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One toke over the line

A federal judge cited that ‘70s anthem last week when he decided a mine worker who hadn’t toked up since high school should get a chance to return to work.

Employer Dickenson-Russell Coal Company had a strict “zero tolerance” drug policy that called for random screening and disciplinary sanctions ranging up to termination. After the policy went into effect in 2006, three employees at the Cherokee Mine tested positive for drugs and each was terminated. The union did not arbitrate any of those terminations.

Robert Gilbert worked in the coal industry for 32 years, and his work for D-R involved electrical and mechanical repair and was “safety sensitive.”

On Sept. 23, 2010, Gilbert was playing poker with two buddies when one of them pulled out a joint.

“Although he had not smoked marijuana since high school, Gilbert ‘toked it’ twice,” Big Stone Gap U.S. District Judge James P. Jones wrote in Dickenson-Russell Coal Co. v. Int’l Union, UMW. A footnote defined “toke,” with reference to Merriam-Webster and the song by Michael Brewer and Tom Shipley.

As luck would have it, Gilbert faced a random drug screen the next day, his fourth test that year. He tested positive and the company suspended him with intent to discharge.

When the union took the matter to arbitration, the arbitrator said Gilbert’s lengthy clean work record made him the “poster boy” for mitigating circumstances that supported a lesser penalty. The arbitrator directed that Gilbert be reinstated without his six months of back pay. The coal company refused to reinstate Gilbert and the case went to court.

Jones upheld the award for Gilbert, saying the company drug policy did not require termination as the only possible punishment and reinstatement did not violate public policy.
By Deborah Elkins

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