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Amalgamated Transit Union
116 LA (BNA) 1184
FMCS Case No. 010135/07825-6
December 16, 2001
* Selected by parties through procedures of the Federal Mediation and Conciliation Service
On February 20, 2000 the Amalgamated Transit Union, Local 878, the "Union", on behalf of S__ filed a grievance with the City of Evansville in which it claimed that the suspension of the Grievant "and the pending request to discharge [the Grievant] are incorrect and violate the contract". The grievance, in relevant part, went on to state that the City "has no basis to discharge the Grievant for just cause". The Union also filed "a notice of the second (2nd) step grievance" on March 2, 2001 with the City. Except for the phrase "notice of the second (2nd) step grievance" in the March 2, 2001 document, it contains the same language as the earlier grievance filed with the City on February 20, 2001. After the City denied the grievance, it was eventually submitted to arbitration under the Labor Agreement between the parties.
The Grievant was discharged from his job as a bus driver for the Metropolitan Evansville Transit System "METS", effective February 22, 2001. The discharge arises from events which occurred on March 21, 2000.
The Grievant was arrested with two (2) other persons when police officers discovered the operation of a methamphetamine laboratory, or "meth lab" in his garage at 3211 Forest Avenue in Evansville, Indiana. Police officers were dispatched in response to an anonymous telephone call of a peculiar odor which the caller believed came from 3211 Forest Avenue.
Officer Michael Jolly of the Evansville Police Department who was working a second shift, met another officer at 3211 Forest Avenue shortly after 8:00 p.m. The Grievant's home was located in what Officer Jolly described as an "older" residential area with private homes that are situated close to each other. Upon arriving at 3211 Forest Avenue, the officers believed that the unusual odor was coming from a detached garage on the property. They proceeded to an alley immediately north of the garage where they detected a "sweet, pungent odor" coming from the garage. Based upon his training and experience, Officer Jolly suspected the operation of a "meth lab" in the garage. They observed the overhead garage door was raised approximately 8 to 10 inches. Inside the garage the officers heard voices. While peering through the window of the garage they observed "more than one (1) person". Although it was late March, and about 40 to 50 degrees Fahrenheit outside, a dual motor fan in the garage was constantly running.
Officer Jolly testified that he and the other officer observed a person later identified as the Grievant leave the garage and enter the residence at 3211 Forest Avenue. Officer Jolly was able to see the Grievant obtain "something" from the kitchen which he placed in the pocket of his pants.
Shortly thereafter, the Grievant left the house and Officer Jolly stopped him, and asked him what was going on. Upon seeing Officer Jolly, the Grievant was "shocked" and did not answer Officer Jolly's question. He had his hand in his pants pocket and Officer Jolly asked him to take his hand out of his pocket and he did so. The Grievant then agreed to Officer Jolly's request to search him. Officer Jolly found 3 or 4 clean sandwich bags in the Grievant's pants pocket. When the Grievant was asked who else was in the garage, he replied "nobody", according to Officer Jolly.
In light of their prior experience and knowledge of the dangers of ether which is highly flammable and knowing that there were persons in the garage where there was the odor of ether, the officers decided to enter the garage and remove the persons for their own safety.
Upon entering the garage, the officers observed a person later identified as Lucina Steiner using a hair dryer to clean a bowl. Klamer was standing by a workbench. Both Steiner and Klamer were asked to step outside and they complied with the request by the officers.
While the officers were in the garage, they observed a "liquid fire", several bottles that had plastic or rubber tubing which came out of the top of the bottles, a hot plate for cooking and they smelled the presence of ether-all items associated with the manufacture of methamphetamine.
The garage was then "secured" which meant that no person could enter the garage because of the risk of fire and explosion. Officer Jolly read the Grievant the "Miranda" warning, and at his request, the Grievant signed a form providing for the officers to search the garage. During a conversation with the Grievant, Officer Jolly said that he told him that there was "methamphetamine in the tool box-" he also told Officer Jolly that "there was some ether in there * *."
The Fire Department and narcotics detectives had already been contacted by the officers. When the firefighters and detectives arrived on the scene, they assisted in the investigation. The police investigation established the existence of a "meth lab" in the garage located on the Grievant's property, which contained paraphernalia associated with the manufacture of methamphetamine along with a quantity of marijuana. Based on the evidence obtained, the Grievant was arrested and charged with dealing a Schedule II controlled substance, criminal recklessness and dealing marijuana, all of which are felonies under Indiana law.
