[ v31 p226 ]
31:0226(24)NG
The decision of the Authority follows:
31 FLRA NO. 24
31 FLRA 226
22 FEB 1988
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 178
Union
and
U.S. ARMY ABERDEEN PROVING GROUND
INSTALLATION SUPPORT ACTIVITY
Agency
Case No. O-NG-1324
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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 seven Proposals. 1 It presents
issues relating to the negotiability of proposals concerning the
Agency's testing of certain selected categories of civilian
employees for drug abuse.
We find that Proposal 2, which provides that no employee
will be subjected to urinalysis on a punitive basis, is
negotiable because it merely requires the Agency to exercise its
rights in accordance with Executive Order 12564. We find that
Proposal 3, which requires employees who object to urinalysis to
be reassigned in certain circumstances and employees who are
reassigned to be given a 180-day training period, is
nonnegotiable because it directly interferes with management's
rights to assign employees under section 7106(a)(2)(A), to assign
work under section 7106(a)(2)(B), and to make selections for
filling positions under section 7106(a)(2)(C), and is not an
"arrangement" for employees adversely affected by the exercise of
management's rights within the meaning of section
7106(b)(3). We find Proposal 4, providing that medical
documentation which demonstrates legal drug use by an employee
shall be presumed to be a valid explanation for a positive test
result, to be a negotiable procedure under section 7106(b)(2). We
find Proposals 5 and 7, which require additional test samples to
be taken before an employee is deemed to have a positive field
test, to be outside the duty to bargain under section 7117(a)(1)
because they are inconsistent with the requirements of Executive
Order 12564. We find Proposal 6, which provides for retention of
a portion of the urine sample for later testing if requested by
the employee, to be a negotiable procedure under section
7106(b)(2) of the Statute. Finally, as to Proposal 8, which
provides for no direct observation except in specified
circumstances, we find that the petition for review should be
dismissed because the Union did not provide the information
necessary for the Authority to make a negotiability
determination.
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). The proposals in
dispute in this case were offered by the Union in connection with
bargaining on the implementation of the Interim Change, 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 (FPM)
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. 100-71, 101 Stat. 391, 468 (July 11, 1987). We also 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
ofdecisions which include this issue, we will rely on 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.
We note, finally, that as of the date of this decision, the
Department of Health and Human Services has not published final
regulations in the Federal Register.
III. Proposal 2
Section 5: Under no circumstances will an employee be
subjected to urinalysis testing as a punitive measure.
A. Positions of the Parties
The Agency contends that Proposal 2 violates its right to
determine its internal security practices because it subjects
management's determination of which employees are selected for
drug testing to an arbitrator's judgment. The Agency argues that
under this proposal, an employee could grieve his/her selection
for the test and could invalidate the test. The Agency contends
that there is a compelling need for the Interim Change to AR
600-85 and that to the extent that the proposals conflict with
the Interim Change, they are also barred by section 7117(a)(2) of
the Statute. The Agency finally contends that the Union has not
established either the detrimental effect of the Interim Change
to AR 600-85 or the manner in which its proposals address or
compensate for any alleged adverse effects of the
Interim Change. specifically, the Agency argues that Proposal 2
excessively interferes with management's right to determine its
internal security practices by providing the Union with a right
to challenge management's decision as to which employees should
be selected for testing.
The Union contends that Proposal 2 is consistent with law
and is intended to prevent misuse of the drug testing procedure.
The Union also contends that Proposal 2 is an appropriate
arrangement for unit employees who are adversely affected by
management use of the drug testing selection process for punitive
reasons.
B. Discussion
We conclude that Proposal 2 is within the duty to bargain
because it requires management to exercise its right to determine
its internal security practices in accordance with law.
