49:0225(26)NG - - International Federation of Professional and Technical Engineers ( IFPTA )and Navy, Norfolk Naval Shipyard, Portsmouth, Virginia - - 1994 FLRAdec NG - - v49 p225



[ v49 p225 ]
49:0225(26)NG
The decision of the Authority follows:


49 FLRA No. 26

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL FEDERATION OF PROFESSIONAL AND

TECHNICAL ENGINEERS

LOCAL 1

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NORFOLK NAVAL SHIPYARD

PORTSMOUTH, VIRGINIA

(Agency)

0-NG-2107

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 4, 1994

_____

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). The appeal concerns eight proposals regarding the Agency's Drug Free Workplace Program.(2) Many of the proposals contain modifications to or deletions from provisions of an Agency regulation entitled OPNAVINST 5355.

Proposal 1 would preclude the use of drug test results to uphold disciplinary action if there is a deviation from the Mandatory Guidelines for Federal Workplace Drug Testing Programs, as promulgated by the Department of Health and Human Services (HHS Guidelines), which could give rise to unreliable drug test results. We find that Proposal 1 is nonnegotiable because it directly and excessively interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.

Proposal 2 would eliminate the responsibility of the Drug Program Coordinator (DPC) to report to the security officer any request for safe harbor of an employee possessing a current security clearance under OPNAVINST 5510.1H. Proposal 3 would permit employees to seek safe harbor protection directly from the Civilian Employee Assistance Program (CEAP) counselor and require the CEAP counselor to maintain documentation related to safe harbor requests. Proposal 3 also addresses the release of counseling and rehabilitation information. We find that Proposal 2 and portions of Proposal 3 are nonnegotiable because they directly and excessively interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. We find that the portion of Proposal 3 concerning the release of information is negotiable.

Proposal 4 would lengthen the notice period provided to employees of random drug testing from 15-30 minutes, provided by the Agency's regulation, to approximately 1 hour. The Authority finds that Proposal 4 is nonnegotiable because it directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

Proposal 6 would require the Agency to remove any employee who tests positive for illegal drugs from the chain of custody of drug test specimens. We find that Proposal 6 directly and excessively interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

Proposal 7 would provide a variety of technical requirements to be followed by the drug testing laboratory used by the Agency. We find that sections 7.1, 7.2, 7.7, and 7.11 are negotiable because they are not inconsistent with the HHS Guidelines and because they do not interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. We also find that sections 7.4 and 7.9 are negotiable because they are not inconsistent with the Guidelines, or any law, rule, or regulation. Section 7.3 is nonnegotiable because it would directly and excessively interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Sections 7.5, 7.6, and 7.8 are nonnegotiable under section 7117(a)(1) of the Statute because they are inconsistent with the HHS Guidelines.

Proposal 8 would preclude the Agency from taking disciplinary action against an employee who tests positive for illegal drugs until the employee has exhausted all grievance arbitration and appeal procedures. We find that Proposal 8 is a negotiable procedure under section 7106(b)(2) of the Statute.

Proposal 9 would exclude volunteers from the number of testing designated positions used in calculating the number of drug tests that will be conducted during each fiscal year. Based on the record before us, we are unable to determine whether Proposal 9 is negotiable. Accordingly, we will dismiss the petition for review as it relates to this proposal.

II. Proposal 1

If it is established that HHS Guidelines are not followed, which could give rise to questionable test results, the test results cannot be used to uphold disciplinary action.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 1 is inconsistent with Executive Order 12564 and Federal Personnel Manual (FPM) Letter 792-19. The Agency claims that section 5(d) of the Executive Order and section 5.d(8) of FPM Letter 792-19 require the separation of an employee for the use of illegal drugs, under certain circumstances, regardless of whether the drug use adversely affects the employee's job performance. In support of its contention, the Agency cites American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412 (1991) (Justice Management Division). The Agency argues that the proposal would prevent the Agency from removing an employee if the conditions contained in the proposal were not met. Despite the Union's claim that management could still propose disciplinary action once it has a verified test, the Agency asserts that the proposal would actually prevent management from relying on the test results and that disciplinary action could not be sustained without the use of the test results.

Also contrary to the Union's statement of intent, the Agency claims that the plain language of the proposal is not limited to "substantive" deviations from the HHS Guidelines. Statement of Position at 3. The Agency argues that the application of the proposal would not be limited to situations where there was proof that the failure to follow the HHS Guidelines actually affected the test results. Rather, the Agency asserts that in any case where questionable results could arise from a failure to follow procedures, it would be barred from using the results to support disciplinary action. The Agency further argues that if it were subsequently determined that the deviation from the HHS Guidelines did not in fact affect the validity of the test results, the proposal would still preclude using those test results to support disciplinary action if the deviation could have given rise to questionable results. The Agency claims that the Authority has held that the decision to initiate disciplinary action based upon available evidence, whatever the quality of that evidence, is committed to management's discretion under section 7106(a)(2)(A). Therefore, the Agency argues that the proposal directly interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute because it would prevent the Agency from imposing discipline in certain circumstances, even where an employee has tested positive for illegal drug use. For the same reason, the Agency asserts that the proposal interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

Finally, the Agency disputes the Union's contention that the proposal is an appropriate arrangement for employees adversely affected by management's rights to discipline and to determine internal security practices. The Agency claims that the Union has not explained how the proposal would ensure adherence to the HHS Guidelines and, therefore, how it would benefit employees. Moreover, the Agency contends that the proposal's blanket prohibition on the use of drug test results that "could have resulted in a questionable test result[]" would excessively interfere with its rights. Id. at 8 (emphasis in original).

2. Union

The Union contends that a deviation from the HHS Guidelines that could give rise to a questionable test result is a substantive deviation. According to the Union, a "minor discrepancy" would not give rise to a questionable test result. Response at 4. The Union explains that the proposal "deals with the employee's response to a proposed [adverse action], and the deliberations which the deciding official and/or Arbitrator may take in determining whether the action was warranted, provided the employee/Union or the Agency itself establishes there was a substantive deviation from the Guidelines." Petition for Review at 1. The Union also claims that under its proposal the Agency must rerun the sample or obtain another sample to ensure that a deviation from the HHS Guidelines does not result in an inaccurate test. The Union asserts that the Agency's decision to use the results of the second test to uphold disciplinary action would not conflict with the proposal.

The Union also contends that Proposal 1 does not conflict with Executive Order 12564 or with FPM Letter 792-19. The Union claims that the Agency has misinterpreted the initiation of a removal action required by the Executive Order and the FPM Letter to encompass separation. The Union also notes that although FPM Bulletin 792-49(6) requires the Agency to initiate a removal action, the Merit Systems Protection Board (MSPB) has held that the initiation of a removal action is not equivalent to mandatory separation. The Union maintains that the Authority also has not interpreted the initiation of a removal action as synonymous with separation or that all proposed removal actions must result in separation. In support of its argument, the Union claims that in National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279 (1992) (Nuclear Regulatory Commission), the Authority found negotiable a proposal that required that disciplinary action be stayed until the earlier of the completion of the grievance procedure or 90 days. The Union further claims that the Agency has misinterpreted the Authority's decision in Justice Management Division.

The Union also asserts that the proposal is consistent with section 4(d) of the Executive Order and section 4(e) of the FPM Letter, which require that the Department of Health and Human Services promulgate scientific and technical guidelines for drug testing programs. According to the Union, agencies are required to conduct their drug testing programs in accordance with those guidelines.

Finally, the Union claims that the proposal is an appropriate arrangement for employees adversely affected by the exercise of management's rights under section 7106(b)(3) of the Statute. The Union maintains that employees should not be penalized through unwarranted disciplinary action based on questionable drug test results. In this regard, the Union explains that employees are adversely affected by drug testing and the related loss of privacy, the imposition of disciplinary action and its potential financial burden, and the embarrassment of a false positive test result. According to the Union, the proposal is intended to provide greater protection to the employees by ensuring that the Agency adheres to the HHS Guidelines and that employees are not penalized by unreliable drug test results. In this regard, the Union claims that the proposal does not excessively interfere with the Agency's right to determine its internal security practices because the Agency is already required to adhere to the HHS Guidelines. The Union further claims that if the drug test results are questionable, the Agency will be able to rerun the samples or obtain new samples and will not be precluded from assessing disciplinary action based on a second test result. While conceding that the proposal may infringe on the right to discipline, the Union claims that such interference is "minimal." Response at 7.

B. Analysis and Conclusions

First, we reject the Agency's claim that the Union's statement of intent does not comport with the plain wording of the proposal. The Union claims that Proposal 1 is intended to ensure that employees are protected from disciplinary action based on questionable drug test results following a substantive deviation from the HHS Guidelines. Although Proposal 1 does not contain the word "substantive," we find nothing in the Union's explanation that would conflict with the language of the proposal. Accordingly, we will determine the negotiability of the proposal based on the Union's stated intent.

In our view, Proposal 1 directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. It is well established that proposals that preclude management from taking disciplinary action against an employee for a particular offense directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. See American Federation of Government Employees, Local 1692 and U.S. Department of the Air Force, Mather Air Force Base, California, 40 FLRA 868, 873 (1991). More specifically, we have found that proposals that restrict the evidence on which an agency may rely to support disciplinary action directly interfere with the right to discipline. See, for example, American Federation of Government Employees, Local 1603 and U.S. Department of the Navy, Naval Air Warfare Center, Patuxent River, Maryland, 47 FLRA 311, 315 (1993) (Naval Air Warfare Center), and cases cited therein. Because the proposal would prevent the Agency from using drug test results to uphold disciplinary action under certain circumstances, we find that it directly interferes with management's right to discipline. Unless the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, the proposal is nonnegotiable.

In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994) (Member Armendariz, concurring in part and dissenting in relevant part). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate, or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. KANG, 21 FLRA at 31-32.

Even assuming that Proposal 1 constitutes an arrangement for adversely affected employees, we find that the proposal is nonnegotiable because it would excessively interfere with the exercise of management's right to discipline. The proposal would benefit employees by assuring that the Agency adheres to the HHS Guidelines and that drug tests are performed accurately. If the Agency failed to follow the HHS Guidelines in conducting a drug test, Proposal 1 would preclude the Agency from using those drug test results to support disciplinary action against the employee for illegal drug use when, in the Agency's view, discipline is appropriate. In this regard, the employees are protected from unwarranted disciplinary action based on unreliable drug test results. We view these benefits as significant.

However, Proposal 1 is silent as to who would determine, as an initial matter, that there has been a deviation from the HHS Guidelines in conducting a drug test. According to the Union, the proposal would allow it or an employee to decide what constitutes a substantive deviation and whether one has occurred. In our view, the proposal would impermissibly infringe on the Agency's ability to decide, based on all the available evidence, that disciplinary action is appropriate and supportable. Thus, if an employee tested positive for illegal drug use and the employee or the Union claimed that a substantive deviation from the Guidelines had occurred, the proposal would constitute an outright ban on the Agency's ability to use the test result as a basis for disciplinary action despite the fact that the employee had tested positive for illegal drug use. Consequently, we conclude that Proposal 1 is nonnegotiable because it excessively interferes with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute. See Naval Air Warfare Center, 47 FLRA at 317.

In view of our decision, we do not address the Agency's arguments regarding Executive Order 12564, FPM Letter 792-19, and section 7106(a)(1) of the Statute.

III. Proposals 2 and 3

Proposal 2

The Union proposes to delete the bracketed language from OPNAVINST 5355.6(b)11:

The Drug Program Coordinator (DPC) will: Report to the activity security officer any verified positive test result [or request for safe harbor] of an employee possessing a current security clearance per OPNAVINST 5510.1H.

Proposal 3

The Union proposes to add the underscored language to OPNAVINST 5355, Encl. 2, sect. 1(a) and substitute underscored language in OPNAVINST 5355, Encl. 2, sect. 1(d) and in OPNAVINST 5355, Encl. 2, sect. 2:

1. Safe harbor insulates the employee from discipline for admitted past acts of illegal drug use including possession incident to such use when the agency is unaware of such use, provided the employee:

a. Voluntarily identifies himself or herself as an illegal user of drugs to the activity head/commander, via the immediate supervisor and the DPC, or the CEAP C & R Counselor, prior to being identified through other means.

d. In accordance with applicable regulations, consents to the release of information related to counseling and rehabilitation, including urinalysis test results. In order to maintain safe harbor status the employee may not revoke this consent to release of information.

