[ v41 p1106 ]
41:1106(88)NG
The decision of the Authority follows:
41 FLRA No. 88
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a petition for review filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). In Case No. 0-NG-1803, the petition for review concerns the negotiability of four provisions(1) of the parties' agreement disapproved by the Agency head under section 7114(c) of the Statute after mid-term bargaining on the implementation of the Agency's Drug Free Federal Workplace Plan. In Case No. 0-NG-1809, the petition for review concerns the negotiability of eight provisions(2) of the parties' mid-term agreement disapproved by the Agency head under section 7114(c) of the Statute. In its petition for review, the Union requested that Case No. 0-NG-1803 and Case No. 0-NG-1809 be consolidated for decision. In the absence of any objection by the Agency, the Union's request is granted. The provisions in Case No. 0-NG-1809 will be renumbered consecutively, following the provisions in Case No. 0-NG-1803.
Provision 2 provides that Employee Assistance Program (EAP) counselors shall not perform actual drug tests. We find that the provision is negotiable because it does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.
The disputed portion of Provision 3 permits a Union representative to attend the testing, provided the testing facility allows attendance. We find that Provision 3 is negotiable.
Provision 4 requires that personnel involved in the collection and testing process be qualified to perform their assigned tasks. We find that Provision 4 is inconsistent with section 3.6 of the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS), 53 Fed. Reg. 11979-89 (1988) (final Guidelines), which are Government-wide regulations. Consequently, we conclude that Provision 4 is nonnegotiable under section 7117(a)(1) of the Statute.
Provision 5 states that when an employee receives a positive test result, that employee may have a second test conducted by another HHS certified laboratory, at Agency expense, on a different portion of the original sample. We find that Provision 5 is nonnegotiable because it is inconsistent with section 2.7(e) of the final Guidelines.
Provision 6 provides that employees participating in the Employee Assistance Program shall be granted administrative leave for the time spent in counseling or treatment. The provision also states that the scheduling of such leave will be approved unless the employee's absence would cause severe workload disruption. We find that Provision 6 is negotiable.
The disputed portion of Provision 7 requires the Agency to provide the Union a copy of the document given to an employee explaining the reasons for requiring the employee to undergo drug testing based on the Agency's reasonable suspicion that the employee uses drugs. We find that the disputed portion of Provision 7 is negotiable.
The disputed portion of Provision 8 provides that unit employees will be provided notice that they are entitled to Union representation at all stages of the drug testing procedures. We find that the portion of Provision 8 in dispute is negotiable.
Provision 9 states that if an employee being tested is not able to provide a sufficient volume of urine, the employee may return the next day to complete the specimen. We find that the provision is inconsistent with section 2.2(f)(10) of the final Guidelines, which are Government-wide regulations. Therefore, the provision is nonnegotiable under section 7117(a)(1) of the Statute.
Provision 10 would insulate from discipline employees who voluntarily admit their drug use, complete counseling or an employee assistance program, and thereafter, refrain from drug use. Because the provision does not preclude management from disciplining employees for conduct resulting from drug use, we find that Provision 10 is negotiable.
II. Provision 2
Section 10
The Employer has determined that individuals serving as EAP counselors shall not perform actual drug testing, but shall only be used as part of an advisory, referral, and counseling program to supplement the Bureau's Drug Testing Program.
A. Positions of the Parties
1. Agency
The Agency contends that Provision 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) because the provision would prevent the Agency from assigning EAP counselors to perform actual drug testing. The Agency acknowledges that the provision is consistent with Federal Personnel Manual (FPM) Letter 792-16 (paragraph 7.d.(6), which provides guidance to agencies that EAP counselors should not be involved in the collection or samples or in reporting results of the tests), but asserts that provisions that are nonnegotiable under section 7106(a) do not become negotiable based on management actions. (3) Statement of Position at 2-3.
The Agency also argues that Provision 2 directly interferes with management's right, under section 7106(a)(2)(B), to determine the personnel who would conduct Agency operations. Id. at 3. The Agency cites Defense Logistics Agency Council of AFGE Locals, AFL-CIO and Department of Defense, Defense Logistics Agency, 24 FLRA 367 (1986), in which the Authority found that a proposal precluding management from assigning supervisory tasks to contractors directly interfered with management's right to determine the personnel by which agency operations will be conducted. The Agency notes that the Authority found the proposal nonnegotiable notwithstanding the fact that the proposal reflected existing regulatory limitations because the Authority concluded that incorporating those limitations in a contract would bind management for the life of the contract even if the regulations were changed.
The Agency contends that Provision 2 "is not saved by the fact that it states 'The Employer has determined' not to assign such duties." Id. The Agency argues that there is a "'crucial difference between management, as an exercise of its statutory rights under section 7106(a), unilaterally adopting matters proposed by the [u]nion and, on the other hand, requiring management to negotiate with the [u]nion over the inclusion of those same matters in a collective bargaining agreement.'" Id. (quoting Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 406 (1987) (Patent and Trademark Officer)), aff'd mem. as to other matters sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988). According to the Agency, if a particular management determination constitutes an exercise of a management right under section 7106(a), management cannot be required to negotiate over that matter because inclusion of the matter in the collective bargaining agreement would bind management for the life of the agreement and would preclude management from changing that determination.
2. Union
The Union states that Provision 2 means that EAP counselors, who are not Agency employees, shall not conduct actual drug testing on bargaining unit employees. Petition for Review at 2.
The Union states that in a Memorandum of Agreement (see appendix to this decision), the parties have agreed that wherever the phrase "the Employer has determined" appears in an agreement, it will be interpreted to mean that management has the unilateral right to change the policy on the matter at any time, as long as management bargains over the impact and implementation of the change. Union's Response at 2. According to the Union, the Agency's rights under the agreed-upon phrase "are no different than if the language were not in the contract and [the Agency] wished to change a substantively nonnegotiable policy." Id. The Union concludes that the parties' agreement renders the Agency's allegation of nonnegotiability "[u]nsupportable." Id.
The Union notes that the Agency cites no precedent for its position and that the Patent and Trademark Office case does not involve the phrase "the Employer has determined." The Union concludes that the Agency's interpretation of the provision ignores the parties' agreement and is contrary to "standard contract interpretation practices." Id. at 3.
B. Analysis and Conclusions
For the following reasons, we find that Provision 2 is negotiable.
Provision 2 states that "[t]he Employer has determined" that EAP counselors will not be used to conduct drug tests. Based on the parties' Memorandum of Agreement as to the meaning and effect of phrases such as "the Employer has determined" when used in the parties' contracts, we find that Provision 2 simply memorializes, "for informational purposes," the Agency's unilateral determination that it will not use EAP counselors to perform drug tests. See the Appendix to this decision. That is, consistent with the parties' Memorandum of Agreement, the Agency remains free at any time during the life of the contract to determine that it will use EAP counselors to conduct drug tests.
By agreeing to the use of the phrase "the Employer has determined", the Union acknowledges that the determination of whether to use EAP counselors to conduct drug tests constitutes an exercise of a management right. Furthermore, the Union agrees that the Agency can change that decision at any time, as long as it gives appropriate notice to the Union of the change. Consequently, we agree with the Union that, as worded, the provision would not prevent the Agency from deciding to use EAP counselors to conduct drug tests.
