This is an abstract post.

[skippy]

YYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYVVV VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV VVVVVVVVVVVVVVVV

THE CONSTITUTION is the instrument by which the federal government was created. The intent was that the government be severely limited in its authority. Grants of power were few and specific. Yet virtually nothing is now ruled unconstitutional in the courts! -- unless it is "politically incorrect."

And so it has been since 1937.

Sad I'm sittin' on the railroad track,
Watchin' that old smokestack.
Train is a-leavin' bit it won't be back.

Years ago we hung around,
Watchin' trains roll through the town.
Now that train is a-graveyard bound.

Where we go up in that North Country,
Lakes and streams and mines so free,
I had no better friend than he.

Something happened to him that day,
I thought I heard a stranger say,
I hung my head and stole away.

A diesel truck was rollin' slow,
Pullin' down a heavy load.
It left him on a Utah road.

They carried him back to his home town,
His mother cried, his sister moaned,
Listin' to them church bells tone.



99999999999999999999999999999999999999999999999999 99999999999999999999999999999999999999999999999999 9999bbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbbb9=<>

[Mayfuck]

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[Mayfuck]

This is
is
an
abstarct reply.

[Cactuar]

You stole my idea Mayfuck.

[Mayfuck]

Me and Mark LeDrew are taking Netphoria to strange new worlds with our avant garde style messageboard posting.

[Mayfuck]

Mark LeDrew and myself at an uber hip cafe in Vienna just a few weeks ago:

http://garnet.acns.fsu.edu/~wbw8093/beatniks.jpg

[skippy]

It is 12:20 in New York a Friday
three days after Bastille day, yes
it is 1959 and I go get a shoeshine
because I will get off the 4:19 in Easthampton
at 7:15 and then go straight to dinner
and I don't know the people who will feed me

I walk up the muggy street beginning to sun
and have a hamburger and a malted and buy
an ugly NEW WORLD WRITING to see what the poets
in Ghana are doing these days
in Ghana are doing these days I go on to the bank
and Miss Stillwagon (first name Linda I once heard)
doesn't even look up my balance for once in her life
and in the GOLDEN GRIFFIN I get a little Verlaine
for Patsy with drawings by Bonnard although I do
think of Hesiod, trans. Richmond Lattimore or
Brendan Behan's new play or Le Balcon or Les Nègres
of Genet, but I don't, I stick with Verlaine
after practically going to sleep with quandariness

and for Mike I just stroll into the PARK LANE
Liquor Store and ask for a bottle of Strega and
then I go back where I came from to 6th Avenue
and the tobacconist in the Ziegfeld Theatre and
casually ask for a carton of Gauloises and a carton
of Picayunes, and a NEW YORK POST with her face on it

and I am sweating a lot by now and thinking of
leaning on the john door in the 5 SPOT
while she whispered a song along the keyboard
to Mal Waldron and everyone and I stopped breathing



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[Squashing Pineapples]

Originally posted by Mayfuck
This is
is
an
abstarct reply.

PART III SUBSTANTIVE ISSUES IN ARBITRATION

Chapter 18: Drug and Alcohol Issues



1-18 Labor And Employment Arbitration § 18.08

§ 18.08 Employee Testing



[1] Overview

The employer's right--and sometimes duty--to maintain a safe, productive workplace is generally recognized by arbitrators.1 However, arbitrators also recognize limitations on the rights of employers to regulate the off-duty conduct of employees2 and further recognize the privacy interests of employees.3 Employer programs to regulate drugs at the workplace through testing of employees brings employer and employee interests into conflict, since both the action of taking a sample and the analysis of a sample invade the privacy of the person tested and may reveal information about the employee's off-duty conduct.

The Supreme Court addressed the balance between public welfare and employees' constitutional privacy rights in the heavily regulated railroad industry and in the public sector in two 1989 decisions. In Skinner v. Railway Executives' Association ,4 the Court found that drug testing of urine after an accident constituted a search under the Fourth Amendment and impinged on constitutional privacy rights. The Court nonetheless ruled that testing after an accident without individualized suspicion was not an unreasonable infringement on constitutional rights. The Court reasoned that employees working in the heavily regulated railroad industry had a reduced expectation of privacy, and that the governmental interest in ensuring the safety of the traveling public outweighed the employees' right to privacy. In National Treasury Employees Union v. Von Raab ,5 the Court upheld the Treasury Department's right to test employees seeking promotion to ''sensitive jobs,'' such as jobs involving the interdiction of drugs.

Few commentators or arbitrators have indicated willingness to embrace drug testing unconditionally or to condemn and reject it in all circumstances.6 Instead, arbitrators have considered drug testing on a case by case basis in the context of the particular disciplinary proceeding.7 Factors considered by arbitrators in reviewing drug testing in the context of individual disciplinary actions8 *******: (1) the categories of employees tested, (2) the determination or event giving rise to the test, (3) the gathering, custody, and preservation of the sample, (4) the testing methodology utilized, including the substance or substances to be tested for and the tests utilized, and (5) the interpretation of test results. In the materials that follow, each is discussed in turn.

[2] Who Is to Be Tested?

Not all employees hold equally sensitive jobs, and not all workplaces are equally subject to drug-caused problems. Some arbitrators have allowed employers to test all employees (or all employees in a certain status, e.g., those undergoing periodic physical examinations or returning from extended sick leave) without special showing of the sensitivity of positions those employees hold.9 Some have even indicated that such universal testing was preferable to singling out employees or categories of employees.10 Other arbitrators, however, have required employers to justify testing classes of employees on the basis of the sensitivity of their jobs.11 The requisite sensitivity has been demonstrated by showing that employees work with hazardous equipment,12 that the work involves danger to the public or other employees,13 that employees have contact with customers14 or where employers are under the scrutiny of regulatory agencies.15 Some arbitrators have rejected as overbroad testing of employees for whom no such special sensitivity is demonstrated. In Bay Area Rapid Transit ,16 the arbitrator found unreasonable a testing procedure that covered bargaining unit members where the employer based the testing on safety concerns, but not all bargaining unit members performed work bearing upon safety, while some management employees did perform such work. However, in LNP Corporation ,17 the arbitrator rejected the argument that testing bargaining unit employees but not managers was unfair. The arbitrator noted that his jurisdiction did not extend to persons outside the bargaining unit.

