30:1046(115)NG - FFFE, LOCAL 15 and DEPARTMENT OF THE ARMY, U.S. ARMY ARMAMENT, MUNITIONS AND CHEMICAL COMMAND, ROCK ISLAND, ILLINOIS -- 1988 FLRAdec NG
[ v30 p1046 ]
30:1046(115)NG
The decision of the Authority follows:
0-NG-1269
30 FLRA 1046
Date: 27 JAN 1988
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 15
Union
and
DEPARTMENT OF THE ARMY, U.S. ARMY
ARMAMENT, MUNITIONS AND CHEMICAL
COMMAND, ROCK ISLAND, ILLINOIS
Agency
Case No. O-NG-1269
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(D) and (E) of the Federal
Service Labor - Management Relations Statute (the Statute). It
presents issues relating to the negotiability of proposals
concerning the Agency's testing of certain selected categories of
civilian employees for drug abuse. For the reasons set forth
below, we find that three proposals are within the duty to
bargain and nine proposals are outside the duty to bargain.
Specifically, we find that Proposal 1, which provides for
drug testing of employees only on the basis of probable cause or
reasonable suspicion, is outside the duty to bargain under
section 7106(a)(1) of the Statute because it directly interferes
with management's right to determine its internal security
practices and is not a negotiable appropriate arrangement under
section 7106 (b)(3). Proposal 2, providing that tests and
equipment used for drug testing be the most reliable available,
we find to be nonnegotiable under section 7106 (a)(1) of the
Statute because it directly interferes with management's right to
determine its internal security practices and is not an
appropriate arrangement under section 7106(b)(3). As to Proposal
3, requiring tests to be performed by certified and qualified
personnel, we conclude that it is an appropriate
arrangement for employees adversely affected by the Agency's drug
testing program because it does not excessively interfere with
management's rights under section 7106(a)(2)(B) and section
7106(b)(1). Proposals 4-7, which prescribe a series of tests on
different test samples, are outside the duty to bargain under
section 7117(a)(1) of the Statute because they are inconsistent
with Executive Order 12564. In particular, as discussed more
fully in connection with the disposition of these proposals, we
find that because the Executive Order was issued pursuant to the
President's statutory authority to regulate the civil service, it
has the effect of law within the meaning of section 7117(a)(1).
Proposals 8 and 9, providing for employees to retain a portion of
a test sample and to obtain an independent test, we find to be
negotiable procedures under section 7106(b)(2). Finally,
Proposals 10-12, which concern disclosure of drug testing
information and the assignment of observers to monitor the giving
of a test sample, are held to be nonnegotiable under section
7117(a)(1) because they are inconsistent with Pub. L. No. 100-71
and Executive Order 12564.
II. Background
A. The Army Drug Testing Program
On April 8, 1985, the Department of Defense issued DOD
Directive 1010.9, "DOD Civilian Employees Drug Abuse Testing
Program." On February 10, 1986, the Department of the Army
promulgated regulations implementing the DOD Directive. Interim
Change No. Ill to Army Regulation 600-85, Alcohol and Drug Abuse
Prevention and Control Program ("Interim Change to AR 600-85" or
"amended regulation"). The proposals in dispute in this case
arose in connection with impact and implementation bargaining
over paragraph 5-14 of the Interim Change to AR 600-85.
Paragraph 5-14 states that the Army has established a drug
abuse testing program for civilian employees in critical jobs.
The stated objectives of the program are:
(1) To assist in determining fitness for, appointment to, or
retention in a critical job.
(2) To identify drug abusers and notify them of the
availability of appropriate counseling, referral, rehabilitation
services, or other medical treatment.
(3) To assist in maintaining national security and the
internal security of the Department of the Army by identifying
individuals whose drug abuse could cause disruption in
operations, destruction of property, threats to safety for
themselves or others, or the potential for unwarranted disclosure
of classified information through drug-related blackmail.
Id. at paragraph 5-14a.
Jobs designated by the Army as "critical" for the purpose of
drug abuse testing are those "important enough to the mission or
to protection of public safety that screening to detect the
presence of drugs is warranted as a job-related requirement." Id.
at paragraph 5-14b. These jobs fall into the following
categories: (1) law enforcement; (2) positions involving national
security or the internal security of the Army at a level of
responsibility in which drug abuse could cause disruption of
operations or the disclosure of classified information that could
result in serious impairment of national defense; and (3) jobs
involving the protection of property or persons from harm, or
those where drug abuse could lead to serious threats to the
safety of personnel. Id.
A complete listing of jobs and job classes to be included in
the drug abuse testing program is set forth at Appendix K,
Section I to the Interim Change to AR 600-85. These jobs and job
classes include aviation positions, guard and police positions,
chemical and nuclear surety positions, alcohol and drug abuse
prevention and control program staff, and all employees at Army
forensic drug testing laboratories. Section II of Appendix K
outlines the procedure by which local commanders may request that
additional jobs be identified as critical.
Under the amended regulation, civilian employees in jobs
designated as critical, as well as prospective employees being
considered for critical jobs, will be screened under the civilian
drug testing program. Id. at paragraph 5-14c(l). Current
employees in these critical positions are subject to urinalysis
testing in three situations: (1) on a periodic, random basis; (2)
when there is probable cause to believe that an employee is under
the influence of a controlled substance while on duty; and (3) as
part of an accident or safety investigation. Id. at paragraph
5-14e. Prospective employees for selection to critical positions
will be tested "prior to accession." Id. These requirements are
considered to be a condition of employment. Id.
The amended regulation also sets forth the procedures to be
used for the actual urinalysis test; the action to be taken in
the event of a confirmed positive test result or a refusal by an
employee to submit a specimen; and the requirements of
notice to affected employees. See id. at paragraphs 5-14c through
f. The amended regulation also states (id. at paragraph 5-14g):
Drug testing of civilian employees is not negotiable with
recognized labor organizations because it involves the Army's
internal security practices within the meaning of 5 U.S.C.
7106(a)(1).
The National Federation of Federal Employees, Local 15 (the
Union) represents a bargaining unit of civilian employees at the
U.S. Army Armament, Munitions and Chemical Command, Rock Island,
Illinois (the Agency). The Union submitted collective bargaining
proposals regarding the implementation of the amended regulation
as to unit employees. The Agency alleged that 12 of the proposals
are outside the duty to bargain under the Statute. On May 2,
1986, the Union filed with the Authority a petition for review of
the Agency's allegation of nonnegotiability.
B. Events Subsequent to the Filing of the Instant Petition for
Review
1. Executive Branch and Congressional Actions
By notice published in the Federal Register on August 22,
1986, the Authority invited interested persons to file amicus
briefs in this and other proceedings in which agency management
has asserted the nonnegotiability of union proposals relating to
various aspects of agency initiated testing of civilian employees
to identify drug abuse. See 51 Fed. Reg. 30124 (Aug. 22, 1986).
The notice requested that amicus briefs be submitted by October
22, 1986.
On September 15, 1986, President Reagan issued Executive
Order 12564, entitled "Drug - Free Federal Workplace." See 51
Fed. Reg. 32889 (Sept. 17, 1986). Section 3 of the Executive
Order directs the head of each Executive agency to establish
mandatory and voluntary drug testing programs for agency
employees and applicants in sensitive positions. Section 4(d)
authorizes the Secretary of Health and Human Services (HHS) to
promulgate scientific and technical guidelines for drug testing
programs, and requires agencies to conduct their drug testing
programs in accordance with these guidelines once promulgated.
section 6(a)(1) states that the Director of the Office of
Personnel Management (OPM) shall issue "government-wide guidance
to agencies on the implementation of the terms of (the) Order(.)"
Section 6(b) provides that "(t)he Attorney General shall render
legal advice regarding the implementation of this order
and shall be consulted with regard to all guidelines,
regulations, and policies proposed to be adopted pursuant to this
Order."
On November 28, 1986, OPM issued Federal Personnel Manual
(FPM) Letter 792-16, "Establishing a Drug - Free Federal
Workplace." Section 2 (c) of the letter states: "Agencies shall
ensure that drug testing programs in existence as of September
15, 1986, are brought into conformance with E.O. 12564." Sections
3, 4, and 5 of the FPM Letter are entitled, respectively, "Agency
Drug Testing Programs," "Drug Testing Procedures," and "Agency
Action Upon Finding That An Employee Uses Illegal Drugs."
Because of the significant implications of the Executive
Order and the implementation of its provisions for the resolution
of the matters pending before the Authority in this and other
cases, the Authority extended the time for filing amicus briefs
until January 20, 1987. See 51 Fed. Reg. 37071 (Oct. 17, 1986).
