45:0270(24)NG - - NTEU Chapters 243 and 245 and Commerce, Patent and Trademark Office - - 1992 FLRAdec NG - - v45 p270
[ v45 p270 ]
The decision of the Authority follows:
45 FLRA No. 24
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The dispute concerns the negotiability of three proposals addressing the Agency's implementation of its Drug Free Workplace Plan (Plan).
Proposal 1 requires the Agency to pay employees who have been subjected to random and reasonable suspicion drug testing, and who have tested negative, $25.00 to compensate for any negative impact such as humiliation and embarrassment. We find that Proposal 1 is nonnegotiable under section 7103(a)(14)(C) of the Statute because it concerns a matter that is specifically provided for by Federal statute.
Proposal 2 requires the Agency to provide each bargaining unit with copies of any drug testing training manual prepared for supervisors. We find that the proposal is negotiable.
Proposal 3 requires the Agency to follow all notice and procedural requirements in the parties' agreement, the Agency's Plan, or the HHS Guidelines (Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS), 53 Fed. Reg. 11970-89 (1988)) whenever a replacement sample is required because the original specimen is lost, mishandled, or the test results invalidated for reasons outside an employee's control. We find that Proposal 3 is negotiable.
II. Proposal 1
Article 1, section H. Employees subject to random or reasonable suspicion testing, who test negative, will receive twenty-five ($25.00) dollars as an appropriate arrangement for the negative impact (e.g. humiliation/embarrassment). Such payment will further encourage the goal of obtaining a drug free workplace.
A. Positions of the Parties
The Agency states that Proposal 1 would require it to pay employees $25.00 for undergoing a drug test and testing negative. The Agency asserts that the proposal directly interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute and is inconsistent with "[G]overnment pay regulations," citing 5 U.S.C. ° 5532 et seq. and 5 C.F.R. ° 530, et seq. Statement of Position (Statement) at 3. According to the Agency, the proposal would require it to "pay employees additional wages over and above their salary for performing the assigned duty of taking the drug test." Id. The Agency states that there is no provision in Executive Order 12564, Governmental pay regulations, or in any other statute or regulation which grants the Agency the discretion to make payments for this type of duty.
According to the Agency, the Union claims that the $25.00 will ameliorate the adverse impact of Agency action that is destructive of personal dignity. The Agency asserts that the proposal may not be considered as an appropriate arrangement because the adverse impact referred to by the Union arises not from the exercise of management's right under section 7106(a)(1) of the Statute, but from the Agency's compliance with Executive Order 12564. The Agency further argues that even if the alleged offense to employees' dignity constitutes the adverse effect of the exercise of a management right, the "proposal is not primarily designed to ameliorate that adverse impact." Id. at 5. Rather, in the Agency's view, the proposal is designed to require the Agency to pay employees to perform the duties which allegedly create the impact.
The Agency notes that the Union now argues "that the $25.00 employee bonus is really intended to be an incentive award under 5 C.F.R. [Part 451]." Id. at 6. The Agency asserts that the proposal "on its face, clearly does not constitute an incentive award." Id. Quoting 5 C.F.R. ° 451.102, the Agency states that such awards "'are designed to improve Government efficiency, economy and effectiveness by motivating employees to increase productivity and creativity by rewarding their efforts which benefit the [G]overnment.'" Id. The Agency asserts that it is "ludicrous to even consider a proposal to pay employees a $25.00 bonus not to use illegal drugs as being designed to increase efficiency or motivating employees to increase productivity." Id. at 6-7. The Agency also contends that even if the proposal is intended to create a new kind of incentive award, it is still nonnegotiable because proposals which compel the Agency to establish a new awards program are not negotiable.
The Union did not file a response to the Agency's statement of position. In its Petition for Review (Petition), the Union asserts that "[a]lthough [Proposal 1] impacts the Agency's right to determine [its internal] security practices, it is clearly an appropriate arrangement" under section 7106(b)(3) of the Statute for employees adversely affected by the "invasiveness" of mandatory drug testing without cause. Petition at 1 and 2.