2. An employee who admits to drug use after being notified that he or she is scheduled for a test or just after a sample is collected, or who is found to use drugs on the basis of other appropriate evidence (e.g., direct observation or evidence obtained from an arrest or criminal conviction) is not eligible for safe harbor. For example, an employee arrested over the weekend on drug-related charges is released and reports to work as usual on Monday requesting safe harbor. Since the shipyard commander is unaware of the arrest, he/she signs the agreement. A safe harbor agreement signed under these circumstances will be considered invalid and obtained by the employee under false pretenses. Any request or agreement denied or invalidated must be fully documented and maintained by the CEAP.

The Union proposes to add the underscored language after "via" in OPNAVINST 5355, Encl. 2, App. A:

(1) Immediate Supervisor or

(2) Activity DPC or

(3) CEAP C&R Counselor

A. Positions of the Parties

1. Agency

The Agency contends that Proposals 2 and 3 are nonnegotiable because they directly and excessively interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency also contends that Proposal 3 directly and excessively interferes with its right to discipline under section 7106(a)(2)(A) of the Statute. The Agency asserts that by eliminating the requirement that the DPC notify the security officer of an employee's request for safe harbor and by designating the CEAP counselor as an alternative individual from whom an employee may request safe harbor, Proposals 2 and 3 would delay notification to the security officer of an employee's admission of illegal drug use. The Agency claims that such notification is critical to the Agency's obligation to ensure that all matters affecting national security are promptly brought to the attention of the security officer.

The Agency explains that the purpose of implementing a drug testing program for its civilian employees is to ensure that employees and Government property are protected from injury and damage caused by employees under the influence of illegal drugs and to protect national security by removing employees from sensitive positions if they are found to be illegal drug users. In addition, the Agency states that the security officer is responsible for taking administrative action that will prevent these types of work-related disasters. The Agency contends that Proposals 2 and 3 would delay or prevent the DPC from notifying the security officer of employees identified as illegal drug users and, therefore, would interfere with the responsibility to remove those employees from sensitive positions pending their successful completion of a rehabilitation program. The Agency argues that the Authority has determined that proposals that prevent management from carrying out its responsibilities to protect its employees and property from injury and damage are nonnegotiable because they interfere with management's right to determine its internal security practices.

The Agency also contends that section 5(c) of Executive Order 12564 and FPM Letter 792-19 require that the Agency remove from sensitive positions employees who are found to use illegal drugs. In complying with this requirement, the Agency claims that its Drug Free Workplace Program (DFWP) provides that the security officer must be notified by the DPC when an employee seeks safe harbor so that the security officer can determine whether the employee may remain in a sensitive position. Because Proposal 2 would prevent the DPC from directly notifying the security officer of an employee's request for safe harbor, the Agency asserts that it circumvents the crucial first step in ensuring that an illegal drug user is removed from a sensitive position pending successful completion of a rehabilitation program. Therefore, the Agency maintains that Proposal 2 is inconsistent with Executive Order 12564 and FPM Letter 792-19. In addition, the Agency asserts that Proposal 2 would affect all employees subject to random drug testing and not just bargaining unit members.

The Agency further notes, with respect to Proposal 3, that the CEAP counselor is often a contractor and not an employee of the Agency. The Agency contends that by attempting to substitute, rather than add, the CEAP counselor as an official to be notified when an employee seeks safe harbor, the proposal would delay notification of a management official until after the employee has met with the CEAP counselor and signed a release of information to the management officials. The Agency claims that this is contrary to section 2.7(c) of the HHS Guidelines, which requires that following a positive drug test result, the Medical Review Officer (MRO) refer the case to the agency's employee assistance program (EAP) and to the management official empowered to take administrative action.

The Agency argues that Proposals 2 and 3 are not appropriate arrangements under section 7106(b)(3) because they excessively interfere with management's rights. The Agency asserts that employees are not adversely affected by being required to participate in a random drug testing program because the vast majority of employees test negative and are not subject to any adverse affects. The Agency claims that the adverse affects of drug testing programs identified by the Authority in prior decisions are results of testing positive for illegal drug usage. However, even assuming that an employee could be adversely affected by seeking safe harbor, the Agency contends that the Union's attempt to prevent notifying the security officer until the employee discusses the request with a CEAP counselor and signs a release does nothing more than delay eventual notification. Consequently, the Agency claims that the proposals would not benefit, compensate, or alleviate an adverse effect that might occur. In support of its contention, 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), in which the court held that arrangements under section 7106(b)(3) of the Statute must be tailored to redress those employees adversely affected by a management action.

However, if the Authority finds that the proposals are arrangements, the Agency contends that they are not appropriate because the benefits provided to the employees do not outweigh the burdens imposed on the exercise of management's rights. The Agency claims that an employee who is seeking safe harbor because of illegal drug use must be removed from a sensitive position and that discussing the matter with a CEAP counselor before notifying the security officer will not change that outcome. In addition, the Agency notes that an employee seeking safe harbor is referred to a CEAP counselor immediately after notifying his or her supervisor, regardless of the nature of the employee's position.

2. Union

The Union contends that the Agency's regulations do not require the immediate notification of the security officer of an employee's request for safe harbor and that the Agency has not identified a law, rule or regulation that mandates such notification. The Union asserts that OPNAVINST 5355, encl. 2, provides that obtaining counseling or rehabilitation through the CEAP is the second condition to safe harbor after the employee identifies himself as an illegal drug user. Therefore, the Union claims that if an employee reports to the CEAP and signs the release, the CEAP will immediately notify security and there will be no delay as argued by the Agency. The Union argues that Agency regulations do not preclude notifying the security officer through the CEAP. The Union further claims that this procedure does not conflict with section 5(c) of the Executive Order because an employee will not be allowed to remain in a sensitive position. The Union explains that the employee will not return to work but, instead, will report directly to the CEAP.

The Union asserts that the Agency's arguments regarding an employee who discloses illegal drug use to a CEAP counselor and fails to sign a release or seek safe harbor are unfounded. According to the Union, an employee would not be entitled to safe harbor without signing the release, and as part of the safe harbor agreement, the employee must consent in writing to the disclosure of all counseling and rehabilitation records related to illegal drug use to the appropriate management and CEAP officials. The Union maintains that the Agency's regulations have a provision that invalidates a safe harbor agreement if certain conditions have not been met and would do so regardless of which official received the safe harbor request. The Union also disputes the Agency's claim that the proposal would affect all employees and not just bargaining unit members. The Union asserts that it is bargaining on behalf of its members only. Therefore, the Union maintains that the proposal would apply only to bargaining unit members unless the Agency elects to apply it to managers or to rely on it in negotiations with other unions.

With respect to management's right to determine its internal security practices, the Union concedes that Proposal 2 interferes with the exercise of that right and that Proposal 3 "minimally" interferes with that right. Response at 24. However, the Union contends that Proposals 2 and 3 are appropriate arrangements for employees adversely affected by the exercise of a management right. In this regard, the Union claims that an employee who seeks safe harbor is, in effect, notifying the employer of his prior illegal drug use and, therefore, providing information that the employer might never have obtained without such an admission. The Union argues that the negative impact on employees is the loss of confidentiality and other consequences that the disclosure of information will have on employees. The Union also disputes the Agency's argument that only an employee who tests positive is adversely affected by the implementation of a drug testing program. The Union contends that an employee is as adversely affected by a false negative test result as by a false positive test result because in the case of a false negative result, the illegal drug user has gone undetected and will pose a danger to him or herself, coworkers, and the Agency. In addition, the Union asserts that employees who ultimately test negative are adversely affected by the anxiety they may suffer while awaiting their test results.

The Union further contends that the Authority and the courts have determined that the invasion of an employee's privacy by a drug testing program is an adverse effect. The Union argues that the proposals protect the confidentiality of an employee's disclosure of prior illegal drug use by limiting the number of persons who are advised of an employee's prior illegal drug use. The Union explains that CEAP personnel are directed to follow certain Federal regulations regarding confidentiality that do not apply if the DPC directly notifies the security officer of a safe harbor request. In addition, the Union claims that the proposals do not preclude an employee from seeking safe harbor from the DPC, his immediate supervisor, or a higher management official and that notification "via [the] CEAP" would not impose an additional burden on management. Id. at 19. The Union also explains that an employee seeking safe harbor is subject to temporary and possibly permanent loss of security clearance and that an employee who seeks rehabilitation on his or her own may be subject to disciplinary action for prior illegal drug use. However, as the proposals do not allow an employee who seeks safe harbor to retain a security clearance or limit the release of any counseling or rehabilitation records to appropriate management or CEAP officials, the Union claims that the interference with management's rights to determine its internal security practices and discipline is minimal.

The Union also contends that Proposal 2 is not inconsistent with the Executive Order because section 2(b)(4) of the Order provides that each agency DFWP include provisions for self-referral with maximum respect for confidentiality consistent with safety and security issues. As to Proposal 3, the Union claims, contrary to the Agency's argument, that the proposal does not conflict with the HHS Guidelines because: (1) the Guidelines do not address safe harbor requests; (2) the proposal does not preclude the release of counseling and rehabilitation records; and (3) the proposal does not preclude the MRO from reporting verified positive test results to the appropriate management officials. In addition, the Union asserts that the Agency's regulations already limit management's ability to discipline when an employee seeks and meets the conditions of safe harbor.

B. Analysis and Conclusions

1. Proposal 2 and Proposal 3, Encl. 2, sect. 1(a), sect. 2, and App. A

We find that Proposal 2 and Proposal 3, Encl. 2, sect. 1(a), sect. 2, and App. A, are nonnegotiable because they excessively interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. In this regard, the Union concedes that these proposed matters interfere with the exercise of that management right. In agreement, we find that Proposal 2 and the referenced portions of Proposal 3 directly interfere with the exercise of management's rights under section 7106(a)(1) of the Statute. More particularly, we find that the delay in removing an employee from a sensitive position that would be occasioned by not reporting a safe harbor request to the DPC, security officer, activity head, or supervisor, as appropriate, or by requiring the CEAP counselor, rather than the DPC, to document denials of safe harbor requests constitutes direct interference with the Agency's right to determine its internal security practices. In this connection, the Authority has held that certain proposals that precluded an agency from exercising a management right unless or until other events occurred directly interfered with that right. See American Federation of Government Employees, Local 1345 and U.S. Department of the Army, Headquarters, Fort Carson and Headquarters, 4TH Infantry Division, Fort Carson, Colorado, 48 FLRA 168, 171-75 (1993) (Fort Carson) (proposal that conditioned the assignment of certain work on the prior amendment of position descriptions directly interfered with agency's right to assign work). In this case, the Agency is involved with national defense and, in that capacity, should be notified immediately of all matters affecting its internal security practices, including matters that affect an employee's ability to remain in a sensitive position. Proposal 2 and the cited portions of Proposal 3 would prevent the Agency from promptly removing employees occupying sensitive positions, thereby precluding the Agency from exercising its rights under section 7106(a)(1) of the Statute.

Next we address the Union's claim that Proposals 2 and 3 are appropriate arrangements under section 7106(b)(3) of the Statute. Even assuming, for purposes of our decision, that Proposals 2 and 3 are arrangements for adversely affected employees, we find that the proposals are nonnegotiable because they would excessively interfere with the exercise of management's right to determine its internal security practices.

The Agency's safe harbor program immunizes an employee from disciplinary action for prior use of illegal drugs, provided the employee satisfies certain requirements. Under Proposal 2, the DPC would not be required to inform the security officer of an employee's request for safe harbor until the CEAP counselor releases that information after the employee has signed a consent form. Proposal 3 would permit bargaining unit employees to request safe harbor directly from the CEAP counselor as an alternative to the DPC or the employee's immediate supervisor and to substitute the CEAP counselor for the DPC as the individual charged with documenting and maintaining safe harbor requests that are denied or invalidated. According to the Union, the proposals would afford an employee seeking safe harbor a greater degree of confidentiality related to his or her disclosure of illegal drug use. In addition, the Union states that there would be no delay in notifying the security officer because once an employee reports to the CEAP and signs a release, the CEAP counselor would advise security of the employee's request for safe harbor.

