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38 FLRA No. 89

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

DEPARTMENT OF EDUCATION COUNCIL OF AFGE LOCALS

(Union)

and

U.S. DEPARTMENT OF EDUCATION

WASHINGTON, D.C.

(Agency)

0-NG-1595

DECISION AND ORDER ON NEGOTIABILITY ISSUES

December 20, 1990

Before Chairman McKee and Members Talkin and Armendariz.⁽¹⁾

I. Statement of the Case

This case is before the Authority based on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of several proposals concerning the implementation of the Agency's drug testing program.

Proposal 1 requires the Agency to establish and administer a drug testing program in accordance with the United States Constitution, applicable laws, rules and regulations and the parties' agreement. We find that Proposal 1 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

Section A of Proposal 2 precludes the random testing of employees for drug abuse except for employees designated as sensitive under Section B of the proposal. We find that the effect of section A of Proposal 2 is to preclude random drug testing of certain employees who might otherwise be subject to testing as "sensitive" employees within the meaning of Executive Order 12564. We conclude that section A of Proposal 2 is nonnegotiable because it directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. We also conclude that section A of Proposal 2 is not negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

Section B of Proposal 2 establishes the standard that the Agency must use in designating a position as "sensitive" pursuant to Executive Order No. 12564. Section B is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with Executive Order No. 12564.

Proposal 4 dictates the specific information to be provided employees 60 days prior to each drug test by the Agency. We find that Proposal 4 would preclude drug testing by the Agency on a random basis and is nonnegotiable because it directly interferes with management's right to determine its internal security practices. Because Proposal 4 could be revised to be negotiable, we also consider the subsections of the proposal and conclude that subsections D, E, F and G of Proposal 4 would be negotiable. Because subsections A, B, and C would not be susceptible to a negotiability determination, we would dismiss the petition for review as to those subsections. We conclude that subsection H would be nonnegotiable.

We conclude that section A of Proposal 5 is not sufficiently specific and delimited in form and content to permit a determination as to its negotiability.

Section B of Proposal 5 provides that urine samples will be taken in a sanitary area which accords employees privacy. We find that section B of Proposal 5 is consistent with the final Mandatory Guidelines for Federal Workplace Drug Testing, 53 Fed. Reg. 11970-89, and the Executive Order. We also find that we do not need to determine whether section B involves the exercise of management's right to determine its internal security practices under section 7106(a)(1) because we conclude that, even if section B were found to directly interfere with that right, section B would constitute an appropriate arrangement under section 7106(b)(3) of the Statute and is negotiable.

Section C of Proposal 5 is not in dispute. Section D of Proposal 5 requires a test of a second sample of an employee's urine after a positive reading on the original urine sample has been confirmed. We find that the record is not sufficient for us to make a negotiability determination and, therefore, we will dismiss the Union's petition of review as to section D of Proposal 5.

Section A of Proposal 6 requires the Agency to maintain strict procedures concerning the transfer and transport of employees' urine samples to assure that each employee's sample is properly identified throughout the testing process. We find that section A is a negotiable procedure under section 7106(b)(2) of the Statute.

Section B of Proposal 6 provides that the Agency shall release information concerning an employee's drug test to only those Agency officials who have an "absolute need to know." We find that there is insufficient evidence in the record for us to determine whether section B of Proposal 6 is negotiable.

Section C of Proposal 6 prevents the Agency from proposing disciplinary action against an employee until a positive urine test result has been confirmed under the procedure set forth in Proposal 5. We find that section C of Proposal 6 is negotiable.

Section D of Proposal 6 requires the destruction of any employee records concerning unconfirmed test results. We find that section D of Proposal 6 is nonnegotiable under section 7117(a)(1) because it is inconsistent with the final Guidelines.

Section E of Proposal 6 requires the Agency to inform employees of their right to receive copies of all records and related documentation concerning their drug tests. We find that section E is negotiable.

Section A of Proposal 7 provides that employees who have tested positive for drug abuse will be referred for counseling and rehabilitation. Section A also requires the Agency to inform those employees of the consequences of their refusal to participate in counseling or rehabilitation. We find that section A is negotiable.

Section B of Proposal 7 is not in dispute. Section C of Proposal 7 requires the Agency to negotiate concerning its Employee Assistance Program prior to implementation of the Agency's drug testing program. We conclude that section C is negotiable because it merely requires the Agency to negotiate consistent with its obligations under law and regulation.

Proposal 8 prevents the Agency from using consent forms to obtain assurances from employees that they will comply with the Agency's drug testing program. We find that Proposal 8 is nonnegotiable because it directly interferes with management's right under section 7106(a)(1) to determine its internal security practices. We also find that Proposal 8 is not an "appropriate arrangement" because it excessively interferes with management's right.

II. Preliminary Matters

The Agency contends that the Union's petition for review is not properly before the Authority because the Union has failed to submit a statement explaining the intent of the proposals as required by section 2424.4(a)(2) of the Authority's Rules and Regulations. The Agency states that it was unable to make an informed response to the Union's petition for review because the Union did not submit a statement of intent. The Agency acknowledges that the Union corrected the deficiency in the petition for review in its response to the Agency's statement of position. The Agency contends, however, that it has not had an opportunity to adequately respond to the Union's position because the position was stated for the first time in the Union's response. The Agency requests that the petition for review be dismissed or that the Agency be allowed to submit an amended or supplemental statement of position.

We reject the Agency's contention that the Union's petition for review is deficient. The Union has provided a satisfactory statement of meaning concerning the proposals in dispute. The Union stated in its petition for review that "[t]he intent of the proposals [is] to set procedures for the safeguarding of employees' rights." Petition for Review at 1. The Agency's statement of position indicates that the Agency was able to address the negotiability of the proposals. We find that the matters raised by the petition for review are properly before the Authority. The Agency's request that the Union's petition for review be dismissed in its entirety because of procedural defects is denied. See National Treasury Employees Union, NTEU Chapter 202 and Department of the Treasury, Bureau of Government Financial Operations, 22 FLRA 553 (1986). We also deny the Agency's request to file an amended or supplemental statement of position because we find that the record before us is sufficient for the Authority to address the negotiability of the Union's proposals.

The Agency declared Proposal 1; Proposal 5, section B; and Proposal 7, sections A and C nonnegotiable for the first time in its statement of position. The Union has addressed the negotiability of those proposals in its response to the Agency's statement of position. Therefore, we will consider those proposals as properly before the Authority. See National Federation of Federal Employees, Local 642 and Bureau of Land Management, Lakeview District Office, Lakeview, Oregon, 27 FLRA 862 (1987), enforced as to other matters sub nom. Bureau of Land Management, Lakeview District Office, Lakeview, Oregon v. FLRA, 864 F.2d 89 (9th Cir. 1988).

In its statement of position, the Agency also states that it has not declared Proposal 9 and Proposal 10 to be nonnegotiable. Agency's Statement of Position (Agency's Statement) at 7. Proposals 9 and 10 were not included in the Agency's allegation of nonnegotiability. See Attachment No. 1 to Agency's Statement at 8. The Union has not addressed those proposals in its response to the Agency's statement of position. Therefore, we dismiss the Union's appeal as to Proposals 9 and 10. In its response to the Agency's statement of position, the Union withdrew its appeal of section B of Proposal 7.

In its response to the Agency's statement of position, the Union asserted for the first time that its proposals are "appropriate arrangements" for employees adversely affected by the Agency's action. The Authority granted the Agency additional time to file a supplemental statement of position addressing the issue of whether the Union's proposals are "appropriate arrangements," within the meaning of section 7106(b)(3) of the Statute. The Agency did not file a supplemental statement of position.

Finally, during the pendency of this case, the Federal courts issued several decisions concerning agency drug testing programs. On December 14, 1989, the parties in this case, and parties in similar cases, were directed by the Authority to file supplemental briefs addressing the applicability to this case of recent court decisions involving drug testing programs. The Agency filed a supplemental brief. On February 9, 1990, the Union withdrew its petition for review concerning Proposal 3; the first paragraph of Proposal 5; sections C, E, F and G of Proposal 5; and section D of Proposal 7. Therefore, we will not consider the Union's petition for review as to those proposals.

III. Background on the Drug Testing Issue

On January 27, 1988, 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 1046 (Rock Island I) the Authority issued its lead decision and order on the negotiability of drug testing procedures. The disputed proposals in that case related to the agency's testing of selected categories of civilian employees for drug abuse. The agency appealed in the United States Court of Appeals for the District of Columbia Circuit the Authority's determinations concerning the three proposals found negotiable in Rock Island I (Proposals 3, 8 and 9).

On April 11, 1988, while Rock Island I was pending in the D.C. Circuit, the Department of Health and Human Services (HHS) issued the final Mandatory Guidelines for Federal Workplace Drug Testing, 53 Fed. Reg. 11970-89. The court granted the motion of the Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois to remand the case to the Authority to permit the Authority to further consider its decision in light of the final Guidelines. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988) (order). The Authority issued its decision on remand on October 27, 1988. National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 33 FLRA 436 (1988) (Rock Island II), rev'd in part and remanded sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground).

In Rock Island II, the Authority discussed the content of the final Guidelines and their applicability to the collective bargaining of drug testing procedures. The Authority found that the final Guidelines are "Government-wide regulations" within the meaning of section 7117(a) of the Statute. Id. at 438-39. See also Aberdeen Proving Ground, 890 F.2d at 470 n.4. The Authority stated that section 7117(a) of the Statute provides that the duty to bargain does not extend to matters which are inconsistent with a Government-wide regulation. Therefore, because the final Guidelines constitute a Government-wide regulation within the meaning of section 7117(a)(1), they preclude negotiations on proposals that are inconsistent with those Guidelines.

We will examine the proposals in this case to determine whether, under section 7117(a)(1) of the Statute, they are inconsistent with law, the final Guidelines or any other Government-wide rule or regulation. In determining whether the proposals are nonnegotiable because they conflict with the final Guidelines, we do not rule on the validity or the merits of the final Guidelines. See Rock Island II, 33 FLRA at 439, citing American Federation of Government Employees, National Council of Grain Inspection Locals v. FLRA, 794 F.2d 1013 (5th Cir. 1986).

IV. Proposal 1

Section 44.01 General

The employer agrees that the establishment and administration of its drug abuse testing program will be done in strict compliance with the U.S. Constitution and all applicable laws, rules and regulations and this agreement.

A. Positions of the Parties

The Agency contends that Proposal 1 concerns the legality of drug testing, a matter which is beyond the jurisdiction of the Authority. The Agency asserts that the proposal is not merely a statement of general compliance with law because the word "strict" in the proposal "adds to a stat[e]ment of general compliance [and] either adds to or detracts from the negotiability of the proposal." Agency's Statement at 2-3. The Agency states that as the Union does not explain the meaning of the word "strict," "[t]he Agency must, therefore, assume that the Union intends the terms to mean more than mere compliance, perhaps by dispensing with the requirement to show 'harmful error' in some circumstances." Id. at 3.

The Union argues that Proposal 1 is negotiable because it does nothing more than require the Agency to comply with applicable laws, rules, and regulations in the administration of its drug testing program. Union's Response to Agency's Statement of Position (Union's Response) at 7-8. The Union contends, generally, that if any of its proposals are found to directly interfere with management's rights, the proposals should be considered to be "appropriate arrangements" within the meaning of section 7106(b)(3) of the Statute. Id. at 3. We will address the Union's contention in our discussion of Proposal 1 and the other proposals, where appropriate. However, we find it unnecessary to repeat the Union's general contention in the statement of the Union's position concerning each proposal.

B. Analysis

We find that, although Proposal 1 interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, Proposal 1 is a negotiable appropriate arrangement under section 7106(b)(3) because it does not excessively interfere with that right.

