Submitted September 25, 2013.
Corrected May 30, 2014.
Appeal from United States District Court for the Eastern District of Missouri - Hannibal.
For Associated Electric Cooperative, Inc., Plaintiff - Appellee: Rick Eugene Temple, Springfield, MO.
For International Brotherhood of Electrical Workers, Local No. 53, Defendant - Appellant: Michael E. Amash, Scott L. Brown, Blake & Uhlig, Kansas City, KS.
Before LOKEN, COLLOTON, and BENTON, Circuit Judges. COLLOTON, Circuit Judge, concurring in the judgment in part and dissenting in part.
LOKEN, Circuit Judge.
This appeal presents unusual labor arbitration issues. When an employer and employee enter into a last chance agreement (" LCA" ) enforcing the employer's drug policy without the union's participation, the employer subsequently invokes the LCA provision mandating discharge in the event of a violation, and the union claims this discipline was contrary to the " just cause" limitation in the grievance and arbitration provisions of the collective bargaining agreement (" CBA" ), what is the appropriate standard of review (i) for the arbitrator, and (ii) for this court in reviewing the arbitrator's award? Here, the employer is Associated Electric Cooperative, Inc. (" AECI" ), the union is Local 53 of the International Brotherhood of Electrical Workers (the " Union" ), and the discharged employee is grievant Leo Johnson. The arbitrator upheld the grievance, awarding Johnson reinstatement and back pay, concluding the LCA did not provide Associated just cause to terminate Johnson. The
district court vacated the award, concluding that the arbitrator overstepped his authority by refusing to enforce the LCA's mandatory discharge clause. The Union appeals. We reverse and enforce all but a portion of the award.
AECI operates the Thomas Hill Power Plant, which generates electricity for rural electric cooperatives that own AECI. At the time in question, approximately 175 AECI employees were represented by the Union and covered by a five-year CBA between the Union and AECI. Article I, Section 6(a), was a broad " Management Rights" clause, subject to a proviso in Section 6(c) that " discipline and/or discharge of employees shall be for just cause only, and such action shall be subject to the grievance and arbitration procedure." Article XII set forth detailed grievance and arbitration procedures. Article XII, Section 4(a)(4), provided that the " decision of the Arbitrator shall be final and binding on all parties." Section 4(b) provided that the Arbitrator " shall have no authority to add to, detract from or in any way modify the terms of this Agreement." Article XII did not include agreed procedures for the use of progressive discipline or
LCAs. Compare Bureau of Engraving, Inc. v. Graphic Commc'n. Int'l Union, Local 1B, 284 F.3d 821, 823 (8th Cir. 2002).
On April 18, 2011, AECI subjected employees at work that day to random drug testing, a practice AECI instituted in 2008 after discussions with the Union. Leo Johnson was a heating, ventilation, air conditioning, and refrigeration mechanic who had worked for AECI for over 28 years. He provided a urine sample and then informed the Plant Manager that he would test positive because he had recently smoked marijuana with family members while on leave to attend his brother's funeral. AECI offered Johnson Union representation for a disciplinary proceeding. He declined, signed AECI's standard form LCA, and AECI suspended him without pay. The LCA specifically provided: " I understand and agree that if I report to work under the influence, test positive, or I am in the possession of alcohol, drugs, or controlled substances on Cooperative property, my employment with AECI will be terminated."
One week later, AECI advised Johnson by letter that he would likely qualify for " FMLA sick leave" when he began the chemical dependency treatment required by the LCA, and that his return to work " will be contingent on . . . successful completion of a treatment program, and a negative drug screen result." The next day, AECI informed Johnson that the test report of his April 18 urine sample was negative (did not reveal marijuana use). Johnson nonetheless remained on suspension and continued treatment under the terms of the LCA.
While suspended, Johnson submitted to two drug tests that showed trace amounts of THC (marijuana), which prevented his return to work under AECI's drug policy, and the presence of a benzodiazepine drug. Johnson had a valid prescription for clonazepam, a benzodiazepine (brand name Klonopin). On June 3, the treatment counselor advised AECI that Johnson needed no further treatment and was clear to return to work. AECI instructed Johnson to appear for a return-to-work drug screen. Laboratory analysis of Johnson's urine sample revealed the presence of a different benzodiazepine, diazepam (brand name Valium), for which Johnson did not have a prescription. AECI's drug testing Guidelines provide that taking a non-prescribed medication ...