COURT SERVICES AND OFFENDER SUPERVISION AGENCY WASHINGTON, D.C. and LOCAL 727, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL 

 

In the Matter of 

COURT SERVICES AND OFFENDER
  SUPERVISION AGENCY
WASHINGTON, D.C. 

 

 

and

 LOCAL 727, AMERICAN
  FEDERATION OF GOVERNMENT
  EMPLOYEES, AFL-CIO

    Case No. 04 FSIP 49
  

 DECISION AND ORDER

    The Court Services and Offender Supervision Agency, Washington, D.C. (Employer or CSOSA) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Local 727, American Federation of Government Employees, AFL-CIO (Union).

    After investigation of the request for assistance, the Panel determined that the dispute, which arises from bargaining over implementation of a drug-free workplace program (DFWP),[1]/ should be resolved through an informal conference in Washington, D.C. with Panel Member Grace Flores-Hughes.  The parties were informed that if no settlement was reached, Member Flores-Hughes would notify the Panel of the status of the dispute, including the parties’ final offers and her recommendations for resolving the impasse.  After considering this information, the Panel would resolve the dispute by taking whatever action it deems appropriate, which could include the issuance of a binding decision.

    In accordance with the Panel’s procedural determination, Member Flores-Hughes conducted an informal conference with the parties on April 6 and 7, 2004.  Agreement was reached on eight issues, and the Union withdrew four proposals on other issues.  At the end of the meeting, the parties identified their final offers on the five issues that remain in dispute.  They also filed brief post-conference statements of position to discuss continuing jurisdictional questions and the merits of their final offers.  Member Flores-Hughes has reported to the Panel and it has now considered the entire record, including the parties’ post-conference statements.  

BACKGROUND

    CSOSA was created by the National Capital Revitalization and Self-Government Act of 1997, and through its employees supervises offenders who are on probation, parole, and supervised release under the D.C. Code.[2]/  The Union represents 351 bargaining-unit employees who work as Community Supervision Officers (CSOs), at grades GS-5 through -12.  The parties have no collective bargaining agreement (CBA), although they had begun negotiating over an eight article interim package in November 2002.[3]/

ISSUES AT IMPASSE

    The parties essentially disagree over whether: (1) in a list of grounds for requiring an employee to take a reasonable suspicion drug test, the term “observable phenomenon” or “direct observation” should be used to describe possible sources of evidence; (2) accident-related drug tests should be limited to on-duty accidents or also be conducted when they occur off-duty; (3) employees subject to drug tests would be permitted to annotate the chain-of-custody form to indicate use of over-the-counter and prescription drugs to explain a positive drug test result; (4) provisions regarding urine sample collections  should be added to what is included in the Medical Review Officer (MRO) Manual and Mandatory Guidelines to address: (a) what happens when an employee has problems producing a urine sample at the test site; (b) any corroborating medical explanations; and (c) a grievance procedure; and (5) an 11-section grievance procedure should be made a part of the DFWP. 

POSITIONS OF THE PARTIES  

1.  Reasonable Suspicion Drug Testing - Grounds 

      a.     The Employer's Position 

    The Employer proposes the following wording on the issue of grounds for reasonable suspicion drug testing:

Reasonable suspicion testing may be based upon, among other things:  1.  Observable phenomena, such as direct observation of drug use or possession and/or physical symptoms of being under the influence of a drug; 2. A pattern of abnormal conduct or erratic behavior [emphasis added]. 

