[ v42 p412 ]
42:0412(33)NG
The decision of the Authority follows:
42 FLRA No. 33
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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of 33 proposals addressing the Agency's implementation of its drug testing program. The Agency filed a statement of position and the Union filed a reply brief. Both parties filed supplemental submissions.
We find that Proposal 2, which would bar the Agency from removing from Government service an employee who refused to enter counseling or rehabilitation after a confirmed positive drug test or who twice tested positive for illegal drug use, is nonnegotiable because it conflicts with law and Government-wide regulation.
Proposal 4, which provides that drug tests are to be administered "only where there is a specific objective reason to believe that the person who is to be tested is jeopardizing workplace safety or is not performing his or her job because of on the job intoxification [sic] or impairment[,]" is nonnegotiable insofar as it applies to random drug testing and to reasonable suspicion testing of employees who encumber security or safety-sensitive positions because it excessively interferes with the Agency's right to determine its internal security practices. Insofar as Proposal 4 applies to reasonable suspicion testing of employees who do not encumber such positions, it is negotiable.
Proposal 5, which requires that a supervisor provide written specific reasons for ordering a drug test at the time an employee is notified that he or she will be tested based on reasonable suspicion or an accident, and which requires management to give an employee a reasonable opportunity to contact a Union official prior to undergoing drug testing, is negotiable.
Proposal 9, which would prevent the Agency from sending a specific notice informing employees that they are in testing designated positions (TDPs) until 60 days after they have received the general notice required by law, is negotiable.
Proposal 12, which provides that only those positions with duties requiring incumbents to hold top secret security clearances may be designated as TDPs, is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices.
Proposal 14, which allows unit employees to request Agency review of decisions to designate the employees' positions as TDPs without regard to the time limit contained in the Agency's drug testing plan, except when the employee is ordered to undergo testing, is negotiable.
We dismiss the Union's petition for review of Proposal 19 because there is no dispute presently before us as to the negotiability of the proposal.
Proposals 21-25, which would permit drug testing in connection with an accident or unsafe practice only when there is a reasonably apparent relationship between the accident or practice and illegal drug use, are nonnegotiable because they excessively interfere with the Agency's right to determine its internal security practices.
Proposal 27, which provides that employees who participate in drug rehabilitation programs would not be required to submit to a total of more than 12 drug tests during a 1-year period, is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices.
Proposal 28, which provides that employees may only be tested for drugs during their regular working hours, may not be required to report outside of their regular working hours for the purpose of drug testing, and may not be required to remain after their regular working hours in order to complete a drug test, is nonnegotiable because it conflicts with a Government-wide regulation.
Proposal 29, which would prohibit the Agency from cancelling employees' scheduled leave or their travel on Agency business if employees are directed to report for a random drug test, is negotiable insofar as it concerns leave but nonnegotiable insofar as it concerns travel because it excessively interferes with the Agency's rights to determine its internal security practices and to assign work.
Proposal 30, which requires that the Agency collect specimens "in a manner compatible with employee dignity[,]" and not subject "the tested employee to a degrading experience[,]" is negotiable.
Proposal 31, which would prevent the Agency from requiring an employee to submit to a search, frisking, or disrobing before a drug test, is negotiable.
Proposal 32, which requires that reasonable suspicion testing be performed only when the Agency concludes that an employee's abnormal conduct or behavior is reasonably related to illegal drug use, is negotiable.
Proposal 35, which prohibits the use of any drug test which can not show impairment of work performance, is nonnegotiable because it is inconsistent with Government-wide regulations.
The first sentence of Proposal 39, which requires the Agency to reimburse employees for costs associated with challenging drug tests, is dismissed because there is an insufficient record on which to determine its negotiability. The second sentence of Proposal 39, which requires the Agency to provide certain employees with payment for mental duress, is nonnegotiable because it concerns matters which are specifically provided for by Federal law and, therefore, is excluded from the definition of conditions of employment.
Proposal 42, which requires the Agency to make a reasonable accommodation for an employee who is an illegal drug user, is nonnegotiable because it conflicts with law and Government-wide regulation.
Proposal 44, which would limit the Agency's choice of penalties for on-the-job infractions stemming from substance-induced impairment, is nonnegotiable because it excessively interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.
Proposal 47, which would preclude the Agency from disciplining employees who are found to use illegal drugs provided that they identify themselves as illegal drug users, obtain counseling or rehabilitation, and thereafter do not use illegal drugs, is nonnegotiable because it conflicts with law and Government-wide regulation.
Proposal 50, which requires that the Agency be able to provide certain reasons to support a belief that an employee may alter or substitute a sample before assigning an observer to oversee the provision of that sample, is negotiable.
Proposals 51 and 52, which would prevent direct observation of an employee's provision of a urine sample solely on the basis that the employee is undergoing reasonable suspicion testing, are negotiable.
Proposal 53 and the portion of Proposal 54 which would allow employees to identify themselves as illegal drug users and seek rehabilitation without being subject to additional drug testing, are nonnegotiable because they excessively interfere with the Agency's right to determine its internal security practices. We dismiss the Union's petition as to the portion of Proposal 54 which addresses the confidentiality of certain information relating to drug testing because the record before us is insufficient to determine its negotiability.
Proposal 59, which would require the Agency to bear any Union expenses incurred in litigation concerning the Agency's drug testing program, is nonnegotiable because it is inconsistent with law.
Proposal 61, which would require the Agency to delete statements in its drug testing plans stating that random drug testing is mandated by Executive Order 12564, is negotiable.
Proposal 62A, which provides that the Agency may grant an employee permission to leave a collection site before providing an adequate specimen if the employee has a compelling personal need to do so, is negotiable.
Proposal 66, which would prevent the Agency from randomly testing an employee for illegal drug use when the employee has previously undergone drug testing because of an accident or reasonable suspicion and the analysis of the prior test is incomplete, is negotiable.
II. Preliminary Issues
A. Proposals Properly Before the Authority
Following the issuance of the Agency's drug testing plans, the parties met to negotiate over various aspects of the plans. The Agency asserts that the parties reached agreement on certain proposals, other than the ones now before us, and that the Union refused to execute a written agreement embodying those agreements. Although the Union agrees that certain agreements were reached, it asserts that the Agency has refused to execute a written agreement and that it filed an unfair labor practice (ULP) charge concerning the matter. The Union argues that the issues raised in the ULP charge are not relevant here because the matters about which the Agency allegedly refused to execute a written agreement are not contained in the Union's petition for review.
Except for Proposal 19, which will be discussed separately, neither party claims that any of the proposals contained in the Union's petition for review are not properly before us in this proceeding. We will, therefore, address those proposals. To the extent the parties are in dispute over matters other than those raised in this negotiability appeal, such dispute should be resolved in other appropriate proceedings. For example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1990).
B. Supplemental Briefs
In its petition for review, the Union argued that certain of its proposals constitute negotiable appropriate arrangements under section 7106(b)(3) of the Statute. Subsequently, in its Reply Brief, the Union claimed that all the proposals are negotiable as appropriate arrangements.
The Agency filed a motion to strike the assertion in the Union's reply brief that all its proposals constitute appropriate arrangements, arguing that by failing to assert in its petition for review that all the proposals constituted appropriate arrangements, the Union failed to timely raise the issue. Alternatively, the Agency requested permission to file a supplemental brief addressing the Union's appropriate arrangement arguments.
The Union filed an opposition to the Agency's motion to strike. The Union also requested the opportunity to respond to the Agency's supplemental brief, if the Authority permitted the Agency to file such a brief.
The Authority denied the Agency's motion to strike. Noting that the Union did not object to the Agency's supplemental brief, the Authority accepted the brief. The Authority also permitted the Union to file a response to the Agency's supplemental brief. The Union then filed a response.
III. Proposal 2
The parties agree that all employees have a right to their privacy and that adverse action against an employee for off duty conduct should only be taken if it can be demonstrated that the employee's off duty conduct is specifically and directly impairing the employee's on-the-job performance.
A. Positions of the Parties
1. The Agency
The Agency points out that section 5(f)(2) of Executive Order 12564 (the Executive Order) states that an employee's illegal drug use may be determined based on, among other things, "a criminal conviction, administrative inquiry, or the results of an authorized testing program." The Agency argues that, under the Executive Order,
the circumstances in which an employee must be disciplined are not limited to those where the drug use can be shown to have actually impaired the employee's physical ability to perform his duties on-the-job. Rather, it encompasses, as well, circumstances where the use of illegal drugs is inconsistent with the nature of the employee's duties and the mission of the agency concerned.
Statement of Position at 4. The Agency asserts that, by limiting adverse actions based on off-duty conduct to conduct that specifically and directly impairs an employee's on-the-job performance, the proposal violates the Executive Order.
In addition, the Agency contends that Proposal 2 interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute because it "implicitly 'establishes a standard to determine what are sufficient grounds to require a drug test.'" Statement of Position at 6 (quoting International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269, 274 (1988)). The Agency further contends that the proposal is inconsistent with the Agency's drug plan, which requires that some disciplinary action be taken against employees in sensitive positions who are found to use illegal drugs. The Agency argues that a compelling need exists for its plan. Furthermore, the Agency argues that, by establishing criteria for the imposition of discipline, the proposal interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.
The Agency contends that Proposal 2 also is inconsistent with Government-wide standards of conduct published by the Office of Personnel Management (OPM) at 5 C.F.R. Part 735. Specifically, the Agency asserts that the proposal conflicts with the standards of conduct because it would bar discipline for conduct that is prejudicial to the Government.
Finally, the Agency asserts that Proposal 2 is not an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency contends that, instead of constituting an arrangement for employees adversely affected by a management action, the proposal prevents management from imposing discipline in certain circumstances. The Agency asserts that any adverse effect results from employee misconduct in using illegal drugs. In the Agency's view, "the employee's interests in that situation are not entitled to be given sufficient weight to consider the proposal as not excessively interfering with the right to discipline." Supplementary Brief at 17.
2. The Union
The Union contends, citing 5 U.S.C. § 2302(b)(10), that "one should assume that the Executive Order was not designed to overturn the expressed intention of Congress which provided that employees should not suffer discrimination on the basis of conduct 'which does not adversely affect the performance of the employee or applicant or the performance of others . . . .'" Reply Brief at 3. The Union asserts that the Executive Order allows management the discretion to "require a positive test and a finding of on-the-job impairment before determining that illegal drug use exists for purposes of discipline required by the Executive Order." Id. at 3-4 (emphasis in original). Therefore, in the Union's view, the proposed limitation on adverse action for off-duty conduct is consistent with the Executive Order.
The Union denies that Proposal 2 interferes with the Agency's rights to determine its internal security practices and to discipline employees. According to the Union, the Agency retains authority, under the proposal, "to determine when an employee's off duty conduct would adversely affect security or impair the employee's ability to perform his or her job." Id. at 4.
The Union also argues that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. With regard to the Agency's right to determine its internal security practices, the Union contends that the proposal protects employees from invasions of privacy and from false positive test results. Such protection, the Union asserts, "weighs more heavily than the minimal impact on management's ability to establish its internal security policies and practices." Response to Agency's Supplementary Brief at 8. Concerning the Agency's right to discipline, the Union argues that employees' privacy interests "outweigh management's interest in taking discipline, where the employee is not doing anything that would undermine the efficiency of the Federal service." Id. Finally, the Union asserts that Proposal 2 does not conflict with the Executive Order, which, in the Union's view, "does not require that a drug testing program include random urinalysis." Id.
B. Analysis and Conclusions
We note first that in NTEU v. Yeutter, 918 F.2d 968 (D.C. Cir. 1990), the United States Court of Appeals for the District of Columbia Circuit addressed, among other things, the constitutionality of the drug testing plan of the U.S. Department of Agriculture as it applied to certain employees. The court concluded, as relevant here, that "the USDA Program is unconstitutional insofar as it authorizes mandatory drug testing of . . . [employees] who do not hold safety- or security-sensitive jobs, absent reasonable suspicion of on-duty drug use or drug-impaired work performance." Id. at 974. Subsequently, the Office of Personnel Management (OPM) announced that as a result of the decision in NTEU v. Yeutter, it is revising its "guidance" in FPM Letter 792-19 insofar as it pertains to reasonable suspicion testing. U.S. Office of Personnel Management, New Developments in Employee and Labor Relations (July 1991) at 3 (OPM Developments). In particular, OPM states that "[e]mployees who do not occupy safety/sensitive positions may only be required to undergo reasonable suspicion testing due to on-duty drug use or impairment." Id.
Proposal 2, however, does not concern the circumstances under which an employee may be subject to a drug test. Rather, Proposal 2 concerns limitations on the Agency's right to take an action against an employee after the employee has had a confirmed positive drug test. In this regard, section 5(d) of the Executive Order requires agencies to "initiate action to remove from the service any employee who is found to use illegal drugs" and refuses to enter counseling or rehabilitation, or subsequently fails to remain drug free. Section 5.d(8) of FPM Letter 792-19 states that "[i]nitiating action to remove the employee from Federal service is mandatory upon a second verified finding of illegal drug use." It is clear, therefore, that the Executive Order and the FPM Letter require separation of an employee for use of illegal drugs, in certain circumstances, whether or not the drug use adversely affects the employee's job performance. See also American Federation of Government Employees, Local 1692 and U.S. Department of the Air Force, Mather Air Force Base, California, 40 FLRA 868, 872 (1991) (Mather AFB).
The Union does not explain the meaning of the term "adverse action" in Proposal 2. Therefore, we will construe that term as it is defined in law and regulation. "Adverse action," as defined in 5 U.S.C. § 7512 and 5 C.F.R. § 752.401, includes removals. Interpreting "adverse action" in Proposal 2 consistent with these provisions, the proposal would bar the Agency from removing from Government service an employee whose removal is required by the Executive Order and the FPM Letter. That is, under the proposal, the Agency could not remove an employee solely because the employee refused counseling or rehabilitation after a confirmed positive drug test, or twice tested positive for illegal drug use. Consequently, Proposal 2 is inconsistent with section 5(d) of the Executive Order and section 5.d(8) of the FPM Letter. Compare Mather AFB, 40 FLRA at 874-75 (proposal precluding discipline in circumstances where discipline is not required by the Executive Order held to be negotiable appropriate arrangement).
Executive Order 12564 and FPM Letter 792-19 constitute, respectively, law and Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. For example, International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1524 (1991) (Bureau of Reclamation). Accordingly, as Proposal 2 is inconsistent with law and Government-wide regulation, it is nonnegotiable under section 7117(a)(1) of the Statute. As the proposal is nonnegotiable under section 7117(a)(1), we do not address the Agency's other arguments concerning the proposal. We also do not consider whether the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. See, for example, id. at 1529.
IV. Proposal 4
Drug tests are to be administered only where there is a specific objective reason to believe that the person who is to be tested is jeopardizing workplace safety or is not performing his or her job because of on the job intoxification [sic] or impairment.
A. Positions of the Parties
1. The Agency
The Agency argues that Proposal 4 is inconsistent with the "deterrent purpose" of Executive Order 12564 by preventing management from testing employees on a random basis and, therefore, is outside the duty to bargain under section 7117(a)(1) of the Statute. Statement of Position at 11 (emphasis omitted). The Agency further argues that Proposal 4 violates the Executive Order because it would prevent management from testing employees regardless of whether the Agency has a reasonable suspicion that the employee's performance or the safety of other workers is being adversely affected by the employee's off-duty drug use.
The Agency also argues that Proposal 4 interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency claims that the random testing required by the Agency plan and the Executive Order is a necessary part of the Agency's internal security practices for the reasons expressed by the agency concerning proposal 1 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 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, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 936 (1990) (Rock Island III).
In addition, the Agency argues that the proposal violates its right to discipline employees under section 7106(a)(2)(A) of the Statute. According to the Agency, employees may be disciplined for off-duty illegal drug use for reasons other than those identified in the proposal, such as when drug use is found to be inconsistent with the performance of an agency's mission. The Agency argues that, by limiting testing and possible disciplinary action to occasions when an employee is jeopardizing the workplace or failing to perform his or her duties, the proposal conflicts with the exercise of management's right to discipline.
The Agency rejects the Union's argument that Proposal 4 constitutes an appropriate arrangement. The Agency claims that the proposal would, in certain circumstances, preclude management from conducting any drug tests. In the Agency's view, even if the proposal could be viewed as an arrangement, the proposal's interference with management's right to conduct drug tests would be excessive.
The Agency also argues that the proposal violates various sections of the Agency plan which require that employees in TDPs be tested on a random basis. According to the Agency, there is a compelling need for the Agency plan under two of the criteria set forth in section 2424.11 of the Authority's Rules and Regulations for establishing compelling need. First, the Agency argues that random testing is essential to deter and detect illegal drug use and, thereby, effectively and efficiently to fulfill the Agency's law enforcement mission. Second, the Agency contends that random testing is mandated by Executive Order 12564.
Finally, the Agency claims that the proposal violates 5 C.F.R. § 735.209, a Government-wide regulation, by barring discipline for conduct that is prejudicial to the Government.
2. The Union
The Union denies that Executive Order 12564 requires random drug testing. In the Union's view, Proposal 4 is consistent with section 4(c)(1) of the Executive Order, which authorizes testing when there is a reasonable suspicion that an employee has engaged in illegal drug use.
The Union also disputes the Agency's assertion that the proposal interferes with management's right to determine its internal security practices. According to the Union, the organizational elements it represents perform Agency functions "such as payroll and mail distribution." Reply Brief at 6. The Union argues that, as applied to the bargaining unit, "[t]he purposes of the [Agency's] Plans are geared toward the efficiency of operations rather than to internal security." Id. Consequently, the Union argues that the proposal does not interfere with the Agency's internal security practices. However, if Proposal 4 is construed as involving the exercise of management's right to determine its internal security, the Union asserts that the proposal constitutes a negotiable appropriate arrangement.
The Union also disputes the Agency's argument that there is a compelling need for the Agency's plan encompassing random testing. According to the Union, the Agency has conceded that there is no widespread drug problem among its employees.
Finally, the Union argues that the proposal does not conflict with 5 C.F.R. § 735.209. According to the Union, the proposal would enable the Agency to measure employee conduct against appropriate regulatory standards.
B. Analysis and Conclusions
Proposal 4 would limit the circumstances in which the Agency could administer drug tests to those where there is a specific objective reason to believe that the employee who will be tested is either jeopardizing workplace safety or not performing work because of intoxication or impairment on the job. Consistent with the parties' arguments, and the plain wording of the proposal, we construe the proposal as applying to both random and reasonable suspicion testing. We will address the two types of testing separately.
1. Random Testing
Management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to establish a random drug testing program for employees in sensitive positions. See American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203, 1207 (1990) (Member Talkin dissenting as to other matters) (Fort Leavenworth). Random drug testing is linked to management's right to determine its internal security practices because it contributes to the objective of protecting the Agency's personnel, property, and operations from the threat of employee use of illegal drugs. Id.
Proposals prescribing substantive criteria governing the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute directly interfere with that right. Id. Accordingly, as Proposal 4 would preclude random drug testing, unless there is objective reason to believe that an employee's drug use is jeopardizing workplace safety or adversely affecting work performance, it directly interferes with management's right to determine its internal security practices.
We also find that Proposal 4 is not an appropriate arrangement within the meaning of section 7106(b)(3). To determine whether a proposal constitutes an appropriate arrangement, we must determine whether the proposal is: (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG).
The Union argues that Proposal 4 "moderates the effects" of the Agency's exercise of its right to determine its internal security practices. Response to Agency's Supplementary Brief at 9. It is clear, therefore, that Proposal 4 is intended to be an arrangement to minimize the adverse effects of management's imposition of a random drug testing program. Moreover, by limiting the circumstances in which the Agency could require employees to submit to random drug tests, the proposal would reduce the possibilities that employees would be disciplined, or otherwise adversely affected, as a result of such tests. Accordingly, we conclude that Proposal 4 constitutes an arrangement.
To determine whether a proposal excessively interferes with management's rights, the Authority balances the competing practical needs of employees and managers as they are affected by the proposal. See id. at 31-32. In this regard, an agency's implementation of a drug testing program may adversely affect employees' personal privacy. 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, 1094-95 (1990) (Department of Education), decision on reconsideration 39 FLRA 1241 (1991), petition for review filed sub nom. U.S. Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 1, 1991). See also National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384, 1390 (1989) (NTEU v. Von Raab); Section 4(c) of Executive Order No. 12564. In addition, employees subject to drug testing whose tests produces false positive results as well as employees who are disciplined or reassigned as a result of confirmed positive tests are adversely affected. See U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 719 (1991), petition for review filed sub nom. Professional Airways Systems Specialists Division, District No. 1-MEBA/NMU, AFL-CIO v. FLRA, No. 91-1310 (D.C. Cir. June 28, 1991). Proposal 4 would provide employees with significant benefits. It would reduce the potential for an employee's privacy being invaded by a drug test. In addition it would reduce the possibility of false positive drug test results. Finally, the proposal would reduce the likelihood that employees would be disciplined as a result of confirmed positive drug tests.
However, the proposal also would affect significantly the Agency's rights. The proposal would preclude random drug tests unless the Agency had specific, objective reason to believe that the employee to be tested was jeopardizing safety in the workplace or was not performing his or her job because he or she was under the influence of drugs. In effect, the proposal would severely limit the Agency's right to conduct random drug tests. This limitation, in turn, would affect significantly the Agency's ability to identify individuals whose illegal drug usage could disrupt Agency operations, result in the destruction of property, or threaten the safety of themselves and others, and, thereby, to safeguard its personnel and property.
In our view, the proposal's imposition of severe limitations on the Agency's authority to conduct random drug tests outweighs the benefits afforded employees by the proposal. See Rock Island I, 30 FLRA at 1057-58. Accordingly, insofar as Proposal 4 encompasses random tests, it is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. In view of our determination, we do not address the Agency's other arguments concerning the proposal as it relates to random testing. We note, however, that the Authority has held consistently that neither Executive Order 12564 nor FPM Letter 792-19 requires an Agency to conduct random drug testing. See, for example, Rock Island I at 1054-55.
2. Reasonable Suspicion Testing
As noted earlier in this decision, employees who do not occupy safety- or security-sensitive jobs may only be required to undergo reasonable suspicion testing due to on-duty drug use or impairment. NTEU v. Yeutter; OPM Developments at 3.
The record before us does not disclose whether the unit employees to whom Proposal 4 would apply occupy "safety- or security-sensitive jobs," as discussed by the court in NTEU v. Yeutter, or "safety/sensitive positions" as referenced by OPM in its recent issuance. It is reasonable to assume, however, that the unit encompasses some employees occupying safety- or security-sensitive positions as well as some who do not.
With respect to employees who occupy positions designated as safety- or security-sensitive, nothing in NTEU v. Yeutter or the OPM issuance affects our previous discussion of Proposal 4 as it relates to the Agency's right to determine its internal security practices. That is, for the same reasons as we found that Proposal 4 directly and excessively interferes with the Agency's right in connection with random testing, we conclude that the proposal directly and excessively interferes with that right in connection with reasonable suspicion testing. We do not, therefore, address the Agency's assertion that the proposal directly interferes with its right to assign work. In addition, as noted previously, neither the Executive Order nor FPM 792-19 requires an agency to engage in reasonable suspicion testing. We would not, therefore, find that the proposal conflicts with that law and regulation.
With respect to employees who do not occupy such positions, however, we conclude that Proposal 4 is negotiable. We note, at the outset, that the standard applied in Proposal 4 to reasonable suspicion testing is consistent with the standard applied by the court in NTEU v. Yeutter. Proposal 4 would require reasonable suspicion testing to be based on a "reason to believe" that the affected employee "is jeopardizing workplace safety or is not performing his or her job because of on the job intoxification [sic] or impairment." The standard applied by the court for such tests, with respect to employees who do not encumber security or safety sensitive positions, is "reasonable suspicion of on-duty drug use or drug-impaired work performance." NTEU v. Yeutter, 918 F.2d at 974. OPM states that FPM Letter 792-19 will encompass the same standard: "on-duty drug use or impairment." OPM Developments at 3.
