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57 FLRA No. 101
National Association of Government Employees Local R4-75 and U. S. Dept. of the Interior National Park Service, Blue Ridge Parkway Asheville, North Carolina (Ross, Arbitrator), 0-AR-3395 (Decided October 5, 2001)
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. The Authority concluded that the Union failed to show that the award was deficient under § 7122(a) of the Statute. The Authority concluded that the Arbitrator did not exceed his authority noting that an arbitrator exceeds his authority when, among other things, he fails to resolve an issue submitted to arbitration. Here, the Authority found that the award was directly responsive to the stipulated issue.
Additionally, the Authority concluded that the Arbitrator's award was not contrary to the grievant's right to due process. The Authority noted that under the Fifth Amendment, a Federal employee has a constitutional right to due process prior to the deprivation of a property interest in employment. However, the Authority explained that 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. To have a property interest in employment, a person must have a legitimate claim of entitlement to such employment. In the circumstances of this case, there was no basis to conclude that the grievant had a property interest in the position. Thus, the Union failed to demonstrate that the grievant's non-selection was contrary to any constitutionally protected right to due process possessed by the grievant.