30:1083(116)NG - NAGE Local R14-9 and Army, Dugway Proving Ground, Dugway, UT -- 1988 FLRAdec NG

30 FLRA NO. 116
 30 FLRA 1083

27 JAN 1988


NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-9

              Union

         and

U.S. ARMY, DUGWAY PROVING GROUND
DUGWAY, UTAH

              Agency

Case No. O-NG-1268

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(D) and (E) of the Federal
Service Labor - Management Relations Statute (the Statute) and
concerns the negotiability of a proposal which requires the
deletion of all references to random sampling from the Agency's
drug testing regulation. The effect of the proposal is to
preclude drug testing of employees on a random basis. We find
that the proposal is outside the duty to bargain because it
directly interferes with management's right to determine its
internal security practices under section 7106(a)(1) of the
Statute and is not an appropriate arrangement within the meaning
of section 7106(b)(3).

II. Background

     On February 10, 1986, the Department of the Army,
promulgated regulations implementing a Department of Defense
Directive concerning civilian employee drug abuse testing.
Interim Change No. Ill to Army Regulation 600-85, Alcohol and
Drug Abuse Prevention and Control Program (Interim Change to AR
600-85). The proposal in dispute in this case was offered by the
Union in connection with bargaining on the implementation
of the Interim Change, which established a drug abuse testing
program for civilian employees in critical jobs.

     In National Federation of Federal Employees, Local 15 and
Department of the Army, U.S. Armament, Munitions and Chemical
Command, Rock Island Illinois, 30  FLRA  No. 115 (1988), we
discussed the provisions of the Interim Change to AR 600-85 and
outlined in detail subsequent events having direct relevance to
drug -testing programs in the Executive Branch of the Federal
Government in general and to the Army drug testing program in
particular. Specifically, we addressed: (1) the issuance of
Executive Order 12564, entitled "Drug - Free Federal Workplace";
(2) the issuance of Federal Personnel Manual Letter 792-16
(November 28, 1986), implementing section 6(a)(1) of the
Executive Order; (3) the publication of the proposed "Scientific
and Technical Guidelines for Drug Testing Programs," by the
Department of Health and Human Services, pursuant to Section 4(d)
of the Executive Order; and (4) the enactment of section 503 of
the Supplemental Appropriations Act of 1987, Pub. L. No. 100-71,
101 Stat. 391, 468 (July 11, 1987). We noted that the Authority
had invited interested parties to file amicus briefs addressing
the negotiability of proposals relating to various aspects of
agency drug testing programs. See U.S. Army Armament, Munitions
and Chemical Command, slip op. at 2-5.

     We also discussed Federal court litigation involving
challenges to the constitutionality of the Army's drug testing
program. Consistent with the decision of the U.S. Court of
Appeals for the District of Columbia Circuit in NFFE v.
Weinberger, 818 F.2d 935 (D.C. Cir. 1987), we concluded that the
only issues properly before us concerned the negotiability of
union proposals, not the legality of drug testing in the Federal
Government. Consequently, to the extent that the
constitutionality of the Army's drug testing program is raised in
this case, we will not consider that issue. Rather, for purposes
of decisions which include this issue, we will presume the
validity of the Executive Order and agency drug testing programs.
See U.S. Army Armament, Munitions and Chemical Command, slip op.
at 5-7.

III. Proposal

     Delete all sampling of civilian personnel in the proposed
Civilian Drug Abuse Testing Program. 

A. Positions of the Parties

     The Agency contends that the proposal conflicts with its
right to determine its internal security practices under section
7106(a)(1) of the statute. It takes the position that the purpose
of drug testing is to assure fitness for retention in critical
jobs and to identify those employees whose drug abuse could cause
disruption in operations, destruction of property, threats to
safety for themselves or others, or the potential for unwarranted
disclosure of classified information through drug-related
blackmail. It argues that the proposal would limit its right to
test randomly and would directly limit management's right to
determine its internal security practices by preventing it from
maintaining a drug-free workforce in critical positions.

