# Appendix — SeaRiver Maritime, Inc. v. Exxon Seamen's Union > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1721%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1996 - **Citation:** 517 U.S. 1251 ## Text Court, U.8. FILED ~ 985 16 37 apr 10 19% OFFICE OF iME Citan No, In THE Supreme Court of the United States OcTOBER TERM, 1995 SEARIVER MARITIME, INC. ¥ Petitioner, EXxON SEAMEN’S UNION, Respondent. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit APPENDICES TO PETITION FOR A WRIT OF CERTIORARI DONALD J. FAY JOHN F. DAUM RICHARD R. CERBONE (Counsel of Record) CARLIN, HADDOCK, FAY O’ MELVENY & MYERS & CERBONE, P.C. 555 Thirteenth Street, N.W. 25 Vreeland Road, Box 751 Suite 500 West Florham Park, NJ 07932 Washington, D.C. 20004 ALBERT R. GALIK (202) 383-5300 SEARIVER MARITIME, INC. PATRICK J. CONLON Citicorp Center, Suite 3200 JoserH T. WALSH, III 1200 Smith Street 200 Park Avenue Houston, TX 77002 Florham Park, NJ 07932 Attorneys for Petitioner April 10, 1996 ST WILSON - Eres Printine Co., Inc. - 7869-00086 - WasnincTon, D.C. 20001 INDEX TO APPENDIX APPENDIX A Opinion and Judgment of the United States Court of Appeals for the Third Circuit, filed January 11, See Caicos ANNs at RE RTT i APPENDIX B Opinion and Order of the United States District Court for the District of New Jersey, filed Decem- ge RRR BERR DN IE IPRS a eR APPENDIX C Opinion of the Chairman of the Panel of Arbitra- tors, dated November 27, 1992 .........0 APPENDIX D Exxon Shipping Company Policy Statement on Employee Alcohol and Drug Use, dated April 1, UNE diNis ccs cecdlsieaasocsa eatemiceds Madi ceeaskauhibeen det Sechekdbsenciscccde ie APPENDIX E Letter of Exxon Shipping Company to All Ocean- going Employees of Exxon Shipping Company, ee I tn, SI varietals cdeceincicascccceendnanece APPENDIX F Report of Discharge for Alan B. Cash, dated May SA = SE A Dadilicn Alec claphidilisinctittilindininacnindentecsctihaeticantdessstais APPENDIX G Letter of Exxon Shipping Cor:pany to Alan Cash, I APPENDIX H Portions of Coast Guard and Department of Trans- portation Regulations concerning Reasonable Cause Testing Requirements, 46 C.F.R. § 16.250(a)-(d) (1989) Page la 23a 67a 73a 75a ii INDEX— (Continued) APPENDIX I Page Portions of United States Coast Guard Random, Pre-Employment, and Reasonable Cause Drug Test- Rangt BRUNOG ssc ssivcscecicceccicinccsentes tencceneeneeesaa aaa 79a APPENDIX J Rule BO.5 TE whee nike dik cncieseeie 8la i pian. la APPENDIX A Filed January 11, 1996 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 95-5027 Exxon SHIPPING COMPANY, Appellant v. EXxON SEAMAN’S UNION On Appeal from the United States District Court for the District of New Jersey (D.C. No. 93-cv-00689 ) Argued September 11, 1995 Before: SLOVITER, Chief Judge ALITO, Circuit Judge and RENDELL, District Judge * (Opinion Filed January 11, 1996) OPINION OF THE COURT * Hon. Marjorie O. Rendell, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. | 2a SLOVITER, Chief Judge. Exxon Shipping Company appeals from a district court order which declined to vacate and instead confirmed and enforced an arbitration award reinstating an Exxon em- ployee who had been discharged for refusing to submit to a drug test. We will affirm. I. The collective bargaining agreement (“Agreement”) between Exxon Shipping Company and Exxon Seamen’s Union expired on August 31, 1987. After eight months of negotiating for a successor agreement, Exxon, in a letter sent on March 29, 1988 to all oceangoing employ- ees, declared an impasse and advised the Union and its members that Exxon’s final proposals would be imple- mented on April 1, 1988. The March 29 letter stated that the terms of the new working relationship between Exxon and the Union would include, inter alia, the company’s Drug and Alcohol Pol- icy and any provisions of the expired Agreement that were not part of the negotiations. That “Policy State- ment on Employee Alcohol and Drug Use,” issued with the March 29 letter, contained the following language: Exxon Shipping Company may from time to time conduct unannounced searches for drugs and alcohol on owned or controlled property. The Company also has the right to require employees to submit to medi- cal 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. App. at 44 (emphasis added). Exxon amplified its Drug and Alcohol Policy in a letter sent to all oceangoing employees on September 27, 1988. Exxon explained it would be aggressively enforcing its a erry sk li iii 3a Alcohol and Drug Policy and gave “official notice” that violation of the policy “will result in immediate termina- tion from the vessel.” App. at 49-50 (emphasis in origi- nal). One of the terms of the Agreement remaining in effect during the negotiations was a “Discipline” section, which stated that “there will be posted . . . a list of rules which shall constitute cause for which unlicensed personnel may be discharged without further notice.” App. at 147 (em- phasis added). Included on this list was “{i]nsubordina- tion, including failure or refusal to perform work as- signed.” App. at 128a. A provision of the Agreement ; providing for grievance and arbitration of disputes also remained in effect. The case before us stems from Exxon’s discharge of Alan B. Cash, a thirteen-year employee who started with Exxon as a seaman and advanced to chief pumpman. The duties of a pumpman include loading and unload- ing cargo and properly aligning pumps for the transfer . of products. The parties do not dispute that it is a safety- sensitive position and is subject to Coast Guard regula- tions pertaining to drug testing. On or about May i0, 1989, Cash was transferred from the Exxon Benecia in Japan to the Exxon Washington, anchored in San Francisco Bay. For the period of May 10-15, Cash resided in the second pumpman’s room of the Exxon Washington. On May 15, the chief pumpman of the Exxon Washington vacated the ship and Cash moved into his room. On May 17, Exxon conducted an unannounced drug search of all the rooms of the Exxon Washington. Marijuana was discovered in various places in the chief pumpman’s room which Cash had been occupying for the last day and a half. As a result of the search, Exxon requested that Cash take a drug test. He refused. By letter dated June 6, 1989, Exxon discharged Cash, stating that he had vio- 4a lated Exxon’s Drug and Alcohol Policy by refusing to submit to a drug test after reasonable cause for testing had been determined. The Union filed a grievance to protest Cash’s discharge, and the dispute was eventually submitted to arbitration before an arbitration panel of three members, one appointed by Exxon, one by the Union, and the third a neutral arbitrator who acted as Chairman. In an Opinion and Award dated November 27, 1992, the Chairman made the following factual findings: A “very small” amount of marijuana or marijuana residue was found in the cabin used by Cash as of May 17, 1989. This small amount was found in a number of places: green leafy material in a desk and cabinet; ash on the rug near the bed; seeds under the rug; and cigarette ends, or “roaches,” in a pouch of a suitcase. App. at 91-92. No traces of drugs were found in the quarters Cash pre- viously occupied. Cash was in the room in which mari- juana was discovered for only one and a half days and for only a few hours daily during that period. A chief pumpman and another pumpman used the cabin before Cash moved into it, and other persons had access to the room because the door was left unlocked. Cash did not ask the utility men to clean his cabin because he did not want to interfere with their shore leave. Despite the marijuana found in Cash’s suitcase, the Chairman found “it is not reasonable to attribute, by clear and convincing evidence, ownership of the drug materials in the cabin to Mr. Cash.” App. at 92. The Chairman noted that there were no drugs found in Cash’s previous room and that it was unlikely that in his short time in the room he would have caused marijuana seeds to be under the carpet. Jd. He also stated that “the cabin had not been cleaned at the time of the search, had been used by a number of persons in previous days, and was open to others.” Jd. The Chairman concluded that “[t]he circumstantial evidence certainly does not | point to only the one logical conclusion that the ma- terial belonged to grievant,” and therefore there was no “reasonable cause” under Coast Guard regulations to demand a drug test. App. at 92-93. ! The Chairman next considered whether there was cause to test Cash under the company policy. He remarked that “(t]he matter of the suitcase is the weakest point of Mr. Cash’s defense against the charge that he vio- lated company policy by introducing marijuana into his cabin.” App. at 93. Cash had stated at one point that his wife had purchased the suitcase for him but testified at the arbitration that he had acquired the suitcase on a previous ship. The Chairman noted, however, that no doubt had been raised that the suitcase was used before Cash obtained it, and “[t]he undiscovered cigarette ends could have been in the pouch no matter how the bag was obtained.” Jd. He added that “[n]lo inference can be drawn from the presence of the other marijuana in the searched room that grievant put the ‘roaches’ in the bag.” Id. Finding the circumstantial evidence insufficient to prove that Cash possessed marijuana, the Chairman de- termined Cash could not be discharged for possession under a “just cause” standard. App. at 94. He concluded with the following passage: 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... . The instant review of the findings concludes, however, that even though drug material was discovered in grievant’s : cabin, sufficient question was raised about owner- ship of the drugs so that “cause” “reasonable cause”, “probable cause” or “just cause” did not exist to order a test. And Mr. Shearer’s testimony estab- lished that Mr. Cash’s appearance and actions pro- vided no basis for ordering a test. 6a The chairman concludes that if Mr. Cash had taken the demanded drug test and then had grieved, a later arbitration would have found that !ack of “cause” “reasonable cause” “probable cause” or “just cause” to have ordered a test on the basis of what was found in the cabin would have led to reversal of any discipline based on test resufts. This analysis of the findings of the search shows that a test could not have been ordered on the basis of what was dis- covered in the cabin. Id. The Chairman did find, however, that Cash was insub- ordinate in refusing to take the test, saying he “violated the fundamental rule that . . . employees must first obey an order and then grieve.” App. at 95. Nevertheless, “since the order to take the drug test arose out of an incorrect evaluation of the meaning of the marijuana found in Mr. Cash’s cabin, discharge for failure to accept the test is not possible.” Jd. The Chairman ordered re- instatement with full seniority but without back pay. The opinion was that of the Chairman of the Arbitra- tion Panel. The Panel’s award was issued by the neutral chairman and the Union appointed arbitrator who con- curred with the award. The Company appointed arbitra- tor dissented. Exxon filed suit in district court pursuant to section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185, to vacate the arbitration award on the following two grounds: 1) that enforcement of the award would violate public policy; and 2) that the arbitration panel exceeded its authority by reinstating Cash. Both parties moved for summary judgment. The district court granted the Union’s motion. The court found that be- cause neither Exxon’s policy nor the Coast Guard regu- lations mandate dismissal of an employee who refuses to submit to a reasonable cause test, Cash’s reinstatement did not violate public policy. The court also found that Ja the arbitrator acted within his authority in determining that cause did not exist to discharge Cash. Exxon timely filed a Notice of Appeal. We have jurisdiction over the district court’s grant of summary judgment under 28 U.S.C. § 1291. Our re- view is plenary, and we apply the same standard the district court should have applied in reviewing the arbi- tration award. Stroehmann Bakeries, Inc. v. Local 776, Int'l Bhd. of Teamsters, 969 F.2d 1436, 1440-41 (3d Cir.), cert. denied, 506 U.S. 1022, 113 S. Ct. 660, 121 L.Ed.2d 585 (1992). Il. In its argument that the trial court’s order should be upheld, the Union emphasizes the favored treatment given arbitration awards in the courts. The Supreme Court has frequently cautioned courts of the extremely limited role they play in reviewing the decision of au arbitrator. See United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36, 108 S. Ct. 364, 369-70, 98 L.Ed.2d 286 (1987). It has said that “[t]he refusal of courts to review the merits of an arbitration award is the proper approach to arbitration «nmder collective bargaining agreements. The federal policy of settling labor disputes by arbitra- tion would be undermined if courts had the final say on the merits of the awards.” United Steelworkers vy. Enter- prise Wheel & Car Corp., 363 U.S. 593, 596, 80 S. Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960). Thus, we must enforce an arbitration award if it is based on an argu- able interpretation of the collective bargaining agreement, and we may only vacate an award if it is entirely unsup- ported by the record or if it reflects a “manifest disre- gard” of the agreement. News America Publications, Inc. v. Newark Typographical Union, Local 103, 918 F.2d 21, 24 (3rd Cir. 1990). On the other hand, under an exception to the general rule, a court may vacate an award if it violates a “well defined and dominant” public policy, discerned “ ‘by ref- erence to the laws and legal precedents and not from general considerations of supposed public interests.’ ” W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766, 103 S. Ct. 2177, 2183, 76 L.Ed.2d 298 (1983) (quoting Muschany v. United States, 324 US. 49, 66, 65 S. Ct. 442-451, 89 L.Ed 744 (1945)); United Trans. Union Local 1589 v. Suburban Transii Corp., 51 F.3d 376, 381 (3d Cir. 1995). Application of the public policy exception requires a two step analysis. The thresh- old question is whether a well defined and dominant pub- lic policy can be identified. If so, the court must deter- mine whether the arbitrator's award, as reflected in his or her interpretation of the agreement, violated the public policy. Exxon relies on the public policy exception on this appeal, contending that in this case both questions should be answered in the affirmative. A Exxon argues that the arbitrator’s reinstatement of Cash following his refusal to submit to a drug test was contrary to the well defined public policy against the oper- ation of common carriers by individuals impaired by drugs or alcohol. This court has twice recognized such a policy in cases involving Exxon seamen. Exxon now asks us to complete a “trilogy” by finding that reinstate- ment of an employee in a safety-sensitive position who refuses to submit to a chemical test violates that public policy. We first identified a broad public policy against per- mitting an individual to operate a vessel while under the influence of drugs or alcohol in Exxon Shipping Co. v. Exxon Seamen’s Union, 993 F.2d 357 (3d Cir. 1993) (hereinafter Exxon I}, which arose after an Exxon oil tanker ran aground. Helmsman Morris Foster was among the crew given a drug and alcohol test under Coast Guard regulations and Exxon’s Alcohol and Drug Use Policy. Exxon fired him on the basis of its drug policy when he tested positive for marijuana. The arbitrators decided that suspension was a more appropriate penalty 9a than discharge, noting that there was insufficient evidence indicating that Foster had used drugs at work and that Foster had passed the Coast Guard drug screening level, which was higher than Exxon’s. Jd. at 359-60. The district court vacated the award, and we affirmed, finding that the award requiring reinstatement violated “a ‘well defined and dominant’ public policy against the operation of a vessel under the influence of drugs or alco- hol” reflected in the Coast Guard regulation. /d. at 362 (quoting W.R. Grace, 461 U.S. at 766, 103 S. Ct. at 2183). We referred to one regulation requiring that in- dividuals testing positive for drugs “shall be denied em- ployment . . . or removed from duties which directly affect the safety of the vessel’s navigation or operations,” 46 C.F.R. § 16.201(c) (1990), and another prohibiting those individuals from returning to work aboard a vessel unless rehabilitation is shown, id. § 16.370(d) (1990). 993 F.2d at 364. We concluded that the purpose of the Coast Guard regulations would be undermined and their deterrence function undercut by the reinstatement of Foster. Id, We also noted that his reinstatement would be incon- sistent with public policy as identified by other courts that had vacated arbitral awards reinstating operators of common carriers discharged for drug or alcohol use. See, e.g., Delta Air Lines, Inc. v. Air Line Pilots Ass'n Int'l, 861 F.2d 665 (11th Cir. 1988) (vacating arbitration award reinstating a pilot who flew a passenger airplane while under the influence of alcohol), cert. denied, 493 U.S. 871, 110 S. Ct. 201, 107 L.Ed.2d 154 (1989); Amalgamated Meat Cutters and Butcher Workmen vy. Great Western Food Co., 712 F.2d 122 (5th Cir. 1983) (vacating award reinstating tractor-trailer driver after he overturned company truck while intoxicated). In holding that the arbitrators’ award requiring rein- Statement would violate public policy we declined to accept the union’s argument that the public policy ex- ception to enforcing an arbitrators’ award could only be 10a applied when the award contravened a rule of positive law. We found the broader test adopted by most of the circuits to be “the sounder approach,” 993 F.2d at 363, and noted that “the contours of positive law are broad enough to include not just specific rules or prohibitions but also the stated purposes behind the rules and pro- hibitions.” Jd. at 364. We thus held that the award re- instating Foster “violates the public policy protecting the public and the environment against operation of vessels by drug users.” /d. We identified a similar public policy in Exxon Shipping Co. v. Exxon Seamen's Union, 11 F.3d 1189 (3d Cir. 1993) [hereinafter Exxon IT\. Seaman Randall Fris was observed in an impaired condition when he reported back one evening to the Exxon Long Beach tanker. He was discharged after a breathalyzer test disclosed a blood- alcohol level in violation of both the company’s alcohol policy and Coast Guard regulations. The arbitration panel found that Fris had been intoxicated when he boarded the ship but conciuded, over the dissent of the company representative, that in light of Fris’ good record he should have been given an opportunity to demonstrate that his intoxication was an aberration. It thus reinstated Fris with a 90-day suspension. Once again the district court vacated the award, and we affirmed. We held in Exxon II that there is a well defined and dominant public policy “that an owner or operator of an oil tanker should not be compelled to reinstate to a ‘safety- sensitive’ position an individual who has been found to be intoxicated while on duty on that vessel.” Id. at 1194. We noted that under Coast Guard regulations, a crew member who is intoxicated while on duty is guilty of a crime under 33 C.F.R. § 95.055 (1993). Marine em- ployers are prohibited from allowing an intoxicated indi- vidual to “stand watch or perform other duties,” id. § 95.050(b), and must exercise “due diligence” to see that the regulations concerning intoxication are not vio- lated, id. § 95.050(a). tl F.3d at 1194-95. We em- phasized the potentially disastrous environmental conse- quences of an oil spill, and noted that statutes such as the Clean Water Act, 33 U.S.C. § 1251 ef seq., and the Oil Pollution Act of 1990, 33 U.S.C. § 2701 ef seq., evidence a Congressional policy of protecting the environment against oil spills in waters under federal jurisdiction. 11 F.3d at 1194. We also noted that Exxon faced potential civil and criminal liability if an impaired Exxon employee caused an accident. Jd. at 1195. Consequently, we con- cluded that the federal policy favoring settlement of labor disputes by arbitration must yield to the “well defined and dominant policy that owners and operators of oil tankers should be permitted to discharge crew members who are found to be intoxicated while on duty.” /d. at 1196. It is in light of our two previous Exxon cases that articulate a strong public policy against the operation of oil tankers and common carriers by crew members who are under the influence of drugs or alcohol that we turn to the somewhat different fact posture presented by this appeal. B. Exxon argues that reinstatement of an employee who refuses to submit to a drug test upon a showing of rea- sonable cause violates the public policy identified in Exxon I and Exxon I/ because it undermines enforcement of the Coast Guard regulations and other laws animated by that policy. Exxon does not argue that Cash’s refusal to take a drug test under these circumstances violated any positive law. In both Exxon / and Exxon Il we acknowledged that another court of appeals had held that an arbitration award could be overturned only when its enforcement would cause a violation of positive law, see Northwest Airlines, Inc. v. Air Line Pilots Assn Int'l, 808 F.2d 76, 83-84 (D.C. Cir. 1987), cert. denied, 486 U.S. 1014, 108 S. Ct. 1751, 100 L.Ed.2d 213 (1988); American Postal Workers Union vy. United States Postal Serv., 789 F.2d 1, 8 (D.C. Cir. 1986), whereas others have opted for a broader approach that authorizes va- 12a cating an award that is “inconsistent with some signifi- cant public policy,” E.J. DuPont de Nemours & Co. v. Grasselli Employees Indep. Ass'n, 790 F.2d 611, 616 (7th Cir.) (quoting Robert A. Gorman, Basic Text on Labor Law 597 (1976)), cert. denied, 479 U.S. 853, 107 S. Ct. 186, 93 L.Ed.2d 120 (1986); see also United States Postal Serv. v. American Postal Workers Union, 736 F.2d 822, 824 (list Cir. 1984). In United Paper- workers International Union v. Misco, Inc., 484 U.S. 29, 108 S. Ct. 364, 98 L.Ed.2d 286 (1987), the Supreme Court considered the breadth of the public policy excep- tion but declined to resolve this split. In favoring the broader approach in Exxon I, we stated that “the distinction between an award which violates a manifestation of positive law and an award which is ‘in- consistent with public policy’ is often blurred.” 993 F.2d at 363. We reasoned that “[w]here the ‘positive law’ is a stated purpose behind a statute or regulation, to thwart the purpose is to ‘violate positive law.’” Jd. at 364. In Exxon Il, we clarified that in the earlier case we had “expressly rejected” the argument that an arbitration award may only be set aside when its enforcement would violate a specific “positive law.” Exxon II, 11 F.3d at 1192. Accord United Transp. Union Local 1589 v. Sub- urban Transit Corp., 51 F.3d 376, 381 (3d Cir. 1995). The Union, although acknowledging that we opted for a broader reading of the public policy exception in Exxon I and JJ, argues that notwithstanding our broad language in those cases we cited to and relied on positive law. It notes that whereas reinstatement of the particular em- ployees at issue in Exxon I and II would have violated specific Coast Guard regulations or placed Exxon in jeopardy of facing civil and criminal liability, there is no regulation or statute that punishes the refusal of an em- ployee to submit to a drug test that is based on “reason- able cause.” It differentiates the Coast Guard regulations that apply to post-accident testing, where the refusal to submit “could subject the individual to susp’ sion and l3a revocation proceedings . . . and removal from any duties which directly affect the safety of the vessel’s navigation or operations,” 46 C.F.R. § 4.06-5(c) (1994), from those applicable to an employee who refuses to submit to rea- sonable cause drug testing, which only require the em- ployer to enter the seaman’s refusal in the vessel’s official logbook, if such a book is required, id. § 16.250(d). Thus, the Union contends the regulations do not manifest a public policy that would prevent reinstatement of an who refuses to submit to a reasonable cause The district court relied on this distinction to find that dispute. To the extent that the district court held that the parameters of public policy were limited by the extent to which the Coast Guard regulations impose a penalty, it misconstrued our holdings in Exxon I and IJ. In fact, in Exxon I, Foster’s drug test was negative when evaluated at the Coast Guard screening level, and thus Coast Guard regulations did not require that his license be revoked. 993 F.2d at 358, 361. Nevertheless, we found that his reinstatement would violate the public policy underlying those regulations. Id. at 364. A clearly defined and cautiously administered program of drug testing, whether based on random testing or rea- sonable cause, is the natural corollary to our earlier opin- ions identifying a strong public policy that precludes al- lowing intoxicated or drug-impaired seamen to remain in safety-sensitive positions aboard oil tankers. We noted in Exxon IT that “the statutes and regulations . . . convey the unequivocal message that . . . an owner or operator [of an oil tanker] should take every practicable step to en- sure that an intoxicated crew member does not cause or contribute to an oil spill.” 11 F.3d at 1195. The right l4a to test employees for alcohol or drug use upon a showing of reasonable cause, on threat of discharge, is critical to achieving the objective of the Coast Guard regulations and of the environmental protection statutes we have cited. Were employees permitted to refuse to submit to such chemical tests, it is difficult to imagine why any drug user would consent. The federal government has manifested its strong sup- port for drug testing of employees involved in mass trans- portation through the promulgation by all federal agencies governing mass transportation of regulations designed to prevent drug use by employees in safety-sensitive posi- tions. Such regulations in most instances equate refusal to test with a “positive” test result. See, e.g., 14 C.F.R. § 121 .455(c) (1995) (Federal Aviation Administration ) ; 49 C.F.R. §§ 219.213, 219.505, 219.603(b) & (c) (1994) (Federal Railroad Administration); 49 C.F.R. § 391.95(d) (1994) (Federal Highway Administration) ; 49 C.F.R. § 653.35(a) (1994) (Federal Transit Admin- istration); 10 C.F.R. § 26.27(c) (1994) (Nuclear Regu- latory Commission). The force of our decisions in Exxon I and II 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 em- ployee—even one in a safety-sensitive position—who re- fuses a drug test, we conclude that if Exxon had cause to require a test, Cash’s reinstatement following his re- fusal would violate public policy because it would under- cut enforcement of Coast Guard regulations and environ- mental statutes which denote a well defined and dominant public policy against permitting intoxicated crew members to operate oil tankers and other common carriers. Cf. Local No. P-1236, Amalgamated Meat Cutters & Butcher Workmen v. Jones Dairy Farm, 680 F.2d 1142, 1145 (7th Cir. 1982) (company rule forbidding employees 15a from reporting health violations violated public policy be- cause it hindered accomplishment of the goals of the Meat Inspection Act). c. Exxon recognized that under its collective bargaining agreement, the Union was entitled to grieve whether there was reasonable cause to require Cash to submit to a drug test. The Chairman found that Exxon lacked “cause” to require Cash to submit to a drug test, but that Cash was “insubordinate” for refusing to take the test. However. because discharge for insubordination was not mandated by the company policy, the Chairman determined that discharge was too harsh a sanction, and the panel ordered Cash reinstated without back pay. In considering Exxon’s challenge to the arbitral award, we do not review for legal error, but are limited to assess- ing whether the award “draw{s] its essence from the col- lective bargaining agreement.” W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766, 103 S. Ct. 2177, 2183, 76 L.Ed.2d 298 (1983). This standard is satisfied “ ‘if the interpretation can in any rational way be derived from the agreement, viewed in the light of its language, its context and any other indicia of the parties’ intention: only where there is a manifest disregard of the agreement, totally unsupported by principles of contract construction and the law of the shop, may a reviewing court disturb the award.’” Super Tire Engineering Co. v. Teamsters Local Union No. 676, 721 F.2d 121, 124 (3d Cir. 1983) (quoting Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1128 (3d Cir. 1969) ), cert. denied, 469 U.S. 817. 