National Federation of Federal Employees, Local 1384 and U.S. Department of the Air Force, 3245th Air Base Group, Hanscom Air Force Base, Massachusetts (Authority decision, June 12, 1991)

Final FLRA decision. The Authority dismisses the union's negotiability petition because its proposed reserve specimen procedure conflicts with federal drug testing guidelines. An aggrieved person may seek judicial review of this final order in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). A petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

NFFE Local 1384 proposed that Hanscom Air Force Base collect a reserve urine specimen during employee drug testing and test it after a positive result from the original specimen. The proposal allowed a reserve specimen as small as 10 milliliters and required its result to be reported to the medical review officer. The Authority found that federal guidelines required at least 60 milliliters in a specimen used for testing and barred that officer from considering results from a specimen that failed the guidelines. It rejected several other Air Force objections, including claims that split samples were categorically barred or that the procedure infringed management rights. Because the proposal still conflicted with the specimen rule, the Authority dismissed the petition.

Decision snapshot

• Authority: Negotiability under 5 U.S.C. § 7117(a)(1) and federal drug testing guidelines.
• Outcome: Proposal found nonnegotiable; union's petition dismissed.
• Key point: The guidelines' 60 milliliter minimum applies to the specimen from which a testing portion is taken.

Full text (FLRA public release)

[ v41 p195 ]

41:0195(17)NG

The decision of the Authority follows:

41 FLRA No. 17

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1384

(Union)

and

U.S. DEPARTMENT OF AIR FORCE

3245TH AIR BASE GROUP

HANSCOM AIR FORCE BASE, MASSACHUSETTS

(Agency)

0-NG-1865

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

June 12, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The case
concerns the negotiability of a single proposal addressing the
Agency's implementation of its drug testing program. The
Agency filed a statement of position and the Union filed a
response. For the following reasons, we find that the proposal
is nonnegotiable under section 7117(a) of the Statute because
it conflicts with a Government-wide regulation.

II. Proposal

SPLIT SAMPLES:

If an employee can provide at least 70 ml. of
urine, the MUTPM [Medical Urine Testing Program
Monitor] or escort will take the amount in
excess of 60 ml. and place it in a separate
container. Both the original sample (containing
60 ml.) and the reserved sample (containing at
least 10 ml.) will be processed for shipment to
the [A]gency's drug testing laboratory in
accordance with the HHS [Department of Health
and Human Services] Guidelines. Once the sample
arrives at the laboratory, the security and
analysis procedures contained in Section 2.4 of
the Guidelines will be followed. If
confirmatory testing of the original sample
yields a positive result, the reserve sample
will be tested. Test results from both the
official and reserved sample will be reported to
the MRO [Medical Review Officer] pursuant to
2.4(g) of the HHS Guidelines. All costs will be
borne by the Air Force.

A. Positions of the Parties

1. The Agency

The Agency asserts that the proposal is
nonnegotiable because, by requiring the Agency
to pay all costs of collection and testing of a
split sample, it necessitates an illegal
expenditure of Government funds. The Agency
points out that the Supplemental Appropriations
Act of 1987, codified at 5 U.S.C. § 7301,
precludes the expenditure of funds for drug
testing programs that do not comply with
scientific and technical guidance issued by the
Department of Health and Human Services (HHS
Guidelines). The Agency asserts that laboratory
testing of split samples is not authorized by
the HHS Guidelines. The Agency points out that,
in publishing its final guidelines, the
Department of Health and Human Services (DHHS)
specifically discussed and rejected the use of
split or second samples. The Agency argues that
"union proposals requiring the [G]overnment to
pay for drug tests--when that test is not
specifically prescribed in the HHS
Guidelines--are nonnegotiable." Statement of
Position at 6.

The Agency makes three additional arguments
that the proposal violates the HHS Guidelines.
First, the Agency asserts that the proposal
violates the Guidelines because it requires
testing of a sample as small as 10 ml.
According to the Agency, the HHS Guidelines
require that samples furnished must contain 60
ml. Second, the Agency contends that the
proposal's requirement that a reserved specimen
be tested under the same criteria as the
original specimen conflicts with the Guidelines.
The Agency states that, as a reserved sample
must be stored at cold temperatures, which cause
the deterioration or loss of some analytes in
the sample, the Guidelines require testing of a
reserved sample without regard to the
prescribed numerical cutoff levels used to
determine whether fresh specimens are negative
or positive. Third, the Agency asserts that the
proposal conflicts with the Guidelines because
it provides for a laboratory result to be
considered positive without a determination by
the MRO and provides for testing the reserved
sample without MRO participation.

