35:0926(97)NG - - NFFE Local 2058 and Army Aberdeen Proving Ground, Installation Support Activity - - 1990 FLRAdec NG - - v35 p926



[ v35 p926 ]
35:0926(97)NG
The decision of the Authority follows:


35 FLRA No. 97

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 2058

(Union)

and

U.S. ARMY ABERDEEN PROVING GROUND

INSTALLATION SUPPORT ACTIVITY

(Agency)

0-NG-1342

(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.

II. Background

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.]

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 Authority had found the second and third sentences of Proposal 10 to be negotiable.

The court examined the intent of the additional data which Proposal 10 would provide. The Union stated that an employee could present the information to a supervisor to rebut the Medical Review Officer's (MRO) positive finding. 33 FLRA at 707. The court stated that the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS), 53 Fed. Reg. 11979-89, provide an employee "an opportunity to persuade the MRO that the test result was incorrect or justifiable." 890 F.2d at 473. The court determined that the MRO alone is qualified to evaluate medical data; the supervisor would lack the medical knowledge needed to assess an employee's claim of contradictory test results. The court found that a proposal giving the supervisor the authority to disregard the MRO's finding would "undercut the Guidelines' command that agencies appoint a medical officer to make final medical decisions." 890 F.2d at 473. The court found that the second and third sentences of Proposal 10, as they were intended to be applied, were inconsistent with the final Guidelines and, therefore, were nonnegotiable. The court noted, however, that a proposal enabling an employee "to provide supplementary evidence, such as new or split samples, to facilitate the supervisor's personnel decision might well be consistent with the Guidelines[.]" 890 F.2d at 472.

III. Analysis

Based on the rationale and conclusions of the court in Aberdeen, we find that the second and third sentences of Proposal 10 are inconsistent with the HHS final Guidelines and, therefore, are nonnegotiable. Accordingly, consistent with the court's decision in Aberdeen, we will rescind the order to negotiate on request and dismiss the petition for review as to the second and third sentences of Proposal 10. In future cases involving proposals that are not materially different from the second and third sentences of Proposal 10 and that are intended to be applied in the same manner, we will also find them to be nonnegotiable.

IV. Order

The order that the Agency must negotiate on request (or as otherwise agreed to by the parties) concerning the second and third sentences of Proposal 10 is rescinded. The petition for review as to the second and third sentences of