BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF RACINE
LOCAL 67, AFSCME, AFL-CIO
CITY OF RACINE
LOCAL 67, AFSCME, AFL-CIO
Mr. John Maglio, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P. O. Box 624.
Racine, WI 53401-0624, appearing on behalf of the Union.
Mr. Guadalupe G. Villarreal, Deputy City Attorney, City of
Racine, City Hall, 730 Washington
Avenue, Racine, WI 53403, appearing on behalf of the City.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
According to the terms of the 1998-99 collective bargaining agreement between City
Racine (City) and Local 67, AFSCME, AFL-CIO (Union), the parties requested that the
Employment Relations Commission designate a member of its staff as arbitrator to resolve a
between them regarding the suspension and discharge of M.C. 1/ The Commission
Sharon A. Gallagher to hear and resolve the disputes. Mediation was initially scheduled for
2001, but was later canceled, although the parties met in an attempt to mediate the dispute.
in these cases was scheduled and held on August 9, 2001, at Racine, Wisconsin. A
transcript of the proceedings was made and received by August 23, 2001. The parties agreed
their initial briefs through the Arbitrator, which were postmarked November 7, 2001. They
agreed to reserve the right to file reply briefs which were to be received by November 21,
parties chose not to file reply briefs so that the record herein was closed on November 21,
1/ The Grievant's identity is being withheld
based upon the allegations herein.
For the first time at the hearing, the City raised the issue whether the five-day
issued Grievant M.C. was arbitrable. The Union resisted this issue. The parties jointly
bifurcate this issue, allow the Arbitrator to hear the evidence regarding the arbitrability issue
make a bench ruling regarding whether the grievance was arbitrable before reaching the
these cases. The Arbitrator heard all facts and arguments from the parties regarding
Thereafter, the Arbitrator ruled from the bench, stating all of her reasons on the record, that
grievance was arbitrable as it had been timely filed and processed.
The parties stipulated that the following substantive issues were properly before the
in these captioned cases:
1. Did the City have just cause to impose a five (5)-day
suspension on the Grievant on April 6,
1999? If not, what is the appropriate remedy?
2. Did the City have just cause to
terminate the Grievant on December 11, 2000? If not, what
is the appropriate remedy?
Management and Union Recognition
. . .
E. Management Rights. The City possesses the
sole right to operate City government and all
management rights repose in it, but such rights must be exercised consistently with the other
provisions of this contract and the past practices in the departments covered by the terms of
Agreement unless such past practices are modified by this Agreement, or by the City under
conferred upon it by this Agreement, or the work rules established by the City of Racine.
rights which are normally exercised by the various department heads include, but are not
1. To direct all operations of City
2. To hire, promote, transfer,
assign and retain employees in positions with the City and to
suspend, demote, discharge and take other disciplinary action against employees for just
3. To lay off employees due to
lack of work or funds in keeping with the seniority provisions
of the Agreement.
4. To maintain efficiency of City government
operations entrusted to it.
5. To introduce new or improved methods or
6. To change existing methods or facilities.
7. To contract out for goods or services, however,
there shall be no layoffs or reduction in hours
due to any contracting out of work.
8. To determine the methods, means and personnel
by which such operations are to be
9. To take whatever action which must be necessary
to carry out the functions of the City in
situations of emergency.
10. To take whatever action is necessary to comply
with State or Federal Law.
. . .
In addition to the Management Rights listed
above, the powers of authority which the City has
not officially abridged, delegated or modified by this Agreement are retained by the City.
recognizes the exclusive right of the City to establish reasonable work rules. The Union and
employees agree that they will not attempt to abridge these Management Rights and the City
that they will not use these Management Rights to interfere with rights established under this
Agreement or the existing past practices within the departments covered by this Agreement,
such past practices are modified by this Agreement, or by the City under rights conferred
upon it by
this Agreement, or the work rules established by the City of Racine. . . .
. . .
K. Discipline. The Union
shall be furnished with a copy of any written notice or reprimand,
suspension or discharge. The City agrees that it will correct shortcomings on the part of
employees in terms of their overall work performance. Discipline, therefore, is intended to
a corrective action on the part of the employee. A written reprimand sustained in the
Procedure or not contested shall be considered a valid warning. The Union agrees upon
the reprimand notice to review the situation with the employee in an attempt to correct the
When an employee's record is cleared of minor infringements for a year, all previous records
infringements shall be removed from his personnel file.