105 S. Ct. 83, 83 L.Ed.2d 31 (1984). See also News America Publications, Inc. v. Newark Typographical Union, Local 103, 918 F.2d 21, 24 (3d Cir. 1990) (“A court may not overrule an arbitrator simply because it disagrees with the arbitrator's construction of the contract or because it believes its interpretation of the contract is better than that of the arbitrator.” (citation omitted ) ). 16a Exxon argues that we should set aside the award be- cause the arbitrator exceeded his authority in reinstating Cash to his former position. In reviewing Exxon’s multi- faceted challenge to the arbitral decision 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 de- pends on drawing factual inferences not made by the ar- bitrator.” United States Postal Service v. National Ass’n of Letter Carriers, 839 F.2d 146, 148 (3d Cir. 1988). 1. The Cause Requirement Exxon argues that in interpreting the company drug policy’s requirement that “cause” support a drug test, the Chairman impermissibly inserted a “clear and convincing” evidence of ownership standard, and employed an “ex post” analysis to assess whether cause existed. The Union responds that the quantum of proof required in such cases is unsettled, but that where the offense charged is one that is punishable by law, such as drug possession, arbitrators have commonly held employers to a “clear and convinc- ing” or “beyond a reasonable doubt standard.” Brief of Appellee at 35 (citing Frank Elkhouri & Edna Asper Elkouri, How Arbitration Works 661-63 (4th ed. 1985)). It further maintains that neither the parties’ contract nor the company’s Drug and Alcohol Policy defined “cause,” identified a standard of proof to be employed, or specified at what point in time “cause” must exist; therefore, these determinations were within the province of the arbitrator. We agree. The parties bargained for an arbitrator to interpret their contract. The Exxon Drug and Alcohol Policy states: “{t]he Company . . . has the right to re- quire employees to submit to medical evaluation or al- cohol and drug testing where cause exists to suspect al- cohol or drug misuse.” App. at 44 (emphasis added). The term “cause” is ambiguous. Where a contractual am- biguity exists it is within the province of the arbitrator to interpret the ambiguous phrase. Suburban Transit 17a Corp., 51 F.3d at 380-81. Although the Chairman’s opin- ion may not be a model of clarity, it is evident that he ultimately concluded that Exxon lacked “cause” to re- quire Cash to submit to a drug test. That Exxon now disagrees with that conclusion is not a ground for vacat- ing his decision. Exxon could have defined “cause” more specifically in its policy, or could have bargained with the union to remove cases arising under its drug policy from the jurisdiction of arbitrators altogether. It did not, and therefore may not now be heard to complain that the ar- bitrator lacked authority to make determinations that the company policy and the parties’ agreement left open for an arbitrator’s judgment. 2. Change of Discipline Exxon next argues that the arbitrator lacked authority to reinstate Cash because the company’s September 28, 1988 letter clearly notified employees that termination was the penalty for violation of the Drug and Alcohol Policy. But the Drug Policy requires only that employ- ces submit to testing “where cause exists.” The arbitra- tor concluded that it did not; accordingly, based on his findings, the arbitrator did not exceed his authority. Exxon further maintains that the arbitrator lacked au- thority to change the discipline for a finding of insubordi- nation, and in doing so exceeded his power to interpret the contract. The arbitrator found that Cash’s refusal to take the drug test was insubordinate. Although company rules permit Exxon to discharge an employee for insubor- dination, the arbitrator believed that under these circum- Stances a discharge would conflict with the requirement that “cause” support an order to take a drug test. This situation is analogous to the one we faced in Super Tire, 721 F.2d 121. In that case, drinking alcohol dur- ing work hours was characterized in the parties’ contract as a cause for “immediate dismissal.” Jd. at 122. Yet dismissal also required “just cause.” Id. The arbitrator 18a determined that although the employee had been drinking during work hours, dismissal was too harsh a punishment because the employee had not been warned that the com- pany would strictly enforce its policy. We reversed the district court's order vacating the arbitrator’s determina- tion because we concluded that the terms of the contract were not so clear as to foreclose the arbitrator's inter- pretation that a warning was required. Jd. at 125. In Super Tire, we relied on our earlier decision in Arco-Polymers, Inc. v. Local 874, 671 F.2d 752 (3d. Cir.), cert. denied, 459 U.S. 828, 103 S. Ct. 63, 74 L.Ed.2d 65 (1982). There, a clause in the employment contract provided for discharge of employees absent from work for four consecutive days without good cause. Another section provided that employees shall be dis- charged only for “just cause.” Jd. at 753. The arbitrator reinstated an employee who had been terminated for be- ing absent from kork for 19 days without good cause. The district court vacated the award. We held that the district court erred because “[i]Jt cannot be said with absolute certainty . . . that discharge under this section is ‘strictly a function of management.’” Jd. at 756 (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584, 80 S. Ct. 1347, 1354, 4 L.Ed.2d 1409 (1960) ). Similarly here, the Agreement stated that insubordina- tion “shall constitute cause for which unlicensed personnel may be discharged.” App. at 147 (emphasis added). The subsequent September 1988 letter warned that the company’s Drug and Alcohol Policy would be strictly enforced. The policy included the provision that employ- ees must submit to drug testing “where cause exists.” App. at 44. The Chairman found that reading these provisions together, the “just cause” standard still applied, and because Exxon lacked cause to test Cash, discharge for insubordination would be inappropriate. As in Super Tire and Arco, we cannot say that the arbitrator’s read- 19a ing of the contract is implausible and that his decision to reinstate Cash was beyond the bounds of his authority. 3. Interpretation of Coast Guard Regulations Exxon also contends that the arbitrator exceeded his authority by interpreting Coast Guard regulations, be- cause an arbitrator’s decision must be based exclusively on the collective bargaining agreement. In light of the fact that the Chairman based his decision on the terms of the collective bargaining agreement, even though he referred to the Coast Guard regulations, see App. at 93, we have no occasion to consider whether, as Exxon claims, the Chairman interpreted the regulations incor- rectly. 4. Reasonableness of Arbitrator’s Findings Finally, we consider whether the Chairman’s finding in this case that Exxon lacked “cause” to order Cash to take a drug test was so unreasonable that it would violate public policy to enforce his award. The Chairman found that there was marijuana or marijuana residue in numer- ous places in the cabin Cash was using. Specifically, there was green leafy material in a desk and cabinet, ash on the rug, seeds under the rug, and two butts of mari- juana, referred to as “roaches,” in a suitcase pouch. The Union emphasized Cash’s minimal association with that room, in that Cash had been assigned there less than two days before and had spent only a few hours there because he was working long shifts elsewhere on the ship. At oral argument, Exxon argued that where, as here, a matter of public policy is involved, the arbitrator’s find- ings should be held to a higher standard of scrutiny and set aside if unreasonable. We find no authority for vacat- ing an arbitral award on such grounds. On the contrary, an arbitrator’s decision need be neither wise nor internally consistent. In fact, arbitrators have no obligation to ex- plain their reasons for an award or even to write an opin- ion unless the contract so requires. Virgin Islands Nurs- 20a ing Association’s Bargaining Unit v. Schneider, 668 F.2d 221 (3d Cir. 1981); see also United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598, 80 S. Ct. 1358, 1361-62, 4 L.Ed.2d 1424 (1960). Arbi- trators’ decisions are subject to a standard of only “mini- mal rationality.” Virgin Islands Nursing, 668 F.2d at 223 (quoting Robert A. Gorman, Basic Text on Labor Law 586 (1976)). Although we will vacate an award if we find that the award itself violates public policy, the public policy exception does not lessen our deference to ani ar- bitrator’s factual findings. The Supreme Court has made clear that findings of fact and inferences to be drawn therefrom are the exclu- sive province of the arbitrator. United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36, 44, 108 S. Ct. 364, 369-70, 374, 98 L.Ed.2d 286 (1987). That a court “is inquiring into a possible violation of public policy [does not] excuse a court for doing the arbitrator’s task.” Id. at 45. Thus, this court may not refuse enforce- ment even if we consider the evidence sufficient to prove that reasonable cause existed to require Cash to submit to a drug test. Exxon challenges the reasonableness of the arbitrator’s conclusions, but “[nJo dishonesty is al- leged; only improvident, even silly, factfinding is claimed.” Id. at 39, 108 S. Ct. at 371. It is not our role to draw inferences that the factfinder did not. We therefore will not disturb the arbitrator’s finding that “cause” did not exist to require Cash to sub- mit to a drug test. Accordingly, because we accept the arbitrator’s finding that Cash was ordered to submit to a test without reasonable cause, his reinstaterent does not offend public policy and the decision of the arbitrator must be enforced. Ill. For the foregoing reasons, the order of the district court will be affirmed. 2la UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 95-5027 EXXON SHIPPING COMPANY, Appellant Vv. EXxON SEAMAN’S UNION On Appeal from the United States District Court for the District of New Jersey (D.C. No. 93-cv-00689) Present: Sloviter, Chief Judge, Alito Circuit Judge, and Rendell, District Judge* JUDGMENT This cause came on to be heard on the record from the United States District Court for the District of New J ersey and was argued by counsel September 11, 1995. On consideration whereof, it is now here ordered and adjudged by this Court that the judgment of the said District Court entered on December 12, 1994, be, and the same is hereby affirmed. Costs taxed against appellant. *Hon. Marjorie O. Rendell, U.S. District J udge for Eastern District of Pennsylvania, sitting by designation. 22a All of the above in accordance with the opinion of this Court. Dated: January 11, 1996 Attest: s/ P. Douglas Sisk Clerk | : ’ ’ ' 23a [Filed Dec. 8, 1994] APPENDIX B UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Chambers of NICHOLAS H. POLITAN Judge NOT FOR PUBLICATION December 8, 1994 LETTER OPINION ORIGINAL ON FILE WITH CLERK OF THE COURT Re: Exxon Shipping Company v. Exxon Seamen’s Union Civil Action No. 93-698 (NHP) Dear Counsel: This matter comes before the Court on a motion of defendant Exxon Seamen's Union for summary judgment pursuant to Fed.R.Civ.P. 56 to confirm and enforce an arbitration award. Plaintiff Exxon Shipping Company opposes the motion, and cross-moves for summary judg- ment to vacate the arbitration award. For the reasons stated herein, defendant's motion for summary judgment is GRANTED, and plaintiff's cross-motion for summary judgment is DENIED. STATEMENT OF FACTS* Exxon Shipping Company (“Exxon”) operates Amer- ican Flag ships and other vessels on the high seas and on *The Court’s recitation of the facts of the dispute is derived from the Opinion of the Neutral Chairman of the Arbitration Board dated November 27, 1992. 