Monday, March 5, 2012

Reinstatement of municipal employee who failed drug test not contrary to public policy

A Connecticut appeals court has affirmed the lower court’s refusal to set aside an arbitration award reinstating a town highway worker who twice failed a town mandated drug test. Both test failures resulted from alleged failure to comply with testing policy rather than evidence of actual drug usage.  Town of North Branford v. Daniel Pond et al. Grievant was terminated after leaving the room prior to producing an acceptable urine sample. Pursuant to the Town’s policy, this was counted a test failure. This was grievant’s second test failure and the Town terminated his employment.

The parties submitted to arbitration the issue of whether the Town “terminated [Grievant] for just cause consistent with the contract? If not, what shall the remedy be?” The arbitrator concluded the Town did not have just cause for the termination but directed Grievant to take and pass a drug test at his own expense in order to return to work, with no back pay or benefits.

The Town sought to set aside the award, arguing that the award was contrary to public policy, and that the arbitrator had exceeded his authority and, in any case, the award was not sufficiently final and definite to be enforced.

Like the lower court, the appeals court, relying in significant part on the US Supreme Court’s decision in Eastern Associated Coal Corp. v. United Mine Workers, found no violation of public policy in the arbitrator’s award. The court noted that the award removed Grievant from his safety sensitive position until he took and passed another drug test. Accordingly the court rejected the attempt to overturn the award on public policy grounds.

 The Court also rejected the Town’s other theories for setting aside the award. It found that while the contract reserved to the Town “full control of the policies, practices, procedures, and regulations with respect to employees” and that the Town’s “actions with respect to such rights and responsibilities are not subject to review, except as specifically abridged or modified by the agreement”, the agreement also provided that all discipline must be supported by just cause. Because the award thus drew its essence from relevant provisions of the agreement there was no basis for setting it aside. Finally the court rejected the claim that the award was insufficiently definite or final for enforcement. While it did not prescribe the manner or method by which grievant was to be tested before he was returned to work, neither did the Town’s policy, which contained similar language for employees temporarily relieved from duties because of a failed drug test.

The lower court decision can be found here.

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