Although employees may be afforded certain benefits under the proposal, we find that those benefits are outweighed by the burden placed on the Agency's right to determine its internal security practices. While the Agency's safe harbor program provides employees who voluntarily admit to illegal drug use with immunity from disciplinary action under certain circumstances, the Agency is entitled to direct notification of all matters affecting national security, including matters affecting an employee's ability to remain in a sensitive position. By eliminating the requirement that the DPC notify the security officer of an employee's request for safe harbor, Proposal 2 would withhold such direct notification until the CEAP counselor notifies the security officer following an employee's signing of a release form. Inherent in the proposal is a delay in notifying the appropriate Agency officials that an employee has requested safe harbor. Although the union concedes that management would retain the right to remove employees, the delay that would be occasioned by the proposal would impair the Agency's ability to remove promptly from a sensitive position an employee who has admitted illegal drug use. Similarly, by avoiding notification of the DPC or an employee's immediate supervisor, and instead notifying the CEAP counselor, Proposal 3 could delay immediate action against employees who have disclosed their drug use and occupy sensitive positions that are central to the Agency's mission. This delay would be present in all instances where an employee had chosen to notify the CEAP counselor.

In addition, the proposals do not address the Agency's concerns regarding an employee who makes a safe harbor request and then does not sign a release form. In such a situation, an employee has admitted that he or she is an illegal drug user but, because the employee has not signed the release form, the CEAP counselor would not be required to notify the security officer of the employee's disclosure. As a result, an employee who is using drugs would continue to remain on duty in a sensitive position until the Agency has identified the employee as a drug user through other means. Under such circumstances, we find, on balance, that Proposal 2 and Proposal 3, Encl. 2, sect. 1(a), sect. 2, and App. A, excessively interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) and are not appropriate arrangements under section 7106(b)(3) of the Statute.

In view of our conclusion, we do not address the Agency's additional arguments.

2. Proposal 3, Encl. 2, sect. 1(d)

The Agency did not specifically address this section of the proposal in its statement of position. However, in its allegation of nonnegotiability, the Agency simply states that "[t]o the extent that the employee's consent does not authorize release to appropriate management and CEAP officials of all counseling and rehabilitation records related to illegal use of drugs in accordance with DFWP requirements," the proposed language conflicts with the Agency's DFWP and Executive Order 12564, and directly interferes with management's rights to discipline and to determine its internal security practices. Petition for Review, Attachment 2 at 2 (emphasis in original). The Union claims that the proposed language does not preclude the release of any counseling and rehabilitation records to appropriate CEAP and management officials, including the security officer.

Initially, we find that the Union's statement of intent regarding the proposed language is not inconsistent with the plain wording. Thus, although the proposed language does not include the word "all," we find that there is nothing in either the proposal itself or the Union's explanation that would prevent the release of all counseling and rehabilitation documents to the appropriate management and CEAP officials. Given this interpretation of section 1(d) of Proposal 3, we find no merit to the Agency's objections. Accordingly, and as the section does not otherwise appear to be inconsistent with any law, rule, or regulation, we conclude that section 1(d) of Proposal 3 is negotiable.

IV. Proposal 4

The Union proposes to substitute underscored language in OPNAVINST 5355, Encl. 3, sect. D.1(f) and App. A(1):

Encl. 3, sect. D.1(f): Approximately one hour prior to the scheduled collection, the supervisor will privately inform the employee with the exact time and location of the test. In the event the collection site is distant from the work site, appropriate adjustments (generally no more than 60 minutes) will be made to the notification time so long as the advance notice is as brief a time as possible.

Encl. 3, App. A(1): Approximately one hour prior to the actual collection, or the minimum time necessary for the employee to travel to the collection site (generally no more than 60 minutes), inform the employee orally and privately that he or she has been identified through a random selection process for drug testing by urinalysis.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 4 directly interferes with its right to determine its internal security practices by providing employees advance notification of approximately 1 hour before being required to undergo a random drug test. According to the Agency, the proposal would restrict management's ability to conduct unannounced random drug tests of employees occupying sensitive test designated positions. In support of its argument, the Agency relies on American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439 (1990) (Member Talkin dissenting in part) (Sierra Army Depot I) (provisions requiring that employees be provided with 2 hours' advance notification of a drug test limited the agency's ability to conduct its random drug testing program and, therefore, directly interfered with management's right to determine its internal security practices). Although the Agency acknowledges that Proposal 4 requires that employees be given less advance notification than the provision at issue in Sierra Army Depot I, the Agency asserts that the effect of the proposal is the same and should be found nonnegotiable.

The Agency also contends that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency reasserts its argument that an employee is not adversely affected by being required to undergo a drug test and, therefore, that the proposal cannot be an arrangement. However, assuming that the Authority finds that employees are adversely affected by a drug test requirement, the Agency claims that Proposal 4 is not an arrangement because it is not tailored to benefit or compensate employees suffering adverse effects. Instead, the Agency asserts that the proposal would merely delay, rather than alleviate, the adverse effect of being required to take a drug test.

The Agency further argues that if the proposal is found to be an arrangement, it is not an appropriate arrangement because it excessively interferes with the exercise of a management right. In this regard, the Agency argues that the claimed benefits to employees do not outweigh the negative effect of the proposal on management's rights. Specifically, the Agency maintains that employees who are designated as subject to random testing currently are notified well in advance of such designation and there is no reason why those employees could not engage in the activities suggested by the Union in the period of time already provided by the Agency's regulation. In addition, the Agency states that some of the activities could be accomplished after the drug test without any adverse consequences. The Agency also notes that its regulation provides for additional time of no more than 60 minutes for travel to the collection site, thus obviating any concerns the Union may have about travel time.

2. Union

The Union contends that Proposal 4 is an appropriate arrangement for employees adversely affected by the exercise of a management right under section 7106(b)(3) of the Statute. For the reasons set forth in its discussion of Proposals 2 and 3, the Union disputes both the Agency's contention that only employees who test positive for illegal drugs are adversely affected by management's right to conduct a drug testing program and the Agency's reliance on Minerals Management Service in support of its argument. The Union claims that in Overseas Education Association, Inc. v. FLRA, 876 F.2d 960 (D.C. Cir. 1989), the court stated that section 7106(b)(3) of the Statute authorizes negotiations of appropriate arrangements for employees adversely affected by the exercise of any authority under 7106(a) of the Statute.

The Union further contends that Proposal 4 does not excessively interfere with the Agency's right to conduct its drug testing program. In this regard, the Union claims that the Agency has several means by which it can determine whether an employee has tampered with a sample during the time allotted to the employee prior to collection of the sample, such as visual inspections, temperature readings, and specific laboratory tests. In addition, the Union argues that the proposal would not cause a delay in testing. The Union notes that supervisors have approximately 2 hours' notice before employees are tested, which the Union claims is more than enough time to give employees 1 hour of notice. The Union asserts that Sierra Army Depot I is not applicable in this case because the union did not argue that the proposal was an appropriate arrangement and because the proposal concerned the immediate testing of employees in post-accident situations. According to the Union, Proposal 4 applies to random testing procedures, which suggests that there is no reason to believe that the tested employees have ingested illegal drugs.

However, the Union states that in Nuclear Regulatory Commission, the Authority found that a proposal involving short delays in reasonable suspicion testing was negotiable as an appropriate arrangement. The Union further notes that although employees are notified of a random drug test 30 days in advance, employees will benefit from the additional time proposed before the collection of the sample because employees do not consider "the reality of drug testing . . . until they are notified of the requirement to arrive at the collection site in [30] minutes." Response at 29. The Union contends that employees will use the additional time prior to collection to: schedule a drug test at a private collection facility; prepare lists of medications and recently ingested foods; and make arrangements to complete their work assignments.

B. Analysis and Conclusions

We find that Proposal 4 is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Moreover, the proposal does not constitute an appropriate arrangement under section 7106(b)(3).

Proposal 4 would provide employees approximately 1 hour's notice prior to a drug test. The proposal would thereby extend the notice period provided to employees under OPNAVINST 5355, consisting of 15-30 minutes. In 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, 857 (1991) (National Park Service), relying on our earlier decisions in National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, 41 FLRA 1158 (1991) (Department of the Interior) (Member Talkin dissenting) and Sierra Army Depot I, 37 FLRA at 1440-45, we held that proposals requiring that employees be given 2 hours' advance notice that they will be tested for illegal drug use directly interfered with an agency's right to determine its internal security practices by interfering with the agency's ability to conduct unannounced random drug tests of employees in sensitive positions. Although Proposal 4 requires that employees be given a shorter notice period prior to reporting to the collection site for a drug test, we find that the effect of the proposal on the exercise of management's right is the same as the proposals found nonnegotiable in National Park Service, Department of the Interior, and Sierra Army Depot I. Therefore, we conclude that the proposal directly interferes with the Agency's right to determine its internal security practices.

We further find that Proposal 4 is not a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. As we stated above, to determine whether a proposal constitutes an appropriate arrangement, we apply the framework established in KANG. In this regard, the Agency disputes the Union's contention that the proposal constitutes an arrangement for adversely affected employees. Even assuming that the proposal is an arrangement, we find that the proposal is not an appropriate arrangement because it would excessively interfere with the exercise of management's right to determine its internal security practices.

The Union has stated that the proposal would benefit employees by giving them sufficient time to do the following: prepare lists of foods or medicines recently ingested that may affect the drug test results; contact the Union with questions or concerns; and make arrangements related to work assignments. Although the employees may benefit from the extra time provided in the proposal, we find that these benefits do not outweigh the burdens imposed on the Agency's right to determine its internal security practices. As part of those practices, we have found that an agency has the right to engage in random drug testing and to guard against any reduced effectiveness on the program that might result from the requirement of 2 hours' notice. See, for example, Department of the Interior, 41 FLRA at 1171. We find that the same concerns regarding the effectiveness of the Agency's drug testing program are present under Proposal 4, where approximately 1 hour of notice would be afforded to employees prior to a random drug test. Moreover, as the Agency has stated, employees who occupy sensitive positions are notified well in advance of such designation. There is no reason why those employees could not attend to the tasks listed by the Union in the time already provided by the Agency in its regulations, or after the drug test has occurred, without any adverse consequences. In addition, employees are already provided up to 30 minutes, by virtue of the Agency's regulation, in which to engage in the various activities.

We also find no merit to the Union's argument that Proposal 4 is similar to a proposal in Nuclear Regulatory Commission that allowed a short delay in reasonable suspicion testing. The proposal at issue in Nuclear Regulatory Commission merely permitted an employee to articulate a response to the agency's reasons for suspecting illegal drug use and was intended to allow employees to have quick personal or telephonic access to agency officials. Where those officials were not available within a reasonable period of time, the agency retained the discretion to conduct the test without hearing the employee's explanation. In contrast, Proposal 4, as acknowledged by the Union, would allow employees to conduct a range of activities in the extra time provided. In our view, the proposal would prolong the time allowed for an employee to report for a drug test and unduly restrict management's ability to conduct a random drug testing program. Consequently, we conclude that Proposal 4 does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.(3)

V. Proposal 6 (4)

The Union proposes to add the underscored language to OPNAVINST 5355, Encl. 4, sect. D:

Any person involved in the chain of custody (CSC, analysts, etc.) may be subject to drug testing. Any person who fails will be removed from the chain of custody.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 6 would apply to any individual who would have control over a specimen, regardless of whether the individual was a bargaining unit member or a non-bargaining unit employee. The Agency assumes that if an individual tests positive for illegal drug use, the proposal would not preclude the individual from handling the specimens of non-bargaining unit employees. However, the Agency claims that any individual who failed any type of drug test would have to be removed from handling the specimens of bargaining unit employees. As so interpreted, the Agency claims that Proposal 6 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. In addition, the Agency contends that the proposal is inconsistent with the requirements of section 5(c) of Executive Order 12564, which prohibits the Agency from allowing an employee found to use illegal drugs from remaining on duty in a sensitive position until the employee has successfully completed a rehabilitation program or the Agency has determined that other specified conditions have been met that would permit the employee to remain on duty. The Agency maintains that the proposal is more comprehensive than the requirements of the Executive Order in that it would apply to persons not encompassed within section 5(c) and because it would require the permanent removal of those employees who are covered.

