[ v40 p690 ]
40:0690(61)CA
The decision of the Authority follows:
40 FLRA No. 61
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel and the Charging Party. The Respondents filed an opposition to the exceptions of the General Counsel and Charging Party and cross-exceptions to the Judge's Decision.
The Respondents' opposition and cross-exceptions were, however, untimely and will not be considered. On September 20, 1989, the General Counsel and Charging Party filed exceptions to the Judge's Decision. By motion dated October 2, 1989, the Respondents' representative requested an extension of time in which to file an opposition and cross-exceptions. In response to that request, Respondents were granted until November 9, 1989, in which to file. On November 6, 1989, Respondents filed a motion for an additional extension of time until November 22, 1989, in which to file an opposition and cross-exceptions. This request was granted. Respondents subsequently filed an opposition and cross-exceptions dated November 27, 1989. That filing was accompanied by a letter dated November 27, 1989, which stated:
Respondents made every reasonable effort to comply [with the November 22 filing deadline]; however, the unanticipated severe weather in the late afternoon and early evening of November 23 [sic], and our concern to ensure that employees reached home (in one case, an out of state location) safely on Thanksgiving eve, resulted in our decision, in these circumstances, to file the documents today.
Under section 2429.23(b) of the Authority's regulations, the Authority may waive expired time limits in extraordinary circumstances. However, in our view, the onset of bad weather at the eleventh hour of a second extension of time does not present an extraordinary circumstance that justifies waiver of an expired time limit. See Department of the Treasury, U.S. Customs Service and U.S. Customs Service, Region IX, Chicago, Illinois, 34 FLRA 76 (1989). Therefore, we will not consider the Respondents' opposition and cross-exceptions.
The consolidated complaint alleges that: Respondent Federal Aviation Administration (FAA) violated section 7116(a)(1), (5) and (8) of the Federal Service Labor Management Relations Statute (the Statute) by failing and refusing to provide the Professional Airways Systems Specialists (PASS or Union), the exclusive representative of two bargaining units of FAA employees, with information to which PASS was entitled under section 7114(b)(4) of the Statute; Respondent FAA violated section 7116(a)(1) and (5) by refusing to negotiate with PASS over the impact and implementation of Department of Transportation (DOT) Order 3910.1, Drug-Free Departmental Workplace, and by unilaterally implementing DOT Order 3910.1; and Respondent Department of Transportation (DOT) violated section 7116(a)(1) and (5) by interfering with the bargaining relationship between FAA and PASS by precluding bargaining over the impact and implementation of DOT Order 3910.1 and by directing the implementation of DOT Order 3910.1 notwithstanding the fact that negotiations concerning the Order had not been concluded.
The Judge found that Respondent FAA had violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to provide information to which the Union was entitled under section 7114(b)(4) of the Statute; and that Respondent FAA violated section 7116(a)(1) and (5) of the Statute by declaring certain PASS proposals nonnegotiable and then implementing random drug testing in the PASS bargaining units. The Judge found that no violation had occurred with respect to the remaining allegations and recommended that those portions of the complaint be dismissed.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are affirmed. After consideration of the Judge's Decision, the exceptions of the General Counsel and Charging Party, and the entire record, we adopt the Judge's findings and conclusions only to the extent consistent with our decision.
II. Background
FAA is one of nine operating administrations within DOT. At all times material herein PASS has been the exclusive representative of two bargaining units within FAA: (1) the "AF" unit consisting of approximately 6500 employees and composed primarily of electronic technicians and (2) the "AVN" unit consisting of approximately 350-400 employees and composed of, among others, pilots, co-pilots and flight inspectors. At all times material herein, PASS has held national consultation rights with DOT pursuant to section 7113 of the Statute.
Prior to 1987, FAA had a policy on substance abuse by its employees. G.C. Exhs. 3A and 3B. This policy included provisions for rehabilitation and/or discipline where there was "credible evidence" of use of illicit drugs, alcohol abuse, or other substance abuse. G.C. Exh. 3B. It also included drug screening for substance abuse as part of the annual physical examination required for some employees. G.C. Exhs. 3A and B. While some employees in the AVN unit were subject to screening in conjunction with their periodic
medical examinations, none of the employees in the AF unit were subject to such screening. The record shows, however, that FAA employees, generally, had been subject to testing on the basis of "probable cause" (Tr. 267) or "reasonable cause" (Tr. 335) prior to 1987.
On January 21, 1987, the Secretary of Transportation issued a memorandum announcing DOT's program for a drug-free workplace, which was being developed and implemented in compliance with Executive Order 12564, "Drug-Free Federal Workplace." As recounted in the Judge's Decision, PASS was consulted by DOT during the months that followed concerning the development of the program that culminated in the issuance of DOT Order 3910.1, Drug-Free Departmental Workplace, dated June 29, 1987. By letter dated July 1, 1987, FAA provided PASS with a copy of a "60-day general notice," which advised employees that the drug testing component of the DOT drug program would commence no sooner than 60 days after the date of the notice. G.C. Exhs. 13 and 15. Under this drug testing program, employees in "critical safety and security positions," as well as employees in positions requiring a security clearance of "Top Secret" or higher, would be subject to pre-employment/pre-appointment, periodic, random, reasonable suspicion, follow-up, accident or unsafe practice, and voluntary testing. G.C. Exh. 13. All other civilian employees would be subject to reasonable suspicion, accident or unsafe practice testing, and voluntary testing. Id.
As set forth in the Judge's Decision, PASS and FAA representatives had several conversations during July in which PASS repeatedly expressed its desire to negotiate over the impact and implementation of the drug testing program. There were also discussions between PASS and FAA concerning the desirability of handling the negotiations over drug testing in conjunction with national contract negotiations. FAA took the position that the negotiations concerning drug testing should be handled separately from the national contract negotiations; PASS took the position that they should be combined. By letter dated August 3, 1987, PASS reiterated both its demand to bargain prior to the implementation of the drug screening program and its position that it would be "most efficient to negotiate the particulars of any drug screening program" during contract talks for the AVN and AF units. G.C. Exh. 16.
During a telephone conversation on August 6 or 7, 1987, an FAA representative advised a PASS representative that the "30-day notice," which advised employees who were subject to random drug testing that random testing was to
commence no sooner than 30 days from the date of the notice, was being issued. A copy of the 30-day notice was provided to PASS by both DOT and FAA with cover letters dated August 7, 1987, which indicated that distribution of the notice to covered employees would begin on August 7. While the record establishes that distribution of the notice within FAA began around that date, the record does not establish when the first employee in either of the PASS bargaining units actually received the notice. In a letter dated August 12, 1987, FAA advised PASS that it did not agree that negotiations concerning drug testing should occur in the context of national contract negotiations. In that letter FAA also advised PASS that the drug testing program was scheduled to go into effect as early as September 8 and requested that PASS submit any proposals that it had as soon as possible.
