BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF RACINE
LOCAL 67, AFSCME, AFL-CIO
On October 21, 1997, Local 67, AFSCME, AFL-CIO filed a request with the
Wisconsin Employment Relations Commission to have a member of its staff appointed as
arbitrator to hear and decide a grievance pending between the Union and the City of Racine.
Following jurisdictional concurrence, the Commission appointed William C. Houlihan, a
member of its staff, to hear and decide the matter. Hearing was conducted on January 13,
1998, in Racine, Wisconsin. A transcript of the proceedings was prepared and distributed on
January 23, 1998. Post-hearing briefs and reply briefs were filed, the last of which was
received and exchanged on March 30, 1998.
This arbitration addresses the termination of employe R.F. for failing a drug test.
BACKGROUND AND FACTS
R.F., the grievant, was employed by the City of Racine since May of 1974. He
worked for a period of eight to nine years with the Solid Waste Department, and thereafter
transferred to the Parks Department, where he worked until he was terminated. Mr. F.'s
performance evaluations indicate that he was a good worker. Testimony of co-
workers support that conclusion. Work performance played no role in the termination
Rather, he was terminated because he tested positive for drug use (cocaine). On February
1997, the grievant was randomly tested for drugs, pursuant to the Employer's drug policy,
which is set forth below. On March 7, he was advised that he tested positive and was issued
a five-day suspension. That suspension was served from March 17-21, 1997.
On Wednesday, August 6, 1997, the grievant was tested again. He tested positive
was sent a letter, dated August 12, 1997, which provided as follows:
This letter is intended to officially notify you that it is the
of Racine's intention
to terminate your employment as a result of a second positive on your random drug test.
You will have until Monday, August
18, 1997 to submit to this office, in writing, any
mitigating circumstances as to why the City should not carry out its intended action.
Upon review of such documentation (if
any) the City will inform you of its final
Any questions concerning this letter may
be directed to the undersigned.
James C. Kozina
The grievant did send the City a letter, essentially outlining
sense of desperation
over the existence of his drug dependency, and the fact that his job is all that he has left. In
it, he expresses a need to return to work to get help with his disease. That same day,
20, the City sent a letter terminating the grievant. A grievance was filed on September 8,
1997, protesting the discharge. The grievance was denied on September 19, 1997. The
matter has been appealed to the arbitration step of the grievance procedure.
The grievant has suffered with a cocaine/alcohol problem for the entire time he has
been employed by the City. In 1986, the grievant was convicted of criminal possession of
cocaine. He was sentenced to 30 days in jail, and probation thereafter. He served his
sentence. His supervisor became aware of the conviction in a newspaper story, and
his concern in a letter to Kozina, which contained the following paragraphs:
. . .He is an important member of a team that, because of the
nature of their work (tree
trimming and tree removal, working together with chain saws, 55-foot Hi-Ranger and Boom
truck), it is important that they all stay alert.
I feel uncomfortable assigning him in this
position, uncertain of his future conduct.
Maybe I am overreacting, but I repeat, this is a team effort, not that the man is working
William Dyess, a Personnel/Affirmative Action officer employed by the City,
a meeting with the grievant on March 5, 1986. Dyess confirmed the substance of that
meeting in a letter to the grievant, dated March 6, which provided:
This letter is to confirm our meeting on March 5, 1986,
concerning and confirming
the court sentence of 30 days in jail with work release and the two (2) years probation
imposed on you.
As stated to you at the start of the
meeting, I called this meeting for the following
three (3) reasons: (1) First of all, to let you know that the City of Racine is knowledgeable
of the sentence imposed on you by the courts as it relates to the cocaine conviction for
possession. (2) Secondly, to explain to you what we expect of you and what you can expect
of the City. (3) Thirdly, to meet with you and the Employee Assistance Program (EAP)
Coordinator Manuel Lopez, Local 67 Union Representative, to offer help should you express
a need for such.
It is unfortunate that this happened to you.
However, it is the City's understanding
that this won't happen again, and there is no help needed from the EAP which is available to
Also, the City of Racine wishes to impress
upon you that any further problems in this
area or any other unacceptable areas will result in the termination of your employment.
We certainly hope you will take full
advantage of this opportunity to turn your
employment life with the City of Racine around.
Should you have any questions concerning
this letter, please direct them to me.
William J. Dyess
There is no indication as to whether or not the grievant participated in the EAP
program at this time.
On February 29, 1991, the grievant contacted Mr. Dyess seeking EAP assistance.
