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Title: United Metro Materials Inc. and International Brotherhood of Teamsters, Local 104
Date: Febuary, 1997
Arbitrator: Jack Calhoun
Citation: 1997 NAC 118


IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

UNITED METRO MATERIALS, INC.,                                       )

                                                                                                              )   OPINION    

              and                                                                                           )     AND          

                                                                                                               )  AWARD         

INTERNATIONAL BROTHERHOOD OF                                           )

TEAMSTER, LOCAL 104.                                                          )                FMCS NO. 96-25127-2

_______________________________________________________________________________________________

 

 

 

 

BEFORE

JACK H. CALHOUN

ARBITRATOR

 

 

 

 

 

HEARING HELD

DECEMBER 31, 1996

PHOENIX, ARIZONA

 

 

_______________________________________________________________________________________________

 

 

REPRESENTATION

 

 

 

FOR THE EMPLOYER:                                                                         FOR THE UNION:

 

GLENN SUMMERS                                                                           WILLIAM MILLS

ATTORNEY AT LAW                                                                      BUSINESS REPRESENTATIVE

1000 KIEWIT PLAZA                                                                  TEAMSTERS UNION LOCAL 104

OMAHA, NE 68131                                                                      1450 S. 27TH AVENUE

                                                                                                                PHOENIX, AZ 85009

 

 

 

 

BACKGROUND

 

            The International Brotherhood of Teamsters, Local 104 (the union) and United Metro Materials, Inc., (the employer) are parties to a collective bargaining agreement that provides covered employees may be discharged only for just cause.  On August 21, 1996, the grievant, Janis Skinner, was discharged for failing to submit to an on-site drug screen test on August 15, 1996.  A grievance was filed and the matter went to hearing on December 31, 1996.  The parties agreed the  matter was properly before the arbitrator.  Post hearing briefs were filed.

ISSUE

 

            The issue is whether the employer had just cause to discharge the grievant, and if not, what is the proper remedy.

RELEVANT CONTRACT PROVISIONS

 

ARTICLE V, EMPLOYMENT TERMINATION

 

A.  There shall be no discrimination on the part of the employer against any employee nor shall any employee be discharged by reason of any union activity not interfering with the proper performance of his work.  The employer shall not discharge any employee because of race, religion, sex, color, age, national origin, disability or veteran's status, nor because the employee has demanded the wages overtime or other benefits to which this contract entitles him.  With these exceptions, the employer may discharge an employee only for just cause but will not be required to carry the burden of just cause in any arbitration over such discharge.

 

            ARTICLE VI, MANAGEMENT RIGHTS

 

A.  The management of the plants and the direction of the working forces is vested exclusively with the employer who retains all rights not otherwise specifically limited by the terms and provision of this agreement.

 

The employer's Substance Abuse Guidelines and Standards of Enforceability provides:

 

It is the policy of United Metro that the possession, storage, sale, purchase, consumption, or "being under the influence" of intoxicating beverages or drugs of any type (other than some prescription drugs for medical purposes) during working hours, which includes lunch and break time, is strictly prohibited and shall be grounds for corrective action up to and including termination . . .

 

. . . It will be the responsibility of each supervisor to ensure that each employee has been tested for substance abuse as required and to establish and maintain consistent enforcement of this policy within his or her area.

           

All employees, during the course of employment, will be subject to unannounced "site" substance abuse testing.  Such "site" testing will be conducted at various company sites as determined by the company and will include all company employees present at the site, scheduled to be present, or later present at the site during the period of testing.  No employee will be permitted to leave the site for the day (punch out) until he or she has taken a substance abuse test, unless other arrangements for collection of the specimen have been made by an authorized company representative.  Employees scheduled for work at the site who are absent will be required to take a substance abuse test as directed by the company. . .

 

Substance abuse tests must be taken within the time period stated by the company.  Failure to do so may result in termination.  Should an employee refuse to submit to testing, he or she will be subject to the provisions set forth within this document under the heading "Refusal to Submit to Testing."

