33:0512(70)NG - - IAM, Local Lodge 2424 and Army, Aberdeen Proving Ground, MD - - 1988 FLRAdec NG - - v33 p512



[ v33 p512 ]
33:0512(70)NG
The decision of the Authority follows:


33 FLRA No. 70

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS

LOCAL LODGE 2424

and

U.S. DEPARTMENT OF THE ARMY

ABERDEEN PROVING GROUND, MARYLAND

0-NG-1337

(31 FLRA 205)

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. Department of the Army, Aberdeen Proving Ground, Maryland v. FLRA, No. 88-1311 (D.C. Cir. July 18, 1988). The court granted the motion of the U.S. Department of the Army, Aberdeen Proving Ground, Maryland (the Agency) to remand this 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 22, 1988, we issued our decision and order on negotiability issues in International Association of Machinists and Aerospace Workers, Local Lodge 2424 and U.S. Department of the Army, Aberdeen Proving Ground, Maryland, 31 FLRA 205 (1988) (Aberdeen). The collective bargaining proposals submitted by the International Association of Machinists and Aerospace Workers, Local Lodge 2424 (the Union) in Aberdeen related to the Agency's testing of selected categories of civilian employees for drug abuse. We found three proposals in whole or in part to be negotiable and dismissed the remainder of the petition for review. According to the Agency, the only issue in dispute involves the negotiability of portions of Proposal 12. Agency's Supplemental Brief at 1.

On April 11, 1988, the final Guidelines were issued. On April 21, 1988, the Agency petitioned the court for review of the Authority's decision as to the portions of Proposal 12 found negotiable. On June 2, 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 Aberdeen 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 the portions of Proposal 12 found negotiable. The Agency submitted a supplemental brief. The Union did not file a submission.

The portions of Proposal 12 at issue address procedures to be followed by the Agency in implementing a Department of Defense Directive concerning civilian employee drug abuse testing. Proposal 12(a)(2) provides for the refrigeration of specimens, if not tested on the day collected, and further provides procedures for examining specimens which have been refrigerated. Proposal 12(b) provides that the manufacturer's manual shall be used for test set-up. The first sentence of Proposal 12(c)(1) similarly states that the manufacturer's instructions for the systems used shall be followed. Proposal 12(c)(2)-(6) provides specific scientific procedures and calibrations which shall be observed. Proposal 12(d) covers safety considerations. For the reasons stated below, we find that the portions of Proposal 12 at issue are moot.

II. Proposal 12

Section 12(a)(2)

The urine specimens shall be collected and maintained in accordance with AR 600-85, change [I]11. The specimens will either be tested that day or be refrigerated until assayed. If they are refrigerated, the specimen will be brought to room temperature and visually inspected for the presence of [pre]cipitated salts prior to being assayed. If salts are present, the specimen will not be tested and a new specimen will be obtained.

Section 12(b)

Test Set Up: See the manufacturer[']s manual for this information (who will be conducting tests).

Section 12(c)(1)

(c) Procedures

1. Follow the manufacturer[']s instructions for the systems used. Operators shall be trained in the use of the equipment and in good laboratory practices by qualified instructors.

Sections 12(c)(2)-(6)

2. The spectrophotometer wavelength shall be calibrated daily using a calibrating standard.

3. The spectrophotometer transmittance shall be adjusted every 10% hours [sic] of instrument operation using the test standards. Expand to include warm up per manufacturers directions including everytime it is turned on.

4. In the event of a positive test the spectrophotometer transmittance shall be adjusted as indicated above and a new sample of the specimen will be re-tested.

5. To reduce the chances of cross contamination of specimens:

(a) The urine specimens will be individually presented to the [pipets].

(b) The tip of the [pipets] will either be changed after each test or be flushed using at least a 60 rinse ratio with the exterior of the tip being wiped clean.

6. The operator will visually inspect the cells for cleanliness. Debris and fingerprints shall be removed from the cells using tissue wetted in solvent.

Section 12(d)

(d) Safety considerations:

1. The operator[s] will use standard medical laboratory practices to protect themselves from infection.

2. All (RIA) samples and contaminated solid waste must be placed in containers and disposed of as hazardous waste materials per APGR 200-2.

