41:0195(17)NG - - NFFE and Air Force, 3245th Air Base Group, Hanscom AFB, MA - - 1991 FLRAdec NG - - v41 p195
[ v41 p195 ]
The decision of the Authority follows:
41 FLRA No. 17
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of a single proposal addressing the Agency's implementation of its drug testing program. The Agency filed a statement of position and the Union filed a response. For the following reasons, we find that the proposal is nonnegotiable under section 7117(a) of the Statute because it conflicts with a Government-wide regulation.
If an employee can provide at least 70 ml. of urine, the MUTPM [Medical Urine Testing Program Monitor] or escort will take the amount in excess of 60 ml. and place it in a separate container. Both the original sample (containing 60 ml.) and the reserved sample (containing at least 10 ml.) will be processed for shipment to the [A]gency's drug testing laboratory in accordance with the HHS [Department of Health and Human Services] Guidelines. Once the sample arrives at the laboratory, the security and analysis procedures contained in Section 2.4 of the Guidelines will be followed. If confirmatory testing of the original sample yields a positive result, the reserve sample will be tested. Test results from both the official and reserved sample will be reported to the MRO [Medical Review Officer] pursuant to 2.4(g) of the HHS Guidelines. All costs will be borne by the Air Force.
A. Positions of the Parties
1. The Agency
The Agency asserts that the proposal is nonnegotiable because, by requiring the Agency to pay all costs of collection and testing of a split sample, it necessitates an illegal expenditure of Government funds. The Agency points out that the Supplemental Appropriations Act of 1987, codified at 5 U.S.C. § 7301, precludes the expenditure of funds for drug testing programs that do not comply with scientific and technical guidance issued by the Department of Health and Human Services (HHS Guidelines). The Agency asserts that laboratory testing of split samples is not authorized by the HHS Guidelines. The Agency points out that, in publishing its final guidelines, the Department of Health and Human Services (DHHS) specifically discussed and rejected the use of split or second samples. The Agency argues that "union proposals requiring the [G]overnment to pay for drug tests--when that test is not specifically prescribed in the HHS Guidelines--are nonnegotiable." Statement of Position at 6.
The Agency makes three additional arguments that the proposal violates the HHS Guidelines. First, the Agency asserts that the proposal violates the Guidelines because it requires testing of a sample as small as 10 ml. According to the Agency, the HHS Guidelines require that samples furnished must contain 60 ml. Second, the Agency contends that the proposal's requirement that a reserved specimen be tested under the same criteria as the original specimen conflicts with the Guidelines. The Agency states that, as a reserved sample must be stored at cold temperatures, which cause the deterioration or loss of some analytes in the sample, the Guidelines require testing of a reserved sample without regard to the prescribed numerical cutoff levels used to determine whether fresh specimens are negative or positive. Third, the Agency asserts that the proposal conflicts with the Guidelines because it provides for a laboratory result to be considered positive without a determination by the MRO and provides for testing the reserved sample without MRO participation.
Additionally, the Agency contends that the proposal directly and excessively interferes with management's right to contract out under section 7106(a)(2)(A) by requiring the Agency to contract with its designated laboratory to perform a second test. In the Agency's view, the additional procedures required by the proposal "unavoidably change the terms of the contractor-agency relationship." Id. at 9. The Agency also asserts that the proposal's requirements that additional specimens be packed and shipped and that duplicate sets of records be maintained directly and excessively interfere with management's right to assign employees and work.
2. The Union
The Union asserts that the Supplemental Appropriations Act does not "bar negotiations over testing procedures simply because those procedures were not specifically prescribed by the HHS Guidelines." Reply Brief at 4. The Union also contends that the proposal does not conflict with the MRO's assigned responsibility for verifying positive test results from laboratories because "no sample--whether original or split--will be considered truly positive unless first reported positive by the lab and then verified as such by the MRO, precisely as mandated by the Guidelines." Id. at 6. In addition, the Union argues that the proposal does not conflict with the MRO's exclusive authority under the Guidelines to order additional analysis and tests. The Union argues that, under the proposal, the two separate specimens would be tested only once unless the MRO, in his or her discretion, ordered reanalysis of the original sample.
