City of Stockton
Local 1229, I.A.F.F.
CSMCS Case #ARB-00-0413
116 LA (BNA) 390
August 24, 2001
Paul D. Staudohar, Arbitrator
R__(hereinafter called “Grievant”) was hired by the City in 1980 as a firefighter and worked as a firefighter-paramedic until 1994 when he was promoted to Fire Captain. After he lost the active use of his right hand in 1997, he was assigned to the Fire Prevention Division and ultimately became the Assistant Fire Marshal in charge of the mercantile inspection program. During his work as a line firefighter the Grievant worked a shift schedule of 24-hours on duty followed by 48-hours off duty. Since 1997 he worked a standard shift of 7 a.m. to 4 p.m., Monday through Friday.
On Sunday, October 8, 2000, the Grievant and his girlfriend W__ drove from Stockton to Sacramento in the Grievant's car. He parked the car in the lot of the Tower Records/Books store at 2600 Watt Avenue, located next to the Country Club Lanes, a bowling-billiards establishment which was ostensibly their destination. A female employee at Tower Books, outside on a cigarette break about 5:30 p.m., observed the Grievant and W__ in what appeared to be a sexual act. Although, she did not see them actually having sex, she thought it was strange that they were doing something like this in a public area. A security officer from the store was summoned and after looking into the car he approached Sacramento sheriff's deputies who happened to be in the area.
At about 6 p.m. Deputies Croteau and Cully located the Grievant's car, a green Jaguar, and asked for permission to search the vehicle. The Grievant signed a Consent to Search form and identified himself as a fire captain from Stockton. When asked if he had anything illegal on him, the Grievant admitted to having some methamphetamine in his wallet, which was later determined to be approximately 1.4 grams. The Grievant was placed under arrest for possession of methamphetamine and narcotics paraphernalia, which included a “toot” straw caked with white residue, used for ingesting methamphetamine. He and W__ were taken to the Sacramento County jail for booking and the Jaguar was removed by a towing company.
The Grievant told the deputies that he had not used methamphetamine since the day before and was not currently feeling any effects of its use. He also told them that he had been using the drug on weekends for approximately ten years. Although W__ showed obvious signs of alcoholic intoxication, neither she nor the Grievant were tested. An open bottle of wine was found in the car.
On the next morning, a Monday and a City holiday, the Grievant was released from jail. He returned to work on Tuesday and did not report his arrest and confinement to City authorities. The incident was not reported by the media or otherwise made known to the public.
On October 19, 2000 the Grievant and his attorney appeared in Sacramento Superior and Municipal Court. The attorney arranged with the District Attorney to reduce the charges to a single count of misdemeanor possession of a controlled substance. The Grievant pleaded no-contest to this charge. This was part of a “deferred entry of judgment” by the Court, because the Grievant entered an 18-month drug diversion program at a court appearance on November 1, 2000. This program provides persons with minor drug offenses the opportunity for rehabilitation without the stigma of a criminal conviction. If the program is completed, which the Grievant would achieve in May 2002, the arrest and charge are deemed to have not occurred and he can answer “no” to a question asking if he was ever arrested.
Meanwhile, on October 20, 2000, the Grievant and W__ decided in the early morning hours to go to the County Club Lanes to play pool. After playing pool and returning from Sacramento to Stockton, they were stopped by Sacramento County Deputy Sheriff Brent Jarvis. The car was pulled over because Jarvis thought from computer records that it had been towed and was in storage. He wanted to be sure that the driver of the car was the owner.
The Grievant explained that he had gotten the car out of storage and mentioned the prior arrest. Deputy Jarvis asked to search the car, to which the Grievant consented. Nothing improper was found. Jarvis asked the Grievant if he had reported the arrest to his fire department and he said “no.” He also said “no” to Jarvis's inquiry as to whether such notification was required. The Grievant then returned home and reported for work later in the morning.
