To be argued by: Beth A. Bourassa, Esq.
Time Requested: 20 minutes
Appellate Division Docket No. 512137
Saratoga County Index No. 2010-2883
COURT OF APPEALS
State of New York
In the Matter of the Application of
SHENENDEHOWA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION,
Appellant,
For an Order and Judgment Vacating the Determination
of An Arbitrator Pursuant to C.P.L.R. 7511
-against-
CIVIL SERVICE EMPLOYEES ASSOCIATION, INC.,
LOCAL 1000, AFSCME, AFL-CIO, LOCAL 864
and CYNTHIA DIDOMENICANTONIO,
Respondents.
BRIEF OF APPELLANT
SHENENDEHOWA CENTRAL SCHOOL DISTRICT
BOARD OF EDUCATION
WHITEMAN OSTERMAN & HANNA LLP
Attorneys for Appellant
Beth A. Bourassa, Esq., Of Counsel
One Commerce Plaza, 19th Floor
Albany, New York 12260
(518) 487-7617 – phone
(518) 487-7777 – fax
Submitted: February 27, 2012
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................... i
JURISDICTIONAL STATEMENT ..........................................................................1
QUESTIONS PRESENTED......................................................................................2
PRELIMINARY STATEMENT................................................................................4
STATEMENT OF FACTS ........................................................................................7
STATEMENT OF THE CASE................................................................................15
ARGUMENT ...........................................................................................................18
POINT I THE ARBITRATOR EXCEEDED HIS POWER WHEN
HE IRRATIONALLY CONCLUDED THAT THE
DISTRICT VIOLATED THE AGREEMENT BY
EXERCISING ITS OPTION TO TERMINATE MS.
DIDOMENICANTONIO. ...................................................................18
POINT II THE ARBITRATOR EXCEEDED HIS POWER BY
IRRATIONALLY IMPOSING A “JUST CAUSE”
STANDARD, THUS REWRITING THE TERMS
OF THE AGREEMENT......................................................................22
POINT III AFTER REJECTING ALL OF MS. DIDOMENICANTONIO’S
EXCUSES FOR HER POSITIVE DRUG TEST, THE
ARBITRATOR IRRATIONALLY AND WITHOUT
AUTHORITY ORDERED HER REINSTATEMENT.......................28
POINT IV PUBLIC POLICY PRECLUDES REINSTATEMENT OF
MS. DIDOMENICANTONIO, WHO TESTED POSITIVE
FOR MARIJUANA SHORTLY AFTER SHE FINISHED
DRIVING CHILDREN TO SCHOOL................................................33
CONCLUSION........................................................................................................39
- ii -
APPENDIX
Shenedehowa Central School District v. CSEA Local 1000 and
S.B., Arbitration Opinion and Award, PERB Case No. A95-349
(May 13, 1995)
- i -
TABLE OF AUTHORITIES
Federal Cases
187 Concourse Assoc. v Fishman, 399 F3d 524, 527 [2d Cir 2005] .................19, 31
Eastern Associated Coal Corp. v United Mine Workers of America,
Dist. 17, 531 US 57 [2000].......................................................................19, 22, 33
Mehlman ex rel. Mehlman v Diamond Sparklers, Inc.,
2002 WL 32096585 [ED NY 2002] .....................................................................36
State Cases
Board of Educ. of East Hampton Union Free School Dist. v Yusko,
269 AD2d 445 [2d Dept 2000] .............................................................................35
City of Canandaigua v Canandaigua Police Officers Ass’n.,
174 AD2d 1048 [4th Dept 1991] ..........................................................................25
City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917 [2011] .........37, 38
Ernest v Red Cr. Cent. School Dist., 93 NY2d 664 [1999]......................................36
Holsapple v Arlington Cent. School Dist., 136 AD2d 639 [2d Dept 1988],
lv. denied 71 NY2d 805 [1988] ............................................................................29
Matter of Albany County Sherriffs Local 775 of N.Y. State Law Enforcement
Officers Union, Dist. Council 82, AFSCME, AFLCIO (County of Albany),
27 AD3d 979 [3d Dept 2006] ...............................................................................22
Matter of Binghamton City School Dist. (Peacock), 33 AD3d 1074
[3d Dept 2006], lv. denied 8 NY3d 840 [2007] ........................................34, 35, 37
Matter of Buffalo Council of Supervisors & Adm’rs, Local No. 10,
Am. Fedn. of School Adm’rs (Board of Educ., City School Dist.
of Buffalo), 75 AD3d 1067 [4th Dept 2010]...................................................19, 20
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Matter of Finnin v Bratton, 236 AD2d 257 [1st Dept 1997],
lv. denied 90 NY2d 811 [1997] ............................................................................29
Matter of Kowaleski (New York State Dept. of Correctional Servs.),
16 NY3d 85 [2010]...............................................................................................18
Matter of New York City Tr. Auth. v Transport Workers Union of Am.,
Local 100, AFL-CIO, 99 NY2d 1 [2002] .............................................................33
Matter of New York State Law Enforcement Officers Union,
Dist. Council 82, AFSCME, AFL-CIO (State of New York),
34 AD3d 1161 [3d Dept 2006] .............................................................................24
Matter of O'Neill v City of New York, 52 AD3d 258 [1st Dept 2008]……………..29
Matter of Riverbay Corp. (Local 32-E, S.E.I.V., AFL-CIO),
91 AD2d 509 [1st Dept 1982].........................................................................24, 25
Matter of Watt (East Greenbush Cent. School Dist.),
85 AD3d 1357 [3d Dept 2011] .......................................................................34, 35
Nassau Health Care Corp. v Civil Serv. Empl. Assn., Inc.,
20 AD3d 401 [2d Dept 2005] ...............................................................................25
New York City Tr. Auth. v Transport Workers’ Union of Am.,
Local 100, AFL-CIO, 306 AD2d 486 [2d Dept 2003],
lv. denied 1 NY3d 510 [2004] ..............................................................................25
Pratt v Robinson, 39 NY2d 554 [1976] ...................................................................36
Trotta v Ward, 77 NY2d 827 [1991]........................................................................29
Will v Frontier Cent. School Dist. Bd. of Educ., 97 NY2d 690 [2002]....................36
Federal Statutes
49 USC §31306 et seq ................................................................................................7
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State Statutes
CPLR 5601 (a) ...........................................................................................................1
CPLR 7511...............................................................................................................35
CPLR 7511 (b) (1) (iii) .................................................................................... passim
N.Y. Civil Service Law § 75 ....................................................................................25
N.Y. Education Law § 3020-a............................................................................35, 36
Federal Regulations
49 CFR Part 382.........................................................................................................7
49 CFR Part 40.......................................................................................................7, 9
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JURISDICTIONAL STATEMENT
This Court has jurisdiction to hear this appeal and review the questions
presented pursuant to CPLR 5601 (a). The Appellant, Shenendehowa Central School
District Board of Education (the “District”) appeals as of right, in a proceeding
originating in the Supreme Court, Saratoga County, from a final order of the Appellate
Division, Third Department, in which Justices Kavanagh and Malone dissented in
favor of the District. Each of the questions presented below has been raised by the
District throughout this proceeding, and has been preserved for review by this Court
(Rec. 52-53).
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QUESTIONS PRESENTED
1. When a collective bargaining agreement authorizes either suspension or
discharge without prior progressive discipline for a school bus driver who fails a drug
test, should an arbitration award which found that the school district employer violated
the agreement when it chose to discharge the school bus driver be vacated pursuant to
CPLR 7511 (b) (1) (iii)?
