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Title: The Pittsburg & Midway Coal Mining Co. and UMWA District 15, Local Union 7949
Date: February 28, 1990
Arbitrator: David Robinson
Citation: 1990 NAC 102

BEFORE THE BITUMINOUS COAL INDUSTRY ARBITRATION SERVICE

_____________________________________________________________

UMWA, DISTRICT 15, LOCAL 7949            )        ARB Nos. 89-007 to 0010

            and                                                        )         ISSUE:  DRUG SCREENING:

THE PITTSBURG & MIDWAY COAL            )                       RECALL PHYSICAL

MINING CO., YORK CANYON MINE         )                     EXAMINATION

COMPLEX                                                       )

_____________________________________)

Date and Place of Hearing:        December 8,1989, Holiday Inn, Raton,                                                             NM

Appearances:

            Company:         Don W. Geiger, Supervisor, Human Resources and
                                    Labor Relations, Pittsburg & Midway Coal Mining
                                    Co., P.O. Box 100, Raton, NM 87740

            Union:              Arthur A. Mestas, UMWA District 15 Sub-District
                                    Representative, Route 3, P.O. Box 280, 
                                    Trinidad, CO 81082

Witnesses:

            Company:         John C. Klingler, Mine Manager;  Alan E. Aldrich,
                                    Production Superintendant.

            Union:              Michael F. Colangelo, Local President; Bruce Boyens,
                                    Western Regional Director, International UMWA;
                                    Leroy G. Baca, Pit Committeeman;  Joe B. Caciatore;
                                    John Gonzales;  Larry Sisneros.

Arbitrator:                    David K. Robinson, J.D., 2940 Spokane Drive,
                                    Las Vegas, NV 89121

Exhibits Received Into Evidence:  See Appendix A, numbered exhibits and, where applicable, relevant text.

Arbitration Cases and Secondary Authority Cited by the Parties:  See

                                    Appendix B and relevant text.

ISSUE

I.          DID MANAGEMENT VIOLATE THE CONTRACT BECAUSE IT UNILATERALLY IMPLEMENTED THE CONTROLLED SUBSTANCE AND ALCOHOL TEST IN THE PRE-EMPLOYMENT PHYSICAL FOR PANEL EMPLOYEES RECALLED AFTER LAYOFF WITHOUT THE CONSENT OR MUTUAL AGREEMENT OF THE BARGAINING COMMITTEE AS GRIEVED?  IF SO, WHAT IS THE PROPER REMEDY?

II.         IF THE POLICY AS UNILATERALLY IMPLEMENTED DID NOT VIOLATE THE AGREEMENT, DID THE REFUSAL TO RECALL EMPLOYEES WHO TESTED POSITIVE VIOLATE THE AGREEMENT?

PROVISIONS CITED BY THE PARTIES FROM THE NATIONAL BITUMINOUS COAL WAGE AGREEMENT OF 1988 (SOMETIMES HEREAFTER "AGREEMENT"

Article 1A - SCOPE AND COVERAGE

Section (d)       Management of the Mines

            The management of the mine, the direction of the working force and the right to hire and discharge are vested exclusively in the Employer.

Article III - HEALTH AND SAFETY

Section (a)  Right to a Safe Working Place

            Every employee . . . objective.  Recognizing that the health and safety of the Employees covered by this Agreement are the highest priorities of the parties, the parties agree to comply fully with all lawful notices and orders issued pursuant to the Federal Mine Safety and Health Act of 1977, as amended, and pursuant to the various state mining laws. (emphasis added).

. . . .

Section (j)  Physical Examination

            (1)        Physical examination, required as a condition of or in employment, shall not be used other than to determine the physical condition or to contribute to the health and well-being of the Employee or Employees.  The retention or displacement of Employees because of physical conditions shall not be used for the purpose of effecting discrimination.

            (2)        When a physical examination of a recalled Employee on a panel is conducted, the Employee shall be allowed to return to work at that mine unless he has a physical impairment which constitutes a potential hazard to himself or others. (emphasis added).

