Ranger Who Inhaled but Didn’t Smoke Wins Reinstatement

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By Jon Steingart

Aug. 26 — A park ranger in Washington, D.C., who was fired after failing a drug test won an appeal of his termination ( Rodriguez v. D.C. Office of Emp. Appeals , 2016 BL 275979, D.C., No. 15-CV-997, 8/25/16 ).

The city notified Florentino Rodriguez of a hearing where his removal would be considered, Judge Phyllis D. Thompson wrote Aug. 25 for the District of Columbia Court of Appeals. The city didn’t provide a separate notice to his union, which was required under the collective bargaining agreement, she said.

The contract said that “failure of the Employer to issue such notice shall preclude the discipline” imposed as a result. This consequence stood out among other contract provisions for its particularity, Thompson said.

“This is going to make a major difference in cases where the consequence is spelled out,” John Pressley Jr., a Washington attorney who represented Rodriguez, told Bloomberg BNA Aug. 26.

“There’s a difference between a provision that spells out specific consequences as opposed to a provision that provides a specific deadline or time for notice of a particular type,” Pressley said.

The collective bargaining agreement went “further than merely establishing a notice-to-the-Union requirement,” the judge wrote. The contract “spelled out specific consequences if the union was not notified,” she said.

“Here, whatever the Union’s reason for bargaining for the failure-of-notice-shall-preclude-discipline provision, we cannot conclude” the government adhered to the contract when it didn’t separately notify the union, she said, reversing Rodriguez’s termination.

Purpose of Notice Requirement Debated

Florentino Rodriguez said he tested positive for marijuana because he inhaled secondhand smoke produced by someone else toking nearby. A hearing officer filed a report that concluded Rodriguez’s contention didn’t impugn the test’s findings, Thompson said.

The parks department official who fired Rodriguez and an administrative law judge who sustained the action “seemed to assume” the notice requirement was intended to provide employees with a chance to secure representation, Thompson said. The official wrote that Rodriguez’s rights weren’t undercut because he was “ably represented in this matter by his attorney.”

Even if the official’s understanding of the notice requirement’s purpose was correct, “an employee’s success in obtaining legal representation is not a substitute for the required notice to the Union,” Thompson said.

“The Union possibly had some other objective that we do not (and need not) understand and will not attempt to second-guess,” Thompson said. “It is enough to recognize that the Union bargained for a specific prohibition: that failure to give timely notice to the Union precludes discipline,” she wrote.

Washington's attorney general represented the city. A spokesman declined to comment Aug. 26.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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