[ v37 p1456 ]
37:1456(117)NG
The decision of the Authority follows:
37 FLRA No. 117
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 3457
(Union)
and
U.S. DEPARTMENT OF THE INTERIOR
MINERALS MANAGEMENT SERVICE
SOUTHERN ADMINISTRATIVE SERVICE CENTER
NEW ORLEANS, LOUISIANA
(Agency)
0-NG-1686
DECISION AND ORDER ON NEGOTIABILITY ISSUES
October 31, 1990
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This case is before the Authority based on a petition for review filed by the Union 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 regarding the implementation of the Agency's drug testing program.
The proposals set forth specific information that is to be provided to employees by the Agency prior to each drug test. Each proposal specifies that 24 hours prior to each test, the Agency shall inform each employee to be tested, in written detail, of the information listed in the proposal.
We find that the proposals are nonnegotiable because they directly interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
II. The Proposals
Proposal 1
In the event drug testing is required under Section 2.A., twenty-four hours prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
A. Whether the test is mandatory or voluntary under this agreement...
Proposal 2
In the event drug testing is required under Section 2.A., twenty-four hours prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
B. The reasons for ordering the drug testing...
Proposal 3
In the event drug testing is required under Section 2.A., twenty-four hours prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
C. How the employee was selected for the test...
Proposal 4
In the event drug testing is required under Section 2.A., twenty-four hours prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
D. The frequency or intervals which they will be tested...
Proposal 5
In the event drug testing is required under Section 2.A., twenty-four hours prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
E. The consequences of a positive result or refusal to cooperate, including adverse action...
Proposal 6
In the event drug testing is required under Section 2.A., twenty-four hours prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
F. That after any confirmed positive drug test there will be an opportunity for them to submit supplemental medical documentation to support the legitimate use of a specified drug...
Proposal 7
In the event drug testing is required under Section 2.A., twenty-four hours prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
G. The location of drug abuse counseling and referral services available through the Employee Assistance Program to which he/she can voluntarily submit prior to testing without reprisal...
Proposal 8
In the event drug testing is required under Section 2.A., twenty-four hours prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
H. The right to union representation concerning the matter, including but not limited to any meetings, or preparation for meetings, before, during or after the test is conducted...
Proposal 9
In the event drug testing is required under Section 2.A., twenty-four hours prior to each test, the employer shall inform the concerned employee(s), in detail and in writing, of each of the following:
I. [The] [o]riginal sample will be immediately split upon collection. The agency will retain one part of the split sample in an appropriate, refrigerated, secure storage facility. If any employee registers a confirmed positive test result, the employee has the right to have the second sample submitted to a certified independent lab of his/her choice for retesting at agency expense.
III. Positions of the Parties
A. The Agency
The Agency contends that the introductory paragraph to each of the proposals requires that, 24 hours prior to each test, the Agency shall inform each employee to be tested, in written detail, of the information listed at each proposal. The Agency asserts that the 24-hour notice of testing provides employees who are users of illegal drugs with an opportunity to attempt to purge their systems of drugs. The Agency states that employees may be able to reduce the likelihood of detection through abstinence, dietary changes, or intentional dilution or contamination of the sample during the 24-hour notice period. Agency's Statement of Position at 2-3.
The Agency contends, contrary to the Union's assertions, that the 24-hour notice requirement defeats the purpose of random or reasonable suspicion testing. The Agency argues that drugs such as amphetamines and opiates may be excreted within 24 hours, thereby enabling employees using illegal drugs to be free of those drugs when tested. The Agency asserts that the proposals directly interfere with management's right to determine the internal security practices of the Agency under section 7106(a)(1) and are nonnegotiable. Id. at 3.
The Agency notes that the 24-hour notice requirement in each of the proposals could be interpreted as allowing even more than 24 hours notice because the 24 hours are not stated to be a maximum or ceiling. Therefore, employees using illegal drugs could have additional time to remove traces of the drugs from their systems prior to the test.
Additionally, the Agency contends that the 24-hour notice requirement found in the introductory paragraph of each of the nine proposals is inconsistent with Part II, § 8.E of the Agency's Plan for a Drug Free Workplace (Plan) for which the Agency asserts a compelling need under section 7117(a)(2) of the Statute. The Agency claims that the Plan's notice requirements do not allow employees an opportunity to purge their systems prior to the test. Id. at 4. The Agency also claims that its Plan is "essential to the efficient execution of the [A]gency's internal security functions in order to be consistent with the requirements of an effective and efficient government." Id. at 4-5.
