33:0493(66)NG - - NFFE Local 1437 and Army Armament Research, Development and Engineering Center, Dover, NJ - - 1988 FLRAdec NG - - v33 p493



[ v33 p493 ]
33:0493(66)NG
The decision of the Authority follows:


33 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1437

and

U.S. ARMY ARMAMENT RESEARCH, DEVELOPMENT

AND ENGINEERING CENTER

DOVER, NEW JERSEY

0-NG-1318

(31 FLRA 101)

DECISION AND ORDER ON NEGOTIABILITY ISSUE ON REMAND

October 28, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. U.S. Army Armament Research, Development and Engineering Center, Dover, New Jersey v. FLRA, No. 88-1289 (D.C. Cir. July 18, 1988). The court granted the motion of the U.S. Army Armament Research, Development and Engineering Center, Dover, New Jersey (the Agency) to remand the case to the Authority so that the Authority could further consider its decision in light of the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS) on April 11, 1988 ("final Guidelines").

On February 16, 1988, the Authority issued its decision and order on negotiability issues in National Federation of Federal Employees, Local 1437 and U.S. Army Armament Research, Development and Engineering Center, Dover, New Jersey, 31 FLRA 101 (1988) (Dover). The collective bargaining proposals submitted by the National Federation of Federal Employees, Local 1437 (the Union) in Dover related to the Agency's testing of selected categories of civilian employees for drug abuse. The Authority found two proposals (Proposals 4 and 10) to be negotiable and four proposals to be nonnegotiable. The Agency accepts the Authority's negotiability determination as to Proposal 4 and, therefore, that proposal is no longer at issue. Agency's Letter to the Authority dated October 11, 1988. See also Agency's Supplemental Brief at 1.

On April 11, 1988, the final Guidelines were issued. On April 13, 1988, the Agency petitioned the court for review of the Authority's decision as to Proposal 10. On May 23, 1988, the Agency filed a motion with the court requesting remand of the case to the Authority. On July 18, 1988, the court granted the Agency's motion and remanded the case to the Authority to permit it to further consider its decision in Dover in light of the final Guidelines.

On September 9, 1988, the Authority requested the parties to submit supplemental briefs addressing the applicability of the final Guidelines to Proposal 10. Both parties submitted supplemental briefs.

Proposal 10 provides that after a positive initial urinalysis test, the urine sample is to be divided into two parts. One part of the sample is to be sent to a laboratory for confirmation of the positive test result and the other part is to be retained in freezer storage at the installation clinic. If the laboratory test confirms a positive result, the employee may have the retained portion of the urine sample tested at a laboratory of the employee's choice, at the employer's expense. For the reasons stated below, we find that Proposal 10 is moot.

II. Proposal 10

Upon a positive urinalysis test, each sample will be divided with half being sent to a remote laboratory and half being retained in freezer storage at the installation clinic. Upon a positive confirmation of the first sample, the employee shall have the option of having a test performed on the retained sample by either a certified laboratory utilized by the military for confirmatory testing or by a laboratory of the employee's choosing. The employer shall pay the cost of each retesting.

A. Positions of the Parties

The Agency contends that Proposal 10 is intended to be read together with Proposal 9, which the Authority found to be nonnegotiable in Dover, 31 FLRA at 111-12, and which specifically applies to field testing. According to the Agency, Proposal 10 concerns "on-site field testing followed by off-site confirmatory testing of positive specimens." Agency's Supplemental Brief at 7. The Agency states that because the final Guidelines prohibit on-site testing, it amended its drug testing procedure and no longer conducts field testing of civilians. Agency's Supplemental Brief at 7. The Agency argues that because Proposal 10 pertains to field testing, which is no longer being conducted by the Agency, the proposal is, therefore, moot. Agency's Supplemental Brief at 9.

The Agency also contends that Proposal 10 is inconsistent with provisions of the final Guidelines, which are Government-wide regulations. Agency's Supplemental Brief at 1. The Agency contends that because the final Guidelines preclude field testing and Proposal 10 specifically applies to a situation in which field testing is used, the proposal is inconsistent with the final Guidelines.