In the absence of an assertion to the contrary, we find that the reference in Proposal 4 to intoxication on the job clearly would encompass on-duty drug use. On-duty impairment is expressly referenced in Proposal 4. As such, Proposal 4 would apply no different standard to the Agency's right to conduct reasonable suspicion testing for employees who do not encumber security or safety sensitive positions than that applied by the court, as adopted by OPM.
The standard imposed by the proposal on the Agency's conduct of reasonable suspicion testing, as it relates to employees who do not encumber security or safety sensitive positions, is no more restrictive than the standard established by the court in NTEU v. Yeutter, and adopted by OPM. Assuming that such limitation directly interferes with the Agency's right to determine its internal security practices, we nevertheless conclude that Proposal 4 would not excessively interfere with the Agency's right to determine its internal security practices in connection with such testing of such employees. We note, in this regard, that the Agency would retain all rights to direct affected employees to undergo drug testing based on any reasonable suspicion as a result of on-duty drug use or impairment. Moreover, the Agency has articulated no interest in acting in these circumstances without regard to Constitutional and other standards. See National Federation of Federal Employees, Council of GSA Locals and General Services Administration, 41 FLRA 728, 750 (1991) (GSA) (agency did not assert, and Authority could not discern, an interest in acting without regard to its regulations). Compare Department of Education, 38 FLRA at 1074-79 (agency did not demonstrate that a proposal requiring it to exercise its right to determine its internal security practices in accordance with the U.S. Constitution and other laws and regulations excessively interfered with its right). Indeed, we assume that the Agency's plan would be applied in a lawful manner consistent with governing regulations. See Rock Island I, 30 FLRA at 1051-52.
In addition, as noted previously, Proposal 4 would afford significant benefits to employees who do not occupy safety or security sensitive positions. In particular, among other things, Proposal 4 would ensure that they would be subject to reasonable suspicion testing only for suspicions resulting from their conduct or performance on the job. That is, Proposal 4 would ensure that the Agency exercised its right, as employer, to require an employee to submit to drug testing only as a result of reasonable suspicions based on the employer-employee relationship.
In these circumstances, we conclude that Proposal 4, insofar as it relates to reasonable suspicion testing of employees who do not hold safety or security sensitive positions, does not excessively interfere with the Agency's right to determine its internal security practices. We find, for the same reasons, that even if the proposal directly interferes with the Agency's right to assign work, it does not do so to an excessive degree. Accordingly, as the proposal is not inconsistent with the Executive Order or FPM Letter 792-19, and as no other basis for finding the proposal nonnegotiable is asserted by the Agency or apparent to us, we find, in this limited circumstance, that Proposal 4 is negotiable.
C. Summary
For the foregoing reasons, we conclude that insofar as Proposal 4 applies to random testing and to reasonable suspicion testing in connection with employees encumbering safety or security sensitive positions, it is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices. Insofar as Proposal 4 applies to reasonable suspicion testing of employees who do not occupy safety or security sensitive positions, it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
V. Proposal 5
When a supervisor refers an employee for accident or reasonable suspicion testing, the supervisor will concurrently provide the employee with a written statement of specific reasons forming the basis for the referral. The employee will be given a reasonable opportunity to contact a Union representative prior to being tested.
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposal 5 violates management's right under section 7106(a)(2)(B) of the Statute to assign work by making supervisors responsible for providing employees with written justifications for requiring them to undergo drug testing. The Agency contends that the proposal also interferes with management's right to determine its internal security practices under section 7106(a)(1). The Agency reasons that the proposal's requirement to provide an affected employee with the specific reasons forming the basis for ordering a drug test would compromise investigations surrounding accidents or reasonable suspicion situations, particularly with regard to divulging the names of individuals who may have provided management with information. According to the Agency, providing employees with written justifications for drug testing, in the case of accident testing, and allowing employees to contact a Union official prior to the testing would cause delays potentially affecting the outcomes of the drug tests. The Agency also argues that no right to representation during a drug test is afforded by section 7114(a)(2)(B) of the Statute.
The Agency also asserts that the proposal interferes in two ways with its right under section 7106(a)(2)(A) to direct employees. First, according to the Agency, "it is undisputable that management has a right to 'direct' an employee to carry out any legitimate instruction--including reporting to a specimen collection site--and that the right 'to direct' encompasses the right to direct in whatever form management chooses, that is[,] orally or in writing." Statement of Position at 21. Second, in the Agency's view, the opportunity to contact a Union representative interferes with the right to direct employees because "this right also includes the right to require the employee to routinely obey orders without contacting a Union representative first . . . ." Id. Finally, the Agency asserts that Proposal 5 is not an appropriate arrangement under section 7106(b)(3) of the Statute because it excessively interferes with management's rights to determine its internal security practices, to direct employees, and to assign work.
2. The Union
The Union contends that Proposal 5 "sets forth a negotiable procedure to be followed when an employee is referred for accident or reasonable suspicion testing. The government's regulation sets forth certain bases for accident or reasonable suspicion testing, so that a supervisor would be expected to have a reason for referring an employee for testing under these circumstances." Petition for Review at 4. The Union points out that the Agency's drug plan requires consultation among the supervisor, the official responsible for the Employee Assistance Program, and a higher-level supervisor before ordering a drug test of an employee based on reasonable suspicion. Therefore, in the Union's view, "the assignment of work has already been mandated by the Plan itself." Reply Brief at 8. The Union asserts that:
[t]he supervisor need not disclose the identification of informants nor state the explanation in a way that will impede further investigation. Written memorialization of the reasons for the test will not take such amount of time as would unduly delay and affect the outcome of the test. The internal security measures of the Agency would not be materially affected.
Id.
The Union contends that Proposal 5 does not interfere with the Agency's right to assign work because there is no requirement that the supervisor prepare the statement. According to the Union, "[t]o require the supervisor to act as a conduit has minimal impact on management's right to assign work." Response to Agency's Supplementary Brief at 10-11. The Union contends that Proposal 5 will "not unduly delay the exercise of management's rights." Reply Brief at 7-8. The Union asserts that the reasonable opportunity required by the proposal to contact a Union representative "amounts to allowing the employee to call the Union official to discuss the situation prior to going for testing." Id. at 8.
The Union also asserts that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union states that providing employees with the reasons for drug tests "balances the Agency's concerns with detecting the reasons for accidents or addressing their reasonable suspicion that drug use may be present, while safeguarding the employee against baseless referrals to the urine collection site." Response to Agency's Supplementary Brief at 10. The Union disputes the Agency's position that the requirement for concurrent written justification establishes a pre-condition to testing rather than an arrangement for employees affected by such testing. The Union contends that the Agency's exercise of its right to determine its internal security practices "begins when the employee is first ordered to go to the drug [sic] collection site, and not after he has finished providing the urine sample." Id. As for allowing the employee to contact a Union representative prior to testing, the Union argues that the proposal allows only a reasonable opportunity to contact a Union official and does not require a delay which would affect the outcome of the test. The Union further asserts that:
[b]eing detained at a collection site is an intimidating experience for employees who are being sent as a result of their having had a workplace accident or as a result of their behavior. To receive the reassurance and guidance of a Union representative softens the psychological blow that goes along with that type of order from management, while not excessively interfering with management's rights.
Id. at 11.
B. Analysis and Conclusions
1. First Sentence of Proposal 5
Section 4.c of FPM Letter 792-19 provides, among other things, that employees being tested for illegal drug usage because of reasonable suspicion or as part of an inquiry into an accident or unsafe practice will receive "notice that includes information contained in section 4b . . . ." As applicable to the dispute here, section 4.b(1) provides that affected employees will receive, in writing, information concerning "[t]he reasons for the urinalysis test, consistent with agency policy formulated in accordance with sections 1 and 3a. of this letter."
The first sentence of Proposal 5 requires that a supervisor provide written specific reasons for ordering the drug test at the time an employee is notified that he or she will be tested based on reasonable suspicion or an accident. In our view the first sentence of the proposal is consistent with the provisions of FPM Letter 792-19, cited above. Under provisions of the FPM Letter, the notice to report for drug testing because of reasonable suspicion or accident/unsafe practice will include the reasons for conducting the drug test. We find that "referral," as used in the first sentence of the proposal, is synonymous with "notice," as used in the FPM Letter. That is, both words refer to the same event: management's order that a particular employee report for drug testing. In addition, we find no basis in the wording of the first sentence of the proposal to conclude that the proposal requires information that is more detailed than that required to be furnished to the affected employee by the FPM Letter. Accordingly, as the first sentence of the proposal requires nothing more than is required by the FPM Letter, we find that the first sentence of Proposal 5 is consistent with the Letter.
Next, we address whether, by requiring the Agency to provide an affected employee with the reason for requiring the employee to undergo a drug test following an accident or based on reasonable suspicion, the first sentence of the proposal impermissibly interferes with the Agency's exercise of its right to determine its internal security practices. The Agency asserts that the first sentence of Proposal 5 so interferes because it would: (1) require the disclosure of information which would compromise ongoing investigations; and (2) cause an unreasonable delay in effecting drug testing after an accident. For the following reasons, we reject the Agency's assertions and find that the first sentence of the proposal does not directly interfere with the Agency's right to determine its internal security practices.
First, we find nothing in the wording of the first sentence of Proposal 5 that would require the disclosure of information which would compromise ongoing investigations. Indeed, the Union disavows any such objective, asserting that "[t]he supervisor need not disclose the identification of informants nor state the explanation in a way that will impede further investigation." Reply Brief at 8. As the Union's statement is consistent with the wording of the first sentence, and as the first sentence requires nothing more than is required by the FPM Letter, we find that first sentence of Proposal 5 would not result in a compromise of an ongoing investigation.
Second, the Agency argues that the requirement for concurrent written justification for testing would cause delay in drug testing after an accident. The Agency states that such delay could potentially affect the outcome of drug tests and, thereby, interfere with its right to determine its internal security practices. As an example, the Agency posits a situation where "the employee's supervisor will not be at the scene of the accident but rather base his decision on a telephonic report from the scene. A requirement to provide a written statement of the reasons before directing the employee to provide a specimen will necessitate a delay which could affect the outcome of the test." Statement of Position at 18-19 (emphasis in original).
This Agency argument appears to be premised on an interpretation of the first sentence of the proposal as requiring a specified individual, an affected employee's immediate supervisor, to physically transmit the written statement encompassed by the first sentence. However, we find no such requirement in the plain wording of the first sentence of the proposal or in the Union's statement of intent. Instead, by its terms the first sentence of the proposal applies "[w]hen a supervisor refers an employee for accident or reasonable suspicion testing[.]" Accordingly, we interpret the proposal as enabling any Agency supervisor to provide the written statement. For example, in the case of accident or unsafe practice testing, "a supervisor," as used in the proposal, could be the Drug Program Coordinator, who is responsible for initiating testing in such circumstances under the Agency's Offices, Boards, and Litigation Divisions (OBD) drug testing plan. See Petition for Review, Exhibit 3 at 17.
Consequently, insofar as the Agency's argument regarding its right to determine its internal security practices is based on its claim that the first sentence of the proposal would delay drug testing until an affected employee's immediate supervisor provided the written statement, the argument is without merit. For the same reasons, we reject the Agency's argument that the first sentence of the proposal directly interferes with its right to assign work. The first sentence of the proposal would merely require an Agency official to perform a certain function. A proposal does not directly interfere with an agency's rights under section 7106 of the Statute simply because it requires the assignment of someone to implement the proposal. For example, National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA 174, 185 (Forest Service), petition for review filed sub nom. U.S. Department of Agriculture, Forest Service v. FLRA, No. 91-1275 (D.C. Cir. June 10, 1991).
The Agency also asserts that "the requirement of writing itself will consume vital time." Statement of Position at 19. We find that argument unpersuasive. The first sentence of the proposal requires only that the reasons forming the basis for the referral to testing be furnished in writing to the employee. As we read the first sentence, the justification for post-accident testing requires nothing more than the fact that the accident is the type for which a drug test is required under Agency policy. There is no basis on which to conclude that the preparation of such a statement would cause a delay that would affect in any way the results of a drug test. We conclude, therefore, that insofar as the first sentence of the proposal relates to accident testing, it does not directly interfere with the Agency's right to determine its internal security practices.
With respect to reasonable suspicion testing, the FPM Letter requires, as noted previously, that an order that an employee undergo drug testing on such basis be accompanied by a written statement of circumstances forming the basis for such testing. See FPM Letter 792-19, section 4.c. Compliance with this Government-wide requirement would, of necessity, require preparation of such justification in advance of the order that an employee report for testing. The first sentence of the proposal requires only that the justification be provided to the affected employee at the time of referral to testing. Therefore, the first sentence of the proposal would result in no delay other than the minimal amount of time necessary to provide the statement to the employee. There has been no showing that such delay would affect the Agency's right to determine its internal security practices.
Moreover, even assuming that the delay resulting from preparation of the written statement of specific reasons constituted a direct interference with the Agency's right, the delay would be no greater than that which would otherwise be incurred as a result of complying with the FPM Letter. That is, any interference with the Agency's right would result from compliance with existing Government-wide regulations. We note, in this regard, that "the existence of applicable . . . regulations already serves to limit agency action and indicates that an agency's interest in being able to act without regard to those provisions . . . is negligible." Department of Education, 38 FLRA at 1078. On the other hand, the first sentence of the proposal would ensure that employees who are directed to take drug tests based on reasonable suspicion would be afforded the protections mandated by the FPM Letter. Such benefit to employees outweighs any minimal interference with the Agency's right to determine its internal security practices. Accordingly, even if the first sentence of the proposal were found to directly interferes with the Agency's right, it would be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. See id. at 1076-79.
In sum, we find that the first sentence of Proposal 5 is negotiable. The sentence would not affect the Agency's decision to require a drug test, would not compromise the security of the testing process, is consistent with FPM Letter 792-19, and does not directly interfere with the Agency's right to assign work. Insofar as the first sentence of the proposal concerns post-accident testing, it does not directly interfere with the Agency's right to determine its internal security practices. Even assuming that, insofar as the first sentence of the proposal concerns reasonable suspicion testing, it directly interferes with the Agency's right to determine its internal security practices, it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. See, Forest Service, 40 FLRA at 184-85.
2. The Second Sentence of Proposal 5
The second sentence requires management to give an employee a reasonable opportunity to contact a Union official prior to undergoing drug testing. According to the Union, "[a] reasonable opportunity to contact the Union representative can be given by allowing the employee to make a phone call before going to the test site." Petition for Review at 4. Further, the Union asserts that the second sentence of the proposal "does not require that the Union representative be present, and there is nothing to suggest that the contact would interfere with management's rights." Id.
As the Union's explanation is consistent with the plain wording of the second sentence of the proposal, we adopt it. Consistent with that explanation, we find that the second sentence, by requiring the Agency to provide an affected employee with an opportunity to contact a Union representative, by telephone if that is the most expeditious method, would not affect, in any way, the Agency's right to require testing or the outcome of a drug test. Accordingly, we find that the second sentence of Proposal 5 would not directly interfere with the Agency's right to determine its internal security practices. See Forest Service, 40 FLRA at 184 (proposal permitting union representation during the collection of urine specimens did not interfere with management's right to determine its internal security practices). Moreover, it is unnecessary to determine whether affected employees would be entitled to Union representation under section 7114 of the Statute in the circumstances encompassed by the proposal. Even if employees would not be so entitled, nothing in section 7114(a)(2) of the Statute prevents parties from negotiating contractual rights to union representation beyond those provided by that section. See Department of Education, 38 FLRA at 1088-89.
In conclusion, we find that both sentences of Proposal 5 are negotiable.
VI. Proposal 9
The individual notice of drug testing shall not be sent to employees until at least 60 days after their receipt of the general notice of drug testing.
A. Positions of the Parties
1. The Agency
The Agency argues that Proposal 9 is inconsistent with Executive Order 12564 and interferes with its rights to determine its internal security practices and discipline employees under, respectively, section 7106(a)(1) and (a)(2)(A) of the Statute.
The Agency argues that Proposal 9 conflicts with section 4(a) of the Executive Order because the intent of that section is that drug testing "will begin 61 days after the issuance of the general notice." Statement of Position at 29. The Agency contends that the parties are "barred by section 4(a) from extending the notice period or adding their own." Id. at 30. The Agency also asserts that section 4(c) of the Executive Order "contemplates implementation of drug testing when the section 4(c) general notice expires." Id. at 25. According to the Agency, Proposal 9 also is "'inconsistent with the spirit'" of section 4.b. of FPM Letter 792-19 because the Union intends that "the 60 day individual notice period be tacked on to the end of the general 60 day notice period[.]" Supplemental Brief in Support of Statement of Position at 25.
The Agency also contends that Proposal 9 directly interferes with management's right to determine its internal security practices by determining when management can institute drug testing. According to the Agency, the Union's intent in Proposal 9 is to require management to add an individual notice period to the 60-day general notice requirement in the Executive Order. Consequently, the Agency contends, Proposal 9 permits "employees whose illegal drug use might have been detected during the additional notice period, to continue that use for a longer period of time while avoiding detection." Statement of Position at 25. The Agency contends that Proposal 9's effect is the same as that of the proposal found nonnegotiable in U.S. Customs Service, Washington, D.C. v. FLRA, 854 F.2d 1414 (D.C. Cir. 1988).
The Agency also argues that Proposal 9 interferes with management's right to discipline by precluding management from taking "specific action (i.e., initiating random testing) to detect or prevent drug abuse which may be occurring during the arbitrary contractual extension of the 60-day notice provision" in the Executive Order. Statement of Position at 28-29. According to the Agency, management "must forego disciplining those employees" who continue to use illegal drugs during the extended notice period required by Proposal 9. Id. at 29. Moreover, the Agency asserts that Proposal 9's notice requirement would "preclude management from engaging in 'reasonable suspicion' and 'accident' and 'unsafe practices' testing for this extended period[.]" Id.
Finally, the Agency asserts that Proposal 9 is not a negotiable appropriate arrangement. The Agency contends that the Union failed to explain the adverse effects which would flow from testing or how the extension of the notice period would ameliorate the alleged adverse affects. According to the Agency, Proposal 9 would "altogether preclude management from exercising its rights under 5 U.S.C. § 7106(a)(1) and (2)(A) . . . ." Supplementary Brief at 23.
2. The Union
The Union asserts that Proposal 9 does not interfere with management's rights to determine its internal security practices and discipline employees. According to the Union, the individual notice concerns only random drug testing and is not "tied in with any specific security interests of the Agency." Reply Brief at 9. The Union also notes that accident and reasonable suspicion testing may go forward during the general notice period, and the Agency "is free to take appropriate disciplinary action in response to the results of those tests." Id. The Union contends that Proposal 9 is "procedural in nature" as it establishes "a time frame for notifying individual employees of their being in the random drug testing pool." Petition for Review at 4.
The Union also argues that Proposal 9 is an appropriate arrangement. In support, the Union asserts that "[t]he short delay" in conducting random drug testing does not excessively interfere with management's internal security rights. Response to Agency's Supplemental Brief at 12. The Union asserts that the proposal would facilitate an employee's entry into a drug recovery program.
B. Analysis and Conclusions
Executive Order 12564 and FPM Letter 792-19 provide, respectively, that general and special notices concerning drug testing be sent to employees. Section 4(a) of the Executive Order requires, with an exception not relevant here, that "[s]ixty days prior to the implementation of a drug testing program pursuant to this Order, agencies shall notify employees that testing for use of illegal drugs is to be conducted . . . ." FPM Letter 792-19, section 4.b., provides that "[a]gencies should ensure a specific notice is given, in writing, to each employee in a TDP [testing designated position] no later than thirty days before testing commences."
The Agency asserts that the proposal would require that employees be given 60-day individual notices in addition to the required 60-day general notice. Similarly, the Union refers to the proposal as encompassing an "additional 60 days . . . ." Response to Agency's Supplemental Brief at 12. We disagree, however, and find for the following reasons that these assertions are inconsistent with the plain wording of the proposal.
Proposal 9 prevents the Agency from sending the specific, or individual, notice informing employees that they are in TDPs until 60 days after they have received the general notice required by the Executive Order. That is, as plainly worded, Proposal 9 addresses only the timing of the receipt of the specific notice. The proposal does not establish, implicitly or explicitly, the length of the individual notice period itself. Moreover, there are no assertions in the record that the parties otherwise have agreed that employees would receive any more individual advance notice than the 30 days required by section 4.b. of FPM Letter 792-19. We assume, therefore, for the purposes of this decision, that Proposal 9 would require the Agency to wait until the 61st day after an employee's receipt of the general notice to provide the specific notice and that, consistent with the FPM Letter, the specific notice would provide 30 days' notice. In practical effect, the proposal would preclude the Agency from implementing a random testing program for 30 days beyond that required by law and regulation.
We reject the Agency's assertion that, by precluding the Agency from implementing testing on the 61st day after issuance of the general notice, Proposal 9 conflicts with section 4(a) of the Executive Order as well as the "spirit" of the FPM Letter. Supplemental Brief in Support of Statement of Position at 25. Nothing in section 4(a) of the Executive Order or in FPM Letter 792-19 requires that testing begin on the 61st day following issuance of the general notice. Indeed, section 4.a. of the FPM Letter provides that agencies must "ensure that at least sixty days elapse between a general one-time notice . . . and the beginning of actual drug testing." (Emphasis added.)
We also find that there is no basis for the Agency's assertion that Proposal 9 would directly interfere with management's right to discipline employees by preventing testing based on reasonable suspicion or accident/unsafe practice during the individual notice period. Nothing in the plain language of Proposal 9, or the Union's statement of intent regarding it, would affect drug testing based on reasonable suspicion or an accident/unsafe practice during that period or during the 60-day general notice period. We note, in this regard, that the individual notice encompassed by the FPM Letter relates only to random drug testing. Moreover, the Union's arguments relate only to random testing.
An agency's use of random testing as a part of its drug testing program constitutes an exercise of management's right to determine its internal security practices. Fort Leavenworth, 38 FLRA at 1203, 1207. Consistent with the interpretation of the proposal we previously adopted, Proposal 9 would require the Agency to provide employees with 30 days' specific notice of random testing. In practical effect, the proposal would preclude the Agency from implementing a random testing program for 30 days beyond that required by law and regulation. It is not clear, in this regard, that the proposal directly interferes with the Agency's right to determine its internal security practices. Compare American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 202-07 (1991) (provision requiring agency to provide employee with notice before effective date of adverse action held not to directly interfere with agency's rights to assign work or to direct, discipline, or remove employees) with National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1187 (1991) (proposal preventing the agency from implementing new qualification standards until specified date held to directly interfere with agency's rights to assign work and employees). However, in the circumstances of this case, and consistent with the Union's argument that the proposal constitutes an appropriate arrangement, we will assume such interference for the purposes of this decision.
In determining whether a proposal is an appropriate arrangement, we determine whether the proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. KANG, 21 FLRA 24, 31-33. It is clear that consistent with the Union's argument, Proposal 9 is intended as an arrangement for adversely affected employees.
Turning to the question of whether Proposal 9 excessively interferes with the Agency's right to determine its internal security practices, we find that the proposal would benefit employees by giving them additional time to locate and enter drug treatment programs. The Agency recognizes that providing employees with opportunities to enter such programs is beneficial by noting that the individual notices provide "employees . . . an additional incentive to quit and an opportunity to enter the 'safe harbor' program . . . before they became subject to random testing." Statement of Position at 23 (emphasis in original). This is a significant benefit to employees and one which is consistent with an overall goal of the drug testing program: "to offer drug users a helping hand and, at the same time, demonstrating . . . that drugs will not be tolerated in the Federal workplace." Executive Order 12564 (Preamble).
With respect to the negative effect on management's right to determine its internal security practices, the proposal would delay the implementation of random testing of unit employees for 30 days beyond that required by law and regulation. The Agency's rights to conduct other types of drug testing would not be affected by the proposal, however. In particular, the Agency would be free to investigate accidents or unsafe practices and, in addition, to act on reasonable suspicions that individual employees were using illegal drugs.
Balancing the benefit to employees against the burden imposed on the Agency by Proposal 9, we conclude that the proposal would not excessively interfere with the Agency's right to determine its internal security practices. Accordingly, we conclude that Proposal 9 constitutes an appropriate arrangement and is within the Agency's duty to bargain.