            (3)        That once employed, an Employee cannot be terminated or refused recall from the panel or recall  from sick or injured status for medical reasons over his objection without the concurrence of a majority of a group composed of an Employer-approved physician, an Employee-approved physician, and a physician agreed to by the Employer and the Employee, that there has been a deterioration in physical condition which prevents the Employee from performing his regular work.  Each party shall bear the cost of examination by the physician it designates and shall share equally in the cost of examination by the jointly designated physician.  (emphasis added).

            (4)        Where an Employer challenges the physical abilities of an Employee or panel member to perform is regular work and is subsequently proven wrong, the Employee shall be compensated for time lost due to the Employer's challenge, including medical examination expenses in proving his physical ability to perform the requirements of the job. 

SYLLABUS OF TESTIMONY AND FACTUAL EVIDENCE

            Mr. Bruce Boyens testified. He has been Western Regional Director for six years.  Four P&M facilities are in the Western Region at this time:  McKinley Mine near Gallup, NM; York Canyon Complex, near Raton, NM;  Edna Mine, near Steamboat Springs, CO, and the Kemmerer Mine in Kemmerer, WY.  All but the York Canyon complex were P&M at the time of the negotiations for the 1988 Agreement.  In 1987 drug screening and drug policy was part of negotiations at McKinley Mine where a strike ensued over the issue and as a secondary issue at Kemmerer.  Mr. Boyen's identified the McKinley Mine's drug policy (Co. Exhibit A). 

            Joseph B. Caciatore testified.  Mr. Caciatore was recalled from layoff and took the physical examination.  About three days before receiving a letter from P&M that he had tested positive for marijuana, he was called by Don Geiger (Human Resources) telling him of the results. 

            Mr. Caciatore testified that the form he signed permitting the drug screening was handed to him after he had taken the physical and had already given the sample.  No instructions were given by the office person there about reading the release before signing it. The same  thing occurred when Witness Colangelo had his physical examination and left his sample.  Mr. Caciatore denied using marijuana.  He worked  at various places during layoff.

            Mr. John Gonzales, a laid off employee who also tested positive for marijuana testified.  He was called by Don Geiger with the information that he had tested positive but did not receive a letter for a few days after.  He was recalled from the panel and is a fourteen year veteran of working at the York Canyon complex.  He recalled no unusual happening at the physical examination and signed the paper put in front of him as he left.

            Larry Sisneros testified. He was notified that he had tested positive by Don Geiger and later received a letter.  When he took his physical examination and when leaving, the office "nurse" handed him the form to sign that he now knows was a release form.  No comment was made advising him that the form was a new form for taking a controlled substances test screen.

            The Local's president, Michael F. Colangelo testified. He said he was first aware of how the Company intended to use the results of the drug screen test when he heard from Joe Caciatore that he [Joe] had tested positive and would not be returning to work.  Mr. Colangelo then worked with Joe and the other two in filling out their grievance forms and instructed the representative to file a class action since he believed the application of the drug screening for recall from layoff physicals affected many members of the Local. 

            Mr. Colangelo took his recall from layoff physical at the same time as did Larry Sisneros.

            Mr. Colangelo, as President, attended communication meetings even when he was not working at the mine.  He keeps notes of meetings he attends in order to notify local members of things he thinks will have more than usual affect on them.  He does not remember being at a communications meeting held in mid-March 1989 but was at the February 3, 1989 meeting.   His notes of the February 3 meeting show nothing about drugs or drug policy.

            Mr. Colangelo was part of the negotiating team for Local 7949 when P&M took over the Raton Complex from Kaiser.  Bruce Boyens and Leroy Baca were also on the negotiating team.  Mr. Colangelo testified that drug screening didn't come up during negotiations.

            Leroy G. Baca testified.  He has held several positions in the local union and in the International.  Mr. Baca has worked at the York Canyon Complex for more than 19 years.  He first heard about the drug screening test implemented on the layoff recall physical when he started getting telephone calls from those taking the physicals.  He was at the 3/17 meeting but doesn't recall anything specifically being stated about drug screening being required for recall physicals.  When cross examined, he denied saying to Mr. Klingler at the meeting, "Don't you know you are dealing with the UMWA," when discussions about drugs came up.

