In
re City of Indianapolis
and
AFSCME
Council 62
118
LA (BNA) 357
AAA
Case No. 52-390-00259-02
January
14, 2003
Lisa Salkovitz Kohn, Arbitrator:
The issue presented, as framed by
the parties at the hearing, is whether the termination of the Grievant either
violated the parties' collective bargaining agreement or was without just cause
and if so, what is the remedy.
Relevant provisions of the
parties' collective bargaining agreement effective January 1, 1999 through
December 31, 2002 (the Agreement), include the following:
The
Management of Departments with covered employees and the direction of its
working force are vested exclusively and solely in the City and shall not in
any way be abridged except as provided in this Agreement. The City in the
exercise of its functions of Management shall have the right (a) to direct its
employees; (b) . . . to discharge, suspend, discipline, or demote employees for
just cause; . . . (f) to make rules and regulations for the conduct of
employees and safety of the work force; . . . .
D.
Pre-Disciplinary Meeting.
Unless the circumstances indicate
otherwise, when a supervisor or other manager is considering giving an employee
a written reprimand, or a disciplinary suspension, demotion or termination, the
supervisor or other manager shall hold a pre-disciplinary meeting prior to the
issuance of the discipline. . . .
Section
3. Termination of Seniority. The seniority of the employee shall terminate
under any of the following conditions:
* * *
E.
When he/she is discharged for a just cause.
* * *
DEPARTMENT
OF PARKS AND RECREATION ADDENDUM TO MASTER AGREEMENT
ARTICLE III
MISCELLANEOUS
Section 18. Drug Testing. Drug testing will remain a
departmental policy and the previous side agreement (Substance Abuse Policy)
signed and dated.
The Grievant, H__, is a 24-year
City employee. At the time of this incident, he was employed as a medium
equipment operator in the Athletic Field Section of the City's Department of
Parks and Recreation, reporting to Supervisor Stephen Rush. He had been on
leave from February 6 to February 19, 2002, due to an on-the-job shoulder
injury, which had required surgery.
Sometime after the Grievant returned from workers' compensation leave,
Rush smelled marijuana on the Grievant. In addition, Rush received a complaint
from one of the Grievant's co-workers that the Grievant had been smoking
marijuana. However, Rush did not send the Grievant for testing at the time of
his own observation or the employee complaint, Rush testified, because there
was no other supervisor available to corroborate Rush's suspicion of the
Grievant's drug use, and the Substance Abuse Policy requires that two
supervisors suspect the employee before drug testing can be required. Rush did
warn Manager Jason Kissel, Supervisor Lindsey Purcell, and Park Maintenance
Administrator Steve Waltz that he had smelled marijuana on the Grievant and
asked them to keep an eye on him.
On Thursday, April 14, 2002, the
Grievant was working on athletic fields with co-workers M__ and B__. Two
vehicles were assigned to the three employees. At about 2:45 p.m., Jason Kissel, then Manager, Urban
Forestry, retrieved an anonymous message for him from his office answering
machine. {1} The caller, a woman, said that the Grievant, B__, and M__ were smoking
marijuana on the job in a city vehicle at the 60th and Michigan location. The
employees' immediate supervisor, George Rush, was not working that day. Kissel
called Rush at home and confirmed that the three employees were assigned to
work together that day.
Kissel then called Susannah
Overholt, Manager, Labor/Employee Relations, to find out how to arrange for
drug tests for the three employees. B__ and H__ had already left for the day,
and by the time Kissel had completed the necessary paperwork, M__ also had
completed the shift, so Kissel decided to send the employees for drug testing
the following day.
The following morning, March 15, the Grievant did not come to work.
Kissel and Rush met with B__ and M__, explained the drug testing forms, and
sent them with an escort to be tested. Both B__ and M__ tested positive. M__
resigned from employment. B__ did not attend his pre-disciplinary hearing and
was terminated.
The Grievant had left at noon
March 14 to have a tooth pulled, having previously notified the Department of
his dentist appointment. That evening, he was still in pain, so he called Rush
to advise him that he wanted to take the next day off as a benefit day. He also
said that he would call Rush the next day to find out “what your plans are.” {2} His question about Rush's plans,
the Grievant testified, referred to whether he would be able to take the day as
a “benefit day.”
The Grievant did not come in to pick up his paycheck on
March 15, the first time in Rush's knowledge that he had failed to do so. The
Grievant did not speak with Rush until either late Friday or Saturday night. By
that time the Grievant had heard that B__ and M__ were being discharged because
of drug tests. He had received calls from several employees, including B__ and
M__, and some employees had told him that park rangers would come to get him.
