[ v41 p728 ]
41:0728(68)NG
The decision of the Authority follows:
41 FLRA No. 68
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of two proposals addressing the implementation of the Agency's drug testing program.(1)
Proposal 1 permits observation of an employee providing a urine specimen only when there is reason to believe that the employee may alter or substitute the specimen because facts and circumstances suggest that the employee either possesses equipment or implements capable of tampering with or altering the specimen, or has tampered with specimens in the past. Proposal 2 allows employees to challenge under the negotiated grievance procedure the Agency's compliance with its regulations in designating their positions as subject to drug testing. For the following reasons, we find that both proposals are negotiable.
II. Preliminary Matter
During the pendency of this case, the Federal courts issued several decisions concerning agency drug testing programs. On December 14, 1989, the parties in this case were directed by the Authority to file supplemental briefs addressing the applicability to this case of recent court decisions involving drug testing programs. Both parties filed supplemental briefs which have been considered in resolving the negotiability issues in this case.
III. Proposal 1
Observation by collection site personnel will be permitted only when such personnel have reason to believe that a particular individual may alter or substitute the specimen to be provided based on criteria set forth in chapter 4-2.e and f of the GSA order.
A. Positions of the Parties
1. The Agency
The Agency asserts that Proposal 1 is nonnegotiable because it is inconsistent with Executive Order 12564, "Drug-free Federal Workplace," (the Executive Order) and with Federal Personnel Manual (FPM) Letter 792-16, dated November 28, 1986, which the Agency characterizes as "a governmentwide rule or regulation for 5 U.S.C. § 7117(a) purposes."(2) Statement of Position at 3. According to the Agency, the FPM letter provides that the procedure for collecting urine specimens must allow for individual privacy unless there is reason to believe that a particular individual may alter or substitute the specimen. The Agency points out that section 4.g(2) of the FPM letter lists five circumstances in which agencies may wish to require observation, and that those circumstances have been included, with one addition, in its own regulation, Chapter 4-2 of GSA Order OAD P 9700, which is cited in Proposal 1. The Agency asserts that as Proposal 1 would permit observation in only two of the circumstances in which observation would be authorized under the FPM letter, the proposal is nonnegotiable under section 7117(a) of the Statute because it is inconsistent with a Government-wide regulation.
The Agency also asserts that Proposal 1 is nonnegotiable because it is inconsistent with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency states:
Direct observation during the testing process under certain circumstances is the method the Agency has established to ensure that an accurate sample is obtained from the employee for testing. As such, this method is an integral part of the drug testing program, and thereby, an integral component of the internal security practices of the Agency.
Statement of Position at 5. The Agency asserts that, by limiting the situations in which direct observation may be used, "the proposal not only interferes with management's right to determine its internal security practices, but interferes to such an excessive extent that it cannot pass the test of being an 'appropriate arrangement' for employees adversely affected by the exercise of this management right." Id. at 5-6.
2. The Union
The Union asserts that FPM Letter 792-16 was held not to be a valid Government-wide regulation in National Treasury Employees Union v. Reagan, 685 F. Supp. 1346 (E.D. La. 1988) (NTEU v. Reagan),(3) aff'd sub nom. National Treasury Employees Union v. Bush, 891 F.2d 99 (5th Cir. 1989) (NTEU v. Bush). The Union argues that Proposal 1 complies with both the Executive Order and applicable final Mandatory Guidelines for Federal Workplace Drug Testing, 53 Fed. Reg. 11970-89, issued by the Department of Health and Human Services (HHS Guidelines). The Union asserts that both issuances provide for personal privacy during collection of specimens, unless an agency has reason to believe that an individual may alter or substitute a specimen. The Union contends that its proposal "allows observation when there is some evidence that would give rise to a belief that an individual is altering or may attempt to alter a test sample." Reply Brief at 4. Acknowledging that its proposal lists fewer instances authorizing direct observation than does the Agency regulation in Chapter 4-2, the Union asserts that the additional instances contained in the Agency's regulation are not found in either the Executive Order or the HHS Guidelines.
The Union also asserts that Proposal 1 is an appropriate arrangement for employees adversely affected by the exercise of a management right. The Union argues that the requirement "that an employee void his or her bladder in front of collection personnel[,]" has an adverse effect on employees because it violates their expectation of privacy. Id. at 5. In the Union's view, the proposal redresses the harm by assuring that employees, in most instances, will have the opportunity to provide specimens in privacy. The Union argues that the proposal "restricts the infringement upon employee privacy by conditioning observation upon facts and circumstances that suggest the individual has equipment or implements capable of tampering with or altering urine samples or when the individual has previously tampered with a sample." Id. at 5-6. According to the Union, employees, who have no control over random drug testing programs, would be spared "the indignities attendant to the practice of direct observation while preserving the Agency's right to directly observe employees in certain circumstances." Id. at 6-7. Therefore, in the Union's view, the proposal does not excessively interfere with the Agency's right to determine its internal security practices.
