33:0702(85)NG - - NFFE Local 2058 and Army Aberdeen Proving Ground, Installation Support Activity - - 1988 FLRAdec NG - - v33 p702



[ v33 p702 ]
33:0702(85)NG
The decision of the Authority follows:


33 FLRA No. 85

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2058

and

U.S. ARMY ABERDEEN PROVING GROUND

INSTALLATION SUPPORT ACTIVITY

0-NG-1342

(31 FLRA 241)

DECISION AND ORDER ON NEGOTIABILITY ISSUES ON REMAND

October 31, 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. Department of the Army, U.S. Army Aberdeen Proving Ground, Installation Support Activity v. FLRA, No. 88-1310 (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 2058 and U.S. Army Aberdeen Proving Ground, Installation Support Activity, 31 FLRA 241 (1988) (Aberdeen Proving Ground). The collective bargaining proposals submitted by the National Federation of Federal Employees, Local 2058 (the Union) in Aberdeen Proving Ground related to the Agency's testing of selected categories of civilian employees for drug abuse. We found portions of three proposals to be negotiable. We found portions of five proposals to be nonnegotiable. We dismissed the remaining proposals (Proposals 1, 8 and 9) because the Union did not provide the information necessary for the Authority to make a negotiability determination. The Agency accepts the Authority's negotiability determination as to Proposal 2 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 21, 1988, the Agency petitioned the court for review of the Authority's decision as to Proposal 6 and the second and third sentences of 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 Aberdeen Proving Ground 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 6 and the second and third sentences of Proposal 10. Both parties submitted supplemental briefs.

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.

The disputed portion of Proposal 10 provides for the employee to retain a portion of the sample with instructions for storage and it provides for confirmatory testing of the retained sample in the event of a confirmed positive result. For the reasons stated below, we find that Proposal 10 is not inconsistent with the final Guidelines and, therefore, is within the duty to bargain.

II. Proposal 6

Section 12. 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 will 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 submitted a statement of position as to Proposal 6 which was similar to the statements submitted 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) (Proposal 10) (slip op. at 2-4) (Dover) and National Federation of Federal Employees, Local 178 and U.S. Army Aberdeen Proving Ground, Installation Support Activity, 33 FLRA No. 71 (1988) (Proposal 6) (slip op. at 7-8) (Aberdeen). The Agency contends, among other things, that Proposal 6 is moot because it concerns on-site testing, a procedure discontinued by the Agency because the final Guidelines provide that both the initial and confirmatory screenings must occur at the same location. The Agency argues, therefore, that Proposal 6 is moot.

The Union also submitted a statement of position as to Proposal 6 which was similar to the statements it submitted in Dover and Aberdeen. The Union did not respond to the mootness issue raised by the Agency in either of those cases and does not respond to that issue here.

B. Discussion

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

In Dover (slip op. at 4-5) and Aberdeen (slip op. at 8-9), we addressed almost identical proposals involving different organizational components of the U.S. Department of the Army and different locals of the National Federation of Federal Employees. In Dover and Aberdeen, we concluded that Proposals 10 and 6, respectively, were moot because: (1) the proposals addressed circumstances in which an initial on-site test is performed (prior to sending the sample to the laboratory for confirmation); and (2) 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 Proposals 10 or 6 would be applicable 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) (Rock Island), we concluded that Proposals 10 and 6 were moot.

Proposal 6 in this case states that "[u]pon a positive urinalysis test, each sample will be divided with half being sent for confirmatory testing at a remote laboratory[.]" The plain wording of this part of Proposal 6 supports a conclusion that the proposal contemplates an initial on-site test, prior to sending half 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."

The Agency states that pursuant to the requirements of the final Guidelines, it no longer conducts initial on-site screening tests. The Agency correctly argues, therefore, that the sequence of events addressed in Proposal 6 could not occur.

Accordingly, consistent with our holdings in Aberdeen, Dover and Rock Island, Proposal 6 is moot, and the petition for review on remand as to Proposal 6 must be dismissed.

III. Proposal 10

Section 18. Every effort will be made to insure proper chain of custody of all samples. At a minimum the sample will be divided for the purpose of the employee to retain his or her portion with instructions for proper storage provided. In the event of a confirmed positive the employee's retained portion will be confirmatory tested. Both confirmatory tests must match before proposing adverse action against the employee.

[Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency contends that Proposal 10 is intended to be read together with Proposal 5, which was determined to be outside the Agency's duty to bargain in Aberdeen Proving Ground and which is not in dispute here, and Proposal 6 discussed above. According to the Agency, Proposal 10, when read in conjunction with Proposals 5 and 6, 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. Id. The Agency argues that because Proposal 10 pertains to field testing, which is no longer being conducted by the Agency, the proposal is moot. Id. at 9.

The Agency also contends that Proposal 10 is inconsistent with provisions of the final Guidelines, which are Government-wide regulations. Id. 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. Id. at 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. Id. See also Section 2.7(b), final Guidelines, 53 Fed. Reg. 11985. The Agency argues that the Medical Review Officer (MRO) 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. Id. 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. Id. at 9; see also Section 2.7, final Guidelines, 53 Fed. Reg. 11985, Executive Order 12564 º 5(f). 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. Agency's Supplemental Brief at 9; see also Section 2.7(e) and (g), final Guidelines, 53 Fed. Reg. 11986.

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 states that its position with respect to Proposal 6 is equally applicable to Proposal 10. Union's Supplemental Brief at 4. Consistent with its interpretation of Proposal 6, the Union contends that Proposal 10 "provides for sample splitting and independent testing of the split sample[.]" Id. at 3. The Union argues that "[w]hile the supplementary statement of purpose which precedes the actual text of the Guidelines indicates that 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. Therefore, the Union argues, "[s]ince the Guidelines are silent on sample splitting, Proposal 6 is not inconsistent with the Guidelines." Id.

