BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS, CHAUFFEURS AND HELPERS
LOCAL UNION NO. 43, Racine, Wisconsin,
affiliated with the
INTERNATIONAL BROTHERHOOD OF
TRANSIT MANAGEMENT OF RACINE,
a Wisconsin Corporation
(Grievance of Bernard Little)
Mr. Jonathan M. Conti, Previant, Goldberg,
Uelmen, Gratz, Miller & Brueggeman, S.C., Attorneys
at Law, 1555 North Rivercenter Drive, Suite 202, P.O. Box 12993, Milwaukee, Wisconsin
appearing on behalf of Teamsters, Chauffeurs and Helpers Union, Local Union No. 43,
Wisconsin, affiliated with the International Brotherhood of Teamsters, which is referred to
as the Union.
Mr. Thomas A. Secrest,
Labor Relations Counsel, Ryder Public Transportation Services, Inc., 705
Central Avenue, Suite 500, Cincinnati, Ohio 45202, appearing on behalf of Transit
Racine, Inc., a Wisconsin Corporation, which is referred to below as the Employer, or as the
The Union and the Employer are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The parties jointly requested that the Wisconsin Employment Relations
Commission appoint an Arbitrator to resolve a grievance filed on behalf of Bernard Little,
referred to below as the Grievant. The Commission appointed Richard B. McLaughlin, a
member of its staff. Hearing on the matter was conducted on April 15, 1999, in
No transcript was prepared of the hearing. The parties filed briefs by May 19, 1999.
The parties stipulated the following issues for decision:
Did the Employer have just cause to discharge the Grievant?
If not, what is the appropriate remedy?
It is agreed between the parties hereto that any Employer posted
rules that have been
approved by the Union must be observed by the employees. . . .
The following rules and regulations as set forth and the penalties
to be charged for the
violations of these rules are placed into effect so that all employees may know what duties
required of them in the general conduct of the Employer's business. . . .
. . .
(c) Drinking or use of drugs at
anytime prior to reporting for
work where employees'
Penalties--See Appendix "A"
condition is such that it may
Alcohol & Substance Abuse Policy
affect the proper performance
. . .
The Employer possesses the sole right to operate the mass transit
system and all management
rights repose in it, but such rights must be exercised consistently with
the other provisions of this agreement and the past practices in the
departments covered by the
terms of this agreement, unless such practices are modified by this agreement or by the
under rights conferred upon it by this agreement or the work rules established by the
These rights which are normally exercised by the Employer include but are not limited to the
. . .
2. To . . . discharge and take other disciplinary
action against employees for just cause . . .
In addition to the management rights listed above, the powers of
authority which the Employer
has not officially abridged, delegated or modified by this agreement are retained by the
The Union recognizes the exclusive right of the Employer to establish reasonable work rules.
The Union and the employees agree that they will not attempt to
abridge these management
rights and the Employer agrees that he will not use these management rights to interfere with
established under this agreement. . . .
Transit Management of Racine, Inc.
Alcohol & Substance Abuse Policy
I. STATEMENT OF POLICY
Transit Management of Racine, Inc. 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
driver and the general public. It is the policy of Transit Management of Racine, Inc. that its
employees who perform safety sensitive functions should be free of alcohol and drugs. In
further Transit Management of Racine's goal of obtaining an alcohol-free and drug free
system, and to comply with the Omnibus Transportation Employee Testing Act of 1991,
Management of Racine, Inc. has implemented a drug and alcohol testing program which is
to help reduce and avoid traffic accidents and injuries to our employees and the general
discourage alcohol and substance abuse, and to reduce absenteeism, accidents, health care
other alcohol and drug-related problems.
. . .
VI. PROHIBITED USE OF CONTROLLED
The unauthorzied use of any controlled substance is strictly
prohibited in all situations.
VII. REQUIRED TESTS
. . .
1. Pre-employment . . .
2. Reasonable Suspicion
Testing . . .
Testing . . .
Testing . . .
Return-to-Duty/Follow-Up Testing . . .
Testing . . .
VIII. Test Procedures
. . .
. . .
2. Results Of A Positive Test
Any employee who test (sic) positive for controlled substances
shall be sujbject (sic) to discipline,
up to an (sic) including termination. As with an alcohol misuse violation, Transit
Racine, Inc. is required to act upon a positive drug test result in the following manner:
3. Disciplinary Action
a) Remove the employee from the safety-sensitive position. . . .
b) Refer the employee to An EAP for
assessment and subsequent compliance with recommended
rehabilitation after a determination of a drug problem has been made;
c) Employee must be evaluated by a substance abuse professional
or MRO and determined to
be fit to return to work prior to their release of the employee;
d) Employee must have a negative result on
a return-to-duty drug test. Follow-up testing to
monitor the employee's continued abstinence from drug use will be required for 36 months.
SECOND OFFENSE (within
a) Immediate termination.
Any safety-sensitive employee who test (sic) positive for the
presence of illegal drugs or alcohol
above the minimum thresholds set forth in the policy, shall be referred for evaluation by
Managment of Racine, Inc's EAP provider . . .