The Authority consistently has held that although section 7106(a) reserves to management the right to take the actions enumerated therein, management's rights under section 7106(a) must be exercised in accordance with applicable laws and regulations. See, for example, American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 31 FLRA 37 (1988). The Authority also has held that section 7106(a)(1) does not preclude a union from negotiating proposals that require an agency to comply with any applicable law, rule, or regulation or from enforcing such provisions through the negotiated grievance procedure. General Services Administration and American Federation of Government Employees, AFL-CIO, National Council 236, 27 FLRA 3 (1987) (GSA and AFGE, Council 236).

However, the recent decision of the United States Supreme Court in Department of Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA), leads us to reexamine the Authority's conclusion in GSA and AFGE, National Council 236 that the Statute does not preclude a union from negotiating proposals that require an agency to comply with applicable law, rule, or regulation when the agency exercises its rights under section 7106(a)(1) of the Statute.

In IRS v. FLRA, the Court, interpreting section 7106(a)(2), held that:

The [Statute] does not empower unions to enforce all "external limitations" on management rights, but only limitations contained in "applicable laws." Or to put the point differently, there are no "external limitations" on management rights, insofar as union powers under § 7106(a) are concerned, other than the limitations imposed by "applicable laws."

Id. at 1628-29 (emphasis in original). The Court's conclusion was based on the literal wording of section 7106(a)(2), which provides that "nothing [in the Statute] shall affect the authority of any management official of any agency . . . in accordance with applicable laws" to exercise the management rights enumerated under section 7106(a)(2).

The literal wording of section 7106(a)(1), however, does not contain a requirement that management exercise the rights enumerated in that section "in accordance with applicable laws." Given the wording of section 7106(a)(1), therefore, the logical extension of the Court's conclusion in IRS v. FLRA is that nothing in section 7106(a) of the Statute would require management, in the context of a collective bargaining relationship, to exercise its rights under section 7106(a)(1) in accordance with applicable laws. Further, consistent with the Court's conclusion, section 7106(a) of the Statute does not, standing alone, empower unions to enforce through collective bargaining any "external limitations" on the exercise of management's rights under section 7106(a)(1), including those contained in applicable laws.

An agency's decision to implement a drug testing program is an exercise of the agency's right under section 7106(a)(1) to establish internal security practices. Rock Island I, 30 FLRA at 1054-60. Consequently, we find that by requiring the Agency to exercise its rights to establish and administer a drug testing program in accordance with external legal limitations (that is, the United States Constitution, applicable laws, rules and regulations), Proposal 1 subjects the exercise of the Agency's rights under section 7106(a)(1) to the limits of applicable law and regulation. Because Proposal 1 would impermissibly limit the exercise of management's right to determine its internal security practices under section 7106(a)(1), we find that the proposal directly interferes with that right.

We have found in this case that section 7106(a) does not, by its terms, subject the exercise of management's rights under section 7106(a)(1) to compliance with applicable laws and regulations. However, section 7106(a) provides that management's authority under section 7106(a)(1) is "[s]ubject to" section 7106(b) of the Statute. That is, management's authority to exercise its rights under section 7106(a)(1) of the Statute is itself subject to subsection (b) of section 7106 of the Statute. Overseas Education Association v. FLRA, 876 F.2d 960, 965-66 (D.C. Cir. 1989) ("Section 7106(a) . . . enumerates the prerogatives reserved to management, but the immunity of these rights from the duty to bargain is '[s]ubject' to Section 7106(b)(3)." (Footnotes omitted.)). Thus, by the literal terms of section 7106, a proposal requiring management to exercise its rights under 7106(a) in accordance with "applicable law" may be negotiable if it constitutes a procedure under section 7106(b)(2) or if it constitutes an "appropriate arrangement" section 7106(b)(3).

A proposal that directly interferes with a management right does not constitute a negotiable procedure under section 7106(b)(2). National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 710 (1990) (citing Department of Defense, etc. v. FLRA, 659 F.2d 1140, 1150-52 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982)). Having determined that Proposal 1 directly interferes with management's right to determine its internal security practices, we find that it does not constitute a negotiable procedure under section 7106(b)(2).

However, the Union contends that Proposal 1 constitutes an "appropriate arrangement" under section 7106(b)(3) of the Statute. To determine whether a proposal constitutes an "appropriate arrangement," we must decide whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right, and whether the proposal is "appropriate" because it does not excessively interfere with the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National Guard).

The Union states that the proposal is "intended to alleviate the adverse [e]ffects of the exercise of a management right." Union's Response at 3. We recognize that an agency's exercise of its right to implement a drug testing program could adversely affect employees. An employee subject to drug testing whose urine specimen tests positive will be subject to certain personnel actions, including reassignment, counseling or rehabilitation, or disciplinary action depending on the employee's particular situation. See Section 5 of Executive Order No. 12564. Also, a personnel action based on drug testing results would affect the employee's reputation and future employment. The proposal attempts to mitigate the adverse consequences of the Agency's establishment of its drug testing program by requiring the Agency to adhere to the limits established in the United States Constitution, applicable laws, rules and regulations. Consequently, we find that Proposal 1 is intended as, and constitutes, an "arrangement" for employees adversely affected by the exercise of the Agency's right to determine its internal security practices, that is, its right to establish a drug testing program.

Next, we must determine whether the proposed "arrangement" in Proposal 1 is "appropriate." The proposed arrangement would require that management exercise its right in compliance with the United States Constitution and applicable laws, rules and regulations. Also, the proposal would allow challenges through the grievance and arbitration procedure to Agency actions concerning the establishment and administration of its drug testing program.

We note, at the outset, that the imposition of drug testing is not within an employee's control. While an employee has control over his or her use of illegal drugs, an employee has no control over the testing methods and the procedures to safeguard the urine specimen or to ensure the accuracy of test results. In our view, moreover, employees' interest in maintaining the protections afforded them under the Constitution and applicable laws, rules and regulations outweighs the Agency's interest in insulating its actions from challenges through the negotiated grievance and arbitration procedure. The Agency has not demonstrated that a requirement that it act in a manner consistent with laws, rules and regulations excessively interferes with its right to determine internal security practices under section 7106(a)(1). Indeed, the existence of applicable laws, rules and regulations already serves to limit agency action and indicates that an agency's interest in being able to act without regard to those provisions and without challenge to the legality of its action, such as in arbitration procedures, is negligible.

We find that, on balance, the benefits of the proposed arrangement to employees outweigh the adverse impact on the Agency's right. We conclude, therefore, that Proposal 1 does not excessively interfere with the Agency's right and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

In view of our finding in this case, we will no longer follow GSA and AFGE, National Council 236, 27 FLRA 3 (1987), to the extent that it held that a requirement in a collective bargaining agreement that the agency exercise the rights enumerated in section 7106(a)(1) in accordance with external legal limitations does not interfere with the exercise of management's rights under section 7106(a)(1) and is enforceable in arbitration. However, we note, consistent with our discussion above, that although a provision requiring an agency to exercise its rights under section 7106(a)(1) in accordance with applicable external legal limitations interferes with the agency's rights, it could constitute a negotiable procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the Statute.

V. Proposal 2

Section 44.02 Employees Subject to Testing

A. Except for employees who are designated as "sensitive" in accordance with Section B, no employee will be subject to drug testing, unless (1) there is a reasonable, articulable suspicion to believe that that employee is under the influence of illegal drugs; (2) it is part of an authorized Department investigation of a serious accident or unsafe practice; and (3) [it] is part of a follow-up to counseling or rehabilitation through an Employee Assistance Program.

B. The employer agrees that designations of "sensitive" employees pursuant to E.O. 12564 shall be done in strict accordance with applicable laws, rules, regulations and this agreement. Only employees who occupy positions within agencies at a level of responsibility that could have a direct[,] material, adverse effect on national security, law enforcement, protection of life and property, public health and safety, may be designated as "sensitive."

A. Positions of the Parties

The Agency contends that section A of Proposal 2 is nonnegotiable because it would prohibit random drug testing. The Agency states that a similar proposal was found to be inconsistent with management's right to determine internal security practices under section 7106(a)(1) of the Statute in Rock Island I, 30 FLRA at 1052-58 (Proposal 1).

In its supplemental brief, the Agency states that the United States District Court held in American Federation of Government Employees v. Cavazos, 721 F. Supp. 1361 (D.D.C. 1989) (AFGE v. Cavazos), appeal docketed, No. 89-5395 (D.C. Cir. Sept. 25, 1989), that "the Agency's random testing plan met constitutional requirements." Agency's Supplemental Brief at 3. The Agency also states that "several courts have issued decisions supporting an agency's right to conduct random testing of employees in sensitive positions under appropriate circumstances." Id. The Agency concludes that recent "court decisions concerning on and off duty impairment do not support the Union's position that its proposal [is] negotiable because [it] merely restates basic Constitutional protections." Id. at 4.

The Agency contends that section B of Proposal 2 interferes with management's right to classify positions as sensitive and, thereby, interferes with management's right to determine the numbers, types and grades of positions. The Agency also contends that the classification of a position as sensitive is specifically excluded from the scope of the statutory grievance procedure under section 7121(c) of the Statute and is not subject to arbitral or judicial review. The Agency argues that section B of Proposal 2 is, therefore, nonnegotiable because the proposals would subject the Agency's classification and internal security practice decisions to arbitral review.

The Union states that section A of Proposal 2 is "much to the same effect as Proposal 1 in [Rock Island I]." Union's Response at 9. The Union states that it is aware that the Authority found Proposal 1 in that case to be nonnegotiable because it directly interfered with management's right to determine its internal security practices. Relying on several decisions of the Federal district courts, the Union requests that the Authority reconsider its previous decisions concerning the negotiability of proposals limiting or proscribing agency programs for random drug testing.

The Union contends that section B of Proposal 2, concerning the designation of sensitive positions, is negotiable because it seeks only to have the Agency comply with Executive Order No. 12564. The Union states that the second sentence of section B "refers only to the requirements of E.O. 12564 and merely repeats the criteria of the Order for designating sensitive positions." Union's Response at 11.

B. Analysis

Section B of Proposal 2 is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with Executive Order No. 12564. We conclude that section A of Proposal 2 is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. We consider section B before section A because the disposition of section A is dependent upon the disposition of section B.

1. Section B of Proposal 2

Section 3(a) of Executive Order No. 12564 requires the head of each Executive agency to "establish a program to test for the use of illegal drugs by employees in sensitive positions." Section 7(d) of the Executive Order provides that "employee in a sensitive position" refers to: (1) an employee in a position designated by the agency head as having a sensitivity level of 2-4 under Chapter 731 of the Federal Personnel Manual (FPM) or in a position which the agency head designates as sensitive under Executive Order No. 10450; (2) an employee who is granted access to classified information or who may be granted such access under Section 4 of Executive Order No. 12356, 50 U.S.C. § 401 note; (3) Presidential appointees; (4) law enforcement officers as defined in 5 U.S.C. § 8331(20); and (5) other positions that the agency head determines involve law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence.

The Union states that the first sentence of section B "seeks to have the [A]gency comply with E.O. 12564 in the designation of 'sensitive' positions." Union's Response at 11. We find that the wording of the first sentence of section B is consistent with the Union's statement of intent and that the effect of the first sentence of section B is to require the Agency to comply with applicable laws, rules and regulations when it designates employees in sensitive positions under the Executive Order. As we stated in our discussion of Proposal 1, above, a proposal which merely requires an agency to comply with applicable law and regulation could constitute a negotiable procedure under section 7106(b)(2) of the Statute or an "appropriate arrangement" under section 7106(b)(3) of the Statute.

