Member Reinstated with Three Years' Back Pay in Arbitration Win
January 6, 2009
A maintenance equipment operator who was terminated for allegedly refusing to take a random drug test has been reinstated with seniority and nearly three years’ back wages and benefits after an arbitrator agreed with the union that his termination was not for just cause. NAGE attorney Michael Manning represented the Unit 3 member at arbitration.
In January 1995, the Massachusetts Highway Department implemented a drug and alcohol policy for employees who hold a Commercial Driver’s License. The policy has six required tests, including random tests. Under the policy, an employee who refuses to submit to a required drug or alcohol test will be terminated immediately.
On February 2, 2006, the grievant, who had worked for the department since 1987, was among five Mass. Highway Department employees randomly selected for drug testing. The grievant’s supervisor informed him at 7:30 a.m. that his test had been scheduled for 10:30 a.m. that morning.
At around 9 a.m. that same day, another supervisor contacted the grievant to inform him that his wife had called to report an emergency at home. The grievant called his wife and discovered that his home furnace was leaking, so he requested and was granted personal time off to attend to the problem.
On February 13, a third supervisor transported the grievant to Greenfield where he was administered a random drug test. The grievant assumed that this was a “make-up” test for the one he missed on February 2nd due to his home emergency.
On March 3rd, following a February 27th hearing, the grievant was terminated for his reputed refusal to take the random drug test on February 2nd.
NAGE Unit 3 President Leo Munroe immediately filed a grievance on behalf of the grievant contending that there was no just cause for his termination since he did not refuse to submit to a random drug test. He, in fact, had submitted to what he thought was a make-up test on February 13th.
The arbitrator agreed with the union’s position and concluded that the grievant did not refuse to submit to a random test. “Moreover,” the arbitrator wrote, “he had 18 years of service with the department … had seven previous alcohol and drug tests, all of which were negative.”
The arbitrator ordered that the grievant “be restored to service as a Maintenance Equipment Operator … with his seniority restored and with all reference to his termination removed from his record.” The grievant is to “be made whole for lost wages and benefits … subsequent to February 24, 2006,” the date of a pre-termination suspension.