[ v31 p45 ]
31:0045(10)NG
The decision of the Authority follows:
31 FLRA NO. 10
31 FLRA 45
11 FEB 1988
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2185
Union
and
TOOELE ARMY DEPOT
TOOELE, UTAH
Agency
Case Nos. O-NG-1288
O-NG-1369
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
These cases are before the Authority because of
negotiability appeals filed under section 7105(a)(2)(D) and (E)
of the Federal Service Labor - Management Relations Statute (the
Statute). They concern the negotiability of six proposals. Since
both cases involve the same parties, arise out of the same
negotiations, and present similar issues concerning the Agency's
testing of selected categories of employees for drug abuse, we
have consolidated them for decision. For the reasons set forth
below, we find that the proposals are outside the duty to
bargain.
Specifically, we find that Proposal 1, which allows drug
testing of employees only on the basis of probable cause, is
outside the duty to bargain because it directly interferes with
management's right to determine its internal security practices
under section 7106(a)(1) of the Statute and is not a negotiable
appropriate arrangement under section 7106(b)(3). Proposal 2 and
3 concern the observation of employees while giving urine samples
for drug testing. Proposal 2 has become moot because the Agency
has changed its policy and will no longer require observation of
all employees tested. This change occurred in order to comply
with the requirement of Executive Order 12564 for individual
privacy unless there is reason to believe that the specimen may
be altered or substituted. We find that Proposal 3, which allows
direct observation only with the written consent of
employees, is outside the duty to bargain because it is
inconsistent with section 4(c) of Executive Order 12564.
Proposals 4 and 6, which prohibit the Agency from requiring
employees to sign forms consenting to participate in the drug
testing program, are outside the duty to bargain because they
directly interfere with management's right to determine its
internal security practices and are not appropriate arrangements.
Proposal 5 is outside the duty to bargain because, by prohibiting
implementation of the drug testing program until all lawsuits
filed by the Union or by unit employees challenging Executive
Order 12564 are resolved, it directly interferes with
management's right to determine its internal security practices
and is not an appropriate arrangement.
II. Background
On February 10, 1986, the Department of the Army promulgated
regulations implementing a Department of Defense Directive
concerning civilian employee drug abuse testing. Interim Change
No. Ill to Army Regulation 600-85, Alcohol and Drug Abuse
Prevention and Control Program (Interim Change to AR 600-85). The
proposals in dispute in this case were offered by the Union in
connection with bargaining on the implementation of the local
supplement to the Interim Change to AR 600-85, which established
a drug abuse testing program for civilian employees in critical
jobs. The Union presented proposals which deleted certain
sections of the regulation and proposed additions to the
regulation. In Case No. O-NG-1288, the parties agree that the
proposals numbered 1-4 in this decision are in dispute. In Case
No. O-NG-1369, the proposals numbered 5 and 6 in this decision
are in dispute.
In National Federation of Federal Employees, Local 15 and
Department of the Army, U.S. Army Armament, Munitions and
Chemical Command, Rock Island, Illinois, 30 FLRA No. 115
(1988), we discussed the provisions of the Interim Change to AR
600-85 and outlined in detail subsequent events having direct
relevance to drug testing programs in the Executive Branch of the
Federal Government in general and to the Army drug testing
program in particular. Specifically, we addressed: (1) the
issuance of Executive Order 12564, entitled "Drug - Free Federal
Workplace"; (2) the issuance of Federal Personnel Manual (FPM)
Letter 792-16 (November 28, 1986), implementing section 6(a)(1)
of the Executive Order; (3) the publication of the proposed
"Scientific and Technical Guidelines for Drug Testing
Programs," by the Department of yealth and Human Services (HHS),
pursuant to Section 4(d) of the Executive Order; and (4) the
enactment of section 503 of the Supplemental Appropriations Act
of 1987, Pub. L. No. 100-71, 101 Stat. 391, 468 (July 11, 1987).
We noted that the Authority had invited interested parties to
file amicus briefs addressing the negotiability of proposals
relating to various aspects of agency drug testing programs. See
U.S. Army Armament, Munitions and Chemical Command, slip op. at
2-5.
We also discussed Federal court litigation involving
challenges to the constitutionality of the Army's drug testing
program. Consistent with the decision of the U.S. Court of
Appeals for the District of Columbia Circuit in NFFE v.
