[ v43 p836 ]
43:0836(69)NG
The decision of the Authority follows:
43 FLRA No. 69
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
AFL-CIO
LOCAL 446
(Union)
and
U.S. DEPARTMENT OF THE INTERIOR
NATIONAL PARK SERVICE, BLUE RIDGE PARKWAY
ASHEVILLE, NORTH CAROLINA
(Agency)
0-NG-1642
DECISION AND ORDER ON NEGOTIABILITY ISSUES
December 30, 1991
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 by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of proposals relating to the implementation of the Agency's drug testing program.(2)
Proposal 1 provides that the Agency's drug testing program will be conducted in compliance with applicable laws, rules, regulations and the parties' agreement. We find that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 2B states that prior to deciding to test an employee for reasonable, articulable suspicion, the supervisor will document his or her suspicions. We find that the proposal is negotiable.
Proposal 2C, which, in part, would allow employees to grieve the designation of their positions as sensitive for drug testing purposes, is negotiable. The remainder of the proposal, which would preclude the testing of an employee until the challenge to the designation is resolved, is nonnegotiable because it would directly and excessively interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
The first sentence of Proposal 2D would require the Agency to provide transportation to an off-site laboratory for drug testing. We find that this sentence is a negotiable procedure under the Statute. The third sentence of Proposal 2D would require the Agency to provide employees with a minimum of 2 hours' notice before reporting for transportation to the off-site laboratory. The Authority finds, with Member Talkin dissenting, that the third sentence of the proposal is outside the duty to bargain and does not constitute a negotiable appropriate arrangement.
The first introductory paragraph of Proposal 4, which would require the Agency to provide 30 days' notice prior to actual testing, directly and excessively interferes with the Agency's right to determine its internal security practices. The second introductory paragraph of the proposal, requiring the Agency to provide briefings to all employees and allowing the Union to participate in the briefings, is negotiable. The third introductory paragraph of the proposal and subsections 4A-E and 4G-H, which require the Agency to provide specific information 24 hours prior to a drug test directly and excessively interfere with the Agency's right to determine its internal security practices.
Subsection 1 of Proposal 4F would require the Agency to provide employees with quarterly lists of substances that might cause false positive test results and also to provide such lists 24 hours in advance of testing. The portion requiring the Agency to furnish quarterly lists to the Union is negotiable. The remaining portion is nonnegotiable. Subsections 2 and 3 of Proposal 4F provide employees with an opportunity to declare and document the use of nonprescription medication or substances that might produce a false positive result or the use of a specific drug following a confirmed positive result. Subsections 2 and 3 are negotiable procedures.
Proposal 4I would require that an employee's original sample be split after its collection, that the Agency retain a portion, and that an employee retain the right to have a retest if there is a confirmed positive result. We find that the record is insufficient to enable us to make a negotiability determination and we will dismiss the petition for review as to this proposal.
Proposal 4J would require the Agency to provide employees up to 4 hours of administrative leave to take a drug test for independent, certified processing. The record is insufficient to enable us to determine the negotiability of the proposal and will dismiss the petition for review as to this proposal.
Proposal 5 contains several disputed sections. We find that the first introductory paragraph of Proposal 5, providing that testing will be conducted in accordance with the Department of Health and Human Services (HHS) scientific and technical guidelines and that the methods and equipment used will meet the guidelines, is negotiable as an appropriate arrangement. We also find that Section A, which references unspecified terms of the parties' agreement, is not sufficiently specific to permit a determination as to its negotiability. Section B, which would allow employees to provide a urine specimen in a sanitary, secluded area that affords visual and auditory privacy, is negotiable as an appropriate arrangement.
Section C of Proposal 5, which provides for the use of a Gas Chromatography/Mass Spectrometry test to verify positive test results, is negotiable as an appropriate arrangement. Section D of the proposal, which would allow an employee who is unable to provide a specimen on the test day to return on the next day, is nonnegotiable because it is inconsistent with the Mandatory Guidelines for Federal Workplace Testing issued by HHS, 53 Fed. Reg. 11970 (1988) (Guidelines). Section E, which concerns the use of the HHS chain of custody procedures, is not in dispute. We will dismiss the petition for review as to this section. Section F, which requires the authorized collection agent to collect all drug testing specimens, is negotiable.
Section A of Proposal 6 requires that samples be subject to strict chain of custody procedures and that each person who has custody for any amount of time provide a signature. The record is insufficient to enable us to determine the negotiability of this section and we will dismiss the petition for review as to this section. Section B provides that the Agency shall release information concerning employee drug tests only to those individuals who have an "absolute need to know." We conclude that Section B is negotiable. Section C requires the Agency to destroy any employee records concerning non-confirmed drug test results. Section C is inconsistent with Federal Personnel Manual (FPM) Supplement 293-31 and the Guidelines, and therefore, is nonnegotiable under section 7117(a)(1) of the Statute. Section D requires the Agency to provide copies of all records and documents to employees relating to their drug test. We find that this section of the proposal is consistent with law and regulation and, therefore, is negotiable.
Proposals 7A and 7B, which concern the referral of employees or their family members to counseling and rehabilitation services for substance abuse problems, at the Agency's expense, are inconsistent with FPM Supplement 792-2, subchapter S6-3 and, therefore, are nonnegotiable. Proposal 7C, relating to the Agency's development of an employee counseling or drug rehabilitation program, is negotiable. The first sentence of Proposal 7D, which would require the Agency to return an employee to duty after successful completion of a rehabilitation program, is a negotiable appropriate arrangement. The second sentence of Proposal 7D, which would require the Agency to return an affected employee to his or her former position, is nonnegotiable because it excessively interferes with the Agency's rights to determine its internal security practices and to assign employees.
Proposal 8 would prevent the Agency from requiring employees to sign any documents stating that they agree or disagree to be tested. The Authority finds, with Member Talkin dissenting, that Proposal 8 is nonnegotiable because it directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Proposal 9A, which states that no bargaining unit employees will be involved in any phase of drug testing procedures, is nonnegotiable because it directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
Proposal 9B, which would require the Agency to provide training to bargaining unit employees and Union representatives concerning the drug testing program, is negotiable.
Proposal 10, which would require the Agency to grant official time or administrative leave to employees for all facets of drug testing, is not sufficiently specific to enable us to make a negotiability determination. Therefore, we will dismiss the petition for review as to this proposal.
The first sentence of Proposal 11, which states that the Agency will not require employees to participate in voluntary drug testing programs, is negotiable, inasmuch as it is not inconsistent with Executive Order 12564 or management's right to determine its internal security practices under the Statute. The second sentence of Proposal 11, however, under which employees will not incur any advantage or disadvantage based on their participation or non-participation in voluntary drug testing programs, is inconsistent with the Executive Order and management's right to discipline under section 7106(a)(2)(A) of the Statute.
Proposal 12A would require the Agency to provide statistical data relating to the Agency's drug testing program. We find that the proposal directly and excessively interferes with the Agency's right to determine its internal security practices and is inconsistent with law. Proposal 12B, which would require the Agency to provide certain documentation to the Union, is not sufficiently specific to enable us to make a negotiability determination. Therefore, we will dismiss the Union's petition for review as it relates to Proposal 12B.
II. Proposal 1
The employer agrees that the establishment and administration of its drug abuse testing program will be done in strict compliance with the U.S. Constitution and all applicable laws, rules and regulations and this agreement. [Only the underlined portions of the proposal are in dispute.(3)]
A. Positions of the Parties
The Agency argues that the proposal is nonnegotiable because it is inconsistent with Executive Order 12564 and interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Specifically, the Agency argues that the proposal's use of the term "drug abuse" is ambiguous and could be construed to mean that the Agency could only test employees for an "abuse" of illegal drugs but not for any usage that may not be considered an abuse. The Agency asserts that, interpreted in this manner, the proposal is inconsistent with sections 1 and 3 of the Executive Order. Those sections require, respectively, that employees refrain from the use of illegal drugs, and that agencies establish programs to test for the use of illegal drugs, which, according to the Agency, is more expansive than the abuse of illegal drugs. The Agency argues that as the Authority has held that Executive Order 12564 constitutes law under section 7117(a)(1) of the Statute, the proposal is nonnegotiable under section 7117(a)(1). The Agency adds, however, that if the Union states that the term "drug abuse" has the same meaning as the Executive Order's reference to the use of illegal drugs, then the Agency would have no objection to this term in the proposal.
The Agency also contends that the portion of the proposal requiring "strict" compliance with laws, rules and regulations establishes a standard that is inconsistent with the sole and exclusive discretion expressly delegated by the Executive Order to the head of each agency concerning various aspects of drug testing programs. The Agency also contends that requiring strict compliance with laws, rules, and regulations directly interferes with the Agency's right to determine its internal security practices. The Agency states that it has the discretion to establish standards for determining how it will comply with applicable laws, rules, and regulations in establishing and administering its drug testing program and that strict compliance may be more than is necessary. Finally, the Agency contends that the proposal does not qualify as an appropriate arrangement under section 7106(b)(3) of the Statute because the Union merely made a blanket allegation to this effect and did not provide any supporting facts.
The Union, which did not file a response to the Agency's statement of position, asserts in its petition for review that the proposal merely requires the Agency to conduct its drug testing in accordance with applicable laws, rules, regulations, and the parties' agreement.
B. Analysis and Conclusions
We find that Proposal 1 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In reaching this result, we reject the Agency's allegation that use of the term "drug abuse" renders the proposal inconsistent with the Executive Order. The Union's expressed intent, that the proposal requires the Agency to conduct its drug testing program in accordance with applicable laws, rules and regulations, signifies that the proposal is intended to incorporate the standards set forth in the Executive Order. Consequently, we find that the term "drug abuse" merely refers to the Agency's drug testing program and does not create a limitation that would restrict testing solely to the discovery of employees who "abuse" illegal drugs.
Additionally, we find that the proposal is identical to proposals previously found negotiable by the Authority in American Federation of Government Employees, AFL-CIO, Local 3457 and U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana, 39 FLRA 1276 (1991) (Minerals Management Service), petition for review filed sub nom. U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, No. 91-1218 (D.C. Cir. May 10, 1991) and American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068 (1990) (Proposal 1) (Member Talkin dissenting as to other matters) (Department of Education), petition for review filed sub nom. U.S. Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991), decision on reconsideration, 39 FLRA 1241 (1991). In those decisions, we found that the proposals constituted negotiable appropriate arrangements under section 7106(b)(3) of the Statute. For the reasons more fully discussed in Department of Education, we find this proposal is also negotiable as an appropriate arrangement.
In reaching this result, we reject the Agency's contention that the proposal cannot be considered an appropriate arrangement because the Union failed to support such a finding. As we noted in Minerals Management Service, 39 FLRA at 1278, our statutory obligations require that we apply the determination reached in Department of Education to this case, because to do otherwise would lead to anomalous and conflicting results on identical proposals.
III. Proposal 2B
Prior to deciding to test an employee for reasonable, articulable suspicion, the supervisor will document his/her suspicions and have them approved in writing by the next higher level of supervision. [Only the underlined portion was declared nonnegotiable.(4)]
A. Positions of the Parties
The Agency argues that this proposal is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Specifically, the Agency asserts that the proposal would require it to assign to a supervisor the duty of documenting his or her suspicions and to assign to the next higher level of management the task of approving the supervisor's suspicions, in writing. The Agency also states that the proposal is tied to and dependent on Proposal 2A, which would have precluded random testing and which the Agency contends is, therefore, inconsistent with the Executive Order and with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.(5) Finally, the Agency asserts that the Union has not demonstrated that Proposal 2B is intended as an appropriate arrangement under section 7106(b)(3) of the Statute.
The Union argues that Proposal 2B is independent of Proposal 2A. It asserts that the proposal applies in those instances where a supervisor has an articulable suspicion that an employee is using illegal drugs. The Union also asserts that the proposal does not preclude the Agency from "obtaining confirmation or referring the matter to other segments of its organization such as those charged with internal security." Petition for Review at 3.
B. Analysis and Conclusions
We find that the proposal is negotiable. Initially, we reject the Agency's contention that the proposal must be considered in conjunction with Proposal 2A and that it suffers from the same deficiencies because it would preclude random testing. Nothing in the language of Proposal 2B or the Union's stated intent warrants the conclusion that the Agency would be prevented from engaging in random drug testing. The language clearly refers only to drug testing on the basis of reasonable, articulable suspicion, and the Union expressly states that Proposal 2B is intended to operate independent of Proposal 2A. Consequently, we need not address the Agency's contentions that are based on a misapprehension of the proposal. Instead, we will address only the Agency's assertion that the proposal interferes with the right to assign work.
As noted, the Agency's claim is based on the proposal's requirements that the supervisor perform the task of documenting his or her suspicions prior to deciding to test an employee based on a reasonable, articulable suspicion of drug use, and that the next higher level of management approve the supervisor's suspicions, in writing. In American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187 (1991) (Merchant Marine Academy), we found that proposals that are procedural in nature but entail some assignment of work to agency personnel do not necessarily directly interfere with the exercise of management's right to assign work. We reach the same conclusion here. Proposal 2B simply requires a supervisor to take the procedural step of documenting the basis for that supervisor's suspicions and for a higher level of management to approve the supervisor's suspicions. We note that the obligation to substantiate the basis for reasonable suspicion testing is consistent with the requirement contained in FPM Letter 792-19 that "[w]here testing is conducted based on reasonable suspicion, each agency should promptly detail in writing the circumstances which formed the basis of its determination that reasonable suspicion exists to warrant the testing." 54 Fed. Reg. 14026. Under these circumstances, and as no other basis exists for finding that the proposal is inconsistent with management's right to assign work, we find that the proposal does not directly interfere with that right.
IV. Proposal 2C (6)
Prior to the initiation of a testing program, the agency shall send out notices to designated sensitive employees concerning the initiation of testing. [1] An employee who believes that his/her position was erroneously designated as sensitive shall be entitled to file a grievance of [sic] this determination. [2] Such grievance shall be initiated at the final step prior to invocation of arbitration. [3] Arbitration may thereafter be invoked according to the procedure of the Article. [4] The employee will not be tested until his/her status as a sensitive employee is resolved. [Only the underlined portions are in dispute.]
A. Positions of the Parties
The Agency argues that the proposal is nonnegotiable because it: (1) directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute; (2) contravenes Executive Order 12564; and (3) is inconsistent with the Agency's drug testing plan, entitled Drug Free Workplace Policy and Procedures (the Plan), for which there is a compelling need.
Specifically with regard to its first contention, the Agency asserts that the designation of specific positions as "sensitive" is critical to its internal security practices. The Agency notes that section 7(d) of the Executive Order defines the parameters of sensitive positions and that the Agency has identified other sensitive positions as being related to the Agency's mission. The Agency argues that the effect of the proposal would be to permit an arbitrator to decide whether a particular position is sensitive, thus negating the Agency's right to determine its internal security practices. The Agency also asserts that the proposal's interference with management's right to determine its internal security practices is excessive and, consequently, that the proposal does not constitute an appropriate arrangement. The Agency further notes that employees have an administrative procedure, set forth in the Agency's Plan, for contesting the designation as a sensitive employee, so that "the balance weighs in favor of management." Statement of Position at 16.
The Agency also argues that the last sentence of the proposal, which would preclude testing until the grievance over the status of an employee's position is resolved, directly and excessively interferes with management's right to determine its internal security practices. The Agency asserts that a user of illegal drugs could escape detection by filing a grievance and continuing to use illegal drugs while the grievance is pending and, thus, have "virtual immunity from testing." Id.
