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EXXON SHIPPING CO. v. EXXON SEAMEN'S UNION

August 11, 1992

EXXON SHIPPING COMPANY, A Delaware Corporation, Plaintiff,
v.
EXXON SEAMEN'S UNION, Defendant.



The opinion of the court was delivered by: LECHNER

LECHNER, District Judge

 Currently before the court is the motion of plaintiff Exxon Shipping Company ("Exxon") for summary judgment to vacate an arbitration award (the "Arbitration Award") in favor of the Exxon Seamen's Union (the "Union") which required Exxon to reinstate Randall Fris ("Fris") as an able bodied seaman rather than discharge him from employment. *fn1" Jurisdiction is alleged pursuant to section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and appears to be appropriate.

 For the reasons set forth below, the Arbitration Award is vacated.

 Facts

 Exxon is a Delaware corporation with its principal place of business in Texas. Exxon 12G Statement, P A(1). Exxon operates American flag ships and other vessels on the high seas and the inland water ways of the United States. Id. The Union is an unincorporated labor organization representing "all unlicensed personnel employed in the Deck, Engine, and Stewards Departments of Exxon Shipping's vessels." Id., P A(2). Fris has been an employee of Exxon since 1981.

 On 31 July 1985, Exxon and the Union entered into a collective bargaining agreement (the "Agreement") concerning the "wages, hours and other terms and conditions of employment of those employees [for whom] the Union had been certified as the exclusive bargaining representative." Id., P A(3). Article V of the Agreement contains grievance and arbitration procedures. Exhibit 1B. The provisions regarding the arbitration of disputes provide in pertinent part:

 C. The decision of the majority of the said Board of Arbitration shall be final and binding upon the employee, [Exxon] and the [Union], and shall conclusively determine the same not to exceed the life of this Agreement.

 . . . .

 E. If either party refuses to arbitrate under the conditions set forth above, or after arbitration, refuses to abide by the decision heretofore prescribed, the other party may pursue its lawful remedies.

 Id.

 By letter, dated 27 September 1988 (the "27 September 1988 Letter"), Exxon explained the Alcohol Policy and expressed its intent to implement more stringent enforcement procedures. Exhibit 1D. The 27 September 1988 Letter was sent to all ocean going employees, including Fris. Id.; Exxon 12G Statement, P A(6). The 27 September 1988 Letter informed the employees that termination would be the standard penalty for violations of the policy statement. Exhibit 1D. According to Exxon, the letter served as

 another official notice that violation of the Company Alcohol and Drug Use Policy, or regulations governing alcohol or drug use in the work place will result in immediate termination from the vessel. While we must continue to thoroughly investigate the facts of each individual case and make a final determination on a case-by-case basis, termination of employment is the penalty for violation of these standards.

 Id. (emphasis added). The Union contested the impact of the 27 September 1988 Letter because it was a unilateral statement which was not subject to collective bargaining with the Union.

 On 5 September 1989, Exxon and the Union entered an agreement modifying the terms and conditions of employment, entitled the Memorandum of Understanding (the "Memorandum"). The Memorandum was subject to the grievance procedure set forth in the Agreement. Exhibit 1E. Specifically, the Memorandum addressed Exxon's policy with respect to alcohol use. It provided:

 A breathalyzer test may be given "for cause" by a supervisor trained to conduct such tests to anyone suspected of intoxication. A .04 or above Blood Alcohol Content (BAC) is considered intoxication and may result in discharge from the vessel and subject the employee to further discipline up to and including termination.

 Exhibit 1E, P 1(c) (the "Revised Alcohol Policy") (emphasis added). The blood alcohol content level of .04, establishing intoxication, is in accord with the level in the regulations promulgated by the United States Coast Guard (the "Coast Guard"). *fn2"

 On 13 September 1989 Fris returned to the Exxon Long Beach (the "Long Beach"), a 987-foot oil tanker, where he was employed as an able bodied seaman. *fn3" Exxon 12G Statement, PP A(11)-(12). Fris was observed by several of the officers of the Long Beach to be in an impaired condition. Id., P A(12). Therefore, Fris' blood alcohol content level was tested with a device known as an Alco Sensor III breathalyzer. *fn4" Id. The breathalyzer test revealed Fris had a blood alcohol content level of .150, more than three times Exxon's and the Coast Guard's limit. Id. A second breathalyzer test indicated Fris' blood alcohol content level was .163, more than four times Exxon's and the Coast Guard's limit. Id. On 14 September 1989 Exxon discharged Fris for violation of the Revised Alcohol Policy, various posted offenses and Coast Guard regulations. Id., P A(13).

