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and
Amalgamated Transit Union
Local 878
116 LA (BNA) 1184
FMCS Case No. 010135/07825-6
December 16, 2001
* Selected by parties
through procedures of the Federal Mediation and Conciliation Service
On
February 20, 2000 the Amalgamated
Transit Union, Local 878, the "Union", on behalf of S__ filed
a grievance with the City of Evansville in which it claimed that the suspension
of the Grievant "and the pending request to discharge [the Grievant] are
incorrect and violate the contract". The grievance, in relevant part, went
on to state that the City "has no basis to discharge the Grievant for just
cause". The Union also filed "a notice of the second (2nd) step
grievance" on March 2, 2001 with the City. Except for the phrase
"notice of the second (2nd) step grievance" in the March 2, 2001
document, it contains the same language as the earlier grievance filed with the
City on February 20, 2001. After the City denied the grievance, it was
eventually submitted to arbitration under the Labor Agreement between the
parties.
The
Grievant was discharged from his job as a bus driver for the Metropolitan Evansville
Transit System "METS", effective February 22, 2001. The discharge
arises from events which occurred on March 21, 2000.
The Grievant was arrested with
two (2) other persons when police officers discovered the operation of a
methamphetamine laboratory, or "meth lab" in his garage at 3211
Forest Avenue in Evansville, Indiana. Police officers were dispatched in
response to an anonymous telephone call of a peculiar odor which the caller
believed came from 3211 Forest Avenue.
Officer
Michael Jolly of the Evansville Police Department who was working a second
shift, met another officer at 3211 Forest Avenue shortly after 8:00 p.m. The
Grievant's home was located in what Officer Jolly described as an
"older" residential area with private homes that are situated close
to each other. Upon arriving at 3211 Forest Avenue, the officers believed that
the unusual odor was coming from a detached garage on the property. They
proceeded to an alley immediately north of the garage where they detected a
"sweet, pungent odor" coming from the garage. Based upon his training
and experience, Officer Jolly suspected the operation of a "meth lab"
in the garage. They observed the overhead garage door was raised approximately
8 to 10 inches. Inside the garage the officers heard voices. While peering
through the window of the garage they observed "more than one (1)
person". Although it was late March, and about 40 to 50 degrees Fahrenheit
outside, a dual motor fan in the garage was constantly running.
Officer
Jolly testified that he and the other officer observed a person later
identified as the Grievant leave the garage and enter the residence at 3211
Forest Avenue. Officer Jolly was able to see the Grievant obtain
"something" from the kitchen which he placed in the pocket of his
pants.
Shortly
thereafter, the Grievant left the house and Officer Jolly stopped him, and
asked him what was going on. Upon seeing Officer Jolly, the Grievant was
"shocked" and did not answer Officer Jolly's question. He had his
hand in his pants pocket and Officer Jolly asked him to take his hand out of
his pocket and he did so. The Grievant then agreed to Officer Jolly's request
to search him. Officer Jolly found 3 or 4 clean sandwich bags in the Grievant's
pants pocket. When the Grievant was asked who else was in the garage, he
replied "nobody", according to Officer Jolly.
In light
of their prior experience and knowledge of the dangers of ether which is highly
flammable and knowing that there were persons in the garage where there was the
odor of ether, the officers decided to enter the garage and remove the persons
for their own safety.
Upon
entering the garage, the officers observed a person later identified as Lucina
Steiner using a hair dryer to clean a bowl. Klamer was standing by a workbench.
Both Steiner and Klamer were asked to step outside and they complied with the
request by the officers.
While
the officers were in the garage, they observed a "liquid fire",
several bottles that had plastic or rubber tubing which came out of the top of
the bottles, a hot plate for cooking and they smelled the presence of ether-all
items associated with the manufacture of methamphetamine.
