[ v32 p269 ]
32:0269(43)NG
The decision of the Authority follows:
32 FLRA No. 43
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
INTERNATIONAL ORGANIZATION OF
MASTERS, MATES AND PILOTS
PANAMA CANAL PILOTS BRANCH
Union
and
PANAMA CANAL COMMISSION
Agency
Case No. 0-NG-1488
I. Statement of the Case
This case is before the Authority because of a negotiability petition filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).
For reasons explained below, only 3 of the 12 proposals appealed to the Authority are properly before us for consideration. As to Proposal 1, we find that: (1) the second sentence, which provides that employees subject to drug testing who test positive on the initial sample will have the option of having the second sample tested, is nonnegotiable under section 7117(a)(1) because it restricts the Agency's right to confirm the initial positive sample as required by Executive Order 12564; and (2) the third sentence, which provides for the second or confirmatory sample to be tested at a mutually agreeable laboratory, is nonnegotiable because it restricts the Agency's right under section 7106(a)(2)(B) to contract out.
Proposal 7, which prescribes the criteria governing management's decision to require a drug test, is nonnegotiable because it violates management's right under section 7106(a)(1) to determine its internal security practices. Finally, as to Proposal 8, we find that: (1) the first two sentences, which require the suspension of discipline for employees enrolled in a drug rehabilitation program, are nonnegotiable because they violate management's right under section 7106(a)(2)(A) to discipline employees; and (2) the last sentence is a negotiable procedure.
II. Background
The disputed proposals in this case concern drug testing. Because we had already issued several decisions concerning drug testing proposals at the time the petition for review in this case was filed with the Authority, we directed the parties by Order dated March 2, 1988, to review those decisions and consider their applicability to the proposals in dispute. The Union subsequently withdrew Proposals 4, 5 and 11. Union Supplemental Response at 2-5. Accordingly, those proposals are no longer before us for review.
The Union also modified Proposals 2, 3, 6, 9, 10 and 12. Union Supplemental Response at 2-5. In our opinion, the modifications change the meaning of the proposals. We stated in the Order of March 2 that the Union may submit modified proposals to the Agency. However, the record does not indicate that the Union requested an Agency allegation of nonnegotiability concerning the modified proposals; nor has the Agency declared the modified proposals to be nonnegotiable. For this reason, the petition for review is dismissed as to these proposals without prejudice to the Union's refiling at a later date should the Agency declare the modified proposals to be nonnegotiable. See American Federation of Government Employees, AFL-CIO, Local 2052 and Department of Justice, Bureau of Prisons, Federal Correctional Institution, Petersburg, Virginia, 31 FLRA 37, 39-40 (1988), in which we also dismissed without prejudice a modified proposal.
III. Proposal 1
SECTION 2. In the event any blood or urine sample is requested or required, two such samples shall be taken more or less simultaneously. One sample will be forwarded for testing and the other sample shall be sealed in a tamperproof container and safeguarded at a medical facility. In the event that the sample forwarded for testing should test positive, the employee will have the option of testing the second sample. Such testing of the second sample shall be conducted at a laboratory mutually agreeable to the employee and the agency. The purpose of this provision is to safeguard innocent employees from the consequences of any sort of errors in the testing laboratory.
{Only the underlined portion of Proposal 1 is in dispute.}
A. Positions of the Parties
The Agency contends that the second sentence of Proposal 1 is outside the duty to bargain because it interferes with management's right to determine its internal security practices by making the conduct of a confirmatory test contingent on the employee's option for such a test. The Agency contends that the second sentence is distinguishable from proposals which gave employees the option of having a second sample tested and which were previously found to be negotiable by the Authority. The Agency maintains that those proposals were found to be negotiable by the Authority because they did not preclude confirmatory testing of the initial sample. The Agency argues that the second sentence of the proposal is nonnegotiable because it is inconsistent with Section 5(c) of Executive Order 12564. The Agency contends that the third sentence of the proposal is nonnegotiable because it requires that the test be conducted at a laboratory which is mutually agreeable to the employee and the Agency and, therefore, it directly interferes with management's right under section 7106(a)(2)(B) to contract out.
The Union concedes that the intention of the second sentence is to give the employee the option of having a confirmatory test performed. Petition for review at 2. However, the Union views the proposal to be negotiable based on the Authority's lead drug testing case, 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 1046 (1988), petition for review filed sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. Mar. 28, 1988).
B. Discussion
We conclude that the disputed portions of this proposal are outside the duty to bargain.