Additionally, the Agency contends that the
proposal directly and excessively interferes
with management's right to contract out under
section 7106(a)(2)(A) by requiring the Agency to
contract with its designated laboratory to
perform a second test. In the Agency's view,
the additional procedures required by the
proposal "unavoidably change the terms of the
contractor-agency relationship." Id. at 9. The
Agency also asserts that the proposal's
requirements that additional specimens be packed
and shipped and that duplicate sets of records
be maintained directly and excessively interfere
with management's right to assign employees and
work.

2. The Union

The Union asserts that the Supplemental
Appropriations Act does not "bar negotiations
over testing procedures simply because those
procedures were not specifically prescribed by
the HHS Guidelines." Reply Brief at 4. The
Union also contends that the proposal does not
conflict with the MRO's assigned responsibility
for verifying positive test results from
laboratories because "no sample--whether
original or split--will be considered truly
positive unless first reported positive by the
lab and then verified as such by the MRO,
precisely as mandated by the Guidelines." Id.
at 6. In addition, the Union argues that the
proposal does not conflict with the MRO's
exclusive authority under the Guidelines to
order additional analysis and tests. The Union
argues that, under the proposal, the two
separate specimens would be tested only once
unless the MRO, in his or her discretion,
ordered reanalysis of the original sample.

The Union asserts that the proposal is a
negotiable procedure because it "simply builds
an additional procedural layer of protection
into a program that will otherwise go forward
exactly as planned by the Agency." Id. at 7.
The Union contends that the proposal does not
directly interfere with the management right to
contract out because it neither interferes with
the Agency's choice of a drug testing laboratory
nor changes the substantive terms of the
contract between the Agency and its contractor.
As for the Agency's allegation that the
proposal interferes with the rights to assign
work and employees, the Union asserts that the
affected collection site personnel will be
military. According to the Union, military
personnel comprise "a group that falls outside
the ambit of [the Statute] and for whom the
Agency can claim no statutory right to assign."
Id. at 9-10 (footnote omitted).

In the alternative, the Union argues that the
proposal is a negotiable appropriate
arrangement, under section 7106(b)(3) of the
Statute. The Union asserts that the proposal's
impact on the Agency's right to contract out is
"easily outweighed by the substantial
protections the proposal will offer to an
employee's livelihood and reputation." Id. at
11.

B. Analysis and Conclusions

1. The HHS Guidelines and the
   Supplemental Appropriations Act of
   1987

The HHS Guidelines constitute Government-wide
regulations, within the meaning of section
7117(a)(1) of the Statute. American Federation
of Government Employees, Department of Education
Council of AFGE Locals and U.S. Department of
Education, Washington, D.C., 38 FLRA 1068, 1111
(1990). Accordingly, if the proposal conflicts
with the HHS Guidelines, it is nonnegotiable.
Id.

The Agency argues that the proposal conflicts
with the HHS Guidelines in four separate
respects. We will address the Agency's
arguments seriatim.

First, we reject the Agency's argument that
the proposal conflicts with the HHS Guidelines
by requiring that the reserved sample be tested
in accordance with the same screening and
confirmation procedures, including numerical
cutoff levels, used to determine whether
original samples are negative or positive. The
Agency notes, in this regard, that section
2.4(i) of the Guidelines provides that, as some
analytes deteriorate or are lost during freezing
and storage, "quantitation for a retest is not
subject to a specific cutoff requirement but
must provide data sufficient to confirm the
presence of the drug or metabolite."

The proposal, however, requires that "the
security and analysis procedures contained in
Section 2.4 of the Guidelines will be followed."
As such, the proposal plainly encompasses the
section of the Guidelines cited by the Agency
and, in fact, requires that section to be
followed. Therefore, the proposal does not
require the reserved sample to be tested under
the same conditions, including cutoff levels, as
the original sample. Instead, the proposal
simply provides that applicable procedures and
analytical requirements of the Guidelines be
followed with respect to testing of the reserved
sample.

