Bowen Sanders, Barbara Sanders George Howard Rhodney Cantu Joline Cantu v. Parker Drilling Company, an Alaskan Corporation , 911 F.2d 191 ( 1990 )

REINHARDT, Circuit Judge,

concurring:

I am in complete agreement with the opinion Judge Trott has authored for the Court.¹ I write separately only in order to respond to the dissent’s vehement attack on the concept of job security — a concept of fundamental importance to all of America’s working men and women. The dissent claims that the result we reach today is “so preposterous it would be laughable if it were not scary,” dissent at 215, a remarkable comment considering that the dissent not only flagrantly misconstrues an elementary legal principle in the field of employment law — specifically the meaning of “just cause,” a phrase used in most collective bargaining agreements throughout the nation for the past fifty-odd years² — but does so in “a dangerous and unprecedented way.” Dissent at 207. Under the dissent’s interpretation of just cause, “whether plaintiffs did or did not smoke marijuana was not directly relevant to the jury’s deliberations; all that mattered was whether company officials reasonably believed they had.” Dissent at 209, n. 7 (emphasis in original). As our dissenting colleague puts it, as long as Parker “reasonably believed that plaintiffs were smoking marijuana on the rig,” then it could terminate them on the basis of just cause. In short, the dissent argues unashamedly that it is entirely irrelevant whether the employees actually engaged in any misconduct which could have provided a valid reason for terminating their employment.

Were the dissent to prevail, the focus in employment law in this country would be drastically altered: the focus would no longer be on whether a violation of company policy actually occurred; it would shift entirely to an examination of the employer’s subjective state of mind. The job protection that employees have successfully bargained for since the days of Franklin Delano Roosevelt and the New Deal would disappear, to be replaced by the posing, in all potential discharge cases, of a single, radically different question: Was a supervisor’s erroneous belief that an employee violated company policy held in good faith? The actual facts of the case would become insignificant — only the employer’s mental state would matter. Thus, the dissent proposes a significant reversal of our national labor policy. With a single stroke of the pen, the dissent would effectively eliminate job security, a fundamental right that American workers have laboured long and hard to secure, and would reduce just cause to an almost meaningless concept. The dissent argues unequivocally that its interpretation of just cause should govern all employment contracts. To put it bluntly, given his druthers, Judge Kozinski would make his counter-revolution against workers’ rights uniform throughout America, irrespective of the nature of the employee’s occupation. Under the new order of affairs, in all sectors of our economy an employer’s mere good-faith suspicion would constitute a sufficient basis for terminating a worker’s employment rights.

It is not the court’s holding, but the dissent’s position which is clearly “preposterous.” The dissent’s interpretation of just cause would leave workers stripped of their basic job rights and personal security — in the future, only a thin, tenuous line would divide the employed from the unemployed. Employees could be fired, at any time, based on their employer’s good-faith but nonetheless wholly mistaken beliefs. This threat is especially ominous for older employees, trained in a particular field, who may not readily be able to find other jobs. Clearly, our dissenting colleague fails to understand that job security is the most fundamental employment right possessed by American workers. The just cause provision, when accorded its customary meaning, is crucial to an employee’s sense of personal security and stability. With the knowledge that one will not be fired unless one acts in violation of company policy, it is possible to make plans for oneself and one’s family. Workers can buy homes, schedule mortgage payments, take vacations, send their children to college, and even plan for retirement. Clearly, hard-won just cause provisions play a crucial role in promoting the confidence of America’s workers in their economic futures.

