Petition for Writ of Certiorari — SeaRiver Maritime, Inc. v. Exxon Seamen's Union

Supreme Court, Urs

FILED

vo BLE ST APR 1 0 1996

OFFICE Ur INE -DLERS

IN THE

Supreme Court of the United Staics

OCTOBER TERM, 1995

SEARIVER MARITIME, INC.,

Petitioner.

EXXON SEAMEN'S UNION,

Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

DONALD J. FAY JOHN F. DAUM

RICHARD R. CERBONE (Counsel of Record

CARLIN, MADDOCK, FA) O'MELVENY & MYERS

& CERBONE, P.C. 555 Thirteenth Street. N.W

25 Vreeland Park Road Suite 500 West

Box 751 Washington, D.C. 20004

Florham Park, N.J. 07932 (202) 383-5300

ALBERT R. GALIK PATRICK J. CONLON

SEARIVER MARITIME, INC JoserH T. WALSH, Ill

Citicorp Center, Suite 3200 200 Park Avenue

1200 Smith Street Florham Park, N.J. 07932

Houston, Texas 77002

Attornevs for Petitioner

April 10, 1996

i

QUESTION PRESENTED

As a result of an unannounced search, marijuana was

found in the stateroom and in the suitcase of a seaman

holding a safety-sensitive position on an oil tanker. The

seaman refused a drug test, and was discharged for his

refusal. An arbitrator ordered him reinstated to his

position on the theory that the employer had not proven

that the employee was the owner of the marijuana found

in his room and in his suitcase. The Third Circuit

acknowledged that the strong public policy in favor of a

drug-free workplace forbids an arbitrator from ordering

reinstatement to a safety-sensitive position of an employee

who has refused a drug test and whom there was

reasonable cause to test, but nevertheless upheld the

arbitrator's decision. On these facts, the question

presented is the following:

When drugs are found in the cabin and in the

belongings of an employee who occupies a safety-sensitive

position on an oil tanker, and the employee thereafter

refuses a drug test and is discharged for his refusal, does

public policy allow an arbitrator to order reinstatement of

the employee to the safety-sensitive position?

iii

PARTIES TO THE PROCEEDING

The petitioner is named in the caption. SeaRiver

Maritime, Inc. is the successor to the business of Exxon

Shipping Company. SeaRiver Maritime, Inc. is a wholly

owned subsidiary of SeaRiver Maritime Financial

Holdings, Inc., which is a wholly owned subsidiary of

Exxon Corporation. Affiliates of Exxon Corporation that

fall within Rule 29.1 are listed in Appendix J, bound

separately. SeaRiver Maritime, Inc. has no subsidiaries,

and no affiliates within Rule 29.1 other than those listed

in Appendix J.

The respondent is identified in the caption. The

respondent is a labor union which has no subsidiaries or

parent companies.

Vv

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............... i

PARTIES TO THE PROCEEDING ........ ili

TARR GP COrrn ee cic A A Vv

TABLE OF AUTHORITIES ............. ix

PETITION FOR A WRIT OF CERTIORARI . 1

GER ATE: NA. SUS e cade scant 1

Pe 6g Cia sh as bak PR we ee 2

WE 5 CS 6 oi via kn sac aes 2

REASONS FOR GRANTING THE PETITION 9

IT VIOLATED PUBLIC POLICY TO

REINSTATE IN A _ SAFETY-SENSITIVE

POSITION A SEAMAN WHO HAD

REFUSED TO TAKE A DRUG TEST

AFTER DRUGS WERE FOUND IN HIS

CABIN AND SUITCASE .............. 9

CRIES aww a ke vee esse bebreed 18

APPENDIX A

Opinion and Judgment of the United States

Court of Appeals for the Third Circuit, filed

January 11, 1996 ..... ccc eeseeenceees

APPENDIX B

Opinion and Order of the United States

District Court for the District of New Jersey,

filed December 8, 1994 ...........226--

APPENDIX C

Opinion of the Chairman of the Panel of

Arbitrators, dated November 27, 1992 .....

