[ v42 p542 ]
42:0542(35)NG
The decision of the Authority follows:
42 FLRA No. 35
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This case is before the Authority based on a negotiability appeal filed by the Union(2) under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).(3) The appeal concerns the negotiability of six proposals involving the implementation of the Agency's drug testing program.
Proposal 4 requires that drug tests be given to employees in a sanitary, secluded area that affords employees visual and auditory privacy. The proposal, as explained by the Union, is inconsistent with the Guidelines for Federal Workplace Drug Testing (Guidelines), 53 Fed. Reg. 11970-11989 (1988). Therefore, the proposal is nonnegotiable under section 7117(a)(1) of the Statute.
Proposal 6 states that the authorized collection agent will collect all specimens. We find that the proposal does not interfere with management's rights to assign work, contract out or determine the personnel by which Agency operations will be conducted. We find the proposal to be negotiable.
Proposal 8, which requires the Agency to destroy any employee records concerning unconfirmed drug test results, is inconsistent with the Guidelines and Federal Personnel Manual (FPM) Supplement 293-31 and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.
Proposal 9 would prevent the Agency from requiring employees to sign any documents in which they agree or disagree to be tested for drug use. We find Proposal 9 to be nonnegotiable because it directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Proposal 10 states that no bargaining unit employee will be involved in any phase of the Agency's drug testing procedures. We find that the proposal is nonnegotiable because it directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
Proposal 11 states that the Agency will not coerce or require employees to participate in voluntary drug testing programs and that participation or non-participation in such programs will not advantage or disadvantage employees. The first part of the proposal is negotiable. The second part of the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with Executive Order 12564.
II. Preliminary Matter
The Agency claims that the petition for review is not properly before the Authority and should be dismissed as moot. The Agency argues that the parties at the level of exclusive recognition, namely, Local 1808 and Sierra Army Depot, completed negotiations regarding the Agency's drug testing program when they entered into a Memorandum of Agreement (MOA). The Agency asserts that the Union, which itself is not the exclusive representative, is now seeking review of proposals that were disposed of at the bargaining table.
The Agency notes that during the course of negotiations, Local 1808 sought to bargain over the proposals that are the subject of the instant petition. The proposals were declared nonnegotiable by the Agency and, according to the Agency, there was no request for a written allegation of nonnegotiability at that time. Instead, the parties continued to negotiate and reached agreement culminating in the MOA. The Agency argues that in negotiating the MOA, Local 1808 agreed to alternative language in lieu of the proposals declared nonnegotiable, thereby rendering those proposals moot.
After the parties reached agreement, the Agency head disapproved several provisions of the MOA while conducting a review under section 7114(c) of the Statute. Those provisions, which differ from the proposals in this case, were appealed to the Authority by the Union in Case No. 0-NG-1617, and were later resolved by the Authority in American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439 (1990) (Member Talkin dissenting in part) (Sierra Army Depot). The Agency notes that at the same time the appeal in Sierra Army Depot was filed with the Authority, the Union requested a written allegation of nonnegotiability from the Agency as to the proposals that were declared nonnegotiable during bargaining. In response, the Agency submitted a written allegation of nonnegotiability. Thereafter, the Union filed the instant petition for review with regard to those proposals. As noted, the Agency maintains that this petition for review is moot and, therefore, not properly before the Authority.
The Agency also states that a reopener provision contained in the MOA would not operate to reopen negotiations over the instant proposals. Instead, the Agency states that the reopener operates only if there is a change in law or regulation regarding the Agency's drug testing program. The Agency asserts that as there has been no change in law or regulation, the reopener would not apply, and any decision issued by the Authority would constitute an advisory opinion.
In response to the Agency's contentions, the Union argues that the agreement reached by the local parties constituted an "interim agreement" and that the local parties reached agreement only on matters "not declared outside the duty to bargain by the employer." Union Response at 10, 11 (emphasis omitted). Further, the Union argues that by entering into the MOA, the Union did not waive or forfeit the right to bargain or appeal the Agency's declaration of nonnegotiability, and that the Union did not otherwise withdraw or "'exchang[e]'" the disputed proposals. Id. at 14. The Union also argues that there was no understanding or agreement that the MOA "was the extent of the area the [U]nion wished to bargain over[.]" Id. at 16.
We reject the Agency's contention that the appeal is moot. There is no dispute that the Agency declared the proposals contained in the petition for review to be nonnegotiable. The Agency is now raising additional arguments as to whether the MOA constituted the complete agreement of the parties as to the Agency's drug testing plan and the effect of the reopener on subsequent negotiations.
