dissenting. I dissent because I believe that the prevailing opinion has missed the point involved and fails to recognize longstanding precedent. I do not believe the chancellor erred in concluding that the award did not draw its essence from the labor agreement or that the arbitrator exceeded his authority.
In its original form, the collective bargaining agreement provided: “No employee will be discharged or disciplined without sufficient and just cause.” Subsequently, appellee proposed a resolution to the collective bargaining agreement to promote an anti-drug program. The resolution provided: “Any employee, or applicant for employment, of the [Central Arkansas Transit] Authority who fails to pass any required drug screening procedure shall be terminated.” The union filed a grievance contesting the implementation of the anti-drug program but abandoned its grievance. Because the union failed to pursue the grievance, the resolution containing the anti-drug program became effective on January 22, 1991. The collective bargaining agreement provided that, if an abandoned grievance has not been settled nor arbitration requested by the company or the union, the grievance is “forever barred and extinguished.” The arbitrator stated that the issue before him was whether appellant Jane Doe was discharged for just cause when she failed a drug test. He acknowledged that he could not consider the union’s protest against the anti-drug policy because the union dropped the earlier grievance. Appellants do not dispute that the union’s failure to pursue the grievance rendered the implementation and terms of the drug program non-arbitrable. I think the majority opinion ignores the fact that the reasonableness of the drug policy (which required termination in this instance) was not an issue the arbitrator could decide.
An arbitrator’s award draws its essence from the collective bargaining agreement so long as the interpretation can in some rational manner be derived from the agreement, viewed in the light of its language and context. Id. The award does not draw its essence from the collective bargaining agreement when the arbitrator apparently based his award on thought, feeling, policy, or law outside the contract. Tootsie Roll Indus. Inc. v. Local Union No. 1, 832 F.2d 81 (7th Cir. 1987). I agree that every reasonable presumption should be in favor of the arbitrator’s award, and it should not be vacated unless it clearly appears that it was made without authority or was the result of fraud or mistake. Chrobak v. Edward D. Jones & Company, 46 Ark. App. 105, 878 S.W.2d 760 (1994). However, if the arbitration award does not “draw its essence” from the contract, the reviewing court must vacate or modify it. International Bhd. of Elec. Workers v. Sho-Me Power Corp., 715 F.2d 1322 (8th Cir. 1983); see United Steelworkers of America v. Enterprise Wheel and Car Corp., 363 U.S. 593 (1960). Courts cannot interfere with an arbitrator’s interpretation unless positive assurance exists that the contract is not susceptible to the arbitrator’s interpretation. International Bhd. of Elec. Workers, supra. Additionally, when the arbitrator creates a contract term that does not exist in the bargaining agreement, he impermissibly administers “his own brand of industrial justice.” International Assoc. of Machinists and Aerospace Workers v. Lourdes Hosp., Inc., 958 F.2d 154 (6th Cir. 1992).
An arbitrator is commissioned to interpret and apply the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. United Steelworkers v. Enterprise Wheel and Car Corp., supra. Although the agreement provides that no employee will be discharged without “sufficient and just cause,” the anti-drug policy clearly states that an employee who fails.a drug test “shall be terminated.” The arbitrator did not enforce the plain provisions of the anti-drug policy but instead rewrote the policy so that appellant Jane Doe would be disciplined rather than discharged. I believe the arbitrator had no authority to modify the discharge penalty and that the chancellor correctly held that the anti-drug policy and collective bargaining agreement were not susceptible to the arbitrator’s interpretation.