Paperworkers International Union, Local 904
Thomas R. McMillen, Arbitrator. Award issued February 1, 1993
ISSUES: Discharge Refusal to take drug/alcohol test.
FACTS
The facts of this case are not in dispute. The grievant (M) was present but did not testify. We find that he appeared for work on March 10, 1992 in what his supervisor observed to be an intoxicated condition. The supervisor, Dwayne Slack, was an experienced and well-trained individual on the recognition of alcohol abuse. He observed the grievant on his reach truck, bobbing and weaving back and forth without operating the truck. His eyes were red and glassy, his speech was slurred, and he walked from the truck in a stumbling manner. After offering various unacceptable excuses for not performing his assigned duties, the grievant was asked to take a drug/alcohol test, and the Union shop steward was summoned.
When the Union steward arrived, she met with the supervisor and the grievant in the supervisor’s office, and the grievant admitted that he had been up all night and was still drunk. The Union representative also admits in his brief (second page) that M “did in fact report to work in an intoxicated state.” He was thereupon suspended for an investigation and was asked to take a drug/alcohol test. A taxicab was waiting to take him to the testing facility.
After a short private conference with the Union steward, the grievant again refused to be tested. He was then told in the presence of the steward that he would be terminated if he refused to be tested or failed the test and that he would he reinstated if the test came out favorably to him.
After the supervisor checked with the Director of Personnel by telephone, he repeated the alternatives to the grievant and the grievant persisted in his refusal to take the test. The Union steward testified that she did not give him any specific advice on taking or not taking the test. The grievant was therefore terminated in accordance with the letter referred to above. He punched out, and went home.
CONTRACTUAL PROVISIONS
The collective bargaining agreement provides in Section 17(A) on Page 16 as follows:
SECTION 17. DISCHARGE
17(A) No employee shall be discriminated against for any Union activities or in any way so as to violate the letter or spirit of this Agreement. After an employee has completed the trial period, he shall not be discharged except for justifiable cause. Except in cases where immediate disciplinary action is necessary, such as, but not limited to, actions which endanger the health, safety or welfare of other occupants of the shop or violate criminal or civil laws, no employee shall be discharged until after the Company shall have first discussed the matter with the Shop Committee. This shall not preclude the Company from effecting the discharge if, in its judgment, after such discussion, the discharge is warranted.
A further provision in Section 17 provides as follows:
17(C) Any such dispute shall be adjusted in accordance with the procedure set forth in Section 19 hereunder, and the ultimate decision as to whether the employee has been discriminated against or has been unjustifiably discharged or laid off in violation of the provisions of this paragraph, and the remedy prescribed shall he final and binding on the parties hereto. Any employee unjustifiably discharged or laid off in violation of the established seniority list, shall he compensated for all time lost and shall be immediately reinstated. This paragraph shall not interfere with the necessary reduction of the working force in slack periods.
19(D) Arbitrator’s Authority— The Arbitrator shall have no authority to add to, subtract from, modify or amend in any way the terms and conditions of this Agreement.
COMPANY POSITION
The employer contends that it discharged M for just cause, relying on two sets of facts:
(I) Past practice. An employee named T was terminated because she failed to pass a drug test in June, 1989. She was represented by the Union, had been observed under the influence of marijuana during working hours (but outside of the building), took the drug test and failed it. She was therefore discharged and no grievance was filed.
Another incident occurred in the parking lot when two employees were found with empty beer bottles beside their car. However, they did not appear to the supervisor to be under the influence of alcohol and were not asked to submit to a test. They were given a one and one-half day suspension without pay and no grievance was filed.
Two other instances of failure to give tests were shown in the record, namely, with respect to the condition of W and 0. Neither person was given a test because of lack of probable cause to believe they were under the influence of alcohol, but the Union knew of this policy and practice and at least tolerated it.
(2) The Company also relied upon a notice which had been posted next to the time clock at the Hammond plant since 1988. It read as follows:
The use, sale or possession, or being under the influence, of illegal drugs or
alcohol on the job or on Company property’ is prohibited. Employees who violate
this prohibition or who are involved in illegal drug activities, whether on or off
the job, shall be subject to disciplinary action, up to and including termination.
Similar policy’ statements are contained in a rule book which is given to every employee upon hiring.
UNION POSITION:
The Union takes the position that the posted notice is not a binding contractual provision and that it says nothing about drug or alcohol testing. Therefore, the Union contends that there is neither a violation of the rule nor of written Company policy by M’s refusal to submit to a drug alcohol test. It does not challenge the determination that the grievant was drunk.