Arbitrator Jay Fogelberg has upheld the termination of a City of Minneapolis employee who tested positive for a controlled substance a second time. City of Minneapolis and Teamsters Local 320. Grievant had been suspended for three days in 2005 after testing positive and was charged with operating city equipment while under the influence of marijuana. He was required to successfully complete a treatment program and was warned that any subsequent positive test result could subject him to job termination.
In August of 2011, Grievant was notified that he was required to undergo a random drug test. He notified his management that he knew he would test positive for marijuana. This prediction was confirmed by the test results. As a result, his employment was terminated. Arbitrator Fogelberg agreed with the City’s assertion that Grievant had engaged in “gross misconduct”. While noting that the term was not defined in the applicable rules, the arbitrator concluded:
There is no dispute that the grievant, with full knowledge he would fail a drug test for marijuana on the day in question, was about to climb into a 48,000 pound vehicle and operate it on a public road, when he received the call to be tested. Under the circumstances, it would take a quantum leap of faith in my judgment to exclude such behavior from the definition of “gross misconduct”.
The arbitrator also rejected the Union’s argument that Grievant had not reported to work “under the influence” since the effects of the marijuana had worn off by the time he reported to work. He noted that the City’s policy described the term to mean the presence of a drug or alcohol at or above the level of a positive test result.
Finally, the arbitrator was unpersuaded that the Grievant’s length of service and relatively clean work record was sufficient to support reinstatement, observing “Of and by itself, his work history does not constitute a vaccination against discipline. The multiple rule and policy infractions the Grievant committed in 2011, relative to the safe performance of his job, and the potential exposure to liability that the City risks, outweigh any other mitigating factor…”