[ v42 p567 ]
42:0567(36)NG
The decision of the Authority follows:
42 FLRA No. 36
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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute).(1) The appeal concerns the negotiability of seven proposals involving implementation of the Agency's drug testing program.
Proposal 1 requires the Agency to conduct all drug testing in accordance with the scientific and technical guidelines promulgated by the Department of Health and Human Services (HHS) and to use methods and equipment that meet the requirements set forth in the guidelines. We find that Proposal 1 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 2 is not sufficiently specific and delimited in form and content to permit a determination as to its negotiability.
Proposal 3 provides that drug tests will be given in a sanitary, secluded area that accords employees visual and auditory privacy. We find the proposal to be negotiable.
Proposal 4 requires the Agency to use the gas chromatography/mass spectrometry test to confirm initial positive drug tests. We find that Proposal 4 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 5 would require the Agency to permit employees to return the next day if they are unable to provide a urine specimen of sufficient volume. We find that Proposal 5 is nonnegotiable under section 7117(a)(1) of the Statute.
Proposal 6 requires the Agency to collect, handle and transport urine specimens in accordance with strict chain of custody procedures. We conclude that Proposal 6 is not in dispute.
Proposal 7 states that the authorized collection agent will collect all specimens. We find that the proposal is negotiable.
II. Proposal 1
Section 5. Methods and Procedures for Testing
All drug testing will be conducted in accordance with the HHS scientific and technical guidelines. The methods and equipment used will meet the requirements as set forth in the guidelines.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 1 is ambiguous and, unless clarified by the Union, should be dismissed. The Agency states, however, that if the proposal is not intended to preclude the application of other applicable guidelines, such as the "Department's Plan," the proposal would be negotiable. Statement of Position at 2. On the other hand, the Agency argues that if the proposal is intended to preclude the application of relevant guidelines other than those referenced in the proposal, the proposal would be nonnegotiable because it would directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency further argues that to the extent the proposal would preclude the application of the "Department's Plan," for which there is a compelling need "under the requirements of Section 2 of the Executive Order, . . ." the proposal would be nonnegotiable under section 7117(a)(2) and (b) of the Statute and section 2424.11 of the Authority's Rules and Regulations. Id.
1. Union
The Union states that the intent of Proposal 1 is to incorporate into the parties' agreement the standards and requirements contained in the Mandatory Guidelines for Federal Workplace Drug Testing issued by HHS, 53 Fed. Reg. 11970-89 (1988) (Guidelines). The Union states that the proposal would neither include nor exclude any other rule or regulation. The Union asserts that to the extent there may be an inconsistency between the proposal and Agency policy, rule, or regulation, there would be no bar to negotiations because there is no compelling need for such policy, rule, or regulation. The Union also states that the proposal is consistent with an Agency policy entitled "Drug Free Workplace Policy and Procedures," which requires the Agency to adhere to all scientific and technical guidelines for drug testing programs that are promulgated by HHS. Union Response at 7.
Finally, the Union argues that the Authority previously has found negotiable proposals that reference regulations, as long as such proposals do not otherwise restrict the exercise of management rights. Citing National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980), the Union argues that as Proposal 1 would incorporate provisions of a Government-wide regulation into the parties' agreement, the proposal is negotiable.
B. Analysis and Conclusions
Proposal 1 would require the Agency to conduct its drug testing program in accordance with the scientific and technical Guidelines that are issued by HHS and to use the methods and equipment that meet the requirements of those Guidelines. We find, contrary to the Agency, that the proposal is sufficiently specific to enable us to provide the parties with a negotiability determination.
The first sentence of Proposal 1 is virtually identical to a portion of a proposal found to be negotiable in U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 711-12 (1991), petition for review filed sub nom. Professional Airways Systems Specialists Division, District No. 1-MEBA/NMU, AFL-CIO v. FLRA, No. 91-1310 (D.C. Cir. June 28, 1991) (FAA), which required the employer to use the HHS scientific and technical Guidelines for its drug testing program. In that case, we relied on our earlier decision 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, 1074-79 (1990) (Member Talkin dissenting, as to other matters) (Department of Education), decision on reconsideration, 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), which involved a proposal requiring the agency to establish and administer its drug testing program in accordance with applicable laws, rules and regulations, among other things. We concluded that although that portion of the proposal 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) of the Statute. In reaching that result, we noted that an agency's implementation of a drug testing program could adversely affect employees and that as the existence of applicable laws, rules and regulations already serves to limit agency action, an agency's interest in being able to act without regard to such restrictions is negligible.
