This Arbitration arises pursuant to Agreement between Oregon Public Employees Union ("Union"), and State of Oregon, Department of Transportation ("Employer" or "Department"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

Hearing was held on February 11, 1997, in Salem, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties submitted the matter on closing oral argument.

APPEARANCES:

On behalf of the Union: 

Mr. Dave Freeland, Oregon Public Employees Union, 1730 Commercial Street, SE, P. O. Box 12159, Salem, OR   97309-0159 

On behalf of the Employer: 

Gary M. Cordy, Esquire, Assistant Attorney General, Labor and Employ­ment Section, Department of Justice, 1162 Court Street NE, Salem, OR   97310 

 

              ISSUE

Was the dismissal of the Grievant for just cause; if not, what is the appropriate remedy?

 

      RELEVANT SECTIONS OF AGREEMENT

ARTICLE 20 - DISCIPLINE AND DISCHARGE

Section 1.  The principles of progressive discipline shall be used when appropriate.  Discipline shall include, but not be limited to:  written reprimands; denial of an annual performance pay increase; reduction in pay; demotion; suspension; and dismissal.  Discipline shall be imposed only for just cause.

....

LETTER OF AGREEMENT

(1995)

...

Section 5.  Consequences of Positive Tests.

When an Agency receives notice of an employee's positive test, the Agency will take one or more of the following actions in addition to removing the employee from safety sensitive functions:

a. Random, Reasonable and Pre-Employment Tests.

1. Temporarily assign the employee to non-safety sensitive functions;

2. Allow an employee to take accrued leave or leave without pay pursuant to the requirements of the Agreement if the Agency does not assign non-safety sensitive functions;

3. Refer the employee to rehabilitation and last chance agreement;

4. Take disciplinary action pursuant to the requirements of the Agreement.

....  

LETTER OF AGREEMENT

                                                                                 (1996)

...

Section 5.  Consequences of Positive Tests.

When an Agency receives notice of an employee's positive test, the Agency will take one or more of the following actions in addition to removing the employee from safety sensitive functions:

a. Random, Reasonable and Pre-Employment Tests.

1. Temporarily assign the employee to non-safety sensitive functions;

2. Allow an employee to take accrued leave or leave without pay pursuant to the requirements of the Agreement if the Agency does not assign non-safety sensitive functions;

3. Refer the employee to rehabilitation and last chance agreement;

4. Take disciplinary action pursuant to the requirements of the Agreement.

...

The parties acknowledge that an Agency, at its own discretion may decide to offer a last chance agreement to an employee as an alternative to termination.  However, nothing in the Master Agreement or this Agreement shall preclude an Agency from issuing a lesser form of discipline in conjunction with offering a last chance agreement.  ....

 

        RELEVANT DEPARTMENT POLICIES 

State Policy:  50.000.01  Drug-Free Workplace

...

(1) Policy: State agencies shall maintain a drug-free workplace in order to promote employee safety, health, and efficiency.  Accordingly:

(a) An employee shall not, in the workplace, unlawfully manufacture, distribute, dispense, possess, or use a controlled substance.

(b) Upon determining or having reasonable suspicion, under subsection (1)(c) of this policy, that an employee has not complied with this policy, an appointing authority shall take appropriate action with regard to the employee, which may include:

(A) transfer,

(B) granting of leave with or without pay,

(C) discipline up to and including termination, and/or

(D) requiring satisfactory participation by the employee in an approved drug abuse assistance or rehabilitation program.

...

(d) An appointing authority shall:

(A) grant leave with or without pay to permit any employee who so requests to participate in a drug abuse assistance or rehabilitation program.

(B) with the assistance of the [Human Resource Management] Division, establish a drug-free awareness program to inform employees of the:

(i) dangers of drug abuse in the workplace;

(ii) availability of drug counseling, rehabilitation, and employee assistance programs; and

(iii) penalties that may be imposed for drug abuse violations occurring in the workplace.

(C) provide to each employee a copy of this policy or an agency policy that applies provisions consistent with this policy.

....

 

DEPARTMENT INFORMATION SHEET ON DRUG TESTING

...

4. Who do these rules apply to?

Any ODOT employee whose position requires him/her to have a CDL is subject to the rules. ...

5. What kinds of activities are prohibited by the rules?

...

• Reporting for duty or remaining on duty while using a controlled substance, except as directed by a physician who has advised the driver that the substance does not adversely affect driving ability;

• Reporting for duty, remaining on duty, or performing a safety-sensitive function if the driver tests positive for controlled substances.

...

6.                What types of tests are required?

...

Random testing is not announced or scheduled.