It is well established that, where the conditions for review of a negotiability appeal have been met, a union is entitled to a decision from the Authority on whether disputed proposals are negotiable under the Statute, even though additional issues may exist, such as those relating to an agency's obligation to bargain under the terms of an agreement. See American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983); National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington, 39 FLRA 1272, 1275 (1991). Here, the Agency declared that the proposals were nonnegotiable. The Union disagreed with the Agency's allegation and filed a petition for review. The conditions governing review of a negotiability appeal, set forth in section 2424.1 of our Rules and Regulations, have been met. Consequently, we conclude that the petition for review is properly before us. To the extent that the Agency raises issues concerning the effect of the MOA on the Agency's obligation to bargain, those issues should be resolved in other, appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).
III. Proposal 4
Tests will be given in a sanitary, secluded area which provides the employee with both visual and auditory privacy. [Emphasis in original; entire proposal is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 4 is nonnegotiable because it conflicts with Executive Order 12564 and the Guidelines. The Agency also argues that the proposal excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
More specifically, the Agency states that section 4(c) of the Executive Order allows for individual privacy unless there is reason to believe that an individual may alter or substitute the specimen. The Agency argues that by precluding management from assigning an observer in the circumstances allowed by the Executive Order, the proposal is outside the duty to bargain. The Agency notes that Proposal 4 has the same effect as a proposal found nonnegotiable in National Federation of Federal Employees, Local 15 and Department of the Army, Armament Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046 (1988) (Rock Island I), remanded as to other matters sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988) (Order), decision on remand, 33 FLRA 436 (1988) (Rock Island II), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground), decision on remand, 35 FLRA 936 (1990) (Rock Island III).
The Agency further argues that the proposal is inconsistent with section 2.2(e) of the Guidelines, which restates section 4(c) of the Executive Order, and also with section 2.2(f)(14) of the Guidelines.(4) The Agency argues, as to those sections of the Guidelines, that direct observation is permitted when there is reason to believe that an individual may alter or substitute a specimen. By prohibiting direct observation in any circumstance, the Agency argues, the proposal is inconsistent with the Guidelines. Additionally, the Agency asserts that the proposal is inconsistent with section 2.2(f)(9) of the Guidelines, which permits the use of a public rest room as a collection site. The Agency contends that by requiring tests to be provided in a sanitary and secluded area, the proposal would prohibit the Agency from conducting tests in a public rest room when necessary.
The Agency also argues that the proposal interferes with management's right to determine its internal security practices by subjecting the Agency's choice of an internal security technique to bargaining. The Agency states that the technique of direct observation is necessary, under certain circumstances, to ensure the integrity of the drug testing process.
Finally, in its supplemental brief, the Agency responded to the Union's assertion that Proposal 4 should be read in conjunction with the Union's other proposals, particularly with Proposal 1. Proposal 1, which was withdrawn, provided, in part, that employees would not be subject to drug testing unless there was a reasonable, articulable suspicion to believe that the employee was under the influence of illegal drugs. The Agency argues that if Proposal 4 is to apply only when there is reasonable, articulable suspicion that an individual is under the influence of illegal drugs, the proposal would not permit the Agency to engage in random drug testing and, as such, the proposal is inconsistent with various court decisions and is outside the duty to bargain.
2. Union
The Union states that Proposal 4 should be read in conjunction with Proposal 1 and, when so read, the proposal is consistent with the Executive Order. According to the Union, allowing for privacy when a sample is provided, unless there is a reason to believe that an employee may be abusing illegal substances, "duplicates" section 4(c) of the Executive Order and "is not inconsistent with regulation." Union Response at 22.
B. Analysis and Conclusions
As explained below, we find that the proposal is not inconsistent with the Executive Order. However, the proposal is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with the Guidelines.
The Authority previously has addressed the requirements of section 4(c) of Executive Order 12564. That section provides, in relevant part, 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." In American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1094 (1990) (Member Talkin dissenting, in part) (Department of Education), decision on reconsideration, 39 FLRA 1241 (1991), petition for review filed sub nom. United States Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991), the Authority found that section 4(c) "mandates that agencies allow employees individual privacy when providing urine samples." Id. at 1094. The Authority also found that "[a]n agency may limit an employee's privacy only if the agency has reason to believe that the employee will attempt to alter or substitute his or her sample." Id. (5) Subsequently, in National Federation of Federal Employees, Council of GSA Locals and General Services Administration, 41 FLRA 728, 733 (1991) (GSA), the Authority found that section 4(c) of the Executive Order does not mandate direct observation in any circumstances, but simply provides an exception to the requirement that employees be afforded privacy. The exception that is stated in section 4(c) is where an agency has reason to believe that an employee may alter or substitute a specimen.
The Agency argues that the proposal is inconsistent with section 4(c) by precluding management from assigning an observer in the circumstances permitted by the Executive Order. We reject this contention. As the Executive Order does not require observation in any circumstances, the proposal is not inconsistent with section 4(c). For the same reason, we reject the Agency's contention that the proposal is inconsistent with section 2.2(e) of the Guidelines.(6) That section, which essentially restates section 4(c) of the Executive Order, also does not require direct observation during the administration of a drug test. Therefore, the proposal is not inconsistent with that section of the Guidelines.