In addition to the arguments as to advance notice which are applicable to all of the proposals, the Agency makes specific arguments regarding three of the proposals. The Agency argues that Proposal 7 violates management's right to take disciplinary action under section 7106(a)(2)(A) because it requires that information be provided to the employee as to counseling and rehabilitation services to which the employee may voluntarily submit after the test is scheduled but prior to testing "without reprisal." Id. at 12.
The Agency contends that Proposal 8 is inconsistent with the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS), 53 Fed. Reg. 11979-89 (1988) (final Guidelines) and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute, because it allows a Union representative to be present before or during the time the test is conducted. The Agency argues that the final Guidelines do not permit any additional personnel to be in the testing area. The Agency states that section 2.2(d) of the final Guidelines provides that "[n]o unauthorized personnel shall be permitted in any part of the designated collection site when urine specimens are collected or stored." Id. at 16, quoting 53 Fed. Reg. at 11982. The Agency also argues that any additional personnel in the testing area would interfere with management's right to determine its internal security practices under section 7106(a)(1). Id. at 14. Finally, the Agency argues that Proposal 8 does not constitute a negotiable procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3). Id. at 17.
The Agency also contends that Proposal 9 is inconsistent with the final Guidelines, and, therefore, is nonnegotiable under section 7117(a)(1), because it permits split samples, provides for prohibited use of the results of the split sample, and breaks chain of custody requirements. Id. at 21-22. By allowing the split sample to be tested at an independent laboratory of the employee's choice at Agency expense, the Agency argues that Proposal 9 is inconsistent with the final Guidelines, interferes with the Agency's internal security requirements under section 7106(a)(1), and violates management's right under section 7106(a)(2)(B) to make determinations with respect to contracting out. Id. at 23-30. The Agency also contends that the retention of part of the sample of urine for the employee's own use, and the private testing of such a retained sample at a laboratory of the employee's choosing, are not working conditions under section 7103(a)(14) of the Statute because they are not requirements of the Government's testing program under the final Guidelines. Id. at 27.
In a submission in response to an order of the Authority requesting the parties to address the applicability of Federal court decisions involving drug testing programs to this case, the Agency argues that Proposals 8 and 9 are nonnegotiable because they are inconsistent with the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground). The Agency argues that the court found that the final Guidelines contain the exclusive standards for the collection of specimens. Agency's Supplemental Submission at 2. The Agency also contends that the final Guidelines preclude unauthorized personnel from being present at the collection site and, therefore, that Proposal 8 is inconsistent with the final Guidelines. The Agency also argues that the court's decision regarding the use of split samples would similarly apply to Proposal 9 and concludes that Proposal 9, therefore, is inconsistent with the final Guidelines.(2)
B. The Union
The Union contends that the 24-hour notice requirement found in each of the nine proposals does not interfere with management's internal security practices. The Union acknowledges that Authority precedent has held that notice period proposals that frustrate the drug testing program are nonnegotiable. The Union argues, however, that a 24-hour notice period would not enable employees who had used illegal drugs sufficient time to erase the traces of use of the drugs from their systems. According to the Union, a 24-hour notice requirement would not frustrate the purposes of the drug testing program because it does not allow an employee to defeat the urinalysis. Union's Response at 5-11.
The Union disputes the Agency's compelling need assertion for its internal drug testing plan. The Union argues that the Agency "merely rewords its arguments relating to the 24-hour notice period being nonnegotiable because it allegedly frustrates the testing program." Id. at 12. The Union contends that the Agency has not shown how the notice period substantially undermines the efficacy of the urine testing. Id.
The Union also responds to the Agency's arguments regarding specific proposals. As to Proposal 7, the Union states that the proposal is not intended to shield employees from other actionable offenses such as theft, insubordination, or unauthorized absences from work. Rather, the Union contends that the proposal is aimed at protecting employees who voluntarily join a drug treatment program, comply with the program, and still maintain acceptable performance on the job. Id. at 17. The Union states that that is why the proposal did not use the term "discipline" and used instead the term "reprisal." Id. at 19.
As provided in Proposal 8, each employee to be tested would be informed, 24 hours in advance, of the right to have a Union representative present before, during, and after the test. The Union claims that the "coerced 'donation' of a urine specimen in circumstances of a search for drug abusers is clearly something an employee could reasonably result [sic] in disciplinary action, if it already could not be considered a 'formal meeting' with[in] the comprehension of the Statute." Id. at 22. The Union argues that having a Union representative present during the drug testing "is important to the integrity of the program. It assures the employee that a non-hostile person is available to help protect against harassment and reprisal." Id. at 23. The Union claims that any internal security problems, as raised by the Agency, could be overcome by well-managed collection site procedures.
The Union relies on the Authority's decision in National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 33 FLRA 436 (1988) (Rock Island II), as precedent for the negotiability of the split sample requirement in Proposal 9.
