BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF FOND DU LAC
CITY OF FOND DU LAC EMPLOYEES
LOCAL 1366, AFSCME, AFL-CIO
Mr. Lee Gierke, Staff Representative, Wisconsin Council 40,
AFL-CIO, P.O. Box 2236, Fond du Lac, Wisconsin 54936-2236,
appearing on behalf of the Union.
Ms. Alyson K. Ziendt, Davis & Kuelthau, S.C., Attorneys
P.O. Box 1278, Oshkosh, Wisconsin 54903-1278, appearing on behalf
of the City.
The City of Fond du Lac, hereinafter referred to as the City,
and City of Fond du Lac Employees Local 1366, AFSCME, AFL-CIO,
hereinafter referred to as the Union, are parties to a collective
bargaining agreement with provides for final and binding
arbitration of grievances. Pursuant to a Request for Arbitration
the Wisconsin Employment Relations Commission appointed Edmond J.
Bielarczyk, Jr., to arbitrate a dispute over the termination of an
employee's employment. Hearing on the matter was held in the City
Hall, Fond du Lac, Wisconsin on November 17, 2000. A stenographic
transcript of the proceedings was prepared and received by the
Arbitrator by December 4, 2000. Post hearing written arguments and
reply briefs were received by the Arbitrator by January 30, 2001.
Full consideration has been given to the evidence, testimony and
arguments presented in rendering this Award.
During the course of the hearing the parties where agreed to
the following issue:
"Did the City of Fond du Lac have proper cause to
the employment of Steve Lazich on August 14, 2000?"
"If not, what is the appropriate
. . .
Except as otherwise specifically provided herein, the
Management of the City of Fond du Lac and the direction of the work
force, including but not limited to the right to hire, to
discipline or discharge for proper cause, to decide initial job
qualifications, to lay off for lack of work or funds, to abolish
positions, to make reasonable rules and regulations governing
conduct and safety, to determine schedules of work, to subcontract
work (no employee shall be laid off due to subcontract provisions)
together with the right to determine the methods, processes and
manner of performing work, are vested exclusively in Management.
. . .
PERTINENT DRUG AND ALCOLHOL POLICY
Federal Regulations prohibit employees from engaging in the
Using or possessing alcohol while on duty. NOTE:
Regulations include medications containing alcohol in the
substances banned from use or possession in the workplace.
Therefore, employees will not be assigned to safety-sensitive
job functions while using or possessing prescription or non-prescription medication if such
medication contains any
measurable amount of alcohol. It is the responsibility of
the employee to notify his/her supervisor of such medication;
Using alcohol within eight (8) hours following an
accident. If the
employee was required to be tested, unless an earlier test
results in a reading of less than 0.02.
Reporting for duty or remaining on duty while having an
concentration of 0.04 or greater;
Consuming any amount of alcohol within four (4) hours
reporting for duty;
Using controlled substances while on duty; unless the use
pursuant to the instructions of a physician who has advised
the driver that the substance does not adversely affect the
driver's ability to safely operate a commercial motor vehicle;
Reporting for duty or remaining on duty if the employee
positive for controlled substances; or
Refusing to submit to any alcohol or drug testing
required by this
In addition, City of Fond du Lac Policies
from engaging in the following conduct:
Dispensing, distributing or
receiving alcohol and controlled
substances while on duty;
Possession of controlled substances
while on duty; unless the use
is pursuant to the instructions of a physician who has advised
the driver that the substance does not adversely affect the
driver's ability to safely operate a commercial motor vehicle;
Reporting for duty or remaining on duty while having an
concentration of 0.02 but less than 0.04.
Reporting for duty or remaining on duty while under the
of alcohol or a controlled substance;
Deliberately misusing this policy in regard to
Providing false information in
connection with a test, or
falsifying test results through tampering, contamination,
adulteration or substitution.
. . .
V. REQUIRED TESTS
Refusal to take a required test will result
in removal of that
employee from his/her assignment(s) which, in turn, may result in
discipline up to and including discharge. [Emphasis added].
