Sunday, August 28, 2016

Drugs in the workplace, reinstatement and public policy. Connecticut Supreme court upholds arbitrator's award

A maintenance employee of the University of Connecticut Health Systems was caught smoking marijuana on the Health Center premises during his scheduled shift. He was found to be in possession of approximately three quarters of an ounce of marijuana. His employment was terminated and the propriety of that action was submitted to arbitration for resolution

In his award, Arbitrator Jeffrey Selchick rejected grievant's explanations for his actions and found  that he had deliberately taken the marijuana to work so he could smoke it there. He concluded, however, that termination was too severe and not supported by just cause. He noted that the Health Center's policy permitted, but did not require, termination for drug related offenses. He also found mitigation in grievant's fifteen years of discipline free employment prior to the incident. Finally, while noting that grievant's job duties raised some safety and security concerns, he concluded that grievant's return to the workplace would not create a danger to persons or property. The arbitrator reduced the termination to a six month suspension, ordered that grievant be subject to random drug and alcohol test for a one year period, and imposed a last chance provision on the reinstatement.

The Health Center sought to vacate the award, contending that it was contrary to public policy. The trial court (here) granted the request to vacate, finding the reinstatement order contrary to a strong public policy against drug use in the workplace.

The Connecticut Supreme Court has now reversed that decision, effectively confirming the arbitrator's award.  State of Connecticut v. Connecticut Employees Union Independent et al.   The Court applied the standards it developed in Burr Road Operating Co. II. v. New England Health Care Employees Union to assess whether an arbitrator's award reinstating an employee was contrary to public policy. The Burr Road decision, issued after the arbitrator's award and the trial court's decision in this case, synthesized four principal factors for use in making that determination:

(1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant's conduct; and (4) whether the grievant is incorrigible.

Applying that test here, the Court determined that neither the Connecticut nor the federal drug free work place policies compelled termination as the only appropriate penalty for drug related misconduct. Regarding the second factor, the Court agreed with the conclusion of the arbitrator that grievant's misconduct "was not of such a nature that his return to work would endanger persons or property." The Court found that neither of these two factors supported a conclusion that the award was contrary to public policy.

The Court found the third factor "essentially ... neutral" noting that the risks created by grievant's misconduct jeopardized mostly him rather than the Health Center's clients or other parties. Finally, the Court accepted the arbitrator's conclusion that grievant was unlikely to engage in similar conduct in the future, especially given the significant discipline imposed (a six month suspension), the random drug and alcohol testing, and the last chance condition on his reinstatement. Nor would the award encourage other employees to engage in similar conduct.

The Court summarized its holding:

In closing, we emphasize that public policy based, judicial second-guessing of arbitral awards reinstating employees is very uncommon and is reserved for extraordinary circumstances, even when drug or alcohol related violations are at issue. Our general deference to an experienced arbitrator’s determinations regarding just cause and the appropriate remedy is vital to preserve the effectiveness of an important and efficient forum for the resolution of employment disputes. If an employer wishes to preserve the right to discharge employees guilty of misconduct such as that at issue in this case, thereby removing the matter from an arbitrator’s purview, it remains free to negotiate for the inclusion of an appropriate provision in the collective bargaining agreement that would achieve that result.

Justice Espinosa concurred but expressed a concern that rigid application of the Burr Road test may encourage arbitrators to "self insulate" their awards from review by adhering closely to the Burr Road formula and making an explicit finding on the absence of a risk of recidivism. She also cautioned that failing to consider more prominently the effect of an arbitrator's award on other employees may send an unacceptable message to other employees and the public concerning the conduct in question.

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