A publication of the National Air Traffic Controllers Association
Issue link: http://natca.uberflip.com/i/1087616
NATCA NATIONAL OFFICE DEPARTMENTAL UPDATE Jan. 1-Feb. 23, 2019 LABOR RELATIONS DEPARTMENT NATCA PREVAILS IN SUBSTANCE TESTING CASE REGARDING UNION NOTIFICATION In an Award dated Jan. 24, 2019, Arbitrator James Rimmel sustained a NATCA grievance from the M98 facility involving notification to NATCA when substance testers arrive at a facility for testing. At certain facilities in the Great Lakes Region, the Agency had refused to notify NATCA when substance testers arrived to perform follow-up testing of one person pursuant to a management-referral Treatment and Rehabilitation Program (TRP). The Agency claimed that notification would violate the BUE's medical privacy rights in violation of the Privacy Act, 42 CFR Part 2, and the Rehabilitation Act. The Arbitrator rejected the Agency's arguments. Finding that the plain language of Article 73, Section 2 required notification to NATCA of substance testers' arrival at the facility in all cases, the Arbitrator credited NATCA's testimony that testers arrive to test only one person in several different scenarios, not all of which involve a TRP in the background. Only in the case of a BUE being on a TRP is there medical information that must be protected pursuant to the laws and regulations surrounding medical privacy, but upon notification of the testers' arrival at a facility, NATCA would not know either the identity of the BUE to be tested, or the type of testing to be conducted (e.g. negative dilute follow up versus management-referral follow up). He credited NATCA's legal argument that the Privacy Act, 42 CFR Part 2 and the Rehabilitation Act did not apply to a scenario where a FacRep might guess that an employee was on a TRP after being notified, or come to that conclusion based on information received from a source other than the Agency, after being notified. Therefore, he held that neither the Privacy Act, 42 CFR Part 2 nor the Rehabilitation Act prevented notification to NATCA. The Arbitrator ordered the Agency to comply with Article 73, Section 2 in all cases including follow-up testing pursuant to a management-referral TRP, by indicating that "testers are in the building" or "testers are in the building for one person." The Agency had until Feb. 28, 2019 to file exceptions to the Arbitrator's decision with the Federal Labor Relations Authority (FLRA). POCs: Assistant Director of Labor Relations Erina Hammond, Great Lakes Region RVP Drew MacQueen, Jeff Richards, Tony Walsh, M98 FacRep Jeff Huschka SEAD 3 MOU On Feb. 21, 2019, NATCA and the Agency signed a Memorandum of Understanding (MOU) concerning the Agency's implementation of Security Executive Agent Directive (SEAD) 3: Reporting Requirements for Personnel with Access to Classified Information or Who Hold a