1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-11-1996

Exxon Shipping Co. v. Exxon Seaman's Union

Precedential or Non-Precedential:

Docket 95-5027

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Recommended Citation

"Exxon Shipping Co. v. Exxon Seaman's Union" (1996). 1996 Decisions. Paper 243.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/243
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

No. 95-5027 

 

EXXON SHIPPING COMPANY, 

 Appellant

v. 

EXXON SEAMAN'S UNION 

 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. No. 93-cv-00689) 

Argued September 11, 1995 

Before: Before: SLOVITER, Chief Judge, ALITO, Circuit Judge and 

RENDELL, District Judge298

(Opinion Filed January 11, l996) 

Richard R. Cerbone (Argued) 

Carlin, Maddock, Fay & Cerbone 

Florham Park, NJ 07932 

Douglas B. Neagli 

Exxon Company, U.S.A. 

Houston, TX 77002 

Patrick J. Conlon 

Joseph T. Walsh, III 

Exxon Company, U.S.A. 

Florham Park, NJ 07932 

 Attorneys for Appellant 

David Grossman (Argued) 

Howard A. Goldberger 

 of Counsel 

Schneider, Goldberger, Cohen, Finn, 

Solomon, Leder and Montalbano, P.C. 

Kenilworth, NJ 07033 
 Attorneys for Appellee 

Peter A. Susser 

Littler, Mendelson, Fastiff, 

Tichy & Mathiason 

Washington, DC 20005 

 Attorney for Amicus-Appellant, 

 Institute for a Drug-Free Workplace 

 

OPINION OF THE COURT

SLOVITER, Chief Judge. 

 Exxon Shipping Company appeals from a district court 

order which declined to vacate and instead confirmed and enforced 

an arbitration award reinstating an Exxon employee who had been 

discharged for refusing to submit to a drug test. We will 

affirm. 

I.

 The collective bargaining agreement ("Agreement") 

between Exxon Shipping Company and Exxon Seamen's Union expired 

on August 31, 1987. After eight months of negotiating for a 

successor agreement, Exxon, in a letter sent on March 29, 1988 to 

all oceangoing employees, declared an impasse and advised the 

Union and its members that Exxon's final proposals would be 

implemented on April 1, 1988. 

 The March 29 letter stated that the terms of the new 

working relationship between Exxon and the Union would include, 

inter alia, the company's Drug and Alcohol Policy and any 

provisions of the expired Agreement that were not part of the 

negotiations. That "Policy Statement on Employee Alcohol and 
Drug Use," issued with the March 29 letter, contained the 

following language: 

Exxon Shipping Company may from time to time conduct 

unannounced searches for drugs and alcohol on owned or 

controlled property. The Company also has the right to 

require employees to submit to medical evaluation or 

alcohol and drug testing where cause exists to suspect 

alcohol or drug misuse. A positive test result or 

refusal to submit to a drug test is grounds for 

disciplinary action, including dismissal. 

App. at 44 (emphasis added). 

 Exxon amplified its Drug and Alcohol Policy in a letter 

sent to all oceangoing employees on September 27, 1988. Exxon 

explained it would be aggressively enforcing its Alcohol and Drug 

Policy and gave "official notice" that violation of the policy 

"will result in immediate termination from the vessel." App. at 

49-50 (emphasis in original). 

 One of the terms of the Agreement remaining in effect 

during the negotiations was a "Discipline" section, which stated 

that "there will be posted . . . a list of rules which shall 

constitute cause for which unlicensed personnel may be discharged

without further notice." App. at 147 (emphasis added). Included 

on this list was "[i]nsubordination, including failure or refusal 

to perform work assigned." App. at 128a. A provision of the 

Agreement providing for grievance and arbitration of disputes 

also remained in effect. 

 The case before us stems from Exxon's discharge of Alan 

B. Cash, a thirteen-year employee who started with Exxon as a 

seaman and advanced to chief pumpman. The duties of a pumpman 

include loading and unloading cargo and properly aligning pumps 
for the transfer of products. The parties do not dispute that it 

is a safety-sensitive position and is subject to Coast Guard 

regulations pertaining to drug testing. 

 On or about May 10, 1989, Cash was transferred from the 

Exxon Benecia in Japan to the Exxon Washington, anchored in San 

Francisco Bay. For the period of May 10-15, Cash resided in the 

second pumpman's room of the Exxon Washington. On May 15, the 

chief pumpman of the Exxon Washington vacated the ship and Cash 

moved into his room. On May 17, Exxon conducted an unannounced 

drug search of all the rooms of the Exxon Washington. Marijuana 

was discovered in various places in the chief pumpman's room 

which Cash had been occupying for the last day and a half. 