The
garage was then "secured" which meant that no person could enter the
garage because of the risk of fire and explosion. Officer Jolly read the
Grievant the "Miranda" warning, and at his request, the Grievant
signed a form providing for the officers to search the garage. During a
conversation with the Grievant, Officer Jolly said that he told him that there
was "methamphetamine in the tool box-" he also told Officer Jolly
that "there was some ether in there * *."
The Fire
Department and narcotics detectives had already been contacted by the officers.
When the firefighters and detectives arrived on the scene, they assisted in the
investigation. The police investigation established the existence of a
"meth lab" in the garage located on the Grievant's property, which
contained paraphernalia associated with the manufacture of methamphetamine along
with a quantity of marijuana. Based on the evidence obtained, the Grievant was
arrested and charged with dealing a Schedule II controlled substance, criminal
recklessness and dealing marijuana, all of which are felonies under Indiana
law.
On March
22, 2000, the day after the Grievant was arrested, an unidentified female
called METS and reported that the Grievant would not be at work due to illness.
METS Director John Connell testified that it was only after reading a
"large article in the Evansville Press that he learned about the arrest of
the Grievant, and the meth lab" that was found on his property.
Upon
learning of the Grievant's arrest, Connell contacted Mike Duckworth, Executive
Director of Transportation and Services who in turn notified Ron Johnson, the
former Executive Director of Administrative Services. A meeting was then held
on March 23, 2000 with the Grievant, and the representatives of the Union and
City. Connell testified that at the meeting the Grievant would not discuss the
details with respect to his arrest on March 21, 2000. As a result, it was
decided by Connell, Duckworth and Johnson to suspend the Grievant without pay
pending an independent investigation by the City into the criminal charges that
were filed against him.
Some ten (10) months later, in
January, 2001, the Grievant's attorney apparently moved to suppress evidence in
the criminal court. As a result of the hearing the Judge decided that there was
not sufficient probable cause to search the Grievant's premises. The evidence
found in the Grievant's garage was determined by the Court to be inadmissible.
The charges were dismissed against the Grievant but the criminal prosecution
against the two (2) persons who were present in the garage (Steiner and Klamer)
on March 21, 2000 continued. Officer
Jolly said that the testimony which he provided at the arbitration hearing was
the same testimony he provided at the suppression of evidence hearing in
January, 2001.
A meeting was held on February
9, 2001 between Executive Director of Administrative Services George Fithian
and the Grievant. He told the Grievant that he had obtained information from
the police, including a "probable cause affidavit" which establishes
the basis for the crimes committed by the Grievant, in connection with the
"meth lab"in his garage. Fithian said that he wanted to hear the
Grievant's "side of the story". It is undisputed as Fithian stated,
that the Grievant was "reluctant to talk to him" and said he
"was not guilty".
By
letter dated February 22, 2001 to the Grievant, Fithian confirmed that they met
on February 9, 2001. He also indicated that when he asked the Grievant for
information the City should consider when making a decision about his
employment, the Grievant responded that he was not guilty and declined to offer
his "side of the story".
Furthermore, Fithian concluded his letter by stating the
following:
"As a result of the Employer's investigation into this
matter, you are hereby terminated from employment for your illegal off-the-job
misconduct of March 21, 2000. The Employer's responsibility to the public would
not be served by allowing your employment to continue. Your discharge is
effective as of the date of this letter."
These
events led to the filing of the instant grievance.
Discussion
I
ARBITRABILITY
The City
raises a threshold issue which must be addressed before the merits of the
dispute can be considered. The City claims that the grievance with respect to
the suspension of the Grievant was not timely filed under Article IV, Section 4
of the Agreement and is therefore not arbitrable.
Article
4, Section 4 (a) provides as follows:
"SECTION 4: Time Limit For Filing:
No grievance shall be entertained or processed
unless it is submitted:
a) Within ten (10) business days after the
employee concerned has become aware or should have become aware of the
occurrence of the event giving rise to the alleged grievance; except
b) If a grievance is not presented within the
time limits set forth above, it should be considered waived * *."