We find, however, that the proposal is inconsistent with sections 2.2(f)(13) and (16) of the Guidelines. Those sections provide as follows:
(f) Integrity and Identity of Specimen. . . . The following minimum precautions shall be taken to ensure that unadulterated specimens are obtained and correctly identified:
. . . .
(13) If the temperature of a specimen is outside the range of 32.5 [degrees] - 37.7 [degrees]C/90.5 [degrees] - 99.8 [degrees]F, that is a reason to believe that the individual may have altered or substituted the specimen, and another specimen shall be collected under direct observation of a same gender collection site person and both specimens shall be forwarded to the laboratory for testing. . . .
. . . .
(16) Whenever there is reason to believe that a particular individual may alter or substitute the specimen to be provided, a second specimen shall be obtained as soon as possible under the direct observation of a same gender collection site person.
The proposal states that tests will be given in a sanitary and secluded area that provides employees with visual and auditory privacy. As explained by the Union, privacy would not be required when there is a reason to believe that an employee "may be abusing illegal substances." Union Response at 22. It is clear from the Union's statement that this is the sole circumstance under which the Agency could forego the privacy requirement. Sections 2.2(f)(13) and (16) of the Guidelines require the collection of specimens under direct observation in certain defined circumstances, however. More particularly, section 2.2(f)(13) provides that if a specimen is outside a specified temperature range, that fact constitutes a reasonable belief that an employee may have altered or substituted the specimen. Under such circumstances, the Guidelines require the collection of another specimen under the direct observation of a same gender collection site person. Similarly, section 2.2(f)(16) of the Guidelines requires that, in certain situations, second specimens must be obtained under direct observation. Although Proposal 4 does not specifically prevent the Agency from limiting an employee's privacy if the Agency believes the employee may alter or substitute a specimen, we find that the Union's explanation as to the limited circumstances under which the Agency could forego the privacy requirement prevents the Agency from conducting drug tests under direct observation where required by the Guidelines. Thus, Proposal 4 is inconsistent with sections 2.2(f)(13) and (16) of the Guidelines because the proposal would allow direct observation only when there is reason to believe that an employee may be abusing illegal substances.
Stated otherwise, Proposal 4 contemplates that privacy must be provided during the administration of a drug test unless a determination has been made that an employee may be abusing illegal substances. However, there may be additional situations that could give rise to a reasonable belief that an employee may alter or substitute a specimen that are not based on an employee's suspected drug abuse, and the proposal would require the Agency to provide both visual and auditory privacy under such circumstances as well. Therefore, the Union's assertion that the proposal is consistent with regulation must be rejected.
The proposal here is distinguishable from both Department of Education and GSA. In Department of Education, we found negotiable a proposal stating that tests will be given in a sanitary and secluded area that provides employees with privacy. Although the language of the proposal in that case is similar to the language of Proposal 4, we reach a different result here based on the differing meanings ascribed to each proposal by the respective unions. In Department of Education, the union stated that its intent was to implement the proposal consistent with law, rule, and regulation and, further, that the requirement for privacy contained in the proposal could be obviated if the agency had a reasonable suspicion that an employee might attempt to invalidate or falsify a specimen. We found that the union's explanation as to the manner in which the proposal was intended to operate was consistent with both the Executive Order and the Guidelines. We noted, particularly, that the union's use of the term "reasonable suspicion" was consistent with the term "reason to believe" as set forth in section 4(c) of the Executive Order. We further found that the proposal did not "in any way prevent the [a]gency from exercising its right to limit an employee's privacy if it has a reason to believe that the employee will alter the sample." Id. at 1095. In contrast, the proposal here would limit the Agency's ability to dispense with the privacy requirement unless it appears that an employee is "abusing illegal substances." Union Response at 22. As we stated above, there are other circumstances, set forth in the Guidelines, which require direct observation during the administration of a drug test that are not contingent on an employee's abuse of illegal drugs.
In GSA, the union proposal at issue specifically permitted observation when collection site personnel had reason to believe that an employee might alter or substitute a specimen based on criteria set forth in an agency regulation. Although the inquiry focused on whether the criteria contained in the regulation were consistent with law and regulation, the proposal, unlike that present here, expressly referenced the agency's ability to suspend the requirement for privacy where there was reason to believe an employee might alter or substitute a specimen.
In conclusion, we find that the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with the Guidelines, which previously have been found to constitute a Government-wide regulation. Aberdeen Proving Ground, 890 F.2d at 469-70; Rock Island II, 33 FLRA at 438-39. As the proposal is inconsistent with sections 2.2(f)(13) and (16) of the Guidelines, we need not address the Agency's additional contention concerning section 2.2(f)(9) of the Guidelines, and the effect of the proposal on the Agency's ability to conduct a drug test in a public rest room. It is also unnecessary to address the Agency's contention that the proposal interferes with the exercise of management's right to determine its internal security practices.