Briefs were submitted by the Office of Personnel Management, the
Department of Justice, other Federal agencies, several labor
organizations representing Federal employees, and other
interested parties.
On February 13, 1987, HHS issued 'Scientific and Technical
Guidelines for Drug Testing Programs' (Guidelines) as directed in
the Executive Order. Thereafter, the Supplemental Appropriations
Act for 1987, Pub. L. No. 100-71, 101 Stat. 391, 468 (July 11,
1987) was enacted. Section 503 of that Act required notice of the
Guidelines to be published in the Federal Register. Notice of the
Guidelines was published on August 14, 1987, and interested
persons were invited to submit comments. 1 See 52 Fed. Reg. 30638
(Aug. 14, 1987). As of the date of this decision, final
regulations have not been published in the Federal Register.
On August 6, 1987, the Authority issued an order in this and
other cases raising drug testing issues. In light of the issuance
of the Executive Order, the FPM Letter, the Guidelines, and
section 503 of the Supplemental Appropriations Act, as well as
several court decisions addressing issues relating to drug
testing, the Authority directed the parties to supplement their
positions concerning these developments. The Agency and
the Union filed supplemental statements in this case.
Additionally, on December 22, 1987, we granted the Department of
Justice's request to file an additional amicus brief to address
issues raised by the Guidelines and the other developments in
this area.
2. Federal Court Litigation Involving the Department of the
Army and Other Drug Testing Programs
On March 13, 1986, the National Federation of Federal
Employees (NFFE) and other plaintiffs filed suit in the United
States District Court for the District of Columbia challenging
the Army's drug testing program with respect to employees NFFE
represents at Aberdeen Proving Ground, Maryland. The District
Court dismissed the suit for lack of jurisdiction, and stated
that &the plaintiffs must pursue their constitutional and
statutory challenges to the drug abuse testing program within the
administrative framework of the (Civil Service Reform Act) and
not in this forum., National Federation of Federal Employees v.
Weinberger, 640 F. Supp. 642, 650 (D.D.C. 1986).
That decision was reversed and the case was remanded by the
U.S. Court of Appeals for the District of Columbia Circuit on May
15, 1987. National Federation of Federal Employees v. Weinberger,
818 F.2d 935 (D.C. Cir. 1987). The court held that the District
Court had jurisdiction over the case. In so ruling, the court
stated that a proceeding before the Authority focused on duty to
bargain questions will not resolve issues concerning the legality
of the drug testing program. Id. at 940. The court also stated:
If the union files a complaint with the FLRA, it can only
seek a determination that the drug testing program is subject to
collective bargaining. Accordingly, the FLRA will rule on the
negotiability of the program, not its legality. And, in defending
against a union request for bargaining rights, the government
surely will not argue that its drug testing program is illegal.
So, no matter how the FLRA rules on the negotiability issue, an
appeal will not involve the legality of the drug testing
program.
Id. at n.7. The court remanded the case to the District
Court for further proceedings on the merits. See also American
Federation of Government Employees v. Weinberger, 651 F. Supp.
726 (S.D. Ga. 1986) and order of June 1, 1987,
transferring a case raising similar issues to the District Court
for the District of Columbia.
For purposes of this decision, we will assume the validity
of the Executive Order and any applicable Government-wide
regulations in order to resolve the duty to bargain questions
raised in connection with the disputed collective bargaining
proposals in this case. See American Federation of Government
Employees, National Council of Grain Inspection Locals v. FLRA,
794 F.2d 1013 (5th Cir. 1986). We recognize, however, that the
legality of Federal agency drug testing programs has been and
continues to be the subject of other court litigation. See, for
example, National Treasury Employees Union v. Von Rabb, 816 F.2d
170 (5th Cir. 1987).
III. Proposal I
Section II - Frequency of Testing
The parties agree that employees in sensitive positions
defined by AR 600-85 may be directed to submit to urinalysis
testing to detect presence of drugs only when there is probable
cause to suspect the employees have engaged in illegal drug
abuse.
A. Positions of the Parties
The Agency contends that this proposal conflicts with its
right to determine its internal security practices under section
7106(a)(1) of the Statute. According to the Agency, it has
determined that as part of its program to test employees in
certain critical positions, these tests must be conducted
periodically without prior announcement to employees. The Agency
contends that the proposal would expressly limit the Agency's
right to randomly test employees and would impermissibly place a
condition of 'probable cause, on the Agency before the right
could be exercised.
The Agency further contends that the proposal conflicts with
an agency regulation for which a compelling need exists: namely,
Paragraph 5-14e(1)(b) of the Interim Change to AR 600-85, which
establishes testing "(p)eriodically after appointment or
selection on a random basis." The Agency argues that there is a
compelling need for the amended regulation under section
2424.11(a) of the Authority's Rules because the regulation is
essential to the functioning of the Army in an effective and
efficient manner. The Agency states that it can perform its
national defense mission only if it retains the right to assure
itself that civilian employees in critical positions are
drug-free. Finally, the Agency asserts that the proposal is
neither a negotiable procedure nor an appropriate arrangement
under the Statute. 2
The Union contends that the proposal involves conditions of
employment and that the Agency has failed to provide any evidence
linking testing for off-duty drug use to internal security. The
Union also argues that the Agency has not adequately shown that
it has a compelling need for the amended regulation. Finally, the
Union asserts that even if the proposal infringes on an internal
security practice, it is negotiable as an appropriate
arrangement. The Union contends that this proposal is intended to
address the harms that employees will suffer, such as invasion of
privacy and the introduction of an element of fear into the
workplace, by eliminating the random nature of the testing and
substituting a test based on probable cause.
In its supplemental submission, the Union contends that
proposals stating that there should be testing of civilian
employees for drug use only when there is probable cause do not
conflict with Executive Order 12564. The Union also argues that
its proposals are consistent with section 3(a) of the
Executive Order, which provides that the extent to which
employees are tested should be determined based on "the efficient
use of agency resources," among other considerations. Union's
Supplemental Submission of September 18, 1987, at 2.
B. Discussion
1. Whether Proposal 1 is Inconsistent with Law and
Government-wide Regulation under section 7117(a)
Proposal 1 provides that employees in sensitive positions as
defined in the Interim Change to AR 600-85 will be tested for
drug use only on the basis of reasonable suspicion or probable
cause. The effect of this proposal is to preclude testing of
employees on a random basis as provided in the Interim Change to
AR 600-85, Paragraph 5-14e(1)(b). The issue, therefore, is
whether the proposal, by precluding random testing, is
nonnegotiable under the Statute.
The initial question is whether this proposal is
inconsistent with law and/or Government-wide regulation,
specifically Executive Order 12564 or FPM Letter 792-16, and
therefore nonnegotiable under section 7117(a)(1) of the Statute.
For the reasons discussed below, we conclude that the proposal is
not inconsistent with the Executive Order or with the FPM
Letter.
Section 3 of Executive Order 12564 provides that all
Executive agencies must establish programs designed to test
employees for illegal drug use. It does not mention random
testing; it neither requires agencies to test employees on a
random basis nor does it prohibit them from doing so. The
decision as to whether to test randomly is left to the head of
each agency. Assuming that a proposal was otherwise negotiable,
an agency could agree through collective bargaining to a proposal
providing that it would test only for probable cause or
reasonable suspicion--and not on a random basis--and it would not
thereby act in a manner which is inconsistent with the Executive
Order. See American Federation of Government Employees, AFL -
CIO, Local 32 and Office of Personnel Management, Washington,
D.C., 3 FLRA 784, 787 (1980) (Proposals 2 and 3) . The decision
to test on a random basis is a matter which is wholly within the
Agency's discretion under the Executive Order. See National
Treasury Employees Union, Chapter 6 and Internal Revenue Service,
New Orleans District, 3 FLRA 748 (1980). See also Library of
Congress v. FLRA, 699 F.2d 1280, 1289 (D.C. Cir 1983). There is
no indication in the Executive Order itself that the
Agency's discretion is intended to be sole and exclusive. See New
Orleans District at 760.
Section 3(a) of the FPM Letter explicitly refers to random
testing as an option for agencies to use in their drug testing
programs. However, as with the Executive Order, it does not
require agencies to randomly test employees. In particular,
section 3(a)(2) provides agencies with discretion as to whether
or not to randomly test employees in sensitive positions. An
agency may determine that no sensitive positions warrant
identification as "testing designated positions" under the
criteria set forth in section 3(a)(2)(b) of the FPM Letter and it
still will be in compliance with the Letter. The decision to test
on a random basis is entirely within the Agency's discretion
under section 3(a) of the FPM Letter. As with the Executive Order
above, therefore, the Agency could agree to test only for
probable cause and it would not act in a manner which would be
inconsistent with the Letter.
