Exxon v. Esso Worker's ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2241
EXXON CORPORATION,
Plaintiff, Appellant,
v.
ESSO WORKERS' UNION, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Douglas
B.
Neagli, with whom Michael J. Liston, Glass, Seigle
& Liston, Patrick J. Conlon, and Joseph T. Walsh, III were on
brief, for appellant.
Warren M. Davison, Mark A. de Bernardo, Nancy N. Delogu, and
Littler, Mendelson, Fastiff, Tichy & Mathiason, P.C. on brief for
Institute for a Drug-Free Workplace, amicus curiae.
Nathan S. Paven, with whom Paven & Norton were on brief, for
appellee.
July 8, 1997
SELYA, Circuit Judge. This appeal tests the margins of
an
arbitrator's ability to order the reinstatement, into a safety-
sensitive
job, of an employee who has failed a reliable drug test.
After painstaking reflection, we conclude that a well defined and
dominant
public policy encourages employers to develop, establish,
and
enforce
programs to prevent their employees from attempting to
perform safety-sensitive work while under the influence of
narcotics
or
other
intoxicants. Moreover, once an employer has set
such a program in place, it countermands public policy if courts
too readily rescue employees who fail to satisfy programmatic
standards from the predictable consequences of such violations.
Hewing to this line, we refuse to enforce the arbitral award of
which plaintiff-appellant Exxon Corporation (Exxon) complains.
I. BACKGROUND
The facts are essentially undisputed. Exxon operates a
fuel terminal in Everett, Massachusetts and employs several truck
drivers to supply petroleum to service stations and airports
throughout New England. Exxon's nemesis, the Esso Workers' Union
(the Union), appellee here, represents most of these drivers.
Exxon
and
the Union entered into a collective bargaining agreement
(the
CBA)
in
February
1990. The CBA establishes inter alia a five-
step
employee grievance procedure culminating in final and binding
arbitration.
Part
11
of
the
CBA
covers employee discipline. Its first
section
provides
that
Exxon "shall post a list of offenses which it
deems serious," and its second section provides that Exxon "may
2
discharge or otherwise discipline" any employee who commits a
posted offense. The second section also stipulates that any
employee
who
believes his suspension or discharge is without "just
cause" may pursue a grievance.
An
appendix
to
the
CBA
catalogs the posted offenses. The
list includes the following:
6. Alcohol Beverage/Habit-Forming or Illegal
Drug or Any Dangerous Substance
a. Being under the influence of an
alcoholic beverage or drug on
Company time or property. Testing
positive on a drug test or refusal
to submit to a drug test.
b. Bringing onto Company property,
or possessing, or using on Company
time or Company property, an
alcoholic beverage, illicit or
unprescribed controlled substance,
or
any
dangerous substance which the
Company believes may impair the
employee's ability to properly
perform duties in a safe and
responsible manner.
Exxon
has
implemented
a
comprehensive drug-free workplace
program (the DFW program), embodied in a formal policy statement
and the aforementioned list of posted offenses. The policy
statement declares in part:
Exxon Corporation is committed to a safe,
healthy, and productive workplace for all
employees. The Corporation recognizes that
alcohol, drug, or other substance abuse by
employees
will impair their ability to perform
properly
and
will have serious adverse effects
on
the
safety, efficiency, and productivity of
other
employees and the Corporation as a whole
. . . . Being unfit for work because of use
of
drugs
or
alcohol is strictly prohibited and
is grounds for termination of employment.
3
Exxon's program is carefully tailored to meet the goals of the
Drug-Free
Workplace
Act
of 1988 (the DFW Act), 41 U.S.C. SS 701-707
(1994). Exxon has made the program's terms available to all
employees; the program encourages employees voluntarily to report
drug and alcohol problems; and the company not only provides
rehabilitative services to employees who come forward, but also
promises that "[n]o employee . . . will be terminated due to the
request for help in overcoming that dependency or because of
involvement in a rehabilitation effort."
Exxon's program reflects the company's recognition that
drug use during the performance of safety-sensitive tasks poses a
significant
threat to co-workers and to the public. Therefore, it
subjects employees in these positions to random drug testing. In
that regard, the program puts Exxon's work force on notice of the
company's intention to conduct "[u]nannounced periodic or random
[drug]
testing" of employees who are working in certain designated
safety-sensitive jobs.
Albert
A.
Smith, a veteran Exxon employee, works in such
a
designated
position.