Assessment by a substance abuse professional or participation in
Transit Management of Racine
Inc's Employee Assistance Program does no (sic) shield an employee from disciplinary action
guarantee employment or reinstatement with Transit Management of Racine, Inc. . . .
MEMORANDUM OF UNDERSTANDING
It is hereby agreed by the undersigned parties . . . that the
Employer's Drug and Alcohol Policy
shall be enforced as a work rule to applicable members of the Union, as modified only as
1.) The Employer shall not discharge an employee for testing
"positive" the first time under the
new policy unless a dischargeable offense occurs which is directly related to a positive drug
test. . . . .
5.) Transit Management of Racine, Inc. recognizes the right of
the Union to grieve any and all
disciplinary actions taken subject to the just cause standard. . . .
The grievance form, filed on September 1, 1998, states the "COMPLAINT IN
I was unable to attend my Drug Rehabilitation Class on 8-19-98
because of a medical Problem,
and as a result I was unfairly terminated. To resolve this Grievance I am requesting that I be
reinstated immediately with all Back Wages and Benefits.
Steven K. Rogstad, the Employer's Operations Manager, issued a letter of termination,
26, 1998, to the Grievant. That letter states:
On October 6, 1997 you were admitted to the Outpatient
Program at Behavioral Health
Services with All Saints . . . as a result of testing positive at work for cocaine. A letter
was sent to
the company on October 27, stating that you were chemically free as a result of your last UA
could return to work. However, you failed to comply with continued participation in the
program, and were discharged from the program for noncompliance on December 4, 1997.
Saints, however, did not notify the company of your disqualification from the program.
On July 2, 1998 you tested positive again
for cocaine as part of a standard Department of
Transportation (D.O.T.) physical examination from All Saints Medical Group. The physical
examination was determined to be necessary because of job-related performance, and your
informing us of an incident in which you were found to be wandering incoherently in a
on the evening of June 23.
The company was subsequently notified by
yourself and St. Luke's Hospital that you were
transported to St. Luke's Hospital and admitted into the hospital's crisis center after being
by emergency room personnel. You were advised by a psychologist that evening to enroll
into the hospital's drug rehabilitation program. You were subsequently referred to the
Program in the Behavioral Health Services department at All Saints Healthcare System for
rehabilitation treatment, under the direction of James E. Mason, M.A., CADC III,
On July 7, 1998, at 10:00 a.m., a
telephone conference call took place between John Diers,
General Manager, Steven Rogstad, Operations Manager, and yourself about your enrollment
treatment program. During that discussion you agreed to (1) complete the requirements of
program as set forth by Mr. Mason, (2) submit to frequent drug testing by both All Saints
Group and Transit management of Racine, Inc., and (3) submit to a standard Department of
Transportation (D.O.T.) physical in order to determine
your fitness to operate a mass transit coach.
It was agreed that your participation in the
treatment program was a "last chance" agreement between yourself and TMR to retain your
employment, and that management's actions are consistent with the Alcohol &
Policy contained in the current Labor Agreement. You were given a letter summarzing the
conversation later that day.
On July 27, 1998, at 4:00 p.m., a meeting
was held at St. Luke's Hospital to discuss your
participation in the All Saints program. Present were Mr. Diers, Mr. Mason, and Walter
Steward for Teamsters Local #43, and yourself. During that discussion you were informed
noncompliance with the requirements of the treatment program. You were directed to fully
cooperate with the terms of the program to satisfy its requirements, and retain your
You agreed to do so.
On August 21, 1998, you were discharged
from the Outpatient Program at All Saints for
failure to comply with your personalized treatment plan. In a letter to you from James
August 21, 1998, he informed you that your participation was thoroughly discussed by the
in the Outpatient Program. It was a unanimous decision, with Dr. James Miller concurring,
be disqualified for non-compliance.
On August 26, 1998, from 10:00 - 10:30
a.m., a meeting was held in the office of John Diers
to discuss your employment status with the company. Present at the meeting were Mr.
Rogstad, Mr. Coney, George Nicks, Associate Steward, Carol Davis, Secretary, and
Diers explained to you that your discharge from the treatment program for non-compliance
violation of the corporate Alcohol & Substance Abuse Policy, and disqualified you from
your employment with Transit Management of Racine, Inc.
Therefore, effective immediately, we are
terminating your employment with the company.
The decision to terminate your
employment is based upon your failure to conform to the
Alcohol & Substance Abuse Policy, which is part of the Labor Agreement between
Teamsters Local #43.
We recommend that you follow the advice
of James Mason and contact St. Clair House . .
. for continued rehabilitation.
Because the testimony poses disputed facts, the background which follows will first
sketch the core
of undisputed facts, then give an overview of witness testimony.
In early October of 1997, the Employer, as part of a round of random testing,
Grievant to submit to a drug test. He did so, and tested positive for cocaine. This was the
first positive test. As a result of testing positive for cocaine, the Grievant was suspended
and admitted to a thirty-day outpatient rehabilitation program at All Saints Medical Center.
is the Employer's EAP provider.