The court below concluded that the school district employer “had the option” to
terminate the school bus driver for a positive drug test, but agreed with the arbitrator
that the school district employer violated the agreement when it exercised that option.
(Rec. 13). Justices Michael Kavanagh and Bernard J. Malone, Jr., dissenting, found
that because the school district employer “had the option” to terminate, the school
district employer could not have violated the agreement “when it chose that option and
terminated” the school bus driver (Rec. 15-16).
2. Did the arbitrator irrationally re-write the terms of the parties’ collective
bargaining agreement when he imposed a “just cause” standard for discipline of a
school bus driver who tested positive for marijuana, when a “just cause” standard does
not appear in, and is inconsistent with, the terms of the agreement?
The court below did not expressly decide this question. Justices Kavanagh and
Malone, dissenting, concluded that the arbitrator made a “material change in the
parties’ agreement” by requiring “just cause” for the school bus driver’s termination
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(Rec. 16).
3. After the arbitrator resolved all factual issues against a school bus driver,
with respect to her positive drug test result, did the arbitrator lack authority under both
the terms of the collective bargaining agreement and the issues jointly submitted by the
parties to the arbitrator for resolution, to reinstate the school bus driver?
The court below found that the arbitrator had the authority to order reinstatement
of the bus driver, who tested positive for marijuana shortly after she finished driving
children to school (Rec. 14). Justices Kavanagh and Malone, dissenting, concluded
that the arbitrator could not rationally find that the school district employer violated the
agreement when it exercised its contractual right to terminate the school bus driver, and
that the arbitrator thus lacked authority to proceed to the question of remedy and order
her reinstatement (Rec. 15-16).
4. Does an arbitration award directing reinstatement of a school bus driver
who tested positive for marijuana shortly after she finished driving children to school
violate public policy?
The court below held that the reinstatement award did not violate public policy
(Rec. 14-15). Justices Kavanagh and Malone, dissenting, found that “sound public
policy considerations” supported the school district employer’s “legitimate concerns
that school bus drivers not be substance abusers,” and concluded that the reinstatement
award “violates sound public policy” (Rec. 16).
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PRELIMINARY STATEMENT
Throughout this proceeding and the underlying arbitration hearing, Respondents
Cynthia DiDomenicantonio and her union, the Civil Service Employees Association
(“CSEA”), have sought reinstatement of Ms. DiDomenicantonio to her former position
as a school bus driver for the Shenendehowa Central School District, without regard to
the potential danger that her re-employment may pose to school children in the District.
Ms. DiDomenicantonio tested positive for marijuana in a federally-mandated, random
drug test conducted shortly after she finished driving children to school. Ms.
DiDomenicantonio initially blamed her teenage daughter’s second-hand marijuana
smoke for her positive drug test result, and later claimed that she had unwittingly
ingested her daughter’s marijuana-laced food. Ms. DiDomenicantonio also challenged
a minor procedural irregularity in her urine specimen collection process. The collective
bargaining agreement between the District and CSEA (the “Agreement” or “CBA”)
permits suspension or discharge of a bus driver based on a positive drug or alcohol test
result, without prior progressive discipline. After conducting an investigation and
providing Ms. DiDomenicantonio and her CSEA representatives an opportunity to be
heard, the District exercised its contractual right to discharge Ms. DiDomenicantonio.
CSEA grieved Ms. DiDomenicantonio’s termination in an arbitration hearing.
The Arbitrator rejected each of Ms. DiDomenicantonio’s alleged excuses for her
positive drug test result. The Arbitrator then irrationally and without authority
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reinstated Ms. DiDomenicantonio, based on his conclusion that because the pertinent
provision of the Agreement did not mandate termination for a positive drug test result,
the Agreement did not permit Ms. DiDomenicantonio’s termination.
The Arbitrator further imposed a “just cause” standard for Ms.
DiDomenicantonio’s termination, even though it was undisputed between the parties at
the arbitration hearing that no just cause standard is included in the Agreement. The
Arbitrator conceded that his imposition of the just cause standard was not derived from
the terms of the parties’ agreement, and was instead based on his personal belief that
the “just cause standard gives just consideration to the rights and interests of the
parties.” The Arbitrator thus exceeded his authority and irrationally re-wrote the
Agreement. Neither the terms of the Agreement nor the stipulated issues presented to
the Arbitrator authorized him to reinstate Ms. DiDomenicantonio after he had rejected
each of her alleged excuses for her positive drug test result.
Moreover, the Arbitrator’s Award violates public policy, in that it fails to
adequately protect school children from the manifest harm caused by the continued
employment of a school bus driver who uses illegal drugs. The District should not be
required to put Ms. DiDomenicantonio back behind the wheel of a school bus. The risk
is too great to warrant a second chance.
The District petitioned the Supreme Court, Saratoga County, to vacate the
Arbitrator’s Award pursuant to CPLR 7511 (b) (1) (iii), to the extent that it ordered
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reinstatement of Ms. DiDomenicantonio. The Supreme Court granted the District’s
petition and vacated the Arbitrator’s reinstatement Award.
CSEA and Ms. DiDomenicantonio appealed to the Appellate Division, Third
Department. By a Memorandum and Order dated December 1, 2011, a three-justice
majority of the Appellate Division, Third Department, reversed. The majority held that
the Supreme Court should have denied the District’s application to vacate the Award,
and granted the Respondents’ counterclaim to confirm the Award.
Justices Kavanagh and Malone, dissenting, concluded that because the District
clearly “had the option” under the terms of the Agreement to terminate Ms.
DiDomenicantonio for failing a drug test, it could not have violated the Agreement
when it chose to do so, and that the Arbitrator thus lacked authority to proceed to the
question of remedy. Justices Kavanagh and Malone further concluded that the
Arbitrator had improperly made “a material change in the terms of the parties’
agreement” by requiring “just cause” for Ms. DiDomenicantonio’s termination, and
that reinstatement of a school bus driver who is an illegal substance abuser violates
public policy.
The District respectfully appeals to this Court. The Decision of the Appellate
Division, Third Department should be reversed, and the Arbitrator’s reinstatement
Award should be vacated pursuant to CPLR 7511 (b) (1) (iii) for the reasons stated
both herein and in the dissenting opinion of Justices Kavanagh and Malone.
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STATEMENT OF FACTS
Background
The federal Omnibus Transportation Employee Testing Act of 1991, 49 USC
§31306 et seq., and implementing United States Department of Transportation
(“USDOT”) regulations, set forth at 49 CFR Parts 40 and 382, require periodic random
drug and alcohol testing of all commercial driver’s license holders who perform safety-
sensitive functions, including school bus drivers. In accordance with the USDOT
regulations, the District has adopted and implemented a “Drug and Alcohol Testing
Policy for Employees in Safety-Sensitive Positions,” which applies to school bus
drivers (Rec. 237-239). Copies of the policy and the USDOT regulations are
distributed by the District to bus drivers in its employ (Rec. 241, 446-449). Bus drivers
are explicitly warned that they may be discharged for a positive drug or alcohol test
result (Rec. 239, 294).
