48:0516(50)NG - - Intl. Federation of Professional and Technical Engineers, Local 89 and DOI, Bureau of Reclamation, Grand Coulee Project Officer - - 1993 FLRAdec NG - - v48 p516



[ v48 p516 ]
48:0516(50)NG
The decision of the Authority follows:


48 FLRA No. 50

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND

TECHNICAL ENGINEERS

LOCAL 89

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

GRAND COULEE PROJECT OFFICE

(Agency)

0-NG-2127

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 15, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of 15 proposals. The Agency filed a Statement of Position. The Union did not file a response to the Agency's statement.

For the reasons which follow, we find that Proposals I, II.B.3 and II.C.1.d, which require the Agency to comply with applicable laws, rules and regulations in establishing and administering various aspects of its drug testing program, are nonnegotiable because they directly interfere with management's right to determine its internal security practices. Proposal II.A.4, which requires that certain drug tests be approved by an official who has training and experience in evaluating drug-induced impairment, is nonnegotiable because it directly interferes with management's right to assign work. Proposal II.B.4, which requires that the Agency ensure that employees included in the random testing pool are working under accurate and up-to-date position descriptions and performance plans, is nonnegotiable because it directly interferes with management's right to determine its internal security practices.

Proposal III.A, which requires that the Agency issue a notice containing certain information about the drug testing program to employees occupying testing designated positions at least 30 days prior to implementation of the program, is negotiable. Proposal III.B.1, which requires that the Agency establish a procedure in which the Medical Review Officer (MRO) can contact employees with positive test results, is negotiable. Proposal IV.B.1, requires the grant of a reasonable amount of administrative leave for drug tests. The petition for review as to this proposal is dismissed because there is insufficient information in the record on which to make a negotiability determination. Proposal IV.C.6, which requires the Agency to maintain certain statistical information regarding the employees tested under the drug testing program, is negotiable.

Proposal IV.E.2 provides that urine samples that are not tested on the day that they are collected will be frozen and that if, after thawing, the samples show signs of precipitated salts, then the specimens will be discarded and new samples obtained. We find that the proposal is inconsistent with Government-wide regulations and is nonnegotiable under section 7117(a)(1) of the Statute. Proposal IV.E.4 provides that, if an employee is unable to produce a sufficient volume of urine for drug testing within a reasonable amount of time, then the employee will be allowed to return the next day until the necessary amount of urine is produced. We find that the proposal is inconsistent with Government-wide regulations and is nonnegotiable under section 7117(a)(1) of the Statute.

Proposal IV.F.1, provides that, upon request, an employee will be provided with certain information and equipment. The petition for review as to this proposal is dismissed because there is insufficient information in the record on which to make a negotiability determination. Proposal IV.G.13, which requires that, in the event that a laboratory fails to meet technical quality control (QC) standards, the Agency discontinue testing urine samples until such time as the laboratory is able to meet the standards, is nonnegotiable because it directly interferes with management's right to determine its internal security practices.

Proposal V.A.1, which requires that training on the Agency's drug testing program and employee assistance program be prepared by an official who is trained and qualified to provide such training, is negotiable. Proposal VI.H, which provides that an employee who voluntarily admits to the use of illegal drugs, is rehabilitated, and remains drug-free shall be exempt from disciplinary action, is nonnegotiable because it directly and excessively interferes with management's right to discipline employees.

II. Proposal I

The parties agree that the establishment and administration of a drug free workplace program ("drug testing program") at the Grand Coulee Project Office for affected bargaining unit members will be done in accordance with the United States Constitution, all applicable laws, rules, and regulations and the parties [sic] agreements.

A. Positions of the Parties

The Agency argues, without elaboration, that the proposal directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. The Agency also contends that Proposal I does not qualify as an appropriate arrangement because it is not confined to any specific adverse impact and to any specific group of employees who may be affected by the exercise of management's rights. In this regard, the Agency asserts that "any employee[s] may be included within [the proposal's] coverage, even those not covered by the drug testing [p]lan." Statement of Position at 7-8. In support of its contentions, the Agency relies on United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992) (Minerals Management Service v. FLRA).

The Union cites our decisions in American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068 (1990) (Education I), decision on reconsideration 39 FLRA 1241 (1991) (Education II), enforcement denied sub nom. Minerals Management Service v. FLRA, and stated generally that the purpose of its proposal is to "fulfill its statutory obligation to represent the members of the bargaining unit[.]" Petition for Review at unnumbered page 1.

B. Analysis and Conclusions

It is well established that the implementation of a drug testing program constitutes an exercise of management's right to determine its internal security practices. See, for example, American Federation of Government Employees, AFL-CIO, Local 446 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina, 43 FLRA 836, 852 (1991) (National Park Service). Drug testing is linked to management's right to determine its internal security practices because it contributes to the objective of protecting the Agency's personnel, property, and operations from the threat of employee use of illegal drugs. See American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 424 (1991) (Justice Management Division). Further, proposals requiring an agency to establish and administer its drug testing program in compliance with applicable laws and regulations directly interfere with management's right to determine its internal security practices. See Education I, 38 FLRA at 1076, decision on reconsideration 39 FLRA 1241 enforcement denied as to other matters sub nom. Minerals Management Service v. FLRA. As Proposal I requires the Agency to establish and administer its drug testing program in compliance with applicable laws and regulations, it directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices, and is nonnegotiable unless it is an appropriate arrangement under section 7106(b)(3).

The Union did not specifically raise a claim that Proposal I is intended as an appropriate arrangement. Moreover, although the Union cited cases where we found substantially identical proposals to be negotiable as appropriate arrangements, those cases were overturned by the court in Minerals Management Service v. FLRA. Consequently, while in other circumstances our statutory obligations would require that we construe Proposal I as an appropriate arrangement to avoid anomalous and conflicting results on substantially identical proposals, there is no need to do so here. For example, Merit Systems Protection Board Professional Association and Merit Systems Protection Board, 31 FLRA 258, 264 (1988) (MSPBA), rev'd as to other matters sub nom. U.S. Merit Systems Protection Board v. FLRA, 913 F.2d 976 (D.C. Cir. 1990). As we have determined that Proposal I directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute, we conclude that Proposal I is nonnegotiable.

III. Proposal II.A.4

Reasonable suspicion drug testing shall be approved only by an authorized official who has documented training and experience in the evaluation of drug induced impairment.

A. Positions of the Parties

The Agency argues that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. In this regard, the Agency asserts that the determination of the qualifications of an employee, as well as the work assigned to an employee, "is a management right." Statement of Position at 8.

The Union provided no arguments concerning this proposal.

B. Analysis and Conclusions

Under section 7106 of the Statute, agencies retain the right to determine the qualifications of a position and the skills and job-related individual characteristics needed to perform work. This authority is encompassed in the right to assign work under section 7106(a)(2)(B). See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1503 (1992) (HCFA, Baltimore). Further, proposals that require an agency to restrict work assignments to certain personnel directly interfere with the exercise of the right to assign work. See, for example, American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557, 567 (1991) (Defense Mapping Agency).

Based on its plain wording, we find that Proposal II.A.4 would preclude a management official, other than one who has "documented training and experience in evaluation of drug induced impairment[,]" from approving a drug test based on reasonable suspicion. Petition for Review at 2. As the proposal restricts work assignments to particular personnel, we find that the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. In the absence of an assertion by the Union that the proposal is intended as an appropriate arrangement under section 7106(b)(3) of the Statute, we do not address that issue and we conclude that Proposal II.A.4 is nonnegotiable.

IV. Proposal II.B.3

The employer agrees that the designation of employees subject to random drug testing shall be done in strict compliance with the law, including but not limited to Executive Order No. 12564. Both parties understand that the application of case law regarding random drug testing continues to develop. As new federal court decisions are rendered, the employer agrees to review those bargaining unit employees designated for random drug testing to determine whether they should continue to be subjected to such testing.

[Only the underlined portion is in dispute].

A. Positions of the Parties

The Agency claims that the first sentence of Proposal II.B.3 directly interferes with management's rights under sections 7106(a)(1) and (a)(2)(B) of the Statute to determine internal security practices and to assign work. In this connection, the Agency contends that the disputed portion of the proposal designates "which employees are required to take a drug test." Statement of Position at 9.

The Agency further claims that the disputed portion of Proposal II.B.3 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute because the proposal "is not tailored to indicate the result of any adverse impact[.]" Id.

The Union provided no arguments regarding this proposal, except for citing our decision in Education II.