            Mr. John C. Klingler testified.  All P&M mines, he said, require a drug screening test as part of a recall from lay off physical examination.  All salaried employees called back in early February 1989 were also required to take a drug screen test as part of their physical examinations.    The February 3, 1989 communications meeting was a "get acquainted" meeting primarily since P&M had just formally taken over the mine and was preparing to reopen the mine for operations.  Mr. Klingler testified recalls that physical examinations were discussed and thinks he said that layoff panel personnel would be required to take a drug screen as part of the physical.  One local union official, Terry Sanchez, as he recalls asked whether Company men would have to take it also and was told, "yes."

            Mr. Klingler explained the concern he and others in management have about the substance abuse problems locally and nationwide and touching the mining industry.  Various Company exhibits K through S were received during the testimony of Mr. Klingler.

            Mr. Klingler made the decision not to rehire the 3 men who tested positive for marijuana (cannabinoids).  He believes the decision was within the Company's right to manage the Mines and Direct the Working Force.  He believed that the letter from the Chevron Medical Director, Dr. Koppe, demonstrated impairment of the individual.

            Alan E. Aldrich was the last Company witness.  He was at the 2/3/89 communications meeting.  Drug screening was discussed at the meeting and the Local's people there were told that drug screening would be included in the recall from layoff physicals.  The same topic was discussed again at the 3/17/89 meeting.  Nothing was said about what may happen to those who tested positive. There is an employee assistance program in effect at P&M.

            Mr. Don Geiger testified from his personal knowledge about P&M's Kemmerer and McKinley Mines substance abuse policies.    Drug Screening was unilaterally adopted there as part of a substance abuse policy  about 1987 and were then included in local agreements in the 1988 Agreement but denied that the P&M agreements there had anything to do with the issue here.  Mr. Geiger was in attendance at the 3/17/89 Communication Meeting and remembered Mr. Baca's saying to Mr. Klingler, "Don't you know you are dealing with the UMWA?"

PROCEDURAL MATTERS

            At the request of the Local Union, post hearing briefs were requested.  A briefing schedule to include reply briefs was announced.  Briefing ended in mid February 1990.  New matters raised in the briefing, only where relevant to the issue, and new cases or secondary authorities when applicable will be included in the decision.

            The NLRB deferred after the UMWA filed a charge with the NLRB pending the completion of this arbitration.

POSITIONS OF THE PARTIES

Company:

            Each grievance challenged the Company's implementation of the drug screen (aka controlled substance or contraband drug screen) on the grounds that there was no mutual agreement between the Company and the Local Union and no bargaining about the issue of adding a drug screen test.  The grievances did not include how the company applied the drug screening test for rehires or the methodology of the test.

            The grievances in this case were not timely, all being beyond the ten day limit of the National Agreement.  The grievances cannot be termed  continuing grievances since the screening tests were used both on salaried and classified employees for several weeks before July 1989. Thirty eight Classified Employees took the drug screening test during their physical examinations after recall from the layoff panel before May 10.

            The Vice President of the Local took his physical including the drug screening test  on May 10.  The grievants in this arbitration took the drug screening test part of their recall physical examinations in June on June 15 or 16, 1989.  Local President, Colangelo who filed the class action grievance gave his sample and signed the authorization on June 15, 1989.

            Before any testing of Classified employees was performed, there were communications to Local Union officers about the intent by the Company to have drug screening tests conducted.  There were communication meetings on February 3, 1989 and on March 17, 1989.  The Mine Manager, Mr.  Klingler and three others of management were present at both meetings.  Several Local Union leaders were present at the February meeting.  The Local's president, Mr. Colangelo was present in February.  The meeting in February was a "get acquainted" meeting since P&M had just taken over the York Canyon Complex after purchasing the facilities from Kaiser Coal.

            When the mine was first reactivated by P&M, the Classified Employees who had continued on Idle status from Kaiser's operation   were not required to take a drug screening test as part of their physical.  Drug Screening was something new at the York Canyon Complex at the time when P&M officially took over.

