Operating Engineer Files Suit Claiming Wrongful Termination

The terminated employee filed claims against both his union and his employer, alleging breach of both the collective bargaining agreement and the duty of fair representation, in addition to violations of the ADA.

Plaintiff John A. Rocchio submitted to a random drug test in the summer of 2019. His employer, E&B Paving, LLC (E&B) tests employees at random and maintains a zero tolerance drug policy.

Plaintiff tested positive for marijuana and was subsequently terminated. Explaining that the positive test was the result of cannabinoid (CBD) oil use - a legally sold hemp extract - Plaintiff met with his Union (International Union of Operating Engineers Local 103, D) to determine if he could be reinstated. Plaintiff decided to pursue filing a grievance against E&B who operates under a collective bargaining agreement with the Union. In filing his claim in Indiana federal court, Plaintiff alleged that the Union was hostile to his grievance claim, and that the employer terminated him based on a disability.

When the Plaintiff filed claims that both the Union and E&B had breached the collective bargaining agreement and duty of fair representation, the claims became subject to section 301 of the Labor Management Relations Act (LMRA) and the National Labor Relations Act (NLRA). This is termed a "hybrid" section 301 claim and only has grounds to be pursued when all other internal union remedies have been exhausted; however, courts may excuse the failure to exhaust all options if there is sufficient proof that union officials were overtly hostile, negating the possibility of a fair hearing. In this case, the court ruled that there was not adequate evidence of hostility.

The court further rejected Rocchio's claims that both E&B and the Union violated the Americans with Disabilities Act (ADA), contending that no reasonable jury would conclude that the Plaintiff was terminated for any reason other than the failed drug test.

Ultimately, the Indiana federal district court granted E&B's and the Union's motion for summary judgment.

Employers and unions that operate within collective bargaining agreements are encouraged to review the grievance and appeal process. Unions are specifically encouraged to review the drug policies of the organizations they partner with under these agreements.

Posted: April 26, 2022

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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