Georgia-Pacific Consumer Operations, LLC v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union, Local 9-0952

USCA11 Case: 20-10646 Date Filed: 11/20/2020 Page: 1 of 15

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 20-10646
Non-Argument Calendar
________________________

D.C. Docket No. 1:19-cv-00112-CG-N

GEORGIA-PACIFIC CONSUMER OPERATIONS, LLC,

Plaintiff -
Counter Defendant -
Appellee,

versus

UNITED STEEL, PAPER AND FORESTRY,
RUBBER, MANUFACTURING, ENERGY,
ALLIED INDUSTRIAL AND SERVICE
WORKERS UNION, LOCAL 9-0952,

Defendant -
Counter Claimant -
Appellant,

ROGER IRVIN,

Defendant - Appellant.
 USCA11 Case: 20-10646 Date Filed: 11/20/2020 Page: 2 of 15

________________________

Appeal from the United States District Court
for the Southern District of Alabama
________________________

(November 20, 2020)

Before JORDAN, NEWSOM, and LAGOA, Circuit Judges.

PER CURIAM:

This appeal arises out of the arbitration of a dispute between Georgia-Pacific

Consumer Operations, LLC, and United Steel, Paper and Forestry, Rubber,

Manufacturing, Energy, Allied Industrial and Service Workers Union, Local 9-

0952. The Union represents a subset of employees at one of Georgia-Pacific’s

plants, and Roger Irvin was one such employee before he was terminated after a

positive drug test. The Union and Georgia-Pacific have a collective-bargaining

agreement that allows for arbitration of matters like this. Here, the arbitrator

determined that under the parties’ contract, Georgia-Pacific lacked just cause to

terminate Irvin. Irvin’s failed drug test, he found, was the result of an accident—

after waking up sick one morning, he took his wife’s cough syrup (with codeine)

rather than his own (without codeine). The arbitrator thus ordered Georgia-Pacific

to reinstate Irvin and make him whole for all of the time he missed save for a 90-

day suspension.

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The district court vacated the arbitrator’s decision, reasoning that he had

exceeded his authority under the contract between the Union and Georgia-Pacific.

The district court separately refused to dismiss Irvin from the action. The Union

and Irvin appealed. We affirm on the second issue but reverse and remand on the

first.

I

Georgia-Pacific runs a pulp and paper plant in Pennington, Alabama. The

Union represents the facility’s production and maintenance employees, including

Irvin. Georgia-Pacific and the Union have a collective-bargaining agreement that

provides, inter alia, for arbitration of disputes if negotiations fail. One such

arbitration ensued after Georgia-Pacific terminated Irvin for failing a random drug

test and internal grievance procedures failed to settle the matter.

The arbitrator agreed with the Union. He said the contract between the

Union and Georgia-Pacific required “just cause” to fire an employee under these

circumstances, and he determined that no such just cause was present. The

arbitrator first summarized the parties’ arguments and then laid out a couple of key

provisions of the contract that informed his analysis. The first, Article 8, addressed

Georgia-Pacific’s “Rights of Management” and explained that Georgia-Pacific had

“the right to promote, suspend, demote, transfer or relieve employees from duty

because of lack of work or other just cause, discipline and discharge employees for

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just cause and establish and enforce reasonable safety and work rules.” The next

key provision, Article 24, addressed the company’s drug and alcohol policy. First,

Article 24 laid out a drug-testing program for instances where Georgia-Pacific had

“reasonable cause to believe that an employee is under the influence of alcohol or a

controlled substance” and stated that “[i]f the employee refuses to take the test or,

having taken the test registers a positive finding[,] the employee shall be subject to

immediate discharge.” Article 24 also outlined a “a ‘zero tolerance’ random drug

testing program” that Georgia-Pacific said it would establish in the future. And it

stated that among the “[e]lements of the plan,” one would be “[d]ischarge for a

positive test result.”1

In summarizing the facts, the arbitrator explained that the morning before his

random drug test, Irvin had woken up with a bad cough and taken a swig of cough

syrup. But he had the wrong bottle—rather than taking his bottle of non-

prescription cough syrup out of the medicine cabinet, Irvin had gotten a hold of his

wife’s prescription cough syrup. The Union had argued that the two bottles looked

very similar, and the arbitrator reasoned that mistaking one for the other was an

innocent mistake. And, the arbitrator observed, Irvin was only tested on the day in

question because he and another employee had agreed to serve as each other’s

1
Georgia-Pacific eventually established just such a plan. Notably, it provided for termination in
the event of a positive test result unless “otherwise prohibited by a collective bargaining
agreement.”
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testing witnesses so as to not delay the drug test. (The usual witness, the plant

guard, wasn’t around at the time.) The arbitrator determined that the contract

required “just cause” for termination and that Irvin’s innocent conduct made it

impossible to say Georgia-Pacific had just cause to fire him. Yet, because the

Contract embraced both the “just cause” standard and announced a “zero

tolerance” random drug-testing program, the arbitrator determined that some

discipline was required. Accordingly, he ordered Georgia-Pacific to return Irvin to

work and make him whole for the time lost due to termination, except for a 90-day

suspension period.

