Thе petitioner, Amalgamated Transit Union, Local 717 (union), appeals a decision of the public employee labor relations board (PELRB), in which the PELRB refused to implement an arbitrator’s award ordering the respondent, thе Manchester Transit Authority (MTA), to reinstate two union employees to their positions after testing positive for drug use by vacating the arbitrator’s award. We affirm and remand.
The MTA is a public employer of driver-operators, meсhanics, maintenance personnel, and other employees. The union is the duly certified bargaining unit for MTA employees. The MTA and the union entered into a collective bargaining agreement (CBA) that included a grievance process concluding with final and binding arbitration.
Ted Urban was employed in the summer of 1992 as a mechanic at the MTA garage. His duties included bus repair and maintenance, retrieval of broken buses, and plowing snow with a large dump truck at the garage lot. Urban tested positive for marijuana in a random drug test. He was suspended on June 26, 1995, and was advised that, under federal regulations issued under the Omnibus Transportation Employee Testing Act of 1991, he would be randomly tested six times in the next year and that he would be terminated if he tested positive a second time. On April 3, 1996, Urban again tested positivе. He was suspended on April 11, 1996, when the employer learned he tested positive, and on May 22, 1996, was terminated by the MTA.
Dave Conway was hired by the MTA in September 1985 and worked as a bus driver. Except for one minor, non-drug-related incident in 1987, Conway had a clean disciplinary record with the MTA. Conway’s name was randomly selected by computer, and he was taken while driving his route on May 26, 1996, and tested for drug use. On June 6, 1996, the MTA suspended him because his test results were positive for сanniboids, and ultimately terminated Conway on June 19, 1996. Conway acknowledged that he smoked a marijuana cigarette the weekend before he was tested.
The arbitrator also found that in 1990, the MTA “adopted a policy stating thаt use of drugs in the workplace was prohibited and that employees who violated the policy were subject to discipline up to termination.” Not until June 26, 1996, however, did the MTA adopt a formal “zero tolerance” drug policy requiring discharge on the first incident of an employee testing positive for drugs.
In February and March of 1997, an arbitrator heard the grievances filed in the Urban and Conway discharges. In both cases, the issues involved whether each еmployee was discharged for just cause. The arbitrator found that “[n]either grievant was tested because of alleged impairment in his job performance, and there is no evidence that either grievant was at any time impaired because of drug use.”
The arbitrator reversed the disciplinary terminations in both cases for several reasons. First, the MTA’s “zero tolerance” drug policy, adopted on June 26, 1996, was not in effect when either
We need not decide whether the MTA’s actions in disciplining these employees contravened the express language of the limitations period outlined in the CBA because, even if it did, we hold that strong public policy would prevent enforcement of that CBA provision.
The arbitrator found that there was “nо evidence that either grievant was at any time impaired because of drug use,” and ordered the MTA to reinstate the employees to their former positions. The MTA filed an unfair labor practice (ULP) complaint with the PELRB bаsed on the arbitrator’s award reinstating the two employees, and the union cross-complained that the MTA committed an ULP by rejecting the arbitrator’s decision. The PELRB found the union committed an ULP because the arbitrator’s awаrd was contrary to public policy, vacated the arbitrator’s award, and dismissed the union’s ULP claim. The PELRB found that “in 1990, the [MTA] had adopted a policy prohibiting the use of drugs in the workplace and stating that violators were subject tо discipline up to termination.”
“[A]dministrative agencies are granted only limited and special subject matter jurisdiction____” 4 R. WlEBUSCH, NEW Hampshire Practice, Civil Practice and Procedure § 1.03, at 3 (2d ed. 1997). Because administrative agencies act in a quasi-judicial capacity, see Gould v. Director, N.H. Div. of Motor Vehicles,
Relying on the dominant public policy against employees in safety-sensitive positions testing positive for drugs discussed in Exxon Corp. v. Esso Workers’ Union, Inc.,
Having found that a dominant public policy prohibits reinstatement tо a safety-sensitive position, we next determine whether the arbitrator’s award violates that policy. The union’s argument parallels the argument made by the defendant union in Exxon Corp. In Exxon Corp., a truck driver who tested positive for cocainе usage was dismissed under an established CBA provision allowing discharge for that offense. Id. at 843-44. In both the instant case and Exxon Corp., the union argued that the employee should not be disciplined absent evidence of job-related impairment. Although the employee wаs terminated in Exxon Corp. because there was a specific CBA provision allowing for termination, we agree with the First Circuit’s rationale and reject the union’s position in the instant case that the employees should be reinstated absent evidence of job-related impairment. As the First Circuit stated:
According to the Union, the positive result of [the employee’s] random drug test “merely” indicates the presence of cocaine in his bloodstream; it does not necessarily signify that [the employee] was under the influence . . . either at the time of the test or at the time he [was performing his work].
The Union casts this argument so narrowly that it misses the mark. Relying upon the job-relatedness as the sole determina
Id. at 849 (citations omitted). In the context of this case, implementation of the arbitrator’s award would place two public transit employees — one a driver and the other a mechanic — back in safety-sensitive positions after testing positive for drugs. The union’s argument that the MTA should reinstate the employees because there was no evidence of job-related impairment is incredible. Strong public policy may override the terms of a CBA, cf. Paperworkers v. Misco, Inc.,
Absеnt a clearly defined zero-tolerance drug policy, such as the 1996 “zero-tolerance” drug policy adopted after the discharges, no dominant public policy compels termination after a positive drug test. Cf. Exxon Corp.,
We have reviewed the record with respect to the union’s remaining arguments and find them to be without merit and warranting no further discussion. See Vogel v. Vogel,
Affirmed and remanded.