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Cite as: Kellogg Company, 93 Lab. Arb. (BNA) 884 (1989, Clarke, Arb.)
AMERICAN FEDERATION OF GRAIN MILLERS LOCAL 252
Decision of Arbitrator
Arbitrator's File No. 1989-1141
August 9, 1989
Appearances: For the company -- ADAM J. CONTI (Mack & Bernstein), attorney;
Bruce J. Rasch, associate general counsel; William L. Taylor, personnel and
organizational development manager; W. Douglas Sackett, industrial relations
director; William R. Duggan, corporate safety and security director; Jacob
Mickens, labor relations supervisor; Gary M. Laipple, agent, Professional Law
Enforcement. For the union -- Lynn Agee (Agee, Allen, Godwin & Morris),
attorney; Anthony L. Johnson, international representative; B. J. Evans, local
business agent and president; Larry W. Warren, former business agent and
president; Marvin H. Tompkins, vice president; Preston Nowlin, recording
secretary; Ronald D. Nelson.
Arbitrator: Jack Clarke
The Grievant was discharged on November 22, 1988. The present grievance which
objects to that action was submitted to the Company in writing on that date.
The grievance was processed in accordance with article 7 "Grievance Procedure"
of the Master Agreement between the Company and Union effective from October 4,
1987 to September 30, 1990 (hereinafter "1987 Master Agreement") and article
II "Grievance Procedure" of the Supplemental Agreement between the Company and
Union effective from December 6, 1987 to November 19, 1989 (hereinafter "1987
Arbitration Award of Jack Clarke in Kellogg CompanyPage 1
Supplemental Agreement"). [FN1] Following unsuccessful attempts at resolving
the grievance it was referred to arbitration in accordance with article 7 of
the 1987 Master Agreement and article
II of the 1987 Supplemental Agreement.
The parties stipulated the issues to be resolved in the present arbitration to
be whether discharge of the Grievant was for cause and, if not, what shall the
Pertinent Provisions of the Master Agreement Between the Parties Effective from
October 4, 1987 to September 30, 1990
* * *
* * *
(b) An employee's continuous service shall be broken for any of the reasons
* * *
(2) Is discharged for just cause
Pertinent Provisions of the Supplemental Agreement Between the Parties
Effective from December 6, 1987 to November 19, 1989
* * *
ARTICLE VII GENERAL PROVISIONS
* * *
DISCHARGE HEARING DISCIPLINARY MEMOS
a. Regular employees who may be suspended by the Company for incompetence,
violation of rules, or other just cause will be entitled to have a "hearing"
with the Union Labor Relations Committee present, if they desire, regarding the
facts of the situation prior to the Company reaching a final decision with
respect to possible discharge or other disciplinary action.
b. Under Group I of the Plant Rules established by the Company, a final
warning will be removed from an employee's personal file after a period of
seven (7) years if the employee has maintained a clear record since receiving
the warning, and will not be used in disciplinary action against the employee
after that time.
Arbitration Award of Jack Clarke in Kellogg CompanyPage 2
In this Background, undisputed facts are summarized. Where evidence relating
to the existence or non-existence of a particular fact conflicts, the evidence
The Company operates a ready-to-eat cereal manufacturing plant in Memphis,
Tennessee which it operates 24 hours per day on a 3-shift per day basis. The
Company employs approximately 700 employees at its Memphis plant. Certain of
those employees including the Grievant are covered by the 1987 Master Agreement
and 1987 Supplemental Agreement and are represented by the Union.
The Grievant had worked for the Company for approximately 2 ½ years when he
was discharged in November 1988. The Grievant had had a very good record with
the Company prior to his discharge.
At some point in time Memphis Plant officials including William L.
Taylor, Personnel & Organizational Development Manager, became concerned about
drug use and product contamination in the plant. Taylor and other officials
conferred with William R. Duggan, Director, Corporate Safety & Security. Duggan
thereafter arranged for Professional Law Enforcement (PLE) to place an
undercover agent in the Memphis Plant. An undercover investigation was
conducted for 3 months ending in December 1987, but because a number of
employees were laid off, the undercover agent actually worked in the plant for
only 2 weeks during that time. That agent did not uncover any evidence of drug
use or product contamination.
Following further discussions among Duggan and Memphis Plant officials it was
decided to place another
PLE agent into the plant.
PLE assigned Gary M.
Laipple. After conferring with local management Laipple, working as a newly
hired employee, began an undercover investigation at the plant of April 8,
1988. [FN2] Although the investigation continued until approximately October
29, Laipple was laid off as a Company employee sometime before then as a result
of seasonal fluctuations. During the investigation Laipple made periodic
reports to his supervisons at
PLE. Those reports were furnished to some Company
officials including Taylor.
While working at the plant Laipple retained the wages paid him by the Company,
then $15.42 per hour gross. While laid off from the plant
PLE paid Laipple
$11.00 per hour.
