BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION NO. 43
MEYER MATERIAL COMPANY
(Grievance of Daniel Koderca)
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Jonathan M. Conti, on behalf of the Union.
Attorney Louis W. Brydges, Jr., on behalf of the Company.
The above-captioned parties, herein "Union" and "Company", are
signatories to a collective bargaining agreement providing for
final and binding arbitration. Pursuant thereto, hearing was held
in Racine, Wisconsin, on January 23, 2001. There, both parties
agreed that I should retain my jurisdiction if the grievance is
sustained. The hearing was not transcribed and the parties
thereafter filed briefs that were received by March 12, 2001.
Based upon the entire record and arguments of the parties, I
issue the following Award.
Whether the Company had just cause to terminate grievant Daniel
J. Koderca and, if not, what is the appropriate remedy?
The Company operates a redi-mix concrete plant in Kenosha,
Wisconsin. Its drivers therefore drive very large concrete trucks
to various construction sites.
Grievant Koderca, a truck driver, commenced employment in May,
1991, and was terminated on July 27, 2000 (unless otherwise stated,
all dates herein refer to 2000), "due to insubordination and
refusal to take a Drug and Alcohol Test." (Joint Exhibit 13).
Before that date, Koderca had taken and passed about five or six
random drug tests.
Koderca on July 27 reported for work at about 5:45 a.m. to
begin his early morning runs.
Dispatcher Raymond Lohmeyer testified that he did not see
Koderca when he first reported for work that day and that after
Koderca had finished his first run, he told Lohmeyer at about 7:06
a.m. he was sick and "I'm still drunk. I can't do my job."
Lohmeyer telephoned Manager Rich Dembinski to report Koderca's
condition and Dembinski then said that Koderca would have to take
a drug and alcohol test. Lohmeyer said he relayed that message to
Koderca who replied: "I can't believe you are doing this to me."
Koderca agreed to do an alcohol test, but not a drug test, even
though Lohmeyer repeatedly told him he would have to do so.
Lohmeyer telephoned Dembinski several more times who told him that
a refusal to take a drug test would be treated as a positive test,
which he relayed to Koderca. Lohmeyer added that Koderca then
punched out; that Koderca was gone when Union steward Joel Brommer
returned from a run, at which time he told Brommer what had
happened; that Koderca returned to the plant at about 10:30 a.m.,
accompanied by Brommer; and that he then told Koderca it was too
late to be tested.
On cross-examination, Lohmeyer said that Koderca admitted to
being drunk before he smelled alcohol on his breath and before he
noticed that his eyes were red and that he looked sleepy. He
acknowledged that he never told Koderca to get off Company
premises, but he did tell him he would have to punch out if he did
not take a test.
Manager Dembinski testified about federal regulations
governing drug and alcohol use by truck drivers (Joint Exhibit 14),
and said that he had earlier told Union representatives in contract
negotiations that those regulations superseded the parties'
collective bargaining agreement. He also said that if employees
fail to take a drug and alcohol test, it is treated the same as a
failure to pass the test. Dembinski added that he repeatedly spoke
to Lohmeyer on the morning of July 27 about Koderca's refusal to
take a test and that Koderca was guilty of insubordination because
he refused to do what the Company ordered him to do and because he
has wasted about an hour's time in the office. He telephoned union
steward Brommer to relate what was happening and Brommer then
agreed Koderca had to take the test. Dembinski said
that Koderca finally agreed to be tested for alcohol and drugs when
he returned to the plant at about 10:30 a.m. with Brommer and that
Koderca was told it was too late to be tested because he had
earlier left the Company's premises. He also said that Koderca
during a grievance meeting said that he would have failed an
alcohol test if he had taken it.
Dembinski said that he fired Koderca because he had violated
federal regulations and the Company's Drug and Alcohol Abuse Policy
("Policy"), (Joint Exhibit 5). He also testified that Union
Business Agent Terry Biarnesen and former Union Business Agent
Meryl Hansen earlier had told him that the Company's Policy was
fine and that the contract language relating to drug and alcohol
testing has not been changed because the Policy is "federally-mandated and thus supersedes
On cross-examination, Dembinski ackowledged that the Company's
Policy and the federal regulations do not mandate termination if
employees refuse to take a test. He also said that he never
ordered Koderca off Company premises; that no employees have ever
refused to undergo prior testing; and that Koderca had never tested
positive for prior random testing; and that page 37 of the
Company's Policy does not deal with refusing to take a test. He
added that Article 13 of the contract dealing with "Discharge and
Suspension" and what is to happen if an employee either refuses or
fails to pass a drug test, was never deleted because that would
only cause more problems. He also said that Union officials never
negotiated over the Company's Policy.
Grievant Koderca testified that he had been drinking on July
26 up to about midnight; that he reported to work sick on July 27;
that after he had made his first run, he asked Lohmeyer at about
7:18 a.m. for permission to go home and told him he was hung over;
that he was not then drunk and that he never told Lohmeyer he was
drunk; that he agreed to take an alcohol test, but not a drug test
"because I didn't think it was right to take a test"; and that
Lohmeyer told him to either take the test or punch out after
Lohmeyer had telephoned Dembinski.
Koderca then contacted Union steward Brommer who said he would
meet him at the plant. Koderca left the premises to look out for
Brommer and he returned to the plant at about 10:30 a.m.,
accompanied by Brommer, who told him he had to take the alcohol and
drug test. When they met with Lohmeyer to tell him Koderca would
take the test, Lohmeyer - after speaking to Dembinski - told him it
was too late to do so because he had left the plant premises.
Koderca also said that Lohmeyer never told him he would be fired if
he did not take a drug test; that he never before had refused to
take a drug test; and that he in the past had passed the 5-6 random
drug tests he had taken. Koderca denied ever saying at a
subsequent grievance that he was drunk that morning.
On cross-examination, Koderca said that he did not know why
Lohmeyer testified falsely and that he in fact did not reek of beer
on July 27, as alleged by Lohmeyer. He also testified extensively
about his grievance and several written statements he had prepared
which appear contradictory and which acknowledged he was "under the
influence of alcohol." (Joint Exhibits 2-4).
Union Steward Brommer testified that he came back to the yard
at about 8:35 a.m. and that Koderca then was nowhere to be seen;
that when he returned to the yard at about 10:30 a.m., he told
Koderca to take the alcohol and drug test and that Koderca finally
agreed to do so; that Koderca was not drunk at that time and that
he did not smell of alcohol; and that Dembinski told him it was too
late to be tested. On cross-examination, he said he does not know
if Koderca admitted at a grievance meeting that he was drunk. He
also said the term "under the influence" means, "You're still
screwed up" from drinking.
Union Business Agent Biarnesen testified that the Company in
the last contract negotiations never discussed whether the
Company's drug and alcohol Policy superseded the contract. On
cross-examination, he acknowledged, "I looked at it" i.e. the
Company's Policy (Joint Exhibit 5) and that "I did approve it"
because "Every company has work rules."
Upon further questioning, he said that an employee manual
never supersedes the contract; that "I didn't sign off on it"
i.e. the Company's Policy and that "I misspoke" when he earlier
testified to the contrary since "that was already their policy."
He also flatly contradicted Dembinski's claim that the parties had
discussed the Policy in contract negotiations.
Koderca grieved his termination on July 28 (Joint Exhibit 2),
hence leading to the instant proceeding.
POSITIONS OF THE PARTIES
The Union asserts that the Company lacked just cause to
terminate Koderca because it did not have reasonable suspicion to
require him to take a drug and alcohol test; because Koderca was
not insubordinate; and because his refusal to take a test was not
a dischargable offense under the contract's progressive
disciplinary policy. It also maintains that the contract
supersedes the Company's Policy and separate Employee Manual
("Manual"), (Joint Exhibit 7) which in any event do not mandate
discharge for refusing to take a test; that the contract is
"consistent with the Department of Transportation Motor Carrier
Safety Regulations"; and that "Mitigating factors dictate that
discharge was an excessive penalty." As a remedy, the Union asks
for a traditional make-whole remedy that includes Koderca's
reinstatement and backpay.