L. Discharge. Although
the City continues to exercise its sole discretion in determining when
it will discharge and employee (subject to the requirement of discharge for just cause), when
in its discretion, the City will advise both the Union and the individual employee that his job
jeopardy. Probationary and student employees are subject to discharge without recourse to
Grievance and Arbitration Procedures of this Agreement. Receipt of reprimands or
be deemed to served [sic] as such notice to the individual employee. Upon receipt of copies
notices, the Union agrees that it will meet with the individual employee in an attempt to
inadequate job performance.
When a grievance involves discharge, it shall be reduced to
writing and referred directly to a
special committee consisting of the Personnel Director, the Head of the Department
a member of the City Attorney's Office or the Labor Negotiator. Steps 1 through 2 would
in this type of case, and the decision of the special committee shall be subject to arbitration
provided in Section F of the present Grievance Procedure.
RELEVANT PROVISIONS OF
"DRUG AND ALCOHOL TESTING POLICY"
. . .
The City of Racine recognizes that the use
and/or abuse of alcohol or controlled substances by
drivers of commercial vehicles presents a serious threat to the safety and health of the driver
general public. It is the policy of the City of Racine that its employees who perform safety
functions should be free of alcohol and drugs. In order to further the City's goal of
alcohol-free and drug free transportation system, and to comply with the Omnibus
Employee Testing Act of 1991, the City of Racine has implemented a drug and alcohol
program which is designed to help reduce and avoid traffic accidents and injuries to our
and the general public, to discourage alcohol and substance abuse, and to reduce
accidents, health care costs, and other alcohol and drug-related problems.
The Department of Transportation (DOT)
and the Federal Highway Administration (FHWA)
have issued Federal Regulations (49 CFR Parts 40 and 382) implementing the provisions of
Federal Omnibus Transportation Employee Testing Act of 1991 which requires alcohol and
controlled substance testing of drivers who are required to have a commercial driver's
Regulations include detailed procedures for breath alcohol testing and urine drug testing of
in safety-sensitive positions. The purpose of this policy is to establish an alcohol and
substances testing program to help prevent accidents and injuries resulting from the misuse of
substances by drivers of commercial motor vehicles. Consequently, the City of Racine has
the following alcohol misuse and drug prevention program, as well as the subsequent
of violations, for its employees conducting safety-sensitive job functions (Employees should
to the City's "Drug Free Workplace Policy," which addresses the strict enforcement of
controlled substances and alcohol usage).
For the purposes of this policy, the City of
Racine and the DOT strictly prohibit the use of
alcohol and/or controlled substances by its employees and volunteers with Commercial
Licenses (CDLs) who are actually performing, ready to perform or immediately able to
ceasing to perform, the following safety-sensitive job functions:
1. Operation of a
2. Repair and maintenance of a
commercial motor vehicle that requires road testing the vehicle
on a public highway;
3. Supervisors and managers on stand-by to perform
a safety sensitive job.
City policy and federal regulations prohibit
employees from engaging in the following conduct:
dispensing, distributing, or receiving alcohol, intoxicants, illegal drugs or
other controlled substances on City premises, or while engaged in City business;
2. Reporting to work under the
influence of alcohol; intoxicants, illegal drugs, or other
controlled substances in their system;
3. Reporting to work under the influence of a
prescription drug, unless the employee's physician
determines that the use of the prescription drug will not adversely affect the
employee's ability to perform a safety-sensitive position. Note that the federal
regulations include prescription medications containing alcohol in the substances
banned from use in the workplace. Therefore, employees should not report for duty
while taking prescription medication if such medication contains any measurable
amount of alcohol;
4. Consuming any amount of alcohol, intoxicants,
illegal drugs, or other controlled substances
while on duty or within four (4) hours of reporting for duty; or
5. Refusing to undergo or cooperate in any required
alcohol or controlled substances testing
required by this policy.
6. Knowingly disregarding the
requirements of this
policy, or who is found to deliberately
misuse the policy in regard to subordinates as the City is dedicated to assuring a fair
and equitable application of this substance abuse policy.
7. Providing false information in connection with a
test, or who is suspected of falsifying test
results through tampering, contamination, adulteration, or substitution.
Any employee who violates any of the rules set forth above shall
be subject to discipline, up to
and including termination.
. . .
. . .
3. Random testing
This test is used in order to eliminate risks associated with illegal or
unauthorized drug and alcohol use. Random alcohol and drug testing will be conducted at
in which an employee is ready to perform or immediately available to perform, is actually
or has completed performing safety-sensitive duties. The employee shall be randomly
testing from a "pool" of employees subject to testing. The testing dates and times are
and will occur with unpredictable frequency throughout the year.
In accordance with federal requirements, the
minimum annual percentage rate for random alcohol
testing shall be 25 percent and the minimum annual percentage rate for random drug testing
50 percent of the average number of employees in safety-sensitive positions. For example, if
has 120 employees who are required to submit to testing, and DOT regulations specify that
testing will be performed at a rate of 50 percent, then 60 employees must be tested each
translates into 5 employees per month.
