33:0521(71)NG - - NFFE Local 178 and Army Aberdeen Proving Ground, Installation Support Activity - - 1988 FLRAdec NG - - v33 p521



[ v33 p521 ]
33:0521(71)NG
The decision of the Authority follows:


33 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 178

and

U.S. ARMY ABERDEEN PROVING GROUND

INSTALLATION SUPPORT ACTIVITY

0-NG-1324

(31 FLRA 226)

DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 Aberdeen Proving Ground, Installation Support Activity v. FLRA, No. 88-1309 (D.C. Cir. July 18, 1988). The court granted the motion of the U.S. Army Aberdeen Proving Ground, Installation Support Activity (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 22, 1988, we issued our decision and order on negotiability issues in National Federation of Federal Employees, Local 178 and U.S. Army Aberdeen Proving Ground, Installation Support Activity, 31 FLRA 226 (1988) (Aberdeen). The collective bargaining proposals submitted by the National Federation of Federal Employees, Local 178 (the Union) in Aberdeen related to the Agency's testing of selected categories of civilian employees for drug abuse. The Authority found three proposals (Proposals 2, 4 and 6) to be negotiable and three proposals (Proposals 3, 5 and 7) to be nonnegotiable. The Agency states that "Proposal 2 is no longer at issue." Agency's Supplemental Brief at 1. We also dismissed Proposal 8 because the Union did not provide the information necessary for a negotiability determination, and Proposal 1 was not considered because the Agency withdrew its allegation of nonnegotiability.

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 Proposals 4 and 6. 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 Proposals 4 and 6. Both parties submitted supplemental briefs.

Proposal 4 provides that medical documentation which demonstrates legal drug use by an employee shall be presumed to be a valid explanation for a positive test result unless rebutted. For the reasons stated below, we find that Proposal 4 is consistent with the final Guidelines and, therefore, that it is within the duty to bargain.

Proposal 6 provides for retention of a portion of the urine sample after an initial positive test result for later testing if requested by the employee. For the reasons stated below, we find that Proposal 6 is moot.

II. Proposal 4

Section 8: Employees shall not be required to disclose the legitimate use of a specific drug at the outset of the program. Employees will have an opportunity to provide documentation supporting legitimate usage upon a positive test result. This documentation shall be presumed to be a valid explanation of the positive urinalysis.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency notes that the Authority found Proposal 4 to be negotiable based on its interpretation of the proposal as establishing a rebuttable presumption that medical documentation submitted by an employee is a valid explanation for a positive test. Agency's Supplemental Brief at 5. The Agency disputes this interpretation and argues instead that "[t]he proposal says that documentation provided by the employee must be accepted as a valid reason for a positive drug test -- period." Id. at 6. The Agency argues that the proposal establishes "an agreement bar against any finding other than that the medical documentation provided by the employee is a valid explanation of legal drug use. That's what the proposal says. It says nothing about a 'rebuttable presumption,' as suggested by the Authority in its decision." Id. Accordingly, the Agency claims that a conflict exists between the requirement of the final Guidelines that the Medical Review Officer decide if the documentation explains a positive drug test and the clear wording of the proposal. Id.

The Agency relies specifically on Section 2.7(a), (b) and (f) of the final Guidelines, which describes the role of the Medical Review Officer, to support its contention that Proposal 4 conflicts with the requirements of the final Guidelines. See 53 Fed. Reg. 11980. The Agency also relies on the Medical Review Officer's Operations Manual (the Manual), which sets out in more detail the Medical Review Officer's review functions. The Agency argues that this Manual, which was promulgated by the National Institute on Drug Abuse on behalf of the Department of Health and Human Services under the final Guidelines, is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. The Agency concludes that the "rote acceptance of 'documentation' urged in the disputed proposal" conflicts with the "objective medical judgment exercised by the Medical Review Officer" under both the final Guidelines and the Manual. Agency's Supplemental Brief at 9-10.

The Union contends that Proposal 4 is fully consistent with the final Guidelines. The Union notes that "Section 2.7(b) provides that the Medical Review Officer (MRO) 'shall examine alternate medical explanations for any positive test result.'" Union's Supplemental Brief at 2. The Union argues that "[a]s the Authority has recognized," Proposal 4 "intends only that employees have the opportunity to submit valid medical evidence to demonstrate the legitimate use of a controlled substance [and that because] the Guidelines expressly provide employees the opportunity to explain a positive test result through legitimate medical documentation, no conflict exists between the Guidelines and the proposal on this issue." Id.

The Union contends that "Proposal 4 also creates a presumption that medical documentation submitted by an employee is a valid explanation of a positive test result." Id. The Union agrees with the Authority's interpretation of the proposal. The Union argues that this interpretation is "consistent with the HHS Guidelines" and "does not undermine the authority of the MRO to review and interpret positive test results." Id. at 2-3. The Union contends that even without its proposal, the Medical Review Officer would be required by the final Guidelines to offer some evidence or explanation to rebut medical evidence offered by an employee, unless the Agency "intends to arbitrarily reject alternate medical explanations for drug use." Id. at 3.

B. Discussion

We conclude that Proposal 4 is consistent with the final Guidelines and, therefore, that it is within the duty to bargain under section 7117(a)(1) of the Statute.

We concluded that the final Guidelines are Government-wide regulations within the meaning of section 7117(a) of the Statute in National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 33 FLRA No. 60 (1988) (slip op. at 2-4). The final Guidelines were developed in accordance with Executive Order 12564, Drug-Free Federal Workplace, dated September 15, 1986 (the Executive Order), and section 503 of Pub. L. 100-71, the Supplemental Appropriations Act for fiscal year 1987, dated July 11, 1987, 101 Stat. 391, 468-71. Section 4.(d) of the Executive Order states that "[t]he Secretary of Health and Human Services is authorized to promulgate scientific and technical guidelines for drug testing programs, and agencies shall conduct their drug testing programs in accordance with these guidelines once promulgated." The final Guidelines were published in the Federal Register of April 11, 1988. 53 Fed. Reg. 11979-89.

We stated in our decision in Aberdeen that "Proposal 4 creates a presumption that medical documentation submitted by an employee stating the reason for the positive test is valid. . . . Moreover, we construe the presumption created by this proposal to be rebuttable by the Agency." 31 FLRA at 234-35. The Agency disagrees with our interpretation of Proposal 4 in Aberdeen. The Agency interprets the proposal as requiring that the documentation provided by an employee be accepted as conclusive proof that a positive test result has a medical explanation other than the use of illegal drugs. However, the Agency's interpretation is not consistent with the wording of the proposal.

The Agency interprets the proposal as if the word "presumed" is not there. Even in the absence of any other evidence of the Union's intent, the use of the word "presumed" in and of itself suggests that the proposal does not require that an employee's medical documentation be accepted as conclusive proof of a different explanation for a positive test. The terms "presumed" and "presumption" connote that medical documentation is to be accepted as sufficient explanation in the absence of evidence to the contrary. In addition, our interpretation of the proposal is supported by the Union's statements as to the meaning of the proposal. Union's Petition for Review at 4 and Supplemental Brief at 2-3.

Therefore, contrary to the Agency's arguments, we conclude that our previous interpretation is consistent with the wording of the proposal. Interpreting the proposal as providing a rebuttable presumption places a burden on the Agency to explain any rejection of the employee's medical documentation.

We find that, under the interpretation which we adopted in Aberdeen, Proposal 4 is consistent with the requirements of the final Guidelines.

Under Section 2.7(a), a confirmed positive result does not "automatically" identify an employee as an illegal drug user. A further review must be conducted by the Medical Review Officer to determine whether there is an alternate medical explanation for the positive result. 53 Fed. Reg. 11985. A positive result will not be transmitted to agency officials for further action until it has been reviewed for possible alternate medical explanations. Id.

Under Section 2.7(b), the Medical Review Officer, in carrying out the responsibility to consider alternate medical explanations, may conduct a medical interview with the employee, review the employee's medical history, or "review any other relevant biomedical factors." 53 Fed. Reg. 11985. When the positive result could have resulted from a legally prescribed medicine, the Medical Review Officer must review "all medical records made available" by the employee. Id. Under Section 2.7(f), when the Medical Review Officer determines that "there is a legitimate medical explanation for the positive test result, he or she shall determine that the result is consistent with legal drug use and take no further action." 53 Fed. Reg. 11986.

