BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LABORERS' INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL 140
SPARTA MANUFACTURING COMPANY,
(Donald Wagner Grievance)
Mr. Kevin Lee, Business Manager, Laborers'
International Union, Local 140, appearing on behalf
of the Union
Mr. Jeffrey Kilpin, Plant Superintendent, Sparta Manufacturing
Company, Inc., appearing on behalf
of the Company.
The Laborers' International Union of North America, Local 140 (herein the Union)
Sparta Manufacturing Company, Inc. (herein the Company) are parties to a collective
agreement covering the period March 1, 1998, to February 28, 2001, and providing for
arbitration of certain disputes between the parties. On February 15, 2000, the Union filed a
with the Wisconsin Employment Relations Commission (WERC) to initiate grievance
a denial of overtime pay allegedly due to Donald Wagner (herein the Grievant) and requested
appointment of a member of the WERC staff to arbitrate the issue. The undersigned was
to hear the dispute and a hearing was conducted on May 17, 2000. The proceedings were
transcribed and the parties did not file briefs.
The parties stipulated to the following statement of the issue:
Did the Company violate the contract when it failed to pay
Grievant for lost overtime
while on suspension pursuant to the Company's drug testing policy?
If so, what is the appropriate remedy?
HOURS OF WORK
(a) The workday shall consist of eight
(8) hours. The work week shall consist of forty (40)
Section 2. Overtime Provision
(a) Time and one-half (1) shall be paid
for all time worked in excess of eight (8) hours in any
one day or shift.
. . .
DRUG AND/OR ALCOHOL TESTS
. . .
B. REASONABLE SUSPICION
SPARTA MFG. CO. INC. WILL
REQUIRE A URINE TEST AND/OR BREATH
ALCOHOL TEST FOR AN EMPLOYEE WHEN THERE IS REASONABLE SUSPICION
BELIEVE THAT AN EMPLOYEE IS USING A PROHIBITED DRUG AND/OR
VIOLATION OF THIS POLICY. HOWEVER, THE DECISION TO TEST WILL BE
A REASONABLE BELIEF FROM SPECIFIC PHYSICAL, BEHAVIORAL, OR
INDICATORS OF PROBABLE USE. IF AN EMPLOYEE APPEARS TO BE UNDER
INFLUENCE OF DRUGS AND/OR ALCOHOL, THE SUPERVISOR SHOULD, IF
SECURE THE ASSISTANCE OF ANOTHER SUPERVISOR AND/OR UNION STEWARD
A SENIOR BARGAINING UNIT EMPLOYEE IF UNION STEWARD NOT AVAILABLE,
OBSERVING THE EMPLOYEE'S ACTION'S AND ESCORTING THE EMPLOYEE TO
APPROPRIATE OFFICE OR AREA FOR FURTHER INVESTIGATION. IF, AS A
THE INVESTIGATION, THE SUPERVISOR HAS REASONABLE CAUSE TO BELIEVE
THE EMPLOYEE IS IN A CONDITION THAT IS JEOPARDIZING WORKPLACE
CANNOT PERFORM HIS OR HER JOB BECAUSE OF ON THE JOB IMPAIRMENT,
EMPLOYEE WILL BE REQUIRED TO SUBMIT TO A
URINE DRUG TEST AND/OR BREATH ALCOHOL TEST.
THE SUPERVISOR AND/OR
EMPLOYEE MAY REQUEST A UNION REPRESENTATIVE ACCOMPANY THE
TO THE TEST SITE. HOWEVER, NEITHER SHALL BE PERMITTED TO IMPEDE
THE UNION REPRESENTATIVE
WILL CONTINUE TO BE PAID DURING THE TIME
REQUIRED TO ACCOMPANY THE EMPLOYEE, WAIT AT THE TEST SITE, AND
TO WORK, IF HE WOULD OTHERWISE BE SCHEDULED TO WORK DURING THIS
. . .
