[ v33 p436 ]
33:0436(60)NG
The decision of the Authority follows:
33 FLRA No. 60
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 15
and
DEPARTMENT OF THE ARMY
U.S. ARMY ARMAMENT, MUNITIONS AND CHEMICAL COMMAND
ROCK ISLAND, ILLINOIS
0-NG-1269
(30 FLRA 1046)
DECISION AND ORDER ON NEGOTIABILITY ISSUES ON REMAND
October 27, 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. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988). The court granted the motion of the Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois (the Agency) to remand the case to the Authority to permit the Authority to 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 January 27, 1988, the Authority issued its decision and order on negotiability issues in National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046 (Rock Island). The collective bargaining proposals submitted by the National Federation of Federal Employees, Local 15 (the Union) in Rock Island related to the Agency's testing of selected categories of civilian employees for drug abuse. The Authority found three proposals (Proposals 3, 8, and 9) to be negotiable and nine proposals to be nonnegotiable.
On March 28, 1988, the Agency petitioned the court for review of the Authority's decision as to Proposals 3, 8, and 9. On April 11, 1988, the final Guidelines were issued. On May 10, 1988, the Agency filed a motion with the court requesting remand of the case to the Authority. On May 25, 1988, the court granted the Agency's motion and remanded the case to the Authority to permit it to further consider its decision in Rock Island in light of the final Guidelines.
On July 13, 1988, the Authority requested the parties to submit supplemental briefs addressing the applicability of the final Guidelines to Proposals 3, 8, and 9. Both parties submitted supplemental briefs.
Proposal 3 would require the Agency to provide safeguards to assure that urinalysis testing of employees is not performed by unqualified or uncertified laboratory operators or test personnel. For the reasons stated below, we find that Proposal 3 is not inconsistent with the final Guidelines and is, therefore, within the duty to bargain.
Proposal 8 would permit an employee to retain a portion of the urine sample for freezing and later use in case of a break in the chain of custody or a loss of identification of the sample. The petition for review as to Proposal 8 is dismissed because the Union failed to indicate how the proposal would operate under the final Guidelines, and because the proposal is subject to at least two interpretations which would yield opposite negotiability determinations.
Proposal 9 would permit an employee to have a urinalysis test done by an independent laboratory using a portion of the existing sample or a new sample. The proposal is intended to allow an employee who has been tested positive for drug use by the Agency to show the results of the independent testing to his or her supervisor in an attempt to rebut that finding. For the reasons discussed below, we find that Proposal 9 is not inconsistent with the final Guidelines and is within the duty to bargain.
II. The Final Guidelines are Government-wide Regulations
The final Guidelines were developed in accordance with Executive Order No. 12564, Drug-Free Federal Workplace, dated September 15, 1986 (the Executive Order), and section 503 of Pub. L. 100-71, the Supplemental Appropriations Act for fiscal year 1987, dated July 11, 1987, 101 Stat. 391, 468-71 (the Act). Section 4.(d) of the Executive Order states that "the Secretary of Health and Human Services is authorized to promulgate scientific and technical guidelines for drug testing programs, and agencies shall conduct their drug testing programs in accordance with these guidelines once promulgated." The Act required that notice of the proposed guidelines be published in the Federal Register, that interested persons be given not less than 60 days to submit written comments on the proposed guidelines, and that, after review and consideration of the written comments, the final Guidelines be published in the Federal Register. Section 503(a)(3) of the Act.
The final Guidelines published in the Federal Register of April 11, 1988, 53 Fed. Reg. 11979-89, are divided into three parts. Subpart A of the final Guidelines contains general provisions which cover: the applicability of the final Guidelines and exemptions to the final Guidelines; definitions of key terms used throughout the final Guidelines; and provision for accomplishing future revisions of the final Guidelines.