According to Rush, the Grievant talked about using marijuana, and said he was
guilty and would rather resign than have the park rangers come and “lock him
up.” The Grievant, testifying on direct and rebuttal, denied that he had smoked
marijuana on city time, and denied telling Rush that he was guilty. The
Grievant also testified that it was Rush who suggested that the Grievant could
resign, but agreed that he told Rush he would rather resign than be fired.
On Monday, March 18, the Grievant brought in a doctor's certificate
which said that he had been seen that day and that he should be excused from
work until April 1. The certificate gave no diagnosis or other reason for the
absence. When the
Grievant returned to work on April 1, Kissel and Rush met with him. Rush had
told Kissel about the Grievant's comments about using marijuana and resigning,
and Rush and Kissel both expected the Grievant to resign in that meeting. When
he did not, they terminated him, on the ground that, as stated in the Notice of
Unacceptable Performance or Conduct, “on March 14, 2002, [he] was observed
along with M__ and B__ smoking marijuana in a city vehicle,” in violation of
Group VII Rule D (Using a controlled substance on the job), Group VIII Rule A
(Abuse of City equipment), Group X Rule A (Failure to comply with health and
safety regulations), Rule B (Failure to report unsafe conditions to
supervisor), and Group XIV Rule A (Unbecoming conduct). {3}
According to both Rush and Waltz, the Grievant was not sent for drug
testing when he returned to work on April 1 because the test results would have
been irrelevant due to the two-week delay. Instead, they decided to terminate
the Grievant based on the anonymous phone call, the verification of the phone
call by the positive drug tests of the two other employees named in the call,
and Rush's previous observation of the Grievant smelling of marijuana.
M__ testified that Kissel permitted her to listen to the tape of the
anonymous call, and that she recognized the voice of the caller as that of a
friend of hers, who was getting back at her for having called the police
several days earlier when the friend pulled a gun on her. M__ testified that
she did not see the Grievant do anything illegal on March 14, and denied that
she had done anything illegal either. She resigned rather than be terminated after
the positive drug test.
The Parties' Contentions
A. The City
The City contends that the
termination of the Grievant was for just cause and consistent with the
collective bargaining agreement. As a public entity, its operations and
employees are subject to intense public scrutiny. In this case, the Grievant
and two other employees were observed by a member of the public, working in a
public park, sitting in a city vehicle, using marijuana while on the city
payroll. Management acted appropriately and consistent with the substance abuse
policy. Because two of the three accused employees had already left work by the
time the report came in, and the shift ended before the necessary paperwork
could be obtained, the employees could not be observed or tested that day, but
the two who reported the next day were tested, and their test results were
positive. The Grievant, however, frustrated the drug-testing policy by avoiding
work the following day and obtaining a doctor's excuse, without any diagnosis
or reason given, allowing him to miss the following two weeks. By the time the
Grievant returned to work it was too late to test him.
However, the City contends that there was just cause to believe the
anonymous tip: The tip was verified by the positive tests of the other two
employees, and it was reasonable to believe that the Grievant's two-week
absence was designed to avoid the test. The Substance Abuse Policy permits drug testing if two
supervisors have “reasonable suspicion that the employee is under the influence
of, or using drugs or alcohol during work hours or in a City vehicle.” These
circumstances satisfy that requirement. The policy does not require that two
supervisors have a reasonable suspicion at the same time or on the same
occasion. Management is permitted to make reasonable inferences, and is not
required to ignore the common-sense implication of one employee avoiding
testing for two weeks after the accusation. See, e.g., Miller v. Vanderburgh
County, 610 N.E.2d 858 (Ind. App. 1 Dist. 1993). Nor was management required to
test the Grievant two weeks after the tip, when he finally returned to work.
Such a test would have been meaningless, due to the passage of time.
The examples raised by the Union
are distinguishable from the Grievant's case. Another supervisor did view
accused employees after a vague telephone tip, but that does not mean that the
Grievant's termination was wrong. There is no policy or past practice that
permits the City to require an off-duty employee to submit to drug testing. The
City's settlement of another grievance raising a similar issue had no
precedential value and did not establish a binding interpretation of the
substance abuse policy.
For these reasons the City urges that the grievance be
denied in its entirety.
B. The Union
The Union contends that the termination was without just cause and in
violation of the parties' contract. The policy on drug testing has been in
place, with changes, since 1989. It requires that if one supervisor suspect drug
abuse, he or she must have a second supervisor agree with the suspicion, in
order to require a drug test. Although one supervisor claims to have suspected
the Grievant beginning shortly after his return from leave in February, he
never ordered a test. It is incredible that he could never locate a second
supervisor to confirm his observation. Management could have asked the Grievant
to come in for a test the day after the anonymous tip, or even the following
Monday, when the Grievant came to work to turn in his doctor's note. Management
had no basis to terminate him without a drug test.