The Agency has misinterpreted Patent and Trademark Office. The circumstances of that case are distinguishable from the circumstances of the instant case. The proposal at issue in Patent and Trademark Office would have included portions of the agency's performance appraisal system in the collective bargaining agreement. As a result, the agency in that case would have been bound by the terms of those portions of the performance appraisal system, and would have been precluded from changing those portions of the system, for the life of the contract, notwithstanding the fact that they constituted the exercise of management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
In the instant case, on the other hand, consistent with the parties' Memorandum of Agreement, the provision does not bind the Agency for the life of the contract. Rather, the Agency may change the terms of the provision at any time, as long as it notifies the Union and fulfills its obligation to bargain over the impact and implementation of the change. We find, therefore, that Provision 2 is negotiable.
III. Provision 3
Section 17
A. Employees shall be provided with written notification when requested to appear for any sort of drug testing. Such written notice shall be given to the employee in advance of the designated test time. The notice shall contain the following information:
a. A description of the drug(s) or class of drug(s) for which they are to be tested.
b. If testing is requested as the result of "reasonable suspicion," a description of the basis of suspicion.
c. The consequences of refusing to appear for testing.
d. If the testing facility allows attendance, the Union representative may attend the testing.
B. Employees receiving notices to report for drug testing shall receive a second copy of the notice with the following typed at the top: "This copy may, at your option, be furnished to your union representative."
[Only the underscored portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Section d of Provision 3 is inconsistent with section 2.2(d) of the final Guidelines, which are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. The Agency states that section 2.2(d) provides that no unauthorized personnel are to be permitted in any part of the designated collection site. The Agency claims that Section d of Provision 3 is inconsistent with the final Guidelines because it would permit a Union representative "to be in attendance during the collection of a specimen for testing if the testing facility (which is run by a contractor) allows attendance." Statement of Position at 4.
The Agency also asserts that Section d of Provision 3 interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency states that "an agency's drug testing program is part of its internal security procedures" and that "[a]n integral aspect of establishing a drug testing program is management's decision as to the methods it will use to determine whether employees have used illegal drugs." Id. at 5 (citing National Treasury Employees Union and U.S. Customs Service, 31 FLRA 118, 121 (1989)). The Agency concludes that the "determination of who will be present at the collection site during the collection process" constitutes a determination as to the methods to be used in drug testing. Id.
The Agency notes that, under the final Guidelines, "the collection site person serves in the role of monitor during the collection process." Id. The Agency claims that if the testing facility allows a Union representative to accompany an employee, the Agency would not be able to prohibit the Union representative from attending. According to the Agency, the presence of a Union representative would require the collection site person to monitor both the giving of the sample and the Union representative and would "complicate and compromise the security of all specimens collected at the site[.]" Id. at 6. The Agency concludes that Section d of Provision 3 directly interferes with management's right to determine its internal security practices, including the right to determine who will have access to the collection site during the collection of specimens, because it would allow the Union representative to be present.
2. Union
The Union states that the disputed language in Provision 3 allows a Union representative to be present at the collection site when an employee is undergoing urine testing. The Union states that the provision "grants the testing facility the right to allow (or 'authorize') attendance of the [U]nion representative. Webster's New World Dictionary, defines 'authorize' as . . . 'to give official approval to or permission for.'" Response at 4 (quoting Webster's New World Dictionary). The Union concludes that the Agency violates fundamental principles of contract interpretation by arguing that the plain language of the provision conflicts with the final Guidelines, when the provision is actually consistent with the Guidelines.
The Union disagrees with the Agency's contention that Section d of Provision 3 interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Union acknowledges that the Agency's drug testing plan is part of its internal security procedures. However, the Union challenges "the assertion that the Agency is precluded from bargaining over the presence of the legal exclusive representative of an employee subject to drug testing, which is a type of formal investigation." Id. at 4.
The Union states that Section d of Provision 3 does not call for the Union representative's presence while employees are giving their urine samples. Rather, the provision merely allows attendance at the site. The Union maintains that once the testing facility authorizes Union attendance, the Agency's right to determine its internal security practices cannot supersede the Union's statutory right and obligation to represent an employee at any examination by a representative of the Agency (or at a contracted collection site) if the employee believes the examination may result in discipline and the employee requests representation. Id. at 5.
The Union claims that, assuming that the decision as to who may attend the collection site is a matter related to the Agency's internal security practices, the Authority must assess whether Section d of Provision 3 excessively interferes with a management right under section 7106(a) of the Statute so as not to constitute an appropriate arrangement under section 7106(b)(3). The Union asserts that Section d of Provision 3 allows it to perform its statutory obligation to represent employees undergoing drug testing and that the provision is clearly an appropriate arrangement because it does not excessively interfere with the Agency's right to determine how to conduct the tests.
The Union contends that the impact on employees of being required to undergo a random drug test "is as extreme and severe as any action taken in the work site" because such a test is "an extreme invasion of personal privacy," involves an analysis of employees' bodily fluids, may result in employees' feeling "great fear and shame," and could result in discipline or discharge. Id. at 6. The Union also notes that whether employees are tested is outside the employees' control. The Union also argues that the impact of the provision on management is minimal because only collection site personnel would be affected and they would already have authorized the Union representative's presence. Consequently, the Union concludes, the "minimal intrusion" on management's rights is outweighed by the benefit to employees of having the representative present. Id. at 7.
B. Analysis and Conclusions
Section d of Provision 3 would allow a Union representative to be present at the collection site when employees are undergoing urine testing, provided the collection facility allows the Union representative's presence. We find that Section d of Provision 3 is negotiable.
Proposals that permit a union representative to be present at the collection site when a sample is being collected from an employee are consistent with section 2.2(d) of the final Guidelines and do not directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA 174, 180 (1991), petition for review filed sub nom. U.S. Department of Agriculture, Forest Service v. FLRA, No. 91-1275 (D.C. Cir. June 10, 1991) (Forest Service). Because Provision 3 provides only for a Union representative to be present at the collection site while an employee is providing a urine sample for testing, we find, consistent with Forest Service, that Provision 3 is consistent with section 2.2(d) of the final Guidelines and does not directly interfere with management's right to determine its internal security practices under section 7106(a)(1). Consequently, we conclude that Provision 3 is negotiable as a procedure under section 7106(b)(2) of the Statute. Accordingly, we need not address the Union's appropriate arrangement argument.
IV. Provision 4
Section 21
Personnel involved in the collection/testing process shall be qualified to perform the assigned tasks.
A. Positions of the Parties
1. Agency
The Agency states that, based on the Union's explanation of the meaning of Provision 4, personnel involved in the collection/testing process must be medically and/or legally qualified to perform those functions. In addition, the Agency notes that section 3.3 of the final Guidelines establishes the criteria that laboratories must meet to qualify for certification and that the Authority has found that the final Guidelines are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute.
The Agency states that a similar proposal precluding testing from being performed by unqualified personnel was determined to be nonnegotiable by the U.S. Court of Appeals for the District of Columbia Circuit in Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground). According to the Agency, the court found that the final Guidelines provide the exclusive standard for qualifying or certifying test personnel and concluded that the proposal was inconsistent with the final Guidelines because it required laboratories to meet additional standards beyond those established by the Guidelines. Consequently, the Agency argues that Provision 4 is nonnegotiable.