Subpart B of the final Guidelines, "Scientific and Technical Requirements," specifies the drugs for which Federal employees may be tested. Subpart B also establishes comprehensive standards for all aspects of laboratory drug testing and laboratory procedures to be applied in carrying out the Executive Order. These standards require, among other things, the use of the best available technology for ensuring the full reliability and accuracy of drug tests and strict procedures which govern the collection of the urine sample and the chain of custody of specimens collected for drug testing.
Subpart C of the final Guidelines, "Certification of Laboratories Engaged in Urine Drug Testing for Federal Agencies," establishes standards and procedures for the periodic review of laboratories performing the drug testing. Subpart C also provides criteria for the certification and the revocation of certification of laboratories performing drug testing under the Executive Order.
Section 7117(a) of the Statute provides that the duty to bargain does not extend to matters which are inconsistent with a Government-wide regulation. Therefore, if the final Guidelines constitute a Government-wide regulation within the meaning of section 7117(a)(1), they preclude negotiations on proposals that are inconsistent with the final Guidelines. By their terms, the final Guidelines are binding on Executive Agencies as defined in 5 U.S.C. § 105, the Uniformed Services, and any other employing unit or authority of the Federal Government except the U.S. Postal Service, the Postal Rate Commission, and employing units or authorities in the Judicial and Legislative Branches. Section 1.1(a), 53 Fed. Reg. 11979. The final Guidelines are, therefore, generally applicable throughout the Federal Government. Accordingly, we find that the final Guidelines are "Government-wide regulations" within the meaning of section 7117(a). See, for example, Overseas Education Association v. FLRA, 827 F.2d 814 (D.C. Cir. 1986); National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980).
We now turn to Proposals 3, 8, and 9 to determine whether, under section 7117(a)(1) of the Statute, they are inconsistent with the final Guidelines and are, therefore, nonnegotiable. See Overseas Education Association, 827 F.2d at 816 (section 7117(a)(1) "makes non-negotiable any proposal that would contravene" a Government-wide regulation). In determining whether the proposals conflict with the final Guidelines, we do not rule on the validity or the merits of the final Guidelines. See American Federation of Government Employees, AFL-CIO, National Council of Grain Inspection Locals v. FLRA, 794 F.2d 1013 (5th Cir. 1986).
III. Proposal 3
Section III.B - Testing Methods and Procedures
B. The Employer agrees that the following procedure will be utilized to assure drug testing is reliable:
1. Upon direction of management under terms of Section 2 above, affected employees will report to designated location to provide urine sample.
2. The Employer agrees to provide safeguards to assure the urinalysis testing for affected employees is not performed by unqualified or uncertified operators or test personnel.
[Only the underlined portion is in dispute.]
A. Positions of the Parties
The Agency notes that section 1.1(f) of the final Guidelines states that "[a]gencies may not deviate from the provisions of these Guidelines without the written approval of the Secretary [of Health and Human Services]." Agency's Supplemental Brief at 1-2. According to the Agency, this statement is clarified in HHS's response to comments, which states that "[a]bsent such a waiver, these Guidelines represent the exclusive standard for urinalysis testing and agencies may not deviate from these established procedures." 53 Fed. Reg. 11978.
The Agency argues that the Act "clearly contemplates that the qualifications and certification of the personnel conducting drug testing will be determined solely by HHS[.]" Agency's Supplemental Brief at 5 (emphasis in original). The Agency contends that Subparts B and C of the final Guidelines provide detailed requirements for the certification of laboratories and employees performing the urinalysis testing.
As an example, the Agency asserts that the final Guidelines specify the necessary qualifications for the laboratory manager, one of the "operators or test personnel" referenced in Proposal 3. See 53 Fed. Reg. 11982. The Agency contends that the final Guidelines' qualifications are the sole qualifications for this individual, and that the "open-ended . . . 'standard'" set forth in Proposal 3 is contrary to the standard set by the final Guidelines. Agency's Supplemental Brief at 7.
The Agency also argues that if this proposal is found to be negotiable, it could subject the question of the certification of laboratory staff to arbitration, contrary to the final Guidelines which are intended to be the sole standard for certification of laboratories and their staff.
