41:0332(36)NG - - NFFE Local 1953 and Air Force, Barksdale AFB, LA - - 1991 FLRAdec NG - - v41 p332
[ v41 p332 ]
The decision of the Authority follows:
41 FLRA No. 36
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). This 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.
a) If an employee can provide at least 70 ml. of urine during a specimen collection, the collection site person will take the urine 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 requirements of the HHS [Department of Health and Human Services] Guidelines. Once the samples arrive at the laboratory, the security and analysis procedures contained in Section 2.4 of the Guidelines will be followed.
b) If an employee is unable to produce 70 ml. of urine at the time of a specimen collection but can produce at least 60 ml., the employee will remain at the collection site and be given a reasonable amount of liquid (approximately 8 oz. every 20-30 minutes) until the employee is able to urinate again. An employee will be given no more than 3 hours to drink liquids and attempt to provide enough urine for a reserve sample of at least 10 ml.
c) If confirmatory testing of the original sample yields a positive test result, the reserve sample will be tested. Test results from both the official and reserve samples will be reported to the MRO [Medical Review Officer] pursuant to Section 2.4(g) of the HHS Guidelines.(*)
III. Positions of the Parties
A. The Agency
The Agency asserts that the proposal is nonnegotiable because it is inconsistent with the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS Guidelines), which are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute.
First, the Agency argues that the proposal is not materially different from the proposal found to be inconsistent with HHS Guidelines and therefore nonnegotiable 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). The Agency also asserts that the proposal violates the HHS 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.
The Agency further contends that the proposal requires that a second specimen be collected from every employee at the time the original specimen is obtained and that this requirement conflicts with the Guidelines. The Agency states that the HHS Guidelines dictate that a second sample will be obtained when there is reason to suspect alteration, adulteration or substitution of an original sample and provide that when a second sample is obtained it will be done under the direct observation of collection site personnel. The Agency claims that the proposal "is inconsistent with these stated prerequisites and procedures and meets neither the literal requirements nor the intent of the [G]uidelines." Statement of Position at 4. In addition, the Agency asserts that the proposal conflicts with the HHS 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)(B) of the Statute by requiring the Agency to contract with its designated laboratory to perform additional functions required by a second test. The Agency also asserts that the proposal's requirements, including that additional specimens be packed and shipped and that duplicate sets of records be maintained, directly and excessively interfere with management's rights to assign employees and work under section 7106(a)(2)(A) and (B) of the Statute.
B. The Union
The Union states that the proposal is "intended to serve as a safeguard against administrative and analytical errors during the course of drug testing." Union Response at 2. The Union argues that the proposal is consistent with the Guidelines because the Guidelines do not specifically prohibit the collection of split samples and nothing in the Guidelines "prohibits the collection and retention of an amount of urine in excess of 60 ml. for use as a split sample." Id. at 4.
The Union further asserts that the proposal's requirement that a second specimen be tested is not inconsistent with the Guidelines' provisions regarding reanalysis of original specimens because a "second test of either the official sample or split sample is not mandated by the proposal" and "the MRO retains the full scope of authority granted by the Guidelines . . . [to] determine that a reanalysis of either sample is unnecessary." Id. at 5. The Union explains that the "proposal simply requires two separate specimens, each tested only once." Id. The Union contends that the proposal would have no effect on the Agency's ability to order an employee to produce a second specimen if the collection site personnel suspected tampering. In conclusion, the Union asserts that the proposal "adheres precisely to the scientific and technical requirements articulated by the HHS Guidelines." Id. at 6.
In addition, the Union maintains that the proposal constitutes a negotiable procedure under section 7106(b)(2) to be followed by the Agency in the implementation of the drug testing program. The Union also contends that, in the alternative, the proposal is an appropriate arrangement for employees adversely affected by the exercise of management's rights and is therefore negotiable under section 7106(b)(3) of the Statute.
IV. Analysis and Conclusions
Sections (a) and (c) of the proposal and the parties' arguments with respect to those sections are substantially identical to the proposal at issue in National Federation of Federal Employees, Local 1384 and U.S. Department of Air Force, 3245th Air Base Group, Hanscom Air Force Base, Massachusetts, 41 FLRA No. 17 (1991) (Hanscom). In Hanscom, the Authority reiterated that, as the HHS Guidelines constitute Government-wide regulations within the meaning of section 7117(a)(1) of the Statute, if a proposal conflicts with the HHS Guidelines it is nonnegotiable. In that case the Authority determined that the proposal conflicted with the HHS Guidelines and was, therefore, nonnegotiable. The Authority further determined that if the proposal's inconsistency with the Guidelines were cured, the proposal did not interfere with any of management's rights under section 7106(a) of the Statute.
