[ v41 p1241 ]
41:1241(97)NG
The decision of the Authority follows:
41 FLRA No. 97
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of 18 provisions addressing implementation of the Agency's drug testing program that were disapproved by the Agency head under section 7114(c) of the Statute.(1) The Agency filed a statement of position and the Union filed a reply brief.(2)
We conclude that Provisions 1, 4, 8, 10, 15, and 18, which concern employees' rights to Union representation at various stages of the drug testing procedure, are negotiable. Provisions 5, 9, 11, and 16, which require disclosure to the Union of notices advising employees that they are to be tested for drug use, are negotiable. Provision 6, the first sentence, which requires disclosure of the written report to the affected employee, is negotiable. However, Provision 6, the second sentence, which requires disclosure to the Union of the Agency's written report detailing the basis for a reasonable suspicion that an employee is an illegal drug user, is nonnegotiable because it is inconsistent with the Privacy Act.
We further conclude that Provisions 3, 7, 12, 13, and 14, which provide that, in certain circumstances, specimen collection will take place the day after a notice of test is provided to an employee, are nonnegotiable because they excessively interfere with the Agency's right to determine its internal security practices. Provision 2, which precludes the Agency from requiring an employee to undergo reasonable suspicion testing during the first 30 days of a rehabilitation program, also is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices. Provision 17, which provides that the tested employee will be provided with a specimen container in which to retain any portion of the specimen exceeding 60 milliliters, is negotiable.
II. Motion to Consolidate
The Agency filed a motion, which the Union opposed, to consolidate this case with Case No. 0-NG-1743. As the Agency's motion was denied in National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 38 FLRA 79, 80 (1990), the motion in this case is denied as moot.
III. Provisions 1, 4, 8, 10, 15, and 18
Provision 1: Article 3-Employee Rights
A. Employees are entitled to and will be informed of the right to UNION representation at every stage of the drug testing procedure. No UNION representative may at any time interfere with proper test administration, including specimen collection, or do anything which might alter the test results.
Provision 4: Article 6-Random Drug Testing
The Notice of Test shall contain, in addition to the information specified in DOE 3792.3, Chapter II, Section 5.b.:
1. the drugs for which testing will be performed.
2. a notice that the employee is entitled to NTEU representation at all stages of the procedure, as stated at 3.A.
Provision 8: Article 7-Reasonable Suspicion Testing
F. The Notice of Test shall contain, in addition to the information specified in DOE 3792.3, Chapter II, Section 5.b.:
1. the drugs for which testing will be performed.
2. a notice that the employee is entitled to NTEU representation at all stages of the procedure, as stated at 3.A.
Provision 10: Article 8-Employee Applicant Testing
B. The Notice of Test shall contain, in addition to the information specified in DOE 3792.3, Chapter II, Section 5.b.:
1. the drugs for which testing will be performed.
2. a notice that the employee is entitled to NTEU representation at all stages of the procedure, as stated at 3.A.
Provision 15: Article 9-Incident/Occurrence Testing
The Notice of Test shall contain, in addition to the information specified in DOE 3792.3, Chapter II, Section 5.b.:
1. the drugs for which testing will be performed.
2. a notice that the employee is entitled to NTEU representation at all stages of the procedure, as stated at 3.A.
Provision 18: Article 12-Medical Review Officer
A. In addition to the information required in DOE 3792.3, Chapter III, Section 4a(4), a Notification by the Medical Review Officer to the employee of a Determination of the Use of Illegal Drugs will be accompanied by:
1. a notice of the employee's appeal rights;
2. a notice of the employee's right to Union representation, including the appropriate NTEU Chapter President's telephone number;
[Only the underscored portions of the provisions are in dispute.]
A. Positions of the Parties
1. The Agency
The Agency asserts that Provisions 1, 4, 8, 10, 15, and 18 conflict with the Agency's rights to determine its internal security practices and to contract out under section 7106(a)(1) and (a)(2)(B) of the Statute. The Agency contends that neither the agreement with its contractor nor its contract with its Medical Review Officer (MRO) provides for the presence of Union representatives during the testing process or during interviews with the MRO. The Agency also contends that the Union does not have a right under section 7114(a)(2) of the Statute to be present during specimen collections or interviews.
2. The Union
The Union contends that the provisions do not interfere with the Agency's rights to determine internal security practices or to contract out. The Union also contends that provisions providing employee rights to representation beyond those provided for by section 7114(a)(2) of the Statute are negotiable.
The Union also argues that these provisions constitute appropriate arrangements, within the meaning of section 7106(b)(3) of the Statute. The Union asserts that numerous adverse effects may result from drug testing, including discipline. In the Union's view, the burden placed on management's rights by these provisions are "minimal." Reply Brief at 8. The Union argues, in this regard, that the provisions do not violate employees' privacy rights because employees retain the right to determine whether a Union representative will be present during specimen collection. The Union states that the provisions provide employees with benefits which "outweigh any minuscule" impact on the Agency's rights. Id. at 9.
