Third Division	

									Filing DateJune 30, 2003

No. 1-01-3583

CARLOS CASANOVA,					)	Appeal from the

							)	Circuit Court of

							)	Cook County,

		Plaintiff-Appellant,		)	Chancery Division 

							)				

	v.						)	No. 99 CH 5127 	

							)				    

THE CITY OF CHICAGO, ILLINOIS;		)	 

THE CHICAGO, ILLINOIS, FIRE    	 	)	

DEPARTMENT; CHICAGO FIRE FIGHTERS		)	

UNION, LOCAL #2, INTERNATIONAL		)

ASSOCIATION OF FIRE FIGHTERS,			)	

AFL-CIO-CLC; and EDWIN H. BENN,		)	

ARBITRATOR,						)	

							)	Honorable

							)	Robert V. Boharic,

		Defendants-Appellees.		)	Judge Presiding.

	JUSTICE HALL delivered the opinion of the court:

	Plaintiff-appellant, Carlos Casanova, a former firefighter with the

Chicago fire department appeals from the circuit court's order dismissing his

second amended petition to vacate the arbitrator's award.  In the arbitration

award, the arbitrator found that the City of Chicago (City) had demonstrated

just cause for discharging Casanova after he tested positive for alcohol in

violation of his "Last Chance Agreement" (LCA).  The circuit court dismissed

Casanova's second amended petition to vacate the arbitral award on the ground

that he had no standing to contest the award.  The circuit court also found

that the arbitrator did not exceed his authority or violate public policy by

finding that the City was not required to give Casanova a urine test to

confirm the results of his breathalyzer tests.

	On appeal, Casanova contends that: (1) the LCA is a separate agreement

from the collective bargaining agreement (CBA), and therefore the LCA gives

him standing, independent of his union, to bring suit to vacate the

arbitrator's award; and (2) the arbitrator's finding that the City was not required to perform a urine test to confirm the breathalyzer test results amounted to a taking of his property interest without due process of law in

violation of public policy.  For the reasons that follow, we affirm.

FACTUAL BACKGROUND

	On December 29, 1994, Casanova and a codefendant were arrested by the

Chicago police department for possession of cocaine.  At the time of his

arrest, Casanova was employed as a firefighter with the Chicago fire

department (CFD) and was a member of the Chicago Fire Fighters Union, Local #2

(Union).  As a result of the arrest, the CFD brought disciplinary charges

against Casanova seeking his termination.  Casanova filed a grievance

protesting the threatened discharge.  No disciplinary action was taken,

however, as the CFD awaited the outcome of the underlying criminal charge.1

	On September 10, 1997, Casanova, in the presence of a Union

representative, signed what is commonly referred to as a "Last Chance

Agreement" or "LCA."2  The LCA provided that the recommended discipline of termination pursuant to General Order 87-008 would be held in abeyance

provided Casanova complied with the specific terms set forth in the employee

assistance program and be subjected himself  to random testing for drugs and/or

alcohol for a period of one year.  Under his LCA, if Casanova tested positive

for drugs or alcohol during this one-year period, either on or off duty, he

would be subject to immediate discharge.  The LCA also provided that Casanova

waived any rights he may have had "to contest or challenge any matters arising

out of the drug and alcohol screening conducted in this case."  The grievance

as to the originally sought termination was withdrawn at or about the same

time the LCA was executed.

	Thereafter, on the morning of September 30, 1997, 20 days after signing

the LCA, Casanova underwent a randomly scheduled drug and alcohol test in

accordance with the terms of his LCA.  In answer to the question as to whether

he had taken any medication within the past six hours, Casanova stated that he

had taken Tylenol Robitussin cough syrup at about 6 a.m.  The CFD then

administered two breathalyzer tests for alcohol.  The first test occurred at

9:46 a.m., and the second at 9:59 a.m.  Both tests yielded a .04% positive

alcohol level.						

	The CFD discharged Casanova by letter dated November 25, 1997, on the

ground that his positive test results for alcohol constituted a violation of

his LCA.  In response, the Union filed a grievance challenging Casanova's

discharge and, in accordance with the provisions of the collective bargaining

agreement, submitted the matter to arbitration.

	Hearings before arbitrator Edwin H. Benn were held on September 29,

1998, and October 6, 1998.  The sole issue at arbitration concerned whether

the CFD had just cause for discharging Casanova based on the positive test

results for alcohol.  The Union argued that the accuracy of the breathalyzer

tests could have been compromised due to Casanova ingesting cough syrup

containing alcohol just before the tests were administered.  The Union

asserted that the positive test results could have been caused by Casanova

burping and regurgitating the cough syrup.  The Union maintained that the

cough syrup could have left trace amounts of alcohol in Casanova's teeth and

mouth.  The Union also argued that since Casanova's absorption of alcohol was

slowed by hepatitis, the three tablespoons of cough syrup he had been taking

every three to four hours before and on the date the breathalyzer tests were

administered could have caused the positive test results.

	In response, counsel for the City maintained that before Casanova took

the breathalyzer tests there was no evidence that he was burping to any extent

that would have caused regurgitation of the cough syrup.  The City also

presented evidence that pursuant to department protocol, the breathalyzer

tests were given in such staggered time periods that any trace amounts of

alcohol in Casanova's teeth and mouth would have dissipated by the time the

tests were administered.

	The City also presented the testimony of Doctor Arthur Prancan, an

associate professor of pharmacology at Rush Medical College.  Dr. Prancan

testified that if Casanova had ingested three tablespoons of cough syrup

containing alcohol between 6 a.m. and 8 a.m., this would not have resulted in

a measurable concentration of alcohol at the time he underwent the breathalyzer tests, even taking into account his slowed absorption of alcohol

due to hepatitis.  Dr. Prancan opined that in order for a person of Casanova's

weight (205 pounds) to produce a .04% test result at 9:46 a.m., he would

either have to consume 17.75 ounces (2.2 eight-ounce bottles) of cough syrup

containing 5% alcohol 20 minutes prior to the test, or consume 55.8

tablespoons (3.5 eight-ounce bottles) of cough syrup at 8 a.m.

	The Union countered that in addition to the breathalyzer tests, the City

should have performed a confirmatory test for alcohol on Casanova's urine

specimen since he ingested cough syrup containing alcohol before taking the

breathalyzer tests.  The City responded that General Order 87-008 did not

require urine tests for alcohol but, rather, permitted the use of a

breathalyzer test to detect alcohol.

	On January 3, 1999, the arbitrator handed down his award.  The

arbitrator stated that Casanova had failed to raise the hepatitis matter until

the hearing and noted that after Casanova was diagnosed with hepatitis in

1988, he ignored his physician's instructions to abstain from all alcoholic

beverages.  The arbitrator determined that even accounting for Casanova's

impaired absorption of alcohol due to hepatitis, the small dosages of cough

syrup he claimed he consumed before taking the breathalyzer tests did not

account for the .04% positive test results.  The arbitrator also determined

that pursuant to General Order 87-008, the City was not required to perform a

confirmatory test for alcohol on Casanova's urine specimen.  Accordingly, the

arbitrator denied the Union's grievance, finding that the City had met its

burden of proving just cause for discharging Casanova where he tested positive

for alcohol in violation of his LCA.  The Union did not challenge the arbitrator's decision.

	On April 5, 1999, Casanova, represented by private counsel, filed a

petition in circuit court to vacate the arbitral award.  In the petition,

counsel argued that the arbitrator exceeded his authority by finding that a

confirmatory urine test for alcohol was not required before Casanova could be

discharged.  Counsel asserted that Casanova had a property interest in his

employment, and that the arbitrator's denial of Casanova's grievance without

requiring the City to perform a urine test to confirm the breathalyzer tests

amounted to a taking of this property interest without due process of law in

violation of public policy.  Counsel also argued that the Union breached its

duty of fair representation by failing to file a petition to vacate the

arbitral award.

	On May 7, 1999, pursuant to section 2-615 and section 2-619 of the Code

of Civil Procedure (Code) (735 ILCS 5/2-615, 619 (West 1994)), the City filed

its motion to dismiss Casanova's petition to vacate the arbitral award.  The

City argued that Casanova's petition should be dismissed because it was

untimely filed.  The City also argued that Casanova lacked standing to bring a

petition to vacate the arbitral award unless he alleged and proved that his

Union breached its duty of fair representation.  In addition, the City claimed

that even if Casanova had standing to contest the award, he failed to allege

facts sufficient to state a claim that the Union committed any unfair labor

practice.  The City further argued that the arbitrator did not exceed his

authority because there is no public policy requiring the use of a

confirmatory urine test rather than a breathalyzer test to establish the

presence of alcohol.