             That P&M intended thereafter to use drug screening as part of physical examinations and for both Classified and for Salaried employees was made clear at both communication meetings held in February and March 1989.  The Local Union could not have been surprised when drug screening tests were given. 

            The Arbitrator should find that the matter was not timely filed and should not reach the merits of the case.

            However, should the Arbitrator hold that the matter was timely filed, then the arbitration should be denied because the Local Union cannot prevail on the merits.

            A national priority has been placed on drugs.  The drug problem is a national problem in our society and is a problem also in the workplace.  There is no reason to think that Raton, New Mexico or the York Canyon Complex is not affected.

            Drug Screening Tests are fairly recent developments in combating the drug problem in the work place.  Opposition to drug screening has been based on invasion of privacy; validity of tests and procedure;  possible arbitrary or discriminatory testing, and unilateral implementation of a drug screening policy and testing.

            P&M has the right under Article 1A(d) to direct the working force.  Discretion remains exclusively with the Employer limited only by reasonable and non-arbitrary exercise of the management right.  Arb. Rev. Bd. Dec. No. 78-26.   The Company properly exercised it's discretion when it decided to implement a drug screening test to be included in physical examinations. 

            P&M has the right to implement the drug screening test and also has the right to deny recall if an employee on the layoff panel does not pass the test when there has been a deterioration in the employees condition which prevents the employee from performing his regular work.  Article III(j).  The three grievants who tested positive for marijuana were given many opportunities to ask for the three doctor panel to determine whether or not there was any impairment but have never asked for the three doctor panel although the Agreement contains their right to do so.  The grievants were told to sign an additional release form in order to have the testing details and results, as to them, released for their use.  The grievants have never filled out the form.

            The Local Union will likely point to an opinion of The NLRB's General Counsel, GC 87-5, for the proposition that drug testing is a change in work conditions and should be the subject of mandatory bargaining.  The Company in it's reply brief cited a more recent case decided by the NLRB en banc, the Star Tribune Case (See Co. K, Appendix A) to the contrary.

            Several arbitration cases have been submitted (See Company Cases summarized in Appendix A) which support the position of P&M in this matter.

            The grievance should be dismissed.

 Local Union.

            Although Company officials claim that they made clear to Local Union officials at communications meetings that the Company intended to begin using drug screening tests, Local Union officials did not know of any policy's being in effect until the three grievants failed the drug screening test.  The local officers did not know that the testing was in effect until three grievants were denied being recalled from the panel because they purportedly tested positive for marijuana.

            There is not now and never has been a written policy [contraband drug policy including notice of drug screening] communicated to the employees, the local union officers or the local union mine communication committee.  P&M did not discuss it's alcohol and other drug policy or a change in physical examinations for recall during collective bargaining negotiations held between the UMWA  and P&M during April and May 1989. Further, P&M never even discussed the subject with the UMWA during these negotiations nor did the collective bargaining agent, the International Union, UMWA even know of a drug screening policy of any kind being in effect at York Canyon until it was informed via this grievance.

            To date, the grievants haven't been supplied the results  of their drug screening tests even though they and the union have requested the results.  To date, the local union, District 15 officials and both panel and active bargaining unit employees have never been shown any written or any clear and concise drug screen policy for P&M's York Canyon complex.  It was not until November 27, 1989 in a letter from P&M  to the union that the standards the Company was using to determine a positive or negative drug test and the identity of the drugs targeted in the test was disclosed.  P&M had plenty of warning that the local union would be interested since P&M's mines in Western New Mexico and in Wyoming  and Western Colorado (Edna, McKinley, and Kemmerer) were struck when a primary issue was the drug screening.

            The Union has also filed a charge with the NLRB.

DISCUSSION AND DECISION

            Testing for alcohol and other drugs during  physical examinations of bargaining unit employees has created significant controversy in labor-management relations.  The Nation's "War on Drugs" belatedly caught up with public pressure to deal with the burgeoning drug problem in the United States.  Unquestionably the scourge of drugs cuts across all levels of society and into the workplace.  Alcoholism has been recognized as a major problem in the work place for years while, at the same time, our culture has accommodated  alcohol as something less than a drug problem and almost as a societal necessity.  Then marijuana, heroin, cocaine, crack, and other contraband drugs slammed into our society bringing with them the ugly aftermath now facing America and touching all its citizens either directly or indirectly.   The gravity of the problem is generally accepted by all concerned Americans.  Dealing with the problem while, at the same time, preserving our time honored sense of law and justice in a society of competing and often opposing interests is an unresolved and ongoing puzzle.

