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 31 FLRA NO. 15

 31 FLRA 95

16 FEB 1988

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL OF PRISON
LOCALS, LOCAL 1661

                   Union

        and

U.S. DEPARTMENT OF JUSTICE, FEDERAL
BUREAU OF PRISONS, FEDERAL CORRECTIONAL
INSTITUTION, DANBURY, CONNECTICUT

                   Agency

Case No. 0-NG-1331

DECISION AND ORDER ON NEGOTIABILITY ISSUES

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor - Management Relations Statute (the Statute). It concerns
the negotiability of one proposal, Proposal 43, which was severed
by the Authority from the other proposals which were decided in
American Federation of Government Employees, AFL - CIO, Council
of Prison Locals, Local 1661 and U.S. Department of Justice,
Federal Bureau of Prisons, Federal Correctional Institution,
Danbury, Connecticut, 29 FLRA  990 (1987).

     In an Order dated August 6, 1987, the Authority required the
parties to clarify their positions in light of developments such
as the issuance of Executive Order 12564 and other matters
concerning drug testing. The Order required the parties to notify
the Authority as to whether they wished to pursue the issues
raised in the petition for review as to Proposal 43. The Order
further permitted the parties to file supplemental briefs. The
Union elected to pursue the dispute as to Proposal 43 but did not
supplement its position as to that proposal. The Agency did not
withdraw its allegation of nonnegotiability as to the proposal
and filed a supplemental statement of position. 

     Proposal 43 would require the Agency, when it orders an
employee to undergo a drug test, to: (1) inform the employee of
the exact drug or class of drugs for which he or she is being
tested; (2) allow up to 4 hours of administrative leave to permit
the employee to have a specimen collected for processing; and (3)
permit, at the election of the Agency, a supervisor and a
representative of the Union to accompany the employee to the
collection site and verify collection of the specimen. We find
that Proposal 43 is a negotiable procedure within the meaning of
section 7106(b)(2). The proposal does not interfere with
management's right to determine its internal security practices
under section 7106(a)(1).

     II. Background

     In National Federation of Federal Employees, Local 15 and
Department of the Army, U.S. Army Armament, Munitions and
Chemical Command, Rock Island, Illinois, 30  FLRA  No. 115
(1988), we outlined in detail certain events which have direct
relevance to drug testing programs in the Executive Branch of the
Federal Government. We addressed: (1) the issuance of Executive
Order 12564, entitled "Drug - Free Federal Workplace"; (2) the
issuance of Federal Personnel Manual (FPM) 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 (HHS), 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 agency drug testing
programs. 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 Agency's drug testing program is raised
in this case, we will not consider that issue. Rather, for
purposes of decisions on this issue, we will rely on 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.

     We note, finally, that as of the date of this decision, the
Department of Health and Human Services has not published final
regulations in the Federal Register.

     III. Proposal 43

     If an employee is required to submit a specimen for a drug
test, they (sic) will be told exactly what drug(s) or class of
drugs they are being tested for. The employer will allow up to 4
hours of administrative leave to allow the employee to have a
specimen collected for processing. If the employer elects, a
supervisor and a union representative will accompany the employee
to the site for collection of the specimen and verify the
collection.

     A. Positions of the Parties

     The Agency contends that Proposal 43 is nonnegotiable
because it: (1) conflicts with Executive Order 12564 and with
regulations issued by the Department of Health and Human Services
which establish guidelines for agency drug testing programs; (2)
interferes with the Agency's right to determine its internal
security practices under section 7106(a)(1) of the Statute; (3)
interferes with management's right to discipline employees under
section 7106(a)(2)(A) of the Statute; and (4) conflicts with
management's rights to direct employees and assign work under
section 7106(a)(2)(A) and (B) of the Statute.

     The Agency asserts that the first sentence of the proposal
is inconsistent with law and regulation because deterrence--the
purpose of random drug testing--is defeated by a requirement to
inform employees in advance of the exact drug or class of drugs
for which he or she is being tested. According to the Agency, if
it "were required to reveal that it was not going to random test
for one or more . . . types of drugs it would send a message to
employees currently abusing them (and those who might be tempted
to abuse them) that such illegal activity would carry with it no
increased risk of detection." Agency Supplemental Statement of
Position at 4.

     The Agency also argues that the first sentence of the
proposal interferes with its right to discipline employees  under section 7106(a)(2)(A) of the Statute. According to the
Agency, the first sentence has no legitimate purpose and merely
represents a procedural obstacle if an adverse action is taken
against an employee based on drug test results. The proposal
provides an opportunity for the Union to frustrate a disciplinary
action by using the notice requirement as the basis of a claim of
"harmful error." Id. at 7-8.

     The Agency claims that the second and third sentences of the
proposal are contrary to Executive Order 12564 and HHS
regulations and that they interfere with management's right to
determine its internal security practices under section
7106(a)(1). The Agency claims that the second and third sentences
"envision an agency sanctioned private specimen collection
process." Id. at 8. According to the Agency, the Executive Order
and HHS regulations provide only for samples that are collected
at an approved Government collection site by authorized
personnel. Id. at 9. Further, the Agency argues that the proposal
is neither a negotiable procedure under section 7106(b)(2) nor an
appropriate arrangement under section 7106(b)(3) of the
Statute.