 As a result of the search, Exxon requested that Cash 

take a drug test. He refused. By letter dated June 6, 1989, 

Exxon discharged Cash, stating that he had violated Exxon's Drug 

and Alcohol Policy by refusing to submit to a drug test after 

reasonable cause for testing had been determined. The Union 

filed a grievance to protest Cash's discharge, and the dispute 

was eventually submitted to arbitration before an arbitration 

panel of three members, one appointed by Exxon, one by the Union, 

and the third a neutral arbitrator who acted as Chairman. 

 In an Opinion and Award dated November 27, 1992, the 

Chairman made the following factual findings: A "very small" 

amount of marijuana or marijuana residue was found in the cabin 

used by Cash as of May 17, 1989. This small amount was found in 

a number of places: green leafy material in a desk and cabinet; 

ash on the rug near the bed; seeds under the rug; and cigarette 
ends, or "roaches," in a pouch of a suitcase. App. at 91-92. No 

traces of drugs were found in the quarters Cash previously 

occupied. Cash was in the room in which marijuana was discovered 

for only one and a half days and for only a few hours daily 

during that period. A chief pumpman and another pumpman used the 

cabin before Cash moved into it, and other persons had access to 

the room because the door was left unlocked. Cash did not ask 

the utility men to clean his cabin because he did not want to 

interfere with their shore leave. 

 Despite the marijuana found in Cash's suitcase, the 

Chairman found "it is not reasonable to attribute, by clear and 

convincing evidence, ownership of the drug materials in the cabin 

to Mr. Cash." App. at 92. The Chairman noted that there were no 

drugs found in Cash's previous room and that it was unlikely that 

in his short time in the room he would have caused marijuana 

seeds to be under the carpet. Id. He also stated that "the cabin 

had not been cleaned at the time of the search, had been used by 

a number of persons in previous days, and was open to others." 

Id. The Chairman concluded that "[t]he circumstantial evidence 

certainly does not point to only the one logical conclusion that 

the material belonged to grievant," and therefore there was no 

"reasonable cause" under Coast Guard regulations to demand a drug 

test. App. at 92-93. 

 The Chairman next considered whether there was cause to 

test Cash under the company policy. He remarked that "[t]he 

matter of the suitcase is the weakest point of Mr. Cash's defense 

against the charge that he violated company policy by introducing 
marijuana into his cabin." App. at 93. Cash had stated at one 

point that his wife had purchased the suitcase for him but 

testified at the arbitration that he had acquired the suitcase on 

a previous ship. The Chairman noted, however, that no doubt had 

been raised that the suitcase was used before Cash obtained it, 

and "[t]he undiscovered cigarette ends could have been in the 

pouch no matter how the bag was obtained." Id. He added that 

"[n]o inference can be drawn from the presence of the other 

marijuana in the searched room that grievant put the `roaches' in 

the bag." Id.

 Finding the circumstantial evidence insufficient to 

prove that Cash possessed marijuana, the Chairman determined Cash 

could not be discharged for possession under a "just cause" 

standard. App. at 94. He concluded with the following passage: 

 We must come to an ex post conclusion about 

whether there was cause to order a drug test. On May 

17, 1989, in light of what Mr. Newman and his cohorts 

found, "cause" did exist. . . . The instant review of 

the findings concludes, however, that even though drug 

material was discovered in grievant's cabin, sufficient 

question was raised about ownership of the drugs so 

that "cause" "reasonable cause", "probable cause" or 

"just cause" did not exist to order a test. And Mr. 

Shearer's testimony established that Mr. Cash's 

appearance and actions provided no basis for ordering a 

test. 

 The chairman concludes that if Mr. Cash had taken 

the demanded drug test and then had grieved, a later 

arbitration would have found that lack of "cause" 

"reasonable cause" "probable cause" or "just cause" to 

have ordered a test on the basis of what was found in 

the cabin would have led to reversal of any discipline 

based on test results. This analysis of the findings 

of the search shows that a test could not have been 

ordered on the basis of what was discovered in the 

cabin. 

