[ v31 p205 ]
31:0205(23)NG
The decision of the Authority follows:
31 FLRA NO. 23
AKA: 0-NG-1337
31 FLRA 205
Date: 22 FEB 1988
INTERNATIONAL ASSOCIATION OF MACHINISTS
AND AEROSPACE WORKERS, LOCAL LODGE 2424
Union
and
U.S. DEPARTMENT OF THE ARMY
ABERDEEN PROVING GROUND, MARYLAND
Agency
Case No. 0-NG-1337
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) and
concerns the negotiability of nine proposals. 1 The disputed
proposals concern the testing of certain selected categories of
civilian employees for drug abuse.
For the reasons set forth below, we find that Proposals 2
and 3, which provide that drug tests may only be conducted by non
- Government employees employed by non - Government laboratories,
are outside the duty to bargain because those proposals directly
interfere with management's right under section 7106(a)(1) to
determine its internal security practices, and with
management's right under section 7106(a)(2)(B) to contract out
work. We dismiss the union's petition concerning Proposal 5,
which provides for delay in the implementation of the Agency's
drug testing program, as moot. We dismiss the Union's petition
concerning Proposal 6, which conditions Agency action on the
exhaustion of avenues of challenge/appeal, because the Union did
not provide the information necessary to make a determination. We
find that the first sentence of Proposal 8, which delays the
implementation of drug testing until negotiations are completed,
is negotiable because it is consistent with the Agency's
bargaining obligations under the Statute. We dismiss the Union's
petition concerning the second sentence of Proposal 8 because it
does not constitute a proposal for bargaining. We dismiss the
Union's petition concerning Proposal 12(a)(4) because the Union
did not provide the information necessary to make a
determination. We find that the second sentence of Proposal
12(c)(1), which requires the Agency to assign work only to
"qualified" employees, is nonnegotiable because it directly
interferes with management's right under section 7106(a)(2)(B) to
assign work. We find that the remaining portions of Proposal 12
are negotiable procedures under section 7106(b)(2) of the
Statute. We find that Proposal 16, which requires that employees
not be selected for drug testing as a punitive measure, is
negotiable because it requires management to exercise its right
under section 7106(a)(1) to determine its internal security
practices in accordance with Executive Order 12564. We dismiss
the Union's petition concerning Proposal 24, which provides for
no direct observation except in specified circumstances, because
the Union did not provide the information necessary to make a
determination. Finally, we find that Proposal 25, which provides
that the Agency shall only test employees when it has "reasonable
reason" for testing, is outside the duty to bargain because the
proposal directly interferes with management's right under
section 7106(a)(1) to determine its internal security practices.
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 Interim
Change to AR 600-85, which established a drug abuse testing
program for civilian employees in critical jobs.
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 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," (Guidelines)
by the Department of Health 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, to the extent that the
constitutionality of the Army's drug testing program is raised in
this case, we will not consider that issue. 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. Further, as the Union does not contend that any
of the proposals in this case are appropriate arrangements within
the meaning of section 7106(b)(3) of the Statute, we have not
considered that issue with regard to the proposals. We note,
finally, that as of the date of this decision, the Department of
Health and Human Services has not published final regulations in
the Federal Register.
III. Proposal 2
We propose an Independent, non-government testing laboratory
be utilized that guarantees accuracy and accountability in a
chain of custody of individual urine specimens.
A. Positions of the Parties
The Agency asserts that Proposal 2 is nonnegotiable because
it interferes with management's right to determine the methods,
means, or technology of performing its work, within the meaning
of section 7106(b)(1) of the Statute. The Agency also contends
that the proposal is not negotiable because it concerns
techniques used by the Agency in conducting an internal security
investigation and, therefore, conflicts with management's right
to determine its internal security practices under section
7106(a)(1). The Agency contends further that this proposal is
nonnegotiable because the portion that refers to "chain of
custody" conflicts with Appendix H of the Interim Change to AR
600-85, a regulation for which a compelling need exists. The
Agency contends that the proposal does not constitute an
"appropriate arrangement" under section 7106(b)(3) of the
Statute. Finally, certain amici contend that Proposal 2 conflicts
with the Agency's right to contract out work.
The Union contends that the proposal does not conflict with
management's right to assign work and does not interfere with
management's right to choose the methods and means of performing
its work. The Union argues that the proposal protects employees'
rights under Executive Order 12564.