. . .
Preparation for Drug Testing
. . .
h. Refusal by an employee to complete and sign the
test and chain
of custody forms, to provide urine, to provide an adequate
amount of urine (to be decided on a case-by-case basis), or
other failure to cooperate with the testing process in a way
that prevents the completion of the test will be considered
grounds for disciplinary action, up to and including
termination. [Emphasis added].
. . .
Consistent with this policy the employer
may take disciplinary
action based on non-compliance with this policy by an employee and
specifically for actions as follows:
If a Medical Review Officer (MRO) reports that a
test is positive, the employee shall be subject to
discharge. Discharge shall be held in abeyance if the
employee enters into a last chance agreement and
successfully completes a Substance Abuse Treatment
If a BAT reports that a
breath test is equal to or exceeds
0.04, that employee shall be subject to discharge.
Discharge shall be held in abeyance if the employee
enters into a last chance agreement and successfully
completes a Substance Abuse Treatment Program.
If a BAT reports a breath
test is recorded between 0.02 and
0.04, the employee shall be subject to discipline
pursuant to "just cause". At a minimum, the employee
will be placed on leave without pay for a minimum of 24
hours following administration of the test.
Any employee who
refuses to submit to a urine drug and/or
breath alcohol test shall be subject to discharge.
Questions: Any employees with questions
with respect to the
scope of this policy and its contents may contact the Human
Resource Director at 929-3331.
. . .
The City has employed Steve Lazich, hereinafter referred to as
the grievant, for approximately eleven (11) years. At all material
times herein the grievant was in the position of a Laborer 1
Water/Meter Reader and, as a requirement of his position, required
to have a Certified Drivers License, hereinafter referred to as
CDL. Individuals who possess a CDL are required by United States
Government to undergo random drug and alcohol testing. Pursuant to
this requirement the City in 1995 negotiated with the Union a Drug
and Alcohol Policy, pertinent provisions are noted above. All
employees were distributed a copy of the Policy. The last page of
the policy, "Employee Acknowledgement Form," was to be detached by
employees, signed and returned to the City's Personnel Department.
The form states the following:
"I acknowledge that I have received, read and understand the
City of Fond du Lac's Drug and Alcohol Testing Policy on the date
indicated below and understand the provisions of this Policy. I
understand that the terms described in this Policy may be altered
or changed by the City of Fond du Lac to comply with the Federal
Omnibus Transportation Employee Testing Act of 1991 and its
implementing regulations, upon prior notice. I further understand
that any violation of the City of Fond du Lac's Drug and Alcohol
Testing Policy may subject me to discipline, up to and including
On March 9, 1995 the grievant signed the Acknowledgement
returned it to the City's Personnel Department.
The City does not have its own testing facilities and
contracts with Substance Abuse Management, Inc., hereinafter
referred to as SAMI, for administration of its drug and testing
programs. SAMI determines who is to be randomly tested for drug
and/or alcohol. They submit a list of names to the City's
Assistant Director of Human Resources, Angela Armson. Armson then
notifies the supervisor of the employee on the list who then
confidentially tells the employee
to go to SAMI for the test. On the morning of August 10, 2000
Armson informed the grievant's immediate supervisor, Dale
Paczkowski, that the grievant was to go to SAMI for a random drug
test. On August 10, 2000 Paczkowski was unable to contact the
grievant, so he informed Armson, and it was decided the grievant
would be directed to report on Friday, August 11, 2000 for the
test. Armson informed SAMI of the changed date and directed SAMI
to inform her if anyone failed to show up for the test.