2. Union
The Union acknowledges that in Aberdeen Proving Ground the court held a similar proposal to be nonnegotiable because the proposal went beyond the requirement of the final Guidelines "that laboratories and not personnel be certified." Response at 8. However, the Union "begs to differ with the D.C. Circuit's finding." Id. The Union asserts that "[c]onflict with [G]overnment-wide law or regulation requires that a proposal directly contradict the law." Id. at 8-9. The Union contends that Provision 4 does not directly contradict the final Guidelines.
Rather, according to the Union, the provision affords the Agency discretion over which the Agency is obligated to bargain. The Union contends that "[t]o the extent that the guidelines are silent on the qualifications of laboratory personnel and to the extent that unqualified personnel can generate false test results, thereby failing the [A]gency's attempts to ensure its internal security, declaring this proposal nonnegotiable contravenes general negotiability principles, common sense, the agency's mission, the efficiency and effectiveness of the government, and public policy." Id. at 9. The Union "urges" the Authority to "contest" the court's decision in Aberdeen Proving Ground. Id. at 9.
B. Analysis and Conclusions
We find that Provision 4 is inconsistent with the final Guidelines and conclude, therefore, that the provision is nonnegotiable under section 7117(a)(1) of the Statute.
In Aberdeen Proving Ground, the court found that the final Guidelines were intended to establish the exclusive standards for the certification of laboratories that performed drug tests under the Executive Order drug testing program. According to the court, "[a] laboratory's certification under the Guidelines 'shall be a determination that these qualification requirements have been met.'" Id. at 473 (quoting section 3.6 of the final Guidelines, 53 Fed. Reg. at 11987). The court also found that the final Guidelines do not specify requirements for the personnel who perform the test, "but rather depend on the ability of those responsible individuals [engaged in the day-to-day management and operation of laboratories] to select and oversee properly qualified employees in each specific laboratory[.]" Id. (quoting 53 Fed. Reg. at 11971).
Because the final Guidelines do not specify requirements for laboratory personnel who perform drug tests, the court found that the imposition of additional standards for those laboratory personnel was inconsistent with the final Guidelines. Id. Specifically, the court found that a proposal prescribing the qualifications of the personnel who will operate drug testing equipment "is inconsistent with the spirit, if not the letter, of the [final] Guidelines" and concluded that the proposal was nonnegotiable. Id. at 474.
On remand from the court in Aberdeen Proving Ground, the Authority decided, in Rock Island III (4), 35 FLRA 936, 938-39 (1990), that the proposal "regarding the qualifications of personnel operating [drug] testing equipment" was nonnegotiable because it was inconsistent with the final Guidelines. The Authority stated that "[i]n future cases involving proposals that are not materially different from Proposal 3 [in Rock Island III] . . . and that are intended to be applied in the same manner, we will also find them to be nonnegotiable." Id.
The Union has provided no persuasive reasons for us to reconsider the Authority's decision in Rock Island III. Consequently, we reject the Union's request that we decline to follow Aberdeen Proving Ground.
By its terms, and as explained by the Union, Provision 4 would prescribe the qualifications of the personnel who will operate drug testing equipment. That is, the provision would determine the qualifications of the staff of the independent, certified laboratory performing urinalysis under the final Guidelines. The specific qualifications for laboratory personnel who operate drug testing equipment prescribed by Provision 4 are in addition to the standards established by the final Guidelines for laboratory certification. We find, therefore, that Provision 4 is not materially different from Proposal 3 in Rock Island III and that it is intended to be applied in the same manner. Because we find that Provision 4 establishes specific qualifications for laboratory personnel in addition to the standards prescribed by the final Guidelines for laboratory certification, we conclude, consistent with Rock Island III, that the provision is inconsistent with the final Guidelines and, therefore, nonnegotiable under section 7117(a)(1) of the Statute.
V. Provision 5
Section 23
Upon receiving notification of a positive test result, the employee may have another test conducted on a different portion of the original sample by another HHS certified laboratory. ATF [Bureau of Alcohol, Tobacco and Firearms] will pay for the retest.
A. Positions of the Parties
1. Agency
The Agency contends that Provision 5 allows the employee, upon notification of a positive drug test, to require the Agency to have a second test performed on a different portion of the original sample by another certified laboratory and that the provision requires the Agency to pay for the retest. The Agency notes that, under the final Guidelines, the only person authorized to order a reanalysis of the original sample is the Medical Review Officer (MRO) and that a retest may be ordered only if there is a question as to the accuracy or validity of the result or if the MRO determines that the test result is scientifically insufficient.
The Agency contends that only the MRO can order a retest of the original sample and that only the MRO is authorized to determine the accuracy or validity of the drug test results, relying on the court's discussion of the role of the MRO in Aberdeen Proving Ground. According to the Agency, "the MRO makes all final determinations whether a particular sample demonstrates an employee's illegal drug use. While the MRO is not involved in personnel decisions, his or her medical evaluation of positive test results . . . is conclusive." Statement of Position at 7 (quoting Aberdeen Proving Ground at 472). The Agency argues that because the provision "would undermine the MRO's authority to make a determination whether a particular sample serves to demonstrate an employee's illegal drug use, it is clearly inconsistent with" the final Guidelines. Id. Consequently, the Agency concludes that Provision 5 is nonnegotiable under section 7117(a)(1) of the Statute.
2. Union
The Union explains that Provision 5 allows an employee whose urine sample tested positive for drugs to have a second test done on a reserved portion of the original urine sample and that the second test must be done by a certified laboratory at the Agency's expense.
The Union notes that the Agency disapproved Provision 5 based on Aberdeen Proving Ground. The Union indicates that it challenges the court's decision in Aberdeen Proving Ground and "urges the Authority to challenge it as well." Response at 9. The Union argues that, contrary to the reasoning in Aberdeen Proving Ground, Provision 5 "would not undermine the role of the [MRO] in determining whether a given sample demonstrates an employee's illegal drug use." Id. The Union asserts that Provision 5 "merely requires a second testing of the sample which expands the evidence available to the [A]gency and to the MRO." Id. at 9-10.
The Union acknowledges that, under section 2.7(e) of the final Guidelines, only the MRO can order a retest of the original sample. However, the Union argues that the final Guidelines "can not preclude the retesting by employees in defense of their own due process rights." Id. at 10. According to the Union, section 2.7(e) could not have been intended to prevent "an employee from generating whatever evidence he or she can in [his or] her own defense." Id. The Union contends that the result of such an interpretation of the final Guidelines is unconstitutional. Consequently, the Union urges the Authority to contest the Aberdeen Proving Ground decision on these grounds.
B. Analysis and Conclusions
Provision 5 would require the Agency, at the request of an employee who has tested positive on a drug test, to order a retest of another portion of the original sample by a different certified laboratory at Agency expense. We find that Provision 5 is inconsistent with section 2.7(e) of the final Guidelines, which are Government-wide regulations and, therefore, Provision 5 is nonnegotiable under section 7117 of the Statute.
In our decision on remand, Aberdeen III, 35 FLRA 926, 928 (1990), we stated that in future cases involving proposals that are not materially different from the proposal in Aberdeen III, and that are intended to be applied in the same manner, we will also find them to be nonnegotiable. In Aberdeen III, the results of a split sample test would be given to the employee's supervisor to refute the positive results received from the official drug test. The court found that such a proposal undermined the authority of the MRO, because only the MRO is capable of evaluating medical data from the drug tests. However, as to Provision 5, the Union has stated that its purpose is to provide the results of the retest on the original sample to the MRO. Provision 5 is silent as to the use of the results of the retest. Therefore, we will adopt the Union's interpretation for the purposes of this decision. Accordingly, construed in this manner, Provision 5 would not enable employees to challenge the MRO's judgment as to the results of the test, and is distinguishable from Aberdeen III.
