Exxon Shipping Co. v. Exxon Seamen's Union

• Decision Date: 19 May 1993
• Docket Number: No. 92-5145,92-5145
• Parties: 143 L.R.R.M. (BNA) 2312, 1993 A.M.C. 1817, 61 USLW 2764, 125 Lab.Cas. P 10,703 EXXON SHIPPING COMPANY, Appellee, v. EXXON SEAMEN'S UNION, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 357

993 F.2d 357

143 L.R.R.M. (BNA) 2312, 1993 A.M.C. 1817,

61 USLW 2764,

125 Lab.Cas. P 10,703

EXXON SHIPPING COMPANY, Appellee, v. EXXON SEAMEN'S UNION, Appellant.

No. 92-5145.

United States Court of Appeals Third Circuit.

Argued Dec. 3, 1992.

Decided May 19, 1993.

Howard A. Goldberger (argued), Schneider, Goldberger, Cohen, Finn, Solomon, Miceli, Leder & Montalbano, Cranford, NJ, for appellant.

Douglas B. Neagli, (argued), Exxon Co., U.S.A., Houston, TX and Richard R. Cerbone, Carlin, Maddock, Fay & Cerbone, Florham Park, NJ, for appellee.

Before: SCIRICA, ALITO and LEWIS, Circuit Judges.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

The Exxon Seamen's Union appeals seeking enforcement of an arbitration award that ordered Exxon Shipping Company to reinstate a helmsman terminated for a positive drug test taken after his ship ran aground. The district court granted summary judgment to the company, vacating the arbitration award as a violation of public policy. 788 F.Supp. 829 (D.N.J.1992). We will affirm.

I.

On April 7, 1989, the Exxon Wilmington, a 635-foot oil tanker, ran aground in the Mississippi River in Louisiana. After the accident, under Coast Guard regulations and Exxon's Alcohol and Drug Use Policy, Exxon tested the captain, pilot, and helmsman for drugs and alcohol. Because the Coast Guard and Exxon use different screening levels, two sets of tests were conducted by two different laboratories.

Helmsman Morris Foster tested negative at the Coast Guard screening level but positive for marijuana at Exxon's Drug Policy screening level. ¹ A confirmatory test corroborated the positive result. On the confirmatory test, Foster registered 31 ng/ml under the GCMS method. Exxon's expert testified this test would be comparable to a reading of nearly 100 ng/ml on the EMIT test because the GCMS test registers only 20-30% of the total cannabinoids. Finding Foster's positive test a violation of its Drug Policy, Exxon fired Foster.

Exxon's Drug Policy was contained in its collective bargaining agreement. Management added the policy to the agreement on April 1, 1988 after reaching an impasse in negotiations with the Union. The Union did not file a grievance or an unfair labor practice challenging inclusion of the Drug Policy in the agreement. Exxon notified its employees of the Drug Policy in two letters, dated March 29, 1988 and September 27, 1988. Foster does not dispute he received the letters.

Disputes under the collective bargaining agreement are resolved through a grievance procedure that culminates in arbitration. The Union filed a grievance protesting Foster's discharge. Eventually, the matter was submitted to arbitration. On March 13, 1991, two years after the accident, the arbitration board unanimously found Foster had violated Exxon's Drug Policy. Indeed, the board stated that Foster's use of drugs had been "conclusively establish[ed]," but concluded termination was an excessive penalty. It ordered Exxon to reinstate Foster without back pay and directed the company to subject Foster to random drug tests for one year.

The board's decision turned largely on its construction and application of two paragraphs in Exxon's Drug Policy. Paragraph 1 provides that "use, possession, distribution or sale of illicit or unprescribed drugs on Company business or premises is strictly prohibited and is grounds for termination." Paragraph 4 provides that "[t]he Company also has a right to require employees to submit to medical evaluation or alcohol and drug testing where cause exists to suspect alcohol or drug misuse. A positive test result or refusal to submit to a drug test is grounds for disciplinary action, including dismissal."

The arbitrators found Foster had not violated Paragraph 1 because there was no evidence he had used or possessed drugs on company business or premises. They noted Foster joined the ship from vacation nine days before the testing and credited testimony by Exxon's expert that an individual might be expected to test positive for marijuana fifteen days after using it. The board found Exxon had not met its burden of proving that Foster used marijuana on the ship. The board found Foster violated Paragraph 4, because the accident combined with Coast Guard regulations requiring post-accident drug testing gave Exxon cause to test Foster, and because his positive test was a violation of that paragraph. In so finding, the board noted the company was free to set testing levels lower than those set by the Coast Guard.

