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57 FLRA No. 145
INTERNATIONAL FEDERATION OF
PROFESSIONAL AND TECHNICAL
ENGINEERS, LOCAL 3
U.S. DEPARTMENT OF THE NAVY
NORFOLK NAVAL SHIPYARD DETACHMENT
DECISION AND ORDER ON
A NEGOTIABILITY ISSUE
February 28, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal related to the Agency's drug testing program. The Agency filed a statement of position and the Union filed a response. The Agency also filed a reply to the Union's response. [n1]
For the reasons which follow, we find that the proposal is outside the duty to bargain and dismiss the petition for review.
If an arbitrator decides that an employee has been improperly or unlawfully subjected to reasonable suspicion testing, the employee's test results will be nullified.
III. Meaning of the Proposal
At the post-petition conference, the parties agreed that the proposal means that improperly or unlawfully obtained test results, as determined by an arbitrator, will be nullified and that those test results cannot be used by the Agency as the basis for any type of action against the employee. The parties further agreed that the term "action" is not limited to disciplinary action. This agreed-upon meaning of the proposal was memorialized in the record of the post-petition conference distributed to the parties in accordance with 5 C.F.R. § 2424.23(c). [n2]
In its response, the Union states that the proposal would not permit an arbitrator to review the Agency's revocation or denial of a security clearance based on a drug test result. Union's Response at 11. This construction of the proposal is narrower than the construction of the proposal articulated in the record of the post-petition conference, which provides that the proposal prohibits the Agency from taking any action on the basis of an improperly procured drug test result.
The record of the post-petition conference advises the parties that any objection to the content of record of the post-petition conference may be raised in either the Agency's statement of position, or the Union's response thereto. Record of Post-Petition Conference at 2. Here, the Union raised no objection to the meaning of the proposal, as it was outlined in the record of the post-petition conference. Having failed to do so, the Union can not now argue that the proposal will operate in a manner different than the manner described in the record of the post-petition conference. Permitting a party to change the agreed-upon meaning of a proposal would be inconsistent with the purpose of a post-petition conference, see 63 Fed. Reg. 66,405 (Dec. 2, 1998) (the purpose of a post-petition conference is to ensure that the parties have a common understanding of the meaning of a proposal), as well as the procedures for challenging the content of the record of a post-petition conference articulated in that record. Accordingly, we will consider the negotiability of the proposal in light of the meaning contained [ v57 p700 ] in the uncontested record of the post-petition conference.
IV. Positions of the Parties
A. Agency's Statement of Position
The Agency claims that the proposal would impermissibly preclude the Agency from using the results of a failed drug test to revoke an employee's security clearance. The Agency argues that the Supreme Court, in Dep't of the Navy v. Egan, 484 U.S. 518 (1988) (Egan), found that the Agency has the exclusive right to determine whether to grant or revoke a security clearance because of the Agency's expertise in protecting classified information. According to the Agency, an arbitrator's role, under Egan, in reviewing the revocation or denial of security clearances, is limited to ensuring that minimum due process rights are accorded to the employees. The Agency maintains that arbitrators may not review the merits of the Agency's decision. Therefore, the Agency argues that the proposal would impermissibly permit an arbitrator to substitute his determination for that of the Agency.
The Agency also asserts that the proposal conflicts with various provisions of Section 5 of Executive Order No. 12,564, 51 Fed. Reg. 32,889 (September 15, 1986) and 10 U.S.C. § 986. The Agency further argues that the proposal directly and excessively interferes with management's rights to discipline employees and to determine its internal security practices under § 7106(a) of the Statute.
B. Union's Response
As set forth above, the Union maintains that the proposal does not grant to arbitrators any authority with regard to security clearances which they do not already possess. The Union claims that in Egan, 484 U.S. at 531, the Supreme Court ruled that the Merit Systems Protection Board (MSPB) has the authority to review the procedures used by agencies in revoking security clearances. Given an arbitrator's similar powers to review agency actions, the Union argues that arbitrators may review the procedures used by the Agency in revoking a security clearance.
The Union also argues that the proposal is not contrary to Executive Order No. 12,564. The Union further maintains that the proposal does not excessively interfere with management's rights to determine its internal security practices and to take disciplinary action against its employees.
V. Analysis and Conclusions
In Egan, the Supreme Court examined whether the MSPB has the authority to review the security clearance determinations of an agency in the course of reviewing an adverse action. In finding that the MSPB lacked the authority to conduct such a review, the Court emphasized the "sensitive and inherently discretionary" nature of security clearance determinations. Egan, 484 U.S. at 527. The Court further stated that it "is not reasonably possible for an outside nonexpert body to review the substance of such a judgment." Id. at 529. Lower courts have subsequently applied the rationale of the Court in Egan to find that they too lack the authority to review the merits of a security clearance determination, even in the absence of an adverse action. See Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990) (court refused to review merits of an agency decision to revoke the security clearance of a government contractor based upon Egan). Moreover, the Authority has consistently indicated that proposals which would permit arbitrators to review the merits of security clearance determinations would not be negotiable under Egan. See AFGE, AFL-CIO, Dep't of Education Council of AFGE Locals, 42 FLRA 527, 533-34 (1991), petition granted, enforcement denied on other grounds, 25 F.3d 229 (D.C. Cir. 1992); AFGE, Local 1923, 39 FLRA 1197, 1204-05 (1991).
The proposal would permit an arbitrator to review the merits of a security clearance determination. In this connection, the proposal would permit an arbitrator to nullify the results of a positive drug test if he or she determines the results of that test were unlawfully or improperly obtained. If an arbitrator nullifies those results, those results could not be used by the Agency as the basis for taking any action against the employee. The proposal does not expressly exempt revocations or denials of security clearances from its scope. Moreover, the parties agreed that the proposal prohibits the Agency from taking any action on the basis of an improperly procured drug test result. Consequently, enforcement of the proposal's requirement that test results be nullified would permit arbitral review of security clearance determinations based on such test results.
As outlined above, Egan and its progeny do not permit arbitrators to review the merits of a security clearance determination. Because the proposal would permit an arbitrator to conduct a review beyond what is permitted by Egan, we find that the proposal is outside the duty to bargain.
Having found that the proposal is outside the duty to bargain on the grounds articulated above, we find it unnecessary to address any of the parties' remaining arguments.
The Union's petition for review is dismissed.
Footnote # 1 for 57 FLRA No. 145
The Union submitted a response to the Agency's reply. The Authority's Regulations do not specifically provide for such a response. See 5 C.F.R. § 2424.24-2424.26. Under 5 C.F.R. § 2424.27, the Authority will not consider any submission filed by any party other than those specifically authorized by the Authority's Regulations, absent a written request showing extraordinary circumstances. Here, the Union's submission contains no such request and it does not demonstrate that extraordinary circumstances exist to permit the consideration of the additional submission. Therefore, we have not considered the Union's response to the Agency's reply.
Footnote # 2 for 57 FLRA No. 145
At the post-petition conference, or after it has been completed, the representative of the FLRA will prepare and serve on the parties a written statement that includes whether the parties agree on the meaning of the disputed proposal or provision, the resolution of any disputed factual issues, and any other appropriate matters.