On March 22, 2000, the day after the Grievant was arrested, an unidentified female called METS and reported that the Grievant would not be at work due to illness. METS Director John Connell testified that it was only after reading a "large article in the Evansville Press that he learned about the arrest of the Grievant, and the meth lab" that was found on his property.
Upon learning of the Grievant's arrest, Connell contacted Mike Duckworth, Executive Director of Transportation and Services who in turn notified Ron Johnson, the former Executive Director of Administrative Services. A meeting was then held on March 23, 2000 with the Grievant, and the representatives of the Union and City. Connell testified that at the meeting the Grievant would not discuss the details with respect to his arrest on March 21, 2000. As a result, it was decided by Connell, Duckworth and Johnson to suspend the Grievant without pay pending an independent investigation by the City into the criminal charges that were filed against him.
Some ten (10) months later, in January, 2001, the Grievant's attorney apparently moved to suppress evidence in the criminal court. As a result of the hearing the Judge decided that there was not sufficient probable cause to search the Grievant's premises. The evidence found in the Grievant's garage was determined by the Court to be inadmissible. The charges were dismissed against the Grievant but the criminal prosecution against the two (2) persons who were present in the garage (Steiner and Klamer) on March 21, 2000 continued. Officer Jolly said that the testimony which he provided at the arbitration hearing was the same testimony he provided at the suppression of evidence hearing in January, 2001.
A meeting was held on February 9, 2001 between Executive Director of Administrative Services George Fithian and the Grievant. He told the Grievant that he had obtained information from the police, including a "probable cause affidavit" which establishes the basis for the crimes committed by the Grievant, in connection with the "meth lab"in his garage. Fithian said that he wanted to hear the Grievant's "side of the story". It is undisputed as Fithian stated, that the Grievant was "reluctant to talk to him" and said he "was not guilty".
By letter dated February 22, 2001 to the Grievant, Fithian confirmed that they met on February 9, 2001. He also indicated that when he asked the Grievant for information the City should consider when making a decision about his employment, the Grievant responded that he was not guilty and declined to offer his "side of the story".
Furthermore, Fithian concluded his letter by stating the following:
"As a result of the Employer's investigation into this matter, you are hereby terminated from employment for your illegal off-the-job misconduct of March 21, 2000. The Employer's responsibility to the public would not be served by allowing your employment to continue. Your discharge is effective as of the date of this letter."
These events led to the filing of the instant grievance.
The City raises a threshold issue which must be addressed before the merits of the dispute can be considered. The City claims that the grievance with respect to the suspension of the Grievant was not timely filed under Article IV, Section 4 of the Agreement and is therefore not arbitrable.
Article 4, Section 4 (a) provides as follows:
"SECTION 4: Time Limit For Filing:
No grievance shall be entertained or processed unless it is submitted:
a) Within ten (10) business days after the employee concerned has become aware or should have become aware of the occurrence of the event giving rise to the alleged grievance; except
b) If a grievance is not presented within the time limits set forth above, it should be considered waived * *."
Section 4 (b) in relevant part, provides that "[I]f a grievance is not presented within the time limits set forth above, it shall be considered waived". It is undisputed that the Grievant's suspension without pay was effective March 23, 2000. The grievance was filed on February 20, 2001, some eleven (11) months after the Grievant was suspended. Accordingly, the grievance protesting the suspension of the Grievant was waived as set forth in Article 4, Section 4(b) of the Agreement.
However, the grievance with respect to the discharge of the Grievant is a completely different matter. In a letter to the Grievant, dated March 23, 2000, both Johnson and Duckworth stated that the Grievant was "placed on investigative suspension, without pay, while the City investigates the felonious charge levied against you". The suspension of the Grievant continued until February 22, 2001, when Fithian stated in a letter to the Grievant that as a result of the "Employer's investigation * *, you are hereby terminated from employment for your illegal off-the-job misconduct of March 21, 2000". In that same letter, Fithian set forth that the Grievant's discharge was effective as of the date of this letter". (February 22, 2001).
Both the grievance filed on February 20, 2001 and the "notice of the second (2nd) step grievance filed on March 2, 2001 protest not only the suspension of the Grievant, but the "pending request to discharge" him. The discharge of the Grievant did not become effective until February 22, 2001. Accordingly, the grievance with respect to discharge of the Grievant was timely filed in accordance with Article IV, Section 4(a) of the Agreement.