Shortly after releasing the Grievant, Deputy Jarvis telephoned Battalion Chief Ray Call of the Stockton Fire Department. He told Call that the Grievant had been arrested on October 8 but had not informed the City. This prompted an internal affairs investigation into the Grievant's arrest by Fire Captain Dan Ruvalcaba. Captain Ruvalcaba conducted interviews with the sheriff's deputies who made the arrest and with the Grievant. He completed his report on December 7, 2000, and sent it to Deputy Fire Chief Rich ard Berger, who was responsible for handling personnel and disciplinary matters. After review of the report, the Grievant's personnel file, and other records, Deputy Chief Berger recommended to Fire Chief W. Gary Gillis that the Grievant's employment be terminated.
On December 14, 2000, Chief Gillis issued a notice of intent to terminate. Various City policies were cited in the notice. A Skelly hearing was held on December 27, 2000, following which Gillis recommended discharge to City Manager Dwane Milnes. Mr. Milnes notified the Grievant of his termination effective January 12, 2001.
Legal, MOU, and City Rule Provisions
The Labor Code of the State of California provides in part as follows:
§432.7 . Disclosure of arrest or detention not resulting in conviction or referral or participation in diversion programs; violations; remedies; exception; screening prospective concessionaires.
(a) No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in any pretrial or posttrial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial diversion program. As used in this section, a conviction shall include a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court. Nothing in this section shall prevent an employer from asking an employee or applicant for employment about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial.
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(g) (1) No peace officer or employee of a law enforcement agency with access to criminal offender record information maintained by a local law enforcement criminal justice agency shall knowingly disclose, with intent to affect a person's employment, any information contained therein pertaining to an arrest or detention or proceeding that did not result in a conviction, including information pertaining to a referral to, and participate in, any pretrial or posttrial diversion program, to any person not authorized by law to receive that information. (Emphasis in the original.)
The Government Code of the State of California, section 6254(f) provides in part:
[S]tate and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety or a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
(1) The full name and occupation of every individual arrested by the agency, the individual's physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.
(2) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime o r incident, and a general description of any injuries, property, or weapons involved.
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The following provisions of the Parties' Memorandum of Understanding are especially relevant:
Section 7. Discipline
Disciplinary action including discharge, suspension, reduction in pay, demotion, or other employment penalty may be taken against any employee for cause.
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Section 8. Grievance Procedures
A grievance is any dispute which involves the interpretation or application of those rules, regulations, and resolutions which have been, or may hereafter be, adopted by the City Council to govern personnel practices and working conditions, including such rules, regulations and resolutions as may be adopted by either the City Council or the Civil Service Commission to affect Memoranda of Understanding which result from the meeting and conferring process.
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8.3 Grievance Processing
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(e) Effect of Decision . Decisions of arbitrators on matters properly before them shall be final and binding on the parties hereto except as provided otherwise herein.
8.4 Scope of Arbitration
No arbitrator shall entertain, hear, decide or make recommendations on any dispute unless such dispute involves a position in a unit represented by the Union and unless such dispute fails within the definition of a grievance as set forth in paragraph 8.1.
8.5 Other Provisions
If the Director of Personnel Services, in pursuance of the procedures outlined above, or the City Manager in pursuance of the procedures outlined above resolve a grievance which involves suspension or discharge, they may agree to payment for lost time or to reinstatement with or without payment for lost time, but in the event the dispute is referred to arbitration and the arbitrator finds that the City had cause to take the action complained of, the arbitrator may not substitute his judgement for the judgement of management and if he finds that the City had such right, he may not order reinstatement and may not assess any penalty upon the City.
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The following provisions of the City's Rules and Regulations are pertinent:
Section 29. No employee shall engage in immoral or improper conduct, nor conduct in any way prejudicial to the good reputation, order or discipline of the Department. This admonition applies to behavior off duty as well as on duty.
Section 30. Employees of the Department may, pursuant to the City Charter, be subject to dismissal, suspension without pay, demotion or reduction in rank for any of the following reasons:
a. Incompetency, inefficiency or inattention to or dereliction of duty.
