Judgment affirmed by Supreme

Court opinion filed 11/28/00
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EASTERN ASSOCIATED COAL COMPANY,

Plaintiff-Appellant,

v.

No. 98-2527

UNITED MINE WORKERS OF AMERICA,

DISTRICT 17; LOCAL 1503, UNITED

MINE WORKERS OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

John T. Copenhaver, Jr., District Judge.

(CA-97-819-2)

Argued: May 6, 1999

Decided: August 20, 1999

Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Ronald E. Meisburg, HEENAN, ALTHEN & ROLES, ARGUED:

Washington, D.C., for Appellant. William D. Ryan, DISTRICT 17,

UNITED MINE WORKERS OF AMERICA, Charleston, West Virginia, for Appellees. ON BRIEF: ON BRIEF: ON BRIEF: Anna M. Dailey, Donna C. Kelly,

HEENAN, ALTHEN & ROLES, Charleston, West Virginia, for

Appellant.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Eastern Associated Coal Company ("Eastern") appeals a district

court order granting summary judgment to United Mine Workers of

America, District 17 and Local Union 1503 (collectively, "UMWA")

in Eastern's action seeking vacatur of a labor arbitration award. Concluding that the district court correctly decided the issues before it, we

affirm.

I.

The present dispute arises out of the National Bituminous Coal

Wage Agreement of 1993 ("the Wage Agreement"), a collective bargaining agreement to which Eastern and UMWA are parties. The

Wage Agreement reserves exclusively to Eastern the right to hire and

discharge employees but provides that "[n]o Employee covered by

this Agreement may be disciplined or discharged except for just

cause." J.A. 39. Although "just cause" is not defined in the Wage

Agreement itself, Eastern's substance abuse policy states that any

employee who tests positive for illegal drugs must"be removed from

any safety sensitive position and subject to disciplinary action up to

and including termination." J.A. 62 (internal quotation marks omitted).

James Smith was employed by Eastern as a mobile equipment

operator. In that capacity, Smith was required to have a current commercial driver's license and to operate heavy equipment. On March

25, 1996, Smith was subjected to a random drug test and tested positive for cannabinoids. As a result of the test, he was suspended and

eventually discharged. Smith grieved the discharge, and his case proceeded to arbitration. Following a hearing, the arbitrator issued an

award returning Smith to work after a 30-day suspension without

back pay. In addition, Smith was required to take part in a substance

 2
abuse program. The award further required that Smith be subject to

random drug testing at the discretion of either Eastern or an approved

substance abuse professional over a five-year period.

Smith tested negative for illegal drugs on three subsequent occasions. However, on June 27, 1997, Smith again tested positive for

cannabinoids. Again, he was suspended and subsequently discharged,

and again, he grieved the discharge and his case proceeded to arbitration. The arbitrator found that Smith's lapse in his abstinence from

recreational drug use was an isolated occurrence caused by a family

problem. Accordingly, the arbitrator issued an award suspending

Smith through October 29, 1997, but then reinstating him, subject to

certain conditions. Those conditions included, inter alia, that Smith

would receive no back pay, that he would reimburse Eastern and

UMWA for the costs of both arbitrations, and that he would provide

a signed, undated letter of resignation which would be dated and

accepted if he tested positive for any illegal drug, or refused to submit

to a drug test, in the following five years.

Eastern sought vacatur of the award in the district court, maintaining that the award does not draw its essence from the Wage Agreement and that it violates a public policy against the use of illegal

drugs by persons in safety-sensitive positions. The district court

granted summary judgment against Eastern. The court reasoned that

because neither the Wage Agreement nor Eastern's substance abuse

policy requires that discharge is mandated as the punishment for

employees who test positive for illegal drugs, the arbitrator rationally

could have concluded that there was not just cause for that punishment under the facts presented here. The court also ruled that the arbitrator's award was not contrary to a well-defined and dominant public

policy because although there is a public policy against the use of illegal drugs by those in safety-sensitive positions, there is no such public

policy against the reinstatement of employees who have used illegal

drugs in the past.

II.

On appeal, Eastern, repeating the arguments it advanced below,1

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1 Eastern also argues for the first time in its reply brief that, even if the 1 

arbitrator rationally found no just cause for discharge, the arbitrator vio-

 3
contends that the district court erred in granting UMWA's motion for

summary judgment. Having had the benefit of oral argument and the

parties' briefs, and after careful consideration of the record and the

applicable law, we conclude that the district court correctly decided

the issues before it. Accordingly, we affirm on the reasoning of the

district court. See Eastern Associated Coal Corp. v. UMWA, District

17, No. 2:97-0819 (S.D.W.V. Sept. 30, 1998). 2

AFFIRMED

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lated the Wage Agreement by fashioning his own punishment instead of

ordering that Smith be reinstated immediately. However, because this

argument is advanced for the first time in Eastern's reply brief, it is not

properly before this court, and we decline to address it. See Cavallo v.

Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996).

2 UMWA's motion for leave to file an additional responsive memoran- 2 

dum is granted.

 4