22:0513(54)NG - NFFE Local 29 and Kansas City District, Corps of Engineers, Kansas City, MO -- 1986 FLRAdec NG



[ v22 p513 ]
22:0513(54)NG
The decision of the Authority follows:


 22 FLRA No. 54
 
 NATIONAL FEDERATION OF 
 FEDERAL EMPLOYEES, LOCAL 29
 Union
 
 and
 
 KANSAS CITY DISTRICT, CORPS 
 OF ENGINEERS, KANSAS CITY, MISSOURI
 Agency
 
                                            Case No. 0-NG-877
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    The petition for review in this case is before the Authority because
 of an appeal filed under section 7105(a)(2)(D) and (E) of the Federal
 Service Labor-Management Relations Statute (the Statute).  It presents
 issues concerning the negotiability of two provisions of a negotiated
 agreement which were disapproved by the Agency head pursuant to section
 7114(c) of the Statute.
 
    These provisions had been negotiated as a substitute for language
 which the parties had been ordered to adopt pursuant to a Decision and
 Order issued by the Federal Service Impasses Panel.  Department of the
 Army, Kansas City District Corps of Engineers, Kansas City, Missouri and
 Local 29, National Federation Federal Employees, 82 FSIP 145 (1983).
 
    The provisions which were disapproved and are in dispute are as
 follows:
 
          Employees must be provided with the following notification when
       participating in the Occupational Health Program:
 
                               (Provision 1)
 
          (1) Participation is strictly voluntary, (no official request
       to participate will be made);
 
          (2) Completion of any questionnaire or of any particular
       question is entirely optional on the part of each individual
       employee:
 
                               (Provision 2)
 
          (3) The collecting, processing and final disposition of medical
       specimens and information will be safeguarded to insure that only
       the employee and the employee's physician are apprised of the
       results via professional medical channels, and that no individual
       employee medical findings resulting from such services will be
       made available to agency personnel, management or supervisory
       officials.
 
          (Only the underlined portions were disapproved and, hence, are
       in dispute.)
 
                              II.  Background
 
    The dispute in this case relates to medical examinations which
 agencies must make available to employees in health hazardous
 occupations under the Occupational Safety and Health Act of 1970 (the
 Act), Executive Order No. 12196 (1980) /1/ as amended by E.O. 1223
 (1980) and Occupational Safety and Health Administration (OSHA)
 regulations.  The Act essentially authorizes the Secretary of Labor to
 issue occupational safety and health standards which, among other
 things, prescribe the type and frequency of medical examinations which
 employers are to make available to employees occupationally exposed to
 health hazards.  29 U.S.C. Section 655.  Those standards are set forth
 at 29 CFR Part 1910 (1985).  Certain Agency employees are, in the course
 of their work, exposed to hazardous substances and must use respirators.
  These employees are subject to the medical surveillance or examination
 requirements set forth in the OSHA standards.
 
    Provision 1 is intended to prevent the Agency from requiring that
 employees participate in such medical examinations and provides that
 employee participation will be voluntary.  Provision 2 seeks to prevent
 the Agency from having access to the results of those medical
 examinations.  In resolving issues raised as to the negotiability of
 these provisions, the Authority sought an advisory opinion from the
 Department of Labor on its interpretation of OSHA regulations relevant
 to the parties' dispute.  The Authority's decision here is consistent
 with that opinion which is attached to this decision as an Appendix.
 The parties were given an opportunity to present comments on the
 Department of Labor response;  however neither did so.
 
                      III.  Positions of the Parties
 
    The Agency makes the same arguments regarding both provisions.
 Briefly, they are as follows:
 
          1) The petition is moot;
 
          2) the provisions conflict with Federal statute, specifically,
       the Act;
 
          3) the provisions conflict with Government-wide rule or
       regulations, specifically, the OSHA Standards issued by the
       Secretary of Labor;  and
 
          4) the provisions conflict with agency regulations for which a
       compelling need exists, specifically, Department of Defense
       Instruction 6055.5 and Army Regulation 40-5.
 
    The Union contends that its petition is not moot.  As to the
 provisions themselves, the Union contends that they are consistent with
 law and regulations.  In response to the Agency's compelling need
 argument, the Union asserts that the regulations cited by the Agency do
 not meet the Authority compelling need criteria.
 
                               IV.  Analysis
 
                         A.  Question of Mootness
 
    The Agency contends that the Union's petition for review in this case
 is moot because the issues involved have also been raised in an unfair
 labor practice (ULP) charge.  A decision has been issued in that case.
 U.S. Army Corps of Engineers, Kansas City District, Kansas City,
 Missouri, 16 FLRA 456 (1984).  The Authority finds that the issue
 addressed in that decision is different from the issue presented in this
 case.  In the ULP case, the issue was limited to the availability of
 medical examinations to all employees except for those engaged in health
 hazardous occupations.  In this case the parties have made clear that
 the dispute about the negotiability of these two provisions is limited
 to medical examinations provided to employees in health hazardous
 occupations.  In view of the fact that Corps of Engineers, Kansas City
 did not address the issue presented in this case, the Agency's argument
 that the petition in this case is moot is rejected.
 