On or about August 19, 1987, FAA and PASS started negotiations for a national contract. Subsequently, on or about August 25, 1987, PASS complained of an incident that had been reported to it in which a list of employees subject to random testing had been publicized. At that point, an FAA representative advised PASS that, although the drug testing program was scheduled to commence on September 8, actual testing of employees in the PASS unit would likely not begin until later in September because of the prerequisite of the issuance of the 30-day notice. The parties recessed so that PASS could prepare proposals concerning drug testing. By letter dated August 26, 1987, PASS sent a request to FAA for information including a complete listing of all incidents of drug-related disciplinary or adverse actions that had occurred in the past three years in the PASS bargaining units and for which the employer had been upheld in either a grievance or an MSPB proceeding. The request specified that the information "should be sanitized in accordance with any Privacy Act provisions." G.C. Exh. 20. FAA subsequently denied the request for this information.
On August 27, 1987, the parties resumed bargaining and PASS presented its first set of drug testing proposals, which are referred to as PASS 1. The parties then recessed so that FAA could study the proposals and discuss them with DOT. When the parties again resumed negotiations on September 3, an FMCS mediator was present at the request of PASS. FAA stated that the first set of PASS proposals were nonnegotiable and PASS presented a second set, which are referred to as PASS 2. After studying those proposals, FAA advised PASS that they raised the same negotiability problems as PASS 1. PASS provided FAA with a written request for written allegations of nonnegotiability. PASS then presented a third set of proposals, which are referred to as PASS 3.
The parties met the next day, September 4, and FAA provided PASS with a written allegation of nonnegotiability declaring some of the proposals in PASS 2 and PASS 3 nonnegotiable based on conflict with DOT Order 3910.1, for which the Agency claimed a compelling need existed, and some nonnegotiable based on other grounds. FAA agreed that a number of the proposals in PASS 2 and PASS 3 were negotiable and the parties discussed those at the meeting that day. While the parties agreed that they were not at impasse, PASS stated that it was going to seek assistance from the Federal Service Impasses Panel (FSIP) and presented FAA with a previously prepared package of material to invoke the assistance of the FSIP. FAA declined to join PASS in requesting assistance from FSIP. The next meeting was scheduled for September 16.
PASS on several occasions requested that the scheduled September 8 implementation date be postponed. FAA consistently took the position that it did not have the authority to change the September 8 implementation date because that date was within the control of DOT, not FAA. While the record establishes that FAA made some inquiry to DOT during the time when negotiations were going on concerning the possibility of a postponement if negotiations were not completed, the record does not establish that FAA made a specific request for a postponement once it was clear that negotiations would not be completed by September 8. Rather, FAA representatives expressed the view that implementation would not occur in the bargaining unit until later in September when individual unit members would become eligible for random testing based on the expiration of the 30-day period from the point at which the 30-day notices were issued to them. By letter dated September 8, PASS requested the Secretary of Transportation to intercede and
order FAA to cease and desist from implementing the drug testing program in the PASS bargaining unit until bargaining had been completed.
The random testing program began within DOT during the week of September 8, although no employees in the PASS bargaining units were actually tested until the week of September 28.
PASS and FAA met again on September 16 with an FMCS mediator present. After a caucus and lunch break, PASS representative Long returned to the meeting and announced that PASS representative Johannssen, who had attended the previous sessions, including the morning session on the 16th, would not meet with FAA. The FMCS mediator, after speaking with Johannssen privately, advised FAA that he was unable to persuade Johannssen to return and he (the mediator) would attempt to arrange another meeting. The meeting adjourned and no further meetings were held.
III. The Administrative Law Judge's Decision
A. The Information Request
The Judge found that FAA violated section 7116(a)(1), (5) and (8) of the Statute by failing to furnish PASS with a complete listing of all drug-related disciplinary/adverse action incidents that had occurred over the past three years in the PASS bargaining units for which FAA had been upheld in either a grievance or MSPB proceeding. The Judge concluded that the information requested did not constitute guidance, counsel or training and was data that was normally maintained by FAA in the regular course of business. The Judge further concluded that disclosure of the requested information was not prohibited by the Privacy Act and that the requested information was necessary within the meaning of section 7114(b)(4) of the Statute.
B.Negotiations Over and Implementation of Drug Testing
The Judge found that the record established that random drug testing was the only aspect of the drug testing program that involved a change in working conditions for employees in the PASS bargaining units. He further found that the record did not establish that random drug testing was implemented for employees in the PASS bargaining units prior to September 28, the date on which the first bargaining unit employee was actually tested. The Judge determined that PASS had abandoned bargaining on
September 16. He concluded that because the implementation date occurred after PASS had abandoned bargaining, FAA had met its bargaining obligations prior to the implementation of random drug testing in the PASS bargaining units. Moreover, he found that DOT could have and was prepared to postpone testing of unit members at the request of FAA. Consequently, he found that neither DOT nor FAA had violated the Statute based solely on the implementation of random drug testing in the PASS bargaining units.
The Judge concluded, however, that FAA violated section 7116(a)(1) and (5) by its actions in declaring certain PASS proposals nonnegotiable and then implementing random drug testing in the PASS bargaining units. Specifically, he found that at the time they were declared nonnegotiable, Proposals 3 and 22C of PASS 2 were negotiable. He further found that Proposal 11 of PASS 2 was negotiable. He concluded that FAA erred in declaring them nonnegotiable and violated section 7116(a)(1) and (5) of the Statute by doing so and then implementing random drug testing in the PASS bargaining units. As to those proposals that FAA declared nonnegotiable based on an asserted conflict with an Agency regulation for which a compelling need exists, the Judge found that they were not properly before him, based on the Supreme Court's decision in FLRA v. Aberdeen Proving Ground, Department of the Army, 108 S. Ct. 1261 (1988) (Aberdeen). He concluded that this was true even with respect to four proposals (Proposals 18A, 22E, 23 and 30A of PASS 2) where the allegation of nonnegotiability had been withdrawn in the statement of position filed by DOT in a companion negotiability proceeding, which has been docketed by the Authority as Case No. 0-NG-1456. The Judge found that because FAA, not DOT, was responsible for the implementation of the drug testing program in the PASS units, it, rather than DOT, was responsible for the violation of section 7116(a)(1) and (5) as a consequence of the declaration that Proposals 3, 11 and 22C of PASS 2 were nonnegotiable and the subsequent implementation of random drug testing in the PASS units.
The Judge concluded that a status quo ante remedy was not appropriate based on the nature of the unfair labor practice and the fact that the random drug testing program involves the interest and safety of the public. As a remedy, the Judge recommended: a cease and desist order; that FAA be required to provide PASS with a complete list, in sanitized form and to the extent permitted by law, of all incidents of drug-related disciplinary or adverse actions that have occurred over the past three years in the PASS bargaining units in which FAA has been upheld in either a grievance or MSPB proceeding; a bargaining order; and a posting of a notice.
