E.I. DuPont de Nemours and Co. v. Local 900 of Intern. Chemical Workers Union, AFL-CIO

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-6335
Summary Calendar
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E.I. DuPONT De NEMOURS AND
COMPANY,

Plaintiff-Counter
Defendant-Appellee,

v.

LOCAL 900 OF THE INTERNATIONAL
CHEMICAL WORKERS UNION, AFL-CIO,

Defendant-Counter
Plaintiff-Appellant.

_________________________________________________________________

Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(August 4, 1992)
Before KING, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

Local 900 of the International Chemical Workers Union, AFL-

CIO, appeals from a judgment of the district court reversing a

finding by an arbitrator as to the propriety of the discharge of

two employees from a DuPont chemical plant under a collective

bargaining agreement. We affirm the judgment of the district

court.

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 I. FACTS AND PROCEDURAL HISTORY

Two employees of E.I. DuPont de Nemours and Company

("DuPont"), James A. Davidson and Joseph S. David ("Grievants"),

were discovered in a small shed on DuPont property in which a

supervisor detected the odor of marijuana. Grievants voluntarily

submitted to a drug test which proved positive. In February

1989, they were discharged for use of marijuana on company

premises. Grievants filed grievances under Article VIII, Section

1 of a collective bargaining agreement ("Agreement"), which

prohibited the discharge of employees except for "just cause."

Pursuant to Article VII, Section 2 of the Agreement, DuPont and

Local 900 of the International Chemical Workers Union, AFL-CIO

("Union") executed a Submission Agreement, which permitted an

arbitrator to determine if DuPont had indeed discharged Grievants

for just cause. That same section of the Agreement provided that

the decision of the arbitrator "shall be restricted to the issues

specified in the Submission Agreement, . . . provided the

decision does not exceed the authority conferred by this

Agreement on the Arbitrator."

At the arbitration hearing on August 15, 1990, the parties

stipulated that the issue to be determined by the arbitrator was

limited to the following: "Were the Grievants discharged for

just cause under the contract? If not, what is the appropriate

remedy?" The arbitrator found that DuPont had proven, by clear

and convincing evidence, that Grievants had used marijuana on

company premises. He determined, however, that while discharge

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was an available punishment, in this case it was inappropriate,

and therefore ordered reinstatement, rehabilitative treatment,

and follow-up drug testing.

On April 10, 1991, DuPont filed an action in federal

district court for review of the arbitrator's award pursuant to

29 U.S.C. § 185. Both parties moved for summary judgment, and on

October 29, 1991, the district court granted DuPont's motion.

According to the district court, the arbitrator exceeded his

jurisdictional authority when he found just cause to discharge

the employees but nevertheless fashioned a remedy other than

discharge. The issue as stipulated by the parties, reasoned the

district court, gave the arbitrator authority to fashion a remedy

only in the event he found no just cause. On November 18, 1991,

the Union filed a timely notice of appeal.

II. DISCUSSION

An arbitrator's award will not be disturbed if his decision

"draws its essence from the collective bargaining agreement," and

is not based on the arbitrator's "own brand of industrial

justice." United Steelworkers of America v. Enterprise Wheel &

Car Corp., 363 U.S. 593, 597 (1960). Courts are free, however,

"to scrutinize the award to ensure that the arbitrator acted in

conformity with the jurisdictional prerequisites of the

collective bargaining agreement." Delta Queen Steamboat Co. v.

District 2 Marine Engineers Beneficial Ass'n, 889 F.2d 599, 602

(5th Cir. 1989), cert. denied, 111 S.Ct. 148 (1990). If the

court finds that the arbitrator exceeded the arbitral authority

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laid out in the agreement, then the district court's action

vacating the award is appropriate. Container Prods., Inc. v.

United Steelworkers of America, 873 F.2d 818, 820 (5th Cir.

1989); Delta Queen, 889 F.2d at 602. We review the district

court's ruling that the arbitration award was not grounded on the

agreement of the parties de novo. Id.; HMC Management Corp. v.

Carpenters Dist. Council, 750 F.2d 1302, 1304 (5th Cir. 1985).

The parties appear to agree that the discharge of Grievants

was an available disciplinary action only if DuPont proved by

clear and convincing evidence1 that the employees used marijuana

while on DuPont premises.2 The arbitrator found that DuPont had

proven by clear and convincing evidence that Grievants had indeed

used marijuana on company premises. The arbitrator expanded upon

this finding:

Unquestionably, the Company made it plain to its
employees that using drugs on the Company premises was
a discharge offense. Neither Grievant suggested that
they were unaware of the potential consequences of what
was, ultimately, a voluntary act.

While the arbitrator did not explicitly find that DuPont had

just cause to discharge Grievants, the district court found that

the language used by the arbitrator constituted an implicit

finding of just cause. We agree. This court has held that where

an arbitrator implicitly finds that just cause exists, he need

1
The arbitrator settled upon the "clear and convincing"
standard and the parties do not contest that standard.
2
The parties agree that the Grievants had marijuana in
their systems while on DuPont premises. This was also a rule
violation, but not one sufficient to constitute just cause for
discharge.

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not recite the operative phrase "just cause." See Delta Queen,

889 F.2d at 604 ("proper cause"); Container Prods., 873 F.2d at

820 ("just cause"). In Delta Queen, we stated that

[t]he phrase carries no talismanic significance in
labor jurisprudence. It is simply a term of art that
defines the many unrelated, independent acts that serve
as grounds for employee discipline under the agreement.

Id. We therefore agree with the district court that the

arbitrator's language with regard to Grievants' use of marijuana

on company premises constituted a finding of just cause.

The Submission Agreement provided to the arbitrator by the

parties permitted the arbitrator "solely to determine whether the

PLANT violated Article VIII, Section 1 of said Agreement by

discharging [Grievants]. . . ." Article VIII, Section 1 of the

Agreement provides that "[t]he PLANT agrees that no employee will

be discharged . . . except for just cause." The Submission

Agreement was silent as to the remedial authority of the

arbitrator. However, at the commencement of the arbitration

hearing, the parties provided the arbitrator with the following

stipulated issue which specified his remedial powers:

Were the Grievants discharged for just cause under the
contract? If not, what is the appropriate remedy?

The Union argues now, as it did before the district court, that

the second sentence above empowers the arbitrator to fashion a

remedy regardless of a finding of just cause for termination.

The district court disagreed, reasoning that the stipulation

gives the arbitrator remedial power only in the event that just

cause is not shown.

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 Again, we agree with the reasoning of the district court.

The plain, unambiguous language of the stipulation reveals that

an "appropriate remedy" is only at issue if Grievants were

discharged without just cause. The stipulation does not address

any authority on the part of the arbitrator in the event just

cause was shown by DuPont. Cf. Container Prods., 873 F.2d at 819

(affirming district court's vacatur of arbitration award where

arbitrator, who was empowered with remedial authority only in the

event discharge was without just cause, fashioned remedy despite

implicit finding of just cause). The Submission Agreement itself

was silent as to the arbitrator's remedial authority, and the

stipulated issue was unambiguous as to the limits of this

authority. Cf. Delta Queen, 889 F.2d at 604 ("arbitral action

contrary to express contractual provisions will not be

respected"). Accordingly, we hold that the district court's

determination that the arbitrator exceeded his authority was

proper.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court, vacating the arbitration award, is AFFIRMED.

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