Management also violated the
contract by coming to the pre-disciplinary meeting on April 1 expecting that
the Grievant would resign or be terminated; the pre-disciplinary meeting is
supposed to occur before the decision has been made.
The Union contends that the
Miller case is inapplicable, because it involved sheriff's employees who are
subject to a higher scrutiny than Parks and Recreation workers.
In the absence of any evidence
that the Grievant violated any rule or policy, the City lacked just cause and
violated the parties' collective bargaining agreement by terminating the
Grievant. The Union urges that the Grievant be reinstated with full back pay
and benefits.
The City, as a public employer,
has a special concern about the conduct of its employees. Many employees in the
Parks and Recreation Department drive City vehicles or use publicly-owned
medium or heavy equipment in the course of their duties. City employees are
subject to heightened scrutiny by the public, the taxpayers who foot the bills.
Indeed, this incident began with an anonymous report of an alleged observation
of City employees while they were in a City vehicle on City land.
The City, like most American
employers, considers drug and alcohol offenses to be serious violations. The
City has adopted a Drug-Free Workplace Policy, which states in part:
The unlawful manufacture, distribution, disposition,
possession or use of a controlled substance during work hours or while in city
vehicle is absolutely prohibited. Violation of this policy will result in
corrective action pursuant to the employee manual and may have legal
consequences as well.
As part of the Drug-Free
Workplace Policy, the City also provides a confidential Employee Assistance
Program. The schedule of offenses in the Employee Handbook specifically
provides that demotion or termination will be the penalty for a first offense
on the job or at the work site of drinking alcohol; possessing an open alcohol
container; being under the influence of alcohol; using, testing positive for or
possessing a non-prescribed controlled substance; or failing to submit to drug
or alcohol testing in accordance with the City's policy. However, the Employee
Handbook also states,
For alcohol and controlled
substance issues, supervisory discretion for the corrective action is
encouraged and may include requiring the employee to attend an alcohol/drug
rehabilitation program and/or placing the employee on leave.
The City and the Union have also
agreed to a Substance Abuse Policy, which states in part:
The City may require that an employee undergo drug
or alcohol testing if two supervisors have reasonable suspicion that the
employee is under the influence of, or using drugs or alcohol during work hours
or in a City vehicle. Reasonable suspicion is based on specific facts and
reasonable inference drawn from those facts. Circumstances that constitute a
basis for determining reasonable suspicion include, but are not limited to, the
presence of physical symptoms of drug or alcohol use (i.e., glassy or bloodshot
eyes, alcohol or marijuana odor on breath, slurred speech, or poor coordination
and/or reflexes) as well as abnormal or erratic behavior.
The Policy then provides the
procedures for conducting such testing, when two supervisors (or one supervisor
plus the department's Safety Officer or a police officer) agree there is
reasonable suspicion an employee is under the influence of, or using drugs or
alcohol.
The key in this case is that the
City has the burden of proving by at least clear and convincing evidence, if
not a preponderance of the evidence, that there was just cause for the
Grievant's discharge. The available evidence simply does not meet that standard
of proof. {4}
The Grievant was not discharged because he tested positive on a drug
test; nor was he discharged because he refused to take a drug test. Management
never ordered or even asked him to submit to a test. Instead, according to the
Notice of Unacceptable Performance or Conduct, the Grievant was discharged
because “on March 14, 2002, [he] was observed along with M__ and B__ smoking
marijuana in a city vehicle,” in violation of a number of City rules.
However, there is no direct evidence that the Grievant committed this
offense. None of the witnesses who testified, including Administrator Waltz,
Manager Kissel, and Supervisor Rush, had observed the Grievant smoking
marijuana on March 14. The only evidence that the Grievant had done so is
circumstantial: 1) The recording of an anonymous phone caller making her
accusation, 2) the positive drug tests of the two other employees accused, 3)
the Grievant's failure to report to work the following day, or indeed for
another 17 days, and 4) the Grievant's purported admission of guilt to his
supervisor. The Grievant, on the other hand, denies that he smoked marijuana
that day, denies that he ever admitted doing so to his supervisor, and asserts
that he had legitimate reasons for his subsequent absence. He does not dispute
the positive test results of his co-workers, but those tests say nothing about
his own physical condition. Moreover, the tape recording, although admissible
to show the reason for management's actions, is hearsay and is inadmissible as
evidence of the truth of the anonymous report. {5}
The parties have debated whether there were two
supervisors with sufficient “reasonable suspicion” to require testing under the
Substance Abuse Policy. However, the question is irrelevant—management did not
send the Grievant for drug testing. For this reason, the case cited by the City
is inapplicable. Although Miller v. Vanderburgh County, 610 N.E.2d 858
(Ind. App. 1st Dist. 1993) discusses the standard of “reasonable suspicion”
necessary under the Fourth Amendment of the federal constitution before a
Sheriff's Department could discharge a sheriff's deputy who refused to submit
to a drug test, the Miller court does not say that the “reasonable
suspicion” defined would justify the termination of an employee outright. At most, Miller suggests
that the City might have had sufficient grounds to test the Grievant. But this
the City did not do. Management fired the Grievant instead.
