Zero tolerance, a drug test and just cause

 The Eleventh Circuit reversed the decision of a District Court and upheld an arbitration award (here) reinstating an employee terminated pursuant to the Company's Zero Tolerance policy following a positive drug test. Georgia-Pacific Consumer Operations LLC, v. United Steel  Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union, Local 9-0952.

The cba in issue provided:

 The Company will establish a "zero tolerance" random drug testing program for all Company employees at the Naheola facility.

The Company's Corporate Policy relating to random drug screening stated:

All persons who test positive for any substances listed in Section 1 (Introduction) will be terminated, unless otherwise prohibited by a collective bargaining agreement or applicable law. All terminations must be coordinated by the location/division human resources manager.

Grievant was selected for a random drug test. The test showed a positive result for codeine  When informed of the result, grievant explained that he may have mistakenly taken some of his wife's prescription cough syrup instead of his own, non prescription, one. Because grievant could not produce a prescription in his own name for cough medicine containing codeine his employment was terminated under the Company's Zero Tolerance Policy.

The termination was grieved and submitted to Arbitrator James Odom for resolution. In his award, Arbitrator Odom described the dispute:

 Does the Contract require the Company to demonstrate just cause in order to terminate an employee who has tested positive for opiates during a random drug screen?

The Company argued that under its Zero Tolerance Policy the positive test result itself established the required evidence of just cause. The Union maintained that any discipline administered under the contract was required to meet the just cause standard, which required an evaluation of all the circumstances. 

Arbitrator Odom concluded:

Obviously, maintaining a safe, drug-free work place is a necessary and positive goal of the Company. And I understand the theory that a well-advertised, strictly interpreted zero tolerance policy requiring every employee who tests positive on a random drug screen be immediately discharged could have a greater tendency to reduce the presence of drugs in a workplace than a practice that is less forceful. But is an inflexible “test positive and you are terminated" rule enforceable? More to the point, under the parties Contract, is such a policy enforceable with regard to the grievant and given his circumstances? 

Section 2 of Article 8, Rights of Management of the Contract limits Management's right to discipline and discharge employees to just cause. As a labor arbitrator, I am unable to interpret as reasonable or just any decision to terminate that purposefully ignores the circumstances and causes surrounding the violation

Applying that standard, Arbitrator Odom determined that there was not just cause for the termination.  He found grievant's use of his wife's cough medicine was not intentional, and there was no evidence that he was under the influence of drugs while at work. 

While finding termination too severe, Arbitrator Odom did find that grievant had made "the error of mistake" and was responsible for the negative results. He reduced the termination  to a ninety day suspension and ordered grievant's reinstatement.

 The Company sought to vacate the award as in excess of the Arbitrator's authority in ignoring what it believed to be the contractual requirement that a positive drug result in termination. The Company's complaint can be found here. The Magistrate, in a decision adopted by the District Court (here), agreed with the Company and vacated the Award. The Magistrate concluded that the Arbitrator's finding that grievant had engaged in conduct that was defined in the cba as an offense subjecting him to discharge constituted an "implicit finding" of just cause which the Arbitrator was not free to ignore. 

On the Union's appeal, the Eleventh Circuit overturned that decision. The Court found that the Arbitrator was within his authority in resolving the interplay between the just cause requirement of the cba and the language relating to the Company's random drug test program:

Turning to Georgia-Pacific's position, [the arbitrator] distilled it as "[Irvin's] positive test is the required evidence of just cause." Then, the arbitrator characterized the part of the contract concerning Georgia-Pacific's the random drug-testing program as a "commitment" and asked whether Georgia-Pacific's interpretation of the policy made to fulfil that commitment was "under the Parties' contract, . . . enforceable with regard to [Irvin] and . . . his circumstances?"
The arbitrator's answer was no. Whether that's right or wrong doesn't matter for our purposes—all that matters is that the arbitrator's answer flowed from his interpretation of the contract. The arbitrator emphasized that another provision of the contract limited Georgia-Pacific's power "to discipline and discharge employees to just cause." He then explained why he couldn't conclude that "just cause" existed under these circumstances. If his efforts had simply been free-wheeling policymaking, then vacatur would have been justified. But they weren't, and so it wasn't.

The Court rejected the Company's, and the District court's reliance on earlier cases finding an Arbitrator exceeded his authority by ignoring "express (and apparently complete) terms of a drug testing policy spelling out each provision in some detail." It found the language in this case "much less specific, as one might expect for an 'element' of a plan that the parties agree will be implemented later." Noting other detailed provisions of the cba relating to drug use and drug testing, it observed that the parties knew how to bargain clear, specific language that synthesized drug testing plans with the just cause provision, the Court found their failure to do so here left it within the Arbitrator's authority to resolve that relationship. 