We conclude, therefore, that Proposal I is not inconsistent
with the Executive Order and the FPM Letter and not barred from
negotiation under section 7117 (a)(1) of the Statute.
2. Whether Proposal 1 Directly Interferes with Management's
Right to Determine its Internal Security Practices under section
7106(a)(1)
In our view, the proposal directly interferes with
management's right to determine its internal security practices
under section 7106(a)(1) of the Statute. By restricting the
circumstances in which employees will be subject to the drug
testing program, the proposal has the same effect as Proposal 2
in National Association of Government Employees, SEIU, AFL - CIO
and Department of the Air Force, Scott Air Force Base, Illinois,
16 FLRA 361 (1984). The proposal in that case prohibited
management from inspecting articles in the possession of
employees unless there were reasonable grounds to suspect that
the employee had stolen something and was intending to leave the
premises with it. The Authority concluded that by restricting
management's ability to conduct unannounced searches of employees
and articles in their possession, the proposal directly
interfered with management's plan to safeguard its property.
Similarly, by limiting management's ability to conduct
random testing for employee use of illegal drugs, Proposal 1
directly interferes with management's internal security
practices. As the Agency indicated in issuing the Interim Change
to AR 600-85, one purpose for instituting the drug testing
program is to identify "individuals whose drug abuse could cause
disruption in operations, destruction of property, threats to
safety for themselves and others, or the potential for
unwarranted disclosure of classified information through
drug-related blackmail." Interim Change to AR 600-85, Paragraph
5-14a(3). Clearly, the drug testing program set forth in the
Agency regulation, including the provision for unannounced random
tests, Interim Change to AR 600-85, Paragraph 5-14e(1)(b),
concerns the policies and actions which are a part of the
Agency's plan to secure or safeguard its physical property
against internal and external risks, to prevent improper or
unauthorized disclosure of information, or to prevent the
disruption of the Agency's activities.
The Agency has decided, in the Interim Change to AR 600-85,
Paragraph 5-14e (1)(b), to use random testing as a part of its
plan to achieve those purposes because such testing by its very
nature contributes to that objective. Unannounced random testing
has a deterrent effect on drug users and makes it difficult for
drug users to take action to cover up their use or otherwise
evade the tests. See, for example, Agency's Supplemental
Statement of Position of June 30, 1986 at 2. As such, the use of
random testing constitutes an exercise of management's right to
determine its internal security practices. See also National
Federation of Federal Employees, Local 29 and Department of the
Army, Kansas City District, U.S. Army Corps of Engineers, Kansas
City, Missouri, 21 FLRA 233, 234 (1986), vacated and remanded as
to other matters sub nom. NFFE, Local 29 v. FLRA, No. 86-1308
(D.C. Cir. Order Mar. 6, 1987), Decision on Remand, 27 FLRA 404
(1987).
We will not review the Agency'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. As
indicated above, the purpose of the Interim Change to AR 600-85
is to prevent the increased risk to security which the Agency has
identified as resulting from drug use by employees in those
sensitive positions. That is a judgment which is committed to
management under section 7106(a)(1) of the Statute. Where a link
has been established between an agency's action--in this case
random drug testing--and its expressed security concerns, we will
not review the merits of that action. We find that such a linkage
is present in this case. See also the Preamble to Executive Order
12564 and section 1 of FPM Letter 792-16.
This case is not like Department of Defense v. FLRA, 685
F.2d 641 (D.C. Cir. 1982). In that case, the court concluded that
there was no "connection" between the proposal at issue and the
agency's determination of the internal security practices.
Rather, this case is similar to Defense Logistics Council v.
FLRA, 810 F.2d 234 (D.C. Cir. 1987). In that case, the Authority
found that proposals pertaining to the agency's program to
prevent drunk driving were nonnegotiable because they directly
interfered with management's right to determine its internal
security practices under section 7106(a)(1). In upholding that
decision, the U.S. Court of Appeals for the District of Columbia
Circuit rejected the claim that the drunk driving program did not
involve internal security practices. The court concluded that the
Authority's interpretation of the term "internal security
practices" to include preventive measures designed to guard
against harm to property and personnel caused by drunk drivers
was a reasonable disposition of that issue. In reaching that
conclusion, the court specifically distinguished the Department
of Defense decision. We see no material difference between the
Agency's drug testing program and the drunk driving program.
3. Whether Proposal 1 is an Appropriate Arrangement under
section 7106 (b)(3)
Finally, we consider whether Proposal 1 is an "appropriate
arrangement" for employees adversely affected by the exercise of
a management right within the meaning of section 7106(b)(3). To
determine whether the proposal constitutes an appropriate
arrangement, we must determine whether the proposal is (1)
intended to be an arrangement for employees adversely affected by
the exercise of a management right, and (2) appropriate because
it does not excessively interfere with the exercise of
management's right. National Association of Government Employees,
Local R14-87 and Kansas Army National Guard, 21 FLRA 24
(1986).
Even assuming that Proposal 1 is intended to be an
"arrangement" for the amelioration of the adverse consequences to
employees of the imposition of random drug testing, we find that
it is not an "appropriate" arrangement within the meaning of
section 7106(b)(3). The Union seeks to protect employees from the
effects of the Agency's decision to use random testing by
precluding that type of testing altogether. By limiting
management to testing only on the basis of probable cause,
Proposal I completely negates the Agency's decision to use random
testing for purposes of protecting the security of its property,
personnel, and operations. The proposal would reverse
the substantive impact of that decision.
The effect of the proposal, therefore, is the same as
Proposal 3 in National Association of Government Employees, Local
R7-23 and Department of the Air Force, Scott Air Force Base,
Illinois, 23 FLRA 753, 758-60 (1986). In that case, the
Authority held that a proposal which would replace the standard
of simple negligence instituted by management for determining
pecuniary liability with the previous standard of gross
negligence excessively interfered with management's right to
determine its internal security practices because it completely
reversed the substantive effect of management's action. For the
same reasons, we find that Proposal I in this case excessively
interferes with management's right to determine its internal
security practices and thus is not an appropriate arrangement
under section 7106(b)(3). Proposal 1, therefore, is outside the
duty to bargain under the Statute. In light of our conclusion, we
do not address the parties' other contentions.
IV. Proposal 2
Section III.A - Testing Methods and Procedures
A. The parties agree that methods and equipment used to test
employee urine samples for drugs be the most reliable that can be
obtained.
A. Positions of the Parties
The Agency asserts that the proposal concerns the methods,
means, or technology of performing its work, within the
definition of section 7106 (b) (1) of the Statute, of assuring,
through random drug testing, the fitness of certain employees in
critical positions. The Agency contends that by restricting and
qualifying the methods and equipment used by the Agency in
performing its work, the proposal interferes with the Agency's
right under section 7106(b)(1). The Agency also contends that the
proposal is not negotiable because it concerns techniques used by
the Agency in conducting an investigation relating to internal
security and therefore falls within management's right to
determine internal security practices under section 7106 (a)(1).
Finally, the Agency contends that the proposal is not a
negotiable appropriate arrangement.
The Union contends that the proposal concerns the methods
and equipment used to test employee urine samples, and does not
concern the technology, methods, and means of
performing work within section 7106(b)(1) because drug testing is
not the work of the Agency. The Union also argues that the
proposal does not concern the Agency's internal security
practices since urinalysis testing bears no relationship to
employee performance or conduct at the workplace. Finally, the
Union argues that the proposal is an appropriate arrangement
because the proposal assures that the most accurate testing
methods and equipment will be used.
B. Discussion
1. Whether Proposal 2 Directly Interferes with Management's
Right to Determine its Internal Security Practices under section
7106(a)(1)
An integral part of management's decision to adopt a
particular plan for protecting its internal security is its
determination of the manner in which it will implement and
enforce that plan. For example, where management establishes
limitations on access to various parts of its operations, it may
use particular methods and equipment to determine who may and who
may not be given access, such as coded cards and card reading
equipment. Polygraph tests may be used as part of management's
plan to investigate and deter threats to its property and
operations. See American Federation of Government Employees,
Local 32 and Office of Personnel Management, 16 FLRA 40 (1984);
American Federation of Government Employees, AFL - CIO, Local
1858 and Department of the Army, U.S. Army Missile Command,
Redstone Arsenal, Alabama, 10 FLRA 440, 444-45 (1982).
Similarly, an integral aspect of establishing its drug testing
program is management's decision as to the methods and equipment
it will use to determine whether employees have used illegal
drugs. Put differently, it is not possible to have a program of
testing for illegal drug use by employees without determining how
the proposed tests are to be conducted. 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.