The issue then becomes whether Provision 5 is otherwise consistent with the final Guidelines or whether grounds exist to find the provision, as interpreted by the Union, nonnegotiable under section 7117(a)(1). The final Guidelines are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. Aberdeen Proving Ground, 890 F.2d at 469-70; Rock Island II, 33 FLRA at 438-39. The final Guidelines state that "[s]hould any question arise as to the accuracy or validity of a positive test result, only the [MRO] is authorized to order a reanalysis of the original sample and such retests are authorized only at laboratories certified under these Guidelines." See section 2.7(e) of the final Guidelines, 53 Fed. Reg. 11986. Because Provision 5 conditions a retest of a portion of the original sample on the request of the employee, rather than on the determination of the MRO that such a reanalysis is necessary, the provision is inconsistent with section 2.7(e) of the final Guidelines.
More specifically, the final Guidelines specify that the MRO may order a reanalysis of the original sample when a question arises as to the accuracy or validity of a positive test result. See section 2.7(e) of the final Guidelines. Provision 5 allows the employee to have another test conducted on a different portion of the original sample whenever a positive test result occurs. In other words, the provision requires a retest of the original sample without regard to whether the MRO has determined that there is a question as to the accuracy or validity of the positive confirmatory test. Because Provision 5 would require a reanalysis of the original sample regardless of the grounds for such a retest under the final Guidelines, Provision 5 is inconsistent with section 2.7(e) of the final Guidelines.
We note that this provision is distinguishable from a similar proposal in National Federation of Federal Employees, Local 1384 and U.S. Department of the Air Force, 3245th Air Base Group, Hanscom Air Force Base, Massachusetts, 41 FLRA 195 (1991) (Hanscom AFB). In that case, the proposal provided for placing the amount of the urine sample in excess of 60 ml. in a separate container, which would be tested if the original sample was tested positive during confirmatory testing. In our decision in Hanscom AFB, we specifically noted that the proposal involved "testing of the split sample, not reanalysis of the original sample." Id. at 199. Because the proposal in Hanscom AFB did not involve retesting of the original sample, we found that it did not conflict with the responsibility of the MRO under section 2.7(e) of the final Guidelines to determine the accuracy or validity of a positive confirmatory test on the original sample. Provision 5, on the other hand, concerns retests of the original or official sample within the meaning of section 2.7(e).
Moreover, the nonnegotiability of Provision 5 is not affected by the fact that, under the final Guidelines, a retest of the original sample is conditioned on a determination by the MRO that a question exists as to the accuracy or validity of a positive confirmatory test result. Where a Government-wide regulation provides for a determination to be made by a particular official as a condition precedent to further action, a proposal that preempts the determination to be made by that official is inconsistent with the regulation. See Association of Civilian Technicians and U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island, 38 FLRA 1005, 1008-09 (1990), motion for reconsideration denied, 39 FLRA 381 (1991), petition for review filed as to other matters sub nom. U.S. Department of Defense, National Guard Bureau, Rhode Island National Guard, Providence, Rhode Island v. FLRA, No. 91-1090 (D.C. Cir. Feb. 19, 1991) (Rhode Island National Guard) (proposal which prescribed monetary awards to be paid to employees who attain specified levels of performance is nonnegotiable under section 7117(a)(1) of the Statute); National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 492-93 (1990), petition for review filed sub nom. United States Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island v. FLRA, No. 91-1045 (D.C. Cir. Jan. 24, 1991). Because Provision 5 preempts the MRO's determination as to the accuracy or validity of a confirmatory test, we find, consistent with Rhode Island National Guard, that the provision is inconsistent with the final Guidelines. See also Internal Revenue Service, Los Angeles District v. FLRA, 902 F.2d 998, 1001 (1990).
Accordingly, we find that Provision 5 is inconsistent with the final Guidelines, which are Government-wide regulations. Because Provision 5 is inconsistent with a Government-wide regulation, it is nonnegotiable under section 7117(a)(1) of the Statute.
We note that the Union urges us to find a portion of the final Guidelines to be unconstitutional. However, whether the final Guidelines are unconstitutional is irrelevant to a negotiability determination by the Authority because we have no authority to adjudicate the validity of a Government-wide regulation promulgated by another Federal administrative agency. American Federation of Government Employees v. FLRA, 794 F.2d 1013 (5th Cir. 1986). If the validity of a portion of the final Guidelines is in question, the challenge should be made by an interested party in another forum, such as a Federal district court. See, for example, National Treasury Employees Union v. Devine, 577 F. Supp. 738 (D.D.C. 1983), aff'd, 733 F.2d 114 (D.C. Cir. 1984) (union challenged Office of Personnel Management regulations in district court).
VI. Provision 6
Section 14
Employees who voluntarily attend and/or visit the EAP [Employee Assistance Program] for counseling and/or treatment; or who are referred to the EAP for counseling and/or treatment shall be granted administrative leave for participation in such counseling and/or treatment sessions. Scheduling of such leave will be approved absent severe workload disruption.
A. Positions of the Parties
1. Agency
The Agency contends that Provision 6 requires it to grant administrative leave to employees to attend EAP treatment or counseling unless their absence would create a severe disruption in work. The Agency maintains that the provision interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute, because it would prevent management from assigning work to employees during the time they were in counseling or treatment. The Agency argues that Provision 6 would prevent management from assigning work in situations other than those for which a severe workload disruption would occur.
The Agency also asserts that Provision 6 conflicts with a Government-wide regulation. According to the Agency, Federal Personnel Manual Supplement 990-2, chapter 630, subchapter 11-5, attachment 2, indicates the usual absences for which administrative leave may be granted. While the Agency admits that the listing is not exhaustive, the Agency argues that "'a grant of administrative leave for an extended period of time is not appropriate unless it is in furtherance of an agency function.'" Statement of Position at 3 (citing 61 Comp. Gen. 652 (1982) as quoted in American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 896 (1986) (FDIC Madison)). The Agency argues that counseling and/or treatment may last 30 days or longer which would be far longer than the amount of leave in the proposal at issue in FDIC Madison which the Authority found to be nonnegotiable. The Agency also questions whether the grant of such an amount of administrative leave for counseling and/or treatment would be "in furtherance of an agency function." Id.
The Agency contends that sick leave and/or annual leave may be used for the time an employee may spend receiving counseling and/or treatment. According to the Agency, the purpose of annual and sick leave is to provide employees time off for personal and emergency purposes. The Agency asserts that because it is the employee's personal need which creates the request for time to seek counseling and/or treatment, the employee should use earned leave to cover that time.
2. Union
The Union states that Provision 6 means that employees will be granted administrative leave during work hours to attend Employee Assistance Program treatment or counseling. According to the Union, the employees must ask their supervisor for approval before attending the session, and the supervisor must grant the time unless the loss of the employees would create a severe disruption in the work.