B. Analysis and Conclusions

Management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to establish a random drug testing program for employees in sensitive positions. Justice Management Division, 42 FLRA at 423 (citations omitted). Proposals requiring an agency to administer its drug testing program in compliance with applicable laws directly interfere with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. See Education I, 38 FLRA at 1076, decision on reconsideration 39 FLRA 1241, enforcement denied as to other matters sub nom. Minerals Management Service v. FLRA.

Proposal II.B.3 requires the Agency to comply with law, including, but not limited to the Executive Order, when designating those employees to be tested under its drug testing program. As such, the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. In the absence of an assertion by the Union that the proposal constitutes an appropriate arrangement, and for the reasons set forth in conjunction with our analysis of Proposal I, we conclude that the proposal is nonnegotiable.

As we have determined that Proposal II.B.3 directly interferes with management's right to determine its internal security practices, we need not address the Agency's additional contentions regarding this proposal.

V. Proposal II.B.4

In determining which employees will be subjected to random testing, the employer shall consider each employee's position description and individual performance plan as well as all other appropriate information before designating the employee for random drug testing. The Bureau will insure that employees included in the random drug testing pool are working under accurate and up-to-date position descriptions and performance plans.

[Only the underlined portion is in dispute].

A. Positions of the Parties

The Agency alleges that the disputed portion of Proposal II.B.4 directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. According to the Agency, the proposal prevents management from conducting drug tests of employees in testing designated positions (TDPs) whose position descriptions are not accurate.

The Union provided no arguments concerning this proposal.

B. Analysis and Conclusions

As noted in our analysis of Proposal I, management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to establish a random drug testing program for employees in sensitive positions. Justice Management Division, 42 FLRA at 423.

The Agency asserts, without dispute by the Union, that this proposal would preclude the testing of employees whose position descriptions are not up-to-date. In the absence of any explanation by the Union, we find that the Agency's interpretation of the proposal is consistent with its plain wording. Interpreted in this manner, we conclude that the proposal directly interferes with management's right to determine its internal security practices because the proposal would preclude the Agency from testing employees whose position descriptions and performance plans are not updated. Absent any assertion that the proposal is intended as an appropriate arrangement, we do not address that issue and we conclude that the disputed portion of Proposal II.B.4 is nonnegotiable.

VI. Proposal II.C.1.d

The employer agrees that the designation of employees subject to post accident unsafe practice drug testing shall be done in compliance with the law, including but not limited to Executive Order No. 12565. Both parties understand that the application of constitutional law regarding post accident and unsafe practice drug testing continues to develop. As new federal court decisions are rendered, the employer agrees to review those employees designated for post accident and unsafe practice drug testing to determine whether they should continue to be subjected to such testing.

[Only the underlined portion is in dispute].

A. Positions of the Parties

The Agency reiterates its arguments, set forth in connection with Proposals I and II.B.3, that the disputed portion of this proposal directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. The Agency also argues that the disputed part of the proposal does not constitute an appropriate arrangement under section 7103(b)(3) because "it is not tailored to indicate the resulting specific adverse impact on employees . . . ." Statement of Position at 10-11.

The Union provided no arguments concerning this proposal.

B. Analysis and Conclusions

As stated previously, the decision to require employees to undergo testing for the use of illegal drugs constitutes an exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Justice Management Division, 42 FLRA at 453. Proposals which limit management's discretion to require that an employee be tested for illegal drugs directly interfere with the exercise of that right. Id. Moreover, we have previously determined that post-accident, or unsafe practice testing, like random testing, constitutes an exercise of an agency's right to determine its internal security practices. See id. Thus, proposals which limit such testing directly interfere with the Agency's right. Id.

The disputed portion of Proposal II.C.1.d. requires the Agency to comply with law, including, but not limited to, Executive Order No. 12564, when designating employees subject to post-accident or unsafe practice testing. By requiring the Agency to comply with "law, including but not limited to" the Executive Order, the proposal here attempts to impose restrictions on the Agency's discretion to test employees in connection with an accident or an unsafe practice. As such, the disputed portion of the proposal directly interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its internal practices. Accordingly, for the reasons set forth in connection with our analysis of Proposal I, and in the absence of an assertion that the proposal constitutes an appropriate arrangement, we conclude that Proposal II.C.1.d is nonnegotiable.

