Petition for Writ of Certiorari — Gulf Coast Industrial Workers Union v. Exxon Co., USA

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93-441

IN THE SUPREME COURT OF 73 |

THE UNITED STATES “A TT

October Term, 1993 , AUG 23°1883"

GULF COAST INDUSTRIAL WORKE

Petitioner,

EXXON COMPANY, USA,

Respondent.

Petition for Writ of Certiorari

to the United States Court of Appeals for the

Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Sharon D. Groth

Counsel of Record

311 S. Loop 201

Baytown, TX 77520

QUESTIONS PRESENTED FOR REVIEW

1. Whether the United States Court of Appeals for

the Fifth Circuit has Properly articulated a public

Policy exception to the finality of arbitration

awards in conformity with this Court’s Opinion in

United Paperworkers International Union v.

Misco, Inc., 484 U.S. 29, 108 sc’ 364, 98

L.Ed.2d 286 (1987)?

2. Whether a public policy favoring the eradication

of drugs from the workplace requires that the

arbitration award rendered to the Petitioner and

the Respondent be vacated?

x 9 Whether this Court should address the division

among the United States Courts of Appeal

regarding the application of the Public policy

exception to the finality of arbitration awards?

4. Whether the arbitrator exceeded his jurisdiction

by considering post-termination conduct in his

award?

TABLE OF CONTENTS

PAGE

Questions Presented for

Review i

Table of Contents i

Table of Authorities iii

Title Page 1

Report of Official Reports -of Opinions 1

Statement of Jurisdiction 2

Contract Provisions 3

Statement of Case 3

Reasons for Granting the Writ 6

Argument 10

. fe The United States

Court of Appeals for the

Fifth Circuit has not

Conclusion

Appendix

properly articulated a

public policy exception to

the finality of arbitra-

tion awards consistent with

the rulings of this Court. 10

A public policy favoring

eradication of drugs from the

workplace does not require

that the arbitration award

rendered to the Petitioner

and the Respondent be

vacated. 17

This Court should address

the division among the United

States Courts of Appeal regarding

the application of the public

policy exception to the finality

of arbitration awards. 28

The arbitrator did not exceed

his jurisdiction by considering

post-termination conduct in

his award. 42

TABLE OF AUTHORITIES

CASES

PAGE

Amalgamated Meat Cutters v.

Great Western Food Co,,

712 F.2d 122 (Sth Cir. 1983) 20

AT&T Technologies v,

Communications Workers of America,

475 U.S. 643, 106 S.Ct. 1415 (1986) 25

Delta Airlines vy. Air Line

Pilots Ass'n Intern.

861 F.2d 665 (11th Cir. 1988) 32

Interstate Brands vy.

Chauffeurs. Teamsters

Local 135, 909 F.2d 885

(6th Cir. 1990) 20, 37, 38, 39, 40

John Wiley & Sons, Inc. v.

Livingston, 376 U.S. 543 (1964) 45

>i Chemical Worl

| 1-228 y. Union Oil

Co, of Cal,, 818 F.2d 437

(Sth Cir. 1987) . 35, 36, 37, 43

Northwest Airlines.

Inc, v. Air Line

Pilots Ass'n Intern.,

808 F.2d 76 (D.C. Cir. 1987) 28, 29, 30

Stead Motors v.

Automotive Machinists

Lodge 1173,

886 F.2d 1200 (9th Cir. 1989) 31, 32, 33, 34, 35, 49

United Paperworkers

n ions

Union Vv Misco

Inc., 484 U.S. 29,

108 S.Ct. 362,

98 L.Ed.2d 286 (1987) i, 7, 15, 16, 27, 31, 32, 33,

34, 41, 44, 45, 47, 50

United Steelworkers of

merica v. American

Manufacturing Co., 363 U.S. 564,

80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960) 22, 23, 25

United Steelworkers

of America v. Enterprise

Wheel and Car Corp., 363 U.S. 593,

80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) 22,24, 25

United Steelworkers of

America v. Warrior & Gulf

Navigation Co., 363 U.S. 574,

80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) 22, 23, 25

W. R. Grace & Co,

vy. Local Union No. 759.

461 U.S. 757, 103 S.Ct. 2177,

76 L.Ed. 2d 298 (1983) 32, 38

STATUTES

28 U.S.C. 185 4

28 U.S.C. 1254(1) 2

28 U.S.C. 1291 4

41 U.S.C. 701, et seg.,

Drug-Free Workplace Act 12, 13, 14

REGULATIONS

49 C.F.R. 199, ef seq.,

Department of Transportation

Regulations 12, 13, 15, 30

TREATISES

Owen Fairweather, Practice and

Procedure in Labor Arbitration, (3rd ed. 1991) 46

ARBITRATION AWARDS

Hooker Chem. Corp., AAA Case No. 81-2

(Arb. Horvitz 1965) 46, 47

vil

NO.

IN THE SUPREME COURT OF

THE UNITED STATES

October Term, 1993

GULF COAST INDUSTRIAL WORKERS UNION,

Petitioner,

EXXON COMPANY, USA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Opinion Below

The opinion of the United States Court of

Appeals, Fifth Circuit will be reported in 991 F.2d 244

(1993)(Copy of court's opinion - App. A, infra, pp. A-1 to

A-72).

Jurisdiction

The opinion of the United States Court of Appeals

for the Fifth Circuit was entered on May 24, 1993. The

jurisdiction of this Court is invoked under 28 U.S.C.

ei7 oe -

1254 1}

Contractual Provisions Involved

The pertinent provisions of the contract involved

are set forth in Appendix B, /nfra, pp. B-1 to B-29).

Statement

1. Background

This matter comes before the Court as the result

Of an arbitration award issued to the Gulf Coast

Industrial Workers Union (“GCIWU"), and Exxon

Company, U.S.A. ("Exxon") by Arbitrator |. B. Helburn

on August 23, 1991 (Appendix C. infra, pp. C-1 to C-33).

The subject of the arbitration was the termination of an

employee for alleged violation of Exxon's drug and

alcohol policy; the employee, who was inthe company’s

after-care program, tested positive for cocaine in a

random drug screen. The arbitrator ordered

reinstatement of the employee without Dackpay.

Foliowing receipt of the award. Exxon notified

GCIWU that it did not intend to abide by the award. The

GCIWU filed a suit to enforce in the United States

District Court for the Southern District of Texas, Houston

Division pursuant to 28 U.S.C. 185. Exxon filed a

counter-claim seeking to vacate the award, charging

that the arbitrator had exceeded his jurisdiction and that

the award violated public policy.

The district court issued an order granting

Exxon’s counterclaim, vacating the award on December

11, 1991 (Appendix D, p. D-1 to D-2). The GCIWU

perfected an appeal to the United States Court of

Appeal, Fifth Circuit pursuant to 28 U.S.C. 1291. The

appellate court issued an opinion on May 24, 1993,

affirming the ruling of the district court (Appendix A).

Zz Statement of Facts

The GCIWU and Exxon are signatories to a

collective bargaining agreement which Provides for final

and binding arbitration of disputes between the Suites

(Appendix B, pp. 24-28). The agreement also provides

that Exxon may discipline or discharge its union-

represented employees for just cause (Appendix B, pp.

20-21).

On June 15, 1990, Exxon terminated Thomas

Woods, an employee represented by the GCIWU, for a

violation of the drug and alcohol policy. Mr. Woods was

in the company's after-care program and tested positive

for cocaine in a random drug screen. The GCIWU

grieved the discharge and the parties processed the

dispute through the grievance and arbitration procedure

contained in the contract.

At the arbitration hearing, Exxon and the GCIWU

Stipulated that the dispute was properly before the

arbitrator. Arbitrator Helburn ruled that there was not

just cause for discharge but that some level of discipline

was appropriate. He ordered the grievant to be

reinstated with no backpay. Exxon refused to abide by

the award, thus prompting the enforcement action by

the GCIWU.

Reasons for Granting the Writ

In this matter, the district court and the appeals

court held that the arbitration award violated public

policy because it ordered reinstatement of the grievant.

The court also held that the arbitrator had improperly

relied upon post-termination conduct. These holdings

are inconsistent with this Court’s opinion in United

Paperworkers International Union. AFL-CIO y. Misco.

Inc., 484 U.S. 29, 108 S.Ct 364, 98 L.Ed.2d 286 (1987).

Moreover, there is a division among the federal

appellate courts as to the Proper application of

considerations of Public policy in enforcement

proceedings for arbitration awards.

The lower courts also erred in ruling that the

arbitrator exceeded his jurisdiction when he considered

post-termination conduct. The arbitrator did nothing

more than exercise his legitimate authority to fashion an

appropriate remedy after finding that just cause did not

exist for discharge.

The rulings by the lower courts in this matter

destroy the integrity of the contract between the parties

because they abrogate the negotiated agreement that

the findings of an arbitrator concerning a dispute

properly before him will be final and binding. Further,

the rule announced in this case disrupts the peaceful,

non-litigious resolution of disputes between unions and

employers. If allowed to stand, the decision by the

appellate court will render arbitration clauses a nullity in

any case which involves drugs or alcohol, a result which

is not consistent with the established labor law or the

collective bargaining agreement between these parties.

Review by this Court is necessary to restore the

integrity of the contract negotiated between Exxon and

the GCIWU and to afford recognition to the public policy

of private resolution of labor disputes through the use of

final and binding arbitration. The parties bargained for

a system of resolving disputes which Culminates in final

and binding arbitration. Each party made an important

concession to obtain that language - the union does not

have the right to strike during the term of the agreement,

and the employer may not lock out the union.

Arbitration can only be an effective tool when it is final

and binding and not Subject to the kind of collatera]

attack which has occurred in the instant case.

Moreover, review by this Court is required to achieve a

uniform application of federal law in the intermediate

federal court system regarding what has become an

extremely volatile and increasingly prevalent issue

surrounding the impact of a public policy exception to

the finality of arbitration awards.

ARGUMENT

I. The United States Court of Appeals for the

Fifth Circuit has not properly articulated a

public policy exception to the finality of

arbitration awards consistent with the rulings

of this Court.

The Fifth Circuit has chosen to abrogate the

arbitration provisions of the contract between the parties

on the ground that the award made by the arbitrator

violates a “well defined and dominant" public policy

(Appendix A, p. 56). In effect, the court has eviscerated

the long-standing public policy of judicial deference to

arbitration awards by asserting a competing public

policy regarding the eradication of substance abuse

from the workplace.

In essence, the Fifth Circuit has articulated a

Public policy which Says that an employee who has in

the past violated an employer's rule prohibiting the use

of illegal substances may never be returned to work with

the employer by an arbitrator. The court cites a litany of

Statutes, regulations, and judicial decisions to

Substantiate its ruling. However, such a policy is not

supported by the laws or cases cited by the court.

Exxon has instituted a drug and alcohol testing

Policy which recognizes a range of disciplinary actions

when an employee is engaged in a rehabilitation effort

and has a single relapse, such as the grievant herein.

(The lower court refers more than once to the employee

having breached the drug abuse policy on two

occasions; there was, in fact, only a single incident, a

relapse which occurred in June of 1991.) As they are

written, the rules implemented by Exxon regarding drug

or alcohol abuse, are consistent with the public policy

articulated by statutes such as the Drug-Free Workplace

Act, 41 U.S.C. Section 701, e¢seg., and the Department

of Transportation regulations regarding pipeline workers,

49 C.F.R. Section 199, ef seg., which mandate the

establishment of an employee education program about

drugs and the implementation of assistance programs

for those employees who suffer from addiction (see

Particularly 44 U.S.C. Section 703(1), “grantee or

contractor shall . - - fequire such employee to

Satisfactorily Participate in a drug assistance or

rehabilitation Program . . .": and 49 C.F.R. Section

199.1, "This Part requires Operators of pipeline facilities

-10... provide an employee assistance Program. . .

The lower court has not cited any statute or

regulation which buttresses its holding that

reinstatement under the circumstances of this case

violates public Policy. The Drug-Free Workplace Act,

Supra, does not require a finding that an employee who

has tested Positive for an illegalt-substance in the past

May never work in an industry covered by the Act, nor

does it require termination for an employee who has

tested positive. Rather, it requires an employer who is

a government contractor to institute a drug awareness

program including participation in substance abuse

assistance and rehabilitation, and to establish a

progressive discipline system, up to and including

termination, for those employees who test positive for

illegal drug use, 41 U.S.C. Section 703(1).

The Department of Transportation has

promulgated regulations providing for the drug and

alcohol testing of certain persons who work on

petrochemical pipelines. Those regulations do not

mandate that reinstatement is unavailable as a remedy

in the case herein. The regulations provide only that

"An employee who refuses to take or does not pass a

drug test may not return to duty until the employee

Passes a drug test administered under this part and the

medical review officer has determined thatthe empioyee

may return to duty." 49 C.F.R. Section 199.11(e). None

of the other statutes cited by the court forbid the

reinstatement of an employee who has suffers a single

relapse and tests positive for an illegal substance,

The court of appeals cites as Support for its

holding this Court's ruling in Misco, supra. However,

GCIWU submits that the mere recitation of a number of

Statutes which advocate the eradication of substance

abuse from the workplace does not conclusively

establish that, in this case a Public policy has been

violated by the award of the arbitrator. In Misco, this

Court made it clear that an examination must be made

as to whether an arbitrator's award creates any explicit

conflict with other laws and legal precedents, /a., at 108

S.Ct. 373. It is doubtful that Exxon could articulate or

this Court could accept that there is a public policy

which holds that an employee who suffers from drug

addiction can never be rehabilitated or be reinstated to

his former position. That is the public policy Exxon

would have this Court pronounce.

2. A public policy favoring the eradication of

drugs from the workplace does not require

that the arbitration award rendered to the

Petitioner and the Respondent be vacated.