Having established that the grievance with respect to the Grievant's discharge is arbitrable, I turn to the merits of the dispute. At the outset of this discussion, it should be noted that although he was present at the arbitration hearing, the Grievant failed to present testimony at the hearing. As stated in Elkouri and Elkouri, How Arbitration Works, Fifth Edition (BNA, 1997):
"It is not unexpected that the failure of a grievant to appear and testify at a hearing of the grievance has in some cases been one of the factors leading to the arbitrator's conclusion that the grievance lacked merit" at page 432. See, e.g., Guerin Special Motor Freight, Inc., 48 LA 1036, 1038 (Hardy, 1997) where grievant was present but did not testify.
However, the better reasoned view with respect to evaluating the evidence in light of the failure of a grievant to provide testimony was stated by Arbitrator McCoy in Southern Bell Telephone & Telegraph Co., 25 LA 270 (1955):
"I think that the inferences justifiable from such refusal cannot be extended to an inference of guilt of the very act with which the man is charged. . . . In other words, I think that the inferences to be drawn from a refusal to testify are limited to evidentiary facts, and do not extend to the ultimate conclusion of guilt or innocence which must be drawn from evidentiary facts; they cannot supply facts of which there is no evidence. Findings of fact must be based on credible evidence. The failure to deny or refute incredible evidence does not change the character of that evidence from incredible or credible". At page 273.
Thus, the failure of a grievant to testify cannot lead to an inference of guilt when there has been no evidence or insufficient evidence from which to draw such an inference. As stated in Southern Bell Telephone & Telegraph: "The failure to deny or refute incredible evidence does not change the character of that evidence from incredible to credible". At page 273.
Before turning to the merits of the dispute, the Union has raised several issues which must first be addressed. The Union contends that the City did not conduct an independent investigation or virtually any investigation into the alleged misconduct of the Grievant before discharging him on February 22, 2001.
In this connection, in their March 23, 2000 letter to the Grievant, both Johnson and Duckworth indicated that the suspension "will continue pending the outcome of the City's investigation into your illegal off-the-job misconduct". Connell acknowledged that he never talked to the police officers about the events of March 21, 2000 until two (2) weeks before the arbitration hearing which took place on August 21, 2001. He said that he "attended the trial at the Courthouse". I have inferred that Connell's reference to a "trial" is to the hearing on the motion to suppress, which took place in January, 2001. Connell indicated that his role in the investigation of the March 21, 2000 incident "was to channel information" to the Department of Administrative Services.
Fithian's "first involvement" in the case occurred in January, 2001. He said that he was informed of the Grievant's suspension and was aware that the criminal charges against the Grievant had been dismissed. Fithian said that he spoke with Connell and Duckworth as to "where we were" with respect to the suspension of the Grievant. He "pulled the file" on the Grievant's suspension and talked with Assistant Prosecutor Perry as to what went on in the courtroom with respect to the hearing on the motion to suppress evidence. According to Fithian, Perry told him that the Judge determined that the search was illegal and that the criminal charges were withdrawn against the Grievant because of a "technicality". Fithian also spoke to the Police Chief.
At a meeting with the Grievant on February 9, 2001, Fithian explained to him that he had obtained information from the police with respect to the "meth lab" that was on his property on March 21, 2000. He also told the Grievant about the "probable cause affidavit" that was in his file.
Fithian went on to state that at the meeting with the Grievant, he [the Grievant] was reluctant to talk to him and said that he was "not guilty". Except for the meeting between Fithian and the Grievant on February 9, 2001, it is true that no independent investigation of the events of March 21, 2000 with respect to the meth lab found on the Grievant's property was conducted by the City before its discharge of the Grievant, effective February 22, 2001.
However, it is difficult to comprehend the Union's claim that the City's investigation was hardly adequate when the Grievant was requested to give his side of the story by Fithian at the February 9, 2001 meeting, he merely stated that he was "not guilty". It is one thing for the Grievant not to give his side of the story while criminal charges are pending; it is a far different matter, not to do so after criminal charges have been dropped resulting from a suppression hearing, which is what occurred in this case.
This brings me to the question of whether the City has a duty to investigate or a duty to conduct an investigation independent of the police with respect to the meth lab found on the Grievant's property on March 21, 2000. In Lamar Construction Co., 98 LA 500(Kanner, 1992) the Arbitrator stated that the duty to investigate as a due process right "represents a small minority view" at page 502. He went on to state:
"* * there is no contractual duty to investigate before discipline. Ultimately, at [the] arbitral hearing the penalty for lack of investigation falls on the party whose position is not sustained because of such omission". At page 502.