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b. Habitual intemperance, immoral conduct, any willful failure to properly conduct themselves or any violation of these rules and regulations, administrative orders, and rules and regulation of the Civil Service Commission or the City Charter.
c. Dishonest or immoral acts.
d. Drunkenness or improper use of intoxicating liquors, narcotics or any other habit-forming drug, liquid or preparation.
In its post-hearing brief, the City quotes the California Health and Safety Code, sections 11055 and 11377, stating that methamphetamine is a controlled substance and its possession is unlawful. Following his arrest for possession of methamphetamine, the Grievant was criminally prosecuted for the offense. The City cites the order signed by Sacramento County Judge Stanger, providing for the diversion program, as confirmation that the Grievant violated Health and Safety Code section 11377.
Even though completion of the 18-month diversion program may remove the criminal conviction from his record, should he commit a later infraction the disposition of that proceeding could be affected by the earlier conviction. Thus, argues the City, participation in the diversion program does not necessarily remove the criminal offense from his record.
The City further contends that under California law persons arrested have no expectation of privacy in police reports documenting the arrest, and the information is not precluded from release. Reference is made to Government Code section 6250 et seq. as broadly including virtually every document created by a public employee in furtherance of official duties. Captain Ruvalcaba was provided a copy of the crime report on the Grievant during Ruvalcaba's interview of the arresting sheriff's deputies. The City ar gues that this report on the arrest is not confidential “summary criminal history information,” but instead constitutes a public record for which disclosure may be required.
The City denies basing the disciplinary action on the Grievant's arrest. Ruvalcaba's investigation report and the subsequent notice of intent to recommend discharge by Chief Gillis are said to establish that the City's action was based on the Grievant's conduct, not his arrest. Referring to Labor Code section 432.7(a), the City emphasizes the language allowing an employer to ask an employee about an arrest for which the employee is out on bail or on his or her own recognizance pending trial.
Although the City does not dispute the Grievant's proficiency in performing the technical aspects of his job, his actions are said to have compromised his ability to be effective in a position that requires the trust of the public and his fellow firefighters. Cited in this regard is the testimony of Deputy Chief Berger and Chief Gillis as to how the Grievant's illegal drug use compromises the excellent reputation of the Stockton Fire Department and its employees. The public is said to expect that firefighters be trustworthy and law abiding. Also cited are the earlier problems the Grievant had with alcohol abuse and his ten years of using methamphetamine.
The City references the book Just Cause: The Seven Elements , by A. Koven and S. Smith (The Bureau of National Affairs, second edition, 1992). Arguments are provided to justify compliance by the City with the criteria presented in this book. For instance, the City cites its rules for establishing parameters of acceptable conduct, noting that because safety personnel are held to a higher standard of conduct, the rules are reasonable. The Grievant, based on his testimony in arbitration, is said to have been aware that use of illegal drugs was unacceptable. An independent, fair, and impartial investigation was conducted and the Grievant could not show that due process was violated. There is argued to be no questioning of the Grievant's guilt because he never denied using methamphetamine over the ten-year period. The City contends that employees in similar situations were not treated more favorably than the Grievant, emphasizing that methamphetamine, unlike alcohol, is an illegal substance.
The testimony of the Union's witness, Dr. Michael Erickson, is discounted by the City because he admitted to being uncertain that the Grievant would not repeat his behavior. This testimony is also discredited because Dr. Erickson did not speak to any of the Grievant's co-workers.
Citing the MOU, the City contends that the scope of the arbitrator's authority is limited to determining whether cause for termination exists. It is improper to “split the baby” or otherwise modify the discipline if cause for termination is found.
In its post-hearing brief, the Union disagrees with the City as to the scope of the arbitrator's authority to modify or revoke the discharge. Section 8.5 of the MOU is said to provide that if the arbitrator finds that the City had cause to terminate the Grievant he must uphold the termination and may not fashion another remedy. But should the arbitrator decide that the City did not have cause for termination he would be free to revoke the termination and fashion an appropriate remedy.
