[ v38 p1203 ]
38:1203(97)NG
The decision of the Authority follows:
38 FLRA No. 97
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 738
(Union)
and
U.S. DEPARTMENT OF THE ARMY
FORT LEAVENWORTH, KANSAS
(Agency)
0-NG-1673
DECISION AND ORDER ON NEGOTIABILITY ISSUES
December 31, 1990
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This case is before the Authority 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 three proposals concerning the implementation of the Agency's drug testing program.
Proposal 1 provides that employees shall normally be subject to only two random tests each year. We find that Proposal l directly interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its internal security practices.
The disputed portion of Proposal 2 provides that an adverse action taken against an employee must be based on the employee's failure to participate in or to complete a rehabilitation program. We find that Proposal 2 directly interferes with management's right under section 7106(a)(2)(A) of the Statute to discipline employees.
The disputed portion of Proposal 3 provides that an employee shall not be required to sign any document associated with the Agency's drug testing program if the document states that the employee agrees to the program, when in fact the employee does not agree. We find that Proposal 3 directly interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its internal security practices.
We also find that none of the disputed proposals is an "appropriate arrangement" under section 7106(b)(3) because each of the proposals excessively interferes with management's rights. Accordingly, we find that the proposals are nonnegotiable and we will dismiss the Union's petition for review.
II. Proposal 1
Employees subject to random drug testing shall normally only be subject to two random tests each year.
A. Positions of the Parties
l. The Agency
The Agency contends that Proposal 1 is nonnegotiable because it: (1) directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices by placing limits on the Agency's ability to conduct random drug testing, and (2) is inconsistent with the requirement of section 3(a) of Executive Order 12564 that the Agency establish a drug testing program. Agency's Statement of Position (Agency's Statement) at 1-3.
The Agency relies on the Authority's decisions 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, 1055-58 (1988) (Rock Island I)(2) and National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground, Installation Support Activity, 31 FLRA 241, 244 (1988) (Aberdeen Proving Ground)(3), both of which also involve the Department of the Army's "Alcohol and Drug Abuse Prevention and Control Program." The Agency contends that by limiting random drug testing to testing each employee twice a year, the proposal has the direct effect of prohibiting random testing of employees after their second test. Thus, the Agency argues, the deterrent effect of random drug testing would be lost. Id. at 2.
The Agency also contends that the use of the term "normally" does not make Proposal 1 negotiable. The Agency argues that the term prescribes a test governing its right under section 7106(a)(1) to conduct random drug testing. Id. at 3-4.
The Agency notes that Executive Order 12564 requires agencies to "establish a program to test for the use of illegal drugs by employees in sensitive positions." Id. at 3. The Agency contends that Proposal 1 "contradicts the plain language of the Executive Order" by not permitting the Agency to establish a random testing program. Id.
Finally, relying on the Authority's decision in Rock Island I, the Agency argues that because Proposal 1 in this case has the effect of prohibiting random drug testing in certain circumstances, it is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Id. at 1-2.
2. The Union
The Union states that "[t]he intent of the proposal is to 'normally' limit random testing to two tests each year." Union's Petition for Review at l, emphasis in original; Union's Response at 1. The Union argues that although the "norm" would be two tests each year, the proposal does not prevent management from testing more frequently if it determines that a reasonable basis for more testing exists. Union's Response at 5-6. The Union argues that the proposal "could also be viewed as illustrative rather than restrictive" because it would not limit management's ability to test employees where more frequent testing was determined to be necessary. Id. at 6. The Union cites American Federation of Government Employees, AFL-CIO, General Committee Of AFGE For SSA Locals and Social Security Administration, 23 FLRA 329, 330 (1990) (Social Security Administration I) and American Federation of Government Employees, Local 1760, AFL-CIO and Department of Health and Human Services, Social Security Administration, 15 FLRA 909 (1984) (Social Security Administration II).
In any event, the Union argues, the proposal is an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute because the intrusion on management's right is minimal, while the adverse effects on employee rights would be lessened. Id. at 7-9. Specifically, the Union argues that it is unlikely that the Agency would test any given employee more than once a year and limiting the number of tests would reduce the cost to the Agency of the drug testing program. The Union also claims that limiting the number of tests will reduce the loss of work and employee productivity and will minimize the disruption to the workplace. On the other hand, the Union asserts that, while "allowing more frequent testing should circumstances warrant," the proposal will benefit employees by reducing the intrusion of the Agency into their privacy, including their "intimate biological functions," by limiting the "unneeded expense" resulting from "false positives," and by minimizing "the stigma of unfounded suspicion of drug use[.]" Id. at 8-9.
