SOUTHWEST OHIO REGIONAL TRANSIT AUTHORITY, APPELLEE, v. AMALGAMATED TRANSIT UNION, LOCAL 627, APPELLANT.
No. 00-21
Supreme Court of Ohio
Decided March 7, 2001.
91 Ohio St.3d 108 | 2001-Ohio-294
Submitted November 14, 2000. APPEAL from the Court of Appeals for Hamilton County, No. C-980974.
SYLLABUS OF THE COURT
Ohio has no dominant and well-defined public policy that renders unlawful an arbitration award reinstating a safety-sensitive employee who was terminated for testing positive for a controlled substance, assuming that the award is otherwise reasonable in its terms for reinstatement.
LUNDBERG STRATTON, J.
{¶ 1} Appellee, Southwest Ohio Regional Transit Authority (“SORTA“), operates a mass transit system in the greater Cincinnati area. Appellant, Amalgamated Transit Union, Local 627 (“Union“), is a labor union that represents certain SORTA employees, including bus maintenance workers. SORTA and the Union negotiated a collective bargaining agreement (“CBA“). Under the CBA, SORTA or the Union may submit to arbitration any otherwise unresolved grievance that arises from the interpretation or application of its terms. The CBA also
{¶ 2} In 1995, SORTA adopted a drug-and-alcohol-prevention policy (“drug policy“), which subjects “safety sensitive” employees to random drug testing. The test employed by SORTA incorporates federal standards under which an employee is tested to determine if certain metabolites, which are a byproduct of marijuana use, are present in the employee‘s urine. SORTA describes its drug policy as a “zero tolerance” policy; in other words, if an employee tests positive, the employee is terminated.
{¶ 3} Marc Sundstrom was a Union member who was employed by SORTA as a bus repairperson, which was classified as a “safety sensitive” position. Sundstrom‘s position required him to have a commercial driver‘s license in order to test drive the buses that he repaired. On February 10, 1997, Sundstrom was subjected to a random drug test pursuant to SORTA‘s drug policy. Sundstrom tested positive for metabolites in his blood and was summarily discharged pursuant to SORTA‘s zero tolerance policy.
{¶ 4} The Union filed a grievance on Sundstrom‘s behalf, which was referred to arbitration pursuant to the CBA. The arbitration panel sustained the grievance in part and denied it in part. The panel found that the decision to discharge Sundstrom was based solely upon his violation of the drug policy. The panel found that SORTA‘s drug policy was facially valid and that testing positive was a dischargeable offense. However, the panel determined that the drug policy‘s automatic discharge sanction for testing positive conflicted with, and therefore violated, the “sufficient cause” discharge standard set out in the CBA. After considering the length of Sundstrom‘s service and his lack of any prior disciplinary problems, the panel found that Sundstrom had been discharged without sufficient cause. Accordingly, the panel decided that Sundstrom should be reinstated. However, the panel denied Sundstrom back pay, required him to complete a drug-
{¶ 5} SORTA appealed the arbitration award to the Court of Common Pleas of Hamilton County. The court confirmed the award, holding that it drew its essence from the CBA and was not unlawful, arbitrary, or capricious.
{¶ 6} SORTA appealed to the Hamilton County Court of Appeals. The court of appeals reversed the arbitration award, holding that “reinstating Sundstrom, a safety-sensitive employee who tested positive for marijuana while on the job, would violate the explicit, well-defined and dominant public policy to ensure the safety of the passengers of common carriers and the general public by suppressing illegal drug use among transportation employees.”
{¶ 7} This cause is now before this court pursuant to the allowance of a discretionary appeal.
{¶ 8} The case presents two issues before this court. The first is whether the award should be vacated because it fails to draw its essence from the CBA. The second is whether the award is against public policy and should be vacated as being unlawful.
The Award Draws its Essence from the CBA and is not Arbitrary or Capricious
{¶ 9} Public policy favors arbitration. Brennan v. Brennan (1955), 164 Ohio St. 29, 57 O.O. 71, 128 N.E.2d 89, paragraph one of the syllabus. “The whole purpose of arbitration would be undermined if courts had broad authority to vacate an arbitrator‘s award.” Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Edn. Assn. (1986), 22 Ohio St.3d 80, 83-84, 22 OBR 95, 98, 488 N.E.2d 872, 875. “Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the
{¶ 10} SORTA states that it adopted its drug policy pursuant to Section 26(a) of the CBA. SORTA argues that the award, that reinstated Sundstrom, did not draw its essence from the CBA because it ignored the automatic discharge sanction required by SORTA‘s drug policy. We disagree.
