Opinion
No. CV 08 4016119 S
April 11, 2008
MEMORANDUM OF DECISION
I Nature Of This Proceeding
This case arises out of a grievance filed by the Laborers' International Union of North America, Local 611 (Union) on behalf of its member, John Sanders, who was terminated by Atlantic Pipe Corp. (Employer) as it was discovered that said employee was in possession of marijuana, while on the job. Pursuant to the collective bargaining agreement between the union and the employer, specifically, Article X, the grievance went through the steps, winding up before an arbitrator, J. Larry Foy, Esq., who was selected by mutual agreement.
The arbitrator found that the employee's termination was without just cause, but some alternative discipline was indicated. The arbitrator, therefore, fashioned a remedy that provided for a thirty-day suspension for Sanders' misconduct, with reinstatement on condition that he pass a reliable drug test before returning to the job, and that for one year thereafter, submit to random drug testing by his employer. One reliable positive test would then provide just cause for his immediate termination. In addition, any future possession by Sanders of any illegal drugs on his employer's property would result in his immediate termination. Due to the remedy of suspension, rather than termination, Sanders was entitled to receive back pay and his lost benefits.
On December 4, 2007, pursuant to Connecticut General Statutes section 52-418, the employer filed an application to vacate the arbitration award (CV-07-4015994); thereafter, on December 21, 2007, pursuant to section 52-417, the union filed an application requesting that the court confirm the award. (CV-08-4016119). At the short calendar on January 7, 2008, this court consolidated both actions and set a briefing schedule. After reviewing the party's initial and responsive memoranda, the court heard oral argument at short calendar on March 10, 2008.
The court has reviewed the items submitted by agreement of the parties, including the relevant provisions of the collective bargaining agreement, the arbitration award, the submission, the employer's posted work rules and photos depicting the employer's work site. The court has also considered the written and oral arguments advanced by counsel, has reviewed the numerous cases cited by them, and read the relevant federal and state statutes in arriving at its decision to confirm the arbitrator's award.
II The Arbitration Proceeding
The parties agree that the arbitrator rendered his opinion and made his award, dated November 28, 2007, upon an unrestricted submission that required him to decide two issues:
1. Whether the employer had just cause to terminate John Sanders?
2. If not, what shall be the remedy?
The hearing was held in New Britain, at the American Dispute Resolution Center, at which both parties were represented by counsel. Witnesses were heard, documents were received and briefs were submitted. In his "Opinion and Award," the arbitrator cited Article XIV of the collective bargaining agreement, the safety provision, which required all employees to observe safety regulations and warned that failure to do so shall be cause for discharge; and Article XVI, the management rights clause, that reserved to the employer the right to suspend, terminate, discipline or discharge an employee, consistent with the provisions of the collective bargaining agreement.
The arbitrator found that Sanders was continuously employed by Atlantic for one and one-half years, although he had been employed in the past prior to general layoffs and that there was no record of previous discipline of or misconduct by Sanders. The termination was triggered when Plainville police came to the work site and arrested Sanders on an outstanding motor vehicle warrant, and, after a "pat down" discovered marijuana on his person. The police later informed Sanders' superiors that the employee was found to be in possession of illegal drugs on company property during work hours, which is not disputed. Undisputed also is the fact that there was no evidence that Sanders was under the influence of marijuana, used marijuana or sold marijuana during his shift or that, but for the police disclosure to his superiors, anyone knew that he was in possession of the illegal drug.
The arbitrator noted that the employer had posted on the bulletin board in the employee lunch room two work rules, which provided as follows:
(1) It is the company policy of Atlantic Pipe Corporation that no drugs or alcoholic beverages be allowed on company property. Therefore, anyone caught using drugs or consuming alcoholic beverages will be subject to disciplinary action, which could result in termination of one's employment. Emphasis added.
(2) It is the company policy of Atlantic Pipe Corporation that any and all personnel engaged in duties on company property are required to wear hard hats at all times. Anyone not wearing a hard hat is subject to disciplinary action.
As to the second rule, there was considerable evidence presented at the hearing that the plant work site, which involved the handling of piping and large concrete blocks, was highly dangerous, however, the arbitrator found that, as a general laborer, who did not operate machinery, Sanders' job was "less dangerous" to others; but, nevertheless, that the level of danger was significant. As to the first rule, the employer asserted that it required termination when an employee was caught in possession of an illegal drug on the employer's property and, further, that general principles of "just cause" support termination, even for a first offense. The union countered that said work rule cannot plausibly be read to permit or to require termination for "mere" possession of marijuana and that the principles of "just cause" do not support termination for a first offense of an employee with an unblemished work record.
The arbitrator found that there is no widely accepted principle that termination is the automatic penalty for a first offense of marijuana possession, while working at an industrial site, and that the employer's first rule, "does not clearly and unambiguously" provide a penalty for such possession. Furthermore, even if an employee is caught consuming illegal drugs or alcohol on the employer's property, said rule does not mandate automatic termination for that more serious misconduct. The arbitrator pointed out the obvious, namely, that illegal drug use is contrary to public policy, but that it is not required by public policy that an employee be terminated by an employer for a first offense of possession of marijuana at the work site. In fact, the arbitrator pointed out that a competing public policy favors rehabilitation. Given the lack of a specific work rule mandating termination and given Sanders' clean work record, including no incident or suspicion of previous drug use, the arbitrator found " little support for termination in the arbitral and judicial precedent cited in the record" by each of the parties. As an alternative to the harsh remedy of termination for Sanders misconduct, the arbitrator found that an unpaid thirty-day suspension, random drug testing, and a no tolerance approach to future drug involvement was the appropriate remedy. See Page 10-11 of the "Arbitrator's Opinion And Award," attached hereto, for the exact language.
