Local
1433, International Association of Fire Fighters
And
City
of
Interest
Arbitration
Arbitrator: M. Zane Lumbley
Date
Issued:
Arbitrator: Lumbley; M. Zane
Case #: 09968-I-92-00214
Employer:
City of
Date Issued:
INTEREST ARBITRATION OPINION
AND AWARD
OF
M. ZANE LUMBLEY, IMPARTIAL
ARBITRATOR/CHAIRMAN
KEVIN
and
MICHAEL MCGOVERN,
UNION-DESIGNATED PANELIST
and
LOCAL 1433, INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS
AAA Case No. 75 L390 0208 92
PERC Case No. 9968-I-92-214
Draft Opinion and Award Issued
to Panelists:
Final Opinion and Award Issued
to Panelists:
Final Opinion and Award Issued
to Parties:
OPINION
PROCEDURAL MATTERS
The Impartial Arbitrator was selected by the parties as
the
Chairman of a three-person Interest Arbitration Panel.
Kevin Ferguson was designated
the Employer member of the
panel
and Michael McGovern the Union member of the panel. A
hearing
was conducted before the panel on
in
(hereinafter
the "City" or "Employer") was represented by
City
Attorney Greg A. Rubstello.
Local 1433, International
Association of Firefighters
(hereinafter the "
represented
by Alex J. Skalbania of the law firm of
Critchlow, Williams, Schuster, Malone
and Skalbania.
At the hearing, testimony was taken under oath and the
parties
presented documentary evidence. No court reporter
was
present. Instead, the Arbitrator tape recorded the
proceedings
in order to supplement his personal notes. The
parties
agreed upon the filing of posthearing briefs and
timely
briefs were received from the parties on January 25,
1993. Thereafter, pursuant to
agreement reached at hearing,
the
Interest Arbitration panel conferred by telephone on
the
Impartial Arbitrator, the parties answered in writing
several
questions for clarification raised with the partisan
panelists
by the Arbitrator. This response from the parties
was
received on
the
Impartial Arbitrator.
The procedure adopted at hearing by the Interest
Arbitration Panel called for
the Impartial Arbitrator to
complete
his Opinion within thirty days of his receipt of
briefs
and forward it to the partisan panelists for
concurrence
or dissent, signature and return to the Impartial
Arbitrator
for distribution to the parties. Thereafter,
extensions
of time were sought by and granted the Impartial
Arbitrator.
BACKGROUND
The City has been engaged in the development of a
substance-free
workplace policy since 1990. After much
management
discussion, it was determined to limit the testing
provisions
of the policy to alcohol initially.1 Once that
decision
was made, the City hoped to reach agreements on a
single
policy to be applied uniformly to its four represented
employee
units and its unrepresented employees alike. The
policy
proposed by the City is set forth in its
Administrative Order No. 65-A entitled "Substance-Free Work
place."
By the time of the hearing herein, it appears
agreement
had been reached with respect to all the City's
employees
except those in the instant unit which includes the
City's
firefighters holding the rank of captain and below.
1 The policy negotiated on behalf of the
City's police
officers,
however, also includes a drug search policy by virtue of
their
more frequent contact with drugs in the line of duty.
_____
The disputed portions of Administrative Order No. 65-A
are
set forth in Article IX thereof entitled "Inspections."
After bargaining and mediation
with the assistance of the
parties
agreed to implement Administrative Order No. 65-A but
for
the disputed provisions which have been brought before
the
undersigned panel for resolution at interest arbitration
pursuant
to RCW 41.56.450. As the City proposed them, those
disputed
provisions stated:
__________________________________________
IX. INSPECTIONS
1. Definitions. "Reasonable suspicion" exists
when a
person responsible for a search is
aware
of specific articuable [sic] facts, and
inferences
from those facts, which reasonably
warrant suspicion
that evidence will be
uncovered.
2. City furnished work place, vehicles, lockers,
and
other receptacles. The City may search at
any
time for any administrative or work-
related
reason, including investigation of the
violation
of the prohibitions listed in
Article VIII, any employer
furnished office
space,
desk, locker, file cabinet, motor
vehicle,
or any other item of City property
maintained
for the use of employees in their
work.
For this reason, employees are discouraged
from
bringing to the work place items of a
personal
nature they would not want viewed or
inspected
by others.
