DEPARTMENT OF THE NAVY NORFOLK NAVAL SHIPYARD PORTSMOUTH, VIRGINIA and LOCAL 1, INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF THE NAVY

NORFOLK NAVAL SHIPYARD

PORTSMOUTH, VIRGINIA

and

LOCAL 1, INTERNATIONAL FEDERATION OF

PROFESSIONAL AND TECHNICAL

ENGINEERS, AFL-CIO

Case No. 93 FSIP 239

DECISION AND ORDER

    The Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia (Employer or Shipyard) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Local 1, International Federation of Professional and Technical Engineers, AFL-CIO (Union or IFPTE).

    After investigation of the request for assistance, the Panel directed the parties to participate in an informal conference with Staff Associate Gladys M. Hernandez for the purpose of resolving their dispute over the Employer's Drug-Free Workplace Program (DFWP). The parties were advised that if no settlement were reached, Ms. Hernandez would report to the Panel on the status of the dispute, including the parties' final offers and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Ms. Hernandez met with the parties on February 1, 1994, in Norfolk, Virginia. With her assistance, the parties resolved 13 of the 14 outstanding issues. She has reported to the Panel on the one remaining issue based on the record developed by the parties. The Panel has now considered the entire record.

BACKGROUND

    The Employer's mission is to repair, overhaul, and maintain naval vessels. The approximately 1,400 General Schedule employees represented by the Union include engineers, engineering technicians and aides, chemists, architects, and draftsmen, among others. The parties' collective-bargaining agreement was due to expire on January 8, 1988, but remains in effect until a successor is implemented.

    The dispute arose during negotiations over the Employer's proposed instruction, NAVSHIPYDNORINST 5355, implementing the Department of the Navy's DFWP originally promulgated in Office of Civilian Personnel Management Instruction (OCPMINST) 12792.3, dated 30 June 1989.(1) As is relevant to this case, the definition of random drug testing (RDT) has remained constant since it was first announced in OCPMINST 12792.3,(2) and its constitutionality has not been specifically challenged. The Federal unions did, however, challenge the constitutionality of the application of the RDT program to employees occupying specific job positions identified as testing-designated positions (TDPs).(3) Currently, there are no employees in the bargaining unit occupying TDPs. The Employer reports that "no bargaining-unit employees . . . are scheduled to be added to the TDP list now or in the future." Should it determine to do so, the parties have agreed that either the affected employees or the Union may grieve the determination.

ISSUE AT IMPASSE

    The parties essentially disagree over the definition of RDT under the Employer's DFWP.

POSITIONS OF THE PARTIES

1. The Employer's Position

    Preliminarily, the Employer argues that, since there are no TDPs in the unit, "the provision of the Shipyard instruction in question is not a condition of employment for the bargaining-unit employees of IFPTE."(4) The Panel, therefore, should "deny the position of the Union." Should the Panel decide "to ignore the statutory requirement" that a matter must be a condition of employment "to be a proper subject for negotiations," it generally proposes that "the flexibility of the definition" in the Navy's DFWP be "incorporated" into its proposal. Specifically, it proposes the following wording:

Random testing of testing-designated-position employees working in a specific geographic area, organizational unit, or position may be approved by the Drug Program Coordinator (DPC). Requests for such random testing must be made in writing by or via the Department or Office Head, including written justification for the request. . . . If random testing is approved for bargaining-unit employees on any basis other than the total pool of testing-designated positions (i.e., employees working in a specific geographic area, organizational unit, or position), the Union will be advised of the testing on the day of the collection.

Contrary to the Union's argument, its proposal is fair and reasonable. In this regard, it addresses the Union's "unfounded fear" of "potential" abuse "by establishing requirements for the DPC to ensure accountability, documentation, and Union notification when random testing is approved on any basis other than the total pool of TDPs." It does so while still providing management with the "necessary discretion" on the matter. The Union has not shown how those requirements fail to address its "'what if' fears."

    Requiring selection of employees from the entire TDP pool, as the Union proposes, would make the Shipyard's DFWP "unmanageable from a logistics and security viewpoint" because it would (1) "lead to selections from all three shifts and from all geographic areas the Shipyard services," and (2) "prohibit the Shipyard from conducting a sweep of an organizational unit where it may have a legitimate concern regarding illegal drug use."(5) Also, it would require the collection contractor, who is paid to take collections "at a specific time and place," to have collection personnel present at all Shipyard locations during all three shifts. This would make the collection contract "unworkable." Finally, because the RDT program "clearly do[es] not [a]ffect and will not [a]ffect bargaining-unit employees," the Union has not demonstrated a need for its proposal.

2. The Union's Position

    The Union proposes to define RDT as follows:

A system of drug testing imposed without individualized suspicion that a particular individual is using illegal drugs. Employees will be randomly selected from the entire TDP pool.

"True" RDT can be achieved only through selection of employees for testing from the entire pool of TDPs. In fact, the United States Court of Appeals for the Ninth Circuit would be "appalled" to learn that the Navy intended to make selections otherwise.