However, the second sentence of section B creates an exception to the first sentence by providing that only those employees who occupy positions within the Agency at a level of responsibility that could have a direct, material, adverse effect on national security, law enforcement, protection of life and property, or public health and safety may be designated as "sensitive." The terms of the second sentence of section B modify the terms of section 7(d)(5) of the Executive Order by making designation of sensitive positions under section B more restrictive than under section 7(d)(5) of the Executive Order.

The Union asserts that "[t]he second sentence refers only to the requirements of E.O. 12564 and merely repeats the criteria of the Order[.]" Union's Response at 11. We disagree. Section 7(d)(5) requires the agency head to designate as "sensitive" all employees in positions that the agency head determines involve law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence. Under the proposal, the agency head may designate as "sensitive" only employees in positions "at a level of responsibility that could have a direct[,] material, adverse effect" on national security, law enforcement, protection of life and property, or public health and safety. These are all areas specified in section 7(d)(5). The second sentence of section B, however, would not permit an agency head to designate as "sensitive" those employees in positions that involve functions requiring a high degree of trust and confidence within the meaning of section 7(d)(5).

By limiting in this manner the agency head's ability to designate sensitive positions under section 7(d)(5), the second sentence of section B establishes a class of positions which may be designated as "sensitive" positions that is more limited than the class established under section 7(d) of the Executive Order. By creating a more restricted class of positions which can be designated as "sensitive," the second sentence of section B prevents the Agency from designating as "sensitive" positions which it would otherwise be able to designate under section 7(d)(5) of the Executive Order. Therefore, by restricting the discretion of the Agency head under the Executive Order to designate positions as "sensitive," the second sentence of section B is inconsistent with section 7(d)(5) of the Executive Order.

By precluding the Agency from designating employees in sensitive positions consistent with section 7(d)(5) of the Executive Order, the proposal would exclude from the Agency's drug testing program employees who may be tested under that program in accordance with section 3(a) of the Executive Order. We find, therefore, that section B of Proposal 2 is inconsistent with Executive Order No. 12564 because it prevents the Agency from designating and, therefore, from testing employees in sensitive positions consistent with the Executive Order. Because section B of Proposal 2 is inconsistent with Executive Order No. 12564, we conclude that it is nonnegotiable under section 7117(a)(1) of the Statute.

We need not address the Union's contention that the proposal is an "appropriate arrangement" under section 7106(b)(3) of the Statute because we have found that the proposal is inconsistent with Executive Order No. 12564, which is accorded the force and effect of law. See American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1068 (1988), rev'd as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989) (order). Section 7106(b)(3) does not make negotiable a matter which is inconsistent with law other than the Statute. Id.

2. Section A of Proposal 2

Section A of Proposal 2 would preclude random testing of all employees except those designated as "sensitive" in accordance with section B of Proposal 2. We concluded, above, that section B defines the employees or positions that can be designated as "sensitive" more narrowly than does the Executive Order. Because section A restricts random testing to that more narrowly defined group, the effect of section A is to preclude random testing of some employees who may be defined as "sensitive" under the Executive Order.

By thus precluding management from testing on a random basis some employees who may be designated as sensitive, the effect of section A of Proposal 2 is similar to that of Proposal 1 in Rock Island I. Although different in scope, both proposals would preclude random testing of employees designated as "sensitive." Consequently, consistent with Rock Island I, we find that section A of Proposal 2, by precluding management from random testing of some employees in sensitive positions under the Executive Order, directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. In reaching this conclusion, we take no position concerning the extent of the Agency's right to randomly test employees not designated as "sensitive" under the Executive Order.

Additionally, by precluding management from random testing of some employees who may be designated as sensitive, section A might be viewed as a benefit to those employees. However, that benefit is obtained at the cost of protecting the security of the Agency's property, personnel, and operations from the effects of possible illegal drug use by employees in those positions. Because the employees may be designated by the Agency as "sensitive," the burden imposed on the Agency by its inability to test those employees is an increased risk to the Agency's security which outweighs the benefit to employees. Consequently, for the reasons set forth in Rock Island I, we conclude that Section A is not an "appropriate arrangement" under section 7106(b)(3) of the Statute because it excessively interferes with management's right to determine its internal security practices. See Rock Island I, 30 FLRA at 1057-58.

VI. Proposal 4

Section 44.04 Notification to Employees

In the event drug testing is required, 60 days before the implementation of the program and prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:

A. The reasons for ordering the drug testing;

B. How the employee was selected for the test;

C. The frequency or intervals [at] which they will be tested;

D. The consequences of a positive result or refusal to cooperate, including adverse action;

E. That there will be an opportunity for them to submit supplemental medical documentation to support the legitimate use of a specific drug;

F. That there will be drug abuse counseling and referral services available through the Employee Assistance Program to which he/she can voluntarily submit to prior to testing without reprisal;

G. The right to union representation on any facet concerning the matter, including but not limited to any meetings, or preparation for meetings, before, during or after the test is conducted;

H. The right to have a drug test at each step of the testing by an independent lab utilizing the same sample or a new sample.

A. Positions of the Parties

The Agency interprets Proposal 4 as requiring that the Agency provide "specific notice (presumably 60 days, however, the Union has provided no explanation of the specific notice requirement) to employees prior to each test." Agency's Statement at 3. The Agency argues that the proposal is nonnegotiable because it effectively eliminates the ability of management to conduct random testing. The Agency asserts that as all of the subparts of Proposal 4 are tied to a specific notice requirement they are nonnegotiable, "even though standing alone, certain of the proposals may otherwise be negotiable." Id. at 4. The Agency also contends that section H of Proposal 4 is inconsistent with the Agency's right to determine its internal security practices and is inconsistent with the final Guidelines.

The Union states that aside from the Union's "attack on the randomness of the testing, this proposal would not otherwise interfere with the [A]gency's alleged interest in internal security. . . . That is, in circumstances where the [A]gency does not intend a test for drugs to be random or surprise, the above procedures fall . . . within the duty to bargain." Union's Response at 13. The Union maintains that the "procedures" in Proposal 4 are similar to drug testing procedures in other cases which the Authority has found to be negotiable.

B. Analysis

Under Proposal 4, employees who are to be tested will be informed at some point prior to each test as to specified aspects of the test and the testing procedure. Proposals that provide for advance notice of a random drug test interfere with management's right under section 7106(a)(1) to conduct random testing because such proposals open up a period of time prior to the test in which employees may take actions to avoid the consequences of the test. See American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 37 FLRA No. 117 (1990) (Proposals 1-9) (Member Talkin concurring) (Minerals Management Service) (proposals requiring 24-hour advance notice of a drug test). A period of advance notice increases the risk that employees who are so disposed will be able to frustrate the purposes of the test. In short, advance notice is incompatible with the right to conduct random drug tests. Id. See also American Federation of Government Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA No. 116 (1990) (Sierra Army Depot) (Member Talkin dissenting).

As worded, Proposal 4 could be interpreted as requiring the Agency to provide the specified information to employees 60 days in advance of the date on which they will be tested for illegal drugs.⁽²⁾ We note, in this connection, that the Agency interprets the proposal as requiring the Agency to notify employees 60 days in advance of a test and the Union does not dispute that interpretation. A proposal that required notice to employees 60 days prior to a drug test would be nonnegotiable because it would directly interfere with management's right to determine its internal security practices under section 7106(a)(1). See Minerals Management Service, slip op. at 5-7. To the extent that Proposal 4 is interpreted in this manner, we find that Proposal 4, as a whole, would be nonnegotiable because the 60-day notice requirement would apply to each of its subsections.

However, Proposal 4 could also be interpreted as requiring that the Agency provide the specified information to employees, but as permitting the Agency to provide that information at any time prior to a drug test. Under this interpretation, to the extent that Proposal 4 preserves management's discretion to give the specified information to employees at the time that it directs them to report to the testing site to undergo a drug test, or at any other time management determines, pursuant to its right under section 7106(a)(1), it is distinguishable from Sierra Army Depot, which required management to give employees 2 hours' notice before they were to report for a drug test.

By requiring management to provide the specified drug testing information to employees prior to the test, Proposal 4 would have the effect of putting employees on notice that they were to be tested. However, because management would have the discretion under the proposal to provide that information to employees at the time that it directed them to report for the test, the point at which employees are on notice that they are subject to a drug test would be the same as the point at which they are directed to report for the test. Consequently, the increased risk of evasive action by employees that would result from the requirement in Sierra Army Depot of 2 hours' advance notice to employees before they must report for the test would not exist. Therefore, to the extent Proposal 4 would allow management to provide the specified drug testing information to employees at the time those employees are directed to report for a drug test, the proposal would not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute by conducting random drug testing.

In reaching this conclusion, we take no position on the amount of time for notice prior to directing an employee to report for a drug test that would be sufficient to render a proposal nonnegotiable. See Sierra Army Depot. We hold only that, to the extent that Proposal 4 would allow management to provide employees the specified drug testing information at the time that management directs the employee to report for a drug test, it would be negotiable.

Each of the interpretations set forth above is equally likely. We note that the Union did not dispute the Agency's claim that the proposal "presumably" required that employees would be given notice 60 days prior to the test. Consequently, we have provided alternative dispositions of Proposal 4 to address each of the possible interpretations.

Additionally, because the proposal could be redrafted in a manner that would render the proposal negotiable, in the interest of facilitating the resolution of the parties' dispute, we will also consider the negotiability of the specific subsections of the proposal. We find that subsections D, E, F and G would be negotiable. Subsection D requires management to inform employees of the consequences of a positive drug test result or of a refusal to cooperate in the drug testing program, including the possibility of an adverse action. Proposals which require management to inform employees that they are subject to discipline because they have been found to use illegal drugs are negotiable. See American Federation of Government Employees, Local 1603 and U.S. Department of the Navy, Naval Air Station, Patuxent River, Maryland, 36 FLRA 162, 165-67 (1990) (Naval Air Station) (proposal informing employees that enrolling in an employee assistance program would not immunize them from subsequent disciplinary action held not to violate management's right to discipline or Sections 5(b) or (c) of Executive Order 12564). Consequently, consistent with Naval Air Station, we find that subsection D would be negotiable.

Subsection E requires that management inform employees that they will have an opportunity to "submit supplemental medical documentation" to demonstrate that they legitimately use a specific drug. Proposals that permit employees to submit additional medical documentation in support of a claim that a positive drug test result is explainable by use of a prescription drug are negotiable. See National Federation of Federal Employees, Local 178 and U.S. Army Aberdeen Proving Ground Installation Support Activity, 31 FLRA 226, 233-35 (1988) (Aberdeen Proving Ground Installation Support Activity), remanded sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground, Installation Support Activity v. FLRA, No. 88-1310 (D.C. Cir. July 18, 1988) (order), decision on remand, 33 FLRA 521 (1988), affirmed sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground, Installation Support Activity v. FLRA, 890 F.2d 467, 477 (D.C. Cir. 1989). See also Sections 4(b), 5(f), and 7(c) of Executive Order 12564. Consequently, consistent with Aberdeen Proving Ground Installation Support Activity, we find that subsection E would be negotiable.

Subsection F requires management to inform employees that "drug abuse counseling and referral services" will be available "through the Employee Assistance Program" and that employees can voluntarily participate in that program prior to testing without reprisal. Proposals that provide for counseling and rehabilitation services to be made available to employees who are found to use illegal drugs are negotiable. See National Treasury Employees Union and U.S. Customs Service, 31 FLRA 118, 126 (1988) (U.S. Customs Service). See also Sections 3(b), 5(a) and (b) of Executive Order 12564; Federal Personnel Manual Letter 792-19, Section 3.b, 54 Fed. Reg. 14024, 14026 (April 6, 1988). Consequently, consistent with U.S. Customs Service, we find that subsection F would be negotiable.