IV. Positions of the Parties
A. General Counsel's Exceptions
The General Counsel (GC) excepts to several of the Judge's conclusions. First, the GC excepts to the Judge's conclusion that Proposals 18A, 22E, 23 and 3A of PASS 2 were not properly before him despite DOT's subsequent withdrawal of the original assertion of nonnegotiability. The GC argues that the subsequent withdrawal rendered the negotiability appeal moot and that those four proposals are ripe for review in the unfair labor practice proceeding.
Second, the GC excepts to the Judge's conclusion that neither FAA nor DOT violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing the DOT drug testing program. The GC contends that the Judge's conclusion in this regard is based on "three interdependent conclusions" that the GC contends are erroneous. GC's Brief at 19. Specifically, the GC asserts that the Judge erred in concluding that random testing was the only aspect of the DOT drug testing program that constituted a change in working conditions. Rather, the GC contends, the DOT drug testing program consisted of several components, such as random, periodic, reasonable suspicion, pre-employment/applicant, accident or unsafe practice, voluntary, and follow-up testing; as well as programs for rehabilitation, confidentiality, disciplinary action, employee assistance and training. The GC avers that some or
all of these components constituted a change in working conditions in one or both of the PASS bargaining units.
The GC asserts that the Judge also erred in concluding that implementation of random drug testing did not occur until the point at which the first employee in the PASS bargaining units became eligible for random testing. Rather, the GC asserts that, for collective bargaining purposes, implementation of random drug testing took place on September 8, 1987, which was the point at which the existence of reasonably foreseeable effects of the random drug testing were clear.
Lastly, the GC contends that the Judge's conclusion that PASS abandoned bargaining on September 16 is erroneous. In support, the GC contends that the September 16 meeting was a post-implementation meeting and had no bearing on whether the alleged unilateral implementation of the drug testing program on September 8 violated the Statute. The GC also contends that PASS cannot be faulted for the fact that no meetings occurred after September 16 because, according to the record, the FMCS mediator was responsible for arranging a further meeting.
B. Charging Party's Exceptions
The Charging Party excepts to several of the Judge's conclusions. Specifically, the Charging Party excepts to the Judge's conclusion that random drug testing was the only portion of the DOT Order that constituted a change in working conditions. The Charging Party contends that the DOT program consisted of several components in addition to random testing. Like the GC, the Charging Party also excepts to the Judge's finding that random drug testing was not implemented until September 28. The Charging Party asserts that implementation occurred on September 8, the point at which a reasonably foreseeable impact on bargaining unit employees existed. The Charging Party asserts that from the perspective of employees, bargaining was pointless
as of September 8 as the "DOT program unadorned by negotiated impact and implementation procedures was in effect." Charging Party's Brief at 17. The Charging Party also excepts to the Judge's finding that PASS abandoned bargaining on September 16, contending that the events of that date did not constitute a waiver of bargaining rights on the part of PASS.
The Charging Party excepts to the Judge's finding that DOT could have postponed, and was prepared to postpone, testing of unit members at the request of FAA. The Charging Party contends that the record supports a conclusion that implementation occurred in the face of requests from both FAA and PASS to DOT that it be postponed.
The Charging Party also excepts to the Judge's conclusion that, under Aberdeen, the Authority lacks jurisdiction in this unfair labor practice case to decide whether FAA refused to bargain regarding the four proposals about which a compelling need assertion had been raised initially and subsequently withdrawn. The Charging Party concedes that under Aberdeen the negotiability procedure established by section 7117(b) of the Statute is the exclusive method for adjudicating compelling need allegations but contends that the withdrawal of the allegation of nonnegotiability "obviated the need for a section 7117(b) proceeding." Charging Party's Brief at 23. Consequently, the Charging Party urges that "[t]he Aberdeen rule" does not apply. Id.
The Charging Party excepts to the Judge's conclusion that DOT was not liable for the "bargaining violation" and argues that "DOT should be held liable for the illegal acts of its agent, the FAA, especially where, as here, that agent acted on express instructions of its principal." Id. at 24-25.
Last, the Charging Party excepts to the Judge's conclusion that a status quo ante remedy is inappropriate. The Charging Party contends that the Judge did not establish how such a remedy would threaten public safety and that there is no basis for such a conclusion. The Charging Party asserts that a status quo ante remedy is warranted by the "brazen and fundamental" nature of the violation and as a deterrent to further violations by the Respondents. Id. at 27-29.
V. Analysis and Conclusions
A. The Information Request
No timely exceptions have been filed to the Judge's conclusion that FAA violated section 7116(a)(1), (5) and (8) of the Statute by refusing to provide a sanitized listing of drug-related disciplinary and adverse actions that have occurred over the past three years in the PASS bargaining units and for which FAA has been upheld in either grievance or MSPB proceedings. Therefore, we will adopt the Judge's decision as to that issue.
B.The Change in Conditions of Employment for Employees in the PASS Bargaining Units
The record establishes that DOT Order 3910.1, "Drug-Free Departmental Workplace," transmitted DOT's policies and procedures for implementing Executive Order 12564, "Drug-Free Federal Workplace." G.C. Exh. 14. This DOT Order set forth a comprehensive and centralized program designed to establish and maintain a drug-free workplace and included provisions for drug awareness, drug testing, rehabilitation, employee assistance and disciplinary action programs. Id. Under the DOT Order, the head of each operating administration, such as FAA, was responsible for implementing the directive within his or her organization. Id.
As noted in the "Background" section of this decision, the record establishes that some features of the "Drug-Free Departmental Workplace" program reflected policies and
procedures that previously existed in FAA and the PASS bargaining units. While the record establishes that random drug testing was only one of several interrelated components of the overall program set forth in DOT Order 3910.1, it does not permit any reliable conclusions to be drawn concerning the extent to which the components, other than random drug testing, represented changes in conditions of employment in the PASS bargaining units. Thus, we agree with the Judge that the record does not establish that any of the components of the "Drug-Free Departmental Workplace" program other than random drug testing in fact constituted changes in working conditions in the PASS bargaining units. It is well established that the GC bears the burden of proving that an unfair labor practice has been committed. For example, Letterkenny Army Depot, 35 FLRA 113, 118 (1990).
We now turn to the question of whether the date scheduled for the commencement of the operation of the random drug testing component of the program constituted the implementation of a change in conditions of employment about which PASS had requested to bargain.