The Union contends that employees have a statutory right to accumulate and take leave. The Union argues that if management's rights are expanded to the level where they can deny leave for any work-related reason, an employee's right to leave can be "obliterated." Union's Response at 3. The Union asserts that leave requests for counseling or treatment should be approved, because an employee who has tested positive for drugs is obligated to attend counselling or treatment, or else face discipline or discharge. The Union contends that the regulatory requirements for an agency to offer and for an employee to undergo rehabilitation must be adhered to and override management's right to assign work.
The Union asserts that requiring management to approve an employee's request to take administrative leave for counseling or treatment as scheduled by the employee, absent a severe workload disruption, balances management's right to assign work with the employees' right to rehabilitation and the management duty to rehabilitate employees. In the alternative, the Union argues that Provision 6 constitutes an appropriate arrangement for employees who need counseling or treatment who are adversely affected by management's right to assign work. The Union maintains that the impact of refusing the leave to employees is significant because an employee can be fired for not participating in rehabilitation and an agency can lose its appropriations for failing to comply with an Executive Order. The Union points out that employees have no control over management's decision to refuse leave for counseling or treatment purposes. The Union contends that the impact on management's right to assign work is minimal, because management can still ask employees to delay a counselling session occasionally if work cannot be accomplished without the employee. According to the Union, the balance falls in favor of releasing employees for counseling or treatment.
The Union disagrees with the Agency's conclusion that the standard for granting administrative leave renders the provision nonnegotiable. The Union claims that the regulation and case law give discretion to agencies to determine when to grant administrative leave. According to the Union, as in any context where an agency has discretion, it can negotiate over how it will exercise its authority. The Union states that 5 U.S.C. § 6326 gives agencies the right to grant administrative leave excusing an employee from work when it is in the public interest. The Union cites to several Authority decisions, including National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 609 (1988) (Nuclear Regulatory Commission). The Union asserts that in Nuclear Regulatory Commission, the Authority found negotiable a provision allowing up to 90 days' leave in conjunction with an employee relocating following a reduction in force.
The Union argues that once it has been established that the Agency can grant administrative leave, and that the scope of its discretion is subject to negotiation, the Agency's concern regarding the length of leave required by this provision is unfounded. The Union contends that an agency's duty to provide rehabilitation for its employees who use drugs "earmarks" this use of leave as one which is "in the pubic interest" and which is "in furtherance of an agency function." Response at 6. The Union states that if the amount of leave reaches a point where a conflict with law or regulation arises, the Agency can cease providing the leave and require the employee to switch to available annual or sick leave. The Union maintains that "[t]he Authority case law upholding a ninety day grant or more of administrative leave as an adverse impact proposal appears to preclude the agency from ever [reaching] this point, but NTEU acknowledges that day could come." Id. at 7.
Finally, the Union replies to the Agency's argument that employees needing counseling or rehabilitation may use available annual or sick leave. The Union states that "regulatory permission to use sick and annual leave for a given purpose does not and cannot negate agency discretion to grant administrative leave for that same purpose." Id. The Union argues that because rehabilitation is both legally required and personally desired, it cannot be considered only as an employee's personal need. The Union argues, therefore, that Provision 6 is negotiable.
B. Analysis and Conclusions
Provision 6 provides that employees participating in the Employee Assistance Program shall be granted administrative leave for the time spent in counseling or treatment. The provision also provides that management will approve the scheduling of such leave unless the employee's absence would cause severe workload disruption. We conclude that Provision 6 is not inconsistent with applicable Government-wide regulations and that it does not excessively interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, we find that Provision 6 is negotiable.
1. Provision 6 Is Consistent with Applicable Regulations
The Authority has consistently construed those portions of the Federal Personnel Manual (FPM) concerning administrative leave (chapter 630, subchap. 11-5, and FPM Supplement 990-2, chap. 630, subchap. S11-5) as providing that the head of an agency has discretion to grant administrative leave to employees of the agency in certain situations for brief periods of time. Where management has discretion, it can negotiate over how it will exercise that discretion. See National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105, 1114 (1986) (the Authority found negotiable a provision that provided administrative leave or excused absence for short periods of agency closure due to circumstances beyond the agency's control, such as snow storms, floods, lack of utilities).
In this case, the Agency has argued that both the purpose and duration of the grant of administrative leave is impermissible. The Agency has not demonstrated to us, and it is not otherwise apparent, that granting administrative leave to an employee for the purpose of counseling or treatment is inconsistent with law or Government-wide regulation. As for the duration of the grant of administrative leave, the Union stated that "[i]f the amount of leave reaches a point where a conflict with law or regulation arises, [the Agency] can cease provision of the leave and require the employee to switch to annual and/or sick leave usage." Union's Response at 6-7.(5) Because the Union's explanation of Provision 6 is consistent with the wording of the provision, we shall adopt this interpretation for purposes of this decision. We find that, interpreted in this manner, Provision 6 is consistent with applicable regulatory limitations on the Agency's discretion to grant administrative leave.
2. Provision 6 Directly Interferes with Management's Right to Assign Work under Section 7106(a)(2)(B)
The plain wording of Provision 6 requires the Agency, at the request of the employee, to grant administrative leave for purposes of counseling or treatment for drug use. Under the provision, scheduling of such administrative leave will be approved unless it would result in a severe workload disruption.
Proposals that require management to grant employee leave requests directly interfere with management's right under section 7106(a)(2)(B) to assign work. See, for example, American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 380-81 (1991), petition for review filed as to other matters sub nom. U.S. Department of the Army, 101st Airborne Division, Fort Campbell, Kentucky, v. FLRA, No. 91-1298 (D.C. Cir. June 24, 1991) (Fort Campbell) (proposal requiring agency to grant employees 40 hours of administrative leave to attend scout functions was found to directly interfere with management's right to assign work).
Because Provision 6 requires management to approve leave for employees, absent severe workload disruption, we find, consistent with Fort Campbell, that the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 631-32 (1990).
3. Provision 6 Is an Appropriate Arrangement Within the Meaning of Section 7106(b)(3) of the Statute
The Union argues that Provision 6 is intended to be an appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts that the provision is intended to mitigate the adverse effects of management's exercise of its right to deny leave to employees who are undergoing drug counseling and treatment. For the following reasons, we conclude that this provision constitutes a negotiable appropriate arrangement under the standards set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National Guard).
Initially, we find that Provision 6 is an arrangement for adversely affected employees under section 7106(b)(3) of the Statute. The Union asserts that the provision is intended to mitigate the adverse effects on employees of the exercise of management's right to deny leave, so as to preclude an employee from attending counseling or treatment for drug use. We note that it is reasonably foreseeable that bargaining unit employees would be adversely affected by the exercise of management's right to deny administrative leave to employees needing to attend counseling or treatment for drug use. Indeed, under sections 5(a) and (b) of Executive Order No. 12564, attendance at the counseling and successful completion of treatment is required for employees who have been found to use illegal drugs, whether by voluntary admission or through testing, in order for those employees to continue their Federal employment.
In order to determine whether Provision 6 is an appropriate arrangement, within the meaning of section 7106(b)(3), we must examine whether the negative impact on management's right to assign work is disproportionate to the benefits the arrangements confer on employees. See Kansas Army National Guard, 21 FLRA at 33. That is, we must decide whether Provision 6 excessively interferes with the right to assign work.
Provision 6 requires the Agency to approve administrative leave for employees attending counseling and treatment for drug abuse, absent severe workload disruption. By requiring management to approve administrative leave, the provision precludes management from assigning the work to that employee that the employee would have performed had the employee remained on duty.