{¶ 11} We find that any sanction for a violation of a rule adopted by SORTA pursuant to Section 26(a) of the CBA was subject to the “sufficient cause” standard for dismissing employees found in Section 3(b) of the CBA. See Local No. 7, United Food & Commercial Workers Internatl. Union v. King Soopers, Inc. (C.A.10, 2000), 222 F.3d 1223. In King Soopers, the union and King Soopers negotiated a CBA that provided that no union employee would be terminated without “good and sufficient cause.” Id. at 1225. However, King Soopers also unilaterally adopted a “no call/no show” policy that provided that three unexcused
{¶ 12} The union filed a grievance protesting Parbhu‘s dismissal. The arbitrator issued an award that reinstated Parbhu, finding that while it was possible that a violation of the no-call/no-show policy could be grounds for immediate termination, Parbhu‘s discharge did not meet the test of just cause.
{¶ 13} King Soopers appealed, and the appellate court affirmed the arbitrator‘s award that reinstated Parbhu, reasoning that “[a]lthough the CBA negotiated between King Soopers and the Union gives King Soopers ‘the right * * * to make necessary reasonable rules and regulations for the conduct of business, providing that said rules and regulations are not in conflict with the terms of [the CBA] in any way,’ * * *, the right to make such rules is not the right to equate the violation of such rules with ‘good and sufficient cause’ for termination. To hold otherwise would be to allow King Soopers to unilaterally define the meaning of ‘good and sufficient cause,’ a right which was not contemplated by the CBA and for which King Soopers must negotiate with the Union.” (Emphasis added.) Id. at 1227.
{¶ 14} We agree with, and apply, the reasoning of King Soopers to this case. While SORTA‘s drug policy may be facially valid, we find that SORTA did not have the right to unilaterally adopt automatic termination without possibility of reinstatement as a sanction for testing positive, because such a sanction conflicts with the “sufficient cause” requirement for dismissal found in Section 3(b) of the CBA. Just as the court noted in King Soopers, allowing SORTA to enforce automatic termination would allow an employer to unilaterally adopt a sanction that conflicts with the sufficient-cause requirement for dismissal that was negotiated into the CBA, thereby undermining the integrity of the entire collective bargaining
{¶ 15} Section 26(a) of the CBA, under which SORTA contends that it adopted its drug policy, further supports our conclusion. It states that SORTA “will provide that there is no conflict between orders and rules [adopted pursuant to Section 26] and the provisions of this contract.” (Emphasis added.) Thus, by adopting immediate dismissal as a sanction for violating the drug policy, SORTA created a conflict with Section 3(b) of the CBA, which allows employees to be terminated only for sufficient cause.
{¶ 16} Therefore, we find that the automatic dismissal sanction under SORTA‘s drug prevention policy violates the sufficient-cause requirement for dismissal of the CBA. Thus, because the panel‘s award reinstating Sundstrom was based on the sufficient-cause standard set out in the CBA, the award drew its essence from the CBA and was not arbitrary or capricious.1
The Award is Lawful because it is not against Public Policy
{¶ 17} SORTA further contends, and the appellate court held, that even if the award draws its essence from the CBA, public policy against drug use requires mandatory termination of a “safety sensitive” employee who fails a drug test. We must examine whether there is such a public policy that would render the award reinstating Sundstrom unenforceable.
{¶ 18} In W.R. Grace & Co. v. Local 759, Internatl. Union of Rubber, Cork, Linoleum & Plastic Workers of Am. (1983), 461 U.S. 757, 766, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298, 307, the United States Supreme Court held if the
{¶ 19} SORTA argues that the General Assembly has codified a public policy against use of alcohol or controlled substances by transportation employees in
{¶ 21} Consistent with a common carrier‘s duty to exercise the highest degree of care for its passengers, and pursuant to its authority to regulate motor transportation companies under
{¶ 22} Because Ohio law relies on and incorporates federal laws and regulations, in particular
{¶ 23} On appeal to the Supreme Court, Eastern argued that public policy against drug use, as reflected in the federal law and regulations that require drug testing, rendered the arbitration award reinstating Smith unenforceable. The court determined that “the question to be answered is not whether Smith‘s drug use itself violates public policy, but whether the agreement to reinstate him does so.” Eastern, 531 U.S. at 67, 121 S.Ct. at 467, 148 L.Ed.2d at 361.
