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56 FLRA No. 139
U.S. Dept. of Defense, Defense Logistics Agency, Defense Distribution Depot, Red River, Texarkana, Texas and National Association of Government Employees, Local R14-52 (Ruiz, Arbitrator), 0-AR-3192
This case presented exceptions to an arbitration award filed by the Agency. The award arose out of the remand ordered by the Authority in 56 FLRA 62 (2000). On remand from the Authority, the Arbitrator addressed the Authority's request to clarify what he meant when he used the words "though federal court decisions" in the initial award. The Authority concluded that the award as clarified was deficient under section 7122(a) of the Statute because it restricted the Agency head's discretion in a manner that was inconsistent with the Executive Order. The Authority noted that the effect of Article XL, as interpreted and applied by the Arbitrator, was to "lock in," at the point in time that the parties agreed to that provision in 1993, the specific position titles subject to random drug testing as part of the Agency's Drug-Free Workplace Plan. As a result, the award prevented the Agency from adding any new TDPs to the Plan unless Federal court cases decided after the parties signed their 1993 agreement add to, clarify, or expand the number of positions that might be designated by the Agency.
The Authority explained that 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." The Authority further stated that section 7(d) clearly requires the Agency head to have the ability to designate as "sensitive" all employees in positions that fall under the scope of the Order. Here, the Arbitrator effectively ruled that the terms of Article XL prevented the Agency head from adding any TDPs to the Plan, unless the Agency head received specific judicial approval from cases decided after the parties signed their 1993 agreement. As such, the award restricted the Agency head's ability to designate new positions as "sensitive" which it would otherwise be able, or required, to designate under section 7(d) of the Executive Order.