[Only the underscored portions are in dispute.]

A. Positions of the Parties

The Agency contends that Proposal 12 is intended to be applied to field testing. According to the Agency, the proposal anticipates "on-site field testing followed by off-site confirmatory testing of positive specimens." Agency's Supplemental Brief at 6. The Agency contends, as to on-site testing, that "[s]uch an event cannot occur under the final HHS Guidelines; in fact, such an event is prohibited by the Guidelines." Agency's Supplemental Brief at 6, emphasis in original. The Agency states that after the promulgation of the final Guidelines, the Agency amended its procedure and ceased on-site or field testing of civilians. Agency's Supplemental Brief at 6, 12. The Agency argues that because Proposal 12 pertains to on-site testing, the proposal no longer has any validity under the Federal drug testing program and is moot. Agency's Supplemental Brief at 12.

The Agency also contends that Proposal 12 is inconsistent with provisions of the final Guidelines, which are Government-wide regulations. Agency's Supplemental Brief at 1, 2. The Agency contends that because the final Guidelines preclude field testing and Proposal 12 specifically applies to a situation in which field testing is used, the proposal is inconsistent with the final Guidelines.

The Agency argues that Proposal 12(a)(2) clearly contemplates on-site or screening testing, and conflicts with the final Guidelines. Agency's Supplemental Brief at 5. The Agency states that the final Guidelines specifically preclude on-site or field testing. Section 3.5, final Guidelines and 53 Fed. Reg. 11972. The Agency argues that "[a]pplying the proposal to the current Guidelines requirement of no on-site testing makes no sense." Agency's Supplemental Brief at 6.

The Agency further argues that Proposal 12(a)(2) would require that the sample be tested that day or be refrigerated. The Agency contends that the final Guidelines provide specific procedures to be followed for the collection and processing of samples. Section 2.2(f) and (g), final Guidelines. The Agency states that the final Guidelines require refrigeration of samples only if the samples have not been tested within 7 days of arrival at the laboratory. Section 2.4(c), final Guidelines. The Agency argues that the final Guidelines' procedures would make same-day testing or refrigeration impossible where samples are transported to a laboratory for initial and confirmatory testing. Agency's Supplemental Brief at 7.

The Agency also argues that Proposal 12(a)(2) would establish conditions of employment for employees who are not within the bargaining unit and, therefore, the proposal is outside the scope of bargaining. Specifically, the Agency contends that Proposal 12(a)(2) would affect contractor employees or employees at the Walter Reed Army Medical Center, U.S. Army Forensic Toxicology Drug Testing Laboratory, Fort Meade, Maryland who now perform the urinalysis tests. The Agency points out that when the proposal was first advanced, both the collection and the initial testing personnel were under the Aberdeen Proving Ground's control; however, this is no longer the case. Agency's Supplemental Brief at 7.

The Agency contends that Proposal 12(b), (c) and (d) establishes testing procedures which deviate from the procedures established by the final Guidelines. The Agency argues that the final Guidelines' procedures are the exclusive standards to be used for employee drug testing. Section 3.6, final Guidelines. The Agency further argues that since on-site testing is no longer performed, the proposed testing procedures can no longer be applied. Agency's Supplemental Brief at 10.

Finally, the Agency argues that Proposal 12(c)(4) requires the use of a split urine sample, but the use of split samples was specifically rejected by HHS. See 53 Fed. Reg. 11971. The Agency also argues that Proposal 12(c)(4) directly conflicts with the final Guidelines' requirements for confirmatory tests. The Agency states that the final Guidelines require that the initial and confirmatory tests be performed on the same sample, and that the confirmatory test uses gas chromatography/mass spectrometry (GS/MS) techniques. Section 2.4(e) and (f)(1), final Guidelines, 53 Fed. Reg. 11983. Agency's Supplemental Brief at 11-12.

The Agency did not address Proposal 12(d) in its Supplemental Brief.

The Union did not file a supplemental brief.