The proposed wording is identical to that used in the Model Plan developed for use by Federal agencies in drafting their DFWPs.  The same wording is discussed in NTEU v. Yeutter, 918 F.2d 968, 972 (D.C. Cir. 1992) (Yeutter); there, the court “upheld [the Department of] Agriculture’s Reasonable Suspicion provision and did not disturb the language.”  As to the wording in item 1., in Webster’s 10th Edition, “‘observable’ is defined as ‘capable of being observed’ and ‘phenomena,’ as ‘an observable fact or event.’”  Although the Union proposes to delete that term, when the dictionary definitions are considered, the Union’s view that the term would allow “testing based on ‘unsubstantiated rumor’” is not supported.  Similarly, with regard to item 2, the Union’s opinion that only management personnel should make observations of “abnormal” and “erratic” behaviors is not warranted.  Because “bargaining unit employees spend considerable time in the field making visits to the homes and businesses of offenders,” that is the more likely location for such behaviors to occur.  In those circumstances, management would have to “verify such reports through direct observation” or adequately “validate” them.  The Union’s proposal would make the list all-inclusive, and “significantly limit management’s ability to exercise its authority in exercising internal security practices and does not reflect the reality of a bargaining unit member’s workplace.” 

    b.     The Union's Position 

    For the first two items in a list of justifications for reasonable suspicion drug testing, the Union proposes: 

Reasonable suspicion testing may be based upon, among other things:  1.  Direct observation of drug use or possession and/or physical symptoms of being under the influence of a drug; 2. Direct observation of a pattern of abnormal conduct or erratic behavior [emphasis added]. 

Drug testing, if “not based on probable cause,” would amount to an unreasonable search in violation of the 4th Amendment.[4]/  Reasonable suspicions that would support conducting a drug test, therefore, should not be established by “unsubstantiated rumors.”  As examples, the courts have found reasonable suspicion tests justified based on: 

first hand observation by superiors and company officials, personal observation of an employee’s performance, appearance, behavior, speech or odor, specific articulable facts that meet an objective standard of reasonable cause, physical symptoms, slurred speech and a history of suspicious mood swings.

CONCLUSION

    Having carefully considered the evidence and arguments presented by the parties on this issue, we conclude that the parties should adopt the Employer’s proposal.  In our view, the Union has not demonstrated a need to eliminate the phrase “observable phenomena,” which is applied in the model drug-testing plan developed by the Federal Interagency Coordinating Group.  Furthermore, the phrase does not imply, as the Union suggests, that the Employer’s decision to test an employee would be based on “unsubstantiated rumors.”  Instead, we agree with the Employer that “observable phenomena” means that decisions to test an employee would be supported by actual observed events, which then must be verified before any testing is required.  Accordingly, the Employer’s proposal shall be adopted to resolve the parties’ dispute over this matter. 

2.  Additional Types of Drug Testing - Accident

      a.    The Employer’s Position 

    The Employer proposes that the parties’ agreement over the DFWP include the following wording: “It [the Agency] also has a legitimate interest in determining the cause of serious accidents so that it can undertake appropriate corrective measures.”  On the merits, if a CSO is involved in a serious accident, regardless of when it occurs, it is appropriate to test the CSO because his or her position is in law enforcement, and is sensitive and safety-related.[5]/  These employees are “front line law enforcement officers with proximity to criminals, drugs or drug traffickers.”   There is a legitimate governmental interest in ensuring that employees who supervise those on probation, parole, and supervised release be drug free themselves. 

    As a procedural matter, in light of the status of the CSO position, the Union’s proposal, which would limit testing related to accidents to those that occur while the employee is on-duty, interferes with management’s right to determine its internal security practices and is not an appropriate arrangement.[6]/ 

    b.     The Union’s Position   

    The Union proposes that: 

It [the Agency] also has a legitimate interest in determining the cause of serious accidents that occur on duty so that it can undertake appropriate corrective measures” [emphasis added]. 