The City reserves the right to either
increase or decrease the minimum annual percentage rate for
random alcohol and drug testing based upon the reported violation rate for the entire
vehicle industry as determined by the Federal Highway Administration and the federal
implementing drug and alcohol testing in the transportation industry.
The selection of employees for random testing shall be
administered by an outside agency using
a scientifically valid method. This method will be a computer software-based random
program that is matched with employee social security numbers. A quarterly list of
numbers will be generated and forwarded to the Personnel Department in order that it may
the employee's supervisor for testing arrangements. Under this selection process, each
have an equal chance of being tested each time selections are made. As a result, some
be tested more
than once each year, while other employees
may not be tested at all.
In the event an employee tests positive for
either alcohol or controlled substances, the employee
shall be subject to disciplinary action up to and including discharge.
. . .
Return-to-Duty/Follow-Up Testing - This test is used to maintain
prevent relapse by employees during and after drug treatment. The City shall ensure that
before an employee returns to duty requiring the performance of a safety-sensitive job
after engaging in conduct prohibited in this policy, the driver shall undergo a return-to-duty
alcohol and/or controlled substance test with a result indicating an alcohol concentration of
than 0.02 percent and verified negative result for controlled substance use. In any event, an
employee shall not be allowed to return to duty without first having been evaluated by the
EAP provider in order to determine the employee's fitness for duty.
Following a determination that an
employee is in need of assistance in resolving problems
associated with alcohol misuse and/or use of controlled substances, the City shall ensure that
the employee is subject to unannounced follow-up alcohol and/or controlled substances
in consultation with a substance abuse professional. Consequently, the employee shall be
at least six (6) random tests during the 12 month period after returning to duty with the
possibility of follow-up testing for up to 60 months after the employee returns to duty.
. . .
The City will use a qualified provider to
perform alcohol and drug testing, which may be done
on both urine and breath. All drug and alcohol testing sha11 be conducted in conformance
the procedures and rules established by the Federal Omnibus Transportation Employee
Act of 1991 and its implementing regulations.
The qualified provider will handle taking the sample (in standard
collection kits) on a 24 hour
basis, utilizing different collection sites when necessary based on the time of day. The
provider will be responsible for ensuring proper transportation from the collection site(s) to a
Department of Health and Human Services (DHHS) certified laboratory. Specimen
not be done anywhere but at a City authorized collection site unless specifically authorized by
. . .
The City has established its anti-drug
program through its Drug Free Workplace Policy, which
strictly prohibits the unlawful manufacture, distribution, dispensing, possession or use of a
substance in the workplace. Furthermore, any abnormal conduct that may create a
suspicion that an employee is under the influence of a controlled substance is addressed in
"Reasonable Suspicion Testing" section described previously in this Policy.
For purposesof this
policy, the City will utilize, according to federal requirements, a 5-panel drug
screen consisting of the following drugs:
d) opiates (including heroin)
e) Phencyclidine (PCP)
The City reserves the right
to expand the
above list if additional drugs are required under federal
mandates, or to impose the reasonable suspicion standards of this policy.
Drug testing is conducted by analyzing an
employee's urine specimen (through a DHHS
certified testing lab). This procedure shall include the use of a split specimen testing
Each urine specimen is subdivided into two bottles labeled as a "primary" and a "split"
specimen. Both bottles will be sent to a certified lab. Only the "primary" specimen bottle is
opened and used for the urinalysis. The split specimen bottle remains sealed and is stored at
the lab. If
the analysis of the primary specimen confirms the presence of
illegal, controlled substances, the
employee has 72 hours from the time of notification of a positive test result to request the
specimen be retested at the same lab or be sent to another certified laboratory for analysis, at
the employee's expense. An employee who fails to notify the City within 72 hours after
receiving notice of a positive test result of his/her desire to have the split specimen tested
be deemed to have waived his/her right to seek testing of the split specimen.
In some cases the employee may be unable
to provide a urine specimen. After a reasonable
waiting period, the employee can be given up to 24 ounces of liquid and be allowed up to 2
hours to produce a suitable sample. If the employee is still unable to produce a urine
the MRO will send the employee to a doctor to determine why a sample cannot be produced
by the employee.
