Labor & Employment Law Daily Arbitration award finding no just cause to fire employee who had positive drug test reinstated by 11th Circuit
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Monday, December 7, 2020

Arbitration award finding no just cause to fire employee who had positive drug test reinstated by 11th Circuit

By Ronald Miller, J.D.

Though the arbitrator understood the portion of the CBA concerning discharge for positive results differently than the district court did, it was clear he grappled with the text of the contract and did not ignore or modify that language.

Finding that an arbitrator “arguably” interpreted a collective bargaining agreement in finding that an employer did not have just cause to fire an employee who tested positive after a random drug test, the Eleventh Circuit, in an unpublished decision, reinstated the arbitrator’s award favoring the employee. The appeals court concluded that it was irrelevant whether the arbitrator was right or wrong, all that mattered was that his answer flowed from his interpretation of the CBA. Given that the district court recognized the arbitrator interpreted the contract as a whole and attempted to synthesize the provisions that were (perhaps) in tension, the arbitrator’s decision should have been affirmed (Georgia-Pacific Consumer Operations, LLC v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union, Local 9-0952, November 20, 2020, per curiam, unpublished).

Failed drug test. After accidentally taking his wife’s cough syrup (with codeine), an employee failed a random drug test. He was subsequently terminated under the employer’s zero-tolerance policy regarding positive drug tests. Thereafter, an arbitrator determined that under the parties’ collective bargaining agreement, the employer lacked just cause to terminate his employment. The arbitrator ordered the employer to reinstate the employee and make him whole for all of the time he missed save for a 90-day suspension.

In concluding that the employer did not have just cause to discharge the employee, the arbitrator observed that the employee was only tested on the day in question because he and another employee had agreed to serve as each other’s testing witnesses so as to not delay the drug test. The arbitrator determined that the contract required “just cause” for termination and that the employee’s innocent conduct made it impossible to say that the employer had just cause to fire him.

Award vacated. The employer turned to the district court for relief. It argued that the arbitrator’s decision should be vacated because he had unlawfully modified the contract. The district court agreed. It reasoned that once the arbitrator determined that the employee had indeed failed the drug test, he had no authority to determine that no just cause for termination existed. Thus, the district court concluded that the arbitrator exceeded his authority under the contract, and so vacated his decision.

Interpretation of contract. On appeal, the Eleventh Circuit held that the arbitrator “arguably” interpreted the contract and, accordingly, that his decision should not have been vacated. Though the arbitrator understood the portion of the CBA concerning discharge for positive results differently than the district court did, it was clear that he grappled with the text of the contract and did not ignore or modify that language.

Arbitrator’s analysis. At the outset of his decision, the arbitrator framed the dispute as one “regarding the exercise by [Georgia-Pacific] of its contractual authority to discharge an employee who tested positive on a random drug test.” And in his discussion of the issues, he posed the arbitration’s central question this way: “Does the Contract require the company to demonstrate just cause in order to terminate an employee who has tested positive for opiates during a random drug screen?”

The arbitrator characterized the part of the contract concerning Georgia-Pacific’s random drug-testing program as a “commitment” and asked whether Georgia-Pacific’s interpretation of the policy made to fulfill that commitment was “under the Parties’ contract,… enforceable with regard to [Irvin] and… his circumstances?” The arbitrator answered “No.”

The appeals court concluded that it was irrelevant whether the arbitrator was right or wrong, all that mattered was that his answer flowed from his interpretation of the CBA. The arbitrator emphasized that another provision of the contract limited Georgia-Pacific’s power “to discipline and discharge employees to just cause.” He then explained why he couldn’t conclude that “just cause” existed under these circumstances. If the arbitrator’s efforts had simply been free-wheeling policymaking, then vacatur would have been justified. But they weren’t, determined the appeals court.

The district court’s own analysis stated that “[t]he Arbitrator based his decision on the interplay of provisions in Articles 8 and 24 of the Contract.” Similarly, the district court noted that the arbitrator’s analysis attempted to synchronize the just cause standard in the contract with the employer’s “zero tolerance” drug policy. As the district court recognized, the arbitrator interpreted the contract as a whole and attempted to synthesize the provisions that were (perhaps) in tension.

Because the arbitrator’s construction was bargained for, his construction held, however good, bad, or ugly. Accordingly, the arbitration decision should have been affirmed.

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