31:0070(12)NG - Fort Bragg Association of Educators, NEA and Army, Fort Bragg Schools -- 1988 FLRAdec NG
[ v31 p70 ]
31:0070(12)NG
The decision of the Authority follows:
31 FLRA NO. 12 31 FLRA 70 (1988) 12 FEB 1988 FORT BRAGG ASSOCIATION OF EDUCATORS, NEA Union and DEPARTMENT OF THE ARMY FORT BRAGG SCHOOLS Agency Case No. O-NG-1405 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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). This appeal originally concerned 44 proposals. In Fort Bragg Association of Educators NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508 (1987) (Fort Bragg Schools), petition for review filed sub nom. Fort Bragg Association of Educators, NEA v. FLRA, No. 87-1823 (D.C. Cir. Dec. 24, 1987), we reached decisions on 43 of the proposals. This case concerns the proposal which was not decided in Fort Bragg Schools. This proposal precludes the Agency from requiring bargaining unit employees to submit to either a polygraph examination or a urinalysis for the purpose of uncovering drug usage. For the reasons which follow, we find this proposal to be nonnegotiable because it directly interferes with the Agency's right to determine its internal security practice under section 7106(a)(1) of the Statute. II. Background We severed Proposal 1 from the other 43 proposals in Fort Bragg Schools because it raised the issue of whether the Agency's drug testing program could be nullified by collective bargaining. We noted that similar issues had been raised in other cases, and the parties in those cases had been given the opportunity to respond to legal and regulatory developments affecting the drug testing issue. Thus, we found it appropriate to sever Proposal 1 in the interest of expeditiously processing the other 43 proposals in the appeal. 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 described those events bearing upon the drug testing issue. We specifically discussed: (1) the issuance of Executive Order 12564, September 15, 1986, entitled "Drug - Free Federal Workplace"; (2) the issuance of Federal Personnel Manual (FPM) Letter 792-16, November 28, 1986, in response to 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 Health and Human Services, as authorized by 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 interested parties had been invited to file amicus briefs addressing the negotiability of proposals concerning various facets of agency drug testing programs. See U.S. Army Armament, Munitions and Chemical Command, slip op. at 2-5 (Section II A). In U.S. Army Armament, Munitions and Chemical Command, we also discussed Federal court litigation challenging the constitutionality of the agency'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 scope of our inquiry into the negotiability of drug testing proposals did not encompass determining the legality of drug testing of Government employees. Consequently, we will not consider the allegation that drug testing itself is illegal. Rather, our decision here will assume the validity of the Executive Order and of drug testing programs instituted under its requirements. III. Proposal 1 Article Three - Employee Rights and Obligations Section 7. when a bargaining unit member is the subject of a civil or criminal investigation by a civilian agency or by a government agency outside the Department of the Army, and Management has knowledge of the investigation, management shall make every reasonable effort to ensure that such investigation is conducted in a discreet manner and without any more invasion of privacy than is absolutely necessary under the circumstances. If a bargaining unit member is to be served with a warrant or subpoena or is to be interviewed in connection with a criminal investigation while at school during the normal duty day and Management has advance knowledge, it shall attempt to ensure that such activity is done in private without the knowledge of other employees or students. Management shall not request that a bargaining unit member submit to a polygraph examination and/or urinalysis for purposes of discerning drugs within the system. (only the underlined portion is in dispute.) A. Positions of the Parties The Agency asserts that the disputed sentence violates its right to determine internal security practices under section 7106(a)(1) of the Statute because of its prohibition on certain investigative techniques to uncover illegal drug use. The Union argues that the disputed sentence is intended only to prohibit the Agency's use of unconstitutional investigative techniques to uncover employee's illegal off-duty conduct. The Union claims that use of such techniques is not necessary to protect physical property, operations or confidential information. Therefore, the Union contends, the proposal does not interfere with the Agency's right to determine its internal security practices. B. Analysis and Conclusion Executive Order 12564, entitled "Drug - Free Federal Workplace," was issued by the President on September 15, 1986. Among the reasons for issuing the Executive Order were the following: The use of illegal drugs, on or off duty, by Federal employees is inconsistent not only with the law-abiding behavior expected of all citizens, but also with the special trust placed in such employees as servants of the public. The