Affected employees are not law enforcement officers, nor are their positions sensitive and safety-related.  Rather, they supervise individuals who “pose a minimum risk to the community at large,” and are not considered to “jeopardize the public welfare.”[7]/  This conclusion about the status of CSOs is consistent with the fact that they provide purely advisory recommendations regarding the release of those they supervise.  Instead, it is the D.C. Superior Court Judges and the U.S. Parole Commission that assess the risk-level of detainees and decide whether such individuals ought to be released from detention.  To be consistent with Yeutter,[8]/ because unit employees do not occupy safety or security-sensitive positions, the Employer should restrict accident-related testing to on-duty incidents.[9]/ 

CONCLUSION 

      On the issue of whether employees involved in serious off-duty accidents should be subjected to post-accident drug tests, upon consideration of the parties’ final offers and statements of position, we shall order adoption of the Employer’s proposal to resolve their dispute.  On the merits, the Union has failed to demonstrate that post-accident drug testing should be foreclosed because an accident occurs when the employee is off-duty.  Scrutiny of CSOs’ involvement in serious accidents, regardless of when they happen, helps ensure that these employees, who supervise individuals adjudged guilty of criminal offenses, including those related to illegal drugs, are not themselves engaged in criminal activity.  The Union’s contention that off-duty testing is not warranted because the affected employees are not in law enforcement, sensitive, and safety-related positions, appears misplaced.  In this regard, the Secretary of DHHS has certified the Employer’s DFWP, which includes designating the positions of CSOs as subject to random drug testing.  That designation is directly related to a finding by the CSOSA that their duties are sensitive.[10]/  To the extent that the Union wishes to challenge that designation, the Panel is not the appropriate forum. 

3.  Test Procedures – Annotating Chain-of-Custody Form 

    a.     The Employer’s Position

    The Employer opposes permitting employees to annotate the chain-of-custody form that is used to track the handling and storage of the employee’s urine sample from the drug-testing site to its final disposition.  The process the Union proposes is not an appropriate arrangement because it would “place an additional burden on the Employer [] to ensure that such information remain with the control form as it goes through numerous handlings.”    The proper procedure is for employees to provide any information that might explain a positive drug test result, such as prescriptions and over-the-counter medications, directly to the MRO.  The proposed annotation is, at minimum, redundant.  In addition to the chain-of-custody form not being a location where the MRO would expect to find such material, the comment section “is for notations by the collector/laboratory to record anything  [] of a remarkable nature relative to the collection/processing itself.”  Moreover, such information, standing alone, is not particularly useful since it “will not prevent the laboratory from reporting a positive drug test result to the MRO,” and “the MRO still would contact the donor for verifiable information.”  However, the employees’ use of the back of their copy of the test collection form to make contemporaneous notes is recommended:  “This is to provide the donor with information that they can refer back to when discussing a positive result with the MRO.”

      b.     The Union’s Position

           The Union proposes that: 

At the testing site, any employees selected for testing may provide, on the chain-of-custody form, a medical history, including evidence of a valid drug prescription and/or use of over-the counter drugs.  This information provided by the employee will be kept confidential in accordance with 42 C.F.R., the Privacy Act 5 U.S.C. section 552A and other applicable federal rules and regulations.  In addition, the Medical Review Officer (MRO) will assure that an individual who has tested positive has been afforded an opportunity to justify the test results in accordance with OPM PM Chapter 792. 

The proposal is an appropriate arrangement because employees may be adversely impacted if they are unable to annotate the chain-of-custody form with information that provides a legitimate reason to explain what would otherwise be considered a positive test result.  Nothing in the Federal Register (page 29917) on specimen identification bars an employee from including more that the minimum information listed on the form.  Furthermore, given that probationers and parolees, who are also tested for illegal drug use, are permitted to bring with them to the testing site evidence of legitimate prescription and over-the-counter medication use, it would be fair to permit employees a similar opportunity to present exonerative information at the earliest moment to avoid the potential for any stigma.  In light of the qualifications of laboratory personnel, and the laboratory’s role in reviewing certifying test, “showing the collector a valid prescription and having them record it on a form (that will be sent to the MRO) would save time and money.”  Such annotations could also prevent an employee’s reputation from being damaged when the MRO is unable to contact the employee within the specified 14-day period regarding a positive test result.  In such circumstances, the MRO would tell the Drug Program Coordinator (DPC) about the positive result, and the DPC would give the result to the Agency.  If the MRO sees an annotation on the employee’s chain-of-custody form regarding legitimate drug use, such scenarios could be avoided.  