...

11. What happens if a breath alcohol test is failed?

... If the breath alcohol test result is 0.04 or greater, the driver must be evaluated by a substance abuse professional and comply with any treatment recommendations.  S/he must pass return-to-duty and follow-up testing when resuming a safety sensitive job at completion of treatment.

12. What happens if a drug test is failed?

A positive drug test is handled in the same manner as a breath test result of 0.04 or greater.

....

 

PER 1-2-1, PRINCIPLES OF PUBLIC SERVICE ETHICS

...

INTRODUCTION:

As public employees ... we hold ourselves to a higher standard of conduct and scrutiny than employees in the private sector. ... Therefore, we conduct ourselves and our business to the highest ethical standards.

The high ethical standards apply to all employees in the agency, without exception.

This policy is intended to inform, guide and help us make the right choices.  It does not discuss specific situations or recite every "do" and "don't".¹ [footnote:  ¹ If you have any doubts about proper ethical behavior in any situation, you can ask for advice.  Your supervisors can give guidance or you can ask the Ethics Representative Call l-800-221-ODOT.] 

POLICY:

The following statements form the basic ethics policy:

1) All Oregon Department of Transportation employees shall conduct themselves and department business according to the highest ethical standards.

...

3) As ODOT employees, we use our best judgment to do our jobs.  We make decisions based on the facts of the situation and the values of our organization.  We guard against conflicts of interest and improper influences, or even the appearance that we have been improperly influenced.

4) ODOT employees set a positive example of public service and good citizenship by following both the letter and the spirit of laws, rules, policies and procedures.

...

Violation of this policy shall be caused for disciplinary action up to and including dismissal and may carry civil or criminal penalties as provided by law.

 

             FACTS

Grievant has been a permanent employee of the Department since June 1985.  She was promoted to leadworker on a Landscape Crew in August 1995 and held that position until her discharge on May 10, 1996.  The charges underlying Grievant's discharge revolve around drug-related activities of a member of her crew (referred to as "Employee P").  The facts are undisputed; indeed, Grievant herself brought some of the information to the Department's attention.  The parties disagree regarding the appropriate response to the information she provided.  Briefly, Grievant is charged with the following misconduct:

1.         In or around March 1995, Employee P smoked marijuana while riding in a state vehicle Grievant was driving.  Grievant did not direct Employee P to stop or report his conduct to management.

2.         In October 1995, in her office, Grievant accepted marijuana from Employee P.

3.         During 1995, Grievant had knowledge that Employee P had marijuana in his possession at work.  She did not report his conduct to management or try to dissuade him from continuing that activity.

4.         In October or November 1995, Employee P described how to use household bleach to invalidate the results of a urine test for drugs.  Grievant knew or suspected Employee P had used the technique to produce false results on a random test administered in November 1995, but failed to report his claims, knowledge, or conduct to management.

5.         Grievant had advance notice, as lead, of the November 1995 random drug test for her crew.  She told some members of her crew they "may want to start drinking water because it's hard to pee at 7:00 a.m. in the morning."  She thus alerted them to the pending drug test.

THE DEPARTMENT'S DRUG POLICIES

The Department has had a "drug free workplace" policy since the mid-1980's.  Grievant and her crew are required to have a commercial driver's license ("CDL").  As of January 1, 1995, Grievant and her crew became subject to random alcohol and drug testing.  Employees were notified of the policy both in writing and in a meeting at which both the drug testing program and the Department's policies were discussed.

Senior Personnel Officer Victoria Masengale testified the Department has a uniform policy regarding an employee who tests positive in a random test.  Such an employee is removed from safety-sensitive duties, referred to a Substance Abuse Professional ("SAP"), and put in the pre-dismissal process.  If a rehabilitation program is recommended and the employee is willing to complete it, the employee is not dismissed, but returns to work on a "last chance" basis.  Some discipline is assessed upon the employee's return to work.

Masengale testified that, before her arrival at the Department in early 1995, the Department had terminated employees who were found in possession of drugs in the workplace.  The Department has also dismissed employees who tested positive for drug use.

Grievant testified that employees who tested positive in a random drug test were usually given a last chance agreement; however, she also believed termination was possible if the employee had a bad work record.