VII. Proposal 12
Any positions designated as testing designated positions ([T]DP) shall be only those positions which require that the duties of the incumbent have a top secret security clearance, and shall not include positions in which the incumbent has a top secret security clearance for duties that are not required for the position in question.
A. Positions of the Parties
l. The Agency
The Agency contends that Proposal 12 is nonnegotiable because it interferes with its authority under the Executive Order to determine which positions will be subject to random drug testing. The Agency asserts that the class of positions that could be designated as subject to drug testing under the proposal is narrower than that established by the Executive Order. The Agency also argues that the proposal is inconsistent with the Agency's drug testing plan for which, it contends, there is a compelling need.
Further, the Agency asserts that the proposal would result in disparate treatment of employees outside the bargaining unit, in conflict with Congressional intent in enacting the Supplemental Appropriations Act of 1987, Pub. L. 100-71, § 503(e), 101 Stat. 468, 471 (1987), codified at 5 U.S.C. § 7301 note (Supplemental Appropriations Act). The Agency argues that, under the Supplemental Appropriations Act, Congress intended "the appropriateness of the scope of each agency's drug testing plan--i.e., the particular positions to be tested--to finally be determined by [the Secretary of Health and Human Services] subject to Congressional oversight, not negotiated by the parties." Statement of Position at 35.
The Agency also asserts that Proposal 12 interferes with its right to determine its internal security practices by limiting its authority to determine which sensitive positions will be subject to random drug testing. Finally, the Agency characterizes the proposal as authorizing third parties to decide whether the work actually assigned to an employee requires possession of a top secret clearance. Extending such authority to third parties, the Agency contends, conflicts with various court decisions holding that the decision as to whether a clearance is required is within the exclusive discretion of management.
2. The Union
The Union argues that excluding employees who have top secret clearances, but who do not handle top secret information, from the testing pool poses no potential risk to the Agency. The Union contends that such exclusion "is consistent with the purposes and mandate of the Executive Order." Reply Brief at 10. The Union also contends that the proposal is an appropriate arrangement under section 7106(b)(3). The Union states that the invasion of privacy incident to drug testing adversely affects employees. The proposal, the Union asserts, is "an arrangement that prevents the Agency from including within its unconstitutional net of random drug testing employees who hold security clearances only as a result of administrative error, rather than as a result of any real need for the security clearance." Response to Agency's Supplementary Brief at 12-13.
B. Analysis and Conclusions
Proposal 12 provides that only those positions with duties requiring the incumbents to hold top secret security clearances may be designated for random drug testing. The proposal also specifically excludes from TDP designation positions held by employees with top secret clearances when the clearances are not required for the duties assigned to the positions.
The term "testing designated position," or "TDP" does not appear in Executive Order 12564. Rather, that term is used in section 3.a(2)ii of FPM Letter 792-19 to identify "which positions will actually be tested." Section 3.a(2)ii states that "an agency head may determine not to designate all sensitive positions as TDPs, but may limit testing to certain positions." Accordingly, to the extent that Proposal 12 would prevent the Agency from identifying certain positions as TDPs, it is not inconsistent with the FPM Letter. Instead, the FPM Letter allows agencies discretion in identifying positions as TDPs. Compare Department of Education, 38 FLRA at 1082 (part of proposal limiting agency's authority to designate sensitive positions held to be nonnegotiable under section 7117(a)(1) because of inconsistency with Executive Order).
Although Proposal 12 is not inconsistent with the FPM Letter, we conclude that the proposal is nevertheless nonnegotiable.
Proposals prescribing substantive criteria governing the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute directly interfere with that right. See, for example, Bureau of Reclamation, 39 FLRA at 1526. Management's right under section 7106(a)(1) includes the right to conduct random drug tests. Id. at 1527. Proposal 12 would limit the Agency's right to designate TDPs to "only those positions which require that the duties of the incumbent have a top secret security clearance[.]" Contrary to the Union's explanation, the proposal does not address only those TDPs that have been designated because they require certain security clearances. Instead, the plain wording of the proposal restricts the identification of all TDPs. That is, instead of constituting a restriction on the Agency's right to designate one class of TDPs, the proposal addresses all such positions. As the Union's interpretation of the proposal is inconsistent with its plain wording, we base our analysis of the proposal on its plain wording. See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 38 FLRA 1366, 1373 (1991).
Proposal 12 would limit the types of positions that the Agency could designate as TDPs and, thereby, subject the incumbents of those positions to random testing. The proposal constitutes a substantive restriction on the Agency's right to conduct random testing. Therefore, we conclude that Proposal 12 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Having concluded that the proposal directly interferes with the Agency's right to determine its internal security practices, the proposal is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. We conclude that the Union has failed to establish that Proposal 12 constitutes a negotiable appropriate arrangement under the criteria stated in KANG.
The Union states that the proposal is an arrangement to prevent the random testing for drugs of employees who hold top secret security clearances but have no access to top secret information. The proposal would, thereby, benefit such employees by eliminating the adverse effects which may flow from being subject to the Agency's drug testing program. For example, the proposal would reduce the potential for an employee's privacy being invaded by a drug test. In addition it would reduce the possibility of false positive drug test results. Finally, the proposal would reduce the likelihood that employees would be disciplined as a result of confirmed positive drug tests. The proposal's broad scope severely restricts the Agency's discretion to determine what positions should be subject to random testing, however. By limiting TDP designation to positions involving access to top secret information, the proposal would prevent the Agency from subjecting any other positions to random testing. We find that such a broad restriction on the Agency's ability to designate TDPs and, thereby, to conduct random drug testing, excessively interferes with the Agency's right to determine its internal security practices. Therefore, we conclude that Proposal 12 is not an appropriate arrangement and is nonnegotiable.
VIII. Proposal 14
An employee may appeal the designation of his/her position as a T[esting] D[esignated] P[osition] at any time except at the time that he/she has been called for random testing.
A. Positions of the Parties
1. The Agency
The Agency argues that the creation of an internal mechanism to review decisions concerning security clearances, which are among the factors applied in identifying a position as a TDP, is an exclusive management right. According to the Agency, "it follows that if management chooses to create an internal review mechanism, it cannot be required to negotiate regarding when such reviews must be conducted." Statement of Position at 37 (emphasis in original). The Agency points out that its drug testing plan provides for administrative appeals of identifications of positions as TDPs within 15 days of notification to employees that their positions have been so identified. The Agency asserts that its drug testing plan constitutes the exercise of its right to determine its internal security practices. Therefore, in the Agency's view, Proposal 14, which conflicts with the plan, is not within its duty to bargain because it directly interferes with that right.
The Agency also asserts that there is a compelling need for the 15-day appeal period in its drug testing plan. Asserting that, consistent with the Supplemental Appropriations Act, similarly situated employees subject to drug testing must be treated in a similar manner, the Agency argues that Proposal 14 would result in disparate treatment of employees outside the bargaining unit.
The Agency notes the Union's argument that the proposal provides a means of deleting positions from those designated for testing when the duties have changed so that the positions no longer meet the Agency's TDP criteria. The Agency rejects that argument and asserts there are two flaws in the Union's argument:
First, the Union was advised at the table that the supervisory training for drug testing would contain a module advising supervisors of the responsibility to initiate requests to either add or delete positions when changed circumstances might warrant such an amendment to the list of TDPs. Second, while the Union stresses this point, the language of the proposal itself would not limit an employee's right to submit a written appeal only to those circumstances where a change in duties occurs more than 15 days after his or her receipt of notification.
Id. at 38-39 (emphasis in original).
The Agency also asserts that the proposal is inconsistent with efficient and effective Agency operations. By permitting an employee to delay raising a valid argument that his or her position does not meet TDP criteria until testing has been completed, the proposal would, according to the Agency, waste the time of contractors who collect and test specimens. Also, in the Agency's view, "permitting such delays will encourage those employees who may have good reason to be concerned regarding the outcome of such a test to initiate such appeals as an obstructive tactic." Id. at 39.
The Agency argues that the proposal is not an appropriate arrangement because it excessively interferes with management's right to determine its internal security practices. Additionally, in its supplementary brief, the Agency alleges that the Union has changed its position on the proposal so as to allow an arbitrator to review the appropriateness of designating a position for random drug testing. In light of what it asserts is the Union's changed position, the Agency argues that the designation of a position as requiring a security clearance and the resultant designation of the position as a TDP is not reviewable by third parties.
2. The Union
The Union contends that the proposal merely extends the time period in which an employee may appeal the designation of his or her position as a TDP under the Agency plan. The Union contends that the proposal "precludes an employee from obstructing the Agency's ability to call the employee for testing." Reply Brief at 11. The Union denies that there is a compelling need for the 15-day time limit in the Agency's plan, asserting that "[m]ere convenience of the [A]gency does not meet the standard." Id. The Union characterizes the proposal as "procedural in nature" and also as "an appropriate arrangement for employees adversely affected by the exercise of management's rights." Id. at 11-12.
B. Analysis and Conclusions
Under Proposal 14, a unit employee could seek Agency review of the designation of his/her position as a TDP through the procedures established by the Agency. See Response to Agency's Supplementary Brief at 12-13. The proposal allows unit employees to request Agency review at any time, except when the employee is ordered to undergo testing, rather than within the 15-day period provided in the Agency's drug testing plan.
Under the proposal, as under the plan, the Agency would make the final decision concerning whether a position is properly identified as a TDP. The proposal is silent with respect to the appeal process by which employees would challenge the designation of their positions as TDPs. The Union asserts, however, that the proposal is intended to affect only the time period applicable to the Agency's existing appeal process. Moreover, the Union asserts that the proposal would not enable employees to challenge, through negotiated grievance and arbitration procedures, either the designation of their positions as TDPs or decisions regarding security clearances which may be involved in such designations. See Response to Agency's Supplementary Brief at 13-14.
Consistent with the Union's statements of intent, the proposal would not affect the Agency's right, under its existing plan, to make final decisions regarding the designation of positions as TDPs. Accordingly, the Agency's arguments regarding the reviewability of security clearance matters, as well as its assertions regarding its right to determine its internal security practices, are misplaced. As such, the negotiability of Proposal 14 turns on whether the proposal is, as asserted by the Agency, inconsistent with an Agency regulation for which a compelling need exists.
The Agency argues that there is a compelling need for its regulatory 15-day time limit on requests for administrative review of TDPs under section 2424.11(c) of the Authority's Rules and Regulations. Under that section, a compelling need exists if "[t]he rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature." The Agency asserts that removal of the 15-day time limit for unit employees would result in disparate treatment of employees outside the unit who would remain subject to that time limit. The Agency's position is based on the following excerpt from the legislative history of the Supplemental Appropriations Act, which states that agency drug testing plans must:
assure that Federal workers employed by different agencies who are similarly situated receive similar treatment, and that random testing of Federal employees is not implemented on an ad hoc basis.
133 Cong. Rec. H. 5680 (daily ed. June 27, 1987).
We are not persuaded that this portion of the legislative history supports a compelling need for the Agency's 15-day time limit. The Agency has not explained how the cited part of the legislative history mandates a 15-day time limit, or any other time limit on requests for review of TDP determinations. Rather, the excerpt indicates that only that Congress disapproves of ad hoc implementation of drug testing programs. In our view, the statement does not support the Agency's reasoning that its 15-day time limit on appeals is Congressionally mandated. The Agency has not identified any other statutory or regulatory requirement to support its position. Moreover, even if the Supplemental Appropriations Act required the consistent treatment claimed by the Agency, the Agency would be free, under the proposal, to achieve that consistency by amending its regulation with respect to all employees. See National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, 41 FLRA 1158, 1179 (1991) (National Park Service) (Authority held that even assuming that agency was required to apply its drug testing plan uniformly to unit and nonunit employees, nothing in the disputed proposal prevented the agency from applying it to all employees). Consequently, in our view, the Agency has not demonstrated that there is a compelling need for its existing 15-day time limit under section 2424.11(c) of the Authority's Regulations.
The Agency also argues that there is a compelling need for its 15-day time limit under section 2424.11(a) of our Regulations. Under that section, a compelling need exists if a rule or regulation "is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency or primary national subdivision in a manner which is consistent with the requirements of an effective and efficient government." The Agency asserts, in this regard, that permitting employees to appeal the designations of their positions as TDPs under the proposal "will inevitably lead to executing the functions of the [A]gency in an inefficient and ineffective manner . . . ." Statement of Position at 39.
Initially, we note that the Agency does not assert that the 15-day time limit is "essential" to the accomplishment of its mission in an effective and efficient manner. Section 2424.11(a) of the Authority's Rules and Regulations requires the demonstration of such essentiality to support a compelling need. Moreover, the Agency's contention that the proposal would inevitably lead to ineffective and inefficient operations is speculative. We note, in this regard, that the proposal expressly would preclude an employee from appealing the designation of his/her position as a TDP after the employee had been directed to submit to a random drug test. Finally, although the Agency argues that the existing 15-day time limit promotes efficiency and effectiveness of its operations by preventing employees from requesting review as an obstructive tactic, the Agency has not explained, and it is not otherwise apparent, how the absence of the 15-day time limit would promote groundless requests for review, while the 15-day limit would prevent them. Accordingly, we find that the Agency has not demonstrated that there is a compelling need for its 15-day time limit under section 2424.11(a) of the Authority's regulations.
As the Agency has not demonstrated that Proposal 14 conflicts with an Agency regulation for which a compelling need exists, under section 2424.11 of our Regulations, and as the proposal is not otherwise inconsistent with law or regulation, we conclude that the proposal is negotiable.
IX. Proposal 19
Whenever an employee is to be tested for the possible use of illegal drugs based upon a reasonable suspicion, i.e., specific objective reason to believe that an employee is using illegal drugs, that employee will be advised of his/her right to be provided with the names and telephone numbers of the President and Vice President of the [U]nion.
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposal 19, as contained in the Union's petition for review, is not the same as the proposal submitted to management. Specifically, according to the Agency, the proposal it reviewed provided, in addition to the wording submitted to us, "'that [the] employee will be advised of his/her right to Union representation regarding the drug test.'" Statement of Position at 41 (emphasis added by the Agency). The Agency states that it objected only to wording not included in the proposal the Union submitted to the Authority. Therefore, the Agency contends that we "should decline to entertain the proposal." Id.
As to the substance of the proposal which it reviewed, the Agency asserts that employees have no statutory right to Union representation regarding drug testing and that the Agency is not obligated to inform employees of a nonexistent right. Additionally, the Agency asserts that locating a Union representative and allowing the representative to carry out his or her functions "will often create a delay sufficient to affect the outcome of the test of that specimen, particularly in the case of cocaine and amphetamine use." Id. at 42. Finally, the Agency contends that it is "unlikely that the proposal concerns a condition of employment at all in that it does not address a matter which is within management's control." Supplemental Brief in Support of Statement of Position at 37.
2. The Union
The Union contends that Proposal 19, as presented to management, is identical to the proposal submitted to the Authority. The Union states that "[i]f the Agency objected only to the underlined portion of what it believes to be the proposal, then the parties should return to the table to see if agreement can be reached on the section to which no objection to negotiability is made." Reply Brief at 12. The Union also argues that Proposal 19 is consistent with section 7114(a)(2) of the Statute and would "not delay the drug testing beyond the 30 seconds that it takes to state that information nor does it interfere with the internal security practices and the right to discipline that the Agency has." Id. at 12-13. The Union notes that the proposal does not require that a Union representative be present during the drug test.
Finally, the Union contends that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union states that "[t]he right to be provided with the names and telephone numbers of the Union officials, lets the employee know that he/she is not alone in facing [the drug testing] situation, and it does not have an adverse impact on management's ability to conduct the test." Response to Agency's Supplementary Brief at 15.
B. Analysis and Conclusions
Under section 2424.1 of the Authority's Rules and Regulations, we will consider a petition for review of a negotiability issue only where the parties are in dispute as to whether a proposal is inconsistent with law, rule, or regulation. In referring to Proposal 19, as set out in the petition for review, the Agency stated that "management would not have asserted that the language above was nonnegotiable if that had, in fact, been the final proposal actually submitted to [the Agency] by the Union because the delay involved is negligible." Supplemental Brief in Support of Statement of Position at 36-37.
Because the Agency does not assert that the proposal before us is nonnegotiable, the conditions governing review of negotiability issues have not been met. Consequently, we will dismiss the Union's petition for review of Proposal 19 without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are satisfied and the Union elects to file such an appeal. See, for example, American Federation of Government Employees, AFL-CIO, Local 3369 and Social Security Administration, Midtown District Office, 31 FLRA 1114, 1115-16 (1988).
X. Proposals 21-25 (1)
Proposal 21. Accident or unsafe practice testing will normally occur only when there is evidence of an unsafe practice that reasonably appears to be the result of illegal drug use.
Proposal 22. Accident or unsafe practice testing will normally be done only when significant damage to property occurs and that damage reasonably appears to be related to illegal drug use.
Proposal 23. Accident or unsafe practice testing for the careless operation of a vehicle will normally occur only when the careless operation reasonably appears to be related to illegal drug use.
Proposal 24. Accident or unsafe practice testing for significant injury to persons will normally be done only when such injury reasonably appears to be done as a result of illegal drug use.
Proposal 25. Accident or unsafe practice testing for pattern of erratic incidents will normally be done only when such pattern reasonably appears to be related to the use of illegal drugs.
A. Positions of the Parties
1. The Agency
The Agency claims that Proposals 21 through 25 are inconsistent with Executive Order 12564. According to the Agency, section 3(c)(2) of the Executive Order "does not limit agency heads to initiating tests only when they have some reason, other than the occurrence of unsafe practice or an accident itself, to believe that the practice or accident resulted from the use of illegal drugs." Statement of Position at 43 (emphasis in original). The Agency claims that the accident or unsafe practice testing permitted under section 3(c)(2) of the Executive Order must be read to apply in circumstances other than those which may give rise to the reasonable suspicion testing specified in section 3(c)(1) of the Executive Order.
The Agency also argues that the proposals interfere with management's right to determine internal security practices under section 7106(a)(1) of the Statute by "establish[ing] criteria which are more restrictive than those which management has chosen to apply." Statement of Position at 46. The Agency argues that use of the term "normally" does not reserve to management sufficient discretion in the exercise of its right.
Finally, the Agency claims that the proposals are inconsistent with the Agency's drug testing plans. The Agency notes that its plans, for which it asserts compelling need, authorize drug testing based solely on the occurrence of an unsafe practice or accident.
2. The Union
The Union argues that Proposals 21-25 do not violate the Agency's right to determine its internal security practices. The Union also claims that the proposals merely repeat the standards for accident or unsafe practice testing that are contained in the Agency's plan, adding that "[t]he proposals make explicit what the relationship between testing and the Agency goals should be, i.e., that testing is related to possible illegal drug use." Petition for Review at 7. In the alternative, the Union asserts that the proposals constitute negotiable appropriate arrangements.
The Union also argues that the proposals are designed to link drug testing to possible illegal drug use. However, the Union states that inclusion of the word "normally" in the proposals allows management to test even when there is no obvious relation to drug use.
B. Analysis and Conclusions
Proposals 21 through 25 list five circumstances in which testing for accident or unsafe practice is authorized. The proposals state that testing will "normally" occur only when the accident or unsafe practice "reasonably appears" to be related to, or the result of, illegal drug use. Therefore, the proposals require that drug testing in accident and unsafe practice situations be based, in most cases, on a reasonably apparent relationship between the accident or unsafe practice and illegal drug use.
The decision to require employees to undergo random testing for use of illegal drugs constitutes an exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute. For example, Bureau of Reclamation, 39 FLRA at 1526-27. Proposals which limit management's discretion to require that an employee be tested for illegal drugs directly interfere with the exercise of that right. For example, a proposal limiting management to drug testing on the basis of probable cause, thereby precluding random drug testing, directly interferes with the agency's right to determine its internal security practices. See American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45, 48-49 (1988) (Tooele Army Depot).
Proposals 21 through 25 permit drug testing only when there is a reasonably apparent relationship between an accident or unsafe practice and illegal drug usage. We conclude that post-accident or unsafe practice testing, like random testing, affords protection to Agency property and operations. Accordingly, we find that the right to conduct such testing constitutes the exercise of the Agency's right to determine its internal security practices. Therefore, like the probable cause standard in Tooele Army Depot, the proposals' limitations on the grounds for such testing directly interfere with the Agency's right to determine its internal security practices. Including in each proposal the qualification that such tests "will normally be done" (Proposals 22, 24, and 25), or that they will "normally occur" (Proposals 21 and 23), when there is such reasonably apparent relationship does not eliminate the direct interference with management's right. Under the proposals, the Agency's right to test for drugs would be conditioned on either: (a) a relationship between the accident or unsafe practice and drug use, or (b) abnormal circumstances warranting testing of the employee involved. In either case, the proposals, by restricting the grounds for administering drug tests based upon a reasonable suspicion, an accident or an unsafe practice directly interfere with the right to determine internal security practices. See Fort Leavenworth, 38 FLRA at 1207.
We also find that Proposals 21 through 25 are not appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. As noted previously, in order to determine whether a proposal excessively interferes with management's rights so as not to constitute an appropriate arrangement, the Authority balances the competing practical needs of employees and managers as they are affected by the proposal. KANG, 21 FLRA at 31-32.
The Union asserts that the proposals are intended to mitigate the adverse effect on employees of being ordered to undergo urinalysis. The Union also contends that the proposals would encourage employees to file compensation claims. The Union contends that, when post-accident testing is unlimited, "employees who would not want to face the embarrassing experience of being ordered to urinate in a bottle, possibly under direct observation, would hesitate to report accidents or injuries at work." Response to Agency's Supplementary Brief at 16. Based on the Union's explanation, we find that the proposals are intended as arrangements to minimize the adverse effects of management's imposition of a program to test for drugs following accidents or unsafe practices.
Although the proposals are arrangements for adversely affected employees, we conclude that they are not appropriate arrangements. The proposals preclude accident and unsafe practice drug testing unless there is a reasonably apparent relationship between the incident and illegal drug usage. Accordingly, the proposals would prevent accident and unsafe practice drug testing unless there was a reasonable suspicion that the employee involved is an illegal drug user. Consequently, the proposals would prevent the Agency from ascertaining whether some incidents are drug-related and, in addition, would prevent the Agency from conducting full investigations into accidents and unsafe practices and from taking whatever actions are necessary to prevent future occurrences. In this respect, the proposals would benefit employees by limiting the number of drug tests to which an employee would be required to submit and, thereby, reduce: (1) the invasion of an employee's privacy by a drug test, (2) the possibility of false positive drug test results, and (3) the likelihood that employees would be disciplined as a result of confirmed positive drug tests. Nevertheless, although the proposals benefit employees, they do so at the cost of limiting the Agency's ability to investigate fully accidents and unsafe practices.
On balance, we find that the protection afforded to employees by the proposals is outweighed by the limitations on the Agency's ability to eliminate unsafe conditions in the workplace caused by illegal drug usage. Accordingly, the proposals excessively interfere with the Agency's right to determine its internal security practices and are not negotiable appropriate arrangements under section 7106(b)(3) of the Statute. In view of this determination, we do not address the Agency's other arguments concerning the proposals.
XI. Proposal 27
Employees who are placed in the follow-up testing pool who are subject to regular unannounced testing as well as testing imposed by [sic] Employee Assistance Program will not be tested more than 12 times per year under both plans combined.
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposal 27 is inconsistent with Executive Order 12564, the Agency's drug testing program, for which it alleges that a compelling need exists, and the Medical Review Officer (MRO) Manual, which the Agency claims constitutes a Government-wide regulation.
The Agency states that the Executive Order authorizes agencies to test for illegal drug use as part of counselling or rehabilitation through an Employee Assistance Program (EAP). The Agency argues that the objective of such testing is to "detect those employees who return to drug use after completing such programs." Statement of Position at 48.
The Agency also states that its drug testing plan requires a recovering drug user to undergo 10 tests during the 1-year follow-up period, "or as provided in an abeyance contract." Id.. These 10 tests, the Agency notes, are separate from any tests administered by a rehabilitation or treatment program. In this regard, the Agency states that the treatment programs to which employees are referred "do not work under contract for the [A]gency. Rather, treatment is provided to drug abusers by existing private organizations . . . ." Id. at 49 (emphasis in original). The Agency claims that "it would not be uncommon for a treatment program to test an enrolled employee more than 12 times before he or she leaves the program." Id. (emphasis in the original).