B. Discussion
The Agency has determined that the use of illegal drugs by
employees in critical positions poses a threat to its personnel,
property, and operations. In order to protect against that
threat, the Agency has established a drug testing program to
identify employees in those positions who use drugs. Through
testing, the Agency can ensure that the performance of
employees in critical positions is not affected by drugs and that
potential injury to personnel, damage to property or disruption
of operations resulting from drug use is prevented. An integral
part of the decision to establish a drug testing program is the
decision as to who will do the testing and how that testing will
be done.
Proposal 2 requires the Agency to use non - Government
laboratories which can guarantee the accuracy of the tests
performed on employees' urine specimens and which can guarantee
the chain of custody of those specimens prior to the test. The
proposal would require the Agency to assign the drug testing
function to a non - Government facility. We find that the
decision as to the use of its own laboratories and personnel, or
those of a non - Government testing service, constitutes an
exercise of management's right to determine its internal security
practices. We find, therefore, that to the extent that Proposal 2
prevents management from performing drug tests using its own
personnel and facilities to guarantee the accuracy of drug tests
and to assure the chain of custody prior to testing, it directly
interferes with management's right to determine its internal
security practices under section 7106(a)(1) of the Statute. See
U.S. Army Armament, Munitions and Chemical Command (Proposal 1).
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, 235 (1986),
remanded as to other matters sub nom. National Federation of
Federal Employees, Local 29v. FLRA, No. 86-1308 (D.C. Cir. Mar.
6, 1987), Decision on remand, 27 FLRA 404 (1987).
Further, because Proposal 2 requires the Agency to use non -
Government laboratories to perform drug tests on employee urine
samples, management must contract out for those services. We also
find, therefore, that Proposal 2 directly interferes with
management's right to contract out under section 7106 (a)(2)(B)
of the Statute and is outside the duty to bargain. See U.S. Army
Armament, Munitions ans Chemical Command (Proposal 3). In view of
our conclusion, we do not address the Agency's argument that the
proposal is nonnegotiable because it conflicts with an Agency
regulation for which there is a compelling need.
IV. Proposal 3
We will not agree to an on station, dispensary type field
testing. We insist upon properly certified independent personnel,
such as a hospital or a private testing laboratory certified by
the State Medical examiner.
A. Positions of the Parties
The Agency asserts that Proposal 3: (1) interferes with
management's right to determine the methods, means, or technology
of performing its work within the meaning of section 7106(b)(1);
and (2) interferes with management's right to determine its
internal security practices under section 7106(a)(1). The Agency
also contends that this proposal conflicts with the Agency's
right to assign work under section 7106(a)(2)(B) of the Statute
because the proposal prohibits the assignment of certain duties
to Agency employees. Finally, certain amici contend that Proposal
3 conflicts with the Agency's right to contract out work.
The Union contends that the proposal does not conflict with
management's right to assign work and does not interfere with
management's right to choose the methods and means of performing
its work. The Union argues that the proposal protects employees'
rights under Executive Order 12564, and that testing should be
done by certified non - Government personnel in certified
laboratories in order to protect employees from the errors
experienced in the past when testing was done by Agency
personnel.
B. Discussion
Like Proposal 2, Proposal 3 requires the Agency to use non -
Government personnel and facilities--hospitals or laboratories
which are "certified by the State Medical examiner" and which
employ "properly certified" personnel--to perform drug tests on
employee urine samples. The proposal would therefore preclude the
Agency from using its own facilities and personnel to conduct
those tests and would require it to contract out for drug testing
services. Consistent with our decision as to Proposal 2,
therefore, we find that Proposal 3 directly interferes with
management's right to determine its internal security practices
under section 7106(a)(1) and with its right to contract out under
section 7106(a)(2)(B) of the Statute.
The Union did not claim that Proposal 3 is an appropriate
arrangement within the meaning of section 7106(b) (3) and we will
not consider that issue here. But see U.S. Army Armament,
Munitions and Chemical Command (Proposal 3), in which we found
that a proposal requiring management to use "qualified" personnel
to perform drug tests was an "appropriate arrangement" within the
meaning of section 7106(b)(3) of the Statute.
V. Proposal 5
We propose this Instruction be phased in gradually and on a
"trial basis" for six (6) months and any problem areas be subject
to continued negotiations after a joint critique of the problems
associated with testing.
A. Positions of the Parties
The Agency contends that this proposal conflicts with its
right under section 7106(a)(1) to determine its internal security
practices because it would delay the implementation of the drug
testing program and would affect the safety and security of the
installation. The Agency argues that because its mission involves
the national defense, any delay in implementing the drug program
would restrict its ability to accomplish its mission.