The Agency also claims that the proposal is nonnegotiable because it would regulate the conditions of employment of employees in another bargaining unit. In this regard, the Agency states that the employees who will analyze the specimens of bargaining unit employees are represented by another labor organization. The Agency contends that the vitally affects test, as set forth in United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992), does not apply to proposals that attempt to regulate the conditions of employment in another bargaining unit.

Finally, the Agency asserts that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency states that the Union has not identified the adverse effect the proposal is intended to alleviate or how the proposal is tailored to redress those employees adversely affected by a management action as required by Minerals Management Service. However, if the Authority finds that the proposal is intended as an arrangement, the Agency contends that it is not appropriate because it excessively interferes with the right to assign work. The Agency asserts that the proposal would place an absolute restriction on its ability to assign work involving the chain of custody to individuals who have tested positive for illegal drugs. Citing West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008 (1990), the Agency asserts that the Authority previously has determined that proposals that permit no exceptions to management's right to assign work do not constitute appropriate arrangements.

2. Union

The Union contends that the proposal makes drug testing of employees in the chain of custody discretionary. The Union explains that the proposal is designed to provide greater protection for bargaining unit employees by ensuring that the goals of the DFWP will extend to individuals who have control over the specimens of bargaining unit employees. The Union states that employees of the Navy Drug Screening Laboratory (NDSL) are already subject to drug testing because they are Federal employees and because they occupy testing designated positions (TDPs) under Agency regulations. In addition, the Union explains that contractor personnel who are involved in the drug collection process are covered by the Drug Free Workplace Act of 1988 (DFWA), which requires contractors to develop procedures to eliminate the effects of drugs in the workplace. In addition, the Union argues that the Department of Defense has placed stringent requirements on contractors.

The Union asserts that the proposal does not conflict with the Executive Order. The Union explains that the decision to test employees, with the exception of NDSL employees, is discretionary on the part of the Agency. The Union states that if the Agency elects to test certain individuals, the Executive Order would require the removal of an employee with a verified positive test result from a sensitive position. The Union notes, however, that the proposal is silent on the decision to allow an individual who tests positive to return to a sensitive position and that such decision would be at management's discretion. The Union further states that the removal of an individual in the chain of custody who tests positive for illegal drugs is intended to be temporary until the individual's "possible drug problem has been cleared up" or the individual is returned under the conditions prescribed by section 5(c) of the Executive Order. Id. at 34.

Additionally, the Union argues that the "vitally affects" test would not bar the negotiability of Proposal 6. Id. at 35. According to the Union, a matter involving the employer's relationship with a third party may be subject to mandatory bargaining if such matters vitally affect the terms and conditions of employment of bargaining unit employees. The Union contends that if an individual in the chain of custody is found to be an illegal drug user and is allowed to continue handling the specimens of bargaining unit employees, those bargaining unit employees are vitally affected because of the increased possibility of errors in analyzing those specimens.

Finally, the Union contends that Proposal 6 is an appropriate arrangement under section 7106(b)(3) of the Statute because the benefits afforded to the employees outweigh the burden on management's rights. The Union claims that any infringement on the Agency's right to assign work is a matter "covered by" the Agency's own regulations and contracts. Id. at 34. the Union explains that the collection contract provides that the contractor's employees are expected to remain drug free and that NDSL employees are precluded from performing in sensitive duties if they are found to use illegal drugs.

B. Analysis and Conclusions

The first sentence of Proposal 6, which is not in dispute, allows the Agency to subject any person involved in the chain of custody to a drug test. The disputed sentence of the proposal requires the Agency to remove from the chain of custody any person who fails such a drug test. Other than the requirement contained in Executive Order 12564 to remove from sensitive positions employees who use illegal drugs, we are unaware of any authority, and the parties have not cited to any, that requires the removal of any person using illegal drugs from the chain of custody, whether on a permanent or temporary basis. However, as the proposal would prevent the Agency from assigning to certain individuals the task of handling the specimens of bargaining unit employees, during the time such individuals have been removed from the chain of custody, we find that the proposal directly interferes with the right to assign work.

It is well established that management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties that will be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. American Federation of Government Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 42 FLRA 542, 561 (1991) (Sierra Army Depot II). Despite the Union's claims that the removal from the chain of custody of an individual who tests positive for illegal drugs is intended to be temporary and that the Agency retains the discretion to return such an individual to a sensitive position, the effect of Proposal 6 is to prevent the Agency from assigning to such an individual the duties related to the handling of bargaining unit employee specimens. Moreover, the proposal would prevent the Agency from assigning those duties for some period of time. As so interpreted, we find that Proposal 6 directly interferes with the right to assign work.

The Union contends that Proposal 6 is an appropriate arrangement under section 7106(b)(3) of the Statute. However, even assuming that the proposal is an arrangement for adversely affected employees, we find, after balancing the competing interests of the Agency and the employees, that the proposal excessively interferes with the exercise of management's right to assign work. In terms of its benefits, the proposal would provide greater protection for bargaining unit employees by ensuring that the individuals who have control over their specimens are not impaired by the use of illegal drugs. We view this benefit as significant. At the same time, however, the proposal would effectively prevent the Agency from assigning any duties involving control over the specimens of bargaining unit employees to certain individuals. While the Union explains that the removal of an individual who tests positive from the chain of custody is intended to be temporary, that period is of unknown duration. Thus, no duties relating to bargaining unit specimens could be assigned to various individuals for some period of time. Because the restriction on the Agency's ability to assign particular duties is absolute, we find that the Agency's right to assign work would be substantially impaired. Accordingly, we conclude that Proposal 6 is not negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

In light of our conclusion, we do not address the Agency's additional contentions.

VI. Proposal 7

The Union proposes to insert the following as a new enclosure to OPNAVINST 5355:

Lab/Test Procedures

1. To reduce the chances of cross contamination of samples:

a. If cuvettes are utilized by the drug screening laboratory, either disposable cuvettes will be used or cuvettes will be thoroughly cleaned prior to reuse.

b. If pipettes, volumetric glassware, etc., are utilized by the drug screening lab, they must be thoroughly cleaned prior to reuse or disposable pipet tips utilized.

2. Drug testing laboratories shall be secure at all times. They shall have in place sufficient security measures to control access to the premises and to ensure that no unauthorized personnel handle specimens or gain access to the laboratory areas where records are stored. Access to these secured areas shall be limited to specifically authorized individuals whose authorization is documented. With the exception of personnel authorized to conduct inspections on behalf of Federal agencies for which the laboratory is engaged in urine testing or on behalf of the Secretary of Health and Human Services [sic]. All authorized visitors and maintenance and service personnel shall be escorted at all times. Documentation of individuals accessing these areas, dates and time of entry and purpose of entry must be maintained.

3. During the Accreditation Period, each analyst shall be required to analyze and interpret data and spectra (for GC/MS operators) from the samples received on his/her shift (including the blind test specimens and QC samples).

4. The Shipyard or Agency (if the shipyard is no longer required by the written direction of higher DON or Executive authorities), will submit blind samples and will require certification sheets for each blind sample submitted to the Drug Testing Laboratory in accordance with HHS Guidelines. These samples will be identified and the Union will be provided with a copy of both the certification sheets and the Drug Testing Laboratory's analysis. The samples will be labelled and submitted in the same manner as the Shipyard or Agency samples and will contain a unique individual specimen number.

5. Approximately 80% of the blind test samples shall be blank. Approximately 5% will not contain drug or drug metabolite but will contain known interferences of the screening and Confirmatory tests. The remaining 15% will contain drugs or drug metabolites at levels defined by HHS.

6. The Union will be allowed to submit blind samples to the laboratory through the Shipyard or Agency. The samples will be identical in appearance and documentation to the samples submitted by the Shipyard or Agency. Under no circumstances shall the Drug Screening Laboratory be notified that these are blind samples. Additionally, the Shipyard or Agency will immediately forward to the Union the results of the analysis. The actions required by the HHS [G]uidelines should the lab fail to correctly identify a negative sample, etc. shall be adhered to, should the laboratory fail to correctly identify a negative sample submitted by the Union.

7. Laboratory standards shall be prepared with pure drug standards which are properly labelled as to content and concentration. The standards shall be labelled with the following dates: when received; when prepared or opened; when placed in service; and expiration date.

8. Each batch of samples will include a mimimum [sic] of 10% quality control specimens. These QC specimens should include a negative control containing no analyte, a control containing analyte at the threshold limit, and a positive control containing analyte above the threshold concentration. To check for possible carry over, the blank control specimen shall be analyzed immediately following a positive control specimen. Control specimens for quantitative confirmation techniques should consist of a reagent blank and the upper and lower limits of the linearity of the method. If the QC Sample result is not within 2 standard deviations of the mean, the remedial actions defined in the HHS Guidelines will be followed.

9. The specimen shall be stored in a locked, secure facility, at temperatures that are no higher than -20 C.

10. The Union will receive a copy of all laboratory inspection reports. The documentation received will include any discrepancy cited and the laboratories response to the discrepancy.

11. Documentation of all aspects of the testing process must be made available to the union upon request. This documentation will be maintained for at least 2 years and will include but not be limited to: chain of custody documents; quality assurance and quality control records; procedure manuals; all test data; reports; performance records of proficiency testing; performance on accrediation [sic] inspections; and hard copies of computer generated data. [The first sentence is not in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that the proposal directly interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute insofar as sections of the proposal would require the Agency to comply with the HHS Guidelines or would impose requirements beyond those of the HHS Guidelines. In this regard, the Agency argues that if the sections of Proposal 7 that require it to adhere to the HHS Guidelines are included in the parties' collective bargaining agreement, the Agency could be required to follow the provisions of the proposal, even if the Guidelines were amended at a later date, until the parties negotiate a new agreement. As to the sections of Proposal 7 that exceed the requirements of the HHS Guidelines or conflict with the Guidelines, the Agency argues that those sections would impose additional limitations on the Agency's rights, which the Agency is not obligated to follow.

The Agency also argues that adding to or modifying the Guidelines "would be tantamount to saying that the Guidelines do not provide the exclusive scientific and technical procedures for conducting drug testing of Federal employees." Statement of Position at 51. According to the Agency, section 1.1(f) of the Guidelines precludes Federal agencies from deviating from the Guidelines without written approval from the Secretary of Health and Human Services. Therefore, the Agency asserts that it cannot negotiate a set of supplemental procedures such as those contained in Proposal 7. In support of its contention, the Agency notes that in U.S. Department of the Army, Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (1989) (Aberdeen Proving Ground), the court found that a proposal establishing additional qualifications for laboratory personnel that exceeded the requirements of the Guidelines was nonnegotiable because it "was inconsistent with the spirit, if not the letter, of the Guidelines . . . ." Statement of Position at 51.

The Agency makes the following additional arguments with respect to various sections of Proposal 7. First, the Agency contends that section 7.3 requires that certain types of work be assigned to each analyst in the drug testing laboratory during the "Accreditation Period." Id. at 53. The Agency states that the Union has not explained what it means by accreditation period and that the term is not used in the HHS Guidelines. Accordingly, the Agency requests that the Authority either dismiss this portion of the Union's petition for review or provide the Agency with an opportunity to respond further, if the Union clarifies the proposal. However, if the Authority considers section 7.3 without further clarification, the Agency claims that it interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that the proposal would require that all specimens received on a given shift be divided equally among the analysts working on that shift and that the analysis be completed on that shift. The Agency claims that such a requirement interferes with the Agency's ability to make work assignments and determine when the work will be performed. The Agency further claims that section 7.3 cannot constitute an appropriate arrangement under section 7106(b)(3) of the Statute based on the Union's statement that the proposal would not apply to the laboratory that will be performing the analysis of samples collected from bargaining unit employees.

The Agency states that section 7.4 requires, among other things, that blind samples be submitted to the drug testing laboratory, that "certification sheets" be submitted with each blind sample, and that the Union be given copies of both the certification sheets and the results of the blind sample analyses. Id. at 54-55. The Agency argues that the Union has not explained what it means by the term certification sheets, who would prepare them, or what information they must contain. Accordingly, the Agency requests that the Authority dismiss the Union's petition for review as to this portion of the proposal or provide the Agency with an opportunity to respond further, if the Union clarifies the proposal.

