U.S. Federal Labor Relations Authority

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39:1532(134)NG - - NTEU, and Treasury, IRS, Washington, DC - - 1991 FLRAdec NG - - v39 p1532

[ v39 p1532 ]
The decision of the Authority follows:

39 FLRA No. 134












March 28, 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). The case concerns the negotiability of two provisions of the parties' "Drug-Free Workplace Program Agreement," which were disapproved by the Department of the Treasury during agency head review under section 7114(c) of the Statute.(1) For the following reasons we find that both disputed provisions are negotiable.

II. Provisions 1 and 2

Provision 1

Article 1, Section B

The Service will provide chapter officials and stewards more comprehensive training and education on the Drug Free Workplace Program and on the Employee Assistance Program. This training will take place on official time.

Provision 2

Article 1, Section C

Representatives of both parties at the local level will arrange for joint briefings, to be conducted on official time, for all employees regarding the specific terms of the agreement. The date, time and location of the briefing will be communicated to employees in writing. Employees will be provided an opportunity to ask questions during this joint briefing.

A. Positions of the Parties

1. The Agency

The Agency asserts that both provisions are nonnegotiable because "[a]n assignment of training is an assignment of work." Statement of Position at 2, 3. The Agency argues, in this regard, that "provisions requiring management to assign employees to specific types of training programs are nonnegotiable." Id. at 2.

With regard to Provision 1, the Agency concedes that Executive Order 12564 (the Executive Order) and Federal Personnel Manual (FPM) Letter 792-16 (2) require that employees receive training in drug testing and employee assistance. However, the Agency contends that both the Executive Order and the FPM Letter provide management with discretion as to the amount and type of training to be furnished. The Agency asserts that, because Provision 1 mandates "more comprehensive training" for Union officials and stewards, "it would establish a standard which management would have to meet or have to justify any deviation from. Thus, it deprives management of its discretion." Id.

2. The Union

The Union asserts that Provisions 1 and 2 are consistent with the Executive Order and FPM Letter 792-16 and, because they provide the Agency with discretion to decide how much and what type of training to provide, they do not directly interfere with the Agency's right to assign work. The Union denies that the requirement in Provision 1 to provide "more comprehensive" training and education to Union officials and stewards affects the Agency's discretion concerning how much and what type of training will be provided. The Union contends that the briefings required by Provision 2, "to the extent that such briefings may be determined to be training, . . . must be considered training concerning the terms of the [A]gency's Drug Free Workplace program." Id. at 5. The Union asserts that the provisions do "not involve training which relates to the assignment of bargaining unit work." Reply Brief at 3. In the Union's view, the training required by the provisions "is a labor-management relations issue." Id.

The Union also argues that Provisions 1 and 2 constitute negotiable appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. The Union asserts that failure to provide training concerning drug testing and employee assistance programs could adversely affect employees because "[f]ailure to understand the possible implications of illegal drug use on one's personal health and on one's continued federal employment may subject an employee to a variety of disciplinary or adverse actions including termination." Id. at 4. The Union asserts that "the benefits of providing such training and of providing more comprehensive training to [Union] officials and stewards far outweighs any possible negative impact on the [A]gency's right to assign work." Id.

B. Analysis and Conclusions

We conclude that the provisions do not directly interfere with the Agency's right to assign work.

In American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA No. 45 (1991) (Defense Mapping Agency), the first two sentences of Proposal 2 required that the agency provide "classes" for all unit employees subject to drug testing explaining various aspects of the program. Like the Agency in this case, the agency in Defense Mapping Agency argued that the disputed proposal directly interfered with the right to assign work because it required the agency to train employees.

In Defense Mapping Agency, we noted that most previous Authority decisions involving "training" had addressed "proposals requiring an agency to provide, or seek[ing] to limit or preclude the agency from providing, employees with instruction on how to perform various duties and responsibilities." Slip op. at 4. We noted other Authority decisions holding that "proposals requiring only that an agency provide employees with information, or notify employees of various actions, do not directly interfere with management's rights and are negotiable as long as the proposals concern conditions of employment and do not require the release of information which otherwise is protected." Id. at 5.

In Defense Mapping Agency, we found that "matters relating to an agency's drug testing program unquestionably concern conditions of employment." Id. at 6-7. Further, we found no basis on which to conclude that "management's rights under section 7106 of the Statute include the right to determine the form in which information, which is otherwise disclosable and negotiable, is to be conveyed to employees." Id. at 7. Noting that the disputed sentences did not encompass instruction on employees' duties and responsibilities, we concluded that "the requirement that the information be conveyed in classes does not otherwise mandate a conclusion that the proposal directly interferes with [an agency's] right to assign work." Id. at 8.

Provisions 1 and 2 concern matters relating to the Agency's drug testing program: Provision 1 requires training of Union officials concerning the Agency's drug testing and related employee assistance programs; and Provision 2 prescribes briefings for all employees about the terms of the parties' negotiated agreement implementing the Agency's drug testing program. The two provisions, therefore, clearly concern conditions of employment. Moreover, like the disputed sentences in Defense Mapping Agency, there is no indication in the record that the provisions are intended to encompass instruction to employees on facets of their duties and responsibilities. It is undisputed, in this regard, that the provisions "[do] not involve training which relates to the assignment of bargaining unit work." Reply Brief at 3. In addition, it is clear from the record that, although the provisions refer to "training," and "education," and "briefings," the provisions require only that information be conveyed. See Reply Brief at 4 ("[A] federal government agency has an obligation to inform its employees concerning the details of its Drug Free Workplace program. Chapter officials and stewards . . . must receive 'more comprehensive' training concerning the terms of the program and its ramifications for bargaining unit employees."). Finally, nothing in the record before us supports a conclusion that the provisions would require the disclosure of information in violation of applicable law or regulation.

Based on the foregoing, and consistent with Defense Mapping Agency, we conclude that Provisions 1 and 2 do not directly interfere with the Agency's right to assign work. As no other basis for finding the provisions nonnegotiable is asserted or apparent to us, the provisions are negotiable. In view of our conclusion, we do not address whether, or to what extent, the provisions' references to "official time" would, in other circumstances, affect our decision. Additionally, in light of our conclusion, we need not address the extent to which all proposals relating to training, that is, instruction of employees in any facet of their duties and responsibilities, directly interfere with the right of an agency to assign work.

III. Order

The Agency head shall rescind the disapproval of Provisions 1 and 2, which were bargained over and agreed to by the parties at the local level.(3)

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

1. As originally submitted, the Union's petition sought review of eight provisions of the negotiated agreement. In its statement of position, the Agency withdrew its disapproval of five provisions: sections 2, 6, 7, 8, and 10 of the agreement's Preamble. Statement of Position at 1. The Union, in its reply brief, withdrew its petition for review concerning Article 4, Section B. Reply Brief at 2. Accordingly, those provisions will not be considered here.

2. FPM Letter 792-16, referred to by the parties, was superseded by FPM Letter 792-19, dated December 27, 1989. As the new issuance contained no substantive changes bearing on this dispute, in all instances where the parties cite the prior FPM Letter, we will apply FPM Letter 792-19.

3. In finding Provisions 1 and 2 to be negotiable, we make no judgment as to their merits.