     The Agency also contends that the proposal conflicts with an
agency regulation for which a compelling need exists. It states
that the Interim Change to AR 600-85, paragraph 5-14e(l)(b)
establishes testing "periodically after appointment or selection
on a random basis"; that paragraph 5-14e(1)(c) permits testing
"(w)hen there is probable cause"; and that paragraph 5-14e(1)(d)
permits testing in conjunction with an accident or safety
investigation. The Agency takes the position that the wording of
the proposal and the Union's statement of intent make it clear
that the proposal would not permit testing on a random basis and
would conflict with the Army regulation. The Agency also argues
that the regulation is essential to the functioning of the
Department of the Army in an effective and efficient manner and
that it can perform its mission only where it retains the right
to assure that civilian employees in critical positions are drug
free.

     Finally, the Agency argues that the proposal is not an
appropriate arrangement within the meaning of section 7106(b)(3).
The Agency asserts that the proposal would totally abrogate the
exercise of management's right to determine its internal security
practices. The Agency argues that any benefit the employees may
attain through the Union's proposal is not sufficient to override
the negative effect the proposal would have on management's
ability to maintain the security of its property, personnel, and
operations.

     The Union contends that random drug testing violates the
common law right to privacy and the Fourth Amendment to the
United States Constitution, which protects individuals from
unreasonable searches and seizures. The Union also contends that
requiring the implementation of drug testing with the
understanding that its results can be used to terminate
employees without regard for whether job performance is impaired
violates 5 C.F.R. 752.403 and 752.202, and 5 C.F.R. 2302(b)(10).
The Union maintains that because the drug testing regulation
allows disciplinary action on the basis of a positive drug test
even where job performance is not impaired, the imposition of
discipline on the basis of a drug test alone, as proposed by the
Agency, violates Federal Personnel Manual Supplement 792-2.

     The Union also contends that the Agency has failed to
demonstrate a compelling need for the Interim Change to AR 600-85
by failing to address the issue of why random drug testing is
"essential, as distinguished from helpful or desirable," to the
accomplishment of the Agency's mission. The Union states that the
purpose of drug testing is to assure that employee job
performance is not impaired. It asserts that since drug testing
cannot show impairment, random testing is not essential to the
accomplishment of the Agency's mission. Finally, the Union
contends that its proposal is an appropriate arrangement for
employees adversely affected by the exercise of management's
right to determine internal security practices by limiting the
conditions under which drug testing may be required.

B. Discussion

     By requiring the deletion of all references to random
sampling, the effect of this proposal is to preclude drug testing
of employees on a random basis as provided in the Interim Change
to AR 600-85, Paragraph 5-14e(1)(b). In U.S. Army Armament,
Munitions and Chemical Command, we found that random testing of
employees in critical positions was a part of the agency's plan
to secure or safeguard its physical property against internal and
external risks, to prevent improper or unauthorized disclosure of
information, or to prevent the disruption of the agency's
activities. We concluded that by limiting management to testing
employees only on the basis of probable cause, thereby precluding
random testing, the proposal in that case directly interfered
with management's right to determine its internal security
practices under section 7106(a)(1) of the Statute. We also found,
based on our holding in National Association of Government
Employees, Local R7-23 and Department of the Air Force, Scott Air
Force Base, Illinois, 23 FLRA  753, 758-60 (1986), that because
the proposal reversed the substantive effect of management's
action, it excessively interfered with management's right to
determine its internal security practices so as not to be an
appropriate arrangement within the meaning of section 7106(b)(3).


     Because the proposal in this case has the same effect as
Proposal 1 in U.S. Army Armament, Munitions and Chemical Command,
we conclude that the proposal is outside the duty to bargain for
the reasons set forth in that case. In light of our conclusion,
we do not address the Agency's argument that the proposal
conflicts with an Agency regulation for which there is a
compelling need.

IV. Order

     The Union's petition for review is dismissed.

Issued, Washington, D.C., January 27, 1988.

Jerry L. Calhoun,        Chairman

Jean McKee,                Member


FEDERAL LABOR RELATIONS AUTHORITY