B. Analysis and Conclusions
We find that Proposal 1 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 within the meaning of section 7106(b)(3).
Under Proposal 1, when an employee who has twice been subjected to random testing is randomly identified for a third test during the year, the Agency will "normally" not test that employee.(4) The Union explains the effect of the term "normally" in Proposal 1 by stating that the proposal would not limit the Agency to two tests annually of an employee where management has a reasonable basis for conducting additional tests. In effect, Proposal 1 limits management to two random tests of an employee annually and establishes a test of "reasonableness" for any subsequent tests.
Management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to establish a random drug testing program for employees in sensitive positions. See Rock Island I, 30 FLRA at 1054-58. Random drug testing is linked to management's right to determine its internal security practices because it contributes to management's objective of protecting the Agency's personnel, property, and operations from the threat of employee use of illegal drugs. The issue in this case is whether Proposal 1, by limiting the Agency's right to subject an employee to random testing, directly interferes with management's right to determine its internal security practices.
Proposals that prescribe substantive criteria governing the exercise of management's right to determine its internal security practices under section 7106(a)(1) of the Statute directly interfere with that right. National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 624-27 (1990). Because Proposal 1 would impose the substantive criterion of "reasonableness" on management's decision to subject an employee to a third test within a year, it directly interferes with management's right under section 7106(a)(1) to test employees on a random basis.
It is not relevant that, as explained by the Union, the proposal would permit the Agency to conduct additional tests on an employee where there is a reasonable basis for doing so. Management's right under section 7106(a)(1) includes the right to conduct random drug tests. Rock Island I at 1055-57. Restricting the grounds on which management may administer a third random test to an employee within a year limits management's right to conduct random drug tests. Because the proposal would impose a substantive restriction on management's right to conduct random tests of employees, we conclude that the effect of the proposal is not merely "illustrative" and thus that Social Security Administration I and Social Security Administration II are distinguishable from this case.
We also find that Proposal 1 is not an "appropriate arrangement" within the meaning of section 7106(b)(3). To determine whether a proposal constitutes an appropriate arrangement, we must determine whether the proposal 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 (1986) (Kansas Army National Guard).
Based on the record in this case, we find that Proposal 1 is intended to be an "arrangement" to minimize the adverse effects of management's imposition of a random drug testing program. We also find that the proposal is not an "appropriate" arrangement because it excessively interferes with management's rights under section 7106(a)(1) of the Statute. In order to determine whether a proposal excessively interferes with management's rights so as not to constitute an "appropriate" arrangement, the Authority balances the competing practical needs of employees and managers as they are affected by the proposal. See Kansas Army National Guard, 21 FLRA at 31-32.
The Union claims that the proposal benefits employees by limiting the Agency's intrusion into their personal privacy, by reducing the possibility of false positive drug test results, and by minimizing the potential stigma of being perceived as a drug user. The Union also claims that the limitation on random testing established by the proposal benefits the Agency because it reduces the loss of productivity that results from employee absence during testing and because it holds down the costs of the drug testing program. Union's Response at 7-9. The Agency claims, essentially, that the "deterrent effect of random drug testing" would be "completely lost" under the proposal because the proposal "prohibits" random testing. Agency's Statement at 2.
Because the proposal restricts, but does not preclude, random testing, we do not agree with the Agency that the deterrent effect of such testing would be "completely lost" under the proposal. Nevertheless, because the proposal would have the effect of immunizing an employee who has been randomly tested twice in a year from further random testing during that year, we believe that it would significantly reduce the effectiveness of random testing as a deterrent for those employees. In our opinion, the reduced effectiveness of the drug testing program which would result from the proposal outweighs the benefits to employees claimed by the Union, particularly because some of those benefits, such as reducing the possibility of false positives and minimizing potential stigma, are somewhat speculative.
Because we find that Proposal 1 would excessively interfere with management's right to determine its internal security practices by reducing the effectiveness of the Agency's random testing program, we conclude that the proposal is not an appropriate arrangement under section 7106(b)(3). Accordingly, the proposal is nonnegotiable.