	On September 8, 1999, while Casanova's petition to vacate the arbitral

award was pending in the circuit court, counsel for Casanova filed an unfair

labor practice charge with the Illinois Labor Relations Board (Labor Board),

alleging that the Union had breached its statutory duty of fair representation

owed Casanova under the Illinois Public Labor Relations Act (Labor Act) (5

ILCS 315/1 et seq. (West 1996)).  In the charge, counsel maintained that in light of the 90-day limitations period for filing a petition to vacate an

arbitral award, the Union's conduct in waiting until May 10, 1999, to inform

Casanova that the Union would not be filing a petition to vacate on his behalf

amounted to unfair representation.  Counsel sought a declaration requiring the

Union to proceed with a petition to vacate the arbitration award,

reinstatement of Casanova and any other relief provided by the Labor Act.

	On September 10, 1999, the circuit court heard oral arguments on

Casanova's petition to vacate the arbitral award.  The record shows that this

hearing was the first time the circuit court was informed that counsel for

Casanova had filed a charge with the Labor Board.  The circuit court was also

informed that the Labor Board had not yet made a determination.  Upon

receiving this information, the circuit court stated that these revelations

altered its view on the standing issue.

	At the court hearing, the City argued that in order for Casanova to have

standing to contest the arbitration award he would have to submit his claim in

the form of an unfair labor charge with the Labor Board, which the City

claimed had exclusive jurisdiction.  In addition, the City argued that the

arbitrator's finding that a confirmatory urine test for alcohol was not

required did not offend public policy, since breathalyzer tests were commonly used in criminal proceedings such as driving under the influence (DUI) of

alcohol.  The City further argued that a breathalyzer test was noninvasive and

it was reasonably related to the governmental interest of insuring that

firefighters were not intoxicated while on duty.

	After arguments were concluded, the circuit court denied the City's

motion to dismiss on the ground of standing, and instead held proceedings over

until completion of the Labor Board's investigation of Casanova's charge

against the Union.  On the issue of public policy, the circuit court concluded

that it could not, at that time, determine whether the arbitrator's award

violated a defined and dominant public policy.  The circuit court, therefore,

gave Casanova permission to file an amended petition containing facts

sufficient to establish that the arbitrator's award violated a well-defined

and dominant public policy.

	Casanova filed an amended petition with the circuit court on May 8,

2000.  On October 6, 2000, the Labor Board issued its decision dismissing

Casanova's unfair labor charge against the Union.  Casanova appealed the Labor

Board's decision directly to this court. Casanova v. Illinois Labor Relations Board Local Panel, No. 1-01-0313 (2001) (unpublished order under Supreme Court Rule 23).

	On December 13, 2000, Casanova filed a second amended petition to vacate

the arbitral award in the circuit court.  The circuit court dismissed

Casanova's second amended petition on September 6, 2001.  The circuit court

determined that the CBA did not give Casanova standing to contest the arbitral

award and since the LCA was not an independent agreement, but instead was

subject to the CBA, the LCA also did not give him standing to contest the award.  The circuit court also concluded that there was no public policy

guaranteeing a confirmatory urine test and, therefore, the arbitrator did not

exceed his authority by finding that a confirmatory urine test for alcohol was

not required before Casanova could be discharged.  Casanova filed his notice

appealing the circuit court's order on September 25, 2001.

	Meanwhile, on December 31, 2001, this court entered a Rule 23 order

rejecting Casanova's claim that the Labor Board erred by dismissing his unfair

representation charge against the Union. Casanova v. Illinois Labor Relations Board Local Panel, No. 1-01-0313 (2001) (unpublished order under Supreme Court Rule 23).  On May 30, 2002, our supreme court denied Casanova's petition for

leave to appeal the Rule 23 order.

ANALYSIS

Standard of Review

	The circuit court's order dismissing Casanova's second amended petition

under section 2-615 and section 2-169 involves questions of law and is

therefore reviewed de novo. R-Five, Inc. v. Shadeco, Inc., 305 Ill. App. 3d 635, 639, 712 N.E.2d 913 (1999).