B. Analysis and Conclusions
1. Union Representation
In National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 40 FLRA 174, 180-85 (1991), petition for review filed sub nom. United States Department of Agriculture, Forest Service v. FLRA, No. 91-1275 (D.C. Cir. June 10, 1991) (Forest Service), the Authority considered a proposal similar to Provision 1. We concluded in Forest Service that a proposal providing for notification to employees of a right to have a union observer present during specimen collection did not directly interfere with the agency's right to determine its internal security practices. We noted that the presence of a union representative as an observer would not, by itself, compromise the security of the testing process and that the proposal enabled the agency to take actions to protect the integrity of the testing process. We concluded that the proposal in Forest Service, whether applied to random, reasonable suspicion, or accident testing, was negotiable.
Provision 1 requires that employees be provided with notice that they are entitled to Union representation "at every stage of the drug testing procedure." Provision 1 also specifically provides that Union representatives may not "at any time interfere with proper test administration, including specimen collection, or do anything which might alter the test results." Provisions 4, 8, 10, and 15 also require that the Agency notify the employee of his or her right to Union representation during random, reasonable suspicion, employee applicant, and incident/occurrence drug testing.(3) Consistent with their plain wording, which refers to Provision 1, and in the absence of any assertion to the contrary, it is clear that Provisions 4, 8, 10, and 15 incorporate the requirements that Union representatives not interfere with the Agency's administration of drug tests. However, Provision 18, which requires such notice to accompany a notification from the MRO to an employee of a confirmed positive test, does not reference Provision 1. Nevertheless, there is no basis on which to conclude that Union representation during an employee meeting with the MRO would affect the Agency's right to ensure the security or integrity of the testing process.
Therefore, we conclude that providing employees with rights to Union representation during the drug testing process would not affect the Agency's decision to conduct such tests or otherwise compromise the security of the tests. Accordingly, for the reasons fully set forth in Forest Service, we reject the Agency's assertion that Provisions 1, 4, 8, 10, 15, and 18 directly interfere with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
We also reject the Agency's assertion that providing employees with rights to Union representation during drug testing would interfere with its right to contract out. Nothing in the provisions limits, or even addresses, the Agency's authority to determine what aspects of its drug testing procedures will be performed by contractors. Similarly, the provisions would not affect the Agency's right to determine how, or by which contractors, those various aspects of drug testing procedures will be performed.
It is clear that various activities associated with drug testing may be performed by contractors. However, that fact does not render these provisions nonnegotiable:
[A]s drug testing programs are, in part, performed by contractors, implementation of many drug-testing proposals would necessitate agency action involving contractors. In our view, however, . . . that effect alone does not constitute direct interference with an agency's rights under section 7106 of the Statute.
National Federation of Federal Employees, Local 1384 and U.S. Department of Air Force, 3245th Air Base Group, Hanscom Air Force Base, Massachusetts, 41 FLRA 195, 205, (1991).
Moreover, contrary to the Agency's argument, any conflict between the provisions and existing agreements between the Agency and its contractors or the MRO does not render the provisions nonnegotiable. Under section 7117 of the Statute, the duty to bargain extends to proposals that, as relevant here, are not inconsistent with Federal law, Government-wide rule or regulation, or an Agency regulation for which there is a compelling need. There has been no showing that the Agency's existing agreements constitute laws, rules, or regulations under section 7117.
Finally, we reject the Agency's assertion that the disputed provisions are nonnegotiable because they provide for a right to Union representation which is not provided for by section 7114 of the Statute. Nothing in section 7114(a)(2) of the Statute prevents unions from negotiating contractual rights to union representation which exceed the rights set forth in that section of the Statute. For example, American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 549-50 (1991), petition for review filed sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, No. 91-4525 (5th Cir. June 25, 1991). Accordingly, it is unnecessary to address whether, or to what extent, the rights to Union representation provided in the disputed provisions exceed those rights guaranteed by section 7114 of the Statute.
2. Notice
It is well established that proposals requiring an Agency to provide employees with notice of various matters do not directly interfere with management's rights and are negotiable, provided the proposals concern conditions of employment and do not require the release of information which otherwise is protected. See, for example, American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA 557, 561 (1991) (Defense Mapping). Matters "relating to an agency's drug testing program unquestionably concern conditions of employment." Id. at 562-63. Moreover, there is no basis on which to conclude that the notices requirement encompassed by the disputed provisions would mandate the release of otherwise protected information. Therefore, we conclude that to the extent the disputed provisions require the Agency to provide employees with notice of their contractual rights to Union representation during the drug testing process, the provisions are negotiable.
3. Summary
In conclusion, we find that Provisions 1, 4, 8, 10, 15, and 18 do not directly interfere with the Agency's rights to determine its internal security practices or to contract out. It is unnecessary to determine whether rights to Union representation provided by the provisions exceed those guaranteed by section 7114 of the Statute. Finally, as no other basis for finding the provisions nonnegotiable is asserted by the Agency or apparent to us, we conclude that Provisions 1, 4, 8, 10, 15, and 18, are negotiable.
