Office of Professional Employees, International Union, Local 268 and Department of Energy (Authority decision, February 4, 1988)

Final FLRA decision. The Authority dismisses a negotiability petition for a proposal barring drug-detection dogs from agency buildings and parking lots. 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).

Plain-English summary

The Energy Department's Oak Ridge Office planned to use drug-detection dogs to examine work spaces during nonworking hours. The union proposed banning the dogs from agency buildings and parking lots. The Authority found a sufficient connection between that search practice and the office's goal of protecting its property and operations from drug-related disruption. It held that the ban directly interfered with management's right to determine internal security practices and dismissed the union's petition.

Decision snapshot

• Authority: Internal security right under 5 U.S.C. § 7106(a)(1).
• Outcome: Proposal found nonnegotiable; petition dismissed.
• Key point: A demonstrated link between a detection method and agency security concerns placed the choice of method within management's discretion.

Full text (FLRA public release)

[ v31 p9 ]
31:0009(2)NG

The decision of the Authority follows:

31 FLRA NO. 2

OFFICE OF PROFESSIONAL
EMPLOYEES, INTERNATIONAL
UNION, AFL-CIO, LOCAL 268

Union

and

DEPARTMENT OF ENERGY

Agency

Case No. O-NG-1314

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)(E) of the Federal Service Labor - Management Relations Statute (the Statute). The case concerns the negotiability of a single proposal which requires that drug-detection dogs not be used to search for drugs or contraband in agency buildings and grounds. For the reasons which follow, we hold that the proposal is outside the duty to bargain because it directly interferes with the Agency's right to determine its internal security practices under section 7106(a)(1) of the Statute.

II. Background

The Agency's Oak Ridge Office (ORO), where the bargaining unit is located, performs a number of functions including: nuclear research and development; uranium enrichment; activities related to defense and weapons programs; and oversight of the Strategic Petroleum Reserve Project. In order to provide a "work environment that is safe, productive, healthy, wholesome and free of alcohol and illegal drugs(,)" the Agency sought to implement a number of drug-detection techniques including using drug-detection dogs to examine work spaces during non-working hours. See Attachment A to Statement of Position.

III. Proposal

During impact and implementation bargaining on implementation of the Agency's policy, the Union submitted the following proposal:

DOE - ORO will not use dogs to search for drugs and/or contraband in agency buildings and parking lots.

IV. Position of the Parties

The Agency argues that the decision to use drug-detection dogs to search Agency premises is an exercise of management's rights to determine its internal security practices under section 7106(a)(1) of the Statute.

The Union contends that the use of drug-detection dogs is not a reasonable exercise of management's rights. According to the Union, the Agency has provided no basis for implementing this program because there is no indication that a drug problem exists.

V. Analysis and Conclusion

An agency's right to determine its internal security practices includes the right to determine policies and actions which are part of its plan to secure or safeguard its personnel and physical property against internal or external risks, to prevent improper or unauthorized disclosure of information, or to prevent the disruption of the Agency's activities or operations. See, for example, National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, U.S. Army Corps of Engineers, Kansas City, Missouri, 21 FLRA 233, 234 (1986), vacated and remanded as to other matters sub nom. NFFE, Local 29 v. FLRA, (D.C. Cir. Order Mar. 6, 1987), Decision on Remand, 27 FLRA 404 (1987).

According to the Agency's uncontested statements, drug and alcohol abuse has the potential to adversely affect productivity and to disrupt Agency operations which relate to national security. Statement of Position at 1. Consequently, and in order to reduce the risk of disruption to its facilities, the Agency adopted, among other things, the use of drug-detection dogs to search Agency facilities. In our view, the Agency has shown a sufficient link between its goal of safeguarding its property and operations and its chosen practice of using drug-detection dogs. We find, therefore, that the Agency's requirement constitutes an exercise of its right under section 7106(a)(1) to determine its internal security practices.

This proposal precludes the Agency from using drug-detection dogs. The Union merely claims that because no drug or alcohol problem currenty exists at the Agency's ORO the use of drug-detection dogs is unnecessary. We will not review the Agency's determination that the use of drug-detection dogs is necessary to protect the security of its installation. As indicated above, the purpose of the policy is to prevent the increased risk to security which the Agency has identified as resulting from drug or alcohol abuse by its employees. Such a judgment is committed to management's discretion under section 7106(a)(1) of the Statute. Where a link has been established between an agency's action, in this case, the use of drug-detection dogs, and the agency's expressed security concerns, we will not review the merits of the action. See 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, slip op. at 11 (1988).

In summary, we find that the Union's proposal directly interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its internal security practices and is, therefore, outside the duty to bargain.

VI. Order

The petition for review is dismissed.

Issued, Washington, D.C., February 4, 1988.

Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY