[ v37 p1439 ]
37:1439(116)NG
The decision of the Authority follows:
37 FLRA No. 116
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1808
(Union)
and
U.S. DEPARTMENT OF THE ARMY
SIERRA ARMY DEPOT
HERLONG, CALIFORNIA
(Agency)
0-NG-1617
DECISION AND ORDER ON NEGOTIABILITY ISSUES
October 31 1990
Before Chairman McKee and Members Talkin and Armendariz.(*)
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The Agency and the Union reached an agreement concerning implementation of the Agency's Civilian Drug Abuse Testing Program. This dispute concerns the negotiability of four provisions of the negotiated agreement which were disapproved in the course of review under section 7114(c) of the Statute by the head of the Agency.
Provisions 1, 2 and 3 concern various subparagraphs of section 3 of the parties' agreement. Provision 1 provides that when an employee is required to be tested for drug abuse, the employee will be notified, 2 hours prior to each required test, of certain specified matters concerning the test. Provision 2 concerns the frequency or intervals at which employees will be tested. Provision 3 states that 2 hours prior to each required test, the employee will be informed of the location of drug abuse counseling and referral services to which the employee "can voluntarily submit prior to testing without reprisal." We find that Provisions 1, 2, and 3 are nonnegotiable because they directly interfere with management's right under section 7106(a)(1) of the Statute to determine its internal security practices.
Provision 4 concerns section 4.c of the parties' agreement. Provision 4 provides that if an employee being tested is not able to provide a sufficient volume of urine, the employee may return the next day to complete the specimen. We find that the provision is inconsistent with the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS), 53 Fed. Reg. 11979-89 (1988) (final Guidelines), which are Government-wide regulations. Therefore, the provision is nonnegotiable under section 7117(a)(1) of the Statute.
II. Provisions 1, 2, and 3
Section 3. Notification to Employees
[Provision 1] In the event drug testing is required, two hours prior to each test, the employer shall inform the concerned employee(s), in detail, and in writing, of each of the following:
[Provision 2] d. The frequency of intervals [at] which they will be tested.
[Provision 3] g. The location of drug abuse counseling and referral services available through the Employees Assistance Program to which he/she can voluntarily submit prior to testing without reprisal.
A. Positions of the Parties
1. The Agency
The Agency contends that Provisions 1 (requiring the Agency to give employees 2 hours' notice prior to testing), 2 (requiring notice as to the frequency of intervals of testing), and 3 (requiring notice as to drug abuse counseling and referral services), are nonnegotiable. The Agency argues that these provisions conflict with: (1) management's right under section 7106(a)(1) of the Statute to determine its internal security practices, (2) Executive Order 12564, and (3) the final Guidelines. The Agency claims that the provisions would not permit the immediate testing of employees (such as post-accident testing) or the collection of a second sample, consistent with section 2.2(b)(16) of the final Guidelines, if there is reason to believe that the employee tampered with the first sample. Agency's Statement of Position at 2-5; Agency's Supplemental Statement of Position at 5. The Agency claims that the provisions' requirement of 2-hour prior notice "conflicts with the [A]gency's right to conduct unannounced testing." Agency's Statement of Position at 3. The Agency argues that "no one can say with any certainty how much time [an agency] can afford to give as advance notice and still be assured that the test will be effective." Id. The Agency contends that a "two hour prior notice (or a four hour, or any amount of time) . . . , conflicts with the Army's system of unannounced testing." (emphasis in original) Id.
The Agency contends that the meaning of Provision 3 is unclear. The Agency argues that if Provision 3 means that certain personnel actions cannot be taken as a result of refusing to submit to the drug test, the provision interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency also contends that Provision 3 could be read to totally preclude the Agency from testing an employee, if the employee seeks counseling. The employee would, therefore, avoid being tested on the day randomly selected for the testing. The Agency also states that it is unclear regarding what the phrase "volunteers for testing" means. The Agency claims that the Union has not clarified the intent of the provision. Agency's Statement of Position at 5-7.
The Agency stated that it no longer conducts field tests as part of its drug testing program. Agency's Supplemental Response.