In its attempt to apply the public Policy exception

to this matter, the Fifth Circuit has engaged in

impermissible fact-finding, thus usurping the province of

the arbitrator. (IN a footnote to its opinion, Appendix A-

9, the Fifth Circuit speaks of its frustration with the fact

thatno transcript of the arbitration hearing was Provided:

that is because the Parties as a rule do not seek

transcription Of arbitration Proceedings and didnot do SO

in this dispute.) The-court recognized the danger of

infringing upon the authority of the arbitrator, Stating:

GCIWU argues that the record evidence

contains no indication of Woods’ duties at the

refinery, but does not dispute Exxon’s assertion

that Woods was freely transferrable to these

potentially hazardous assignments. A/though we

are cautioned against usurping the arbitrator's

flask of finding facts and drawing inferences, our

public policy inquiry permits us to consider this

established evidence even though it may not

have been considered by the arbitrator.

(Appendix A-5, ftnt. 1)(Emphasis added.)

Thus, to reach the result it desired, the court not

only misapplied the public policy exception, it also

invaded the exclusive province of the arbitrator in order

to to do so. There was, in fact, no “established

evidence" in the record such as that described by the

court: insteed, there was only a statement made at oral

argument Dy counsel for the Respondent, and a single

sentence in the brief presented to the court concerning

——&@2@<2+*au°€

the grievant's job duties. At the argument of this matter

before the court, counsel! for the GCIWU vigorously

contested the statement about job duties made by

Exxon's counsel.

The court again encroached upon the authority of

the arbitrator when it concluded:

The record does not show that Woods

was impaired while on duty or that he used

cocaine on Exxon's Premises. This

Circumstance, however, does not control in light

of Woods’ sensitive Position and his attempts to

conceal his drug use. Woods’ duplicity in hiding

his violation of the after-care agreement

obviously increases the risk of future violations.

(Appendix A-53)

The federai courts Nave made it clear that the

finding of facts and the Crawing of inferences from those

facts is the exclusive province ofthe arbitrator, see, e.g.,

Interstate Brands v, Chauffeurs, Teamsters Local 135,

909 F.2d 885, 894 (6th Cir., 1990). In the Interstate

Brands case, the Sixth Circuit ruled that the district court

engaged inimpermissible fact-finding when it concluded

that because of the criminal charges against the

grievant, it was likely that he had been in the past and

would be in the future under the influence of drugs or

alcohol while at work.

The Fifth Circuit held in Amalgamated Meat

Cutters vy. Great Western Food Co., 712 F.2d 122, 123

(Sth Cir. 1983), that it would not review the factual

findings or merit determinations made in an arbitration

award. In this case, the court has engaged in precisely

that kind of improper fact-finding and merit

determinations in order to conclude that the grievant

cannot be reinstated because of a Public policy.

Moreover, the court has completely discounted the

findings of the arbitrator as to the "risk of future

violations." The arbitrator found that risk to be Slight,

warranting reinstatement as the appropriate remedy.

GCIWU submits further that, in seeking to

enforce one public Policy, the court has seriously

impaired another, longer-standing Public policy of

encouraging peaceful labor relations through the use of

arbitration. Itis clear that the policy is firmly established

in this country that federal courts do not have jurisdiction

to determine the merits of a grievance arising under a

collective bargaining agreement containing a provision

for final and binding arbitration. The parameters for a

court's jurisdiction was established in a series of cases,

the Steelworkers Trilogy: United Steelworkers of

America v. American Manufacturing Co., 363 U.S. 564,

80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United

teelworkers of Ameri Warri If Navigati

Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409

(1960); and United Steelworkers of America v,

Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct.

1358, 4 L.Ed2d 1424 (1960). In American

Manufacturing, the first of the cases, the union sought to

compel arbitration of a grievance which arose under the

collective bargaining agreement. The lower courts had

refused to compel the arbitration on the ground that the

contract language involved was not Susceptible to the

interpretation being advanced by the union. This Court

reversed the lower court, reasoning at 363 U.S., 567-9:

The function of the court is very limited when the

parties have agreed to submit all questions of

contract interpretation to the arbitrator. It is

confined to ascertaining whether the party

seeking arbitration is making a claim which on its

face is governed by the contract. Whether the

moving party is right or wrong is a question of

contract interpretation for the arbitrator.

In the second of the Trilogy cases, Warrior and

Gulf Navigation, the Court announced a presumption of

arbitrability at 363 U.S., 582-3:

An order [by the Court] to arbitrate the Particular

grievance should not be denied unless it may be

Said with positive assurance that the arbitration

clause is not susceptible of an interpretation that

covers the concerted dispute. Doubts should be

resolved in favor of coverage.

The third case, Enterprise Wheel, addressed the

issue of the scope of judicial review of an arbitrator's

award, finding that the role of a court is a very limited

one. In that case, the employer refused to implement

the award of an arbitrator, claiming that the arbitrator

failed to apply correct principles of law to the

interpretation of the collective bargaining agreement.

The Supreme Court rejected this contention stating at

363 U.S, 589-9:

The acceptance ofthis view would require courts,

even under the standard arbitration clause, to

review the merits of every construction of the

contract. This plenary review by a court of the

merits would make meaningless the provisions

that the arbitrator's decision is final, for in reality

it would almost never be final. This underlines

the fundamental error which we have alluded to

in United Steelworkers of America v. American

Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343.

As we there emphasized, the question of

interpretation of the collective bargaining

agreement is a question for the arbitrator. It is

the arbitrator's construction which was bargained

for; and so far as the arbitrator's decision

concerns the construction of the contract, the

courts have no business overruling him because

their interpretation ofthe contract is different from

his.

In 1986, the Supreme Court reiterated support for

the finality of the arbitration process in the case of AT&T

Technologies vy. Communications Workers of America

475 U.S. 643, 106 S.ct 1415 (1986), when it again

considered the role of the courts:

The principles necessary to decide this

case are not new. They were set out by this

Court over 25 years ago in a series of cases

known as the Steelworkers Trilogy.... These

precepts have served the industrial relations

community well and have led to continued

reliance on arbitration, rather than strikes or

lockouts, as the preferred method of resolving

disputes arising during the term of a collective

bargaining agreement. We see noreason either

to question their continuing validity, or to

eviscerate their meaning by creating an

exception to their general applicability.

(Cites omitted.)

Misco affirmed yet again the judicial deference to

arbitration awards even where a public policy exception

is argued. The Steelworkers Trilogy and its progeny

determined that the public policy favoring the private

resolution of disputes between labor and management

is largely achieved by the grant of judicial deference to

arbitration decisions. In this case, Exxon specifically

told the arbitrator that the dispute was properly before

him, and there is no public policy which mandates that

a positive drug test in the past renders an individual

incapable of future employment in the same position.

The GCIWU is not arguing that in no instance of

a violation of Exxon's drug testing policy is termination

appropriate. It is arguing that the findings and the

conclusions of the arbitrator in this case are consistent

with a public policy designed to eradicate drugs from the

workplace and with the public policy which encourages

the private resolution of labor disputes. The GCIWU

submits that the decision of the Fifth Circuit is

inconsistent with this Court's rule in the Misco decision

and does nothing to advance either of the public policies

articulated above.

3. This Court should address the division

among the United States Courts of Appeal

regarding the application of the public policy

exception to the finality of arbitration awards.

lt is imperative that this Court address the

division among the circuit courts on the issue of the

application of the public policy exception in cases

involving the arbitration of terminations. In this regard,

at least three circuits have found that considerations of

public policy do not warrant abrogation of an arbitrator's

award ordering reinstatement.

In Northwest Airlines, Inc. v. AirLine Pilots Ass'n.

Intern., 808 F.2d 76 (D.C. Cir. 1987), the employer fired

a pilot who violated the FAA regulation against

consuming alcohol within twenty-four hours of a flight.

The court upheld the award of the System Board of

Adjustment, reinstating the pilot conditioned upon

recertification by the FAA, /d., at 78. The court went on

to find that, while it understood the employer's need to

apply reasonable Safety rules to pilots, there was

nothing in the collective bargaining agreement which

removed disciplinary action based on the violation of a

Safety rule form the arbitration process, /d., at 81-82.

The Fifth Circuit distinguishes this case on the ground

that a federal agency was involved in recertifying the

pilot after rehabilitation. Petitioner is not certain why this

distinction renders the reasoning of the court in

Northwest Airlines as to the importance of judicial

deference to arbitration awards, inapplicable herein,

particularly when the arbitrator conditioned this

grievant's reinstatement on a negative drug screen, a

requirement which is in conformance with the pipeline

regulations of the Department of Transportation, 49

C.F.R. 199.11(e). In like fashion to the Northwest

Airlines case, there is nothing in this case which

prevents reinstatement - no law is violated thereby, and

there is nothing in the collective bargaining agreement,

in the drug policy of the employer, in the after-care

agreement to which the grievant was subject, or in the

Stipulations presented to the arbitrator indicating that

this dispute could not be resolved through arbitration. If

the court takes the position that the arbitrator can only

reach the same conclusion as the company - that

termination is mandatory and the arbitrator has no

authority to render a different remedy - that is the same

aS Saying that the dispute was not arbitrable in the first

place. Exxon has not alleged that to be the case, nor

does the record support such an argument.

In the case of Stead Motors v. Automotive

inists Lodge 1173, 886 F.2d 1200 (9th Cir. 1989),

the court considered the rationale of Misco in deciding

whether it would enforce an award reinstating an auto

mechanic. The court made it clear that the question to

be answered is not whether there is a public policy

against a particular sort of behavior in society in general:

it is whether the reinstatement of an individual who has

engaged in that kind of behavior in the past would

violate public policy. The Stead court ruled that such

past behavior did not violate the public policy it was

addressing. That court also found the ruling in Delta

Airlines v. Air Line Pilots Ass'n Intern., 861 F.2d 665

(11th Cir. 1988), cited with approval by the appellate

court herein, to be simply inconsistent with the law as

expressed by Misco and W.R. Grace & Co, v, Local

Union No, 759, 461 U.S. 757, 103 S.Ct. 2177, 76

L.Ed.2d 298 (1983), Stead, at 1215-17.

In its analysis of the public policy exception, the

Stead court stated further, at 1213:

Ordinarily, a court would be hardpressed

to find a public policy barring reinstatement in a

case in which an arbitrator has, expressly or by

implication, determined that the employee is

Subject to rehabilitation and therefore not likely to

commit an act which violates public Policy in the

future... . Judgments about how a specific

employee will perform after reinstatement if given

a lesser penalty are nothing more than an

exercise of the arbitrator's broad authority to

determine appropriate punishments and

remedies. See Misco, 108 S.Ct at372.._-

This rule is supported by the Significant societal

interest in the rehabilitation of workers who err in

the workplace. All of us benefit from employees

who perform their jobs Safely and properly. All of

us Suffer when potentially productive workers are

relegated to the unemployment lines.

As we explained supra at 1215, we reject the

approach of the Eleventh Circuit that. simply

because an employee has committed some act

which violates a law or a public policy in the

course of his employment, his reinstatement

would also necessarily violate that public policy.

This argument is fallacious, reflecting precisely

the analytical error in Stead Motors’ argument

here, for it is only if the grievant is likely to

engage in wrongful conduct which violates public

policy in the future that his reinstatement could

be said to violate public policy. If we assume the

public policy posited by the original panel's

opinion, it may be true that Rocks’ conduct ran

afoul of it in the past. But we are not free to

assume that Rocks would, if appropriately

disciplined, run afoul of it in the future. As we

have emphasized throughout, it is the function of

the arbitrator, not the courts, to make

assessments with respect to appropriate

7 punishments and to determine the likelihood of

rehabilitation - a judgment whether the grievant

will engage in future wrongdoing.

The court below discounts the decision in Stead

because it does not involve drugs and because there

was a plurality of opinions. However, GCIWU submits

that the analysis of the majority in Stead is sound and in

conformity with Misco. Both Stead and the instant case

involve public policy considerations surrounding

reinstatement of an employee who is perceived as a

danger to the safety of the workplace and the public.

Thus, the reasoning of the court in Stead has direct

applicability to this matter.

The Fifth Circuit was itself faced with a public

policy argument similar to the one it considered herein

in the case of Oil Chemical Workers Loc. 4-228 v. Union

Oil Co, of Cal., 818 F.2d 437 (5th Cir. 1987). In that

case, the court upheld an arbitrator's award reinstating

an employee who was fired for drug-related offenses.

The union had argued that public policy actually

supported the reinstatement of the employee because

it favors rehabilitation of those addicted to drugs. The

Fifth Circuit held:

[T]the arbitrator found the probability that

Chester's off-premises drug use would hinder or

be involved in her performance on the job in the

future was too low to merit discharge. Off-

duty/off-premises conduct involving the illegal

use and sale of drugs Is not per se justification

for a worker's discharge. The collective

bargaining agreement provides for binding

arbitration. It was within the discretion of the

arbitrator in Chester's case to credit the public

policy favoring drug rehabilitation and find that

Chester no longer used drugs and would not

present a safety risk in the future. Based on the

facts available at the time of the arbitrator's

decision, enforcement of the arbitrator's award

would not have violated public policy.

Here the parties bargained for the

arbitrability of discharge grievances. The union

and the company agreed that an arbitrator would

determine whether an employee's termination

was for just cause. Chester won her award. The

arbitrator found the probability of an alleged

Safety risk so low as not to justify discharge. In

deference to the arbitrator's ruling, we wiil not

preempt his February 1985 findings.

I, at 442-443,

The Sixth Circuit has also considered the impact

of the public policy exception on arbitrations awards. In

Interstate Brands . supra, the court was confronted with

an arbitration award reinstating a truck driver/salesman

who was indefinitely suspended because of an arrest for

the off-duty Possession of cocaine, Marijuana, and drug

Paraphernalia. The grievant told the arresting officer

that he was attempting to shoot UP Cocaine when the

Officer arrived on the scene. The arbitrator returned the

grievant to his job and the employer sought to vacate

the award. The district court ruled that the

"reinstatement violated a well-defined public policy

against permitting habitual users of mind-altering illegal

drugs from operating motor vehicles." /d, p. 888.

The Sixth Circuit reversed, holding, at 893:

... the district court also mischaracterized the

public policy issue. A careful reading of the

district court’s opinion reveals that it was in

actuality evaluating Furst’s behavior. The issue

is not whether grievant’s conduct for which he

was disciplined violated some public policy or

law, but rather the award requiring the

reinstatement of a grievance (sic), i.e., “the

contract as interpreted,” WA. Grace, 461 U.S. at

766, 103 S.Ct. at 2183, violated some explicit

public policy.

