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Title: Recall Secure Destruction Services, Inc. and Teamsters Local Union No. 853
Date: January 11
, 2008
Arbitrator: Allen Pool
Citation: 2008 NAC 107

 

C. ALLEN POOL, Arbitrator
Arbitrator's Case No. 10-30-07

IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES

Teamsters Local Union No. 853

                            and

Recall Secure Destruction Services, Inc.  

(Raymond Corral Termination)      

 

ARBITRATOR'S

OPINION AND AWARD

January 11, 2008

 


 

           

This Arbitration arose pursuant to Agreement between the International Brotherhood of Teamsters, Local Union No. 853, hereinafter referred to as the “Union, and Recall Secure Destruction Services, Inc., hereinafter referred to as the “Company”, under which C. ALLEN POOL was selected by the parties to serve as the Arbitrator.  The Parties stipulated that the matter was properly before the Arbitrator and that his decision shall be final and binding.

            The hearing was held in Oakland, California on October 30, 2007, at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and argument.  The witnesses were duly sworn and a written transcript was made of the hearing.  Written closing arguments were timely submitted to and received by the Arbitrator on December 28, 2007 at which time the record was closed.

APPEARANCES:

For the Union: For the Employer:
Teague P. Paterson 
Attorney at Law 
Beeson, Tayer & Bodine 
1404 Franklin Street, Fifth Floor 
Oakland, CA 94612 
510.625.9700


                                                                       
W. Christopher Arbery 
Attorney at Law
Hunton & Williams
Bank of America Plaza, Ste. 4100

600 Peachtree Street, N.E.
Atlanta, GA 30308-2216
404.888.4000



STIPULATED ISSUE

            Was the termination of Raymond Corral for just cause?  If not, what shall be the appropriate remedy?

RELEVANT PROVISIONS OF THE AGREEMENT

Section 1 Discharge and Discipline

            It is mutually agreed that the Employer has the right to discharge or otherwise discipline any employee for just cause.  No warning notice need be given to any employee before s/he is discharged if the cause of such suspension or discharge is for just cause.  Just cause for discharge or discipline shall include, but not be limited to …… violation of the Employer’s Drug and Alcohol Policy …..

Section 2

            Notification ……. The Union shall be sent a copy of each warning notice and in a case of the discharge or suspension of a regular employee who has completed his probationary period, shall be given notice of same on the day of the discharge or suspension by telephone, facsimile or letter posted in the U.S. Mail.

BACKGROUND

            The Company provides secure documentation destruction services to law firms and other organizations that have a need for such services.  The Company’s corporate office is located in Atlanta, Georgia with regional offices throughout the nation.  The Company has a Drug and Alcohol Abuse policy that is consistent with regulations set down by the U. S. Department of Transportation (DOT).  All drivers holding a California Commercial Driver’s License (CDL) fall within the jurisdiction of DOT regulations. 

            Consistent with DOT regulations and its own Drug and Alcohol Abuse policy the Company has procedures for random drug and alcohol testing of drivers holding a CDL.  The random testing of drivers is administered by contract with a third party, First Advantage Corporation.  Using a list of all Company drivers holding a CDL, First Advantage periodically generates a random list of drivers selected to undergo testing.  The Company’s regional offices are notified of the drivers selected for testing and the selected drivers are given instructions to report to a laboratory for testing.  Once a driver has been given written instructions to report for testing, the testing and subsequent analysis, i.e. the chain of custody, is out of the hands of the Company.  The results are reported to the Atlanta corporate office and if a driver’s test result is positive the Company’s regional office is notified.  

            The Grievant, a five-year employee of the Company, held a CDL and worked as a commercial driver until he suffered an on-the-job injury to his upper back on September 21, 2005.  Following his injury, the Grievant was placed on restricted, light duty that involved no driving and no bending or twisting of the neck. (U-2).  The injury, first diagnosed as a sprain/strain, worsened and was later found to be a serious injury to the upper spine, a herniated disk that necessitated surgery on his spine in June 2006.  Just prior to the surgery, the Grievant was off work for two months and after the surgery he was off work for an additional three months.  He returned to work in September 2006 (Tr. p. 114).

            Following the Grievant’s return to duty from the surgery, his work restrictions continued and again included no driving or bending/twisting of the neck. For a short period of time following his surgery, the Grievant served as a “ride-along-helper” to show the driver the route.  This included no physical activities.  However, because of the pain resulting from riding in a vehicle, the Grievant’s duties as a driver’s helper stopped and he was assigned to “desk” work (Tr. p. 139). 

