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U.S. Federal Labor Relations Authority

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39:1276(111)NG - - AFGE Local 3457 and DOI, Minerals Management Service, New Orleans, LA - - 1991 FLRAdec NG - - v39 p1276

[ v39 p1276 ]
The decision of the Authority follows:

39 FLRA No. 111





LOCAL 3457









March 18, 1991

Before Chairman McKee and Members Talkin and Armendariz.

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) and concerns the negotiability of one proposal regarding the implementation of the Agency's drug testing program.(1)

II. Proposal

Section 1. General

The employer agrees that the establishment and administration of its drug abuse testing program will be done in strict compliance with the U.S. Constitution and all applicable laws, rules and regulations and this agreement.

III. Positions of the Parties

A. Agency

The Agency contends that the proposal is nonnegotiable because it is inconsistent with Executive Order 12564 and interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

Specifically, the Agency asserts that inasmuch as the term "drug abuse" as used in the proposal could be construed to mean that the program may only test employees for an "abuse" of illegal drugs but not for any usage that may not be considered an abuse, the proposal is inconsistent with section 1 of Executive Order 12564, which requires that employees refrain from "the use of illegal drugs." The Agency argues that, as the Authority has held that Executive Order 12564 constitutes "law" under section 7117(a)(1) of the Statute, the proposal is nonnegotiable under that section because the use of the term "drug abuse" in the proposal is inconsistent with law. The Agency further argues that because the proposal requires "strict" compliance with laws, rules and regulations, it is inconsistent with the sole and exclusive discretion expressly delegated by the Executive Order to the head of each agency.

The Agency also argues that the proposal interferes with the Agency's right to determine its internal security practices. As the drug testing program is one way to protect the internal security of the Agency, the Agency argues that the proposal, which requires "strict" compliance with laws, rules and regulations, interferes with management's discretion to establish standards for determining how it will comply with applicable law, rule and regulation in establishing and administering the drug testing program. It contends that the proposal does not qualify as an appropriate arrangement under section 7106(b)(3) of the Statute because the Union only made a blanket allegation that the proposal constitutes an appropriate arrangement and did not provide any facts to support its contention.

B. Union

The Union asserts that the proposal is intended to incorporate the already existing standards required by law, rule and regulation. It contends, contrary to the arguments of the Agency, that the term "drug abuse" is intended to apply to all illegal drug use. The Union further argues, citing National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980), that the Authority has held that proposals which would require an agency to adhere to law are within the duty to bargain, and that the fact that the proposal requires "strict" compliance with law and regulation should make no difference. In its supplemental brief, the Union contends that although the Authority has stated that it will assume the validity of an agency's drug testing program, such a course does not preclude consideration of the Union's arguments concerning the negotiability of a proposal where that proposal requires agency actions to be consistent with law, rule and regulation.

IV. Analysis and Conclusions

In American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068 (1990) (Proposal 1) (Department of Education), decision on reconsideration, 39 FLRA No. 107 (1991), we found a proposal identical to the one at issue here to be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Id., slip op. at 7-11. For the reasons discussed at length in those decisions, we find this proposal to be within the duty to bargain.

We recognize that the Union has not specifically raised an argument in this case that the proposal is intended as an appropriate arrangement. Nonetheless, we conclude that our statutory obligations require that we apply the determination reached in Department of Education to this case. To do otherwise would lead to anomalous and conflicting results on identical proposals. See, for example, Merit Systems Protection Board Professional Association and Merit Systems Protection Board, 31 FLRA 258, 264 (1988), rev'd on other grounds, 913 F.2d 976 (D.C. Cir. 1990), decision on remand, 38 FLRA 354 (1990).

V. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on the proposal.(2)

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

1. The Union's original appeal involved 3 proposals. The Union has withdrawn Proposals 2 and 3 and that portion of the remaining proposal that requires strict compliance with the U.S. Constitution. Supplemental Brief at 4-5. Therefore, we will not address the negotiability of that portion of Proposal 1 and Proposals 2 and 3.

2. In finding the proposal to be negotiable, we make no judgment as to its merits.