For the reasons discussed at length in Hanscom, we find that sections (a) and (c) of the proposal do not interfere with management's rights to contract out, to assign employees or to assign work under section 7106(a)(2)(A) and (B) of the Statute. However, we conclude, based upon our reasoning in Hanscom that as section 2.2(f)(10) of the Guidelines requires that a specimen of at least 60 ml. be collected for testing, sections (a) and (c) of the proposal are nonnegotiable because they conflict with the Guidelines. We note that, as we found in Hanscom, sections (a) and (c) conflict with the Guidelines only to the extent that those sections require the MRO to consider test results from aliquots taken from specimens smaller than 60 ml. and that, as sections (a) and (c) of the proposal expressly require adherence to the Guidelines, if those sections were modified so as to eliminate the conflict with 60 ml. requirements, there would be no basis on which to find the proposal inconsistent with the Guidelines.
Similarly, with respect to section (b) of the proposal, we conclude that because it contemplates the handling, processing and testing of a specimen as small as 10 ml. that section also conflicts with the Guidelines and is, therefore, nonnegotiable. However, if the requirement to test a specimen as small as 10 ml. were removed, we would find section (b) to be negotiable, in the same manner as sections (a) and (c). Additionally, as explained below, we would find no other bases on which to conclude that the remaining portions of section (b) are outside the duty to bargain.
Section (b) requires an employee to remain at the collection site and be given a reasonable amount of liquid, specified as approximately 8 oz. every 20-30 minutes, for a period of not more than 3 hours in order to provide enough urine for a reserve sample. The Agency argues that the proposal requires the collection of a second sample from every employee at the time the original sample is obtained, and that this requirement conflicts with the Guidelines. According to the Agency, sections 2.2(f)(13)-(16) of the Guidelines provide that a second sample is to be obtained when there is reason to suspect alteration, adulteration or substitution of the original sample, and that the second sample must be obtained under the direct observation of collection site personnel. The Agency also argues that the proposal would require collection site personnel to monitor and attend to employees who cannot produce a sample of more than 60 ml. The Agency states that as the Guidelines require monitoring and attendance only when an employee cannot produce a sample of at least 60 ml., the proposal conflicts with the Guidelines and "adds additional duty to the collection site personnel." Statement of Position at 6.
We find that section (b) is not inconsistent with the Guidelines in the manner argued by the Agency. First, the proposal does not require that a second sample be collected from all employees tested, as argued by the Agency; rather, it requires a second sample only from those unable to produce more than is needed for an initial testing. Second, sections 2.2(f)(13)-(16) of the Guidelines apply only when the Agency suspects alteration, adulteration, or substitution of the sample. There is nothing in subsection (b) of the proposal to indicate that it is intended to apply under the circumstances set forth in sections 2.2(f)(13)-(16). Further, there is nothing in the cited sections of the Guidelines that precludes the taking of a second sample in other circumstances, such as that described in section (b) for a reserve sample. Consequently, we find no inconsistency between section (b) and sections 2.2(f)(13)-(16) of the Guidelines.
We also find that section (b) does not conflict with section 2.2(f)(10) of the Guidelines by requiring collection site personnel to monitor and attend to employees who cannot produce a sample of more than 60 ml. Section (b) establishes a procedure for employees to provide a sufficient sample for a reserve specimen. Nothing contained in the Guidelines relating to the collection of an initial 60 ml. specimen, prohibits a procedure designed to allow employees to produce a reserve sample. As we noted in Hanscom, the Department of Health and Human Services, in its comments to the Guidelines, rejected the presentation of a private or split sample to the MRO only where the sample did not fully comply with the Guidelines. 41 FLRA No. 17, slip op. at 6.
The only specific argument raised by the Agency is that section (b) would require collection site personnel to perform additional work, an argument that relates to the exercise of management's rights. We find that the portion of section (b) which the Agency argues would add additional duties to the collection site personnel does not directly interfere with any of the management rights alleged, particularly the rights to assign employees and assign work. As we found in Hanscom, relying on our earlier decision 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), proposals that are procedural in nature but which entail some assignment of work to employees do not necessarily directly interfere with the exercise of management's section 7106(a) rights. We view the requirements of section (b) to be to the same effect and, therefore, not inconsistent with management's rights. We find no other basis on which to conclude that section (b) does not fully comply with the Guidelines and permit the full exercise of management's rights.
In sum, we conclude that the proposal is inconsistent with the Guidelines by providing for the handling, processing and testing of specimens that do not meet the requirements set forth in the Guidelines. If this inconsistency were cured, we would find the proposal to be within the duty to bargain, insofar as the proposal does not otherwise conflict with the Guidelines or interfere with the exercise of management's rights to contract out, assign emp