As discussed above, there is no law or regulation

which mandates that an individual who has tested

positive for an illegal substance in the past may not be

returned to his job under any Circumstances. Instead,

there is a pargained-for provision between Exxon and

the GCIWU which gives an arbitrator the authority to

make the determination, in light of all of the

circumstances of the case, as to whether a discharge is

for just cause, and if not, what the appropriate remedy

is.

The Sixth Circuit also based its decision on the

fact that the district court had

engaged in impermissible fact finding in basing

its decision to vacate Furst's reinstaternent in

part upon the evidence excluded by the

arbitrator; namely Furst's conviction for reckless

driving and driving under the influence . . i

Finally, to conclude from the fact that Furst had

been indicted for possession of cocaine,

marijuana and drug paraphermaiia, that Fursthad

ever been or would be in the future under the

influence of drugs or alcohol while driving a

bread truck was also an exercise in fact finding,

a function the district court was not authorized to

perform.

/d, at 894, cites omitted.

The Fifth Circuit he* overstepped the very

bounds described in Interstate Brands, by finding that

there was an increased risk of future violations of the

drug testing policy by the grievant. This finding is not

supported by the evidence and is directly contrary to the

findings of the arbitrator who determined that the

grievant was a good candidate for rehabilitation and was

a credible witness. Further, there is absolutely no

evidence in the record that the grievant ever worked

under the influence of drugs or alcohol. The Fifth Circuit

has merely substituted its interpretation of the evidence

for that of the arbitrator and has improperly found that

the grievant would engage in the wrongful conduct in the

future. The court is not permitted to engage in such

fact-finding.

The GCIWU submits that the rulings in the

above-described cases reflect the correct interpretation

of this Court's ruling in Misco, and that the holdings of

the Fifth and Eleventh Circuits are inconsistent. In light

of this inconsistency, the GCIWU believes that this

Court must address the disparity among the circuits on

the issue of public policy as it applies to discharges on

the basis of drug or alcohol abuse.

4. The arbitrator did not exceed his jurisdiction

by considering post-termination conduct in

his award.

Finally, the GCIWU submits that the arbitrator did

not exceed his jurisdiction when he considered post-

termination conduct of the grievant. The arbitrator ruled

first that nothing in the collective bargaining agreement

or the drug testing policy required termination for a first

offense. Then he found that termination was too harsh

a punishment in this case, and fashioned a remedy

based on a number of different factors, including the

work history of the grievant, his credibility when

testifying, whether progressive Ciscipline had been

administered, whether the source of his problem was

being addressed, and the testimony of the GCIWU's

expert witness as to the effect of a single relapse in a

rehabilitation program. The arbitrator found that the

grievant was a good candidate for rehabilitation based

on those factors. He then looked at the grievant's post-

termination conduct to determine whether reinstatement

was an appropriate remedy.

Interestingly enough, the Fifth Circuit remanded

the case of Union Qil, supra, to the arbitrator with

specific instructions to reconsider his just cause finding

in light of the grievant's post-termination conduct, i.e.,

her continued use of drugs. /d, at 443. Inso doing, the

court was merely recognizing that, unlike other cases of

termination, cases involving substance abuse require

that the arbitrator go beyond the facts known at the time

of termination in order to fashion an appropriate remedy.

That is the only way the arbitrator can make a reasoned

determination as to what remecy will best serve the

interests of all parties.

The lower court herein relies on Misco as

supportive of its holding that the arbitrator exceeded his

jurisdiction by considering evidence of saideieiniaiiein

conduct. That reliance, however, is misplaced. The

Misco Court did not determine whether an arbitrator

should or should not consider post-termination

evidence: rather, the Court held that the arbitrator had

the authority to construe the contract as to what

evidence the arbitrator may consider when deciding a

discharge case. The Court found the arbitrator's action

“was consistent with our observation in John Wiley &

Sons, Inc. v. Livingston, 376 U.S. 943, 557 (1964), that

when the subject matter of a dispute is arbitrable,

‘procedural’ questions which grow out of the dispute and

bear on its final disposition are to be left to the

arbitrator."

The Fifth Circuit also pointed to a footnote in the

Misco case, 484 U.S. at 40, ftnt. 8, as supportive of its

position. Again, the court reads the comments of the

Court too broadly. This Court merely remarked that

arbitrators often, but not always, confine their

considerations to the facts known at the time of the

discharge.

In Owen Fairweather's treatise, Practice and

Procedure in Labor Arbitration, 260-262 (3rd ed. 1991),

the author discusses cases in which an arbitrator may

legitimately consider post-termination evidence. He

specifically refers to an award issued by Arbitrator Aaron

Horvitz, Hooker Chem, Cor., AAA Case No. 81-2

(1965) which states:

lf... the case must be viewed and should be

decided solely as to the facts as they existed as

of the date of discharge, | would have no choice

but to sustain the employer’s action. But the

company’s position, it seems to me, is not sound

under tne circumstances and is in conflict with

the weight of estimable arbitrable authority .. .

[MJedical authority .. . agrees that alcoholism is

a disease in the same sense as many other

afflictions which are beyond the Capacity of the

individual to control except through outside help

and treatment. If the grievant had been

discharged for excessive absenteeism and poor

work caused, let us say, by an aggravated ulcer

condition, which condition had been Cured or

relieved by surgery between the time of

discharge and the time of arbitration, it is clear to

me that | would have the right to consider the

Prognosis as of the time of the arbitration in

reaching a decision.

Arbitrator Horvitz went on to State that if an

arbitrator could not consider post-termination evidence

in such a case, “it would render rehabilitation, in many

Cases, a meaningless effort." As this Court held in

Misco, at 484 U.S., p. 39, [T]he parties bargained for

arbitration to settle disputes and were free to set the

Procedural rules for arbitrators to follow if they chose."

As the Petitioner has pointed out throughout this case,

Exxon never told the arbitrator he could not consider

post-termination conduct, nor did—it object to the

admission of such evidence. The district court and the

Fifth Circuit usurp the arbitrators authority when they

rule that he could not determine what evidence he would

hear in this matter.

Arbitrator Horvitz made a cogent point about the

consideration of post-termination conduct in a case

involving substance abuse. The arbitrator herein made

a determination that discharge was inappropriate in this

case, based on a-number of factors. The Petitioner

believes he would have been negligent in his duties had

he not considered the conduct of the grievant since his

discharge in assessing the appropriate penalty. The

better statement of the law on this point is that made by

the Ninth Circuit in Stead, at 1213: We apply the same

deferential review to an award's statements conceming

rehabilitation that we apply to other aspects of the

award.

CONCLUSION

This Court should review this case because the

Cecision of the lower court undermines the long-

established public policy favoring the Peaceful resolution

of labor disputes through the use of final and binding

arbitration, and is not consistent with this Court's ruling

in Misco regarding the proper fashioning of a public

policy. The Court should also review this case because

of the conflicts between the federal circuit courts of

appeal as to the impact of a public policy exception to

the finality of an arbitration award.

Alage)

Sharon D. Groth

Attorney for Petitioner

311 S. Loop 201

Baytown, TX 77520

(713) 427-1024

NO.

IN THE SUPREME COURT OF

THE UNITED STATES

October Term, 1993

GULF COAST INDUSTRIAL WORKERS UNION,

Petitioner,

EXXON COMPANY. USA,

Respondent.

Petition for Writ of Certiorari

to the United States Court of Appeals for the

Fifth Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Sharon D. Groth

Counsel of Record

311 S. Loop 201

Baytown, TX 77520

TABLE OF CONTENTS

PAGE

APPENDIX A: Opinion of Fifth

Circuit Court of Appeals A1 -A72

APPENDIX B: Relevant Con-

tract Provisions B1- B29

APPENDIX C: Arbitration

Award Of |. B. Helburn Ci - C33

APPENDIX D: Judgment of

United States District

Court For the Southern

District of Texas D1 - D2

APPENDIX A

GULF COAST INDUSTRIAL WORKERS

UNION, Plaintiff-Appellant,

EXXON COMPANY, U.S.A.,

Defendant-Appellee.

No. 91-6374.

United States Court of Appeals,

Fifth Circuit.

May 24, 1993

Appeal from the United States District Court for

the Southern District of Texas.

Before WILLIAMS, HIGGINBOTHAM, and

APPENDIX A

BARKSDALE, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Thomas Woods wants his job back. He lost it

when he tested positive for cocaine, a clear violation of

Exxon's Alcohol and Drug Use Policy and its after-care

program. The district court refused to enforce an

arbitration award instructing the company to reinstate

him. The court held that the arbitrator's ruling was

doubly defective because (1) it offended public policy by

ordering the reinstatement of a proved drug abuser to

his safety-sensitive position, and (2) the arbitrator

APPENDIX A

exceeded his authority by relying upon Woods's post-

discharge conduct. We agree with the district court on

both counts and affirm the summary judgment in favor

of Exxon.

I. FACTS AND PRIOR PROCEEDINGS

This appeal is somewhat unusual for a

disciplinary case in that the parties are in complete

agreement regarding the underlying facts. For the most

part, they are straightforward and largely stipulated.

Exxon Company, U.S.A. ("Exxon") employed

Thomas W. Woods, the grievant, as a wanes

technician at its Baytown, Texas petro-chemical refinery.

APPENDIX A

Woods was not a desk-bound employee. As a process

technician, he was freely transferable into assignments

involving the supply of electricity, steam, water, and

nitrogen to other parts of the plant. These volatile gases

and liquids are produced and handled at extremely high

temperatures and pressures.

GCIWU argues that the record evidence

contains no indication of Woods's duties at the refinery,

but does not dispute Exxon’s assertion that Woods was

freely transferable to these potentially hazardous

assignments. Although we are cautioned against

usurping the arbitrator's task of finding facts and

Grawing inferences, our public policy inquiry permits us

to consider this established evidence even though it

may not have been considered by the arbitrator. See

United Paperworkers Intern. Union v. Misco, Inc., 484

U.S. 29, 44, 108 S.Ct. 364, 374, 98 L.Ed.2d 286 (1987);

Chrysler Motors v. International Union, 959 F.2d 685,

nee eel

APPENDIX A

Woods is a member of the Gulf Coast Industrial

Workers Union (“Union" or “GCIWU") which, along with

Exxon, is Signatory to a collective bargaining agreement

covering disputes between the parties. As with most

agreements, it authorizes Exxon to discipline or

discharge its employees for just cause and Provides for

689 n. 4 (7th Cir. 1992).

We take this opportunity, however, to highlight a

frustrating difficulty with this case. In discussing the

record, both parties make numerous references to what

transpired at the arbitration hearing. The hearing

transcript, however, was never entered into the record

and is not before us on appeal. Since both Exxon and

the Union reference the arbitration hearing, we take

judicial notice of those portions of the transcript to which

the parties refer Pursuant to Fed.R.Evid. 201. See

generally 10 MOORE'S FEDERAL PRACTICE

SECTION 201.60 (1988).

APPENDIX A

final and binding arbitration of unsettled employee

grievances. Article 26, Section B of the agreement

provides: “The Company shall have the right to

Ciscipline and discharge ssiehaimes for justcause. The

commission of the offenses listed in Schedule C

{including drug use] shall be just cause to render an

employee liable to discharge on first offense.”

Since January 1990, Exxon has also had in place

a comprehensive Alcohol and Drug Use Policy that,

while recognizing drug dependency as a treatable

condition and encouraging troubied employees to seek

help, “absolutely prohibit(s]" a worker from using or

being under the influence of controlled substances on

‘aia i

APPENDIX A

the premises. Any violation of the Policy is “cause for

termination of employment." The Policy also requires

workers who have completed programs for substance

abuse or alcoholism to Participate ina mandatory five-

year after-care program. Among other things, the after-

Care contract requires total abstinence from all alcohol

and non-prescription, controlled drugs. Employees are

instructed what actions to take if a relapse occurs or if

Stress threatens to endanger the worker's sobriety. The

contract also authorizes unannounced and periodic

random drug/alcoho! testing for the entire five-year

duration of the after-care Program. A positive test result

is grounds for disciplinary action, including termination.

APPENDIX A

lf the employee follows the instructions, he may receive

a second chance. If he fails to comply, he faces

possible termination.

In April 1990, Woods voluntarily informed his

supervisor at Exxon that he had recently participated in

a 30-day, alcohol-rehabilitation program. In accordance

with the stated Policy, Woods met with management to

fashion his after-care program. Woods agreed to forego

all alcohol and non-prescription drugs and to notify his

Supervisor or a counselor in case of relapse. In

addition, Woods acknowledged that Exxon would

perform random tests for drugs and alcohol throughout

the five-year period. He signed an agreement, which

APPENDIX A

provided in part:

| have read Exxon’s Alcohol and Drug Use

Policy. The policy requires me to submit to

periodic alcoho! and drug testing at the

Company's request. | understand | will be

Subject to periodic and unannounced alcohol and

drug testing for a period of 60 months .... |

understand that a positive alcohol Or drug test

result or refusal to submit to periodic testing is

grounds for discipline as referenced in Exxon's

Alcohol and Drug Use Policy.

The Policy then-effective Provided that the “use . . . of

illicit or unprescribed controlled drugs . . . is Strictly

APPENDIX A

prohibited and is grounds for termination."

Less than two months into the after-care

program, Woods tested positive for cocaine.” In

violation of the agreement, however, Woods had failed

to notify anyone of his relapse. Moreover, he never

admitted using cocaine until the test results came back

positive, three days affer the test was administered.

Exxon immediately fired Woods fer violating its Alcohol

and Drug Use Policy and for breaching the after-care

* The Union does not dispute the testing process

used, the chain of custody, or the accuracy of the

positive results. Moreover, the parties note that the

fiadings do not indicate the degree of impairment, if any,

when the drug was used, or the amount ingested.

APPENDIX A

agreement in using cocaine and also in failing to report

his relapse.

The Union filed a grievance contesting the

termination. After the earlier steps in the grievance

‘A

process failed, GCIWU invoked arbitration.’ A single

issue was SuDmitted to the arbitrater: “Was Thomas W

‘VOOds discharged for just cause and, if not, what is the

proper remedy?" Noting that violation of the after-care

agreement does not mandate automatictermination, the

arbitrator held that summary discharge was unjustified

enc too harsh a penaity. Instead, he sustained the

The parties stipulate that the grievance was

properly before the arbitrator.