After completing the thirty-day outpatient program, the Grievant returned to his
a bus driver for the Employer. Prior to his discharge, he had been so employed by the
roughly twenty years.
Sometime in late June of 1998, the Grievant, used sufficient cocaine at a party that he
wandered from the party into a Racine City park, sufficiently disoriented that he had to be
to a hospital emergency room. Sometime after that he voluntarily re-entered a rehabilitation
at All Saints. One of his care providers was James Mason, a Psychotherapist.
In a letter to Diers dated June 29, 1998, Mason summarized the Grievant's care
Per our recent phone conversations, thisis
to verify that(the Grievant) did not attend his
scheduled appointment in the intensive OutpatientProgram on
June 25, 1998.
On June 26, 1998, he did arrive for the IOP sessions, but was
assessed as intoxicated by thecounselor conducting IOP. (The Grievant) admitted to using cocaine earlier that
He was referred to the Emergency Room who made arrangements for him to live at the
over the weekend.
Today, (the Grievant) contacted me by phone. I expressed to him
my grave concerns over his
motivation for treatment, which heappears to be using primarily as a
vehicle to maintain his
employment, as opposed to seeking treatment in order to remain chemically free. (The
not dispute my observations.
I informed him that we were willing to help him, but any further
use of chemicals or non-compliance withattendance will result in his
dischargefrom Outpatient with a referral to a higher
level of care.
(The Grievant) said he understood me quite clearly.
Sometime on July 1, the Grievant phoned the Employer to discuss his situation. The
the Grievant submitted to a physical examination, which revealed, among other things, an
ECG. As a result, the Grievant made an appointment to see his personal physician, Dr. Jose
In a letter to the Grievant dated July 7, 1998, Rogstad stated the Employer's view of
events of the first week of July thus:
This letter serves as confirmation of a conference telephone call
on July 1, 1998, at 10:00 a.m.,
in which you, John Diers, and myself discussed your current enrollment in a rehabilitation
through All Saints Medical Group.
During the discussion you agreed to (1) complete the requirements
of the program as set forth
by Mr. James E. Mason, (2) submit to frequent drug testing by both All Saints Medical
Transit Management of Racine, Inc., and (3) submit to a standard Department of
(D.O.T.) physical in order to determine your fitness to operate a mass transit coach.
Dr. Donald N. Garland performed a D.O.T. physical for you on
July 2, 1998, and has informed
me that he will not release you to return to work until you have satisfactorily completed the
Therefore, you will not be returning to work until both Mr.
Mason and Dr. Garland are satisfied
that you are free of substance abuse, satisfactorily completed the program, and fit to drive.
Your enrollment into the rehabilitation program is a "last chance"
agreement between you and
TMR to retain your employment. Any positive test results for drugs and/or alcohol within
ensuing 36 months will result in your immediate dismissal from employment with the
Moreover, management's actions are consistent with the Alcohol & Substance Abuse
contained in the current Labor Agreement.
You are instructed to communicate with me on a weekly basis,
providing an update on your
activities connected with your rehabilitation program.
I wish you the best of health as you proceed with your program's
requirements, and look forward
to hearing from you.
The Grievant did not seek and was not offered Union representation for this phone
Union representative was aware of it until well after the "last chance agreement" had been
Rogstad did not "cc" a Union representative on the July 7 letter.
The Grievant was enrolled in the rehabilitation program throughout July, but as the
progressed, issues concerning his satisfactory completion of the program arose. These issues
the subject of a meeting involving Diers, Mason, a Union representative and the Grievant.
meeting took place on July 27, 1998.
On August 18, 1998, the Grievant consulted with Dr. Reyes, who determined the
was suffering from high blood pressure. He prescribed medication for the condition, and
the Grievant with samples of the prescription to take until he could fill the prescription. The
did not inform Reyes he was taking an over-the-counter medication for a cold. The
he felt ill.
The Grievant had a therapy session scheduled for August 19, 1998. Sometime
the session, he phoned All Saints to advise Mason that he would not attend the session.
up before the Grievant felt he could adequately explain the basis for the absence.
In a letter to the Grievant dated August 21, 1998, Mason stated the following:
With this letter I am informing you that you are discharged from
the Outpatient Program of All
Saints, due to your failure to attend the required Aftercare Group session on August 19,
matter was thoroughly discussed by our entire staff and was a unanimous decision, with Dr.
During the Employer Conference of 7/27/98 and during our last
individualized session of 8/18/98,
your treatment plan was thoroughly reviewed, including the stipulation that if you were
non-compliant, you would be discharged. You agreed to those terms on both occasions.
I would recommend you contact St. Clair House for residential
treatment . . . and continue
attending 12-Step Meetings.
Mason issued a copy of this letter to Diers, who summoned the Grievant to the August
meeting noted above. When the Grievant received Mason's letter, he returned to Reyes.
consultation which included rechecking the Grievant's blood pressure, Reyes gave the
memo addressed "TO Whom It May Concern," dated August 25, 1998. That memo states:
Please excuse the above named patient from
his after care group session that was held on August
19, 1998. Due to Severe gastroenteritis, and dehydration and bronchitis. IF you have any
please feel free to contact me at my office.
The Grievant supplied this memo to the Company on August 25.
The balance of the background is best set forth as an overview of witness testimony.
Rogstad noted that the Drug and Alcohol Testing program has been included in the
agreement since 1996, and was the result of collective bargaining. Mason notified the
the final week of June, 1998, that the Grievant's release to work the prior November had
conditioned on his attendance at after-care sessions. The Grievant had not attended such
This was the Employer's first notice that the release to return to work was conditional and
condition had not been met.
Sometime around 6:00 a.m. on June 24, the Grievant phoned Rogstad. He advised
that he was home, but had been found wandering, totally disoriented, through a City park.
at the party he had attended called the police after the Grievant wandered from the party.
found the Grievant and took him to an emergency room. Two psychiatrists examined him
regained consciousness, and advised him to stay and enter rehab. The Grievant declined,
home. The Hospital phoned him at home to again urge him to enter rehab. The Grievant
decided to phone Rogstad and ask his advice.
Rogstad informed the Grievant he would not contradict the doctors, and advised him
seriously consider their recommendation. He characterized his advice to be that he "strongly
suggested" but did not order the Grievant to enroll in a rehab program. The Grievant
he would call the hospital again. When Rogstad phoned the Grievant later that morning, he
that the Grievant had voluntarily entered a rehab program. Rogstad believed he could have
Grievant to report for work, then tested the Grievant to yield a mandatory discharge. He
Grievant's willingness to enter rehab made this course of action inapprorpriate. He
that in the absence of this phone call, he would not have had reasonable suspicion to test the
Rogstad's next direct contact with the Grievant came on July 1, when he was asked
to join on a telephone conference call with the Grievant. That conference started sometime
Rogstad was asked to join. During that call, Rogstad and Diers informed the Grievant that
return to work only if he successfully completed a full rehabilitation program. Rogstad
that the phone conversation did not include all of the detail
of the July 7, 1998 letter, but stated that the Employer clearly informed the Grievant
that a failure to
successfully complete the rehab program meant discharge.
Rogstad did not attend the July 27, 1998 meeting, and next heard directly from the
on August 21, 1998. On that date, the Grievant phoned Rogstad to state that he had
All Saints program and wished to return to work. Mason's letter of August 21 precluded
prompted the August 26 meeting, which confirmed the Grievant's discharge. Rogstad
that the Grievant supplied the Employer with Reyes' August 25 memo. He noted, however,
Employer did not know specifically why Mason had expelled the Grievant from the rehab
He viewed the August 19 absence as the "straw that broke the camel's back," but felt that
longstanding questions concerning the Grievant's comittment to rehabilitation. From his
Reyes' memo was dated and did not address the fundamental issue of compliance with the
Rogstad acknowledged that the Grievant was a long-term employe and that the
discharge came "much to our dismay." He did not, however, see the Grievant's work record
spotless, noting prior discipline for tardiness and absenteeism.
Diers testified that from early in the Grievant's 1998 rehabilitation, Mason voiced
regarding the Grievant's desire to get and to stay clean. Mason noted the Grievant continued
positive and was missing sessions. He noted his "rather grave concerns" that the Grievant
complete the program. Diers, in at least one phone conversation, passed these concerns on
Grievant, warning him that he was putting his long years of service at risk.
Diers and Rogstad communicated the last chance agreement summarized in the July 7
in the hope that the Grievant would take the warning and commit to rehab. Later in July,
Mason again phoned Diers to inform him that he believed the Grievant would end up
the program. At that point, it was decided that a meeting would be held to highlight for the
the dire situation he was in. That meeting took place on July 27 at a hospital with which All
is affiliated. The Grievant, a Union representative, Mason and Diers met to discuss with the
the compelling need for him to get and to stay clean. Mason informed the Grievant that if he
start to test clean and to attend each care session, he would be expelled from the program.
underscored this by pointing out that if the Grievant did not successfully complete the
would give up his seniority and all his benefits.
This effort, in Diers' view, failed. With the Grievant's expulsion from the rehab
discharge was inevitable. The August 26, 1998, meeting confirmed this. The Grievant was,
view, in denial and argumentative throughout that meeting.
Diers acknowledged he could not remember who initiated the July 1, 1998 phone
and that the conference did not address all the specifics of the All Saints program. Rather,
Rogstad impressed on the Grievant how important it was for him to successfully complete
program. Diers further acknowledged no Employer representative ever informed the
a failure to attend any specific therapy session would result in discharge.
The Grievant noted that no one from All Saints informed him that his October, 1997
to return to work was conditioned on attending after-care therapy. He did not learn that
believed this until the discharge meeting of August 26, 1998.