IV. Proposal 6
The authorized collection agent will collect all drug testing specimens.
A. Positions of the Parties
1. Agency
The Agency contends that the proposal should be dismissed because it lacks clear meaning and intent. Alternatively, the Agency argues that the proposal interferes with management's right to assign work under 7106(a)(2)(B) of the Statute. The Agency notes that the Guidelines delegate certain responsibilities to collection site personnel and that the Agency appoints its own employees as collection site personnel. The Agency states that "[w]e want to be sure that Proposal 6 does not, somehow, interfere with that authority." Statement of Position at 12. The Agency also cites various Authority decisions finding that proposals assigning specific duties to particular individuals interfere with an agency's right to assign work.
In its supplemental submission the Agency argues that the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. The Agency also references findings made by the Authority in Rock Island I, 30 FLRA 1046, 1061-66 (1988) (Proposal 3), that a proposal regarding the use of qualified and certified test personnel interfered with management's rights to assign work and contract out under section 7106(a)(2)(B) of the Statute and with management's right to determine the type of employees who perform work under section 7106(b)(1) of the Statute. Although the Agency acknowledges that in Aberdeen Proving Ground the court found that proposal was nonnegotiable on the basis that it conflicted with the Guidelines, rather than being inconsistent with the exercise of management's rights, the Agency nonetheless states that "like the Rock Island proposal, [Proposal 6] conflicts with the right to assign work, to contract out, and to determine the type of employee to perform the work." Agency's Supplemental Brief at 18.
2. Union
The Union explains that Proposal 6 requires that all drug testing specimens be collected by "an authorized official and not just any individual." Union Response at 28. According to the Union, the proposal pertains to the protection of the chain of custody and employee privacy. The Union adds that the proposal is similar to Proposal 3 in Rock Island I, which constituted a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
B. Analysis and Conclusions
Proposal 6 requires that an authorized collection agent collect all drug testing specimens. Contrary to the Agency, we find that the proposal is sufficiently specific to enable us to resolve the negotiability of the proposal and, further, that the proposal is negotiable.
The Agency claims that the proposal interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. We disagree. It is well established that the right to assign work under section 7106(a)(2)(B) includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399 (1990) (National Weather Service). The proposal here simply requires that drug testing specimens be collected by an authorized collection agent. The proposal does not require the Agency to assign specific duties to particular individuals or prescribe the identity or qualifications of the individuals who are authorized to make collections. For example, the Agency would be free to continue assigning collection responsibilities to its own employees. Under these circumstances, we find that the proposal does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute..(7)
Moreover, we find that the proposal requires no more than is required by section 2.2 of the Guidelines. That section contains the standards to which agencies must adhere in establishing procedures governing the handling and transportation of urine specimens from one authorized individual to another. See Department of Education, 38 FLRA at 1105. The proposal contains no language that would prevent the Agency from adhering to those standards. Additionally, to the extent that the Guidelines require that authorized individuals handle specimens, the Union's statement that the proposal is designed to ensure that "not just any individual[]" collects specimens, Union Response at 28, is consistent with the Guidelines.
Finally, we reject the Agency's reliance on Rock Island I for the proposition that the proposal here, like Proposal 3 in Rock Island I, interferes with management's rights to contract out under section 7106(a)(2)(B) of the Statute and to determine the type of employees who perform work under section 7106(b)(1) of the Statute. In Aberdeen Proving Ground, the court declined to evaluate the effect of Proposal 3 on management's rights. Instead, the court found that the proposal, which was designed to ensure that urinalysis testing was not performed by unqualified or uncertified personnel, was inconsistent with the Guidelines. The Authority's findings in Rock Island I, therefore, no longer support the arguments raised by the Agency. Additionally, other than setting forth a bare assertion, the Agency has not shown or argued the applicability of these additional management rights to Proposal 6. However, even if the Agency had made such a showing, we would nonetheless find that the Agency's arguments are misplaced. First, there is nothing in the plain wording of the proposal that addresses any aspect of agency action involving contractors. Second, as the proposal does not prescribe the identity or qualifications of the individuals authorized to make collections or require that particular individuals be assigned specific duties, the proposal would not interfere with the Agency's right to determine the personnel who will conduct Agency operations.
V. Proposal 8
The agency shall destroy any employee records concerning non-confirmed test results.
A. Positions of the Parties
1. Agency
The Agency argues that Proposal 8 is not sufficiently clear in its application to the Agency and, therefore, should be dismissed. The Agency states that although the proposal appears to refer to the destruction of unconfirmed positive test results, the Agency "does not receive any positive test result until the test is confirmed and the Medical Review Officer finds that the tests are positive. . . . Therefore, there will be no records for the activity to destroy." Statement of Position at 13.