While the record is somewhat vague, it appears the assistance was for drug and/or alcohol
dependency. The grievant was referred to, and did enter a inpatient treatment center for a
On February 7, 1994, the grievant again contacted Mr. Dyess, expressing a desire
to use drugs. Dyess gave the grievant a number of potential options as to treatment facilities
and the grievant chose DePaul in Milwaukee. Dyess drove the grievant to the DePaul
but it was determined that he was not sick enough for admission. The men drove back and
a day or two later, Dyess had the grievant admitted on an outpatient basis with Crossroads
treatment. Crossroads treatment plan did not work. In May of 1994, the grievant checked
into Hazelton, Minnesota for a 28-day inpatient program. He returned to work June 3,
The City of Racine has a drug testing policy, particularly applicable to those
bargaining unit members who hold commercial drivers licenses, which includes the grievant.
The City is mandated to follow federal Department of Transportation regulations for drug
testing. Its drug and alcohol policy, whose meaningful portions are set forth below, was
adopted in February of 1995. The Employer implemented that policy following discussions
with the Union. An outside agency provides a list of names to be tested. The Employer has
no influence over the randomly-generated list. The program tests half of the bargaining unit
members annually. If an employe tests positive, he is subject to a five-day suspension. It
Personnel Director Kozina's uncontradicted testimony that the five-day suspension for a first
positive test was a product of negotiations with the Union.
Nothing in the record indicates that the Union has specifically concurred that
discharge is automatically appropriate following a second positive test. However, the
followed by this employer has essentially been to that effect. Kozina testified that every
employe testing positive for the first time (six to seven people) have received five-
day suspensions. He further testified that all testing positive for a second time have
forced to resign or terminated. It was his testimony that the City has never condoned a
positive drug test. Kozina recalled by name five bargaining unit employes terminated
following a second positive drug test. There was a dispute as to whether some of those
employes were seasonal and whether all terminations were entirely drug and/or
alcohol-related. There was no testimony relative to any person testing positive who kept his
The City automatically sends a letter inviting the affected employe to submit
mitigating circumstances. To date, no proffered circumstance or excuse has stayed
As of the date of the hearing, the grievant was enrolled in an even more intensive
rehabilitation program. He had enjoyed success since October of 1997. His counselor
testified that he has made more progress toward rehabilitation than at any other point in his
life. His counselor further testified that the grievant is a strong candidate for rehabilitation.
The grievant testified credibly that he never used drugs on the job.
It was the grievant's testimony that on Friday, August 1 the frustration he
on the job and with his personal life lead to his renewed use of cocaine. He testified that he
"gave up that day". He stayed home the following Monday and Tuesday because he knew
the cocaine would continue to be in his system. He was tested on Wednesday and tested
positive. It was the grievant's testimony, corroborated by co-workers, that the Employer had
upgraded jobs in the tree-trimming operation. The upgrade had effectively blocked internal
transfers due to the higher standards. Vacancies had been filled from without, which led to
tension among workers in the unit. It was the testimony of a colleague that the conflict and
stress felt on the unit created difficult working conditions. The grievant perceived a need to
post out of his job. He did post successfully for an alternative position, but the test occurred
prior to the time he could leave.
The parties stipulated the following issue:
Did the Employer have just cause to terminate the grievant? If
not, what is the
RELEVANT PROVISIONS OF THE COLLECTIVE
ARTICLE 2 MANAGEMENT AND UNION
. . .
E. Management Rights
The City possesses the sole right to operate
City government, and all management rights
repose in it, but such rights must be exercised consistently with the other provisions of this
contract and the past practices in the departments covered by the terms of this agreement,
unless such past practices are modified by this agreement, or by the City under rights
conferred upon it by this agreement, or the work rules established by the City of Racine.
These rights, which are normally exercised by the various department heads include, but are
not limited to, the following:
. . .
2. To hire, promote, transfer, assign and retain employes in
positions with the
City and to suspend, demote, discharge or take other disciplinary action against
employes for just cause.
. . .
CITY OF RACINE DRUG
AND ALCOHOL TESTING POLICY
I. STATEMENT OF POLICY
The City of Racine recognizes that the use
and/or abuse of alcohol or controlled
substances by drivers of commercial vehicles presents a serious threat to the safety and health
of the driver and the general public. It is the policy of the City of Racine that its employees
who perform safety-sensitive functions be free of alcohol and drugs. In order to further the
City's goal of obtaining an alcohol-free and drug-free transportation system, and to comply
with the Omnibus Transportation Employe Testing Act of 1991, the City of Racine has
implemented a drug and alcohol testing program which is designed to help reduce and avoid
accidents and injuries to our employees and
the general public, to discourage alcohol and
substance abuse, and to reduce absenteeism, accidents, health care costs, and other alcohol
and drug-related problems.