III Claims of the Parties A. The Employer's Claim
In its application to vacate the award, the employer asserts that the award violates established state and federal public policy and is contrary to the restrictions in certain Connecticut statutes imposed on the employers relative to the drug testing of their employees. Specifically, the employer cites the "strong public policy" against the use, possession or sale of illegal drugs in the workplace established in the federal Drug Free Workplace Act, 41 U.S.C. Section 701-07, and Connecticut's criminal statutes applicable to the possession, sale or possession with intent to sell marijuana. The employer also refers to General Statutes Section 31-51t, et seq., Connecticut's drug testing statutes, in support of its claim that the portion of the award that permits the employer, for one year, to randomly test Sanders and to terminate Sanders on a single positive test, is contrary to the spirit and letter of said statutes. The employer also claims that instead of penalizing Sanders for his possession of marijuana in a dangerous workplace, the arbitrator rewarded him for said misconduct, "financially and otherwise." Finally, the employer argues that the court cannot excise the claimed illegal portion of the award and confirm the remainder, nor should the court refer the matter back to the arbitrator, as there are no issues that are in dispute.
B. The Union's Response
In its application to confirm the award, the union correctly points out that the matter was submitted to the arbitrator as an " unrestricted submission," and that, pursuant to the collective bargaining agreement, the arbitrator's decision was to be final and binding on the parties. According to the union, Atty. Foy, by mutual agreement, was granted the exclusive authority to "hear, decide and remedy" the contractual dispute resulting from Sanders' termination. The union asserts that the award is in conformity with the submission, is not in conflict with the collective bargaining agreement and is not illegal or contrary to any established public policy.
Citing numerous cases, from the United States Supreme Court on down, the union argues that no established and well-defined public policy mandates that an arbitrator sustain an employer's decision to terminate an industrial employee for possession of marijuana at work. The union correctly points out that the employer is unable to cite any case, federal or state, that mandates termination of an employee for possession of marijuana at an industrial site during work hours, absent a specific and clearly posted rule by the employer that termination will result from such possession. The union also refers to the employer's inability to cite a case, state or federal, that vacated an arbitrator's conditional reinstatement, on an unrestricted submission, of an employee who was found to be in possession of marijuana during work hours on company property and was thereafter terminated from his employment. Contrary to the employer's claim, the union argues that Sanders wasn't rewarded; in fact, he was chastised and, consistent with public policy, was afforded "a conditional and measured chance for redemption."
As to the employer's claim that the random drug testing portion of the award violates Connecticut's drug testing in employment statutes, the union correctly points out that the restrictions imposed by the statutes cited by the employer apply to urinalysis testing only; that the award makes no reference to the type of testing that the employer may utilize; and that there is no reason to assume that the employer, in implementing the arbitrator's award, will violate Connecticut law. Moreover, the union argues that, as an unrestricted joint submission, so long as the award conforms to the submission, a court may not vacate it, even if errors of law were committed by the arbitrator. The court may undertake a full de novo review of the award only if the party who seeks vacatur sustains its burden of proof that the award violated a strong, well defined, dominant and explicit public policy, rooted in the laws and legal precedent, and not from general concerns or interests. The union argues that a conditional and disciplinary reinstatement of an employee terminated for a first offense of marijuana possession, rather than violating public policy, actually comports with state and federal statutory and case law, calling for a flexible and remedial case-by-case approach to drugs and alcohol in the workplace.
In conclusion, the union argues that, due to the unrestricted submission, the award must be viewed as final, binding and not reviewable by the court, as is consistent with an accepted and undisputed public policy, i.e., that well-established public policy favoring arbitration as a means to resolve disputes. To quote the union's attorney: "The company seeks on a bare public-policy claim — one premised on misstated law — to vacate a lawful award that conforms to [the] parties' unrestricted joint submission." Emphasis added.
IV Applicable Law A. General Statutes Section 52-418
Connecticut General Statutes Section 52-418(a) provides:
(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. (Emphasis added.)
Given the facts of this case and the arguments made by counsel, the sub-paragraph at issue is clearly sub-paragraph (4), especially in so far as the public policy claim is concerned.
