ARBITRATION SUMMARY AND AWARD LOG

OCB AWARD NUMBER: 1691

OCB GRIEVANCE NUMBER: / 24-04-061102-932-01-04
GRIEVANT NAME: / Thomas J. Thompson
UNION: / OCSEA/AFSCME
DEPARTMENT: / Mental Retardation/Developmental Disabilities
ARBITRATOR: / Robert G. Stein
MANAGEMENT ADVOCATE: / Tondra L. Brokaw
2ND CHAIR: / Neni Valentine
UNION ADVOCATE: / Steve Wiles
ARBITRATION DATE: / 05/15/03
DECISION DATE: / 06/28/03
DECISION: / DENIED
CONTRACT SECTIONS: / Article 24 - Discipline

HOLDING: The Grievance was DENIED. The Arbitrator found that the Grievant failed to comply with his Last Chance Agreement, and that termination was appropriate.

COST:

SUBJECT: / ARB SUMMARY 1691
TO: / ALL ADVOCATES
FROM: / MICHAEL P. DUCO
AGENCY: / Mental Retardation/Developmental Disabilities
UNION: / OCSEA/AFSCME
ARBITRATOR: / Robert G. Stein
STATE ADVOCATE: / Tondra L. Brokaw
UNION ADVOCATE: / Steve Wiles
BNA CODES: / 118.0100 Discipline-In General; 118.3010 Progressive Discipline; 106.1020 Supervisor – Intimidation; 116.0500 Employee Assistance Programs

The Grievance was DENIED.

The Grievant was employed at the Cambridge Developmental Center within the Department of Mental Retardation and Developmental Disabilities. He began his employment on May 27, 1997. At the time of his removal, he had an oral reprimand for tardiness on his record. The Grievant was terminated on June 4, 2002, for violation of a Last Chance Agreement (LCA) he had entered into after previously reporting to work under the influence of alcohol. On the day in question, he did not submit to a random follow-up drug/alcohol test required by the LCA. The Union argued that he did not refuse the test, but simply sought to consult his Union representative as was his right in the Contract.

The Employer argued that this was a straightforward case of an employee violating his LCA. The LCA signed by the Grievant mandated at least six (6) random drug tests within the following year, with termination to follow if the Grievant refused any of these tests. The Employer theorized that the Grievant refused to take the drug screen because he knew he would fail the test. Otherwise, he had been properly notified and allowed to speak to his Union representative.

The Union argued that the Grievant did not refuse to take the drug test, but rather attempted to exercise his right to an hour with his Union representative prior to submitting to a drug screening. The Grievant’s supervisor became loud and angry when he tried to exercise that right, and that impatience led to the termination before the Grievant could take the test. The Union also argued that the Employer had failed to execute the EAP agreement when the LCA was implemented. The Union asserted that the Employer finally executed the EAP agreement on 4/10/02 and changed it from a ninety-(90) day agreement to a one hundred and eighty (180) day agreement without the knowledge and consent of the Union, making the EAP agreement and the LCA procedurally defective.

The Grievance was DENIED. Although the supervisor’s impatience may have been a factor, the Arbitrator found that the Grievant had violated his LCA. The Grievant had previously complied with a random drug test, and had no reason to protest the screening in question. Though the Bargaining Agreement allowed for a consultation with a Union representative one hour prior to testing, the Arbitrator agreed with the Employer that this did not guarantee a full one-hour meeting. The Arbitrator found that the Employer’s handling of the EAP agreement in changing it from 90 days to 180 days with the Grievant’s consent but without consent of the Union was inappropriate. However, this did not affect the distinct and separate obligations of the Grievant under the LCA.