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EQUITABLE GAS CO. v. USW

December 30, 1987

Equitable Gas Company, A Division Of Equitable Resources, Inc., Plaintiff,
v.
United Steelworkers Of America, AFL-CIO-CLC; and United Steelworkers of America, Local Union 12050, Defendants



The opinion of the court was delivered by: COHILL

 COHILL, C.J.

 Presently before us are cross-motions for summary judgment. By its complaint and summary judgment motion, plaintiff Equitable Gas Company seeks to have this Court vacate an arbitration decision made pursuant to its collective bargaining agreement with the defendants United Steelworkers of America, AFL-CIO-CLC, and United Steelworkers of America, Local Union 12050. The defendants' motion seeks to have the arbitration award upheld. There being no dispute as to the facts, the case is ripe for decision by summary judgment. For the reasons set forth below, we will decline to vacate the arbitration award. However, we will remand this case to arbitration for further adjudication in accordance with this Opinion.

 I. FACTS

 On January 7, 1985, the plaintiff and the defendants entered into a collective bargaining agreement covering the terms of employment for certain hourly employees in plaintiff's distribution and technical services department. See Exhibit A of the Complaint. The plaintiff is a public utility engaged in the sale and distribution of natural gas. James Bivens, the grievant involved in the underlying dispute in this case, was an employee of the plaintiff and was covered by the collective bargaining agreement.

 On May 27, 1986, the grievant was examined by a physician employed by the plaintiff. After the examination, the grievant was told to return to work the following day. The grievant did not do so. Instead, he notified the plaintiff that he was unable to work due to pain and occasional numbness in his left arm and neck. The plaintiff then directed him to report for further medical evaluation at 9:00 a.m. on May 29, 1986.

 Mr. Bivens failed to keep this appointment. At 2:30 p.m. on May 29, he called the plaintiff and explained that he had taken pain pills the night before and had accidentally slept through his appointment. The plaintiff rescheduled the appointment for May 30. Prior to the grievant's arrival the next day, the plaintiff made the decision to conduct a drug test on the grievant. At the examination, Mr. Bivens was directed to provide a urine sample. He at first complied but then discarded the sample when he was informed that the sample would be tested for drug residue. He then refused to submit to further examination.

 On June 3, 1986, the plaintiff notified the grievant by letter that his actions violated the Allowance Policy and that payment to him under the policy was being discontinued as of May 28, 1986. Mr. Bivens did not respond to this notice. On June 11, 1986, he initiated a grievance with the plaintiff to recover the policy benefits. The plaintiff denied the grievance.

 On June 13, 1986, the plaintiff sent a second notice. The letter instructed Mr. Bivens to contact the plaintiff to arrange a meeting with plaintiff's medical director before June 20, 1986. He was also told to supply documentation from his physician to substantiate his absence from work. The plaintiff also noted that the grievant would be required to submit to any medical tests requested by the medical director. The grievant was told that he would be fired if he failed to comply with the plaintiff's demands.

 Mr. Bivens appeared for a medical examination on June 20. He was asked to sign a release authorizing drug testing and he refused. He was then told that there would be no examination without authorization for the drug test and he left without undergoing any examination. On June 25, 1986, plaintiff sent Mr. Bivens a notice of discharge. The notice stated that he was being terminated in light of his job responsibility of locating leaks of a lethal commodity, his refusal to submit to an examination by plaintiff's doctor on June 20, 1986, his continuing absence from work and his failure to comply with the requirements set forth in the letter of June 13, 1986.

 Subsequent to his firing, Mr. Bivens filed a second grievance claiming that his discharge was not supported by just cause. The plaintiff denied the grievance and the claim was presented to arbitrator Richard Dissen.

 II. THE ARBITRATOR'S AWARD

 Arbitrator Dissen issued his Opinion and Award on April 9, 1987. His analysis focused on two issues; (1) whether the plaintiff properly discontinued payments to the grievant under the Allowance Policy, and (2) whether the plaintiff properly terminated the grievant.

 Addressing the first issue, Arbitrator Dissen recognized that in certain circumstances employers may demand that an employee undergo drug testing or risk termination. He discussed numerous cases wherein drug testing was found warranted where the employer became suspicious of the employee's behavior while at work. He distinguished those cases from the circumstances presented here;

 
In the instant case, management's insistence upon a drug screen cannot be perceived as an action taken to protect its operations from the imminent hazard of having an impaired employee on the job. The Grievant was not at work or even attempting to report to work. The Grievant was off work and, apparently, hoped to remain off work for some additional period of time. The Grievant's condition, whatever it may have been, posed no imminent threat to the Company's operations.

 Arbitrator Richard Dissen's Opinion and Award, p. 10-11.

 Arbitrator Dissen also found it significant that the grievant was not alleged to have had any known history of drug dependence or to have engaged in any erratic on-the-job behavior. He found that the May 29 incident could not be regarded as any indication of an ongoing drug problem that warranted investigation. Although the grievant had had a greater than average number of absences over the years, Arbitrator Dissen found this to be "only the scantest indication of possible ongoing substance abuse." Id. at 11.

 Section 1(A) of Appendix 3 of the Allowance Policy provides that an employee must comply with certain listed requirements in order to be entitled to an allowance. The sixth requirement is that the employee must permit examinations and inquiries by company medical representatives. The terms "examination" and "inquiries" are not further defined. Section 1(B)(2) of Appendix 3 provides that the injury or illness which causes an employee to be absent from work must not be the result of harmful drugs or intoxicants.

 Based on arbitration precedent, Arbitrator Dissen found that a prerequisite to employee drug testing is some objective indication to the employer of more than a remote likelihood of impaired job performance. In this case, there was only "an isolated, off-the-job use of a drug by ...


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