            Both labor and management groups in the Bituminous Coal industry want a safe working place in an inherently dangerous industry.  Bargaining unit employees and management both look primarily to the agreement reached after collective bargaining as the principal source defining each others rights and duties.  Secondarily the parties look to the National Labor Relations Act.  Company rules adopted after notice to classified employees have for several years stressed that drugs and alcohol were not permitted during working hours at the mine.  But the advent of reliable drug screening tests taken as an additional use for the common urine specimen given during a physical examination signalled significant disagreement between management and labor.  The numerous arbitration decisions outlined  in Appendix B attest to the different view of the parties and the varying view of arbitrators as to the issues presented.

            Fundamental to an Arbitrator's duty is to limit a decision to the facts and issues before the Arbitrator where possible.  An Arbitrator should not wander far afield from the common law of the industry built around the labor/management agreement negotiated by the parties, the BCOA and the UMWA.  The Arbitrator must also be sensitive to the fact that provisions of the National Agreement here and provisions of the labor/management agreements in other industries are rarely identical and that care should be taken in adopting anything but broad principles from the interpretation of agreements in other industries.

I.  UNILATERAL IMPLEMENTATION OF DRUG SCREENING POLICY AND TIMELINESS OF GRIEVANCES

            The grievances here are of two types.  Grievance, #89-008,  is a class action filed by the  Mr. Baca, that action being filed on July 5, 1989 after a first step foreman's decision given on June 30, 1989.  The Grievance charged that management had unilaterally implemented a drug policy [presumably meaning had violated the Agreement by unilaterally implementing the decision] and demanding that all employees bypassed on recall be made whole. The positions of the Mine Committee and Position of the Employer actually flesh out the contrasting views and make sense of the grievance.  The Mine Committee's position was "Company implemented drug testing without consent of UMWA Local 7949 officers or bargaining committee."  In denying the class action grievance, P&M by the signature of the mine's manager  said:

Management made the policy clear at first communication meeting 2/3/89 and again on 3/17/89 meeting both before May [1989] negotiations.  (emphasis added).

            The other three grievances, 89-008, 9 and 10 were filed by Larry Sisneros, Joe Caciatore, and John Gonzales, all three of whom were lay off panel employees who tested positive for marijuana.  None of the three is an officer of the Local or a member of the Mine Committee or had any communication about the drug policy until each signed the authorization at the time of taking his recall physical.  The language of their grievances is almost identical to the language of the class action grievance and was created in part by the local's president:

 "I charge Management with unilaterally implementing the drug testing policy.  Management has bypassed me on recall.  I demand to be made whole by Management recall me to the job or jobs I should have been recalled too, to include all hours I would have earned with interest, and that hours be made toward the Retirement Fund. 

The Mine Committee's position again was "Management implemented drug testing without mutual agreement of Local 7949 officials or bargaining committee.  But, as to the three individual grievances, the Company, in denying them, stated its position as:

 "Company denied recall based on employee testing positive on controlled substance."

            Consequently, while the language of the grievances themselves was couched in the language of implementation, the Company's stated position on the grievance form dealt directly with the job action taken, i. e.,  the denial of recall.

           The thrust of the Company's argument that the grievance was untimely is primarily to the class action grievance of the Local Union. The Company makes much of the fact that the local should have known the drug screening policy was being put into effect not only because of the warnings about the policy given at two communication meetings, one in February and one in March, but also because several local union members signed the drug screening authorization (Co. Exhibit E) long before the class action was filed on June 30, 1989.  In fact, the Company noted, the Local's Vice President signed the authorization when taking his physical on May 10, 1989

           Two of the three individual grievants took their recall physical examinations on June 16 1989 and the other on June 15, 1989.  Each  was informed several days later by phone and by letter that he would not be recalled because of his testing positive. Shortly after each grievant received notice that he had tested positive and would not be rehired, each grievant filed his individual grievance with the assistance of the local's president.