24a the inland waterways of the United States. Exxon Sea- men’s Union (“Union”) is the sole and exclusive collec- tive bargaining representative of all unlicensed personnel employed by Exxon in the deck department, the engine department, and the steward’s department on-board Exxon’s vessels. Exxon and the Union were parties to a collective bargaining agreement (“CBA”) that had an effective date of July 31, 1985, and which was to expire on August 31, 1987. Prior to and after the expiration of the 1985-87 CBA, the parties negotiated for a successor agreement. On March 29, 1988, Exxon declared an im- passe in negotiations, and advised the Union and its mem- bers that Exxon’s final proposals would be implemented effective April 1, 1988. All the terms of the 1985-87 CBA that were not part of the negotiations were to be continued in full force and effect. At all times after April 1, 1988, the discipline clause from the 1985-87 CBA was in effect. The clause indi- cated that an employee could be discharged only for “cause”. The terms and conditions that were implemented effective April 1, 1988 also contained a grievance and arbitration provision. The provision provided for a two- step process culminating in arbitration before an Arbitra- tion Board, composed of one representative of Exxon, one representative of the Union, and a neutral arbitrator sit- ting as chairperson. The grievant in this case is Alan B. Cash (“Cash”). Cash was employed by Exxon for approximately thirteen years. He started with Exxon as a seaman and worked his way up to chief pumpman. It is agreed by the parties that the responsibilities of a chief pumpman include moving cargo on and off ships and properly aligning pumps for the transfer of products. On or about May 10, 1989, Cash was assigned to the oil tanker Exxon Wash- ington, anchored in San Francisco Bay. Prior to that date Cash was stationed on the ship Exxon Benicia in Japan. For the period of May 10-15, 1989, Cash was ee 25a quartered in the second pumpman’s room on the Exxon Washington. On May 15, 1989, the chief pumpman of the Exxon Wask. ‘>n left the ship on a family emergency. That day, Cash was assigned to the chief pumpman’s room. The room was not cleaned before it was occupied by Cash. For fire safety reasons, all rooms on the Exxon Washington were left unlocked and were accessible to cleaning personnel and members of the crew. Accordingly, Cash ordinarily left his cabin door unlocked. During May 15-17, 1989, Cash worked almost around the clock. On May 17, 1989, Exxon conducted an unannounced drug search of the Exxon Washington. All the rooms of the ship were searched. During the search of the chief pumpman’s room—then Cash’s quarters—the search team and their dogs discovered portions of a marijuana plant in a desk drawer, marijuana ash by the bed post, several marijuana seeds under the carpeting, and two marijuana cigarette butts, or “roaches”, in the pouch of a suitcase. As a result of the search, Exxon requested that Cash take a drug test. Cash refused, and was subsequently discharged. By letter dated June 6, 1989, Exxon advised Cash that he was terminated for violations of Exxon’s policy on alcohol and drug use; that he was in possession of illegal substances; and that he refused to submit to a drug test. The Union filed a grievance to protest Cash's : discharge. When the parties were unable to resolve the grievance informally, the dispute was submitted to arbi- tration before an Arbitration Board (“Board”). During these proceedings, Cash's testimony regarding the luggage, in which thé marijuana roaches were discovered, varied. First, Cash stated that the luggage was a gift from his wife. Later, Cash asserted that the luggage was not his, but rather that he took it from a store room on his previ- ous ship without inspecting it first. Furthermore, Cash testified that he did not clean the chief pumpman’s room before occupying it or any time thereafter. iii 26a In an Opinion and Award dated November 27, 1992, the Board found that Exxon did not have “cause” to dis- charge Cash, and ordered him reinstated without back pay.” The Board ruled as follows: . . . in 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. | If there was no reasonable cause to conclude that grievant brought the drug into the cabin—and the above analysis finds that there was not—then the Coast Guard regulations would not call for a drug test, and no violation of the regulations could be said to exist. The question of whether there was cause under the company policy will be considered below. The matter of the suit case is the weakest point of Mr. Cash’s defense against the charge that he vio- lated company policy by introducing marijuana into his cabin. (Even in light of this, the higher Coast Guard standard of “reasonable cause” could not be met because of a) previous occupancy of the room, b) lack of drugs in grievant’s previous room, and c) the other considerations discussed above. The lower company standard conceivably might have been met by the suitcase materials. ) Mr. Cash was either incorrect when he told the PRC 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 assertion that when he got the piece it was used, that weakness of testimony may make no difference. The undiscovered cigarette ends 2 The decision not to award back pay was based on the Board's finding that Cash had been insubordinate in refusing to take a drug test. The Opinion stated that the “grievant violated the fundamental rule that except when an order imperils health or safety, employees must first obey an order and then grieve.” a si nia e Sila ial ii alae 27a could have been in the pouch no matter how the bag was obtained... . 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. The chairman has found that there is considerable doubt Mr. Cash brought the other drug traces into the cabin. The most that can be said about the butts in the bag is | that they would be strongly suspicious in the absence of the contrary circumstantial evidence about the other materials found... . 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 cre- ate problems about grievant’s refusal to take the test : even if the above discussion raises question[s] con- cerning the basis for the test order.) The instant | review of the findings concludes, however, that even | thsugh drug 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. And Mr. Shearer’s testimony estab- lished that Mr. Cash’s appearance and actions pro- vided no basis for ordering 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 a test on the basis of what was found in the cabin would have led to reversal of any discipline based on [the] test results. [In light of this finding, the chairman ruled that] . grievant violated the fundamental rule that lll ait ” ——— er ee ae SaaS 28a except when an order imperiis health or safety, em- ployees must first obey an order and then grieve... . Opinion of Arbitration Board (Nov. 27, 1992). As a re sult of these findings, the Board’s award reinstated Cash without back pay. On February 18, 1993, Exxon filed suit against the Union in the United States District Court, District of New Jersey, arguing that the award violated well defined and dominant public policy, and that the Board exceeded its authority. The Union now moves for summary judgment pursuant to Fed.R.Civ.P. 56 to confirm and enforce the arbitration award. Simultaneously, Exxon cross-moves for summary judgment to vacate the award. DISCUSSION A. Standard of Review for Summary Judgment Motions Under Fed.R.Civ.P. 56, summary judgment may only be granted if, drawing all inferences in favor of the non- moving party, there is no genyine issue of material fact and the movant is entitled to judgment as a matter of law. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dismissed, 483 U.S. 1052 (1987). The burden of proof is on the moving party to demonstrate the absence of a genuine issue of material fact. See Celo- tex Corp. v. Catrett, 477 U.S. 317 (1986). If this burden ) is satisfied, the non-moving party is saddled with the obli- gation of identifying specific facts which illustrate that there is a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). In the case at bar, the arbitrator’s findings of facts may not be disturbed. The question of whether there are grounds to vacate an arbitration award is a question of law. Accordingly, this matter is appropriately resolved on motion for summary judgment pursuant to Fed.R.Civ. P. 56. sateen NE TS Sete sortie 29a B. Standard of Review for Arbitration Awards According to well settled law, courts have only a limited power to review a labor arbitration award insti- tuted pursuant to a collective bargaining agreement. Stroehmann Bakeries, Inc. v. Local 776, Int'l Brotherhood of Teamsters, 969 F.2d 1436, 1441 (3d Cir.), cert. de- nied, U.S. ——, 113 S. Ct. 660 (1992). “The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36 (1987), quoting United Steelworkers of Amer. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 (1960). “As long as the arbitration award ‘draws its essence from the collective bargaining agreement,” and is not the arbitrator's own brand of justice, a court may not vacate the award. /d., quoting Steelworkers, 363 U.S. at 597. This is true even if the court finds the basis for the award to be ambiguous or disagrees with the board’s findings, contract interpreta- tions, or choice of remedies. /d. at 36-[3]8. “A reviewing court is ‘bound—under all except the most limited cir- cumstances—to defer to the decision of the arbitrator, even if that decision finds the facts and states the law erroneously.’” Phoenix Newspapers, Inc. v. Phoenix Mailers Union Local 752, 989 F.2d 1077, 1080 (9th Cir. 1993); see also Exxon Shipping Co. v. Exxon Sea- men's Union, 801 F. Supp. 1379, 1384 (D.N.J. 1992) (citation omitted) (“Fris”). Accordingly, this Court be- gins its analysis with the presumption that the Board’s award is valid. C. The Public Policy Exception The Supreme Court has recognized a narrow exception to the general unwillingness to tamper with arbitrators’ awards in labor contexts. See Misco, 484 U.S. at 43, relying on W.R. Grace & Co. v. Local 759, Int'l Union of United Rubber Workers, 461 U.S. 757, 766 (1983). a i, 30a A court may refuse to enforce an arbitrator’s award where it would violate an explicit, well defined and dominant public policy which is ascertained “by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Jd., quoting Muschany v. United States, 324 U.S. 49, 66 (1945). The public policy exception is triggered when enforce- ment of an arbitration award would compel one party to take action which conflicts with a well defined and dominant public policy. Brown v. Ruascher Pierce Refsnes, Inc., 994 F.2d 775, 782 (11th Cir. 1993) (cita- tion omitted). “{T]he critical inquiry is not whether the | underlying act for which the employee was disciplined : violates public policy, but rather whether there is a public policy barring reinstatement of an individual who com- mitted the wrongful act.” Stead Motors v. Automotive Machinists Lodge No. 1173, 886 F.2d 1200, 1215 (9th Cir. 1989) (en banc) (emphasis in original), cert. de- nied, 495 U.S. 946 (1990), citing W.R. Grace, 461 US. at 766; see also Monroe Auto Equip. Co. v. International Union, 981 F.2d 261, 269 (6th Cir. 1992) (citation | omitted), cert. denied, US. , 113 S. Ct. 2396, | reh’g denied, U.S. , 113 S. Ct. 3066 (1993). While notions of public policy are to be ascertained by reference to positive law and not from general con- siderations of the public interest, the Third Circuit has nevertheless adopted an expansive view of what consti- tutes positive law. See Exxon Shipping Co. v. Exxon Seamen’s Union, 993 F.2d 357, 364 (3d Cir. 1993) (“Foster”). In Foster, the Third Circuit ruled that “the contours of positive law are broad enough to include not just specific rules or prohibitions but also the stated purposes behind these rules or prohibitions.” /d. In the matter presently before the Court, Exxon sub- mits that reinstating Cash to his former position would conflict with a well defined and dominant public policy of continuing employment of a person who refuses to aa 3la submit to a drug test. Exxon asserts that this public policy is embodied in two sources. The first is the drug and alcohol policy promulgated by Exxon.* Exxon’s pol- icy, however, did not mandate that employees who re- fused to submit to drug tests be discharged. Exxon’s policy, reflected in its letter dated March 29, 1988, only stated that dismissal was a possibility. Therefore, in con- trast to Exxon’s assertion that the Board ignored the CBA, the Board followed Exxon’s policy by denying Cash back pay. The second source of public policy upon which Exxon relies is the United States Coast Guard ( “USCG”) regu- lations. See 46 C.F.R. § 16. Exxon asserts that the USCG regulations demand that a seaman’s refusal to be tested equates to a positive test result. See 46 C.F.R. § 16.250. The USCG regulations establish pre- employment, random, post-accident, and reasonable cause testing requirements. However, the only penalty provi- sions providing for discharge are found in the USCG regulations governing post-accident testing, see 46 C.F.R. §§ 4.06-05, 4.06-10, and where a crew person tests posi- tive for an illegal substance, see 46 C.F.R. § 16.201(c). A Re UR AL NE eee tl hd ae Ae Ne A te el OIE a am * Exxon points to cases, from this and other circuits, where courts have declined to enforce arbitration awards that rein- stated employees discharged for being impaired on the job. In this case, however, it was never alleged that Cash was under the influence of a controlled substance. In fact, the Board determined that there was no reasonable cause to even conclude that Cash was in possession of marijuana. Wat acine * Exxon’s policy provides: The Company also has the 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 dis- ciplinary action, including dismissal. q Letter from Exxon to the Union and its members, dated March 29, 1988 (emphasis added). | rane _ 32a In contrast, under the USCG regulations for reasonable cause testing,’ the only penalty provided for when the individual refuses to submit to the test is that his or her name is entered into the vessel’s official log book. 46 C.F.R. § 16.205(d). Therefore, Exxon’s reliance on the USCG regulations for the argument that a well defined and dominant public policy precludes the reinstatement of Cash is misplaced. D. Arbitration Board Did Not Exceed Its Authority Finally, Exxon asserts that the Board’s award must be vacated because it does not draw its essence from the CBA. Exxon argues that the Board, in reaching its deci- sion, exceeded its authority by interpreting certain USCG regulations, rather than the CBA. The Union contends that the Board did not exceed its authority by ordering that the grievant be reinstated without back pay. A federal court “may only set aside an arbitrator’s award interpreting a CBA when the interpretation can- not be said to be in any rational way derived from the agreement.” Teamsters Union Local No. 115 v. DeSoto, Inc., 725 F.2d 931, 934 (3d Cir. 1984); see also Super | Tire Engineering Co. v. Teamster Local Union No. 676, 721 F.2d 121, 123-24 (3d Cir. 1983), cert. denied, 469 U.S. 817 (1984). Additionally, a highly deferential | standard of review is extended to the arbitrator’s sub- stantive decision as to what constitutes reasonable cause for discharge. Interstate Brands Corp. v. Chauffeurs, 909 F.2d 885, 889 (6th Cir. 1990) (citation omitted), cert. 5 The USCG regulations governing reasonable cause testing pro- vide that an employer may only order a crew person for a drug test based upon a “reasonable and articulate belief that the in- dividual has used a dangerous drug based upon direct observation of specific, contemporaneous, physical, behavioral or performance indicators of probable use.” See 46 C.F.R. § 16.250(b). In the present case, the Board determined that reasonable cause did not exist under the USCG regulations to order Cash to submit to a drug test. 33a denied, 499 U.S. 905 (1991). “In the absence of an unambiguous provision in the agreement mandating dis- missal . . ., [the court] will not set aside an arbitrator’s decision to review a dismissal in light of the mix of factors that make up just cause.” Super Tire, 721 F.2d | at 125. In the