The dissent’s position here is directly contrary to a fundamental principle of labor law. It is elementary that “just cause” for discharge means that the employer must show that the employee committed an act which warrants his discharge. The employer must have a sound basis — a reasonable ground — for his decision to terminate the employee. But the employer does not have a reasonable ground if the beliefs or assumptions on which he bases his decision are incorrect. If the employer cannot prove that the employee engaged in some misconduct which constitutes cause for discharge, he does not have just cause for firing the employee. It is simply not enough for an employer to show that he was well intentioned, that his heart was pure or that if the employee had committed an improper act he would be free to discharge him. It is not enough that the employer had a mistaken belief that an employee violated some rule or that it had cause for that mistaken belief. See, e.g., Wilkerson v. Wells Fargo Bank, 212 Cal. App.3d 1217, 261 Cal.Rptr. 185, 192 (App.1989) (“an employer’s subjective belief it possessed good cause does not dispose of a wrongfully discharged employee’s claim for breach of contract. Such employee is entitled to recover for breach of contract notwithstanding the employer’s state of mind.”); Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 292 N.W.2d 880, 896 (1980) (“Where the employer claims that the employee was discharged for specific misconduct — intoxication, discharge, insubordination — and the employee claims that he did not commit the misconduct alleged, the question is one of fact for the jury: did the employee do what the employer said he did?”) In short, a termination for just cause must be based on an employee’s actual violation of company policy which warrants a dismissal.

Actually, the just cause provision contains a second component as well. The employer must not only have actual cause for discharge, but must act in good faith. It cannot use actual cause as a pretext for an unlawful or invidiously discriminatory action.³ Nor can it otherwise engage in selective enforcement of its rules.⁴ Even where actual cause exists, the employer must act fairly and equably. It is this second component which the dissent apparently believes constitutes the entire substance of the just cause provision. The dissent’s confusion is best illustrated by its discussion of the jury instructions. The dissent argues that the just cause instruction required the jury to find only that Parker had a reasonable belief that plaintiffs smoked marijuana and not that it had proven any actual misconduct on the part of the discharged employees. Dissent at 207. While the instructions are not a model of clarity, they do not say what the dissent claims they do. Instruction number 7, the just cause instruction, states:

However, if you find that the plaintiffs have proved by a preponderance of the evidence that the contract included an implied promise or agreement that Parker Drilling would terminate plaintiffs only for just cause you must then consider whether Parker Drilling has proved by a preponderance of the evidence that it had just cause to terminate the plaintiffs for violating Parker’s rules or policy prohibiting the use of drugs at its camps or on its drilling rigs. You are instructed that just cause is generally a fair and honest cause or reason, regulated by good faith on the part of the employer in light of all the facts and circumstances. If you find that the plaintiffs have proved that the contract included an implied covenant to terminate only for just cause and Parker Drilling has failed to prove that it had just cause to terminate the plaintiffs, you must then find for plaintiffs on this issue.

(Emphasis added).

Properly read, the just cause instruction requires the jury to consider two matters: first, did the employees do something for which they deserved to be discharged? Second, did the employer act in good faith, i.e. was its conduct regulated by good faith? Where the employer fails to prove the first element — that the employees’ conduct provides actual cause for discharge— the inquiry is over; it does not matter, then, whether the employer acted in good faith. That is precisely what occurred here. Parker failed to prove to the jury’s satisfaction that the plaintiffs actually smoked marijuana — and despite all the hyperbole, the dissent does not seriously contest the fact that the jury properly found that Parker did not prove its case on this point. However, as noted supra, the dissent proceeds to ignore the first issue altogether and focuses entirely on the second question — whether the employer acted in good faith. In doing so, it fails to recognize that the second question relates only to a limiting provision that does not become relevant unless the employer surmounts the first hurdle by showing improper employee conduct. Only then will it help the employer to demonstrate that it acted in good faith and not out of some unlawful or malicious motive — i.e. that the actual cause was regulated by good faith. The dissent conflates the analysis, so that part two, the subsidiary good faith element, entirely replaces part one, the heart of the just cause provision.⁵