3. Personal items. Closed personal containers
and
pockets of trousers, shirts, coats and
jackets
brought to the work place or placed in
City furnished vehicles may be
searched for
evidence
of a violation of any prohibition
listed
in Article VIII only when reasonable
suspicion
exists.
4. Police officers. When probable cause exists,
an
item-by-item search of the uniform parts
and
personal clothing of a police officer,
down
to the officer's skin or underwear, may
occur
in investigation of a violation of a
prohibition
listed in Article VIII. Any such
search
shall be conducted out of view of
persons
not responsible for the search and
without
physical contact.2
2 This is the provision referred to above
which was
intended
by the Employer to apply only to police officers.
_____
Searches will be conducted in the presence of the
employee
if on duty, if off duty the employer shall
make a
reasonable effort to advise the employee of
the
search and give him a reasonable opportunity to
return
and observe the search. Searches conducted
in
the employee's absence will be conducted before
a
bargaining unit representative if the employee is
represented.
Whenever the City of
suspicion
that an employee is consuming alcohol on
City premises or during
working hours in violation
of
this policy, the City may request one or more
samples
of the employee's breath or blood for
testing
for blood/alcohol [sic] level. The
employee
will be given the election of breath or
blood
testing. Breath testing shall be performed
by
qualified personnel on equipment and utilizing
procedures
approved by the State Toxicologist and
promulgated
in the
If a blood sample is requested, two samples shall
be
drawn. One sample shall be sent to the State
Toxicologist for analysis and
the second sample
shall
be analyzed by a local medical laboratory.
If a local medical laboratory
is unavailable, then
the
second sample shall also be sent to the State
Toxicologist
for analysis.
__________________________________________
DISCUSSION AND ANALYSIS
For ease of understanding, the disputed provisions will
be
addressed in individual issue form, framed in the fashion
proposed
by the
Issue No. 1: Must laboratories conducting blood tests
pursuant
to the City's alcohol testing policy be certified by
an
appropriate state, federal or organization?
The
City's policy should be certified;
the City contends no such
certification
is necessary.
Since the parties have already agreed that, in the event
an
employee requests a blood test, two samples will be drawn
and
that one will be sent to the State Toxicologist for
analysis,
the dispute here relates only to the testing of the
second
blood sample. The
because
it both comports with the limited examples of the
procedure
followed by other jurisdictions which were entered
in
the record and best insures qualified handling of the
relevant
blood samples. However, the evidence adduced at
hearing
also demonstrates the parties are in agreement that
the
local
which
the City has contracted to administer its Employee
Assistance Program, employs
blood testing procedures which
are
acceptable to both parties. Accordingly, the second
blood
sample drawn shall be sent for analysis to either the
local
laboratory
certified by the National Institute for Drug Abuse
or
the National Institutes of Health. Lastly, in line with
the
proposals offered by both parties during negotiations, if
such a
medical laboratory is not available locally, the
second
blood sample will also be sent to the State
Toxicologist
for analysis.
Issue No. 2: Should a specified standard be established
in
order to clarify the blood alcohol level constituting a
positive
test for alcohol usage on the part of a firefighter
pursuant
to the City's policy and, if so, what should that
specified
standard be?
The
recommends
the standard of .10 be adopted; the City argues a
standard
should not be adopted because one such as that urged
by
the
against
consuming any amount of alcohol on City premises or
during
working hours to go without discipline where the
standard
was not satisfied and because it should be allowed
to
consider other evidence such as behavior in determining
whether
an employee is under the influence.
In deciding this issue it is important to note, as the
Employer's arguments make
clear, that there are two parts to
this
dispute. One is the City's testing of an employee
pursuant
to its "reasonable suspicion that an employee is
consuming
alcohol on City premises or during working hours,
which
the parties have agreed should appear in Article IX of
the
City's policy, and the other is the testing of an
employee
by the City for suspected violation of the agreed-
upon
Article VIII prohibition of being ". . . under the
influence
of . . alcohol on City premises or on City
business,
in City supplied vehicles, during working hours.
While much energy was expended
discussing what would
constitute
"positive" test results, and it appeared initially
that
that term had relevance only in the context of the
latter
question, namely whether an employee is "under the
influence,"
it can reasonably be seen as relevant to the
matter
of consumption on City premises or during working
hours,
as well.
