A recent post discussed a challenge to an arbitrator’s award where the Company claimed that the arbitrator ignored the violation of its zero tolerance policy for drug use and improperly reinstated an employee, albeit without back pay. Zero tolerance, a drug test and just cause. A similar issue is raised by a complaint filed by Colonial Wholesale Beverage Company seeking to vacate an award of Arbitrator Lawrence Holden. The dispute arose from the termination of an employee who tested positive for cocaine during a random drug test.
Grievant acknowledged having used cocaine on a Saturday evening, August 10, but maintained that this was a one time event caused by his celebration of obtaining his “dream house.” His first report to work following the Saturday night use was Tuesday, August 13, and he worked through August 20 when he was notified that a random drug test administered on August 16 had tested positive.
Following receipt of the test results, the Company terminated the employee pursuant to what it described as its zero tolerance policy for drug use and for reporting for work under the influence of drugs or alcohol. It relied on a provision of the cba affirming that “the Union and the Employer agree that employees shall not engage in the unlawful use, purchase or sale of illicit drugs,” language in its Employee Handbook that prohibits employees from reporting to work or working while under the influence of drugs or alcohol and that “an employee who engages in the above prohibited conduct is subject to disciplinary action up to and including immediate termination.”
The Union challenged the existence of a zero tolerance policy, arguing that the Company maintained a second chance policy for employees who successfully completed a post termination drug treatment program, and that the Employee Handbook indicated the Company retained disciplinary discretion when an employee failed a drug or alcohol test. Such discretion, it argued, was inconsistent with a zero tolerance policy.
The issue submitted to Arbitrator Holden was
Did the Employer have just cause to terminate the employment of the grievant … on or about August 26, 2019? If not, what shall be the remedy?
In his award, Arbitrator Holden noted that it was undisputed that grievant had tested positive for the presence of cocaine in his system. He then observed
The dispute in this case is over what should be the appropriate outcome for the grievance in light of his positive test result.
He concluded that the evidence established that the Company “has retained discretion, bound by the contractual principle of just cause decision-making, as to the manner in which it will deal with violations of the substance abuse policy.” He based this conclusion in part on the absence of any reference to a “zero tolerance policy enforced by summary discharge” and the absence of illicit drug use from the list of “cardinal sins” in the cba for which no written notice must be given prior to discharge. He also observed that
If there were a zero tolerance policy in place, more than likely the Employee Handbook would have said so by stating that any employee who participated in substance abuse shall be terminated immediately.
Resolving another contested issue, he found that a Notice issued by a previous Human Resources Director describing a “one chance to rehab” policy had been posted in the workplace despite testimony from Company witnesses that they were unfamiliar with this Notice and had never observed it.
Arbitrator Holden found that grievant had violated the contractual prohibition on use of illicit drugs, but he found no evidence that he was under the influence at work. He ordered that grievant be reinstated without back pay.
The Company’s effort to have the award vacated asserts that the Arbitrator improperly ignored the stipulated issue by focusing on the question of remedy rather than “the limited question posed to him by the parties, which was whether the Plaintiff had just cause to terminate [grievant].” It asserts also that he ignored the contract’s grant of authority to the Company to relieve employees for legitimate business reasons and the discretion to terminate an employee without warning “for violating the broad catch-all of ‘any serious matter’.” It alleges that the Arbitrator exceeded his authority under the cba, improperly and contrary to the cba “added to or modified” then agreement and requests that the Court vacate the Award.