B. 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. I11 to Army Regulation 600-85, Alcohol and Drug Abuse Prevention and Control Program (Interim Change to AR 600-85). Agency Statement of Position, Enclosure. Paragraph 5-14.f.(5) of the Interim Change to AR 600-85 provided for the use of field testing in civilian employee drug testing. Id. The proposal at issue in this case is part of the initial Proposal 12 introduced by the Union in May 1986 in response to the implementation of the Interim Change to AR 600-85 at Aberdeen Proving Ground. Id. at 2-3.

The Union's proposals addressed in detail the various functions connected with field testing and its effect on employees or applicants for employment. Id. Proposal 9 addressed the objective of drug screening and Proposal 10 covered the background of the drug screening program using the radioimmunoassay test. Proposal 12 contained the Union's proposal on the procedure for the radioimmunoassay test. Proposals 20-22 specifically addressed positive field test results. Id. at 2, 4. On September 15, 1986, Executive Order 12564, Drug-Free Federal Workplace was issued. Union's Statement of Position, Exhibit 11. The HHS final Guidelines were issued April 11, 1988. Therefore, the proposal at issue in this case pre-dates the final Guidelines by almost 2 years.

C. Discussion

For the reasons stated below, we find that the portions of Proposal 12 at issue are moot.

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), we stated 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 Aberdeen. The final Guidelines require that both the initial and confirmatory screenings occur at the same location: a certified drug testing laboratory. See section 3.5, final Guidelines, 53 Fed. Reg. 11987.

After HHS's issuance of the final Guidelines, the court granted the Agency's motion to remand this case to the Authority. The Authority requested the parties to submit supplemental briefs addressing the effect of the final Guidelines on the proposal at issue. The Agency submitted a supplemental brief stating that it had ceased its field testing program pursuant to the requirements of the final Guidelines. Agency's Supplemental Brief at 6, 12. See section 3.5, final Guidelines, 53 Fed. Reg. 11987. The Agency also states that, since the final Guidelines were promulgated, drug testing has been performed at locations away from Aberdeen Proving Ground. Agency's Supplemental Brief at 6.

The Union did not file a supplemental brief. In the absence of a supplemental brief, we have no information from the Union as to how the portions of Proposal 12 at issue are to operate under the final Guidelines. We note that Section 2424.4(a)(2) of our Rules and Regulations provides that the exclusive representative is to provide a "description of the situation or circumstances which will enable the Authority to understand the context in which the proposal is intended to apply." Given the uncontroverted information supplied by the Agency in its supplemental brief and the wording of Proposal 12, we conclude that Proposal 12 must be read as continuing to address the Agency's now defunct field testing program.

Both the terms of Proposal 12 and the record in this case support the conclusion that the proposal is tied to the implementation of the Agency's field testing or on-site initial screening program under the Interim Change to AR 600-85. Specifically, Proposal 12(a)(2) requires that urine samples be collected and maintained in accordance with the Interim Change to AR 600-85. The record indicates that implementation of the drug testing program under the Interim Change to AR 600-85 at Aberdeen Proving Ground involved the use of on-site screening tests or field testing. Agency's Supplemental Brief at 6. Proposal 12(a)(2) also requires that the sample be tested on the same day that it is collected or be refrigerated. The Agency does not use on-site certified drug testing labs at Aberdeen Proving Ground, however. Id. Rather, consistent with the final Guidelines, samples are shipped from the collection site to a certified lab for the initial screening test. Id. Since the proposal addresses same-day tests under the provisions of the Interim Change to AR 600-85, we conclude that the proposal applies to the Agency's former field testing program.

The remaining portions of Proposal 12 concern the procedures to be followed in conducting field tests under the Interim Change to AR 600-85; that is, setting up and performing the tests and disposing of the wastes from those tests. Taken as a whole, therefore, Proposal 12 concerns the same-day, on-site application of the initial screening test under the field testing program established by the Interim Change to AR 600-85.

The Interim Change to AR 600-85 expired on February 10, 1988 and is no longer in effect. Agency's Supplemental Brief, Enclosure. The Agency no longer conducts on-site initial screening or field tests. Agency's Supplemental Brief at 6, 12. Consequently, the regulation which the proposal purports to implement and the testing