In FAA, we found that the same considerations that applied to finding the proposal negotiable as an appropriate arrangement in Department of Education applied equally to a requirement that the agency use HHS Guidelines in its drug testing program. As the first sentence of the proposal here is virtually identical to that in FAA, we conclude, for the same reasons, that it is negotiable as an appropriate arrangement.
We also find that the second sentence of the proposal, mandating the use of methods and equipment that meet the requirements contained in the Guidelines, constitutes a negotiable appropriate arrangement. Initially, however, we find that the second sentence directly interferes with the Agency's right to determine its internal security practices.
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, 1059 (1988) (Rock Island I), remanded as to other matters sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988) (Order), decision on remand, 33 FLRA 436 (1988) (Rock Island II), rev'd in part and remanded as to other matters sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground, Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 936 (1990) (Rock Island III), the Authority held that management's determination of the methods and equipment to be used in drug testing is an exercise of its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Authority also held that limitations on the range of management's choices as to the methods and equipment used to conduct drug tests establish substantive criteria governing the exercise of management's right to determine its internal security practices. Here, the second sentence of Proposal 1 would require the Agency to use the methods and equipment specified in the scientific and technical Guidelines issued by HHS. As such, this portion of the proposal imposes substantive criteria governing the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute and, therefore, directly interferes with the exercise of that right. However, the requirement contained in the second sentence of the proposal is comparable to that contained in the first sentence of the proposal. Both sentences require the Agency to fulfill its responsibilities under the drug testing program in accordance with HHS Guidelines. For the same reasons that led to a finding that the first sentence constitutes a negotiable appropriate arrangement, we conclude that the second sentence also is negotiable as an appropriate arrangement.
We reject the Agency's contention that Proposal 1 is nonnegotiable under section 7117(a)(2) and (b) of the Statute because it is inconsistent with the "Department's Plan" for which there is a compelling need under section 2 of Executive Order 12564.(2) The Agency has not provided a copy of its Plan or explained how Proposal 1 is inconsistent with the Plan. Further, the Agency has not provided any evidence or argument to support its contention that there is a compelling need for the Plan so as to bar negotiations over Proposal 1. Under these circumstances, there is no basis on which to conclude that Proposal 1 is nonnegotiable under section 7117(a)(2) and (b) of the Statute.
III. Proposal 2
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to assure drug testing is reliable:
A. Under the terms of this agreement, affected employees will report to the designated location to be tested. [Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 2 is ambiguous and, therefore, that the petition for review as to this proposal should be dismissed. The Agency asserts, in this regard, that the phrase, "Under the terms of this agreement," could be interpreted to refer to other proposals that are nonnegotiable. The Agency argues, therefore, that Proposal 2 is nonnegotiable to the extent that it might incorporate nonnegotiable aspects of other proposals.
2. Union
The Union states that the intent of Proposal 2 is to inform employees of the first procedural step in the taking of urine specimens by describing that step in the parties' agreement. The Union asserts that the proposal concerns a procedural matter and, therefore, is negotiable. Additionally, the Union disputes the Agency's claim that, by its terms, Proposal 2 references nonnegotiable proposals. The Union states that if a matter is nonnegotiable, it will either not be in the agreement or will not be an enforceable provision, if contained in the agreement.
B. Analysis and Conclusions
We conclude that the proposal is not sufficiently specific and delimited to enable us to determine whether it is negotiable. It is not clear from the record what terms of the parties' agreement are being referenced by the proposal. The Union offers only the explanation that the parties' agreement could not contain nonnegotiable provisions or, if such provisions were in the agreement, they could not be enforced. Without an explanation from the Union delineating the specific terms of the agreement, we are unable to determine the effect of the proposal or whether it is consistent with applicable law and regulation.
Proposal 2 contains the same defect as a proposal in Department of Education, 38 FLRA at 1092-94, which the Authority found was not sufficiently specific in form and content to enable the Authority to determine the proposal's negotiability. The proposal in that case provided that "[u]pon direction of management under the terms of Section 3 above, affected employees will report to the designated location to be tested." Id. at 1092. We found that without an explanation from the union concerning the terms of "Section 3," we were unable to determine the effect of the proposal or whether it was consistent with applicable law and regulation. Therefore, we dismissed the union's petition for review concerning that proposal.