Moreover, in the case at bar, the jury found against Parker on a second claim, breach of the duty of good faith and fair dealing. The existence of this claim for relief may have contributed to our dissenting colleague’s confusion over both the meaning of the just cause provision and the thrust of the just cause instruction. The Alaska Supreme Court has recognized two separate and distinct bases on which an employee can recover for wrongful termination. As that court has said, “[i]n Eales v. Tanana Valley Medical Surgical Group, 663 P.2d 958 (Alaska 1983), we recognized that certain employment contracts for an indefinite term were terminable by the employer only for good cause. And in Mitford v. de Lasala, 666 P.2d 1000, 1006-07 (Alaska 1983), we recognized an implied covenant of good faith and fair dealing in all at-will employment contracts. Id.” Rutledge v. Alyeska Pipeline Service Co., 727 P.2d 1050, 1056 (Alaska 1986) (emphasis added).⁶ The second of these bases, addressed in Mitford, only guarantees that employees will be treated in good faith and dealt with fairly. While that basis involves some elements that are similar to the second, and subsidiary, component of the just cause provision, the protection afforded employees under a good faith and fair dealing provision is substantially less than is provided by a just cause clause.⁷ The just clause provision is found in fewer agreements and exists only by virtue of a mutual agreement between the employer and employee, usually contained in a collective bargaining agreement, or as the result of the acceptance by an employee of a unilateral offer made by an employer.⁸ However, a just cause clause provides true job security. The good faith and fair dealing requirement, in contrast, is implied by law in all at-will employment contacts, but it only assures protection against bad faith action by the employer.⁹

The dissent’s interpretation of just cause would eliminate the distinction between the two contractual provisions recognized by the Alaska Supreme Court, and reduce the protection provided by the just cause clause to the same minimum level afforded under the good faith clause. Footnote 6 in the dissent demonstrates clearly the fundamental error in its position. Dissent at 209, n. 6. Under the dissent’s view of the “just cause” instruction, that instruction sets forth precisely “the same proposition” as the instruction on the good faith provision. Id. If that were the case, there would be no need for two separate counts and two different jury instructions-. Nor in fact would there be any need for just cause clauses at all. It is this error — the failure to recognize the existence of two distinct bases for a wrongful termination claim and the concomitant failure to recognize that just cause clauses afford far greater protection for job rights than do good faith and fair dealing provisions — which appears to lie at the heart of the dissent’s misreading of the jury instructions. The error may even explain in some part the dissent’s hostility towards the basic concept of actual cause as a necessary condition to the discharge of employees who have more than at-will relationships with their employers.

Finally, in its attempt to discredit the significance of the definition of just cause set forth in the leading just cause for discharge case, Toussaint, 292 N.W.2d 880, the dissent relies on wholly inapplicable decisions.¹⁰ Dissent at 211. The just cause principle applies when the employer fires an employee for disciplinary or retaliatory reasons, not when it is required by economic circumstances to reduce its work force. “Indeed, the Toussaint Court implicitly recognized that wrongful discharge claims must necessarily be predicated upon some concept of employee or employer ‘fault.’ ” Boynton v. TRW, Inc., 858 F.2d 1178, 1183 (6th Cir.1988). Terminations due to adverse economic conditions, where no one is “at fault,” arise in an entirely different contractual context. The rules governing layoffs — when an employer can reduce the work force and which employees must be laid off first and rehired first — are governed by seniority provisions, not just cause clauses. The reduction in force clauses constitute a wholly separate part of the collective bargaining agreement from the disciplinary sections. The dissent ignores this fundamental difference and relies on layoff cases for the principle that “courts applying Michigan law have acted to limit Toussaint by circumscribing the jury’s role.” Dissent at 211. This is simply a flagrant, although undoubtedly inadvertent, distortion of the caselaw. “Michigan’s courts have never held the Toussaint doctrine of just cause applicable to layoffs arising out of an economically mandated reduction in force.” Boynton, 858 F.2d at 1179-80. Neither have any other courts or arbitrators. The just cause doctrine has nothing to do with “no fault” reductions in force. To rely on non-just cause cases — layoff cases — for the proposition that the jury’s role in just cause cases has been circumscribed is plainly to misconceives the basic nature of the case law in this area.¹¹

