Court finds reinstatement of bus driver with positive drug test permissible |
On Board Online • February 25, 2013
By Kimberly A. Fanniff
New York’s highest court has upheld the reinstatement of a school bus driver who was terminated after a positive random drug test.
In Shenendehowa Central School District Board of Education v. Civil Service Employees Association, Inc. the union filed a grievance after the district terminated the bus driver. Under terms of the collective bargaining agreement (CBA) the parties agreed to arbitrate whether the termination violated the CBA.
Pursuant to the parties’ contract, progressive discipline was generally employed but the CBA specifically provided suspension without pay or discharge could be invoked where an “employee’s conduct creates a danger to the health, safety or welfare of staff, students and or the general public or creates a danger to property.” A positive drug test was defined in the CBA as such conduct. The arbitrator determined the penalty of discharge was too severe based upon the driver’s prior ten years of unblemished service. He then reinstated the bus driver without back pay and subject to conditions mandated by federal law including evaluation by a substance abuse professional and follow-up drug testing.
In its decision, the Court of Appeals acknowledged that there are only three narrow grounds for overturning an arbitration award – that it violates public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power. According to the court, none of those grounds were present in this case.
The court found the arbitrator’s award was neither irrational nor did it exceed any limitation of the arbitrator’s authority and the court agreed with the arbitrator’s determination that the agreement did not require termination in these circumstances. The court also emphasized that the reinstatement with conditions did not violate public policy explaining that disagreement over what the proper penalty should be does not provide a basis for “vacating the arbitral award or refashioning the penalty.”
NYSSBA filed a friend of the court brief in support of the district arguing that the myriad of state statutes and regulations governing the hiring, training and monitoring of school bus drivers evinces a strong public policy to ensure the safety of students while on school buses.
According to NYSSBA’s argument the reinstatement of a school bus driver
after a positive drug test violated this public policy.
Based upon this decision, school boards should review the contents of their bargaining agreements to determine if they are satisfied with the authority the agreement grants the board to discipline and/or terminate school bus drivers who test positive for drug use. If the board is not satisfied with its authority it should address such issues through collective bargaining.