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33 FLRA No. 77

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 405

and

U.S. ARMY AVIATION SYSTEMS COMMAND AND

U.S. ARMY TROOP SUPPORT COMMAND

0-NG-1546

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 28, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This case is before the Authority because of a negotiability petition filed by the National Federation of Federal Employees, Local 405 (the Union) under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of five provisions of a collective bargaining agreement, negotiated by the Union and the U.S. Army Aviation Systems Command (AVSCOM) and the U.S. Army Troop Support Command (TROSCOM), which were disapproved by the Department of the Army (the Agency) in the course of review under section 7114(c) of the Statute.

For the reasons explained in this decision, we conclude that Provision 1, which would prohibit the Agency from administering random drug tests to employees, is nonnegotiable because it directly interferes with management's right to determine its internal security practices under section 7106(a) of the Statute. Further, because Provision 1 excessively interferes with management's right to determine its internal security practices, it is not a negotiable appropriate arrangement under section 7106(b)(3). We find that Provision 2, which permits an employee to request a written rationale from the labor relations office, is negotiable since the provision does not require that office to perform a task. Provision 3, requiring the labor relations officer to perform certain duties, is outside management's duty to bargain because it violates management's right to assign work. We conclude that Provision 4, which places conditions on management's assignment of Government quarters, is nonnegotiable because it conflicts with Agency regulations for which a compelling need exists. Finally, we find that Provision 5, which defines when an employee becomes a participant in the Agency's Employee Assistance Program, is negotiable as it does not conflict with any law or Government-wide rule or regulation and is not otherwise outside the duty to bargain.

Initially, the Union appealed allegations by the Agency under section 7117(c)(3) that 10 provisions in its agreement with AVSCOM/TROSCOM were nonnegotiable. Subsequently, the Agency withdrew its allegations of nonnegotiability concerning Article IX, Section 8(3), Article XII, Section 3b, Article XIII, Sections 2b and 2c, and Article XXI, Section 12. See Agency's Statement of Position. Therefore, in this decision we will not consider the negotiability of these provisions.

The Union did not file a Reply Brief. Instead, the Union indicated in its letter to the Authority, dated May 26, 1988, that its position on the outstanding issues remains as stated in its appeal.

II. Procedural Issue

The Union contends that the head of the Agency did not disapprove certain portions of its collective bargaining agreement with AVSCOM and TROSCOM within the 30-day period allowed by section 7114(c)(3) of the Statute. Therefore, the Union argues, the Authority should approve its entire collective bargaining agreement as negotiated and executed. The Agency asserts that the disapproval was timely.

According to the record, the agreement was executed on March 8, 1988. Thus, the 30-day period in which the Agency could disapprove the agreement ended on April 7, 1988. Under the Authority's Rules and Regulations, the date of service is "the day when the matter served is deposited in the U.S. mail or is delivered in person." See section 2429.27(d). The Union contends that the postmark on the envelope containing the Agency's disapproval includes the date of April 8, 1988.

The postmark on the envelope submitted to the Authority is illegible. Accordingly, on June 15, 1988, the Authority requested that the parties provide affidavits from Agency and Union officials containing any additional information that might help to resolve the dispute.

A. Arguments of the Parties

In support of its contention that the Agency timely disapproved certain portions of the AVSCOM/TROSCOM agreement, the Agency submits a copy of its Receipt for Certified Mail which is dated April 7, 1988. In addition, the Agency furnishes an affidavit from the official responsible for reviewing the AVSCOM/TROSCOM collective bargaining agreement in which that official states that the Agency's letter reviewing the agreement was "deposited with the postal facility serving the HQ Army Materiel Command as certified mail on April 7, 1988." See Agency's Response to the Authority's Request for Additional Information, June 27, 1988.

The Union makes several arguments to support its contention that the Agency's disapproval was not mailed until April 8, 1988. First, the Union notes that the Agency's Receipt for Certified Mail is not postmarked, rather it was dated with a date stamp. The Union points out that a Receipt for Certified Mail, Postal Service Form 3800, provides on the reverse of the form that a party may date and mail an article using the form but without obtaining a postmark.

Second, the Union submits two statements by Union officers. In one statement, a Union official states that on April 8, 1988, an AVSCOM labor relations specialist told the official by telephone that the Agency had not acted concerning the collective bargaining agreement. In another statement, an official asserts that when he initially received the Agency's envelope containing the disapproval letter, the postmark could be clearly read as April 8, 1988.

