United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF THE NAVY NAVAL WEAPONS STATION CONCORD, CALIFORNIA
and LOCAL 1931, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 93 FSIP 176

DECISION AND ORDER

    Local 1931, American Federation of Government Employees, AFL-CIO (Union) 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 the Department of the Navy, Naval Weapons Station, Concord, California (Employer).

    After investigation of the request for assistance, the Panel directed the parties to participate in an informal conference with Staff Associate Gladys M. Hernandez for the purpose of resolving their dispute over the Employer's Drug-Free Workplace Program (DFWP). The parties were advised that if no settlement were reached, Ms. Hernandez would report to the Panel on the status of the dispute, including the parties' final offers and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Ms. Hernandez met with the parties on March 17 and 18, 1994, in Walnut Creek, California. With her assistance, the parties resolved 39 of the 41 outstanding issues. She has reported to the Panel on the two remaining issues based on the record developed by the parties. The Panel has now considered the entire record.

BACKGROUND

    The Employer's mission is to supply weapons, ammunition, bombs, and ordnance to naval vessels in the Western Pacific Theater as well as to store and maintain ammunition and explosives. The Union represents approximately 800 General Schedule and Wage Grade employees in a variety of clerical, technical, administrative, and skilled and unskilled trades positions. The parties' collective-bargaining agreement (CBA) was originally implemented on June 4, 1987. It has been extended by mutual agreement, and remains in effect until a successor is implemented.

    The dispute arose during negotiations over the Employer's proposal to implement the Department of the Navy's DFWP, Office of Civilian Personnel Management Instruction (OCPMINST) 12792.3A, dated 10 September 1993. Under the DFWP, all bargaining-unit employees would be subject to post-accident, reasonable suspicion, applicant and voluntary testing; only approximately 300 who (1) occupy testing-designated positions, (2) hold top secret security clearance, or (3) participate in the Personnel Reliability Program, would be subject to testing on a periodic random basis.

ISSUES AT IMPASSE

    The parties basically disagree over (1) whether employees should be permitted to obtain independent tests of new urine samples immediately after providing the Employer with official samples, and (2) the circumstances under which Union representatives should be excused from drug testing.

POSITIONS OF THE PARTIES

1. Independent Testing

    a. The Employer's Position

    The Employer's proposal reads as follows:

An employee may request a retest of the original sample following a verified positive drug test. The request will be made to the Drug Program Coordinator (DPC). The retest will be at the expense of the employee and will be performed at a DHHS certified lab, which may or may not be the lab that conducted the first test.

While its proposal would give employees the opportunity to request an additional test of the original samples, the decision to go forward with the retesting would remain with the Medical Review Officer (MRO). The proposal is practical, cost-effective, and consistent with applicable laws and regulations governing Federal drug-testing programs, particularly the Department of Health and Human Services (DHHS) Mandatory Guidelines for Federal Workplace Drug Testing Programs (Guidelines), 53 Fed. Reg. 11,970-89 (April 11, 1988), "from which no agency may deviate . . . without [the] written approval of the Secretary [of the] DHHS." Specifically, the retesting procedure does not run afoul of chain-of-custody requirements under the Guidelines and OCPMINST 12792.3A. Also, it becomes part of a DFWP which already provides fully effective "mandatory procedures" for processing samples to protect employees.⁽¹⁾ Finally, the proposal is the same as the provision in place under the Norfolk Naval Shipyard's DFWP.

    With regard to the Union's proposal, it has many "problems." It requires management to grant employees' requests for annual leave in direct interference with management's right to assign work under § 7106(a)(2)(B) of the Statute. It also does not guarantee that chain-of-custody requirements, testing procedures, and laboratory certification comply with the Guidelines. In this regard, it is "questionable" whether the MRO would "accept, let alone rely upon," results of samples not tested by a DHHS-certified laboratory. Moreover, because only the MRO can verify positive test results, and "the program [already] dictates the options available for a verified positive test result," providing supervisors with independent test results "would not necessarily facilitate the supervisors' personnel decision[s]." Finally, the Union's proposal "suggests" that employees' first line supervisors will be the only management officials making personnel decisions related to verified positive test results, which is "inconsistent" with the Statute as well as the Navy's DFWP. Because of these problems, the Union's proposal is "probably nonnegotiable."

    b. The Union's Position

    The Union proposes the following wording:

After providing a sample to the Agency, an employee will be allowed to take annual leave to be tested by a certified laboratory that is used by a law enforcement agency of the State of California, at his or her own expense if she or he so requests. The results of that test may be provided to the MRO for consideration, and to the employee's supervisor as supplemental evidence to facilitate the supervisor's personnel decision.

