BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DANE COUNTY, WISCONSIN MUNICIPAL
LOCAL 60, AMERICAN FEDERATION OF STATE,
AND MUNICIPAL EMPLOYEES,
SCHOOL BOARD OF THE SUN PRAIRIE AREA SCHOOL
Mr. Laurence S. Rodenstein, Staff Representative, Wisconsin
Council 40, AFSCME,
8033 Excelsior Drive, Suite B, Madison, Wisconsin 53717-1903, for Dane County,
Municipal Employees, Local 60, American Federation of State, County and Municipal
Employees, AFL-CIO, referred to below as the Union.
Mr. Jon E. Anderson, Godfrey & Kahn, S.C., Attorneys at
Law, 131 West Wilson Street, P. O.
Box 1110, Madison, Wisconsin 53701-1110, for School Board of the Sun Prairie Area
District, referred to below as the Board, or as the Employer.
The Union and the Board are parties to a collective bargaining agreement which was
effect at all times relevant to this proceeding and which provides for the final and binding
arbitration of certain disputes. The parties jointly requested that the Wisconsin Employment
Relations Commission appoint an Arbitrator to resolve a dispute reflected in a grievance filed
behalf of Dale Weichmann, referred to below as the Grievant. The Commission appointed
Richard B. McLaughlin, a member of its staff. Hearing on the matter was held on
1997, in Sun Prairie, Wisconsin. The hearing was transcribed, and the parties filed briefs
reply briefs by June 19, 1997.
The parties stipulated the following issues for decision:
Did the Employer violate the contract when it discharged the
If so, what is the appropriate remedy?
RELEVANT CONTRACT PROVISIONS
Reprimand - Suspension - Discharge
14.01 Just Cause
Employees . . . shall not be suspended or discharged except
just cause. The parties
agree that just cause may be the violation of one or more reasonable rules of conduct one
or more times.
It shall be the practice for the supervisor to orally warn an
employee who has, for the first
time, violated a rule before any written notice or other reprimand is given; however, being
under the influence of alcohol, the consumption of alcohol or controlled substances while
on the job, or being convicted of a felony, shall subject an employee to discharge without
prior warning. . . .
Employees shall not be discharged until other means of
reprimand seem to be exhausted
or ineffective. . . .
The Grievant was hired by the Board on January 3, 1994, as a custodial worker at
Northside Elementary School on the night shift. During the summer months, the Grievant
on the day shift, which started at 7:00 a.m. The grievance, dated August 8, 1996,
Grievant's discharge, alleging that the Board improperly relied on "the findings of a drug test
which the union believes to be faulty."
The drug test questioned by the grievance was initiated by Ludwig Jazdzewski, the
Director of Buildings and Grounds. The test was administered on July 16, 1996, but the
circumstances which prompted Jazdzewski to request the test date from at least the prior
On July 15, 1996, Doug Bollig, the Lead Custodian at Northside, phoned Jazdzewski's office
determine if the Grievant had reported he would not come in to work that day. Jazdzewski
informed Bollig that he could find no evidence that the Grievant had called in. Jazdzewski
instructed Bollig thus:
We . . . instructed (Bollig) that . . . when he showed up to
admonish him for not reporting
to work on time, to remind him that this was a situation that had happened in the past, to
him that he would conduct an investigation into the situation, and I told him to act at his own
discretion as to whether or not (the Grievant) would, number one, finish the day, and
make up the lost time. (Transcript at 16).
While Bollig and Jazdzewski were discussing the matter, the Grievant reported for
Jazdzewski testified this was roughly forty-five minutes after the scheduled start of the
shift. Bollig did counsel the Grievant as Jazdzewski had requested, and received an
from the Grievant that he would not be late and would call in if he was unable to report for
on time. Bollig did permit the Grievant to work that day and to make up the lost time.
Bollig again contacted Jazdzewski's office on the morning of July 16, to determine if
Grievant had called in. Jazdzewski drove to Northside to discuss the situation with Bollig
Bollig's supervisor. At roughly 7:45 a.m., while they were discussing the matter, the
reported for work. Jazdzewski determined he would conduct an investigatory interview, and
Dick Silvers, then the Union's Vice-President, summoned to Northside to represent the
While waiting for Silvers, Jazdzewski engaged the Grievant in small-talk, and
his behavior. Jazdzewski described his observations thus:
Well, he looked like someone who had just gotten out of bed. He
was slightly disheveled.
