Misco, Inc. v. United Paperworkers International Union, Afl-Cio, and Quachita Local 654

GEE, TATE, аnd Before HIGGIN- BOTHAM, Judges. Circuit GEE, Judge: Circuit a today’s case we review determina- court that the award by district tion pub- an contravenes well-defined policy and hence should not be enforced. lic opinion perhaps most In the course of whimsical,1the kindly arbitra- described facts, following among oth- tor noted the ers, by he as established the evidence that griev- employer’s plant, The where heard. worked, Cooper drug drink- ant hаd a particular, night ing problem. shift member, experi- which problems production and accu- enced with by day At racy shift. not encountered meeting pur- for called emphasized its pose, employer policy against possession or use of strong premises. on its drugs or alcohol long-standing employer’s was aware onto against bringing such substances rule plant consuming them there. premises or job unusually Cooper’s operate was to a slitter-rewin- dangerous machine called by der, rolling paper cuts coils which which had sharp blades and means Operating such injuries. caused numerous a machine with and coordination by creates impaired substance abuse operator and to other safety hazard to repri- Urann, Metairie, La., Cooper had twice employees. H. M. Robert Mark Brooks, shoddy, for inattentive work—the Paperwоrkers Intern. Un- manded United Nashville, Tenn., employer might be ion, very type the believed defendants-appel- for time such abuse—the last attributable to lants. outset, president of standing it was directed opinion exam- observes its for super- parties production ple: company, "The Arbitrator informed assisted another, This a Creek American Indian.” curious the em- he is he At concludes visor. reasoning. by equally curious item is matched for discharge ployer’s immediate example, point, the arbitrator criti- one for At because another drug use was not reasonable having investiga- for cizes the ground discharge unauthorized stated Cooper’s incident "some conducted tion reading duty. official," higher, Company notwith- detached day leading to his with pay, seniority, before the events full back and so forth.2 court, discharge. The district in main reliance on our in Amalgamated decision Meat Cutters v. 21, 1983, question, January day theOn Co., Great (5th Western Food 712 F.2d 122 police searched home under a Cir.1983), set aside the arbitrator’s award warrant, finding bags marijuana, several against as well-defined public policy—the marijuana cigarettes, cigarette papers, and law against possession Louisiana of mari- weighing being a scale. While this was juana policy, embodied in the done, police Cooper’s another officer had rule, employer’s against introduction of plant automobile under surveillance on the drugs into place the consequent work and parking p.m., during lot. About 6:30 shift operation dangerous by machinery per- hours, working Cooper companions and two sons under their influence. plant out the came and two or more of the three entered In Amalgamated car momentari- Cutters, Meat a driver ly. The thrеe then walked a short who having distance admitted drinking been time employer’s another car and entered it. Some his wrecked truck and was con- later, the other men the sequently discharged. arbitrator, two returned to in plant, leaving Cooper sitting in the back an award reminiscent of the one we con- apprehended seat the car. He there template today, ordered his reinstatement by police, marijuanа with smoke in air the the employer disprove because failed to lighted a marijuana cigarette and in the his satisfaction the driver’s claim that tray. front-seat ash equipment failure the caused wreck. As noted, the district court speaking Amal- say refused to who had with been in gamated opinion its today’s in case: car, persistently him in the denied that he The district court enforced the arbitra- using drug although had been the found — tor’s award and the Fifth Circuit re- breathing its smoke—and at the arbitration versed. The appellate basis of the hearing falsely (so testified under oath the ruling was found) court’s that the arbitrator’s arbitrator that he had not in public policy award violated “the pre- apprehended standing when but people venting drinking from parking in the A and driv- elsewhere lot. search of ing____” Amalgamated Cutters, on his own car the lot revealed a plastic supra, at сontaining residue, 125. The court specifically scales case although found that sufficiently did not this know discharged last when it him. well defined and pol- On these definite because the facts, unaccountably reciting icy against driving that “the drunk is “embodied in law, Company proved by any has not applicable regulations, level of case law, statutory sense____” pure evidence that Grievant was violation and common Rule,” reaching arbitrа- Id. this deci- [substance abuse] sion, tor directed reinstatement of the court noted: baffling only This view of evidence that with thing would as treats established: "The probably ease have a sustained civil verdict