Testing of probationary employees has been upheld on the basis that they are not protected by the just cause or progressive discipline provisions of the contract,18 or that they are not entitled to access to the grievance procedure, or that the employer is entitled to subject them to greater scrutiny than employees who have passed that period.

Arbitrators have frequently recognized the scope of the drug problem in society and have sometimes appeared to rely on such general information to justify employer drug testing programs.19 Others have cited prior problems in a particular workplace as support for drug testing,20 although unsubstantiated assertions of such problems have been held insufficient.21 However, some arbitrators have held mere generalized statements about societal drug problems insufficient to support particularized testing in the absence of an indication of problems in the particular workplace22 or a demonstration that other methods of detection and prevention were insufficient to control the problems.23

[3] What Is the Trigger for the Test?

The testing of an employee may be the result of a policy of random testing or universal testing, in which the employer's particularized suspicion of the employee tested is not a factor, or it may be due to some action (e.g., unusual conduct or performance on the part of the employee) or event (e.g., an accident or injury) that gives the employer some reason to suspect use of drugs. Each cause requires different justification and analysis.

Arbitrators have, in general, been unreceptive to universal or random drug testing of employees in the absence of some special circumstances, and have overturned discipline based on tests required under such programs.24 Testing of all employees has been upheld when employees were engaged in duties directly affecting the public safety, such as nuclear power plant operators,25 airline pilots, truck drivers,26 and oil refinery workers.27 However, arbitrators have overturned random testing programs for workers in a chemical plant,28 telephone company employees, and employees producing ammunition.29 In Potomac Electric Power Co. ,30 Arbitrator Nicholas Zumas summarized what appears to be the emerging consensus view:

[W]hen such [off duty] activities ... pose a potential threat to the safety of other workers, the public, and the legitimate interests of the employer, such employer may, consistent with the collective bargaining agreement and reasonable rules and practices, take steps to reduce such threat ... such steps must be reasonable, are based on a legitimate need, and take into account the procedural and substantive workplace safeguards to which employees are entitled. ...

Arbitral opposition to random testing is not universal. For example, in Thomas Steel Strip Corp. ,31 an employee was discharged for a positive Enzyme Multiplied Immunoassay Technique Test (EMIT) for marijuana during a six-month probationary period following a previous offense. In Birmingham-Jefferson County Transit Authority ,32 the arbitrator upheld a rule requiring a drug test as part of an annual physical examination and found that no probable cause was required.

The emerging majority view among arbitrators appears, however, to be that employers must have some particularized cause to test an employee. The requisite cause has been variously described by arbitrators as ''probable cause,''33 ''sufficient provocation,''34 and ''reasonable suspicion.''35 The standard is somewhat loosely applied and is frequently described as having been met on the basis of the ''totality of circumstances'' of the given case.36 At law, the quoted terms have distinct meanings. ''Reasonable suspicion'' is a lower standard; ''probable cause'' is a higher standard, from criminal law, and is infrequently used by arbitrators. However, those legal distinctions are not always reflected in their use by arbitrators. It is apparent that the cause required has ranged from a very low and generalized standard, as in Potomac Electric Power Co. ,37 in which the arbitrator held the threat to the safety of workers, the public, and the employer's interests constituted sufficient cause to test, to a very high, specific standard, as in Georgia Power Co. ,38 in which the arbitrator held the employer to be justified in testing a lineman employed by a nuclear generating facility who deliberately violated a safety procedure without explanation, abused his foreman, was absent from work without notice, and had a history of drug abuse.

Other employer programs test employees who are involved in an accident or operating incident. Although post-accident testing may be regarded as involving a particular case of probable cause, it must be remembered that accidents may have many innocent causes. In general, however, arbitrators have recognized such triggering events as constituting sufficient cause to test, based on the relationship between the triggering event and workplace safety,39 although arbitrators have also pointed out the requirement that a rational relationship must exist between the incident triggering the test and the possibility of drug use as a factor.40 A lower standard has been allowed where lay observation is used, not to prove impairment, but to establish cause to subject the employee to testing.41

Testing of all employees who return from medical or other leaves raises different questions. Some arbitrators have found such testing unreasonable because it is aimed at off-duty rather than on-the-job use.42

[4] Chain of Custody; Integrity and Preservation of the Sample

When employers introduce test results to prove drug and alcohol offenses, arbitrators require demonstration that the sample tested (and, indeed, any real evidence, such as beverage containers and the contents thereof, drugs or drug paraphernalia, that is offered into evidence in arbitration) is that given by the employee and that it was maintained, without opportunity for tampering, during the time between when it was given and when it was tested. The purpose of such a requirement is to preclude switching, altering or adulterating the sample. At criminal law, that concept is termed ''chain of custody.'' Strict chain-of-custody procedures require that a sample be taken, identified, sealed (and properly marked), maintained, and transmitted in such a way that its whereabouts and security can be accounted for at all times and at each step in the testing process. Since the chemical content of samples may be affected by temperature changes and time, chain-of-custody requirements may ******* refrigeration and limits on how much time may elapse between taking the sample and conducting the test.

While arbitrators have sought satisfaction that specimens are those of the grievant and that no tampering has taken place, they have required differing degrees of compliance with technical chain-of-custody requirements.43 In Washington Metropolitan Area Transit Authority ,44 the arbitrator noted, in upholding a discharge based on post-accident testing, that care was taken in maintaining the integrity and preservation of the samples; while, in Molliston Mills ,45 the arbitrator overturned discipline where a sample had been left in the outgoing mail for a period of several hours, making tampering possible. Arbitrators have overturned discipline based on the employer's failure to follow custody procedures negotiated with the union.46

However, other arbitrators have overlooked technical deficiencies in the chain of custody47 and have indicated that absolute compliance with chain-of-custody procedures will not be required where it would make the employer's program ''impossible to carry out.''48 One arbitrator rejected application of a chain-of-custody requirement where the hospital's standard procedures were followed in conducting a blood test, the arbitrator asserting that ''only in criminal cases need a complete chain of custody be established.''49 However, the trend in more recent cases, fueled perhaps by stories of quality and procedural problems in drug testing, would appear to be to require a higher standard of diligence and technical compliance by both employers and testing facilities.50

Arbitrators may require that employers preserve samples and make them available to conduct their own independent tests; however, one arbitrator failed to assume prejudice from delay in the issuance of test results in a case in which the sample was destroyed.51

[5] Testing Methodologies

[a] An Introduction to Drug Testing.