He had a blank, vacant look to him. I didn't observe anything wrong with the way that he
walked, but his talking was slow and casual. He first appeared nervous when he got out of
car when he saw all the supervisors were there. But in his responses to our conversation, he
slow and casual as if there wasn't anything particularly out of line. (Transcript at 20)
When Silvers had arrived, Jazdzewski interrogated the Grievant, who informed
Jazdzewski he was
late because he had been up all night fixing his car. He then informed Jazdzewski he did
not call in because that would have only delayed him further. When Jazdzewski
pressed him for
details on the repairs he had made to the car, he responded that he had not actually
performed any work, but stayed up with a friend who actually did the repair work. When
Jazdzewski pressed for further detail on how long the work had taken, the Grievant
he got to bed sometime around midnight.
Although Jazdzewski could not smell alcohol, he became convinced the Grievant was
the influence of an intoxicant. He responded thus:
I asked him if he was indeed under the influence of alcohol, and
he assured me he was not,
that he had not touched alcohol since he'd come out of a treatment program. I asked him if
was under the influence of anything else and he said he was not. (Transcript at 22)
Jazdzewski then summoned his managers and Silvers to meet separately from the
Jazdzewski asked Silvers if Silvers concurred in his observations. Silvers had
"(r)ed eyes, glassy eyes, slow speech" from the Grievant, and had concluded that "he
probably was under the influence of . . . marijuana." (Transcript at 42). Silvers informed
he agreed with Jazdzewski's observations. Jazdzewski had decided to request that the
submit to a blood test. He decided to request the test because the Union had opposed the
discharge of another employe, asserting that without a blood test the Board could not reliably
determine if the employe was under the influence of intoxicants. Silvers responded that he
not, on the Union's behalf, object to Jazdzewski's request for a blood test.
Jazdzewski, his managers and Silvers again approached the Grievant. Jazdzewski
the Grievant if he was under the influence of alcohol or any other intoxicant. The Grievant
responded that he was not. Jazdzewski responded thus:
I asked him what would happen if he were to get a blood test, and
he indicated that he would
test clear. I asked him if he would accompany me to the Dean Clinic for the purpose of
a blood test. He indicated that he had no objection. At that point we got in my truck.
At the clinic, Jazdzewski phoned the Board's Director of Human Resources, Annette
inform her of his desire to have the Grievant tested. Baker made the necessary
the clinic, the Grievant decided to submit to a urine test rather than a blood test. He signed
forms indicating his consent to the process. After supplying the clinic with the samples,
Jazdzewski drove the Grievant home, and informed him he would be placed on paid leave
the results of the drug test were determined.
On July 18, 1996, General Medical Laboratories (GML) issued its interpretation of
Grievant's urine sample. Its report returned negative for the following substances: alcohol;
amphetamines; barbiturates; benzodiazepines; cocaine; methadone; methaqualone; opiates;
phencyclidine; and propoxyphene. The report stated the following for marijuana:
*** POSITIVE FOR MARIJUANA METABOLITE ***
POSITIVE BY EIA FOR CANNABINOIDS
AT A CUTOFF OF 50 NG/ML. POSITIVE
BY GC/MS FOR 11-NOR-DELTA-9-THC-9-CARBOXYLIC ACID AT A CUTOFF OF 15
NG/ML. 11-NOR-DELTA-9-THC-9-CARBOXYLIC ACID IS A METABOLITE OF
MARIJUANA. URINE DRUG DETECTION MAY NOT INDICATE INTOXICATION.
