Private Labor Arbitration Award, July 2012

On July 13, 2012, Partner Matt Wakefield received a favorable arbitration award on behalf of a large hotel in the San Diego area. The hotel had discharged a cook for failing a post-accident drug test. The union representing the employee argued that just cause for discharge did not exist because the hotel did not have the right to require a post-accident drug test in this case. The employee had not reported her injury until four months after the accident. The hotel argued that an employee should not be able to avoid a drug/alcohol test by delaying the reporting of an injury. Moreover, given that the employee failed the drug test which was administered during her regular shift, just cause existed for discharge. The arbitrator agreed with the hotel and denied the grievance. He found that the employee’s increase in pain four months later, which motivated her to request medical care, met the definition of an “accident” for purposes of post-accident testing under the collective bargaining agreement. Moreover, the arbitrator concluded the employee’s positive drug test result was just cause for discharge, regardless of when the employee may have ingested the drugs, given that the test was administered during the employee’s shift.