By Daniel Fisher, Forbes.com
Who says arbitration is stacked against the little guy? The Connecticut Supreme Court this week reversed a lower court and reinstated a state employee who’d been fired for smoking marijuana on the job, siding with his union and an arbitrator who said the punishment was too harsh — even though the employee had access to heavy vehicles and performed maintenance work on building roofs.
The decision in State of Connecticut v. Conn. Employees Union Independent says police found University of Connecticut Health Center worker Gregory Linhoff in a UConn van parked in a “secluded area” at 5:30 p.m., smoking from a glass pipe. He told police he was taking a short break from work and lit up the pipe to eliminate “smelly” pot residue. He was arrested and police found two bags with three-quarters of an ounce of marijuana in his pockets. Criminal charges were later dismissed, but UConn fired him, citing his access to dangerous vehicles, the unsupervised nature of his work maintaining heating and air conditioning equipment in high places, and, well, the fact that smoking pot is illegal and doing it on state time in a state-owned van is a firing offense.
The Service Employees International Union disagreed and took the case to arbitration. The arbitrator determined that firing was excessive and ordered a six-month suspension with random drug testing after he rejoined the state work force.
Connecticut appealed, saying allowing Linhoff to keep his job after getting caught smoking pot in a state-owned van on state property during work hours might send a bad message to other employees. The Connecticut Supreme Court disagreed.
In a decision by Chief Justice Chase T. Rogers, the court ruled that public policy considerations were outweighed by the fact that Linhoff’s employers — Connecticut taxpayers — had negotiated a contract with SEIU that sent such cases to arbitration and there had to be a very good reason for overturning the arbitrator’s decision. Smoking pot in a taxpayer-owned van while on the taxpayer’s dime wasn’t a good enough reason, wrote Rogers, a Stanford and Boston U. grad who joined the state’s high court in 2007.
“Public policy based, judicial second-guessing of arbitral awards reinstating employees is very uncommon and is reserved for extraordinary circumstances, even when drug or alcohol related violations are at issue,” Rogers wrote. “Our general deference to an experienced arbitrator’s determinations regarding just cause and the appropriate remedy is vital to pre- serve the effectiveness of an important and efficient forum for the resolution of employment disputes.
Pro-arbitration businesses may cheer this rigid adherence to a professional arbitrator’s decision, given the judiciary’s and government’s general hostility to arbitration clauses as running counter to public policy. But the judge’s reasoning is tough to follow.
The court’s job seemed simple, even in its own words: “First, the court determines whether an explicit, well-defined and dominant public policy can be identified. If so, the court then decides if the arbitrator’s award violated the public policy.”
So far, so good. Rogers cited a Connecticut appeals court, in a case involving the public-employee union AFSCME, that ruled the state ‘‘has a well-defined public policy against the use of marijuana.’’ She agreed:“We conclude that the statutory, regulatory and decisional law of Connecticut evinces an explicit and well-defined public policy against the recreational use of marijuana, particularly in the workplace.”
And yet…in another recent case involving the New England Health Care Employees Union, the court found ways to get around this seemingly clear doctrine. In that 2015 decision, the court held that before a firing decision can be upheld, judges must consider whether the behavior was illegal, whether it threatened public safety or trust, the “relative egregiousness” of the employee’s behavior and ‘whether the grievant is incorrigible.”
Let’s look at the factors. Illegal? Yup. But the court noted Connecticut’s drug-free workplace policy doesn’t require an employee to be fired for smoking dope in a state-owned van during a break. And the Second Circuit Court of Appeals, in a 1997 decision involving the Service Employees International Union, ordered the reinstatement of a Connecticut skilled-nursing employee who was arrested at the workplace for possession of pot with intent to distribute.
Compared to that, a few tokes on the taxpayer’s dime between work assignments is nothing. Then, citing a string of cases where getting high at work did result in a permanent firing, including an Exxon tanker helmsman, an airline pilot and a truck driver, the court said Linhoff’s transgression didn’t fall nearly to that level. (Certainly not to the depths plumbed in First National Supermarkets v. Retail, Wholesale & Chain Store Food Employees Local 338, for example, where a store manager showed up drunk, shouted profanities, couldn’t open the safe, “blacked out,” then drove a car on the sidewalk and displayed a gun to a coworker; or Big Three Industries, Inc. v. ILWU, Local 142, where employees got high and huffed nitrous oxide on company property.)
It is true Linhoff had access to heavy vehicles which he was required to maintain and might be found driving across campus — perhaps to a “secluded area” to smoke pot — and he might wander into research labs or the day care center unsupervised. But UConn “has not argued, nor did the arbitrator find, that the grievant’s ability to access the campus day care center during his evening work shift placed him near children or that his ability to access research laboratories created any danger to the public,” Rogers noted.