The grievant, an assistant school custodian for 16 years, was terminated for non-compliance with her Last Chance Agreement. The employer contended that just cause existed because she failed a medical screening test. The grievant was given a Breathalyzer test and did not supply enough breath for the test to be performed.

The Last Chance Agreement was signed in 1999 without Union involvement. The grievant testified that on the day in question, she had taken some over-the-counter cough medication to help with her asthma. She testified that she tried to participate in the Breathalyzer, but was not able to. The employer testified that the grievant first refused the test and later failed to give the sufficient air for the test to register.

The arbitrator concluded that in this case, the Last Chance Agreement did not waive any of the rights that had been negotiated by the Union. One of those rights was the right to "fair and just disciplinary procedures."
The issue as defined by the arbitrator is whether the grievant's non-compliance with the screening test was grounds for her termination.

The Arbitrator concluded that the employer did not carry its burden of establishing that termination of employment was justified and awarded reinstatement with back pay at her regular weekly rate.