U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Red River, Texarkana, Texas (Agency) and National Association of Government Employees, Local R14-52 (Union)
[ v56 p62 ]
56 FLRA No. 9
U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE DISTRIBUTION DEPOT, RED RIVER
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-52
February 29, 2000
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.
Decision by Chairman Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Norwood J. Ruiz filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions. The Agency also filed a supplemental submission. [n1]
The Arbitrator sustained the Union's grievance, finding that the Agency violated the parties' collective bargaining agreement ("agreement") when it designated new bargaining unit positions for random drug testing. For the reasons set forth below, we remand the case to the Arbitrator for clarification of the basis of the award.
II. Background and Arbitrator's Award
A. Facts Giving Rise To This Grievance
The dispute in this case concerns the Agency's decision to change the number of position titles designated for random drug testing as established by the Agency's "Drug-Free Workplace Plan" ("Plan"). [n2] The stated purpose of the Plan is to "set forth objectives, policies, procedures, and implementation guidelines to achieve a drug-free federal workplace . . . . " See Plan, set forth as Attachment No. 4 to the Agency's Exceptions. As relevant here, Section IX of the Plan, "Random Testing," states that "employees in sensitive positions that have been determined to be testing designated positions" ("TDPs") will be subject to random drug testing. See id. The list of TDPs identified by the Agency is set forth at Appendix A to the Plan.
On September 23, 1993, the parties negotiated the addition of Article XL, Sections 1 and 2, to the parties' agreement. Arbitration Award ("Award") at 2. This provision states as follows:
Civilian Drug Testing
Section 1. It is agreed that the Civilian Drug Testing Program will be administered in accordance with DLA Drug-Free Workplace Plan dated 3 January 1990.
Section 2. The Testing Designated Positions (TDP's) will be governed by applicable Federal Court decisions.
Award at 4.
On February 3, 1998, the Agency issued a "Memorandum for All Union Locals" ("the Memorandum") informing the Union that additional TDPs were being added to those originally included in the 1993 agreement. See Attachment No. 2 to the Agency's Exceptions. In part, the Memorandum stated that, "[t]o increase equity in drug testing coverage and to ensure [ v56 p63 ] conformance with recent court decisions and legal guidance, the DLA list of drug testing designated positions (TDP's) has been revised. The revised TDP list contains only `sensitive' positions where drug abuse could have a direct material, adverse affect on national security, law enforcement, protection of life and property, or public health and security." See id.
The Union filed a grievance on March 3, 1998. In pertinent part, the grievance alleged that the Agency violated Article XL, Section 2 of the agreement, and that the facts related to the grievance were that "[m]anagement added TDP's to the DLA Drugfree Work Place Program Plan. These Positions are not in accordance with Federal court rulings." See grievance, attached to the Union's Opposition. In terms of a remedy, the Union requested deletion of "additions of any kind[.]" See id.
B. Arbitrator's Award
The Arbitrator found that "the parties agreed there were two issues presented for the Arbitrator's decision[,]" and set forth these issues as follows:
First - Was the grievance of March 3, 1998 arbitrable? And if so,
Second - Did the [Agency] violate Article XL, Section 2 of the Collective Bargaining Agreement when the additional testing positions were designated as contained in [the Memorandum] and if so, what shall be the remedy?
Award at 3.
The Union argued before the Arbitrator that Article XL, Section 2 barred the Agency from adding additional TDPs to the Plan's list of employee positions subject to random drug testing. In this regard, the Union argued that the effect of Section 2 was to "lock in" the number of positions that could be tested by the Agency, and that the Agency could add new positions to the list only when a Federal court decision allowed the Agency to do so. Id. at 9. The Union also contended that "the grievance raises a contract interpretation issue and as such, is arbitrable." Id. at 2.