Grudgingly, our dissenting colleague concedes, in the latter half of his exegesis, that despite his own personal predilections some courts may conclude that employees should be able to obtain the protections of a traditional just cause provision, i.e. one that protects them against discharge unless they have engaged in misconduct which provides cause for termination. If so, he argues, those courts should promulgate a sweeping “public policy exception.” “If we are going to read the rule of Tous-saint into Alaska law, therefore, we should temper it by including a public policy exception that takes into account the practical realities of running a dangerous business.” Dissent at 215. Any such exception, in my opinion, would constitute wholly unwarranted and unprecedented judicial legislation. It reflects a philosophy of labor-management relations and workers’ rights that is not only contrary to the prevailing national policy, (see Labor Management Relations Act of 1947, 29 U.S.C. § 151 et seq. (1990)), but also lacks any basis in constitutional, statutory or decisional law.¹² Equally important, the dissent’s proposed exception is so broad that it not only encompasses workers in fields that traditionally affect public safety — such as airline pilots and nuclear plant workers — but also those employed in industries using heavy machinery, such as auto workers, steel workers, loggers and miners. The exception for “safety-sensitive activities” would include each and every company involved in “manufacturing ... and thousands of other hazardous activities_” Dissent at 218.

Logically, under the dissent’s view, unions representing individuals working in any of these “dangerous” areas would be prohibited from negotiating collective bargaining provisions protecting innocent employees from discharge, and employers would be prohibited from offering job security guarantees to job applicants. Were Judge Kozinski’s dissent ever to become the law of the land, courts would be compelled to eliminate just cause provisions from all collective bargaining agreements covering workers employed in literally millions of jobs. All that unions and employees could freely bargain for under the dissent’s view would be an employer’s mistaken suspicions. By accepting employment on an oil rig or in a steel mill, workers would be compelled to forfeit the opportunity to require employers to prove an actual violation of a contract, policy or rule before terminating them.

If courts accepted the views of our dissenting colleague, the consequences would be staggering. Workers in numerous industries throughout the nation could no longer be assured that they would not be discharged as long as they performed their jobs properly. Speculation, whether or not later shown to be erroneous, would be sufficient as a matter of law for acts of economic capital punishment in a whole range of occupations. Standard job security provisions long in effect in almost all industries, (including those implicating safety concerns,) would be banned as a matter of public policy. A twenty-year employee, six months away from a fully-pensioned retirement, could be fired on the basis of rumor, innuendo, or unsubstantiated hearsay, even though an objective fact-finder would be required to conclude that there was insufficient proof of guilt. Any attempt to provide greater job protection, whether by negotiated agreement or the unilateral act of an employer, would be verboten.

Judge Kozinski’s view clearly does not reflect the ethos of twentieth century America, where job security is for many of our citizens, one of their most valued rights. The fundamental question is not whether a particular individual is a paper-pusher in an office or an oil rig worker, but whether that employee committed an improper act that warrants discharge. No public policy bars this wholly salutary and humane rule. The sweeping exception urged by my disenting colleague should be swiftly and firmly repudiated.

Regretfully, I must add that in addition to its disregard for traditional tenets of job security, the dissent demonstrates an equally blatant disdain for the fundamental concept of guilt and innocence. The dissent fails to acknowledge even once that the plaintiffs were innocent — and that a jury so decided. Instead, it appears to elevate the employer’s beliefs to the status of an eternal verity. If a supervisor, or presumably a United States Attorney, has reason to believe a worker is guilty, then that must be the case — and off with the worker’s head. Even the unanimous judgment of a jury that the appellants here were innocent cannot shake my colleague’s faith in employer omniscience. There is one point at which Judge Kozinski’s fundamental approach to guilt and innocence appears at its starkest. He cites a series of cases in which discharges of workers guilty of drug abuse were upheld by the courts. Dissent at 214. He then says, “similar considerations of public safety” require the same result here. Incredibly, the dissent fails even to mention the distinction that must immediately arise in the mind of any person familiar with the elementary concepts of our legal system, and would be determinative, I would hope, in the case of all fair-minded individuals. I refer, of course, to the fact that in every one of the cases cited by the dissent, the person discharged was guilty. Here, according to the jury, the employees were not. This simple distinction is one that fails to influence Judge Kozinski.¹³