use of illegal drugs on or off duty by Federal employees impairs the efficiency of Federal departments and agencies, undermines public confidence in them, and makes it more difficult for other employees who do not use illegal drugs to perform their jobs effectively. The use of illegal drugs, on or off duty, by Federal employees also can pose a serious health and safety threat to members of the public and to other Federal employees. (3 C.F.R. 225 (1987)) Section 3 of the Executive Order directs the heads of Executive agencies to establish mandatory and voluntary drug testing programs for agency employees and applicants. Section 5 of the Executive Order requires agencies to "initiate action to discipline any employee who is found to use illegal drugs" unless the employee takes specified voluntary steps to eliminate his or her illegal drug usage. Section 5(E) of the Executive Order further states: (1) The determination of an agency that an employee uses illegal drugs can be made on the basis of any appropriate evidence, including direct observation, a criminal conviction, administrative inquiry, or the results of an authorized testing program. Positive drugs test results may be rebutted by other evidence that an employee has not used illegal drugs. Clearly, Executive Order 12564 seeks to eliminate use, either on or off duty, of illegal drugs by Federal employees. In furtherance of that objective, the Executive Order requires the disciplining of employees found to be using such drugs. We previously have held that Executive Order 12564 "has the force and effect of law." U.S. Army Armament, Munitions and Chemical Command, 30 FLRA No. 115, slip op at 25. In U.S. Army Armament, Munitions and Chemical Command, we viewed random urine testing for illegal drug use by employees in critical positions as 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, and to prevent disruption of the agency's activities. Proposal 1 in that case required that employees in sensitive positions be directed to submit to urinalysis on the basis of probable cause only. We found that by limiting management's ability to test employees to circumstances where there is probable cause, thereby prohibiting random urine testing, the proposal directly interfered with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. We also determined in that case, based on our holding 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), that the proposal reversed the substantive effect of management's action. Therefore, we found that the proposal excessively interfered with management's right to determine its internal security practices and, consequently was not an appropriate arrangement under section 7106(b)(3). The disputed sentence of Proposal 1 in this case is even more proscriptive than Proposal 1 found nonnegotiable in U.S. Army Armament, Munitions and Chemical Command. This sentence bans any testing of any employee's urine, even when there is probable cause to suspect illegal drug use either on or off duty by an employee in a sensitive position. The disputed sentence of Proposal 1 in this case clearly limits management's ability to test employees for drug use. Consequently, by precluding the Agency from conducting urine testing as a part of its plan to secure or safeguard its personnel and property, the disputed sentence directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. See also National Association of Government Employees, Local R14-9 and U.S. Army, Dugway Proving Ground, Dugway, Utah, 30 FLRA No. 116 (1988). The disputed sentence of Proposal 1 also prohibits the use of polygraph examinations for the purpose of uncovering illegal drug use. As previously noted, Executive Order 12564 states that the use of illegal drugs, on or off duty, by Federal employees "can pose a serious health and safety threat to members of the public and other Federal employees." It is clear from the record that as a part of its plan to safeguard its personnel and property from the potential adverse effects of illegal drug use, the Agency has decided to use polygraph examinations to assist in uncovering illegal drug use by employees. We find that the Agency has established a sufficient link between the use of polygraph examinations and its plan to safeguard personnel and property from the serious health and safety threat from illegal drug use. Therefore, the portion of the disputed sentence of Proposal 1 preventing the Agency from using polygraph examinations to uncover illegal drug usage also directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute. See also American Federation of Government Employees, AFL - CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA No. 137 (1988), where we held that Provision 1, which sought to prevent the agency from administering polygraph examinations as a part of its plan to safeguard personnel and property, violated the agency's right to determine its internal security practices under section 7106(a)(1) and did not constitute a negotiable appropriate arrangement under section 7106(b)(3). In summary, for the foregoing reasons, we find that Proposal 1 is outside the duty to bargain. IV. Order The petition for review of Proposal 1 is dismissed. Issued, Washington, D.C., February 12, 1988 Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY