31:0070(12)NG - Fort Bragg Association of Educators, NEA and Army, Fort Bragg Schools -- 1988 FLRAdec NG

 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