Drug testing and its methodology are complex areas in their own right, far beyond the scope of this chapter. Fortunately, orientation materials are available from a variety of sources.52 This section attempts briefly to supplement those basic materials.

Marijuana, cocaine, heroin, PCP, amphetamines and barbiturates are the usual psychoactive drugs tested for by employers. Reasonably simple and inexpensive tests are available to screen samples for the presence of chemicals that indicate past use of specific drugs. The so-called screening tests, such as the Enzyme Multiplied Immunoassay Technique Test (EMIT), produce a result that is either ''positive'' or ''negative'' for one or more specific, identified substances, at a concentration at or above a predetermined level, which is ordinarily set by the employer.53 Screening tests are generally reliable--EMIT, for example, has claimed 95% reliability--but are subject to both human and technological limitations, some of which are serious. Indeed, even a 95% reliability means that one in twenty persons tested will not receive a correct test result. Reliability is itself a term of art in drug testing; inaccuracies in testing may encompass false positives, false negatives, and cross sensitivity to related (but possibly legal and harmless) drugs.

Gas chromatographic/mass spectrographic (''GC/MS'') analysis, which is a more expensive and complicated procedure, provides precise confirmation of the drug used and identifies the level of the drug in question and its metabolites in the sample. The preferred and generally used testing methodology is to perform a screening test on the urine sample and to confirm any positive screen results through GC/MS.

The Department of Health and Human Services, in its Drug Testing Guidelines,54 selected GC/MS as the required confirmatory test for federal employee drug testing programs. These guidelines have been adopted, for most purposes, including use of GC/MS, in the various Department of Transportation regulations55 and have been adopted as the de facto standard in the drug testing industry. Positive GC/MS test results have virtually always been held sufficient to establish drug use.56 Conversely, the absence of such a confirming test result has been held a factor in overturning discipline.57

[b] What Substances Are to Be Tested For?

There are approximately 80 substances recognized by the National Institute on Drug Abuse as being subject to abuse and over 300 substances recognized by the National Collegiate Athletic Association.58 Although the presence of virtually any chemical can be detected through the use of gas chromatograph/mass spectrograph (''GC/MS'') and specialized laboratory procedures exist to test for some other drugs, commercially available drug screening tests are able to test for only a small number of drugs; and the cost of such tests is based, in part, on the number of substances for which analysis is conducted. Therefore, many other drugs that may produce impairment are not detected through employer drug screening programs.

[c] Testing for Alcohol.

Alcohol is generally tested for by analysis of blood samples or breath to determine the amount of alcohol in the bloodstream. The results are expressed as a percentage, termed blood alcohol content (''BAC''). The testing procedures utilized are ordinarily separate from those for drugs, although some commercial tests may combine detection of drugs and alcohol.59

[d] Testing for Illicit Drugs.

There are limitations in urine testing technology. Inaccurate test results may be produced by defects in the testing procedure or by various ''lookalike'' chemicals (newer tests appear to be less subject to such problems, although debate continues), many of which are neither illegal nor psychoactive. Even the most reliable test cannot correct defects in the manner in which the sample is obtained and its evidentiary integrity maintained.

Even accurate test results indicate little more than that an employee used the drug at issue at some time in the past; chemical residue from the use of some drugs remains in the system and is excreted in urine several days--or even several weeks--subsequent to the time of use.60 Employers have a strong interest in prohibiting employees from working while impaired by drugs. However, test results reveal any use of a drug tested for, including use off-duty and away from the work place, thereby stretching or breaking the nexus between conduct and work that is generally required in order to allow an employer to regulate off-duty conduct. Some arbitrators have found a nexus, even where it is acknowledged that the time of use cannot be determined, by relying on expert testimony that positive test results indicated a potential for ''flashback deranging effects.''61 Neither are test results sufficient to correlate private, off-duty drug use and work performance. At present, no consensus within the medical/research community about impairment can be inferred from a positive urine drug test, even when a specific level of drug or drug metabolites is present. Blood tests bring the test results closer in time and physical proximity to the point of psychoactivity in the brain and nervous system. Some researchers argue that blood test results make possible a determination of impairment; others are not convinced. Furthermore, no single drug test can be used to establish a pattern of drug use. While blood tests may narrow the time window within which drug use occurred, blood sampling and testing constitutes an even more intrusive medical procedure and is, at the present time, more complicated and expensive than urine testing. Blood testing is done less frequently by employers.

New proprietary tests, improvements on existing tests and new testing techniques can be expected. Evaluation of such tests by arbitrators can be expected to depend on the general scientific acceptability of the tests and freedom of the tests from errors, including false positives, cross-sensitivity to other, related drugs, and susceptibility to operator error. Arbitrators seldom engage in analysis of drug testing methodology. However, in Burlington Northern Railroad ,62 the Public Law Board concluded that a positive EMIT test, confirmed by Thin Layer Chromotography (''TLC''), was sufficient to demonstrate prior use of marijuana, but insufficient in the absence of objective manifestation of impairment on the part of the employee to demonstrate that he was ''under the influence.'' On the other hand, in another case involving the same railroad, another Board held, without opportunity to review scientific evidence, that a positive test was sufficient to demonstrate impairment.63 The acceptability of the testing methodology at issue in those cases would now be determined by reference to the Department of Transportation Regulations.

[6] Test Results: Interpretation and Use

[a] Alcohol Test Results.

Arbitrators have accepted the most commonly used tests for alcohol consumption and for alcohol intoxication: blood tests64 and breathalyzer.65 Arbitrators have also accepted so-called field sobriety tests,66 a combination of physical and verbal checks utilized by law enforcement personnel to check for drunk driving.

The results of such tests of employees have been held to prove that the employee had consumed alcohol, and, in other cases, that the employee was under the influence of alcohol.67 Objections to use of test results on the basis that they did not meet forensic standards have been held to go to the evidentiary weight to which such tests are entitled;68 a test conducted in accordance with sound, standard procedures has been held to be entitled to ''great weight.''