Company proven that the has is Griev- perhaps partially a criminal conviction is ex- sitting ant was back a seat of car which that, plained by the circumstance his aca- marijuana cigarette there was found lita in the degrees, training demic formal of the arbi- ashtray____” front seat trator, Fox, Jr., engi- a Dr. Milden J. was as an that, passing although lacking per- We note lawyer. especially as a neer He seemed matters, experience sonal we such impressed, example, the fact that there thought knowledge it common that the narcotic testimony anyone was no direct in the car simply effect of can be obtained light where was found was seen to a sitting ain small enclosure where smoke from it cigarette, and “it have would been difficult for present. is It is not clear from the record surveilling not to have [the officer] seen some- closed, whether or not the car windows were light cigarette____” one a We can view given that the incident occurred on an quoted phrase indicating but — doubt about wheth- evening January a infer- in late reasonable lighted cigarеtte er there indeed was a in the —it they ence car, were. writing portions which in other of his began, but the real issue this case prac- motorists where In a nation highways, company no citation not when the learned of the tically live required incident, to establish authority is whether reinstatement ordering a award point. this appropriate an arbitration the road to reinstate an over Judge Stagg agree with that Amal- We drinking duty caught driver truck controls this case. Meat Cutters gamated impairs Alcohol public policy. violates or not the In it held that whether wreck we coordination, and inhibits person’s by the ad- question was caused driver’s rationally. Inges- ability to reason consumption spirits job, mitted It the reflexes. of alcohol slows tion the arbitrator’s award in this enforce “[t]o response It slows drowsiness. induces compels the rein- an award which stimuli. It dulls time to external driving truck driv- statement to duties recognition of alcohol’s un- In senses. admittedly duty, drank on er who while characteristics, debilitating disputedly public policy.” violate ... would prohibits in the union driv- every state employer’s procedural Thus the at 125. A driver its influence. ing while under as to rule out mechanical failure omission spirits endangers not who imbibes proximate simply wreck cause life, the health and his own only did not matter. These con- safety оf other drivers. all convincing enough with are siderations case, although Cooper de today’s In drivers of automobiles. respect to it, contrary nied the arbitrator found that — compelling They even more become Cooper’s testimony was to untruthful —he employed regularly is when the driver premises in an apprehended company in highways to a massive course marijuana smoke in atmosphere of anoth rig. tractor-trailer marijuana er’s was found in 124. Id. at company pertinent The own car on the lot. intoxicat same can said of the be rule, company promulgated pursuant to a Similarly, marijuana. ing effects agreement provision bargaining collective piece of industri operator dangerous of a rules,3 permitting impose present can said to equipment al be heading FOR provides, under the CAUSES danger to himself and to his cо-em same DISCHARGE: ployees operator of a tractor-trailer intoxicants, narcotics, or con- Bringing rig motorists. The Union does to fellow into, consuming in- trolled substances or argues Amalgamated that Meat Cutters toxicants, narcotics or controlled ‍‌‌​‌​​​‌‌​‌‌​​‌​​‌​‌‌‌​‌​‌​​​‌​‌‌‌‌‌​‌‌‌‌​​‌​‌​​‍sub- distinguished can from the instant be plant, plant premis- stances in the or on employee driving the truck case that Reporting influ- duty es. for under the having admitted consumed alcohоl before intoxicants, narcotics, or con- ence of It true that has the wreck. trolled substances. dusing bringing or consistently denie The rule no distinctions draws between premises; Misco’s none marijuana onto nor quantities,” “usable “residue” and theless, findings of fact Yet, violat- although Cooper need it do so. plastic clearly that the brown indicate it, at ed the award directs his reinstatement car contained case found cоn- This is fact, work on the slitter-rewinder. Notwithstanding this marijuana. Cutters, it, trary Amalgamated from and the inferences be drawn that the driver finding which there was no found that still drunk, taken drink only he had that reinstated. It is true that the should be rules, plant adopting job. of the officer’s on the company did not know de- narrowly limited to discovery shortly employer arbitration not until before disciplinary regulations bargaining agree- plant and/or portion rules or A of the collective ____” practices; right management the procedures, policies “to uni- ment reserves laterally establish, modify, and enforce nouncing already award, acts made criminal he time entered his it is doubtful minimum, may, adopt at a law but reason- be award should today enforced prophylactic going beyond able measures light of what now known. examples, it