III. Proposal 2
Employees who, as a result of random drug testing, are found to have a drug abuse problem and who agree to rehabilitation and successfully complete such rehabilitation and no longer pose a danger to health, safety or security, may be returned to the TDP [Test-Designated Positions]. Adverse action must be based upon failure to participate in or complete the rehabilitation program. [Only the underscored portion of the proposal is in dispute.]
A. Positions of the Parties
1. The Agency
The Agency contends that the disputed portion of Proposal 2 is nonnegotiable because it directly interferes with management's right under section 7106(a)(2)(A) to discipline employees for drug abuse and because it conflicts with the provisions of Executive Order 12564.
The Agency contends that Proposal 2 directly interferes with management's right to discipline employees because it would preclude management from taking an adverse action against an employee as long as that employee has enrolled in or successfully completed a rehabilitation program. Adverse actions, according to the Agency, would only be permitted where an employee has failed to participate in or complete such a program. Agency's Statement at 5. The Agency argues that employees have other obligations to the Agency involving conduct and performance and that these obligations are excluded from Proposal 2. The Agency concludes, therefore, that the proposal "immunizes" employees from discipline for failure to comply with those other obligations and thereby interferes with the exercise of management's rights under section 7106(a)(2)(A).
The Agency also contends that because Proposal 2 establishes a "flat and uncompromising prohibition against the taking of an adverse action except for failure to participate in or complete the rehabilitation program[,]" it excessively interferes with management's right to discipline and is not an appropriate arrangement under section 7106(b)(3). Id. at 6, emphasis in original.
Finally, the Agency notes that section 5(b) of Executive Order 12564 requires an agency to take disciplinary action against an employee who is found to use illegal drugs, unless the employee: (1) voluntarily identifies himself or herself as a user of illegal drugs or voluntarily submits to drug testing, prior to being identified through other means; (2) obtains counseling or rehabilitation through an Employee Assistance Program (EAP); and (3) thereafter refrains from using illegal drugs. The Agency also notes that section 5(d) of the Executive Order requires an agency to remove from the Federal service an employee who is found to use illegal drugs and who refuses to obtain counseling or rehabilitation or who does not thereafter refrain from using illegal drugs. The Agency contends that the proposal is inconsistent with the Executive Order because the proposal precludes disciplinary action against an employee in circumstances where discipline is required by the Order. In particular, the Agency argues that, by limiting management to disciplining employees only for failure to participate in or complete rehabilitation, the proposal precludes disciplinary action against an employee who has completed rehabilitation but who thereafter is found to have used illegal drugs. Id. at 7-8.
2. The Union
The Union states that the disputed portion of Proposal 2 is "[i]ntended to protect the integrity and viability of the drug rehabilitation program by limiting adverse actions to instances where employees fail to live up to their commitment under the program." Union's Petition for Review at 2; Union's Response at 2, 9.
The Union argues that the proposal does not unlawfully limit management's right to discipline employees who use illegal drugs. The Union claims that the proposal is intended to be consistent with Executive Order 12564 in that it provides that disciplinary action "is not required for an employee who . . . obtains counseling or rehabilitation . . . while refraining from continuing the use of illegal drugs." Union's Response at 10. The Union also argues that the proposal is consistent with the spirit of the Executive Order to rehabilitate rather than discipline employees. Id. at 9-14.
Finally, the Union contends that if the proposal is determined to interfere with management's right to discipline, it is, in any event, an appropriate arrangement to minimize the adverse effects on employees of management's exercise of that right. The Union argues that the proposal does not shield an employee participating in a rehabilitation program from discipline for reasons other than drug abuse, but rather is intended to encourage an employee who has a drug problem to participate in the Agency's treatment program. Because the employee is required to remain drug free while in the program, according to the Union, the failure of the employee to refrain from using illegal drugs "or other misconduct is not protected" by the proposal. Id. at 14.
B. Analysis and Conclusions
In order to determine the negotiability of the disputed sentence of Proposal 2, we need to consider whether that sentence is consistent with the Executive Order, Federal Personnel Letter (FPM) Letter 792-19, and with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. For the following reasons, we find that the disputed sentence is consistent with the Executive Order and the FPM Letter. We also find, however, that the disputed sentence directly interferes with management's right under section 7106(a)(2)(A) of the Statute to discipline employees and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3). Accordingly, we conclude that the disputed sentence is nonnegotiable.