IV. Provisions 5, 6, 9, 11, and 16
Provision 5: Article 6-Random Drug Testing
An UNSANITIZED copy of this Notice of Test will be provided to NTEU.
Provision 6: Article 7-Reasonable Suspicion Testing
A. When a supervisor or his or her designee proposes that any employee submit a urine sample for testing based upon a suspicion of illegal drug use, under the criteria in DOE 3792.3, Section 4(f), that supervisor will prepare, and submit for concurrence, a report to the management official who is designated as the Head of the Activity for collective bargaining purposes or his or her designee. Such report shall contain the evidence in support of the determination that the "reasonable suspicion" criteria in Section 4(f) have been met, including dates and times of reported or suspected illegal drug use, sources of information used to verify information in the report, and any other evidence, information, and/or circumstances which the supervisor/manager believes warrant reasonable suspicion testing.
B. If the employee is required to submit a urine specimen for analysis, a copy of this written report will accompany the employee's Notification of Test, required by DOE 3792.3, Chapter II, Section 5. A copy of the Notice and the Report will be provided to NTEU.
Provision 9: Article 7-Reasonable Suspicion Testing
An unsanitized copy of this Notice of Test will be provided to NTEU.
Provision 11: Article 8-Employee Applicant Testing
An unsanitized copy of this Notice of Test will be provided to NTEU.
Provision 16: Article 9-Incident/Occurrence Testing
An unsanitized copy of this Notice of Test will be provided to NTEU.
[Only the underscored portions of the provisions are in dispute.]
A. Positions of the Parties
1. The Agency
The Agency asserts that these provisions are nonnegotiable because they violate the Privacy Act, 5 U.S.C. § 552a. In the Agency's view, the notices sought by the Union contain private and confidential information disclosure of which would constitute a clearly unwarranted invasion of employees' personal privacy, within the meaning of exception b(6) of the Freedom of Information Act (FOIA), 5 U.S.C. § 552(b)(6). The Agency also argues that the disclosure of these documents is precluded by the Supplemental Appropriations Act of 1987, Pub. L. 100-71, § 503(e), 101 Stat. 468, 471 (1987), codified at 5 U.S.C. § 7301.
2. The Union
The Union contends that disclosure of the information in the notices encompassed by the disputed provisions would not result in an unwarranted invasion of employees' privacy. Accordingly, the Union contends that the provisions do not violate the Privacy Act. The Union asserts that employees' privacy interests in the information included in a notice of test is "de minimis" and that the Union's interest in "insuring . . . the integrity of the testing process which affects all employees[]" outweighs the employees' limited privacy interests. Reply Brief at 16 (emphasis in original).
The Union also argues that under the disputed provisions it would only "be informed of the notification of the test and not the test results." Id. Therefore, the Union asserts that disclosure of notices of tests is not barred by the Supplemental Appropriations Act of 1987.
B. Analysis and Conclusions
The duty to bargain under the Statute extends to the release and disclosure of information concerning the conditions of employment of unit employees to the extent that the disclosure is not contrary to law or regulation. For example, Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1423 (1991) (Mare Island). In this case, the Agency asserts that the disclosure of the information sought by the Union in Provisions 5, 6, 9, 11, 16, and 19 is contrary to the Supplemental Appropriations Act of 1987 and the Privacy Act.
The Supplemental Appropriations Act of 1987 prohibits, with exceptions not relevant here, disclosure of an employee's drug test results. The plain wording of the disputed provisions, however, does not require the release of drug test results. Moreover, the Union asserts that, under these provisions, it "would only be informed of the notification of the test and not the test results." Reply Brief at 16. As the Union's statement of intent is consistent with the plain wording of Provisions 5, 9, 11, and 16, we conclude that those provisions would not require the disclosure of the results of drug tests and, therefore, are not inconsistent with the Supplemental Appropriations Act of 1987.
The Privacy Act generally prevents the disclosure of personal information about Government employees without their written consent. However, the Privacy Act does not bar the disclosure of information that must be disclosed under the FOIA. For example, information must be disclosed under the FOIA unless such disclosure "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).
In determining whether requested information is barred from disclosure by FOIA exemption (b)(6), an individual's right to privacy must be balanced against the public interest in having the information disclosed. See Mare Island, 38 FLRA at 1424-25. Applying the balancing test here, we find that the balance favors the disclosure of the information sought by the Union in Provisions 5, 9, 11, and 16. However, the disclosure of the information sought by Provision 6 is contrary to the provisions of the Privacy Act.
1. Provisions 5, 9, 11, and 16
We conclude that the disclosure of the notices of tests required by Provisions 5, 9, 11, and 16 will facilitate the Union's ability to effectively represent unit employees and is in the public interest. We agree with the Union's uncontradicted assertion that disclosure of such notices would enable the Union to monitor the Agency's compliance with statutory and regulatory provisions applicable to drug testing. We also note the Union's uncontradicted assertion that disclosure of the identities of employees subject to drug testing would enable the Union to determine whether, for example, certain employees or groups of employees were selected for testing in a discriminatory manner. These are important Union representational responsibilities as well as important public. Indeed, "the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them . . . safeguards the public interest [and] contributes to the effective conduct of public business . . . ." 5 U.S.C. § 7101(a)(1).