Third, the Union asserts that the metered date was cancelled and the now illegible postmark was placed on the envelope containing the Agency's disapproval because the metered mail date was incorrect. The Union cites the Domestic Mail Manual, Issue 26, April 3, 1988, which states that "[m]etered mail bearing the wrong date of mailing (see 144.47) will be run through a canceling machine or otherwise postmarked to show the proper date." See section 144.534. Section 144.47 includes the statement that "[w]hen deposit is made after the last scheduled collection of the day, mailers are encouraged but not required to use the date of the next scheduled collection."

B. Analysis and Conclusion

After carefully reviewing the information submitted by the parties, we conclude that the evidence does not clearly establish that the Agency's letter disapproving certain provisions in the collective bargaining agreement was untimely under the Authority's regulations.

The Union asserts that the envelope containing the disapproval was postmarked April 8, 1988; however, the postmark on the envelope sent to the Authority is illegible. Although the Union submitted additional information, the evidence does not establish clearly that the date the letter was deposited was April 8, 1988. Furthermore, we note that the Agency's letter disapproving certain provisions is dated April 7, 1988. Moreover, the Agency submitted an affidavit in which an Agency official asserts that the Agency's letter of disapproval was deposited with its postal facility on April 7, 1988.

In the absence of clear documentation from the Union as to the deposit date and in light of the Agency's affidavit stating the disapproval letter was deposited on April 7, 1988, we are unable to conclude that the Agency's disapproval was untimely. Thus, we will consider the negotiability issues raised in the Union's appeal.

III. Provision 1

Article II, Section 7

The Employer will not administer random drug tests of any kind to employees.

A. Positions of the Parties

The Union states that the intent of this provision is to bar the Agency from drug testing unless there is reasonable suspicion that an employee has used illegal drugs. The Union asserts that although it is aware of the Authority's decisions finding similar proposals nonnegotiable, it believes the Authority's position is in error. Accordingly, the Union wishes to preserve this issue for appeal. In addition, the Union seeks to distinguish this case from earlier Authority decisions by arguing that none of the employees in the bargaining unit are classified as critical for the purpose of drug testing under Army Regulation (AR) 600-85.

The Union states that the union's arguments in American Federation of Government Employees, Local 2185 and Tooele Army Depot, Tooele, Utah, 31 FLRA 45 (1988), petition for review filed sub nom. American Federation of Government Employees, Local 2185 v. FLRA, No. 88-1195 (D.C. Cir. Mar. 17, 1988), are applicable in this case. In AFGE, Local 2185 and Tooele Army Depot, the union contended that random drug testing constitutes an unreasonable search prohibited under the Fourth Amendment of the U.S. Constitution. Additionally, the union argued that its proposal struck a balance between the competing needs of employees to be protected from invasions of privacy and the agency's need to conduct drug tests. The union asserted that requiring probable cause for drug testing constituted an appropriate arrangement which did not excessively interfere with the agency's decision to institute a drug testing program.

The Agency argues that the Authority has held that its conduct of a random civilian drug testing program is nonnegotiable as it is an aspect of its internal security practices. 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, 1055-57 (1988) (U.S. Army Armament, Munitions and Chemical Command), remanded 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. May 25, 1988). Also, the Agency asserts that proposals prohibiting an agency's use of random drug testing are not appropriate arrangements. Additionally, the Agency states that Executive Order (E.O.) 12564, entitled "Drug-Free Federal Workplace," permits agency heads to determine the criteria for drug testing and the extent to which employees in sensitive positions will be tested. See 51 Fed. Reg. 32889 (Sept. 17, 1986).

Responding to the Union's argument concerning critical positions, the Agency argues that the AVSCOM/TROSCOM bargaining unit includes a pilot. The Agency states that pilots are specifically identified in Appendix K of AR 600-85 as a job series to be tested in its civilian drug testing program.

B. Analysis and Conclusion

We conclude that Provision 1, which would prevent the Agency from conducting employee drug testing on a random basis, is outside management's duty to bargain for the reason set forth below.

1. Provision 1 is Not Inconsistent with E.O. 12564

The Union argues that random drug testing constitutes an unreasonable search which is prohibited by the Fourth Amendment to the U.S. Constitution. As we previously stated, we assume the constitutionality of the Executive Order and agency drug testing programs. U.S. Army Armament, Munitions and Chemical Command, 30 FLRA at 1051-52.