I. Last Chance Agreement

	Casanova first contends that the LCA gives him a right, independent of

his Union, to contest the arbitral award.  He asserts that the LCA is a

separate agreement from the CBA and therefore,  the LCA gives him standing to

bring suit to vacate the arbitrator's award.

	The City responds that the LCA does not give Casanova standing to

contest the arbitrator's award because the LCA is not an independent agreement

but, rather, is subject to the CBA between the City and the Union.  The City maintains that the underlying arbitration was authorized by the CBA and not

the LCA, which contains no arbitration clause.  The City argues that the

arbitration clause giving rise to the arbitral proceedings is found only in

the CBA, and therefore, only parties to the CBA have standing to challenge an

arbitration award.  The City contends that since Casanova is not a party to

the CBA he has no standing to bring suit to vacate the arbitration award.  We

agree with the City.

	Federal courts addressing this issue have determined that last chance

agreements are not independent of the collective bargaining agreement, but

instead should be treated as supplements to the collective bargaining

agreement for preemption purposes because the last chance agreement can only

be effective as part of the larger collective bargaining agreement3. See, e.g., Tootsie Roll Industries, Inc. v. Local Union No. 1, 832 F.2d 81, 83-85 (7th Cir. 1987) (treating last chance agreement as if it were a collective

bargaining agreement); Bakers Union Factory No. 326 v. ITT Continental Baking Co., 749 F.2d 350, 354, 356 (6th Cir. 1984) (concluding that the collective bargaining agreement provides the means by which the parties may negotiate a

last chance agreement); International Union of Operating Engineers, Local 351 v. Cooper Natural Resources, Inc., 163 F.3d 916, 919 (5th Cir. 1999) (stating that when the company and union entered into the LCA reducing an employee's

punishment for failing a drug test, the parties "formed a binding contract

pursuant to the CBA" and that the "LCA must be thought of as a supplement to

the CBA")4.

	Similar to the federal courts' interpretation of the matter, the LCA in

this case is not a separate agreement from the CBA.  The collective bargaining

agreement provided the framework for Casanova's LCA.  For example, under the

LCA, in lieu of being terminated, Casanova was given the opportunity to

address his alleged alcohol and/or drug dependency problems by participating

in the fire department's employee assistance program referenced in section B1,

article VI, of the CBA.  This section of the CBA states in relevant part that

"[t]he Department has historically maintained an Employee Assistance Program

to assist employees who may suffer from alcoholism, drug dependency, or other

illnesses which should be treated."  This section also indicates that

nonprobationary employees are entitled to enter into last chance agreements. 

Thus, it is clear that the City's alcohol and substance abuse policy relating

to firefighters was the result of collective bargaining between the City and

the Union.  Without the protections contained in the CBA, Casanova would not have had the opportunity to enter into a last chance agreement to save his

job.

	Therefore, since Casanova's LCA is technically a supplement to the

collective bargaining agreement and the arbitration clause giving rise to the

arbitral proceedings is found only in the CBA, the only way that Casanova

would have standing to contest the arbitral award would be if he were a party

to the collective bargaining agreement or he was able to show that the Union

breached its duty of fair representation.

	Casanova is not a party to the CBA and accordingly he does not have

standing to bring suit to vacate the arbitral award on this basis.  Our

supreme court has determined that under section 8 and section 16 of the Labor

Act (5 ILCS 315/8, 16 (West 1996)), only parties to a collective-bargaining

agreement, such as bargaining representatives and employers may bring suit in

a circuit court to vacate an arbitral award. Stahulak v. City of Chicago, 184 Ill. 2d 176, 180, 703 N.E.2d 44 (1998).  Section 16 of the Labor Act provides:

		"After the exhaustion of any arbitration mandated by this Act or

any procedures mandated by a collective bargaining agreement, suits for

violation of agreements * * * between a public employer and a labor

organization representing public employees may be brought by the parties

to such agreement in the circuit court in the county in which the public

employer transacts business or has its principal office." 5 ILCS 315/16

(West 1996).     

	Section 8 of the Labor Act provides in relevant part that "[t]he

grievance and arbitration provisions of any collective bargaining agreement

shall be subject to the Illinois 'Uniform Arbitration Act.'" 5 ILCS 315/8 (West 1996).  And section 12(a) of the Uniform Arbitration Act provides that

"[u]pon application of a party," the circuit court shall vacate an award under

certain enumerated circumstances. 710 ILCS 5/12(a)(1) through (a)(5) (West

1994).

	The supreme court has held that pursuant to sections 8 and 16 of the

Labor Act, section 12(a) of the Uniform Arbitration Act permits arbitral

awards to be challenged only by the parties to the collective bargaining

agreement and not individual employees. Stahulak, 184 Ill. 2d at 180.  In Stahulak, the supreme court concluded that in exchange for the benefits provided by the collective bargaining agreement, individual employees gave up

their rights to bargain with the City. Stahulak, 184 Ill. 2d at 184.  The supreme court went on to state that if an individual unionized employee was

allowed to freely seek judicial review of an arbitral award, "'the settlement

machinery provided by the contract would be substantially undermined, thus

destroying the employer's confidence in the union's authority and returning

the individual grievant to the vagaries of independent and unsystematic

negotiations.'" Stahulak, 184 Ill. 2d at 184, quoting Vaca v. Sipes, 386 U.S. 171, 191, 17 L. Ed. 2d 842, 858, 87 S. Ct. 903, 917 (1967).  Consequently, the

supreme court has held that "individual employees represented by a union

should only be allowed to seek judicial review of an arbitration award if they

can show that their union breached its duty of fair representation." Stahulak, 184 Ill. 2d at 184.

	In the instant case, there are two reasons why Casanova cannot show that

the Union breached its duty of fair representation.  First, Casanova's

petition fails to allege that the Union breached its duty of fair representation.  And second and more important, this issue was decided

adversely to Casanova by the Labor Board, which found that the Union did not

breach its duty of fair representation to Casanova when it declined to bring a

challenge to the arbitral award in the circuit court.  The Labor Board's

decision was upheld by this court in Casanova v. Illinois Labor Relations Board Local Panel, No. 1-01-0313 (2001) (unpublished under Supreme Court Rule 23), and thereafter, Casanova's petition for leave to appeal the Rule 23 order

to the supreme court was denied.

	Consequently, the City contends that under the doctrine of collateral

estoppel, the Labor Board's decision bars Casanova from relitigating the

unfair labor claim in this appeal.  We agree with the City.  The doctrine of

collateral estoppel, also known as issue preclusion, bars a claim when: (1)

the issue decided in the first proceeding is identical with the one presented

in the current action; (2) there was a final judgment on the merits in the

prior adjudication; and (3) the party against whom estoppel is asserted was a

party or in privity with a party to the prior adjudication. Terry v. Watts Copy Systems, Inc., 329 Ill. App. 3d 382, 389, 768 N.E.2d 789 (2002).  In this case, all the requirements for application of collateral estoppel have been

satisfied.  First, the proceedings before the Labor Board were judicial in

nature resulting in a written decision. See Marco v. Doherty, 276 Ill. App. 3d 121, 124-25, 657 N.E.2d 1165 (1995) (concluding that administrative decisions

have collateral estoppel effect where the department's determination is made

in proceedings which are adjudicatory, judicial or quasi-judicial in nature). 

Second, the issue regarding the unfair labor claim decided before the Labor

Board is identical to the issue presented in this appeal.  Third, the Labor Board reached a final decision on the issue, which was subsequently affirmed

by this court.  And fourth, Casanova, against whom collateral estoppel is

being asserted, was a party in the earlier adjudication and was represented by

counsel.  Consequently, Casanova cannot now relitigate the unfair labor claim

in this appeal and therefore he does not have standing to bring suit to vacate

the arbitral award.

	Alternatively, the City contends that the doctrines of waiver and

estoppel prevent Casanova from claiming that his LCA gave him contract rights

independent of the CBA.  Specifically, the City maintains that Casanova waived

any contract rights he may have had under the LCA, by failing to assert these

rights before the Union took up his cause under the CBA's grievance procedure

or during the arbitration.  The City contends that if Casanova wanted to

assert independent contract rights under his LCA, he should have done so at

the beginning of the dispute by taking his grievance directly to the City and

if unsatisfied, filing an action alleging breach of contract in the circuit

court.  The City argues that Casanova's failure to take these measures gives

rise to estoppel.  We must reject the City's arguments on this issue.