Additionally, the Agency asserts that the Union proposal would
require negotiations on all aspects of drug testing, including
aspects which are covered by reserved management's rights under
section 7106(a) of the Statute. Finally, the Agency argues that
the proposal is not an appropriate arrangement because the
proposal would excessively interfere with its right to develop
internal security practices and with its right to discipline by
prohibiting the removal of confirmed drug users from critical
positions.
The Union contends that the Agency has agreed to similar
proposals with other unions. The Union does not, however, cite
any specific contractual provisions.
B. Discussion
The drug testing program which is the subject of the
proposal has been in effect for a period longer than the 6-month
"trial" period required by the proposal. Therefore, the dispute
has been rendered moot and, in our view, a bargaining order would
serve no purpose. For that reason we dismiss the Union's petition
concerning Proposal 5. See, for example, National Federation of
Federal Employees, Local 1745 and Veterans Administration, 25
FLRA 1039, 1053-54 (1987).
VI. Proposal 6
We propose that no adverse impact be experienced by Unit
employees for positive tests until the employees had (sic) an
opportunity to challenge/appeal the validity or accuracy
of the test and the exhaustion of the challenge/appeal avenues.
A. Positions of the Parties
The Agency contends that Proposal 6 directly interferes with
management's right to determine its internal security practices.
It argues that the proposal prohibits implementation of any
aspect of the program until avenues of appeal have been
exhausted. The Agency contends that the proposal prevents it from
"acting at all" to establish and carry out essential internal
security practices. The Agency contends that the proposal
prevents it from removing an employee who tests positive until
all of his/her challenges and appeals have been exhausted,
including appeals through the courts. The Agency argues that a
confirmed drug user would remain in a critical position and,
thereby, would endanger national security, property and
personnel. Furthermore, the Agency argues that the proposal
conflicts with an Agency regulation for which a compelling need
exists, Interim Change to AR 600-85, Par. 5-14e(4). That
regulation states that "(n)othing in this provision precludes the
use of a confirmed positive urinalysis result in an authorized
adverse action . . . ." The Agency argues that the proposal,
therefore, directly interferes with management's right under
section 7106(a)(2)(A) of the Statute to discipline employees.
The Union contends that Proposal 6 should be found
negotiable because it embodies the statutory right of employees
to a union representative during an investigatory interview which
the employee believes may result in discipline. Union Petition
for Review at 5. The Union further argues that Proposal 6 is
consistent with Executive Order 12564.
B. Discussion
Proposal 6 prevents the Agency from taking any adverse
actions against unit employees who have tested positive until
those employees have exhausted the "challenge/appeal avenues." It
is unclear from the record what the term "challenge/appeal
avenues" is intended to mean and how it would affect management's
right to discipline.
The proposal is susceptible to an interpretation whereby it
would stay disciplinary action pending the completion of the
grievance procedure or of an applicable statutory appeal
procedure. The Authority has found a proposal to be negotiable
which would have stayed any action resulting from a
reduction-in-force until completion of the contractual grievance
procedure, including arbitration, or until final action on an
appeal before the Merit Systems Protection Board. See, for
example, Federal Union of Scientists and Engineers, National
Association of Government Employees, Local R1-144 SEIU, AFL - CIO
and U.S. Department of the Navy, Naval Underwater Systems Center,
25 FLRA 964, 966 (1987).
The proposal is also susceptible to an interpretation
whereby it would stay disciplinary action pending court review of
challenges to actions taken pursuant to the drug testing program.
We found Proposal 5 in American Federation of Government
Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31
FLRA No. 10 (1988), slip op. at 13-15, to be nonnegotiable
because it imposed a stay of Agency action "until all lawsuits
filed by the (u)nion or bargaining unit employees" concerning the
drug testing program had been resolved. We concluded that
implementation of the drug testing program could be prevented by
the filing of lawsuits by the union or bargaining unit employees.
We concluded that the proposal left implementation of the drug
testing program in the control of parties with an interest in
delaying that program and that it would prevent the agency from
exercising its rights under section 7106(a)(1).
