US Supreme Court Briefs

No. 99-1038


In the Supreme Court of the United States

EASTERN ASSOCIATED COAL CORPORATION, PETITIONER

v.

UNITED MINE WORKERS OF AMERICA, DISTRICT 17,
ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING AFFIRMANCE


SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
LAWRENCE G. WALLACE
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General
WILLIAM KANTER
MARK W. PENNAK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217


NANCY E. MCFADDEN
General Counsel
PAUL M. GEIER
Assistant General Counsel
PETER J. PLOCKI
Senior Attorney
Department of
Transportation
Washington, D.C. 20590


QUESTION PRESENTED

Whether the arbitrator's award in this case, which ordered reinstatement(after a three-month suspension) of a commercial truck driver who had twicetested positive for marijuana, should be set aside as contrary to publicpolicy.

In the Supreme Court of the United States

No. 99-1038

EASTERN ASSOCIATED COAL CORPORATION, PETITIONER
v.
UNITED MINE WORKERS OF AMERICA, DISTRICT 17,
ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING AFFIRMANCE


INTEREST OF THE UNITED STATES

This case presents the question whether a federal court should set aside,as contrary to public policy, a labor arbitrator's decision ordering reinstatement(after a three-month suspension) of a commercial truck driver who had twicetested positive for marijuana. Congress directed the United States Departmentof Transportation to promulgate regulations governing the use of alcoholand illegal drugs by persons employed in the transportation industry, includingcommercial truck drivers. The regulations promulgated pursuant to that statutorydirective address, inter alia, the categories of persons subject to alcoholand drug testing, the manner in which those tests will be conducted, andthe consequences that follow from a failed test. The United States has asubstantial interest in ensuring that judicial review of arbitral awardsunder collective bargaining agreements does not undermine either DOT's regulations,or the federal labor policy favoring arbitration as the method for finallyresolving disputes under collective bargaining agreements.

STATEMENT

1. In the Omnibus Transportation Employee Testing Act of 1991 (Testing Act),Pub. L. No. 102-143, Tit. V, 105 Stat. 952, Congress addressed the threatto public safety posed by drug and alcohol abuse on the part of individualsemployed in the transportation industry. The Testing Act contains congressionalfindings that, inter alia, "the greatest efforts must be expended toeliminate the abuse of alcohol and use of illegal drugs, whether on dutyor off duty, by those individuals who are involved in the operation of aircraft,trains, trucks, and buses"; "the use of alcohol and illegal drugshas been demonstrated to affect significantly the performance of individuals,and has been proven to have been a critical factor in transportation accidents";"the most effective deterrent to abuse of alcohol and use of illegaldrugs is increased testing, including random testing"; and "rehabilitationis a critical component of any testing program for abuse of alcohol or useof illegal drugs, and should be made available to individuals, as appropriate."Testing Act § 2(3), (4), (5) and (7), 105 Stat. 953.

The Testing Act in its current form states that "[i]n the interestof commercial motor vehicle safety, the Secretary of Transportation shallprescribe regulations * * * that establish a program requiring motor carriersto conduct preemployment, reasonable suspicion, random, and post-accidenttesting of operators of commercial motor vehicles for the use of alcoholor a controlled substance." 49 U.S.C. 31306(b)(1)(A) (1994 & Supp.III 1997). The Testing Act further provides that the Secretary "shallprescribe regulations establishing requirements for rehabilitation programsthat provide for the identification and opportunity for treatment of operatorsof commercial motor vehicles who are found to have used alcohol or a controlledsubstance in violation of law or a Government regulation." 49 U.S.C.31306(e). The Act states in addition that the Secretary "shall decideon appropriate sanctions for a commercial motor vehicle operator who isfound, based on tests conducted and confirmed under this section, to haveused alcohol or a controlled substance in violation of law or a Governmentregulation but who is not under the influence of alcohol or a controlledsubstance as provided in this chapter." 49 U.S.C. 31306(f).1

2. In response to, inter alia, the statutory directives described above,the Department of Transportation (DOT) has promulgated detailed regulationsthat require drug testing of a wide range of employees in the transportationindustry. With respect to commercial drivers, the regulations state that"[e]xcept as provided in subpart F of this part [49 C.F.R. 382.601-382.605],no driver shall perform safety-sensitive functions, including driving acommercial motor vehicle, if the driver has engaged in" prohibiteddrug use. 49 C.F.R. 382.501(a); see also 49 C.F.R. 382.501(b) ("Noemployer shall permit any driver to perform safety-sensitive functions,including driving a commercial motor vehicle, if the employer has determinedthat the driver has violated this section."); 49 C.F.R. 382.507 ("Anyemployer or driver who violates the requirements of this part shall be subjectto the penalty provisions of 49 U.S.C. section 521(b)."). Thus, ifan employee tests positive for controlled substances, both the employerand the employee are subject to penalties if the employee thereafter performsa safety-sensitive function without first complying with the requirementsof Subpart F of 49 C.F.R. Part 382.

In Subpart F, and Section 382.605 in particular, DOT established rehabilitationrequirements that must be satisfied before an employee who has tested positivefor a controlled substance may return to a safety-sensitive position. First,the driver "shall be evaluated by a substance abuse professional [SAP]who shall determine what assistance, if any, the employee needs in resolvingproblems associated with * * * controlled substances use." 49 C.F.R.382.605(b).2 Second, "[b]efore a driver returns to duty requiring theperformance of a safety-sensitive function after engaging in conduct prohibitedby subpart B of this part, the driver shall undergo a return-to-duty * ** controlled substances test with a verified negative result." 49 C.F.R.382.605(c)(1). Finally, if the driver has been "identified [by theSAP] as needing assistance in resolving problems associated with * * * controlledsubstances use," 49 C.F.R. 382.605(c)(2), the SAP must determine thatthe driver has followed the prescribed rehabilitation program, 49 C.F.R.382.605(c)(2)(i), and the driver must be subject to at least six unannounceddrug tests during the 12 months following his return to duty, 49 C.F.R.382.605(c)(2)(ii).

The DOT regulations do not establish any additional prerequisites to reinstatementfor a driver who fails a drug or alcohol test on two or more occasions.A proposed rule issued by DOT for comment in December 1992 included a provisionstating that "[a] driver who, during any 3-year period, is found tohave a verified positive controlled substances test result twice in separateincidents, is prohibited from driving any commercial motor vehicle * * *for a period of 60 consecutive days." 57 Fed. Reg. 59,585 (1992) (proposed49 C.F.R. 382.1107(a)(2)(i)). After considering public comments on the proposedregulations, however, the agency declined to adopt that disqualificationrule. 59 Fed. Reg. 7493 (1994). The agency made clear that "[t]he onlydriving prohibition period for a controlled substances violation is similarto that for alcohol-- completion of rehabilitation requirements and a return-to-dutytest with a negative result." Ibid.3

So long as a commercial driver satisfies the rehabilitation requirementsof 49 C.F.R. 382.605, he is eligible under the regulations to perform safety-sensitiveduties. See 59 Fed. Reg. at 7493; id. at 7503. The preamble to the regulationsmakes clear, however, that "[c]ompliance with the prescribed treatmentand passing the test(s) will not guarantee a right of reemployment."Ibid. Consistent with the DOT regulations, an employer may decline to offerrehabilitation to an employee who tests positive and may instead dischargeevery such worker. The 1994 preamble "encourage[s] those employerswho can afford to provide rehabilitation to do so through established healthinsurance programs, since it helps their drivers, benefits morale, is oftencost-effective and ultimately contributes to the success of both their businessand their testing programs." Id. at 7502. The agency has expresslydeclined, however, "to mandate employer-provided rehabilitation,"deciding instead that the matter "should be left to management/drivernegotiation." Ibid.

3. The Labor-Management Relations Act of 1947 (LMRA) states the nationalpolicy that "sound and stable industrial peace and the advancementof the general welfare, health, and safety of the Nation and of the bestinterests of employers and employees can most satisfactorily be securedby the settlement of issues between employers and employees through theprocesses of conference and collective bargaining between employers andthe representatives of their employees." 29 U.S.C. 171(a). The LMRAfurther states that "[f]inal adjustment by a method agreed upon bythe parties is declared to be the desirable method for settlement of grievancedisputes arising over the application or interpretation of an existing collective-bargainingagreement." 29 U.S.C. 173(d).

4. James Smith, a drilling operator for petitioner Eastern Associated CoalCorporation, applied for a position as a Mobile Equipment Operator. Becausethe new position required a commercial driver's license, Smith was subjectto alcohol and drug testing under the DOT regulations. In March 1996 Smithtested positive for marijuana. Petitioner sought to discharge him, but Smithgrieved his discharge and the arbitrator ordered him reinstated, subjectto a suspension of 30 days without pay and the requirement that he participatein a substance abuse program. Smith passed four drug tests between April1996 and January 1997, but in June 1997 he again tested positive for marijuana.On July 14, 1997, petitioner suspended Smith with the intent to dischargehim. Smith and his union (the respondent in this case) contested the discharge.Pet. App. 6a-8a, 24a-26a.

The arbitrator in the second proceeding stated that "[w]hile [Smith]has been a very good employee during his 17 years with the company, it isobvious he has not been rehabilitated by the opportunity provided by thecompany's employee assistance program or the earlier arbitration."Pet. App. 26a. The arbitrator stated as well that "drugs have a negativeimpact on job performance, safety and company liability." Id. at 28a.

The arbitrator nevertheless ordered Smith reinstated, subject to variousconditions. He explained:

[Smith] made a very personal appeal under oath to the arbitrator concerninga personal/family problem which caused this one time lapse in drug usage.The arbitrator found this testimony creditable. If the arbitrator was misledby [Smith], the arbitrator is confident that [Smith] will make another misstepwith drug use and be caught. The remedy provided here will assure that thecompany and union will not be required to use arbitration again for [Smith]where drugs are involved.

Pet. App. 28a. Smith's reinstatement was made subject to the conditionsthat (1) he would not be paid for the period of his suspension, which wouldlast until October 20, 1997;4 (2) the prior arbitral award would be "reinstated";(3) Smith would reimburse the company and the union for the arbitrators'bills in both arbitral proceedings; (4) Smith would provide a signed, undatedletter of resignation that petitioner may accept if Smith fails a drug testduring the next five years; and (5) Smith would be subject to random drugtesting during the period of his suspension, and petitioner could accepthis resignation if he refused to take a drug test. Id. at 29a.

5. Petitioner filed suit in federal district court seeking vacatur of thearbitrator's award. The district court granted respondent's motion for summaryjudgment. Pet. App. 5a-21a. The court found that the arbitrator's awardwas "rationally inferable" from the applicable collective bargainingagreement. Id. at 16a. The court also rejected petitioner's contention thatthe award should be vacated as contrary to public policy. Id. at 17a-21a.The district court acknowledged that "[t]here is a plenitude of positivelaw to support the existence of a well defined and dominant public policyagainst the performance of safety sensitive jobs by employees under theinfluence of drugs." Id. at 18a. It held, however, that the award inthis case did not violate that public policy. The court explained:

[Petitioner] argues that the public policy embodied in the DOT Regulationsis sufficiently well defined and dominant to support vacation of ArbitratorBarrett's award. There is no question that the DOT Regulations relied uponby [petitioner] articulate a well defined and dominant public policy againstdrug use by persons employed as commercial motor vehicle drivers. Nevertheless,the DOT Regulations do not express an explicit, well defined public policypermanently enjoining the employment of commercial motor vehicle driverswho test positive for drug use. Specifically, the DOT Regulations do notrequire that employees who test positive for drug use be automatically discharged.Here, the arbitrator ordered reinstatement of Mr. Smith, subject, however,to several conditions, including continued random drug testing and mandatoryresignation in the event of a future positive drug test. Because the DOTRegulations do not make it illegal to reinstate employees who test positivefor drug use, it cannot be said that the DOT Regulations "specificallymilitate against the relief ordered by the arbitrator" in this case.Consequently, the public policy exception does not apply inasmuch as thearbitrator's award is consistent with the DOT Regulations.