There is nothing in Judge Trott’s opinion for the court which is “novel” or “unprecedented.” The only cause for alarm in today’s deliberations is the concept trumpeted in the dissent that employees should be prohibited by judicial fiat from negotiating the type of job security agreements they have enjoyed for almost sixty years. What is both novel and unprecedented is my dissenting colleague’s strident objections to the application of traditional concepts of fairness and due process in the employment arena. American workers have lab-oured long and hard for the right to be secure in their jobs if they serve their employers faithfully and well. Our courts must safeguard this important right, in order to ensure that the working men and women of this nation continue to enjoy some measure of justice and fair treatment. * # * sis sis if:

In response to the above concurrence, the dissent has appended two remarkable footnotes suggesting that the concept of just cause may be applied differently in a unionized workplace and that overriding public policy concerns may be inapplicable in that context. See dissent at 212, n. 11 & 215-16, n. 18. The two footnotes strongly imply that where a collective bargaining agreement exists an employer may have to prove that the employee is guilty of the alleged act when terminating him for just cause. They also suggest that the public policy exception for workers in “safety-sensitive” fields may be inapplicable if the work force is unionized. However, while the footnotes may give union members some hope that they, unlike their unorganized brothers and sisters, will be able to enjoy the customary benefits of job security, a careful reading of the text, and a cursory review of the applicable law, make it plain that were my dissenting colleague’s position to be adopted that hope would quickly prove illusory.

Under the lucidly and forcefully expressed philosophy of the dissent, the ultimate outcome for any employee charged with violating company policy, and certainly for those in “safety-sensitive” positions, would clearly be no different whether the employee were covered by a union contract or not. The possibility of different treatment for unionized workers suggested in the strangely paradoxical footnotes is flatly contradicted by the entire thrust and import of the dissent, as well as by clearly established law. Nothing in the text of the dissent suggests that different treatment for unionized workers would be appropriate or that unionization would lessen the omnipresent potential for “disaster” in safety-sensitive fields. Dissent at 216. Nor does anything in the text indicate any willingness to let an arbitrator, as opposed to a jury, override the “public policy exception” that Judge Kozinski believes to be essential in the case of all “safety-sensitive” positions.

More important, it is clear that the law does not permit the ephemeral distinction floated in Judge Kozinski’s rebuttal footnotes. To exempt arbitrations from my dissenting colleague’s proposed new rule would make no sense from a legal standpoint. This is apparent from the fact that in support of his novel public policy argument my colleague relies exclusively on cases involving decisions made by arbitrators pursuant to collective bargaining agreements. If, in fact, Judge Kozinski’s public policy exception were adopted by the courts, it would swiftly and surely be applied in the collective bargaining context, as well as in the case of all other contracts. The law is clear that collective bargaining agreements are subject to public policy exceptions, see dissent at 214 and there is nothing unique about the exception advocated by my dissenting colleague. As the cases he relies on demonstrate, public policy exceptions override the provisions of just cause clauses. See Delta Air Lines v. Air Line Pilots Ass’n, 861 F.2d 665, 666-68 (11th Cir.1988); Amalgamated Meat Cutters v. Great Western Food Co., 712 F.2d 122, 123-24 (5th Cir.1983); Georgia Power Co. v. IBEW, Local 84, 707 F.Supp. 531, 533-34 (N.D.Ga.1989), aff'd, 896 F.2d 507 (11th Cir.1990). For a full discussion of the topic, see Stead Motors of Walnut Creek v. Automotive Machinists Lodge No. 1173, 886 F.2d 1200 (9th Cir.1989) (en banc); 886 F.2d at 1217 (Trott, J., dissenting). Thus, no serious weight can be given to the footnotes’ effort to obfuscate the true effect of the dissent’s revolutionary proposal.

