DEPARTMENT OF DEFENSE DEFENSE MAPPING AGENCY HYDROGRAPHIC/TOPOGRAPHIC CENTER LOUISVILLE, KENTUCKY and LOCAL 1482, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF DEFENSE
DEFENSE MAPPING AGENCY
LOCAL 1482, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
Case No. 90 FSIP 4
DECISION AND ORDER
On July 17, 1990, a factfinding hearing was held on one of three issues which remain at impasse between the parties in the above-referenced case concerning the Employer's proposed drug testing policy.(1)Thereafter, the factfinder submitted her report (which is attached), without recommendations, to the Panel on whether: (1) the collection of a second (or reserved) urine sample from employees randomly selected for drug tests should be automatic or at the request of the employees, and (2) the costs associated with the second sample should be borne by the employees, the Union, or the Employer. Local 1482, National Federation of Federal Employees, essentially had proposed that the collection of a second sample be automatic and that the costs associated with the second sample be borne by the Employer. We note for the record that subsequent to the issuance of the factfinder's report, the Employer submitted a document disagreeing in part with the factfinder's statement of the "Issue at Impasse" as set forth in the report. In this regard, the Employer asserts that its primary position is that the collection of second urine samples is unnecessary. Its proposal that the collection of such samples be at the request of employees, and associated costs be borne by the employees or the Union, "was intended to be a fall-back position only in the event that the Panel found that the use of [second] samples was appropriate in some form." In addition, the Employer continues to maintain that the Panel lacks the jurisdiction to decide the issue on its merits.
As stated in the factfinder's report, the Panel initially determined to resolve the issues presented in the parties' joint request for assistance through an informal meeting between the parties and a Panel representative. This Decision and Order addresses the issue which was the subject of the factfinding hearing, as well as the other two issues which remain in dispute in the case. In reaching its decision, the Panel has now considered the entire record, including the factfinder's report, and the recommendations of the Panel's representative for resolving the issues.
ISSUES AT IMPASSE
In addition to the issue involving second urine samples, the parties also disagree over Union and/or employee access to: (1) documentation supporting a decision to conduct "reasonable suspicion" tests of employees, and (2) information which would verify that employees have been randomly selected for testing.
1. Information Concerning Reasonable Suspicion Tests
a. The Union's Position
The Union proposes that the following wording be adopted:
If an employee is ordered to submit to a reasonable suspicion drug test, the employee will be entitled upon request to a copy of the written report that management is required to prepare under Section X(B) of the DMA Drug [Free] Workplace Plan, along with any other documents prepared by management to comply with the requirements of Section X(B). All witness statements relied upon by management to order a reasonable suspicion test will be included with the documentation described above. The names of any witnesses who provided statements will not be sanitized.
The Employer's allegation that the Panel lacks jurisdiction to decide this issue should be disregarded because the Union's proposal is fully negotiable. On the merits of the issue, the information which would be provided under the proposal is justified, given. the onerous nature of reasonable suspicion testing. In this regard, employees ordered to submit to such testing are entitled to know the names of their accusers.
Moreover, receipt of the requested information would enable the employee and the Union to investigate completely any incident upon which management based its decision to conduct such testing, thereby ensuring the accountability of the parties involved. -It also would protect employees from the kinds of "witch hunts" which have occurred at the activity in the Past.
b. The Employer's Position
The following wording is proposed by the Employer:
If an employee is ordered to submit to a reasonable suspicion drug test, the Union will be entitled upon request by the employee to a copy of the written report that management is required to prepare under Section X(B) of the DMA Drug [Free] Workplace Plan, along with other documents prepared by management to comply with the requirements of Section X(B). All witness statements relied upon by management to order a reasonable suspicion test will be included with the documentation described above. The witnesses' statements will be sanitized so that the witnesses may not be identified.
