Thе plaintiff, a company that manufactures steel castings, fired one of its foundry workers for refusing to submit to a drug test. The defendant union took the matter to arbitration, pursuant to its colleсtive bargaining agreement with the company, and won. The company brought suit under section 301 of the Tafb-Hartley Act, 29 U.S.C. § 185, to set aside the arbitrator’s award; lost; and appeals, arguing that the arbitrator, rather than interpreting the agreement, in effect rewrote it; but conceding as it must that as long as the arbitrator was interpreting the parties’ contract rather than basing dеcision “on some body of thought, or feeling, or policy, or law that is outside the contract,”
Ethyl Corp. v. United Steelworkers of America,
The collective bargaining agreement states that “where the Company has reasonаble cause to believe that an employee is under the influence of drugs ... the employee will be required to submit to a test of his/her urine and/or blood.... Refusal by an employee tо consent to a test for the presence of drugs ... or to otherwise fully cooperate in an investigation involving drugs pursuant to this policy will constitute insubordination and result in immediate termination.” After receiving anonymous phone calls accusing an employee named Cox of trafficking in illegal drugs, and observing him at meetings in which he appeared to be under the influence of drugs, the company’s director of human resources, Vandermale, decided there was reasonable cause to require Cox to take a blood or urine test for drugs. But to mаke assurance doubly sure he had the outside of Cox’s car, and the area of the foundry in which Cox (though others as well) worked, swept by a machine that detects drugs by contact with any surfaсe that contains drug residue. This “environmental” test detected cocaine in both *862 places swept, whereupon Vandermale asked Cox to submit to a blood or urine test plus an environmental test of the outside of his clothing. Upon his refusing, the company fired him for failing to cooperate in an investigation involving drugs.
The arbitrator interpreted the passage we quoted from the collective bargaining agreement to permit the company to require an employee to take a urine or blood test for drugs only if there is reasonable сause to believe him under the influence of drugs at the very moment he is asked to take it; and the company concedes that it had no reason to believe Cox under the influence of drugs at the momеnt Vander-male asked him to submit to the tests. The arbitrator’s interpretation of the collective bargaining agreement is narrow, literalistic, and quite possibly wrong, especially when onе considers how dangerous foundry work is and how dangerous therefore a foundry worker high on cocaine is to himself and his fellow workers. A blood or urine test based on reasonable cause to believe that a worker is an intermittent user of cocaine though not necessarily under its influence at the instant he was asked to take the test — no one is under the influence of drugs all the time — would be a reasonable safety measure, since it would detect recent use, indicating a nontrivial probability that the worker is sometimes high at work.
But the fact that the arbitratоr chose to interpret the parties’ agreement literally (more precisely, adopted the narrowest possible literal meaning, for it would have done no violence to the text to interpret “is under the influence” as denoting intermittent use over a longer period than the instant at which the worker is asked to take the test), ignoring contextual factors that рointed to the wisdom of a somewhat broader interpretation, hardly shows that he was not really interpreting the agreement but instead was off on a frolic of his own, disregarding the contract in favor of his own views of labor relations or workplace safety. Of this there is no indication in his long and careful opinion.
The company indulges in paradox in attacking the opinion as
too
literal; we are cited to no cases in which an attack based on such a ground has succeeded. For while literal interpretations are often wrong (as we noted recently in
Beanstalk Group, Inc. v. AM General Corp.,
It is not as if the collective bargaining agreement had contained a rule of interpretation requiring loose interpretation — -had, for example, instructed the arbitrator to “interpret the company’s drug policy broadly in light of the safety concerns that actuated it,” as in such cases as
Schacht v. Beacon Ins. Co.,
Whereas commercial arbitrators frequently choose literalism, Lisa Bernstein, “Private Commercial Law in the Cotton Industry: Creating Cooperation Through Rules, Norms, and Institutions,” 99
Mich. L.Rev.
1724, 1735 (2001); Bernstein, “Merchant Law in a Merchant Court: Rethinking the Code’s Search for Immanent Business Norms,” 144
U.Pa.L.Rev.
1765, 1769-70 (1996), labor arbitrators generally prefer lоose interpretation. See, e.g.,
Tice v. American Airlines, Inc.,
In the district court and again in this court, the company argues that the arbitrator’s really serious mistake was in overlooking its argument that Cox’s refusal to submit to a nonintrusive environmental search of his clothing was a failure to cooperate in the investigation of his drug use and that the failure provided cause for his termination. The arbitrator did not mention the argument and we are reasonably certain that it was not made to him. The company claims to have made it in its brief to the arbitrator, but the union vociferously denies this and the company failed to make the brief a part of the record either in the district court or in this court and so has disarmed itself from rebutting the finding of waiver on the basis of what the brief contаined. So far as we can determine, the only issue before the arbitrator was whether the company had reasonable cause to believe that Cox was under the influence of cocaine, an issue the arbitrator resolved against the company by his narrow but permissible interpretation of “is under the influence.” That refusing to submit to the environmental test of his clоthing violated Cox’s duty of cooperation was hardly an argument that the arbitrator was likely to tumble to on his own. Not only or mainly because it was not the arbitrator’s business to repair the сompany’s forensic omission, and because the collective bargaining agreement contains no reference to environmental tests, and because the test in question is nоt obviously less intrusive than testing a urine sample. But also and more important because the company hadn’t offered Cox the option of taking just the environmental test. It had insisted that he take a blood or urine test as well, which, under *864 the arbitrator’s interpretation, he was entitled to refuse to do without being punished for his refusal.
AFFIRMED.