1. The Executive Order and FPM Letter 792-19
Section 1 of Executive Order 12564 provides that: (1) Federal employees are required to refrain from using illegal drugs; (2) the "use of illegal drugs by Federal employees, whether on or off duty, is contrary to the efficiency of the service"; and (3) "[p]ersons who use illegal drugs are not suitable for Federal employment." Consequently, section 5(b) of the Executive Order requires agencies to "initiate action to discipline any employee who is found to use illegal drugs," except for employees who: (1) voluntarily identify themselves as users of illegal drugs or who are identified as users of illegal drugs under a voluntary drug testing program; (2) "[o]btain counseling or rehabilitation through an Employee Assistance Program [(EAP)]"; and (3) "[t]hereafter [refrain] from using illegal drugs." Under section 5(d) of the Executive Order, agencies are required to "initiate action to remove from the service any employee who is found to use illegal drugs" and who refuses to obtain counseling or rehabilitation through an EAP or who "[d]oes not thereafter refrain from using illegal drugs."
These provisions of Executive Order 12564 are clarified and supplemented by FPM Letter 792-19 as set forth in 54 Fed. Reg. 14024 (April 6, 1989). Section 5(d) of the FPM Letter provides that "[u]pon the first confirmed determination that an employee uses illegal drugs, there is a range of disciplinary actions available to an agency, from a written reprimand to removal" and that "[a]gencies have discretion in deciding what disciplinary measures to initiate[.]" 54 Fed. Reg. 14028. Agencies are required to initiate action to remove an employee from the service "upon a second confirmed finding of illegal drug use." Id. at Section 5.d.(7) of FPM Letter 792-19.
By its terms, the disputed sentence of Proposal 2 would preclude management from initiating an adverse action against employees who are found to use illegal drugs and who agree to undertake, and subsequently complete, rehabilitation. The disputed sentence is so broadly worded that it would preclude the Agency from initiating adverse actions against employees who are found, whether through voluntary programs or through some form of testing, to use illegal drugs and who agree to, and complete, rehabilitation. To the extent that the disputed sentence would preclude adverse actions against employees who are found, through a voluntary program, to use illegal drugs, it is consistent with the exception to discipline provided in section 5(b) of the Executive Order.
The disputed sentence would also preclude the Agency from initiating an adverse action against employees who are found, through some form of testing, to use illegal drugs. As noted above, section 5(b) of the Executive Order requires disciplinary action against employees who are found to use illegal drugs, but it does not mandate that an agency initiate an adverse action. Section 5(d) of FPM Letter 792-19 notes that an agency has a range of disciplinary actions, including adverse actions such as removal or suspensions for more than 15 days, that it can take against an employee who is found, for the first time, to use illegal drugs; but it does not require that the agency initiate any particular one of those actions. The Agency has discretion as to the action it will initiate. Consequently, to the extent that the disputed sentence would limit Agency disciplinary actions against employees determined for the first time to use illegal drugs to actions other than adverse actions, we conclude that the disputed sentence of Proposal 2 is not contrary to section 5(b) of the Executive Order or Section 5(d) of the FPM Letter. 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) (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).
The Union claims that the disputed sentence is not intended to protect an employee who fails to remain drug-free while participating in a rehabilitation program. Union's Response at 14. We interpret the Union's statement to mean that the disputed sentence would not preclude the Agency from initiating an adverse action against employees who are found a second time to use illegal drugs. Because that interpretation is consistent with the wording of Proposal 2, and based on the record in the case, we will adopt it for purposes of this decision. Based on that interpretation, and given that the disputed sentence permits an adverse action against an employee who fails to complete a rehabilitation program, we conclude that the disputed sentence is not contrary to section 5(d) of the Executive Order, which mandates removal of employees who, once having been found to use illegal drugs, fail to refrain from using those drugs thereafter or who do not complete a rehabilitation program. See International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269, 276 (1988) (proposal held not to prevent the agency from complying with the requirements of section 5(d) of the Executive Order because it would not bar the agency from removing an employee who fails to complete a drug rehabilitation program).
For the reasons stated above, we find that the disputed sentence would not preclude adverse actions against employees who, once having been found to use illegal drugs, are found a second time to use such drugs. Rather, we conclude that the effect of the proposal is to preclude the Agency from initiating an adverse action against an employee upon the first determination that the employee uses illegal drugs. Because the disputed sentence, interpreted in this manner, is consistent with the Executive Order and the FPM Letter, the issue becomes whether the limitation on the initiation of adverse actions set forth in the disputed sentence is negotiable under section 7106 of the Statute.