The City suggests that there was no need to test the Grievant because
of the suspicious circumstances of his subsequent absences. However, this is
not enough to overcome the Grievant's denials of wrong-doing. In particular, the record shows
that the Grievant had previously made a dentist appointment for 1:00 p.m. on
March 14, at which time he had a tooth extracted. His explanation that he missed work on March 15 because
of continuing pain from his tooth is credible, and he did call his supervisor
to warn that he would be off work that day. Although the City argues
that the Grievant's reference to calling Rush again Friday to find out “what
your plans are” shows that the Grievant already knew about the anonymous call,
the Grievant testified plausibly that he was referring to whether the day would
be treated as a “benefit day.” Similarly, the fact that the Grievant did not
come in to pick up his check that Friday is not enough to support the Company's
leap to assert that this demonstrates that he was guilty of smoking marijuana
the day before. Finally, the City's complaint now about the vagueness of the
doctor's note covering the subsequent two-week leave is also insufficient to
satisfy the City's burden of proving that the Grievant was smoking marijuana in
a City vehicle on March 14. If the City were suspicious of the Grievant's
absence, management could have investigated even before terminating him on
April 1. By simply tolerating what management now contends was a “suspicious” absence,
the City has waived its right to question its bona fides now.
The most important point is that if Kissel and/or Rush suspected on
March 14 that the Grievant had been smoking marijuana as reported, they could
have investigated then or the next day. Although B__ and the Grievant had already left for the
day, M__ was still at work, but Kissel did not try to reach her before the end
of her shift, or examine the vehicles they had been using. {6} Kissel and/or Rush could have
attempted to reach the Grievant on March 15 to question him, and if they had
“reasonable suspicion” of him after that investigation, they could have and
should have required that he undergo a drug test. Although the City objects
that there is no “past practice” of calling off-duty employees in to be tested,
there is no evidence in this record of any bar to the City's doing so. Indeed,
the Union advocate pointed out in closing that the City could have asked the
Grievant to submit to testing on March 15 or when he came to work on March 18
to drop off his doctor's note. Having chosen not to do so, management has only
circumstantial evidence to support the discharge, and, countered by the
Grievant's denials and reasonable explanations, it is simply not enough. Even
though B__ and M__ tested positive, there is no proof that the Grievant smoked
with them. In fact, he denies it.
Management's suspicions may be
correct, and it is understandably frustrating not to make the suspicions stick.
But mere suspicion is not enough to justify a discharge; the City must have
just cause. On this record, the City has failed to prove that the Grievant (as
opposed to M__ or B__) committed any of the offenses charged. Accordingly, the
grievance must be sustained, and the Grievant made whole for all wages and
benefits lost as a result of the termination.
1. The City did not have just
cause to discharge the Grievant.
2. The City shall reinstate the
Grievant and make him whole for wages and benefits lost as a result of the
termination.
3. As specified by the parties at
the hearing, the fees and expenses of the arbitrator shall be borne equally by
the parties.
1. The recording was played at
the hearing.
2 A tape of the Grievant's
message to Rush was played at the hearing.
3. The specific rules cited are
Group VII (Alcohol and Controlled Substances on the Job or at the Work Site),
Rule D (“Using, testing positive for or possessing a non-prescribed controlled
substance”); Group VIII (City Equipment, Facilities, Supplies, Records and
Funds), Rule A (“Abuse, misuse or destruction of City equipment, facilities,
supplies, records or funds”); Group X (Health and Safety Regulation), Rule A
(“Failure to comply with health and safety regulations”) and Rule B (Failure to
report unsafe conditions to supervisor); and Group XIV (Unbecoming Conduct),
Rule A (“Damaging the City's reputation and the public's trust through
unbecoming conduct, including criminal convictions, during work or non-work
hours”.)
4. It is unnecessary to specify which standard of proof applies, as the
City has failed to meet even the lighter burden.
5. As far as this record
indicates, the City never identified the anonymous caller, although Mullins
testified that when she listened to the tape, she recognized the voice as that
of one of her friends who held a grudge against her.
6. This contrasts with the situation described by Public Works
Supervisor Tibbs, who received an anonymous phone call reporting employees
drinking and doing drugs on the job. Tibbs and a manager immediately called the
crew in, observed them, and sent them for testing based on their direct
observations of the crew's physical symptoms of intoxication. In that case, two
tested positive and were disciplined; two tested negative and were not
disciplined.