33:0493(66)NG - - NFFE Local 1437 and Army Armament Research, Development and Engineering Center, Dover, NJ - - 1988 FLRAdec NG - - v33 p493
[ v33 p493 ]
The decision of the Authority follows:
33 FLRA No. 66
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. ARMY ARMAMENT RESEARCH, DEVELOPMENT
AND ENGINEERING CENTER
DOVER, NEW JERSEY
(31 FLRA 101)
DECISION AND ORDER ON NEGOTIABILITY ISSUE ON REMAND
October 28, 1988
Before Chairman Calhoun and Member McKee.
I. Statement of the Case
This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. U.S. Army Armament Research, Development and Engineering Center, Dover, New Jersey v. FLRA, No. 88-1289 (D.C. Cir. July 18, 1988). The court granted the motion of the U.S. Army Armament Research, Development and Engineering Center, Dover, New Jersey (the Agency) to remand the case to the Authority so that the Authority could further consider its decision in light of the final Mandatory Guidelines for Federal Workplace Drug Testing issued by the Department of Health and Human Services (HHS) on April 11, 1988 ("final Guidelines").
On February 16, 1988, the Authority issued its decision and order on negotiability issues in National Federation of Federal Employees, Local 1437 and U.S. Army Armament Research, Development and Engineering Center, Dover, New Jersey, 31 FLRA 101 (1988) (Dover). The collective bargaining proposals submitted by the National Federation of Federal Employees, Local 1437 (the Union) in Dover related to the Agency's testing of selected categories of civilian employees for drug abuse. The Authority found two proposals (Proposals 4 and 10) to be negotiable and four proposals to be nonnegotiable. The Agency accepts the Authority's negotiability determination as to Proposal 4 and, therefore, that proposal is no longer at issue. Agency's Letter to the Authority dated October 11, 1988. See also Agency's Supplemental Brief at 1.
On April 11, 1988, the final Guidelines were issued. On April 13, 1988, the Agency petitioned the court for review of the Authority's decision as to Proposal 10. On May 23, 1988, the Agency filed a motion with the court requesting remand of the case to the Authority. On July 18, 1988, the court granted the Agency's motion and remanded the case to the Authority to permit it to further consider its decision in Dover in light of the final Guidelines.
On September 9, 1988, the Authority requested the parties to submit supplemental briefs addressing the applicability of the final Guidelines to Proposal 10. Both parties submitted supplemental briefs.
Proposal 10 provides that after a positive initial urinalysis test, the urine sample is to be divided into two parts. One part of the sample is to be sent to a laboratory for confirmation of the positive test result and the other part is to be retained in freezer storage at the installation clinic. If the laboratory test confirms a positive result, the employee may have the retained portion of the urine sample tested at a laboratory of the employee's choice, at the employer's expense. For the reasons stated below, we find that Proposal 10 is moot.
II. Proposal 10
Upon a positive urinalysis test, each sample will be divided with half being sent to a remote laboratory and half being retained in freezer storage at the installation clinic. Upon a positive confirmation of the first sample, the employee shall have the option of having a test performed on the retained sample by either a certified laboratory utilized by the military for confirmatory testing or by a laboratory of the employee's choosing. The employer shall pay the cost of each retesting.
A. Positions of the Parties
The Agency contends that Proposal 10 is intended to be read together with Proposal 9, which the Authority found to be nonnegotiable in Dover, 31 FLRA at 111-12, and which specifically applies to field testing. According to the Agency, Proposal 10 concerns "on-site field testing followed by off-site confirmatory testing of positive specimens." Agency's Supplemental Brief at 7. The Agency states that because the final Guidelines prohibit on-site testing, it amended its drug testing procedure and no longer conducts field testing of civilians. Agency's Supplemental Brief at 7. The Agency argues that because Proposal 10 pertains to field testing, which is no longer being conducted by the Agency, the proposal is, therefore, moot. Agency's Supplemental Brief at 9.
The Agency also contends that Proposal 10 is inconsistent with provisions of the final Guidelines, which are Government-wide regulations. Agency's Supplemental Brief at 1. The Agency contends that because the final Guidelines preclude field testing and Proposal 10 specifically applies to a situation in which field testing is used, the proposal is inconsistent with the final Guidelines.
The Agency further argues that a split sample as provided for in Proposal 10 is inconsistent with the final Guidelines because HHS considered but expressly rejected a split sample procedure. 53 Fed. Reg. 11971. Additionally, the Agency argues that the final Guidelines require that the entire specimen be shipped to the certified laboratory for testing. Agency's Supplemental Brief at 5, 6.
The Agency contends that the final Guidelines provide that the Medical Review Officer may review only the results of the official urinalysis performed by a certified laboratory. Section 2.7(b), final Gu