Proposal 1 in U.S. Army Armament, Munitions and Chemical Command required an agency to have probable cause or a reasonable suspicion of drug abuse before testing employees for drug use. We concluded that Proposal 1 in that case was not inconsistent with E.O. 12564. Id. at 1054-55. In reaching that conclusion, we noted that E.O. 12564 provides that all Executive agencies must establish programs designed to test employees for illegal drug use, but it does not require agencies to test employees on a random basis. Therefore, for the reasons more fully explained in U.S. Army Armament, Munitions and Chemical Command, we conclude that Provision 1 in this case, which precludes random drug testing, is not inconsistent with E.O. 12564. Thus, Provision 1 is not barred from negotiation under section 7117(a)(1) of the Statute.

2. Provision 1 Directly Interferes with Management's Right to Determine its Internal Security Practices under section 7106(a)(1)

Provision 1 would prevent the Agency from administering random drug tests of any kind to its employees. In their arguments, the parties refer to our earlier decisions on random drug testing of employees.

In U.S. Army Armament, Munitions and Chemical Command, we held that a proposal which prevented random drug testing of employees in critical positions, as defined by AR 600-85, directly interfered with management's right to determine its internal security practices. Id. at 1055-57. Part of the agency's plan under AR 600-85 was to use random testing to achieve its internal security goals because it has decided that such testing by its very nature contributes to reaching the agency's objectives. As noted in U.S. Army Armament, Munitions and Chemical Command, unannounced random testing has a deterrent effect on drug users and makes it difficult for drug users to take action to cover up their drug abuse or otherwise evade the tests. We concluded in U.S. Army Armament, Munitions and Chemical Command that a connection existed between the agency's decision to randomly test for drug use and its expressed security concerns. Thus, we found that the use of random drug testing constituted an exercise of management's right to determine its internal security practices.

We also determined in U.S. Army Armament, Munitions and Chemical Command that preventing the agency from random testing reversed the substantive effect of management's action by limiting management to testing only on the basis of probable cause. Id. at 1057-58, citing 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). 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).

Provision 1 in this case would restrict management's ability to test for employee drug abuse by precluding the use of random testing. Whether or not there are now employees classified as critical in the bargaining unit, Provision 1 would prevent any bargaining unit employees from being randomly tested for drug use in the future. See Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 31 FLRA 70 (1988) (proposal prohibiting management from testing any employee's urine for drug use held to directly interfere with management's right to determine internal security practices). Such a prohibition would limit the Agency's ability to enhance the security of its installations. Therefore, we find, for the reasons discussed more fully in U.S. Army Armament, Munitions and Chemical Command, that Provision 1 is nonnegotiable because it directly interferes with the Agency's right to determine its internal security practices under 7106(a).

IV. Provisions 2 and 3

Provision 2: Article V, Section 2

...the employee will be entitled to request a written rationale to be provided by the Labor Relations Office within 24 hours.

Provision 3: Article V, Section 5

The Labor Relations Officer will respond in writing....

[Only the underlined words are in dispute.]

A. Positions of the Parties

The Union argues that the Agency has the right to exercise its right to assign work by memorializing a work assignment in the collective bargaining agreement. According to the Union, the Agency proposed the disputed language during negotiations and the Union did not object. Therefore, the Union argues, Provisions 2 and 3 should be found negotiable since nothing in the Statute prohibits the Agency from exercising its right to assign work during negotiations.

The Agency contends that Provisions 2 and 3 are nonnegotiable because they require the labor relations office and the labor relations officer to perform certain tasks.

B. Analysis

1. Provision 2

We find that Provision 2 is within management's duty to bargain. As we read Provision 2, it provides that an employee may request a written rationale from the labor relations office. It does not, however, require that office to provide the rationale.

Contrary to the Agency's claim, we find that Provision 2 does not violate management's right to assign work. The language of the provision allows management the option of not providing the requested rationale.

2. Provision 3

We find that Provision 3 is nonnegotiable because it interferes with management's right to assign work under section 7106(a).

Management's right to assign work includes the right to assign specific tasks to particular individuals. Since Provision 3 would require that the labor relations officer provide written statements to employees, we find that this provision is nonnegotiable. See, for example, Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, AFL-CIO, 31 FLRA 651 (1988) (proposal held nonnegotiable because it required a supervisor to rotate positions in interviewing).

As the Agency notes, we have urged that local parties conduct their negotiations in a manner which attempts to ensure that provisions will not be disapproved under section 7114(c) based on technical defects which do not concern the substantive issues on which the local parties reached agreement. See, for example, American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command-Redstone Arsenal Commissary, 27 FLRA 69, 81-82 (1987). In this case, the defect could easily be cured by removing the designation of the labor relations officer and substituting a term such as "employer."