PLE also paid Laipple a bonus of $500.00 per month during the
term of the investigation. Laipple testified that he did not receive any bonus
Arbitration Award of Jack Clarke in Kellogg CompanyPage 3
or incentive compensation depending upon the results of the investigation.
Duggan testified that the Company paid
LPE $1250.00 per week for the duration
of the investigation plus $11.00 per hour when Laipple was not able to work at
Laipple testified that he determined that three employees used illegal drugs
on Company premises: S, P, and the Grievant. S quit with approximately
$9,000.00 of severance pay for a discontinued job on November 14. [FN3] The
Grievant and P were discharged on November 22. Laipple's reports stated that he
had observed the Grievant using marijuana on Company premises on August 18 and
19. Duggan and Taylor each testified that the Company opted to take no action
against the Grievant when or shortly after Laipple observed him using drugs
because the Company thought "things were going to happen" and didn't want to
disclose the existence of an undercover operation. Duggan further testified
that he consciously accepted the possibility that the delay might result in a
subsequent proof problem.
The Grievant and P were separately interviewed by Duggan and Taylor in the
presence of Kenny Summers, Union Steward, on November 22. During his interview
P admitted having brought marijuana into the plant and having used it
approximately two or three times per week for a number of years. The Grievant's
interview followed shortly thereafter. After being advised that he had been
identified by an undercover agent as having brought a controlled substance into
the plant the Grievant denied that and denied having ever used drugs in his
Appropriate Company officials decided to conduct a disciplinary hearing
in accordance with section 706 of the 1987 Supplemental Agreement later on
November 22, and that meeting was held. The meeting was attended by the
Grievant and several Company officials including Duggan and Taylor and several
Union officials including Larry W. Warren, then Business Agent and President,
AFGM Local Union #252. The Grievant again denied having brought drugs into the
plant or having ever used drugs. And Warren asked for all the evidence the
Company had against the Grievant. The Company did not then provide the Union
with any documentary evidence. (The only documentary evidence provided the
Union by the Company prior to the date of the arbitration hearing were
"Statement of Witness" report forms by Laipple regarding incidents on August 18
and 19.) After a caucus Company managers decided to terminate the Grievant, and
the Union and the Grievant were so advised.
During at least one of the November 22 meetings the Grievant or the Union
offered that the Grievant would take a drug test and polygraph. The Company
refused both offers.
Arbitration Award of Jack Clarke in Kellogg CompanyPage 4
Pertinent portions of Laipple's direct testimony not referred to elsewhere may
be summarized as follows.
Laipple summarized his training and experience in law enforcement and his
subsequent training with
Laipple met with Taylor, Artie Byrd, Plant Manager, and Michele Hitt, Plant
Superintendent, during the first week of March before he actually began working
in the plant. The Company's representatives explained that the purpose of the
investigation was for narcotics, safety violations, and product tampering. None
of the Company officials then mentioned any employees whom Laipple was supposed
to watch closely or investigate.
Laipple met with Taylor and perhaps other Company officials in May. During
that meeting Taylor stated that the Company suspected that S might have been
involved with product tampering and that Laipple should get close to and
observe S. Neither the Grievant's nor P's name was mentioned then or at any
To break the ice regarding drug matters Laipple initially did "very little
other than just join in the conversations on breaks." If someone mentioned
drugs Laipple would state that he had used them in the past and would be
willing to do so again. In addition Laipple had a gold earring in the shape of
a marijuana leaf which he would show people to determine their response. He
sometimes wore that earring to and from the plant but did not wear it in the
Laipple first observed use or possession of drugs in the plant on July 30 at
approximately 6:50 a.m. when S gave Laipple a cigarette package with a
marijuana joint in it. Laipple knew it was marijuana because it looked and
smelled like marijuana. Laipple had previously used marijuana.
At approximately 10:00 p.m. on July 30 Laipple told P that Laipple had
received a "free sample" that morning and that it was "pretty good stuff". P
replied that he was going to "burn one" later on break and that Laipple could
join him. When P's relief arrived P and Laipple stepped outside the exit at Bay
9A. P produced a joint and lit it. P smoked it while Laipple simulated smoking
Laipple didn't recall his first contact with the Grievant. Laipple did
recall having shown his earring to the Grievant sometime prior to July 31. On
that date at approximately 11:30 the Grievant came to Laipple and talked about
Arbitration Award of Jack Clarke in Kellogg CompanyPage 5
the Grievant's Army service in Germany and the hash one could get while there.
On August 17 the Grievant smoked marijuana in a pipe off premises and outside
of working hours while Laipple simulated smoking.
On or about August 18 the Grievant approached Laipple and said that when it
was dark the Grievant was going to "smoke one" and that Laipple was welcome to
join him. At approximately 8:00 p.m. that evening the Grievant and Laipple went
outside the door to Bay 9A. The Grievant removed the pipe and a plastic bag
from his pocket and loaded the pipe. The material smelled and looked like
marijuana. The Grievant smoke it, and Laipple simulated smoking it.
