off-premises drug use would hinder or be involved in her performance on the job in the future was too low to merit her discharge. Off-duty/off-premises conduct involving the illegal use and sales 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 [the employee's] case to credit the public policy favoring drug rehabilitation and find that [the employee] no longer used drugs and would not present a safety risk in the future. Based on the facts available at the time of the arbitration decision, enforcement of the arbitrator's award would not have violated public policy.
818 F.2d at 442 (emphasis added).
In Northwest Airlines, Inc., the award was not found to violate public policy because the award required the employer to reinstate the pilot only after he was recertified by the FAA as fully fit and licensed to fly. 808 F.2d at 83. In that case, the public safety concerns were satisfied through the recertification requirement.
In this case, there are no findings that Fris would not engage in similar reckless conduct of coming on duty while being heavily intoxicated. The Arbitration Award, at best, stated that an employee with a favorable working history "should have been given an opportunity to demonstrate that the events on September 13, 1989, were an aberration, and that they would not happen again." Arbitration Award at 9. Unlike Northwest Airlines on which Fris relies, there were no conditions placed on Fris' reinstatement. Fris was only cautioned that if he was found using alcohol once more, he would be subject to immediate discharge. Id. at 9-10. On these facts, public policy is violated by reinstating Fris.
The Union stresses the fact that Fris had an unimpaired record and had never before arrived to duty in an intoxicated state. It argues Fris' conduct is an aberration in his record. The fact that Fris had never before engaged in such reckless conduct does not detract from the fact that his blood alcohol content level was three to four times the level permitted by the Revised Alcohol Policy and Coast Guard regulations while assuming duty as an able bodied seaman.
Moreover, Fris was clearly on notice that termination was an option for any employee who was in violation of the Exxon's alcohol policy. The 29 March 1988 Letter stated: "Being unfit for work because of drugs or alcohol is strictly prohibited and is grounds for termination of employment." Exhibit 1A. Moreover, Fris had notice of the Revised Alcohol Policy for months before he boarded the Long Beach for duty on 13 September 1989.
The grounding of the Exxon Valdez and the subsequent grounding of the Exxon Wilmington, see Exxon Shipping, 788 F.Supp. at 845, underscore the safety and environmental tragedies which can result from the grounding of a large vessel carrying vast amounts of oil or petroleum products. Exxon, confronted with extensive destruction of the environment and the bill for billions of dollars in clean-up costs from the Exxon Valdez incident and the potential for such in the Exxon Wilmington incident, sought to avoid other such incidents. The decision of the Arbitration Board to reinstate Fris inappropriately favors the reemployment of one individual not only at the expense of Exxon's coffers and its ability to protect itself from liability, but at the expense of the public's safety and environmental interests.
The mere appearance of a problem at times is as troubling as the problem itself. An employee does not have to be unable to speak or walk or think to be impaired or unfit for work. The presence of more than three times the permitted level of alcohol in the blood stream of Fris while he ready to assume his duties on the Long Beach, creates, at the very least, the appearance of a problem. In reality, it creates a serious problem in fact. Fris had significant operational responsibility for an oceangoing oil tanker.
The fact that the Exxon Long Beach was anchored during Fris' duty is of no moment. Fris nevertheless had obligations and responsibilities which required the exercise of judgment and discretion. The effects of alcohol are well-known: It impairs coordination, slows the reflexes and response time to external stimuli, dulls the senses, induces drowsiness and inhibits the ability to reason. With an excess of three to four times the blood alcohol content level permitted by Exxon and the Coast Guard, Fris would be hard pressed to exercise the judgment and discretion required even on a moored oil tanker. Fris' conduct was an extreme abuse of his position and a volitional disregard for his responsibilities. The decision by Exxon to terminate his employment was both correct and just.
Oil companies in general, and Exxon in particular, have been the subject of harsh criticism concerning their efforts to protect the safety of the public and to preserve the environment. In many instances, oil companies are not regarded as good corporate neighbors. For Exxon to continue in its employ as an able bodied seaman, a person such as Fris creates the appearance of a disregard for the safety of the public and the environment. If Fris is involved in an accident with similar amounts of a controlled substance in his system, Exxon would be hard put to explain or justify his employment.
In this case, it is uncontroverted that Fris had three to four times the limit of alcohol in his bloodstream. The risk in which Fris placed the public and the environment is unacceptable and inexcusable. Were Fris merely derelict in a nonsensitive office position or were Fris blood alcohol content bordering on the permissible level, public policies may not mandate, as stringently, the vacating of the Arbitration Award. Fris, however, was not a desk-bound employee; as mentioned, he had significant responsibilities for the operation of a large, ocean-going oil tanker. Public policy considerations must place public safety and welfare above considerations of individuals such as Fris in this instance. Those who chose to make their living with heavy responsibility for the operation or navigation of ships, aircraft or rail traffic (regardless of whether the conveyance may be passenger or freight) or in industries such as nuclear power plants, must anticipate much will be demanded of them with regard to on-the-job performance. Exxon Shipping, 788 F.Supp. at 846. There is no margin for error in these industries. A mistake is usually catastrophic in terms of loss of life, damage to the environment or destruction of property. A mistake caused by or clouded by the presence of an excessive level of alcohol in the system of a worker is simply unacceptable. Id.
Under the facts of this case, public policy cannot tolerate a second chance, as required by the Arbitration Award. It flies against notions of common sense to reinstate an employee, who had three to four times the permissible blood alcohol content in his bloodstream, to a position where he potentially increases the risks of another oil spill. Public policy would be violated by enforcing the Arbitration Award. Accordingly, the Arbitration Award is vacated.
Exxon's motion for summary judgment is granted; the Arbitration Award is vacated.