An employer recently challenged an arbitrator’s award, in the United States District Court for the District of Massachusetts, which held that an employee’s positive drug test for cocaine was insufficient to prove just cause for termination.
A beverage wholesaler (“Employer”) terminated one of its drivers (“Employee”) after the Employee failed a drug test. The Employee was a member of the collective bargaining unit represented by a Union. The Employee was selected for and underwent a random drug/alcohol screen. A few days later, the Employer was notified that the Employee’s drug/alcohol screen came back positive for cocaine, revealing that the Employee had been operating one of the Employer’s vehicles under the influence of cocaine.
The Employer’s substance abuse policy provided that the Employer would immediately terminate an employee for operating one of the Employer’s vehicles or pieces of equipment while on the job and while under the influence, which included any trace of illegal drugs and alcohol above the legal limit in Massachusetts. The Employee was terminated ten days later based on the Employer’s substance abuse policy. The Employee filed a grievance contesting the termination resulting in arbitration. The arbitrator concluded that the Employer lacked just cause to terminate the Employee and the Employer filed a complaint to vacate the arbitrator’s decision in federal court.
At arbitration, the Union argued that the Employer had no just cause to terminate the Employee’s employment because the Employer did not maintain a zero-tolerance policy for drivers who reported to duty under the influence of prohibited substances. The Union also argued that the Employer had a second-chance policy for drivers who failed or refused a drug screen, based on a notice posted on an Employee bulletin board. Further, the Union argued that the Employee Handbook indicated that the Employer had discretion under circumstances where an employee failed a drug test.
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.
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.
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 firstname.lastname@example.org. 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.