Termination for second positive test result upheld

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…”

Reinstatement of municipal employee who failed drug test not contrary to public policy

A Connecticut appeals court has affirmed the lower court’s refusal to set aside an arbitration award reinstating a town highway worker who twice failed a town mandated drug test. Both test failures resulted from alleged failure to comply with testing policy rather than evidence of actual drug usage.  Town of North Branford v. Daniel Pond et al. Grievant was terminated after leaving the room prior to producing an acceptable urine sample. Pursuant to the Town’s policy, this was counted a test failure. This was grievant’s second test failure and the Town terminated his employment.

The parties submitted to arbitration the issue of whether the Town “terminated [Grievant] for just cause consistent with the contract? If not, what shall the remedy be?” The arbitrator concluded the Town did not have just cause for the termination but directed Grievant to take and pass a drug test at his own expense in order to return to work, with no back pay or benefits.

The Town sought to set aside the award, arguing that the award was contrary to public policy, and that the arbitrator had exceeded his authority and, in any case, the award was not sufficiently final and definite to be enforced.

Like the lower court, the appeals court, relying in significant part on the US Supreme Court’s decision in Eastern Associated Coal Corp. v. United Mine Workers, found no violation of public policy in the arbitrator’s award. The court noted that the award removed Grievant from his safety sensitive position until he took and passed another drug test. Accordingly the court rejected the attempt to overturn the award on public policy grounds.

 The Court also rejected the Town’s other theories for setting aside the award. It found that while the contract reserved to the Town “full control of the policies, practices, procedures, and regulations with respect to employees” and that the Town’s “actions with respect to such rights and responsibilities are not subject to review, except as specifically abridged or modified by the agreement”, the agreement also provided that all discipline must be supported by just cause. Because the award thus drew its essence from relevant provisions of the agreement there was no basis for setting it aside. Finally the court rejected the claim that the award was insufficiently definite or final for enforcement. While it did not prescribe the manner or method by which grievant was to be tested before he was returned to work, neither did the Town’s policy, which contained similar language for employees temporarily relieved from duties because of a failed drug test.

The lower court decision can be found here.