to refrain from performing safety-sensitive positions, "but also that employers develop (and enforce) programs designed to discourage such activity." 118 F.3d at 849. The Circuit found that "[the employee] transgressed the terms of [the drug-free program] three times over: failing to report his drug use to Exxon, falsely representing that he abjured illicit drugs, and testing positive for drug use." 118 F.3d at 851.
Other circuits have refused to enforce arbitration awards reinstating employees found to have been impaired on the job. See Exxon Corp v. Baton Rouge Oil and Chemical Workers Union, 77 F.3d 850 (5th Cir. 1996) (employee tested positive for cocaine); Union Pacific R.R. Co. v. United Transp. Union, 3 F.3d 255, 262 (8th Cir. 1993) (employee tested positive for drug use after a switching accident), cert. denied, 510 U.S. 1072 (1994); Gulf Coast Indust. Workers Union v. Exxon Company U.S.A., 991 F.2d 244 (5th Cir. 1993) (employee tested positive for cocaine); Amalgamated Meat Cutters and Butcher Workmen, Local Union 540 v. Great Western Food Co., 712 F.2d 122, 125 (5th Cir. 1983) (professional driver caught drinking on duty); Delta Airlines Inc. v. Air Line Pilots Assn. Int'l, 861 F.2d 665 (11th Cir. 1988) (employee flew an aircraft while obviously drunk), cert. denied, 493 U.S. 871, 107 L. Ed. 2d 154, 110 S. Ct. 201 (1989).
b. Statutes, Regulations and Executive Orders
In the instant matter, Exxon argues that "reinstatement of George subverts Exxon's Alcohol and Drug Policy and prevents Exxon from carrying out its obligation and duty to furnish a safe workplace." Exxon Support Brief at 12-13. Exxon points to numerous statutes, regulations and executive orders addressing the problem of drugs and alcohol in the workplace. See Exxon Support Brief at 19-21. There is abundant support for Exxon's proposition that a myriad of regulations from various Governmental agencies concern alcohol and drugs in the workplace, and demonstrate a well-defined and dominant public policy of ensuring a drug-free and safe workplace. See e.g., Drug-Free Workplace Act of 1988, 41 U.S.C. § 701 et seq. (requiring all federal contractors and grantees to establish a drug abuse prevention program including education, counseling, and penalties for drug use); Occupational Safety and Health Act ("OSHA"), 29 U.S.C. § 651-1 et seq. (requiring employers "furnish to each of his [or her] employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his [or her] employees," 29 U.S.C. § 654(a)(1)); Omnibus Transportation Employee Testing Act of 1991, 49 U.S.C. § 2717; Guidelines for Nuclear Power Plant Drug and Alcohol Testing Programs, 10 C.F.R. § 26 (1991); Federal Aviation Administration Drug Testing Program, 14 C.F.R. § 121, Appendix I (1991); Procedures for Transportation Workplace Drug Testing Programs, 49 C.F.R. § 40.1 (1991) (Dep't of Transp.); Dep't of Defense Drug Abuse Testing Program, 32 C.F.R. § 60.1. (1991); Control of Alcohol and Drug Use: Procedures and Safeguards for Urine Drug Testing, 49 C.F.R. § 219, Appendix A (1991) (Federal Railroad Administration); Control of Drug Use in Mass Transportation Operations, 49 C.F.R. § 653.1 (1990) (Urban Mass Transportation Administration).
Exxon, in addition, is a contractor for the Department of Defense. Exxon Support Brief at 20. The Departments of Energy and Defense have promulgated regulations to ensure that safety-sensitive jobs are only performed by unimpaired individuals. See Submission, Approval and Implementation of Baseline Workplace Substance Abuse Program, 10 C.F.R. § 707.5 (Dep't of Energy); Drug-Free Workforce, 48 C.F.R. § 252.223-7004(c)(I) (Dep't of Defense). Contractors for these agencies must identify illegal drug users, including testing employees in safety-sensitive positions. See id.
2. Application of the Well-Defined and Dominant Public Policy
a. Identification of Positive Law Not Required
Local 877 argues that nothing in these regulations mandates Exxon discharge an employee who tests positive for drugs, or prohibits George's reinstatement to employment. Local 877 Support Brief at 23-24. This narrow interpretation of the public policy identified from these regulations, and the emphasis on identifying a positive law that forbids the conduct at issue, is misguided.
As discussed, the Misco Court left open the question of whether an arbitration award may be set aside on public policy grounds only when the award violated positive law. See Exxon II, 11 F.3d at 1192. The Third Circuit, however, has subsequently answered this question with a resounding "no." In Stroehmann Bakeries, 969 F.2d at 1436, the Circuit affirmed the District court's decision to vacate an arbitration award reinstating an employee accused of sexual harassment "without identifying any statute, regulation or court decision that made the reinstatement of the deliveryman - as opposed to the alleged sexual harassment - illegal." Exxon II, 11 F.3d at 1192.