FOR DRUG TESTING
The following procedures summarize the
procedures established by the Federal Highway
Administration regulations implementing drug testing under the federal law. These
are subject to change in the event the FHWA or other government agency changes the
regulations on drug and alcohol testing of employees in safety-sensitive positions.
a) When the employee enters the
collection site, the employee will be required to provide positive photo
identification (i.e., driver's license).
b) The employee will be instructed to
provide at least 45 ml of urine under the split sample method of
collection. This will be done in a specifically designated "donor" bathroom.
c) The urine sample shall
bedivided into a primary specimen
(30ml) and a split specimen
d) If the test result of the primary
specimen is positive, the employee may, within 72 hours of notice of
a positive test result, request that the Medical Review Officer (a licensed physician employed
by the health service provider who is responsible for receiving and interpreting laboratory
results) direct that the split specimen be tested in the same or a different DHHS certified
laboratory for presence of the drug(s) for which a positive result was obtained in the test of
the primary specimen.
e) An employee shall be removed
from the safety-sensitive position pending the result of the test of the
f) If the result of the test of the split specimen fails to
reconfirm the presence of the drug(s) or drug
metabolite(s) found in the primary specimen, the MRO shall cancel the test.
g) Employees will be required to
complete and sign various forms used to document the testing and
chain of custody process. Refusal to sign the test form(s) shall be regarded as a refusal to
take the test.
h) Refusal by an employee to
complete and sign the test and chain of custody forms, to provide an
adequate amount of urine (to be decided on a case by case basis), or otherwise failure to
cooperate with the testing process in a way that prevents the completion of the test will be
considered grounds for disciplinary action, up to and including termination.
In the event of conflicting results between
the initial test and the confirmation test, the
confirmation test results will determine the outcome ofthe test.
2. RESULTS OF A
Any employee who tests positive for
controlled substances shall be subject to discipline, up to
and including termination. As with an alcohol misuse violation, the City is required to act
positive drug test result in the following manner:
a) Remove the employee from the
safety-sensitive position. This removal shall only take place after the
employee has been allowed to meet or speak with a Medical Review Officer (MRO) in order
to determine that the positive drug test did not result from the unauthorized use of a
b) Refer the employee to the City
EAP for assessment and subsequent compliance with recommended
rehabilitation after a determination of a drug problem has been made;
c) Employee must be evaluated by a
substance abuse professional or MRO and determined to be fit to
return to work prior to their release of the employee;
d) Employee must have a negative
result on a return-to-duty drug test. Follow-up testing to monitor
the employee's continued abstinence from drug use will be required.
. . .
MEMORANDUM OF UNDERSTANDING
It is hereby agreed by the undersigned
parties, the City of Racine (Employer) and the
AFSCME, AFL-CIO, Local 67 (Union), that the Employer's Drug and Alcohol Policy which
adopted by the Common council on December 20, 1994 and shall be enforced as a work rule
applicable members of the Union, is modified for this bargaining unit only as follows:
1.) The Employer shall not
discharge an employee for testing "positive" the first time under the
new policy unless a dischargeable offense occurs which is directly related to a positive drug
or alcohol test. The above sentence shall not apply to employees who have previously tested
positive while employed or as the result of a pre-employment physical examination. The
sentence shall also not apply to seasonal employees who test positive when being tested to
move into regular employment.
2.) The Employer shall pay for
the cost of the random testing but not the cost of the "split
sample" or subsequent testing unless the tests prove "negative".
3.) The Employer shall not pay
for the cost of "reasonable suspicion" testing unless such testing
4.) The Employer shall not test
an employee who posts from one safety-sensitive position to
another, but will test all employees posting from a non-safety sensitive position to a
5.) No employee shall suffer
any lost wages or benefits if the ultimate results rendered result in
a negative finding.
6.) The city recognizes the right
of the Union to grieve any and all disciplinary actions taken
subject to the just cause standard.
. . .
STIPULATIONS OF THE
Prior to the hearing in this case, the parties entered into the following stipulations of
which they agreed the Arbitrator could accept "as evidence and consider . . . in rendering a
on the merits of the cases. . . ." The stipulation of fact reads as follows:
. . .
1. M.C. (Grievant) was an employee of the City of
Racine (Employer) from August 19,
1996 to December 11, 2000.
2. The Grievant was employed
as a truck driver and required to possess a Commercial
Driver's License (CDL). (Exhibit A) 2/
3. The Employer has a Drug
and Alcohol Testing Policy (Policy) in effect for all CDL
holders. . . .
4. The Grievant was subject to
the Policy, together with corresponding Federal rules and
regulations and subject to the random drug and alcohol testing.
5. The Grievant was terminated
on December 11, 2000 as a result of a positive drug test
(Exhibit B) taken on November 29, 2000.
6. The Employer and Local 67,
AFSCME, AFL-CIO (Union) have an agreement that
recognizes the Employer's right to impose a five (5) day suspension for a first positive drug
7. The Grievant was sent to the
Substance Abuse Management Institute (SAMI) for a
random drug test on March 12, 1999.