. . .
IV. PROHIBITED CONDUCT
City policy and federal regulations prohibit
employes from engaging in the following
I. Using, possessing, dispensing,
distributing, or receiving alcohol, intoxicants,
illegal drugs, or other controlled substances on City premises, or while engaged in
II. Reporting to work while under the
influence of alcohol, intoxicants, illegal
drugs, or other controlled substances in their system;
. . .
IV. Consuming any amount of alcohol, intoxicants, illegal
drugs, or other
controlled substances while on duty or within four (4) hours of reporting for duty.
Any employee who violates any of the rules set forth above
shall be subject to
discipline, up to and including termination.
. . .
VI. Prohibited use of controlled substances, the unauthorized
use of any controlled
substance is strictly prohibited in all situations.
VII. REQUIRED TESTS.
. . .
3. Random testing. This test is used in order to eliminate
risks associated with
illegal or unauthorized drug and alcohol use. Random alcohol and drug testing will
be conducted at any period in which an employee is ready to perform or immediately
available to perform, is actually performing, or has completed performing safety-sensitive
duties. The employee shall be randomly selected for testing from a pool of
employees subject to testing. The testing dates and times are unannounced and will
occur with unpredictable frequency throughout the year.
. . .
In the event an employee tests positive for either alcohol or
controlled substances, the
employee shall be subject to disciplinary action up to and including discharge.
POSITIONS OF THE PARTIES
It is the Employer's contention that the grievant's second positive test for cocaine,
while in a safety-sensitive position, is just cause for termination. The Employer contends
it is uncontradicted that the grievant's two drug tests in March and August of 1997 were
positive for the illegal drug cocaine. The grievant knew from his personal experience that it
was prohibited to have an illegal drug in his system while working. The grievant received a
copy of the City's drug and alcohol testing policy. William Dyess reiterated his warning to
the grievant via a letter sent to him shortly after their initial meeting. The warnings were
given at each subsequent meeting Dyess had with the grievant. The grievant was warned
again after the first positive drug test in March, 1997. The Employer imposed a five-day
suspension and warned the grievant that termination was the next level of discipline. The
grievant was aware that other employes had been terminated for continued use of drugs or
The Employer cannot and does not accept the excuse that the work environment can
be the cause and/or excuse for drug and/or alcohol abuse. The grievant acknowledged that
he could transfer elsewhere if an opening developed and he had the seniority, skill and ability
to perform the vacant position. In fact, the grievant was being transferred to an equipment
operator position when he was tested a second time.
In its reply brief, the City advances arbitral precedent in support of its decision to
terminate the grievant.
It is the position of the Union that the City failed to meet the just cause requirement
for discharge. The Union contends that the City's drug and alcohol testing policy does not
supersede the just cause provision of the collective bargaining agreement. The parties have
not agreed that a positive test will result in immediate dismissal. The Employer's policy
employee who tests positive for controlled substances shall be subject to discipline, up to and
including termination" does not provide for automatic termination as a result of a second
On the one hand, the City seemingly recognizes that automatic discharge is
inappropriate in that it affords employes an opportunity to submit in writing any mitigated
circumstances as to why it should not carry out its intended action, namely termination.
However, careful scrutiny of the August 12, 1997 letter to the grievant clearly shows that in
all practicality the decision to discharge had been made before the grievant was asked to
provide a defense. The Union argues the City's action of "guilty until proven innocent" is in
direct conflict with the just cause provision in the Agreement. At its best, "guilty until
proven innocent" ignores the obligation for a full and thorough investigation, and at its
it undermines the integrity of the relationship between the parties.
Federal regulations do not call for the grievant's termination. They provide only that
in the event that an employe tests positive for a controlled substance that he cannot perform
a safety-sensitive function.
The Union contends that the grievant is a long-term employe with a good work
record. The grievant has 23 years with the City. During that time, his work record was
without discipline, he repeatedly scored above average in his performance evaluations, and
did so notwithstanding his continuing battle with drug addiction. The Union contends that
the Employer has ignored the length and quality of service the grievant has provided the
Such disregard is unacceptable.