Baker received this report by fax, and phoned the Lab Technician who had issued the
clarify what the results meant. Baker understood from her conversation with the Technician
the Grievant's urine sample had first been screened to determine if the metabolite of
could be detected at levels sufficient to be considered a positive result. The cutoff for the
screen was "50 NG/ML," a level set by the federal Department of Transportation. This
screen then prompted a second screening for "11-Nor-Delta-9-THC-9-Carboxylic Acid," a
particular metabolite of marijuana. That screen was a Gas Chromatography/Mass
(GC/MS) screen. The cutoff for this metabolite was "15 NG/ML." The Lab Technician
Baker that the Grievant's sample returned a result of "333 NG/ML." This level, the Lab
Technician informed Baker, would not be the result of passive inhalation. Baker then
that a separate laboratory interpret the Grievant's urine sample. On July 31, 1996, that
reported its GC/MS test of the Grievant's sample yielded a result of 353 NG/ML.
Jazdzewski, upon learning of the results of the drug test, recommended that the
be discharged. His recommendation was accepted, and the Board confirmed this in a letter
Grievant dated August 1, 1996, which states:
The District has completed the investigation into the facts and
circumstances relating to the
July 16, 1996 incident.
During the course of this investigation, the District has
interviewed you and other school
district employees, and you voluntarily completed a drug test regarding the July 16, 1996
Based on the results of the investigation and your positive drug test, your employment . . . is
terminated effective August 1, 1996 for being under the influence of a controlled substance
on the job. . . .
This letter prompted the filing of the grievance.
Baker heard the grievance at Step 2. At that step, the Union submitted a drug test
interpreted by GML on a urine sample submitted by the Grievant on August 5, 1996. That
interpretation yielded a negative result for each substance tested, including marijuana at a
of "50 NG/ML." Baker discussed these results with a representative of GML, and concluded
should not alter the Board's discharge decision. In her opinion, the Board's need to comply
the Drug Free Workplace Act required it to define "under the influence" as "having any
amount of any illegal substances present in (an employe's) system combined with the obvious
signs and symptoms." (Transcript at 55).
Jazdzewski believed he was competent to assess the basis of the Grievant's behavior
July 16, 1996. He has, as a supervisor, observed employes under the influence of drugs at
He has been trained as an Emergency Medical Technician, and has attended a Board
training program on "Recognizing Substance Abuse and Alcohol Misuse AND Taking
Action." At that seminar, Jazdzewski received material indicating the following symptoms of
Physical Symptoms: reddened eyes (often
masked by eye drops); stained fingertips from
holding "joints," particularly for non-smokers; chronic fatigue; irritating cough, chronic sore
throat; accelerated heartbeat; slowed speech; impaired motor coordination; altered
Behavioral Symptoms: impaired memory;
time-space distortions; feeling or (sic) euphoria;
panic reactions; paranoia; "I don't care" attitude; false sense of power.
Silvers also believed he was competent to assess the basis for the Grievant's behavior
July 16. Silvers, however, based his competence on personal experience:
Well, I used to be an addict for about 22 years, clean for about
13. My drug of choice was
marijuana. I know when someone's high. (Transcript at 42).
Silvers began his employment with the Employer as a Grounds Keeper. He served in
for about ten years. Sometime in the summer of 1996, he became Lead Grounds Keeper for
Board. In January of 1997, he became a Facility Service Manager, which is a position not
included in the bargaining unit. He had served as the Union's Vice-President for roughly ten
years, leaving that post when he became a Facility Service Manager. He acknowledged that
had been disciplined several times while a member of the unit, had used marijuana on the job
was working under a "last chance agreement" until, roughly, March of 1996. He noted he
not object to the imposition of a drug test on the Grievant because the Grievant would not
acknowledge any problem, and he hoped that the imposition of the test would either confirm
Grievant's position or put him in a position where he would have to acknowledge a problem
The parties jointly submitted documentation from the Grievant's personnel file.
in that documentation is an evaluation dated August 16, 1995. That evaluation includes the
following narrative summary:
(Y)ou continue to demonstrate steady progress in your daily
custodial performance. Your
team mates, the school administration and staff, and those who provide support services to
Northside all offer positive feedback regarding your service to the school. Keep up this good
Keep in mind that you have had momentary lapses which were
brought to the attention of the
department's administration. You were in the habit of reporting for work in a condition of
extreme weariness and had been reported as to have been napping on the job. One day, you
so tired and disoriented as to be unable to properly perform your custodial duties.
