United States Court of Appeals,
Fifth Circuit.
No. 94-60772.
GULF COAST INDUSTRIAL WORKERS UNION, Plaintiff-Appellant,
v.
EXXON COMPANY, USA, Defendant-Appellee.
Dec. 18, 1995.
Appeal from the United States District Court for the Southern
District of Texas.
Before REYNALDO G. GARZA, BARKSDALE and EMILIO M. GARZA, Circuit
Judges.
REYNALDO G. GARZA, Circuit Judge:
Gulf Coast Industrial Workers Union brought suit against Exxon
Company, USA to enforce an arbitration award in favor of one of its
members, Robert Chamblin. The district court granted summary
judgment in favor of Exxon Company, USA, vacating the arbitration
award on several grounds. We affirm on the ground that the
arbitrator misled Exxon into believing that evidence was admitted,
and then refused to consider that evidence.
I.
BACKGROUND
Robert Chamblin ("Chamblin") was employed by Exxon Company,
USA ("Exxon") as a process technician at Exxon's Baytown Refinery
in Baytown, Texas. As a process technician, Mr. Chamblin was
responsible for producing and handling highly volatile gasses and
liquids at high temperatures and pressures. On November 3, 1992,
at Exxon's request, agents of Interquest, Inc. ("Interquest"), a
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canine contraband detection service, searched various parts of the
Baytown Refinery for drugs and alcohol. One of the drug dogs used
by Interquest alerted to Chamblin's car, which was parked in the
Refinery parking lot. Chamblin then allowed Interquest's agent,
Debbie Farmer, to search his vehicle. Farmer found the stub of a
hand-rolled cigarette, which she suspected to contain marijuana,
some green vegetation, and a suspected marijuana seed. She placed
the items that she found in a plastic bag for subsequent testing.
Another Interquest employee, Mike Ferdinand, later performed
a Dequenois Levine Reagent ("DLR") test on the substances found in
Chamblin's truck. A DLR test determines whether a substance
contains marijuana. The test showed that the cigarette stub
contained marijuana, but that the leafy substance did not.1 The
cigarette stub was consumed during the test.
Under Exxon's Alcohol and Drug Use Policy (the "Drug Use
Policy"), Exxon was allowed to require employees to take a drug
test "where reasonable cause exist[ed] to suspect alcohol or
controlled substance misuse." The Drug Use Policy further provided
that "refusal to submit to testing is grounds for disciplinary
action, including termination of employment." After learning that
the cigarette stub found in Chamblin's car tested positive for
marijuana, Exxon ordered him to submit to a reasonable cause drug
test. Chamblin refused to submit to such a test.
Exxon twice explained to Chamblin that he had been ordered to
submit to a test, and that he could be terminated for refusing to
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The suspected marijuana seed was not tested.
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submit. Exxon also provided him with a copy of the Drug Use
Policy, and read to him the portion of the policy stating that he
could be terminated for refusing to submit to a drug test.
Chamblin stated that he understood the consequences of his actions,
but still refused to submit to a test. Exxon then suspended
Chamblin, and later terminated him for refusing to take a drug
test.
Chamblin was a member of the Gulf Coast Industrial Workers
Union (the "Union"), which had a collective bargaining agreement
("CBA") with Exxon. Under the CBA, Exxon could only discharge a
worker for just cause. Both possession of marijuana on Exxon
property and refusing to take a drug test when reasonable cause to
suspect drug use constituted just cause. The CBA also provided
that the Union could challenge the discharge of a worker by
submitting the dispute to arbitration. The Union submitted the
issue of whether Exxon had just cause to terminate Chamblin to
arbitration.
At the arbitration hearing, Farmer testified that the drug dog
alerted to Chamblin's vehicle and that, based on her thirteen years
of experience, the substance found in Chamblin's vehicle appeared
to her to be marijuana. She also testified that Ferdinand
performed a DLR test on the hand-rolled cigarette stub, which
confirmed the presence of marijuana. Exxon attempted to elicit
testimony to establish Substance Analysis Report ("SAR"), which
contained the drug test results, as a business record. However,
the Arbitrator informed Exxon that it did not have to be
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established, because it was already in evidence.2 The Union did
not object to Farmer's testimony about Ferdinand's performance of
the drug test. Exxon did not present any evidence of the accuracy
of the DLR test; however, the parties had already stipulated that
"[t]he DLR test is an accurate method for testing substances for
the presence of marijuana." Record at 173. Ferdinand did not
testify at the arbitration hearing.
The arbitrator ruled that Exxon did not have reasonable cause
to order Chamblin to submit to drug testing, and ordered that he be
reinstated with back pay. The arbitrator so ruled because he found
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The following dialogue occurred during the arbitration
hearing:
Counsel for Exxon: I would like to move to have this
submitted as a business record.
Arbitrator: Well, it's already in.
Counsel for Exxon: Well, it was stipulated—
Counsel for Union: Yeah I'm not going to object to the
admission of any of them, I'm going to have
cross-examination to question you about them so you
don't have to go through all that form of processing,
they are all in.
Counsel for Exxon: Okay.
Arbitrator: That was my understanding.
Counsel for Exxon: Well, just for clarification, my
understanding was that it was stipulated as a document
from Interquest but it didn't have the stipulation as a
business record.
Arbitrator: If there are objections to its admission into
evidence, Ms. Groth will object and otherwise let's
just assume they're all in.
Counsel for Exxon: Okay....
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that Exxon did not prove that the substance found in Chamblin's
vehicle was marijuana. He stated that the SAR did not establish
that the substance was marijuana because it was hearsay, and did
not even have the status of a business record. The arbitrator then
spent five pages of his decision in a diatribe on the unreliability
of hearsay.
The Union then filed suit against Exxon in the district court
pursuant to Section 301 of the Labor Management Relations Act, 29
U.S.C. § 185, to enforce the arbitration award. Exxon filed a
counterclaim seeking to vacate the award. Both parties moved for
summary judgment. The district court granted summary judgment in
favor of Exxon, vacating the arbitration award on several grounds.
One of those grounds was that the arbitrator lulled Exxon into
believing that the SAR was admitted into evidence and then refused
to consider it on the ground that it was unreliable hearsay. The
Union appeals from the district court's vacatur.
II.
DISCUSSION
In reviewing a district court's vacatur of an arbitration
award, we posit the same question addressed by the district court:
whether the arbitration proceedings were fundamentally unfair.
Forsythe Intern., S.A. v. Gibbs Oil Co., 915 F.2d 1017, 1021 (5th
Cir.1990). We review the district court's conclusion de novo. Id.
"Judicial review of an arbitration award is extraordinarily
narrow." Antwine v. Prudential Bache Securities, Inc., 899 F.2d
410, 413 (5th Cir.1990). Under the Federal Arbitration Act, 9
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U.S.C. § 1, et seq., we can only disturb an arbitration award on
the grounds set out in that Act. The case before us, however, fits
squarely into one of those grounds.
Section 10 of the Federal Arbitration Act provides that a
district court may vacate an arbitration award where—
the arbitrators were guilty of misconduct in ... refusing to
hear evidence pertinent and material to the controversy; or
of any other misbehavior by which the rights of any party have
been prejudiced.
In the instant case, not only did the arbitrator refuse to consider
evidence of the positive drug test, he prevented Exxon from
presenting additional evidence by misleading it into believing that
the SAR had been admitted as a business record. Exxon attempted to
establish the SAR as a business record, but the arbitrator stopped
it, stating that the test was already admitted. Further, Exxon had
no reason to have Ferdinand testify as to how he conducted the DLR
test, because neither the arbitrator nor the Union objected to
Farmer's testimony that the cigarette stub found in Chamblin's
vehicle tested positive for marijuana. The arbitrator used Exxon's
failure to present evidence that he told Exxon not to present as a
predicate for ignoring the test results. Such misconduct falls
squarely within the scope of Section 10, and is grounds for
vacatur.
III.
CONCLUSION
Accordingly, the district court's vacatur is AFFIRMED. We
note that this vacatur is without prejudice to the parties
proceeding in accordance with law.
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