He is responsible for loading, driving, and
unloading
a
five-axle
tractor-trailer combination which, when fully
loaded,
carries 12,000 gallons of highly flammable motor fuel. He
typically drives this rig through many of New England's more
densely populated areas. Exxon requires employees who occupy
designated
safety-sensiti
ve positions and Smith's is plainly such
4
a position h
igned
such
a
statement
in 1989, thereby attesting that he had read
and understood the parameters of Exxon's DFW program, that he was
1 to sign so-called compliance statements. Smit
s
not abusing alcohol or drugs, and that he was amenable to random
drug testing.
On
August
21,
1990,
Smith reported for duty. Without any
forewarning, Exxon directed him to take a drug test. Smith
submitted to the test and apparently drove his regular route that
day. The test results were obtained the following week; they
revealed that Smith had cocaine in his bloodstream when tested.
Although the test results could not indicate when Smith had used
the cocaine or whether he had performed his job while still under
its pernicious influence, Exxon decided that Smith posed a threat
to public safety and fired him.
The Union grieved Smith's ouster. The grievance
culminated in arbitration. The parties put two questions to the
arbitrator:
(1)
Did
Exxon have just cause to discharge Smith? (2)
If
not,
what
is the appropriate remedy? In September of 1992, the
arbitrator found the results of the drug test to be reliable but
nonetheless decided that Exxon wrongfully terminated Smith's
employment. The arbitrator acknowledged that Part 11 of the CBA
gave Exxon the right to discharge Smith for committing a posted
1In an earlier, unrelated case which involved a hauler who,
like Smith, failed a random drug test, we described a somewhat
similar
job
as
entailing
"work of a kind where, one suspects, there
might be old practitioners, and there might be bold practitioners
but
there
would likely be few (if any) old, bold practitioners."
Jackson v. Liquid Carbonic Corp., 863 F.2d 111, 112 (1st Cir.
1988).
5
offense, but he reasoned that this right was subject to Part 11's
"just
cause"
provision. Concluding that dismissal was too extreme
a
punishment,
the
arbitrator settled upon a two-month suspension as
an appropriate disciplinary measure, to be followed by Smith's
reinstatement if he passed a contemporaneous drug test.
Exxon balked at the arbitrator's award and sued in
federal district court to set it aside. The parties cross-moved
for summary judgment. The lower court granted the Union's motion
and affirmed the arbitral award. Unyielding in its commitment to
prevent Smith from getting behind the wheel of a petroleum truck,
Exxon appeals. Our review of the district court's legal
conclusions is plenary. See Prudential-Bache Securities, Inc. v.
Tanner, 72 F.3d 234, 237 (1st Cir. 1995).
II. PRINCIPLES AFFECTING JUDICIAL REVIEW
Collective bargaining agreements are designed to
memorialize the terms and conditions of employers' relationships
with
their
unionized
employees. These agreements typically contain
grievance procedures that designate arbitration as the final
dispute-resolution mechanism. "In such cases . . . courts play
only a limited role when asked to review the decision of an
arbitrator." United Paperworkers Int'l Union v. Misco, Inc., 484
U.S. 29, 36 (1987). In large part, that role is ordained by the
fact that "[i]n labor arbitration, matters of contract
interpretation are typically for the arbitrator, not for a
reviewing court." El Dorado Technical Servs., Inc. v. Union
General De Trabajadores, 961 F.2d 317, 319 (1st Cir. 1992). As
6
long as the arbitrator is arguably interpreting the CBA, a court
cannot
second-guess his decision. See id. (citing Misco, 484 U.S.
at 38); Dorado Beach Hotel Corp. v. Union De Trabajadores De La
Industria
Gastronomica,
Local 610, 959 F.2d 2, 3-4 (1st Cir. 1992).
In such purlieus, a court's task ordinarily is limited to
determining
whether
the
arbitrator's construction of the collective
bargaining agreement is to any extent plausible. See Misco, 484
U.S. at 36-38.
Policy
spins
this
web
of
rules. Judicial deference to an
arbitrator's
contract
interpretation furthers "[t]he federal policy
of settling labor disputes by arbitration [which] would be
undermined
if courts had the final say on the merits of [arbitral]
awards."
Uni
ted Steelworkers v. Enterprise Wheel & Car Corp., 363
U.S.
593,
596 (1960). Through the medium of the CBA, the employer
and the union bargain for the arbitrator's interpretation, and a
federal court must respect that bargain. See W.R. Grace & Co. v.
Local Union 759, Int'l Union of United Rubber Workers, 461 U.S.
757, 765 (1983). It follows, therefore, that a court should not
tamper with an arbitral award "unless it can be shown that the
arbitrator acted in a way for which neither party could have
bargained." Local 1445, United Food & Commercial Workers Int'l
Union v. Stop & Shop Cos., 776 F.2d 19, 21 (1st Cir. 1985).
Public policy, however, has its own imperatives and
they occasionally conflict with the imperatives of contract
interpretatio
n. It is a fundamental rule that courts must refrain
from enforcing contracts that violate public policy. Collective
7
bargaining agreements are simply a species of contracts and, as
such,
are
not
immune
from the operation of this rule. "As with any
contract . . ., a court may not enforce a collective-bargaining
agreement
that
is
contrary to public policy." W.R. Grace, 461 U.S.
at 766; accord Misco, 484 U.S. at 42-43. Because this refusal to
enforce
contracts
which
offend public policy is inured in judicial
tradition,
the
question
of what public policy demands is within the
judicial, not the arbitral, domain. See Misco, 484 U.S. at 43;
W.R. Grace, 461 U.S. at 766.
III. ANALYSIS
In the district court, Exxon argued for reversal of the
arbitral
award
on
two
grounds: first, that the arbitrator exceeded
his authority; and second, that the award violates public policy.
The district court rejected both arguments. See Exxon Corp. v.
Esso Worker's Union, Inc., 942 F. Supp. 703 (D. Mass. 1996).
Because courts ought not trespass unnecessarily into the
uncertainties
of the public policy terrain, we begin by discussing
Exxon's more case-specific argument.
A. The Arbitrator's Authority.
The key to this issue lies in Part 11 of the CBA. One
section
of
Part 11 provides that Exxon "may discharge or otherwise
discipline" employees who commit posted offenses "may," in this
context, "means has a right to," according to the definition
contained
in
the CBA and another section provides that employees
may challenge discharges which Exxon has imposed without "just
cause."
Exxon asseverates that the arbitrator should have equated
8
the "right to discharge" language with the "just cause" language;
because
Exxon reserves the right to discharge employees who commit
posted offenses, this thesis runs, it perforce has just cause to
discharge such employees.
But
the
arbitrator
teased another meaning out of Part 11.
He
concluded
that
the
language which permits Exxon "to discharge or
otherwise discipline" an employee who commits a posted offense
furnishes
Exxon
with
a
range of disciplinary options, and that this
range
is
in
turn subject to an independent application of the just
cause
barometer. On this reading of Part 11, the arbitrator ruled
that
Exxon
did not have just cause to cashier Smith merely because
he tested positive for drugs.2
Although Exxon's interpretation of the CBA may be
somewhat
less strained, judges have no roving writ to construe the
contract language in the way that they think best. Rather, a
2According to the arbitrator:
just cause standard requires that the
prove by the preponderance of th
The
Company e
evidence that the employee committed the
offense and that the level of discipline was
warranted
.
In this case the Company's actions
were automatic: if an employee in a
designated position tests positive, s/he is
terminated.
The Company's presumption is that
the employee is a danger to public safety and
the
only
remedy is to excise that danger. The
Company's self-imposed narrowness in its
choice of remedy fails to meet the just cause
standard. There was no evidence that Company
drivers had any record of dangerous driving
due to ingesting illicit drugs. In the case
of Smith, there was no record of any
discipline or any signs or indications of a
drug-related problem during his nearly twenty
years with the Company. [Emphasis supplied.]
9
court's proper province is to determine whether the arbitrator's
reading is plausible, albeit not the reading the court might
choose.
See
El Dorado, 961 F.2d at 320 ("When the language of the
underlying contract, taken in context and with due regard for the
surrounding circumstances, is fairly susceptible to differing
meanings, a reviewing court must not meddle with the arbitrator's
rendition."). In this instance, the arbitrator's interpretation
survives that indulgent scrutiny.
The proof of the pudding is found in Crafts Precision
Indus., Inc. v. Lodge No. 1836, Etc., 889 F.2d 1184 (1st Cir.
1989). There, the employer had dismissed an employee for
insubordination. The CBA listed insubordination as "one
``example[]' of conduct [that] may result in suspension, or
immediate
discharge," and also included a clause reserving for the
employer
the
exclusive
right to discipline employees. Id. at 1184-
85.
In
a
refrain that echoes the argument which Exxon makes here,
the
employer
argued
that
these two clauses, in conjunction, gave it
an
absolute
right to discharge an employee for insubordination and
urged the arbitrator to equate this right to discharge with the
CBA's
"just
cause"
provision. The arbitrator interpreted the right
to discharge as distinct from just cause to discharge and instead
reinstated the employee. On appeal, we upheld the award because
the challenged language was open to several interpretations, and
the
arbitrator's
position reflected one such (plausible) iteration.
See id. at 1185. Because Crafts is a fair congener, precedent
compels
us
to conclude that the arbitrator's interpretation of the
10
disputed language here is within the pale and that the arbitrator
did not exceed his authority in this respect.
B. Public Policy.
Exxon's second claim of error can most usefully be
discussed in three segments.
