Amicus Curiae Brief — Eastern Associated Coal Corp. v. Mine Workers

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JUL 14 2000

No. 99-1038 i

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In the Supreme Court of the Bnited States

A LLL

EASTERN ASSOCIATED COAL CORPORATION,

PETITIONER

Vv.

UNITED MINE WORKERS OF AMERICA, DISTRICT 17,

ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING AFFIRMANCE

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

LAWRENCE G. WALLACE

Deputy Solicitor General

NANCY E. MCFADDEN MALCOLM L. STEWART

General Counsel Assistant to the Solicitor

PAUL M. GEIER General

Assistant General Counsel WILLIAM KANTER

PETER J. PLOCKI MARK W. PENNAK

Senior Attorney Attorneys

Department of Department of Justice

Transportation

Washington, D.C. 20530-0001

(202) 514-2217

Washington, D.C. 20590

QUESTION PRESENTED

Whether the arbitrator’s award in this case, which

ordered reinstatement (after a three-month suspension)

of a commercial truck driver who had twice tested

positive for marijuana, should be set aside as contrary

to public policy.

(I)

TABLE OF CONTENTS

Page

Interest of the United States 1

Statement 2

Summary of argument 9

Argument 11

A. So long as Smith complies with the Department

of Transportation’s rehabilitation requirements,

his reinstatement to a safety-sensitive position is

consistent with “public policy” as reflected in

the Department’s regulations 13

B. The courts below correctly declined to exercise

de novo review over the arbitrator’s decision ............. 24

Conclusion 30

TABLE OF AUTHORITIES

Cases:

Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974) 29

United Paperworkers Int'l Union v. Misco, 484 U.S.

29 (1987) 12, 25, 26, 27

United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56

(1981) 28

United Steelworkers of America v. American Mfg.

Co., 363 U.S. 564 (1960) 24, 29

United Steelworkers of America v. Enterprise

Wheel & Car Corp., 363 U.S. 598 (1960) .......... 24, 25, 27, 28

United Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960) .......c.0000 24, 25, 26, 29

Statutes and regulations:

Omnibus Transportation Employee Testing Act of

1991, Pub. L. No. 102-143, Tit. V, 105 Stat. 952 ............... 2

§ 2(3), 105 Stat. 953 2,14

§ 2(4), 105 Stat. 953 2,14

§ 2(5), 105 Stat. 953 2

(IID)

IV

Statutes and regulations—Continued: Page

§ 2(7), 105 Stat. 953 2,14

Labor-Management Relations Act of 1947, 29 U.S.C.

141 et seq.:

29 U.S.C. 171(a) 6, 15, 20

29 U.S.C. 173(d) 6, 29

49 U.S.C. 31806(b)(1)(A) (1994 & Supp. IIT 1997) ..........0000 2

49 U.S.C. 31306(e) 8,14

49 U.S.C. 31306(f) 3,19

49 U.S.C. 31810(b)(1)(A) 3, 19

49 U.S.C. 45108(c)(1) 19

49 U.S.C. 45108(c)(2) | 19

49 C.F.R.:

Pt. 382 4

Section 382.213(a) 14

Section 382.215 14

Section 382.501 15, 17

Section 382.501(a) 3

Section 382.501(b) 8

Section 382.503 17

Section 382.507 3,17

Sections 382.601-382.605 3

Section 382.605 4, 5, 10, 17, 18, 20

Section 382.605(b) ............. 4,15

Section 382.605(c)(1) 4, 15, 16

Section 382.605(c)(2) 4

Section 382.605(c)(2)(i) 4,15

Section 382.605(c)(2)(ii) 4, 15, 16

Section 382.605(d) 4

Pt. 383:

Section 383.5 21

Section 383.51 5

Section 383.51(b)(2)(i)-(ii) 8,5

Section 383.51(b)(2)(v) 5

Section 383.51(b)(8)(i) 8

Section 383.51(c) 5

Section 383.51(c)(2)(i) 21

Miscellaneous:

Page

57 Fed. Reg. (1992):

p. 59,585 (proposed 49 C.F.R. 382.1107(a)(2)i)) .......... 5, 21

pp. 59,3938-59,394 14

p. 59,396 14

59 Fed. Reg. (1994):

p. 7498 5, 21

p. 7502 6, 15, 20

p. 7503 5, 15

In the Supreme Court of the United States

No. 99-1038

EASTERN ASSOCIATED COAL CORPORATION,

PETITIONER

v.

UNITED MINE WORKERS OF AMERICA, DISTRICT 17,

ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING AFFIRMANCE

INTEREST OF THE UNITED STATES

This case presents the question whether a federal

court should set aside, as contrary to public policy, a

labor arbitrator’s decision ordering reinstatement

(after a three-month suspension) of a commercial truck

driver who had twice tested positive for marijuana.

Congress directed the United States Department of

Transportation to promulgate regulations governing

the use of alcohol and illegal drugs by persons employed

in the transportation industry, including commercial

truck drivers. The regulations promulgated pursuant

to that statutory directive address, inter alia, the cate-

gories of persons subject to alcohol and drug testing,

the manner in which those tests will be conducted, and

the consequences that follow from a failed test. The

United States has a substantial interest in ensuring

(1)

2

that judicial review of arbitral awards under collective

bargaining agreements does not undermine either

DOT’s regulations, or the federal labor policy favoring

arbitration as the method for finally resolving disputes

under collective bargaining agreements.

STATEMENT

1. In the Omnibus Transportation Employee Testing

Act of 1991 (Testing Act), Pub. L. No. 102-148, Tit. V,

105 Stat. 952, Congress addressed the threat to public

safety posed by drug and alcohol abuse on the part of

individuals employed in the transportation industry.

The Testing Act contains congressional findings that,

inter alia, “the greatest efforts must be expended to

eliminate the abuse of alcohol and use of illegal drugs,

whether on duty or off duty, by those individuals who

are involved in the operation of aircraft, trains, trucks,

and buses”; “the use of alcohol and illegal drugs has

been demonstrated to affect significantly the perform-

ance of individuals, and has been proven to have been a

critical factor in transportation accidents”; “the most

effective deterrent to abuse of alcohol and use of illegal -

drugs is increased testing, including random testing”;

and “rehabilitation is a critical component of any testing

program for abuse of alcohol or use of illegal drugs, and

should be made available to individuals, as appropri-

ate.” Testing Act § 2(8), (4), (5) and (7), 105 Stat. 953.

