NCJ Number
58686
Journal
Arbitration Journal Volume: 34 Issue: 2 Dated: (JUNE 1979) Pages: 19-27
Date Published
1979
Length
9 pages
Annotation
THE PREVAILING ARBITRATION STANDARDS IN 40 POST-1960 DISCHARGE AND SUSPENSION CASES INVOLVING DRUG-RELATED MISCONDUCT, BOTH ON AND OFF COMPANY PREMISES, ARE ANALYZED.
Abstract
THE CASES WERE REPORTED IN THE BUREAU OF NATIONAL AFFAIRS' 'LABOR ARBITRATION REPORTS.' DRUG DISCHARGES FALL INTO TWO CATEGORIES: (1) DISCHARGES FOR DRUG-RELATED MISCONDUCT ON COMPANY PREMISES, AND (2) DISCHARGES AND SUSPENSIONS FOR OFF-PREMISES, OFF-DUTY DRUG-RELATED OFFENSES THAT RESULT IN ARRESTS, INDICTMENTS, OR CONVICTIONS. PROBLEMS OF PROOF AND OTHER FACTORS DIFFER IN THE TWO CLASSES OF CASES. SUFFICIENCY OF PROOF IS OF FOREMOST IMPORTANCE IN DRUG DISCHARGE CASES. SUFFICIENT EVIDENCE MUST SHOW THAT THE EMPLOYEE POSSESSED, USED, SOLD, OR WAS UNDER THE INFLUENCE OF DRUGS ON COMPANY PREMISES. IN MOST DISCHARGE CASES, ARBITRATORS USE A 'PREPONDERANCE OF EVIDENCE' STANDARD. HOWEVER, IN CASES INVOLVING CONDUCT THAT VIOLATES THE CRIMINAL CODE, IT HAS BEEN SUGGESTED THAT ARBITRATORS SHOULD HOLD EMPLOYERS TO A 'BEYOND A REASONABLE DOUBT' STANDARD OF PROOF REQUIRED IN CRIMINAL PROCEEDINGS. THE LACK OF CONSISTENCY IN THE STANDARDS APPLIED MAKES IT IMPOSSIBLE TO ASCERTAIN WHETHER A MAJORITY OF ARBITRATORS ABIDE BY A PARTICULAR STANDARD. ALTHOUGH ARBITRATORS MAY USE DIFFERENT LABELS FOR THE STANDARD OF PROOF THEY REQUIRE, THEY CLEARLY ARE COGNIZANT OF THE SERIOUS IMPACT THAT A DISCHARGE HAS ON AN EMPLOYEE'S LIFE. CONSEQUENTLY, MOST ARBITRATORS DO NOT UPHOLD THE DISCHARGE IF THEY ARE NOT SATISFIED THAT THE ALLEGED MISCONDUCT WAS ESTABLISHED BY COMPETENT EVIDENCE, AS DISTINGUISHED FROM MERE SUSPICION OR CONJECTURE. IF EMPLOYERS DISCHARGE EMPLOYEES BECAUSE THAY HAVE BEEN ARRESTED, INDICTED, OR CONVICTED FOR DRUG-RELATED CONDUCT THAT OCCURRED OFF COMPANY PROPERTY, ARBITRATORS GENERALLY ARE NOT BOUND BY THE SAME STRINGENT STANDARDS OF PROOF REQUIRED FOR OFFENSES ON COMPANY PROPERTY. AFTER THE TRUTH HAS BEEN DETERMINED, ARBITRATORS MUST DECIDE IF THE MISCONDUCT JUSTIFIED A DISCHARGE. FACTORS CONSIDERED INCLUDE APPLICABLE PLANT RULES, THEIR AVAILABILITY TO EMPLOYEES, AND THE COMPANY'S PREVIOUS HISTORY OF ENFORCEMENT; THE EMPLOYEE'S PAST WORK RECORD AND DISCIPLINE RECORD; ADVERSE EFFECTS THE MISCONDUCT HAD ON THE COMPANY; AND SEVERITY OF THE OFFENSE. THREE FACTORS THAT MAY BE SIGNIFICANT ONLY IN DISCHARGES FOR OFF-PREMISES, OFF-DUTY CONDUCT ARE WHETHER THE GRIEVANT WAS ARRESTED OR CONVICTED; IF ARRESTED, WHETHER THE CHARGES WERE DISMISSED; AND IF CONVICTED, WHETHER THE GRIEVANT WAS GIVEN A SUSPENDED SENTENCE OR PUT ON PROBATION. FOOTNOTES ARE INCLUDED. (PRG)