B. Analysis and Conclusions
Proposal 1 authorizes direct observation by collection site personnel only when such personnel "have reason to believe" that the individual to be tested for drugs may alter or substitute the specimen "based on criteria set forth in chapter 4-2.e and f" of GSA Order OAD P 9700. Chapter 4-2 of the GSA Order provides, in its entirety, as follows:
2. Privacy requirements. Any individual subject to testing shall be permitted to provide urine specimens in private, and in a rest room stall or similar enclosure so that the employee is not observed while providing the sample. Collection site personnel, however, may observe the individual provide the urine specimen when such personnel have reason to believe the individual may alter or substitute the specimen to be provided. The collection site personnel will be of the same gender as the employee. Collection site personnel may have reason to believe that a particular individual may alter or substitute the specimen to be provided when--
a. The individual is being tested relating to reasonable suspicion testing;
b. Facts and circumstances suggest that the individual is an illegal drug user;
c. Facts and circumstances suggest that the individual is under the influence of drugs at the time of the test;
d. The individual has previously been found by GSA to be an illegal drug user;
e. Facts and circumstances suggest that the individual has equipment or implements capable of tampering with or altering urine samples; or
f. The individual has previously tampered with a sample.
Attachment 2 to Petition for Review.
Read in conjunction with the GSA Regulation to which it refers, it is clear that Proposal 1 would permit observation by collection site personnel "only when such personnel have reason to believe" that an employee may alter or substitute the specimen because: (1) facts and circumstances suggest that the employee has equipment or implements capable of tampering with or altering the sample; or (2) the employee previously has tampered with a sample.
1. The Executive Order and the FPM Letter
We reject the Agency's contentions that Proposal 1 is inconsistent with the Executive Order and the FPM Letter.(4)
Section 4(c) of the Executive Order provides 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 Executive Order neither provides any examples of situations where there is such a "reason to believe" nor in any other way addresses the matter. Moreover, the Executive Order does not mandate direct observation in any circumstances. It merely provides an exception to the requirement that employees be afforded privacy.
Proposal 1 also provides for direct observation when collection site personnel "have reason to believe" that an employee may alter or substitute a specimen. The Union states, in this regard, that the proposal is intended to encompass the "reason to believe" standard set forth in the Executive Order. Reply Brief at 4. As the Union's statement is consistent with the plain wording of the proposal, and as the Executive Order neither defines the "reason to believe" standard nor requires direct observation in any situation, we conclude that, by permitting direct observation when the Agency has reason to believe, based on the specified criteria, that an employee may alter or substitute a specimen, Proposal 1 is consistent with the Executive Order.
FPM Letter 792-19, Section 4.g provides, in relevant part:
g. Privacy in Drug Testing. Agency drug testing procedures under E.O. 12564 must allow individual privacy unless the agency has reason to believe that a particular individual may alter or substitute the specimen to be provided. Agencies should refer to the HHS Mandatory Scientific and Technical Guidelines for Federal Employee Drug Testing Programs for the specific procedures to be followed in conducting drug tests.
. . . .
(2) Generally, an employee or applicant may be required to provide a sample under observation only if there is reason to believe that the employee or applicant may alter or substitute the urine specimen. For example, employers may wish to require observation when facts and circumstances suggest that the person to be tested: (a) is an illegal drug user; (b) is under the influence of drugs at the time of the test; (c) has previously been confirmed by the agency to be an illegal drug user; (d) is seen to have equipment or implements used to tamper with urine samples; (e) has recently been determined to have tampered with a sample.
We find no conflict between Proposal 1 and section 4.g(2) of the FPM Letter. It is clear, in this regard, that Proposal 1 lists only two of the five circumstances discussed in connection with direct observation in section 4.g(2). Like the Executive Order, however, section 4.g(2) does not mandate testing under direct observation in any of those circumstances. Rather, as plainly worded, section 4.g(2) speaks only to circumstances in which "employers may wish to require observation . . . ." (Emphasis in original). As such, section 4.g(2) shows an intent to allow agencies discretion to determine when direct observation of employees providing specimens is appropriate. Indeed, consistent with its discretion, the Agency has elected to include in its Agency regulation a circumstance which is not contained in section 4.g(2). Consequently, although Proposal 1 lists only two of the five circumstances in section 4.g(2), it does not conflict with the FPM letter.