The Arbitrator also stated the following:
"In my view the issue of proper investigation is ancillary to the primary issue of just cause. If, notwithstanding a failure by the employer to touch all the investigatory bases, the evidence at arbitration is sufficient to prove just cause by a preponderance of the evidence, of what consequence was the employer's failure to properly investigate? It is the evidence produced at the arbitral hearing upon which the decision as to just cause either stands or falls. The employer is penalized at the arbitral hearing by its failure to investigate properly when, by lack of evidence, it then fails to persuade the arbitrator to the just cause underlying the discipline". At page 502
I subscribe to the views of the Arbitrator in Lamar Construction. To require the employer to conduct a proper investigation would generate "a morass of inconsequential issues", such as what witnesses were interviewed, whether appropriate questions were asked during the interviews, and whether certain evidence was not examined. As the Arbitrator stated in Lamar Construction:
"* * A trial of such issues would lead the arbitral hearing down excessive time-wasting paths. Assuming that the trial of such issues resulted in a finding that there was a superficial investigation or even a lack of it by the employer, the bottom line would still be whether the grievant was guilty of the offense charged notwithstanding a lack of investigation." At page 502.
The focus of this dispute is the conduct of the Grievant on March 21, 2000. It is not whether the City has conducted a proper investigation before it discharged the Grievant on February 22, 2001. If at the hearing the City has failed to establish by clear and convincing evidence that the Grievant was discharged for just cause, then the City is penalized and the appropriate remedy is issued by the Arbitrator.
Thus, it is true that the City relied upon the arrest of the Grievant and a "large article" in the Evansville Press to suspend the Grievant "pending the outcome of the City's investigation into [his] illegal off-the-job misconduct". As I have previously indicated the bulk of the City's investigation took place after the motion to suppress the evidence was sustained by the Judge in January, 2001. Fithian then spoke to Connell and Duckworth and talked to Assistant Prosecutor Perry; he reviewed the Grievant's file which included an affidavit of probable cause by Officers Tooley and Pugh and met with the Grievant on February 9, 2001. Fithian's investigation essentially was not independent of the police investigation; rather, it was dependent on such an investigation, which led the City to discharge the Grievant. As I have already concluded the City's case must stand or fall on the evidence which it presents at the arbitration hearing.
In this connection, various issues raised in this dispute were considered by the Arbitrator in Wayne State University, 87 LA 953 (Lipson, 1986). In this case, the Arbitrator sustained the discharge of a facility manager of the University's Community Center after he was arrested and charged with possession of cocaine. The misconduct of the grievant occurred outside working hours and off premises. The Arbitrator in Wayne State considered issues with respect to the arrest of the grievant, the admissibility of evidence despite the illegal seizure of evidence which caused the evidence against the grievant to be suppressed and the criminal charges to be dismissed, the claim that there was no indication of on-the-job impairment and the possession of cocaine by the grievant was away from the work site.
Turning to the facts of the instant case, the Grievant was arrested by the police on March 21, 2000. An arrest, however is "not the equivalent of guilt to the charges, nor should arrest raise a presumption of guilt." Wayne State, at page 956. As the Arbitrator stated in Wayne State, "arrest and nothing more establishing misconduct cannot sustain a discharge". At page 956. The issue to be addressed is whether the acts of the Grievant on March 21, 2000 which led to his arrest are subject to discipline or discharge by the City.
In Wayne State, the grievant was charged with possession of cocaine. On a motion to suppress, the Court dismissed the criminal charges against the grievant because the Court determined that the evidence against the grievant was unlawfully seized, and no further action was taken against the grievant. Thus, there was no resolution of the merits before the Court.
In Wayne State, the Arbitrator addressed the vital question as to whether to consider the evidence which was suppressed by the Court which is among the questions to be decided in this case. In other words, am I bound by the constitutional safeguards concerning an illegal search and seizure of evidence in resolving a dispute under a collective bargaining agreement between the City and the Union? As stated by the Arbitrator in Wayne State, "* * limitations on police in seizure of evidence should not ordinarily serve to bar admission of evidence in an arbitration proceeding". At page 956. Or, as Arbitrator Harry Dworkin properly stated, in Babcock & Wilcox Co., 60 LA 778, 782 (1972), a court's decision to suppress evidence because of an illegal search and seizure "does not determine, or prescribe the arbitrator's jurisdiction or authority. The arbitrator's powers are derived from the collective bargaining agreement; he owes primary allegiance to the negotiated agreement".
