35:0926(97)NG - - NFFE Local 2058 and Army Aberdeen Proving Ground, Installation Support Activity - - 1990 FLRAdec NG - - v35 p926
[ v35 p926 ]
The decision of the Authority follows:
35 FLRA No. 97
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. ARMY ABERDEEN PROVING GROUND
INSTALLATION SUPPORT ACTIVITY
(31 FLRA 241)
(33 FLRA 702)
DECISION AND ORDER ON NEGOTIABILITY ISSUES ON REMAND
April 30, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case concerns aspects of the Agency's drug testing program and 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, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen). The court reviewed several negotiability determinations made by the Authority in three decisions, including the determinations in National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground, Installation Support Activity, 33 FLRA 702 (1988) that the second and third sentences of Proposal 10 were negotiable.
Those sentences in Proposal 10 would allow an employee to retain a portion of the sample for confirmatory testing in the event of a positive test result.
The court concluded on review that the second and third sentences of Proposal 10 were nonnegotiable and remanded the case to the Authority for proceedings consistent with its opinion. On remand, we dismiss the Union's petition for review as to the second and third sentences of Proposal 10.
The procedural history of this case is fully set forth in the Authority's decision in 33 FLRA 702 and the court's decision and will not be repeated here. In light of the remand from the court, we will confine our discussion to the second and third sentences of Proposal 10.
Proposal 10 states:
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.]