Subsection G requires management to inform employees that they have a right to union representation at any point in the drug testing process, whether "before, during, or after the test is conducted[.]" Nothing in section 7114(a)(2) of the Statute prevents unions from negotiating contractual rights to union representation which exceed the rights to union representation set forth in that section. See American Federation of Government Employees, AFL-CIO, Local 3354 and U.S. Department of Agriculture, Farmers Home Administration, Finance Office, St. Louis, Missouri, 34 FLRA 919, 924 (1990) (Farmers Home Administration, Finance Office) (provision requiring union representation during discussion of "opportunity to improve performance" letter held to be negotiable). See also 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, 31 FLRA 95, 100 (1988).

The Agency claims that some of the subsections of Proposal 4 are nonnegotiable but it does not raise any specific objection to subsection G and we are not aware of any grounds on which to conclude that subsection G is nonnegotiable. Compare Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 358 (1986) (right to union assistance at any time, as long as such assistance did not interfere with performance of work, held to be negotiable); Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 331-32 (1987) (right to refuse to attend meeting if denied union representation held nonnegotiable); National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797, 820-21 (1987) (right to union representation at meetings with management concerning classification desk audit held to be negotiable to the extent that it required union representation at desk audits and nonnegotiable to the extent that it required the performance of work by the supervisor). Consequently, consistent with Farmers Home Administration, Finance Office, we find that subsection G would be negotiable.

Because of the lack of evidence and argument, we are unable to determine the negotiability of subsections A, B, and C of Proposal 4. As to subsection A, we are unable to determine the meaning of this portion of the proposal. The subsection may only mean that the Agency is required to state the basis on which drug testing for that employee was ordered. In that sense, the subsection is similar to the procedural requirement that employees be given notice as to the grounds on which they will be disciplined. Interpreted in this manner, the proposal would be a negotiable procedure under section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 635 (1990).

The subsection may also be interpreted, however, as requiring the Agency to justify the decision to order the employee to be tested. In this sense, the proposal would establish a substantive precondition to the imposition of the test that would be incompatible with management's right to conduct random testing. See Rock Island I, 30 FLRA at 1052-58 (testing only on the basis of probable cause held to be nonnegotiable). The Union provides no evidence or argumentation that would enable us to determine which of these differing interpretations represents the intent of the subsection. Consequently, we would dismiss the petition for review as to subsection A because the Union has not created a record on which we could assess the negotiability of the subsection.

Subsection B requires management to inform employees as to how they were selected for the test. The subsection is subject to differing interpretations and the Union has provided no explanation of its meaning. The subsection may mean that the Agency is simply required to inform employees that they have been selected for testing under the random testing program or that their selection is based on a reasonable suspicion that they use illegal drugs.

On the other hand, subsection B could be interpreted, for example, to require the Agency to provide details of the operation of its random selection program and to explain to the employee how that program resulted in his or her selection or to divulge the sources of information which led management to suspect that the employee used illegal drugs. While the former interpretation may render the subsection negotiable, the latter interpretation would mean that the proposal would be found nonnegotiable. See National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground Installation Support Activity, 31 FLRA 241, 255 (1988). Consequently, we would dismiss the petition for review as to subsection B because the Union has not created a record on which we could assess the negotiability of the subsection. Id.

Subsection C requires management to inform employees of the frequency with or intervals at which they will be tested. The subsection could be interpreted simply to require the Agency to notify employees, at the time that they are directed to report for a random drug test, that they may be subject to further random testing in the future. The subsection could also be interpreted as requiring the Agency to inform employees that they will be subject to further random testing at specified intervals, for example, every 2 months. Because we are unable to determine the Union's intent, we are unable to assess the negotiability of subsection C. Consequently, we will dismiss the petition for review as to the subsection.

Finally, we conclude that subsection H is nonnegotiable. Subsection H requires management to afford employees the right, at each step of the drug testing process, to have a second test performed by an independent laboratory using the same sample or a new sample. The Union does not explain its intent as to this subsection. Taken literally, the subsection would allow employees, "at each step of the testing," to have a second test performed by an "independent lab" on "the same sample or a new sample." At a minimum, the subsection would appear to permit an employee, at the time of the initial test and at the time of the confirmatory test--the two major steps of the testing process under the final Guidelines--to submit "the same sample or a new sample" to an independent laboratory for testing, presumably to repeat the initial test and the confirmatory test on those samples.

Interpreted in this manner, we conclude that subsection H would be inconsistent with the final Guidelines. Taken literally, in order for the independent laboratory to perform a repeat of the initial test on "the same sample," the subsection would require the certified laboratory to which the sample had been sent by the Agency to transfer the sample to the independent laboratory. Such a procedure would break the chain of custody at the certified laboratory, contrary to the provisions of the final Guidelines requiring that laboratory "to maintain control and accountability of specimens from receipt through completion of testing of results, during storage, and continuing until final disposition of specimens." Section 2.4(a)(2) of the final Guidelines. 53 Fed. Reg. 11982 (April 11, 1988). In short, in order to ensure the validity of the tests, both initial and confirmatory, the final Guidelines require the certified laboratory to maintain strict control of the sample throughout the process. Sending the sample to another laboratory is inconsistent with that requirement for strict control. Consequently, we conclude that subsection H would be nonnegotiable under section 7117(a)(1) of the Statute because it would be inconsistent with a Government-wide regulation. We take no position on that portion of the proposal pertaining to a "new sample."

VII. Proposal 5

Section 44.05 Methods and Procedures for Testing

. . . .

The employer agrees that the following procedure will be utilized to assure drug testing is reliable:

A. Upon direction of management under terms of Section 3 above, affected employees will report to the designated location to be tested.

B. Tests will be given in a sanitary, secluded area, which provides the employee with privacy.

. . . .

D. If the 2nd test confirms results of the 1st test, the employee will be notified to return to the designated site the next work day for a second test.

A. Positions of the Parties

The Agency states that section A links the requirements of Proposal 5 to "Section 3 above." The Agency contends that "it is unclear to the Agency to which section this refers[.]" Agency's Statement at 4. The Agency contends that section B of Proposal 5 conflicts with Executive Order No. 12564 because it would prohibit the presence of an observer even when management had reason to believe that the sample may have been tampered with. The Agency also argues that section B interferes with management's right to determine its internal security practices.

According to the Agency, section D requires additional tests on samples different from the sample used for the initial test. The Agency contends that, to the extent that the proposal compels testing beyond what is specified in the Executive Order and the HHS regulations, it is contrary to law and Government-wide regulation.

The Union acknowledges that in Rock Island I, the Authority ruled "identical language to be nonnegotiable." Union's Response at 14. However, the Union argues "that the terms of the first subsection . . . are flexible enough to allow for management to exercise its rights without undue interference." Id. at 14-15. The Union contends, therefore, that Proposal 5 is consistent with Executive Order No. 12564.

The Union argues that the "scientifically proven shortcomings of urine testing procedures bolsters the argument that procedures surrounding drug testing should be negotiable at least as appropriate arrangements." Union's Response at 17-18. As to the proposed procedure in section B, the Union states that the reference to "privacy" is intended to have the "normal dictionary meaning." Union's Response at 19. The Union states that the requirement for privacy "may include some intrusion as the result of a reasonable suspicion by management that an employee may attempt to invalidate or falsify the urine specimen." Id. The Union argues that the privacy provision is consistent with law, rule and regulation.

With respect to the requirement in section D of additional testing on different samples, the Union asserts that the testing can be in addition to any confirmatory testing of the original sample. The Union argues that nothing in the proposal prevents the Agency from testing samples in accordance with the Executive Order.

B. Analysis

1. Section A Is Not Sufficiently Specific and Delimited

Section A of Proposal 5 provides that employees will report to the designated location for drug testing when management directs them "under the terms of Section 3 above." It is not clear from the record whether "Section 3 above" refers to Proposal 3, which was withdrawn by the Union, or to a provision which is not before the Authority in this negotiability appeal. Without an explanation from the Union concerning the terms of section 3, we are unable to determine the effect of section A of Proposal 5 or whether section A is consistent with applicable law and regulation. Thus, section A of Proposal 5 is not sufficiently specific and delimited in form and content to permit a determination as to its negotiability. A petition for review which does not present a proposal sufficiently specific and delimited to enable the Authority to make a negotiability determination does not meet the conditions for review set forth in 5 U.S.C. § 7117(c) and 5 C.F.R. § 2421.1. National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Houston, Texas, 32 FLRA 1265 (1988).

2. Section B

Section B of Proposal 5 provides that urine samples will be taken in a sanitary area which accords employees privacy. The Union states that "'privacy' . . . is intended to have its normal dictionary meaning. However, this may include some intrusion as the result of a reasonable suspicion by management that an employee may attempt to invalidate or falsify the urine specimen." Union's Response at 19. The Union asserts that "the 'privacy provision' of this proposal is consistent with law, rule and regulation." Id. We find that section B of Proposal 5 is consistent with the final Mandatory Guidelines for Federal Workplace Drug Testing, 53 Fed. Reg. 11970-89, and the Executive Order. We also find that we do not need to determine whether section B involves the exercise of management's right to determine its internal security practices under section 7106(a)(1) because we conclude that, even if section B were found to directly interfere with that right, section B would constitute an appropriate arrangement under section 7106(b)(3) of the Statute and is negotiable.

Section 4(c) of the Executive Order provides that "[p]rocedures for providing urine specimens must allow individual privacy, unless the agency has reason to believe that a particular individual may alter or substitute the specimen provided." Thus, the Executive Order mandates that agencies allow employees individual privacy when providing urine samples. An agency may limit an employee's privacy only if the agency has reason to believe that the employee will attempt to alter or substitute his or her sample.

By providing that employees be allowed privacy when providing a urine sample, section B of Proposal 5 does not in any way prevent the Agency from exercising its right to limit an employee's privacy if the Agency believes that the employee will alter or substitute a urine sample. The wording of section B does not establish any specific standard which the Agency must use in determining whether it is appropriate to assign an observer to monitor the collection of a urine sample. The Union states that the requirement for privacy "may include some intrusion as the result of a reasonable suspicion by management that an employee may attempt to invalidate or falsify the urine specimen." Union's Response at 19.

The Union also states that the proposal is intended to be implemented consistent with law, rule, and regulation. We note that section B of Proposal 5 is similar to section 2.2(f)(7) of the final Guidelines, which provides that "[t]he individual may provide his/her specimen in the privacy of a stall or otherwise partitioned area that allows for individual privacy." In providing for personal privacy, therefore, section B affords employees nothing more or less than is provided by the final Guidelines.

The Union's statements as to the intent of section B are not inconsistent with the wording of section B. Consequently, we will adopt the Union's interpretation of section B. In sum, based on the Union's statement of intent, we interpret section B as providing that employees will be allowed to provide a urine sample in privacy--that is, without an observer present--unless the Agency has a reasonable suspicion that an employee may attempt to invalidate or falsify the urine specimen.

Further, we reject the Agency's contention that section B of Proposal 5 would prohibit the presence of an observer and thus conflicts with the Executive Order and management's rights. As noted above, section B of Proposal 5 does not in any way prevent the Agency from exercising its right to limit an employee's privacy if it has a reason to believe that the employee will alter the sample.

The Agency also contends that the legal standard in section B is different from the standard in the Executive Order. The Agency argues that section B would prohibit the presence of an observer when management had "reason to believe" that the sample may have been tampered with and concludes that because section B would preclude an observer, section B is contrary to the Executive Order and interferes with management's right to determine its internal security practices.

In Rock Island I, 30 FLRA at 1079-81, the Authority held that a proposal which restricted the agency's ability to assign an observer to monitor the collection of a urine sample was nonnegotiable because it was inconsistent with Executive Order No. 12564. Proposal 12 in Rock Island I restricted management's decision to assign an observer to monitor the collection of a urine sample to those circumstances where it has "probable cause" to believe that an employee will alter the test sample.

