This is a summary of Regular Panel Arbitrator Margo R. Newman in cases C06T-1C-D- 09046953 and C06T-1C-D 09064186 regarding and Emergency Suspension and Discharge of the grievant for “Improper Conduct”. The arbitrator sustained the Union’s grievances ; she properly ruled the Postal Service did not establish just cause for grievant’s Emergency Placement or removal; she ordered the grievant be reinstated and paid back pay in the amount agreed to by the parties as a result of a joint review of the pertinent records for the relevant period of time.

Grievant is a Level 5 Maintenance Mechanic assigned to Tour 1 at the Cincinnati P&DC with 16 years seniority. He was hired by the Postal Service as a partially disabled veteran, having broken his back while in the service. He was issued an Emergency Placement and the Notice of Proposed Removal by his supervisor for Improper Conduct based upon grievant’s testing positive for alcohol in his system while he was on duty. The incident resulting in grievant’s taking a breathalyzer test occurred close to the end of his shift on November 12th. The supervisor testified that at some point during the tour the grievant looked unsteady on his feet, smelled of alcohol, slurred his words and had bloodshot eyes. Based on the single observation the supervisor sent the grievant for a Fitness for Duty Exam. The report from the Hospital indicated the grievant had tested positive for alcohol. At this point the grievant was placed on Emergency Suspension.

The Union asserted that no just cause for discharge has been proven. It claims that there has been no showing of a violation of any rule applicable to grievant by his having a .02% blood alcohol level. The Union contends that ELM §665.26 deals with no drinking on duty and reporting or returning to work intoxicated. It notes that there was no evidence of grievant’s drinking on the job or proof of intoxication, which is admittedly not the charge against him. The Union points to the fact that the only rule concerning percentages applies to CDL (Commercial Drivers License) drivers, and the parties negotiated in the JCIM (Joint Contract Interpretation Manual)  a procedure whereby a driver testing between .02 and .08 (the legal level of intoxication in the State of Ohio) is put off of work for one day on EAL and returned to work the next day. It insists that grievant was treated more harshly than a CDL driver who has to meet Federal standards when he was put on EP and then removed. The Union also noted the grievant was fired despite the fact that he had a positive BAT (breath alcohol testing) at below the legal intoxication limit under that misapprehension. The Union argued that the Employer cannot meet the charge just by showing grievant had a positive test result, absent any evidence from a doctor saying he was unfit for duty or intoxicated, or complaints about his work from supervisors or fellow employees, citing USPS Case No. H90C-1H-D-96010431 (Durham, 1996). It insisted that there was no substantiated evidence that grievant was told to report for a retest the following day. The Union argued that the test results are not reliable, citing USPS Case Nos. C90V-1C-D 95070215 (Blackwell, 1996) and E7C-2D-D 36749 (Cushman, 1991).

It noted that (1) the request for the FFD (Fitness for Duty) exam did not comply with regulations and requirements on what must be included, (2) there is a discrepancy between the test strips and agreed testimony that grievant was back in the plant by 9:00 a.m. which was unexplained, (3) there is no proof of proper calibration of equipment or qualifications of the operator, (4) no results of the FFD were sent to the Postal Service, and (5) there was no testing of his condition while he was on duty, as the test occurred after the end of his tour when he was off the clock. The Union also maintained that grievant was denied his day in court, violating his due process rights and providing an independent basis to overturn the discipline. Finally, the Union argued that the actions taken against grievant were inappropriate. With respect to the EP, the Union contended that at most grievant should have been put on annual or sick leave on November 12, 2008 and permitted to return to work the following day based on what the parties have agreed to in the JCIM for drivers. It notes that the cited basis for the EP – Inappropriate Conduct – is not contained in Article 16.7, and there was no showing of intoxication.

Here is the language from the ELM:

EMPLOYEE & LABOR RELATIONS MANUAL

Section 665.26 – Intoxicating Beverages

Employees must not drink beer, wine, or other· intoxicating beverages while on duty; begin work or return to duty intoxicated;or drink. intoxicating beverages in a public place while in uniform.Unless the postmaster general specifically authorizes an exception (for example, an official reception), employees must not have or bring any container of beer, wine, or other intoxicating beverage into any Postal Service facility or premises, whether or not the container has been opened. Employees found to be violating this policy may be subject to disciplinary action.

The arbitrator sustained the Union’s grievances, in so doing she appropriately ruled:

The crux of the issue in this case is the proper interpretation of ELM §665.26, since both the EP (Emergency Placement) and  NOR (Notice of Proposed Removal) are based upon grievant’s testing positive for alcohol while on duty, and rely upon this provision as having been violated by such a test. The Postal Service’s view is consistent with the position of Pittl and Holmes, that ELM §665.26 is akin to a Zero Tolerance Policy (ZTP), and is violated by proof of the presence of any amount of alcohol in the system. The language used clearly prohibits drinking intoxicating beverages while on duty and in public while in a Postal Service uniform. There is no proof in this case that grievant did either, although Holmes’ testimony establishes beyond doubt that he was convinced that the former had occurred. The only evidence of grievant’s drinking was on November 12, 2008 at noon after he was off the clock; there is no evidence that he was in uniform at the time. The portion of the provision applicable in this case is its prohibition against beginning work or returning to duty intoxicated. . . Therefore, I conclude that ELM §665.26 requires a finding that grievant was intoxicated while on duty to support a violation, and that testing at .027 and .022 almost one and one-half hours after he was off duty is insufficient alone to prove this fact. No evidence was presented about absorption levels and what could be scientifically concluded about grievant’s blood alcohol level hours earlier based upon these test results. Holmes’ testimony about his conversation with the BAT technician is hearsay and does not constitute a valid scientific conclusion or reveal the factors underlying such opinion. Grievant was not charged with being intoxicated, only with having a positive alcohol test while on duty. In order for the Employer to prove that it had just cause to put grievant on EP, it must show that his conduct fell within one of the six listed categories in Article 16.7 and created a perceived immediate danger or risk. The EP lists the basis of the action as “Improper Conduct” which is not one of the listed categories. However, it clearly relies upon the category of “where the allegation involves intoxication (use of drugs or alcohol).” Having found that the Employer did not prove the requisite intoxication under ELM §665.26, its decision to place grievant on EP cannot be upheld based upon this category. In fact, since Pittl did not know grievant’s blood alcohol level, and only knew that he had a positive test for alcohol and smelled alcohol on grievant’s breath, he did not act based upon an allegation of intoxication, but only the existence of a positive test.

Gary Kloepfer
Assistant Director
American Postal Workers Union, AFL-CIO

note: PostalReporter.com added a paragraph from the case and clarified some points of the summary.