In Naval Underwater Systems Center and Tooele Army Depot,
the Authority was able to decide the negotiability of the
proposals because it was able to assess the effect of the
proposals on management's rights. Without a definition or some
further explanation by the Union of the broad term
"challenge/appeal avenues" as used in Proposal 6, we are unable
to determine the nature and extent of the restriction placed on
management's right to discipline unit employees under
7106(a)(2)(A) of the Statute. In the absence of a clear
indication of the parameters of Proposal 6 and its resulting
effects on management rights, we are unable to determine whether
the proposal is negotiable. We are, therefore, dismissing the
petition for review as to Proposal 6 because the Union has not
created a record on which we can determine the negotiability of
the proposal. See National Federation of Federal Employees, Local
1437 and U.S. Army Armament Research, Development, and
Engineering Center, Dover, New Jersey, 31 FLRA No. 16 (1988),
slip op. at 15-16 and U.S. Army Armament Munitions and Chemical
Command, slip op. at 31-32.
VII. Proposal 8
We propose to delay the implementation of this Instruction
until satisfactory resolution of negotiations by utilization of
FMCS/FSIP Services. If Agency implements prior to conclusion, we
will file an Unfair Labor Practice Charge with FLRA.
A. Positions of the Parties
The Agency contends that this proposal is not a proposal to
negotiate, but is no more than a statement of the Union's intent
to file an unfair labor practice if it is dissatisfied with
overall negotiations about the drug testing program. The Agency
points out that the Union has already filed just such an unfair
labor practice charge, and argues that the Authority should,
thus, dismiss this proposal as moot.
The Union argues only that, as the Authority's Regulations
allow it to file unfair labor practices with regard to the
failure of management to fulfill its duty to negotiate,
management by refusing to negotiate as to this proposal seeks to
*put itself above the reach of the law.* Union Petition for
Review at 7.
B. Discussion
Proposal 8 would delay implementation of the drug testing
program pending completion of bargaining, including the
invocation of the processes of the Federal Mediation and
Conciliation Service (FMCS) and the Federal Service Impasses
Panel (FSIP). We find that the proposal is a restatement of the
Agency's duty under the Statute to meet its bargaining
obligations concerning changes in conditions of employement
pending the completion of bargaining and would not prevent the
Agency from exercising its rights to implement changes under the
Statute. For example, the proposal would not prevent the Agency
from implementing changes where those changes are consistent with
the necessary functioning of the Agency or once the matters
before FMCS and/or FSIP are resolved. See Overseas Education
Association, Inc. and Department of Defense Dependents Schools,
29 FLRA 734 (1987) (proposal 3), petition for review filed as to
other matters sub nom. Overseas Education Association, Inc. v
FLRA, No. 87-1576 (D.C. Cir. Oct. 14, 1987), in which we found
negotiable a proposal providing that management would
not make changes in conditions of employment during impasse
because the proposal reflected the agency's rights and
obligations under the Statute, including the right to make
changes consistent with the necessary functioning of the agency.
Accordingly, consistent with our decision in Overseas Education
Association, we find that the first sentence of Proposal 8 is
within the duty to bargain.
We find that the second sentence of Proposal 8 is a
statement of the Union's intent to file an unfair labor practice
charge. Since the second sentence is not a proposal, we will
dismiss the Union's petition for review as to that sentence.
VIII. Proposal 12
Section 12(a)
(2) The urine specimens shall be collected and maintained in
accordance with AR 600-85, change 11. (This first sentence is not
in dispute.) The specimens will either be tested that day or be
refrigerated until assayed. If they are refrigerated, the
specimen will be brought to room temperature and visually
inspected for the presence of (pre)cipitated salts prior to being
assayed. If salts are present, the specimen will not be tested
and a new specimen will be obtained.
(4) The standards used shall be traceable to a National
Bureau of Standards (NBS) standard. The standards and reagents
used shall be maintained in accordance with the manufacturers
instructions.
Section 12(b)
Test Set Up: See the manufacturers manual for this
information (who will be conducting tests).
Section 12(c)
(c) Procedures:
(1) Follow the manufacturers instructions for the systems
used. Operators shall be trained in the use of the equipment and
in good laboratory practices by qualified instructors.
(2) The spectrophotometer wavelength shall be calibrated
daily using a calibrating standard.
(3) The spectrophotometer transmittance shall be adjusted
every 10% hours of instrument operation using the test standards.
Expand to include warm upper manufacturers directions including
everytime it is turned on.
(4) In the event of a positive test the spectrophotometer
transmittance shall be adjusted as indicated above and a new
sample of the specimen will be re-tested.
(5) To reduce the chances of cross contamination of
specimens:
(a) The urine specimens will be individually presented to
the (pipets).