Family problems, including a death, brought him back to cocaine in June of 1998.
he did not phone the Employer until July 1 to advise them of his relapse. He phoned the
which routes calls through Rogstad. Rogstad then added Diers to the conversation. He had,
time of this call, voluntarily entered a rehab program at All Saints. He called the Employer
someone had informed him that he risked being terminated if he did not obtain some leave
Employer. He did not seek Union representation.
During the July 1 conversation, Rogstad and Diers informed the Grievant that he had
successfully complete the rehabilitation program. They did not, however, inform him that
a single meeting could bring about his discharge.
The meeting of July 27 included, besides himself, a Union representative, Mason and
The meeting was to highlight that the program was nearing its completion, but that he did not
have enough clean time to be released to work. Mason highlighted the classes he would have
attend and informed him that he needed perhaps two weeks of clean time to be released from
program. If he attended the classes and stayed clean, he would be graduated from the
acknowledged he was testing positive for cocaine throughout July of 1998.
The August 18 visit to Reyes caused the illness which kept him from attending the
meeting. He did not realize his cold medication would conflict with his blood pressure
They did, however, and on August 19 he experienced nausea, diarrhea and dizziness. He
shortly before the therapy session to call in his absence
because he hoped his symptoms would ease so that he could make the session. When
he called in,
Mason had no interest in listening to him, simply hanging up before he could explain the
Mason's letter of August 21 came as a shock to him, and he went to Reyes as soon
could after receiving it. He mailed a copy of Reyes' August 25 memo to Mason and hand
a copy to the Employer. The following day none of the meeting participants seemed to care
After his discharge, he called friends and family members. A cousin told him that he
get into rehab as soon as possible. The Grievant voluntarily entered a forty-five day
program at St. Clair House. He was, at the time he entered, "really down." The program
be very difficult and intense, but he completed it successfully. Upon his completion of the
he received the following memo from Steven Essiembre, a Counselor/Manager at St. Clair
(The Grievant) voluntarily admitted himself into the Genesis
St.Clair House, a men's 45-day
residential treatment facility of AODA issues on 09-23-98. During (his) course in
was determined that his motivation for being in treatment was to save his employment as a
for the city. However, as treatment progress(ed), (he) began seeking sobriety for himself.
his stay, (he) appeared reluctant to put in all of his efforts in participation and assignments,
excuses such as his age and lack of education. With (the Grievant) behind by several
his stay at the St.C(l)air House was extended for an additional week. With staff
was able to complete all of his assignments on time, and was discharged on 11-09-98 with a
of completed rehabiliation program.
If you have any further questions about (his) course in
rehabilitation, please feel free to
contact me . . .
He attributed the success of his stay at St. Clair House to the more intense nature of
At St. Clair, he had greater contact with care-givers, prayer sessions and a wider variety of
counseling. He has been clean since the end of July, 1998. He regularly attends after-care
At the time of hearing, he was attending between two to five such meetings a week. He
himself as a good worker, with no history of disciplinary suspension.
The Grievant specifically denied phoning Rogstad on June 24. He noted he did not
Employer until July 1, after he had entered rehab. He thought he was on active status as a
between June 23 and July 1. He stated that the July 27 meeting was to clarify how he could
to work. The August 19, 1998 therapy session was the only
session he missed. He specifically denied Mason ever informed him that a failure to
would result in his expulsion from the rehabilitation program. He also denied that Mason
questioned his motivation for entering rehab.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Employer's Brief
After a review of the evidence, the Employer notes that "evidence and testimony . . .
established that the Grievant, on at least two occasions in less than one year, engaged in
use." Significantly, one of those occasions followed an offer of rehabilitation from the
The Employer contends that "(o)verwhelming public policy supports the proposition
transit systems require that their bus drivers remain drug free." That policy is codified in
regulations of the United States Department of Transportation, and is underscored by a long
decisions from federal courts. Beyond this, "Arbitrators have likewise upheld an employer's
discharge an employee for testing positive for illegal drugs."
The facts posed here clearly fall within this public policy mandate. The Employer
simply drug tested the Grievant after his conversation with Mr. Rogstad on June 24,
1998," but chose
instead to give "the Grievant the benefit of the doubt" by permitting him "to be away from
an indefinite period and enter into a rehabilitation program." This leniency presumed,
the Grievant would complete the rehabilitation program. Since the Grievant failed to do so,
Company was forced to discharge him from his position as a bus driver."
The Union's contention that the Grievant "never should have been taken out of
regardless of his admitted cocaine use," seeks a "totally irresponsible, if not reprehensible"
The Union effectively punishes the Employer for not immediately compelling a second drug
which would have produced the second offense resulting in mandatory discharge. The
cannot reasonably be held accountable for the Grievant's failure to complete the rehabilitation
program. Evidence adduced at hearing underscores this, since "the Grievant showed no
his illegal drug use"; since he "refused to admit any wrongdoing"; and since he "placed the
others and denied most aspects of his attempt at rehabilitation." In sum, he "presented the
case of denial."