Section
4 (b) in relevant part, provides that "[I]f a grievance is not presented
within the time limits set forth above, it shall be considered waived". It
is undisputed that the Grievant's suspension without pay was effective March
23, 2000. The grievance was filed on February 20, 2001, some eleven (11) months
after the Grievant was suspended. Accordingly, the grievance protesting the
suspension of the Grievant was waived as set forth in Article 4, Section 4(b)
of the Agreement.
However, the grievance with respect to the
discharge of the Grievant is a completely different matter. In a letter to the
Grievant, dated March 23, 2000, both Johnson and Duckworth stated that the
Grievant was "placed on investigative suspension, without pay, while the
City investigates the felonious charge levied against you". The suspension
of the Grievant continued until February 22, 2001, when Fithian stated in a
letter to the Grievant that as a result of the "Employer's investigation *
*, you are hereby terminated from employment for your illegal off-the-job
misconduct of March 21, 2000". In that same letter, Fithian set forth that
the Grievant's discharge was effective as of the date of this letter".
(February 22, 2001).
Both the
grievance filed on February 20, 2001 and the "notice of the second (2nd)
step grievance filed on March 2, 2001 protest not only the suspension of the
Grievant, but the "pending request to discharge" him. The discharge
of the Grievant did not become effective until February 22, 2001. Accordingly,
the grievance with respect to discharge of the Grievant was timely filed in
accordance with Article IV, Section 4(a) of the Agreement.
II
THE MERITS
Having
established that the grievance with respect to the Grievant's discharge is
arbitrable, I turn to the merits of the dispute. At the outset of this
discussion, it should be noted that although he was present at the arbitration
hearing, the Grievant failed to present testimony at the hearing. As stated in
Elkouri and Elkouri, How Arbitration Works, Fifth Edition (BNA,
1997):
"It is not unexpected that the failure of a grievant to
appear and testify at a hearing of the grievance has in some cases been one of
the factors leading to the arbitrator's conclusion that the grievance lacked
merit" at page 432. See, e.g., Guerin Special Motor Freight, Inc., 48 LA
1036, 1038 (Hardy, 1997) where grievant was present but did not testify.
However,
the better reasoned view with respect to evaluating the evidence in light of
the failure of a grievant to provide testimony was stated by Arbitrator McCoy
in Southern Bell Telephone & Telegraph Co., 25 LA 270 (1955):
"I think that the inferences justifiable
from such refusal cannot be extended to an inference of guilt of the very act
with which the man is charged. . . . In other words, I think that the
inferences to be drawn from a refusal to testify are limited to evidentiary
facts, and do not extend to the ultimate conclusion of guilt or innocence which
must be drawn from evidentiary facts; they cannot supply facts of which there
is no evidence. Findings of fact must be based on credible evidence. The
failure to deny or refute incredible evidence does not change the character of
that evidence from incredible or credible". At page 273.
Thus, the failure of a grievant
to testify cannot lead to an inference of guilt when there has been no evidence
or insufficient evidence from which to draw such an inference. As stated in
Southern Bell Telephone & Telegraph: "The failure to deny or refute
incredible evidence does not change the character of that evidence from
incredible to credible". At page 273.
Before turning
to the merits of the dispute, the Union has raised several issues which must
first be addressed. The
Union contends that the City did not conduct an independent investigation or
virtually any investigation into the alleged misconduct of the Grievant before
discharging him on February 22, 2001.
In this
connection, in their March 23, 2000 letter to the Grievant, both Johnson and
Duckworth indicated that the suspension "will continue pending the outcome
of the City's investigation into your illegal off-the-job misconduct". Connell acknowledged that he
never talked to the police officers about the events of March 21, 2000 until
two (2) weeks before the arbitration hearing which took place on August 21,
2001. He said that he "attended the trial at the Courthouse".
I have inferred that Connell's reference to a "trial" is to the
hearing on the motion to suppress, which took place in January, 2001. Connell
indicated that his role in the investigation of the March 21, 2000 incident
"was to channel information" to the Department of Administrative
Services.
