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Southwest Ohio Regional Transit Auth. v. Amalgamated Transit Union12/31/1998
MARIANNA BROWN BETTMAN, Judge.
This is a trio of appeals that we have sua sponte consolidated for decision due to the commonality of the key issues.
All three appeals involve Southwest Ohio Regional Transit Authority ("SORTA") employees who are members of Amalgamated Transit Union Local 627 ("the Union"). All three employees were involved in grievances that were unsuccessfully resolved and that proceeded to binding arbitration under the Collective Bargaining Agreement ("CBA") then in effect between SORTA and the Union. All three cases involve violations of the drug portion of SORTA's Drug and Alcohol Prevention Program ("the policy") promulgated February 1, 1995.
SORTA's first Drug and Alcohol Policy was promulgated in 1988. Because of changes in federal regulations that we shall discuss as pertinent, SORTA significantly changed its policy February 1, 1995, to conform to federal testing guidelines. However, SORTA did not adopt the federal discipline guidelines that allow for progressive discipline for positive test results. Under SORTA's policy, an employee who tests positive on a drug-screen test is fired.
Under the management rights provision and the operation of rules provision of the CBA, SORTA has the right to reserve certain policies to itself to promulgate unilaterally. The Drug and Alcohol Prevention Program is such a policy. The Union challenged the 1988 policy in an arbitration proceeding. Arbitrator Dissenfound that SORTA had the right to promulgate the 1988 policy unilaterally, but expressed no opinion on the reasonableness of the 1988 policy.
The Baker case involves marijuana. The test for marijuana metabolites has two parts, which for the sake of simplicity we refer to as the screening test and the confirmatory test. A positive reading on the screening test will trigger the second, more discriminating confirmatory test. For the purposes of this appeal, we will limit our analysis to the confirmatory test, because it is a positive reading on this test that results in termination.
Under the 1988 policy, a positive confirmatory test for marijuana was defined as 50 ng/ml of marijuana metabolites in a urine sample. Any lesser amount was not considered a positive test. However, under pertinent federal regulations, a result of 15 ng/ml of marijuana metabolites or more on a confirmatory test is considered a positive test. Any lesser amount is considered a trace amount, to take into account passive inhalation.
Beginning January 1, 1995, the Department of Transportation ("DOT") mandated random drug testing for all safety-sensitive employees and the reporting of all positive tests. On February 1, 1995, SORTA changed its drug policy to conform to these changes and adopted the federal regulations governing the definition of a positive drug test. Accordingly, the definition of what was considered a positive confirmatory test for marijuana under the SORTA policy was lowered from 50 ng/ml to 15 ng/ml. However, unlike the federal regulations, which have options other than firing for employees who test positive for drugs, the SORTA policy does not. Thus, under the policy, beginning in February 1995, any SORTA employee with a confirmatory test for marijuana metabolites of 15 ng/ml would be fired.
Employees were notified of the change in policy in several ways. The policy was posted and each employee was sent a letter enclosing the new policy. Training was also given on the new policy.
An employee who cannot provide a urine sample has two hours to provide a sample, starting from the time of the initial inability. The employee is given twent
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