            The three individual grievances were timely filed within the ten day limit of the grievants' learning of the job action against them because of their testing positive [Article XXIII(d)].  Notwithstanding that the language of the individual grievances deals with implementation of the plan, both parties knew and accepted that the three individual grievances were filed because the three grievants were refused rehire because they tested positive for marijuana.

           The Company is correct that the class action grievance No. 89-007 was not timely filed and should be dismissed. 

           The last effective date to file a grievance about implementation of the drug screen policy would have been within ten working days after the Local knew or should have known that the release form each recalled employee signed for his recall physical signaled the implementation of the policy announced by P&M officials at the communication meetings.  Further, the Local's Vice President must have been aware when he read the release agreement at the time he gave his urine sample several weeks before the class action grievance was filed.

           The decision will deal only with the three individual grievances.

II.  ADOPTION OF DRUG POLICY WITHOUT BARGAINING

           Necessarily, I  consider whether or not P&M could adopt a policy without either bargaining on the issue or without notice to employees including panel employees about the new rules and about  possible discipline for violation of the rules.

            Surely nobody argues with the fact that alcohol and other drugs should not be permitted on the mine premises and that no employee whether salaried of classified should be at work at the mine if s/he is under the influence.  The MSHA regulations the parties recognize under Article III(b) of the Agreement make clear the prohibition on the workshops.  Almost all mines have published prohibitions against alcohol, drugs, and working or have implicitly adopted such standards of conduct.   Although no precise statistics are available, there is general consensus that employees, whether salaried or classified, who come to work in a condition of being under the influence of contraband drugs and alcohol may be sufficiently impaired that they may not be able to perform their jobs effectively or safely.  Consequently, both management and labor share the concern but view how to deal with the problem somewhat differently.  Many views in our industrial society on the employers side believe that random testing, discharge for testing positive, and other strong measures are necessary to gain control of a national problem.   Representative of organized labor, while sharing the concerns about the drug problem, are concerned about the long arm of the employer stretching into the private off the job lives of workers and the potential for discharge if a person tests positive under a drug screening test. 

            While the drug screen test used in this case by the Company, the EMIT test method, is heralded as effective and accurate, experts realize that the method is not foolproof.  (See, for example the Amoco Oil case decision by Joseph L Bard, Union Exhibit 6, Appendix B).  A  firmly held reliance on testing can be analogous to the present knowledge, grudgingly accepted by some, that a polygraph test even when administered by a highly skilled and nationally respected expert is not of certain reliability. 

            Opposing views on whether or not instituting a drug screening test is a mandatory bargaining issue come from the National Labor Relations Board.  The NLRB General Counsel's Memorandum GC 87-5 of 9/8/87 (See Appendix B, Union Exhibit 5) holds, among other things, that drug testing for both current employees and job applicants is a mandatory subject of bargaining under the NLRA even where physical examinations have previously been given  and that any waiver of the bargaining right must be clear and unmistakable.  However, on 6/15/89, the NLRB itself ruling as an entire administrative court held that drug testing is not a mandatory bargaining issue as to applicants for employment (See Star Tribune Case, Appendix B, Company K).  The Board noted with approval a Supreme Court view that "employee" as defined in the Act [National Labor Relations Act] is not to be stretched beyond its plain meaning embracing only those who work for another for hire. The NLRB ruling does not expressly go to the situation of laid off employees who are members of the panel as in the National Agreement in this case. 

            The Union argues that drug screening should be a mandatory bargaining issue.  The Company argues it has the right under Article IA(d) of the Agreement to manage the mine and direct the working force and to implement a change in the physical examination for layoff rehires without mandatory bargaining.  [Article III(j)(2)]  P&M cites a typically well reasoned decision of Arbitrator Phelan that since a physical examination is required after recall from layoff adding a drug screen to the test does not violate the agreement. [Castle Gate Coal, Appendix B, Company E].  The Local Union argues that the decision of Walter E. Lawrence and the opinion of NLRB counsel are more correct in that the parties have negotiated extensively over physical examinations and safety thus bringing the subject into a mandatory bargaining posture.  [Empire Energy Case, Appendix B, Union Exhibit 9]. 