{¶ 24} In determining if there was a public policy to render the award unenforceable, the court examined the Omnibus Transportation Employee Testing Act of 1991,
{¶ 25} Because Ohio has adopted
{¶ 26} The arbitration award herein punished Sundstrom by denying him back pay. It also required Sundstrom to attend a rehabilitation program, to pass a return-to-work drug test, and to take unannounced drug tests upon reinstatement. Failure to complete rehabilitation or a positive test result would result in Sundstrom‘s immediate discharge. Considering the length of Sundstrom‘s employment and his lack of disciplinary problems, we find that the terms for reinstatement were reasonable in that they imposed punishment and provided safeguards to prevent recidivism.
{¶ 27} Thus, we hold that the award reinstating Sundstrom was not against public policy, and thus was lawful.2
{¶ 28} This holding does not imply that drug use may never be a basis for automatic discharge. An employee‘s overall disciplinary record, the egregiousness of the infraction, problems with recidivism, or other issues could constitute
Conclusion
{¶ 29} We hold that the arbitration award reinstating Sundstrom drew its essence from the CBA and was not unlawful, arbitrary, or capricious. Accordingly, we reverse the judgment of the court of appeals and order that the arbitration award be reinstated.
Judgment reversed.
MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs in judgment.
COOK, J., dissents.
SOUTHWEST OHIO REGIONAL TRANSIT AUTHORITY, APPELLEE, v. AMALGAMATED TRANSIT UNION, LOCAL 627, APPELLANT.
No. 00-21
Supreme Court of Ohio
Decided March 7, 2001.
{¶ 30} Like the majority, I disagree with the court of appeals’ holding that reinstating Sundstrom would violate an explicit, well-defined, and dominant public policy. I would, nonetheless, affirm the court of appeals’ judgment because I agree with the Southwest Ohio Regional Transit Authority (“SORTA“) that the panel‘s award did not draw its essence from the CBA.
{¶ 31} On the one hand, the majority concedes that SORTA‘s drug policy may be “facially valid.” On the other hand, the majority finds that the policy “violates the sufficient-cause requirement for dismissal of the CBA.” But neither the majority nor the panel can have it both ways. The arbitration panel in this case found it difficult to determine whether the union had ever actually challenged the facial validity of the drug policy. The panel concluded, however, that to the extent the union did challenge the facial validity of the rule, “the Authority‘s Policy is facially valid.” This valid rule was thereby “incorporated into the collective bargaining agreement and [had] the force of contract language.” Mountaineer Gas Co. v. Oil, Chem. & Atomic Workers Internatl. Union (C.A.4, 1996), 76 F.3d 606,
{¶ 32} But like the arbitrator in Mountaineer Gas, supra, the arbitration panel here “ignored the unambiguous language of the Drug Policy and fashioned a modified penalty that appealed to [its] own notions of right and wrong. * * * By fashioning [a] new remedy and infusing [its] personal feelings and sense of fairness into the award, the [panel] created an award that failed to draw its essence from the CBA.” Id., 76 F.3d at 610. As the United States Supreme Court has noted, though arbitrators may certainly interpret CBA provisions, they cannot disregard them, and “[do] not sit to dispense [their] own brand of industrial justice.” United Steelworkers of Am. v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424, 1428. The Sixth Circuit has agreed, and vacated an arbitrator‘s award of reinstatement when the CBA provided that an employee could be “discharged without [redress] if proven guilty of * * * insubordination.” Morgan Serv., Inc. v. Local 323, Chicago & Cent. States Joint Bd., Amalgamated Clothing & Textile Workers Union, AFL-CIO (C.A.6, 1984), 724 F.2d 1217, 1219.
{¶ 33} The majority describes the United States Supreme Court‘s recent Eastern Associated Coal Corp. decision as “an almost identical case.” Eastern Associated Coal Corp. v. United Mine Workers of Am., Dist. 17 (2000), 531 U.S. 57, 121 S.Ct. 462, 148 L.Ed.2d 354. But Eastern differs markedly from the case at bar. In Eastern, the Supreme Court expressly assumed that the CBA at issue provided for reinstatement, and also specifically noted that the employer had never claimed that the arbitrator acted outside the scope of his contractually delegated authority. Id. at 61-62, 121 S.Ct. at 466-467, 148 L.Ed.2d at 360-361. Unlike the employer in Eastern, however, SORTA has consistently claimed that the panel acted outside the scope of its contractually delegated authority. SORTA did so in
Dinsmore & Shohl LLP, Charles M. Roesch and Robert J. Reid, for appellee.
Kircher, Robinson & Welch and James B. Robinson; Jubelirer, Pass & Intrieri, P.C., and Ernest B. Orsatti, for appellant.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, urging reversal for amicus curiae Ohio AFL-CIO.
Baker & Hostetler LLP, David C. Levine, Daniel J. Guttman and Stephen D. Brown, urging affirmance for amicus curiae Ohio Public Transit Association.