Fithian's "first involvement" in the case occurred in
January, 2001. He said that he was informed of the Grievant's suspension and
was aware that the criminal charges against the Grievant had been dismissed.
Fithian said that he spoke with Connell and Duckworth as to "where we
were" with respect to the suspension of the Grievant. He "pulled the
file" on the Grievant's suspension and talked with Assistant Prosecutor
Perry as to what went on in the courtroom with respect to the hearing on the
motion to suppress evidence. According to Fithian, Perry told him that the
Judge determined that the search was illegal and that the criminal charges were
withdrawn against the Grievant because of a "technicality". Fithian
also spoke to the Police Chief.
At a
meeting with the Grievant on February 9, 2001, Fithian explained to him that he
had obtained information from the police with respect to the "meth
lab" that was on his property on March 21, 2000. He also told the Grievant
about the "probable cause affidavit" that was in his file.
Fithian
went on to state that at the meeting with the Grievant, he [the Grievant] was
reluctant to talk to him and said that he was "not guilty". Except
for the meeting between Fithian and the Grievant on February 9, 2001, it is
true that no independent investigation of the events of March 21, 2000 with
respect to the meth lab found on the Grievant's property was conducted by the
City before its discharge of the Grievant, effective February 22, 2001.
However, it is difficult to
comprehend the Union's claim that the City's investigation was hardly adequate
when the Grievant was requested to give his side of the story by Fithian at the
February 9, 2001 meeting, he merely stated that he was "not guilty".
It is one thing for the Grievant not to give his side of the story while
criminal charges are pending; it is a far different matter, not to do so after
criminal charges have been dropped resulting from a suppression hearing, which
is what occurred in this case.
This brings me to the question
of whether the City has a duty to investigate or a duty to conduct an
investigation independent of the police with respect to the meth lab found on
the Grievant's property on March 21, 2000. In Lamar Construction Co., 98 LA
500(Kanner, 1992) the Arbitrator stated that the duty to investigate as a due
process right "represents a small minority view" at page 502. He went
on to state:
"* * there is no contractual duty to investigate before
discipline. Ultimately, at [the] arbitral hearing the penalty for lack of
investigation falls on the party whose position is not sustained because of
such omission". At page 502.
The
Arbitrator also stated the following:
"In my view the issue of proper
investigation is ancillary to the primary issue of just cause. If,
notwithstanding a failure by the employer to touch all the investigatory bases,
the evidence at arbitration is sufficient to prove just cause by a
preponderance of the evidence, of what consequence was the employer's failure
to properly investigate? It is the evidence produced at the arbitral hearing
upon which the decision as to just cause either stands or falls. The employer
is penalized at the arbitral hearing by its failure to investigate properly
when, by lack of evidence, it then fails to persuade the arbitrator to the just
cause underlying the discipline". At page 502
I subscribe to the views of the
Arbitrator in Lamar Construction. To require the employer to conduct a proper
investigation would generate "a morass of inconsequential issues",
such as what witnesses were interviewed, whether appropriate questions were
asked during the interviews, and whether certain evidence was not examined. As
the Arbitrator stated in Lamar Construction:
"* * A trial of such issues would lead
the arbitral hearing down excessive time-wasting paths. Assuming that the trial
of such issues resulted in a finding that there was a superficial investigation
or even a lack of it by the employer, the bottom line would still be whether
the grievant was guilty of the offense charged notwithstanding a lack of
investigation." At page 502.
The focus of this dispute is the
conduct of the Grievant on March 21, 2000. It is not whether the City has
conducted a proper investigation before it discharged the Grievant on February
22, 2001. If at the hearing the City has failed to establish by clear and
convincing evidence that the Grievant was discharged for just cause, then the
City is penalized and the appropriate remedy is issued by the Arbitrator.
Thus, it
is true that the City relied upon the arrest of the Grievant and a "large
article" in the Evansville Press to suspend the Grievant "pending the
outcome of the City's investigation into [his] illegal off-the-job
misconduct". As I have previously indicated the bulk of the City's
investigation took place after the motion to suppress the evidence was
sustained by the Judge in January, 2001. Fithian then spoke to Connell and
Duckworth and talked to Assistant Prosecutor Perry; he reviewed the Grievant's
file which included an affidavit of probable cause by Officers Tooley and Pugh
and met with the Grievant on February 9, 2001. Fithian's investigation
essentially was not independent of the police investigation; rather, it was
dependent on such an investigation, which led the City to discharge the
Grievant. As I have already concluded the City's case must stand or fall on the
evidence which it presents at the arbitration hearing.
In this connection,
various issues raised in this dispute were considered by the Arbitrator in
Wayne State University, 87 LA 953 (Lipson, 1986). In this case, the Arbitrator
sustained the discharge of a facility manager of the University's Community
Center after he was arrested and charged with possession of cocaine. The
misconduct of the grievant occurred outside working hours and off premises. The
Arbitrator in Wayne State considered issues with respect to the arrest of the
grievant, the admissibility of evidence despite the illegal seizure of evidence
which caused the evidence against the grievant to be suppressed and the
criminal charges to be dismissed, the claim that there was no indication of
on-the-job impairment and the possession of cocaine by the grievant was away
from the work site.
Turning to the facts of the
instant case, the Grievant was arrested by the police on March 21, 2000. An
arrest, however is "not the equivalent of guilt to the charges, nor should
arrest raise a presumption of guilt." Wayne State, at page 956. As
the Arbitrator stated in Wayne State, "arrest and nothing more
establishing misconduct cannot sustain a discharge". At page 956. The
issue to be addressed is whether the acts of the Grievant on March 21, 2000
which led to his arrest are subject to discipline or discharge by the
City.
In Wayne
State, the grievant was charged with possession of cocaine. On a motion to suppress, the
Court dismissed the criminal charges against the grievant because the Court
determined that the evidence against the grievant was unlawfully seized, and no
further action was taken against the grievant. Thus, there was no resolution of
the merits before the Court.
In Wayne
State, the Arbitrator addressed the vital question as to whether to consider
the evidence which was suppressed by the Court which is among the questions to
be decided in this case. In other words, am I bound by the constitutional
safeguards concerning an illegal search and seizure of evidence in resolving a
dispute under a collective bargaining agreement between the City and the Union?
As stated by the Arbitrator in Wayne State, "* * limitations on police in
seizure of evidence should not ordinarily serve to bar admission of evidence in
an arbitration proceeding". At page 956. Or, as Arbitrator Harry Dworkin properly stated, in Babcock
& Wilcox Co., 60 LA 778, 782 (1972), a court's decision to suppress
evidence because of an illegal search and seizure "does not determine, or
prescribe the arbitrator's jurisdiction or authority. The arbitrator's powers
are derived from the collective bargaining agreement; he owes primary
allegiance to the negotiated agreement".
Having
established that the City's evidence is to be considered, it is the City's
burden of proving that the Grievant was guilty of misconduct on March 21, 2000.
In this connection, I turn to the evidence presented by the City, which
consisted of the undisputed testimony of Officer Jolly and Narcotics Detective
Chris Pugh, the affidavit of probable cause the various photos of the meth lab
in the garage which were taken on the evening in question and other documentary
evidence submitted by the City.
Officer
Jolly's testimony was convincing. He indicated that he observed the Grievant
leave the detached garage and enter his house at 3211 Forest Avenue where
Officer Jolly observed the Grievant in the kitchen taking something which he
placed in his pants pocket. The Grievant left his house and proceeded towards
his garage when he was stopped by Officer Jolly. Officer Jolly was given
permission by the Grievant to search his pockets and Office Jolly found 3 or 4
clean sandwich bags. I have inferred that the sandwich bags were to be used
with respect to the meth lab activities in the garage.