B. Judicial Review of Arbitration Awards
An excellent analysis of the law in Connecticut regarding judicial review of arbitration awards is found in State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467 (2000). In that case, a correction officer had been discharged from his employment as a result of placing an anonymous, obscene and racist telephone call to a state legislator while on duty. The arbitration award ordered reinstatement. The trial court vacated the award. Justice Norcott, writing for the majority, upheld the trial court's finding that there was just cause for dismissal after instructing us as follows, at Pages 473-75:
We begin our analysis with a restatement of familiar principles reflecting this court's traditional deference to arbitral awards. We have consistently stated that arbitration is the favored means of settling differences and arbitration awards are generally upheld unless an award clearly falls within the proscriptions of § 52-418 of the General Statutes. A challenge of the arbitrator's authority is limited to a comparison of the award to the submission. Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. In spite of the general rule that challenges to an arbitrator's authority are limited to a comparison of the award to the submission, an additional challenge exists under § 52-418(a)(4) when the award rendered is claimed to be in contravention of public policy . . . This challenge is premised on the fact that the parties cannot expect an arbitration award approving conduct which is illegal or contrary to public policy to receive judicial endorsement any more than parties can expect a court to enforce such a contract between them . . . When a challenge to the arbitrator's authority is made on public policy grounds, however, the court is not concerned with the correctness of the arbitrator's decision but with the lawfulness of enforcing the award . . . Accordingly, the public policy exception to arbitral authority should be narrowly construed and a court's refusal to enforce an arbitrator's interpretation of collective bargaining agreements is limited to situations where the contract as interpreted would violate some explicit public policy that is well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests . . . The party challenging the award bears the burden of proving that illegality or conflict with public policy is clearly demonstrated . . . Therefore, given the narrow scope of the public policy limitation on arbitral authority, the [employer] can prevail in the present case only if it demonstrates that the [arbitrator's] award clearly violates an established public policy mandate. (Emphasis added; internal quotation marks omitted.)
C. Unrestricted Submission
As noted, both parties agree that in this case, the submission of the grievance to the arbitrator was unrestricted. "The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breath of the issues, reserving explicit rights, or conditioning the award on court review." Industrial Risk Insurers v. Hartford Steam Boiler Inspection Ins. Co., 258 Conn. 101, 109 (2001). In the absence of any such qualifications, an agreement is unrestricted. Carroll v. Aetna Casualty Surety Co., 189 Conn. 16, 20 (1983). A party should not be permitted to object to an award which accomplishes precisely what an arbitration panel was commissioned to do because said party merely disagrees with the result. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 186-87 (1987). Parties should be bound by a decision that they contracted and bargained for, even if that decision is deemed to be "unwise or wrong on the merits." Quigley-Dodd v. General Accident Ins. Co. of America, 256 Conn. 225, 249 (2001).
Because the parties have chosen to resolve their dispute via a contracted arbitration process rather than by pursuing judicial remedies, "it is the arbitrator's view of the facts and of the meaning of the contract that they have agreed to accept." United Paperworks International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987). As long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, the court carnot overturn his decision simply because it disagrees with his factual findings, contract interpretations or choice of remedies. Id., 36-38. Thus, in an unrestricted submission, even serious error committed by an arbitrator does not justify court interference unless the arbitrator exceeded the scope of his authority.
Our appellate court, in a per curiam opinion, has recently applied the well established principle that a court should rarely interfere with an unrestricted submission and is permitted to do so under specifically defined and limited facts and circumstances:
When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties' agreement . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission.
The significance . . . of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrator's decision.
Bridgeport Fire Fighters Local 998 v. City of Bridgeport, 106 Conn.App. 92, 95 (2008).
In yet a more recent case, the appellate court, in deference to the primacy of the arbitrator's fact-finding and contract interpretation function, stated:
Courts will not review the evidence, nor, where the submission is unrestricted will they review the [arbitrator's] decision of the legal questions involved . . . Furthermore, in applying this general rule of deference to an arbitrator's award, [e]very reasonable presumption and intendment will be made in favor of the arbitral award, and of the arbitrators' acts and proceedings. (Internal quotation marks and citations omitted.)
CT Page 6616 City of New Haven v. AFSCME, Council 15, Local 530, Conn.App. (2008).
However, the appellate court in Bridgeport Fire Fighters, as did the Supreme Court in the AFSCME, Local 387 case, supra, recognized the exception to the rule favoring judicial restraint when presented with an unrestricted submission, that is, when a party raises the claim that the award violates a well-defined, dominant, clear and explicit public policy.
D. The Public Policy Exception
In Schoonmaker v. Cummings and Lockwood of Connecticut, 252 Conn. 416, 418 (2000), our Supreme Court held that the judicial review of whether an arbitration award implicates or violates an established public policy is a de novo review, however, the court, shortly thereafter, in AFSCME, Local 387, supra, 252 Conn. 476, limited the judicial inquiry by requiring the court to engage in a two-step analysis. "First, the court determines whether an explicit, well defined and dominant public policy can be identified, if so, the court then decides if the arbitrator's award violated the public policy."
The public policy exception to the general rule of favoring arbitration awards was recognized by the U.S. Supreme Court in W.A. Grace Co. v. Rubber Workers, 461 U.S. 757 (1983) in which the court stated, at page 766: " . . . a court may not enforce a collective bargaining agreement that is contrary to public policy . . . the question of public policy is ultimately one for resolution by the courts." In Misco, supra, 489 U.S. 42 the court explained its reasons for carving out the exception:
That doctrine derives from the basic notion that no court will lend its aid to one who founds a cause of action upon an immoral or illegal act, and is further justified by the observation that the public's interests in confining the scope of private agreements to which it is not a party will go unrepresented unless the judiciary takes account of those interests when it considers whether to enforce such agreements.
The court cautioned, however, that any alleged public policy must be " properly framed" and any violation of the same must be " clearly shown," Id., 43. (Emphasis added.)