The Authority stated that the probable cause standard is a generally recognized legal standard. Considering the standard within the context of the proposal, the Authority found that the proposal would have the effect of permitting the agency to assign an observer to monitor the taking of a urine sample "only where the weight of the available evidence supports the conclusion that the employee is tampering with or is about to tamper with the sample." Rock Island I, 30 FLRA at 1081. The Authority interpreted the standard in section 4(c) of the Executive Order--providing that employees would give urine samples in private except where management has "reason to believe" that a particular employee will alter or substitute for the sample--to permit an observer where there is "any reason at all which gives rise to and supports a belief that the employee may alter the sample." Id. at 1081. The Authority found that the probable cause standard was more restrictive than the standard in Executive Order No. 12564, and, therefore, the proposal was inconsistent with the Executive Order and nonnegotiable under section 7117(a)(1) of the Statute.

After the issuance of Rock Island I, HHS issued the final Guidelines which set forth "indicia of 'reason to believe'" within the meaning of section 4(c) of the Executive Order. Section 2.2(f)(14) of the final Guidelines, 53 Fed. Reg. at 11973. See also FPM Letter 792-19, Section 4.g(2) (Office of Personnel Management (OPM) guidance implementing section 4(c) of the Executive Order). The final Guidelines and FPM Letter 792-19 clarify the "reason to believe" standard in the Executive Order. Therefore, we will interpret the "reason to believe" standard in the Executive Order, consistent with the final Guidelines and FPM Letter 792-19, which were issued after the Authority's decision in Rock Island I. Consequently, we no longer will follow the Authority's interpretation of the "reason to believe" standard in section 4(c) of the Executive Order, as set forth in Rock Island I, which permitted an agency to assign an observer if it has "any reason at all" which gives rise to and supports a belief that an employee may alter a urine sample.

We turn, then, to consideration of the meaning of the phrase "reason to believe." The final Guidelines, consistent with section 4(c) of the Executive Order, provide that an agency's drug testing program "shall allow individual privacy unless there is reason to believe that a particular individual may alter or substitute the specimen to be provided." Section 2.2(e) of the final Guidelines, 53 Fed. Reg. at 11980; FPM Letter 792-19, Section 4.g. "[I]ndicia of 'reason to believe' are set out in [section] 2.2(f) [of the final Guidelines]." 53 Fed. Reg. at 11973. They include, but are not limited to, unusual temperature of the specimen, unusual color of the specimen, and the unusual behavior of a particular individual. See also FPM Letter 792-19, Section 4.g(2).

The procedures in the final Guidelines also require that: (1) an agency first record in a permanent record book the evidence which leads to a reason to believe that an individual may alter the specimen (section 2.2(f)(14)); (2) all specimens suspected of being adulterated be tested (section 2.2(f)(15)); and (3) whenever there is reason to believe that a particular individual may alter or substitute the specimen to be provided, the agency must obtain a second sample as soon as possible under direct observation (section 2.2(f)(16)). "The Final Guidelines also add a requirement that any 'reason to believe' observation be concurred in by a higher level supervisor of the collection site person." 53 Fed. Reg. at 11973 (referring to section 2.2(f)(23) of the final Guidelines). At a minimum, therefore, these provisions, taken together, require the presence of specific and particularized facts which would give an agency "reason to believe that a particular individual may alter or substitute the specimen to be provided." Section 2.2(f)(16) of the final Guidelines.

We now consider whether the "reasonable suspicion" standard in section B is consistent with the "reason to believe" standard as discussed above. In its Government-wide guidance to agencies on the implementation of the terms of the Executive Order, OPM defines "reasonable suspicion" to test an employee for illegal drugs as "an articulable belief that an employee uses illegal drugs drawn from specific and particularized facts and reasonable inferences from those facts." Section 3.c. of FPM Letter 792-19 (Dec. 27, 1989). We read section B as imposing a "reasonable suspicion" for observation standard which contains elements similar to the "reasonable suspicion" for testing standard in the OPM guidance. That is, the effect of section B is to require that the Agency be able to provide reasons to support its suspicion that an employee may alter or substitute a urine sample, which reasons are based upon specific facts and reasonable inferences from those facts before the Agency assigns an observer to monitor the collection of the sample.

Construed in this manner, the "reasonable suspicion" standard in section B is consistent with the "reason to believe" provisions of the Executive Order and with the final Guidelines and the OPM guidance implementing section 4(c) of the Executive Order. The "reason to believe" standard in the final Guidelines requires that there be evidence or "indicia" which supports the Agency's "reason to believe" that a particular individual may alter or substitute the test sample before it orders direct observation of an employee providing a urine sample. The evidence must be such that would cause the higher level supervisor of the collection site person to concur in the "reason to believe" observation.

Interpreted consistent with the Union's statement of meaning, section B contains the same requirements as the final Guidelines: employees must be allowed privacy during the drug testing process except in those instances where the Agency has a "reasonable suspicion" (articulable reasons for its suspicion drawn from specific facts and reasonable inferences from those facts) that the employee may alter or substitute the sample. As so construed, section B contains the same requirement as the requirement in the final Guidelines and FPM Letter 792-19 that the Agency's decision to assign an observer to monitor an employee providing a urine sample be based on a reasonable belief, which is supported by particular and objective facts, that the employee may alter or substitute the sample. Therefore, we conclude that subsection B is consistent with the standard set forth in Government-wide regulations and the Executive Order.

We note that FPM Letter 792-19, discussed above, was issued after the parties filed their positions concerning section B in this case. FPM Letter 792-19 was issued pursuant to Executive Order No. 12564, which directed OPM to "issue government-wide guidance to agencies on the implementation of the terms of the Order." Section 1.e of FPM Letter 792-19. We have interpreted "reasonable suspicion" consistent with the OPM definition in FPM Letter 792-19. The Union has not defined "reasonable suspicion" in any contrary manner, and nothing in the record before us suggests an interpretation of "reasonable suspicion" that is inconsistent with applicable law, rule and regulation.

Finally, we note that in our disposition of Proposal 1 above, we held that proposals which bind management to compliance with the requirements of law and regulation in the exercise of section 7106(a)(1) rights directly interfere with those rights. We do not need to reach the question of whether the decision to assign an observer to monitor an employee urine sample, as provided in Section B, involves the exercise of management's right to determine its internal security practices under section 7106(a)(1) because the proposal is negotiable in any event. If the decision to assign an observer to monitor an employee urine sample does not constitute the exercise of management's right under section 7106(a)(1), section B is negotiable because it would not directly interfere with the exercise of a management right and, as we found above, section B is consistent with the requirements of the Executive Order and the final Guidelines.

On the other hand, if the decision to assign an observer constitutes the exercise of management's right under section 7106(a)(1), the limitation imposed on the exercise of that right by the incorporation of the Executive Order standard in section B would, consistent with our holding as to Proposal 1, directly interfere with that right. However, section B would nevertheless be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Again, consistent with our holding as to Proposal 1, the benefit to employees of the protection afforded their privacy by the application of the Executive Order standard outweighs any burden on management's right to act, under section 7106(a)(1), without regard to the requirements of the Executive Order. See, supra, slip op. at 11.

3. Section D

Section D provides that if an initial positive result is confirmed, the employee will be notified to return to the testing site for a second test. The Union states that section D requires a test of a second sample of an employee's urine after a positive reading on the original urine sample has been confirmed. The Union states that the additional testing on different samples required under section D can be in addition to any confirmatory testing on the original sample. We find that the record is not sufficient for us to make a negotiability determination on section D of Proposal 5. Therefore, we will dismiss the Union's petition for review as to section D of Proposal 5.

The Authority found in Rock Island II that a proposal which required additional testing on an existing urine sample or a new sample was not inconsistent with the final Guidelines. That proposal did not attempt to substitute the test results on the second sample for the results on the agency's "official sample," but constituted supplementary evidence to be presented to an employee's supervisor. The Authority found that "the final Guidelines do not preclude an employee from presenting supplementary evidence to a supervisor in an attempt to refute the result of an official [a]gency drug test conducted under the final Guidelines." Rock Island II, 33 FLRA at 452.

In Department of the Army, Aberdeen Proving Ground, the court rejected the Authority's conclusion that a similar proposal was negotiable. The court stated that:

While enabling the employee to provide supplementary evidence, such as new or split samples, to facilitate the supervisor's personnel decision might well be consistent with the Guidelines, [the Authority's] clearly expressed understanding that the proposal would allow the employee to refute the [Medical Review Officer's] medical determination forces us to conclude that the proposal does not pass muster.

890 F.2d at 472. The court found that the final Guidelines provide the employee with an opportunity to persuade the Medical Review Officer (MRO) that the test result was incorrect or justifiable and that the MRO alone is qualified to evaluate the employee's claim. The court stated that "[a] proposal giving the supervisor that authority would undercut the Guidelines' command that agencies appoint a medical officer to make final medical decisions." Id. at 473. See also National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 35 FLRA 936 (1990); National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground, Installation Support Activity, 35 FLRA 926 (1990).

Section D provides for additional testing on samples different from the Agency's original sample. Under section D, an employee must be notified to report the next workday for another drug test if the test result on the first sample is confirmed as positive. To implement the requirement in section D, the Agency must be: (1) notified by the laboratory conducting the tests on employees' urine samples of confirmed positive test results; and (2) provided information that identifies the employees whose urine test results are confirmed positive. The Agency would then instruct the employees to report for a second test. The proposal does not specify whether the test results should be submitted directly to Agency officials or whether the results should be submitted to the MRO who would then report to Agency officials or order the second test.

Also, the Union has provided no information concerning the purpose of the second test and how it intends the results from the second test to be used. Thus, it is not clear whether the second test is intended to enable the employee to provide supplementary evidence to facilitate the supervisor's personnel decision, allow the employee to refute the MRO's medical determination, or is intended to have some other effect. Without an explanation from the Union concerning the intended effect of section D of Proposal 5, or how section D operates consistent with the duties of the MRO, as prescribed in the final Guidelines, section D is subject to interpretations that would render it inconsistent with the provisions in the final Guidelines governing reporting and verifying positive test results.

For example, section 2.4(g) of the final Guidelines establishes the procedures for reporting test results. That section provides, among other things, that: (1) the laboratory shall report test results to the MRO; (2) the results (positive and negative) for all specimens submitted at the same time to the laboratory shall be reported back to the MRO at the same time; (3) the MRO shall report to the agency only whether the test was positive or negative; and (4) the laboratory shall provide to the agency a monthly statistical summary of drug testing results and shall not include in the summary any personal identifying information.

If section D is interpreted to require the laboratory to notify Agency officials directly of a confirmed positive test result, it is inconsistent with section 2.4(g)(1) of the final Guidelines which provides that the laboratory shall report test results to the MRO. Further, if section D is interpreted to require that the Agency be provided information identifying the employees who have confirmed positive test results, it is inconsistent with section 2.4(g)(6) which provides that the laboratory report to the agency shall be "a monthly statistical summary of urinalysis testing [results which] shall not include in the summary any personal identifying information." A report to an Agency official other than the MRO which includes information that identifies all employees with a confirmed positive test result is not consistent with the reporting requirements set forth in section 2.4.(g) of the final Guidelines.

Further, if the procedure in section D requires that the laboratory report "confirmed" positive test results to the MRO, consistent with section 2.4(g), after which the Agency will be notified of the confirmed positive results and the employee will be instructed to report for the second test, it is inconsistent with section 2.7(a) of the final Guidelines. Section 2.7(a) of the final Guidelines provides that a confirmed positive test result from a laboratory does not automatically identify an employee as an illegal drug user. The confirmed positive test result must be reviewed and verified as positive by a qualified Medical Review Officer. "[R]eview shall be performed by the Medical Review Officer prior to the transmission of results to agency administrative officials." Section 2.7(a) of the final Guidelines, 53 Fed. Reg. at 11985.

