Court of Appeals reviews Shenendehowa marijuana firing
Union tries to block termination of bus driver who tested positive
ALBANY Whether an arbitrator overstepped his bounds in reinstating a Shenendehowa Central School District bus driver who tested positive for marijuana use was taken up by the state’s highest court Thursday.
The attorney for the school district, Beth A. Bourassa, argued before the Court of Appeals that the bus driver was rightly fired as part of a zero-tolerance policy and that an arbitrator overstepped his authority in allowing the driver back on the job.
The attorney for the bus driver and her union, Daren J. Rylewicz, argued that no such zero-tolerance policy existed and that the contract was clear in allowing for lesser punishments than termination.
In her argument, Bourassa said the district and the union have agree that a positive drug test reveals a danger to the safety and welfare of students and others.
“We don’t dispute that the penalty was reviewable,” Bourassa said, “but the arbitrator had to use a rational standard.” The arbitrator should have considered only whether the bus driver tested positive, then whether there was a rational explanation. Finding no rational explanation, the bus driver should have been terminated, she argued.
Rylewicz argued that the relevant information is contained in the district’s drug and alcohol policy, which outlines disciplinary steps. “The district wants one thing, but their policy says something else,” he said.
The case concerns bus driver Cynthia DiDomenicantonio, who tested positive for marijuana use in a random drug test in October 2009. 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 finding from arbitrator James Gross and took Civil Service Employees Association 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.
A decision by the Court of Appeals is expected next month.