Arbitrators have sometimes been willing to extrapolate on the basis of a test result; thus, in Aerojet Liquid Rocket Co. ,69 the arbitrator held that a BAC of 0.03 at the time the test was conducted was sufficient to establish that an employee had been ''under the influence'' when he reported to work, based on the average rate at which people metabolize alcohol. However, other arbitrators have challenged such extrapolation, particularly without other evidence of intoxication.70

Use of blood alcohol levels to establish intoxication has frequently been accepted by arbitrators on the basis of agreed guidelines between the parties,71 although many arbitrators accepting such evidence as proof of intoxication have done so on the basis of scientific evidence, or, more frequently, on the basis of external standards, notably state drunk driving laws.72 However, some arbitrators have declined to sustain discipline based on BAC exceeding state vehicle code limits, requiring that the employer demonstrate ''subjective manifestations'' that reflect individual differences in alcohol tolerances.73 Results of such tests have been admitted over objections that the written reports of such tests constitute hearsay, pursuant to the ''business records'' exemption to the hearsay rule.74

[b] Tests for Illicit Drugs.

Testing employees for the presence of illicit drugs is ordinarily accomplished through analysis of the employee's urine. The most commonly-used technique, and the one generally recommended by medical and governmental agencies,75 is the use of a screening test, with any sample that yields a positive result confirmed by a second, more precise test. There are a number of screening tests. The most commonly used confirmatory test is gas chromotography/mass spectrometry (''GC/MS''), although Thin Layer Chromotography (''TLC'') is sometimes also utilized.

The testing technique of subjecting samples to a screening test, with positive samples subjected to GC/MS, has been widely accepted by arbitrators and has been recognized as ''the gold standard.''76 Even GC/MS positive results have been held insufficient to show impairment.77 However, other combinations of tests78 and even single, unconfirmed tests have been accepted by arbitrators for purposes of demonstrating employee exposure to drugs and even to ''prove'' impairment.79

FOOTNOTES:
Footnote 1. See, e.g., Capital Area Transit Auth. , 69 LA 811, 813 (Ellman 1977).

Footnote 2. Union Oil Co. of California , 88 LA 91 (Weiss 1986); Philips Indus. , 93 LA 1133 (Dilts 1989). But see Union Oil Co. of California , 86-1 ARB P 8209 (Boner 1985), for contrary result.

Footnote 3. See, e.g., Gem City Chems., Inc. , 86 LA 1023, 1025 (Warns 1986).

Footnote 4. 489 U.S. 602, 109 S. Ct. 1402, 130 LRRM 2857 (1989).

Footnote 5. 489 U.S. 656, 109 S. Ct. 1384, 4 IER Cases 246 (1989). The U.S. Court of Appeals for the District of Columbia followed the Treasury Employees case in Harmon v. Thornburgh , 878 F.2d 484, 4 IER Cases 1001 (D.C. Cir. 1989).

Footnote 6. Indeed, some have remarked that arbitral skepticism about drug testing of employees disappears at the point the arbitrator boards an airplane and is asked whether pilots should be tested.

Footnote 7. For a discussion of challenges to the implementation of drug testing programs as unilateral changes or issues of contract interpretation, see § 18.02 supra .

Footnote 8. The discussion in this section assumes a unilaterally imposed employer program. See § 18.02 [2] supra for a discussion of bargained-for testing programs.

Footnote 9. Alcan Aluminum Co. , 88 LA 386 (Kindig 1986) (return to work physical). See also Mason & Hangar-Silas Mason Co. , 103 LA 371 (Cipolla 1994), in which all employees at a nuclear weapons plant were subject to random drug tests and the grievant was discharged after he tested positive for marijuana. The arbitrator noted that although applicable federal regulations did not require testing of all employees at weapons plants and did not require immediate dismissal, nothing prevented the employer from implementing a more stringent policy. Moreover, the testing policy was in place for ten years and consistently enforced without any grievances challenging it and, although it had been unilaterally implemented, the union never bargained over it in several intervening new contract negotiations.

Footnote 10. Amoco Oil Co. , 88 LA 1010 (Weisenberger 1987).

Footnote 11. Bay Area Rapid Transit , 88 LA 1 (Concepcion 1986).

Footnote 12. Potomac Elec. Power Co. , AAA No. 16-30-0110-8411 (Zumas 1986); Central Ohio Transit Auth. , 88 LA 631 (Seinsheimer 1987). See also Dow Chem. Co. , 91 LA 1385 (Baroni 1988), where the arbitrator upheld random testing based in part on the extremely hazardous work environment and evidence of a widespread drug problem.

Footnote 13. Arkansas Power & Light Co. , 88 LA 1065 (Weisbrod 1987); Citgo Petroleum Corp. , 88 LA 521 (Allen 1986).

Footnote 14. Union Plaza Hotel , 88 LA 528 (McKay 1986).

Footnote 15. Indianapolis Power & Light Co. , 87 LA 826 (Volz 1986) (discharge of groundskeeper at public utility). In 1988 the Department of Transportation issued ''interim final rules'' requiring random drug testing and post-accident drug testing in the aviation, motor carrier, railroad, maritime, mass transit and pipeline industries. The rules became effective December 21, 1988, pending revision after receipt of public comment. 53 Fed. Reg. 47002 et seq. (Nov. 21, 1988).

Footnote 16. 88 LA 1 (Concepcion 1986). Cf. Boston Edison Co. , 92 LA 374 (Nicolau 1988), where Arbitrator George Nicolau held that drug testing of applicants for promotion and transfer in a unit of clerical workers and meter readers was unreasonable.

Footnote 17. 88 LA 1031 (Tripp 1987).

Footnote 18. Veterans Admin. Nat'l Cemetery , 83-1 ARB P 8316 (Irsay 1983) (discharge of probationary caretaker for drinking on job; not directly involving testing).

Footnote 19. Arkansas Power & Light Co. , 88 LA 1065 (Weishrod 1987).

Footnote 20. Boone Energy , 85 LA 233 (O'Connell 1985). See also Dow Chem. Co. , 91 LA 1385 (Baroni 1988), and Integrated Metal Tech. , 112 LA 677 (Stallworth 1999) (testing all employees who regularly worked in the employer's shipping area after marijuana was found in the area was justified under a contract permitting drug tests ''where circumstances or workplace conditions justify it'').

