Exxon Corp. v. Baton Rouge Oil and Chemical Workers Union

• Decision Date: 15 March 1996
• Docket Number: No. 94-30681,94-30681
• Citation: 77 F.3d 850
• Parties: 151 L.R.R.M. (BNA) 2737, 131 Lab.Cas. P 11,548, 11 IER Cases 879 EXXON CORP., Plaintiff-Appellant, v. BATON ROUGE OIL and Chemical Workers Union, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 850

77 F.3d 850

151 L.R.R.M. (BNA) 2737, 131 Lab.Cas. P 11,548,

11 IER Cases 879

EXXON CORP., Plaintiff-Appellant, v. BATON ROUGE OIL and Chemical Workers Union, Defendants-Appellees.

No. 94-30681.

United States Court of Appeals, Fifth Circuit.

March 15, 1996.

Douglas B. Neagli, Herbert E. O'Niell, Robert E. McNeal, Exxon Company, U.S.A., Houston, TX, for Exxon.

Louis L. Robein, Jr., Gardner, Robein & Urann, Metairie, LA, James D. Thomas, II, Baton Rouge, LA, for Appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before REYNALDO G. GARZA, JOLLY and DUHE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal requires us to determine whether, as a matter of national policy, the federal courts must decline to enforce an arbitrator's award that orders only backpay--not reinstatement--for an employee who was fired because of drug use, but also fired in violation of the terms of his collective bargaining agreement. The case arose from the discharge of Donald Chube by Exxon Corporation for his violation of the company's policy on alcohol and drug use. Chube worked as a supervisor in a "safety-sensitive position," and was discharged after a drug test indicated that he had used cocaine. After Exxon terminated Chube, the Baton Rouge Oil and Chemical Workers Union grieved his discharge and won an order for Chube's reinstatement and back pay. The district court affirmed the arbitrator's alternative order for reinstatement only. Exxon appeals. We reverse and render.

I

Exxon operates a chemical plant near Baton Rouge, Louisiana. The production and maintenance employees operate under a collective bargaining agreement dated March 31, 1988. Chube, who was ordinarily an operator in the olefins purification department, had been "stepped up" to a safety-sensitive classification, operations controller, in which he acted as a temporary supervisor. The record is unclear as to the permanency of this position, but it is clear that he was acting as a temporary supervisor at the time that he was drug-tested.

In 1987 Exxon revised its alcohol and drug use policy. The new policy authorized unannounced searches for drugs and alcohol on Exxon property. It also required employees to submit to alcohol and drug testing "where cause exists to suspect alcohol or drug use." A positive test result or refusal to submit to a test was grounds for disciplinary action, including termination. One year after Exxon revised its policy, the Drug-Free Workplace Act of 1988, 41 U.S.C. § 701-707, was enacted. To clarify its policies and to comply with the Act, Exxon published a list of "Posted Offenses," giving notice that an employee who committed one of the following offenses could be discharged or otherwise disciplined without notice:

a. Being under the influence of alcohol, in the opinion of a doctor, Company guard, or supervisor, on Company time or property.

b. Bringing onto Company property, or possessing or using on Company time or property, an alcoholic beverage, a habit-forming drug, or a drug which the Company believes may impair the employee's ability to perform duties in a safe and responsible manner.

c. Habitual use of an alcoholic beverage or habit-forming drug; except where the Company doctor believes that such use is necessary for the employee's health.

In early 1989, Exxon proposed to add random drug tests for a group of "designated positions" with critical safety responsibilities. Chube's job as temporary supervisor was one of these "designated positions." His permanent position as operator was not covered, however. The Union objected to the policy changes. ¹ It expressed concern that the policy did not provide for employee rehabilitation. The Union also objected that the random test policy would not give employees ample notice that they would be subject to testing. Discussions between the Union and Exxon reached an impasse. Consequently, in August 1989, Exxon unilaterally issued a Revised Alcohol and Drug Abuse Policy, which was to be effective September 1, 1989. The policy contained the following paragraph:

Exxon may conduct unannounced searches for drugs and alcohol on owned or controlled property. The Company may also require employees to submit to medical evaluation or alcohol and drug testing where cause exists to suspect alcohol or drug use. Unannounced periodic or random testing will be conducted when an employee meets any one of the following conditions: has had a substance abuse problem or is working in a designated position identified by management, a position where testing is required by law, or a specified executive position. A positive test result or refusal to submit to a drug or alcohol test is grounds for disciplinary action, including termination.

