International Union Local No. 423
John F. Caraway, Arbitrator. Award issued June 7, 1993
ISSUES
Off-duty misconduct—Drug possession.
RELEVANT CONTRACT PROVISIONS
Scott Paper Company, Mobile, Alabama facility management and the United Paperworkers International Union and its Local Unions 423, 1421, 1575 and 1873 agree to the procedures in this policy regarding the use, sale or possession of alcohol and controlled substances. The abuse of drugs and alcohol is recognized as a major contributor to poor job performance and an unsafe work environment. It is also recognized as a disruption of family and social life and contributes to deterioration in emotional and physical well-being. It is regarded as a disease having many causes both personal and social, but a disease, nevertheless, which can he arrested and successfully treated provided the affected individual, if sufficiently motivated and rehabilitation efforts are aided by an understanding family, employer and associates. Mobile management and the local unions are committed to the objective of creating a workplace free of drug and alcohol abuse. Procedures in this policy are intended to accomplish this goal. It is not our intent to mandate morality but to take appropriate action when conduct appears to impact job performance or bring public discredit to the company, unions, or employees.
ARTICLE IV INVESTIGATION AND DISCIPLINE
Employees who engage in the unauthorized use, sale and possession of alcohol or controlled substances while on the job or on company property or are convicted by a court of law of any illegal controlled substance activity must be held responsible for this unacceptable behavior. The extent of discipline imposed will depend on many considerations. We have developed general guidelines, outlined below, that are intended to act as a deterrent to this unacceptable behavior.
GUIDLINES:
Any employees engaged in the unauthorized use, sale or possession of alcohol or controlled substances while on the job or on company property will subject themselves to disciplinary action, up to and including discharge. Any employee convicted by a court of law of any illegal controlled substance activity will be subject to the most severe disciplinary action up to and including discharge.
Although we consider clinical dependency on alcohol or drugs a treatable illness, we will not allow it to permit employees to endanger their own or others’ safety or to cause damage to company property. Failure on the part of the employees to correct their performance will be handled through the standard disciplinary procedure. The decision to discipline and the degree of discipline imposed will depend on many considerations. While we do not intend to legislate the degree of discipline through this policy, we do want to clearly communicate to our entire work force that the unauthorized use, sale or possession of alcohol or controlled substances while on the job or on company property will not be tolerated. There should be no misunderstanding by any employee as to the company’s and the union’s intent of this policy, which is to remove drug and alcohol problems from the workplace. While there is genuine interest in employee rehabilitation, offenders of this policy will be dealt with appropriately.
FACTS
The grievant “C” was discharged on February 10, 1992 for pleading guilty to the offense of unlawful possession of marijuana in the second degree, a Class “A” misdemeanor. He was sentenced to the Mobile County Jail for a term of one year, which sentence was suspended for two years pending his good behavior. He was required to pay a fine of $500.00 plus court costs and a victim’s fee, which brought his total payment to $676.00. This was on January 27, 1992. On February 15, 1991, C’s house was searched by Deputies of Mobile County Sheriff’s Department acting with agents of the United States Alcohol, Tobacco and Firearms Bureau in a combined task force. The Deputies found 1.75 pounds of marijuana in a corner of C’s closet. It had a “street value” of slightly less than $2,500.00. The marijuana was packaged in thirty “quarter” bags [that is, plastic bags containing 4 ounces of marijuana], one larger bag about quart size, and one still larger bag, about gallon size. Also were found a box of rolled marijuana cigarettes, a set of postage scales, cash in a bank bag and two pistols. There also was a tray of marijuana cigarette butts. C was not at his residence when the search was made. He later turned himself in to the Sheriff’s Department and was charged with unlawful possession of marijuana in the first degree, a Class “C” felony under the Alabama Criminal Code. He made bond. Upon his return to work, the Company learned of his arrest and he was thereupon suspended.
Mr. Connolly, Manager of Labor Relations, testified that, at the third step meeting, C admitted that he had sold marijuana to “cover the expenses” of his use. He bought the marijuana for himself and friends. Mr. Connolly stated that the discharge of C was based on the fact that the paper company was a hazardous workplace. The use and possession of controlled substances cannot be tolerated. C admitted that he sold and used marijuana. Under the Company’s Drug and Alcohol Policy, the Company had the right to discharge C after he was convicted of “illegal controlled substance activity.” Mr. Connolly stated that C was an average employee and had not given the Company any problems in the past. The Union presented evidence pertaining to the drafting of the Drug and Alcohol Policy. It stated that the Company and Union negotiated the policy with the objective of having a “drug free workplace.” It stated that there was never any intent for the policy to apply to off-site conduct. Regarding the provision permitting discipline to be imposed where the employee was convicted of illegal drug activity, the intent was that activity be in the plant or related to the employee’s job. It also stated that personal use of drugs outside of the plant, which had no impact upon the plant or its activities, would not be subject to the Drug and Alcohol Policy. Mr. Butler testified that he participated in the negotiation of the Drug and Alcohol Policy. The purpose was to make the plant drug free. The Company, at no time, said that the policy would apply to off-duty conduct. C testified that he did not deal in drugs. He only purchased the marijuana in question for the use of himself and his friends. He would advance the money for the marijuana, he would then distribute the marijuana and collect the cost from friends. It was strictly for personal use. He never brought any of the marijuana on the plant site. Mr. Sharp, Manager of Human Resources for the Company, stated that the question of off-plant use for possession of a controlled substance by an employee was never discussed during the negotiations leading to the Drug and Alcohol Policy.