Id.
 The Chairman did find, however, that Cash was 

insubordinate in refusing to take the test, saying he "violated 

the fundamental rule that . . . employees must first obey an 

order and then grieve." App. at 95. Nevertheless, "since the 

order to take the drug test arose out of an incorrect evaluation 

of the meaning of the marijuana found in Mr. Cash's cabin, 

discharge for failure to accept the test is not possible." Id. 

The Chairman ordered reinstatement with full seniority but 

without back pay. 

 The opinion was that of the Chairman of the Arbitration 

Panel. The Panel's award was issued by the neutral chairman and 

the Union appointed arbitrator who concurred with the award. The 

Company appointed arbitrator dissented. 

 Exxon filed suit in district court pursuant to section 

301(a) of the Labor Management Relations Act, 29 U.S.C. § 185, to 

vacate the arbitration award on the following two grounds: 1) 

that enforcement of the award would violate public policy; and 2) 

that the arbitration panel exceeded its authority by reinstating 

Cash. Both parties moved for summary judgment. The district 

court granted the Union's motion. The court found that because 

neither Exxon's policy nor the Coast Guard regulations mandate 

dismissal of an employee who refuses to submit to a reasonable 

cause test, Cash's reinstatement did not violate public policy. 

The court also found that the arbitrator acted within his 

authority in determining that cause did not exist to discharge 

Cash. Exxon timely filed a Notice of Appeal. 
 We have jurisdiction over the district court's grant of 

summary judgment under 28 U.S.C. § 1291. Our review is plenary, 

and we apply the same standard the district court should have 

applied in reviewing the arbitration award. Stroehmann Bakeries, 

Inc. v. Local 776, Int'l Bhd. of Teamsters, 969 F.2d 1436, 1440-

41 (3d Cir. ), cert. denied, ___ U.S. ___, 113 S. Ct. 660 (1992). 

II. 

 In its argument that the trial court's order should be 

upheld, the Union emphasizes the favored treatment given 

arbitration awards in the courts. The Supreme Court has 

frequently cautioned courts of the extremely limited role they 

play in reviewing the decision of an arbitrator. See United 

Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 36 (1987). 

It has said that "[t]he refusal of courts to review the merits of 

an arbitration award is the proper approach to arbitration under 

collective bargaining agreements. The federal policy of settling 

labor disputes by arbitration would be undermined if courts had 

the final say on the merits of the awards." United Steelworkers 

v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596 (1960). Thus, 

we must enforce an arbitration award if it is based on an 

arguable interpretation of the collective bargaining agreement, 

and we may only vacate an award if it is entirely unsupported by 

the record or if it reflects a "manifest disregard" of the 

agreement. News America Publications, Inc. v. Newark 

Typographical Union, Local 103, 918 F.2d 21, 24 (3rd Cir. 1990). 

 On the other hand, under an exception to the general 

rule, a court may vacate an award if it violates a "well defined 
and dominant" public policy, discerned "'by reference to the laws 

and legal precedents and not from general considerations of 

supposed public interests.'" W.R. Grace & Co. v. Local Union 

759, 461 U.S. 757, 766 (quoting Muschany v. United States, 324 

U.S. 49, 66 (1945)); United Trans. Union Local 1589 v. Suburban 

Transit Corp., 51 F.3d 376, 381 (3d Cir. 1995). Application of 

the public policy exception requires a two step analysis. The 

threshold question is whether a well defined and dominant public 

policy can be identified. If so, the court must determine 

whether the arbitrator's award, as reflected in his or her 

interpretation of the agreement, violated the public policy. 

Exxon relies on the public policy exception on this appeal, 

contending that in this case both questions should be answered in 

the affirmative. 

A.

 Exxon argues that the arbitrator's reinstatement of 

Cash following his refusal to submit to a drug test was contrary 

to the well defined public policy against the operation of common 

carriers by individuals impaired by drugs or alcohol. This court 

has twice recognized such a policy in cases involving Exxon 

seamen. Exxon now asks us to complete a "trilogy" by finding 

that reinstatement of an employee in a safety-sensitive position 

who refuses to submit to a chemical test violates that public 

policy. 

 We first identified a broad public policy against 

permitting an individual to operate a vessel while under the 

influence of drugs or alcohol in Exxon Shipping Co. v. Exxon 
Seamen's Union, 993 F.2d 357 (3d Cir. 1993) [hereinafter Exxon 

I], which arose after an Exxon oil tanker ran aground. Helmsman 

Morris Foster was among the crew given a drug and alcohol test 

under Coast Guard regulations and Exxon's Alcohol and Drug Use 

Policy. Exxon fired him on the basis of its drug policy when he 

tested positive for marijuana. The arbitrators decided that 

suspension was a more appropriate penalty than discharge, noting 

that there was insufficient evidence indicating that Foster had 

used drugs at work and that Foster had passed the Coast Guard 

drug screening level, which was higher than Exxon's. Id. at 359-

60. 