In concluding termination was an excessive penalty, the board stressed the differences between the language of paragraphs 1 and 4. Whereas a violation of paragraph 1 was "grounds for termination," a violator of paragraph 4 was subject to discipline "including dismissal." The board interpreted this language to mandate termination for a paragraph 1 violation but to permit discretion to impose termination or a lesser penalty for a paragraph 4 violation. The board indicated it chose the lower penalty of suspension because there was no evidence Foster was impaired while at work, the Company failed to prove Foster used drugs at work, Foster passed the Coast Guard drug test, the company test, which he failed, had a low, although not unreasonable, screening level and termination would not further the goals of the Drug Policy, which it characterized as prevention and rehabilitation.

Exxon brought suit in the United States District Court for the District of New Jersey to vacate the arbitration award as violating public policy and moved for summary judgment. ² Granting Exxon's motion, the district court identified a strong public policy against having "drug users operate commercial vessels." 788 F.Supp. at 843. The court derived this policy principally from the Coast Guard drug testing regulations.

The court held the board's reinstatement of Foster violated this public policy. 788 F.Supp. at 843-45. It concluded that reinstatement would undermine "the public policy underlying efforts to keep drug users from operating commercial vessels," would subvert Exxon's Drug Policy, would condone illegal activity, and would insufficiently deter drug use by other employees in safety-sensitive jobs. The court emphasized the board's failure to require rehabilitation for Foster and his failure to request rehabilitation. It also noted the board did not expressly find Foster would no longer use drugs or that such a possibility was remote. The Union appealed.

II.

A.

We have jurisdiction over the district court's grant of summary judgment under 28 U.S.C. § 1291. We exercise plenary review of the district court's grant of summary judgment and apply the same standard the district court should have applied in reviewing the arbitration award. Stroehmann Bakeries v. Local 776, Int'l Brotherhood of Teamsters, 969 F.2d 1436, 1441 (3d Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 660, 121 L.Ed.2d 585 (1992). That standard is narrow, reflecting a preference for arbitration expressed in federal labor laws and a desire to promote the benefits of labor arbitration--speed, flexibility, informality, and finality. Penntech Papers, Inc. v. United Paperworkers Int'l Union, 896 F.2d 51, 53 (3d Cir.1990). As a general rule, we must enforce an arbitration award if it was based on an "arguable" interpretation and/or application of the collective bargaining agreement, and may only vacate it if there is no support in the record for its determination or if it reflects a "manifest disregard of the agreement, totally unsupported by principles of contract construction...." News America Publications v. Newark Typographical Union, Local 103, 918 F.2d 21, 24 (3d Cir.1990).

Under an exception to this rule, we may vacate an arbitration award if it violates a "well-defined and dominant" public policy, which we must "ascertain[ ] by reference to the laws and legal precedents and not from general considerations of supposed public interests...." W.R. Grace & Co. v. Local Union 759, Int'l Union of Rubber Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983). Once we identify a public policy, we must determine whether the arbitrator's award, as reflected in his interpretation of the agreement, violated that policy. Id.; United Paperworkers Int'l Union v. Misco, 484 U.S. 29, 43, 108 S.Ct. 364, 373, 98 L.Ed.2d 286 (1988). In making that determination, we may not "second-guess[ ] the arbitrator's fact-finding, particularly insofar as the conclusion that the asserted public policy would be violated by the employee's reinstatement depends on drawing factual inferences not made by the arbitrator." United States Postal Serv. v. Nat'l Ass'n of Letter Carriers, 839 F.2d 146, 148 (3d Cir.1988).

B.

Exxon's primary contention is that the arbitration award violates public policy. ³ A critical source of public policy here is the Coast Guard regulations under which Foster was tested for drugs. 46 C.F.R. part 16 (1991). The parties disagree over the scope of the public policy expressed in the regulations. The Union contends the regulation embodies a policy prohibiting drug use by seamen while on duty, while Exxon argues it reflects a policy prohibiting the employment of seamen who use drugs on- or off-duty.

We believe the parties' dispute misses the mark. The distinction between on- and off-duty use is of limited value here because Foster falls neatly into neither category. He tested positive on-duty for marijuana use that may have occurred off-duty. More importantly, this distinction obscures the goal of the public policy embodied in the regulations--safe operation of vessels. In furtherance of this goal, the regulations require drug testing and authorize the imposition of stiff penalties on employees like Foster who fail drug tests. Through testing and penalties, the regulations seek to deter employees from operating vessels with impaired faculties. Whether an employee uses drugs on- or off-duty is relevant only to the...