FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 95-01944

UNITED STEELWORKERS LOCAL NO. 81,

Union,

and

DRAVO LIME COMPANY, LONGVIEW

DIVISION, SAGINAW, ALABAMA,
A SUBSIDIARY OF DRAVO CORPORATION,
Employer.
_________________________________________/

OPINION OF THE ARBITRATOR

July 23, 1995

After a Hearing Held June 9, 1995

In the Corporate Offices, Saginaw, Alabama

For the Union: For the Employer:

Morris Anderson, Staff Representative Charles A. Powell, III

United Steelworkers of America Powell & Frederick
District 36 2100 First Avenue North
6200 E J Oliver Boulevard, Suite 44 Suite 700
Fairfield, AL 35064-1209 Birmingham, AL, 35203
 Grievance

The principal events in this matter transpired between Monday, September 12,

1994, and Monday, September 19, 1994. On Monday, September 12, 1994, Grievant

was stacking bags of lime, when some got into his eye. He did not report the injury

until the next day, Tuesday, September 13, 1994, at which time he was examined on

the premises (CX 1). In addition to evidencing a lime burn, Grievant exuded a strong

odor of alcohol (TR 11-12, 22).

Grievant was asked if he wanted to see a doctor, and, after some initial

hesitation, he agreed to do so. He was taken to a doctor and examined on Tuesday,

September 13, 1994 (CX 1). As a routine part of the examination, Grievant was given

drug and alcohol tests (CX 2). His blood alcohol level was 0.141, some 2-3 hours

after he reported to work. In Alabama, the standard for DUI is 0.100. The results of

the drug and alcohol tests were not available until Friday, September 16, 1994.

While awaiting the results of the drug and alcohol tests, Grievant reported to

work on Wednesday, September 14, 1994, but could not hold his eye open (CX 1,

Supervisor's Investigation of Report of Injury and Illness).1 Grievant then returned

home. He worked on Thursday and Friday, September 15-16, 1994. The results of the

blood and alcohol tests (CX 2) were received by the Employer (or "Company") on

Friday afternoon, September 16, 1994, after Grievant had left work for the day.
1
Note that there is a typographical error under the “Remarks” section of the report. The date “8/14/94” should be
9/14/94.
 Because of the seriousness of the offense, a meeting was arranged for the next

morning, Saturday, September 17, 1994 (JX 1, Section 7.B), a day on which Grievant

was scheduled to work. Grievant attended the meeting along with representatives of

the Company and the Union. Grievant was intoxicated and unable to work that day

(TR 82). Pursuant to the contract, he was suspended.

On Monday, September 19, 1994, Grievant was given a notice of termination,

effective that day (CX 4). A grievance, dated September 24, 1994, was filed with the

Company (JX 2). The nature of the grievance was stated as follows (JX 2):

THE COMPANY HAS GIVEN EMPLOYEE'S CAUGHT WITH

ALCOHOL IN THEM A SECOND CHANCE IN THE PAST.

The grievance was denied, and the matter proceeded to arbitration.

The Drug and Alcohol Policy

The parties agreed to a drug and alcohol policy (JX 1, Section 23), the terms of

which are set forth in Exhibit B, pages 31-34 of the contract (JX 1). The policy is

strict and has safety as one of its primary goals. Pertinent provisions are the

following:

Exhibit B, Section III, Policy:

Dravo Corporation prohibits all individuals, including employees ..., from ...
being under the influence of alcoholic beverages while in the work place.

Exhibit B, Section IV, Prohibited Items and Substances:

 The items and substances covered by this policy include ... alcoholic beverages
….
Exhibit B, Section VI, Testing for Drug Use:

Dravo Corporation will utilize drug screen testing in the following

circumstances: ... As part of the Company's investigation of any accident
involving personal injury ... Management will decide if a given circumstance
meets these criteria.

Exhibit B, Section VII, Employees or Non-Employees on Company Premises Under

the Influence of Prohibited Substances:

Employees present in the work place while under the influence of any
prohibited substance, including alcoholic beverages, will be subject to ...
disciplinary action, including discharge.