8. On March 12, 1999 at 8:52
a.m., the Grievant submitted a urine sample for analysis
in accordance with the Department of Transportation's Workplace Drug Testing Program, as
provided in 49CFR, Part 40.
9. The Grievant's urine sample
was analyzed by SAMI through the services of
independent laboratories, Info-Meth Toxicology Laboratory and Northwest Toxicology
10. On March 13, 1 999,
Info-Meth Toxicology reported the urine as 'Specimen Not
Suitable for Analysis".
11. On March 26, 1999, the
Northwest Toxicology performed an analysis of the urine
sample and reported the urine as adulterated with anionic surfactant (soap).
12. On March 29, 1999, the
Medical Review Office (MRO), Dr. J. Jaworski, treated the
adulterated test results as a refusal to take the test on March 12, 1999.
13. On April 6, 1999, the Employer suspended the Grievant
for five (5) days as a result
of the adulterated urine sample submitted on March 12, 1999. (Exhibit C)
. . .
2/ Exhibits A, B and C are not quoted
On March 12, 1999, M.C. went for a random drug test to the City's collective agent,
Saints Medical Clinic. While at All Saints, and before he gave his urine sample, M.C.
following instructions regarding the collection of his sample and the procedures therefor:
SAMPLE DONOR INSTRUCTIONS FOR DOT
You have been designated to provide a urinalysis for drug testing.
The collection of your urine specimen will
be conducted under the procedures required by the
Mandatory Guidelines for Federal Workplace Drug Testing Programs. These procedures
individual privacy unless there is reason to believe that a particular individual may alter or
the specimen to be provided. The collection site person will take precautions to ensure that
specimen is not adulterated or diluted during the collection procedure. Your specimen
must also follow strict chain of custody and security procedures.
Photo identification (e.g.,
driver's license, agency badge) must be presented at the time of
collection or you must be identified by your supervisor.
You will be asked to remove
any unnecessary outer garments such a coat or jacket. All
personal belongings like purses or brief cas4es [sic] will remain with the outer garment,
may retain your wallet.
You will be instructed to
wash and dry your hands prior to providing a specimen.
Your specimen will be
provided in the privacy of a stall or otherwise partitioned area that
allows for privacy.
The collection site person
working with you and observing your sample if required will be of
the same gender as yourself.
After handing the specimen bottle to the collector,
you should keep the specimen in full view
at all times until it is sealed and labeled. This protects you against the wrong label being put
on your bottle or someone possibly tampering with your specimen.
If the collection site person
has reason to believe that you may have altered or substituted the
specimen, they will notify a higher level supervisor. Should you tamper, adulterate, or in
way attempt to dilute your sample, the collection site person will request authorization to
collect a second specimen under direct observation of a same gender collection
higher level supervisor shall review and concur in advance with any decision by a
collection site person to obtain a specimen under direct observation
by a same gender
collection site person.
You will be asked to initial
the identification label on the specimen bottle for the Purpose of
certifying that it came from you.
Your sample will be tested
for Cannabinoid (Marijuana), Cocaine, Amphetamines, Opiates,
and Phencyclidine (PCP).
If, after laboratory analysis,
the specimen is found to contain any drugs of abuse, the
results will be disclosed
only to your company's Medical Review Officer (MRO). prior to
making a final decision to verify a positive test result the MRO shall give you an opportunity
to discuss the test result and submit medical documentation of legally prescribed medications.
Records concerning you're
your [sic] collection and testing are covered under the privacy Act
5 U.S.C. 522a. Employee records shall be maintained and used with the highest regard for
Notes Any employee,
upon written request, has access to any records relating to his or her drug
tests. Results may only he disclosed without your written consent to those
designated by the DOT
M.C. stated herein, and the medical records confirm, that there
was nothing unusual (color,
temperature or odor) about the sample he offered to All Saints Medical personnel on
March 12, 1999
and the All Saints personnel did not then object to M.C.'s sample as having been tampered
adulterated. In addition, all safeguards were taken, per DOT regulations and City policy,
sample was properly labeled and sealed and sent to the first testing laboratory. 3/
3/ The Union did not object to or raise any
procedural questions regarding the collection of the sample or its
chain of custody.
The initial lab to test M.C.'s sample was Info-Meth Toxicology Laboratory which
that the urine was "not suitable for analysis." Dr. Jaworski, the Medical Review Officer
the City, who is employed by Substance Abuse Management Inc. (SAMI), stated herein that
findings of Info-Meth indicated to her that the sample must have been adulterated or
by M.C. Dr. Jaworski also stated that the collection agent (All Saints) may not be able to
at the time of collection that a sample has been adulterated if the sample has not changed
in temperature, color or odor. Because M.C.'s March 12, 1999 sample was not suitable for
Jaworski stated that the test for alcohol or other controlled substances could not be
Jaworski stated that under DOT regulations, this is a result which is treated the same as a
test or a positive result.
