These topics are addressed in two recent arbitration awards.
In Minnesota Teamsters Public and Law Enforcement Union, Local No. 320 and ISD #200
Arbitrator James Abelsen overturned the dismissal of a school custodian accused of smoking marijuana on school grounds. Grievant had been working his regular shift and was attempting to unclog a toilet using a plunger and chemicals. After completing that project, grievant stepped outside where he remained for approximately two minutes. When he returned, several other employees reported the smell of marijuana coming from grievant. Grievant denied having smoked marijuana, attributing any smell to the project he had just completed. The School Board conducted an investigation and ultimately terminated his employment. The termination was submitted to arbitration and arbitrator Abelsen found "the only reasonable conclusion ... is that the District clearly established that the Grievant violated School District policy." Nevertheless, he further concluded that the termination was not supported by just cause, observing:
The employer does not have an articulated policy of zero tolerance for violations of this nature, but in fact has a policy which favors a progressive form of discipline for first offenders. Nevertheless, the employer chose the ultimate penalty of termination and offered no reasonable explanation for that decision when a lesser form of discipline was available and provided for in the employer's policy. To discharge the Grievant under these circumstances is unfair and unjust.
A similar result was reached by Arbitrator Timothy Hatfield in Town of Framingham and Massachusetts Laborers' District Council. In that case, the Town terminated the employment of a crossing guard who had called in sick but who was found to be working for a different employer during the same shift. While finding it undisputed that grievant had called in sick and sought to use paid sick time for the time she was working for a different employer, the Arbitrator found termination too severe a penalty. He noted grievant's fifteen year employment history and found termination "not proportional to the offense committed." He rejected the Town's reliance on arbitration awards it claimed supported its case, noting:
These cases are distinguishable, however, as they involve either instances of long-term abuse of worker's compensation, or sick leave abuse where dishonesty and/or sick leave falsification is directly written into the collective bargaining agreement as a terminable offense. Here, in comparison, Section 18.2 of the Personnel Bylaws states that employees who fraudulently report illness to secure sick leave with pay shall be subject to disciplinary measures up to and including discharge. Discharge is not the contractually mandated outcome.
Arbitrator Hatfield reduced the termination to a ten day suspension.