2. The Union
The Union contends that the 2-hour notice requirement found at the beginning of the provisions does not interfere with the Agency's drug testing program or its internal security practices. The Union states that "the notification would be for the purpose of allowing the employee to psychologically prepare for the extreme intrusiveness of a urine sampling." Union's Response to Agency's Statement of Position at 4 (Union's Response). The Union argues that the 2 hours would in no way defeat the test itself. Id. With respect to Provision 2, the Union states that the exact timing of the tests need not be revealed, but that a general reference to "monthly, quarterly, yearly would satisfy the [provision's] requirements." Id.
The Union argues that Provisions 1 and 2 would not defeat the purpose of the drug testing. The Union asserts that traces of drugs can be found in one's system for given periods and, contrary to the Agency's contentions, 2 hours would have no "fatal" effect on the testing. Id. at 6-7. The Union argues that the issue in this case "is whether a specific act, as opposed to a programmatic implementation, can be delayed for a period of time which will have no significant effect on either the exercise of the right or its outcome." Id. at 8.
As to Provision 3, the Union states that it is intended to apply both to voluntary testing as well as to directed testing. Id. at 13. The Union asserts that Provision 3 is intended to ensure "that employees will be given information about the employer's Employees Assistance Program." Id. at 14. The Union argues that nothing in the provision would negate urinalysis testing. The Union contends that the provision "does no more than require the [A]gency to inform affected employees of the existence of the employer's program, and adds to the specificity of such notice the location and other relevant and non-confidential information, the [provision] supplements the employer's own program and is not inconsistent with it." Id. at 15.
The Union does not claim that Provisions 1, 2 and 3 constitute appropriate arrangements.
B. Analysis and Conclusions
Provisions 1, 2 and 3 require that the Agency notify an employee 2 hours prior to a drug test that he or she will be tested for illegal drug use. For the reasons stated below, we find that the provisions are nonnegotiable.
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 1046 (1988) (Rock Island I), remanded as to other matters sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988) (order), decision on remand, 33 FLRA 436 (1988) (Rock Island II), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground), decision on remand, 35 FLRA 936 (1990) (Rock Island III), the Authority held that the agency's drug testing program for employees in sensitive positions constituted an exercise of its right under section 7106(a)(1) to determine its internal security practices because the program, which included a "provision for unannounced random tests, . . . concerns the policies and actions which are a part of the [a]gency's plan to secure or safeguard its physical property against internal and external risks, to prevent improper or unauthorized disclosure of information, or to prevent disruption of the [a]gency's activities." Rock Island I, 30 FLRA at 1056. The agency explained that "[u]nannounced random testing has a deterrent effect on drug users and makes it difficult for drug users to take action to cover up their use or otherwise evade the tests." Id. In Rock Island I the Authority held that the agency's use of random testing as a part of its drug testing program constituted an exercise of management's right to determine its internal security practices. Id.
Having concluded that there was a connection or "link" between the agency's decision to use random tests and the agency's security concerns relating to employees in sensitive positions, the Authority stated that it would not review the merits of the agency's decision. Id. In other words, the Authority's inquiry ended with its conclusion that the agency's use of random testing for employees in sensitive positions was within the scope of the exercise of management's right to determine its internal security practices under section 7106(a)(1).
Provisions 1, 2 and 3 in this case require that an employee be notified 2 hours in advance that he or she will be tested for illegal drug use. We must determine whether these provisions directly interfere with management's right under section 7106(a)(1) to conduct random testing. The Agency states that "[w]ith unannounced, no-notice testing, we can maintain the right to determine what the internal security practice is--without compromise." Agency's Statement of Position at 3. In our view, the Agency has established a link between its drug testing program and its internal security concerns. Accordingly, inasmuch as the Agency has established a link we will not review the merits of the Agency's decision.
We find that the provisions would impermissibly interfere with the Agency's ability, under its drug testing program, to conduct unannounced random drug tests of employees in sensitive positions. Because Provisions 1, 2 and 3 require 2 hours' advance notice to employees of the fact that they will be required to undergo a random drug test, the effect of the provisions is to limit the Agency's right to conduct its tests. By thus limiting management's decision to use random testing, Provisions 1, 2 and 3 directly interfere with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. See id. at 1056-57.