Proposal 2 requires management to use the most reliable
testing methods and equipment in the implementation of its drug
testing program. The proposal establishes a criterion governing
management's selection of the methods and the equipment to be
used in any and all aspects of the testing program. It is broadly
worded and does not distinguish between the particular parts or
stages of the program or the purposes for which the tests and
equipment would be used. The effect of the proposal is to confine
management's selection of methods and equipment for use at any
stage of the testing procedure only to those which are
the most reliable. In short, management would be precluded from
selecting equipment or methods which are reliable for a
particular purpose if there were equipment and methods which were
more reliable for that purpose.
By limiting the range of management's choices as to the
methods and equipment it may use to conduct drug
tests--regardless of the particular phase of the testing process
or the purpose of the test--Proposal 2 establishes a substantive
criterion governing the exercise of management's determination of
its internal security practices. Generally speaking, the most
accurate and reliable test at this time for confirming the
presence of cocaine, marijuana, opiates, amphetamines, and
phencyclidine (PCP) is the gas chromatography/mass spectrometry
(GC/MS) test. See the proposed Guidelines, 52 Fed. Reg. 30640. As
indicated above, the plain wording of Proposal 2 would therefore
appear to require the use of that test at all stages of the drug
testing program. See Union Response to Agency Statement of
Position at 9. It would preclude the use, for example, of the
less reliable immunoassay test at any stage or for any purpose,
including as an initial screening test. We find, therefore, that
the proposal directly interferes with management's rights under
section 7106(a)(1) of the Statute and is outside the duty to
bargain unless, as claimed by the union, it is an appropriate
arrangement under section 7106(b) (3).
2. Whether Proposal 2 is an Appropriate Arrangement under
section 7106(b)(3)
Even assuming that Proposal 2 is an "arrangement' for
employees adversely affected by the establishment of a drug
testing program, we find that it is not an "appropriate,
arrangement. As we noted above, the proposal is broadly worded
and, in practical effect, would require all test samples to be
tested by a method at least as reliable as the gas
chromotography/mass spectrometry test, which is the most reliable
test available with current technology. While use of that method,
or any method which has the same or greater degree of
reliability, minimizes the possibility of a false positive test
result, prescribing the use of only that method prevents
management from selecting a mix of different tests which would
achieve that same purpose. For example, the proposal would
preclude the use of initial screening tests to eliminate all test
samples which are "true negatives," thus narrowing the number of
samples which require the use of additional confirmatory tests.
In our view, by failing to distinguish between possible test
uses and stages of testing and thus restricting management's
ability to select a mix of tests which will achieve the objective
of minimizing the risks of unreliable results, Proposal 2
excessively interferes with management's right to determine its
internal security practices under section 7106(a)(1). Though the
benefits to employees of using the most reliable tests available
are clear, those benefits do not outweigh the burden placed upon
management's choice of testing methods, namely, precluding
management from using a mix of other tests and equipment which
would achieve the same results. The restriction placed upon
management's decision goes farther than is necessary to achieve
the result desired. This is especially true where, as we note,
the most reliable tests require the most costly and sophisticated
equipment. Because Proposal 2 would excessively interfere with
management's right, as a part of determining its internal
security plan, to select the methods and equipment to be used for
drug testing, it is not an appropriate arrangement within the
meaning of section 7106(b)(3) and is outside the duty to bargain.
In reaching this conclusion, we find it unnecessary to pass on
the other grounds for nonnegotiability alleged by the Agency.
In addition, we note that the proposed *Scientific and
Technical Guidelines for Federal Drug Testing Programs' prescribe
in specific detail the methods and equipment to be used at
various stages in the testing program. If the portions of the
proposed Guidelines which prescribe the tests and equipment to be
used for particular purposes remain unchanged in the final
Guidelines, Proposal 2 would also conflict with those provisions
to the extent that it would mandate the use of tests or equipment
different from that required by the Guidelines. If the final,
published Guidelines are Government-wide regulations within the
meaning of section 7117(a)(1) of the Statute, the conflicting
portions of Proposal 2 therefore would be outside the duty to
bargain.
V. Proposal 3
Section III.B - Testing Methods and Procedures B. The
employer agrees that the following procedure will be utilized to
assure drug testing is reliable:
1. Upon direction of management under terms of Section 2
above, affected employees will report to designated location to
provide urine sample.
2. The Employer agrees to provide safeguards to assure the
urinalysis testing for affected employees is not performed by
unqualified or uncertified operators or test personnel.
A. Positions of the Parties
The Agency asserts that by limiting the assignment of work
to specified employees, Proposal 3 conflicts with the Agency's
right to assign work under section 7106(a)(2)(B) of the Statute.
Also, certain amici argue that the proposal conflicts with
management's right to contract out work under this section. The
Agency further contends that Proposal 3 conflicts with the
Agency's right to determine the types of employees in an
organizational subdivision, work project, or tour of duty under
section 7106(b)(1) of the Statute. Finally, the Agency contends
generally that the proposals in this case are barred from
negotiation because they conflict with an Agency regulation for
which a compelling need exists under section 7117(a)(2) of the
Statute and section 2424.11 of the Authority's Rules and
Regulations.
The Union contends that Proposal 3 does not affect
management's right to assign work and does not conflict with the
Agency's right to determine the types of employees in an
organizational subdivision, work project, or tour of duty under
section 7106(b)(1). The Union states that Proposal 3 contains no
requirement as to who will perform the drug testing, and thus the
testing can be performed by either unit or nonunit employees. The
Union contends that even if the proposal concerns a management
right, it is negotiable as an appropriate arrangement for
adversely affected employees because it seeks to minimize
possible mistakes and the consequences that flow from mistakes
made in connection with testing.
B. Discussion
1. Whether Proposal 3 Directly Interferes with Management's
Rights under section 7106(a) of the Statute
Proposal 3 directly interferes with management's right to
assign work under section 7106(a)(2)(B) of the Statute. The
proposal would limit management's assignment of work involving
urinalysis testing only to qualified or certified operators or
test personnel. The Authority has held that proposals
which require management to restrict work assignments to
"qualified" personnel conflict with management's right to assign
work under section 7106(a)(2)(B) of the Statute. See, for
example, International Brotherhood of Electrical Workers, Local
570, AFL-CIO-CLC and Department of the Army, Yuma Proving Ground,
Arizona, 14 FLRA 432, 433-34 (1984) and Laborers International
Union, Local 1276, AFL - CIO and Defense Logistics Agency,
Defense Depot Tracy, Tracy, California, 15 FLRA 49, 50 (1984).
The proposal here similarly would require management to assign
drug testing duties to qualified or certified personnel. Hence,
it directly interferes with management's right to assign work
under section 7106(a)(2)(B).
The proposal would also interfere with management's right to
contract out drug testing work under section 7106(a)(2)(B). More
particularly, should management decide to utilize drug testing
personnel outside the Agency, the proposal would require
management to contract out this work only to certified or
qualified test personnel. This requirement imposes a substantive
limitation on management's right to contract out its drug testing
work and thus directly interferes with its right to contract out
work under section 7106(a)(2)(B).
We further find that the proposal conflicts with the
Agency's right to determine the type of employees who could be
used to conduct urinalysis testing under section 7106(b)(1) of
the Statute. Because Proposal 2 would limit urinalysis testing
only to qualified or certified operators or test personnel, it is
to the same effect as the proposals which were before the
Authority in National Federation of Federal Employees, Local 1332
and U.S. Army Materiel Development and Readiness Command
(DARCOM), 3 FLRA 200 (1980). Those proposals sought to prescribe
the training, experience, and qualifications to be possessed by
alcohol and drug abuse counselors. The proposals in that case
were found to be determinative of the "types" of employees who
could fill counselor positions and therefore were held to be
negotiable only at the agency's election pursuant to section
7106(b)(1) of the Statute. In a similar manner, Proposal 3 seeks
to bargain over the types of employees who may conduct urinalysis
testing by requiring that only qualified or certified personnel
be permitted to perform this testing. Consequently, it conflicts
with management's right to determine the types of employees under
section 7106(b)(1) of the Statute. See also Defense Logistics
Agency, Defense Depot Tracy, Tracy, California, 15 FLRA 49, 51.
2. Whether Proposal 3 is an Appropriate Arrangement under
section 7106 (b)(3) of the Statute
Having determined that the proposal would interfere with
management's rights, we must now decide whether the proposal is
an appropriate arrangement within the meaning of section
7106(b)(3) of the Statute. See Kansas Army National Guard, 21
FLRA 24 (1986). For the reasons discussed below, we find that
the proposal constitutes an appropriate arrangement under the
Statute.