The Union argues that Proposal 3 does not conflict with the final Guidelines. The Union states that the proposal concerns safeguards to guard against the use of unqualified operators or testing personnel. According to the Union, the proposal addresses the qualifications of the individuals performing the "hands-on laboratory work involved in urinalysis. The qualifications of these people are not addressed by the HHS Guidelines." Union's Supplemental Brief at 2. The Union notes that the final Guidelines address the qualifications of the person responsible for day-to-day management of the laboratory and of the Medical Review Officer, but do not contain any specific requirements for the technicians engaged in testing.
The Union contends that neither the final Guidelines nor HHS's response to comments concerns the technicians who are the subject of the proposal. The Union also contends that HHS's response to comments "does not constitute guidelines and should not be interpreted as a bar to negotiations." Id. at 3. Finally, the Union asserts that HHS's response to comments permits the laboratories themselves to set additional standards for employees engaged in the daily operation of drug testing. According to the Union, its proposal seeks to accomplish the same end "for the purpose of protecting employees from the danger of testing conducted by unqualified persons and . . . reducing employees' fears of inaccurate testing." Id.
B. Discussion
Proposal 3 requires the Agency to provide safeguards to assure that urinalysis testing is not performed by unqualified or uncertified operators or test personnel. The proposal does not specify what those safeguards should be. Proposal 3 initially was intended to apply to the staff performing field testing under the Agency's own drug testing program. However, the Agency no longer conducts a field testing program. Agency's Supplemental Brief at 9. Proposal 3 would now apply to the staff of the independent, certified laboratory performing the urinalysis testing under the final Guidelines. See section 1.1(b), final Guidelines, 53 Fed. Reg. 11979.
The final Guidelines "establish the exclusive standards for qualifying or certifying those laboratory personnel involved in urinalysis testing whose functions are prescribed by these Guidelines." Section 3.6, final Guidelines, 53 Fed. Reg. 11987 (emphasis added). The final Guidelines prescribe functions for only the following laboratory officials: (1) "a qualified individual to assume professional, organizational, educational, and administrative responsibility for the laboratory's urine drug testing facility" (section 2.3(a)(1) of the final Guidelines, 53 Fed. Reg. 11982); and (2) "an individual to be responsible for day-to-day operations and to supervise the technical analysts" (section 2.3(c) of the final Guidelines, 53 Fed. Reg. 11982). As explained by HHS in its response to comments:
The Final Guidelines set functional requirements for individuals engaged in the day-to-day management and operation of laboratories engaged in urine drug testing for Federal agencies. They do not specify requirements for other personnel, including employees who perform the assays, but rather depend on the ability of those responsible individuals to select and oversee properly qualified employees in each specific laboratory[.]
53 Fed. Reg. 11971 (emphasis added).
As noted, the final Guidelines set exclusive standards for qualifying or certifying only those laboratory personnel involved in urinalysis testing whose functions are prescribed by the final Guidelines. As is evident from the provisions of the final Guidelines discussed above, as well as HHS's response to comments, the final Guidelines prescribe functions for only two specific laboratory officials involved in urinalysis testing.
Proposal 3 is not intended to apply either to the individual having administrative responsibility for the laboratory or to the individual having responsibility for supervising the laboratory's technical analysts, but rather to the individuals performing the "hands-on laboratory work involved in urinalysis." Union's Supplemental Brief at 2. For purposes of this decision, we construe the proposal in this manner. The functions of the individuals to whom the proposal applies are not prescribed by the final Guidelines. The only reference in the final Guidelines to the type of individuals who would be performing "hands-on laboratory work" appears to be section 2.3(d), which states:
(d) Other Personnel. Other technicians or nontechnical staff shall have the necessary training and skills for the tasks assigned.
