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What you need to know for 01/23/2018

Arbitrator had right to reinstate Shen bus driver who tested positive for marijuana, court rules

Arbitrator had right to reinstate Shen bus driver who tested positive for marijuana, court rules

An arbitrator did not overstep his bounds in reinstating a Shenendehowa Central School District bus

An arbitrator did not overstep his bounds in reinstating a Shenendehowa Central School District bus driver who tested positive for marijuana, the state’s highest court ruled Tuesday.

The school district had moved to fire the bus driver, Cynthia DiDomenicantonio, after a random drug test in October 2009 noted the presence of marijuana.

After an arbitrator ruled that she be reinstated, essentially imposing a six-month suspension without pay, the district took the case to court, arguing she was fired as part of a zerotolerance policy and that the arbitrator overstepped his authority.

The bus driver and her union argued no such policy existed, however, and that the contract was clear in allowing for lesser punishments than termination.

The Court of Appeals sided with the union, finding that an arbitrator’s ruling could be overturned only on specific narrow grounds, none of which was established in the bus driver’s case.

“The arbitrator’s decision did not exceed a specific limitation on his power; nor was it irrational,” the court wrote. “Rather, he determined that, contrary to the school district’s argument, the parties’ agreement did not require the penalty of termination in these circumstances and that the district did not in fact have a zero tolerance policy.”

The decision on the appropriate penalty being reinstatement with conditions did not violate public policy, the court ruled.

A representative of the school district said the district was consulting with its attorneys over the decision. She couldn’t comment further.

But, backing the school district in the case was the New York State School Boards Association. The association issued a statement Tuesday expressing disappointment in the outcome.

“Although the decision is based upon technical provisions of law related to the ultimate authority of courts to reverse the decisions of labor arbitrators,” the association’s statement reads, “the result of this decision is simply wrong from a public policy perspective.”

The association’s aim in supporting the district, the statement said, was to ensure the safety of students would be preserved.

“Sadly, this decision yields the exact opposite result,” the statement reads.

A spokeswoman for the bus driver’s union, the Civil Service Employees Association, said, though, that while they realize the nature of the case brings about much emotion, the case boils down to the contract itself. The contract, spokeswoman Therese Assalian said, had a clear mechanism for discipline that would have allowed for anything including suspension or mandatory drug testing or counseling.

“A contract is sacred,” Assalian said, “and in this case, the school district chose to look away from the contract and go their own way to claim they had a zero-tolerance policy, when in effect they did not in the contract. It’s a very clear case.”

The case began in October 2009, when DiDomenicantonio tested positive for marijuana use in a random drug test. She submitted to the test upon returning to the bus garage after delivering children to school that day. When the test results came back, she was placed on unpaid suspension and then fired in November 2009. She had worked as a Shen bus driver for almost 10 years.

The case went to the Court of Appeals after the mid-level Appellate Division of state Supreme Court ruled in favor of DiDomenicantonio, siding with the arbitrator’s original recommendation that she be reinstated without back pay.

The district had previously refused to comply with that fi nding by arbitrator James Gross and took CSEA Local 1000 to court in August 2010. In November 2010, state Supreme Court in Saratoga County sided with the district, with Judge Thomas D. Nolan Jr. writing in his decision that the district can get rid of anyone who puts students at risk. CSEA then appealed to the Appellate Division.

Whether DiDomenicantonio had consumed marijuana wasn’t the point — although she contended she hadn’t smoked it but may have been exposed to secondhand smoke or inadvertently eaten marijuana-laced food. The arbitrator ruled she was under the influence of the drug because she tested positive for it.

The issue, according to the appellate decision, was that the district’s contract with the union didn’t mandate she be fired, as the district said it did.

Assalian did not know Tuesday if, more than three years later, DiDomenicantonio still wanted her job back. Contacted Tuesday, DiDomenicantonio referred comment to her attorneys.

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