By Jim Cline
Occasionally, an arbitration decision calls out for a bit more explanation and the Arbitrator’s Ruling allowing the Ocala Fire Department to “Mass Test” its Firefighters is one such decision. As described in our recent case note on the decision, the arbitrator found that the reasonable suspicion language in the CBA allowed the City to undertake a “mass test” all firefighters with any type of access to fire trucks from which narcotics had gone missing.
The arbitrator rejected the union’s argument that “reasonable suspicion” requires individualized suspicion. Normally individualized suspicion would be the requirement but in on a “reasonable suspicion” standard, but rather than simply leaving the term “reasonable suspicion” to stand on its own, the parties further defined and refined by what it meant by “reasonable suspicion.” Pertinent to this case, the parties CBA included one of the definitions that “an employee has violated the provisions of the policy.” The arbitrator identified that language as authorizing the City to mass test reasoning that because some violation of policy probably had occurred, a test of all potential violators were subject to being tested even where no evidence tied them to the violation.
Had the union let the term stand on its own without further refinement, it seems more likely that the term as established in court cases, which clearly does require individualized suspicion, would have prevailed. One of the lessons from a case like this is that you have to be very careful in negotiating language in which you further define what is recognized as a “term of art,” or otherwise well-defined in case law. When you seek to redefine what already is well-defined elsewhere, you run the risk of changing or narrowing what that term means. That’s exactly what happened in this Ocala Fire Department drug testing decision to the union’s detriment.
For example, sometimes in negotiations, either management or members of the union bargaining team want to further clarify or define terms like “just cause.” I usually recommend resisting such efforts because in seeking to further define what is already a well-defined “term of art” you only run the risk of narrowing the term, giving up rights you would already have, had you just left it alone. While some seek labor contracts that lay out all the terms elaborately and in detail, often the general term will prove to work much better not just for the union side but for both sides. Over-definition can lead to unanticipated results.
Another statement from the arbitrator also warrants a comment – that arbitration is “not the place to adjudicate or even consider constitutional rights.” His point was probably well taken in the context of the issue in front of him, but this would not be an accurate statement of the general rule. It is true that in this case, the arbitrator was called upon here to interpret what the CBA, not what the constitution permitted. A valid counter argument in this case, though, and what it seems the union was seemingly trying to argue, was that the parties had intended to adopt constitutional principles by reference when they wrote the “reasonable suspicion” standard into the CBA and, they argued, the arbitrator should interpret the meaning of that language in the context of the constitutional case law. That would have been a good argument but, again, by expressly defining the term seemingly more narrow than the term was defined in that case law, the arbitrator felt required to focus solely on the express terms adopted by the parties themselves. Arbitrators often believe they are obligated to enforce the language the parties themselves adopted, not what one side or the other subjectively believed they had adopted.
Also, as I said, the arbitrator’s statement that constitutional rights are not considered in arbitration is only valid in the narrow context of this type of case. Certainly principles of just cause, as one example have been found by other arbitrators to incorporate by reference, the requirement that employee’s constitutional rights not be violated. So, that statement seems overbroad, but makes sense in the context he expressed it.
Certainly one can understand why the employer wanted to test in this. Missing narcotics is a serious matter. But constitutional rights are serious too. Rounding up all the firefighters and forcing them to submit to a test would ordinarily require more than some belief that someone might have been involved without any evidence against a particular individual seems a stretch of the reasonable suspicion standard. The arbitrator found that conducting the mass test to simply be “common sense” but the union was predictably offended by the “mass testing” of so many of its many members. Difficult circumstances sometimes present a challenge to the rights you think you have established in the CBA, or as lawyers like to say sometimes “bad facts can make bad law.”