Section D could be interpreted as requiring that Agency officials be notified of "confirmed" positive test results at the same time that the MRO receives the confirmed positive results. We interpret "confirmed" positive test results to be an initial positive test result that has been confirmed by a laboratory using the appropriate verification procedures, but which has not been reviewed and verified by the MRO. Because section D does not specifically provide for the verification procedure set forth in the final Guidelines, it can be interpreted to require the transmission of "confirmed" positive test results to Agency officials before verification by the MRO has been completed. Interpreted in this manner, section D is inconsistent with section 2.7(a) which provides that test results be verified "prior to the transmission of results to agency administrative officials."

In promulgating the final Guidelines, HHS considered requests that agency officials be notified of positive test results at the same time that the MRO is notified so the agency could take appropriate action where employees with positive test results pose a hazard to other individuals or the public. However, HHS "determined that it would be inappropriate to report a result before the Medical Review Officer has the opportunity to review the facts and circumstances and make a decision on the meaning of the test results." 53 Fed. Reg. at 11974. HHS stated that "[c]ircumventing the review system would abridge necessary protections for employees and could result in prejudging an individual employee's case." Id. (citation omitted).

Moreover, if the proposal were interpreted to require the MRO to order the retesting based on a confirmed positive result before the tests are verified and transmitted to Agency officials, it is inconsistent with the provisions in the final Guidelines. The final Guidelines contemplate that the MRO shall take no action based on a positive test result until the MRO has reviewed and verified those results. "An essential part of the drug testing program is the final review of results. . . . This review shall be performed by the [MRO] prior to the transmission of results to agency administrative officials." Section 2.7(a) of the final Guidelines.

As indicated above, section D is subject to interpretations that would render it nonnegotiable as inconsistent with the final Guidelines. We cannot determine from the record whether one of the interpretations of section D cited above, or some other interpretation, is intended by the Union. Therefore, we conclude that the record is insufficient for us to determine the negotiability of section D and dismiss the Union's petition for review as to section D of Proposal 5.

VIII. Proposal 6

Section 44.06 Confidentiality and Safeguarding of Information

A. All samples will be subject to a strict chain of custody.

B. Employees will be guaranteed confidentiality in all matters relating to drug testing. Information will be released only to those officials of the employer that have an absolute need to know.

C. A drug test which has not been confirmed as positive, pursuant to the procedure stated above, will not be used to propose any disciplinary action against employees.

D. The Department shall destroy any employee records concerning non-confirmed test results.

E. Regardless of the test results the employee will be informed in writing of his/her right to receive copies of all records and related documentation concerned with the drug abuse test.

A. Positions of the Parties

The Agency asserts that it cannot determine from the Union's statement of intent whether Proposal 6 is consistent with Executive Order No. 12564. The Agency states that the Union: (1) failed to define the term "strict chain of custody" in section A; and (2) does not indicate what it means by the term "absolute need to know" in section B. The Agency argues that sections A and B are contrary to law. The Agency contends that section C is nonnegotiable because it conflicts with the Executive Order and it violates management's right to discipline because it conditions the exercise of that right on compliance with nonnegotiable criteria.

The Agency argues that section D is nonnegotiable under section 7117 of the Statute because it requires the destruction of Government records, contrary to the final Guidelines. The Agency contends that the Union has failed to provide a statement of intent concerning section E which is sufficient for the Agency to determine whether section E is consistent with law, rule and regulation. The Agency argues that, in any event, the proposal fails to recognize the statutory and regulatory limitations on the Agency's ability to disclose information.

The Union contends that the wording in section A which the Agency claims has not been explained "is manifestly self explanatory. It means that the custody of the specimen shall be in secure hands . . . and that strict measures shall be taken to prevent mix ups, contamination, or any other event that would interfere with the accuracy of the test results." Union's Response at 21. Regarding section C, the Union states that the proposal prevents the Agency from using unconfirmed test results as a basis for disciplining employees. The Union asserts that, at most, section C requires the Agency to confirm test results before initiating disciplinary action.

The Union contends that section D of the proposal, requiring the destruction of records relating to unconfirmed test results, refers only to those test results which would never or cannot be confirmed. The Union asserts that section D is not intended to preclude the confirmation of drug tests. Rather, the Union maintains, section D is intended to protect employees who are subjected to faulty testing. The Union argues that if invalid test results are left in employees' records they would pose a risk to employees which far outweighs any interference with management's rights.

The Union asserts that it is clear from the wording of section E that it concerns notifying employees of their right to receive copies of all records and related documentation concerning the drug test. The Union also states that the proposal is intended to provide employees with a right to that information. The Union contends that the Agency has not identified any provision of the final Guidelines with which Proposal 6 conflicts. The Union argues that the Agency's mere assertion is not enough to support a finding of nonnegotiability.

B. Analysis

1. Section A

Section A of Proposal 6 requires the Agency to maintain strict procedures concerning the transfer and transport of employees' urine samples to assure that each employee's sample is properly identified throughout the testing process. We find that section A is negotiable.

Section 2.2 of the final Guidelines contains the standards to which agencies must adhere in establishing procedures governing the handling and transportation of urine specimens from one authorized individual to another. That section implements section 503(a)(1)(A)(ii)(I) of Title V of Public Law 100-71, 101 Stat. 391, 468 (July 11, 1987), 5 U.S.C. § 7301 note, which mandates that the Secretary of Health and Human Services set standards which "require . . . strict procedures governing the chain of custody of specimens collected for drug testing[.]" Section A incorporates the requirement in law and regulation that the Agency develop rigorous "chain of custody" procedures.

The Agency contends that it cannot determine from the Union's statement of intent whether section A is consistent with Executive Order No. 12564. However, the Agency has failed to identify any provision of section A which is inconsistent with the Executive Order. Section 1.2 of the final Guidelines implementing the Executive Order defines "chain of custody" as "[p]rocedures to account for the integrity of each urine specimen by tracking its handling and storage from point of specimen collection to final disposition of the specimen." 53 Fed. Reg. at 11979. The wording of the proposal and the Union's statement of intent do not indicate that the phrase "chain of custody" should be interpreted in a manner that is inconsistent with the Guidelines. Therefore, we interpret the phrase "chain of custody" in section A to be consistent with the definition of "chain of custody" in section 1.2 of the final Guidelines. The Agency has not offered any reason for its contention that section A is inconsistent with the Executive Order. We find that the Agency has failed to establish that section A is inconsistent with the Executive Order or the final Guidelines that implement the Executive Order.

Because it is not otherwise apparent from the record and because the Agency has not established that section A is inconsistent with any other law, regulation or management's rights under the Statute, we find that there is no basis for finding section A nonnegotiable. See Nuclear Regulatory Commission, 31 FLRA at 591-92. We conclude that section A is negotiable.

2. Section B

Section B provides that the Agency shall release information concerning an employee's drug test to only those Agency officials who have an "absolute need to know." The Agency argues that section B is contrary to law because the Union does not explain what it means by the term "absolute need to know." We conclude that there is insufficient evidence in the record for us to determine whether section B is negotiable.

In Rock Island I, the Authority dismissed a union's petition for review concerning a proposal which was similar to section B of Proposal 6. Proposal 10 in that case provided that information concerning results of drug tests would be released to "only those officials of the employer that have an absolute need to know." Rock Island I, 30 FLRA at 1073. The union did not define what it meant by confining disclosure of testing results to those management officials who have an "absolute need to know." The Authority noted that section 503 of Pub. L. No. 100-71 (5 U.S.C. § 7301 note) controls the disclosure of information concerning employee drug tests under Government drug testing programs.

The Authority found that there was insufficient evidence in the record for it to determine whether the proposal would confine disclosure of employee test results only to those officials and only to those circumstances which are permitted by law. The Authority held that because the union did not provide the information necessary for the Authority to determine whether or not Proposal 10 was inconsistent with Pub. L. No. 100-71, the union had not sustained its burden of creating a record which was sufficient for the Authority to make a negotiability determination. Therefore, the Authority dismissed the union's petition for review concerning that proposal. See Rock Island I, 30 FLRA at 1076-78.

In this case, the Union also does not explain what it means by confining disclosure of testing results to those management officials who have an "absolute need to know." Therefore, the record in this case concerning section B of Proposal 6 contains the same defect as the record in Rock Island I concerning Proposal 10. There is insufficient evidence in the record for us to determine whether the proposal would confine disclosure of employee test results only to those officials and only to those circumstances which are permitted by Pub. L. No. 100-71.

The Union has not sustained its burden of creating a record which is sufficient for the Authority to make a negotiability determination. Therefore, we must dismiss the Union's petition for review concerning subsection B of Proposal 6. See Rock Island I, 30 FLRA at 1077. See also Overseas Education Association, Inc. v. FLRA, 827 F.2d 814, 821 (D.C. Cir. 1987); American Federation of Government Employees, AFL-CIO, Local 3760 and Department of Health and Human Services, Social Security Administration, 33 FLRA 498 (1988). "We urge the Union, should it attempt to renegotiate this proposal, to define the proposal more precisely, to explain more fully and with greater clarity the intended effect of the proposal, and to draft the proposal in a manner which will be consistent with applicable law." Rock Island I, 30 FLRA at 1077-78.

3. Section C

Section C prevents the Agency from proposing any disciplinary action against an employee until a "positive" urine test result has been confirmed "pursuant to the procedure stated above." It is clear from the Union's explanation that the procedure referred to in section C of Proposal 6 is the procedure established under Proposal 5 in the Union's petition for review. That proposal established, among other things, a procedure for confirming an initial positive test result. The sections of Proposal 5 referred to in section C were withdrawn by the Union while this case was pending before the Authority. Although section C refers to the withdrawn sections of Proposal 5, it is clear from the record and the wording of Proposal 6 that section C is intended to prevent the Agency from proposing disciplinary action against an employee until an initial "positive" test result has been confirmed.

The Union's withdrawal of the referenced sections of Proposal 5 has not changed the substantive effect of section C. Therefore, in the interest of the effective and efficient utilization of the Authority's processes, we will rule on the negotiability of section C of Proposal 6 despite the references to the withdrawn sections of Proposal 5. We note, however, that our discussion of section C, below, is based on a reading of that section which omits the reference to the withdrawn section of Proposal 5. We find that section C is negotiable.

Contrary to the Agency's assertion, section C does not condition the exercise of management's right to discipline on compliance with nonnegotiable criteria. Rather, by preventing the Agency from proposing discipline against an employee based on an unconfirmed "positive" test result, subsection C simply requires the Agency to exercise its rights in accordance with law. See American Federation of Government Employees, AFL-CIO, Local 1759 and Department of the Army, Headquarters, Fort McPherson, Georgia, 31 FLRA 21 (1988) (Proposal 2).

Section C of Proposal 6 has the same effect as Proposal 2 in Department of the Army, Headquarters, Fort McPherson, Georgia. The disputed portion of that proposal precluded management from taking any action which would result in a reduction in pay, benefits, or career opportunities (demotion) based on a positive result from "unfinalized" drug testing. The Authority determined from the record that "unfinalized" testing meant an initial screening test. The Authority found that Section 5(e) of Executive Order No. 12564 precludes agencies from "taking any action against an employee involving an administrative proceeding . . . based solely on unconfirmed initial positive test results." Id. at 26. The Authority also found that the actions covered by the union's proposal are covered by Section 5(e) of the Executive Order.