The Agency argued before the Arbitrator that the Union's interpretation of Article XL, Section 2 "would be unlawful as an abrogation of management's 7106(a)(1) rights[,] making [the provision] unenforceable and [the grievance] non-arbitrable." Id. at 11. With regard to the meaning of that provision, the agency asserted that, "[i]t was never the intent of the Agency that it be prevented from adding TDPs until a Federal Court decided, after the signing of the agreement, that the position could be tested." Id. at 13. Rather, the Agency argues that Article XL, Section 2 was "intended to operate" only when a Federal court decision showed that the Agency could not add a TDP. As a result, the Agency claimed that "the Agency did not violate the CBA when additional testing positions were designated[.]" Id. at 13, 14.
As a preliminary matter, the Arbitrator refused to hear the Agency's contention that the grievance was nonarbitrable because, as held by the Arbitrator, the Agency had failed to timely raise that issue.
With regard to the merits of the grievance, the Arbitrator noted that "the Agency concedes that even where a proposed provision might be deemed non-negotiable, it might be enforced if the parties negotiated an appropriate arrangement and it was included in the contract[.]" Id. at 16. The Arbitrator found that, when the Agency agreed to include Article XL, Section 2 in the agreement during the parties' negotiations in 1993, "[t]he Agency admits knowing of the Union's concern" that the Agency should not be given "an open-ended article that would allow the Agency the latitude to add to the list of persons subject to random testing at will." Id. at 17. Therefore, according to the Arbitrator, "both the Agency and the Union must have been satisfied that Section 2 constituted an `appropriate arrangement' at that time." Id.
Based upon the evidence, the Arbitrator determined that Article XL, Section 2 is an enforceable contract provision. In particular, the Arbitrator held that the Union's proposal for Article XL, Section 2 "was made with the express, acknowledged intent to `lock in' specific employees, that the Agency had included all of the positions it intended to include based upon existing case law at the time and that the only method of adding any positions to those set out at that time was to be through Federal Court decisions, through negotiations or by agreement." Id. at 17-18. Accordingly, the Arbitrator ruled that "the designation of the additional Testing Designated Positions on or about February 3, 1998 was in violation of Section 2, Article XL of the Collective Bargaining Agreement[.]" Id. at 18.
In terms of a remedy, the Arbitrator ordered the Agency to rescind the changes that it had made to the list of TDPs "on or about" February 3, 1998, and return to the TDPs as they were prior to that time. Id. In addition, "for the purpose of assessing the payment of the cost of arbitration," the Arbitrator declared the Agency the losing party. Id. The Arbitrator retained jurisdiction for 30 days "in the event the parties cannot agree to the payment of the attorney fees and expenses to be submitted by the Union or, upon joint motion of the parties, to resolve any other matter" stemming from the award. Id. [ v56 p64 ]
III. Positions of the Parties
A. Agency's Exceptions
First, the Agency claims that the award does not draw its essence from the agreement because the Arbitrator did not ascribe the proper meaning to "clear and unambiguous" contract language. Exceptions at 8. Specifically, the Agency claims that the meaning of Article XL is to "allow [the Agency] to add or delete positions so long as such actions are in accord with federal court decisions." Id. at 9. According to the Agency, "[i]t was never the intent of the Agency that it be prevented from adding TDPs [to the Plan] until a federal court decided . . . that the position could be tested." Id. at 16. The Agency further argues that it "may not seek an advisory opinion in federal court in order to obtain a decision that a position may be tested" because such a question "would not be a judicial resolution of a case or controversy under Article III of the U.S. Constitution." Exceptions at 13. In support, the Agency cites James B. Beam Distilling Co. v. Georgia, et.al., 501 U.S. 529, 546 (1991). Relying on Professional Airways Systems Specialists, District No. 1, MEBA/NMU (AFL-CIO) and U.S. Department of Transportation, Federal Aviation Administration, Office of Aviation Systems Standards, Battle Creek Flight Inspection Field Office, Battle Creek, Michigan, 48 FLRA 764 (1993), the Agency claims that, because the meaning of Article XL is not ambiguous, it was improper for the Arbitrator to use parol evidence to interpret the meaning of that provision. In the alternative, the Agency argues that, even if the meaning of Article XL is ambiguous, "[u]nder the law of contract construction" the provision "should be construed against the drafter, the Union." Exceptions at 8. The Agency claims that, because Article XL, Section 1, gives the Agency head the authority to add and delete TDPs, "[i]t is unreasonable that the intent of Section 2 would be that someone had [sic] to go back to court and relitigate whether a position could be tested." Id. at 9.