(b) The tip of the (pipets) will either be changed after
each test or be flushed using at least a 60 rinse ratio with the
exterior of the tip being wiped clean.
(6) The operator will visually inspect the cells for
cleanliness. Debris and fingerprints shall be removed from the
cells using tissue wetted in solvent.
Section 12(d)
(d) Safety considerations:
(1) The operator will use standard medical laboratory
practices to protect themselves from infection.
(2) All (RIA) samples and contaminated solid waste must be
placed in containers and disposed of as hazardous waste materials
per APGR 200-2.
A. Positions of the Parties
Proposal 12, entitled "Procedure," contains several
sections, referred to as separate proposals. Proposals 12(a)(2)
and (4), and 12(b), (c), and (d) require the use of specific
techniques in conducting drug testing. The Agency contends that the proposals conflict with the Agency's right to
determine: (1) its internal security practices under section
7106(a)(1); and (2) the technology, methods, and means of
performing its work under section 7106(b)(1) of the Statute.
Additionally, certain amici contend that the proposals conflict
with the HHS Guidelines, a Government-wide regulation.
The Union contends that these proposals do not infringe on
the Agency's right to determine the methods or technology of
performing the Agency's work, and do not infringe on the Agency's
right to determine its internal security practices. The Union
argues that the proposals simply specify procedures which are
intended to safeguard employees' rights, and maintains that the
proposals are consistent with the HHS Guidelines and with
Executive Order 12564.
B. Discussion
Section 12(a)(2)
Section 12(a)(2) requires that once urine specimens have
been collected, the specimens will be refrigerated if not tested
on the day collected. The proposal provides that if refrigerated,
certain procedures will be followed to determine the presence of
precipitated salts. It further provides that when such salts are
present, a new specimen will be obtained.
We find that Section 12(a)(2) does not interfere with the
Agency's right under section 7106(a)(1) of the Statute to
determine its internal security practices. No argument is made or
evidence presented which shows that requiring specimens to be
refrigerated if not tested, or requiring that new specimens will
be obtained where precipitated salts are present would preclude
the Agency from taking any and all necessary steps required by
its drug testing program. Rather, Section 12(a)(2) sets forth
procedures which the Agency must follow in administering the drug
tests.
We, therefore, find that in the absence of a showing that
this proposal would prevent management from using the drug
testing techniques which it has adopted or would compromise
management's ability to properly test employee urine samples, the
proposal does not violate management's right to determine its
internal security practices; under section 7106(a)(1) of the
Statute. U.S. Army Armament, Munitions and Chemical Command
(Proposals 8 and 9).
We also find that Section 12(a)(2) does not conflict with
the Agency's right under section 7106(b)(1) of the Statute to
determine the methods, means, or technology of performing its
work. That is, even assuming that drug testing constitutes the
"work" of the Agency, the proposal does not in any manner affect
management's decision as to how the tests are to be performed,
the "instrumentalities" which it will use in performing drug
tests, or the technology employed in conducting the tests. See
U.S. Army Armament, Munitions and Chemical Command, slip op. at
27-28.
The Agency has not shown that Section 12(a)(2) would require
any change in the way in which the Agency would perform drug
testing. The proposal does not prescribe the method or technology
to be used by the Agency in administering its drug testing
program. That is, the proposal does not prescribe how the test
itself should be done, nor does it require the use of particular
equipment for testing. Rather, the proposal establishes a
procedure which management will follow prior to the performance
of the tests in order to assure the accuracy of the testing
results. We therefore find that Section 12(a)(2) does not
interfere with the Agency's right to determine the technology,
methods or means of performing its work under section 7106(b)(1),
but constitutes a negotiable procedure under section 7106(b)(2)
of the Statute. See U.S. Army Armament, Munitions and Chemical
Command (Proposals 8 and 9).
Section 12(a)(4)
The first sentence of this proposal requires the Agency, in
conducting drug tests, to use standards which are based on a
"National Bureau of Standards (NBS) standard." The second
sentence of Section 12(a)(4) requires the Agency to maintain the
standards and reagents it uses in performing drug tests in
accordance with manufacturers' instructions. There is no evidence
in the record as to the nature of the "standards" referred to in
the proposal. While those "standards" may simply concern the
maintenance of the equipment land materials used to perform the
tests, and thus may be procedural in nature, there is nothing in
the record to support that interpretation.