The Union asserts that the proposal is a negotiable procedure because it "simply builds an additional procedural layer of protection into a program that will otherwise go forward exactly as planned by the Agency." Id. at 7. The Union contends that the proposal does not directly interfere with the management right to contract out because it neither interferes with the Agency's choice of a drug testing laboratory nor changes the substantive terms of the contract between the Agency and its contractor. As for the Agency's allegation that the proposal interferes with the rights to assign work and employees, the Union asserts that the affected collection site personnel will be military. According to the Union, military personnel comprise "a group that falls outside the ambit of [the Statute] and for whom the Agency can claim no statutory right to assign." Id. at 9-10 (footnote omitted).
In the alternative, the Union argues that the proposal is a negotiable appropriate arrangement, under section 7106(b)(3) of the Statute. The Union asserts that the proposal's impact on the Agency's right to contract out is "easily outweighed by the substantial protections the proposal will offer to an employee's livelihood and reputation." Id. at 11.
B. Analysis and Conclusions
1. The HHS Guidelines and the Supplemental Appropriations Act of 1987
The HHS Guidelines constitute Government-wide regulations, within the meaning of section 7117(a)(1) of the Statute. American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1111 (1990). Accordingly, if the proposal conflicts with the HHS Guidelines, it is nonnegotiable. Id.
The Agency argues that the proposal conflicts with the HHS Guidelines in four separate respects. We will address the Agency's arguments seriatim.
First, we reject the Agency's argument that the proposal conflicts with the HHS Guidelines by requiring that the reserved sample be tested in accordance with the same screening and confirmation procedures, including numerical cutoff levels, used to determine whether original samples are negative or positive. The Agency notes, in this regard, that section 2.4(i) of the Guidelines provides that, as some analytes deteriorate or are lost during freezing and storage, "quantitation for a retest is not subject to a specific cutoff requirement but must provide data sufficient to confirm the presence of the drug or metabolite."
The proposal, however, requires that "the security and analysis procedures contained in Section 2.4 of the Guidelines will be followed." As such, the proposal plainly encompasses the section of the Guidelines cited by the Agency and, in fact, requires that section to be followed. Therefore, the proposal does not require the reserved sample to be tested under the same conditions, including cutoff levels, as the original sample. Instead, the proposal simply provides that applicable procedures and analytical requirements of the Guidelines be followed with respect to testing of the reserved sample.
Second, the Agency contends that the proposal is inconsistent with the HHS Guidelines because it requires testing of the reserved sample based on positive laboratory test results alone. According to the Agency, "only the MRO can declare a test positive after review of the laboratory results and collection documentation, and interview of the employee, and only the MRO can order additional analysis and tests." Statement of Position at 8.
The Agency's argument is misplaced. Under the HHS Guidelines, the laboratory is responsible, without MRO involvement, for identifying and performing confirmatory tests on positive specimens. See HHS Guidelines, section 2.4(e) and (f), 53 Fed. Reg. at 11983. Under section 2.7(b) of the HHS Guidelines, the MRO's role "is to review and interpret positive test results obtained through the agency's testing program." Id. at 11985. Therefore, contrary to the Agency's position, a testing laboratory initially determines whether test results are positive. Id. at 11987 (section 3.5). As a laboratory is authorized to identify a test as positive, the proposed requirement that the reserved sample be tested after a positive test finding by the laboratory does not conflict with the Guidelines. Further, the proposal does not conflict with the MRO's exclusive authority to order a reanalysis of the original sample. The proposal requires testing of the split sample, not reanalysis of the original sample. Accordingly, the proposal does not conflict with the MRO's responsibility to verify positive test results.
