AlA. l between UNITED STATES POSTAL SERVICE. and. BEFORE : Gary L. Axon, ARBITRATOR APPEARANCES : For the U. S. Postal Service : For the Union :

Transcription

1 REGULAR ARBITRATION PANEL In the Matter of the Arbitration between UNITED STATES POSTAL SERVICE and NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO l5 515 AlA ) ( GRIEVANT : JAY WOLODIGER ) ( POST OFFICE : PASADENA, CA ) ( CASE NO : F90N-4F-D ) F90N - 4F-D ( F90N - 4F-C ) F90N - 4F-C ( F90N - 4F-C GTS # BEFORE : Gary L. Axon, ARBITRATOR APPEARANCES : For the U. S. Postal Service : William E. Bowling For the Union : Leroy Collier Place of Hearing : Pasadena, California Date of Hearing : March 19, 1996 and April 18, 1996 AWARD The Arbitrator awards as follows. Grievance F90N - 4F-D challenging the emergency placement is denied. Grievances F90N-4F- D , F9ON - 4F-C , F90N-4F - C and F90N-4F-C are sustained. The Postal Service is ordered to reinstate Grievant but without back pay and benefits. The Last Chance Agreement shall be extended for an additional one-year period to a total of four years. If Grievant is proven to have violated any of its terms, the Postal Service is free to implement the Last Chance Agreement and remove Jay H. Wolodiger from the Postal Service. Date of Award : June 8, 1996

2 I I. STATEMENT OF ISSUE read as follows : The parties stipulated to a statement of the issues which 1. Did the Postal Service violate the Last Chance Agreement when is subjected Grievant to random drug tests on December 13, 1994? 2. Did the Postal Service violate the Last Chance Agreement when it sent Grievant for a fitness for duty examination on December 16, 1995? 3. Did the Postal Service violate the National Agreement when it placed Grievant on emergency suspension as the result of a random drug test on May 31, 1995? 4. Did the Postal Service violate the Last Chance Agreement when it removed Jay H. Wolodiger from the Postal Service as the result of a random drug teat on May 31, 1995? 5. If not, what is the appropriate remedy? The Union also grieved a random drug test of Grievant taken on March 10, Case No. F90N-4F-C was settled because it raised the same issues as Case No. F90N-4F-D Un. Ex. U-B. The settlement agreement provided this case would be resolved the same as the ultimate resolution of Case No. F90N-4F-D

3 Y II. RELEVANT CONTRACTUAL PROVISIONS Section 1. Principles ARTICLE 16 DISCIPLINE PROCEDURE In the administration of this Article, a basic principle shall be that discipline should be corrective in nature, rather than punitive. No employee may be disciplined or discharged except for just cause such as, but not limited to insubordination, pilferage, intoxication (drugs or alcohol), incompetence, failure to perform work as requested, violation of the terms of this Agreement, or failure to observe safety rules and regulations. Any such discipline or discharge shall be subject to the grievance -arbitration procedure provided for in this Agreement, which could result in reinstatement and restitution, including back pay. Section 7. Emergency Procedure An employee may be immediately placed on an off-duty status (without pay) by the Employer, but remain on the rolls where the allegation involves intoxication ( use of drugs or alcohol), pilferage, or failure to observe safety rules and regulations, or in cases where retaining the employee on duty may result in damage to U.S. Postal Service property, loss of mail or funds, or where the employee may be injurious to self or others. The employee shall remain on the rolls (nonpay status ) until disposition of the case has been had. If it is proposed to suspend such an employee for more than thirty ( 30) days or discharge the employee, the emergency action taken under this Section may be made the subject of a separate grievance. 3

4 III. STATEMENT OF FACTS Grievant Jay Wolodiger was employed as a letter carrier for the Postal Service at the Pasadena, California Post Office. His craft seniority date is September 11, In September 1991 Grievant was removed from the Postal Service for mishandling of mail and possession of a controlled illegal substance ( Marijuana). The Union filed a grievance challenging the 1991 removal. On June 17, 1992, the parties entered into a Last Chance Agreement to resolve the 1991 removal grievance. Jt. Ex. 1, pp. 22, 23. The Last Chance Agreement provided as follows : The following sets forth the express agreement of the parties herein as to the resolution and settlement of grievance #P217-91D which relates to the Notice of Removal issued to Jay Wolodiger dated September 11, 1991, charging Mishandling/ Unauthorized Possession of Mail for Personal Use and Possession of a Controlled Illegal Substance ( Marijuana). In resolution, Mr. Wolodiger following terms. agrees to the 1. The Notice of Removal dated September 11, 1991 is hereby affirmed as just and proper. 2. Mr. Wolodiger agrees to meet the requirements of his state mandated probation to include a program for the treatment of alcohol and narcotic addictions or drug dependency which may include random drug testing. 3. Mr. Wolodiger will continue to comply with any recovery program as deemed necessary by the Employee Assistance Program Counselor (RAP). 4. Mr. Wolodiger will sign a medical information release so that the EAP 4

5 counselor may monitor the state mandated drug program. 5. Any incident of being under the influence of a controlled substance unless prescribed by a physician will be considered as a breach of this contract and will result in Mr. Wolodiger's removal from the Postal Service. 6. The removal notice will be held in abeyance for three ( 3) years from the date of this agreement. The time period between August 20, 1991 and the signing of this agreement will be considered leave without pay. 7. Grievant must maintain satisfactory punctuality and attendance. 8. Mr. Wolodiger is to follow the safety rules and regulations while in the performance of his duties. 9. This agreement is based on the particular circumstances of this case only and is not to be used to set precedent or to be cited for any case or cases of similar nature. It is understood that this is a last chance agreement. The last chance agreement gives Jay Wolodiger a last chance opportunity to demonstrate that he can be a productive and dependable employee. Failure on the part of Jay Wolodiger to adhere to this agreement will result in his removal from the Postal Service. This agreement is executed by all parties willingly and freely, without coercion. Jt. Ex. 1, pp. 22, 23 ; emphasis added. On August 20, 1993, the Postal Service issued Grievant a Notice of Removal for violation of the attendance provision of the Last Chance Agreement. The Union grieved, and the case was arbitrated on September 21, 1994, before arbitrator Carlton Snow. In an award dated October 26, 1994, arbitrator Snow found the 5

6 Postal Service did not have just cause to remove Grievant breach of the Last Chance Agreement. it. Ex. 1, p. 26(A). for The reinstatement was without back pay and benefits. The result of the decision was to convert the removal to a suspension without pay. The Last Chance Agreement was left in place by the Award of arbitrator Snow. Postmaster Robert Mysel ordered Grievant to report for work on November 9, In a letter to Grievant, Mysel advised him that the Last Chance Agreement would be strictly enforced. it. Ex. 1, pp. 53, 54. On December 13, 1994, Grievant was taken to the Sierra Madre Medical Clinic for a drug test. Dr. William white collected a urine sample from Wolodiger. The sample was sent to the Physicians Clinical Laboratory for testing. Physicians Clinical Laboratory reported a negative test result for any controlled substances. The Union challenged the December 13, 1994, drug test as violating the terms of the Last Chance Agreement and past practice. it. Ex. 1, p. 57. The grievance was denied by management on the ground Grievant was subject to testing under the EAP program and Section of the ELM. it. Ex. 1, p. 58. The case was advanced to arbitration as Case No. F90N-4F-C On December 16, 1994, Grievant was sent to Dr. White for a fitness for duty examination. Dr. White evaluated Grievant's physical condition, but did not test him for drugs. The Union grieved the sending of Wolodiger for a fitness for duty examination as a violation of the Last Chance Agreement. Management denied the 6

7 grievance on the basis it has the right to determine if Grievant was medically able to perform all aspects of his job. it. Ex. 1, p. 59. The fitness for duty case was advanced to arbitration as Case No. F90N - 4F-C On March 10, 1995, Grievant was again tested for drugs. The test results were negative. This test was also grieved by the Union. The case was settled because it was identical with Case No. F90N-4F-C '. Un. Ex. B. The Postal Service ordered Grievant to take another drug test on May 31, Postmaster Mysel testified this test was ordered based on the Last Chance Agreement and Wolodiger's past history with the Postal Service. Dr. White collected the urine sample and sent it to Physicians Clinical Laboratory for testing. Physicians Clinical Laboratory advised Dr. White that the EMIT test showed a positive result for THC. Jt. Ex. 1, p. 1. The test showed 50 NG of THC in Grievant' s urine. The EMIT test is the preliminary test used to determine if drugs are present in the urine. Physicians Clinical Laboratory conducted a second test of Grievant ' s urine. The GCMS test confirmed the presence of THC in Grievant ' s urine at 160 NG /ML. Jt. Ex. 1, p. 2. Dr. White advised the Postal Service Wolodiger had tested positive for marijuana. Dr. White characterized the test result as " strongly positive." Manager David Lopez issued an Emergency Placement In Off- Duty Status letter to Grievant dated June 2, Lopez wrote : 7

8 In accordance with Article 16.7 of the National Agreement, you are hereby placed in an off-duty status (without pay). The reason for this action being taken is : CHARGE : POSITIVE DRUG TEST RESULTS On May 31, 1995, you were sent for a drug screen test as per your 3 year last chance agreement signed June 17, Oral information received from Dr. White at Sierra Madre Medical Group, who supervised the testing, indicates that you tested positively for marijuana. In Dr. White's words, you tested "strongly positive". It is believed your retention in a duty status may result in injury to yourself or others. Your placement in off-duty status will commence on Saturday, June 3, 1995, at your normal starting time. You have the right to file a grievance under the grievance / arbitration procedure set forth in Article 15, Section 2 of the National Agreement within 14 days of your receipt of this notice. at. Ex. 1, p. 3. The Union grieved the Emergency Placement as not for just cause and did not protect anyone from injury at. Ex. 1, p. 5. Management denied the grievance alleging the positive test for drugs required placing Grievant in a non - duty status. Postal Service reasoned continuing him in employment would endanger the health and welfare of other employees and the public. at. Ex. 2, p. 9. The Emergency Placement grievance was advanced to arbitration as Case No. F90N - 4F-D On June 29, 1995, Manager Lopez removed Grievant from the Postal Service for "Unacceptable Conduct /Reporting for Duty While Under the Influence of a Controlled Substance." at. Ex. 1, p. 10. The notice of removal stated in relevant part : 8