Finally, although not raised by the Agency, we note that the HHS "Guidelines . . . clarify the 'reason to believe' standard in the Executive Order." American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1096 (1990) (Education), reconsideration as to other matters denied, 39 FLRA 1241 (1991), petition for review filed sub nom. United States Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991). In particular, section 2.2(e) and (f) of the Guidelines provides, in pertinent part:
(e) Privacy. Procedures for collecting urine specimens shall allow individual privacy unless there is reason to believe that a particular individual may alter or substitute the specimen to be provided.
(f) Integrity and Identity of Specimen. . . . The following minimum precautions shall be taken to ensure that unadulterated specimens are obtained and correctly identified:
. . . .
(7) The individual may provide his/her specimen in the privacy of a stall or otherwise partitioned area that allows for individual privacy.
. . . .
(13) If the temperature of a specimen is outside the range of 32.5 [degrees] - 37.7 [degrees]C/90.5 [degrees] - 99.8 [degrees]F, that is reason to believe that the individual may have altered or substituted the specimen, and another specimen shall be collected under direct observation of a same gender collection site person and both specimens shall be forwarded to the laboratory for testing.
. . . .
(16) Whenever there is reason to believe that a particular individual may alter or substitute the specimen to be provided, a second specimen shall be obtained as soon as possible under the direct observation of a same gender collection site person.
Consistent with the Executive Order and the FPM Letter, the Guidelines provide that direct observation must be based on a reason to believe that an employee may alter or substitute a urine specimen. Unlike the Order and the Letter, however, section 2.2(f)(13) of the Guidelines provides that, if a specimen is outside a specified temperature range, that fact "is a reason to believe that the individual may have altered or substituted the specimen[.]" In that circumstance, the Guidelines require the collection of another specimen under direct observation.
We find no basis in the record on which to conclude that Proposal 1 would prohibit direct observation in the situation where it is required by section 2.2(f)(13) of the Guidelines. The proposal provides for direct observation when circumstances suggest that the tested employee has equipment capable of tampering with or altering the specimen or when the individual has previously tampered with a sample. We note, in this regard, that none of the sections of the GSA Order other than the two encompassed by Proposal 1 appear to relate to the situation where direct observation is required by the Guidelines. Moreover, there is no assertion in the record that the GSA Order does not encompass direct observation in the circumstance where such observation is mandated in section 2.2(f)(13) of the Guidelines. Accordingly, in the absence of any indication in the record to the contrary, we conclude that an employee's provision of a specimen falling outside the temperature range specified in section 2.2(f)(13) of the Guidelines would suggest either that the employee has equipment capable of tampering with a specimen or that the employee has tampered with a specimen. As such, the direct observation which is required by the Guidelines would be permitted under subsections e and f of the GSA Order, as encompassed by Proposal 1.
2. Internal Security Practices
The Agency also argues that Proposal 1 is nonnegotiable because it is inconsistent with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. For the following reasons, we disagree with the Agency's argument.
In Education, section B of Proposal 5 required that management accord employees privacy when providing urine specimens unless, consistent with the union's statement of intent, management had a "'reasonable suspicion . . . that an employee may attempt to invalidate or falsify the urine specimen.'" 38 FLRA at 1094 (citation omitted). The agency in Education argued, as the Agency does here, that the disputed proposal interfered with management's right to determine its internal security practices. In responding to the agency's argument, we noted that it was unnecessary to reach the question of whether the disputed proposal interfered with a management right under section 7106(a)(1) of the Statute because:
[i]f the decision to assign an observer to monitor an employee urine sample does not constitute the exercise of management's right under section 7106(a)(1), section B is negotiable because it would not directly interfere with the exercise of a management right . . . .
On the other hand, if the decision to assign an observer constitutes the exercise of management's right under section 7106(a)(1), the limitation imposed on the exercise of that right by the incorporation of the Executive Order standard in section B would, . . . directly interfere with that right. However, section B would nevertheless be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. . . . [T]he benefit to employees of the protection afforded their privacy by the application of the Executive Order standard outweighs any burden on management's right to act, under section 7106(a)(1), without regard to the requirements of the Executive Order.
Id. at 1098-99.
Using the framework set out in Education, we find it unnecessary here to determine whether Proposal 1 directly interferes with the exercise of management's right to determine its internal security practices under section 7106(a)(1). Applying the framework set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1987) (Kansas Army National Guard), we conclude that even if Proposal 1 directly interferes with the exercise of that right, it is negotiable as an appropriate arrangement. We note three things.