APPENDIX A

grievance and directed Exxon to reinstate Woods to his

previous job without backpay contingent upon a

negative drug and alcohol screen.” The arbitrator said

in his opinion that while there was “no cuestion that the

Company had just cause to ciscipline Woods,” the

grievant seemed a “good bet for successful

rehabilitation."

When Exxon informed Gulf Coast that it did not

intend to abide by the award, the Union instituted this

suit to enforce the award. Exxon counter-claimed to

* Given the lag between Woods's discharge and the

arbitrator's decision, the practical effect of the award

was a Suspension of over one year.

APPENDIX A

vacate the award asserting that it violated sound

principles of public policy in directing the reinstatement

of Woods to his safety-sensitive position and also that

the arbitrator had exceeded his authority cy Dasing his

Gecision upon Woods's Dost-cischarge conduct.

Upon cross-motions for summary judgment, the

Cistrict Court granted Exxon's requested relief and

vacated the arbitration award. Gulf Coast timely

appealed.

ll. DISCUSSION

[1.2] in reviewing a summary judgment, we

employ the same standard used by the district court.

Netto v. Amtrak, 863 F.2d 1210, 1212 (5th Cir. 1989).

APPENDIXA

Since the facts are undisputed here, our sole mission is

to determine whether “the moving party is entitled to

judgment as a matter of law.” FED.R.CIV.P. 56(c).

Accordingly, we review de novothe district court's order

to vacate the arbitration award. Forsythe Intern., S.A. v.

Gibbs Oil Co. of Texas, 915 F.2d 1017, 1020-21 (Sth

Cir. 1990).

(3] In making this determination, we recognize

that federal courts defer to the arbitrator's resolution of

the dispute "whenever possible.” Anderman/Smith Co.

61215, 1218 (Sih Cir.

1990), cert. cenied, = EUS. 111 S.Ct. 2799,

115 L.Ed.2d 972 (1991). Congress's decided

APPENDIX A

preference for arbitration, as reflected in federal statutes

regulating labor-management relations, establishes a

Standard of review that is highly deferential to the

arbitrator's bargained-for judgment.

[4,5] Notwithstancing this admonition, however,

arbitration awarcs are not inviolate. We properly review

arbitration awards to determine whether the award

“stems from fraud or partiality; ... concerns a matter not

subject to arbitration under the contract: .. . does not

‘Cra[w] its essence’ from the contract; ... or... violates

culric policy.” fanviie Forest Prod. v. United

Paperworkers Intern., 831 F.2d 72, 74 (Sth Cir. 1987).

In this background we consider the two alternative

APPENDIX A

grounds Exxon asserts for vacating the award.

A. “Well Defined and Dominant" Public Policy”

We reject the Union's argument that Exxon

somehow waived its public a argument by agreeing

to arbitration and/or by not advancing it before the

arbitrator. Uncer the terms of the collective bargaining

agreement, the company had no choice Dut to arbitrate

the grievance after earlier proceedings were exhausied.

In any event, courts are the ultimate arbiters of public

policy, not arbitrators. WAR. Grace & Co. v. Loca/ Union

759, 461 U.S. 757, 766, 103 S.Ct. 2177, 2183, 76

L.Ed.2d 298 (1983); see /Jowa Elec. Light & Power v

Local Union 204, 834 F.2d 1424, 1427 (8th Cir.

1987)("Because collective barcaining egreements co

not formulate public policy, end arbitrators cannot

consider matters not encompessed Dy the governing

persion ihe cuestion of suodlic policy is ultimately

. tion by the courts.”)(quoting WA. Grace,

+61 U.S. a 766, 103 S.Ct. at 2183).

Indeed, Aad the arbitrator below relied upon

public policy in reaching his decision, that in some

holdings, is considered error. Loca/ No. P-1236 v.

lan

APPENDIX A

(6] Exxon argues the well-settled rule that, as

with any other contract, arbitration awards are subject to

challenge if they violate public policy. United

Paperworkers Intern. Union y Misco, Inc., 484 U.S. 29.

42, 108 S.Ct. 364, 373, 98 L.Ed.2d 286 (1987). Asthe

Supreme Court there exolained, 4 court's refusal to

enforce an award that is contrary to public Dolicy is little

more than “a specific application of the more general

coctrine, rooted in the common law. that é court may

vones Dairy Farm, 680 F.2d 1142 1144 ‘th Cir.

1982)("When an arbitrator oases his award on public

policy considerations, he has overstepped his authority

and the court may review the substantive merits of the

award.”)

| /

APPENDIXA

refuse to enforce contracts that violate law or public

policy.” 484 U.S. at 42, 108 S.Ct. at 373.

Misco is the leading and dominant case setting

out the rules applicable to reviewing arbitration awarcs

on public policy grouncs. In Misco, an employee at a

apprehenced him in a co-workers car that was filled

with marinuanz smoke. The company asseried that

being in @ car with a iit marihuana cigarette violated the

and orcerec reinstatement. As in the instant case, the

company attempted to vacate the arbitration award on

APPENDIX A

several grounds, including the argument thai

reinstatement was offensive to public policy. The district

court agreed that the awerd must be Set aside because

it contravened general safety concerns that arise from

the operation of dangerous machinery while uncer the

influence of drugs, as well as state laws proscribing drug

possession.” A divided panel of this Circuit affirmed,

reasoning generally that workplace safety militated

against restoring the worker to his hazardous job. The

Court articulated the policy violated merely as “one

° The employee operated a slitter-rewinder machine,

a hazardous object that uses sharp blades to cut rolling

coils of paper.

————————————

APPENDIX A

against the operation of dangerous machinery by

persons under the influence of drugs or alcohol." Misco

v. United Paperworkers Inte-nationa! Union, AFL-C/O,

768 F.2d 739, 743 (5th Cir. 19851.

[7] The Supreme Coun reversed our decision

which had upheld vacating the worker's ;einstatement.

The Court relied upon two reasons. First, our judicially-

noticed public policy formulation, although "firmly rooted

in common sense," was insufficient to support the

Court's vacating the arbitration eward because itignored

the requirement of 1A. Grece that a reviewing court

must, as a necessary first step, identify with specificity

the existing laws and legal precedents underlying its

(emai ia aati

APPENDIX A

decision. W.R. Grace & Co. v. Local Union 759, 461

U.S. 757, 766, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298

(1983). The Supreme Court re-emphasized in Misco

that, when applying the narrow public policy exception,

courts are forbidden to use imprecise notions of public

policy which would allow ill-defined considerations to

negate the rule favoring judicial deference. "At the very

least," wrote Justice White, “an alleged public policy

must be properly framed under the approach set out in

“AR. Grace, and the violation of such a Dolicy must be

ciearly shown if an award is not to be enforcec.” 484

U.S. at 43, 108 S.Ct. at 373. Second, even assuming

the existence of such a policy, the record evidence in

PSE en

APPENDIXA

Misco failed to demonstrate that the employee had

actually operated dangerous machinery while impaired.

[8] The dictates of Misco must resolve the

parties’ public policy arguments. Although the public

policy exception to our usual Cceference is not to be

invoked lightly, a court may exercise its judicial power to

abrogate a private agreement when, for example, it

gives short shrift to the public's important yet

unrepresented interests. When such violations are

alleged, we enjoy more latitude in reviewing the

arbitrators decision. As the Supreme Court held in

W.R. Grace, the question of public policy is wholly

independent from the collective bargaining agreement

—

APPENDIX A

and “is ultimately one for resolution by the courts." 461

U.S. at 766, 103 S.Ct. at 2183. In such instances,

reviewing courts resolve the issue by “taking the facts

as found by the arbitrator, but reviewing his conclusions

de novo." /owa Elec. Light & Power v. Loca! Union 204,

834 F.2d 1424, 1427 (8th Cir. 1982); E/ DuPont de

Nemours v. Grasselli Emp. Ass'n, 790 F.2d 611, 617

(7th Cir.), cert. denied, 479 U.S. 853, 107 S.Ct. 186, 93

L.Ed.2d 120 (1986).

[9] In the instant case, the district court relied

ExCiusively upon the “common sense" basis for refusing

to reinstate Wood. [sic] While speaking generally about

the public's interest in a safe workplace free of alcohol-

APPENDIX A

and drug-abusers, the court did not ground its decision

upon an articulated review of laws and legal precedents

that frown upon the reinstatement of such employees.

[10,11] We do not focus upon whether Wood's

[sic] underlying conduct violates public policy. It

obviously does. Rather, under A4isco the courts must

detail specifically the official measures establishing the

policy upon which it relies. After such an inquiry, we

hold that it offends public policy for Woods, an employee

who occupies a Safety-sensitive position, to retain his

job upon testing positive for cocaine while on the job

and aiter having preached his company’s Crug abuse

policy on two occasions - first when he broke his pledge

APPENDIX A

of abstinence, and second when he failed to disclose his

relapse. To be sure, public policy clashes unmistakably

with Woods's use of a controlled substance. We find

that it is contrary to the arbitration award as well.”

' In a footnote, the /Misco Cour? declined to address

the issue of whether invocation of the public policy

doctrine requires a showing that the “award itself

violates a statute, regulation, or other manifestation of

positive law, or compels conduct Dy the employer that

would violate such a law." 484 U.S. at 45 n. 12, 108

S.Ct. at 374-75 n. 12. Legal authority generally holds

that a court need not find that the award itself is illegal

before overruling an arbitrator on Public policy grounds.

SeeR. GORMAN, LABOR LAW - UNIONIZATION AND

COLLECTIVE BARGAINING. 997 (1982)(stating thatan

ewerd may be vacated when it, “although not requiring

illegal conduct, is said to be inconsistent with some

Significant public policy"); see a/so, e. 9., Grasselli, 790

F.2d at 616; /owa Elec., 834 F.2d at 1427-28 n. 3; US.

Postal Ser. v. American Postal Workers Union, 736 F.2d

APPENDIX A

There are countless statutes, regulations,

company guidelines, and judicial decisions that

pronounce the emphatic national desire to eradicate

illicit Gruas from he workplace. Every Cay, legislatures,

agencies, and courts reflect cur intolerance of

822, 824 (ist Cir. 1984). Butsee, e.g., American Postal

Workers v. Unitec States Postal, /89 F.2d 1,8(D.C. Cir.

1986)(upholding an award reinstating a worker who

admitted to mishancling mail because reinstatement did

not violate positive law or otherwise compel illegal

conduct). Although these authorities, with the exception

of Jowa Electric, are pre-Misco. ncthing in the Supreme

Court's decision mandates e conirary result. Indeed,

refusing to vacate an arbitration éarc unless it violates

some maniestation of positive lé.v would be difficult to

Square with “the more general coctrine ... that a court

may refuse io enforce contracts inat violate law orpublic

policy." WA. Grace, 461 U.S. at 766, 103 S.Ct. at 2183

(emphasis added).

Oar: _s

‘

APPENDIX A

substance abusers and the astronomical costs - both

human and financial - associated with their behavior. As

other cases have done, we proceed to highlight the

various legal sources reflecting our nation’s “well

defined and dominant" desire for a drug-free society.

1. federal statutes =

The 1988 Drug-Free Workplace Act, 41 U.S.C.

Sections 701-707, post-dates Misco. \It mandates drug-

free workplace requirements for federal contractors.

Under this Act, to which Exxon is bound as a

government contractor, "[n]o person . .. shall be

considered a responsible source . . . for the purposes of

being awarded a contract for the procurement of any

APPENDIX A

property or services of a value of $25,000 or more from

any Federal agency unless such person has certified to

the contracting agency that it will provide a drug-free

workplace[.]" /a& Section 701(a)(1). The Drug-Free

Workplace Act also requires private employers with

federal contracts to (1) publish a statement notifying

their workers that the unlawful manufacture, distribution,

dispensation, possession, or use of a controlled

substance is prohibited in the workplace, (2) notify the

employees that their continued employment hinges

upon compliance with the policies outlined in this

statement, and (3) establish a drug-free awareness

program to inform their employees of the "dangers of

APPENDIX A

drug abuse in the workplace." /o Section 701(a)(1)(A)-

(D). Acompany’s failure to comply with the Act subjects

the company’s federal contract to possible termination.

In the case of grievant, Thomas Woods, there

was no showing that he possessed or used cocaine on

the premises. But this is no longer a critical distinction.

According to Exxon, it is also bound as a government

contractor, to comply with the Defense Department's

regulations mandating a drug-free workplace. 48C.F.R.

223.5(1992)(stating the Department's policy “to ensure

that its contractors maintain a program for achieving a

drug-free work force" since a contractor's employee's

use of illegal drugs “at any time" can "(1) Impair their

APPENDIX A

ability to perform tasks that are critical to proper contract

performance [and]; (2) Increase the potential for

accidents and for failures that can pose a serious threat

to the national security, health, and safety[.]")(emphasis

added). A companion regulation voices a similar

position:

Contractors shali adopt appropriate

personnel procedures to deal with employees

who are found to be using drugs illegally.

Contractors shall not allow any employee to

remain on duty or perform in a sensitive position

[defined in part as a job impacting health or

safety or requiring a high degree of trust or

APPENDIX A

confidence] who is found to use illegal drugs until

such times as the Contractor, in accordance with

procedures established by the Contractor,

determines that the employee may perform in

such a position.

48 C.F.R. 252.223-7004(d)(1992).

The recently enacted Americans with Disabilities

Act ("ADA"), 42 U.S.C. Sections 12101-12213, is also

instructive. While broadening employment opportunities

for millions of disabled workers, the ADA affirmatively

excludes from protection persons who are using drugs:

"For purposes of this chapter, the term ‘individual with a

disability’ does not include an individual who is currently

APPENDIX A

engaging in the illegal use of drugs[.]". /d& Section

12114. By placing drug users outside the ADA’s

protective ambit, Congress explicitly refused to open

employment doors for them.

