[ v22 p513 ]
The decision of the Authority follows:
22 FLRA No. 54 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Union and KANSAS CITY DISTRICT, CORPS OF ENGINEERS, KANSAS CITY, MISSOURI Agency Case No. 0-NG-877 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case The petition for review in this case is before the Authority because of an appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It presents issues concerning the negotiability of two provisions of a negotiated agreement which were disapproved by the Agency head pursuant to section 7114(c) of the Statute. These provisions had been negotiated as a substitute for language which the parties had been ordered to adopt pursuant to a Decision and Order issued by the Federal Service Impasses Panel. Department of the Army, Kansas City District Corps of Engineers, Kansas City, Missouri and Local 29, National Federation Federal Employees, 82 FSIP 145 (1983). The provisions which were disapproved and are in dispute are as follows: Employees must be provided with the following notification when participating in the Occupational Health Program: (Provision 1) (1) Participation is strictly voluntary, (no official request to participate will be made); (2) Completion of any questionnaire or of any particular question is entirely optional on the part of each individual employee: (Provision 2) (3) The collecting, processing and final disposition of medical specimens and information will be safeguarded to insure that only the employee and the employee's physician are apprised of the results via professional medical channels, and that no individual employee medical findings resulting from such services will be made available to agency personnel, management or supervisory officials. (Only the underlined portions were disapproved and, hence, are in dispute.) II. Background The dispute in this case relates to medical examinations which agencies must make available to employees in health hazardous occupations under the Occupational Safety and Health Act of 1970 (the Act), Executive Order No. 12196 (1980) /1/ as amended by E.O. 1223 (1980) and Occupational Safety and Health Administration (OSHA) regulations. The Act essentially authorizes the Secretary of Labor to issue occupational safety and health standards which, among other things, prescribe the type and frequency of medical examinations which employers are to make available to employees occupationally exposed to health hazards. 29 U.S.C. Section 655. Those standards are set forth at 29 CFR Part 1910 (1985). Certain Agency employees are, in the course of their work, exposed to hazardous substances and must use respirators. These employees are subject to the medical surveillance or examination requirements set forth in the OSHA standards. Provision 1 is intended to prevent the Agency from requiring that employees participate in such medical examinations and provides that employee participation will be voluntary. Provision 2 seeks to prevent the Agency from having access to the results of those medical examinations. In resolving issues raised as to the negotiability of these provisions, the Authority sought an advisory opinion from the Department of Labor on its interpretation of OSHA regulations relevant to the parties' dispute. The Authority's decision here is consistent with that opinion which is attached to this decision as an Appendix. The parties were given an opportunity to present comments on the Department of Labor response; however neither did so. III. Positions of the Parties The Agency makes the same arguments regarding both provisions. Briefly, they are as follows: 1) The petition is moot; 2) the provisions conflict with Federal statute, specifically, the Act; 3) the provisions conflict with Government-wide rule or regulations, specifically, the OSHA Standards issued by the Secretary of Labor; and 4) the provisions conflict with agency regulations for which a compelling need exists, specifically, Department of Defense Instruction 6055.5 and Army Regulation 40-5. The Union contends that its petition is not moot. As to the provisions themselves, the Union contends that they are consistent with law and regulations. In response to the Agency's compelling need argument, the Union asserts that the regulations cited by the Agency do not meet the Authority compelling need criteria. IV. Analysis A. Question of Mootness The Agency contends that the Union's petition for review in this case is moot because the issues involved have also been raised in an unfair labor practice (ULP) charge. A decision has been issued in that case. U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA 456 (1984). The Authority finds that the issue addressed in that decision is different from the issue presented in this case. In the ULP case, the issue was limited to the availability of medical examinations to all employees except for those engaged in health hazardous occupations. In this case the parties have made clear that the dispute about the negotiability of these two provisions is limited to medical examinations provided to employees in health hazardous occupations. In view of the fact that Corps of Engineers, Kansas City did not address the issue presented in this case, the Agency's argument that the petition in this case is moot is rejected. B. Conflict with Government-wide Rule or Regulation The Agency contends that OSHA regulations require that employees participate in the medical examinations provided and that under the regulations the Agency is entitled to access to the results of the examinations. As the Agency has noted, the standards or regulations which OSHA has promulgated are voluminous. In making its determination as to this Agency contention, the Authority has relied on only those portions of the OSHA regulations which relate to those hazards and matters which the Agency has specifically cited as relevant to its circumstances; that is, exposure to lead and asbestos and use of respirators. If other portions of the OSHA regulations are relevant to the circumstances present in the Agency, it is the responsibility of the parties to bring them to the Authority's attention. National Federation of Federal Employees Local 1167 v. FLRA, 681 F.2d 886 at 891 (D.C. Cir. 1982), affirming National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). Where employees are exposed to specified levels of asbestos and lead in the course of their duties, all that is required by the OSHA regulations is that the Agency provide or make available at its cost medical examination to those employees. 