We make the same findings here. A petition for review that does not present a proposal sufficiently specific and delimited to enable the Authority to make a negotiability determination does not meet the conditions for review set forth in 5 U.S.C. § 7117(c) and 5 C.F.R. § 2421.1. National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Houston, Texas, 32 FLRA 1265 (1988). Consequently, we will dismiss the petition for review as to Proposal 2.
IV. Proposal 3
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to assure drug testing is reliable:
B. Tests will be given in a sanitary, secluded area which provides the employee with both visual and auditory privacy. [Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 3 is nonnegotiable because it conflicts with Executive Order 12564 and the Guidelines and because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
More specifically, the Agency notes that both section 4(c) of the Executive Order and section 2.2(e) of the Guidelines(3) provide for privacy during the collection of a urine specimen "unless there is reason to believe that a particular individual may alter or substitute the specimen to be provided." 53 Fed. Reg. at 11980. The Agency argues that the proposal would require the Agency to accord employees "complete privacy," both visual and auditory, in all circumstances, thereby preventing the Agency from assigning an observer, which the Agency claims is permitted by section 4(c) of the Executive Order and section 2.2(e) of the Guidelines. Statement of Position at 4.
The Agency also argues that Proposal 3 directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency asserts that under section 7106(a)(1), management can unilaterally determine the "techniques to assure the internal security of an agency." Statement of Position at 5. The Agency maintains that it might be unable to obtain a sanitary, secluded area that provides visual and auditory privacy, and that the proposal would delay testing in emergency situations, such as post-accident or reasonable suspicion testing, when the Agency-designated collection sites may not be accessible. Additionally, the Agency argues that auditory privacy may not be appropriate where there is reason to believe that an employee may alter or substitute a specimen. Therefore, the Agency argues that the proposal severely and impermissibly restricts its right to determine its internal security practices.
The Agency further argues that the proposal is similar to a proposal found nonnegotiable in Rock Island I, 30 FLRA at 1079-81, and that Proposal 3 is outside the duty to bargain on the same basis.
2. Union
The Union states that the intent of Proposal 3 is to inform employees of the second procedural step in the taking of urine specimens. The Union further states the proposal is "a procedure and an appropriate arrangement to alleviate the adverse effect of the management decision to invade and violate an employee's privacy." Petition for Review at 2; Union Response at 4-5.
The Union asserts that the proposal "is not intended to preclude the appropriate, limited, and controlled observation under the circumstances described in the HHS Guidelines." Union Response at 5. The Union disputes the Agency's meaning of the term privacy. Rather, the Union asserts that the term privacy "includes whatever degree of 'privacy' is reasonable under the circumstances. However, by definition, it can never mean a complete lack of privacy." Id. at 10-11 (footnote omitted). The Union also contends that the proposal does not prohibit the use of public rest rooms, but simply means that "reasonable privacy will be afforded whatever the circumstances." Id. at 11. However, the Union explains that the proposal would require that if a public rest room is used, it must be sanitary and secluded. The Union further explains that secluded means "mainly out of the view of others. Of course, if circumstances require direct observation of the collection of urine, then it would not prohibit an authorized observer." Id. at 12.
B. Analysis and Conclusions
We find that Proposal 3 does not conflict with section 4(c) of the Executive Order or section 2.2(e) of the Guidelines. We also find it unnecessary to determine whether the proposal directly interferes with management's right to determine its internal security practices because even if there were such an interference, we would nonetheless find that the proposal constitutes a negotiable appropriate arrangement. Therefore, the proposal is within the duty to bargain.