Although an employee has privacy interests in his or her notice of test, those interests appear to be minimal, particularly with respect to notices of random drug testing and to notices of employee applicant testing. These latter notices reveal only that an employee holds a position subject to random testing or that an employee has been tentatively selected for a position subject to such testing. We have no basis on which to conclude that these matters involve significant employee privacy interests.
Notices involving reasonable suspicion and incident/occurrence testing implicate more significant privacy interests in that they are based on individual employee actions or behaviors the disclosure of which may be embarrassing to the employee. Moreover, with respect to reasonable suspicion testing, the notice is based on and inherently reveals a belief by the Agency that the employee is engaging in unlawful conduct. However, unlike Provision 6, which is discussed below, there is no indication in the record that the notices of reasonable suspicion and incident/occurrence testing encompassed by Provisions 9 and 16 would include specific or particular references to the bases for the tests. The notices would reveal only the facts that employees were to be tested on the bases of reasonable suspicion or a particular incident or occurrence; the notices would not reveal the particular facts of the suspicion or incident/occurrence.
In our view, the public interest in disclosure to the Union of the notices encompassed by Provisions 5, 9, 11, and 16, outweighs the employees' privacy interests in such notices. We note that disclosure would be made only to the Union and only for the purpose of performing its representational functions. Moreover, the provisions do not require broad disclosure of information in which employees have significant privacy interests. Compare U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346, 1360-66 (1990), petition for review filed sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, No. 90-1613 (D.C. Cir. Dec. 27, 1990) (provision requiring blanket disclosure to the union of all proposed and final disciplinary and adverse actions involving unit employees who had not designated the union as their representative held to conflict with the Privacy Act). Accordingly, we conclude that Provisions 5, 9, 11, and 16 would not result in an unwarranted invasion of employees' privacy, within the meaning of exemption b(6) of the FOIA. See American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 332-34 (1990), petition for review filed sub nom. United States Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, No. 91-1031 (D.C. Cir. Jan. 16, 1991).
As disclosure of the information encompassed by Provisions 5, 9, 11, and 16 would not result in a clearly unwarranted invasion of employees' privacy, disclosure is both required by the FOIA and not barred by the Privacy Act. As the alleged conflict with the Privacy Act is the Agency's sole basis for asserting that these provisions are nonnegotiabe, and as no other basis for finding them nonnegotiable is apparent to us, we find that Provisions 5, 9, 11, and 16 are negotiable.
2. Provision 6
Unlike the previously discussed provisions, Provision 6 requires the disclosure of not only the notice of reasonable suspicion testing but also a written report addressing the reasonable suspicion. Section A of Provision 6, which is not in dispute, states the following about the written report:
Such report shall contain the evidence in support of the determination that the "reasonable suspicion" criteria . . . have been met, including dates and times of reported or suspected illegal drug use, sources of information used to verify information in the report, and any other evidence, information, and/or circumstances which the supervisor/manager believes warrant reasonable suspicion testing.
We note at the outset that the Agency offers no argument in support of its disapproval of the first disputed sentence in Provision 6, which requires disclosure of the notice and written report to the affected employee. Moreover, the Privacy Act would not bar release of this information to the affected employee. In fact, section 4(c) of the Federal Personnel Manual Letter 792-19 (Dec. 27, 1989) requires agencies to provide employees subjected to reasonable suspicion testing with "notice of the circumstances leading to the decision to test them . . . ." Accordingly, noting the absence of an assertion to the contrary, we conclude that the first sentence in Provision 6 is negotiable.
The second disputed sentence in Provision 6 requires disclosure of the notice and written report to the Union. Applying the balancing test to this sentence, we find that employees' privacy interests in the written report encompassed by the provision outweigh the public interest in disclosure of the report to the Union.
There is a critical distinction between an employee's privacy interests in a notice requiring him/her to report for drug testing and the privacy interests in a report detailing the basis for reasonable suspicion testing. As noted previously, disclosure of the notice of reasonable suspicion testing reveals the fact that an employee is subject to such testing. On the other hand, the report encompassed by Provision 6, as defined by the parties in section A, will specify details concerning suspected illegal drug use, including dates and times of such suspected use, and the source of the information used to verify the report. Consequently, disclosure of the report will reveal highly personal information in a context of suspected illegal drug use.
Although disclosure of the information encompassed by Provision 6 could assist the Union in performing its representational functions,(4) we conclude that the sensitive and personal nature of the information disclosed in the written report mandated by Provision 6 implicates significant privacy interests which outweigh the public interest in disclosure to the Union. Therefore, we conclude that the disclosure required by the second sentence in Provision 6 would result in a clearly unwarranted invasion of the employees' personal privacy, within the meaning of exemption b(6) of the FOIA, and is, therefore, barred by the Privacy Act. Compare National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA No. 88, slip op. at 26-28 (1991) (provision requiring disclosure to union of written reports underlying reasonable suspicion testing was held negotiable because the agency acknowledged that the reports were maintained in an agency system of records for which the union was identified as a routine user).