The Union further contends that it "does not characterize the $25.00 payment to employees . . . as wages, but rather as a special act award or 'on the spot' award" under 5 C.F.R. Part 451. Id. at 2. The Union contends that the "award would reward the [G]overnment's goal of obtaining a drug free workplace[,]" and that the award would have to comply with the requirements of 5 C.F.R. ° 451.104(e). Id.
As to the Agency's contention that Executive Order 12564 does not provide for such an award, the Union notes, quoting section 2(a) of the Executive Order, that the Executive Order requires the head of each agency "'to develop a plan for  achieving the objective of a drug[-]free workplace with due consideration of the rights of the [G]overnment, the employee, and the general public.'" Id. (emphasis by Union omitted). The Union asserts that the $25.00 award to the employee furthers the "[G]overnment's interest in achieving a drug-free workplace and also mitigates the invasion of employee privacy." Id. at 3. The Union states that the $25.00, like all expenses associated with establishing a drug testing program, is authorized by the Executive Order.
B. Analysis and Conclusions
We conclude that Proposal 1 concerns matters excluded from the definition of conditions of employment by section 7103(a)(14)(C) of the Statute and, therefore, that the proposal is nonnegotiable.
Proposal 1 provides that "[e]mployees subject to random or reasonable suspicion testing, who test negative," will receive $25.00 as an appropriate arrangement for the negative impact--for example, humiliation or embarrassment--that results from the tests. The Union explains that the proposal is intended to mitigate the invasion of employees' personal privacy and damage to personal dignity that is a consequence of the tests. We find that, as worded and explained by the Union, the purpose of the proposal is to compensate employees for harm done by the drug tests rather than to reward employees for being drug free. In short, we find that the purpose of the proposal is to provide employees with damages for the injury that results from the fact that they have been subjected to a drug test.
Interpreted in this manner, we find that Proposal 1 has the same effect as a portion of the second sentence of Proposal 39 in American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 491-92 (1991) (Department of Justice), petition for review filed sub nom. United States Department of Justice, Justice Management Division v. FLRA, No. 91-1582 (D.C. Cir. Nov. 26, 1991). In Department of Justice, we found that a portion of the second sentence of Proposal 39 requiring the agency to provide its employees with recompense for mental duress associated with having been subjected to drug testing was nonnegotiable because it concerned matters excluded from the definition of conditions of employment by section 7103(a)(14)(C) of the Statute. In so finding, we stated that employees seeking damages from the Government in such circumstances could 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, for the reasons stated in Department of Justice, we conclude that Proposal 1 is nonnegotiable. Moreover, because Proposal 1 concerns matters which are specifically provided for by law and, therefore, are excluded from the definition of conditions of employment under section 7103(a)(14)(C), we do not reach either the Union's claim that the proposal concerns an appropriate arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute or the Agency's other arguments. See Department of Justice, 42 FLRA at 492.
III. Proposal 2
Article 2, Supervisors, Section C.
If a manual is prepared for supervisors in addition to, or different from, that given to employees, each bargaining unit shall be given copies of such manual.
A. Positions of the Parties
According to the Agency, the "supervisory manuals" that it would be required to provide unit employees under Proposal 2 "would include, inter alia, supervisory training information, guidance regarding the [A]gency's drug testing plan, and instructions to supervisors regarding their role in complying with or enforcing the parties' negotiated agreement regarding drug testing." Statement at 7-8. The Agency claims, therefore, that the proposal is inconsistent with section 7114(b)(4)(C) of the Statute because, under section 7114(b)(4)(C), management is not obligated to release information that includes guidance, advice or training for supervisors relating to collective bargaining. In support of its position, the Agency cites National Labor Relations Board, 38 FLRA 506 (1990) (NLRB), vacated and remanded National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992).
According to the Agency, the parties have reached tentative agreement on over fifty proposals proffered by the Union during bargaining on the implementation of the Agency's drug testing plan. The Agency states that it appears that an agreement containing the agreed-upon proposals will be signed by the parties prior to the implementation of drug testing in the unit and prior to the preparation of a supervisory training manual. The Agency asserts that, under these circumstances, "it is obvious that the major contents, if not the only contents, of any supervisory training manual would be guidance, advice and training as to how this bargaining agreement should be applied by supervisors." Statement at 9. The Agency claims that guidance, advice, and training regarding the agreement constitutes guidance, advice, and training relating to collective bargaining within the meaning of section 7114(b)(4)(C) of the Statute.
