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July 15, 2011

Arbitrating an employee’s termination after a random drug test proved positive

Arbitrating an employee’s termination after a random drug test proved positive
Local 333, United Marine Division, International Longshoreman's Association, AFL-CIO, Petitioner-Appellant, v New York City Department of Transportation, 35 A.D.3d 211, Motion for leave to appeal denied, 9 N.Y.3d 805

A ferryboat deckhand employed by the New York City Department of Transportation [DOT] was terminated because he was unable to provide a urine sample during a random drug test. The test was administered eight days after DOT instituted a "Zero Tolerance Policy for Positive Drug and Alcohol Test Results."

DOT’s new policy was adopted in response to the Staten Island Ferry accident on October 15, 2003. That accident involved a DOT ferryboat pilot who had taken medically prescribed drugs colliding with a concrete pier. 11 passengers were killed and dozens of others injured as a result of the collision.

In addition to testing positive for drugs or alcohol, DOT’s zero tolerance policy applied if an employee refused to submit to a drug or alcohol test as defined under Title 49 Part 40 of the Code of Federal Regulations. It also applied if an individual failed to provide at least a 45 ml urine sample within 3 hours of their first unsuccessful attempt to provide a sample unless it was determined that there was a medical reason for such failure.

A deckhand was unable to produce a sufficient urine sample, despite consuming an unspecified amount of liquid during the 2½; hours between his two attempts. DOT terminated him pursuant to its “Zero Tolerance” policy. The union grieved the deckhand’s dismissal and ultimately the matter was submitted to arbitration.

The arbitrator modified the penalty of dismissal to a 30-day suspension after finding that there were mitigating circumstances -- DOT’s failure to produce key witnesses – that supported imposing a lesser penalty.

Supreme Court, however, refused to confirm the arbitration award, holding that the arbitrator exceeded his power because the “award violated public policy” and, considering the recent Staten Island Ferry accident, was irrational and "devoid" of common sense. The Appellate Division reversed the lower court’s ruling and affirmed the arbitrator’s determination.

The Appellate Division ruled that DOT’s failure to produce the witnesses deprived the deckhand “of the opportunity to challenge the reliability of the test and whether the procedures specified in the regulation were followed.”

The Appellate Division pointed out that an arbitration award may be vacated if it "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power," citing Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33. On the other hand, the court noted that “These exceptions are to be narrowly read in light of the strong federal and New York public policies favoring resolution of labor disputes by arbitration.”

The Appellate Division then concluded that none of these exceptions applied to the arbitration award in this instance. It said that the following test applied:

A public policy whose violation warrants vacatur of an arbitration award must entail "strong and well-defined policy considerations embodied in constitutional, statutory or common law [that] prohibit a particular matter from being decided or certain relief from being granted by an arbitrator," citing New York State Correctional Officers & Police Benevolent Assoc., 94 NY2d 321.

In contrast, said the court, policies that are merely "general considerations of supposed public interests" are not sufficient grounds for vacating an arbitrator’s award.

In this instance the Appellate Division ruled that the arbitration award did not violate a strong, well-defined public policy because DOT’s Zero Tolerance Policy for Positive Drug and Alcohol Test Results was not expressly embodied in constitutional, statutory or common law.

The “Zero Tolerance Policy” was adopted as DOT’s new internal policy shortly before the individual was tested.

The New York City Administrative Code § 12-307(b) — which provides generally that the City and other public employers have sole authority over all aspects of the work and discipline of their employees, and generally removes those areas from the scope of collective bargaining — does not embody a public policy violated by the award. since that provision also states that matter concerning “the practical impact that decisions have on terms and conditions of employment, including, but not limited to, questions of workload, staffing and employee safety, are within the scope of collective bargaining.”

Clearly, said the court, the zero tolerance drug policy is a disciplinary matter that has a "practical impact" on the "terms and conditions of employment, including, but not limited to, . . . employee safety." Accordingly, it is "within the scope of collective bargaining…." Thus, ruled the court, Local 333’s challenging the impact of the application of the policy on an individual in the negotiating unit is within the scope of the broad arbitration clause set out in the collective bargaining agreement.

Holding that the arbitrator’s decision was reasonable and justified by the evidence, or lack thereof, in the record, the Appellate Division decided that the arbitrator had not exceeded his powers.

The court said that the relevant collective bargaining agreement contained a broad arbitration clause covering disputes such as these. Accordingly, this allowed the arbitrator to provide or direct the relief or remedy he saw fit under the circumstances.

The full text of decision is posted on the Internet at:


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