The Authority held that by precluding management from taking the specified disciplinary actions against employees based on the results of initial screening tests, Proposal 2 would require nothing different from that which is required by Section 5(e) of the Executive Order. The Authority concluded that Proposal 2 did not directly interfere with management's rights under section 7106(a)(2)(A), but that it simply required that management exercise its rights in accordance with law. Id.

We find that section C of Proposal 6 also precludes the Agency from proposing disciplinary actions against employees based on the results of unconfirmed initial positive test results, and would require nothing different from that which is required by Section 5(e) of the Executive Order.

Additionally, section C of Proposal 6 does not prevent the Agency from removing an employee from his or her work area or reassigning an employee consistent with the provisions of the Executive Order. The Union states that subsection C:

would not prevent the [A]gency from taking prudent precautionary actions where the suspicion of drug abuse would create a situation where an employee might have to be removed from his or her work area and reassigned . . . .

. . . [T]he proposal would merely delay the initiation of action for the time required to confirm positive test results.

Union's Response at 23.

We conclude that section C is negotiable because it merely requires that management exercise its rights in accordance with law and, consequently, does not interfere with management's rights under section 7106(a)(2)(A).

4. Section D

Section D requires the destruction of any employee records concerning unconfirmed test results. We find that section D is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with FPM Supplement 293-31 and the final Guidelines.

The Union contends that the Agency has not demonstrated that section D conflicts with any specific provision of the final Guidelines. The Union states that section D "is intended to protect the reputation of employees who are subjected to faulty testing, whether by the unreliability of the test itself, or the unreliability of the handling of the results." Union's Response at 23. The Union asserts that if invalid unconfirmed test results remain in an employee's records "after being discarded as evidence or otherwise not used, the risk to innocent employees far outweighs any exercise of a management right." Id.

Federal Personnel Manual Supplement 293-31, subchapter S6-2(b) describes "drug testing records" as:

[T]hose records created when an employee is tested for use of illegal drugs under an agency plan implementing Executive Order 12564. Such records would likely include results of tests, indications that an employee has/has not reported for testing, copies of notices to the employee of proposed action when a confirmed positive test result is made, and related documents.

Records which are created when an employee undergoes a drug test under an agency program implementing Executive Order No. 12564: (1) are subject to the Privacy Act; (2) are generally part of the Employee Medical File System; and (3) will be maintained and retained by employing agencies and the government or private sector contractor laboratory doing the testing. FPM Supplement 293-31, subchapter S6-2(b) and subchapter S6-7(a). The Authority has determined that FPM Supplement 293-31 is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. National Treasury Employees Union and U.S. Customs Service, 31 FLRA 118 (1988) (Proposal 3, third sentence) (U.S. Customs Service). Because section D requires the Agency to destroy all unconfirmed test results, it is inconsistent with the requirement in the FPM that the Agency retain, in the Employee Medical File System, records concerning the results of laboratory drug testing.

Further, under the final Guidelines, an unconfirmed positive test result must be reported as a negative test result. Section 2.4(g)(2) of the final Guidelines provides that "[t]he [drug testing] laboratory shall report as negative all specimens which are negative on the initial test or negative on the confirmatory test. Only specimens confirmed positive shall be reported positive for a specific drug." (Emphasis in original.) "The results (positive and negative) for all specimens submitted at the same time to the laboratory shall be reported back to the Medical Review Officer at the same time." Section 2.4(g)(1) of the final Guidelines. The Medical Review Officer must report to the agency only whether employees' test results are "positive" or "negative" and "may not disclose quantitation of test results." Section 2.4(g)(3) of the final Guidelines. The final Guidelines also provide that the laboratory shall provide to the agency a "statistical summary of urinalysis testing of Federal employees [which] shall not include in the summary any personal identifying information. Initial and confirmation data shall be included from test results." Section 2.4(g)(6) of the final Guidelines.

Additionally, Section 2.8 of the final Guidelines provides that "[t]he agency shall establish a Privacy Act System of Records or modify an existing system, or use any applicable Government-wide system of records to cover both the agency's and the laboratory's records of employee urinalysis results." Section 2.8 also provides that the agencies' contracts with the drug testing laboratory and the Privacy Act system of records "shall specifically require that employee records be maintained and used with the highest regard for employee privacy."

Each of the provisions of the final Guidelines cited above contemplates the preservation and maintenance of records concerning "positive" and "negative" results of urinalysis testing. Under the final Guidelines, unconfirmed initial test results must be characterized and reported as "negative" test results. By requiring that the Agency destroy all records concerning unconfirmed test results, section D requires the destruction of test data concerning "negative" test results. Destruction of those records would prevent the Agency from complying with the reporting requirements in Section 2.4(g) of the final Guidelines concerning "negative" test results. Section D also is inconsistent with the requirement in Section 2.8 of the final Guidelines that the Agency establish a system of records "to cover both the agency's and the laboratory's records of employee urinalysis results."

We find that section D is inconsistent with FPM Supplement 293-31 and the requirements in the final Guidelines concerning the reporting of test results and the maintenance of employee records on urinalysis testing. Because both of those regulations are Government-wide regulations, we conclude that section D is nonnegotiable under section 7117(a)(1) of the Statute. Further, we need not address the Union's contention that section D is negotiable as an "appropriate arrangement" under section 7106(b)(3) of the Statute. Section 7106(b)(3) does not make negotiable a matter that is inconsistent with Government-wide regulations. American Federation of Government Employees, AFL-CIO, Local 3232 and Department of Health and Human Services, Social Security Administration, Region II, 31 FLRA 355, 359 (1988).

We note that in U.S. Customs Service, the Authority incorrectly described the Employee Medical Folder as "part of an employee's Official Personnel Folder (OPF)." Id. at 128. The Employee Medical Folder (EMF) "means a separate file folder . . . which contains all medical records designated for long-term retention, which accompanies the employee during his/her Federal career, and which is stored along with the Official Personnel Folder/Merged Personnel Record Folder (hereinafter referred to as OPF)[.]" FPM Supplement 293-31, subchapter S6-2(g) (emphasis added). The EMF and the OPF are not parts of the same personnel folder. Rather, the EMF and OPF are separately maintained folders which contain employee medical records and records concerning personnel actions effected during an employee's service, respectively. See FPM Supplement 293-31, subchapter S6. (Employee Medical File System) and FPM Supplement 293-31, subchapter S4. (The Official Personnel Folder and Merged Records Personnel Folder File).

5. Section E

Section E requires the Agency to inform employees of their right to receive copies of all records and related documentation concerning their drug tests. Section E is negotiable.

Section 503(d) of Title V of Public Law No. 100-71 (5 U.S.C. § 7301 note) provides:

Any Federal employee who is the subject of a drug test under any program or plan shall, upon written request, have access to--

(1) any records relating to such employee's drug test; and

(2) any records relating to the results of any relevant certification, review, or revocation-of-certification proceedings, as referred to in subsection (a)(1)(A)(ii)(III).

Section 2.9 of the final Guidelines provides:

In accordance with section 503 of Pub. L. 100-71, any Federal employee who is the subject of a drug test shall, upon written request, have access to any records relating to his or her drug test and any records relating to the results of any relevant certification, review, or revocation-of-certification proceedings.

53 Fed. Reg. 11986 (Apr. 11, 1988).

Thus, Public Law No. 100-71 and the final Guidelines require agencies to provide employees with access to information concerning their drug tests and relevant information relating to certification of the drug testing laboratory. In addition, Section 2.8 of the final Guidelines provides that both the agency's and the laboratory's records concerning employee urinalysis test results must be maintained in a system of records established pursuant to the requirements of the Privacy Act, 5 U.S.C. § 552a. The Government-wide regulations governing the maintenance, protection, disclosure, and amendment of records within the systems of records as defined by the Privacy Act define "access" to the system of records to include "providing a copy of a record to . . . the data subject." 5 C.F.R. § 297.102.

Section E would merely require the Agency to inform employees of their rights under law and regulation to receive copies of all records and related documentation concerning their drug tests. By requiring the Agency to inform employees of their right to have copies of documents related to their drug tests and to the extent it entitles employees to those copies, section E merely reflects the legal protections provided in Public Law 100-71 and the final Guidelines. Because section E is consistent with law and the final Guidelines, we conclude that section E is negotiable. See Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 31 FLRA at 98 (Proposal 43, first sentence).

IX. Proposal 7

Section 44.07 Counseling and Rehabilitation

A. Employees whose tests have been confirmed positive in accordance with Section 5 will be referred in writing to an Employee Assistance Program Counselor for counseling and/or rehabilitation. Employees will be informed of the consequences should they refuse counseling or rehabilitation.

. . . .

C. Prior to implementation of the drug testing program, the parties will meet and negotiate a strong, effective Employees Assistance Program providing for education, treatment and rehabilitation.

A. Positions of the Parties

The Agency contends that section A is nonnegotiable because it incorporates by reference other nonnegotiable proposals. That is, section A refers to employees who have tested positive for drugs under the procedures established in Proposal 5 (pertinent sections of Proposal 5 were withdrawn by the Union). The Agency argues that section C is overly broad because it seeks to bargain over the substance of the employee assistance program instead of procedures and appropriate arrangements. The Agency asserts that the substance of the program is controlled by statute and Government-wide regulations and is beyond the scope of bargaining.

The Union contends that section A of Proposal 7 creates an opportunity for employees to take advantage of the counseling and rehabilitative assistance provided by the employer. The Union states that the clause is also intended to inform employees of the consequences of their failure to take advantage of the counseling and rehabilitation. The Union contends that section C provides for negotiation between the parties concerning the Agency's employee assistance program. The Union asserts that section C "creates no more entitlement with respect to the scope of bargaining than already exists in the Statute." Union's Response at 26.

B. Analysis

1. Section A

In our discussion of section C of Proposal 6, we noted that while this case was pending before the Authority the Union withdrew sections of Proposal 5 which established procedures for confirming an initial positive test result. Section C of Proposal 6 referenced those sections of Proposal 5. However, we were able to determine from the record the Union's clear intent regarding section C. Because that intent or the effect of the proposal was not substantively changed by the Union's withdrawal, we stated that in the interest of the effective and efficient utilization of the Authority's processes, we would rule on the negotiability of section C of Proposal 6 despite the references to the withdrawn sections of Proposal 5. Because we are able to determine the meaning and intent of section A of Proposal 7 and because the effect of the proposal is not substantively changed by the Union's withdrawal, we will consider section A of Proposal 7 despite the reference to the withdrawn sections of Proposal 5.

Section A provides that employees who have tested positive for drug abuse will be referred for counseling and rehabilitation. Section A also requires the Agency to inform those employees of the consequences of their refusal to participate in counseling or rehabilitation. We find that section A is negotiable.

The Authority has found that "Office of Personnel Management (OPM) regulations and other directives governing drug abuse testing programs require that agencies provide counseling and referral services to employees." Department of the Army, Headquarters, Fort McPherson, Georgia, 31 FLRA at 28, citing FPM chapter 792 and FPM Supplement 792-2; Executive Order No. 12564, Sections 2(b)(2) and (4), 4(a), 5(a) and (c), 6(a)(3), and 7(f). See also 5 C.F.R. Part 792, subpart A. and Section 5.c. of FPM Letter 792-19, "Establishing a Drug-Free Federal Workplace" (Dec. 27, 1989).

The Agency does not assert and it is not otherwise apparent from the record that section A interferes with management's rights. Moreover, the Agency has not demonstrated that section A is inconsistent with law, the final Guidelines, or other applicable regulations. Therefore, we find that section A requires the Agency to provide counseling and referral services for employees suffering from drug abuse in accordance with the requirements of law and Government-wide regulations. Consequently, we conclude that section A is negotiable.

2. Section C

The Agency contends that section C is overly broad and is an attempt to negotiate the substance of the employee assistance program. However, the Agency does not contend that section C interferes with any management right. The Union states that section C "creates no more entitlement with respect to the scope of bargaining than already exists in the Statute." Union's Response at 26.

