[ v40 p354 ]
The decision of the Authority follows:
40 FLRA No. 35
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 case concerns the negotiability of a proposal requiring the Agency to postpone the implementation of its drug testing program until the Supreme Court has ruled on the constitutionality of drug testing programs in the Federal sector. For the following reasons, we dismiss the Union's petition for review.
It is agreed and understood that drug-testing for bargaining unit employees shall be held in abeyance until such time that the U.S. Supreme Court rules on the constitutionality of drug testing programs in the Federal sector.
III. Positions of the Parties
The Agency contends that the proposal would require it "to halt drug testing procedures pending disposition of the litigation of current court challenges, including appeals to the Supreme Court." Agency Statement of Position (Agency Statement) at 2-3. The Agency argues that the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute "because it would prevent the [Agency] from carrying out its drug testing program in accordance with [G]overnment policy and [A]gency regulation." Id. at 3.
The Agency cites American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45, 57-60 (1988) (Tooele Army Depot), wherein the Authority found to be nonnegotiable a proposal requiring that the agency postpone implementation of its drug testing program until all lawsuits filed by the union or by unit employees had been resolved. The Agency asserts that although the proposal in Tooele Army Depot postponed drug testing until all lawsuits filed by the union and unit employees had been resolved, and the proposal in this case postpones testing until the Supreme Court has ruled on the constitutionality of drug testing in the Federal sector, that difference does not render the proposal in this case negotiable.
The Agency notes that the proposal in this case conditions drug testing on a Supreme Court decision "without any consideration as to when or how such an appeal . . . might occur." Agency Statement at 4. The Agency contends that the proposal would therefore postpone implementation of its drug testing program without a guarantee that any such appeal would ever reach the Supreme Court and concludes that, under the proposal, no testing of unit employees would ever occur.
The Agency also asserts that although the Union does not claim that the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, the proposal "does not meet the criteria necessary to be considered an appropriate arrangement . . . ." Id. at 5. The Agency argues that the proposal excessively interferes with management's right to determine its internal security practices because the proposal could "unduly prevent implementation of drug testing[.]" Id. at 5-6.
The Union contends that the proposal does not interfere, "in any way," with management's right to determine its internal security practices. Petition for Review at 1. The Union did not file a response to the Agency's statement of position.
IV. Analysis and Conclusions
The proposal in this case requires the Agency to postpone implementation of its drug testing program for unit employees until "the U.S. Supreme Court rules on the constitutionality of drug testing programs in the Federal sector." As worded, the proposal does not distinguish among the types of drug tests, for example, random testing, applicant testing, reasonable suspicion testing, or post-accident testing. Further, the proposal also does not distinguish the drug testing program of the Agency from that of other agencies. The proposal does not distinguish between drug testing programs that were established under Executive Order No. 12564 and those that were not. The Union, moreover, offers no explanation as to the meaning and intent of the proposal.
The proposal could mean that the Agency must postpone testing only until the Supreme Court has ruled on the constitutionality of some type of drug testing, under some drug testing program, at some Federal agency. Interpreted in this manner, the condition prescribed by the proposal has already been met and the proposal is moot. In National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384 (1989), the Supreme Court held that the drug testing program established by the U.S. Customs Service to test employee applicants for promotion to specific types of positions did not violate employees' rights under the Fourth Amendment of the U.S. Constitution.
The proposal could also mean that the Agency must postpone testing until the Supreme Court has ruled on the constitutionality of each type of testing, under every form of testing program, at each Federal agency. It is unlikely, however, that the Supreme Court would grant review in all of the cases that it would take to decide the constitutionality of all types of testing, under all forms of testing program, at all Federal agencies. Accordingly, under this interpretation, the proposal clearly would prevent the Agency from ever implementing its drug testing program.
Even if we assume that the proposal is merely intended to postpone implementation of the Agency's drug testing program until the Supreme Court has ruled on the constitutionality of some type of testing under the Agency's own drug testing program, the proposal would, in effect, prevent the Agency from conducting drug tests. Because review by the Supreme Court of a case involving an aspect of the Agency's drug testing program would be in the discretion of the Court, and not by right, the Supreme Court might never grant review to rule on the constitutionality of that program. Moreover, should the Agency prevail in the courts below, the losing party could preclude the Supreme Court from resolving the constitutional question by simply failing or refusing to appeal the case to the Court. Compare Tooele Army Depot, 31 FLRA at 58 (under the proposal in dispute, the union and unit employees could prevent the agency's drug testing program from taking effect by continuing to file lawsuits).
Delay in implementing a drug testing program does not in and of itself render nonnegotiable a proposal causing that delay. See, for example, International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA No. 133 (1991) (Proposal 1) (proposal delaying implementation of drug testing until negotiations are completed held to be negotiable). Consequently, there may be circumstances in which a proposal to postpone implementation of a drug testing program pending a decision by the Supreme Court would be negotiable. In the absence of an explanation by the Union of the intent of the proposal, however, there is a range of possible interpretations of the proposal, some of which would render the proposal nonnegotiable because they would have the effect of preventing the Agency from conducting any drug testing. See Tooele Army Depot, 31 FLRA at 58-59.
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, 891 (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. Consequently, we will dismiss the Union's petition for review. See American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1103 (1991).
Because the Union did not explain the meaning and intent of the proposal, we are unable to determine whether the proposal would have the effect of preventing the Agency from implementing its drug testing program or, for example, would merely delay implementation until completion of pending Supreme Court review of that program. We conclude, therefore, that the record in this case is not sufficient for us to rule on the negotiability of the proposal.
Finally, because we are dismissing the Union's petition for review on the grounds that the record is insufficient for us to make a negotiability determination, we do not reach the question of whether the proposal is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
The Union's petition for review is dismissed.
(If blank, the decision does not have footnotes.)