     The Union asserts that random drug testing is contrary to
the Fourth Amendment of the United States Constitution. Further,
the Union disputes the Agency's contentions that the proposal
violates management's rights to discipline or remove employees
under section 7106(a)(2)(A). The Union contends that the proposal
is either a negotiable procedure under section 7106(b)(2) or a
negotiable appropriate arrangement under section 7106(b)(3) of
the Statute.

     B. Discussion

     The first sentence of the proposal would require the Agency
to inform the employee of the exact drug or class of drugs for
which he or she is being tested prior to the submission by that
employee of a specimen for drug testing. The Agency does not
demonstrate in what manner this portion of the proposal is
inconsistent with any law, rule, or regulation. The first
sentence requires only that the Agency notify the employee in
advance of the exact nature of the drug test. It does not require
the employer to inform the employee at any particular time.
Nothing in the proposal would prevent, for example, the Agency
from informing an employee that he or she is being tested for a
particular type of drug at the same time that that employee is
ordered to take the test. The Agency's concerns about the effect
of the notice requirement are speculative. Informing employees of
the drugs for which they are being tested does not preclude the
Agency from testing for other drugs at other times, and 
informing them at the time of the test provides them no
opportunity to clear their systems of drugs they might have used
in the immediate past. In short, the proposal does not interfere
with the Agency's purposes for adopting a drug testing plan so as
to conflict with management's rights under section 7106(a)(1),
and, even assuming that the Executive Order and the HHS
guidelines were intended to have a deterrent effect, the first
sentence would not conflict with the achievement of that
purpose.

     Contrary to the Agency's position, moreover, the first
sentence of the proposal would not affect management's right to
discipline employees under section 7106(a)(2)(A). It concerns
management's actions leading up to the imposition of the test,
not the actions which management can take based upon the results
of the test. The Agency's concern about the possible use of the
notice requirement to argue "harmful error" in a subsequent
disciplinary proceeding is unfounded. The Agency's position would
mean that any negotiable procedure under section 7106(b)(2) of
the Statute could potentially be used in that manner and this
conclusion would render section 7106(b)(2) meaningless. The
Agency provides no basis to support a finding that the first
sentence of the proposal directly interferes with management's
right to discipline employees under section 7106(a)(2)(A) of the
Statute.

     The second sentence of Proposal 43 would require the Agency,
when it orders an employee to undergo a urine test, to give the
employee being tested up to 4 hours of administrative leave in
order to have a specimen collected. The Agency interprets this
portion of the proposal as allowing an employee up to 4 hours of
administrative leave to have a specimen taken by the employee's
own doctor or a doctor of the Union's choosing. Id. at 8.
Contrary to the Agency's argument, however, there is nothing in
the wording of this portion of the proposal or in the proposal as
a whole to indicate that the Union intends the grant of
administrative leave to apply if an employee decides to have an
additional specimen taken by either the employee's doctor or a
doctor chosen by the Union. The proposal applies only to the test
specimen which is required by the Agency, not an additional
specimen taken at the option of the employee. Because it concerns
the test required by the Agency, providing administrative leave
does not interfere with management's right to assign work. The
absence from assigned duties is at management's direction.
Moreover, this portion of the proposal does not require that a
specimen be collected at any particular place. Nothing in the
proposal or the record indicates that the Agency is bound to
grant an employee the full 4 hours of leave. The Agency
does not demonstrate that this portion of the proposal is
inconsistent with any law, rule or regulation so as to render it
nonnegotiable under the Statute.

     Finally, the last sentence of the proposal gives the Agency
the option to allow a supervisor and a Union representative to
accompany an employee being tested to the collection site in
order to verify that the specimen was collected. By its plain
wording and consistent with the Union's intent, the proposal does
not require the Agency to allow a supervisor and a Union
representative to accompany the employee. The Agency can choose
to exercise or not exercise the option. Therefore, contrary to
the Agency, this portion of the proposal does not interfere with
the Agency's right to direct employees or assign work under
section 7106(a)(2)(A) and (B) of the Statute.

     Proposal 43 does not place any limitations on the Agency's
ability to conduct the drug testing of its employees. The
proposal simply establishes procedures which the Agency must
follow in exercising its right under section 7106(a)(1) of the
Statute to require that employees submit to drug testing. We
find, therefore, that Proposal 43 constitutes a negotiable
procedure within the meaning of section 7106(b)(2) of the Statute
and is within the Agency's duty to bargain.

     IV. Order

     The Agency must upon request, or as otherwise agreed to by
the parties, bargain on Proposal 43. 1

     Issued, Washington, D.C., February 16, 1988.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

     Footnote 1 In finding that Proposal 43 is within the duty to
bargain, we make no judgment as to its merits.

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