Section 2.3(d), final Guidelines, 53 Fed. Reg. 11982. This reference does not prescribe the functions of technicians and nontechnical staff, and nothing in the Union's proposal is inconsistent with this provision of the final Guidelines.
The final Guidelines could have prescribed functions for technicians and nontechnical staff. In its response to comments, HHS recognized that the final Guidelines did not do so and offered the following explanation:
The individuals who perform the tests are a vital part of any laboratory operation, and there is no intent to minimize their importance by omitting qualifications for them. However, by holding the appropriate laboratory officials responsible for review and certification of all test results before they are sent forward and by relying on various quality control and quality assurance measures, performance testing and on-site evaluations to provided direct measures of the quality of testing, the Department expects to ensure a standard of excellence in drug testing without setting additional personnel requirements. This reliance on the qualifications of individuals responsible for the day-to-day management and operation of urine drug testing laboratories does not prohibit the laboratories themselves from setting additional employees [sic] standards which may include specific credentials, certifications, licenses, registries, etc., for specific functions.
53 Fed. Reg. 11971.
Not only do the final Guidelines contemplate that technician and nontechnical employees should be qualified to perform the tasks they have been assigned, but also HHS's response to comments indicates that testing laboratories may set standards, including certification or licensing, for those employees. The regulations permit, rather than preclude, the use of additional standards for technician and nontechnical employees. Therefore, by requiring the Agency to provide safeguards to ensure that drug tests are performed by qualified and certified personnel, the proposal is not inconsistent with any provision of the final Guidelines.
We also reject the Agency's argument that the proposal should be found to be outside the duty to bargain because it could subject the question of the certification of laboratory staff to arbitration. The Agency offers as an example a Union grievance alleging that the laboratory director is unqualified to do the job in light of the proposed contract language. Agency's Supplemental Brief at 8. The example does not support the Agency's argument because the laboratory director's position is one of the two positions whose functions are specified in the final Guidelines. As discussed above, the proposal applies only to individuals whose qualifications are not established by the final Guidelines. The Agency has not shown that a grievance alleging that technicians and nontechnical staff are unqualified would conflict with law or Government-wide regulations. Accordingly, the Agency's argument provides no basis for finding the proposal to be inconsistent with the final Guidelines.
We conclude, therefore, that Proposal 3 is not inconsistent with the final Guidelines. Since it is not inconsistent with the final Guidelines, the proposal is not removed from the duty to bargain by section 7117(a) of the Statute. Consequently, no basis has been presented warranting a change in our decision that the proposal is within the duty to bargain.
IV. Proposals 8 and 9
Proposal 8
7. If employee urine sample leaves work site (RIA) [Radioimmunoassay], the employee shall have the option of retaining a portion of the sample for freezing and later use in case of inadvertent break in chain of custody or loss of identification of samples.
8. All samples will be subject to strict chain of custody as outlined in appendix H to AR 600-85.
Proposal 9
9. At each and every step of testing employees have the option to have a urinalysis test by an independent lab at his/her cost utilizing the existing sample or a new sample. If independent testing refutes employer results, employee will be reimbursed for any cost associated with testing process.
[Only the underlined portions are in dispute.]
A. The Agency's Position
The Agency contends that both Proposals 8 and 9 would require the use of "split samples" or "private samples." According to the Agency, procedures allowing the use of such samples were considered but rejected by HHS. The Agency, citing HHS's response to comments to the final Guidelines at 53 Fed. Reg. 11971, asserts that the final Guidelines do not permit the use of "split" or "private" samples in the drug testing process. The Agency also contends that although Proposal 9 would permit testing at an independent lab, the final Guidelines prohibit the Agency's Medical Review Officer from considering "the results of urine samples that are not obtained or processed in accordance with these Guidelines." Agency's Supplemental Brief at 9, quoting section 2.7(b) of the final Guidelines, 53 Fed. Reg. 11985.