We find that the proposal is clearly intended to be an
"arrangement" for employees adversely affected by the exercise of
management's right to determine its internal security practices,
that is, its right to administer a drug testing program. As
reflected in Executive Order 12564, an employee subject to drug
testing whose urine specimen tests positive will be subject to
certain personnel actions, including reassignment, counseling or
rehabilitation, or disciplinary action depending on the
employee's particular situation. Personnel actions based on drug
testing results would also affect an employee's reputation and
future employment. The proposal attempts to mitigate against
these foreseeable adverse consequences of management's
establishment of its drug testing program by limiting
management's right to assign drug testing work, as well as its
right to determine the types of employees who will perform that
work, in order to ensure the accuracy of test results. Similarly,
the proposal attempts to limit management's right to contract out
in order to achieve the same objective.
The imposition of drug testing is not within an employee's
control. While an employee certainly has control over his/her use
of illegal drugs, an employee has no control over the testing
methods utilized by drug testing personnel to safeguard the urine
samples or to ensure the accuracy of test results; nor does the
employee control the competence of testing personnel. As to
whether the burden placed on management's exercise of its rights,
as mentioned above, by requiring that drug testing personnel be
qualified or certified is excessive compared to the benefits to
be derived by employees from having certified personnel conduct
the test, we conclude that the benefits of the proposal to
employees and to management outweigh its effects on management's
rights to assign work, determine the types of employees, or
contract out.
The Union states that its proposal is intended to ensure
that the testing of unit employees be conducted by personnel
specifically trained and certified in the operation of testing
equipment in order to "minimize possible mistakes in connection
with the exercise of a management right." Union Reply to Agency
Statement of Position at 12. The Agency admits that it is "(its)
intent" to assign drug testing work only to qualified and
certified personnel. Agency Statement of Position at 8. Given the
Agency's stated objective and noting the Union's limited intent,
it is our view that the proposal would have a minimal impact on
the Agency's exercise of its statutory rights. Moreover, we note
that the proposed Guidelines require that urine specimens be
tested only by certified laboratories and that laboratory testing
personnel meet certain qualifications. See 52 Fed. Reg.
30641-42.
We further find that the proposal would contribute to,
rather than detract from, the achievement of a more effective and
efficient workforce. First of all, the assignment of drug testing
to qualified and certified personnel would assure accuracy of
test results and thereby reduce the need for retesting.
Additionally, the knowledge that qualified personnel would be
responsible for conducting drug tests would aid in reducing
employees' fears of inaccurate testing, and thereby contribute to
employee morale which could lead to improved labor-management
relations as well as fewer adverse action appeals.
Taking all of the above into account, we find that the
burden imposed by the proposals on management's rights is minimal
compared to the benefit to employees--and, derivatively, to
management--afforded by the proposal. We conclude, therefore,
that on balance the record does not establish that the proposal
would excessively interfere with the Agency's rights. It
therefore is negotiable as an appropriate arrangement under
section 7106 (b)(3) of the Statute.
3. Whether Proposal 3 is Nonnegotiable because it Conflicts
with an Agency Regulation for which a Compelling Need Exists
Finally, the Agency claims that the proposal conflicts with
the Interim Change to AR 600-85, an Agency regulation for which
there is a compelling need under section 7117(a)(2) of the
Statute and section 2424.11 of the Authority's Regulations. See
Agency Statement of Position at 16. In American Federation of
Government Employees, AFL - CIO, Local 3804 and Federal Deposit
Insurance Corporation, Madison Region, 21 FLRA 870,
880 (1986), the Authority stated that in order to show a
compelling need for an agency regulation, an agency must: (1)
identify a specific agency-wide regulation; (2) show that there
is a conflict between its regulation and the proposal; and (3)
demonstrate that its regulation is supported by a compelling need
with reference to the standards in section 2424.11 of our
Regulations. Here, the Agency has not specifically alleged that
Proposal 3 conflicts with any particular part of its regulation.
While the Agency in discussing its drug testing program generally
contends that there is a compelling need for its regulation, no
claim is made by the Agency that Proposal 3 conflicts with any
portion of the regulation so as to be barred from negotiation.
See Agency Statement of Position at 15-16. We, therefore, find
that the Agency regulation cannot serve to bar negotiations on
this proposal.
VI. Proposals 4 - 9
Section III.B - Testing Methods and Procedures
B. The employer agrees that the following procedure will be
utilized to assure drug testing is reliable:
1. Upon direction of management under terms of Section 2
above, affected employees will report to designated location to
provide urine sample.
Proposal 4
3. Upon "positive" reading of urine sample indicating
presence of illegal/controlled substance, a 2nd testing will be
accomplished upon same sample.
Proposal 5
4. If the 2nd test confirms results of the 1st test,
employee will be notified to return to the designated site the
next work day to provide a second urine sample.
Proposal 6
5. Second urine sample will be subject to same test as first
sample, which will be testing for identical substance as first 2
tests. "Positive" results will again be verified by a second
test.
Proposal 7
6. Upon confirmation of presence of illegal/control
substance in urine sample, the sample will be submitted to army
testing labs at site determined by employer for refined testing
to confirm results of field tests at employer location.
Proposal 8
7. If employee urine sample leaves work site (RIA), the
employee shall have the option of retaining a portion of the
sample for freezing and later use in case of inadvertent break in
chain of custody or loss of identification of samples.
8. All samples will be subject to strict chain of custody as
outlined in appendix H to AR 600-85.
Proposal 9
9. At each and every step of testing employees have the
option to have a urinalysis test by an independent lab at his/her
cost utilizing the existing sample or a new sample. If
independent testing refutes employer results, employee will be
reimbursed for any cost associated with testing process.
A. Positions of the Parties
The Agency argues that Proposals 4 through 9 concern the
specific techniques that the Agency will use in conducting its
drug testing and therefore conflict with the Agency's right under
section 7106(b)(1) to determine the means of performing its work.
The Agency also asserts that these proposals infringe on
management's authority to determine its internal security
practices under section 7106(a)(1), because the proposals
specifically prescribe the investigative technique to be used in
drug testing and, thus, prevent the Agency from using other plans
or techniques. Additionally, certain amici contend that proposals
5, 6, 7, and 9 conflict with the proposed Guidelines, a
Government-wide regulation.
Finally, the Agency contends that the proposal does not
constitute an appropriate arrangement under section 7106(b)(3).
The Union states that Proposals 4 through 9 specify
particular procedures which are intended to safeguard employee
rights and which must be used in testing individual urine
samples. According to the Union, these proposals do not infringe
on the Agency's right to determine the means of performing the
Agency's work or upon the Agency's right to determine its
internal security. The Union states that, contrary to the
Agency's assertion, the Agency would not be prevented from using
another technique, although introduction of that technique would
be subject to bargaining. Finally, the Union asserts that
balancing the Agency's needs against the benefits of improving
employee morale and preventing erroneous initial findings
demonstrates that the proposals constitute appropriate
arrangements under section 7106(b)(3).
B. Discussion
Background
As relevant to Proposals 4-7, the Interim Change to AR
600-85 allows the local installations to conduct field tests of
current employees. Interim Change to AR 600-85, Paragraph
5-14f(5). Under this procedure, an employee's urine sample may be
preliminarily tested at the field level. Positive results from
this testing are considered preliminary and must be confirmed as
positive by both initial and confirmatory testing by a certified
laboratory or by an admission by the employee. Interim Change to
AR 600-85, Paragraph 5-14f (5) (a) and (c). Positive results of
field tests may only be used for temporary referral to a civilian
employee assistance program, temporary detail to other
non-critical duties or administrative leave, or temporary
suspension of access to classified information. Interim Change to
AR 600-85, Paragraph 5-14f (5) (b).
Proposals 8 and 9 set forth specific procedures to deal with
the Agency's implementation of its drug testing program
generally. Proposals 4-7 specifically relate to field testing
procedures under the Agency's regulation. The proposed Guidelines
prescribe the procedures agencies must follow in conducting drug
testing.
We take no position on whether field testing is permissible
under the proposed Guidelines and will address the negotiability
of these proposals assuming that field testing is permissible.
See AFGE v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986),
enforcing American Federation of Government Employees, AFL - CIO,
National council of Grain Inspection Locals and U.S. Department
of Agriculture, Federal Grain Inspection Service, 18 FLRA 530
(1985) (FLRA does not have authority to review the validity of
Government-wide regulations). However, if the field testing
provisions of the Agency's regulation conflict with the final
Guidelines, Proposals 4-7 would be moot, since the circumstances
which they address would no longer be legally possible.