 The district court vacated the award, and we affirmed, 

finding that the award requiring reinstatement violated "a 'welldefined and dominant' public policy against the operation of a 

vessel under the influence of drugs or alcohol" reflected in the 

Coast Guard regulation. Id. at 362 (quoting W.R. Grace, 461 U.S. 

at 766). We referred to one regulation requiring that 

individuals testing positive for drugs "shall be denied 

employment . . . or removed from duties which directly affect the 

safety of the vessel's navigation or operations," 46 C.F.R. 

§16.201(c) (1990), and another prohibiting those individuals from 

returning to work aboard a vessel unless rehabilitation is shown, 

id. § 16.370(d) (1990). 993 F.2d at 364. We concluded that the 

purpose of the Coast Guard regulations would be undermined and 

their deterrence function undercut by the reinstatement of 

Foster. Id.
 We also noted that his reinstatement would be 

inconsistent with public policy as identified by other courts 

that had vacated arbitral awards reinstating operators of common 

carriers discharged for drug or alcohol use. See, e.g., Delta 

Air Lines, Inc. v. Air Line Pilots Ass'n Int'l, 861 F.2d 665 

(11th Cir. 1988) (vacating arbitration award reinstating a pilot 

who flew a passenger airplane while under the influence of 

alcohol), cert. denied, 493 U.S. 871 (1989); Amalgamated Meat 

Cutters and Butcher Workmen v. Great Western Food Co., 712 F.2d 

122 (5th Cir. 1983)(vacating award reinstating tractor-trailer 

driver after he overturned company truck while intoxicated). 

 In holding that the arbitrators' award requiring 

reinstatement would violate public policy we declined to accept 

the union's argument that the public policy exception to 

enforcing an arbitrators' award could only be applied when the 

award contravened a rule of positive law. We found the broader 

test adopted by most of the circuits to be "the sounder 

approach," 993 F.2d at 363, and noted that "the contours of 

positive law are broad enough to include not just specific rules 

or prohibitions but also the stated purposes behind the rules and 

prohibitions." Id. at 364. We thus held that the award 

reinstating Foster "violates the public policy protecting the 

public and the environment against operation of vessels by drug 

users." Id.

 We identified a similar public policy in Exxon Shipping 

Co. v. Exxon Seamen's Union, 11 F.3d 1189 (3d Cir. 1993) 

[hereinafter Exxon II]. Seaman Randall Fris was observed in an 
impaired condition when he reported back one evening to the Exxon 

Long Beach tanker. He was discharged after a breathalyzer test 

disclosed a blood-alcohol level in violation of both the 

company's alcohol policy and Coast Guard regulations. The 

arbitration panel found that Fris had been intoxicated when he 

boarded the ship but concluded, over the dissent of the company 

representative, that in light of Fris' good record he should have 

been given an opportunity to demonstrate that his intoxication 

was an aberration. It thus reinstated Fris with a 90-day 

suspension. Once again the district court vacated the award, and 

we affirmed. 

 We held in Exxon II that there is a well defined and 

dominant public policy "that an owner or operator of an oil 

tanker should not be compelled to reinstate to a `safetysensitive' position an individual who has been found to be 

intoxicated while on duty on that vessel." Id. at 1194. We 

noted that under Coast Guard regulations, a crew member who is 

intoxicated while on duty is guilty of a crime under 33 C.F.R. 

§95.055 (1993). Marine employers are prohibited from allowing an 

intoxicated individual to "stand watch or perform other duties," 

id. § 95.050(b), and must exercise "due diligence" to see that 

the regulations concerning intoxication are not violated, id.

§95.050(a). 11 F.3d at 1194-95. We emphasized the potentially 

disastrous environmental consequences of an oil spill, and noted 

that statutes such as the Clean Water Act, 33 U.S.C. § 1251 et

seq., and the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et

seq., evidence a Congressional policy of protecting the 
environment against oil spills in waters under federal 

jurisdiction. 11 F.3d at 1194. We also noted that Exxon faced 

potential civil and criminal liability if an impaired Exxon 

employee caused an accident. Id. at 1195. Consequently, we 

concluded that the federal policy favoring settlement of labor 

disputes by arbitration must yield to the "well defined and 

dominant policy that owners and operators of oil tankers should 

be permitted to discharge crew members who are found to be 

intoxicated while on duty." Id. at 1196. 