We note, in addition, that it is irrelevant whether the form of notice or the information contained in the provisions is consistent with law, rule and regulation. Because the information is required to be provided to employees when they are given advance notification that they are to undergo a drug test, the provisions are contrary to the Agency's right to determine its internal security practices by implementing a random drug testing program. Compare American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 31 FLRA 95, 98 (1988) (first sentence of Proposal 43, requiring the agency to inform an employee of the exact drug or class of drugs for which the employee is to be tested prior to the submission of a urine sample by the employee, but not requiring that the employee be informed at any particular time, did not conflict with management's rights).
Because we have found that the provisions directly interfere with management's right under section 7106(a)(1) of the Statute to determine its internal security practices and that they are, therefore, nonnegotiable, we need not address the additional arguments raised by the Agency regarding specific provisions.
Finally, in our view, the Union has not made an argument that Provisions 1, 2 and 3 constitute "appropriate arrangements" within the meaning of section 7106(b)(3) of the Statute. We do not require a party to use specific phrases, or terms of art, in order to raise a claim that a proposal should be found to be negotiable as an "appropriate arrangement" under section 7106(b)(3) of the Statute. However, 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), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril. Moreover, the means and analytical framework used to bring "appropriate arrangement" arguments to the Authority are well-known. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). In this case, we concluded that no "appropriate arrangements" argument was raised and, therefore, we do not consider whether Provisions 1, 2 and 3 constitute appropriate arrangements under section 7106(b)(3) of the Statute. See National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, Department of Military Affairs, Illinois National Guard, Springfield, Illinois, 36 FLRA 75, 80-81 (1990).
III. Provision 4
Section 4. Methods and Procedures for Testing
c. If sufficient volume of urine is not able to be provided on the appointed day, the selectee may return on the next day.
A. Positions of the Parties
1. The Agency
The Agency contends that Provision 4 is inconsistent with the final Guidelines and conflicts with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Agency's Statement of Position at 7.
The Agency acknowledges that the Authority considered a similar proposal to be negotiable, prior to issuance of the final Guidelines, but distinguishes Provision 4 based on the final Guidelines. The Agency points to section 2.2(f)(10) of the final Guidelines which addresses collection of the urine samples, when an employee is unable to provide at least 60 milliliters of urine. The final Guidelines contain instructions which the collection site person is to follow in that circumstance. The Agency argues that Provision 4 is inconsistent with the instructions in the final Guidelines. Id. at 7-8.
The Agency also contends that Provision 4 directly interferes with its internal security practices under section 7106(a)(1) of the Statute. The Agency states that under its compressed workweek, which does not include Friday for most employees, employees could evade detection of drugs in their systems by being unable to produce a sample of sufficient size, and using the long weekend to cleanse their system prior to being tested on the following Monday. Id. at 11.
2. The Union
The Union contends that Provision 4 is like a proposal found to be negotiable in National Treasury Employees Union and U.S. Customs Service, 31 FLRA 118, 123 (1988). The Union acknowledges that the decision in that case was issued prior to publication of the final Guidelines, but argues that the Authority's decision in Customs Service "clearly settled this issue." Union's Response at 17. The Union asserts that "[t]here is not enough specificity to show any inconsistency between the instant proposal and the vague guideline." Id. at 18. As to the instructions in the final Guidelines referenced by the Agency, the Union states that to the extent "there might be some other alternative, such as forced fluids given to the employee while managers await the blessed event[,] [e]ven if this absurdity were the case, the [provision] would not necessarily stop it since its [sic] simply does not anticipate or treat the matter." Id.
The Union contends that Provision 4 does not interfere with the Agency's internal security practices. The Union asserts that the provision does not prevent the Agency from testing and does not prescribe the tests that will be used; the Union argues that Provision 4 merely establishes steps that will be followed in the circumstances where an employee is unable to provide a sufficient sample.
B. Analysis and Conclusion
Provision 4 allows an employee who is being tested for illegal drug use and who cannot provide a sample of sufficient volume to return the next day for testing. We find that the provision is inconsistent with the final Guidelines. Because Provision 4 is inconsistent with the final Guidelines, which are Government-wide regulations, Provision 4 is nonnegotiable under section 7117(a)(1) of the Statute.