Bus drivers employed by the District have long been represented by CSEA, for
purposes of collective bargaining. Prior to July 1, 1996, Article IV, §47(C)(4) of the
collective bargaining agreements between CSEA and the District permitted discharge
without prior progressive discipline whenever an “employee’s conduct create[d] a
danger to the health, safety, or welfare of staff, students, and/or the general public, or
create[d] a danger to property” (Rec. 178, 188). Significantly, the pre-July 1, 1996
collective bargaining agreements did not include a specific agreement that a positive
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drug or alcohol test result, standing alone, created such a danger (Rec. 471-473).
In June 1995, a bus driver employed by the District, S.B., tested positive for
marijuana and was subsequently terminated by the District. A contract grievance and
arbitration ensued. The arbitrator’s decision reinstated S.B., based on the terms of the
then-applicable June 30, 1993-July 1, 1996 agreement. The arbitrator found that the
terms of that agreement required progressive discipline prior to termination for a
positive drug test (Appdx. at 10-11).
In the wake of that decision, the District bargained with CSEA for a change to
the terms of Article IV, §47(C)(4) of the Agreement. Since July 1, 1996, Article IV,
§47(C)(4) of the Agreement between CSEA and the District provides, in pertinent part,
that “a positive result in any required drug or alcohol test is considered such a danger
to health, safety or welfare of staff and/or the general public or creates a danger to
property” that “suspension without pay or discharge may be invoked” without prior
progressive discipline (Rec. 71, 94, 469-471).
The District has no tolerance for illegal drug use by its bus drivers. No bus
driver who has tested positive in a random drug or alcohol test conducted on behalf of
the District is currently employed by the District. The District is gravely concerned
about the unreasonable risk to safety posed by entrusting such a driver with the safety
of school children riding a school bus, and, since the 1996 amendment to Article IV,
§47(C)(4), has discharged or secured the forced resignation of each driver who has
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failed a required drug or alcohol test (Rec. 436-437, 469).
The District’s consistent exercise of its option to terminate the employment of
bus drivers who test positive for drugs or alcohol is in no way inconsistent with certain
“return to duty” provisions in its policies and procedures regarding drug and alcohol
testing (Rec. 237-239, 295-296). These policies and procedures comport with the
USDOT regulations (49 CFR Part 40, subpart O) and merely contemplate the
possibility that termination might not invariably result in a case when (unlike the
present case) the employee’s positive drug or alcohol test result was mitigated. It is
precisely to avoid unduly harsh consequences that the negotiated terms of Article IV,
§47(C)(4) permit, but do not mandate – termination in every case.
Ms. DiDomenicantonio’s Positive Drug Test and Termination
Ms. DiDomenicantonio was first employed as a bus driver by the District on
October 3, 2001. On October 21, 2009, Ms. DiDomenicantonio was selected at
random to participate in a split sample urinalysis drug screening pursuant to the
USDOT regulations and the District’s policy. Ms. DiDomenicantonio’s drug test was
performed shortly after she finished driving children to school on her morning bus run
(Rec. 333, 426, 430, 500-501). Eastern Medical Support (“EMS”) conducted the drug
test on behalf of the District (Rec. 360-366).
On October 22, 2009, the Medical Review Officer employed by EMS, Dr.
Vincent Luvera, notified Ms. DiDomenicantonio that she had tested positive for
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marijuana (Rec. 326-331, 366-367). At that time, Ms. DiDomenicantonio stated that
she was exposed to her teenage daughter’s second-hand marijuana smoke. Dr. Luvera
advised Ms. DiDomenicantonio that second-hand marijuana smoke is not a medically
acceptable excuse for a positive drug test result (Rec. 329, 367-368, 503).
On October 23, 2009, Ms. DiDomenicantonio informed representatives of the
District that she had tested positive for marijuana (Rec. 434-435). Ms.
DiDomenicantonio then stated that she may have been exposed to her daughter’s
second-hand marijuana smoke or perhaps had unwittingly ingested her daughter’s
marijuana-laced food (Rec. 435). Ms. DiDomenicantonio was immediately placed on
paid administrative leave pending an investigation (Rec. 435-437, 458-459). By a
letter dated October 28, 2009, Dr. Michael Dutkowsky, the District’s Assistant
Superintendent of Human Resources, advised Ms. DiDomenicantonio that based on her
positive drug test result, she was suspended without pay, and may be subject to
termination at the Board of Education meeting scheduled for November 10, 2009 (Rec.
333, 466-467).
At Ms. DiDomenicantonio’s request, her second split sample urine specimen
was tested by EMS (Rec. 436, 504). On November 1, 2009, the result of the second
split test was positive (Rec. 329-330, 468-469).
On November 6, 2009, Ms. DiDomenicantonio and CSEA met with District
representatives to discuss her positive drug test result (Rec. 467). At that meeting,
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CSEA contended that during the random drug test, Ms. DiDomenicantonio was asked
to sign and date the specimen label before it was affixed to the specimen vial. The
chain of custody form instructs that the label should be affixed to the specimen vial
prior to the donor signing and dating it (Rec. 460-461, 467). CSEA further contended
that Ms. DiDomenicantonio may have either inhaled her daughter’s second-hand
marijuana smoke, or unknowingly ingested her daughter’s food that was “spiked” with
marijuana (Rec. 460-461, 467-468).
Dr. Dutkowsky considered the excuses that Ms. DiDomenicantonio proffered at
the meeting, as well as the positive test result of her second split sample. Pursuant to
Article IV, §47(C)(4) of the Agreement, Dr. Dutkowsky recommended termination of
Ms. DiDomenicantonio (Rec. 470-471). On November 10, 2009, the Board of
Education unanimously voted to terminate Ms. DiDomenicantonio’s employment as a
school bus driver (Rec. 335, 468).
The Arbitration Hearing and Award
CSEA demanded arbitration of a grievance arising out of Ms.
DiDomenicantonio’s termination (Rec. 337-338). Under the arbitration clause of the
Agreement, in reviewing any contract grievance, the arbitrator’s power is confined to
“the interpretation or meaning of the Agreement” (Rec. 103). At a hearing on March
12, 2010, the parties agreed to submit the following questions or issues to the
Arbitrator: “Did the District violate Article IV of the Agreement when it terminated the
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grievant? If so, what shall the remedy be?” (Rec. 59, 355). Article IV includes detailed
disciplinary standards and procedures set forth in §47 of the Agreement (Rec. 90-96).
Generally, §47 provides that “the parties subscribe to the concept of progressive
discipline, except for the most serious offenses,” and that an employee may not be
disciplined or discharged “except for acts of incompetency, insubordination, or
misconduct” (Rec. 93).
More particularly, Article IV, §47(C)(4), as amended in 1996, provides that:
Suspension 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 or creates a danger
to property. A positive result in any required drug or alcohol
test is considered such a danger to health, safety or welfare
of staff and/or the general public or creates a danger to
property (Rec. 94).
A positive drug or alcohol test is thus a “most serious offense,” which obviates the
need for prior progressive discipline prior to suspension or discharge.
At the hearing, the Arbitrator inquired as to whether the Agreement has a “just
cause” provision with respect to discharge, and was advised by the District that it does
not (Rec. 352). CSEA did not then disagree. Instead, CSEA pointed out that the
Agreement required compliance with certain procedural due process, prior to and after
termination, and required proof that the employee was “guilty of misconduct,
incompetency or insubordination” (Rec. 353). CSEA further contended that any such
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misconduct must be “intentional” (Rec. 480).
CSEA stipulated to Ms. DiDomenicantonio’s positive drug test result (Rec.
367), but contended that Ms. DiDomenicantonio did not intentionally use marijuana.