APPENDIX D

Exxon Shipping Company Policy Statement on

Employee Alcohol and Drug Use, dated April

b. TORE Ni nee Sateen ctheee een eueaes

APPENDIX E

Letter of Exxon Shipping Company to All

Ocean-going Employees of Exxon Shipping

Company, dated September 27, 1988 .......

APPENDIX F

Report of Discharge for Alan B. Cash, dated

Maw 17, 1509 ons cs vcntduccndsstterees

la

65a

67a

73a

Vii

APPENDIX G

Letter of Exxon Shipping Company to Alan

Cash, dated June 6, 1989 ...............

APPENDIX H

Portions of Coast Guard and Department of

Transportation Regulations concerning

Reasonable Cause Testing Requirements, 46

C.F.R. § 16.250(a)-(d) (1989) ............

APPENDIX I

Portions of United States Coast Guard

Random, Pre-Employment, and Reasonable

Cause Drug Testing Rules ..............

APPENDIX J

Reuee acd GOMNOONE . ok ob oe, ce ck oe .

75a

T7a

79a

8la

ix

TABLE OF AUTHORITIES

CASES Page

Delta Airlines, Inc. v. Air Line Pilots Ass’n,

861 F.2d 665 (11th Cir. 1988), cert. denied,

ei PRS See 11

Exxon Corp. v. Baton Rouge Oil & Chemical

Workers Union, 77 F.3d 850 (Sth Cir.

MOOR eS EGR FERS RDN Chae HANS 10-11

{ Exxon Shipping Company v. Exxon Seamen’s

Union, 11 F.3d 1189 (3d Cir. 1993) .... 11

Exxon Shipping Company v. Exxon Seamen’s

Union, 993 F.2d 357 (3d Cir. 1993) .... 11, 13,

14

Gulf Coast Industrial Workers Union v. Exxon

Company, U.S.A., 991 F.2d 244 (Sth Cir.

Moe Se ee, fei ss 11, 17

Hurd v. Hodge, 334 U.S. 24 (1948) .... 10

S.D. Warren Co. v. Local 1069, United

; Paperworkers Int’l Union, 815 F.2d 178 (1st

. Cir. 1987), vacated, 484 U.S. 983 (1987), on

remand, 845 F.2d 3 (1st Cir. 1988) .... 11

Skinner v. Railway Labor Exec. Ass’n, 489

Me EE nb ob decd vec 13

\

TABLE OF AUTHORITIES (cont’d)

CASES Page

State v. Todaro, 576 A.2d 307 (N.J. 1990) . 14

United Paperworkers Int'l Union, AFL-CIO v.

Misco, Inc., 484 U.S. 29 (1987) ....... 10, 16

W.R. Grace & Co. v. Local 759, Int'l Union of

United Rubber Workers, 461 U.S. 757

Sn” | <euhu c6Gbeec hen h eerene es 10, 17

STATUTES AND REGULATIONS

BO UBA § GRO CEO cbc ewe ccs cceiis é

BO Uh, GEMS CESOED ce ccvcccccecscs :

Labor Management Relations Act, 29 U.S.C.

S EP COED: coc ceccceencsteess deus 2

CAL. ANN. VEH. CODE § 23157 (West Supp.

SUED ce becndee evenwoessedecseses 14

10 C.F.R. § 20, Appendix A (1995) .... 14

PS Cre SOP EROOED., i kodecedeciees 14

6 CoP we GF SEOO CEeee). cc cvccccccccs 13

46 C.F.R. § 16.105(b)(3) (1995)... 2... 2

A OR OOD i CA i ale ce am. te

xi

TABLE OF AUTHORITIES (cont’d)

STATUTES AND REGULATIONS Page

46 C.F.R. § 16.201(c) (1995) ........... 13

46 CFR. § 16.230 (1995) ............ 14

49 CFR. § 654.29 (1995) ............ 14

53 FED. REG. 47,072 (1988) .......... 14

59 FED. REG. 7532 (1994) ............ 14

59 FED. REG. 7302 (1994) ........... 14

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

SEARIVER MARITIME, INC..,

Petitioner,

V.

