The issue in a recent grievance filed by a school bus driver was whether bringing cupcakes containing alcohol to work violated the company’s policy barring use of “intoxicating beverages” and constituted just cause for termination. The arbitrator deciding the issue held that the cupcakes did not violate the policy and therefore the action did not constitute just cause for termination.

The facts were as follows. Employees in the bargaining unit would occasionally bring food/beverages to share, usually toward the end of the workday. In 2013, the grievant brought “adult” cupcakes to two separate events and she did so once in 2014. On the date of the incident at issue, the grievant retrieved her cupcakes after she finished working and proceeded to offer them to employees, some of whom may still have been on work time. While doing so, she said that they contained alcohol and she apparently cautioned employees not to drive after eating them. Eventually, the Location Manager told her to stop handing out the cupcakes. He took a cupcake from one of the other employees and held it in his office as possible evidence.

Ultimately, the grievant was terminated for what was labeled “gross misconduct”, on the basis that she violated a company rule prohibiting “possession, use or sale of any intoxicating beverage . . . on Company property or while in possession of a Company vehicle . . .” The punishment for such conduct was immediate termination. The union grieved the termination and it went to arbitration.

In upholding the grievance, the arbitrator said the rule cited referred only to an “intoxicating beverage,” and concluded that based on the dictionary definition, that meant only a “drinkable liquid.” Since no such drinkable liquid was involved, he found the grievant’s conduct did not violate the rule. Perhaps recognizing that this was a very fine line of semantics, he made further findings. He noted that the rule had not been consistently enforced by the employer even as it pertained to drinkable liquids, citing a case where another employee was not terminated after taking a picture of herself with an unopened bottle of beer in the cab of her bus. He also noted the employer had never before notified employees that the rule could be broad enough to apply to food and in fact noted that the grievant said she had brought alcohol infused cupcakes before without any consequences. Next, he noted that there was no evidence that the cupcakes were actually intoxicating (apparently he never tried the sequestered cupcake). Finally, he pointed out that the rule was not equitably enforced; there was no evidence that the employees who accepted and ate the cupcakes were terminated for “possession” of alcohol in violation of the policy.

Although the decision may at first glance appear overly rigid in its interpretation of the policy, the arbitrator did make some important points about the employers conduct in similar situations and appears correct that the enforcement seemed random and inconsistent, particularly where it was not applied to the employees who accepted the cupcakes or previously had posed with a beer bottle. After all, we all know you can’t have your cake and eat it too.

These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.

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