In the alternative, the Agency argues that the proposal is nonnegotiable because it is inconsistent with the Guidelines. The Agency notes that section 2.4(m) of the Guidelines requires all drug testing laboratories to maintain and make available for at least 2 years documentation of all aspects of the drug testing process. The Agency argues that Proposal 8 would conflict with Section 2.4(m) of the Guidelines if interpreted to mean that "the agency['s] (Army) drug testing laboratories would have to destroy such records." Id. (emphasis in original).
2. Union
The Union states that Proposal 8 was drafted during the period when the Agency was involved in handling drug-testing records, including unconfirmed positive results. The Union states that "notwithstanding the fact that the [A]gency has changed its program to preclude such an occasion, if there are no records present, then the proposal cannot violate an [A]gency policy or regulation." Union Response at 30.
The Union further argues that the proposal is consistent with the Guidelines, which require that the Agency "not keep such records as are the object of the proposal." Id. The Union also maintains that the proposal does not involve any management right and that none has been argued by the Agency.
B. Analysis and Conclusions
Although there is some dispute between the parties as to the applicability of the proposal in the face of the Agency's claim that it does not receive unconfirmed test results, the parties have addressed the substance of the proposal, and we shall do so as well.
Proposal 8 is virtually identical to a proposal that was found nonnegotiable in Department of Education, 38 FLRA at 1109-12. We found that the proposal in that case was inconsistent with the requirement in FPM Supplement 293-31 that agencies retain records concerning the results of laboratory drug testing in an Employee Medical File System. We also found that the proposal was inconsistent with the requirements in the Guidelines concerning the reporting of test results and the maintenance of records on urinalysis testing. We found, specifically, that unconfirmed initial test results must be characterized and reported as negative test results, and that requiring agencies to destroy negative results would prevent agencies from complying with the Guidelines' reporting requirements. As both FPM Supplement 293-31 and the Guidelines are Government-wide regulations, we concluded that the proposal was outside the duty to bargain under section 7117(a)(1) of the Statute.
As Proposal 8 would require the Agency to destroy non-confirmed, or negative test results, we find, for the reasons more fully discussed in Department of Education, that Proposal 8 is nonnegotiable.
VI. Proposal 9
No employees shall be required to sign any document associated with the drug abuse testing programs stating he or she agrees or disagrees to be tested.
A. Positions of the Parties
l. The Agency
The Agency contends that Proposal 9 directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. The Agency states that, as part of its drug testing program, it has developed a "'Condition of Employment' form that requires certain employees to adhere to the terms of the drug testing program as a continuing condition of employment." Statement of Position at 14. The Agency argues that proposals similar to Proposal 9 were found nonnegotiable in National Association of Government Employees, Local R14-5 and Pueblo Depot Activity, Pueblo, Colorado, 31 FLRA 62 (1988) (Pueblo Depot Activity) and American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45 (1988) (Tooele Army Depot) and, as Proposal 9 "has the same effect . . ." Proposal 9 should also be found nonnegotiable. Statement of Position at 14. The Agency also argues that Proposal 9 is not an appropriate arrangement under section 7106(b)(3) of the Statute because it excessively interferes with the exercise of management's right to determine its internal security practices.
In its supplemental submission, the Agency responds to a constitutional issue raised by the Union by stating that the issue has been "settled by the courts." Agency's Supplemental Brief at 18.
2. The Union
The Union acknowledges that the Authority found that an identical proposal in Tooele Army Depot was nonnegotiable. However, the Union disagrees with that decision and urges the Authority to reconsider its policy in this area. The Union states that its proposal, like that at issue in Tooele Army Depot, "goes to the forced agreement to be tested as opposed to . . . a statement that the employee acknowledges that they may have to submit to testing." Union Response at 30 (emphasis in original). The Union asserts that forcing an employee to agree to testing involves significant constitutional questions regarding freedom of expression and speech. The Union states that its proposal "merely bars the agency from forcing agreement from an employee." Id. at 31.
B. Analysis and Conclusions
We find that Proposal 9 is nonnegotiable because it directly and excessively interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices.
Before addressing the merits of the proposal, we note that although both parties agree that Proposal 9 is to the "same effect" or "identical" to a proposal in Tooele Army Depot, Statement of Position at 14, Union Response at 30, the language of Proposal 9 differs in one respect from the language of the proposal in Tooele Army Depot. The language in Proposal 9 provides that an employee will not be required to sign a document agreeing or disagreeing "to be tested." The proposals in Tooele Army Depot and the subsequent cases discussed below are somewhat different in that they linked the signing of a document to an employee's agreement or disagreement with the agency's drug testing program. As the parties have agreed that Tooele Army Depot is applicable and/or controlling, however, and as the Authority's analysis in Tooele Army Depot and subsequent cases is applicable here, we will address Proposal 9 as the parties have agreed it should be interpreted.