1.
Framing
the Inquiry. Misco is the watershed case in
respect to judicial review of an arbitration award which is
challenged on public policy grounds. There, the company employed
Cooper as a night-shift machinist whose duties involved the
operation of a dangerous piece of equipment. One night, police
arrested
him
in the company parking lot, having discovered him "in
the backseat of [a] car with marijuana smoke in the air and a
lighted
marijuana
cigarette in the frontseat ashtray." 484 U.S. at
33. The company then fired him for breaking its rule against
possession of illicit drugs on business premises. The union
grieved Cooper's discharge, and an arbitrator ordered his
reinstatement. The company sued and the federal district court
annulled the award based on public policy. The Fifth Circuit
affirmed, holding that Cooper's reinstatement "would violate the
public policy ``against the operation of dangerous machinery by
persons under the influence of drugs or alcohol.'" Id. at 35(quoting 768 F.2d 739, 743 (5th Cir. 1985)).
The Supreme Court reversed, ruling that a court may set
aside
an
arbitrator's
award on public policy grounds only when "the
contract
as
interpreted
would violate ``some explicit public policy'
that is ``well defined and dominant.'" Id. at 43 (quoting W.R.
11
Grace, 461 U.S. at 766). Neither common sense nor "general
consideration
s of supposed public interests" are suitable vehicles
for identifying public policy; rather, courts must glean public
policy from laws and legal precedents. Id. (quoting W.R. Grace,
461 U.S. at 766). Because the lower courts had predicated their
perceptions
of
public
policy on intuition rather than positive law,
the judgment could not stand.
Misco
teaches that, though courts may set aside arbitral
awards which contravene public policy, they may do so only in a
narrow class of cases, marked by a special set of circumstances.
See
id.
at
43. To determine whether a particular case fits within
the confines of this class, courts must employ a two-tiered
analytic approach. First, since a generalized sense of public
policy provides an insufficient basis upon which to annul an
arbitral award, an inquiring court must review existing statutes,
regulations, and judicial decisions to ascertain whether they
establish a well defined and dominant public policy. If positive
law
does
not
give rise to such a policy, the inquiry is at an end.
See
id.
at
43-44. If, however, the court finds that such a policy
exists, it must then proceed to the second step of the pavane and
determine
whether
the
arbitral award clearly violates the discerned
public policy.3 See id. at 44.
3The Misco Court provided an apt illustration of how the
second-stage inquiry operates. It noted that, even assuming the
existence of the public policy perceived by the court of appeals,
reinstating Cooper did not necessarily frustrate that policy
because there was no showing that Cooper had used marijuana while
on
the
job.
The
Court
thought that "the assumed connection between
the marijuana gleanings found in Cooper's car and Cooper's actual
12
2.
Identifyi
ng the Public Policy. There is a plenitude
of positive law to support the existence of a well defined and
dominant
public policy against the performance of safety-sensitive
jobs
while
under the influence of drugs or other intoxicants. See
Gulf
Coast
Indus. Workers Union v. Exxon Co., 991 F.2d 244, 252-53
(5th Cir. 1993) (collecting cases). Gulf Coast itself is a
representativ
e case. There, the court set aside an arbitral award
which proposed to reinstate in a safety-sensitive position an
employee who had tested positive for drug use after admitting to
his
employer
that he had a drug problem but representing (falsely,
as matters turned out) that he was obtaining treatment and
abstaining from substance abuse. The court amply illustrated the
proposition that numerous statutes, regulations, and judicial
opinions "pronounce the emphatic national desire to eradicate
illicit
drugs
from
the
workplace," particularly in safety-sensitive
occupations.
Id. at 250; see also Exxon Corp. v. Baton Rouge Oil,
77 F.3d 850, 855-56 (5th Cir. 1996) (again finding a well defined
and dominant public policy against the performance of safety-
sensitive jobs while under the influence of drugs).
The Third Circuit has addressed the same issue in a
trilogy of cases (all featuring an employer related to the
appellant here). In Exxon Shipping Co. v. Exxon Seamen's Union,
993 F.2d 357 (3d Cir. 1993) (Exxon I), the court invoked public
policy
in
refusing to enforce an arbitral award which directed the
use of drugs in the workplace is tenuous at best and provides an
insufficient basis for holding that his reinstatement would
actually violate the [perceived] public policy." 484 U.S. at 44.