This proposal, as compared with the Employer's, provides employees with "security and protection against arbitrary and capricious action[s] or tampering." In this regard, there is a greater chance that original samples would be "inadvertently switched, lost, misidentified, or even tampered with," because of the long distance from the collection site in California to the testing laboratory on the East coast.⁽²⁾ There would be "no risk" that these things would happen to the independent samples "because [they] would be taken directly at the laboratory." The Employer's argument that it may not be able to release employees from work "lacks merit" because, since it controls the dates and times samples are collected, it is "reasonable" to conclude that it would schedule collections when workload permits. Finally, if there is a dispute over the first sample, the second would be available at no cost to the Employer.

CONCLUSIONS

    Having considered the evidence and arguments presented, we shall order the adoption of a compromise provision to resolve the dispute which essentially permits: (1) an employee to take annual leave, subject to the needs of the Employer, to obtain an independent test, at the employee's expense, from a DHHS-certified laboratory or one certified by a DHHS-recognized certification program in accordance with the Guidelines, and (2) the results of independent tests to be provided to the MRO, if they are the results of samples obtained and processed in accordance with the Guidelines, as well as to supervisors to facilitate their personnel decisions. In our view, such added protection is reasonable, notwithstanding the DHHS-required safeguards already in place under the Employer's DFWP, given the potential harm to an employee's reputation and livelihood from a positive test result. This added measure of protection also would be at no financial and minimal, if any, administrative cost to the Employer. The Employer's proposal, on the other hand, would do little to provide employees with additional protection because they are already free to ask the MRO to retest their original samples when they meet to discuss confirmed positive test results.

    We believe that our compromise wording disposes of the Employer's nonnegotiability concerns over the Union's proposal while retaining its intent. In this regard, it comports with the requirements of the Guidelines, specifically, sections 1.1(c) and 2.7(b),⁽³⁾ which maintains the integrity of the Employer's DFWP. Also, by subjecting the grant of annual leave for independent testing to the Employer's needs, it should assuage the Employer's concern that such testing would not permit it to meet workload requirements. Finally, with regard to submitting independent test results to supervisors, the compromise is consistent with the Guidelines because they are not being submitted to refute the results under the Employer's test but rather to facilitate their personnel decisions.⁽⁴⁾

2. Testing of Union Representatives

    a. The Employer's Position

    The Employer proposes that a Union official or steward representing an employee in a hearing before a third party, for example, an arbitrator, the Federal Labor Relations Authority (FLRA), the Equal Employment Opportunity Commission (EEOC), or the Merit Systems Protection Board (MSPB), "not be subject to random testing provided the test is to be given on the same date and time that the hearing is scheduled." While this proposal "could be viewed as nonnegotiable," the Employer offers it "in the spirit of partnership" as an "appropriate arrangement" which does not compromise public safety. In this regard, it recognizes that employees may be adversely affected if they cannot have their assigned representatives present during third-party hearings, the dates and times of which it has "little or no control" in setting.

    With regard to the Union's proposal, it is important to note that the Union president and first vice president are on 100- percent official time and, therefore, "engaged in representational matters at all times;" for other Union officials, including Union stewards, the majority of whom occupy testing-designated positions, Article 6, § 8, of the CBA, defines representational matters in "extremely broad terms." Given this, the first sentence of the Union's proposal is unacceptable because it would provide all Union representatives with "a waiver [from] drug testing," an interpretation which "the Union has never refuted." Thus, it is nonnegotiable because it excessively interferes with management's right to determine its internal security practices under § 7106(a). As for the second sentence, it concerns a matter already addressed by Article 6, § 9, of the CBA⁽⁵⁾ and the Statute. Moreover, together with the first sentence, it "lends further credence to management's concern that the Union is seeking personal protection from the provisions of the Navy's DFWP."

    b. The Union's Position

    The Union proposes that Union representatives "not be subject to drug testing while representing employees," and that they "be allowed to perform their representational functions freely without restraint, interference, penalty, or reprisal." This proposal is a "reasonable arrangement and procedure." It ensures that Union representatives will be able to meet their representational obligations under the law. Also, it would not prove burdensome to the Employer because it controls the scheduling of drug tests, and, therefore, may schedule Union representatives for such tests when they are not otherwise engaged in representing employees. The Employer's proposal is "insufficient" because it fails to include Union activities during the first three steps of the grievance process and "other important day-to-day representation[al] duties." In this regard, their exclusion "could result in cases being lost for being untimely filed or for other reasons if a Union representative was unable to represent an employee or was interrupted while engaged in the actual representation of an employee."