Generally, under the Statute, absent a clear and unmistakable waiver of bargaining rights, an agency must afford the exclusive representative of affected employees notice of proposed changes in conditions of employment and an opportunity to bargain over those aspects of the changes that are negotiable. For example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 258, 262 (1991) (SSA, Baltimore). Where parties are engaged in bargaining over a proposed change in conditions of employment, an agency is generally obligated to maintain the status quo pending the completion of the entire bargaining process, including the opportunity to pursue impasse procedures. See, for example, Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 948-50 (1990) (SSA, Region II). Where a bargaining obligation arises by virtue of an agency changing conditions of employment, the agency is required to bargain only over negotiable proposals. For example, SSA, Baltimore, 39 FLRA at 262. Where a union submits bargaining proposals and an agency refuses to bargain over them based on the contention that they are nonnegotiable, the agency acts at its peril if it then implements the proposed change in conditions of employment. Id. at 262-63.
Here, it is not disputed that as of September 8, 1987, FAA and PASS were engaged in bargaining over the impact and
implementation of the DOT drug screening program. In the course of those negotiations, PASS had submitted a number of proposals, some of which FAA had declared nonnegotiable and some of which FAA had conceded were negotiable. Judge's Decision (JD) at 15-16. Additionally, FAA had taken the position at the last bargaining session held prior to the week of September 8 that the parties were not at impasse. JD at 16. In accordance with Authority precedent, if the commencement of the operation of the random drug testing component of the DOT drug-free workplace program, which occurred on or about September 8, represented a change in conditions of employment for bargaining unit employees, a violation of the Statute occurred.
The Judge took the position that implementation of random drug testing with respect to bargaining unit employees did not occur until the first bargaining unit employee became eligible for testing by virtue of the expiration of the 30-day notice period. We disagree. In our view, the random drug testing component of the program was effectively implemented at the point at which operation of that component of the program began. We note that DOT
Order 3910.1 provides:
Under [random] testing, all covered employees will have an equal statistical chance of being selected for testing within a specified time frame. [Random] testing is unannounced and could occur on any scheduled workday.
G.C. Exh. 14. Moreover, the 30-day notice that was provided to employees who were subject to random testing advised employees that "[r]efusal to submit to testing or failure to cooperate with the collection procedures will be grounds for removal from the Federal service." G.C. Exh. 18. A list of "Questions and Answers" that accompanied the 30-day notice
advised:
In the event an employee has not received the 30-day notice and is informed of his or her selection for random testing, he or she should nonetheless report to the collection site and fully cooperate with the collection procedures.
Id.
An FAA representative advised PASS representatives that employees in the PASS units would not actually be tested until later in September because the field structure involved militated against meeting the 30-day notice
requirement by the week of September 8. Testimony establishes that DOT and FAA planned to limit testing in the early days of the program to those geographical areas in which they believed that distribution of the 30-day notice had been accomplished. Tr. 358-59. They also planned to delete the names of any employees who had not been given their 30-day notice from the random lists generated for the purpose of actual testing. Id. Thus, the only assurance given PASS that employees in its bargaining unit would not actually be tested during the initial operation of random testing was based not on the fact that bargaining had not been completed but, rather, on the need to fulfill the 30-day notice requirement. There is no evidence that the program was delayed based on the pendency of bargaining. Compare United States Air Force, Lowry Air Force Base, Denver, Colorado, 22 FLRA 171 (1986) (no violation occurred where, although an implementation date had been announced, the respondent subsequently delayed implementation of the new policy for unit employees until after, and based on, the completion of negotiations). Moreover, in view of the stated policy that, when informed of their selection for testing, employees should "proceed to the collection site and cooperate with the collection procedures," notwithstanding the fact that notice requirements had not been met, employees were effectively subject to, and required to comply with the random drug testing component of the program from its inception on September 8. Additionally, in view of the unannounced nature of random testing and the fact that no general exception had been made for bargaining unit employees pending the completion of bargaining, employees had no basis for concluding that they were not subject to the random testing component of the program from the point at which FAA had announced it would be placed into operation.
Based on the foregoing, we conclude that on or about September 8, 1987, employees in the PASS bargaining unit were subject to a change in their conditions of employment by virtue of the implementation of random drug testing, a highly significant component of the overall drug-free workplace program set forth in DOT Order 3910.1.
In view of this conclusion, we reject the Judge's conclusion that bargaining was concluded prior to the implementation of random drug testing and we find it unnecessary to address his findings and conclusions to the effect that PASS abandoned bargaining on September 16. As we have found that unilateral implementation occurred on or about September 8, the parties' actions subsequent to that point do not cure the breach of the requirement that parties meet their obligation to bargain prior to implementing a change in conditions of employment. For example, SSA, Region II, 35 FLRA at 948. In particular, we note that in this case PASS had specifically requested that bargaining take place "prior to the implementation of any drug screening program" in its bargaining units. G.C. Exh. 16. Consequently, the events that took place on September 16 are irrelevant to a determination of whether a violation of the Statute resulted from the unilateral action that occurred on or about September 8.
In summary, we conclude that a change in conditions of employment for employees in the PASS bargaining units was implemented on or about September 8, 1987, when a significant component of DOT Order 3910.1, random drug testing, became operational.
C.Whether DOT and/or FAA Violated Section 7116(a)(1) and (5) as a Consequence of the Change in Conditions of Employment
The Authority has addressed the question of responsibility for violations of the Statute where different levels within an agency are involved. It is well established that the obligation to bargain with a union holding exclusive representation for employees in a bargaining unit concerning conditions of employment affecting those employees rests at the level of the agency at which exclusive recognition exists. See, for example, Philadelphia Naval Base, Philadelphia Naval Station and Philadelphia Naval Shipyard, 37 FLRA 79, 87-88 (1990); (Philadelphia Naval Base); and Headquarters, Defense Logistics Agency, Washington, D.C., 22 FLRA 875, 878-79 (1986) (DLA, Washington, D.C.). However, when management at a higher level of an agency directs or requires management
at a subordinate level at which exclusive recognition exists to act in a manner that is inconsistent with the subordinate level's bargaining obligations under the Statute, the higher-level management entity violates section 7116(a)(1) and (5) of the Statute. See, for example, U.S. Department of Energy, Washington, D.C., 34 FLRA 361, 366-67 (1990).
Here, recognition rested at the level of FAA, not DOT. Thus, DOT itself had no duty to bargain with PASS concerning the issuance of internal directives to its subordinate levels regarding the drug-free workplace program. See DLA, Washington, D.C., 22 FLRA at 880. Rather, the primary responsibility for fulfilling the duty to bargain with PASS prior to implementation of any changes in conditions of employment rested with FAA. In order to find that DOT committed a violation of the Statute, it would be necessary to establish that DOT prevented FAA from fulfilling its duty to bargain with PASS. In the absence of such a showing, DOT cannot be held to have violated the Statute as alleged.
