United Food & Commercial Workers Intern. Union, Local 588 v. Foster Poultry Farms

• Decision Date: 06 December 1995
• Docket Number: No. 94-16152,94-16152
• Citation: 74 F.3d 169
• Parties: 151 L.R.R.M. (BNA) 2013, 151 L.R.R.M. (BNA) 2607, 64 USLW 2390, 131 Lab.Cas. P 11,461, 11 IER Cases 729, 95 Cal. Daily Op. Serv. 9630, 95 Daily Journal D.A.R. 16,752 UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 588, Plaintiff-Appellee, v. FOSTER POULTRY FARMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 169

74 F.3d 169

151 L.R.R.M. (BNA) 2013, 151 L.R.R.M. (BNA)

2607, 64 USLW 2390,

131 Lab.Cas. P 11,461, 11 IER Cases 729,

95 Cal. Daily Op. Serv. 9630,

95 Daily Journal D.A.R. 16,752

UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, LOCAL 588, Plaintiff-Appellee, v. FOSTER POULTRY FARMS, Defendant-Appellant.

No. 94-16152.

United States Court of Appeals Ninth Circuit.

Submitted Dec. 6, 1995. ^*

Decided Dec. 18, 1995.

As Amended on Denial of Rehearing Jan. 30, 1996.

Marc A. Smyer, Orrick, Herrington & Sutcliffe, San Francisco, California, for the defendant-appellant.

Donald C. Carroll, Carroll & Scully, San Francisco, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: Harry Pregerson, Melvin Brunetti, and T.G. Nelson, Circuit Judges.

PREGERSON, Circuit Judge:

Foster Poultry Farms ("Foster") appeals the district court's summary judgment confirming an arbitration award in favor of the United Food and Commercial Workers Union, Local 588, UFCW, AFL-CIO ("Union"). The arbitrator found that Foster had violated the collective bargaining agreement ("CBA") by unilaterally implementing a drug testing program for its drivers and by discharging two employees pursuant to the drug testing program. The arbitrator ordered reinstatement of the two employees and temporarily rescinded Foster's drug testing program until such time as Foster bargained with the Union over certain non-mandatory and discretionary aspects of Foster's drug testing program. Foster contends that the arbitration award violates the alleged public policy embodied in the regulations promulgated by the Federal Highway Administration of the Department of Transportation ("DOT") mandating various forms of drug testing for commercial motor vehicle operators. See 49 C.F.R. Secs. 391.81-391.123. ¹ We have jurisdiction under 28 U.S.C. Sec. 1291. The district court had jurisdiction under 28 U.S.C. Sec. 1331. We affirm. There are no grounds to vacate the arbitrator's award in this case.

BACKGROUND

Foster is an employer engaged in an industry affecting interstate commerce within the meaning of the National Labor Relations Act, as amended, 29 U.S.C. Secs. 151, 152(2) and (7). Effective February 18, 1991, Foster and the Union entered into a collective bargaining agreement covering wages, hours, and other conditions of employment. Section VII of the CBA contains a Grievance and Arbitration procedure whereby Foster and the Union agree to settle by arbitration any dispute as to the interpretation and application of the CBA.

A dispute arose between Foster and the Union over Foster's drug testing program. Without bargaining with the Union, Foster unilaterally implemented a random drug testing program to comply with the DOT regulations mandating various forms of drug testing for commercial vehicle operators. See 49 C.F.R. Secs. 391.81-391.123. ²

Under the DOT regulations, an employer must conduct random annual drug testing of 50% of its drivers. 49 C.F.R. Sec. 391.109. The regulations provide, in relevant part, that any person who tests positive for drug use without being able to show "by clear and convincing evidence" that the "controlled substance" was medically prescribed, shall be "medically unqualified" to operate a commercial motor vehicle. 49 C.F.R. Secs. 391.95(b) and (c), 391.97. ³

The DOT regulations, however, do not require an employer to terminate an employee who tests positive for drug use. The regulations only prohibit an employee from driving a commercial motor vehicle. The DOT grants an employer broad discretion in how to deal with an employee who tests positive for drug use. The DOT contemplates that such issues as discipline and rehabilitation should be resolved by the labor negotiation process.

