Tuesday, December 6, 2011

Zero Tolerance policy inconsistent with cba, reinstatement award confirmed

   The New York Appellate Division has confirmed an arbitration award reinstating an employee terminated after testing positive on a random drug test. The employee, who was employed as a school bus driver, tested positive for marijuana.  The parties’ collective bargaining agreement provided for progressive discipline “except for the most serious offenses.”  The cba also provided that “[s]uspension  without pay or discharge may be invoked with less than two (2) written warnings where the employee’s conduct creates a danger to the health, safety or welfare of staff, students and/or the general public…”. A positive drug test was explicitly recognized in the cba as falling within these parameters.
The school board asserted that it had a zero tolerance policy concerning positive drug tests, and two school board employees testified that the policy was the basis for the grievant’s dismissal and that they did not consider grievant’s prior work history or other circumstances in deciding to dismiss.
The arbitrator concluded that the employer violated the contract by failing to exercise any discretion in regard to the punishment to be imposed, relying instead on a policy it believed required termination.
The school board sought to vacate the award and the union sought to enforce it. The lower court granted the school board’s request, and the union appealed.The Appellate Division reversed. In the Matter of Arbitration Between Shenendehowa Central Scool District Board v. CSEA The court noted that despite the testimony about a zero tolerance policy, no such policy was contained in the cba nor was any such written policy produced. The court further noted that the drug testing policy that was produced contained provisions for follow up testing and other conditions for employees returning to work after testing positive.
The court concluded:

                        The arbitrator did not hold that petitioner violated the CBA merely because petitioner     discharged respondent; the arbitrator held that petitioner  violated the CBA by refusing to exercise any discretion in regard to the punishment to be imposed, with petitioner instead imposing what it believed  to be mandatory termination

The court found the award did not violate public policy, and that the arbitrator did not exceed his powers under the cba. As a result, the court reversed the lower court and confirmed the award.

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