Id. at 20a-21a (citation and footnote omitted).

6. The court of appeals affirmed. Pet. App. 1a-4a. The court simply recountedthe facts and the procedural history of the case and stated that it "affirm[ed]on the reasoning of the district court." Id. at 4a.

SUMMARY OF ARGUMENT

1. Pursuant to statutory authority, the Department of Transportation (DOT)has promulgated regulations addressing the dangers posed by employee druguse within the transportation industry. Those regulations mandate drug testingof employees who perform safety-sensitive functions, and they establishprerequisites to the reinstatement of employees who test positive. A workerwho tests positive must be immediately removed from safety-sensitive dutiesand may not resume such duties until he has been evaluated by a substanceabuse professional (SAP), has successfully completed any program of rehabilitationthat the SAP prescribes, and has passed a return-to-duty drug test. DOThas made clear that employers are free to impose additional sanctions (includingoutright discharge) on employees who test positive, subject to any independentconstraints on management discretion that the employer has voluntarily assumed.

In our view, the arbitrator's reinstatement order in this case is most plausiblyconstrued to be contingent upon Smith's compliance with the pertinent DOTregulations-and, in particular, on his successful completion of any rehabilitationprogram that the SAP prescribes. So construed, the award is fully consistentwith federal policy and should not be set aside by a federal court. If anemployee satisfies the prerequisites to reinstatement established by theresponsible executive agency, a federal court cannot properly refuse enforcementof an arbitrator's reinstatement order based on the court's belief thatthe conditions set forth in the regulations are insufficient to protectthe public safety.

The fact that Smith failed two drug tests within a 16-month period doesnot significantly alter the analysis. Under a proposed regulatory provisionput forth for public comment in December 1992, any driver who failed twodrug tests within a three-year period would have been prohibited from operatinga commercial motor vehicle for a period of 60 days. Even if that proposedrule had been adopted, the arbitral award in the instant case would be valid,since under the arbitrator's decision Smith was suspended for slightly morethan three months. After considering public comments, DOT declined to mandateany specific period of disqualification even for recidivist drug users,concluding instead to entrust decisions regarding repeat offenders to privateordering and the sound judgment of arbitrators, subject to the rehabilitationrequirements set forth in 49 C.F.R. 382.605. Smith's status as a recidivistis surely relevant in determining the appropriate response to his positivedrug test. But the text and history of the pertinent DOT regulations areinconsistent with any contention that discharge is the only permissiblesanction for a recidivist drug offender.

2. The courts below correctly deferred to the arbitrator's judgment ratherthan attempting a de novo determination of the appropriate sanction forSmith's misconduct. The arbitrator's specialized training and repeated exposureto workplace disputes gives him a significant advantage (as compared toa federal judge) in resolving the pertinent remedial issues, notwithstandingthe fact that the consequences of the arbitrator's decision may be feltbeyond the employer's place of business. That is particularly so in lightof the arbitrator's ability to see and hear the witnesses firsthand. A deferentialstandard also helps to ensure that the arbitrator's decision will be treatedwhen issued as essentially final, thereby allowing the parties to put thecontroversy behind them. Finally, enforcing the parties' agreement to entrustworkplace disputes to the arbitrator serves the national interest in industrialpeace, since the employer's agreement to arbitrate has historically servedas the quid pro quo for the union's promise not to strike.

ARGUMENT

The arbitrator's decision in this case rests on three subsidiary propositions.First, the arbitrator construed the collective bargaining agreement as authorizingbut not mandating discharge as a sanction for employee drug use. Second,the arbitrator construed his own remedial powers expansively. While framingthe question before him as whether the company had established "justcause" for Smith's discharge, Pet. App. 24a, the arbitrator evidently(though implicitly) understood his task to be that of determining, not whetherdischarge was a permissible sanction under the terms of the agreement, butwhether discharge was the fairest or most appropriate sanction under allthe facts and circumstances. In essence, the arbitrator understood the agreementas delegating to him the sort of discretionary authority that would otherwisebe exercised by company management. Third, the arbitrator considered allthe relevant facts and concluded that a three-month suspension without pay,subject to various conditions, was a more appropriate punishment than outrightdischarge.

At least in this Court, petitioner does not assert that any of those arbitralrulings is wrong as a matter of contract interpretation. Petitioner doesnot, that is, contend that the collective bargaining agreement either (1)mandates the discharge of every covered employee who is found to have usedmarijuana, (2) gives management unreviewable discretion to determine theappropriate sanction for an individual who tests positive, or (3) precludesreinstatement under the facts and circumstances of this case. Rather, petitioner'sargument is that the arbitral award should be vacated as contrary to publicpolicy even assuming that the award is faithful to the intent of the contractingparties.