CONCLUSION

    After full consideration of the parties’ arguments on the issue of chain-of-custody annotations, we shall order the Union to withdraw its proposal on the issue.  While nothing may prevent the use of the form for the purpose the Union proposes, the more appropriate avenue for explaining a positive test result is directly to the MRO, in accordance with the DHHS Guidelines.  In our view, the Union’s proposal inserts a confusing option whose benefit to employees would be marginal, at best.  It also could give employees a false sense of security if they believe that their annotations on the form, without discussion and appropriate documentation being presented to the MRO, would be sufficient to refute any positive test result. 

4.  Urine Test Problems

           a.     The Employer’s Position

      The Employer essentially contends that the Union should withdraw its proposal because the Mandatory Guidelines, the MRO Manual, and the Urine Specimen Collection Handbook (Handbook) for test site personnel, adequately cover the topic of problems with producing a urine sample.  In this regard, the Urine Specimen Collection Handbook provides a seven-step procedure for dealing with donors who experience difficulty providing a urine sample.  The MRO Manual, Chapter 6, Section B, Shy Bladder, developed by the Substance Abuse and Mental Health Services Administration (SAMHSA), an agency within DHHS, serves as a guide to the MRO.[11]/  Under the latter procedure, it is the “examining physician” who determines whether or not the employee’s failure to produce a specimen is caused by a medical problem.  The examining physician also provides the MRO with a brief written statement addressing the basis for the employee’s failure.  The Union has not provided evidence “to support their assumption that their procedure is necessary and/or will achieve the stated goal.”  As to appending a grievance procedure to the parties’ DFWP agreement, that subject has already been raised by the Union as part of the parties’ interim agreement negotiations, which precludes its introduction during bargaining over the DFWP.[12]/  In the alternative, the parties will likely take up the matter as part of bargaining for an initial CBA.  Since the procedures in the MRO Manual appear adequate to address such potential problems, and a grievance procedure is not appropriate for the parties’ DFWP agreement, the Union should withdraw its proposal.    

           b.     The Union’s Position

    The Union proposes that:

If an employee cannot provide the required amount of urine, the employee shall be given a reasonable amount of liquid to drink for this purpose and be provided a reasonable period (a maximum of 3 hours) to provide proper specimen.  If at the end of this period, the employee still cannot provide a sufficient quantity for testing, this inability will be noted on the chain of custody form.  An employee unable to provide the required amount of urine specimen within the 3-hour time limit due to medical physiological conditions will be given the opportunity to provide documentation in support of the employee condition.  Such documentation shall be considered by the Agency in determining the appropriate course of action.  The MRO shall review the documentation and determine if the existing medical condition precluded the employee from providing the required amount of urine, this failure will not be considered a refusal to take the test.  An employee may contest the decision of the MRO/Agency using the following grievance procedure.”  [See the issue below for a synopsis of the Union’s proposed grievance procedure.] 

Because some employees, including those who may have been the victims of abuse or have certain medical conditions, may have difficulty producing a sufficient quantity of urine, they     should be given sufficient time to produce a sample.  Further, such individuals should not be forced to undergo an examination by a strange physician to corroborate their explanation of the cause.  As no grievance procedure has yet been negotiated, one should be included here so that an adversely affected employee has recourse to grieve issues arising from implementation of the Employer’s policy.  Otherwise, an employee would be “precluded from appealing the decision to an outside Authority.”

