International Association of Bridge, Structural and
Ornamental Iron Workers, Shopmens Local 520
John R. Thornell, Arbitrator. Award issued May 15, 1993.
ISSUE
Ordering drug test Suspension Argument with supervisor.
The parties agreed to this submission agreement: Did the actions of the Company
on August 24, 1992 in requiring Grievant to take a drug test and in suspending him for the balance of the shift, violate the contract, and if so, what should be the remedy?
FACTS
The Company is a fabricator of structural steel products, such as beams, columns, girders and trusses used in the construction industry. It operates a plant in Kansas City, Missouri where this grievance arose.
Grievant is classified as a machine operator 1st class. At the time of this dispute he had worked for the Company approximately sixteen years.
The events giving rise to this grievance occurred on August 24, 1992. At that time Grievant was on the second shift (4:30 P.M. to 1:00 AM.) where he operated a shot-blast machine used to clean steel units that have been fabricated prior to their being painted. These units are of various sizes. Some of them are massive - ranging up to several thousand pounds. They are moved through the plant with overhead cranes and on steel carts. The constant moving of bulky pieces of steel in the fabrication process subjects employees to a high risk of injury. There is exposure to welding, cutting, shearing and punching operations. The Company attempts to keep employees on the alert to the dangers involved in their work.
About 6:00 P.M. on the above date the Plant Manager walked by the shot-blast machine where Grievant was engaged in lifting a steel beam frame assembly from a cart. The unit had just been processed through the machine. The Company claims the beam weighed 350 to 400 pounds. Grievant testified it weighed around 168 pounds. The Plant Manager told Grievant that he had the hoist clamps in an inverted lift position, and that it was unsafe to lift the unit that way. At the ends of the hoist chains on the crane there are clamps with teeth which are used to grip the unit being lifted. These clamps are referred to as dogs. Company witnesses testified that Grievant had the dogs attached to the unit he was lifting in an inverted position. The Company claims that there is danger that the dogs will slip off when they are attached from underneath (inverted). The Company asserts that it is unsafe to invert the dogs, and it has stressed this to all employees in safety meetings.
The Company claims that Grievant responded to the Plant Manager that he knew it was the wrong way to lift but thats the way we do it, and he had been instructed to do it that way by supervisors. When the manager replied that was not the correct way to use the dogs, according to Company witnesses, Grievant became belligerent and a heated argument ensued between Grievant and the Plant Manager. The Company asserts that when Grievants voice became very loud, almost screaming, the manager felt that something was wrong with Grievant and he ordered him to take a drug test.
The Grievant admits that he got angry with the manager because he thought the company was singling him out and picking on him. He also claims the manager first told him he should he fired. He testified he got nose to nose with the manager because the manager yelled at him and mentioned firing him.
The Company has a published Drug and Alcohol Abuse Policy. It provides that the Company may require an employee to take an alcohol or drug test if the Company has cause to suspect an employee of possession or use of alcohol or illegal drugs on the job, or if the Company has cause to believe an employee is under the influence of alcohol or drugs or is not capable of safely performing his job.
Grievant was given a drug test and suspended for the balance of the shift. The drug test came back later as negative. A grievance was filed and processed through the steps resulting in this arbitration.
POSITIONS OF THE PARTIES
The Company
The Company contends that Grievant was committing an unsafe act when he was stopped by supervision, and at that time Grievant became argumentative and belligerent and shouted at the supervisor, got in his face and spit on him. The Company argues that because of such behavior the Company sent Grievant to take a drug test in accordance with its drug abuse program. The Company then suspended Grievant for the balance of the shift because of his insubordinate behavior and unsafe act.
According to witnesses for the company, Grievant was not following a safe practice in inverting the dogs. It was convincingly demonstrated that lifting the unit that way can be hazardous. Grievant testified that he fastened the dogs underneath because the top was filled with shot from the machine He is supposed to remove the shot with brush or shovel and then attach the dogs in the proper way. The Company asks that the grievance be denied.
The Union
The Union contends that the Company has not proved that the manner in which Grievant was using the dogs was unsafe or that such justified a drug test and a suspension without pay.
The Union further contends that the Company did not have probable cause to believe that Grievant was under the influence of illegal drugs just because he became angry and argued with a supervisor. The Union argues that the supervisor provoked Grievant by threatening to fire him.
The Union also argues that the negative result of the drug test shows there was not probable cause for testing Grievant, and the Company was wrong in suspending him.
The Union asks that Grievant be made whole.
APPLICABLE CONTRACT LANGUAGE
Section 6Management PrerogativesShop Rules
A) The parties signatory to this agreement recognize and agree that nothing
contained in this agreement is intended or shall be construed as a waiver of
any of the usual inherent and fundamental rights of the company including the
right to manage the operation of its plant(s) and business, (and) direct its working
forces. . . . It is specifically understood that all rights and functions belonging
either to the Company or the Union which are not specifically limited by the
provisions of this agreement shall remain with the Company and the Union
respectively.
B) The Company shall have the right . to suspend, discipline or discharge for
proper cause.
C) The Company shall have the right to establish, maintain and enforce
reasonable rules and regulations to assure orderly plant operations, it being
understood and agreed that such rules and regulations shall not be inconsistent
or in conflict with the provisions of this agreement.
PERTINENT PROVISIONS OF COMPANY DRUG AND ALCOHOL
ABUSE PROGRAM
So that you will know in advance how the company proposes to administer a pro-
gram to control alcohol and drug abuse in our plant, you are advised as follows:
1. If the company has cause to suspect an employee of possession or use
of alcohol, illegal drugs or other controlled substances while on the job or on
company premises (including parking lots and private roads on Company
property) or if the company has cause to believe an employee is under the
influence of alcohol or any controlled substance and or is not capable of safely
performing his or her job, the company may require the employee to take an
alcohol and/or drug test.
....................................................................................................
DISCUSSION QUESTIONS:
1. In your view, did the actions of the company in requiring Grievant to take a
drug test and in suspending him for the balance of the shift violate the contract?
Why or why not? If yes, what should be the remedy?
2. In your \ mew, did the company have reasonable cause to require Grievant to be
given a drug test?
3. Was it proper for the company to suspend the employee for the balance of the
shift because of the drug test?
4. Discuss the issues of plant safety and drug testing.