THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING

Drug test quid pro quo lacks a clear precedent

Firefighters’ case unique for union

Councilor at Large Stephen J. Murphy said that drug testing was ‘a piece’ of one police union contract deal. Councilor at Large Stephen J. Murphy said that drug testing was ‘a piece’ of one police union contract deal.
By Andrew Ryan
Globe Staff / May 26, 2010

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The controversial arbitration award for Boston firefighters includes a clear quid pro quo: They won a 2.5 percent boost in pay to undergo random drug and alcohol testing.

The rationale for paying each firefighter an average of $2,500 next year alone just to show up sober is simple, according to assertions by the firefighters’ union that are echoed by several members of the City Council, which must approve the award. The city, the argument goes, doled out significant payments when emergency medical technicians and police officers agreed to drug testing in the past, and fairness dictates that firefighters get the same.

“Do I believe philosophically that you should be paid for coming to work sober? Probably not,’’ union president Edward A. Kelly said last week at City Hall. “But what I will not stand for is that firefighters be treated unfairly.’’

A Globe review of contracts, city records, year-by-year pay increases, and videos of decade-old City Council hearings, however, found that there was no single concession or quid pro quo exchanged for EMTs and police officers to accept drug testing. And a review of the practices in other cities shows that giving firefighters a direct payment for the testing would set Boston apart from many other big-city fire departments.

In Boston, drug screening for EMTs and police came as part of larger contracts with lots of gives and takes. The additional pay or benefits the unions received in those agreements were not specifically for that concession; indeed, police and EMTs made other significant sacrifices in exchange for a boost in wages or retirement benefits.

In the case of the EMTs, for example, firefighters assert that drug testing was the price the union paid in 2008 to get the Menino administration to help make EMTs eligible for Group 4 pension benefits, which lowered the retirement to age 55.

But James Orsino — head of the EMT union, which has 380 members — called that a “fairy tale.’’

“It never occurred,’’ Orsino said. “There was no quid pro quo for drug testing.’’

The real trade for enhanced pension benefits was a lower pay package, according to Orsino and city officials. The EMT contract calls for an 11.5 percent salary increase over five years. Other public safety unions got a 14 percent bump in four years.

The firefighters’ award, issued earlier this month by arbiter Dana Edward Eischen, said explicitly that firefighters would get a 2.5 percent raise on the last day of the contact, June 30, because a “truly random drug and alcohol testing program is not free.’’ The award has raised eyebrows across the nation, because drug and alcohol testing is not typically a sticking point, and it has not come with a specific price tag in several other major cities.

“It is not the sort of thing that one sees as the focus of negotiations in most cities,’’ said Arnold Zack, a Harvard Law School professor and past president of the National Academy of Arbitrators, who has mediated more than 5,000 labor-management disputes since 1957. “In my experience, both sides want to get rid of the problem as rapidly as possible and create a constructive system for bringing people out of addiction if they have it.’’

New York firefighters did not receive additional pay when the city instituted random urine tests in August 2004 following a series of drug- and alcohol-related incidents, including a serious engine crash in the Bronx in which the firefighter behind the wheel tested positive for cocaine, according to a department spokesman. The fire department in Washington, D.C., began random tests in October, and the union did not receive any “incentives or compensation’’ in return, according to Pete Piringer, the department’s chief spokesman.

“There was no quid pro quo here as far as money was concerned,’’ said Larry Langford, spokesman for the Chicago Fire Department, which began randomly testing its 4,500 firefighters in August 2004. “It was put in as ‘best practice.’ The selling point, I believe, to the union was no firefighter wants to have his life in the hands of another firefighter who was impaired.’’

In Boston, the issue erupted in October 2007 when news organizations obtained autopsy reports from two firefighters who died in a restaurant fire. One had traces of cocaine in his system; the other had a blood-alcohol content of 0.27, more than three times the legal limit to drive.

Drug testing for Boston police dates to a 1998 agreement made by the Boston Police Patrolmen’s Association. The six-year deal included a promise that the city would adopt the Quinn Bill, a state program that once significantly boosted pay for officers with college degrees.

Evidence used by proponents of the firefighters’ arbitration award to justify the payment for being tested is a committee report filed at the time by Councilor at Large Stephen J. Murphy, which said that the police union agreed to “a new annual drug testing program and other contractual modifications’’ in exchange for the Quinn Bill.

“False. We took two zeros and other concessions,’’ said Thomas J. Nee, president of the Patrolmen’s Association. “There was no independent, singular quid pro quo. . . . There is no link between drug testing and the Quinn Bill.’’

Indeed, video of a 95-minute hearing on the issue that Murphy chaired on July 30, 1998, shows there were only four brief mentions of drug testing. In all but one instance, the new drug tests were noted in the same breath as other concessions.

The issue that dominated the discussion was whether the city could afford to pay its share of the education incentive. The repeated response was clear: In exchange for Quinn, police agreed to forgo raises in 2001 and 2002, years when firefighters saw raises of 4 percent and 4.5 percent.

On Sept. 23, 1998, Murphy told the full City Council that the police union had made a sacrifice in exchange for getting the Quinn Bill benefit, noting that officers would get no raises in the last two years of their contract.

In an interview yesterday, Murphy said that when police got the Quinn Bill benefits, drug testing was “a piece of it.’’ Murphy declined to say how he planned to vote on the firefighters’ award. Last night, he kicked off his campaign for state treasurer at the firefighters union headquarters, but insisted the event did not “signal anything’’ about his vote.

The council has scheduled a public hearing June 2 at City Hall to dissect the contract, and many councilors are wrestling with whether to approve it.

“It’s really hard to figure out the quid pro quos by comparing these contracts,’’ said Councilor at Large John R. Connolly, who said he remains undecided. “It’s like comparing apples to oranges. The bargaining is behind closed doors and then you have the mayor’s administration saying it was one thing and union leadership saying another.’’

Beyond the precedent of other unions, the award has also prompted a debate about whether paying firefighters to be tested is appropriate.

Drug and alcohol testing “is something that can be arbitrated, so therefore I understand why the union would do it,’’ said Councilor at Large Felix G. Arroyo, a former union organizer who has vowed to approve the contract. “But I also understand why the public is troubled.’’

Donovan Slack of the Globe staff contributed to this report.

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