In the Agency's view, as the purpose of referral to drug rehabilitation programs is to stop illegal drug use, the effectiveness of such programs is dependent, "in substantial part," on frequent testing. Id. at 50. Therefore, the Agency asserts, "it follows that any arbitrary limit on frequency is not consistent with accomplishing this purpose." Id. The Agency contends that, even if Proposal 27 were not inconsistent with provisions of the Executive Order, it conflicts with the Agency plan for which, according to the Agency, there is a compelling need because "it is 'essential,' rather than merely 'desirable,' that testing be conducted at whatever frequency will maximize the likelihood that the employee will remain drug free during and after treatment." Id.
In addition, the Agency asserts that the proposed limitation on testing conflicts with a provision of the MRO Manual, which the Agency claims is a Government-wide regulation. The Agency notes that the MRO Manual requires:
. . . a system permitting no 'safe periods' for any employee. Each workday should present each employee with a new opportunity of having to produce a sample, with the odds equal for all employees on each new day, regardless of the samples previously produced by any of them.
Supplemental Brief in Support of Statement of Position at 43.
The Agency also claims that Proposal 27 interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency asserts that the right to determine internal security practices includes the right to administer drug tests with sufficient frequency both to deter and to detect illegal drug usage. In the Agency's view, the proposed ceiling on the number of tests reduces the effectiveness of rehabilitation and adversely affects the Agency's ability to detect resumption of drug abuse.
The Agency contends that the proposal also interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency claims that "[i]t is self evident that limiting the number of times agency management can test an employee in a 'follow-up' category serves to decrease the likelihood that a resumption of illegal drug use by the employee--not an infrequent occurrence--will be detected as soon as possible." Statement of Position at 51.
The Agency contends that the Union makes no specific assertion that the proposal constitutes an appropriate arrangement. The Agency argues that, in the event the proposal is so construed, it is implausible to contend that "the administrators of the private sector drug counselling programs to which users are referred by the EAP Director will be inclined to administer drug tests more frequently to 'harass' enrollees[.]" Id. at 52. In addition, the Agency contends that the number of Agency-administered tests is fixed at 10 by the Agency plan, leaving responsible officials with no discretion which would allow harassment of employees.
The Agency further asserts that the Agency's follow-up testing benefits employees instead of adversely affecting them. According to the Agency, such testing "constitutes a necessary inducement--in essence an extension of the rehabilitation effort--to identified drug users to continue to refrain from relapsing into the use of illegal drugs." Supplementary Brief at 28-29. Moreover, the Agency contends that any adverse impact would result from an employee's illegal drug use and that such an effect would not outweigh the Agency's interest in identifying and removing illegal drug users.
2. The Union
The Union asserts that Proposal 27:
is designed to limit the number of times an employee can be sent for drug testing. It allows the Agency to conduct the follow-up testing in accordance with Chapter 12, Section C of the OBD Plan, but presents a limitation on the number of times that testing can occur. This limitation is designed to prevent harassment of employees who have been found to use illegal drugs, while protecting management's right to engage in the follow-up testing.
Petition for Review at 8. The Union claims that Proposal 27, therefore, "cannot be deemed to violate management's internal security practices, because it does not contradict the practices that they have embodied in their plan . . . ." Reply Brief at 15. The Union also contends that the proposal is an appropriate arrangement under section 7106(b)(3). The Union states that the adverse effect addressed by the proposal is "the inherent negative impact on employee dignity that is imposed by enforced urinalysis." Response to Agency's Supplementary Brief at 17. Additionally, in the Union's view, "going to the collection site, whether it be at the Agency or through the Employee Assistance Program, takes time out of an employee's day, and creates additional stress that is undesirable." Id. The Union contends that, under the proposal, the Agency's "ability to determine its [internal] security practices is not interfered with to an excessive degree." Id.
B. Analysis and Conclusions
Under Proposal 27, employees who participate in drug rehabilitation programs would not be required to submit to a total of more than 12 drug tests during a 1-year period. Based on the wording of the proposal and the record in this case, we find that the limit of 12 drug tests annually includes tests required by a rehabilitation program or facility and Agency-administered drug tests. In making this finding, we note particularly the Union's statement that "going to the collection site, whether it be at the Agency or through the Employee Assistance Program, takes time out of an employee's day, and creates additional stress that is undesirable." Response to Agency's Supplementary Brief at 17. In addition, the Union does not challenge the Agency's assertion that the 12-test limit imposed by the proposal includes tests conducted by the rehabilitation service and tests administered by the Agency directly.
It also is undisputed by the Union that the Agency exercises no control over the rehabilitation facilities to which employees are referred by the EAP. As the Agency exerts no control over the rehabilitation facility's procedures, it cannot limit the number of drug tests the facility administers in the course of the rehabilitation process. The Agency points out that "it would not be uncommon for a treatment program to test an enrolled employee more than 12 times before he or she leaves the program." Statement of Position at 49 (emphasis in original).
To the extent that Proposal 27 would limit the Agency's ability to test an employee undergoing rehabilitation, or a rehabilitated employee, for illegal drug use, the proposal is not inconsistent with law or Government-wide regulation. The Executive Order, in section 3(c)(3), provides that agency heads are "authorized" to conduct drug testing "[a]s part of or as a follow-up to counseling or rehabilitation for illegal drug use through an Employee Assistance Program." Section 3.e of FPM Letter 792-19 similarly provides that agency heads "may also require agency-administered follow-up drug testing during or after counseling rehabilitation for illegal drug use . . . ." As the Executive Order and the FPM Letter authorize, but do not require, an agency to test for drugs as part of, or as a follow-up to, rehabilitation, the proposal does not conflict with those issuances. See Bureau of Reclamation, 39 FLRA at 1526.
However, proposals which constitute substantive restrictions on management's exercise of its right to determine its internal security practices under section 7106(a)(1) of the Statute directly interfere with that right. Id. In this regard, we have held that random drug testing constitutes an exercise of an agency's right under section 7106(a)(1). Such testing, we found, safeguards agency physical property against internal and external risks, forestalls improper or unauthorized disclosure of information, and prevents disruption of activities by deterring and detecting illegal drug usage. Rock Island I, 30 FLRA at 1055-57.
Similarly, it is reasonable to conclude that follow-up testing of employees with histories of drug abuse affords protection to agency property and operations. Accordingly, we conclude that management's right to determine its internal security practices includes the right to conduct drug tests of employees, identified as drug users, during and after participation in rehabilitation programs. Consistent with our decisions concerning proposals limiting an agency's ability to administer random drug tests, we conclude also that Proposal 27's limitation on the Agency's ability to require follow-up tests for rehabilitated drug users directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See, for example, Fort Leavenworth, 38 FLRA at 1207-08.
The Union has failed to demonstrate that Proposal 27 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Applying the principles, set forth in KANG, we find that Proposal 27, in limiting the number of tests employees must undergo, constitutes an arrangement for employees adversely affected by the exercise of management's right to administer follow-up drug tests under section 7106(a)(1) of the Statute. The proposal would, in this regard, limit the number of drug tests to which an employee would be required to submit and, thereby, reduce: (1) the invasion of an employee's privacy by a drug test, (2) the possibility of false positive drug test results, and (3) the likelihood that employees would be disciplined as a result of confirmed positive drug tests.
However, the proposal does not constitute an appropriate arrangement. By limiting the Agency's right to require urinalysis tests to assure that former drug users remain drug free, Proposal 27 would restrict the Agency's discretion to determine whether any, or what amount of, follow-up testing is warranted to secure and safeguard the Agency's property and employees. It is undisputed that "it would not be uncommon" for private treatment programs to administer more than 12 drug tests to an affected employee before the employee leaves the programs. Statement of Position at 49. In such situations, the proposal would, in effect, preclude any follow-up testing by the Agency itself. We find that, on balance, the negative impact on management's right outweighs the benefit to employees and, as such, this limitation excessively interferes with the Agency's right to determine its internal security practices. Therefore, we conclude that Proposal 27 is not an appropriate arrangement and is nonnegotiable. In view of this determination, we do not address the Agency's other arguments concerning the proposal.
XII. Proposal 28
Employees who are required to submit to drug testing should be tested only during their regular working hours, and will not be required to report to or remain at the collection site during off duty hours.
A. Positions of the Parties
1. The Agency
The Agency argues that Proposal 28 is nonnegotiable because it: (1) is inconsistent with the HHS Guidelines; (2) interferes with management's right to determine its internal security practices under section 7106(a)(1); and (3) interferes with management's right to direct and discipline employees under section 7106(a)(2)(A).
The Agency argues that Proposal 28 conflicts with section 2.2(f)(10) of the HHS Guidelines. The Agency asserts that the Guidelines "do not authorize employees to leave the collection site at the end of the regular work day and return the next day when they cannot produce a 60 milliliter specimen . . . ." Statement of Position at 55. The Guidelines require, according to the Agency, that the collection site operator contact the appropriate authority for guidance when employees cannot produce sufficient samples. The Agency also contends that its argument is supported by the MRO Manual, which requires that employees who cannot produce 60 milliliters be provided with 8 ounces of fluid every 30 minutes until they are able to do so.
The Agency also argues that Proposal 28 interferes with its right to determine its internal security practices because that right "encompasses the right to direct employees to remain at a collection site in a duty status (i.e. on overtime) after normal working hours . . . ." Id. at 59. According to the Agency, the proposal "would absolutely preclude responsible management officials from directing the employee to remain at the facility on an overtime basis until provision of a specimen is accomplished." Id. at 58. Consequently, the Agency asserts that Proposal 28 would make it possible for employees to withhold specimens and make "the planning necessary for tampering or substitution easier." Id. Citing Skinner v. Railway Executives' Association, 109 S. Ct. 1402 (1989) (Skinner), the Agency also asserts that "any proposal which would serve to delay the provision of a specimen operates to reduce the likelihood that the subsequent test will be able to detect drug residues or drug metabolites which would have been present at detectable levels." Supplemental Brief in Support of Statement of Position at 44.
In addition, the Agency asserts that because Proposal 28 reduces management's ability "to detect offenses," it also necessarily interferes with management's right to discipline employees for the offense that might otherwise have been detected. Statement of Position at 60. The Agency also asserts that Proposal 28 interferes with management's right to direct employees under section 7106(a)(2)(A) of the Statute. According to the Agency, this right includes the right to instruct employees to do whatever is necessary, including remaining or returning to duty on an overtime basis, "to eliminate avoidable risks that illegal conduct will not be detected as soon as possible." Id.
Finally, the Agency argues that Proposal 28 "provides absolutely no basis for applying the 'excessive interference' test . . . ." Supplementary Brief at 30. According to the Agency, the effect that concerns the Union, namely the possibility that employees could not be paid overtime to complete drug testing, is "an effect which will not occur." Id. Additionally, the Agency argues that Proposal 28 would "totally" preclude management from "exercising the reserved right to 'direct' [employees]" . . . . Id.
2. The Union
The Union agrees that the Agency has the right to direct an employee to provide a urine sample, but argues that collection should be done on work time. The Union also asserts that Proposal 28 "merely sets forth procedural parameters for the conduct of the test." Petition for Review at 9.
The Union also contends that Proposal 28 is an appropriate arrangement because it "protects employees' financial interests, as well as their interests in having a pre-determined schedule by which they can plan their lives." Reply Brief at 15-16. The Union contends that the proposal prevents employees from "having to change what may be very inflexible travel or child care plans." Response to Agency's Supplementary Brief at 17. According to the Union, "the right to assign work is only minimally affected, because the employee will submit to a urine test." Id. at 18.
B. Analysis and Conclusions
Section 2.2(f)(10) of the HHS Guidelines provides that in the event an employee who is being tested for drugs cannot provide a 60 milliliter sample, "the individual may be given a reasonable amount of liquid to drink . . . . If the individual fails for any reason to provide 60 milliliters of urine, the collection site person shall contact the appropriate authority to obtain guidance on the action to be taken."
In National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 38 FLRA 79, 86 (1990) (Department of Energy), we found that a proposal which did not permit collection site personnel to detain an employee who was unable to provide a sufficient urine sample was inconsistent with section 2.2(f)(10) of the HHS Guidelines. We concluded that by removing the option for testing site personnel to give the employee being tested additional liquid so as to obtain a sufficient sample or the option to detain an employee who has failed to provide a sufficient sample until guidance was received from an appropriate authority, the proposal was inconsistent with the Guidelines.
Under Proposal 28, employees could not be detained at the collection site after the end of their duty hours for any reason. As such, Proposal 28 would prevent collection site personnel from following the procedures in section 2.2(f)(10) of the Guidelines in the event that an employee was unable to provide a sufficient sample before his or her normal workday ended. That is, under Proposal 28 such employee could not be detained at the collection site after his or her regular duty hours ended. Accordingly, as Proposal 28 is, in certain situations, inconsistent with section 2.2(f)(10) of the Guidelines, it is nonnegotiable under section 7117(a)(1) of the Statute. See also National Park Service, 41 FLRA 1158 at 1183; American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439, 1445-47 (1990) (Member Talkin dissenting as to other matters) (Sierra Army Depot). In view of our conclusion, we do not reach the Agency's other arguments.
XIII. Proposal 29
Employees who are scheduled for leave or travel during their normal duty hours will not be required to cancel that leave or travel to take the drug test. They will be allowed to provide a urine sample on a day in which they are scheduled to be at the worksite.(2)
A. Positions of the Parties
1. The Agency
The Agency argues that Proposal 29 is nonnegotiable because it: (1) is inconsistent with an Agency's drug testing regulation for which the Agency asserts there is a compelling need; (2) interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute; (3) interferes with management's right to determine its internal security practices under section 7106(a)(1), and (4) conflicts with the MRO Manual which, according to the Agency, is a Government-wide regulation.
The Agency asserts that Proposal 29 conflicts with Chapter 4.D. of the Agency-wide drug testing plan. According to the Agency, Chapter 4.D. specifies that when an employee who has previously been scheduled for leave or travel is scheduled to be tested, the employee's first and second-level supervisors must concur that the employee will be allowed to take the leave or travel in order to postpone the drug test. The Agency asserts that it is "'essential' rather than merely desirable" that decisions concerning the Agency's security interests be made by management. Statement of Position at 64.
The Agency also argues that management's rights to direct employees and assign work include the right to delay or cancel leave previously granted. The Agency asserts that these rights "encompass a 'direction' to report to a specimen collection site and to obey the instructions of the person or persons in charge of that site." Id. at 65. The Agency notes, however, that it does not object to the proposal to the extent that it would preclude management from delaying or cancelling leave that the Agency is required to grant by law, such as military leave.
The Agency argues further that Proposal 29 interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. According to the Agency, "an essential element" of drug testing is that employees who are to be tested "not be forewarned" as to when they will be tested. Id. The Agency asserts that this aspect of drug testing is based on section 3(a) of the Executive Order. Additionally, the Agency argues that any delay in testing makes it less likely that "residues and metabolites of illegal drugs" will be discovered and gives "employees who may be so inclined [] a greater opportunity to dilute, or make other plans to tamper with, the specimen eventually provided." Supplemental Brief in Support of Statement of Position at 45.
The Agency also argues that Proposal 29 conflicts with the MRO Manual which, it states, is a Government-wide regulation. According to the Agency, the MRO Manual provides that there be "no 'safe periods' for any employee[,]" and that "[e]ach workday should present each employee with a new opportunity of having to produce a sample[.]" Id. at 46.
The Agency rejects the Union's assertion that Proposal 29 is a negotiable appropriate arrangement. The Agency concedes that cancellation of approved leave "might, on occasion, have an adverse impact on the employees concerned . . . ." Supplementary Brief at 32. However, the Agency asserts that there is no adverse effect on employees whose Agency-ordered travel is cancelled. Further, the Agency argues that by eliminating management's discretion to cancel previously approved leave, Proposal 29 excessively interferes with management's rights to direct and assign work to employees.
2. The Union
The Union argues that Proposal 29 is consistent with Chapter 4.D. of the Agency's drug testing plan because that chapter allows the Agency the discretion to defer random drug testing when an employee is on leave or official travel status. Further, the Union asserts there is no compelling need for Chapter 4.D.
The Union also states that the right to assign work is "largely unaffected." Response to Agency's Supplementary Brief at 19. According to the Union, "[m]anagement is able to assign travel, approve or disapprove leave, and assign a urine test -- it is the timing that is affected by this arrangement." Id.
Finally, the Union asserts that Proposal 29 is a negotiable appropriate arrangement. The Union argues that the exercise of management's right to determine its security practices by sending employees for drug testing would have "a profound adverse effect on employees who are ordered to cancel their leave." Id. at 18. The Union notes that employees schedule their leave far in advance and that it may include travel plans. Further, the Union asserts that travel on behalf of the Agency requires employees to make plans to cover personal obligations and if travel is cancelled, these plans must be changed at the last minute.
B. Analysis and Conclusions
Initially, we note that the Union asserts that "this proposal was intended to apply to random drug tests." Reply Brief at 17. Because the Union's statement of intent is not inconsistent with the plain wording of Proposal 29, we find, for the purposes of this decision, that the proposal concerns only random testing. See, for example, National Federation of Federal Employees, Local 858 and U.S. Department of Agriculture, Federal Crop Insurance Corporation, Kansas City, Missouri, 39 FLRA 976, 979 (1991). We note that although the Agency asserts that Proposal 29 extends to post-accident and reasonable suspicion testing, the Agency's arguments about the proposal concern random drug tests.
We find first that Proposal 29 does not conflict with an Agency regulation for which there is a compelling need. In order to support a compelling need argument, an "agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's standards set forth in section 2424.11 of its regulations." American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 880 (1986).
In this case, the Agency has established that there is a conflict between Proposal 29 and Chapter 4.D. of the Agency's drug testing regulations. Proposal 29 would permit employees not to report for random drug testing if that testing is scheduled for a time that they are scheduled for leave or travel. Chapter 4.D. of the Agency's drug testing plan requires that an employee's first and second-line supervisors concur in a decision that an employee selected for random testing may receive a deferral from testing. We find, however, that the Agency has not demonstrated that its regulation is supported by a compelling need.
The Agency asserts that Chapter 4.D. "is 'essential' rather than merely desirable" because "the discretion to decide whether security interests will be better served by delaying leave or travel must be left [to] management." Statement of Position at 64. The Agency's statement is merely conclusory. It does not "demonstrate" how the regulation is "essential" to the accomplishment of the Agency's mission or functions. This mere assertion does not persuade us that Chapter 4.D. is "essential, as distinguished from helpful or desirable . . . ." See 5 C.F.R. § 2424.11(a). Accordingly, we find that the Agency has not established a compelling need for Chapter 4.D. of its regulations.
We also reject the Agency's argument that Proposal 29 is nonnegotiable because it conflicts with the MRO Manual. The Agency has not submitted the MRO Manual. As the Agency has not provided us with the Manual, enabling us to determine whether it is inconsistent with Proposal 29, the Agency has not sustained its burden of creating a record sufficient for making a negotiability determination. In negotiability matters, it is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982); American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 383 (1991), petition for review filed as to other matters sub nom. U.S. Department of the Army, 101st Airborne Division, Fort Campbell, Kentucky v. FLRA, No. 91-1298 (D.C. Cir. June 24, 1991).
Proposal 29 would prohibit the Agency from cancelling employees' scheduled leave or their travel on Agency business if employees are directed to report for a drug test. It is clear that an agency's direction that an employee travel on Government business constitutes the assignment of work. See, for example, Department of the Navy, Supervisor of Shipbuilding Conversion and Repair, Boston, Massachusetts and International Federation of Professional and Technical Engineers, Local 15, AFL-CIO, 33 FLRA 187, 191 (1988). It is also clear that proposals which require an agency to grant annual leave directly interfere with management's right to assign work. See, for example, American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 251-52 (1990) (Navy, Portsmouth). Moreover, the right to assign work, by directing travel or granting/denying leave requests, includes the right to rescind previously approved travel or leave. For example, National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Newington, Connecticut, 35 FLRA 513, 524 (1990).
Proposal 29 establishes substantive limitations on the Agency's rights to rescind previously-approved leave or travel. Accordingly, we find that Proposal 29 directly interferes with management's right to assign work under section 7106(a)(2)(A) of the Statute.
The right to direct employees under section 7106(a)(2)(A) of the Statute "is reflected in the supervisory function of assigning work." American Federation of Government Employees and Army and Air Force Exchange Service, 30 FLRA 909, 911 (1988). At its core, however, the right to direct employees encompasses the right to "supervise and guide them in the performance of their duties on the job." National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). As interpreted by the Agency, its right to direct employees encompasses any and all instructions given to employees. That is, consistent with the Agency's argument, all work assignments would encompass both the Agency's right to assign work and its right to direct employees. We are unwilling to interpret the right to direct so expansively. Accordingly, noting long-standing precedent holding that the right to direct employees encompasses supervision and guidance in the performance of job duties, and noting also that Proposal 29 does not address in any way such supervision or direction, we conclude that the proposal does not directly interfere with the Agency's right to direct employees.
The Agency also contends that Proposal 29 interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. We agree. Management's right to determine its internal security practices includes the right to institute a random drug testing program for employees in sensitive positions. For example, Fort Leavenworth, 38 FLRA at 1207. Proposals that prescribe substantive criteria governing management's exercise of its right to determine its internal security practices directly interfere with that right. Id. Proposal 29 would prohibit the Agency from randomly testing employees in certain situations. Prohibiting, in this manner, the Agency from conducting random tests at the time of its choosing directly interferes with management's right to determine its internal security practices under section 7106(a)(1).
The Union asserts that Proposal 29 constitutes a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. As noted previously, in order to determine whether a proposal excessively interferes with management's rights so as not to constitute an appropriate arrangement, the Authority balances the competing practical needs of employees and managers as they are affected by the proposal. KANG, 21 FLRA at 31-32.
The Union argues that cancellation of travel plans, whether for personal travel or for the Agency, is disruptive to employees. The Union asserts that Proposal 29 is intended to benefit employees by not requiring them to disrupt plans made for personal leave, including travel arrangements, or plans made "to cover personal obligations, such as family responsibilities and care of the home[,]" when employees travel on Agency business. Response to Agency's Supplementary Brief at 18. Consequently, we conclude that Proposal 29 is intended as an arrangement for adversely affected employees and, therefore, satisfies the first prong of the KANG test.
Turning to the question of whether Proposal 29 excessively interferes with the Agency's rights to determine its internal security practices and to assign work, we find that the proposal would benefit employees by making it unnecessary for them to cancel personal leave plans and plans made to cover personal obligations while on travel for the Agency. Cancellation of previously-approved leave, in particular, can significantly affect employees and can encompass financial loss as well as personal inconvenience to not only the affected employee but also other individuals, including the employees' family members. Although the Agency's drug testing plan contemplates deferral of random testing in some circumstances, it is not clear that such adverse effects as loss of nonrefundable travel expenses would constitute "compelling need necessitat[ing] a deferral," within the meaning of the plan.(3) In addition, although cancellation of official travel plans would not result in the loss of nonrefundable travel expenses, it may result in some personal inconvenience to the affected employee and other individuals such as the employees' family members.
On the other hand, the Agency's rights to determine its internal security practices and to assign work are also significantly affected. The proposal provides, in this regard, a blanket deferral of random testing. That is, the proposal would require the Agency to defer random testing in any and all circumstances where affected employees were scheduled for leave or travel. Individual circumstances, including such matters as the length of the scheduled travel or the ease with which existing travel could be rescheduled, would be irrelevant.
We note again, however, that Proposal 29 relates only to the deferral of random testing. In this regard, post-accident or reasonable suspicion testing would be unaffected. Moreover, the proposal does not address cancellation of travel or leave plans for reasons other than the scheduling of random testing. Compare Navy, Portsmouth, 37 FLRA at 252-53 (proposal requiring agency to grant annual leave requests unless employee's absence would prevent agency from accomplishing a critical job held to excessively interfere with the agency's right to assign work).