Weinberger, 818 F.2d 935 (D.C. Cir. 1987), we concluded that the
only issues properly before us concerned the negotiability of
union proposals, not the legality of drug testing in the Federal
Government. Consequently, we will not consider the
constitutionality of the Army's drug testing program in this
case. Rather, for purposes of decisions which include this issue,
we will presume the validity of the Executive Order and agency
drug testing programs. See U.S. Army Armament, Munitions and
Chemical Command, slip op. at 5-7. We also note that as of the
date of this decision, final regulations concerning the
"Scientific and Technical Guidelines for Drug Testing Programs"
have not been published by HHS in the Federal Register.
III. Proposal 1
The Union proposes that the following language be deleted
from the drug testing program proposed by local management and
that drug testing be permitted only where there is probable cause
to believe that drugs are being used:
The Commander or designee will direct that a urine test be
conducted and will identify the employee, part of an
organization, or the entire organization for testing.
A. Positions of the Parties
The Agency contends that because the proposal would limit
drug testing to instances where there is probable cause
to suspect drug abuse, it conflicts with management's right to
determine its internal security practices under section
7106(a)(1) of the Statute. In particular, the Agency argues that
by limiting management to testing for probable cause, the
proposal would prevent the use of random testing as a part of its
internal security system. The Agency also asserts that the Union
did not claim in its petition for review that the proposal is an
appropriate arrangement for employees adversely affected by the
exercise of management's rights. The Agency also maintains that
the proposal would excessively interfere with its right to
determine its internal security practices. In its supplemental
submission of September 1, 1987, the Agency also objected to the
proposal on the grounds that by precluding the use of random
testing, the proposal is contrary to Executive Order 12564.
Supplemental Submission at 2.
The Union contends that the use of random drug testing
constitutes an unreasonable search prohibited under the Fourth
Amendment of the Constitution. In its response to the Agency's
statement of position, the union also maintains that its proposal
requiring probable cause for drug testing constitutes an
appropriate arrangement which would validate the otherwise
unconstitutional regulation. The Union denies that its proposal
would excessively interfere with the Agency's decision to
institute a drug testing program. The Union also contends that
its proposal strikes a balance between the competing needs of
employees to be protected from invasions of privacy and the needs
of the Agency to conduct drug tests.
B. Discussion
By limiting management to testing employees for use of
illegal drugs on the basis of 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). In U.S. Army Armament, Munitions and Chemical
Command, we held that a proposal which limited testing to
probable cause was not inconsistent with Executive Order 12564 or
FPM Letter 792-16. We also found that random testing of employees
in critical positions was 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. We concluded that by limiting management to testing
employees only on the basis of probable cause, thereby precluding
random testing, the proposal in that case directly
interfered with management's right to determine its internal
security practices under section 7106(a)(1) of the Statute. We
also found in U.S. Army Armament, Munitions and Chemical Command
that the proposal was not an appropriate arrangement under
section 7106(b)(3) because it negated the agency's decision to
use random testing for purposes of protecting the security of its
property, personnel, and operations, and would reverse the
substantive effect of that decision.
Because Proposal 1 in this case would also preclude the
testing of employees on a random basis, it has the same effect as
the proposal in U.S. Army Armament, Munitions and Chemical
Command. Consistent with our decision in that case, we find that
Proposal 1 directly interferes with management's right to
determine its internal security practices and is not an
appropriate arrangement under section 7106(b)(3) because it
excessively interferes with the exercise of that right.
Consequently, we conclude that Proposal 1 is outside the duty to
bargain.
IV. Proposals 2 and 3
Proposal 2
The Union proposes to delete the following language from the
regulation:
The observer observes the employee urinate into the specimen
bottle and placing lid on the bottle.
Proposal 3
The Union proposes to add the following language to the
regulation:
No person shall be permitted to observe an employee urinate
unless the employee gives his/her written consent. The giving of
such consent shall be purely voluntary and no adverse
consequences shall follow from the refusal to give such
consent.
A. Positions of the Parties
The Agency contends that Proposals 2 and 3 conflict with
management's right to determine its internal security
practices under section 7106(a)(1) of the Statute because direct
observation is a technique which is necessary to verify that a
urine specimen is the true, uncontaminated, and unaltered urine
of the employee being tested. The Agency states that requiring
employee consent to observation would place a condition precedent
on the use of that technique. The Agency also maintains that the
proposals would violate its right to assign work under section
7106(a)(2)(B) of the Statute because they would preclude the
assignment of an individual to observe the taking of urine
samples unless the employee being tested consents. Finally, the
Agency contends that (1) the proposals conflict with that portion
of the Interim Change to AR 600-85 which specifies the employees
who will act as observers of drug testing and (2) a compelling
need exists for that regulation because it is essential to the
integrity of the drug testing program that an "unimpeachable
chain of custody" be established. Agency Statement of Position at
8.