Although Laipple had reason to believe that the Grievant was under the
influence of marijuana when he returned to work, Laipple didn't warn anybody
about the Grievant's condition because there was no way he could do so without
jeopardizing the investigation.
On August 19 at approximately 3:20 p.m. the Grievant came to Laipple and said
that he was going to " 'burn a bowl' " later and that Laipple was welcome to
join him. When it became dark the Grievant and Laipple again went to the door
near Bay 9A and stepped outside. The Grievant again loaded his pipe with a
material that looked and smelled like marijuana and then smoked the pipe while
Laipple simulated doing so.
Laipple did not have a tape recorder on August 18 or 19. He obtained one later
and attempted to tape record some conversations with the Grievant in the plant.
Those recordings failed either because the recorder didn't work or the recorder
or microphones were incapable of distinguishing the conversation from
Sometime after August Laipple called the Grievant at the latter's home. The
Grievant stated that he had "gotten him something to do on". Liapple asked if
the Grievant had an extra and indicated that he would be willing to buy from
the Grievant if the Grievant did. The Grievant invited Laipple to share what
the Grievant had. Laipple then went to the Grievant's home where the Grievant
smoked marijuana in Laipple's presence. Neither the Grievant nor Laipple was
then in an on-duty status as far as the Company was concerned.
Asked what steps he had taken during the investigation "to ensure that
innocent employees weren't being identified as targets or possible targets"
Liapple replied that he "would usually only approach a person after a
conversation along the lines of 'Do you get high?' " and that if it came up
then, he might ask. He further testified that if someone said that he had tried
it before but didn't know, Laipple would back off.
Arbitration Award of Jack Clarke in Kellogg CompanyPage 6
Laipple didn't bring any drugs into the plant and didn't give drugs, marijuana
or any controlled substance to any employees at Kellogg.
On cross-examination Laipple testified that to an extent he was pretty
much on his own as far as using his training and resources to bring someone
out; that Laipple allowed his beard and hear to go longer and his appearance to
become a little bit disheveled during the investigation; that Laipple would
approach a person with his marijuana leaf earring and appearance and ask if
that person got high; that the Grievant used marijuana on Company property in
Laipple's presence on only two occasions; that on other occasions the Grievant
reported that he didn't have any marijuana; that the Grievant never offered to
sell marijuana to Laipple; that Laipple concluded that the Grievant was a
marijuana user; that when Laipple telephoned the Grievant at the Grievant's
home Laipple said the reason he was calling was to get the Grievant to perform
magic tricks for Laipple's daughter's birthday party; that the Grievant has a
reputation for putting on magic shows for children; that Laipple did not keep a
joint behind his ear; that
PLE had given $100.00 "as buy money" for narcotics
and that Laipple was also allowed to and did use that money to purchase beer.
In response to a question from the Arbitrator Laipple testified that he had
returned to his home in Ohio by somewhere around the 3rd of November.
Pertinent portions of Taylor's direct testimony not referred to elsewhere may
be summarized as follows.
The Grievant was discharged for violation of Plant Rule 2, a Group I Rule.
Violations of Group I Rules are very serious. The normal penalty for such
violations is immediate discharge.
In 1986 the Company adopted a drug policy and promulgated it to all employees.
That policy contains no provision regarding random or for cause drug testing.
No drug test was administered the Grievant because as of that date the Company
had not tested current employees and because the Grievant's discharge was based
on his having used drugs in August.
Although Taylor and other Company officials were aware in the middle of August
that the Grievant had used drugs in the plant, no action was then taken against
the Grievant because the Company did not then want to terminate the
investigation. The Company felt "that the timing was very critical and that we
needed to wait and see if the problem was in fact bigger than the information"
they had then received.
The Grievant's length of service was less than the average for employees at
the Memphis Plant.
Arbitration Award of Jack Clarke in Kellogg CompanyPage 7
The Grievant had been a "very good" employee up until the incident which led
to his discharge. Taylor had had dealings with the Grievant before then, and
their relations "had been very good."
The Company had been told that S "was in trouble with the law" and might be
involved in something more serious than cocaine. One of the factors which
caused the Company to delay action against the Grievant and P was waiting to
determine precisely what was going on with S.
Taylor testified on cross-examination that Laipple last worked in the plant on
October 29; that there was "no particular reason" why the Company waited from
October 29 to November 22 to take disciplinary action against the Grievant and
P; that the Company waited to discipline the Grievant until it ended the
operation and that it didn't end the operation until November 22; that Taylor's
approach would be to automatically terminate any employee who violated a Group
I Rule; that a named employee who was caught with a concealed weapon on plant
property in violation of a Group I Rule was not terminated; that in his reports
Laipple noted several instances of employees sleeping on the job but that the
Company took no action against employees whom Laipple reported as having
engaged in gambling; that the Company's Employee Assistance Program (EAP) was
not offered to the Grievant or P because that "would have been an after-the-
fact thing"; that the decision to discharge the Grievant was not based on the
Grievant's work record; and that Taylor didn't interview the Grievant's
supervisors prior to deciding to discharge him.