2. Management's Right to Discipline Employees Under Section 7106(a)(2)(A) of the Statute
Proposals that restrict management's discretion to choose the specific penalty to impose in disciplinary actions directly interfere with management's right, under section 7106(a)(2)(A) of the Statute, to discipline employees. See National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 29 FLRA 966, 969-70 (1987) (Fort Eustis). See also National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1519-20 (1987) (Bureau of Land Management). Because the disputed sentence of Proposal 2 would preclude the Agency from initiating an adverse action against an employee upon a first determination that the employee uses illegal drugs, we find, consistent with Fort Eustis, that Proposal 2 directly interferes with management's right to discipline employees under section 7106(a)(2)(A). See International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269, 274-76 (1988) (Panama Canal Commission) (proposal immunizing employees from discipline for acts which result from illegal drug use if they participate in and successfully complete a rehabilitation program held to directly interfere with management's rights under section 7106(a)(2)(A)).
Having determined that the disputed sentence of Proposal 2 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute, we next determine whether the disputed sentence is nevertheless negotiable as an appropriate arrangement under section 7106(b)(3).
As to whether the disputed sentence is an "arrangement" for employees adversely affected by the exercise of a management right, the Union claims that the disputed sentence is designed to "minimize the adverse effects" of the exercise of management's right to discipline. Union's Response at 14. The disputed sentence would mitigate as well the adverse consequences to employees of having been found, through the Agency's drug testing program, to use illegal drugs because it would "encourage employees who have drug problems to participate in the [A]gency's treatment programs." Id. at 13 and 14. We find, therefore, that the disputed sentence of the proposal constitutes an "arrangement" for employees adversely affected by the exercise of management's rights.
As to whether the disputed sentence of Proposal 2 constitutes an "appropriate" arrangement, weighing the effect of that portion of the proposal on management's rights against the benefits to employees claimed by the Union, we conclude that the disputed sentence excessively interferes with management's right to discipline. Although the disputed sentence, consistent with the Union's disclaimers, would not preclude discipline against an employee in a rehabilitation program for renewed use of illegal drugs or because the employee failed to participate in or complete the rehabilitation program, it would absolutely preclude management from taking an adverse action against an employee the first time that the employee is found to use illegal drugs.
In our opinion, although the disputed sentence of the proposal would give employees an opportunity to complete the rehabilitation program without worrying about whether they will receive the most severe disciplinary penalties, including removal, it provides that benefit to employees at the cost of the Agency's ability to initiate any adverse actions for a first time finding of illegal drug use. Because the disputed sentence imposes a blanket prohibition on adverse actions for employees determined for the first time to use illegal drugs, it would preclude the Agency from using the more severe forms of disciplinary action regardless of the circumstances surrounding those employees' use of drugs. Even where an employee used illegal drugs on duty in a manner that threatened the safety of employees or the security of the Agency's property and its operations, the Agency would be prevented from suspending that employee for more than 14 days or from removing that employee. We conclude that the benefit to employees that would result from the restriction on the Agency's ability to initiate adverse actions against those employees, and from the increased incentive to complete rehabilitation, does not outweigh the burden on management of the blanket prohibition against initiating adverse actions. See Portsmouth Federal Employees Metal Trades Council and Portsmouth Naval Shipyard, 34 FLRA 1150, 1158-60 (1990) (blanket prohibition on the use of evidence obtained in an interview when an employee was not afforded the contractual right of representation held not to constitute an appropriate arrangement because the prohibition would apply without regard to the circumstances in the case).
Moreover, the adverse consequences that result from the imposition of discipline against employees because they are found, through the Agency's drug testing program, to use illegal drugs, are based in conduct, that is, use of illegal drugs, for which employees are themselves responsible. Because the disputed sentence would benefit employees against whom the Agency is taking disciplinary action on the basis of conduct in which the employees themselves engaged, we conclude that the restriction on the Agency's ability to initiate adverse actions for such misconduct in this manner also outweighs the benefits to employees. See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina, 36 FLRA 28, 35-36 (1990); American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters, XVII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 903, 907-08 (1990).