For the reasons that follow, that argument lacks merit. This Court has emphasizedthat judicial authority to vacate an arbitral award as contrary to publicpolicy "is limited to situations where the contract as interpreted[by the arbitrator] would violate some explicit public policy that is welldefined and dominant, and is to be ascertained by reference to the lawsand legal precedents and not from general considerations of supposed publicinterests." United Paperworkers Int'l Union v. Misco, 484 U.S. 29,43 (1987) (internal quotation marks omitted). The Department of Transportation(DOT) has promulgated detailed regulations that, inter alia, define theprerequisites that a commercial driver must satisfy in order to resume safety-sensitiveduties after testing positive for illegal drugs. So long as those requirementsare satisfied, DOT's regulations leave with the employer the ultimate decisionwhether the employee should be reinstated, subject to any constraints onmanagement discretion (e.g., an agreement to arbitrate) that the employerhas voluntarily assumed. That regulatory scheme defines (at least insofaras the federal government is concerned) the relevant "public policy"in this area. If a driver satisfies the regulatory preconditions to reinstatement,and the decisionmaker chosen by the parties concludes that reinstatementis appropriate, we see no basis on which a federal court may direct a differentoutcome.

A. So Long As Smith Complies With The Department Of Transportation's RehabilitationRequirements, His Reinstatement To A Safety-Sensitive Position Is ConsistentWith "Public Policy" As Reflected In The Department's Regulations

1. As we explain above (see pp. 2-3, supra), Congress has vested the Departmentof Transportation (DOT) with broad authority to promulgate rules addressingthe dangers posed by employee drug use within the transportation industry.In devising appropriate regulations, DOT sought to balance three importantprinciples-each of which is firmly grounded in federal statutory law. First,the use of illegal drugs by workers in safety-sensitive positions posesa substantial threat to public safety.5 See Omnibus Transportation EmployeeTesting Act of 1991 (Testing Act), Pub. L. No. 102-143, Tit. V, § 2(3)and (4), 105 Stat. 953 (congressional findings); p. 2, supra. Second, treatmentand rehabilitation of employees who use illegal drugs serves important publicand private interests. See Testing Act § 2(7), 105 Stat. 953 (congressionalfinding); 49 U.S.C. 31306(e) (requiring DOT to "prescribe regulationsestablishing requirements for rehabilitation programs").6 Third, federallabor law reflects a preference for private resolution, through the collectivebargaining process, of issues regarding workplace management. 29 U.S.C. 171(a).

The DOT regulations require testing of drivers in safety-sensitive positionsin order to deter the use of illegal drugs and to detect those individualswho engage in drug use. The regulations require the immediate removal fromperformance of safety-sensitive duties of any individual who tests positivefor illegal drugs. 49 C.F.R. 382.501. Under the rules, the driver is eligibleto resume safety-sensitive duties only after he has been evaluated by asubstance abuse professional (SAP), 49 C.F.R. 382.605(b); has passed a return-to-dutydrug test, 49 C.F.R. 382.605(c)(1); and has successfully completed any programof rehabilitation that the SAP prescribes, 49 C.F.R. 382.605(c)(2)(i).7The rules do not, however, compel the employer to offer rehabilitation orto reinstate a driver who has complied with the regulatory requirements.See 59 Fed. Reg. at 7502 (availability of rehabilitation should not be mandatedby rule but "should be left to management/driver negotiation");id. at 7503 ("Compliance with the prescribed treatment and passingthe test(s) will not guarantee a right of reemployment."). In short,the regulations establish legal prerequisites to the resumption of safety-sensitiveduties by drivers who have tested positive for illegal drugs, while leavingto private ordering the determination whether such workers will in factbe reinstated.

2. The arbitrator's decision in this case does not by its terms requirecompliance with DOT's rehabilitation regulations as a prerequisite to Smith'sresumption of safety-sensitive duties. The award orders that Smith be "returnedto work on October 20, 1997," Pet. App. 29a, and it does not explicitlymake that directive contingent on Smith's evaluation by an SAP or his successfulcompletion of any rehabilitation program that the SAP prescribes. The awardstates that "[d]uring [Smith's] suspension period, [Smith's] name shallremain in the company's random drug testing program." Ibid. It doesnot indicate, however, that Smith must pass a return-to-duty test, nor doesit require periodic drug testing after the suspension is over, even though the former is an absolute prerequisite to resumption of safety-sensitive duties (49 C.F.R. 382.605(c)(1)), andthe latter is required for any employee identified by the SAP as needingassistance in resolving drug-related problems (49 C.F.R. 382.605(c)(2)(ii)).

If the arbitral award is construed as entitling Smith to resume safety-sensitiveduties without completing DOT's rehabilitation requirements, the award is(at least to that extent) invalid. The DOT regulations make clear that

[n]o driver who has engaged in [illegal drug use] shall perform safety-sensitivefunctions, including driving a commercial motor vehicle, unless the driverhas met the requirements of § 382.605. No employer shall permit a driverwho has engaged in [illegal drug use] to perform safety-sensitive functions,including driving a commercial motor vehicle, unless the driver has metthe requirements of § 382.605.

49 C.F.R. 382.503. An employer and union may agree to additional restrictionson the performance of safety-sensitive functions by workers who have testedpositive, but they may not waive the minimum prerequisites to reinstatementthat the regulations impose. Obligations imposed by law cannot be supersededby private contract. Thus, even if petitioner had never sought vacatur ofthe arbitral award, Smith could not lawfully resume his duties as a commercialdriver without first satisfying the requirements of 49 C.F.R. 382.605.

3. Although the arbitrator's decision does not in terms mandate compliancewith the DOT rehabilitation requirements, the award is capable of beingimplemented in a manner that is consistent with those rules. The award wasissued on August 1, 1997, and ordered that Smith be "returned to workon October 20, 1997." Pet. App. 29a. Depending on the SAP's evaluation,any required rehabilitation program might feasibly have been completed beforethe end of Smith's suspension. If the rehabilitation program was still ongoingas of October 20, 1997, Smith could have been placed temporarily in a jobthat did not require the performance of safety-sensitive functions. Thearbitrator's decision states that "[t]he company and union may agreethat unusual or unforeseen circumstances justify waiving any conditionsset forth above," ibid., thus explicitly preserving the ability ofthe parties to make any necessary adjustments in the terms of the award.8And while the award does not itself require Smith to undergo either a back-to-dutytest or any follow-up testing, it also does not purport to exempt him fromany drug tests that are otherwise mandated by law. Moreover, the arbitrator"reinstated" the award entered in the prior arbitral proceeding(see ibid.), and that earlier award required Smith to participate in a substanceabuse program (see id. at 25a).

