Prison guard escapes firing for off-duty pot use

November 18, 2016

Employment Law BookWhere the agency’s words didn’t match its deeds, an arbitrator reduced an employee’s termination for off-duty drug use to a less severe penalty.

A senior correctional officer with 14 years of discipline-free service was terminated after failing a drug test.

Such “egregious” behavior “destroyed the confidence of his superiors and his integrity and professionalism as a law enforcement officer,” the agency asserted.

(U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Complex, Beaumont, Texas and AFGE, Council of Prison Locals, Local 1010, 44 LAIS 60, 2015 WL 5093390).

The union protested that the agency failed to establish the test’s validity, verify the amount of marijuana in the grievant’s system and establish that he “failed” the test. Given the grievant’s honesty about his actions, the union said, coupled with his long discipline-free record, he should have received a written warning at most.

The arbitrator agreed: Termination was too severe.

He declined to consider the union’s challenge to the drug test’s validity because it was neither raised during the grievance’s processing nor “clearly articulated” at the arbitration hearing but was detailed for the first time in the union’s post-hearing brief.

(Westlaw users: Click here for the Labor Arbitration Information System.)

But the arbitrator found the agency’s assertion that the grievant’s conduct justified termination was belied by management’s failure to reassign or remove him from duty, pending completion of its investigation.

In fact, there was no indication the grievant’s work performance was anything other than “exceptional and outstanding,” or that his presence at the institution posed a risk to operations.

The arbitrator said any poor judgment “was exorcised by his better judgment under stress at work when he honestly admitted his drug use and accepted responsibility for it.”

He reduced termination to a 30-day suspension.