On the morning of August 11, 2000 the grievant met with the
Director of Public Works Mark Lentz and Paczkowski to discuss an
attendance problem. At the conclusion of the meeting Paczkowski
directed the grievant to report for testing. As a City employee
the grievant had been tested on two (2) previous occasions. The
grievant was aware that normal operating procedure was that he was
to go immediately for testing. However the grievant waited until
noon to report. Shortly after noon, around 12:24 p.m., the
grievant reported to SAMI. Their Lab Assistant, Heidi Bengel met
him, demonstrated the procedures for him, put bluing in the toilet
of the bathroom the grievant was to use, and stood outside the
bathroom door to listen for running water. The bathroom has a sink
with only a cold water tap.
The grievant was aware he would not pass a drug test so he
added cold water to his specimen cup. When he exited the bathroom
he handed his specimen sample to Bengel who noted it failed a
temperature reading attached to the cup. She poured the specimen
into another specimen cup and it again failed the temperature test.
Bengel told the grievant he would have to provide another specimen.
The grievant informed Bengel he was leaving and would return after
lunch. Normal procedure it to keep the employee at SAMI until the
test is completed. Bengel informed SAMI Drug Screen Coordinator
Marcia Christian and she directed Bengel to go after the grievant
and bring him back. However, by this time the grievant had already
left the building. Bengel also contacted Armson and they discussed
the possibility the grievant may have tampered with his sample. At
approximately 1:50 p.m. Christian informed Armson the grievant had
Armson than contacted Paczkowski and informed him to contact
the grievant to direct him to go back for the test. Paczkowski was
unable to find the grievant and, as he would not be in the
Department's facility when the grievant returned at the end of his
shift, prepared a document directing the grievant to report to SAMI
for his test. The grievant received the directive but did not go
to SAMI for the test.
On the following Monday, August 14, 2000 the grievant reported
to work. Armson contacted Christian and was informed the grievant
had not reported for a test. Armson then took the matter to Human
Resources Director Benjamin Mercer. Mercer concluded the grievant
had violated the drug testing policy and a direct order of
management. Mercer discussed the matter with Lentz and they
concluded they were left with no option but to terminate the
Mercer and Lentz reviewed the matter with Paczkowski and
directed Paczkowski to direct the grievant to report to Lantz's
office with a Union representative. The grievant arrived without
a Union representative, one was found, Scott Luttenberger, and the
grievant was informed he was being terminated. The grievant
requested a second chance agreement which was allowable for
employees who failed a drug test and this was denied. On August
14, 2000 the grievant then went and had urinalysis performed at
SAMI at his own expense and he failed the test. Thereafter the
grievant filed the instant grievance and it was processed to
arbitration in accord with the party's grievance procedure.
The City contends it did not violate the terms of the labor
agreement when it discharged the grievant for refusing to submit to
a random drug test. The City argues the language of Article XXVII
as well as the language of the Drug and Alcohol Policy vests in
management the authority to discharge an employe for just cause.
The City argues the grievant's action in refusing to complete a
drug test on August 11, 2000 constitutes conduct in violation of
the Drug and Alcohol Policy. The City asserts there are no "shades
of gray" with respect to the grievant's conduct. The City avers
the grievant was directed to report immediately to SAMI for a drug
test and he failed to go until 12:25 p.m. He then tampered with
his sample. He left saying he would return after lunch and failed
to do so. He was given a second directive to go and be tested and
he chose to disobey this directive as well.
The City argues the grievant was fore warned of what his
actions would result in. He had received a copy of the policy and
returned the acknowledgement form. The City argues the grievant's
defense that he could not remember the details of the Policy is
irrelevant and subjective. The City stresses the Policy clearly
specifies that refusal to submit to drug testing shall be cause for
The City also argues that the Drug and Alcohol Policy is
reasonable and related to the orderly, efficient and safe operation
of City Business. The City points out it made an effort to
discover whether the grievant in fact had violated the policy, that
this was done fairly and objectively, and that it even gave the
grievant a second opportunity to go have the test done. The City
argues the conclusion reached by it was that the grievant was
guilty and there is no question he did not complete the drug test
at the time the decision was made to terminate his employment.
