Arbitration Award


In re City of Indianapolis


AFSCME Council 62


118 LA (BNA) 357

AAA Case No. 52-390-00259-02


January 14, 2003

Lisa Salkovitz Kohn, Arbitrator:


Issues Presented 


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 Contract Provisions 


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.  * * * 





Section 18. Drug Testing. Drug testing will remain a departmental policy and the previous side agreement (Substance Abuse Policy) signed and dated. 


Factual Background 


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.