    Under the Employer's proposal, which was not reviewed by the District Court in Cheney I, as it erroneously suggests, it seeks the "flexibility" to "target individual employees," that is, "one who occupies a certain TDP."(6) Such "managerial discretion" is totally inconsistent "with the spirit, if not the letter" of the Department of Health and Human Services Mandatory Guidelines for Federal Workplace Drug Testing Programs,(7) the Federal Personnel Manual (FPM)(8) and "several court decisions on drug testing."(9) In fact, those court decisions indicate that management discretion in selecting employees for RDT weighs against the constitutionality of a drug testing plan. Moreover, allowing department and office heads to test "subsets" of the TDP pool "introduces a bias" and has "the potential for harassment of individual employees." In this regard, unlike under reasonable suspicion testing, employees selected for RDT will not "be provided a copy of the evidence and given the opportunity to rebut charges" of illegal drug use.

    The Employer's position throughout negotiations has been that its proposal would allow for "general suspicion" testing; that is, it could target for RDT an employee in a TDP who it suspects of illegal drug use or drug trafficking, where it does not have enough evidence to conduct reasonable suspicion testing. Such testing is not a type recognized by the Supreme Court in Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989) and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) or by any lower courts and, therefore, should not be permitted by the Panel to be an option for the Employer.

CONCLUSIONS

    Having considered the evidence and arguments presented by the parties, we find the Employer's definition is the more reasonable, and shall order adoption of its proposal. Preliminarily, we note that none of the employees in the unit represented by the Union are currently in TDPs, and that the District Court, in reviewing the Navy's DFWP, established strict criteria for determining whether a position should be subject to random testing so as not to violate employees' Fourth Amendment rights.(10) Moreover, the parties have already agreed that employees and the Union are entitled to file grievances challenging the initial designation of bargaining-unit positions as TDPs. Given these safeguards, the record supports the conclusion that the privacy interests of employees subject to random testing have been carefully scrutinized and protected.

    Turning specifically to the Employer's definition of RDT, contrary to the Union's position, it is consistent with the definition set out in the applicable Navy instructions, the constitutionality of which was not challenged by IFPTE before the District Court. Also, it strikes a better balance between employees' privacy interests and the Employer's concerns over the costs, logistics, and overall administration of implementing the RDT program. With regard to the Union's concerns over possible abuse, we recognize that even though there is no indication that the Employer's definition on its face violates the Fourth Amendment, it is possible that the Employer could apply it in such a manner; if so, however, we are persuaded that the Union's ability to challenge such application in an appropriate forum should satisfy its concern over possible abuses. Such challenge should be facilitated by written documents in support of random testing required under the Employer's proposal, as well as the specific notice required to be given to the Union when employees' selection for such testing is from other than the entire TDP pool.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to the Panel's regulations, 5 C.F.R. § 2471.6 (a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

    The parties shall adopt the Employer's proposal.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

March 11, 1994

Washington, D.C.

 

1.The Navy's instruction was subsequently revised to comply with the Northern District of California District Court's rulings in American Federation of Government Employees, Local 1533 v. Cheney, 754 F. Supp. 1409 (N.D. Cal. 1990), affirmed, 944 F.2d 503 (9th Cir. 1991)(Cheney I) and American Federation of Government Employees v. Cheney, Nos. C-88-3823-DLJ, C-89-4112-DLJ, C-89-4443-DLJ (N.D. Cal. Aug. 14, 1992) (Cheney II), and published as OCPMINST 12792.3A, dated 10 September 1993. IFPTE was an intervenor in both cases.

2.OCPMINST 12792.3A, at A-2, defines RDT as follows: 

A system of drug testing imposed without individualized suspicion that a particular individual is using illegal drugs. Random testing may either be uniform unannounced testing of testing designated positions working in a specific geographic area, organizational unit, or position or randomly selected employees based on neutral criterion such as social security number.

3.Cheney I, 754 F. Supp. at 1414 and Cheney II, at 13-14.

4.We note that the Employer first raised this argument in its post-informal-conference position statement.

5.The Employer believes that its proposed definition will allow it to target individual groups of employees when it "generally suspects" drug use among all or some of them, that is, when it does not have enough evidence to support reasonable suspicion testing.

6.Letter of 20 August 1992, from R.M. James, Jr., Program Manager, Labor and Employee Relations, Department of the Navy, Office of Civilian Personnel Management, to Julia Atkins Clark, Counsel, IFPTE.

7.53 Fed. Reg. 11,970 (April 11, 1988).

8.We note that the parts of the FPM relating to the establishment of DFWP, specifically, FPM Letters 792-16 through 792-19, were abolished by the Office of Personnel Management as of December 31, 1993.

9.See, e.g., International Bhd. of Teamsters v. Department of Transportation, 932 F.2d 1292 (9th Cir. 1991); Kemp v. Claiborne County Hospital, 763 F. Supp