Two points about the contract bear noting. First, under the terms of Exhibit B,

Section VI, the use of drug and alcohol testing cannot be arbitrary and capricious:

"Management will decide if a given circumstance meets these criteria." Everyone

sent to the doctor by the Company is given drug and alcohol tests (TR 13, 46-47).

The Union does not argue that this rule is outside the scope of management rights or

arbitrary and capricious under the contract. Moreover, the Grievant in this particular

matter exuded a strong odor of alcohol when he voluntarily agreed to go to the doctor

(TR 14-15).

Second, notwithstanding the existence of a strong drug and alcohol policy, the

Company may not discharge an employee peremptorily, but must afford an employee

accused of violating the policy procedural due process (JX 1, Section 7.B, Discharge

of Employees). The Union does not allege any violation of procedural due process.
 The Grievant's principal argument is that he should be given a second chance

(JX 2). There are several reasons why this argument is unpersuasive:

1. Grievant was given a second chance. He came to work on Tuesday,

September 13, 1994, and again on Saturday, September 17, 1994, under the influence

of alcohol (TR 82). Thus, he had two bites at the apple.

2. Under a Report in Conference dated January 16, 1984 (CX 5), Grievant

was given a 5-day suspension for working under the influence of alcohol and "was

told he was on a strict probation and would be terminated the next time ... ." Grievant,

therefore, had his second chance.

The Union argues that the Report in Conference (CX 5) should have been

removed from Grievant's personnel file, pursuant to Paragraph 6, Miscellaneous

Matters (JX 1, page 26), which provides:

Warning letters shall be removed from an employee's personnel records after

one (1) year.

The Company counters that the Report in Conference is not a "warning letter" within

the meaning of the contract but rather constitutes a "last chance agreement".

However, it is difficult to ignore the cautionary, even threatening, import of the

Report.

Based upon the Company's characterization of the Report, a more persuasive

argument might be made under Section 17, Scope of Contract (JX 1), which provides

in pertinent part:
 [T]his Agreement is made with the express understanding that there are no
side agreements ... .

Although the Report in Conference might be classifiable as a "side agreement"

(especially considering its date of January 16, 1984), the Union has not raised the

issue, and I do not decide it. Most importantly, my decision does not hinge upon CX

5.

3. Nowhere does the contract call for a second chance, especially not for

the type of behavior in which Grievant engaged. In general, the concept of

progressive discipline is not intended as an invitation for employees to see how far

they can push the envelope, but rather as a principle under which management can

tailor discipline to fit the offense. Even under a system of progressive discipline, a

first offense can go completely off the chart, as did Grievant's intoxication in this

matter.

Although at the hearing, there was much discussion of a past practice

regarding offenses involving alcohol, none was proven, and the Union does not

pursue the issue in its brief. There is no bright line test as to how many occurrences

constitute a practice, but four (half of which involved Grievant himself) certainly do

not in this case.

One of the other two incidents involved a supervisor, who summarily was

fired (without even the benefit of a blood test) for coming to work under the influence

of alcohol (CX 6). Since the supervisor was not a member of the Union and not
covered by the contract, it probably is not even proper to count him toward a past

practice. In any event, his treatment by the Company was certainly consistent with

Grievant's.

In the other incident, concededly involving a Union member covered by the

contract, the employee's blood alcohol level of 0.085 (UX 1) was significantly lower

than Grievant's (0.141). Thus, it was well within management's discretion to impose a

lighter penalty (JX 1, Section 7.A, page 10; Exhibit B, Section VII, page 33). This

paltry handful of isolated incidents does not give rise to any past practice.

Conclusion and Award

In the matter before me, Dravo Lime Company has presented a prima facie

case of misconduct under the contract, of the type which may result in discharge (JX

1, Exhibit B, Section VII). See Elkouri and Elkouri, How Arbitration Works, Fourth

Edition, Table of Offenses, at 705; 1985-89 Cumulative Supplement, at 199-200. The

Union has failed to come forward with countervailing or mitigating evidence. For all

the foregoing reasons, the grievance is DENIED.

________________________
E. Frank Cornelius, Arbitrator