VII. Proposal III.A

At least 30 days prior to implementation of the agency's drug testing program, the employer shall inform each bargaining unit employee occupying a testing designated position (TDP) in writing of the following[] . . . .(2)

A. Positions of the Parties

The Agency contends that, insofar as Proposal III.A requires the Agency to provide "each employee with certain information 'at least 30 days' prior to the taking of a drug test[,]" it directly interferes with its right under section 7106(a)(1) of the Statute to determine its internal security practices. Statement of Position at 11. In this regard, the Agency asserts that specific notice to an employee in advance of a drug test frustrates the intent of its drug testing program by allowing employees to purge themselves of illegal drugs.

The Union provided no arguments regarding this proposal.

B. Analysis and Conclusions

Contrary to the Agency's assertions, nothing in the plain wording of the proposal requires the Agency to provide an employee with 30 days advance notice of a drug test. Rather, the plain wording of the proposal merely requires the Agency to provide all employees with information about the drug testing program at least 30 days prior to implementation of the program itself. In this regard, we note that Section 4(a) of Executive Order 12564 requires 60 days notice to employees prior to implementation of an agency drug testing program. Nothing in the plain wording of the proposal prevents the Agency from issuing the notice in compliance with the 60 days mandated by the Executive Order. Consequently, we find that the proposal is consistent with the Executive Order.

As the proposal does not require a notice to an employee prior to each drug test, we reject the Agency's claim that the proposal frustrates the intent of the program by allowing employees to purge themselves of illegal drugs. Moreover, as the plain wording of the proposal simply requires the Agency to issue a general notice to employees prior to implementation of the program, we find no basis on which to conclude that Proposal III.A interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. See National Park Service, 43 FLRA at 863-64. As no other basis on which to conclude that the proposal is nonnegotiable is argued or apparent, we find that Proposal III.A is negotiable.

VIII. Proposal III.B.1

The agency shall take all reasonable precautions to protect the confidentiality of all information regarding a confirmed positive drug test result. This confidentiality shall include the time between an employee's test being confirmed positive and the time that the M[edical] R[eview] O[fficer] determines the test to be confirmed positive, and the time the MRO decides whether to 'report' the employee's test as positive, including but not limited to:

1. Establishing a procedure whereby the MRO can contact the employee directly without contacting the agency to obtain information regarding the employee's whereabouts and without leaving a message at the employee's workplace or home.

2. Such procedures may include:

a. Providing the MRO with all tested employee's [sic] home and work phone numbers to allow the MRO to contact the employee directly; and/or

b. Providing the MRO with all tested employee's [sic] home addresses to allow the MRO to notify the employee by certified letter of a confirmed positive test result[] . . . .

[Only the underlined portion is in dispute].

A. Positions of the Parties

The Agency contends that the petition for review as to the disputed portion of the proposal should be dismissed because it is too vague and its negotiability cannot be determined. According to the Agency, the disputed part of the proposal precludes the Agency from knowing "what procedures it was required to establish for the MRO to contact the employee directly." Statement of Position at 12.

The Union provided no arguments concerning this proposal.

B. Analysis and Conclusions

We reject the Agency's argument that the petition for review as to this proposal should be dismissed because it is too vague and its negotiability cannot be determined. Based on its plain wording, the proposal merely requires the Agency to establish a procedure by which the MRO can contact affected employees. Further, the Agency does not assert that the disputed portion of the proposal conflicts with applicable laws, rules or regulations, and no conflict is apparent to us. Accordingly, we conclude that Proposal III.B.1. is negotiable.

IX. Proposal IV.B.1

The employee will be granted reasonable administrative leave to take any drug test, participate in any drug testing meetings, attend any management sponsored educational training, and to review any information provided by management regarding the drug testing program.

[Only the underlined portion is in dispute].

A. Positions of the Parties

The Agency objects only to the portion of the proposal granting administrative leave for any drug test. In this connection, the Agency argues that, because the phrase "any drug test" is ambiguous, the negotiability of the proposal cannot be determined. Statement of Position at 12. According to the Agency, if the Union intended "any drug test" to mean only an Agency-required drug test, then the proposal would be negotiable, but if the phrase refers to drug tests not required by the Agency, then the proposal would be nonnegotiable "because the Agency is not permitted to grant administrative leave for an employee to take an unofficial drug test." Id.

Apart from citing our decision in American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 31 FLRA 95 (1988) (Federal Bureau Correctional Institution, Danbury), the Union provided no argument concerning this proposal.