the statutes. As we think of the district court de- scarcely opеn to doubt rules forbid- clining to do so is drug ding paraphernalia the introduction of AFFIRMED. plant (with premises onto without the (loaded drugs) accompanying or firearms TATE, Judge, dissenting. Circuit not) would be valid—and the former expression valid of the which we respectfully I dissent. Despite the bril- so, have If it discussed. follows a rule liant caricature the majority lay forbidding premis- plant the introduction on decision, arbitrator’s opin- arbitrator’s any quantity es of whatever squarely ion . decides the arbitral issue equally be so. would presented Cooper, discharged —whether employee, today’s focusing had been wrongfully The arbitrator discharged chiefly sitting in a conception on his of “industrial car in which due another em- process,” great ployee part smoking marijuana, ruled for for the al- leged because the it did time violation a rule prohibited discharged him know of the resi- himself from bringing оr consum- due that he undeniably brought ing marijuana onto the plant premises —and plant parking ruling lot. That his in squarely finds that himself had not the teeth of the other evidence recited we company violated the rule. belabor, need not further is not the Essentially questioning these arbitral

point. findings, majority the nevertheless it finds Rather, against public it to policy is that his narrow be focus to enforce this procedural rights support has led him arbitral award. In holding, of this directing to an majority enter award the the not upon to relies its dis- put Cooper operating agreement back to reasoning, a hazardous with the arbitrator’s machine, dangerous upon to himself to it also relies and oth the circumstance ers, at a time when a marijuana the arbitrator knew that non-usable trace of had that in fact brought drugs been found employee’s onto on scale in the car premises, (for company charges violation of Louisiana which no criminal had ever clearly-stated filed) law and of a company fact employ- rule. unknown to the —a public policy today er involved is the at the time of discharge, the and one same as that Amalgamated we relied on in which the arbitrator found to be inadmissi- against post-hoc Meat Cutters: one ble operation justification of for the dis- dangerous persons machinery by charge under the that was based on another cause (aside drugs influence of Gazing or alcohol. from the issue of whether a non-usa- tree, forest, (verifiable marijuana and oblivious of the ble trace as such by an only microscopic analysis) has entered award that or chemical plainly contrary employee’s to serious and well-found constituted a violation of public poliсy. ed against bringing rule marijua- premises). na on the employer’s

Such award overrides the attempt protect safety employ- of its their majority zeal to what correct ees, including Cooper, in the name safe- is a feels mistaken and misreasoned arbi- guarding Cooper’s decision, procedural my abstract tration conscientious brethren rights against fear, (for determination the em- I majority, of the have ‍‌‌​‌​​​‌‌​‌‌​​‌​​‌​‌‌‌​‌​‌​​​‌​‌‌‌‌‌​‌‌‌‌​​‌​‌​​‍reasons to ployer below) that the parts ignored arbitrator knew was fact be stated in I II and true: that Cooper bring did controlling principles extremely onto lim- employer’s premises. Indeed, even permissible judicial ited review such awards, the arbitrator not extremely known that fact at the limited circum- 744 failing how,