The question, therefore, is whether the burden imposed on management by the absence of the employee on administrative leave is disproportionate to the benefit the employee receives from the rehabilitation and counseling. We note, in this connection, that the Agency is required by section 5(a) and (b) of Executive Order No. 12564 to provide rehabilitation to employees who are found to use illegal drugs. Under section 5(d)(1) of the Executive Order, employees who are found to use illegal drugs must participate in counseling and rehabilitation treatment in order to retain employment with the Agency. That is, as a condition of continued employment with the Agency, employees found to use illegal drugs must attend the counseling and treatment for which the administrative leave is sought. In our view, the use of some worktime to enable employees to obtain rehabilitation benefits the Agency by assisting in the return of a rehabilitated employee to the work force and would be consistent with the drug abuse policy applicable to Federal employees.
We also note that the provision does not constitute an absolute requirement that any request for administrative leave be approved regardless of the timing or duration. Under the provision, the Agency retains some control over the scheduling of the leave. While not every potential disruption of Agency work would be a basis for denying leave, management would retain the ability to deny leave if an employee's absence would severely affect the workload. In our opinion, the benefit to employees from rehabilitation is sufficient to overcome the restriction on management's ability to deny leave.
On balance, therefore, we find that any negative effect of Provision 6 on Agency operations is outweighed by the benefit employees receive from the grant of administrative leave to attend counseling and treatment sessions for drug use. Consequently, we conclude that Provision 6 constitutes a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 46-50 (1991), decision on reconsideration as to other matters, 40 FLRA 849 (1991), petition for review filed sub nom. U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, No. 91-1139 (D.C. Cir. March 25, 1991).
VII. Provision 7
Section 15
If a supervisor reasonably suspects an ATF employee of using illegal drugs and orders such employee to be tested based on reasonable suspicion, the employee shall receive two copies of the written basis for the test. One copy shall have the following typed at the top: "This copy may, at your option, be furnished to your union representative." A copy of this written report shall be provided to the employee and to the local NTEU Chapter at the same time that it is provided to the designated Agency official.
[Only the underscored portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Provision 7 is nonnegotiable because it conflicts with the Privacy Act, 5 U.S.C. § 552a, which prohibits the disclosure of personal information from a system of records without the employee's consent. The Agency states that, consistent with section 3.c.(3) of FPM Letter 792-19, entitled "Establishment of Drug-Free Federal Workplace," the Agency's written documentation of the basis for the reasonable suspicion test is retained in the adverse action file compiled by the Agency. The Agency also states that its files are a system of records under the Privacy Act. The Agency cites its system of records designated ATF .007, 53 Fed. Reg. 6279, March 1, 1988.
The Agency acknowledges that material may be disclosed from a system of records if disclosure is made pursuant to a "routine use." The Agency also acknowledges that one of the routine uses for ATF System .007 "is disclosure to 'unions recognized as exclusive bargaining representatives[.]" Statement of Position at 5. The Agency contends, however, that a routine use cannot be interpreted so broadly as to permit the disclosure of drug testing records to the Union, as required by Provision 7. Specifically, the Agency argues that, under law and regulation, a routine use is a use which is compatible with, and related to, the purpose for which the information was collected. The Agency claims that "the release of any records to the Union relating to the drug testing of a specific employee . . . without the employee's consent is not a 'compatible' use of that record." Id. The Agency concludes, therefore, that disclosure of the reasons for requiring an employee to take a drug test, without the employee's express consent, would violate the Privacy Act.
The Agency asserts that Congress had an overriding interest in protecting the confidentiality of drug testing records and preserving the privacy of Federal employees. The Agency maintains that Congress accomplished this purpose by enacting Section 503(e) of Public Law 100-71, 101 Stat. 471, July 11, 1987, which strictly controls and limits the disclosure of drug testing records without the employee's consent. The Agency concludes that "[i]t is clear then that the release of any records to the Union relating to the drug testing of a specific employee (as opposed to records relating to the testing program as a whole) without the employee's consent is not a 'compatible' use of that record. Therefore, no routine use of a drug testing record could authorize its disclosure to the Union without the employee's consent." Statement of Position at 5. The Agency also argues that disclosure of these records is not warranted under the Freedom of Information Act.
2. Union
The Union states that the portion of Provision 7 in dispute would require management to give the Union a copy of the document given to an employee explaining the reasons for requiring a reasonable suspicion drug test.
The Union contends that the "reasonable suspicion" documentation is disclosable to the Union under section 7114(b) of the Statute. The Union argues that under the Privacy Act, a union may receive documents from an agency's adverse action system of records. According to the Union, the fact that employees would be able to provide a copy of the documentation to a union does not abrogate a union's right to receive this information directly from an agency. The Union contends that release of such documents to a union does not violate the Privacy Act.
The Union also argues that this documentation is necessary for the Union to fulfill its representational duties. The Union states that the documentation is necessary for it to determine whether any employee is receiving disparate treatment with regard to reasonable suspicion drug testing. The Union maintains that the grounds for disclosure under section 7114(b) are sufficient to support the negotiability of Provision 7.
B. Analysis and Conclusions
The portion of Provision 7 which is in dispute requires the Agency to provide the Union a copy of the document given to an employee explaining the reasons for requiring the employee to undergo drug testing based on the Agency's reasonable suspicion that the employee uses drugs. For the following reasons, we find that the disputed portion of Provision 7 is negotiable.
The Agency disapproved the portion of Provision 7 which is in dispute on the basis that it violated the Privacy Act. The Agency asserted that Congress intended to protect the confidentiality of any records relating to the drug testing of a specific employee, citing Section 503(e) of Public Law 100-71, 101 Stat. 471. We find that the Agency's reliance on Section 503(e) is inapposite.
Section 503(e) of Public Law 100-71, 101 Stat. 471 states: "The results of a drug test of a Federal employee may not be disclosed without the prior written consent of such employee[.]" The disputed portion of Provision 7 does not involve the result of an employee's drug test. Rather, that portion of Provision 7 concerns disclosure of the grounds on which the Agency has ordered an employee to undergo reasonable suspicion drug testing. The basis for the Agency's order of reasonable suspicion drug testing is an entirely different matter from the results of an employee's drug test. Accordingly, the Agency's reliance on this statute is misplaced.
We reject the Agency's contention that disclosure of the documentation sought is not consistent with the Privacy Act or is not disclosable as a routine use under Exemption (b)(3) of the Privacy Act. As acknowledged by the Agency, the documentation sought in Provision 7 is maintained in an Agency system of records, one of the routine uses for which is disclosure to unions recognized as exclusive bargaining representatives. Because one of the routine uses for the Agency's system of records containing that documentation is release to a union, release of the record to the Union in this case is required under Exemption (b)(3) of the Privacy Act, and thus does not violate that Act. See U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990), petition for review filed sub nom. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire v. FLRA, No. 90-2014 (1st Cir. Oct. 19, 1990).
We note, in this connection, that the Agency's "compatibility" argument is inapposite. Because that argument is based on the definition of routine use, it is an argument that is relevant to the question of whether a particular system of records--ATF System .007--should have disclosure to unions as a routine use. It is not an argument that is relevant to the issue of the disclosure of particular records in that system where there is such a routine use already established.
Consequently, we find that Provision 7 is consistent with law and conclude, therefore, that the provision is negotiable.