2. state statutes

Statutes enacted by Texas further define the

dominant public policy favoring a drug-free society. For

example, Texas Revised Civil Statutes Annotated article

8308-7.10(a)(West Supp. 1993), styled Policies for

elimination of drugs in the workplace, mandates the

following: “Each employer who has 15 or more

employees and who maintains workers’ compensation

insurance coverage shall adopt a policy designed to

APPENDIX A

eliminate drug abuse and its effects in the workplace."

Another statutory provision, which requires state

agencies to report equal employment Opportunity data

concerning handicapped persons to the governor's

office, specifically excludes from the definition of

“handicapped person” anyone “who is addicted to the

use of alcohol or to a drug or other controlled

substance." TEX.REV.CIV.STAT.ANN. art. 6252-16b,

Section 1 (West Supp. 1993). Likewise, the state’s

Commission on Human Rights Act, enacted “to secure

for persons within the state freedom from discrimination

in certain transactions concerning employment... [and]

to preserve the public safety, health, and general

APPENDIX A

welfare," affirmatively states that "disability" does not

include “a person with a current condition of addiction to

the use of alcohol or any drug or illegal or federally

controlled substance[.]" TEX.REV.CIV.STAT.ANN. art.

5221k, Sections 1.02(2) and 2.01(4)(A)(West Supp.

1993).

3. various regulations

Additionally, we refer to examples of the

innumerable regulations from various governmental

agencies concerning drug testing programs as further

demonstrating our current national policy. The

Department of Transportation has promulgated

comprehensive regulations arguably applicable to

APPENDIX A

Weods mandating anti-drug programs for workers

stationed on petro-chemical pipelines. 49 C.F.R.

Section 199 (1991). Many other regulations echo the

concern. See, e.g., Control of Alcohol and Drug Use, 49

C.F.R. Section 219 (1992)(Federal Railroad

Administration); Federal Aviation Administration Drug

Testing Program, 14 C.F.R. Section 121, Appendix |

(1992): Fitness For Duty Programs, 10 C.F.R. Section

26 (1993)(Nuclear Regulatory Commission);

Department of Defense Drug Abuse Testing Program,

32 C.F.R. Section 60 (1992); Procedures for

Transportation Workplace Drug Testing Programs, 49

C.F.R. Section 40 (1992)(Department of

APPENDIX A

“1 Transportation).

More generally, pursuant to a presidential

initiative to establish drug-free workplaces, Executive

Order No. 12564 (reprinted in 5 U.S.C. Section 7301

note) requires every federal executive agency to

establish a random testing program for civilian

employees who hold safety- and security-related

positions.”

* The Order, which forbids illegal drug use by federal

employees both on and off duty, specifically recognized

that,

Drug use is having serious adverse—effects

upon a significant proportion of the national work

force and results in billions of dollars of lost

productivity each year;

zaeneneuarst

APPENDIX A

4. judicial decisions

An abundance of judicial decisions condemn the

presence of drugs inthe workplace. Misco, for example,

although the Supreme Court took issue with the failure

to formulate the invoked policy with precision, noted that

our view that public policy condemns the operation of

dangerous machinery by workers using drugs or alcohol

“is firmly rooted in common sense." 484 U.S. at 44, 108

The Federal government, as the largest

employer in the nation, can and should show the

way towards achieving drug-free workplaces

through a program designed to offer drug users

a helping hand and, at the same time,

demonstrating to drug users and potential drug

users that drugs will not be tolerated in the

Federal workplace]. ]

APPENDIX A

S.Ct. at 374; see also, Oil Workers Loc. 4-228 v. Union

Oil Co. of Cal, 818 F.2d 437, 442 (5th Cir.

1987)(recognizing this Circuit's strong public policy

against the operation of dangerous machinery by

persons using drugs or alcohol). Other jurisdictions are

in accord. In acase involving a papermill worker who

possessed marihuana on company premises, the First

Circuit specifically “conclude[d] that there is a well-

defined public policy against the use of drugs in the

workplace." S.D. Warren Company v. United Paper

Workers Intl Union, 815 F.2d 178, 186 (‘st

Cir.)( "Warren |"), vacated, 484 U.S. 983, 108 S.Ct. 497,

98 L.Ed.2d 496 (1987), on remand, 845 F.2d 3 (‘st

APPENDIX A

Cir.)( "Warren //"), cert. denied, 488 U.S. 992, 109 S.Ct.

995, 102 L.Ed.2d 582 (1988). In language pertinent to

the case before us, the Court observed:

There are laws against the sale and use of

drugs enacted by all states, ... and the sale and

use of drugs is a serious offense under federal

laws. [citations omitted]. Furthermore, the nation

has focused on the corrosive consequences of

drug sale and use and has devoted itself to their

eradication. In particular, the work shop is a

place where such usage is abominable not only

because of the health hazard it creates, but also

because it creates an unsafe atmosphere and is

APPENDIX A

deteriorative of production, the quality of the

products, and competition.

815 F.2d at 186."

° Upon remand for further consideration in light of

Misco, the First Circuit in Warren // did not affirm

specifically the Warren / holding that vacated the

arbitration award on public policy grounds. Instead, the

Court chose not to revisit the public policy issue and

“assume[d] without deciding" that Misco foreclosed the

alternate public policy basis for its earlier decision.

Warren //, 845 F.2d at 7. Instead, Warren //relied upon

the arbitrator's usurpation c: authority in ignoring the

contract's plain language that granted management the

sole right to discharge employees for cause and

removed from the arbitrator the authority to fashion a

remedy once certain rules were broken. It was careful,

however, to highlight a post-///sco case from the Eighth

Circuit which relied upon Warren / as a basis for

refusing to enforce an arbitration award on public policy

grounds. See /owa Elec., 834 F.2d at 1428.

APPENDIX A

As we have noted previously, petro-chemical

refineries are dangerous places; there is no margin for

error. See Union Oil, 818 F.2d at 439, 441 n. 3

(affirming the arbitrators emphasis on “the danger

inherent in the oil refinery work environment" where

“fires and explosions often occur . . . with calamitous

and costly results"). Woods's duties as a process

technician atthe refinery involved the potential handling

of high-pressure and high-temperature liquids and

gases. Such assignments have the capacity to place

thousands of people, as well as the surrounding

APPENDIX A

environment, at risk.'° As Arbitrator Grimes remarked

in an arbitration involving a petro-chemical facility,

(Refineries have] the responsibility to the

community, its owners and its employees to

provide a safe work environment. Given the

nature of the products handled in a refinery,

particularly those in operations where the most

volatile and hence more explosive gases and

fluids are produced, an accident which can result

'° The Baytown refinery operates in a community of

over 60,000 residents. Moreover, according to Exxon,

"the refinery sits on the banks of the Houston Ship

Channel, an environmentally sensitive waterway that

feeds into the Gulf of Mexico."

APPENDIX A

from a seemingly insignificant misstep can

produce a catastrophe.

Marathon Petroleum Co., 89 Lab.Arb. 716, 722 (1987).

Woods's position is rightly characterized as

safety-sensitive. And federal courts have with some

frequency overturned awards of reinstatement on public

policy grounds where, as here, public safety was

implicated. See, e.g., Amalgamated Meat Cutters v.

Great Western Food Co., 712 F.2d 122, 125 (Sth Cir.

1983)(reversing an arbitrator's reinstatement of an over-

the-road truck driver who drank liquor while on duty);

lowa Elec., 834 F.2d at 1427-30 (refusing to reinstate a

nuclear power plant employee who had compromised a

APPENDIX A

reactor safety system, despite the arbitrator's decision

that discharge was too harsh a sanction); De/ta Air

Lines, Inc. v. Air Line Pilots Assn, /nt?/, 861 F.2d 665,

666-68 (11th Cir. 1988)(striking down an award that

reinstated a pilot who flew while intoxicated), cert

denied, 493 U.S. 871, 110 S.Ct. 201, 107 L.Ed.2d 154

(1989); Georgia Power Co. v. IBEW, Local 84, 707

F.Supp. 531, 533-34 (N.D. Ga. 1989)(refusing to

reinstate a power company employee who was a

chronic drug user and who was responsible for

monitoring various meters and gauges to ensure that

high pressure equipment did not overheat), affa, 896

F.2d 507 (11th Cir. 1990).

APPENDIX A

The Supreme Court has approved of drug testing

for employees in safety-sensitive jobs. Skinner v.

Railway Labor Executives Assn, 489 U.S. 602, 621,

109 S.Ct. 1402, 1415, 103 L.Ed.2d 639 (1989)(noting

that Government has a strong interest in preventing

railroad personnel “from using alcohol or drugs while on

duty, or while subject to being called for duty" so as to

ensure the safety of the public and of the employees

themselves); National Treasury Employees Union v.

Yon Raab, 489 U.S. 656, 670, 109 S.Ct. 1384, 1393-94,

103 L.Ed.2d 685 (1989)(recognizing that Government's

interest in guarding against on-the-job impairment

justifies the imposition of suspicionless drug-testing of

APPENDIX A

certain customs wien

[12] We hold that the above-cited authorities,

viewed particularly in light of Woods's efforts to conceal

his drug use, represent a valid expression of a “well

defined and dominant" pubiic policy. The delineation of

public policy does not fall short by consisting only of

"general considerations of supposed public interests."

To be sure, various courts have achered to a

narrow construction of the public policy exception and

have refused to disturb an arbitrators bargained-for

judgment on public policy grounds. GCIWU relies

primarily upon two decisions for its position that

Woods's reinstatement does not breach public policy.

APPENDIX A

First, it cites Stead Motors of Walnut Creek v.

Automotive Machinists Lodge No. 1173, Intl Assn of

Machinists and Aerospace Workers, 886 F.2d 1200,

1216-17 (9th Cir. 1989)(en banc), cert. denied, 495 U.S.

946, 110 S.Ct. 2205, 109 L.Ed.2d 531 (1990). In Stead,

a plurality of the en banc Ninth Circuit found no

dominant public policy barring the reinstatement of an -

auto mechanic who recklessly failed to tighten a car's

lug bolts. Drug use was not involved in the case. Ina

severely split decision, the Stead plurality held that the

materials relied upon by the original panel, California

code provisions regarding auto safety and maintenance,

were insufficient to form an explicit, well-defined, public

APPENDIX A

policy. Without expressly saying so, the plurality opinion

also strongly suggests that unless the award itself

constitutes a clear violation of positive law, courts are

powerless to intervene - a question left purposely

unresolved by the Supreme Court in Misco, 484 U.S. at

45, n. 12, 108 S.Ct. at 374-75, n. 12, and expressly

rejected by this Court.

[13] Moreover, the plurality states a rule of

construction that a grievant's “amenability to discipline"

cannot be second-guessed by a reviewing court,

whatever the policy issue at stake. Stead, 886 F.2d at

1213 (citing dicta from Misco, 484 U.S. at 44-45, 108

S.Ct. at 374). We reject such a restrictive test, which

APPENDIX A

would have the practical effect of ousting the courts of

jurisdiction and abdicating the public policy question

entirely to arbitrators. Under the plurality’s problematic

decision, if an arbitrator finds the discharged employee

amenable to discipline and therefore unlikely to breach

a properly-framed public policy in the future, such a

determination would be unreviewable. Our reading of

Misco does not compel such a “hands-off" policy. The

plurality’s rule of no judicial power to evaluate

amenability does not comport with WAR. Graces

teaching, acknowledged in Misco, that "the question of

public policy is ultimately one for resolution by the

courts.” 484 U.S. at 43, 108 S.Ct. at 373 (quoting WA.

APPENDIXA

Grace, 461 U.S. at 766, 103 S.Ct. at 2183). The

valuable principle of deference to arbitration does not

take us So far.

—_— ——

Second, the Union cites Northwest Airlines v. Air Line

Pilots Assn, Inti, 808 F.2d 76 (D.C. Cir. 1987), cert

denied, 486 U.S. 1014, 108 S.Ct. 1751, 100 L.Ed.2d

213 (1988), in which the D.C. Circuit ordered the

reinstatement of a commercial airline pilot who had

admitted to flying his plane while intoxicated. But

Northwest Airlines includes a unique factual distinction.

In that case, the Federal Aviation Administration ("FAA")

had recertified the pilot after he had completed an

alcohol rehabilitation program. FAA recertification, a

APPENDIX A

condition the arbitrator made integral to his

reinstatement award, embodied aspecific determination

by the regulator itself that the pilot was "fit and qualified

to fly." 808 F.2d at 83. Acourt would certainly be hard-

pressed to oppose reinstatement where the regulatory

body charged with ensuring workplace safety agrees to

it. That did not happen in the instant case. Arbitrator

Helburn did not condition his reinstatement of Woods

upon a specific determination by a governmental body

that Woods was fit to resume his duties at the refinery.

This is not just the usual case of an arbitrator's

reinstatement of a errant employee. We view as of the

utmost importance in this case that fact that Woods

APPENDIX A

tested positive for a drug as critical and powerful as

cocaine when he had already been through

rehabilitation and was in a sense on probation. Then,

he did not notify anyone of his relapse as required, and

only later did he admit his serious breach when

confronted with the test results. A conclusion requiring

“another chance" and further rehabilitation is on its face

extremely risky under these unusual and uncommon

circumstances. As Arbitrator Helburn himself

recognized, “Discharge is appropriate where the

employer can demonstrate the previous use of

progressive/corrective discipline to no avail." The

reinstatement of such a worker is not compelled by

APPENDIX A

Misco, and we find no judicial decision requiring

upholding an arbitrator's awarding of reinstatement to

such an employee.

The record does not show that Woods was

impaired while on duty or that he used cocaine on

Exxon’s premises. This circumstance, however, does

not control in the light of Woods's sensitive position and

his attempts to conceal his drug use. Woods's duplicity

in hiding his violation of the after-care agreement

obviously increases the risk of future violations. Also,

‘ered VVoods to be restore to his

“Fy

(

a9)

“|

—

re.)

—

orevious safety-sensitive position. Exxon was not

allowed to consider placing him in a less dangerous

APPENDIX A

assignment. In Misco, the Supreme Court made

reference to the provision of the award that permitted

the company to transfer the grievant to a different

equivalent job, remarking that it was unclear that the

worker “would pose a serious threat to [himself and

others] in every job for which he was qualified." 484

U.S. at 45, 108 S.Ct. at 374. In the case before us, no

such discretion exists; Woods was ordered to be

returned to his former position as a process

technician. |

Other courts have noted that companies could

face extraordinary liability if, despite proven instances of

deception regarding the company’s drug policy, they

nevertheless restored violators to their sensitive

APPENDIX A

As stated above, courts are the ultimate arbiters

of public policy in the arbitration context. This case

presents us with pudlic policy favoring a safe and drug-

free workplace as exoressed in countiess covernmental

directives and jucicial decisions. Mr. Woods was an

employee who tested positive for cocaine while on the

job, who had already taken advantage of his company's

rehabilitation-focused treatment program onlyto breach

» P — ae ie a

positions. See. eo, Georgia Power, 7° Supp. at

5 Qe 4 S29 l/rammar Lim A+ aimetata —- - “4

36 nN. 4, 536 EemMmarcing wei reins.c.eMe COUIC

potentially exsose ine empioyer to liaoility ior camages

Caused Dy a workers future Grug use). See a/so, €.9.,

Usery v. Marquette Cement Mfe-€o., 568 F.2d 902, 910

(2d Cir. 1977)(stating that employers are liable for those

hazards caused by their employees if the dangers were

foreseeable and preventable).

APPENDIX A

the after-care contract on two occasions (excusing his

failure to report the relapse only because he felt "too

embarrassed” by it), and who had refused to admit his

drug use until the test results later came back positive.

Ve conclude that compellec continued employment ci

Yoods in 2 safety-sensitive position is sufficient to

represent a plain violation of “well defined anc

cominant” public policy. The summary judgment in

favor of Exxon is properly supporied on this basis.

B. Consideration of Post-Discharge Conduct ‘

* GCIWU argues that Exxon has waived its

opjection to the arbitrator's consideration of VWoods's

post-discharge conduct by not lodging a proper

objection either at the grievance hearing or in its post-

APPENDIX A

[14] As an alternative basis for vacating the

arbitrators award, Exxon also contends that the

arbitrator below improperly considered “post-discharge

good works" as a basis for reinstating Woods. As a

result, arques Exxon, the arbitrator exceeded the scope

of his authority under the contract. Specifically, the

erditrator considered and relied upon several assertions

regarding Woods's post-discharge behavior, including

(1) his post-relapse drug and alcohol abstinence, (2) his

nearing brief. But given that arbitrators typically receive

= idence liberally and co not feel constrained dy strict

zo0lications of the rules of evidence, Exxon is not

orecluded from arguing this point on appeal in a de novo

review.

APPENDiX A

ability to hold a job, (3) his realization that he must live

“one day ata time.” In sum, the arbitrator considered

these factors in making his just cause determination and

in concluding that Woods represented “a good bet for

successful rehabilitation so that discharge is not justified

at this point in his treatment.” For its part, the Union

urges strenuously that an arbitrator may properly

condition his just cause determination on numerous

factors, even those that arise after termination.

In consicéring this issue, we are guided by our

orior r=zosnition that, to “craw its essence" from the

contract, “an [arbitrator's] award must have a basis that

is at least rationally inferable, if not obviously drawn,

——oEEEeEE——

APPENDIX A

from the letter or purpose of the collective bargaining

agreement... [T]he award must, in some logical way,

be derived from the wording or purpose of the

contract[.]" Loc. U. 59 /nt Bro. of Elec. Vers. y Green

The inquiry is straightforward should the

arDitrator Nave relied upon evidence of events that

occurred after cischarge? c@ again, the

Supreme Coun nin Misco provides important

guicence. in Afisco, the arbitrator refused to consider

evidence unknown to the Company at the time the

APPENDIXA

grievant was fired. The Court noted that the arbitrators

refusal was merely a construction of what the

agreement required when deciding discharge cases:

“an arbitrator was to look only at the evidence before the

moloyer at the time of discharge. As the arbitrator

noted, this approach was consistent with the practice

followed by other arbitrators." 484 U.S. at 39-40, 108

S.Ct. at 371. The Coun elaborated in an accompanying

Labor arbitrators have stated that the

rreciness of a discharge “must stand or fall

upon the reason given at the time of discharge,"

see, e.g., West Va. Pulp & Paper Co., 10

——~-~ °° °°

APPENDIX A

Lab.Arb. 117, 118 (1947), and arbitrators often,

but not always, confine their considerations tothe

facts known te the employer at the time of

discharae. O. Fairweather, Practice and

Works 634-635 (3rd ed. 1973).

484 U.S. at 40 n. 8, 108 S.Ct. at 371-72 n. 8.

In the instant case, Article Twenty-Six of the

2oplicable collective be-c2ining agreement provides tnat

=xxon1 "sha!! have the richt to discipline anc cischarge

employees for just cause." Arbitrator Helburn was

presented with this stipulated issue: “Was Thomas W.

————————

APPENDIX A

Woods discharged for just cause and, if not, what is the

appropriate remedy?" The first part of the question is

worded in the pasttense. It is equivalent to asking, "Did

Exxon possess just cause on June 15, 1990 to

terminate Thomas W. Woods?" Upon a careful review

of the applicable legal principles and the terms of the

parties’ collective bargaining agreement, which strips

the arbitrator of authority "to alter or add to it in any

way,” we hold that the arbitrator shouid have confined

his consicerations only to the facts as they existed atthe

time Exxon mace its termination decision.

This decision is supported by most of the

caselaw. As noted above, the Misco Court recently

APPENDIX A

affirmed an arbitrator's refusal to consider evidence not

relied upon by the company at the time of discharge.

484 U.S. at 39-40, 108 S.Ct. at 371. The Eleventh

Circuit is in accord. In De/ta Airlines, which concerned

a pilot terminated for fiying while intoxicated, the court

held that one basis for its reversal of the arbitration

board's reinstatement award was the board's im proper

consideration of the grievant's post-discharge conduct.

Specifically, the Arbitration Board, while fincing that the

pilot "did commit a cischaraeable offense," nonetheless

found an absence of just cause for the termination in

part because, "after discharge and after rejection of his

grievance," the alcoholic pilot had sought rehabilitation.

APPENDIX A

861 F.2d at 668, 669. For guidance, the Court turned to

one of its previous decisions, Butterkrust Bakeries v.

Bakery, Conf & Tobacco Wkrs., 725 F.2c 698 (11th Cir.

1984), and reasoned:

Buiterkrust holds that an arbitrator is bound to

decide just cause for discharge, ve/ non, at the

time of discharge. The arbitrators responsibility

is discharged upon his determination of the

existence of just cause. If this finding has been

mece, the arbitrator /s not authorized to employ

‘his own brand of incustrial justice" and deciceé

what post discharge good works would entitle the

properly discharged employee to rehire. While

oss sieeeanienaneneenemnniiaiil

APPENDIX A

the arbitrator . .. may be an actual or potentially

excellent personnel expert, his opinion as to what

employment opportunities one ought to have ifhe

or she, aver discharge, constructively addresses

iné problems that lead to discharge is not

pertinent to the arbitration duties. The arbitrator's

effort to impose his views on that subject upon

the parties to the arbitration amounts to his

Dasing his decision upon “his own brand of

incustrial justice.” which is forbidden. ;

“2/12 Airlines, 85

Mobil Oil Corp. v. Independent Oil Workers

Union, 679 F.2d 299 (3rd Cir. 1982), points to an

APPENDIX A

important application of the basic principle. Mobil

concerned a mentally disturbed grievant who was

terminated because he fought on the job and had a poor

work record. At the time Mobil discharged the worker,

it was unaware of his mental cisercer. The arbitrator

nevertheless concluded that “cause” should be

construed objectively and not coverned by the

subjective standard of what Mobil actually knew when it

fired the employee. The arbitrator considered an array

of information, including mecical and other evidence,

that came to light afer the discharge. The Court upheld

consideration of this evidence by the arbitrator although

it was not within Mobil’'s knowledge on the date the

APPENDIX A

grievant was fired. The Court, however, properly

Stressed its continued adherence to the rule that “an

arbitrator may not rely on an employee's suDsequent

rehabilitation to order reinstatement." /d. at 303 (citing

American Honda Motor Co. v. Local 585, UAv/ No. 79-

1231, (E.D. Pa. July 20, 1979), afd mem., 615 F.2d

1352 (3rd Cir. 1980)). The established rule was not

violated because the arbitrator considered only later-

ciscovered evidence which established the situation at

the time of discharge, not evidence of later cnanges in

In the instant case, instead, the arbitrz:or relied

heavily upon circumstances regarding Woods's post-

APPENDIX A

discharge rehabilitation efforts. Such reliance was a

departure from his authority under the contract. The

Union looks principally to a Ninth Circuit decision for the

proposition that an arbitrator can properly consider post-

cischarge conduct in reaching his decision. See /ntern.

Ass'n of Machinists v. San Diego Marine, 620 F.2d 736

(9th Cir. 1980). But that case actually favors Exxon’'s

position. In San Diego Marine, the company argued that

a reinstatement award should be vacated because the

arditrator considered evidence regercing the company's

improper Dehavior at a post-iermination grievance

meeting. On appeal, the Ninth Circuit refused to disturb

the arbitrators reinstatement award because “[uJnlike

APPENDIX A

the arbitrator in [Delta Lines, Inc. v. Teamsters Local

468,66 Cal.App.3d 960, 136 Cal.Rptr. 345 (1977)]...

this arbitrator did not state that he was reaching his

Cecision because of post-termination conduct of the

Company. Rather, the arbitrator seems tohave reached

his conclusion in light of all of the circumstances

Surrounding the discharge." /d. at 739 (emphasis

added). The arbitrator's decision was upheld because

it was not based upon the company's dost-termination

conduct

time-honored admonition that merely an “/nference that

the arbitrator may have exceeded his authority, is nota

APPENDIX A

reason for refusing to enforce the award,” Sfee/workers

v. Enterprise Wheel & Car, Corp., 363 U.S. 593, 598, 80

S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960)(emphasis

added), the arbitrator's cecision in this case goes

beyond mere surmise or intimation. He aid properly

consider Voocs’s long-time record with Exxon as a

basis for reinstatement. His principal basis for believing

Woods would benefit from a lesser sanction, however,

was Stated this way: "| am impressed that he testified

honestly and since Ais relapse he seemingly has

learnec Detter how to deal with his environment. Hehas

atiended AA meetings, held a job and learned to live

‘one day at a time,’ which he must do if he is to control

APPENDIX A

his dependancy [sic]." (emphasis added). Such heavy

reliance upon Woods's post-relapse behavior defeats

the normal presumption urging us to uphold an award

when its underlying reasoning is merely ambiguous.

363 U.S. at 598, 80 S.Ct. at 1361.

Accordingly, we conclude that the arbitrator's

award must be vacated also on this alternative ground.

CONCLUSION

On the facts before us, we conclude that

reinstatement of a worker to his safety-sensitive position

after having breached his after-care sane would

eviscerate the "well defined and dominant" public policy

underlying our nation's efforts to promote a workplace

APPENDIX A

free of drugs and alcohol. This is particularly true

concerning industries that, like petro-chemical refineries,

have the capacity to impact public safety. Moreover, the

arbitrator erred in basing his decision upon several

conclusions concerning Woods's post-termination

conduct. In exercising such reliance, Arbitrator Helburn

exceeded his proper, contracted-for authority.

The arbitrator's award reinstating Thomas Woods

was properly set aside.

AFFIRMED.

—— LLU

APPENDIX B

AGREEMENT

between

Exxon Company, U.S.A.

Refining Department

Baytown Refinery

and

Gulf Coast

industrial Workers Union

Effective April 15, 1987

APPENDIX B

COLLECTIVE BARGAINING AGREEMENT

STATE OF TEXAS

COUNTY OF HARRIS

THIS AGREEMENT is entered into by the

following parties: Exxon Company, U.S.A. (a division of

Exxon Corporation), hereinafter referred to as "Exxon

U.S.A." or "Company," and Gulf Coast Industrial

Workers Union, hereinafter referred to as "Union."

WITNESSETH:

WHEREAS, subsequent to an election conducted

by the National Labor Relations Board in Case No. 23-

RC-2088, the Board issued a Certification of

Representative dated July 18, 1963, in which it certified

APPENDIX B

the Union as the bargaining representative for a Unit of

Production and Maintenance employees as described in

the Stipulation for Certification upon Consent Election

entered into in said case on July 9 and 10, 1963,

reference being made to said Certification and

Stipulation for all purposes; and

WHEREAS, pursuant to said Certification,

Humble Oil & Refining Company recognized the Gulf

Coast Industrial Workers Union as the exclusive

bargaining representative of all employees at its

Seytown Refinery in the Production and Maintenance

Unit referred to above; and

WHEREAS, on June 1, 1966, Humble sold its

APPENDIX B

Chemical Plant facilities located at its Baytown Refinery

(known as the Baytown Chemical Plant) to Enjay

Chemical Company and Enjay hired certain employees

in the Production and Maintenance Unit who had been

employed at such Baytown facilities by Humble prior to

June 1, 1966: and

WHEREAS, on June 1, 1966, by agreement of

Humble, Enjay, and the Union, a multiemployer

bargaining unit was established; and

WHEREAS, on January 1, 1973, Humble Oil &

Refining Company and Enjay Chemical Company

merged into their parent Exxon Corporation and, at the

same time, Humble became Exxon Company, U.S.A. (a

——————— << rl lh TS

APPENDIX B

division of Exxon Corporation) and Enjay became Exxon

Chemical Company U.S.A. (an operating division of

Exxon Chemical Company, a division of Exxon

Corporation); and

WHEREAS, on May 8, 1980, Exxon, U.S.A,

Exxon Chemical Americas (formerly Exxon Chemical,

U.S.A.), and the Union agreed to discontinue the

multiemployer bargaining unit and agreed to separate

contracts;

WHEREAS, the Company and the Union desire

to enter into an agreement for the purpose of collective

bargaining concerning rates of pay, wages, hours of

work, and other conditions of employment for the

fs)

APPENDIX B

employees in the referred-to unit;

NOW, THEREFORE, itis agreed by and between

the parties as follows:

Article One

COVERAGE

A. Exxon, U.S.A. recognizes the Union as the

exclusive representative of its Production and

Maintenance employes: employed at its Baytown

__ ited tis cine tvaiaieeibion

with respect to rates of pay, wages, hours of

employment, and other conditions of employment.