29 CFR 1910.1001(j) (asbestos) and 29 CFR 1910.1025(j) (lead). In issuing the lead standard, /2/ OSHA specifically rejected making participation in the medical surveillance program mandatory for employees. /3/ OSHA cited, among other things, "substantial personal privacy and religious concerns involved in health care matters" as a consideration in rejecting mandatory employee participation in medical surveillance. 43 Fed. Reg. 52952, 52973-4 (1978). See United Steelworkers of America v. Marshall, 647 F.2d 1189, 1237-8 (D.C. Cir. 1980), cert. denied sub nom. Lead Industries Assn., Inc. v. Donovan, Secretary of Labor, 453 U.S. 913 (1981). The Authority, therefore, concludes that OSHA regulations involving exposure to lead and asbestos which require an employer (or agency) to provide or make available medical examination do not mandate that employees be compelled to participate in these examinations. See Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 485 n.45 (D.C. Cir. 1974) where the court, in addressing the legality of an OSHA asbestos standard, noted that employee participation in medical examinations is entirely voluntary. Moreover, neither do the OSHA regulations which govern respirator use mandate employee participation in medical examinations. The OSHA regulations which generally deal with respirator use do not specifically require employees to participate in medical examinations. 29 CFR 1910.134. The standards relating to exposure to specific hazardous substances also contain provisions regarding the use of respirators. The language in both the asbestos and lead standards which address respirator use reflects the overall approach in those standards that participation in medical surveillance programs is voluntary on the part of the employees. 29 CFR 1910.1001(d) and 1910.1025(f). See Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467, 485 (D.C. Cir. 1974) where the court noted that results of employee physical examinations were a consideration in assigning employees to jobs requiring the use of respirators but that the examinations were entirely voluntary insofar as employees were concerned. Based on the foregoing, the Agency's argument that Provision 1 conflicts with OSHA regulations cannot be sustained. As to Provision 2, a different conclusion is in order. In agreement with the Agency, the Authority finds that Provision 2 does conflict with the OSHA standards or regulations. Those regulations are set forth in 29 CFR Part 1910. /4/ They apply to Federal employees and agencies in general and, therefore, are Government-wide regulations. See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980). Those regulations generally require employers (or agencies in the case of the Federal government) to maintain records for employees subject to medical surveillance for a specified period of time. See, for example, 29 CFR 1910.1001(j)(6) and 29 CFR 1910.1025(n)(2). By denying the Agency access to medical records flowing from the medical surveillance program, Provision 2 would prevent the Agency from fulfilling its obligations under those regulations to maintain the required records. /5/ C. Conflict with Federal Statute By allowing employees to decline to undergo medical examinations, the Agency argues that Provision 1 would prevent it from fulfilling its obligation under the Act to keep adequate records or occupational accidents and illnesses. Consequently, it asserts that Provision 1 conflicts with the Act itself. No provision of the Act requires employees to undergo medical examinations. Moreover, as discussed earlier, the Secretary of Labor, who is responsible for setting the OSHA standards and for overseeing the administration of the Act in the Federal sector, has not construed the Act to require employees to participate in medical examinations. Therefore, the Agency's contention that Provision 1 conflicts with the Act is rejected. /6/ However, as to Provision 2, we have concluded above that preventing Agency access to the records of medical examinations effectively interferes with the Agency's ability to maintain records of its required medical surveillance program. These record keeping requirements flow from the Act itself as well as the regulations. 