On balance, we conclude that Proposal 29 excessively interferes with the Agency's rights insofar as it concerns travel on official Government business. Although, as discussed above, the proposal would benefit employees in this situation by, at a minimum, eliminating employees' need to cancel or alter personal arrangements made in connection with such travel, other adverse effects such as the loss of nonrefundable travel deposits, are not present. We find that the negative effect on management's rights resulting from the blanket nature of the deferral of random testing encompassed by the proposal outweighs those benefits. We note in this regard, that unlike personal travel, travel on official Government business constitutes an assignment of work and is primarily for the benefit of the Government. As such, also unlike personal travel, official travel is subject to cancellation for many reasons related to management of the Agency, including reasons related to the nature and relative importance of the work to be performed while an employee is in travel status. In our view, the proposal's interference with the Agency's right to determine, on a case-by-case basis, whether to cancel official travel for an employee to undergo a drug test is excessive. Accordingly, insofar as Proposal 29 relates to official Government travel, it is nonnegotiable.
We also conclude, however, that insofar as the proposal encompasses previously approved employee leave, it does not excessively interfere with the Agency's rights. The Agency would be precluded from cancelling an employee's leave only when the employee has been designated to undergo a random drug test during the scheduled period of absence from the workplace. There has been no showing that an affected employee need be informed that he or she has been randomly selected for testing during such leave. Accordingly, we reject the Agency's assertions that the proposal "would provide employees who may be so inclined with a greater opportunity to dilute, or make other plans to tamper with, the specimen eventually provided." Supplemental Brief in Support of Statement of Position at 45. Put simply, we find no connection between the proposal and the outcome of an employee's random test. Moreover, we note the Agency's acceptance, in chapter 4.D. of its Agency plan, of delaying an employee's random drug test in circumstances involving previously approved leave.
In summary, we find that Proposal 29 does not excessively interfere with the Agency's rights to determine its internal security practices and to assign work insofar as it concerns leave. We find such excessive interference insofar as the proposal concerns Agency travel. Consequently, the proposal constitutes a negotiable appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute, with respect to leave but, with respect to travel, the proposal is nonnegotiable.
XIV. Proposal 30
Sample collections are to be accomplished in a manner compatible with employee dignity. It is technically feasible to verify that a sample has not been tampered with without subjecting the tested employee to a degrading experience.
A. Positions of the Parties
1. The Agency
Initially, the Agency contends that Proposal 30 is not a proposal. According to the Agency, "[t]he second sentence of 'proposal' 30 does not, on its face[,] 'propose' anything. Rather, it appears to state what the Union believes to be facts using undefined terms such as 'employee dignity' and 'degrading experience.'" Statement of Position at 66-67.
The Agency states that the proposal is inconsistent with its drug plan, for which it contends that a compelling need exists. Based on the Union's explanation of Proposal 30, the Agency argues that the proposal would prevent direct observation when providing specimens in most of the circumstance where the Agency's drug plan authorizes direct observation. In addition, the Agency argues that the proposal prevents compliance with the requirement in Executive Order 12564 that employees be observed directly in all situations where there is reason to believe "that a particular individual may alter or substitute the specimen to be provided." Id. at 68 (emphasis in original). The Agency argues further that the proposal is inconsistent with the HHS Guidelines.
Even if Proposal 30 is determined to be consistent with the HHS Guidelines, the Agency argues that the proposal interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency notes that section 2.2(f)(12) through (16) of the HHS Guidelines requires direct observation of the provision of a urine sample in specific circumstances. The Agency asserts that the HHS Guidelines outline minimum precautions to insure the integrity of specimens. According to the Agency, in exercising its right to determine its internal security practices, management may "take whatever additional precautions [it] deem[s] necessary to ensure the specimen will not be subject to tampering or substitution." Id. at 69. The Agency argues that "[i]t need not wait to see if an actual attempt to tamper or substitute occurs." Id. at 70. The Agency contends that Proposal 30 is not an appropriate arrangement under section 7106(b)(3) of the Statute because it excessively interferes with its right to determine its internal security practices.
2. The Union
The Union states that Proposal 30:
calls for a joint statement recognizing the fact that collection of urine samples is to be done in a manner that protects employee privacy and dignity. The HHS Guidelines regarding drug testing and sample collection call for privacy, unless there is reason to believe that an employee may tamper with a sample. The Guidelines call for testing the temperature of the urine sample and observing the color of the sample as a means of reviewing the integrity of the sample. The proposal does not prevent management from observing the provision of the sample if there is reason to believe that tampering might occur.
Petition for Review at 9-10. The Union contends that Proposal 30 is a specific "statement of policy and a statement of fact which do not conflict with the requirements of [the Agency's drug testing plan]." Reply Brief at 17. The Union also asserts that the proposal is consistent with the Executive Order and the HHS Guidelines.
The Union also argues that Proposal 30 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union argues that the exercise of management's right to determine its internal security practices adversely affects employees, particularly when employees are required to provide urine specimens under direct observation. According to the Union, the proposal "does not preclude direct observation, it merely states that sample collections are to be accomplished in a manner compatible with employee dignity." Response to Agency's Supplementary Brief at 19. Additionally, the Union states that the proposal "does not automatically preclude direct observation, because it is understood that . . . direct observation can occur when there is 'reason to believe' that a sample may be tampered with." Id. at 19-20.
B. Analysis and Conclusions
Initially, we find that the wording of Proposal 30, its intended purpose as described by the Union, and the record as a whole provide us with sufficient information on which to base a negotiability determination. Accordingly, we reject the Agency's assertion that we should dismiss the Union's petition for review as to this proposal based on its asserted lack of specificity.
Proposal 30 would require the Agency to collect specimens "in a manner compatible with employee dignity," and not subject "the tested employee to a degrading experience." The Union states that the proposal "does not prevent management from observing the provision of the sample if there is reason to believe that tampering might occur." Petition for Review at 9-10. Furthermore, the Union asserts that its proposal "does not automatically preclude direct observation, because it is understood that higher authority has stated that direct observation can occur when there is 'reason to believe' that a sample may be tampered with." Response to Agency's Supplementary Brief at 19-20. The Union's explanation is consistent with the proposal's wording, which does not require or prohibit the Agency from taking any particular actions. Accordingly, we will adopt the Union's interpretation for purposes of our decision.
Interpreted in this manner, we reject the Agency's argument that the proposal would permit direct observation only when the Agency has evidence that an employee had previously tampered with a sample. Rather, as the Union points out, direct observation would be authorized when management has reason to believe that an employee may alter or substitute the specimen. Accordingly, we find that Proposal 30 is consistent with the Executive Order, the FPM Letter, and the HHS Guidelines. See generally, GSA, 41 FLRA at 733-36.
Similarly, we reject the Agency's assertion that the proposal is nonnegotiable because it conflicts with an Agency regulation for which a compelling need exists. To support its assertion, the Agency relies on the portion of its Agency-wide plan set out at section 4.H. addressing direct observation of the provision of a urine sample. (4) That portion of the plan provides the following, in pertinent part:
The employee or applicant to be tested will provide his or her sample in a rest room stall or similar enclosure so that the employee is not being observed while providing the sample. Observation is permitted, however, when there is reason to believe a particular individual may alter or substitute the specimen provided. Reasons to believe a person may alter or substitute the specimen include, but are not limited to:
1. The individual is being tested pursuant to . . . reasonable suspicion testing;
2. The individual has previously been found . . . to be an illegal drug user;
3. The individual has previously tampered with a sample;
4. Facts and circumstances suggest that the individual--
a. is an illegal drug user;
b. is under the influence of drugs at the time of the test; or
c. has equipment or implements capable of tampering or altering urine samples.
Petition for Review Exhibit 2 at 19-20.
As discussed previously in connection with Proposal 29, to sustain an argument that a proposal is nonnegotiable because it conflicts with an agency regulation for which there is a compelling need, the agency must, initially, identify an agency regulation with which the disputed proposal conflicts. We find no such conflict here. First, there is no assertion that the Agency's drug testing plan requires, or even contemplates, the collection of urine samples in a manner which is incompatible with employee dignity. Secondly, as discussed above, the Union interprets the proposal, which interpretation we adopt, as enabling the Agency to observe directly the provision of urine samples in situations where the Agency has reason to believe that the affected employee may alter or tamper with the sample. As such, there is no conflict with the Agency's drug testing plan.
The Agency argues that, even if the proposal is consistent with the HHS Guidelines, Proposal 30 interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. For the following reasons, we disagree with the Agency's argument.
In Department of Education, section B of Proposal 5 required that management accord employees privacy when providing urine specimens unless, consistent with the union's statement of intent, management had a "'reasonable suspicion . . . that an employee may attempt to invalidate or falsify the urine specimen.'" 38 FLRA at 1094 (citation omitted). The agency in Department of Education argued, as the Agency does here, that the disputed proposal interfered with management's right to determine its internal security practices. In responding to the agency's argument, we noted that it was unnecessary to determine whether the disputed proposal interfered with a management right under section 7106(a)(1) of the Statute because:
[i]f the decision to assign an observer to monitor an employee urine sample does not constitute the exercise of management's right under section 7106(a)(1), section B is negotiable because it would not directly interfere with the exercise of a management right . . . .
On the other hand, if the decision to assign an observer constitutes the exercise of management's right under section 7106(a)(1), the limitation imposed on the exercise of that right by the incorporation of the Executive Order standard in section B would, . . . directly interfere with that right. However, section B would nevertheless be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. . . . [T]he benefit to employees of the protection afforded their privacy by the application of the Executive Order standard outweighs any burden on management's right to act, under section 7106(a)(1), without regard to the requirements of the Executive Order.
Id. at 1098-99.
Using the framework set out in Department of Education, we find it unnecessary here to determine whether Proposal 30 directly interferes with the exercise of management's right to determine its internal security practices under section 7106(a)(1). Applying the framework set forth in KANG, 21 FLRA 24, 31-33, we conclude that even if Proposal 30 directly interferes with the exercise of that right, it is negotiable as an appropriate arrangement. See GSA, 41 FLRA at 737-39.
As discussed extensively in GSA, 41 FLRA at 738-39, the Executive Order, the Guidelines, and the FPM Letter indicate a clear preference for employee privacy during testing. In fact, all three issuances require such privacy unless there is reason to believe that employees may tamper with specimens. See also NTEU v. Von Raab, 109 S. Ct. at 1394 n.2 (Court stated that disputed drug-testing program did not "carry the grave potential for 'arbitrary and oppressive interference with the privacy and personal security of individuals[]'" because, among other things, "[t]here is no direct observation of the act of urination, as the employee may provide a specimen in the privacy of a stall.") (citations omitted). As noted previously, Proposal 30 is fully consistent with the principle of employee privacy and with the portions of the Executive Order, the FPM Letter, and the HHS Guidelines addressing it.
Additionally, consistent with the preference in the Executive Order, the FPM Letter, and the HHS Guidelines for employee privacy, direct observation of an employee while that employee provides a urine specimen is a direct and significant intrusion on the employee's privacy:
There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.
Skinner, 109 S. Ct. at 1413 (quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987)). See also NTEU v. Von Raab, 109 S. Ct. at 1390 (Court stated that drug tests "invade reasonable expectations of privacy."). To the extent that the decision directly to observe an employee providing a urine sample constitutes the exercise of the Agency's right to determine its internal security practices, the intrusion on employees' privacy results from the exercise of the right and, in our view, constitutes an adverse effect under section 7106(b)(3) of the Statute.
Proposal 30 preserves management's right to observe employees directly when there is reason to believe that the employees may alter or substitute the specimens. Proposal 30 also ensures that employees are afforded privacy in accordance with the expressed regulatory preference. We conclude that the benefit afforded to employees by Proposal 30 outweighs any interference with management's right under section 7106(a)(1).
Accordingly, we conclude that Proposal 30 is negotiable. If the decision to observe employees while they provide urine specimens does not constitute the exercise of management's right to determine its internal security practices, Proposal 30 is negotiable because it would not directly interfere with the exercise of that management right. Even if such decision constitutes the exercise of management's right to determine its internal security practices, however, Proposal 30 would not excessively interfere with that right and would, therefore, be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
XV. Proposal 31
Employees who are sent for drug testing will not be subject to any kind of search or frisk procedures and they will not be required to disrobe with the exception of outer garments prior to providing urine samples.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 31 is nonnegotiable under section 7117(a)(1) and (2) of the Statute because it is inconsistent with Executive Order 12564 and the Agency's drug testing plan for which the Agency asserts there is a compelling need. The Agency argues that the proposal prevents it from acting to assure the integrity of urine samples.
The Agency also claims that the proposal interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency asserts that section 7106(a)(1) authorizes it to "take whatever additional precautions [it] deem[s] necessary to ensure the specimen will not be subject to tampering or substitution." Statement of Position at 69. As an example of the actions that may be necessary to ensure the integrity of the specimen, the Agency describes the following:
[T]here could be occasions where removal of outer garments gives collection site personnel reason to believe (suspicious bulges, outlines, etc.) that devices or caches for altering or substituting for the specimen are concealed beneath the employee's other garments. This situation would then be brought to the attention of agency personnel who would be authorized to conduct a "pat-down" search, or if the employee refused to permit such a search, to directly observe provision of the specimen.
Id. at 69-70.
The Agency also asserts that Proposal 31 interferes with its right to discipline under section 7106(a)(2)(A) of the Statute. The Agency contends that the prohibition on searching an employee, when observation or other information provides a reason to believe that the employee has a device or material to be used in tampering with or altering the specimen, bars management from imposing discipline for the misconduct involved. The Agency claims that the Union "ignores the fact that efforts to tamper with or substitute for the specimen constitutes a separately punishable offense which may be investigated no less diligently than any other offense involving contraband." Id. at 72-73.
In addition, the Agency urges the Authority to
reject the Union's invitation here to have it plow new constitutional ground so as to provide a basis for finding that the proposal does nothing more than require adherence to the law. The 'law' in this area is obviously in the process of development and falls well outside the Authority's area of expertise.
Supplementary Brief at 36-37. In support, the Agency notes the Supreme Court's observation, in Califano v. Sanders, 430 U.S. 99, 109 (1977), that "'Constitutional questions obviously are unsuited to resolution in administrative hearing procedures.'" Id. at 37.
2. The Union
Noting that section 2.2(f)(4) of the HHS Guidelines requires employees to surrender their outer garments, purses, and brief cases at the collection site, but does not require any kind of physical search, the Union contends that Proposal 31 is consistent with the HHS Guidelines and does not interfere with the Agency's ability to monitor the provision of urine specimens. The Union asserts that "[t]he Agency's concern with the possibility of tampering with the sample is addressed by its ability to collect a specimen under direct observation." Reply Brief at 18.
The Union also argues that Proposal 31 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union contends that the proposal "is designed to ameliorate the effects of the Agency's exercise of its right to establish internal security practices, by precluding search or frisk procedures or disrobing." Response to Agency's Supplementary Brief at 20. The Union claims that the proposal "is completely consistent with HHS Guidelines," and, therefore, the Agency's rights "are not undermined to an excessive degree." Id.
B. Analysis and Conclusions
Proposal 31 concerns the measures the Agency may take to insure the integrity of the specimen provided by an employee being tested for drugs. The proposal prevents the Agency from requiring, as part of its effort to assure the integrity of the specimen provided, that an employee submit to a search, frisking, or, except for outer garments, disrobing. For the following reasons, we find that the proposal is negotiable.
1. The Legal and Regulatory Framework
Section 4(c) of the Executive Order states that "[p]rocedures for providing urine specimens must allow individual privacy, unless the agency has reason to believe that a particular individual may alter or substitute the specimen to be provided." The Executive Order neither provides any examples of situations where there is such a "reason to believe" nor does it specify what measures may be taken to avert the alteration or substitution. See generally GSA, 41 FLRA at 733-36.
The FPM Letter provides more specific guidance to agencies. Specifically, section 4.g provides, in relevant part:
g. Privacy in Drug Testing. Agency drug testing procedures under E.O. 12564 must allow individual privacy unless the agency has reason to believe that a particular individual may alter or substitute the specimen to be provided. Agencies should refer to the HHS Mandatory Scientific and Technical Guidelines for Federal Employee Drug Testing Programs for the specific procedures to be followed in conducting drug tests.
. . . .
(2) Generally, an employee or applicant may be required to provide a sample under observation only if there is reason to believe that the employee or applicant may alter or substitute the urine specimen. For example, employers may wish to require observation when facts and circumstances suggest that the person to be tested: (a) is an illegal drug user; (b) is under the influence of drugs at the time of the test; (c) has previously been confirmed by the agency to be an illegal drug user; (d) is seen to have equipment or implements used to tamper with urine samples; (e) has recently been determined to have tampered with a sample.
Section 2.2(f) of the HHS Guidelines states that "[t]he following minimum precautions shall be taken to ensure that unadulterated specimens are obtained . . . ." Among the "minimum precautions" is a request by the collection site person that the individual to be tested "remove any unnecessary outer garments such as a coat or jacket that might conceal items or substances that could be used to tamper with or adulterate the individual's urine specimen." Section 2.2(f)(4). In addition, the Guidelines require that, except for an individual's wallet, personal belongings, including a purse or brief case, remain with the outer garments. When the sample provided is outside a specified temperature range, section 2.2(f)(13) requires another specimen to be collected under direct observation.
Neither the Executive Order, the FPM Letter, nor the HHS Guidelines requires personal searches of any kind to ensure the integrity of samples provided. Accordingly, we find that Proposal 31 is consistent with the Executive Order, the FPM Letter, and the HHS Guidelines.
Similarly, we reject the Agency's argument that Proposal 31 is nonnegotiable because it conflicts with the Agency-wide drug testing plan, for which a compelling need exists. The Agency relies, in this connection, on the same portion of the plan, concerning direct observation of the provision of urine samples, discussed in connection with Proposal 30. See also n.4. That section does not address, in any way, searching or frisking employees. Accordingly, the Agency has not demonstrated that Proposal 31 conflicts with the Agency's plan.
2. Internal Security Practices
For the reasons discussed extensively in connection with Proposal 30, as well as those set forth in GSA, 41 FLRA at 737-39, we find it unnecessary here to determine whether Proposal 31 directly interferes with the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See also Department of Education, 38 FLRA at 1094. Applying the principles set forth in KANG, 21 FLRA at 31-33, we conclude that even if Proposal 31 directly interferes with the exercise of that right, it is negotiable as an appropriate arrangement.
More specifically, under the KANG principles, Proposal 31 is an arrangement for employees adversely affected by the Agency's exercise of its right to test employees for drugs. It benefits employees by preventing the intrusion on their privacy incident to frisking and disrobing. As discussed above, we find that this benefit to employees outweighs the burden imposed on the Agency's exercise of its right to test for drugs.
We note again, in this regard, that the Executive Order, the FPM Letter, and the HHS Guidelines provide for direct observation of the provision of a urine sample when management has reason to believe that the sample may be altered or substituted. The proposal does not prevent the Agency from directly observing an employee to ensure the sample's integrity. In this connection, the Union states that "[t]he Agency's concern with the possibility of tampering with the sample is addressed by its ability to collect a specimen under direct observation." Reply Brief at 18. The proposal's interference with management's right, therefore, is not significant when weighed against the proposal's protection of employees' privacy interest.
Indeed, the Agency itself suggests that searches are not essential to assuring that tampering or substitution will not occur. In describing the circumstances where it would conduct a search, based on a belief that an employee possessed implements or equipment for altering the sample, the Agency states that "[t]his situation would then be brought to the attention of agency personnel who would be authorized to conduct a 'pat-down' search, or if the employee refused to permit such a search, to directly observe provision of the specimen." Statement of Position at 70. If an individual employee, under the Agency's procedures, can prevent a personal search simply by declining to submit to it, then we must conclude that the Agency does not view searches as central to the protection of the integrity of its drug testing program. Accordingly, we find that the proposal does not excessively interfere with management's right to determine its internal security practices.
For these reasons, we conclude that Proposal 31 is negotiable. The proposal is consistent with Executive Order 12564, FPM Letter 792-19, and the HHS Guidelines. If the decision to search employees before they provide urine specimens does not constitute the exercise of management's right to determine its internal security practices, Proposal 31 is negotiable because it would not directly interfere with the exercise of that management right. Even if such decision constitutes the exercise of management's right to determine its internal security practices, however, Proposal 31 would not excessively interfere with that right and would, therefore, be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
XVI. Proposal 32
Reasonable suspicion testing for a pattern of abnormal conduct or erratic behavior will occur only when such conduct or behavior reasonably appears related to illegal drug use.
A. Positions of the Parties
1. The Agency
The Agency claims that Proposal 32 is inconsistent with section 3(c) of Executive Order 12564 and the Agency plan, for which it contends that a compelling need exists, because the proposal limits the circumstances in which reasonable suspicion testing could occur. The Agency claims that the Executive Order and the Agency's drug testing plan provide for reasonable suspicion drug testing in a broader range of circumstances than the proposal permits. The Agency also argues that the proposal is inconsistent with FPM Letter 792-19, because the FPM Letter authorizes reasonable suspicion testing based on circumstances unrelated to conduct or behavior on the job.
The Agency also claims that Proposal 32 directly interferes with management's rights to determine its internal security practices and to discipline employees under section 7106(a)(1) and (a)(2)(A) of the Statute. Moreover, the Agency claims that the proposal excessively interferes with those rights because it would "preclud[e] management from acting unless it reasonably appears that the conduct or behavior stems from drug use rather than other possible sources." Supplementary Brief at 38.
2. The Union
According to the Union, Proposal 32 is consistent with the purpose of the Agency-wide drug testing plan. The Union asserts that the Agency's plan "states that mere 'hunches' are not sufficient to meet the standard. Anything that is not apparently related to illegal drug use would be no more than a 'hunch.'" Reply Brief at 18. The Union contends that the proposal also is designed to protect employees from being tested when there is no reason to believe that employees' behavior is drug related. Additionally, the Union argues that the proposal does not directly or excessively interfere with management's rights to determine its internal security practices or to discipline employees.
B. Analysis and Conclusions
Section 3(c)(1) of the Executive Order authorizes drug testing of an employee "[w]hen there is a reasonable suspicion that any employee uses illegal drugs[.]" The Executive Order does not explain what constitutes "reasonable suspicion." As such, Proposal 32 does not conflict with the Executive Order.
Section 3.c of FPM Letter 792-19, in discussing reasonable suspicion, states that "'reasonable suspicion' is an articulable belief that an employee uses illegal drugs drawn from specific and particularized facts and reasonable inferences from those facts." Reasonable suspicion, according to section 3.c(2)ii of the FPM Letter, may be based on, among other things, "a pattern of abnormal conduct or erratic behavior[.]"
We conclude that Proposal 32 is consistent with section 3.c of the FPM Letter. In our view, that section, when read in conjunction with subsection 3.c(2)ii, does not authorize drug testing solely on the basis of a pattern of abnormal conduct or erratic behavior. Rather, to require any "reasonable suspicion" drug test under section 3.c, management must have "an articulable belief that an employee uses illegal drugs drawn from specific and particularized facts and reasonable inferences from those facts." Therefore, in our view, when reasonable suspicion testing is based on "a pattern of abnormal conduct or erratic behavior," under subsection 3.c(2)(ii), management must have "an articulable belief" that the pattern of conduct or behavior is caused by illegal drug use.
Proposal 32 requires that reasonable suspicion testing for a pattern of abnormal conduct or behavior be based on management's conclusion that the conduct or behavior is reasonably related to illegal drug use. The management conclusion required by Proposal 32 is the same as the "articulable belief" requirement in the FPM Letter. Accordingly, we find that the proposal is consistent with the FPM Letter.
Similarly, we find no conflict between Proposal 32 and the Agency's drug testing plans. We note that Chapter 4.A.3(2) of the Agency-wide plan provides that reasonable suspicion testing may be based on "[a] pattern of abnormal conduct or erratic behavior[.]" Petition for Review, Exhibit 2 at 15. It is clear, however, that the reasonable suspicion referred to is reasonable suspicion of drug use. Indeed, section X.A. of the OBD plan, entitled "Reasonable Suspicion Testing," applies, by its terms, "[i]f an employee is suspected of using illegal drugs, consistent with Chapter 4.A.3 of the [Agency-wide] Plan[.]" Petition for Review, Exhibit 3 at 15. As Proposal 32 merely expresses the link between abnormal conduct or erratic behavior which is implicit in reasonable suspicion testing itself, we find no conflict between the proposal and the Agency's plans. Therefore, there is no need to determine whether there is a compelling need for the plans.
