FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 23-

01497

TEAMSTERS LOCAL 20,

Union,

and

SPANGLER CANDY COMPANY,

Company.
____________________________________/

OPINION OF THE ARBITRATOR

April 4, 2023

After a Hearing Held February 20, 2023

In Holiday City, Ohio

For the Union: For the Company:

John R. Doll
Doll, Jansen & Ford
111 West First Street, Suite 1100
Dayton, OH 45402-1156
 Rebecca Shope
Shumaker, Loop & Kendrick, LLP
1000 Jackson Street
Toledo, OH 43604
I. BACKGROUND1

Spangler Candy Company (“Spangler” or “Company”) has been in business

since 1906. It has been at its present location in Bryan, Ohio since 1913. It

currently produces about 15,000,000 pieces of candy daily. Some of its products

are Dum Dums, Saf-T-Pops, Spangler Candy Canes, Spangler Circus Peanuts,

Necco Wafers, Sweethearts, Canada Mints, and Bit-O-Honey. Grievant is a

member of Local No. 20 of the International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers (“Teamsters” or “Union”). Relationships

between the parties are governed by a Collective Bargaining Agreement signed

May 4, 2021 (“CBA”). JX 1, Tab A. Grievant was employed by Spangler, working

third shift as an Equipment Technician at the rate of $29.57 per hour, which

equates to about $61,506 per year.

Spangler has work rules that state in pertinent part:

Employees who disregard work rules will subject themselves to

disciplinary action, up to and including discharge.

THE FOLLOWING BEHAVIOR IS UNACCEPTABLE. SUCH

BEHAVIOR WILL SUBJECT AN EMPLOYEE TO IMMEDIATE
SUSPENSION PENDING DISCHARGE:
1
The Company presented the Union and the arbitrator with tabbed binders containing the
Company Exhibits (CX). TR @ 11-12. For ease of reference, the arbitrator uses the tab reference
as well as the exhibit number; for example, the Collective Bargaining Agreement (CBA), which
was introduced as Joint Exhibit 1 (JX 1), is under Tab A in the Company binders.
2
 II. TOBACCO and NICOTINE PRODUCTS (including all forms of
nicotine products, alternatives and devices such as e-cigarettes):
Prohibited in buildings, grounds and parking lots.

III. SUBSTANCE ABUSE/DRUG FREE WORKPLACE: Employees

will cooperate to maintain a drug free workplace (refer to Substance Abuse
Policy).2

a. Consumption or possession of alcoholic beverages, illegal drugs, medical

marijuana or drug paraphernalia while on company property is
unacceptable.

b. A positive result on an alcohol test (at or above legal limit), or positive

result on a drug test (any level above laboratory cut off) is unacceptable.

[XIV]. THEFT: Theft of Company property, property of another employee

or attempted theft of any kind.

For the following Work Rules the company has Zero Tolerance for proven
violations and no last-chance agreements will be offered under any
circumstances.

II. TOBACCO and NICOTINE PRODUCTS: Prohibited in buildings,

grounds and parking lots.

[XIV]. THEFT: Theft of Company property, property of another employee

or attempted theft of any kind.

CX 8, Tab B, Spangler Candy Company Union Employee Handbook @ 34-

35; emphasis in original.

There are typographical errors in the work rules that require explanation.

The rules are designated by roman numerals. The enumeration is correct I through

XIII. However, the next three rules are misnumbered as VIV, VX, and VXI; the
2
As noted in the Union Brief @ 15, “the Company did not offer its substance abuse policy into
evidence at the hearing.” Given the nature of the charges against Grievant, this is a significant
omission. Footnote by arbitrator.
3
correct numeration should be XIV, XV, and XVI. The sentence containing the

Zero Tolerance phrase is unnumbered, and the second rule for which there is no

tolerance if violated is misnumbered as VX; the correct reference should be XIV.

The arbitrator references the corrected numbers.

Spangler does enforce its work rules. In Spangler Candy Company and

International Brotherhood of Teamsters Local 20, FMCS Case No. 15-55230

(Burkholder Arb; January 11, 2016), the Company terminated an employee for

smoking:

This arbitration arises out of the termination [of an employee] for violation
of a work rule prohibiting the use or possession of tobacco or nicotine
products on company property, with a zero tolerance or no second chance
provision. Id. @ 2.

Human resources director … testified, or, per the Union posthearing brief,
acknowledged that the Grievant had been smoking a cigarette in her vehicle
while on the Company's parking lot prior to clocking in for work. This was
clearly verified by video from a security camera, and was not questioned or
challenged by the Union, and was admitted by the Grievant. Id. @ 5.