	Even though Casanova's LCA is technically a supplement to the collective

bargaining agreement, the two agreements should not be construed as one

contract for the purpose of determining whether Casanova waived his rights

under the LCA or whether he should be estopped from arguing that the LCA is a

separate agreement from the CBA.  The collective bargaining agreement governs

the employer-employee relationship and resulted from negotiations between the

City and the Union.  In contrast, the LCA was the result of negotiations

between Casanova and personnel from the Chicago fire department such as employee assistance counselors and disciplinary officers.  In signing the LCA,

Casanova entered into a new contractual relationship that significantly

altered his rights under the existing collective bargaining agreement. 

Casanova was discharged for violating the terms of his LCA, not the collective

bargaining agreement.  Accordingly, the issues relative to Casanova's LCA

cannot be precluded by the doctrines of equitable estoppel or waiver.

	Casanova next contends that he had a property interest in his employment

and that the arbitrator's denial of his grievance without requiring the City

to perform a urine test to confirm the breathalyzer test results amounted to a

taking of this property interest without due process in violation of public

policy.  The due process clause of the fourteenth amendment forbids a state

from depriving any person of life, liberty, or property without due process of

law. U.S. Const. amend XIV, §1.  The constitutional guarantee of due process

encompasses both procedural and substantive rights. In re Perona, 294 Ill. App. 3d 755, 690 N.E.2d 1058 (1998) (stating that procedural due process

governs methods by which a protected interest may be deprived, while

substantive due process imposes absolute limits on the state's ability to act

without regard to applicable procedural protections).  In the present case,

Casanova maintains that the failure to have a confirmatory urine test violated

his procedural due process rights.

	To sustain a procedural due process claim, Casanova must show: (1) a

cognizable property interest; (2) a deprivation of that property interest; and

(3) a denial of due process. Buttitta v. City of Chicago, 9 F.3d 1198, 1201, 1206 (7th Cir. 1993).  In the present case, the LCA provided Casanova with a

limited, but enforceable property interest in his continued employment with the Chicago Fire Department. See, e.g., Medellin v. Chicago Transit Authority, No. 93 C 6091, (N.D. Ill. 1996) (concluding that last chance agreement

provided a Chicago Transit Authority employee with a limited but enforceable

property interest in his continued employment); Prato v. Vallas, 331 Ill. App. 3d 852, 867-68, 771 N.E.2d 1053 (2002) (noting that a "public employee who may

be terminated only for cause has a property interest in his employment within

the meaning of the due process guarantees of the United States and Illinois

Constitutions").  Casanova's discharge by the Chicago fire department after

testing positive for alcohol constituted a deprivation of his property

interest. Medellin, slip op. at ___.  However, the factual circumstances in this case do not indicate that Casanova was denied due process of law.

	Due process is a flexible concept whose procedures depend upon the

particular circumstances of each case. Wendl v. Moline Police Pension Board, 96 Ill. App. 3d 482, 486, 421 N.E.2d 584 (1981).  In general, due process

requires notice of the charges and an opportunity for a hearing appropriate to

the nature and gravity of the charges. Prato, 331 Ill. App. 3d at 868.  To determine whether due process is satisfied in a particular case, this court

must apply the three-part test articulated by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903 (1976).  This test requires the court to balance:

	"First, the private interest that will be affected by the official

action; second, the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards; and finally, the

Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural

requirement would entail." Mathews, 424 U.S. at 335, 47 L. Ed. 2d at 33, 96 S. Ct. at 903.

	In essence, Casanova's contention is based upon the second factor. 

Casanova basically argues that the risk of erroneous deprivation of his

property interest was high, because the medication he was taking contained

alcohol and therefore the need for accuracy and reliability required that a

confirmatory urine test be given to validate the accuracy of the breathalyzer

test results.  There is some logic to Casanova's argument.  General Order 87-

008 allows for a second confirmatory test for drugs, but not for alcohol. 