Section 4(c) of the Executive Order provides, in relevant part, 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 Authority previously has addressed the requirements of section 4(c) of the Executive Order in the context of proposals that are comparable to Proposal 3. In Department of Education, 38 FLRA at 1094, the union sought to bargain over a proposal that would require tests to be given in a sanitary, secluded area that provides employees with privacy. In finding the proposal negotiable, the Authority found that section 4(c) "mandates that agencies allow employees individual privacy when providing urine samples." Id. The Authority also found that "[a]n agency may limit an employee's privacy only if the agency has reason to believe that the employee will attempt to alter or substitute his or her sample." Id. (4) Subsequently, in National Federation of Federal Employees, Council of GSA Locals and General Services Administration, 41 FLRA 728 (1991) (GSA), the Authority found negotiable a proposal that permitted observation when collection site personnel had reason to believe that an employee might alter or substitute a specimen based on criteria set forth in an agency regulation. The Authority found that section 4(c) of the Executive Order does not mandate direct observation in any circumstances, but simply provides an exception to the requirement that employees be afforded privacy. The exception that is stated in section 4(c) is where an agency has reason to believe that an employee may alter or substitute a specimen.
The Agency argues that the proposal conflicts with section 4(c) of the Executive Order by preventing the Agency from assigning an observer during the administration of a drug test. We disagree. The Executive Order does not require observation in any circumstances. Therefore, the proposal is not inconsistent with section 4(c). Similarly, the proposal is not inconsistent with section 2.2(e) of the Guidelines, which is essentially a restatement of section 4(c) of the Executive Order.(5) As section 2.2(e) of the Guidelines does not require direct observation during the administration of a drug test, there is no inconsistency between the proposal and that section of the Guidelines.
We also reject the Agency's contention that the proposal requires both auditory and visual privacy in all circumstances. As explained by the Union, the proposal "is not intended to preclude the appropriate, limited, and controlled observation under the circumstances described in the HHS Guidelines[,]" and the degree of privacy to be accorded to employees is that which is "reasonable under the circumstances." Union Response at 5, 11. We find that the Union's explanation as to the manner in which the proposal is intended to operate does not require auditory and visual privacy in all circumstances. Instead, the proposal is consistent with those provisions of the Guidelines that require direct observation in certain defined circumstances. More specifically, sections 2.2(f)(13) and 2.2(f)(16) of the Guidelines require direct observation by a same gender collection site person when, respectively: (1) the temperature of a specimen falls outside a prescribed range, thus giving rise to a reason to believe that the employee may have altered or substituted the specimen, or (2) whenever there is reason to believe that a particular individual may alter or substitute the specimen to be provided, thus necessitating that a second specimen be obtained. Based on the Union's explanation, we find that the proposal would not affect the Agency's ability to restrict an employee's privacy in the circumstances required by the Guidelines.(6)
Finally, using the framework set out in Department of Education, we find it unnecessary to determine whether the proposal directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. We find that even if the proposal directly interferes with the exercise of that right, the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In reaching this result, we note, initially, that where a union indicates that a proposal is designed to offer benefits or protections for employees, we will assess whether the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. To determine whether a proposal constitutes an appropriate arrangement, we must decide whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right, and whether the proposal is appropriate because it does not excessively interfere with the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).
The Union states that the proposal is designed to alleviate the adverse effects on employees' privacy interests resulting from the administration of drug tests. As such, we find that the proposal is intended to be an arrangement. We further find, afer balancing the competing interests of employees and the Agency, that the interests of the employees are of greater significance and outweigh those of the Agency. Specifically, the benefits to employees that would inure under the proposal relate to the protection of personal privacy. We view personal privacy to be of paramount concern, particuarly in light of the requirement for individual privacy contained in the Executive Order. In contrast, we find that only a limited burden would be imposed on the exercise of management's right to administer its drug testing program. Any interference with the exercise of management's right, therefore, is minimal. Accordingly, we find that the proposal is a negotiable appropriate arrangement. See Department of Education, 38 FLRA at 1099, in which we reached a similar result.
V. Proposal 4
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to assure drug testing is reliable:
C. Any "positive" results will again be verified by a 2nd Gas Chromatography/Mass Spectrometry Test [GC/MST]. [Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 4 is nonnegotiable because it interferes with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. The Agency notes that under Rock Island I, 30 FLRA at 1059, the determination of the methods and equipment to be used in drug testing is an exercise of management's right to determine its internal security practices.
