Southwest Ohio Regional Transit Authority v. Amalgamated Transit Union, Local 627
| Decision Date | 28 September 1994 |
| Docket Number | 94-LW-1770,C-930423 |
| Parties | SOUTHWEST OHIO REGIONAL TRANSIT AUTHORITY, Plaintiff-Appellee, v. AMALGAMATED TRANSIT UNION, LOCAL 627, Defendant-Appellant. APPEAL |
| Court | Ohio Court of Appeals |
Civil Appeal From Hamilton County Court of Common Pleas
Dinsmore & Shohl, Charles Roesch, Esq., No. 0013307, and Christopher Ragonesi, Esq., No. 0047267, 1900 Chemed Center, 255 East Fifth Street, Cincinnati, Ohio 45202, for Plaintiff-Appellee,
Jubelirer Pass & Intrieri and Ernest B. Orsatti, Esq., Pa. No. 19891, 219 Fort Pitt Boulevard, Pittsburgh, Pennsylvania 15222, and James B. Robinson, Esq., No. 0023483, 125 East Court Street, Suite 1000, Cincinnati, Ohio 45202, for Defendant-Appellant.
DECISION
This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Hamilton County Court of Common Pleas, the briefs and the arguments of counsel.
This case arose out of the firing by the appellee Southwest Ohio Regional Transit Authority ("SORTA") of Maurice Patmon ("Patmon") for operating a bus while under the influence of alcohol. At the time he was terminated Patmon was a member of the Amalgamated Transit Union, Local 627 ("Union"), appellant herein. Patmon contested his firing through the procedures established in the then existing collective-bargaining agreement ("CBA") between SORTA and the Union.[1] When the grievance process failed to resolve the dispute, the matter proceeded to binding arbitra-tion.[2] In a two-to-one decision, the arbitrator sustained the grievance and ordered Patmon reinstated with back pay ("arbitration award").
On December 2, 1992, SORTA filed an application to vacate the arbitration award in the court of common pleas. In response, the Union filed an application to confirm the award. Cross- motions for summary judgment were then filed. The trial court granted SORTA's motion to vacate the arbitration award, citing R.C. 2711.10 and the public policy of the state of Ohio. The Union's motion was correspondingly denied. The Union appealed, urging as error the court's granting of SORTA's motion for summary judgment and the denial of its own motion.
The pertinent background information leading up to Patmon's firing is as follows. As part of SORTA's Medical and Drug Testing Program ("the Program"), bus drivers are required to undergo a biennial physical exam which includes a drug and alcohol test. Only the alcohol test is pertinent to this appeal. The test is scheduled by the employee thirty days in advance, and at a time chosen by the employee, on the employee's own time. Pertinent to this appeal is a provision of the Program stating that in addition to the voluntary test, an employee may also be tested for alcohol "after an accident or incident where recklessness or negligence is suspected or where an employee exhibits unusual behavior or appears impaired."
Under the Program, there appears to be no penalty for a positive blood-alcohol test during the voluntary biennial physical exam. However, if retesting is warranted, the following portion of the Job Impairment Exam and Procedure Section of the Program is applicable:
Section G, entitled "Results," provides in pertinent part that if results are positive, disciplinary action will be taken up to and including discharge. The chain of custody referred to in this Impairment section is explicitly spelled out.
In addition to the Program, SORTA's coach operator's manual advises that the first offense for operating a coach while under the influence of alcohol or drugs will result in dismissal from employment.
Pursuant to that part of the Program which allows the employee to plan for his own alcohol test, Patmon scheduled his regular biennial exam for Monday, July 29, 1991, a day he was not scheduled to work, and submitted his sample at 8:15 A.M. His test results were not returned until the next day, when he was at work driving a bus. Those test results registered a blood-alcohol content of .171 GR/DL. Management decided that because of the high test result and the voluntary selection of the test date by the employee, Patmon should be retested. At 4:00 P.M. on Tuesday, July 30, the bus driven by Patmon was stopped by SORTA personnel and Patmon was asked to submit to another blood-alcohol test. Initially, Patmon refused to take the second test, but several hours later he agreed. Those results were .088 GR/DL, and were reported to SORTA on August 1. Patmon was fired the next day.
The question of whether Patmon was terminated with just cause was considered by the arbitrator. Three aspects of the termination were considered: the right of SORTA to require the second test; whether the chain-of-custody procedure promulgated by SORTA was properly followed with respect to the blood sample taken on July 30; and whether prior disciplinary actions against Patmon were improperly considered when the decision was made to terminate him. Only the first two are pertinent to this appeal.
In order to determine whether SORTA had the right to order the second test, the arbitrator had to interpret the Program provision which allows an additional drug test "where recklessness or negligence is suspected or where an employee exhibits unusual behavior or appears impaired." The arbitrator also had to make a determination about whether the chain of custody was followed in testing the sample which resulted in Patmon being fired.
The arbitrator decided that Patmon had not "exhibited unusual behavior" in appearing for a voluntarily scheduled test at 8:15 in the morning with a blood alcohol level of .171, and therefore, in the absence of any impaired conduct while actually driving the next day, SORTA had no right under the Program to order a second test. He also found that in testing the second blood sample taken on July 30, although there was no evidence that the sample had been tampered with, SORTA had failed to establish the chain of custody required by the Program. Thus, those test results could not be used as the basis for Patmon's termination.
The trial court vacated the arbitration award reinstating Patmon, and upheld his termination by SORTA "pursuant to R.C. 2711.10 and the public policy of the state of Ohio."
On appeal, the Union asks this court to reverse the trial court and to confirm the arbitration award. In support of its assignment of error the Union argues that since the arbitration award draws its essence from the CBA, it must be confirmed.
Judicial review of labor arbitration awards is unarguably narrow. Neither side in this case disputes this fact. Both the United States Supreme Court and the Ohio Supreme Court have repeatedly emphasized the deference to be given to an arbitrator's findings. See, generally, United Paperworkers Internatl. Union v. Misco, Inc. (1987), 484 U.S. 29, 36-38, 108 S.Ct. 364, 369-371; United Steelworkers of America v. American Mfg. Co. (1960), 363 U.S. 564, 80 S.Ct. 1343; United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 80 S.Ct. 1347; United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 80 S.Ct. 1358.
The Ohio Supreme Court adopted with approval this limited judicial review in Goodyear Tire & Rubber Co. v. Local 200 (1975), 42 Ohio St.2d 516, 330 N.E.2d 703. The court expressly followed the holding of United Steelworkers of America v. Enterprise Wheel & Car Corp; supra, that "the refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements." Goodyear Tire & Rubber Co., 42 Ohio St.2d at 520, 330 N.E.2d at 707. This "hands off" approach has been often repeated. See, e.g., Hillsboro v. Fraternal Order of Police, Ohio Labor Council, Inc. (1990), 52 Ohio St.3d 174, 556 N.E.2d 1186, (when a provision in a collective-bargaining agreement is subject to more than one reasonable interpretation, arbitrator's interpretation and not that of a reviewing court governs the rights of the parties); Findlay City School Dist. Bd. of Edn. v. Findlay Edn. Assn. (1990) 49 Ohio St.3d 129, 551 N.E.2d 186 ().
Nevertheless, the courts have also recognized that, while limited, reviewing courts do have an important role to play in the review of labor arbitration cases, most notably in matters involving public policy.
In the case of W.R. Grace & Co. v. Internatl. Union of United Rubber (1983), 461 U.S. 757, 103 S.Ct. 2177, the United States Supreme Court held that a court may not enforce a collective-bargaining agreement that is contrary to public policy. The Court specifically found that the issue of public policy was for the courts to resolve. The Court went on to explain that a court's refusal to enforce an arbitrator's interpretation of a contract provision is limited to situations where the contract as interpret-ed would violate some explicit public policy that is well defined and dominant, to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. W.R. Grace, 461 U.S. at 766, 103 S.Ct. at 2183. This role for the courts was further clarified in Misco, supra. While acknowledging a court's right to refuse to enforce an award on...
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