VIII. Provision 8
Section 21
Employees shall be provided with written notification when requested to appear for any sort of drug testing. Such written notice shall be given to the employee in advance of the designated test time. The notice shall contain the following information:
. . . .
3. Notification that the employee is entitled to union representation at all stages of the testing procedures.
[Only the underscored portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that the disputed portion of Provision 8 is inconsistent with section 2.2(d) of the final Guidelines, which are Government-wide regulations. Accordingly, the Agency argues that because the provision is inconsistent with a Government-wide regulation, it is nonnegotiable under section 7117(a)(1) of the Statute.
The Agency also argues that the provision interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
2. Union
The Union states that the disputed portion of Provision 8 requires that employees be notified that they are entitled to union representation at all stages of the testing procedures, including at the collection site. The Union states that the Union representative would not accompany employees while they produce their urine specimens.
The Union contends that Provision 8 does not authorize a representative to be present at the testing location. Rather, the Union states, the provision only gives the employee notice of a right to Union representation. The Union also contends that Provision 8 does not interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Union asserts that Provision 8 constitutes an appropriate arrangement for employees undergoing drug testing.
B. Analysis and Conclusions
In our analysis and conclusion with respect to Provision 3 above, we found that a proposal which allows a Union representative to be present at the collection site when employees are undergoing urine testing is negotiable. The disputed portion of Provision 8 requires the Agency to give employees who are to be tested for drugs a notice informing them that they are entitled to Union representation at all stages of the testing procedures. We find that Provision 8 is negotiable.
Proposals that provide notice to employees of a right to union representation or to be accompanied by a union representative during collection site procedures are negotiable because such proposals are consistent with the final Guidelines and do not directly interfere with management's right to determine its internal security practices. See Forest Service, 40 FLRA at 180. Accordingly, Provision 8 does not conflict with the final Guidelines and does not interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Proposals that require that notice be given to employees prior to a drug test but which do not specify how much notice is required, are also negotiable. See Dept. of Education, 38 FLRA at 1084 (subsection G of Proposal 4, which required management to inform employees that they have a right to union representation at any point in the drug testing process, would be negotiable). See our analysis and conclusions regarding Provision 3, above. We note, in this regard, that an exact amount of advance notice is not specified in Provision 8. Moreover, the Agency does not claim that the portion of Provision 8 that requires that the notice to employees of their right to Union representation during drug testing procedures be given to the employees in writing in advance is nonnegotiable.
Accordingly, consistent with Forest Service and our resolution of Provision 3, above, we find that the disputed portion of Provision 8 is negotiable.
IX. Provision 9
Section 24
If an employee is unable to provide a sufficient volume of urine within a reasonable time on the appointed day, he/she may return on the next day until the necessary amount is voided.
A. Positions of the Parties
1. Agency
The Agency contends that Provision 9 is nonnegotiable because, by extending the time allowed for a drug test, it directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
The Agency argues that the practical effects of Provision 9 would defeat the effectiveness of the test. According to the Agency, studies show that the "urine assay" methods generally available can detect light or occasional use of certain drugs for 1-3 days. Agency's Statement of Position at 9. The Agency argues, therefore, that if samples could have been collected 1 day apart they might have shown positive on the first sample and negative on the second sample. Put another way, the Agency claims "a person could have sufficient levels of an illegal drug in his/her system to test positive for that drug on one day and by the next day, the levels of the drug may be so reduced that the person would test negative." Id.
The Agency contends that the provision could delay an employee's test for 24 to 72 hours, if, for example, the original drug test was scheduled on a Friday before a long weekend. The Agency argues that the delay in collecting a specimen, as provided in Provision 9, could result in certain drugs not being detected by the test.
The Agency also argues that the delay in collecting a sample could provide employees who use drugs time to take measures to avoid detection, or to take steps to dilute the illegal drugs in their systems. The Agency concludes that Provision 9 would prevent the Agency "from relying on drug tests as a means of determining its internal security practices, in violation of [section] 7106(a)(1)." Id. at 10.
2. Union
The Union states that Provision 9 "allows an employee to return within 24 hours of the original test if [he or] she cannot produce sufficient urine within a reasonable time on the first day." Union's Petition for Review at 3.
The Union asserts that Provision 9 should be found to be negotiable for three reasons. The Union argues, first, that the provision allows the Agency the ability to define what is a "reasonable time" to provide a urine sample. The Union also argues that an agency could determine that the entire day is a "reasonable time" for employees being tested on a Friday. The Union states that it was not its "intent to extend this option beyond a twenty[-]four hour period." Union's Response at 15.
Next, the Union contends that allowing employees to return on a subsequent day would not allow those employees to dilute the traces of any illegal drugs in their systems. The Union points to the final Guidelines, which require collection personnel to give employees having difficulty providing a sufficient sample a glass of water to help generate a specimen.
Finally, the Union argues that the Authority found a similar proposal to be negotiable in National Treasury Employees Union and U.S. Customs Service, 31 FLRA 118, 123-25 (1988) (Customs Service).
B. Analysis and Conclusions
Provision 9 allows an employee who is being tested for illegal drug use and who cannot provide a sample of sufficient volume to return the next day for testing. We find that the provision is inconsistent with the final Guidelines. Because Provision 9 is inconsistent with the final Guidelines, which are Government-wide regulations, Provision 9 is nonnegotiable under section 7117(a)(1) of the Statute.
Provision 9 is substantively the same as Provision 4 in American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439, 1445 (1990) (Sierra Army Depot). In that case, we found that, by providing for an employee who was unable to supply a urine sample of sufficient volume to leave and return the next day, the provision at issue was inconsistent with section 2.2(f)(10) of the final Guidelines, which provides that the employee may be given liquid to drink and that the collection site person is to contact the appropriate authority for guidance. Because Provision 9 similarly allows an employee who is unable to provide a urine sample of sufficient volume to leave the collection site and return the next day, rather than to remain, while additional fluids are consumed and until guidance is received from an appropriate authority, the provision is inconsistent with section 2.2(f)(10) of the final Guidelines.
In our decision in Sierra Army Depot, 37 FLRA at 1447, moreover, we stated that in future situations involving similar proposals or provisions, we would follow the decision in Sierra Army Depot, rather than the Authority's decision in Customs Service, which was decided prior to the publication of the final Guidelines.
Accordingly, consistent with our decision in Sierra Army Depot, we find that Provision 9 is inconsistent with section 2.2(f)(10) of the final Guidelines, which are Government-wide regulations. Therefore, Provision 9 is nonnegotiable under section 7117(a)(1) of the Statute. Because we have found that Provision 9 is inconsistent with a Government-wide regulation and is nonnegotiable under section 7117(a)(1) of the Statute, we need not consider the other arguments raised by the parties.
X. Provision 10
Section 54
No employee shall be disciplined who voluntarily admits his or her drug use, completes counseling or an EAP, and thereafter refrains from drug use. The Employer is not precluded from administering discipline for reasons unrelated to the admission of drug use.(6)
A. Positions of the Parties
1. Agency
The Agency asserts that Provision 10 violates management's right to discipline under section 7106(a)(2)(A) of the Statute. The Agency compares Provision 10 to proposals which the Authority has found to be nonnegotiable. Those proposals would limit action against employees whose illegal drug use resulted in an act or omission which was cause for discipline.