EXXON SEAMEN’S UNION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner seeks a writ of certiorari to review and

reverse the judgment of the United States Court of

Appeals for the Third Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals, App. 1a, is

reported at 73 F.3d 1287 (3rd Cir. 1996). The opinion of

the district court, App. 23a, is not reported. The award of

the arbitrators, App. 35a, is not reported.

JURISDICTION

The district court had jurisdiction under § 301(a) of the

Labor Management Relations Act, 29 U.S.C. § 185 (1994).

The Court of Appeals had jurisdiction under 28 U.S.C.

§ 1291 (1994), and entered judgment on January 11, 1996.

This Court has jurisdiction under 28 U.S.C. § 1254(1)

(1994).

STATEMENT

In May 1989, Alan Cash was employed by Exxon

Shipping as a Pumpman, a safety-sensitive position,

aboard an Exxon Shipping oil tanker, the Exxon

Washington. App. 3a, 42a. The Exxon Washington is a

719-foot, ocean-going crude oil tanker with a capacity to

carry 10,080,000 gallons of petroleum products. The

duties of a Pumpman include loading and discharging

petroleum products, handling _ ballast, performing

maintenance work on the cargo system and undertaking

other mechanical repairs. App. 3a. These duties directly

affect the safety of the vessel's operations and as such,

subject Cash to the Company’s Drug and Alcohol Policy,

as well as United States Coast Guard regulations

pertaining to drug testing. 46 CFR. § 16.105(b)(3)

(1995).

On May 17, 1989, Exxon Shipping performed a safety

inspection for drugs, alcohol, weapons, and contraband

aboard the Exxon Washington while at anchor in San

Francisco Bay. App. 42a. The inspection team was led by

a former narcotics officer, with the assistance of two

trained drug-sniffing dogs. App. 43a. The scope of the

3

inspection included all crew quarters and public areas of

the ship. App. 43a. The team conducted an inspection of

the room occupied by Cash, who was present at the time.

App. 43a. Upon entering Cash’s room, the dog

immediately "alerted" (ie., signaled) and continued to

alert as it moved by the cabinets, desk, bed and walls.

App. 43a. Due to the numerous alerts, a second dog was

used to inspect Cash’s room with the same results. App.

43a.

Based upon the dogs’ reactions, the inspection team

conducted a thorough search of Cash’s room. During the

search, the team found green plant material, undisturbed

ash containing some green plant material, six marijuana

seeds, and in a suitcase acknowledged by Cash to belong

to him, two ends of marijuana cigarettes. App. 43a.

Following the inspection and search of Cash’s room, the

inspection team leader took the evidence to the Captain’s

room where he performed separate microscopic analysis

and Duquenois-Levine tests on the ends of the marijuana

cigarettes, marijuana seeds and green plant material. All

tested positive for THC, the psychoactive ingredient in

marijuana. App. 44a. The remaining material was placed

into three evidence bags, which were sent to Rocky

Mountain Laboratories for confirmation tests. App. 44a.

Rocky Mountain Laboratories confirmed that the material

was marijuana. App. 44a.

When Cash was informed on the ship that the material

had tested positive for marijuana, he was advised, in the

presence of his Union representative, that he was required

under Coast Guard regulations and Exxon Shipping’s

Policy to provide a urine sample to be tested for the

4

presence of illegal drugs. App. 46a. Cash repeatedly

refused to be tested and was removed from the ship on

May 17, 1989. App. 46a. On June 6, 1989, Exxon

Shipping terminated Cash’s employment for refusing to

submit to a drug test. App. 75a.