CSEA continued to blame Ms. DiDomenicantonio’s positive drug test result on: i) a
minor irregularity in the procedure used to label her urine specimen; ii) her daughter’s
second-hand marijuana smoke; or iii) her unwitting ingestion of her daughter’s
marijuana-laced food (Rec. 375-384, 402-404, 484-495, 499, 503, 506-507, 511-515).
Following the hearing, the Arbitrator rendered his Opinion and Award on May
25, 2010. The Arbitrator specifically rejected each of Ms. DiDomenicantonio’s alleged
excuses for her positive drug test result, and concluded that “the evidence on which
these assertions are based was not sufficient or conclusive enough to invalidate or set
aside the positive drug test” (Rec. 64). First, the Arbitrator rejected Ms.
DiDomenicantonio’s contention that the drug test result was invalid because she was
asked to sign and date the specimen label before it was affixed to the specimen vial,
contrary to applicable protocol (Rec. 64-65). The Arbitrator concluded that this minor
procedural defect did not undermine the integrity of Ms. DiDomenicantonio’s
specimen, and did not “raise a reasonable concern that her specimen was mislabeled
and confused with other specimens” (Rec. 65-66). Next, the Arbitrator rejected as
speculative and unpersuasive Ms. DiDomenicantonio’s evidence that her positive drug
test result could have been caused by either “second hand smoke influence” or her
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alleged unwitting ingestion of her daughter’s marijuana-laced food (Rec. 66). The
only remaining explanation for Ms. DiDomenicantonio’s positive drug test result was
misconduct – her intentional use of marijuana.
The Arbitrator nevertheless concluded that the District violated Article IV of the
Agreement when it terminated Ms. DiDomenicantonio, even though Article IV,
§47(C)(4) permitted termination without prior progressive discipline based on the
Arbitrator’s findings of fact that Ms. DiDomenicantonio tested positive for marijuana
(Rec. 56, 64). The Arbitrator found that because Article IV, §47(C)(4) of the
Agreement did not “mandate” termination for a positive drug test result, it did not
permit Ms. DiDomenicantonio’s termination for her positive drug test result (Rec. 66-
67).
The Arbitrator applied a “just cause” standard in reviewing Ms.
DiDomenicantonio’s termination, based on his belief that “the just cause standard gives
consideration to the rights and interests of all concerned parties which explains why it
is the standard set forth in the overwhelming number of collective bargaining
agreements” (Rec. 68). “Just cause” is not the standard for discipline or discharge in
this Agreement, and neither party asserted, at the hearing, that a just cause standard
was applicable (Rec. 93-95, 352-353). The Arbitrator thus used a noncontractual
standard of review, and one which is inherently inconsistent with the negotiated terms
of Article IV, §47(C)(4) of the Agreement. Based on improper consideration of Ms.
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DiDomenicantonio’s prior satisfactory work record, and the absence of any prior
progressive discipline, the Arbitrator ordered that Ms. DiDomenicantonio be reinstated
to her position as a school bus driver (Rec. 56, 69).
STATEMENT OF THE CASE
By a petition dated July 21, 2010, the District commenced this proceeding in the
Supreme Court, Saratoga County, for an Order and Judgment pursuant to CPLR 7511
(b) (1) (iii), vacating the Arbitrator’s reinstatement Award (Rec. 42-54). CSEA and
Ms. DiDomenicantonio requested confirmation of the Award (Rec. 38).
By a Decision, Order and Judgment dated November 8, 2011, the Honorable
Thomas D. Nolan, Jr. granted the District’s petition and vacated the Arbitrator’s Award
reinstating Ms. DiDomenicantonio (Rec. 19-23). Justice Nolan concluded that:
the construction the [A]rbitrator ascribed to §47(C)(4) is
simply not reasonable. That section affords the District the
power to suspend or terminate an employee whose conduct
“creates a danger to the . . . safety or welfare of . . .
students,” and further denominates that a positive drug test
is considered such a “danger.”
To be sure, the District was not compelled to terminate an
employee who failed a drug test but it had the option to do
so under §47(C)(4). The [A]rbitrator, by ruling to the
contrary, in effect made a new contract for the parties as
opposed to interpreting it and thus clearly exceeded his
power (Rec. 10 [internal citation omitted]).
Justice Nolan modified the Award to direct the termination of Ms. DiDomenicantonio
(id.).
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Respondents then appealed to the Appellate Division, Third Department (Rec.
24-25). By a Memorandum and Order dated December 1, 2011, a three-justice majority
of the court reversed Justice Nolan’s decision (Rec. 10-17). The majority agreed that a
positive drug test result was a “serious offense,” thus dispensing with the need for any
prior progressive discipline (Rec. 13). The majority also did “not dispute” that the
District “had the option to terminate” Ms. DiDomenicantonio (id.). The majority
nevertheless concluded that the District “was required to consider the disciplinary
options laid out in the CBA,” and agreed with the Arbitrator that the District violated
the Agreement “by refusing to exercise any discretion in regard to the punishment to be
imposed” (id.). According to the majority, the District could not invariably choose
discharge or have “zero tolerance” for bus drivers who use illegal drugs (Rec. 12-14).
The majority further held that the reinstatement of an illegal drug user to her position
as a school bus driver “was not against public policy” (Rec. 14-15).
A dissent authored by the Honorable Michael Kavanagh and joined by the
Honorable Bernard J. Malone, Jr., concluded that:
It is difficult to understand how, on the one hand, the
majority can concede that [the District] had the option under
the . . . CBA[ ] to discharge [Ms.] DiDomenicantonio . . .
for failing a drug test, and on the other, conclude that [the
District] violated the CBA when it chose that option and
terminated her. These two positions, which are reflected in
the arbitrator’s decision, appear to be incompatible with
each other and do not support any rational analysis of the
parties’ rights under the CBA (Rec. 15).
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In the view of the dissent, the Arbitrator could not have rationally found that the
District violated the Agreement, and thus had no authority to consider the question of
remedy, or to reinstate Ms. DiDomenicantonio (Rec. 15-16).
The dissent further found that the Arbitrator had improperly grafted a “just
cause” standard for termination onto the terms of the Agreement. According to the
dissent:
. . . the arbitrator required, in addition to a positive finding
in the drug test, that other circumstances must exist, which,
when considered in connection with the failed drug test,
amount to “just cause” for [Ms. DiDomenicantonio’s]
termination. Such a requirement does not exist in the CBA
and, by imposing it as a condition to [the District]
exercising its option under the CBA, represents a material
change in the parties’ agreement (Rec. 16).
The dissent also found that reinstatement of a “substance abuser” as a school bus driver
“violates sound public policy” (id.). The District now respectfully appeals to this
Court, and seeks an Order reversing the decision of the Appellate Division, Third
Department, and vacating the Arbitrator’s reinstatement Award.
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ARGUMENT
POINT I
THE ARBITRATOR EXCEEDED HIS
POWER WHEN HE IRRATIONALLY
CONCLUDED THAT THE DISTRICT
VIOLATED THE AGREEMENT BY
EXERCISING ITS OPTION TO
TERMINATE MS.
DIDOMENICANTONIO.
