NEGOTIATORS TO THE RESCUE?
One of the most important jobs of a union negotiator is to try to fix things when the General Counsel or other litigators fail. A new Federal Circuit decision that an employee lost gives negotiators yet another opportunity to rescue employees. FAA fired an employee because his urine sample showed evidence of cocaine usage. The employee insisted he had never used cocaine and demanded FAA test the remaining half of his sample at a different lab. The agency did and that lab also found evidence of cocaine use. Sounds bad for the employee, right?
Well, the employee tried to undermine that evidence with his own privately tested sample of urine, hair and blood which did not show any cocaine use. He also took a lie detector test that showed he was not lying, Faced with significant evidence on both sides of the question showing opposite results, there was only one thing to do. Someone had to test the original urine sample in the agency’s possession to confirm via a DNA analysis that it was the employee’s actual sample and uncontaminated by another sample. But when the employee asked that his urine sample be DNA tested, the agency refused. Where we come from, that would mean the agency loses its case. After all, under law the agency has the burden of proof and the employee’s tests seem to be just as good evidence of his innocence as the agency’s results are of his guilt. Ties go to employees.
But not in this case thanks to the Federal Circuit Court of Appeals and that is bad news for all employees.
The majority of the court held that “Due process does not require that the agency [make the employee’s] specimen available for DNA testing.” Ouch! It also noted that HHS regulations bar an agency from DNA testing a sample. Ouch again! Neither would be a particular problem if the court respected the idea that when there is equal evidence on both sides of the adverse action debate, the agency loses because it has the burden of proof by the preponderance of the evidence. Oddly, that does not seem to have been raised in the appeal.
Now that the litigation attorneys have failed to protect employees in this situation, it is up to negotiators. The first proposal to make is that when there is evidence contradicting the validity of the agency’s specimen test the employee is entitled to have the specimen DNA tested. If due process does not establish that right, union negotiators have to.
The agency might object citing the HHS regulations, but they only bar the “Agency” from testing from DNA testing the specimen. Nothing in law or regulations bars the employee having the test completed in a private lab acceptable to the agency.
The government loses nothing under this approach because as the Federal Circuit judge noted there have been many examples even in the Department of Defense of contaminated and/or inaccurate test results. In fact, if the DNA test does show contamination or that the specimen belongs to someone else, proving the employee’s innocence, the government gets to retain an already trained employee. Employee replacement costs can run into six figure costs for some agencies.
So, negotiators, “Saddle up.” It is time again to rescue unit employees from what the litigators failed to correct. This case is John Grimsrud v. Dept. of Transportation, No. 2017-1737 (Fed Cir. 2018)