The Testing Act in its current form states that “[iJn

the interest of commercial motor vehicle safety, the

Secretary of Transportation shall prescribe regulations

* * * that establish a program requiring motor

carriers to conduct preemployment, reasonable suspi-

cion, random, and post-accident testing of operators of

commercial motor vehicles for the use of alcohol or a

controlled substance.” 49 U.S.C. 31306(b)(1)(A) (1994 &

Supp. III 1997). The Testing Act further provides that

8

the Secretary “shall prescribe regulations establishing

requirements for rehabilitation programs that provide

for the identification and opportunity for treatment of

operators of commercial motor vehicles who are found

to have used alcohol or a controlled substance in vio-

lation of law or a Government regulation.” 49 U.S.C.

31306(e). The Act states in addition that the Secretary

“shall decide on appropriate sanctions for a commercial

motor vehicle operator who is found, based on tests

conducted and confirmed under this section, to have

used alcohol or a controlled substance in violation of law

or a Government regulation but who is not under the

influence of alcohol or a controlled substance as pro-

vided in this chapter.” 49 U.S.C. 31806(f).!

2. In response to, inter alia, the statutory directives

described above, the Department of Transportation

(DOT) has promulgated detailed regulations that re-

quire drug testing of a wide range of employees in the

transportation industry. With respect to commercial

drivers, the regulations state that “[e]xcept as provided

in subpart F of this part [49 C.F.R. 382.601-382.605], no

driver shall perform safety-sensitive functions, includ-

ing driving a commercial motor vehicle, if the driver has

engaged in” prohibited drug use. 49 C.F.R. 382.501(a);

see also 49 C.F.R. 382.501(b) (“No employer shall per-

mit any driver to perform safety-sensitive functions,

including driving a commercial motor vehicle, if the

employer has determined that the driver has violated

this section.”); 49 C.F.R. 382.507 (“Any employer or

driver who violates the requirements of this part shall

' Federal law mandates disqualification from commercial driv-

ing for at least one year of any person who is convicted of operat-

ing a commercial motor vehicle while under the influence of alcohol

or a controlled substance. 49 U.S.C. 31310(b)(1)(A); 49 C.F.R.

383.51(b)(2)(i)-(ii) and (8){i).

be subject to the penalty provisions of 49 U.S.C. section

521(b).”). Thus, if an employee tests positive for con-

trolled substances, both the employer and the employee

are subject to penalties if the employee thereafter per-

forms a safety-sensitive function without first comply-

ing with the requirements of Subpart F of 49 C.F.R.

Part 382.

In Subpart F, and Section 382.605 in particular, DOT

established rehabilitation requirements that must be

satisfied before an employee who has tested positive for

a controlled substance may return to a safety-sensitive

position. First, the driver “shall be evaluated by a sub-

stance abuse professional [SAP] who shall determine

what assistance, if any, the employee needs in resolving

problems associated with * * * controlled substances

use.” 49 C.F.R. 382.605(b).2 Second, “[bJefore a driver

returns to duty requiring the performance of a safety-

sensitive function after engaging in conduct prohibited

by subpart B of this part, the driver shall undergo a

return-to-duty * * * controlled substances test with a

verified negative result.” 49 C.F.R. 382.605(c)(1).

Finally, if the driver has been “identified [by the SAP]

as needing assistance in resolving problems associated

with * * * controlled substances use,” 49 C.F.R.

382.605(c)(2), the SAP must determine that the driver

has followed the prescribed rehabilitation program, 49

C.F.R. 382.605(c)(2)(i), and the driver must be subject

to at least six unannounced drug tests during the 12

months following his return to duty, 49 C.F.R.

382.605(c)(2)(ii).

2 The regulations provide that “[t]he choice of substance abuse

professional and assignment of costs shall be made in accordance

with employer/driver agreements and employer policies.” 49

C.F.R. 382.605(d).

5

The DOT regulations do not establish any additional

prerequisites to reinstatement for a driver who fails a

drug or alcohol test on two or more occasions. A pro-

posed rule issued by DOT for comment in December

1992 included a provision stating that “[a] driver who,

during any 3-year period, is found to have a verified

positive controlled substances test result twice in

separate incidents, is prohibited from driving any com-

mercial motor vehicle * * * for a period of 60

consecutive days.” 57 Fed. Reg. 59,585 (1992) (pro-

posed 49 C.F.R. 382.1107(a)(2)(i)). After considering

public comments on the proposed regulations, however,

the agency declined to adopt that disqualification rule.

59 Fed. Reg. 7493 (1994). The agency made ¢lear that

“(t]he only driving prohibition period for a controlled

substances violation is similar to that for aleohol—

completion of rehabilitation requirements and a return-

to-duty test with a negative result.” Ibid

So long as a commercial driver satisfies the reha-

bilitation requirements of 49 C.F.R. 382.605, he is eligi-

ble under the regulations to perform safety-sensitive

duties. See 59 Fed. Reg. at 7498; id. at 7508. The

preamble to the regulations makes clear, however, that

“{cJompliance with the prescribed treatment and pass-

ing the test(s) will not guarantee a right of reemploy-

ment.” Ibid. Consistent with the DOT regulations, an

employer may decline to offer rehabilitation to an

8 DOT regulations require disqualification, for specified

periods, of individuals convicted of certain offenses. See 49 C.F.R.

383.51. Those include operating a commercial motor vehicle while

under the influence of alcohol or controlled substances, see 49

C.F.R. 383.51(b)(2)(i)-(ii); use of a commercial motor vehicle in the

commission of a drug felony, see 49 C.F.R. 383.51(b)(2)(v); and the

commission of two or more serious traffic violations within a three-

year period while operating a commercial motor vehicle, see 49

C.F.R. 383.51(c).

6

employee who tests positive and may instead discharge

every such worker. The 1994 preamble “encourage[s]

those employers who can afford to provide

rehabilitation to do so through established health insur-

ance programs, since it helps their drivers, benefits

morale, is often cost-effective and ultimately contrib-

utes to the success of both their business and their

testing programs.” Jd. at 7502. The agency has ex-

pressly declined, however, “to mandate employer-pro-

vided rehabilitation,” deciding instead that the matter

“should be left to management/driver negotiation.”

Ibid. |

3. The Labor-Management Relations Act of 1947

(LMRA) states the national policy that “sound and

stable industrial peace and the advancement of the

general welfare, health, and safety of the Nation and of

the best interests of employers and employees can most _

satisfactorily be secured by the settlement of issues

between employers and employees through the pro-

cesses of conference and collective bargaining between

employers and the representatives of their employees.”