The Company, in turn, claims that it had just cause to
terminate Koderca because "Preemptive federal regulatory law
prohibited the Company from continuing to employ the grievant in
any safety-sensitive function." Alternatively, the Company argues
that it had the right to terminate him under the contract and under
the terms of its Policy and Manual which have been acquiesced to by
the Union and that it also had just cause to do so.
This case involves the interplay between Article 13 of the
contract (Joint Exhibit 1), entitled "Discharge or Suspension", and
the Company's Policy (Joint Exhibit 5), and Manual (Joint Exhibit
Article 13 of the contract states in pertinent part:
Section 1. The Employer
shall not discharge or suspend any
employee without just cause, but in respect to discharge or
suspension shall give at least two (2) warning notices of the
complaint against such employee to the employee, in writing, and a
copy of the same to the Union and job steward affected, provided,
however, that if the Employer considers the conduct of the employee
to be so serious that repetition of it should lead to discharge,
the Employer may state on the warning notice that it constitutes a
first final notice, subjecting the employee to discharge or
suspension upon its repetition, provided further, however, that if
the Union disagrees that such misconduct warrants a first final
notice, it may take the matter up under the grievance procedure.
The Employer shall notify the authorized
representative of the
Union of his intention to issue a first final notice, prior to
issuing the same. The disposition of each first final warning
notice, whether it results from the failure of the Union to grieve,
agreement of the parties, decision of the Joint Grievance
Committee, or an award of the impartial arbitrator, shall
constitute neither a precedent nor evidence in any other dispute
relating to the issuance of the first final notice. Neither party
shall submit such disposition or such a dispute to, nor testify
concerning it, before the impartial arbitrator in an arbitration
involving the issuance of another first final notice. The Union
shall also have the right to take up the issuance of any written
notice under the grievance procedure.
2. Notwithstanding any other provision of this Article
to the contrary, no warning notice need be given to an employee
before he is discharged, if the cause of such discharge is theft or
recklessness resulting in a serous accident while on duty, or the
carrying of unauthorized passengers while on the job. The employee
shall submit to a drug or alcohol test when requested to do so by
the Employer. Failure to do so shall be interpreted as an
admission of drunkenness, and subject to disciplinary action as
follows: First (1st) offense-five (5) working days off without
pay, with the employee receiving a written warning notice. Second
(2nd) offense Discharge. Pay for the day will be determined by
the results of the test. The first warning notice in case of
tardiness shall be only for chronic tardiness, and only after the
affected employee and the Employer meet to review the need for the
warning notice. The steward shall be notified of any action of
. . .
Under Section 2 of this contract language, only a five-day
suspension can be imposed for the first time offense of either
refusing to take a drug or alcohol test or not passing one.
Period. Thus, the contract precludes the Company from terminating
an employee for the first time that he/she either fails or refuses
to take a drug or alcohol test. If this contract language
controls, Koderca's termination must be overturned because July 27
marked the first time he refused to take a drug test, thereby
subjecting him to the maximum five-day suspension.
Section 10 of the Company's Policy, which Koderca personally
received, states in pertinent part:
. . .
A violation of this policy will result in
Our company will advise the driver who
violated this policy of
the resources available in evaluating and resolving problems
associated with the misuse of drugs and/or alcohol, even though the
driver is terminated.
If our company so chooses, prior to being
eligible for rehire,
a driver who received a "positive" test result shall go to a SAP
for an evaluation who shall set up any assistance needed. When the
driver has complied with all of the recommendations of the SAP, the
driver shall request from the SAP a letter stating whether the
driver had a problem, if any, and that the driver has complied or
is continuing to comply with the SAP's recommendations, if any. If
the SAP did determine that the driver had a problem, the SAP shall
also state in the letter the number of follow-up tests that will
need to be administered after the driver returns to duty.
. . .
Elsewhere, the Policy on page 10 states: "Refusal to submit to a
reasonable cause test shall be considered a positive test."