In Tooele Army Depot, 31 FLRA at 51-57, and Pueblo Depot Activity, 31 FLRA at 65-67, the Authority found that proposals preventing an agency from requiring employees to sign documents agreeing to comply with the agency's drug testing program directly and excessively interfered with the agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Authority subsequently reaffirmed Tooele Army Depot in Department of Education, 38 FLRA at 1116-18 and American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203, 1216-19 (1990) (Member Talkin dissenting, in part). The Authority found that proposals that would preclude an agency from requiring that employees agree to submit to testing for the use of illegal drugs as a condition of their employment in critical positions directly interfere with management's right to determine its internal security practices. Additionally, the Authority found that such proposals excessively interfere with management's right to determine its internal security practices and, therefore, do not constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute.
Proposal 9 would prevent the Agency from requiring certain employees to sign a "Condition of Employment" form in which they agree to submit to testing under the Agency's drug testing program. As such, the proposal has a potentially greater effect on the ability of the Agency to conduct its drug testing program than did the proposals found to be nonnegotiable in Tooele Army Depot. Consequently, we find that Proposal 9 directly and excessively interferes with the exercise of the Agency's right to determine its internal security practices.(8)
VII. Proposal 10
No bargaining unit employee will be involved in any phase of the drug testing procedures.
A. Positions of the Parties
1. Agency
The Agency maintains that Proposal 10 is subject to more than one interpretation. The Agency contends that, depending on how Proposal 10 is interpreted, it either: (1) interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute; or (2) is inconsistent with Executive Order 12564 and directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
With regard to its first argument, the Agency asserts that the proposal would prevent the assignment of work relating to any phase of the drug testing process. By way of example, the Agency states that it would not be able to assign an employee to serve as a collection site person under section 2.2(f)(9) of the Guidelines for the purpose of either accompanying an individual into or securing a public rest room for use as a specimen collection site.
With regard to its second argument, the Agency states that the proposal could be read to preclude the testing of employees under any circumstances. The Agency argues that the proposal would, thereby, conflict with the Executive Order and directly and excessively interfere with management's right to determine its internal security practices.
2. Union
The Union states that Proposal 10 "is not intended to apply to employees as subjects of testing; it is only meant in the administration and management of the testing process itself." Union Response at 33 (emphasis in original). The Union explains that the proposal seeks to protect against "conflict-of-interest situations" in which employees might be "subject to improper intervention in the drug testing process[,]" and to prevent employees "from being pitted against one another with possible resulting false incrimination, or at the least, false accusations." Id. at 32.
B. Analysis and Conclusions
We find that Proposal 10 directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Therefore, it is nonnegotiable.
The plain wording of Proposal 10 states that unit employees will not be involved in any phase of drug testing procedures. The Union states that the proposal is not intended to apply to employees as subjects of testing but, rather, is intended to apply to the administration and management of the drug testing process. As so interpreted, the Agency concedes the proposal would not prevent it from lawfully requiring employees to undergo drug tests. Consequently, to the extent that the Agency has raised arguments concerning an alternative interpretation of the proposal, those arguments need not be considered further. Instead, we will address only the Agency's argument that the proposal directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
In this connection, the Agency argues that the proposal would prevent the Agency from requiring unit employees to perform any work assignments pertaining to collection procedures that are contained in section 2.2 of the Guidelines. As we stated previously, management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties that will be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. National Weather Service, 37 FLRA at 399. Based on the Agency's uncontradicted assertion that the proposal would prevent the Agency from assigning duties to unit employees, we find that Proposal 10 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.
This finding does not end the inquiry, however. Where a union alleges that a proposal is designed to offer benefits or protections for employees, we will assess whether the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. To determine whether a proposal constitutes an appropriate arrangement, we must decide whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right, and whether the proposal is appropriate because it does not excessively interfere with the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986). For the reasons set forth below, we conclude that the proposal excessively interferes with the exercise of management's right to assign work.
The Union states that the proposal is designed to prevent situations in which unit employees might be compromised by their drug testing assignments in their dealings with other unit employees. We find that the proposal thus constitutes an arrangement for employees adversely affected by management's right to assign work.
We further find, after balancing the competing interests of the Agency in being able to assign work and the interests of employees in ensuring that they are not placed in compromising situations, that the proposal would excessively interfere with the exercise of management's right to assign work. It is clear that unit employees who are called on to assume drug testing duties would be placed in sensitive, or at the very least, awkward positions if such duties involved fellow unit employees. At the same time, however, the proposal would prevent the Agency from assigning duties pertaining to any phase of the Agency's drug testing procedures to unit employees. The restriction placed on the Agency's ability to assign work is absolute. The proposal contains no exception for any drug testing activity with which unit employees may become involved. The Agency's ability to assign work would be seriously impaired under the proposal. On balance, therefore, we conclude that the proposal excessively interferes with the Agency's right to assign work.