I have
concluded that in answer to officer Jolly's question as to "who else was
in the garage", the Grievant lied when he said "nobody". The
Grievant had left the garage shortly before he was stopped by Officer Jolly. At
the time, the police officers had observed two (2) persons in the garage.
It is undisputed that the police
officers and firefighters found various items in the garage, and the presence
of the odor from ether, all of which are consistent with the illegal
manufacture of methamphetamine. It is undisputed that the Grievant disclosed to
Officer Jolly that methamphetamine was in a tool box along with some ether.
The
testimony of Officer Jolly and Detective Pugh is consistent with the details
set forth in the affidavit of probable cause that was signed by Detectives Tooley
and Pugh on March 22, 2000. The various items and paraphernalia contained in
the garage which was depicted in the photos taken by the Police Department's
Crime Scene Unit are consistent with the operation of a meth lab** as indicated
by Detective Pugh.
** The evidence included plastic bottles, glass jars
with aquarium tubing, sulphuric acid based drain cleaner, salt, ether, hot
plate, beakers, acetone, 16 empty and 3 full bottles of Ephedrine
Pseudoephedrine and 42.77 grams of marijuana.
Based upon
the evidentiary record, I have inferred that the Grievant was a willing and
voluntary participant in the operation of a meth lab. Had the criminal charges
been resolved on its merits, I believe that the Grievant would have been
convicted of dealing a Schedule II controlled substance, criminal recklessness
and dealing marijuana, all of which are felonies in the State of Indiana.
III
OFF-DUTY
MISCONDUCT
In
determining whether an employer may discipline an employee for off-duty
misconduct, the Arbitrator in W.E. Caldwell, 28 LA 434 (Kesselman, 1957) set
forth three (3) factors which are widely accepted and cited:
"1) behavior harms Company's reputation
* *
2) behavior renders employee unable to
perform his duties * *
3) behavior leads to refusal, reluctance or
inability of other employees to work with him * *." At pages 436-437.
Connell
said that he became aware of the reason for the Grievant's failure to report to
work on March 22, 2000 when he read about his arrest in a "large
article" in the Evansville Press. However, Connell did not indicate
whether the "large article" in the newspaper referred to the
Grievant's employment as a bus operator for METS. As a result, I cannot
conclude that adverse publicity about METS was generated by the article in the
local newspaper. Connell acknowledged on cross-examination that he did not have
a copy of the newspaper article with him, at the hearing. Accordingly, I cannot
conclude that the Grievant's off-duty misconduct harmed the reputation of METS.
The remaining two (2) factors set forth in the Caldwell decision are not
applicable.
There is
another principle, however relating to off duty misconduct which I have
concluded is applicable to the facts of this case. In American Airlines, 68 LA
1245 (Harkless, 1977) the Arbitrator stated "An employer is not prevented
from disciplining its employees for off-duty conduct which involves or affects
the employer-employee relationship. [Emphasis added]. At page 1247.
In the
American Airlines case, the Grievant, a Flight Attendant was convicted of
shoplifting, was fined and then placed on probation by the Court. Upon
receiving notification of the conviction, the Employer discharged the Grievant.
The Arbitrator who chaired the System Board of Adjustment reinstated the
employee without back pay, while stating the following:
"An employer is not prevented from
disciplining its employees for off-duty conduct which involves or affects the
employer-employee relationship. However, an employer would not be justified in
imposing discipline of an employee where her off-duty conduct is not related to
her employment. In this instance, the Court determined that the grievant
committed a criminal offense of shoplifting from a department store. The
grievant was off duty, she was not dressed in uniform, and there was no
publicity concerning the incident. Therefore, the Company was not directly
harmed by the grievant's unlawful act of dishonesty. Despite this, however, the
grievant held a responsible position with the Company serving the public.
Consequently, the Company was entitled to have confidence in her integrity. The
grievant's reprehensible off-duty misconduct seriously undermined her
employment relationship with the Company. The Board therefore must conclude
that the grievant's criminal conviction for stealing warranted disciplinary
action." At page 1247
Based
upon the evidentiary record, the Grievant's off-duty conduct on March 21, 2000
involved or affected the employer-employee relationship. The Grievant committed
unlawful conduct by participating in the operation of a meth lab on his
property at 3211 Forest Avenue. As I have previously indicated there is no
evidence that there was publicity in the local newspaper or media which established
that the Grievant was employed by METS as a bus driver. Therefore it cannot be
said that the City was directly harmed by the Grievant's unlawful conduct.
However, the Grievant held a more responsible position with the City than the
grievant in American Airlines held with her employer. As a bus driver, the
safety and care of the riding public was entrusted to the Grievant. The City is
entitled to have confidence in the Grievant's judgment and that he would not
commit unlawful conduct which would endanger the lives of the very citizens,
who are served by the City. The Grievant's reprehensible off-duty misconduct
seriously undermined his employment relationship with the City.
There is
also the process of manufacturing methamphetamine in which the Grievant was
engaged, on March 21, 2000. The process is extremely hazardous. Various
chemicals are used which are dangerous and volatile. Officer Pugh indicated
that a company specializing in environmental services was hired by the City to
remove chemicals such as sulphuric acid, ether and acetone, because these
chemicals are too hazardous to store as evidence at the police station. The
risk of an explosion is great if these chemicals are handled improperly. In a
residential area where homes (including the Grievant's home) are located close
to each other, the Grievant's conduct is nothing short of reckless. As Fithian
stated in his letter dated March 21, 2001, which served as a response to the
grievance, the "activity" involving the Grievant, "shows a total
disregard for the safety and welfare of [his] family and neighbors who are a
segment of the citizens of the City of Evansville, the employer".
In light of his highly
irresponsible unlawful misconduct, the Grievant's employment relationship with
the City has been irreparably damaged. It is difficult to comprehend how the
City could trust the Grievant with the safe and responsible operation of a
vehicle. While driving a bus, the Grievant is required to exercise unsupervised
discretion. As a public carrier, METS is held to the highest degree of care in
the operation of its vehicles.
Moreover, the City's "Drug-Free Workplace Policy", in
relevant part, prohibits the unlawful manufacture, use, distribution,
possession, sale * * during work hours or on City property". The policy
goes on to provide that "violation of this policy may result in
disciplinary action up to and including discharge * *." The policy also
provides that "[T]his (prohibition of unlawful manufacture", etc.) in
no way limits the City's ability to determine disciplinary action, for
situations not covered by this policy".
It is
unreasonable to conclude that the City is authorized to issue discipline,
including discharge for violation of the unlawful manufacture of drugs during
working hours or on City property; but, it is without authority to do so, for
example, shortly after an employee leaves work and engages in the unlawful
manufacture of drugs on the scale which the Grievant did in this case in his
garage.
I have
concluded that consistent with the Wayne State and American Airlines decisions,
the Grievant has irrevocably damaged the employer-employee relationship. The
Grievant's reprehensible conduct has seriously undermined any trust and
confidence in his continued employment as a bus driver, in light of the
responsibilities of the job which is owed to the riding public.
As in
the Wayne State and American Airlines decisions, the Grievant has successfully
handled his job in the past. He has never been disciplined for a violation of
the City's drug policy, despite being subject to random drug tests on various
occasions. There is nothing in the evidentiary record to indicate that the
Grievant's driver's license has been suspended or been in jeopardy. He has had
several infractions in the past, which apparently the City has not considered
in its decision of discharge. Despite the Grievant's record, his misconduct on
March 21, 2000, which but for the illegal search, would have resulted in a
conviction for various felonies associated with the operation of a meth lab had
the criminal case proceeded to trial.
Accordingly, the City proved by clear and convincing evidence that
the Grievant was discharged for just cause.
The
grievance is denied.
In light of the aforementioned
considerations, the City proved by clear and convincing evidence that the
Grievant was discharged for just cause.
The
grievance is denied.
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