As the DOT explained when it issued its regulations:

It is understood that broad rehabilitation opportunities and job security for employees, without regard to the manner of detection of drug use, may help those drivers who are unable to help themselves. However, the FHWA [Federal Highway Administration] believes that the comprehensive testing program of commercial motor vehicle drivers combined with an employee assistance program to educate and train all personnel, is the most effective approach to promote safety and will reduce drug use in the motor carrier industry.... This rule [however] neither prohibits a motor carrier from assigning a driver to a nondriving duty nor requires the driver to use vacation time, sick leave or leave without pay in order to accommodate that person's rehabilitation activities. Issues such as termination, reassignment, hiring of temporary drivers to fill a position, or policies regarding a driver's absence are, the FHWA believes, issues that are appropriately the subject of labor-management negotiations and are not issues to be addressed in this rulemaking action.

53 Fed.R. 47,148 (November 21, 1988) (emphasis added).

Foster terminated the first two employees who were randomly selected for drug testing. The first employee, Brian Bowen, tested positive for drug use. Bowen maintained that the chain of custody procedures were not properly followed in his case. The second employee, Robert Folie, refused to be tested. Folie incorrectly believed that Foster was required to provide 24-hour advance notice to employees selected for drug testing. Apparently, Folie did not participate in the educational and training program required by the DOT regulations.

The Union challenged the employees' terminations and Foster's right to implement the drug testing program unilaterally through the collective bargaining grievance procedure. The Union maintained that the random drug testing program could not be implemented until such time as Foster agreed to bargain with the Union on the method by which the program would be carried out and the consequences to employees who test positive for drug use. The Union did not contest the reasonableness of the random drug testing program required by the DOT regulations.

Foster maintained that its random drug testing program was mandatory under the DOT regulations. Foster, however, agreed to arbitrate the issue of whether the unilateral implementation of the program and subsequent termination of its two employees violated the terms of the CBA. Foster did not agree to arbitrate any statutory issues.

At the arbitration hearing, Foster argued that its actions in unilaterally implementing the drug testing program did not conflict with the CBA. According to Foster, the CBA grants it the exclusive right to manage its business and direct its work force so long as Foster's actions do not conflict with the CBA.

The arbitrator rejected Foster's arguments. The arbitrator found that Foster had breached the CBA in failing to notify the Union of its intention to implement the drug testing program and in failing to bargain with the Union over the non-mandatory and discretionary elements of the drug testing program. As the arbitrator explained in her order:

Drug testing vitally affects employees' contractual rights to be discharged only for just cause. Accordingly, under the clear language of the [labor] agreement, the right to manage and direct does not privilege unilateral implementation of such a policy.... As a remedy, the Employer must put the Union and Grievants where they would have been but for the contractual breach.

Having found that Foster had breached the CBA, the arbitrator ordered Foster to reinstate the two employees and to rescind temporarily the drug testing program until such time as Foster bargained with the Union over such non-mandatory and discretionary aspects as discipline and rehabilitation. In justifying the appropriateness of these remedies, the arbitrator noted:

[The] public policy, as expressed in the DOT regulations, prohibits operating a vehicle under the influence of drugs or alcohol. Those regulations express no public policy permanently enjoining the employment of persons who have ever used such substances. The public policy concern thus does not determine whether such persons should be reassigned to non-driving duties, disciplined, or discharged.

Thereafter, the Union filed a complaint in the district court to confirm the labor arbitration award under 29 U.S.C. Sec. 185. Before the district court, Foster sought to vacate the arbitrator's award. Foster alleged that the award violated public policy and was in manifest disregard of the law. The parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of the Union and confirmed the arbitrator's award.

ANALYSIS

We review de novo the district court's grant of summary judgment. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). In this circuit, because federal labor policy strongly favors the resolution of labor disputes through arbitration, " '[j]udicial scrutiny of an arbitrator's decision is extremely limited.' " Stead Motors v. Automotive Machinists Lodge, 886 F.2d 1200, 1208 n. 8 (9th Cir.1989) (en banc), cert. denied, 495 U.S. 946, 110 S.Ct. 2205, 109 L.Ed.2d 531 (1990) (emphasis in original) (citations omitted). See also Federated Dept. Stores v. United Food & Commercial Workers Union, Local 1442, 901 F.2d 1494, 1496 (9th Cir.1990) ("The scope or review of an arbitrator's decision in a labor dispute is extremely narrow").

A court must limit its review " 'to whether the arbitrator's solution can be rationally derived from some plausible theory of the general framework or intent of the agreement.' " Van Waters & Rogers, Inc. v. Int'l Brotherhood of Teamsters, 56 F.3d 1132, 1135 (9th Cir.1995) (quoting Desert Palace, Inc. v. Local Joint Executive Bd. of Las Vegas, 679 F.2d 789 (9th Cir.1982)). An arbitration award must be confirmed "[a]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority." Id. at...