RANGE OF CONSEQUENCES
DISCIPLINARY ACTION TAKEN
AGAINST AN EMPLOYEE FOUND TO USE
ALCOHOL OR ILLEGAL DRUGS MAY INCLUDE THE FULL RANGE OF
ACTIONS INCLUDING TERMINATION. THE SEVERITY OF THE ACTION CHOSEN
DEPEND OF THE CIRCUMSTANCES OF EACH CASE AS FOLLOWS.
. . .
2. REASONABLE SUSPICION
AN EMPLOYEE ASKED TO SUBMIT
TO A URINE DRUG TEST AND/OR A BREATH
ALCOHOL TEST AS A RESULT OF REASONABLE SUSPICION, WILL BE
UNTIL RESULTS ARE RECEIVED FORM MRO.
A. AN EMPLOYEE WITH A VERIFIED
POSITIVE DRUG TEST WILL BE TERMINATED
FROM EMPLOYMENT AT SPARTA MFG. CO. INC.
B. A EMPLOYEE WITH A BREATH
ALCOHOL TEST THAT MEASURES 0.O2 OR
GREATER WILL BE GUILITY OF MISCONDUCT AND IS SUBJECT TO DISCIPLINE
AND INCLUDING TERMINATION OF EMPLOYMENT AT SPARTA MFG. CO. INC.
THIS IS EMPLOYEE'S FIRST OR SECOND POSITIVE FOR ALCOHOL AND
AGREES TO REHABILITATION PROGRAM ON PAGE 11 OR 12 OF THIS POLICY.
C. FAILURE TO APPEAR FOR TEST
AND/OR FAILURE TO PROVIDE A SAMPLE,
EMPLOYEE WILL BE TERMINATED FROM EMPLOYMENT AT SPARTA MFG. CO.
FAILURE TO RESPOND TO THE MRO'S INQUIRY TO CLARIFY TEST RESULTS
72 HOURS OF THE MRO'S INITIAL CONTACT, EMPLOYEE MAY BE TERMINATED
EMPLOYMENT AT SPARTA MFG. CO. INC.
. . .
Sparta Manufacturing Company has for some time instituted a Drug and Alcohol Free
Workplace Policy designed to eliminate drug and alcohol use in the workplace. Under the
Company may require an employe to submit to urine testing when it has reasonable suspicion
employe is under the influence of alcohol or any prohibiteddrugs
while at work.
The Grievant is a full-time employe at Sparta Manufacturing Company, Inc. and is a
of the bargaining unit. His regular shift is from 1:45 p.m. until 9:45 p.m., Monday through
however, he also regularly works overtime during the week and on weekends. During the
is instructed by his supervisor to work until production ends, which is typically around 10:30
On January 11, 2000, at approximately 3:00 p.m., the Grievant was instructed to
bags in the bag room. He did so and after about five minutes had to leave due to the amount
in the air. He went to the restroom and upon returning was told to report to his supervisor.
supervisor told him someone reported smelling marijuana smoke in the bag room shortly
Grievant was there, that this constituted reasonable suspicion under the Company's drug and
policy and that he would be required to submit to a test of his urine. The supervisor also
that, pursuant to the policy, he would be suspended from work until the Company received
results, but if the results were negative he would be reimbursed for pay lost during the
On Saturday, January 15, the test results were returned, indicating that the Grievant
negative for drugs and he was immediately reinstated. Subsequently, he was paid eight hours
straight time for January 12, 13 and 14 and overtime for January 15, representing the time
from work. He then filed a grievance based on his contention that he should also have been
overtime lost on January 12-14. The Company denied the grievance and the matter moved to
arbitration. Additional facts will be included, as needed, in the Discussion section below.
POSITIONS OF THE PARTIES
The Union's position is that the Grievant is entitled to be compensated for all time
work while was suspended under the Employer's drug testing policy. The intent of the
policy is that
the employe should be made whole in cases where the drug test is negative. Here, the
regularly worked overtime, yet was only compensated for eight hours per day of straight
he returned. He is entitled to compensation for lost overtime, as well, at one and one half
regular hourly rate.