 It is in light of our two previous Exxon cases that 

articulate a strong public policy against the operation of oil 

tankers and common carriers by crew members who are under the 

influence of drugs or alcohol that we turn to the somewhat 

different fact posture presented by this appeal. 

B. 

 Exxon argues that reinstatement of an employee who 

refuses to submit to a drug test upon a showing of reasonable 

cause violates the public policy identified in Exxon I and Exxon 

II because it undermines enforcement of the Coast Guard 

regulations and other laws animated by that policy. Exxon does 

not argue that Cash's refusal to take a drug test under these 

circumstances violated any positive law. In both Exxon I and 

Exxon II we acknowledged that another court of appeals had held 

that an arbitration award could be overturned only when its 

enforcement would cause a violation of positive law, see

Northwest Airlines, Inc. v. Air Line Pilots Ass'n Int'l, 808 F.2d 

76, 83-84 (D.C. Cir. 1987), cert. denied, 486 U.S. 1014 (1988); 
American Postal Workers Union v. United States Postal Serv., 789 

F.2d 1, 8 (D.C. Cir. 1986), whereas others have opted for a 

broader approach that authorizes vacating an award that is 

"inconsistent with some significant public policy," E.I. DuPont 

de Nemours & Co. v. Grasselli Employees Indep. Ass'n, 790 F.2d 

611, 616 (7th Cir.)(quoting Robert A. Gorman, Basic Text on Labor 

Law 597 (1976)), cert. denied, 479 U.S. 853 (1986); see also

United States postal Serv. v. American Postal Workers Union, 736 

F.2d 822, 824 (1st Cir. 1984). In United Paperworkers 

International Union v. Misco, Inc., 484 U.S. 29 (1987), the 

Supreme Court considered the breadth of the public policy 

exception but declined to resolve this split. 

 In favoring the broader approach in Exxon I, we stated 

that "the distinction between an award which violates a 

manifestation of positive law and an award which is `inconsistent 

with public policy' is often blurred." 993 F.2d at 363. We 

reasoned that "[w]here the `positive law' is a stated purpose 

behind a statute or regulation, to thwart the purpose is to 

`violate positive law.'" Id. at 364. In Exxon II, we clarified 

that in the earlier case we had "expressly rejected" the argument 

that an arbitration award may only be set aside when its 

enforcement would violate a specific "positive law." Exxon II, 

11 F.3d at 1192. Accord United Transp. Union Local 1589 v. 

Suburban Transit Corp., 51 F.3d 376, 381 (3d Cir. 1995). 

 The Union, although acknowledging that we opted for a 

broader reading of the public policy exception in Exxon I and II, 

argues that notwithstanding our broad language in those cases we 
cited to and relied on positive law. It notes that whereas 

reinstatement of the particular employees at issue in Exxon I and 

II would have violated specific Coast Guard regulations or placed 

Exxon in jeopardy of facing civil and criminal liability, there 

is no regulation or statute that punishes the refusal of an 

employee to submit to a drug test that is based on "reasonable 

cause." It differentiates the Coast Guard regulations that apply 

to post-accident testing, where the refusal to submit "could 

subject the individual to suspension and revocation proceedings . 

. . and removal from any duties which directly affect the safety 

of the vessel's navigation or operations," 46 C.F.R. § 4.06-5(c) 

(1994), from those applicable to an employee who refuses to 

submit to reasonable cause drug testing, which only require the 

employer to enter the seaman's refusal in the vessel's official 

logbook, if such a book is required, id. § 16.250(d). Thus, the 

Union contends the regulations do not manifest a public policy 

that would prevent reinstatement of an employee who refuses to 

submit to a reasonable cause drug test. 

 The district court relied on this distinction to find 

that reinstatement of such an employee would not violate public 

policy. Exxon argues that in fact the Coast Guard regulations do 

provide the possibility of a more stringent sanction for refusal 

to undergo reasonable cause testing, but in our view of the issue 

we need not resolve that dispute. To the extent that the 

district court held that the parameters of public policy were 

limited by the extent to which the Coast Guard regulations impose 

a penalty, it misconstrued our holdings in Exxon I and II. In 
fact, in Exxon I, Foster's drug test was negative when evaluated 

at the Coast Guard screening level, and thus Coast Guard 

regulations did not require that his license be revoked. 993 

F.2d at 358, 361. Nevertheless, we found that his reinstatement 

would violate the public policy underlying those regulations. Id.

at 364. 

