By JANIE SOUTHARD
& TIMOTHY COX
jsouthard@dailystandard.com
tcox@dailystandard.com
Celina City Schools board of education is involved in a civil
lawsuit over the firing of a preschool bus driver who failed
a random drug test.
The board of education last week filed a lawsuit in Mercer County
Common Pleas Court against the Ohio Association of Public School
Employees (OAPSE), Local 457, which is the union that covers
classified staff such as bus drivers, cafeteria workers and
other non-teaching staff.
The lawsuit follows a decision by board members to fire Michael
Bullock, a Head Start bus driver who failed a random drug test
and admitted to smoking marijuana. After the firing, the union
brought in an arbitrator who decided that Bullock should be
reinstated as a bus driver and said the board did not have just
cause to fire him.
Board members are asking in the suit that the arbitrator’s
decision be vacated.
School officials believe that — if allowed to stand —
the arbitration decision would limit the district’s ability
to enforce its drug-free workplace rules.
School board member Joe Bath called the arbitration decision
“ludicrous.” The decision essentially says the school
district had no just cause to fire Bullock because the district
had no proof that he was under the influence of marijuana while
driving the bus.
Arbitrator Janet Goulet’s June 7 decision also ordered
the school board to give Bullock back pay and to wipe clean
his disciplinary record regarding the positive drug test.
“It also keeps (the board) from terminating or disciplining
any employee in the future who fails a drug test. We felt we
needed to make a stand. On advice of our attorney, we authorized
him to file the case as a way of making a stand and putting
an end to this whole thing,” said Bath, vice president
of the board of education.
Board member Ken Fetters said the matter is being handled by
the school district’s attorney and declined comment on
the issue.
The difference between the board’s interpretation of the
drug policy and Goulet’s decision appear to hinge on three
words: “in the workplace.” Goulet said the school
board has no rule in place prohibiting safety-sensitive employees
from engaging in “off-duty drug and alcohol use.”
Therefore, Goulet reasoned, to fire Bullock, the school board
“must introduce evidence of impairment on the job in addition
to the positive test result.”
But the school board refused to reinstate Bullock following
the June 7 decision, paving the way for the lawsuit. The school
board’s attorney, Christian M. Williams, of the Cleveland
law firm Pepple & Waggoner, says in court filings that Goulet
failed to properly do her job as an arbitrator.
Rather than determining if Bullock violated a rule of the board
of education, Williams wrote that Goulet “instead dispensed
her own brand of industrial justice.”
Abiding by the terms of the arbitration agreement would essentially
create a new agreement between the school board and union, Williams
said. “Arbitrator Goulet exceeded her powers as arbitrator
... under Ohio law when she decided to ignore such language
and come up with her own termination standard.”
The lawsuit also charges that Goulet’s decision does not
take into account federal rules regarding commercial driver’s
license holders, who can be disciplined or fired for positive
drug tests.
Goulet is an economics professor at Wittenberg University. She
serves as an arbitrator at the request of the State Employee
Relations Board and the Federal Mediation and Conciliation Service.
Attempts by The Daily Standard to reach Goulet to discuss her
arbitration decision were unsuccessful.
Celina schools Superinten-dent Fred Wiswell is out of the office
this week and could not be reached for comment.
OAPSE Local 457 President Carol Henderson, who also is a bus
driver, did not return messages left at her home Wednesday.
The school district’s legal saga began after Bullock was
ordered on Nov. 4, 2002, to report to Gateway for random drug
testing. Four days later, Head Start Executive Director Carol
Davis was informed that Bullock’s test came back positive
for marijuana. Davis then told Bullock not to report to work
and informed him he could challenge the original test, but Bullock
declined, court records say.
At a special board meeting Nov. 25, 2002, board members terminated
Bullock based on the drug test and his own explanation at the
meeting that he “had consumed so much alcohol” the
weekend before the aforementioned drug test, that he “blacked
out and therefore did not know if he had smoked marijuana.”
Bullock, who drove routes involving 30 to 40 preschoolers, did
not deny he had smoked marijuana and did not deny the validity
of the drug screen result.
According to information culled from several Web sites, marijuana
can remain detectable in the body for 20 to 90 days, depending
on the potency of the drug and the frequency of use.
The local union’s grievance claims the termination violated
two articles of the negotiated agreement between the union and
the school board — one saying there must be written warnings
before termination and another saying drug use or possession
cannot occur “in the workplace.”
The words “in the workplace” have caused much debate
about drug testing in recent years. An April 2002 Daily Standard
story on local drug testing noted the American Civil Liberties
Union (ACLU) largely follows Goulet’s line of thinking
that a positive drug test does not necessarily mean a person
is under the influence. The argument has been the basis of several
ACLU lawsuits involving drug testing.
“Such tests are unnecessary because they cannot detect
impairment and, thus, in no way enhance an employer’s
ability to
evaluate or predict job performance,” an ACLU position
paper on the issue states.
What remains unclear about the school district’s lawsuit
is when and how school board members decided to proceed with
formal legal action.
Fetters told The Daily Standard that board members agreed to
file the lawsuit during a special meeting “a long, long
time ago.” Fetters said no one from the media or public
attended the session.
District Treasurer Mike Marbaugh, who keeps the minutes of board
meetings, said the board met in executive session with legal
counsel to discuss the arbitration issue and ongoing contract
negotiations with the union. The attorney urged action and board
members agreed by consensus, although no formal vote was held,
Marbaugh said.
“My understanding was that we were giving it over to the
attorney to deal with,” Fetters said.
Public bodies are prohibited from making decisions in private
executive sessions. They may discuss certain issues privately
but any decisions are to be made in front of the public, according
to Ohio’s Sunshine Law.
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