9 On May 31, 1995, you were sent to Sierra Madre Medical Group for a fitness for duty exam. This exam was scheduled as per of the Employee and Labor Relations Manual (ELM), which states " Management can order fitness for-duty examinations at any time and repeat, as necessary, to safeguard the employee or coworker. Specific reasons should be stated by the referring official." As per section 5 of a three Year last chance agreement that you entered into on June 17, 1992, part of this exam consisted of a urinalysis screen for drugs. Oral information received later that day revealed you had tested positive for marijuana. In the words of Dr. White, the testing physician, you tested "strongly positive ". The written report from Sierra Medical Group, received on June 8, 1995, confirmed you were under the influence of marijuana. You tested 160 NG/ ML, which indicates a very high level of Cannabinoids in your bloodstream at the time you were tested. On June 15, 1995, an investigative interview was held to give you an opportunity to explain the positive test result. You stated that you had no explanation. You did not deny that you have been using a controlled substance or that you had reported to work under the influence of a controlled substance. Postal Employees are expected to report for duty ready, willing and able to perform their duties. This is especially critical for letter carriers who are expected to drive on public streets in the course of their duties. An employee with driving duties reporting under the influence of drugs clearly represents a danger to himself, other employees, and postal customers. Section of the Employee and Labor Relations Manual states : " Illegal Drug Use. Illegal use of drugs may be grounds for removal from the Postal Service." Additionally, the Van Nuys District Work Rules and Rules of Conduct state : " 26. Being under the influence of a foreign substance/alcohol on postal premises is GROUNDS FOR REMOVAL." Section 5 of the last chance agreement which you entered into as a resolution to a removal 9

10 which involved a charge of Possession of marijuana on Postal Premises states : "Any incident of being under the influence of a controlled substance, unless prescribed by a physician will be considered as a breach of this contract and will result in Mr. Wolodiger ' s removal from the Postal Service. The following elements of past record has been considered in taking this action : 08/20 / week Suspension Failure to Comply with Last Chance Agreement 08/26 / 92 2 day Suspension F a i l u r e t o F o 1 1 o w Instructions / Mishandling Mail 07/31 / 92 1 Day Suspension Failure to Follow Instructions/AWOL 09/11 / week Suspension / Unauthorized Possession of Mail for Personal Use/ Last Chance Agreement Possession of Controlled Illegal Substance ( Marijuana) Jt. Ex. 1, pp. 10, 11 ; emphasis added. The Union filed a contract grievance challenging the May 31, 1995, drug test. The contract grievance alleged : The random drug testing by the Postal Service appointed medical personnel violates the terms of the Last Chance Agreement and past practice between the NALC and the Postal Service. it must be noted that the grievant has completed the requirement of Number 5 of the Last Chance Agreement effective 1/28/93. Jt. Ex. 1, p. 70. As the remedy, the Union requested Postal Service to cease and desist the drug testing of Wolodiger. The Postal Service denied the grievance on the ground it had cause to send Wolodiger for the test, which he failed. Jt. Ex. 1, pp The Union elevated the challenge to the May 31, 10

11 1995, drug test to arbitration. The grievance was referred to as Case No. F90N -4F-D The Union also protested the removal in a separate grievance alleging : Management violated their own rule when collecting information about this grievant. There was no reasonable cause to drug test the grievant. The removal notice is procedurally defective. The discipline was directed by higher level Management. Jt. Ex. 1, p. 12. The grievance was denied at Step 2. The reasoning was as follows : On May 31, 1995, the Grievant was sent to Sierra Madre Medical Group for a fitness for duty examination. This examination was scheduled per Section of the ELM. Per Section 5 of a three year last chance agreement, which the Grievant entered into on June 17, 1992, part of this examination consisted of a urinalysis screen for drugs. Oral information received later that day revealed that the Grievant tested positive for marijuana. This is a clear violation of the last chance agreement. Jt. Ex. 1, p. 13. The Step 3 decision confirmed the Step 2 decision and added that the drug test was given to determine Wolodiger ' s fitness for duty. Jt. Ex. 1, pp Because of the high level of marijuana in his system, the Step 3 official decided Grievant was unfit for duty. Since Item 5 of the Last Chance Agreement subjected Grievant to removal for any incident of being under the influence, the Postal Service concluded removal was compelled by 11

12 the Last Chance Agreement. The removal grievance was processed to arbitration as Case No. F90N-4F - D James Brouillard, Manager of Operations, testified to the circumstances surrounding the September 1991 removal of Wolodiger and resolution of the grievance with the Last Chance Agreement. Brouillard explained that at a meeting held on June 17, 1992, concerning the Last Chance Agreement, he told Wolodiger the Postal Service would be able to test him at any time the Postal Service wanted, and that random testing was a condition of the Last Chance Agreement. According to Brouillard, he told Wolodiger that if he would not agree to random testing, there would be no Last Chance Agreement. The bottom line for Brouillard was that random drug testing was a condition to his signing the Last Chance Agreement. The 1992 Last Chance Agreement was prepared and drafted by the Postal Service and presented to Wolodiger for his signature. Wolodiger singed the Last Chance Agreement which was included in the record as Jt. Ex. 1, pp. 22, 23. Dr. White testified regarding the taking of the urine samples of May 31, According to Dr. White, he observed Grievant give the sample into a receptacle. Dr. White testified he poured the sample into a container for shipment to Physicians Clinical Laboratory. The container was then sealed. White next stated that both he and Grievant initialed the seal which was then placed on the container. Further, Dr. White related that Wolodiger signed a written statement affirming the urine sample was his. 12

13 Dr. White next testified the sealed container was sent by courier to the Physicians Clinical Laboratory for evaluation. The sample was tested and the EMIT test showed the presence of THC. Physicians Clinical Laboratory alerted Dr. White to the test results which showed in excess of 50 NG of THC in the urine. Dr. White explained that Physicians Clinical Laboratory performed a second test referred to as the GCMS. The GCMS confirmed that 160 NG/ML of THC was present in Grievant's urine. The Physicians Clinical Laboratory reports were sent to Dr. White who forwarded the test results to the Postal Service. Jt. Ex. 1, pp. 1, 2. Dr. White claimed the GCMS test was an extremely reliable measure of drugs in the system. He referred to Grievant's test level of 160 NG as an "extremely high" level of cannabinoids in the system. Dr. White concluded that at this high level, Grievant's judgment would be impaired. Postmaster Mysel, who was the concurring official on the removal, voiced considerable frustration at the arbitration hearing over the repeated unsuccessful attempts to correct Grievant's behavior and attempts to remove him from the Postal Service. According to Mysel, the positive drug test was the reason for the removal as it violated the Last Chance Agreement. Mysel expressed that Grievant had more chances than any other employee in the office to show that he could conform to Postal Service expectations. Regarding the drug test of May 31, 1995, Mysel stated Wolodiger was sent for the test based on the Last Chance Agreement 13

14 and his past history with the Post Office. There were no specific complaints identified by Mysel which prompted the decision to have Wolodiger tested on May 31, Mysel concluded that he based his belief that Grievant was subject to random testing on conversations with Brouillard and his review of the Last Chance Agreement. Grievant Wolodiger testified in his own behalf at the arbitration hearing. According to Wolodiger, the proposed Last Chance Agreement was read to him with no explanation. Grievant denied that random drug testing by the Postal Service was discussed. Grievant did acknowledge that under Item 2 of the Last Chance Agreement he was subject to random drug testing by the state of California as part of their drug program. Grievant satisfactorily completed the state program. It was Grievant's belief that once he completed that program, there would be no more random drug testing by the state or the United States Postal Service. Regarding the May 31, 1995 test, Grievant could not explain why he testified positive for THC. He offered that the test might have been affected by his eating poppy seed bagels, drinking of herbal tea or the use of over the counter drugs. After giving the sample on May 31, 1995, Grievant explained he was not concerned about the results of the test. Grievant next described the circumstances by which he was taken to Dr. White' s office to give a sample. Brown came to him on May 31, 1995, and told him Supervisor James they were going to 14

15 Dr. White' s office for a drug screen. Brown gave no reasons to Grievant why he was being required to take the test on May 31, At the medical clinic, Grievant stated he was given a pitcher by Dr. White to provide a urine sample. After he gave the sample, Grievant related that Dr. White poured the sample into a plastic cup. Grievant testified the cup sat on the counter for 5-10 minutes before Dr. White poured the sample into a smaller medicine bottle sized container. He initialed the seal on the bottle and left the office. Grievant could not recall signing a separate paper affirming the urine sample was his. Dr. Joan Chen Hsu, Phd., Chemistry Department Manager for Physicians Clinical Laboratory, testified on behalf of the Postal Service. Dr. Hsu described the procedures utilized by Physicians Clinical Laboratory to test for drugs and how they maintain the chain of custody. Dr. Hsu prepared a "litigation package" containing documents relating to Physicians Clinical Laboratory's handling of Grievant ' s test. PS Ex. A. The documents and Dr. Hsu confirmed Grievant had tested positive for marijuana. In conclusion, Dr. Hsu testified they only test for the presence of drugs in the system. The test cannot tell if the person is impaired. Dr. Hsu disclaimed any of their testing purported to measure impairment of the person being tested. Dr. Hsu also explained that eating poppy seeds will not cause a positive test for marijuana. 15

16 On the second day of hearing the Postal Service called a representative of Physicians Clinical Laboratory to testify about the drug testing and in particular Grievant' s test. Union representative Clyde Walters testified he was at the meeting on June 17, 1992, where the Last Chance Agreement was discussed and signed. Walters stated Brouillard went over the proposed Last Chance Agreement on a point by point basis. Walters denied Brouillard stated anything about subjecting Grievant to random drug testing by the Postal Service separate from a fitness for duty examination. At the conclusion of the arbitration hearing the Postal Service stipulated that the drug testing of Grievant was conducted pursuant to the Last Chance Agreement and not ordered based on any provision of the ELM. Specifically, Sections and were not a basis for the testing of Grievant on May 31, The Union agreed it would not argue in the post-hearing brief that Postal Service violated either of these provisions of the ELM. The five cases were consolidated for arbitration before this Arbitrator. The initial hearing was held on March 19, 1996, and continued to April 18, Both parties were given the full and complete opportunity to present evidence and argument in support of their respective positions. Post-hearing briefs were timely filed. The five grievances are now properly before the Arbitrator for decision. 16

17 IV. POSITIONS OF THE PARTIES A. The United States Postal Service The Postal Service takes the position that all of the random drug tests required of this Grievant were done within the authority of the Last Chance Agreement. According to the Postal Service, Item 5 specifically subjected Grievant to random drug testing. in addition, at the time Grievant and his representative met with Postal Service officials on June 17, 1992, Brouillard told Grievant he would be subject to random drug testing. Brouillard also told Grievant that he would not sign the agreement if it did not include a provision for random drug testing. Therefore, the May 31, 1995, random drug test was proper under the terms of Item 5 of the Last Chance Agreement. The Postal Service next argues that Dr. White properly collected a sample of Grievant ' s urine. Dr. White handled the specimen properly and sent it to Physicians Clinical Laboratory for testing. After receiving the results of the test from Physicians Clinical Laboratory, Dr. White told the Postal Service that Grievant tested "strongly positive " for marijuana. At the arbitration hearing Dr. White offered that at a level of 160 nanograms, he believed Grievant was under the influence of marijuana on May 31, Dr. Hsu testified credibly that Grievant ' s urine specimen was properly secured and analyzed at her laboratory. The written documentation concerning the test of Grievant ' s urine sample confirms that it was properly conducted according to scientific procedures. Dr. Hsu also rebutted 17

18 Grievant ' s testimony that poppy seeds could influence the result of the drug test. Based on the testimony of Dr. White and Dr. Hsu, the Arbitrator should reject the Union ' s claim that the drug testing performed on Grievant ' s urine sample was flawed. The Arbitrator should hold that the drug testing was properly conducted by Physicians Clinical Laboratory and that the positive test for marijuana in Grievant ' s urine specimen was valid. Emergency Placement Article 16.7 of the National Agreement allows an employee to be placed in Emergency Off-Duty Status where an allegation involves intoxication ( use of drugs or alcohol ) or in cases where retaining the employee on duty may result in damage to U.S. Postal Service property, loss of mail or funds, or where the employee may be injurious to self or others. The results of Grievant ' s May 31, 1995, drug test provided valid evidence of Grievant ' s intoxication and use of drugs. According to the Postal Service, Grievant was under the influence of marijuana which could have resulted in a number of adverse situations to both Grievant and the Postal Service. Thus, the Postal Service met the criteria of Section 16.7 when the Grievant was placed on off - duty status. Removal The Postal Service begins by noting that this case is not controlled by the just cause provision of the National Agreement. The issue in this case is whether Grievant violated the Last Chance 18

19 Agreement he signed on June 17, The Postal Service asserts that Grievant violated the Last Chance Agreement in four major ways. First, Item 2 required the Grievant to meet the obligations of his state mandated probation program. Item 2 required the Grievant to stay clear of drugs. The positive test for marijuana on May 31, 1995, demonstrated he violated his commitment to the state mandated probation program and thus the Last Chance Agreement. Second, Item 3 of the Last Chance Agreement requires that Grievant continue to comply with any recovery program as deemed necessary by the Employee Assistance Program counselor. By testing positive for marijuana on May 31, 1995, Grievant failed to comply with his recovery program. Third, Item 8 of the Last Chance Agreement requires Grievant to follow safety rules and regulations while in the performance of his duties. Based on the medical opinion of Dr. White, the Postal Service submits Grievant was under the influence of an illegal substance on May 31, Therefore, when Grievant reported for duty while under the influence of marijuana, he violated Postal Service safety rules. Fourth, Item 5 of the Last Chance Agreement unconditionally states : 5. Any incident of being under the influence of a controlled substance, unless prescribed by a physician will be considered as a breach of this contract 19

20 and will result in Mr. Wolodiger's removal from the Postal Service. The results of the drug test of May 31, 1995, unconditionally established that Grievant had used marijuana. The testimony of Dr. White demonstrated that Grievant was under the influence of a controlled substance while on postal property. There is no other medical opinion to refute Dr. White ' s testimony concerning Grievant being under the influence on May 31, It is also the position of the Postal Service that Grievant violated Section of the ELM by his use of illegal drugs. There can be no dispute that the test proved Grievant violated Section Moreover, the evidence also demonstrated that Grievant violated the work rules and rules of conduct published for Postal Service employees at the Van Nuys Division. PS Ex. M-C. Rule 26 states that being under the influence of a foreign substance / alcohol on postal premises is "GROUNDS FOR REMOVAL." As described above, the Grievant was under the influence of marijuana on May 31, argument : The Postal Service closed in its brief with the following There can be no dispute that each of the above LCA violation, standing alone, warrant the grievant' s removal from the Postal Service, based on the expressed agreement reached therein. Even if the Arbitrator threw out the results of the May 31st drug test, he cannot set aside 20

21 the grievant's testimony as mentioned in 1, 2, and 5, above. However, the Postal Service argues the May 31st drug test cannot be thrown out because item 5 of the LCA is unconditional as to what, or, which incident of being under the influence of drugs will warrant Removal. Item 5 of the LCA says, `Any incident... The grievant has severely broken his trust with the Postal Service. The grievant's violations of the LCA clearly warrant his Removal and the Arbitrator is compelled to deny this Removal action. (F90N4F - D ). The Arbitrator must also deny the grievance involving the Emergency Placement based on the May 31st drug test results alone, but also, supported by Dr. White's medical testimony on how strongly the grievant tested for Marijuana. (160 nanograms and that much would cause him to be under the influence). The grievant, himself, chose to violate his LCA which resulted in his Removal. Unfortunately, that choice must go with dire consequences. This is not a legal issue. This is a question of whether the grievant violated his LCA. The answer has to be, "YES[" Brief, p. 9 ; emphasis in original. B. The National Association of Letter Carriers The Union contends Postal Service did not have the right to subject Grievant to random drug testing under the Last Chance Agreement. At the arbitration hearing, the Postal Service stipulated that the drug tests were not conducted pursuant to Section 864 of the ELM. Thus, the validity of the random drug testing of Grievant must stand or fall based on the expressed terms of the Last Chance Agreement. 21

22 The Union takes the position that the Last Chance Agreement did not subject Grievant to random drug testing. It was agreed that item 2 subjected Grievant to random drug testing under his state mandated probation. Grievant satisfied the terms of his stated mandated probation. There is no express language in the Last Chance Agreement which permitted the Postal Service to subject Grievant to random drug testing. The testimony of Grievant and Union representative Clyde Walters established that Brouillard never mentioned anything about the Postal Service doing random drug testing at the July 17, 1992, meeting when the Last Chance Agreement was discussed. Moreover, the Union was well aware of the Postal Service policy on drug testing when the Last Chance Agreement was drafted and discussed. The Union points to Item 4 of the Last Chance Agreement where Grievant agreed to sign a release so that the Postal Service ZAP counselor could monitor the state mandated drug program. The Union questions why the Postal Service would want this release if they had the right to test the Grievant at any time they so desired. The Postal Service never ordered the results of any test conducted pursuant to Grievant ' s state mandated probation. It is also the position of the Union that any random drug testing requirement in the Last Chance Agreement would violate Postal Service policy. In a memo dated August 6, 1986, the Senior Assistant Postmaster General wrote to general managers and postmasters on the subject of urinalysis testing. The Senior Assistant Postmaster General wrote in relevant part : 22

23 MEMORANDUM FOR FIELD DIVISION GENERAL MANAGERS / POSTMASTERS Subject : Urinalysis Testing Recently, it has come to our attention that drug testing is being used in the field as part of the initial issuance and renewal of the SF-46, Operator's Identification Card, and in Accident Repeater Programs. Across-the-board drug testing and/or random drug testing of present employees is prohibited under any circumstances. However, on a case -by-case basis, during fitness-forduty examinations, drug tests may be administered, depending on the specific reasons for the examination as stated by the referring official and/or in the judgment of the examining medical official (see Attachment A). Additionally, drug testing in conjunction with medical assessments and evaluations as part of the Employee Assistance Program is within established procedures (see Attachment B). Furthermore, we will be issuing a policy statement on drug screening of applicants for employment in the near future. If you have further questions regarding this matter, you may contact either Harvey White of the Labor Relations Department at or Stephen A. Moe of the Employee Relations Department at Jt. Ex. 1, p. 47 ; emphasis added. The use of random drug testing by the Postal Service in Grievant's case would have violated this directive from a senior official with the Postal Service banning random drug testing. The Union submits that the Last Chance Agreement means nothing more than is written on the face of the document. By reducing the agreement to writing, there were no other elements of the Last Chance Agreement which bound either of the parties. The Arbitrator should prohibit the Postal Service from expanding the 23

24 reach of the Last Chance Agreement based on any purported oral statements of manager Brouillard. The testimony of Postal Service witnesses and the stipulation make it clear that the random test of Grievant conducted on May 31, 1995, was based. on Item 5 of the Last Chance Agreement. On May 31, 1995, Grievant was picked up from his delivery route by Supervisor James Brown and was transported to the Sierra Madre Medical Center where he provided a urine sample for Dr. White. There is no evidence in the record to support a conclusion Grievant was behaving in a manner on May 31 that would suggest Grievant was under the influence of drugs or alcohol. There were never any complaints regarding Grievant's work performance or driving performance on May 31, 1995, which would have prompted a drug test. The Union argues that Brouillard and other Postal Service managers were operating under the mistaken impression that they had the right to subject Grievant to random drug testing based on the Last Chance Agreement. If Postmaster Mysel truly believed that he had the right to subject Grievant to random drug testing, the Union questions why they waited until the last six months of the term of the Last Chance Agreement to subject Grievant to repeated drug testing. The Postal Service's mistaken belief that it could subject Grievant to random drug testing based on the Last Chance Agreement demands that this grievance be sustained. The Union also challenges the chain of custody and the validity of the drug test. The records reveal that the urine 24

25 specimen was collected from Grievant at 2 :25 p. m. on May 31, 1995, and was reported to have arrived at the laboratory at 1 :05 a.m. on June 1, 1995, approximately eleven hours later. What happened to the specimen during the eleven hour period is unknown and unaccounted for. Postal Service Exhibit A-5 shows that the "blood specimen " was taken from Grievant on May 31, However, the evidence is uncontradicted that Grievant never gave a blood specimen and that the sample he gave was urine. The failure of the chain of custody report to reveal accurately what specimen was being delivered is fatal to the drug test results. The laboratory report labels the work sequence that is allegedly the urine sample of Grievant. PS Ex. A, p. 6. This page is dated June 1, 1995, 03 :09. This list seems to assign the collected specimen to a specific work schedule or to a specific technician. Page 9 of the same exhibit lists the specimen logged in at item 23. The problem is this page is dated May 30, 1995, 16 :32, a day before any urine was collected from the Grievant. The specimen numbers were highlighted by Dr. Hsu and presented to the Arbitrator as being the specimen of Wolodiger. The Union submits it was impossible for the laboratory to have a sample the day before it was collected from Grievant and therefore the test should not be credited. Dr. Hsu ' s report shows a date of 30 May 95, 04 :21, in the upper right hand corner after the words "Tune Date." Once again, the laboratory could not have a sample of Wolodiger ' s urine on May 30, The Union questions whether the laboratory had 25

26 Wolodiger ' a urine sample at all when this report was generated. The Union concludes that the Postal Service failed to prove the chain of custody was maintained and the results of the drug test were correct. Turning to the issue of whether the Postal Service proved Grievant was under the influence, the Union states the record is lacking in the regard. The Postal Service stipulated the random drugs tests were not required because of any performance or safety problems with the Grievant. The only documentation of the Postal Service that Grievant was under the influence is the positive drug test which is suspect. Dr. Hsu testified that her laboratory does not test samples to determine whether or not the person was under the influence. Arbitrator P. M. Williams stated that a urine test is incapable of resolving whether a person is impaired or under the influence of an illegal drug. Case No. S7N - 3D-D Therefore, the Arbitrator must conclude that the Postal Service has not established Grievant was under the influence of any drugs or controlled substance on May 31, The Union concluded in its post - hearing brief with the follows : The Postal Service has failed to show that they had a right to conduct random drug testing on the grievant. The Postal Service contention of the grievant agreeing to random drug testing in the contents of the Last Chance Agreement is not sound and must not be allowed to stand. The chain of custody is just not credible. There are too many inconsistencies and too much unaccounted time. Management failed to 26

27 establish the grievant was under the influence. The urinalysis cannot be used to resolve whether one is under the influence. A blood test is more appropriate. Management failed to establish that any drugs were used on the job nor was there any conduct that would leave one to believe drugs were being used. Brief, p. 11. The Union submits that all of the grievances should be sustained and that Grievant be awarded monetary damages for each drug test and that he be returned to work with full back pay and benefits. V. DISCUSSION AND FINDINGS The controlling contract document in this case is the Last Chance Agreement dated June 17, The parties stipulated this grievance is not governed by the just cause provision of Article 16. The parties also stipulated the random drug test of May 31, 1995, was ordered pursuant to the Last Chance Agreement, and not Section or Section of the ELM. On May 31, 1995, Wolodiger was required to take a drug test. The test was ordered on management ' s belief Grievant was subject to random drug testing under the Last Chance Agreement. Grievant was taken off his route by a supervisor and transported to Dr. White ' s office where he was required to provide a urine sample. There is no evidence in the record Grievant was having problems performing his job or exhibited any signs of impairment on May 31, 27

28 1995. Neither Dr. White or the supervisor reported any signs of impairment exhibited by Grievant on May 31, The urine sample was taken to Physicians Clinical Laboratory by a courier. On June 1, 1995, Physicians Clinical Laboratory reported to Dr. White that Grievant had tested positive for marijuana (THC). A subsequent GCMS test confirmed the presence of THC in Grievant's urine at 160 NG/ML. Dr. White reported the laboratory findings of marijuana in Grievant' s urine as "strongly positive" to the Postal Service. There are five grievances before this Arbitrator. While all of the grievances involve related issues, there are some differences in each case. The Arbitrator will decide each grievance separately. A. Article 16 Section 7 Emergency Procedure F90N-4F-D The Arbitrator finds that Postal Service acted in conformance with Article 16, Section 7, Emergency Procedure, when it placed Grievant in an off-duty status on June 3, The justification for the emergency, placement was supported by sufficient factual evidence necessary to place Grievant in an offduty status. Accordingly, the grievance will be denied. The reasoning of the Arbitrator is set forth in the discussion which follows. Article 16, Section 7, establishes an emergency procedure which may be implemented under appropriate circumstances. The emergency procedure permits management to "immediately" place an 28

29 employee in off-duty status without pay where there is an "allegation" involving certain types of activities. The Postal Service is expressly authorized to use the emergency procedure where the allegation involves intoxication, pilferage, or failure to observe safety rules and regulations. in addition, the Postal Service may use the emergency procedure where "retaining the employee on duty may result in damage to U.S. Postal Service property, loss of mail or funds or where the employee may be injurious to self or others." Emphasis added. By this language the parties have agreed that certain situations do arise where management must act "immediately " to suspend an employee under the specified conditions. Section 7 is clearly a permissible variation from the conventional disciplinary suspensions contemplated by the parties under the National Agreement. Moreover, the level of proof necessary to impose a Section 7 emergency placement in off- duty status is less than would normally be required under other disciplinary provisions of the contract. Since Section 7 grants management a right to place an employee "immediately" in a non-duty, non-pay status because of an "allegation " of certain misconduct, the burden of proof must be held to less than the traditional standard necessary to support a just cause suspension or discharge. Further, Section 7 expressly authorizes the placement of the employee in off - duty status where retention of the employee " may" result in certain harmful consequences to the Postal Service. In the judgment of this Arbitrator, the choice of the word "may" indicates an intent that 29

30 Postal Service has the option to utilize Section 7 procedures where it has something less than clear and convincing evidence of employee misconduct. Adoption of an interpretation which would hold management to a strict burden of proof before it may enforce the Section 7 procedure would nullify the clear and unambiguous right of the Postal Service to take immediate action under the emergency circumstances designated in Section 7. Applying these principles discussed above to the facts of the instant case, the conclusion is inescapable that Postal Service had sufficient justification to utilize the emergency procedure set forth in Article 16, Section 7. Manager Lopez had a medical report from Dr. White that Wolodiger had tested "strongly positive" for marijuana. At the time the Physicians Clinical Laboratory report was received by the Postal Service there was no basis to doubt the validity of the positive test result. Based on all of the evidence the Postal Service had on June 2, 1995, the Arbitrator holds Postal Service had sufficient evidence to conclude retention of Grievant on duty might pose a threat to customers and fellow employees. It is critical to note that it is not necessary for the Postal Service to prove the actual quilt of the employee under Section 7. The removal from the workplace of an employee--where that employee is alleged to have been intoxicated due to use of drugs or alcohol--while a full investigation is conducted is precisely the type of situation contemplated by the emergency procedure set forth in Section 7. 30

31 The Arbitrator concludes that Postal Service acted reasonably with the information management had on June Management had credible evidence retention of Grievant on duty might result in injury to himself or others. A primary purpose of Article 16, Section 7, is to allow management to act quickly to protect itself even when there may be doubt concerning the full extent of the problem. Accordingly, the Arbitrator finds Postal Service acted in conformance with the National Agreement when it implemented the emergency procedure set forth in Article 16, Section 7. B. Removal - F90N - 4F-D The controlling document in this case is the Last Chance Agreement. The parties stipulated the random drug test of Grievant on May 31, 1995, was ordered pursuant to the Last Chance Agreement. Last Chance Agreements when properly utilized are a valid tool to allow an employee to escape discharge and to provide the employee one final opportunity to correct their deficiencies. By accepting a Last Chance Agreement, the grievance is resolved and the employee returns to work under a set of express conditions. if the employee violates any of the conditions- -within a set period of time-- termination will follow. The Last Chance Agreement provides an employee the opportunity to retain employment and the Postal Service gains in that it may be able to keep the skills of a trained and experienced worker. Where a valid Last Chance Agreement is in place, all the Postal Service must demonstrate to enforce the agreement is to 31

32 prove that the employee violated the agreement. A finding that a violation of the Last Chance Agreement has taken place is the equivalent to a finding just cause is present to remove the employee from the job. The role of the arbitrator in deciding cases where a Last Chance Agreement is in place is to make a determination if the Last Chance Agreement was violated. Where the Last Chance Agreement stipulates that the penalty for violation is discharge, the imposition of the penalty specified in the Last Chance Agreement is automatic. The normal constraints such as progressive discipline and mitigating circumstances are not relevant considerations for an arbitrator where the Last Chance Agreement specifies the penalty for violation of the agreement. Consistent with the above described principles, the parties agreed on June 17, 1992, to reduce a prior removal of Grievant Wolodiger to a disciplinary suspension. Jt. Ex. 1, pp. 22, 23. The 1992 Last Chance Agreement gave Grievant a final opportunity to demonstrate his ability to remain free of drugs and to satisfy the attendance requirements as set forth in the Last Chance Agreement. Failure of Grievant to adhere to the terms of the Last Chance Agreement would "result in his removal from the Postal Service." In order for the Postal Service to successfully remove an employee for violation of a Last Chance Agreement, the action must be based on proper interpretation and application of the Last Chance Agreement. The Arbitrator finds that Postal Service 32

33 management ' s handling of this complicated drug case was replete with errors and overall sloppiness, from beginning to end. First, the Postal Service misread its ability to subject Grievant to random drug testing under the Last Chance Agreement. Second, the Postal Service was forced to rely on a drug test by Physicians Clinical Laboratory that raised some serious questions about its validity. Third, the Postal Service responses to the five grievances, as to the basis for the drug tests and reasons for taking the various actions, were inconsistent and contradictory. The final position of the Postal Service as to the basis for the random drug test was not resolved until the second day of the arbitration hearing. The Postal Service advocate stipulated the testing was ordered pursuant to the Last Chance Agreement and not on any provision of the ELM. The notice of removal had cited Grievant as being sent for a fitness for duty examination as per Section of the ELM. This assertion was incorrect. Fourth, the Postal Service felt compelled to rely in its post - hearing brief on grounds for discharge and arguments not advanced in the notice of removal or lower levels of the grievance procedure. Fifth, the Postal Service was hampered by the fact the Last Chance Agreement and the notice of removal used the words being "under the influence of a controlled substance." By using the phrase " under the influence" the standard of misconduct has been raised above simple use or possession of a controlled 33

34 substance. The Postal Service placed on itself the burden to prove Grievant was under the influence on May 31, 1995, in order to sustain the charge. The role of the Arbitrator in deciding this case is to determine what was intended by the parties when they included Item 5 in the Last Chance Agreement. As the Union correctly points out, if the language is clear and unambiguous, the Arbitrator must apply the plain meaning of the language. In sharp contrast, the Postal Service argues that to determine the interests articulated by the parties in Item 5, it is necessary to examine the bargaining history which resulted in the disputed provision. The fundamental goal of contract interpretation is to determine and give effect to the intent of the parties as expressed in the contract. In issues of contract interpretation arbitrators are controlled in the first instance by the contract language. Past practice and bargaining history may be important in ascertaining the meaning of the contract in dispute where the language is ambiguous or unclear. Item 2 is also relevant to assist in determining what was intended by Item 5, because Item 2 represents an express agreement that Wolodiger would be subject to random drug testing by the state of California as part of his probation and treatment program. The controlling language in this dispute is found in Item 5 which states : 5. Any incident of being under the influence of a controlled substance, unless prescribed by a physician will be 34