Second, the Agency contends that the proposal
is inconsistent with the HHS Guidelines because
it requires testing of the reserved sample based
on positive laboratory test results alone.
According to the Agency, "only the MRO can
declare a test positive after review of the
laboratory results and collection documentation,
and interview of the employee, and only the MRO
can order additional analysis and tests."
Statement of Position at 8.

The Agency's argument is misplaced. Under
the HHS Guidelines, the laboratory is
responsible, without MRO involvement, for
identifying and performing confirmatory tests on
positive specimens. See HHS Guidelines, section
2.4(e) and (f), 53 Fed. Reg. at 11983. Under
section 2.7(b) of the HHS Guidelines, the MRO's
role "is to review and interpret positive test
results obtained through the agency's testing
program." Id. at 11985. Therefore, contrary to
the Agency's position, a testing laboratory
initially determines whether test results are
positive. Id. at 11987 (section 3.5). As a
laboratory is authorized to identify a test as
positive, the proposed requirement that the
reserved sample be tested after a positive test
finding by the laboratory does not conflict with
the Guidelines. Further, the proposal does not
conflict with the MRO's exclusive authority to
order a reanalysis of the original sample. The
proposal requires testing of the split sample,
not reanalysis of the original sample.
Accordingly, the proposal does not conflict with
the MRO's responsibility to verify positive test
results.

Third, the Agency argues that the proposal
conflicts with the Guidelines, generally,
because the Guidelines do not encompass split
samples. The Agency has not identified any
provisions of the HHS Guidelines expressly
banning the collection and testing of split
samples, such as those required by the proposal,
provided the specimen meets the requirements of
the Guidelines. Instead, the Agency's argument
is based on a response to comments by DHHS at 53
Fed. Reg. 11971 (1988). Specifically, in
response to requests that the HHS Guidelines
mandate "a split sample technique in which a
second sample or portion of a sample could be
saved for further testing," DHHS stated that
such a technique had been considered but
rejected. Id. The DHHS noted that "these
Guidelines specifically reject allowing the
tested employee or anyone else from presenting
to the Medical Review Officer a split sample or
private sample that does not fully comply with
these Guidelines." Id. The DHHS stated that it
did not "project any real scientific, chain of
custody, or reliability benefits sufficient to
justify placing the added requirement of
collection and storage of split samples of [sic]
Federal agencies . . . ." Id.

It is clear that the DHHS rejected a
requirement that all agencies engaged in drug
testing provide split samples for testing. It
is also clear, however, that nothing in the
Guidelines expressly prohibits the use of split
samples. Moreover, DHHS, in its comments,
specifically rejected only "allowing the tested
employee or anyone else from presenting to the
Medical Review Officer a split sample or private
sample that does not fully comply with these
Guidelines." Id. (emphasis added.) Proposals
requiring split samples to be processed in
accordance with the Guidelines, therefore, were
not expressly prohibited by the DHHS. Indeed,
the proposal now before us expressly requires
both the original and the reserved sample to be
processed and shipped to the Agency's laboratory
"in accordance with the HHS Guidelines."
Accordingly, we reject the Agency's third
argument.

Fourth, the Agency argues that the proposal
conflicts with the Guidelines because it would
require testing of samples smaller than 60 ml.
It appears, in this regard, that the Agency's
argument encompasses two subarguments. First,
the Agency appears to argue that drug tests
cannot be performed on less than 60 ml. of
urine. That is, the Agency appears to argue
that the amount of urine actually tested must be
at least 60 ml. The Agency also appears to
argue that the specimen from which any testing
sample is taken must amount to at least 60 ml.

We disagree with the Agency's first argument.
In section 2.4(b)(2), the Guidelines state that
"[a]liquots . . . shall be used by laboratory
personnel for conducting initial and
confirmatory tests." "Aliquot" is defined in
section 1.2 of the HHS Guidelines as "[a]
portion of a specimen used for testing." The
Guidelines do not prescribe a minimum size for
an aliquot. There is, therefore, no basis on
which to conclude that the proposal conflicts
with the Guidelines by requiring drug tests to
be performed on aliquots smaller than 60 ml.