Such a procedural safeguard against mistaken drug test results suggests that

under certain circumstances there might be value in having confirmatory tests

for alcohol. See, e.g., People v. Orth, 124 Ill. 2d 326, 336, 530 N.E.2d 210 (1988) (noting that while breathalyzer tests are generally valid, they are not

foolproof).  In many instances, in addition to taking a breathalyzer test an

employee also gives a urine specimen, so it is debatable whether under such

circumstances an employer's interest in managerial efficiency would outweigh

the value of a confirmatory urine test for alcohol where the employee is

taking a prescribed medication containing alcohol.  Nonetheless, the City and

Union have agreed that breathalyzer tests should be the method for testing

alcohol levels.

	Courts have determined that the risk of error is low where a termination

decision turns squarely on the results of routine, standardized medical and

clinical procedures conducted by qualified unbiased healthcare specialists.

Buttitta, 9 F.3d at 1206, citing Mathews, 424 U.S. at 344, 47 L. Ed. 2d at 38, 96 S. Ct. at 907.  In the present case, there was no evidence presented that

the breathalyzer machine was working improperly or that the tests were

improperly administered. See, e.g., People v. Orth, 124 Ill. 2d 326, 340 (1988) (concluding that in DUI cases, the foundational requirements for

admission of breathalyzer results include evidence that: (1) the tests were

performed according to the uniform standard adopted by the Illinois Department

of Public Health; (2) the operator administering the tests was certified by

the Department; (3) the machine used was a model approved by the Department,

was tested regularly for accuracy, and was working properly; (4) the motorist

was observed for the requisite 20 minutes prior to the test and, during this

period, the motorist did not smoke, regurgitate, or drink; and (5) the results

appearing on the printout sheet can be identified as the tests given to the

motorist).  The record indicates the breathalyzer tests were conducted by

running two "blanks" which yielded results of .00%, followed by a blow from

Casanova at 9:46 a.m. yielding a result of .04% and a blow at 9:59 a.m. which

also yielded a result of .04% alcohol level.  In addition, uncontroverted

evidence was presented that even accounting for Casanova's impaired absorption

of alcohol due to hepatitis, the small dosages of cough syrup he claimed he

consumed before taking the breathalyzer tests would not have accounted for the

.04% positive test results.  On these facts, we cannot say that the City's

failure to give Casanova a urine test to confirm the results of his

breathalyzer tests violated his procedural due process rights.

	Despite the breathalyzer test results, Casanova contends that "public

policy" requires the use of a confirmatory urine test.  We must reject

Casanova's contention.  "Courts have crafted a public policy exception to vacate arbitral awards which otherwise derive their essence from a collective-

bargaining agreement." American Federation of  State, County & Municipal Employees v. Department of Central Management Services, 173 Ill. 2d 299, 306, 671 N.E.2d 668 (1996).  In order to vacate an arbitral award on public policy

grounds, the contract, as interpreted by the arbitrator, must violate some explicit public policy. American Federation, 173 Ill. 2d at 307.  The public policy exception is narrow and is invoked only when a violation of public

policy is clearly shown. American Federation, 173 Ill. 2d at 307.  In addition, the public policy must be "'well-defined and dominant' and

ascertainable 'by reference to the laws and legal precedents and not from

generalized considerations of supposed public interests.'" American Federation, 173 Ill. 2d at 307, quoting W.R. Grace & Co. v. Local Union No. 759, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 307, 103 S. Ct. 2177, 2183 (1983).

	The application of the public policy exception requires a two-step

analysis.  The threshold question is whether a well-defined and dominant

public policy can be identified.  If so, the court must then determine whether

the arbitrator's award, as reflected in his interpretation of the agreement,

violated the public policy. American Federation, 173 Ill. 2d at 307-08.  Casanova contends that General Order 87-008 violates public policy because it

does not require a urine test to confirm the results of a breathalyzer test. 

However, Casanova has failed to identify any law or judicial decision

identifying a well-defined and dominant public policy requiring the City to

perform a urine test to confirm breathalyzer test results.  There is no public

policy against the use of breathalyzer test results.  As previously mentioned,

the City and Union have agreed that the breathalyzer test is the preferred method for measuring alcohol levels.

	Accordingly, for the reasons set forth above, the judgment of the

circuit court of Cook County is affirmed.

	Affirmed.

	SOUTH, P.J., with WOLFSON, J., concur.