We find, therefore, that the disputed sentence of Proposal 2 excessively interferes with the exercise of management's right to discipline employees under section 7106(a)(2)(A) of the Statute. Consequently, we conclude that the disputed sentence does not constitute an appropriate arrangement under section 7106(b)(3) and is nonnegotiable.
IV. Proposal 3
Management will not coerce or require the employees to participate in voluntary programs established under Section 3(b) of E.O. 12564. No employees shall be required to sign any document associated with the drug testing programs stating he or she agrees to it when, in fact, he or she does not agree to it. [Only the underscored portion of the proposal is in dispute.]
A. Positions of the Parties
l. The Agency
The Agency contends that the disputed portion of Proposal 3 directly interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. Agency's Statement of Position at 8.
The Agency states that, as part of its drug testing program, it has developed a "Condition of Employment" form that "certain employees" are required to sign. Id. The form requires those employees to indicate by their signature on the form that they will adhere to the terms of the drug testing program as a continuing condition of employment. The Agency argues, citing National Association of Government Employees, Local R14-5 and Pueblo Depot Activity, Pueblo, Colorado, 31 FLRA 62, 65-67 (1988) (Pueblo Depot Activity) and American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45, 51-57 (1988) (Tooele Army Depot), that proposals prohibiting an agency from requiring employees to sign that form are nonnegotiable.
Because Proposal 3 is not materially different from the proposals in Pueblo Depot Activity and Tooele Army Depot, the Agency argues, Proposal 3 must also be found to be nonnegotiable. The Agency also argues, relying on Tooele Army Depot, that Proposal 3 is not an appropriate arrangement under section 7106(b)(3).
2. The Union
The Union states that "[t]he intent [of the disputed portion of Proposal 3] is to prevent coercion of employees into making false statements which, in likely circumstances, would place them in violation of 18 U.S.C. 1001." Union's Petition for Review at 2; Union's Response at 3.
The Union claims that the proposal does not permit an employee to refuse to work or to refuse to be tested for the use of illegal drugs, but rather "merely allows the employee to refuse to sign a false statement which would be the case where an employee disagrees with the program." Union's Response at 15. The Union also claims that the proposal "is not an entitlement to refuse to sign a document acknowledging an imposed condition of employment." Id.
Finally, the Union contends that "the proposal is an 'appropriate arrangement' to alleviate the adverse effects of the exercise of a management right." Id. at 5. The Union argues that the proposal would have only a "slight impact" on management's right to discipline employees. Id. at 15. According to the Union, "[a]n employee's refusal to sign a statement which, in effect, misstates the employee's intent, would not shield the employee from future discipline for refusing to submit to involuntary drug testing." Id.
B. Analysis and Conclusion
We find that the disputed portion of Proposal 3 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).
The Union appears to interpret the disputed portion of Proposal 3 as precluding the Agency from requiring employees to indicate that they agree with the Agency's drug testing policy. For example, the Union indicates that the proposal "merely allows the employee to refuse to sign a false statement which would be the case where an employee disagrees with the program." Union's Response at 15. The Agency interprets the proposal as precluding it from requiring employees to indicate that they agree to be tested. We agree with the Agency.
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. Moreover, the form that the Agency uses does not require employees to indicate that they agree with the Agency's drug testing policy, but only that they agree to be tested as a condition of their employment in a critical position. See the Appendix to Tooele Army Depot, 31 FLRA at 61. Consequently, because the Union's interpretation is inconsistent 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 in a critical position. The issue, therefore, is whether such a 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 Tooele Army Depot, 31 FLRA 53-55. See also American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 38 FLRA No. 89, slip op. at 49-51 (1990) (Department of Education). Because the disputed portion of Proposal 3 precludes the Agency from requiring employees to indicate their agreement to be tested, we find, consistent with Tooele Army Depot and Department of Education, that that portion of 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. See also Department of Education, slip op. at 51. Because the disputed portion of Proposal 3 would prevent the implementation of such a requirement, including the requirement set forth in the existing Agency form, we find, consistent with Tooele Army Depot and Department of Education, that that portion of 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).
V. Order
The petition for review is dismissed.
Opinion of Member Talkin, Dissenting as to Proposals 1 and 3.
Although I agree with my colleagues that Proposal 1 directly interferes with management's right to determine its internal security practices, I would find that proposal to be an appropriate arrangement under section 7106(b)(3) of the Statute and to be negotiable on that basis. Therefore, I dissent with regard to the majority's conclusion that Proposal 1 is nonnegotiable.