First, unlike the disputed proposal in Education, Proposal 1 restricts the criteria on which the Agency's "reason to believe" may be based. The two criteria contained in the proposal are broad, however. They encompass facts and circumstances suggesting that an employee has equipment capable of tampering with a sample and situations where an employee has tampered with a sample. In fact, the first criteria is broader than that specified in the FPM Letter. Section 4.g(2)(d) of the FPM Letter provides that an agency may wish directly to observe an employee when the employee "is seen to have equipment or implements used to tamper with urine samples[.]" Proposal 1 would permit direct observation when facts and circumstances merely "suggest" that an employee has such equipment.
Second, the Executive Order, the Guidelines, and the FPM Letter indicate a clear preference for employee privacy during testing. In fact, as noted previously, all three provisions require such privacy unless there is "reason to believe" that employees may tamper with specimens. See also National Treasury Employees Union v. Von Raab, 109 S. Ct. 1384, 1394 n.2 (1989) (NTEU v. Von Raab) (Court stated that disputed drug-testing program did not "carry the grave potential for 'arbitrary and oppressive interference with the privacy and personal security of individuals[]'" because, among other things, "[t]here is no direct observation of the act of urination, as the employee may provide a specimen in the privacy of a stall.") (citations omitted). For the reasons previously discussed, Proposal 1 is fully consistent with the principle of employee privacy and with the portions of the Order, Guidelines, and the Letter addressing it.
Third, consistent with the preference in the Executive Order, the Guidelines, and the FPM Letter for employee privacy, there can be no reasonable dispute that direct observation of an employee while that employee provides a urine specimen is a direct and significant intrusion on the employee's privacy:
There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom.
Skinner v. Railway Labor Executives' Assn., 109 S. Ct. 1401, 1413 (1989) (quoting National Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987)). See also NTEU v. Von Raab, 109 S. Ct. at 1390 (Court stated that drug tests "invade reasonable expectations of privacy."). To the extent that the decision to observe directly an employee providing a urine sample constitutes the exercise of the Agency's right to determine its internal security practices, the intrusion on employees' privacy results directly from the exercise of the right and, in our view, constitutes an adverse effect under section 7106(b)(3) of the Statute.
Proposal 1 preserves management's right to observe employees directly in two broad circumstances when there is reason to believe that the employees may alter or substitute the specimens. Proposal 1 also ensures that, except in the circumstances set forth, employees are afforded privacy. We conclude that the benefit afforded to employees by Proposal 1 outweighs any interference with management's right under section 7106(a)(1).
For all of these reasons, we conclude that Proposal 1 is negotiable. The proposal is consistent with Executive Order 12564 and FPM Letter 792-19. If the decision to observe employees while they provide urine specimens does not constitute the exercise of management's right to determine its internal security practices, Proposal 1 is negotiable because it would not directly interfere with the exercise of that management right. Even if such decision constitutes the exercise of management's right to determine its internal security practices, however, Proposal 1 would not excessively interfere with that right and would, therefore, be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
IV. Proposal 2
If an employee believes his or her position has been wrongly designated a testing designated position, the employee may grieve the designation under the negotiated grievance procedure.
A. Positions of the Parties
1. The Agency(5)
The Agency asserts that, consistent with the Union's interpretation of Proposal 2, grievances brought under the proposal would be based on an employee's belief that his or her position did not meet the criteria contained in GSA Order OAD P 9700 Chapter 2, Section 3 for designating a position for random drug testing. The Agency argues that, by incorporating the regulatory criteria in the negotiated agreement, Proposal 2 imposes "contractual limitations" on management's right to determine its internal security practices. Statement of Position at 7. The Agency asserts that the proposal also is nonnegotiable because it would subject the exercise of management's right to determine its internal security practices to "arbitral review." Id. at 8.
The Agency argues also that Proposal 2 violates management's right to direct employees under section 7106(a)(2)(A) of the Statute because the identification of testing-designated positions could be linked to the establishment of critical elements and performance standards. The Agency states that it:
could make the requirement to be "drug free" a critical element of any position identified as a testing[-]designated position. The requirement to submit to random drug tests could then be made a performance standard. Thus the identification of testing designated positions becomes linked to the identification of critical elements and an exercise of management's right to direct employees under 5 USC 7106(a)(2).
Id. at 10. In the Agency's view, Proposal 2 is nonnegotiable because it would authorize grievances challenging the Agency's identification of critical elements.
In its supplemental brief, the Agency asserts that the designation of the positions subject to random drug testing is "management's prerogative" under both the Executive Order and FPM Letter 792-19. Agency's Supplemental Brief at 10. The Agency argues that the proposal interferes with that prerogative in violation of applicable law and regulation. The Agency also asserts that "the unexpressed objective of the [Union's] proposal is to permit an employee to challenge the legality (on constitutional grounds) of [the Agency's] identification of a [testing designated position], regardless of whether the identification is reasonably supportable by the factors listed in [the Agency's] Order." Id. at 12. In this regard, the Agency states that "the resolution of constitutional questions is a matter left to the courts, not the arbitrators or the FLRA." Id.