The Agency further argues that proposals that incorporate specific regulatory requirements into negotiated agreements, thereby establishing substantive contractual limitations on agencies' discretion to exercise their rights, are nonnegotiable. The Agency acknowledges, in this connection, that the wording of Proposal 4 follows section 2.4(f) of the Guidelines, which authorizes the use of the gas chromatography/mass spectrometry (GC/MS) technique to confirm all initial positive drug test results. The Agency argues, however, that as the proposal would incorporate into the parties' agreement the requirement to use a specific technique contained in the Guidelines, the proposal would establish a contractual obligation with which the Agency would have to comply. The Agency argues that if the provisions of the Guidelines were revised or eliminated, the Agency would nonetheless have to comply with the contractual limitation, thereby substantively limiting the Agency's discretion to determine its internal security practices.
2. Union
The Union states that the intent of Proposal 4 is to inform employees of the second step in the "taking and testing of urine specimens." Union Response at 5. The Union also states that the intent of the proposal is to ensure that a reliable test is used in order to guard against inaccurate results. The Union asserts that this would be accomplished by requiring that the Agency use the best technology available. The Union also states that the proposal is drafted to "track" the Guidelines and the Medical Review Officer Manual. Id. Additionally, the Union asserts that the proposal is drafted to reflect the Agency's own drug testing procedures which also require the use of the GC/MS test to confirm initial positive drug test results.
B. Analysis and Conclusions
We find that the proposal directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. However, we also find that the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 4 requires that any positive test result will be verified by a second gas chromatography/mass spectrometry (GC/MS) test. Initially, we note that the proposal references a "2nd" GC/MS test. However, as both parties argue the applicability of the Guidelines, we assume for purposes of this decision that the GC/MS test referenced in the proposal is the technique used to test an initial positive result, and that the proposal is not intended to require that there be two GC/MS tests.
Section 2.4(f)(1) of the Guidelines requires that '[a]ll specimens identified as positive on the initial test shall be confirmed using gas chromatography/mass spectrometry (GC/MS) techniques . . . ." 53 Fed. Reg. 11983. The Agency argues that by incorporating a specific technique into the parties' agreement, with which the Agency would have to comply, the proposal impermissibly imposes a substantive limitation on the exercise of the Agency's right to determine its internal security practices. We agree.
As we found in connection with Proposal 1, proposals that limit the range of management's determination as to the methods and equipment that are used to conduct drug tests directly interfere with management's right to determine its internal security practices by establishing substantive criteria governing the exercise of that right. Proposal 4 specifies the particular technique that the Agency will use to confirm initial positive test results. In this manner, we note that Proposal 4 is more restrictive than the second sentence of Proposal 1 which required the Agency to use whatever methods and equipment are specified in the Guidelines. As the Agency argues, management would be required to use the technique specified in Proposal 4 for the duration of the parties' agreement, notwithstanding any revision of section 2.4(f)(1) of the Guidelines. We find that as the proposal would require the use of a particular technique for the duration of the parties' agreement, the proposal establishes a substantive criterion on the exercise of the Agency's right to determine its internal security practices.
However, we further find that the proposal constitutes a negotiable appropriate arrangement for employees adversely affected by the exercise of that management right.
The Union states that the intent of the proposal is to ensure that a reliable test is used to guard against inaccurate test results. To this end, the Union states that the proposal requires the Agency to use the best technology available. We find that the proposal thus constitutes an arrangement for employees adversely affected by management's right to determine its internal security practices.
We further find that the proposal does not excessively interfere with the exercise of management's right. The proposal concerns confirmatory testing of specimens that initially test positive. Employees who test positive may be subject to various personnel actions, including removal from a sensitive position. See section 5 of Executive Order 12564. Additionally, those employees also may be subject to disciplinary action. Clearly, it is in the interest of employees to ensure that the best available technology is used for the confirmatory testing process. The risk of inaccurate results, with its attendant negative consequences, thus would be minimized by the use of the GC/MS technique. Therefore, we view the benefits to employees under the proposal to be significant. In contrast, the effect on the Agency would be minimal. The Agency is already required to use the GC/MS technique under section 2.4(f)(1) of the Guidelines. There has been no assertion that a better technique is presently available that could be used by the Agency or that there is an impending change in the requirements of the Guidelines. If the requirement to use the GC/MS technique set forth in the Guidelines were to be changed, however, the Agency, at most, would be required to use the GC/MS only for the duration of the parties' agreement. Also, nothing in the proposal would prevent the Agency from using additional confirmatory techniques, as appropriate. On balance, we conclude that the proposal does not excessively interfere with the Agency's right to determine its internal security practices.