29 U.S.C. 171(a). The LMRA further states that

“(final adjustment by a method agreed upon by the

parties is declared to be the desirable method for

settlement of grievance disputes arising over the

application or interpretation of an existing collective-

bargaining agreement.” 29 U.S.C. 173(d).

4. James Smith, a drilling operator for petitioner

Eastern Associated Coal Corporation, applied for a

position as a Mobile Equipment Operator. Because the

new position required a commercial driver’s license,

Smith was subject to alcohol and drug testing under the

DOT regulations. In March 1996 Smith tested positive

for marijuana. Petitioner sought to discharge him, but

Smith grieved his discharge and the arbitrator ordered

him reinstated, subject to a suspension of 30 days

7

without pay and the requirement that he participate in

a substance abuse program. Smith passed four drug

tests between April 1996 and J anuary 1997, but in June

1997 he again tested positive for marijuana. On July 14,

1997, petitioner suspended Smith with the intent to

discharge him. Smith and his union (the respondent in

this case) contested the discharge. Pet. App. 6a-8a, 24a-

26a.

The arbitrator in the second proceeding stated that

“[w]hile [Smith] has been a very good employee during

his 17 years with the company, it is obvious he has not

been rehabilitated by the opportunity provided by the

company’s employee assistance program or the earlier

arbitration.” Pet. App. 26a. The arbitrator stated as

well that “drugs have a negative impact on job per-

formance, safety and company liability.” Id. at 28a.

The arbitrator nevertheless ordered Smith rein-

stated, subject to various conditions. He explained:

[Smith] made a very personal appeal under oath to

the arbitrator concerning a personal/family problem

which caused this one time lapse in drug usage. The

arbitrator found this testimony creditable. If the

arbitrator was misled by [Smith], the arbitrator is

confident that [Smith] will make another misstep

with drug use and be caught. The remedy provided

here will assure that the company and union will not

be required to use arbitration again for [Smith]

where drugs are involved.

Pet. App. 28a. Smith’s reinstatement was made subject

to the conditions that (1) he would not be paid for the

period of his suspension, which would last until October

20, 1997;* (2) the prior arbitral award would be

* The date of the arbitrator’s decision was August 1, 1997. Pet.

App. 29a. Because Smith was suspended by petitioner on July 14,

8

“reinstated”; (3) Smith would reimburse the company

and the union for the arbitrators’ bills in both arbitral

proceedings; (4) Smith would provide a signed, undated

letter of resignation that petitioner may accept if Smith

fails a drug test during the next five years; and (5)

Smith would be subject to random drug testing during

the period of his suspension, and petitioner could accept

his resignation if he refused to take a drug test. Jd. at

29a.

5. Petitioner filed suit in federal district court seek-

ing vacatur of the arbitrator’s award. The district court

granted respondent’s motion for summary judgment.

Pet. App. 5a-2la. The court found that the arbitrator’s

award was “rationally inferable” from the applicable

collective bargaining agreement. Jd. at 16a. The court

also rejected petitioner’s contention that the award

should be vacated as contrary to public policy. Jd. at

17a-2la. The district court acknowledged that “[t]here

is a plenitude of positive law to support the existence of

a well defined and dominant public policy against the

performance of safety sensitive jobs by employees

under the influence of drugs.” Jd. at 18a. It held, how-

ever, that the award in this case did not violate that

public policy. The court explained:

[Petitioner] argues that the public policy embodied

in the DOT Regulations is sufficiently well defined

and dominant to support vacation of Arbitrator

Barrett’s award. There is no question that the DOT

Regulations relied upon by [petitioner] articulate a

well defined and dominant public policy against drug

use by persons employed as commercial motor

vehicle drivers. Nevertheless, the DOT Regulations

1997 (id. at 24a), the effect of the arbitrator’s decision was that

Smith was suspended without pay for slightly more than three

months. :

9

do not express an explicit, well defined public policy

permanently enjoining the employment of commer-

cial motor vehicle drivers who test positive for drug

use. Specifically, the DOT Regulations do not re-

quire that employees who test positive for drug use

be automatically discharged. Here, the arbitrator

ordered reinstatement of Mr. Smith, subject, how-

ever, to several conditions, including continued ran-

dom drug testing and mandatory resignation in the

event of a future positive drug test. Because the

DOT Regulations do not make it illegal to reinstate

employees who test positive for drug use, it cannot

be said that the DOT Regulations “specifically mili-

tate against the relief ordered by the arbitrator” in

this case. Consequently, the public policy exception

does not apply inasmuch as the arbitrator’s award is

consistent with the DOT Regulations.

Id. at 20a-21a (citation and footnote omitted).

6. The court of appeals affirmed. Pet. App. la-4a.

The court simply recounted the facts and the proce-

dural history of the case and stated that it “affirm[ed]

on the reasoning of the district court.” Id. at 4a.

SUMMARY OF ARGUMENT

1. Pursuant to statutory authority, the Department

of Transportation (DOT) has promulgated regulations

addressing the dangers posed by employee drug use

within the transportation industry. Those regulations

mandate drug testing of employees who perform

safety-sensitive functions, and they establish prerequi-

sites to the reinstatement of employees who test posi-

tive. A worker who tests positive must be immediately

removed from safety-sensitive duties and may not

resume such duties until he has been evaluated by a

substance abuse professional (SAP), has successfully

completed any program of rehabilitation that the SAP

10

prescribes, and has passed a return-to-duty drug test.

DOT has made clear that employers are free to impose

additional sanctions (including outright discharge) on

employees who test positive, subject to any indepen- i

dent constraints on management discretion that the ;

employer has voluntarily assumed. 4

In our view, the arbitrator’s reinstatement order in

this case is most plausibly construed to be contingent

upon Smith’s compliance with the pertinent DOT regu-

lations—and, in particular, on his successful completion —

of any rehabilitation program that the SAP prescribes.

So construed, the award is fully consistent with federal

policy and should not be set aside by a federal court. If

an employee satisfies the prerequisites to reinstate-

ment established by the responsible executive agency,

a federal court cannot properly refuse enforcement of

an arbitrator’s reinstatement order based on the court’s

belief that the conditions set forth in the regulations are

insufficient to protect the public safety.

The fact that Smith failed two drug tests within a 16-

month period does not significantly alter the analysis.

