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The decision of the Authority follows:
31 FLRA NO. 7 31 FLRA 21 10 FEB 1988 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1759 Union and DEPARTMENT OF THE ARMY, HEADQUARTERS FORT MCPHERSON, GEORGIA Agency Case No. 0-NG-1307 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of three proposals. 1 These proposals would: (1) limit the Agency to testing an employee for illegal drug use only in those circumstances where there is probable cause to believe that the employee is under the influence of a controlled substance while on duty; (2) prevent the Agency from taking certain actions against employees based on any "unfinalized" drug testing; and (3) require the Agency to pay employees' drug rehabilitation costs. We find that Proposal 1, which restricts the Agency to testing an employee for illegal drug use only on a showing of probable cause, is outside the duty to bargain because it directly interferes with the Agency's right to determine its internal security practices and is not an appropriate arrangement under section 7106(b)(3). Proposal 2, which prevents the Agency from taking certain actions against employees based on "unfinalized" drug testing, we find to be negotiable because it requires the Agency to exercise its management rights in accordance with Executive Order 12564. Finally, we find that Proposal 3, which requires the Agency to pay employees' drug rehabilitation costs, is outside the duty to bargain because it is inconsistent with Federal Personnel Manual (FPM) Supplement 792-2, subchapter S6-3, a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. II. Background On February 10, 1986, the Department of the Army promulgated regulations implementing a Department of Defense Directive concerning civilian employee drug abuse testing. Interim Change No. Ill to Army Regulation 600-85, Alcohol and Drug Abuse Prevention and Control Program (Interim Change to AR 600-85). The proposals in dispute in this case were offered by the Union in connection with bargaining on the implementation of the Interim Change to AR 600-85, which established a drug abuse testing program for civilian employees in critical jobs. In 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 No. 115 (1988), we discussed the provisions of the Interim Change to AR 600-85 and outlined in detail subsequent events having direct relevance to drug testing programs in the Executive Branch of the Federal Government in general and to the Army drug testing program in particular. Specifically, we addressed: (1) the issuance of Executive Order 12564, entitled "Drug - Free Federal Workplace"; (2) the issuance of FPM Letter 792-16 (November 28, 1986), implementing section 6(a)(1) of the Executive Order; (3) the publication of the proposed "Scientific and Technical Guidelines for Drug Testing Programs," by the Department of Health and Human Services, pursuant to Section 4(d) of the Executive Order; and (4) the enactment of section 503 of the Supplemental Appropriations Act of 1987, Pub. L. No. 100-71, 101 Stat. 391, 468 (July 11, 1987). We also noted that the Authority had invited interested parties to file amicus briefs addressing the negotiability of proposals relating to various aspects of agency drug testing programs. See U.S. Army Armament, Munitions and Chemical Command, slip op. at 2-5. We also discussed Federal court litigation involving challenges to the constitutionality of the Army's drug testing program. Consistent with the decision of the U.S. Court of Appeals for the District of Columbia Circuit in NFFE v. Weinberger, 818 F.2d 935 (D.C. Cir. 1987), we concluded that the only issues properly before us concerned the negotiability of union proposals, not the legality of drug testing in the Federal Government. Consequently, to the extent that the constitutionality of the Army's drug testing program is raised in this case, we will not consider that issue. Rather, for purposes of decisions on this issue, we will rely on the validity of the Executive Order and agency drug testing programs. See U.S. Army Armament, Munitions and Chemical Command, slip op. at 5-7. III. Proposal 1 Section 4. Probable Cause In addition to any other criteria contained in this article, employees will be required to undergo urinalysis only where the employer establishes that it has probable cause to believe that an employee in a designated position is under the influence of a controlled substance while on duty. A. Positions of the Parties The Agency contends that Proposal 1 is nonnegotiable because it interferes with management's right under section 7106(a)(1) to determine its internal security practices. The Agency further contends that the proposal conflicts with an Agency regulation, the Interim Change to AR 600-85, for which a compelling need exists. According to the Agency, Proposal 1 would limit its right to test randomly or in connection with an accident or investigation and would permit drug testing of employees based only on probable cause. The Union argues that the Agency's drug testing program, as set forth in the Interim Change to AR 600-85, is unconstitutional because random testing is contrary to the Fourth Amendment of the United States Constitution. The Union further contends that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute since it does not excessively interfere with the exercise of management's rights. According to the Union, Proposal 1 only would require the Agency to have a legitimate belief that an employee is using drugs before implementing its drug testing procedures. Finally, the Union argues that the Agency does not support its argument that a compelling need exists for its regulation to bar negotiation on this proposal. B. Discussion Proposal 1 would permit the Agency to test employees for drug usage only where the Agency establishes that it has probable cause to believe that an employee is under the influence of a controlled substance while on duty. The proposal is to the same effect as Proposal 1 in Department of the Army, U.S. Army Armament, Munitions and Chemical Command, 30 FLRA No. 115 (1988). In that case, we found that the proposal, which provided for the drug testing of employees only on the basis of probable cause or reasonable suspicion, was nonnegotiable. We determined that the proposal directly interfered with the agency's right to determine its internal security practices under section 7106(a)(1) because it totally precluded random drug testing. Further, based on our holding in National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753, 758-60 (1986), we determined that, by reversing the substantive effect of the agency's decision to randomly test employees for drug use, the proposal excessively interfered with the agency's right to determine its internal security practices under section 7106(a)(1) so as not to constitute an appropriate arrangement within the meaning of section 7106(b)(3). Proposal 1, which also would restrict the Agency to testing only on a showing of probable cause, is outside the duty to bargain under section 7106(a)(1) and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute for the reasons set forth in U.S. Army Armament, Munitions and Chemical Command. In view of this disposition, it is unnecessary for us to decide the Agency's contention that Proposal 1 is barred from negotiation by an Agency regulation for which there is a compelling need. IV. Proposal 2 Section 7. Temporary Measures Pending Resolution The results of positive urinalysis report: i.e., an apparent indication of drug usage, which would be considered adverse to the employee, may result in a management decision to temporarily detail the employee to other duties, deny the employee access to classified material, and/or place the employee on administrative leave. However, the employee shall suffer no reduction in pay, benefits, or career opportunities as a result of any unifinalized testing. (Only the underscored portion is in dispute.) A. Positions of the Parties The Agency contends that the proposal is inconsistent with management's right under section 7106(a)(2)(A) to suspend, remove, reduce in grade or pay, or take other disciplinary actions against employees. Further, the Agency argues that because Proposal 2 establishes a precondition--finalized drug tests--before an employee can be placed in a lower grade position or a position with reduced "career opportunities," the proposal conditions the exercise of a management right on the prior exercise by management of other management rights. Finally, the Agency contends that the proposal is inconsistent with an Agency regulation, the Interim Change to AR 600-85, for which a compelling need exists and that the proposal does not constitute a "procedure" under section 7106(b)(2) of the Statute. The Union disputes the Agency's contentions and, relying on the decision of the U.S. Court of Appeals for the Tenth Circuit in United States Air Force v. FLRA, 717 F.2d 1314 (10th Cir. 1983), argues that Proposal 2 is a negotiable procedure because it does not prevent the Agency from exercising its management rights. The Union further contends that the proposal is consistent with Executive Order 12564. Finally, the Union argues that the proposal is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. B. Discussion The disputed portion of Proposal 2 would preclude management from taking any action which would result in a reduction in pay, benefits, or career opportunities based on a positive result from "unfinalized" drug testing. We conclude, based on the Union's submissions, that the Union intends "unfinalized" testing to mean an initial screening test. Union Response to Agency Statement of Position at 14-15. As interpreted by the Union, therefore, Proposal 2 would preclude management from taking the actions specified based on a positive result from an initial screening test. Actions resulting in a reduction in pay, benefits, or career opportunities could only be taken if a subsequent test confirmed the results of the initial test. Section 5(e) of Executive Order 12564 provides, in relevant part, as follows: Preliminary test results may not be used in an administrative proceeding unless they are confirmed by a second analysis of the same sample or unless the employee confirms the accuracy of the initial test by admitting the use of illegal drugs. We interpret this provision of the Executive Order as precluding agencies from taking any action against an employee involving an administrative proceeding--for example, an agency grievance procedure, the negotiated grievance procedure, or proceedings