In our view, Proposals 4-7 must be read together because
they all are directed at field testing. The proposals set forth a
five step procedure that must be used by management in urinalysis
testing when a positive result has been received from a field
test of an employee's first urine sample. In cases of positive
readings, the proposals would require two tests on the initial
urine sample, two tests on a second urine sample, and then a
confirmation test on the second urine sample at any Army testing
laboratory determined by management. Should the employee's urine
sample be sent outside the worksite for testing, Proposal 8 would
permit the employee the option of retaining a portion of the
sample for freezing and later use in case of an inadvertent break
in the chain of custody or loss of identification of samples.
Finally, Proposal 9 would allow the employee the option of having
an independent laboratory test any sample derived from the field
testing program, and would require management to reimburse the
employee the cost of this testing if the independent laboratory
test refuted management's results.
Proposals 4-7
For the reasons discussed below, we find that Proposals 4
through 7 conflict with Executive Order 12564 and therefore are
not within the duty to bargain under section 7117(a)(1).
Executive Order 12564 provides, in pertinent part, as
follows:
Sec. 5. Personnel Actions.
(a) Agencies shall, in addition to any appropriate personnel
actions, refer any employee who is found to use illegal drugs to
an Employee Assistance Program for assessment, counseling, and
referral for treatment or rehabilitation as appropriate.
(b) Agencies shall initiate action to discipline any
employee who is found to use illegal drugs....
(c) Agencies shall not allow any employee to remain on duty
in a sensitive position who in found to use illegal drugs, prior
to successful completion of rehabilitation through an Employee
Assistance Program.
(e) The results of a drug test and information developed by
the agency in the course of the drug testing of the employee may
be considered in processing any adverse action against the
employee or for other administrative purposes. Preliminary test
results may not be used in an administrative proceeding unless
they are confirmed by a second analysis of the same sample or
unless the employee confirms the accuracy of the initial test by
admitting the use of illegal drugs.
In our view, Section 5(a),(b),(c), and (e), read together,
require an agency to take the appropriate personnel
action--either an administrative or disciplinary action--in
connection with an employee who is found to use illegal drugs.
That is, under the Executive Order, the finding of illegal drug
use must be based on a confirmatory test of the same sample that
tested positive on the initial test. The confirmatory test must
be sufficient to validate the accuracy of the initial test.
Proposals 4 through 7, however, would require a confirmation test
on a second urine sample rather than the specimen derived from
the initial test. The proposals thus completely ignore the
initial test and deal with confirmation of only a second sample.
By so doing, the proposals conflict with Executive Order 12564
because they would prevent management from confirming the results
of the initial test sample and thereby would prevent management
from taking appropriate personnel action, as required by Section
5(a), (b), (c), and (e), based on a confirmation of the initial
test results.
As to whether Executive Order 12564 constitutes law or
Government-wide regulation within the meaning of section
7117(a)(1) of the Statute, we find that it has the force and
effect of law. Courts consistently have held that executive
orders issued pursuant to statutory authority are to be accorded
the force and effect given to a law enacted by Congress.
Executive Order 12564 was issued pursuant to the President's
statutory authority to regulate the civil service. See the
Preamble to Executive Order 12564 and 5 U.S.C. 3301 and 7301. See
also Old Dominion Branch No. 496, National Association of Letter
Carriers v. Austin, 418 U.S. 264, 273-76 (1974) and Association
for Women in Science v. Califano, 566 F.2d 339 (D.C. Cir. 1977).
We, therefore, find that Executive Order 12564
constitutes law under section 7117(a)(1) of the Statute. See
National Treasury Employees Union and Department of the Treasury,
Bureau of Government Financial Operations, 21 FLRA 652, 657
(1986). We conclude that Proposals 4-7 are outside the duty to
bargain under section 7117(a)(1) of the Statute because they are
inconsistent with law. In view of this finding, it is unnecessary
to address the Union's claim that Proposals 4 through 7
constitute appropriate arrangements under section 7106(b)(3)
since that section applies only when management exercises one of
the reserved rights set out elsewhere in section 7106. See
American Federation of Government Employees, Local 1546 and
Department of the Army, Sharpe Army Depot, Lathrop, California,
25 FLRA 958 (1987).
Proposals 8 and 9
1. Whether Proposals 8 and 9 Directly Interfere with
Management's Right to Determine Internal Security Practices under
Section 7106(a)(1) of the Statute
Contrary to the Agency's assertions, we find that Proposals
8 and 9 do not interfere with the Agency's right under section
7106(a)(1) of the Statute to determine its internal security
practices. Unlike Proposal 1 discussed above, Proposals 8 and 9
by their terms would not prevent management from utilizing the
drug testing techniques it has adopted to safeguard its personnel
and property. Compare Office of Personnel Management, 16 FLRA 40
(1984) (where the Authority found a proposal which prohibited
management from using a lie detector test violated management's
right under section 7106(a)(1) because it prevented management
from using the investigative techniques it had adopted).
In this case no arguments have been made or evidence
presented by the Agency which shows that allowing an employee
either to retain a portion of the urine sample for freezing,
should the test sample leave the worksite, or to arrange with an
"independent" laboratory to test the first sample or a new
specimen, would preclude the Agency from taking any and all
necessary steps required by its drug testing program. Nor is
there any indication froma reading of the text of the proposal or
an examination of the evidence in the record that the proposals
mandate any action (except reimbursement of costs) on the part of
management in the event of a different result should the employee
exercise the options allowed.
We note further that the Agency has not presented any
arguments with respect to the reimbursement of costs to
employees for drug testing as allowed by Proposal 9. It also is
not apparent from the record that, by requiring the payment of
these costs, the proposal would conflict with any law, rule, or
regulation. Rather, Proposals 8 and 9 merely provide additional
procedures that could be used by an employee to check the
accuracy of the Agency's drug testing results in order to guard
against the negative consequences that could flow from inaccurate
test results.
We therefore find that, in the absence of a showing that
Proposals 8 and 9 would prevent management from using the drug
testing techniques which it has adopted, the proposals do not
violate management's right to determine its internal security
practices under section 7106(a)(1) of the Statute.
2. Whether Proposals 8 and 9 Conflict with Management's
Right to Determine the Means of Performing its Work Under Section
7106(b)(1) of the Statute
We find, contrary to the contention of the Agency, that the
Agency has not demonstrated that Proposals 8 and 9 conflict with
its right under section 7106(b)(1) of the Statute to determine
the means of performing its work.
In the context of section 7106(b)(1), "means" refers to any
instrumentality, including an agent, tool, device, measure, plan
or policy used by an agency for the accomplishing or furthering
of the performance of its work. National Treasury Employees Union
and U.S. Customs Service, Region VIII, San Francisco, California,
2 FLRA 255, 258 (1979). "Method" refers to the way in which an
agency performs its work. National Federation of Federal
Employees, Local 541 and Veterans Administration Hospital, Long
Beach, California, 12 FLRA 270 (1983). The term "performing
work" which appears in section 7106(b)(1) of the Statute is
intended to include those matters which directly and integrally
relate to the Agency's operations as a whole. American Federation
of Government Employees, AFL - CIO and Air Force Logistics
Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604,
618 (1980), enforced sub nom. Department of Defense v. FLRA, 659
F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom., AFGE v. FLRA,
455 U.S. 945 (1982).
In this case, the Agency has not shown, nor is it otherwise
apparent from the record, that Proposals 8 and 9 involve the
technology, methods, and means of performing the Agency's work
under section 7106(b)(1) of the Statute. Even assuming that drug
testing of employees constitutes some aspect of the
work of the Agency within the meaning of section 7106(b)(1), we
find that the proposals do not conflict with this right. The
proposals prescribe neither the methods nor equipment to be used
by the Agency in administering its drug testing program. Instead,
Proposals 8 and 9, as stated above, merely set forth additional
procedures that could be used by an employee who questions the
accuracy of the Agency's drug testing results. The proposals
would not in any manner interfere with any instrumentality,
including an agent, tool, device, measure, plan, or policy used
by the Agency for the accomplishing or the furthering of the
performance of work related to drug testing. Thus, we find that
Proposals 8 and 9 do not interfere with the Agency's right to
determine the methods or means of performing its work under
section 7106(b)(1), but constitute negotiable procedures under
section 7106(b)(2) of the Statute.
3. Whether Proposals 8 and 9 are Nonnegotiable because they
Conflict with an Agency Regulation for which a Compelling Need
Exists
As stated in Section V. B. 1. of this decision, the Agency
claims that these proposals conflict with the Interim Change to
AR 600-85, an Agency regulation for which there is a compelling
need. However, the Agency has not specifically alleged that
Proposals 8 and 9 conflict with any particular part of its
regulations, nor has the Agency presented any arguments which
address how Proposals 8 and 9 conflict with its regulations. We
find, therefore, for the reasons discussed in Section V. B. 1.,
that the Agency regulation cannot serve to bar negotiations on
Proposals 8 and 9 under section 7117(a)(2) of the Statute and
Part 2424.11 of the Authority's Regulations.