Under a proposed regulatory provision put forth for

public comment in December 1992, any driver who

failed two drug tests within a three-year period would

have been prohibited from operating a commercial

motor vehicle for a period of 60 days. Even if that

proposed rule had been adopted, the arbitral award in

the instant case would be valid, since under the

arbitrator’s decision Smith was suspended for slightly

more than three months. After considering public com-

ments, DOT declined to mandate any specific period of

disqualification even for recidivist drug users, conclud-

ing instead to entrust decisions regarding repeat

offenders to private ordering and the sound judgment

of arbitrators, subject to the rehabilitation require-

ments set forth in 49 C.F.R. 382.605. Smith’s status as

11

a recidivist is surely relevant in determining the appro-

priate response to his positive drug test. But the text

and history of the pertinent DOT regulations are

inconsistent with any contention that discharge is the

only permissible sanction for a recidivist drug offender.

2 The courts below correctly deferred to the arbi-

trator’s judgment rather than attempting a de novo de-

termination of the appropriate sanction for Smith’s mis-

conduct. The arbitrator’s specialized training and

repeated exposure to workplace disputes gives him a

significant advantage (as compared to a federal judge)

in resolving the pertinent remedial issues, notwith-

standing the fact that the consequences of the arbitra-

tor’s decision may be felt beyond the employer’s place

of business. That is particularly so in light of the arbi-

trator’s ability to see and hear the witnesses firsthand.

A deferential standard also helps to ensure that the ar-

bitrator’s decision will be treated when issued as essen-

tially final, thereby allowing the parties to put the con-

troversy behind them. Finally, enforcing the parties’

agreement to entrust workplace disputes to the arbi-

trator serves the national interest in industrial peace,

since the employer’s agreement to arbitrate has histori-

cally served as the quid pro quo for the union’s promise

not to strike.

ARGUMENT

The arbitrator’s decision in this case rests on three

subsidiary propositions. First, the arbitrator construed

the collective bargaining agreement as authorizing but

not mandating discharge as a sanction for employee

drug use. Second, the arbitrator construed his own re-

medial powers expansively. While framing the question

before him as whether the company had established

“just cause” for Smith’s discharge, Pet. App. 24a, the

arbitrator evidently (though implicitly) understood his

12

task to be that of determining, not whether discharge

was a permissible sanction under the terms of the

agreement, but whether discharge was the fairest or

most appropriate sanction under all the facts and

circumstances. In essence, the arbitrator understood

the agreement as delegating to him the sort of discreti-

onary authority that would otherwise be exercised by

company management. Third, the arbitrator consid-

ered all the relevant facts and concluded that a three-

month suspension without pay, subject to various

conditions, was a more appropriate punishment than

outright discharge.

At least in this Court, petitioner does not assert that

any of those arbitral rulings is wrong as a matter of

contract interpretation. Petitioner does not, that is,

contend that the collective bargaining agreement either

(1) mandates the discharge of every covered employee

who is found to have used marijuana, (2) gives manage-

ment unreviewable discretion to determine the appro-

priate sanction for an individual who tests positive, or

(3) precludes reinstatement under the facts and circum-

stances of this case. Rather, petitioner’s argument is

that the arbitral award should be vacated as contrary to

public policy even assuming that the award is faithful to

the intent of the contracting parties.

For the reasons that follow, that argument lacks

merit. This Court has emphasized that judicial author-

ity to vacate an arbitral award as contrary to public

policy “is limited to situations where the contract as

interpreted [by the arbitrator] would violate some

explicit public policy that is well defined and dominant,

and is to be ascertained by reference to the laws and

legal precedents and not from general considerations of

supposed public interests.” United Paperworkers Int'l

Union v. Misco, 484 U.S. 29, 43 (1987) (internal quota-

tion marks omitted). The Department of Transporta-

13

tion (DOT) has promulgated detailed regulations that,

inter alia, define the prerequisites that a commercial

driver must satisfy in order to resume safety-sensitive

duties after testing positive for illegal drugs. So long as

those requirements are satisfied, DOT’s regulations

leave with the employer the ultimate decision whether

the employee should be reinstated, subject to any con-

straints on management discretion (é.g., an agreement

to arbitrate) that the employer has voluntarily as-

sumed. That regulatory scheme defines (at least

insofar as the federal government is concerned) the

relevant “public policy” in this area. If a driver satisfies

the regulatory preconditions to reinstatement, and the

decisionmaker chosen by the parties concludes that

reinstatement is appropriate, we see no basis on which

a federal court may direct a different outcome.

A. So Long As Smith Complies With The Department Of

Transportation’s Rehabilitation Requirements, His

Reinstatement To A Safety-Sensitive Position Is Con-

sistent With “Public Policy” As Reflected In The

Department’s Regulations

1. As we explain above (see pp. 2-3, supra), Con-

gress has vested the Department of Transportation

(DOT) with broad authority to promulgate rules ad-

dressing the dangers posed by employee drug use

within the transportation industry. In devising appro-

priate regulations, DOT sought to balance three impor-

tant principles—each of which is firmly grounded in

federal statutory law. First, the use of illegal drugs by

workers in safety-sensitive positions poses a substantial

threat to public safety.” See Omnibus Transportation

® The DOT regulations make clear that individuals who cur-

rently use illegal drugs or have measurable amounts of such drugs

in their systems are ineligible to perform safety-sensitive func-

tions, regardless of whether the drug use occurs on or off duty.

14

Employee Testing Act of 1991 (Testing Act), Pub. L.

No. 102-143, Tit. V, § 2(3) and (4), 105 Stat. 953 (con-

gressional findings); p. 2, supra. Second, treatment and

rehabilitation of employees who use illegal drugs serves

important public and private interests. See Testing Act

§ 2(7), 105 Stat. 953 (congressional finding); 49 U.S.C. i

31306(e) (requiring DOT to “prescribe regulations |

establishing requirements for rehabilitation pro-

grams”).® Third, federal labor law reflects a preference

for private resolution, through the collective bargaining

Nig age OES

See 49 C.F.R. 382.213(a) (“No driver shall report for duty or re-

main on duty requiring the performance of safety-sensitive func-

tions when the driver uses any controlled substance.”); 49 C.F.R.

382.215 (“No driver shall report for duty, remain on duty or

perform a safety-sensitive function, if the driver tests positive for

controlled substances.”). That rule does not reflect a judgment

that every individual who tests positive for illegal drugs is in fact

impaired. DOT has recognized that “drugs may stay in the body

for some time and the presence of drugs in urine does not necessar-

ily mean that the person was affected by the drugs on the day

tested or during the performance of safety-sensitive functions.” 57

Fed. Reg. at 59,393-59,394. But precisely because urine testing

cannot determine whether an individual is impaired at a particular

time, any commercial driver who tests positive for illegal drugs

must be regarded as a potential threat to public safety. See id. at

59,396 (“It is not possible to determine, based on a chemical test, at

what amount a particular drug impairs each user’s performance of

particular functions and thus could have safety consequences, so

the mere presence of the drug must be prohibited.”).