B. Analysis and Conclusions

The plain wording of the disputed portion of this proposal requires administrative leave for "any drug test." The Union provided no information as to whether the phrase "any drug test" refers only to Agency-required tests or, in addition, to private drug tests. Id. In this connection, we note that a requirement to grant administrative leave for Agency-required drug tests would be negotiable. Federal Bureau Correctional Institution, Danbury, 31 FLRA at 99-100.

On the other hand, if the Union intended the phrase "any drug test" to include private drug tests, then information as to who would receive the test results and whether those results would be used by someone other than the MRO to assess the medical significance of results is necessary to determine whether the proposal is negotiable. See National Park Service, 43 FLRA at 874.

The record in this case does not contain information as to who would receive the test results and whether those results would be used by someone other than the MRO to assess their medical significance. Accordingly, we are unable to make a negotiability determination concerning this proposal. We note that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). Accordingly, the petition for review of Proposal IV.B.1 will be dismissed.

X. Proposal IV.C.6

Anonymous, statistical information maintained regarding drug testing shall include the race, sex, and age of those being tested.

A. Positions of the Parties

The Agency argues that the proposal directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. In this regard, the Agency asserts that a relatively small number of employees are affected by its drug testing program. Thus, according to the Agency, the release of information concerning the race, sex and age of those tested could result in the identification of specific employees. The Agency further asserts that permitting specific employees to be identified "would compromise the Agency's internal security policy of not identifying employees who use illegal drugs[.]" Statement of Position at 13.

The Agency also claims that section 503 of the Supplemental Appropriations Act of 1987, Pub. L. No. 100-17, (Pub. L. No. 100-17) prohibits the disclosure of drug testing information, except to designated persons, without an employee's consent. The Agency contends that, to the extent the proposal requires the release of statistical information which could reveal the identity of specific employees, the proposal is inconsistent with law and therefore nonnegotiable under section 7117(a)(1) of the Statute.

The Union provided no arguments regarding this proposal.

B. Analysis and Conclusions

At the outset, we reject the Agency's argument that the proposal is inconsistent with Pub. L. No. 100-17. Contrary to the Agency's assertion, the proposal does not require disclosure to anyone of the proposed statistics. The proposal requires only that the Agency maintain certain statistical data.

We also reject the Agency's argument that the proposal directly interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. In our view, this claim is based upon the Agency's interpretation of the proposal as requiring the disclosure of the requisite statistics. However, as we have noted, the proposal does not require the disclosure of that data. Thus, we find that the Agency has not demonstrated that the proposal directly interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. Accordingly, as no other basis on which to conclude that the proposal is nonnegotiable is argued or apparent, we conclude that proposal IV.C.6 is negotiable.

XI. Proposal IV.E.2

Urine specimens not tested for drugs on the day that they are collected will be refrigerated and frozen. If, when thawed out, the specimen shows visual signs of precipitated salts, the specimen will be discarded and a new specimen will be required for testing.

A. Positions of the Parties

The Agency argues that the proposal is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with section 2.7(e) of the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services, 53 Fed. Reg. 11979-89 (1988) (final Guidelines). In this regard, the Agency asserts that the final Guidelines grant only the MRO the authority to retest the same or another sample.

The Agency also argues that the proposal is inconsistent with sections 2.4(c) and (i) of the final Guidelines, which provide for the refrigeration of samples, if not tested within 7 days, and for their freezing when retained for long-term storage.

The Union provided no arguments regarding this proposal.

B. Analysis and Conclusions

In International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1516-18 (1991) (IFPTE, Local 128) (Proposal 10), we concluded that an identically worded proposal was inconsistent with sections 2.4(c) and (i) of the final Guidelines. Among other things, we found that the proposal required freezing the samples in situations where freezing is not permitted by the Guidelines. As we also found that the final Guidelines are Government-wide regulations, we concluded that the proposal was nonnegotiable under section 7117(a)(1) of the Statute. For the reasons stated more fully in IFPTE, Local 128, we conclude that Proposal IV.E.2 is nonnegotiable.

XII. Proposal IV.E.4

If an employee is unable to void a sufficient volume of urine (at least 60 ml) for drug testing, within a reasonable amount of time, he/she will be allowed to return the next day until the necessary amount of urine is voided.