before the Merit Systems Protection Board--based solely on unconfirmed initial positive test results. We also find that the actions precluded by Proposal 2 include those actions which would involve a loss of pay and benefits, such as a demotion, removal, or suspension without pay. These actions would involve "administrative proceedings." Therefore, we find that the actions covered by the Union's proposal are covered by section 5(e) of the Executive Order. By preventing management from taking these disciplinary actions against employees based on the results of initial screening tests, Proposal 2 would require nothing different from that which is also required by Section 5(e) of the Executive Order, namely, that an action against an employee must be based on a positive confirmatory test. Contrary to the Agency's position, Proposal 2 does not directly interfere with management's rights under section 7106(a)(2)(A). Rather, consistent with section 7106(a)(2), the proposal simply requires that management exercise its rights "in accordance with law." In our view, Executive Order 12564, issued pursuant to the President's authority over the Federal civil service, constitutes law within the meaning of section 7117(a)(1) of the Statute. See the Preamble to Executive Order 12564 and 5 U.S.C. 3301 and 7301. See also Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264, 273-76 (1974) and Association for Women in Science v. Califano, 566 F.2d 339 (D.C. Cir. 1977). While the portion of Proposal 2 referring to "career opportunities" is not clear, the Agency interprets that portion of the proposal as being synonymous with a "demotion" or assignment to a lower-graded position. Agency Statement of Position at 7. The Union does not dispute that interpretation. Consequently, that portion of Proposal 2 adds no further substantive restriction to those discussed above and would not, in and of itself, render the proposal nonnegotiable. Finally, the Agency's contention that Proposal 2 conflicts with an Agency regulation for which a compelling need exists cannot be sustained. In order to establish that a proposal is nonnegotiable on the basis of compelling need, an agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's standards as set forth in section 2424.11 of our Regulations. Unless an agency presents facts and arguments bearing on each of those questions, we cannot judge the validity of the Agency's contentions. See, for example, American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870 (1986) (Proposal 7). The Agency in this case fails to demonstrate in what manner Proposal 2 conflicts with its regulation. The Agency did not cite any provision of its regulation which would conflict with the proposal. Because the Agency has not shown that a conflict exists between its regulation and this proposal, we do not reach the question of whether a compelling need exists for the Agency's regulation to bar negotiation on the proposal. We also note that the Agency indicates that it does not intend to take an adverse action against an employee before that employee's preliminary drug test results are confirmed. Agency Statement of Position at 11. For the reasons stated above, we find that Proposal 2 is within the duty to bargain. V. Proposal 3 Section 9. DoD Civilian Employee Drug Abuse Testing Program The employer shall comply with the Department of Defense Directive DoD Civilian Employees Drug Abuse Testing Program relating to the counseling and treatment of employees whose preliminary tests have been later confirmed as positive. Such treatment will be provided by the employer at no cost to the employee. (Only the underscored portion is in dispute.) A. Positions of the Parties The Agency contends that Proposal 3 is inconsistent with law and a Government-wide regulation. According to the Agency, there is no provision in Public Law Nos. 91-616 and 92-255 authorizing payment by an Agency of the rehabilitation costs of Federal employees. Further, the Agency asserts that subchapter S6 of the Federal Personnel Manual Supplement 792-2 specifically requires a Federal employee to bear the costs of treating his or her own drinking or drug problem. Finally, the Agency contends that the proposal conflicts with an Agency regulation, the Interim Change to AR 600-85, for which a compelling need exists. According to the Union, this proposal is negotiable because: (1) the laws cited by the Agency do not preclude the Agency from paying employee rehabilitation costs, and (2) subchapter S6 of the FPM is not relevant to this proposal since it relates to costs of employee rehabilitation at an outside facility, rather than, as intended by this proposal, as a part of the Agency's program. Finally, the Union argues that the Agency has the authority and discretion to provide the services required by this proposal to employees at no cost because: (1) agencies are encouraged to provide prevention, treatment, and rehabilitation services for drug abusers among Federal employees; and (2) 5 U.S.C. 7901(a) specifically authorizes Federal agencies to promote and maintain the "physical and mental" fitness of their Federal employees. B. Discussion The disputed portion of Proposal 3 would require the Agency to pay the costs of any treatment which is ordered pursuant to the Department of Defense