This Court will vacate an arbitration award under CPLR 7511 (b) (1) (iii) on
grounds that the arbitrator has “exceeded his power” when the arbitrator’s “award
violates a strong public policy, is irrational, or clearly exceeds a specifically
enumerated limitation on the arbitrator’s power” (Matter of Kowaleski (New York State
Dept. of Correctional Servs.), 16 NY3d 85, 90 [2010]). In this case, the Arbitrator
exceeded his power when he irrationally concluded that the District violated the
Agreement by terminating Ms. DiDomenicantonio pursuant to Article IV, §47(C)(4) of
the Agreement, which permitted either suspension or termination for a positive drug
test result. The majority decision of the Appellate Division, Third Department, which
confirmed the Arbitrator’s reinstatement Award, should be reversed. The majority
conceded that the District “had the option” to terminate Ms. DiDomenicantonio under
the terms of the Agreement, yet concluded that the District violated the Agreement by
failing to adequately “consider the disciplinary options” of suspension or discharge
(Rec. 13). As the dissent observed, the majority’s position is inherently inconsistent,
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and like the Arbitrator’s decision, does “not support any rational analysis of the parties’
rights under the CBA” (Rec. 15).
The Arbitrator ignored, rather than interpreted, the terms of the Agreement, as
bargained for by the parties, and instead imposed his “own notions of industrial
justice” (Eastern Associated Coal Corp. v United Mine Workers of America, Dist. 17,
531 US 57, 62 [2000]; see also 187 Concourse Assoc. v Fishman, 399 F3d 524, 527
[2d Cir 2005] [observing that “the principal question for the reviewing court is whether
the arbitrator’s award draws its essence from the collective bargaining agreement, since
the arbitrator is not free to merely dispense his own brand of industrial justice”]).
Having concluded that the terms of Article IV, §47(C)(4) of the Agreement permitted
either suspension or discharge for a positive drug test result, the Arbitrator could not
then find that the District violated the Agreement when it exercised its negotiated right
to terminate Ms. DiDomenicantonio because of her positive drug test result.
It is axiomatic that an arbitrator cannot rationally find that an employer violated
the terms of a CBA by taking action that is permitted by the CBA (e.g. Matter of
Buffalo Council of Supervisors & Adm’rs, Local No. 10, Am. Fedn. of School Adm’rs
(Board of Educ., City School Dist. of Buffalo), 75 AD3d 1067 [4th Dept 2010]). In
that case, the school district employer laid off 17 union members based on budgetary
constraints, after the union rejected changes in health insurance (Id. at 1068). The
arbitrator “explicitly recognized” that the employer “had the authority to lay off
- 20 -
employees for economic reasons without violating the CBA” (Id. at 1070). The
arbitrator nevertheless found that the employer violated the CBA by requiring the
union members bear “a disproportionate share of the projected budgetary shortfall,”
and directed the employer to reinstate 8 of the 17 laid-off union members (id.). The
court vacated the arbitrator’s reinstatement award on the grounds that it was irrational
and exceeded his powers (id.).
Similarly, in this case, under Article IV, §47(C)(4) of the Agreement,
“suspension without pay or discharge may be invoked” for a positive drug test result,
without prior progressive discipline (Rec. 95). Every judge who has reviewed the
Arbitrator’s decision to date has agreed that the District “had the option” to terminate
for a positive drug test result (Rec. 13, 15, 22). The Arbitrator could not have rationally
concluded that the District violated the Agreement when it exercised that option,
merely because termination was not mandatory (Rec. 66). In concluding that because
§47(C)(4) does not mandate termination whenever a school bus driver tests positive for
drugs or alcohol, §47(C)(4) did not permit Ms. DiDomenicantonio’s termination for an
unmitigated positive drug test result, the Arbitrator acted irrationally and exceeded his
authority under the Agreement, by effectively nullifying and re-writing the terms of the
Agreement.
The majority of the Appellate Division, Third Department, erred in confirming
the Arbitrator’s reinstatement Award, after finding that the District “had the option” to
- 21 -
terminate Ms. DiDomenicantonio. Contrary to the majority’s conclusion, the District
did not terminate Ms. DiDomenicantonio “automatically” or without reflection (Rec.
14). Upon being advised of Ms. DiDomenicantonio’s positive drug test result, the
District conducted an investigation, and awaited confirming results of her second split
sample test (Rec. 333, 434-436, 458-460, 468-471). The District also afforded Ms.
DiDomenicantonio and CSEA an opportunity to be heard, at which time they offered
implausible excuses for the positive drug test result (Rec. 460-461, 466-468). Once the
District confirmed that Ms. DiDomenicantonio had an unmitigated positive drug test
result, nothing more was required by the terms of the Agreement before the District
could exercise its “option” to terminate (Rec. 94, 335).
In the view of the majority, an often-repeated or reflexive choice is not a choice
at all (Rec. 13-14). The District, however, bargained for and obtained the options to
either suspend or discharge for a positive drug test result, without prior progressive
discipline. In exercising its options under the Agreement, the District has the right to
consistently select one option (discharge) over the other (suspension). The Arbitrator’s
reinstatement Award, and the majority decision of the Appellate Division, Third
Department, deprived the District of one of its bargained-for options. Action that is
expressly permitted under the terms of a CBA cannot violate that CBA. The
Arbitrator’s reinstatement Award should be vacated, and the decision of the Appellate
Division should be reversed, for the reasons stated by the dissent.
- 22 -
POINT II
THE ARBITRATOR EXCEEDED HIS
POWER BY IRRATIONALLY
IMPOSING A “JUST CAUSE”
STANDARD, THUS REWRITING THE
TERMS OF THE AGREEMENT.
Also in furtherance of “the arbitrator’s own notions of industrial justice”
(Eastern, 531 US at 62), the Arbitrator grafted a “just cause” provision onto the terms
of the Agreement. He did so despite being advised, at the hearing, that the Agreement
did not include a just-cause provision (Rec. 352). Respondents did not then dispute
that no “just cause” provision was included in the Agreement (Rec. 353). The
Arbitrator nevertheless “implied” a “just cause” limitation on the District’s right to
terminate members of the CSEA unit (Rec. 68).
Under the arbitration clause of the Agreement, the Arbitrator’s power was
limited to “the interpretation or meaning of the Agreement” (Rec. 103). The Arbitrator
was thus not free to reject and rewrite the terms of the Agreement, as he thought they
should be (see e.g. Matter of Albany County Sherriffs Local 775 of N.Y. State Law
Enforcement Officers Union, Dist. Council 82, AFSCME, AFLCIO (County of Albany),
27 AD3d 979, 981 [3d Dept 2006] [vacating an arbitration award where the arbitrator’s
construction of a CBA “in effect made a new contract for the parties”] [internal citation
omitted]).
Nothing in Article IV, §47 of the Agreement requires “just cause,” or
- 23 -
consideration of the employee’s prior work record, prior to termination of an employee
who has tested positive for illegal drugs. Under §47(A) of the Agreement, discipline
or discharge may be imposed for acts of “incompetency, insubordination or
misconduct” (Rec. 93, 353). Prior progressive discipline is required “except for the
most serious offenses” and, most particularly, “except as set forth in” §47(C)(4) (Rec.
93-94). The majority decision of the Appellate Division, Third Department
acknowledged that under the 1996 amendment to Article IV, §47(C)(4), a positive drug
test is considered a “serious offense” within the meaning of §47(A) of the Agreement
(Rec. 13).
Under the clear and unambiguous terms of the Agreement, the District has the
discretion to either suspend or discharge the employee for a positive drug or alcohol
test result, without prior progressive discipline. The District advocated, at the hearing,
that its discretionary decision to choose termination for Ms. DiDomenicantonio should
be upheld unless its choice was arbitrary, capricious or in bad faith. The Arbitrator,
however, opined that affording the District its discretionary choice of options with
respect to penalty under the negotiated terms of Article IV, §47(c)(4) would somehow
be tantamount to unilateral action and would “not give due consideration to the rights
and interests of employees, particularly when their livelihoods are at stake” (Rec. 68).
