The City is Winning Authority to Drug Test Its Workers It’s the First Time Managers Have Been Able to Test Many Employees, and It Could Lead to Problems

Gracey Zhang

CITY EMPLOYEES from six labor unions filled City Council chambers last week to warn that a strike might be on the horizon.

Rattling off a list of concerns, members of the city’s largest union group, the District Council of Trade Unions (DCTU), formally declared an impasse in ongoing bargaining over a new three-year contract. If the city and DCTU can’t reach a deal by early November, Portland could see its first labor strike in 16 years, with more than 1,000 employees as varied as parking enforcers, building code inspectors, and water bureau workers walking off the job.

“What we’ve seen in bargaining so far is a lack of movement on the city’s part,” Rich Thallmeier, a Portland parking enforcer and member of the American Federation of State, County, and Municipal Employees Local 189 (AFSCME), told the city council. “I feel that the city has engaged in bad-faith bargaining again.”

Among the DCTU’s demands: an across-the-board pay bump, a guarantee that member health records won’t be made public as part of new “preventative health evaluations,” and the continuation of a policy that sees union members given priority for promotions.

The city, on the other hand, is offering selective pay raises, and pushing new promotion and health policies it argues will increase diversity and save on medical costs.

Those are the differences, but the contract negotiations also include a notable new item the DCTU and the city might agree on: For the first time, Portland managers could get the power to drug-test all union members.

Under language city negotiators have already successfully bargained into three contracts this year, City Hall is pushing for authority to conduct “reasonable suspicion” drug and alcohol tests on employees.

Provisions in recent agreement with Laborers’ Local 483, Professional and Technical Employees Local 17 (PTE 17), and employees of Portland Parks and Recreation give supervisors authority to require a urine or Breathalyzer test if they have “reasonable suspicion,” that an employee is intoxicated at work.

The language says managers must be “trained in the signs and symptoms of drug and alcohol use,” in order to require a test. Refusal to consent to a test can get an employee fired.

Drug testing isn’t foreign to city employment. Workers who require a commercial drivers license, for instance, are subject to random tests. But the city’s never had authority to test any employee it wanted.

“It’s never been an issue,” says Rob Wheaton, an AFSCME representative who bargains on behalf of the DCTU. “Since I’ve been working with the city, I can think of two employees who’ve professed to being intoxicated and so were sent home.”

Unions are loath to give any ground in contract negotiations, but the three groups that have agreed to expanded drug tests apparently saw enough of an economic upside in the deals to okay the new provisions. They’ve hardly been crowing about it, though.

In an announcement summarizing changes in the new contract, the 828-member PTE 17 didn’t mention the new testing provisions. Union representative Rachel Whiteside says that’s because the document was “intended to highlight gains in our contract.”

“Our biggest concern about this language was the potential of bullying by managers,” Whiteside says. “They could just say, ‘Employee X smelled like marijuana.’”

That concern led PTE 17 and other unions to push for language saying the city “prefers two supervisors observe and document” an employee’s behavior. “However,” the contracts say, “if two are unavailable then one supervisor may take action.”

The city, of course, has good reason not to want employees showing up to work blitzed. Portland’s drug and alcohol policy has long prohibited such conduct—the city’s just never had the ability to order up tests to confirm its suspicions.

“At the height of our parks seasons we’ve got about 9,000 people who work for the city—of course there have been some problems,” says Anna Kanwit, the city’s human resources director. “We’re not trying to stop a pandemic here, but just in terms of overall safety to the public, the ability to verify that someone’s not under the influence is very important.”

One potential issue that unions are watching? There’s no test that can definitively tell whether someone’s impaired by pot, which can show up in urine tests weeks after a user partakes. That creates the possibility that managers could decide an employee is stoned, and order up a test confirming as much—even if the person hadn’t smoked in days.

“There is a very real possibility that there will be reasonable suspicion to do a test, and the person will test positive because of [marijuana] use many weeks previously,” says Matthew Ellis, a Portland employment lawyer.

That was a concern for PTE 17, says Whiteside, who notes the drug-testing policy could wind up being challenged by union attorneys. “Some of it may come down to testing the language,” she says.

Whether drug-testing provisions find their way into a city contract with the DCTU may depend on what happens in coming weeks. Both the city and union group are slated to file their “final” offers on Wednesday, October 4. Thirty days later, if no accord has been reached, DCTU members could walk off the job.

“We’re prepared,” says Wheaton, who notes that DCTU members are responsible for inspecting the city’s many construction projects. “That’s a lot of jobs that are going to be tied up.”