Oil, Chemical & Atomic Workers' International Union and Its Local 4-750 v. Shell Oil Company

5 F.3d 960, 144 L.R.R.M. (BNA) 2656, 1993 U.S. App. LEXIS 28711, 1993 WL 413858
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 3, 1993
Docket92-9582
StatusPublished
Cited by9 cases

This text of 5 F.3d 960 (Oil, Chemical & Atomic Workers' International Union and Its Local 4-750 v. Shell Oil Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oil, Chemical & Atomic Workers' International Union and Its Local 4-750 v. Shell Oil Company, 5 F.3d 960, 144 L.R.R.M. (BNA) 2656, 1993 U.S. App. LEXIS 28711, 1993 WL 413858 (5th Cir. 1993).

Opinion

W. EUGENE DAVIS, Circuit Judge:

Shell Oil Co. appeals the district court order requiring it to arbitrate a substance abuse policy with the appellee union under the terms of the collective bargaining agreement. Because we find that the agreement does not require arbitration, we reverse the judgment and grant Shell’s motion for summary judgment.

I.

Shell’s Norco complex, located about twenty-five miles west of New Orleans, manufactures energy and petrochemical products. The Oil, Chemical & Atomic Workers’ International Union and its Local 4-750 (the “union”) are the exclusive bargaining agents for operating, maintenance, warehouse, and laboratory employees at the Norco complex. Shell and the union entered into a collective bargaining agreement (the “agreement”), effective from February 1, 1990, through January 1, 1993.

In 1990, Shell decided to revise its existing drug and alcohol policy. In January 1991, Shell informed the union that it was going to implement a new “Substance Abuse Policy” (the “policy”). Shell and the union held several meetings to discuss the policy. The union submitted its own drug and alcohol policy to Shell. Shell and the union then held additional sessions seeking to negotiate an acceptable substance abuse policy. Thereafter, Shell announced that it would implement its policy despite union objections.

The policy mandates “for cause” testing, pre-employment testing as part of the application process, and random testing of all *961 employees in positions Shell designates as safety or environmentally sensitive. Testing procedures include saliva and breath analysis and blood and urine testing. The policy also allows Shell to conduct “reasonable searches” of employees, their vehicles, and their personal effects while on Shell premises or on Shell business. Under the policy, Shell ordinarily discharges an employee for failing to cooperate with a search, refusing to consent to a test, or testing positively a second time.

In December 1991, the union filed a grievance complaining about the policy. Shell advised the union that the policy was a health and safety policy and thus not subject to the grievance and arbitration procedures of the collective bargaining agreement. The union requested arbitration of the grievance, which request Shell declined citing Article 16 of the agreement. 1

The union then filed suit to compel arbitration. Shell moved for summary judgment, maintaining that the policy was a health and safety policy governed by Article 16 and therefore not subject to arbitration. The union filed a cross motion for summary judgment, ■ arguing that the policy was not a health and safety policy and that Article 16 excluded from arbitration only health and safety recommendations made by the Health and Safety Committee or by the union alone.

The district court granted the union’s motion for summary judgment, denied Shell’s motion and ordered the case referred to arbitration.. The court interpreted article 16 to exempt from arbitration “only those recommendations made by the Health and Safety Committee and proposals offered by the Union itself.The court reasoned that because Shell, rather than the union, proposed the policy, the policy was not excepted from arbitration. On appeal, Shell argues that the district court erred in concluding that the substance abuse policy was arbitrable.

II.

We start from the bedrock premise that arbitration is the favored method of resolving labor disputes. USWA v. American Mfg., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); USWA v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); and USWA v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). However, the Supreme Court has made it clear that “arbitration is a matter of contract and a party cannot be required to submit to arbi *962 tration any dispute which he has not agreed so to submit.” Warrior & Gulf Navigation, 363 U.S. at 582, 80 S.Ct. at 1353.

The collective bargaining agreement in this case requires arbitration of all complaints arising from the application or interpretation of the agreement. 2 The agreement, however, in article 16 dealing with “Health and Safety,” excludes certain matters from article 10’s arbitration requirement. The parties first dispute whether the substance abuse policy fits under article 16.

The union argues that the substance abuse policy is not governed by article 16 because the policy is not a health and safety policy. In support of its argument, the union argues that Shell did not promulgate the policy in response to existing health and safety problems at the refinery. The union also argues that Shell is attempting to circumvent arbitration by arbitrarily labeling this policy as a health and safety policy.

We reject the union’s position that the substance abuse policy is not a health and safety policy governed by article 16. A policy need not be promulgated in response to existing health and safety problems to be considered a health and safety policy under article 16. We have no doubt that promotion of the health and safety of the work force is the only significant reason for the adoption of a substance abuse policy in a chemical plant.

Two recent eases dealing with the arbitra-bility of substance abuse programs offer support for Shell’s argument. In United Steelworkers of America v. ASARCO, Inc., 970 F.2d 1448, 1451 (5th Cir.1992), the court ordered arbitration of a drag and alcohol policy. The court characterized the dispute between the parties as one involving application of the provision requiring the company to make reasonable provisions for the safety and health of its employees. Again in Oil, Chemical & Atomic Workers Int. Union v. Phillips 66, 776 F.Supp. 1189, 1193-94 (S.D.Tex.1991), aff'd, 976 F.2d 277 (5th Cir.1992), the court held, inter alia, that a drug testing policy was arbitrable because it violated the health and safety provisions of the collective bargaining agreement. See also Independent Oil Workers Union v. Mobil Oil Corp., 777 F.Supp. 391, 395 (D.N.J.1991) (noting the applicability of health and safety provisions to a drag and alcohol testing program in finding the program subject to arbitration).

We conclude therefore that the substance abuse policy is a health and safety policy governed by article 16. We next consider the union’s alternative argument that arbitration is required under article 16 because the policy was unilaterally imposed by Shell.

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5 F.3d 960, 144 L.R.R.M. (BNA) 2656, 1993 U.S. App. LEXIS 28711, 1993 WL 413858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oil-chemical-atomic-workers-international-union-and-its-local-4-750-v-ca5-1993.