The Company maintains that it followed the drug and alcohol policy as written. It
maintains that its practice in the past has been that employes are compensated for eight hours
straight time for days missed, whether for vacation, holidays or any other absence for which
allowed. The Company has never paid overtime for time missed and should not be required
to do so
This case focuses on the implications of being tested under the Company's drug and
free workplace policy. The policy gives the Company the authority to require an employe to
a urine screen whenever there is reasonable cause to believe the employe has been under the
of alcohol or prohibiteddrugs while at work. The Union and the
Grievant do not challenge the
existence of reasonable cause to require the Grievant to submit to the test, therefore, I do not
that question. Rather, the question is to what extent must an employe be recompensed for
at work during the mandatory suspension awaiting the test results when the results are
parties agree that the employe is entitled to back pay for lost work time. The question is
includes regular overtime.
As a starting point, it should be noted that the fact that the Grievant does work
a daily basis is not seriously disputed. The Grievant testified that he worked 13.5 hours of
two weeks prior to the event, 8.75 hours of overtime the week prior to the event, 14.5 hours
overtime the week after the event and 13.5 hours of overtime two weeks after the event,
approximately 12.5 hours of overtime per week. He also testified that he has continued to
approximately the same amount of overtime since that time. The Company does not dispute
figures. The Company did compensate the Grievantfor time missed
on an overtime shift on Saturday,
January 15, 2000, and he did work a full shift on January 10th.
There is a certain logic to the Company's position that daily overtime should not be
compensible. Under the contract, whenever an employe misses a day of work, whether it be
vacation, a holiday, a death in the family or any other reason for which leave is granted, the
is paid eight hours of straight time for each missed day. When time is missed under the drug
rules, the argument runs, assuming the employe has a favorable test result, the compensation
missed day(s) should be the same. The Company points out that it has never paid other than
time for missed work days for any reason and, therefore, it only followed a long standing
when it did so here. Nevertheless, I find the circumstances of this case to be distinct from
When an employe misses work to go on vacation, or due to a holiday, or to attend
of a loved one, those absences are to some degree a matter of choice. The employe has, for
reason or another, either bargained for a scheduled day off or elected to miss one or more
work. A mandatory suspension pending the outcome of drug test results, however, is
initiated by the
employer. The existing policy was apparently adopted unilaterally
by the Company and was not bargained over. It gives the Company the discretion to
reasonable suspicion of drug or alcohol abuse exists and permits the Company, on that basis
to suspend an employe and require him to submit to a drug test. Whether or not an employe
suspended for an indeterminate period, therefore, is entirely up to the Company and is in no
choice by the employe.
Certainly, that is the case here. The record indicates that on the day in question, the
went into the bag room at approximately 3:00 p.m. because he was instructed to do so.
Later, he was
told to report to the supervisor and was instructed to undergo a drug test because a foreman
smelled what he believed to be marijuana smoke in the vicinity of the bag house and assumed
Grievant had been smoking it. On that basis alone, the Grievant was suspended and was told
the test was negative he would be compensated for any lost time. The drug test proved
Therefore, in no sense can it be said that the Grievant initiated the suspension or brought it
through any act or omission of his own.
Thus, while the Company's blanket policy of paying only eight hours of straight time
regardless of the reason for the absence may appear on the surface to be even handed and
it is not so under the facts presented here. I am satisfied that if the Grievant had not been
he would have worked at least his average of 12.5 hours of overtime during the week of
2000. He was prevented from doing so only due to the suspension pending the results of the
test. Given that the Company concedes that under its policy employes with negative drug
to be reinstated and compensated for lost time, and given that this representation was also
the Grievant at the time, he should be made whole for all time lost while on suspension.
For all the foregoing reasons, therefore, and based upon the record as a whole, I
The Company violated the contract when it failed to compensate the Grievant for
which he would have worked, but for a suspension pending the results of a Company ordered
test. The Company shall, therefore, subtract the number of hours of overtime for which the
was paid during the week of January 10, 2000, from his weekly average overtime of 12.5
shall pay to the Grievant the remaining hours at one and one-half times his regular hourly
rate at the
Dated at Eau Claire, Wisconsin, this 7th day of September, 2000.
John R. Emery, Arbitrator