The Agency notes that these proposals were developed before the final Guidelines were issued and at a time when the Agency was conducting on-site preliminary testing of samples (field testing). Under field testing, only positive specimens were forwarded from the worksite to one of the Agency's certified testing laboratories for confirmatory testing. The Agency states that it no longer uses field testing since the final Guidelines preclude the use of that method. Agency's Supplemental Brief at 9.
The Agency interprets Proposal 8 as addressing a situation where a specimen is screened on-site as positive and is then sent off-site for confirmatory testing. Agency's Supplemental Brief at 9. The Agency contends that since on-site initial screening of the urine sample is not conducted under the final Guidelines' procedures, application of Proposal 8 would allow all tested employees to demand a split sample since all samples are sent off-site for analysis. Quoting HHS's response to comments at 53 Fed. Reg. 11971, the Agency argues that "such a system could increase the risk of administrative error by doubling the labeling, initialing, storage, and accountability requirements." Agency's Supplemental Brief at 10.
The Agency argues that those portions of Proposal 8 which concern an inadvertent break in chain of custody or loss of identification of samples are addressed in sections 2.7(e) and 2.7(g) of the final Guidelines. Those sections provide, respectively, that: (1) "[s]hould any question arise as to the accuracy or validity of a positive test result, only the Medical Review Officer is authorized to order a reanalysis of the original sample and such retests are authorized only at laboratories certified under these Guidelines"; and (2) "based on review of inspection reports, quality control data, multiple samples, and other pertinent results, [the Medical Review Officer] may determine that the [test] result is scientifically insufficient for further action and declare the test specimen negative." 53 Fed. Reg. 11986.
The Agency contends that Proposal 9 would permit alternate preservation, chain of custody, and testing procedures separate and apart from those established by the HHS final Guidelines. According to the Agency, Proposals 8 and 9, read together, would require testing by an uncertified laboratory, or by a certified laboratory which did not receive the sample through the chain of custody required by the final Guidelines. The Agency also argues that Proposal 9 would "permit an arbitrator to judge the agency's actions in response to a confirmed positive agency test vis-a-vis the employee's negative independent test. Personnel actions must be based on testing done in accordance with the Guidelines, however. See E.O. 12564 § 5(f)." Agency's Supplemental Brief at 11 (emphasis in original).
The Agency further argues that instead of allowing the Medical Review Officer to screen and certify an independent test result, Proposal 9 presumes instead that a negative "independent" result will automatically negate a positive result from a test conducted by the Agency under the final Guidelines. According to the Agency, under Proposal 9 an arbitrator, not the Medical Review Officer, would resolve the credibility of the competing test results. The Agency asserts that such a procedure is prohibited under the final Guidelines because the final Guidelines require that the final determination of a positive result be made by the Medical Review Officer.
B. The Union's Position
The Union contends that Proposals 8 and 9, providing for use of split samples and independent testing of those samples, do not conflict with the final Guidelines because the final Guidelines do not address these matters. The Union argues that the Agency confuses the status of the final Guidelines with the status of the "statement of basis and purpose" which precedes the final Guidelines in the Federal Register. Union's Supplemental Brief at 4. According to the Union, although HHS "may have rejected the idea of split samples, as discussed in the statement of basis and purpose, the guidelines do not preclude the Army from adopting such a requirement." Id.
The Union contends that Proposal 9, providing for referral of the sample to an independent laboratory and payment by the employer if the testing refutes the employer's result, "is not at all inconsistent with the HHS Guidelines." Id. at 4-5. The Union states that the intent of Proposal 9 is to provide data which an employee may present to his or her supervisor, not to the Medical Review Officer. According to the Union, the Medical Review Officer does not determine whether to take disciplinary action against an employee, and the Medical Review Officer's conclusions are not binding on the Agency. The Union asserts that the retesting described by Proposal 9 might provide evidence such that reanalysis would be authorized as described by section 2.7(e) of the final Guidelines. In sum, the Union contends that Proposal 9 "would simply provide all employees with a method to obtain evidence to rebut a positive finding. . . . [T]his proposal will provide employees with unbiased evidence to present to their supervisors who might contemplate taking action against them." Union's Supplemental Brief at 5-6.