The respondent Exxon Seamen’s Union took the matter

of Cash’s discharge to arbitration, pursuant to the

collective bargaining agreement between Exxon Shipping

and the Union, and the matter was heard by a three-

person panel. As is customary, one arbitrator was

selected by the Union, one by the Company, and the

Chairman of the panel was the neutral arbitrator. The

panel’s decision ordered that Cash be reinstated to his

former safety-sensitive position with full seniority, but

denied him backpay. App. 63a. The company arbitrator

dissented from the reinstatement order. App. 64a.

In their opinion, written by the chairman, the majority

arbitrators acknowledged that Exxon Shipping’s Policy

permitted testing for drugs when "cause exists to suspect

alcohol or drug misuse" and that termination was the

penalty for violation of the Policy. App. 37a. The Union,

however, asserted before the arbitrators that "cause to

suspect . . . drug misuse" did not exist, on the ground that

the Company had not proved that Cash was the owner

either of the marijuana found in Cash’s room, or of the

marijuana cigarette ends found in Cash’s suitcase. App.

57a.

Cash testified that he had been in the stateroom for

only a day and a half, and that the cabin had not been

5

cleaned before he occupied it.' App. 59a. Cash denied

that he was the owner of any of the marijuana found in

his cabin. App. 48a, 51a. Cash acknowledged ownership

of the suitcase, but denied any knowledge of the

marijuana cigarette ends found in the suitcase. He

testified that he had obtained the suitcase in 1987 or 1988

from another vessel, the Exxon Benicia, and had used it

for more than a year but had never "noticed anything out

of the ordinary inside of it.". App. 48a. Contrary to his

testimony before the arbitrators, he had previously told

the Company’s personnel review committee that his wife

bought the suitcase. App. 48a, 51a.

In evaluating whether cause for a test was present, the

chairman’s opinion treated separately the marijuana found

in Cash’s cabin and the marijuana cigarette ends found in

Cash’s suitcase. The chairman held that cause for a drug

test must be shown by "clear and convincing evidence,"

App. 59a, and that "the evidence must lead to one and

only one logical conclusion." App. 42a, 60a. It appears

that the chairman regarded these standards as

interchangeable.

With respect to the marijuana found in Cash’s cabin,

the chairman found as follows:

[I]t is not reasonable to attribute, by clear and

convincing evidence, ownership of the drug materials

in the cabin to Mr. Cash. As noted above, the

materials were found at scattered points in the room.

The 6 marijuana seeds were, according to the

‘The search of the vessel did not reveal marijuana in the room

that Cash had previously occupied. App. 59a.

6

contemporaneous record, under the rug. But even if

only some of them were there, it is hard to see how

grievant could have gotten any under the rug. He

was only in the room a short time.

The circumstantial evidence certainly does not point

to only the one logical conclusion that the material

belonged to grievant. The ash could have been left

by others, but it is not easy to see how Mr. Cash

could have avoided stepping on it if it was there all

along. Still, the evidence is no stronger that he

deposited the ash than that it was there and he

missed it. The chairman concludes that in the

absence of any drugs in grievant’s previous room, the

probabilities are greater that Mr. Cash did not

introduce the marijuana into his cabin prior to the

search of May 17, 1989 than that he did. 7

App. 59a-60a.

With respect to the marijuana cigarette ends found in

Cash’s suitcase, the Chairman made the following

findings:

The matter of the suitcase is the weakest point of

Mr. Cash’s defense .. . .

Mr. Cash was either incorrect when he told the

[personnel review committee] that his wife purchased

the suitcase for him or when he testified at the

arbitration that he acquired the suitcase on the Exxon

Benicia. Since no doubt has been cast on his

7

assertion that when he got the piece it was used, that

weakness of testimony may make no difference. The

undiscovered cigarette ends could have been in the

pouch no matter how the bag was obtained.

Nevertheless, the lack of candor and/or of accuracy

was not supportive of grievant. Nor was his frequent

inability to recall or to answer questions directly.

Still, there is doubt how the "roaches" got in the

bag. No inference can be drawn from the presence of

the other marijuana in the searched room that

grievant put the "roaches" in the bag. . . .

[Circumstantial evidence must lead to one and only

one logical conclusion. That cannot be said here.