B. Where the context and the circumstances

require, the gender of all words used in this document

APPENDIX B

shall include the masculine, feminine, and neuter; and

the singular of all words shall include the plural and the

plural, the singular.

Article Two

UNION AND COMPANY REPRESENTATIVES :

A. The Company and the Union will at all times

refrain from interfering in each other's choice of official

representatives.

B. Upon certification by the Union to the Company

inatithas an official representative or representatives to

represent the employees for the purpose of dealing with

the Company on grievances, the Company will

APPENDIX B

recognize and deal with such representative or

representatives. on such matters, subject to the

provisions of this Agreement.

Articie Three

Duration of Contract

A. This Agreement shall be effective April 15, 1987

and remain in force and effect through April 15, 1989

and for consecutive two-year periods thereafter unless

terminated by either party by giving written notice not

less than 60 nor more than 90 days in advance of

termination of contract.

B. The presentation of any proposal to change this

Agreement will not forestall or in anywise prevent the

APPENDIX B

automatic renewal of this Agreement. This is true

irrespective of the scope of the proposal or the time it is

presented.

C. By mutual agreement, the parties may amend

this Agreement at any time. For any Amendment to

become effective, it must be signed by the President

and Secretary of the Union and by an authorized

representative of the Company.

Article Four

FUNCTIONS OF MANAGEMENT

The Company shall retain all rights of

management resulting from the ownership of its plant

and facilities or pertaining to the operation of the

APPENDIX B:

business, except to the extent that such rights are

limited by the provisions of this Agreement.

Article Fourteen

GRIEVANCE AND

GRIEVANCE PROCEDURE

A. A grievance is the situation which exists when an

employee, a group of employees, or the Union feels

injured, treated unfairly, or aggrieved because of the

position taken by the Company or any member of

management, in regard to a maiter concerning wages,

hours, working conditions, or any part of this Contract.

The appropriate steward, upon notification of a

APPENDIX B

grievance by an aggrieved employee or employees,

shall have the right, with permission from the Steward’s

immediate supervisor, to investigate any conditions said

by the aggrieved to have caused the grievance. Inthe

event a grievance comes to the attention of the Union

and the employee(s) affected elects not to pursue the

matter, the appropriate Steward may process it in

accordance with the regular procedure. All grievances

that the Union may elect to process shall be in

accordance with the following procedures:

B. Grievance Procedure

1. First Step

The aggrieved and/or the appropriate Steward

APPENDIX B

may discuss the situation with the aggrieved’s

immediate supervisor provided the grievancc is

submitted within 30 calendar days from the date of the

occurrence.

2. Second Step

lf the immediate supervisor does not hear the

grievance within one day after the request for a

conference has been made, or satisfy it within four days

after the conference ends, the employee and/or the

Union Steward or Stewards may present the grievance

within 15 days to ihe appropriate Department Head and

then confer with the Department Head or his designated

representative.

APPENDIX B

3. Third Step

If the appropriate Department Head, or his

designated representative, does not hear the grievance

within five days after the request for a conference has

been made or satisfy it within five days after the

conference ends, the employee and/or the Union may

present the grievance within 20 days to the Refinery

Manager.

4. Fourth Step

If the Refinery Manager, or his designated

representative, does not arrange such a conference

within ten days after the request is presented, or if the

grievance is not satisfied within ten days after the

APPENDIX B

conference ends, the Union may if the grievance is

arbitrable, that is, if it involves an alleged violation of a

provision of this Agreement, proceed to the arbitration

procedure.

C. 1. In computing the number of days to arrange

a conference, or to satisfy a grievance, under this

section, Saturdays, Sundays, and holidays shall not be

counted.

2. The appropriate Stewards involved may be

present atal!l conferences and must be present after the

—_

first step. The Union may designate an individual who

is not the appropriate Steward in the event the

appropriate Steward cannot be present. The Union

—————i‘i‘( wr

APPENDIX B

Business Agent may be present at any step in the

grievance procedure except the first Step.

3. Atthe second step there may be as many as

three Union Stewards, besides the grievant, at any

conference where a grievance is heard or presented.

This number may be increased to as many as five atthe

third step.

4. The Company's answer beginning with the

Department Head level shall be in writing.

9. If the Company and the employee adjust a

Grievance, then

a. The adjustment must be consistent with this

Agreement, and

APPENDIX B

b. The Union Steward must be given an

opportunity to be present at the adjustment of an alleged

violation of the contract.

c. By mutual consent of the parties, a written

answer by the Company may be waived.

Article Fifteen

ARBITRATION

If the grievance is not adjusted under the steps

provided in Article Fourteen, and if it involves an alleged

violation of a provision of this Agreement, then upon

written demand by the Union the dispute may be

referred within 30 days following the decision of the

Manager, or his designated representative, to the

APPENDIX B

arbitration procedure. Upon receipt of a written demand

for arbitration, the Company and the Union shall meet to

reduce to writing the question to be submitted to the

Arbitrator. In the event the Union and the Company fail

to agree upon the question to be submitted prior to the

convening of the arbitration hearing, the Arbitrator shall

decide the question at the beginning of the hearing.

The Company and the Union shall each select

“One representative. These representatives shall make

a joint request to the Federal Mediation and Conciliation

Service to name a panel of five qualified arbitrators.

The representatives shall select the Arbitrator from this

panel by alternately striking names until four have been

ani

APPENDIX B

stricken. A toss of the coin shall determine whether the

Union or the Company shall strike the first name. the

remaining member of the panel shall be the Arbitrator.

No one can be an arbitrator in more than one grievance

between the parties during any 12-month period.

The Arbitrator shall have the authority only to

interpret and apply the provisions of this Agreement and

shall not have the authority to alter or add to it in any

way. The decision of the arbitrator shall be final and

binding on the Company and the Union for the duration

of this agreement.

The Company shall not be obligated to pay any

employee for work time lost in attending an arbitration

APPENDIX B

hearing. The fees and expenses of the Arbitrator shall

be borne equally by the parties.

IN cases involving termination of employment, the

Parties shall:

Meet within ten working days following appeal to

arbitration to reduce to writing the question to be

Submitted to the arbitrator.

Request a panel of arbitrators within five working

Cays after reducing the question to writing.

" Select the arbitrator within ten working days following

receipt of the panel of arbitrators.

Establish a date for the hearing within 15 working

days following notification by the arbitrator. The hearing

APPENDIX B

shall be scheduled within 90 calendar days.

* Request that the arbitrator render an answer within

60 calendar days of the close of the hearing.

af Article Twenty-Six

DISCIPLINE AND DISCHARGE

A. The first year of continuous active service by an

employee shall be considered as temporary, and

‘ermination of employment within that time may be

made at the discretion of the Company.

B. The Company shall have the right to discipline and

discharge employees for just cause. The commission of

the offenses in Schedule C shall be just cause to render

APPENDIX B

an employee liable to discharge on first offense. In the

event of discharge, the Company will give the employee

and, at his request, the Union a written statement giving

the reason or reasons for the discharge.

AMENDATORY AGREEMENT

STATE OF TEXAS

COUNTY OF HARRIS

Consistent with the agreements reached in recent

negotiations, Exxon Company, U.S.A. ("Company") and

the Gulf Coast Industrial Workers Union ("Union") have

agreed that the collective bargaining Agreement

between the parties of April 15, 1987 shall be amended

APPENDIX B

as set forth below. All terms and conditions of the

Agreement are subject to conformance with applicable

Federal laws, regulations, and standards.

Amend Article Three, DURATION OF

CONTRACT, Section A., to read as follows:

"A. This Agreement shall be effective April 15,

1989 and remain in force and effect

through April 15, 1991 and _ for

consecutive two-year periods thereafter

unless terminated by either party by giving

written notice not less than 60 days nor

more than 90 days in advance of

termination of contract."

APPENDIX B

Amend Article Fourteen, GRIEVANCE AND

GRIEVANCE PROCEDURE, Section B.2., to read as

follows:

Second Step

‘If the immediate supervisor does not

Satisfy the grievancwe within five Gays

after the request for a conference has

been made, the employee and/or the

Union Steward or Stewards may present

the grievance within 15 days to the

appropriate Department Head and then

confer with the appropriate Department

Head or his designated representative."

APPENDIX B

Amend Article Fifteen, ARBITRATION, toread as

follows:

Article Fifteen

Arbitration

"If the grievance is not adjusted under the steps

provided in Article Fourteen, and ifit involves an alleged

violation of a provision of this Agreement, then upon

written demand by the Union the dispute may be

referred within 30 days following the decision of the

Manager, or his designated representative, to the

arbitration procedure. Upon receipt of a written demand

for arbitration, the Company and Union shall meet to

reduce to writing the questicn to be submitted to the

et A. eS 1 lan

APPENDIX B

Arbitrator. In the event the Union and Company fail ‘o

agree upon the question to be submitted Prior to the

convening of the arbitration hearing, the Arbitrator shall

decide the question at the beginning of the hearing.

“The Company and the Union shall each select

one representative. These representatives shail make

a joint request to the Federal Mediation and Conciliation

Service to name a panel of five qualified arbitrators.

The representatives shall select the Arbitrator from this

panel by alternately striking names until four have been

stricken. A toss of the coin shall determine whether the

Union or the Company shall Strike the first name. The

remaining member of the panel shall be the Arbitrator.

APPENDIX B

No on can be an arbitrator in more than one grievance

between the parties during any six-month period. The

six-month period shall begin on the first day of a

hearing. An arbitrator must be selected and a hearing

scheduled within 12 months of the day a grievance is

appealed to arbitration.

"The Arbitrator shall have the authority only to

interpret and apply the provisions of this Agreement and

shall not have authority to alter or add to it in any way.

The decision of the arbitrator shall be final and binding

on the Company and the Union for the duration of this

agreement.

“The Company shall not be obligated to pay any

APPENDIX B

employee for work time lost in attending an arbitration

hearing. The fees and expenses of the Arbitrator shall

be borne equally by the parties.

"IN cases involving termination of employment,

the parties shall:

Meet within ten working days following

appeal to arbitration to reduce to writing

the question to be submitted to the

arbitrator.

Request a panel of arbitrators within five

working days after reducing the question

to writing.

Select the arbitrator within ten working

2/7

APPENDIX B

days following receipt of the panel of

arbitrators.

= Establish a date for the hearing within 15

working days following notification by the

arbitrator. The hearing shall be scheduled

within 90 calendar days.

+ Request that the arbitrator render an

answer within 60 calendar days of the

close of the hearing."

Except as amended, the collective bargaining

Agreement Detween the parties shall remain in full force

APPENDIX B

IN WITNESS WHEREOF, the parties hereto have

Caused these presents to be executed by their duly

authorized officers this the 19th Gay of May, 1989.

EXXON COMPANY, U.S.A.

By ;

/s/ S. J. Glass, Jr. Manager

Baytown Refinery

GULF COAST INDUSTRIAL

WORKERS UNION

/s/ R. L. Lucas. President

is/ G. V. McGrew, Secretary

In the Matter of

the Arbitration

between

EXXON COMPANY,

U.S.A.

Baytown, Texas

-and-

GULF COAST

INDUSTRIAL

WORKERS UNION

APPEARANCES

For the Company:

William J. Davis:

For the Union:

APPENDIX C

OPINION AND AWARD

OF THE

ARBITRATOR

|. B. Helburn

FMCS No. 91-11050

Thomas Woods Discharge

Senior Counsel

Sharon Groth;

Thomas W. Woods;

William Carlisle;

Gene Deaner, M.D.;

BACKGROUND

Most of the

Attorney

Grievant

Process Technician

Director, Drug

& Alcohol Rehabili-

tation Inst.

facts in this case have been

Stipulated to by Exxon Company, U.S.A. (Company) and

the Gulf Coast Industrial Workers Union (Union).' The

' Unless otherwise noted, this section is taken from

the parties’ stipulations, which were entered into the

record as Joint Exhibit (JX) 2.

APPENDIX C

parties have entered into a collective bargaining

Agreement, effective April 15, 1987. Article 26, Section

B of that Agreement states:

The Company shall have the right to discipline

and discharge employees for just cause. The

commission of the offenses listed in Schedule C

Shall be just cause to render an employee liable

for discharge oni first offense. In the event of

cischarge, the Company will give the employee

and, athis request, the Union a written statement

giving the reason or reasons for the discharge.

(J/4-1).

The grievant, Thomas Woods, was employed at

APPENDIX C

the Baytown Refinery as a Process Technician on April

8, 1974. In January 1987 he was suspended for 10

days for excessive tardiness. In March 1989 he

received a written warning for excessive tardiness and

unexcused absence. In April 1989 Woods received a

two-day suspension for being late to work. He testified

that all discipline was primarily the result of his

alcoholism. On February 5, 1990, in an administrative

action, Woods was plaeed on the Medical Certification

List because of absences due to disability.

In January 1988 the Company sent allemployees

of the Baytown Refinery a set of “Alcohol and Controlled

——

APPENDIX C

Substance Guidelines" which “absolutely prohibited" . .

. ‘the use, possession, distribution, sale, or being under

the influence of alcohol or controlled substances on the

premises ..." with same to be "cause for termination of

employment" (JX-2, Ex. 7). On January 17, 1990 the

Company sent represented employees a copy of the

revised Alcohol and Drug Use Policy, effective January

31. The policy included unannounced, periodic random

drug and alcohol testing for five years thereafter for

employees who participated in aftercare programs. The

aftercare programs, required for employees who

disclosed that they had been through a substance

APPENDIX C

abuse rehabilitation program, were new with the policy

and were explained in an attached pamphlet.