It is also clear, however, that consistent
with the Guidelines, aliquots must be taken from
a specimen containing at least 60 ml. of urine.
That is, although the Guidelines do not specify
a minimum size of an aliquot, the Guidelines
clearly specify a minimum specimen size from
which the aliquot is to be taken. In this
regard, section 2.2(f)(10) of the Guidelines
requires, as relevant here, that a specimen of
at least 60 ml. be collected. If an employee is
unable to provide a specimen of that quantity,
collection site personnel are specifically
instructed to obtain additional urine and,
following specified procedures, to combine the
original specimen with the additional one so as
to collect 60 ml. in one container. Other
portions of the Guidelines specify the
procedures by which specimens are to be handled
and transported to a laboratory and, in all
respects, appear to encompass only specimens
which meet the 60 ml. requirement. Finally, the
Guidelines specify, in section 2.7(b), that a
MRO "shall not . . . consider the results of
urine samples that are not obtained or processed
in accordance with these Guidelines."

The proposal, on the other hand, clearly
contemplates the handling, processing,
transporting, and testing of a specimen as small
as 10 ml. We reject, in this regard, the
Union's assertion that "there is nothing in the
Guidelines prohibiting the collection and
retention of a specific amount of urine in
excess of 60 ml. for use as a split sample."
Reply Brief at 5. The Guidelines refer to and
encompass urine specimens which, without
exception, appear to require 60 ml. of urine.
Indeed, in section 2.2(f)(10), the Guidelines
specifically refer to samples smaller than 60
ml. as "partial specimens" and require
collection site personnel to combine partial
specimens in a single container so as to satisfy
the 60 ml. requirement.

In addition, it is clear that the proposal
would require the MRO to consider the results of
the test performed on the split sample. We
agree with the Union, in this regard, that the
proposal does not specify that the split-sample
test is to be considered by the MRO.
Nevertheless, as acknowledged by the Union and
consistent with the plain wording of the
proposal, the test results of the split sample
would be "reported" to the MRO. The proposal
would be meaningless if the test results
reported to the MRO were not to be considered by
the MRO.

As noted previously, section 2.7(b) of the
Guidelines prohibits an MRO from considering
test results of "urine samples that are not
obtained or processed in accordance with [the]
Guidelines." Specimens smaller than 60 ml. may
not be obtained or processed in accordance with
the Guidelines and aliquots for testing may not
be taken from such specimens. As such, the
proposal would require the MRO to consider test
results in situations where the Guidelines
specifically prohibit such consideration. We
conclude, therefore, that insofar as the
proposal requires the MRO to consider test
results from aliquots taken from specimens
smaller than 60 ml., the proposal conflicts with
the Guidelines.

Except for the conflict with the 60 ml.
requirement, we have rejected the Agency's
arguments that the proposal conflicts with the
Guidelines. Moreover, in our view, the
proposal's conflict with the Guidelines is a
"technical" one which could be cured by the
Union in either of two ways. Accordingly, as
the proposal expressly requires adherence to the
Guidelines, if the proposal were modified so as
to eliminate the conflict with the 60 ml.
requirement, there would be no basis on which to
find the proposal inconsistent with the
Guidelines.

With regard to the latter point, we note the
decision of the U.S. Court of Appeals for the
District of Columbia Circuit in Department of
the Army, U.S. Army Aberdeen Proving Ground
Installation Support Activity v. FLRA, 890 F.2d
467 (D.C. Cir. 1989) (Aberdeen Proving Ground).
In that case, the court found that a proposal
requiring the agency to assure that drug tests
were not performed by unqualified or uncertified
operators or test personnel was nonnegotiable.
In so finding, the court noted comments by the
DHHS explaining why it elected not to include
specific qualifications for operators and other
test personnel and stated that, "[a]lthough
these remarks do not carry the same mandatory
authority as the Guidelines themselves, they
suggest that [the union's] qualifications
proposal is inconsistent with the spirit, if not
the letter, of the Guidelines." Id. at 474.