Second, the Agency claims that the award violates management's right to determine its internal security practices under 5 U.S.C. § 7106(a) of the Statute. Citing International Federation of Professional and Technical Engineers, Local 89 and U.S. Department of the Interior, Bureau of Reclamation, Grand Coulee Project Office, 48 FLRA 516 (1993), the Agency asserts that "it is well established that the implementation of a drug testing program constitutes an exercise of management's right to determine its internal security practices." Exceptions at 10. Relying on Department of the Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309 (1990) (Customs Service), the Agency asserts that Article XL, as interpreted by the Arbitrator, is not an enforceable contract provision. The Agency argues that Article XL is not an "appropriate arrangement" because it is not tailored to redress only those employees adversely affected by a management action. Exceptions at 11-13. Specifically, the Agency argues that there is no adverse effect because "[e]mployees must be adversely affected before the `arrangement' is operative[,]" while in this case no employees are adversely affected until after the Agency decides to test employees for drugs and one of those employees tests positive. Id. at 12. In support, the Agency cites United States Department of the Interior Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992). Because the effect of the award is to prevent the Agency from adding new TDPs to its list "unless a Federal case . . . holds that a position could be tested[,]" (Exceptions at 13), the Agency argues that the award "does not deal with the aftermath of the exercise of the management right but prevents adverse impact from occurring at all and would apply to all employees." Id. at 12. In the alternative, the Agency argues that even if Article XL is an arrangement, the award "abrogate[s] management's 5 U.S.C. § 7106(a)(1) rights." Id. at 13.
Third, the Agency asserts that the award is contrary to the Executive Order and the Back Pay Act. Specifically, the Agency argues that "the provision as interpreted would prevent the [Agency] from designating and therefore testing employees in sensitive positions consistent with the Executive Order." Id. at 15. In support, the Agency cites American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C.," 38 FLRA 1068 (1990) (Department of Education). With regard to the Back Pay Act, the Agency argues that "there is no basis for payment of attorney's fees" because no back pay was requested or awarded in this case. Exceptions at 14. In support, the Agency cites National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Fort Eustis, Virginia, 52 FLRA 1522 (1997).
Fourth, the Agency claims that the arbitrator exceeded his authority because the effect of the award "would be to prevent addition of positions which could extend to include employees not covered by the Collective Bargaining Agreement." Exceptions at 15. In addition, the Agency claims that the award requires someone outside of the bargaining unit who had been affected by random drug testing to challenge in federal court the legality of such testing. Id. at 13, 15. Relying on U.S. Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, Local [ v56 p65 ] 1917, 20 FLRA 391 (1985), the Agency concludes that "[t]he Arbitrator has exceeded his authority by requiring action by those outside the control of the Agency." Exceptions at 15.
B. Union's Opposition
First, the Union argues that the award does not fail to draw its essence from the agreement. The Union claims that the Agency's arguments in this regard "amount to a mere disagreement with the Arbitrator's finding on the issue of contract interpretation." Opposition at 6. In support, the Union cites United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990) (OSHA).
Second, the Union claims that "[t]he award does not violate 5 U.S.C. 7106[.]" Opposition at 14. The Union claims that the Agency's argument that the award violates section 7106 of the Statute is the same as the Agency's claim before the Arbitrator that the grievance was not arbitrable. Therefore, the Union argues that the Agency "should be barred from raising" this issue "when it did not timely raise the issue below." Id.
