In past articles I have tried to shy away from fluff pieces that just mimic old inefficient policies of dealing with important topics. Our members need perspective and honest appraisals on important issues that face our workers today. With that in mind, I have tried in the past to address the issue of lax and less than forceful representation by our leaders, sexual harassment in the workplace, and political activism.
This piece involves the complicated issue of suspension and termination from your job, due to drug test failures and drug use by our workers, either in the work place or on your personal time. This issue tends to be very divisive in its opinions by our members. There are strong feelings for and against the implementation of heavy-handed drug policy with vigorous enforcement clauses. I make no moral judgments on anyone’s opinion either way. I will simply attempt to lay out some legal aspects maybe not commonly known by our members; and yes, I will try to point out some improvements that can be brought to bear. My only motives are to educate and to keep our technicians on the job and working.
—Zero Tolerance Policy—
Bosses LOVE “zero tolerance policies.” One arbitrator called them “the last refuge of weak managers.” In my opinion, he should also to include weak union negotiators in his statement. Hard to believe, but several of our current contracts rely on a zero tolerance policy regarding what might be called egregious behavior in the workplace. This could refer to fighting, threatening violence, stealing, drug test failures, verbal abuse, sexual harassment, felony convictions, etc. For our discussion purposes, let’s narrow our view to drug test failures. This could mean just using pot, not just the harder drugs which are in no way acceptable to our professional standards. Hey, come on, some have called out liberal Austin as a marijuana local. Be that as it may, these discipline policy issues are on the rise.
A ZERO TOLERANCE POLICY provides that workers who commit a specific infraction (failed drug test) be immediately discharged with no consideration for mitigating circumstances such as an employee’s long standing seniority or past record. Worse yet, if an accident occurs they test all parties, even those collaterally damaged by the incident. These workers are clearly victims in the incident, only to be re-victimized by having to pass a urine test.
If the union questions the policy, the employer is likely to cite contractual language which gives it the right to issue rules and regulations. This is part of the “managements rights” section in most contracts. Management can set rules, policies, and regulations for employment. Arbitrators generally uphold these rules when they are used to maintain production quotas and insure a safe working environment (something they are legally bound to do).
However, even if the contract’s management rights clause waives the union’s right to negotiate on the contents of the rule, the employer must allow the union to bargain on how it will be applied. I believe this tactic has eluded our leadership. Our representatives simply look to a strict interpretation of contract language for what they can and can’t do. But, as labor attorney and writer Robert Schwartz shows, there is a tactic to combat, somewhat, even the strictest of contract language. I believe Local 205’s negotiators are not aware of this tactic and simply say “it’s not in the contract,” believing they can’t argue, discuss, or negotiate on the contents of the rule; or bargain on how it’s applied. To clarify, we have an option to challenge the conditions of the violation and we are not doing it. I believe our negotiators just look at strict contract wording, which is very limiting as the final word. And apparently Schwartz agrees with my interpretation.
These overly broad zero tolerance policies can lead to grossly unfair punishments. And some of our working brothers and sisters have suffered because of them.
Let me explain. When an employee whose conduct should result in a warning or short suspension is discharged because of a zero tolerance policy, the union should assert – through the Business Agent and Stewards’ Committee (Grievance Committee) – that the policy violates the Just Cause clause of the contract. Fair notice, disparate (uneven) treatment might be a good reasonable argument. This is one of several possible tactics to argue against a mandatory drug test. At the very least, it may mitigate the severity of the punishment. It would be to our benefit for our contracts to have language – that employers deem reasonable – more clearly defining the union’s contract interpretation.
Summary discharge is contrary to the basic principle of just cause for discipline. Outdated as it is, it’s the old master vs. servant attitude that employers constantly try to enforce. Not to mention, if discharge was instituted before test results or a good faith investigation of facts, we can argue the employee did not receive due process.
It is widely accepted that the just cause concept compels an employer to weigh the gravity of the offense, consider the mitigating and extenuating circumstances, and apply the least severe penalty that is likely to lead the employee to correct his or her mistakes. A disciplinary firing and drug test failure can have long term negative effects on an employee’s career.
Zero tolerance unilaterally extinguishes these just cause-bargained protections.
Union Silence on the Issue
The union will have a hard time contending that zero tolerance violates the contract if it has failed to object before the current discharges. The employer will undoubtedly argue that past practice shows agreement with the policy. Management will never want to appear to condone illegal recreational drug usage by its employees. As a tactic to overcome that contention, we, the union, should distinguish the current cases from the earlier cases, stating that current cases more clearly violate the just cause standard.
Unions can use the wording of zero tolerance policies against the employer. A policy might state that a violation “may” lead to immediate discharge. This can be interpreted to mean that dismissal is only one of several possible alternatives. Similarly, if a policy states the offender is “subject” to discharge or punishment “up to and including discharge,” the union may have some wiggle room.
It is hard to believe that our International and local representatives signed on to this overly broad zero tolerance policy. Although we as stewards, reps, and advocates can raise defenses such as lack of evidence, lax of enforcement, disparate treatment, and due process, we will be fighting a battle with one hand tied behind our backs until we get some basic change at the contract level.
Until then, in my opinion, it’s nothing short of a crapshoot to spend time and money taking these kinds of situations to arbitration.
I found a case recently in researching arbitration cases of mandatory dismissal in drug cases:
COMPARE BIOLAB INC., 114 LA 279 (BRODSKY 2000) “If required by the contract, a discharge based on a positive drug test is likely to be upheld in arbitration even without evidence of impairment.” (*3)
GES Contract Wording
Our agreement with the Tradeshow employer GES has this kind of extreme zero-tolerance policy. I would hope the International and IA Reps would listen to our pleas to change this policy in future contracts or give us support, in both time and monies, to properly process these kinds of dismissals through the Grievance Procedure. It would surely go all the way to arbitration and that is an unfair burden on a small local like ours. Or, a much easier remedy would be to strike it from future contracts all together.
Jim Ford, chair
IATSE Local 205
JUST CLAUSE: A UNION GUIDE TO WINNING DISCIPLINE CASES by Robert Schwartz was the primary source for this article.
***A good contract with a good union is good business***
—John T. Dunlap, US Secretary of Labor