Regrettably, footnotes notwithstanding, my dissenting colleague’s thesis leads quite clearly and inevitably to certain inescapable conclusions. Under the dissent, employers would be free to terminate their employees based on mere good faith belief that the workers smoked marijuana at the work-site — whether the workplace were unionized or not. It is equally clear that as far as my dissenting colleague is concerned whether the employees actually smoked marijuana is irrelevant in all types of discharge cases. In fairness to the impassioned arguments set forth in his dissent, I cannot conclude — and I doubt that any objective reader would — that Judge Kozinski would have been satisfied with the verdict in this case had it been rendered by an arbitrator rather than by a jury. The parade of horribles, the catastrophic events that the dissent relates, the fears of drug-crazed workers punching the wrong button, all the public safety concerns (see e.g., “Plaintiffs in our case, by contrast, were engaged in work so dangerous that a single slip could easily kill a co-worker or unleash an environmental catastrophe.” Dissent at 215), surely would not evaporate into thin air simply because the just cause clause was contained in a written rather than an oral agreement.

While I appreciate the dissent’s expressed respect and regard for union contracts, I cannot agree with my colleague that a significant cause for the decline in voluntary unionization is the increased availability of judicial remedies for non-union workers.¹⁴ Dissent at 212, n. 11. Although Judge Kozinski’s thesis may have some basis in fact, a far more significant reason for the decline in union membership is the basic hostility shown by the federal government to unions, and to workers rights, in recent years. Following the example of the federal government, over the past decade private industry has engaged in unprecedented strike-breaking and other anti-labor activities, and has thereby undermined the historic vitality of labor organizations. The anti-union sentiments of recent administrations, far more than any developments relating to judicial remedies, account for the difficulties that unions face today.

On the subject of judge-made law, I believe my colleague’s effort to justify converting his own highly expansive view of “bosses’ rights” into a new national public policy for all American workers is based in part on a faulty premise. Contract law is not judge-made law. When a court finds as a matter of fact that an employer has offered his employees a just cause clause as a condition of employment and that the employees have accepted their positions in reliance thereon, that is not judge-made law. That is elementary contract law. Of course, all contracts are subject to a public policy exception; it is elementary that courts do not enforce contracts that violate public policy. But no one other than Judge Kozinski has ever suggested, as far as I am aware, that an agreement to require actual cause for discharge — actual wrongdoing — violates public policy. And whether that agreement is contained in a written collective bargaining agreement, written individual employment contract, a company policy or manual distributed to all interviewees, an oral bilateral contract, or an oral statement relied on by the worker is wholly irrelevant for the purposes before us. The judge-made law gambit is clearly just that: Either there is an overriding public policy that precludes the enforcement of contractual just cause protections in “safety-sensitive” positions or there isn’t. I repeat — until today no one has ever suggested that there is. And, I would hope that after today the suggestion will be sufficiently discredited that no one will repeat it in the years to come.

1 . I might except from this statement a portion of note 3. I am not as sanguine as Judge Trott about the recent curtailments of fourth amendment rights. "Fine-tuning” is not in my view what has been occurring. "Weakening,” "eroding” or even “gutting” would be a more accurate description. Nor do I agree that we need more debate concerning the fourth amendment. What we need is a greater sense of commitment to the fundamental constitutional principles it represents — and a resolve not to sacrifice those principles in our eagerness to combat illicit drugs, whether that eagerness stems from legitimate concerns or merely from political expediency.

2 . Generally, just cause provisions are contained in collective bargaining agreements that have been negotiated by unions. In addition, from time to time employers unilaterally promulgate such provisions, as Parker did in the case at bar. On the. special verdict forms, the jury was first asked, "Was there an employment contract between Bowen Sanders, Rodney Cantu, George Howard, and Parker Drilling which required Parker to have just cause to terminate the plaintiffs?” The jury found that a unilateral offer had been made and that, as a result, a contract existed as to all three plaintiffs. That finding has not been challenged by Parker on appeal. The jury then found that Sanders, Cantu, and Howard were terminated by Parker without just cause. This represented the first basis on which the jury awarded damages. Secondly, the jury found that in firing Sanders, Cantu, and Howard, Parker breached its duty of good faith and fair dealing to each. (This is the provision contained in all atwill contracts. See Rutledge v. Alyeska Pipeline Service Co., 727 P.2d 1050, 1056 (Alaska 1986) (citing Mitford v. de Lasala, 666 P.2d 1000, 1006-07 (Alaska 1983), discussed infra at 199.) In view of the finding on the first issue, the second finding was of no practical consequence, except as added protection for the verdict if the just cause finding were reversed on appeal.