In addition to work rules that are made known to employees, including

Grievant, the Company has employees sign the Spangler Candy GMP [Good

Manufacturing Practice] Pledge, which begins with a statement of the Spangler

Candy GMP Policy:

Spangler Candy is committed to the manufacturing of the best quality

wholesome product as defined in the guidelines for food safety and food
manufacturing regulations established by the United States Food and Drug
Administration. The safety and quality of the food we manufacture are of
primary importance to our business. CX 10, Tab C.
4
Grievant signed the Policy 6 - 12 - 19. One of the notable promises Grievant made

was that “I will not smoke or use tobacco products of any kind on Spangler Candy

premises.” TR @ 307-308.

II. THE INCIDENT AT ISSUE

On Monday, October 24, 2022, at 5:37 am, Spangler video recorded an

object appearing to fall from Grievant’s person. The object subsequently was

identified as a STIIIZY vape pen.3 Grievant was suspended pending discharge and,

after a discharge hearing on October 28, 2022, he was terminated. In a memo dated

October 31, 2022, to the Union about the hearing, the Company stated in pertinent

part:

The company informed the union that [Grievant] was suspended pending
discharge on Monday, October 24, 2022 for Work Rule Violation II ─
Tobacco and Nicotine Products (including all forms of nicotine products,
alternatives and devices such as e-cigarettes): Prohibited in buildings,
grounds and parking lots.4

The employee states that he knows why we are here and that he is not
claiming any responsibility and is sticking to his story in which he states
nothing fell out of his pocket and that he has seen the video and does not
agree that something fell of a pocket. The employee states that he was
brought into the office unaware of the situation and was shocked that he was
being considered for this and states that he does not use tobacco and that he
was willing to take a screening for this. The employee states that he saw the
video and does not agree with it.
3
CX 1, Tab H; Cannabis Vape Reviews, https://cannabisvapereviews.com/;
https://www.stiiizy.com/
4
A memo from the Plant Superintendent, 3 rd Shift, dated Tuesday, October 25, 2022 12:21 AM,
states that “[Grievant] was SPD at 12:12 am for violation of work rule II-tobacco and
nicotine products in PSP area.” CX 7, Tab G; emphasis in original; footnote by arbitrator.
5
 The company states that all parties present saw the video when the
suspension was issued.
The union states that they had not seen the video.

The company states that they asked the employee to be completely honest
and acknowledge that you kept saying that you don't use nicotine or tobacco
products. The company states that the employee was advised to report to
Everside Clinic upon further investigation of the device that was found and
the suspected contents.

The employee states that he thought he was going for a nicotine test and
didn't have a problem with it.

The company questions the employee as to why the company would request
a nicotine test when nicotine is not a prohibited substance to test positive for
here. The company asks the employee how he explains testing positive for
THC in which the drug screening revealed.5

The employee states that the night that he left here he was upset and took 2
CBD6 infused gummy tablets in which he got from his mother because he
could not sleep. The employee states that he was kind of messed up from
what had transpired here and that he didn't know that the gummy's had CBD
and that this was the only time he ever took them. He states that he has never
been dishonest and states that he understands the importance of rules. The
employee states that he will take responsibility of consuming the gummies
and that this is all he know.

The company states that they are really struggling with this as the drug
screen result came back positive for THC, which matched the chemical in
the vaping cartridge found.

The employee states that it was 10 years ago that I last used something and I
went to my mom's and she told me that these gummy's would make me sleep

5
Tetrahydrocannabinol (THC); https://en.wikipedia.org/wiki/Tetrahydrocannabinol; footnote by
arbitrator. Various terms are used in the arbitration exhibits and testimony—marijuana, cannabis,
TCH—all of which relate to products forbidden by Spangler work rules, so it is unnecessary to
make fine distinctions.
6
Cannabidiol (CBD); https://en.wikipedia.org/wiki/Cannabidiol; footnote by arbitrator.

6
 in which I didn't realize could be a turning point to my job here. I was pretty
upset so that is why I took them from the package.
The company states that the video clearly shows there was no device on the
floor prior to the employee walking in the area and then there it was, very
clear that it came out or off of the employee's possession.

The employee states that he can't explain that and thinks that it possibly hit
his foot and that he does have some physics knowledge and the device may
have followed him at or at least moved and hit my foot as I walked by it.

The company states that they find it hard to believe the device didn't fall out
of his pant leg or a sock as it is visibly not lying on the floor, then it is
visibly on floor after you walk thru and you end up testing positive for the
same drug that is in the device. The company states that things this isn't
adding to your story.