The Arbitrator then utilized a “just cause” standard of review for Ms.
DiDomenicantonio’s termination – a standard which neither party advocated for at the
- 24 -
hearing. The Arbitrator reasoned that:
the just cause standard gives just consideration to the rights
and interests of all concerned parties which explains why it
is the standard set forth in the overwhelming number of
collective bargaining agreements (id.).
The Arbitrator thus substituted his own personal view of the just cause standard for
termination, and re-wrote the plain, negotiated terms of the Agreement, which do not
require just cause for termination, particularly when the termination is based on a
positive drug test result.
When an arbitration award has effectively added a new contract provision not
negotiated by the parties, or conferred a benefit not available under the terms of the
contract, the award will be vacated. For example, in Matter of New York State Law
Enforcement Officers Union, Dist. Council 82, AFSCME, AFL-CIO (State of New
York) (34 AD3d 1161 [3d Dept 2006]), a corrections officer was terminated for having
sexual contact with an inmate. The arbitrator found that the employer had failed to
prove the corrections officer’s guilt of the charged conduct “beyond a reasonable
doubt,” and ordered reinstatement (Id. at 1162). The court vacated the award, because
the parties’ contract did not require proof beyond a reasonable doubt (id.). The “clear
contractual provisions were ignored, not interpreted,” by the arbitrator (id.).
Similarly, in Matter of Riverbay Corp. (Local 32-E, S.E.I.V., AFL-CIO) (91
AD2d 509 [1st Dept 1982]), an employee was terminated for attendance violations.
- 25 -
An arbitrator reinstated the employee, based on a finding that the employer could not
terminate “without a clear and unequivocal warning of its revised standards” for
attendance (Id. at 510). The court vacated the award on the grounds that “the contract
[did] not require that any warning be given” (id.). The court concluded that the
arbitrator had exceeded his power by “a totally irrational construction of the
contractual provisions in dispute,” thus making “a new contract for the parties” (id.) A
number of other cases are in accord (e.g. Nassau Health Care Corp. v Civil Serv. Empl.
Assn., Inc., 20 AD3d 401, 402 [2d Dept 2005] [vacating arbitration award which
disregarded the contractual limitations period for a disciplinary grievance]); New York
City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 306 AD2d
486, 487 [2d Dept 2003], lv. denied 1 NY3d 510 [2004] [vacating award of arbitration
panel with respect to the penalty for an assault charge because the panel “had no
authority to modify the penalty of dismissal” once it sustained the charge]; City of
Canandaigua v Canandaigua Police Officers Ass’n., 174 AD2d 1048, 1049 (4th Dept
1991] [vacating an arbitration award which required compliance with N.Y. Civil
Service Law §75 in imposing discipline, based on a contractual provision regarding
“fair working conditions”]).
In sum, an arbitrator may not add to, delete, or change the terms of the parties’
contract, under the guise of contract interpretation. That is exactly what happened
here. The Arbitrator irrationally re-wrote the Agreement when he required “just
- 26 -
cause,” specifically by including a consideration of Ms. DiDomenicantonio’s prior
work record, for Ms. DiDomenicantonio’s termination (Rec. 68-69).
As aptly noted by Justices Kavanagh and Malone in their dissenting opinion:
In his decision, the arbitrator required, in addition to a
positive finding in the drug test, that other circumstances
must exist, which, when considered in connection with the
failed drug test, amount to "just cause" for [Ms.
DiDomenicantonio’s] termination. Such a requirement does
not exist in the CBA and, by imposing it as a condition to
[the District] exercising its option under the CBA,
represents a material change in the parties' agreement (Rec.
16).
The practical effect of the majority opinion by the Appellate Division, Third
Department, is that it, too, superimposes an unwarranted “just cause” provision on the
terms of the parties’ Agreement. The majority faulted the District for not sufficiently
considering its disciplinary options under the Agreement, and for “refusing to exercise
any discretion in regard to the punishment to be imposed” (Rec. 13). In so doing, the
majority appeared to concede that the District has the discretion to terminate an
employee for a positive drug test. The District’s discretionary choice to terminate Ms.
DiDomenicantonio thus should not have been disturbed, unless it was arbitrary,
capricious or in bad faith.
In the view of the majority, however, the District did not actually “exercise any
choice,” and “refused to actually consider any option except termination” (Rec. 14).
Given that: (i) it is undisputed that Ms. DiDomenicantonio had an unmitigated positive
- 27 -
drug test result; and (ii) the District investigated, awaited a confirming second split
sample test result, and gave Ms. DiDomenicantonio and CSEA an opportunity to be
heard before reaching that conclusion, the District did not have other facts to
“consider” before deciding whether to suspend or terminate. The only logical
implication of the majority opinion is that the District was supposed to consider Ms.
DiDomenicantonio’s good prior work record, and determine that there was no “just
cause” for her termination.
Like the Arbitrator, the majority effectively “required, in addition to a positive
finding in the drug test, that other circumstances must exist which, when considered in
connection with the failed drug test, amount to just cause” for Ms.
DiDomenicantonio’s termination (Rec. 16). Thus, although the majority did not
expressly rule on the “just cause” issue raised by the District, the majority erred in
tacitly agreeing with the Arbitrator that a “just cause” standard applied. The decision
of the court below should be reversed, and the Arbitrator’s reinstatement Award should
be vacated, because a “just cause” standard for termination does not appear in, and is
inconsistent with, the negotiated terms of the Agreement. The Arbitrator did not
confine himself to the interpretation or meaning of the Agreement, and instead re-
wrote the Agreement, as he thought it should be.
- 28 -
POINT III
AFTER REJECTING ALL OF MS.
DIDOMENICANTONIO’S EXCUSES
FOR HER POSITIVE DRUG TEST,
THE ARBITRATOR IRRATIONALLY
AND WITHOUT AUTHORITY
ORDERED HER REINSTATEMENT.
Based on the Arbitrator’s undisputed findings of fact, the District had the
contractual right to terminate Ms. DiDomenicantonio and the Arbitrator was without
authority to reinstate her. At the hearing, CSEA conceded that the District has the right
to suspend or discharge based on a positive drug test result, provided that
“misconduct,” and specifically, “intentional” drug use has been established (Rec. 353,
480). That is what happened here. The Arbitrator considered and rejected all of Ms.
DiDomenicantonio’s alleged excuses for her positive drug test result (Rec. 64-66).
The sole remaining explanation for Ms. DiDomenicantonio’s positive drug test result
was misconduct, or intentional marijuana use. Even under CSEA’s interpretation of the
Agreement, (as articulated at the hearing) Article IV, §47(C)(4) permitted Ms.
DiDomenicantonio’s termination. Neither the terms of the Agreement nor the issues
jointly submitted by the Parties to the Arbitrator authorized the Arbitrator to reinstate
Ms. DiDomenicantonio after he resolved all disputed factual issues against her.
First, the terms of the Agreement did not authorize the Arbitrator to reinstate
Ms. DiDomenicantonio after he had rejected all of her excuses for her positive drug
- 29 -
test result. The Arbitrator specifically found that Ms. DiDomenicantonio’s drug test
result was valid, and was not attributable to “innocent” activity such as inhalation of
second-hand marijuana smoke or unwitting ingestion of marijuana-laced food (Rec.