Third, the Union claims the award does not violate management's rights under section 7106(a)(1) of the Statute because Article XL is an enforceable arrangement. In this regard, the Union argues that "all of the agency's case citations on drug testing" are not on point because they all address the negotiability of contract proposals, rather than "whether such a provision [is] inherently unenforceable." Id. at 15. The Union states that the process of determining whether "a matter proposed for negotiation is not negotiable as being inconsistent with management rights under 7106(a)(1) is quite different from determining whether an arbitration award enforcing a negotiated contractual provision is deficient under section 7122(a) of the Statute." Id. at 16-17. In support, the Union cites U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, Defense Distribution Depot Red River, Texarkana, Texas and National Association of Government Employees, Local R14-52, 52 FLRA 132 (1996), and Customs Service, 37 FLRA at 315-16. The Union argues that the award does not abrogate management's rights because the Agency may still exercise its rights "within certain guidelines that it introduced at bargaining and then agreed in the negotiated agreement." Opposition at 18. The Union states that these guidelines include "a change in the case law to allow a change in the tested positions[,]" or the use of Article XLIII to add new TDPs. Id. [n3] The Union concludes that "the agency has failed to prove that the contract provision is unenforceable, or that it has abrogated management's rights by preventing the agency from acting at all." Id. at 18.
Fourth, the Union claims that the contract does not violate the Back Pay Act, 5 U.S.C. § 5596. The Union states that "[n]o . . . motion [for attorneys fees] has been filed or entertained so the agency's argument is at best premature." Id. at 19
Fifth, the Union claims that the Agency's argument that the award conflicts with the Executive Order "is essentially the same as its position on 5 U.S.C. 7106[,]" and therefore "the Union's response with regards to an appropriate arrangement is the same." Id. In addition, the Union alleges that the Agency is unable to identify what portion of the Executive Order is violated "since the order predates the agreements at issue and the agency's position at the time of the agreement was that all of the positions contemplated by the Executive Order were designated at that time." Id.
IV. Analysis and Conclusions
A. A Remand Is Required to Clarify Whether the Award Is Contrary to Law
1. Standard of Review
The Agency alleges that the award is contrary to law because "the provision as interpreted would prevent the [Agency] from designating and therefore testing employees in sensitive positions consistent with the Executive Order." Exceptions at 15. Executive Order 12,564 is a law within the meaning of section 7122(a) of the Statute. See, e.g., American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023 (1988) (Provision 36) ("Executive Order No. 12,564 was issued pursuant to the President's statutory authority to regulate the Civil Service and, therefore, is accorded the force and effect given to a law by Congress"). The Agency also alleges that the award is inconsistent with management's rights under section 7106(a) of the Statute. Accordingly, we will review the Agency's exceptions to determine [ v56 p66 ] whether the award is deficient under section 7122(a) of the Statute.
The Authority's role in reviewing arbitration awards depends on the nature of the exceptions raised by the appealing party. See U.S. Customs Service v. FLRA, 43 F.3d 682, 686 (D.C. Cir. 1994). In National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995), the Authority stated that if the arbitrator's decision is challenged on the ground that it is contrary to any law, rule, or regulation, the Authority will review the legal question de novo. In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
In addition, where an agency asserts that an arbitrator's award is inconsistent with management's rights, the Authority first determines whether the award affects management's rights. See United States Small Business Administration and American Federation of Government Employees, Local 2951, 55 FLRA 179, 184 (1999). If it does, then the Authority applies the two-prong test set forth in U.S. Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C. and National Treasury Employees Union, Chapter 201, 53 FLRA 146, 151-54 (1997) (BEP). If the award does not affect management's rights, then the BEP analysis is not required.
2. The Award is Susceptible to Different Interpretations
Based upon the evidence before him, the Arbitrator determined that the effect of Article XL was to "lock in," at the point in time that the parties agreed to that provision, the specific position titles that are subject to random drug testing as part of the Agency's Drug-Free Workplace Plan. As a result, the Arbitrator held that the "only method of adding any positions to those set out at that time was to be through Federal Court decisions, through negotiations or by agreement." Award at 17-18. The Arbitrator concluded that the Agency violated Article XL when it designated additional testing positions without complying with the requirements of that provision.
We are unable to determine whether the Arbitrator's enforcement of Article XL is consistent with law because his construction of Article XL is susceptible to different interpretations. Specifically, the meaning of the Arbitrator's use of the phrase, "through Federal Court decisions," is unclear. Under one interpretation, the Agency's decision to designate additional testing positions must be preceded by specific judicial approval. Absent such approval, the Agency head would be unable to test employees who do not already occupy positions designated by the Agency's Plan. As such, the award would limit the Agency head's ability to designate positions as "sensitive" under section 7(d) of Executive Order 12,564, thereby resulting in a class of Agency-designated sensitive positions that is more restricted than that provided for in the Executive Order. [n4] Therefore, the award would be deficient as contrary to law.