2. The Union
The Union asserts that, in Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 635 (1987) (Newark Air Force Station), the Authority determined that the scope of a negotiated grievance procedure is a mandatory subject of bargaining. The Union argues that, as the matter is not expressly barred by section 7121(c) of the Statute, the propriety of designating a position for random drug testing may be challenged under the negotiated grievance procedure. Therefore, according to the Union, Proposal 2 is negotiable.
The Union rejects the Agency's argument that the proposal would incorporate the Agency's criteria for identifying a position for random drug testing into the collective bargaining agreement. In addition, the Union states that the proposal "has nothing to do with the identification of critical elements." Reply Brief at 9. In its supplemental brief, the Union states that Federal court decisions concerning agency drug testing "involve entirely different legal issues than those presented here and thus have no real bearing on the disposition of this case." Union's Supplemental Brief at 1-2.
A. Analysis and Conclusions
Under Proposal 2, the Agency's designation of a position for random drug testing would be subject to challenge through the negotiated grievance procedure, if an employee believes his or her position "has been wrongly designated." The Union interprets the proposal as follows:
The specific intent of the proposal would allow an employee to grieve, under the negotiated grievance procedure, if the employee believes his or her position has been wrongly designated as a testing designated position. GSA Order OAD P 9700 Chapter 2, Section 3 lists the criteria for designating a position for random, drug testing. If the employee does not believe his or her position meets the criteria given in Chapter 2, Section 3, the employee can use the negotiated grievance procedure to challenge the designation of his or her position as a position designated for testing.
Petition for Review at 2.(6) The Agency agrees with the Union's interpretation of the proposal. Statement of Position at 6. Moreover, the Union's statement is consistent with the plain wording of the proposal. Accordingly, for the purposes of this decision, we interpret Proposal 2 as enabling employees to challenge, through the negotiated grievance procedure, the Agency's compliance with its Order in designating positions as subject to random drug testing.
We reject, at the outset, three Agency arguments. First, although the proposal would enable employees to challenge Agency compliance with the GSA Order, the proposal would not incorporate in the parties' agreement the criteria contained in the Order. The Union states, in this regard, that it "has no intention of incorporating the criteria into the collective bargaining agreement . . . ." Reply Brief at 9. See also Statement of Position at 7 ("The Agency acknowledges that the Union's proposal as written does not reference the specific criteria[.]"). As such, we reject the Agency's argument that the proposal is nonnegotiable because "incorporation into the agreement of specific terms would impose an independent contractual requirement" on the exercise of the Agency's right to determine its internal security practices. Id. Put simply, incorporation of the proposal in the parties' agreement would not affect, in any way, the Agency's ability to modify, eliminate, or replace its existing regulatory provision concerning the designating of positions for drug testing. See generally National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 577 (1981), aff'd sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982). The proposal would require only that "when management acts, it does so in accordance with applicable . . . directives existing at the time." Id.
Second, we reject the Agency's argument that the proposal directly interferes with its right to direct employees. Nothing in the proposal, as plainly worded, or in the Union's interpretation of the proposal, would affect in any way the Agency's rights to establish performance standards or critical elements. The Agency's argument is without merit and we will not address it further.
Third, we reject the Agency's argument that the proposal is nonnegotiable because inclusion of it in the parties' agreement would enable an arbitrator "to substitute his or her judgement for management's in deciding whether a position meets management's criteria for test designation." Statement of Position at 9. An "assertion that an arbitrator's judgment may be substituted for its own is not a basis for finding a proposal to be nonnegotiable." American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 528 (1991), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 91-4525 (5th Cir. June 25, 1991).
The question remains, however, as to whether, by requiring the Agency to designate positions as subject to testing in accordance with the criteria set forth in its regulations, Proposal 2 is nonnegotiable because it violates the Agency's right to determine its internal security practices. We are guided, with respect to this issue, by the Authority's decision in Education.
Proposal 1 in Education required the agency to establish and administer its drug-testing program "in strict compliance with the U.S. Constitution and all applicable laws, rules and regulations and [the parties'] agreement." 38 FLRA at 1074. As particularly relevant here, the disputed proposal in Education "would allow challenges through the grievance and arbitration procedure to Agency actions concerning the establishment and administration of its drug testing program." Id. at 1078.