"Employee Counseling Services Programs (ECSP), also referred to as Employee Assistance Programs, deal with a broad range of employee personal problems that adversely affect job performance or conduct." FPM chapter 792, subchapter 6-1.a. Subchapter 6-8 of chapter 792 of the FPM provides:

a. The support and active participation of labor organizations will be a key factor in the success of any employee counseling services program (ECSP). In formulating and implementing ECSP policies and programs, agencies are reminded of their obligations under 5 U.S.C. Chapter 71 to negotiate with those unions which have been accorded exclusive recognition, or to consult with those unions which have consultation rights.

We find that section C is a restatement of the Agency's duty under the Statute to meet its bargaining obligations concerning changes in conditions of employment of bargaining unit employees and its duty under Government-wide regulations concerning the formulation and implementation of employee assistance programs and policies. See International Association of Machinists and Aerospace Workers, Local Lodge 2424 and U.S. Department of the Army, Aberdeen Proving Ground, Maryland, 31 FLRA 205, 214 (1988), decision on remand as to other matters 33 FLRA 512 (1988); and FPM chapter 792, subchapter 6-8.a. Section C requires the Agency to meet and negotiate with the Union prior to implementation of the drug testing program and would not prevent the Agency from exercising its rights under the Statute. For example, it would not prevent the Agency from implementing changes where those changes are consistent with the necessary functioning of the Agency. Aberdeen Proving Ground, Maryland, 31 FLRA at 214-15. See also Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734 (1987) (Proposal 3), aff'd on other grounds sub nom., Overseas Education Association v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988); rev'd on other grounds sub nom. Department of Defense Dependents Schools v. FLRA, 863 F.2d 988 (D.C. Cir. 1988), vacated per curiam en banc, No. 87-1735 (D.C. Cir. June 22, 1990) (order). We conclude that section C is negotiable because it merely requires the Agency to negotiate consistent with its obligations under law and regulation.

X. Proposal 8

Section 44.08 Consent Forms

No employee shall be required to sign any document associated with the drug abuse testing program stating he or she agrees to it when, in fact, he or she does not agree to it. All employees required to sign such documents will be given the option of having their signatures on such documents to signify notice and understanding of the terms of the document.

A. Positions of the Parties

The Agency contends that Proposal 8 is nonnegotiable because it requires the Agency to obtain an employee's consent before the Agency can conduct a drug test.

The Union states that Proposal 8 "protects the employee from being forced to endorse the legitimacy of the program, or from a forced statement of personal beliefs." Union's Response at 27. The Union contends that the proposal requires, in essence, that the form be a notification of the requirement that drug testing will be a condition of employment. The Union argues that the proposal does not allow employees to refuse to submit to a drug test or to prevent drug testing by the Agency by withholding their consent. The Union states that "[b]y its own terms, the proposal recognizes that employees may be required to submit themselves to tests." Id. The Union also contends that Proposal 8 is an "appropriate arrangement" under section 7106(b)(3) of the Statute.

B. Analysis

We find that Proposal 8 is nonnegotiable because it directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices and does not constitute an appropriate arrangement under section 7106(b)(3).

Apparently, the Union interprets Proposal 8 as precluding the Agency from forcing employees to indicate that they, as a matter of personal belief, agree with the Agency's drug testing policy. Union's Response at 27. The Union would provide employees the option of having their signature on the form to indicate only notice and understanding of the terms of the document. The Agency interprets the proposal as requiring the Agency to obtain an employee's consent before it can conduct a drug test. Agency's Statement at 7.

The literal wording of the proposal concerns the employee's agreement "to" the drug testing program; it does not concern the employee's agreement "with" the drug testing program. Based on the literal wording of Proposal 8, we interpret the proposal to mean that the Agency is precluded from requiring employees to indicate their agreement to be tested as a precondition of employment in a sensitive position. We do not interpret the proposal as concerning an employee's agreement, as a matter of personal belief, that drug testing is a proper policy. Consequently, because the Union's interpretation is not consistent with the literal wording of the proposal, we conclude that the proposal by its terms would preclude the Agency from requiring employees to agree to be tested for use of illegal drugs as a condition of their employment. The issue, therefore, is whether that limitation directly interferes with management's right to determine its internal security practices.

Management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to require employees to indicate by their signature on a form that they agree to be tested for use of illegal drugs as a condition of their employment in a critical position. See American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45, 53-55 (1988) (Tooele Army Depot). Because Proposal 8 provides employees the option of signing the form merely to indicate notification and understanding of the terms of the document, the proposal precludes the Agency from obtaining written statements from employees that they agree to be tested. Therefore, we find, consistent with Tooele Army Depot, that the proposal directly interferes with management's right under section 7106(a)(1).

Moreover, a proposal which would remove or nullify an agency requirement that employees indicate their agreement to be tested for the use of illegal drugs excessively interferes with management's right to determine its internal security practices and, thus, does not constitute an appropriate arrangement within the meaning of section 7106(b)(3). See Tooele Army Depot at 56. Because Proposal 8 would prevent the implementation of such a requirement, we find, consistent with Tooele Army Depot, that the proposal excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) and is not negotiable as an appropriate arrangement under section 7106(b)(3).

XI. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposal 1; Proposal 5, section B; Proposal 6, sections A, C and E; and Proposal 7, sections A and C.⁽³⁾ The petition for review as to Proposals 2 and 4; Proposal 5, sections A and D; Proposal 6, sections B and D; Proposal 8; and Proposals 9 and 10 is dismissed.

Opinion of Member Talkin, Dissenting in Part.

I would not find that Proposal 8 directly interferes with management's right to determine its internal security practices, and, in any event, I would find that proposal to be an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, I dissent with respect to Proposal 8.

The Union contends that nothing in this proposal would permit employees to refuse to be tested because they had refused to sign a consent form. Union's Response at 27. The Union further states that the second sentence of this proposal, which refers to the options to be given to "employees required to sign such documents[,]" supports this contention. Id. In contrast, the Agency merely notes that the Authority has previously found proposals to be nonnegotiable if they "require the employee's consent to conduct a drug test[.]" The Agency points to no language in the proposal that would refute the Union's interpretation; nor does it refer to a specific consent form used by the Agency that conditions drug testing on employee consent. Compare American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45, 53-54 (1988) (Tooele Army Depot).

In view of the Union's interpretation of the proposal's intent and the plain language of the proposal itself, I disagree with my colleagues' view that Proposal 8 would preclude the Agency from exercising its right to determine its internal security practices because it could no longer require employee consent to its drug testing program. As I read the proposal, the Agency could still subject all of its employees to its drug testing program, within the limits of Executive Order 12564 and the HHS Guidelines. Thus, the proposal does not limit the Agency's right to test employees in appropriate circumstances; nor does it prohibit the Agency from taking adverse actions against employees who refuse to be tested. Indeed, the second sentence of the proposal would permit the Agency to draft a document making submission to drug testing in certain circumstances a condition of employment, and to require all employees to sign that document to signify their notice and understanding of its contents. The proposal only denies the Agency the right to force individual employees to state that they agree with the drug program when, in fact, such a statement would be false. In my view, any other reading of the proposal is strained, despite the perhaps inartful use of the preposition "to" instead of "with" in the first sentence.

Read as I read it, the proposal would have no effect on the Agency's right to determine its internal security practices. Rather, it seeks to prohibit only the exercise of Governmental power over the thoughts and beliefs of employees, an Orwellian concept that, of course, has no relationship to the goals of the Statute.

My view of this issue would be no different even if it were clear that the proposal concerned the employees' prior consent to a drug testing program. Rather, I would find the requisite interference with an agency's right to determine its internal security practices only where a proposal sought to limit the actual drug testing of employees whom the agency could otherwise lawfully subject to such testing.

However, even assuming, arguendo, that this proposal could be read to create an interference with the Agency's right to determine its internal security practices, I would find it to be an appropriate arrangement under section 7106(b)(3) of the Statute. To determine whether a proposal constitutes an appropriate arrangement, it is necessary to determine whether it is (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army).

For the reasons stated in my dissent in American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439, 1453-54 (1990), I believe that employees are adversely affected by being subjected to drug testing, which to date has usually been achieved by urinalysis. Employees who, for moral, philosophical or other reasons, oppose the concept of random drug testing are additionally harmed if they are required to affirm their allegiance to a program that is abhorrent to them. Many who would submit to drug testing, if required as a condition of employment, will nonetheless view a requirement that they affix their signatures to a document declaring their agreement with a drug testing program as an affront to their basic principles. Therefore, I would find this proposal to be an arrangement designed to address those adverse effects.

Applying the criteria set forth in Kansas Army, I would also find the arrangement to be appropriate in the circumstances of this case. Clearly, the imposition of a drug testing program is wholly outside the control of the employees; although the giving of consent to a drug testing program is, of course, within their control, consent would be given, in these circumstances, only at the expense of truthfulness and a betrayal of personal beliefs. If the Agency were not able to obtain each employee's consent "to" the drug testing program in advance, I believe the effect would be minimal. Most employees would submit to a test if it were made a condition of employment; the Agency could take adverse actions against those who refuse. See Federal Personnel Manual Letter 792-19, 4.d(1) ("To maintain the integrity of the testing and enforcement program, agencies should initiate disciplinary action for employees who refuse to be tested. Such action may include, but is not necessarily limited to, removal of such employees as failing to meet a condition of employment . . . ."). Thus, the Agency might be forced to take personnel actions at a later date than it would have had it known earlier of the denial of consent. I do not see this as a major disruption to an agency's operations.

The Agency might argue that written consent facilitates the "search" under the Fourth Amendment that is necessarily involved in its drug testing program. See Skinner v. Railway Labor Executives Ass'n, 109 S. Ct. 1402, 1413 (1989). Where consent to a search is not given voluntarily, however---for example, where it is coerced by threats or force, or granted only in submission to a claim of lawful authority---that consent is deemed to be invalid and not capable of rendering a subsequent search reasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2047-48 (1973). Without the Union's proposal at issue here, an employee would appear to have the option only of signing a consent form at the risk of losing his or her job. In my view this would not constitute a voluntary consent. Compare Federal Aviation Administration, U.S. Department of Transportation and National Association of Air Traffic Specialists, 31 FLRA 172, 179-80 (1988) (consent to limited disclosure of records as a condition for self-referral to an employee assistance plan deemed to be voluntary because employees had other options for treatment). Therefore, the ability to obtain written consents from all employees who might be tested would not benefit the Agency in this regard.

Accordingly, under Kansas Army, I would find that the benefits of the proposal to the employees outweigh the effects on the Agency operations and any burdens on its right to act. I would, therefore, find Proposal 8 to be negotiable. My position in this case would necessarily require the overruling of the portion of Tooele Army Depot dealing with Proposals 4 and 6, as well as the portion of National Association of Government Employees, Local R14-5 and Pueblo Depot Activity, Pueblo, Colorado, 31 FLRA 62 (1988) dealing with Proposal 2.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Talkin's dissenting opinion as to Proposal 4 is set forth at footnote 2. Member Talkin's dissenting opinion as to Proposal 8 is set forth after the majority opinion.

2. Member Talkin does not believe that the proposal should be read in this manner. Rather, in her view, the reasonable interpretation of the proposal is that it requires the Agency to give the various types of notice, as outlined, 60 days before the implementation of the drug testing program, as mandated by section 4(a) of Executive Order 12564, and at some unspecified time prior to each test. Accordingly, Member Talkin would determine the negotiability of this proposal in accordance with the discussion on the following pages concerning a redrafted version of the proposal.

3. In finding those proposals to be negotiable, we make no judgment as to their merits.

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