Mr. Cash could not be discharged for possession of

marijuana after this evidence is viewed under a just

cause standard.

App. 60a-61a.

Based on these findings, the chairman drew the

following conclusions about the presence of reasonable

cause to require a drug test, using language that the Third

Circuit fairly characterized as "not a model of clarity,"

App. 17a:

We must come to an ex post conclusion about

whether there was cause to order a drug test. On

May 17, 1989, in light of what Mr. Newman and his

cohorts found, "cause" did exist. (That will create

problems about grievant’s refusal to take the test even

if the above discussion raises questions concerning the

basis for the test order.) The instant review of the

findings concludes, however, that even though drug

8

material was discovered in grievant’s cabin, sufficient

question was raised about ownership of the drugs so

that "cause" "reasonable cause," probable cause" or

"just cause" did not exist to order a test. ...

The chairman concludes that if Mr. Cash had taken

the demanded drug test and then had grieved, a later

arbitration would have found that lack of "cause"

"reasonable cause" "probable cause" or "just cause" to

have ordered the test on the basis of what was found

in the cabin would have led to reversal of any

discipline based on test results. This analysis of the

findings of the search shows that a test could not have

been ordered on the basis of what was discovered in

the cabin.

Having said this, the chairman must rule that in

refusing the drug test, grievant violated the

fundamental rule that except when an order imperils

health or safety, employees must first obey an order

and then grieve.

App. 61a-62a.

Based on this analysis, the chairman ruled that since

cause to order the test did not exist, Cash could not be

discharged for refusing to take the test. App. 63a. On

the other hand, the chairman found that Cash had been

insubordinate in refusing to take the test, and denied him

an award of backpay so as to avoid giving him a "reward

for improper behavior." App. 62a.

Exxon Shipping filed an appeal from this Award, insofar

as it ordered Cash’s reinstatement. In an opinion dated

December 8, 1994, the district court granted the Union’s

9

motion for summary judgment to confirm and enforce the

Award. App. 23a. Exxon Shipping appealed this decision

to the United States Court of Appeals for the Third

Circuit. In an opinion filed January 11, 1996, the Court

of Appeals affirmed the decision of the district court.

App. la.

REASONS FOR GRANTING THE PETITION

IT VIOLATED PUBLIC POLICY TO REINSTATE IN

A SAFETY-SENSITIVE POSITION A SEAMAN WHO

HAD REFUSED TO TAKE A DRUG TEST AFTER

DRUGS WERE FOUND IN HIS CABIN AND

SUITCASE

A grant of certiorari is warranted in this case since the

decision below will go far to defeat the important public

policy in favor of a drug-free workplace, and will have

severe consequences warranting this Court’s attention and

correction. By requiring reinstatement, in safety-sensitive

positions on oil tankers, of employees who have refused

drug tests after drugs are found in their cabins and

personal possessions, the decision below will measurably

increase the likelihood of tanker accidents and decrease

tanker safety. Tanker accidents are a serious matter. The

prospect of an increase in such accidents, owing to the

Third Circuit’s unwillingness to enforce the public policy

against drug use by seamen in safety-sensitive positions,

presents grave risks to tanker crews, to the public, and to

the environment.

This Court has long recognized that a court should not

enforce an arbitration award if enforcement of the award

10

is contrary to public policy. Hurd v. Hodge, 334 U.S. 24,

34-35 (1948); United Paperworkers Int'l Union, AFL-CIO

v. Misco, Inc., 484 U.S. 29, 42 (1987); W.R. Grace & Co. v.

Local 759, Int’l Union of United Rubber Workers, 461 U.S.

757, 766 (1983). As the Court said in Misco,

A court’s refusal to enforce an arbitrator’s award

under a collective-bargaining agreement because it is

contrary to public policy is a specific application of

the more general doctrine, rooted in the common law,

that a court may refuse to enforce contracts that

violate law or public policy.