Because we have found that Provision 6 violates the Privacy Act, we need not address the Union's contention that Provision 6 is an "appropriate arrangement" under section 7106(b)(3) of the Statute. See American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1083 (1990). Section 7106(b)(3) does not make negotiable a matter which is inconsistent with a law other than the Statute.
3. Summary
In conclusion, disclosure of the information encompassed by Provisions 5, 9, 11, and 16 would not result in a clearly unwarranted invasion of personal privacy, within the meaning of exemption b(6) of the FOIA, and, therefore, is not barred by the Privacy Act. Furthermore, these provisions are not inconsistent with the Supplemental Appropriations Act of 1987. Accordingly, Provisions 5, 9, 11, and 16 are negotiable.
There is no basis on which to conclude that the first disputed sentence in Provision 6 is nonnegotiable. Therefore, we conclude that Provision 6, the first disputed sentence, is within the Agency's duty to bargain. However, disclosure of the information required by the second disputed sentence in Provision 6 would constitute a clearly unwarranted invasion of an employee's privacy, within the meaning of exemption b(6) of the FOIA. Therefore, such disclosures are barred by the Privacy Act. Accordingly, the second disputed sentence in Provision 6 is inconsistent with law and is nonnegotiable.
V. Provisions 3, 7, 12, 13, and 14
Provision 3: Article 6-Random Drug Testing
Employees shall be provided with written notification when requested to appear for Testing Designated Pool random urinalysis specimen collection. This collection shall take place the next work day after the written notification, unless the next day is a Saturday, Sunday, Federal legal holiday, or the employee's regular day off under alternate work schedule, in which case the specimen collection shall take place the same day as the notification.
Provision 7: Article 7-Reasonable Suspicion Testing
E. Employees shall be provided with written notification when requested to appear for reasonable suspicion urinalysis specimen collection. This collection shall take place the next work day after the written notification, unless the next day is a Saturday, Sunday, Federal legal holiday, or the employee's regular day off under alternate work schedule, in which case the specimen collection shall take place the same day as the notification.
Provision 12: Article 8-Employee Applicant Testing
C. Any employee applicant who has been tentatively selected for a TDP vacancy, pending the outcome of urinalysis testing, will receive a Notice of the scheduling of the collection of their urine specimen for analysis. This collection shall take place the next work day after the Notice. A copy of this notice will be provided to NTEU.
Provision 13: Article 8-Employee Applicant Testing
D. Employees shall be provided with written notification when requested to appear for employee applicant urinalysis specimen collection. This collection shall take place the next work day after the written notification, unless the next day is a Saturday, Sunday, Federal legal holiday, or the employee's regular day off under alternate work schedule, in which case the specimen collection shall take place the same day as the notification.
Provision 14: Article 9-Incident/Occurrence Testing
Employees shall be provided with written notification when requested to appear for incident/occurrence urinalysis specimen collection. This collection shall take place the next work day after the written notification, unless the next day is a Saturday, Sunday, Federal legal holiday, or the employee's regular day off under alternate work schedule, in which case the specimen collection shall take place the same day as the notification.
[Only the underscored portions of the provisions are in dispute.]
A. Positions of the Parties
1. The Agency
The Agency asserts that Provisions 3, 7, 12, 13, and 14 are nonnegotiable because they interfere with the Agency's rights to determine its internal security practices and to assign work under section 7106(a)(1) and (a)(2)(B) of the Statute. In the Agency's view, the provisions impermissibly restrict management's rights to test employees and remove illegal drug users from sensitive positions.
2. The Union
The Union contends that the provisions do not interfere with the Agency's right to determine its internal security practices. The Union also argues that Provisions 3, 7, 12, 13, and 14 have "absolutely no bearing on the Agency's right to assign work." Reply Brief at 21. In the Union's view, the provisions "merely set[] out the timing of the test and management is still permitted to test employees the next work day." Id. at 23.
Alternatively, the Union argues that these provisions constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. The Union contends that the provisions would allow an employee to ameliorate the potential adverse effects of a positive drug test by allowing employees to: (1) discuss with family or clergy whether he or she should enter a rehabilitation program; (2) decide whether he or she should resign; or (3) obtain documentation that any positive result is based on the use of prescription drugs.
B. Analysis and Conclusions
We conclude that Provisions 3, 7, 12, 13, and 14 are nonnegotiable because they excessively interfere with the Agency's right to determine its internal security practices. Therefore, these provisions do not constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute.
In American Federation of Government Employees, Local 3457 and U.S. Department of the Interior, Minerals Management Service, Southern Administrative Service Center, New Orleans, Louisiana, 37 FLRA 1456 (1990) (Member Talkin concurring) (Minerals Management Service), we held that proposals requiring the agency to notify employees 24 hours in advance that they would be tested for illegal drugs were nonnegotiable. We concluded that the proposals directly interfered with management's right to determine its internal security practices under section 7106(a)(1) of the Statute by limiting the Agency's ability to conduct unannounced random drug tests.
Similarly, the provisions in this case, under certain circumstances, require a delay of one work day between an employee's notice of test and the test itself. Therefore, for reasons expressed fully in Minerals Management Service, we conclude that Provisions 3, 7, 12, 13, and 14 directly interfere with the Agency's ability to determine its internal security practices.
Although the disputed provisions directly interfere with the Agency's right to determine its internal security practices, they are nonetheless negotiable if they constitute appropriate arrangements under section 7106(b)(3) of the Statute. In determining whether a proposal is an appropriate arrangement for adversely affected employees, we first determine whether it is intended to be an arrangement for employees adversely affected by the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (KANG).
The Union asserts that these provisions constitute arrangements for employees who are adversely affected by the implementation of the Agency's drug testing program. We agree. In particular, it is reasonably foreseeable that employees whose drug tests are positive also will be disciplined. In fact, some form of discipline is required in such situation. See, for example, Executive Order 12564, section 5(b) ("Agencies shall initiate action to discipline any employee who is found to use illegal drugs[.]"). As asserted by the Union, the disputed provisions would provide employees with an opportunity to, among other things, consider the ramifications of a possible positive test and discuss those ramifications with others. We conclude, therefore, that these provisions constitute arrangements, within the meaning of section 7106(b)(3) of the Statute.
Having concluded that the provisions constitute arrangements for adversely affected employees, we now consider whether they are appropriate within the meaning of section 7106(b)(3) of the Statute or whether they are inappropriate because they excessively interfere with the exercise of management's rights. To determine whether the arrangements are appropriate, the Authority weighs the competing practical needs of employees and managers. KANG, 21 FLRA at 31-32.
As noted above, the disputed provisions would benefit employees by allowing them to consider the impact that drug testing will have on them. Employees who use illegal drugs would particularly benefit in that the provisions would provide them an opportunity to consider whether to take actions, including resigning from their positions or admitting drug use, to attempt to avoid the consequences of a positive drug test.
On the other hand, the burden placed on Agency management by these provisions is significant. The provisions would require, in many circumstances, a 24-hour delay in drug testing. This delay may affect the efficacy of drug testing itself. See Minerals Management Service, 37 FLRA at 1464.
On balance, we conclude that the burden placed by these provisions on the Agency's right to determine its internal security practices outweighs the benefits accorded to employees. Accordingly, we conclude that Provisions 3, 7, 12, 13, and 14 excessively interfere with management's right to determine its internal security practices and do not constitute appropriate arrangements within the meaning of section 7106(b)(3) of the Statute. Moreover, although we previously found, in connection with Provision 11, that requiring the Agency to provide the Union with a copy of a notice of employee applicant testing was negotiable, the portion of Provision 12 requiring notice appears to encompass the 24-hour delay discussed above. As such, the portion of Provision 12 requiring such notice is nonnegotiable. Consequently, Provisions 3, 7, 12, 13, and 14 are outside the Agency's duty to bargain. In view of our determination, we do not address the Agency's assertions that the disputed provisions directly interfere with its right to assign work.
VI. Provision 2
Provision 2: Article 5-Rehabilitation
D. 1. While undergoing formal treatment during a rehabilitation program for the use of illegal drugs, an employee shall be exempted from reasonable suspicion drug testing pending completion of the drug rehabilitation program, not to exceed thirty (30) calendar days.
2. The time during which an employee will be exempted by the DOE from reasonable suspicion drug testing will be extended if the employee provides appropriate documentation from the head of the rehabilitation program or his/her designee.
A. Positions of the Parties
1. The Agency
The Agency asserts that Provision 2 is nonnegotiable because it directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute and to determine its internal security practices under section 7106(a)(1) of the Statute.
2. The Union
The Union contends that Provision 2 does not interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute because "[p]roviding a urine sample is not an employee assignment." Reply Brief at 24. The Union also argues that the provision would not interfere with the Agency's right to determine its internal security practices.
The Union argues that the provision only requires the Agency to provide an affected employee with reasonable accommodation, based on his or her status as an individual handicapped by substance abuse, under the terms of the Rehabilitation Act.(5) The Union asserts that employees who admit substance abuse would be denied an opportunity for rehabilitation if the Agency forced them to take a drug test during rehabilitation because, according to the Union, such a drug test likely would find the continued presence of illegal substances, which are detectable for extended periods of time. Noting that the Agency would be required under the Executive Order to remove employees based on a second positive test, the Union argues that a reasonable accommodation would be to give employees "a reasonable amount of time to produce a negative test." Id. at 26.
The Union also contends that Provision 2 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union argues that employees who admit drug use and agree to rehabilitation should not be threatened by dismissals based on second positive tests until they have had an opportunity to complete rehabilitation.