For purposes of testing for Article VIII violations of
the
prohibition of being " . . . under the influence of . . .
alcohol
on City premises or on City business, in City
supplied
vehicles, during working hours", the
proposal
of the use of the .10 grams per 100 milliliters of
blood/.10
grams per 210 liters of breath used by the State in
its
prosecution of motor vehicle operator criminal cases is
reasonable
and should be adopted as the definition of a
"positive"
test result. Scrutiny of the
Protection District #9/IAFF
Local 2221 Labor Agreement
excerpt
and the IAFF Model Drug and Alcohol Testing Policy
excerpt,
both of which were entered in the record as
Exhibit No. 7, discloses that
was the intent of the use of
the
word "positive" in those policies. Thus, where the
Employer chooses to test to
determine if an employee is under
the
influence, a result equal to or greater than .10 grams
per
100 milliliters of blood/.10 grams per 210 liters of
breath
will be required for it to be considered "positive,"
i.e.
to demonstrate that the "employee's work performance or
conduct
on the job is affected in any appreciable degree."
The consumption of alcohol on City premises or during
working
hours is a different question, however. Because the
consumption
under either circumstance is a flat prohibition
no
discretion concerning impairment is involved. Thus the
various
court decisions cited by the
Accordingly, a test
administered for purposes of collecting
evidence
with respect to the question whether an employee has
violated
the Article IX rule against the consumption of
alcohol
on City premises or during working hours which
demonstrates
the presence of any alcohol in the employee's
body
will be considered "positive." This is not to say, of
course,
that the presence of alcohol in the body of an
employee
will demonstrate, in and of itself, that he or she
has
consumed alcohol on City premises or during working
hours.
Instead, the presence of alcohol in the employee's
body
is merely one piece of evidence which may be considered
by
the City in determining whether an employee, in fact,
violated
that provision of Article IX of the Employer's
workplace
policy.
Issue No. 3: Should the City, before it conducts any
search
in connection with the City's alcohol testing policy
that
is subject to a "reasonable suspicion" standard, be
required
to provide the Local 1433 member who is the subject
of
the search with prior written notification of the specific
facts
which have caused the City to have a "reasonable
suspicion"
that such a search is necessary and appropriate?
The
such
advance written notification; the City disagrees.
The parties reached agreement in negotiations that
Article IX should define
"reasonable suspicion" as follows:
"'Reasonable suspicion'
exists when a person responsible for
a
search is aware of specific [articulable] facts, and
inferences
from those facts, which reasonably warrant
suspicion
that evidence will be uncovered."3 With one minor
modification,
adoption of the
written
notification of the facts causing the City to have
reasonable
suspicion be given is warranted. Since as the
Union argues, the City must
already be in possession of the
"specific
articulable facts, and inferences from those facts,
which
reasonably warrant suspicion that evidence will be
uncovered"
in order for "reasonable suspicion" to exist, a
requirement
for a brief recitation of those facts in writing
before
the search occurs is not unduly burdensome. Most
importantly,
to require the City to list those facts
beforehand
protects both parties in the event an argument
subsequently
is raised with respect to after-the-fact notions
supporting
the search. In disagreement with the City and in
agreement
with the
documentation
contained in Section 16.03 of Union Exhibit No.
4, the excerpt from the
Collective Bargaining
Agreement, must be taken as a
requirement
for prior written documentation because that
provision
also notes, "No such testing may be conducted
without
the written approval of the Fire Chief." Such a
provision
would be meaningless if the relevant official were
allowed
to "document in writing who is to be tested and why
the
testing was ordered," as that contract also requires,
after
the fact. The modification of the
referenced
above is the addition of the
shift
representative as an optional person to whom the City's
written
reasons may be given in the absence of the affected
employee
in order that the finding with regard to this issue
might
be consistent with the finding to be made infra with
respect
to Issue No. 4.
3 Of course, whether the standard of
"reasonable suspicion"
or
some other standard should be applied to certain kinds of
searches
has yet to be determined and will be decided infra.
_____
Issue No. 4: Should any searches that are conducted by
the
City in connection with the City's alcohol testing policy
be
conducted only in the presence of the Local 1433 member
who
is the subject of the search?
The
The City contends searches
should occur in the presence of
the
relevant employee if he or she is on duty or in a
position
to return to the facility in question in response to
a
reasonable effort on the part of the City to notify the
employee,
but that it would also be proper to conduct the
search
in the presence of a unit representative if the
employee is
not there.