Under a second interpretation, the Agency's decision to designate additional testing positions must conform with general judicial precedent. Compliance with Fourth Amendment case law cannot be an unlawful constraint on the Agency head's discretion under the Executive Order. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989) (Federal Government drug testing programs must meet the reasonableness requirement of the Fourth Amendment). Under this second interpretation, the award would not violate the Executive Order because the Agency would remain free to designate additional positions as long as its decisions are consistent with applicable case law. Such a finding would not end the inquiry, however, because the Authority would then have to examine the Agency's claims that the award interferes with management's rights under section 7106(a)(1) of the Statute. This review would be made, at least in part, under BEP; U.S. Department of Defense, Defense Finance and Accounting Service, Indianapolis Center, Indianapolis, Indiana and American Federation of Government Employees, Local 1411, 48 FLRA 1124, 1128 (1993), citing Department of Education, 38 FLRA 1068; and Customs Service, 37 FLRA 309.
Based upon the foregoing analysis, we conclude that it is necessary to remand the award so that the Arbitrator can clarify what he meant when he used the words "through Federal Court decisions." [n5] Without such clarification, we are unable to determine whether the Arbitrator's enforcement of the agreement is consistent with law. [ v56 p67 ]
B. The Award Does Not Fail to Draw Its Essence From the Agreement
In reviewing an arbitrator's interpretation of a collective bargaining agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector. See 5 U.S.C. § 7122(a)(2); American Federation of Government Employees, Council 220 and Social Security Administration, Baltimore, Maryland, 54 FLRA 156, 159 (1998). Under this standard, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See OSHA, 34 FLRA at 575. The Authority and the courts defer to arbitrators in this context "because it is the arbitrator's construction of the agreement for which the parties have bargained." Id. at 576.
The Authority has held that an award will not be found to fail to draw its essence from an agreement merely because a party believes that the arbitrator misinterpreted the agreement. See id. at 576. The question of the interpretation of the parties' agreement is a question solely for the arbitrator because it is the arbitrator's construction of the agreement that the parties have bargained. See id. Here, the Arbitrator found that the effect of Article XL is to prevent the Agency from adding any TDPs to the list set forth by the Plan at the time the provision was negotiated, unless the Agency adds TDPs "through Federal Court decisions, through negotiations or by agreement." Award at 18. Upon review of Article XL, we find that, even considering the different interpretations of the quoted phrase, the award is not implausible, or irrational. Accordingly, we find that the Agency has not shown that the award fails to draw its essence from the agreement. We deny the exception.
C. The Arbitrator Did Not Exceed His Authority
Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority, or award relief to those not encompassed within the grievance. See American Federation of Government Employees, Local 1617 and U.S. Department of the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base, Texas, 51 FLRA 1645, 1647 (1996). In the absence of a stipulated issue, the arbitrator's formulation of the issue is accorded substantial deference. See U.S. Department of the Army Corps of Engineers, Memphis District, Memphis, Tennessee and National Federation of Federal Employees, Local 259, 52 FLRA 920, 924 (1997).
The Agency claims that the Arbitrator exceeded his authority because the award requires someone outside of the bargaining unit who had been affected by random drug testing to challenge in federal court the legality of such testing. Exceptions at 13, 15. The award does not address who will challenge Agency decisions. Therefore, the claim does not provide a basis for challenging the award under the standard set forth above.