Because the award is readily capable of being implemented in a manner consistentwith the DOT regulations, and because petitioner has not contended thatthe award violates the rehabilitation requirements and we see no basis forassuming that the award is intended to contradict obligations imposed bylaw, we believe the arbitrator's reinstatement order should be construedto be contingent upon Smith's compliance with Section 382.605, includingsuccessful completion of any rehabilitation program prescribed by the SAP.So construed, the award is consistent with federal policy as set forth inthe Testing Act and the DOT regulations. The decision of the court of appealsshould therefore be affirmed.

The thrust of petitioner's argument is that reinstatement of a commercialdriver who has used illegal drugs is logically inconsistent with the publicpolicy against drug use by workers in safety-sensitive positions, and withthe DOT testing requirements designed to further that policy. Petitioner'sargument reflects an incomplete understanding of the agency's regulatoryscheme. The regulations are not silent regarding the consequences of a positivedrug test. To the contrary, the rules describe in detail the conditionsthat an employee who tests positive must satisfy in order to be eligibleto resume safety-sensitive duties, while leaving to private ordering thedecision whether reinstatement is appropriate in a particular case. Theregulatory scheme fashioned by DOT-the federal agency assigned by Congressto implement the Testing Act-defines the relevant "public policy"in this area. If an employee satisfies the regulatory prerequisites to resumptionof safety-sensitive duties, a federal court cannot properly refuse enforcementof an arbitrator's reinstatement order based on the court's belief thatthe conditions set forth in the rules are insufficient to protect the publicsafety.9

As we explain above (see pp. 5-6, 15-16, supra), the DOT regulations donot require employers to make rehabilitation programs available, and theydo not prevent an employer from discharging workers who test positive forillegal drugs. Petitioner suggests (Br. 46-47) that if employers are permittedto impose sanctions for drug use above and beyond those mandated by theregulations, then federal courts must be free to do so as well. That isa non sequitur. DOT's statement that the availability of rehabilitation"should be left to management/driver negotiation" (59 Fed. Reg.at 7502) is itself an expression of agency policy. Consistent with traditionalprinciples of economic liberty and freedom of contract, and with the nationalpolicy of encouraging resolution of workplace management issues throughthe collective bargaining process, see 29 U.S.C. 171(a); p. 6, supra, DOTchose to entrust private parties with significant discretion to determinewhether reinstatement is appropriate in particular cases. If Smith satisfiesthe regulatory prerequisites to reinstatement, and the decisionmaker chosenby the parties concludes that reinstatement (after a three-month suspension)is appropriate, enforcement of the arbitral award could not plausibly bedeemed inconsistent with any policy judgment reflected in the DOT regulations.To the contrary, a judicial decree setting the award aside would be inconsistentboth with the regulatory balance struck by DOT, and with the federal laborpolicy (see pp. 24-25, infra) favoring the resolution of contract disputesthrough arbitration.

4. The fact that Smith failed two drug tests within a 16-month period doesnot significantly alter the analysis. Employers are free under the regulationsto adopt policies requiring discharge of workers who fail two (or any othernumber) of drug tests within a specified period of time. DOT has declined,however, to require discharge of recidivist drug users (or any sub-categoryof recidivist drug users), concluding instead to entrust decisions regardingrepeat offenders to private ordering and the sound judgment of arbitrators,subject to the minimum prerequisites for resumption of safety-sensitiveduties set forth in 49 C.F.R. 382.605.

Contrary to petitioner's contention (Br. 46), moreover, the history of thepertinent DOT rulemaking makes clear that the absence of any provision directedspecifically at recidivist drug users reflects a deliberate agency policychoice. A proposed regulation put forth for public comment in December 1992included a provision stating that "[a] driver who, during any 3-yearperiod, is found to have a verified positive controlled substances testresult twice in separate incidents, is prohibited from driving any commercialmotor vehicle * * * for a period of 60 consecutive days." 57 Fed. Reg. at 59,585(proposed 49 C.F.R. 382.1107(a)(2)(i)). Even if that proposed rule had beenadopted, the arbitral award in the instant case would be valid, since underthe arbitrator's decision Smith was suspended for slightly more than threemonths. After considering public comments on the proposed regulations, however,the agency declined to mandate any specific period of disqualification evenfor recidivist drug users. See 59 Fed. Reg. at 7493. The agency made clearthat "[t]he only driving prohibition period for a controlled substancesviolation is similar to that for alcohol- completion of rehabilitation requirementsand a return-to-duty test with a negative result." Ibid. There is consequentlyno basis for petitioner's suggestion (Br. 46) that the absence of a provisionspecifically directed at recidivist drug users creates a regulatory gapthat a court may fill under the rubric of enforcing "public policy."10

Smith's status as a recidivist is surely relevant in determining the appropriateresponse to his positive drug test. The fact that Smith has twice testedpositive for marijuana may affect the SAP's assessment of his prospectsfor rehabilitation or the nature of the rehabilitation program that theSAP prescribes. Under the arbitrator's decision, moreover, Smith was subjectedto a significantly longer suspension after his second positive drug testthan after his first, and to additional sanctions (e.g., the requirementthat he pay the costs of both arbitral proceedings) as well. And nothingin DOT's regulations would prevent petitioner from insisting, in negotiationswith the union, on a contract provision permitting it to discharge everycommercial driver who failed two drug tests within a specified period oftime. The text and history of the pertinent DOT regulations, however, areinconsistent with any contention that discharge is the only legally permissiblesanction for recidivist drug offenders.

