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Title: Employer and Union
Date: September 27, 2001
Arbitrator: Philip Kienast
Citation: 2001 NAC 137

 
In the Matter of Arbitration

          between

Employer

          and 

Union

 

OPINION
AND
AWARD

 

                                                                                            

OPINION

            This proceeding is in accordance with the parties’ Agreement.  A hearing in this matter was held on June 26, 2001 and the record closed upon receipt by the Arbitrator of post hearing briefs on August 20, 2001.  The parties stipulated the matter was properly before the Arbitrator for disposition and that the issue for decision was:

Did the Employer violate Article 10 or 14 when it discharged Dan Hagemeister?  If yes, what is the appropriate remedy?

Pertinent Agreement Provision

  ARTICLE X – DISCHARGE, SUSPENSION AND RESIGNATION

A.      In all cases of complaints arising over an alleged unjust discharge, suspension or layoff, a written notice of such complaint must be filed with the Company within ten (10) working days after notice to the employee affected.

. . . .

E.      The Company reserves the right to discharge or suspend any employee for proper cause.

ARTICLE XIV – SETTLEMENT OF DISPUTES AND GRIEVANCES

            All grievances arising out of the application of the Articles of this Agreement shall be governed in the manner of settlement by the terms of the Agreement, according to the following procedure:

            First, any employee may make a complaint to their Supervisor or other immediate supervisor either individually or through their representative.  Such complaint shall be submitted within 30 calendar days of the occurrence of the cause therefore.

            Second, if satisfaction is not obtained as provided in the first step above within 48 hours after such complaint is made, the employee may, within 14 calendar days, refer the matter in writing to the Plant Manager of Puget Sound Plant by the submission of complete information and facts, including the particular part of the Agreement that allegedly has been violated, by either of the following methods:

1)    The employee may present the matter through the representatives of the Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local 1-591, or

2)    The employee may present the matter individually or in such other manner as they may desire.  The Plant Manager shall, within ten (10) working days after the complaint has been received, render a decision in writing.

            Third, if still dissatisfied, the employee, or their representative, may, within 14 calendar days thereafter, notify the Plant Manager in writing of their desire to submit the matter to a Board of Review.  Such notice shall set forth the particular part of the Agreement that allegedly has been violated, it being understood that the jurisdiction of the Board of Review is expressly limited to the application of the Articles of this Agreement.

Background

            Equilon Enterprises is a joint venture which involves the West Coast assets of Shell and Texaco Oil Companies.  The grievant, Dan Hagemeister worked as an operator at Equilon’s Anacortes, Washington refinery.  In early 2000 the Employer implemented a new substance abuse policy covering the employees of the joint venture.  The Union did not agree to the new policy and specifically reserved its right to challenge the reasonableness of the policy when it was applied to unit members.

            Mr. Hagemeister’s operator position was a safety sensitive job that permitted he be randomly tested pursuant to the Employer’s substance abuse policy.  In January of 2000, the grievant tested positive for cannabinoids (J10) and he subsequently entered a rehabilitation program (E2).  On February 22, 2000, Mr. Hagemeister signed an agreement to abide by certain conditions in order to return to employment with Equilon.  Condition 6 of this agreement required he submit to drug testing.  The letter of agreement concluded that “non-compliance” with the agreement “is likely to result in termination.” (E3)

            On September 8, 2000 the grievant was administered a drug screening test.  Analysis of the sample was positive for cannabinoids (J9).  Mr. Hagemeister was subsequently terminated on September 22 for violating his return to work agreement as well as violating the Employer’s substance abuse policy.

            The Employer contends the grievant had repeated warnings that his failure to pass drug tests would lead to his discharge.  It maintains its substance abuse policy is reasonable and required for the safe operation of its refinery.  It argues its test procedures and analysis protocols are valid and reliable.  Finally, the Employer notes the grievant had been given a second chance and violated the return to work agreement he signed on February 22, 2000.

            The Union contends the Employer’s drug policy is arbitrary and unreasonable.  It argues the screening level set by the DOT for cannabinoids is 50/ng/ml whereas the Employer’s is 20.  The Union maintains that under the DOT standards the grievant’s initial screening would have come back negative given the confirmatory analysis of the grievant’s urine sample disclosed only 27 ng/ml of cannabinoids.

            In addition, the Union contends the Employer failed to respond to the grievance within the 10 working day window explicitly required in Article 14.  It argues the Employer’s failure should result in the remedy requested in the grievance being granted by the Arbitrator.

Analysis and Conclusions

            Beginning with the procedural issue raised by the Union, the evidence is clear and convincing the Employer failed to respond within the ten (10) working days provided for in Article 14 of the Agreement.  It is undisputed the grievance was received by the Employer on September 28, 2000.  It is also undisputed the parties begin count the following working day as the first day in the 10 working day period.  A comparison of calendar dates to working days is shown below: 

Friday, September 29
Saturday, September 30
Sunday, October 1
Monday, October 2
Tuesday, October 3
Wednesday, October 4
Thursday, October 5
Friday, October 6
Saturday, October 7
Sunday, October 8
Monday, October 9
Tuesday, October 10
Wednesday, October 11
Thursday, October 12
Friday, October 13
Saturday, October 14
Sunday, October 15

 

day one
non-work day
non-work day
day two
day three
day four
day five
day six
non-work day
non-work day
Holiday, non-work day
day seven
day eight
day nine
day ten
non-work day
non-work day

            The Employer’s human resources manager, Paul Howes, testified the parties’ customary way to fix compliance with time limits was through mail and receipt dates as shown on certified mail documents.  The record discloses the postmark on the Employer’s response to the instant grievance was October 16 (J5) or the eleventh (11th) working day after it received the grievance.  Therefore, the Arbitrator concludes the Employer did fail to timely reply to the grievance in accordance with Article 14.

            The Union maintains that as a result of this failure, the appropriate remedy should be the granting of the remedy requested in the grievance.  The Arbitrator would find merit in this argument if in fact the language of Article 14 indicated this should be the remedy for an untimely response by the Employer.  However, Article 14 is silent as to appropriate remedies for failure of either party to meet the time limits for grievance filing and response.

            It is a well established rule of contract construction that provisions should be read to avoid forfeiture.  The Union’s proposed remedy for the untimely response would effectively forfeit the Employer’s right to have the grievance submitted to arbitration for a final and binding decision. 

            Yet another well established rule of contract construction holds that an Agreement be read as a whole such that each part can be given force and effect consistent with each other part.  In this regard, the parties specifically address forfeiture only once, and that in connection only with failure to proceed to a formal hearing within a two year period.  In such an instance—and only in such an instance—do the parties agree a grievance “shall be null and void,” i.e., they specifically agreed on forfeiture as a remedy.

            By contrast, Article 14 does not state that a grievance will be null and void if not “submitted within 30 calendar days of the occurrence of the cause therefore.”  An arbitrator could not decide a grievance filed 35 days after an occurrence was null and void given the parties expressly provide for forfeiture only in the case of a formal hearing not being conducted within a two year period.  Likewise, this Arbitrator cannot grant the forfeiture remedy requested by the Union for the Employer’s tardy response to the grievance over Don Hagemeister’s discharge.

            Absent an evidentiary showing by the Union that its or the grievant’s position was prejudiced by the one day the grievance response was late, the Arbitrator finds no remedy is called for in this instance.  In the same fashion, the Arbitrator would find no remedy called for in the case of a late filed grievance, absent a showing by the Employer that it was somehow harmed by the late filing.

            Turning to the merits, it is undisputed the grievant was in violation of the Employer’s substance abuse policy and the return to work agreement signed by Mr. Hagemeister seven months earlier for a prior substance abuse violation.  The clear point of contention is the reasonableness of the Employer’s substance abuse policy.  The Union specifically argued that the test levels for marijuana (cannabinoids) were unreasonable.  The only evidence presented by the Union to support this argument was a comparison of the levels set by the Employer with those levels set by the U.S. Department of Transportation for employees in similar safety sensitive jobs.  The Union maintains the grievant’s initial or screening test would have been negative if the DOT cutoff level of 50 ng/ml had been used, rather than the 20 ng/ml set by the Employer’s policy.  Without a positive result on the screening (EIA) test no confirmatory (GCMS) test would have taken place.  Absent the confirmatory test the Employer has no evidence of a violation of either the Employer’s drug policy or the grievant’s return to work agreement.

            If one accepts the premise that the cutoff level should be 50 rather than 20, then the Union’s argument is persuasive, but only as it applies to routine random testing of safety sensitive employees.  But Mr. Hagemeister had agreed to a condition as part of his return to work agreement that permitted a far wider scope of testing on the part of the Employer.  This return to work agreement dated February 22, 2000 states in pertinent part (E3):

6.    Your return to work drug and alcohol test must be reported by the Company as “negative” before you will be considered for return to duty.  You should understand that more than one specimen may be required before consideration is given to return to duty.  For the 48 months following your return to work, you will be subject to unannounced drug and alcohol testing.  The results of these tests must be negative.  This will be arranged and paid for by the Company.  Additionally, Valley General Behavioral Health Services may also perform substance abuse testing at their discretion, with the expense of those tests being charged to you and/or appropriate health care coverage.

        Any test results which reveals the presence of illegal or illicit drugs or alcohol will in all likelihood result in an immediate review by your Human Resources/Management and Equiva Medical.  This review may result in job removal pending a medical evaluation and/or disciplinary action up to and including discharge if a violation of the Substance Abuse Policy has occurred.  This will include drug and alcohol testing performed by either the Company or Valley General Behavioral Health Services.  [Emphasis added.]

            Given this specific language that “any tests which reveals the presence of illegal or illicit drugs. . . .” the Employer could properly consider both the screening and confirmatory tests in its decision.  The confirmatory test disclosed a level of 27 ng/ml for cannabinoids, a level not only above the Employer’s level of 10 ng/ml but also the lower DOT level of 15 ng/ml.

            In light of the discretion given the Employer to test the grievant for drugs in the return to work agreement, the Arbitrator concludes it properly detected illegal drugs as well as violation of its policy relative to cannabinoids (marijuana).  Even if the Employer’s policy used the DOT level for confirmatory tests, the grievant’s level was 27 ng/ml, almost double the DOT level of 15 ng/ml for a GCMS test.

            Moreover, there is no persuasive evidence in the record of this proceeding that the levels set by the Employer for screening and confirmatory tests for cannabinoids are unreasonable.  The mere fact that they differ from DOT levels is insufficient evidence the Employer’s policy/rule was unreasonable.  Not only can reasonable people differ, but more importantly, there is no persuasive evidence in the record of this proceeding to show either the DOT’s or the Employer’s levels to be unreasonable.

            In conclusion, the Union has failed to conclusively prove the cannabinoid levels of the Employer’s Substance Abuse Policy were set arbitrarily or are otherwise unreasonable.  Equally important, the grievant specifically agreed to be tested at the Employer’s discretion as part of his return to work.  The test in question revealed the presence of an illegal substance at a level in excess of the GCMS level set by the Employer as well as the DOT.  Therefore, the Arbitrator had just cause to terminate Mr. Hagemeister.

AWARD

1.       The Employer did not violate Article 10 of the Agreement.  It had just cause to discharge Mr. Hagemeister.

2.       The Employer did violate Article 10 of the Agreement.  No remedy is ordered in the absence of evidence this violation harmed the grievant or the Union.

 

 

___________________________________
Philip Kienast
September 27, 2001

 

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