Facebook posting exacerbates misconduct, Arbitrator upholds termination

On February 21, 2013 a Bethlehem, PA firefighter notified the Department that he would be using sick leave the following day. Pursuant to the cba between the City of Bethlehem and the International Association of Firefighters, Local 735, employees utilizing sick leave "are required to remain in their homes for rest and recuperation." They were authorized to leave home only for healthcare related appointments or activities relating to treatment of their illness or for family emergencies. Notwithstanding this provision, the firefighter left his home on the 22nd to attend a local fair, and posted pictures from the fair on Facebook. He also visited a political tent at the fair.

The firefighter also called in sick on the 23d. He left his home that day to go to a pharmacy to fill a prescription. On his way, however, he stopped at a local firehouse. After picking up the prescription, he went to a local bar/restaurant. After leaving the bar he was involved in a serious accident and it was determined that his blood alcohol content was more than three times the legal limit. Following an investigation his employment was terminated.

 At arbitration the City acknowledged that it would not have terminated grievant simply for leaving his home on the 22nd and 23rd, but "considered his entire course of conduct"  in concluding that he had violated both the cba and the City's Code of Ethics. It also acknowledged that it would not have terminated his employment solely for a DUI arrest, but again noted that the termination was for the entire course of conduct.

Arbitrator Walt De Treux denied the grievance and found that the City had just cause for its actions.

Initially Arbitrator De Treux concluded that Grievant had not only disregarded the contract's restrictions on leaving home while on sick leave, but he had advertised his disregard by his Facebook postings. The Arbitrator noted:

[Grievant] was terminated for both sick leave violation and the conduct in which he engaged while away from his home that brought discredit to [Grievant] and the City in violation of the Code of Ethics. As noted, the sick leave violations-leaving home- would warrant discipline significantly less than discharge, perhaps a warning or minimal; suspension. But [Grievant] left his home on August 22, and as the City describes it , he 'documented and advertised' his travels by posting pictures of the fair on Facebook and visiting the political tent. In so doing he showed utter disregard for the contractual command to remain home while on sick leave. It is one level of violation if he went to a neighbor's house or attended a sporting event for a child, but the Grievant escalated the severity of the violation by documenting and advertising his activities.

Arbitrator De Treux also found Grievant's actions on the 23d continued to demonstate a "blatant disregard"  for the contractual obligation to remain at home while on sick leave. The Arbitrator distinguished other cases in which off duty employees with DUI arrests were not dismissed, finding that Grievant was not "off duty" in the traditional sense but was receiving sick leave benefits on the condition that he remain at home. The Arbitrator concluded that the conduct engaged in by the Grievant was more similar to that involving an on duty employee.

Finally, the Arbitrator rejected the Union's reliance on Grievant's 17 years with the Department as a reason to reduce the discipline, observing that this was one of the "uncommon" cases where Grievant's experience weighed against him. Arbitrator De Treux determined "[a]s a long term employee and a former union official, [Grievant] knew or should have known the responsibility to adhere to the contract and Code of Ethics and the consequences of abdicating that responsibility."

A slightly redacted copy of the Arbitrator's award can be found here.

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…”