The Union does not claim that Proposals 1 through 9 constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute.
IV. Analysis and Conclusion
Proposals 1 through 9 require that an employee be notified 24 hours in advance that he or she will be tested for illegal drug use. For the reasons stated below, we find that the proposals are nonnegotiable.
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 1046 (1988), remanded as to other matters 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) (order), decision on remand, 33 FLRA 436 (1988), rev'd in part and remanded as to other matters sub nom. Aberdeen Proving Ground, 890 F.2d 467 (D.C. Cir. 1989), decision on remand, 35 FLRA 936 (1990) (Rock Island III), the Authority held that the agency's drug testing program for employees in sensitive positions constituted an exercise of its right under section 7106(a)(1) to determine its internal security practices because the program, which included a "provision for unannounced random tests, . . . concerns the policies and actions which are a part of the [a]gency's plan to secure or safeguard its physical property against internal and external risks, to prevent improper or unauthorized disclosure of information, or to prevent disruption of the [a]gency's activities." Rock Island I, 30 FLRA at 1056. The agency explained that "[u]nannounced random testing has a deterrent effect on drug users and makes it difficult for drug users to take action to cover up their use or otherwise evade the tests." Id. In Rock Island I the Authority held that the agency's use of random testing as a part of its drug testing program constituted an exercise of management's right to determine its internal security practices. Id.
Having concluded that there was a connection or "link" between the agency's decision to use random tests and the agency's security concerns relating to employees in sensitive positions, the Authority stated that it would not review the merits of the agency's decision. Id. In other words, the Authority's inquiry ended with its conclusion that the agency's use of random testing for employees in sensitive positions was within the scope of the exercise of management's right to determine its internal security practices under section 7106(a)(1).
Proposals 1 through 9 in this case require that an employee be notified 24 hours in advance that he or she will be tested for illegal drug use. In American Federation of Government Employees, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA No. 116, slip op. at 4-6 (1990) (Sierra Army Depot), we found that provisions requiring notice to employees 2 hours prior to each random test directly interfered with management's right to determine its internal security practices under section 7106(a)(1) of the Statute. We concluded that because the provisions required 2 hours' advance notice to employees that they would be required to undergo a random drug test, the provisions limited the Agency's right to conduct unannounced random tests. Because Proposals 1 through 9 would require that employees receive 24 hours' notice prior to a random drug test, we find that those proposals would also limit management's right to conduct unannounced random drug tests. Indeed, 24 hours', rather than 2 hours', advance notice affords employees disposed to attempt concealing use of illegal drugs additional opportunity to circumvent the drug testing. Consequently, we conclude, consistent with Sierra Army Depot, that Proposals 1 through 9 directly interfere with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
We note that the Union has not argued that the proposals are intended as "appropriate arrangements" within the meaning of section 7106(b)(3) of the Statute. Therefore, we will not determine whether the proposals constitute an appropriate arrangement under section 7106(b)(3) of the Statute. See Sierra Army Depot, slip op. at 6-7. See also National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, Department of Military Affairs, Illinois National Guard, Springfield, Illinois, 36 FLRA 75, 80-81 (1990).
We note, in addition, that it is irrelevant whether the form of notice or the information contained in the proposals is consistent with law, rule and regulation. Because the information is required to be provided to employees when they are given advance notification that they are to undergo a drug test, the proposals are contrary to the Agency's right to determine its internal security practices by implementing a random drug testing program. Compare American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 31 FLRA 95, 98 (1988) (first sentence of Proposal 43, requiring the agency to inform an employee of the exact drug or class of drugs for which the employee is to be tested prior to the submission of a urine sample by the employee, but not requiring that the employee be informed at any particular time, did not conflict with management's rights).
Because we have found that the proposals directly interfere with management's right under section 7106(a)(1) of the Statute to determine its internal security practices and that they are, therefore, nonnegotiable, we need not address the additional arguments raised by the Agency regarding specific proposals. We do not need to consider, therefore, whether a compelling need exists for the Agency's internal regulations implementing its drug testing program. Similarly, we do not need to consider whether Proposal 7 interferes with the Agency's right to discipline employees, whether Proposal 8 is inconsistent with the final Guidelines, or whether the specific requirement in Proposal 9 that employees be informed of their right to retain a portion of their sample for testing at an independent laboratory at Agency expense, if the tested sample is positive, is inconsistent with law and regulation.