Taylor testified on re-direct examination that employees other than S
were offered severance pay but didn't take it; that the Company has a
contractual obligation to make severance pay available to employees in the
event of a job discontinuance and that there was no discussion about trying to
get around that obligation regarding S; that the employee who was found to have
a concealed weapon had not entered the plant before the weapon was discovered
and removed from him and stated he had the gun for protection; that the Company
had advised its supervisors that using drugs in the workplace is a serious
matter and that anyone found doing so should be immediately suspended pending
discharge; that an employee's admitting that he or she has a problem is a
prerequisite to admission to the Company's
EAP but that the Grievant denied
having ever used marijuana; and that the only gambling reported by Laipple was
liar's poker and similar games.
In response to a question from the Arbitrator Taylor testified that the
Grievant's and P's discharges were the first for on-premises drug use.
The Company's Plant Rules in effect during 1988 provide in part:
Arbitration Award of Jack Clarke in Kellogg CompanyPage 8
* * *
2. Drinking or in possession of intoxicants or illegal drugs while on duty.
The Company's unilaterally adopted Policy on Drugs and Alcohol effective
December 1, 1986 provides in part:
1. Use, sale, possession and delivery
Any employee who (1) uses, sells, delivers or possesses illegal drugs on
Company premises, property or while on Company business or (2) uses or
possesses alcohol on Company premises is subject to discharge for the first
offense. All contraband will be confiscated and turned over to the appropriate
law enforcement authorities.
Ronald D. Nelson, a bargaining unit employee, testified that on one occasion
during his and Laipple's probationary periods they were in the Packing Room;
that Nelson engaged "in a conversation of just meeting the guy"; that Laipple
said that he was ready to go home "to . . . have a beer and sit on the porch
and light up a joint"; and that Nelson replied that the beer sounded good but
that he wasn't interested in anything else and turned away.
Pertinent portions of the Grievant's direct testimony not referred to
elsewhere may be summarized as follows.
During the first November 22 meeting Summers asked for the evidence the
Company had against the Grievant. One or another of the Company's
representatives stated that they didn't have any at that time.
During the disciplinary hearing Warren asked for anything the Company had
pertaining to the Grievant's case and said that the Union wanted it then. The
Company's representatives replied that they didn't have any at that time. And
in fact the Union didn't receive a copy of any exhibits until the third step of
the grievance procedure. The Union's representatives also objected to the
Company's accepting the word of a non-employee agent over an employee's.
The Grievant never walked outside of Bay 9A with Laipple and smoked a
joint or smoked pot in any fashion. The only time the Grievant ever smoked pot
with Laipple was at the Grievant's home. The Grievant didn't remember that date
but it was while the Grievant and Laipple were both on layoff.
On different occasions in the plant Laipple confronted the Grievant about
marijuana. Laipple would ask where Laipple could get it or did the Grievant
have any. The Grievant replied that he didn't have any and didn't know where
Laipple could get it. But when Laipple called about the Grievant's performing a
Arbitration Award of Jack Clarke in Kellogg CompanyPage 9
magic show, the Grievant had a joint which a friend had given him.
Asked to provide examples of comments Laipple had made to the Grievant in the
plant, the Grievant replied that Laipple had asked if the Grievant "got high"
and that if the Grievant "wanted to go Set a buzz". On one occasion the
Grievant and Laipple met as arranged at a local convenience store for a beer.
Laipple was wearing his marijuana earring and had a joint behind his ear.
Laipple then asked if the Grievant wanted to smoke a joint there. The Grievant
responded negatively and said that he was going to finish his beer and go home.
The Grievant is married and has a 2-year-old daughter whom he and his wife
adopted. Prior to adopting the child an agency of the State of Tennessee
conducted an investigation of the Grievant. Part of the investigation was a
physical examination which included a drug screen. The investigation also
included random and scheduled visits of the home of the Grievant and his wife.
The Grievant and his wife were approved to adopt the child.
The Grievant had used marijuana in the military service while stationed in
Germany between 1973 and 1975. He was not a drug user during his term of
employment with the Company or after he was married.
The Grievant has accepted all call-outs. He has never been unable to accept a
call-out because of intoxication or inebriation.
The Grievant submitted a urine sample for a drug screen subsequent to having
On cross-examination the Grievant testified that during the disciplinary
hearing on November 22 he stated that the investigator came to the Grievant's
house and had beer but that they didn't smoke pot; that he didn't know Laipple
was the undercover agent until after November 22; that on November 22 the
Grievant did know that Laipple was the undercover agent; that the Grievant had
used marijuana before he went to work for the Company; that since beginning to
work for the Company the Grievant had not used marijuana on Company premises
and had used it off premises on only the one occasion when Laipple came to the
Grievant's home; that when Laipple called the Grievant's home the Grievant
said, "'I've got a little something I can do on' " meaning that he had a joint;
that on that occasion the Grievant and not Laipple brought up the issue of
smoking marijuana; that the Grievant had told Laipple about smoking hash while
stationed in Germany; and that it was hash and not marijuana.