The final Guidelines are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. Aberdeen Proving Ground, 890 F.2d at 469-70; Rock Island II, 33 FLRA at 438-39. The final Guidelines provide instructions to the collection site person in the event that an employee sent for drug testing cannot provide a sample of sufficient size, 60 milliliters. The final Guidelines provide that the employee being tested "may be given a reasonable amount of liquid to drink for this purpose (e.g., a glass of water)." See section 2.2(f)(10) of the final Guidelines, 53 Fed. Reg. 11981. If the employee being tested still fails to provide a sample of at least 60 milliliters, the collection site person is to contact the appropriate authority for guidance. Id.
Provision 4 simply states that if the employee is unable to provide a sample of sufficient volume, the employee is to return the next day. By providing that the employee is to leave and return the next day, Provision 4 is inconsistent with the final Guidelines which provide that the employee may be given liquid to drink, and that the collection site person is to contact the appropriate authority for guidance. Provision 4 does not allow for compliance with the instructions in the final Guidelines. Because Provision 4 provides alternate procedures for an employee who is unable to produce a sample of sufficient volume, it is inconsistent with the final Guidelines. Because Provision 4 is inconsistent with section 2.2(f)(10) of the final Guidelines, it is nonnegotiable under section 7117(a)(1) of the Statute.
Because Provision 4 is inconsistent with a Government-wide regulation and is nonnegotiable under section 7117(a)(1) of the Statute, we need not consider the other arguments raised by the parties. In future cases involving proposals or provisions like Provision 4, we will follow this decision, rather than the Authority's decision in Customs Service, which was decided prior to the publication of the final Guidelines.
IV. Order
The petition for review is dismissed.
Opinion of Member Talkin, Dissenting in Part
I disagree with the basis on which my colleagues decide the negotiability of Provisions 1, 2, and 3. In particular, I disagree with my colleagues' apparent conclusion that management's right to determine internal security practices encompasses, in all instances, the right to determine how much notice is given to employees when they are selected to undergo a drug test conducted pursuant to section 3(a) of Executive Order 12564, which authorizes random testing of employees in sensitive positions.
At the outset, I make clear my agreement that the decision to conduct drug testing authorized by section 3(a) of the Executive Order is an exercise of management's right to determine the internal security practices of an agency under section 7106(a) of the Statute. As stressed by the preamble of the Executive Order, the Federal drug testing program is largely for the purpose of protecting agencies from the effects and consequences of drug abuse. It follows that the institution of a random drug testing program in conformity with the Executive Order constitutes a policy or action that is part of an agency's plan to secure or safeguard its physical property and personnel against internal and external risks, to prevent improper or unauthorized disclosure of information, or to prevent disruption of the agency's activities. 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, 1056 (1988) (Rock Island I), remanded as to other matters sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988)(order), decision on remand, 33 FLRA 436 (1988), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground), decision on remand, 35 FLRA 936 (1990). However, I believe that, insofar as Rock Island I and its progeny could be read to include within management's right to determine an agency's internal security practices all details of a random drug testing program, such as determinations of how much notice will be given employees selected for testing, those decisions go too far.
In many instances the question of notice and timing is a procedural one. See, for example, Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505, 1510-11 (D.C. Cir. 1989) ("nothing else appearing . . . timing in matters of discipline is procedural"). However, as has been frequently remarked, the line between procedure and substance in the context of the Statute is "blurry." For example, Aberdeen Proving Ground, 890 F.2d at 477. I believe that advance notice with respect to conducting random drug tests lies on one of these indistinct borders. In some instances notice of testing or other attendant events may cross the line and be found to interfere directly with management's right. In other instances a limited amount of notice is purely procedural and/or does not directly interfere with management's right and is, therefore, negotiable under the Statute.