The employee states he agrees, that something is not adding up.

The company states that the suspension pending discharge status is moved to
discharge effective 10/28/2022. JX 3, Tab K; prepared by HR Coordinator,
TR @ 172, 225.

Grievant signed a grievance form dated 10-28-22, which was received by the

Company on 11/1/22. JX 2, Tab J (“Discharged, accused of cannabis vape pen.”).

In a memo dated November 30, 2022, to the Union, the Company stated in

pertinent part:

A 3rd step grievance meeting was held from 1:00 P.m. - 2:13 P.m. Tuesday,
November 1, 2022. …

The union states the reason we are here is due to the suspension that was
moved to discharge on October 28, 2022 for [Grievant]. …

The company advised that Work Rule III: Substance Abuse/Drug Free
Workplace has also been violated and to include and amend Work Rule III
and the original Work Rule II: Tobacco and Nicotine Products and Zero
Tolerance XVII: Tobacco and Nicotine Products as work rule

7
 violations.7

The union called a point of order surrounding Work Rule III: Substance
Abuse/Drug Free Workplace and they will accept it and amend to it include
all the work rules listed.

The union advised they were made aware the company has video footage.

The company stated there is video footage and provided the video for all
union representatives in the meeting to view.

The union questioned the time frame in which the employee was suspended
to the time the drug test for the employee was requested by the company and
asks if the employee was suspended when the drug test was performed.

The company stated they looked at the device and questioned the substance
in the cartridge. The vape pen was taken to the local Sheriff's department by
the Director-Security and verified that it was a Vape Pen that contained a
cartridge with THC and so the employee was contacted and requested to go
for a drug screen. The employee voluntarily completed the drug screen.

The company stated originally the device was thought be nicotine which is
violation of Work Rule II: Tobacco and Nicotine Products and Zero
Tolerance XVII: Tobacco and Nicotine Products therefore, the employee
was suspended pending discharge for violating these work rules. …

The union stated that he was off the clock when tested positive. The union
states they feel the Work Rule III violation is a far stretch. The union asks
what the THC levels were.

The company states that the MRO results has not been received yet, however
the initial test was positive for THC and therefore the test was sent on to a
Medical Review Officer. The company stated that the MRO will contact
[Grievant] for details surrounding the positive result.

The union stated that this could be the case of a false positive test and can be
7
There is no work rule XVII; the Zero Tolerance sentence is unnumbered; footnote by
arbitrator.

8
overturned and requests a copy of the MRO report along with the THC
levels when known.

The company stated that the employee had the device on premise when it
fell from his person. The employee was suspended at 12:30 a.m. on
10/25/2022 and was then sent for drug test at 11:00 a.m. on 10/25/2022 in
which he tested positive for THC.

The employee stated he took the gummies he thought were CBD and when
he didn't feel good he noticed that they were THC infused. The employee
states that it was 4:00 a.m. when he took them because he was very upset
about being suspended from a position like this.

The union stated the video does not clearly show what the item is and does
show another employee take possession of the item and this is a change of
custody, you are stating that it came from him, however due to the change of
custody, broken custody with another employee touching the item, how can
supervision prove possession.

The company stated that the video clearly shows [Grievant] is the owner of
the device.

The company stated the employee would still face the consequences for
having the THC device on site and just because another employee turned in
the device does not exempt him from discipline. The discipline was issued
due to him having it in/on his possession while at work.

The union stated this has to be proven as it looks like he stepped on this item
while it was on the floor and asks to put a hold on this and not to render a
decision at this time.

The company stated that it fell off his person onto the floor in which another
employee found it and turned it into supervision.

After a caucus, the company reports to the union and the employee that they
have discussed the scenarios that were outlined and the video is very clear ─
the device fell from [Grievant]. The company advised the termination
stands. The company states they will provide a copy of the video to the
union and advised the employee that the MRO will be in contact with him.
…
9
 Subsequent to the meeting, on November 17, 2022 the company provided to
the union, the video footage of this case, the positive test result from the
MRO, the report from the Director-Security about the confirmation of the
THC cartridge with the Sheriff's department.

The 3rd step grievance … is denied and the termination stands. CX 9, Tab
M; emphasis in original; prepared by VP Human Capital, TR @ 225; used
by arbitrator in unvarnished form because it was prepared closest to the 3 rd
step grievance meeting.

The Union’s observation that Grievant might have “stepped on this item

while it was on the floor” was proved to be untenable, as Grievant would have

been aware of stepping on it, because of its size. TR @ 74.

