Reference no: EM132803671

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Case 1

A LOADED HANDGUN AND SUSPECTED COCAINE IN HER PURSE

DISCUSSION

It is clear that failure to conform to Drug Enforcement Administration rules on the part of the management could indeed, as the Company has argued, cause a severe economic hardship to the employer in the form of loss of its large controlled substance business. And it is no less obvious, from the straightforward wording of Section 1301.92 of the DEA rules, that the employer bears the immediate responsibility for taking independent action regarding the continued employment of employees who have engaged in controlled substance wrongdoing. Indeed, the employer is required by this provision to assess specifically "the seriousness of the employee's violation, the position of responsibility held by the employee, past record of employment, etc." in determining the appropriate action on its part regarding the continued employment.

The Company is also on solid ground, in the arbitrator's opinion, in pointing out that the language of 1301.92 in no way limits the management responsibility to illicit activities taking place on the premises: independent Company action is mandated by 1301.92 no matter where the controlled substance wrongdoing has been engaged in.

Just as patently, however, such a governmental stricture is hardly tantamount to a command that discharge must necessarily result from the Company's investigation: suspension, transfer, "or . . . other action" are also explicit possibilities envisioned by the DEA, to be applied as the specific circumstances justify.

Moreover, as both of the very competent and experienced representatives in this arbitration are well aware, management's right to discharge employees for conduct away from the plant pivots strictly on whether or not the improper conduct can be said to negatively affect plant operations in a reasonably discernible way. For the arbitrator to disregard this key principle, one which is so deeply embedded among arbitrators that no citations at all are deemed necessary, would constitute a gross dereliction of duty on his part.

Thus, for Ms. Marino's discharge to be sustained as having been proper, it would have to be established not only that, in the first place, her violation was sufficiently serious and unmitigated by offsetting factors as to justify the termination had it been committed in the plant but also that, in the second place, her outside activity adversely affected the Company's business in some reasonably observable fashion.

The first of these two conditions has been met. Carrying both a loaded, apparently unlicensed, firearm and cocaine in the plant would under any imaginable circumstances be an extremely serious offense, in a class with such heinous other offenses as striking a supervisor or extorting extra money from the employer in return for the performance of a service that is contractually required of the worker. It would be action that would warrant summary discharge. Neither Marino's 3-1/2 years of seniority, her unquestionably good work record nor any other factor present here can remotely be said to mitigate this conclusion and there is, of course, no question in this case of insufficient proof as the grievant admitted her guilt.

The second of the two conditions, however, has not been satisfied in this case. No convincing showing has been made that Ms. Marino's wrongful conduct had any negative effect at all on the business-as regards production, workforce morale, community image or any other of the Company's legitimate interests. And despite the Company's argument that if it had not discharged Marino it would have jeopardized its continuing controlled substance business, such a contention-in the absence of any hard evidence at all to support it-must be treated strictly as pure speculation.

The Company, in the arbitrator's opinion, fully satisfied its obligation to the DEA by assessing the grievant's illicit conduct in the light of such relevant factors specified in Section 1301.92 as "the seriousness of the employee's violation, the position of responsibility held by the employee, past record of employment, etc." before determining what action to take vis-à-vis

Ms. Marino. As stated above, an objective reading of the Section must lead to the conclusion that it was obligated to do no more, for 1301.92 allows the Company to come to any decision that it wants-based upon these factors-regarding what action, if any, it should take regarding the erring employee. The assessment is mandatory for the Company under the DEA rules, but whether the employer decides, in the precise words of 1301.92 "to suspend, transfer, terminate or take other action against the employee" is very much in its own hands, so long as the conclusion stems from the assessment.

Finally, against the Company's assertion that the grievant would have been terminated anyhow, for unexcused absenteeism after two months in jail (thereby harming the employer to the extent that it would need to procure a replacement for Marino), must stand the Union's testimony that it had assurance that she would have been out on work release in less than two months had the employer so requested, and Marino was in any event scheduled to be released (as above) on May 11, 2007, or after less than two months of imprisonment.

Given these considerations, the arbitrator would find it hard to grant controlling powers to the Company's long-standing and apparently well communicated Security and Drug Abuse policy, with its unequivocal statement that the Company "will discharge any employee illegally involved with the possession, use, sale or diversion of drugs" even if the employer had faithfully implemented such a promise. But there has apparently been no such implementation. Only the discharge of

Mr. Ramos was cited by either party; and his drug possession was, as the Union has emphasized, on Company property. Against the Ramos incident remains the unanswered Union argument that the Company's Alcohol and Drug Treatment Center Plan in providing "up to two confinements per lifetime" could not possibly have intended discharge to be the universal penalty for drug possession because the confinement language would clearly be a non sequitur. Indeed, whether or not it should have known given the requirements of confidentiality, the Company rather obviously did know of at least one employee who had presumably possessed and used drugs and it did not invoke discharge here: as Company Exhibit 6 firmly establishes, the employer was informed of Mary Marino's treatment in the St. Joseph Hospital Substance Abuse Service in December, 2005.

With Ms. Marino's September 22, 2006 off-the-premises conduct not having been shown to have any reasonably discernible adverse impact upon the business and with no other compelling arguments advanced by the Company as evidence that the grievant's discharge was for proper cause, it must be concluded that it was not. She is consequently to be reinstated and made whole for all monies and seniority lost from the date of her termination to the date of her incarceration.