Top US Court Mulls Company Power to Fire Drug-Users

["Sandy Perle" <sandyfl@earthlink.net>]

While this case involves a coal plant, it has direct bearing on 
nuclear utilities in the USA who automatically terminate an 
employee's employment if any of the "published" banned substances 
show up in a random drug test. This is not the case when the employee 
comes forward (prior to be selected for a random drug test) and 
enters a drug treatment program. It will be interesting to see how 
the courts treat this where safety is a prime consideration.

Top US Court Mulls Company Power to Fire Drug-Users

Washington, March 20 (Bloomberg) -- The top U.S. court will decide 
how much authority regulated companies have to fire unsafe workers, 
agreeing to review the case of coal-company truck driver who twice 
tested positive for marijuana. 

The Supreme Court will decide whether a P&L Coal Holdings Corp. unit 
must abide by an arbitrator's decision to reinstate the worker, as a 
lower court ruled. The company wants to void the arbitrator's 
decision on public-policy grounds, pointing to federal safety 
regulations. 

The case could affect employer rights beyond the drug-use context. 
Nuclear power companies have faced similar issues in attempts to fire 
workers considered to be safety hazards. The issue has divided courts 
around the country. 

The lower court ruling ``would inappropriately and unjustifiably 
undermine employers' ability to provide safe workplaces and to take 
necessary steps to protect life, property and the environment,'' 
argued the business-sponsored Institute for a Drug-Free Workplace. 

Unions and workers contend that once companies agree to submit 
disputes to arbitration, they must abide by the results as long as 
the decision wouldn't make them break the law. 

The justices will take up the case in their 2000-01 term, which 
begins in October. 

No Specific Rule 

Although judges have some power to overturn arbitrator decisions on 
public-policy grounds, the Supreme Court in 1987 said courts had to 
point to an ``explicit'' government policy. 

In that case, the justices unanimously barred a company from firing a 
paper-plant worker caught with marijuana in his car, faulting a lower 
court for basing its conclusions on ``speculation or assumption,'' 
rather than a review of existing laws. 

Lower courts have interpreted the 1987 decision in different ways. 
Some say judges may overturn only arbitrator awards that would 
violate a specific regulation or statute. Others say that, at least 
in industries governed by strict safety regulations, companies must 
be able to fire dangerous workers, even if they're not required to by 
law. 

P&L's Eastern Associated Coal Corp. tried to fire James Smith after 
he tested positive for marijuana twice in 15 months. Smith worked as 
a ``mobile equipment operator'' -- a position that required him to 
drive trucks weighing almost 30 tons. 

Both times the company sought to fire Smith, and both times an 
arbitrator said the company could take other disciplinary steps, but 
had to reinstate him. 

In the second case, arbitrator Jerome T. Barrett said he accepted 
Smith's explanation that the drug use was a one-time lapse sparked by 
a family problem. 

If not, Barrett said, he was ``confident that (Smith) will make 
another misstep with drug use and be caught.'' He required the worker 
to submit a letter of resignation and said the company could accept 
it if Smith tested positive for drugs again. 

Mandatory Testing 

The company appealed. Both a federal trial judge in Charleston, West 
Virginia and an appeals court upheld the arbitrator's decision. 

At the Supreme Court, Eastern Associated points to Transportation 
Department regulations requiring holders of commercial driver's 
licenses to submit to drug and alcohol testing. 

``It makes a mockery of (the anti-drug policy) to require the 
employer -- and the public -- to shoulder the risk that Smith's third 
strike might be discovered by sifting through the rubble of an 
accident involving Smith's 55,000-pound truck,'' the company argued 
in its appeal. 

The DOT rules don't require companies to fire workers who test 
positive. That's an important distinction, according to Smith's local 
chapter of the United Mine Workers of America. 

The union said the lower courts gave proper deference to the 
arbitrator's decision. 

``This court has instructed that as long as an arbitration award 
`draws its essence from a collective bargaining agreement,' a 
reviewing court must enforce the ruling,'' the union argued, citing a 
1960 Supreme Court case. 

The case is Eastern Associated Coal v. United Mine Workers, 99-1038. 

------------------------------------------------------------------------
Sandy Perle					Tel:(714) 545-0100 / (800) 548-5100   				    	
Director, Technical				Extension 2306 				     	
ICN Worldwide Dosimetry Division		Fax:(714) 668-3149 	                   		    
ICN Biomedicals, Inc.				E-Mail: sandyfl@earthlink.net 				                           
ICN Plaza, 3300 Hyland Avenue  		E-Mail: sperle@icnpharm.com          	          
Costa Mesa, CA 92626                                      

Personal Website:  http://www.geocities.com/capecanaveral/1205
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