Management's right to conduct drug testing is a component of its right, under section 7106(a)(1) of the Statute, to determine its internal security practices. For example, Bureau of Reclamation, 39 FLRA at 1527. Proposals imposing substantive criteria on management's ability to administer drug testing programs "impermissibly limit the exercise of management's right to determine its internal security practices . . . ." Department of Education, 38 FLRA at 1076. Based on the reasoning in Department of Education, Proposal 32 directly interferes with the Agency's right to determine its internal security practices because it conditions drug testing based on erratic behavior or abnormal conduct on a reasonably apparent relationship between the behavior or conduct and illegal drug usage. We reject, however, the Agency's argument that the proposal directly interferes with its right to discipline employees. The proposal addresses only the standards by which employees are referred to drug testing. It does not address, or limit in any way, the Agency's right to discipline.
However, applying the principles set out in KANG, we find that Proposal 32 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. The benefit afforded to employees, in protecting their privacy by authorizing drug testing for conduct or behavior only when there is a reasonably apparent relationship to drug abuse, is an arrangement for employees adversely affected by management's right to determine its internal security practices. In this respect, by limiting the number of drug tests to which an employee would be required to submit the proposal would, thereby, reduce: (1) the potential for an employee's privacy being invaded by a drug test, (2) the possibility of false positive drug test results, and (3) the likelihood that employees would be disciplined as a result of confirmed positive drug tests. In addition, protecting employees from being subjected to drug testing when their unusual conduct or behavior reasonably cannot be attributed to illegal drug usage confers a significant benefit on those employees. On the other hand, the proposal imposes a negligible burden on management's right to determine its internal security practices because, as such, the proposal imposes no greater limitation on the Agency's right to act than that already established by the FPM Letter. Accordingly, Proposal 32 does not excessively interfere with the Agency's right and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Department of Education at 1079.
XVII. Proposal 35
Only drug tests which can show on the job impairment shall be used.
A. Positions of the Parties
1. The Agency
The Agency claims that the intent of Proposal 35 is "to permit drug testing only where management can demonstrate on-the-job impairment." Supplementary Brief at 38. According to the Agency, the proposal violates Executive Order 12564, which seeks to eliminate illegal drug use, either on or off duty, by Federal employees. The Agency also argues that the proposal conflicts with the HHS Guidelines because the tests prescribed by the Guidelines "do not measure impairment, whether on or of[f] the job, but, rather whether the individual has used illegal drugs in the recent past." Statement of Position at 78. In addition, the Agency asserts that Proposal 35 is inconsistent with its obligation under FPM Letter 792-19 to initiate some form of disciplinary action against employees identified as illegal drug users through direct observation, criminal conviction, the employee's own admission, or verified positive results of the Agency's drug testing program.
The Agency also argues that Proposal 35 interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency characterizes the proposal's effect as "no different than those proposals limiting agency drug testing to circumstances where there is 'probable cause,' based on an employee's conduct or behavior while on duty, to believe he or she is using illegal drugs which the Authority found non-negotiable . . . ." Id. at 79. According to the Agency, the Union "is simply attempting to achieve exactly the same effect obliquely by requiring that the tests used be able to detect drug use in a circumstance where the employer would otherwise have 'probable' or 'reasonable' cause to believe the employee was using illegal drugs, rather than by directly prohibiting tests unless there is 'probable cause.'" Id. (emphasis in original). In addition, the Agency contends that the proposal violates its right to discipline under section 7106(a)(2)(A) of the Statute by limiting its ability to conduct disciplinary investigations.
2. The Union
The Union argues that Proposal 35 is negotiable, because:
employees may be tested, if they meet the standard of showing on-the-job impairment. All requirements with respect to Federal employment must be linked to the employment. The Agency is not allowed to interfere with an employee's off-the-job activities, unless those activities have an impact on or interfere with the work or mission of the Agency. The proposal embodies a reasonable standard for drug testing.
Reply Brief at 19.
The Union also contends that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union states that the adverse impact on employees addressed by the proposal includes interference with the employee's work, embarrassment, and psychological harm. According to the Union, Proposal 35 "is designed to ameliorate the broad-based use of reasonable suspicion testing through tailoring the program to situations which reasonably appear to relate to illegal drug use, as opposed to some other psychological or emotional problem." Response to Agency's Supplementary Brief at 21. In the Union's view, under Proposal 35, "[m]anagement may still conduct reasonable suspicion testing, so any interference is not excessive." Id.
B. Analysis and Conclusions
The HHS Guidelines, promulgated by the Secretary of Health and Human Services pursuant to section 4(d) of Executive Order 12564, "impose mandatory requirements on a Government-wide basis . . . ." 53 Fed. Reg. 11,979. The HHS Guidelines prescribe the types of tests to be performed as part of the Federal drug testing program. Section 2.4(e)(1) of the HHS Guidelines provides that the initial test of a urine specimen "shall use an immunoassay which meets the requirements of the Food and Drug Administration for commercial distribution." Section 2.4(f)(1) of the Guidelines prescribes that an initial finding that a specimen is positive "shall be confirmed using gas chromatography/mass spectrometry (GC/MS) techniques . . . ." The Guidelines do not specify that either the initial or the confirmatory test be able to assess whether the drug usage is such as to impair performance on the job.
Proposal 35 prohibits the use of any drug test that is incapable of showing impairment of work performance. It is undisputed that the tests prescribed by the Guidelines do not measure impairment. Therefore, Proposal 35 would prohibit the use of the drug tests mandated by the HHS Guidelines.
As Proposal 35 would prohibit the use of tests that are mandated by the HHS Guidelines, the proposal is inconsistent with the HHS Guidelines and is nonnegotiable under section 7117(a)(1) of the Statute. In view of our decision, it is unnecessary to reach the other arguments raised by the parties. See Bureau of Reclamation, 39 FLRA at 1518.
XVIII. Proposal 39
Any employee who successfully challenges the accuracy of a positive result shall be reimbursed for the cost associated with challenging the test. Any employee who tests negative or successfully challenges the accuracy of a positive test shall receive from the employer additional pay, or some other recompense for the mental duress associated with having been subjected to the test.
A. Positions of the Parties
1. The Agency
The Agency argues that Proposal 39 is nonnegotiable because it: (1) is inconsistent with the Back Pay Act; and (2) does not constitute a condition of employment, as defined in section 7103(a)(14)(C) of the Statute, because it is "inconsistent with the Tort Claims Act and other Federal claims statutes." Statement of Position at 87. The Agency also contends that the proposal is not an appropriate arrangement because the circumstances where agencies may pay damages and costs incurred by employees are limited by law.
2. The Union
The Union argues that the Authority found a similar proposal negotiable in Rock Island I, 30 FLRA at 1067, 1071-73 (Proposal 9). Additionally, the Union asserts that Proposal 39 ameliorates the effects of management's rights to determine its security practices and to discipline employees and, therefore, is an appropriate arrangement under section 7106(b)(3) of the Statute. In support of that assertion, the Union contends that an employee who has a false positive test for drug use deserves to be compensated for the out-of-pocket expenses associated with challenging "the Agency's intrusive and inaccurate testing." Response to Agency's Supplementary Brief at 23.
B. Analysis and Conclusions
We conclude that the Union has not sustained its burden of creating a record which is sufficient for us to make a reasoned determination on the negotiability of the first sentence of Proposal 39. We also conclude that the second sentence of the proposal is nonnegotiable because it concerns matters that are specifically excluded from the definition of "conditions of employment" by section 7103(a)(14)(C) of the Statute.
1. First Sentence
The first sentence of Proposal 39 seeks to provide payments to employees for the costs associated with successfully challenging a positive drug test result.
As to the requirement that employees be reimbursed for certain costs, the Back Pay Act, 5 U.S.C. § 5596, authorizes the restoration of the pay, allowances, or differentials which an aggrieved employee normally would have earned but for the occurrence of an unwarranted personnel action. Under certain circumstances reasonable attorney fees may be awarded under the Back Pay Act.
In this case, we are unable to determine whether the costs referred to in the first sentence of Proposal 39 are covered by the Back Pay Act. The proposal does not specify the costs "associated with challenging [a drug] test," for which employees would be entitled to reimbursement from the Agency. Furthermore, the Union does not cite any statutory authority for such reimbursements. Compare Overseas Education Association and Department of Defense Dependent Schools, 29 FLRA 485, 486, 488 (1987) (proposal requiring agency reimbursement of training expenses permitted by 5 U.S.C. chapter 41 found negotiable), enforced sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1734 (D.C. Cir. June 22, 1990) (order).
As neither the proposal nor the record specifies the obligations the Agency would assume if it were to agree to make the reimbursements required by the first sentence of Proposal 39, we conclude that the proposed wording is not sufficiently clear to indicate the first sentence's purpose and effect and is not sufficiently specific to provide a basis for determining the first sentence's negotiability. See American Federation of Government Employees, Local 1857 and Sacramento Air Logistics Center, McClellan Air Force Base, California, 34 FLRA 909, 914-15 (1990).
It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet this burden acts at its peril. Bureau of Reclamation, 39 FLRA at 1520. As the Union has not specified the nature of the costs encompassed by the first sentence, we find that the Union has not sustained its burden of creating a record which is sufficient for the purpose of making a negotiability determination concerning the first sentence of the proposal. Accordingly, the petition for review of the first sentence of Proposal 39 is dismissed. National Association of Government Employees, Local R14-32 and Department of the Army, HG, U.S. Army Training Center Engineering and Fort Leonard Wood, Fort Leonard Wood, Missouri, 20 FLRA 501, 502 (1985) (Authority dismissed proposal which required agency to reimburse employees for additional expenses relating to day care where proposal did not specify particular expenses for which employees would receive reimbursement).
Finally, we find misplaced the Union's reliance on Proposal 9 in Rock Island I to support its claim that the first sentence is negotiable. First, unlike the first sentence of Proposal 39, Proposal 9 in Rock Island I specified the costs for which reimbursement was sought. More importantly, in Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989), the court found Proposal 9 to be inconsistent with the HHS Guidelines and, consequently, concluded that the proposal was nonnegotiable. Following the court's remand of Rock Island I, the Authority rescinded the order that the agency negotiate over Proposal 9. See Rock Island III, 35 FLRA at 938-39.
2. Second Sentence
The second sentence of Proposal 39 requires the Agency to provide employees who either test negative or successfully challenge the accuracy of a positive result with "additional pay, or some other recompense for the mental duress associated with having been subjected to the test." We conclude that the second sentence concerns matters that are excluded from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute because they are specifically provided for by law.
First, to the extent that the second sentence seeks additional pay, we note that the bargaining unit consists of General Schedule (GS) and Wage Grade (WG) employees. Office of Employee and Labor Relations, U.S. Office of Personnel Management, Union Recognition in the Federal Government 391 (1989). The wage rates of General Schedule employees are established pursuant to 5 U.S.C. §§ 5331-5338, and the wage rates of prevailing rate employees (including WG employees) are established in accordance with a system set forth in 5 U.S.C. §§ 5341-5349. Consequently, the requirement in Proposal 39 that affected employees be provided additional pay concerns matters specifically provided for by statute and, therefore, is excluded from the definition of conditions of employment. See National Association of Government Employees, Local R1-109 and Veterans Administration, Veterans Administration Medical Center, Newington, Connecticut, 36 FLRA 175, 179 (1990) (NAGE, Local R1-109); National Association of Government Employees, Local R4-26 and Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 118, 141-42 (1991).
The second sentence of Proposal 39 also requires the Agency to provide the employees with "recompense for the mental duress associated with having been subjected to the test." Employees seeking damages from the Government in such circumstances can file claims pursuant to the Back Pay Act; the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.; and other Federal claims statutes. Accordingly, to the extent that this portion of the second sentence requires the Agency to provide the employees with recompense for mental duress, it also concerns matters which are specifically provided for by law. Therefore, as the second sentence concerns matters excluded from the definition of conditions of employment by section 7103(a)(14)(C) of the Statute, the second sentence is nonnegotiable.
3. Appropriate Arrangement
Finally, we reject the Union's contention that Proposal 39 is negotiable because it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. As to the first sentence of Proposal 39, we have previously rejected the Union's assertion that the first sentence is negotiable based on our conclusion that the record is not sufficient to determine its negotiability.
As to the second sentence of Proposal 39, we note that section 7106(b)(3) applies only to management's exercise of its rights under section 7106. Consequently, the section 7106(b)(3) test is inapplicable to the second sentence because that sentence is nonnegotiable not as a result of its interference with management's rights under section 7106, but because it concerns matters which are specifically provided for by law and, therefore, are excluded from the definition of conditions of employment. See NAGE, Local R1-109, 40 FLRA at 141-42.
XIX. Proposal 42
The Agency agrees that the use of illegal drugs indicates a health problem for which reasonable accommodation will be made.
A. Positions of the Parties
1. The Agency
The Agency contends that drug abusers in positions identified for random drug testing are not "handicapped," within the meaning of 29 U.S.C. § 706(8)(B) and 42 U.S.C. § 290ee-1(b)(1) and (2). Consequently, the Agency asserts, all Agency employees subject to random testing "are excluded from the coverage of the laws and regulations providing for reasonable accommodation of handicapped employees insofar as the alleged handicap [r]ests on drug use." Statement of Position at 90. The Agency also asserts that the proposal is inconsistent with section 5(a) of Executive Order 12564, which, according to the Agency, requires that some adverse action be taken against an employee using illegal drugs unless the employee voluntarily identifies himself or herself as a drug user prior to being identified by other means and complies with other conditions contained in that section. In addition, the Agency argues that "since the proposal provides no exception, it would also be inconsistent with section 5(d) of [the Executive Order] which requires agencies to remove all employees who (1) refuse counselling, or (2) are found to be using illegal drugs again after completing counselling." Id. at 91.
The Agency also asserts that the proposal interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. The Agency contends that Proposal 42 "is no different in its intended effect than those where the employee's enrollment in a drug counselling program would preclude management from taking disciplinary action." Id. at 91-92. The Agency notes that the Authority has held such proposals nonnegotiable.
In addition, the Agency asserts that the proposal is inconsistent with the Agency's drug testing plan and that there is a compelling need for the plan. Under its plan, the Agency points out, the Agency head "has exercised his authority under 42 U.S.C. § 290dd-(c)(1) and (2) to exclude all employees in TDPs within the [Agency] from coverage of the laws and regulations which provide for reasonable accommodation of 'otherwise qualified' handicapped employees insofar as their claim of handicap rests on illegal drug use." Id. at 92. Finally, the Agency argues that Proposal 42 is not an appropriate arrangement under section 7106(b)(3) of the Statute because it violates the Executive Order and FPM Letter 792-19.
2. The Union
The Union contends that the identification in FPM Supplement 792-2 of alcoholism and drug abuse as treatable health problems indicates that "the requirements of reasonable accommodation that are mandated by the Rehabilitation Act apply." Reply Brief at 21. The Union argues that "the Executive Order itself incorporates the concept of reasonable accommodation, apart from the Rehabilitation Act." Id. According to the Union, that "concept" is found in the Executive Order's "provision for employees participation in a rehabilitation program, without the imposition of disciplinary action, if the employee remains drug free." Id.
The Union contends that there is no interference with management's right to discipline because "[o]nce accommodation has been provided, and the employee persists in illegal drug use, discipline may be appropriate." Id. The Union denies that the proposal conflicts with the Agency's drug testing plan, contending that the Agency's designation of TDPs "does not preclude or conflict with reasonable accommodation, i.e., the chance for an employee to rehabilitate himself." Id. at 22.
Finally, the Union argues that Proposal 42 is an appropriate arrangement under section 7106(b)(3) of the Statute. Noting that "the Federal government acknowledges that the use of illegal drugs indicates a health problem," the Union contends that the reasonable accommodation required by the proposal "is the type of arrangement which is appropriate for employees who will feel the effects of the Agency's drug testing program." Response to Agency's Supplementary Brief at 23.
B. Analysis and Conclusions
Proposal 42 requires the Agency to make a reasonable accommodation for an employee who is an illegal drug user. The proposal does not explain the meaning of the term "reasonable accommodation." However, the Union asserts that:
[i]t is certainly possible, and suggested by Section 5(c) of the Executive Order, that employees found to have used illegal drugs should be transferred from their sensitive positions. Once that has occurred, accommodation can be made consistent with the Rehabilitation Act. Moreover, the Executive Order itself incorporates the concept of reasonable accommodation, apart from the Rehabilitation Act. This is evidenced by the Order's provision for employees participation in a rehabilitation program, without the imposition of disciplinary action, if the employee remains drug free.
Reply Brief at 21. Based on the Union's explanation, we construe the proposal as obligating the Agency to offer rehabilitative services to an illegal drug user and refrain from imposing discipline if that employee remains drug free.
Under section 5(b) of Executive Order 12564, agencies are not required to discipline an employee who is an illegal drug user if the employee: (1) voluntarily identifies himself as such or is so identified as the result of a voluntary drug test; (2) obtains counseling or rehabilitation through an Employee Assistance Program; and (3) subsequently refrains from use of illegal drugs. See also FPM Letter 792-19, section 5.d (providing an exception from the requirement that discipline be imposed for "employees who voluntarily identify themselves as users of illegal drugs, obtain appropriate counseling and rehabilitation, and thereafter refrain from illegal drug use"); Mather AFB, 40 FLRA at 872.
On the other hand, the Executive Order requires, with the exception noted above, that "[a]gencies shall initiate action to discipline any employee who is found to use illegal drugs . . . ." See section 5(b). Section 5.d of the FPM Letter also states, with the exception noted, that "agencies are required to initiate some form of disciplinary action against employees who are found to use illegal drugs." Thus, both the Executive Order and the FPM Letter mandate some form of discipline for employees, identified as illegal drug users through other than voluntary means.
Proposal 42 makes no distinction between illegal drug users who identify themselves by voluntary means and those identified through other than voluntary means, including random drug testing. The proposal, therefore, insulates both groups of employees from discipline and requires that they be offered reasonable accommodation in the form of rehabilitation. Accordingly, the proposal conflicts with the Executive Order and the FPM Letter. We find nothing in the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq., which would affect in any way the Agency's obligation to discipline employees who are found through random testing to use illegal drugs. Accordingly, we reject the Union's assertion that the proposal would merely ensure employees their rights under that Act. Compare National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 41 FLRA 1241, 1261-62 (1991) (Energy) (Authority rejected argument that proposal precluding agency from conducting reasonable suspicion testing in certain circumstances constituted a restatement of the Rehabilitation Act).
As noted above, in connection with Proposal 2, the Executive Order constitutes law and the FPM Letter is a Government-wide regulation, within the meaning of section 7117(a)(1) of the Statute. Bureau of Reclamation, 39 FLRA at 1524. Consequently, Proposal 42 is nonnegotiable under section 7117(a)(1) because it conflicts with those issuances. Compare Mather AFB, 40 FLRA at 871-75 (proposal found to be a negotiable appropriate arrangement which exempts from discipline an employee who voluntarily admits to drug usage, participates in a rehabilitation program, and thereafter refrains from using drugs). As Proposal 42 is inconsistent with applicable law and Government-wide regulation, we do not address the Agency's other arguments concerning the proposal or the Union's argument that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. See, for example, Department of Education, 38 FLRA at 1083 (section 7106(b)(3) of the Statute "does not make negotiable a matter which is inconsistent with law other than the Statute").
XX. Proposal 44
When and if it becomes necessary to impose discipline for on-the-job infractions that stem from substance induced impairment, discipline will be progressive and proportional to the infraction and hazard presented by the impairment.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 44 is inconsistent with section 5(c) of Executive Order 12564, which, according to the Agency, requires that an employee, identified as an illegal drug user, be removed from a sensitive position without regard to the extent of the hazard presented by the employee's impairment. In addition, the Agency asserts that section 5(d) of the Order requires separation of an employee for a second offense regardless of whether there is any hazard presented by the impairment. In the Agency's view, the proposal also conflicts with the Executive Order because it would bar random and some reasonable suspicion testing. In addition, the Agency contends that the requirement for progressive discipline directly and excessively interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.
2. The Union
The Union contends that Proposal 44 does not conflict with the Executive Order because the proposal "does not refer to employees who are found to have tested positive, but rather, refers to on-the-job infractions that stem from drug induced impairment." Reply Brief at 22. The Union further argues that the "right to take discipline is mitigated to the extent that this proposal requires that disciplinary action be appropriate." Response to Agency's Supplementary Brief at 23. According to the Union, the proposal "does not prevent the Agency from taking disciplinary action in any situation where an employee engages in on the job infractions as a result of substance-induced impairment." Id. In addition, the Union asserts that the proposal "does not imply that the Agency cannot take disciplinary action in other contexts relating to substance abuse." Id. at 24.
B. Analysis and Conclusions
Proposal 44 would limit the Agency's choice of penalties for on-the-job infractions stemming from substance-induced impairment to "progressive" and "proportional" discipline. Consistent with the plain wording of the proposal, and the Union's statement of intent, we find that the proposal does not concern the nature or severity of discipline to be imposed for illegal drug use itself. Instead, the proposal concerns discipline for on-the-job infractions that result from such drug use.
Proposals limiting an agency's discretion to determine the specific penalties to impose in disciplinary actions directly interfere with management's right, under section 7106(a)(2)(A) of the Statute, to discipline employees. See, for example, Fort Leavenworth, Kansas, 38 FLRA at 1214; National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 29 FLRA 966, 969-70 (1987); and International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 132-33 (1987) (Bureau of Engraving and Printing). Because Proposal 44 would limit the Agency's choice of discipline to that which is "progressive and proportional to the infraction[,]" we find that the proposal directly interferes with the right to discipline employees under section 7106(a)(2)(A).
We conclude also that the proposal does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
Applying the principles set out in KANG, we first must determine whether the proposal is an arrangement for employees adversely affected by the exercise of a management right. By limiting the severity of discipline imposed on employees who commit on-the-job infractions because of substance abuse, the proposal affords a benefit to such employees by preventing the imposition of more severe penalties. Accordingly, we conclude that Proposal 44 constitutes an arrangement for employees adversely affected by the Agency's exercise of its right to discipline.
Next, under KANG, we must decide whether the arrangement is appropriate. That is, we must determine whether the proposed arrangement affords benefits to employees which outweigh the burden imposed on management's exercise of its rights under the Statute.
As noted previously, the proposal benefits employees by insulating them from more severe discipline than that which is progressive and proportional to the infraction. However, the beneficiaries are employees subject to discipline for conduct for which they may be at fault because of substance-induced impairment. Furthermore, by limiting the Agency's choice of discipline to that which is "progressive and proportional to the infraction and hazard presented by the impairment[,]" Proposal 44 restricts management's ability to determine the penalty it considers appropriate in each individual circumstance giving rise to a disciplinary action. We find that the limitations on management's right to discipline outweigh the benefits to employees. Accordingly, we conclude that Proposal 44 excessively interferes with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute and that the proposal is not a negotiable appropriate arrangement under section 7106(b)(3). See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 35-36 (1990). See also Bureau of Engraving and Printing, 25 FLRA at 133 (a proposal establishing progressive discipline excessively interfered with management's rights).
XXI. Proposal 47
After an employee has tested positive for illegal drug use, the employee shall be given the opportunity to identify himself/herself as a drug user, and that employee shall not be disciplined if he/she obtains counseling or rehabilitation through an employee assistance program or private therapeutic program and thereafter refrains from using illegal drugs.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 47 is nonnegotiable because it conflicts with Executive Order 12564. The Agency notes that the only exception to the requirement that illegal drug users be disciplined under section 5(b) of the Order is where an employee voluntarily identifies himself or herself as an illegal drug user or volunteers for drug testing before being identified by other means. The Agency also asserts that the proposal conflicts with the Executive Order by insulating from discipline those employees who have been involuntarily identified as illegal drug users. The Agency also contends, for the same reasons, that the proposal interferes with its right to discipline under section 7106(a)(2)(A) of the Statute.