Having established that the City's evidence is to be considered, it is the City's burden of proving that the Grievant was guilty of misconduct on March 21, 2000. In this connection, I turn to the evidence presented by the City, which consisted of the undisputed testimony of Officer Jolly and Narcotics Detective Chris Pugh, the affidavit of probable cause the various photos of the meth lab in the garage which were taken on the evening in question and other documentary evidence submitted by the City.
Officer Jolly's testimony was convincing. He indicated that he observed the Grievant leave the detached garage and enter his house at 3211 Forest Avenue where Officer Jolly observed the Grievant in the kitchen taking something which he placed in his pants pocket. The Grievant left his house and proceeded towards his garage when he was stopped by Officer Jolly. Officer Jolly was given permission by the Grievant to search his pockets and Office Jolly found 3 or 4 clean sandwich bags. I have inferred that the sandwich bags were to be used with respect to the meth lab activities in the garage.
I have concluded that in answer to officer Jolly's question as to "who else was in the garage", the Grievant lied when he said "nobody". The Grievant had left the garage shortly before he was stopped by Officer Jolly. At the time, the police officers had observed two (2) persons in the garage.
It is undisputed that the police officers and firefighters found various items in the garage, and the presence of the odor from ether, all of which are consistent with the illegal manufacture of methamphetamine. It is undisputed that the Grievant disclosed to Officer Jolly that methamphetamine was in a tool box along with some ether.
The testimony of Officer Jolly and Detective Pugh is consistent with the details set forth in the affidavit of probable cause that was signed by Detectives Tooley and Pugh on March 22, 2000. The various items and paraphernalia contained in the garage which was depicted in the photos taken by the Police Department's Crime Scene Unit are consistent with the operation of a meth lab** as indicated by Detective Pugh.
** The evidence included plastic bottles, glass jars with aquarium tubing, sulphuric acid based drain cleaner, salt, ether, hot plate, beakers, acetone, 16 empty and 3 full bottles of Ephedrine Pseudoephedrine and 42.77 grams of marijuana.
Based upon the evidentiary record, I have inferred that the Grievant was a willing and voluntary participant in the operation of a meth lab. Had the criminal charges been resolved on its merits, I believe that the Grievant would have been convicted of dealing a Schedule II controlled substance, criminal recklessness and dealing marijuana, all of which are felonies in the State of Indiana.
In determining whether an employer may discipline an employee for off-duty misconduct, the Arbitrator in W.E. Caldwell, 28 LA 434 (Kesselman, 1957) set forth three (3) factors which are widely accepted and cited:
"1) behavior harms Company's reputation * *
2) behavior renders employee unable to perform his duties * *
3) behavior leads to refusal, reluctance or inability of other employees to work with him * *." At pages 436-437.
Connell said that he became aware of the reason for the Grievant's failure to report to work on March 22, 2000 when he read about his arrest in a "large article" in the Evansville Press. However, Connell did not indicate whether the "large article" in the newspaper referred to the Grievant's employment as a bus operator for METS. As a result, I cannot conclude that adverse publicity about METS was generated by the article in the local newspaper. Connell acknowledged on cross-examination that he did not have a copy of the newspaper article with him, at the hearing. Accordingly, I cannot conclude that the Grievant's off-duty misconduct harmed the reputation of METS. The remaining two (2) factors set forth in the Caldwell decision are not applicable.
There is another principle, however relating to off duty misconduct which I have concluded is applicable to the facts of this case. In American Airlines, 68 LA 1245 (Harkless, 1977) the Arbitrator stated "An employer is not prevented from disciplining its employees for off-duty conduct which involves or affects the employer-employee relationship. [Emphasis added]. At page 1247.
