In the Matter of )
Department of the Air Force )
Dobbins Air Force Base )
Dobbins AFB, Georgia )
and ) Case No. 91 FSIP 155
Local 2069, American )
Federation of Government )
Employees, AFL-CIO )
Local 2069, American Federation of Government Employees, AFL-CIO (Union or AFGE) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, (Statute) between it and the Department of the Air Force, Dobbins Air Force Base, Dobbins AFB, Georgia (Employer).
The Panel determined that the parties' dispute concerning Union notice of random drug testing should be resolved through a teleconference with a Panel representative. The parties were advised that if no settlement were reached, the Panel's representative would report to the Panel on the status of the dispute, including the parties' final offers, and make recommendations for resolving the issue. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Accordingly, Chief Legal Advisor Donna M. Di Tullio held a telephone conference with the parties on December 16, 1991, but the parties were unable to reach a settlement. Ms. Di Tullio has reported to the Panel based on the record developed by the parties, and it now has considered the entire record in the case.
The Employer's mission is to fly C-130 cargo planes in support of any worldwide need. There is also a central accounting and finance office on the base which provides pay and services for the U.S. Air Force Reserves nationwide. The Union represents a bargaining unit consisting of approximately 400 nonprofessional General Schedule and Wage Grade employees. The latter are employed primarily as maintenance personnel within the Civil Engineering Squadron; other employees work in aircraft maintenance, supply, transportation management, budget, and contract management. The parties' term agreement is scheduled to expire in February 1992.
This dispute arose during negotiations over the Employer's Drug-Free Workplace Program. The parties were able to reach agreement over all issues except one concerning disclosure to the Union of the names of those who were randomly tested for drug use. The Employer has determined to conduct, on a quarterly basis, random drug tests of the 108 employees in testing-designated
positions within the bargaining unit represented by the Union, as well as all 50 employees represented by the International Association of Fire Fighters. Each quarter, the names of six employees within those two units would be selected at random by computer. The Employer estimates that, on average, two or three of the six would be employees from the AFGE bargaining unit. Thus
far, there has been no implementation of random testing as it concerns the AFGE unit because of the unresolved issue.
ISSUE AT IMPASSE
The parties disagree over whether the names of employees randomly tested for drug use should be disclosed to the Union.
POSITIONS OF THE PARTIES
1. The Union's Position
The Union proposes that within 2 weeks after random drug tests are administered to bargaining-unit employees, the Employer should provide the Union with a list of the names of those tested, omitting the testing results. Should any of those have tested positive for drug use, the Union would waive knowing whether that employee was given a second confirming test.
The Union contends that the timely receipt of this information would act as a safeguard to help it ensure that tests are, in fact, random and that no employee is being harassed through frequent selection for testing. It would facilitate meeting deadlines for filing grievances or unfair labor practice charges where indicated. Employees' privacy interests would remain protected, however, since the Union is not seeking the test results, only the names of those tested. Since the names would be provided after the tests already have been performed, there is no danger that the Union could be accused of warning employees that they are about to be tested. Furthermore, it would be willing to agree to wording that would require it not to reveal the names of employees on the list, unless the information had to be divulged during the course of processing a grievance. There is a demonstrated need for this information. The
Union has become aware that, with respect to the random testing of military reservists on the base, repeated testing of certain individuals makes it appear that based upon the "law of averages" their selection could not be truly random.
2. The Employer's Position
The Employer proposes any one of three alternatives. It would: (1) provide the Union with the names of employees randomly tested 1 year after the testing takes place; (2) provide information to the Union which explains how the computer which selects the names at random for drug testing is programmed, and within 2 weeks after each random testing is conducted, provide the Union with the number of bargaining-unit and nonbargaining-unit employees tested; or (3) resolve the dispute on the basis of the Federal Mediation and Conciliation Service mediator's proposal for settlement, that is, provide employees selected for random drug testing with an extra copy of the written notice of testing which would state that it may be given to their Union representative if they so choose.
With respect to the first alternative, the Employer maintains that the provision would tend to ensure that employees' privacy is safeguarded; some employees may not wish to have their names divulged immediately after a random test. If they should test positive they may choose to enter a rehabilitation program and keep the matter quiet. Moreover, since the information would be provided to the Union well after the random test is conducted, it would be extremely difficult for the Union to discern that the basis of any employee discipline was for failing a drug test. It still would be able to determine whether there is a pattern of harassment in the testing of employees.
As to the second alternative, providing information concerning
how the computer is programmed to select the names for random testing should quell the Union's unsubstantiated fear that the selection is somehow rigged.
Finally, adopting the last alternative would give employees the option of involving the Union since employees, rather than the
parties, would decide whether to waive their privacy interests. The
Union still would be able to take action if an employee were to bring to its attention that there may be a pattern of harassment based upon the frequency of his or her testing.
Having considered the parties' arguments on this issue we find
that it should be resolved on the basis of the mediator's proposal
for settlement. It strikes a balance between preserving employees'
privacy interests and the Union's institutional obligation, as exclusive representative of the bargaining unit, for ensuring that
employees are being treated fairly and equitably. In our view, the
Employer raises a legitimate concern over not compromising the privacy of employees. They have a strong interest in maintaining the confidentiality of information which potentially could reveal
positive drug-testing results. Even if the data sought by the Union
did not include the names of employees, other identifying factors,
such as a statistical analysis of a small number of employees in testing-designated positions, as is involved here, may lead to the
identification of a specific employee disciplined for having tested
positive for drug use.
We conclude that the individual employee should retain. the
option of disclosing to the Union whether he or she has been the
subject of a random drug test. Providing the employees selected with two copies of the notice for testing, allows them \to choose whether to involve the Union in a sensitive matter. Presumably, those who are concerned about potential harassment through random drug testing selection would inform the Union that they have been the subject of such testing, thereby allowing it to decide to intervene as warranted.
Pursuant to the authority vested in it by the Federal Service
Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of the proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the parties to adopt the following wording:
The Employer shall provide bargaining-unit employees selected for random drug testing with two copies of the notice of testing. It shall state that they may provide a copy of the notice to their Union representative if they so choose.
By direction of the Panel.
Linda A. Lafferty
February 6, 1992