Nor can the Union's evidence of "post discharge conduct" support a finding that the
Employer lacked cause to discharge the Grievant. To find the Employer lacked cause to
based on conduct occurring well after the Grievant's failure to complete rehab "would be a
reprehensible breach of public trust and an unfathomable safety risk." The Employer
grievance must be denied in its entirety.
The Union's Brief
After a review of the evidence, the Union contends that the Employer has failed to
burden of proving that "the greievant committed the offense for which he was disciplined,
offense is one for which discharge is an appropriate penalty and that the grievant knew or
known that his conduct would subject him to discharge." That the Grievant "voluntarily
to the Company that he was again using drugs and needed further help" and that "the
would not have had reasonable suspicion to discharge him" in the absence of this disclosure
significant mitigating criteria under relevant arbitral precedent. Beyond this, the absence of
representation during the "negotiation" of the Grievant's last chance agreement precludes a
application of that agreement. That he was unaware "that a missed meeting due to illness
discharge from the program and employment," makes discharge an "unduly harsh" penalty.
The Grievant's absence from the August 19, 1998 meeting is traceable not to "his
unwillingness to abide by the terms of the agreement," but to illness brought on by the
combining of high blood pressure medication with an over-the-counter sinus medication. As
by his physician, he "missed a group meeting session meeting because he was sick." The
tried to attend the meeting, and waited until before the meeting to call in his absence only
he waited as long as possible for his symptoms to subside. His absence and his counselor's
unwillingness to listen to his explanation are factors beyond the Grievant's control. Under
arbitral precedent these factors cannot warrant discharge. That the Grievant was unaware he
be discharged for this single absence affords further reason to conclude the Employer lacked
for terminating his employment.
The Employer's justifications for the discharge will not withstand scrutiny. The
noncompliance with the October, 1997 rehabilitation ignores that neither the Employer nor
Grievant "were aware of (the Grievant's) 'noncompliance' until late June or early July,
All Saints "cleared (the Grievant) to return to work in October, 1997, and did not inform
he was required to attend follow-up sessions once he returned to work" cannot be held
Grievant. Similar considerations govern his subsequent dismissal from the program. The
missed meeting on June 25, 1998 and the alleged intoxication on June 26, 1998, predate the
chance agreement, and thus "should not have been part of the Company's decision to
The evidence establishes that even though the Grievant "continued to test positive for
into approximately mid-July, 1998" he "began the road to rehabilitation following his
Diers and Mason on July 27." As directed at that meeting, he "immediately obtained a
"stayed clean." A review of these facts in light of relevant arbitral precedent will not
discharge based on an absence from a single group meeting in August of 1998.
Even if it is assumed that some discipline must be imposed for the Grievant's
"discharge was too severe a penalty in this case considering the evidence of (his)
rehabilitation." More specifically, the Union points to the Grievant's self-enrollment and
completion of "an intense, forty-five day, in-patient program at the St. Clair House." He
participates in ongoing after-care therapy meetings and "has been clean for approximately ten
and still has the same sponsor that he obtained on July 27, 1998." That he maintained a
record over his "approximately twenty years as a bus driver" further mitigates against
relevant arbitral precedent.
The unique nature of addiction may require an addict to face a catastrophe before
back to sobriety. Whether the Grievant started on the road to recovery prior to or because of
discharge can not obscure the significance of his post-discharge effort to stay clean. Because
precedent establishes that the "primary purpose of industrial discipline is to correct individual
and to prevent future infractions, not to inflict punishment for wrongdoing," and that "it is
thought that a return to employment is a necessary part of the total rehabilitation of an
it is necessary to return the Grievant to his livelihood. The Union concludes that "the
should order the Company to reinstate (the Grievant) and make him whole."
The stipulated issue questions whether the Employer had just cause to discharge the
Article 14, Section 2 states the just cause standard, which is made applicable to the Alcohol
Substance Abuse Policy, (the Policy) in Section 5 of the Memorandum of Understanding.
Because the parties have not stipulated the standards defining just cause, the analysis
in my opinion, address two elements. First, the Company must establish the existence of
the Grievant in which it has a disciplinary interest. Second, the Company must establish that
discipline imposed reasonably reflects that interest. This does not state a definitive analysis
imposed on contracting parties. It does state a skeletal outline of the elements to be
relies on the parties' arguments to flesh out that outline.
Application of the first element highlights the fundamental difference in the parties'
views of the grievance. From the Employer's perspective, its disciplinary interest centers on
Grievant's inability to successfully complete a rehabilitation program. From the Union's
the Employer's disciplinary interest centers on the Grievant's failure to attend a single
That the Employer has a disciplinary interest in the Grievant's successful completion
rehabilitation program is apparent. The second paragraph of Article IX of the Policy states
Employer's general disciplinary interest in this area. More specifically, the Policy is stated,
9, Section 3, c, as a work rule. Under the first paragraph of the Memorandum of
parties have agreed that the Policy "shall be enforced as a work rule." The specific dispute
the application of the first element is whether the work rule violation posed by the grievance
Grievant's absence from a single therapy session or his inability to successfully complete the
Saints rehabilitation program.