66). Nothing more was required to authorize Ms. DiDomenicantonio’s termination
under Article IV, §47(C)(4) of the Agreement. Ms. DiDomenicantonio’s positive drug
test was entirely unmitigated, and the District’s discretionary decision to choose
discharge, rather than suspension, thus could not have been arbitrary, capricious, or in
bad faith. Thus, the District did not violate Article IV, §47(C)(4) of the Agreement.
It is well established that use or possession of illegal drugs, even while off duty,
by an employee in a safety-sensitive position constitutes misconduct and is sufficient
cause for termination of a public employee (e.g. Matter of Finnin v Bratton, 236 AD2d
257, 258 [1st Dept 1997], lv. denied 90 NY2d 811 [1997] [upholding termination of a
police officer for off-duty marijuana use]; Holsapple v Arlington Cent. School Dist.,
136 AD2d 639 [2d Dept 1988], lv. denied 71 NY2d 805 [1988] [upholding termination
of a school bus driver for growing marijuana at home]). Because a positive drug test
result evidences at least off-duty illegal drug use, a positive drug test result constitutes
misconduct and is sufficient grounds for termination. In Trotta v Ward (77 NY2d 827
[1991]), this Court upheld the termination of a police officer who was terminated after
he tested positive for marijuana, notwithstanding the officer’s 16-year exemplary prior
work record. Similarly, in Matter of O'Neill v City of New York (52 AD3d 258 [1st
- 30 -
Dept 2008]), the court upheld the termination of a fire fighter “for testing positive for
marijuana during a random drug test under a zero tolerance policy in effect at the time
of the decision.” Likewise, in this case, Ms. DiDomenicantonio’s unmitigated positive
drug test result established, at a minimum, her off-duty use of marijuana, which
constitutes “misconduct” and sufficient cause for her termination under the terms of the
Agreement.
Even assuming, arguendo, that CSEA correctly articulated at the hearing that
termination based on a positive drug or alcohol test requires a finding of intentional
misconduct (Rec. 480), Ms. DiDomenicantonio’s termination was authorized under
Article IV, §47(C)(4) of the Agreement. After the Arbitrator specifically rejected each
and every one of Ms. DiDomenicantonio’s alleged excuses for her positive drug test
result, the only remaining conclusion to be drawn from Ms. DiDomenicantonio’s
undisputed positive drug test result was that she had smoked or otherwise deliberately
ingested marijuana and was guilty of intentional misconduct (Rec. 64-66). Indeed, the
brief time lapse between the end of Ms. DiDomenicantonio’s morning bus run and her
urinalysis drug test on October 21, 2009 (Rec. 333), as well as her lack of remorse and
her attempt to blame her daughter, aggravate such misconduct. The terms of the
Agreement, which afford the District the discretionary choice of suspension or
discharge for a positive drug test result, thus did not authorize the Arbitrator to proceed
to the question of remedy after he found that Ms. DiDomenicantonio had an
- 31 -
unmitigated positive drug test result.
Second, the parties’ stipulation regarding the issues at the arbitration hearing did
not authorize the Arbitrator to ignore the terms of the Agreement, or wield his “own
brand of industrial justice” (187 Concourse, 399 F3d 524, 527 [2d Cir. 2005]). In 187
Concourse, the applicable collective bargaining agreement actually had a “just cause”
limitation on the employer’s right to discharge (id.). The parties’ stipulated issues
presented to the arbitrator were: “Was the grievant discharged for just cause? If not,
what shall the remedy be?” (Id. at 527). The arbitrator found that the employer had
just cause to terminate the grievant, based on two disruptive behavior outbursts (id.).
The arbitrator nevertheless reinstated the grievant, based on the grievant’s prior good
work record, and the arbitrator’s belief that the grievant “should be given an
opportunity to prove that he can be a productive employee” (id.). In vacating the
reinstatement award, the Second Circuit concluded that:
the arbitrator’s authority was limited by both the CBA and
the questions submitted by the parties for arbitration . . . By
the terms of the submission, [ ]the arbitrator had authority to
proceed to the second question only if he found no just
cause for [the grievant’s] termination . . . . Upon a finding
of just cause, there was nothing further to be done. The
arbitrator had no authority, under either the CBA or the
submission, to fashion an alternative remedy. By ordering
[the grievant] reinstated, the arbitrator exceeded his
authority (id.).
- 32 -
Similarly, in this case, the issues submitted by the parties required the Arbitrator
to first find a violation of Article IV of the Agreement, before proceeding to the second
question of remedy (Rec. 59, 355). As the dissent in the court below correctly noted,
the answer to the first question (whether the District violated Article IV of the
Agreement) “had to be” no, thus ending the inquiry (Rec. 15). There was then “no
reason to consider the second question, which focused on the remedy” (id.). Based on
the Arbitrator’s findings of fact with respect to Ms. DiDomenicantonio’s drug test
result, and his acknowledgement that Article IV, §47(C)(4) authorized either
suspension or termination for a positive drug or alcohol test result (Rec. 64-67), the
Arbitrator could not rationally conclude that Ms. DiDomenicantonio’s termination
violated Article IV. The Arbitrator was thus without authority to proceed to the
question of remedy. The Arbitrator’s reinstatement Award should be vacated, and the
decision of the Appellate Division, Third Department should be reversed.
- 33 -
POINT IV
PUBLIC POLICY PRECLUDES
REINSTATEMENT OF MS.
DIDOMENICANTONIO, WHO TESTED
POSITIVE FOR MARIJUANA
SHORTLY AFTER SHE FINISHED
DRIVING CHILDREN TO SCHOOL.
This Court has articulated a two-pronged test for determining whether to vacate
an arbitration award on public policy grounds. Under this test, vacature is warranted
only when:
i) public policy considerations, embodied in statute or
decisional law, prohibit in an absolute sense, particular
matters being decided or certain relief being granted by
an arbitrator; or
ii) the award violates a well-defined constitutional,
statutory or common law of this State
(Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100,
AFL-CIO, 99 NY2d 1, 7, 11 [2002]). The District concedes that in the absence of a
criminal conviction for driving under the influence or certain other drug-related
offenses, reinstatement of a school bus driver who has tested positive for drugs does
not violate State law, making the second prong of this test inapplicable. The District
further acknowledges that the USDOT regulations governing drug and alcohol testing
for commercial vehicle drivers do not prohibit, “in an absolute sense” the reinstatement
of a commercial vehicle driver who has tested positive for drugs (Eastern Associated
- 34 -
Coal Corp., 531 US at 65). The reinstatement award thus does not violate any federal
policy. The District respectfully submits, however, that this Court should find that
reinstatement of a known illegal drug abuser as a school bus driver violates the strong
public policy of this State to protect school children.
In Respondents’ view, the job security of a public school bus driver who uses
marijuana must take precedence over the safety and welfare of school children who are
required to ride a school bus to and from school. This view, like the Arbitrator’s
reinstatement Award, is fundamentally at odds with this State’s public policy to protect
school children from the harmful conduct of school employees. The District is
unwilling to incur the risk to students of returning a known drug user behind the wheel
of a school bus. In terminating Ms. DiDomenicantonio, the District sought to protect
the public, while meeting the requirements of its negotiated Agreement. The
Arbitrator’s Award errs on the side of protecting the drug-using school bus driver,
while ignoring the terms of the parties’ negotiated Agreement.