The Grievant was terminated solely because he was arrested for drug-related offenses, not because of being under the influence of any substance, or being convicted, or that he was a former drug user. Yet now the City is trying to rely on these other reasons, besides the arrest itself, which is inconsistent with the applicable “notice” documents. A mere allegation does not provide sufficient notice under the rules of Skelly v. State Personnel Board , 15 Cal.3d 194 (1975). Thus, the Union faults the City on due process grounds.
Because the arrest did not result in the Grievant's conviction, the City cannot terminate under Section 432.7 of the Labor Code. That provision is said to deny a public employer access to any record of arrest that did not result in conviction, or any record concerning participation in a post trial diversion program. The Grievant's arrest did not result in conviction because a plea of guilty pursuant to diversion statutes does not constitute a conviction for any purpose.
The Union contends that the City cannot use the arrest record to conduct its own investigation. Government agencies are said to be able to use information contained in an arrest report as a starting point for further investigation of a peace officer, pursuant to the Government Code. However, the Union emphasizes that the Grievant is not a peace officer.
The City was thus prohibited from using the fact of the arrest, the record of the arrest, or other information contained therein. Captain Ruvalcaba should not have relied on the arrest record or made an independent attempt at getting information from the arresting sheriffs deputies, according to the Union. Also, Deputy Jarvis is criticized because he provided information about the Grievant's arrest to Battalion Chief Call, who was not authorized to receive such information.
Also argued is that the City's witnesses did not identify any infirmity that renders the Grievant unable to perform the duties of his job. The Grievant's testimony that he never reported to work under the influence of or used a banned substance at work is said to be unrebutted. Immediately after his arrest on October 8 he stopped using methamphetamine and he has successfully completed a six-month counseling program which included random urinalysis tests.
Nor is the fire department's reputation said to be harmed, because the Grievant's arrest and former drug usage have not been revealed to the public. There were no newspaper reports and no citizen complaints. Also, a double standard is charged, in that firefighters who drink alcohol to excess and engage in off-duty misconduct are not punished by termination. The City is said to be much more tolerant, even accommodating, to alcoholism.
Further emphasized is that there was no obligation on the Grievant's part to disclose his arrest. The incident occurred off-duty, did not involve the City's property, and did not adversely impact the Grievant's ability to perform his job duties. Another reason for not reporting the incident is that when the Grievant revealed an earlier arrest for driving under the influence of alcohol the City's reaction was to fire him.
The Union stresses the Grievant's exceptional work performance. His annual performance evaluations show that he has been doing a very good job, and Chief Gillis called him “an excellent employee.” The City is argued to have presented no evidence showing that the Grievant is incapable of performing his job.
That the Grievant is likely to remain drug free is contended to be supported by the testimony of Dr. Erickson, a licensed psychologist with 25 years experience in diagnosing and treating substance abuse problems. His appraisal was that the Grievant is “highly unlikely” to develop an addiction to some other substance during the remainder of his career with the City.
Claiming that the Grievant's prior discipline does not support his termination, the Union refers to two minor corrective actions for sick leave usage and three incidents of tardiness over a period of several years. The Grievant's DUI suspension from 1989 is noted as being over ten years old and involving off-duty use of alcohol.
As a remedy, the Union seeks reinstatement with full back pay and benefits.
The Parties were unable to stipulate to an issue to be decided. The City, referencing Section 8.5 of the MOU, notes that the Arbitrator's authority is limited to determining whether cause existed for the termination, and if the Arbitrator determines that there was cause he cannot order reinstatement or assess a penalty on the City. The Arbitrator has discretion only if it is determined that cause for the termination did not exist. According to the Union, the issue is “Did the City and/or the Stockton Fire Department have just cause to terminate the Grievant from his former position as fire captain. If not, what is the appropriate remedy?”