The Company's Manual, which Koderca also personally received,
provides in pertinent part on page 15:
Medical screens to determine the presence
of drugs or alcohol
in the body are used in the administration of this policy. These
screening methods are used in the following circumstances:
a) with the pre-employment
b) with any re-employment
physical exam following a layoff or
other absence of 1 year or more;
c) with investigation of any
accident or incident involving
injury, lost work time, major property loss as determined by
management judgment, or in accordance with DOT requirements.
d) in the event there is
reasonable suspicion that an employee is
possessing, using, or reporting to work under the influence of
illegal drugs or alcoholic beverages.
e) on a random basis in
accordance with DOT requirements.
Employees who test negative will be
returned to work and paid
for any lost time.
An employee may be suspended from work
without pay pending
evaluation of the results of a drug and alcohol test. A positive
test result showing presence of drugs or alcohol in the body may be
grounds for dismissal. In the event an employee refuses to submit
to a physical exam and/or drug and alcohol screening test when
directed, such action shall be viewed as insubordination.
Normally, a collective bargaining agreement trumps employer-promulgated work
rules. See How Arbitration Works, Elkouri and
Elkouri (BNA, 5th Ed., 1997), at 511. See too Westinghouse
Electric Corp., 48 LA 131 (Hebert, 1965); Centel Business Systems,
95 LA 472 (Allen, 1990); Here, though, the Company asserts that
the reverse is true because the
Union in contract negotiations expressly agreed to the Company's
Policy allowing for termination for a first-time offense. Manager
Dembinski thus testified that Union Business Agent Biarnesen and
former Union Business Agent Hansen (who did not testify), both told
him that the Company's Policy was fine. Dembinski also said that
the contract has not been changed because the Policy is "federally-mandated, and thus
supercedes the contract."
For his part, Biarnesen flatly denied that the Company's
Policy was discussed in the last contract negotiations. He added,
however, that he did look at it and that "I did approve it" because
"Every company has work rules." He later insisted that "I didn't
sign off on it" and said he had "misspoke" when he earlier said
that he had agreed to the Company's Policy.
It is difficult to resolve this credibility clash between
Dembinski and Biarnesen because there is no objective way of
determining what, in fact, occurred over this issue in the parties'
past contract negotiations and because Biarnesen contradicted part
of his own testimony. Given this uncertainty, there is
insufficient proof to overcome the clear and unequivocal language
set forth in Article 13, Section 2, of the contract which provides
that first-time offenders who refuse to be tested cannot be
suspended for more than five (5) days. As a result, the language
of Article 13, Section 2, must be applied here because: "If the
language of an agreement is clear and unequivocal, an arbitrator
generally will not give it meaning other than that expressed." How
Arbitration Works, supra, at 482. See too, Clean Coverall
Co., 47 LA 272 (Whitney, 1966); City of Tipp City, 88 LA 315
If the Company at any time on July 27 told Koderca that he
would be fired if he did not immediately consent to a drug and
alcohol test, its case would be considerably strengthened because
Koderca then would have been given express notice that his job was
in jeopardy. However, no such warning was given.
Given Article 13, Section 2's, clear prohibition on
terminating first-time offenders who refuse to be tested, Koderca
on July 27 was entitled to receive such a warning so that he could
then determine whether he wanted to continue his obdurate behavior.
Since no such warning was given, and since a contractual just cause
standard requires that employees be forewarned over the
consequences of their behavior, the Company lacked just cause under
the contract to terminate Koderca. See How Arbitration Works,
supra, pp. 930-931. See also Cincinnati Metropolitan Housing
Authority, 109 LA 427, 433 (1997), wherein Arbitrator Stanley H.
Sergent ruled that a discharge for refusing to take a drug test had
to be overturned in part because "the grievant's supervisor did not
inform him unequivocally that he would be discharged if he refused
to take the test. . ."