The Agency contends that section 7.5, which would prescribe the composition of the required blind test samples, is inconsistent with the requirements of section 2.5(d)(3) of the HHS Guidelines. Specifically, the Agency claims that the Guidelines do not allow for 5 percent of the samples to contain known interferences as proposed by the Union, instead of drugs or drug metabolites. Because section 7.5 conflicts with a specific requirement of the HHS Guidelines, the Agency further argues that it cannot constitute an appropriate arrangement under section 7106(b)(3) and is nonnegotiable.

The Agency claims that section 7.6 is an attempt to establish an additional system for blind sample testing that is contrary to the intent of the HHS Guidelines. According to the Agency, section 7.6 sets no limit on the number or frequency of blind samples that the Union could submit to the drug screening laboratory and, as a result, the Union "could overwhelm" the laboratory with its blind samples, thereby interfering with the Agency's ability to test employee specimens. Id. at 57. In addition, section 7.6 provides that if the laboratory fails to correctly identify a negative sample, the Agency must adhere to the actions required by the HHS Guidelines. The Agency explains that section 2.6(d)(4) of the HHS Guidelines requires the Secretary of Health and Human Services to investigate any unsatisfactory performance testing result stemming from the testing of blind samples by the Agency. According to the Agency, the proposal would require the Agency to agree that the Secretary would conduct the same type of investigation when samples are submitted by the Union. The Agency maintains that it cannot commit another Federal agency to take actions that are not required by any applicable law or regulation.

The Agency contends that section 7.8 is inconsistent with section 2.5 of the HHS Guidelines. Specifically, the Agency claims that section 2.5(b) of the Guidelines requires that a minimum of 10 percent of all test samples shall be quality control samples. In contrast, the first sentence of the proposal would require that a minimum of 10 percent of each batch would be used as quality control samples. The Agency also claims that the second sentence of section 7.8 is inconsistent with sections 2.5(b) and (c) of the Guidelines because the proposal would require "controls" whereas the Guidelines require "urine specimens . . . ." Id. at 60. In addition, the Agency notes that the proposal would require that the controls be at and above the threshold level whereas the Guidelines require that the controls be at or near the threshold. The Agency states that the final sentence of section 7.8 would provide that if the sample result is not within two standard deviations of the mean, the remedial actions defined in the HHS Guidelines must be followed. The Agency argues that because the proposal does not specify what remedial actions contained in the Guidelines must be followed, it cannot adequately respond to the proposal. Finally, in addition to the inconsistencies with the Guidelines, the Agency contends that the proposal interferes with its right to determine its internal security practices by interfering with the right to establish and administer a drug testing program. The Agency also maintains that the proposal is not an appropriate arrangement because it is not clear how the proposal will increase the accuracy of test results and the Union has not explained how the quality control requirements of the Guidelines are inadequate.

The Agency asserts that the Union's statement that section 7.9 refers only to long term storage of positive samples is inconsistent with the wording of the proposal. The Agency argues that the plain wording of section 7.9 would apply to the storage of any specimen and, consequently, that it conflicts with the HHS Guidelines. The Agency relies on International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500 (1991), in which the Authority found that a proposal providing that all specimens not tested on the day they are collected would be frozen was nonnegotiable because it was inconsistent with the HHS Guidelines.

Insofar as the Union has agreed to allow the Agency to sanitize the information required to be provided to the Union in section 7.10 and the first sentence of section 7.11 of the proposal, the Agency withdraws its allegation of nonnegotiability as to these matters. However, the Agency claims that the remainder of section 7.11, which specifies the documentation relating to the testing process that the Agency must maintain, is nonnegotiable because it restates the requirement of the HHS Guidelines. The Agency maintains that proposals that restate the provisions of the HHS Guidelines are nonnegotiable for the reasons set forth in its general discussion of Proposal 7.

Finally, in addition to the arguments raised as to the various sections of Proposal 7, the Agency maintains that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency claims that the proposal is not tailored to redress those employees who are adversely affected by a management right, as required by Minerals Management Service. Rather, the Agency argues that the proposal applies to the drug testing procedures applicable to all employees, not simply those employees facing unwarranted disciplinary action based on erroneous drug test results. In addition, the Agency argues that the Union has not explained how Proposal 7 would alleviate any adverse effect an employee might suffer from being tested for illegal drug use. The Agency asserts that even if the Authority finds that the proposal restates the requirements of the HHS Guidelines, the Union has not explained how its proposal will produce more reliable results than merely following the Guidelines and has not identified any problems with the accuracy of test results where the HHS Guidelines were followed. The Agency explains that all specimens collected from its civilian employees are analyzed by the NDSL and that the employees whose specimens are tested are represented by several unions. If each of those unions could negotiate supplemental testing procedures, such as those contained in Proposal 7, the Agency maintains that it would create enormous administrative difficulties for the laboratory and increase the likelihood of erroneous tests results. For these reasons, the Agency argues that Proposal 7 does not constitute an appropriate arrangement.

2. Union

The Union contends, as a general matter, that proposals regarding the HHS Guidelines are negotiable. For example, the Union cites Sierra Army Depot II (proposal provided that the authorized collection agent would collect all drug testing specimens); National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106 (1991) petition for review dismissed, 953 F.2d 687 (D.C. Cir. 1992) (proposal permitted union representative to attend testing if the testing facility allowed attendance); and American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 42 FLRA 567 (1991), rev'd, No. 91-1583 (D.C. Cir. Mar. 4, 1993) (Southern Administrative Service Center) (proposal provided that all drug testing would be in accordance with the HHS scientific and technical guidelines). The Union also states that Proposal 7 does not contain supplemental technical requirements, as claimed by the Agency. Rather, the Union argues that Proposal 7 contains requirements that the laboratory already follows. In response to the Agency's contention that the proposal would contractually bind the parties regardless of changes in the Guidelines, the Union notes that the parties' agreement already provides for the "precedence of future [G]overnment[-]wide regulations." Response at 38. The Union adds that if the Guidelines are changed, negotiations would commence when the proposed changes are presented in the Federal Register and would be completed when the revised Guidelines are implemented.

The Union asserts that Proposal 7 is necessary because "the mere existence of the [HHS] Guidelines and the directives by the Executive Order and FPM to follow the Guidelines, do not ensure that the Guidelines will be followed." Response at 39. The Union states that a number of studies and reports indicate that deviations from the Guidelines have occurred. Consequently, the Union argues "that [u]nions need to be intrinsically involved in the Drug Testing Program[]" to ensure that agencies adhere to the Guidelines and that bargaining unit members receive procedural due process. Id. at 42.

The Union notes that the Agency failed to assert in its statement of position, as it had in its allegation of nonnegotiability, that Proposal 7 is negotiable only at the election of the Agency under section 7106(b)(1) of the Statute. The Union argues that the Agency has elected to bargain over the proposal because it offered a counterproposal during negotiations that was never withdrawn. In any event, the Union contends that the Agency is required to bargain over negotiable procedures and arrangements under section 7106(b)(2) and (b)(3) of the Statute.

More particularly with respect to section 7106(b)(3) of the Statute, the Union argues, as it has previously, that the court in Minerals Management Service did not indicate that an arrangement for employees adversely affected by an agency's decision to implement a drug testing program had to be limited to employees who test positive for illegal drugs. The Union also cites the Authority's decision in Southern Administrative Service Center, which it claims is more relevant to Proposal 7 than the proposal found nonnegotiable by the court in Minerals Management Service.

Regarding the specific sections of Proposal 7, the Union contends that section 7.1 is intended to ensure that matter from one specimen does not contaminate the testing of another specimen. In this regard, the Union asserts that the possibility of residue from previous samples left in the glassware could increase the possibility of false positive test results and that the HHS Guidelines recognize "the damaging consequences of carryover" in sections 2.5(b)(3) and (c)(3). The Union claims that in International Association of Machinists and Aerospace Workers, Local Lodge 2424 and U.S. Department of the Army, Aberdeen Proving Ground, Maryland, 31 FLRA 205, 216 (1988), remanded without opinion, No. 88-1311 (D.C. Cir. July, 18, 1988), decision on remand, 33 FLRA 512 (1988), the Authority found that a proposal requiring "pipet" tips to be flushed or changed in order to avoid cross contamination was a negotiable procedure. Similarly, the Union argues that section 7.1 is a negotiable procedure because it would not require that any particular equipment be used in the testing and would not alter the methods of operation chosen by the Agency. The Union also asserts that the NDSL already adheres to the requirements of section 7.1 and, therefore, section 7.1 would not excessively interfere with management's right to determine the method and means of performing work or with its right to conduct a drug testing program.

The Union contends that section 7.2 is also a negotiable procedure or an appropriate arrangement. The Union claims that the courts have determined that drug testing constitutes a search under the Fourth Amendment to the U.S. Constitution and that random testing may increase employee anxiety and invade expectations of privacy. In addition, the Union claims that employees may suffer consequences from false positive or false negative test results and loss of confidentiality of test results. The Union asserts that section 7.2 will decrease employee anxiety by ensuring a secure drug testing facility, thereby decreasing the possibility of false positive and false negative test results. The Union further notes that section 2.4(a)(1) and prefatory comment 26 of the Guidelines emphasize the need for a secure facility because of the potential for tampering with specimens or test results.

The Union states that the term "Accreditation Period," as it is used in section 7.3, refers to "the period prior to a lab being certified when it seeks certification, while it is undergoing inspection, performance testing and evaluated under each of the criteria covered in [s]ection 3.12(b) of the Guidelines." Response at 50. The Union claims that it has fully explained the proposal and opposes the Agency's request to file a supplemental statement of position on this proposal. The Union concedes that section 7.3 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute but claims that section 7.3 is an appropriate arrangement under section 7106(b)(3) because it would not excessively interfere with the management right. The Union argues that section 7.3 benefits employees by ensuring the accuracy of the drug testing process. In contrast, the Union claims that the burden on the exercise of management's right to assign work is minimal because the proposal does not restrict or specify the number or type of samples that need to be analyzed or what actions will be taken if the results are erroneous.

The Union also contends that section 7.3 is not inconsistent with the HHS Guidelines. The Union states that the Guidelines preclude negotiating over the qualifications of laboratory personnel once the laboratory has been certified. However, the Union claims that the proposal would apply only to laboratories that have not yet been certified under the Guidelines and that it does not establish qualifications for laboratory personnel. The Union asserts that section 7.3 is necessary, even though the NDSL is currently certified under the HHS Guidelines, because the Agency could decide at a later date to contract out the laboratory services to a laboratory that is not certified under HHS Guidelines, which would trigger the application of section 7.3.

The Union states that section 7.4 involves the release of information regarding laboratory performance tests to the Union. In this regard, the Union explains that the term "certification sheets" refers to "the laboratory or group mean" as used in section 3.19 of the HHS Guidelines and by the Armed Forces Institute of Pathology (AFIP). Response at 54. According to the Union, the AFIP would prepare certification sheets containing certain information, such as the drug or drug metabolites tested, the NDSL's analysis, and the group mean of all the laboratories participating in the study. The Union contends that the Authority has found similar proposals negotiable, in part, because the HHS Guidelines are silent on the subject and, therefore, the proposals are not inconsistent with the Guidelines. In this regard, the Union asserts that the Guidelines recognize the need for both quality control samples and blind proficiency test samples in section 2.5(d), requiring that agencies submit blind samples, and in section 3.19, containing requirements concerning accuracy. In addition, the Union claims that section 2.9 of the Guidelines restates the requirement of Executive Order 12564 that any employee who is subject to a drug test may have access to any records relating to that drug test and records relating to the results of any relevant certification, review or revocation of certification. The Union contends that section 7.4 is an extension of an employee's rights under the Executive Order.

The Union further contends that section 7.4 does not interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) or the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. However, if the Authority finds such interference, the Union claims that section 7.4 is a negotiable appropriate arrangement under section 7106(b)(3). The Union argues that because blind performance tests uncover errors in the technology, methodology, and technique of drug testing, "there also needs to be a mechanism . . . in addition to the Agency to ensure that [blind samples] are being submitted and analyzed." Response at 56. The Union notes that other Federal agencies have encountered errors and that the possibility of false positive tests and false negative tests is diminished by including blind samples.