Back pay - Arbitrator rejects assumption of increased child care responsibilities as mitigation of back pay damages

 The New Hampshire Union Leader reports on the termination of a Manchester NH police officer and the subsequent arbitration of that discipline. City ordered to rehire 'proven racist' cop; status uncertain

The officer was dismissed for sending racially insensitive text messages to his wife on a Department issued cell phone. The newspaper links to voluminous documents related to the case, including the arbitrator's award on the merits as well as a subsequent award on back pay issues. 

Arbitrator Gary Altman overturned the termination, finding the penalty too severe. He converted the discipline to a thirty day suspension and ordered grievant's reinstatement. He further ordered that:

... grievant shall not be awarded back pay for the period of this thirty day suspension. Under this award the grievant is to be made whole for lost compensation until he returns to work pursuant to this Award, minus thirty days’ pay for the period of the suspension. In addition, his back pay shall be offset by any compensation that the grievant received during this time period. 

The Department refused to reinstate the grievant, and also claimed that grievant had failed to mitigate his damages by failing to make reasonable efforts to find seek employment after his termination. It was undisputed that grievant had failed to seek alternative employment during the period he was no longer working for the City of Manchester. Grievant noted that following this termination he assumed primary caregiver responsibility for his two sons, providing the opportunity for his wife to increase her hours and, presumably her income. According to grievant:

“My wife adjusted her work hours and schedule following termination, no longer being able to serve as primary caregiver for them”, and that his wife now “works as a nurse practitioner and adjunct professor of nursing. Those employment responsibilities combined, having been adjusted post termination, have her now working 7 days a week.”

The  dispute between the Department and the Union concerning the appropriate calculation of back pay due grievant was submitted to the arbitrator for resolution. Manchester Police Patrolman's Association and City of Manchester.

Arbitrator Altman separated the back pay period into three district time periods. Initially he noted that at the time of grievant's termination the Department also sought to have the County Attorney pursue criminal charges against grievant.  The County Attorney ultimately did not pursue those charges. For this initial period, Arbitrator Altman concluded that the pendency of potential criminal charges seriously limited grievant's ability to find employment in a substantially equivalent position. He observed:  

Considering the totality of circumstances, including the position held by the grievant, and the fact that he was under criminal investigation, Mr. Brown was not required to have sought employment during the time period he was under criminal investigation. In other words, it was reasonable for Mr. Brown to have waited until the criminal investigation was concluded for him to make any attempt to look for substantially similar employment.2 

___
2 The obligation to seek employment is not for any and all positions. Rather, an employee’s obligation is to seek employment in a position suitable to his background and experience, and one that provides comparable pay and benefits.

The second time period encompassed the period between the time the County Attorney's office advised that it would not pursue criminal charges and the date of the Arbitrator's award. For this period, Arbitrator Altman concluded that grievant had failed to mitigate, and denied back pay:

Circumstances changed after it was clear that the County Attorney decided not to pursue criminal charges. Undoubtedly, it would have been difficult for Mr. Brown to find work in the field of law enforcement after his discharge, but the difficulty of finding such position does not excuse him from making at least some effort, to look for work. It is the general rule in back pay cases that an employee must make at least reasonable efforts to find new employment, which is substantially equivalent to the position lost and is suitable to a person of his or her background and experience.
It is not as if Mr. Brown had to actually find employment but he must, at least, have made an effort to search for employment. It would be inappropriate to allow an employee to collect back pay during a period when the employee made no effort to mitigate damages by seeking employment and essentially dropped out of the labor market.

Arbitrator Altman rejected the claim that grievant's assumption of increased child care responsibilities provided a basis for his failure to seek other employment. He noted:

The fact that Mr. Brown stayed home with his minor children while his wife worked additional hours does not satisfy the duty to mitigate. By this decision, Mr. Brown totally removed himself from the workforce. I know of no cases in which a discharged employee is excused from attempting to search for work because he decides to stay home with his children.

Finally, the Arbitrator found grievant was eligible for back pay for the period following the merits award ordering his reinstatement until the City actually returned him to employment:

The City has the right to challenge the Arbitrator’s Decision directing the reinstatement of Mr. Brown, as it deems appropriate. If the City complied with the Award, however, Mr. Brown would have been reinstated and would have begun to be paid the wages and benefits due to him under the parties’ Collective Bargaining Agreement. I know of no cases in which an employee’s obligation to mitigate continues after an award of reinstatement.  

Quick hits - Union dues, self defense, and clearing a grievant's name

Arbitrator rejects City's claim the Janus supersedes dues deduction withdrawal window of cba

Arbitrator William Heekin rejected the position of a School District that the Supreme Court's decision in Janus effectively superseded a ten day "window" for withdrawal of union dues deduction authorization. Fairfield City School District Board of Education and OAPSE/AFSCME Local 4 AFL-CIO Local 205.  Grievant had signed a membership application as well as a dues deduction authorization  on August 12, 2018. That application, and the parties cba, provided for revocation of a dues deduction agreement only during a specified ten day period annually. Grievant resigned his membership, and sought to revoke his dues deduction authorization outside the contractual window.  The School Board honored that request. The Union grieved the Board's action action, disagreeing with the Board's assertion that allowing that revocation was compelled by the Supreme Court's decision.