The second sentence of Proposal 1 provides employees who test positive on the first sample with the option not to test the second sample. Executive Order 12564 requires that employees who test positive for drug use must be disciplined. It also requires that prior to imposing discipline for drug use, initial positive drug tests must be confirmed by a further test of the initial sample. See U.S. Army Armament, Munitions and Chemical Command, (Proposals 4 through 7). Because the second sentence makes the confirmatory test voluntary, it is inconsistent with the requirement of the Executive Order for mandatory confirmation of an initial positive test. Id.
We also find that this proposal is distinguishable from proposals found negotiable in, for example, National Federation of Federal Employees, Local 1437 and U.S. Army Armament Research, Development and Engineering Center, Dover, New Jersey, 31 FLRA 101 (1988) (Proposal 10), petition for review filed sub nom. United States Army Armament Research, Development and Engineering Center, Dover, New Jersey v. FLRA, No. 88-1289 (D.C. Cir. Apr. 13, 1988). Although the proposal in that case gave employees the option of having an additional sample tested, the proposal did not preclude confirmatory testing of the second, retained portion of the initial sample. Rather, the proposal simply required that a portion of the second or retained sample be set aside to give the employee the option of an additional test sample should the confirmatory test also result in a positive finding of drug use. That proposal was negotiable because it did not prevent the agency from confirming the initial positive test. As indicated above, the second sentence of Proposal 1 provides employees with an option to prevent the Agency from conducting the confirmatory test.
While this case was pending before the Authority, the Department of Health and Human Services (HHS), pursuant to Executive Order 12564 and Pub. L. 100-71, issued its Mandatory Guidelines for Federal Workplace Drug Testing Programs. 53 Fed. Reg. 11970 (April 11, 1988). Neither party addressed the applicability of those final guidelines to the negotiability of the proposals in this case. We note, however, as to the second sentence of Proposal 1, that sections 2.4(f)(1) and (g)(2) of the HHS Guidelines require the confirmation of all specimens reported as positive on the initial test before any result is reported to an agency's Medical Review Officer. The employee option for a confirmatory test appears, therefore, to be inconsistent with the HHS Guidelines.
The third sentence of Proposal 1 would make management's choice of a laboratory to conduct the confirmatory test contingent on employee agreement to the use of that laboratory. Management's decision as to which laboratory to use for the conduct of drug tests involves the exercise of its right to contract out under section 7106(a)(2)(B). Management cannot be required to contract with specific laboratories for the performance of drug tests. See International Association of Machinists and Aerospace Workers, Local Lodge 2424 and U.S. Department of the Army, Aberdeen Proving Ground, Maryland, 31 FLRA 205, 208-09 (1988) (Proposal 2), petition for review filed sub nom. U.S. Department of the Army, Aberdeen Proving Ground, Maryland v. FLRA, No. 88-1311 (D.C. Cir. Apr. 21, 1988). Moreover, management's exercise of its rights under section 7106 cannot be contingent on the decision of employees. See American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 876-77 (1986) (Proposal 4). Because the third sentence of Proposal 1 would subject management's decision to contract out its drug testing program to an employee's agreement with its choice, it 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.
IV. Proposal 7
SECTION 10. A determination of diminished control and judgment may be based only on observations made during periods when the subject employee is expected to perform his duties.
A. Positions of the Parties
The Agency contends that Proposal 7 restricts management's right under section 7106(a)(1) to determine its internal security practices. The Agency argues that the proposal limits management's ability to make determinations of diminished control and judgment to those situations where the employee is actually performing piloting duties. The Agency also argues that the proposal is inconsistent with Executive Order 12564 because it precludes management from requiring drug tests either on a random basis or from determining probable cause on the basis of observation during those periods of duty when the employee is not expected to perform his piloting responsibilities.
The Union claims that an employee's actions during the time the employee is on duty but has no piloting responsibilities should not be considered in assessing "diminished control" and "judgment." The Union argues that a pilot may have 2 or more hours of "duty" time either sitting at a pilot station awaiting transportation or returning to the other side of the isthmus during which he has no piloting responsibilities. The Union argues that determinations concerning "diminished control" or "judgment" should not be made during those periods.
B. Discussion
We conclude that Proposal 7 is outside the duty to bargain because it directly interferes with management's right to determine its internal security practices.
Proposal 7 would limit the grounds on which management could base an inference that an employee's judgment is impaired to that obtained from direct observation of the employee while performing piloting duties. Because a determination that an employee's judgment is impaired may provide the basis for requiring the employee to undergo testing for use of illegal drugs, a limitation on the grounds which could be used to support that determination would also restrict the decision to require a drug test. Proposal 7, therefore, establishes a standard for determining what are sufficient grounds to require a drug test.