In a supplemental submission, the Agency referenced its
Statement of Position in Case No. O-NG-1324 and noted that 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-1288) 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 contends that the requirement that an observer be
present when employees provide urine samples is an
unconstitutional invasion of privacy. The Union points out that
its proposal does not prevent management from having an observer
present if the employee consents. The Union disagrees with the
Agency's contention that the presence of an observer is essential
to carrying out the drug testing program. Finally, the Union
denies that its proposals conflict with management's right to
assign work under section 7106(a)(2)(B) because the task of
observing urine sample collection is not a legal task.
B. Discussion
In view of the Agency's statement that it has changed its
policy on direct observation to comply with the requirements of
section 4(c) of Executive Order 12564, we conclude that the
Agency no longer requires an observer for every employee who
gives a urine sample and that its regulations no longer contain
such a requirement. We find, therefore, that the dispute over
Proposal 2, which would have deleted that regulatory requirement,
is moot and will not be considered further.
In U.S. Army Armament, Munitions and Chemical Command
(Proposal 12), we considered a proposal which would have
restricted management's ability to assign an observer to monitor
the collection of a urine sample to those instances where there
was probable cause to believe that the employee would alter the
test sample. We found that proposal to be nonnegotiable under
section 7117(c) of the Statute because it was inconsistent with
section 4(c) of Executive Order 12564.
Proposal 3 is similar in effect to Proposal 12 in U.S. Army
Armament, Munitions and Chemical Command. Proposal 3 also would
restrict management's decision as to whether to assign an
observer when an employee is giving a urine sample, since it
would permit observation only when the employee consents. Even
where management had reason to believe that an employee would
alter the test sample, it could not assign an observer unless
that employee consented. The proposal would preclude management
from assigning an observer in circumstances where an observer
would be permitted under section 4(c) of the Executive Order.
That is, Proposal 3 establishes a standard which is more
restrictive than the Executive Order. Thus, consistent with U.S.
Army Armament, Munitions and Chemical Command, we find that
Proposal 3 is outside the duty to bargain under section
7117(a)(1) of the Statute because it is inconsistent with section
4(c) of Executive Order 12564. In light of our conclusion, it is
unnecessary to reach the Agency's other contention as to the
negotiability of the proposal.
V. Proposals 4 and 6
Proposal 4
No employee shall be required to sign any document
associated with the drug abuse testing program stating he or she
agrees to it when, in fact, he or she does not agree to
it. All employees required to sign such documents will be given
the option of having their signatures on such documents to
signify notice and understanding of the terms of the document.
Proposal 6
The Form DA-5019-R will be removed from the files of any
employees who have signed it and destroyed.
A. Positions of the Parties
The Agency states that the document referred to in the
proposal is DA Form 5019-R, "Condition Of Employment For Certain
Civilian Positions Identified As Critical Under The Drug Abuse
Testing Program." The Agency maintains that its intent is not
simply to require employees to agree to the necessity for a drug
testing program, but rather to require employees to agree to
adhere to the program's terms as a continuing condition of
employment. The Agency contends that the form is an integral part
of its internal security program and that because the Union's
proposals would negate management's ability to implement the
program, the proposals therefore conflict with management's right
to determine its internal security practices under section
7106(a)(1) of the Statute.
The Agency also contends that the proposals conflict with
its rights under section 7106(a)(2)(A) to assign, remove, or
reduce in grade employees who refuse to sign DA Form 5019-R or
who sign the form but later refuse to be tested. Further, the
Agency contends that the form is a means of carrying out the work
of the Agency and that by restricting the use of the form, the
proposals interfere with management's right under section
7106(b)(1) to determine the methods and means of carrying out its
work. Finally, the Agency contends that the proposals conflict
with an Agency regulation, the Interim Change to AR 600-85, for
which a compelling need exists because the drug testing program
is essential for ensuring that civilian employees in critical
positions are drug free.
