35:0936(100)NG - - NFFE Local 15 and Army, Army Armament, Munitions and Chemical Command, Rock Island, IL - - 1990 FLRAdec NG - - v35 p936
[ v35 p936 ]
The decision of the Authority follows:
35 FLRA No. 100
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
DEPARTMENT OF THE ARMY
U.S. ARMY ARMAMENT, MUNITIONS AND CHEMICAL COMMAND
ROCK ISLAND, ILLINOIS
(30 FLRA 1046)
(33 FLRA 436)
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 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 33 FLRA 436 (1988) that Proposals 3 and 9 were negotiable.
Proposal 3 requires the Agency to provide safeguards to assure that urinalysis testing is not performed by unqualified or uncertified operators or test personnel.
Proposal 9 would allow an employee to present to his or her supervisor evidence of a new or split urine sample in order to rebut the Agency's finding of illegal drug use.
The court concluded on review that Proposals 3 and 9 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 Proposals 3 and 9.
The procedural history of this case is fully set forth in the Authority's decision in 33 FLRA 436 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 Proposals 3 and 9.
Proposal 3 states:
Section III.B - Testing Methods and Procedures
B. The Employer agrees that the following procedure will be utilized to assure drug testing is reliable:
1. Upon direction of management under terms of Section 2 above, affected employees will report to designated location to provide urine sample.
2. The Employer agrees to provide safeguards to assure the urinalysis testing for affected employees is not performed by unqualified or uncertified operators or test personnel.
[Only the underlined portion is in dispute.]
The Authority had found Proposal 3 to be negotiable. The court found that Proposal 3, regarding the qualifications of personnel operating the testing equipment, is inconsistent with the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS). See 53 Fed. Reg. 11979-89. The court stated that the "proposal is inconsistent with the spirit, if not the letter, of the Guidelines." 890 F.2d at 474. The court found that the final Guidelines were intended to establish the exclusive standards for the certification of laboratories, and imposition of additional standards for laboratory personnel was not negotiable. Id.
Proposal 9 states:
9. At each and every step of testing employees have the option to have a urinalysis test by an independent lab at his/her cost utilizing the existing sample or a new sample. If independent testing refutes employer results, employee will be reimbursed for any cost associated with testing process.
Proposal 9 would allow an employee, at his or her cost, to have an independent laboratory perform a urinalysis test using the existing sample or a new sample. If independent testing refuted the results of the Agency's test, the employee would be reimbursed for any cost associated with the testing process. The Authority had found Proposal 9 to be negotiable.
The court examined the intent of the additional data which Proposal 9 would provide. The Union stated that an employee could present the information to a supervisor to refute the Medical Review Officer's (MRO) positive finding. 33 FLRA at 446. The court stated that the Guidelines 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 Proposal 9, as it was intended to be applied, was inconsistent with the final Guidelines and, therefore, was 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.
Based on the rationale and conclusions of the court in Aberdeen, we find that Proposals 3 and 9 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 Proposals 3 and 9. In future cases involving proposals that are not materially different from Proposals 3 and 9 and that are intended to be applied in the same manner, we will also find them to be nonnegotiable.
The order that the Agency must negotiate on request (or as otherwise agreed to by the parties) concerning Proposals 3 and 9 is resci