The accident occurred in the maintenance yard.  The grievant was immediately ordered to report to the clinic for an alcohol and drug test.  He refused to do so.  As a result he was suspended and subsequently terminated.

 The City argued that refusing to be tested presumes to be under the influence. 

 The Union raised two arguments.  First, the Department violated the Policy which states employees involved in an accident while operating a vehicle off departmental property must immediately submit to alcohol and drug testing.  In this instance, the accident occurred on department property, hence, there was no justification under the policy to refer him to the clinic.  Second, the department violated the grievant’s privacy rights in ordering him, without reasonable suspicion to submit to alcohol and drug testing.

 The Arbitrator determined it appropriate to apply the clear-and-convincing standard of proof.  “ The burden is on the Employer to prove, by clear and convincing evidence, just cause – not simply just cause for some discipline, but just cause for the ultimate sanction of discharge.”

 In discussing the issue of violation of privacy rights, the Arbitrator stated “Before reaching the issue whether the right against unreasonable searches and seizures has been violated, a determination must be made whether the action is “attributable to the government,” and amounts to a “search” or “seizure” for Fourth Amendment purposes.  Upon review, the Arbitrator concluded that the testing of the grievant was clearly attributable to government action because it was ordered by his governmental employer, the City of Detroit.

 It is well settled that testing, utilizing blood, breath or urinalysis, constitute “searches” that come within the ambit of the Fourth Amendment. Skinner, 489 U.S. 602, 616-617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (citing Schmerber v. California, 384 U.S. 757767-768- 86 S.Ct. 1826,  16 L.Ed. 2d 908 (1966) (finding a Fourth Amendment search in the use of blood-testing procedures).”

 The Arbitrator determined that although the alcohol and drug testing the grievant was directed to undergo is attributable to government action and constitutes a search for Fourth Amendment purposes, the question remains: was the testing reasonable?

 “The Fourth Amendment does not preclude all searches that are attributable to the government, only those that are unreasonable.  Skinner, 489 U.S. at 619, 109 S.Ct. 1402.  Whether the intrusion is reasonable “depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.”  United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed. 2d 381 (1985).”

 “A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. . . . In the context of government employment, there are limited exceptions to this general rule. . . . “

 The Arbitrator acknowledged that, in an earlier opinion concerning related issues, Arbitrator Roumell found the Department’s alcohol and drug testing policy required that the employee be “. . . involved in a vehicle accident while operating a DWSD vehicle off DWSD property . . . .”

 “The problem for the City of Detroit here is twofold.  First, (the grievant) was clearly operating the cart in the yard and not off of City-property.  Thus, the testing did not comply with the Department’s own policy and to pass constitutional muster, must meet the reasonable suspicion standards.

 Secondly, nothing about this garden-variety accident raised the specter of the driver’s intoxication-the accident evidenced only inattention and simple negligence here.  Further,  none of the signs pointing to a reasonable suspension of the grievant’s intoxication were present.  Still, he was directed to report for testing.

 “Because there was no justification for ordering (the grievant) to submit to alcohol and drug testing, he could rightfully protest the invasion of his constitutional right to privacy by refusing to follow the order. . .. . .

 Fairly considering all the circumstances, the Grievant’s discharge was not for just cause.  It must be set aside, and the Grievant must be reinstated.”

 The grievance was GRANTED.  The grievant was reinstated with full seniority and no break in service, nine months’ back pay and all longevity pay and bank-time credits he would have been entitled to receive from the date of his suspension.  The suspension/discharge was to be expunged from the record.