 The Arbitration Award, issued 16 October 1991, stated there is no dispute that Fris was intoxicated when he went aboard the Long Beach to assume duty on 13 September 1989. Id. at 7. The Arbitration Panel found, however, the discharge of "Fris was not for just cause." Id. The Arbitration panel reasoned that under the terms of the Memorandum and Revised Alcohol Policy, there is no mandatory requirement of discharge for an employee who is found to be intoxicated while on duty. Id. at 7-8. It further stated Exxon "is required to determine what discipline, 'up to and including termination,' is justified in each individual case." Id. at 8.

 In finding that suspension, rather than discharge, was the appropriate remedy, the Arbitration Panel relied on the fact that Fris had been employed with Exxon for eight years during which time he had an unblemished record with high evaluations. Id. at 8-9. It stated: "Such an employee should have been given an opportunity to demonstrate that the events on September 13, 1989, were an aberration, and that they would not occur again." Id. at 9. The Arbitration panel concluded: "There is no public policy that requires [Exxon] to terminate all employees who are intoxicated aboard its vessels, and [its] agreement to apply progressive discipline, when applicable, does not violate any public policy." Id. at 9. It, however, cautioned Fris that "intoxication aboard vessels is a very serious offense, which may subject employees to termination on the first occasion, and which will surely be cause for termination thereafter." Id. at 9-10.

 The Arbitration panel directed Exxon to reinstate Fris with a ninety-day suspension plus backpay. Id. at 10. On 29 January 1992 Exxon filed the complaint seeking to vacate the Arbitration Award.

 Discussion

 Exxon moves for summary judgment to vacate the Arbitration Award on the ground that it violates public policy and it does not draw its essence from the collective bargaining agreement. Moving Brief at 1, 9-15; Reply Brief at 3-6. The Union argues the Arbitration Award does not violate public policy because Fris did not have a history of abuses of alcohol and a ninety-day suspension is sufficient penalty for conduct which is an aberration. Opposition Brief at 12-22. The Union further argues the Agreement does not require that all employees be terminated if found to have violated the Revised Alcohol Policy. Id. at 23-29.

 A. Summary Judgment Standard of Review

 To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The present task is to determine whether disputed issues of fact exist, but a district court may not resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Desvi, Inv. v. Continental Ins. Co., 968 F.2d 307 ) ("The threshold inquiry is whether there are 'genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" (citations omitted); Gray v. York Nwspr., 957 F.2d 1070, 1078 (3d Cir. 1992) ("We apply the test . . . (1) Is there no genuine issue of material fact and (2) is one party entitled to judgment as a matter of law?") (quotations omitted); Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir. 1991) ("Summary judgment is inappropriate when a conflict on a material fact is present in the record."); Nathanson v. Medical College of Penn., 926 F.2d 1368, 1380 (3d Cir. 1991) (Summary judgment may not be granted "if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed.").

 All evidence submitted must be viewed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Williams v. New Castle County, F.2d , No. 91-3899, slip op. at 8 (3d Cir. 24 July 1992); Boyle v. Governor's Veterans Outreach & Assistance Center, 925 F.2d 71, 75 (3d Cir. 1991); Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990); Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989). "'Any 'unexplained gaps' in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment.'" Ingrsoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497, 502 (3d Cir. 1990) (quoting O'Donnell v. United States, 891 F.2d 1079, 1082 (3d Cir. 1989)).

 Although the summary judgment hurdle is a difficult one to overcome, it is by no means insurmountable. As the Supreme Court has stated, once the party seeking summary judgment has pointed out to the ...


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