Misco, Inc. v. United Paperworkers Intern. Union, AFL-CIO, AFL-CIO

• Decision Date: 19 August 1985
• Docket Number: No. 84-4727,AFL-CIO,84-4727
• Parties: 120 L.R.R.M. (BNA) 2119, 103 Lab.Cas. P 11,615 MISCO, INC., Plaintiff-Appellee v. UNITED PAPERWORKERS INTERNATIONAL UNION,, and Quachita Local 654, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 739

768 F.2d 739

120 L.R.R.M. (BNA) 2119, 103 Lab.Cas. P 11,615

MISCO, INC., Plaintiff-Appellee v. UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-CIO, and Quachita Local 654, Defendants-Appellants.

No. 84-4727.

United States Court of Appeals Fifth Circuit.

Aug. 19, 1985.

Robert H. Urann, Metairie, La., Mark M. Brooks, United Paperworkers Intern. Union, Nashville, Tenn., for defendants-appellants.

A. Richard Gear, Monroe, La., for plaintiff-appellee.

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

Before GEE, TATE, and HIGGINBOTHAM, Circuit Judges.

GEE, Circuit Judge:

In today's case we review a determination by the district court that the award of an arbitrator contravenes well-defined public policy and hence should not be enforced.

In the course of an opinion perhaps most kindly described as whimsical, ¹ the arbitrator noted the following facts, among others, as established by the evidence that he heard. The employer's plant, where grievant Cooper worked, had a drug and drinking problem. The night shift in particular, of which Cooper was a member, had experienced problems with production and accuracy not encountered by the day shift. At an employee meeting called for the purpose, the employer had emphasized its strong policy against possession or use of drugs or alcohol on its premises. Cooper was aware of the employer's long-standing rule against bringing such substances onto plant premises or consuming them there.

Cooper's job was to operate an unusually dangerous machine called a slitter-rewinder, which cuts rolling coils of paper by means of sharp blades and which had caused numerous injuries. Operating such a machine with judgment and coordination impaired by substance abuse creates a safety hazard to the operator and to other employees. Cooper had been twice reprimanded for shoddy, inattentive work--the very type the employer believed might be attributable to such abuse--the last time on the day before the events leading to his discharge.

On the day in question, January 21, 1983, police searched Cooper's home under a warrant, finding several bags of marijuana, marijuana cigarettes, cigarette papers, and a weighing scale. While this was being done, another police officer had Cooper's automobile under surveillance on the plant parking lot. About 6:30 p.m., during shift working hours, Cooper and two companions came out of the plant and two or more of the three entered Cooper's car momentarily. The three then walked a short distance to another car and entered it. Some time later, the other two men returned to the plant, leaving Cooper sitting in the back seat of the car. He was apprehended there by police, with marijuana smoke in the air and a lighted marijuana cigarette in the front-seat ash tray.

Cooper refused to say who had been with him in the car, persistently denied that he had been using the drug--although found breathing its smoke--and at the arbitration hearing testified falsely under oath (so the arbitrator found) that he had not been in the car when apprehended but standing elsewhere in the parking lot. A search of his own car on the lot revealed a plastic scales case containing marijuana residue, although the employer did not know this last when it discharged him. On these facts, unaccountably reciting that "the Company has not proved by any level of evidence that the Grievant was in violation of the [substance abuse] Rule," the arbitrator directed the reinstatement of Cooper with full back pay, seniority, and so forth. ² The district court, in main reliance on our decision in Amalgamated Meat Cutters v. Great Western Food Co., 712 F.2d 122 (5th Cir.1983), set aside the arbitrator's award as against well-defined public policy--the Louisiana law against possession of marijuana and the public policy, embodied in the employer's rule, against introduction of drugs into the work place and consequent operation of dangerous machinery by persons under their influence.