Although the force of the Union's arguments must be noted, the evidence supports
Employer's contention that the Grievant's expulsion from the program rests on more than a
absence. From the Employer's perspective, the reasons for the expulsion are irrelevant,
discharge can be rooted in the expulsion itself. This view is not, however, reconcilable to a
analysis. For example, an expulsion based on non-clinical reasons, such as personal dislike
counselor and client, can not be considered to withstand scrutiny under a just cause analysis.
excusable absence arguably forms no more persuasive a basis to justify discipline.
The record establishes, however, that the Grievant was expelled from the
program because he failed to commit to becoming and staying drug-free as required by the
As the Union persuasively points out, the Grievant's failure to attend after-care following his
October, 1997 rehabilitation cannot be held against him here since it is unproven that All
communicated this as a condition of his release to work. It forms, however, a troublesome
background to his June, 1998 relapse. Whether the need for after-care had been clearly
communicated or not, it is apparent the Grievant lacked the commitment to attend after-care
absence of compulsion.
The evidence establishes the Grievant entered rehabilitation in June of 1998
demonstrated a dubious commitment from the start of the program. Rogstad's credible
indicates the Grievant had difficulty accepting the recommendation of clinicians that he enter
Mason's June 29, 1998 letter establishes that he was not clean, and was not attending
meetings. This pattern proved sufficiently troubling that by late July, Diers and Mason
something had to be done to put the "fear of God" into the Grievant. This resulted in the
of July 27, but that meeting had a less than convincing impact. Mason's letter of August
highlights the Grievant's absence from the
August 19 meeting as the factor precipitating the expulsion, but the letter notes it
was "a unanimous
decision, with Dr. James Miller concurring." This points not to a single incident, but to a
in the therapeutic process. Mason's letter recommends more intensive treatment at St. Clair
Significantly, Essiembre's memo highlights the initially shallow nature of the Grievant's
to rehabilitation and the extension necessary for the Grievant to complete the program.
memo also highlights that, to the Grievant's credit, his commitment grew in strength as the
progressed. This cannot, however, obscure that as of August 26, 1998, the Employer
employe who failed to commit to rehabilitation. Significantly, on August 21, 1998, the
phoned Rogstad, asserting that he had completed the program and wished to return to work.
Against this background, it is impossible to restrict the Employer's disciplinary
interest in the
Grievant's conduct to his absence from the August 19 meeting. Rather, the evidence
course of conduct from June of 1998, which caused the Grievant's expulsion from the All
rehabilitation program. The Employer has a demonstrated disciplinary interest, under the
requiring the Grievant's successful completion of a rehabilitation program. Thus, the first
to the just cause analysis has been met.
This poses the second element of the just cause determination. The issue is whether
Employer's demonstrated disciplinary interest warranted the Grievant's discharge. The
basis for discharge is solid. The Policy represents a significant collective bargaining effort.
roughly thirteen pages of the labor agreement. Had the positive tests in June and July of
while the Grievant was in work status, there is no dispute that his discharge could have been
on Section VIII, B, 3, a (Second Offense) of the Policy, which requires "(i)mmediate
for a second positive test "(w)ithin 36 months." The strength of the Employer's position,
flows from Section VIII, B, 3, b, (First Offense), which requires an employee referral to an
assessment and subsequent compliance with recommended rehabilitation." The reference to
"subsequent compliance" supports the Employer's conditioning the Grievant's return to work
The Union persuasively contends that this solid contractual support cannot be
unquestionable, and must be tempered by consideration of the Grievant's conduct and
positive tests of June and July, 1998, did not come while the Grievant was on work status,
but as a
result of his voluntary submission for treatment. That this can be relevant to determining the
of discipline has support in the first sentence of Section VIII, B, 2 and in the second
Article IX of the Policy, which imply there can be discretion in the level of discipline
imposed for a
positive test. The Union also cites arbitral precedent permitting a reduction of discharge in
drug and alcohol abuse.
The persuasiveness of the Union's position ultimately turns on the Grievant's
effort at St. Clair House. The Employer's conditioning of his return to work on successful
rehabilitation has contractual support in the specific terms of Section VIII, B, 3 of the Policy,
must be considered superior authority to the general terms of Section VIII, B, 2. The second
sentence of Section VIII, B, 2 underscores this. The Grievant's long record of service must
acknowledged. The persuasive force of that service, however, turns on his successful
at St. Clair House. Long service is not, under the Policy, a defense to a positive drug test.
Apart from the Grievant's post-discharge conduct, the Employer's decision to
Grievant cannot be faulted under the labor agreement. The Policy affords employes who fail
test, but do not commit an offense otherwise warranting discharge, the chance to save their
successfully completing rehabilitation. A second positive test within thirty-six months brings
termination. The Employer afforded this opportunity to the Grievant in 1997 and effectively
it in 1998. As noted above, the Employer has the authority to condition a return to work on
successful completion of a rehabilitation program. The evidence establishes that Diers and
weighed the Grievant's length of service against his failure to complete rehabilitation. The
to discharge was, in their views, regrettable but necessary. The evidence supports the
of their view as well as the contractual support for it.
