Exxon Corp. v. Esso Workers' Union, Inc.

• Decision Date: 05 May 1997
• Docket Number: No. 96-2241,96-2241
• Citation: 118 F.3d 841
• Parties: 155 L.R.R.M. (BNA) 2782, 134 Lab.Cas. P 10,040 EXXON CORPORATION, Plaintiff, Appellant, v. ESSO WORKERS' UNION, INC., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 841

118 F.3d 841

155 L.R.R.M. (BNA) 2782, 134 Lab.Cas. P 10,040

EXXON CORPORATION, Plaintiff, Appellant, v. ESSO WORKERS' UNION, INC., Defendant, Appellee.

No. 96-2241.

United States Court of Appeals, First Circuit.

Heard May 5, 1997.

Decided July 8, 1997.

Douglas B. Neagli, Baytown, TX, with whom Michael J. Liston, Glass, Seigle & Liston, Boston, MA, Patrick J. Conlon and Joseph T. Walsh, III, Florham Park, NJ, were on brief, for appellant.

Warren M. Davison, Baltimore, MD, Mark A. de Bernardo, Nancy N. Delogu, and Littler, Mendelson, Fastiff, Tichy & Mathiason, P.C., Washington, DC, on brief, for Institute for a Drug-Free Workplace, amicus curiae.

Nathan S. Paven, Quincy, MA, with whom Paven & Norton, Braintree, MA, were on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

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 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.

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. §§ 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-sensitive positions--and Smith's is plainly such a position ¹--to sign so-called compliance statements. Smith signed such a statement in 1989, thereby attesting that he had read and understood the parameters of Exxon's DFW program, that he was 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 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, 108 S.Ct. 364, 370, 98 L.Ed.2d 286 (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 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, 108 S.Ct. at 370-71); 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, 108 S.Ct. at 369-71.

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." United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (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, 103 S.Ct. 2177, 2182-83, 76 L.Ed.2d 298 (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 interpretation. It is a fundamental rule that courts must refrain from...