6 Treatment and rehabilitation of such employees (as opposed

to outright discharge) most obviously serves the individual’s own

interest in resuming gainful employment and in avoiding the risk

of future criminal prosecution that inherently attends the use of

illegal drugs. In addition, however, rehabilitation and treatment

serves the interests of the transportation industry and the national

economy by allowing a worker’s specialized skills to be put to their

most productive use.

ee

15

process, of issues regarding workplace management.

29 U.S.C. 171(a).

The DOT regulations require testing of drivers in

safety-sensitive positions in order to deter the use of

illegal drugs and to detect those individuals whe engage

in drug use. The regulations require the immediate

removal from performance of safety-sensitive duties of

any individual who tests positive for illegal drugs. 49

C.F.R. 382.501. Under the rules, the driver is eligible

to resume safety-sensitive duties only after he has been

evaluated by a substance abuse professional (SAP), 49

C.F.R. 382.605(b); has passed a return-to-duty drug

test, 49 C.F.R. 382.605(c)(1); and has successfully com-

pleted any program of rehabilitation that the SAP

prescribes, 49 C.F.R. 382.605(c)(2)(i).’ The rules do not,

however, compel the employer to offer rehabilitation or

to reinstate a driver who has complied with the regu-

latory requirements. See 59 Fed. Reg. at 7502 (avail-

ability of rehabilitation should not be mandated by rule

but “should be left to management/driver negotiation”);

id. at 7503 (“Compliance with the prescribed treatment

and passing the test(s) will not guarantee a right of

reemployment.”). In short, the regulations establish

legal prerequisites to the resumption of safety-sensitive

duties by drivers who have tested positive for illegal

drugs, while leaving to private ordering the determina-

tion whether such workers will in fact be reinstated.

7 In addition, if the SAP has concluded that the employee needs

assistance in resolving problems associated with drug use, the

employee “[sJhall be subject to unannounced follow-up alcohol and

controlled substances tests administered by the employer follow-

ing the driver’s return to duty. The number and frequency of such

follow-up testing shall be as directed by the [SAP], and consist of

at least six tests in the first 12 months following the driver’s return

to duty.” 49 C.F.R. 382.605(c)(2)(ii).

16

2. The arbitrator’s decision in this case does not by

its terms require compliance with DOT’s rehabilitation

_ regulations as a prerequisite to Smith’s resumption of

safety-sensitive duties. The award orders that Smith

be “returned to work on October 20, 1997,” Pet. App.

29a, and it does not explicitly make that directive con-

tingent on Smith’s evaluation by an SAP or his success-

ful completion of any rehabilitation program that the

SAP prescribes. The award states that “[dJuring

[Smith’s] suspension period, [Smith’s] name shall

remain in the company’s random drug testing pro-

gram.” Ibid. It does not indicate, however, that Smith

must pass a return-to-duty test, nor does it require

periodic drug testing after the suspension is over,

even though the former is an absolute prerequisite

to resumption of safety-sensitive duties (49 C.F.R.

382.605(c)(1)), and the latter is required for any

employee identified by the SAP as needing assistance

in resolving drug-related problems (49 C.F.R.

382.605(c)(2)(ii)).

If the arbitral award is construed as entitling Smith

to resume safety-sensitive duties without completing

DOT’s rehabilitation requirements, the award is (at

least to that extent) invalid. The DOT regulations

make clear that

[nJo driver who has engaged in [illegal drug use]

shall perform safety-sensitive functions, including

driving a commercial motor vehicle, unless the

driver has met the requirements of § 382.605. No

employer shall permit a driver who has engaged in

[illegal drug use] to perform safety-sensitive func-

tions, including driving a commercial motor vehicle,

unless the driver has met the requirements of

§ 382.605.

17

49 C.F.R. 382.503. An employer and union may agree

to additional restrictions on the performance of safety-

sensitive functions by workers who have tested posi-

tive, but they may not waive the minimum prerequi-

sites to reinstatement that the regulations impose.

Obligations imposed by law cannot be superseded by

private contract. Thus, even if petitioner had never

sought vacatur of the arbitral award, Smith could not

lawfully resume his duties as a commercial driver with-

out first satisfying the requirements of 49 C.F.R.

382.605.

3. Although the arbitrator’s decision does not in

terms mandate compliance with the DOT rehabilitation

requirements, the award is capable of being imple-

mented in a manner that is consistent with those rules.

The award was issued on August 1, 1997, and ordered

that Smith be “returned to work on October 20, 1997.”

Pet. App. 29a. Depending on the SAP’s evaluation, any

required rehabilitation program might feasibly have

been completed before the end of Smith’s suspension.

If the rehabilitation program was still ongoing as of

October 20, 1997, Smith could have been placed tempo-

rarily in a job that did not require the performance of

safety-sensitive functions. The arbitrator’s decision

states that “(t]he company and union may agree that

unusual or unforeseen circumstances justify waiving

any conditions set forth above,” ibid., thus explicitly

preserving the ability of the parties to make any

necessary adjustments in the terms of the award.® And

8 Under the DOT regulations, the employee and employer are

both subject to penalties if a commercial driver who has tested

positive for illegal drugs resumes safety-sensitive duties without

satisfying the agency’s rehabilitation requirements. See 49 C.F.R.

382.501, 382.507. Thus, both the union and the employer have an

obvious incentive to ensure that an ambiguous arbitral award is

implemented in a manner consistent with governing law.

18

while the award does not itself require Smith to

undergo either a back-to-duty test or any follow-up

testing, it also does not purport to exempt him from any

drug tests that are otherwise mandated by law. More-

over, the arbitrator “reinstated” the award entered in

the prior arbitral proceeding (see ibid.), and that earlier

award required Smith to participate in a substance

abuse program (see id. at 25a).

Because the award is readily capable of being imple-

mented in a manner consistent with the DOT regula-

tions, and because petitioner has not contended that the

award violates the rehabilitation requirements and we

see no basis for assuming that the award is intended to

contradict obligations imposed by law, we believe the

arbitrator’s reinstatement order should be construed to

be contingent upon Smith’s compliance with Section

382.605, including successful completion of any reha-

bilitation program prescribed by the SAP. So con-

strued, the award is consistent with federal policy as

set forth in the Testing Act and the DOT regulations.