Third, the Agency argues that the proposal conflicts with the Guidelines, generally, because the Guidelines do not encompass split samples. The Agency has not identified any provisions of the HHS Guidelines expressly banning the collection and testing of split samples, such as those required by the proposal, provided the specimen meets the requirements of the Guidelines. Instead, the Agency's argument is based on a response to comments by DHHS at 53 Fed. Reg. 11971 (1988). Specifically, in response to requests that the HHS Guidelines mandate "a split sample technique in which a second sample or portion of a sample could be saved for further testing," DHHS stated that such a technique had been considered but rejected. Id. The DHHS noted that "these Guidelines specifically reject allowing the tested employee or anyone else from presenting to the Medical Review Officer a split sample or private sample that does not fully comply with these Guidelines." Id. The DHHS stated that it did not "project any real scientific, chain of custody, or reliability benefits sufficient to justify placing the added requirement of collection and storage of split samples of [sic] Federal agencies . . . ." Id.
It is clear that the DHHS rejected a requirement that all agencies engaged in drug testing provide split samples for testing. It is also clear, however, that nothing in the Guidelines expressly prohibits the use of split samples. Moreover, DHHS, in its comments, specifically rejected only "allowing the tested employee or anyone else from presenting to the Medical Review Officer a split sample or private sample that does not fully comply with these Guidelines." Id. (emphasis added.) Proposals requiring split samples to be processed in accordance with the Guidelines, therefore, were not expressly prohibited by the DHHS. Indeed, the proposal now before us expressly requires both the original and the reserved sample to be processed and shipped to the Agency's laboratory "in accordance with the HHS Guidelines." Accordingly, we reject the Agency's third argument.
Fourth, the Agency argues that the proposal conflicts with the Guidelines because it would require testing of samples smaller than 60 ml. It appears, in this regard, that the Agency's argument encompasses two subarguments. First, the Agency appears to argue that drug tests cannot be performed on less than 60 ml. of urine. That is, the Agency appears to argue that the amount of urine actually tested must be at least 60 ml. The Agency also appears to argue that the specimen from which any testing sample is taken must amount to at least 60 ml.
We disagree with the Agency's first argument. In section 2.4(b)(2), the Guidelines state that "[a]liquots . . . shall be used by laboratory personnel for conducting initial and confirmatory tests." "Aliquot" is defined in section 1.2 of the HHS Guidelines as "[a] portion of a specimen used for testing." The Guidelines do not prescribe a minimum size for an aliquot. There is, therefore, no basis on which to conclude that the proposal conflicts with the Guidelines by requiring drug tests to be performed on aliquots smaller than 60 ml.
It is also clear, however, that consistent with the Guidelines, aliquots must be taken from a specimen containing at least 60 ml. of urine. That is, although the Guidelines do not specify a minimum size of an aliquot, the Guidelines clearly specify a minimum specimen size from which the aliquot is to be taken. In this regard, section 2.2(f)(10) of the Guidelines requires, as relevant here, that a specimen of at least 60 ml. be collected. If an employee is unable to provide a specimen of that quantity, collection site personnel are specifically instructed to obtain additional urine and, following specified procedures, to combine the original specimen with the additional one so as to collect 60 ml. in one container. Other portions of the Guidelines specify the procedures by which specimens are to be handled and transported to a laboratory and, in all respects, appear to encompass only specimens which meet the 60 ml. requirement. Finally, the Guidelines specify, in section 2.7(b), that a MRO "shall not . . . consider the results of urine samples that are not obtained or processed in accordance with these Guidelines."
The proposal, on the other hand, clearly contemplates the handling, processing, transporting, and testing of a specimen as small as 10 ml. We reject, in this regard, the Union's assertion that "there is nothing in the Guidelines prohibiting the collection and retention of a specific amount of urine in excess of 60 ml. for use as a split sample." Reply Brief at 5. The Guidelines refer to and encompass urine specimens which, without exception, appear to require 60 ml. of urine. Indeed, in section 2.2(f)(10), the Guidelines specifically refer to samples smaller than 60 ml. as "partial specimens" and require collection site personnel to combine partial specimens in a single container so as to satisfy the 60 ml. requirement.
In addition, it is clear that the proposal would require the MRO to consider the results of the test performed on the split sample. We agree with the Union, in this regard, that the proposal does not specify that the split-sample test is to be considered by the MRO. Nevertheless, as acknowledged by the Union and consistent with the plain wording of the proposal, the test results of the split sample would be "reported" to the MRO. The proposal would be meaningless if the test results reported to the MRO were not to be considered by the MRO.