Footnote 21. Trailways, Inc. , 88 LA 1073 (Goodman 1987).

Footnote 22. Day & Zimmerman, Inc. , 88 LA 1001 (Heinsz 1987); Hobart Corp. , 88 LA 905 (Feldman 1987). Cf. J.A. Jones , 103 LA 161 (Talarico 1994) in which the arbitrator concluded, ''Employer's unilateral policy of never hiring an applicant who initially tested positive under any circumstance at any time is a per se unreasonable rule.''

Footnote 23. Day & Zimmerman, Inc. , 88 LA 1001 (Heinsz 1987) (no demonstrated need for random drug testing); Bay Area Rapid Transit , 88 LA 1 (Concepcion 1986). But see Day & Zimmerman, Inc. , 94 LA 399 (Nicholas 1990), where the arbitrator disagreed with Arbitrator Heinsz's conclusion in the earlier case.

Footnote 24. In Ohio Star Forge Co. , 110 LA 705, 707 (Gibson 1998), Arbitrator Rankin M. Gibson went beyond overturning discipline based on a random drug test, and ordered that the random drug testing provisions be deleted from the employer's unilaterally implemented substance abuse policy. Arbitrator Gibson stated that random testing ''[i]n effect places on all employees the burden of proving their innocence of drug or alcohol use without the necessity of a preliminary showing of probably cause or reasonable suspicion.''

Footnote 25. Mason & Hangar-Silas Mason Co. , 103 LA 371 (Cipolla 1994).

Footnote 26. Central Ohio Transit Auth. , 88 LA 631 (Seinsheimer 1987).

The courts have also been called upon to rule on random testing of public employees. See, e.g., Seelig v. Koehler , 76 N.Y.2d 87, 556 N.Y.S.2d 832, 5 IER Cases 481, cert. denied, 111 S. Ct. 134 (1990) (constitutionality of random testing of uniformed officers upheld).

Footnote 27. Citgo Petroleum Corp. , 88 LA 521 (Allen 1986).

Footnote 28. See, e.g., Gem City Chems., Inc. , 86 LA 1023, 1025 (Warns 1986).

But see Dow Chem. Co. , 91 LA 1385 (Baroni 1988).

Footnote 29. See Day & Zimmerman, Inc. , 88 LA 1001 (Heinsz 1987) (random testing unreasonable). But see Day & Zimmerman, Inc. , 94 LA 399 (Nicholas 1990) (random testing reasonable).

Footnote 30. AAA Case No. 16-30-0110-8411 (Zumas 1986).

Footnote 31. 87 LA 994 (Feldman 1986).

Footnote 32. 84 LA 1272 (Statham 1986). EG & G Mound Technologies , 99 LA 685 (Kindig 1992) (testing as part of annual physical permissible, but no report of positive result to management until third positive test). See also Wooster City Bd. of Educ. , 102 LA 535 (High 1993) (arbitrator determined that the contract authorized random testing of bus drivers on their off-duty time, did not prohibit employer from requiring tests on only a few hours notice, did not require compensation to drivers for lost income from other jobs forfeited to take the test and did not require that drivers be reimbursed for costs of travel to test site).

Footnote 33. Boone Energy , 85 LA 233 (O'Connell 1985).

Footnote 34. Fruehauf Corp. , 88 LA 366 (Nathan 1986).

Footnote 35. Potomac Elec. Power Co. , 88 LA 290 (Feigenbaum 1986). See generally § 18.08 [2] supra. Arbitrators found reasonable suspicion to test in Vista Chem. Co. , 99 LA 994 (Baroni 1992) (shift operator's failure to phone in when absent two successive days coupled with previous discipline for failure to report); Borg Warner Corp. , 99 LA 209 (Bethel 1992) (smell of burning marijuana coupled with other observations); Transit Management of Southeast La., Inc. , 93-2 ARB P 3429 (Massey 1993) (bus driver's argument with supervisor held to justify demand for test and driver terminated with cause for refusing). Cf. State of Delaware , 104 LA 845 (Gorman 1993) (under a contract requiring ''reasonable suspicion'' to administer a drug test, the company's decision to test was justified by the grievant's absences and his absence without notice and by the grievant's past history of similar behavior which had preceded his entering a drug rehabilitation program).

But cf. Occidental Chem. Corp. , 93-2 ARB P 3419 (Duff 1993) (''mere forgetfulness'' did not justify a test); Havens Steel Co. , 100 LA 1190 (Thornell 1993) (employee's heated argument with supervisor was not reasonable cause to test).

Footnote 36. See Occidental Chem. Corp. , 91-1 ARB P 8016 (Zirkel 1990); Shell Oil Co. , 91-1 ARB P 8448 (Massey 1991); Broward County Sheriff's Office , 91-1 ARB P 8265 (Richard 1991); Pabco Gypsum Co. , 90-1 ARB P 8054 (Weiss 1989).

Footnote 37. AAA Case No. 16-30-0110-8411 (Zumas 1986).

Footnote 38. 87 LA 800 (Byars 1986). Other arbitrators have found just cause to test when an employer received an anonymous tip in conjunction with an earlier tip and an admission of earlier drug use, Georgia Power Co. , 92 LA 1033 (Abrams 1989), and where a trained drug-detection dog identified the odor of marijuana in the grievant's car, Georgia Power Co. , 93 LA 846 (Holley 1989).

Footnote 39. Springfield Mass Transit Auth. Dist. , 80 LA 193 (Guenther 1983). See, e.g., Jefferson Smurfit Corp. , 106 LA 306 (Goldstein 1996) (an employer did not violate the parties' collective bargaining agreement when it required the grievant, whose work was inherently dangerous, to be drug tested following an injury at work and suspended him with pay pending the results of the drug test).

See also Tosco Ref. Co. , 112 LA 306 (Bogue 1999), in which Arbitrator Bonnie G. Bogue upheld the grievant's discharge under a substance abuse policy that defined post-accident testing as one type of ''reasonable suspicion testing,'' and required no independent evidence of drug use.

