NEVER BORROW A STRIPPER’S VAPE PEN

A Correctional Officer at the Federal Bureau of Prisons is learning why. After a death in his family, he went to a bar, had one too many, took a few hits off a stripper’s vape pen he borrowed there and attempted to drive home.  Long story short, he wound up in a ditch, got blood tested by the troopers, and registered a positive hit for the ganja. When he tells his supervisor the next day, the agency retests him and it finds the wacky baccy as well. The employee’s explanation is that it must have come from the stripper’s gear. Between the mary jane traces in his blood and the DWI, the agency fired him and an arbitrator upheld his termination.  But in a case that has a couple of lessons for any union rep defending a terminated employee, the Federal Circuit Court of Appeals reversed the  arbitrator and sent the case back to him to reconsider.  Here is why.

While the employee admitted that he “tested positive” for weed, the arbitrator took that to mean that he was admitting to knowingly smoking grass. That may seem like a small difference, but the court said it was an important distinction. Even his suggestions that positive test results may have been due to his vaping was speculation, not an admission. Given that the arbitrator repeatedly referred to the employee’s admission, the court held that improperly prejudiced the employee.

In addition, the arbitrator also looked into whether or not someone would test positive for the Devil’s lettuce more than three days after ingesting it. (It had been more than three days since the employee’s stripper friend let him borrow her pipe and the agency test.)  However, since neither the employee nor agency raised this possibility in the hearing, the court  found it was wrong for the arbitrator to look into this at his own initiative. “The arbitrator erred in conducting his own independent research and relying on it to make material findings on which his decisions clearly rest…Neither party had notice of the materials the arbitrator found on the internet, and neither party had the opportunity to contest or contextualize them.” This is something union reps should look for not only in arbitration decisions they lose, but also in reports from deciding officials or even in final decision letters. Holding something against an employee that you never charged him with or brought to his attention is a fundamental due process violation.

For more details in the case, check out Charles Hagg, V. Federal Bureau Of Prisons, No. 2023-1071 (Fed. Cir. August 16, 2024)