CONCLUSION

    Having thoroughly considered the evidence and arguments presented by the parties on the issue of urine sample collection problems, the Union once again shall be ordered to withdraw its proposal.  In our view, the Union has not demonstrated a need for its proposed procedure in view of the complete procedure provided in the Handbook and the MRO Manual for dealing with sample collection problems.  In fact, we are persuaded that the Union’s proposal would substitute a less rigorous process for evaluating medical data, and is less desirable than the procedure in the MRO Manual.  On the subject of the grievance procedure, as explained more fully in connection with the next issue, we agree with the Employer that it is more appropriate for the parties to negotiate the matter in the context of their initial CBA.[13]/ 

5.  Grievance Procedure

           a.     The Employer’s Position

    The Employer basically contends that the Union should withdraw its proposal for placing a comprehensive grievance procedure in the parties’ MOU on the DFWP.  The subject is more appropriately addressed during negotiations over the parties’ initial CBA, which may begin shortly.  In addition, that matter is covered by the parties’ ground rule memorandum on the eight-article interim agreement and, therefore, outside of the duty to bargain in this context.[14]/   

           b.     The Union’s Position  

    The Union proposes an 11-section grievance procedure that defines the meaning of a grievance, contains exclusions, lists consequences for failing to meet procedural requirements, requires a stay of pending or proposed personnel actions until a final decision is received, encourages settlement at the earliest possible point, provides a three-step procedure with opportunity for extending time frames and a separate institutional grievance procedure, permits alternatives to arbitration, and allows the filing of grievances addressing disciplinary actions or questions of correct wages “at whatever Step resolution is possible.” 

    Since a grievance procedure has yet to be negotiated, placing it in the DFWP MOU will ensure that any adversely affected employees would have recourse to grieve matters arising from implementation of the Employer’s policy.  If no such procedure were in place, an employee’s appeal rights would be severely limited.

 CONCLUSION 

    Having fully reviewed the record developed by the parties on this issue, we shall adopt the Employer’s position and order the Union to withdraw its proposal.[15]/  As stated in connection with the previous issue, the appropriate time for the parties to address the grievance procedure, a matter whose scope goes well beyond the subjects involved in their DFWP negotiations, is during negotiations over their initial CBA.  In addition, resolving an issue of such overall importance outside the context of initial CBA negotiations could have an adverse impact on the conduct of those negotiations, and undercut the parties’ incentive to complete them expeditiously.

ORDER 

    Pursuant to the authority vested in it by the Federal Service Labor‑Management Relations 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 5 C.F.R. ' 2471.11(a) of its regulations, hereby orders the following: 

1.  Reasonable Suspicion Drug Testing - Grounds   

    The parties shall adopt the Employer’s proposal. 

2.  Additional Types of Drug Testing – Accident

    The parties shall adopt the Employer’s proposal. 

3.  Test Procedures – Annotation on Chain-of-Custody Form            

    The Union shall withdraw its proposal. 

4.  Urine Test Problems

    The Union shall withdraw its proposal.

5.  Grievance Procedure

The Union shall withdraw its proposal.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

July 6, 2004
Washington, D.C.

 


[1]/ CSOSA is establishing its DFWP pursuant to Executive Order 12564 (E.O.) issued on September 15, 1986, during the Reagan Administration.  Subsequently, Congress passed legislation to ensure uniformity among Federal agencies’ drug testing programs (5 U.S.C. § 7301 (1987)).  The Department of Health and Human Services (DHHS), which is charged with certifying agencies’ DFWPs, also issued Mandatory Guidelines for Federal Workplace Drug Testing Programs (Guidelines); they have been revised several times.  The most recent revision is dated September 1, 1994.  A Model Plan for a Comprehensive Drug Free Workplace Program, developed by a Federal Interagency Coordinating Group, was first published in 1989.   

[2]/ Previously, the District of Columbia government operated CSOSA’s predecessor entity.  The other part of the Agency is Pre-Trial Services, which has its own director and budget.  

[3]/ For the interim agreement, a ground rules memorandum signed on December 4, 2002, permitted each party to select four subjects for bargaining.  The Union elected to bargain first over a grievance procedure.  Other topics on the parties’ respective lists included recognition, employee lists and information, safety and security, reassignments, official time, details, and a Labor-Management Committee.  Although the parties bargained over grievance procedures and reassignments, they reached no agreements, and appear to have abandoned that effort. 

