Eastern s drug testing policy did not have the right provisions. Employers can establish policies that require discharge following one or two positive tests. They can obviously negotiate labor contract provisions saying the same thing. Indeed, Justice Ginsberg commented during oral argument that Eastern should go back to the bargaining table and negotiate a contract clause stating if you test positive for drugs twice, you re out. Non-union employers can take the reinstatement remedy away from an arbitrator by a similar policy.
Arbitrators are creatures of contract.
They only have the authority the parties give them. If they exceed that authority, their awards will be vacated not on public policy grounds but because they exceeded their authority. Eastern and the union submitted the issue of just cause to Arbitrator Barrett. Arbitrators must construe the agreement and cannot simply impose their own notions of what s fair. Employers are masters of their domain.