A. Positions of the Parties

The Agency argues that the proposal is inconsistent with section 2.2(f)(1) of the final Guidelines, and therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

The Union provided no arguments regarding this proposal.

B. Analysis and Conclusions

The Authority has found proposals that are substantively the same as Proposal IV.E.4 nonnegotiable under section 7117(a)(1) of the Statute on the basis that they are inconsistent with section 2.2(f)(1) of the final Guidelines. See National Park Service, 43 FLRA at 883 (citations omitted); see also American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439, 1446-47 (1990) (Sierra Army Depot) (Member Talkin dissenting as to other matters). In those cases, we found that similar proposals did not allow for compliance with the instructions set forth in the final Guidelines in the event that an employee could not provide a sufficient sample for testing. For the reasons more fully discussed in Sierra Army Depot, we find that Proposal IV.E.4 is inconsistent with the final Guidelines, and therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

XIII. Proposal IV.F.1.

If an employee is able to provide more than 60 milliliters of urine, and so requests, the collection site co-coordinator shall provide an additional split sample container with a tamperproof seal, which shall be sealed, labeled and signed for along with the official agency sample in accordance with HHS Guidelines. The split sample will be given to the employee along with instructions regarding proper storage and maintenance of chain of custody records in accordance with HHS Guidelines. Such instructions shall contain chain of custody form blanks and a listing of independent laboratories qualified to conduct urine sample analysis for drugs in accordance with the HHS Guidelines.

A. Positions of the Parties

The Agency claims first that the negotiability of this proposal cannot be determined because the proposal does not specify who would receive the results of a split sample, and whether those results would be used by someone other than the MRO. Thus, according to the Agency, the petition for review as to Proposal IV.F.1 should be dismissed.

Next, the Agency argues that the proposal is inconsistent with the final Guidelines. In this connection, the Agency contends that the proposal provides an employee with an opportunity to refute the results of the official drug test. According to the Agency, the final Guidelines require that the MRO make the final medical decision as to whether a drug test indicates illegal drug use. Finally, the Agency alleges that, interpreted in this manner, the proposal is also inconsistent with its right to determine its internal security practices section 7106(a)(1) of the Statute.

The Union provided no arguments regarding this proposal.

B. Analysis and Conclusions

We find that the record is not sufficient for us to make a negotiability determination regarding this proposal. Therefore, we will dismiss the petition for review as to Proposal IV.F.1.

In both National Park Service, 43 FLRA at 869-872, and IFPTE, Local 128, 39 FLRA 1518-22, we dismissed petitions for review of proposals that were similar to Proposal IV.F.1. on the basis that the records were not sufficient for us to make a negotiability determination. In particular, we found, as is the case here, that the records were silent as to the purpose of the second test, to whom the results of the second test would be given, and whether the results would be reported to someone other than the MRO to assess the medical significance of the results. We stated that information concerning these matters was necessary for determining the negotiability of such proposals. See National Park Service, 43 FLRA at 871-72 (and cases cited therein).

Based on the plain wording of the proposal, we conclude that it is clearly intended to enable an employee to obtain a second test. As the record here is devoid of any information concerning the purpose of the second test, who would receive the results of the second test, and whether anyone other than the MRO would use the results, we find, consistent with National Park Service and IFPTE, Local 128, that we are unable to make a negotiability determination concerning this proposal. Accordingly, we will dismiss the Union's petition for review as to Proposal IV.F.1.

XIV. Proposal IV.G.13.

A copy of Q[uality] C[ontrol] data and QC charts shall be sent to the MRO with each batch of drug testing samples. The Union may upon request receive copies of all QC charts and QC data. Should QC data and/or QC charts exceed the working limits, the MRO will notify the Union, DHHS, etc., and testing of urine samples will be discontinued until QC data and QC charts again conform to HHS Guidelines.

[Only the underlined portion is in dispute].

A. Positions of the Parties

The Agency alleges that the third sentence of Proposal IV.G.13 is inconsistent with the final Guidelines. In this regard, the Agency asserts that the proposal requires the discontinuance of drug testing if the QC data and/or QC charts do not meet technical standards. The Agency claims that the discontinuance of testing is not required by the Guidelines in the event that the laboratory fails to meet the standards.

The Agency also argues that the proposal directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices, because the "Agency has the right to decide which option to follow in implementing its drug testing program if there is a technical error[,]" while the proposal requires the Agency to discontinue drug testing. Statement of Position at 17.

The Union provided no arguments regarding this proposal.

B. Analysis and Conclusions

We find that the proposal directly interferes with management's right under section 7106(a)(1) to determine its internal security practices. Proposals which limit management's discretion to require that employees be tested for illegal drugs directly interfere with the exercise of that right. Justice Management Division, 42 FLRA at 453. Proposal IV.G.13 would require the Agency to suspend testing samples as long as its laboratory failed to meet certain technical standards. The effect of the proposal would be to stop all Agency drug testing for an indefinite period of time. As such, the proposal would preclude the Agency from exercising its discretion to require that employees be tested for the use of illegal drugs during certain periods. Thus, we conclude that the proposal directly interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its internal security practices. In the absence of an assertion that the proposal constitutes an appropriate arrangement under section 7106(b)(3), we do not address that issue and we find that Proposal IV.G.13 is nonnegotiable. Further, because we have determined that the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute, we need not address the Agency's other contentions concerning the proposal.

XV. Proposal V.A.1

Prior to implementation of the drug testing program, and annually after implementation, every bargaining unit member will be given the opportunity to participate in comprehensive training about the drug testing program and the Employee's [sic] Assistance Program. Such training shall be prepared by an official trained and qualified to provide such training.

[Only the underlined portion is in dispute].

A. Positions of the Parties

The Agency argues that the proposal directly interferes with management's right under section 7106(a)(2)(B) of the Statute to assign work. In this connection, the Agency asserts that "the qualifications of . . . employee[s] . . . [are] a matter for management to determine." Statement of Position at 18.

The Union provided no arguments regarding this proposal.

B. Analysis and Conclusions

As we noted in conjunction with our analysis of Proposal II.A.4, agencies retain the right to determine the qualifications of a position and the skills and job-related individual characteristics needed to perform work. This authority is encompassed in the right to assign work under section 7106(a)(2)(B) of the Statute. See HCFA, Baltimore, 44 FLRA at 1503. Proposals that require an agency to restrict work assignments to qualified personnel directly interfere with the exercise of management's right to assign work under section 7106(a)(2)(B). Defense Mapping Agency, 39 FLRA at 567.

To the extent that the Agency is arguing that the proposal precludes management from determining the qualifications of those officials assigned to provide training on the Agency's drug testing and employee assistance programs, we disagree. Nothing in the plain wording of Proposal V.A.1 precludes the Agency from determining the qualifications necessary to provide the required training. Rather, the proposal simply requires that the Agency ensure that those employees responsible for providing the training are qualified to do so. As the proposal does not prevent management from determining the qualifications of the employees it would assign to provide the requisite training, we conclude that the proposal does not interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. As there is no other basis on which to find that the proposal is nonnegotiable, we further conclude that Proposal V.A.1 is negotiable.

XVI. Proposal VI.H

An employee who voluntarily admitts [sic] to the use of illegal drugs, is rehabilitated, and then remains drug-free shall remain exempt from disciplinary action.

A. Positions of the Parties

The Agency argues that the proposal directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency asserts that the proposal prevents management from taking disciplinary action against an employee who has completed rehabilitation in all cases. In this connection, the Agency contends that the proposal exempts an employee from "all discipline for past illegal drug use and possible future illegal drug usage." Statement of Position at 18. The Agency also argues that the proposal directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.

The Union cites our decision in American Federation of Government Employees, Local 1692 and U.S. Department of the Air Force, Mather Air Force Base, California, 40 FLRA 868 (1991) (Mather Air Force Base), as support for its argument that this proposal is negotiable.

B. Analysis and Conclusions

Proposals that preclude management from taking disciplinary action against employees for a particular offense directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. See Mather Air Force Base, 40 FLRA at 873. Based on its plain wording, Proposal VI.H would exempt an employee from disciplinary action for any offense, as long as the employee remained drug-free. That is, the Agency would be precluded not only from imposing disciplinary action for the use or possession of illegal drugs, but also for conduct, whether related or unrelated to the use or possession of illegal drugs. We conclude, therefore, that the proposal directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. Consequently, Proposal VI.H is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3).

To determine whether a proposal that directly interferes with management's rights is nevertheless negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute, the Authority determines whether the proposal constitutes an arrangement and, if it does, whether the proposed arrangement is appropriate. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (KANG). With regard to the latter point, we examine the competing practical needs of the parties and determine whether the negative impact on management's rights is disproportionate to the benefits that the arrangement confers on employees such that the proposal excessively interferes with management's rights. See id. at 33.