In addition, the court envisioned
"troublesome scenarios" flowing from the
proposal. The court noted, among other things,
that under the proposal "[t]he framework of
management responsibility for laboratory staff
that HHS laid out in its Response to Comments .
. . would be undermined to the extent that
laboratory management would, additionally, have
to hire only employees who meet the stricter
standards generated pursuant to the proposal."
Id. The court concluded that "[t]he proposal's
potential conflicts with the Guidelines provide
sufficient grounds for our holding that [the
union's] qualifications proposal is not
negotiable." Id.

If modified to conform to the 60 ml.
requirement, the proposal now before us would
not conflict with the Guidelines. The disputed
proposal would impose no standards in addition
to, or in conflict with, those prescribed by the
regulations.

Moreover, the proposal would not present the
"troublesome scenarios" envisioned by the court
in Aberdeen Proving Ground. Id. The proposal
only would require that an additional test, not
expressly barred by the regulations, be
conducted in accordance with the Guidelines, and
that the results be reported to the MRO.
Similarly, in accordance with the HHS
Guidelines, the MRO would continue to be
responsible for verifying that positive
laboratory tests indicate illegal drug usage.
The proposal would not in any way undermine the
framework established in the Guidelines for
collecting and testing specimens, or evaluating
the specimens and taking actions consistent with
such evaluation.

Second, it appears that the proposal could be
modified in a different respect so as to be
consistent with the Guidelines. We note, in
this regard, that, in addition to the proposal
discussed above, the court in Aberdeen Proving
Ground also considered, and found nonnegotiable,
a proposal enabling employees to "present new or
split sample results to a supervisor 'in an
attempt to refute the result' of the official
Army drug test." 890 F.2d at 472. It is clear,
at the outset, that the split sample encompassed
by the proposal in Aberdeen Proving Ground
differed from the one now before us because,
among other things, the split sample in Aberdeen
was to be maintained by the employee and tested
independently.

As relevant here, the court found the
proposal nonnegotiable because it allowed "a
nonmedical personnel supervisor to refute" an
MRO's determination that a drug test indicated
illegal drug use. Id. (emphasis in original).
In so holding, however, the court stated that
"enabling the employee to provide supplementary
evidence, such as new or split samples, to
facilitate the supervisor's personnel decision
might well be consistent with the Guidelines, .
. . ." Id. We agree. Accordingly, consistent
with the court's discussion of the MRO's
authority in Aberdeen Proving Ground, it would
appear that the proposal now before us also
would be consistent with the Guidelines if it
were modified so as to provide the results of
the split-sample test to the affected employee's
supervisor, for use in facilitating the
supervisor's personnel decisions, instead of to
the MRO.

Finally, we note the Agency's argument that
the proposal is nonnegotiable because it
requires the expenditure of funds for testing
split samples in violation of the Supplemental
Appropriations Act of 1987 (the Act). Section
503 of the Act precludes the expenditure of
appropriated funds, with certain exceptions not
applicable here, for implementing and
administering drug testing programs unless and
until the Secretary of Health and Human Services
meets certain obligations. Section
503(a)(1)(A)(iii) of the Act obligates the
Secretary to certify in writing to the
appropriations committees of the Congress that,
among other things, all agency drug testing
programs comply with the HHS Guidelines.

Under the Act, expenditure of funds would be
barred if the Secretary of Health and Human
Services did not certify that the Agency's
program complies with the HHS Guidelines. As
the proposal does not address the
responsibilities of the Secretary of HHS, it is
not clear that the portion of the Act relied on
by the Agency would apply so as to render the
proposal nonnegotiable. More importantly,
however, if the proposal were modified so as to
be consistent with the Guidelines, the Act would
not bar negotiation over the proposal even if
the Act applied in the manner argued by the
Agency.

As the proposal conflicts with the HHS
Guidelines, it is nonnegotiable under section
7117(a) of the Statute. Nevertheless, for the
reasons discussed above, we conclude that the
defect in the proposal may be cured by the
Union. Accordingly, consistent with efficient
administration of the Statute, and to provide
guidance to the parties, we will address the
Agency's remaining arguments.