As noted previously, section 2.7(b) of the Guidelines prohibits an MRO from considering test results of "urine samples that are not obtained or processed in accordance with [the] Guidelines." Specimens smaller than 60 ml. may not be obtained or processed in accordance with the Guidelines and aliquots for testing may not be taken from such specimens. As such, the proposal would require the MRO to consider test results in situations where the Guidelines specifically prohibit such consideration. We conclude, therefore, that insofar as the proposal requires the MRO to consider test results from aliquots taken from specimens smaller than 60 ml., the proposal conflicts with the Guidelines.
Except for the conflict with the 60 ml. requirement, we have rejected the Agency's arguments that the proposal conflicts with the Guidelines. Moreover, in our view, the proposal's conflict with the Guidelines is a "technical" one which could be cured by the Union in either of two ways. Accordingly, as the proposal expressly requires adherence to the Guidelines, if the proposal were modified so as to eliminate the conflict with the 60 ml. requirement, there would be no basis on which to find the proposal inconsistent with the Guidelines.
With regard to the latter point, we note the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. FLRA, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen Proving Ground). In that case, the court found that a proposal requiring the agency to assure that drug tests were not performed by unqualified or uncertified operators or test personnel was nonnegotiable. In so finding, the court noted comments by the DHHS explaining why it elected not to include specific qualifications for operators and other test personnel and stated that, "[a]lthough these remarks do not carry the same mandatory authority as the Guidelines themselves, they suggest that [the union's] qualifications proposal is inconsistent with the spirit, if not the letter, of the Guidelines." Id. at 474.
In addition, the court envisioned "troublesome scenarios" flowing from the proposal. The court noted, among other things, that under the proposal "[t]he framework of management responsibility for laboratory staff that HHS laid out in its Response to Comments . . . would be undermined to the extent that laboratory management would, additionally, have to hire only employees who meet the stricter standards generated pursuant to the proposal." Id. The court concluded that "[t]he proposal's potential conflicts with the Guidelines provide sufficient grounds for our holding that [the union's] qualifications proposal is not negotiable." Id.
If modified to conform to the 60 ml. requirement, the proposal now before us would not conflict with the Guidelines. The disputed proposal would impose no standards in addition to, or in conflict with, those prescribed by the regulations.
Moreover, the proposal would not present the "troublesome scenarios" envisioned by the court in Aberdeen Proving Ground. Id. The proposal only would require that an additional test, not expressly barred by the regulations, be conducted in accordance with the Guidelines, and that the results be reported to the MRO. Similarly, in accordance with the HHS Guidelines, the MRO would continue to be responsible for verifying that positive laboratory tests indicate illegal drug usage. The proposal would not in any way undermine the framework established in the Guidelines for collecting and testing specimens, or evaluating the specimens and taking actions consistent with such evaluation.
Second, it appears that the proposal could be modified in a different respect so as to be consistent with the Guidelines. We note, in this regard, that, in addition to the proposal discussed above, the court in Aberdeen Proving Ground also considered, and found nonnegotiable, a proposal enabling employees to "present new or split sample results to a supervisor 'in an attempt to refute the result' of the official Army drug test." 890 F.2d at 472. It is clear, at the outset, that the split sample encompassed by the proposal in Aberdeen Proving Ground differed from the one now before us because, among other things, the split sample in Aberdeen was to be maintained by the employee and tested independently.
As relevant here, the court found the proposal nonnegotiable because it allowed "a nonmedical personnel supervisor to refute" an MRO's determination that a drug test indicated illegal drug use. Id. (emphasis in original). In so holding, however, the court stated that "enabling the 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, . . . ." Id. We agree. Accordingly, consistent with the court's discussion of the MRO's authority in Aberdeen Proving Ground, it would appear that the proposal now before us also would be consistent with the Guidelines if it were modified so as to provide the results of the split-sample test to the affected employee's supervisor, for use in facilitating the supervisor's personnel decisions, instead of to the MRO.