The Union contends that section 7.5 is consistent with section 2.5(d)(3) of the HHS Guidelines, which provides that approximately 80 percent of the blind samples shall be certified to contain no drug and the remaining samples shall be positive for one or more drug. The Union states that it intended that approximately 5 percent of the blind samples referenced in the proposal that contain interferences would be included in the approximately 80 percent of blank samples provided for in the Guidelines.(5) The Union further claims that the Guidelines do not preclude the addition of some "interfering substances in the [blind samples]." Response at 57. In this regard, the Union states that in National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA 174 (1991) (Forest Service Council), the Authority determined that the silence of the Guidelines is not a ground for finding that a proposal is inconsistent with the final Guidelines.

The Union also contends that section 7.5 is an appropriate arrangement under section 7106(b)(3) of the Statute because it would not excessively interfere with the Agency's rights to determine its internal security practices under section 7106(a)(1) of the Statute or the methods and means of performing work under section 7106(b)(1) of the Statute. The Union asserts that the use of interferences in the blind samples is an effective means to detect and correct errors in the drug testing procedure and that the burden of adjusting a "handful" of blind samples is outweighed by the added protection to employees of documenting which substances interfere with the analysis of the screening or confirmatory tests. Response at 58. The Union states that it is not requesting information on which substances interfere with the tests but, rather, is requesting that some of these substances be included in a few of the samples.

With regard to section 7.6, and in response to the Agency's concern that the Union will overwhelm the drug testing laboratory with its blind samples, the Union states that it will purchase samples from a source acceptable to the Agency and will consult with the Agency on the number of blind samples it will send. The Union also states that its involvement in the process will be limited to paying for the blind samples and receiving a copy of the test results. The Union also contends that section 7.6 is consistent with the HHS Guidelines, noting particularly section 2.4(d), which provides that test samples appear as ordinary samples to the laboratory analysts. The Union claims that the Authority's decision in National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 41 FLRA 1241 (1991) (Department of Energy), petition for review filed, No. 91-1514 (D.C. Cir. Oct. 21, 1991), is relevant to the proposition that matters not specifically contained in the Guidelines, which provide protections for employees, are negotiable.

The Union claims that section 7.6 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute because it would not excessively interfere with the Agency's right to determine its internal security practices. While conceding that section 7.6 would require a minimal amount of additional work for the Agency, the Union claims that the Authority has found that proposals that involve some additional work for an agency are negotiable. In support, the Union cites Department of Energy. The Union asserts that employees would benefit from section 7.6 because it would measure the effectiveness of the chain of custody procedures and ensure adherence to the HHS Guidelines.

The Union contends that section 7.7 is also an appropriate arrangement because it would not excessively interfere with the Agency's right to determine its internal security practices. The Union notes the Agency's concession that this section is a quotation from section 2.4(n)(2) of the HHS Guidelines and that the Agency is otherwise required to adhere to the provisions of the section. The Union describes the benefits to the employees of section 7.7 as providing added assurance of accurate results because known standards are used for a "calibration curve." Response at 62. The Union claims that section 7.7 is routine laboratory practice and that the possibility of problems at the laboratory are magnified if such practices are not followed.

The Union claims, contrary to the Agency's contention, that the language of section 7.8 is covered in section 2.4(d) of the HHS Guidelines and that there is no distinction between the proposal and the Guidelines. The Union contends that the controls required by the proposal and the Guidelines would be utilized by laboratory personnel to detect problems with the testing of specimens. In addition, the Union maintains that it is not proposing that the laboratories take particular remedial action. Rather, the Union notes that section 2.4(n) of the Guidelines provides for standard procedures for the laboratories to follow. The Union claims that it is concerned with what it asserts is a trend to cut the costs involved in drug testing programs. The Union argues that the inclusion of quality control samples in drug testing procedures is necessary to detect and correct errors in the program and cannot be eliminated as a cost-saving measure.

The Union claims that any interference with management's rights would be minimal because the Agency is already required to comply with the Guidelines. In addition, the Union states that the NDSL complies with or exceeds the requirements of the proposal. Finally, the Union argues that the negative impact on the employees if section 7.8 is not followed is "overwhelming." Id. at 66. The Union asserts that the employees would be subject to disciplinary action based on false positive test results before the Agency could identify erroneous test results. The Union maintains that the use of quality control samples would immediately identify false positive test results.

The Union contends that section 7.9 would not apply to the storage of any specimen, as the Agency argues. Rather, section 7.9 is intended to apply when specimens are required to be stored and requires that they will be stored in a secure facility at temperatures no higher than -20 degrees centigrade. The Union also claims that section 7.9 is consistent with section 2.4(a) and (h) of the HHS Guidelines and with OPNAVINST 5344 Encl. 3, App. B(1). Consequently, the Union contends that section 7.9 is a negotiable procedure or an appropriate arrangement under sections 7106(b)(2) or (b)(3) of the Statute. In this regard, the Union argues that freezing the samples would ensure the integrity of the samples for future analysis. The Union claims that the courts have held that procedural due process is violated if a sample is not available for retest. The Union states that in Banks v. Federal Aviation Administration, 687 F.2d 92 (5th Cir. 1982), the court reversed an MSPB decision that had sustained the discharge of two air traffic controllers. The court found that because the controllers' samples had not been retained and, therefore, the samples could not be independently evaluated, there was insufficient evidence to support the discharges.

With respect to section 7.11, the Union asserts that the Guidelines contemplate the release of documentation relating to all aspects of drug testing procedures. The Union contends that section 7.11 is necessary because the Department of the Interior Inspector General's report found that there was a lack of documentation in the DFWP. The Union states that the report determined that 21 months of various types of information relating to the agency's drug testing program had been destroyed and that the documents that were available were of questionable validity. As a result, the Union explains that the report concluded that the agency had no assurances that its employees were drug free. The Union claims that having access to the documentation listed in the proposal would ensure that the Agency is complying with the HHS Guidelines. The Union further claims that the Guidelines contemplate that the documents will be released because agencies are required to have all aspects of the drug testing procedure documented for possible legal challenges.

The Union argues that section 7.11 is distinguishable from a proposal found nonnegotiable in National Park Service. The Union states that the information that the Agency is required to release under section 7.11 would not identify particular employees because the Union has agreed to receive sanitized information. The Union also argues that in Forest Service Council, the Authority determined that nothing in the Guidelines precludes agencies from providing information they receive concerning laboratory performance to unions representing employees of those agencies. Therefore, the Union contends that section 7.11 is an appropriate arrangement under section 7106(b)(3) of the Statute because it does not interfere with the Agency's rights. The Union claims that the Agency is required to adhere to the HHS Guidelines and that despite this requirement, other agencies have failed to maintain the appropriate documents.

B. Analysis and Conclusions

1. Section 7.1

We find that the Agency has not established that section 7.1 is inconsistent with the HHS Guidelines. We further find that section 7.1 does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1). Rather, the section constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

First, we reject the Agency's contention that section 7.1 conflicts with section 1.1(f) of the HHS Guidelines by adding a technical requirement that is not contained in the Guidelines. Section 1.1(f) of the Guidelines provides, in relevant part, that "[a]gencies may not deviate from the provisions of these Guidelines without the written approval of the Secretary." 53 Fed. Reg. 11979. However, there is nothing in section 7.1 that requires the use of any particular equipment in conducting drug tests such that it would be in conflict with a provision of the Guidelines. Instead, the section merely provides for a course of conduct in the event that apparatus such as cuvettes, pipettes, or volumetric glassware is used by the drug screening laboratory. In the absence of any specific requirement set forth in the Guidelines, we find that the use of disposable cuvette or pipette tips or thorough cleaning of certain apparatus prior to its reuse is not inconsistent with section 1.1(f) of the Guidelines.

We further find that section 7.1 does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. It is well established that management's determination of the methods and equipment it will use in drug testing is an exercise of its right to determine its internal security practices under section 7106(a)(1) of the Statute. See National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1059 (1988) (Rock Island I), remanded as to other matters, No. 88-1239 (D.C. Cir. May 25, 1988), decision on remand, 33 FLRA 436 (1988), rev'd in part and remanded as to other matters sub nom. Department of the Army, Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 936 (1990). The Authority has also held that limitations on the range of management's choices as to the methods and equipment used to conduct drug tests establish substantive criteria governing the exercise of management's right to determine its internal security practices. See Rock Island I, 30 FLRA at 1059.

Section 7.1 provides that, if the drug screening laboratory uses certain types of glassware or other apparatus, they must be disposable or thoroughly cleaned before reuse. In our view, section 7.1 does not interfere with section 7106(a)(1) of the Statute because it would not require the Agency to use any particular method or equipment in conducting drug tests. Section 7.1 preserves the Agency's discretion to use cuvettes, pipettes, volumetric glassware or similar apparatus. It is only when the Agency chooses to use such equipment as part of its drug testing methods that section 7.1 becomes operative. At that point, section 7.1 prescribes certain procedural steps that must be followed in order to reduce the possibility of cross-contamination of specimens. While it may be argued that the Agency's choice of methods is circumscribed once it has determined which apparatus to use in conducting its drug tests, we do not view such a result as implicating the Agency's right to determine its internal security practices. Thus, that management right is exercised once the Agency has decided to use cuvettes, pipettes, or other apparatus. The procedures that flow from that decision do not establish substantive criteria governing the exercise of management's right to determine its internal security practices. Accordingly, we conclude that section 7.1 is a negotiable procedure under section 7106(b)(2) of the Statute.

In reaching this result, we find that section 7.1 is distinguishable from the proposal in Department of the Interior, which required the Agency to use a disposable thermometer in measuring the temperature of specimens. We found that the proposal directly interfered with management's right to determine its internal security practices because it prescribed the particular equipment management would use in its drug testing program. In contrast, section 7.1 does not require the Agency to use particular equipment.

2. Section 7.2

Section 7.2 is essentially a restatement of section 2.4(a)(1) of the HHS Guidelines. The Agency objects to the section on the basis that it would bind the Agency to the requirements contained therein even if the HHS Guidelines were subsequently changed. The Agency also states that section 7.2 would directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Union disputes the Agency's contentions. According to the Union, the parties' collective bargaining agreement provides that it is subject to future Government-wide regulations. Specifically, the Union points to Article 4, which states that "this [a]greement is subject to the precedence of . . . existing and future Federal laws, executive orders, and statutes and by [G]overnment-wide rules and regulations . . . ." Petition for Review, Attachment 4 at 4. The Agency does not contest the Union's assertion with respect to the meaning and application of Article 4.

In our view, the precedence of future Government-wide regulations negates the concern that the Agency would be bound to the requirements of the Guidelines regardless of changes to the Guidelines. Thus, if section 7.2 were included in the parties' agreement and the HHS Guidelines were later amended, the amended regulation would govern over the existing contract. The existence of Article 4 of the parties' agreement distinguishes the instant case from prior decisions involving proposals that attempted to incorporate the terms of a Government-wide regulation directly into the parties' agreement. See, for example, National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 474-75 (1990) (Proposal 6) remanded without decision, No. 91-1045 (D.C. Cir. July 23, 1991) decision on remand, 43 FLRA 47 (1991). In those cases, the proposals were found nonnegotiable because they would have imposed independent contractual requirements on the agencies' discretion to exercise their management rights under the Statute. Thus, the agencies would have been bound to the contractual provisions despite any subsequent changes to the applicable regulation. In contrast, the Agency here would not be required to adhere to section 7.2, if it no longer reflected the requirements of the Guidelines, because of the operation of Article 4.

We also find no merit to the Agency's argument that section 7.2 interferes with management's right to determine its internal security practices. In terms of such practices, section 7.2 would require the Agency to do nothing more than it is already required to do under the HHS Guidelines. Moreover, the Agency would be able to change its internal security practices to conform with changes to the Guidelines, as contemplated by Article 4. Consequently, we find that section 7.2 does not directly interfere with management's right to determine its internal security practices.

Based on the foregoing, we conclude that section 7.2 is negotiable. In view of this result, we need not address the Union's claim that section 7.2 constitutes an appropriate arrangement.

3. Section 7.3

Section 7.3 would require that during the "Accreditation Period" each analyst in the drug screening laboratory analyze and interpret data from the samples received on his or her shift. The Union explains that the term "Accreditation Period . . . refers to the period prior to a lab[oratory] being certified" under the criteria set forth in section 3.12(b) of the HHS Guidelines. Response at 50. As so interpreted, we find that this definition is consistent with the plain wording of the proposal and, therefore, we will adopt the Union's definition for purposes of our decision. In view of this result, we find it unnecessary to grant the Agency's request to file a supplemental pleading to address the meaning of the term "Accreditation Period."