The Union states that Proposal 2 is intended to require the Agency "to provide the Union a copy" of the manual so that the Union "can ensure that supervisors implement the drug testing plan properly." Petition at 3. The Union asserts that there is no indication that the manual will contain negotiating tactics and strategies, guidance on evaluating Union proposals or advice on negotiating tactics. The Union also contends that the training manual may constitute guidance or advice to managers related to drug testing, but it does not constitute guidance or advice related to collective bargaining.
B. Analysis and Conclusions
We conclude that Proposal 2 is negotiable.
Proposal 2 requires the Agency to provide supervisory training manuals concerning drug testing to "each bargaining unit," if such manuals are different from the drug testing manuals given to unit employees. The Union states that the proposal is intended to require the Agency "to provide the Union a copy" of the manual so that the Union "can ensure that supervisors implement the drug testing plan properly." Id. Based on the wording of Proposal 2 and the Union's statement of intent, which is consistent with the wording of the proposal, we interpret the proposal as requiring the Agency to provide each unit a copy of such a supervisory manual, if that manual is different from manuals given to employees.
The Agency's only contention concerning Proposal 2 is that the proposal is nonnegotiable because the release of the information sought by the proposal is precluded by section 7114(b)(4)(C) of the Statute. We reject this contention. In negotiability cases involving proposals that require an agency to release information to a union, the "issue is not what information the Union is entitled to by law, but, rather, what it may bargain for." Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 815 (1991) (Patent and Trademark Office). Moreover, as the Authority has consistently held, the entitlement to information under section 7114(b)(4) is a "statutory floor and not a ceiling." Id. See also National Treasury Employees Union and Department of Energy, 22 FLRA 131, 134 (1986) (Department of Energy). Nothing in that section of the Statute prohibits a union from negotiating a right to information over and above the statutory entitlement. Patent and Trademark Office, 39 FLRA at 815; National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 69 (1988); Department of Energy, 22 FLRA at 134.
Based on the foregoing Authority precedent, we find that section 7114(b)(4)(C) does not prohibit the disclosure by an agency to a union of information that constitutes guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. Rather, section 7114(b)(4)(C) constitutes a limit on the information which an agency is required to provide a union under the Statute. We find, therefore, that section 7114(b)(4)(C) does not preclude the negotiation of proposals that would provide for the disclosure of information that constitutes guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. Consequently, to the extent that the Authority's decision as to Provision 1 in National Federation of Federal Employees, Local 1979 and U.S. Forest Service, San Dimas Equipment Development Center, 16 FLRA 369 (1984) is inconsistent with the decision herein, we will no longer follow that decision.
Even assuming, therefore, that Proposal 2 requires the agency to provide the Union with information that constitutes guidance, advice, counsel, and training for supervisors that is related to collective bargaining within the meaning of section 7114(b)(4)(C), we find that the Agency's reliance on section 7114(b)(4)(C) does not provide a basis for finding Proposal 2 nonnegotiable. Further, we find that our decision in NLRB is not applicable to this case. In NLRB, an unfair labor practice proceeding, the issue concerned a union's statutory entitlement to information under 7114(b)(4)(C), while the issue presented by Proposal 2 concerns the Union's right to bargain for the release of information to which it would not otherwise be entitled under section 7114(b)(4)(C).
We have rejected the Agency's contention that Proposal 2 is nonnegotiable because the proposal is inconsistent with section 7114(b)(4)(C) of the Statute. The Agency does not contend, and it is not apparent to us, that the proposal is contrary to any other law or regulation. Accordingly, we conclude that Proposal 2 is negotiable.
IV. Proposal 3
Article 9, section F.
If an employee properly provides a required urine specimen, he/she will not be required to submit a replacement sample unless the PTO [Patent and Trademark Office] once again meets all notice and procedural requirements specified in the agreement, the Plan and the HHS [Health and Human Services] guideline, if the original sample is lost, mishandled, or the test results are in any other way invalidated.
