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2. Was the grievant’s decision made voluntarily
or was it induced by misrepresentation, coercion,
or duress? 315
24.08 – Drug Testing
The arbitrator’s authority is solely to determine
whether the Agreement has been breached. The
presence of an agency search policy is not part of
the Collective Bargaining Agreement. The
Warden’s order for the grievant to submit to drug
testing must withstand scrutiny not in terms of
the search policy, but solely in terms of the
Agreement. Grievant’s selection for drug testing
was based on evidence identifying him as a
prime suspect for drug use. The order to submit
to testing was not an order to submit to random
drug testing. The Agreement, in specifically
prohibiting random drug testing, leaves testing
upon reasonable suspicion to management’s
discretion. There is no discernible intent to
preclude management from ordering such
testing; indeed, the parties bargained over a drug
testing provision and intentionally elected only
to prohibit random testing. There is no basis for
the arbitrator to expand the meaning of Section
43.03 to also prohibit testing based on reasonable
suspicion. The lack of a written policy on drugtesting
does not violate Section 43.03, which
requires prior notification and an opportunity for
discussion whenever a new work rule is put into
place. The search policy that was already in
place does not appear to be intended to cover
searches of body fluid such as blood or urine.
Since the Warden told the grievant that failure to
submit to a drug test would result in dismissal
rather than a suspension for insubordination, it
follows that management is required to have
discussions with the Union about drug testing. It
was unclear whether the drug-testing discussion
were started before or after the date of the
grievance. For this reason the employer was
found not to have violated Section 43.03 of the
Agreement. The laboratory drug test results were
trustworthy. Although the laboratory procedures
could have been a little tidier, there was no
opportunity for misplacement or tampering and
the test ran well within the laboratory’s standards
for calibration for the machine. The
circumstantial evidence is convincing; the
grievant smoked marijuana while on the job. The
fact that the grievant continued to work as a
corrections officer while pending his review by
the Warden is not an indication that management
was willing to tolerate the grievant’s offense. It
indicates that the employer dealt carefully with
the grievant. The unique setting of a prison
environment makes it a necessity to stringently
enforce rules against illegal drugs on the
premises. There was just cause for the grievant’s
removal for smoking marijuana while on the job.
323
The employer is not obligated to persuade the
employee to enroll in the Employee Assistance
Program. 362
The grievant, who was not employed in a
classification subject to random drug testing
under Appendix M1 of the Agreement, misled
the Employer into believing that he possessed a
Commercial Driver's License (CDL). The
Arbitrator dismissed the charge of drug use, as
the grievant's drug use was detected by a test that
violated the requirements found in Section 24.08
that "reasonable suspicion" must exist before the
Employer may administer a drug test. 633
(1997-2000 contract)
24.09 - Employee Assistance Program (EAP)
The parties have agreed that disciplinary action
may be delayed by the employer if the affected
employee elects to participate in an employee
assistance program. The contract does not
mandate the employer to delay or modify a
disciplinary action due to an employee’s
participation in EAP. Additionally, it specifically
contemplates that an employer be provided with
verification of “successful completion” of such a
program by the affected employee before the
employee is required to give serious
consideration to a modification of discipline. The
arbitrator noted as a factor in denying the
grievance that the grievant has voluntarily
chosen not to avail himself of that contractual
safeguard. 153
This section mandates that at the end of 90 days
after return to work that the employer give
serious consideration to modifying the discipline.
The discipline challenged in this grievance arose
from a new incident unfortunately occurring
before the 90 days were up. The grievant
underwent EAP for alcohol dependency. By his
own testimony, he has been sober since then and
continues in AA. He is to be commended.
However, neither the grievant nor the employer
maintained that the discipline involved in this
grievance was related to his alcohol problem.
For these reasons the arbitrator rejected the
argument that removal of the grievant