With regard to its assertion that the proposal contravenes Executive Order 12564, the Agency argues that a decision as to whether a particular position is to be designated as a sensitive position is specifically and exclusively determined by the Agency head in accordance with section 7 of the Executive Order and is not subject to review under a negotiated grievance/arbitration procedure. The Agency further argues that because the designation of a position as sensitive is specifically provided for by law, namely, the Executive Order, such designations are outside the duty to bargain under section 7103(a)(14)(C) of the Statute.
Finally, the Agency asserts that the proposal is inconsistent with the Agency's Plan, for which there is a compelling need under section 7117(a)(1) and (2) of the Statute and section 2424.11 of the Authority's Rules and Regulations. The Agency states that section I.7 of the Plan provides for an administrative appeal over the designation of an employee's position as sensitive that can be filed with "the designated official who has authority to remove the employee from the TDP [Testing Designated Position] list." Id. at 19. The Agency states that the designated official is required to review the appeal and render a final decision which, by the terms of section I.7, is not subject to further administrative review. The Agency asserts that there is a compelling need for this section of the Plan because it is essential to the exercise of the Agency's internal security functions and, thus, is consistent with the requirements of an effective and efficient government. The Agency further supports its assertion of compelling need on the basis that section I.7 implements a nondiscretionary mandate to the Agency under law or outside authority, namely, the Executive Order, which vests in the Agency head the sole and exclusive right to designate sensitive positions.
The Union states that the proposal is intended to include within the scope of the negotiated grievance procedure "the subject of inclusion in sensitive positions[.]" Petition for Review at 3. To the extent the grievance would be initiated at the final step of the grievance procedure and authorize a stay of testing until the dispute is resolved through arbitration, the Union asserts that the proposal sets forth "a special procedure in grievances over the correctness of identifying an employee as occupying a sensitive position[.]" Id. In its supplemental brief, the Union argues that the importance of having a proper sensitive position designation was underscored by the decision in American Federation of Government Employees v. Cavazos, 721 F. Supp. 1361 (D.D.C. 1989), in which the court identified the various repercussions that would flow from employee drug usage. Specifically, the court noted that, under Executive Order 12564, first time drug users who are not in sensitive positions are to be offered counseling and rehabilitation while employees in sensitive positions are to be immediately removed from their jobs. Given the possibility of removal, the proper designation of an employee is crucial, according to the Union. Finally, the Union states that nothing in Proposal 2C would conflict with section 7(d) of the Executive Order.
B. Analysis and Conclusions
The first three sentences of the proposal that are in dispute are negotiable. The fourth sentence, however, directly and excessively interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, and is nonnegotiable.
1. The First Three Disputed Sentences
These sentences would allow an employee who believes that his or her position has been incorrectly designated as sensitive to grieve that determination at the final step of the negotiated grievance procedure and, thereafter, to invoke arbitration. In National Federation of Federal Employees, Council of GSA Locals and General Services Administration, 41 FLRA 728, 739-51 (1991) (GSA), the Authority was presented with a similar proposal which we found constituted a negotiable appropriate arrangement. In GSA, the proposal essentially sought to enable employees to challenge, through the negotiated grievance procedure, the agency's compliance with its own regulation designating positions that were subject to random drug testing. In finding the proposal negotiable, we rejected the agency's contention that allowing an arbitrator to substitute his or her judgment for that of management in designating a position for testing rendered the proposal nonnegotiable. We found, instead, quoting American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 528 (1991), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 91-4525 (5th Cir. June 25, 1991), that "[a]n 'assertion that an arbitrator's judgment may be substituted for its own is not a basis for finding a proposal to be nonnegotiable.'" 41 FLRA at 744. This finding is equally applicable here. Therefore, we reject the Agency's contention that the proposal contravenes the Executive Order, which it claims vests sole and exclusive jurisdiction to designate sensitive positions in the Agency head. For the same reason, we reject the Agency's internal security argument that is predicated on the Agency's view that an arbitrator may not negate the Agency's designation of sensitive positions.
Also with respect to the Agency's internal security argument, we note that in GSA, we addressed an argument that the proposal directly interfered with management's right to determine its internal security practices under section 7106(a)(1). We found it unnecessary to decide that issue because even if there were a direct interference with that right, the proposal would be negotiable as an appropriate arrangement. This finding was guided by our earlier decision in Department of Education, 38 FLRA at 1074, in which we addressed a proposal that required the agency to establish and administer its drug testing programs in accordance with applicable laws, rules, and regulations, among other things, and that would have allowed challenges to the agency's actions through the grievance and arbitration procedure. In Department of Education, we concluded that although the proposal directly interfered with the agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, the proposal was negotiable as an appropriate arrangement because an agency's implementation of a drug testing program could adversely affect employees and, to the extent that the existence of applicable laws, rules, and regulations already served to limit agency action, an agency's interest in being able to act without regard to such restrictions was negligible. In GSA, we concluded that the significant benefits employees would gain by being able to challenge the agency's compliance with its procedure for designating the positions subject to drug testing outweighed the minimal adverse impact on the agency's exercise of its management right, especially in view of the agency's interest in ensuring that its designations were not based on inappropriate criteria.
In this case, we also find it unnecessary to decide whether the designation of sensitive positions constitutes an exercise of management's right to determine its internal security practices because we nonetheless find that the proposal is a negotiable appropriate arrangement for the reasons set forth in GSA. As we found in GSA, the ability to challenge the designation of positions subject to drug testing instills confidence in the drug-testing program as a whole and enhances confidence in an agency's program. This is particularly so given the effect of drug testing programs on employees' personal privacy and where the repercussions flowing from confirmed drug use may differ for employees occupying sensitive positions and those occupying non-sensitive positions. See, for example, section 5 of Executive Order 12564. In contrast, we view the impact on the Agency's right to determine its internal security practices as minimal. We have already rejected the Agency's argument that review of a position designation by an arbitrator renders the proposal nonnegotiable because we do not view arbitral review as excessively interfering with management's right. We also find without merit the Agency's argument that the availability of an administrative appeal procedure warrants a finding that the proposal excessively interferes with management's right. The existence of such a procedure does not outweigh the benefits to employees that use of the negotiated grievance procedure, with impartial third-party review, affords. Consequently, on balance, we conclude that the benefits inuring to employees under the proposal outweigh the burden imposed on the Agency's exercise of its management right.
Finally, we reject the Agency's assertion that there is a compelling need for the Agency's Plan so as to bar negotiations over the proposal. In support of its assertion, the Agency states that the Executive Order requires the Agency head to designate which positions are sensitive, that section I.7 of the Agency's Plan establishes a procedure for appealing the designation, and that the designating official renders a final decision with no further right of appeal.(7) The Agency argues that section I.7 of the Plan meets two of the illustrative criteria for establishing compelling need under section 2424.11 of the Authority's Rules and Regulations because: (1) section I.7 is essential to the exercise of the Agency's functions in a manner that is consistent with an effective and efficient government under section 2424.11(a); and (2) the section implements an essentially nondiscretionary mandate under law or outside authority, namely Executive Order 12564, under section 2424.11(c).
We find that the Agency has failed to establish a compelling need for section I.7 of the Plan so as to bar negotiations over the proposal. Both arguments made by the Agency are tied to its view that the designation of positions as sensitive for purposes of drug testing can be made only by the Agency and is not subject to review outside the Agency. Previously, we have rejected that argument in the context of management's right to determine its internal security practices. We do so here as well. The Agency has not established that vesting final decision-making of an appeal in the designating official without further administrative review is essential, as opposed to simply helpful or desirable, and the Agency has not shown in what manner use solely of its own appeal mechanism leads to an effective and efficient government. Compare American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 446 (1991), petition for review filed sub nom. U.S. Department of Justice, Justice Management Division v. FLRA, No. 91-1582 (D.C. Cir. Nov. 26, 1991) (agency regulation setting forth 15-day appeal period for an employee to appeal designation of a position as a testing designated position not a bar to negotiations as regulation not shown to be essential, as required under section 2424.11(a), and arguments concerning efficiency and effectiveness either not shown or were speculative). Similarly, the Agency has not established that its Plan implements an essentially nondiscretionary mandate under Executive Order 12564. While section 7 of the Executive Order provides that the head of an agency may designate various positions as sensitive positions, the Executive Order does not preclude review of such designations in the manner specified in the Union's proposal.
2. The Fourth Disputed Sentence
In contrast to our findings above, we find that the fourth disputed sentence of the proposal would directly and excessively interfere with the Agency's right to determine its internal security practices.
The express wording of the fourth sentence would preclude the testing of an employee who challenges his or her status as a sensitive employee until the employee's status is resolved. Stated otherwise, the last sentence of the proposal would prevent the Agency from testing the employee while the employee's challenge through the grievance/arbitration procedure is pending.
It is by now well established that drug testing of designated employees constitutes an exercise of management's right to determine its internal security practices. See, for example, 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, 1056 (Rock Island I), remanded as to other matters sub nom. Department of the Army, U.S. Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988), 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) (Aberdeen Proving Ground), decision on remand, 35 FLRA 936 (1990). Additionally, section 3(a) of Executive Order 12564 mandates the establishment of agency drug testing programs to test for the illegal use of drugs by employees occupying sensitive positions.
This portion of the proposal, although procedural in form, would have a substantial effect on the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. Compare American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45, 59 (1988) (Tooele Army Depot) (proposal that would have prevented the agency from subjecting employees to drug testing until all union or unit employee challenges to Executive Order 12564 and various regulations were resolved directly and excessively interfered with the agency's right to determine its internal security practices). Thus, the fourth sentence of the instant proposal would immunize employees, all of whom had been designated as having sensitive status, from testing during the pendency of an appeal. In our view, the ability to test employees in sensitive positions is of paramount concern to an agency's internal security. This view is compelled by section 3(a) of Executive Order 12564, which mandates the establishment of drug testing programs to detect illegal drug use by employees in sensitive positions and also by the very nature of sensitive positions and the duties performed by employees occupying such positions. The clear import of a scheme to test employees in sensitive positions is to detect illegal drug use among those whose illegal drug use may endanger the public health or safety or the national security. See section 5(c) of Executive Order 12564.
The fourth sentence of the proposal is distinguishable from proposals that simply require the suspension of actions pending resolution of an appeal through a negotiated grievance and arbitration procedure. For example, in American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979) (Dix-McGuire), enf'd sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom., AFGE v. FLRA, 455 U.S. 945 (1982), which was distinguished in Tooele Army Depot, the Authority found negotiable a proposal that required the stay of disciplinary actions until completion of an appeal through the negotiated grievance and arbitration procedure. However, such proposals are not categorically negotiable. Subsequent to Dix-McGuire, the Authority found that where an agency would be prevented from taking disciplinary actions that are prescribed by law, a proposal to stay such disciplinary actions directly and excessively interfered with the agency's right to discipline. See American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 320 (1990), enf'd as to other matters sub nom. U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, No. 91-1031 (D.C. Cir. Dec. 3, 1991). Significantly, the proposal here would place an absolute prohibition on the Agency's ability to test employees in sensitive positions during the appeal process. Nothing in the plain language of the proposal itself or the Union's explanation of the proposal would permit the Agency to make any exception to the prohibition.
We also find that the fourth sentence of the proposal is distinguishable from a proposal seeking to delay the implementation of drug testing pending completion of negotiations. International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1504-06 (1991) (Bureau of Reclamation). In Bureau of Reclamation, we found that the proposal would only require the agency to meet its bargaining obligation under the Statute and would not prevent the agency from exercising its rights under the Statute. We explained that the proposal would not prevent the agency from implementing changes where those changes were consistent with the necessary functioning of the agency or once the matters before the Federal Mediation and Conciliation Service and/or the Federal Service Impasses Panel were resolved. Thus, while recognizing that delay in the implementation of an agency's drug testing program is negotiable, we noted that the agency would retain flexibility in exercising its rights under the Statute. Here, by contrast, the Agency's ability to test employees in sensitive positions would be completely proscribed during the pendency of an appeal.
We also find that the proposal would excessively interfere with the exercise of management's right to determine its internal security practices. Thus, while the proposal would constitute a significant benefit to employees, the benefit would be obtained at the cost of protecting the security of the Agency's property, personnel, and operations from the effects of possible illegal drug use by employees occupying sensitive positions. Thus, the burden imposed on the Agency by its inability to test those employees until a challenge is resolved could result in a substantially increased risk to the Agency's security and, on balance, outweighs the benefit to employees. Consequently, we find that Proposal 2C is not an appropriate arrangement under section 7106(b)(3) of the Statute because it would excessively interfere with management's right to determine its internal security practices.
V. Proposal 2D
If the urine sample is to be provided off-site, the employer must provide transportation to the site. Travel to and from the laboratory will be on official time. Employees will be given a minimum of two hours notice before reporting to the bus or other mode of transportation. [Only the underlined portions are in dispute.]
A. Positions of the Parties
The Agency asserts that the first sentence of the proposal requires the Agency to provide a bus or other Government vehicle to transport an employee to an off-site drug testing laboratory. The Agency contends that the first sentence is outside the duty to bargain under section 7106(b)(1) of the Statute because it would preclude the Agency from establishing any other method or means of transporting employees to an off-site laboratory. The Agency cites National Federation of Federal Employees, Local 2052 and Department of the Interior, Bureau of Land Management, Boise District Office, 30 FLRA 797, 831-32 (1987) (Bureau of Land Management), to support its contention that a proposal requiring an agency to use "a particular mode of transportation is nonnegotiable under section 7106(b)(1) because it precludes the agency from choosing the particular mode of transportation . . . to be used in accomplishing its work." Statement of Position at 22. The Agency argues that an arbitrator could interpret this proposal as requiring the Agency "to provide actual vehicles[]" and, thus, the proposal interferes with management's right to determine the technology, methods or means of performing its work under section 7106(b)(1). Id. at 23 (emphasis in original).
The Agency also contends that the third sentence of the proposal, requiring a minimum of 2 hours notice to employees before they report to vehicles for transportation to an off-site test laboratory, interferes with management's right to determine the Agency's internal security practices under section 7106(a)(1) of the Statute. The Agency asserts that the minimum notice period required by the proposal could result in more than 2 hours' notice being provided and that the proposal "invites the use of synthetic urines, carefully warmed to normal body temperature during the required two hour hiatus, thereby increasing the risk of false negative results." Id. The Agency contends that the effect of this sentence of the proposal is to "frustrate the drug testing program's purpose of identifying illegal drug users . . ." and, consequently, that the third sentence directly interferes with management's right to determine its internal security practices under section 7106(a)(1). Id. at 24. In support, the Agency relies on the Authority's decision in National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground Installation Support Activity, 31 FLRA 241 (1988) (Aberdeen I) (Proposal 1), remanded as to other matters sub nom. Department of the 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) (Aberdeen II), rev'd in part and remanded as to other matters sub nom. Aberdeen Proving Ground, decision on remand, 35 FLRA 926 (1990).
The Agency further argues that the third sentence of the proposal contravenes Part II, section .8E of the Agency's Plan, for which there is a compelling need. The Agency asserts that the Plan provides for either no advance notice or a maximum of 2 hours' notice before a scheduled test in order to avoid giving employees time to alter their specimens. The Agency argues that for a drug test to be effective, and to achieve the goal of identifying illegal drug users, employees must report for testing without any notice, or within 2 hours, as provided by the Plan. The Agency argues that its Plan is essential to accomplishing the Agency's mission of achieving a drug-free workplace in a manner that is consistent with the requirements of an effective and efficient government. The Agency also argues that its Plan implements a congressional mandate to achieve a drug-free workplace in accordance with Executive Order 12564. The Agency contends that the legislative history of section 503 of the Supplemental Appropriations Act of 1987, Pub. L. No. 100-71, 101 Stat. 468 (1987), codified at 5 U.S.C. § 7301 note, indicates a congressional desire to achieve uniformity in drug testing plans. The Agency asserts that the proposal's minimum 2 hours' notice would thwart the congressional intent "that all employees of the various agencies and . . . of components of an agency, would follow the same drug testing regulations in significant respects." Statement of Position at 27. The Agency argues that even if they were represented by different unions, employees of a particular agency would be expected to follow uniform drug testing rules. The Agency states that if drug testing is not uniformly followed, the purpose of the drug testing program could be frustrated.