I reach my conclusion here based on several considerations. First, although my colleagues, relying on Rock Island I, appear to emphasize the need for "unannounced" random drug tests, I believe that there is a distinction between the concepts of "unannounced" and "no notice," particularly as those concepts relate to drug testing generally and to employees individually. "Unannounced" connotes that an agency's schedule for drug testing has not been announced to employees and that the testing will be "random." It does not necessarily foreclose all notice to employees that they are being directed to undergo a random drug test. Clearly, at some point prior to the test itself, employees must be notified of their selection if for no other reason than to get them to the site of the drug test. While I agree that in certain circumstances, announcing testing schedules to subject employees might frustrate the purpose of random drug testing and, consequently, directly interfere with the success of the program, I do not agree that the same relationship exists with respect to notifying employees that they have been selected to undergo a test shortly in advance of the test itself. A short period of notice would not provide employees who are in fact abusing drugs with the type of knowledge that would enable them to "schedule" their drug use in such a manner as to evade detection by the tests. Moreover, a two-hour notice period would not preclude the Agency, if necessary, from monitoring employees for purposes of detecting and preventing efforts to mask drug abuse.
Based on my reading of the Medical Review Officer Manual (MRO Manual) it appears that different drugs are detectable within the system for differing amounts of time and that for most drugs there is not a uniform, precise point after ingestion at which the drug is no longer detectable. For example, the MRO Manual states that "about" 20 percent of a single dose of marijuana can be recovered from urine "within about 5 days" and that a person with no marijuana experience who smokes a single marijuana cigarette "may be positive for 1-3 days." MRO Manual at 16. The major metabolite of cocaine, benzoylecgonine, "usually is detected for 2-3 days after a single dose." Id. at 17. See also, National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384, 1396 (1989) (NTEU v. Von Raab). ("A particular employee's pattern of elimination for a given drug cannot be predicted with perfect accuracy, and, in any event, this information is not likely to be known or available to the employee. . . . [N]o employee reasonably can expect to deceive the test by the simple expedient of abstaining after the test date is assigned.") A short period of notice offers minimal likelihood that drugs and/or their metabolites will have been eliminated from the system during the period between notice and testing and no assurance to an employee that such will occur.(2) Indeed, the Office of Personnel Management implicitly recognizes the proposition that notice does not necessarily undermine the effectiveness of drug testing: I point to the portion of FPM Letter 792-19 that relates to drug testing of applicants and provides that urine specimens should be taken no more than forty-eight hours after an applicant is contacted to set up drug testing. FPM Letter 792-19 3.f.(2). Additionally, the fact that the testing program that was the subject of NTEU v. Von Raab allowed for five days notification of the test date did not convince the Court that the program was ineffective. NTEU v. Von Raab, 109 S. Ct. at 1388, 1390 and 1396.(2)
I believe that there is a constructive and legitimate purpose to affording employees a reasonable amount of notice prior to a drug test consistent with and in furtherance of the objectives and purposes of the Executive Order, HHS's final Guidelines and the Statute. For one thing, I find that allowing employees the opportunity, suggested by the Union, to "psychologically prepare" themselves for an intrusive process such as urinalysis is a valid consideration. Additionally, there are perfectly legitimate measures that an employee might reasonably want to take in preparation for undergoing a drug test. In particular, I note that there are several provisions relating to the "specimen collection procedures" in HHS's final Guidelines that either provide protection for employees and/or involve action by the employee being tested. Final Guidelines, section 2.2. For example, the final Guidelines require certain actions governing the "chain of custody" of specimens collected. Final Guidelines, section 2.2 (f)(17)-(22). The "chain of custody" requirements are, at least in part, for the purpose of ensuring reliable and accurate drug testing. See Pub. L. 100-71, Title V, § 503(a)(1)(A)(ii), codified at 5 U.S.C. § 7301; H.R. Rep. No. 100-195, 100th Cong. 1st Sess. 110-11 (1987). It follows that they are designed, at least in part, to protect employees against the consequences of inaccurate and unreliable drug testing. In my view, where procedures have been provided to protect employees or that require actions by the employees, employees should be fully knowledgeable about those procedures. A reasonable notice period immediately prior to actual testing affords employees an opportunity to review materials and information that may have been given them at an earlier time or to consult a knowledgeable person (for example, a union representative) concerning their rights and obligations in the specimen-collection process at a point when they are fully focused on the importance of those matters.(3)
Additionally, employees may wish to seek or review information relating to the wisdom and/or necessity of divulging particular information concerning their own medical history and the procedures that exist for making such divulgences. For example, an employee who has been abusing drugs may wish to seek advice and/or information concerning voluntary admission of drug use. See FPM Letter 792-19 4.b.(2).