III. WHAT THIS CASE IS NOT ABOUT

Grievant is not accused of a crime; indeed, that word has not even been used

in the proceedings heretofore. He is not accused of using tobacco or marijuana at

work. He is not accused of being under the influence of marijuana on the job. He is

not accused of poor work. He is not accused of contaminating any product. He is

not accused of any dishonesty, prior to this incident. In deciding upon the proper

burden and standard of proof, it is important to bear in mind what the case is not

about.

IV. THE BURDEN AND STANDARD OF PROOF

In Pence v Employment Security Commission, 349 NC 315, 322; 507 SE2d

272; 1998 NC LEXIS 728; 14 IER Cas (BNA) 1080 (1998), the North Carolina

Supreme Court noted:

10
 The United States Supreme Court has never required the allocation of a
particular burden of proof in an employee termination dispute. In Lavine v.
Milne, 424 U.S. 577, 47 L. Ed. 2d 249, 96 S. Ct. 1010 (1976), the Supreme
Court did recognize the important and potentially dispositive effect of the
allocation of the burden of proof. However, in that decision, the Court also
stated, "outside the criminal law area, where special concerns attend, the
locus of the burden of persuasion is normally not an issue of federal
constitutional moment." Id. at 585, 47 L. Ed. 2d at 256.

Although Pence was a state government employment case, it illustrates the fact

that there is discretion in allocating the burden of proof.

In Elkouri & Elkouri, How Arbitration Works (Bloomberg BNA 8th ed

2016), the burden of proof is discussed as follows:

Arbitrators have consistently ruled that the burden of proof in [discharge or

discipline] cases rests with the employer and that the arbitrator may
determine the weight and relevancy of evidence to decide the controversy.
Id. @ 8-13; footnote omitted.

The burden of proof is generally held to be on the employer to prove guilt of

wrongdoing, and probably always so where the agreement requires just
cause for discipline. Even where the agreement is silent as to whether just
cause is required for discipline and discharge decisions, arbitrators generally
place the burden of proof on the employer to demonstrate just cause for such
decisions. Id. @ 15-25; footnotes omitted.

The Collective Bargaining Agreement in this case does contain a cause

provision:

Article 5, Management Rights, 5.2 “[T]he term ‘Rights of Management’

includes: 5.2.3 The right to … discharge with cause any employee.”

The arbitrator interprets the clause to mean just cause. TR @ 5 (“for good cause --

for good reason”). At the beginning of the hearing, the arbitrator stated that the

11
burden of proof is on the Company. TR @ 4. The difficult issue presented is the

appropriate standard of proof.

The How Arbitration Works treatise continues:

The quantum of proof required to support a decision to discipline or

discharge an employee is unsettled. Arbitrators have primarily imposed one
of three standards, listed below from the least to the greatest burden:
1. Preponderance of the evidence;
2. Clear and convincing evidence;
3. Evidence beyond a reasonable doubt.

Concerning the quantum of required proof, many, if not most arbitrators

apply the "preponderance of the evidence" standard to ordinary discipline
and discharge cases. However, in cases involving criminal conduct or
stigmatizing behavior, many arbitrators apply a higher burden of proof,
typically a "clear and convincing evidence" standard, with some arbitrators
imposing the "beyond a reasonable doubt" standard. But, even in cases of
criminal behavior or socially stigmatizing conduct, some arbitrators require
only a "preponderance of the evidence." In addition, some arbitrators are
beginning to use the “clear and convincing evidence" standard for discipline
that does not involve criminal behavior or stigmatizing conduct. How
Arbitration Works @ 15-26─15-27; footnotes omitted.

See generally, Sysco Indianapolis, Inc and IBT, Local 135, 14-2 ARB ¶ 6206

(Kininmonth Arb 2014) (BURDEN OF PROOF).

The Union urges a high standard of proof:

Due to the severe nature of discharge, which has been described as the
capital punishment of industrial society, many arbitrators apply a heightened
standard of proof. This requires an employer to establish cause for discharge
by more than a mere preponderance of the evidence. See, Greater Dayton
Regional Transit Authority, 138 L.A. 1077, 1090 (2018) (applying the
standard of clear and convincing evidence); A.R.A. Mfg., Co., 83 L.A. 580
(1984) (applying standard of clear and convincing evidence); Owens-
Corning Fiberglass Corp., 86 L.A. 1026 (1986) (“requiring good and
sufficient evidence”); and General Telephone Co. of California, 73 L.A. 531
12
 (1979).