VII. Proposals 10 and 11
Section IV - Safeguarding of Information
Proposal 10
A. The parties agree that information concerning results of
field tests will be held in strict confidence and will be
released to only those officials of the employer that have an
absolute need to know.
Proposal 11
B. Information will normally be retained by testing
personnel until 4 "positive" results have been determined. At
such time the supervisor and other management officials involved
in possible discipline/ adverse action or other personnel
actions, will be provided with such information.
A. Positions of the Parties
The Agency contends that by limiting release of test result
information to those officials who have an absolute need to know
and only when four positive test results have been made, these
proposals violate the Agency's right to determine its internal
security practices. Further, the Agency argues that the proposals
are outside the duty to bargain because the proposals address
management's access to its own files rather than unit employees'
conditions of employment.
The Union asserts that these proposals are not concerned
with disclosure of information as much as they are concerned with
the labeling of an individual as a violator of the no-drug
policy. Contrary to the Agency's arguments, the Union contends
that the proposals concern negotiable conditions of employment
and do not violate the Agency's right to determine its internal
security practices. Again, the Union argues that even if the
proposals violate a management right, they are negotiable as an
appropriate arrangement because they limit the labeling of an
employee as a violator of the drug abstinence policy until a
confirmatory test is obtained.
B. Discussion
Proposals 10 and 11 govern the distribution and use of
information as to field test results by installation officials.
Assuming that such field testing would be permitted under the
final Guidelines, we find that Proposals 10 and 11 are
nonnegotiable. However, if field testing is not permissible under
the final Guidelines, these proposals would be moot.
We find first of all, contrary to the Agency's position,
that these proposals concern the conditions of employment of unit
employees. The Union explains the intent of the proposals as
restricting disclosure of information pertaining to results of
employee drug tests until those results have been
confirmed. Union Response to Agency statement of Position at
14-15. Information as to confirmed results would not be subject
to the restriction, only information as to preliminary or initial
test results. Id. at 15. According to the Union, the purpose of
the limitation is to protect employees from injury to their
reputations or other possible detrimental effects resulting from
disclosure of unconfirmed tests.
In this case, the connection to employees' working
conditions is clear. Preliminary results of field drug tests of
individual employees may not be disclosed, except to management
officials with an "absolute need to know," in order to protect
their reputations among their colleagues and to prevent other
possible harm to their employment relationships. In other words,
it is clear that the information which is the subject of the
proposals concerns individual employees and that the nature of
the information is such that it has a direct bearing on) Batters
affecting their employment, including potential grounds for
disciplinary action. We find, therefore, that the proposals
concern matters pertaining to the conditions of employment of
unit employees.
In our view, the circumstances addressed by these proposals
are distinguishable from the proposals at issue in American
Federation of Government Employees, AFL - CIO, National
Immigration and Naturalization Service Council and U.S.
Department of Justice, Immigration & Naturalization Service, 8
FLRA 347, 348 (1982), reversed as to other matters sub nom. U.S.
Department of Justice v. FLRA, &09 F.2d 724 (D.C. Cir. 1983) and
American Federation of Government Employees, AFL - CIO, Local
2302 and U.S. Army Armor Center and Fort Knox, Fort Knox,
Kentucky, 19 FLRA 778, 783-84 (1985). The proposal in the former
case limited access to the agency's investigative files to
certain officials and for certain purposes. The proposal in the
latter case prescribed the kinds of records the agency could
retain, the information which those records should contain, and
the conditions under which the records could be disclosed. The
Authority held that these proposals did not concern the
conditions of employment of unit employees because there was no
demonstration as to how these restrictions on management's record
keeping policies and practices had any direct relationship to
employees' employment relationship or work situation.
Proposal 10
As to the Agency's claim that Proposal 10 is nonnegotiable
under section 7106 (a)(1), the Authority has held that the rules
and policies governing disclosure of information relating to
internal security matters constitute internal security practices
within the meaning of section 7106(a)(1). See National Federation
of Federal Employees, Local 1300 and General Services
Administration, 18 FLRA 789, 795-96 (1985). Proposals requiring
management to disclose such information to employees or to union
representatives have been held to be nonnegotiable. Id. at
796-97. The rationale for that conclusion is the need to protect
the confidentiality of investigations so as not to compromise
management's ability to investigate. The right of management to
protect its internal security is not possible without the power
to conduct investigations. Compare National Federation of Federal
Employees, Local 615 v. FLRA, 801 F.2d 477, 480 D.C. Cir. 1986)
affirming National Federation of Federal Employees, Local 615 and
National Park Service, Sequoia and Kings Canyon National Parks,
U.S. Department of Interior, 17 FLRA 318, 301-21 (1985) (right
to discipline involves right to investigate).
Proposal 10 does not require disclosure of information to
persons outside management so as to threaten the integrity of the
investigative process. Rather, it limits management's disclosure
of that information to other management officials so as to
protect employee privacy and reputation. In any event, management
is not free to disclose information regarding drug testing
results in any manner it chooses. Under Section 503 of Pub. L.
No. 100-71, such information cannot be released without employee
consent unless to the employee's medical review official, the
administrator of an Employee Assistance Program in which the
employee is receiving counseling, any supervisory or management
official having authority to initiate an adverse action against
the employee, or pursuant to court order.
The Union, however, does not define what it means by
confining disclosure of testing results to those management
officials who have an "absolute need to know." We are unable,
therefore, to determine the nature and extent of the restriction
placed on management's disclosure of test results by Proposal 10.
Consequently, we are unable to determine whether Proposal 10
would preclude disclosure of that information to management
officials who are authorized by Pub. L. No. 100-71 to receive it
or whether the proposal would otherwise be inconsistent with law.
Because the Union has not provided the information necessary for
us to determine whether or not Proposal 10 is
inconsistent with Pub. L. No. 100-71, it has not sustained its
burden of creating a record which is sufficient for us to make a
negotiability determination. Thus we will dismiss the Union's
petition for review as to Proposal 10. See Fort Bragg Association
of Educators, NEA and Department of the Army, Fort Bragg Schools,
30 FLRA No. 69 (1987), petition for review filed sub nom. Fort
Bragg Association of Educators, NEA v. FLRA, No. 87-1823 (D.C.
Cir. Dec. 24, 1987). See also Overseas Education Association,
Inc. v. FLRA, 827 F.2d 814, 821 (D.C. Cir. 1987).
We note that the proposal could be read in such a manner
that it would preclude access to testing results by officials to
whom the law would authorize disclosure. For example, section
503(e)(3) of Pub. L. No. 100-71 provides for disclosure to "any"
supervisor or management official having authority to take an
adverse action against an employee. While there may be a number
of officials in the organizational "chain of command" who are
mauthorized to take disciplinary action, and would be entitled to
receive information about an employee's test results, only one of
those officials might be considered to have an "absolute need to
know" those results within the meaning of the proposal. In our
view, this is not an unreasonable interpretation of the proposal
since the Union's intent is to keep disclosure of test results to
a minimum. Interpreted in this manner, the proposal would be more
restrictive than the law, since it would preclude disclosure to
those who are authorized by law to receive employee test
results.
On the other hand, it is not clear that the proposal would
limit disclosure only to the officials named in the law. The
terms used in the proposal--management officials with an absolute
need to know--may include officials who would not fall within the
categories specified in section 503 (e)(1) - (3). Under this
interpretation, the proposal would authorize disclosure of test
results that the law precludes. While this may not be the most
likely or most plausible interpretation, in the absence of any
explanation of the proposal which would clarify the nature and
scope of its limitation, it is an interpretation we cannot rule
out.
In short, there is insufficient evidence in the record for
us to determine whether the proposal would confine disclosure of
employee test results only to those officials and only to those
circumstances which are permitted by law. We are unable to
determine whether the proposal merely reflects legal
requirements. We urge the Union, should it attempt to renegotiate
this proposal, to define the proposal more precisely,
to explain more fully and with greater clarity the intended
effect of the proposal, and to draft the proposal in a manner
which will be consistent with applicable law.