Woods testified that in March 1990 he entered an

in-patient treatment program for alcohoiism. Prior to

April 17, 1990 he disclosed his participation in this

program at San Jacinto Hospital to Supervisor Janet

Derauf. On or about April 17, Woods participated in a

back-to-work conference with Dr. Steven Lerman,

Derauf, first-line supervisor Joel Coy, Union Vice

President Larry Howell and representatives of the

aftercare program, administered by Human Affairs

International (HAI). During the meeting Woods signed

——— EEE

APPENDIX C

an HAI Extended Aftercare Contract and an After-Care

Plan Agreement with the Company. The Agreement

which Woods signed included the following language:

| have read Exxon’s Alcohol and Drug Use

Policy. The policy requires me to submit to

periodic alcoho! and drug testing at the

Company’s request. | understand that | will be

subject to periodic and unannounced alcohol and

drug testing for a period of 60 months... |

understand that a positive alcohol or drug test

result or refusal to submit to periodic testing is

grounds for discipline as referenced in Exxon's

APPENDIX C

Alcohol and Drug Use Policy (JX-2, Ex. X).

The policy effective January 31 stated the “use. . . of

illicit or unprescribed controlled drugs . . . is strictly

prohibited and is grounds for termination" (JX-2, Ex. 8).

Woods returned to work on or about April 17. A

random drug/alcohol screen (urinalysis) conducted on

May 22, 1990 was negative. A random drug/alcohol

screen (urinalysis) conducted on June 5, 1990 was

positive for cocaine. The parties do not dispute the

testing process used, the chain of custody or the

positive findings, noting that the findings do not indicate

the degree of impairment, if any, the amount of the drug

APPENDIX C

used or the time when the drug was used.

Woods testified that while he had experienced

drugs as a teenager and had used drugs a few times

while at Exxon, only alcohol became a problem. He had

been clean and sober for over three months and had

been attending daily Alcoholics Anonymous meetings —

over 90 in 90 days. He believes that he was under

extensive pressure, in part because of his upcoming

marriage. Late on a Saturday afternoon an

acquaintance stopped by his house when Woods was

feeling blue and he allowed himself to be talked into

using cocaine. He did not call his supervisor, counselor

APPENDIX C

or the back-up before using drugs or after, as he had

been instructed.

Woods was scheduled for overtime the following

Monday, but he called and refused it. He went to work

on Tuesday and was tested that day. He worked until

Friday, when he was told of the positive finding. The

parties stipulated that the positive finding was reported

to the Company on June 8. Ata June 14 meeting which

included Woods, Derauf, Coy and Union President Ken

Evans, the grievant admitted using cocaine on Saturday,

June 2 and early in the morning of June 3. On June 15,

Woods was terminated effective that day, “as a result of

APPENDIX C

your violation of the Alcohol and Drug Use Policy" (JX-2,

Ex. 12).

The discharge was grieved in writing that day,

heard by the Plant Manager on June 25, after the first

two steps of the grievance procedure had been waived,

and denied on July 18, 1990. The grievance was

appealed to arbitration on July 24, with the undersigned

selected as arbitrator from a Federal Mediation and

Conciliation Service panel. The grievance was heard in

Baytown, Texas on July 12, 1990 (sic). The parties

Stipulated that the grievance was properly before the

arbitrator. Management relied on the stipulations

APPENDIX C

presented by the parties and presented no witnesses.

Those who testified for the Union, including the grievant,

were affirmed before testifying and made available for

cross-examination. [The Union brief was received on

August 16. The Company brief was received on August

19, 1991, the day on which the record was closed.

ISSUE

The stipulated issue is

Was Thomas W. Woods discharged for just

cause and, if not, what is the appropriate

remedy?

APPENDIX C

COMPANY POSITION

The discharge was for just cause for reasons

Summarized below.

1. The case must be viewed in the context of the

ever-increasing nationwide battle against the drug

problem, the requirements on the Company to follow

controlled substance regulations of the Department of

Transportation, the Texas Department of Public Safety

and the Texas Railroad Commission and the nature of

the hazardous work performed in refineries, as noted by

Arbitrator Grimes in Marathon Petroleum Co., 89 LA

716, 722 (1987).

APPENDIX C

2. In 1983 the Company provided alcohol and

drug awareness counseling to employees and

confidential assistance and counseling in securing

treatment for alcohol and/or drug abuse. The 1988

Guidelines added testing for cause, re-emphasized

medical treatment available for those with problems and

made clear that a request of help or involvement in

rehabilitation would not jeopardize employment. The

revised Policy effective January 31, 1990 added the

after-care program requirement following rehabilitation.

Thatincludes unannounced, random drug testing for five

years, with a positive finding grounds for discipline,

APPENDIX C

including termination. After-care, underwritten by the

Company, involves treatment programs tailored to each

individual employee.

3. Following rehabilitation, Woods entered into

an after-care program and acknowledged his

responsibility to follow prescribed counseling and

continuing care programs. Also, he acknowledged that

he read and understood the Company policy, including

random drug testing and the consequences ofa positive

finding. Woods knew the rules and the results of

oreaking them.

4. He violated the rules Dy failing to fulfill the first

APPENDIX C

condition of his after-care contract, which was to

maintain total abstinence from drugs and alcohol. When

stress endangered his sobriety, he neglected to call his

counselor or supervisor, as he had committed to do.

After his relapse, he did not inform his counselor, as he

also was committed to do. Rather, he dishonestly

concealed his cocaine use until confronted with the

findings of the drug screen.

5. The Company's carefully drafted and thought-

out after-care program evidences a serious commitment

to rehabilitating dependent employees. The program

has commitments from the Company, HAI, and

APPENDIX C

particularly the affected employee. The program

recognizes that relapses occur, and instructs the

employee what to do in such cases. If followed , the

instructions lead to a second chance. [if not, the

employee may be terminated. The Union's witness

testified that the employee should " stick to his contract

to the letter’ “ and that serious consequences should

follow if the contract is broken (Brief, p. 12). Woods

oroke his contract.

6. In arecent case (FMCS #91-07507) involving

Exxon Chemical Americas and the Union, Arbitrator

Samuel J. Nicholas, Jr. upheld the discharge of an

APPENDIX C

employee who had tested positive for cocaine while in

an after-care program. The case is very similar to the

instant case.

UNION POSITION

The Union believes that the discharge was not for

just cause and that Woods should be reinstated with full

back pay and allowances, plus interest. Reasons

therefore are summarized below.

1. The grievant has not used drugs or alcohol

since the discharge, holds a responsible job and is now

subject to random drug testing and has learned how to

stay committed to his treatment. After using cocaine,

APPENDIX C

Woods responsibly called the Company and refused an

overtime opportunity. He then worked the rest of the

week without showing signs of impairment. He admitted

the mistakes of using drugs and of not telling his

supervisor or counselor of his relapse, fearing discipline,

but testified that he would have eventually confessed as

this was something that he needed to face up to.

Woods further noted that he had been a good employee

for many years, had made a mistake, but had learned

and become better for it. He has not denied his

problem.

2. The arbitrator should consider Woods’ long

APPENDIX C

service, mostly problem-free, and his obvious

commitment to rehabilitation. In Westinghouse Electric

Corp., 95 LA 881 (Arb. Talarico, 1990), a 24-year

employee servicing customers in nuclear and fossil fuel

plants developed a cocaine addiction. After

rehabilitation he further used cocaine after being given

narcotic drugs following dental surgery. Termination

followed his failure to report for several days. The

arbitrator reinstated the grievant due to his long,

productive work history, his completion of an in-patient

rehabilitation program, passage of four random drug

screens and attendance at AA and NA meetings. The

ew. aes ae

APPENDIX C

case is similar to the instant case, wherein Woods has

shown commitment to his recovery.

3. The Company has made a commitment to

battling alcohol and drug abuse, as evidenced by the

various policies and guidelines. The focus is on

treatment and rehabilitation. Policies are written to

provide for termination only as a final option after other

forms of discipline do not work. The policy does not

constitute a last chance agreement. Arbitrator George

Roumel, in City of Pontiac, 97 LA 780 (1989), wrote that

last chance agreements do not eliminate just cause as

the relevant standard. The Pontiac last chance

APPENDIX C

agreement was similar to that in the instant case except

that it precluded a range of punishment.

4. Arbitrator Nicholas’ award involved a different

company, bargaining unit and Agreement. Also, that

grievant was discharged for a relapse following

treatment for cocaine addiction. He would not admit his

recent cocaine use despite the positive drug screen.

Arbitrator Nicholas did not find the grievant credible.

The case is unlike the instant case, where Woods

admitted his mistake and has learned from it.

5. Dr. Degner, an expert in the practice of

addictive medicine, testified that relapses will occur

pinch RT Ne Saab AB Hpi en in Wh ISOS RAS BD RS

APPENDIX C

during the rehabilitation process but that relapses donot

invalidate prior treatment and can be a therapeutic part

of the process and a learning experience for the patient.

One relapse does not mean that an individual will not be

able to control dependency (sic), particularly when the

problem is admitted. Employment is an important

aspect ofthe rehabilitation process; a punitive approach

will be disfunctional (sic). Much of Dr. Degner’s

testimony is consistent with material in Dennenberg and

Dennenberg, Alcohol and Drugs: Issues in the

Workplace, BNA, 1983.

6. Woods had no performance problems after

APPENDIX C

rehabilitation. Bill Carlisle testified that Woods was a

good employee, whom he would work with again.

Woods has tried to save his job, but had one relapse, for

which he was terminatec. The discipline was overly

harsh and not for just cause, and sends the wrong

signal to the work force.

DISCUSSION

This case does not involve a question of the

accuracy of the allegations. Woods, by his own

admission and the unchallenged drug screen results, is

guilty of failing to remain drug and alcohol free as

required by the Company's “Alcohol and Drug Use

a eeeneeemeneniinianialll

APPENDIX C

Policy" and the After-Care Plan Agreement that he

signed and which he acknowledged that he understood.

His relapse may have been the consequence ofa failure

to follow the commitment in the after-care contract to

inform his HAI counselor and/or his supervisor if stress

was endangering his sobriety. Even if that was not the

case, Woods clearly ignored the commitment to inform

his HAI aftercare clinician and/or his supervisor

immediately after his relapse.

There can be no question that the Company had

just cause to discipline Woods. But, this is not a case

where discharge should automatically follow the

APPENDIX C

infraction, or if it does, where the discharge must be

upheld by the arbitrator.

Discharge is appropriately upheld where the allegation

is proven and the labor agreement removes from the

arbitrator the discretion to assess the appropriateness

of the discipline. Summary discharge is appropriate for

some infractions which, by their nature, make continued

employment a greater risk than the employer should be

asked to bear. Theft is one example. Discharge is

appropriate where the employer can demonstrate the

previous use of progressive/corrective discipline to no

avail. And, discharge is appropriate where the employer

——-

hint ha. “iy te hl ieee ee et eh Min

APPENDIX C

can show that despite the lack of progressive/corrective

discipline, the evidence indicates that reinstatement with

a lesser penalty would not likely achieve positive results.

In the instant case, the Labor Agreement gives

the arbitrator latitude to assess just cause. Violation of

the “Alcohol and Drug Use Policy” will be “grounds for

termination” (JX-2, Ex.8). The After-Care Plan

Agreement does not mandate termination for a violation.

Thus, the relevant documents do not limit the arbitrator

to simply a consideration of guilt or innocence.

Prior discipline give Woods was related to his

alcoholism. If the source of the problem has been

APPENDIX C

successfully attacked, then discharge makes no sense

from a just cause perspective, despite previous

discipline. If Woods, despite extensive treatment, is not

judged to be a good bet for successful rehabilitation,

discharge is appropriate regardless of his past record.

| view Woods as a good bet for successful

rehabilitation so that discharge is not justified at this

point in his treatment. Dr. Degner testified to a well-

known fact — that relapses are an unfortunate reality in

the treatment of chemical dependency. The attraction

to alcohol or drugs is so strong that the road to total

control and abstinence may have detours. Treating

APPENDIX C

each detour or relapse as cause for discharge may be

counter-productive to the Company's sincere attempt to

help employees fight chemical dependency.

| am not suggesting that no first-time relapse

should bring discharge. Arbitrator Nicholas

appropriately upheld a discharge in the case submitted

by the Company -with its brief. That grievant, who had

undergone treatment for addiction to cocaine, lied about

his cocaine use after rehabilitation. If after all the

grievant had gone through he was not at the point of

admitting a continuing problem, then prospects for

achieving control of his dependency were slim. He was

APPENDIX C

not a good bet for reinstatement.

On the other hand, Woods, despite his admitted

rnistake, also owned up to his problem. | am impressed

that he testified honestly and that since his relapse he

seemingly has learned better how to deal with his

environment. He has attended AA meetings, held a job

and learned to live “one day at a time," which he must

do is he is to control his dependency. Furthermore, his

record with the Company was a good one for most of his

tenure prior to rehabilitation and for the almost two

months between his return and the termination.

Based on the record, Woods appears to be an

APPENDIX C

individual who will benefit from progressive/corrective

discipline. But, mindful of his violations and of Dr.

Degner's testimony that a violation of the after-care

contract should bring serious consequences, only

conditional reinstatement is viewed as an appropriate

alternative to the discharge. No back pay is provided, in

effect leaving Woods with a suspension of over a year.

Surely this alternative discipline should be sufficient to

impress upon Woods the necessity of avoiding future

relapses and to send a signal to other employees that

relapses during after-care will bring serious

consequences.

APPENDIX C

AWARD

Thomas Woods was not discharged for just

cause. He is to be reinstated without back pay to his

former position. His reinstatement is conditioned upon

receiving negative findings from an alcohol-drug screen.

The grievant will present himself at the appropriate

location for such a screen as soon as possible after

being advised of this Award. The period between

Woods’ termination and reinstatement will count as part

of the 60 months during which he may be subject to

periodic and unannounced alcohol and drug testing.

The arbitrator will retain jurisdiction of the case for the

APPENDIX C

sole purpose of clarification of the Award, if necessary.

/s/|. B. Helburn Arbitrator

Austin, Texas

August 23, 1991

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

GULF COAST INDUS- )

TRIAL WORKERS )

UNION, )

Plaintiff, )

)

versus ) CIVIL ACTION H-91-2778

)

EXXON COMPANY, )

USA, )

Defendant. )

FINAL JUDGMENT

. Gulf Coast Industrial Workers Union takes

nothing on its claim against Exxon Company

USA

2. On Exxon’s counterclaim, the award of the

APPENDIX D

arbitrator is vacated.

Signed on December 11, 1991. at Houston,

Texas.

Is/ Lynn N. Hughes

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.