In finding the disputed proposal in Education to be negotiable, the Authority noted previous decisions holding that proposals which merely required an agency to exercise its rights in accordance with applicable laws, rules, and regulations, and which enabled a union to enforce such compliance through a negotiated grievance procedure, were negotiable. The Authority stated, however, that the Supreme Court's decision in Department of Treasury, Internal Revenue Service v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA), required a reexamination of the Authority's previous decisions. In particular, the Authority pointed to the following statement by the Court:
The [Statute] does not empower unions to enforce all "external limitations" on management rights, but only limitations contained in "applicable laws." Or to put the point differently, there are no "external limitations" on management rights, insofar as union powers under § 7106(a) are concerned, other than the limitations imposed by "applicable laws."
Id. at 1075 (quoting IRS v. FLRA, 110 S. Ct. at 1628-29 (emphasis by the Court)).
The Authority noted that the disputed proposal in Education involved the exercise of management's right under section 7106(a)(1) of the Statute to determine its internal security practices. The Authority stated, in this regard, that unlike management's right to contract out under section 7106(a)(2), which was addressed by the Court in IRS v. FLRA, "[t]he literal wording of section 7106(a)(1) . . . does not contain a requirement that management exercise the rights enumerated in that section 'in accordance with applicable laws.'" 38 FLRA at 1076. The Authority reached the following conclusion on this point:
Given the wording of section 7106(a)(1), therefore, the logical extension of the Court's conclusion in IRS v. FLRA is that nothing in section 7106(a) of the Statute would require management, in the context of a collective bargaining relationship, to exercise its rights under section 7106(a)(1) in accordance with applicable laws. Further, consistent with the Court's conclusion, section 7106(a) of the Statute does not, standing alone, empower unions to enforce through collective bargaining any "external limitations" on the exercise of management's rights under section 7106(a)(1), including those contained in applicable laws.
Id. The Authority concluded, based on this analysis, that by requiring the agency to exercise its right to determine its internal security practices in accordance with external legal limitations, the disputed proposal directly interfered with that right. See also U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 712-13 (1991) (Transportation), petition for review filed sub nom. Professional Airways Systems Specialists Division, District No. 1-MEBA/NMU, AFL-CIO v. FLRA, No. 91-1310 (D.C. Cir. June 28, 1991) (Authority concluded that portion of disputed proposal requiring the agency to use the HHS Guidelines directly interfered with the agency's right to determine its internal security practices); American Federation of Government Employees, AFL-CIO, Local 3457 and U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana, 39 FLRA 1276 (1991) (Interior), petition for review filed sub nom. U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, No. 91-1218 (D.C. Cir. May 10, 1991) (Authority held that a proposal requiring agency to comply with the Constitution as well as applicable laws, rules, and regulations directly interfered with agency's right to determine internal security practices).
The Authority also concluded, however, that although section 7106(a) of the Statute does not subject the exercise of management's rights under section 7106(a)(1) to compliance with applicable laws and regulations, all management rights, including those under section 7106(a)(1), are subject to subsection (b) of section 7106. As such, a proposal requiring an agency to exercise its section 7106(a)(1) rights in accordance with applicable law and regulation "may be negotiable if it constitutes a procedure under section 7106(b)(2) or if it constitutes an 'appropriate arrangement' under section 7106(b)(3)." Education, 38 FLRA at 1077. As relevant here, the Authority found that the disputed proposal was intended as, and constituted, an arrangement, within the meaning of section 7106(b)(3). The Authority concluded as follows:
In our view, . . . employees' interest in maintaining the protections afforded them under the Constitution and applicable laws, rules and regulations outweighs the Agency's interest in insulating its actions from challenges through the negotiated grievance and arbitration procedure. The Agency has not demonstrated that a requirement that it act in a manner consistent with laws, rules and regulations excessively interferes with its right to determine internal security practices under section 7106(a)(1). Indeed, 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. Accordingly, the Authority concluded that the disputed proposal was a negotiable appropriate arrangement. See also Transportation, 40 FLRA at 712; Interior, 39 FLRA at 1278.
In this case, Proposal 2 would, consistent with the parties' understanding, require the Agency to comply with its internal regulation, the GSA Order, in designating the positions subject to drug testing. The Agency asserts that the designation of positions subject to testing constitutes the exercise of its right to determine internal security practices.(7) Consistent with our analysis of Proposal 1, above, as well as the Authority's decision in Education, we find it unnecessary to resolve that issue. Instead, we conclude that even if the designation of the positions subject to testing constitutes the exercise of management's right, and even assuming that requiring the Agency to comply with its regulation directly interferes with that right,(8) Proposal 2 is negotiable as an appropriate arrangement.