The arbitrator in City of Cleveland and Cleveland Police Patrolman’s Assoc,

108 L.A. 912 (1997) held that an employer in a discharge case must prove
its case beyond reasonable doubt. Other arbitrators, although not requiring
proof beyond a reasonable doubt, have held that the arbitrator should require
the company to clearly demonstrate that it had cause for the termination of
Grievant’s employment. In Nabisco Brands Inc. and Bakery, Confectionary
& Tobacco Workers, Local 300, 106 L.A. 422 (1996) (Wolff, Arb.), the
arbitrator addressed the termination of an employee for allegedly fighting
with another employee. Arbitrator Wolff held that the burden of proof in a
discharge case, although not beyond a reasonable doubt, is a standard which
requires that the arbitrator be convinced of the accuracy of the charges.
Accordingly, an evidentiary standard of mere “preponderance of the
evidence” is insufficient. See also Ken Meyer Meats Inc. and Food &
Commercial Workers, Local 7A, 107 L.A. 1017 (1996) (Sergant, Arb.), and
Grand Rapids Area Transit Authority and Transit Union Local 836, 107 L.A.
1132 (1997) (Daniel, Arb.) (burden of proof in discharge case is clear and
convincing evidence). Union Brief @ 8-9.

In SEIU Local 79 and United Methodist Retirement Communities, 2004 WL

6016112; 32 LAIS 270; 104 LRP 43343; 105 FLRR-2 3; 104 LRP 29256 (Arb

2004), the arbitrator did use a clear and convincing standard in a case involving

moral turpitude. However, in the usual case, he applies a preponderance of the

evidence standard, sometimes described as more probable than not. 8 AFGE Local

1658 and Army Tank-Automotive Command, 11-2 ARB ¶ 5361, *5; 2011 WL

7637774; 111 LRP 61232 (Arb 2011); cited in Dep’t of the Army, 133 LA 1476,

1489; 14-2 ARB ¶ 6274; 114 LRP 41211 (Kininmonth Arb 2014); and in DVA,

Indianapolis, Indiana and SEIU Local 551, 139 LA 244, 268; 18-1 ARB ¶ 7141;

2018 WL 3913272; 47 LAIS 48; 118 LRP 19649, *28-29 (Kininmonth Arb 2018).
8
https://www.law.cornell.edu/wex/preponderance_of_the_evidence
13
Because Grievant is not charged with any anything involving moral turpitude, the

preponderance standard is appropriate in the context of this case.

Spalding operates a candy factory. Its work rules have a two-fold purpose:

to safeguard the facility and its workers, 9 and to protect the purity of its food

products. TR @ 184-185. Similar concerns were voiced in Excel Corp, 89 LA

1275, 1280 (McDermott Arb 1987):

There is no question that for a plant like a meat packing plant, the use of
drugs and alcohol on Company property is a serious offense. The chances
for industrial accidents, while under the influence of those chemicals is
extremely high and it was a problem with which the Company was
concerned.

A high standard of proof could mean that risky conduct goes unpunished. Of

particular concern to the Company is possible contamination of its food products.

To protect their purity, the Company needs to be able to act decisively, even in

instances where there may be some doubt. Sysco, supra, *11, quoting General

Electric Co, 72 LA 391 (MacDonald Arb 1979) (“This arbitral standard of proof is

less rigorous than the criminal standard; thus, the Company is not obliged to

eliminate every reasonable doubt.”). For that reason, the arbitrator believes that the

preponderance standard is the right one to apply here.

V. THE COMPANY’S PRIMA FACIE CASE

9
TR @ 192-193. See also, Death Toll Rises to 7 in Chocolate Factory Explosion
https://www.nytimes.com/2023/03/24/us/fire-chocolate-factory-west-reading.html

14
 Company premises are monitored by 166 video cameras. The Company has

presented photographic evidence—video, slow motion video, and still photographs

—that conclusively shows an object falling from Grievant’s person. CX 3, Tab P,

consists of five video segments, copies of which were provided to the Union and to

the arbitrator. They are described by the Company as follows:

P-1: 10/24/22 5:36-6:00 am (24 min/28 secs)

P-2: 10/24/22 [Grievant] full video (13 min. 1 sec)
P-3: 10/24/22 [Grievant] A (15 secs)
P-4: 10/24/22 [Grievant] B (31 secs)
P-5: [Grievant] SlowMo (59 secs)

To the arbitrator, the object appears to have come from Grievant’s right pant leg. It

can be seen to move, presumably from hitting the floor. TR @ 98 (“The object

continued to travel … down. … It appears to still be in motion.”).