The decision of the court of appeals should therefore be

affirmed.

The thrust of petitioner’s argument is that rein-

statement of a commercial driver who has used illegal

drugs is logically inconsistent with the public policy

against drug use by workers in safety-sensitive posi-

tions, and with the DOT testing requirements designed

to further that policy. Petitioner’s argument reflects an

incomplete understanding of the agency’s regulatory

scheme. The regulations are not silent regarding the

consequences of a positive drug test. To the contrary,

the rules describe in detail the conditions that an

employee who tests positive must satisfy in order to.be

eligible to resume safety-sensitive duties, while leaving

to private ordering the decision whether reinstatement

is appropriate in a particular case. The regulatory

j

;

;

:

\

19

scheme fashioned by DOT—the federal agency assigned

by Congress to implement the Testing Act—defines the

relevant “public policy” in this area. If an employee

satisfies the regulatory prerequisites to resumption of

safety-sensitive duties, a federal court cannot properly

refuse enforcement of an arbitrator’s reinstatement

order based on the court’s belief that the conditions set

forth in the rules are insufficient to protect the public

safety.’

As we explain above (see pp. 5-6, 15-16, supra), the

DOT regulations do not require employers to make

rehabilitation programs available, and they do not

prevent an employer from discharging workers who

test positive for illegal drugs. Petitioner suggests (Br.

46-47) that if employers are permitted to impose sanc-

tions for drug use above and beyond those mandated by

the regulations, then federal courts must be free to do

so as well. That is a non sequitur. DOT’s statement

® With respect to some categories of drug users within the

transportation industry, Congress has itself mandated a specific

period of disqualification from the performance of safety-sensitive

duties. In the aviation industry, for example, Congress has im-

posed a permanent disqualification from the performance of certain

safety-sensitive jobs by persons who have used drugs while on

duty, or who have again used drugs after beginning or completing

a rehabilitation program. See 49 U.S.C. 45108(c)(1) and (2). A

commercial driver who is convicted of driving a commercial motor

vehicle while under the influence of drugs is subject to a manda-

tory one-year disqualification. See 49 U.S.C. 31810(b)(1)(A). Con-

gress has declined, however, to mandate a specific disqualification

period for drivers in Smith’s position. Rather, Congress has

directed the Secretary of Transportation to “decide on appropriate

sanctions for a commercial motor vehicle operator who is found

* * * to have used * * * a controlled substance in violation of

law or a Government regulation but who is not under the influence

of * * * a controlled substance as provided in this chapter.” 49

U.S.C. 31306(f).

20

that the availability of rehabilitation “should be left to

management/driver negotiation” (59 Fed. Reg. at 7502)

is itself an expression of agency policy. Consistent with

traditional principles of economic liberty and freedom of

contract, and with the national policy of encouraging

resolution of workplace management issues through the

collective bargaining process, see 29 U.S.C. 171(a); p. 6,

supra, DOT chose to entrust private parties with

significant discretion to determine whether reinstate-

ment is appropriate in particular cases. If Smith

satisfies the regulatory prerequisites to reinstatement,

and the decisionmaker chosen by the parties concludes

that reinstatement (after a three-month suspension) is

appropriate, enforcement of the arbitral award could

not plausibly be deemed inconsistent with any policy

judgment reflected in the DOT regulations. To the

contrary, a judicial decree setting the award aside

would be inconsistent both with the regulatory balance

struck by DOT, and with the federal labor policy (see

pp. 24-25, infra) favoring the resolution of contract

disputes through arbitration.

4. The fact that Smith failed two drug tests within a

16-month period does not significantly alter the analy-

sis. Employers are free under the regulations to adopt

policies requiring discharge of workers who fail two (or

any other number) of drug tests within a specified

period of time. DOT has declined, however, to require

discharge of recidivist drug users (or any sub-category

of recidivist drug users), concluding instead to entrust

decisions regarding repeat offenders to private

ordering and the sound judgment of arbitrators, subject

to the minimum prerequisites for resumption of safety-

sensitive duties set forth in 49 C.F.R. 382.605.

Contrary to petitioner’s contention (Br. 46), more-

over, the history of the pertinent DOT rulemaking

makes clear that the absence of any provision directed

< eer il

—— ee SSE

21

specifically at recidivist drug users reflects a deliberate

agency policy choice. A proposed regulation put forth

for public comment in December 1992 included a pro-

vision stating that “[a] driver who, during any 3-year

period, is found to have a verified positive controlled

substances test result twice in separate incidents, is

prohibited from driving any commercial motor vehicle

* * * for a period of 60 consecutive days.” 57 Fed.

Reg. at 59,585 (proposed 49 C.F.R. 382.1107(a)(2)(i)).

Even if that proposed rule had been adopted, the

arbitral award in the instant case would be valid, since

under the arbitrator’s decision Smith was suspended

for slightly more than three months. After considering

public comments on the proposed regulations, however,

the agency declined to mandate any specific period of

disqualification even for recidivist drug users. See 59

‘Fed. Reg. at 7493. The agency made clear that “[t]he

only driving prohibition period for a controlled sub-

stances violation is similar to that for alcohol—

completion of rehabilitation requirements and a return-

to-duty test with a negative result.” Jbid. There is

consequently no basis for petitioner’s suggestion (Br.

46) that the absence of a provision specifically directed

at recidivist drug users creates a regulatory gap that a

court may fill under the rubric of enforcing “public

poli cy.”

DOT has specifically addressed the issue of recidivist traffic

offenders, and has mandated a 60-day period of disqualification for

a commercial driver who is twice convicted, within a three-year

period, of “serious traffic violations” committed during the opera-

tion of a commercial vehicle. 49 C.F.R. 383.51(c)(2)(i). If Smith had

incurred two reckless driving convictions (see 49 C.F.R. 383.5,

defining “serious traffic violation” to include reckless driving), an

arbitral award ordering him reinstated after a three-month sus-

pension could not plausibly be challenged as violative of public

policy (given the existence of a DOT regulation specifically ad-

22

Smith’s status as a recidivist is surely relevant in

determining the appropriate response to his positive

drug test. The fact that Smith has twice tested positive

for marijuana may affect the SAP’s assessment of his

prospects for rehabilitation or the nature of the reha-

bilitation program that the SAP prescribes. Under the

arbitrator’s decision, moreover, Smith was subjected to

a significantly longer suspension after his second posi-

tive drug test than after his first, and to additional

sanctions (e.g., the requirement that he pay the costs of

both arbitral proceedings) as well. And nothing in

DOT’s regulations would prevent petitioner from

insisting, in negotiations with the union, on a contract

provision permitting it to discharge every commercial

driver who failed two drug tests within a specified

period of time. The text and history of the pertinent

DOT regulations, however, are inconsistent with any

contention that discharge is the only legally permissible

sanction for recidivist drug offenders.