In their determination as to whether a well-defined, dominant and explicit public policy is implicated our appellate courts have relied upon common sense, the obvious and municipal charters. In most cases, however, the courts have found the requisite public policy "by reference to the laws and legal precedents and not from general considerations of supposed public interests." South Windsor v. Police Union Local 1480, 255 Conn. 800, 815 (2001)8; Groton v. United Steelworkers of America, 254 Conn., 35, 45-46 (2000). In this case, the employer would limit this court's inquiry to that public policy derived only from a violation of law, i.e., the statutes that criminalize the possession of marijuana and those that regulate drug-testing in employment and would have this court ignore any reference to established legal precedent. The union argues, however, that federal and state legal precedent has established a public policy that militates against the automatic termination of an employee who is found to be in possession of marijuana while on the job; on the contrary, the union argues that public policy favors rehabilitation and measured discipline, particularly for an employee with no previous record of any misconduct on the job.
V DISCUSSION
In its brief, the employer makes two basic arguments that it claims should result in the court granting the relief requested. The employer argues that the arbitrator's award violates that public policy that condemns the use of drugs in the workplace, as codified in federal and state statutes. Additionally, the employer argues that the conditions ordered by the arbitrator that permit random testing of Sanders by Atlantic Pipe without reasonable suspicion and that permit his employment to be terminated upon a single reliable positive test are contrary to and violate the restrictions imposed by state statutes governing the conduct of an employer who wishes to test its employees for illegal drugs.
A. The Public Policy Argument
As detailed above, established federal and Connecticut case law places the burden upon the party who raises the public policy exception to the rule favoring strong judicial restraint in reviewing arbitral awards. That party must clearly demonstrate that the award violates a strong, explicit, well-defined and dominant public-policy, that is properly framed and clearly show by appropriate reference to laws and judicial precedent and not by generalized and obvious considerations.
In this case, it is the employer, which by stating the obvious public policy dis-favoring the use of marijuana in general, and in the workplace, in particular, makes the quantum leap from established federal and state anti-drug policy to a public policy that it urges this court to adopt, i.e., that the use of marijuana on the job in an industrial setting mandates automatic termination and that an arbitrator's award that provides for a remedy short of termination is violative of that public policy. Moreover, the employer urges the court to reach that conclusion, without citing one federal or state case to justify such a rash and judicially inappropriate action. On the other hand, the union cites numerous federal and state judicial precedent standing for the proposition that no public policy requires an arbitrator to sustain an employer's decision to terminate an employee who possesses marijuana on the job in an industrial setting.
The employer points to Connecticut General Statutes Section 21a-279(c), which provides for a criminal penalty of $1,000 fine, a year in jail or both, for possession of marijuana The employer cites Enfield v. AFSCME, Council 4, Local 1029, 100 Conn.App. 470, 476 (2007), in order to emphasize what is the obvious, that is, "our state has a well-defined public-policy against the use of marijuana." In that case, a town police dispatcher was fired for possession of marijuana, that was found during a search of his home. The award of the arbitration panel provided for a five-day suspension only. The trial court held that the reinstatement after five days violated public policy and vacated the panel's award. The appellate court reversed on the ground that the trial court failed to afford proper deference to the facts found by the arbitration panel. Most significantly, for our purposes, even though the appellate court agreed with the trial court that there is a "clear public policy of against a police dispatcher regularly engaging in the unlawful use of a controlled substance," making reference to the public policy against the use of marijuana, nevertheless, the court upheld the panel's decision, finding that the trial court improperly substituted its judgment for that of the arbitration panel.
In reversing the trial court, the appellate court, quoting from its prior decisions and those of the Supreme Court, stated:
We do not hold that the violation of a criminal statute is a per se public policy violation sufficient to justify vacating an arbitrator's decision. Moreover, this court has stated that the nature of the infractions committed by the grievant must be examined. We consider in cases such as these the nature of the improper act, its severity and the kind of work the employee performs. As a reviewing court, our role is not to decide whether the grievant's use of marijuana violates public policy. Instead, we must determine whether the determination by the arbitration panel to reinstate the grievant runs contrary to an explicit, dominant and well defined public policy. In answering that question, we are not concerned with whether the award was correct but with whether it violates public policy or whether it can be lawfully enforced. We are mindful that, despite our de novo consideration of the court's decision, the scope of our review is narrowly tailored to reflect our traditional support for arbitration as a favored means of settling disputes. Therefore, in addressing the claim that an award violates public policy, the award should not be disturbed on that ground unless the award clearly violates a strong public policy. Finally, we acknowledge the public policy of encouraging employers, where possible, to provide opportunities for those who have engaged in criminal conduct. The plaintiff, as the party moving to vacate the award, bore the burden of proving that it violated public policy. We conclude that, on the basis of the findings set forth in the arbitration award and consideration of the various competing policies, the plaintiff failed to carry its burden of proving a clear violation of an established public policy.
Id., at Page 476-79.
