DEPARTMENT OF THE TREASURY U.S. CUSTOMS SERVICE WASHINGTON, D.C. and NATIONAL TREASURY EMPLOYEES UNION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
NATIONAL TREASURY EMPLOYEES UNION
Case No. 90 FSIP 92
DECISION AND ORDER
The National Treasury Employees Union (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the U.S. Customs Service, Washington, D.C. (Employer).
After investigation of the request for assistance, the Panel determined that the dispute should be resolved through an informal conference between Chief Legal Advisor Donna M. Di Tullio and the parties. If any issues remained unresolved thereafter, the parties were to submit their final offers and written statements of position and rebuttal arguments to the Panel. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse.
On May 3, 1990, Ms. Di Tullio met with the parties who were able to resolve four of six issues regarding drug testing. The parties submitted their final offers on the remaining issues along with written submissions in support of their proposals, and the Panel has considered the entire record.(1)
The Employer's mission is to ensure compliance with U.S. Customs laws through the clearance of overseas passengers and cargo. The bargaining unit consists of approximately 12,000 employees in a consolidated unit who are stationed throughout the United States and abroad; about one-half of the unit members hold positions as Customs Inspectors and carry firearms. The parties' last collective-bargaining agreement expired on August 24, 1990; negotiations are under way for a successor.
The dispute herein arose during negotiations over an agreement concerning the Employer's Drug-Free Workplace Program to be implemented pursuant to Executive Order (E.O.) 12564 dated September 15, 1986, which calls for agencies to put into effect procedures to eradicate and deter the use of illegal drugs among Federal workers. Under the Employer's program, those targeted for random drug testing are employees in sensitive or so-called testing-designated positions; the Employer also may test any employee: (1) when there is a reasonable suspicion of drug use, (2) following a job-related accident (termed "post-incident testing"), or (3) upon application for employment in certain types of sensitive positions, i.e., Customs Inspector or Import Specialist.
ISSUES AT IMPASSE
The parties disagree over (1) the extent of the Union's involvement during presentations for employees on the implementation of the Drug-Free Workplace Program, and (2) procedures and arrangements for those employees who avail themselves of the " safe harbor" provisions of E.O. 12564, section 5(b).
1. Presentations for Employees on the Implementation of the Drug-Free Workplace Program
a. The Union's Position
The Union proposes that a Union representative be given an opportunity to be present at the live or video presentations which the parties have agreed shall be made for all employees concerning the implementation of the Drug-Free Workplace Program. The Union representative would be acknowledged by the Employer at the start of the meeting and given an opportunity to ask questions on behalf of employees. Also, the representative would be allowed to make a brief statement in a "nondisruptive fashion" about the drug-testing program and the contents of the parties' agreement on drug testing. As an alternative, the Union proposes that the preceding sentence only be replaced with wording which would allow the Union representative, at the conclusion of the presentation, a 15-minute period to address employees concerning the drug-testing program and the parties' agreement, during which employees would remain on official time.
Under Article 2 of the parties' agreement on drug testing, the Employer is to brief all employees on the provisions of the agency's Drug-Free Workplace Program, the types and effects of illegal drugs, the Employee Assistance Program, and other relevant treatment, rehabilitation, and confidentiality issues. The Union maintains that such presentations to employees are "formal discussions" under the Statute at which it has a right to be represented.(2) The Employer has never disputed that the meetings are formal discussions. Moreover, Federal Labor Relations Authority (Authority) case law supports the Union's position in this regard. That is, the Authority has found a formal discussion to exist where the material covered concerned personnel policies, programs and general conditions of employment, such as alcoholism and drug abuse, standards of conduct, and discipline.(3) Since continued employment is conditioned upon employees' being drug free, the subject of the meeting, drug testing and the possible disciplinary actions which may result from positive testing, is a critical matter for Union involvement. Even though nonbargaining-unit employees are to attend the sessions, the Union nonetheless has the right to be present.
The Authority has determined that a union representative's right under the Statute to attend a formal discussion may involve more than a mere right to be present. "It also means that a union representative has a right to comment, speak, and make statements.(4) Thus, the Union's proposals would permit its representative to be an active participant in the meeting; its first alternative proposal would ensure that the Union would not be disruptive to the process so as to help allay the Employer's fears that Union representation at such meetings would lead to confrontation and debate over drug testing. Although the Union has opposed drug testing in general, its objective at meetings with employees is to present in a nondisruptive fashion the Union's perspective on the issues. Limiting the Union's representative to merely identifying him or herself and announcing the Union's office hours and location as the Employer proposes is contrary to the intent of section 7114(a)(2)(A) of the Statute.