On August 24--a week before the new policy was to become effective--Chube, as an employee in a "highly sensitive position," was given a drug test, and the test was positive for cocaine use. On September 13, Exxon discharged Chube "for violating the Company's Alcohol and Drug Policy," but did not set out the precise nature of the violation. The Union filed a timely grievance on Chube's behalf, and when the matter was not resolved through the grievance process, the Union demanded arbitration. The issue stipulated for the arbitrator was whether Exxon had violated the contract when it discharged Chube and, if so, what should be the remedy.

The Union argued that, under Exxon's policies then in effect, the drug screen administered to Chube was solely to determine his eligibility to be assigned to a "designated position"; the test results could not be used for purposes of discipline because he had violated no posted rule in effect at the time of the test. Exxon responded that all employees had been given ample notice that a positive drug test would result in discharge. Furthermore, its policy was based on the obvious need to protect lives and property against possibly devastating accidents.

The arbitrator determined that the critical issue in the case was, not whether Chube engaged in the use of illegal drugs, but whether in this instance the presumed use of cocaine gave Exxon the right under the contract to discharge Chube. He concluded that Exxon violated § 1121 of the contract by discharging Chube. That section reads as follows:

1121. General

(a) The Company may discipline an employee only for cause.

(b) The Company has posted a list of offenses which merit discipline. This list is dated January 3, 1984. Before the Company may make any change in this list or any subsequent list, the change must be agreed to by the Union.

(c) If an employee commits one of the posted offenses, it is cause for discipline, and the Company may discipline him without advance notice.

(d) Even though an employee does not commit a posted offense, his conduct or work performance may still be cause for discipline. However, the Company may not discipline him without giving him advance notice, and where practicable, an opportunity to correct the situation.

The arbitrator found that, under § 1121(b), Exxon could discharge Chube "without advance notice" only if Chube committed a posted offense. He further found that Chube had committed none of the posted offenses in effect on the date of the tests; specifically, there was no evidence that he had brought drugs on company property or possessed or used drugs on company time, or habitually used a habit-forming drug. The arbitrator noted that the 1989 drug policy did not become effective until September 1, 1989, and that Chube was tested before that date. Further, and at the heart of our review today, the arbitrator rejected Exxon's argument that, notwithstanding whether Exxon breached the collective bargaining agreement, Chube's discharge was justified based on a strong public policy against the use of drugs.

The arbitrator's award required Exxon to reinstate Chube without loss of seniority, and pay him back pay and benefits, "calculated on the basis of [Chube's] permanent classification wage level." Alternatively--and only because Chube was incarcerated after his discharge for selling drugs--the arbitrator required Exxon to pay him one year's back pay in the event that Chube was still unavailable for reinstatement. ²

Exxon then instituted this suit in the United States District Court for the Middle District of Louisiana, seeking, by motion for summary judgment, to vacate the arbitration award. The Union filed a cross motion for summary judgment, seeking enforcement of the award on the remedy of back pay plus costs, and not on the remedy of reinstatement. After the district court granted the Union's motion for summary judgment and enforced the arbitrator's award, Exxon timely appealed.

II

We review a grant of summary judgment de novo. Calpetco 1981 v. Marshall Exploration, Inc., 989 F.2d 1408, 1412 (5th Cir.1993). Once a properly supported motion for summary judgment is presented, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 639, 130 L.Ed.2d 545 (1994). We review "the facts drawing all inferences most favorable to the party opposing the motion." Matagorda County v. Russell Law, 19 F.3d 215, 217 (5th Cir.1994).

Review of an arbitration proceeding is narrowly limited. A court will not disturb an award if it "draws its essence from the collective bargaining agreement" and is not based on the arbitrator's "own brand of industrial justice." United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). We may not reconsider an award based on alleged errors of fact or law or misinterpretation of the contract. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29,...