U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

National Association of Government Employees, Local R4-75 and Department of the Interior, National Park Service, Asheville, North Carolina, 0-AR-3395, October 5, 2001, 57 FLRA No. 101.

In turning down union exceptions to an award in which the arbitrator found that the results of the grievant's pre-employment drug test were a proper basis for not selecting him for a permanent position, the Authority rejected the union's claim that the grievant had a property interest in the position. Although statements by management officials supported the conclusion that the grievant had been conditionally selected for promotion subject to passing a pre-employment drug test, FLRA said that under such circumstances "there is no basis to conclude that the grievant had a property interest in the position."

The grievant, a temporary employee, had applied for a permanent position and was given a starting date and a pre-employment drug test. Because the drug test revealed a urine specimen that was "dilute" and "[n]ot [c]onsistent with [h]uman [u]rine," the grievant was "non-selected" for the position. He grieved and the matter was referred to arbitration.

The arbitrator found that the agency's collection and testing procedures weren't flawed or improper and that the agency met its burden of proof that the grievant's specimen "was adulterated and there were no errors in the chain of custody." Because these findings outweighed testimony regarding the grievant's background, character, and job performance, the arbitrator concluded that the grievant's invalid urine specimen was a proper basis for his non-selection.

In its exceptions the union in effect claimed that the arbitrator exceeded his authority and that his non-selection deprived him of his constitutional right to due process. In rejecting the "exceed authority" exception, FLRA noted that the issue before the arbitrator was whether the adulterated urine specimen was a proper basis for 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 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.

In rejecting the union's "due process" exception, the Authority noted that although "a federal employee has a constitutional right to due process prior to the deprivation of a property interest in employment," the grievant didn't have a property interest in the position for which he was non-selected.

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 Service Comm'n, 589 F.2d 494 (10th Cir. 1978) (unnecessary to reach the due process claim where employee "chosen" and "informed of her selection" was denied after Civil Service Commission determined she was unqualified).

In these circumstances, there is no basis to conclude that the grievant had a property interest in the position. Thus, the Union has not demonstrated that the grievant's non-selection was contrary to any constitutionally protected right to due process possessed by the grievant.