THE DRUG INVESTIGATION

Grievant's crew works with inmates from the Santiam Correctional Institution ("SCI").  In late 1995, the Oregon State Police ("OSP") began investigating allegations that inmate members of the crew were involved in smuggling tobacco, which is contraband for inmates.  The OSP asked the Department not to take action internally on the allegations until after the police investigation had been completed.  Written reports from that investiga­tion were provided to the Department and introduced in evidence.  On November 30, 1995, the OSP reportedly found narcotics and drug paraphernalia, along with tobacco contraband and mater­i­als for trans­porting contraband, in a state vehicle and a trailer used by Employee P.^[1]

OSP Detective Terry Crawford interviewed Grievant twice on January 5, 1996.  In the first interview, he asked about reports from an inmate that Grievant had smoked marijuana in front of inmates; had given in­mates paraphernalia or showed it to them; and had engaged in sexual activities with Employee P.  Grievant testified the  inmate in question had tried to get her to agree to go out with him once he was out on parole, and had fabricated these accusations.  In the initial interview, Grievant denied any knowledge of contraband.  When asked whether she smoked marijuana on the job, she said she quit a year ago because it was not worth losing her job.  Following that interview, Detective Crawford called Grievant to notify her she was scheduled for a polygraph examination.  Later that same day, Grievant called Detective Crawford and asked to meet with him again.  In the second interview, Grievant provided the following relevant information:

*          She was aware Employee P carried bleach for the purpose of adulterating drug tests.  She said Employee P told her he dipped his fingers in the bleach, then urinated on his fingers.

*          About 1½ years earlier, Employee P smoked marijuana in a Department vehicle while she was driving.  She rolled down the window and told him it was not appro­priate, but took no steps to stop him.

*          She saw Employee P with marijuana at work on two occasions.  Over the past years, she has seen him five or less times with marijuana on him at work.

*          She asked Employee P if he was smoking on the job, and he said he was not.

*          She initially said she had never bought, exchanged, or bartered marijuana with Employee P.  She later said Employee P had marijuana in her office near the end of the work day several months earlier.  She got a small "bud" from him, took it home, and smoked it in a "bong" at her residence.

Grievant submitted to a polygraph examination on January 9, 1996.  The examiner reported Grievant answered truthfully that she had not supplied contraband to inmates on her work crew; had not smoked marijuana in front of inmate crew members; and had not seen inmate crew members smoke pot at work.  The record of the interview contained similar information to that Grievant provided earlier.  However, the account of the incident in which Employee P smoked in the state vehicle was reportedly in March 1995 rather than a year and a half earlier, and there was no mention of Grievant telling him it was inappropriate.

In March 1996, the District Attorney notified the Department he had declined to prosecute Employee P.  At that point, the Department began considering its response to the information from the investigation.  Masengale testified a family medical concern, schedule conflicts, and a change in the assigned representative from the Attorney General's office delayed action.  The Department issued a pre-dismissal letter on April 15.

GRIEVANT'S TESTIMONY

Grievant testified she was rattled by the allegations addressed early in the first interview, but told Detective Crawford everything she remembered at the time.  As she drove to work and, later, talked to Personnel Analyst Cindy Smith about the interview, she remembered more information.  At Smith's urging, she contacted Detective Crawford to set up the second interview.

Grievant testified that, at the time of the initial interview, she had forgotten about the incident in which Employee P smoked marijuana in the truck.  She testified she told Employee P to stop and put away the marijuana, and that she never saw him do it again.  She believed that was the end of it.

Grievant testified she took some marijuana from Employee P when he showed her some in her office in late 1995.  She has no idea why she took it, other than that she did a lot of unwise things during that  particularly stressful period.  In retrospect, she believes he showed her the marijuana to keep her from reporting him in case anything went wrong.  She took the marijuana home and smoked it in a bong.  She testified this was her first use of marijuana since before January 1995.  Up to January 1995, she had used marijuana regularly away from work; she testified she never smoked it before work or at lunch.  She testified she had also taken some drugs from Employee P after work in 1994.

Grievant testified she urged Employee P to go to the Employee Assistance Program ("EAP") around the time she became a lead worker, in August 1995.  Later, when he was having several problems, she again urged him to go to the EAP.

Grievant testified she did not think anything of the bleach issue at the time Employee P told her about it.  She testified she had heard many theories about how to beat a drug test, and did not think any of them worked.  However, shortly thereafter, Employee P was subjected to a random drug test.  Because she knew he used drugs, but was not removed from the job, she assumed he had succeeded in beating the drug test.

Grievant testified a random drug test was scheduled for a Monday at the start of the shift.  She learned of it the preceding Friday in discussing her schedule with her supervisor.  That Monday, after Employee P had left to get the inmate crew, she mentioned to one employee that he needed to drink water.^[2]  A second employee may have been present when she made this comment.  She was unaware that employees with a "shy bladder" were given extra time to produce a specimen.  She testified she did not think of her comment as a warning.  Although she has heard that drinking extra fluids is a way to beat a drug test, she does not believe that works.