Finally, the Agency asserts that the proposal's notice requirement does not constitute an appropriate arrangement because it would excessively interfere with management's right to determine its internal security practices under section 7106(a)(1). The Agency contends that the notice requirement is not "concerned with adverse impacts on employees because the areas of impact, if any, are substantially within the employee's control." Id. at 29. Regarding any alleged adverse impact, the Agency states that it is unlikely that management would schedule off-site drug tests to make employees late in arriving home but, rather, the Agency contends that even if this should occur, an employee could make the necessary phone calls from the test site to inform "others of the possibility of arriving home late." Id.
The Union merely states that the proposal "has its facial meaning." Petition for Review at 3.
B. Analysis and Conclusions
1. The First Sentence Is a Negotiable Procedure
Proposal 2D is identical to a proposal that was before the Authority in a case involving the same Agency headquarters and Agency component as are involved in this case, but involving a different labor organization. National Federation of Federal Employees, Local 2015 and U.S. Department of the Interior, National Park Service, 41 FLRA 1158 (1991) (National Park Service) (Proposal 2). We addressed the same arguments that are raised in this case and, for the reasons more fully set forth therein, we reach the same conclusions with regard to the negotiability of Proposal 2D.
More specifically, we find that the first sentence of Proposal 2D does not concern a matter falling within section 7106(b)(1) of the Statute. Rather, this sentence constitutes a negotiable procedure. As we found in National Park Service, providing transportation for employees who are required by the Agency to travel from their regular work site to an off-site laboratory in connection with a drug test does not involve the technology, methods or means of performing work under section 7106(b)(1) and is not integrally related to the manner in which the Agency's mission is accomplished. Like the proposal in National Park Service, Proposal 2D is also distinguishable from Bureau of Land Management, in which the Authority found nonnegotiable a proposal that addressed the use of privately owned vehicles for Government business, because Proposal 2D is not directly and integrally related to the nature of the Agency's business and the accomplishment of the Agency's mission. Consequently, we conclude that the first sentence of the proposal constitutes a negotiable procedure.
2. The Third Sentence is Nonnegotiable
We find that the third sentence of Proposal 2D is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Moreover, the third sentence does not constitute a negotiable appropriate arrangement. (Member Talkin's dissenting opinion is set forth at note 8, below.)
The third sentence of Proposal 2D requires that employees be given a minimum of 2 hours' notice prior to reporting for transportation to an off-site laboratory. As we indicated in National Park Service, relying on our earlier decision in American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439, 1440-45 (1990) (Member Talkin dissenting, in part) (Sierra Army Depot), proposals requiring that employees be given 2 hours' advance notice that they will be tested for illegal drug use directly interfere with an agency's right to determine its internal security practices by interfering with the agency's ability to conduct unannounced random drug tests of employees in sensitive positions. As the third sentence of Proposal 2D would require, at a minimum, that employees be given 2 hours' notice prior to reporting for transportation to the test site, it similarly constitutes an impermissible interference with management's right to determine its internal security practices.
Additionally, the third sentence of the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) because it would excessively interfere with the exercise of management's right to determine its internal security practices. As we explained in National Park Service, the Agency has the right, as part of its internal security practices, to guard against any reduced effectiveness of its drug testing program that might result from the requirement of a minimum 2 hours' notice. The Union makes no arguments that a minimum 2-hour notice requirement is designed to ameliorate adverse effects on unit employees and, in our view, any benefits that conceivably could inure to employees are outweighed by the burden imposed on the exercise of management's right. Consequently, we find that the third sentence of the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.(8) In view of this result, we will not address the Agency's remaining argument involving compelling need for an Agency regulation.
VI. Proposal 4 (9)
Sixty (60) days prior to implementation of any drug testing program, a general notice will be issued to each employee. Specific notice will be issued thirty (30) days prior to actual testing of employees in designated positions.
The agency will provide briefings for all employees identified as occupying sensitive positions at least fourteen (14) days prior to initiation of drug testing. The union shall be notified of these briefings and shall be entitled to attend, and shall be entitled to speak at these briefings.
In the event drug testing is required under Section 2.A., twenty-four (24) hours prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
A. Whether the testing is mandatory or voluntary under this agreement;
B. The reasons for ordering the drug testing;
C. How the employee was selected for the test;
D. The frequency or intervals [with] which they will be tested;
E. The consequences of a positive result or refusal to cooperate, including adverse action;
* * * * *
G. The location of drug abuse counseling and referral services available through the Employee Assistance Program to which he/she can voluntarily submit without reprisal;
H. The right to union representation concerning the matter, including but not limited to any meetings, or preparation for meeting, before, during or after the test is conducted[.] [Only the underlined portions are in dispute.]
A. Positions of the Parties
The Agency argues that Proposal 4 is nonnegotiable because particular portions of this proposal: (1) directly and excessively interfere with management's right to determine its internal security practices; (2) interfere with its right to assign work under section 7106(a)(2)(B) of the Statute; (3) interfere with its right to discipline under section 7106(a)(2)(A) of the Statute; and (4) contravene sections 2.2(d) and 2.3 of the Guidelines.
Specifically, the Agency argues that the second sentence of the first introductory paragraph is nonnegotiable because the term "actual testing" requires specific notice to employees 30 days before they will be tested for illegal drugs. The Agency argues that the proposal could be interpreted to give employees 30 days' notice of the date on which they will be tested, which would allow the employees to purge their systems of illegal drugs and frustrate the drug testing program. The Agency thus argues that the proposal interferes with the right to determine internal security practices under section 7106(a)(1) of the Statute. The Agency also argues that this portion of the proposal is similar to a proposal in Aberdeen I, 31 FLRA at 243, in which the Authority held that a 14-day notice period, if interpreted as providing employees with enough time to purge their bodies of drugs, would negate the purpose of the drug testing program and, thereby, directly interfere with management's right to determine its internal security practices. Alternatively, the Agency asserts that the petition for review of this proposal should be dismissed because the Union has failed to provide a record upon which the Authority can determine the meaning and, therefore, the negotiability of this proposal.
As to the second introductory paragraph of this proposal, the Agency argues that it also is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency further argues that the briefings contemplated by this paragraph will require it to assign training duties to some employees who will then be "trainers" while other employees will have to be assigned duties as "trainees" to receive information during the briefings. Moreover, because all of these duties will have to be assigned during the employees' duty hours, the Agency asserts that the proposal requires it to provide training duties and responsibilities to all employees who participate in the briefings. The Agency states that the Authority previously has found similar proposals to be nonnegotiable as an interference with an agency's right to assign work, citing Bureau of Land Management, 30 FLRA at 825 (Proposal 16); American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force, HQ 90th Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130, 1138 (1988) (Provision 4).
The Agency further argues that the second paragraph does not constitute a negotiable appropriate arrangement because it would excessively interfere with management's right to assign work. The Agency argues that by requiring briefings, rather than providing written information, the proposal would create a substantial burden on management to assign training that would be "disproportionate to any benefit to be derived from such oral briefings." Statement of Position at 37 (footnote omitted). The Agency notes, in this connection, that informational booklets have already been provided to all employees. Finally, the Agency asserts that the imposition of the training requirement created by the second introductory paragraph potentially could lead to its imposition in the approximately 220 other collective bargaining units within the Department of the Interior that are dispersed across the United States. Consequently, the Agency argues that the requirement to provide training in this unit could impose an increased burden throughout the Agency.
The Agency asserts that the third introductory paragraph and subsections 4A-E and 4G-H are nonnegotiable because they directly interfere with management's right to determine its internal security practices under section 7106(a)(1). The Agency further argues that subsection 4G interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. More specifically in terms of its internal security argument, the Agency asserts that by requiring it to provide 24 hours' notice prior to actual testing, along with the specified information, this portion of the proposal could provide employees with enough time to purge their bodies of drugs and, thereby, frustrate the Agency's drug testing program. The Agency also argues that subsection 4D is nonnegotiable for the additional reason that it requires notice of the time interval between testings, which would allow an employee to continue to use illegal drugs with the knowledge that testing would not occur "until the end of the scheduled time interval." Id. at 39. The Agency argues that this subsection would also frustrate the purpose of drug testing, in direct interference with management's right to determine its internal security practices. The Agency argues that subsection 4H is also independently inconsistent with section 7106(a)(1) of the Statute because the requirement of providing Union representation at any meeting or preparation for meeting prior to or during testing would allow the employee to be notified of the time testing will occur and would permit the employee to purge his or her body of illegal drugs. The Agency also asserts that the presence of a Union representative during testing would impermissibly compromise the security of the testing process.
The Agency also maintains that subsection G of Proposal 4 interferes with management's right to discipline under section 7106(a)(2)(A) by allowing an employee to voluntarily submit to counseling or rehabilitation without reprisal. The Agency argues that this portion of the proposal has the effect of suspending any disciplinary action management might take while the employee is being rehabilitated or counseled.
Next, the Agency contends that subsection 4H is inconsistent with sections 2.2(d) and 2.3 of the Guidelines, which constitutes a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. The Agency states that section 2.2(d) of the Guidelines precludes unauthorized personnel from being present at the collection site when urine specimens are collected or stored, and that section 2.3 outlines the qualifications and responsibilities of laboratory personnel. The Agency argues that because a Union representative would be an unauthorized person within the meaning of the Guidelines, subsection H of Proposal 4 is inconsistent with the Guidelines. In its supplemental brief, the Agency also argues that because the collection of urine lacks the confrontational aspects of an investigatory interview, there is no right to Union representation under section 7114(a)(2)(B) of the Statute during the collection process.
Finally, the Agency asserts that the Union has not demonstrated that Proposal 4 constitutes either a negotiable procedure or an appropriate arrangement under sections 7106(b)(2) or 7106(b)(3) of the Statute. In this regard, the Agency argues that all the provisions of Proposal 4 directly interfere with management's right to determine its internal security practices.
The Union asserts that the introductory paragraphs and subsections A-E and G-H are intended to be procedures by which employees are notified of matters pertaining to the Agency's drug testing program, although the Union acknowledges that "the proposed language does require that the information identified be provided at the times specified." Petition for Review at 5. Finally, the Union states that the second sentence of the second introductory paragraph, relating to the Union's attendance at drug testing briefings, is intended as a procedure by which Union representatives will exercise their right to be present at and participate in such briefings.
B. Analysis and Conclusions
1. First Introductory Paragraph
Initially, we reject the Agency's contention that the petition for review as to this portion of the proposal must be dismissed because the Union has failed to establish a record on which the Authority can determine the meaning of the proposal. Based on the language of the proposal and the Union's stated intent, it is clear that this portion of the proposal concerns the timing of the specific notice to be provided to employees prior to testing. Given this meaning, however, we agree with the Agency that the first introductory paragraph directly and excessively interferes with management's right to determine its internal security practices. Moreover, contrary to the Union's position, this portion of the proposal does not constitute a negotiable procedure.
In Department of Education, 38 FLRA at 1084-92, we found that a proposal that provided specified information to employees 60 days in advance of their test date and which, therefore, could be interpreted as requiring the agency to notify employees 60 days in advance of a test directly interfered with the agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.(10) We noted that "[a] period of advance notice increases the risk that employees who are so disposed will be able to frustrate the purposes of the test. In short, advance notice is incompatible with the right to conduct random drug tests." Id. at 1085-86. The first introductory paragraph of Proposal 4 is subject to an even greater limitation than was present in Department of Education inasmuch as the Agency would be required to provide advance notice of the actual test, in addition to other information pertaining to the test. Therefore, as this portion of the proposal requires the Agency to provide notice 30 days prior to the date an employee will be tested, the proposal directly interferes with the Agency's right to determine its internal security under section 7106(a)(1) of the Statute.
Having found that this portion of the proposal directly interferes with the exercise of a management right, we further find that it does not constitute a negotiable procedure. It is well established that a proposal that directly interferes with a management right does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. See Department of Education, 38 FLRA at 1077.
Moreover, we find that the proposal would excessively interfere with the exercise of management's right. By imposing a 30-day advance notice requirement, the Agency would be prevented from testing an employee unless that requirement were met. Such a prohibition on the ability to conduct a drug test clearly is incompatible with the Agency's right to conduct its drug testing program and could result in the frustration of the purposes of drug testing. In our view, this burden imposed on the exercise of management's right outweighs the benefits that may accrue to employees from the specified advance notice. Therefore, the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
2. Second Introductory Paragraph
This portion of the proposal would require the Agency to provide briefings for all employees, notify the Union of those briefings, and allow the Union to attend and to speak at the briefings. The proposal is virtually identical to Proposal 1 in National Park Service, 41 FLRA at 1160-64, which we determined did not directly interfere with management's right to assign work and which was distinguishable from the Authority decisions now relied on by the Agency. For the reasons more fully set forth in National Park Service, and in the absence of any other basis on which to find the proposal nonnegotiable, we conclude that the second introductory paragraph is within the duty to bargain. In light of this finding, we need not address the Agency's contention that the proposal does not constitute a negotiable appropriate arrangement.
3. Third Introductory Paragraph and Subsections 4A-E and 4G-H
Initially, we note that this portion of Proposal 4 references Proposal 2A, which was withdrawn by the Union. Proposal 2A, as previously mentioned, would have limited drug testing to situations where there was a reasonable, articulable suspicion an employee was under the influence of illegal drugs or as a voluntary part of follow-up to counseling or rehabilitation. There has been no assertion by either party that this portion of the proposal cannot be interpreted independent of Proposal 2A and, in fact, the Agency responded to the merits of one subsection in its supplemental submission, despite its acknowledgment that the Union was withdrawing Proposal 2A. Under these circumstances, we will address the merits of this portion of Proposal 4.
In many respects, the proposal is virtually identical to Proposals 2-5, 7 and 8 in Department of the Interior, 37 FLRA at 1457-66. In that case, the proposal required the agency to provide specified information 24 hours prior to each drug test. We found that the proposals directly interfered with the agency's right to determine its internal security practices under section 7106(a)(1). We reach the same result here.
We note that this portion of Proposal 4 is not susceptible to the alternative interpretation we discussed in Department of Education, 38 FLRA at 1086-87. That proposal, as we stated earlier, provided that specified information be provided to employees 60 days in advance of their test date. Although we concluded that the proposal was nonnegotiable under section 7106(a)(1), we found that the proposal could also be interpreted as permitting the agency to provide the information at any time prior to a drug test, such as when employees reported to the test site. As such, we noted that a requirement to furnish certain specified information would be negotiable if the proposal were redrafted to reflect the alternative interpretation.
We decline to make such an alternative interpretation here because the Union clearly states that "the proposed language does require that the information identified be provided at the times specified." Petition for Review at 5. Therefore, the only viable interpretation of the proposal would require the Agency to notify employees of a drug test 24 hours prior to the test. For the same reasons we found the first introductory paragraph to directly and excessively interfere with the Agency's right to determine its internal security practices, we reach the same conclusion with regard to these portions of the proposal. In light of our conclusions, we need not address the Agency's additional contentions as to the negotiability of this portion of the proposal.