We recognize that the Union did not specifically contend that Proposal 2 constitutes an appropriate arrangement. However, the issue raised by Proposal 2, whether a proposal requiring an agency to comply with applicable regulations and enabling a union to challenge such compliance through negotiated grievance and arbitration procedures is negotiable, is substantively similar to the issues raised by the disputed proposals in Education, Interior, and Transportation. In all three cases, proposals requiring agencies to comply with various laws, rules, and regulations in establishing and administering aspects of the agencies' drug testing programs were found to be negotiable appropriate arrangements. As such, "our statutory obligations require that we apply the determination reached in [Education] to this case. To do otherwise would lead to anomalous and conflicting results . . . ." Interior, 39 FLRA at 1278 (citations omitted). We will, therefore, determine whether Proposal 2 constitutes a negotiable appropriate arrangement.
Applying the framework set forth in Kansas Army National Guard, 21 FLRA at 31-33, we conclude that the benefits afforded employees by Proposal 2 outweigh any interference with the Agency's right to determine its internal security practices.
First, the benefit afforded employees by the proposal is significant. Employees could, through the proposal, challenge through negotiated grievance and arbitration procedures the Agency's compliance with its regulation in designating their positions as subject to drug testing. By providing a forum in which to raise concerns over such designation, employee confidence in the drug-testing program as a whole and the Agency's administration of the program should be enhanced. Moreover, without addressing the extent, if any, to which the Agency's compliance with its regulation could be challenged in another forum, negotiated grievance and arbitration procedures generally are accessible to all unit employees. Indeed, the Statute requires such procedures to be "fair and simple, [and] provide for expeditious processing[.]" 5 U.S.C. § 7121(b)(1) and (2).
With respect to the latter point, the Union argues that Proposal 2 is negotiable because it merely defines the scope of the parties' negotiated grievance procedure. The Union points out, with respect to this point, that grievances involving designations of positions for testing are not excluded from the scope of a negotiated grievance procedure by section 7121(c) of the Statute.
It is clear, in this regard, that the grievances contemplated by Proposal 2 are not among the exclusions to negotiated grievance procedures required by the Statute. It is also clear, however, that with respect to a proposal which would subject the exercise of management's rights under section 7106(a) of the Statute to negotiated grievance procedures, section 7121(c) of the Statute does not, standing alone, provide a basis for finding the proposal negotiable. In IRS v. NTEU, the Court held as follows with respect to the relationship between sections 7106 and 7121(c) as they affect grievances over agency decisions resulting from the exercise of a management right:
Subsection 7121(c) removes these agency decisions from the coverage of only § 7121(a)'s negotiated grievance provisions, yet does so whether or not the decisions are made in accordance with applicable laws; § 7106(a) removes the decisions from the coverage of the entire Act, but only to the extent the decisions are in accordance with applicable laws. Thus, although §§ 7106(a) and 7121(c) sometimes overlap in their treatment of these enumerated agency decisions (each removes the decisions from the coverage of § 7121(a) when they are made in accordance with applicable laws), each provision has quite a distinct effect on them as well.
110 S. Ct. at 1628 (emphasis in original) (footnote omitted).
Consistent with the Court's holding, we reject the Union's argument that Proposal 2 is negotiable based solely on the fact that the grievances encompassed by the proposal are not among the exclusions to negotiated grievance procedures listed in section 7121(c).(9) Nevertheless, in weighing the benefits afforded employees by the proposal against the adverse impact on management's rights resulting from it, it is appropriate in our view to consider that grievance procedures are statutorily mandated and that "arbitration is as much a part of the system of self-government in the federal service as in the private sector." Devine v. White, 697 F. 2d 421, 438 (D.C. Cir. 1983) (footnote omitted).
To determine whether a proposal constitutes an appropriate arrangement, we weigh "the competing practical needs of employees and managers" to determine whether the benefit to employees afforded by the proposal outweighs the burden placed by it on the exercise of management's right. Kansas Army National Guard, 21 FLRA at 31-32. In this case, we conclude that the adverse impact on the Agency's right to determine its internal security practices is minimal. The Agency has not, in this regard, asserted an interest in acting without regard to its regulation and no such interest is apparent to us. Indeed, "[i]t is a familiar rule of administrative law that an agency must abide by its own regulations." Fort Stewart Schools v. Federal Labor Relations Authority, 110 S. Ct. 2043, 2051 (1990). With particular regard to the designation of positions as subject to drug testing, the Agency also has an interest, in our view, in assuring employees that its designations are not based on inappropriate criteria. This interest is confirmed by section 3.a(3) of FPM Letter 792-19, which provides, in pertinent part:
(3) When selecting TDPs [Testing Designated Positions], agencies should ensure that the selection process does not result in arbitrary, capricious, or discriminatory selections. Agencies must be able to justify their selection of TDPs as a neutral application of the selection criteria . . . . Agencies are absolutely prohibited from selecting positions for drug testing on the basis of a desire to test particular individual employees.
