National Association of Government Employees, Local R4-75 (Union) and United States Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina (Agency)

[ v57 p568 ]

57 FLRA No. 101

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R4-75
(Union)

and

UNITED STATES DEPARTMENT OF THE
INTERIOR, NATIONAL PARK SERVICE
BLUE RIDGE PARKWAY
ASHEVILLE, NORTH CAROLINA
(Agency)

0-AR-3395

_____

DECISION

October 5, 2001

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

Decision by Member Pope for the Authority

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Jerome H. Ross filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator found that the results of the grievant's pre-employment drug test were a proper basis for the Agency to non-select him for a permanent position. Accordingly, the Arbitrator denied the Union's grievance.

      For the reasons that follow, we find that the Union has failed to show that the award is deficient under § 7122(a) of the Statute. Therefore, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      The grievant, a temporary employee, applied for a permanent position. He was given a starting date and a pre-employment drug test. The grievant's drug test revealed a urine specimen that was "dilute" and "[n]ot [c]onsistent with [h]uman [u]rine." Award at 3. Based on the results of the grievant's drug test, the Agency "non-select[ed]" the grievant for the position. Id. at 1, 10.

      The Union filed a grievance protesting the grievant's non-selection. When the grievance was not resolved, the matter was submitted to arbitration. As relevant here, the parties stipulated to the following issue: "Whether the [grievant's] non-selection, based upon an invalid sample of [his] urine specimen, was a proper basis for the action." Id. at 4; Exceptions at 3-4; Opposition at 6.

      The Arbitrator found that the Agency's collection and testing procedures were not "flawed or improper." Award at 8, 9. In addition, the Arbitrator determined that "the Agency has met its burden of proof" under its regulations that the grievant's specimen "was adulterated and there were no errors in the chain of custody." Id. at 9. Moreover, the Arbitrator found "unpersuasive the Union's contention that the testimony regarding the grievant's background, character, job performance and actions before and after testing outweighs the medical records and medical findings" from the grievant's drug test. Id.

      Based on these findings, the Arbitrator concluded that the grievant's invalid urine specimen was a proper basis for his non-selection. Accordingly, the Arbitrator denied the Union's grievance.

III.     Positions of the Parties

A.     Union's Exceptions

      The Union contends that the Arbitrator failed to address the issues before him, whether "the [A]gency met its burden of proof that the [g]rievant tampered with his test" and "how this was supposed to have occurred." Exceptions at 4. The Union also argues that the Agency's failure to promote the grievant based on the results of his drug test deprived him of his constitutional right to due process. In this regard, the Union contends that, once selected, the grievant had a property interest in his higher-graded position and was entitled to "reasonable due process and [an] opportunity to make a meaningful reply." Id. at 5.

B.     Agency's Opposition

      The Agency contends that the Arbitrator addressed the issue before him of whether the grievant's non-selection was proper. In this regard, the Agency asserts that the Arbitrator reviewed the Agency's drug testing procedures, determined that they had been followed in the grievant's case, and weighed the evidence presented by each party. The Agency also argues that the grievant was not selected for promotion, and therefore did not have a property interest in the position for which he was non-selected. [ v57 p569 ]

IV.     Analysis and Conclusions

A.     The Arbitrator Did Not Exceed His Authority

      We construe the Union's argument that the Arbitrator failed to address whether, and how, the grievant tampered with his urine specimen as an argument that the Arbitrator exceeded his authority. An arbitrator exceeds his authority when, among other things, he fails to resolve an issue submitted to arbitration. AFGE, Local 1617, 51 FLRA 1645, 1647 (1996).

      The issue before the Arbitrator was whether the adulterated urine specimen was a proper basis for the grievant's non-selection. In determining that the adulterated sample was a proper basis for the non-selection, the award is directly responsive to the stipulated issue. Moreover, in finding that the Agency had demonstrated that the grievant's specimen was adulterated and that there were no errors in the chain of custody or testing procedures, the Arbitrator effectively found that the grievant tampered with his urine sample. Thus, the Union has not demonstrated that the Arbitrator exceeded his authority. See United States Dep't of the Air Force, Warner Robins Air Logistics Ctr., Robins Air Force Base, Ga., 56 FLRA 498, 500 (2000).

B.     The Arbitrator's Award is Not Contrary to the Grievant's Right to Due Process

      Under the Fifth Amendment, a federal employee has a constitutional right to due process prior to the deprivation of a property interest in employment. See United States Dep't of Veterans Affairs, Nat'l Mem'l Cemetery of the Pac., 45 FLRA 1164, 1175 (1992) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (Loudermill) and Board of Regents v. Roth, 408 U.S. 564, 576-78 (1972) (Roth)). However, property interests "are not created by the Constitution, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source, such as . . . law." Id. at 1175 (quoting Loudermill, 470 U.S. at 538; Roth, 408 U.S. at 577) (federal statute created property interest in employment). To have a property interest in employment, a person must have a "legitimate claim of entitlement" to such employment. Roth, 408 U.S. at 577.

      The Union argues that the grievant had a property interest in the position to which he sought promotion because he was "competitively selected." Exceptions at 1. In support, the Union asserts that the grievant was informed by Agency supervisors that "he was likely to receive the position" and that "they were going to forward the paperwork for his selection to the position." Exceptions at 1, 2. In this regard, the Arbitrator found that the Agency's District Facility Manager told the grievant that the grievant would begin work in his new position on a certain date and that he would be contacted for a drug test.

      The Union's argument and the Arbitrator's findings support a conclusion that the grievant was conditionally selected for promotion, subject to passing a pre-employment drug test. The Union provides no authority, however, for the proposition that such a conditional selection for employment confers a property interest, and points to no statutes or regulations that support its assertion that a property interest was created. Further, various courts have found that conditional appointments do not confer a property interest. See, e.g., Nunez v. City of L.A., 147 F.3d 867, 872-73 (9th Cir. 1998) (no property interest in promotion where promotion contingent on success on exam); NTEU v. Reagan, 663 F.2d 239 (D.C. Cir. 1981) (revocable appointment does not provide legitimate claim of entitlement under Roth); Vukonich v. Civil Serv. Comm'n, 589 F.2d 494 (10th Cir. 1978) (unnecessary to reach due process claim where employee "chosen" and "informed of her selection" was denied promotion after Civil Service Commission determined she was unqualified).