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EXXON CORP. v. LOCAL UNION 877

October 3, 1997

EXXON CORPORATION, Plaintiff,
v.
LOCAL UNION 877, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Defendant.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is an action filed pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), and 9 U.S.C. § 10. Plaintiff Exxon Corporation ("Exxon") brought suit against Local Union 877, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("Local 877"), seeking to vacate an arbitration award (the "Arbitration Award"), dated 10 March 1997, on the grounds that enforcement of the Arbitration Award violated well-defined and dominant public policy, and that the Award does not draw its essence from the parties' collective bargaining agreement (the "CBA").

 On 25 April 1997, Exxon filed a complaint (the "Complaint"). Exxon filed a motion for summary judgment to vacate the Arbitration Award (the "Motion to Vacate"). *fn1" Local 777 filed a motion for summary judgment to confirm the arbitration award (the "Motion to Confirm").

 Currently before the court are the Motion to Vacate and the Motion to Confirm. For the following reasons, the Motion to Vacate is granted; the Motion to Confirm is denied.

 Facts

 A. CBA between Exxon and Local 877

 Collective bargaining relations have existed between Exxon and Local 877 for approximately thirty years. Exxon Support Brief at 2. On 3 March 1993, Exxon and Local 877 entered into the CBA. See CBA, attached to Exxon Appendix, Exhibit 1A.

 Article 21 ("Art. 21") of the CBA memorializes a grievance procedure (the "Grievance Procedure") agreed to by the parties. See CBA, Art. 21 at 19. Article 22 ("Art. 22") of the CBA memorializes arbitration procedures (the "Arbitration Procedures") agreed to by the parties. See CBA, Art. 22 at 21.

 Article 29 ("Art. 29") of the CBA covers "discipline" and provides:

 
[Exxon] may discipline only for cause;
 
[Exxon] may post a list of offenses and publish working rules, and may change them only once each calendar year by giving [Local 877] 30 (thirty) days advance notice; and
 
Committing a posted offense, failing to obey the working rules, or unsatisfactory work performance may be cause for discipline.

 CBA, Art. 29 at 27.

 The last two pages of the CBA set forth posted offenses (the "Posted Offenses"). See CBA, Posted Offenses at 63-64.

 B. Exxon's Alcohol and Drug Policy

 1. The Alcohol and Drug Policy

 In September 1989, Exxon formally established an alcohol and drug policy (the "Alcohol and Drug Policy"). See Alcohol and Drug Policy, attached to Exxon Appendix, Exhibit 1B. Like the CBA, the Alcohol and Drug Policy provides that "[a] positive test result or refusal to submit to a drug or alcohol test is grounds for disciplinary action, including termination." Alcohol and Drug Policy at 1. In addition, the Alcohol and Drug Policy provides, in relevant part:

 
[Exxon] recognizes alcohol or drug dependency as a treatable condition. Employees who suspect they have an alcohol or drug dependency are encouraged to seek advice and to follow appropriate treatment promptly before it results in job performance problems. Employee Health Advisory Program or medial professional staff will advise and assist in securing treatment. ...
 
Any employee returning from rehabilitation will be required to participate in [an Exxon]-approved after-care program. If an employee violates provisions of the Employee Alcohol and Drug Use Policy, appropriate disciplinary action will be taken. Such action cannot be avoided by a request at that time for treatment or rehabilitation. If an employee suffering from alcohol or drug dependency refuses rehabilitation or fails to respond to treatment or fails to meet satisfactory standards of effective work performance, appropriate disciplinary action, up to and including termination, will be taken. This policy does not require and should not result in any special regulations, privileges, or exemptions from normal job performance requirements.
 
[Exxon] may also require employees to submit to medical evaluation or alcohol and drug testing where causes exists [sic] to suspect alcohol or drug use.

 Alcohol and Drug Policy at 1.

 2. The Human Affairs International, Inc. Extended After-Care Contract

 Individuals who participate in the extended after-care program (the "Extended After-Care Program") discussed in the Alcohol and Drug Policy are required to execute a document known as the Human Affairs International, Inc. ("HAI") Extended After-Care Contract (the "HAI After-Care Contract"). See HAI After-Care Contract, attached to Exxon Appendix, Exhibit 1C. Pursuant to the HAI After-Care Contract, the employee agrees, inter alia, to: (1) totally abstain from alcohol and drug use; (2) participate in treatment for chemical dependency for a minimum of two years; (3) immediately inform a sponsor, such as Alcoholics Anonymous ("AA"), Narcotics Anonymous ("NA") or Cocaine Anonymous ("CA"), the HAI Counselor and Exxon Health Services or his or her supervisor when stressful situations arise that endanger the his or her sobriety; and (4) attend support group meetings, such as AA, NA or CA. See HAI After-Care Contract at 1.

 The HAI After-Care Contract further provides that "failure to follow this procedure, or failure to follow the recommended counseling and continuing care meetings of [the] HAI After-Care Contract, or performance problems will result in discipline which may include termination of [] employment." HAI After-Care Contract at 3. The HAI After-Care Contract reminds the signatory 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." HAI After-Care Contract at 3.

 C. Employment History of Robert George

 As a Blender, George transferred volatile petrochemical products, ranging from 250 to 300 degrees and at pressures up to 150 pounds per square inch. Id. at P 6. George transferred volatile petrochemical products to tanks ranging in size from 8,000 up to 250,000 gallons. George transferred approximately 285,000 gallons of volatile high temperature and high pressurized products each shift. Id. George was also responsible for shutting down a unit in the event of an emergency. Id. George transferred volatile petrochemical products from the manufacturing side of the Chemical Plant to the tankage area of the blending unit, located on the opposite side of the plant. Id.