The Director of Security gave the object to the HR Coordinator, who saw the

word STIIIZY on it, and did an Internet search, which revealed that STIIIZY.com

advertises marijuana products. Upon learning that, the Coordinator scheduled a

drug test for Grievant at Everside/Activate Health Clinic on 10/25/22 at 11:00 am.

She called Grievant at home and told him to go for the test, which he did. Neither

Grievant nor the Union raised any objection to the test. An initial test produced a

positive result for THC. CX 12, Tab I. The initial test subsequently was confirmed

by a Medical Review Officer on November 15, 2022.

15
 On the afternoon of October 25, 2022, Spangler’s Director of Security took

the object to the Williams County Sheriff Department, where a field test was done.

TR @ 21-25. At the Sheriff Department, the Director took two photographs

included with CX 2, Tab F, and made the following note:

10/25/22, 1:15pm at the Williams County Sheriff’s Office. I witnessed the

liquid being tested by Det. … . The cap that housed the liquid was removed
from the container. Once the cap was removed a strong odor of marijuana
could be smelled by myself and Det. … . A sample was swabbed and placed
into the test kit by Det. … . Det. … advised that the sample should turn red
if it is positive for marijuana. Within seconds the sample turned red
confirming the liquid inside the cap. Photo taken and added to report.
[Director’s initials].
CX 2, Tab F; emphasis in original.

It is important to consider that the Director of Security is also an auxiliary

officer in the Sheriff Department. TR @ 14; Company Brief @ 10. He reviewed

video footage 50 times. TR @ 17, 91. The fact that he detected “a strong odor of

marijuana” is sufficient to make out a prima facie case of marijuana possession by

Grievant, under a more probable than not standard. TR @ 24-25. Moreover, even

without the smell test, there is prima facie evidence of possession of drug

paraphernalia prohibited by Work Rule III.a, because the object bore the brand

name STIIIZY.10 https://www.stiiizy.com/; TR @ 18. The fact that a field test for

marijuana produced a positive response is unnecessary for the Company’s case. It

also is important to bear in mind that no test proves Grievant used marijuana at

10
In the first photograph under CX 2, Tab F, STIIIZY is visible on the lower right of the vape
pen. TR @ 73.
16
work or was under its influence on the job. This case is not about anything other

than possession inside the plant.

The Union attacks the Company’s case first by suggesting in the

Introduction to its Brief that Grievant was charged with violating only “Work Rule

II – Tobacco and Nicotine Products”. Id. @ 2. On the grievance form, JX 2, Tab J,

Grievant himself wrote “Discharged, accused of cannabis vape pen.” Thus, work

rules pertaining to drugs are decidedly in play. TR @ 181, 187-188. There also is

an interesting take on Tobacco Work Rule II, which by its terms, includes tobacco

“alternatives”.

At 7:45 on Saturday morning, February 25, 2023, the arbitrator posed the

following question and submitted it to the AI-enhanced Bing.com search engine:

what is an alternative to tobacco

This is the answer that was returned:

List of Natural Substitutes For Tobacco

 Damiana (Turnera diffusa)

 Acacia retinodes Schlechtend. (aka Swamp Wattle)
 Brunfelsia spp.
 Camellia sinensis (Linnaeus)
 Cannabis
 Lavender Leaves
 Cestrum nocturnum Linnaeus
 Duboisia hopwoodii

Concededly, the term “alternatives” is not defined in the CBA or other

arbitration exhibits or in any brief, but—if Cannabis is an alternative to tobacco—

17
then taking it onto Company property constitutes one of the unforgivable wrongs

for which there is Zero Tolerance. The Company’s substance abuse policy might

have shed light on the issue, had it been produced.

The Union attack continued:

In the instant case the Union submits that the Company failed to sustain its
burden of proof that the Grievant was discharged for cause for four different
reasons:

(1) There is no evidence that the Grievant had possession of the alleged
“vape device” at any time on October 23 or October 24;

(2) There was no chain of custody for the alleged “vape device;”

(3) The Company’s evidence failed to establish proper testing of the alleged
“vape device” by Detective …; and

(4) The Company failed to present any evidence that the Company followed
any procedures for a reasonable suspicion drug test of the Grievant or that
any procedures to authenticate the drug test was adopted by the Company or
followed. Union Brief @ 9.

Union point (1) is the key factual issue presented, which the arbitrator

resolves against Grievant. Company witnesses and the arbitrator see the disputed

object as coming from Grievant’s person. TR @ 93, 99, 153, 189.