            Considering the competing views about unilateral implementation, I adopt the view that P&M had the right to adopt the drug screening policy without resorting to mandatory bargaining with the Local Union.   The National Agreement as negotiated now contains significant references to safety and includes in Article III(a) reference to safety's being of the highest priority.  Unquestionably, the direction of the working force is reserved to P&M so long as does not arbitrarily, capriciously, unreasonably, or discriminatorily  assert its right.  [Arbitration Review Board Decision 78-26, Appendix B, Company Exhibit C].  I am also convinced that P&M was motivated here by a concern for safety and efficiency at the Raton Mine Complex  and not by dedication to the myth of a "drug free society."  P&M at other mine complexes in the same UMWA District has adopted drug policies and has sufficient reason to believe that the national scandal of drug use and abuse has reached the coal mining industry. Whether or not the Company's application of its unilaterally implemented policy safeguards the individual rights of classified employees will be discussed later.

            I hold that P&M did not violate the Agreement when it unilaterally invoked a policy to add drug screening to the urine test for the physical examination required of panel members being recalled.

III.  APPLICATION OF THE NEWLY IMPLEMENTED POLICY

            The  three panel employees who were denied a right of recall because they failed a urine drug screening test were, in effect,  disciplined for non workplace conduct  and for violating a policy new to them.  Since drug screening is frequently justified because of he breadth of the problem in the work place, I examine that subject now.

            A fundamental black letter rule of discipline in labor-management relations is that prerequisites for valid discipline are that (1)  The employee to be disciplined must have  had notice of the prohibition [rule or bad conduct]; (2) The employee must have had notice of the prohibition and of the penalty for violating the rule or for the misconduct; (3)  Management must have investigated the charges and given the employee a reasonable chance to answer them; and (4)  The severity of the discipline must fit the offense.  I consider being unable to return to work because of a newly instituted policy not known to the layoff panel employee as a form of discipline.

            Here, the only evidence that any of the three grievants had any notice of P&M's new policy or penalty was the printed statement included in the physical examination form. [Company Exhibit E, Appendix A].  The significance and breadth of the statement was left to the grievant's ability to absorb the full impact of the new policy at the time he filled out the form during his physical examination.  Whether each applicant knew what was included within the phrase "presence of controlled substances" is speculative.  The release further states that the applicant will not be considered for employment if s/he tests positive. The entire release refers to the examinee as an applicant. 

            However, each examinee grievant here is an "employee" within the meaning and language of the National Agreement.  [Article XVII(b) et. seq.]  As an employee, each grievant should have been informed in a writing more distinct and informative than a release form within a physical examination procedure as to such a significant and far reaching change in a newly adopted  Company wide policy of testing for controlled substances  (and their identity) and alcohol and the extent of the potential penalties.

            I am also concerned about the fact that the three individual grievants from the layoff panel of employees might suffer discipline because of conduct or a lifestyle  not carried out when they are on working at the mine.  A  right of privacy and freedom from "Big Brother is Watching You" is still a jealously guarded right in our varied society.  I do not want to give the impression that P&M's executives at the Raton Complex don't recognize that right.  However, I am concerned that when recall is denied simply because of a positive test, with nothing more, that the executives may not have carefully considered the breathtaking scope of the penalty as it  applies in our society.  

            Mr. Klingler testified that he made the decision to refuse recall to the three men because the tested positive.  Indeed, Mr. Klingler acted reasonably when he considered the letter from Chevron's doctor.  [See Appendix A, Company Exhibit A].   A medical opinion,  without more, is just a medical opinion, and a statement taking no consideration of the National Agreement between the BCOA and the UMWA.   