           

            . . .

                       

If an employee is scheduled for a substance abuse test and refuses to take the test, the employee may be terminated as a "Voluntary Quit--Personal Reasons" and will be ineligible to reapply with the company for a period of twelve (12) months from the date of refusal.

 

FACTS

 

            The employer is in the business of transporting cement and asphalt in the area.  It employs about 800 workers many of whom are truck drivers, including the grievant.

            On August 15, 1996, the human resources director for the employer, Lori Chavez, conducted an unannounced, on-site drug test at plant no. 11.  Because of a power outage at plant no. 12, it was necessary to also test drivers from that plant who were sent to No. 11.  Chavez relied on plant supervisors for the names of employees who were to be tested.  A total of 231 employees were tested by having them give urine specimens that were forwarded to a laboratory for analysis.

 

            The grievant arrived at plant no. 11 at approximately 5:00 a.m. on August 15th.  Another truck driver told her she would have to take a drug test that day.  According to her testimony, no one with any authority told her to take the test.  Previously, she had only taken the test when someone with authority told her to do so.

            The grievant testified that she made three deliveries on the 15th of August and was at no time told to take the drug test.  When she finished her last load, dispatching personnel told her to go back to plant no. 12.  She worked the day following the 15th, but was not offered the opportunity of taking the test.

            The grievant was aware that when the employer conducts drug tests all employees who are scheduled to take it are to do so before they punch out.

            On August 19th, the grievant made a written statement about what happened on the 15th.  She stated she had been dead headed to plant no. 11 from no. 12.  The dispatcher, Jerry Kinsey, called her and said he needed her for a load next.  She got up and asked if she was going to take the drug test at that time or did the dispatcher have a load for her.  The dispatcher said the had a load for her.  He also told her to call central dispatching after she delivered the load to see where they wanted her to go.  She was later told by central dispatching to go back to plant no. 12.

            The grievant's supervisor, Mark Dillon, testified that when he found out that she had not taken the test, he called her in and talked to her about it.  He asked her if she was aware the drug test was going on.  She replied that she was aware it was going on, but no one had told her to go down and take it.  Later she claimed, according to him, at the termination interview, that she did not know there was a test being conducted.

            Terry Kahl, a foreman at plant no. 11 testified he had a conversation with the grievant on August 15th.  He asked her if she had given her sample yet.  She stated she had not but would have to get over there.

            Jerry Kinsey, a dispatcher who was subsequently terminated for stealing employer property, told the grievant's supervisor that he had told her to take the test.  Kinsey signed a written statement to that effect.  A print out of a computer entry for August 15th related to the grievant's activity that day shows a notation "take urine test" for 9:15 a.m.

            Bill Allen, a fellow employee of the grievant, entered plant no. 11 on the 15th of August, but he did not take the drug test.  Instead, he left.  When it was discovered that he had not taken the test, he was called back by his supervisor who asked if he was aware there as an on-site drug test going on and informed him he needed to come back and take it.  Allen had not been informed previously about the test.

            The employer has sent employees to another specimen collection facility under circumstances where the employee was scheduled at a particular on-site drug test but had the day off.  The human resource director made alternative sample-giving arrangements for herself once when the facilities were considered by her to be less than desirable.

            Another driver, Gabe Valencia, arrived at plant no. 11 and was told about the on-site test.  Upon his arrival, the dispatcher told him not to take the test then but to do so later.  He then left with a load and was dispatched to go back to plant no. 12 after he finished.  He never took the test because he received an emergency call from his wife saying he was needed at the hospital where his son was.  He informed central dispatching and returned his truck to plant no. 12.  If he had gone back to plant no. 11, he would have been tested.

            August 15 was an unusual day at plant no. 11 inasmuch as there was a large influx of drivers and trucks from plant no. 12 where the power outage had occurred.  No signs were posted indicating a drug test was in progress.

