[ v22 p513 ]
22:0513(54)NG
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.