[ v31 p95 ]
The decision of the Authority follows:
31 FLRA NO. 15 31 FLRA 95 16 FEB 1988 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF PRISON LOCALS, LOCAL 1661 Union and U.S. DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF PRISONS, FEDERAL CORRECTIONAL INSTITUTION, DANBURY, CONNECTICUT Agency Case No. 0-NG-1331 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)(E) of the Federal Service Labor - Management Relations Statute (the Statute). It concerns the negotiability of one proposal, Proposal 43, which was severed by the Authority from the other proposals which were decided in American Federation of Government Employees, AFL - CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990 (1987). In an Order dated August 6, 1987, the Authority required the parties to clarify their positions in light of developments such as the issuance of Executive Order 12564 and other matters concerning drug testing. The Order required the parties to notify the Authority as to whether they wished to pursue the issues raised in the petition for review as to Proposal 43. The Order further permitted the parties to file supplemental briefs. The Union elected to pursue the dispute as to Proposal 43 but did not supplement its position as to that proposal. The Agency did not withdraw its allegation of nonnegotiability as to the proposal and filed a supplemental statement of position. Proposal 43 would require the Agency, when it orders an employee to undergo a drug test, to: (1) inform the employee of the exact drug or class of drugs for which he or she is being tested; (2) allow up to 4 hours of administrative leave to permit the employee to have a specimen collected for processing; and (3) permit, at the election of the Agency, a supervisor and a representative of the Union to accompany the employee to the collection site and verify collection of the specimen. We find that Proposal 43 is a negotiable procedure within the meaning of section 7106(b)(2). The proposal does not interfere with management's right to determine its internal security practices under section 7106(a)(1). II. Background 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 outlined in detail certain events which have direct relevance to drug testing programs in the Executive Branch of the Federal Government. We addressed: (1) the issuance of Executive Order 12564, entitled "Drug - Free Federal Workplace"; (2) the issuance of Federal Personnel Manual (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 (HHS), 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 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 agency drug testing programs. 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 Agency'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. We note, finally, that as of the date of this decision, the Department of Health and Human Services has not published final regulations in the Federal Register. III. Proposal 43 If an employee is required to submit a specimen for a drug test, they (sic) will be told exactly what drug(s) or class of drugs they are being tested for. The employer will allow up to 4 hours of administrative leave to allow the employee to have a specimen collected for processing. If the employer elects, a supervisor and a union representative will accompany the employee to the site for collection of the specimen and verify the collection. A. Positions of the Parties The Agency contends that Proposal 43 is nonnegotiable because it: (1) conflicts with Executive Order 12564 and with regulations issued by the Department of Health and Human Services which establish guidelines for agency drug testing programs; (2) interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute; (3) interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute; and (4) conflicts with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency asserts that the first sentence of the proposal is inconsistent with law and regulation because deterrence--the purpose of random drug testing--is defeated by a requirement to inform employees in advance of the exact drug or class of drugs for which he or she is being tested. According to the Agency, if it "were required to reveal that it was not going to random test for one or more . . . types of drugs it would send a message to employees currently abusing them (and those who might be tempted to abuse them) that such illegal activity would carry with it no increased risk of detection." Agency Supplemental Statement of Position at 4. The Agency also argues that the first sentence of the proposal interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute. According to the Agency, the first sentence has no legitimate purpose and merely represents a procedural obstacle if an adverse action is taken against an employee based on drug test results. The proposal provides an opportunity for the Union to frustrate a disciplinary action by using the notice requirement as the basis of a claim of "harmful error." Id. at 7-8. The Agency claims that the second and third sentences of the proposal are contrary to Executive Order 12564 and HHS regulations and that they interfere with management's right to determine its internal security practices under section 7106(a)(1). The Agency claims that the second and third sentences "envision an agency sanctioned private specimen collection process." Id. at 8. According to the Agency, the Executive Order and HHS regulations provide only for samples that are collected at an approved Government collection site by authorized personnel. Id. at 9. Further, the Agency argues that the proposal is neither a negotiable procedure under section 7106(b)(2) nor an appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts that random drug testing is contrary to the Fourth Amendment of the United States Constitution. Further, the Union disputes the Agency's contentions that the proposal violates management's rights to discipline or remove employees under section 7106(a)(2)(A). The Union contends that the proposal is either a negotiable procedure under section 7106(b)(2) or a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. B. Discussion The first sentence of the proposal would require the Agency to inform the employee of the exact drug or class of drugs for which he or she is being tested prior to the submission by that employee of a specimen for drug testing. The Agency does not demonstrate in what manner this portion of the proposal is inconsistent with any law, rule, or regulation. The first sentence requires only that the Agency notify the employee in advance of the exact nature of the drug test. It does not require the employer to inform the employee at any particular time. Nothing in the proposal would prevent, for example, the Agency from informing an employee that he or she is being tested for a particular type of drug at the same time that that employee is ordered to take the test. The Agency's concerns about the effect of the notice requirement are speculative. Informing employees of the drugs for which they are being tested does not preclude the Agency from testing for other drugs at other times, and informing them at the time of the test provides them no opportunity to clear their systems of drugs they might have used in the immediate past. In short, the proposal does not interfere with the Agency's purposes for adopting a drug testing plan so as to conflict with management's rights under section 7106(a)(1), and, even assuming that the Executive Order and the HHS guidelines were intended to have a deterrent effect, the first sentence would not conflict with the achievement of that purpose. Contrary to the Agency's position, moreover, the first sentence of the proposal would not affect management's right to discipline employees under section 7106(a)(2)(A). It concerns management's actions leading up to the imposition of the test, not the actions which management can take based upon the results of the test. The Agency's concern about the possible use of the notice requirement to argue "harmful error" in a subsequent disciplinary proceeding is unfounded. The Agency's position would mean that any negotiable procedure under section 7106(b)(2) of the Statute could potentially be used in that manner and this conclusion would render section 7106(b)(2) meaningless. The Agency provides no basis to support a finding that the first sentence of the proposal directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The second sentence of Proposal 43 would require the Agency, when it orders an employee to undergo a urine test, to give the employee being tested up to 4 hours of administrative leave in order to have a specimen collected. The Agency interprets this portion of the proposal as allowing an employee up to 4 hours of administrative leave to have a specimen taken by the employee's own doctor or a doctor of the Union's choosing. Id. at 8. Contrary to the Agency's argument, however, there is nothing in the wording of this portion of the proposal or in the proposal as a whole to indicate that the Union intends the grant of administrative leave to apply if an employee decides to have an additional specimen taken by either the employee's doctor or a doctor chosen by the Union. The proposal applies only to the test specimen which is required by the Agency, not an additional specimen taken at the option of the employee. Because it concerns the test required by the Agency, providing administrative leave does not interfere with management's right to assign work. The absence from assigned duties is at management's direction. Moreover, this portion of the proposal does not require that a specimen be collected at any particular place. Nothing in the proposal or the record indicates that the Agency is bound to grant an employee the full 4 hours of leave. The Agency does not demonstrate that this portion of the proposal is inconsistent with any law, rule or regulation so as to render it nonnegotiable under the Statute. Finally, the last sentence of the proposal gives the Agency the option to allow a supervisor and a Union representative to accompany an employee being tested to the collection site in order to verify that the specimen was collected. By its plain wording and consistent with the Union's intent, the proposal does not require the Agency to allow a supervisor and a Union representative to accompany the employee. The Agency can choose to exercise or not exercise the option. Therefore, contrary to the Agency, this portion of the proposal does not interfere with the Agency's right to direct employees or assign work under section 7106(a)(2)(A) and (B) of the Statute. Proposal 43 does not place any limitations on the Agency's ability to conduct the drug testing of its employees. The proposal simply establishes procedures which the Agency must follow in exercising its right under section 7106(a)(1) of the Statute to require that employees submit to drug testing. We find, therefore, that Proposal 43 constitutes a negotiable procedure within the meaning of section 7106(b)(2) of the Statute and is within the Agency's duty to bargain. IV. Order The Agency must upon request, or as otherwise agreed to by the parties, bargain on Proposal 43. 1 Issued, Washington, D.C., February 16, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 In finding that Proposal 43 is within the duty to bargain, we make no judgment as to its merits.