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Upper Merion Area School District v. Teamsters Local #384

Commonwealth Court of Pennsylvania

June 23, 2017

Upper Merion Area School District, Appellant
Teamsters Local #384

          Argued: February 8, 2017



          MICHAEL H. WOJCIK, Judge

         Upper Merion Area School District (the District) appeals from the April 28, 2015 order of the Court of Common Pleas of Montgomery County (trial court) denying the District's petition to vacate an arbitration award that sustained the grievance of Sheena Boone-East (Grievant) in part and directed her reinstatement as a school bus driver for the District. We affirm.

         Grievant began her employment with the District as a school bus driver in November 2011. At all relevant times, Grievant was a member of Teamsters Local #384 (Union), which is the exclusive bargaining agent for all school bus drivers in the District. The District and the Union were parties to a collective bargaining agreement with a term that began on July 1, 2011, and continued through June 30, 2016 (CBA).

         Section 16.1(3) of the CBA states that the District has the right to immediately suspend or discharge any employee for "[d]rinking or consuming illegal drugs during working hours, including lunchtime, or being under the influence of liquor or drugs during work time, including lunch time." Reproduced Record (R.R.) at 100a. Additionally, in accordance with federal law and regulations, the District enacted School Board Policy 810.1, entitled "Drug/Alcohol Testing - Covered Drivers." R.R. at 215a. Section 810.1(3) of the policy prohibits a covered driver from reporting or remaining on duty while using or possessing alcohol, having an alcohol concentration of 0.02 or greater, or within four hours after using alcohol, and from reporting or remaining on duty while using any drugs or testing positive for drugs. Id. Section 810.1(4) mandates that the District require covered drivers to submit to random testing for drugs and alcohol and recognizes the District's authority to impose discipline, including discharge, for a violation of the policy. R.R. at 216a.

         On June 12, 2013, Grievant reported to work at 6:45 a.m. and drove the District's school bus on her morning run. After she completed that run, Grievant was notified by her supervisor, Marsha Wagner, that she had been selected for a random drug and alcohol test. Grievant reported to WORKNET Drug and Alcohol Services (WORKNET), in King of Prussia, at 8:24 a.m. and submitted a urine sample. She returned to the District and clocked out around 9:00 a.m. At 10:10 a.m. she returned to work for her second run, which she finished at 12:12 p.m.

         On June 14, 2013, a WORKNET physician notified Grievant that she had tested positive for amphetamines, and she immediately reported these results to Wagner. Later that day, WORKNET provided the District with notice of Grievant's positive test results.

         On July 22, 2013, Grievant met with Michelle Longo, the District's Director of Human Resources, who advised Grievant that the District was placing her on immediate suspension, without pay, pending termination charges for violating the District's drug policy.[1] On July 30, 2013, Grievant advised the District that she was opting to proceed under the CBA's grievance procedure rather than section 514 of the Public School Code of 1949 (School Code).[2] On August 2, 2013, the Union filed a grievance on Grievant's behalf, requesting that she be reinstated to her position as a bus driver and that she be made whole with respect to any lost wages and benefits. On August 5, 2013, the District's Board of School Directors (Board) approved and executed a statement of charges and a resolution authorizing Grievant's termination.

         By letter dated August 16, 2013, the District denied the grievance, and the Union requested that the matter be moved to the next step in the grievance procedure.[3] The Board conducted a "step 2" grievance hearing on October 7, 2013. At this hearing, the parties agreed that the District would have until November 6, 2013, to issue its decision and that "all timelines would be waived until that date." R.R. at 148a. On October 21, 2013, the Board issued a written decision sustaining the District's action and denying the grievance. On November 5, 2013, the Union demanded that the matter proceed to arbitration.

         The Arbitrator held a hearing on March 31, 2014. The District presented the testimony of Rita Lebo, a director and custodian of records at WORKNET. Lebo stated that federal Department of Transportation regulations mandate testing for cocaine, marijuana, amphetamines, opiates, and PCP for anyone working in a safety sensitive position, including a bus driver. Lebo stated that if a person working in such a position tests positive for any of these drugs, federal regulations require that the person be immediately removed from that position and be seen by a certified substance abuse professional, who makes determinations concerning the need for counseling and treatment. Lebo explained that the employee will be required to undergo a return-to-duty drug test, as well as a minimum of six follow-up drug tests after returning to work. R.R. at 28a-41a.

         Lebo confirmed that Grievant tested positive for amphetamines and that when she was informed of this result, Grievant advised a WORKNET physician that she had taken her son's medication. Lebo acknowledged that federal regulations do not require termination of an employee for a positive drug test and that decisions to hire, retain, and terminate employees are left to the discretion of the employer. R.R. at 41a-42a.

         The District next presented the testimony of Longo, its director of human resources. Longo testified regarding the July 22 meeting with Grievant and identified numerous exhibits documenting the procedural steps discussed above. Longo stated that to the best of her knowledge, no District employee had previously tested positive for drugs or alcohol. R.R. at 42a-58a.

         Grievant testified that she had worked for the District as a school bus driver for approximately two years and was randomly subjected to drug tests three or four times each year. Regarding the results of the June 12, 2013 test, Grievant said that her son suffers from attention deficit hyperactivity disorder and was initially prescribed a low dosage of Adderall that was gradually increased from five milligrams to thirty milligrams. Grievant stated that when her son began losing his appetite, she became concerned with the effects of this medication, and ultimately decided to try it herself. She noted that she asked her son's psychiatrist if Adderall was a narcotic and was advised it was not, so she thought that it was safe to take. Grievant testified that she took the pill on the evening of June 9, 2013, and she felt no effects from the medication.[4] R.R. at 58a-64a. On cross- examination, Grievant acknowledged that she should have read more about Adderall before trying it herself. R.R. at 68a.

         By opinion and award dated June 25, 2014, the Arbitrator granted the grievance in part and denied it in part. Addressing whether the District had just cause to terminate Grievant, the Arbitrator noted that there was no dispute concerning Grievant's violation of the drug and alcohol policy or the District's authority to terminate employees who violate that policy. However, the Arbitrator further noted that, under the policy, the District was not required to terminate an employee for a violation. The Arbitrator observed that the District's reservation of discretion to impose a lesser penalty reflected that the District was sophisticated and insightful enough to anticipate that, on occasion, unique circumstances might call for a lesser penalty. The Arbitrator then concluded that Grievant's situation presented such unique circumstances, reasoning as follows:

[Grievant] is not a recreational drug user. Nor, is she likely to repeat this misadventure. Her singular foray was to try and understand why the drug, prescribed by a physician, affected her son so dramatically. She found out from her son's psychiatrist that Adderall was not a narcotic. In her mind, if it weren't a narcotic, there was, evidently, no danger. (N.T. 62-63). [Grievant] worked the Monday, Tuesday and Wednesday after she ingested a single dose of her son's Adderall the preceding Sunday. There was no testimony that any District employee who interacted with [Grievant] during those three days noticed anything unusual in her behavior, or suspected that she was impaired in any way. And, the morning of her test, [Grievant's] supervisor, after chatting with her, allowed [Grievant] to drive the school bus to her test site. I point this out, not in defense of [Grievant's] taking the medication, but to highlight that there is no record evidence she was at all impaired when she drove students.
While having amphetamines in her system is clearly in violation of the District's drug and alcohol testing policy, there is simply no evidence that she was at all impaired or that her acuity to drive the school bus was at all diminished.
Moreover, the U.S. Department of Transportation Regulations for safety sensitive positions, such as a bus driver, do not require termination of an employee who tests positive, but merely require their immediate removal from the safety sensitive position. (N.T. 42).
Under these circumstances, on this record, the District's termination was too severe a penalty considering the facts presented.

         Arbitrator's opinion at 10-11. Having concluded the District's termination of Grievant's employment was too severe a penalty, the Arbitrator issued an award directing that Grievant be returned to her position as a school bus driver, subject to the conditions that: she first "be evaluated, pursuant to Department of Transportation Regulations, by a federally certified substance abuse professional, who will determine if any counseling and/or treatment is necessary. [She also must] pass a return-to-duty drug test . . . and submit to at least six such tests during the first year of employment, as required by the Regulations." Arbitrator's opinion at 11. The Arbitrator directed that Grievant receive back pay from the date of her dismissal to the date of the award. The award denied Grievant pay for the time she spends in her evaluation and any recommended counseling or treatment program but allowed her benefit accrual to continue during the evaluation and counseling or treatment period.

         The District filed a petition for review with the trial court, asserting that: the Arbitrator's award did not draw its essence from the CBA; the award was contrary to a well-defined, dominant public policy of protecting children from exposure to illegal drug use; the award ignores the District's authority under section 514 of the School Code to terminate an employee for improper conduct; and the Arbitrator exceeded his jurisdiction by reinstating Grievant to her position after finding that she tested positive for drugs while on duty. The trial court rejected each of these arguments.

         The trial court first addressed whether the Arbitrator's award drew its essence from the CBA.[5] The trial court specifically found that the issue of whether the District had just cause to discharge Grievant was within the terms of the CBA[6]and concluded that the Arbitrator's interpretation of that term to exclude a one- time policy violation could be rationally derived from the CBA. Next, relying on our analysis in Blairsville-Saltsburg School District v. Blairsville-Saltsburg Education Association, 102 A.3d 1049 (Pa. Cmwlth. 2014), appeal denied, 109 A.3d 680 (Pa. 2015), and applying the three-step analysis set forth in City of Bradford v. Teamsters Local Union No. 110, 25 A.3d 408, 414 (Pa. Cmwlth. 2011), the trial court held that the Arbitrator's award was not contrary to a well-defined public policy to protect children from exposure to illegal drugs. In doing so, the trial court emphasized the Arbitrator's findings that Grievant only experimented one time with Adderall, she was not an illegal drug user, and she was not a danger to students.

         The trial court also determined that the award does not ignore the District's statutory authority under the School Code to terminate an employee for improper conduct but, instead, acknowledges that the parties proceeded with this matter under the CBA's grievance provisions. Additionally, the trial court concluded that the award did not exceed the Arbitrator's jurisdiction, observing again that an arbitrator's award will be upheld if it represents a rational interpretation of the parties' collective bargaining agreement. State ...

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