The Agency asserts, in addition, that the proposal conflicts with its drug testing regulation for which it alleges there is a compelling need. The Agency notes that its plan requires that some discipline be imposed when there is a positive test result. Finally, the Agency argues that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute because it conflicts with the Executive Order.
2. The Union
The Union contends that Proposal 47 does not conflict with the Executive Order or the Agency's drug-testing plan. According to the Union, "the Agency can 'initiate disciplinary action' without following through on it[,]" if the affected employee remains drug free after completing rehabilitation. Reply Brief at 23. Therefore, the Union argues that the proposal is consistent "with the Executive Order and the purpose of the drug testing plan." Id. The Union further contends that the proposal constitutes "an arrangement for employees who are found to be using illegal drugs through the implementation of the Agency's internal security program." Response to Agency's Supplementary Brief at 24. The Union asserts that the Agency's right to discipline "is not unduly harnessed, because the Agency's reason to discipline becomes moot if the employee remains drug free." Id.
B. Analysis and Conclusions
Section 5(b) of Executive Order 12564 requires agencies to "initiate action to discipline any employee who is found to use illegal drugs," except for employees who: (1) voluntarily identify themselves as users of illegal drugs or who are identified as users of illegal drugs under a voluntary drug testing program; (2) "[o]btain counseling or rehabilitation through an Employee Assistance Program [EAP]"; and (3) "[t]hereafter [refrain] from using illegal drugs." Section 5.d of FPM Letter 792-19 similarly provides that, "[e]xcept for employees who voluntarily identify themselves as users of illegal drugs, obtain appropriate counseling and rehabilitation, and thereafter refrain from illegal drug use, agencies are required to initiate some form of disciplinary action against employees who are found to use illegal drugs." Neither the Executive Order nor the FPM Letter provides for cancellation of the required discipline when the affected employee successfully completes rehabilitation and subsequently refrains from using illegal drugs. Accordingly, in our view, the requirement "to initiate" disciplinary action, contained in the Executive Order and the FPM Letter, includes the obligation to impose discipline where otherwise consistent with applicable law and regulation. See Fort Leavenworth, 38 FLRA at 1213.
Proposal 47 would preclude the Agency from disciplining employees who are found to use illegal drugs, through testing other than voluntary testing, provided that they: (1) subsequently identify themselves as illegal drug users; (2) obtain counseling or rehabilitation through the EAP; and (3) thereafter do not use illegal drugs. The Executive Order and the FPM Letter require that discipline be imposed on employees who are found to use illegal drugs in these circumstances. Accordingly, Proposal 47 is inconsistent with section 5(b) of the Executive Order and section 5.d of the FPM Letter. As noted previously, the Executive Order is a law and the FPM Letter is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. Bureau of Reclamation, 39 FLRA at 1524. Consequently, Proposal 47 is nonnegotiable under section 7117(a)(1) of the Statute.
In view of our finding that Proposal 47 is nonnegotiable because it conflicts with law and Government-regulation, it is unnecessary to address the Union's contention that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. See Department of Education, 38 FLRA at 1083.
XXII. Proposal 50
Employees shall not be observed while providing a urine sample unless there is reason to believe a particular employee may alter or substitute the specimen provided, with that reason being non-arbitrary and rational.
A. Positions of the Parties
1. The Agency
The Agency notes that section 4(c) of Executive Order 12564 specifies that "[p]rocedures for providing urine specimens must allow individual privacy, unless the agency has reason to believe that a particular individual may alter or substitute the specimen to be provided." The Agency contends that the Authority "has held that union proposals which seek to establish such contractual standards as 'just cause' to limit the scope of this regulatory requirement are too vague to permit it to determine their meaning." Statement of Position at 96 (citing National Federation of Federal Employees, Local 1437 and U.S. Army Armament Research, Development and Engineering Center, Dover, New Jersey, 31 FLRA 101, 115-16 (1988) (Armament Research, Development and Engineering Center)). According to the Agency, the "non-arbitrary and rational" standard in Proposal 50 is no clearer than "just cause." Consequently, in the Agency's view, the Authority "is constrained to refuse to rule" on Proposal 50. Id. at 97.
The Agency contends that the proposal also is inconsistent with the Executive Order because the phrase "non-arbitrary and rational" is more restrictive on the Agency's authority to observe an employee's provision of a urine specimen than is the "reason to believe" standard in the Executive Order. The Agency claims that the Union's objective in Proposal 50 is "to substitute an arbitrator's judgment for that of management in deciding when its internal security in the form of securing the integrity of an employee's specimen might be subject to compromise." Id. at 98.
The Agency also argues that Proposal 50 interferes with management's right to determine its internal security practice under section 7106(a)(1) of the Statute. The Agency claims that, by requiring that the reason to believe be non-arbitrary and rational, the proposal imposes an independent contractual limitation on the Agency's authority to observe the provision of specimens. The Agency further claims that the Union has stated that the only occasion when direct observation would be deemed non-arbitrary and rational is when the first sample is found to fall outside the temperature, color or precipitate norms established by the HHS Guidelines. According to the Agency, "the circumstances in which management may 'have reason to believe' that an employee may tamper with or substitute for a specimen are not limited to those set out in section 2.2(f) of [the HHS Guidelines]." Id. at 99.
Next, the Agency contends that the proposal is nonnegotiable under section 7117(a)(2) of the Statute because it is inconsistent with the Agency's drug testing plan for which, it claims, there is a compelling need. The Agency asserts that its plan authorizes direct observation in more circumstances than would be permitted under Proposal 50. The Agency claims a compelling need exists for its plan because: (1) the plan implements a mandate to the Agency under the Executive Order and Pub. L. 100-71, which implementation is essentially non-discretionary; and (2) the plan is essential, as opposed to merely desirable, to ensure "that the law enforcement mission of [the Agency] is carried out effectively and efficiently." Id. at 100-01.
Finally, the Agency contends that Proposal 50 is not an appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute, because it conflicts with law, Government-wide regulation, and an Agency regulation for which there is a compelling need.
2. The Union
The Union argues that Proposal 50 is consistent with the "reason to believe" standard established by the Executive Order. The Union asserts that "[t]he word 'reason' implies a certain modicum of logic, and Proposal 50 clarifies the meaning of the Executive Order, without conflicting with it . . . ." Reply Brief at 24. The Union also asserts that, in requiring consistency with the Executive Order, the proposal does not interfere with management's right to determine its internal security practices. The Union states that, "as is clear from the wording, the Union intends that any reason the [A]gency has to justify direct observation should be rational and provide supportive evidence that an employee may tamper with the sample." Id. at 25. The Union also rejects the Agency's position that there is a compelling need for its drug plan, arguing that "any regulation which is not subject to rational and non-arbitrary application cannot be 'essential;' it must be for the mere convenience of the Agency." Id. at 24.
The Union also contends that Proposal 50 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union identifies the management right which adversely affects employees as the right to determine its internal security practices. According to the Union, Proposal 50 "ameliorates that exercise of management's right by providing that such observation will occur only when there is a non-arbitrary and rational reason to believe that a particular employee may alter or substitute the specimen provided." Response to Agency's Supplementary Brief at 24-25. In the Union's view, the proposal
serves to assure employees that there will be a definite reason to believe that he or she will tamper with the specimen before a direct observation is triggered. This will create less tension among employees who are called upon to submit to random or other types of urinalysis, and will not preclude management from observing an employee provide a urine sample when the necessary basis is present.
Id. at 25.
B. Analysis and Conclusions
Initially, we reject the Agency's suggestion that we decline to rule on the negotiability of Proposal 50 because it is too vague. In the case relied on by the Agency, Army Armament Research, Development and Engineering Center, 31 FLRA at 115-16, the union sought to apply a "just cause" standard to direct observation of the provision of urine samples. In the absence of any reasonable explanation of how that standard would apply to a decision to directly observe an employee, the Authority was unable to determine whether the proposal was consistent with the "reason to believe" standard contained in the Executive Order.
In contrast, Proposal 50 contains a "reason to believe" standard, and it is clear from the record how the proposal would apply. Our task, therefore, is to decide whether the modifying words, "non-arbitrary and rational," are incompatible with the "reason to believe" standard contained in the Executive Order and governing regulations.
In Department of Education, section B of Proposal 5 provided that employees would be afforded privacy during the drug testing process unless management had "a reasonable suspicion" that an employee might attempt to invalidate or falsify the urine sample. 38 FLRA at 1094. In finding section B to be negotiable, we found that, in implementing the "reason to believe" standard contained in the Executive Order, the HHS Guidelines and FPM Letter 792-19 require that an agency decision to require direct observation of an employee providing a urine sample "be based on a reasonable belief, which is supported by particular and objective facts, that the employee may alter or substitute the sample." 38 FLRA at 1098. See also GSA, 41 FLRA at 736.
We read Proposal 50 as imposing a standard no different from that in the HHS Guidelines and the FPM Letter. That is, the proposal requires that the Agency be able to provide reasons to support its belief that an employee may alter or substitute a sample and that those reasons be based on specific facts and reasonable inferences drawn from those facts before an observer is assigned to oversee the collection of that employee's sample. Accordingly, we find that Proposal 50 is consistent with the Executive Order, the HHS Guidelines, and FPM Letter 792-19.
We also find, in accordance with Department of Education, that it is unnecessary to determine whether the proposal involves the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute, because we conclude that, even if Proposal 50 were found to directly interfere with that right, the proposal would nonetheless be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. See id. at 1098-99. See also GSA, 41 FLRA at 737-39.
The Agency also argues that Proposal 50 is nonnegotiable because it conflicts with the Agency's drug plan for which it asserts there is a compelling need. We disagree. We note, in this regard, that chapter 4.E. of the Department of Justice "Drug-Free Workplace Plan" parallels both the HHS Guidelines and the FPM Letter concerning direct observation. That is, in accordance with the Guidelines and the FPM Letter, chapter 4.H. does not require direct observation in the enumerated situations. Rather, chapter 4.H. provides that "[o]bservation is permitted . . . when there is reason to believe a particular individual may alter or substitute the specimen provided." Petition for Review, Exhibit 2 at 19 (emphasis added). Accordingly, even if we were to accept the Agency's assertion that the proposal precludes direct observation in circumstances encompassed by the Agency's plan, the plan does not prohibit bargaining over the proposal because observation in such situations under the plan is not mandatory. See American Federation of Government Employees, Local 1501 and U.S. Department of the Air Force, Airlift Military Command, McChord Air Force Base, Washington, 38 FLRA 1515, 1521 (1991) (as regulation provided agency with discretion as to disputed matter, proposal was not inconsistent with the regulation). Therefore, we find that Proposal 50 is negotiable.
XXIII. Proposals 51 and 52
Proposal 51. Reasonable suspicion testing in and of itself is not grounds for direct observation in the provision of a urine sample. There must be additional reason to believe that an employee may tamper with a sample before direct observation may be used.
Proposal 52. The fact that an employee is being tested because facts and circumstances suggest that the individual is an illegal drug user or is under the influence of drugs at the time of the test shall not in and of itself be cause for direct observation of the employee when he/she provides the urine sample. Direct observation may be used only when there are additional facts and circumstances which suggests [sic] that an employee might tamper with a urine sample.
A. Positions of the Parties
1. The Agency
The Agency argues that Proposals 51 and 52 "arbitrarily and irrationally limit the scope of section [3](c) of [Executive Order] 12564." Statement of Position at 103. Noting that the precautions against tampering with specimens prescribed in section 2.2.(f) of the HHS Guidelines are minimums, the Agency contends that the proposals impermissibly narrow the range of circumstances in which direct observation would be justified under the Guidelines. The Agency also asserts that the proposals would authorize direct observation in only two of the five situations enumerated in section 4.g(2) of FPM Letter 792-19. Additionally, the Agency asserts that the proposals conflict with the Agency's drug plan, for which it contends that a compelling need exists, by limiting direct observation to fewer circumstances than authorized by the drug plan.
The Agency also contends that Proposals 51 and 52 interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. In addition, according to the Agency, the proposals interfere with its right to discipline under section 7106(a)(2)(A) because:
they do not permit management's representatives to employ a reasonable security precaution in all circumstances when they have reason to believe that an employee may tamper with or substitute a specimen. Thus, they not only preclude management from taking measures to insure that [sic] the integrity of a specimen needed as evidence to sustain a disciplinary action but, further, preclude management from gathering evidence to support a separate charge of tampering or attempted tampering.
Id. at 105-06 (emphasis in the original).
The Agency claims that the proposals reflect the Union's concerns over the constitutionality of direct observation of the provision of urine samples. Asserting that the Authority is precluded from ruling on the constitutionality of agency regulations, the Agency argues that "it follows that [the Authority] would be precluded from finding that the proposal in question is an appropriate arrangement for correcting such an alleged deficiency." Supplementary Brief at 43.
2. The Union
The Union contends that Proposals 51 and 52 are consistent with Executive Order 12564 and the HHS Guidelines. The Union asserts that the proposals provide that "reasonable suspicion testing does not constitute presumptive grounds for direct observation when an employee is required to submit a urine sample." Petition for Review at 14. The Union notes that the Agency's drug testing plan provides for direct observation when an employee is tested because of reasonable suspicion. According to the Union, the plan's requirement "is in direct conflict with the requirements that there be a 'reason to believe' that . . . tampering or alteration might occur." Reply Brief at 25. The Union further argues that:
[t]he fact that an employee is believed to be under the influence of drugs does not mean he or she will tamper with the sample. The preliminary test mechanisms for assessing the integrity of the sample are set forth in the HHS Guidelines and provide adequate protection, without direct observation. It would only be in the circumstances when an employee gives additional indication that he or she may tamper with the sample that direct observation can be used.
Id. at 25-26. The Union denies the Agency's suggestion that Proposals 51 and 52 would prevent direct observation of an employee possessing equipment or implements capable of affecting a urine specimen. Rather, the Union claims that the proposals "merely serve to prevent an employee's suspected state of being from forming a presumptive reason to believe he/she may tamper with the specimen." Id. at 26 (emphasis in the original). According to the Union, "[t]here is no compelling need for a contrary regulation." Id.
The Union further asserts that the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute is "essentially unaffected, because the collection site personnel may still perceive grounds for believing an employee may tamper with a specimen, thereby prompting direct observation." Id. In the Union's view, the Agency's right to discipline under section 7106(a)(2)(A) "is not undermined by requiring a factual basis for 'reason to believe' tampering may occur. The reasons that justify direct observation pursuant to Proposals 51 and 52 can also constitute a basis for alleging an attempt to tamper in a disciplinary action." Id.
The Union further contends that Proposals 51 and 52 constitute negotiable appropriate arrangements under section 7106(b)(3) of the Statute for employees adversely affected by the exercise of management's right to determine its internal security practices. According to the Union, the proposals "ameliorate[] that exercise of management's right by providing that such observation will occur only when there is a non-arbitrary and rational reason to believe that a particular employee may alter or substitute the specimen provided." Response to Agency's Supplementary Brief at 24-25. The Union argues that the proposals "serve[] to assure employees that there will be a definite reason to believe that he or she will tamper with the specimen before a direct observation is triggered. This will create less tension among employees who are called upon to submit to random or other types of urinalysis, and will not preclude management from observing an employee provide a urine sample when the necessary basis is present." Id. at 25.
B. Analysis and Conclusions
Proposals 51 and 52 would, respectively, prevent direct observation of an employee's provision of a urine specimen solely on the basis that: (1) the employee is being tested because there is a reasonable suspicion that he or she is an illegal drug user; or (2) facts and circumstances suggest that the employee is an illegal drug user or is under the influence of illegal drugs at the time of the test. The proposals would authorize direct observation only when the Agency has reason to believe that the employee might tamper with the sample to be provided.
In GSA, 41 FLRA at 729, the first disputed proposal authorized direct observation of an employee providing a urine sample only when there is reason to believe that the employee may alter or substitute the sample because facts and circumstances suggest that the employee either possesses equipment or implements capable of tampering with or altering the sample or has previously tampered with samples. Like Proposals 51 and 52, the GSA proposal narrowed the grounds justifying direct observation provided in the applicable drug testing regulations. In fact, the proposal in GSA is even more restrictive than Proposals 51 and 52, in that it authorized direct observation only in two specified circumstances.
In determining the negotiability of the disputed proposal in GSA, we first examined relevant provisions of the Executive Order, the HHS Guidelines, and FPM Letter 792-19. We concluded, for reasons discussed fully therein, that this statutory and regulatory guidance provided agencies with discretion, except in one instance, in determining when direct observation of employees providing specimens is appropriate. With respect to the one exception, section 2.2(f)(13) of the HHS Guidelines requires that a second specimen be obtained under direct observation when a first specimen is outside specified temperature ranges. We concluded, in view of the discretion afforded by the Executive Order and the applicable regulations, that the GSA proposal was not inconsistent with either the Executive Order or the FPM Letter. We also found nothing in the GSA proposal preventing direct observation in the single situation where such supervision is mandated by the HHS Guidelines.
Similarly, we find that the requirement in Proposals 51 and 52 that the decision to observe directly an employee undergoing "reasonable suspicion" testing be supported by specific reasons to believe that the employee will alter or substitute the sample is not inconsistent with provisions in the Executive Order or applicable regulations. Moreover, as with the GSA proposal, we find nothing in the proposals' wording or in the record which prevents direct observation in the situation where such observation is mandated by the HHS Guidelines. Consequently, for the reasons more fully stated in GSA, Proposals 51 and 52 are consistent with the Executive Order, FPM Letter 792-19, and the HHS Guidelines. See id. at 733-36.
We note, with respect to the FPM Letter, that OPM has announced its intention to revise the letter. Office of Personnel Management, New Developments in Employee and Labor Relations (July 1991) at 3. In particular, OPM states that:
[T]he mere fact that an employee is undergoing a reasonable suspicion test is not, in and of itself, grounds for the agency to visually observe the employee giving the sample. Visual observation may only be required when there is reason to believe that a particular employee may tamper with a test or sample.
Id. We find, in this regard, no inconsistency between our conclusion that Proposal 51 is not inconsistent with the FPM Letter and OPM's intention to revise it. That is, we adhere to our view that, as presently written, the FPM Letter does not require direct observation of the provision of urine samples by employees undergoing reasonable suspicion testing. That OPM seeks to make that interpretation clear does not undermine our finding.
Our next step in GSA was to determine whether the disputed proposal excessively interfered with the agency's right under section 7106(a)(1) of the Statute to determine its internal security practices. We noted that, if the decision to observe employees while they provide urine specimens did not constitute the exercise of management's right to determine its internal security practices, the proposal was negotiable because it would not directly interfere with the exercise of that management right.
We also concluded, however, that if such decision constitutes the exercise of management's right to determine its internal security practices, the proposal did not excessively interfere with that right. In so finding, we noted that the proposal preserved management's right to observe employees directly "in two broad circumstances when there is reason to believe that the employee may alter or substitute the specimens." 41 FLRA at 739. On the other hand, the proposal provided significant benefits to employees by limiting the intrusion on employee privacy occasioned by direct observation, and reflected the preference for privacy expressed in the Executive Order and applicable regulations. Therefore, we concluded that the proposal would not excessively interfere with management's right to determine its internal security practices and would "be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute." Id.
For the reasons fully discussed in GSA, and noting again that Proposals 51 and 52 impose a less rigorous standard on the Agency's decision to require the collection of specimens under direct observation than the GSA proposal, we find that Proposals 51 and 52 are negotiable.
We find the Agency's additional arguments that the proposals: (1) interfere with the right to discipline under section 7106(a)(2)(A) of the Statute; and (2) conflict with the Agency drug plan, for which a compelling need exists, are without merit. As to the first argument, we note that these proposals deal exclusively with the drug testing program and do not in any way prescribe what investigative steps the Agency may take in connection with a potential disciplinary proceeding. Concerning the second argument, as we observed with regard to Proposal 50, the Agency's drug testing plan provides managers with discretion to observe directly in specified circumstances. As direct observation under the Agency's plan is a discretionary matter, the Agency is obligated to exercise that discretion through collective bargaining.
XXIV. Proposals 53 and 54
Proposal 53. Employees who identify themselves as illegal drug users to the Employee Assistance Program may do so separate from this drug testing program and may seek appropriate rehabilitative assistance without being subject to additional drug testing.
Proposal 54. When an employee identifies himself/herself as an illegal drug user to the Employee Assistance Program separate from this drug testing program, that information shall be kept in strict confidence by the Employee Assistance Program. The employee will be given the opportunity to seek rehabilitative assistance without being placed in the follow-up pool for drug testing.
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposals 53 and 54 are inconsistent with Executive Order 12564 to the extent that they would preclude random drug testing of employees who voluntarily identify themselves to the Employee Assistance Program (EAP) as illegal drug users. The Agency contends that the proposals also conflict with the Agency's drug plan, for which it asserts a compelling need, under which "EAP Directors are obliged to monitor employees who self-refer not only while they are enrolled in a treatment program, but, through 'follow-up' testing, for a year after they have completed such a program." Statement of Position at 108.
The Agency also asserts that the proposed bans on follow-up testing are inconsistent with its right to determine its internal security practices. The Agency argues further that the proposals are not appropriate arrangements within the meaning of section 7106(b)(3) of the Statute because they conflict with requirements of the Executive Order. Finally, the Agency asserts that the limitation contained in Proposal 54 on dissemination of EAP information is inconsistent with section 4.f(1) of FPM Letter 792-19.
2. The Union
The Union describes the objective of Proposal 53 as follows:
[The Agency] Plan acknowledges that the Employee Assistance Program is a pre-existing program that is separate from the drug testing program set forth in the Plan, although its activities interface with the Plan. . . . The Union is concerned with maintaining the integrity and independence of the Employee Assistance Program, so that employees may continue to feel free to contact that program to seek assistance.
Reply Brief at 27.
Concerning Proposal 54, the Union asserts that the Executive Order authorizes, but does not require, the Agency to conduct follow-up drug testing through the EAP. The Union contends that "[a]uthorization and a mandate are different." Id. The Union emphasizes that its proposal is intended to cover employee self-referral outside the regulatory drug program and contends that "follow-up testing is not required of employees who identify themselves as in need of drug rehabilitation." Id.
The Union argues that the Agency's "right to determine its internal security practices remains intact under Proposals 53 and 54, because the focus of these proposals is the [A]gency's rehabilitation program." Id. at 28. The Union contends that one result of the Agency's exercise of its right to determine its internal security practices is to discourage employees from using the EAP. The Union states that these proposals mitigate that effect by ensuring that "an employee may use the services of the [EAP] without suffering the additional inconvenience and hardship caused by additional drug testing." Response to Agency's Supplementary Brief at 26. Additionally, the requirement for confidentiality in Proposal 54, according to the Union, is an "appropriate arrangement for employees who are forced to disclose otherwise undiscoverable information about themselves, their activities and their health problems." Id.
B. Analysis and Conclusions
Section 5(b) of the Executive Order establishes procedures to be followed when an employee voluntarily admits to illegal drug usage. Such employee need not be disciplined if he or she obtains counseling or rehabilitation and, thereafter, refrains from using illegal drugs. See generally, Mather AFB, 40 FLRA at 872-73. See also FPM Letter 792-19, section 5.d. Neither the Executive Order nor FPM Letter 792-19 exempts employees who voluntarily admit to illegal drug usage from testing, however. Rather, section 3(c)(3) of the Executive Order provides that the head of an agency is "authorized" to test an employee "[a]s part of or as a follow-up to counseling or rehabilitation for illegal drug use through an Employee Assistance Program." Section 3.e of the FPM Letter, which explains section 3(c)(3) of the Executive Order, provides that the head of an agency "may also require agency-administered follow-up drug testing during or after counseling or rehabilitation for illegal drug use[.]"
Although the Executive Order and the FPM Letter authorize drug testing as part of, or as a follow-up to, counseling and rehabilitation, they do not require such testing. Accordingly, although Proposals 53 and 54 would exempt employees, during and after rehabilitation, from any drug testing authorized by the Executive Order and the FPM Letter, the proposals are not inconsistent with law or Government-wide regulation.