Accordingly, I conclude that a two-hour notice to employees that they are to undergo a drug test pursuant to section 3(a) of Executive Order 12564 would not interfere with the Agency's ability to conduct reliable drug tests or otherwise be detrimental to its random drug testing program and does not directly interfere with the Agency's right to determine its internal security practices. Rather, such limited notice is a procedure negotiable under section 7106(b)(2) of the Statute. Compare American Federation of Government Employees, Department of Education Council of Locals and U.S. Department of Education, 36 FLRA 130 (1990) (Proposal 2 requiring that disciplinary actions be delayed until contractual review procedures are exhausted is negotiable as a procedure) and American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400, 403 (1987) (proposal requiring two days advance notice of overtime is a negotiable procedure under section 7106(b)(2)) and National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA 56, 59 (1986)(proposal requiring 15 days advance notice prior to the effective date of a suspension of 14 days or less is a negotiable procedure under section 7106(b)(2)) with National Federation of Federal Employees, Local 1263 and Defense Language Institute, Presidio of Monterey, California, 29 FLRA 61 (1987) (Proposal 1, requiring prior notification of classroom visits for the purpose of evaluating employees, would directly affect the type of appraisal record which management would be able to produce and, consequently, directly interferes with management's rights to direct employees and assign work).
I do not address the question of the point at which notice crosses the hazy line from negotiable procedure to interference with a management right except to note that that will almost certainly depend on the specific circumstances involved. Here, I find only that notice limited to two hours does not. Additionally, I do not address whether a two-hour notice requirement with respect to the categories of drug testing authorized under section 3(b), (c), and (d) of Executive Order 12564 would directly interfere with management's right to determine internal security practices. The Authority has yet to rule on the extent to which those other categories of drug testing may constitute an exercise of management's right to determine internal security practices. Because I am in the minority regarding the negotiability of such notice in the context of random drug testing of employees in sensitive positions, my views as to the other categories of drug testing would make no difference to the outcome of this case. Therefore, I limit my dissent here to the basis of the majority's decision concerning Provisions 1, 2, and 3--the issue of notice with respect to drug testing conducted pursuant to section 3(a) of the Executive Order.
Alternatively, even if a notice period limited to two hours were to be found to constitute a direct interference with the substantive aspects of the right to determine internal security practices, I would find that it constitutes an appropriate arrangement for employees adversely affected by the exercise of that right. Although the Union may not have used the terms of art typically associated with arguments that a proposal is negotiable under section 7106(b)(3), I believe that the question inheres in the Union's arguments. That is, the thrust of the Union's arguments is that the proposals benefit employees faced with an intrusion into their privacy and dignity as a consequence of management's exercise of its right to determine internal security practices. The Union further argues that the two-hour notice requirement would have no significant effect on the management right. The Agency, on the other hand, argues that the proposals would significantly affect and diminish that right. Given the nature of the parties' arguments, I view the issue of whether the proposal is negotiable under section 7106(b)(3) as legitimately before the Authority.
To me, there is no doubt that employees are adversely affected by being subjected to urinalysis for drug testing purposes. In this regard, the majority opinion in the Supreme Court's decision in NTEU v. Von Raab held that urine tests "invade reasonable expectations of privacy." 109 S. Ct. at 1390. As Justice Scalia stated in his dissent in that case: "I think it obvious that it is a type of search particularly destructive of privacy and offensive to personal dignity." Id. at 1398. See also Skinner v. Railway Labor Executives Ass'n, 109 S.Ct. 1402, 1413 (1989) quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987). ("There are few activities in our society more personal or private than the passing of urine. . . . It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.")
Exacerbating the intrusive nature of random urine testing is the fact that there is no evidence that illegal drug use occurs in anything more than a miniscule number of Federal employees. See, for example, NTEU v. Von Raab, 109 S. Ct. at 1399-1400 (Scalia, J., dissenting). Available statistics indicate that the vast majority of employees subjected to urinalysis drug testing are not using illegal drugs.(4) In addition to the effect that the specimen collection process itself has on employees, it is beyond question that employees will be adversely affected if their test should produce a "false" positive. In this regard, I note that recently a government-certified laboratory mistakenly reported methamphetamine use by "under 100" Federal or private sector employees who, in fact, had been using lawful over-the-counter medications. The Washington Post, October 25, 1990, at A3, col. 5-6. According to a former White House drug advisor "as many as 75 percent of urine samples that initially show traces of [methamphetamine] turn out to be false positives when strict confirmatory tests are performed." Id.