instant case, the parties bargained for an arbi- trator to tell them what was “just cause” for discharge and what was not. The Board gave full consideration to the parties’ agreements and interpreted the meaning of the combined agreements. Pursuant to its authority, the Board fashioned a remedy in accordance with the juris- diction with which it was vested. Accordingly, the Board did not exceed its authority when it determined that in this case, just cause did not exist to discharge Cash. In consenting to the Arbitration Board’s jurisdiction over this dispute, Exxon agreed to have the Board inter- pret the collective bargaining agreement and to fashion an appropriate remedy. The Board construed the agree- ment and, upon due deliberation, found that Cash’s dis- charge was improper. In ordering Cash reinstated with- out back pay, the Board fashioned an appropriate remedy. Furthermore, the Board’s award does not violate any well defined or doininant public policy. CONCLUSION . For the foregoing reasons, the summary judgment mo- tion of defendant Exxon Seamen’s Union is GRANTED, and the cross-motion for summary judgment of plaintiff Exxon Shipping Company is DENIED. An appropriate Order accompanies this Opinion. ete ee OS /s/ Nicholas H. Politan NICHOLAS H. POLITAN U.S.D.J. A eee 34a [Filed Dec. 8, 1994] UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Civil Action No. 93-689 Hon. NICHOLAS H. POLITAN Exxon SHIPPING COMPANY, a Delaware Company, Plaintiff, v. Exxon SEAMEN’S UNION, Defendant. ORDER This matter having come before the Court on a motion of defendant Exxon Seamen’s Union for summary judg- ment pursuant to Fed.R.Civ.P. 56 to confirm and enforce an arbitration award, and the cross-motion for summary judgment pursuant to Fed.R.Civ.P. 56 of plaintiff Exxon | Shipping Company to vacate the arbitration award, and the Court having considered the matter and the submis- sions of the parties, and for the reasons appearing more particularly in the Letter Opinion of this Court; and good cause having been shown. IT IS on this 8th day of December, 1994, ORDERED that the motion of defendant Exxon Sea- men’s Union is GRANTED, and the cross-motion of plaintiff Exxon Shipping Company is DENIED, and the Complaint is hereby DISMISSED. /s/ Nicholas H. Politan NICHOLAS H. POLITAN U.S.D.J. [Entered on Docket 12-12-94] a ns ae ee nn oT gi eg eRe Edin ARI Smt Le ia 35a APPENDIX C IN THE MATTER OF THE ARBITRATION BETWEEN Exxon SEAMEN’S UNION and EXXON SHIPPING COMPANY TERMINATION OF ALAN B, CASH Opinion of Neutral Chairman Award of Panel Panel of Arbitrators: Maurice C. Benewitz, Neutral Chairman William P. Hoeler, Company Appointed Arbitrator Howard A. Goldoerger, Esq., Union Appointed Arbi- trator Appearances For the Union: Howard A. Goldberger, Esq., Counsel For the Company: Albert R. Galik, Esq., Counsel Three hearings were held by the panel of arbitrators on July 16, 1991, January 22, 1992 and April 16, 1992 at Newark, New Jersey to hear and consider a contro- versy concerning the termination of Pumpman Alan B. Cash. The parties were unable to agree on a submission. After full consideration of the testimony, evidence and argument, the chairman concludes that the usual language for a disciplinary discharge fairly would allow both par- ties to present their evidence and submit their arguments. Therefore, he finds and rules that the issue presented should read: 36a Was the discharge of Alan Cash for just cause? If not, what shall be the remedy? In such a disciplinary proceeding, the burden lies upon the employer who effected the discharge. The hearings were transcribed. Briefs were submitted by the parties. After the chairman had read the briefs and reviewed the record, he held a telephonic conference call with the other members of the panel. Thereafter, the proceedings were closed and the instant opinion and award was written. The opinion is solely that of the chairman. The award is that of the chairman and of those members of the arbitration panel who sign as concurring. The Contract At the time this grievance arose, the collective bargain- ing agreement dated effective July 31, 1985 (Ex. J-1) had expired. On March 29, 1989, the company declared an impasse in bargaining for a successor contract (Ex. C-1). Management stated that its final offer, with certain exceptions, would be implemented on April 1, 1988. Some amendments to continuing provisions in the expired contract also appeared. The Policy Statement Included with the promulgated materials was a policy statement on drug and alcohol abuse. The first paragraph read as follows (emphasis applied by chairman): Exxon Shipping Company is committed to a safe, healthy, and productive work place for all employees. The Company recognizes that alcohol, drug, or other substance abuse by a few employees will impair their ability to perform properly and can have seri- ous adverse effects on the safety, efficiency, and pro- ductivity of other employees and the Company as a whole. The misuse of legitimate drugs or the use, 37a possession, distribution, or sale of illicit or unpre- scribed controlled drugs on Company business or premises is strictly prohibited and is grounds for termination. Possession, use, distribution, or sale of alcoholic beverages on Company premises is not allowed without prior approval of appropriate senior management. Being unfit for work because of use of drugs, or alcohol is strictly prohibited and is grounds for termination of employment. While this policy refers specifically to alcohol and drugs, it is intended to apply to all forms of substance abuse. The fourth paragraph read (emphasis applied by chairman): Exxon Shipping Company may from time to time conduct unannounced searches for drugs and alcohol on owned or controlled property. The Company also has the 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. fhe material also included guidelines for application of the policy. by masters, captains, managers and super- visors. The first 2 paragraphs read (emphasis applied by chairman): 1. At the discretion of the President or Fleet Man- ager, the Company may conduct unannounced alcohol and drug searches on owned or controlled property where there is reasonable cause to sus- pect that these substances may be present. Rea- sonable cause may include searches in operations where use of these substances could create an unsafe situation. 38a 2. The decision to require an employee to submit to testing for drugs and alcohol requires the ad- vance endorsement of the Human Resources Man- ager. Prior to any testing, the employee must sign an Informed Consent form. In cases where a medical evaluation is deemed appropriate, med- ical personnel should be asked to collect a urine and/or blood sample for testing to determine the presence of alcohol and/or drug. Blood tests will not be taken on board ship by vessel personnel. If circumstances prevent medical evaluation from being conducted soon after the “for cause” inci- dent, the Management may collect and properly process the urine sample. Thereafter, in compliance with an opinion and award of Arbitrator Daniel F. Brent (AAA Case No. 18 30 0062 85N) the company on September 27, 1988 issued a notice to all employees (Ex. C-4). The writing reiterated the policy and guidelines noted above. The writing cited Coast Guard regulations prohibiting operation of a vessel while intoxicated. The company gave further notice that violation of the Company Alcohol and Drug Use Policies, or regulations governing alcohol or drug use in the work place will result in immediate termi- nation from the vessel . . . termination of employment is the penalty for violation of these standards. [The union, until after the events involving Mr. Cash, did not concede that the company had the power to issue and enforce this policy in its various forms. The union officials advised the members not to take drug tests when ordered to do so by company officials. Such advice was given to the grievant, Mr. Cash. These matters will be considered below. ] 39a Prior Awards In addition to the Brent award cited in the September 27, 1988 document discussed above, the parties sub- mitted 4 other awards dealing with alleged drug or alco- holic problems. For reasons which will be discussed below, the awards of panels chaired by Arbitrators Her- bert L. Marx, Jr., David N. Stein, and Martin F. Shein- man are inapposite. The dispute before Arbitrator Joan Parker had many resemblances to that here at issue. So the Parker award will have to be considered carefully. The grievant in the case before the Marx panel was found to have been impaired by alcohol. This was an announced reason for termination of employment, the panel ruled. The grievant in the instant matter, Mr. Cash, was not charged with being under the influence of either alcohol or drugs and so the Marx award is not really applicable. Nor can the arbitrator substitute his judgment where rules and penalties are posted. The award does make several statements which may have some relevance. The award finds that while the drug and alcohol policy refers to testing, the policy “leaves the option for such testing to the Company.” The Coast Guard regulations allow the ship’s master to rely on . observation or on a chemical test at his option. The grievant in the case decided by the Stein panel had, in June 1988, completed an inpatient program treat- ing cocaine addiction. This occurred under the company’s confidential counselling program. The grievant then was assigned to a ship and was suspended 6 months later for failure to report to duty for circumstances not beyond his control. The drug and alcoholism program was re- viewed with the grievant. The grievant was expected to report for assignment on April 20th after another assignment and leave. But he was directed to report to the company earlier because his wife had called in to say she believed he was involved 40a with drugs. The reason given to grievant for calling him in was to discuss his next assignment. When he reported, he was asked to take drug and alcohol tests and agreed to do so. At the time of the tests, grievant admitted using drugs and the tests so demonstrated. After consideration, grievant was discharged. The company contended that under its policy, a test could be administered for “cause” rather than for “prob- able cause” or “reasonable cause,” i.e., for a “reasonable suspension.” Arbitrator Stein found that under Paragraph 1 of the Guidelines for implementation of its policy, the com- pany had committed itself to a reasonable cause standard for searches or for testing of individuals. The words “for cause” in Paragraph 2 were found to refer back to the words in Paragraph 1. Furthermore, the Coast Guard documents cited by the company, refer to “reasonable cause.” Whatever the standard, it was ruled, the company lacked it. The med- ical information was privileged and should not have been used. The wife’s information was unreliable. Nor had the grievant used drugs on company property, it was found. For all these reasons, the arbitrator ruled that the | positive drug test results should be suppressed. Thus there was no just cause for the discharge. The issue of back pay was remanded with the arbitrator retaining jurisdiction. The situation at issue was insufficiently similar to that involving Mr. Cash for the Stein award to be of assistance in the instant matter. Mr. Cash was not charged with using or being under the influence of alcohol or drugs. In the dispute before the Scheinman panel, cause prop- erty was found to test the grievant; and he tested positive for marijuana although there was question whether he ingested it on company property. The facts again were ST SE 4la strongly differentiated from those concerning Mr. Cash who never was found to have used marijuana. Dr. Parker considered 2 discharges for alleged viola- tion of company Rule 14 which prohibited introduction, possession or use on company property of alcohol or illegal drugs. Two ships were searched by contractors using detection dog. In the room of one grievant, a homemade pipe con- taining marijuana was found. The room of the other grievant contained a hand-rolled cigarette butt and an alligator clip which both tested positive for marijuana. Both grievants denied that the discovered materials be- longed to them. Individuals had been admitted into the locked room of one grievant to measure for new carpet- ing. The second grievant had lived in the room for only 8 days between September 20th and October 26th be- cause the room was being renovated. Since this grievant had been worked 12 to 16 hours after moving in, he allegedly had been unable to clean the room. He did find and keep the alligator clip which had been present ‘When he moved into the room. The union noted that the rooms had been occupied by employees who were on leave and who had left their belongings. In addition, workers had been in the rooms to renovate them. The doors of the rooms often were not locked. One of the grievants refused on union advice to take a drug test. Dr. Parker ruled on two aspects of this dispute. One concerned the validity of the drug and alcohol policy and the method of enforcing it. Since that issue was not raised in the Cash arbitration, the instant chairman will not consider that portion of the Parker award. Dr. Parker ruled on the “central issue” of the grievants’ “actual” or “constructive” possession of the marijuana discovered in their rooms. An employee may be held responsible for marijuana found in his room if he had reason to know that others 42a might have left the marijuana there, the arbitrator ruled. But there would be no violation of the company rule for the same employee if someone placed the drug in the room without his knowledge. In cases based on circum- stantial evidence only, that evidence “must lead to one and only one logical conclusion,” Dr. Parker wrote. Due to rules on fire safety, room doors are left un- locked. Many different persons worked in the rooms while they were being refurbished and could have left materials behind before the grievants took possession. Thus the grievants did not have exclusive control of their rooms, the arbitrator concluded. Others could have en- tered and left behind small amounts of marijuana. The evidence provided room for doubt about whether the grievants had possessed the marijuana, the arbitrator ruled. Because of problems with mitigation, reinstate- ment was not accompanied by full back pay. The Dispute On May 17, 1989, Alan Cash, the grievant, was a pumpman on the Exxon Washington, a tanker in the company’s fleet. The vessel was at anchor in San Fran- cisco Bay. William G. Newman, a contractor who was assisted by an agent of his company, used 2 canines, Tuit and Mo, to search the vessel for drugs on May 17th (T. I. 83). Mr. Newman has a background as a law enforcement officer who worked in the area of narcotics detection. He testified to extensive training in the identification of drugs (T. I, 63-65). The witness used chemical field tests in identification of marijuana (T. I, 66). Among the other skills the witness has learned and taught is the methodology in the use of the Becton Dickenson Duquenois-Levine test which is utilized in field testing for marijuana (Ex. C-7) (T. I, 78). 