The City acknowledges this is the first instance when an
employee has refused to take a drug test. The City argues the only
other refusal involved a last chance agreement, the employee was
called at home whereat his spouse took the call, that it was not
the City's practice to have an employee who is off duty to take any
drug and/or alcohol tests, and that the City apologized for calling
the employee at home. The City acknowledges it has given to
employees who have tested positive the opportunity to enter into a
last chance agreement. However, the City points out, there is no
last chance opportunity for employees who refuse to be tested.
The City also argues the degree of discipline administered by
the City is reasonably related to the seriousness of the offense.
The City stresses that the core herein is an employee who tried to
subvert City policy that has at its purpose the protection of other
employees and the general public. The City avers the undersigned
should not substitute his judgement for the City's in deciding that
discharge was appropriate. The City argues it did not act in a
discriminatory, unfair or arbitrary and capricious manner and the
punishment was warranted.
The City would have the undersigned deny the grievance.
The Union argues that given the facts and the mitigating
circumstances herein that a lesser penalty was more appropriate.
The Union argues the grievant has a drug problem and this explains
a lot of his problems. The Union points out that the grievant was
disciplined, an oral warning, on the morning of August 11, 2000 for
an attendance problem. That same day he tampered with his drug
sample and did not return as he said he would. The Union argues
these actions are characteristic of a person with a drug problem.
Concealment, self-denial, and lying are all typical tools of a
person with an addiction.
The Union contends it does not raise these issues to give
credence to what the grievant did, but to ask for assistance for
him to deal with these matters. In support of its position the
Union points to the City Personnel Polity Handbook wherein it
"The City recognizes that alcohol and/or substance abuse are
medical problems and will offer medical assistance, as is available
for other illnesses."
The Union argues addictions are much more difficult sickness to
deal with because they are not apparent. The Union argues
termination of the grievant's employment would punitively punish
him for exhibiting the symptoms of a recognized illness. In
support of its position the Union points to Ashland Petroleum Co.,
90 LA 687 (1988), wherein the arbitrator held that after-the-fact
participation in a rehabilitation program is entitled to
consideration, and, that discipline should correct faults and
The Union also argues that a refusal to take a drug test does
not result in an absolute termination. The Union points out
refusals are referred to on page 4, 16 and 20 of the Policy. On
pages 4 and 16 the policy says " up to and including discharge."
The Union argues that if an employee test positive the employee is
offered a last chance agreement. The City's Medical Review Officer
informed Armson that a refusal constitutes a positive. The Union
points out the last chance agreement is a remedy that tells an
employee that if the employee engages in any further misconduct
they do at their own peril and can be discharged.
The Union argues the City also made mistakes in this matter.
The Union points out that the twenty-two (22) page document the
grievant signed states he would be disciplined, but, does not state
explicitly he would be terminated. The Union points out the City
acknowledged that in the five (5) years since it had been issued,
the policy had not been reviewed nor had anyone been disciplined
under the policy for failing to take the test. The Union points
out the City did not communicate after the grievant had left SAMI
on August 11, 2000 that he would be terminated if he failed to
return and take the test. The Union points out that while it would
have taken some effort the City could have contacted the grievant
prior to the end of his workday. The Union also points out that
Paczkowski's letter to the grievant did not state the grievant's
employment would be terminated if he did not cooperate and take the
test within a certain time frame.
The Union argues the grievant, though aware he was not doing
what was expected of him, was more fearful of what would occur if
he tested positive. The Union argues the grievant therefore did
not have a clear understanding of the consequences of his actions.
The Union points out even the City was unsure of what to do. The
Union also argues that had the grievant been apprised of the
penalty he would of taken the test and then worried about the
penalty for testing positive.
The Union also argues that SAMI was careless in its procedures
by having a facet available where someone could dilute a sample,
careless when it allowed the grievant to leave it's premises and
careless when it destroyed his sample. The Union acknowledges that
the grievant should be disciplined for his actions but that
termination is too severe of a discipline. The Union also points
out that in the grievant's eleven (11) year history no discipline
has gone beyond the warning stage. In conclusion the Union points
to Warehouse Distribution Centers, 90 LA 983 (1988), wherein an
employee who refused to take a drug test was reinstated.
The Union would have the undersigned sustain the grievance,
reinstate the grievant with a lesser penalty, and direct that the
grievant enter into a last chance agreement.
City's Reply Brief
The City asserts mitigation on account of drug dependence
and/or post-discharge rehabilitation is not warranted where there
is no evidence in the record that the Grievant is either drug
dependent or that he has participated in a post discharge
rehabilitation program. The City also asserts that not only was
there no medical evidence at the hearing or presented to the City
that the grievant has a problem with drugs, there was no admission
from the grievant that he has a problem. The City argues the facts
herein do not demonstrate the undersigned should consider the
mitigating factors raised by the Union as sufficient to overturn
The City argues the Drug and Alcohol Policy, negotiated with
the Union, reflects the parties' intent not to allow a last chance
agreement for employees who refuse to test. The City points out
that had it been the intent of the parties to allow employees who
refuse to take a test an
opportunity to enter into a last chance agreement they would of
placed such a provision in the subsection of the policy dealing
with employees who fail a test.
The City also argues that the grievant had adequate notice of
the consequences of refusing to test. The City points out the
grievant had received the policy, signed that he read and
understood it, and that the policy was explicit and described the
outcome for violation.
The City also argues the grievant's conduct is not excused by
any deviations of SAMI. The City acknowledges that the throwing
out of the sample did not strictly comply with federal guidelines
but this does not excuse the fact the grievant left, failed to come
back and that it was his choice not to come back.
The City also points out that it did not take into account the
grievant's past disciplinary record when it disciplined the
grievant. The City does argue that contrary to the Union's claim
that the record demonstrates the grievant has positively responded
to corrective discipline, some of the offenses such as attendance
are repeat problems.
Union's Reply Brief
The Union argues that contrary to the City's claim there was
notice to the grievant that he would be terminated for refusing to
take a drug test is demonstrated by the wording of "up to and
including termination." The Union concludes the language is not as
clear and explicit as the City claims. The Union also argues the
City did not give the grievant clear notice of the consequences of
his actions. The Union argues the City could of done so by
contacting him directly and by putting in the written memo to him
what would be the consequence if he failed to go take his drug
test. The Union stresses that immediately upon finding out the
consequences he went and took the test.
The Union also argues that contrary to Mercer's testimony (Tr.
p. 107), the City did have other options other than termination.
The Union points out the United States regulations do not require
an employee's discharge.
The Union also argues the undersigned has the right to amend
the penalty. The Union argues the policy allows latitude and avers
that the way the parties defined the issue gives the undersigned
latitude to determine an appropriate remedy. The Union also points
out there is arbitral precedent for arbitrators to reduce penalties
in drug and alcohol testing cases.
The facts herein are not in dispute. The fundamental question
is whether the discipline imposed by the City is too severe. The
Union argues there are mitigating factors which should be viewed,
and, after viewing these mitigating factors, the Union contends a
lesser penalty should
be imposed. While the undersigned would agree that under certain
circumstances arbitrators have taken into account mitigating
circumstances, such circumstances do not appear to be present in
the instant matter. The undersigned finds there is no evidence, as
in Ashland Petroleum Co., that the grievant has participated in a
substance abuse program. Further, except for the Union's assertion
the grievant is addicted to a controlled substance, there is no
evidence he has been diagnosed as someone who is addicted to a
controlled substance. Union Exhibit 4, while expressing the
grievant is undergoing a great deal of stress, does not identify
the grievant as having a substance abuse problem. Thus all we have
herein is the grievant's testimony and the Union's assertions that
he is addicted to a controlled substance. On this basis the
undersigned can not conclude the grievant has a controlled
substance addiction and that his actions should mitigate the
penalty imposed upon him. The undersigned would note here that it
is the Union's burden to demonstrate that mitigating factors exist.
Absent any showing that the grievant has been diagnosed by a
competent professional as being addicted to a controlled substance
the Union fails to meet the burden of demonstrating the grievant is
addicted to a controlled substance. Absent any showing that the
grievant had voluntarily entered some type of post-discharged
controlled substance rehabilitation program the Union has failed to
demonstrate the grievant is trying to correct the problem.
The undersigned also finds that the instant matter is
distinguishable from Warehouse Distribution Centers. Therein the
arbitrator did not find the employee's conduct to be gross
misconduct warranting a termination because the parties had labeled
use of drugs as gross misconduct and the arbitrator concluded a
refusal to take a drug test was a lesser misconduct. The parties
herein have mutually agreed to discipline up to and including
discharge for a failure to take a drug test. The grievant's
conduct is compounded by other facts. He attempted to falsify his
sample by adding water to it. Such conduct is a clear violation of
paragraph "h", on page 16 of the policy, and the grievant was aware
this was misconduct when he attempted to falsify his specimen
sample. This was conduct the grievant knew was wrong.
The grievant also failed to come back for the drug test as he
told the lab technician he would. The grievant clearly knew this
was improper conduct but chose not to return to SIMI's facility.
There is nothing in the record which would demonstrate that the
grievant did not knowingly determine not to go back after lunch.
While SIMI may have violated federal procedures by allowing the
grievant to leave the facility, this does not alter the fact the
grievant knowingly failed to return as he said he would.
The grievant also failed to comply with a written directive
that he return to the lab and take the test. The grievant does not
dispute that he received the written directive at the conclusion of
his workday. The undersigned finds no merit in the Union claim
that because this written directive did not state that the grievant
faced termination if he did not comply with it that the grievant
was thus unaware that his employment would be terminated. The
grievant was aware that he would be in trouble if he failed a drug
test. The grievant mistakenly assumed he would be in greater
trouble if he took and failed the test (Tr. p. 154). He thus
choose to refuse to
obey a written directive form his supervisor. Thus the undersigned
finds he has on his own volition warranted the disciplined imposed
The undersigned does note that page 4 of the Drug and Alcohol
Policy does state that a refusal to take a required test would
result in removal from your job assignment and discipline up to and
including discharge. The grievant has acknowledged that he has
received and read the policy. Thus the undersigned finds that the
grievant was aware that his acts could result in discharge. He was
also aware of last chance agreements. He had taken the drug tests
twice before. While the undersigned may be sympathetic to the
grievant's plight, the grievant was aware of what he was doing when
he added water to his specimen sample. The grievant was aware of
what he was doing when he left SIMI and did not return. The
grievant was also aware he was not following his supervisor's
written directive when he chose to go home instead of returning to
take the drug test. The Drug and Alcohol Policy does allow for
last chance agreements. However, this is limited to employees who
have followed the directives and a Medical Review Officer has
reported a drug test that was positive for controlled substances.
Such an occurrence has not happened herein.
The undersigned finds the intent of the parties is clear.
When an employee complies with the procedures of the Drug and
Alcohol Policy and test positive to a controlled substance the
employee shall be given a last chance. To conclude that an
employee who refuses to take a drug test, particularly when the
employee is given a verbal and written directive to do so, and then
allow that employee to enter into a last chance agreement would
render meaningless this provision of the policy.
Therefore, base upon the above and foregoing, and the
testimony, evidence and arguments presented, the undersigned
concludes the City had just cause to discipline the grievant. The
undersigned also finds that as the grievant's refusal also included
an attempt to falsify his drug test and that he failed to comply
with a written directive from his supervisor to take the drug test,
that the City had proper cause to terminate the grievant's
The grievance is denied.
The City of Fond du Lac had proper cause to terminate the
employment of Steve Lazich on August 14, 2000.
Dated at Madison, Wisconsin this 16th day of April, 2001.
Edmond J. Bielarczyk, Jr., Arbitrator