C. Discussion
We noted in our previous decision in Rock Island that we took "no position on whether field testing is permissible under the proposed Guidelines." Rock Island, 30 FLRA at 1068. We also noted, however, that if field testing was precluded by the final Guidelines, proposals which specifically concerned field testing would be moot because the circumstances which they addressed "would no longer be legally possible." Rock Island, 30 FLRA at 1069. We distinguished Proposals 8 and 9 from Proposals 4-7 on the ground that Proposals 8 and 9 dealt with the Agency's implementation of its drug testing program generally. The fact that the Agency no longer conducts field testing, therefore, does not render Proposals 8 and 9 moot. The question remains whether Proposals 8 and 9 are consistent with HHS's final Guidelines.
1. Proposal 8
Proposal 8 provides that if an employee's urine sample leaves the worksite for analysis, the employee may retain a portion of the sample for freezing and future use in case of an inadvertent break in the chain of custody or in case of loss of identification of the sample. Originally, the proposal was intended to apply to the Agency's field testing program, under which an initial screening of the urine sample was performed at the worksite. Under the field testing program, only those samples initially testing positive were transmitted to a laboratory for confirmatory testing. Under the final Guidelines, where all samples leave the worksite, the proposal potentially would permit the retention of a portion of each sample taken.
In our view, whether Proposal 8 is inconsistent with the final Guidelines turns on the resolution of two questions: (1) whether the final Guidelines preclude either the Agency or the employee, or both, from retaining a portion of the sample; and (2) if the final Guidelines permit retention of a portion of a sample, whether they preclude particular uses for the retained portion of the sample.
As to the first question, the final Guidelines require that a sample contain at least 60 milliliters of urine. Section 2.1(f)(10), final Guidelines, 53 Fed. Reg. 11981. The final Guidelines do not, however, prescribe what is to be done with any amount of urine which is in excess of 60 milliliters. As long as the Agency is able to obtain that minimum amount, nothing in the final Guidelines would prevent a portion of the sample in excess of that amount from being retained. For example, the final Guidelines contemplate that the sample may be transferred from the original collection container into a second bottle for transport to the laboratory. See section 2.2(f)(10) and (17), final Guidelines, 53 Fed. Reg. 11981. At this point, any amount of urine submitted in excess of the minimum required amount could be set aside for retention. Therefore, by permitting a portion of the sample in excess of the minimum to be retained, the proposal would not contravene any requirement in the final Guidelines.
Moreover, the final Guidelines themselves do not explicitly address whether an employee or an agency may retain a portion of the urine sample. We note that in the response to comments accompanying the final Guidelines, HHS states that it rejected a suggestion that agencies be required to maintain a portion of the sample. 53 Fed. Reg. 11971. However, the final Guidelines themselves do not contain such a requirement. In any event, even assuming that agency retention of a portion of the sample would be inconsistent with the final Guidelines, that inconsistency would not demonstrate that Proposal 8 is inconsistent with the final Guidelines. Proposal 8 is intended by the Union to permit employees to maintain custody of their retained samples. See Rock Island, 30 FLRA at 1071. Nothing in the final Guidelines or the HHS comments prohibits employees from retaining a portion of their own urine samples.
We next address the second question--whether the final Guidelines preclude particular uses for the retained portion of the sample. The terms of Proposal 8 do not specify the use to which the retained portion would be put. Proposal 8 could be interpreted to mean that the retained portion of the urine sample would be used as a substitute for the "official" sample. The wording of the proposal suggests that a purpose for saving a portion of the sample is to provide a "back-up" to the "official" sample. Under this interpretation, the Agency could be required to use the sample retained by the employee, at some later time, as a substitute for the "official" sample where the validity of the "official" sample is in doubt; that is, whenever the validity of the "official" sample is put in question because of a break in the chain of custody or a loss of identification of that sample. Interpreted in this manner, the proposal could be viewed as intended to protect employees against the use of an "official" sample whose integrity may have been compromised.