The decision to require employees to undergo testing for use of illegal drugs constitutes an exercise of management's right to determine its internal security practices under section 7106(a)(1). See Proposal 1 in U.S. Army Armament, Munitions and Chemical Command. Proposals which establish criteria governing management's decision to require an employee to be tested interfere with the exercise of that right. For example, a proposal prescribing that employees will only be subjected to testing on the basis of probable cause is a nonnegotiable substantive limitation on the exercise of management's rights. Id.
Because Proposal 7, like the probable cause standard in U.S. Army Armament, Munitions and Chemical Command, limits the grounds for testing, we find that it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) and is outside the duty to bargain. See also Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 31 FLRA 70, 71-74 (1988) (Proposal 1) (proposal barring drug testing even when there is probable cause to suspect illegal drug use either on or off duty interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute).
V. Proposal 8
SECTION 11. When illegal drug use results in an act or omission which is cause for discipline (including adverse action), enrollment in a drug rehabilitation program will result in the automatic suspension of such discipline. Successful completion of the rehabilitation program will result in the dropping of all charges. Failure to complete a rehabilitation program may result in renewal of the suspended charges, but may not be a bar to reenrollment at a future date.
A. Positions of the Parties
The Agency argues that Proposal 8 conflicts with its right to discipline employees because it prevents any discipline against employees who have completed a drug rehabilitation program. Additionally, the Agency contends that the last sentence of the proposal is inconsistent with section 5(d) of Executive Order 12564, which requires agencies to initiate removal action against employees who have been found to use illegal drugs and who do not thereafter refrain from using them. The Agency argues that this sentence is, therefore, inconsistent with law under section 7117(a)(1) of the Statute.
The Union contends that Proposal 8 is not an attempt to negotiate the suspension of discipline because it claims that the Agency has already provided for such suspensions by agreeing to stay discipline in its proposed program. Rather, the Union argues that its proposal is intended to provide the procedures by which the stays will be granted. Finally, the Union argues that its proposal is designed to be consonant with the adoption and promotion of employee assistance programs.
B. Discussion
We conclude that the first two sentences of Proposal 8 are outside the duty to bargain because they directly interfere with management's right under section 7106(a)(2)(A) to discipline employees.
The first two sentences of Proposal 8 preclude management from disciplining employees while they are enrolled in a drug rehabilitation program and when they successfully complete that program. Proposals which preclude disciplinary action against employees enrolled in rehabilitation programs prevent management from exercising its right to discipline under section 7106(a)(2)(A) of the Statute. See National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground Installation Support Activity, 31 FLRA 241, 248-49 (1988), petition for review as to other matters filed sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, No. 88-1310 (D.C. Cir. Apr. 21, 1988) (broadly worded proposal precluding removal of an employee for any reason while the employee is enrolled in rehabilitation program held to exceed the requirements of the Executive Order and to improperly interfere with management's right to discipline). Because the first two sentences of Proposal 8 would immunize employees from discipline for acts which result from illegal drug use if they participate in and successfully complete a rehabilitation program, we find that those sentences directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and are outside the duty to bargain.
However, we disagree with the Agency's contention that the last sentence of Proposal 8 is inconsistent with section 5(d) of Executive Order 12564. That section requires agencies to initiate action to remove employees found to have used illegal drugs if the employee refuses to obtain counseling or does not thereafter refrain from using illegal drugs.
The Union states that the last sentence of its proposal, which permits reenrollment in a rehabilitation program, was intended to respond to an Agency proposal that employees failing to complete a program would be barred from future enrollment. Petition for Review at 7. The Union states further that employees failing to complete the program and who the Agency does not remove, should not be barred from future enrollment. Petition for Review at 7. Interpreted in this manner, the last sentence of the proposal would not prevent the Agency from complying with the requirements of section 5(d) of the Executive Order because it does not bar the Agency from removing an employee who fails to complete a drug rehabilitation program. It only provides that an employee who is not removed should not be barred from future reenrollment.
VI. Order
The Agency must upon request, or as otherwise agreed to by the parties, bargain on the last sentence of Proposal 8.(*) The petition for review as to Proposals 1, 7 and the first two sentences of 8 is dismissed.
Issued, Washington, D.C.,
__________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ In finding this sentence negotiable, we make no judgment as to its merits.