J, the Grievant's father-in-law and a Lieutenant in the City of Memphis
Fire Department, and R, a friend of the Grievant as a result of having been a
friend of the Grievant's in-laws for many years, testified for the Union on
behalf of the Grievant. P testified that the Grievant was a good father and
husband and that P never observed any indication that the Grievant used or
Arbitration Award of Jack Clarke in Kellogg CompanyPage 10
smoked marijuana. R testified that she had spent time with the Grievant and his
wife approximately once every 2 or 3 weeks and that she never observed any
indication that the Grievant used drugs including marijuana.
Through Gerald Overton, a representative of the Memphis AFL-CIO Labor Council,
the Union introduced a report of a "Drug Profile" based on analysis of a urine
sample provided by the Grievant on December 2, 1988. That report indicated that
the sample was negative for several substances including cannabinoids and
positive for opiates by
EMIT tests. The
EMIT threshold shown for cannabinoids
was 100 NG/ML. The report further stated that the opiate was confirmed as
codeine and that the assay was "useful only as an indicator of recent use of
cannabinoids and not as a measure of intoxication." Under "Comments" the report
stated, "Confirmed by GC/MS."
Overton testified that in his opinion if the Grievant had been a casual user
of marijuana and if the Grievant had used marijuana no more recently than 7
days prior to providing the urine sample, the sample would have been negative
for cannabinoids but that if the Grievant had been a heavy user of marijuana
and used marijuana no more recently than 7 days prior to providing a urine
sample, the sample probably would have resulted in a positive test.
Positions of the Parties
The Company contends that discharge of the Grievant was for just
The Company contends that the evidence "overwhelmingly establishes that the
Grievant possessed and used marijuana on the Company premises"; that improper
conduct can be established by direct or circumstantial evidence or booth [FN4];
that Laipple's direct testimony "is inherently more credible than the wholesale
and inconsistent denials" of the Grievant [FN5]; and that the circumstantial
evidence "leads to an unmistakable inference" that the Grievant used marijuana
The Company contends that Laipple's testimony was credible whereas the
Grievant's lacks credibility; that the credited testimony of an investigator is
sufficient to sustain the discharge of an employee [FN6]; and that in
situations similar to that involved in the present case even the completely
uncorroborated testimony of an undercover agent has been found to be sufficient
to sustain a discharge. [FN7]
The Company contends that the Grievant's denial of his use of marijuana in the
Arbitration Award of Jack Clarke in Kellogg CompanyPage 11
plant is entitled to little or no weight. [FN8]
The Company contends that "[t]he Grievant's after-the-fact drug test does
nothing to bolster his credibility" in that the drug test was not taken until
December 2 whereas the events which led to the Grievant's discharge took place
on August 18 and 19 and that all the test could show was that the Grievant was
not a regular user of marijuana within 2 weeks prior to its administration.
The Company contends that it has a right to maintain a drug free work
The Company contends that the Grievant was not qualified for participation in
EAP in that the Grievant did not come forward and admit a substance abuse
problem before he was apprehended for using drugs.
The Company contends that the Grievant "suffered no harm because the Company
decided to discharge him in November for offenses he committed in August"; that
if the Company had taken immediate action against the Grievant the existence of
an undercover operation would have been revealed; that the arrest and
resignation of S further delayed initiation of discipline because the Company
wished to evaluate whether the criminal proceedings against S might disclose
further leads for the Company's investigation; and that the Grievant was
accorded "essential due process". [FN9]
The Company contends that the Grievant's use of marijuana on plant premises
constituted a clear violation of Group I, section 2 of the Plant Rules and
warranted discharge. [FN10]
The Company requests the Arbitrator deny the grievance.
The Union contends that discharge of the Grievant was not for just
The Union contends that a higher degree of proof is required where an
employee's alleged misconduct is of a kind that can be punished by criminal
law [FN11] and that regardless of whether one characterizes that burden as
"beyond a reasonable doubt" or "clear and convincing evidence", the Company has
not satisfied that burden in the present case.
The Union contends that the Company's entire case is based on accepting the
testimony "of a professional drug undercover agent of whom the employer has
very little information about his credibility against the testimony . . . of an
employee with a good work record of whom there was no other evidence that he
Arbitration Award of Jack Clarke in Kellogg CompanyPage 12
was using drugs in the plant"; that the Company offered no testimony to
corroborate Laipple's; that an informant's testimony is usually insufficient to
support discharge or discipline [FN12]; and that the Grievant's offer to submit
to a polygraph test and the Company's refusal of that offer bolsters the
Grievant's credibility. [FN13]
The Union contends that arbitrators have relied solely on informant evidence
to uphold discipline only where an employee's testimony was inconsistent and
that that is not the situation in the present case. [FN14]
The Union contends that neither the Company's Plant Rule nor its drug policy
mandate automatic discharge for a first offense; that the Company's failure to
inquire into the Grievant's "status as an employee and what his superiors felt
was the likelihood of his being involved in drug abuse" was "a serious breach
of routine procedures" and indicated "a lack of fairness and due process toward
the Union and toward the employee."