In order to further "placate" the Employer's concerns about disruptive Union conduct, the Union offers another alternative proposal which would permit the Employer to conduct the meeting without Union participation, but would give the Union 15 minutes at the end of the Employer's presentation to make "any points it may have wished to make during the course of the meeting." Again, the intent is to demonstrate that the Union is not looking for a verbal confrontation with management on drug-testing matters. Saving the Union's presentation until the end would allow nonunit employees the option of leaving after the Employer completes its presentation on the drug-testing program.
b. The Employer's Position
The Employer contends that the Panel should decline jurisdiction as the Union's proposals are nonnegotiable. In this regard, it alleges that the purpose of the sessions is to train all employees, supervisors, bargaining-unit and nonbargaining-unit employees, about the implementation of the Drug-Free Workplace Program, the effects of illegal drugs, and the relationship of the Customs Employee Assistance Program to the Drug-Free Workplace Program. Inasmuch as the Union's proposal would allow the Union to train employees, it infringes upon management's right to assign work, i.e., the right to determine who will train and educate employees about a work-related matter. The sessions are not intended to be discussions, critiques, or debates of the Program. However, should the Panel retain jurisdiction and resolve the dispute on the merits, the Employer proposes that a Union representative be present during the 2-hour live or video presentation, but may address for 15 minutes, only bargaining-unit employees after nonunit employees have left the room. The Union's remarks would be limited to informing employees of the Union's office hours, address, phone number, and announcing any Union-sponsored events relating to the Drug-Free Workplace Program.
The Employer argues that limiting the amount of time a Union representative may speak is warranted, given the relatively short duration of time to train employees on the Program. Its proposal on the merits would ensure that sessions would not be used by the Union as discussions, debates, or critiques over the merits of the drug-testing program, and that the Union utilizes the forum to provide information rather than to conduct internal Union business. The Panel adopted a similar approach in another case when it limited a union representative to 30 minutes to address an employee orientation session concerning the union's role.(5) Here, since employees are not generally new hires, and are familiar with the Union's role, the Union should not need such a long time. Having the Union representative speak at the end of the training session would allow nonunit members to leave after the Employer's presentation on the program.
2. Safe Harbor
a. The Union's Proposals
The Union proposes the following:
C. At any point prior to being notified of selection for random, reasonable suspicion, or incident drug testing, an employee may opt to admit voluntarily to drug use and enter a drug rehabilitation program. In such a case, the Employer will hold in abeyance implementation of any decision that disciplinary/adverse action be taken against the employee based on their voluntary admission. This provision will not preclude the Employer from implementing disciplinary/adverse actions based on any other unrelated misconduct, or on performance, or for misconduct which may have led to the drug test.
D. If the employee obtains counseling or rehabilitation and thereafter refrains from illegal drug use for 12 months, a disciplinary/adverse action decision based on a first confirmed positive drug test or an employee's voluntary admission, which was held in abeyance during the rehabilitation program, shall he rescinded.
The Union contends that its proposal is drawn directly from E.O. 12564, section 5(b) which gives agencies discretion regarding disciplining employees who voluntarily admit to illegal drug use, obtain counseling or rehabilitation through an Employee Assistance Program (EAP), and thereafter remain drug free. The proposal offers a "safe harbor" only to those who come forward and acknowledge their drug use prior to being notified that they would be tested. The Executive Order stresses rehabilitating drug users and states in its introduction that "the Federal Government ... can and should show the way towards achieving drug-free workplaces through a program designed to offer drug users a helping hand." Furthermore, it directs agencies to set up or improve EAPs for, among other matters, employee rehabilitation. The Employer should not be released from the mandate of section 5(b), as the Executive Order does not authorize exceptions even where an agency has a role in drug enforcement and interdiction. Moreover, section 5© of the E.O. provides that "as part of a rehabilitation or counseling program, the head of the agency may, in his or her discretion, allow an employee to return to duty in a sensitive position if it is determined that this action would not pose a danger to public health or safety or the national security. n The parties have agreed to include a similar provision in their agreement (Article 12G).
The proposals do not preclude the Employer from imposing discipline but represent a less punitive measure, focusing on rehabilitation and extending a "helping hand" for those who have voluntarily acknowledged drug use and have demonstrated that they are seeking help and ultimately overcome the problem. Under these circumstances, the Employer may gain nothing by imposing discipline on a rehabilitated employee who voluntarily admitted drug use.
b. The Employer's Proposals
The Employer proposes the following:
C. The Agency shall provide reasonable assistance to employees enrolled in a rehabilitation program. Such assistance shall include but not be limited to changing an employee's shift and/or assignments in order to meet scheduling needs for the rehabilitation or treatment program and granting and advancing leave in accordance with the terms of this agreement. While the agency will provide reasonable assistance, it is recognized that the ultimate responsibility to be drug free rests with the individual employee.
E. An employee who voluntarily participates in a drug rehabilitation program under Paragraph D above will be subject to unannounced testing for a period of 1 year following completion of the program. The purpose of such testing is to confirm that the employee has refrained from further use of illegal drugs. The testing will be conducted at least once a month in the 12 months following completion of the rehabilitation program.
Due to the unique nature of the mission of the Customs Service as it relates to drug interdiction, the Employer argues that it should not be required to abandon its right to discipline employees for illegal drug use even where they voluntarily admit to using drugs and successfully undergo rehabilitation. To do otherwise would seriously undermine the agency's clearly articulated position against illegal drug use. The Employer needs to retain the authority to take prompt and severe disciplinary actions against employees who use illegal drugs.
The Employer's position is similar to the approach taken by the Drug Enforcement Agency (DEA). A report by the General Accounting Office (GAO) entitled Drug Testing: Action by Certain Agencies When Employees Test Positive for Illegal Drugs (April 1990) indicates it is DEA policy to fire employees found to use drugs, except under unusual circumstances. The GAO report also indicates that other agencies, which do not have a drug enforcement mission, are more likely to take a less severe approach toward disciplining employees who test positive for drug use. Customs employees, like those at DEA, are often called upon to testify against drug violators; they may also carry firearms or have access to trade information or information relating to law enforcement investigations. Credibility problems may arise if an employee with an admitted drug problem were to be called upon to testify for the Government in a criminal case. The efficiency of the Customs Service would deteriorate if the agency could not take disciplinary action against employees who violate the laws which the agency enforces.
We turn first to the question of whether the Panel should retain jurisdiction over the issue of Union participation in meetings with employees concerning the implementation of the Drug-Free Workplace Program. The Employer asserts that the Union's proposals are nonnegotiable because they would infringe upon management's right to assign work and determine the personnel by which agency operations are conducted in derogation of its rights under section 7106(a)(2)(B) of the Statute. Specifically, the Employer maintains that since the proposals would authorize the Union to train employees, it infringes upon its right to assign work, i.e., the right to determine who would train and educate employees about a work-related matter. The Union, on the other hand, contends that the meetings are formal discussions within the meaning of section 7114(a)(2)(A) of the Statute and that it has a right to be represented. We note that the Employer does not dispute the Union's contentions that the meetings with employees to orient them to the Drug-Free Workplace Program are formal discussions. Hence we shall look to the Authority for guidance.
The Authority has stated that an orientation session is a formal discussion within the meaning of section 7114(a)(2)(A) when (1) the matters discussed include "personnel policies, programs and general conditions of employment, such as alcoholism and drug abuse, ... and standards of ;" (2) representatives of the agency make the presentations; (3) an opportunity for questions and answers is provided, and (4) an agenda is set. DHEW at 459-60. he record before us reveals that not only would similar topics be addressed at the meetings, but also representatives of the agency would make the presentations, an opportunity for responding to questions by employees would be provided, and employees would be given copies of the material to be discussed, that is, the Drug-Free Workplace Program, procedures manual, and a summary overview. Thus, in our view, the matter before us presents a substantially similar situation as that in DHEW, where the Authority found a formal discussion to exist.(6) Accordingly, we have determined to retain jurisdiction over the issue, and will now address the merits of the parties' proposals.
Having considered the evidence and arguments regarding the extent to which the Union may participate in employee briefings on the Drug-Free Workplace Program, we have determined that the parties should adopt compromise wording to resolve the dispute. In our view, the subject of the meetings, the implementation of a new program to ensure a drug-free workplace, is of critical importance to employees and their representatives, and, therefore, a Union representative should be afforded more than merely the right to be present at the briefing sessions on this subject. Furthermore, the Union's representative should be acknowledged by the Employer when in attendance at the meetings. As the Authority has stated in U.S. Nuclear Regulatory Commission and National Treasury Employees Union, 21 FLRA 765, 767-68, (1986), the Union's right to be represented at a formal discussion:
means that a union representative has a right to comment, speak, and make statements. Of course, ... this does not entitle a union representative to take charge of, usurp, or disrupt the meeting. Comments by a union representative must be governed by a rule of reasonableness, which requires that there be respect for orderly procedures and that the comments be related to the subject matter addressed by the agency representative(s) at the meeting.
In our view, the above-quoted wording should serve to guide the Union's representatives in making any presentations to employees during briefing sessions. By adhering to these parameters, it is less likely that disruptive or divisive comments would be made which could turn the focus of the meetings away from their intended purpose, that is, to orient employees on the content of the drug-testing program.
With respect to the second issue of whether there should be any restrictions on the Employer's ability to take disciplinary or adverse actions against employees who voluntarily admit to drug use, prior to receiving notice of selection for a drug test, seek rehabilitation, and remain drug free for a period of time thereafter, we have determined that the parties should adopt the Employer's proposal. Our decision to deny employees any so-called "safe-harbor" protections which may be permitted under Executive Order 12564, is based upon the unique nature of the Employer's mission as it relates to drug interdiction, noting particularly that many bargaining-unit employees are on the front lines of the "war on drugs."
We are persuaded by the Employer's statements that, even though an employee who admittedly used drugs may be rehabilitated, the employee's ability to perform successfully the job for which he was hired may be jeopardized due to former drug use. In this regard, we note, particularly, the Employer's statements that some employees have access to information on drug trading and criminal investigations, and sometimes are ca