The employer argues that the arbitrator's award violates a public policy against possession of marijuana in the workplace, as established by the federal Drug Free Workplace Act of 1988, 41 U.S.C. Section 701, et seq. The employer, however, chooses to ignore the remedial language contained in the Act in Section 701 (a)(1)(B)(iii), which provides for, "drug-free awareness programs, drug counseling, rehabilitation and employee assistance programs." The act simply does not provide for, mandate or condone automatic termination of an employee as a result of the possession of marijuana at work. In United Paperworkers Int'l. Union v. Misco, Inc., supra, 484 U.S. 29, 42-44 (1987), the United States Supreme Court held that there is no public-policy requirement that an arbitrator sustain an employer's termination of an employee in an industrial setting for the possession of marijuana at the job site. In CT Page 6620 Saint Mary Home, Inc. v. Service Employees Union, District 1199, 116 F.3rd. 41, 46 (2nd Cir. 1977), the argument advanced by the employer was rejected in a case in which not only marijuana (three quarters of an ounce), but also paraphernalia, was found on the person of an employee, which resulted in his arrest for possession with intent to sell, and his discharge from employment. The arbitrator ordered reinstatement. The district court, rejecting the employer's public-policy argument, confirmed the award. In affirming that decision, the Second Circuit Court, while recognizing, "a strong public policy against the use, possession and sales of drugs," rejected the policy urged by the employer, i.e., "a policy against the reinstatement of a long-term employee [ . . . ] following an arrest for possession with intent to sell marijuana." Id., at Page 46. As indicative of the arbitrator's award in this case, the Second Circuit Court observed that, "rather than mandating automatic termination for possession of drugs at work, it appears that public policy relating to the response for drug related conduct in the workplace is flexible and remedial." Id. Emphasis added. In rejecting the employer's argument, the court stated:
It is telling that the home has cited neither case law or regulations prohibiting reinstatement after suspension of those convicted of drug offenses in the healthcare industry, one of the most heavily regulated industries in the country. [ . . . ] In light of the legal landscape in this area, and the facts of this case, were we to vacate the arbitral award we would be doing so in contravention of well-established and dominant public-policy supporting the validity of arbitral awards based on our view of "general considerations of supposed public interest." Misco, 484 U.S. at 43. Such legislation by judicial fiat does not comport with our judicial function.
Id., at Page 47.
In Poulos v. Pfizer, 244 Conn. 598, 607 (1998), our Supreme Court, in quoting comments of several legislators during the floor debate on Connecticut's drug testing statutes, noted an established public policy that supported employee assistance programs and rehabilitation, that is, a measured and remedial response, to drug related misconduct at the workplace, rather than automatic termination in all cases.
Clearly, the circumstances giving rise to Sanders' termination in this case are much less concerning than those in Saint Mary Home, in that there was no possession with intent to sell, there was no drug paraphernalia found on his person and there was no indication that Sanders had used in the past or was, on the day of his termination, using marijuana at work. This court finds that the employer has failed to meet its burden and that it has failed to show and, based on established precedent, cannot show a dominant and well-defined public policy that mandates automatic termination for drug possession at work or mandates a vacatur of an arbitral award that rejects termination and in lieu thereof provides the measured and remedial response fashioned by the arbitrator in this case.
B. Drug Testing Statutes
The employer argues that the arbitrator's award cannot legally be implemented and enforced as to do so would violate General Statutes Section 31-51x(a), which provides:
(a) No employer may require an employee to submit to a urinalysis drug test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee's job performance. The Labor Commissioner shall adopt regulations in accordance with chapter 54 to specify circumstances which shall be presumed to give rise to an employer having such a reasonable suspicion, provided nothing in such regulations shall preclude an employer from citing other circumstances as giving rise to such a reasonable suspicion.
The employer argues that the quoted section prohibits an employer from randomly testing its employees unless the employer has a reasonable suspicion that the employee is under the influence of drugs. The union, however, correctly points out that such testing is statutorily limited to a urinalysis testing only. Thus, the arbitrator's award, which allows the employer to test Sanders, upon his reinstatement and during the ensuing year, randomly test him for drugs, requires only that the drug test, should the employer exercise its option, be "reliable" and does not specify the type of test to be administered or mandate that the employer actually test Sanders, only that it has the discretion to do so. Therefore, based on the plain language of the statute, the remedy fashioned by the arbitrator in this case does not violate said statute. As our Supreme Court stated in Poulos, supra, 244 Conn. 605-06, in interpreting the statute, it simply provides that "no employer may require an employee to submit to a urinalysis drug test." Emphasis added. In this case, it is totally consistent with the award, and not violative of the statute for the employer to require Sanders to submit to toxicology drug screening by saliva testing or hair follicle testing or any other valid non-urinalysis drug test.
Additionally, the employer argues that the award violates General Statutes Section 31-51u(a) which provides that:
(a) No employer may determine an employee's eligibility for promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action solely on the basis of a positive urinalysis drug test result unless (1) the employer has given the employee a urinalysis drug test, utilizing a reliable methodology, which produced a positive result and (2) such positive test result was confirmed by a second urinalysis drug test, which was separate and independent from the initial test, utilizing a gas chromatography and mass spectrometry methodology or a methodology which has been determined by the Commissioner of Public Health to be as reliable or more reliable than the gas chromatography and mass spectrometry methodology.
Specifically, the employer claims that the award is contrary to this statute, as the remedy fashioned by the arbitrator provides that, "a valid reliable positive drug test within that year, [referring to the year subsequent to Sanders re-employment], will constitute just cause for termination of his employment." Thus, the employer urges the court to vacate the award, as the award provides for termination as a result of one positive test, while the statute mandates that a second test be performed. Again, as the union correctly points out, that statute, as does 31-51x, refers only to "a positive urinalysis test" and requires a "second urinalysis drug test," as confirmation in order to support an employee's termination. Furthermore, as the union asserts, there is no reason to assume that, in its attempt to comply with the conditions of the arbitral award, Atlantic Pipe will violate state statute.