The Union also contends that the proposal does not conflict with the final Guidelines concerning the role of the Medical Review Officer. The Union argues that it is not its "intention to undermine the authority of the MRO to review positive test results and make a medical determination as to their accuracy." Id. Rather, the Union argues, "this proposal is intended to give an employee evidence which may be presented to a supervisor in order to rebut a positive finding." Id.

B. Discussion

We conclude that the Agency has not demonstrated that Proposal 10 is inconsistent with the final Guidelines so as to be outside 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) (Rock Island) (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.

The Agency argues, among other things, that Proposal 10, like Proposal 6 above, is moot because it "concerns on-site field testing followed by off-site confirmatory testing of positive specimens." Agency's Supplemental Brief at 7. However, unlike Proposal 6, Proposal 10 makes no reference to "confirmatory testing at a remote laboratory" after an initial positive on-site test result. Further, unlike Proposal 6, Proposal 10 was not made in conjunction with a proposal which specifically references field testing. Finally, Proposal 10, unlike Proposal 6, is stated generally and can be applied to the Agency's drug testing program without regard to whether the Agency conducts field testing. In this respect, Proposal 6 is similar to Proposals 8 and 9 in Rock Island, which we found to have general application to the Agency's drug testing program. Therefore, because the Agency has not demonstrated that Proposal 10 is applicable only to on-site testing, we conclude that Proposal 10 is not moot.

The Agency also argues that Proposal 10 is inconsistent with the final Guidelines because it concerns a split sample procedure and because it conflicts with the authority of the Medical Review Officer. In Rock Island, we considered similar questions concerning Proposals 8 and 9, both of which provided for an employee to retain a portion of the sample. We concluded that "[n]othing in the final Guidelines or the HHS comments prohibit employees from retaining a portion of their own urine samples." Slip op. at 13. However, we noted that the final Guidelines required that a sample for testing under an agency program must contain at least 60 milliliters of urine. Id. We concluded that "[a]s long as the Agency is able to obtain that minimum amount, nothing in the final Guidelines would prevent a portion of the sample in excess of that amount from being retained." Id. Moreover, we noted that neither the final Guidelines themselves nor HHS's comments on the Guidelines precluded an employee from retaining a portion of his or her own sample.

Proposal 10, like Proposals 8 and 9 in Rock Island, provides for the employee to retain a portion of the sample. The wording of the proposal does not prevent the Agency from collecting the amount of urine required by the final Guidelines. Specifically, we do not interpret the use of the term "divided" to mean that the sample must necessarily be divided into equal portions so as to produce a "half" of a sample which contains less than the required 60 milliliters. Proposal 10 is distinguishable in this respect from Proposal 6, which requires the sample to be divided in half. Moreover, Proposal 10 provides for the employee, and not the Agency, to retain a portion of the sample. Therefore, because it provides for retention by the employee of a portion of the sample, Proposal 10, like Proposals 8 and 9 in Rock Island, is not inconsistent with the final Guidelines solely because it requires a split sample.

The Agency also claims that the final Guidelines call for the "entire" sample to be sent to the laboratory. However, the final Guidelines themselves do not use the word "entire" to describe the sample which is to be sent for testing. The Guidelines refer only to the "sample" and define that term only in terms of the minimum amount necessary for testing. As long as the employee's retained portion of the sample represents the portion of the amount provided which is in excess of the 60 milliliters required by the final Guidelines for the sample to be tested, the proposal is consistent with the final Guidelines.

The second question which we addressed in Rock Island concerned the use or uses to which the retained portion of the sample would be put. Proposal 10 provides that "[i]n the event of a confirmed positive the employee's retained portion will be confirmatory tested." The Union states that "this proposal 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. Based on the Union's explanation, which is consistent with the wording of the proposal, we interpret Proposal 10 as providing for independent confirmatory testing of an employee's retained portion of a sample so as to provide evidence which may be presented to the employee's supervisor. Since the employee's retained portion of the sample is not intended as a substitute for the official Agency sample, it is irrelevant whether the independent testing is performed at a certified drug testing laboratory.

Interpreted in this manner, Proposal 10 has the same effect as Proposal 9 in Rock Island, which we also interpreted, based on the Union's explanation of its intent, as providing for independent testing of an employee's retained portion of a sample so as to provide evidence which may be presented to the employee's supervisor. In that case, we found that Proposal 9 was consistent with the provisions of the final Guidelines which govern the functions and responsibilities of the Medical Review Officer. We concluded that permitting an employee to present test results to a supervisor derived from independent tests performed on an employee's retained portion of the sample did not require the Medical Review Officer to consider results from a sample which had not been obtained in compliance with the final Guidelines.

Like Proposal 9 in Rock Island, therefore, Proposal 10 is not inconsistent with the functions and responsibilities of the Medical Review Officer under the final Guidelines. Under Proposal 10, any test results obtained as a result of independent confirmatory testing provided for by the proposal are to be supplied to an employee's supervisor, rather than to the Medical Review Officer. Because the final Guidelines do not preclude an employee from presenting supplementary evidence to a supervisor, there is no inconsistency between the proposal and the requirements of the final Guidelines regarding the role of the Medical Review Officer. Rock Island, slip op. at 17. As we noted with respect to Proposal 9 in Rock Island, moreover, we make no judgment on what weight, if any, is to be given to such supplementary information.

Accordingly, as we have concluded that Proposal 10 is not inconsistent with the final Guidelines, it is within the duty to bargain under section 7117(a)(1) of the Statute.

IV. Order

The Agency shall upon request, or as otherwise agreed to by the parties, bargain on the second and third sentences of Proposal 10.