Monday, September 10, 2001
Court Upholds Rehire Order After Drug Tests Reviewed by Phony Doctor
By a MetNews Staff Writer
An arbitrator didn’t exceed his authority when he ordered the Southern California Gas Company to reinstate two fired workers after it was discovered that the “doctor” who examined the positive results of their random drug tests wasn’t licensed, the Ninth U.S. Circuit Court of Appeals ruled Friday.
“It is well-settled that federal labor policy favors the resolution of disputes through arbitration; thus, judicial scrutiny of an arbitrator’s decision is extremely limited,” Senior Judge Melvin Brunetti said.
Judge Michael Daly Hawkins concurred, but Senior Judge Arthur L. Alarcon dissented strongly.
Alarcon argued that the decision “directly conflicts with the clear language of the applicable collective bargaining agreement and violates firmly established public policies” against retaining employees who test positive for drugs in sensitive positions.
Pipeline crew assistants Lorenza Wilson and Gerry Daniel were hired in 1983 and 1984, respectively, and fired in 1995 after they tested positive for controlled substances—Wilson for cocaine metabolites and Daniel for marijuana, amphetamines, and methamphetamine.
The tests were administered pursuant to rules of the Department of Transportation for employees in safety-sensitive positions.
Under the DOT regulations an independent laboratory examines the drug samples. An independent physician retained by the company as “medical review officer” then examines the results and determines whether there may be an innocent medical explanation for a positive result, such as the ingestion of a prescribed medication.
The collective bargaining agreement between the gas company and the Utility Workers Union, Local 132, allows the company to fire, without regard to prior discipline, any employee whose positive test result is confirmed by the MRO, unless the employee has at least 15 years’ seniority. In the latter scenario an opportunity for rehabilitation and reinstatement must be given.
The union filed a grievance on behalf of Daniel and Walker after the medical review officer in their cases, Gerald Barnes, was unmasked as a phony. He used fake credentials to obtain employment with the medical group contracted by the gas company to conduct the reviews, and was sentenced last year to 12 years in federal prison for posing as a doctor and defrauding the federal government in the process.
Another medical review took place, and the doctor concluded that the test results were accurate. But the union claimed there was no basis for a second review and took the grievance to arbitration.
The arbitrator rejected the union’s claim that the samples had been tampered with. He said there was no misconduct on the part of the gas company, which had no reason to suspect Barnes wasn’t a doctor, and said he had little doubt that the employees had ingested the illegal substances.
The workers were, however, entitled to reinstatement, the arbitrator ruled. He said he was reluctant to compel the company to take them back, but that he had no choice in light of a DOT regulation requiring that test results be “reviewed by a qualified physician before the Company takes action.”
Brunetti said the arbitrator had correctly framed the issue as being whether the tests were properly administered, rather than whether the employees had taken illegal drugs. It is the failing of a test, not the usage of drugs, that results in termination of an employee, the judge noted.
The judge also rejected Alarcon’s concern that the public was being endangered by the reinstatement of the pair to their jobs on the pipeline. He noted that they agreed to submit to drug testing before returning to duty, and remain subject to random testing while employed.
Alarcon argued in dissent that since there was no real question that Walker and Daniel had failed the tests, and that they were in fact drug users, they were properly fired. The arbitrator, he said, erred in relying on the language of the regulation rather than basing his decision solely on the collective bargaining agreement.
The CBA, he insisted, could not plausibly be interpreted as requiring the company to take the pair back. And as a matter of public policy, he said, the agreement should have been interpreted against the union’s position.
Allowing drug-using employees to return to work “undoubtedly poses a danger to public health and safety because the gas pipeline industry, like the nuclear power industry, is extremely hazardous.”
The appeal was argued by Timothy S. Lykowksi of Gibson, Dunn & Crutcher for the gas company and Glenn Rothner of Rothner, Segall & Greenstone for the union.
The case is Southern California Gas Company v. Utility Workers Union of America, 98-56842.
Copyright 2001, Metropolitan News Company