Jaworski stated that each donor must sign a certification that he/she has provided a
to the collection agency and that he/she did not adulterate that sample in any manner.
samples are sealed with tamper-evident seals in the donor's presence and the donor must
certify that the labels and seals on the specimens are correct. In addition, Jaworski stated
DOT regulations which existed in March, 1999, donors were not allowed to have the second
be "split sample" tested after an "adulterated" result was returned. Rather, at that time, the
regulations stated that only if the result was positive could a donor request and receive a split
test on the second sample to confirm or deny a positive result. Under DOT regulations,
stated, a positive or an adulterated result requires that the employee be found unfit for the
of safety-sensitive equipment so that a positive or adulterated result would be treated the
those purposes under DOT regulations.
Dr. Jaworski stated that on March 24, 1999, she talked to Grievant M.C. at
11:55 a.m. and asked him about any medications he might have been taking on March 12,
Jaworski stated that M.C. was not taking anything that could have caused interference with
test. At this point, Dr. Jaworski decided to send M.C.'s sample to Northwest Toxicology
determine why Info-Meth had determined the sample was unsuitable and could not be tested.
Northwest Toxicology Laboratory (NTL) tested M.C.'s specimen and found it "unsuitable"
as it gave
ultra-negative results. Dr. Jaworski stated that this result meant that the sample had been
which interfered with the ability of the test to find whether or not there were any controlled
substances in M.C.'s urine. NTL further found that the adulterant used was soap, known as
Dr. Jaworski stated that soap would have had to be added by M.C. as he was the
who had possession of the donor container prior to its having been sealed by All Saints
personnel. In response to cross-examination questions from the Union, Jaworski stated that
should be no residual soap that could wash into the urine cup even if the donor splashed his
with his own urine. This is true, because the donor must wash his hands before he gives his
sample and that this is done in a separate area from the place where the donor produces the
sample. Dr. Jaworski also stated that "peeing on your finger is a willful act." Therefore,
issued the results of M.C.'s test as "adulterated, test not performed."
Jaworski stated that in her conversation with him, M.C. never requested that the split
be tested; that M.C. never admitted adulterating the sample; that it is not illegal to adulterate
under Federal law but that it may be under State law. 4/ Jaworski also stated that had M.C.
for a split sample test she would have told him that under DOT regulations in effect at that
was not entitled to this based on an adulterated result. Jaworski stated that had M.C. asked
for a split
sample test, she would have written this in her file notes and that she would have told the
City of his
request even though such a request would not have been allowed under the then-effective
regulations. Dr. Jaworski said she had no such file notes regarding M.C.
4/ There is no evidence in this record to show
whether such adulteration would violate Wisconsin law.
M.C. stated herein that he had difficulty reaching Dr. Jaworski after she called him
and left a call back message regarding the results of his test. M.C. also asserted that he
working on safety-sensitive equipment after Jaworski called him because he could not reach
day. Shortly thereafter, he had a conversation with Jaworski in which M.C. claimed that
told him that his urine had been sent to another facility and that it was suspected to have
adulterated. M.C. asserted that he asked for a split sample test and stated on direct
Dr. Jaworski said that his sample was no longer available -- that it had been sent to another
From this, M.C. concluded that his sample had already been tested without his consent. On
cross-examination, M.C. stated that Jaworski told him that a split sample was not available
and that she said
that "they" would not allow M.C. to split the sample. M.C. admitted he never asked to pay
for a split
sample test on the sample given on March 12, 1999. After his five-day suspension, M.C.
to the City Employee Assistance Program (EAP) and to a substance abuse professional for
After his suspension, he tested negative and returned to work.
The City's drug and alcohol policy agent, Terry Parker, stated that Dr. Jaworski
talked to him
after she had spoken to M.C. in March, 1999, indicating that M.C.'s March 12, 1999
sample had been
adulterated. Parker stated that Dr. Jaworski never called him to say that M.C. had requested
sample test and that normally Dr. Jaworski would have called the City to indicate that
M.C. had asked
for a split sample test, even in the case where he was not entitled to such a test. After
Dr. Jaworski, Parker stated that he called Department Head Joe Golden and told Golden to
off any safety-sensitive equipment and tell him to call the City EAP immediately.