           B.  Conflict with Government-wide Rule or Regulation
 
    The Agency contends that OSHA regulations require that employees
 participate in the medical examinations provided and that under the
 regulations the Agency is entitled to access to the results of the
 examinations.
 
    As the Agency has noted, the standards or regulations which OSHA has
 promulgated are voluminous.  In making its determination as to this
 Agency contention, the Authority has relied on only those portions of
 the OSHA regulations which relate to those hazards and matters which the
 Agency has specifically cited as relevant to its circumstances;  that
 is, exposure to lead and asbestos and use of respirators.  If other
 portions of the OSHA regulations are relevant to the circumstances
 present in the Agency, it is the responsibility of the parties to bring
 them to the Authority's attention.  National Federation of Federal
 Employees Local 1167 v. FLRA, 681 F.2d 886 at 891 (D.C. Cir. 1982),
 affirming 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).
 
    Where employees are exposed to specified levels of asbestos and lead
 in the course of their duties, all that is required by the OSHA
 regulations is that the Agency provide or make available at its cost
 medical examination to those employees.  29 CFR 1910.1001(j) (asbestos)
 and 29 CFR 1910.1025(j) (lead).  In issuing the lead standard, /2/ OSHA
 specifically rejected making participation in the medical surveillance
 program mandatory for employees.  /3/ OSHA cited, among other things,
 "substantial personal privacy and religious concerns involved in health
 care matters" as a consideration in rejecting mandatory employee
 participation in medical surveillance.  43 Fed. Reg. 52952, 52973-4
 (1978).  See United Steelworkers of America v. Marshall, 647 F.2d 1189,
 1237-8 (D.C. Cir. 1980), cert. denied sub nom.  Lead Industries Assn.,
 Inc. v. Donovan, Secretary of Labor, 453 U.S. 913 (1981).  The
 Authority, therefore, concludes that OSHA regulations involving exposure
 to lead and asbestos which require an employer (or agency) to provide or
 make available medical examination do not mandate that employees be
 compelled to participate in these examinations.  See Industrial Union
 Department, AFL-CIO v. Hodgson, 499 F.2d 467, 485 n.45 (D.C. Cir. 1974)
 where the court, in addressing the legality of an OSHA asbestos
 standard, noted that employee participation in medical examinations is
 entirely voluntary.
 
    Moreover, neither do the OSHA regulations which govern respirator use
 mandate employee participation in medical examinations.  The OSHA
 regulations which generally deal with respirator use do not specifically
 require employees to participate in medical examinations.  29 CFR
 1910.134.  The standards relating to exposure to specific hazardous
 substances also contain provisions regarding the use of respirators.
 The language in both the asbestos and lead standards which address
 respirator use reflects the overall approach in those standards that
 participation in medical surveillance programs is voluntary on the part
 of the employees.  29 CFR 1910.1001(d) and 1910.1025(f).  See Industrial
 Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 485 (D.C. Cir. 1974)
 where the court noted that results of employee physical examinations
 were a consideration in assigning employees to jobs requiring the use of
 respirators but that the examinations were entirely voluntary insofar as
 employees were concerned.
 
    Based on the foregoing, the Agency's argument that Provision 1
 conflicts with OSHA regulations cannot be sustained.
 
    As to Provision 2, a different conclusion is in order.  In agreement
 with the Agency, the Authority finds that Provision 2 does conflict with
 the OSHA standards or regulations.  Those regulations are set forth in
 29 CFR Part 1910.  /4/ They apply to Federal employees and agencies in
 general and, therefore, are Government-wide regulations.  See National
 Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
 Orleans District, 3 FLRA 748 (1980).  Those regulations generally
 require employers (or agencies in the case of the Federal government) to
 maintain records for employees subject to medical surveillance for a
 specified period of time.  See, for example, 29 CFR 1910.1001(j)(6) and
 29 CFR 1910.1025(n)(2).  By denying the Agency access to medical records
 flowing from the medical surveillance program, Provision 2 would prevent
 the Agency from fulfilling its obligations under those regulations to
 maintain the required records.  /5/
 
                     C.  Conflict with Federal Statute
 
    By allowing employees to decline to undergo medical examinations, the
 Agency argues that Provision 1 would prevent it from fulfilling its
 obligation under the Act to keep adequate records or occupational
 accidents and illnesses.  Consequently, it asserts that Provision 1
 conflicts with the Act itself.  No provision of the Act requires
 employees to undergo medical examinations.  Moreover, as discussed
 earlier, the Secretary of Labor, who is responsible for setting the OSHA
 standards and for overseeing the administration of the Act in the
 Federal sector, has not construed the Act to require employees to
 participate in medical examinations.  Therefore, the Agency's contention
 that Provision 1 conflicts with the Act is rejected.  /6/
 
    However, as to Provision 2, we have concluded above that preventing
 Agency access to the records of medical examinations effectively
 interferes with the Agency's ability to maintain records of its required
 medical surveillance program.  These record keeping requirements flow
 from the Act itself as well as the regulations.  29 U.S.C. Section 668.
 Because of this, the Authority concludes that Provision 2 conflicts with
 29 U.S.C. Section 668 -- a Federal statute.
 
