Employer Cannot Enforce Zero Tolerance Drug Policy That It Never Provided To Union, Arbitrator Rules

Attorney Terry Coles persuaded an independent arbitrator that an employee represented by UFCW Local 1459was wrongfully terminated for violating an Employer's zero tolerance drug testing policy. The Union and the Employer negotiated contract language that provided for random drug testing of employees. The policy originally offered rehabilitation to employees who tested positive. The parties later agreed to remove the drug testing language from the contract and let the matter be controlled by an Employer policy. The contract permitted the Employer to unilaterally revise the policy if the revisions were necessary to comply with applicable laws and regulations. But voluntary changes to the policy required the Employer to notify the Union in advance and consider alternatives suggested by the Union.

Here, the Employer could not convince the arbitrator that the Employer ever gave the Union a copy of its revisions to longstanding policy, as was required by the contract and the law. The Arbitrator found that the Employer's claim that it did provide a copy to the Union was not supported by other Employer witnesses or common sense. As a result, the Employer actively led the Union to believe that the drug testing policy was not a zero tolerance policy. The Union eventually learned of the "zero tolerance" policy when the Employer terminated the Grievant.

Because the Arbitrator concluded that the policy changes were not enacted in line with the contract, the Arbitrator ruled that the zero tolerance policy could not apply to the grievant. He upheld the Union's grievance and directed the parties to discuss settlement amongst themselves. The parties can come back to the Arbitrator if they do not reach agreement.