VI. Proposal 5
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to assure drug testing is reliable:
D. If sufficient volume of urine is not able to be provided within a reasonable period of time on the appointed day, the selectee may return on the next day until the necessary amount is voided.
A. Positions of the Parties
1. The Agency
The Agency contends that Proposal 5 is nonnegotiable because it is inconsistent with the Guidelines and interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
The Agency argues that Proposal 5 is inconsistent with the instructions contained in section 2.2(f)(10) of the Guidelines that a collection site person must follow when an employee is unable to provide at least 60 milliliters of urine. The Agency argues that by allowing employees to return the following day to produce a urine specimen of sufficient size, employees would have the opportunity to purge themselves of an illicit drug so as to test negative on the day of the test. The Agency states that allowing employees to return the next day would frustrate the purpose of the drug testing program, which is to detect illegal drug users, and that the proposal thereby interferes with the Agency's right to determine its internal security practices.
The Agency also views the proposal as essentially allowing a type of split sample if an employee provides a portion of the sample on one day and then is permitted to return the next day to provide an additional sample. The Agency argues that such a split sample is inconsistent with the "Medical Review Officer Manual: A Guide to Evaluating Urine Drug Analysis" and the Guidelines.
2. The Union
The Union states that Proposal 5 is intended to assure that an adequate amount of urine is collected for analysis. The Union states that the proposal "does not preclude additional measures such as those described in the HHS Guidelines." Petition for Review at 3. The Union also asserts that the instructions in the final Guidelines and the Medical Review Officer Manual are advisory and not mandatory. Further, the Union maintains that allowing employees to return the following day to produce a urine specimen of sufficient size would not provide enough time for the employees to purge themselves of illegal drugs and avoid the detection of such drugs in their bodies because what is being tested are metabolites, or indicators of drug use that "remain in the system for days, weeks, even months after ingestion of a drug." Union Response at 14.
B. Analysis and Conclusions
Proposal 5 would require the Agency to permit employees who are being tested for illegal drug usage to return the next day for testing when they cannot provide a urine specimen of sufficient volume.
Proposal 5 is virtually identical to Provision 4 found nonnegotiable in American Federation of Government Employees, Local 1808 and Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA 1439, 1445 (1990) (Member Talkin dissenting, as to other matters) (Sierra Army Depot). In that case we found that by providing for an employee who was unable to supply a urine sample of sufficient volume to return the next day, the provision at issue was inconsistent with section 2.2(f)(10) of the Guidelines, which provides that the employee may be given liquid to drink and that the collection site person is to contact the appropriate authority for guidance. Because Proposal 5 similarly allows an employee who is unable to provide a urine sample of sufficient volume to leave the collection site and return the next day, rather than to remain while additional fluids are consumed and until guidance is received from an appropriate authority, the provision is inconsistent with section 2.2(f)(10) of the Guidelines.
Accordingly, consistent with our decision in Sierra Army Depot, we find that Proposal 5 is inconsistent with 2.2(f)(10) of the final Guidelines, which previously have been found to be Government-wide regulations. Aberdeen Proving Ground, 890 F.2d at 469-70; Rock Island II, 33 FLRA at 438-39. Therefore, the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute. Inasmuch as Proposal 5 is inconsistent with a Government-wide regulation and is nonnegotiable under section 7117(a)(1) of the Statute, we need not consider the other arguments raised by the parties.
VII. Proposal 6
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to assure drug testing is reliable:
E. The collection, handling, and transportation of all specimens will be in accordance with the HHS Strict Chain of Custody Procedures.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 6 is "ambiguous" and, unless clarified by the Union, the petition for review as to this proposal should be dismissed. The Agency argues that the word "strict" in the proposal subjects the proposal to more than one interpretation. The Agency asserts that if the proposal intends that the collection, handling and transportation of urine specimens be done in accordance with the chain of custody procedures of the Guidelines, "the proposal would be negotiable." Statement of Position at 13. On the other hand, the Agency asserts that if, by the term "strict," the proposal intends to hold the Agency to a higher standard than provided in the Guidelines, the proposal would interfere with management's right under section 7106(a)(1) to determine the internal security practices of the Agency.
2. Union
The Union states that the intent of Proposal 6 is to incorporate the procedures of the Guidelines. The Union further states that the proposal is "worded" to "reflect whatever is in the applicable regulations[.]" Union Response at 6.
B. Analysis and Conclusions
The Agency asserts that if Proposal 6 intends that the collection, handling and transportation of urine specimens be done in accordance with the chain of custody procedures of the Guidelines, the proposal would be negotiable. The Union states that the intent of the proposal is to incorporate the procedures of the Guidelines, and is "worded" to "reflect whatever is in the applicable regulations." Id. As nothing in the record indicates a contrary intent, we find that Proposal 6 is designed to require the Agency to do nothing more or less than to adhere to the chain of custody procedures in the Guidelines. Given this interpretation of the proposal, on which basis the Agency concedes the proposal is negotiable, we find that Proposal 6 is not in dispute. Accordingly, we will dismiss the petition for review as to Proposal 6.
VIII. Proposal 7
Section 5. Methods and Procedures for Testing
The employer agrees that the following procedure will be utilized to assure drug testing is reliable:
F. The authorized collection agent will collect all drug testing specimens. [Only the underlined portion is in dispute.]
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 7 is nonnegotiable under section 7106(a)(2)(B) of the Statute because it interferes with management's rights to assign work and determine the personnel by which Agency operations will be conducted.
The Agency states that there may be several collection site persons at the collection site, in addition to the authorized collection agent specified in the proposal. By specifying that only the collection agent can collect urine specimens, the Agency argues that the proposal restricts the exercise of management's rights. The Agency notes that the Authority consistently has held that proposals that assign specific duties to particular individuals interfere with management's right to assign work under 7106(a)(2)(B) of the Statute and, therefore, are nonnegotiable. The Agency argues that a similar result should be reached here.
2. Union
The Union contends that the proposal does not require management to assign specific duties to particular individuals and, therefore, that the proposal is a negotiable procedural arrangement. The Union states that Proposal 7 contains the same procedure prescribed in the Guidelines and the Agency's own policy. The Union further states that an authorized agent is "one who is officially designated by the agency to collect the specimens[,]" and that the proposal seeks "to have only duly designated personnel . . ." perform the collection task. Id. at 17, 18. The Union adds that the proposal is an "obvious safeguard . . ." to avoid compromising test results. Id. at 18.
B. Analysis and Conclusions
In Department of the Army, 42 FLRA No. 35, we found an identical proposal to be within the duty to bargain. We found that that proposal did not interfere with the Agency's right to assign work. We further noted that section 2.2 of the Guidelines sets forth the standards to which agencies must adhere in establishing procedures governing the handling and transportation of urine specimens from one authorized individual to another. We found there, as we do here, that the proposal would not require the agency to assign specific duties to particular individuals or prescribe the identity or qualifications of the individuals authorized to make collections. We further found, as we do here, that the proposal did not prevent the agency from adhering to the standards contained in the Guidelines. We concluded that the proposal was within the duty to bargain.
We reach the same result here. Accordingly, for the reasons more fully set forth in Department of the Army, we conclude that Proposal 7 is negotiable.
IV. Order
The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on Proposals 1, 3, 4 and 7. (7) The petition for review as to Proposals 2, 5 and 6 is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Authority directed the parties to file supplemental briefs addressing the applicability of Federal court decisions, issued during the pendency of this case, which involved Federal agency drug testing programs. Neither party filed a supplemental brief.
2. Section 2 of the Executive Order, among other things, requires each Executive agency to develop a plan for achieving a drug-free workplace.
3. Although it referred to section "2.1(e)" of the Guidelines, the Agency obviously intended to refer to section 2.2(e) of the Guidelines.
4. In Department of Education, the Authority also reexamined the proposal in Rock Island I on which the Agency now relies. 38 FLRA at 1096. As the Authority stated that it would no longer follow the interpretation of that proposal, we will not address further the Agency's argument here that Proposal 4 is to the same effect as the proposal in Rock Island I.
5. Section 2.2(e) of the Guidelines states as follows:
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.
6. We note that in American Federation of Government Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 42 FLRA No. 35 (1991) (Department of the Army), we found that an identically worded proposal was inconsistent with sections 2.2(f)(13) and (16) of the Guidelines. We reached that result based on the fact that the intent of the proposal was to preclude direct observation in circumstances where the Guidelines require such observation.
7. In finding these proposals negotiable, we make no judgment as to their merits.