From the Union's perspective, the application of the second element turns on whether
Employer can be compelled to honor the Grievant's post-discharge rehabilitation by
to work. The beneficial clinical and personal elements to this contention have force, but
this record, supply the contractual basis required for an arbitrator to compel the result.
The basis for this conclusion is perhaps best explained by tying it more closely to the
arguments. The Union's citation of arbitral precedent, particularly exxon company, u.s.a,
997 (sergent, 1993) has persuasive force. The evidence, however, falls short of supporting
strength of the Union's post-hearing argument. Sergent characterized the record before him
It is reasonable for the Company to demand compliance with the
terms of the recovery program
as a condition of employment and to enforce that requirement with discipline including
However, where the lapses are minor, quickly made up and the result not of an unwillingness
comply but of good faith mistakes, discharge for the first such problem seems too harsh.
101 LA at
Some parallel with this grievance is apparent. However, as noted above, the evidence
falls short of
establishing that the Grievant missed only one session due to illness. His lack of
commitment to the
process was stated by Mason in late June, prompted the July 27 meeting, and was noted by
in late September. Each person directly involved in the Grievant's care or who observed the
of that care noted a similar pattern.
Nor does the Grievant's testimony overcome this evidence. His assertion that he was
work status until July 2 is unsupported by any other evidence. If true, the assertion weakens
grievance by establishing his working during a period he was using cocaine. His assertion
July 27 meeting turned on no more than Mason's recommendation that he needed to have
clean time before returning to work is dubious standing alone. Not surprisingly, it is not
by any other evidence. Rogstad's testimony that the Grievant sought to return to work after
expelled from the All Saints rehabilitation program stands unrefuted.
The Grievant's testimony cannot be summarily dismissed as a simple credibility
between himself and others. The evidence affords no basis to dismiss the testimony of any
witnesses as incredible. The Grievant's testimony manifests less a conscious
misrepresentation of fact
than a pattern of denial. That pattern led to and continued through the meeting of
August 26. The
Grievant's recounting of the events of June through August of 1998 notably omitted any
recognition of personal responsibility for those events.
In sum, minor lapses in a conscientiously followed rehabilitation program were
exxon, but are not present here. As in exxon, a last chance agreement was implemented
the union's direct input. Evidence of waiver is present here, which was not present in
more significant point here, however, is that it is not necessary to strictly interpret the last
agreement to note that the Grievant failed to successfully complete a rehabilitation program
his own conduct up to the missed session of August 19. If his expulsion rested on that
the parallel to exxon could be more persuasive here. His expulsion, however, turned on the
unanimous decision of his counselors, which is traceable to events beyond the August 19
The Union notes that the expulsion from the All Saints rehabilitation program may
the catastrophe needed to spark the Grievant's desire to rehabilitate, and that in any event the
of contractual discipline is to rehabilitate improper behavior, not merely punish it. This
force of this
argument as a matter of rehabilitation therapy or as a matter of arbitral precedent cannot
it must be given a contractual and factual basis. As noted above, however, the Policy is a
collectively bargained procedure. Beyond this, the Policy has a basis in federal law. The
statutorily noted public safety issues, coupled with the detailed, collectively bargained nature
Policy afford little room for
arbitral inference beyond its stated provisions. Since the Employer followed its
provisions, it is
difficult to find a contractual basis for the result the Union seeks.
The evidence also poses factual difficulties with the result sought by the Union. The
contention that the discharge motivated post-discharge rehabilitation warranting reinstatement
difficult to reconcile with the grievance's request for "all back wages and benefits." If the
of August 26 produced a level of commitment from the Grievant which the July 27 meeting
the difference would appear to lie in the dire effects of termination. How rescinding the
effect of the termination serves the therapeutic model is not immediately apparent. Beyond
is not apparent why the Grievant lapsed into drug abuse in 1997 and then relapsed in 1998,
his general statement that family problems prompted the relapse. The absence of detail on
prompting the drug abuse makes it difficult to conclude that the abuse was a treatable,
of a non-recurring cause.
None of the considerations noted above should be read to obscure that the Grievant's
commitment to rehabilitation through the St. Clair House was significant and praiseworthy.
personal and moral dimensions of the grievance dwarf the contractual, but this must not
an arbitrator has authority only over the contract. As of August 26, 1998, the Employer
the Grievant's expulsion from a rehabilitation program. In applying the Policy, Diers and
considered the significance of his service record and the risk of continuing him as a bus
concluded that the Policy called for his discharge. The decision posed here is not whether
counselor or I would like to return the Grievant to work. Rather, the issue is whether the
decision to discharge can be characterized as unreasonable under the labor agreement. It
thus the Employer has met the second element of the just cause determination.
The Employer did have just cause to discharge the Grievant.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 3rd day of June, 1999.
Richard B. McLaughlin, Arbitrator