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APPEAL No. C-930423
September 28, 1994, Entered
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.

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. n1 When the grievance process failed to resolve the dispute, the matter proceeded to binding arbitration. n2 In a two-to-one decision, the arbitrator sustained the grievance and ordered Patmon reinstated with back pay ("arbitration award").

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n1 The CBA in question was effective during the period between January 8, 1991, and January 7, 1994.

n2 The arbitration panel is composed of three members, one designated by the Union, one by SORTA and a chair selected by alternate strikes of the parties. In this case, counsel for each of the respective sides also acted on behalf of the Union and SORTA as arbitrators. The chair was Dr. Myron L. Joseph of Pittsburgh. Since he heard the evidence and made all the decisions, we will hereafter refer to the "arbitrator" in the singular, meaning chairman Joseph.

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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:

2. Positive urine or blood test - confirmation will be done by testing facility. All samples will be handled through the chain of custody process. The following test results will subject employee to disciplinary action:

a. Alcohol - .05 or above in the blood.

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, 98 L. Ed. 2d 286; United Steelworkers of America v. American Mfg. Co. (1960), 363 U.S. 564, 80 S.Ct. 1343, 4 L. Ed. 2d 1403; United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 80 S.Ct. 1347, 4 L. Ed. 2d 1409;

United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 80 S.Ct. 1358, 4 L. Ed. 2d 1424.

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 (once it is determined that the arbitrator's award draws its essence from the collective-bargaining agreement and is not unlawful, arbitrary or capricious, a reviewing court's inquiry for purposes of vacating an arbitrator's award is at an end).

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, 76 L. Ed. 2d 298, 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 interpreted 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 public-policy grounds, the Court in Misco found that generalizations about safety were not enough to establish public policy. See, also, Bd. of Cty. Commrs. v. Kimball & Assoc. (C.A.6, 1988), 860 F.2d 683, 686, certiorari denied, 494 U.S. 1030, 110 S.Ct. 1480.

Ohio law has recognized the right of its courts to refuse to enforce an arbitrator's award in a slightly different fashion from that articulated in W.R. Grace and Misco, supra. The legislature, in R.C. 2711.10, codified reasons which allow a trial court to vacate an arbitration award. Pertinent to this case is 2711.10(D), which provides that a court may vacate an arbitration award if "the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." Case law holds that an arbitrator exceeds his or her power when the arbitrator's award fails to draw its essence from the collective-bargaining agreement. It is crucial, therefore, in deciding this appeal, to ascertain the meaning of "fails to draw its essence from the collective-bargaining agreement."

In Mahoning Cty. Bd. v. Mahoning Cty. TMR Educ. Assoc. (1986), 22 Ohio St.3d 80, 488 N.E.2d 872, paragraph one of the syllabus, the court held that an arbitrator's award draws its essence from a collective-bargaining agreement

"when there is a rational nexus between the agreement and the award, and where the award is not arbitrary, capricious, or unlawful."

In Ohio Off. of Coll. Barg. v. Civil Serv. Emp. (1991), 59 Ohio St.3d 177, 572 N.E.2d 71, the court, in its syllabus, held that "an arbitrator's award departs from the essence of a collective bargaining agreement when: (1) the award conflicts with the express terms of the agreement, and/or (2) the award is without rational support or cannot be rationally derived from the terms of the agreement."

In addition to these principles of labor arbitration is a generally accepted principle in Ohio that a contract which is against public policy will not be enforced. Gugle v. Loeser (1944), 143 Ohio St. 362, 55 N.E.2d 580.

Critical here is the determination of whether the arbitration award draws its essence from the agreement, as the Union urges, or whether it exceeds the arbitrator's authority because it fails to draw its essence from the agreement and violates public policy as SORTA urges.

Because the Program is not actually a part of the collecive-bargaining agreement, this court asked the parties to brief separately the issue of whether the arbitrator, in interpreting the Program, is interpreting the collective-bargaining agreement. From the supplemental briefs of the parties, the court is satisfied that SORTA had the right to promulgate the Program pursuant to the observance-of-rules clause under Section 26(a) of the CBA. n3 This court thus holds that the arbitrator must interpret the Program in order to interpret the "just cause" provision of the CBA. As stated in United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L. Ed. 2d 1409:

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n3 The right of SORTA to promulgate this program was itself arbitrated and found to be allowed under this section of the agreement in the Dissen award dated March 7, 1990.

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The labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law--the practices of the industry and the shop--is equally a part of the collective bargaining agreement although not expressed in it. See, also, Elkouri & Elkouri, How Arbitration Works, (4 Ed.1987) 96-117.

The arbitrator in this case was dealing with two different issues--SORTA's right to have Patmon retested and Patmon's firing based on his second set of test results.

As far as the first test, the one for his biennial physical, Maurice Patmon tested at a level four times over the permissible limit for a driver of a common carrier at 8:15 in the morning on a day he picked for this test. The test is given every two years and the employee can pick the time and date in advance. The arbitrator found that this was not "unusual behavior" sufficient to justify a second test.

When Patmon was re-tested, he had actually been driving a bus, presumably with members of the public on board. Those test results were .088 GR/DL, double the permissible limits under state and federal law for drivers of common carriers. See Ohio Adm.Code 4901:2-5-02; Sections 391.15 and 392.5, Title 49, C.F.R.

The court in Misco, supra, cautioned the lower courts that in refusing to accept an award on public-policy grounds, not to rely on "general considerations of supposed public interests," but to spell out well-defined, explicit policies referenced to laws and legal precedents. Misco, 484 U.S. at 44, 108 S.Ct. at 374.

This contract, as interpreted by the arbitrator, violates the long-standing duty imposed upon common carriers of passengers which has remained in effect for many decades. A carrier of passengers is bound to exercise the highest degree of care to ensure the safety of its passengers that is consistent with the practical operation of the line. Dietrich v. Community Traction Co. (1964), 1 Ohio St.2d 38, 203 N.E.2d 344; Interurban Ry. & Terminal Co. v. Hancock (1906), 75 Ohio St. 88, 78 N.E. 964; Rahman v. Greater Cleveland Regional Transit Authority (June 2, 1994), Cuyahoga App. No. 66166, unreported. Furthermore, Ohio has specifically adopted the Federal Motor Carrier Safety Regulations, which in pertinent part strictly prohibit driving a commercial motor vehicle with a blood-alcohol concentration of .04 GR/DL or more. Ohio Adm.Code 4901:2-5-02; Section 391.15, Title 49, C.F.R.

In regard to public policy, while it may be obvious, it certainly bears repeating that there is a difference between an employee endangering only himself or herself, see, e.g., Misco, supra, and, as here, an employee endangering members of the general public. Indeed, it is beyond any debate that in recent years there has been heightened awareness of the problems of drinking and driving, and the havoc this problem can cause to innocent people. We join those courts which have overturned an arbitrator's award of reinstatement on public-policy grounds where the safety of the general public is involved. See the excellent analysis set forth in Exxon Shipping Co. v. Exxon Seamen's Union (N.J. 1992), 801 F.Supp. 1379, affirmed (C.A.3, 1993), 11 F.3d 1189. See, also, Delta Air Lines, Inc. v. Air Line Pilots Ass'n, Internatl. (C.A.11, 1988), 861 F.2d 665, 666-68 (award which reinstated pilot who flew while intoxicated was struck down); Iowa Elec. Light & Power Co. v. Local Union, 204 of Internatl. Bhd. of Elec. Workers (C.A.8, 1987), 834 F.2d 1424, 1427-30 (vacating, for public-policy reasons, arbitrator's reinstatement of nuclear power plant employee discharged for violating safety regulations); Amalgamated Meat Cutters, Local Union 540 v. Great Western Food Co. (C.A.5, 1983), 712 F.2d 122, 125 (reversing arbitrator's reinstatement of over-the-road truck driver who drank liquor while on duty). It is also worth mentioning that in cases where public policy was found not to have been violated where matters of public safety were involved, specific conditions were placed by arbitrators on reinstatement of employees, such as completion of drug rehabilitation programs, or meeting recertification requirements. See, e.g., Northwest Airlines, Inc. v. Airline Pilots Ass'n. Internatl. (C.A.D.C.1987), 808 F.2d 76. We find it very significant, as did the court in Exxon Shipping Co, supra, that the arbitration award in this case was an unconditional reinstatement, not requiring any successful rehabilitative efforts for the driver before he was allowed behind the wheel of a bus again.

We thus hold that the interpretation of the agreement in this case by the arbitrator violates public policy, and that the award fails to draw its essence from the agreement because there is no rational nexus between the agreement and the award.

Mahoning Cty Bd, supra; Ohio Off. of Coll. Barg., supra.

Accordingly, the judgment of the trial court vacating the arbitration award in this case is affirmed.



This cause having been heard upon the appeal, the record filed herein, briefs, and arguments and Upon consideration thereof, it is the Order of this Court that the judgment of the trial court is affirmed for the reasons set forth in the Decision filed herein and made a part hereof.

And the Court, being of the opinion that there were reasonable grounds for this appeal, allows no penalty.

It is further Ordered that costs be taxed in compliance with App. R. 24, that a copy of this Judgment with a copy of the Decision shall constitute the mandate, and that said mandate shall be sent to the trial court for execution pursuant to App. R. 27.

Exceptions noted.