Proposal 11
Proposal 11 requires information regarding an employee's
drug tests to be withheld from management officials having
responsibility for disciplinary action until there have been four
positive test results. It is unclear from the record whether the
Union intends this limitation to apply until four unconfirmed
positive results have been obtained in preliminary tests or until
there have been four confirmed positive tests. The first
interpretation seems to suggest that no information may be
disclosed until initial tests have been conducted on different
samples and four positive results have been obtained on those
samples. This procedure would be similar to that set forth in
Proposals 4-7 above and would be inconsistent with the
requirements of the Executive Order that each initial positive
result receive a confirmatory test.
On the other hand, withholding test results from management
officials until four positive confirmatory tests have been
obtained would also conflict with the requirements of the
Executive Order. Section 5(b) of the order requires agencies to
initiate disciplinary action against employees found 'to use
illegal drugs. Under sections 5(e) and (f) a confirmed positive
test result constitutes a finding of illegal drug use sufficient
to warrant the imposition of discipline. By limiting the
disclosure of information to management officials with authority
to initiate discipline until there are four confirmed positive
results, the proposal would conflict with the requirement of the
Executive Order that management initiate discipline on the basis
of a confirmed positive test, since that one confirmed result
would substantiate illegal drug use by an employee. By depriving
management officials of information as to the initial confirmed
positive test, the proposal would prevent management from
initiating discipline as required by the Order.
Consequently, we conclude that Proposal 11 is inconsistent
with law and outside the duty to bargain under section 7117(a)(1)
of the Statute. Because Proposal 11 is nonnegotiable under
section 7117(a)(1), we do not need to address the Union's
contention that it is an appropriate arrangement within the
meaning of section 7106(b)(3).
VIII. Proposal 12
Section VI - Observation of Sampling Process
At the time of the sample, no observer will be used unless
the agency has probable cause to believe that the employee will
alter the test sample.
A. Positions of the Parties
The Agency contends that this proposal conflicts with its
right to determine internal security practices because direct
observation of an employee providing a urine sample is the
technique the Agency has established to ensure that a chain of
custody is maintained. The Agency also argues that the proposal
"clearly infringes on the right to determine work to be assigned,
i.e., observation during the testing process." Agency Statement
of Position at 13. The Agency further contends that the proposal
conflicts with an Agency regulation for which a compelling need
exists, namely, Paragraph 5-14f(l)(e) and Appendix H-5 to the
Interim Change to AR 600-85, which do not establish any
precondition such as probable cause concerning the requirement
for observation. Finally, the Agency argues that the proposal is
not an appropriate arrangement.
In a supplemental submission, the Agency referenced its
Statement of Position in Case No. O-NG-1324 in which it had
modified its testing policy with respect to the direct
observation of employees providing urine samples. The Agency
stated:
Executive Order 12564 allows for individual privacy "unless
the agency has reason to believe that a particular individual may
alter or substitute the specimen to be provided." (Section
4c).... In (Case No. O-NG-1269) we had also argued that such a
proposal conflicted with an agency regulation for which there was
a compelling need. That argument was no longer applicable after
the issuance of EO 12564 and the modification of our observation
procedures.
Agency's Supplemental Submission of September 1, 1987, at
2.
The Union asserts that its proposal does not negate the
Agency's claimed right to require urine samples, but rather
allows observation on a case by case evaluation that an employee
is unreliable. According to the Union, the proposal
does not directly interfere with the exercise of management's
rights, but constitutes a negotiable procedure. The Union also
argues that the Agency has failed to show that it has a
compelling need for its regulation. Finally, the Union argues
that the proposal restricts the infringement on employee privacy
by conditioning observation on a finding that reasonable
suspicion exists that the employee may have the means or
intention to alter the sample, and therefore the proposal
constitutes an appropriate arrangement.
B. Discussion
Proposal 12 restricts management's decision to assign an
observer to monitor the collection of a urine sample to those
circumstances where it has probable cause to believe that an
employee will alter the test sample. We find that the proposal is
nonnegotiable under section 7117(a)(1) of the Statute because it
is inconsistent with section 4 (c) of Executive Order 12564.
The Union does not explain or define the term "probable
cause." In discussing the effect of the proposal the Union at one
point states that it conditions observation upon a finding of
reasonable suspicion. Union Response to Agency Statement of
Position at 18. However, the term "probable cause" is a legal
term with a commonly accepted meaning and we are reluctant to
abandon that meaning based solely on a single, statement by the
Union as to the effect of the proposal. Therefore, to the extent
that the term 'probable cause" has a meaning and effect which is
different from the phrase "reasonable suspicion," we will
interpret the proposal in terms of the commonly accepted
definition of the words used in the proposal.
Generally speaking, the phrase "probable cause" refers to
the quantum of evidence which is necessary to justify an arrest
or the issuance of a search warrant. While the content of the
term may vary depending on the circumstances, at a minimum the
phrase requires evidence sufficient to warrant the conclusion
that certain facts exist. Put differently, "probable cause" means
that there is more evidence supporting a conclusion than there is
against it. See Black's Law Dictionary (Fifth Edition) (1979) at
1081. That is, the existence of evidence suggesting that
something has occurred or is occurring is not sufficient; the
weight of the evidence must be such that the conclusion that it
has occurred or is occurring is "probable." Thus, the proposal
would prevent the Agency from assigning an observer unless it had
sufficient evidence to conclude that an employee was altering or
about to alter a test sample.
Under section 4(c) of the Executive Order, procedures
relating to the collection of urine samples must provide for
employees to give those samples in private except where
management has "reason to believe" that a particular employee
will alter or substitute for the sample. The Executive Order does
not define the phrase "reason to believe," but, in our view, it
is significant that the term 'probable cause" was not used. If
the phrase "reason to believe" were intended to mean the same as
"probable cause," it is hard to understand why the latter phrase,
which has a clearly defined legal meaning, was not used. We can
only conclude, therefore, that the standard established by the
Executive Order is different from the standard prescribed by
Proposal 12. We also conclude that the Executive Order standard
does not require the same quantum of evidence as is required by a
'probable cause' standard. The phrase "reason to believe'
contains no qualifying terms; for example, it does not provide
that there be a "sufficient" reason to believe that an employee
will alter a sample. In short, the Executive Order would appear
to require only that there be some evidence giving rise to a
belief that an employee is altering or about to alter a test
sample. It does not require that that evidence have any
particular weight or probative value other than that it support
or tend to support a belief in those facts.
The "probable cause" standard established by Proposal 12, is
more restrictive than the "reason to believe" standard prescribed
by the Executive Order. The proposal, that is, would permit the
Agency to assign an observer to monitor the taking of a test
sample only where the weight of the available evidence supports
the conclusion that the employee is tampering with or is about to
tamper with the sample. The Executive Order would permit an
observer where there is any reason at all which gives rise to and
supports a belief that the employee may alter the sample. By
precluding management from assigning an observer where the
Executive Order would permit one to be assigned, Proposal 12 is
inconsistent with section 4(c) of Executive Order 12564 and
outside the duty to bargain under section 7117(a)(1) of the
Statute. See 52 Fed. Reg. 30639. Because Proposal 12 is
nonnegotiable under section 7117(a)(1), we do not need to address
the Union's contention that it is an appropriate arrangement
within the meaning of section 7106(b)(3).
IX. Order
The Agency must upon request, or as otherwise agreed to by
the parties, bargain on Proposals 3, 8, and 9. 3 The petition for
review as to Proposals 1, 2, 4-7, and 10-12 is dismissed.
Issued, Washington, D.C., January 27,1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote 1 Pub. L. No. 100-71 placed certain restrictions on
the use of appropriated funds for drug testing of civilian
employees. The Department of the Army's drug testing program is
temporarily exempted from those restrictions. Section
503(b)(1)(C).
Footnote 2 In its Statement of Position, the Agency requests
that it bepermitted to file a supplemental brief to address
certain appropriate arrangement arguments made by the Union in
its Petition for Review which the Agency claims were too
inadequate for it to address. The Union, in its Response to the
Agency's Statement of Position, asserts that the Agency should
not be allowed to file a supplemental brief. Subsequently, on
July 30, 1986, the Agency filed a supplemental statement and
requested that it be considered by the Authority. The Authority
will not normally consider any submissions filed by any party
other than those authorized under sections 2424.2 through 2424.7
of its Rules and Regulations, unless "such submission is
requested by the Authority; or unless ... the Authority in its
discretion grants permission to file such submission." See
section 2424.8 of the Authority's Rules and Regulations. In this
case, the Authority, pursuant to a notice published in 5l Fed.
Reg. 30124 (August 22, 1986), provided interested parties with an
opportunity to file amicus briefs on the significant issues
involved in this case and other drug testing cases. In view of
this action by the Authority, we will grant the Agency's request
to file its supplemental submission.
Footnote 3 In finding these proposals to be negotiable, we
make no judgment on their merits.