43a On May 17, 1989, the search team personnel and the dogs were introduced to the ship’s crew. The crew was searched before the vessel’s areas were examined (T. I, 130-131). The living quarters and other areas of the vessel then were searched. When the room of Mr. Cash was examined, grievant was present as well as the tem- porary ship’s representative Taylor Kissinger (T. I, 85- 86). The search in Mr. Cash’s room was the same as in the other areas and included (T. I, 87) all of the cabinets, desks, the restroom, suitcases, any personal item in the room, also the ceiling, the bed, everything in the room. Items allegedly associated with marijuana were dis- covered. The dogs both were used and gave alerts (T. 89-90). Green plant material was found in a cabinet drawer and in the desk (T. I, 91). This was placed in an evidence bag and an identifying notebook sheet was put in the bag (T. I, 96). Two cigarette ends or “roaches” were found in a suitcase pouch and were placed in an evidence bag with an identification notebook sheet. Grievant had stated the suitcase was his (T. I, 98). Green ash was discovered by the bedpost and was bagged and labeled (T. I, 100-101). Marijuana seeds were found— according to the testimony (T. I, 101) in various: areas of the room’ under the carpet ‘and then also on the carpet. These seeds were bagged and had an identifying paper written (T. I, 101). {When field tests were perforined in the captain’s quar- ters, identification sheets were written by Mr. Newman. The information on these sheets (Exs. C-8, C-9, C-10) was transcribed from the notebook sheets placed in the 3 evidence bags (T. I, 103). The chairman noted at the hearing and again repeats that the contemporaneous writ- ing (Ex. C-9) differed somewhat from the testimony in describing the location where the marijuana seeds were 44a found, i.e., “l. various areas under the carpet”. (Em- phasis applied by chairman. ) ] The ends of the cigarettes were examined microscopi- cally and by application of the Duquenois-Levine test. They were identified positively as marijuana (Ex. C-8). The seeds and green ash material were identified by micro- scopic examination (Ex. C-9). And the green plant ma- terials from cabinet and desk were identified by both microscopic examination and chemical test (Ex. C-10). In each case, only part of the material was used. The remainder was sealed in the plastic bags. Red evidence tape was used (T. I, 111). (See Exs. C-14, C-15, C-16). The bags then were sealed in a “Federal Express envelope or box” and sent to an independent laboratory in Fort Collins, Colorado for a confirming GMS test (T. [1 12). The ash material was tested at the independent labora- tory and not by Mr. Newman (T. I. 124). [The cross of this witness and of Robert K. Lantz, Ph. D. of the Rocky Mountain Instrumental Laboratories raised chain-of-custody questions as well as other issues. The chairman will not review this aspect of the case be- cause the decision in the dispute will not turn on such questions. The chairman is satisfied from the field tests— and from the laboratory tests as well, setting aside chain- of-custody questions—that the materials found in Mr. Cash’s room contained, or were, marijuana. The ques- tion on which this opinion will turn is whether Mr. “ash was shown to be the person responsible for the marijuana in that room.] On cross, Mr. Newman testified that he was told a) that Mr. Cash had previously occupied another room and b) that someone else previously had occupied the room Mr. Cash was in at the time of the search (T. I, 138- 139). The room Mr. Cash had occupied before moving to the cabin in question had been examined. The Newman team examined all of the rooms. The team “had found nothing in any of the other rooms .. .” (T. I, 139). 45a (The Canine Detection Incorporated identification sheets (C-8), (C-9), (C-10), were again introduced through Dr. Lantz. The exhibits at the time of readmission (Exs. C-14, C-15, C-16) had evidence bags attached. These bags contained seeds or small amounts of other material. As the chairman already has noted, the evidence of Dr. Lantz, through whom these exhibits entered, will not be reviewed here. ] Further Company Testimony Grady T. Shearer, III, a west coast personnel specialist, was involved in the May 17, 1989 search of the Exxon Washington (T. III, 5-6). Mr. Shearer testified that al! the rooms and common areas were searched (T. III, 7). Ship’s representative Taylor Kissinger was invited to go along with the search team, the witness stated. Mr. Kis- singer was present when Mr. Cash’s room was searched (T. III, 8-9). (The search process was explained. But in light of the chairman’s conclusion that marijuana in- deed was found in grievant’s room, this description need not be reviewed. The same remark is appropriate with regard to the description of the testing process in the captain’s quarters. ) Mr. Shearer did testify that while the testing was going on, Mr. Cash sometimes was in the room and sométimes was not. “He came in and out” (T. III, 21-22). Taylor Kissinger was present throughout the testing (T. III, 25). The ship’s representative signed the evidence tape on each specimen bag after Mr. Newman sealed it (T. III, 31). When he was informed of the positive results of the field tests by Mr. Newman, Mr. Shearer contacted Acting Human Resources Manager David Walker in Houston to obtain permission to require a drug test from Mr. Cash (T. HI, 33). After Mr. Walker concurred, the manage- ment personnel on the ship were informed, and grievant, 46a with Mr. Kissinger present, was told he would be required to take tests for drugs and alcohol. Mr. Cash would not agree to be tested (T. III, 34). Grievant was informed that his refusal would lead to discharge from the vessel and probably from the company (T. 34-35). Mr. Kissinger called the union. Grievant again refused and was discharged from the vessel, paid some monies due him, and sent ashore (T. III, 35). Prior to the search, Mr. Shearer testified on cross, no one aboard the ship was charged with being under the in- fluence of or of using or possessing drugs. Nor could the witness say that from his observation, Mr. Cash either was under the influence of or used drugs (T. III, 44). The witness also said that what was detected in Mr. Cash’s room was “the only thing we found, yes” (T. III, 44) [in the vessel. ] Mr. Shearer emphasized that grievant was told he had no choice about taking the test. When asked whether there would have been no discharge if Mr. Cash had taken a test which was negative, the witness said cz. © 45) I don’t know. That’s speculative. I don’t know what would have happened. On recall, the witness insisted that he told Mr. Cash several times of the consequences of not taking the drug test (T. IIT, 246). On cross it developed that while a vessel search had been scheduled for the period around May 17, 1989, the Exxon Washington was selected as the ship to be searched because another crew member had reported finding a hand rolled cigarette upon joining the vessel on May 10th (Ex, U-2) (T. Il, 53). Mr. Shearer was aware that several weeks after the incident, i.e., June 2, 1989, (See Exs. J-2A, U-4), the union offered the company the opportunity to test Mr. Cash (T. III, 59). 47a In May 1989, David Walker was the labor relations coordinator for Exxon Shipping Company and also was acting human resources manager. (The manager, Dan Paul, was in Valdez, Alaska) (T. III, 74). On May 17, 1989, Mr. Walker was informed by Mr. Shearer of the vessel inspection. The witness was told that dogs had alerted during the search of Mr. Cash’s room aud that materials which tested as marijuana were found (T. III, 95-96): The company’s policy as well as the requirements in the Coast Guard regulations were that such a finding constituted reasonable cause to require a drug test (T. III, 96). The witness authorized the test. He later learned of grievant’s refusal to take the test. This led to discharge from the vessel (T. III, 97). A meeting of the personnel relations committee, which grievant and his union representative declined to attend, was held on June 5, 1989, Mr. Walker testified. The witness did have a telephone conversation on June Sth, with John Farrell, a member of the union’s board of governors (T. IIT, 98). The personnel relations committee had a report from the search committee about what was found. It had the subsequent independent laboratory report. In light of the facts that all employees had been informed of the com- pany policy and that Mr. Cash had refused to take the drug test, discharge was recommended. (Mr. Farrell told Mr. Walker that grievant was willing to take the test on June Sth. The offer earlier had been made by Mr. Farrell to the company’s labor relations analyst, Jeanne Kraus). (T. IIIf, 104). Mr. Cash was terminated after the committee recommendation (T. III, 109). The reason the offer to take the test was refused was that it allegedly would not have given a good indication of drug use as of May 17th, and because Mr. Cash had been obligated to take the test at the time he was directed to do so on May 17th (T. III, 105). 48a When the chairman asked, Mr. Walker said that a neg- ative outcome on the test would have been a mitigating factor. The witness did not say that such a negative re- sult would have been dispositive (T. III, 106-108). On cross, it developed that Mr. Farrell on June 2nd had told Ms. Kraus that Mr. Cash would take the test (T. III, 118).( See Ex. J-2A.) On recall, Mr. Walker testified that during PRC meet- ing of June 5, 1989, he spoke by speaker phone to Mr. Cash and Mr. Farrell who were at the union offices in New Jersey. Mr. Cash said that before he joined the vessel the suit- case in which the hand rolled cigarette ends were found was purchased by his wife at a used store (T. III, 256). Nothing was said in this call about any alleged drug test that Mr. Cash took after leaving the vessel (T. III, 257). Union Testimony Alan Cash testified to his career at the company which culminated in his sailing as a chief pumpman. His eval- uations showed only one adverse notation (in 1977) on his work (Ex. U-1). Grievant testified that he never had any contact with or possession of drugs (T. III, 126). At the beginning of May 1989, Mr. Cash was as- signed to the Exxon Washington. There was another chief pumpman aboard (T. III, 127). Mr. Cash testified that he took the suitcase in which the marijuana cigarette ends were found from the oilskin locker on the Exxon Benicia in 1988 or at the end of 1987. It was somebody else’s suitcase which grievant took because he needed additional carrying space. He continued to use it after taking it and never noticed “any- thing out of the ordinary inside of it” (T. III, 128-129). 49a When grievant boarded the Exxon Washington, the other chief pumpman was still there and did not leave until 2 days befcre the search. Prior to Mr. Cash’s mov- ing into that room, he was in another which he said was really a storage room and was the old second pumpman’s room (T. III, 119-130). The chief pumpman’s quarters were preferable; so grievant moved into them when the prior occupant, Joe Victorio, left (T. III, 130-131). Nothing was found in the space he previously had oc- cupied so far as Mr. Cash knew (T. III, 131). Utility men clean the rooms. But the one at issue had not yet been cleaned. The ship was in port, and Mr. Cash did not wait for the cleaning to be done. Instead, he moved in at once (T. III, 133). Grievant left the door unlocked as he always did (T. III, 135). On May 17, 1989, after the vessel anchored, the crew was gathered and told of the search, grievant testified. The search was done with dogs. Mr. Cash had partici- pated in such searches before (T. III, 136). When grievant’s room was searched, Mr. Newman, his associates, the dogs, Mr. Shearer and Mr. Kissinger were present as well as Mr. Cash (T. ITI, 138). Grievant was shown 2 seeds which were found under the carpet (T. III, 139). Nothing else was shown to Mr. Cash until the searchers reached the closet area (T. III, 141). Grievant agreed that the suitcases in the closet could be searched. In a pouch, “Two little balled-up pieces of paper were found” (T. III, 141). They were described to grievant as marijuana cigarette ends—‘“roach ends” (T. III, 142). The cigarette ends and 2 seeds were all that was shown to Mr. Cash before the captain confined him to his quarters as the party went midship to run tests (T. ITI, 144). Thereafter, grievant was called to the captain’s office to be told the test results. The captain was present as were Managers McDonald and Shearer, Mr. Kissinger and Mr, Newman (T. III, 145). 50a Mr. McDonald stated that the tests were positive for marijuana. Grievant was told that he was required to take a drug test. If he took it, he would be terminated from the vessel and later told his employment status. If he did not, he would be terminated from the ship and probably the company. (The transcript, ITI, 146 was supplemented by the chairman's notes to articulate the answer. ) Grievant told the managers he wanted to talk to some member of the union's board of governors. He was not allowed to use the telephone (T. III, 147). [The chair- man notes that Mr. Kissinger, who could have testified on this and about other points where grievant's state- ments differed from those of company witnesses, was not called. ] Mr. Cash rejected the test. Grievant knew the union had not agreed to accept such testing (T. III, 148-149). He so informed the captain (T. III, 154). Mr. Cash was terminated from the vessel, went ashore, and reached his home on May 18, 1989 (T. III, 137). He contacted Mr. Farrell of the board of governors 2 or 3 days later (T. If, 158). Mr. Farrell told Mr. Cash to take the drug test (T. IIT, 160). About a week and one-half after his discharge from the vessel, Mr. Cash testified, he went to Smith, Klin & French Laboratories and took a drug test. Cindy William- son, a technician, orally informed grievant, who did not ask for a writing at the time, that the test result was negative (T. III, 161). Grievant later attempted to ob- tain a writing but never was able to do so (T. III, 166). [The chairman reiterates his remark made at the hearing that Mr. Cash’s testimony on this point constituted hear- say.] Grievant testified that before, during and after May 1989, he never ingested drugs (T. III, 166). He is pre- pared to take a drug test at any time (T. III, 169). Sla Grievant swears that what was found aboard the ship was not his (T. III, 170). [Facts were elicited about Mr. Cash’s post discharge attempts to earn monies. As will become apparent below, this evidence is not relevant to the chairman's decision of the dispute and will not be reviewed.] On cross, it was developed that Mr. Cash served on the Exxon Benicia, the vessel from which he allegedly took the suitcase, in 1986 (T. III, 171). At the time of the search, Mr. Cash testified on cross, he made no statement that he obtained the suitcase on the Exxxon Benicia (T. III, 181). He said nothing about the suitcase in the captain’s quarters, either (T. III, 187). Mr. Cash testified that he never conferred with Taylor Kissinger in the captain’s quarters. Mr. Kissinger was present, however (T. ITI, 183). Mr. Kissinger was given permission to use the telephone and attempted to call the board of governors. The ship’s representative could not reach anybody (T. III, 184). Mr. Kissinger never gave Mr. Cash advice as to what to do, grievant stated when the chairman inquired (T. III, 186). The company did not give Mr. Cash several opportuni- ties to change his mind about taking the test, he testified (T. IIT, 188). The test results from Smith, Kline & French came in about 3 days after Mr. Cash took the test, he said. Griev- ant did not report the negative result to the company, but he may have told Mr. Farrell (T. III, 200). Despite the fact that Mr. Cash may have said on June 5, 1989 that his wife bought the suitcase before he joined the Washington, actually grievant obtained the suitcase on the Benicia, he insisted on cross (T. ITI, 207). Griev- ant remembered telling the PRC that his wife bought the bag, but he was wrong, he stated (T. III, 211). 52a On redirect, Mr. Cash again said that the suitcase was a used bag and that the cigarette ends were not his (T. III, 224). He also stated that in the 2 days he was in the room, he worked 36 hours, i.e., 18 hours each day (T. Ill, 237). Position of the Company The company submits that its April 1, 1988 policy statement permitted tests when “cause exists to suspect alcohol or drug misuse.” This policy and Coast Guard regulations on the subject were emphasized in the Sep- tember 27, 1988 letter in which, as permitted by the Brent award, official notice of the policy issued. “Term- ination of employment” was set forth as the penalty for violation. The pertinent November 21, 1988 Coast Guard regula- tions requiring chemical testing are cited. The April 28, 1989 Coast Guard reasonable cause requirement is noted: “evidence of use is sufficient to require testing.” Drugs or drug paraphernalia in clothing or staterooms were de- fined as “physical indicators.” The search of the Exxon Washington then is reviewed. Mr. Newman’s testimony about finding the drugs in griev- ant’s room is noted. The company submits that pursuant to its policy Mr. Cash was directed to be tested and re- fused to accede. On the basis of its own policy of April 1, 1988 and on the basis of the Coast Guard regulations, there was ground to require testing. The company policy allows tests where “cause to suspect . . . drug misuse” exists. The Coast Guard regulations permit testing where a sea- man “is reasonably suspected” of drug use. Arbitrator Parker upheld the right of the company to conduct unannounced searches of vessels. An experienced and trained expert, Mr. Newman, conducted the search, found suspected material in Mr. Cash’s room, and estab- 53a lished by field chemical tests and microscopic analysis that the material was marijuana, the company maintains. This led to the demand for a test. Despite the argument of the union against requiring such tests, the Newman discoveries and field tests pro- vided a reasonable suspicion of drug misuse under the company policy, it is asserted. The policy uses the words “cause .. . to suspect” rather than “probable cause” or “reasonable cause” it is noted. Arbitral authority is cited to show that presence of “rational grounds for testing . .., not whim or caprice” is sufficient to permit testing. Such grounds would exist even in the absence of impair- ment, it has been found, so long as the employer was not “arbitrary, capricious, malicious, or discriminatory.” Here the company had cause to suspect Mr. Cash, it is contended. Finding marijuana not only in the room but also in the grievant’s suitcase established a reasonable suspicion of drug use. Finding the marijuana in the personal belongings of grievant constituted a physical indication of use under the Coast Guard regulations, it is further submitted. The presence of the “roaches” in the suitcase is stressed. The employer is obligated to comply with Coast Guard regula- tions, it is asserted. Since Mr. Cash refused to take the drug test, he vio- lated the company policy and was subject to discharge under it, employer submits. And under the Coast Guard regulations [which do not set forth discharge as a penalty], grievant was obligated to accept a test when reasonably suspected of using marijuana. The company on Septem- ber 27, 1988 stated that violation of Coast Guard regula- tions would result in termination {but that termination would arise under cOmpany policy and not Coast Guard regulation.] The Coast Guard regulations established a basis for testing even if, as grievant believed, such testing had not been bargained with the union. 54a In any case, no union testimony was received showing that Mr. Cash was told to refuse the test or that testing ‘iad not been bargained. Mr. Cash ignored the rule “obey now, grieve later.” Arbitral authority is cited to show that discharges arising from refusals to take drug tests have been sustained. Mr. Cash’s testimony did not explain or justify his re- fusal to take the test, the company contends. Grievant never previous to the arbitration said he ob- tained the suitcase on the Exxon Benicia. If he did ob- tain it there, that would have occurred in 1986. But he had told the PRC his wife purchased the suitcase just prior to his boarding the Exxon Washington. Allegedly, “neither story is credible and neither should be believed.” In any case, finding the drugs in the suitcase was cause for testing, it is asserted. “The order to test was justified regardless of where the roaches in the suitcase came from.” And other drugs were found in his room. It is unlikely, the company charges, that someone else left drugs in the room and also that someone else left drugs in the suitcase. Allegedly, by agreeing to be tested in June, Mr. Cash and the union acknowledged that the company had cause to test him. [The chairman notes that the acknowledge- ment could have been that the company had the unilateral power to require a test whether or not there was cause.] Grievant had received the company policy letter and was presumed to know the Coast Guard regulations. The company challenges the drug test “story” offered by grievant. [The chairman agrees that this account was hearsay unsupported by any documents or witnesses. In coming to a decision, the chairman will not credit griev- ant’s allegations. Hence he will not further review the company contentions concerning it.] 55a The offer to take a test on June 2nd and June Sth did not mention the Smith, Kline & French test, it is noted. The later offers were “unreasonable”. Where Mr. Cash’s testimony contradicted that of Messrs. Shearer and Newman, grievant should not be be- lieved, the company submits. He was not credible con- cerning the suitcases, and the other witnesses corroborated each other at a number cf points. Furthermore, Mr. Kissinger was not called. The company notes that arbitral authority holds the chairman may not substitute his judgment as to penalty if he finds the charges are proved. The prior opinion of Arbitrator Marx is cited. Since Mr. Cash violated the Coast Guard regulations, public policy dictates that he should not be reinstated, the company submits. Discharge is the only penalty appropriate for the viola- tion of both company policy and Coast Guard policy by refusing to take the drug test, the company submits. Ar- bitrator Marx ruled in reviewing the company’s posted rules that an arbitrator cannot alter a previously an- nounced and applicable penalty. The company asks the chairman to deny the grievance. Position of the Union The union submits that in charging Mr. Cash, the com- pany ignored its own January 18, 1989 evaluation of “exceptional” in a number of areas including “personal hygiene habits” and “principles of general shipboard san- itation.” The discharge, it is noted was based on 2 considera- tions: drug substances found in grievant’s quarters and personal belongings; and his refusal to take the drug test. Yet when the company continued those sections of the predecessor contract which had not arisen in bargaining, the section on termination for “cause” was retained. Past 56a practice and arbitration awards have held that this means “just cause,” it is asserted. Thus, the union argues, dis- cipline must be “fair and just,” and rules must be “reason- able in . . . scope and applications.” The union notes the distinction in the drug policy lan- guage. This makes use or possession of drugs on com- pany property “grounds for termination.” But it states that refusal to submit to a drug test is “grounds for disciplinary action. . .” At various places the policy re- fers to “disciplinary action which may include termina- tion.” The just and fair cause language retained in the contract allegedly requires that discipline arising under the drug policy must be considered with reference to the just cause standard, it is asserted. One of the basic positions of the Union in this case is that using the standards evolving out of the con- tract language and, indeed, the policy statement, a refusal to consider progressive discipline or to take action other than discharge is an unfair and unjust application of discipline. The Union notes that Mr. Cash was in the room for 1% days at the time of the search. The chief pumpman had left on emergency leave. And, as in the case de- cided by Arbitrator Parker, the rooms were open for access by many persons. At a later point, the union emphasizes that the search was precip[it]ated by Seaman Byrd’s finding someone else’s possible marijuana cigarette in his newly assigned room. The union repeats Mr. Cash’s contention that he took the suitcase from the changing room on the Exxon Benicia. The propriety of a search of personal effects without a search warrant is questioned. {Mr. Cash testified that he agreed to the search of the suitcase, and he did not testify that he was under “duress.” The Parker award found that such searches could be conducted, and arbitra- tors have ruled similarly under other contracts. ] 57a It is argued: there was no proof of the age of the material in grievant’s room. In whatever way Mr. Cash got the suitcase, it was “used” by someone else before him. The objects were tiny and would probably have escaped grievant's notice, it is contended. The items were of such minute quantity as not to justify use of the word “possession” of drugs, the union asserts. Nothing, it is noted, was found in the room grievant previously had used for a much longer time. It was in- consistent that no marijuana was found there if Mr. Cash was using the drug. Allegedly it is impossible to conclude that Cash justifiably, should be saddled with [the room’s] contents partic- ularly in view of the . . . . limited amount of ma- terial found. Mr. Cash had not yet cleaned the room; the door was left unlocked; and grievant worked 36 hours in the 112 days he had the room. {The chairman shall not review the challenges concern- ing the search, handling, tests and transfer of the material found. As earlier stated, the chairman is satisfied that drug materials were found. The chairman will emphasize that despite the testimony, the contemporaneous data sheet shows that the marijuana seeds were found under the carpet. | With regard to the failure to take the drug test, the union offers a number of contentions. It notes that the requirement to take the test was the subject of a bitter company-union dispute. Mr. Cash knew the union’s position and had been told to refuse testing. He informed the captain the test had not been bargained. Board of Governors Member Farrell insisted that grievant refuse the test. Mr. Farrell later apologized for doing so. Allegedly, it was unfair to discharge a person caught in the midst of this union-company dispute. 