There is no showing here that DOT ordered FAA to implement the drug-free workplace program while negotiations with PASS were still pending. While the record establishes that DOT controlled the date on which the random drug testing component of the program was to become operational, it does not establish that FAA specifically requested of DOT that the scheduled September 8 implementation date be postponed within the PASS bargaining units. That is, while the record establishes that some conversations occurred between FAA and DOT representatives concerning a postponement, the record does not establish that FAA specifically requested such a delay and that DOT refused. Tr. 365-70, 404-08, 461, and 536-37. Nor does the record establish that DOT had foreclosed such a request from FAA. Consequently, while we are unable to find that DOT was actually prepared to postpone the implementation of the random testing component of the program at the request of FAA, we are also unable to conclude, based on the
record, that a request was actually made by FAA and denied by DOT or that, under the circumstances, a request by FAA would have been futile.
There is no basis in the record of this case to conclude that DOT interfered with the bargaining relationship between FAA and PASS by directing that the random testing component of the drug-free workplace program be implemented notwithstanding the fact that bargaining had not been completed. Compare U.S. Department of Health and Human Services, Public Health Service and Centers of Disease Control, National Institute for Occupational Safety and Health, Appalachian Laboratory for Occupational Safety and Health and American Federation of Government Employees, Local 3430, AFL-CIO, 39 FLRA 1306 (1991) (record supported a conclusion that higher level in an agency directed or required subordinate level to act in a manner that was inconsistent with the subordinate level's bargaining obligations) with Philadelphia Naval Base, 37 FLRA at 87-88 (no showing that organizational level controlling a condition of employment was asked and refused to grant authorization to bargain or ordered level holding exclusive recognition not to bargain over change in conditions of employment).
D.The Allegations Centering on FAA's Declaration That Certain PASS Proposals Were Nonnegotiable
We next address the Judge's findings and conclusions relating to allegations that a further violation of the Statute occurred as a result of FAA's action in declaring nonnegotiable some of the proposals submitted by PASS during the course of the negotiations that preceded the September 8 implementation. We disagree with the Judge in two major respects. First, we disagree with his conclusion that under Aberdeen he could not make any conclusion as to whether DOT and/or FAA violated the Statute with respect to declaring nonnegotiable four proposals as to which a declaration based on compelling need was subsequently withdrawn in a related negotiability case. Second, as to those proposals that were before him on negotiability issues other than compelling need, we find that his reliance on the state of the law at the time the proposals were submitted and declared nonnegotiable rather than the state of the law at the time of his decision is inconsistent with Authority precedent.
1.The Applicability of Aberdeen Where a Compelling Need Assertion Has Been Withdrawn
As noted earlier, while FAA conceded that some of the proposals submitted by PASS were negotiable, others were
declared nonnegotiable. Some of these were asserted to be nonnegotiable based solely on an asserted conflict with a regulation for which there was a compelling need and some based on that and/or various other grounds. The Union filed a petition for review of negotiability issues with the Authority in Case No. 0-NG-1456 as to the proposals declared nonnegotiable and requested that the negotiability petition be held in abeyance pending disposition of the unfair labor practice charges that are the subject of this case. See Professional Airways Systems Specialists, MEBA, AFL-CIO and Department of Transportation, Federal Aviation Administration, 32 FLRA 517 (1988). In a statement of position, dated October 21, 1987, and filed in the negotiability case pursuant to section 2424.6 of the Authority's regulations, the allegation that Proposals 18A, 22E, 23 and 30A of PASS 2 (identical to Proposals 14A, 17E, 18 and 24A of PASS 3) were nonnegotiable was withdrawn by DOT. G.C. Exh. 35.
In the proceedings in this case, the GC withdrew the allegations that the Respondents violated the Statute by declaring various proposals nonnegotiable based on compelling need in light of the Supreme Court's decision in Aberdeen, 108 S. Ct. 1261 (1988). However, the GC maintained before the Judge and in exceptions to the Judge's decision that Proposals 18A, 22E, 23 and 30A are properly before the Judge and the Authority in view of the withdrawal of the original compelling need assertion.
Under Aberdeen, when an agency alleges that it has no duty to bargain because a proposal conflicts with an agency regulation for which a compelling need exists, "no duty to bargain arises until the Authority has first determined that no compelling need justifies adherence to the regulation."
108 S. Ct. at 1262. The Court further stated in Aberdeen:
Under § 7117(b) employees are provided with a means to clarify the scope of the agency's duty to bargain; if the agency then refuses to bargain, the union may seek relief through an ULP proceeding . . . . Most importantly, requiring that compelling need be resolved exclusively though a § 7117(b) appeal allows agencies to act in accordance with their regulations without an overriding apprehension that their adherence to
the regulations might result in sanctions under an ULP proceeding.
Id. at 1263.
Based on Aberdeen, we conclude that, generally, where a compelling need assertion is raised by an agency as a bar to negotiation of a union proposal the agency has no duty to bargain over the subject proposal until the issue has been resolved in a section 7117(b) proceeding. Federal Emergency Management Agency and National Federation of Federal Employees, Local 1983, 32 FLRA 502 (1988).
If an agency withdraws an allegation that a proposal is nonnegotiable, the dispute is effectively rendered moot. That is, the Authority's general practice is simply to recognize the withdrawal of the allegation and not address the issue further. See, for example, American Federation of Government Employees, AFL-CIO, Council of Marine Corps Locals, Council 240 and Department of the Navy, United States Marine Corps, 35 FLRA 108, 108 n.1 (1990). The Authority does not issue any order concerning that particular proposal. Thus, once an agency has withdrawn its allegation of nonnegotiability, all that remains to be done by the Authority in a section 7117 proceeding is the purely ministerial function of recognizing the existence of the withdrawal. Here, the Respondents' withdrawal, in the statement of position, of the compelling need allegation as to Proposals 18A, 22E, 23 and 30A of PASS 2 effectively resolved the issue for purposes of section 7117(b). From the point at which the compelling need allegations were withdrawn, FAA had an obligation to bargain over the proposals and any alleged refusal to bargain over them at that point became subject to review in an unfair labor practice proceeding. See Aberdeen, 108 S. Ct. at 1263.
Because, under Aberdeen, FAA had no duty to bargain over the four proposals as long as a compelling need allegation existed, FAA's refusal to bargain over the proposals during that period could not constitute a violation of the Statute. Further, there is no basis in the record of this case for concluding that FAA refused to bargain over those particular proposals once the compelling need allegation was withdrawn. That is, all that the record establishes is that FAA initially raised compelling need as a bar to negotiating over some of the Union's proposals and that the allegation was subsequently withdrawn in the context of a section 7117 proceeding. In our view, the fact that an agency initially raises and then withdraws an allegation of compelling need, standing alone, does not
support a finding of a refusal to bargain over those particular proposals. Consequently, we dismiss the allegation that a violation of the Statute occurred as the result of any refusal to bargain over Proposals 18A, 22E, 23 and 30A of PASS 2 or, correspondingly, Proposals 14A, 17E, 18 and 24A of PASS 3.