With respect to whether the proposal constitutes an arrangement, we note that the Agency asserted in its allegation of nonnegotiability that the proposal did not constitute an appropriate arrangement. In response, the Union cited, in its petition for review, our decision in Mather Air Force Base, where appropriate arrangement arguments were raised and addressed. Moreover, Proposal VI.H, as plainly worded, would shield from the adverse effects of disciplinary action those employees who voluntarily cooperate with the Agency's drug testing program and who undertake rehabilitation. See Mather Air Force Base, 40 FLRA at 873. In these circumstances, we assume, for the purposes of this decision, that the proposal is intended to constitute, and constitutes, an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute.

However, we conclude that the proposal excessively interferes with management's rights. In this regard, the Agency argues that the proposal exempts employees from "all discipline" after undergoing rehabilitation, for "past illegal drug use and possible future illegal drug usage." Statement of Position at 18. Based on the plain wording of the proposal, we agree. As such, the disputed proposal would give employees an opportunity to complete a rehabilitation program without fear of receiving a disciplinary penalty. However, Proposal VI.H provides that benefit to employees at the cost, as we noted above, of the Agency's ability to initiate any disciplinary action for any conduct, whether or not related to the use of illegal drugs.

We find that the benefit to employees that would result from the restriction on the Agency's ability to initiate disciplinary action against those employees, and from the increased incentive to complete rehabilitation, does not outweigh the burden on management of the prohibition against initiating disciplinary actions. See American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203, 1215-16 (1990) We conclude, therefore, that Proposal VI.H excessively interferes with the exercise of management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Consequently, we further conclude that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) and is nonnegotiable.

XVII. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposals III.A, III.B.1, IV.C.6 and V.A.1.(3) The petition for review is dismissed as to the following proposals: I, II.A.4, II.B.3, II.B.4, II.C.1.d, IV.B.1, IV.F.1, IV.E.2, IV.E.4, IV.G.13, and VI.H.




Concurring Opinion Of Member Armendariz

I concur with my colleagues' finding that Proposal VI.H directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute and with their ultimate finding that Proposal VI.H is nonnegotiable. However, I do not join in my colleagues' appropriate arrangement analysis. In my view, the record is insufficient to allow a determination to be made as to whether the proposal is an appropriate arrangement.

The Union has made no claim that the proposal is intended as an appropriate arrangement. Rather, because the Union cites our decision in American Federation of Government Employees, Local 1692 and U.S. Department of the Air Force, Mather Air Force Base, California, 40 FLRA 868 (1991) (Mather Air Force Base), where we determined that a proposal which precluded discipline against employees who voluntarily admitted that they use, or had used, illegal drugs was negotiable as an appropriate arrangement, my colleagues assume that the Union intends Proposal VI.H as an arrangement. Even were I willing to join my colleagues in assuming that Proposal VI.H is intended as an arrangement within the meaning of section 7106(b)(3) of the Statute,(*) I would find that the Union has failed to provide even a scintilla of information as to the extent or the nature of the benefits that the proposal would provide to adversely affected employees. In other words, I would find that the record does not contain information sufficient to permit an informed decision as to whether Proposal VI.H is an appropriate arrangement under section 7106(b)(3) of the Statute. See American Federation of Government Employees, Local 2145 and U.S. Department of Veterans Affairs, Hunter Holmes McGuire Medical Center, Richmond, Virginia, 48 FLRA 53, 59-60 (1993)(Member Talkin, concurring).

Merely citing our decision in Mather Air Force Base, without providing any other information in the record, does not enable the Authority to make an informed determination as to how the proposal is intended to operate as an appropriate arrangement, or whether the proposal excessively interferes with the exercise of a management right. In this regard, I note that in Mather Air Force Base, not only was the proposal at issue substantively different from Proposal VI.H, the union provided information as to the nature and extent of the benefits that the proposal would provide to adversely affected employees. In the instant case, the Union has a burden and had an opportunity to identify any number of matters with regard to the nature and extent of the benefits that Proposal VI.H would provide to adversely affected employees that could have informed the Authority's consideration of this proposal. It did not satisfy this burden and it did not seize upon this opportunity. A