Sunday, September 20, 2015

Zero tolerance doesn't support termination but arbitrator imposes a last chance agreement

The Greater Egg Harbor Regional High School District sought  to terminate the tenure of a computer operator/secretary. In doing so the District relied on its "zero tolerance" policy relating to alcohol.

The Respondent ('"grievant") had been employed for approximately twenty years. In March of 2015 she was found to have consumed alcohol during school hours while on school premises. This was the only incident of misconduct in the workplace.

An investigation was begun but was delayed somewhat when grievant entered an inpatient employee assistance program. Upon completion of that program grievant was cleared to return to work without restriction.

Arbitrator Ernest Weiss rejected the District's efforts to terminate grievant's tenure. He noted that there was no evidence supporting the Superintendent's belief that grievant had been under the influence, and that no fitness for duty exam had been requested. Arbitrator Weiss observed:

Given her twenty years of otherwise unblemished behavior, I was not persuade by Superintendent Keenan's testimony regarding the possibility of repeated future behavior. There is no showing that her rehabilitated status would not hold under a last chance agreement.

Accordingly he included as part of his award a last chance agreement which he directed the parties to enter into. Pursuant to the lca grievant agreed "never again to imbibe in the consumption of alcohol during school hours or on school property." The agreement also provided for testing, with immediate termination resulting from a blood alcohol content over .02% "without tenure charges and subject only to the Employee's right to see that the test was properly performed."

Arbitrator Weiss' award can be found here.  Issues arising under a last chance agreement imposed by the arbitrator are discussed in Reinstatement with Conditions-Last Chance Awards

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