Exxon Shipping Co. v. Exxon Seaman's Union

Opinions of the United
1996 Decisions 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Precedential or Non-Precedential: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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 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 'well-

defined 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 `safety-

sensitive' 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.