Given the level of intrusion into employee privacy and dignity and other predictable adverse effects on employees, I believe that providing employees with a limited period in which to prepare themselves, psychologically and otherwise, is of benefit to those employees. In this regard, I note that the majority opinion in NTEU v. Von Raab viewed the fact that "[e]mployees are . . . notified in advance of the scheduled sample collection . . . reduc[es] to a minimum any 'unsettling show of authority' . . . that may be associated with unexpected intrusions on privacy." 109 S. Ct. at 1394 n.2. Such notice was viewed by the majority as contributing significantly to diminishing "the program's intrusion on privacy." Id. at 1396 n.4. And, as I have discussed above, employees would also benefit from the opportunity to review or ascertain the procedures involved in the process so that they will be in a position to determine whether they are being afforded the rights and protections that are due them under governing authorities.
The only arguable interference with management's right to determine its internal security practices is the delay caused by the notice period. As I indicated earlier, I do not read the proposals as preventing the Agency from monitoring an employee during the notice period if the Agency feels that is necessary to ensure the integrity of the test. In my view, the two-hour notice requirement would neither undermine the Agency's ability to conduct random drug testing of employees in sensitive positions nor frustrate its purpose of detecting illegal drug use.
Moreover, although not dispositive, it appears that the vast majority of Federal employees are not using illegal drugs. For example, a recent General Accounting Office report, cited at note 4 above, revealed the following statistics. In one agency (Department of the Army, Depot System Command) slightly over 3,000 positions were subject to random testing. In 13,861 random drug tests done between May 1986 and September 1989, 110 employees tested positive for illegal drugs. In a second agency (Department of Transportation), in 20,414 random drug tests done between July 1988 and September 1989, 115 employees tested positive. In a third agency (Drug Enforcement Administration), in 1,222 random drug tests done between July 1988 and September 1989, five employees tested positive. Thus, any concern that notice of a scheduled test will allow attempts to evade a positive test result is largely unfounded in the overwhelming majority of cases.
In my estimation, the benefits to employees of a limited period of notice prior to undergoing a drug test authorized under section 3(a) of Executive Order 12564 outweigh the burden to the Agency.(5)
Consequently, I respectfully dissent from my colleagues' conclusion that Provisions 1, 2, and 3 are nonnegotiable based solely on the fact that they would require that two hours of advance notice be provided to employees undergoing a drug test authorized under section 3(a) of Executive Order 12564. I do not address the Agency's other arguments as to the negotiability of those three provisions because, under the circumstances, my opinion as to those arguments would make no difference in the disposition of those three proposals.
AUTHORITY FOOTNOTE:
(If blank, the decision
does not have footnotes.)
*/ Member Talkin's dissenting opinion as to Provisions 1, 2 and 3 is set forth at pages 10-17.
DISSENTING FOOTNOTES:
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1. Although I do not address the merits of conflicting claims concerning the existence of means by which drug abuse can be masked because such matters are not within my area of expertise, I do not rule out the possibility that such means may now or in the future be available. Nevertheless, as I have stated, the proposals do not preclude monitoring employees for the purpose of preventing efforts to evade detection of drug abuse.
2. Moreover, at least one Cabinet-level agency has established a testing program that allows for some advance notice. Documents in the record in American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 37 FLRA No. 117 (1990), issued today, establish that the Department of the Interior's drug testing program provides that employees selected for random drug testing shall be notified the same day the test is scheduled, preferably within two hours of the scheduled testing.
3. As Samuel Johnson commented, "[W]hen a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully."
4. See, for example, Drug Testing: Action by Certain Agencies When Employees Test Positive for Illegal Drugs, GAO/GGD-90-56FS, April 1990.
5. For the reasons stated earlier, I express no view as to the conclusion that I would reach concerning drug tests authorized under section 3(b), (c), and (d) of that Executive Order. Also, I express no view regarding proposals that establish longer periods of notice other than to note, as I did above, that the negotiability of such will likely be dependent on the circumstances involved.