[H]owever, [ ] a court’s refusal to enforce an

arbitrator’s interpretation of such contracts is limited

to situations where the contract as interpreted would

violate "some explicit public policy" that is "well

defined and dominant, and is to be ascertained ‘by

reference to the laws and legal precedents and not

from general considerations of supposed public

interests.”

484 U.S. at 42-43 (citations omitted).

This case involves the well-established public policy that

the workplace should be free of drugs, and that employers

should be free to require drug testing of employees

holding safety-sensitive positions. Every court that has

considered the matter has held that the public policy in

favor of a drug-free workplace is “well-defined and

dominant" within the meaning of Misco, and therefore that

an arbitrator’s award which violates that policy cannot be

upheld. Exxon Corp. v. Baton Rouge Oil & Chemical

.

t

11

Workers Union, 77 F.3d 850 (Sth Cir. 1996); Exxon

Shipping Company v. Exxon Seamen’s Union, 11 F.3d 1189

(3d Cir. 1993) ("Exxon II"); Exxon Shipping Company v.

Exxon Seamen’s Union, 993 F.2d 357 (3d Cir. 1993)

("Exxon I"); Gulf Coast Industrial Workers Union v. Exxon

Company, U.S.A., 991 F.2d 244 (Sth Cir. 1993); Delta

Airlines, Inc. v. Air Line Pilots Ass’n, 861 F.2d 665 (11th

Cir. 1988); S.D. Warren Co. v. Local 1069, United

Paperworkers Int'l Union, 815 F.2d 178 (1st Cir. 1987),

vacated, 484 U.S. 983 (1987), on remand, 845 F.2d 3 (1st

Cir. 1988). These rulings reflect the obvious fact that the

operation of oil tankers at sea is an inherently risky and

dangerous business, and that even innocent mistakes can

cause catastrophic loss of life, or severe damage to the

environment or to property.

Indeed, in this very case, the Third Circuit recognized,

consistent with its prior decisions, the importance of the

public policy at stake, and found that it would be

undermined if a seaman whom there was reasonable

cause to test could refuse a drug test. As the Third

Circuit said:

The federal government has manifested its strong

support for drug testing of employees involved in

mass transportation through the promulgation by all

federal agencies governing mass transportation of

regulations designed to prevent drug use by

employees in safety-sensitive positions. Such

regulations in most instances equate refusal to test

with a "positive" test result. See, e.g., 14 C.F.R.

§ 121.55(c) (1995) (Federal Aviation Administration);

49 CFR. §§ 219.213, 219.505, 219.603(b) & (c)

12

(1994) (Federal Railroad Administration); 49 C.F.R.

§ 391.95(d) (1994) (Federal Highway Administration);

49 CFR. § 653.35(a) (1994) (Federal Transit

Administration); 10 C.F.R. § 26.27(c) (1994) (Nuclear

Regulatory Commission).

The force of our decisions in Exxon J and // would be

radically undermined if we declined to take the

logical next step and decide that reinstatement of an

employee who refused to submit to a drug test upon

a showing of reasonable cause violates public policy.

Although Coast Guard regulations do not mandate

discharge for an employee -- even one in a safety-

sensitive position -- who refuses a drug test, we

conclude that if Exxon had cause to require a test,

Cash’s reinstatement following his refusal would

violate public policy because it would undercut

enforcement of Coast Guard regulations and

environmental statutes which denote a well defined

and dominant public policy against permitting

intoxicated crew members to operate oil tankers and

other common carriers.

App. 14a (citations omitted.)

Nevertheless, the Third Circuit refused to set aside the

arbitrators’ decision requiring reinstatement to a safety-

sensitive position of an employee who refused a drug test

after marijuana was found in his cabin and his suitcase.

The Third Circuit rested its decision on two grounds, both

of which have the effect of rendering futile the very public

policy that the Third Circuit purported to uphold.

een aan

13

A.

In the first place, the Third Circuit inexplicably limited

the employer’s public-policy right to test for drugs to

circumstances where “reasonable cause" was present.