2.The Negotiability of Proposals 3, 11 and 22C of PASS 2
As noted earlier, where a union submits bargaining proposals concerning a proposed change in conditions of employment and an agency refuses to bargain over them based on the contention that they are nonnegotiable, the agency acts at its peril if it then implements the proposed change in conditions of employment. For example, SSA, Baltimore, 39 FLRA at 263. If any of the union's proposals are held to be negotiable, the agency will be found to have violated section 7116(a)(1) and (5) of the Statute by implementing the change without bargaining over negotiable proposals. For example, id.
Because FAA had declared Proposals 3, 11 and 22C of PASS 2 nonnegotiable based on reasons other than compelling need, the negotiability of those proposals was properly before the Judge. In ruling on those proposals, the Judge relied on the law as it existed at the time the alleged refusal to bargain occurred. It is clear and well established, however, that the Authority applies the law as it is at the time of the Authority's decision. For example, U.S. Department of Labor, Washington, D.C., 39 FLRA 531, 542 (1991); Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 30 FLRA 697, 700-01 (1987). Consequently, the Judge erred in ruling on the negotiability of Proposals 3, 11 and 22C based on the law at the time the alleged refusal to bargain occurred.
We will now determine the negotiability of those proposals on the basis of law as it currently exists.
a. Proposal 3
Proposal 3. The employer shall use the Secretary of Health and Human Services Scientific and Technical Guidelines For Drug Testing Programs. All drug testing will be performed by an independent contract laboratory certified by
Department of Defense (DOD).
The first sentence of this proposal would require that the Agency use the scientific and technical guidelines for drug testing programs that are issued by the Department of Health and Human Services (DHHS). On April 1, 1988, while this case was pending, DHHS issued final Mandatory Guidelines for Federal Workplace Drug Testing, 53 Fed. Reg. 11970-89 (Final Guidelines). The Authority has in previous cases found that the Final Guidelines are "Government-wide regulations" within the meaning of section 7117(a) of the Statute. See National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 33 FLRA 436, 438-39 (1988) (Rock Island), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground); see also Aberdeen Proving Ground, 890 F.2d at 470, n.4.
The first sentence of this proposal is similar to Proposal 1 in 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), (Department of Education), Decision on Reconsideration, 39 FLRA 1241 (1991), which required the agency to establish and administer its drug testing program in accordance with, among other things, applicable laws, rules and regulations. In Department of Education, we concluded that while Proposal 1 directly interfered with management's right under section 7106(a)(1) of the Statute to determine its internal security practices, it was nevertheless negotiable as an appropriate arrangement under section 7106(b)(3). In so concluding, we recognized that an agency's exercise of its right to implement a drug testing program could adversely affect employees. Id. at 1077. In finding that the proposed "arrangement" was "appropriate," we noted that "the existence of applicable laws, rules and regulations already serves to limit agency action and indicates that an agency's interest in being able to act without regard to those provisions and without challenge to the legality of its action, such as in arbitration procedures, is negligible." Id. at 1078.
We believe that the same considerations apply in this case and see no reason to conclude that the first sentence of Proposal 3 is not also negotiable as an appropriate arrangement. Therefore, we conclude that the first sentence of Proposal 3 is within the duty to bargain.
The second sentence is, however, nonnegotiable because it is inconsistent with the Final Guidelines, a
Government-wide regulation. Under section 2.6 of the Final Guidelines, agencies may use contract laboratories that have been certified for urinalysis testing by the Department of Defense only during an "interim certification period" to be determined by the Secretary of DHHS. The effect of the second sentence would be to require use of a contract laboratory certified by the Department of Defense for the duration of the parties' agreement even though the Secretary of DHHS may have determined that such interim certification procedures are "no longer available." Final Guidelines,
section 2.6.
b.Proposal 11
Proposal 11. The employer shall provide all designated representatives of the Union the opportunity to attend drug related training sponsored by the employer. This training shall be on official time, including travel and per
diem.
Insofar as the proposal concerns providing official time, travel and per diem for the Union's designated representatives to attend agency-sponsored drug related training we agree with the Judge that it is negotiable. See section 7131(d) of the Statute (parties to exclusive recognition may agree to grant official time to any employee representing an exclusive representative); National Treasury Employees Union and Department of the Treasury, U. S. Customs Service, 21 FLRA 6 (1986), enf'd sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988) (proposal that union representatives on official time be granted travel and per diem is negotiable).
We reaffirm the Authority's position that proposals requiring that employees be granted official time for union-related activities continue to be negotiable under section 7131(d) of the Statute. We recently discussed the impact on management's rights of a proposal that would have the effect of obligating a portion of employees' duty time to a purpose specified in the proposal, thereby, limiting an agency's ability to assign work during that period. 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) (Proposal 2) (Defense Mapping Agency).
In finding that a proposal that would allow employees to attend "classes" on drug testing was negotiable even if
the classes where to be held on duty time we stated:
[W]e find that the proposal does not directly interfere with the Agency's right to assign work. It is clear, of course, that the time spent by unit employees attending the classes in which the information is conveyed would not be available for other uses, including the performance of the employees' assigned duties. That is, attending the classes would take time. It is equally clear, however, that everything an employee does during duty time takes time. Accordingly, to find that an otherwise negotiable proposal directly interferes with the right to assign work solely because implementation of the proposal results in the use of time, ultimately would mean that virtually all proposals directly interfere with that right.
We find no basis in the Statute for such an expansive view of the right to assign work. Moreover, in similar contexts, the courts and the Authority have refused to interpret management's rights under section 7106 in such a manner. In American Federation of Government Employees v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986), for example, the court addressed the issue of whether a proposal providing union representatives with 100 percent official time interfered with an agency's right to determine the numbers, types and grades of employees assigned to a tour of duty under section 7106(b)(1) of the Statute. In concluding that the proposal was negotiable, the court noted that any proposal for additional official time "in an efficiently run organization will require the agency to reassign work to other employees . . . ." Id. at 1529. The court continued:
In specifically providing for official time, Congress must have envisioned either some reallocation of positions or some additional hiring and hence some limitation in management's right to determine the number of employees assigned to a work project or organizational subdivision. Otherwise, the
official time provision of section 7131(d) would be a dead letter.
Id. at 1529.
Defense Mapping Agency, 39 FLRA at 564-65.
Additionally, we have rejected arguments that a proposal that does not directly interfere with any particular management right is, nonetheless, nonnegotiable because it would have the effect of requiring an agency to exercise some management right or rights in order to accomplish requirements established by the proposal. See American Federation of Government Employees, Local 1698 and U.S. Department of the Navy, Naval Aviation Supply Office, Philadelphia, Pennsylvania, 38 FLRA 1016, 1024 (1990); National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 368 (1990).