The Agency further argues that a split sample as provided for in Proposal 10 is inconsistent with the final Guidelines because HHS considered but expressly rejected a split sample procedure. 53 Fed. Reg. 11971. Additionally, the Agency argues that the final Guidelines require that the entire specimen be shipped to the certified laboratory for testing. Agency's Supplemental Brief at 5, 6.

The Agency contends that the final Guidelines provide that the Medical Review Officer may review only the results of the official urinalysis performed by a certified laboratory. Section 2.7(b), final Guidelines, 53 Fed. Reg. 11985. The Agency argues that the Medical Review Officer would be prohibited from considering data from a laboratory which was not certified. Agency's Supplemental Brief at 6. The Agency contends that Proposal 10 would permit the employee, in selecting a laboratory for confirmatory testing, to choose a laboratory which was not certified. Agency's Supplemental Brief at 8.

The Agency further argues that the Medical Review Officer's assessment is the only determination which may be relied on by the Agency in making a decision regarding an employee's alleged drug use. Section 2.7, final Guidelines, 53 Fed. Reg. 11985, Executive Order 12564 § 5(f). Agency's Supplemental Brief at 9. The Agency contends that the function of the Medical Review Officer, to determine whether a retesting is required and to review data for sufficiency, provides the safety required for a reliable program, and, therefore, there is no need for split samples or independent analysis. Section 2.7(e) and (g), final Guidelines, 53 Fed. Reg. 11986. Agency's Supplemental Brief at 8.

Finally, the Agency contends that Proposal 10 would subject the Medical Review Officer's determination and the agency's action to arbitral review. Agency's Supplemental Brief at 8-9.

The Union contends that the proposal does not conflict with any of the provisions of the final Guidelines. The Union argues that Proposal 10, providing for use of split samples and independent testing of those samples, does not conflict with the final Guidelines because the final Guidelines do not address these matters. The Union contends that the Agency confuses the status of the final Guidelines with the status of the "supplementary statement of purpose" which precedes the final Guidelines in the Federal Register. Union's Supplemental Brief at 3. According to the Union, although HHS "rejected the idea of sample splitting, the Guidelines themselves do not preclude the Army from adopting such a requirement. In fact, the Guidelines make no mention of sample splitting." Union's Supplemental Brief at 3.

The Union also asserts that Proposal 10 does not conflict with the final Guidelines regarding the role of the Medical Review Officer. The Union contends that Proposal 10 "is intended to give an employee evidence which may be presented to a supervisor in order to rebut a positive finding." Union's Supplemental Brief at 3. The Union states that it believes this type of "exculpatory medical evidence" may lead to a reanalysis of a positive test result pursuant to section 2.7(e) of the final Guidelines. Union's Supplemental Brief at 4.

B. Discussion

Proposal 10 requires retention of a portion of the sample from any positive on-site test so that the employee may have that sample retested either by a certified laboratory or a laboratory of the employee's choice at the Agency's expense. The proposal would provide the employee with procedural protection in case of a preliminary positive urinalysis result. For the reasons stated below, we find that Proposal 10 is moot.

We stated in our lead drug testing decision, 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 1046 (1988), decision on remand 33 FLRA No. 60 (1988), that we would "take no position on whether field testing is permissible under the proposed Guidelines." Rock Island, 30 FLRA at 1068. We also noted, however, that if field testing was precluded by the final Guidelines, proposals which specifically concerned field testing would be moot because the circumstances which they addressed "would no longer be legally possible." Rock Island, 30 FLRA at 1069.

The final Guidelines were published after issuance of our decisions in Rock Island and Dover. The final Guidelines provide that both the initial and confirmatory screenings occur at the same location. See section 3.5, final Guidelines, 53 Fed. Reg. 11987.

Proposal 10 states that "[u]pon a positive urinalysis test, each sample will be divided with half being sent to a remote laboratory. . . ." The proposal therefore contemplates an initial on-site test, prior to sending the sample to the laboratory for confirmation. During our original review of this proposal, we found that "Proposal 10 requires retention of a portion of the sample from any positive field test . . . ." Dover, 31 FLRA at 112. We find nothing in the Union's supplementary brief to convince us that Proposal 10 would be applicable to any other testing situation. The Agency states t