Machinists Local 830 and Naval Ordnance Station Louisville (Authority decision, April 23, 1991)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union proposed delaying drug testing until the Supreme Court ruled on the constitutionality of federal employee testing. The Authority could not determine what effect the proposal would have because the union had not explained its meaning and intent. Without a sufficient record, the Authority dismissed the negotiability petition. It did not decide whether the proposal was an appropriate arrangement.

Decision snapshot

• Authority: 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Petition dismissed for an insufficient record; negotiability not decided.
• Key point: The union had to explain the proposal well enough for a negotiability ruling.

Full text (FLRA public release)

[ v40 p354 ]

40:0354(35)NG

The decision of the Authority follows:

40 FLRA No. 35

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS

LOCAL LODGE 830

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL ORDNANCE STATION

LOUISVILLE, KENTUCKY

(Agency)

0-NG-1914

DECISION AND ORDER ON NEGOTIABILITY ISSUE

April 23, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The case
concerns the negotiability of a proposal requiring the Agency
to postpone the implementation of its drug testing program
until the Supreme Court has ruled on the constitutionality of
drug testing programs in the Federal sector. For the following
reasons, we dismiss the Union's petition for review.

II. Proposal

It is agreed and understood that drug-testing for
bargaining unit employees shall be held in abeyance
until such time that the U.S. Supreme Court rules on
the constitutionality of drug testing programs in the
Federal sector.

III. Positions of the Parties

1. Agency

The Agency contends that the proposal would
require it "to halt drug testing procedures pending
disposition of the litigation of current court
challenges, including appeals to the Supreme Court."
Agency Statement of Position (Agency Statement) at
2-3. The Agency argues that the proposal directly
interferes with management's right to determine its
internal security practices under section 7106(a)(1)
of the Statute "because it would prevent the [Agency]
from carrying out its drug testing program in
accordance with [G]overnment policy and [A]gency
regulation." Id. at 3.

The Agency cites American Federation of
Government Employees, Local 2185 and Tooele Army
Depot, Tooele, Utah, 31 FLRA 45, 57-60 (1988) (Tooele
Army Depot), wherein the Authority found to be
nonnegotiable a proposal requiring that the agency
postpone implementation of its drug testing program
until all lawsuits filed by the union or by unit
employees had been resolved. The Agency asserts that
although the proposal in Tooele Army Depot postponed
drug testing until all lawsuits filed by the union
and unit employees had been resolved, and the
proposal in this case postpones testing until the
Supreme Court has ruled on the constitutionality of
drug testing in the Federal sector, that difference
does not render the proposal in this case negotiable.

The Agency notes that the proposal in this case
conditions drug testing on a Supreme Court decision
"without any consideration as to when or how such an
appeal . . . might occur." Agency Statement at 4.
The Agency contends that the proposal would therefore
postpone implementation of its drug testing program
without a guarantee that any such appeal would ever
reach the Supreme Court and concludes that, under the
proposal, no testing of unit employees would ever
occur.

The Agency also asserts that although the Union
does not claim that the proposal constitutes an
appropriate arrangement within the meaning of section
7106(b)(3) of the Statute, the proposal "does not
meet the criteria necessary to be considered an
appropriate arrangement . . . ." Id. at 5. The
Agency argues that the proposal excessively
interferes with management's right to determine its
internal security practices because the proposal
could "unduly prevent implementation of drug
testing[.]" Id. at 5-6.

2. Union

The Union contends that the proposal does not
interfere, "in any way," with management's right to
determine its internal security practices. Petition
for Review at 1. The Union did not file a response
to the Agency's statement of position.

IV. Analysis and Conclusions

The proposal in this case requires the Agency to
postpone implementation of its drug testing program
for unit employees until "the U.S. Supreme Court
rules on the constitutionality of drug testing
programs in the Federal sector." As worded, the
proposal does not distinguish among the types of drug
tests, for example, random testing, applicant
testing, reasonable suspicion testing, or
post-accident testing. Further, the proposal also
does not distinguish the drug testing program of the
Agency from that of other agencies. The proposal
does not distinguish between drug testing programs
that were established under Executive Order No. 12564
and those that were not. The Union, moreover, offers
no explanation as to the meaning and intent of the
proposal.

The proposal could mean that the Agency must
postpone testing only until the Supreme Court has
ruled on the constitutionality of some type of drug
testing, under some drug testing program, at some
Federal agency. Interpreted in this manner, the
condition prescribed by the proposal has already been
met and the proposal is moot. In National Treasury
Employees Union v. Von Raab, 109 S. Ct. 1384 (1989),
the Supreme Court held that the drug testing program
established by the U.S. Customs Service to test
employee applicants for promotion to specific types
of positions did not violate employees' rights under
the Fourth Amendment of the U.S. Constitution.

The proposal could also mean that the Agency must
postpone testing until the Supreme Court has ruled on
the constitutionality of each type of testing, under
every form of testing program, at each Federal
agency. It is unlikely, however, that the Supreme
Court would grant review in all of the cases that it
would take to decide the constitutionality of all
types of testing, under all forms of testing program,
at all Federal agencies. Accordingly, under this
interpretation, the proposal clearly would prevent
the Agency from ever implementing its drug testing
program.

Even if we assume that the proposal is merely
intended to postpone implementation of the Agency's
drug testing program until the Supreme Court has
ruled on the constitutionality of some type of
testing under the Agency's own drug testing program,
the proposal would, in effect, prevent the Agency
from conducting drug tests. Because review by the
Supreme Court of a case involving an aspect of the
Agency's drug testing program would be in the
discretion of the Court, and not by right, the
Supreme Court might never grant review to rule on the
constitutionality of that program. Moreover, should
the Agency prevail in the courts below, the losing
party could preclude the Supreme Court from resolving
the constitutional question by simply failing or
refusing to appeal the case to the Court. Compare
Tooele Army Depot, 31 FLRA at 58 (under the proposal
in dispute, the union and unit employees could
prevent the agency's drug testing program from taking
effect by continuing to file lawsuits).

Delay in implementing a drug testing program does
not in and of itself render nonnegotiable a proposal
causing that delay. See, for example, International
Federation of Professional and Technical Engineers,
Local 128 and U.S. Department of the Interior, Bureau
of Reclamation, 39 FLRA No. 133 (1991) (Proposal 1)
(proposal delaying implementation of drug testing
until negotiations are completed held to be
negotiable). Consequently, there may be
circumstances in which a proposal to postpone
implementation of a drug testing program pending a
decision by the Supreme Court would be negotiable.
In the absence of an explanation by the Union of the
intent of the proposal, however, there is a range of
possible interpretations of the proposal, some of
which would render the proposal nonnegotiable because
they would have the effect of preventing the Agency
from conducting any drug testing. See Tooele Army
Depot, 31 FLRA at 58-59.

It is well established that the parties bear the
burden of creating a record upon which the Authority
can make a negotiability determination. National
Federation of Federal Employees, Local 1167 v. FLRA,
681 F.2d 886, 891 (D.C. Cir. 1982), aff'g National
Federation of Federal Employees, Local 1167 and
Department of the Air Force, Headquarters, 31st
Combat Support Group (TAC), Homestead Air Force Base,
Florida, 6 FLRA 574 (1981). A party failing to meet
this burden acts at its peril. Consequently, we will
dismiss the Union's petition for review. 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, 1103 (1991).

Because the Union did not explain the meaning and
intent of the proposal, we are unable to determine
whether the proposal would have the effect of
preventing the Agency from implementing its drug
testing program or, for example, would merely delay
implementation until completion of pending Supreme
Court review of that program. We conclude,
therefore, that the record in this case is not
sufficient for us to rule on the negotiability of the
proposal.

Finally, because we are dismissing the Union's
petition for review on the grounds that the record is
insufficient for us to make a negotiability
determination, we do not reach the question of
whether the proposal is an appropriate arrangement
within the meaning of section 7106(b)(3) of the
Statute.

V. Order

The Union's petition for review is dismissed.

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