Arbitrator finds positive drug test for cocaine insufficient to prove just cause for termination

The Employer cited its zero-tolerance policy regarding the use of illicit drugs. The Employer denied any knowledge of a second-chance policy posted on an Employee bulletin board. The Employer also pointed to the collective bargaining agreement between the Union and the Employer that stated, “The Union and the Employer agree that employees shall not be engaged in the unlawful use, purchase or sale of illicit drugs.” Also, the Employer argued that the Employee Handbook prohibits all employees from reporting for work or working while under the influence of drugs or alcohol and further states “an employee who engages in the above prohibited conduct is subject to disciplinary action up to and including immediate termination.” The employer highlighted the danger of an employee driving a vehicle under the influence and how such actions threatened the Employer’s safe operations.

The Arbitrator ultimately determined that the termination of the Employee was an inappropriate outcome despite the positive test result, and collective bargaining agreement indicating a zero-tolerance policy, because the Employee Handbook did not mention a zero-tolerance policy. The Arbitrator focused the decision on evidence produced by the Union that other drivers were not terminated for drug use after being charged or convicted with driving under the influence off-duty. The Arbitrator also cited evidence produced by the Union of an Employee bulletin board that stated that an employee is given one chance to rehab with a certified substance abuse professional.

Employer’s Complaint

The Employer moved to vacate the arbitration award in federal court, arguing that the Arbitrator exceeded his authority by not applying the just cause standard. The Employer’s complaint outlined that instead of determining whether the Employer had just cause based on the Agreements and Employee Handbook, the Arbitrator based his decision on the issue of whether the decision to terminate the employee was appropriate. While there are few grounds to vacate a labor arbitration award, courts will only vacate such awards if it is determined that the arbitrator exceeded his authority.

Takeaway

As shown here, even when a case may seem clear cut, like an employee being under the influence of cocaine on the job in a safety-sensitive position, the outcome may not be the anticipated outcome, and can often times be tied to actions (or inactions) by the employer. Employers should be mindful of these proceedings when drafting, reviewing, updating, or maintaining their drug policies and related work rules.  Employers should strictly enforce such policies to prevent any claims for disparate treatment that would hinder enforcement of their policy. While following this decision to see how the federal court rules, employers should review their policy, work rules, and their employment handbook to ensure uniformity and consult with experienced employment counsel if they have any questions regarding their drug policy or other aspects of their handbook.

R. Eddie Wayland is a partner with the law firm of King & Ballow.  You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com.  The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.