VII. Proposal 4F
1. Lists of medications/substances which could result in false positive tests will be provided by the employer to each employee on a quarterly basis and such list shall be attached to the twenty-four (24) hour notification given to each employee prior to each test.
2. Employees shall have the opportunity to declare any nonprescription medications/substances taken prior to testing which may bring about false positive results.
3. After any confirmed positive drug test, there will be an opportunity for them to submit supplemental documentation to support the legitimate use of a specific drug.
A. Positions of the Parties
The Agency argues that Proposal 4F interferes with management's right to determine its internal security practices under section 7106(a)(1); that subsection 1 also interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute; and that subsections 2 and 3 are inconsistent with the Guidelines.
Specifically, the Agency argues that the proposal directly interferes with management's right to determine its internal security practices to the extent it is intertwined with the requirement to furnish the requested information 24 hours prior to the actual testing of its employees. The Agency also asserts that, independently, subsection 1 directly interferes with the right to determine internal security practices because the requirement to provide a list of substances that could result in a false positive test would frustrate the purpose of the drug testing program by informing illegal drug users of substances they could "cite as justification for a positive test and thereby avoid any disciplinary consequences." Statement of Position at 46. On the same basis, the Agency argues that subsection 1 interferes with management's right to discipline.
The Agency also asserts that subsections 2 and 3 are nonnegotiable because they require the Agency to consider the use of nonprescription items and supplemental documentation, "which is not strictly medical[.]" Id. The Agency asserts that neither type of evidence is reliable enough to explain a false positive result. Consequently, the Agency argues that because the two subsections preclude management from making a determination as to the acceptability of such evidence, these subsections directly and excessively interfere with management's right to determine its internal security practices. Finally, the Agency asserts that these subsections are inconsistent with section 2.7(b) of the Guidelines, which requires the Medical Review Officer (MRO) to examine all "'medical records'" when a confirmed positive test could have resulted from "'legally prescribed medication.'" Id. at 47. The Agency notes that under Executive Order 12564, the justifiable use of prescription and other authorized drugs may be taken into account by the MRO. However, the Agency states that the type of evidence specified in the proposal does not fall into the category of prescription and other authorized drugs.
The Union asserts that Proposal 4F is a negotiable procedure by which the Agency's drug testing program can be conducted. The Union also asserts that the proposal provides a procedure for management and employees to be "informed about the many legally-used chemically-comprised materials that produce erroneous drug testing results, and by which such erroneous results can be explained by the affected employee(s)." Petition for Review at 5.
B. Analysis and Conclusions
We find that a portion of subsection 1 is negotiable, and the remaining portion is nonnegotiable because it directly and excessively interferes with management's right to determine its internal security practices. We also find subsections 2 and 3 to be negotiable procedures.
Subsection 1 requires the Agency: (1) to provide its employees, on a quarterly basis, with a list of medications or substances that can produce false positive test results; and (2) to attach such lists to the 24-hour notice each employee is to be given before testing is conducted. We find that the reference to the 24-hour notification is an apparent reference to the notice requirement set forth in the third introductory paragraph of Proposal 4, discussed above. For the same reasons that that portion of the proposal directly and excessively interfered with the Agency's right to determine its internal security practices, we find that requiring the Agency to provide the lists to employees 24 hours prior to a drug test also directly and excessively interferes with the Agency's right to determine its internal security practices.
However, the portion of subsection 1 merely requiring the Agency to provide a list of medications and substances on a quarterly basis does not interfere with the exercise of that management right, as it merely requires the transmittal of information to employees. We also reject the Agency's assertion that providing this information would impermissibly interfere with the Agency's right to discipline. We find nothing in the proposal itself or the Union's explanation that would prevent the Agency from taking disciplinary action, where such action is appropriate.
Subsection 2 provides employees with the opportunity to inform management before their drug tests that they are taking nonprescription medications or substances which may cause a false positive result on their tests. Subsection 3 operates after a drug test has been confirmed positive and allows an employee to submit supplemental documentation to support the legitimate use of a drug.
The Authority previously has found that proposals requiring an agency to treat employee-supplied documentation as presumptively valid are consistent with the Guidelines and are negotiable procedures. See National Park Service, 41 FLRA at 1193-94 and National Federation of Federal Employees, Local 178 and U.S. Army, Aberdeen Proving Ground Installation Support Activity, 31 FLRA 226, 233-35 (1988), decision on remand, 33 FLRA 521 (1988), aff'd sub nom. Aberdeen Proving Ground. Subsection 2 would simply allow employees to provide information concerning their use of any nonprescription medication or substances taken prior to a test that might lead to a false positive test result. Similarly, subsection 3 would allow an employee to submit supplemental documentation concerning the legitimate use of a specific drug following a confirmed positive result. We find that these subsections are not inconsistent with the Guidelines. Moreover, subsections 2 and 3 do not directly interfere with management's right to determine its internal security practices, as alleged by the Agency. Even assuming the Agency has the right to determine what type of information could be provided by an employee, which we specifically do not find here, subsections 2 and 3 do not prevent the Agency from assessing the reliability of the information provided. In fact, the proposal does not require the Agency to treat the information or documentation supplied by an employee as presumptively valid. Consequently, we find that subsections 2 and 3 of Proposal 4F constitute negotiable procedures under section 7106(b)(2) of the Statute.
VIII. Proposal 4I
Original sample will be immediately split upon collection. The agency will retain one part of the split sample in an appropriate, refrigerated, secure storage facility. If any employee registers a confirmed positive test result, the employee has the right to have a lab of his/her choice for retesting at agency expense. [Only the underlined portions of the proposal are in dispute.(11)]
A. Positions of the Parties
The Agency argues that this proposal conflicts with Executive Order 12564 and the Guidelines and also directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Moreover, the Agency asserts that the third sentence of this proposal interferes with its right to contract out under section 7106(a)(2)(B) of the Statute. Finally, the Agency asserts that this proposal is nonnegotiable because it does not concern working conditions under section 7103(a)(14) of the Statute.
Specifically, the Agency argues that, in the absence of a statement of intent from the Union as to the meaning of the proposal, it could be interpreted as requiring that a "split sample" be tested and the result substituted for the result obtained from testing the official sample collected in accordance with the Guidelines. The Agency asserts that permitting a split sample to be presented to the MRO in order to refute a positive result was specifically rejected in the Guidelines, which expressly "reject allowing the tested employee from presenting to the [MRO] a split sample or private sample that does not fully comply with [the] Guidelines." Statement of Position at 49. Additionally, the Agency claims that the Guidelines contemplate only one specimen, which must be collected and safeguarded in accordance with the Guidelines' strict chain-of-custody procedures, while the proposal requires two separate samples and confirmatory tests. The Agency also asserts that the proposal is inconsistent with section 5(e) of Executive Order 12564, which prohibits the use of a split sample, by requiring that test results be confirmed by analysis from the same sample. In its supplemental brief, the Agency adds that the proposal in this case is similar to one found nonnegotiable in Aberdeen Proving Ground, 890 F.2d at 471-73, in which the court held that the use of a split sample to refute the MRO's evaluation of a positive test result is inconsistent with the Guidelines. Consequently, the Agency argues that if the purpose of Proposal 4I is to allow an employee to refute the MRO's evaluation of a positive test result, the proposal is likewise inconsistent with the Guidelines.
The Agency also argues that the proposal directly and excessively interferes with its right to determine its internal security practices under section 7106(a)(1) by requiring the Agency "to use the retained second sample, at the option of the employee, as the official sample." Statement of Position at 51. The Agency asserts that the proposal would require the Agency to provide procedures that vary from the Guidelines, thereby imposing an additional burden on the collection site person and creating a significant risk of error and confusion as to which sample is the official sample.
The Agency contends that the proposal violates the Guidelines because the proposal permits an employee to select a laboratory for the second test rather than having the sample tested by a certified laboratory as required by the Guidelines. As it argued previously, the Agency claims that the Guidelines establish certain procedures and that a second sample not processed in accordance with those procedures would be inconsistent with the Guidelines. The Agency notes that the Authority has found nonnegotiable a proposal allowing an employee to choose a laboratory on the basis that such a proposal could prevent an agency from conducting a confirmatory test. International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269 (1988). Relying on the same Authority precedent, the Agency also contends that allowing an employee to choose a laboratory interferes with the Agency's right to contract out under section 7106(a)(2)(B) of the Statute.
Finally, the Agency argues that the proposal is nonnegotiable because it does not relate to working conditions under section 7103(a)(14) of the Statute. The Agency bases this argument on its view that the retention of a second urine sample for the employee's use and its testing at a laboratory chosen by the employee are not required under the Guidelines or the Agency's drug testing program. The Agency argues that neither the MRO nor an employee's supervisor may consider the results of a private test, not obtained on the same official sample, for any purpose under the Guidelines or even to discipline an employee. The Agency states that it follows that the private testing contemplated by the proposal is not a condition of employment. The Agency also requests the Authority to reconsider its decision in Aberdeen II, 33 FLRA 702, regarding the use of a retained sample.
The Union simply states that the proposal "has its facial meaning." Petition for Review at 6.
B. Analysis and Conclusions
We find that the record is not sufficient for us to make a negotiability determination on Proposal 4I. Therefore, we will dismiss the petition for review as to this proposal.
Proposal 4I provides that the employee's original sample will be split after its collection. It further provides that the Agency will retain one portion in an appropriate, refrigerated secure storage facility and that if there is a confirmed positive test result, the employee will have the right to have a retest at a laboratory of the employee's choosing.
In both Bureau of Reclamation, 39 FLRA at 1518-22 and Department of Education, 38 FLRA 1068, we dismissed petitions for review of proposals that were similar to Proposal 4I, on the basis that the records were not sufficient for us to make a negotiability determination. More particularly, we found, as is the case here, that the records were silent as to the purpose of the second test, to whom the results of the second test would be given, and whether the results would be reported to someone other than the MRO to assess the medical significance of the results. We noted that under the court's ruling in Aberdeen Proving Ground, 890 F.2d at 471-73, information concerning who would receive the results of a split sample and whether those results would be used by someone other than the MRO were necessary factors in determining the negotiability of such proposals. Because this information is absent from the record before us, and consistent with our decision in Bureau of Reclamation, we are unable to make a negotiability determination concerning this proposal. Accordingly, we will dismiss the Union's petition for review as to Proposal 4I.
IX. Proposal 4J
If an employee is required to submit a specimen for drug testing, they will be told exactly what drug(s) or class of drugs they are being tested for. The employer will allow up to four (4) hours of administrative leave to allow the employee to have the specimen collected for certified, independent processing. [Only the underlined portion is in dispute.]
A. Positions of the Parties
The Agency argues that this proposal is nonnegotiable because private testing, as contemplated by this proposal, is contrary to the Guidelines, is not within the scope of Executive Order 12564, and does not concern a condition of employment under section 7103(a)(14) of the Statute. Therefore, the Agency argues that the grant of "official time" is not within the duty to bargain. Statement of Position at 58. The Agency also asserts that the proposal interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and that it is not an appropriate arrangement under section 7106(b)(3). Specifically, the Agency contends that if it granted 4 hours of administrative leave to permit an employee to undergo private testing, management would be precluded from assigning work to the employee granted such leave regardless of whether there was a need for that employee's services. Further, the Agency argues that because private testing is contrary to the Guidelines and is not in the primary interest of the government but, rather, is strictly within the control of an employee, the proposal does not constitute an appropriate arrangement. Finally, the Agency states that its employees may use their annual or sick leave for testing purposes.
The Union states that this proposal "has its facial meaning." Petition for Review at 6.
B. Analysis and Conclusions
Proposal 4J requires that the Agency provide employees with up to 4 hours of administrative leave to take a drug test. We are unable to determine the negotiability of Proposal 4J and will dismiss the petition for review as to this proposal.
The Agency interprets Proposal 4J as applying to private testing and the Union does not dispute that interpretation. Although the proposal does not specifically refer to private testing, the proposal does expressly reference "independent processing." Moreover, Proposal 4J is immediately preceded by Proposal 4I, which clearly references an employee's choice of a laboratory for retesting purposes and which, in our view, refers to private testing. As we read the proposal, and in the absence of any contrary indication, the proposal would allow employees up to 4 hours of administrative leave to undergo a private test at an independent laboratory. The first sentence of the proposal, which is not in dispute, and which requires the Agency to advise employees of the drugs for which they are being tested if the employees are required to submit a specimen, does not alter our view. Unlike prior Authority decisions, to be discussed below, in which proposals authorizing administrative leave for employees undergoing an agency-directed drug test were held negotiable, we find that the proposal's reference to independent processing implies private drug testing. Any other reading of the disputed portion of the proposal would render meaningless the reference to independent processing.
Having determined that the proposal would allow for the grant of administrative leave for the purpose of allowing employees to take a private drug test, we further find that we are unable to determine the negotiability of the proposal for the same reason discussed in connection with Proposal 4I. Before explaining that outcome, however, it is necessary to address certain contentions made by the Agency and our precedent involving similar proposals.
The Agency asserts that private testing is not contemplated by either the Executive Order or the Guidelines and, consequently, that the granting of administrative leave is not a condition of employment over which the Agency has an obligation to bargain. The Agency's premise concerning private testing cannot be sustained. There is no absolute prohibition on private testing in the cited authorities. Rather, the availability of split sample or private sample testing is contemplated by the Guidelines. In the comments to the Guidelines, HHS specifically rejected only the presentation "to the Medical Review Officer a split sample or private sample that does not fully comply with these Guidelines." 53 Fed. Reg. at 11971. Therefore, the use of a private sample, under certain circumstances, does not conflict with the Guidelines, as long as the sample otherwise comports with the requirements of the Guidelines. See National Federation of Federal Employees, Local 1384 and U.S. Department of Air Force, 3245th Air Base Group, Hanscom Air Force Base, Massachusetts, 41 FLRA 195 (1991). In such circumstances, a grant of leave might be negotiable.
In this case, an examination of the circumstances under which the private sample test results can be used leads to our finding that we are unable to determine the proposal's negotiability. As we stated in connection with Proposal 4I, which involved testing of a split sample, information pertaining to who will receive test results and whether those results will be used by someone other than the MRO to assess the medical significance of results is indispensable to determining whether the proposal is negotiable. For example, in National Park Service, 41 FLRA at 1183-86, we found a proposal that would have authorized up to 4 hours of official time for the purpose of allowing employees to take a private test was outside the duty to bargain because, as explained by the union, the purpose of the private test was to provide information to a supervisor to be used in refuting a positive test result. As such a purpose was inconsistent with the Guidelines, the proposal was deemed to be outside the duty to bargain. In comparison, in Bureau of Reclamation, 39 FLRA at 1512-14, we found negotiable a proposal authorizing up to 4 hours of administrative leave to take a drug test, because the record established that the drug test referred to was the drug test required by the agency.
The Union has failed to provide the information necessary to make a negotiability determination and the record is devoid of any evidence on which such a ruling can be made. Consequently, we will dismiss the petition for review as to this proposal.
X. Proposal 5 (12)
All drug testing will be conducted in accordance with the HHS scientific and technical guidelines. The methods and equipment used will meet the requirements as set forth in the guidelines.
The employer agrees that the following procedure will be utilized to assure drug testing is reliable:
A. Under the terms of this agreement, affected employees will report to the designated location to be tested.
B. Tests will be given in a sanitary, secluded area which provides the employee with both visual and auditory privacy.
C. Any "positive" results will again be verified by a 2nd, Gas Chromatography/Mass Spectrometry Test (GC/MS).
D. If sufficient volume of urine is not able to be provided within a reasonable period of time on the appointed day, the selectee may return on the next day until the necessary amount is provided.