On the other hand, it is possible that the "standards"
referred to in the proposal concern the actual performance of the
tests, that is, prescribe the manner in which the tests would be
done. Interpreted in this manner, the proposals would restrict
management's ability to determine the methods and equipment by
which it will conduct drug tests. See U.S. Army
Armament, Munitions and Chemical Command (Proposal 2). Because we
are unable to determine the meaning of the proposal, we are
unable to assess its negotiability. Accordingly, we will dismiss
the petition for review as to Section 12(a)(4). See U.S. Army
Armament, Munitions and Chemical Command (Proposal 10).
Section 12 (b)
This proposal requires the Agency to refer to the
manufacturer's manual for information as to setting up tests. The
proposal does not limit management's ability to perform the
tests. It only concerns the steps management will follow in
preparing to conduct the tests. Moreover, the proposal does not
require the Agency to adopt any specific procedure from the
information in the manufacturer's manual and it does not require
that the Agency change any of its own procedures or procedures
that might be prescribed by an outside authority. We find,
therefore, that this proposal constitutes a negotiable procedure
under section 7106(b)(2) of the Statute.
Section 12(c)(1)
The first sentence of this proposal requires the Agency to
follow the manufacturer's instructions for using and maintaining
drug testing materials and equipment. We find, consistent with
our disposition of Section 12(b), that this sentence constitutes
a negotiable procedure under section 7106(b)(2) of the Statute.
The first sentence of the proposal, like Section 12(b), merely
requires management to follow the procedures set forth in the
manufacturer's manual when using test materials and equipment.
The second sentence of Section 12(c)(1) requires that
employees operating drug testing equipment shall be trained by
qualified instructors. The effect of this second sentence is to
require that the Agency assign work only to qualified employees.
We find, therefore, that the second sentence of the proposal
directly interferes with management's right to assign work under
section 7106(a)(2)(B) of the Statute. See U.S. Armament,
Munitions and Chemical Command (Proposal 3).
The Union did not claim that Section 12(c)(1) is an
appropriate arrangement within the meaning of section 7106(b)(3)
and we will not consider that issue here. But see U.S. Army
Armament, Munitions and Chemical Command (Proposal 3), in which
we found that a proposal requiring management to use
"qualified" personnel to perform drug tests was an "appropriate
arrangement" within the meaning of section 7106(b)(3) of the
Statute.
Section 12(c)(2) and (3)
These portions of Section 12(c) provide for the frequency
and manner in which spectrophotometers shall be calibrated or
adjusted. The provisions do not require the use of
spectrophotometers, but require only that when spectrophotometers
are used they will be calibrated or adjusted in a certain manner
and frequency. We find that these portions of the proposal are
negotiable procedures under section 7106(b)(2) of the Statute,
which management will follow in using and maintaining drug
testing equipment. We note that similar procedures are outlined
in Appendix B of the proposed HHS Guidelines.
Section 12(c)(4)
This portion of Section 12(c) provides that when a positive
test results from a test conducted in accordance with the
procedures set forth in Section 12(c)(2) and (3), (a) new sample
from the same specimen will be re-tested. By requiring a second
test on a portion of the same sample, Section 12(c)(4) has the
same effect as Proposals 8 and 9 in U.S. Army Armament, Munitions
and Chemical Command, which provided for a second test on a
retained portion of an employee's urine sample. We found those
proposals to be negotiable procedures under section 7106(b)(2).
Consistent with our holding in that case, we also find Section
12(b)(4) to constitute a negotiable procedure under section
7106(b)(2) of the Statute and to be within the duty to bargain.
Section 12(c)(5) and (6)
These portions of Section 12(c) provide that urine specimens
will be individually tested and specify when and in what manner
certain of the testing equipment will be cleaned. That is, these
portions of the proposal prescribe certain procedural steps to be
followed in conducting drug tests so as to reduce the possibility
of cross-contamination of samples. The proposed procedures do not
interfere with the conduct of drug testing, and do not require
the use of particular equipment, but only require that when
certain equipment is used, it will be maintained in a manner
designed to reduce the chances of cross-contamination. We find
that these portions of Section 12(c) are also negotiable
procedures under section 7106(b)(2) of the Statute and are within
the duty to bargain.
Section 12(d)
This proposal provides that operators of drug testing
equipment will use standard practices to protect themselves from
infection. Further, the proposal provides that drug test samples
and certain contaminated waste be disposed of in keeping with
Agency regulations. We find nothing in this proposal that
conflicts with the Agency's right to determine its internal
security practices under section 7106(a)(1), or to determine the
technology, methods, and means of performing its work. We
therefore find that this proposal constitutes a negotiable
procedure under section 7106(b)(2) of the Statute.