Consistent with Section 2.7, the Medical Review Officer must make a determination as to whether there is a legitimate medical explanation for a positive test result before that test result is transmitted to agency officials for further action. The proposal's requirement that the documentation provided by an employee be presumed to be a valid explanation for the test result, unless rebutted, does not change the Medical Review Officer's responsibility under the final Guidelines. Even in the absence of the proposal, under Section 2.7(b) of the final Guidelines, the Medical Review Officer would be obligated to review an employee's medical history and medical records and determine whether anything in that evidence would provide a legitimate medical explanation of the test result. Requiring the Medical Review Officer to determine whether or not an employee's documentation provides a legitimate medical explanation does nothing to alter the responsibility of the Medical Review Officer under the final Guidelines, and, in fact, is consistent with that responsibility.

Moreover, contrary to the Agency's arguments, the proposal does not dictate the determination which the Medical Review Officer must make after review of an employee's medical documentation. Under the proposal, the Medical Review Officer would be able to determine that an employee's medical documentation demonstrates that there is a legitimate medical explanation for a test result when he or she determines that the evidence warrants that conclusion. On the other hand, the Medical Review Officer would be free to find that there is not a legitimate medical explanation when he or she determines that the evidence justifies that finding. Under the proposal, therefore, the Medical Review Officer would retain the full range of his or her medical judgment. Consequently, we find that Proposal 4 is consistent with the final Guidelines.

Accordingly, we conclude that Proposal 4 is within the duty to bargain under section 7117(a)(1) of the Statute.

III. Proposal 6

Section 11: Upon a positive urinalysis test, each sample will be divided with half being sent for confirmatory testing at a remote laboratory and half being retained in freezer storage at the Office of Alcohol Abuse & Drug Rehabilitation Center. 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 military facility 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 6 is intended to be read together with Proposal 5, which the Authority found to be nonnegotiable in Aberdeen, 31 FLRA at 237, and which specifically applies to field testing. According to the Agency, Proposal 6 concerns "on-site field testing followed by off-site confirmatory testing of positive specimens." Agency's Supplemental Brief at 12. 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. Id. The Agency argues that because Proposal 6 pertains to field testing, which is no longer being conducted by the Agency, the proposal is moot. Agency's Supplemental Brief at 14.

The Agency also contends that Proposal 6 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 6 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 6 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 13.

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. Agency's Supplemental Brief at 12; see also 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 14. The Agency contends that Proposal 6 would permit the employee, in selecting a laboratory for confirmatory testing, to choose a laboratory which was not certified. Id.

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. Id.; see also Section 2.7, final Guidelines, 53 Fed. Reg. 11985; Executive Order 12564, § 5(f). The Agency contends that the functions of the Medical Review Officer--to determine whether a retesting is required and to review data for sufficiency--provide the safety required for a reliable program. Therefore, the Agency claims that there is no need for split samples or independent analysis. Agency's Supplemental Brief at 14; see also Section 2.7(e) and (g), final Guidelines, 53 Fed. Reg. 11986.

Finally, the Agency contends that Proposal 6 would subject the Medical Review Officer's determination and the Agency's action to arbitral review. Agency's Supplemental Brief at 14.

The Union contends that the proposal does not conflict with any of the provisions of the final Guidelines. The Union argues that Proposal 6, 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 4. 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." Id.

The Union also asserts that Proposal 6 does not conflict with the final Guidelines regarding the role of the Medical Review Officer. The Union contends that Proposal 6 "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 4. 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 5.

B. Discussion

For the reasons discussed below, we conclude that Proposal 6 is moot.

In National Federation of Federal Employees, Local 1437 and U.S. Army Armament Research, Development and Engineering Center, Dover, New Jersey, 33 FLRA No. 66 (1988) (slip op. at 4-5) (Dover), we addressed an almost identical proposal--Proposal 10--involving the U.S. Department of Army and the National Federation of Federal Employees. We concluded that Proposal 10 in Dover was moot because the proposal addressed circumstances in which an initial on-site test is performed (prior to sending the sample to the laboratory for confirmation), and, pursuant to the final Guidelines, the Agency no longer performed initial on-site screening tests. Finding nothing in the Union's position to demonstrate that Proposal 10 would apply to any other testing situation, and relying on our previous decision in 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 concluded that Proposal 10 was moot.

Proposal 6 states that "[u]pon a positive urinalysis test, each sample will be divided with half being sent for confirmatory testing at a remote laboratory[.]" Based on the wording of this part of Proposal 6, we find that the proposal contemplates an initial on-site test, prior to sending half of the sample to the laboratory for confirmation. The Union did not submit any evidence to controvert this interpretation of the proposal. Therefore, consistent with its wording, we interpret Proposal 6 as addressing on-site initial screening tests or "field tests."

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