            Jim Tyson, another driver for the employer, was not notified by a fellow worker that a drug test was being conducted at plant no. 11.  When he arrived on the premises, however, no one told him to take the test and he left without doing so.  Tyson was not scheduled to be tested and Ms. Chavez did not know he was on site.  On previous occasions when he took the drug test someone with authority always told him to do so.   Dispatchers are usually the ones who tell drivers to park their trucks and go take the test.

            The human resources director has had employees take the paperwork necessary for drug testing home and she has had them do it the following day.  Paul Wilsher, a former employee who worked for the employer for 19 years, testified he took the test the following day after he was unable to provide a sample on the day of the scheduled test.

            The employer has the means to know when an employee has not taken a drug test and to notice the employee and have the test done.  With its computer system, the employer could ensure that all who were scheduled for the test were in fact tested.

POSITION OF EMPLOYER

            The employer contends that the collective bargaining agreement requires that the union prove the termination of the grievant was unjust. The employer is not required by the agreement to carry the burden of just cause in any arbitration.

            The employer's policy provides that failure to take the test may result in termination.  The question is whether the grievant was told by management personnel to take the test.  If she was, her failure to do so warranted termination.

 

            The weight of the evidence is contrary to the grievant's story.  Jerry Kinsey stated he told her to take the test.  His statement is verified by his computer entry and is inconsistent with the grievant's claim.

            Terry Kahl, a plant supervisor, testified he asked the grievant if she had given her sample and she said she had not, but would.  She acknowledged she knew about the test.  To make her case, the grievant must allege Kinsey and Kahl lied and she must explain the computer entry.

            According to her own written statement, the grievant told Kinsey she was going to take the drug test.  She testified she looked for the "wagon", did not see it and assumed there was no test going on.  Although the grievant claimed she only heard about test once, from the fellow driver.  Others testified that when a test is done, it is the talk of the plant.

            Although the employer does not contend the grievant had a duty to take the test based solely on hearing about it from other drivers, the unreliability of her testimony that no one monitored the test the rest of the day casts doubt on the remainder of her testimony, including her denials of the conversation with Kinsey and Kahl.

            The employer disputes that drivers must be told by supervisors to take the test.  Statements that in the past drivers have been told to take the test are irrelevant.

            Tyson's situation is different than the grievant's.  While Tyson heard about the test from another driver over the radio, the dispatcher, who did not operate out of plant no. 11, did not tell him to take the test.  There was no basis for any discipline of Tyson because he was not told to take the test, unlike the grievant.

            Valencia was told to take the test after the next load, but an emergency intervened.  Therefore, there is no inconsistency in his treatment.  The grievant was told to take the test and failed to do so with no excuse and no extenuating circumstances.

POSITION OF THE UNION

            The union contends that the grievant was discharged without just cause because she did not purposely avoid the drug test.  Her missing the test was determined by circumstances and her obeying orders from her dispatcher.  He told her to take the last load and then call central dispatching for instructions.  Central dispatching told her to return to her home plant.

            No one with authority told her to go out of service and take the time to go to the test site, a nonvisible site without posted signs.  The site was in a building unfamiliar to the grievant.

            The employer has a sophisticated computer system making it easy to keep track of drivers.  With such system, it would have been easy to recall the grievant to plant no. 11 before the end of her day to take the test.

            In the past, other arrangements have been made to test other drivers later the same day at another collection center or the following morning.  None of these arrangements was made for the grievant.

            Ms. Chavez, who had purposely made other arrangements for herself, stated there was one other employee who came to plant no. 11 and did not take the test.  The grievant was not given the same opportunity to return and take the test.  By the end of the test, the grievant had been told to punch out and go home by central dispatchers.

            Although Ms. Chavez testified that Jerry Kinsey said he told the grievant to go take the test and Kinsey signed a statement to that effect, Kinsey should not be believed.  He was discharged for stealing employer property.