The Agency also claims that the Arbitrator exceeded his authority because the effect of the award "would be to prevent addition of positions which could extend to include employees not covered by the Collective Bargaining Agreement." Id. at 15. Upon review of the award, we find that the award addresses the impact of the Agency's drug testing program only upon bargaining unit employees. First, the grievance alleged a failure to abide by a provision of the parties' collective bargaining agreement, which covers bargaining unit employees. Second, there is no mention or discussion of nonunit employees in the award. See, e.g., U.S. Department of Transportation, Federal Aviation Administration and National Air Traffic Controllers Association, 54 FLRA 853, 855 (1998) (Authority found that arbitrator did not exceed his authority when nothing in award demonstrated that nonunit employees were affected by the award). We find that the Agency's exception does not present reasons for finding that the Arbitrator awarded relief to those not encompassed within the grievance. Accordingly, we deny the exception. [ v56 p68 ]
D. The Award Does Not violate the Back Pay Act
The Agency argues that there is no basis for attorney fees under the Back Pay Act. The threshold requirement for entitlement to attorney fees under the Back Pay Act, 5 U.S.C. § 5596, is a finding that the grievant was affected by an unjustified or unwarranted personnel action, which resulted in the withdrawal or reduction of the grievant's pay, allowances, or differentials. See National Association of Government Employees, Local R4-6 and U.S. Department of the Army, Fort Eustis, Virginia, 54 FLRA 1594, 1597-98 (1998). Once such a finding is made, the Act further requires that an award of fees must be: (1) in conjunction with an award of backpay to the grievant on correction of the personnel action; (2) reasonable and related to the personnel action; and (3) in accordance with the standards established under 5 U.S.C. § 7701(g), which pertains to attorney fee awards by the Merit Systems Protection Board. See id.
Upon review of the award, we find that there is no merit to the Agency's exception that the award violates the Back Pay Act. Here, the Arbitrator retained jurisdiction for 30 days "in the event the parties cannot agree to the payment of the attorney fees . . . . " Award at 18. The Arbitrator did not order the Agency to pay attorney fees under the Back Pay Act. Accordingly, we deny the exception. [n6]
We remand the award to the parties for resubmission to the Arbitrator so that he may clarify what he meant by the phrase "through Federal Court decisions." The Agency's remaining exceptions are denied.
Footnote # 1 for 56 FLRA No. 9
The Agency's supplemental submission requests permission to supplement its Exceptions with the Index and the certification pages of the transcript from the arbitration hearing. The Agency argues that we should admit these documents because, as the Agency's Exceptions already include the body of the transcript, no new evidence is presented. In its Opposition, the Union asserts that the Agency's supplemental submission should be rejected because it was not filed with the Exceptions. Although the Authority's Regulations do not provide for the filing of supplemental submissions, the Authority may, pursuant to 5 C.F.R. § 2429.26, grant leave to file documents as the Authority deems appropriate. See, e.g., American Federation of Government Employees, Local 2004 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region East, New Cumberland, Pennsylvania, 55 FLRA 6, 9 (1998). Upon review, we find that, as the Union has had an opportunity to respond, the Agency's supplemental submission would not harm the Union. Accordingly, the Authority accepts the submission.
Footnote # 2 for 56 FLRA No. 9
The Plan was created in response to Executive Order 12,564 (the "Executive Order"). Dated September 15, 1986, the Executive Order directed federal agencies to develop plans to achieve a drug-free workplace. Each federal agency was mandated to establish criteria to "test for the use of illegal drugs by employees in sensitive positions." E.O. 12,564, 51 Fed. Reg. 32,899, 32,890 (1986), reprinted in 5 U.S.C.A. § 7301 (1999).
Footnote # 3 for 56 FLRA No. 9
Section 2. This Agreement is subject to reopening:
a. By mutual consent of the parties concerned;
b. When new or revised laws or regulations of appropriate authority require changes to provisions of the Agreement.
See Award at 4.
Footnote # 4 for 56 FLRA No. 9
Section 3(a) of the Executive Order requires the head of each Executive agency to "establish a program to test for the use of illegal drugs by employees in sensitive positions." Section 7(d) of the Executive Order defines categories of employees who occupy sensitive positions.
Footnote # 5 for 56 FLRA No. 9
The award may be susceptible to a third interpretation. Under that interpretation, the Agency could not designate additional testing positions, even though the designation is consistent with applicable judicial precedent, if the case law permitting the testing of those positions was in existence at the time the Agency developed its original list of TDPs.