3 . The employer could not single out a union proponent, a black, or a Libertarian for special adverse treatment. If five workers committed an identical wrongful act that provided actual cause for discharge and the employer fired only the single union supporter, barring some valid reason for punishing that individual more severely than his co-workers (such as a prior history of misconduct), the discharge would violate the second component of the just cause provision. Thus, while any such discharge might also be prohibited by federal and state statutes, it would certainly be contractually barred by the just cause provision.

4 . In the leading just cause for discharge case, Toussaint, 292 N.W.2d at 897, the court said, "an employer who only selectively enforces rules or policies may not rely on the principle that a breach of a rule is a breach of the contract, there being in practice no real rule."

5 . Even with respect to the second component, the dissent errs seriously. A reasonable jury certainly could have concluded that Parker’s conduct was not regulated by good faith because Parker made its decision to discharge the plaintiffs on the basis of flimsy circumstantial evidence (see note 11 infra), because contrary to its usual practice it failed to set forth the reason for the discharge in the termination notice, and because it threatened to "blackball" or bar the plaintiffs from working on the North Slope of Alaska if they challenged the termination. Thus, the jury could have based its just cause determination on Parker’s failure to meet the test set forth by the second — the good faith —component. In fact, the reasons just noted may well also explain why the jury reached the conclusion that Parker acted in bad faith when it found against the company on the second claim for relief. See discussion in text immediately following signal.

6 . See also Knight v. American Guard & Alert, Inc., 714 P.2d 788, 792 (Alaska 1986) (“The latter two claims express breach of contract theories which we have previously recognized as enforceable causes of action. See Eales v. Tanana Valley Medical Surgical Group, 663 P.2d 958 (Alaska 1983) (certain employment contracts can be terminated only for good cause); Mitford v. de Lasala, 666 P.2d 1000, 1006-07 (Alaska 1983) (good faith covenant is implicit in at-will employment contract.)”)

7 . “Where the employee has secured a promise not to be discharged except for cause, he has contracted for more than the employer’s promise to act in good faith or not to be unreasonable. An instruction which permits the jury to review only for reasonableness inadequately enforces that promise." Toussaint, 292 N.W.2d at 896.

8 . The unilateral offer may be contained in a company manual or policy statement and be of general applicability, Jones v. Central Peninsula General Hospital, 779 P.2d 783, 786-87 (Alaska 1989) (citing Toussaint, 292 N.W.2d 880, with approval), or it may be made on a case-by-case basis.

9 . In this case, the jury found, based on instruction number 9 — an entirely separate instruction from the just cause instruction — that Parker breached its duty of good faith and fair dealing as to each of the plaintiffs. That finding was of course independent of the finding that Parker violated the just cause provision. Thus, as I indicated in note 2 supra, the jury’s just cause finding is bolstered by its finding of a discrete violation of an entirely different clause.

10 . In its less than ten year history, Toussaint has been cited with approval by the courts of at least 38 states, and in at least 19 federal courts of appeals decisions.

11 . In spite of its position that reasonable suspicion constitutes just cause for discharge, the dissent implies at some points that Parker had more than enough evidence to prove that appel-lees conducted themselves in a manner that warranted discharge, "Parker Drilling obtained no fewer than three eyewitness reports that plaintiffs were using drugs on the job before firing them. To wait any longer or look any closer would have been reckless.” Dissent at 209. While the primary points of contention between the majority and the dissent are issues of law, I should point out that there are egregious mistakes in the dissent’s presentation of the facts as well. In truth, Parker had a very weak case, and when it made its discharge decision, it relied on circumstantial evidence that plaintiffs were smoking marijuana without obtaining persuasive evidence that they had in fact done so. At the time of termination the case developed by Parker against the employees was based largely on the signed statements made by Bill Reynolds and Joe Watkins on February 23, 1983. Reynolds related an incident which had allegedly occurred eight months earlier, when he saw Sanders and Cantu go up into the "mud shack,” where the chemical level of the mud was tested. Reynolds, who was outside the shack, claimed to have observed Sanders, who was inside, approach the window of the shack with what appeared to be a joint in his hands. When he went up to investigate, Reynolds noticed an aroma but did not find marijuana in Sanders' or Cantu’s possession or anywhere in the room. Parker' viewed this as significant evidence even though the employee working and living in the mud shack at the time stated in his deposition that he never saw plaintiffs smoking marijuana nor smelled the presence of marijuana in the shack.

The second written statement, by Joe Watkins, referred to an incident that allegedly occurred six months prior to the inspection tour. Watkins allegedly saw Howard retrieve a bag from a hiding place "under the camp,” but at no time did Watkins specifically identify the substance in the bag. Four days later, he observed Howard and Cantu enter the exercise room, and after smelling what he believed to be marijuana smoke come out of the window, he quickly walked into the room to surprise them. The surprise was Watkins’; for, he did not see Howard or Cantu smoking marijuana nor did he see the substance on their persons or anywhere in the exercise room.

Further investigation consisted of a brief conversation between Coven Chapman, a former roommate of Howard and Cantu, and Gary McCarrell, the Division Manager, at the Anchorage Airport. Significantly, Parker Drilling conceded that its primary evidence was so weak that it could not have fired the three employees without this additional evidence. And what did this additional evidence consist of? When asked why he moved out of the room he shared with Howard and Cantu, Chapman responded that it was too noisy and that there was too much traffic in the room. He also made vague references to other problems. However, in no way did he say directly that he had witnessed the three plaintiffs smoking marijuana. Although two months later he executed a post facto affidavit stating that he had seen his fellow employees smoking marijuana, earlier at the time of the Labor Board hearing, Chapman specifically testified that at the airport he did not tell McCarrell that plaintiffs were using drugs. The other individual confronted at the airport refused to discuss the matter with company representatives.

On the basis of the above information, Parker decided to terminate the three plaintiffs. Clearly, this circumstantial evidence was far from conclusive. In any event, all of the evidence Parker introduced at the trial was directly controverted by the testimony of plaintiffs’ witnesses, and the jury was free to believe whichever set of witnesses it chose. The inconsistency in Chapman’s stories was undoubtedly a factor the jury considered.

12 . The public policy exception Judge Kozinski purports to rely on is entirely different in nature. On occasion, some courts have invoked public policy to preclude an arbitrator from reinstating to a particular safety position an employee who has been proved to have acted recklessly in his performance of that job. Public policy has never been invoked to preclude reinstatement of an employee who has been adjudged innocent of the alleged misconduct by the finder of fact. Most important of all, as far as I am concerned, no court has ever suggested that any tenet of public policy precludes enforcement of a just cause clause in any area of employment. See discussion infra at 202.

13 . Since, under the dissent’s interpretation, guilt or innocence appears to be secondary to safety considerations, Judge Kozinski’s arguments regarding safety concerns could just as easily be advanced as a justification for imprisoning persons whenever the government believes in good faith th^t they are guilty of an offense or pose a threat to the safety of other citizens. The dissent's approach, whether urged by a prosecutor in a criminal case or proclaimed by a judge as a matter of national policy in a civil case, is clearly inconsistent with the basic tenets of our judicial system and the American Constitution.

14 . Nor, although I appreciate Judge Kozinski's concern for the rights of individual workers, am I persuaded by the Wall Street Journal, see dissent at 217, that protecting individual workers’ rights will in the long run hurt all workers.