Finally, we do not agree with petitioner’s contention

(Br. 48) that “reinstating Smith would make a mockery

of the drug testing regime mandated by Congress and

the DOT regulations.” The DOT regulations expressly

dressing the treatment of recidivist traffic offenders and prescrib-

ing a minimum disqualification period of 60 days). Petitioner’s

argument thus depends on the proposition that a commercial

driver who twice tests positive for marijuana, but has not been

shown to have driven while impaired or otherwise to have oper-

ated his vehicle in an improper manner, poses a greater threat to

public safety than does an employee who has twice been convicted

of reckless driving. Reasonable people may surely hold that view,

but it is difficult to see how that comparative judgment can be

regarded (particularly in the existing statutory and regulatory

context) as the province of a federal court. And it is still more

difficult to see how such a “public policy” can be inferred from

DOT’s considered refusal to specify a mandatory period-of dis-

qualification for recidivist drug users.

EE ~

23

contemplate the prospect that drivers who test positive

will (after completion of specified requirements)

eventually be permitted to resume safety-sensitive

duties. The regulations and accompanying preamble

also reflect the view that the decision whether rein-

statement is advisable in a particular case is appropri-

ately left to private ordering. It is therefore difficult to

see how reinstatement in accordance with the regu-

latory requirements, when decreed by the parties’

chosen decisionmaker, could make a “mockery” of the

agency’s rules.

In our view, drug testing of commercial drivers

serves important remedial and deterrent purposes even

if a positive test (or a second positive test) does not

invariably result in discharge of the offending em-

ployee. Drug testing identifies those workers who may

be in need of treatment and rehabilitation, and it

ensures that such workers do not resume safety-

sensitive duties until they have been evaluated by an

SAP and have successfully completed any rehabilitation

program that the SAP prescribes. Drug testing also

provides employers with relevant information and thus

enables them to take whatever additional steps they

deem appropriate, subject to any constraints on man-

agement discretion that the employer has voluntarily

assumed. In addition, disciplinary measures imposed as

a result of a positive drug test may have a substantial

deterrent effect on other workers even if the penalty

falls short of outright discharge. Reasonable people

may disagree as to whether Smith deserved a more

severe punishment than the arbitrator in this case

imposed. But the three-month suspension without pay

of a commercial truck driver cannot accurately be

characterized as “condonation” (Pet. Br. 41) of the

employee’s conduct.

24

B. The Courts Below Correctly Declined To Exercise De

Novo Review Over The Arbitrator’s Decision

Petitioner also contends that, even if the choice of an

appropriate punishment for a second positive drug test

requires consideration of all the facts and circumstances

(rather than the application of a per se rule of dis-

charge), the courts below ought to have exercised de

novo review over the arbitrator’s decision. Petitioner

argues (Br. 24, 27) that judicial deference to the arbitra-

tor’s judgment is inappropriate when the arbitrator’s

decision potentially affects persons outside the work-

place. That argument lacks merit and would, if ac-

cepted, substantially disrupt the implementation of the

federal labor laws.

1. In the so-called “Steelworkers trilogy”—~e.,

United Steelworkers of America v. American Manu-

facturing Co., 363 U.S. 564 (1960); United Steelworkers

of America v. Warrior & Gulf Navigation Co., 363 U.S.

574 (1960); and United Steelworkers of America v.

Enterprise Wheel & Car Corp., 363 U.S. 593 (1960)—

this Court emphasized the broad deference that courts

owe to the decisions of labor arbitrators acting under

collective bargaining agreements. The Court observed

that the employer’s agreement to arbitrate personnel

disputes is frequently the quid pro quo for the union’s

agreement not to strike. See American Mfg., 363 U.S.

at 567; Warrior & Gulf, 363 U.S. at 578. The Court also

explained that

the grievance machinery under a collective bargain-

ing agreement is at the very heart of the system of

industrial self-government. Arbitration is the

means of solving the unforeseeable by molding a

system of private law for all the problems which

may arise and to provide for their solution in a way

which will generally accord with the variant needs

25

and desires of the parties. The processing of dis-

putes through the grievance machinery is actually a

vehicle by which meaning and content are given to

the collective bargaining agreement.

Warrior & Gulf, 363 U.S. at 581.

Finally, the Court emphasized that “[w]hen an arbi-

trator is commissioned to interpret and apply the

collective bargaining agreement, he is to bring his

informed judgment to bear in order to reach a fair

solution of a problem. This is especially true when it

comes to formulating remedies. There the need is for

flexibility in meeting a wide variety of situations.”

Enterprise Wheel, 363 U.S. at 597. The Court explained

that

plenary review by a court of the merits [of the

arbitrator’s construction of the contract] would

make meaningless the provisions that the arbitra-

tor’s decision is final, for in reality it would almost

never be final. * * * [T]he question of interpre-

tation 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 construction of the

contract, the courts have no business overruling him

because their interpretation of the contract is

different from his.

Id. at 599,"

1 The Court reaffirmed those principles in Misco. The Court

observed that “the federal statutes regulating labor-management

relations * * * reflect a decided preference for private settlement

of labor disputes without the intervention of government.” 484

U.S. at 37. It explained that “[bJecause the parties have con-

tracted to have disputes settled by an arbitrator chosen by them

rather than by a judge, it is the arbitrator’s view of the facts and of

the meaning of the contract that they have agreed to accept.” Jd.

26

2. Determining the appropriate sanction in cases in-

volving employee drug use requires the decisionmaker

to assess the employee’s prospects for rehabilitation in

light of his overall work record and the circumstances

of his positive drug test(s). It also requires an under-

standing of the “typical” punishment for comparable

offenses (in a particular shop and/or in a broader geo-

graphic area), as well as an appreciation of other work- :

ers’ likely reactions to a particular sanction. Thus,

while the arbitrator’s authority is drawn from the

agreement of the parties, his powers under the agree-

ment typically extend beyond contract “interpretation”

narrowly conceived. See Warrior & Gulf, 363 U.S. at

582 (“The parties expect that [the arbitrator’s] judg-

ment of a particular grievance will reflect not only what

the contract says but, insofar as the collective

bargaining agreement permits, such factors as the

effect upon productivity of a particular result, its

consequence to the morale of the shop, his judgment

whether tensions will be heightened or diminished.”).