App. 14a. This limitation makes no policy sense, since it

is clear that a marine employer is not only entitled, but

required to conduct random tests of employees in safety-

sensitive positions. 46 C.F.R. § 16.230 (1995); see Skinner

v. Railway Labor Exec. Ass'n, 489 U.S. 602 (1989).

Specifically, a marine employee occupying a safety-

sensitive position, such as Cash, is subject to Coast Guard

regulations providing that an individual testing positive for

drugs "shall be denied employment as a crew member or

removed from duties . . . [and] shall be subject to

suspension and revocation proceedings against his or her

license, certificate of registry, or merchant mariner’s

document ...." 46 C.F.R. § 16.201(c) (1995); 53 Feb.

REG. 47,072 (1988); 46 C.F.R. § 4.06-5 (1995); Coast

Guard Reasonable Cause Drug Testing Rules, App. 79a;

see Exxon I, 993 F.2d at 361. No conceivable reason exists

why a seaman occupying a safety-sensitive position, who

is subject to random testing on pain of discharge, should

be exempt from testing when drugs are found in his cabin

and in his belongings, merely because he can convince an

arbitrator that there is no “reasonable cause" to test if

“there was doubt how the ‘roaches’ got in the bag." App.

61a. The public interest is in testing and safety, not

cavilling and evasion. If there is reason to suspect an

employee is using drugs on duty -- as is manifestly the

case here -- public policy requires that the employee

submit to a drug test. Public policy forbids rewarding an

14

employee who has refused to be tested by restoring him

to a Safety-sensitive position.

Indeed, it is the almost universal rule that a person who

refuses to submit to a drug test is treated as if he or she

had tested positive? This requirement is universal

precisely because it is recognized as absolutely necessary

to implement the “well-defined and dominant public

policy against the operation of a vessel under the

influence of drugs or alcohol." Exxon J, 993 F.2d at 362.

Fundamental to that policy are "regulations that require

drug testing and authorize the imposition of stiff penalties

on employees,” since "through testing and penalties, the

regulations seek to deter employees from operating

vessels with impaired facilities." Jd. at 361. As the Third

2 See 49 CFR. § 654.29 (1995) (Department of Transportation

regulations providing that "no employer shall permit an employee who

refuses to submit to a test to perform or continue to perform safety-

sensitive functions"), 59 FED. REG. 7532 (1994) (identical provision); 59

FED. REG. 7302, 7321 (1994) (“the consequences for a refusal to submit

to a required test are the same as if the employee had tested at .04 or

greater or had violated any of the other provisions of these rules");

State v. Todaro, 576 A.2d 307, 308 (N.J. 1990) ("the purpose of the

refusal statute is to encourage all suspected drunk drivers to take the

breathalyzer test when required to do so. The statutory purpose of the

implied consent law is not to punish the driver, but to protect the

driving public by removing an offending driver from the highways with

reasonable dispatch"); CAL. ANN. VEH. CODE § 23157 (West Supp.

1996) ("the person shall be told that his or her failure to submit to, or

the failure to complete, the required chemical testing will result in a

fine [and] mandatory imprisonment . . . ."); 10 CFR. § 26, Appendix

A (1995) (Nuclear Regulatory Commission drug and alcohol testing

program guidelines); 33 CFR. § 95 (1995) (Department of

Transportation regulations concerning operation of vehicles while

intoxicated).

15

Circuit acknowledged in this very case, "[wjere employees

permitted to refuse to submit to such chemical tests, it is

difficult to imagine why any drug user would consent."

App. 14a.

The strong public policy in favor of a drug free

workplace will, in practical terms, become little more than

a dead letter if an employer may not enforce drug testing

when, as here, there is manifest reason to suspect an

employee of drug use. This case illustrates the dangers

better than most. The arbitrators required Exxon

Shipping, in order to obtain a drug test from an employee

in a safety-sensitive position, to prove that the employee

had "ownership" of drugs found in the employee’s cabin

and the employee’s suitcase. Such proof is, and always

will be, impossible. Marijuana does not come with title

deeds. If employees caught red-handed with illegal drugs

in their cabins or baggage can evade testing by claiming

that the drugs belonged to someone else, what drug-using

employees will ever allow themselves to be tested? None.