The Union contends that these proposals are intended to
require only that employees acknowledge awareness of the drug
testing program. The Union would eliminate the
requirement that employees consent to the program by signing the
form. The Union contends that use of the form is a negotiable
procedure and that the Agency could use other procedures to
accomplish the requirement that employees be notified of the drug
testing program. The Union also maintains that the proposal to
rescind use of the form by removing it from the files of those
employees who have already signed is an appropriate arrangement
for those employees since the proposal relieves them of the
additional indignity of being forced to consent to the form. The
Union disputes the Agency's contention that the consent form
required by the Agency is related to the Agency's ability to
protect its internal security.
B. Discussion
1. Whether Proposals 4 and 6 Directly Interfere With
Management's Right to Determine Its Internal Security Practices
Under Section 7106(a)(1)
We find that Proposals 4 and 6 are outside the duty to
bargain because they interfere with management's right to
determine its internal security practices under section
7106(a)(1) of the Statute. Specifically, we find that the
requirement that employees in positions designated as critical
sign a form agreeing to comply with the Agency's drug testing
program as a condition of employment is designed to ensure that
employees will cooperate with the program.
The form which is the subject of these proposals, DA Form
5019-R, is entitled "Condition Of Employment For Certain Civilian
Positions Identified As Critical Under The Drug Abuse Testing
Program." A copy of the form is attached as an appendix to this
decision. Section A of the form, captioned "Requirements,"
describes the requirements of the Agency's drug testing program.
Among other things, Section A states that: (1) prospective or
current employees in critical positions are required to sign the
statement as a condition of employment; (2) applicants for
critical jobs who do not sign the statement will not be selected
for the position; (3) employees currently in critical jobs who
refuse to sign will be voluntarily or involuntarily reassigned or
demoted to a noncritical job or separated from Federal
employment; (4) individuals who sign and later refuse to submit to urinalysis testing will be nonselected, reassigned,
demoted, or separated; and (5) employees will be required as a
condition of continued employment to submit urine samples for
testing purposes in certain circumstances. Section B of the form,
entitled "Agreement," states: "This is to certify that I
understand the contents of the policy described above and the
reasons therefore (sic), and that I agree to adhere to the terms
of this policy as a continuing condition of my employment in
positions to which this agreement applies."
The two proposals at issue here would preclude the use of DA
Form 5019-R by the Agency for the purpose of (1) notifying
employees of the drug testing program and of the fact that their
cooperation and participation in the program are conditions of
their employment; and (2) securing employee consent to those
conditions of employment. The proposals would prevent the Agency
from obtaining employee consent to the drug testing program and
the assurances of employee compliance which the Agency has
determined to be necessary as part of its internal security
program.
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. In order to ensure the efficient operation of
its internal security program, an agency can determine that as a
condition of employment it needs written assurances that
employees will comply with certain internal security practices or
requirements which apply to the positions that they occupy. See
National Federation of Federal Employees, Local 1827 and Defense
Mapping Agency, Aerospace Center, St. Louis Air Force Station,
Missouri, 16 FLRA 791 (1984), in which the Authority found to be
nonnegotiable a proposal for a secrecy agreement which would have
replaced the secrecy agreement that the agency had determined to
be a necessary part of its internal security plan. In reaching
that decision, the Authority concluded that the agency's secrecy
agreement embodied its determination of what constituted
necessary notice to employees of the requirements of their jobs
so as to ensure compliance with the Espionage Act. Id. at 792.
Similarly, an integral part of establishing a drug testing
program is a decision that employees will be required to give a
written assurance that they will comply with the requirements of
the program. In establishing its drug testing program,
the Agency has determined that designated positions are critical
to its operations and that drug abuse by employees in those
positions would pose a serious threat to its operations. The
Agency has also determined that it needs written assurances from
employees currently occupying those positions, or by individuals
being hired for those positions, that they agree as conditions of
their employment to comply with the requirements of the drug
testing program. The Agency's view is that without that
assurance, it would be taking a risk that those employees will
not comply with the program. In order to minimize that risk,
management has determined that only those employees willing to
commit themselves to being drug free and to being tested for drug
abuse may be employed in positions designated as critical.
We conclude that there is a link between management's
requirement that employees sign the form and management's right
to determine its internal security practices. Where a link has
been established between an agency's action and its expressed
security concerns, we will not review the merits of that action.
See U.S. Army Armament, Munitions and Chemical Command, slip op.
at 11.