29 U.S.C. Section 668. Because of this, the Authority concludes that Provision 2 conflicts with 29 U.S.C. Section 668 -- a Federal statute. D. Conflict with an Agency Regulations for which a Compelling Need Exists As to Provision 1, the Agency asserts that the requirement in its Agency regulations for mandatory participation by employees in medical examinations is necessary to its achievement of a safe and healthful work environment. It concludes that this objective is essential to the accomplishment of its mission, and therefore its regulations meet the illustrative standard for determining compelling need set forth at section 2424.11(a) of the Authority's Rules. In the Authority's view, however, the Agency has not demonstrated that mandatory (as opposed to voluntary) employee participation in medical examinations is essential (as opposed to helpful or desirable) to the accomplishment of its responsibility to provide employees with a safe and healthful working environment. The Agency has not shown that voluntary participation by employees in medical examinations coupled with the implementation of the various other monitoring, control, and protective requirements set forth in the OSHA standards is not sufficient to allow it to fulfill its obligations with respect to assuring a safe and healthful work environment. See 29 CFR 1910.1001 and 1910.1025. Thus, the Agency has not shown that its regulations meet the "essential" standard set forth in section 2424.11(a) of the Authority's Rules and Regulations. See, for example, American Federation of Government Employees, AFL-CIO, Local 2875 and Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, southeast Fisheries Center, Miami Laboratory, Florida, 5 FLRA 441 (1981) (Union Proposal 4). With respect to the criterion found at section 2424.11(c), the Agency asserts that the DoD and Army regulations constitute a nondiscretionary implementation of a mandate of binding Government-wide regulations, that is, the OSHA regulations. However, the OSHA regulations do not require employees to participate in medical examinations. Therefore, the Agency's contention that Provision 1 conflicts with regulations which meet the compelling need standard set forth in section 2424.11(c) is rejected. The Agency makes the same arguments as to its need for its regulatory provisions which allow it access to the results of the medical examinations conducted on employees. Because the OSHA regulations and the Act do require Agency access, it follows that the Agency's regulations reflecting this requirements are essential to the accomplishment of its mission and function and also implement, in a nondiscretionary manner, a mandate to the Agency under law. Therefore, we conclude that Provision 2 conflicts with an agency regulation for which a compelling need exists. V. Conclusion The Authority finds that the petition is not moot. We further find that Provision 1 does not conflict with the Occupational Safety and Health Act, the Occupational Safety and Health Administration regulations, or an agency regulation for which a compelling need exists. It is within the duty to bargain. Provision 2 interfers with the Agency's obligation under the Occupational Safety and Health Act and the Occuprational Safety and Health Administration regulations to maintain specified records. It, therefore, conflicts with a Federal law and a Government-wide rule or regulation. Additionally, it conflicts with agency regulations for which a compelling need exists. It is not within the duty to bargain. VI. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency head shall rescind his disapproval of Provision 1 which was bargained on and agreed to by the parties at the local level. /7/ IT IS FURTHER ORDERED that the Union's petition for review insofar as it relates to Provision 2 be, and it hereby is, dismissed. Issued Washington, D.C., July 11, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Executive Order No. 12196, Occupational Safety and Health Programs for Federal Employees, implements many of the provisions of 29 U.S.C. Section 668, a portion of the Act which specifically applies to the Federal sector. As to how the provisions of the Act and the OSHA regulations apply to the Federal sector, see 29 U.S.C. Section 668, Executive Order No. 12196 and 29 CFR Part 1960 (1985). (2) 29 CFR 1910.1025. (3) The explanatory material accompanying the issurance of that standard states: Upon completion of initial air monitoring, the employer must begin the medical surveillance program for all covered employees. The standard does not make participation in the medical surveillance program mandatory for the employee. The employer's obligation is to "provide" and "make available" the medical tests and procedures as required. Where employee confidence in the medical program exists, refusal to participate should be minimal. (See discussion of mandatory medical examinations in the M(edical) R(emoval) P(rotection) Attachment.) 43 Fed. Reg. 52952, 52996 (1978). (4) Although 29 CFR 1960.17 permits adoption by agencies of alternate standards, this adoption is subject to the approval of the Secretary of Labor. There is no indication here that any alternate standards have been adopted. (5) In ruling on the validity of the OSHA standard for exposure to asbestos, the court in Industrial Union Department, AFL-CIO v. Hodgson, supra, has upheld the requirement in that standard that employers have access to the records of medical examinations conducted on employees. (6) We note that subsequent to the Agency head's disapproval of provision 1 in this case, the Office of Personnel Management amended the medical examination provision at 5 C.F.R. Chapter 1, Part 329, by promulgating 5 C.F.R. Chapter I, Part 339, Subpart B - Medical Examinations. Section 339.301(a) provides that: An agency may require an individual who has applied for or occupies a position which has physical/medical standards for selection or retention, or which is part of an established program of medical surveillance related to occupations or environmental exposure or demands, to report for a medical evaluation. Since these regulations were not in effect when the agreement in question was executed, nor when the provision at issue was disapproved, they could not be controlling in this case. We therefore expressly reserve judgment as to what, if any, relevance or impact these regulations may have in cases arising after they went into effect. (7) In reaching this conclusion, the Authority makes no judgment as to the merits of this provision.