Seyfarth Synopsis: A beverage wholesaler has appealed an arbitration award to federal court where the Company discharged a CDL driver who tested positive for cocaine. The arbitrator had ruled that the Company did not have just cause for termination.

A recent complaint in federal court highlights the challenges of terminating union-represented employees for testing positive for a controlled substance. The International Brotherhood of Teamsters (Union) Local 59 represented drivers for the Colonial Wholesale Beverage Co. (Colonial). According to Colonial’s complaint in Colonial Wholesale Beverage Co. v. Local 59, International Brotherhood of Teamsters, No. 20-cv-12136-DPW (MA DC Dec. 1, 2020), the Company terminated one driver, Michael Jenney, after he tested positive for cocaine.

The Union grieved the termination, contending that the termination was without just cause and took the grievance to arbitration. At arbitration, the Company presented evidence that it had terminated Mr. Jenney based on its substance abuse policy as outlined in the parties’ collective bargaining agreement (Agreement) and its Employee Handbook (Handbook). In addition, Colonial argued that its substance abuse policy was “rooted in its belief that allowing the kind of reckless behavior demonstrated by Jenney, poses too high of a threat to the Plaintiff’s business, to the public at large, and to the other members of the Plaintiff’s staff in terms of the future liability, the reputational harm, the distrust from its clients, the increases to its insurance premiums, the breakdown in worker dependability, the threat of toxicity in the workplace, and – most importantly – the immeasurable public safety concerns.” The Union argued that Mr. Jenney’s positive drug test was due to cocaine use at a party several days before the test, and that he was not impaired at work or the time of the positive test. The arbitrator concluded that the Company lack just case to terminate the employee.

Colonial moved to vacate the award in federal court. In its complaint, Colonial argued that the arbitrator exceeded his authority by applying an incorrect standard. Rather the focus his analysis on whether there was just cause for Jenney’s authority, Colonial contended the arbitrator instead focused his analysis on the overly broad issue of “what should be the appropriate outcome for Jenney in light of his positive test result.” The grounds to vacate a labor arbitration award are narrow, but courts will vacate awards where an arbitrator exceeded his authority under the contract or substituted his judgment as to what is “industrial justice.”

Regardless of whether Colonial is successful, the arbitration award in this matter highlights several fundamental misunderstandings about drug impairment and drug testing. The National Safety Council advises employers to maintain zero tolerance drug policies for employees in safety sensitive positions because drug impairment greatly increases the probability of serious accidents, injuries, and deaths. To maintain zero tolerance policies in a unionized environment, employers must take responsive action against any employee who tests positive for cocaine — employers cannot ignore positive test results because an employee claims the drug was used at a party and not the day of the test. If employers fail to enforce zero tolerance substance abuse policies, they may engender claims for disparate treatment and may lose their ability to protect employee safety from drug impairment in the future. Though it was not raised in the Complaint, mandatory drug testing is required for CDL holders by the United States Department of Transportation. Failed drug tests can result in a stay in revocation of permission to drive trucks from state and federal agencies.

Further, current drug testing technology is limited such that positive tests are correlated with drug impairment; they are not tools with which non-experts can definitely prove drug impairment at any specific time. The law presumes individuals who fail a drug test are impaired by cocaine, and under a just cause analysis, the employer has the burden of proof. It is rare that an employer will have evidence as to when an employee took the illegal drug. The arbitrator essentially overruled the employer’s only tool to detect drug use, and negated the use of employer drug policies in a safety sensitive environment. Employers should take note of this decision and document any reasonable suspicion facts where possible.