IX. Proposal 16
Under no circumstance will an employee be subjected to
urinalysis testing as a punitive measure.
A. Positions of the Parties
The Agency states that AR 600-85, par. 5-14e(1) requires it
to test employees holding positions designated as critical for
illegal drug use. The Agency contends that Proposal 16 would
directly interfere with management's reserved right under section
7106(a)(1) to determine its internal security practices. The
Agency claims that Proposal 16 would enable an employee who tests
positive to grieve his or her selection for the test, and,
thereby, permit an arbitrator to overturn the decision to test.
Agency Statement of Position at 10. In the Agency's view,
allowing an arbitrator to substitute his or her judgment for that
of management in determining which employees may be selected for
testing would negate management's right to determine its internal
security practices. The Agency also asserts that by subjecting
management's determination to arbitral review, the proposal,
would excessively interfere with its right to determine its
internal security practices. Therefore, the Agency contends that
Proposal 16 does not constitute an appropriate arrangement under
section 7106(b)(3) of the Statute. Agency Statement of Position
at 18.
The Union contends that Proposal 16 is negotiable because it
is "covered" by Executive Order 12564, Section 5. Union Petition
for Review at 13.
B. Discussion
We conclude that Proposal 16 is within the duty to bargain
because it requires management to exercise its right to determine
its internal security practices in accordance with law.
In U.S. Army Armament Research, Development and Engineering
Center, we concluded that Proposal 4, a proposal which also
provided that no employee will be subjected to urinalysis as a
punitive measure, was within the duty to bargain. We found that
the proposal required only that the selection of employees for
drug testing be in accordance with law. We rejected the Agency's
argument that the proposal was nonnegotiable because it subjected
the exercise of a management right to review by an arbitrator. We
concluded that a proposal providing for an arbitrator to examine
the exercise of a management right in order to determine whether
it complies with applicable law is within the duty to bargain. We
conclude, consistent with our decision in U.S. Army Armament
Research, Development and Engineering Center, that Proposal 16
does not interfere with management's right under section
7106(a)(1) to determine its internal security practices. Rather,
Proposal 16 requires that selection of employees for drug testing
be in accordance with law and is within the duty to bargain.
X. Proposal 24
Section 24. Employees will not be directly observed while
they are providing a sample unless there is just cause to believe
that the employee has tampered, adulterated, or otherwise has
attempted to affect the test results. in this context, the
parties agree that such attempts at deception may be just cause
for disciplinary action.
(Only the underlined portion is in dispute.)
A. Positions of the Parties
The Agency contends that Proposal 24 conflicts with
management's right to determine its internal security practices
under section 7106(a)(1) of the Statute. The Agency asserts that
the proposal would interfere with its discretion to determine
when it is necessary to observe an employee while the employee is
providing a urine specimen. The Agency states that even
if the proposal is consistent with Executive Order 12564 and its
regulations, it is nonnegotiable because the determination
concerning observation of an employee is an integral part of
determining its internal security practices under section
7106(a)(1). Finally, the Agency notes that section 4 of Executive
Order 12564 requires that "(p)rocedures for providing urine
specimens must allow individual privacy, unless the agency has
reason to believe that a particular individual may alter or
substitute the specimen to be provided." The Agency states that
it has amended its regulation to conform to this requirement.
Therefore, the Agency contends that the proposal is moot and
should be dismissed by the Authority.
Citing section 4 of Executive Order 12564, the Union
contends that the proposal is negotiable. Union Petition for
Review at 16.
B. Discussion
Proposal 24 would prevent the Agency from assigning an
observer to monitor the collection of a urine sample unless it
has just cause to believe that an employee will alter the test
sample. This proposal is identical to Proposal 13, which the
Authority in U.S. Army Armament Research, Development, and
Engineering Center dismissed because the union had not provided
sufficient information for us to determine the negotiability of
the proposal. The union did not define "just cause." Therefore,
we found that in the absence of evidence as to the union's
intent, we would be unable to determine whether the proposal was
inconsistent with section 4 of Executive Order 12564, which
provides for an observer if there is "reason to believe" an
employee will tamper with the urine sample.
Like the union in U.S. Army Armament Research, Development,
and Engineering Center, the Union here does not define the term
"just cause" or provide any evidence that explains the intent of
the proposal. Although the Union cites section 4 of Executive
Order 12564, it does not provide any information as to how its
proposal should be interpreted in connection with this section.