 A clearly defined and cautiously administered program 

of drug testing, whether based on random testing or reasonable 

cause, is the natural corollary to our earlier opinions 

identifying a strong public policy that precludes allowing 

intoxicated or drug-impaired seamen to remain in safety-sensitive 

positions aboard oil tankers. We noted in Exxon II that "the 

statutes and regulations . . . convey the unequivocal message 

that . . . an owner or operator [of an oil tanker] should take 

every practicable step to ensure that an intoxicated crew member 

does not cause or contribute to an oil spill." 11 F.3d at 1195. 

The right to test employees for alcohol or drug use upon a 

showing of reasonable cause, on threat of discharge, is critical 

to achieving the objective of the Coast Guard regulations and of 

the environmental protection statutes we have cited. Were 

employees permitted to refuse to submit to such chemical tests, 

it is difficult to imagine why any drug user would consent. 

 The federal government has manifested its strong 

support for drug testing of employees involved in mass 

transportation through the promulgation by all federal agencies 

governing mass transportation of regulations designed to prevent 

drug use by employees in safety-sensitive positions. Such 
regulations in most instances equate refusal to test with a 

"positive" test result. See, e.g., 14 C.F.R. 

§121.455(c)(1995)(Federal Aviation Administration); 49 C.F.R. § 

§219.213, 219.505, 219.603(b) & (c) (1994)(Federal Railroad 

Administration); 49 C.F.R. § 391.95(d) (1994)(Federal Highway 

Administration); 49 C.F.R. § 653.35(a)(1994) (Federal Transit 

Administration); 10 C.F.R. § 26.27(c)(1994) (Nuclear Regulatory 

Commission). 

 The force of our decisions in Exxon I and II would be 

radically undermined if we declined 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. Although Coast Guard regulations do not mandate 

discharge for an employee - even one in a safety-sensitive 

position - who refuses a drug test, we conclude that if Exxon had 

cause to require a test, Cash's reinstatement following his 

refusal would violate public policy because it would undercut 

enforcement of Coast Guard regulations and environmental statutes 

which denote a well defined and dominant public policy against 

permitting intoxicated crew members to operate oil tankers and 

other common carriers. Cf. Local No. P-1236, Amalgamated Meat 

Cutters & Butcher Workmen v. Jones Dairy Farm, 680 F.2d 1142, 

1145 (7th Cir. 1982)(company rule forbidding employees from 

reporting health violations violated public policy because it 

hindered accomplishment of the goals of the Meat Inspection Act). 

 C.
 Exxon recognized that under its collective bargaining 

agreement, the Union was entitled to grieve whether there was 

reasonable cause to require Cash to submit to a drug test. The 

Chairman found that Exxon lacked "cause" to require Cash to 

submit to a drug test, but that Cash was "insubordinate" for 

refusing to take the test. However, because discharge for 

insubordination was not mandated by the company policy, the 

Chairman determined that discharge was too harsh a sanction, and 

the panel ordered Cash reinstated without back pay. 

In considering Exxon's challenge to the arbitral award, 

we do not review for legal error, but are limited to assessing 

whether the award "draw[s] its essence from the collective 

bargaining agreement." W.R. Grace & Co. v. Local Union 759, 461 

U.S. 757, 766 (1983). This standard is satisfied "'if the 

interpretation can in any rational way be derived from the 

agreement, viewed in the light of its language, its context and 

any other indicia of the parties' intention; only where there is 

a manifest disregard of the agreement, totally unsupported by 

principles of contract construction and the law of the shop, may 

a reviewing court disturb the award.'" Super Tire Engineering 

Co. v. Teamsters Local Union No. 676, 721 F.2d 121, 124 (3d Cir. 

1983) (quoting Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 

1128 (3d Cir. 1969)), cert. denied, 469 U.S. 817 (1984). See

also News America Inc. v. Newark Typographical Union, Local 103, 

918 F.2d 21, 24 (3d Cir. 1990)("A court may not overrule an 

arbitrator simply because it disagrees with the arbitrator's 

construction of the contract or because it believes its 
interpretation of the contract is better than that of the 

arbitrator." (citation omitted)). 

