*fn*,Richard R. Cerbone (Argued) Carlin, Maddock, Fay & Cerbone Florham Park, NJ 07932,EXXON SHIPPING COMPANY, APPELLANT v. EXXON SEAMAN'S UNION" />

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Exxon Shipping Co. v. Exxon Seamen's Union

January 11, 1996

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)

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

RENDELL, District Judge *fn*

Argued September 11, 1995

Filed January 11, l996)

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. ...


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