2. The Right to Contract Out

The Agency asserts that the proposal requires
it to contract with its current laboratory for
the performance of the second test. This
requirement, the Agency asserts, directly
interferes with its right to contract out.
However, nothing in the plain wording of the
proposal addresses in any way which contractor
the Agency will use to perform any aspect of its
drug testing program. The Union states, in this
regard, that the proposal "does not at all
involve the Union with the Agency's selection of
a particular drug testing lab." Reply Brief at
8-9. As the Union's statement is consistent
with the plain wording of the proposal, we will
adopt it for the purposes of this decision.

Moreover, consistent with the plain wording
of the proposal, we find nothing in the Union's
acknowledgement that the Agency has already
entered into a contract with a laboratory which
would support an interpretation of the proposal
as requiring the Agency to use that laboratory
for the second test. Put simply, the Agency is
free to choose "the [A]gency's drug testing
laboratory" under the proposal. As such, the
Agency's reliance on International Organization
of Masters, Mates and Pilots, Panama Canal
Branch and Panama Canal Commission, 32 FLRA 269,
270-73 (1988), is misplaced. In that case, the
disputed proposal would have made "management's
choice of a laboratory to conduct the
confirmatory test contingent on employee
agreement to the use of that laboratory." Id.
at 272. In this case, the Agency is free,
without employee or Union involvement, to
designate a laboratory.

We reject also the Agency's contention that
the proposal directly interferes with its right
to contract out by requiring negotiations with a
contractor over the additional drug testing
procedures. According to the Agency, "[t]hese
additional procedures unavoidably change the
terms of the contractor-agency relationship."
Statement of Position at 9. The Agency does not
further explain how the proposal would
"unavoidably change" the relationship between
itself and its contractor or how such a change
would directly interfere with its right to
contract out. We find no basis, therefore, for
concluding that the proposal directly interferes
with the Agency's right to contract out.

We note, in this regard, that as drug testing
programs are, in part, performed by contractors,
implementation of many drug-testing proposals
would necessitate agency action involving
contractors. In our view, however, and
consistent with our discussion below, that
effect alone does not constitute direct
interference with an agency's rights under
section 7106 of the Statute.

3. The Rights to Assign Employees and
   Work

The proposal is similar to Provisions 5
through 7 in American Federation of Government
Employees, AFL-CIO, Local 3732 and U.S.
Department of Transportation, United States
Merchant Marine Academy, Kings Point, New York,
39 FLRA 187 (1991) (Merchant Marine Academy).
There, we determined that the hearing before an
ad hoc committee, required by the provisions,
concerned procedural steps to be followed by
management prior to exercising its right to
remove. Consequently, we found that the parts
of the provisions requiring the establishment of
such a committee constituted negotiable
procedures under section 7106(b)(2).

Similarly, the proposal here prescribes an
additional step to be taken before the Agency
decides whether an employee represents a
security risk because of illegal drug usage.
Other than requiring the test to be performed
and submitted to the MRO, the proposal imposes
no limitations on management's rights under
section 7106 of the Statute.

In Merchant Marine Academy, we observed that:

Section 7106(b) of the Statute provides that
"nothing" in section 7106 shall preclude
negotiation over "procedures which management
officials of the agency will observe in
exercising any authority" under section 7106.
Many procedures necessitate the assignment of
work to fulfill their requirements. To bar the
negotiation of procedures otherwise negotiable
under section 7106(b)(2) because they involve
the assignment of work to agency personnel would
nullify section 7106(b)(2) and overlook the
explicit purpose and intent of that section.

Id. at 213-14. Accordingly, we stated that
"procedures entailing some assignment of work to
employees do not necessarily directly interfere
with the [a]gency's right to assign work." Id.
at 214.

The proposal would require Agency collection
site personnel--if Agency employees are assigned
that task--to collect, package, and document
additional urine specimens. That is the sole
effect of the proposal on the Agency's rights to
assign employees and work, however. Stated
otherwise, Agency personnel would be required to
take action to implement the proposal. Based on
Merchant Marine Academy, we conclude that the
assignment to Agency personnel of this task does
not directly interfere with the Agency's rights
to assign employees and work.

III. Order

The petition for review is dismissed.

FOOTNOTES:

(If blank, the decision does not have footnotes.)