The City's approach is the more reasonable of the two.
Firefighters do not work 9 to
5 jobs, five days a week.
Instead, they work rotating
shifts of 24 hours on duty and 48
hours
off duty. In addition, they receive Kelly days,
vacation
time and sick leave. If the City meets the relevant
standard,
yet to be determined infra, justifying a search, it
should
not have to delay a search as long as 48 hours or
more.
The City's proposal provides for delaying the search
temporarily
until a reasonable effort to give the employee
the
opportunity to be present has been made and for
conducting
the search in the presence of a bargaining unit
representative
selected by the
employee.
Those are sufficient safeguards to protect the
rights
of the employee. In reaching this decision, the
rights
of the affected employee have been balanced against
the
rights of the City to conduct its affairs in a timely
fashion
to safeguard potential evidence of violations of its
alcohol
policy and, where warranted, to proceed with the
gathering
of additional evidence on the basis of any
discoveries
made before that evidence becomes stale.
Issue No. 5: What standard should the City be required
to
meet before it conducts a search of a Local 1433 member's
personal
belongings such as the contents of gym bags in
connection
with the City's alcohol testing policy?
The
the
"probable cause" standard before conducting searches of
unit
employees' personal belongings; the City argues it
should
have to meet only the "reasonable suspicion" standard
with
respect to searches of personal belongings.
This issue will be discussed simultaneously with Issue
No.
6 below.
Issue No. 6: What standard should the City have to meet
before
it searches lockers that are provided to Local 1433
members
at the City's fire stations?
The
should
be applied to searches of employee lockers; the City
contends
it should be allowed to search lockers at any time
for
any work related reason without satisfying any particular
standard.
As noted in the plurality opinion issued by the United
States Supreme Court in
O'Connor v. Ortega, 480
716 (1987), a case involving
the search of the office of a
doctor
employed by a state hospital:
__________________________________________
We have no talisman that
determines in all cases
those
privacy expectations that society is prepared
to
accept as reasonable. . .
Because the reasonableness of an expectation
of
privacy, as well as the appropriate standard for
a
search, is understood to differ according to
context,
it is essential to delineate the
boundaries
of the workplace context. The workplace
includes
those areas and items that are related to
work and
are generally within the employer's
control.
At a hospital, for example, the hallways,
cafeteria,
offices, desks, and file cabinets, among
other
areas, are all part of the workplace. These
areas
remain part of the workplace even if the
employee
has placed personal items in them, such as
a
photograph placed in a desk . .
Not everything that passes through the
confines
of the business address can be considered
part
of the workplace context, however. An
employee
may bring closed luggage to the office
prior
to leaving on a trip, or a handbag or
briefcase
each workday. While whatever expectation
of
privacy the employee has in the existence and
the
outward appearance of the luggage is affected
by
its presence in the workplace, the employee's
expectation
of privacy in the contents of the
luggage
is not affected in the same way. The
appropriate
standard for a workplace search does
not
necessarily apply to a piece of closed personal
luggage,
a handbag, or a briefcase that happens to
be
within the employer's business address.
[Emphasis
in original].
__________________________________________
The City provides individual lockers for the use of each
of
its firefighters at both its downtown and airport
stations.
The lockers generally are arranged in groups of
three between
the beds located in the sleeping area or
"bedroom
of each station. Unlike the beds, which are used
by
more than one employee on a rotating shift basis, each
locker
is assigned permanently to only one employee. Most
are
identified by the name of the user on the outside of the
door.
In those lockers the employees keep not only their
employer
provided duty uniforms and PE clothing but also
personal
gear such as gym bags, shaving and feminine hygiene
items,
family pictures, house slippers, reading and writing
materials,
medications and so forth. Employees appear not
only
to use their lockers during their duty shifts but also
to
leave items in them when they are not on duty.
Although Fire Chief Dickinson historically has looked
freely
in the lockers in order to determine whether employees
are
following his directives such as the prohibition of pin
ups
and other material likely to offend, the parties are in
agreement
that employees may place locks on their lockers and
that
no keys of combinations are provided the City if locks
are
used by employees. Moreover, it is undisputed no form is
signed
by employees which addresses locker entry when lockers
are
issued. Lastly, it is agreed that anytime the Fire Chief
wanted
access to a locked employee's locker either for the
kind
of check referenced above or in order to locate some
needed
piece of equipment, the relevant employee, if not
present
at the station, was called in to open the locker.
