Secure Destruction Services, Inc. and
Local Union No. 853
ARBITRATION PROCEEDINGS PURSUANT TO
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.
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 …..
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
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.
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.
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.
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
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.
Grievance is sustained. The Company
did not have just cause to terminate the Grievant, Raymond Corral.
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.
Arbitrator retains jurisdiction over any dispute that may arise out of the
implementation of the remedy.
Dated: January 11, 2008
C. ALLEN POOL, Arbitrator
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028