Georgia-Pacific turned to the district court for relief. Georgia-Pacific argued

that the arbitrator’s decision should be vacated because he had unlawfully modified

the contract. The district court agreed. 2 Carefully parsing the language of the

contract and the nuances of our circuit precedent, the court concluded that the just-

cause standard was satisfied because, on its analysis, the contract’s language

allowed Georgia-Pacific to fire any employee who failed a drug test. So, the

district court reasoned, once the arbitrator determined that Irvin had indeed failed a

drug test, he had no authority to determine that no just cause for termination

existed. That the arbitrator did so anyway meant that the arbitrator had exceeded

2
The district court referred the matter to a magistrate judge, and eventually adopted the
magistrate judge’s report and recommendation as its opinion and entered judgment consistent
with it.
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his authority under the contract, and so his decision had to be vacated. Separately,

the district court denied Irvin’s request to be dismissed from the action, finding

that he was a proper party under § 301 of the Labor Management Relations Act of

1947, 29 U.S.C. § 185, under the Supreme Court’s decision in Hines v. Anchor

Motor Freight, Inc., 424 U.S. 554 (1976).

The Union and Irvin appealed.

II

“[O]rders vacating arbitration awards, like orders confirming them, are to be

reviewed for clear error with respect to factual findings and de novo with respect to

the district court’s legal conclusions.” Gianelli Money Purchase Plan & Tr. v.

ADM Inv. Servs., Inc., 146 F.3d 1309, 1311 (11th Cir. 1998). “[C]ourts may

vacate an arbitrator’s decision ‘only in very unusual circumstances.’” Oxford

Health Plans LLC v. Sutter, 569 U.S. 564, 568 (2013) (quoting First Options of

Chi., Inc. v. Kaplan, 514 U.S. 938, 942 (1995)).

A

“A federal court’s review of an arbitration award is extremely ‘narrow.’”

IMC-Agrico Co. v. Int’l Chem. Workers Council of United Food & Com. Workers

Union, AFL-CIO, 171 F.3d 1322, 1325 (11th Cir. 1999) (quoting United

Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960)).

“Because the parties have contracted to have disputes settled by an arbitrator

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chosen by them rather than by a judge, it is the arbitrator’s view of the facts and of

the meaning of the contract that they have agreed to accept.” United Paperworkers

Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37–38 (1987). The Supreme

Court has emphasized that limited review of arbitral decisions “maintain[s]

arbitration’s essential virtue of resolving disputes straightaway.” Hall St. Assocs.,

L.L.C. v. Mattel, Inc., 552 U.S. 576, 588 (2008). So, although an arbitrator “may

not ignore the plain language of the contract,” a court “should not reject an award

on the ground that the arbitrator misread the contract.” Misco, 484 U.S. at 38. The

question we face “is not whether the arbitrator construed the parties’ contract

correctly, but whether he construed it at all.” Sutter, 569 U.S. at 573. If he

“arguably” did so, then his “construction holds, however good, bad, or ugly.” Id.

at 572–73.

We hold that the arbitrator “arguably” interpreted the contract here and,

accordingly, that his decision should not have been vacated. Reviewing the

arbitrator’s decision and the district court’s analysis of it shows that, whether

rightly or wrongly, the arbitrator grappled with the text of the contract. Though he

understood the portion concerning discharge for positive results differently than

the district court did, the arbitrator didn’t ignore or modify that language.

At the outset of his decision, the arbitrator framed the dispute as one

“regarding the exercise by [Georgia-Pacific] of its contractual authority to

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discharge an employee who tested positive on a random drug test.” And in his

discussion of the issues, he posed the arbitration’s central question this way: “Does

the Contract require the company to demonstrate just cause in order to terminate an

employee who has tested positive for opiates during a random drug screen?”