We further find that section 7.3 is nonnegotiable. In this regard, the Union concedes that section 7.3, which requires analysts to perform certain duties, interferes with the right to assign work. In agreement, we find that the section directly interferes with the exercise of management's right to assign work under section 7106(a)(2)(B) of the Statute. For example, Fort Carson, 48 FLRA at 176-77 (proposal requiring assignment of specific duties to particular official found to directly interfere with right to assign work).

Next we address the Union's claim that section 7.3 is an appropriate arrangement under section 7106(b)(3) of the Statute. Even assuming, for purposes of our decision, that section 7.3 is an arrangement for adversely affected employees, we find that the section is nonnegotiable because it would excessively interfere with the exercise of management's right to assign work.

Under the HHS Guidelines, the laboratory manager is responsible for selecting and monitoring laboratory personnel and must rely on laboratory performance testing in assessing whether analysts are sufficiently qualified. According to the Union, section 7.3 would benefit employees by ensuring greater accuracy in the drug testing process by assisting the laboratory manager in determining whether analysts require additional training. Although this benefit is significant, we find that it is outweighed by the burden placed on the Agency's right to assign work. The Agency has stated, and the Union does not dispute, that the section would require that all specimens received on a given shift must be divided equally among the analysts who are working on that shift and must be analyzed during that shift. We find that such requirements would place a substantial burden on management's right to determine the individuals to whom work will be assigned and when the work will be performed. Accordingly, we conclude that section 7.3 is not negotiable as an appropriate arrangement because it would excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

In view of our conclusion, we do not address the Agency's other arguments.

4. Section 7.4

Section 7.4 would require the Agency to submit blind samples and certification sheets for each blind sample to the drug testing laboratory in accordance with the HHS Guidelines, to provide the Union with a copy of both the certification sheets for each blind sample and the laboratory's analysis, and label the blind samples in the same manner as the Agency's samples. The Agency contends that the term "certification sheets" is not defined in the HHS Guidelines and that the Union has not adequately explained the term to enable the Authority to make a negotiability determination with respect to this section of Proposal 7.

The Union states that section 7.4 involves information concerning laboratory performance tests and that the term "certification sheets" refers to "the laboratory or group mean" as used in section 3.19 of the Guidelines and by the Armed Forces Institute of Pathology. Response at 54. The Union further states that the certification sheets "would contain such information as the drug or drug metabolites tested for, . . . the NDSL's analysis and the group mean of all the lab[oratories] participating in the study." Id. Based on the Union's explanation, the "certification sheets" apparently would contain the results of the "performance tests," which laboratories are required to conduct in order to be certified to perform urine drug tests for Federal agencies under Subpart C of the HHS Guidelines. See 53 Fed. Reg. 11972.

Interpreted in this manner, we find that the portion of section 7.4 requiring the Agency to provide copies of the certification sheets to the Union is similar to a proposal found negotiable in Forest Service Council, 40 FLRA at 176-79. In that case, we found that section 2.5(d)(4) of the Guidelines requires that agencies be provided with the results of laboratory performance tests. We further found that nothing in the Guidelines or its prefatory comments indicated an intent to preclude agencies from providing that information to unions representing the employees of those agencies. In reaching our result, we also noted that Federal employees who are the subjects of drug tests are entitled, on written request, to any records relating to the results of any relevant certification, review, or revocation-of-certification proceedings, including those relating to the periodic review of laboratories. Therefore, we concluded that the proposal was not inconsistent with the HHS Guidelines.

For the reasons stated more fully in Forest Service Council, we conclude that the portion of section 7.4 requiring the Agency to provide information to the Union is negotiable. As to the other requirements of section 7.4, related to the identification and labelling of samples, no basis is either asserted or apparent for finding that such requirements are inconsistent with law, rule, or regulation. Consequently, we find those portions of section 7.4 to be negotiable as well.

5. Sections 7.5, 7.6, and 7.8

We find that sections 7.5, 7.6, and 7.8 are inconsistent with the HHS Guidelines and, therefore, are nonnegotiable under section 7117(a)(1) of the Statute.

The HHS Guidelines represent the exclusive standard for urinalysis testing. 53 Fed. Reg. 11978. Absent a waiver from the Secretary of Health and Human Services, agencies may not deviate from the established procedures. Id. As relevant to these sections of Proposal 7, Sections 2.4 and 2.5 of the HHS Guidelines provide specific procedures for laboratory analysis of specimens and for quality assurance and control. Specifically, Section 2.5(d)(3) of the Guidelines states that "[a]pproximately 80 percent of the blind performance test samples shall be blank (i.e., certified to contain no drug) and the remaining samples shall be positive for one or more drugs per sample . . . ." Id. at 11985. Thus, section 2.5(d)(3) states, in mandatory terms, that the blind performance test samples that are blank shall be certified to contain no drug. However, the Union's proposed section 7.5 would require that 5 percent of the blind performance samples contain known interferences in the screening and confirmatory tests. As a result, the section would alter the composition of the blind performance test samples and conflict with the requirements of section 2.5(d)(3) of the HHS Guidelines.

The Authority previously has found that the Guidelines constitute Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. National Federation of Federal Employees, Local 1384 and U.S. Department of the Air Force, 3245th Air Base Group, Hanscom Air Force Base, Massachusetts, 41 FLRA 195, 198 (1991). To the extent that section 7.5 would alter the composition of the blind performance samples, the proposal is inconsistent with the HHS Guidelines. Accordingly, we conclude that section 7.5 is nonnegotiable. As we have found that section 7.5 is inconsistent with the HHS Guidelines, we do not address the Agency's argument regarding management's rights.

We reach the same conclusion with respect to sections 7.6 and 7.8. Section 7.6 would permit the Union to submit blind samples to the drug testing laboratory through the Agency. The Agency claims, and the Union does not dispute, that the section would establish an additional system for blind sample testing. Indeed, the Union explains that it would purchase the additional samples, with the number of such samples to be determined after consulting with the Agency. As we found in connection with section 7.5, the HHS Guidelines provide specific procedures for laboratory analysis of specimens and for quality assurance and control. Among the procedures specified are those relating to blind performance tests. Specifically, section 2.5(d)(1) of the Guidelines provides that agencies shall purchase drug testing services from certified laboratories. In addition, section 2.5(d)(2) regulates the percentage of blind samples that agencies may submit to the laboratory and specifies the maximum number of such samples that may be submitted per quarter. Thus, the Guidelines contemplate that the Agency will provide and pay for whatever blind samples are used and specifically identifies the percentage and maximum number of blind samples that may be submitted. In our view, the Guidelines set forth the exclusive standards governing the provision, payment, and furnishing of blind samples. To the extent the Union's proposal would permit the Union to provide and pay for additional samples, whose number may exceed the limitations set forth in the Guidelines, the proposal is inconsistent with the Guidelines.

Section 7.8 would establish the content of laboratory quality control samples. The Union argues that there is no distinction between this section and the Guidelines, which the Agency is required to follow. However, section 2.5(b) and 2.5(c) of the Guidelines clearly provide for the content of the quality control samples for initial and confirmatory tests and do so in mandatory terms. The Union's proposed Section 7.8 would require deviations from those requirements. For example, section 7.8 mandates that certain control specimens contain analytes above the threshold concentration, while the Guidelines require that certain controls contain a drug or metabolite as or near the threshold level. Because section 7.8 would require the Agency to deviate from the exclusive procedures established in the HHS Guidelines, we conclude that the section is nonnegotiable.

In view of our conclusions, we do not address the Agency's argument regarding management's rights.

6. Sections 7.7 and 7.11

Sections 7.7 and 7.11 are restatements of all or part of sections 2.4(n)(2) and 2.4(m) of the HHS Guidelines. For the reasons more fully set forth in our discussion of section 7.2, we find that sections 7.7 and 7.11 are negotiable. In reaching this result, and noting the absence of any contention by the Agency otherwise, we reiterate that Article 4 of the parties' agreement subordinates the provisions of the agreement to future Government-wide regulations. Thus, if the Guidelines were amended at some future date, the subsequent amendments would take precedence over the agreement and the Agency would not be bound by contract provisions that conflict with the amended regulations. Under these circumstances, we find that sections 7.7 and 7.11 are not inconsistent with the Guidelines. We also find that these sections do not interfere with management's right to determine its internal security practices. The sections merely require the Agency to do what is already required under the Guidelines. Moreover, the Agency would be able to conform its internal security practices in accordance with Article 4. Consequently, we conclude that sections 7.7 and 7.11 are negotiable. In view of our conclusion, we do not address the Union's claim that sections 7.7 and 7.11 are appropriate arrangements.

7. Section 7.9

Section 7.9 would require the Agency to store urine specimens in a locked, secure facility at a temperature no higher than -20 degrees centigrade. The Agency states that the plain wording of the section would apply to the storage of any specimen, not simply positive samples that are required to be stored under the Guidelines. Consequently, the Agency argues that the proposal is inconsistent with the Guidelines. The Union states that section 7.9 is limited "to the long term storage of positive urine samples . . . ." Petition for Review at 22. We find that the Union's statement of intent is consistent with the plain wording of the proposal and we will apply the Union's explanation for purposes of our decision. As so interpreted, we find that section 7.9 does not violate the Guidelines. Thus, the language of the proposal referring to "[t]he specimen" and the Union's statement clearly reflecting that the specimens to be stored are positive specimens, sufficiently indicate that the proposal is intended to apply only to positive samples. If, on the other hand, the proposal had stated that "all" specimens would be stored, the proposal clearly would be inconsistent with the Guidelines. Accordingly, and as we find no other basis on which to conclude that the proposal is outside the duty to bargain, we conclude that section 7.9 is negotiable.

VII. Proposal 8

The Union proposes to insert the following language as Encl. 5, sect. B.2(c):

No disciplinary action will be taken against unit employees who test positive for drug use until the employee has had an opportunity to challenge the validity or accuracy of the drug test, has had an opportunity to present the results of independent drug tests to supervisory personnel, and has exhausted all grievance arbitration and Merit System[s] Protection Board appeal procedures.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 8 would provide for an indefinite stay of all disciplinary actions against employees based on a positive drug test result. The Agency acknowledges that it could comply with section 5(c) of Executive Order 12564, which requires the removal of illegal drug users from sensitive positions through a nondisciplinary action, such as a detail or a reassignment. However, the Agency claims that it could not implement disciplinary action until after the events in the proposal were completed. In this regard, the Agency points to the Union's explanation that employees would have the opportunity to challenge test results "through the 'appropriate grievance or appeal process.'" Statement of Position at 63-64. According to the Agency, this requirement, which could include judicial review, would extend the period during which the stay would be in effect for several years.

The Agency explains that under 5 U.S.C. § 7513(b)(1), the usual 30-day advance notice period of an intent to take action against an employee is not required when the agency has reasonable cause to believe that the employee committed a crime, such as illegal drug use, that is punishable by imprisonment. The Agency claims that 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 (1990) (Proposal 2d) (Wright-Patterson AFB), the Authority found that a proposed stay of disciplinary action, pending an appeal of the action through the negotiated grievance procedure, did not permit the agency to take immediate action under 5 U.S.C. § 7513(b)(1) and, therefore, that it directly interfered with the agency's right to discipline under section 7106(a)(2)(A) of the Statute. Because the language of Proposal 8 similarly would not permit the Agency to take immediate disciplinary action against an employee who tests positive for illegal drug use until the requirements of the proposal are satisfied, the Agency contends that the proposal directly interferes with management's rights to discipline and remove employees.

However, even if the proposal permitted the Agency to take action under 5 U.S.C. § 7513(b)(1), the Agency claims that the proposal would still interfere with management's ability to discipline and remove employees. While recognizing that the Authority has found negotiable proposals that provide for a stay of discipline pending completion of a grievance procedure, the Agency asserts that those proposals contained some limitation on the duration of the stay of disciplinary action. As an example, the Agency cites the proposal in Nuclear Regulatory Commission, which granted a stay of disciplinary action until the earlier of the completion of the grievance and appeal procedures or 90 days. In contrast, the Agency argues that the stay of disciplinary action proposed in this case is much more extensive and could last for several years. The Agency notes that in American Federation of Government Employees, Local 2188 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45 (1988) (Tooele Army Depot), the Authority found nonnegotiable a proposal that would have prevented the implementation of mandatory urinalysis until all lawsuits filed by the union or employees had been resolved. The Agency explains that the Authority determined that the union and the employees had control over the filing of lawsuits and that they had an interest in preventing the implementation of the drug testing program. Similarly, the Agency claims that the Union or employees in this case could seek judicial review under Proposal 8 merely to delay the implementation of disciplinary action.