ples. ment of them. tween favoring detailed ing contractual tion awards pute-resolution ments. will ion does courts of stancеs attempt brilliant management and Perhaps too my not discuss apply them this greater which courts flouts view, set them forth Absorption resolution under judicial power plausible lengthily, national arbitration employees and may majority erred to review arbitra- monitoring of dis- governing into the federal majority case. deny enforce- disputes be- and to state therefore, I princi- agree- favor- opin- dis- AFL-CIO, policy.” Amalgamatеd Meat Butcher material for with the arbitrator’s ern Food enforce essence instead, For these award agreement, ^[2] (5th Cir.1983) (citations omitted). Thus, ... dispute the arbitral we think whether from the collective purposes, Workmen of Company, Local the court would violate arbitrator’s or was not purposes ^[3] Union 540 we are inclined to they decision did not draw its ... enforcement the arbitrator’s factual ‘arguably rulings are award unlеss North America judicial strained, Cutters Great West- 122, arbitrable,’ bargaining whether, review. 123-24 agree “[1] im- finding is conclusive on courts that I. possess did or use judicial principles by which settled Under plant premises, bring onto them. it "sharply awards review of arbitration 59, circumscribed”, Interna- Local Union II. Electrical Workers tional Brotherhood of In its refusal to enforce the arbitrator’s F.2d Corporation, v. Green award, disregard the district court did not (а) (5th Cir.1984), question cannot we Rather, principles. it to af- these refused of the evi- arbitrator’s factual evaluation judicial ford enforcement the arbitra- proving as not that Coo- dence him before ground that its enforce- tor’s award possessed marijuana on the per or used contrary public policy, a ment would be (b) interpre- plant premises, holding majority. In so affirmed provision as tation of the contractuаl not only upon doing, district court relied grounds discharge Cooper if providing for re- evidence that the arbitrator had someone was in a vehicle where else to that in fused consider: (c) marijuana, or smoking lot plant’s parking had been found ruling unknown to procedural that evidence plastic containing gleanings de- brown case discharge, the time of the employer at termined, (eight laboratory analysis him, subsequently discovered later) marijuana. to be district months probative the issue before the arbi- ‍‌‌​‌​​​‌‌​‌‌​​‌​​‌​‌‌‌​‌​‌​​​‌​‌‌‌‌‌​‌‌‌‌​​‌​‌​​‍not of possession this of court concluded at trator as to whether the time of a violation marijuana not constituted contractually discharge employer had company’s of also of “the law but criminal Id., discharge Cooper. citing to valid cause into of intoxicants barring rule introduction quoting from the Trilo- Steelworker’s designed rule thаt place the work —a United America v. gy: Steelworkers public policy against of unsafe effectuate the Co., Manufacturing American 363 U.S. equipment by a worker operation heavy of 1343, 564, (1960); 4 L.Ed.2d 1403 80 S.Ct. impaired by in- judgment has been whose v. United Steelworkers America Warn- toxicating substances.” Co., 574, Navigation 363 U.S. 80 er & Gulf pro in the arbitration Had the evidence 1347, (1960); 4 1409 L.Ed.2d United S.Ct. clearly possession of usable ceeding shown Enterprise America v. Steеlworkers of plant premises, its use on the marijuana or 593, Corp., U.S. 80 and Car 363 Wheel majority’s char court’s the district 1358, (1960). 4 1424 S.Ct. L.Ed.2d reasons for public policy acterization may would be that courts of the award These decisions hold non-enforcement However, although undoubt findings persuasive. review factual arbitrator’s supports non- public policy reason edly a merit and that courts must determinations