The Union contends that the employer's failure to bring criminal charges
against the Grievant indicates that there is insufficient evidence against the
Grievant to warrant imposing "the extreme industrial penalty" of discharge.
The Union contends that the Company delayed acting on the information
it had obtained against the Grievant from mid-August until November 22; that
the delay resulted in a lack of procedural due process due the Grievant and the
Union in defending against the allegations of an undercover agent "who has no
tapes, pictures or other real evidence of employee drug use at the plant".
The Union contends that "Laipple's admitted enticement and entrapment of
employees into drug use situations" is another element of unfairness. [FN15]
The Union contends that the Grievant's admission of off-premises use is not
enough to corroborate in-plant use and that the Company's confronting an
employee with smoking marijuana in a plant in conjunction with a question
regarding his having ever smoked marijuana "is likely to produce a negative
response since smoking marijuana is a misdemeanor in the State of Tennessee."
The Union contends that the nature of the relationship between Laipple and the
Company should cause Laipple's credibility to be questioned and impugned; that
the identity of Laipple's reports indicates that those reports were
manufactured; and that Laipple's testimony cannot he weighed heavily enough
against that of the Grievant to establish the existence of clear and convincing
proof or proof beyond a reasonable doubt.
The Union contends that the Company made the Grievant its scapegoat to justify
an excessive expenditure on a drug investigation which failed to get its
Arbitration Award of Jack Clarke in Kellogg CompanyPage 13
target, that is, S.
The Union contends that discharge of the Grievant constituted disparate
treatment. Specifically the Union contends that the evidence in the present
case establishes that the Company has not discharged employees for other Group
I offenses, that the Company did not discipline other employees whom Laipple
discovered sleeping or gambling on the Company's premises, and that S was
allowed to resign with $9,000.00 severance pay.
The Union requests the Arbitrator grant the grievance and direct the Company
to reinstate the Grievant to his former job without loss of seniority and to
make the grievant whole for all lost wages and benefits.
The stipulated issues to be resolved in the present arbitration are whether
discharge of the Grievant was for just cause and, if not, what shall the remedy
be. The Arbitrator finds that discharge of the Grievant was for just cause and
therefore denies the grievance. The Arbitrator's reasoning follows.
It is well established in labor arbitration that where, as in the present
case, an employer's right to discipline or discharge an employee is limited to
situations wherein such action is for just cause, the employer has the burden
of proving that discipline or discharge of an employee was for just cause.
Therefore the Company had the burden in the present case of proving that
discharge of the Grievant was for just cause.
Just cause consists of many elements. Four of those elements are proof that
the employee engaged in the misconduct for which he or she was disciplined, the
absence of disparate treatment, proof that the discipline was meted out fairly,
and the existence of a rational relationship between the misconduct and the
Like the situation in U.S. Borax & Chemical Corp., supra footnote 12,
the key issues in this case are of credibility. Having carefully reviewed and
weighed the relevant evidence in the present case and being aware of the
seriousness of a discharge for use of an illegal drug the Arbitrator is
convinced and finds that the Grievant's testimony lacks credibility and that
Laipple's testimony is credible. The Grievant's statements regarding whether he
and Laipple smoked marijuana at the Grievant's home changed dramatically from
one time to another. It is undisputed that during both November 22 meetings the
Grievant specifically denied having smoked marijuana with Laipple at the
Grievant's home. And the Grievant continued to deny off-premises use throughout
Arbitration Award of Jack Clarke in Kellogg CompanyPage 14
the grievance process. But the Grievant later admitted having smoked marijuana
with the undercover agent in the Grievant's home. A person's making
inconsistent statements makes it difficult for a fact finder to believe other
statements by that person. The Union's argument that one would expect a person
in a situation like that in which the Grievant found himself on November 22 to
deny having used marijuana is unpersuasive. While it may be true that the
Company could not have disciplined or discharged the Grievant for off-premises
use of marijuana, the Grievant's denials of off-premises use were sufficiently
closely related to the Company's inquiry into on-premises use as to be entitled
to weight. Furthermore, nothing in the Grievant's testimony suggests that he
made his denials regarding off-premises use with any less disregard for truth
than he made his denials regarding on-premises use. The Grievant's testimony at
the arbitration hearing was internally inconsistent. At one point in time
during his cross-examination the Grievant testified that as of November 22 he
did not know who the undercover agent was. Such a remark borders on a reckless
disregard for truth. Knowing that he had smoked marijuana with an undercover
agent at home, the Grievant's stating that he did not know who the undercover
agent was raises two possibilities: that that statement was false or that the
Grievant's statement that he had only used marijuana off-premises one time
since having been hired by the Company was false. Later in his cross-
examination, after having been shown a copy of the minutes of the disciplinary
hearing, the Grievant admitted having known on November 22 who the undercover
agent was. Even the Grievant's testimony regarding drug use many years ago was
inconsistent. During his direct examination the Grievant testified that
marijuana was the drug he had used while in military service. But on cross-
examination he eventually admitted to having smoked "hash" while in the Army.
Contrary to Arbitrator Otis King's comment in Georgia Pacific cited by the
Union at footnote 13 above, the undersigned Arbitrator does not find the
Grievant's offer to take a polygraph test to be worthy of any weight. It is
sufficient explanation that this Arbitrator has frequently excluded the results
of polygraph tests from evidence. In short, the Arbitrator finds the Grievant's
testimony lacking in credibility.
Laipple's testimony, on the other hand, was straightforward, detailed,
and entirely consistent with his prior reports. Furthermore, despite expert
cross-examination Laipple's testimony remained internally consistent from
beginning to end. One cannot reasonably deny that
PLE has an interest in its
investigations producing "results", that is, evidence of wrongdoing. If none of
PLE's investigations produced evidence of wrongdoing, it is unlikely that
organizations such as the Company would contract with it for such
investigations. People in organizations who hire such investigators do so
because they believe wrongdoing exists, and they expect investigators to prove
the correctness of their beliefs. Nonetheless the Arbitrator is persuaded that
Arbitration Award of Jack Clarke in Kellogg CompanyPage 15
Laipple saw what he reported and testified about and was not motivated to "make
a case" against the Grievant or any other employee where no such case existed.
The Arbitrator finds Laipple's testimony to be credible. The Arbitrator notes
that the present case is not one of simply accepting the word of an undercover
agent over that of an employee with a good record. It was the Grievant's
disrespect for truth which caused the Arbitrator to find the Grievant's
testimony lacking in credibility and therefore entitled to no weight. In other
words, the Grievant himself caused the Arbitrator to find Laipple's testimony
Having found Laipple's testimony to be credible and the Grievant's testimony
incredible, the Arbitrator need not discuss what standard of proof the Company
was required to meet. Having found the Grievant's testimony incredible, the
Arbitrator is convinced that the Grievant smoked marijuana on Company premises
on August 18 and 19 as Laipple testified the Grievant did. The Arbitrator
therefore finds that the Company satisfied its burden of proving that the
Grievant engaged in the misconduct for which he was discharged.
The decision reached here is not inconsistent with the cases cited by the
Union at footnote 12 above. Arbitrator Robert C. Schubert in Pacific Bell and
Arbitrator Fredric N. Richman in U.S. Borax & Chemical Corp. doubted the
testimonies of undercover agents. As indicated above, the undersigned
Arbitrator is not so persuaded regarding Laipple's testimony. Although
Arbitrator John Canestraight in A.R.A. Manufacturing Co. found an undercover
agent's testimony to be credible, he also found the discharged employee's
testimony to be credible. Arbitrator Canestraight therefore granted the
grievance on the basis of burden or quantum proof. As indicated above, the
undersigned Arbitrator found the Grievant's testimony to be lacking in
credibility. Associated Grocers of Colorado, Inc. was not decided on the basis
of credibility of testimony but rather on the basis of what inferences should
be drawn from a tape recorded conversation between a discharged employee and an
undercover agent. That issue is not involved in the present case.
That the Company's delay in disciplining the Grievant for some time after
August 19 effectively deprived the Grievant and Union of defending the Grievant
by means of a drug screen cannot be seriously disputed. The varying times
depending, among other things upon how "regular" a person is a user of
marijuana, necessary to eliminate evidence of marijuana use from the human body
are reasonably well known. As the Company stated in its post hearing brief
regarding the drug screen performed on the Grievant's December 2 urine sample,
it is highly unlikely that any evidence of marijuana use would remain in the
body of a casual user 3 months after his or her last use of that drug. But what
constitutes a fair procedure must be determined in light of all the
circumstances existing at the time. The Arbitrator is persuaded that in the
present case the Company's concern regarding the continued viability of its
Arbitration Award of Jack Clarke in Kellogg CompanyPage 16
undercover operation was sufficient to justify its not disciplining the
Grievant at least until late October when it appeared that Laipple would not be
subject to being recalled as a Company employee. The Company has not only the
right but also the obligation to provide all of its employees with as safe a
working environment as it can reasonably do so. A manufacturing plant in which
employees are ingesting or smoking mind or mood altering drugs during working
hours is unsafe.
The Arbitrator must reject the Union's argument that Laipple somehow
led the Grievant into misconduct which the Grievant would otherwise have not
engaged in. In the first place the Grievant denied having smoked marijuana on
August 18 and 19 and did not testify regarding Laipple's suggesting that they
should use that or any other drug on Company premises. Furthermore, the
Grievant eventually admitted that he -- not Laipple -- first suggested they
smoke marijuana on the one occasion the Grievant admitted to. Finally, the
Union's evidence is simply not sufficient to prove that Laipple's comments were
so strong as to lead another person into misconduct he or she wouldn't have
engaged in otherwise. In this regard, the Arbitrator notes that Laipple's
testimony--which the Arbitrator finds credible--was that the Grievant initiated
both the August 18 and 19 incidents.
That the Company treated the Grievant and S differently is undisputed. Why the
Company treated them differently was not adequately explained. S's contractual
right to severance pay does not explain the Company's decision to not discharge
him. One could argue with equal rationality that the Grievant had a contractual
right to continued employment, but that right did not prevent the Company from
discharging him. The undercover investigation was for all practical purposes
concluded on October 29, 1988. Nonetheless, the Company allowed S to quit with
severance pay more than 2 weeks later. But the Company's different treatment of
S and the Grievant does not constitute a basis for directing the Company to
reinstate the Grievant. Regardless of S's employment's having been terminated
voluntarily and with severance pay, the fact remains that his employment was
terminated. On the other hand, the evidence in the present case does not show
whether the Grievant would have been entitled to severance pay if he had
elected to quit. The Arbitrator therefore cannot reasonably direct severance
pay as a remedy.
The final issue to be addressed is whether there existed a reasonable
relationship between the Grievant's misconduct and the discipline imposed.
Because the Plant Rules and drug policy were adopted unilaterally and because
the Company's power to discharge employees is limited by just cause, it is
within the Arbitrator's power to find discharge to have been an excessive
punishment. But using marijuana on the premises of a manufacturing plant during
Arbitration Award of Jack Clarke in Kellogg CompanyPage 17
working hours is very serious misconduct. On the other hand, the Grievant has a
very good employment record. But that employment record is not of long
duration. Certainly the Grievant's 3 years of seniority does not qualify him as
a long term employee. Weighing the seriousness of the Grievant's misconduct in
light of all of the circumstances specifically including his good employment
record for not quite 3 years, the Arbitrator cannot conclude that that
discharge was so excessive a punishment as to be without just cause. In this
regard the Arbitrator notes that the Company's failure to ask the Grievant's
supervisors about the Grievant did not cause the Grievant's discharge to be
without just cause. Taylor's testimony makes clear that in deciding to
discharge the Grievant, the Company viewed him as having a good record.
For the above reasons the grievance must be denied.
Having heard or read and carefully reviewed the evidence and argumentative
materials in this case, and in light of the above Discussion, the grievance is
FN1 The 1987 Master Agreement was executed by the Company and by the American
Federation of Grain Millers, AFL-CIO, on behalf not only of its Local Union
#252 but also on behalf of four other of its Local Unions. None of those other
AFGM local unions was involved in the present arbitration, however.
FN2 Unless otherwise indicated all dates referred to hereinafter are in 1988.
FN3 Section 1.03 "Responsibilities of the Parties," subsection (d) of the 1987
Master Agreement provides for severance pay in certain situations.
FN4 Consolidated Coal Co., 87 LA(BNA) 729 (1986) (Hoh, Arb.); Hoover Universal,
Inc., 73 LA(BNA) 868 (1979) (Gibson, Arb.).
FN5 American Air Filter Co., Inc., 64 LA(BNA) 404 (1975) (Hilpert, Arb.); see
F. Elkouri and E. Elkouri, How Arbitration Works 319-22 (4th ed. 1985)
FN6 Consumer Plastics Corp., 88 LA(BNA) 208 (1987) (Garnholz, Arb.); Dietrich
Industries, 85 LA(BNA) 214 (1986) (Feldman, Arb.).
Arbitration Award of Jack Clarke in Kellogg CompanyPage 18
FN7 Georgia Pacific, 85 LA(BNA) 542 (1985) (King, Arb.); American Air Filter
Co., Inc., supra footnote 5.
FN8 Washington Hospital Center, 75 LA(BNA) 32 (1980) (Rothschild, Arb.); Huron
Forge & Machine Co., 75 LA(BNA) 83 (1980) (Roumell, Arb.); Bucyrus-Erie Co., 70
LA(BNA) 1017 (1978) (Gundermann, Arb.)
FN9 Georgia Pacific, supra footnote 7.
FN10 Consumer Plastics Corp., supra footnote 6; Georgia Pacific, supra footnote
7; Deitrich Industries, supra footnote 6.
FN11 Elkouri at 662.
FN12 Pacific Bell, 87 LA(BNA) 313 (1986) (Schubert, Arb.); U.S. Borax &
Chemical Corp., 85-1
ARB Para.8090 (1984) (Richman, Arb.); A.R.A. Manufacturing
Co., 83 LA(BNA) 580 (1984) (Canestraight, Arb.); Associated Grocers of
Colorado, Inc., 81 LA(BNA) 974 (1983) (Smith, Arb.).
FN13 Georgia Pacific, supra footnote 7.
FN14 ITT Continental Baking Co., 80 LA(BNA) 377 (1983) (Kreimer, Arb.).
FN15 Elkouri at 673-74.
FN16 Pacific Bell, supra footnote 12.
93 LA (BNA) 884, 93 Lab. Arb. (BNA) 884
Arbitration Award of Jack Clarke in Kellogg CompanyPage 19