In the American Airlines case, the Grievant, a Flight Attendant was convicted of shoplifting, was fined and then placed on probation by the Court. Upon receiving notification of the conviction, the Employer discharged the Grievant. The Arbitrator who chaired the System Board of Adjustment reinstated the employee without back pay, while stating the following:
"An employer is not prevented from disciplining its employees for off-duty conduct which involves or affects the employer-employee relationship. However, an employer would not be justified in imposing discipline of an employee where her off-duty conduct is not related to her employment. In this instance, the Court determined that the grievant committed a criminal offense of shoplifting from a department store. The grievant was off duty, she was not dressed in uniform, and there was no publicity concerning the incident. Therefore, the Company was not directly harmed by the grievant's unlawful act of dishonesty. Despite this, however, the grievant held a responsible position with the Company serving the public. Consequently, the Company was entitled to have confidence in her integrity. The grievant's reprehensible off-duty misconduct seriously undermined her employment relationship with the Company. The Board therefore must conclude that the grievant's criminal conviction for stealing warranted disciplinary action." At page 1247
Based upon the evidentiary record, the Grievant's off-duty conduct on March 21, 2000 involved or affected the employer-employee relationship. The Grievant committed unlawful conduct by participating in the operation of a meth lab on his property at 3211 Forest Avenue. As I have previously indicated there is no evidence that there was publicity in the local newspaper or media which established that the Grievant was employed by METS as a bus driver. Therefore it cannot be said that the City was directly harmed by the Grievant's unlawful conduct. However, the Grievant held a more responsible position with the City than the grievant in American Airlines held with her employer. As a bus driver, the safety and care of the riding public was entrusted to the Grievant. The City is entitled to have confidence in the Grievant's judgment and that he would not commit unlawful conduct which would endanger the lives of the very citizens, who are served by the City. The Grievant's reprehensible off-duty misconduct seriously undermined his employment relationship with the City.
There is also the process of manufacturing methamphetamine in which the Grievant was engaged, on March 21, 2000. The process is extremely hazardous. Various chemicals are used which are dangerous and volatile. Officer Pugh indicated that a company specializing in environmental services was hired by the City to remove chemicals such as sulphuric acid, ether and acetone, because these chemicals are too hazardous to store as evidence at the police station. The risk of an explosion is great if these chemicals are handled improperly. In a residential area where homes (including the Grievant's home) are located close to each other, the Grievant's conduct is nothing short of reckless. As Fithian stated in his letter dated March 21, 2001, which served as a response to the grievance, the "activity" involving the Grievant, "shows a total disregard for the safety and welfare of [his] family and neighbors who are a segment of the citizens of the City of Evansville, the employer".
In light of his highly irresponsible unlawful misconduct, the Grievant's employment relationship with the City has been irreparably damaged. It is difficult to comprehend how the City could trust the Grievant with the safe and responsible operation of a vehicle. While driving a bus, the Grievant is required to exercise unsupervised discretion. As a public carrier, METS is held to the highest degree of care in the operation of its vehicles.
Moreover, the City's "Drug-Free Workplace Policy", in relevant part, prohibits the unlawful manufacture, use, distribution, possession, sale * * during work hours or on City property". The policy goes on to provide that "violation of this policy may result in disciplinary action up to and including discharge * *." The policy also provides that "[T]his (prohibition of unlawful manufacture", etc.) in no way limits the City's ability to determine disciplinary action, for situations not covered by this policy".
It is unreasonable to conclude that the City is authorized to issue discipline, including discharge for violation of the unlawful manufacture of drugs during working hours or on City property; but, it is without authority to do so, for example, shortly after an employee leaves work and engages in the unlawful manufacture of drugs on the scale which the Grievant did in this case in his garage.
I have concluded that consistent with the Wayne State and American Airlines decisions, the Grievant has irrevocably damaged the employer-employee relationship. The Grievant's reprehensible conduct has seriously undermined any trust and confidence in his continued employment as a bus driver, in light of the responsibilities of the job which is owed to the riding public.
As in the Wayne State and American Airlines decisions, the Grievant has successfully handled his job in the past. He has never been disciplined for a violation of the City's drug policy, despite being subject to random drug tests on various occasions. There is nothing in the evidentiary record to indicate that the Grievant's driver's license has been suspended or been in jeopardy. He has had several infractions in the past, which apparently the City has not considered in its decision of discharge. Despite the Grievant's record, his misconduct on March 21, 2000, which but for the illegal search, would have resulted in a conviction for various felonies associated with the operation of a meth lab had the criminal case proceeded to trial.
Accordingly, the City proved by clear and convincing evidence that the Grievant was discharged for just cause.
The grievance is denied.
In light of the aforementioned considerations, the City proved by clear and convincing evidence that the Grievant was discharged for just cause.
The grievance is denied.
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