That, though, does not end this matter since the Company
asserts that federal law supercedes the contract and that Koderca's
termination was mandated under federal law. On this issue, Section
382 of the Department of Transportation Motor Carrier Safety
Regulations ("Regulations"), (Joint Exhibit 14), expressly prohibit
commercial drivers from using alcohol and/or drugs and/or from
being under their influence and they also provide for detailed
testing procedures and the immediate removal from work of any
drivers who either refuse to take such a test or who fail to pass
it. However, there is nothing in the Regulations stating that an
employee who either fails to take a test or who fails the test once
it has been given must be terminated. To the contrary, Section
382.501 of the Regulations, entitled "Subpart E- Consequences for
Drivers Engaging In Substance Use Related Conduct", provides for
various measures, none of which mandate termination.
Moreover, the Company's position must be rejected because
Koderca never tried to work after he told Lohmeyer he was ill or
drunk (depending on whose version is accepted). For, as the Union
correctly points out,
"Had Koderca not asked to go home sick and revealed that he was
hung over, the Company would never have had reason to even suspect
that Koderca was possibly under the influence."
Sustaining Koderca's discharge therefore would have the perverse
effect of discouraging other drivers from reporting that they are
too ill or even too drunk to work. Given the need to keep unfit
drivers off the road, the Company's position here, if sustained,
would make it all the more difficult for impaired drivers to come
forward to report their unfit condition for fear that they, too,
might be terminated under the Company's view of the law.
The Company relies on Sections 382.103, 382.105 and 382.107 of
the Regulations in support of its claim: "it is undisputable that
the Company could not continue to employ the Grievant in any
safety-sensitive position following his refusal to submit to a drug
and alcohol test."
That is not true. What is true is that the Company on that
day i.e. July 27 could not let Koderca drive a truck because of
his condition and his initial refusal to be tested. Yet, since
Koderca himself did not want to drive that day after he had
finished his first run and after he had spoken to Lohmeyer, there
was no danger whatsoever that Koderca would continue to drive under
his condition. Hence, the overriding public policy goal of the
Regulations to get impaired drivers off the road was met when
Koderca came forward to say he was too ill to work.
The Company also asserts that Section 382.211 of the
Regulations prohibits "an employer from continuing to permit a
driver who refuses to submit to such tests from performing or
continue to perform any safety-sensitive function." Again, that is
true for the events of that day. That does not necessarily mean,
however, that such a driver must be terminated.
The Company shifts gears somewhat by claiming that it was
prohibited from employing Koderca "in any safety-sensitive
function, at least not until he has completed the evaluation and
treatment prescribed by Section 382.605" of the Regulations,
entitled "Referral, Evaluation and Treatment."
But, the Company did not discharge Koderca over his failure to
obtain such an evaluation and treatment. Instead, the Company
fired him for "insubordination and refusal to take a Drug and
Alcohol Test" (Joint Exhibit 13).
Secondly, the Company itself refused to let Koderca take a
drug test after he finally agreed to do so at about 10:30 a.m. when
he returned to the plant with union steward Brommer. Hence, we do
not know whether Koderca would have tested positive or negative
and/or whether he would have needed treatment and an evaluation.
(We do know that he passed all prior drug tests in his nearly nine
years of employment). Since that uncertainty has been created by
the Company, it cannot now turn around and claim that it either was
justified in terminating Koderca because he was never evaluated or
treated or that he now cannot be reinstated on that ground.
Thirdly, Section 382.605(c) (1) states: "Before a driver
returns to duty. . ." he/she "shall undergo a return-to-duty
alcohol test. . ." if the problem involved alcohol or "a controlled
substances test with a verified negative result if the conduct
involved a controlled substance." Given the Company's refusal to
let Koderca take a drug and alcohol test at 10:30 a.m. and the
record's failure to establish whether Koderca would have passed
such a test, it is unclear whether these provisions are applicable.
However, this part of the Regulations in any event can be met by
making Koderca's return to work contingent on passing an alcohol
and drug test.
Section 382.605(b) and (c)(2) provide for the evaluation by a
substance abuse professional who may provide a rehabilitation
program. Again, that can be made part of any return to work order.
The Company also asserts that certain arbitration cases hold
that a grievant's termination for refusing to be tested under an
employer's drug and alcohol policy "is a matter of contract
interpretation, rather than whether the Company had "just cause"
and that a union bears the burden of proof in such cases. See
Mueller Company and PACE International
Union, 1999 WL 1491632 (O'Grady, 1999); National Gypsum Co., 112 LA
248 (Nicholas, 1999). The Company also claims that "Arbitrators
have applied this concept in a variety of circumstances", as it
cites Buick Youngstown GMC, 1997 WL75396 (1997); Westin Hotel, 90
LA 1194 (Dobry, 1988); ITT General Controls, 76 LA 1258 (Bickner,
1981); U.S. Corrugated Fibre Box Co., 41 LA 804 (Shister, 1963).
Without going into the details of these cases, it suffices to
relate that none of them contained the kind of clear language found
in Article 13, Section 2, of the contract which expressly provides
for a one-week suspension for those employees who either refuse to
take a drug and alcohol test or who fail it.
Moreover, irregardless of what was decided in those cases, it
is well established that employers bear the burden of proof in
discipline cases. See The Common Law of the
Workplace: The Views
of Arbitrators, St. Antoine, Ed. (BNA, 1998), at 177, which points
. . .
ss. 6.9 Burden of Proof
(1) The employer bears
the burden of proving just cause for
discipline. That includes proof that the level of discipline was
appropriate. The employer must also prove any alleged aggravating
(2) The employee bears
the burden of proving any affirmative
defenses (such as condonation by the employer, provocation by other
employees, or disparate treatment) and any mitigating factors.
a. Allocation of the Burden of Proof.
bringing agrievance, like one bringing a lawsuit, bears the burden
of proving the claims. One exception to that rule invovles the
imposition of discipline. Arbitrators uniformly hold that
employers bear the burden of proving just cause for discipline.
The reasons for that distinction are lost in the mists of history.
Nevertheless, parties and arbitrators alike accept that allocation
of the burden of proof. Because "just cause" includes a
requirement that the discipline be proportional and progressive
(see ss. 6.7, above), part of the employer's burden of proof is to
show that the discipline imposed satisfies those tests.
. . .
See too, How Arbitration Works, supra, at p.
905, which states:
"Because of the seriousness of this penalty, the burden
generally is held to be on the employer to prove guilt or
wrongdoing, and probably always so where the agreement requires
'just cause' for discharge." (Footnote citations omitted).
See also Evidence In Arbitration,
Hill and Sinicropi (BNA, 1981), p. 13,
"As a general practice, however, in disciplinary cases the
burden is on management both to proceed first with its evidence and
to prove employee guilt or wrongdoing" (Footnote citations
Since Article 13, Section 1, of the contract here contains a just
cause requirement, the Company must meet a similar burden of proof
Based upon the above, I conclude that the Company under
Article 13, Sections 1 and 2, had just cause to suspend Koderca for
five days because of his refusal to immediately take a drug and
alcohol test. It did not, however, have just cause to terminate
him since Article 13, Section 2, only provides for a five-day
suspension for such an offense.
As a remedy to rectify this contractual breach, the Company
shall convert Koderca's termination to an unpaid five-day
suspension and it shall make him whole by immediately offering to
reinstate him to his prior position. Excluding the time of his
unpaid five-day suspension, the Company also shall pay him all
wages and benefits, including seniority, that he lost from the time
of his termination to the time of his reinstatement, minus any
monies that he received or could have earned during that period.
Koderca's return to work is conditioned on passing a drug and
alcohol test. If Koderca passes such a test, he shall be
reinstated, after which time he must be evaluated by a substance
abuse professional. In order to resolve any questions arising over
application of this Award, I shall retain my jurisdiction for at
least sixty (60) days.
In light of the above, it is my
1. That while the Company had just cause to suspend grievant
Daniel Koderca for five days, it did not have just cause to
2. That the Company shall make grievant Daniel Koderca whole
by taking the remedial action stated above.
3. That to resolve any questions arising over application of
this Award, I shall retain my jurisdiction for at least sixty (60)
Dated at Madison, Wisconsin this 26th day of April, 2001.
Amedeo Greco, Arbitrator