However, we find that Proposals 53 and 54 are nonnegotiable on a different ground. Proposals that prescribe substantive criteria governing the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute directly interfere with that right. Bureau of Reclamation, 39 FLRA at 1526. Management's right under section 7106(a)(1) to determine its internal security practices includes the right to conduct random drug tests. See, for example, Graphics Communications International Union, Local 98-L and U.S. Department of Defense, Defense Mapping Agency, Hydrographic Topographic Command, Washington, D.C., 39 FLRA 437, 442 (1991) (Member Talkin concurring) (Defense Mapping Agency). Proposals 53 and 54 would exempt from drug testing any employee who voluntarily enters a rehabilitation program. Restricting in this manner management's ability to administer drug tests directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See Energy, 41 FLRA at 1262; Bureau of Reclamation, 39 FLRA at 1525-27; Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 31 FLRA 70, 74 (1988).
Although Proposals 53 and 54 directly interfere with the Agency's right to determine its internal security practices, the proposals are negotiable if they constitute appropriate arrangements under section 7106(b)(3) of the Statute. As noted previously, in determining whether a proposal is an appropriate arrangement, we must decide whether a proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right, and (2) appropriate because it does not excessively interfere with the exercise of management's right. KANG, 21 FLRA 24. We find, with respect to the first prong of the KANG test, that the proposals are intended by the Union to constitute arrangements for employees who are, or would be, adversely affected by the exercise of the Agency's right to determine its internal security practices. See Energy, 41 FLRA at 1263. It is, therefore, necessary to determine whether the proposals excessively interfere with management's right.
Proposal 53 would benefit admitted drug users who voluntarily submit to counseling and rehabilitation by insulating them from any additional drug testing. Proposal 54 would benefit admitted drug users who volunteer for counseling and rehabilitation by preventing follow-up testing. These are significant benefits as, among other things, Federal agencies are required, in various circumstances, by the Executive Order to discipline and/or remove from the Federal service employees who test positive on drug tests.
However, Proposal 53 would eliminate the Agency's discretion to determine whether any testing is warranted to secure and safeguard the Agency's property and employees. The proposal would bar testing even on the basis of reasonable suspicion that an employee is currently using illegal drugs or to ascertain whether an accident or unsafe practice is attributable to substance abuse. Similarly, Proposal 54 would prevent the Agency from testing admitted drug users to ascertain whether they have become, and remain, drug free. This blanket prohibition on testing excessively interferes with the Agency's right to determine its internal security practices. We conclude, therefore, that Proposals 53 and 54 do not constitute appropriate arrangements, within the meaning of section 7106(b)(3) of the Statute and are nonnegotiable. See Energy, 41 FLRA at 1263-64; Bureau of Reclamation, 39 FLRA at 1527; Defense Mapping Agency, 39 FLRA at 442; National Federation of Federal Employees, Local 405 and U.S. Army Aviation Systems Command and U.S. Army Troop Support Command, 33 FLRA 604, 609-10 (1988). Compare Mather AFB, 40 FLRA at 874 (proposal exempting from discipline employees who, among other things, voluntarily admit illegal drug use held not to excessively interfere with management's right to discipline).
One disputed aspect of Proposal 54 remains. Under this proposal, an employee's admission of illegal drug usage must "be kept in strict confidence" by the EAP. Section 503 of the Supplemental Appropriations Act of 1987, Pub. L. No. 100-17, codified at 5 U.S.C. § 7301 note, addresses the disclosure of information concerning employee drug tests under Government drug testing programs. Under that provision, such information may not, without employee consent, be released to anyone except the employee's medical review official, the administrator of an EAP in which the employee is receiving counseling, a supervisory or management official with authority to initiate an adverse action against the employee, or pursuant to a court order.
The Union does not explain what it intends by requiring that admissions of illegal drug use "be kept in strict confidence." Specifically, the Union does not state whether the proposed "strict confidence" restriction on disclosure of admissions of drug use is to be interpreted consistent with the restrictions imposed by the Supplemental Appropriations Act. Consequently, the record provides insufficient information for us to decide whether Proposal 54 is consistent with law.
As noted previously, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet this burden acts at its own peril. See, for example, American Federation of Government Employees, AFL-CIO, Local 3760 and Department of Health and Human Services, Social Security Administration, 33 FLRA 498, 501 (1988). As the Union has not provided the information necessary for us to determine whether the disclosure limitation in Proposal 54 is consistent with the Supplemental Appropriations Act, the Union has not sustained its burden of creating a record sufficient for the purpose of making a negotiability determination. Accordingly, we will not address the negotiability of that aspect of Proposal 54. See Department of Education, 38 FLRA at 1106-07.
XXV. Proposal 59
The Agency agrees to hold the Union harmless and to bear any expenses incurred by the Union in defending litigation arising out of the employer's activities in carrying out the drug testing program.
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposal 59 should be dismissed because it is too vague. The Agency states that Proposal 59 is broad enough to cover Union claims for any expenses, including reimbursement for any attorney fees. The Agency argues that the proposal is not negotiable "because it does not purport to amend one or more . . . 'conditions of employment' of unit employees . . . ." Statement of Position at 113. Additionally, the Agency argues that, in the absence of statutory authority, the Federal Government is precluded from assuming the costs associated with litigation between the Union and a third party.
The Agency also contends that the Authority should not accept a union's "assertion that a proposal which, on its face, is non-negotiable, is nonetheless negotiable" because it should be read in a manner that is consistent with law. Agency's Supplementary Brief at 44. Finally, the Agency argues that Proposal 59 "is inconsistent with Congress' purpose in enacting section 7114(a)(1)" of the Statute. Supplemental Brief in Support of Statement of Position at 61.
2. The Union
The Union contends that Proposal 59 provides "indemnification for damages incurred by the Union as a result of its participation in . . . drug testing negotiations." Petition for Review at 15. The Union argues that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts that employees may be adversely affected by management's establishment of a drug testing program if the Union is required to incur expenses in the defense of litigation arising out of the program and, therefore, has less money to represent employees. Finally, the Union contends that Proposal 59 should be read consistent with existing law regarding the Agency's liability to pay for such expenses.
B. Analysis and Conclusions
We reject the Agency's claim that the petition for review should be dismissed as to Proposal 59 because the proposal does not specify the costs encompassed by it. We find, based on the plain wording of Proposal 59, and the Union's statement of intent, that the proposal is sufficiently specific for us to determine its negotiability.
Proposal 59 is similar to the proposal found nonnegotiable in National Federation of Federal Employees, Locals 642, 1911, 1966, and 2024 and U.S. Department of the Interior, Oregon State Office, Bureau of Land Management, 35 FLRA 1034 (1990) (NFFE, Oregon State Office). In that decision, we held that contractual indemnification clauses that would require a Federal agency to pay money before an appropriation is made for that purpose are unenforceable under the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(B), unless the agency is authorized by law to obligate funds in advance of an appropriation. Id. at 1037. Because of the open-ended nature of the proposed indemnification provision in that case and the absence of statutory authority for the proposed expenditures, we concluded that the proposal was inconsistent with law and, therefore, nonnegotiable under section 7117(a)(1) of the Statute.
In this case, as in NFFE, Oregon State Office, there is no evidence that funds have been appropriated in the Agency's budget for indemnification of any party, including the Union, for litigation costs associated with the Agency's drug testing program. Furthermore, the Union cites no statutory authority for the Agency to indemnify the Union for the costs encompassed by Proposal 59, and none is apparent to us.
Based upon the rationale more fully set out in NFFE, Oregon State Office, we conclude that, by requiring the indemnification of any litigation expenses in the absence of appropriation or statutory authority, Proposal 59 is inconsistent with the Anti-Deficiency Act and is, therefore, nonnegotiable under section 7117(a)(1) of the Statute. See id. In view of our conclusion that the proposal is inconsistent with law, we find it unnecessary to address the Agency's other contentions.
Finally, because of our determination that Proposal 59 is inconsistent with law, we conclude that it is unnecessary to consider the Union's assertion that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. Section 7106(b)(3) is inapplicable when it is determined that a proposal is inconsistent with law. Accordingly, the Union's assertion would not provide a basis for finding Proposal 59 negotiable. See Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1430 (1991).
XXVI. Proposal 61
The Agency shall modify the statement of the DOJ Plan and OBD Plan, page 17, paragraph B and paragraph 11-b [sic] respectively, so as to delete the misstatement regarding the requirement of the Executive Order for random testing.
A. Positions of the Parties
1. The Agency
Initially, the Agency asserts that, as Executive Order 12564 requires random drug testing, Proposal 61 conflicts with the Executive Order and is nonnegotiable under section 7117(a)(1) of the Statute. The Agency also asserts that the proposal is inconsistent with its drug testing plans, for which it asserts there is a compelling need. According to the Agency, "[t]he most persuasive argument" in support of the compelling need assertion "is that the Authority itself has recognized that one of the principal purposes of E.O. 12564 is deterrence of illegal drug use and that random testing 'by its very nature contributes to that objective.'" Statement of Position at 117.
The Agency asserts that Proposal 61 interferes with management's right to determine its internal security practices. According to the Agency, "the language which the Department and the [Agency] choose for their orders is their business." Supplementary Brief at 45. The Agency further argues that proposals requiring "rewording the central features of agency regulations which reflect the exercise of a reserved management right (here the right to determine internal security practices) are not negotiable unless . . . they are appropriate arrangements which are found not to excessively interfere with the exercise of the right." Id. The Agency asserts that the Union has advanced no argument that Proposal 61 is intended to ameliorate the adverse effects of random testing.
2. The Union
The Union asserts that the objective of Proposal 61 is to reflect that the Executive Order does not require random testing of employees. The Union contends that, contrary to the Agency's position, "the proposal does not require the [Agency] to change its interpretation of the Order." Reply Brief at 28. Accordingly, in the Union's view, "the Authority need not address the existence of compelling need for random testing." Id. at 28-29.
The Union further asserts that the proposal is an appropriate arrangement. The Union reasons that:
[t]o overstate the requirements of the Executive Order, as the Agency has done, tends to offer psychological support for what are otherwise groundless and invasive tests which are going to be conducted by the [Agency]. For the Agency to misstate the requirements of the Executive Order does indeed have an adverse effect on employees.
Response to Agency's Supplementary Brief at 27. Noting the Agency's argument that random testing has the deterrent effect sought by the Executive Order, the Union contends that "there is nothing in the record to suggest that this is so." Id. at 29.
B. Analysis and Conclusions
Proposal 61 would require the Agency to delete statements in its drug testing plans indicating that random drug testing is mandated by Executive Order 12564. Based on the Union's explanation, which is consistent with the plain wording of Proposal 61, we find that the proposal would not affect the Agency's decision to implement random drug testing. Rather, the proposal would require only that certain information be deleted from the plans. That is, the proposal concerns information provided to unit employees relating to their conditions of employment. We note that "matters relating to an agency's drug testing program unquestionably concern conditions of employment." American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557, 562-63 (1991).
According to the Agency, the proposal is nonnegotiable because it conflicts with the Executive Order. In the Agency's view, the Executive Order requires random drug testing. We disagree. The Authority has consistently held that an agency's authority to conduct random drug testing stems from management's right under section 7106(a)(1) of the Statute to determine its internal security practices, not from the Executive Order. See, for example, Department of Education, 38 FLRA at 1083. The Authority has specifically found that the Executive Order "does not mention random testing; it neither requires agencies to test employees on a random basis nor does it prohibit them from doing so. The decision as to whether to test randomly is left to the head of each agency." Rock Island I, 30 FLRA at 1054. Accordingly, we find that the proposed deletions from the Agency's drug testing plans of statements that random testing is required by the Executive Order do not conflict with the Executive Order. In making this finding, we also note that FPM Letter 792-19, in providing Government-wide guidance on the implementation of the terms of the Executive Order, provides, at section 3.a(5), that "[c]omprehensive testing may include unscheduled testing and random sampling of the employees within the group of TDPs." (Emphasis added.)
Finally, the Agency contends that the proposal is nonnegotiable because the Agency's drug testing plan, for which it asserts a compelling need exists, requires random testing. We find that contention to be without merit. The proposal in no way prevents the Agency from implementing a program of random drug testing. Consequently, there is no conflict between Proposal 61 and the Agency drug testing plan's requirement for random testing. As Proposal 61 does not conflict with the Executive Order and is not otherwise inconsistent with law, rule, or regulation, including an Agency regulation for which there is a compelling need, the proposal is negotiable.
XXVII. Proposal 62A
If an employee has [sic] compelling personal need to leave the collection site at the end of his/her regular duty hours, the employee may be granted a deferral so the employee can leave and return at a future time.
A. Positions of the Parties
1. The Agency
The Agency argues that Proposal 62A is nonnegotiable because it: (1) is inconsistent with section 2.2(f)(10) of the HHS Guidelines; (2) is inconsistent with Chapter 4.D. of the Agency's drug testing plan for which a compelling need exists; and (3) interferes with management's right to determine its internal security practices.
The Agency asserts that Proposal 62A is inconsistent with the HHS Guidelines because it would give employees "an absolute contractual right" to leave a collection site. Statement of Position at 118. The Agency also asserts that the proposal is inconsistent with the MRO Manual which, according to the Agency, provides "that employees should be required to remain at the collection center and be given additional fluids until they produce the required 60 ml." Supplemental Brief in Support of Statement of Position at 66. The Agency also argues that Proposal 62A is inconsistent with Chapter 4.D. of the Agency's drug testing plan for which, it asserts, there is a compelling need based on its arguments in connection with Proposal 29.
In addition, the Agency contends that Proposal 62A interferes with management's right to determine its internal security practices. The Agency asserts that "a delay of one day will be likely to reduce the drugs metabolite concentrations in the urine below the cut-off levels in a very significant percentage of cases." Statement of Position at 119. Finally, the Agency argues that Proposal 62A is not an appropriate arrangement. The Agency asserts that the Union's intent is to require management to delay testing if an employee has a compelling need to leave the collection site. Consequently, the Agency asserts that the proposal excessively interferes with its right to determine its internal security practices.
2. The Union
The Union argues that Proposal 62A "does not conflict with HHS Guidelines or management's rights." Reply Brief at 29. The Union also argues that Proposal 62A is an appropriate arrangement to mitigate the "great disruption of [employees'] personal lives" caused by the exercise of management's rights to establish an internal security program and assign work. Response to Agency's Supplementary Brief at 28. The Union gives the examples of "taking care of minor children or receiving a ride home with a car pool[,]" as compelling needs. Id.
B. Analysis and Conclusions
The Union asserts that Proposal 62A:
does not preclude management from conducting a test, but rather, requires the employer to defer the time of testing in the event that a compelling need exists for the employee to leave. In addition, employer discretion is reserved by the phrase 'may be granted.'
Petition for Review at 16 (emphasis in original).
The Union's statement is contradictory. In the first sentence the Union asserts that Proposal 62A requires the Agency to defer a drug test if an employee has a compelling personnel need to leave a collection site. However, in the second sentence, the Union asserts that Agency discretion to release an employee is preserved by the language "may be granted."
The first sentence of the Union's statement is inconsistent with the plain wording of Proposal 62A, which provides that an employee "may be granted a deferral" to leave the site and return at a later time. (Emphasis added.) We do not base a negotiability determination on a statement of intent which is inconsistent with a proposal's plain wording. National Association of Agricultural Employees and U.S. Department of Agriculture, Western Regional Office, Sacramento, California, 40 FLRA 1138, 1141 (1991). Accordingly, we find that Proposal 62A, as plainly worded, does not require that the Agency release employees from a collection site at the end of their regular duty hours.
Based on the plain wording of Proposal 62A, we reject the Agency's argument that it would require the Agency to defer testing if an employee has a compelling personal need to leave the collection site. Rather, the Agency has the option of granting the employee permission to leave. This option does not conflict with the requirements of section 2.2(f)(10) of the Executive Order or Chapter 4.D. of the Agency's drug testing plan. Section 2.2(f)(10) provides that if an employee fails to provide a sufficient urine specimen, collection site personnel "shall contact the appropriate authority to obtain guidance on the action to be taken." Proposal 62A preserves the Agency's right to decide what course of action to take if contacted by collection site personnel.
Further, Proposal 62A is not inconsistent with the Agency's drug testing plan, which provides that an employee's first and second level supervisors must agree that an employee will be allowed to take approved leave or continue with planned Agency travel rather than remain at a collection site. Moreover, as noted previously in connection with Proposal 29, as the Agency has not provided us with a copy of the MRO Manual, we are unable to sustain its argument that Proposal 62A is nonnegotiable because it conflicts with the Manual. Finally, because Proposal 62A preserves management's right to decide whether an employee may leave the collection site at the end of his or her regular duty hours, it does not interfere with the Agency's right to determine its internal security practices. Accordingly, we find that Proposal 62A is negotiable. Compare Department of Energy, 38 FLRA at 88; Sierra Army Depot, 37 FLRA at 1445-47 (proposals authorizing employees to leave collection site if unable to provide specimens of sufficient volume held nonnegotiable because of conflict with HHS Guidelines).
XXVIII. Proposal 66
Employees scheduled for random testing shall not be subject to testing if that employee has been tested under "accident" or "reasonable suspicion testing" and the follow-up of such testing has not been completed.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 66 interferes with management's right to determine its internal security practices. The Agency also asserts that the proposal "is not designed to ameliorate any adverse effects of a management decision to test, but, rather, to preclude the possibility of any effects by precluding management from exercising its right in a particular instance." Supplementary Brief at 47. The Agency further argues that the proposal, in barring random testing in certain situations, conflicts with the Executive Order, FPM Letter 792-19, and the MRO Manual.
2. The Union
The Union claims that the proposal's objective is "to protect employees from mandatory termination in light of two positive drug tests within a period of time that would essentially disclose the use of drugs from one incident." Reply Brief at 29. In the Union's view, Proposal 66 "is an appropriate arrangement and a procedure which is consistent with the overall purpose of the Plan to rehabilitate drug users and not unnecessarily punish them." Id.
B. Analysis and Conclusions
The Union states that, under the proposal, "if an employee has been tested for drugs under the accident or reasonable suspicion testing provisions, and the employee is designated for random testing prior to receiving the results of the first test, the random testing should be deferred until the results are received from the first test." Petition for Review at 16. As the Union's statement is consistent with the plain wording of Proposal 66, and is not disputed by the Agency, we adopt it for the purpose of this decision.
As discussed in connection with Proposal 61, under the Executive Order, agencies may, but are not required to, conduct random drug tests. Consequently, a proposal limiting an agency's discretion to test randomly is not inconsistent with the Executive Order. Rock Island I, 30 FLRA at 1054. Accordingly, we conclude that Proposal 66, which prohibits random drug testing when the analysis of certain drug tests is incomplete, is not inconsistent with the Executive Order. For the same reasons, the proposal is not inconsistent with the FPM Letter. Moreover, as discussed previously in connection with Proposals 29 and 62A, the Agency's contention that the proposal is nonnegotiable because it conflicts with the MRO Manual cannot be sustained.
Proposals which prescribe substantive criteria governing the exercise of management's right to determine its internal security practices under section 7106(a)(1) directly interfere with that right. Management's right under section 7106(a)(1) includes the right to conduct random drug tests. For example, Bureau of Reclamation, 39 FLRA at 1526-27. As Proposal 66 constitutes a substantive restriction on the Agency's right to determine its internal security practices by scheduling and conducting random tests, it directly interferes with management's right to determine its internal security practices under section 7106(a)(1). Defense Mapping Agency, 39 FLRA at 442.
Although Proposal 66 directly interferes with management's right to determine its internal security practices, the proposal is negotiable if it constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Department of Education, 38 FLRA at 1076-77.
Applying the principles set forth in KANG, 21 FLRA at 31-33, we find that the proposal is an arrangement for employees adversely affected by the Agency's exercise of its right to randomly test its employees for drug abuse. The Union describes the objective of the proposal as preventing the possibility of a second verified finding of illegal drug use when two drug tests are administered within a brief period. Removal from Federal service is required by section 5(d) of the Executive Order and section 5.d(8) of the FPM Letter upon a second confirmed finding that a employee uses illegal drugs. See generally, Energy, 41 FLRA at 1260-66. In accordance with the Union's description, we find that the proposal is intended to protect employees from mandatory separation from Government employment as the result of two positive drug tests attributable to a single instance of drug use. As such, it constitutes an arrangement. See id., at 1263.
Next, KANG requires that we examine whether the benefit to employees is outweighed by the interference with management's right to determine its internal security practices. Proposal 66 prohibits administering a random drug test only until the results of the initial test are received. The proposal does not require that the Agency postpone random testing indefinitely, or even for any fixed period of time. The delay lasts only until the results of the first test are known. It is reasonable to conclude, and not disputed, that such delay would be minimal.
On the other hand, the proposal protects an employee from mandatory termination for a single episode of drug use. We note, in this regard, that an agency is not required to terminate employees upon the first confirmed finding of illegal drug use. See FPM Letter 792-19, section 5.d(7). See also Mather AFB, 40 FLRA at 872-73. Indeed, the Executive Order and the FPM Letter prescribe rehabilitation and counseling as the preferred approach following an initial confirmed positive drug test. See id. at 874; Executive Order 12564, section 5(a) and FPM Letter 792-19, section 5.c.
Consistent with the preference expressed in the Executive Order and the FPM Letter for counseling and rehabilitation instead of termination for a single incident of drug use, and because the proposal would prohibit random testing for only a short time, we find that the impact of Proposal 66 on the Agency's right to determine its internal security practices is minimal. Against this minimal impact on management's rights stands the significant benefit to unit employees provided by protection from termination. On balance, we find that the benefit afforded employees by Proposal 66 outweighs the interference with management's right. We conclude, therefore, that the proposal does not excessively interfere with the Agency's right to determine its internal security practices. Accordingly, Proposal 66 constitutes a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.
XXIX. Order
The petition for review is dismissed as it pertains to Proposals 2, 4 (insofar as it applies to random drug testing and to reasonable suspicion testing of employees who encumber security or safety-sensitive positions), 12, 21 through 25, 27, 28, 29 (insofar as it applies to travel on official Government business), 35, 39, 42, 44, 47, 53, 54, and 59. The petition for review of Proposal 19 is dismissed without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are satisfied and the Union elects to file such an appeal.
The Agency must upon request or, as otherwise agreed to by the parties, bargain on Proposals 4 (insofar as it applies to reasonable suspicion testing of employees who do not encumber security or safety-sensitive positions), 5, 9, 14, 29 (insofar as it applies to leave), 30 through 32, 50 through 52, 61, 62A, and 66.(5)
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Although the word "normally" does not appear in the proposals as set forth in the Agency's statement of position, it appears in each of the proposals as set forth in the Union's petition, and the Agency addresses it in its supplemental briefs. Consequently, we will examine the proposals as set forth above.
2. In its petition for review and its reply brief, the Union used the word "training" instead of "travel" in Proposal 29. However, in its final submission, Response to Agency's Supplementary Brief, the Union used "travel." Further, both parties referred to employees' travel status in discussing Proposal 29. Therefore, we conclude the word "travel" in Proposal 29 is correct.
3. The Agency's plan provides the following:
An employee selected for random drug testing may obtain a deferral of testing if the employee's first-line and second-line supervisors concur that a compelling need necessitates a deferral on the grounds that the employee is:
1. In a leave status (sick, annual, administrative or leave without pay);
2. In official travel status away from the test site or is about to embark on official travel scheduled prior to testing notification;
An employee whose random drug test is deferred will be subject to an unannounced test within the following 60 days.
Petition for Review, Exhibit 2 (Department of Justice Drug-Free Workplace Plan, chapter 4.D.) at 18-19.
4. The Agency specifically asserts that the proposal is inconsistent with section 4.E. of its Agency-wide drug testing plan. See Statement of Position at 67, 68. That section addresses only an employee's failure to appear for testing. As it is not apparent how section 4.E. relates to Proposal 30, and as the Agency's arguments relate to the observation of the provision of urine specimens, we assume that the Agency intended to refer to section 4.H. of its Agency-wide plan, as set forth above.
5. In finding these proposals to be negotiable, we make no judgment as to their merits.