C. Conclusion

Based on the reasoning and cases cited above, we find that Provision 2 is within the Agency's duty to bargain and Provision 3 is nonnegotiable.

V. Provision 4

Article XIII, Section 2.d

The employee will not be required to use Government quarters when management personnel, either civilian or military, are on the same or similar missions at the site and are not required to use such quarters.

A. Positions of the Parties

The Union contends that the assignment of quarters while employees are on temporary duty has nothing to do with the assignment of work under section 7106(a), as the Agency alleges. The Union notes the Agency's argument that Provision 4 violates the Joint Travel Regulations (JTR), but does not comment on it.

The Agency asserts that Provision 4 is nonnegotiable for two reasons. First, the Agency states that Provision 4 is inconsistent with the Department of Defense Civilian Personnel, JTR, Volume 2, Chapter 1055 and Department of Defense (DOD) Instruction 4165.47. According to the Agency, the Authority has found a compelling need for both of these regulations. Second, the Agency contends that the provision violates management's right to assign employees and work in violation of section 7116(a)(2)(A) and (B).

The Agency argues that compliance with Provision 4 would place it in violation of the JTR and DOD Instruction. JTR, Chapter 1055 requires, according to the Agency, that employees on temporary duty (TDY) use Government quarters unless the order-issuing authority issues a statement that such utilization would adversely affect the performance of the assigned mission. The Agency adds that DOD Instruction, 4165.47.D.4.b., states that civilian personnel traveling on official orders to a military installation shall not be paid for any expenses attributable to lodging when adequate Government housing is available but not occupied. The Agency states that under Provision 4, if the Agency determines that the performance of an assigned mission would be adversely affected by assigning a supervisor to Government quarters, none of the bargaining unit employees on the team could be assigned to such quarters. However, if adequate Government housing was available and the Agency did not utilize it, the Agency asserts that it would be in violation of the JTR and DOD Instruction.

Additionally, the Agency argues that Provision 4 violates its right to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that lodging a team of supervisors and employees near its work site in a single location facilitates the assignment of work after regular duty hours. Application of Provision 4, according to the Agency, could result in splitting team members between locations. For example, if two groups on similar missions are assigned to the same TDY location, Provision 4 would prevent management from assigning supervisors and bargaining unit employees from one group to on-post Government quarters and supervisors and employees of another group to a hotel nearer its work site. The Agency argues that it would be impossible to coordinate work assigned outside the regular work day in these circumstances. Thus, the Agency asserts that Provision 4 would prevent management from assigning work.

B. Analysis and Conclusion

For the following reasons, we find that Provision 4 conflicts with Agency regulations for which there is a compelling need. Thus, Provision 4 is outside management's duty to bargain under section 7117(a)(2).

Provision 4 would prevent management from assigning any bargaining unit employees on TDY at a military installation to Government quarters unless all management personnel on the same or a similar mission are assigned to Government quarters. As we read Provision 4, if management personnel on the same or a similar mission are assigned to non-Government lodging, the Agency would be required to assign bargaining unit employees to non-Government lodging and pay the cost of such lodging. However, payment for non-Government lodging on this basis would not be consistent with Agency regulations.

According to the Agency, DOD Instruction, 4165.47.D.4.b state that "'civilian personnel traveling on official orders to a military installation shall not be paid for any expenses attributable to lodging when adequate Government housing is available but not occupied.'" Agency Statement of Position at 6. Thus, payment for lodging expenses when adequate Government housing is available is contrary to DOD Instruction, 4165.47.D.4.b.

Furthermore, the relevant provisions of the JTR, Volume 2, Chapter 1055, state that when adequate Government quarters are not used by an employee, the quarters portion of the per diem will not be paid in the absence of a statement of nonavailability or nonutilization. See National Federation of Federal Employees, Local 561 and Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 17 FLRA 759, 761, n.3 (1985) (U.S. Army Corps of Engineers, Mobile, Alabama). Under the JTR, a nonutilization statement may be made if using Government quarters would adversely affect the assigned mission or is impracticable. As we read Provision 4, management's assignment of bargaining unit employees to non-Government lodgings, under the circumstances described in the provision, would require a statement of nonutilization of Government quarters on a basis which is not included in the JTR.

Thus, we conclude that Provision 4 conflicts with DOD Instruction, 4165.47.D.4.b. and the JTR. Provision 4, therefore, is inconsistent with those regulations.