VIII. Proposal 11
The employer will not coerce or require employees to participate in voluntary drug testing programs. Participation or non-participation in these programs will neither advantage or disadvantage employees.
A. Positions of the Parties
1. Agency
The Agency contends that the meaning of the term voluntary in the first sentence of the proposal is not clear, given the different meanings ascribed to that term in other Union proposals, including some that were later withdrawn by the Union. The Agency states, with regard to voluntary drug testing programs under section 3(b) of Executive Order 12564, that it "does not coerce or require any employee to participate in the voluntary testing program established under the Executive Order." Statement of Position at 16. However, in view of the Union's general use of the term "voluntary" in other proposals, the Agency maintains that the first sentence of Proposal 11 is inconsistent with the Executive Order and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
The Agency also argues that the second sentence of the proposal is inconsistent with sections 5(b) and (d) of Executive Order 12564 as well as management's right to discipline employees under section 7106(a)(2)(A) of the Statute. With regard to the Executive Order, the Agency states that if the proposal is intended to refer to voluntary drug testing under section 3(b) of the Executive Order, an employee who voluntarily submits to drug testing and tests positive, would be free from any "'disadvantageous' personnel actions required by EO 12564." Id. The Agency notes that section 5(b) of the Executive Order insulates from discipline only those employees who identify themselves as drug users or who volunteer for drug testing prior to being identified as illegal drug users through other means, and who meet other specified criteria. The Agency states that the proposal would provide complete protection for an employee because the employee could participate in the drug testing program by volunteering to be tested either before or after being identified through other means, and thus be free of any "'disadvantage.'" Id.
The Agency also argues that the second sentence of the proposal is inconsistent with section 5(d) of the Executive Order, which requires the removal of any employee who is found to use illegal drugs through any means, and who thereafter refuses counseling or rehabilitation and who fails to refrain from illegal drug use. The Agency states that the removal is required irrespective of whether the employee is found to use illegal drugs through random testing, reasonable suspicion testing, or voluntary testing. The Agency argues that the second sentence of the proposal "provides a blanket protection for drug users." Id. at 17.
The Agency also argues that the proposal would prevent the Agency from taking disciplinary action against any employee who voluntarily agrees to testing, tests positive, and refrains from using drugs. The Agency argues that the proposal thus directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute.
Finally, the Agency contends that the second sentence of the proposal could be interpreted to mean that no sanctions could be applied to employees who refuse to participate in the other forms of drug testing authorized under Executive Order 12564, apart from voluntary testing under section 3(b). If that were the case, the Agency asserts that the second sentence of the proposal is inconsistent with Executive Order 12564 and excessively interferes with the Agency's right to determine its internal security practices.
2. Union
The Union states that the proposal "seeks to clearly state an employee's right to participate or not to participate in voluntary programs. By definition, if the program is voluntary, then there is no intrusion upon the 'right to assign.'" Union Response at 33. The Union further states that the term "'voluntary' is used in referencing 'voluntary drug testing programs[,]'" that "nothing in the word 'voluntary' means 'mandatory[,]'" and that the proposal "is otherwise consistent with law, rule or regulation." Id.
B. Analysis and Conclusions
1. The First Sentence of Proposal 11 Is Negotiable
The first sentence of the proposal refers to voluntary drug testing programs. We reject the Agency's contention that the first sentence of the proposal does not clearly set forth the meaning that should be ascribed to the term. Instead, we find that the proposal is merely designed to ensure that the Agency adhere to its stated practice of not coercing or requiring any employee to participate in voluntary drug testing. Inherent in the nature of any voluntary activity is consensual, noncoercive participation. The proposal requires nothing more than the Agency claims is its practice, and nothing more than is otherwise inherent in voluntary drug testing programs under section 3(b) of Executive Order 12564.
We also reject the Agency's assertion that, based on the use of the term "voluntary" in other proposals, the first sentence of Proposal 11 excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. As stated above, the use of the term voluntary refers to voluntary drug testing programs under section 3(b) of the Executive Order, and not to any other matter. Also, nothing contained in the proposal references or is intended to apply to any other form of drug testing authorized under Executive Order 12564. Consequently, the Agency would not be prevented from subjecting employees to any other lawful drug testing. Accordingly, we find that the proposal does not conflict with the Executive Order or interfere with the Agency's right to determine its internal security practices, as alleged.
2. The Second Sentence of Proposal 11 Is Nonnegotiable
The second sentence of the proposal provides that participation or nonparticipation in voluntary drug testing programs will neither advantage nor disadvantage employees. The Agency argues that the proposal is inconsistent with section 5 of the Executive Order and the right to discipline under section 7106(a)(2)(A) of the Statute. The Agency argues, more particularly, that if an employee participates in a voluntary drug test and tests positive, the proposal would prevent the Agency from taking disciplinary action, such as a removal. We agree.
