In the Matter of the Arbitration

OPINION And

Between

AWARD

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 32BJ Petitioner, And

RE: 2134 Amsterdam Ave.

Discharge, Marco Archer Case No. 633734 RUSH MANAGEMENT COMPANY, LLC

Respondent,

BEFORE: John Lloyd Anner, Esq., Arbitrator APPEARANCES: For the Union: Raul Garcia, Esq. Associate General Counsel SEIU, Local32BJ

Grievant:

Marco Archer

For the Employer:

Ginger D. Schroder, Esq. Schroder, Joseph & Assoc., LLP Cathy Spinks, Regional Manager Kathy Pena, Site Manager Carlos Lopez, Facilities Coordinator Luis Fernandez, Superintendent

A dispute having arisen between RUSH MANAGEMENT COMPANY, LLC (hereinafter referred to as "Employer") and the Service Employees International Union, Local32BJ, (hereinafter referred to as "Union") under the terms and conditions of the 2008 Collective Bargaining Agreement between SEIU, Local 32BJ and RUSH MANAGEMENT COMPANY, LLC (hereinafter referred to as "Agreement") the matter was submitted to the undersigned for Arbitration and Award. The dispute involves the discharge of Marco Archer. The dispute was scheduled for hearing on April29, 2013, at 10:00 AM. All the parties appeared and were represented by counsel. The parties were given full opportunity to offer testimony, present evidence, examine and cross-examine witnesses. At the conclusion of the hearing the parties requested that written closing statements be submitted. Statements were received and on June 21, 2013, the hearing was closed.

FACTS

The Grievant, Marco Archer, had been employed by the Employer as a porter since October 17,2002. Following an incident on July 11,2012, he was terminated for reporting back to work after lunch intoxicated and refusing to submit to a drug test. On January 17, 2013, the Union filed a request for arbitration on the grounds that the Grievant was unjustly discharged.

OPINION

Employer's Position
It is the Employer's position that the Grievant reported back to work after lunch

on July 11, 2012, apparently intoxicated. The Grievant denied he was intoxicated and the

Employer requested that he submit to a substance test. The Grievant refused several times and was terminated. It is the Employer's argument that under the ruJes of the Employer (C.Exh.l ), a refusal to take a substance test is tantamount to a presumption of intoxication. In support of its position, the Employer submitted the testimony of several witnesses who observed the Grievant on the day in question. The Employer in its brief described the confrontation with the Grievant as follows: "Two witnesses testified that on July 11,2012, the Grievant reported back to work following a lunch break showing intense signs of alcohol consumption and inebriation. Ms. Pena testified that she had observed Mr. Archer earlier in the day appearing normally, with a normal gait, and not seemingly under the influence of intoxicating substances. Mr. Lopez and Ms. Pena testified that they observed the Grievant's return from the lunch break and both stated that the Grievant had an unsteady gait, was stumbling, 'reeked' of alcohol, had slurred speech and bloodshot red eyes and that he was, in the words of Mr. Lopez, 'not normal.' Further, the Grievant, when instructed not to return to work that afternoon and to await the arrival of Mr. Fernandez, was requested to be seated at a table. Minutes thereafter, he fell asleep and 'drooled' on himself. He subsequently displayed other signs of intoxication, including 'belligerent and aggressive behavior.' (Employer brief p.3) Regional Manager Cathy Spinks testified that after talking to both witnesses and reviewing the Grievant's past record that included many warnings for alcohol problems and a final warning on February 9, 2009 (C.Exh.ll) for abuse of the Employer's alcohol policy (C.Exh.l ), she decided to terminate the Grievant. The Employer also pointed out that all the discussions and warnings to the Grievant were conducted in Spanish, his native language, so there was no question of the Grievant not understanding what the Employer told him. In addition, the Employer in its brief submitted numerous citations from other forums where termination for alcohol abuse was upheld. The Employer requests that the termination be upheld and the grievance be denied in all respects.

Union Position The Union its brief points out that the Grievant had no prior suspensions for alcohol

abuse. According to the Agreement employees can only be terminated for just cause. Just cause requires that the discipline must be progressive. This is the standard practice and a requirement that has been consistently upheld in Employer-Employee relations. In this case it is clear that there was no progressive discipline. The Grievant was admittedly never suspended prior to his termination. In addition, despite the testimony of the Employer's witnesses, the Grievant testified that he was not drinking on the date in question and was willing to submit to a drug/alcohol test. The Grievant was instead told to punch out and return the next day. When he returned the next day he was terminated. He further testified he was not drinking on the day in question, so he had no problem submitting to a test if requested by the Employer. Besides the Employer never submitted proof that the Grievant was given a copy of the Employer's policy on drugs and alcohol (see below). The Union also make the point that at the hearing the testimony from all the Employer's witnesses was that the Grievant was fired for refusing to submit to a test for alcohol yet the letter to the Union representative, John Greer, clearly states he was terminated because he "returned to work after lunch on July 11, 2012, smelling of alcohol and under the influence of alcohoL" It is the Union's contention that the charge of refusing to take the substance test was added by the Employer to strengthen its case against the Grievant.

In summary the Grievant a long-service employee, was not terminated for just cause. This is a violation of his rights under the Agreement. It is clear from the Employer's case that the Grievant was never given a disciplinary suspension before his termination which is a requirement of progressive discipline before termination. In addition the Grievant clearly testified that he was not drinking on the day in question and was never offered an opportunity to take a substance test which would have proven he was neither drunk nor drinking. The Union further point out that since his termination, the Grievant has entered is attending an alcoholic program and is doing very well. The Union argues however that this admission should not be grounds for his termination.

The Union requests that the Grievant be reinstated to his former position with full back and the restoration of all his seniority and benefits.

QUESTION

Was the Grievant terminated for just cause and if not what shall the remedy be?

EMPLOYER POLICY ON DRUG AN ALCOHOL 1

Drug-Free RUSH is committed to providing a safe work environment and to fostering the well-being and health of its employees. That commitment is jeopardized when any RUSH employee illegally uses drugs, comes to work under the influence of drugs and/or alcohol, or possesses, distributes, or sells drugs. It is a violation of Company policy for any employee to: (a) Possess, sell, trade, or offer for sale ilJegal drugs or otherwise engage in the illegal use of drugs. (b) Report to work under the influence of illegal drugs, alcohol or other substances which might impair judgment. If you have been prescribed medication that might impair your ability to work effectively or safely, you must contact your supervise for guidance before beginning work. RUSH, at its discretion, may require employees to submit to testing (such as urinalysis) for the purpose of verifying the employee's drug free status. Such an employee will be requested to comply with the instructions of the testing technicians. The employee has the right to refuse to submit to this test, but an employee's refusal will be treated as a positive test result and any employee who refuses to submit to a drug test will be subject to immediate discharge.

Employer Handbook p. 16 (C.Exh.l)

RUSH will keep all test results confidential, "the only results which will be disclosed to any RUSH officials will be whether the test was positive and, if so, the substance( s) which were detected>"

DISCUSSION

Despite the strenuous denials of the Grievant, it is clear from the testimony that the Grievant reported back to work on the day in question under the influence of alcohol. The Employer's two direct witnesses and one rebuttal witness's clear testimony was not rebutted at the hearing by the Grievant's denials. The Union claims that the Employer had conflicting evidence about why the Grievant was terminated> The witnesses claimed that he was terminated for refusing to take a substance test yet the Regional Manager, Cathy Spinks, wrote to the Union that the Grievant was terminated "due to the fact that he returned to work after lunch on July 13, 2012, under the influence of alcohoL" The Union's argument is an exercise in semantics> The Grievant would not have been asked to take the test as testified to by the witnesses unless he returned to work under the influence of alcohol. According to the policy quoted above, the result of a refusal to take a "test (such as urinalysis) will result in a presumption of a positive result and be grounds for immediate discharge>" In any event, directly or indirectly, the result would have been the same> He would have been terminated for reporting back to work under the influence of alcohol. As stated above, the testimony of the Employer's witnesses was very conclusive about the Grievant's condition on the day in question despite his denials> The question is whether his reporting to work after lunch under the influence of alcohol is grounds for his immediate termination. The Union argues that there has to be prior suspensions for the same offence before a long-service employee such as the Grievant can be terminated. I disagree. Reporting to work under the influence of alcohol or drugs has long been held to be grounds for summary termination. In this case the Grievant has had a long history of problems with alcohol on the job> On July 16,2003, the Grievant received a warning about the use of alcohol on the job. In that warning it referred to a prior situation in June of2003 (C.Exh.2). So the Grievant's problems with the use of

alcohol on the job go back to his earliest days of employment. The Grievant also received a written warning on March 17, 2008 about his use of alcohol which was causing him health problems. In that warning it was clearly pointed out to him the Employer's policy. "Using alcohol use during working hours, or reporting to work under the influence, will result in the immediate termination of your employment." (C.Exh. 10). The most recent warning was a final warning on February 9, 2009, for problems about the use of alcohol on the job (C.Exh.ll ). The Grievant testified that both warnings were given to him but when "he told he(! he was going to take them to the Union, she ripped them up and he went back to work."
3

The Grievant also testified that he now admits that he has an alcohol problem and he had gotten help through a professional counseling program at Beth Israel Hospital in July of 2012. He stayed in that program for three months but quit when they asked him questions about his personal life. He then joined another group and attends AA meetings twice a week. Unfortunately, the Grievant's attempt to get help for his alcohol problem, which he previously denied, comes too late. After reviewing all the testimony I find that the Grievant reported back to work on the day in question under the influence of alcohol. This was after a number of warnings from the Employer that he would be terminated if he did not correct this problem. The Grievant was given a number of opportunities and warnings but never sought help until after he was terminated. Reporting to work under the influence of alcohol or drugs has always been considered a dischargeable offense in this forum. I find that based on all the evidence and arguments presented by the parties that the Grievant was terminated for just cause.

AWARD

The Grievance is denied in all re

July 6, 2013

Cathy Spinks, the Regional Managec Cathy Spinks testified on rebuttal that that never happened.

State of New York: SS: County ofNew York: I hereby affirm pursuant to CPLR Sec. 7507 that I am the individual described in and who executed this instrument which is my Award.

Date: July 6, 2013