The only occasion cited on
which an employee's lock was
removed
forcibly occurred when it was necessary to clean out
the
locker of an individual on a long-term disability so that
it
could be assigned to someone else.
Without question, the lockers provided employees at the
fire
stations are, in the words of the Ortega plurality, ". .
. areas
. . . related to work and . . . generally within the
employer's
control." Id., at 715. Thus they ordinarily
". .
. remain
part of the workplace even if the employee has
placed
personal items in them . . . ." Id., at 716.
However, this ". . . does
not necessarily apply to a piece of
closed
personal luggage, a handbag, or a briefcase that
happens
to be within the employer's business address." Ibid.
Moreover, as has been recognized elsewhere, while it
could
be inferred unlocked lockers ". . . were subject to
legitimate,
reasonable searches . . . " by an employer, where
". . . the employee
purchases and uses his own lock on the
lockers,
with the employer's knowledge, the fact finder is
justified
in concluding that the employee manifested, and the
employer
recognized, an expectation that the locker and its
contents
would be free from intrusion and interference.
K-Mart v. Trotti,
677 S.W.2d 632, 637 (Tex. App.-Houston,
1984). Where breaking of locks
on doors leading to an
individual's
office, desk and storage compartment was
permitted,
a court, relying on Ortega, ruled such a search
was
legitimate because there were " . . reasonable
grounds
to
suspect that plaintiff was guilty of work related
misconduct
and that the search of his former office might
turn
up evidence thereof." Diaz Camacho v. Lopez Rivera, 699
F.2d
1020, 1025 (D.P.R. 1988).
In analyzing the case at hand it is important to
remember
not only what the dispute involves but what it does
not
involve. At issue here is the promulgation and
enforcement
of a substance-free workplace policy which is
aimed
for the time being solely at alcohol. The dispute does
not
involve allegations of criminal activity, investigation
of
compliance with City policies such as the prohibition of
arguably
offensive or inflammatory pictures or language, or
noninvestigative work related matters such as
temporarily
mislaid
equipment. Thus application of considerations
relevant
to matters such as those is misplaced.
When one focuses on the narrow dispute here, it seems
clear
that the standard of "reasonable suspicion" should be
applied
in the case of searches addressed in both Issues No.
5 and 6.4 There is no need to treat the two differently for
purposes
of the Employer's alcohol policy; except as set
forth
infra the City must have a reasonable suspicion that an
employee
is in violation of the policy before either a locker
or
any closed personal container, be it a gym bag, briefcase,
or
thermos bottle, can be searched.5 Given the historic
use,
with the Employer's knowledge and acquiescence, of
personal
locks on the lockers by employees, the same privacy
expectation
may be said to exist with respect to both.
However, the expectation
cannot reasonably be said to exist
as
to lockers unless employees choose to place locks on them
and
the City will not be required to demonstrate reasonable
suspicion
to search a locker where that is not the case.6
4 Because allegations of violations of
criminal statutes
are
not involved here, there is no need to elevate the standard the
Employer must meet to that of
"probable cause" for searches of
personal
containers brought to the workplace by employees. In this
connection,
as the Employer notes, employees control the contents
of
those containers. Moreover, the standard of reasonable
suspicion
for searches of closed containers and clothing not being
worn
comports with the standard agreed to by the City and its
police
officers.
5 The parties are in agreement that pockets
of trousers,
shirts,
coats and jackets which are not being worn by an employee
at
the time of a search should be treated in the same fashion as
closed
personal containers.
6 The record demonstrates some employees do
not place locks
on
their lockers. Some apparently even leave their locker doors
ajar.
Henceforth, such choices will constitute a waiver. With the
policy
found appropriate herein, the employees, in essence, may
choose
their own level of privacy expectation and the Employer will
be
privileged to act accordingly.
_____
Issue No. 7: Should a Local 1433 member who has tested
positive
on an alcohol test that is conducted pursuant to the
City's proposed alcohol
testing policy have the option of
requesting a
second breath or blood alcohol test at the
City's expense to determine
whether the results of the first
test
that was conducted were accurate?
The Union asserts employees testing positive to an
initial
test should be allowed to request that a second test
be
performed by different personnel on different equipment at
the
City's expense; the City contends such a procedure should
not
be adopted unless the second test is performed at the
employee's
expense.