 1. Accidents at the Chemical Plant

 On 13 February 1988, George, while working as an operator, connected steam and began heating a tank car containing 23,000 gallons of a thermally sensitive lubrication oil additive in violation of the Chemical Plant's policy (the "13 February 1988 Accident"). *fn2" As a result of heating the additive, the mixture thermally decomposed sending a cloud of hydrogen sulfide and alkyl mercaptans across many New Jersey communities. As a result of the incident, Exxon was forced to undertake extensive clean-up and remediation of the decomposed material. Goodhart Aff. at P 5.

 In 1993, George was responsible for several work and safety related incidents, including overfills and spills from chemical storage tanks. Id. at P 8. George's supervisor, Brian Codd ("Codd"), counseled him on numerous occasions as to his unsatisfactory work performance. Testimony of Brian Codd, Transcript of Arbitration Proceeding, attached to Exxon Appendix, Exhibit 15 at 47 (the "Codd Testimony").

 On 26 July 1993, George overfilled Tank 634, a 150,000 gallon vessel, with zinc dialkyl dithil phosphate, resulting in a loss of 100 to 200 gallons of product into the environment (the "26 July 1993 Tank Overfill"). See Letter, dated 13 August 1993, from Codd to George, attached to Exxon Appendix, Exhibit 8 (the "13 August 1993 Letter"); Codd Testimony at 47. The 13 August 1993 Letter was a "warning letter" describing the 26 July 1993 Tank Overfill "as a result of [George] not following proper procedures." 13 August 1993 Letter. The 13 August 1993 Letter also noted "you [George] have also been counseled several times for your failure to report to work on time." Id.

 Codd testified in the Arbitration Proceeding that he questioned George on several occasions regarding his behavior, including arriving to work late and leaving early, wearing sunglasses during work, appearing to sleep on the job, and his confrontational attitude. Codd Testimony at 46-49. Codd suggested to George that he seek help from Exxon's Medical Department (the "Medical Department") "if [George] did have some kind of problem and he didn't want to discuss it with [Codd]." Codd Testimony at 51.

 2. Admission of Drug Use by George

 On 3 February 1994, George went to the Medical Department, admitted he had a problem with cocaine and marijuana, and asked for help. Testimony of Ellen Confer, R.N. (the "Confer Testimony"), Transcript of Arbitration Proceeding, attached to Exxon Appendix, Exhibit 15 at 66. George was placed on medical leave and entered an outpatient rehabilitation facility. Confer Testimony at 66.

 In March 1994, George returned to work while continuing rehabilitative activities in the Extended After-Care Program. Arbitration Opinion and Award (the "Arbitration Opinion") at 4. On 16 March 1994, George executed an HAI After-Care Contract which was also signed by Codd and Richard Cadema ("Cadema"), the HAI counselor. The HAI After-Care Contract required that George totally abstain from the use of alcohol and non-prescription drugs, immediately inform his Sponsor, his HAI counselor and Exxon Health Services or his Supervisor if "[his] work or home situation becomes stressful enough to endanger [his] sobriety," to attend "12 Step Support Group meetings," and to attend "Guided Life Structures" activities on a regular basis. See HAI After-Care Contract, attached to Exxon Appendix, Exhibit 1C. Also on 16 March 1994, George signed an after-care plan agreement (the "After-Care Plan Agreement"), which provided:

 
I understand total abstinence from all drugs/alcohol is expected and that any relapse must be communicated to my HAI Counselor and my Supervisor or the Exxon Medical Department immediately. Failure to follow this procedure, or failure to follow the recommended counseling and continuing care meetings of my HAI After-Care Contract, or performance problems will result in discipline which may include termination of employment.

 After-Care Plan Agreement, attached to Exxon Appendix, Exhibit 1C.

 3. George's Return to Work at Exxon

 On 16 March 1994, George asked if he could return to work. See Arbitration Opinion at 4. On the same day, George requested that he be tested for drug use on 21 March 1994 instead of 17 March 1994, because he had used cocaine that Sunday and was afraid he would test positive for drug use. Confer Testimony at 69. After discussing the request with the HAI counselor and with Exxon's Medical Director (the "Medical Director"), postponement was agreed upon and it was further agreed that further counseling sessions would be added to George's schedule. Arbitration Opinion at 5-6. George returned to work on 21 March 1994, and results from a drug test taken that day were negative. Id. at 6.

 For several months following George's return to work, the results of his random drug tests were all negative. Arbitration Opinion at 6. However, in July 1994, Corning Nichols Institute ("Corning Nichols"), a substance abuse testing laboratory, reported to Exxon that a urine specimen George submitted for testing on 7 July 1994 (the "7 July 1994 Specimen") indicated dilution and the specimen had an odor of bleach. Id. When George was confronted with these findings, he offered no explanation. Id. After the 7 July 1994 Specimen, George was retested and the results were negative. Confer Testimony at 99.

 During a drug test administered 3 January 1995 (the "3 January 1995 Specimen"), George gave a urine specimen that registered a temperature of 102 degrees. Arbitration Opinion at 6. As a result of the abnormally high temperature, a second specimen was obtained and both were sent to Corning Nichols. Id. ; Confer Testimony at 97. Exxon received results showing both specimens were negative, but ...


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