Public policy will be entirely defeated.

It bears emphasis that the only issue here is the right to

test for drug use, and the only employees involved are

those in safety-sensitive positions, whose drug use can

endanger lives, property, and (in the case of oil tankers)

the environment as well. An employee innocent of drug

use will test negative; the case will be closed; and public

Safety will be preserved. Restrictions on testing protect

only employees who have good reason to believe they will

not pass a test. They ensure that drug-using employees in

Safety-sensitive positions will escape detection. They

16

greatly increase the likelihood that, sooner or later, such

drug use will result in a disaster.

Even if the Third Circuit had been right that the public

policy favoring detection and prevention of drug use by

those in safety-sensitive jobs is too weak to require drug

tests unless “reasonable cause" is shown, it was

unquestionably wrong in refusing to reexamine the

arbitrators’ highly eccentric conclusion that "reasonable

cause" was absent unless the employer proved the

employee’s "ownership" of the drugs. The Third Circuit

gave the following explanation for this strange result:

The Supreme Court has made clear that findings of

fact and inferences to be drawn therefrom are the

exclusive province of the arbitrator. [Citing Misco].

That a court is inquiring into a possible violation of

public policy [does nut] excuse a court for doing the

arbitrator’s task. [Citing Misco, 484 U.S. at 45].

Thus, this court may not refuse enforcement even if

we consider the evidence sufficient to prove that

reasonable cause existed to require Cash to submit to

a drug test. App. 20a.

Under the Third Circuit’s decision, reinstatement of Cash

rust thus be upheld (a) even if the Court considers that

reasonable cause for a test was present; and (b) even

though public policy forbids reinstatement of an employee

who refuses a test when reasonable cause is present.

“s ctr hi oe Pate

17

The premise of the Third Circuit’s decision is that the

arbitrator’s finding of "reasonable cause" precludes the

Third Circuit from making its own determination

concerning public policy. Perhaps such a ruling would be

defensible if there were a bona fide factual dispute. But

that is not the case. There is no issue about the facts

here. No one denies that marijuana was found in Cash’s

cabin; no one denies that marijuana was found in Cash’s

suitcase. The dispute is over an issue of law: Do those

undisputed facts constitute “reasonable cause" so that

public policy allowed the employer to require a drug test?

Or more precisely: Given that public policy allows an

employer to require a drug test of employees holding

safety-sensitive positions if there is "reasonable cause" to

do so, is reasonable cause present when drugs are found

in the employee’s cabin or suitcase? That is not a

question about the facts, it is a question about the scope

of the relevant public policy. And this Court has held

squarely that "the question of public policy is ultimately

one for resolution by the courts." W.R. Grace & Co., 461

U.S. at 766 (emphasis added). The Third Circuit’s rule

would have the effect, contrary to this Court’s teaching,

“of ousting the courts of jurisdiction and abdicating the

public policy question entirely to arbitrators." See Gulf

Coast, 9S‘ F.2d at 254. It should not be upheld.

a

CONCLUSION

For the reasons stated, this Court should issue a writ of

certiorari to review the judgment below, and should

reverse that judgment.

Donald J. Fay

Richard R. Cerbone

Carlin, Maddock, Fay

& Cerbone, P.C.

25 Vreeland Park Rd.

Box 751

Florham Park, NJ 07932

Albert R. Galik

SeaRiver Maritime, Inc.

Citicorp Center, Suite 3200

1200 Smith Street

Houston, TX 77002

Respectfully submitted,

John F. Daum

(Counsel of Record)

O’Melveny & Myers

555 Thirteenth St., N.W.

Suite 500 West

Washington, D.C. 20004

(202) 383-5300

Patrick J. Conlon

Joseph T. Walsh, Ill

200 Park Avenue

Florham Park, NJ 07932

Attorneys for Petitioner

April 10, 1996