Parker stated that it is the City's past practice on a first positive test for drugs or
suspend employees for five days and that on a second positive test thereafter, the employee is
terminated. Parker stated that the City treated M.C.'s adulterated test result the same as a
result based on the City's policy. Parker affirmed that under the City's policy and Federal
effective in March, 1999, an employee would only get a split sample test if the employee
positive for drugs or alcohol, not for an adulterated result.
On November 20, 2000, M.C. had a follow-up drug and alcohol urine test. M.C.
another urine sample at All Saints Medical Clinic which came back positive for cocaine. 5/
requested a split sample test, which was done and he failed the test on the split sample as
December 11, 2000, M.C. was terminated by the City. 6/
5/ M.C. stated herein that he had not taken
illegal drugs prior to his random drug/alcohol test on March 12,
1999, but that after his suspension he had done so.
6/ The Union has not
objected to any of the procedures used regarding M.C.'s second test (November 22,
which resulted in his testing positive twice for cocaine.
POSITIONS OF THE PARTIES
The City asserted that its Drug and Alcohol Testing Policy (DATP) was implemented
mirror the Federal regulations and that the DATP is "subject to change" in the event the
government mandates changes. The City also noted that under Federal regulations, the
Review Officer (MRO) has the authority to send a urine sample to a different certified
the first test at the first certified laboratory showed the test had been interfered with, to
whether the test sample had been adulterated.
In this case, the City argued that M.C.'s assertion that he asked the MRO for a split
test is contrary to all other evidence and logic on this point. Here, the City noted that the
notes contained no reference to such a request, although her notes were extremely detailed;
City was never notified of a request for a split sample test by the MRO (which is normally
M.C.'s case; that the MRO would have denied the request in any event as a split sample test
available for an adulterated result under the Federal regulations that were in effect in March,
In addition, in 1999, all split samples had to be kept for one year by the laboratory under
regulations and it would not have been tested unless the first sample tested positive for drugs.
the City urged that the Grievant's testimony was not credible. In any event, even assuming
Grievant's story is true -- that the MRO told him his split sample was unavailable because it
tested by another lab -- this would mean that M.C. actually received a split sample test
(which he was
not entitled to) which showed that the split sample was also adulterated with soap.
The City noted that the parties stipulated to a set of facts which must be accepted by
Arbitrator as true in this case. Among these was the fact the Grievant's urine sample was
analyzed in accordance with all of the regulations as contained in 49CFR Part 40. In
hypothetical put by the Union to the MRO during her testimony (that the Grievant may have
on his fingers and that he may have peed on his fingers, thus adulterating the sample with
not confirmed or stated by the Grievant under oath in this case.
Because soap is not a naturally found component of urine, the MRO treated M.C.'s
adulterated, which under Federal regulations is the equivalent of a refusal to test or a positive
In turn, the City accepted the MRO's determination that the test was adulterated and
refusal to test and treated that as a violation of its policy, which provides that a refusal to test
be treated the same as a positive test result which will then result in discipline of the
employee on a
first violation of the policy with a five-day suspension.
It is the City's position that it had no alternative but to treat M.C.'s adulterated urine
the same as a refusal to test, which is also the same as a positive result, as employees could
adulterate their urine or refuse to give a sample if the policy were not read in this fashion.
the City urged that the evidence demonstrated that the urine sample provided by the Grievant
March 12, 1999, was adulterated and the City therefore had good cause to impose a five-day
suspension for this violation of its DATP. As the Grievant's termination resulted from his
29, 2000, follow-up drug test which resulted in a positive test result for cocaine, the City
it had just cause to discharge the Grievant's employment for this second violation of the
DATP. Therefore, the City requested that both grievances be denied and dismissed in its
The Union asserted that M.C. requested a split sample test be done on his March 12,
sample under the City's Policy and that he was entitled to such a split sample test upon
whether the test results were positive or adulterated, pursuant to the City's DATP. The
that City Manager Parker admitted that an adulterated result is to be treated the same as a
result. Nothing in the policy limits an employee's access to a split sample test, in the
Also, Federal regulations do not specifically deny employees the right to a split sample test
result is an adulterated sample and the Federal regulations do not mandate discipline.
regulations only require that an employee be removed from operating safety-sensitive
there is a positive test result.
The Union pointed out that in January, 2001, the Federal government began
split sample tests be allowed at an employee's request where the result was an adulterated
This change in the Federal regulations was made "because problems were discovered in the
(Union Exhibit 1) which showed that 300 tests had been canceled. Because M.C. was denied
sample test in March, 1999, the City did not have just cause to suspend him for an
test result. Therefore, the Union sought an award making M.C. whole and expunging his
As the suspension could not stand under the Union's analysis, the Union urged that
discharge must be reversed because a five-day suspension is the appropriate penalty (under
DATP) for a first violation thereof. Therefore, a five-day suspension must be substituted for
discharge given M.C. on December 11, 2000, due to M.C.'s positive drug test result on his
November, 2000, test. In addition, the Union sought an award making M.C. whole (except
five-day suspension) and an order expunging his work record of the discharge.