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).
I agree with my colleagues' finding that Proposal 1 is intended to be an arrangement to minimize the adverse effects on employees of management's imposition of a random drug testing program. As I noted 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 (1990), the Supreme Court has acknowledged the serious invasion of personal privacy caused by urinalysis drug testing. See National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384, 1390 (1989); Skinner v. Railway Labor Executives Ass'n, 109 S. Ct. 1402, 1413 (1989). That intrusion into an employee's personal domain, as well as the disruption of the employee's work caused by random drug testing, is multiplied when an employer decides to test a given employee two or more times in a year. In addition, there may be unpleasant consequences for an employee's reputation in the workplace if it becomes known that the employee was required to submit to repeated tests for drug abuse. Therefore, a proposal to limit the normal incidence of drug testing to twice a year is clearly intended as an arrangement to address these adverse effects.
Applying the criteria set forth in Kansas Army, I would find the arrangement in this case to be appropriate. The Agency argues, and my colleagues agree, that the proposal imposes an impermissible limitation on management's right to deter drug use through an effective testing program. Specifically, the Agency argues that deterrence is so central to its program that it should be permitted to test, or to threaten to test, employees daily if by so doing it could achieve a drug-free workplace. Although I share the view that the Federal workplace should be free of illegal drug use, I do not believe that, where a random drug testing program is already in operation, a Federal agency can ignore the rights of the majority of its employees in an attempt to deter the few who might try to exploit its program. In this regard, I note that the Court of Appeals for the District of Columbia Circuit has recently held that:
What the government may not do in the case of ordinary employees is justify drug testing procedures that intrude upon constitutionally protected privacy interests with speculation about possible future job impairment or rules violations.
NTEU v. Yeutter, No. 90-5023, slip op. at 11 (D.C. Cir. Nov. 16, 1990). Therefore, I do not believe that the Agency has an unqualified right to seek to deter drug use by its employees.
In my view, the proposal would not impair the Agency's right to detect drug use at the workplace. It would still have the right to test any of its employees twice a year on a random basis, insofar as such testing is permitted by Executive Order 12564 and the HHS Guidelines. Further, the proposal, which is qualified by the word "normally," would not restrict the Agency from randomly testing employees more often if it had a reason to believe that such testing would in fact uncover drug abuse. Indeed, the proposal would permit the random testing of employees without individualized suspicion if the Agency believed that widespread drug use was occurring among its employees. Moreover, the Agency could test a given employee more than twice in a year if it had reason to suspect that employee might be using illegal drugs. What the proposal seeks to prohibit is the ongoing harassment of employees when there is no evidence that the workplace has been invaded or the work product has been impaired by illegal drug use. Thus, I would find that the limitation on random drug testing contained in the proposal is a minimal intrusion on management's right to determine its internal security practices.
When balanced against the significant benefits to the employees of being free from repeated invasions of personal privacy and disruptions in their work, the burdens placed by the proposal on management's operations are, I believe, insubstantial. Accordingly, I would find the proposal to be negotiable under section 7106(b)(3) of the Statute.
With regard to Proposal 3, which seeks to prohibit the Agency from forcing employees to sign documents attesting to their agreement with the Agency's drug testing programs, I dissent for the reasons set out fully in my dissent in American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 38 FLRA No. 89 (1990) (Department of Education). Although Proposal 3 does not contain language permitting employees the option of signing such a document only for the purpose of signifying notice and understanding of its terms, as does the proposal in Department of Education, this does not affect my basic position that an agency's inability to obtain written, advance consent from employees to a drug testing program would not impair its ability to administer that program and would not, therefore, interfere with its right to determine its internal security practices.
FOOTNOTES:
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have footnotes.)
1. Member Talkin's dissenting opinion as to Provisions 1 and 3 is set forth after the majority opinion.
2. Subsequently remanded as to other matters by 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), decision on remand, 33 FLRA 436 (1988), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 936 (1990).
3. Subsequently remanded as to other matters by 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 702 (1988), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground, Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 926 (1990).
4. To the extent that the proposal may be read as limiting the Agency to a total of two random tests for all employees in the Agency during a year, we reject that construction of the proposal. Rather, we conclude, based on the wording of the proposal and the record in the case, that the proposal would limit the Agency to two random tests per employee per year.