The Agency contends that the Authority has misinterpreted Section 5(b) of Executive Order No. 12564. According to the Agency, the Executive Order states that discipline is not required if the employee meets the criteria listed in the Executive Order. That is, the employee must voluntarily identify himself as a user of illegal drugs or volunteer for drug testing, prior to being identified through other means; the employee must obtain counseling through an employee assistance program; and thereafter the employee must refrain from using illegal drugs. However, the Agency asserts that although discipline is not required if the employee meets the above criteria, the Agency may still impose discipline against the employee if it chooses. The Agency states that Provision 10 would prohibit management from taking discipline, even where it believed discipline was warranted.
The Agency claims that the proposal is broad, limiting its ability to impose discipline where an employee attends a rehabilitation program. The Agency states that this violates the interpretation of the Rehabilitation Act adopted by the Merit Systems Protection Board (MSPB). The Agency cites Hougens v. U.S. Postal Service, 38 M.S.P.R. 145 (1988) (the Board held that lesser disciplinary actions coupled with a referral to a counselling program may be appropriate as a form of reasonable accommodation under the Rehabilitation Act, 29 U.S.C. § 791 et seq.). Accordingly, the Agency asserts that under Provision 10, the Agency would be precluded from taking appropriate disciplinary action, authorized by the Executive Order and the MSPB, irrespective of the circumstances, even if the discipline would benefit the employee by impressing upon him or her the seriousness of the misconduct as well as enforcing the Agency's commitment to a drug-free workplace. Therefore, the Agency contends that Provision 10 is nonnegotiable.
2. Union
The Union states that Provision 10 prohibits disciplinary action against employees who voluntarily admit their drug use and successfully undergo rehabilitation. According to the Union, this provision is not intended to preclude the Agency from being able to discipline an employee who warrants discipline for non-drug related reasons.
The Union argues that Executive Order No. 12564 treats employees who voluntarily admit drug use differently from those who test positive. The Union states that Section 5(b) of the Executive Order requires discipline against employees found to use illegal drugs, but that disciplinary action for those who meet the criteria, as set forth in this provision, is discretionary. The Union asserts that the Authority has long held that an agency is free to negotiate within the scope of its discretionary authority, and the Agency has acknowledged its discretion in this area.
According to the Union, the Authority precedent relied on by the Agency is inapplicable. The Union contends that its proposal is like a proposal found to be negotiable by the Authority in National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground Installation Support Activity, 31 FLRA 241, 248 (1988). The Union asserts that because this provision "exactly tracks" the Executive Order it is sufficient to overcome the Agency's contention that it excessively interferes with its right to discipline. Response at 18. Even if the Authority finds that Provision 10 does interfere with the Agency's right to discipline, however, the Union contends that it constitutes an appropriate arrangement for employees adversely affected by the exercise of a management right.
B. Analysis and Conclusions
Provision 10 contained one sentence when the Union submitted its petition for review. The Union added a second sentence to the provision in its statement of intent, which was filed before the Agency's Statement of Position. The Agency addressed the amended Provision 10 in its Statement of Position and did not raise an objection to the addition. The additional sentence incorporates into the provision itself the Union's stated intent. Because both parties have fully expressed their positions as to the provision, we will consider the amended Provision 10 in the interest of assisting the parties in resolving this negotiability dispute. See American Federation of Government Employees, Local 2429 and U.S. Department of the Air Force, Headquarters Space Systems Division, Los Angeles, California, 38 FLRA 1469, 1471 (1991).
Provision 10 would insulate from discipline employees who voluntarily admit their drug use, complete counseling or an employee assistance program, and thereafter, refrain from drug use. The Union has added that the Agency is not precluded from disciplining employees for reasons unrelated to the admission of drug use. The Union states that Provision 10 "does not apply to an employee whose drug use or behavior in general creates justification for discipline. This [provision] applies only to those who freely admit drug use, complete counseling, refrain [from] future drug use and have committed no act or omission warranting discipline." Response at 18. Because the provision, as worded, precludes discipline only for drug use and not for conduct that results from drug use or for conduct unrelated to drug use, we find that the Union's explanation is consistent with the terms of the provision and we will adopt that interpretation for purposes of this decision.
Provisions which preclude discipline against employees only for drug use when those employees voluntarily disclose their use of drugs, undergo rehabilitation, and remain drug free, are consistent with Section 5 of Executive Order No. 12564 but directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. American Federation of Government Employees, Local 1692 and U.S. Department of the Air Force, Mather Air Force Base, California, 40 FLRA 868, 873-75 (1991) (Mather Air Force Base). However, the Authority has found that such provisions do not excessively interfere with management's right to discipline, but constitute negotiable appropriate arrangements under section 7106(b)(3) of the Statute. Specifically, the Authority has concluded that the benefit to employees of such a proposal--that is, of being exempt from discipline if they voluntarily disclose that they use illegal drugs, enter rehabilitation, and refrain from using drugs thereafter--outweighs the burden imposed on management's right to discipline. Id.
Consequently, because Provision 10 precludes discipline against employees only for drug use when those employees voluntarily admit their drug use, undergo rehabilitation, and remain drug free, we find, consistent with our decision in Mather Air Force Base, that Provision 10 is consistent with Section 5(b) of Executive Order No. 12564 and that it directly, but not excessively, interferes with management's right to discipline under section 7106(a)(1). We conclude, therefore, that Provision 10 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
XI. Order
The Agency shall rescind its disapproval of Provisions 2, 3, 6, 7, 8, and 10.(7) The petition for review is dismissed as to Provisions 4, 5, and 9.
The parties hereby acknowledge that provisions in all negotiated agreements between the Bureau of Alcohol, Tobacco and Firearms and the National Treasury Employees Union which are preceded by the phrase, "Management has determined" or, "the Employer has determined" are management rights which have been included in the contract unilaterally for informational purposes. It is understood that these provisions may be changed unilaterally by management during the life of the contract. Management acknowledges its obligation to provide notification to the Union of any such changes.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Union withdrew Provision 1 from consideration in its Response to the Agency's Statement of Position. Accordingly, Provision 1 is not before us and will not be considered in this decision.
2. The Union withdrew Provisions 5, 6, and 7 from consideration in its Response to the Agency's Statement of Position. Those provisions will not be considered.
3. The Agency refers to FPM Letter 792-16 in its statement of position. FPM Letter 792-16 was superseded by FPM Letter 792-19, dated December 17, 1989. In all instances where FPM Letter 792-16 is cited, we will apply FPM Letter 792-19. However, we note that FPM Letter 792-19 effected no substantive changes bearing on the appeal in this case.
4. 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 (1988) (Rock Island I), remanded as to other matters sub nom. 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) (Rock Island II), 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) (Aberdeen Proving Ground), decision on remand, 35 FLRA 936 (1990) (Rock Island III).
5. The Union relies on the Authority's decision on Proposal 38.26, subpart C in Nuclear Regulatory Commission. That decision did not involve administrative leave, but time spent on house hunting and relocation after a reduction in force. See, for example, 5 U.S.C. § 5724 and 41 C.F.R. Chapter 302, especially Part 302-4, Travel to Seek Residence Quarters.
6. The Union added the second sentence to the provision, in its statement of intent and in its Response to the Agency's Statement of Position.
7. In finding Provisions 2, 3, 6, 7, 8, and 10 to be negotiable, we make no judgments as to their merits.