DEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS PITTSBURGH DISTRICT PITTSBURGH, PENNSYLVANIA and LOCAL 2187, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL
  
        

In the Matter of

DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS
PITTSBURGH DISTRICT
PITTSBURGH, PENNSYLVANIA

and

LOCAL 2187, AMERICAN FEDERATION OF
      GOVERNMENT EMPLOYEES, AFL-CIO

 

Case No. 02 FSIP 156

DECISION AND ORDER

    The Department of the Army, U.S. Army Corps of Engineers, Pittsburgh District, Pittsburgh, Pennsylvania (Employer) and Local 2187, American Federation of Government Employees, AFL-CIO (Union) filed a joint request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119.

    Following an investigation of the request for assistance, which concerns the implementation of a random drug testing program, the Panel determined that the dispute should be resolved through single written submissions from the parties. After receiving their submissions, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a Decision and Order. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.

BACKGROUND

    The Pittsburgh District is part of the Lakes and Rivers Division (LRD) of the Corps of Engineers.(1)  It provides infrastructure support, performs overseas flood control projects, and maintains dams and reservoirs. The Union represents a bargaining unit consisting of approximately 570 Wage Grade employees who work in such positions as lock and dam operator, equipment mechanic, equipment mechanic supervisor, and flood control operator.(2) The parties’ collective bargaining agreement is effective through May 2004.

ISSUE AT IMPASSE

    The parties disagree over whether the drug testing program should use a single or split sample collection method.(3)

POSITIONS OF THE PARTIES

1. The Employer’s Position

   The Employer proposes to use the single sample collection method, "the standard model for drug testing" outlined in DHHS regulations. Because DHHS has not mandated that the split specimen method be used, it should be assumed that DHHS has determined that single-sample testing "is sufficient to safeguard" employees’ rights.(4) In addition, adoption of the split sample collection procedure would result in added costs. There are approximately 335 employees in TDPs: each specimen collection kit costs $2; and each test of the second specimen (Bottle B) costs $100 per drug. There is no way to predict exactly how much the additional testing would cost the agency.(5)

   The Employer argues that the split sample collection method that the Union proposes is unnecessary and provides no "added benefit" to employees. No evidence has been offered that retaining and testing a second urine sample increases the reliability of the test results. The Union also fails to recognize that under the Guidelines, any re-analysis of the sample, be it from Bottle A or Bottle B, will be performed utilizing the same GC/MS test, and that it will only be a confirmatory test. Under the Guidelines, an employee has an opportunity, after a positive test result and before any adverse action is taken, to provide evidence of a valid medical prescription which explains the positive reading. Moreover, if discipline is proposed, the employee may request that the retained single sample be retested as part of his or her defense to disciplinary action, and may also challenge the validity of the laboratory’s procedures. Finally, the single sample collection procedure is consistent with the collection procedure of the six other districts in the Division, and its adoption in the Pittsburgh District would, therefore, "promote uniformity among all employees being tested."

2. The Union’s Position

   The Union proposes that a split sample procedure be used. It is "paramount" that the most accurate test procedures be utilized to minimize the possibility of false test results, and thereby reduce the risk that innocent employees will be removed. Such a procedure ensures that when one portion of a urine specimen tests positive for an illegal substance, the second portion of the same specimen would be subject to a confirmatory test. The Employer’s assertion that the split sample procedure would be too costly is exaggerated; currently, only three job classifications are included in the TDPs. Moreover, the split sample procedure will actually save money; the costs associated with the removal or rehabilitation of employees who test positive is far greater than the cost of an additional specimen test. The procedure adopted by other districts in the LRD is not relevant because the Guidelines expressly authorize agencies to use either collection method.

   Alternatively, the Union proposes to withdraw its split sample collection proposal if the management and District employees responsible for implementing and administering the drug-testing program, including those in the Office of Counsel, Operations Managers, Assistant Operations Managers, and Civilian Personnel Advisory Service employees, volunteer to be included in the pool of employees to be tested. Random drug testing "should be administered fairly and equitably, and all employees in the district should be subjected to random testing." Because management officials "determine critical policy matters such as budget, safety, design and staffing," they should be included in the pool of employees to be tested. If both management and the current TDPs were included in testing, the Union agrees that the split-sample collection method might be too costly.

CONCLUSION

   Having carefully reviewed the evidence and arguments presented in this case, we conclude that the DHHS authorizes agencies to utilize a split sample collection procedure, and the Employer acknowledges that the cost of additional collection kits is minimal. In our view, the collection method favored by the Union provides, at a minimum, a valuable safeguard to those employees who might be subject to discipline, including removal from Federal service, based on an erroneous drug test result. We are persuaded, therefore, that the option of a split sample is warranted. Because no evidence has been offered as to the frequency of false positive readings, however, we shall order that the expense of any additional confirmatory test, including specimen collection kits and additional testing, be borne by the employee who, under the Guidelines, may elect, or not elect, to proceed with testing of the second portion of the specimen.

ORDER

   Pursuant to the authority vested in it by the Federal Service Labor-Management Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under § 2471.11(a) of its regulations, hereby orders that the following be adopted:

   The split sample collection method shall be utilized in the Pittsburgh District’s drug testing program. All costs associated with the testing of any second portion of the sample (Bottle B) shall be borne by the employee (donor) making the request.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

 

December 9, 2002
Washington, D.C.

1. According to the Employer, there are six other districts in the LRD.

2. The parties appear to have reached a prior understanding that the first three job classifications would be considered “testing designated positions” (TDP).

3. Drug testing programs in Federal agencies are governed by the “Mandatory Guidelines for Federal Workplace Drug Testing Programs,” published by the Department of Health and Human Services (DHHS). See 58 Fed. Reg. 6062 (1993)(Guidelines). Pursuant to the Guidelines, in a drug test, a urine specimen (30ml for single specimen, 45ml for split specimen) is collected by the collection site personnel and forwarded to a laboratory that will test the specimen for the presence of illegal drugs. If the initial screening is positive, a confirmatory test using gas chromatography/mass spectrometry (GC/MS) must be conducted. The laboratory must report the test results to the agency’s Medical Review Officer (MRO) within 5 working days after receipt of the specimen. If the test is positive, the employee is afforded an opportunity to submit proof that the positive result was caused by a valid prescription. The Guidelines require laboratories to “retain and place in properly secured long-term frozen storage for a period of 1 year all specimens confirmed positive.”

4. In a split sample collection method, the urine specimen is collected in one container after which its temperature is tested. If the temperature falls within the acceptable range, it is then split into two containers (Bottles A and B). Both specimens are sent to the same laboratory for testing. If Specimen A is verified positive by an