Emphasis added.
Finally, we note that the Agency's assertion is not based on the content of its regulation. That is, the Agency does not assert that its regulation is, in any way, impossible of review or application by an arbitrator. Moreover, as noted previously, the Agency is free under Proposal 2 to modify, rescind, or replace the regulatory criteria by which it designates positions as subject to testing.(10)
On balance, we conclude that the benefit afforded employees by Proposal 2 outweighs the minimal adverse impact on management's right. Accordingly, Proposal 2 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
V. Order
The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposals 1 and 2.(11)
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. A third proposal, concerning the reassignment of employees declining to be tested for drugs, was withdrawn by the Union in its reply brief and will not be addressed here.
2. The Agency refers to FPM Letter 792-16 in both its initial and supplemental statements of position. The Office of Personnel Management issuance was superseded by FPM Letter 792-19, dated December 27, 1989. However, the new issuance effected no substantive changes bearing on this dispute. Accordingly, in all instances where the prior FPM letter is cited by either party, we will apply the superseding FPM letter.
3. The district court did not find that FPM Letter 792-16 was not a Government-wide regulation. Rather, it invalidated the FPM letter because the Office of Personnel Management (OPM) did not promulgate the letter in accordance with the requirements of the Administrative Procedure Act. 685 F. Supp. at 1357. On appeal, the court of appeals noted that the issue of the FPM letter's validity was moot because OPM had cured the defect found by the district court. 891 F.2d at 100 n.1. The Authority has held that FPM Letter 792-19 constitutes a Government-wide regulation. International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1524 (1991). We will, therefore, not address this argument further.
4. The Agency does not assert that the proposal is nonnegotiable because it conflicts with an Agency regulation for which a compelling need exists. We will, therefore, not consider that issue. Compare U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 194 (1990) ("nothing in the Statute prevents an agency from agreeing to collective bargaining agreement provisions that alter or modify the policies established by an agency rule or regulation, even one for which a compelling need has been established.").
5. The Agency does not assert that Proposal 2 is nonnegotiable because it conflicts with an Agency regulation for which a compelling need exists. See n.4 supra.
6. Chapter 2, Section 3 of the GSA Order provides, in relevant part:
3. Determination of positions.
a. Positions designated for testing in GSA are characterized by critical safety or security responsibilities as related to the mission of GSA. The job functions associated with these positions directly and immediately relate to public health and safety, the protection of life and property, law, enforcement, or national security. These positions are identified for random drug testing because they require the highest degree of trust and confidence. The Administrator reserves the right to add or delete positions determined to be testing designated positions pursuant to the criteria established in the Executive Order;
b. Among the factors considered in determining a testing designated position, are the extent to which GSA:
(1) Considers its mission inconsistent with illegal drug use;
(2) Is engaged in law enforcement;
(3) Must foster public trust by preserving employee's reputation for integrity, honesty and responsibility;
(4) Has national security responsibilities;
The extent to which the position considered--
(1) Authorizes employees to carry firearms;
(2) Gives employees access to sensitive information;
(3) Authorizes employees to engage in law enforcement;
(4) Requires employees, as a condition of employment, to obtain a security clearance;
(5) Requires employees to engage in activities directly affecting public health or safety;
c. Heads of Services and Staff Offices and Regional Administrators will periodically review testing designated positions . . . .
(1) The final determination of testing designated positions will be made by the Associate Administrator for Administration.
Attachment 3 to Petition for Review at 1-2.
7. Contrary to the Agency's argument, the Authority did not decide this issue 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 1046 (1988). In finding nonnegotiable a proposal prohibiting drug testing of certain employees in certain circumstances, the Authority held that as "the use of random testing constitutes an exercise of management's right to determine its internal security practices[,]" the Authority would not "review the [a]gency's determination that the establishment of a drug testing program involving random tests for the positions which it has identified as sensitive positions is necessary to protect the security of its installations." Id. at 1056.
8. Although the disputed proposals in Education, 38 FLRA at 1074, and Interior, 39 FLRA at 1276-77, required compliance with "all applicable laws, rules, and regulations . . . ," the Authority did not address specifically the effect of requiring compliance with internal agency regulations on management's right to determine internal security practices.
9. The Court held also that section 7121 did not constitute an "applicable law," within the meaning of section 7106(a)(2) of the Statute. 110 S. Ct. at 1628.
10. We express no view on the extent to which the Agency would be obligated under the Statute to negotiate over the substance of such criteria or over the impact and implementation of changes in them.
11. In finding Proposals 1 and 2 to be negotiable, we make no judgment as to their merits.