C. The Unrestricted Submission
As noted, the parties agree that this submission to the arbitrator was unrestricted. Both agree that the arbitrator was to decide whether Sanders was discharged for just cause and, if not, what remedy is the appropriate one. In his award the arbitrator answered both questions. In that regard, the award clearly comports with the unrestricted submission. The arbitrator found, in a well reasoned analysis that Sanders' termination was not supported by just cause; he then fashioned a remedy, a remedy with which the employer vehemently disagrees.
As a preliminary matter, we identify the relevant legal principles. The standard of review relative to arbitration awards depends on the nature of the challenge. With a voluntary, unrestricted submission to an arbitrator . . . the court may only examine the submission and the award to determine whether the award conforms to the submission . . . In making such a comparison when the submission is unrestricted, the court will not review the evidence or legal questions involved, but is bound by the arbitrator's legal and factual determinations. (Internal quotation marks omitted.)
Town of Enfield, supra, 100 Conn.App. 473-74.
In a recent case, the appellate court, in a per curiam opinion, affirmed the trial court's decision, which confirmed an arbitration award in a residential remodeling contract dispute and referred to the test by which a court may vacate an arbitration award pursuant to General Statutes Section 52-418(a)(4), due to the arbitrator exceeding his powers relative to the application of the law. The court stated that the so-called, "manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator's extraordinary lack of fidelity to established legal principles . . ."
The court further stated:
In Garrity [v. McCaskey, supra, 223 Conn. 8-9, our Supreme Court] adopted the test enunciated by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of § 52-418(a)(4) . . . The test consists of the following three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable. Cheverie v. Ashcraft Gerel, 65 Co52-418nn. App. 425, 438-39, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001). (Internal quotation marks omitted.)
Nikituk v. Field Co. Builders, 106 Conn.App. 558, 561 (2008).
In this case, the employer cannot establish any of the prongs of the Garrity test, therefore, the employer cannot prove that the arbitrator showed a manifest disregard of the law in fashioning, in his award, the remedy opposed by Atlantic Pipe.
VI CONCLUSION
In conclusion, this court finds that the employer has failed to sustain its burden, therefore, has failed to prove that the award issued by the arbitrator on November 28, 2007, upon the parties' unrestricted submission, violates any established, well-defined, strong and dominant public policy. The employer has also failed to prove that the remedy fashioned by the arbitrator, as part of the arbitral award, i.e., the conditional reinstatement of Sanders, evinces a manifest disregard of the law. On the contrary, the arbitrator, in a well reasoned opinion, did what the parties asked, properly addressed the submitted issues and fashioned a carefully considered, legally sound and measured disciplinary remedy as a result of Sanders' misconduct at work.
VII ORDER
In CV-07-4015994, Atlantic Pipe's application to vacate the arbitration award is denied. In CV-08-4016119, the application filed by Laborers' Union, Local 611 is granted. The arbitration award is thereby confirmed.
Judgments may enter accordingly in each file.
Arbitration Opinion and Award
CT Page 6625
The Proceedings
This dispute between the Laborers Local Union 611, CLDC, LIUNA (the Union) and the Atlantic Pipe Corporation (the Employer) arose as a grievance under the March 1, 2006 though February 28, 2009 collective bargaining agreement between the parties (J. Ex 2), (the Contract). The grievance was processed to arbitration before the above named arbitrator by mutual agreement of the parties pursuit to Article X of the Contract.On September 25, 2007 the parties appeared before the arbitrator for hearing in New Britain, Connecticut at the American Dispute Resolution Center's hearing facility. Both parties were represented at the hearing and were accorded a full opportunity to adduce evidence, examine and cross examine witnesses, and make argument. Witness testimony and documentary evidence were received. Written post-hearing briefs from the parties' representatives were received by the arbitrator by November 1, 2007. The award is to be rendered on or before December 1, 2008.
The Issue
At the September 25, 2007 hearing the parties agreed to the following "Joint Submission" of the issue(s) submitted to arbitration:
Whether the Employer had just cause to terminate John Sanders?
If not what shall be the remedy?
Relevant Contract Provisions ARTICLE III SENIORITY
SECTION 5 Seniority shall be lost by occurrence of any of the following:
***
(b) Discharge for just cause;
. . . ARTICLE XIV
CT Page 6626
SAFETY
SECTION 1 The Employer agrees to abide by all applicable Federal and State safety laws.
All employees are required to observe all safety regulations and report promptly to the Employer any unsafe or hazardous conditions.
Failure to comply with such laws and regulations and the Employer's safety requirements shall be cause for discharge.
Employer will provide forms to the Steward for reporting of safety related problems to the Plant Superintendent and Main Office.
*** ARTICLE XVI MANAGEMENT RIGHTS ***
SECTION 1 The management of the business and the direction of the working force, including the right to hire, lay off, promote, suspend or terminate, discipline, or discharge and issue of company rules are vested in the Employer subject to provisions of this Agreement.
The Employer will not use this Article for the purpose of discrimination against any Employee or to attempt to circumvent any provision contained therein.