            Even without considering of the recency of the acceptance of drug screening tests, the negotiators had the foresight to deal with problems such as that presented here in the triad of Article III Sections J (1)(2)(3).  Subsection (2)  requires that when a recalled employee  undergoes a physical examination, that he shall be allowed to return to work at the mine unless he has a physical impairment which constitutes a potential hazard to himself or others.  Here, there was no evidence to show that any of the three had an impairment which constitutes a potential hazard to himself or others.  The only hint of impairment was the letter of Chevron's  doctor from his office several states away who had never examined or seen the grievants, did not know their individual differences, or medical history, or anything about the jobs they performed or whether they performed the jobs well or badly or in team or alone, or operated  expensive equipment but who merely expressed the words, "The use and abuse of marijuana presents a potential hazard for the individual and or coworkers." (emphasis added). 

            Few experts in the medical field disagree with  the position that a positive test, standing alone, is anything more than grounds for suspicion that the individual may be impaired but is not necessarily impaired.  Additional differential diagnosis is necessary.  Otherwise a simplistic application of allowing urine test results to dictate whether or not a person can remain employed would take human judgement out of management's hands and place them into the hands of a distant medical technician.

            The Company also points out that the three individual grievants had the chance to but did not get releases of test results.  P&M notes that the three doctor group detailed in Article III(j)(3).  But the subsection deals with rights reserved to sick or injured status panel employees.  The section does not deal with panel employees who tested positive for marijuana.  Article III(j)(3) does not apply to this case.

            I hold that the Company improperly refused to recall the three grievants without first  establishing that each grievant had a physical impairment which constitutes a potential hazard to the grievant or others.  Commonly used physical tests and observations for drug and substance abuse are known among drug counselors and medical practitioners and can and should be applied.

ORDER

            Based on the foregoing discussion, evidence presented, cases and secondary authority cited by the parties, and good cause appearing,

            IT IS HEREBY ORDERED.

            1.         Class action grievance No. 89-007 is dismissed as untimely.

            2.         The Company had the right to adopt a change in the physical examination for panel employees to include a screening test for alcohol and controlled substances.

            3.         The Company failed to notify all affected employees including panel employees of it's policy regarding testing for alcohol and controlled substances.  The Company is ordered to publish it's new alcohol and controlled substance testing policy and to include in such notice that fact the any classified employee believing he is aggrieved because of the application of such policy has the right to file a grievance under the Agreement.  The publishing shall be by posting on all bulletin boards used by the Company to inform classified employees and by being mailed once to the last known address of each actively employed classified employee and to each employee on the layoff panel maintained by the Custodian of the panel.

            4.         The Company is ordered to recall the three individual grievants in order of their seniority to the next available jobs they have listed on their panel forms provided they can step into and do the work of the job.  If a grievant passes the recall physical he shall have all compensation awarded him for back pay as if he had been employed following the physical taken in June 1989.  If a grievant fails to pass the urine screening test, the Company and the Union are ordered to work together to assemble three competent professionals who can make a reasoned written decision as to whether the affected grievant has a physical impairment which constitutes a potential hazard to himself or others.  The parties may, but are not required, to use the model of Article III(j)(d) and are not required to use only physicians to determine impairment.  The company shall have the right to abide by the decision of a majority of the examiners.

            5.         There shall be no interest awarded on back wages.

            DATED this 28th day of February 1990

 

                                                                        ______________________________

                                                                        David K. Robinson, J.D.
                                                                        District Arbitrator
                                                                        2940 Spokane Drive
                                                                        Las Vegas, NV 89121

CERTIFICATE OF SERVICE BY MAIL

            I certify that I mailed the original or copies of the decision and of Appendix A and B by first class mail, postage paid, on the _____ day of March 1990 to the persons or entities at the addresses shown below:

 

                                                                        ______________________________

                                                                        Jerry Ann Kurth
                                                                        An employee of David K. Robinson

1.         Don W. Geiger, Supervisor HR and LR, Pittsburg & Midway Coal Mining Co., P.O. Box 100, Raton, NM 87740;

2.         Arthur A. Mestas, UMWA District 15, Sub-District Representative, Route 3, P.O. Box 280, Trinidad, CO 81082;

3.         UMWA District 15, 1563 Gilpin Street, Denver, CO 89218;

4.         BCOA-UMWA Coal Arbitration Service, c/o AAA, 1730 Rhode Island Avenue, NW #509, Washington, D.C. 2000

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