Under this interpretation, however, the proposal is inconsistent with the final Guidelines. The final Guidelines provide stringent procedures for collection of the "official" samples. Section 2.2, final Guidelines, 53 Fed. Reg. 11980-82. Security and chain of custody procedures for handling of the "official" samples by the certified laboratories are also specified in the final Guidelines. Section 2.4(a), final Guidelines, 53 Fed. Reg. 11982. The final Guidelines provide that only results of tests of urine samples that are obtained or processed in accordance with these final Guidelines shall be considered by the Medical Review Officer. Section 2.7(b), final Guidelines, 53 Fed. Reg. 11985.
Under the interpretation of Proposal 8 set forth above, the sample retained by the employee would be tested and the results would be reported to the Medical Review Officer. However, the retained sample would not have been subject to the same chain of custody as the "official" sample, nor would the retained sample necessarily have been stored or refrigerated in accordance with the requirements of the final Guidelines. See section 2.4(c), final Guidelines, 53 Fed. Reg. 11983.
Interpreted in this manner, Proposal 8 is inconsistent with the requirements of the final Guidelines for security and chain of custody of the sample used in the testing process. By requiring the Agency to use the results of tests performed on the retained sample as the "official" results of its testing program, the proposal would impermissibly require the Agency to accept results from a sample not subject to the stringent requirements of the final Guidelines. Contrary to the final Guidelines' provisions, the Medical Review Officer would be required to certify the results of a sample different from the "official" sample.
Therefore, under this interpretation, Proposal 8 is inconsistent with the final Guidelines and outside the duty to bargain because it allows for the use of the retained portion of the sample as a substitute for the "official" sample in case of chain of custody or identification problems.
On the other hand, Proposal 8 could be read as allowing the retained sample to be used, after independent testing, as evidence which an employee could present to his or her supervisor. The employee could use this independent evidence in an effort to show that a positive test result of the "official" sample was attributable to a break in the chain of custody or a loss in identification of the "official" sample. Union's Supplemental Brief at 3, 5. Evidence of different results from samples might suggest the possibility of a failure to safeguard the "official" sample at some point in the chain of custody or a misidentification of the "official" sample. The Union states that this kind of independent data might provide evidence to persuade the supervisor to approach the Medical Review Officer to request a reanalysis as provided for in section 2.7(e) of the final Guidelines. Union's Supplemental Brief at 5.
The Agency argues that this interpretation is inconsistent with the portion of the final Guidelines dealing with the functions and responsibilities of the Medical Review Officer. The final Guidelines provide that a Medical Review Officer, who is a licensed physician responsible for receiving laboratory results generated by the drug testing program, shall review the results before transmitting them to agency administrative officials. See section 1.2, final Guidelines, 53 Fed. Reg. 11980; section 2.7(a), final Guidelines, 53 Fed. Reg. 11985. The final Guidelines also provide that the "Medical Review Officer shall not, however, consider the results of urine samples that are not obtained or processed in accordance with these Guidelines." Section 2.7(b), final Guidelines, 53 Fed. Reg. 11985. HHS's response to comments states 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." 53 Fed. Reg. 11971.
We reject the Agency's contention that this interpretation of the proposal is inconsistent with the portions of the final Guidelines addressing the responsibilities of the Medical Review Officer. As so construed, the proposal does not concern the Medical Review Officer. The independent test results produced under this interpretation of Proposal 8 are to be supplied to an employee's supervisor as supplementary data, rather than to the Agency's Medical Review Officer for official consideration. The final Guidelines do not address whether an employee may present supplementary evidence to a supervisor in an attempt to refute the result of an official Agency drug test conducted under the final Guidelines. Therefore, there is no inconsistency between this interpretation of the proposal and the final Guidelines regarding the role of the Medical Review Officer and the official test results. Under this interpretation, Proposal 8 would be negotiable.