B. Analysis and Conclusions
We reject the Union's assertion that Provision 2 "simply entitles [an] employee to his/her rights under the Rehabilitation Act." Reply Brief at 27. The Union cites no provision of the Rehabilitation Act of 1973, as amended (the Act), 29 U.S.C. § 701 et seq., which would preclude the Agency from conducting reasonable suspicion drug testing during an employee's rehabilitation period. Moreover, section 7(8) of the Act, 29 U.S.C. § 706(8)(C), as amended by the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 512, 104 Stat. 327, provides the following with respect to the definition of "individual with handicaps" under the Act:
(C)(i) For purposes of subchapter V of this chapter, the term "individual with handicaps" does not include an individual who is currently engaging in the illegal use of drugs, when a covered entity acts on the basis of such use.
(ii) Nothing in clause (i) shall be construed to exclude as an individual with handicaps an individual who--
(I) has successfully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use;
(II) is participating in a supervised rehabilitation program and is no longer engaging in such use; or
(III) is erroneously regarded as engaging in such use, but is not engaging in such use;
except that it shall not be a violation of this chapter for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in subclause (I) or (II) is no longer engaging in the illegal use of drugs.
See also H. Conf. Rep. No. 101-336, 101st Cong., 2d Sess., reprinted in 1990 U.S. Code Cong. & Admin. News 565, 597 (joint explanatory statement accompanying the Americans With Disabilities Act of 1990 stated that nothing in amendments to 29 U.S.C. § 706(8)(C) "shall be construed to encourage, prohibit, restrict, or authorize the conducting of testing for the illegal use of drugs.").
In view of the reference in 29 U.S.C. §706(8)(C) to drug testing and its legislative history, and as no provision of the Act precluding such testing has been cited or is otherwise apparent to us, we reject the Union's contention that "[i]f the Agency is allowed to test an employee while they are undergoing rehabilitation, the Agency has violated the Rehabilitation Act . . . ." Reply Brief at 25.
With respect to the Agency's assertion that the provision interferes with its right to determine its internal security practices, we note that in International Federation of Professional and Technical Engineers, Local 128 and U.S. Department of the Interior, Bureau of Reclamation, 39 FLRA 1500, 1525-27 (1991) (Proposal 14) (Bureau of Reclamation), we addressed a proposal which precluded the agency from administering drug tests, on a random or other basis, to employees during the first 60 days of rehabilitation. We held, as relevant here, that because the proposal established substantive criteria governing the agency's exercise of its right to determine its internal security practices, the proposal directly interfered with that right.
Provision 2 would prohibit the Agency from administering drug tests based on reasonable suspicion to employees who are in a rehabilitation program for at least the first 30 days of the program. The prohibition would be extended beyond the 30-day period if "the employee provide[d] appropriate documentation from the head of the rehabilitation program . . . ." The provision establishes a substantive criteria governing the Agency's exercise of its right to determine its internal security practices in the same way as the disputed proposal in Bureau of Reclamation. Accordingly, we conclude that Provision 2 directly interferes with management's right under section 7106(a)(1) of the Statute.
Although Provision 2 directly interferes with the Agency's right to determine its internal security practices, it is negotiable if it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. As discussed previously, we determine whether a provision constitutes an appropriate arrangement by applying the criteria set forth in KANG, 21 FLRA at 31-32.
The Union clearly intends Provision 2 as an arrangement to minimize the adverse effects of a decision by the Agency to test employees already enrolled in a rehabilitation program based on reasonable suspicion. As noted by the Union, agencies are required by the Executive Order to remove from the Federal service employees who test positive on a second drug test. Provision 2 would, among other things, provide employees with a 30-day period in which they would be exempt from both a second drug test, based on reasonable suspicion, and from dismissal based on a positive result on such test. Therefore, we conclude that Provision 2 constitutes an arrangement.
Having found that the provision constitutes an arrangement, we now determine whether the provision is "appropriate" because it does not excessively interferes with management's rights. In Bureau of Reclamation, we concluded that the disputed proposal excessively interfered with the agency's right to determine its internal security practices. We noted, in this regard, that the proposal negated the agency's right to determine whether any testing was warranted during the 60-day period to secure and safeguard the agency's property and personnel.
We reach the same conclusion here. As noted previously, Provision 2 would provide employees with a period of at least 30 days during which they would not be subject to a drug test based on reasonable suspicion and, accordingly, would not be subject to dismissal based on a positive result on such test. This, in our view, is a significant benefit to employees.
With respect to the impact on management's right, Provision 2 is unlike the disputed proposal in Bureau of Reclamation in at least two ways. First, unlike the proposal in Bureau of Reclamation, Provision 2 would not affect the Agency's right to conduct other tests, including random or post-accident testing. Moreover, Provision 2 establishes a time period of at least 30 days during which reasonable suspicion testing would be prohibited, the disputed proposal in Bureau of Reclamation established a 60-day time period. As such, the effect of Provision 2 on the Agency's right to determine its internal security practices would appear to be somewhat less than that of the proposal in Bureau of Reclamation.