As to (2), the chain of custody was the chain of command on duty on the 3 rd

and 1st shifts. In a factory operating on three shifts, it is expected that discipline

issues that arise on the 3rd or midnight shift will be addressed by administrative

personnel when they come in on the 1st or day shift. See, for example, PACE Local

731 and Mead Corporation, 2001 WL 36364797; 105 LRP 50252 (Arb 2001). Of

18
necessity, there will be a transfer of information and objects as the situation

requires. Company Brief @ 18.

The Company exercised reasonable care in handling the vape pen; after all,

it was operating a candy factory, not a crime lab. Once again, this is not a criminal

case, and so criminal standards do not apply. The Company is entitled to a

presumption of regularity in its handling of the vape pen, as there is no reason to

believe that anything untoward was done. Hill & Sinicropi, Evidence in

Arbitration (BNA 2nd ed 1987) @ 21-23; How Arbitration Works @ 8-55─8-56.

The Union expressed great concern that the employee who picked up the

vape pen, and so began the chain of custody, was not called as a witness:

[The employee] was not requested by the Company to testify and did
not appear to testify during the hearing. Without direct and cross
examination of [her], the record is devoid of any evidence of how [she] was
aware that the alleged “vape device” was a tobacco product. As advertised in
numerous magazines and on television, most of the vape devices are non-
tobacco devices used to slowly ween people from smoking tobacco products.
Additionally, when [the Director of Manufacturing] asked [her] to
take him to the PSP area and show him where she found the black item the
video showed her picking up earlier that morning, [she] took Mr. Dunlap to
a location in the PSP area some 10 to 20 feet away from where the video
showed [her] picking up a black item from the floor where the Grievant had
walked through sometime earlier. …
Since [the employee] was not available for examination and cross
examination, the record is incomplete about where in fact [she] found the
alleged “vape device.” [She] was not in the cameras view for a long period
of time after she walked through another doorway and into a different area
of the Company’s facility. Based on the video evidence shown at the
arbitration hearing, [she] could have found the alleged “vape device” after
she went out of site of the camera and into another area of the Company’s
facility and then took the alleged “vape device” to [the Director]. Without
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 evidence showing a clear and unabated chain of custody of the alleged “vape
device,” the Union submits that the Company’s evidence failed to
demonstrate that the Grievant was ever in possess and control of the alleged
“vape device” that led to the termination of his employment. On this basis
alone, the Union submits that the grievance in this matter should be
sustained in its entirety and the Grievant’s termination overturned. Union
Brief @ 12-13.

The straightforward response is that the employee is a Union member and easily

could have been called by the Union—and certainly would have been called—if

she had any information helpful to Grievant’s case. Company Brief @ 5 (“a union

employee”).

As to Union Brief points (3) and (4), none of the tests conducted is essential

to the Company’s case, and no test proves that Grievant used or was under the

influence of marijuana while at work. The Company Brief at times seems to

suggest that the work rules cover off-duty drug use per se, without regard to any

impact on the workplace (Id. @ 1, 4, 6, 7, 8, 10, 12, 14, 16), but the rules do not

say so explicitly, and any employer that attempts to regulate the off-duty conduct

of its employees has a high hurdle to clear. Mfg Bard Co, 91 LA 193, 196-199;

1988 WL 1639681; 15 LAIS 4277 (Arb 1988).

VI. THE UNION’S BURDEN OF GOING FORWARD

Once the party having the burden of proof has presented a prima facie case,

the burden of going forward with the evidence shifts to the opposing party.

International Brotherhood of Boilermakers and Hanson Aggregates, 2022 BNA

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LA 43; 23-1 ARB ¶ 8068, *5; 2022 WL 18107677; 2022 BL 442385 (Arb 2022),

was not a disciplinary case, so the union had the burden of proof. There, the

arbitrator wrote:

However, once the Union has made out a prima facie case, the burden of
going forward with the evidence shifts to the Company. HOW
ARBITRATION WORKS (Bloomberg BNA 8th ed 2016) @ 8-105; Hill &
Sinicropi, EVIDENCE IN ARBITRATION (BNA 2nd ed 1987) @ 41-43.

The principle was applied in AFGE Local 2317 and Marine Corps Logistics Base,

15-2 ARB ¶ 6538, *7; 2015 WL 6473081; 115 LRP 49113 (Arb 2015), and

National Aeronautics and Space Administration, Marshall Space Flight Center

and American Federation of Government Employees, Local 3434, 1994 WL

16857194; 105 LRP 55150 (Arb 1994). In this case, the arbitrator believes that

burden of going forward with the evidence should be a heavy one. Pence v ESC,

supra.