58a Mr. Farrell, when reached by grievant, promised to contact the company to say Mr. Cash would take the test. By the date of the June Sth PRC meeting, Mr. Farrell had done so. The company refused the offer de- spite knowing that marijuana remains in the body at least 15 days according to the company’s own expert at the Foster hearing. It is noted that the company’s position as stated by Mr. Walker was that Mr. Cash was required to take the test and that no later offer to do so would be exculpatory. Allegedly, this company position in light of the dispute with the union over testing was funda- mentally unfair. When the chairman asked, the company never said that a negative test would change the outcome, the union notes. Among other arguments the union submits that Neither the Company's policy nor the Coast Guard require discharge for refusing to take a test even where cause exists. Since the company policy identifies refusal of a test as “grounds for disciplinary action including dismissal”, Ar- bitrator Scheinman, in Foster, found that even a positive result does not require discharge, and he set one aside. The PRC, it is charged, refused Mr. Cash’s offer to take a test which the committee could have considered. Nor was weight given to grievant’s “previous excellent and consistently highly rated work history of some 13 years.” The union further charges that Mr. Cash’s fundamental rights were denied when he requested and was denied the right to call a member of the board of governors. Griev- ant’s testimony remains unrebutted since Mr. Shearer could not recall if grievant made the request or whether, if the request was made, it was refused. The union asks reinstatement of Mr. Cash with full back pay and benefits. re f 59a Discussion The chairman credits the testimony of Mr. Newman that marijuana or marijuana residue was found in the cabin used by Mr. Cash as of May 17, 1989. It is highly significant that no traces of the drug were found in the quarters used by grievant between May 10 and May 15, 1989. The union contends that only a very small amount of drug was found, in any case. Apparently this is true. But what was found was discovered in a number of places: green leafy material in desk and cabinet; ash on the rug near the bed; seeds under the rug; cigarette ends in a suitcase pouch. The company does not rebut the fact that Mr. Cash was in the room for only 1% days, and for only a few hours daily then. It is not disputed that a chief pump- man and another pumpman used the cabin before griev- ant moved in. As in the case before Arbitrator Parker, other persons had full access to the room because the door was unlocked. Grievant’s unrebutted testimony is that because he did not want to interfere with their shore leave, he did not ask the utility men to clean his cabin. In sum, the cabin had not been cleaned at the time of the search, had been used by a number of persons in previous days, and was open to others. Except for what was found in the suitcase, it 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, accord- ing to the 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. It is instructive to compare the searched cabin’s con- dition in which widely scattered material was found to the condition of the former cabin where no material was found at all. 60a 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. If there was no reasonable cause to conclude that griev- ant brought the drug into the cabin—and the above analysis finds that there was not—then the Coast Guard regulations would not call for a drug test, and no viola- tion of the regulations could be said to exist. The ques- tion of whether there was cause under the company policy will be considered below. The matter of the suitcase is the weakest point of Mr. Cash’s defense against the charge that he violated com- pany policy by introducing marijuana into his cabin. (Even in light of this, the higher Coast Guard standard of “reasonable cause” could not be met because of a) previous occupancy of the room, b) lack of drugs in gtievant’s previous room, and c) the other considerations discussed above. The lower company standard conceiv- ably might have been met by the suitcase materials. ) Mr. Cash was either incorrect when he told the PRC 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 assertion that when he got the piece it was used, that weakness of testimony may make no difference. The un- discovered 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. 6la 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. The chairman has found that there is considerable doubt Mr. Cash brought the other drug traces into the cabin. The most that can be said about the butts in the bag is that they would be strongly sus- picious in the absence of the contrary circumstantial evi- dence about the other materials found. As many arbitrators have ruled, including Dr. Parker in Pollard and Olsen, circumstantial evidence must lead to one and only one logical conclusion. That cannot be said here. Mr. Cash could not be discharged for posses- sion of marijuana after this evidence is viewed under a just cause standard. 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 griev- ant’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 material was discovered in griev- ant’s cabin, sufficient question was raised about owner- ship of the drugs so that “cause” “reasonable cause”, “probable cause” or “just cause” did not exist to order a test. And Mr. Shearer’s testimony established that Mr. Cash’s appearance and actions provided no basis for or- dering a test. The chairman concludes that if Mr. Cash had taken the demanded drug test and then had grieved, a later arbitra- tion would have found that lack of “cause” “reasonable cause” “probable cause” or “just cause” to have ordered a 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 62a 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 refus- ing the drug test, grievant violated the fundamental rule that except when an order imperils health or safety, em- ployees must first obey an order and then grieve. It is of no import that the union challenged the company’s right to test and that Mr. Cash knew it. If the union was right, an arbitrator would have invalidated the test on the basis that the company could not impose it uni- laterally. But until an arbitrator issued such a ruling, the company, and not the union, had the power to decide what would be done. While the company, if it chose, could decide that a later offer to take a test would wipe out, or at least miti- gate, the original refusal, an arbitrator has no power to substitute his judgment for this reason. Discharge was possible under the rules. As Arbitrator Marx stated, an arbitrator cannot alter the rules. Mr. Cash’s alleged later drug testing cannot be con- sidered by the chairman to be mitigating. There is no documentary proof that a test was taken and no docu- mentary proof of the results, even if the results might, arguendo, excuse Mr. Cash’s original refusal. The chairman faces a dilemma. To sustain the dis- charge of Mr. Cash for refusal to take a test which might not have helped him even if the results were negative and for which no element of cause ex post was found to exist, appears to be at variance with a just cause standard—or any other standard of cause. Unlike cases submitted by the parties, Mr. Cash was not found to be under the in- fluence of alcohol or drugs, nor is that charged against him. On the other hand, grievant was insubordinate. Any positive remedy might be considered a victory or reward for improper behavior. Biante ign | 63a The chairman has concluded that since the order to take the drug test arose out of an incorrect evaluation of the meaning of the marijuana found in Mr. Cash’s cabin, discharge for failure to accept the test is not possible. However, though the penalty may be considered harsh, reinstatement must be without back pay but with full seniority. AWARD In light of the foregoing discussion, I, the undersigned neutral chairman, being duly sworn and those members of the panel of arbitrators who sign as concurring, having received the testimony, evidence and argument of the parties in a preceeding at which both were represented ably by counsel, issue the following AWARD The discharge of Alan B. Cash was not for just cause. Mr. Cash shall forthwith be reinstated with full seniority but without back pay. /s/ Maurice C. Benewitz MAURICE C. BENEWITZ Neutral Chairman Dated: November 27, 1992 [Notary Omitted in Printing] I (concur with) the above award /s' Howard A. Goldberger HOWARD A. GOLDBERGER, Esa. Union Appointed Arbitrator Dated: November 30, 1992 [Notary Omitted in Printing] 64a I (dissent from) the above award s/ William P. Hoeler WILLIAM P. HOELER Company Appointed Arbitrator Dated: 12/9/92 [Notary Omitted in Printing] 65a APPENDIX D EXXON SHIPPING COMPANY Policy Statement on Employee Alcohol and Drug Use Exxon Shipping Company is committed to a safe, healthy, and productive work place for all employees. The Com- pany recognizes that alcohol, drug, or other substance abuse by a few employees will impair their ability to per- form properly and can have serious adverse effects on the safety, efficiency, and productivity of other employees and the Company as a whole. The misuse of legitimate drugs or the use, possession, distribution, or sale of illicit or unprescribed controlled drugs on Company business or premises is strictly prohibited and is grounds for termi- nation. Possession, use, distribution, or sale of alcoholic beverages on Company premises is not allowed without prior approval of appropriate senior management. Being unfit for work because of use of drugs, or alcohol is strictly prohibited and is grounds for termination of em- ployment. While this policy refers specifically to alcohol and drugs, it is intended to apply to all forms of substance abuse. The Company recognizes alcohol or drug dependency as a treatable condition. Employees who suspect they have an alcohol or drug dependency are encouraged to seek advice and to follow appropriate treatment before it results in job performance problems. Employee Health Advisory Program or medical professional staff will ad- vise and assist in securing treatment. Those employees who follow approved treatment will receive disability benefits in accordance with the provisions of established benefit plans and medical insurance coverage consistent with existing plans. No employee with alcohol or drug dependency will be ter- minated or otherwise disciplined solely due to a request for help in overcoming that dependency or because of in- 66a volvement in a rehabilitation effort. If, however, an em- ployee violates provisions of the Employee Alcohol and Drug Use Policy, appropriate disciplinary action will be taken. Such action cannot be avoided by a request at that time for treatment or rehabilitation. If an employee suf- fering from alcohol or drug dependency refuses rehabili- tation or fails to respond to treatment or fails to meet satisfactory standards of effective work performance, ap- propriate disciplinary action, up to and including termina- tion, will be taken. This policy does not require and should not result in any special regulations, privileges, or exemptions from normal job performance requirements. Exon Shipping Company may from time to time conduct unannounced searches for drugs and alcohol on owned or controlled property. The Company also has the 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. Contractor, common carrier, and vendor personnel are also covered by paragraph one and the search provisions of paragraph four of this policy. Those who violate the policy will be removed from Company premises and may be denied future entry. April 1, 1988 Implemented for Unlicensed Oceangoing Employees. 67a APPENDIX E EXXON SHIPPING COMPANY Post Office Box 1512 Houston, Texas 77251-1512 “EXXSHIP HOUSTON” D. J. Paul Human Resources Manager September 27, 1988 TO ALL OCEANGOING EMPLOYEES OF EXXON SHIPPING COMPANY Recent developments by Exxon Shipping Company, the United States Coast Guard, the United States Customs Service, and Labor Arbitrators have focused a renewed emphasis on our commitment to providing a safe, healthy and productive work place by ensuring that drug, alcohol or other substance abuse is eliminated. The purpose of this communication is to ensure that all employees are aware of the various rules, regulations and company pol- icies regarding substance abuse in the work place and to give notice that enforcement will be more stringent in the future. Exxon Shipping Company Employee Alcohol and Drug Use Policy On March 11, 1987, the Exxon Shipping Company Policy on Alcohol and Drug use became effective for all non- represented employees and was mailed to all employees. The Exxon Radio Officers Association accepted the policy during our 1987 contract negotiations. On April 1, 1988, we implemented the Alcohol and Drug Use Policy for all unlicensed Oceangoing employees. A copy of this policy was again mailed to all. unlicensed employees as a part of the total implementation package at the conclusion of bargaining with the Exxon Seamen's Union. The Company Policy specifically prohibits the misuse of legitimate drugs or the use, possession, distribution, or sale 68a of illicit or unprescribed controlled drugs on Company business or premises. Possession, use, distribution, or sale of alcoholic beverages on Company premises is prohibited. Being unfit for work because of use of drugs, or alcohol is strictly prohibited and is grounds for termination of em- ployment. Exxon Shipping Company may from time-to- time conduct unannounced searches for drugs and alcohol on owned or controlled property. The Company also has the right to require employees to submit to medical eval- uation 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 guidelines for Super- visors, which were bargained with the Exxon Seamen’s Union, are essential to the administration of this policy and should be familiar to every employee. 1. At the discretion of the President or Fleet Man- ager, the Company may conduct unannounced alcohol and drug searches on owned or controlled property where there is reasonable cause to sus- pect that these substances may be present. Rea- sonable cause may include searches in operations where use of these substances could create an un- safe situation. 2. The decision to require an employee to submit to testing for drugs and alcohol requires the ad- vance endorsement of the Human Resources Manager. Prior to any testing, the employee must sign an Informed Consent form. In cases where a medical evaluation is deemed appropriate, med- ical personnel should be asked to collect a urine and/or blood sample for testing to determine the presence of alcohol and/or drugs. Blood tests will not be taken on board ship by vessel per- sonnel. If circumstances prevent medical evalu- ation from being conducted soon after the “for cause” incident, Management may collect and properly process [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1721%3A2. Public record. Not legal advice.