 Exxon argues that we should set aside the award because 

the arbitrator exceeded his authority in reinstating Cash to his 

former position. In reviewing Exxon's multi-faceted challenge to 

the arbitral decision we may not "second-guess[] the arbitrator's 

fact-finding, particularly insofar as the conclusion that the 

asserted public policy would be violated by the employee's 

reinstatement depends on drawing factual inferences not made by 

the arbitrator." United States Postal Service v. National Ass'n 

of Letter Carriers, 839 F.2d 146, 148 (3d Cir. 1988). 

 1. The Cause Requirement

 Exxon argues that in interpreting the company drug 

policy's requirement that "cause" support a drug test, the 

Chairman impermissibly inserted a "clear and convincing" evidence 

of ownership standard, and employed an "ex post" analysis to 

assess whether cause existed. The Union responds that the 

quantum of proof required in such cases is unsettled, but that 

where the offense charged is one that is punishable by law, such 

as drug possession, arbitrators have commonly held employers to a 

"clear and convincing" or "beyond a reasonable doubt standard." 

Brief of Appellee at 35 (citing Frank Elkouri & Edna Asper 

Elkouri, How Arbitration Works 661-63 (4th ed. 1985)). It 

further maintains that neither the parties' contract nor the 

company's Drug and Alcohol Policy defined "cause," identified a 

standard of proof to be employed, or specified at what point in 
time "cause" must exist; therefore, these determinations were 

within the province of the arbitrator. 

 We agree. The parties bargained for an arbitrator to 

interpret their contract. The Exxon Drug and Alcohol Policy 

states: "[t]he Company . . . has the right to require employees 

to submit to medical evaluation or alcohol and drug testing where 

cause exists to suspect alcohol or drug misuse." App. at 44 

(emphasis added). The term "cause" is ambiguous. Where a 

contractual ambiguity exists it is within the province of the 

arbitrator to interpret the ambiguous phrase. Suburban Transit 

Corp., 51 F.3d at 380-81. Although the Chairman's opinion may 

not be a model of clarity, it is evident that he ultimately 

concluded that Exxon lacked "cause" to require Cash to submit to 

a drug test. That Exxon now disagrees with that conclusion is 

not a ground for vacating his decision. Exxon could have defined 

"cause" more specifically in its policy, or could have bargained 

with the union to remove cases arising under its drug policy from 

the jurisdiction of arbitrators altogether. It did not, and 

therefore may not now be heard to complain that the arbitrator 

lacked authority to make determinations that the company policy 

and the parties' agreement left open for an arbitrator's 

judgment. 

2. Change of Discipline

 Exxon next argues that the arbitrator lacked authority 

to reinstate Cash because the company's September 28, 1988 letter 

clearly notified employees that termination was the penalty for 

violation of the Drug and Alcohol Policy. But the Drug Policy 
requires only that employees submit to testing "where cause 

exists." The arbitrator concluded that it did not; accordingly, 

based on his findings, the arbitrator did not exceed his 

authority. 

 Exxon further maintains that the arbitrator lacked 

authority to change the discipline for a finding of 

insubordination, and in doing so exceeded his power to interpret 

the contract. The arbitrator found that Cash's refusal to take 

the drug test was insubordinate. Although company rules permit 

Exxon to discharge an employee for insubordination, the 

arbitrator believed that under these circumstances a discharge 

would conflict with the requirement that "cause" support an order 

to take a drug test. 

 This situation is analogous to the one we faced in 

Super Tire, 721 F.2d 121. In that case, drinking alcohol during 

work hours was characterized in the parties' contract as a cause 

for "immediate dismissal." Id. at 122. Yet dismissal also 

required "just cause." Id. The arbitrator determined that 

although the employee had been drinking during work hours, 

dismissal was too harsh a punishment because the employee had not 

been warned that the company would strictly enforce its policy. 

We reversed the district court's order vacating the arbitrator's 

determination because we concluded that the terms of the contract 

were not so clear as to foreclose the arbitrator's interpretation 

that a warning was required. Id. at 125. 

 In Super Tire, we relied on our earlier decision in 

Arco-Polymers, Inc. v. Local 8-74, 671 F.2d 752 (3d. Cir.), cert.
denied, 459 U.S. 828 (1982). There, a clause in the employment 

contract provided for discharge of employees absent from work for 

four consecutive days without good cause. Another section 

provided that employees shall be discharged only for "just 

cause." Id. at 753. The arbitrator reinstated an employee who 

had been terminated for being absent from work for 19 days 

without good cause. The district court vacated the award. We 

held that the district court erred because "[i]t cannot be said 

with absolute certainty . . . that discharge under this section 

is `strictly a function of management.'" Id. at 756 (quoting 

United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 

574, 584 (1960)). 