Preliminarily, the Employer contends that the Panel lacks jurisdiction to decide this issue, and should defer to the Federal Labor Relations Authority (FLRA) for resolution of the matter. In this regard, the Union's proposal "could jeopardize the investigatory process and substantively interfere with reasonable suspicion testing of employees." Accordingly, it is nonnegotiable because it directly and excessively interferes with management's right to determine its internal security practices, under section 7106(a)(1) of the Statute. Should the Panel continue to retain jurisdiction over the issue, however, its proposal would ensure that there is a reasonable basis on which to initiate reasonable suspicion testing without "inhibiting the intent and purpose of the reasonable suspicion testing program." In this regard the Agency regulation implementing its drug testing program "establishes more than adequate safeguards to guard against abuse of reasonable suspicion testing." The Union's proposal, on the other hand, would make known the names of individuals reporting suspicious behavior and "would subject those individuals to possible retaliation.
2. Information for Monitoring the Randomness of Selection
a. The Union's Position
The Union proposes the following wording:
The Employer will provide the Union a list of the names of all Louisville Office (LUO) bargaining-unit employees randomly tested under the DMA Drug Free Workplace Plan within 28 days after the test date. Should an employee get a deferral from a random drug test, the employee's name will be sanitized from the list. The number of nonunit employees who were randomly tested and their position titles will also be shown on the list.
There is no merit to the Employer's allegation that the Panel lacks jurisdiction to decide this issue because the Union's proposal is fully negotiable. Further, its proposal should be adopted because it would permit the Union effectively to monitor the randomness of the drug testing program to ensure that the employees being tested include nonbargaining-unit employees, as it should if the selection procedure truly is random. In this regard, disclosure of the position titles of Nonbargaining-unit employees tested would provide the Union with additional assurance that the Employer's data regarding the number of nonunit employees tested are accurate.
b. The Employer's Position
The following is the Employer's proposal:
The Employer will provide the Union a list of the names of all LUO bargaining-unit employees randomly tested under the DMA Drug Free Workplace Plan within 28 days after the test date. Should an employee get a deferral from a random drug test, the employee's name will be sanitized from the list. The number of nonunit employees who were randomly tested will also be shown on the list.
As with the Union's previous proposal involving reasonable suspicion testing, the Employer contends that the Panel lacks jurisdiction to decide this issue, and should defer to the FLRA for resolution of the matter. In this regard, the Union's proposal "does not concern matters affecting working conditions of bargaining-unit employees within the meaning of section 7103(a)(14) of the Statute" because it "extends to nonbargaining-unit employees." It cites the FLRA's decision in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) to support its position.(2) Should the Panel retain jurisdiction of the issue, however, the data to be provided under its proposal, in conjunction with other anonymous statistical data for bargaining-unit employees which the Employer already has agreed to provide, "will be sufficient for the Union to monitor the randomness of the testing process as between unit and nonunit employees.
We shall turn first to the jurisdictional argument raised by the Employer that the Panel "lacks "jurisdiction" to decide the negotiability issues it raises in connection with the Union's second urine sample proposal, and should, therefore, defer to the FLRA regarding those issues. In such circumstances, the Panel is guided by the FLRA's decision in Commander Carswell Air Force Base. Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell), where the FLRA determined that the Panel may apply existing case law to resolve an impasse where a duty-to-bargain issue arises. In this regard, the Panel's initial determination to assert jurisdiction over the parties' joint request for assistance in this case was based in part on the FLRA's decision in National Federation of Federal Employees, Washington D.C. and U.S. Army Aberdeen Proving Ground, Installation Support Activity, 33 FLRA 702 (1988). There the FLRA ruled negotiable a union proposal allowing an employee to retain a portion of a urine sample, provided in connection with the agency's drug testing program, for confirmatory testing in the event that the official sample yields a positive test result.