Before the Judge, the Respondents claimed that this proposal interfered with management's right under section 7106(a)(2)(B) to assign work because it concerned training. In agreement with the Judge, we find that this proposal on its face does no more than allow employees functioning as representatives of PASS to attend agency-sponsored training purely in their representational capacity and for purposes of being better able to represent bargaining unit employees under the Statute in matters associated with drug testing. In our view it is similar to Proposal 2 in Defense Mapping Agency in that it does not involve training employees who have responsibilities or duties in the drug program itself in how to accomplish those responsibilities nor does it, otherwise, require the agency to provide instruction to employees on aspects of their jobs or other performance-related matters. Rather, it merely authorizes Union representatives to attend agency training programs on drug testing for the purpose of obtaining information about a condition of employment in the bargaining unit; i.e. the drug program. Like Proposal 2 in Defense Mapping Agency, nothing in the language of this proposal does anything other than provide a vehicle by which information concerning the drug testing program is conveyed to Union representatives solely in the context of their representational status under the Statute.
We conclude that this proposal, like Proposal 2 in Defense Mapping Agency, does not concern training that is
encompassed within management's right to assign work. Compare National Federation of Federal Employees, Local 1437 and United States Army Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, 35 FLRA 1052 (1990) (Proposal 1) (proposal that required training be provided to union officials so that they could better represent their bargaining unit in matters related to safety of the workplace pursuant to 29 CFR Part 1960 concerned training that was encompassed within management's right to assign work) with National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270, 274 (1983) (proposal allowing participation of union representative on incentive awards committee did not concern official prescribed duties, merely authorized a procedure for union participation in the administration of a program concerning a condition of employment and did not involve the assignment of "work" within the meaning of section 7106(a)(2)(B) of the Statute). In view of our conclusion, we need not and do not address the extent to which all proposals relating to training directly interfere with an agency's right to assign work.
Based on the foregoing reasons, we conclude that Proposal 11 is negotiable.
c. Proposal 22C
C. The employee shall be given a sample of his/her own specimen so that a separate test can be administered at a laboratory of the employee's own choosing. The employee shall be allowed official time to deliver
such samples to a laboratory.
In the agency statement of position that was submitted in the negotiability case that is a companion to this case, the agency takes the position that Proposal 22C "is inconsistent with . . . the DOT program, for which a compelling need exists . . . and therefore violates sections 7117(a)(1) and (a)(2)." G.C. Exh. 35 at 31. In view of this allegation that negotiation of Proposal 22C is barred by compelling need, we conclude that under Aberdeen the negotiability of this proposal can be resolved only in a section 7117(b) proceeding and cannot be resolved in an unfair labor practice proceeding.
3. Summary and Conclusion
FAA violated section 7116(a)(1) and (5) of the Statute as a result of its action in declaring Proposal 11 and the first sentence of Proposal 3 of PASS 2 nonnegotiable and then implementing a change in conditions of employment.
In its exceptions PASS argues that because DOT and FAA jointly decided which PASS proposals were nonnegotiable, DOT should also be held to have violated the Statute. While the record establishes that FAA consulted with, and was advised by, DOT concerning the declaration of nonnegotiability that FAA made with respect to the PASS proposals, the record does not establish that DOT gave FAA a mandatory directive to declare the PASS proposals nonnegotiable. Consequently, there is no basis for concluding that DOT interfered with the FAA/PASS bargaining relationship based on its actions in consulting with and advising FAA concerning the declarations of nonnegotiability that were provided by FAA to PASS. Compare U.S. Department of Agriculture and U.S. Department of Agriculture and U.S. Department of Agriculture,
Agricultural Marketing Service, Livestock Division, Meat Grading and Certification Branch, Washington, D.C., 29 FLRA 940 (1987) (the record established that an agency issued a directive to its subordinate activities prohibiting them from negotiating an agreement with any union that would authorize the payment of travel and per diem expenses to union representatives). Thus, the record does not support a conclusion that DOT interfered with the bargaining relationship between FAA and PASS as a result of its role in FAA's declaration that Proposals 11 and the first sentence of Proposal 3 were nonnegotiable.
E. The Remedy
The Judge rejected a status quo ante remedy as not appropriate. PASS excepts to his failure to grant such a remedy.
In Federal Correctional Institution, 8 FLRA 604 (1982) the Authority set forth balancing criteria to be applied to the facts of each case to determine whether a status quo ante remedy is warranted in the case of a refusal or failure to bargain over procedures and appropriate arrangements that
management will observe in exercising its rights under section 7106 of the Statute. Under the Federal Correctional Institution criteria, the Authority considers, among other things: (1) whether, and when, notice was given to the union by the agency; (2) whether, and when, the union requested bargaining; (3) the willfulness of the agency's conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency's operations. Federal Correctional Institution, 8 FLRA at 606.
Here, both DOT and FAA gave PASS notice that the DOT Drug-Free Workplace program was being established and would be implemented in the PASS bargaining units. In this regard, the record reveals communications from DOT to PASS advising it of the program as early as January 1987. By letter dated July 1, 1987, FAA forwarded to PASS a copy of the 60-day notice concerning the drug testing component of the program and by letter dated August 7, 1987, FAA provided PASS with a copy of the 30-day notice to employees subject to random testing under the program. In a letter dated August 12, 1987, FAA stated that the drug testing program was scheduled to go into effect as early as September 8 and requested PASS to submit any proposals that it had as soon as possible.
The record shows that PASS began to request bargaining concerning the implementation of the drug screening program in its bargaining units as early as June 25, 1987. However, despite FAA's urging that bargaining about the drug screening program be conducted separately, PASS took the position that the negotiations concerning the drug testing program should be conducted in conjunction with national contract negotiations between it and FAA that were not scheduled to begin until around August 18. PASS also took the position that FAA, not PASS, should provide the initial bargaining proposals concerning the drug screening program. The Judge found that in a telephone conversation that occurred on or about August 6 or 7, an FAA representative denied a PASS request that FAA provide bargaining proposals in the absence of PASS proposals. PASS first provided proposals on August 27, 1987. The parties engaged directly in negotiations or were recessed to consider or study proposals through September 4, at which point the next meeting was scheduled for September 16.
From the foregoing, we conclude that PASS was given adequate notice of the plan to establish a drug testing program in its bargaining unit. While it expressed its desire to bargain over the matter, the actual submission of proposals did not occur until quite close to the date that the drug testing program was scheduled to begin. Although PASS was not wholly responsible for this circumstance, it bears a substantial share of the responsibility for the belated start of a serious bargaining effort.
As for the willfulness of the Agency's conduct, we find significant the Judge's finding that FAA communicated to PASS that while it could not change the scheduled September 8 effective date for the commencement of the drug testing program, employees in the PASS unit would probably not actually be tested until later in September as a result of the need to provide a 30-day notice. JD at 9. Thus it appears that FAA was laboring under the belief, albeit incorrect, that for purposes of bargaining the critical point in the implementation of the drug testing program was the point at which bargaining unit employees would actually undergo testing rather than the point at which the program as a whole would begin operation. Moreover, FAA did demonstrate a willingness to bargain over the impact and implementation of the program. Consequently, there is no basis for concluding that the violation that occurred as a consequence of FAA's implementation of the drug testing program was totally willful.
We recognize that an agency's implementation of a drug testing program adversely affects employees. As acknowledged by the Supreme Court, urinalysis for drug testing purposes "invade[s] reasonable expectations of privacy." NTEU v. Von Raab, 109 S. Ct. 1384, 1390 (1989). Moreover, an employee subject to drug testing whose test produces a "false" positive can reasonably be viewed as having been adversely affected. Also, an employee subject to drug testing who tests positive is subject to certain personnel actions, including reassignment, counseling or rehabilitation, or disciplinary action depending on the employee's particular situation. A personnel action based on drug testing results would affect an employee's reputation and future employment. We conclude that the nature and extent of the impact of the implementation of a drug testing program on employees is significant.
Next, we turn to the degree to which a status quo ante remedy would disrupt or impair the efficiency and effectiveness of agency operations.
The Government has a compelling interest in maintaining air safety. See National Federation of Federal Employees v. Cheney, 884 F.2d 603, 610 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990). ("Compelling as the government's interest is in preventing the promotion of drug users to positions involving interdicting drugs and carrying firearms, it pales in comparison with the quintessential risk of destruction to life and property posed by aviation.") A drug-related lapse by an employee in a position that is directly related to the operation of the aviation safety and control system can have "irreversible and calamitous consequences." Id. The PASS bargaining unit includes employees who have responsibilities that are directly related to the operation of the aviation safety and control system. For example, they include pilots, flight instructors and electronic technicians whose duties are to maintain, certify, repair and install electronic equipment throughout FAA. We find that FAA has a particularly urgent need to ensure a drug-free workplace insofar as such employees are concerned. It is noteworthy that DOT was exempted from the restriction placed on Federal employee drug testing by section 503 of the Supplemental Appropriations Act of 1987. Pub. L. No. 100-71, 101 Stat. 468, 471 (1987), codified at 5 U.S.C. § 7301. Section 503 effectively restricted drug testing of Federal employees until certain conditions, specified therein, had been met. In excepting DOT from this restriction the Committee of Conference cited the need to protect public "health and safety." H.R. Rep. No. 100-195, 100th Cong. 1st Sess. at 111 (1987).
In view of the paramount and incontrovertible need to ensure the integrity of the aviation safety and control system, we conclude that to require a return to the status quo ante in this case would be detrimental to the efficiency and effectiveness of FAA's operations. Moreover, as discussed above, the FAA's actions in this case, while serious, are not of such enormity as to outweigh the need to ensure the efficiency and effectiveness of the aviation safety and control system.
On balance, we conclude that a status quo ante remedy is not appropriate. Accordingly, to remedy the unfair labor practices in this case we will issue a prospective bargaining order and require the Respondent FAA to post an appropriate remedial Notice. In bargaining pursuant to our order, the parties are free to negotiate with respect to any effects that the implementation of the drug testing program has had on employees and with respect to giving retroactive effect to any provisions on which they reach agreement.
VI. Order
The complaint herein against the Department of Transportation is hereby dismissed.
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Federal Aviation Administration shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request of Professional Airways Systems Specialists, MEBA, AFL-CIO, a complete listing of all incidents involving drug-related disciplinary or adverse actions that have occurred over the past three years in bargaining units it represents and for which Federal Aviation Administration has been upheld in either grievance or MSPB proceedings, in sanitized form and to the extent permitted by law.
(b) Unilaterally implementing DOT Order 3910.1, Drug-Free Departmental Workplace without bargaining with the Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative of its employees to the extent consistent with law and regulations, on the procedures to be observed in implementing the changes in conditions of employment set forth therein and concerning the appropriate arrangements for employees adversely affected by such changes.
(c) Failing and refusing to meet and negotiate with Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative of its employees, over negotiable proposals with respect to the procedures which the Federal Aviation Administration will observe in exercising its authority with regard to the change in conditions of employment and concerning appropriate arrangements for employees adversely affected by such change, to the extent permitted by law.
(d) In any like or related manner, interfering with, restraining or coercing employees in the exercise of any right assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request of Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative of certain employees, furnish it with a complete list of all incidents involving drug-related disciplinary or adverse actions that have occurred over the past three years in bargaining units it represents and for which Federal Aviation Administration has been upheld in either grievance or MSPB proceedings, in sanitized form and to the extent permitted by law.
(b) Upon request, negotiate in good faith with Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative of certain of its employees, over the procedures to be observed in implementing DOT Order 3910.1 and the appropriate arrangements for adversely affected employees.
(c) Post at all of its facilities where bargaining unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Administrator of the Federal Aviation Administration and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply with the Order.
NOTICE TO ALL EMPLOYEES
WE WILL NOT refuse to furnish, upon request of Professional Airways Systems Specialists, MEBA, AFL-CIO, a complete listing of all incidents involving drug-related disciplinary or adverse actions that have occurred over the past three years in bargaining units it represents and for which Federal Aviation Administration has been upheld in either grievance or MSPB proceedings, in sanitized form and to the extent permitted by law.
WE WILL NOT unilaterally implement DOT Order 3910.1, Drug-Free Departmental Workplace, without bargaining with the Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative of certain of our employees, to the extent consistent with law and regulation, on the procedures to be observed in implementing the changes in conditions of employment set forth therein and concerning the appropriate arrangements for employees adversely affected by such changes.
WE WILL NOT fail and refuse to meet and negotiate with Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative of certain of our employees, over negotiable proposals with respect to the procedures that the Federal Aviation Administration will observe in implementing DOT Order 3910.1 and concerning appropriate arrangements for employees adversely affected by such change, to the extent permitted by law.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL upon request of Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative of certain of our employees, furnish it with a complete list of all incidents involving drug-related disciplinary or adverse actions that have occurred over the past three years in bargaining units it represents and for which Federal Aviation Administration has been upheld in either grievance or MSPB proceedings, in sanitized form and to the extent permitted by law.
WE WILL, upon request of Professional Airways Systems Specialists, MEBA, AFL-CIO, the exclusive representative of certain of our employees, negotiate over the procedures to be observed in implementing DOT Order 3910.1 and the appropriate arrangements for adversely affected employees.
(Activity)
Dated: By:
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, whose address is: 1111 - 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D. C. 20033-0758, and whose telephone number is: (202) 653-8500.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)