International Association of Machinists and Aerospace Workers, Lodge 282 and Department of the Army, Headquarters I Corps, Fort Lewis (Authority decision, January 27, 1988)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving a negotiability appeal. 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

Machinists Lodge 282 proposed that the Army test civilian employees for drug use only when it had probable cause. That limit would have prevented random testing in the Army's program for employees in critical jobs. The Authority found that random testing was part of the Army's internal security plan and that the proposal directly interfered with management's right to determine security practices. It dismissed the union's negotiability petition. The Authority did not decide the legality of the Army's testing program or the agency's separate regulatory argument.

Decision snapshot

• Authority: Negotiability under 5 U.S.C. § 7106(a)(1).
• Outcome: Proposal outside the duty to bargain; union petition dismissed.
• Key point: A probable cause requirement would bar random testing that formed part of the agency's internal security plan.

Full text (FLRA public release)

[ v30 p1088 ]

30:1088(117)NG

The decision of the Authority follows:

30 FLRA NO. 117
30 FLRA 1088

27 JAN 1988

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LODGE NO. 282

Unions

and

DEPARTMENT OF THE ARMY
HEADQUARTERS, I CORPS
FORT LEWIS, WASHINGTON

Agency

Case No. O-NG-1277

DECISION AND ORDER ON NEGOTIABILITY ISSUE

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of a proposal which limits management to testing employees for drug abuse only on the basis of probable cause. The effect of the proposal is to preclude management from testing employees on a random basis. We find that the proposal is outside the duty to bargain because it directly interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

II. Background

On February 10, 1986, the Department of the Army promulgated regulations implementing a Department of Defense Directive concerning civilian employee drug abuse testing. Interim Change No. Ill to Army Regulation 600-85, Alcohol and Drug Abuse Prevention and Control Program (Interim Change to AR 600-85). The proposal in dispute in this case was offered by the Union in connection with bargaining on the implementation of the Interim Change to AR 600-85, which established a drug abuse testing program for civilian employees in critical jobs.

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 No. 115 (1988), we discussed the provisions of the Interim Change to AR 600-85 and outlined in detail subsequent events having direct relevance to drug testing programs in the Executive Branch of the Federal Government in general and to the Army drug testing program in particular. Specifically, we addressed: (1) the issuance of Executive Order 12564, entitled "Drug - Free Federal Workplace"; (2) the issuance of Federal Personnel Manual Letter 792-16 (November 28, 1986), implementing section 6(a)(1) of the Executive Order; (3) the publication of the proposed "Scientific and Technical Guidelines for Drug Testing Programs," by the Department of Health and Human Services, pursuant to Section 4(d) of the Executive Order; and (4) the enactment of section 503 of the Supplemental Appropriations Act of 1987, Pub. L. No. 100-71, 101 Stat. 391, 468 (July 11, 1987). We noted that the Authority had invited interested parties to file amicus briefs addressing the negotiability of proposals relating to various aspects of agency drug testing programs. See U.S. Army Armament, Munitions and Chemical Command, slip op. at 2-5.

We also discussed Federal court litigation involving challenges to the constitutionality of the Army's drug testing program. Consistent with the decision of the U.S. Court of Appeals for the District of Columbia Circuit in NFFE v. Weinberger, 818 F.2d 935 (D.C. Cir. 1987), we concluded that the only issues properly before us concerned the negotiability of union proposals, not the legality of drug testing in the Federal Government. Consequently, to the extent that the constitutionality of the Army's drug testing program is raised in this case, we will not consider that issue. Rather, for purposes of decisions which include this issue, we will presume the validity of the Executive Order and agency drug testing programs. See U.S. Army Armament, Munitions and Chemical Command, slip op. at 5-7.

III. Proposal

Section 9. All testing will be done only for probable cause.

A. Positions of the Parties

The Agency contends that the Union's proposal conflicts with the Agency's right to determine its internal security practices by placing a "condition precedent" on the exercise of that right and by expressly limiting the Agency's right to test randomly or in conjunction with an accident or safety investigation. The Agency argues that the random testing of employees in critical positions is an essential part of the Agency's overall drug testing program which is designed to maintain national security and the internal security of the Agency. The Agency asserts that the Union's proposal would prevent the Agency from using the technique it chooses to effectuate the Agency's internal security system of maintaining a drug-free workforce in critical positions.

The Agency also contends that the proposal conflicts with an agency regulation which is supported by a compelling need. The Agency states that Army Regulation 600-85, paragraph 5-14e(1)(b) establishes testing on a random basis. The Agency states, further, that paragraph 5-14e(1)(c) and (d) permits testing when there is probable cause and in conjunction with an accident or safety investigation. The Agency maintains that the wording of the proposal and the Union's statement of intent clearly indicate that the proposal conflicts with the Army regulation. The Agency argues that the Army regulation is essential to the accomplishment of the Agency's security mission because the Agency would be unable to execute the drug testing program with any degree of effectiveness without the requirements of the regulation.

Finally, the Agency contends that the Union's proposal is neither a procedure nor an appropriate arrangement. The Agency asserts that the proposal removes an essential element from the Agency's internal security plan, thus, leaving the Agency with little discretion to determine the plan. The Agency maintains that the negative impact on management's ability to maintain an effective and efficient Government is significant and it is not outweighed by any benefits derived from the proposal.

The Union contends that the selection of employees for urinalysis testing on a periodic and random basis violates the employee's rights under the Fourth Amendment of the United States Constitution to protection from unwarranted search and seizure, privacy, and due process. The Union states that 'the Army has the right to test under probable cause if they believe an employee is under the influence of a controlled substance., Petition for Review at 1.

B. Discussion

By limiting management to testing employees for use of illegal drugs on the basis of probable cause, the effect of this proposal is to preclude testing of employees on a random basis as provided in the Interim Change to AR 600-85, Paragraph 5-14e(1)(b). In U.S. Army Armament, Munitions and Chemical Command, we found that random testing of employees in critical positions was a part of the Agency'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 the disruption of the Agency's activities. We concluded that by limiting management to testing employees only on the basis of probable cause, thereby precluding random testing, the proposal in that case directly interfered with management's right to determine its internal security practices under section 7106(a)(1) of the Statute.

Because the proposal in this case has the same effect as Proposal I in U.S. Army Armament, Munitions and Chemical Command, we conclude that the proposal is outside the duty to bargain for the reasons set forth in that case. The Union did not contend that the proposal in this case is an appropriate arrangement within the meaning of section 7106 (b)(3) of the Statute and we have not considered that issue. See U.S. Army Armament, Munitions and Chemical Command, slip op. at 12-13, for a discussion of the applicability of section 7106(b)(3) to a similar proposal. In light of our conclusion, we do not address the Agency's argument that the proposal is nonnegotiable because it conflicts with an Agency regulation for which there is a compelling need.

IV. Order

The Union's petition for review is dismissed.

Issued, Washington, D.C.,January 27, 1988.

Jerry L. Calhoun, Chairman

Jean Mckee, Member

FEDERAL LABOR RELATIONS AUTHORITY