            Although he performed no duties as a commercial driver during this time, the Grievant retained his status as a commercial driver with the Company. The evidence record showed that throughout this entire period, from the time of his injury in September 2005 to the time he was terminated in June 2007, the Grievant was on light duty, on work restrictions, and performed no duties that required driving commercial vehicles (U-2, U-3, U-4, U-5, U-6, & U-7) (Tr. pp. 92, 103).   

             The surgery performed in June 2006 on the herniated disk was not successful and the Grievant’s medical condition worsened. With his worsening condition, the Grievant was placed on several prescribed medications: Narcan, Ambien, Soma, Naprosyn, Neurontin, and Valium (Tr. p. 119).  He was also scheduled for a second surgery that was performed in July 2007, a month after his termination.  According to the testimony of Mr. Synder, the Company was aware that the Grievant might be scheduled for a second surgery (Tr. p. 92).

            In June 2007, the Company’s office in Oakland was notified by First Advantage that the Grievant had been randomly selected for drug testing (C-4).  On June 6, 2007, the Operations Manager, Shawn Snyder, informed the Grievant of his selection, gave him the requisite form, and instructed him to report to First Advantage’s Fremont Urgent Care Center for testing. The Grievant reported as instructed and willingly participated in the testing (C-5). 

            Following the testing, Advantage’s Medical Review Officer (MRO) called the Grievant.  He testified that the MRO asked if “he was taking any type of medications or if he had taken THC pills or ate muffins that may have contained …. I forgot what that was called.”  The MRO “asked about another drug that I was not familiar with.  I told him no.”  He, the MRO, mentioned “it shows positive for THC.”  The Medical Review Officer informed the Grievant that he had tested positive for marijuana and that the results would be reported to the Company’s Atlanta office (Tr. p. 124) (C-6). 

            The Company’s General Manager in Oakland, Scott Cervo, upon learning that the Grievant had tested positive, ordered the Grievant to leave work, go home, and wait for a call.  The next day, on Thursday June 7th, the Company’s Operations Manager, Shawn Snyder, telephoned the Grievant and told him his check was available.  The Grievant, on the same day, reported the incident to the Union’s Business Agent, Jessie Casquirie. 

            At this point, the Grievant had not received notice from the Company that he had been terminated.  Mr. Casquirie advised the Grievant that they should wait to hear from the Company.  On cross examination, Mr. Synder testified that he was not the terminating manager and that he did not know if a letter/notice of termination had not been given to the Grievant or to the Union.  He testified that the decision to terminate the Grievant was made by his supervisor, Scott Cervo, and that the Grievant’s case “was taken to corporate level” (Tr. pp. 87-89). After a day or so and hearing nothing from the Company regarding the discharge, the Union filed a grievance protesting the termination.  The grievance was then processed to this arbitration.

POSITION OF THE COMPANY

             Company had just cause to terminate the Grievant. He violated the Company’s drug and alcohol abuse policy, his test results were positive for marijuana, and the Collective Bargaining Agreement states that that is just cause for termination.

            The Grievant held a commercial driver’s license (CDL) and is therefore subject to the Department of Transportation’s (DOT) regulations.  DOT regulations include management’s right to conduct random drug and alcohol testing of drivers holding a CDL license.  The Grievant was on the Company’s rolls as a commercial driver, he held a CDL, he was in the position of a commercial driver, and he was being paid on the scale of a commercial driver. 

            This is not a case about the nuances of the DOT regulations.  It is only about the Company’s right to terminate the Grievant for just cause.  He violated the Company’s drug and alcohol abuse policy, the test results proved the violation, and the CBA says that is just cause for the termination.  The grievance should be denied.

POSITION OF THE UNION

                The Company did not have just cause to terminate the Grievant.  Company policy applies only to on-the-job conduct. There was no indication he was under the influence of drugs at the time he was directed to take the drug test. The efficacy of the test was called into doubt because the Grievant was on several kinds of prescription drugs at time.  The policy states that employees who test positive will be terminated after “appropriate verification” by the Medical Review Officer. 

Prior to taking the drug test he had been on work restrictions that were preventing him from performing any functions that could be considered “safety-sensitive functions” under the Company’s Drug and Alcohol Abuse policy.  Company policy applies only to those who actually perform, and are ready to perform or are immediately available to perform safety-sensitive functions.  The Grievant was not performing and was not available or ready to perform such functions due to his health and concomitant work restrictions. 

The negotiated language of the CBA requires that the Company give notice to the Union when a bargaining unit member is to be discharged.  The parties bargained for this requirement so the Union could intervene early on and conduct an appropriate investigation.  The required notice was not given to the Union.  The Grievance should be sustained and the Grievant be reinstated to his position with the Company and made whole for all lost income and benefits.

DISCUSSION

            The primary question was whether the Company had just cause to terminate the Grievant from his employment with the Company.  Before proceeding, a few comments about the just cause standard may be helpful.  The just cause standard has been and still is a much discussed concept among professionals in the labor-management community.  The essence of the concept is a system of fairness.  Although the just cause standard lacks a precise definition, it is not some free floating notion without referents.  The referents include, among others, due process, a fair and impartial investigation, notice, and a discipline commiserate with the offense.  The applicable referents in any case may vary with the circumstances. There is, however, one referent that is nearly inviolable.  That is the requirement that there must be proof of misconduct for if there was no misconduct, there can be no cause for any discipline or discharge. 

            The negotiated language in the agreement was clear.  A violation of the Employer’s Drug and Alcohol Abuse Policy, along with other forms of misconduct, is just cause for discharge.  The Grievant tested positive for marijuana.  Employer’s contention was that the Grievant’s positive test was just cause for his termination.   In support of its position, the Employer placed into evidence its policy on abuse of alcohol and controlled substances (C-3, pp. 4-9) and its employee handbook (C-2, pp. 26-26). 

            Page 26 of the Employee Handbook clearly stated that the “manufacture, distribution, dispensation, possession, or use of any illegal drug, alcohol, or controlled substance while on Recall premises or Recall Business is prohibited” (emphasis added).  The Handbook also stated that the Company is “determined to eliminate the use of illegal drugs, alcohol, and controlled substances at our work site” (emphasis added).  The Handbook further stated that “Employees who test positive to drug and/or alcohol tests and administered for any reason will be terminated after appropriate verification by the Medical Review Officer (MRO) (emphasis added) (C-2, pp. 26-27).

            The Company’s policy on Alcohol and Controlled Substance Abuse stated that “No driver shall report for duty or remain on duty requiring the performance of safety-sensitive functions when the driver uses any controlled substance”.  The policy went on to state that “No driver shall report for duty, remain on duty, or perform a safety-sensitive function if the driver tests positive for controlled substances (emphasis added).  The policy addressed what may happen when a driver is subjected to a random drug test and a “Return to Duty”:  Before a driver returns to duty requiring the performance of a safety-sensitive function after engaging in conduct prohibited by Subpart B of this part concerning controlled substances, the driver shall undergo a return-to-duty controlled substance test” (emphasis added).  Further, the policy offered assistance to a driver in resolving problems associated with alcohol misuse or controlled substance use through the Company’s EAP.  The policy stated that in the event a driver tests positive for drugs DOT regulations and the Company policy requires that the driver must immediately cease performing safety-sensitive functions and the employee shall be advised of resources available in evaluating and resolving problems associated with misuse of controlled substances.  The policy also stated that “drivers who violate the alcohol misuse and controlled substance regulations will be terminated”.   Lastly, the policy stated that “Before returning to duty, the driver shall undergo a return to duty test for …… a controlled substances test with verified negative result” (C-3, pp, 4-9). 

            The Grievant did not violate the Company’s alcohol and drug abuse policy.  The Grievant’s positive test for marijuana itself was not cause to terminate.  The Company’s policy refers to prohibited conduct while on the job site and on company business.  At the time of the test for drugs, the Grievant was not performing any safety-sensitive functions.  His daily duties did not require the performance of any safety-sensitive functions.  He was unable perform such functions.  He had been unable to perform such functions for an extended period of time and he was not ready to perform such functions due to his health and concomitant work restrictions.  Therefore, the Grievant did not violate the Company’s alcohol, drug, and substance abuse policy.

            The last issue to be addressed was the Company’s failure to give notice to the Union of the Grievant’s termination as required by Article VI, Section 2 of the Collective Bargaining Agreement (CBA).  The parties mutually bargained for this requirement.  Inherent in every CBA is a covenant of good faith and fair dealing.  It means that the parties have an obligation to work together to ensure that the negotiated agreement will be administered fairly.  In this instance, the Company did not act in good faith thereby violating the Article VI, Section 2 of the Agreement.  

            For the reasons discussed in the foregoing, the Arbitrator’s conclusion is that the Company did not have just cause to terminate the Grievant.  The Grievance is sustained. The Company is directed to immediately reinstate the Grievant to his position with Company and to make him whole for all lost rights and benefits and income with interest less other income earned.

AWARD

            The Grievance is sustained.  The Company did not have just cause to terminate the Grievant, Raymond Corral.

REMEDY

            The Company is directed to immediately restore the Grievant to his position with Company and to make him whole for all lost rights and benefits and income with interest less other income earned.

            The Arbitrator retains jurisdiction over any dispute that may arise out of the implementation of the remedy. 

 

 

 

___________________________                                                      Dated:  January 11, 2008

C. ALLEN POOL, Arbitrator

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