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Case #14
Reply RESPONSE in (IRAC) ISSUE, RULE, ANALYSIS, and a CONCLUSION Question: Is the arbitrator’s decision to reinstate a driver who twice tested positive for drugs arbitrary and capricious? Explain.
Eastern Associated Coal Corp. and United Mine Workers of America are parties to a collective-bargaining agreement with arbitration provisions. The agreement specifies that, in arbitration, in order to discharge an employee, Eastern must prove it has “just cause.” Otherwise the arbitrator will order the employee reinstated. The arbitrator’s decision is final. James Smith worked for Eastern as a member of a road crew, a job that required him to drive heavy truck-like vehicles on public highways. As a truck driver, Smith was subject to Department of Transportation (“DOT”) regulations requiring random drug testing of workers engaged in “safety-sensitive” tasks.
In March 1996, Smith tested positive for marijuana. Eastern sought to discharge Smith. The union went to arbitration, and the arbitrator concluded that Smith’s positive drug test did not amount to “just cause” for discharge. Instead, the arbitrator ordered Smith’s reinstatement, provided that Smith (1) accept a suspension of 30 days without pay; (2) participate in a substance-abuse program; and (3) undergo drug tests at the discretion of Eastern (or an approved substance-abuse professional) for the next five years. Between April 1996 and January 1997, Smith passed four random drug tests, but in July 1997 he again tested positive for marijuana. Eastern again sought to discharge Smith. The union again went to arbitration, and the arbitrator again concluded that Smith’s use of marijuana did not amount to “just cause” for discharge, in light of two mitigating circumstances. First, Smith had been a good employee for 17 years, and second, Smith had made a credible and “very personal appeal under oath concerning a personal family problem which caused this one time lapse in drug usage.” the arbitrator ordered Smith’s reinstatement provided that Smith (1) accept a new suspension without pay, this time for slightly more than three months; (2) reimburse Eastern and the union for the costs of both arbitration proceedings; (3) continue to participate in a substance-abuse program; (4) continue to undergo random drug testing; and (5) provide Eastern with a signed, undated letter of resignation, to take effect if Smith again tested positive within the next five years.
Expert Answer
Smith has tested positive for drug abuse two times and the appeal of the union that in light of two mitigating circumstances. (1). Smith had been a good employee for 17 years, and (2). Smith had made a credible and “very personal appeal under oath concerning a personal family problem which caused this one time lapse in drug usage are not convincing, are not holding any water and in fact are confirming that he had broken his own oath and that in some similar circumstances he can once again take the drugs.
I am surprised at the arbitrator’s order to reinstate Smith provided that Smith (1) Accept a new suspension without pay, this time for slightly more than three months; (2) Reimburse Eastern and the union for the costs of both arbitration proceedings; (3) Continue to participate in a substance-abuse program; (4) Continue to undergo random drug testing; and (5) Provide Eastern with a signed, undated letter of resignation, to take effect if Smith again tested positive within the next five years.
The arbitrator nowhere has talked about the seriousness of the accidents that Smith can cause and can lead to fatalities and serious injuries to self and others.
To me the arbitrator’s decision should not be accepted by Eastern and should go for a revision appeal.
At best there can be compromise that Smith be given a job other than driving like an office attendant, for some period and during this period he shall be monitored under a drug abuse program and some skill enhancement program so that he develops some skill for his further employment.
His reinstatement as a driver should be barred and his driving license be impounded.