Background
The grievant in this case is John Sanders. Sanders held the position of Class I general laborer at the Employer's plant in Plainville, Connecticut. The Plainville plant manufactures concrete retaining walls and concrete pipe. As of December 12, 2006, Sanders had worked continuously for the Employer between one and one half and two years. Sanders also had previously worked for the Employer in the same position at the Plainville plant for approximately one or two years (from 2000 or 2001 until 2002) when he and many other employees were laid off due to a downturn in the Employer's business. There was no record of Sanders (1) having been disciplined during either period of his employment with the Employer or (2) having engaged in any form of misconduct as an employee before December 12, 2006.
On December 12, 2006 the Plainville police came to the Plainville plant to arrest Sanders on an outstanding warrant for a motor vehicle violation which did not involve his employment. The charge was "evading responsibility." Sanders was at work. A police officer patted him down per standard procedure incident to an arrest. The pat down resulted in marijuana being found on Sanders' person. He was arrested for possession of marijuana
The parties have stipulated that for purposes of the instant arbitration proceeding, Sanders "was in possession of marijuana on company property on December 12, 2006 during his shift." There is no claim that Sanders (1) was under the influence of marijuana during his shift, or (2) used marijuana during his shift, or (3) transferred or intended to transfer (e.g., sell) marijuana to anyone, or that (4) anyone knew or would have learned that Sanders was in possession of marijuana that day but for the need for police to pat him down incident to the "evading responsibility" arrest.
The Employer has two posted written work rules. They are posted on the bulletin board in the employee lunch room and have been in effect since at least November 1, 1993. They state as follows:
NOVEMBER 1, 1993
TO WHOM IT MAY CONCERN:
1) IT IS THE COMPANY POLICY OF ATLANTIC PIPE CORPORATION THAT NO DRUGS OR ALCOHOLIC BEVERAGES BE ALLOWED ON COMPANY PROPERTY. THEREFORE, ANYONE CAUGHT USING DRUGS OR CONSUMING ALCOHOLIC BEVERAGES WILL BE SUBJECT TO DISCIPLINARY ACTION, WHICH COULD RESULT IN TERMINATION OF ONE'S EMPLOYMENT.
2) IT IS THE COMPANY POLICY OF ATLANTIC PIPE CORPORATION THAT ANY AND ALL PERSONNEL ENGAGED IN DUTIES ON COMPANY PROPERTY ARE REQUIRED TO WEAR HARD HATS AT ALL TIMES. ANYONE NOT WEARING A HARD HAT IS SUBJECT TO DISCIPLINARY ACTION.
(J. EX 3)
There are a little over fifty (50) bargaining unit employees at the Plainville plant. There is no history of any employee previously having violated these work rules and no history of any employee having been disciplined for violating them. There was no evidence of any training or other oral explanation having been given to employees concerning the meaning or application of these work rules.
Paul Varrato is the Plant Manager at the Plainville plant. He has worked for the Employer since 1967, starting as a bargaining unit member. Varrato held management positions as Plant Foreman and Plant General Foreman before becoming Plant Manager. He is responsible for operations in all of the plant's six departments, chairs the plant's safety committee, and has responsibility for hiring, firing, discipline of employees, etc.
On December 12, 2006, Varrato knew the Plainville police were coming to the plant to arrest Sanders on the "evading responsibility" charge. Varrato was not personally present while Sanders was arrested. Varrato was in his office.
Later in the day, Varrato received a telephone call from a Plainville police officer who told Varrato that Sanders had been in possession of illegal drugs at the time of his arrest on Employer property. Varrato asked the officer "if this will be documented by the police." The officer said it would be documented. Varrato told the officer that he (Varrato) therefore would have to terminate Sanders' employment. By the next day Varrato notified Sanders that his employment was terminated.
The Employer adduced considerable evidence at the hearing intended to show that the Plainville plant worksite is highly dangerous. That evidence will be addressed in the Discussion section of the award.
Positions of the Parties
The basic facts of the case are not disputed. One exception is whether Sanders' job as Class I Laborer entails as much potential danger as higher rated jobs which involve operation of large machinery. Apart from that, the real dispute between the parties is: (1) whether posted work rule 1 expressly permits or requires termination upon a first offense when the offense is possession of marijuana, (2) whether general principles of just cause permit Sanders' termination even if posted work rule 1 does not expressly permit or require his termination. The parties have submitted post-hearing briefs that are very thorough addressing these questions. With regard to the question of just cause, both parties have cited and discussed numerous awards by grievance arbitrators in a variety of industries, as well as court decisions reviewing grievance arbitration awards in drug misconduct cases. I have read the awards and court decisions with care.
The Employer's core position is that posted work rule 1 requires termination when an employee is caught in possession of an illegal drug on Employer property and that, even apart from that work rule, principles of just cause support the grievant's termination for the first offense. The Union's core position is that posted work rule 1 cannot plausibly be read to permit, let alone require, termination for "mere" possession of an illegal drug on Employer property and principles of just cause do not otherwise support the grievant's termination for such an offense when it is a first offense and the employee's work record is otherwise unblemished.
Discussion A. The Merits
Nearly all industrial manufacturing plants are dangerous worksites. The Employer's Plainville plant is no exception. Sanders is a laborer at that site. His job does not include operation of machinery. In this respect, his job is less dangerous to others than jobs at the plant which require operation of machinery. Still, the laborer job carries with it danger to the laborer himself. The level of that danger is significant.