You were warned that any continuance of such performance
problems would lead to corrective
action and could result in disciplinary actions. I am happy to report that there have been no
further reports of this type since that meeting.
. . .
Also included in that documentation was a memo dated August 11, 1994, headed
"August 8, 1994
Incident and Verbal Reprimand" which states:
This memo will confirm that on Monday, August 8, 1994 at 8:00
a.m. I talked to you about
your arriving late to work. You have been asked before to notify the concerned people
when absent, shift adjustments, or being late for work, etc. On August 8th you failed to
any contact indicating you would be absent or late for work. Therefore, this memo will
a verbal reprimand for failure to contact the Buildings and Grounds Department concerning
absence from work. I also mentioned to you that if you are having an outside problem that
hampering your work performance you should contact the EAP program . . .
The documentation includes a memo dated September 2, 1994, headed "August 11,
Incident." That memo states:
. . . On August 11, 1994 you came to work on time and were
advised to sweep the front
concrete sidewalk. You proceeded to secure a dust mop and went
outside to sweep the concrete sidewalk. It is most unusual for a
custodian to use a dust mop
to sweep a concrete sidewalk. Immediately, your supervisor, Mr. Doug Bollig, came
to talk to
you and reassigned you to another task.
At approximately 8:10 a.m. a group meeting was held in the
Northside Library Media Center
and was attended by Dick Silvers . . .
When I asked you about the incident . . . you shrugged your
shoulders and said you were out
late last night, however, you did get home in time for some sleep and just came to work. I
advised you that you didn't seem yourself today and you indicated that you had allergies and
is the reason your eyes looked the way they did. I asked you if you were under the influence
alcohol or any other drugs and you responded with, "No."
My investigation revealed that something unusual happened when
you came to work on the
morning of August 11th; and no explanation was offered for it. At the conclusion of our
I advised you that if you reported to work under the influence of alcohol or any other drugs
district could issue discipline up to and including discharge. I asked you if you understood
and you responded, "Yes."
The district expects you to come to work and perform your duties
each and every day. The
behaviors that you demonstrated on August 11th were not explained and most unusual.
demonstrations of behavior like this will result in further investigations.
In a memo dated February 21, 1996, Jazdzewski issued the Grievant a verbal warning
to follow call-in procedures regarding an absence on January 16, 1996. In a memo
March 18, 1996, Jazdzewski issued the Grievant the following written warning:
The purpose of this memo is to confirm the outcome of the
investigatory interview of March
11, 1996 regarding your failure to properly notify your immediate supervisor of your late
on this same date.
I went to Northside to see whether you had yet arrived; you
indicated that you had been up
late the previous evening with a friend who was distraught, had been drinking, and was
comments that caused you to fear suicide. I advised you that I would have to hold an
investigatory interview into this matter. You acknowledged the right, then waived it, saying
you realize that you failed to make the proper report as a result of oversleeping, and that you
willing to receive any discipline forthcoming.
We discussed the incident in some depth, and, as I could find no
justification for you to have
failed in your obligation to report to work on time, or to properly report your absence, I felt
discipline was justified. In that you have been disciplined for this same offense on past
progressive discipline requires that this be documented as a written discipline.
I also referred you to the employee assistance program . . .
The narrative summary of the Grievant's May 17, 1996 evaluation states:
(Y)ou continue to demonstrate attendance problems. You have
received counseling . . . yet
you managed to qualify for discipline regarding the attendance and call-in procedure.
Keep in mind that your momentary lapses from quality
performance cannot continue. You
were warned that any continuance of such performance problems would lead to corrective or
Reports and observations indicate that you do quality cleaning
when you are not plagued by
outside problems. Please remain aware of, and refer to the Employee Assistance Program
you begin to feel the need. Early intervention could help to avoid such problems having a
negative effect on your job performance. . . .
Further facts will be set forth in the DISCUSSION section below.
THE PARTIES' POSITIONS
The Employer's Brief
After a review of the evidentiary background, the Employer argues that it "had
cause to direct that the Grievant take a drug test." Jazdzewski has training in the recognition
drug-influenced behavior. Silvers' life experience has supplied him with similar insight into
recognition and treatment of drug abuse. Their experience afforded them the ability to
evaluate the Grievant's appearance and conduct on July 16. Their mutual recognition of the
for a drug test was understandable and appropriate.
