonable suspicion drug test outweighs the burden imposed on the Agency's right to conduct reasonable suspicion drug testing, or the Agency's right to investigate matters which may lead to the Agency's decision to discipline an employee who uses illegal drugs, by the delay that results from providing the opportunity to respond. We find, therefore, that the first sentence of Section E would not excessively interfere with management's right to determine its internal security practices under section 7106(a)(1) or its right to discipline employees under section 7106(a)(2)(A) of the Statute.

b. Office Director/Regional Director

We note that the Agency does not contend that the first sentence of Section E of Proposal 4 is nonnegotiable because the proposal assigns the task of hearing an employee's response to the "Office Director/Regional Director." However, even assuming that designating the "Office Director" or "Regional Director" as the management official to hear an employee's response directly interferes with the Agency's right to assign work, we find, for the reasons discussed below, that that requirement does not excessively interfere with management's right to assign work.

The first sentence of Section E of Proposal 4 prescribes an additional step that the Agency must take before an employee undergoes a reasonable suspicion drug test: the Agency must provide employees ordered to undergo a reasonable suspicion drug test an opportunity to explain to the Office Director or Regional Administrator why they should not be required to take the test. As noted above, employees benefit from the chance to persuade management not to proceed with the test. As to the burden imposed on management by the proposal, the Union indicates that the Office Director and Regional Administrator were named in the proposal because they are the management officials with authority to order reasonable suspicion drug tests. We interpret the Union's statement as explaining that the proposal is intended to reflect existing management responsibilities, not to preclude the Agency from changing those responsibilities.

We find that the benefit to employees of being able to explain to officials authorized to order reasonable suspicion tests the reasons why they should not be tested outweighs the burden imposed on management by requiring those officials to undertake that responsibility. Consequently, we conclude that the proposal does not excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See National Federation of Federal Employees and Department of Interior, Bureau of Land Management, 29 FLRA 1491, 1525 (1987). Compare American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371 (1991) (proposal requiring the agency to assign the "Garrison Commander" the function of approving or disapproving employees' extended tour of duty excessively interfered with the Agency's right to assign work because the management official named in the proposal did not have supervisory authority over all the employees in the bargaining unit).

c. Conclusion

We conclude that the first sentence of Section E of Proposal 4 constitutes a negotiable appropriate arrangement under section 7106(b)(3). See Department of Justice, Immigration and Naturalization Service, 40 FLRA at 552.

4. The Second Sentence of Section E of Proposal 4 Is Negotiable

Under the second sentence of Section E of Proposal 4, if an employee successfully explains to the Office Director or to the Regional Administrator why a drug test is not required, any reference to the reasonable suspicion test will be removed from the employee's personnel files. The record in this case does not specify what specific personnel files are involved. FPM Letter 792-19, section 3.c.(3), states that documentation supporting a reasonable suspicion warranting drug testing should be retained in the adverse action file compiled by the agency. In the absence of information to the contrary, we conclude that the personnel files mentioned in the proposal include the Agency adverse action files.

The Agency has not specifically alleged or demonstrated that the second sentence of Section E of Proposal 4 is inconsistent with any law, rule or regulation. Also we are not aware of any requirement that records relating to reasonable suspicion testing be retained in the adverse action file when or if it is determined that the Agency's suspicion was unwarranted. Accordingly, we find that the second sentence of Section E of Proposal 4 is negotiable.

VII. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposals 1, 2, 3, and 4.(6)

APPENDIX

FPM chapter 335, subchapter 1-4, Requirement 5 provides:

1-4. MERIT PROMOTION REQUIREMENTS

. . . .

Requirement 5

Administration of the promotion system will include recordkeeping and the provision of necessary information to employees and the public, ensuring that individuals' rights to privacy are protected. Each agency must maintain a temporary record of each promotion sufficient to allow reconstruction of the promotion action, including documentation on how candidates were rated and ranked. These records may be destroyed after 2 years or after the program has been formally evaluated by the OPM (whichever comes first) if the time limit for grievances has lapsed before the anniversary date.

Relevant provisions of Executive Order 12564 provide as follows:

Sec. 5. Personnel Actions.

. . . .

(b) Agencies shall initiate action to discipline any employee who is found to use illegal drugs, provided that such action is not required for an employee who:

(1) Voluntarily identifies himself as a user of illegal drugs or who volunteers for drug testing pursuant to section 3(b) of this Order, prior to being identified through other means;

(2) Obtains counseling or rehabilitation through an Employee Assistance Program; and

(3) Thereafter refrains from using illegal drugs.

(c) Agencies shall not allow any employee to remain on duty in a sensitive position who is found to use illegal drugs, prior to successful completion of rehabilitation through an Employee Assistance Program. However, as part of a rehabilitation or counseling program, the head of an Executive agency may, in his or her discretion, allow an employee to return to duty in a sensitive position if it is determined that this action would not pose a danger to public health or safety or the national security.

5 U.S.C. § 7513(b)(1) provides that:

§ 7513. Cause and procedure

. . . .

(b) An employee against whom an action is proposed is entitled to--

(1) at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action[.]




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. In its response to the Agency's statement of position, the Union withdrew its appeal as to the fourth sentence of Proposal 2 and the final sentence of Proposal 2 from its petition for review. See Response at 18. Accordingly, the negotiability of these sentences of Proposal 2 will not be considered in this decision.

2.