A. Positions of the Parties
The Agency contends that because Proposal 3 places limitations on the Agency's ability to conduct a drug test, the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency argues that although Proposal 3 has been labeled by the Union as a procedural notice proposal, "the plain language of the proposal clearly places substantive restrictions on the [A]gency's ability to require employees to undergo a second drug test." Statement at 9. According to the Agency, Proposal 3 would "preclude the [A]gency from requiring an employee to undergo a second test, if, for any reason, the employee's first drug test [did] not produce a valid test result." Id. at 9-10.
The Agency further asserts that the requirements which the Agency would have to meet under Proposal 3 are not merely the notice requirements under the parties' agreement. According to the Agency, the Agency would have to "again meet all notice and procedural requirements in the Plan[, its Drug Testing Guidelines (Guide), and] the HHS [G]uidelines." Id. at 10. The Agency states that, as the procedural requirements set forth in the Plan and the HHS Guidelines concern more than notice, the proposal "substantively limits the [A]gency's ability to conduct a second test of an employee whose first test does not result in a valid test result." Id. The Agency asserts that the proposal would apply regardless of the degree to which the Agency was responsible for the "error which invalidated the first test result." Id.
According to the Agency, to conduct a test under the reasonable suspicion provisions of the Plan and the Guide, the Agency must meet "thirteen different procedural requirements . . . in order to justify even deciding to conduct the test." Id. at 11 and Guide at 21-24. The Agency asserts that "[t]hese thirteen procedural requirements must be completed prior to, and are in addition to, the extensive procedural requirements the [A]gency must meet during the actual collection process." Id. The Agency contends that only one of these procedural requirements relates to notice. The Agency claims that if a first test did not produce a valid sample, the language in Proposal 3, "'--once again meets all notice and procedural requirements'--would not merely require the [A]gency to give the employee a new notice, but would require the [A]gency to again comply a second time with each of these thirteen procedural steps." Id. The Agency further argues that in administering a reasonable suspicion test the Agency could not comply with the Plan's procedural requirements a second time based on the first reasonable suspicion incident, but would have to wait until the employee was again, as a result of a second incident, suspected of on duty drug use. The Agency also asserts that Proposal 3 would place similar impediments on the Agency's testing of employees under the other provisions of the Plan.
The Agency contends that the Union's statement in its petition that "its intent is not to require the [A]gency to conduct a second random draw (for random testing) or obtain new evidence on which to base a reasonable suspicion test," is "clearly at odds with the plain language of the proposal." Id. at 13. The Agency states that the "only reasonable interpretation of this language is that it requires the [A]gency to do more than merely provide the employee a second testing notice, specifying a new time and place for the test." Id. According to the Agency, the plain wording of Proposal 3 is inconsistent with the Union's statement as to the intent of the proposal.
The Union asserts that Proposal 3 is a drug testing notice requirement that is negotiable under Authority case law. In particular, the Union contends that "[n]otice requirements of the general content of drug testing[,] not requiring that the employees be informed at any particular time[,] have been expressly upheld as negotiable . . . ." Petition at 4. The Union also asserts that "the intent of [Proposal 3] is not to require a second random draw in order to test an employee, nor . . . to require new evidence for reasonable suspicion testing." Id. According to the Union, however, if the Agency's Plan provides employees, for example, with 2 hours' notice of a drug test, then that requirement would have to be met under the Union's proposal.
B. Analysis and Conclusions
We conclude that Proposal 3 does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Proposal 3 requires the Agency to comply with the specified notice and procedural requirements whenever the original sample of an employee who has been subject to a random or a reasonable suspicion drug test must be replaced because that sample has been lost or mishandled or the test results have been invalidated for reasons outside the employee's control. The Union explains that the proposal does not require the Agency to conduct a new random selection or obtain new evidence on which to base a reasonable suspicion test. We note that the proposal as worded does not require the Agency to conduct a new random selection or to develop new evidence warranting a reasonable suspicion test. Rather, by its terms,