As the Agency noted, the Authority found a compelling need for JTR, Volume 2, Chapter 1055 and DOD Instruction 4165.47 in U.S. Army Corps of Engineers, Mobile, Alabama, 17 FLRA at 766-68. The Authority found that the regulations in question were issued in response to the Defense Appropriation Acts of 1978 and 1979, which prohibit DOD from disbursing funds for lodging employees who are on temporary duty when adequate Government quarters are available but not occupied. In reviewing the legislative history of those two Acts, the Authority found that Congress intended to ensure significant savings to the Federal Government by providing an economic disincentive to employees who fail to use Government quarters when those quarters are adequate and available. The Authority found that the legislative history of those Acts was replete with evidence that Congress intended DOD to issue uniform rules for the use of Government quarters.

Because the DOD regulations were issued to comply with Congress' mandate, the Authority found that the Agency had established that a compelling need existed for those regulations under section 2424.11(c) of the Authority's Rules and Regulations. This conclusion was affirmed by the D.C. Circuit Court of Appeals. See National Federation of Federal Employees, Local 29 and Kansas City District Corps of Engineers, Kansas City, Missouri, 17 FLRA 1052 (1985), aff'd mem. sub nom. National Federation of Federal Employees, Local 29 v. FLRA, No. 85-1398 (D.C. Cir. Apr. 1, 1986).

Relying on the reasoning and analysis in U.S. Army Corps of Engineers, Mobile, Alabama and the D.C. Circuit Court of Appeals decision in National Federation of Federal Employees, Local 29 v. FLRA, we find that there is a compelling need for JTR, Volume 2, Chapter 1055 and DOD Instruction 4165.47. See also American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236 (1988).

Inasmuch as Provision 4 conflicts with the JTR and DOD Instruction 4165.47 and the Authority and the D.C. Circuit Court of Appeals have held that there is a compelling need for these regulations, we find that Provision 4 is nonnegotiable under section 7117(a)(2) of the Statute. Since we hold that Provision 4 is nonnegotiable as it conflicts with an agency regulation for which there is a compelling need, we need not consider whether Provision 4 also violates management's right to assign work.

VI. Provision 5

Article XX, Section 9

Any employee who avails themself [sic] of the program, or discusses or consults with any staff member of the program on medical [or] behavioral problems, is considered a participant of the program.

A. Positions of the Parties

The Agency interprets the provision, in the absence of a statement from the Union, as requiring that "an employee engaged in a simple discussion or consultation with any staff member of the program concerning any medical or behavioral problems be considered a participant" in the Employee Assistance Program (EAP). Agency's Statement of Position at 7. The provision, according to the Agency, is outside the duty to bargain under section 7117(a)(1) because it is inconsistent with Federal Personnel Manual (FPM), Chapter 792, and FPM Supplement 792-2. Citing several sections of these regulations, the Agency asserts that Provision 5 improperly defines when an employee becomes a participant in its EAP. The Agency contends that an employee must be engaged in "counseling" in order to be considered a participant in its EAP.

The Union stated in its petition that the Agency's contention was that Provision 5 conflicts with AR 600-85. The Union stated it would not respond until the Agency met its burden of demonstrating a compelling need for that regulation. The Union did not respond to the Agency's argument concerning the FPM in its Statement of Position.

B. Analysis and Conclusion

After carefully examining the sections of FPM, Chapter 792 and FPM Supplement 792-2 which were cited by the Agency, we conclude that Provision 5 does not conflict with those regulations. Therefore, we find that Provision 5 is within the Agency's duty to bargain.

Provision 5 would require the Agency to consider an employee who discusses or consults with an EAP staff member concerning medical or behavioral problems to be a participant in the EAP. The Agency cited FPM Supplement 792-2, subchapter S1-3 to support its argument that counseling must take place before an employee can be considered an EAP participant. That subchapter refers to "counseling" and "treatment," but it does not mandate that either occur before an employee can be considered a participant in an EAP and it does not define the meaning of participation in an agency program. Subchapter 6 of FPM 792 concerns the role of the agency personnel office in employee counseling. Early problem identification, counseling, and treatment are discussed in Subchapters 6-6 and 6-9.

However, there is no statement defining when an employee becomes a program participant. The Agency has not established that the provision conflicts with FPM, Chapter 792 or FPM Supplement 792-2. Thus, we conclude that Provision 5 is within the Agency's duty to bargain.

VII. Order

The petition for review of Provisions 1, 3, and 4 is dismissed. The Agency must, upon request, or as otherwise agreed to by the parties, bargain concerning Provisions 2 and 5^(*)

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ In finding this proposal to be negotiable, we make no judgment as to its merits.

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