On appeal, the United States Court of Appeals for the District of Columbia Circuit remanded the decision to the FLRA, ruling that the union's proposal in that case was inconsistent with the Department of Health and Human Services (DHHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs. Department of the Army, U.S. Army Aberdeen Proving Ground, Installation Support Activity v. Federal Labor Relations Authority, 890 F.2d 467 (D.C. Cir. 1989) (Aberdeen). The court's decision was based upon an examination of the union's intent in requesting the additional data. The union stated that an employee could present the information to a supervisor to rebut the Medical Review Officer's (MRO) positive finding Accordingly, the court concluded that the proposal was inconsistent with the Guidelines because it would give the employee's supervisor the authority to disregard the findings of the MRO. Upon remand, the FLRA rescinded its order that the parties negotiate concerning the proposal, based on the rationale and conclusions of the court in Aberdeen. National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground. Installation Support Activity, 35 FLRA No. 97 (April 30, 1990). Significantly, the FLRA added that "in future cases involving proposals that are not materially different" from the proposal in Aberdeen "and that are intended to be applied in the same manner, we will also find them to be nonnegotiable."
Upon careful review of these legal developments, we are persuaded that the proposal in the instant case is full) consistent with the DHHS Guidelines, and that sufficient precedent exists under Carswell to support the Panel's determination to retain jurisdiction. We note that the instant proposal is materially different from the one in Aberdeen. Specifically, it is not intended to permit an employee to present the information to a supervisor to rebut the MRO's positive finding. Rather, should confirmatory testing of the official sample yield a positive result, the reserve sample would be tested, and test results from both samples would be reported to the MRO "pursuant to Section 2.4(g) of the DHHS Guidelines." Accordingly, we find that the Union's proposal is properly before the Panel.
Having carefully examined the evidence and arguments submitted by the parties at the factfinding hearing on the merits of the second sample issue, including the Employer's post-factfinding statement, we shall order the parties to withdraw their proposals. Preliminarily, the parties share the burden of developing a full and complete record on the basis of which this decision is made. In our view, there is no objective evidence in the circumstances of this case that providing a second urine sample at the collection site would add to the fairness of the Employer's drug-testing program so as a portion of the first sample is set aside for future use in case of a question of validity regarding a confirmed positive test, or provide greater assurance that an error would not occur. At most, the record reflects that a second sample would provide greater psychological comfort to employees force-d to participate in an involuntary program.
On balance, we do not believe that the additional costs to the Employer of implementing the Union's proposal are warranted, given the very limited psychological comfort it would provide. With regard to expense, it was estimated at the hearing that under the contractual agreements reached by the Employer, the cost of collecting, labeling, and storing a second sample would be $25 per employee tested. In addition, if the laboratory under contract to the Employer in this case concluded that the official sample contained illegal drugs, testing of the second sample, which would be automatically required under the Union's proposal, would cost approximately $30 to $35. Thus, the unrebutted testimony establishes that the cost of the Union's proposal to this Employer would be between $25 and $60 per employee tested.
Unrebutted testimony describing the collection procedures, labeling, and chain-of-custody documentation, as well as the procedures established by the laboratory under contract with the Employer for checking the documentation after the urine samples have arrived, convinces us that the potential for the wrong sample being tested is virtually nil. This is further supported by the quality control procedures used by the laboratory to prevent contamination of urine samples by another employee's urine or other contaminants. In this regard, we found particularly persuasive the testimony of the Assistant Technical Director of the drug-testing laboratory, who stated that over the last 3 years, of the 4,000 to 5,000 "blind samples" sent to the laboratory for quality control purposes by those agencies who are utilizing the laboratory's services, no false positives had been reported (Tr. 180, 181).
In addition, the 100-percent accuracy rate on blind samples was corroborated by the manager of the Department of the Interior's drug testing program with respect to the 300 blind samples that agency has submitted to this laboratory. Also, the testimony of the Employer's MR0 concerning her role in protecting the interests of employees compels us to reject the Union's proposal. The MR0, a medical doctor employed by the Public Health Service, described the part her office played in persuading DHHS to include in its drug-testing guidelines the requirement that test results be screened by an independent, medically-qualified individual, before being communicated to an employer (Tr. 204, 207). The function of the MRO is to determine whether a positive test result should be discounted because of the existence of excusing conditions, e.g., medications (Tr. 204, 207). The MR0 meets privately with the employee who has tested positive before the employer is given any information as to an employee's test results (Tr. 206, 207). She described her chief role as the protection of the individual employee from the adverse impact of a false positive test result, and explained that if there were any doubt whatsoever in her mind about the laboratory's finding, the test results would be discarded and reported as negative (Tr. 204, 216, 218). Moreover, it is her standard operating procedure to require retesting of all samples of employees which the laboratory has reported as testing positive, after consultation with the individual (Tr. 211). The official sample is large enough to supply urine for retesting (Tr. 162-63, 177). Hence, we are convinced that the procedure is very protective of employee rights.
Although human error is always possible, we are not persuaded that the potential for error would be reduced by using a second sample. In fact, by requiring a doubling of paperwork and handling, the potential for error might actually increase.
We also are unpersuaded by the recommendations contained in the "Consensus Report" (Un. Exh. 1) published after a conference of 300 drug testing specialists sponsored by the National Institute for Drug Abuse (NIDA) in December 1989, regarding the Federal drug testing program. The report recommends that DHHS amend its Guidelines to provide for separate urine samples at the collection site (Tr. 44). In this regard, we note that DHHS fully considered the use of second samples prior to the publication of its current guidelines, and concluded that such a procedure would not add materially to the protection of employees (Tr. 50, 218). There was no testimony at the hearing to persuade us that something beyond what is required by the current DHHS Guidelines is called for under the facts of this case. If DHHS should change its Guidelines to provide for second samples, however, any future negotiations between the Employer and the Union should of course take this development into account. Even if DHHS Guidelines are not changed, the parties may well agree, through the give and take of negotiations, that the extra psychological comfort of a second sample should be provided to employees. On the basis of the evidence presented here, however, we believe that such a decision should be left to the Parties.
Turning to the dispute over the issue involving reasonable suspicion drug testing of employees, the United States District Court for the District of Columbia recently held that the Employer's proposed reasonable suspicion drug testing program violates the Fourth Amendment of the U.S. Constitution. National Federation of Federal Employees. et al. v. Richard B. Cheney, et al., No. 89-1727 (D.D.C. July 17, 1990). By virtue of the court's decision, which effectively prohibits the Employer from implementing this portion of its drug-testing program, the dispute appears to have been rendered moot. Accordingly, we shall order the parties to withdraw their respective proposals on the issue.
Finally, concerning the parties' disagreement over the type of information the Union would receive to verify that the selection of employees is truly random, the Employer contends as a preliminary matter that the Union's proposal is outside its duty to bargain. Once again, we are guided in such circumstances by the FLRA's decision in Carswell. An examination of FLRA precedent indicates that the Statute imposes no limit on the information an employer may agree to furnish a union under a collective-bargaining agreement, provided that the information relates to working conditions within the bargaining unit and its disclosure is not prohibited by law. See, for example, Merit Systems Protection Board Professional Association and Merit Systems Protection Board. Washington. D.C., 30 FLRA 852 (1988) (MSPB).
We find no merit in the Employer's view that the Union's proposal is nonnegotiable because it "extends to nonbargaining-unit employees." This conclusion is in accordance with the FLRA's decision in MSPB, and its adoption of the "vitally affects" standard in OPM for determining questions involving the duty to bargain over proposals concerning conditions of employment of unit employees which also affect employees or positions outside the unit. In this regard, there can be no serious question that a proposal which is intended to verify that the selection of employees for drug testing is truly random by providing the Union with the position titles of the nonbargaining-unit employees tested, vitally affects the working conditions of unit employees. As the Employer does not contend, nor is it apparent, that the proposal is otherwise inconsistent with applicable law and regulations, we find that the Union's proposal