CONCLUSIONS

    Having evaluated the positions of the parties on this issue, we are persuaded that the matter should be resolved on the basis of a modified version of the Employer's final offer. Our modification shall provide for extensions of applicable time limits equal to the length of any delays caused by Employer interruptions of Union representatives when representing employees in other than third-party hearings to undergo post-accident, reasonable suspicion, or random testing. In our view, such wording strikes an appropriate balance between the parties' competing interests. In this regard, it responds to the Employer's concern that Union representatives be tested when necessary so as to ensure the safety of the public, while allowing them to represent employees in an effective, efficient, and timely manner. The Union's proposal, on the other hand, provides Union representatives with protection not extended to other employees simply by virtue of their positions with the Union. It could lead to an unwarranted situation where both an employee and his or her Union representative are selected for random drug testing, but only the employee would be required to go forward with the test. Finally, with regard to the Union's concern that the Employer may use the DFWP to harass Union representatives in the performance of their representational duties, Article 6, § 9, of the CBA, is already in place to protect Union representatives from such abuse.

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 pursuant to the Panel's regulations, 5 C.F.R. § 2471.6 (a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

1. Independent Testing

    The parties shall adopt the following provision:

After providing a sample to the Employer for official testing, upon request from the employee and subject to the needs of the Employer, an employee will be allowed to take annual leave to obtain an independent test from a DHHS-certified laboratory or one certified by a DHHS-recognized certification program in accordance with the Guidelines, at the employee's expense. The results of the independent test may be provided to (1) the MRO if they are the results of a sample obtained and processed in accordance with the Guidelines and (2) the employee's supervisor to facilitate his or her personnel decision.

2. Testing of Union Representatives

    The parties shall adopt the following provision:

A Union official or steward representing an employee during a third-party hearing (i.e., FLRA, EEOC, MSPB, arbitration) will not be subject to random testing provided the test is to be given on the same day and time that the hearing is scheduled. With regard to other representational functions, when the Employer interrupts a Union official or steward in the performance of such functions to undergo post-accident, reasonable suspicion, or random testing, any delays caused by the interruption will automatically extend applicable time limits equal to the length of the delay.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

April 28, 1994

Washington, D.C.

 

1.In this regard, all employee samples undergo an initial immunoassay screening test "to eliminate 'negative' [samples] from further consideration." Samples not "eliminate[d]" under the initial test undergo a "confirmatory" gas chromatography/mass spectrometry test, "the only authorized confirmation method for cocaine, marijuana, opiates, amphetamines, and phencyclidine, which are the drugs tested for." Positive test results are then "reviewed and interpret[ed]" by the MRO, "a licensed physician with knowledge of substance abuse disorder," so as to "assure" that they are "scientifically valid" and to determine whether there is a "legitimate medical explanation" for them. Reviews "may include" interviews with the employees, reviews of their medical history and "other relevant biomedical factors," and a second test of the original samples by a DHHS-certified laboratory.

2.The Navy has two DHHS-certified laboratories, one in Norfolk, Virginia, and another in Great Lakes, Illinois.

3.Section 1.1(c) provides that only laboratories certified under the certification standards established under the Guidelines are authorized to perform drug testing for Federal agencies. 53 Fed. Reg. 11,979. Section 2.7(b) provides that the MRO cannot "consider the results of urine samples that are not obtained or processed in accordance with the Guidelines." 53 Fed. Reg. 11,985.

4.Department of the Army, U.S. Army Aberdeen Proving Ground Installation Support Activity v. Federal Labor Relations Authority, 890 F.2d 467, 472 (D.C. Cir. 1989). See also, National Federation of Federal Employees, Local 2058 and U.S. Army Aberdeen Proving Ground Installation Support Activity, 35 FLRA 926, 928 (1990).

5.That contract provision reads as follows: 

There shall be no restraint, interference, coercion, discrimination, disciplinary, adverse or other unfavorable actions against a Union representative because of the performance of his official Union duties or his Union office.