By precluding management from using the forms for the stated
purposes, Proposals 4 and 6 are outside the duty to bargain
because they directly interfere with management's right to
determine its internal security practices under section
7106(a)(1) of the Statute. Because we find that these proposals
directly interfere with management's right, we also find that the
proposals are not negotiable procedures under section 7106(b)(2)
for notifying employees of the requirements of the drug testing
program. In addition to being a means of notification of
employees, the form also serves as a record that employees have
agreed to accept the requirements of the program as a condition
of their employment.
2. Whether Proposals 4 and 6 Constitute Appropriate
Arrangements Within the Meaning of Section 7106(b)(3)
Finally, we consider whether Proposals 4 and 6 are
"appropriate arrangements" for employees adversely affected by
the exercise of a management right within the meaning of section
7106(b)(3). To determine whether a 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 Proposals 4 and 6 are intended to be
"arrangements" for the amelioration of adverse consequences to
employees resulting from the imposition of drug testing, we find
that they are not "appropriate" arrangements within the meaning
of section 7106(b)(3). The proposals benefit employees by
removing the requirement of consent, or previous signatures
indicating consent, to a program which they may find offensive.
The burden placed by the proposals on management's determination
of its internal security requirements, however, is excessive. As
a part of its internal security plan, management designated
certain of its positions as critical, based on its assessment of
threat to its operations, personnel, and property which would
result from use of illegal drugs by employees in those positions.
The proposals remove consent to drug testing as a condition of
employment for critical positions. As a consequence, management
must retain in, or hire into, those positions persons unwilling
to state that they will comply with the testing program.
By precluding management from requiring employees to consent
to the Agency's drug testing program, these proposals force the
Agency to take risks which it has determined it cannot afford to
take. The proposals completely frustrate the purposes for which
the Agency designated the positions to be critical positions. We
find that the burden placed on management's ability to protect
the security of its operations, personnel, and property by these
proposals exceeds the benefit to employees. Thus, we conclude
that Proposals 4 and 6 excessively interfere with management's
right to determine its internal security practices under section
7106(a)(1) and are not appropriate arrangements within the
meaning of section 7106(b)(3). Proposals 4 and 6, therefore, are
outside the duty to bargain. In so finding, we do not pass on the
other grounds for nonnegotiability alleged by the Agency.
We note, as we did in U.S. Army Armament, Munitions and
Chemical Command, slip op. at 7, that we will assume the validity
of Executive Order 12564 and any applicable Government-wide
regulations in resolving duty to bargain questions arising from
drug testing proposals and will not resolve questions
of legality which are the subject of court litigation. In that
connection, we do not address constitutional issues which may be
presented by the form and its use. Specifically, we do not
address the issues of the voluntariness or involuntariness of an
employee's consent to the drug testing program by being required
to sign the form as a condition of employment, and the effect of
signing the form on an employee's Fourth Amendment rights. See,
for example, National Federation of Federal Employees v.
Weinberger, 818 F.2d 935, 942-43 (D.C. Cir. 1987) (compulsory
urinalysis of public sector employees qualifies as a "search and
seizure" within the meaning of the Fourth Amendment, and an
otherwise unreasonable search cannot be redeemed by a public
employer's exaction of a "consent" to the search as a condition
of employment; however, advance notice of the employer's
condition may be taken into account as one of the factors
relevant to the extent of the employees' legitimate expectations
of privacy); McDonell v. Hunter, 809 F.2d 1302, 1310 (8th Cir.
1987) (a legal search conducted pursuant to consent given
voluntarily and without coercion is not unreasonable and does not
violate the Fourth Amendment; however, advance consent to future
unreasonable searches is not a reasonable condition of
employment).
VI. Proposal 5
Employees shall not be subjected to mandatory urinalysis in
accordance with AR-600-85 unless and until all lawsuits filed by
the Union or bargaining unit employees challenging that
regulation and to Executive Order 12564 and to all regulations
promulgated under that Regulation have been resolved.
A. Positions of the Parties
The Agency contends that Proposal 5 violates management's
right to determine its internal security practices under section
7106(a)(1) of the Statute because it would prevent it from
carrying out its drug testing program. Likewise, the Agency
denies that the proposal constitutes an appropriate arrangement
under section 7106(b)(3). The Agency argues that the proposal
would prevent management from implementing the drug testing
program for as long as any lawsuit attacking the validity of the
program is pending, which could be an indefinite period of time.
The Union contends that Proposal 5 is an appropriate
arrangement for employees adversely affected by the Agency's
mandatory random drug testing program. The Union denies that the
proposal would prevent the Agency from implementing its program
and claims that it would merely impose a reasonable delay on
implementation of the program. The Union maintains that a delay
would prevent harm to employees should the program be declared
unconstitutional by the courts and contends that immediate
implementation of the program is not necessary.