The Union contends that the grievant recognized the severity of his addiction and
willingly sought treatment. In 1991 and again in 1994 the grievant reached out to the City
for help in overcoming his drug abuse. The Union notes that the grievant felt under a great
deal of stress due to the work environment and the conflict it generated. He simply "gave
leading to his renewed use of cocaine. The Union contends that relapse is common in these
cases of chemical dependency. The Union notes that the grievant's various treatments and
recurring relapse is normal. The Union called an expert witness who is a professional
counselor in a residential treatment house. That witness testified that stress could provoke
a relapse. The Union notes that its expert indicated that the grievant had come farther in
terms of his rehabilitation than ever before. The grievant's openness, willingness, and
commitment to follow through with prescribed treatment lessens the probability that he will
It is the Union's view that the City has a continuing role in the grievant's recovery.
Finally, the Union argues that reinstatement is an appropriate remedy. The Union cites
arbitral authority for a number of the premises set forth above including the reinstatement
The City has a right to discharge for cause. It has enacted a comprehensive drug and
alcohol testing policy. That policy prohibits employes "reporting to work while under the
influence of alcohol, intoxicants, illegal drugs, or other controlled substances in their
systems"; it spells out the consequence for violation of such rule as ". . .discipline, up to
including termination." It further sets up the drug and alcohol testing system including
The drug and alcohol policy has been distributed among employes in the bargaining
unit. A portion of it has been negotiated with the Union.
In applying the policy, which is subject to the provisions of the collective bargaining
agreement, the City has consistently suspended employes who test positive for five days for
the first instance. Furthermore, the City has consistently discharged employes who tested
positive a second time. The Union previously contested the City's discharge of an employe
who tested positive twice (City of Racine and Local 67, AFSCME, AFL-CIO, WERC
Case No. 525, No. 55036, MA-9974, 3/25/98, Arbitrator Bielarczyk.) In that dispute, the
parties argued over whether or not the positive drug test was the first or second applicable
to the grievant. The arbitrator concluded that it was the second, and summarily sustained the
discharge under the parties' contract and the Employer's drug and alcohol policy.
This grievant has a lengthy history of substance abuse. It is certainly true that he has
made enormous efforts to turn his life around. It is equally true that the City has made
significant efforts on his behalf. It appears that Mr. Dyess has expended considerable time
and effort helping the grievant address his problem. The City has tolerated leaves of absence
for rehabilitation. Meaningfully, the City has put this grievant on notice repeatedly, that
repeated substance abuse would lead to his termination.
The Union argues for reinstatement. I believe the grievant is an honest man, a hard
worker, and sincerely wishes to overcome his drug problem. He was a compelling witness.
The Union argued his case well. However, for me to reinstate this grievant would treat him
differently than all others who have tested positive.
The Union argues for leniency. Absent an employer breach of the provisions of the
contract, leniency is not mine to bestow. The question posed to me is did the Employer
violate the contract. The parties did not ask me to decide, what is the most appropriate
discipline given these circumstances. Whatever discretion for leniency exists belongs to the
The Union argues that the policy, as administered, is automatic. Therefore, the
decision to terminate was made before asking for and considering any mitigating
circumstances. This policy appears to be applied consistently and, so far, without exception.
The consistent application of practice is always subject to this form of criticism. The
alternative is a case-by-case analysis, which itself is subject to criticism that it constitutes an
inconsistent and selective application of the rule. I believe the solicitation of mitigating
circumstance eliminates the possibility that a decision is made in error or fails to consider
which could not reasonably have been contemplated by the employer. It is a safety valve to
arbitrary, mindless application of the rule.
The employer's policy relative to drug and alcohol use is rational, reasonably related
to its operation and business needs. A good deal of the policy is mandated. A portion of the
policy has been bargained with the Union. The Union contends that the grievant is a good
worker, with a good work record. The grievant recognized and attempted to treat his
problem. The work place stress contributed to his relapse. I believe all of this to be true.
It is also true that the Employer's policy and practice does not tolerate drug use by good
workers or by those who are attempting to control their problem. Given the origins of the
policy, the seriousness of the behavior, and the unequivocal practice, I am not going to
intervene and second-guess the Employer on its decision in this matter.
The Union points out through expert testimony that relapse in substance abuse cases
is common. I believe that to be true; it is not a defense in this proceeding. I note that one of
the underlying policies of the Employer's drug and alcohol testing policy is to attempt to
reduce absenteeism. The record is clear that the grievant took two days off in order to
cleanse his system.
The parties have submitted conflicting authority relative to arbitral treatment of
individuals who have tested positive for drugs in the workplace. While I am aware of
authority to the contrary, the interpretive practice of the parties to this agreement I believe
is overwhelming, and supersedes consideration of countervailing arbitral authority.
The grievance is denied.
Dated at the City of Madison, Wisconsin this 19th day of June, 1998.
William C. Houlihan, Arbitrator