In Grievant’s defense, the Union raises a number of hypotheticals:

Assuming arguendo that the Grievant possessed alleged “vape device”

during his shift between 10:00 p.m. and 7:00 a.m. on October 23 and
October 24, 2022, he would have no reason to reach into his pocket to pull
the alleged “vape device” out of his pocket between 5:30 and 6:00 a.m. on
the morning of October 24, 2022. His shift was almost over and if he had
possession and control over the alleged “vape device,” there is no reasonable
basis to believe that at the very end of his shift he would want to try to use
the alleged “vape device” in the PSP area while still on the clock.

Additionally, there was no evidence introduced at the hearing by the

Company that somehow between 5:30 a.m. and 6:00 a.m. on October 24,
2022 the alleged “vape device” found a whole in the Grievant’s pants and
traveled down his pant leg and fell out of his pant leg on the floor just across
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 the second yellow line while the Grievant was walking in that area. Again,
assuming arguendo that the alleged “vape device” either fell out of the
Grievant’s hand or fell out of the bottom of the Grievant’s pant leg, the
Grievant, knowing that having possession of an alleged “vape device” would
be a basis for discipline up and including termination, would have
nonchalantly, to avoid bringing attention to himself, picked-up the alleged
“vape device” and placed it in his clothes to avoid detection.

Since the video evidence demonstrated that there was no one else closely
near where the Grievant supposedly “dropped” the alleged “vape device”
had fallen to the floor, the Grievant could have retrieved the “alleged “vape
device” without being detected. There is no reasonable basis to believe that
the Grievant would have left the alleged “vape device” on the floor near the
second yellow line knowing that it could be easily observed by anyone
walking through the PSP area inside of the two yellow caution lines in open
view. Of course, the Union submits that there would be no reason for the
Grievant not to attempt to retrieve the alleged “vape device” with some
urgency in order to avoid being detected. The Grievant took no such action
and proceeded to another work area in the PSP area for him to perform
additional work for the Company until the end of his shift. Union Brief @
10-11.

The counter argument is that there is no evidence as to how or where the

object was attached to Grievant’s person, or how far the object fell before it hit the

floor. It may have made little or no noise or the plant area may have been noisy, so

that Grievant did not hear it hit the floor and thus was unaware that he no longer

had possession. In any event, Spangler workers, including Grievant, are required to

don clean uniforms each workday, so that Grievant must have been conscious of

the vape pen when he changed into his uniform on the day he brought it onto the

premises. TR @ 88-91, 102, 106, 185 (“when people come in, they have to change

into a clean, laundered uniform every day”). There was no “accident” or

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inexplicable event in this case.

The Union’s conjectures do not suffice. Grievant—the one individual who

knows, or should know, just what happened—had four opportunities to explain

himself, when he first was confronted (TR @ 294-296, 302-303), at the discharge

hearing (JX 2, Tab J), at the 3 rd Step meeting (CX 9, Tab M), and before the

arbitrator. At the arbitration hearing, Grievant testified as follows:

Q. Since the first time you saw the video, and now that you have seen it,
when we met multiple times, you have seen it. Do you have anything to
change in your testimony about that?

A. No, absolutely not.

Q. You didn't have any possession of the -- this device that they're saying?

A. No, sir.

Q. Okay. You didn't use any marijuana products, other than eating some
CBD gummies?

A. That's correct, no. I have not used any other products prior or previous,
before or after, I guess. TR @ 296-297.

After examining the still photographs in CX 5, Tab N, the following exchange with

Grievant took place:

Q. Okay. And even to this day, you still don't have an explanation … as to
where this device came from?

A. That's correct. TR @ 301.

VII. AWARD

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 The case was well briefed by both counsel. Grievant had “a big job”. TR @

193. He was willing to work the 3rd shift. He had valuable experience, and the

Company sent him to school to hone his skills. There were no complaints about his

work. He had no disciplinary problems. It therefore is difficult for the arbitrator to

believe that a team of Spangler managers would concoct a story and conspire to

fire him, given the labor supply shortage the country currently is experiencing. It

also is difficult to understand why Grievant would jeopardize a well-paying job

with a stable Company by taking a marijuana vape pen into the plant, in blatant

violation of work rules.

On balance, the arbitrator feels that he must find that the STIIIZY vape pen

came from Grievant’s person, as alleged by the Company. The vape pen

constitutes drug paraphernalia, which is forbidden on Company property by Work

Rule III.a. “Possession of the vape device alone supported a violation of the

serious work rules subjecting him to immediate discharge.” Company Brief @ 17.

The Company was justified in terminating Grievant’s employment. Therefore, the

grievance is DENIED.

________________________________
E. Frank Cornelius, PhD, JD, Arbitrator

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