            D.  Conflict with an Agency Regulations for which a
 
                Compelling Need Exists
 
    As to Provision 1, the Agency asserts that the requirement in its
 Agency regulations for mandatory participation by employees in medical
 examinations is necessary to its achievement of a safe and healthful
 work environment.  It concludes that this objective is essential to the
 accomplishment of its mission, and therefore its regulations meet the
 illustrative standard for determining compelling need set forth at
 section 2424.11(a) of the Authority's Rules.
 
    In the Authority's view, however, the Agency has not demonstrated
 that mandatory (as opposed to voluntary) employee participation in
 medical examinations is essential (as opposed to helpful or desirable)
 to the accomplishment of its responsibility to provide employees with a
 safe and healthful working environment.  The Agency has not shown that
 voluntary participation by employees in medical examinations coupled
 with the implementation of the various other monitoring, control, and
 protective requirements set forth in the OSHA standards is not
 sufficient to allow it to fulfill its obligations with respect to
 assuring a safe and healthful work environment.  See 29 CFR 1910.1001
 and 1910.1025.  Thus, the Agency has not shown that its regulations meet
 the "essential" standard set forth in section 2424.11(a) of the
 Authority's Rules and Regulations.  See, for example, American
 Federation of Government Employees, AFL-CIO, Local 2875 and Department
 of Commerce, National Oceanic and Atmospheric Administration, National
 Marine Fisheries Service, southeast Fisheries Center, Miami Laboratory,
 Florida, 5 FLRA 441 (1981) (Union Proposal 4).
 
    With respect to the criterion found at section 2424.11(c), the Agency
 asserts that the DoD and Army regulations constitute a nondiscretionary
 implementation of a mandate of binding Government-wide regulations, that
 is, the OSHA regulations.  However, the OSHA regulations do not require
 employees to participate in medical examinations.  Therefore, the
 Agency's contention that Provision 1 conflicts with regulations which
 meet the compelling need standard set forth in section 2424.11(c) is
 rejected.
 
    The Agency makes the same arguments as to its need for its regulatory
 provisions which allow it access to the results of the medical
 examinations conducted on employees.  Because the OSHA regulations and
 the Act do require Agency access, it follows that the Agency's
 regulations reflecting this requirements are essential to the
 accomplishment of its mission and function and also implement, in a
 nondiscretionary manner, a mandate to the Agency under law.  Therefore,
 we conclude that Provision 2 conflicts with an agency regulation for
 which a compelling need exists.
 
                              V.  Conclusion
 
    The Authority finds that the petition is not moot.  We further find
 that Provision 1 does not conflict with the Occupational Safety and
 Health Act, the Occupational Safety and Health Administration
 regulations, or an agency regulation for which a compelling need exists.
  It is within the duty to bargain.  Provision 2 interfers with the
 Agency's obligation under the Occupational Safety and Health Act and the
 Occuprational Safety and Health Administration regulations to maintain
 specified records.  It, therefore, conflicts with a Federal law and a
 Government-wide rule or regulation.  Additionally, it conflicts with
 agency regulations for which a compelling need exists.  It is not within
 the duty to bargain.
 
                                VI.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency head shall rescind his
 disapproval of Provision 1 which was bargained on and agreed to by the
 parties at the local level.  /7/ IT IS FURTHER ORDERED that the Union's
 petition for review insofar as it relates to Provision 2 be, and it
 hereby is, dismissed.
 
    Issued Washington, D.C., July 11, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Executive Order No. 12196, Occupational Safety and Health
 Programs for Federal Employees, implements many of the provisions of 29
 U.S.C. Section 668, a portion of the Act which specifically applies to
 the Federal sector.  As to how the provisions of the Act and the OSHA
 regulations apply to the Federal sector, see 29 U.S.C. Section 668,
 Executive Order No. 12196 and 29 CFR Part 1960 (1985).
 
    (2) 29 CFR 1910.1025.
 
    (3) The explanatory material accompanying the issurance of that
 standard states:
 
          Upon completion of initial air monitoring, the employer must
       begin the medical surveillance program for all covered employees.
       The standard does not make participation in the medical
       surveillance program mandatory for the employee.  The employer's
       obligation is to "provide" and "make available" the medical tests
       and procedures as required.  Where employee confidence in the
       medical program exists, refusal to participate should be minimal.
       (See discussion of mandatory medical examinations in the M(edical)
       R(emoval) P(rotection) Attachment.)
 
    43 Fed. Reg. 52952, 52996 (1978).
 
    (4) Although 29 CFR 1960.17 permits adoption by agencies of altern