Directive establishing the Civilian Employees Drug Abuse Testing Program. Office of Personnel Management (OPM) regulations and other directives governing drug abuse testing programs require that agencies provide counseling and referral services to employees. See PPM, chapter 792 and FPM Supplement 792-2. See also Executive Order 12564, Sections 2(b)(2) and (4), (4)(a), 5(a) and (c), 6(a)(3), and 7(f) concerning the establishment and operation of Employee Assistance Programs; FPM Letter 792-16, Attachment 6, "Model Employee Assistance Program in Support of a Drug - Free Workplace." However, while agencies are required to refer employees for treatment and rehabilitation, they are not required to provide treatment and rehabilitation services or establish treatment and rehabilitation programs themselves, nor do the regulations contemplate that agencies will do so. See Executive Order 12564, Section 7(f) and FPM Letter, Att. 6, Section 8A and C. See also 57 Comp. Gen. 62, 65-66 (1977). We conclude that the undisputed portion of Proposal 3 requires management to refer employees with confirmed positive test results for treatment and rehabilitation and that the disputed portion of the proposal requires the Agency, to pay the costs of the treatment and rehabilitation to which employees have been referred. We also conclude that the Union's statement as to the intent of the proposal, namely, that the proposal is confined to treatment provided by the Agency, is based on a misunderstanding of the requirements of Employee Assistance Programs. Under the regulations governing those programs, agencies are not required to provide treatment services to employees. By requiring management to pay for the treatment to which it has referred employees pursuant to the requirements of an Employee Assistance Program, the disputed portion of Proposal 3 is inconsistent with FPM Supplement 792-2, subchapter S6-3. That provision states that "(a)n employee is responsible for the costs of treating his or her drinking or drug problem(.)" Under that provision, therefore, the costs of an employee's participation in a drug treatment program are to be paid by the employee, not by the agency. Accord 64 Comp. Gen. 789 (1985); Comp. Gen. B-198804 (Dec. 31, 1980) (unpublished) (under FPM Supplement 792-2, subchapter S6-3, agency is not authorized to pay costs of employee's alcohol rehabilitation program). The proposal is inconsistent with FPM Supplement 792-2, subchapter S6-3. Therefore, it is outside the duty to bargain under section 7117(a)(1) of the Statute if that provision constitutes a Government-wide regulation. As to whether subchapter S6-3 is "Government-wide" within the meaning of section 7117(a)(1), the provisions of subchapter S6 apply to "(a)ll agencies employing Federal civilian employees." FPM, chapter 792, subchapter 5-2; FPM Supplement 792-2, subchapter S6-1. See also 5 C.F.R. 792.103 (1987). As such, subchapter S6 is generally applicable to the Federal workforce as a whole. We find, therefore, that FPM Supplement 792-2, subchapter S6-3 is "Government-wide" within the meaning of section 7117(a)(1) of the Statute. As to whether subchapter S6 is a "regulation" within the meaning of section 7117(a)(1), under Section 413 of Pub. L. No. 92-255, 86 Stat. 84 (Mar. 21, 1972) (21 U.S.C. 1180(a)), of the Drug Abuse Office and Treatment Act of 1972, the Office of Personnel Management is responsible for developing and maintaining, in cooperation with other Federal agencies, appropriate prevention, treatment, and rehabilitation programs and services for drug abusers among Federal employees. The Office of Personnel Management is authorized to develop and issue policy and program guidance governing these agency drug programs. Pursuant to this authority, OPM issued subchapter S6-3, establishing a policy which precludes agencies from paying the costs of employee participation in drug treatment and rehabilitation programs. Subchapter S6-3 has been held to bar employee claims for reimbursement of such costs. See Comp. Gen. B-198804 (Dec. 31, 1980) (unpublished). We conclude, therefore, that it is a "binding declaration of official policy" which constitutes a "regulation" within the meaning of section 7117(a)(1) of the Statute. See National Federation of Federal Employees, Local 1497 and Department of the Air Force, Lowry Air Force Base, Colo., 9 FLRA 151 (1982) (Proposal 1). Because the disputed portion of Proposal 3 is inconsistent with a Government-wide regulation within the meaning of section 7117(a)(1), we find that it is outside the duty to bargain. In light of our conclusion, it is not necessary to decide whether Proposal 3 is barred from negotiation by an Agency regulation for which a compelling need exists. VI. Order The Agency must upon request, or as otherwise agreed to by the parties, bargain on Proposal 2. 2 The petition for review as to Proposals 1 and 3 is dismissed. Issued, Washington, D.C., February 10, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 Three additional proposals, also concerning Agency drug testing, were withdrawn by the Union. See Union Response to Agency Statement of Position at 1-2. Those proposals will not be considered in this decision. Footnote 2 In finding that Proposal 2 is within the duty to bargain, we make no judgment as to its merits.