By Anthony Rice
In the City of Ocala, an arbitrator found that the City did not violate the CBA when it urine tested 19 firefighters who had access to two fire trucks from which narcotics went missing.
The grievance arose when the City discovered that six vials—two vials of Morphine and four vials of Fentanyl—were missing from two different fire department trucks at two different fire stations. The Fire Chief thus ordered firefighters and other fire department employees, who had access to the two trucks during the time that the narcotics went missing, to be drug tested. The tests were all returned negative. The Union filed a grievance against the testing of those employees who were bargaining unit members on the grounds that the Fire Department ordered the testing without reasonable suspicion of the people that the department sent to be tested.
The relevant part of the CBA—Article 24.8—states:
Regular, probationary and temporary employees shall be required to sign the consent to substance screen and submit urinalysis testing or blood alcohol level testing upon reasonable suspicion, as defined below:
Reasonable suspicion is defined as some basis for believing that a violation of the policy has occurred including, but not limited to: Thereafter, Article 34.8 lists six detailed “definitions” or ways for the City to determine if it has reasonable suspicion to require an employee to have a controlled substance test. The last of these definitions concludes: Any other reason to suspect that an employee has violated the provisions of the policy. (Emphasis added.)
The Union’s primary assertion was that arbitral authority and case law support the principle that reasonable suspicion should be individualized, thus the mass testing of bargaining unit employees was in violation of the CBA. However, the Arbitrator concluded:
The facts and circumstances [in this case] are not similar to the facts and circumstances in the cited awards and cases. The City was dealing with multiple “suspects.” Establishing individualized, particularized reasonable suspicion was impossible. Also, as was stated above, Article 34.8 does not require this standard. Moreover, it strains credulity to maintain that discovering several vials of powerful narcotics missing from two fire trucks at two fire stations on the same day does not satisfy the language of Article 34.8 which provides that “[r]easonable suspicion is defined as some basis for believing that a violation of the policy has occurred.” Common sense also supports the actions of the City.
The union also asserted the “mass testing” violated the constitutional rights of the employee and argument the arbitrator rejected:
The Union also asserted that the City had violated the constitutionally-guaranteed rights of its employees. Arbitration proceedings are not the place to adjudicate or even consider constitutional rights.