13
employer to reinstate a helmsman who had tested positive for drug
use after his ship ran aground. Id. at 364. The court relied in
part on a series of Coast Guard regulations, declaring them to be
"part of a broader public policy against operation of common
carriers under the influence of drugs," and found that policy
adequately
evinced
by
an
array of drug-testing regulations. Id. at
361-62 (citing 14 C.F.R. part 121, Appendix I (1992) (Federal
Aviation Administration drug-testing program); 49 C.F.R. part 219
(1991) (Federal Railroad Administration drug-testing program); 49
C.F.R. part 391 subpart H (1991) (Federal Highway Administration
drug-testing program)).
In Exxon Shipping Co. v. Exxon Seamen's Union, 11 F.3d
1189 (3d Cir. 1993) (Exxon II), the court continued on the same
course. It set aside as contrary to public policy an arbitral
award
reinstating
an
employee who reported to work inebriated. The
court declared "that an owner or operator of an oil tanker should
not be compelled to reinstate to a ``safety-sensitive' position an
individual who has been found to be intoxicated while on duty on
that vessel." Id. at 1194. Finally, in Exxon Shipping Co. v.
Exxon
Seamen's Union, 73 F.3d 1287 (3d Cir.), cert. denied, 116 S.
Ct. 2515 (1996) (Exxon III), the court reinstated an employee who
had
refused
to submit to a drug test, finding that the CBA did not
require the employee to take the test. Even then, the court
reaffirmed its earlier finding that there exists a "broad public
policy against permitting an individual to operate a vessel while
under the influence of drugs or alcohol." Id. at 1292.
14
This chorus has many voices. Several other courts
likewise
have identified a well defined and dominant public policy
against the performance of safety-sensitive jobs by persons under
the influence of intoxicants. Thus, in Union Pacific R.R. Co. v.
United Transp. Union, 3 F.3d 255, 262 (8th Cir. 1993), the court
used public policy as a lever to set aside an arbitral award
reinstating a railroad brakeman who had tested positive for drug
use after a switching accident. The court had "no difficulty in
concluding that there exists a well-defined and dominant public
policy against a railroad's employment of individuals whose
impaired judgment due to the use of drugs or alcohol could
seriously threaten public safety." Id. at 261. Similarly, in
Delta
Air
Lines,
Inc.
v.
Air Line Pilots Ass'n Int'l, 861 F.2d 665,
674 (11th Cir. 1988), the court defenestrated an arbitral award
presuming to reinstate a pilot who had flown an aircraft while
obviously
drunk.
The
court described this as a "rare example of an
award the enforcement of which would violate clearly established
public policy which condemns the operation of passenger airliners
by
pilots
who
are
under
the influence of alcohol." Id. at 671. By
like token, the district court in Georgia Power Co. v.
International Bhd. of Elec. Workers, Local 84, 707 F. Supp. 531,
538-39 (N.D. Ga. 1989), aff'd, 896 F.2d 507 (11th Cir. 1990),
recognized the public policy against performance of safety-
sensitive jobs by persons under the influence of drugs and set
aside an arbitral award aimed at reinstating an employee who had
tested positive for drug use.
15
We
agree
with
these
courts. In our judgment, society has
achieved a broad national consensus that persons should not be
allowed to endanger others while laboring under the influence of
drugs. This consensus is made manifest by positive law and
translates
into
a
well
defined and dominant public policy indeed,
a
national
crusade
counselling against the performance of safety-
sensitive tasks by individuals who are so impaired.
One subset of this policy is that persons who are under
the influence of narcotics or other intoxicants should not be
permitted
to
operate commercial vehicles on public highways. This
conclusion is fortified by our knowledge that the legislatures of
those states through which Smith must drive a petroleum tanker-
truck have uniformly criminalized the operation of motor vehicles
by persons who are under the influence of alcohol or controlled
substances. See Mass. Gen. Laws Ann. ch. 90 S 24(1)(a)(1) (West
1997)
(criminalizing the operation of "a motor vehicle while under
the influence of intoxicating liquor, or of marijuana, narcotic
drugs,
depressants or stimulant substances"); R.I. Gen. Laws S 31-
10.3-31(a) (1996) (making it "illegal for any person driving any
commercial motor vehicle . . . to operate or control any such
vehicle while under the influence of alcohol, drugs, toluene, or
any
other
[controlled]
substance"); id. S 31-27-2(a) (criminalizing
the
driving
of "any vehicle . . . while under the influence of any
intoxicating
liquor,
drugs, toluene, or any controlled substance");
Conn.
Gen.
Stat.
Ann.
S
14-227a(a) (West 1997) (similar); N.H. Rev.
Stat. Ann. S 265:82 (I)(a) (1995) (similar); Vt. Stat. Ann. tit.
16
23, S 1201(a) (1995) (similar); Me. Rev. Stat. Ann. tit. 29-A, S
2411(1) (West 1996) (similar).