The Agency further contends that Proposal 8 is not an appropriate arrangement under section 7106(b)(3) of the Statute because it excessively interferes with its right to discipline. The Agency asserts that the proposal would have the same effect as the proposal in Wright-Patterson AFB, which was found to excessively interfere with management's right to discipline because it would have interfered with management's right to remove an employee under 5 U.S.C. § 7513(b)(1). Even if the Union made some allowance for the application of 5 U.S.C. § 7513(b)(1) in this case, however, the Agency claims that Proposal 8 would excessively interfere with management's rights because the scope of the proposal could prevent management from taking disciplinary action for several years, regardless of the number of times an employee tests positive for illegal drugs. The Agency views this as an excessive burden that could seriously affect the Agency's ability to implement a drug-free workplace.

2. Union

The Union contends that the stay of disciplinary action contained in the proposal is limited to providing an employee with the opportunity to submit independent test results to his or her superior; challenge the test result; and exhaust the grievance and appeal procedures. The Union states that the Agency could take immediate disciplinary action under 5 U.S.C. § 7513(b)(1) and that that provision would take precedence over any negotiated provision regarding the Agency's drug testing program because the parties' agreement provides for the precedence of existing and future laws and regulations. In addition, the Union claims that the proposal is limited to disciplinary action resulting from a positive drug test and would not apply to disciplinary action concerning other drug-related activities.

The Union further contends that Proposal 8 is an appropriate arrangement under section 7106(b)(3) because it would not excessively interfere with management's right to take disciplinary action. The Union claims that Proposal 8 is similar to a proposal found negotiable in Aberdeen Proving Ground that permitted an employee to provide supplementary evidence, such as a split sample, to facilitate a personnel decision. The Union also cites in support Nuclear Regulatory Commission, in which a proposal that stayed disciplinary action until the earlier of the completion of the grievance procedure or 90 days was held negotiable. The Union asserts that Proposal 8 would not preclude the Agency from removing an employee from a sensitive position or initiating disciplinary action as required by Executive Order 12564.

The Union maintains that the benefits to employees from the proposal are significant. According to the Union, a verified positive drug test could tarnish an employee's reputation and prevent that employee from returning to a sensitive job, despite the employee's successful completion of a rehabilitation program. Finally, the Union explains that in the event of a false positive test result, the proposal would relieve an employee of the financial burden of an unmerited suspension that might be overturned on appeal.

B. Analysis and Conclusions

We conclude that Proposal 8 is a negotiable procedure under section 7106(b)(2) of the Statute.

Initially, we reject the Agency's claim that Proposal 8 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. In Nuclear Regulatory Commission, we found that a proposal that required a stay of disciplinary or adverse action against an employee who was found to use illegal drugs was consistent with 5 U.S.C. § 7513(b)(1) because of the union's express statement that the proposal was not intended to override the requirements of 5 U.S.C. § 7513(b)(1). We reach the same result here. Although Proposal 8 provides, in part, that no disciplinary action will be taken against an employee, the Union states that 5 U.S.C. § 7513(b)(1) would take precedence over the negotiated provision and that the Agency could take immediate disciplinary action under that section. We find that the wording of Proposal 8 is consistent with the Union's statement of intent and that the proposal does not interfere with the Agency's right to take disciplinary action in accordance with 5 U.S.C. § 7513(b)(1).

We also find no merit to the Agency's contention that the proposal interferes with management's right to discipline and remove employees. The Authority has found certain proposals that would stay management action only pending the completion of the negotiated grievance procedure or other applicable appellate procedures to be within the duty to bargain under section 7106(b)(2) of the Statute. See American Federation of Government Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA 130, 131-34 (1990) (proposal requiring, in most circumstances, that the agency stay a suspension or removal pending exhaustion of contractual review procedures, found to be a procedure); National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development, 15 FLRA 465, 466 (1984) (proposal requiring that the agency stay a reduction-in-force action pending an appeal to the Merit Systems Protection Board of a questionable or prohibited personnel practice or action found negotiable) (citing American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982)). Consistent with Authority precedent, we find that Proposal 8 would stay management action only pending the completion of the grievance arbitration or MSPB appeal procedures and does not directly interfere with management's right to discipline employees. Moreover, it is uncontested that the Agency would retain the ability to detail or reassign from a sensitive position an employee who is found to use illegal drugs.

We find that the Agency's reliance on Tooele Army Depot is misplaced. In that case, the Authority found nonnegotiable a proposal that would have prevented the agency from implementing mandatory drug testing of employees until all lawsuits filed by the union or bargaining unit employees had been resolved. In reaching that result, the Authority noted that control over the filing of lawsuits rested entirely with the union or bargaining unit employees who could have prevented implementation of the agency's drug testing program. In contrast, Proposal 8 would apply only after the Agency has exercised its right to conduct a drug test. Any delay in effectuating discipline against an employee who tests positive for drug use that would be caused by resort to the grievance or appeal procedures would be limited to an employee aggrieved by the Agency's action. We also find misplaced the Agency's reliance on Nuclear Regulatory Commission. In that case, the Authority did not address whether a proposed stay of disciplinary or adverse action constituted a negotiable procedure. Rather, the Authority assumed that the proposal directly interfered with management's right to discipline and found that the proposal was negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

Based on the foregoing, we conclude that the proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

VIII. Proposal 9

The Union proposes to add the underscored language to OPNAVINST 5355.6(a)13:

Ensure that during each fiscal year, the number of tests conducted under all categories of testing represents a total equal to the number of TDP positions at the activity, multiplied by 1.3. This number should be allocated quarterly so that, for the fiscal year, variations from the target number are insignificant. For the purpose of calculating the number of tests conducted, the volunteers will not be included in the number of TDP positions.

A. Positions of the Parties

1. Agency

The Agency explains that, under its regulation, the number of drug tests conducted is the sum of the number of persons in the testing pool multiplied by 1.3. The Agency contends that Proposal 9 is intended to exclude employees who have volunteered for random drug testing from the TDP pool, resulting in a smaller testing pool and a decrease in the number of tests conducted annually. The Agency claims that proposals that reduce the number of drug tests conducted directly interfere with the right to determine internal security practices under section 7106(a)(1) of the Statute. In support, the Agency cites Graphics Communications International Union, Local 98-L and U.S. Department of Defense, Defense Mapping Agency, Hydrographic Topographic Command, Washington, D.C., 39 FLRA 437 (1991) and American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203 (1990). The Agency further argues that Proposal 9 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute because it directly and excessively interferes with its right to determine its internal security practices.

2. Union

The Union contends that the Agency has misunderstood Proposal 9 and that the proposal is not intended to exclude volunteers from the TDP pool. The Union claims that the Agency has misinterpreted its own regulation by stating that the number of tests is equal to 1.3 times the total number of employees in the TDP pool. The Union explains that the exact language of the regulation states that the number of tests conducted in each fiscal year will be 1.3 times the number of TDP positions. Under the proposal, the Union wishes to ensure that volunteers are not added to TDP positions for purposes of calculating the total number of drug tests that will be conducted. The Union also states that Proposal 9 would not apply to the frequency of testing and would not limit the number of times an employee could be tested.

The Union further contends that Proposal 9 is an appropriate arrangement under section 7106(b)(3) because it does not excessively interfere with the Agency's right to determine its internal security practices. The Union claims that the proposal would deter illegal drug use while reducing the potential for unnecessary invasions of privacy, false positive test results, and unwarranted disciplinary actions.

B. Analysis and Conclusions

We find that the record is not sufficient for us to make a negotiability determination on Proposal 9. Therefore, we will dismiss the petition for review as to this proposal.

Under OPNAVINST 5355, sect. 6(b)3, the DPC is responsible for compiling and maintaining a list of the TDPs, or testing designated positions. The regulation further provides that this list constitutes the TDP pool for random drug testing. In addition to random drug testing, OPNAVINST 5355, Encl. 3, Section B.5. states that employees who otherwise would not be subject to random drug testing may volunteer to be included in the TDP pool. This section implies that the employees who volunteer to participate in the random drug testing program do not occupy TDPs and, therefore, that the pool of employees from which the Agency may draw for the purpose of conducting random drug tests is composed of employees who occupy TDPs and employees who occupy non-TDPs but who volunteer to participate in the random drug testing program. If the Agency's regulation was limited to these provisions, we would find that the Agency's interpretation of the proposal is inaccurate and that the proposal would not have any effect on the number of tests that the Agency may conduct in each fiscal year. We would reach this conclusion because the number of tests conducted in a fiscal year is fixed by determining the number of TDPs and multiplying that number by 1.3. In this situation, the number of volunteers would have no effect on the number of tests conducted because volunteers do not occupy TDPs and, based on the Agency's regulation, could not be included in the calculation of the number of tests.

However, OPNAVINST 5355, Encl. 3, Section E.1. states that an employee, regardless of position, may volunteer to be included in the random drug testing program. This section suggests that an employee who occupies a TDP may volunteer to participate in the random drug testing program. In this situation, if an employee who volunteers for random drug testing is identified by the DPC as occupying a TDP, we would find that the Agency's interpretation of Proposal 9 is accurate. The proposal would preclude the inclusion of volunteers in the number of TDPs for the purpose of calculating the number of random drug tests for each fiscal year. If employees who volunteer also occupy TDPs, then the proposal would require that the number of volunteers occupying TDPs be subtracted from the number of TDPs that is multiplied by 1.3, resulting in fewer tests conducted in each fiscal year.

We find nothing in the parties' submissions to clarify this ambiguity. It is well established that 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 (D.C. Cir. 1982). A party failing to meet this burden acts at its peril. Without a more substantial record, we cannot determine the meaning of the proposal in dispute. Consequently, we are unable to determine the effect of Proposal 9 on the calculation of the number of random drug tests that the Agency may conduct in each fiscal year and we cannot assess the effect of the proposal on the exercise of management's right to determine its internal security practices. Accordingly, we will dismiss the petition for review as to Proposal 9.

IX. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposal 3, Encl. 2, sect. 1(d), Proposals 7.1, 7.2, 7.4, 7.7, 7.9, 7.11, and 8.(6) The petition for review as to Proposals 1 and 2, Proposal 3, Encl. 2, sect. 1(a). sect. 2, and App. A, Proposals 4, 6, 7.3, 7.5, 7.6, 7.8, and 9 is dismissed.




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

1. Member Talkin's dissenting opinion as to Proposal 4 is set forth at footnote 3.

2. In its Statement of Position, the Agency withdrew its allegation of nonnegotiability regarding Encl. 2, sect. 1 of Proposal 3, the first sentence of Encl. 4, sect. D of Proposal 6, section 10 of Proposal 7, the first sentence of section 11 of Proposal 7, and Proposal 10. In its Response, the Union requested the withdrawal of the portions of Proposal 5 that it had appealed and that were declared nonnegotiable by the Agency. That request is granted. We will not consider the cited proposals or portions thereof further.

3. For the reasons more fully discussed in her dissenting opinions in Department of the Interior and Sierra Army Depot I, Member Talkin would not find the 1 hour notice requirement to be an impediment that would either undermine the Agency's ability to conduct random drug testing of employees or frustrate the purpose of detecting illegal drug use. Noting in particular that a 1 hour notice period merely expands the notice period already provided by the Agency by at most 30 minutes, Member Talkin would find that the proposal does not directly interfere with the Agency's right to determine its internal security practices. See Department of the Interior, 41 FLRA at 1171 n.4; Sierra Army Depot I, 37 FLRA 1440-42. Additionally, although unnecessary to her disposition, Member Talkin would find that the potential benefits to employees of a limited notice period prior to undergoing a drug test outweigh the burdens imposed on the Agency. See Department of the Interior, 41 FLRA at 1171 n.4; Sierra Army Depot I, 37 FLRA at 1453-55.

4. The Agency withdrew its allegation of nonnegotiability with respect to the first sentence of the proposal based on the Union's acknowledgment that dru