Beyond this, the Board notes that the Grievant "readily consented" to a drug test
he asserted, "would show him to be free from drugs." The test, however, confirmed
and Silver's conclusion that he had reported to work under the influence. The urine sample
confirmed the presence of marijuana "122 times the cutoff level."
The application of traditional just cause standards warrants a conclusion the Board
cause to discharge the Grievant. The Board employs the seven Daugherty standards to
this contention, citing Grief Brothers, Cooperage and United Mine Workers, 42 LA 555
(Daugherty, 1964). The first standard has been met since the Grievant had been repeatedly
warned regarding his failure to report for work on time and had been told in September of
that his reporting for work under the influence of drugs could result in discharge.
The second Daugherty standard has been met since the requirement of promptness
sobriety are reasonably related to the efficient and safe operation of a school district.
the Employer's need to comply with the Drug Free Workplace Act underscores the
of its work rules. Since the Employer "conducted an investigation prior to disciplining the
Grievant," the third Daugherty standard has been met. That this investigation was fair,
and produced undeniable evidence of the Grievant's guilt meets the fourth and fifth
standards. That there is no evidence that the Employer has ever acted differently toward any
employe than it did toward the Grievant establishes proof that the sixth Daugherty standard
been met. Since the Grievant was "given numerous chances" and was "given . . . access to
Employee Assistance Program" it follows, according to the Board, that the final Daugherty
standard has been met. However harsh the discharge sanction may be, "the Grievant needs
held accountable for his own actions."
The Employer then contends that its case stands unrebutted. The Union has failed to
establish the existence of any mitigating factors, and the Grievant's refusal to testify should
"weigh against him." It necessarily follows that the grievance should be denied.
The Union's Brief
After a review of the evidentiary background, the Union argues that Silvers' and
Jazdzewski's observations of symptoms of the Grievant's usage of marijuana on July 16 have
basis in "reliable medical authority." The symptoms related by Silvers and Jazdzewski
"correspond with someone who has woken up quickly and recently or someone with an
problem." The Employer had no demonstrated basis beyond his tardiness to order the
to submit to a drug test. This, the Union concludes, "constitutes insufficient grounds for
an employee to provide the District with a sample of his bodily fluids."
The sole reliable fact surrounding the events of July 16 is that the Grievant never
and was under no obligation to submit to a drug test. Silvers' indefensible conduct,
the Grievant with "little choice but to comply with the invasive and extreme request."
The Union contends that the principal weakness in the Employer's case is its
of Section 14.02. That provision cannot persuasively be read to permit summary discharge
on being "under the influence of a controlled substance." Even if it could, the Employer has
failed to prove the Grievant was "under the influence." The presence of the drug
in the Grievant's system falls far short of demonstrating intoxication. That a
"revealed a negative finding for all controlled substances" casts further doubt on the
case since "heavy drug users typically retain metabolites up to a month."
A more persuasive reading of Section 14.02 reveals that it provides for "three
bases for immediate discharge." Since the "under the influence" basis is restricted to
since the Grievant "does not need to carry a CDL, there exists no nexus linking off-duty
of marijuana smoking and regulated on duty conduct." The sole basis the Employer can
to regulate off-duty conduct under Section 14.02 is conviction of a felony. Because the
had no contractual basis to regulate the Grievant's off-duty conduct, it had no basis to require
to submit to a drug test.
Arbitral precedent will not support an unlimited disciplinary interest of employers in
employe's off-duty conduct. While the Union acknowledges some cases seem to treat drug
distribution as a type of conduct so severe it can support an asserted disciplinary interest in
off-duty conduct, it asserts there can be no contention that this type of conduct is posed here.
review of the Employer's case shows an attempt to "enlarge the scope of the contract"
its disciplinary interest beyond anything ever attempted in bargaining.
The Union concludes that the Grievant "is the victim of the Board's zealous
of an anti-drug policy." That his urine "contained metabolites of marijuana" cannot obscure
the Board has no legitimate interest in his off-duty conduct, or that the "invasion of (the
Grievant's) privacy rights in this matter is chilling." The evidence reveals only that "(f)or
late, he was made to urinate for the Board's inspection." The Union concludes by asking
Grievant be reinstated and that he be made whole "in all respects."
The Employer's Reply Brief
The Employer stresses that Jazdzewski's and Silvers' first-hand observations establish
reasonable cause to test the Union refuses to acknowledge. Beyond this, the Grievant
twice to the urine test.
The study cited by the Union to undercut Jazdzewski's and Silvers' conclusion is
post-hearing hearsay which "should not be relied on." That the Grievant did not work on
establishes no fact of consequence to the grievance since he "reported to work, intended to
and intended to work with drugs in his system." The degree of the Grievant's intoxication
most, an academic issue. The Board contends that the significant fact is that he was under
influence of marijuana and that the Board has defined "under the influence as having any
detectable amount of illegal substance present in (an employe's) system combined with the
signs and symptoms."
The Employer then contends that the Union has misconstrued the basis for the
The Board asserts no interest in the Grievant's off-duty conduct. Rather, the Board asserts a
reasonable interest in the Grievant's "fitness for work" when he reports for work. Nor
discharge be viewed as a "summary" act. Rather, the Grievant "received several warnings in
past for his failure to report to work on time" and "had been counseled with respect to
'unusual' behavior and was specifically told that the could be discharged for reporting to
under the influence."
The sanction of discharge is "properly a function of management" and the Employer
that arbitral precedent cautions against improper arbitral intrusion into the decisions of
management. Since the evidence does not establish unfair, arbitrary or capricious action on
part, the Board concludes the sanction of discharge should stand.
The Union's Reply Brief
The Union urges that the Employer's brief "failed to establish any legal basis for the
District's assertion that it was empowered to regulate (the Grievant's) off-duty conduct."
this, the Employer failed to establish that the Grievant was under the influence of alcohol and
subject to immediate dismissal. It necessarily follows that the grievance must be sustained
that the Grievant should be reinstated and made whole.
The stipulated issue questions whether the Grievant's termination meets the just cause
standard of Section 14.01. The Board points to Arbitrator Daugherty's seven standards as
definition of "just cause." The parties have not agreed to those standards. In my opinion,
standards are given meaning by the parties' agreement to use them.
Because the parties have not stipulated the standards defining just cause, the analysis
address two elements. First, the Board must establish the existence of conduct by the
in which it has a disciplinary interest. Second, the Board must establish that the discipline
imposed reasonably reflects that interest. This does not state a definitive analysis to be
on contracting parties. It does state a skeletal outline of the elements to be addressed and
on the parties' arguments to flesh out that outline.
The parties' arguments relevant to the first element focus on the Board's asserted
in the presence of a metabolite of marijuana in the Grievant's urine. That the Board has a
disciplinary interest in the Grievant's reporting for work on time, or following call-in
if he cannot, is not in dispute. He reported for work, without having called in, forty-five
late on July 16, 1996, after committing the same type of offense the day before. Standing
this establishes conduct in which the Board has a disciplinary interest.
The operation of the first element can, however, be considered in doubt regarding the
Board's asserted disciplinary interest in the Grievant's reporting for work drug free. Baker
rested the Board's interest on its need to comply with the Drug Free Workplace Act.
the Board's interest to extend beyond intoxication to the presence of illegal drugs in an
system combined with behavioral manifestations of drug use.
There is no persuasive evidentiary basis to question the Board's asserted disciplinary
interest. That the Board must comply with the act to receive federal funding is not in
Nor is it disputed that the Board must reflect its view of community standards in enforcing a
free workplace. While the limits of this interest pose troublesome issues, the evidence
basis to question the Board's assertion that its disciplinary interest extends beyond
the detectable presence of illegal drugs combined with behavioral manifestations of drug use.
The more closely disputed point is whether the Board's general disciplinary interest
support its conduct toward the Grievant. More specifically, the issue posed is whether the
determination that the Grievant reported for work under the influence has been established.
determination rests on the Grievant's July 16 drug test. On this point, the Board's assertion
compliance with the Drug Free Workplace Act coalesces with the Union's assertion of
rights. While approaching the issue from different points, both parties' arguments demand
the Board establish reasonable cause to suspect drug abuse precede the request for a test.
The Board has demonstrated that Jazdzewski had reasonable cause to suspect abuse
to requesting a drug test. Jazdzewski and Silvers were, for different reasons, personally
experienced in the assessment of behaviors indicative of drug use. The Union forcefully and
accurately points out that the Grievant's red, watery eyes, and disheveled appearance are as
consistent with getting out of bed as with abuse of drugs. That the symptoms can point to
than one cause cannot, however, obscure that abuse is one of the potential causes.
Jazdzewski had more than this to ground his concern. The inconsistency in the Grievant's
for his tardiness could reasonably be perceived as an effort to hide the cause for his
Beyond this, the Grievant had a track record regarding absence which cannot be ignored.
substance abuse had been reasonably suspected in the past and was reasonably feared to be
of his conduct on July 16 cannot be ignored. That on July 16 he committed the same offense
had been warned about on July 15 could reasonably be perceived to indicate an underlying
problem more intractable than simple fatigue. In sum, Jazdzewski had reasonable cause to
the Grievant might be under the influence of an illegal substance on July 16.
The evidence does not manifest coercion regarding the drug test. Jazdzewski
a blood test, but did so in the presence of a Union steward, and did nothing beyond
the test be taken. The Grievant voluntarily agreed to a urine test, and contended he would
clean. His assent was twice confirmed in writing. There is no basis to conclude the Board
coerced him into submitting to the test.
The Union contends that the Board improperly seeks to extend its legitimate
interest in on-duty conduct into the Grievant's personal life. The implications of this
are forcefully argued and troublesome. However, the broader policy concerns
advanced by the
Union are not supported by the facts of the grievance. The conduct underlying Jazdzewski's
request for a test and the test itself are traceable to the Grievant, not to the Board. The
unexcused absences on July 15 and 16 prompted the meeting on July 16 which kept the
from performing work on July 16. There is no dispute the Board acted within its rights by
investigating the basis for his absences and for his failure to call in. The fact remains that he
reported for work on July 16. As he approached his supervisors on that date, he was acting
employe on the work site, not as a private citizen. Each facet of the process from that point
volitional on the Grievant's part. There is no persuasive evidence the Board took any
interest in his off-work conduct. Rather, the Board acted to determine why he failed to call
whether he had reported for work fit to work. The events which followed the Board's
of these legitimate, on-duty concerns were within the Grievant's control. The policy
argued by the Union are not posed on these facts.
Nor can these implications be posed by denigrating Silvers' response. As the
personnel file manifests, he had received prior warnings regarding reporting to work late;
regarding failing to call in; and regarding reporting for work under the influence. Silvers
involved in the warning concerning the Grievant's conduct on August 11, 1994. That Silvers
would view the test requested on July 16, 1996, as a means to either clear the Grievant or to
confront him with a problem requiring treatment is a defensible opinion. Whether it was the
course of advocacy for the Grievant is debatable. This cannot obscure that the Grievant
took the test.
The results of the test should not be exaggerated, but cannot be dismissed as
The evidence will not establish that the Grievant was intoxicated on July 16, 1996. There is,
however, no persuasive evidence to undercut Baker's and Jazdzewski's conclusion that the
confirmed that the Grievant had not passively ingested marijuana and that his behavior
In sum, the Board has established that the Grievant failed to report for work on time
July 16, 1996; failed to call in to report or to excuse his tardiness; and reported for work
the influence, within the Board's view of its obligations under the Drug Free Workplace Act,
an illegal drug. This is conduct in which the Board has a disciplinary interest.
The issue now posed is whether discharge reasonably reflects the Board's disciplinary
interest. As preface to examining this point, it should be noted that the August 1, 1996 letter
discharge focuses on the Grievant's "being under the influence of a controlled substance
the job." This conduct cannot, however, be examined independently of his tardiness and
to call in on July 15 and 16, since that behavior played a role in Jazdzewski's request for a
The parties' arguments on this element of the cause analysis focus on whether any
provisions of Article XIV should be interpreted to prevent the discharge. Beyond the
for just cause, those provisions must be considered less than clear and unambiguous.
For example, Section 14.01 defines cause to be "the violation of one or more
reasonable rules of
conduct one or more times." This implies that a significantly serious offense, standing
warrant discharge. The first sentence of Section 14.02 would appear to underscore that
interpretation by specifying types of conduct warranting a summary discharge. How the
conduct of Section 14.02 is reconciled to the general reference of Section 14.01 is not,
immediately apparent. Beyond this, Section 14.02 read with Sections 14.03 and 14.04 can
to mandate that a discharge be preceded by an oral warning, a written warning and a
within a six-month period. This interpretation is itself strained by the more open-ended
in Section 14.04 that discharge is warranted whenever "other means of reprimand seem to be
exhausted or ineffective."
The precise relationship of these provisions cannot be meaningfully addressed in the
abstract, but must be interpreted on the facts of each grievance. On the facts of this
Sections 14.01 and 14.04 assume primary significance, with Section 14.02 playing a
role. Read together, these provisions demand an evaluation of a discharge decision based on
severity of the conduct alleged and on the amenability of that conduct to modification through
progressive discipline. In this case the failure of the Grievant to test clean is arguably
enough to support the discharge standing alone. The presence of repeated tardiness
the level of misconduct, but would not seem sufficient to warrant discharge outside of the
noted in Section 14.03.
The reasonableness of the Board's discharge decision can be debated, but the record
not support considering it unreasonable. As noted above, the Board's need to comply with
Drug Free Workplace Act is undisputed. The Board's interpretation of unfitness for duty
on behavioral symptoms warranting a drug test combined with a positive reading from a test
cannot be characterized as unreasonable. Discharge based on the Grievant's being under the
influence of marijuana on July 16 does constitute a reasonable reflection of the Board's
disciplinary interest in his conduct. That this conduct is aggravated by his tardiness and
to call in on that date cannot be ignored. Under Section 14.01, the Grievant had violated
or more reasonable rules of conduct" at least one time.
Nor will Section 14.04 warrant a different conclusion. The Grievant had received
warning or discipline regarding tardiness (August 11, 1994 memo; May, 1996 evaluation and
15, 1996 incident), failing to call-in (August 11, 1994 memo; February 21, 1996 memo and
March 18, 1996 memo) and reporting to work under the influence (September 2, 1994
The repetition of the warnings would not seem to have been effective. The Grievant had not
brought his behavior under control and had declined at least three offers of assistance through
Employee Assistance Plan. The positive result from the drug test he represented would
clean indicates his inability to acknowledge a problem. Against this background, a
"other means of reprimand seem . . . ineffective" cannot be dismissed as unreasonable.
In sum, the discharge reasonably reflects the Board's proven disciplinary interest in
Grievant's conduct. Both elements of the just cause analysis have been met, and the
must be denied.
Before closing, it is necessary to tie this conclusion more closely to the parties'
The Union's reading of Section 14.02 cannot be faulted. That provision does not, strictly
apply to being under the influence of marijuana unless it was consumed "on the job." The
provision is not, however, dispositive here. By its terms, it applies to the need to "orally
an employee who has, for the first time, violated a rule before any written notice or other
reprimand is given. . . ." The Grievant had received prior warnings concerning the conduct
underlying his discharge. Nor is it persuasive to read the provision as strictly as the Union
It governs, by its terms, "Reprimand." The list of offenses warranting summary discharge in
section are more persuasively viewed as a reference to the severity of conduct which
summary discharge than as an exhaustive list. It would be a strained reading of the section
conclude, for example, that an employe who used heroin off site on his lunch break would be
susceptible to discharge than an employe who used it "while on the job" or an employe who
reported for work "under the influence of alcohol."
The Union points out that the Grievant tested clean on August 5, 1996. This test
however, obscure that he reported for work other than clean on July 16. He was not
for habitual use, but for reporting for work on July 16, 1996, under the influence. His
on that date, and the absence of mitigating factors such as solid work performance over time
undercut his position more than a single clean test can address.
The Employer did not violate the contract when it discharged the Grievant.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 23rd day of October, 1997.
Richard B. McLaughlin /s/
Richard B. McLaughlin, Arbitrator