Grievant testified that, shortly after this random drug test, Employee P chided her for not warning him, saying he "had to scramble to get my bleach."  She realized at that point that he expected favors from her.

Grievant testified she realized after her first interview with Detective Crawford that things were getting out of hand with Employee P.  She recalled the March 1995 incident and his claim that he could beat a random drug test, and knew he had passed a random drug test despite her understanding that he was continuing to smoke marijuana.  In addition, training meetings for leadworkers in October and November had alerted her to her responsibility to correct such behavior.  The investigation also alerted her to claims that Employee P was involved in selling drugs.  She decided more was going on than she thought.  She therefore decided she should come forward with her information during the investigation.

GRIEVANT'S REHABILITATION PROSPECTS

In an April 4, 1996, memo, Grievant notified Masengale she had decided to seek drug rehabilitation counseling through her insurance and the EAP.  On April 17, the Clinical Supervisor for the program Grievant consulted reported that, based on Grievant's self report, he could not make a substance abuse diagnosis; for that reason, treatment was not offered or recommended.  A drug screen came back negative.

Grievant's supervisor at the time of the OSP investigation was asked what should be done with Grievant.  He recommended discipline, but not termination; he did not specify the level of discipline he con­sidered appropriate.  He had left the Department by the time the Department started the pre-dismissal process.

POSITION OF EMPLOYER

The Arbitrator may not substitute her judgment for that of the Employer as long as the discipline was within the range of reason, unless the discipline was significantly disparate.  The discipline here was within the range of reason and consistent with discipline of other employees.  Employees who possessed illicit drugs at work have been terminated.  Employees who tested positive for illicit drugs have been removed from duty and put in the pre-dismissal process.  Individual circumstances may warrant returning them to work instead of com­pleting the dismissal.

Grievant had notice of the prohibition on drug use and the consequences of violating that policy.  She told the police she knew she could be discharged; that allegedly was why she stopped using mari­juana. That showed improvement as of 1995; however, these charges involve serious misbehavior dating back into 1994.

Grievant's response to Employee P's use of marijuana in March 1995 was inadequate.  She did not direct him to cease smoking immediately or get out of the truck.  She thus tolerated the behavior.  Although she was not a lead at the time, she knew that, even as a co-worker, she should not permit that conduct.  The genuineness of her alleged admonishment to him at the time is in dispute.  Had she "drawn the line," as she claims, it is unlikely he would have brought out drugs in her presence, or that she would have asked for them.

Grievant knowingly violated the drug policy when she accepted marijuana from a known drug user in October 1995.  As a leadworker, she had more responsibility.  Moreover, she admittedly smoked the marijuana in a "bong," which indicates she continues to maintain drug paraphernalia in her home.  Other factors also give reason to question her earnestness in correcting her drug use problem.  She knew in January 1996 that the Department was concerned about drug use among employees with access to inmates; she had that access.

Grievant admitted she thought bleach could be used to pass a drug test, even before Employee P passed the test.  The Arbitrator should discredit her claim that she believed he would be caught in a test.  She knew he was using bleach, and knew he used drugs but had not been caught in a test.

The only logical reason for Grievant to make the comment she did to her crew was to alert them of a forthcoming drug test.  Although employees were already at work, Grievant knew bleach could be used to pass a test.  This comment alerted employees to begin making preparations to pass the test.

Grievant's information did assist the Department in ridding itself of a known drug user.  However, the Department did not pledge amnesty in return for this information, and Employee P's dismissal was not de­pendent on the information Grievant provided.  The Department would have been unwise to discharge Grievant at the same time as Employee P if, indeed, it needed her to fire him.  However, Employee P did not seek arbitration, and thus acknowledged he could not win reinstatement even without Grievant's information.

The Department was not required to provide amnesty to Grievant simply for coming forward.  It was en­titled to consider the impact on the workplace regardless of how it learned of her conduct.  Some of the best po­lice work is based on confessions.  Absent a prior deal, confessions do not avoid the criminal conse­quences.  Here, there was no deal.  Except for the final charge, Grievant had already told the police all the information she later gave to the Department.  She had no reasonable expectation the information would not be acted upon.  When Grievant spoke to the police, she had no way of knowing the source of all the information the police had.  Rather than unequivocal honesty, her disclosures may have been based on the belief that the information would become known anyway.