In Exxon I, the Circuit upheld the vacation of an arbitration award "that did not require conduct that violated any statute, regulation, or other manifestation of positive law." Exxon II, 11 F.3d at 1192 (citing Exxon I, 993 F.2d at 363). A court need not find a violation of a "specific rule or prohibition." Exxon I, 993 F.2d at 364. The Circuit in Exxon II observed the Third Circuit is not alone in allowing courts to vacate arbitration awards even when reinstatement is not prohibited by positive law. See Exxon II, 11 F.3d at 1193-94 (citing Gulf Coast Indus. Workers Union v. Exxon Co., U.S.A., 991 F.2d at 257; Delta Airlines, 861 F.2d at 674-75; Iowa Elec., 834 F.2d at 1430; Amalgamated Meat Cutters v. Great Western Food Co., 712 F.2d at 125)).
As the Third Circuit stated in dicta in Exxon III, "the force of our decisions in Exxon I and [ Exxon II ] would be radically undermined if we decline to take the logical next step and decide that reinstatement of an employee who refused to submit to a drug test upon a showing of reasonable cause violates public policy." Exxon III, 73 F.3d at 1294-95. The same public policy applied in Exxon III applies to this case. The force of the decisions in Exxon I and Exxon II would be undermined by a requirement that a court find an explicit regulation that addresses the termination of employees who test positive for drugs.
b. Well-Defined and Dominant Public Policy Not Limited to Safety-Sensitive Positions
Local 877 argues that George was not employed in a safety-sensitive position and thus his case is distinguishable from the case law discussed above. Local 877 Reply Brief at 4-5. As part of the Alcohol and Drug Policy, Exxon states:
An employee who has had or is found to have a substance abuse problem will not be permitted to work in designated positions identified by management as being critical to the safety and well being of employees, the public, or [Exxon].
See Alcohol and Drug Policy. Local 877 points out that if George were in a position designated as safety-sensitive under the Alcohol and Drug Policy, he would not have been able to return to his previous position after his rehabilitation. See Local 877 Support Brief at 4. The Arbitrator did not state in the Arbitration Opinion whether George's job duties were safety-sensitive.
Both Codd and Herbert M. Armeny ("Armeny"), the Supervisor of the Blending and Shipping Department, testified in the Arbitration Proceeding that George was not working in one of positions designated under the Alcohol and Drug Policy as "critical to the safety and well being of employees, the public or [Exxon]." See Codd Testimony at 59-60; Testimony of Armeny, attached to Exxon Appendix, Exhibit 15 at 212-16 (the "Armeny Testimony").
Local 877's position is counter-intuitive in light of the job description of a Blender, and exalts form over substance. While working as a Blender in the Chemical Plant, George transferred 285,000 gallons of high temperature and high pressurized product each shift throughout the facility. See Gooder Aff. at P 6. George's supervisor, Codd testified that as a Blender, George was responsible for large transfers of manufactured products, many of which "come out of their tankage at 300 degrees ... at pressures up to ninety and one hundred pounds per square inch. " Codd Testimony at 45. He further testified that a Blender must be "pretty careful because there are some hazards involved." Id. at 45-46. George was not a desk-bound employee whose drug use might not mandate, as stringently, the vacating of the arbitration award as contrary to public policy. See Exxon Shipping Co. v. Exxon Seamen's Union, 788 F. Supp. at 846. As a Blender, George had a much greater potential to cause physical, environmental, or economic harm than the typical office worker.
Exxon's position that George had significant safety-sensitive responsibilities is furthered by the reality of accidents in which George was involved while working at the Chemical Plant. Even if these accidents can be attributed to simple human error and not to impairment by drugs or alcohol, the accidents demonstrate that as a Blender, George is capable of causing serious injury to others, serious damage to the environment and serious economic damage to Exxon as a result of mistakes. "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 preserve the environment. In many instances, oil companies are not regarded as good corporate neighbors." Exxon Shipping Co. v. Exxon Seamen's Union, 801 F. Supp. 1392. Exxon has an interest in preventing these kinds of accidents from occurring in the future, and one method of prevention is to ensure that George, or any other employee, does not arrive at work impaired.
In any case, the identification of a well-defined and dominant public policy against having drug-impaired employees on the job does not hinge on the formal designation of the job. As discussed, the well-defined and dominant public policy revealed in Exxon I, Exxon II and Exxon III was found in regulations and laws mandating that employers furnish a drug-free workplace, as well as in common sense. The safety-sensitive designation of the employees' positions was a factor considered in the cases vacating arbitration awards, but the public policy identified was not limited to keeping impaired people from formally designated safety-sensitive positions. It is appropriate to apply the case law, regulations, statutes and executive orders to a case where the employee's position is not designated as safety-sensitive.
Enforcing the Arbitration Award and requiring George's reinstatement would condone his illegal activity and send a signal that drug use, and attempts to evade detection of drug use by adulterating drug tests, will be tolerated. It flies against the notions of common sense to reinstate an employee who (1) is an admitted drug and alcohol abuser, (2) relapsed after rehabilitation,
(3) admitted he adulterated the 7 July 1994 Specimen, (4) gave the 3 January 1995 Specimen that appeared to be adulterated, and (5) gave "implausible and unbelievable" excuses for why the 31 May 1995 Specimen tested positive for cocaine. All of these facts were disregarded, merely because the chain of custody of the 31 May 1995 Specimen was not established beyond a reasonable doubt. Well-defined and dominant public policy would be violated by enforcing the Arbitration Award. Accordingly, the Arbitration Award is vacated.
For the reasons stated, the Motion to Vacate is granted; the Motion to Confirm is denied.
Dated: 3 October 1997