Zero tolerance, a drug test and just cause

By John H Curley on December 1, 2020

The Eleventh Circuit reversed the decision of a District Court and upheld an arbitration award (here) reinstating an employee terminated pursuant to the Company’s Zero Tolerance policy following a positive drug test. Georgia-Pacific Consumer Operations LLC, v. United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union, Local 9-0952.

The cba in issue provided:

The Company will establish a “zero tolerance” random drug testing program for all Company employees at the Naheola facility.

The Company’s Corporate Policy relating to random drug screening stated:

All persons who test positive for any substances listed in Section 1 (Introduction) will be terminated, unless otherwise prohibited by a collective bargaining agreement or applicable law. All terminations must be coordinated by the location/division human resources manager.

Grievant was selected for a random drug test. The test showed a positive result for codeine When informed of the result, grievant explained that he may have mistakenly taken some of his wife’s prescription cough syrup instead of his own, non prescription, one. Because grievant could not produce a prescription in his own name for cough medicine containing codeine his employment was terminated under the Company’s Zero Tolerance Policy.

The termination was grieved and submitted to Arbitrator James Odom for resolution. In his award, Arbitrator Odom described the dispute:

Does the Contract require the Company to demonstrate just cause in order to terminate an employee who has tested positive for opiates during a random drug screen?

The Company argued that under its Zero Tolerance Policy the positive test result itself established the required evidence of just cause. The Union maintained that any discipline administered under the contract was required to meet the just cause standard, which required an evaluation of all the circumstances.

Arbitrator Odom concluded:

Obviously, maintaining a safe, drug-free work place is a necessary and positive goal of the Company. And I understand the theory that a well-advertised, strictly interpreted zero tolerance policy requiring every employee who tests positive on a random drug screen be immediately discharged could have a greater tendency to reduce the presence of drugs in a workplace than a practice that is less forceful. But is an inflexible “test positive and you are terminated” rule enforceable? More to the point, under the parties Contract, is such a policy enforceable with regard to the grievant and given his circumstances?

Section 2 of Article 8, Rights of Management of the Contract limits Management’s right to discipline and discharge employees to just cause. As a labor arbitrator, I am unable to interpret as reasonable or just any decision to terminate that purposefully ignores the circumstances and causes surrounding the violation

Applying that standard, Arbitrator Odom determined that there was not just cause for the termination. He found grievant’s use of his wife’s cough medicine was not intentional, and there was no evidence that he was under the influence of drugs while at work.

While finding termination too severe, Arbitrator Odom did find that grievant had made “the error of mistake” and was responsible for the negative results. He reduced the termination to a ninety day suspension and ordered grievant’s reinstatement.

The Company sought to vacate the award as in excess of the Arbitrator’s authority in ignoring what it believed to be the contractual requirement that a positive drug result in termination. The Company’s complaint can be found here. The Magistrate, in a decision adopted by the District Court (here), agreed with the Company and vacated the Award. The Magistrate concluded that the Arbitrator’s finding that grievant had engaged in conduct that was defined in the cba as an offense subjecting him to discharge constituted an “implicit finding” of just cause which the Arbitrator was not free to ignore.

On the Union’s appeal, the Eleventh Circuit overturned that decision. The Court found that the Arbitrator was within his authority in resolving the interplay between the just cause requirement of the cba and the language relating to the Company’s random drug test program:

Turning to Georgia-Pacific’s position, [the arbitrator] distilled it as “[Irvin’s] positive test is the required evidence of just cause.” Then, the arbitrator characterized the part of the contract concerning Georgia-Pacific’s the random drug-testing program as a “commitment” and asked whether Georgia-Pacific’s interpretation of the policy made to fulfil that commitment was “under the Parties’ contract, . . . enforceable with regard to [Irvin] and . . . his circumstances?”
The arbitrator’s answer was no. Whether that’s right or wrong doesn’t matter for our purposes—all that matters is that the arbitrator’s answer flowed from his interpretation of the contract. The arbitrator emphasized that another provision of the contract limited Georgia-Pacific’s power “to discipline and discharge employees to just cause.” He then explained why he couldn’t conclude that “just cause” existed under these circumstances. If his efforts had simply been free-wheeling policymaking, then vacatur would have been justified. But they weren’t, and so it wasn’t.

The Court rejected the Company’s, and the District court’s reliance on earlier cases finding an Arbitrator exceeded his authority by ignoring “express (and apparently complete) terms of a drug testing policy spelling out each provision in some detail.” It found the language in this case “much less specific, as one might expect for an ‘element’ of a plan that the parties agree will be implemented later.” Noting other detailed provisions of the cba relating to drug use and drug testing, it observed that the parties knew how to bargain clear, specific language that synthesized drug testing plans with the just cause provision, the Court found their failure to do so here left it within the Arbitrator’s authority to resolve that relationship.