Bi-State Dev. Agency , 105 LA 319 (Bailey 1995) (arbitrator held that a company had just cause to require the grievant to undergo a drug test after the grievant, a bus driver, was involved in an injury-causing accident, even though the grievant was not at fault in the accident).

But see Stone Container Corp. , 91 LA 1186 (Ross 1988) (testing after ''any'' industrial accident one step away from random testing); Harshaw Filtrol Partnership , 89-1 ARB P 8204 (Rimmel 1988); Southern California Rapid Transit Dist. , 89-1 ARB P 8117 (Jones 1988) (testing after accidents a form of random testing). See also Stone Container Corp. , 95 LA 729 (Nolan 1990), where the arbitrator held that testing after any accident causing injuries requiring medical care was essentially random and unreasonable. He also rejected the employer's use of automatic suspensions pending return of test results.

See also Fitzpatrick Co. , 108 LA 686 (Briggs 1997), in which Arbitrator Steven Briggs concluded that the view expressed in the Stone Container cases, this note supra, is the prevailing view among published arbitration decisions. He concluded that an employer did not have just cause to terminate the grievant based on a drug test taken after a minor workplace injury, because the test did not show that the employee was under the influence at the time of the injury and there was no reasonable suspicion of impairment.

It is not yet clear whether the Supreme Court's decision in Skinner v. Railway Labor Executives' Ass'n , 489 U.S. 602, 109 S. Ct. 1402, 130 LRRM 2857 (1989), approving drug testing after railroad accidents, will affect arbitrators' views on post-accident testing outside the railroad industry.

Footnote 40. Potomac Elec. Power Co. , AAA No.16-30-0110-8411 (Zumas 1986). See also City of Texas City , 104 LA 534 (Allen 1995) (an employer violated contractual drug testing procedures when it required an employee to undergo a urine test immediately following an on-duty driving accident where there was no reasonable basis for a belief that the employee was impaired at the time of the accident and there were no injuries resulting from the accident); Pioneer Flour Mills , 101 LA 816 (Bankston 1993), where the arbitrator held that the mere occurrence of an accident did not justify testing.

But see Meijer Inc. , 112 LA 668 (Daniel 1998). The grievant reported his involvement in a workplace accident to a supervisor, after which the grievant continued working for the rest of his shift. He was then off duty for the next two days. When the grievant returned to work, the employer requested a drug test based on the accident that had occurred three days earlier. The test showed that the grievant had used cocaine. Arbitrator William P. Daniel concluded that the test results could not be used to show the grievant was impaired at the time of the accident, because the test was not timely administered. The arbitrator held, however, that the results showed the grievant was impaired on the day he returned to work, which was just cause for termination.

Footnote 41. Georgia-Pacific Corp. , 86 LA 411 (Clark 1985); Fruehauf Corp. , 88 LA 366 (Nathan 1986) (minor scratch potential as basis for screening); Roadway Express, Inc. , 87 LA 1010 (D'Spain 1986) (testing, the results of which was positive for marijuana, was upheld on the basis of supervisor's observations that grievant, a truck driver, was not cognizant of his surroundings and his speech was not normal, based on past observations, and his handwriting was different than his normal neat writing); Trailways, Inc. , 88 LA 941 (Heinsz 1987).

See also Aeronca Inc. , 112 LA 1063 (Duda 1999) (reinstating a grievant whose condition at work, as observed by her supervisor, was sufficient to order her to submit to a drug test, but was not sufficient to prove she was using drugs; reinstatement was conditioned on passing a drug test and random monthly testing for two years).

But see Fitzsimmons Mfg. Co. , 92 LA 609 (Roumell 1989).

Footnote 42. Day & Zimmerman, Inc. , 94 LA 399 (Nicholas 1990). Cf. Southern Cal. Rapid Transit Dist. , 92 LA 995 (Concepcion 1989) (post-leave testing arbitrary and capricious). Compare City of Evanston , 95 LA 679 (Dilts 1990), where the employer conducted a broad-spectrum drug test on an employee before letting him return to work under an appeals board order reinstating him. The arbitrator ruled that the drug test violated the contract's prohibition on random testing since the employer had no information other than rumor linking the grievant with potential drug use.

Footnote 43. See Denenberg & Denenberg, Drugs and Alcohol: Issues in the Workplace, 67 (1983). Cf. Southern Cal. Rapid Transit Dist. , 96 LA 20 (Gentile 1990), where the arbitrator rejected a chain-of-custody challenge. Arbitrator Joseph F. Gentile credited the testimony of a handwriting expert and rejected the grievant's denial that his signature appeared on the sample bottle.

Footnote 44. 82 LA 150 (Bernhardt 1983).

Footnote 45. 60 LA 1030 (Simon 1973). See also Jim Walters Resources , 95 LA 1038 (Roberts 1990) (chain-of-custody not proven; inadequate proof of care by courier who delivered sample to lab); Southern Cal. Rapid Transit Dist. , 92 LA 995 (Concepcion 1989) (grievance upheld where questions raised as to reason for testing, handling of sample and refusal to retest sample).

Footnote 46. See, e.g., Roadway Express, Inc. , 87 LA 1010 (D'Spain 1986) (positive blood test thrown out because of 10-minute break in the chain of custody, apparently in violation of the National Motor Freight Agreement Uniform Testing Procedures). See also Pacific Motor Trucking , 86 LA 497 (D'Spain 1986) (Blood test for alcohol thrown out because the laboratory report did not contain the date of receipt and chain of custody was not established, as required by the agreement of the parties). Vista Chem. Co. , 99 LA 994 (Baroni 1992) (positive test result rejected when National Institute on Drug Abuse Guidelines were not followed as per negotiated agreement); Eagle Energy , 110 LA 257 (Feldman 1998) (reinstating the grievant because the employer failed to follow its own rules regarding drug testing procedures).

Footnote 47. Cessna Aircraft , 52 LA 764 (Altrock 1969). See also State of Delaware , 104 LA 845 (Gorman 1993) (the company's failure to follow its own procedures for handling a urine speciman did not warrant invalidating the test results because there was no evidence the speciman had been tampered with or that the test results were unreliable).

Footnote 48. Ibid.

Footnote 49. Cessna Aircraft , 52 LA 764 (Altrock 1969).