 Similarly here, the Agreement stated that 

insubordination "shall constitute cause for which unlicensed 

personnel may be discharged." App. at 147 (emphasis added). The 

subsequent September 1988 letter warned that the company's Drug 

and Alcohol Policy would be strictly enforced. The policy 

included the provision that employees must submit to drug testing 

"where cause exists." App. at 44. The Chairman found that 

reading these provisions together, the "just cause" standard 

still applied, and because Exxon lacked cause to test Cash, 

discharge for insubordination would be inappropriate. As in 

Super Tire and Arco, we cannot say that the arbitrator's reading 

of the contract is implausible and that his decision to reinstate 

Cash was beyond the bounds of his authority. 

 3. Interpretation of Coast Guard Regulations 
 Exxon also contends that the arbitrator exceeded his 

authority by interpreting Coast Guard regulations, because an 

arbitrator's decision must be based exclusively on the collective 

bargaining agreement. In light of the fact that the Chairman 

based his decision on the terms of the collective bargaining 

agreement, even though he referred to the Coast Guard 

regulations, see App. at 93, we have no occasion to consider 

whether, as Exxon claims, the Chairman interpreted the 

regulations incorrectly. 

4. Reasonableness of Arbitrator's Findings

 Finally, we consider whether the Chairman's finding in 

this case that Exxon lacked "cause" to order Cash to take a drug 

test was so unreasonable that it would violate public policy to 

enforce his award. The Chairman found that there was marijuana 

or marijuana residue in numerous places in the cabin Cash was 

using. Specifically, there was green leafy material in a desk 

and cabinet, ash on the rug, seeds under the rug, and two butts 

of marijuana, referred to as "roaches," in a suitcase pouch. The 

Union emphasized Cash's minimal association with that room, in 

that Cash had been assigned there less than two days before and 

had spent only a few hours there because he was working long 

shifts elsewhere on the ship. 

 At oral argument, Exxon argued that where, as here, a 

matter of public policy is involved, the arbitrator's findings 

should be held to a higher standard of scrutiny and set aside if 

unreasonable. We find no authority for vacating an arbitral 

award on such grounds. On the contrary, an arbitrator's decision 
need be neither wise nor internally consistent. In fact, 

arbitrators have no obligation to explain their reasons for an 

award or even to write an opinion unless the contract so 

requires. Virgin Islands Nursing Association's Bargaining Unit 

v. Schneider, 668 F.2d 221 (3d Cir. 1981); see also United 

Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598 

(1960). Arbitrators' decisions are subject to a standard of only 

"minimal rationality." Virgin Islands Nursing, 668 F.2d at 223 

(quoting Robert A. Gorman, Basic Text on Labor Law 586 (1976)). 

Although we will vacate an award if we find that the award itself 

violates public policy, the public policy exception does not 

lessen our deference to an arbitrator's factual findings. 

 The Supreme Court has made clear that findings of fact 

and inferences to be drawn therefrom are the exclusive province 

of the arbitrator. United Paperworkers Int'l Union v. Misco, 

Inc., 484 U.S. 29, 36, 44 (1987). That a court "is inquiring 

into a possible violation of public policy [does not] excuse a 

court for doing the arbitrator's task." Id. at 45. Thus, this 

court may not refuse enforcement even if we consider the evidence 

sufficient to prove that reasonable cause existed to require Cash 

to submit to a drug test. Exxon challenges the reasonableness of 

the arbitrator's conclusions, but "[n]o dishonesty is alleged; 

only improvident, even silly, factfinding is claimed." Id. at 39. 

 It is not our role to draw inferences that the 

factfinder did not. We therefore will not disturb the 

arbitrator's finding that "cause" did not exist to require Cash 

to submit to a drug test. Accordingly, because we accept the 
arbitrator's finding that Cash was ordered to submit to a test 

without reasonable cause, his reinstatement does not offend 

public policy and the decision of the arbitrator must be 

enforced. 

III. 

 For the foregoing reasons, the order of the district 

court will be affirmed. 

 

 

298 Hon. Marjorie O. Rendell, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation.