By Kate Acheson
An arbitrator reduced a 24-year veteran firefighter’s termination for use, despite a previous last chance agreement arising from previous cocaine use in City of Cleveland, 130 LA 1077 (Cohen 2012). Arbitrator Hyman Cohen cited the City’s improper application of the last chance agreement and mitigating factors concerning the recent marijuana use to justify his reinstatement order.
In February of 2011, the firefighter tested positive for marijuana. The City, in its termination letter, referenced a last chance agreement the firefighter had been issued after testing positive for cocaine in 2004. The letter reasoned that, because the 2004 drug use had resulted in a last chance agreement and because the firefighter was fully warned against the use of drugs when he chose to use marijuana, the firefighter could be terminated for just cause. The union challenged the City’s just cause, claiming the last chance agreement, which had expired before the 2011 drug test, could not be considered in the termination decision.
The arbitrator agreed with the union, dismissing the city’s reasons for just cause termination on two grounds. First, the arbitrator found the City improperly relied on the last chance agreement. The agreement had not only expired, but also included a provision stating it would not be used as a point of reference for future actions.
Second, the city unreasonably relied on termination as the only available discipline when their policy, as of March 1, 2008, was to choose termination as the “preferred” option for those who test positive for use of illegal drugs. Because the policy lists termination as the “preferred” option, other options, the Arbitrator reasoned, are implicitly available and should be utilized when termination is not clearly warranted. Arbitrator Cohen found the discharge for marijuana use was excessive in light of multiple mitigating factors. Prominently, Cohen cited the lengthy, 24-year service record and his subsequent successful participation in rehabilitation (confirmed by drug tests), and that the marijuana relapse had been triggered by a significant family event. The reinstatement was not complete and unconditional. Cohen ruled the reinstatement would be without back pay, subject to an agreement to go to rehabilitation, refrain from future drug use, and submit to random drug tests (with the understanding that any positive results would be grounds for immediate termination).