Footnote 50. See, e.g., Metropolitan Transit Auth. , 93 LA 1214 (Baroni 1990).

Many arbitrators now consider whether the laboratory is certified by the National Institute on Drug Abuse (NIDA) and whether the procedures used have met NIDA guidelines. These guidelines apply to federal employees and private employees tested under federal regulations. Alcohol, Drug Abuse and Mental Health Administration, Department of Health and Human Services, Mandatory Guidelines for Federal Workplace Drug Testing Programs, 53 Fed. Reg. 11,970 (1988). Federal regulations requiring testing also address minimum precautions for maintaining chain of custody. Department of Transportation regulations, 49 C.F.R. § 40.25. See also San Mateo County Transit Dist. , 96 LA 365 (Cohn 1990), where an arbitration board reversed a discharge when federal chain-of-custody regulations were not met.

Footnote 51. Union Oil Co. of California , 86-1 ARB P 8209 (Boner 1985).

Footnote 52. See also DeCresce, Mazgra, Lifshitz & Tilson, Drug Testing in the Workplace (BNA 1990); S. Cohn & D. Gallant, Diagnosis of Drug and Alcohol Abuse (National Institute on Drug Abuse 1985); Employee Drug Screening: A Detection of Drug Use by Urinalysis (National Institute on Drug Abuse, U.S. Dept. of Health and Human Svcs. Pub. 86-1442).

Footnote 53. See generally § 18.02[4] for discussion of work rules relating to drugs or alcohol.

Footnote 54. See § 18.02 .

Footnote 55. See § 18.02 .

Footnote 56. See, e.g., The Dial Corp. , 92-2 ARB P 8481 (Gordon 1992).

Footnote 57. See Pioneer Aluminum, Inc. , 92-2 ARB P 8364 (Lumbley 1992).

Footnote 58. Denenberg & Denenberg, Drug Testing From the Arbitrator's Perspective, 11 Nova L. Rev. 371, 381 (1987).

Footnote 59. For a discussion of blood alcohol testing, see Denenberg & Denenberg, Drugs and Alcohol: Issues in the Workplace 77 (1983). See also A. M. Koven & S. L. Smith, Alcohol Related Misconduct 34-43, 77-88 (1984).

Footnote 60. For a discussion by Arbitrator Edgar A Jones, Jr. of evidence concerning the period during which marijuana residues linger and of the controversy over whether positive test results may reflect passive inhalation of marijuana smoke, see Southern California Rapid Transit Dist. , 89-1 ARB P 8117 (Jones 1988).

Footnote 61. LNP Corp. , 88 LA 1031 (Tripp 1987).

Footnote 62. Award No. 6 of Public Law Board No. 4107 (Vaughn). See also Award No. 22 of Public Law Board No. 925 (Kasher).

Footnote 63. Award No. 21 of Public Law Board No. 3715 (Lazar).

Footnote 64. Aerojet Liquid Rocket Co. , 75 LA 255 (Wollett 1980).

Footnote 65. Trailways, Inc. , 88 LA 941 (Heinsz 1987); National Steel Corp. , 88 LA 457 (Wolff 1986).

Footnote 66. Alameda-Contra Costa Transit Dist. , 80-1 ARB P 8060 (Randall 1979).

Footnote 67. Midwest Steel Division of Nat'l Steel Corp. , 88 LA 457 (Wolff 1986) (breathalyzer reading of 0.02 justified finding employee was ''under the influence''). See also Ampco Metal Inc. , 108 LA 355 (Suntrup 1997) (upholding discipline of an employee whose breathalyzer test indicated a blood alcohol level well below the ''legal limit'' because the employer's policy allowed discipline for any positive test).

Footnote 68. Alameda-Contra Costa Transit Dist. , 80-1 ARB P 8060 (Randall 1979). See also Phillips Petroleum Co. , 109 LA 315 (Shieber 1997) (reinstating a 19-year employee whose first blood alcohol test showed 0.044% and whose second test administered 17 minutes later showed 0.039%, where the specified limit was 0.04% and the testing equipment was not calibrated immediately prior to the first test).

Footnote 69. 75 LA 255 (Wollett 1980).

Footnote 70. Chase Bag Co. , 88 LA 441 (Strasshofer 1986).

Footnote 71. National Steel Corp. , 88 LA 457 (Wolff 1986).

Blood alcohol limits specified in drug policies may be interpreted very strictly. For example, see Cajun Elec. Power Coop , 108 LA 641 (Howell 1997) (upholding the termination of an employee whose blood alcohol level was 0.054%, under a negotiated substance abuse policy that permitted termination when the blood alcohol level was 0.05% or higher). In Exxon Pipeline , 109 LA 951 (Abercrombie 1997), Arbitrator John B. Abercrombie concluded that it was irrelevant whether the grievant knew that the employer's drug policy placed a 0.04% limit on blood alcohol level, as opposed to some other level, because the grievant knew that any positive result for alcohol would subject him to discipline.

Footnote 72. Pacific Motor Trucking , 88 LA 497 (D'Spain 1986); General Felt Indus., Inc. , 74 LA 972 (Carnes 1979).

Footnote 73. General Felt Indus., Inc. , 74 LA 973 (Carnes 1979).

Footnote 74. Alameda-Contra Costa Transit Dist. , 80-1 ARB P 8060 (Randall 1979).

Footnote 75. See, e.g., Interdisciplinary Approaches to the Problem of Drug Abuse in the Workplace, Consensus Summary, National Institute on Drug Abuse, DHHS Pub. No. (ADM) 86-1477 (U.S. Government Printing Ofc. 1986). In 1988, the Department of Health and Human Services issued Mandatory Guidelines for federal agencies and private employers testing in accordance with federal regulations.

Footnote 76. Amoco Oil Co. , 88 LA 1010, 1017-18 (Weisenberger 1987).

Footnote 77. Inspiration Consol. Copper Co. , 85-2 ARB P 8534 (Tamoush 1985). Cf. Southern Cal. Rapid Transit Dist. , 101 LA 10 (Gentile 1993), where Arbitrator Joseph Gentile overturned a discharge when two independent laboratories produced different test results.