[4]/ National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989); Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989).

[5]/ The Secretary of DHHS certified CSOSA’s DFWP, including its provisions that CSO positions would be subject to random drug testing under the Interagency Coordinating Group’s “guidelines for Preferred Testing Designated Positions.”  In the November 27, 2000, DFWP for CSOSA, the Director identifies Community Supervision Officers and Assistants, among others, as occupying testing designated positions (TDP).  Part I., Introduction, under Policy, states “[a]s a law enforcement organization, the Agency has a special responsibility to eliminate illegal drug use from its workplace.”  It explains: 

Whenever an offender who should have been removed from the community through effective supervision is not removed due to a lapse in judgment, the result can be devastating to innocent citizens.

Part X of the Plan, “Determining Testing Designated Positions,” in relevant part, states:  “Moreover, the Director has determined that all positions, which have been or will be designated as testing designated positions, under this Plan, are ‘sensitive positions.’”

 [6]/In American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 428 (1991) (Justice Management Division), the FLRA concluded that a union proposal which restricted the grounds for random and reasonable suspicion drug testing:

[I]n connection with employees encumbering safety or security sensitive positions, [] is nonnegotiable because it excessively interferes with the Agency's right to determine its internal security practices [emphasis added].

[7]/ See, 18 U.S.C. § 4206, Parole determination criteria.

 

[8]/ In Yeutter, to determine whether reasonable suspicion drug testing would be permissible based on indications of off-duty drug use, the court applied the test from Skinner v. Railway Labor Executives Association, 109 S.Ct. 1402, 1414 (1989) (quoting Delaware v. Prouse, 99 S.Ct. 1391, 1396 (1979)) where:

The permissibility of a government search is determined “’by balancing its intrusion on the individual’s Fourth Amendment interests against it promotion of legitimate government interests.’”

 

The court in Yeutter held that: 

The USDA Program is unconstitutional insofar as it authorizes mandatory drug testing of FNS [Food and Nutrition Service] workers who do not hold safety- or security-sensitive jobs, absent reasonable suspicion of on-duty drug use or drug-impaired work performance.

[9]/ The Union also cites American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 428 (1991) (Justice Management Division), where, in analyzing a union proposal which restricted the grounds for random and reasonable suspicion drug testing, the FLRA stated:

Insofar as [the proposal] applies to reasonable suspicion testing of employees who do not occupy safety or security sensitive positions, it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

 

[10]/In view of our decision on the merits of this issue, it is unnecessary to address the Employer’s jurisdictional contentions.

[11]/The Handbook states: “Shy Bladder usually refers to an individual who is unable to provide a specimen either upon demand or when someone is nearby during attempted urination.”  Chapter 7 of the Handbook permits the collector to give the donor/employee “a reasonable amount of fluid to drink” and “up to 3 hours” to produce a specimen.  Under Chapter 6, Section B, of the MRO Manual, such problems are to be evaluated

by a licensed physician (e.g., the MRO, a physician acceptable to the employer, the employer’s occupational health physician) to determine whether the donor’s inability to provide a specimen is genuine or constitutes a refusal to provide a specimen.

 

[12]/For support of this contention, the Employer cites the FLRA’s decision enunciating its “covered by” test:  U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, National Council of Social Security Administration Field Office Locals, Council 220, 47 FLRA 1004 (1993) (Social Security Administration, Baltimore).

[13]/Since we are adopting the Employer’s position on the merits of this issue, it is unnecessary to address the Employer’s jurisdictional contentions regarding the grievance procedure.

[14]/Once again, the Employer cites the FLRA’s decision in Social Security Administration, Baltimore in support of its position.

[15]/In light of our decision on the merits of the issue, it is unnecessary to