Business Law 414
Business Law 414
Drug testing
1. A decision should be rendered in favor of the union. The reasons raised by the union should be given merit when the union leaders stated that under the CBA, the employer is prohibited to intrude into the private lives of the employees. The drug policy has prohibited on-the-job impairment or abuse and the random testing can only be made inside the workplace, when the employees report to work and about to leave work. Here, the employee who was tested positive for drug abuse did not report to work when the random drug test was conducted.
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The decision should be made in favor of the employer based on the reason that since the employees are on an “on-call duty system”, the conduct of random testing is required on a 24/7 basis and such requirement was not previously objected by the union.
2. The decision of the employer to expand the drug program to include the prohibition of sale, possession, or use of illegal substances on the employee’s own time should be sustained. As part of the company policy on substance abuse prevention and treatment program, the employees should observe the policy in order for the employer to monitor the job-performance of the employees to avoid on-job accidents and highly sensitive responsibilities demanded by the job. Hence, any sale, possession, or use of illegal substances on the employee’s own time should be strictly prohibited and demands imposition of penalty.
3. As arbitrator, I will rule in favor of the union. It was clearly shown based from the facts of the case that the primary purpose of the employer in the termination of the employees is equivalent to union busting. It can be gleaned from the facts of the case that the laid-off were qualified to perform the duties and functions of the third party vendor (TPV). Hence, it was unnecessary to subcontract the services of the TPV that merely resulted to a union busting tactic because such move was not a business necessity. In addition, the employer cannot use the flimsy excuse that it suffered financial reverses to justify subcontract work from the TPVs.
4. The key provisions of the collective bargaining agreement (CBA) which justifies this decision shall include the duty of the employer to successfully place the affected employees with its operations despite the closure of the 5 warehouses and the reduction in the number of employees. Furthermore, the employer shall only be allowed to subcontract the services of TPVs in the event that such services rendered by the TPVs cannot be performed by the warehouse workers under the 24/7/364 delivery system. While it is true that the employees admitted that they did not provide the same 24/7/365 delivery system, the employees were however placed on an “on-call duty” system, so that they can perform the deliveries performed by the TPVs. In fact, the decision of the employer to consolidate and close down the warehouses has resulted in the absence of the actual facilities that made it impossible for the employees to perform their jobs.
5. The employer and/or the union could have avoided this conflict by resolving the issues amicably before resorting to full trial. Waites (2003) stated that is recommended that arbitration and negotiation process must first be applied to conflicting parties in order for them to initially consider the chance for a possible settlement, rather than go directly to trial. It will give the parties the opportunity to assess the whole situation. As arbitrator, the key in ending this dispute is to open the door for a possible amicable settlement between the conflicting parties. This conflict could have been avoided if the parties have clearly negotiated the issues concerning the subcontracting of TPVs and the qualifications of the employees to render the work of the TPVs should have been raised in the negotiating table prior to the finalization of the CBA. On the part of the arbitrator, such individual is expected to listen, question, negotiate and arrive at the best possible option that is acceptable to both parties (Waites, 2003).
References
Waites, R. (2003). Courtroom Psychology and Trial Advocacy. USA: ALM Publishing.