Where discharges for on-duty impairment or use were based solely on test results, arbitrators have sometimes reinstated employees when test results were inconclusive as to the time of use or impairment. See, e.g., Southern Cal. Gas Co. , 89 LA 393 (Alleyne 1987); Trailways, Inc. , 88 LA 1073 (Goodman 1987); Tulsa Transit Auth. , 96 LA 862 (Harr 1991).

Footnote 78. Bi-State Dev. Agency , 88 LA 854 (Brazil 1987) (TLC and EMIT); Metropolitan Transit Auth. , 88 LA 1247 (King 1987) (EMIT and blood test).

Footnote 79. Central Ohio Transit Auth. , 88 LA 628 (Seinsheimer 1987) (testing methodologies not specified; held to prove grievants were ''high'' on marijuana); Amoco Oil Co. , 88 LA 1010 (Weisenberger 1987).




Source: Legal > Secondary Legal > Matthew Bender(R) > Labor & Employment > Labor & Employment Arbitration
TOC: Labor Arbitration > / . . . / > . . . / PART III SUBSTANTIVE ISSUES IN ARBITRATION / . . .
Chapter 18 Drug and Alcohol Issues > § 18.08 Employee Testing

View: Full
Date/Time: Sunday, November 3, 2002 - 12:20 AM EST

[Ihaman]

this is a big dot

[hereisnowhy]

__________________________________________________ ____________________

[skippy]

the answers are found here:
http://www.femund.net/femund_pub.htm


you don't under-stand every-thing now


BUT YOU WILL

fin

Why do you build me up (build me up) Buttercup, baby
Just to let me down (let me down) and mess me around
And then worst of all (worst of all) you never call, baby
When you say you will (say you will) but I love you still
I need you (I need you) more than anyone, darlin'
You know that I have from the start
So build me up (build me up) Buttercup, don't break my heart


"I'll be over at ten", you told me time and again
But you're late, I wait around and then (bah dah dah)
I run to the door, I can't take any more
It's not you, you let me down again


(Hey, hey, hey!) Baby, baby, try to find
(Hey, hey, hey!) A little time, and I'll make you happy
(Hey, hey, hey!) I'll be home
I'll be beside the phone waiting for you
Ooo-oo-ooo, ooo-oo-ooo
Why do you build me up (build me up) Buttercup, baby
Just to let me down (let me down) and mess me around
And then worst of all (worst of all) you never call, baby
When you say you will (say you will) but I love you still
I need you (I need you) more than anyone, darlin'
You know that I have from the start
So build me up (build me up) Buttercup, don't break my heart


You were my toy but I could be the boy you adore
If you'd just let me know (bah dah dah)
Although you're untrue, I'm attracted to you all the more
Why do I need you so


(Hey, hey, hey!) Baby, baby, try to find
(Hey, hey, hey!) A little time and I'll make you happy
(Hey, hey, hey!) I'll be home
I'll be beside the phone waiting for you
Ooo-oo-ooo, ooo-oo-ooo

[tear stained glass]

[Ihaman]

[Ihaman]

[Ihaman]

[Orchestra]

Time died for this post

[twice]

OMIFUCK MATT I <3 YUO

[strange_one]

whoa
http://www.abstractandincolor.com/ALogo.gif

[MstrGhost]

http://www.qis.net/~jmar/abstraction.jkurtz.sm.jpg

[frail_and_bedazzled]

how is this abstract? it's just nonsensical. if anything, it's postmodern.

[skippy]

Originally posted by frail_and_bedazzled
how is this abstract? it's just nonsensical. if anything, it's postmodern.

How DARE you question my vision! My art is whatever I desire it to be. You are totally interupting the chi of this post.

[Ketchup]

WHOA!

[shaniqua]

5/5

[Smiley33]

http://www.judiebomberger.com/images...bmarine/Y3.jpg

In the town where I was born
Lived a man who sailed to sea
And he told us of his life
In the land of submarines

So we sailed up to the sun
Till we found the sea of green
And we lived beneath the waves
In our yellow submarine

We all live in our yellow submarine,
Yellow submarine, yellow submarine
We all live in our yellow submarine,
Yellow submarine, yellow submarine

And our friends are all on board
Many more of them live next door
And the band begins to play

We all live in our yellow submarine,
Yellow submarine, yellow submarine
We all live in our yellow submarine,
Yellow submarine, yellow submarine

As we live a life of ease
Everyone of us has all we need
Sky of blue and sea of green
In our yellow submarine.

We all live in our yellow submarine,
Yellow submarine, yellow submarine
We all live in our yellow submarine,
Yellow submarine, yellow submarine

We all live in our yellow submarine,
Yellow submarine, yellow submarine
We all live in our yellow submarine,
Yellow submarine, yellow sumbarine



http://www.smile-a-day.com/pics/yellowsm2.jpg



"Yellow Submarine" first appeared on album titled "Revolver", in 1966. Later on, it was also *******d in "Yellow Submarine" album in 1969. You can also find it on the latest album - "The Beatles 1" (released November 14, 2000).

[tootsie]

i heart this thread.

[ChristHimself!]

the wind in your hair and the falcon on your wrist

[Crippler]

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GACTAGTAGAACAGTATAGCTATAGACTAGTAGAACAGTATACAGTACCA GTACGCTATAGACTAG
GCTATAGACTAGTAGAACAGTATACAGTACGCTATAGACTAGTAGAACAG TATACAGTACGCTATA
GCTATAGACTAGTAGAACAGTATACAGTACGCTATAGACTAGTAGAACAG TATACAGTACGCTATA
GCTATAGACTAGTAGAACAGTATACAGTACGCTATAGACTAGTAGAACAG TATACAGTACGCTATA
GCTATAGACTAGTAGAACAGTATACAGTACGCTATAGACTAGTAGAACAG TATACAGTACGCTATA
GCTATAGACTAGTAGAACAGTATACAGTACGCTATAGACTAGTAGAACAG TATACAGTACGCTATA
GCTATAGACTAGTAGAACAGTATACAGTACGCTATAGACTAGTAGAACAG TATACAGTACGCTATA
GCTATAGACTAGTAGAACAGTATACAGTACGCTATAGACTAGTAGAACAG TATACAGTACGCTATA
GCTATAGACTAGTAGAACAGTATACAGTACGCTATAGACTAGTAGAACAG TATACAGTACGCTATA