Finally, we do not agree with petitioner's contention (Br. 43) that "reinstatingSmith would make a mockery of the drug testing regime mandated by Congressand the DOT regulations." The DOT regulations expressly contemplatethe prospect that drivers who test positive will (after completion of specifiedrequirements) eventually be permitted to resume safety-sensitive duties.The regulations and accompanying preamble also reflect the view that thedecision whether reinstatement is advisable in a particular case is appropriatelyleft to private ordering. It is therefore difficult to see how reinstatementin accordance with the regulatory requirements, when decreed by the parties'chosen decisionmaker, could make a "mockery" of the agency's rules.

In our view, drug testing of commercial drivers serves important remedialand deterrent purposes even if a positive test (or a second positive test)does not invariably result in discharge of the offending employee. Drugtesting identifies those workers who may be in need of treatment and rehabilitation,and it ensures that such workers do not resume safety-sensitive duties untilthey have been evaluated by an SAP and have successfully completed any rehabilitationprogram that the SAP prescribes. Drug testing also provides employers withrelevant information and thus enables them to take whatever additional stepsthey deem appropriate, subject to any constraints on management discretionthat the employer has voluntarily assumed. In addition, disciplinary measuresimposed as a result of a positive drug test may have a substantial deterrenteffect on other workers even if the penalty falls short of outright discharge.Reasonable people may disagree as to whether Smith deserved a more severepunishment than the arbitrator in this case imposed. But the three-monthsuspension without pay of a commercial truck driver cannot accurately becharacterized as "condonation" (Pet. Br. 41) of the employee'sconduct.

B. The Courts Below Correctly Declined To Exercise De Novo Review Over TheArbitrator's Decision

Petitioner also contends that, even if the choice of an appropriate punishmentfor a second positive drug test requires consideration of all the factsand circumstances (rather than the application of a per se rule of discharge),the courts below ought to have exercised de novo review over the arbitrator'sdecision. Petitioner argues (Br. 24, 27) that judicial deference to thearbitrator's judgment is inappropriate when the arbitrator's decision potentiallyaffects persons outside the workplace. That argument lacks merit and would,if accepted, substantially disrupt the implementation of the federal laborlaws.

1. In the so-called "Steelworkers trilogy"-i.e., United Steelworkersof America v. American Manufacturing Co., 363 U.S. 564 (1960); United Steelworkersof America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); andUnited Steelworkers of America v. Enterprise Wheel & Car Corp., 363U.S. 593 (1960)- this Court emphasized the broad deference that courts oweto the decisions of labor arbitrators acting under collective bargainingagreements. The Court observed that the employer's agreement to arbitratepersonnel disputes is frequently the quid pro quo for the union's agreementnot to strike. See American Mfg., 363 U.S. at 567; Warrior & Gulf, 363U.S. at 578. The Court also explained that

the grievance machinery under a collective bargaining agreement is at thevery heart of the system of industrial self-government. Arbitration is themeans of solving the unforeseeable by molding a system of private law forall the problems which may arise and to provide for their solution in away which will generally accord with the variant needs and desires of theparties. The processing of disputes through the grievance machinery is actuallya vehicle by which meaning and content are given to the collective bargainingagreement.

Warrior & Gulf, 363 U.S. at 581.

Finally, the Court emphasized that "[w]hen an arbitrator is commissionedto interpret and apply the collective bargaining agreement, he is to bringhis informed judgment to bear in order to reach a fair solution of a problem.This is especially true when it comes to formulating remedies. There theneed is for flexibility in meeting a wide variety of situations." EnterpriseWheel, 363 U.S. at 597. The Court explained that

plenary review by a court of the merits [of the arbitrator's constructionof the contract] would make meaningless the provisions that the arbitrator'sdecision is final, for in reality it would almost never be final. * * *[T]he question of interpretation of the collective bargaining agreementis a question for the arbitrator. It is the arbitrator's construction whichwas bargained for; and so far as the arbitrator's decision concerns constructionof the contract, the courts have no business overruling him because theirinterpretation of the contract is different from his.

Id. at 599.11

2. Determining the appropriate sanction in cases involving employee druguse requires the decisionmaker to assess the employee's prospects for rehabilitationin light of his overall work record and the circumstances of his positivedrug test(s). It also requires an understanding of the "typical"punishment for comparable offenses (in a particular shop and/or in a broadergeographic area), as well as an appreciation of other workers' likely reactionsto a particular sanction. Thus, while the arbitrator's authority is drawnfrom the agreement of the parties, his powers under the agreement typicallyextend beyond contract "interpretation" narrowly conceived. SeeWarrior & Gulf, 363 U.S. at 582 ("The parties expect that [thearbitrator's] judgment of a particular grievance will reflect not only whatthe contract says but, insofar as the collective bargaining agreement permits,such factors as the effect upon productivity of a particular result, itsconsequence to the morale of the shop, his judgment whether tensions willbe heightened or diminished."). The arbitrator's specialized trainingand repeated exposure to workplace disputes gives him a significant advantage(as compared to a federal judge) in resolving those issues, notwithstandingthe fact that the consequences of the arbitrator's decision may be feltbeyond the employer's place of business (as would be true for many typesof employees, such as utility workers, health care workers, food handlers,makers of many manufactured products, etc.).12

3. The arbitrator in this case placed substantial weight on his own observationof Smith's testimony. See Pet. App. 28a. In practically any context wherethe credibility of witnesses matters, reviewing courts give deference tothe decisionmaker who has seen and heard the testimony firsthand. Underpetitioner's theory, the district court in this case should have eithermade its own credibility determination based on a cold record, or conducteda new evidentiary hearing in order to assess Smith's credibility for itself.Neither alternative seems workable. Moreover, both variants appear inconsistentwith this Court's statement in Misco that "[h]ad the arbitrator foundthat Cooper had possessed drugs on the property, yet imposed disciplineshort of discharge because he found as a factual matter that Cooper couldbe trusted not to use them on the job, the Court of Appeals could not upsetthe award because of its own view that public policy about plant safetywas threatened." 484 U.S. at 45.

