City, labor unions go to court over revised drug testing policy

The dispute between two local labor unions and the City of Great Falls over the city’s expanded drug policy is now in district court.

Earlier this month, the city filed for an injunction asking the court to declare that the city has management rights to require the drug testing for any employees in safety sensitive positions and to stop the unions from proceeding with arbitration regarding their grievances and unfair labor complaints at the state level until district court rules on the management rights question.

In January, the city notified employees of a new drug testing policy that would include random drug testing and apply to more employees. Employees were also notified that there would be a 60-day implementation period and the policy would become effective April 1.

Odds and ends from City Commission this week: snow plowing, drug testing, health insurance

The city’s revised drug/alcohol testing policy updated the city’s 2006 policy and applies to employees in safety sensitive positions including lifeguards, employees who operate city vehicles, employees who supervise and/or transport minors, employees with CDLs and employees who are reasonably suspected to be under the influence of prohibited substances while on duty.

International Association of Fire Fighters Local 8 filed a grievance that Doyon denied and sent to arbitration, pursuant to their collective bargaining agreement. The city and the union agreed earlier this year on an arbitrator to hear the case.

IAFF Local 8 and Montana Federation of Public Employees both filed unfair labor practice complaints against the city with the Montana Board of Personnel Appeals. The MFPE was created when the Montana Public Employees Association merged with another union last year.

Both of the labor unions argue in their complaints that the drug and alcohol testing policy should have been negotiated through their collective bargaining processes.

The city sent a letter to employees with the new policy and a form that employees were required to sign acknowledging the new policy and consenting to testing. The form states that employees will be subject to possible termination if they don’t sign the required forms.

In their complaint, IAFF Local 8 writes, “by requiring union members to sign the documents presented to them that are specific matters that fall within the scope of mandatory subjects of bargaining and directly affects their current terms and conditions of employment, a well as future terms and conditions of employment, without the union’s knowledge and/or presence, is considered direct dealing. The city has unilaterally changed terms and conditions of employment of all employees covered by the collective bargaining agreement without any bargaining.”

Great Falls Police Department officers are subject to random drug and alcohol testing under their labor agreement.

The city maintains that it has a management right under state law and an obligation to ensure and maintain public and employee safety.

In May, the city asked the arbitration to be dismissed on the grounds of the city’s management right, but in June, the arbitrator denied the request.

A hearing on the unfair labor practice at the state level is currently set for October.

In the lawsuit filed in Cascade County district court, City Attorney Sara Sexe argues that proceeding with the arbitration and unfair labor practices hearing would irreparably harm the city because, among other reasons:

  • the city would be required to proceed on the same issue in separate venues with separate decision makers with the potential of different and contrasting determinations being made;
  • extending public funds on determinations regarding factual issues, “when threshold legal determinations as to the nature and extent of management rights must first be obtained;”
  • the city would be required to negotiate a statutorily imposed obligation to provide for public safety and general public welfare; and/or
  • be required to negotiate multiple drug and/or alcohol testing policies with multiple labor unions.

In March, City Manager Greg Doyon told City Commissioners that over the last two years, the human resources department has been updating personnel policies and the drug testing policy was last updated in October 2006 and only applied to those whose job required them to possess a CDL or if there was reasonable suspicion of them being under the influence at work.

The city’s overall personnel policy was last updated in May 2016 and addresses the use of drugs and alcohol in the work place but didn’t include random drug testing provisions, he said.

The drug and alcohol policy was outdated and needed revision, Doyon said in March, “and over the past year, city management has become aware of and increasingly concerned about workplace instances of employee drug and alcohol use.”

The city has an agreement with an outside company, ChemNet, that conducts the testing.

Doyon said in March that some may wonder why the city didn’t negotiate the testing, but he said that would create administrative challenges and ultimately could cost more to taxpayers.

“We believe that it’s a management right to do that to ensure that employees are safe in the work place and that the public that they serve are safe as well,” he said in March.