We find further evidence of this policy in Congress'
enactment in 1991 of the Omnibus Transportation Employee Testing
Act (the Testing Act), now codified in 49 U.S.C. S 31306 (1994).
The Testing Act instructs the Secretary of Transportation to
promulgate regulations "that establish a program requiring motor
carriers to conduct preemployment, reasonable suspicion, random,
and
post-accident
testing of operators of commercial motor vehicles
for the use of alcohol or controlled substances." Id. S
31306(b)(1)(A
). In response, several Department of Transportation
agencies have promulgated regulations designed to promote the
public policy against performance of safety-sensitive tasks by
persons who use drugs. For example, the Federal Aviation
Administration has devised a program which requires preemployment
drug testing as well as periodic drug testing of employees in
safety-sensitive positions. See 14 C.F.R. Part 121, Appendix I
(1996). The Coast Guard has promulgated regulations in order "to
minimize
the
use
of
intoxicants by merchant marine personnel and to
promote a drug free and safe work environment." 46 C.F.R. S
16.101(a)
(1996). The Federal Railroad Administration has adopted
regulations crafted to "prevent accidents and casualties in
railroad operations that result from impairment of employees by
alcohol or drugs." 49 C.F.R. S 219.1(a) (1996). The Federal
Transit
Administration's regulations now require each recipient of
a subsidy "to implement an anti-drug program to deter and detect
17
the use of prohibited drugs by covered employees." 49 C.F.R. S
653.3 (1996). Last, but surely not least, the Federal Highway
Administration's regulations have been tailored "to help prevent
accidents
and injuries resulting from the misuse of alcohol or use
of
controlled substances by drivers of commercial motor vehicles."
49 C.F.R. S 382.101 (1996).
Congress'
strongest statement against the performance of
safety-sensitive tasks while under the influence of drugs is
embodied
in
the DFW Act, which instructs federal agencies to award
contracts
or
grants only to those employers who promise to provide
a drug-free working environment by: (1) publishing a statement
informing employees that use of drugs is prohibited in the
workplace; (2) establishing a "drug-free awareness program;" (3)
providing employees with drug counseling and rehabilitation
services; (4) adopting and imposing penalties on employees who
violate the terms of the "drug-free awareness program;" and (5)
furnishing employees with copies of the employer's statement
against on-the-job drug use. 41 U.S.C. SS 701(a)(1), 702(a)(1).
At
this
point
in
American history, few elements of public
policy command the consensus that attaches to the policy against
the use of controlled substances by those whose work potentially
imperils others. Judicial decisions, agency regulations, and
legislative
enactments combine to form a solid phalanx of positive
law evidencing a well defined and dominant public policy against
the
performance
of
safety-sensitive tasks while under the influence
of
drugs.
Thus,
Exxon
has satisfactorily negotiated the first step
18
of the public policy pavane.
3. The Interface. Confirming the existence of a well
defined and dominant public policy is only half the battle. To
abandon an arbitral award as contrary to public policy, a court
must find that the award clearly violates the identified policy.
See Misco, 484 U.S. at 43; Prudential-Bache, 72 F.3d at 241. In
this instance, the Union contends that, even if there is a
cognizable public policy against the performance of safety-
sensitive
work
by
individuals who are under the influence of drugs,
reinstating Smith would not insult such a policy because there is
no
evidence
that
Smith
was in the grip of cocaine while driving his
petroleum truck. According to the Union, the positive result of
Smith's
random
drug
test
"merely" indicates the presence of cocaine
in
his
bloodstream; it does not necessarily signify that Smith was
under
the
influence of the narcotic either at the time of the test
or at the time he drove his rig.4
The
Union
casts this argument so narrowly that it misses
the mark. Relying upon job-relatedness as the sole determinative
factor in permitting employers to discharge employees who test
positive
for
drug use would force employers to wait for some other
consequential
indication
that drugs are affecting work performance.
4Altho ugh the arbitrator found that the drug test reliably
indicated
the
presence
of cocaine in Smith's system (a finding that
the Union does not contest on appeal), the test results could not
pinpoint when Smith was under the drug's influence. This
uncertainty arises from the fact that the manner in which cocaine
metabolizes within a person's body depends upon a myriad of
factors, many of which (e.g., the potency and purity of the drug
ingested, the drug-user's tolerance, food consumption, and
psychological condition) were not known to Exxon.
19
Typically, this other indication will be an accident. See, e.g.,
Union Pacific, 3 F.3d at 256-57; Exxon I, 993 F.2d at 358-59;
Amalgamated
Meat
Cutters, Local Union 540 v. Great W. Food Co., 712
F.2d 122, 123-24 (5th Cir. 1983). The notorious mishap involving
the Exxon Valdez, which produced vast environmental devastation,
highlights the core problem associated with this "wait-and-see"
approach. If we have learned anything from such catastrophes, it
is that employers must act affirmatively to avoid drug-related
accidents
rather than wait passively for such accidents to happen.
We conclude, therefore, that the well defined and
dominant
public
policy
which we have identified does not require an
employer
to
await the occurrence of an accident before discharging
an employee who tests positive for drug use. In this sense, the
public policy is not as closely cabined as the Union implies. It
is the Union's failure to recognize this aspect and, thus, to
appreciate the full breadth of the discerned public policy that
is fatal to its argument and crucial to our decision.
The pertinent public policy dictates not only that
employees
refrain
from
performing safety-sensitive jobs while under
the influence of drugs, but also that employers develop (and
enforce) programs designed to discourage such activity. This
added
dimension is most apparent in the DFW Act and in the Testing
Act. The impact of the latter statute is made manifest by the
proliferation of governmental regulations which mandate regular
drug testing for employees in safety-sensitive positions. See,
e.g., 14 C.F.R. Part 121, Appendix I (1996) (codifying Federal
20
Aviation Administration's drug-testing program); 46 C.F.R. SS
16.101-16.500 (1996) (codifying Coast Guard's chemical testing
program); 49 C.F.R. SS 219.1-219.715 (1996) (limning Federal
Railroad Administration's drug-testing procedures); 49 C.F.R. SS
653.1-653.83 (1996) (delineating Federal Transit Administration's
drug-testing procedures); 49 C.F.R. SS 382.101-382.605 (1996)
(describing, inter alia, Federal Highway Administration's drug-
testing procedures). This statutory and regulatory mosaic bears
witness that the same public policy which countervails the
performance
of safety-sensitive tasks while under the influence of
drugs also encourages (and, in some cases, requires) employers to
implement and enforce drug-free workplace programs which include
mandatory drug testing of those in safety-sensitive posts.
Consistent with this enhanced understanding of the
discerned public policy, we hold that forcing an employer to
reinstate an employee who tests positive for drug use pursuant to
a test that the employer administers as part of a drug-free
workplace program would undermine that policy. It makes no sense
to construe public policy as encouraging and in some cases
mandating employers to establish and enforce drug-testing
programs,
yet to preclude them from taking decisive action against
those employees who test positive.
The Union warns that this holding is wholly
unprecedented.
But
the
demands of public policy are dynamic rather
than static. Modern society's widespread recognition of, and
increasingly
aggressive response to, the growing drug problem is a
21
harbinger
that
public
policy may make progressively greater demands
on
industry.
Moreover,
the Union's claim that we are blazing a new
trail is not entirely accurate.
At least two recent cases track the expanding public
policy on which we rely. These cases note, albeit in dicta, that
employers
must not be compelled to reinstate personnel who violate
the
terms
of
a
comprehensive drug-free workplace program. In Baton
Rouge
Oil,
the Fifth Circuit reversed as contrary to public policy
an
arbitral
decision awarding back pay to an employee in a safety-
sensitive position who had tested positive for cocaine during a
random drug test. The court held that allowing the employee to
collect
back
pay
would
contravene public policy despite the absence
of
any
evidence that he actually had performed his job while drug-
impaired.
See
Baton
Rouge Oil, 77 F.3d at 856. In so holding, the
court noted the absurdity of reinstating such an employee:
It is undisputed that Chube [the employee]
occupied a safety-sensitive position. It is
also
undisputed that Chube tested positive for
cocaine
use
while occupying that position, and
thereby endangered the safety of other
employees. We think that the public policy
exception . . . must be read not only to
prohibit the prospective placement of an
employee into a position where he is a danger
to his company and to fellow employees (i.e.,
order
of
reinstatement into a safety-sensitive
position), but also to prohibit a
retrospective approval of the conduct . . . .
Id.The Third Circuit echoed these sentiments in Exxon III
while
upholding an arbitral award which reinstated an employee who
refused
to
take
a
drug
test. The court premised this ruling on the
22
arbitrator's conclusion that, under the terms of the collective
bargaining agreement, the company lacked cause to insist upon a
drug test. See Exxon III, 73 F.3d at 1295-96. En route to this
determination, however, the court observed that "[a] clearly
defined and cautiously administered program of drug testing . . .
is the natural corollary to . . . a strong public policy that
precludes
allowing
intoxicated or drug-impaired seamen to remain in
safety-sensit
ive positions aboard oil tankers." Id. at 1294. The
court went on to proclaim that the "right to test employees for
alcohol or drug use . . . is critical to achieving the objective"
of preventing drug-impaired individuals from performing safety-
sensitive
jobs. Id. The court's ensuing discussion left no doubt
that,
if
a
drug
test
was
validly requested, reinstating an employee
who boycotted it would undermine public policy. See id. at 1294-
95.
Baton Rouge Oil and Exxon III reinforce the proposition
that
a
comprehensive and finely-tuned DFW program which includes a
drug-testing
component
is a natural corollary to the ringing public
policy
against performance of safety-sensitive jobs by individuals
who
are
under the influence of narcotics or other intoxicants. It
follows
that,
if
an
employer elects to establish such a program and
properly preserves its right of implementation in the collective
bargaining agreement, thwarting the employer's efforts to enforce
the
program's standards would countervail the basic public policy.
The Union intimates that the public policy we have
identified,
if it persists at all, can be vindicated by some other
23
disciplinary
measure,
short of termination. This intimation misses
the
construed,
would insult public policy for a court to enforce a contract that
a worker who has scorned the employer's drug-free workplace
program.5
This
case
is
emblematic of the proposition. In terms of
public policy, it would be grossly counterproductive to impede
Exxon's
efforts
at
fully
implementing its DFW program by forcing it
to reinstate an employee who blatantly violated the program's
terms.
Indeed, Smith's utter disregard for Exxon's DFW program is
point. The arbitrator has said in effect that the CBA
properly requires Exxon to reinstate Smith and it
requires the ongoing employment in a safety-sensitive capacity of
one
feature
which distinguishes this case from Misco.6 Unlike the
employer in Misco, Exxon maintains a comprehensive DFW program
which
is
delicately
calibrated to further the public policy against
job performance while under the influence of drugs and other
5
,
Moreover, the alternative remedy selected by the arbitrator
a two-month suspension, followed by a one-time drug test does
not hold out much promise for the safety of either the public or
Smith's fellow employees. Smith's failed drug trust evinces his
inability
or
unwillingness to conform to the strictures of the DFW
program. If he were returned to a safety-sensitive position, as
the arbitrator suggests, there would be no sound reason for
believing that the leopard had changed his spots.
6
Another
distinguishing feature is temporal in nature. Misco
arose out of an incident that occurred in January 1983. Judicial
review did not end until the Supreme Court spoke in 1987. Here,
however, Smith failed the drug test in the summer of 1990, and
judicial review is still ongoing. As our discussion of the
emerging
public
policy
reveals, see text supra, Misco predates both
the Testing Act and the DFW Act. This chronological reality
highlights
the broader fact: public policy in respect to drugs in
the workplace has matured greatly in the decade since Misco was
decided.
24
intoxicants. Smith transgressed the terms of this program three
times over: failing to report his drug use to Exxon, falsely
representing that he abjured illicit drugs, and testing positive
for drug use. Given this threefold violation, Exxon acted
reasonably
in selecting discharge as the most appropriate means of
eliminating the threat that Smith poses to the public. In the
bargain,
Exxon's action was also a necessary means of ensuring the
integrity of its DFW program. Forcing Exxon to reinstate, into a
safety-sensitive position, an employee who lacks any meaningful
commitment to its DFW program would hamstring its well-directed
attempts to implement public policy.
The Union tries to retrieve yet one more arrow from its
quiver.
Under
the
terms
of its DFW program, Exxon treats employees
who test positive for drug use more harshly than employees who
voluntarily come forward and reveal that they are experiencing
problems. During oral argument, the Union attempted to distort
Exxon's distinction between these two types of employees by
suggesting that, since Exxon does not discharge the latter (i.e.,
employees who voluntarily report drug abuse), it lacks sufficient
reason
to
discharge
the
former (i.e., employees who are "caught" by
random drug testing).
This argument is deeply flawed. Exxon encourages
employees
to
report
their drug use so that the company can transfer
such
workers
to
jobs
that do not implicate public safety while they
undergo rehabilitation. These employees do not pose a threat to
the public because, by reporting their drug abuse, they provide
25
Exxon with the opportunity to implement safety precautions. The
actions
of
these
employees are radically different from the actions
of employees who, like Smith, attempt to conceal their drug use.
These duplicitous employees pose a real and serious threat: by
failing
to
report
their
problem, they deny Exxon the opportunity to
take precautions to safeguard the public. On this basis, we
believe
it
is
reasonable
and fully consistent with the identified
public
policy for Exxon to offer a measure of job security as an
incentive for voluntary reporting, while cutting all ties with
employees
who do not accept the incentive and who subsequently are
caught.
We
need
go
no
further.
Because Smith thumbed his nose at
Exxon's DFW program, his reinstatement clearly would violate the
well defined and dominant public policy against performance of
safety-sensitive jobs while under the influence of drugs. Hence,
the federal courts must refuse to enforce the arbitral award.
Reversed.
26