Provision 2 would, however, negate the Agency's right to conduct reasonable suspicion testing for a period of at least 30 days. Such testing, by the parties' agreement, is based on a supervisor's "suspicion of illegal drug use," concurred in by a management official designated by the head of the Agency. See Attachment 2 to Union's Petition for Review at 5. Moreover, in the absence of an assertion to the contrary, we assume that the Agency's reasonable suspicion could not be based solely on the fact that an employee was participating in a rehabilitation program.
Prohibiting all testing based on reasonable suspicion for at least 30 days constitutes a severe restriction on the Agency's right to safeguard its property and personnel. In our view, the negative effect on the Agency's right to conduct reasonable suspicion testing resulting from Provision 2 outweighs the benefit to employees afforded by the provision. Therefore, we find that Provision 2 excessively interferes with the Agency's right to determine its internal security practices and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Accordingly, Provision 2 is nonnegotiable. In view of our determination, we do not address the Agency's assertion that Provision 2 interferes with its right to assign work.
VII. Provision 17
Provision 17: Article 10-Specimen Collection
C. An employee may be permitted to retain any portion of the urine specimen which exceeds the 60 milliliters required for the official sample, upon request. Collection site personnel will provide to the employee, upon request, a specimen container together with written instructions for proper storage.
A. Positions of the Parties
1. The Agency
The Agency contends that Provision 17 would interfere with its ability to control the use of specimen containers and that inability to control the containers would interfere with its ability to conduct drug tests. Accordingly, the Agency concludes that the provision directly interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. The Agency further argues that if the containers are provided for purposes other than immediate specimen collection, the contractor will be unable to maintain "accountability" of the containers. Statement of Position at 8.
2. The Union
The Union contends that Provision 17 would not affect the Agency's right to determine its drug testing techniques and does not directly interfere with the Agency's internal security practices.
B. Analysis and Conclusions
We note that the Agency did not reference the first sentence of Provision 17 in its disapproval and that neither party presents arguments concerning that sentence in their submissions to the Authority. Therefore, we will not address it further.
With respect to the second sentence of Provision 17, we reject the Agency's contention that it directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.
An agency's right to determine internal security practices includes the right to determine and implement policies and actions to secure or safeguard its personnel, physical property, and operations against internal or external risks. For example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, Washington, D.C., 39 FLRA 291, 294 (1991). As noted previously, this right includes the right to establish certain drug testing programs. For example, Bureau of Reclamation, 39 FLRA at 1526-27.
Provision 17 would not affect the Agency's decision to conduct drug tests or the manner in which such tests are conducted. Moreover, Provision 17 would not affect the Agency's ability to safeguard specimen containers. Rather, the provision would require only that collection site personnel provide an employee with a specimen container. Under Provision 17, the Agency would remain free to establish and administer any system it desired to differentiate between containers with specimens for Agency-conducted testing and those provided to employees. Stated succinctly, Provision 17 would not prevent the Agency from imposing controls to protect the integrity of the specimen or the testing process.
We find, therefore, that Provision 17 does not directly interfere with management's right under section 7106(a)(1) of the Statute to determine its internal security practices. Therefore, as no other basis for finding the provision nonnegotiable is asserted by the Agency or is apparent to us, we conclude that Provision 17 is negotiable.
VIII. Order
The Agency must rescind its disapproval of Provisions 1, 4, 5, 6 (the first sentence), 8, 9, 10, 11, 15, 16, 17, and 18.(6) The petition for review of Provisions 2 (the second sentence), 3, 6 (the second sentence), 7, 12, 13, and 14 is dismissed. We do not address Provision 2, the first sentence, because no negotiability dispute concerning it is before us.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Agency withdrew its disapproval of Article 12, Section C, and the Union states, in its reply brief, that the parties reached agreement on the last sentence of Article 12, Section A. Accordingly, those provisions will not be addressed in this decision.
2. The Agency also filed two supplemental submissions, the first of which is opposed by the Union. As our Regulations do not provide for such submissions, and as the record is sufficient for us to resolve the issues in this case, we have not considered the Agency's supplemental submissions.
3. Employee applicant testing encompasses "[a]ny employee applicant who has been tentatively selected for a [testing designated position] vacancy[.]" Attachment 2 to Union's Petition for Review at 6. In the absence of an assertion to the contrary, and consistent with the reference to "employee," we assume that employee applicants are existing unit employees. Reasonable suspicion testing encompasses testing based on, as relevant here, an Agency official's "suspicion of illegal drug use" by an employee. Id. at 5. The record before us does not define incident/occurrence testing. We assume that such testing follows "an accident or unsafe practice[,]" as encompassed by section 3(c) of Executive Order 12564.
4. At a minimum, such disclosure would enable the Union to monitor the manner in which the Agency complies with its drug testing procedures and the consistency with which it applies the criteria relating to reasonable suspicion. As noted in connection with Provisions 5, 9, 11, and 16, these are important Union representational responsibilities and reflect significant public interests.
5. We assume that the Union refers to the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq.
6. In finding these provisions to be negotiable, we make no judgment as to their merits.