INTEREST ARBITRATIONS

Decision Information

Decision Content

Local 1433, International Association of Fire Fighters

And

City of Pasco

Interest Arbitration

Arbitrator:      M. Zane Lumbley

Date Issued:   07/17/1993

 

 

Arbitrator:         Lumbley; M. Zane

Case #:              09968-I-92-00214

Employer:          City of Pasco

Union:                IAFF; Local 1433

Date Issued:      07/17/1993

 

 

 

INTEREST ARBITRATION OPINION AND AWARD

OF

M. ZANE LUMBLEY, IMPARTIAL ARBITRATOR/CHAIRMAN

KEVIN FERGUSON, EMPLOYER-DESIGNATED PANELIST,

and

MICHAEL MCGOVERN, UNION-DESIGNATED PANELIST

 

CITY OF PASCO, WASHINGTON,

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: June 23, 1993

Final Opinion and Award Issued to Panelists: July 6, 1993

Final Opinion and Award Issued to Parties: July 17, 1993

 

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 January 11, 1993,

in Richland, Washington. The City of Pasco, Washington,

(hereinafter the "City" or "Employer") was represented by

City Attorney Greg A. Rubstello. Local 1433, International

Association of Firefighters (hereinafter the "Union) was

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

January 28, 1993. On February 26, 1993, at the request of

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 March 1, 1993, and the record was closed by

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

Washington Public Employment Relations Commission failed, 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 Pasco has a reasonable

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 Washington Administrative Code.

      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 Union.

      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 Union argues laboratories utilized pursuant to 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 Union's proposal should be adopted

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 Lourdes Hospital Business Health Service, with

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 Lourdes Hospital Business Health Service facility or a

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 Union asserts a standard should be established and

recommends the standard of .10 be adopted; the City argues a

standard should not be adopted because one such as that urged

by the Union would permit violations of the agreed-upon rule

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 Union's

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 Pierce County Fire

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 Union

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 Union are inapposite.

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 Union asserts the City should be required to provide

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 Union's proposal that prior

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 Union, the reference to written

documentation contained in Section 16.03 of Union Exhibit No.

4, the excerpt from the Walla Walla Fire Department

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 Union's proposal

referenced above is the addition of the Union's designated

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 Union would answer this question in the affirmative.

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 Union in the absence of 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 Union asserts the City should be required to meet

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 Union argues the "reasonable suspicion" standard

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 US 709, 715-

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

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.