The Union's main argument in this case is that the because M.C. was denied a split
test following his March 12, 1999, test, the City's discipline of M.C. for this adulterated
be disregarded. Based upon this record, I need not determine whether M.C., in fact,
requested a split
sample test of his March 12, 1999, sample for the following reasons.
A close analysis of the City's DATP shows that this policy is the City's attempt to
with the Omnibus Transportation Employee Testing Act of 1999, which is implemented by
Department of Transportation through 49CFR Parts 40 and 382. The record evidence
as of March 12, 1999, there was no requirement that those receiving an adulterated test
be given a split sample test if one were requested. This was confirmed by Dr. Jaworski, the
MRO, as well as the Federal Register documents placed in the record by the City and the
Indeed, there was no evidence to affirmatively show that if an adulterated result occurred,
employee tested was entitled to request a split sample test under the DATP or the Federal
as they existed in March, 1999. Rather, the City's DATP clearly states that a split sample
be provided only when a positive result occurs. The Union cannot bootstrap the fact that an
adulterated test result is treated as a refusal to test which is then treated as a positive result in
areas of the DATP and/or Federal regulations to gain access to a split sample test on an
The Union argued that because 49CFR Parts 40 and 382 were changed after March,
to provide for split sample tests on adulterated samples, this means, that in fairness such a
have been provided to M.C. I disagree. It is clear that the City's DATP was specifically
to comply with the Omnibus Transportation Employee Testing Act of 1999 as implemented
DOT through 49CFR Parts 40 and 382. The fact that an adulterated result is punishable
DATP as if it were a positive result (DATP, Part IV, Sub. 7), really appears to have been
as a fail-safe mechanism so that employees will not adulterate their samples with impunity.
Here, the facts showed that the adulterant used was soap. Although the Union asked
Jaworski several hypothetical questions involving a test subject who washes his hands, allows
to remain on his fingers, and then urinates on his fingers, mistakenly washing soap into the
cup, I note that the Union never asked M.C. to confirm that this is, in fact, what occurred
his March 12, 1999 sample. The facts showed that M.C. was the most likely person to have
ability to adulterate his urine sample on March 12, 1999, as he was the only person who was
in the stall when the sample was given. The fact that All Saints personnel did not detect any
in the temperature, odor or color of M.C.'s urine sample does not mean that M.C. could not
adulterated it while producing it alone in the bathroom stall. Indeed, I note that whether a
is adulterated intentionally or accidentally does not change the fact that being suspected of
adulteration is cause for discipline under Part IV of the DATP.
In addition, I note that the Union submitted no evidence to show there was anything
with the procedures used by All Saints collection personnel on March 12, 1999. Also, M.C.
a certification after producing his sample that the sample was his, and that he had not
M.C. then gave this certification to All Saints personnel before he left the testing facility. In
all of the
circumstances of this case, it is reasonable to conclude that M.C. was in fact the person who
adulterated his urine sample on March 12, 1999, and that there is no other likely explanation
As such, M.C. violated the DATP and was subject to a five-day suspension for adulterating
sample, pursuant to Part IV, Sub. 7, of the DATP.
M.C. was employed by the City from August 19, 1996 until his discharge. After
five-day suspension 7/ due to the adulterated result on his March 12, 1999 test, M.C.
work and had no problems until he took a follow-up drug test on November 29, 2000,
his urine was positive for cocaine. M.C. requested and received a split sample test on his
29, 2000 sample, which came back positive again for cocaine. M.C. was then discharged on
December 11, 2000. I have not found any irregularities concerning the March 12, 1999 test,
ruled that M.C.'s five-day suspension therefor must stand. As a consequence, and given the
no irregularities occurred regarding M.C.'s November 29, 2000 test, his discharge for testing
for cocaine on that test must also stand. Therefore, I issue the following
7/ The record evidence was undisputed that
the City has imposed a five-day suspension for a first violation
of the DATP and that it then discharges the employee for an second violation. The Union
raised no objections to
the use of this approach herein except as noted above.
The City had just cause to impose a five-day suspension on the Grievant on April 6,
The City also had just cause to terminate the Grievant on December 11, 2000. The
therefore denied and dismissed entirely.
Dated in Oshkosh, Wisconsin, this 7th day of January, 2002.
Sharon A. Gallagher, Arbitrator