Because of the limitations in the MOU, noted by the City, they should be referenced in stating the issue. Thus it seems appropriate to say: Did the City have cause to terminate the Grievant, and if not, what is the appropriate remedy as guided by the terms of the MOU? This statement of issue recognizes that if the Arbitrator finds that the City had cause for its action, he cannot substitute his judgment for that of management in determining a remedy.
Section 29 of the City's Rules and Regulations prohibits immoral or improper conduct prejudicial to the fire department, even if the behavior occurs off duty. Section 30 provides for dismissal in the event of habitual intemperance, immoral conduct, and improper use of narcotics. These rules were clearly violated by the Grievant's off-duty behavior. The public spectacle of performing sexual acts in a vehicle parked in a shopping area is obviously improper. Possession of methamphetamine is prohibited by law. Arresting policy officers found 1.4 grams of the stuff in the Grievant's car, which qualifies as improper use of narcotics under the City rules. The Grievant volunteered that he had been a methamphetamine user for approximately ten years. Although the City would not have known this but for the Grievant's admission, there is no doubt that he was involved in habitual intemperance as stated in City rules.
Examination of the Grievant's performance appraisals indicates that he was a capable employee. He is evaluated at “above average” or “outstanding” on most criteria for job performance, and nothing below “satisfactory”. Also, there is no evidence that drug use affected his work. The Grievant's past discipline in connection with sick leave use and tardiness is minor and does not appear to have any impact on the current review.
The 1989 suspension for driving under the influence of alcohol is another matter. That this is over ten years old favors the Grievant, but the facts of the case present a disturbing example of substance abuse. Most troubling is that this was the Grievant's third DUI. The City sought to terminate the Grievant for the DUI but the penalty was reduced by the City's Civil Service Commission to a 60-day suspension. The Grievant contends that he quit drinking. But he told the arresting deputy sheriffs on October 8 that “W__ is more of a drinker. I don't drink as much as she does”. This statement calls into question whether the Grievant still consumes alcohol.
Michael Erickson, Ph.D., a licensed psychologist, evaluated the Grievant as to substance abuse following his discharge. Dr. Erickson testified that “I think the odds are very good that he's not going to go back to drugs”. The reasons for this conclusion were explained by this witness based on interviews, psychological testing, and other evaluations of the Grievant. At least up to the time of the arbitration hearing the Grievant had complied successfully with the requirements of his court-ordered drug diversion program.
An important question in this case is the application of Section 432.7 of the Labor Code. This law prevents employers from utilizing in a termination any record of arrest that does not result in a conviction. For purposes of the law a conviction includes a plea or finding of guilt, regardless of whether a sentence is imposed by the court.
The Union contends that this law by itself invalidates the Grievant's termination because the City used the arrest record in reaching its decision. On the other hand, the City argues that it is the Grievant's conduct that led to his dismissal. Also, the City cites Section 6254(f) of the Government Code which requires state and local enforcement agencies to provide information on arrests to the public.
The Labor Code seems clear enough in prohibiting the use of arrest record information in a termination matter if there is no conviction. Was there a conviction in the Grievant's case? He pleaded no-contest to the misdemeanor charge of possession of methamphetamine. This could be construed to mean a conviction under the Labor Code language. But the Union also cites Penal Code Section 1000.1(d), which states that “A defendant's plea of guilty pursuant to this chapter shall not constitute a conviction for any purpose unless a judgment of guilty is entered pursuant to Section 1000.3.”
Section 1000.3 of the Penal Code states that criminal proceedings may be reinstituted if the “... defendant is not benefiting from education, treatment, or rehabilitation ...” It goes on to say that “If the defendant has performed satisfactorily during the period in which deferred entry of judgment was granted, at the end of that period, the criminal charges shall be dismissed.”
In light of this law it appears that the Grievant has not, at least thus far, been “convicted” for purposes of Section 432.7 of the Labor Code. It is true that the Sacramento court made a finding of a violation of the law regarding possession of an illegal substance. But the Grievant was placed in a diversion program which, if completed successfully, would result in dismissal of the criminal charge. It would be as though the incident giving rise to the arrest never occurred.
This reasoning is not compromised by Government Code section 6254(f). That law refers to making criminal investigation information available to the public.. Modeled after the Federal Freedom of Information Act, the law allows for disclosure, but the use of such information in a termination matter could still be prohibited under other laws.
The Union contends that it was improper for Officer Jarvis, the Sacramento County sheriff's deputy, to disclose the information on the Grievant's arrest to the Stockton Fire Department. However, that disclosure seems to be allowed by Government Code section 6254(f). So the City did not obtain the information improperly. But because the Grievant has not been convicted, Section 432.7 of the Labor Code would preclude the City from using the information contained in the arrest report for purposes of terminating the Grievant. Although the City may have imposed termination due to the Grievant's behavior, the rationale for doing so is almost entirely based on the arrest report and the City's investigation into events described in that report.
The City included with its post-hearing brief several excerpts from statutes plus various complete court decisions. Reference has been made above to some of the statutory information. As to the court cases, Cranston v. City of Richmond , 40 Cal.3d 755 (1985) appears to be the leading precedent. It involved the discharge of a police officer for operating a mechanically unsound vehicle in a reckless fashion in violation of traffic laws. The incident occurred while the officer was off duty. Although there was no city rule prohibiting such behavior, the California Supreme Court determined that the incident could be disciplined because the public has a right to expect police officers to obey the law whether they are on or off duty. The instant case is even stronger than Cranston in that the City did have a rule prohibiting improper off duty behavior. But the Grievant is not a peace officer and, more importantly, statutory law prohibits the use of arrest information under certain circumstances in termination matters, which was not at issue in Cranston.
Another case cited by the City is Delta Lines, Inc. v. International Brotherhood of Teamsters , 66 C.A.3d 960 (1977), a decision of the California Court of Appeal. In that case an arbitrator reinstated a discharged truck driver, where the sole issue before the arbitrator was whether the employer had just cause to discharge the driver for his failure to be available for work. The court vacated the arbitrator's award. The arbitrator had reinstated the driver because the employer participated in a police action that was an invasion of the driver's privacy. This was found by the court to be beyond the arbitrator's powers since he was confined to the single stipulated issue of whether the driver failed to be available for work. In the instant case it is recognized by the Arbitrator that he cannot substitute his judgment for that of the City's if cause for discharge is determined to exist.
The above cited provisions of the Labor Code and Penal Code preclude the City from using the record of the Grievant's arrest, because it did not result in a conviction. At the time the City received the information the Grievant was not out on bail or out on his own recognizance pending trial. However, because the Grievant has not yet completed the 18-month diversion program, it is still possible that he could be convicted before the charge against him disappears. Therefore, it is appropriate to reinstate the Grievant to his former position but to hold the termination in abeyance pending his completion of the drug diversion program in May 2002.
The evidence is not entirely convincing that the Grievant has (1) refrained from alcohol consumption since the time of his last DUI conviction in 1989, and (2) will remain drug free for the duration of his career with the City. Consequently, it is appropriate that the Grievant be subject to random testing for the duration of his employment. This was a proposal that the Grievant himself made at the arbitration hearing. If in the future the Grievant tests positive for alcohol or a controlled substance, he w ould be terminated without right of appeal.
There is no question that the Grievant's improper behavior gave rise to events leading to his termination. Although the termination is invalidated, the Grievant must bear responsibility for his actions. Accordingly, it is not appropriate that he receive back pay or benefits.
After careful consideration of all written and oral evidence presented by the Parties, it is determined that the City did not have cause to terminate the Grievant. He is ordered reinstated to his former position, but without back pay or benefits. Although the Grievant is to be reinstated forthwith, the termination action is held in abeyance pending his successful completion of the drug diversion program in May 2002. Should he fail to complete this program the termination would be reactivated. The Grievant is required to submit to random testing for alcohol and illegal drugs for the duration of his career with the City. A positive test would result in termination without right of appeal.
The grievance is sustained in part, subject to the above conditions.
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