The Authority has stated that section 5(b) of the Executive Order requires agencies to "'initiate action to discipline any employee who is found to use illegal drugs[,]'" but that the requirement does not apply to employees who "'voluntarily identify themselves as users of illegal drugs,' 'obtain counseling or rehabilitation through an'" Employee Assistance Program, and thereafter refrain from using illegal drugs. See 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). Consequently, the Authority has found that proposals that preclude an agency from disciplining employees who voluntarily disclose that they use, or have used, illegal drugs, enter rehabilitation, and refrain from using drugs thereafter, do not conflict with the Executive Order. The Authority further has found, however, that such proposals directly interfere with management's right to discipline under section 7106(a)(2)(A) of the Statute. See National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1140 (1991).
The second sentence of Proposal 11 is nonnegotiable for two reasons. First, by stating that there will be no disadvantage to employees who participate in voluntary drug testing programs, the proposal would prevent the Agency from removing an employee in accordance with the requirements contained in the Executive Order, if it is determined, following a voluntary drug test, that the employee is using illegal drugs. What distinguishes this proposal from those that are consistent with the Executive Order is that the proposal here makes no reference to the additional requirements in section 5(b) that the employee obtain counseling or rehabilitation and thereafter refrain from illegal drug use. The proposal, as the Agency contends, would provide blanket protection to an identified illegal drug user.
Second, by preventing the Agency from taking disciplinary action against employees, the second sentence of the proposal directly interferes with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute. Unlike proposals that have been found to constitute negotiable appropriate arrangements under section 7106(b)(3) of the Statute, the Union has made no claim that the proposal here was intended as an appropriate arrangement. In any event, as the proposal is inconsistent with the Executive Order, the proposal could not constitute a negotiable appropriate arrangement.
IX. Order
The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposal 6 and the first sentence of Proposal 11.(9) The petition for review as to Proposals 4, 8, 9 and 10 and the second sentence of Proposal 11 is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Member Talkin's dissenting opinion as to Proposal 9 is set forth at footnote 8.
2. Both the petition for review and the response to the Agency's statement of position were filed by the American Federation of Government Employees (AFGE) for and on behalf of AFGE's Local 1808. All references to the Union will hereinafter refer to AFGE.
3. 3/ The Authority directed the parties to file supplemental briefs addressing the applicability of Federal court decisions issued during the pendency of this case, which involved Federal agency drug testing programs. Both the Union and the Agency filed supplemental briefs which we have considered. In its supplemental brief, the Union requested that Proposals 1, 2, 3 and 5 be withdrawn from its appeal. The request is hereby granted. In its supplemental brief, the Agency withdrew its allegation of nonnegotiability as to Proposal 7. Accordingly, we will not address the negotiability of Proposals 1, 2, 3, 5 and 7.
4. Although it referenced section 2.2(f)(14) of the Guidelines, the Agency quoted, and obviously intended to reference, section 2.2(f)(16) of the Guidelines.
5. In Department of Education, the Authority also reexamined the proposal in Rock Island I on which the Agency now relies. 38 FLRA at 1096. As the Authority stated that it would no longer follow the interpretation of that proposal, we will not address further the Agency's argument here that Proposal 4 is to the same effect as the proposal in Rock Island I.
6. Section 2.2(e) of the Guidelines provides:
Privacy. Procedures for collecting urine specimens shall allow individual privacy unless there is reason to believe that a particular individual may alter or substitute the specimen to be provided.
7. In view of this finding, we need not address the Agency's contention that the proposal does not constitute a negotiable appropriate arrangement for employees adversely affected by the exercise of a management right.
8. For the reasons more fully discussed in her dissenting opinion in Department of Education, Member Talkin would find Proposal 9 to be negotiable on the grounds that an agency's inability to obtain written, advance consent from employees would not prevent the Agency from otherwise lawfully subjecting employees to drug testing. Even assuming the proposal could be read as directly interfering with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, however, Member Talkin would find that the proposal constitutes a negotiable appropriate arrangement, based on her view that the proposal simply allows employees who choose not to sign such a document to express their views concerning the Agency's drug testing program. In assessing the effect of the proposal on the Agency's right to determine its internal security practices, therefore, Member Talkin would find that the burden placed on the Agency's exercise of its right would be minimal. The Agency would still be permitted to test employees, in appropriate circumstances, and to take whatever action is necessary if an employee were to refuse to submit to a drug test. By contrast, Member Talkin would find that the benefits to employees that would be afforded under the proposal, which would include the expression of personal beliefs and views, outweigh any limited burden that would be imposed on the Agency.
9. In finding these proposals negotiable, we make no judgment as to their merits.