Finally, we note the Agency's argument that the proposal is nonnegotiable because it requires the expenditure of funds for testing split samples in violation of the Supplemental Appropriations Act of 1987 (the Act). Section 503 of the Act precludes the expenditure of appropriated funds, with certain exceptions not applicable here, for implementing and administering drug testing programs unless and until the Secretary of Health and Human Services meets certain obligations. Section 503(a)(1)(A)(iii) of the Act obligates the Secretary to certify in writing to the appropriations committees of the Congress that, among other things, all agency drug testing programs comply with the HHS Guidelines.
Under the Act, expenditure of funds would be barred if the Secretary of Health and Human Services did not certify that the Agency's program complies with the HHS Guidelines. As the proposal does not address the responsibilities of the Secretary of HHS, it is not clear that the portion of the Act relied on by the Agency would apply so as to render the proposal nonnegotiable. More importantly, however, if the proposal were modified so as to be consistent with the Guidelines, the Act would not bar negotiation over the proposal even if the Act applied in the manner argued by the Agency.
As the proposal conflicts with the HHS Guidelines, it is nonnegotiable under section 7117(a) of the Statute. Nevertheless, for the reasons discussed above, we conclude that the defect in the proposal may be cured by the Union. Accordingly, consistent with efficient administration of the Statute, and to provide guidance to the parties, we will address the Agency's remaining arguments.
2. The Right to Contract Out
The Agency asserts that the proposal requires it to contract with its current laboratory for the performance of the second test. This requirement, the Agency asserts, directly interferes with its right to contract out. However, nothing in the plain wording of the proposal addresses in any way which contractor the Agency will use to perform any aspect of its drug testing program. The Union states, in this regard, that the proposal "does not at all involve the Union with the Agency's selection of a particular drug testing lab." Reply Brief at 8-9. As the Union's statement is consistent with the plain wording of the proposal, we will adopt it for the purposes of this decision.
Moreover, consistent with the plain wording of the proposal, we find nothing in the Union's acknowledgement that the Agency has already entered into a contract with a laboratory which would support an interpretation of the proposal as requiring the Agency to use that laboratory for the second test. Put simply, the Agency is free to choose "the [A]gency's drug testing laboratory" under the proposal. As such, the Agency's reliance on International Organization of Masters, Mates and Pilots, Panama Canal Branch and Panama Canal Commission, 32 FLRA 269, 270-73 (1988), is misplaced. In that case, the disputed proposal would have made "management's choice of a laboratory to conduct the confirmatory test contingent on employee agreement to the use of that laboratory." Id. at 272. In this case, the Agency is free, without employee or Union involvement, to designate a laboratory.
We reject also the Agency's contention that the proposal directly interferes with its right to contract out by requiring negotiations with a contractor over the additional drug testing procedures. According to the Agency, "[t]hese additional procedures unavoidably change the terms of the contractor-agency relationship." Statement of Position at 9. The Agency does not further explain how the proposal would "unavoidably change" the relationship between itself and its contractor or how such a change would directly interfere with its right to contract out. We find no basis, therefore, for concluding that the proposal directly interferes with the Agency's right to contract out.
We note, in this regard, that as drug testing programs are, in part, performed by contractors, implementation of many drug-testing proposals would necessitate agency action involving contractors. In our view, however, and consistent with our discussion below, that effect alone does not constitute direct interference with an agency's rights under section 7106 of the Statute.
3. The Rights to Assign Employees and Work
The proposal is similar to Provisions 5 through 7 in American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187 (1991) (Merchant Marine Academy). There, we determined that the hearing before an ad hoc committee, required by the provisions, concerned procedural steps to be followed by management prior to exercising its right to remove. Consequently, we found that the parts of the provisions requiring the establishment of such a committee constituted negotiable procedures under section 7106(b)(2).
Similarly, the proposal here prescribes an additional step to be taken before the Agency decides whether an employee represents a security risk because of illegal drug usage. Other than requiring the test to be performed and submitted to the MRO, the proposal imposes no limitations on management's rights under section 7106 of the Statute.
In Merchant Marine Academy, we observed that:
Section 7106(b) of the Statute provides that "nothing" in section 7106 shall preclude negotiation over "procedures which management officials of the agency will observe in exercising any authority" under section 7106. Many procedures necessitate the assignment of work to fulfill their requirements. To bar the negotiation of