4. Expeditious resolution of employee grievances under a collective bargainingagreement is independently desirable. The employer and union are involvedin a continuing relationship, and the goal of federal labor policy is thatthe relationship be as harmonious as possible. Protracted litigation overindividual grievances disserves that policy. Cf. United Parcel Serv., Inc.v. Mitchell, 451 U.S. 56, 64 (1981) (collective bargaining "system,with its heavy emphasis on grievance, arbitration, and the 'law of the shop,'could easily become unworkable if a decision which has given 'meaning andcontent' to the terms of an agreement, and even affected subsequent modificationsof the agreement, could suddenly be called into question as much as sixyears later").

Thus, judicial deference to arbitral decisions serves an important practicalpurpose regardless of whether arbitrators are better than courts at determiningthe appropriate sanction for breaches of workplace rules. So long as arbitratorsare equally good (or even passably good) at making such judgment calls,a deferential standard helps to ensure that the arbitrator's decision willbe treated when issued as essentially final, thereby allowing the partiesto put the controversy behind them. Petitioner's proposed rule, by contrast,would likely result in protracted litigation in a broad range of cases.Cf. Enterprise Wheel, 363 U.S. at 599 ("plenary review by a court ofthe merits would make meaningless the provisions that the arbitrator's decisionis final, for in reality it would almost never be final").

5. As this Court emphasized in the Steelworkers trilogy, the significanceof arbitration clauses must be assessed in the context of the collectivebargaining agreement as a whole. Such clauses further the cause of industrialpeace because they have historically served as the quid pro quo for theunion's agreement not to strike. See American Mfg., 363 U.S. at 567 ("Thereis no exception to the 'no strike' clause and none therefore should be readinto the grievance clause, since one is the quid pro quo for the other.");Warrior & Gulf, 363 U.S. at 578 ("A major factor in achieving industrialpeace is the inclusion of a provision for arbitration of grievances in thecollective bargaining agreement," since "arbitration is the substitutefor industrial strife."); Alexander v. Gardner-Denver Co., 415 U.S.36, 54 (1974) ("The primary incentive for an employer to enter intoan arbitration agreement is the union's reciprocal promise not to strike.").

Under petitioner's approach, however, courts would exercise de novo reviewover any arbitral ruling that potentially affects the health or safety ofthe public, even if the parties have agreed to entrust the dispute to anarbitrator. That rule would effectively render arbitration clauses unenforceablewith respect to a substantial category of workplace grievances. Petitionerurges that result despite the fact that arbitration clauses have historicallybeen central to the maintenance of industrial peace, and despite the factthat federal labor law has broadly encouraged arbitration of disputes relatedto the implementation of collective bargaining agreements. See 29 U.S.C.173(d) ("Final adjustment by a method agreed upon by the parties isdeclared to be the desirable method for settlement of grievance disputesarising over the application or interpretation of an existing collective-bargainingagreement."). Petitioner's apparent dissatisfaction with the limitedscope of the public policy exception to enforceability of arbitration awardsprovides no justification for its proposed radical undermining of the finalityof such awards, which would subvert federal labor policy and threaten substantialdisruption of the collective bargaining process.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.


SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
LAWRENCE G. WALLACE
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor
General
WILLIAM KANTER
MARK W. PENNAK
Attorneys


NANCY E. MCFADDEN
General Counsel
PAUL M. GEIER
Assistant General Counsel
PETER J. PLOCKI
Senior Attorney
Department of
Transportation


JULY 2000


1 Federal law mandates disqualification from commercial driving for at leastone year of any person who is convicted of operating a commercial motorvehicle while under the influence of alcohol or a controlled substance.49 U.S.C. 31310(b)(1)(A); 49 C.F.R. 383.51(b)(2)(i)-(ii) and (3)(i).

2 The regulations provide that "[t]he choice of substance abuse professionaland assignment of costs shall be made in accordance with employer/driveragreements and employer policies." 49 C.F.R. 382.605(d).

3 DOT regulations require disqualification, for specified periods, of individualsconvicted of certain offenses. See 49 C.F.R. 383.51. Those include operatinga commercial motor vehicle while under the influence of alcohol or controlledsubstances, see 49 C.F.R. 383.51(b)(2)(i)-(ii); use of a commercial motorvehicle in the commission of a drug felony, see 49 C.F.R. 383.51(b)(2)(v);and the commission of two or more serious traffic violations within a three-yearperiod while operating a commercial motor vehicle, see 49 C.F.R. 383.51(c).

4 The date of the arbitrator's decision was August 1, 1997. Pet. App. 29a.Because Smith was suspended by petitioner on July 14, 1997 (id. at 24a),the effect of the arbitrator's decision was that Smith was suspended withoutpay for slightly more than three months.

5 The DOT regulations make clear that individuals who currently use illegaldrugs or have measurable amounts of such drugs in their systems are ineligibleto perform safety-sensitive functions, regardless of whether the drug useoccurs on or off duty. See 49 C.F.R. 382.213(a) ("No driver shall reportfor duty or remain on duty requiring the performance of safety-sensitivefunctions when the driver uses any controlled substance."); 49 C.F.R.382.215 ("No driver shall report for duty, remain on duty or performa safety-sensitive function, if the driver tests positive for controlledsubstances."). That rule does not reflect a judgment that every individualwho tests positive for illegal drugs is in fact impaired. DOT has recognizedthat "drugs may stay in the body for some time and the presence ofdrugs in urine does not necessarily mean that the person was affected bythe drugs on the day tested or during the performance of safety-sensitivefunctions." 57 Fed. Reg. at 59,393-59,394. But precisely because urinetesting cannot determine whether an individual is impaired at a particulartime, any commercial driver who tests positive for illegal drugs must beregarded as a potential threat to public safety. See id. at 59,396 ("Itis not possible to determine, based on a chemical test, at what amount aparticular drug impairs each user's performance of particular functionsand thus could have safety consequences, so the mere presence of the drugmust be prohibited.").