Finally, we note that in Aberdeen Proving Ground, 890 F.2d at 471-73, the U.S. Court of Appeals for the District of Columbia Circuit found that a proposal allowing Department of the Army employees to present independent testing results from a split or new urine sample to the employee's personal supervisor was inconsistent with the final Guidelines and nonnegotiable under section 7117(a)(1) of the Statute. The court found that a proposal allowing an employee to refute the medical review officer's determinations and giving the supervisor the authority to evaluate claims of medical mistake "would undercut the Guidelines' command that agencies appoint a medical officer to make final medical decisions." Aberdeen Proving Ground, 890 F.2d at 473. However, the court also found that a proposal enabling an employee to provide supplementary evidence, such as new or split samples, to facilitate a supervisor's personnel decision might be consistent with the final Guidelines. Id. at 472. See also Rock Island III, 35 FLRA at 938-39.
V. Order
The petition for review as to Proposals 1 through 9 is dismissed.
Concurring Opinion of Member Talkin.
I write separately to note that my views vary from those of my colleagues concerning the extent to which notice to employees that they have been selected to undergo a random drug test interferes with management's right to determine the internal security practices of an agency. As I discussed in my separate opinion in American Federation of Government Employees, AFL-CIO, Local 1808 and U.S. Department of the Army, Sierra Army Depot, Herlong, California, 37 FLRA No. 116 (1990) (Sierra Army Depot), I question the breadth that the majority would allow that management right with regard to random drug testing. I do not believe that the right to determine internal security practices forecloses all notice to employees. Rather, I believe that such issues should be examined more closely to determine whether in particular circumstances notice directly interferes with an agency's ability to conduct random drug testing of employees in sensitive positions, or, instead, is negotiable under section 7106(b)(2) of the Statute.
As I noted in my opinion in Sierra Army Depot, there is uncertainty concerning the precise point at which previous use of various illegal drugs is no longer detectable. Because of this fact and because the agency would not be foreclosed from monitoring the subject employee during the period if necessary, I concluded in that case that a notice period limited to two hours would not directly interfere with the agency's random drug testing program.
A notice period of twenty-four hours, however, is a different matter. It is undeniable that the longer the delay between notice and specimen collection, the more likely it is that the point at which detection is no longer possible might pass. The length of the delay coupled with the fact that a twenty-four hour notice period eliminates the Agency's ability to keep employees under its observation and control create a greater likelihood that the efficacy of the testing program might be frustrated.(*) I cannot rule out that a twenty-four hour notice period would have direct substantive repercussions for the Agency's random drug testing program. Thus, I agree with my colleagues that, by allowing for notice twenty-four hours in advance of specimen collection, the proposals in this case cross the "blurry" line that demarcates substantive interference and procedure and directly interfere with the Agency's management right to determine its internal security practices.
I cannot agree with my colleagues that the applicability of section 7106(b)(3) of the Statute to the proposals in this case should not be addressed because it has not been raised by the Union. In my view, the issue inheres in the parties' arguments. That is, the Union clearly contends that employees are adversely affected by being subjected to urinalysis and clearly intends its proposals to have a palliative effect. The Agency, in arguing against the negotiability of the proposals, contends that the notice provisions of the proposals would frustrate the purpose of its drug testing program and contravene its management right to determine internal security practices. Thus, as with the proposals in Sierra Army Depot, I believe that the issue of section 7106(b)(3) is legitimately before the Authority, notwithstanding the Union's failure to employ the requisite terms of art in its submissions.
As I discussed in Sierra Army Depot, advance notice that they have been selected to undergo a drug test affords substantial benefit to employees. However, I conclude that twenty-four hours of notice also places a substantial burden on the Agency's ability to accomplish the objectives of its drug testing program. That amount of notice increases the likelihood that a drug-abusing employee may evade detection. Consequently, the value of the testing program is reduced, diminishing, in turn, the level of protection that the drug-testing program affords the Agency from the effects and consequences of drug abuse. In these circumstances, I conclude that the balance must be struck in favor of preserving the Agency's ability to achieve the objectives of its random drug testing program and that a twenty-four hour notice period would excessively interfere with management's right to determine its internal security practices.
For the foregoing reasons I concur in my colleagues' conclusion that the proposals are not within the duty to bargain. I emphasize that I address here only the Agency's obligation to bargain over the disputed proposal in the context of the Executive Order, section 7106 and applicable precedent with respect to the Statute.
AUTHORITY FOOTNOTES:
(If blank, the decision
does not have footnotes.)
1. Member Talkin's concurring opinion is set forth at pages 12-13.
2. The Agency also filed a supplemental statement on June 30, 1989. The Union opposed the Agency's submission of that supplemental statement. Pursuant to section 2424.8 of the Authority's Rules and Regulations, we have not considered the Agency's supplemental statement because the record is sufficient for us to decide the issues in this case.
CONCURRING FOOTNOTE:
(If blank, the decision
does not have footnotes.)
*/ As in Sierra Army Depot, I do not address the merits of the conflicting claims concerning the existence of means by which drug abuse can be masked.