In Amalgamated Meat Cutters, a driver who admitted having been drinking had wrecked his employer's truck and was consequently discharged. The arbitrator, in an award reminiscent of the one we contemplate today, ordered his reinstatement because the employer failed to disprove to his satisfaction the driver's claim that equipment failure caused the wreck. As the district court noted, speaking of Amalgamated in its opinion in today's case:

The district court enforced the arbitrator's award and the Fifth Circuit reversed. The basis of the appellate court's ruling was that the arbitrator's award violated "the public policy of preventing people from drinking and driving...." Amalgamated Meat Cutters, supra, at 125. The court specifically found that the policy was sufficiently well defined and definite because the policy against drunk driving is "embodied in the case law, the applicable regulations, statutory law, and pure common sense...." Id. In reaching this decision, the court noted:

In a nation where motorists practically live on the highways, no citation of authority is required to establish that an arbitration award ordering a company to reinstate an over the road truck driver caught drinking on duty violates public policy. Alcohol impairs a person's coordination, and inhibits his ability to reason rationally. Ingestion of alcohol slows the reflexes. It induces drowsiness. It slows response time to external stimuli. It dulls the senses. In recognition of alcohol's undisputedly debilitating characteristics, every state in the union prohibits driving while under its influence. A driver who imbibes the spirits endangers not only his own life, but the health and safety of all other drivers. These considerations are convincing enough with respect to drivers of automobiles. They become even more compelling when the driver is regularly employed to course the highways in a massive tractor-trailer rig.

Id. at 124.

The same can be said of the intoxicating effects of marijuana. Similarly, an operator of a dangerous piece of industrial equipment can be said to present the same danger to himself and to his co-employees as an operator of a tractor-trailer rig does to fellow motorists. The Union argues that Amalgamated Meat Cutters can be distinguished from the instant case in that the truck driving employee admitted having consumed alcohol before the wreck. It is true that Cooper has consistently denied using or bringing marijuana onto Misco's premises; nonetheless, the arbitrator's findings of fact clearly indicate that the brown plastic case found in Cooper's car contained marijuana. Notwithstanding this fact, and the inferences to be drawn from it, the arbitrator still found that Cooper should be reinstated. It is true that the company did not know of the officer's discovery until shortly before arbitration began, but the real issue in this case is not when the company learned of the incident, but whether reinstatement is appropriate at this point.

We agree with Judge Stagg that Amalgamated Meat Cutters controls this case. In it we held that whether or not the wreck in question was caused by the driver's admitted consumption of spirits on the job, "[t]o enforce the arbitrator's award in this case, an award which compels the reinstatement to driving duties of a truck driver who admittedly drank while on duty, would violate ... public policy." 712 F.2d at 125. Thus the employer's procedural omission to rule out mechanical failure as the proximate cause of the wreck simply did not matter.

In today's case, although Cooper denied it, the arbitrator found that--contrary to Cooper's untruthful testimony--he was apprehended on company premises in an atmosphere of marijuana smoke in another's car and marijuana was found in his own car on the company lot. The pertinent company rule, promulgated pursuant to a collective bargaining agreement provision permitting the company to impose rules, ³ provides, under the heading CAUSES FOR DISCHARGE:

Bringing intoxicants, narcotics, or controlled substances into, or consuming intoxicants, narcotics or controlled substances in the plant, or on plant premises. Reporting for duty under the influence of intoxicants, narcotics, or controlled substances.

The rule draws no distinctions between "residue" and "usable quantities," nor need it do so. Yet, although Cooper violated it, the award directs his reinstatement at work on the slitter-rewinder. This is contrary to Amalgamated Meat Cutters, in which there was no finding that the driver was drunk, only that he had taken a drink on the job. In adopting plant rules, an employer is not narrowly limited to denouncing acts already made criminal by the law but may, at a minimum, adopt reasonable prophylactic measures going beyond the statutes. As examples, we think it scarcely open to doubt that rules forbidding the introduction of drug paraphernalia onto plant premises (with or without the accompanying drugs) or firearms (loaded or not) would be valid--and the former a valid expression of the policy which we have discussed. If so, it follows that a rule forbidding the introduction on plant premises of marijuana in any quantity whatever would be equally so.

The arbitrator in today's case, focusing chiefly on his conception of "industrial due process," ruled for Cooper in great part because the employer did not at the time it discharged him know of the marijuana residue that he undeniably brought onto the plant parking lot. That his ruling was in the teeth of the other evidence recited we need not further belabor, for that is not the point.

Rather, it is that his narrow focus on Cooper's procedural rights has led him to enter an award directing the employer to put Cooper back to operating a hazardous machine, dangerous to himself and to others, at a time when the arbitrator knew that in fact Cooper had brought drugs onto company premises, in violation of Louisiana law and of a clearly-stated company rule. The...