59 FLRA No. 151

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of two proposals relating to drug testing and work shifts of bargaining unit employees, respectively. [n1]  The Agency filed a statement of position. The Union did not respond to the Agency's statement of position.

      For the reasons set forth below, we find that the proposals are outside the duty to bargain and we dismiss the petition for review.

II.     Proposals

Proposal 1

Abolish the random drug testing in our bargaining unit. [n2] 

Proposal 2

3^rd Shift basic workweek will consist of (5) consecutive eight (8) hour days, Sunday-Thursday.

Petition for Review, ¶ 9.

III.     Meaning of the Proposals

      The post-petition conference record confirms, and there is no dispute, that Proposal 1 would prohibit the Agency from conducting random drug testing of bargaining unit employees. See Record of Post-Petition Conference at 2. In this regard, the Union claims the Agency is violating Agency regulations in testing bargaining unit employees.

      Proposal 2 was made in response to the Agency's decision to change the third shift work schedule from Sunday-Thursday to Monday-Friday. The post-petition conference confirms, and there is no dispute, that it would require the Agency to schedule the third shift basic workweek for five consecutive eight-hour work days, Sunday-Thursday. See id.

IV.     Positions of the Parties

A.     Agency

      The Agency contends that Proposal 1 affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute because it precludes the Agency from conducting any random drug testing of bargaining unit employees. According to the Agency, its mission requires aircraft operation and failure to ensure that employees directly responsible for this mission are drug-free could potentially result in the loss of aircraft and personnel. In addition, the Agency asserts that Proposal 1 is contrary to Executive Order 12564, § 3(a), which provides, in pertinent part, that "[t]he head of each Executive agency shall establish a program to test for the use of illegal drugs by employees in sensitive positions." Statement of Position at 5.

      The Agency claims that Proposal 2 violates a Government-wide regulation, 5 C.F.R. § 610.121(a), which [ v59 p831 ] allows the Agency to determine work schedules without advance notice under two circumstances: (1) when the agency has determined that such notice would seriously handicap it in carrying out its functions; and (2) when the agency determines that its costs would be substantially increased. The Agency argues that the proposal does not allow the Agency to act unilaterally in either situation since the proposal does not include any exceptions. In addition, the Agency asserts that Proposal 2 affects the Agency's right to assign work under § 7106(a)(2)(B) of the Statute and does not constitute an appropriate arrangement under § 7106(b)(3). Finally, the Agency argues that Proposal 2 concerns the numbers, types and grades of employees assigned to a tour of duty under § 7106(b)(1) of the Statute, and the Agency has elected not to bargain over the proposal.

B.     Union

      The Union did not file a response to the Agency's statement of position. In its petition for review, the Union asserts, with respect to Proposal 1, that because drug testing is not being performed in a fair and equitable manner, the morale of the workforce has been reduced. See Petition for Review at 3. In addition, the Union requests severance of the first proposal. See id. at 3-4. With respect to Proposal 2, the Union claims that the work schedule set forth in the proposal of Sunday-Thursday, as opposed to the current schedule of Monday-Friday, would improve the quality of life and morale for employees by allowing them to spend more time with their families. See id. at 6. In addition, the Union relies on two Authority decisions: (1) United States Dep't of the Navy, Phila. Naval Shipyard, 39 FLRA 590 (1991) (Phila. Naval Shipyard), an arbitration case where the Authority upheld an arbitrator's finding that the agency violated 5 C.F.R. § 610.121 when it unilaterally modified its third shift work schedule; and (2) Dep't of the Air Force, Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 32 FLRA 277 (1988) (Ogden Air Logistics), an unfair labor practice case where the Authority upheld the judge's finding that the respondent violated the Statute by not negotiating with the union concerning its decision to change the starting and quitting times for one day of a five-day shift. See Petition for Review at 6.

V.     Analysis and Conclusions

A.     Proposal 1 affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute.

      The Union does not dispute the Agency's contention that the proposal affects management's right to determine its internal security practices under § 7106(a)(1) of the Statute. Moreover, the Authority has found that management's right to determine its internal security practices under § 7106(a)(1) encompasses the right to test employees in sensitive positions on a random basis to determine whether those employees use illegal drugs. See, e.g., NTEU, 38 FLRA 79, 84 (1990). Accordingly, as the proposal would preclude the Agency from conducting any random drug testing of its employees, we find that it affects management's right to determine its internal security practices. The Union did not argue, either in its petition or the attachments thereto, that Proposal 1 constitutes a procedure or appropriate arrangement within the meaning of § 7106(b)(2) or (b)(3) or is negotiable at the election of the Agency under § 7106(b)(1). Thus, because Proposal 1 affects the Agency's right to determine its internal security practices, we conclude that it is outside the duty to bargain. [n3] 

B.     Proposal 2 is contrary to 5 C.F.R. § 610.121(a).

      Under § 7117(a)(1) of the Statute, a proposal that is inconsistent with a Government-wide regulation is outside the duty to bargain. The Authority has previously found that 5 C.F.R. § 610.121(a) is a Government-wide regulation. See AFGE, Local 1815, 53 FLRA 606, 619 (1997). That regulation explicitly permits an agency to change employees' work schedules without limitation "when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased[.]" 5 C.F.R. § 610.121(a) (§ 610.121(a)). The Authority has held that a proposal that does not allow the agency to change employees' work schedules without limitation pursuant to the situations set forth in § 610.121(a) is contrary to that regulation. See Haw. Fed. Employees Metal Trades Council, 57 FLRA 450, 452 (2001).

      Proposal 2 would require the Agency to schedule, without exception, the third shift basic workweek for five consecutive eight-hour work days, Sunday-Thursday. Thus, the proposal does not allow the Agency to change employees' work schedules when it determines that it would be seriously handicapped in carrying out [ v59 p832 ] agency functions or that its costs would be substantially increased.

      The Union did not respond to the Agency's contention that the proposal does not allow the Agency to act unilaterally in either situation set forth in § 610.121(a) and, therefore, has not alleged that the Agency has such discretion. In addition, the two decisions relied on by the Union with regard to Proposal 2 are distinguishable from the instant case. In Phila. Naval Shipyard, 39 FLRA at 604, the union grieved the agency's unilateral modification of a work schedule that had been established by contract, and the Authority upheld the arbitrator's finding that the agency had not established substantially increased costs or that it would be seriously handicapped in carrying out its functions, which would have entitled it to make unilateral changes to the work schedule pursuant to § 610.121(a). Here, the Union is seeking to negotiate contract language that does not authorize exceptions based on § 610.121(a) exceptions. In Ogden Air Logistics, 32 FLRA at 279, the Authority upheld a judge's finding that the agency was required to bargain over a change in the starting and quitting times of the disputed shift. However, there were no proposals at issue, either containing or not containing the exceptions set forth in § 610.121(a) and, consequently, no discussion in Ogden Air Logistics of whether particular proposals were negotiable.

      Consistent with the foregoing, the Union's reliance on Phila. Naval Shipyard and Ogden Air Logistics is misplaced. As such, based on the record as a whole, we find that Proposal 2 is contrary to 5 C.F.R. § 610.121(a) and, thus, outside the duty to bargain under § 7117(a)(1) of the Statute. [n4] 

VI.     Order

      The Union's petition for review is dismissed.

   The Union was ordered by the Authority's Case Control Office to correct certain procedural deficiencies in its original petition for review. Although the Union cured the deficiencies as requested, the second petition differs from the original petition as to both format and content. Specifically, the Union combined arguments regarding the two proposals, modified the wording of the first proposal(to add a phrase that was later deleted from the proposal by agreement of the parties) and dropped its request to sever the first proposal. As the Union did not make a request to make changes to its petition, and a petition filed at the time the second petition was filed would be untimely, we consider the Union's original petition in resolving this matter. We note, in this regard, that the differences between the first and second petitions did not appear to affect the Agency's statement of position.

   The wording of Proposal 1 is as modified during the Post-Petition Conference. See Record of Post-Petition Conference at 1.

   In view of this, we find that it is unnecessary to address the Agency's contention that Proposal 1 is contrary to Executive Order 12564, § 3(a). We also deny the Union's request for severance of Proposal 1. In this regard, the Union has not, pursuant to § 2424.22(c) of the Authority's Regulations, 5 C.F.R. § 2424.22(c), explained how Proposal 1 could be severed or demonstrated how potentially severed portions of the proposal could stand alone and be separately negotiable.

   Although it is unnecessary to address the Agency's additional contentions with regard to Proposal 2 in view of this finding, see AFGE, 58 FLRA 331, 332 (2003), we note that consistent with the Authority's decision in Int'l Ass'n of Fire Fighters, 59 FLRA No. 152 (Apr. 15, 2004), also issued today, the proposal also would appear to be outside the duty to bargain based on its effect on the Agency's right to assign work.