6 Treatment and rehabilitation of such employees (as opposed to outrightdischarge) most obviously serves the individual's own interest in resuminggainful employment and in avoiding the risk of future criminal prosecutionthat inherently attends the use of illegal drugs. In addition, however,rehabilitation and treatment serves the interests of the transportationindustry and the national economy by allowing a worker's specialized skillsto be put to their most productive use.

7 In addition, if the SAP has concluded that the employee needs assistancein resolving problems associated with drug use, the employee "[s]hallbe subject to unannounced follow-up alcohol and controlled substances testsadministered by the employer following the driver's return to duty. Thenumber and frequency of such follow-up testing shall be as directed by the[SAP], and consist of at least six tests in the first 12 months followingthe driver's return to duty." 49 C.F.R. 382.605(c)(2)(ii).

8 Under the DOT regulations, the employee and employer are both subjectto penalties if a commercial driver who has tested positive for illegaldrugs resumes safety-sensitive duties without satisfying the agency's rehabilitationrequirements. See 49 C.F.R. 382.501, 382.507. Thus, both the union and theemployer have an obvious incentive to ensure that an ambiguous arbitralaward is implemented in a manner consistent with governing law.

9 With respect to some categories of drug users within the transportationindustry, Congress has itself mandated a specific period of disqualificationfrom the performance of safety-sensitive duties. In the aviation industry,for example, Congress has imposed a permanent disqualification from theperformance of certain safety-sensitive jobs by persons who have used drugswhile on duty, or who have again used drugs after beginning or completinga rehabilitation program. See 49 U.S.C. 45103(c)(1) and (2). A commercialdriver who is convicted of driving a commercial motor vehicle while underthe influence of drugs is subject to a mandatory one-year disqualification.See 49 U.S.C. 31310(b)(1)(A). Congress has declined, however, to mandatea specific disqualification period for drivers in Smith's position. Rather,Congress has directed the Secretary of Transportation to "decide onappropriate sanctions for a commercial motor vehicle operator who is found * * * to have used * * * a controlled substance in violation of law or aGovernment regulation but who is not under the influence of * * * a controlledsubstance as provided in this chapter." 49 U.S.C. 31306(f).

10 DOT has specifically addressed the issue of recidivist traffic offenders,and has mandated a 60-day period of disqualification for a commercial driverwho is twice convicted, within a three-year period, of "serious trafficviolations" committed during the operation of a commercial vehicle.49 C.F.R. 383.51(c)(2)(i). If Smith had incurred two reckless driving convictions(see 49 C.F.R. 383.5, defining "serious traffic violation" toinclude reckless driving), an arbitral award ordering him reinstated aftera three-month suspension could not plausibly be challenged as violativeof public policy (given the existence of a DOT regulation specifically addressingthe treatment of recidivist traffic offenders and prescribing a minimumdisqualification period of 60 days). Petitioner's argument thus dependson the proposition that a commercial driver who twice tests positive formarijuana, but has not been shown to have driven while impaired or otherwiseto have operated his vehicle in an improper manner, poses a greater threatto public safety than does an employee who has twice been convicted of recklessdriving. Reasonable people may surely hold that view, but it is difficultto see how that comparative judgment can be regarded (particularly in theexisting statutory and regulatory context) as the province of a federalcourt. And it is still more difficult to see how such a "public policy"can be inferred from DOT's considered refusal to specify a mandatory periodof disqualification for recidivist drug users.

11 The Court reaffirmed those principles in Misco. The Court observed that"the federal statutes regulating labor-management relations * * * reflecta decided preference for private settlement of labor disputes without theintervention of government." 484 U.S. at 37. It explained that "[b]ecausethe parties have contracted to have disputes settled by an arbitrator chosenby them rather than by a judge, it is the arbitrator's view of the factsand of the meaning of the contract that they have agreed to accept."Id. at 37-38. The Court noted as well that "where it is contemplatedthat the arbitrator will determine remedies for contract violations thathe finds, courts have no authority to disagree with his honest judgmentin that respect. If the courts were free to intervene on these grounds,the speedy resolution of grievances by private mechanisms would be greatlyundermined." Id. at 38.

12 Petitioner contends (Br. 40, 42) that the arbitral award is called intoquestion by the arbitrator's failure to make an express finding that Smithis unlikely to use drugs in the future. The arbitrator stated, however,that Smith had "made a very personal appeal under oath to the arbitratorconcerning a personal/family problem which caused this one time lapse indrug usage. The arbitrator found this testimony creditable." Pet. App.28a. Although that statement is not altogether clear, it is most naturallyread to mean that the arbitrator credited Smith's characterization of hisdrug use as a "one time lapse," as well as Smith's explanationfor his misconduct. This Court has discouraged efforts to impugn arbitralawards by exploiting ambiguities in the arbitrator's opinion. See EnterpriseWheel, 363 U.S. at 598 ("A mere ambiguity in the opinion accompanyingan award, which permits the inference that the arbitrator may have exceededhis authority, is not a reason for refusing to enforce the award.").As we explain above, moreover, Smith's resumption of safety-sensitive dutiesis contingent on his successful completion of any rehabilitation programprescribed by the SAP. That independent prerequisite to reinstatement furtherreduces the significance of the absence of express arbitral findings concerningthe likelihood of future drug use.

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