The courts of this state have vacated arbitration awards ordering reinstatement of
employees when the health, safety, and well-being of a vulnerable population of school
children are at risk (see Matter of Watt v. East Greenbush Cent. School Dist., 85 AD3d
1357, 1359 [3d Dept 2011] [noting the strong “public policy of protecting students
from offensive and harmful conduct by adults, especially school employees”]). For
example, in Matter of Binghamton City School Dist. (Peacock) (33 AD3d 1074 [3d
- 35 -
Dept 2006], lv. denied 8 NY3d 840 [2007]),1 the court vacated a hearing officer’s
decision which ordered reinstatement of a teacher who had an inappropriate
relationship with a 16-year old high school student, on the grounds that it violated
“strong public policy” (Id. at 1076). Significantly, the court found that the teacher
“showed no remorse” for his “improper, intimate and clandestine relationship with a
minor female student” (Id. at 1077). The court relied on “New York’s explicit and
compelling public policy to protect children from the harmful conduct of adults,
particularly in an educational setting” (Id. at 1076 [internal citation omitted]). The
court also noted that:
in light of a school’s liability and the adverse effect on its
students if such misconduct were to recur, this policy
prohibits an award in a disciplinary proceeding which
would not adequately protect students from the teacher in
the future, particularly where the offender has been
insubordinate, refuses to admit that he or she has done
anything wrong and shows no remorse
(Id. at 1076-1077; see also Board of Educ. of East Hampton Union Free School Dist. v
Yusko, 269 AD2d 445 [2d Dept 2000] [vacating a §3020-a hearing officer’s decision
on the grounds that continued employment of a teacher who engaged in “unwanted and
inappropriate physical contact and verbal conduct” with students “violated strong
public policy”]; Matter of Watt, 85 AD3d at 1359 [upholding the §3020-a termination
1 Binghamton involved the court’s review of a hearing officer’s decision under N.Y. Education Law
§3020-a, regarding the employment of a tenured teacher (id.). Section 3020-a decisions are reviewed
by the courts pursuant to the same standards as arbitration awards, under CPLR 7511 and N.Y.
- 36 -
of a teacher who engaged in inappropriate sexual contact and made inappropriate
remarks towards students]).
The strong public policy to protect school children while riding school buses is
of equally paramount importance. As the courts have noted, “children are required to
attend school, and [ ] for many, the only way to get to school” is by school bus
(Mehlman ex rel. Mehlman v Diamond Sparklers, Inc., 2002 WL 32096585,*2 [ED
NY 2002]). A public school district of this state has a well-recognized “special
relationship to its students . . . while in its charge,” including while the students are
riding on a school bus (e.g. Pratt v Robinson, 39 NY2d 554, 560 [1976]; Ernest v Red
Cr. Cent. School Dist., 93 NY2d 664, 671-672 [1999]).
Thus, for example, in Will v Frontier Cent. School Dist. Bd. of Educ. (97 NY2d
690 [2002]), this Court upheld the termination of a school bus driver who reported to
work with an elevated blood alcohol level. The court concluded that the bus driver’s
“alcohol-related conduct jeopardized the public safety and the safety of the school
children in her charge” (id.). This Court further observed that “the school board has a
special obligation to safeguard the well-being of its students” (Id. at 691). Although
Will was not an arbitration case, the same public policy considerations preclude
reinstatement of Ms. DiDomenicantonio, who tested positive for marijuana shortly
after she finished driving children to school on her morning bus run.
Education Law §3020-a (5).
- 37 -
This Court’s recent decision in City School Dist. of the City of N.Y. v McGraham
(17 NY3d 917 [2011]) does not compel a contrary conclusion. In that case, a hearing
officer found a tenured teacher guilty of inappropriate and intimate electronic
communications with a student, but did not terminate the teacher (Id. at 919).
Although this Court declined to vacate the reinstatement award, the Court’s decision in
that case need not be controlling here.
First, this Court observed that the teacher in McGraham “was remorseful and
her actions were unlikely to be repeated, such that termination was not mandated” (id.).
In this case, by contrast, reinstatement of Ms. DiDomenicantonio is particularly
unwarranted because, like the teacher in Binghamton, Ms. DiDomenicantonio refused
to admit her misconduct and showed no remorse for her actions (see Binghamton, 33
AD3d at 1077). Instead, prior to and during the arbitration hearing, she made
implausible excuses for her positive drug test result, which included blaming her own
teenage daughter (Rec. 435, 460-461, 467-468, 484-495, 503, 511-515). The District
thus has no assurance that Ms. DiDomenicantonio will not repeat her misconduct if she
is returned to work.
Second, the Arbitrator’s decision failed to consider the grave and potentially
deadly consequences if Ms. DiDomenicantonio repeats her misconduct, as well as the
District’s potential liability for such misconduct. Unlike McGraham, where the
misconduct evolved over time, and did not risk the life of the student involved, a bus
- 38 -
driver’s illegal drug use can result in instantaneous and catastrophic loss of life (see
McGraham, 17 NY3d at 919). There are some offenses – including illegal drug use by
a school bus driver – which do not warrant a second chance.
This Court should thus find that the strong public policy of this state to protect
the safety and well-being of school children prohibits “in an absolute sense” Ms.
DiDomenicantonio’s reinstatement as a bus driver. The District and its school children
should not be required to bear the potential risks associated with returning to duty a bus
driver who uses illegal drugs, especially when the District has bargained for the
“option” to discharge such driver. Even if or to the extent that New York State’s
strong public policy to protect school children must be balanced against public policy
favoring collective bargaining of employee discharge and discipline, the Arbitrator’s
reinstatement Award tips too far in favor of job security for a school bus driver who
uses illegal drugs.
The two dissenting Justices in the court below thus correctly concluded that the
Arbitrator’s reinstatement Award violated “sound public policy,” and impermissibly
undermined the District’s “legitimate concern that school bus drivers not be substance
abusers” (Rec. 16). This Court, like Justices Kavanagh and Malone, should find that
the Arbitrator’s Award, which would place Ms. DiDomenicantonio back behind the
wheel of a school bus, violates the strong public policy of this State to protect school
children.
- 39 -
CONCLUSION
For all of the foregoing reasons, the Decision of the Appellate Division, Third
Department, should be reversed, and the Arbitrator’s reinstatement Award should be
vacated. This Court should follow the decision of dissenting Justices Kavanagh and
Malone, and find that because the District “had the option” under a CBA to terminate a
school bus driver who failed a drug test, the District could not have violated the CBA
“when it chose that option and terminated the school bus driver.” This Court should
further find, as did Justices Kavanagh and Malone, that the Arbitrator re-wrote the
parties’ Agreement by requiring “just cause” for the bus driver’s termination, and that
the Arbitrator had no authority to proceed to the question of remedy and order the
driver’s reinstatement after he found that she had an unmitigated positive drug test
result. In the alternative, this Court should join Justices Kavanagh and Malone in
finding that reinstatement of an illegal drug user as a school bus driver violates public
policy, and should vacate the Arbitrator’s reinstatement Award on that basis.
Dated: February 27, 2012 WHITEMAN OSTERMAN & HANNA LLP
Albany, New York
By:
Beth A. Bourassa, Esq.
Attorneys for Appellant
Shenendehowa Central School District
One Commerce Plaza, 19th Floor
Albany, New York 12260
(518) 487-7617
W:\0900s\0930\DiDomen\Pleadings\COA Brief (as filed 2.27.12).doc