The arbitrator’s specialized training and repeated

exposure to workplace disputes gives him a significant

advantage (as compared to a federal judge) in resolving

those issues, notwithstanding the fact that the

consequences of the arbitrator’s decision may be felt

beyond the employer’s place of business (as would be

true for many types of employees, such as utility

4

at 37-38. The Court noted as well that “where it is contemplated

that the arbitrator will determine remedies for contract violations

that he finds, courts have no authority to disagree with his honest

judgment in that respect. If the courts were free to intervene on

these grounds, the speedy resolution of grievances by private

mechanisms would be greatly undermined.” Jd. at 38.

]

a

27

workers, health care workers, food handlers, makers of

many manufactured products, etc.).”

3. The arbitrator in this case placed substantial

weight on his own observation of Smith’s testimony.

See Pet. App. 28a. In practically any context where the

credibility of witnesses matters, reviewing courts give

deference to the decisionmaker who has seen and heard

the testimony firsthand. Under petitioner’s theory, the

district court in this case should have either made its

own credibility determination based on a cold record, or

conducted a new evidentiary hearing in order to assess

Smith’s credibility for itself. Neither alternative seems

workable. Moreover, both variants appear inconsistent

with this Court’s statement in Misco that “{hlad the

arbitrator found that Cooper had possessed drugs on

the property, yet imposed discipline short of discharge

2 Petitioner contends (Br. 40, 42) that the arbitral award is

called into question by the arbitrator’s failure to make an express

finding that Smith is unlikely to use drugs in the future. The

arbitrator stated, however, that Smith had “made a very personal

appeal under oath to the arbitrator concerning a personal/family

problem which caused this one time lapse in drug usage. The

arbitrator found this testimony creditable.” Pet. App. 28a.

Although that statement is-not altogether clear, it is most natu-

rally read to mean that the arbitrator credited Smith’s charac-

terization of his drug use as a “one time lapse,” as well as Smith’s

explanation for his misconduct. This Court has discouraged efforts

to impugn arbitral awards by exploiting ambiguities in the arbitra-

tor’s opinion. See Enterprise Wheel, 363 U.S. at 598 (“A mere

ambiguity in the opinion accompanying an award, which permits

the inference that the arbitrator may have exceeded his authority,

is not a reason for refusing to enforce the award.”). As we explain

above, moreover, Smith’s resumption of safety-sensitive duties is

contingent on his successful completion of any rehabilitation pro-

gram prescribed by the SAP. That independent prerequisite to

reinstatement further reduces the significance of the absence of

express arbitral findings concerning the likelihood of future drug

use.

—

28

because he found as a factual matter that Cooper could

be trusted not to use them on the job, the Court of

Appeals could not upset the award because of its own

view that public policy about plant safety was threat-

ened.” 484 U.S. at 45.

4. Expeditious resolution of employee grievances

under a collective bargaining agreement is indepen-

dently desirable. The employer and union are involved

in a continuing relationship, and the goal of federal

labor policy is that the relationship be as harmonious as

possible. Protracted litigation over individual griev-

ances disserves that policy. Cf. United Parcel Serv.,

Inc. v. Mitchell, 451 U.S. 56, 64 (1981) (collective bar-

gaining “system, with its heavy emphasis on grievance,

arbitration, and the ‘law of the shop,’ could easily be-

come unworkable if a decision which has given ‘meaning

and content’ to the terms of an agreement, and even

affected subsequent modifications of the agreement,

could suddenly be called into question as much as six

years later”).

Thus, judicial deference to arbitral decisions serves

an important practical purpose regardless of whether

arbitrators are better than courts at determining the

appropriate sanction for breaches of workplace rules.

So long as arbitrators are equally good (or even pass-

ably good) at making such judgment calls, a deferential

standard helps to ensure that the arbitrator’s decision

will be treated when issued as essentially final, thereby

allowing the parties to put the controversy behind

them. Petitioner’s proposed rule, by contrast, would

likely result in protracted litigation in a broad range of

cases. Cf. Enterprise Wheel, 363 U.S. at 599 (“plenary

review by a court of the merits would make mean-

ingless the provisions that the arbitrator’s decision is

final, for in reality it would almost never be final”).

29

5. As this Court emphasized in the Steelworkers

trilogy, the significance of arbitration clauses must be

assessed in the context of the collective bargaining

agreement as a whole. Such clauses further the cause

of industrial peace because ‘they have historically

served as the quid pro quo for the union’s agreement

not to strike. See American Mfg., 363 U.S. at 567

(“There is no exception to the ‘no strike’ clause and

none therefore should be read into the grievance clause,

since one is the quid pro quo for the other.”); Warrior &

Gulf, 363 U.S. at 578 (“A major factor in achieving

industrial peace is the inclusion of a provision for

arbitration of grievances in the collective bargaining

agreement,” since “arbitration is the substitute for

industrial strife.”); Alexander v. Gardner-Denver Co.,

415 U.S. 36, 54 (1974) (“The primary incentive for an

employer to enter into an arbitration agreement is the

union’s reciprocal promise not to strike.”).

Under petitioner’s approach, however, courts would

exercise de novo review over any arbitral ruling that

potentially affects the health or safety of the public,

even if the parties have agreed to entrust the dispute to

an arbitrator. That rule would effectively render arbi-

tration clauses unenforceable with respect to a substan-

tial category of workplace grievances. Petitioner urges

that result despite the fact that arbitration clauses have

historically been central to the maintenance of indus-

trial peace, and despite the fact that federal labor law

has broadly encouraged arbitration of disputes related

to the implementation of collective bargaining agree-

ments. See 29 U.S.C. 173(d) (“Final adjustment by a

method agreed upon by the parties is declared to be the

desirable method for settlement of grievance disputes

arising over the application or interpretation of an

existing collective-bargaining agreement.”). Peti-

tioner’s apparent dissatisfaction with the limited scope

30

of the public policy exception to enforceability of arbi-

tration awards provides no justification for its proposed

radical undermining of the finality of such awards,

which would subvert federal labor policy and threaten

substantial disruption of the collective bargaining

process.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

NANCY E. MCFADDEN LAWRENCE G. WALLACE

General Counsel Deputy Solicitor General

PAUL M. GEIER MALCOLM L. STEWART

Assistant General Counsel Assistant to the Solicitor

PETER J. PLOCKI General

Senior Attorney WILLIAM KANTER

Department of MARK W. PENNAK

Transportation Attorneys

JULY 2000