B. Discussion
1. Management's Rights Under Section 7106(a)(1)
We find that Proposal 5 is outside the duty to bargain under
section 7106(a)(1) of the Statute. The proposal would prevent the
Agency from implementing the mandatory drug testing of employees
under the Interim Change to AR 600-85 "until all lawsuits filed
by the Union or bargaining unit employees" have been resolved.
The proposal is not limited to lawsuits challenging the Interim
Change to AR 600-85. The proposal also includes lawsuits
challenging Executive order 12564 and regulations promulgated
under that Order.
Control over the filing of lawsuits lies completely with the
Union or with bargaining unit employees. Thus, it would be
possible for the Union or individual bargaining unit employees to
prevent the implementation of the drug testing program simply by
filing lawsuits. The Union and employees would be able to control
when the drug testing program would take effect and the Agency
would be effectively deprived of any control over implementation.
By committing to parties with an interest in preventing the
implementation of drug testing programs the power to determine
the length of time implementation will be delayed, Proposal 5
would prevent the Agency from implementing its drug testing
program.
Proposal 5 is distinguishable from Proposal 1 found to be a
negotiable procedure in American Federation of Government
Employees, AFL - CIO, Local 1999 and Army-Air Force Exchange
Service, Dix - McGuire Exchange, Fort Dix, New Jersey, 2 FLRA
153 (1979), 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 (1983). The proposal in that case would have stayed
the imposition of a suspension or a removal until completion of
the contractual grievance procedure, including
arbitration. The delay which would have been caused by the
proposal in Dix - McGuire was limited to the completion of the
steps of the negotiated grievance procedure and arbitration. Any
delay in management's right to discipline employees lay primarily
with the arbitrator, a neutral third party. Moreover, the agency
in Dix - McGuire had agreed to be bound by the negotiated
grievance procedure. The Agency in this case has not similarly
consented to the use of litigation as a method of dispute
resolution.
As we established in U.S. Army Armament, Munitions and
Chemical Command and in our discussion of Proposal 1 in this
case, drug testing of designated employees constitutes an
exercise of management's right to determine its internal security
practices. Proposal 5 would impose a stay of Agency action, the
termination of which is totally within the control of parties
with an interest in delaying that action. We find that although
procedural in form, the proposal would prevent the Agency from
exercising its rights under section 7106(a)(1). Therefore, unless
the proposal is negotiable as an appropriate arrangement, it is
outside the duty to bargain. See National Federation of Federal
Employees and U.S. Department of the Interior, U.S. Geological
Survey, Eastern Mapping Agency, 21 FLRA 1105, 1106-08 (1986)
(Provision 1). Our decision in this matter relates only to the
question of negotiability of the Agency drug testing program. If
the Union wishes to challenge the imposition of the program on
other grounds than negotiability, its proper recourse is to seek
injunctive or other appropriate relief from a court.
2. Whether Proposal 5 is an Appropriate Arrangement Under
Section 7106(b)(3)
Having determined that Proposal 5 conflicts with
management's right to determine its internal security practices,
we consider whether the proposal constitutes an "appropriate
arrangement" within the meaning of section 7106(b)(3) of the
Statute. We conclude that even assuming that the proposal is
intended to be an "arrangement" for employees adversely affected
by the exercise of a management right, it is not an "appropriate"
arrangement.
While the proposal attempts to benefit employees by
postponing implementation of the Agency's drug testing program,
the burden placed on management's rights is excessive. The
protection afforded employees by the proposal does not
outweigh the effect on management's rights of an indefinite
postponement of management's drug testing program, a delay which
is subject to the action of the Union and employees with an
interest in preventing the program from taking effect. The
balance between employee and management interests which is
created by the proposal is wholly disproportionate: by making
implementation of the drug testing program contingent on the
actions of parties with an interest in preventing the program
from taking effect, the proposal does not take into account the
Agency's need to protect its internal security. In our view, the
proposal excessively interferes with management's right to
determine its internal security practices under section
7106(a)(1) of the Statute. For these reasons, therefore, we
conclude that Proposal 5 is not an appropriate arrangement within
the meaning of section 7106(b)(3) of the Statute and is outside
the duty to bargain.
VII. Order
The petition for review is dismissed.
Issued, Washington, D.C., February 11, 1988.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY