IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 91-6335 Summary Calendar ____________________
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.
1 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
2 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
3 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.
4 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.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 91-6335 Summary Calendar ____________________
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.
1 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
2 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
3 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.
4 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.
5 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.