Turning to Georgia-Pacific’s position, he distilled it as “[Irvin’s] positive test is the

required evidence of just cause.” Then, the arbitrator characterized the part of the

contract concerning Georgia-Pacific’s the random drug-testing program as a

“commitment” and asked whether Georgia-Pacific’s interpretation of the policy

made to fulfil that commitment was “under the Parties’ contract, . . . enforceable

with regard to [Irvin] and . . . his circumstances?”

The arbitrator’s answer was no. Whether that’s right or wrong doesn’t

matter for our purposes—all that matters is that the arbitrator’s answer flowed

from his interpretation of the contract. The arbitrator emphasized that another

provision of the contract limited Georgia-Pacific’s power “to discipline and

discharge employees to just cause.” He then explained why he couldn’t conclude

that “just cause” existed under these circumstances. If his efforts had simply been

free-wheeling policymaking, then vacatur would have been justified. But they

weren’t, and so it wasn’t.

Much of the district court’s analysis reinforces the same conclusion. The

district court led off its analysis by stating that “[t]he Arbitrator based his decision

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on the interplay of provisions in Articles 8 and 24 of the Contract.” That’s right,

and it shows that the arbitrator’s decision was an exegetical one. So does the

district court’s summary of the arbitrator’s analysis on the “zero tolerance” policy:

“[I]nterpreting Article 8, Section 2 as ‘limiting Management’s right to discipline

and discharge employees to just cause,’ the Arbitrator rejected Georgia-Pacific’s

position, instead appearing to accept the Union’s argument that Georgia-Pacific

‘must synchronize the just cause standard in the Contract with the Zero Tolerance

of the drug policy.’” Again, that’s right. As the district court recognized, the

arbitrator interpreted the contract as a whole and attempted to synthesize the

provisions that were (perhaps) in tension. That answers “the sole question for

us”—specifically, “whether the arbitrator (even arguably) interpreted the parties’

contract.” Sutter, 569 U.S. at 569. When that happens, the arbitrator’s decision

should be affirmed.

The district court reached the opposite conclusion based on our decision in

Warrior & Gulf Nav. Co. v. United Steelworkers of Am., AFL-CIO-CLC, 996 F.2d

279 (11th Cir. 1993). Warrior & Gulf also involved an employee who was

terminated for violating a drug-testing policy. Id. at 279–80. There, the contract

between the employer and the union included the specific terms of the drug-testing

policy: “In the event a positive result is obtained in a test administered to an

employee who has been suspended without pay pursuant to [another provision of

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the contract], the employee is subject to immediate discharge.” Id. at 280 n.4. The

arbitrator in that case found that the employee had previously been suspended

without pay, as required by the contract, but determined that the contract’s “just

cause” provision didn’t allow for termination without “‘just and equitable’

procedures.” Id. at 280. Because the arbitrator felt those were lacking in that

instance, he reduced the discipline imposed from discharge to a suspension. Id.

The district court vacated that decision, and we affirmed. Id. at 279. That

was because the contract there said “that an employee who tests positive a second

time is ‘subject to immediate discharge,’” and because that “express language

g[ave] management the complete discretion to fire an employee.” Id. at 281. So,

once the arbitrator determined that the employee had tested positive a second time,

the contract’s express terms required the arbitrator to affirm the company’s

decision to fire the employee. Id. And the contract’s “just cause” provision was

satisfied because the contract “expressly address[ed] the particular contingency of

a second positive drug test.” Id. There was no need to synthesize the two

provisions, nor any license to modify them. Instead, we reaffirmed “the principle

that arbitrators must follow the express terms of collective bargaining agreements.”

Id. at 281 n.4.

In this case, the district court said that just as the contract in Warrior & Gulf

provided management with the discretion to fire any employee with a second

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positive test, so this contract expressly gave Georgia-Pacific the discretion to fire

Irvin. And, as in Warrior & Gulf, because the contract provided for termination in

the event of a positive test, that necessarily satisfied the just-cause standard. The

district court based that reasoning on Article 24 of the contract, which said that one

of the elements of the future drug-testing policy would be “[d]ischarge for a

positive test result.” So, on the district court’s understanding, as soon as the

arbitrator found that Irvin had indeed tested positive, the arbitrator could do

nothing but affirm his termination without ignoring the express language of the

contract. It was Warrior & Gulf all over again.

But we see daylight between Warrior & Gulf and this case. That contract

included the express (and apparently complete) terms of the drug-testing policy,

spelling out each provision in some detail. See Warrior & Gulf, 996 F.2d at 279–

80 nn. 1–4 (quoting provisions of drug-testing policy contained in contract). In

other words, the contract included the specifics of the policy. Here, by contrast,

the language in the contract is more skeletal. The parties agreed to create a random

drug-testing plan, listed “elements” of that plan that would apply, and included

among those elements “[d]ischarge for a positive test result.” That, though, is not a

contract that clearly and expressly gave management unfettered discretion to fire

any employee with a positive result—it’s a contract that spelled out some general

terms and punted on particulars until a fleshed-out policy could be crafted.

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That is a difference in both kind and degree. As to kind, Warrior & Gulf

involved a fully realized drug-testing policy that was written into the contract.

Here, we have only a promise to promulgate a random drug-testing policy in the

future and some preliminary pieces of that plan’s framework. And as to degree,

the language in Warrior & Gulf was much more particularized. The Warrior &

Gulf Court emphasized that the contract there “expressly addresse[d] the particular

contingency of a second positive drug test.” 996 F.2d at 281. The language in this

contract is much less specific, as one might expect for an “element” of a plan that

the parties agree will be implemented later. Indeed, if construed in a vacuum, the

“[d]ischarge for a positive test result” element here would seem to require

discharge for any and all positive test results. But we don’t construe that language

in a vacuum—we know from the rest of the contract that it was only an element of

a drug-testing policy that Georgia-Pacific promised to complete later. And we

know that under that policy, not every “positive test result” led inexorably to

termination. For instance, the drug-testing policy allowed for the cancellation of

flawed tests and for employee challenges of positive results through retesting.

That policy also explained that an employee with an initial “positive” result can get

that result changed to “negative” if he provides a valid prescription for medicine

that could have caused the positive result. That the parties didn’t understand this

element of the random drug-testing plan to require termination for every “positive

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result” also suggests that in this case, unlike in Warrior & Gulf, some

interpretation was required to synthesize the “just cause” provision with the

random drug-testing plan.

Focusing on the part of the contract just before the outline of the random

drug-testing policy reinforces the same conclusion. In contrast to the random drug-

testing plan, the portion of the contract that addressed instances where Georgia-

Pacific “has reasonable cause to believe that an employee is under the influence of

alcohol or a controlled substance” expressly and specifically provided for when

employees would be “subject to immediate discharge.” One provision within the

“reasonable cause” drug-testing plan even said that if an employee refuses to take a

test, “reasonable cause shall automatically exist to believe that the employee was

under the influence and just cause shall exist for immediate discharge.” Those

provisions demonstrate that the parties knew how to bargain for clear, specific

language that synthesized Article 24’s drug-testing plans with Article 8’s “just

cause” standard. And they show that the parties didn’t do that in laying out bare

elements of a random drug-testing policy. That decision left room for

interpretation of the contract, and the parties committed those interpretive

questions to the arbitrator. Because “[i]t is the arbitrator’s construction which was

bargained for,” Enter. Wheel & Car Corp., 363 U.S. at 599, the “arbitrator’s

construction holds, however good, bad, or ugly.” Sutter, 569 U.S. at 573.

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B

Next, we consider the district court’s denial of Irvin’s request to be

dismissed from the case. As the district court noted, the Supreme Court has said

that “Section 301 contemplates suits by and against individual employees as well

as between unions and employers.” Hines v. Anchor Motor Freight, Inc., 424 U.S.

554, 562 (1976) (emphasis added). On that basis, it denied Irvin’s request to be

dismissed from this action.

The Union says Hines doesn’t apply here because it only addressed a very

limited exception to the general rule that employees aren’t proper parties to suits

between unions and employers. That exception, according to the Union, only

allows employees to sue employers when the Union has failed in its duty of “fair

representation.” See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 131 (4th Cir.

2002). As the Union rightly notes, there’s no claim that the Union failed in its duty

of fair representation.

But that does not allow us to ignore Hines. And the Union’s argument

makes no sense of the language in Hines concerning suits “against” employees.

See 424 U.S. at 562. What’s more, the Supreme Court has reaffirmed that

language from Hines. See Groves v. Ring Screw Works, Ferndale Fastener Div.,

498 U.S. 168, 172 (1990) (“We have squarely held that § 301 authorizes ‘suits by

and against individual employees as well as between unions and employers.’”

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(quoting Hines, 424 U.S. at 562)). As a result, we cannot fault the district court for

denying Irvin’s request for dismissal here.

* * *

We reverse the district court’s judgment on the arbitration award and remand

for further proceedings consistent with this opinion, and we affirm the district

court’s judgment on Irvin’s request for dismissal.

REVERSED IN PART, REMANDED IN PART, AND AFFIRMED IN

PART.

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