E. The collection, handling, and transportation of all specimens will be in accordance with the HHS Strict Chain of Custody Procedures.
F. The authorized collection agent will collect all drug testing specimens. [Only the underlined portions of this proposal are in dispute.]
A. Positions of the Parties
The Agency argues that the first introductory paragraph of Proposal 5 is subject to various interpretations. The Agency states that if this paragraph is not intended to exclude other applicable rules or regulations, such as the Agency's Plan, then this paragraph is negotiable. The Agency further states, however, that if this paragraph is intended to be exclusive and to preclude the application of its Plan or other relevant guidelines, then the paragraph directly interferes with management's right to determine its internal security practices. Finally, the Agency asserts that if this paragraph excludes its Plan, then the proposal would be inconsistent with the Plan, for which there is a compelling need under section 7117(a)(2) and (b) of the Statute.
The Agency asserts that Section A of Proposal 5 is ambiguous because the phrase "[u]nder the terms of this agreement" could be interpreted to incorporate the nonnegotiable aspects of Proposal 2A. The Agency argues that this proposal is, therefore, nonnegotiable on the same basis as Proposal 2A.
The Agency argues that Section B of Proposal 5 is nonnegotiable because it is contrary to Executive Order 12564 and the Guidelines. Specifically, the Agency argues that Section B is inconsistent with section 4(c) of the Executive Order and section 2.2(e) of the Guidelines,(13) by prohibiting direct observation of the collection of a urine specimen in instances where the Executive Order and the Guidelines would permit such observation. Additionally, the Agency argues that Section B directly interferes with management's right to determine its internal security practices by interfering with the Agency's choice of techniques to ensure its internal security. By way of example, the Agency states that Section B would delay testing in situations where a sanitary, secluded area is not immediately available even though management has determined that immediate testing may provide "the best evidence of illegal drug use . . . ." Statement of Position at 62.
The Agency contends that Section C of Proposal 5 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Although acknowledging that Section C "follows section 2.4(f) of the HHS Guidelines," the Agency argues that this portion of the proposal would establish a contractual requirement that could become obsolete and contravene the Guidelines "if they change." Id. at 63. The Agency maintains that because the techniques, methods and equipment used to verify a positive test result form the basis for determining management's internal security practices, Section C impermissibly imposes a substantive limitation on the exercise of this right.
The Agency asserts that Section D of Proposal 5 is nonnegotiable because it interferes with management's right to determine its internal security practices and also because it contravenes the Guidelines. As to its first argument, the Agency argues that the requirement to permit employees to return the next day to provide a sample if unable to do so on the collection day would frustrate the purpose of the drug testing program by giving "the drug user . . . the opportunity to purge his/her system of the illicit drug so as to test negative the following day." Id. at 66. As to its second argument, the Agency asserts that Section B would allow for a type of split sample that is in conflict with the requirement of section 2.2(f) of the Guidelines that the collection site person contact the appropriate authority to obtain guidance on the action he or she should take in the event an employee is unable to produce the required volume of urine on the test day. The Agency also argues that to the extent the split or second sample is not part of the original sample, Section B of the proposal is inconsistent with the "Medical Review Officer Manual: A Guide to Evaluating Urine Drug Analysis," which was incorporated by reference in the Guidelines.
The Agency asserts that Section E of Proposal 5 is ambiguous and, therefore, that the petition for review as to this section of the proposal should be dismissed. The Agency argues that if the word "strict" means that all collection, handling and transportation of specimens will be done in accordance with the chain of custody procedures described in the Guidelines, then this section would be negotiable. The Agency contends, however, that if this section requires a higher standard than is provided for in the Guidelines, it is nonnegotiable because it directly interferes with management's right to determine its internal security practices.
The Agency asserts that Section F of Proposal 5 directly interferes with management's right to assign work or, alternatively, is not sufficiently specific and, therefore, the petition for review as to Section F of Proposal 5 should be dismissed. In this regard, the Agency notes that section 1.2 of the Guidelines provides for a "Collection Site Person" who is responsible for the collection of urine specimens. The Agency argues that by requiring it to assign specific duties to the authorized collection site person, Section F directly interferes with its right to assign work. Alternatively, the Agency asserts that the Union has failed to provide a stated intent for this section and the petition for review should be dismissed because the intended effect of the section is not clear.
The Union states that the wording of Proposal 5 is to be given its facial meaning. In its supplemental submission to the Authority, the Union states that Section B "is intended to be applied consistent with the applicable HHS Guidelines . . . ." Union's Supplemental Brief at 3. The Union also states that direct observation is permitted where there is reason to believe an individual may alter or substitute a specimen to be provided.
B. Analysis and Conclusions
1. Introductory Paragraph
We find that the first introductory paragraph of Proposal 5 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
This portion of the proposal is identical to a proposal that was before the Authority in American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 42 FLRA 567, 568-72 (1991) (Southern Administrative Service Center), petition for review filed sub nom. U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, No. 91-1583 (D.C. Cir. Nov. 27, 1991), which involved the same Agency and the same arguments as are involved here. We found, relying on earlier Authority precedent, that although the first sentence of the proposal requiring the Agency to conduct its drug testing program in accordance with the scientific and technical Guidelines issued by HHS directly interfered with management's right to determine its internal security practices, it was negotiable as an appropriate arrangement. We noted that as the existence of applicable laws, rules and regulations already served to limit agency action, and given the fact that implementation of an agency's drug testing program could adversely affect employees, an agency's interest in being able to act without regard to the limitations imposed by applicable laws, rules and regulations was negligible.
As to the second sentence of the proposal, mandating the use of methods and equipment that meet the requirements of the Guidelines, we found, separately, that such a matter was also negotiable as an appropriate arrangement. In reaching that conclusion, we noted that management's determination as to the methods and equipment to be used in drug testing is an exercise of the right to determine internal security practices under section 7106(a)(1) of the Statute. We further found that the limitation imposed by the proposal on management's choice of its methods and equipment constituted direct interference with that management right. However, to the extent that such a proposal simply required management to fulfill its responsibilities under the drug testing program in accordance with the HHS Guidelines, we found, for the same reasons discussed in connection with the first part of the proposal, that this portion was also negotiable as an appropriate arrangement.
The findings and conclusions discussed above, with regard to management's right to determine its internal security practices, are equally applicable here. Also, as in Southern Administrative Service Center, we reject the Agency's contention that its Plan bars negotiations over the proposal, on the basis that the Agency has failed to substantiate its claim. In support of its contention here, the Agency merely states that if the proposal would exclude the Agency's Plan "for which there is a compelling need under Section 2 of the Executive Order, . . ." the proposal would be nonnegotiable under section 7117(a)(2) and (b) of the Statute. We find that such an assertion, lacking any explanation as to the manner in which the proposal would be inconsistent with the Plan and references to particular portions of the Plan, does not support the Agency's contention. Accordingly, we find that the first introductory paragraph constitutes a negotiable appropriate arrangement.
2. Section A
We find that Section A is not sufficiently specific and delimited in form and content to permit a determination as to its negotiability. We will dismiss the petition for review as to this portion of Proposal 5.
The record does not establish what terms of the parties' agreement are referenced by the proposal. Without an explanation from the Union as to the specific terms of the agreement, we are unable to determine the effect of the proposal or whether it is consistent with applicable law and regulation. A petition for review that does not present a proposal sufficiently specific and delimited to enable the Authority to make a negotiability determination does not meet the conditions governing review set forth in section 7117(c) of the Statute or section 2424.1 of the Authority's Rules and Regulations. See Southern Administrative Service Center, 42 FLRA at 572; Department of Education, 38 FLRA at 1092-94.
3. Section B
We find that Section B does not conflict with section 4(c) of the Executive Order or section 2.2(e) of the Guidelines, as alleged.(14) We also find it unnecessary to determine whether the proposal directly interferes with management's right to determine its internal security practices because even if there were such an interference, we would nonetheless find that the proposal constitutes a negotiable appropriate arrangement. Therefore, the proposal is within the duty to bargain.
The Agency argues that Section B is inconsistent with the Executive Order and the Guidelines because it prohibits direct observation of the collection of a urine specimen where the Executive Order and the Guidelines would permit such observation. We reject the Agency's contention. Previously, we have discussed the application of the Executive Order and the Guidelines in the context of similar proposals. See Southern Administrative Service Center, 42 FLRA at 573-78; American Federation of Government Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 42 FLRA 542, 546-52 (1991) (Department of the Army); GSA, 41 FLRA at 729-38; Department of Education, 38 FLRA at 1094-99. We have found, as an initial matter, that neither section 4(c) of the Executive Order nor section 2.2(e) of the Guidelines requires direct observation in any circumstances. Rather, we have stated that "[a]n agency may limit an employee's privacy only if the agency has reason to believe that the employee will attempt to alter or substitute his or her sample." Department of Education, 38 FLRA at 1094.
We have also recognized, however, that the Guidelines require direct observation in certain defined circumstances. Those circumstances are set forth in sections 2.2(f)(13) and 2.2(f)(16), which require direct observation by a same gender collection site person when, respectively: (1) the temperature of a specimen falls outside a prescribed range, thus giving rise to a reason to believe that the employee may have altered or substituted the specimen; or (2) there is reason to believe that a particular individual may alter or substitute the specimen to be provided, thus necessitating that the second specimen be obtained under direct observation. Consistent with these requirements, and the findings set forth above, we have assessed the negotiability of identically worded proposals as the one before us, in terms of whether the proposals would permit the type of direct observation that is required by the Guidelines.
Here, the Union clearly states that Section B "is intended to be applied consistent with the applicable HHS Guidelines . . . ." Union's Supplemental Brief at 3. The Union also states that direct observation is permitted where there is reason to believe that an individual may alter or substitute a specimen. Given this explanation, it is evident that the Union intends that the proposal be administered in conformance with the Guidelines. As such, we find nothing in Section B that would affect the Agency's ability to restrict an employee's privacy in the circumstances required by the Guidelines.
Finally, using the framework set out in Department of Education, we find it unnecessary to determine whether Section B directly interferes with management's right to determine its internal security practices. Even if there were such a direct interference, we would find that Section B is negotiable as an appropriate arrangement. As noted, the Union argues, generally, that its proposals constitute appropriate arrangements. The proposal is designed to offer certain protections for employees undergoing drug tests. Consequently, we find that the proposal is intended to be an arrangement. As we found in Southern Administrative Service Center, 42 FLRA at 578, where we balanced the competing interests of the employees and the agency with regard to an identically worded proposal, the benefits inuring to employees under this type of arrangement relate to the protection of personal privacy, which is of paramount concern. In contrast, the proposal imposes only a limited burden on management's right to administer its drug testing program. Therefore, we find that Section B constitutes a negotiable appropriate arrangement.
4. Section C
We find that section C of Proposal 5 is negotiable as an appropriate arrangement.
In Southern Administrative Service Center, 42 FLRA at 578-81, we addressed identical agency arguments in the context of an identically worded proposal. As explained below, we reach the same conclusions here as we did in that case.
Specifically, we found that by requiring the use of a particular technique to verify positive test results, the proposal directly interfered with management's right to determine its internal security practices by placing a substantive limitation on the agency's right to determine the methods and equipment used to conduct drug tests. However, we further found that the proposal constituted a negotiable appropriate arrangement because it did not excessively interfere with the exercise of that management right. In reaching this result, we found that the agency was already required to use the Gas Chromatography/Mass Spectrometry test under the Guidelines, that, at most, the agency would be required to use that particular technique for the duration of the parties' agreement, and that nothing would preclude the agency from using additional confirmatory techniques, as appropriate. In contrast, we found that the benefits to employees in ensuring the reliability of the confirmatory testing process outweighed the burden on the exercise of management's right.
We reach the same conclusions here. Consequently, and for the reasons more fully discussed in Southern Administrative Service Center, Section C constitutes a negotiable appropriate arrangement.
5. Section D
Section D allows an employee who is undergoing a drug test and who cannot provide a sample of sufficient volume within a reasonable period of time on the appointed test day to return the next day until the necessary amount is provided.
The Authority has found nonnegotiable proposals that are substantively the same as Section D, on the basis that they are inconsistent with section 2.2(f)(10) of the Guidelines and, as such, are outside the duty to bargain under section 7117(a)(1) of the Statute. See Southern Administrative Service Center, 42 FLRA at 582, National Park Service, 41 FLRA at 1181; National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1135 (1991), petition for review filed sub nom. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, No. 91-1493 (D.C. Cir. Oct. 8, 1991); Sierra Army Depot, 37 FLRA at 1445. For the reasons more fully discussed in Sierra Army Depot, we find that Section D of Proposal 5 is also inconsistent with the Guidelines and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute. In view of this result, we need not address the Agency's additional contentions.
6. Section E
Section E of Proposal 5 states that the collection, handling and transportation of all specimens will be in accordance with "HHS Strict Chain of Custody Procedures." The Agency argues that the proposal is ambiguous and should be dismissed. The Agency also argues that if the word "strict" is intended to mean that all prescribed activities be done in accordance with the Guidelines, the proposal is negotiable. If not so intended, the Agency argues that Section E is inconsistent with management's right to determine its internal security practices.
We reject the Agency's contention that the proposal is ambiguous. The proposal clearly references the HHS chain of custody procedures. We interpret this reference as either incorporating the Guidelines or being coextensive with the Guidelines. Given this interpretation, which is fully consistent with the language of the proposal, the Agency concedes that the proposal is negotiable. Consequently, we find that Section E is not in dispute and we will dismiss the petition for review as to this section. See Southern Administrative Service Center, 42 FLRA at 584.
7. Section F
Section F requires the authorized collection agent to collect all drug testing specimens. Stated otherwise, Section F requires the Agency to assure that the collection of all drug testing specimens is performed by an authorized individual. As such, we find that the section is sufficiently specific to enable us to provide the parties with a negotiability determination. We further find that Section F is negotiable.
Section F is to the same effect as proposals found negotiable in Southern Administrative Service Center, 42 FLRA at 585-86, and Department of the Army, 42 FLRA at 552-54. In those cases, we held that the proposals did not interfere with management's right to assign work. We also found, consistent with the requirements set forth in the Guidelines governing the handling and transportation of urine specimens from one authorized individual to another, that the proposals did not require management to assign specific duties to particular individuals, prescribe the identity or qualifications of the individuals required to make collections, or otherwise prevent management from adhering to the standards contained in the Guidelines.
We reach the same conclusions here. Accordingly, we find that Section F of Proposal 5 is negotiable.
XI. Proposal 6
A. All samples will be subject to a strict chain of custody which will require a signature of each person who has custody for any amount of time.
B. Employees will be guaranteed confidentiality in all matters relating to drug testing. Information will be released only to those that have an absolute need to know.
C. The agency shall destroy any employee records concerning non-confirmed test results.
D. Regardless of test results the employee will be given copies of all records and related documents concerned with the drug test. [Only the underlined portions are in dispute.]
A. Positions of the Parties
The Agency argues that use of the words "strict" and "any" in Section A of Proposal 6 render this section ambiguous. The Agency states that it is unclear whether the proposal requires use of the Guidelines or whether the proposal establishes a chain of custody standard that is higher than that contemplated by the Guidelines. More particularly as to the word "any," the Agency states that the proposal might require "the Postman" to sign chain of custody documentation if samples are shipped through the mail. Statement of Position at 71. The Agency argues that because of these "ambiguities and lack of intent," the petition for review of this section should be dismissed. Id.
The Agency asserts that Section B of Proposal 6 is also ambiguous and that the petition for review as to this section should also be dismissed. The Agency argues that the intent of the proposal, that drug testing information will be released only to those with "an absolute need to know," is not clear. The Agency asserts that this section of the proposal could be read as precluding the release of information to management officials who are authorized by law to receive it. Consequently, because it is impossible to determine the intent and effect of this section, the Agency argues that the petition for review should be dismissed, as was done with a similar proposal in Rock Island I, 30 FLRA at 1076.
The Agency contends that Section C of Proposal 6 is nonnegotiable because it conflicts with the Guidelines and FPM Supplement 293-31, and also because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. Specifically, the Agency argues that Section C of the proposal is inconsistent with sections 2.4(f)(8) and 2.4(m) of the Guidelines, which require that drug testing laboratories maintain test records for a minimum of 2 years. The Agency also argues that the section is inconsistent with the portion of the FPM requiring retention of drug testing records. Finally, the Agency asserts that Section C directly interferes with the Agency's right to determine its internal security practices by precluding management from retaining test results that may be needed "for further study in connection with the establishment of its internal security practices[,]" and to address potential employee claims concerning the testing process. Statement of Position at 72.
The Agency argues that Section D of Proposal 6 is inconsistent with law, contrary to the Guidelines, or, alternatively, that it is ambiguous and the petition for review should be dismissed. Specifically, the Agency asserts that Section D could be read to include records "in the nature of privileged attorney-client memoranda" and records of other employees' tests in the context of "'related documents'". Id. at 73. Consequently, the Agency argues that this section is contrary to section 503 of Pub. L. No. 100-71, 5 U.S.C. § 7301 note, and section 2.9 of the Guidelines, which allow individual access only to "an employee's own drug test and the records of certification, review, or revocation of the laboratory." Id. Alternatively, the Agency argues that the petition for review as to this section "should be dismissed because of its ambiguity and lack of intent." Id.
The Union states that Proposal 6 is to be given its facial meaning. The Union also states that the word "absolute" in Section B of Proposal 6,(15) is intended to mean that only persons who are authorized under applicable law, rule and regulation are to receive information pertaining to drug testing. Petition for Review at 7. The Union also states that the word "absolute" is not intended to place an additional limitation on access to drug testing information but, rather, "denotes the importance of not exceeding the limitation established by such authorities." Id.
B. Analysis and Conclusions
1. Section A
Section A of Proposal 6 requires that all samples be subject to strict chain of custody procedures, requiring the signature of each person who has custody for any amount of time. We find that Section A is not sufficiently specific to enable us to make a negotiability determination. Therefore, we will dismiss the petition for review as to this section.
Section A is concerned not only with ensuring that samples be subject to a strict chain of custody, as we addressed in connection with Proposal 5, Section E, but also mandates that all persons who have custody for any amount of time provide their signatures. The Union has provided no explanation as to the meaning and intent of the signature requirement. We are aware that the Guidelines require the signature of collection site personnel in various respects. For example, section 2.2(c) of the Guidelines states that "standardized forms shall be properly executed by authorized collection site personnel upon receipt of specimens. . . ." 53 Fed. Reg. at 11980. Also, section 2.2(h) provides that after preparing collected specimens for shipment--in specimen boxes or padded mailers, for example--the collection site supervisor must sign and date the tape that is used to seal the containers.
Here, however, the Union has not indicated whether the signature requirement is intended to comport with the Guidelines. If the proposal were so intended, we would find the proposal negotiable. Instead, and as noted by the Agency, the signature requirement could be extended beyond the requirement set forth in the Guidelines, to include postal employees and other persons who spend "any" amount of time in activities connected with the chain of custody. Under this interpretation, Section A would require non-Agency personnel who have no direct connection with the Agency's drug testing program, and over whom the Agency has no control, to provide their signatures. This interpretation could support a conclusion that the proposal directly and excessively interfered with the Agency's right to determine its internal security practices and was nonnegotiable. Because we are unable to determine whether the proposal is intended to be consistent with the signatory requirements set forth in the Guidelines or to operate in a manner that is inconsistent with the Agency's right to determine its internal security practices, we cannot resolve the negotiability of this proposal. Consequently, we will dismiss Section A of Proposal 6 from the petition for review.
2. Section B
Section B provides that the Agency shall release information concerning an employee's drug test only to those who have an "absolute need to know." The Agency argues that Section B is ambiguous and could preclude the release of information to management officials who are authorized to receive such information. We disagree.
The Union has explained that the intent of this section is to allow the release of information to those persons who are authorized by applicable law, rule or regulation to receive the information. The Union further explains that the intent is to require that the release of information not exceed the limitations imposed by the cited authorities. Given this explanation, we find that the proposal is not ambiguous. Moreover, as the Agency has made no other arguments that Section B is nonnegotiable, and none are apparent to us, we find that it is negotiable. In reaching our conclusion, we note that Section B is distinguishable from Department of Education, 38 FLRA at 1103-07, and Rock Island I, 30 FLRA at 1073, in which the Authority dismissed similar proposals on the basis that the unions failed to present sufficient records on which the negotiability of the proposals could be assessed. Here, as noted, the Union has stated that the proposal is to be applied consistent with applicable law, rule and regulation. On this basis, we find that Section B of Proposal 6 is negotiable.
3. Section C
Section C requires the destruction of any employee records concerning unconfirmed test results. This section is virtually identical to proposals found nonnegotiable in Department of the Army, 42 FLRA at 555-56, and Department of Education, 38 FLRA at 1109-112. In both cases, we found that the proposals were inconsistent with the requirement of FPM Supplement 293-31 that agencies retain records of results of laboratory drug testing in an Employee Medical File System. We also found that the proposals were inconsistent with requirements contained in the Guidelines concerning the reporting of test results and the maintenance of records on urinalysis testing. As both FPM Supplement 293-31 and the Guidelines are Government-wide regulations, we concluded that the proposals were outside the duty to bargain under section 7117(a)(1) of the Statute. We reach the same result here. Consequently, we find that Section C of Proposal 6 is nonnegotiable.
4. Section D
Section D requires the Agency to provide employees with copies of all records and related documentation concerning their drug tests. We reject the Agency's assertion that the proposal is ambiguous because it could be read to include records and documents unrelated to an employee's own drug test. There is nothing in the proposal to suggest that Section D is to be interpreted in such a broad manner. Instead, when Section D is read in conjunction with the other sections of Proposal 6, it is evident that the information to be provided to an employee pertains to that employee's drug test. Given this interpretation, we find that Section D is similar to a proposal in Department of Education, 38 FLRA at 1112-13. In that case, we determined that a requirement to inform employees of their right to obtain copies of documents related to their drug tests was consistent with applicable legal and regulatory requirements, including section 503 of Pub. L. No. 100-71 and section 2.9 of the Guidelines, that agencies provide employees with access to information concerning their drug tests and other matters relating to the drug testing process. We further stated that to the extent the proposal entitled employees to copies of documents relating to their drug tests, the proposal was consistent with law and the Guidelines and, therefore, was negotiable.
Section 503 of Pub. L. No. 100-71 and section 2.9 of the Guidelines authorize the disclosure of information to employees upon their written request. Although Section D does not specify that the furnishing of information to an employee is contingent on that employee's written request, we conclude that such a requirement is implicit in the proposal. First, the Agency did not assert that Section D was contrary to law or regulation on this basis, although the Agency was familiar with the applicable legal and regulatory authorities, having relied on them in support of other arguments. Second, there is no indication in the record that the parties intended the proposal to operate in a manner that is inconsistent with the legal and regulatory authorities. Consequently, we find that Section D of Proposal 6 is negotiable.
XII. Proposal 7
Proposal 7A
Employees whose tests have been confirmed positive in accordance with this agreement will be referred to an Employee Assistance Program Counselor for counseling and/or rehabilitation at no cost to the employee. Employees will be informed in writing of the consequences should they refuse counseling or rehabilitation.
Proposal 7B
Counseling and rehabilitation services will be offered at no cost to family members of employees with substance abuse problems and offered to employees who have family members with substance abuse programs.
Proposal 7C
Prior to implementation of the drug testing program, the parties will meet and negotiate a strong, effective Employee Assistance Program providing for education, treatment and rehabilitation.
Proposal 7D
Employees will be returned to duty after successful completion of rehabilitation. Employees will remain in their original positions. [Only the underlined portions are in dispute.]
A. Positions of the Parties
The Agency argues that by requiring the Agency to pay the cost of treatment provided to an employee through a counseling and rehabilitation program, Proposal 7A is inconsistent with an FPM supplement and directly interferes with management's right to determine its internal security practices under section 7106(a)(1). Specifically, the Agency asserts that FPM Supplement 792-2, subchapter S6-3 provides that an employee is responsible for the costs of treating his or her drug abuse problem. In support, the Agency cites the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 1759 and Department of the Army, Headquarters, Fort McPherson, Georgia, 31 FLRA 21, 28-29 (1988) (Fort McPherson), finding that while agencies are required to refer employees to treatment and rehabilitation, the agencies are not required to provide treatment and rehabilitation. The Agency asserts that Section A also directly interferes with management's right to determine its internal security practices because the phrase "in accordance with this agreement" incorporates other, nonnegotiable proposals, such as Proposal 2A, which preclude random drug testing. The Agency maintains that to the extent nonnegotiable proposals are incorporated by reference into this proposal, Proposal 7A is also nonnegotiable.
The Agency argues that as Proposal 7B would require the Agency to provide counseling and referral services at no cost to employees and other persons, this section is also inconsistent with FPM Supplement 792-2, subchapter S6-3 and, therefore, nonnegotiable under section 7117(a)(1) of the Statute. The Agency also asserts that this section is nonnegotiable because it does not relate to a condition of employment within the meaning of section 7103(a)(14) of the Statute. The Agency states that family members of employees are not employees of the Agency, and a proposal requiring the Agency to provide rehabilitation services to an employee's family members or to an employee whose family members have substance abuse problems does not concern a condition of employment.
The Agency asserts that Proposal 7C relates to a matter which is specifically provided for by law and, therefore, is outside the duty to bargain under section 7103(a)(14). Specifically, the Agency asserts that both Executive Order 12564 and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., require agencies to develop an Employee Assistance Program (EAP). According to the Agency, because the establishment of an EAP is specifically provided for by law, Proposal 7C is outside the duty to bargain. Moreover, the Agency argues that Proposal 7C directly interferes with various management rights, including the right to determine its internal security practices, direct and assign employees, and assign work. The Agency argues that the establishment of an EAP, in connection with the Agency's drug testing program, is an integral part of determining internal security practices, and involves directing and assigning employees and assigning work.
The Agency argues that Proposal 7D is nonnegotiable because it contravenes section 5(c) of Executive Order 12564 and interferes with various management rights. The Agency states that section 5(c) of the Executive Order grants the Agency head the discretion to allow an employee to return to a sensitive position after successful completion of rehabilitation only if a determination has been made that the employee would not pose a danger to public health or safety or the national security. The Agency claims that the proposal omits this requisite determination. The Agency also states that by allowing an employee to remain in his or her original position, the proposal is inconsistent with the Executive Order, which prohibits any employee in a sensitive position who is found to use illegal drugs from remaining on duty in that position prior to the successful completion of rehabilitation. The Agency also argues that Proposal 7D directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) by limiting management's discretion to decide when an employee who has undergone rehabilitation should be returned to a sensitive position. The Agency asserts that this proposal would require the Agency to return an employee to his or her position regardless of the fact that management may believe that the employee still poses a risk to the internal security of the Agency. Finally, the Agency contends that Proposal 7D directly interferes with management's rights to assign employees to positions under section 7106(a)(2)(A) of the Statute; to assign work under section 7106(a)(2)(B); and to discipline employees under section 7106(a)(2)(A), to the extent the proposal requires employees to remain in their positions.
The Union provided no explanation of its intent as to Proposals 7A, 7B and 7C, other than their "facial meaning." Petition for Review at 8. As to Proposal 7D, the Union states that the first sentence "means that if an employee succeeds in rehabilitating himself or herself after a reasonable opportunity for rehabilitation, the employee will be returned to duty." Id. The Union states that the second sentence of Proposal 7D refers to such rehabilitated employees and "otherwise has its facial meaning." Id.
B. Analysis and Conclusions
1. Proposal 7A
Proposal 7A requires the Agency to refer employees whose tests have been confirmed positive in accordance with the agreement to an EAP for counseling and rehabilitation, at no cost to the employees. Initially, we reject the Agency's assertion that use of the phrase "in accordance with this agreement" incorporates nonnegotiable provisions into Proposal 7A. However, we find that Proposal 7A is nonnegotiable.
As noted by the Agency, the Authority addressed a comparable proposal in Fort McPherson, 31 FLRA at 27-30. In that decision, the Authority found, citing legal and regulatory authority, that while agencies are required to refer employees for treatment and rehabilitation, the agencies are not required to provide treatment and rehabilitation services or establish treatment and rehabilitation programs themselves and that the regulations do not contemplate that agencies will do so. The Authority also found that a requirement that the agency provide such services at no cost to the employee was inconsistent with FPM Supplement 792-2, subchapter S6-3, and supporting Comptroller General decisions, which hold that an employee bears the costs of treating "'his or her drinking or drug problem[.]'" 31 FLRA at 29. As the Authority found that FPM Supplement 792-2, subchapter S6-3 was a Government-wide regulation, the Authority held that the proposal in Fort McPherson was outside the duty to bargain under section 7117(a)(1) of the Statute.
We reach the same result here. Consequently, we find that Proposal 7A is outside the duty to bargain under section 7117(a)(1) of the Statute.
2. Proposal 7B
The first part of Proposal 7B requires the Agency to offer drug counseling and rehabilitation services, at no cost, to family members of employees with substance abuse problems. The second part of the proposal requires the Agency to offer counseling and rehabilitation services to employees with family members who have substance abuse problems.(16) Although the second part does not specifically state that such services will be at no cost to the employee, it is logical to conclude that that is what is contemplated by the proposal. Given the Union's obvious intent that the Agency pay for services rendered to family members of employees, it is not likely that the Union intended for employees to pay the cost of their own counseling and rehabilitation when their family members have a substance abuse problem. Consequently, we read the second part of Proposal 7B as also requiring the Agency to provide the stated services at no cost to the employee.
For the reasons set forth in our analysis of Proposal 7A, we find that Proposal 7B is also nonnegotiable. As we stated, employees are responsible for the costs of treating their problems. This being the case, we can find no authority, and none has been offered by the Union, to hold that the costs contemplated by the proposal are negotiable. In light of our conclusion, we need not address the Agency's contention that the proposal does not concern a condition of employment.
3. Proposal 7C
Proposal 7C requires the Agency to meet with the Union prior to the implementation of the drug testing program in order to negotiate a strong, effective EAP, which provides for education, treatment and rehabilitation. We find that the proposal is negotiable.
Initially, we reject the Agency's contention that Proposal 7C refers to a matter specifically provided for by Federal law and, therefore, that it is outside the duty to bargain. In Department of Education, 38 FLRA at 1113-16, we found that a proposal identical to Proposal 7C was negotiable on the basis that it was simply a restatement of the Agency's duty under the Statute to meet its bargaining obligations concerning changes in conditions of employment of bargaining unit employees and its duty under Government-wide regulations concerning the formulation and implementation of employee assistance programs and policies. Id. at 1115-16. We noted, specifically, that FPM Chapter 792, subchapter 6-8, provides that in formulating and implementing employee counseling service programs, agencies are to fulfill their bargaining obligations with unions that have been accorded exclusive recognition. See also Attachment 6 to FPM Letter 792-19, 54 Fed. Reg. 14033 ("where there are units of exclusive recognition, management should . . . [c]onsult or negotiate, as appropriate, concerning the implementation of the EAP.") Consequently, we find that Proposal 7C merely requires the Agency to negotiate consistent with its obligations under law and regulation. That does not end our inquiry, however.
The Agency also argues that Proposal 7C interferes with various management rights. No such arguments were raised or addressed by the Authority in our discussion of the comparable proposal in Department of Education. In support of its contention, the Agency states that the establishment of the EAP is an integral part of the Agency's determination of its internal security practices and that it involves management's judgment as to the policies and practices to be used in referring employees and the policies to be used following rehabilitation. The Agency also asserts that in establishing the EAP, management will necessarily have to direct and assign employees to positions in the program and to assign work to employees.
We reject the Agency's contentions. The proposal says nothing about responsibilities that bargaining unit employees may have with regard to the EAP. Thus, we find no basis on which to conclude that the proposal interferes with the Agency's rights to direct and assign employees and to assign work. To the extent the proposal might involve the assignment of duties to non-bargaining unit employees, the proposal is nonetheless negotiable, for the reasons we expressed in connection with Proposal 2B, above, and as more fully explained in Merchant Marine Academy, 39 FLRA at 187. Similarly, we find no basis on which to conclude that the proposal would interfere with the Agency's right to determine its internal security practices. If the Agency's argument were to be accepted as controlling, the statutory and regulatory obligation to bargain, discussed above, would be rendered meaningless. In other words, requiring the Agency to bargain over the proposal is consistent with the applicable legal and regulatory requirements that agencies meet their bargaining obligations with respect to the formulation and implementation of employee assistance programs. Moreover, negotiations for a strong and effective EAP, as provided in the proposal, would enhance and promote the Agency's internal security needs. Consequently, we conclude that Proposal 7C is negotiable.
4. Proposal 7D
The first sentence of Proposal 7D requires the Agency to return an employee to duty after the successful completion of a drug rehabilitation program. The second sentence of the proposal provides that the employee will remain in his or her original position. We find that the first sentence is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. However, the second sentence is nonnegotiable because it directly and excessively interferes with the exercise of various management rights.
The Agency argues that Proposal 7D is inconsistent with section 5(c) of Executive Order 12564 by requiring the Agency to return an employee to a sensitive position without regard to a determination by management that the employee will not pose a danger to the public health, safety, or national security.(17) We disagree. Section 5(c) of the Executive Order applies to employees in sensitive positions. However, neither the language of the proposal nor the Union's expressed intent establishes that the proposal is limited to employees occupying sensitive positions. Consequently, the Agency's contention that the proposal is inconsistent with the Executive Order does not apply to employees not occupying sensitive positions. To the extent the proposal would apply to employees in sensitive positions, however, we also do not find it to be inconsistent with the Executive Order.
In this regard, the Agency's contentions are predicated on a misreading of the Union's proposal. Section 5(c) provides that agencies shall not allow employees who occupy sensitive positions and who are found to use illegal drugs to remain on duty, prior to successful completion of rehabilitation through an EAP. Section 5(c) further states that "as part of a rehabilitation or counseling program," an agency head retains the discretion to allow an employee to return to duty in a sensitive position if it is determined that such action would not pose a danger to public health or safety or the national security. Section 5(c) of Executive Order 12564. Contrary to the Agency's arguments, however, and based on the language of the proposal and the Union's stated intent, the proposal clearly pertains only to those instances in which an employee has successfully completed rehabilitation. Consequently, the Agency's reliance on the portion of section 5(c) which permits the Agency to return an employee to duty "as part of a rehabilitation or counseling program," is inapposite. Moreover, we find nothing in section 5(c) or the Agency's arguments to support a finding that the return of an employee occupying a sensitive position after that employee successfully completes rehabilitation through an EAP is inconsistent with the Executive Order.
However, we find that the proposal directly interferes with the exercise of various management rights. First, the Agency argues that the proposal interferes with its right to determine internal security practices because only the Agency can determine whether an employee continues to pose a risk to the Agency's internal security after successful completion of rehabilitation. We agree with the Agency as to the second sentence of the proposal but reject the argument as to the first sentence of the proposal. The first sentence of the proposal would not require the Agency to place an employee in a position that would compromise the Agency's internal security. Instead, the Agency could choose where the employee would be placed. In contrast, the second sentence of the proposal could require the Agency to return an employee to a sensitive position, if that is the position originally held. The Agency would be prevented from determining, based on the nature of an employee's original position and duties, that the return of the employee would compromise the Agency's internal security.
Next, the Agency argues that the proposal interferes with management's right to assign employees within the meaning of section 7106(a)(2)(A) of the Statute. We agree and find that both sentences of the proposal interfere with management's right to assign employees. The Agency has the right to determine the positions to which employees will be assigned. Proposal 7D would require the Agency to place employees in positions, after they have successfully completed rehabilitation, without regard to whether any positions are available. We find nothing in the Executive Order, the Guidelines, or any other authority pertaining to drug testing, and none has been cited by the Union, that requires an agency to ensure that positions are available for employees who have been found to use illegal drugs, notwithstanding their successful completion of rehabilitation. Additionally, the proposal directly interferes with the Agency's right to assign employees to the extent that the second sentence of the proposal could require the Agency to return an employee to a sensitive position.
Finally, the Agency contends that Proposal 7D interferes with its rights to assign work and to discipline employees. These contentions must be rejected. The proposal says nothing about the particular duties that will be assigned, when work assignments will occur, or to whom or what positions work assignments will be made. Similarly, the proposal is silent as to the Agency's ability to discipline employees. Consequently, we find no basis on which to conclude that the proposal directly interferes with these rights.
Having found that the first sentence of the proposal directly interferes with the Agency's right to assign employees, we further find, however, that it does not excessively interfere with that right. In weighing the competing interests of the Union and the Agency, we find that the benefits to employees afforded by this portion of the proposal outweigh the burdens imposed on the Agency. Maintaining available positions to which employees can return following completion of rehabilitation clearly constitutes a significant benefit to employees who have successfully completed such a program. Employees who have been found to use illegal drugs are provided an important incentive to successfully complete rehabilitation if there is an expectation of continued employment. Previously, we have recognized that an agency's implementation of its drug testing program can adversely affect employees. See, for example, Department of Education, 38 FLRA at 1077. Clearly, the maintenance of job security is one way to alleviate the adverse consequences flowing to employees as a result of the Agency's drug testing program. Moreover, studies indicate that the vast majority of employees who are subjected to drug testing are not using illegal drugs.(18) Consequently, the requirement to maintain available positions for those employees who return following successful completion of rehabilitation would involve few, if any, positions. On the other hand, there has been no contention by the Agency that it would be unable to provide positions for employees who return after successful completion of rehabilitation. Consequently, under the circumstances presented in this case, we find that the first sentence of Proposal 7D constitutes a negotiable appropriate arrangement. See generally, American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 258-62 (1990); International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 36-40 (1990) (proposals requiring agencies to make every effort to place employees rendered physically unable to perform the duties of their positions into other positions constituted negotiable appropriate arrangements for employees adversely affected by the rights to assign employees and assign work).
We further find, however, that the second sentence of Proposal 7D would excessively interfere with the Agency's rights to determine its internal security practices and to assign employees. This portion of the proposal would require the Agency to return an employee to a sensitive position, if that was the position originally held, following successful completion of rehabilitation. As we stated previously, this requirement would operate without regard to the Agency's internal security concerns. The Agency would be prevented from determining, based on the nature of the employee's position and the duties attendant to that position, whether the employee continues to pose a risk to the Agency's internal security. While it is possible that an employee's successful completion of rehabilitation would eliminate some of the Agency's internal security concerns, the inability to make a determination on an individual employee basis places an undue burden on the Agency's right to determine its internal security practices. Additionally, the Agency would have no choice as to which position the employee would be returned. The Agency would have to maintain, as available, the position previously occupied by the affected employee until such time as the employee returned from rehabilitation. By requiring the Agency to assign a returning employee to the position previously held by that employee, the proposal excessively interferes with the Agency's right to assign employees. We find that such a requirement imposes a greater burden on the Agency than the first sentence of the proposal, which simply required the Agency to return employees to duty, and did not specify the particular position into which a returning employee would be placed. Therefore, on balance, we conclude that the second sentence of Proposal 7D does not constitute a negotiable appropriate arrangement.
XIII. Proposal 8
No employee shall be required to sign any document associated with drug abuse testing programs stating he or she agrees or disagrees to be tested.
A. Positions of the Parties
The Agency contends that Proposal 8 directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. 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 Tooele Army Depot, 31 FLRA at 51-57, that proposals prohibiting an agency from requiring employees to consent to its drug testing program are nonnegotiable because they directly and excessively interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
The Union states that Proposal 8 should be given "its facial meaning." Petition for Review at 9.
B. Analysis and Conclusions
We find that Proposal 8 is nonnegotiable because it directly and excessively interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Proposal 8 is identical to a proposal that was found nonnegotiable in Department of the Army, 42 FLRA at 556. In that case, noting the Authority's previous holdings in Tooele Army Depot, Pueblo Depot Activity, and American Federation of Government Employees, Local 738 and U.S. Department of the Army, Fort Leavenworth, Kansas, 38 FLRA 1203, 1216-19 (1990), we concluded that by preventing the agency from requiring employees to sign forms in which they agreed to submit to testing under the agency's drug testing program, the proposal directly and excessively interfered with the agency's right to determine its internal security practices. For the reasons more fully explained in Department of the Army, we reach the same conclusion as to Proposal 8.(19)
XIV. Proposal 9A
No bargaining unit employee will be involved in any phase of drug testing procedures.
A. Positions of the Parties
The Agency maintains that Proposal 9A is subject to more than one interpretation. The Agency asserts that, depending on how Proposal 9A is interpreted, it either: (1) directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute; or (2) is inconsistent with section 3 of Executive Order 12564 and with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
Specifically, the Agency asserts that under the first interpretation, the proposal would prevent management from assigning any work related to any phase of the drug testing process to bargaining unit employees. Based on this interpretation, the Agency contends that the proposal interferes with its right to assign work under section 7106(a)(2)(B). Under the second interpretation, the Agency claims that the proposal could be interpreted to preclude the testing of employees for the use of illegal drugs. Based on this interpretation, the Agency contends that the proposal conflicts with section 3 of Executive Order 12564, which mandates drug testing of employees and thereby interferes with management's right to determine its internal security practices.
The Union again states that Proposal 9A is to be given "its facial meaning." Petition for Review at 9.
B. Analysis and Conclusions
We find that Proposal 9A is nonnegotiable because it directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
In Department of the Army, 42 FLRA at 559, we addressed a virtually identical proposal. We found that it directly interfered with management's right to assign work by preventing the Agency from assigning duties to employees. We also found that the proposal excessively interfered with that management right because the restriction placed on the agency's ability to assign work was absolute. We noted that there were no exceptions provided in the proposal for any drug testing activity with which unit employees could become involved and that management's ability to assign work would be seriously impaired. We reach the same conclusions here. Consequently, we conclude that Proposal 9A is nonnegotiable. In reaching this result, it is unnecessary to address the Agency's additional contentions relating to an alternative interpretation of the proposal.
XV. Proposal 9B
All Union representatives and bargaining unit employees will receive employer-provided training on the entire drug testing program.
A. Positions of the Parties
The Agency contends that, like the second introductory paragraph in Proposal 4, Proposal 9B is outside the duty to bargain because it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency states that Proposal 9B would: (1) require management to provide training; and (2) would prescribe the content of the training, that is, the entire drug testing program. The Agency contends that the Authority previously has found that proposals requiring management to provide training to employees are outside the duty to bargain, and urges the Authority to find the same here.
The Union states that the proposal sets forth a procedure that is intended to provide employees and Union representatives with information regarding the Agency's drug testing program. The Union further asserts that the proposal does not prescribe the frequency, duration or level of formality for such training. Finally, the Union states that the proposal is not intended to require the Agency to reveal information that is "shielded from such access under exercise of management rights under applicable law, rule and regulation." Petition for Review at 9.
B. Analysis and Conclusions
Proposal 9B requires the Agency to provide training to all Union representatives and bargaining unit employees concerning the Agency's drug testing program. We conclude that the proposal does not directly interfere with the Agency's right to assign work and that it is within the duty to bargain.
In our discussion above of the second introductory paragraph of Proposal 4, we found that a requirement to provide briefings for employees did not directly interfere with management's right to assign work. We reach the same result here. Although Proposal 9B requires the Agency to provide training, rather than briefings, as we stated in National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 772-73 (1991), and cases cited therein, proposals that simply require an agency to provide information, rather than instruction on employees' duties, do not directly interfere with management's right to assign work. See also American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557 (1991). There is no evidence here that the proposal is intended to provide instruction on employees' duties. Rather, the Union clearly states that the proposal is intended to provide information concerning the Agency's drug testing program. Additionally, there is no evidence that the proposal would prescribe the content of training or otherwise require the release of information that is protected by law, rule or regulation. Accordingly, we find that the proposal is negotiable.
XVI. Proposal 10
The agency will grant official time or administrative leave for employees for all facets of drug testing. Union representatives will be granted official time when representing employees pursuant to this agreement. [Only the underlined portion is in dispute.]
A. Positions of the Parties
The Agency argues that the disputed portion of the proposal is ambiguous because of the use of the phrase "all facets of drug testing." The Agency argues that the proposal could be interpreted to provide official time for private testing of a sample which, as the Agency argued in connection with Proposal 4J, does not concern a condition of employment. Consequently, the Agency argues that the Authority should either dismiss the petition for review as to this proposal because "its intent is not clear . . ." or find the proposal outside the duty to bargain because it is overly broad and could involve matters that are not working conditions within the meaning of section 7103(a)(14) of the Statute. Statement of Position at 83.
The Union states that the first sentence of the proposal "requires that employees be in a duty status when participating in any facet of the drug testing program." Petition for Review at 9.
B. Analysis and Conclusions
The disputed portion of Proposal 10 is not sufficiently specific to enable the Authority to make a negotiability determination. Consequently, we will dismiss the petition for review as it relates to this proposal.
Previously, we have held that proposals requiring that employees be granted official time for matters relating to drug testing are negotiable under section 7131(d) of the Statute, as long as the use of such time is consistent with the Statute and applicable laws and regulations. See National Park Service, 41 FLRA at 1185-86. Here, the Agency states that the official time could be granted for purposes that would not be authorized under the Statute. Although we do not adopt the Agency's assertion that the use of official time for a private test necessarily would constitute an unauthorized purpose, we agree that there could be aspects of the drug testing program for which the use of official time would be inconsistent with the Statute or other applicable laws or regulations. For example, in National Park Service, the proposal would have authorized official time for employees to take a private drug test, the purpose of which was to allow a supervisor to refute a positive drug test. Because that purpose was inconsistent with the Guidelines, we found that the proposal was outside the duty to bargain.
We cannot ascertain from the proposal whether it is intended to grant official time or administrative leave only for those purposes that are consistent with law and regulations. See, for example, U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 713-16 (1991), petition for review filed sub nom. Professional Airways Systems Specialists Division, District No. 1-MEBA/NMU, AFL-CIO v. FLRA, No. 91-1310 (D.C. Cir. June 28, 1991) (official time for training on drug-related matters). Nor is it clear that the proposal is intended to apply when an employee undergoes an agency-required drug test. See Bureau of Reclamation, 39 FLRA at 1512-14 (granting administrative leave for agency-required drug tests). To the contrary, the Union explains that the proposal applies to "any" facet of the drug testing program. In the absence of any further explanation, we are unable to conclude whether the purposes for which official time would be granted are consistent with the Statute and other applicable laws and regulations. Consequently, we will dismiss the petition for review as to Proposal 10.
XVII. Proposal 11
The employer will not coerce or require employees to participate in voluntary drug testing programs. Participation or non-participation in these programs will neither advantage or disadvantage employees. [Only the underlined portions are in dispute.]
A. Positions of the Parties
The Agency contends that the first sentence of Proposal 11 is nonnegotiable because it directly interferes with management's right to determine its internal security practices. The Agency argues that the first sentence of the proposal could be interpreted as requiring the Agency to "only conduct voluntary testing and not mandatory random testing." Statement of Position at 84. Given this interpretation, the Agency asserts that the proposal would prevent management from choosing random drug testing as one of its internal security practices. Alternatively, the Agency argues that the proposal should be dismissed for lack of clarity.
With respect to the second sentence of the proposal, the Agency contends that it is nonnegotiable because it is inconsistent with Executive Order 12564, and because it directly and excessively interferes with management's rights to determine its internal security practices and to discipline employees. More particularly, the Agency argues that by specifying that employees will not be subject to any disadvantage, which the Agency construes to mean no discipline, the second sentence would permit an employee to decide whether or not to submit to drug testing. The Agency asserts that such a result is inconsistent with the mandatory requirements for drug testing set forth in the Executive Order. The Agency also argues that the second sentence directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute "by eliminating any other criteria for testing but voluntary testing." Id. at 85. Finally, the Agency contends that by specifying that there will be no disadvantage to employees, the proposal would prevent management from taking disciplinary action when, for example, an employee refuses to submit to a drug test.
The Union states that "[w]hen testing is voluntary, Proposal 11 proscribes participation being mandated by the employer or used by the employer to have favorable or adverse impact on employees' conditions of employment." Petition for Review at 10.
B. Analysis and Conclusions
In Department of the Army, 42 FLRA at 562-66, we addressed an identically worded proposal. We found that the first sentence of the proposal clearly referred to voluntary drug testing programs and was neither inconsistent with the requirements of the Executive Order nor with management's right to determine its internal security practices. We reach the same result here and find that the first sentence of Proposal 11 is negotiable. In reaching this conclusion, we also reject the Agency's assertion that the proposal should be dismissed because it lacks clarity. The express language of the first sentence clearly references the Agency's voluntary drug testing programs.
As to the second sentence, however, we find, consistent with Department of the Army, that a requirement that employees not be subject to any disadvantage would prevent the Agency from removing an employee in accordance with the requirements of the Executive Order. Additionally, by preventing management from taking disciplinary action against employees, the proposal directly interferes with management's right to discipline. Consequently, and without addressing the Agency's additional contention here, we conclude that the second sentence of Proposal 11 is nonnegotiable.
XVIII. Proposal 12A
The Union shall receive copies of all statistical data pertaining to drug testing. [Only the underlined portion is in dispute.]
A. Positions of the Parties
The Agency argues that use of the word "all" in Proposal 12A is ambiguous. The Agency asserts that it is unclear whether the Agency would be required to disclose data in a manner that is inconsistent with the privacy and confidentiality requirements of section 4(c) of the Executive Order and section 2.8 of the Guidelines. The Agency argues, for example, that it might be required to disclose data that could identify the test results of a particular employee. The Agency also claims that the "scope of the statistical data to be provided to the Union by the agency under this proposal is very unclear." Statement of Position at 86. Consequently, because the intent of the proposal is unclear, the Agency argues that the petition for review as to Proposal 12A should be dismissed.
The Union states that Proposal 12A "has its facial meaning." Petition for Review at 10.
B. Analysis and Conclusions
We find that Proposal 12A is nonnegotiable because it directly and excessively interferes with the Agency's right to determine its internal security practices and because it is inconsistent with law.
It is well established that an agency's plan to test employees for the use of illegal drugs is part of the agency's internal security policy. See Rock Island I, 30 FLRA at 1054-60. Additionally, in American Federation of Government Employees, AFL-CIO, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 42 FLRA 599, 611 (1991), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 91-1588 (D.C. Cir. Nov. 29, 1991), we found that "[t]he disclosure of information that pertains to the implementation of that internal security policy, insofar as disclosure would compromise that aspect of the policy involving identification of employees who use illegal drugs, . . ." directly interferes with an agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
The Agency argues that the proposal could require the disclosure of information that would identify an employee's test results. We agree, and find that such disclosure would directly interfere with the Agency's right to determine its internal security practices. We are aware that the Guidelines require the preparation of monthly statistical reports, provided by the drug testing laboratory to the Agency, and that such reports may not include any personal identifying information. See section 2.4(g)(6) of the Guidelines. However, the proposal is not limited to statistical information that is consistent with the Guidelines. Rather, the express language of the proposal requires that all statistical data pertaining to drug testing be furnished to the Union. The Union has not explained what information is contemplated under the terms of the proposal and there is no exception for information that might reveal a given employee's identity.
For example, Proposal 7D, which we addressed previously, relates to participation of employees found to use illegal drugs in rehabilitation programs. Any statistical information maintained by the Agency concerning these employees would have to be provided to the Union, without regard to whether there are any personal identifiers attached to the information. Additionally, the release of statistical data could encompass the names of employees who have been selected and are scheduled for random drug testing. Such release would interfere generally with the Agency's right to determine its internal security practices because if the information is provided prior to testing, the Union would be given advance notification as to which employees will be tested. We further find that even if the statistical data did not include employee names, other identifying factors, such as a statistical analysis of a small work unit, might lead to the identification of specific employees.
Although the proposal is intended as an arrangement, we find that the burdens imposed on the Agency's ability to exercise its management right outweigh the benefits inuring under the proposal. There is no indication in the record as to the purpose for which the Union is seeking the information or how information containing employee identification would be used. In contrast, the Agency's ability to conduct its drug testing program without the potential for compromising the program, which release of employee identification would engender, is significant. Moreover, the Agency has a legitimate concern in not compromising the privacy of its employees, who have a strong interest in maintaining the confidentiality of information that may reveal positive drug test results. Consequently, we find that the proposal would excessively interfere with the exercise of management's right to determine its internal security practices.
Additionally, we agree with the Agency that the proposal could require the release of information that is inconsistent with law. In this regard, section 503 of the Supplemental Appropriations Act of 1987, Pub. L. No. 100-17, addresses the disclosure of information concerning employee drug tests under Government drug testing programs. In accordance with this provision, such information may not, without employee consent, be released to anyone except the employee's medical review official, the administrator of an EAP in which the employee is receiving counseling, a supervisory or management official with authority to initiate an adverse action against the employee, or pursuant to a court order. To the extent that Proposal 12A mandates the release of statistical data that could include employee identifications, the release of which is restricted by law, Proposal 12A is also inconsistent with law. See, generally, National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA 174, 178-79 (1991) (concerning the release of laboratory proficiency results under the Guidelines).
XIX. Proposal 12B
The employer shall provide documentation to the Union that will ensure that proportionate numbers of management personnel, nonbargaining personnel, and bargaining unit personnel are undergoing drug testing procedures.
A. Positions of the Parties
The Agency argues that Proposal 12B is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1). Specifically, the Agency contends that the clear purpose of Proposal 12B "is to ensure that proportionate numbers of personnel in each category are undergoing tests." Statement of Position at 87. According to the Agency, the proposal is intended to involve the Union in the selection process for determining "which categories of employees shall be subject to drug testing, for what reasons, and by which selection process." Id.
The Union states that the proposal "has its facial meaning." Petition for Review at 10.
B. Analysis and Conclusions
In Bureau of Reclamation, 39 FLRA at 1506, we addressed a proposal that would have required the agency to submit all information concerning implementation of the agency's drug testing selection process before the process was started. We found that, to the extent the proposal could be interpreted to require the disclosure of information regarding the criteria for selection to enable the union to determine the employees to be selected prior to testing, the proposal directly interfered with the agency's right to determine its internal security practices. However, as the proposal was subject to differing interpretations, we were unable to determine the negotiability of the proposal, and we dismissed the petition for review.
Proposal 12B is also susceptible to an interpretation that would compel the Agency to provide information relating to the selection of employees for testing. As such, the proposal would directly interfere with the Agency's right to determine its internal security practices. However, the proposal could also be read to require only the release of information that would enable the Union to ascertain whether "proportionate numbers" of various categories of Agency personnel are being tested. If so interpreted, the proposal may be negotiable insofar as it would not reveal any information concerning which employees will be tested.
We cannot determine, based on the record, which interpretation the Union intends. Consequently, we will dismiss the petition for review as it relates to Proposal 12B because the Union has not created a record on which we can determine the negotiability of the proposal.
XX. Order
The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposals 1, 2B, the first three sentences of Proposal 2C, the first sentence of Proposal 2D, the second introductory paragraph of Proposal 4, the portion of subsection 1 of Proposal 4F we have found negotiable, subsections 2 and 3 of Proposal 4F, the first introductory paragraph of Proposal 5, Sections B, C and F of Proposal 5, Sections B and D of Proposal 6, Proposal 7C, the first sentence of Proposal 7D, Proposal 9B, and the first sentence of Proposal 11.(20)
The petition for review as to the fourth sentence of Proposal 2C, the third sentence of Proposal 2D, the first introductory paragraph of Proposal 4 and subsections 4A-E and 4G-H of Proposal 4, the portion of subsection 1 of Proposal 4F we have found nonnegotiable, Proposal 4I, Proposal 4J, Sections A, D and E of Proposal 5, Sections A and C of Proposal 6, Proposal 7A, Proposal 7B, the second sentence of Proposal 7D, Proposal 8, Proposal 9A, Proposal 10, the second sentence of Proposal 11, Proposal 12A and Proposal 12B, is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. Member Talkin's dissenting opinions as to a portion of Proposal 2D and as to Proposal 8 are set forth at footnotes 8 and 19, respectively.
2. The Authority directed the parties to file supplemental briefs addressing the applicability of court decisions issued during the pendency of this case that involved Federal agency drug testing programs. Both the Union and the Agency filed supplemental briefs, which we have considered. In its supplemental brief, the Union requested withdrawal of portions of Proposals 2B and 4I. The request is granted. Additionally, in a separate letter to the Authority, the Union requested withdrawal of Proposals 2A and 3 in their entirety and a portion of Proposal 1. That request is granted. Accordingly, we will not consider the withdrawn portions of Proposals 1, 2B and 4I or Proposals 2A and 3.
Additionally, in its petition for review, the Union argued generally that its proposals constitute negotiable appropriate arrangements. The Union also requested that any portions of its proposals that the Authority finds nonnegotiable be severed from any portions of proposals that are found to be negotiable. We will consider the Union's appropriate arrangements contention and sever the proposals, where appropriate.
3. The Union withdrew the portion of the proposal referencing the U.S. Constitution. We will not consider it further.
4. The Union withdrew the following language of the proposal, which we will not address further: "and have them approved in writing by the next higher level of supervision."
5. Proposal 2A, which was withdrawn by the Union, stated that no employee would be subject to drug testing unless there was a reasonable, articulable suspicion to believe the employee was under the influence of illegal drugs, or the testing was a voluntary part of follow-up to counseling or rehabilitation.
6. The disputed sentences of the proposal have been numbered for ease of decision-making.
7. Section I.7 of the Plan provides as follows:
If an employee believes his or her position has been wrongly designated a test designated position (TDP), that employee may file an administrative appeal to the designated official who has authority to remove the employee from the TDP list. The appeal must be submitted by the employee, in writing, to the designated official within 15 days of notification, setting forth all relevant information. The designated official shall review the appeal based upon the criteria applied in designating the employee's position as a TDP. The official's decision is final and is not subject to further administrative review.
8. For the reasons more fully discussed in her dissenting opinions in National Park Service and Sierra Army Depot, Member Talkin would not find the minimum 2-hour notice requirement to be an impediment that would either undermine the Agency's ability to conduct random drug testing of employees in sensitive positions or frustrate the purpose of detecting illegal drug use. Member Talkin would find nothing in either the language of the proposal or the Union's explanation to suggest that the "minimum" notice requirement is to be interpreted in anything other than a reasonable manner and, further, no indication that the time spent travelling to the test site would be sufficiently lengthy as to affect the reliability of any subsequent drug tests. Member Talkin would also note that Part II, section .8E of the Agency's Plan itself contemplates advance notification of random drug testing inasmuch as that portion of the Plan states that notification preferably is to be given within 2 hours of a scheduled drug test. Compare American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 37 FLRA 1456, 1467-68 (1990) (Member Talkin, concurring) (Department of the Interior) (24-hour notice period creates a greater likelihood that the efficacy of the testing program might be frustrated). Additionally, although unnecessary to her disposition, Member Talkin would find that the potential benefits to employees of a limited notice period prior to undergoing a drug test outweigh the burdens imposed on the Agency.
9. Sections F, I and J of Proposal 4 are addressed separately in the following sections of our decision.
10. Member Talkin declined to interpret the proposal in this manner but, rather, believed that an alternative interpretation discussed in that decision was a more reasonable interpretation.
11. The Union withdrew the portion of the proposal stating "at agency expense." Additionally, in its petition for review the Union made minor corrections to two words in the proposal, changing "appropriated" to "appropriate" in the second sentence, and "In" to "If" at the beginning of the third sentence. The Agency did not object to these corrections.
12. The proposal appears as corrected by the Union in its petition for review.
13. The Agency inadvertently referred to section 2.1(e) of the Guidelines, rather than section 2.2(e).
14. Section 4(c) of Executive Order 12564 provides, in pertinent part:
Procedures for providing urine specimens must allow individual privacy, unless the agency has reason to believe that a particular individual may alter or substitute the specimen to be provided.
Section 2.2(e) of the Guidelines provides:
Procedures for collecting urine specimens shall allow individual privacy unless there is reason to believe that a particular individual may alter or substitute the specimen to be provided.
15. The Union inadvertently referred to Section C, rather than Section B. It is clear from the Union's arguments, however, that it intended to provide an explanation of Section B.
16. Both the Union's petition for review and the Agency's statement of position refer to the last word of the second part as "programs." However, as it appears that the Union intended to use the word "problems," and as the Agency has interpreted it in such a manner, we will interpret the proposal as if the latter word had been used.
17. Section 5(c) of Executive Order 12564 states:
Agencies shall not allow any employee to remain on duty in a sensitive position who is found to use illegal drugs, prior to the successful completion of rehabilitation through an Employee Assistance Program. However, as part of a rehabilitation or counseling program, the head of an Executive agency may, in his or her discretion, allow an employee to return to duty in a sensitive position if it is determined that this action would not pose a danger to public health or safety or the national security.
18. See, for example, Employee Drug Testing: A Single Agency Is Needed to Manage Federal Employee Drug Testing, GAO/GGD-91-25, January 1991, and Drug Testing: Action by Certain Agencies When Employees Test Positive for Illegal Drugs, GA0/GGD-90-56FS, April 1990.
19. For the reasons stated in her dissenting opinions in Department of the Army, 42 FLRA at 559, and Department of Education, 38 FLRA at 1119-22, Member Talkin would find Proposal 8 negotiable on the grounds that the Agency's inability to obtain written, advance consent from employees would not prevent the Agency from otherwise lawfully subjecting employees to drug testing. Member Talkin would also find that the proposal constitutes a negotiable appropriate arrangement, even assuming the proposal could be read as directly interfering with the Agency's right to determine its internal security practices, for the reasons more fully expressed in her dissent in Department of the Army.
20. In finding these proposals to be negotiable, we make no judgment as to their merits.