The essence of the Union's proposal is most reasonable
and
should be adopted. Both the Employer and its employees
have
substantial, legitimate interests which must be
considered
in deciding this issue. The Employer must be
certain
its employees are capable of performing their duties
free
of any alcohol impairment, especially in view of the
critical
nature of the service rendered the public.
Employees, on the other hand,
given the seriousness of the
charges
leading to such testing and the effect the results
can
have on their livelihood, must be absolutely assured of
the
presence of due process in the testing procedure.
Without doubt, one way to
ensure the achievement of both
goals
is via the accuracy and reliability of the results of
the
tests utilized.
If an employee chooses to have the initial test
performed
on his or her blood, a second test automatically
will
be performed at the Employer's expense under the policy
as
proposed by the Employer since two samples are drawn for
testing
at the outset. The dispute thus concerns only the
administration
of a second test in the event an employee
chooses
to have his or her breath tested initially and that
test
produces a positive result.7
7 What constitutes a "positive"
test result has been dealt
with
in deciding Issue No. 2 above.
_____
The record demonstrates the City has available to it on
short
notice a number of BAC verifier DataMaster breath
testing
machines used by law enforcement agencies in the
State
of Washington. The parties stipulated that that
equipment
produces a test result within a few minutes of the
giving
of a breath sample. It is also apparent from the
record
that portable breathalyzer units are accessible to the
City. However,
the results produced by those machines are
not
admissible in criminal cases in the State of Washington.
Lastly, it will be recalled
that it has been determined with
respect
to Issue No. 1 above that the second blood sample
drawn
in the event an employee elects to have his or her
blood
tested will be sent for analysis to either the local
Lourdes Hospital Business
Health Service facility, a
laboratory
certified by the National Institute for Drug Abuse
or
the National Institutes of Health or, in the event such a
local
medical laboratory is not available, to the State
Toxicologist
for analysis.
It is eminently reasonable for an employee whose breath
tests
positive to be able to request a second test. This is
particularly
so given the fact the parties are in agreement
that
an employee's blood sample will be tested twice if he or
she
selects that test rather than a breath test. It is also
important
to note that the speed with which results are
produced
when BAC Verifier DataMaster breath testing machines
are
used for the initial test reduces the overall potential
burden
of the testing process on the Employer to little more
than
that existing in the event the employee had chosen a
blood
test initially.
However, it accomplishes little to have the second test
performed
on the same equipment as the initial test. Nor
should
equipment the results of testing on which are
inadmissible
in the courts of this state be used for the
second
test. The best option is to utilize a blood test for
this
purpose. Since a procedure for conducting blood alcohol
tests
has already been found appropriate in Issue No. 1
above,
a portion of it should be used here as well. Thus an
employee
testing positive as the result of an initial breath
test
will be allowed to request a single confirming test be
performed
on his or her blood by one of the institutions
found
appropriate in Issue No. 1 above at the Employer's
expense.
Such a right is not only reasonable but consistent
with
provisions contained in collective bargaining agreements
of
several other jurisdictions, excerpts from which were
entered
in the record by the Union.
*
*
*
*
AWARD
I. It is the Award of the Impartial Arbitrator that
Article IX of the City's
Administrative Order No. 65-A, the
Substance-Free Workplace Policy, shall be worded as follows:
__________________________________________
IX. INSPECTIONS
1. Definitions. "Reasonable suspicion" exists
when a
person responsible for a search is
aware
of specific articulable facts, and
inferences
from those facts, which reasonably
warrant
suspicion that evidence will be
uncovered.
2. City furnished work place, vehicles, lockers,
and
other receptacles. The City may search at
any
time for any administrative or work-
related
reason, including investigation of the
violation
of the prohibitions listed in
Article VIII, any employer
furnished office
space,
desk, locker which has no employee-
provided
lock on it, file cabinet, motor
vehicle,
or any other item of City property
maintained
for the use of employees in their
work.
Lockers with employee-provided locks on
them
may be searched by the City for evidence
of a
violation of any prohibition listed in
Article VIII only when
reasonable suspicion
exists.
Employees are discouraged from bringing to the
work
place items of a personal nature they
would
not want viewed or inspected by others.
3. Personal items. Closed personal containers
and
pockets of trousers, shirts, coats and
jackets
brought to the work place or placed in
City furnished vehicles but
not being worn by
an
employee may be searched for evidence of a
violation
of any prohibition listed in Article
VIII only when reasonable
suspicion exists.
