archer, marco - award 633734 - 2013-07-06

8/13/2019 Archer, Marco - Award 633734 - 2013-07-06

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In the Matter of the Arbitration

Between

SERVICE EMPLOYEES INTERNATIONALUNION, LOCAL 32BJ Petitioner

And

RUSH MANAGEMENT COMPANY, LLC

Respondent

BEFORE: John Lloyd Anner, Esq., ArbitratorAPPEARANCES:For the Union:

Grievant:

For the Employer:

OPINIONAnd

AWARD

RE: 2134 Amsterdam Ave.

Discharge, Marco ArcherCase No. 633734

Raul Garcia, Esq.Associate General CounselSEIU, Local3 BJ

Marco Archer

Ginger D. Schroder, Esq.Schroder, Joseph Assoc., LLPCathy Spinks, Regional ManagerKathy Pena, Site ManagerCarlos Lopez, Facilities CoordinatorLuis Fernandez, Superintendent


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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 the2008 Collective Bargaining Agreement between SEIU, Local 32BJ and RUSHMANAGEMENT COMPANY, LLC (hereinafter referred to as Agreement ) the matterwas submitted to the undersigned for Arbitration and Award. The dispute involves thedischarge of Marco Archer.The dispute was scheduled for hearing on April29 2013, at 10:00 AM. All the partiesappeared and were represented by counsel. The parties were given full opportunity tooffer testimony, present evidence, examine and cross-examine witnesses. At theconclusion of the hearing the parties requested that written closing statements besubmitted. Statements were received and on June 21, 2013, the hearing was closed.

F CTS

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

OPINION

Employer's Positiont 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

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Employer requested that he submit to a substance test. The Grievant refused several timesand 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 ofintoxication. In support of its position, the Employer submitted the testimony of severalwitnesses who observed the Grievant on the day in question. The Employer in its briefdescribed the confrontation with the Grievant as follows: Two witnesses testified that onJuly 11,2012, the Grievant reported back to work following a lunch break showingintense signs of alcohol consumption and inebriation. Ms. Pena testified that she hadobserved Mr. Archer earlier in the day appearing normally, with a normal gait, and notseemingly under the influence of intoxicating substances. Mr Lopez and Ms. Penatestified that they observed the Grievant's return from the lunch break and both statedthat the Grievant had an unsteady gait, was stumbling, 'reeked' of alcohol, had slurredspeech and bloodshot red eyes and that he was, in the words ofMr. Lopez, not normal.'Further, the Grievant, when instructed not to return to work that afternoon and to awaitthe arrival ofMr. Fernandez, was requested to be seated at a table. Minutes thereafter, hefell asleep and 'drooled' on himself. He subsequently displayed other signs ofintoxication, including 'belligerent and aggressive behavior.' (Employer brief p.3)Regional Manager Cathy Spinks testified that after talking to both witnesses andreviewing the Grievant's past record that included many warnings for alcohol problemsand a final warning on February 9, 2009 (C.Exh.ll) for abuse of the Employer's alcoholpolicy (C.Exh.l , she decided to terminate the Grievant. The Employer also pointed outthat all the discussions and warnings to the Grievant were conducted in Spanish, hisnative language, so there was no question of the Grievant not understanding what theEmployer told him.In addition, the Employer in its brief submitted numerous citations from other forumswhere termination for alcohol abuse was upheld.The Employer requests that the termination be upheld and the grievance be denied in allrespects.

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Union PositionThe Union its riefpoints out that the Grievant had no prior suspensions for alcoholabuse. According to the Agreement employees can only be terminated for jus t cause. Justcause requires that the discipline must be progressive. This is the standard practice and arequirement that has been consistently upheld in Employer-Employee relations. In thiscase it is clear that there was no progressive discipline. The Grievant was admittedlynever suspended prior to his termination. In addition, despite the testimony of theEmployer's witnesses, the Grievant testified that he was not drinking on the date inquestion and was willing to submit to a drug/alcohol test. The Grievant was instead toldto 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 problemsubmitting to a test if requested by the Employer. Besides the Employer never submittedproof 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'switnesses was that the Grievant was fired for refusing to submit to a test for alcohol yetthe letter to the Union representative, John Greer, clearly states he was terminatedbecause he returned to work after lunch on July 11, 2012, smelling of alcohol and underthe influence of alcohoL t is the Union's contention that the charge of refusing to takethe 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 casethat the Grievant was never given a disciplinary suspension before his termination whichis a requirement of progressive discipline before termination. In addition the Grievantclearly testified that he was not drinking on the day in question and was never offered anopportunity to take a substance test which would have proven he was neither drunk nordrinking. The Union further point out that since his termination, the Grievant has enteredis attending an alcoholic program and is doing very well. The Union argues however thatthis admission should not be grounds for his termination.

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

QUESTION

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

EMPLOYER POLICYO DRUG AN ALCOHOL

Drug FreeRUSH is committed to providing a safe work environment and to fosteringthe well-being and health of its employees. That commitment isjeopardized when any RUSH employee illegally uses drugs, comes towork under the influence of drugs and/or alcohol, or possesses, distributes,or sells drugs. t is a violation ofCompany policy for any employee to:(a) Possess, sell, trade, or offer for sale ilJegal drugs or otherwise engagein the illegal use of drugs.(b) Report to work under the influence of illegal drugs, alcohol or othersubstances which might impair judgment.f you have been prescribed medication that might impair your ability towork effectively or safely, you must contact your supervise for guidancebefore beginning work.

RUSH, at its discretion, may require employees to submit to testing (suchas urinalysis) for the purpose of verifying the employee s drug free status.Such an employee will be requested to comply with the instructions of thetesting technicians.The employee has the right to refuse to submit to this test, but anemployee s refusal will be treated as a positive test result and anyemployee who refuses to submit to a drug test will be subject to immediatedischarge.

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

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

DIS USSION

Despite the strenuous denials of the Grievant, it is clear from the testimony that theGrievant reported back to work on the day in question under the influence of alcohol. TheEmployer's two direct witnesses and one rebuttal witness 's clear testimony was notrebutted at the hearing by the Grievant's denials. The Union claims that the Employerhad conflicting evidence about why the Grievant was terminated> The witnesses claimedthat 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 thathe returned to work after lunch on July 13, 2012, under the influence of alcohoL TheUnion's argument is an exercise in semantics> The Grievant would not have been askedto take the test as testified to by the witnesses unless he returned to work under theinfluence of alcohol. According to the policy quoted above, the result of a refusal to takea test (such as urinalysis) will result in a presumption of a positive result and be groundsfor immediate discharge> In any event, directly or indirectly, the result would have beenthe same He would have been terminated for reporting back to work under the influenceof alcohol.As stated above, the testimony of the Employer's witnesses was very conclusive aboutthe Grievant's condition on the day in question despite his denialsThe question is whether his reporting to work after lunch under the influence of alcohol isgrounds for his immediate termination. The Union argues that there has to be priorsuspensions for the same offence before a long-service employee such as the Grievantcan be terminated. I disagree. Reporting to work under the influence of alcohol or drugshas long been held to be grounds for summary termination. In this case the Grievant hashad a long history of problems with alcohol on the job On July 16,2003, the Grievantreceived a warning about the use of alcohol on the job. In that warning it referred to aprior situation in June of2 3 (C.Exh.2). So the Grievant's problems with the use of

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alcohol on the job go back to his earliest days of employment. The Grievant also receiveda written warning on March 17, 2008 about his use of alcohol which was causing himhealth 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, willresult in the immediate termination of your employment." (C.Exh. 10 . The most recentwarning was a final warning on February 9, 2009, for problems about the use of alcoholon the job (C.Exh.ll . The Grievant testified that both warnings were given to him butwhen he told he( he was going to take them to the Union, she ripped them up and hewent back to work." 3The Grievant also testified that he now admits that he has an alcohol problem and he hadgotten help through a professional counseling program at Beth Israel Hospital in July of2012. He stayed in that program for three months but quit when they asked him questionsabout his personal life. He then joined another group and attends AA meetings twice aweek.Unfortunately, the Grievant's attempt to get help for his alcohol problem, which hepreviously denied, comes too late. After reviewing all the testimony I find that theGrievant reported back to work on the day in question under the influence of alcohol.This was after a number ofwarnings from the Employer that he would be terminatedifhe did not correct this problem. The Grievant was given a number of opportunities andwarnings but never sought help until after he was terminated.Reporting to work under the influence of alcohol or drugs has always been considered adischargeable offense in this forum. I find that based on all the evidence and argumentspresented by the parties that the Grievant was terminated for just cause.

W RD

The Grievance is denied in all re

July 6, 2013

2 Cathy Spinks, the Regional Managec3 Cathy Spinks testified on rebuttal that that never happened.

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State of New York:SS:

County of ew York:I hereby affirm pursuant to CPLR Sec. 7507 that I am the individual described in andwho executed this instrument which is my A ward.

Date: July 6 2013

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archer, marco - award 633734 - 2013-07-06

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