In upholding the Union's grievance, Arbitrator Heekin concluded:

Janus does not supersede or interfere with the Article 38, contractual mandate of when and how authorization for a union membership dues payroll deduction is to be revoked.

Arbitrator Heekin noted that grievant had previously signed both a membership application and a dues deduction authorization. This, he found,  distinguished the case from the circumstances involved in Janus:

Simply put, Janus deals with the Constitutionality of a public sector employee who, unlike Clifford Heckler, chose to not become a union member and had not authorized the payroll deduction of an agency fee, which in accordance with his collective bargaining agreement and/or state law would be remitted to the union that represented him in collective bargaining. In other words, Janus is determined to have not addressed the subject of a public sector employee such as Clifford Heckler who, unlike Mark  Janus, voluntarily chose to become a union member and voluntarily authorized his public sector employer to deduct union membership dues from his employee paycheck. This follows where the Supreme Court in setting out its nearly fifty-page majority opinion in Janus did not once refer to the subject of a union membership dues, payroll deduction or the relationship between an employee who voluntarily becomes a union member and his/her union. Accordingly, in finding that Janus does not apply, it is held that what controls is the Article 38, contractually mandated “ten (10) day” window period and other requirements as to when and how union membership dues payroll deduction authorization can be revoked. 

Accordingly, he ordered the School Board, as requested by the Union, to "[m]ake OAPSE whole $ for [grievant's] Authorization of Dues, and begin deductions again."

Bus driver's physical altercation with passenger driven in part by self defense, termination too severe 

Arbitrator Colman Lalka was presented with a dispute arising from an incident between a bus driver and passenger. The dispute began as a verbal exchange and escalated into a physical altercation. Arbitrator Lalka largely sustained the grievance, overturning grievant's termination but agreeing there was just cause for discipline "according to [the Company's] Progressive Discipline Program." Greater Cleveland Regional Transit Authority and Amalgamated Transit Union, Local 268.

In making his determination, Arbitrator Lalka looked to the standards used to resolve claims of excessive force by police officers. Applying those standards, the Arbitrator concluded

The bus operator's primary function is to drive the bus, while providing courteous service to the Authority's patrons. In situations of irate and difficult passengers, the Authority's de-escalation protocol can be expected to be used. However, an Operator must have some leeway to exercise judgment and reasonably respond to clearly out-of-control passengers who provide the driver with a reasonable belief of bodily harm.

While rejecting the RTA's assertion that grievant's conduct warranted termination, Arbitrator Lalka concluded:

While the Grievant's actions did not rise to the level of a terminable offense, the Grievant's act of yelling to the female passenger to "shut up," nevertheless constituted a violation of the Employee Performance Code. That act was also in contravention of the Grievant's de-escalation training in dealing with difficult passengers. Just Cause exists for discipline lesser than termination and may be administered pursuant to the Authority's Positive Discipline Program.

 Arbitrator sustains grievance of Sheriff's deputy, "encourages" joint public announcement clearing grievant's name

Arbitrator Doyle O'Connor sustained the grievance of a Kalamazoo Sheriff's Deputy whose employment had been terminated for alleged neglect related to the death in custody of a jail inmate. Kalamazoo Sheriff & County and Kalamazoo County Sheriff's Deputies Association

The incident in issue arose in June, 2015. An inmate who had smuggled drugs into the jail died from an overdose while in custody. Following that death, an investigation was conducted which cleared grievant, and other employees, of any wrongdoing or negligence. In 2019, in the course of discovery in connection with a lawsuit filed by the family of the deceased inmate, an audio recording, previously believed not to have not been retained, was uncovered.  After review of the audio, the Department decided to reopen the investigation into grievant's actions. 

Arbitrator O'Connor rejected the Union's challenge to the reopening. He found that the recently discovered audio constituted new and substantive information and supported the reopening of the investigation despite the long delay. However, he found nothing in the new audio to alter the original conclusion that grievant had engaged in no misconduct or negligence. Responding to the Union's claim that the decision to terminate was driven by political consideration arising from the lawsuit, the Arbitrator noted that the evidence did not "compel" that conclusion but that "to the extent that such pressure had any impact on the Employer's decision making in this case, it would be inappropriate." While he found that there was no evidence that grievant had neglected his duties, the Arbitrator noted that there was evidence that another Deputy had neglected his duties regarding the inmate, had attempted to conceal that fact, but was not disciplined. 

Finding that the Department had failed to establish just cause for the termination he directed  grievant be offered reinstatement "immediately" and be made whole in all respects. He further noted:

Given the high public profile this case has already had, and the damage unfortunately caused to [grievant's] otherwise good reputation where in these especially fraught times he has been charged with culpability in the death of an inmate in police custody, the Parties are encouraged to endeavor to agree upon a joint public pronouncement regarding the outcome; failing at that, the Parties regardless remain free to address the matter publicly as they see fit.