            Drivers are not allowed to take themselves out of service for any reason.  Only a supervisor or dispatcher can do that.  A driver does not have the right to punch out at the end of the day without permission from dispatch or a supervisor.

            Terry Kahl did not specifically tell the grievant to go take the test.  He said he assumed she knew about the test and would take it before the end of the day.  Most of his discussion with the grievant on August 15th was about matters unrelated to the test.

            The employer's policy makes it the responsibility of supervisors to ensure that all employees take the drug test.  Arrangements for the grievant to take the test the following day would have been made, as had been done for others.

            The grievant was doing exactly as she was told to do by her supervisors.  Any variance from orders by her would have subjected her to disciplinary action, including termination.

            The on-site drug tests conducted by the employer are above what is required by the U.S. Department of Transportation.  It is an employer policy and it is the employer's responsibility to either test each employee on-site or make arrangements to do the test at a later time.  There is no penalty if an employee is not tested on the same day scheduled.

OPINION

            As the employer argues, the parties' collective bargaining agreement contains an unusual just cause provision.  It sets forth several specific grounds for which the employer is prohibited from discharging an employee, then it goes on to say, with those exceptions, the employer may discharge only for just cause but will not be required to carry the burden of just cause in arbitration.  The employer maintains this means the employer is relieved of the burden of proving the discharge was for just cause and the union assumes that burden.  The union offered no argument containing a contrary meaning.

 

            Burden of proof is a term used to designate the party that has the obligation of establishing by evidence the ultimate fact or issue to be proved.  It contains two separate parts:  1) the initial burden of going forward with the evidence, and 2) the burden of persuading the trier of fact on the ultimate violation of fact or issue.  Hill and Sinicropi, Evidence in Arbitration, second edition, BNA 1980, p. 39.

            The employer made its case first at the hearing, therefore, that part of the burden of proof was not in dispute.  Since the union made no argument to the contrary and because the language of the agreement is clear, the union had the burden to persuade the arbitrator by a preponderance of the evidence that its position on the issue of whether the grievant was discharged for just cause was the more reasonable one. The evidence on the record is persuasive.  The union carried its burden and proved that the discharge of the grievant was not for just cause.

            That conclusion is based not upon a resolution of credibility of witnesses, but rather upon principles of just cause.  It is basic to the principle of just case that an employer impose discipline consistent with this prior treatment of the offense.  In the instant case, the employer failed to do so.  The employer afforded less favorable treatment to the grievant than it had to other employees who were similarly situated.  The unequal or less favorable treatment was the result of its inconsistent enforcement of its policy on substance abuse.  Other employees were treated in a more favorable manner.

            The employer on several occasions and under a variety of circumstances permitted employees a certain amount of flexibility in taking the drug test.  Alternative arrangements were made to accommodate certain employees.  Other arrangements were made to test other drivers later the same day at another collection center or the next day at an alternate site.

 

            Moreover, the employer's policy itself requires the supervisor ensure that such employee has been tested and consistently enforce the policy.  The onus is properly placed on management to see that employees are tested and the policy applied consistently.  If an employee refuses to submit to the testing, a different part of the policy addresses that situation.

            The policy also states no employee will be permitted to leave the site of the test for the day until the employee takes the test or other arrangements for collection of the sample have been made by an employer representative.  Again, the responsibility is placed on management to either have the employee tested that day or make other arrangements.

            Having found the employer did not have just cause to discharge the grievant, I will enter an award sustaining the grievance and order a make whole remedy.

AWARD

            The grievance is sustained.  The employer is hereby ordered to make the grievant whole by:

            1.  Reinstating her to her former position with full seniority and other rights.

            2.  Giving her back pay, minus interim earnings, from the time she was discharged until the date of her reinstatement.

            3.  Specifically making her whole in regards to her pension, health and welfare fund.

            Dated this ____day of February, 1997.

 

 

                                                                                    ______________________________

                                                                                    Jack H. Calhoun

 

116-96AZ 

 

 

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