In National Federation of Federal Employees, Local 1437 and
U.S. Army Armament Research, Development and Engineering Center,
Dover, New Jersey, 31 FLRA No. 16 (1988), we concluded that
Proposal 4, a proposal, which also provided that no employee will
be subjected to urinalysis as a punitive measure, was within the
duty to bargain. We found that the proposal required only that
the selection of employees for drug testing be in accordance with
law. We rejected the Agency's argument that the proposal was
nonnegotiable because it subjected the exercise of a management
right to review by an arbitrator. We concluded that a proposal
providing for an arbitrator to examine the exercise of a
management right in order to determine whether it complies with
applicable law is within the duty to bargain. We conclude,
consistent with our decision in U.S. Army Armament Research,
Development and Engineering Center, that Proposal 2 does not
interfere with management's right under section 7106(a)(1) to
determine its internal security practices. Rather, Proposal 2
requires that selection of employees for drug testing be in
accordance with law and is within the duty to bargain.
IV. Proposal 3
Section 7: Employees who object to submitting to a
urinalysis as a condition of employment shall, upon request, be
given the right to a lateral reassignment into a job
which is not subject to urinalysis testing, which management
intends to fill, and for which the employee qualifies. This
employee's right is conditional on satisfactory employee
performance in his/her present job. All employees will be
informed of this right prior to being asked to sign DA Form
5019-R (condition of employment for certain civilian positions
identified as critical under the drug abuse testing program).
Employees who exercise this right will be given a 180 day
training period.
A. Positions of the Parties
The Agency contends that the first part of Proposal 3 is
nonnegotiable under section 7117(a)(1) because it is inconsistent
with Requirement 4 of subchapter 1-4, chapter 335 of the FPM
which provides that management may select applicants from "other
appropriate sources" in filling vacancies. The Agency also
contends that the proposal violates its rights under section
7106(a)(2)(A) and (B) to assign employees and assign work by
requiring the reassignment of employees at their request. The
Agency also argues that the last sentence of the proposal, which
provides that employees selected will be given training, violates
its right under section 7106(a)(2)(B) of the Statute to assign
work. In addition, the Agency contends that Proposal 3 conflicts
with the Interim Change to AR 600-85 which provides for voluntary
or involuntary reassignment, demotion, or removal from the
Federal service for employees who refuse to sign the Condition of
Employment form (paragraph 5-14c(4)). Finally, the Agency argues
that the proposal does not constitute an appropriate arrangement
because it excessively interferes with its rights to select and
assign work.
The Union contends that Proposal 3 is negotiable as an
appropriate arrangement for employees who are adversely affected
by the assignment to a position which requires drug testing. The
Union argues that the proposal does not excessively interfere
with management's rights because the proposal only requires the
Agency to fill vacant positions which it intends to fill and
preserves management's right to determine whether employees are
qualified for those positions. Finally, the Union argues that
affording employees a 180-day training period does not interfere
with management's right under section 7106(a)(1) to determine its
internal security practices.
B. Discussion
We conclude that Proposal 3 is outside the duty to bargain.
Where an employee objects to submitting to urinalysis, the first
portion of Proposal 3 requires management to grant that
employee's request for lateral reassignment to a position which
does not require drug testing. By requiring management to
reassign employees, Proposal 3 directly interferes with the
exercise of management's right to assign employees under section
7106(a)(2)(A) of the Statute. See, for example, American
Federation of Government Employees, AFL - CIO, Local 2635 and
Naval Communications Unit Cutler, East Machias, Maine, 30 FLRA
41 (1987) (Provision 1), where the Authority found that a
provision which required management to make a reasonable effort
to reassign employees whose positions are eliminated directly
interferes with management's right to assign employees.
We also conclude that the first sentence of Proposal 3
directly interferes with management's right under section
7106(a)(2)(C) to select from any appropriate source to fill a
vacant position. By requiring management to fill a position by
reassignment, even where the specified conditions are met, the
proposal precludes management from exercising its right to fill
the position from other sources. See, for example, New York State
Nurses Association and Veterans Administration, Bronx Medical
Center, 30 FLRA 706 (1987) (Proposal 16). In that case, we
found that a proposal which required the agency to offer an
employee returning from a leave of absence the position he or she
previously held was nonnegotiable under section 7106(a)(2)(C)
because it prevented the agency from filling the returning
employee's position with applicants from any other source.
Because the second and third sentences of Proposal 3 are
dependent on the negotiability of the first sentence, we conclude
that these sentences are also outside the duty to bargain. See,
for example, American Federation of Government Employees Council
214, AFL - CIO and Department of Defense, Department of the Air
Force, Air Force Logistics Command, 30 FLRA No. 112 (1988)
(Proposal 5). Because we have found that this portion of the
proposal directly interferes with management rights, we find that
it is unnecessary to address the Agency's contentions regarding
FPM, chapter 335, subchapter 1-4, Requirement 4.
The last sentence of Proposal 3 requires management to
provide an employee who has been reassigned with a 180-day
training period designed to instruct the employee in the duties
of the new position. Proposals which require management
to provide formal training during duty hours are outside the duty
to bargain because they infringe on management's right to assign
work under section 7106(a)(2)(B) of the Statute. See, for
example, National Federation of Federal Employees, Local 2052 and
Department of the Interior, Bureau of Land Management, Boise
District Office, 30 FLRA No. 93 (1987) (Proposal 16), and the
cases cited there.
Proposal 3 is, therefore, outside the duty to bargain unless
it constitutes an appropriate arrangement within the meaning of
section 7106(b)(3) of the Statute. To determine whether the
proposal constitutes an appropriate arrangement, we must
determine whether the proposal is (1) intended to be an
arrangement for employees who are adversely affected by the
exercise of a management right, and (2) appropriate because it
does not excessively interfere with the exercise of management's
right. National Association of Government Employees, Local R14-87
and Kansas Army National Guard, 21 FLRA 24 (1986).
In Kansas Army National Guard, the Authority stated that in
determining whether a proposal constituted an "arrangement" for
adversely affected employees, it would be necessary to consider:
(1) the management right claimed to produce the adverse effect,
(2) the effects or foreseeable effects on employees which flow
from the exercise of that right, and (3) how those effects are
adverse. In that case, the Authority found that a provision
requiring repromotion of employees demoted in a reduction in
force (RIF) was an "arrangement" for employees adversely affected
by management's right to lay off. The effects on employees of
management's exercise of its right were clear: demotion or loss
of a job. There was no question as to the adversity of those
consequences; employees were deprived of their positions by
management action, an event over which they had no control.
The establishment of a drug testing program constitutes an
exercise of management's right to determine its internal security
practices. The effect of drug testing on employees is clear:
employees will be required to provide a urine sample for testing.
This proposal, however, is not aimed at ameliorating the adverse
effect of management's decision to require drug testing. The
proposal is an attempt to accommodate employees who "object" to
drug testing. The event which triggers the Agency's obligations
under the proposal is not its decision to require drug testing,
but rather the employee's decision to object to drug testing.
Once the employee objects to submitting to urinalysis, the
proposal requires the Agency to laterally reassign the
employee to a position which is not subject to drug testing.
Therefore, this proposal is an effort to require the Agency to
accommodate employees' personal perferences, not an arrangement
for employees adversely affected by a management action.
The adverse effects which the proposal is an attempt to
ameliorate are those which stem from a choice made totally and
completely by the employee, not directly from the exercise of the
management right to require drug testing. This proposal is
therefore unlike Proposal 3 in U.S. Army Armament, Munitions and
Chemical Command, which required the Agency to provide safeguards
to assure testing would be performed by qualified personnel. That
proposal was an appropriate arrangement for employees who were
adversely affected by management's decision to do the actual drug
test, not by a decision of the employees themselves.
We conclude, therefore, that the proposal that the Agency
reassign an employee is not aimed at the consequences of
management's requirement that employees submit to urinalysis, but
rather is aimed at the results of employees' refusal to submit to
the test. Accordingly, we find that Proposal 3 does not
constitute an "arrangement" for adversely affected employees
within the meaning of section 7106(b)(3) of the Statute.
Consequently, it is unnecessary for us to determine whether the
proposal is an "appropriate" arrangement within the meaning of
section 7106(b)(3).
V. Proposal 4
Section 8: Employees shall not be required to disclose the
legitimate use of a specific drug at the outset of the program.
Employees will have an opportunity to provide documentation
supporting legitimate usage upon a positive test result. This
documentation shall be presumed to be a valid explanation of the
positive urinalysis.
(Only the underlined portion is in dispute.)
A. Positions of the Parties
The Agency contends that the last sentence of Proposal 4
directly interferes with management's right under section
7106(a)(1) to determine its internal security practices "by
requiring management to accept any documentation supplied by an
employee as valid justification for a positive drug
test." Agency Response at 7 (emphasis in original). The Agency
argues that the proposal prevents management from establishing
and implementing its drug testing program.
The Union contends that any documents submitted must. show
that the employee is taking legally prescribed drugs for a
medical problem.
B. Discussion
We conclude that the last sentence of Proposal 4 is a
negotiable procedure under section 7106(b)(2) of the Statute.
Section 4(b) of Executive Order 12564 states that "(b)efore
conducting a drug test, the agency shall inform the employee to
be tested of the opportunity to submit medical documentation that
may support a legitimate use for a specific drug." Section 5(f)
states that "(p)ositive drug test results may be rebutted by
other evidence that an employee has not used illegal drugs."
Section 7 (c) states that "(t)he term 'illegal drugs' does not
mean the use of a controlled substance pursuant to a valid
prescription or other uses authorized by law." When read
together, these sections of the Executive Order recognize that
the use of other legally prescribed drugs may explain a positive
test and that medical documentation is relevant to the question
of whether an employee testing positive has used illegal drugs.
These sections permit the use of this legal documentation and
indicate that it may be used to rebut positive test results.
Based on the Union's statements as to the meaning of this
proposal as set forth in its petition for review, we find that
the Agency has misinterpreted the intent of the proposal. Union
Petition for Review at 4. Nothing in the record shows that the
Union intends the term "documentation" in the proposal to mean
anything other than the "medical documentation" referred to in
the Executive Order. We conclude, therefore, that the proposal
would provide employees with an opportunity to submit medical
documentation stating the specific reason for the positive
test.
Proposal 4 creates a presumption that medical documentation
submitted by an employee stating the reason for the positive test
is valid. This presumption does not conflict with the Executive
Order because the Executive Order specifically provides for such
documentation. Moreover, we construe the presumption created by
this proposal to be rebuttable by the Agency. As with other
rebuttable presumptions, it merely requires the Agency
to accept valid medical documentation when it has no basis to
rebut that documentation. We conclude, therefore, that the last
sentence of Proposal 4 does not directly interfere with
management's right to determine its internal security practices
but is a negotiable procedure under section 7106(b)(2) of the
Statute.
VI. Proposals 5 and 6
Proposal 5
Section 9: In the event of a positive test field result, the
employer will administer two additional field tests spaced at
least twenty-four hours apart. All three tests must be positive
before an employee is deemed to have a positive field test.
Proposal 6
Section 11: Upon a positive urinalysis test, each sample
will be divided with half being sent for confirmatory testing at
a remote laboratory and half being retained in freezer storage at
the Office of Alcohol Abuse & Drug Rehabilitation Center. Upon a
positive confirmation of the first sample, the employee shall
have the option of having a test performed on the retained sample
by either a military facility or by a laboratory of the
employee's choosing. The employer shall pay the cost of each
retesting.
A. Positions of the Parties
The Agency contends that these proposals restrict the
methods and means by which the drug testing program is conducted
and, thereby, directly interfere with management's rights (1) to
determine its internal security practices under section
7106(a)(1) of the Statute; and (2) to determine the technology,
methods, and means of performing its work under section
7106(b)(1). In addition, the Agency contends that Proposal 5
interferes with its right to determine its internal security
practices because the requirement that an employee submit three
separate positive samples over a 2-day period could nullify the
purpose of the drug testing program if the drug dissipated over
that time period. The Agency also argues that Proposal 6
interferes with its right to determine its internal security
practices because the proposal limits the amount of the
sample to be tested. The Agency maintains that the proposal would
increase the likelihood that there will not be a sufficient
sample to conduct a test.
The Agency argues that the Union has not established either
the adverse effect of the Interim Change to AR 600-85 or the
specific benefit to employees of the proposals. The Agency also
argues that Proposal 5 excessively interferes with its statutory
rights and that the benefit provided by the proposals to
bargaining unit employees is minimal because the drug testing
procedure contained in the Interim Change to AR 600-85 provides
for confirmatory testing. As to Proposal 6, the Agency contends
that the minimal value to bargaining unit employees of retaining
a portion of the sample to have tested at the Agency's expense
does not justify the increased expense, particularly in the light
of the fact that the Interim Change to AR 600-85 already provides
for confirmation of the field test. Finally, the Agency contends
that the proposals conflict with the Interim Change to AR 600-85,
a regulation for which a compelling need exists.
The Union contends that the proposals are negotiable as
procedures, and that they do not interfere with management's
right under section 7106(a)(1) to determine internal security
practices or its right under section 7106(b)(1) to establish the
technology, methods, and means of performing its work. Further,
the Union argues that the proposals do not conflict with the
Interim Change to AR 600-85. Finally, the Union argues that the
proposals are appropriate arrangements for unit employees who are
adversely affected by the potential for false-positive test
results.
B. Discussion
Proposal 5
We conclude that Proposal 5 is outside the duty to bargain
under section 7117(a)(1) because it conflicts with Executive
Order 12564.
Proposal 5 is to the same effect as Proposal 9 in U.S. Army
Armament Research, Development and Engineering Center. That
proposal precluded any confirmatory test until three tests
conducted over a 2-day period showed a positive result. We
concluded that the proposal precluded confirmation of the initial
positive result where either the second or third field test
result was not positive. We found that the proposal conflicted
with the requirement of the Executive Order that
appropriate action be taken against employees whose initial
positive sample is confirmed by a second test of the same sample.
Consequently, we found that the proposal was inconsistent with
the Executive Order. Because we found that the Executive Order
constitutes law within the meaning of section 7117(a)(1), we
concluded that the proposal was outside the duty to bargain under
section 7117(a)(1) of the Statute. Consistent with U.S. Army
Armament Research, Development and Engineering Center, we
conclude that Proposal 5 in this case is inconsistent with law
and therefore outside the duty to bargain under section
7117(a)(1) of the Statute.
Proposal 6
We find that Proposal 6 is a negotiable procedure under
section 7106(b)(2) of the Statute.
Proposal 6 is to the same effect as Proposal 10 in U.S. Army
Armament Research, Development and Engineering Center, which we
found to be a negotiable procedure. That proposal also provided
for retention of a portion of the sample and later retesting at
the employee's request. We concluded that the proposal did not
prevent management from using the drug testing techniques it had
adopted, and did not directly interfere with management's right
under section 7106(a)(1) to determine its internal security
practices. We also concluded that even assuming drug testing
constituted the agency's work, the proposal did not prescribe
either the methods or the equipment to be used in drug testing
and therefore did not interfere with management's right under
section 7106(b)(1) to determine the methods and means of
performing its work. Finally, we concluded that the Agency had
not shown that a conflict existed between its regulation and the
proposal.
Consistent with our decision in U.S. Army Armament Research,
Development, and Engineering Center, we conclude that Proposal 6,
which also requires retention of a portion of a test sample for
possible subsequent testing at Agency expense, does not directly
interfere with management's right under section 7106(a)(1) to
determine its internal security practices or with its right under
section 7106(b)(1) to determine the methods and means of
performing its work. Further, we find that the Agency has not
shown that Proposal 6 conflicts with its regulation and, thus,
that the proposal is not barred by an Agency regulation for which
a compelling need exists. Therefore, we conclude that Proposal 6
is a negotiable procedure under section 7106(b)(2) of the
Statute.
VII. Proposal 7
Section 12: If a positive field test result (as defined in
Section 9) of an employee is not confirmed as positive by a
certified laboratory or by admission of the employee, the result
may not be used to take further action against the employee and
any temporary action must be rescinded and all documents relating
there to (sic) must be destroyed.
A. Positions of the Parties
The Agency contends that Proposal 7 violates management's
right to determine its internal security practices under section
7106(a)(1) and its right under section 7106(a)(2)(B) to
discipline employees. The Agency argues that the proposal
interferes with its statutory rights because adoption of the
proposal would effectively bar any future changes to the Interim
Change to AR 600-85 during the term of the parties' agreement.
The Union contends that Proposal 7 does not prevent the
Agency from changing its regulations in the future. Additionally,
the Union contends that the proposal constitutes an appropriate
arrangement for employees adversely affected by a false-positive
field test.
B. Discussion
We conclude that Proposal 7 is outside the duty to bargain
under section 7117(a)(1) of the Statute.
Proposal 7 is dependent on the provisions governing a
positive field test set forth in Proposal 5. We found that
Proposal 5 is outside the duty to bargain under section
7117(a)(1) because it precluded any confirmatory test until three
tests conducted over a 2-day period showed a positive test
result, thereby precluding, in some circumstances, the
confirmation of an initial positive test result consistent with
the requirements of Executive Order 12564. Because Proposal 7 is
dependent on Proposal 5, we also find it to be outside the duty
to bargain under section 7117(a)(1). See Proposal 11 in U.S. Army
Armament Research, Development and Engineering Center.
VIII. Proposal 8
Section 18: Employees will not be directly observed while
they are providing a sample unless there is just cause to believe
that the employee has tampered, adulterated, or
otherwise has attempted to affect the test results. In this
context, the parties agree that such attempts at deception may be
just cause for disciplinary action.
A. Positions of the Parties
Subsequent to the filing of the Union's petition for review,
the Agency modified the Interim Change to AR 600-85 to reflect
the requirement of Section 4 (c) of Executive Order 12564 that
"(p)rocedures for providing urine specimens must allow individual
privacy, unless the agency has reason to believe that a
particular individual may alter or substitute the specimen to be
provided." The Agency contends that the proposal is moot because
of the issuance of the Executive Order and the Agency's amended
regulation and, therefore, should be dismissed by the Authority.
The Agency now contends that the proposal conflicts with its
right under section 7106 (a) (1) to determine its internal
security practices because the proposal would bind the Agency
during the term of the parties' agreement and preclude changes
required by regulation.
The Union's contentions were directed at the requirement for
direct observation set forth in the Interim Change to AR 600-85
prior to its modification. The Union did not address the modified
regulation.
B. Discussion
We conclude that the petition for review as to Proposal 8
should be dismissed because the Union has not submitted
sufficient information for us to determine the negotiability of
the proposal.
Proposal 8 is identical to Proposal 13 in U.S. Army Armament
Research, Development and Engineering center. In that case, we
concluded that the petition for review as to Proposal 13 should
be dismissed. We reached that conclusion because the Union did
not define the term "just cause" in its proposal. We, therefore,
did not have sufficient information to determine whether that
standard was inconsistent with the standard contained in
Executive Order 12564, which provides for an observer if the
agency has reason to believe that a particular individual may
alter or substitute for the specimen to be provided. The record
in this case also does not provide any explanation of the meaning
of the proposal. We conclude, therefore, that the Union has not
provided us with sufficient information to determine whether the
standard of "just cause" contained in Proposal 8 is
inconsistent with the standard contained in the Executive Order.
Consistent with U.S. Army Armament Research, Development and
Engineering Center, therefore, we find that the petition for
review as to that proposal should be dismissed because the Union
has not created a record on which we can assess the negotiability
of the proposal.
IX. Order
The Agency must upon request, or as otherwise agreed to by
the parties, bargain on Proposals 2, 4, and 6. 2 The petition for
review as to Proposals 3, 5, 7, and 8 is dismissed.
Issued, Washington, D.C.,February 22, 1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote 1 The Agency withdrew its allegation of
nonnegotiability with respect to Proposal 1. Agency Statement
at 3.
Footnote 2 In finding these proposals to be negotiable, we
make no judgment as to their merits.