4. Notice and employee presence. The City will
provide
the Local 1433 member who is the
subject
of the search, or the Union's
designated
shift representative in the absence
of
the affected employee, with prior written
notification
of the specific facts which have
caused
the City to have a reasonable suspicion
that
such a search is necessary and
appropriate.
Searches will be conducted in
the
presence of the employee if on duty. If
off
duty, the City shall make a reasonable
effort
to advise the employee of the search
and
give the employee a reasonable opportunity
to
return and observe the search. Searches
conducted
in the employee's absence will be
conducted
before the Union's designated shift
representative.
5. Alcohol testing. Whenever the City of Pasco
has a
reasonable suspicion either that an
employee
is consuming alcohol on City premises
or
during working hours in violation of this
policy
or that an employee is under the
influence
of alcohol in violation of this
policy,
the City may request one or more
samples
of the employee's breath or blood for
testing
for alcohol level. The employee will
be
given the election of breath or blood
testing
for his or her initial test.
If blood testing is requested, two samples
shall
be drawn. One sample shall be sent to
the
State Toxicologist for analysis and the
second
sample shall be analyzed by either the
local
Lourdes Hospital Business Health Service
facility or
a laboratory certified by the
National Institute for Drug
Abuse or the
National
Institutes of Health. If such a
medical
laboratory is not available locally,
the
second blood sample will also be sent to
the
State Toxicologist for analysis.
If breath testing is
requested, it shall be
performed
by qualified personnel on equipment
and
utilizing procedures approved by the State
Toxicologist and promulgated
in the Washington
Administrative
Code. In the event of a
positive
breath test, the employee shall have
the
option of requesting a blood alcohol test
to
determine whether the results of the breath
test
that was conducted were accurate. If
such a
blood test is requested, only one
sample
will be drawn and it shall be analyzed
by
either the local Lourdes Hospital Business
Health Service facility or a
laboratory
certified
by the National Institute for Drug
Abuse
or the National Institutes of Health.
If such a medical laboratory
is not available
locally,
the blood sample will be sent to the
State
Toxicologist for analysis.
A "positive" test administered for the purpose
of
collecting evidence with respect to the
question
whether an employee has violated the
rule
against consuming alcohol on City
premises
or during working hours shall be one
which
demonstrates the presence of any amount
of
alcohol in the employee's body. A
"positive"
test administered for the purpose
of
determining whether an employee is under
the
influence of alcohol shall be one which
demonstrates
the presence of alcohol in an
amount
equal to or greater than .10 grams per
100 milliliters of blood or
.10 grams per 210
liters
of breath in the employee's body. All
testing
shall be performed at the City's
expense.
6. Police officers. When probable cause exists,
an
item-by-item search of the uniform parts
and
personal clothing of a police officer,
down
to the officer's skin or underwear, may
occur
in investigation of a violation of a
prohibition
listed in Article VIII. Any such
search
shall be conducted out of view of
persons
not responsible for the search and
without
physical contact.
__________________________________________
II. The Panel will reserve jurisdiction for a
reasonable
period of time after issuance of this Award to
assist
the parties as may be necessary in implementing
Article IX of Administrative
Order No. 65-A as directed in
Paragraph I of this Award.
Snohomish ,
Washington /s/
July 17, 1993 M. Zane Lumbley,
Impartial Arbitrator/
Interest
Arbitration Panel Chairman
Signatures of partisan
Arbitration panelists
July 6, 1993, Revised Opinion
and Award
AAA Case No. 75 L390 0208 92
PERC Case No. 9968-I-92-214
Concur Dissent Concur Dissent
Issue No. 1 x
Issue No. 2 x
Issue No. 3 x
Issue No. 4 x
Issue No. 5 x
Issue No. 6 x
Issue No. 7 x
/s/
Kevin Ferguson Michael McGovern
Employer Member Union Member
Date Date
7-8-93
Concur Dissent Concur Dissent
Issue No. 1 KEF
Issue No. 2 KEF
Issue No. 3 KEF
Issue No. 4 KEF
Issue No. 5 KEF
Issue No. 6 KEF
Issue No. 7 KEF
/s/
Kevin Ferguson Michael McGovern
Employer Member Union Member
Date July 9, 1993 Date