POSITIONS OF THE PARTIES
THE EMPLOYER:
The Company maintains that it properly discharged C. The Company shows that. through negotiations with the Union, a formal Drug and Alcohol Policy was adopted and made part of the Collective Bargaining Agreement effective June 1, 1989. C is the first employee discharged under that Policy. The Policy provides at pages 67 68 that an employee who is convicted by a court of law of “any illegal controlled substance activity” will be “subject to the most severe disciplinary action up to and including discharge.” C was convicted of unlawful possession of marijuana in the second degree. This clearly falls within the cited language of the Policy. The Company determined that such a conviction warranted his discharge. C admitted to having purchased approximately two pounds of marijuana, part of which he sold to one individual and intended to sell to four or five persons. He admitted engaging in such an activity over the past five to six years. Proof that C engaged in this activity was shown by the presence of thirty “quarter bags” containing marijuana which was to be sold by C. The evidence shows that C works in an area of the “Mill” where hazardous chemicals, (chlorine, chlorine dioxide, and sulfur dioxide) could be released into the atmosphere, thereby endangering the 3,000 employees at the plant and thousands of individuals who live in the adjacent areas. A person who is not fully in control mentally and physically could expose large numbers of persons to injury or possible death.
The Company maintains that the Union arguments are without merit. The Union argues that “off-duty” activity was not covered by the Drug and Alcohol Policy. The reading of the policy does not restrict it to “on-site” activity. The Policy characterizes as “unacceptable behavior” convictions by a court of law of “any illegal controlled substance activity”. There is no demarcation between an employee engaging in such an activity on the plant site or away from the plant site. The Union argues that C’s misconduct did not affect the workplace because he did not use marijuana at the plant nor did he sell this substance to any other employee. The fact that C was caught in possession of drugs away from the plant does not rule out an intent on his part to sell drugs at his place of work. Arbitrators have upheld terminations on analogous facts to that of the C case. The argument is advanced that C should not be discharged because of his conviction of a misdemeanor. The evidence in this case shows that C was initially charged with a felony. This was reduced to a misdemeanor in consideration of C testifying in the prosecution of a higher drug distributor. In other words, the prosecutor made a “deal” with C.
THE UNION:
The Union maintains that neither the Labor Agreement nor the Drug and Alcohol Policy provides for termination of an employee for engaging in drug activity which is off-duty. The reading of the Drug and Alcohol Policy demonstrates that it was not the intent of the parties to “mandate morality”. The purpose was to make a drug free environment at the plant. This was the testimony of the Union witnesses who are members of the committee who negotiated the Drug and Alcohol Policy. They stated that the intent was never to apply this Policy to off-site conduct. The Union argues that C’s off-duty and off-premises conduct has no nexus to the employer and therefore “proper cause” does not exist for his discharge. The evidence fails to show that there was any nexus between C’s activities and the Company’s business. The grievant’s job performance and job safety did not suffer. The employees were not adversely affected as proved by the fact that the Union membership voted unanimously to arbitrate C’s termination. The evidence failed to show’ that there was any safety hazard created by C’s conduct. C was found guilty of possessing drugs off-duty, so that no safety hazard could possibly exist at the plant. The Company treated C differently than another employee, Mr. Pickett, who was retained on the job even though he was on probation after being convicted of possession of cocaine. It is undisputed that C pled guilty to possession of marijuana in the second degree which is a misdemeanor. Finally, the evidence shows that C’s conduct can be easily corrected. He will never again buy or sell marijuana on behalf of his friends nor use it.
QUESTIONS
1. Did the company properly discharge C on the grounds of “engaging in the unauthorized use, sale and possession of marijuana” even though he was not actually engaging in these acts “on-site”?
2. Does the fact that C worked with toxic chemicals have any implications regarding his discharge?
3. Would another form of disciplinary action been more appropriate for C?
4. The union contends that C’s conviction fails to show us any “nexus” between C’s activities and the company’s business. Do you agree?
5. How would you decide this case? Why?