The Employer argues that its concrete products, especially retaining walls, are relied upon by the public for protection. That undoubtedly is true. The quality and physical integrity of the products sold by the Employer must be high to protect the public. On the other hand, the record does not specifically show how the laborer's job functions bear upon the quality and physical integrity of the Employer's products.
In the arbitration and court decisions cited in this case, no widely accepted and understood principle is uniformly established that termination is the automatic penalty for a first offense of marijuana possession while at work in an industrial manufacturing worksite. There is an exception to this, but it exists on an employer by employer basis. The exception is that termination of employment will be recognized as the automatic penalty for a first offense if the employer in question has a clear and unambiguous work rule requiring that penalty and that rule has been communicated to the employees.
Employer work rule 1 has been communicated to employees. However, that rule does not clearly and unambiguously address the disciplinary penalty for bringing alcohol or illegal drugs onto the Employer's property. Such conduct is clearly and unambiguously prohibited by the first sentence of rule 1, but the rule says nothing whatsoever about the penalty for such an offense. The second sentence of the rule prohibits an employee from "using drugs or consuming alcoholic beverages." The penalty for an employee who engages in that misconduct is stated as follows: " . . . will be subject to disciplinary action, which could result in termination of one's employment." Thus, even when the employee is "caught" actually consuming alcohol or illegal drugs on the Employer's property, termination is not automatically required under work rule 1 (although the rule does fairly inform employees that the Employer reserves discretion to impose termination for such misconduct depending upon the overall circumstances).
The drug use or alcoholic beverage consumption prohibition clearly concerns on-site consumption.
In sum, the text of work rule 1 does not address the penalty for bringing illegal drugs into the worksite and does not place employees on notice that termination will or even might be the penalty. Work rule 1 certainly does not require that termination be the penalty regardless of the overall circumstances. Accordingly, Sanders' termination for being in possession of marijuana on December 12, 2006 must be evaluated under recognized general principles of just cause since there is no work rule requiring automatic termination.
Illegal drug use is contrary to public policy. Possession by an employee of illegal drugs, including marijuana, at an industrial manufacturing worksite also is contrary to public policy. However, termination upon a first offense for possession of marijuana in such a worksite is not required by public policy unless there is a public law requiring it. There is no such public law applicable to the Employer's Plainville plant employees. Additionally, there is a competing public policy that militates in favor of rehabilitation. That policy can be overcome by a specific work rule requiring termination, but as was discussed earlier herein, there is no such work rule here insofar as mere possession is concerned.
The grievant in this case, Sanders, had a clean work record. He had no previous discipline of any kind. There was no record of poor workmanship or of attendance or attitude problems. There was nothing to indicate he was a substance abuser except the Plainville police finding marijuana on his person as a result of patting him down on December 12, 2006. There is no indication in the record that he sold or otherwise disseminated marijuana to anyone else. This is a case that purely and simply involves a first offense of possession of marijuana on the employer's property by an employee with an otherwise unblemished work record.
In such a case there is little support for termination in the arbitral and judicial precedent cited in the record. An unpaid disciplinary suspension coupled with a clear warning that any further involvement with illegal drugs by Sanders would result in termination was all the discipline that could be supported by just cause. Additionally, a prophylactic measure would be justified since Sanders' possession of marijuana on the Employer's property raises a reasonable suspicion that he might use marijuana in the future and such use could affect his ability to work safely. That measure is that Sanders be subject to random drug testing by the Employer.
B. Remedy
Since there was not just cause for Sanders' termination, he will be ordered reinstated to his job with the Employer and his seniority shall be restored to him. Ordinarily backpay is awarded when an employee's termination is reversed and he is reinstated. An offset to back pay would be provided for the period of any unpaid disciplinary suspension which the arbitrator believes justified. The longest disciplinary suspension that reasonably could be justified for Sanders' misconduct is thirty (30) calendar days.
Sanders' reinstatement shall be no later than seven (7) calendar days after issuance of this award. His reinstatement will be conditional. The first condition is that he submit to and pass a valid reliable drug test before he returns to work. Second, following reinstatement Sanders shall be subject to random drug testing at the Employer's discretion during the first year following his reinstatement. Third, a valid reliable positive drug test within that year will constitute just cause for termination of Sanders' employment. Additionally, any future instance of Sanders' bringing illegal drugs on the Employer's property will constitute just cause for termination of his employment.
The backpay award shall be retroactive to Sanders' date of termination and shall include the wages and contractual benefits he lost since his termination. The backpay award shall be offset (reduced) by the following:
(1) Four weeks (160 hours) of straight time pay. This offset is provided because a thirty (30) day suspension would have been justified.
(2) Earnings received by Sanders from alternative employment since his termination.
(3) Unemployment compensation benefits received by Sanders since his termination.
Sanders' work record shall reflect a thirty (30) day disciplinary suspension for his December 12, 2006 misconduct.
Award of Arbitrator
The Employer did not have just cause to terminate John Sanders.
The remedy is:
(1) The Employer shall reinstate Sanders to his job subject to the conditions set forth above (under Remedy).
(2) Sanders shall be made whole for lost wages and contractual benefits since his termination as set forth above (under Remedy).
(3) Sanders' seniority shall be restored to him, including the time since his termination.
(4) Sanders' work record shall reflect a thirty (30) day disciplinary suspension.
J. Larry Foy, Esq. Arbitrator