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  30 FLRA NO. 117
 30 FLRA 1088

 27 JAN 1988


INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, LODGE NO. 282

     Unions

     and

DEPARTMENT OF THE ARMY
HEADQUARTERS,  I CORPS
FORT LEWIS, WASHINGTON

     Agency

Case No. O-NG-1277

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(D) and (E) of the Federal
Service Labor - Management Relations Statute (the Statute) and
concerns the negotiability of a proposal which limits management
to testing employees for drug abuse only on the basis of probable
cause. The effect of the proposal is to preclude management from
testing employees on a random basis. We find that the proposal is
outside the duty to bargain because it directly interferes with
management's right to determine its internal security practices
under section 7106(a)(1) of the Statute.

II. Background

     On February 10, 1986, the Department of the Army promulgated
regulations implementing a Department of Defense Directive
concerning civilian employee drug abuse testing. Interim Change
No. Ill to Army Regulation 600-85, Alcohol and Drug Abuse
Prevention and Control Program (Interim Change to AR 600-85). The
proposal in dispute in this case was offered by the Union in
connection with bargaining on the implementation of the Interim
Change to AR 600-85, which established a drug abuse testing
program for civilian employees in critical jobs.

     In National Federation of Federal Employees, Local 15 and
Department of the Army, U.S. Army Armament, Munitions and
Chemical Command, Rock Island, Illinois, 30  FLRA  No. 115
(1988), we discussed the provisions of the Interim Change to AR
600-85 and outlined in detail subsequent events having direct
relevance to drug testing programs in the Executive Branch of the
Federal Government in general and to the Army drug testing
program in particular. Specifically, we addressed: (1) the
issuance of Executive Order 12564, entitled "Drug - Free Federal
Workplace"; (2) the issuance of Federal Personnel Manual Letter
792-16 (November 28, 1986), implementing section 6(a)(1) of the
Executive Order; (3) the publication of the proposed "Scientific
and Technical Guidelines for Drug Testing Programs," by the
Department of Health and Human Services, pursuant to Section 4(d)
of the Executive Order; and (4) the enactment of section 503 of
the Supplemental Appropriations Act of 1987, Pub. L. No. 100-71,
101 Stat. 391, 468 (July 11, 1987). We noted that the Authority
had invited interested parties to file amicus briefs addressing
the negotiability of proposals relating to various aspects of
agency drug testing programs. See U.S. Army Armament, Munitions
and Chemical Command, slip op. at 2-5.

     We also discussed Federal court litigation involving
challenges to the constitutionality of the Army's drug testing
program. Consistent with the decision of the U.S. Court of
Appeals for the District of Columbia Circuit in NFFE v.
Weinberger, 818 F.2d 935 (D.C. Cir. 1987), we concluded that the
only issues properly before us concerned the negotiability of
union proposals, not the legality of drug testing in the Federal
Government. Consequently, to the extent that the
constitutionality of the Army's drug testing program is raised in
this case, we will not consider that issue. Rather, for purposes
of decisions which include this issue, we will presume the
validity of the Executive Order and agency drug testing programs.
See U.S. Army Armament, Munitions and Chemical Command, slip op.
at 5-7.

III. Proposal

     Section 9. All testing will be done only for probable
cause.

A. Positions of the Parties

     The Agency contends that the Union's proposal conflicts with
the Agency's right to determine its internal security practices
by placing a "condition precedent" on the exercise of that right
and by expressly limiting the Agency's right to test
randomly or in conjunction with an accident or safety
investigation. The Agency argues that the random testing of
employees in critical positions is an essential part of the
Agency's overall drug testing program which is designed to
maintain national security and the internal security of the
Agency. The Agency asserts that the Union's proposal would
prevent the Agency from using the technique it chooses to
effectuate the Agency's internal security system of maintaining a
drug-free workforce in critical positions.

     The Agency also contends that the proposal conflicts with an
agency regulation which is supported by a compelling need. The
Agency states that Army Regulation 600-85, paragraph 5-14e(1)(b)
establishes testing on a random basis. The Agency states,
further, that paragraph 5-14e(1)(c) and (d) permits testing when
there is probable cause and in conjunction with an accident or
safety investigation. The Agency maintains that the wording of
the proposal and the Union's statement of intent clearly indicate
that the proposal conflicts with the Army regulation. The Agency
argues that the Army regulation is essential to the
accomplishment of the Agency's security mission because the
Agency would be unable to execute the drug testing program with
any degree of effectiveness without the requirements of the
regulation.

     Finally, the Agency contends that the Union's proposal is
neither a procedure nor an appropriate arrangement. The Agency
asserts that the proposal removes an essential element from the
Agency's internal security plan, thus, leaving the Agency with
little discretion to determine the plan. The Agency maintains
that the negative impact on management's ability to maintain an
effective and efficient Government is significant and it is not
outweighed by any benefits derived from the proposal.

     The Union contends that the selection of employees for
urinalysis testing on a periodic and random basis violates the
employee's rights under the Fourth Amendment of the United States
Constitution to protection from unwarranted search and seizure,
privacy, and due process. The Union states that 'the Army has the
right to test under probable cause if they believe an employee is
under the influence of a controlled substance., Petition for
Review at 1.

B. Discussion

     By limiting management to testing employees for use of
illegal drugs on the basis of probable cause, the effect of this proposal is to preclude testing of employees on a random
basis as provided in the Interim Change to AR 600-85, Paragraph
5-14e(1)(b). In U.S. Army Armament, Munitions and Chemical
Command, we found that random testing of employees in critical
positions was a part of the Agency's plan to secure or safeguard
its physical property against internal and external risks, to
prevent improper or unauthorized disclosure of information, or to
prevent the disruption of the Agency's activities. We concluded
that by limiting management to testing employees only on the
basis of probable cause, thereby precluding random testing, the
proposal in that case directly interfered with management's right
to determine its internal security practices under section
7106(a)(1) of the Statute.

     Because the proposal in this case has the same effect as
Proposal I in U.S. Army Armament, Munitions and Chemical Command,
we conclude that the proposal is outside the duty to bargain for
the reasons set forth in that case. The Union did not contend
that the proposal in this case is an appropriate arrangement
within the meaning of section 7106 (b)(3) of the Statute and we
have not considered that issue. See U.S. Army Armament, Munitions
and Chemical Command, slip op. at 12-13, for a discussion of the
applicability of section 7106(b)(3) to a similar proposal. In
light of our conclusion, we do not address the Agency's argument
that the proposal is nonnegotiable because it conflicts with an
Agency regulation for which there is a compelling need.

IV. Order

     The Union's petition for review is dismissed.

Issued, Washington, D.C.,January 27, 1988.

Jerry L. Calhoun,        Chairman

Jean Mckee,                Member


FEDERAL LABOR RELATIONS AUTHORITY

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