Grievant admittedly smoked marijuana in November 1995.  She conveyed the wrong message to employees under her lead by knowingly tolerating drug use.  It is to Grievant's credit if she stopped using drugs except for one slip-up in late 1995.  However, that does not erase the earlier misconduct.  Even before random drug testing was implemented, drug use was prohibited; Grievant admits she used drugs in 1994

This case is more serious than a failed drug test.  Grievant admitted drug use in 1994 and 1995.  That is the equivalent of two failed drug tests.  The Department would have no hes­i­tation to discharge an employee who failed two drug tests.  No disparate treatment was shown.  Although Grievant gave information to the police in January 1996, it was not until April 1996 that she sought counseling and rehabilitation from the EAP.  An employee intent on reform would have sought help in January.  Grievant was not prejudiced by the delay in discharging her.

POSITION OF THE UNION

Grievant should be returned to work without penalty.  Her discharge sends the wrong message to employees who are considering coming forward with information regarding misconduct.  The information Grievant voluntarily provided permitted the Department to rid itself of Employee P, an undesirable employee.  It is excessive to discharge a 12-year employee with no prior discipline, despite the help her cooperation gave in eliminating prison contraband.  If this stands, no other employees will volunteer information on drug use.

Under the Department's side agreement with the Union, employees who test positive have a last chance to correct their problem.  When the Department gives this last chance, it does not know whether the employee used drugs before or during work.  Except for one occasion, Grievant had not used drugs for over a year.  In another case under this side agreement, an arbitrator has found the Department managers have no expertise to substitute their judgment for that of a SAP regarding the employee's potential for rehabilitation.

Grievant did not warn her crew of the random test.  She knew of the test well in advance, but did not mention it until the crew was already at work, then informed an employee with a bladder problem that he should drink water.  The fact that one other employee was nearby is unimportant.

If Grievant's conduct was severe enough to warrant discharge, the Department should have acted in January or February 1996.  In nearly five months of work thereafter, she performed her work with no problems or discipline.  Her supervisor believed she could continue to work and that discharge would be too harsh.

         OPINION

The Agreement recognizes that progressive discipline is to be used “when appropriate.”  As this qualifier implies, summary discharge is appropriate for some misconduct.  In general, summary discharge is warranted only for gross misconduct--that is, conduct that is so obviously unacceptable that employees know, or should know, that they cannot engage in it and still remain in the workplace.

The initial determination of discipline is a managerial function.  The Arbitrator has no authority to second-guess the level of discipline merely because she would have imposed a different level of discipline.  So long as the discipline imposed is within the range of discipline proportionate to the proven offense, the discipline must stand.  In evaluating the appropriateness of discipline or discharge, the Arbitrator must consider the facts of the case at hand, as well as the discipline imposed in any similar cases.

The Department is bound by the reasons upon which it relied in making the discharge decision.    Arguments of counsel are not evidence, nor can they alter or aug­ment the bases for disci­pline.  It may well be that additional facts, not set forth in the dismissal letter, could have supported the discharge.  How­ever, it would be inconsistent with just cause to rely upon them now.  For this reason, Grievant’s drug use before 1995 will not be considered as a basis for this discharge.

The determination of the appropriate penalty takes on particular significance where, as here, the employee is very senior and has a history free of prior discipline.  These factors bespeak an investment, by both the employer and the employee, in the employment relationship.  Here, a further mitigating circumstance is that Grievant came forward with information about both her own misconduct and that of a fellow employee.

Given these factors in her favor, the record nonetheless reveals very serious misconduct by Grievant.   Before becoming a leadworker, she left unre­ported drug use by a co-worker in a state vehicle­.  This incident took on more significance after her promotion.  Later conversations with Employee P revealed his con­tin­ued drug use, attempts to defeat drug tests, and expectations that she would assist him in the latter endeavor by warning him of random drug tests.   Grievant nonetheless did not­­ alert management to these concerns.  Whether inadvertently or not, she also gave other subordinates advance notice of a random drug test, thus giving them an opportunity to follow in Employee B’s footsteps in adulterating their own samples.

Of even more concern, Grievant accepted drugs from Employee P ­­­in the worst possible circumstances.  Engaging in drug trans­ac­tions on work premises and work time is such a breach of the basic require­ment of integrity in the employment relationship that any employee knows, or should know, that it is wrong.  The seriousness of the offense was aggravated by Grievant’s status as a leadworker for Employee P.  Accepting drugs from a subordinate in these circumstances unavoidably compromised her ability to dissuade him from further involve­ment in drugs at work.  No evidence exists that employees have received lesser discipline for similar misconduct.  On the contrary, employees found in possession of drugs on the premises have been discharged.  The rehabilitation offered to employees who tested positive for illicit drugs is inapposite.