The two interpretations which we have outlined above are both plausible constructions of Proposal 8 and lead to differing conclusions as to the negotiability of the proposal. As we noted earlier, Proposal 8 does not specify the use to which the retained portion of the urine sample would be put. Because the record in this case is not sufficient for us to determine which of the two interpretations is intended by the Union, we are unable to determine whether Proposal 8 is within the duty to bargain. Therefore, the petition for review as to Proposal 8 is dismissed. It is well established that the parties bear the burden of creating a record upon which the Authority may make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (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). A party failing to meet this burden acts at its peril. For the above stated reasons, the petition for review as to Proposal 8 is dismissed.
2. Proposal 9
Proposal 9 would allow an employee, at his or her cost, to have an independent laboratory perform a urinalysis test using the existing sample or a new sample. If independent testing refuted the results of the Agency's test, the employee would be reimbursed for any cost associated with the testing process.
The "existing sample" referred to in Proposal 9 is not the official Agency sample; it is the portion retained by the employee. Union's Supplemental Brief at 3. Further, the Union specifically states that the "existing sample" referenced in Proposal 9 is to be used for the purpose of independent testing and that the test results would be given to an employee's supervisor, not to the Medical Review Officer. Id. at 5-6. Unlike Proposal 8, the Union specifically states the use it intends for the "existing sample" under Proposal 9 and that the intended use is not as a substitute for the "official sample." The Union's explanation of its intent with respect to Proposal 9, in light of the final Guidelines, is consistent with the terms of the proposal. Accordingly, we shall use this interpretation of Proposal 9 for purposes of our analysis.
The Agency argues that Proposal 9 is inconsistent with the portion of the final Guidelines dealing with the functions and responsibilities of the Medical Review Officer. As noted in our discussion of Proposal 8, the final Guidelines provide that a Medical Review Officer shall review the results before transmitting them to agency administrative officials. The final Guidelines also provide that the "Medical Review Officer shall not, however, consider the results of urine samples that are not obtained or processed in accordance with these Guidelines." Section 2.7(b), final Guidelines, 53 Fed. Reg. 11985.
As noted above, Proposal 9 does not concern the Medical Review Officer. The independent test results produced under Proposal 9 are to be supplied to an employee's supervisor as supplementary data, rather than to the Agency's Medical Review Officer for official consideration. As we discussed with respect to Proposal 8, the final Guidelines do not preclude an employee from presenting supplementary evidence to a supervisor in an attempt to refute the result of an official Agency drug test conducted under the final Guidelines. Therefore, there is no inconsistency between the proposal and the final Guidelines regarding the role of the Medical Review Officer and the official test results.
The Agency's other arguments are premised on its interpretation of the proposal as permitting the portion of the sample retained by the employee to serve as a substitute for the official Agency sample. As discussed above, we do not construe Proposal 9 in this manner. The portion of the sample to be retained by the employee is not intended to be used as a substitute for the official Agency sample. Under Proposal 9, the portion of the sample to be retained by the employee is specifically intended by the Union to be used only as supplementary information to be given to an employee's supervisor. Union's Supplemental Brief at 5. In this respect, Proposal 9 is distinguishable from Proposal 8, because the Union specifies its intent as to Proposal 9. We make no judgment on what weight, if any, is to be given to such supplementary information. Finally, the Agency makes no arguments with respect to that portion of Proposal 9 providing for reimbursement to employees of costs associated with the testing process if independent testing refutes the results of the official Agency test.
We find, therefore, that Proposal 9 is not inconsistent with the final Guidelines and is within the duty to bargain under section 7117(a)(1) of the Statute.
V. Order
The Agency shall upon request, or as otherwise agreed to by the parties, bargain on Proposals 3 and 9.(*) The petition for review as to Proposal 8 is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ In finding Proposals 3 and 9 to be negotiable, we make no judgment as to their merits.