745 prohibited), (legally public use no аward policy,” violates 712 F.2d at authority 124, cited to public policy us that an but nevertheless denied enforcement marijuana or in of “the case, who uses alcohol arbitrator’s award this off-duty unemployable hours is compels award which the reinstatement subject discharge driving without more for such duties of a truck driver who admit- use; non-employment-related tedly however con drank on duty,” ground while on the might off-duty demnable we feel is suсh that enforcement would violate the well employee. Cf., e.g., public policy conduct defined preventing Johns- “of people Corporation drinking driving,” Mansville Sales v. Interna from 712 F.2d at Machinists, tional Association Local 125. 1609, (5th Cir.1980) Lodge 756 In Amalgamated Cutters, the arbi- (enforcing ordering arbitrator’s award that specifically trator had found that the dis- of employees discharged reinstatement for charged (involved truck driver in an acci- smoking property, despite re eighteen-wheel dent in which his rig had jected public argument policy smoking overturned) drinking had been trip on the increases health hazards in the work envi driving (The while his truck at work. arbi- ronment). trator had nevertheless ordered reinstate- ment, In W.R. Company ground Grace and Local employer that the 759, disprove Union International Union failed to steering that a mecha- Rubber, Cork, failure, United Linoleum and nism Plas- rather than the driver’s drink- America, 757, ing, accident.) tic 461 U.S. Workers had caused Distinguish- 2177, (1983), S.Ct. 76 L.Ed.2d 298 ably us, however, Su- from the case now before preme Court ordered enforcement of an in Amalgamated Meat Cutters the arbitra- decision, rejecting strong pub- arbitrator’s tor had specifically found that the truck policy arguments lic to enforce job engaged driver on the in hazard-creat- penalize award would ing its public policy cоnduct violation of prior compliance nevertheless, (although with earlier district on technical rea- (which sons, subsequently court the arbitrator had ordered reinstate- ment). appeal). ‍‌‌​‌​​​‌‌​‌‌​​‌​​‌​‌‌‌​‌​‌​​​‌​‌‌‌‌‌​‌‌‌‌​​‌​‌​​‍been reversed on The Court agreed that “a may court not enforce a present In the the enforcement of bargaining agreement collective that is con- not, the arbitrator’s award would under the trary public policy” and that “[i]f principles extremely judicial limited in- interpreted by contract as [the arbitrator] regard with tervention to arbitration explicit public policy, violates some we are awards, “against violate the obliged to enforcing refrain from it.” 461 operation unsafe heavy equipment

U.S. at In rejecting S.Ct. workers whose had been im- public-policy-based enforcement, denial substances,” paired by intoxicating relied that, public pоlicy the Court stated rea- upon by the district court. The evidence of justify judiciary deny sons en- marijuana traces found in arbitration, public poli- forcement of either does establish used cy dominant, “must be well defined and performing while work for Mis- ‘by and is to be ascertained reference to co judgment during or that his work was legal principles laws and and not from impaired by intoxicating substances. The general supposed public considerations of found, moreover, ” interests.’ Id. possessed, neither nor used nor was under finding present of,

In case that influence at work. And public policy justified car, exception denial of in Cooper's traces found even if judicial arbitrator, not, enforcement considered would award, (as more, result, major- the district court does the contrary any without lead to a ity) principally upon relied than Amalgamated empty employ- more beer can Cutters, supra. prove Meat which we noted er’s ear he had would drinking premises court should exercise extreme on the work rather than “[a] declaring caution before that an arbitral elsewhere. Cutters, supra,

Amalgamated distinguishable. dis- clearly

thus actually con- there

charged employee job as a performing his

suming while liquor would there- Reinstatement

truck driver. public against

fore have violated driving. In this how-

drinking while possession marijuana

ever, though even policy, La.Rev.Stat. public see

violates say 40:966(D), that rein- we cannot

Ann. § of an whose car

statement non-employment-related traces found

were any de- violate “well marijuana would public policy against

fined and dominant” the influence of mari-

using being under

juana while work.

Conclusion therefore, I assigned,

For the reasons of settled

respectfully dissent. violation ‍‌‌​‌​​​‌‌​‌‌​​‌​​‌​‌‌‌​‌​‌​​​‌​‌‌‌‌‌​‌‌‌‌​​‌​‌​​‍limiting judicial intervention in

principles through resolution ar-

employment-dispute refusing

bitration, majority errs

accept facts of non-violation found arbitrator, disagrees it simply because reasoning, re-

with the arbitrator’s based

fusing enforce the arbitral award reasons of

upon purely rhetorical actually the facts found

policy beyond

the arbitration record. HENRY, Plaintiff-Appellant, A.

Sharon

Cross-Appellee, INDUSTRIES, INC.,

LENNOX

Defendant-Appellee,

Cross-Appellant. 84-3523,

Nos. 84-3577. Appeals,

United States Court of

Sixth Circuit.

Argued June 29,1985. July

Decided

Case Details

Case Name: Misco, Inc. v. United Paperworkers International Union, Afl-Cio, and Quachita Local 654

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 19, 1985

Citation: 768 F.2d 739

Docket Number: 84-4727

Court Abbreviation: 5th Cir.