We therefore find that we are unable to determine whether the
proposal is consistent with the standard set forth in Executive
Order 12564. Accordingly, we dismiss the petition for review as
to Proposal 24.
XI. Proposal 25
Section 25. The employer shall only test bargaining unit
employees under the drug testing program where the employer has
reasonable reason for testing of the employee.
A. Positions of the Parties
The Agency contends that this proposal directly interferes
with its right to determine its internal security practices. It
contends that the proposal conflicts with Executive Order 12564,
section 3(c), which provides for random testing.
The Agency also contends that the proposal conflicts with an
agency regulation for which a compelling need exists. It states
that the Interim Change to AR 600-85, paragraph 5-14e(1)(b)
establishes testing "(p)eriodically after appointment or
selection on a random basis"; that paragraph 5-14e(1)(c) permits
testing "(w)hen there is probable cause"; and that paragraph
5-14e(1)(d) permits testing in conjunction with an accident or
safety investigation. The Agency argues that the proposal would
not permit testing on a random basis and would conflict with the
Army regulation. The Agency also argues that the regulation is
essential to the functioning of the Department of the Army in an
effective and efficient manner and that it can perform its
mission only where it retains the right to assure that civilian
employees in critical positions are drug free.
Finally, the Agency argues that the proposal is not an
appropriate arrangement within the meaning of section 7106(b)(3).
The Agency asserts that the proposal abrogates management's right
to determine its internal security. The Agency argues that any
benefit the employees attain from the Union's proposal is not
sufficient to override the negative effect of the proposal on its
internal security.
The Union states that section 4 of Executive Order 12564
makes Proposal 25 negotiable.
B. Discussion
Proposal 25 would enable the Agency to test employees for
use of illegal drugs only on the basis of a "reasonable reason."
The proposal would, thereby, 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 found that random testing of
employees in critical positions was a part of the Agency's plan
to secure its property, personnel, and operations against
internal and external risks, to prevent improper or unauthorized
disclosure of information, and to prevent the disruption of the
Agency's activities. We concluded that by precluding random
testing, the proposal directly interfered with management's right
to determine its internal security practices under section
7106(a)(1) of the Statute.
Because the proposal is to the same effect as Proposal 1 in
U.S. Army Armament, Munitions and Chemical Command, we conclude
that the proposal is outside the duty to bargain. In that case,
we found that the proposal, which provided for the drug testing
of employees only on the basis of probable cause or reasonable
suspicion, was nonnegotiable because it precluded random drug
testing. The Union did not contend that the proposal in this case
is an appropriate arrangement within the meaning of section
7106(b)(3) of the Statute and we have not considered that issue.
See U.S. Army Armament, Munitions and Chemical Command, slip op.
at 12-13, for a discussion of the applicability of section
7106(b)(3) to a similar proposal. In light of our conclusion, we
do not address the Agency's argument that the proposal is
nonnegotiable because it conflicts with an Agency regulation for
which there is a compelling need.
XII. Order
The Agency must upon request, or as otherwise agreed to by
the parties, bargain on the first sentence of Proposal 8,
Proposals 12(a)(2), 12(b), the first sentence of 12(c)(1),
12(c)(2)-(6), 12(d), and 16. 2 The petition for review as to
Proposals 2, 3, 5, 6, the second sentence of 8, 12(a)(4), the
second sentence of 12(c)(1), 24, and 25 is dismissed. Issued,
Washington, D.C. February 22, 1988
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote 1 The negotiability of the proposals is properly
before us, and we deny the Union's request that this entire
matter be remanded to the Federal Service Impasses Panel. The
Union submitted 34 proposals for Agency consideration. The
Agency in its declaration of nonnegotiability agreed that
Proposals 1, 7, 12(a)(3), 13, 17 (except the last sentence),
19, 22, 23, 27 and 34 are negotiable. The Agency in its
response to the Union's petition for review withdrew its
allegation of nonnegotiability as to Proposals 15 and 32. The
Union has withdrawn Proposals 4, 9, 10, 11, 12(a)(1), 14, 17
(the last sentence), 18, 20, 21, 26, 28, 29, 30, 31, and 33. The
above proposals will not be considered further. Remaining in
dispute are Proposals 2; 3; 5; 6; 8; 12(a)(2) and (4); 12(b),
(c) and (d); 16; 24; and 25.
Footnote 2 In finding these proposals negotiable, we make no
judgment as to their merits.