No. 99-1038 

In the Supreme Court of the United States 

EASTERN ASSOCIATED COAL CORPORATION, 
PETITIONER 

v. 

UNITED MINE WORKERS OF AMERICA, DISTRICT 17, 
ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING AFFIRMANCE 

NANCY E. MCFADDEN 

General Counsel 

PAUL M. GEIER 

Assistant General Counsel 

PETER J. PLOCKI 

Senior Attorney 
Department of 

Transportation 
Washington, D.C. 20590 
SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

WILLIAM KANTER 
MARK W. PENNAK 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Whether the arbitrator’s award in this case, which 
ordered reinstatement (after a three-month suspension) 
of a commercial truck driver who had twice tested 
positive for marijuana, should be set aside as contrary 
to public policy. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
9 

Argument ........................................................................................ 11 

A. So long as Smith complies with the Department 

of Transportation’s rehabilitation requirements, 

his reinstatement to a safety-sensitive position is 

consistent with “public policy” as reflected in 

the Department’s regulations ........................................ 

13 

B. The courts below correctly declined to exercise 

de novo review over the arbitrator’s decision ............. 

24 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Alexander v. Gardner-Denver Co., 415 U.S. 36 

(1974) ........................................................................................ 29 

United Paperworkers Int’l Union v. Misco, 484 U.S. 

29 (1987) .................................................................. 

12, 25, 26, 27 

United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56 

(1981) ........................................................................................ 28 

United Steelworkers of America v. American Mfg. 

Co., 363 U.S. 564 (1960) ................................................... 

24, 29 

United Steelworkers of America v. Enterprise 

Wheel & Car Corp., 363 U.S. 593 (1960) .......... 

24, 25, 27, 28 

United Steelworkers of America v. Warrior & Gulf 

Navigation Co., 363 U.S. 574 (1960) ................. 

24, 25, 26, 29 

Statutes and regulations: 

Omnibus Transportation Employee Testing Act of 

1991, Pub. L. No. 102-143, Tit. V, 105 Stat. 952 ............... 

2 

§ 2(3), 105 Stat. 953 ......................................................... 

2, 14 

§ 2(4), 105 Stat. 953 ......................................................... 

2, 14 

§ 2(5), 105 Stat. 953 ........................................................... 2 

(III) 

IV 

Statutes and regulations—Continued: 
Page 

§ 2(7), 105 Stat. 953 ......................................................... 

2, 14 

Labor-Management Relations Act of 1947, 29 U.S.C. 

141 et seq.: 

29 U.S.C. 171(a) ......................................................... 

6, 15, 20 

29 U.S.C. 173(d) ............................................................... 

6, 29 

49 U.S.C. 31306(b)(1)(A) (1994 & Supp. III 1997) ............... 

2 

49 U.S.C. 31306(e) ................................................................... 

3, 14 

49 U.S.C. 31306(f ) ................................................................... 

3, 19 

49 U.S.C. 31310(b)(1)(A) ........................................................ 

3, 19 

49 U.S.C. 45103(c)(1) ................................................................ 

19 

49 U.S.C. 45103(c)(2) ................................................................ 

19 

49 C.F.R.: 

Pt. 382 ...................................................................................... 

4 

Section 382.213(a) ........................................................... 14 

Section 382.215 ................................................................ 14 

Section 382.501 ............................................................ 

15, 17 

Section 382.501(a) ........................................................... 
3 

Section 382.501(b) ........................................................... 

3 

Section 382.503 ................................................................ 17 

Section 382.507 .............................................................. 

3, 17 

Sections 382.601-382.605 ................................................. 
3 

Section 382.605 ....................................... 
4, 5, 10, 17, 18, 20 

Section 382.605(b) ......................................................... 

4, 15 

Section 382.605(c)(1) ............................................ 

4, 15, 16 

Section 382.605(c)(2) ....................................................... 
4 

Section 382.605(c)(2)(i) ................................................. 
4, 15 

Section 382.605(c)(2)(ii) ......................................... 
4, 15, 16 

Section 382.605(d) ........................................................... 

4 

Pt. 383: 

Section 383.5 .................................................................... 21 

Section 383.51 .................................................................. 

5 

Section 383.51(b)(2)(i)-(ii) .............................................. 

3, 5 

Section 383.51(b)(2)(v) ................................................... 

5 

Section 383.51(b)(3)(i) .................................................... 

3 

Section 383.51(c) ............................................................. 

5 

Section 383.51(c)(2)(i) ..................................................... 21 

V 

Miscellaneous: Page 

57 Fed. Reg. (1992): 

p. 59,585 (proposed 49 C.F.R. 382.1107(a)(2)(i)) .......... 

5, 21 

pp. 59,393-59,394 .................................................................... 
14 

p. 59,396 ................................................................................. 
14 

59 Fed. Reg. (1994): 

p. 7493 .................................................................................... 

5, 21 

p. 7502 ............................................................................ 
6, 15, 20 

p. 7503 .................................................................................... 5, 15 

In the Supreme Court of the United States 

No. 99-1038 

EASTERN ASSOCIATED COAL CORPORATION, 
PETITIONER 

v. 

UNITED MINE WORKERS OF AMERICA, DISTRICT 17, 
ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING AFFIRMANCE 

INTEREST OF THE UNITED STATES 

This case presents the question whether a federal 
court should set aside, as contrary to public policy, a 
labor arbitrator’s decision ordering reinstatement 
(after a three-month suspension) of a commercial truck 
driver who had twice tested positive for marijuana. 
Congress directed the United States Department of 
Transportation to promulgate regulations governing 
the use of alcohol and illegal drugs by persons employed 
in the transportation industry, including commercial 
truck drivers. The regulations promulgated pursuant 
to that statutory directive address, inter alia, the cate- 
gories of persons subject to alcohol and drug testing, 
the manner in which those tests will be conducted, and 
the consequences that follow from a failed test. The 
United States has a substantial interest in ensuring 

(1) 

2 

that judicial review of arbitral awards under collective 
bargaining agreements does not undermine either 
DOT’s regulations, or the federal labor policy favoring 
arbitration as the method for finally resolving disputes 
under collective bargaining agreements. 

STATEMENT 

1. In the Omnibus Transportation Employee Testing 
Act of 1991 (Testing Act), Pub. L. No. 102-143, Tit. V, 
105 Stat. 952, Congress addressed the threat to public 
safety posed by drug and alcohol abuse on the part of 
individuals employed in the transportation industry. 
The Testing Act contains congressional findings that, 
inter alia, “the greatest efforts must be expended to 
eliminate the abuse of alcohol and use of illegal drugs, 
whether on duty or off duty, by those individuals who 
are involved in the operation of aircraft, trains, trucks, 
and buses”; “the use of alcohol and illegal drugs has 
been demonstrated to affect significantly the perform- 
ance of individuals, and has been proven to have been a 
critical factor in transportation accidents”; “the most 
effective deterrent to abuse of alcohol and use of illegal 
drugs is increased testing, including random testing”; 
and “rehabilitation is a critical component of any testing 
program for abuse of alcohol or use of illegal drugs, and 
should be made available to individuals, as appropri- 
ate.” Testing Act § 2(3), (4), (5) and (7), 105 Stat. 953. 
The Testing Act in its current form states that “[i]n 
the interest of commercial motor vehicle safety, the 
Secretary of Transportation shall prescribe regulations 

* * * that establish a program requiring motor 
carriers to conduct preemployment, reasonable suspi- 
cion, random, and post-accident testing of operators of 
commercial motor vehicles for the use of alcohol or a 
controlled substance.” 49 U.S.C. 31306(b)(1)(A) (1994 & 
Supp. III 1997). The Testing Act further provides that 

3 

the Secretary “shall prescribe regulations establishing 
requirements for rehabilitation programs that provide 
for the identification and opportunity for treatment of 
operators of commercial motor vehicles who are found 
to have used alcohol or a controlled substance in vio- 
lation of law or a Government regulation.” 49 U.S.C. 
31306(e). The Act states in addition that the Secretary 
“shall decide on appropriate sanctions for a commercial 
motor vehicle operator who is found, based on tests 
conducted and confirmed under this section, to have 
used alcohol or a controlled substance in violation of law 
or a Government regulation but who is not under the 
influence of alcohol or a controlled substance as pro- 
vided in this chapter.” 49 U.S.C. 31306(f ).1 

2. In response to, inter alia, the statutory directives 
described above, the Department of Transportation 
(DOT) has promulgated detailed regulations that re- 
quire drug testing of a wide range of employees in the 
transportation industry. With respect to commercial 
drivers, the regulations state that “[e]xcept as provided 
in subpart F of this part [49 C.F.R. 382.601-382.605], no 
driver shall perform safety-sensitive functions, includ- 
ing driving a commercial motor vehicle, if the driver has 
engaged in” prohibited drug use. 49 C.F.R. 382.501(a); 
see also 49 C.F.R. 382.501(b) (“No employer shall per- 
mit any driver to perform safety-sensitive functions, 
including driving a commercial motor vehicle, if the 
employer has determined that the driver has violated 
this section.”); 49 C.F.R. 382.507 (“Any employer or 
driver who violates the requirements of this part shall 

1 Federal law mandates disqualification from commercial driv- 
ing for at least one year of any person who is convicted of operat- 
ing a commercial motor vehicle while under the influence of alcohol 
or a controlled substance. 49 U.S.C. 31310(b)(1)(A); 49 C.F.R. 
383.51(b)(2)(i)-(ii) and (3)(i). 

4 

be subject to the penalty provisions of 49 U.S.C. section 
521(b).”). Thus, if an employee tests positive for con- 
trolled substances, both the employer and the employee 
are subject to penalties if the employee thereafter per- 
forms a safety-sensitive function without first comply- 
ing with the requirements of Subpart F of 49 C.F.R. 
Part 382. 

In Subpart F, and Section 382.605 in particular, DOT 
established rehabilitation requirements that must be 
satisfied before an employee who has tested positive for 
a controlled substance may return to a safety-sensitive 
position. First, the driver “shall be evaluated by a sub- 
stance abuse professional [SAP] who shall determine 
what assistance, if any, the employee needs in resolving 
problems associated with * * * controlled substances 
use.” 49 C.F.R. 382.605(b).2 Second, “[b]efore a driver 
returns to duty requiring the performance of a safety- 
sensitive function after engaging in conduct prohibited 
by subpart B of this part, the driver shall undergo a 
return-to-duty * * * controlled substances test with a 
verified negative result.” 49 C.F.R. 382.605(c)(1). 
Finally, if the driver has been “identified [by the SAP] 
as needing assistance in resolving problems associated 
with * * * controlled substances use,” 49 C.F.R. 
382.605(c)(2), the SAP must determine that the driver 
has followed the prescribed rehabilitation program, 49 
C.F.R. 382.605(c)(2)(i), and the driver must be subject 
to at least six unannounced drug tests during the 12 
months following his return to duty, 49 C.F.R. 
382.605(c)(2)(ii). 

2 The regulations provide that “[t]he choice of substance abuse 
professional and assignment of costs shall be made in accordance 
with employer/driver agreements and employer policies.” 49 
C.F.R. 382.605(d). 

5 

The DOT regulations do not establish any additional 
prerequisites to reinstatement for a driver who fails a 
drug or alcohol test on two or more occasions. A pro- 
posed rule issued by DOT for comment in December 
1992 included a provision stating that “[a] driver who, 
during any 3-year period, is found to have a verified 
positive controlled substances test result twice in 
separate incidents, is prohibited from driving any com- 
mercial motor vehicle * * * for a period of 60 
consecutive days.” 57 Fed. Reg. 59,585 (1992) (pro- 
posed 49 C.F.R. 382.1107(a)(2)(i)). After considering 
public comments on the proposed regulations, however, 
the agency declined to adopt that disqualification rule. 
59 Fed. Reg. 7493 (1994). The agency made clear that 
“[t]he only driving prohibition period for a controlled 
substances violation is similar to that for alcohol–- 
completion of rehabilitation requirements and a return- 
to-duty test with a negative result.” Ibid.3 

So long as a commercial driver satisfies the reha- 
bilitation requirements of 49 C.F.R. 382.605, he is eligi- 
ble under the regulations to perform safety-sensitive 
duties. See 59 Fed. Reg. at 7493; id. at 7503. The 
preamble to the regulations makes clear, however, that 
“[c]ompliance with the prescribed treatment and pass- 
ing the test(s) will not guarantee a right of reemploy- 
ment.” Ibid. Consistent with the DOT regulations, an 
employer may decline to offer rehabilitation to an 

3 DOT regulations require disqualification, for specified 
periods, of individuals convicted of certain offenses. See 49 C.F.R. 
383.51. Those include operating a commercial motor vehicle while 
under the influence of alcohol or controlled substances, see 49 
C.F.R. 383.51(b)(2)(i)-(ii); use of a commercial motor vehicle in the 
commission of a drug felony, see 49 C.F.R. 383.51(b)(2)(v); and the 
commission of two or more serious traffic violations within a three- 
year period while operating a commercial motor vehicle, see 49 
C.F.R. 383.51(c). 

6 

employee who tests positive and may instead discharge 
every such worker. The 1994 preamble “encourage[s] 
those employers who can afford to provide 
rehabilitation to do so through established health insur- 
ance programs, since it helps their drivers, benefits 
morale, is often cost-effective and ultimately contrib- 
utes to the success of both their business and their 
testing programs.” Id. at 7502. The agency has ex- 
pressly declined, however, “to mandate employer-pro- 
vided rehabilitation,” deciding instead that the matter 
“should be left to management/driver negotiation.” 
Ibid. 

3. The Labor-Management Relations Act of 1947 
(LMRA) states the national policy that “sound and 
stable industrial peace and the advancement of the 
general welfare, health, and safety of the Nation and of 
the best interests of employers and employees can most 
satisfactorily be secured by the settlement of issues 
between employers and employees through the pro- 
cesses of conference and collective bargaining between 
employers and the representatives of their employees.” 
29 U.S.C. 171(a). The LMRA further states that 
“[f ]inal adjustment by a method agreed upon by the 
parties is declared to be the desirable method for 
settlement of grievance disputes arising over the 
application or interpretation of an existing collective- 
bargaining agreement.” 29 U.S.C. 173(d). 

4. James Smith, a drilling operator for petitioner 
Eastern Associated Coal Corporation, applied for a 
position as a Mobile Equipment Operator. Because the 
new position required a commercial driver’s license, 
Smith was subject to alcohol and drug testing under the 
DOT regulations. In March 1996 Smith tested positive 
for marijuana. Petitioner sought to discharge him, but 
Smith grieved his discharge and the arbitrator ordered 
him reinstated, subject to a suspension of 30 days 

7 

without pay and the requirement that he participate in 
a substance abuse program. Smith passed four drug 
tests between April 1996 and January 1997, but in June 
1997 he again tested positive for marijuana. On July 14, 
1997, petitioner suspended Smith with the intent to 
discharge him. Smith and his union (the respondent in 
this case) contested the discharge. Pet. App. 6a-8a, 24a- 
26a. 

The arbitrator in the second proceeding stated that 
“[w]hile [Smith] has been a very good employee during 
his 17 years with the company, it is obvious he has not 
been rehabilitated by the opportunity provided by the 
company’s employee assistance program or the earlier 
arbitration.” Pet. App. 26a. The arbitrator stated as 
well that “drugs have a negative impact on job per- 
formance, safety and company liability.” Id. at 28a. 

The arbitrator nevertheless ordered Smith rein- 
stated, subject to various conditions. He explained: 

[Smith] made a very personal appeal under oath to 
the arbitrator concerning a personal/family problem 
which caused this one time lapse in drug usage. The 
arbitrator found this testimony creditable. If the 
arbitrator was misled by [Smith], the arbitrator is 
confident that [Smith] will make another misstep 
with drug use and be caught. The remedy provided 
here will assure that the company and union will not 
be required to use arbitration again for [Smith] 
where drugs are involved. 

Pet. App. 28a. Smith’s reinstatement was made subject 
to the conditions that (1) he would not be paid for the 
period of his suspension, which would last until October 
20, 1997;4 (2) the prior arbitral award would be 

4 The date of the arbitrator’s decision was August 1, 1997. Pet. 
App. 29a. Because Smith was suspended by petitioner on July 14, 

8 

“reinstated”; (3) Smith would reimburse the company 
and the union for the arbitrators’ bills in both arbitral 
proceedings; (4) Smith would provide a signed, undated 
letter of resignation that petitioner may accept if Smith 
fails a drug test during the next five years; and (5) 
Smith would be subject to random drug testing during 
the period of his suspension, and petitioner could accept 
his resignation if he refused to take a drug test. Id. at 
29a. 

5. Petitioner filed suit in federal district court seek- 
ing vacatur of the arbitrator’s award. The district court 
granted respondent’s motion for summary judgment. 
Pet. App. 5a-21a. The court found that the arbitrator’s 
award was “rationally inferable” from the applicable 
collective bargaining agreement. Id. at 16a. The court 
also rejected petitioner’s contention that the award 
should be vacated as contrary to public policy. Id. at 
17a-21a. The district court acknowledged that “[t]here 
is a plenitude of positive law to support the existence of 
a well defined and dominant public policy against the 
performance of safety sensitive jobs by employees 
under the influence of drugs.” Id. at 18a. It held, how- 
ever, that the award in this case did not violate that 
public policy. The court explained: 

[Petitioner] argues that the public policy embodied 
in the DOT Regulations is sufficiently well defined 
and dominant to support vacation of Arbitrator 
Barrett’s award. There is no question that the DOT 
Regulations relied upon by [petitioner] articulate a 
well defined and dominant public policy against drug 
use by persons employed as commercial motor 
vehicle drivers. Nevertheless, the DOT Regulations 

1997 (id. at 24a), the effect of the arbitrator’s decision was that 
Smith was suspended without pay for slightly more than three 
months. 

9 

do not express an explicit, well defined public policy 
permanently enjoining the employment of commer- 
cial motor vehicle drivers who test positive for drug 
use. Specifically, the DOT Regulations do not re- 
quire that employees who test positive for drug use 
be automatically discharged. Here, the arbitrator 
ordered reinstatement of Mr. Smith, subject, how- 
ever, to several conditions, including continued ran- 
dom drug testing and mandatory resignation in the 
event of a future positive drug test. Because the 
DOT Regulations do not make it illegal to reinstate 
employees who test positive for drug use, it cannot 
be said that the DOT Regulations “specifically mili- 
tate against the relief ordered by the arbitrator” in 
this case. Consequently, the public policy exception 
does not apply inasmuch as the arbitrator’s award is 
consistent with the DOT Regulations. 

Id. at 20a-21a (citation and footnote omitted). 

6. The court of appeals affirmed. Pet. App. 1a-4a. 
The court simply recounted the facts and the proce- 
dural history of the case and stated that it “affirm[ed] 
on the reasoning of the district court.” Id. at 4a. 

SUMMARY OF ARGUMENT 

1. Pursuant to statutory authority, the Department 
of Transportation (DOT) has promulgated regulations 
addressing the dangers posed by employee drug use 
within the transportation industry. Those regulations 
mandate drug testing of employees who perform 
safety-sensitive functions, and they establish prerequi- 
sites to the reinstatement of employees who test posi- 
tive. A worker who tests positive must be immediately 
removed from safety-sensitive duties and may not 
resume such duties until he has been evaluated by a 
substance abuse professional (SAP), has successfully 
completed any program of rehabilitation that the SAP 

10 

prescribes, and has passed a return-to-duty drug test. 
DOT has made clear that employers are free to impose 
additional sanctions (including outright discharge) on 
employees who test positive, subject to any indepen- 
dent constraints on management discretion that the 
employer has voluntarily assumed. 

In our view, the arbitrator’s reinstatement order in 
this case is most plausibly construed to be contingent 
upon Smith’s compliance with the pertinent DOT regu- 
lations—and, in particular, on his successful completion 
of any rehabilitation program that the SAP prescribes. 
So construed, the award is fully consistent with federal 
policy and should not be set aside by a federal court. If 
an employee satisfies the prerequisites to reinstate- 
ment established by the responsible executive agency, 
a federal court cannot properly refuse enforcement of 
an arbitrator’s reinstatement order based on the court’s 
belief that the conditions set forth in the regulations are 
insufficient to protect the public safety. 

The fact that Smith failed two drug tests within a 16- 
month period does not significantly alter the analysis. 
Under a proposed regulatory provision put forth for 
public comment in December 1992, any driver who 
failed two drug tests within a three-year period would 
have been prohibited from operating a commercial 
motor vehicle for a period of 60 days. Even if that 
proposed rule had been adopted, the arbitral award in 
the instant case would be valid, since under the 
arbitrator’s decision Smith was suspended for slightly 
more than three months. After considering public com- 
ments, DOT declined to mandate any specific period of 
disqualification even for recidivist drug users, conclud- 
ing instead to entrust decisions regarding repeat 
offenders to private ordering and the sound judgment 
of arbitrators, subject to the rehabilitation require- 
ments set forth in 49 C.F.R. 382.605. Smith’s status as 

11 

a recidivist is surely relevant in determining the appro- 
priate response to his positive drug test. But the text 
and history of the pertinent DOT regulations are 
inconsistent with any contention that discharge is the 
only permissible sanction for a recidivist drug offender. 

2. The courts below correctly deferred to the arbi- 
trator’s judgment rather than attempting a de novo de- 
termination of the appropriate sanction for Smith’s mis- 
conduct. The arbitrator’s specialized training and 
repeated exposure to workplace disputes gives him a 
significant advantage (as compared to a federal judge) 
in resolving the pertinent remedial issues, notwith- 
standing the fact that the consequences of the arbitra- 
tor’s decision may be felt beyond the employer’s place 
of business. That is particularly so in light of the arbi- 
trator’s ability to see and hear the witnesses firsthand. 
A deferential standard also helps to ensure that the ar- 
bitrator’s decision will be treated when issued as essen- 
tially final, thereby allowing the parties to put the con- 
troversy behind them. Finally, enforcing the parties’ 
agreement to entrust workplace disputes to the arbi- 
trator serves the national interest in industrial peace, 
since the employer’s agreement to arbitrate has histori- 
cally served as the quid pro quo for the union’s promise 
not to strike. 

ARGUMENT 

The arbitrator’s decision in this case rests on three 
subsidiary propositions. First, the arbitrator construed 
the collective bargaining agreement as authorizing but 
not mandating discharge as a sanction for employee 
drug use. Second, the arbitrator construed his own re- 
medial powers expansively. While framing the question 
before him as whether the company had established 
“just cause” for Smith’s discharge, Pet. App. 24a, the 
arbitrator evidently (though implicitly) understood his 

12 

task to be that of determining, not whether discharge 
was a permissible sanction under the terms of the 
agreement, but whether discharge was the fairest or 
most appropriate sanction under all the facts and 
circumstances. In essence, the arbitrator understood 
the agreement as delegating to him the sort of discreti- 
onary authority that would otherwise be exercised by 
company management. Third, the arbitrator consid- 
ered all the relevant facts and concluded that a three- 
month suspension without pay, subject to various 
conditions, was a more appropriate punishment than 
outright discharge. 

At least in this Court, petitioner does not assert that 
any of those arbitral rulings is wrong as a matter of 
contract interpretation. Petitioner does not, that is, 
contend that the collective bargaining agreement either 
(1) mandates the discharge of every covered employee 
who is found to have used marijuana, (2) gives manage- 
ment unreviewable discretion to determine the appro- 
priate sanction for an individual who tests positive, or 
(3) precludes reinstatement under the facts and circum- 
stances of this case. Rather, petitioner’s argument is 
that the arbitral award should be vacated as contrary to 
public policy even assuming that the award is faithful to 
the intent of the contracting parties. 

For the reasons that follow, that argument lacks 
merit. This Court has emphasized that judicial author- 
ity to vacate an arbitral award as contrary to public 
policy “is limited to situations where the contract as 
interpreted [by the arbitrator] would violate some 
explicit public policy that is well defined and dominant, 
and is to be ascertained by reference to the laws and 
legal precedents and not from general considerations of 
supposed public interests.” United Paperworkers Int’l 
Union v. Misco, 484 U.S. 29, 43 (1987) (internal quota- 
tion marks omitted). The Department of Transporta- 

13 

tion (DOT) has promulgated detailed regulations that, 
inter alia, define the prerequisites that a commercial 
driver must satisfy in order to resume safety-sensitive 
duties after testing positive for illegal drugs. So long as 
those requirements are satisfied, DOT’s regulations 
leave with the employer the ultimate decision whether 
the employee should be reinstated, subject to any con- 
straints on management discretion (e.g., an agreement 
to arbitrate) that the employer has voluntarily as- 
sumed. That regulatory scheme defines (at least 
insofar as the federal government is concerned) the 
relevant “public policy” in this area. If a driver satisfies 
the regulatory preconditions to reinstatement, and the 
decisionmaker chosen by the parties concludes that 
reinstatement is appropriate, we see no basis on which 
a federal court may direct a different outcome. 

A. So Long As Smith Complies With The Department Of 

Transportation’s Rehabilitation Requirements, His 

Reinstatement To A Safety-Sensitive Position Is Con- 
sistent With “Public Policy” As Reflected In The 

Department’s Regulations 

1. As we explain above (see pp. 2-3, supra), Con- 
gress has vested the Department of Transportation 
(DOT) with broad authority to promulgate rules ad- 
dressing the dangers posed by employee drug use 
within the transportation industry. In devising appro- 
priate regulations, DOT sought to balance three impor- 
tant principles—each of which is firmly grounded in 
federal statutory law. First, the use of illegal drugs by 
workers in safety-sensitive positions poses a substantial 
threat to public safety.5 See Omnibus Transportation 

5 The DOT regulations make clear that individuals who cur- 
rently use illegal drugs or have measurable amounts of such drugs 
in their systems are ineligible to perform safety-sensitive func- 
tions, regardless of whether the drug use occurs on or off duty. 

14 

Employee Testing Act of 1991 (Testing Act), Pub. L. 
No. 102-143, Tit. V, § 2(3) and (4), 105 Stat. 953 (con- 
gressional findings); p. 2, supra. Second, treatment and 
rehabilitation of employees who use illegal drugs serves 
important public and private interests. See Testing Act 
§ 2(7), 105 Stat. 953 (congressional finding); 49 U.S.C. 
31306(e) (requiring DOT to “prescribe regulations 
establishing requirements for rehabilitation pro- 
grams”).6 Third, federal labor law reflects a preference 
for private resolution, through the collective bargaining 

See 49 C.F.R. 382.213(a) (“No driver shall report for duty or re- 
main on duty requiring the performance of safety-sensitive func- 
tions when the driver uses any controlled substance.”); 49 C.F.R. 
382.215 (“No driver shall report for duty, remain on duty or 
perform a safety-sensitive function, if the driver tests positive for 
controlled substances.”). That rule does not reflect a judgment 
that every individual who tests positive for illegal drugs is in fact 
impaired. DOT has recognized that “drugs may stay in the body 
for some time and the presence of drugs in urine does not necessar- 
ily mean that the person was affected by the drugs on the day 
tested or during the performance of safety-sensitive functions.” 57 
Fed. Reg. at 59,393-59,394. But precisely because urine testing 
cannot determine whether an individual is impaired at a particular 
time, any commercial driver who tests positive for illegal drugs 
must be regarded as a potential threat to public safety. See id. at 
59,396 (“It is not possible to determine, based on a chemical test, at 
what amount a particular drug impairs each user’s performance of 
particular functions and thus could have safety consequences, so 
the mere presence of the drug must be prohibited.”). 

6 Treatment and rehabilitation of such employees (as opposed 
to outright discharge) most obviously serves the individual’s own 
interest in resuming gainful employment and in avoiding the risk 
of future criminal prosecution that inherently attends the use of 
illegal drugs. In addition, however, rehabilitation and treatment 
serves the interests of the transportation industry and the national 
economy by allowing a worker’s specialized skills to be put to their 
most productive use. 

15 

process, of issues regarding workplace management. 
29 U.S.C. 171(a). 

The DOT regulations require testing of drivers in 
safety-sensitive positions in order to deter the use of 
illegal drugs and to detect those individuals who engage 
in drug use. The regulations require the immediate 
removal from performance of safety-sensitive duties of 
any individual who tests positive for illegal drugs. 49 
C.F.R. 382.501. Under the rules, the driver is eligible 
to resume safety-sensitive duties only after he has been 
evaluated by a substance abuse professional (SAP), 49 
C.F.R. 382.605(b); has passed a return-to-duty drug 
test, 49 C.F.R. 382.605(c)(1); and has successfully com- 
pleted any program of rehabilitation that the SAP 
prescribes, 49 C.F.R. 382.605(c)(2)(i).7 The rules do not, 
however, compel the employer to offer rehabilitation or 
to reinstate a driver who has complied with the regu- 
latory requirements. See 59 Fed. Reg. at 7502 (avail- 
ability of rehabilitation should not be mandated by rule 
but “should be left to management/driver negotiation”); 
id. at 7503 (“Compliance with the prescribed treatment 
and passing the test(s) will not guarantee a right of 
reemployment.”). In short, the regulations establish 
legal prerequisites to the resumption of safety-sensitive 
duties by drivers who have tested positive for illegal 
drugs, while leaving to private ordering the determina- 
tion whether such workers will in fact be reinstated. 

7 In addition, if the SAP has concluded that the employee needs 
assistance in resolving problems associated with drug use, the 
employee “[s]hall be subject to unannounced follow-up alcohol and 
controlled substances tests administered by the employer follow- 
ing the driver’s return to duty. The number and frequency of such 
follow-up testing shall be as directed by the [SAP], and consist of 
at least six tests in the first 12 months following the driver’s return 
to duty.” 49 C.F.R. 382.605(c)(2)(ii). 

16 

2. The arbitrator’s decision in this case does not by 
its terms require compliance with DOT’s rehabilitation 
regulations as a prerequisite to Smith’s resumption of 
safety-sensitive duties. The award orders that Smith 
be “returned to work on October 20, 1997,” Pet. App. 
29a, and it does not explicitly make that directive con- 
tingent on Smith’s evaluation by an SAP or his success- 
ful completion of any rehabilitation program that the 
SAP prescribes. The award states that “[d]uring 
[Smith’s] suspension period, [Smith’s] name shall 
remain in the company’s random drug testing pro- 
gram.” Ibid. It does not indicate, however, that Smith 
must pass a return-to-duty test, nor does it require 
periodic drug testing after the suspension is over, 
even though the former is an absolute prerequisite 
to resumption of safety-sensitive duties (49 C.F.R. 
382.605(c)(1)), and the latter is required for any 
employee identified by the SAP as needing assistance 
in resolving drug-related problems (49 C.F.R. 
382.605(c)(2)(ii)). 

If the arbitral award is construed as entitling Smith 
to resume safety-sensitive duties without completing 
DOT’s rehabilitation requirements, the award is (at 
least to that extent) invalid. The DOT regulations 
make clear that 

[n]o driver who has engaged in [illegal drug use] 
shall perform safety-sensitive functions, including 
driving a commercial motor vehicle, unless the 
driver has met the requirements of § 382.605. No 
employer shall permit a driver who has engaged in 
[illegal drug use] to perform safety-sensitive func- 
tions, including driving a commercial motor vehicle, 
unless the driver has met the requirements of 
§ 382.605. 

17 

49 C.F.R. 382.503. An employer and union may agree 
to additional restrictions on the performance of safety- 
sensitive functions by workers who have tested posi- 
tive, but they may not waive the minimum prerequi- 
sites to reinstatement that the regulations impose. 
Obligations imposed by law cannot be superseded by 
private contract. Thus, even if petitioner had never 
sought vacatur of the arbitral award, Smith could not 
lawfully resume his duties as a commercial driver with- 
out first satisfying the requirements of 49 C.F.R. 
382.605. 

3. Although the arbitrator’s decision does not in 
terms mandate compliance with the DOT rehabilitation 
requirements, the award is capable of being imple- 
mented in a manner that is consistent with those rules. 
The award was issued on August 1, 1997, and ordered 
that Smith be “returned to work on October 20, 1997.” 
Pet. App. 29a. Depending on the SAP’s evaluation, any 
required rehabilitation program might feasibly have 
been completed before the end of Smith’s suspension. 
If the rehabilitation program was still ongoing as of 
October 20, 1997, Smith could have been placed tempo- 
rarily in a job that did not require the performance of 
safety-sensitive functions. The arbitrator’s decision 
states that “[t]he company and union may agree that 
unusual or unforeseen circumstances justify waiving 
any conditions set forth above,” ibid., thus explicitly 
preserving the ability of the parties to make any 
necessary adjustments in the terms of the award.8 And 

8 Under the DOT regulations, the employee and employer are 
both subject to penalties if a commercial driver who has tested 
positive for illegal drugs resumes safety-sensitive duties without 
satisfying the agency’s rehabilitation requirements. See 49 C.F.R. 
382.501, 382.507. Thus, both the union and the employer have an 
obvious incentive to ensure that an ambiguous arbitral award is 
implemented in a manner consistent with governing law. 

18 

while the award does not itself require Smith to 
undergo either a back-to-duty test or any follow-up 
testing, it also does not purport to exempt him from any 
drug tests that are otherwise mandated by law. More- 
over, the arbitrator “reinstated” the award entered in 
the prior arbitral proceeding (see ibid.), and that earlier 
award required Smith to participate in a substance 
abuse program (see id. at 25a). 

Because the award is readily capable of being imple- 
mented in a manner consistent with the DOT regula- 
tions, and because petitioner has not contended that the 
award violates the rehabilitation requirements and we 
see no basis for assuming that the award is intended to 
contradict obligations imposed by law, we believe the 
arbitrator’s reinstatement order should be construed to 
be contingent upon Smith’s compliance with Section 
382.605, including successful completion of any reha- 
bilitation program prescribed by the SAP. So con- 
strued, the award is consistent with federal policy as 
set forth in the Testing Act and the DOT regulations. 
The decision of the court of appeals should therefore be 
affirmed. 

The thrust of petitioner’s argument is that rein- 
statement of a commercial driver who has used illegal 
drugs is logically inconsistent with the public policy 
against drug use by workers in safety-sensitive posi- 
tions, and with the DOT testing requirements designed 
to further that policy. Petitioner’s argument reflects an 
incomplete understanding of the agency’s regulatory 
scheme. The regulations are not silent regarding the 
consequences of a positive drug test. To the contrary, 
the rules describe in detail the conditions that an 
employee who tests positive must satisfy in order to be 
eligible to resume safety-sensitive duties, while leaving 
to private ordering the decision whether reinstatement 
is appropriate in a particular case. The regulatory 

19 

scheme fashioned by DOT—the federal agency assigned 
by Congress to implement the Testing Act—defines the 
relevant “public policy” in this area. If an employee 
satisfies the regulatory prerequisites to resumption of 
safety-sensitive duties, a federal court cannot properly 
refuse enforcement of an arbitrator’s reinstatement 
order based on the court’s belief that the conditions set 
forth in the rules are insufficient to protect the public 
safety.9 

As we explain above (see pp. 5-6, 15-16, supra), the 
DOT regulations do not require employers to make 
rehabilitation programs available, and they do not 
prevent an employer from discharging workers who 
test positive for illegal drugs. Petitioner suggests (Br. 
46-47) that if employers are permitted to impose sanc- 
tions for drug use above and beyond those mandated by 
the regulations, then federal courts must be free to do 
so as well. That is a non sequitur. DOT’s statement 

9 With respect to some categories of drug users within the 
transportation industry, Congress has itself mandated a specific 
period of disqualification from the performance of safety-sensitive 
duties. In the aviation industry, for example, Congress has im- 
posed a permanent disqualification from the performance of certain 
safety-sensitive jobs by persons who have used drugs while on 
duty, or who have again used drugs after beginning or completing 
a rehabilitation program. See 49 U.S.C. 45103(c)(1) and (2). A 
commercial driver who is convicted of driving a commercial motor 
vehicle while under the influence of drugs is subject to a manda- 
tory one-year disqualification. See 49 U.S.C. 31310(b)(1)(A). Con- 
gress has declined, however, to mandate a specific disqualification 
period for drivers in Smith’s position. Rather, Congress has 
directed the Secretary of Transportation to “decide on appropriate 
sanctions for a commercial motor vehicle operator who is found 

* * * to have used * * * a controlled substance in violation of 
law or a Government regulation but who is not under the influence 
of * * * a controlled substance as provided in this chapter.” 49 
U.S.C. 31306(f). 

20 

that the availability of rehabilitation “should be left to 
management/driver negotiation” (59 Fed. Reg. at 7502) 
is itself an expression of agency policy. Consistent with 
traditional principles of economic liberty and freedom of 
contract, and with the national policy of encouraging 
resolution of workplace management issues through the 
collective bargaining process, see 29 U.S.C. 171(a); p. 6, 
supra, DOT chose to entrust private parties with 
significant discretion to determine whether reinstate- 
ment is appropriate in particular cases. If Smith 
satisfies the regulatory prerequisites to reinstatement, 
and the decisionmaker chosen by the parties concludes 
that reinstatement (after a three-month suspension) is 
appropriate, enforcement of the arbitral award could 
not plausibly be deemed inconsistent with any policy 
judgment reflected in the DOT regulations. To the 
contrary, a judicial decree setting the award aside 
would be inconsistent both with the regulatory balance 
struck by DOT, and with the federal labor policy (see 
pp. 24-25, infra) favoring the resolution of contract 
disputes through arbitration. 

4. The fact that Smith failed two drug tests within a 
16-month period does not significantly alter the analy- 
sis. Employers are free under the regulations to adopt 
policies requiring discharge of workers who fail two (or 
any other number) of drug tests within a specified 
period of time. DOT has declined, however, to require 
discharge of recidivist drug users (or any sub-category 
of recidivist drug users), concluding instead to entrust 
decisions regarding repeat offenders to private 
ordering and the sound judgment of arbitrators, subject 
to the minimum prerequisites for resumption of safety- 
sensitive duties set forth in 49 C.F.R. 382.605. 
Contrary to petitioner’s contention (Br. 46), more- 
over, the history of the pertinent DOT rulemaking 
makes clear that the absence of any provision directed 

21 

specifically at recidivist drug users reflects a deliberate 
agency policy choice. A proposed regulation put forth 
for public comment in December 1992 included a pro- 
vision stating that “[a] driver who, during any 3-year 
period, is found to have a verified positive controlled 
substances test result twice in separate incidents, is 
prohibited from driving any commercial motor vehicle 

* * * for a period of 60 consecutive days.” 57 Fed. 
Reg. at 59,585 (proposed 49 C.F.R. 382.1107(a)(2)(i)). 
Even if that proposed rule had been adopted, the 
arbitral award in the instant case would be valid, since 
under the arbitrator’s decision Smith was suspended 
for slightly more than three months. After considering 
public comments on the proposed regulations, however, 
the agency declined to mandate any specific period of 
disqualification even for recidivist drug users. See 59 
Fed. Reg. at 7493. The agency made clear that “[t]he 
only driving prohibition period for a controlled sub- 
stances violation is similar to that for alcohol— 
completion of rehabilitation requirements and a return- 
to-duty test with a negative result.” Ibid. There is 
consequently no basis for petitioner’s suggestion (Br. 

46) that the absence of a provision specifically directed 
at recidivist drug users creates a regulatory gap that a 
court may fill under the rubric of enforcing “public 
policy.” 

10 

10 DOT has specifically addressed the issue of recidivist traffic 
offenders, and has mandated a 60-day period of disqualification for 
a commercial driver who is twice convicted, within a three-year 
period, of “serious traffic violations” committed during the opera- 
tion of a commercial vehicle. 49 C.F.R. 383.51(c)(2)(i). If Smith had 
incurred two reckless driving convictions (see 49 C.F.R. 383.5, 
defining “serious traffic violation” to include reckless driving), an 
arbitral award ordering him reinstated after a three-month sus- 
pension could not plausibly be challenged as violative of public 
policy (given the existence of a DOT regulation specifically ad- 

22 

Smith’s status as a recidivist is surely relevant in 
determining the appropriate response to his positive 
drug test. The fact that Smith has twice tested positive 
for marijuana may affect the SAP’s assessment of his 
prospects for rehabilitation or the nature of the reha- 
bilitation program that the SAP prescribes. Under the 
arbitrator’s decision, moreover, Smith was subjected to 
a significantly longer suspension after his second posi- 
tive drug test than after his first, and to additional 
sanctions (e.g., the requirement that he pay the costs of 
both arbitral proceedings) as well. And nothing in 
DOT’s regulations would prevent petitioner from 
insisting, in negotiations with the union, on a contract 
provision permitting it to discharge every commercial 
driver who failed two drug tests within a specified 
period of time. The text and history of the pertinent 
DOT regulations, however, are inconsistent with any 
contention that discharge is the only legally permissible 
sanction for recidivist drug offenders. 

Finally, we do not agree with petitioner’s contention 
(Br. 43) that “reinstating Smith would make a mockery 
of the drug testing regime mandated by Congress and 
the DOT regulations.” The DOT regulations expressly 

dressing the treatment of recidivist traffic offenders and prescrib- 
ing a minimum disqualification period of 60 days). Petitioner’s 
argument thus depends on the proposition that a commercial 
driver who twice tests positive for marijuana, but has not been 
shown to have driven while impaired or otherwise to have oper- 
ated his vehicle in an improper manner, poses a greater threat to 
public safety than does an employee who has twice been convicted 
of reckless driving. Reasonable people may surely hold that view, 
but it is difficult to see how that comparative judgment can be 
regarded (particularly in the existing statutory and regulatory 
context) as the province of a federal court. And it is still more 
difficult to see how such a “public policy” can be inferred from 
DOT’s considered refusal to specify a mandatory period of dis- 
qualification for recidivist drug users. 

23 

contemplate the prospect that drivers who test positive 
will (after completion of specified requirements) 
eventually be permitted to resume safety-sensitive 
duties. The regulations and accompanying preamble 
also reflect the view that the decision whether rein- 
statement is advisable in a particular case is appropri- 
ately left to private ordering. It is therefore difficult to 
see how reinstatement in accordance with the regu- 
latory requirements, when decreed by the parties’ 
chosen decisionmaker, could make a “mockery” of the 
agency’s rules. 

In our view, drug testing of commercial drivers 
serves important remedial and deterrent purposes even 
if a positive test (or a second positive test) does not 
invariably result in discharge of the offending em- 
ployee. Drug testing identifies those workers who may 
be in need of treatment and rehabilitation, and it 
ensures that such workers do not resume safety- 
sensitive duties until they have been evaluated by an 
SAP and have successfully completed any rehabilitation 
program that the SAP prescribes. Drug testing also 
provides employers with relevant information and thus 
enables them to take whatever additional steps they 
deem appropriate, subject to any constraints on man- 
agement discretion that the employer has voluntarily 
assumed. In addition, disciplinary measures imposed as 
a result of a positive drug test may have a substantial 
deterrent effect on other workers even if the penalty 
falls short of outright discharge. Reasonable people 
may disagree as to whether Smith deserved a more 
severe punishment than the arbitrator in this case 
imposed. But the three-month suspension without pay 
of a commercial truck driver cannot accurately be 
characterized as “condonation” (Pet. Br. 41) of the 
employee’s conduct. 

24 

B. The Courts Below Correctly Declined To Exercise De 

Novo Review Over The Arbitrator’s Decision 

Petitioner also contends that, even if the choice of an 
appropriate punishment for a second positive drug test 
requires consideration of all the facts and circumstances 
(rather than the application of a per se rule of dis- 
charge), the courts below ought to have exercised de 
novo review over the arbitrator’s decision. Petitioner 
argues (Br. 24, 27) that judicial deference to the arbitra- 
tor’s judgment is inappropriate when the arbitrator’s 
decision potentially affects persons outside the work- 
place. That argument lacks merit and would, if ac- 
cepted, substantially disrupt the implementation of the 
federal labor laws. 

1. In the so-called “Steelworkers trilogy”—i.e., 
United Steelworkers of America v. American Manu- 
facturing Co., 363 U.S. 564 (1960); United Steelworkers 
of America v. Warrior & Gulf Navigation Co., 363 U.S. 
574 (1960); and United Steelworkers of America v. 
Enterprise Wheel & Car Corp., 363 U.S. 593 (1960)— 
this Court emphasized the broad deference that courts 
owe to the decisions of labor arbitrators acting under 
collective bargaining agreements. The Court observed 
that the employer’s agreement to arbitrate personnel 
disputes is frequently the quid pro quo for the union’s 
agreement not to strike. See American Mfg., 363 U.S. 
at 567; Warrior & Gulf, 363 U.S. at 578. The Court also 
explained that 

the grievance machinery under a collective bargain- 
ing agreement is at the very heart of the system of 
industrial self-government. Arbitration is the 
means of solving the unforeseeable by molding a 
system of private law for all the problems which 
may arise and to provide for their solution in a way 
which will generally accord with the variant needs 

25 

and desires of the parties. The processing of dis- 
putes through the grievance machinery is actually a 
vehicle by which meaning and content are given to 
the collective bargaining agreement. 

Warrior & Gulf, 363 U.S. at 581. 

Finally, the Court emphasized that “[w]hen an arbi- 
trator is commissioned to interpret and apply the 
collective bargaining agreement, he is to bring his 
informed judgment to bear in order to reach a fair 
solution of a problem. This is especially true when it 
comes to formulating remedies. There the need is for 
flexibility in meeting a wide variety of situations.” 
Enterprise Wheel, 363 U.S. at 597. The Court explained 
that 

plenary review by a court of the merits [of the 
arbitrator’s construction of the contract] would 
make meaningless the provisions that the arbitra- 
tor’s decision is final, for in reality it would almost 
never be final. * * * [T]he question of interpre- 
tation of the collective bargaining agreement is a 
question for the arbitrator. It is the arbitrator’s 
construction which was bargained for; and so far as 
the arbitrator’s decision concerns construction of the 
contract, the courts have no business overruling him 
because their interpretation of the contract is 
different from his. 

Id. at 599. 

11 

11 The Court reaffirmed those principles in Misco. The Court 
observed that “the federal statutes regulating labor-management 
relations * * * reflect a decided preference for private settlement 
of labor disputes without the intervention of government.” 484 
U.S. at 37. It explained that “[b]ecause the parties have con- 
tracted to have disputes settled by an arbitrator chosen by them 
rather than by a judge, it is the arbitrator’s view of the facts and of 
the meaning of the contract that they have agreed to accept.” Id. 

26 

2. Determining the appropriate sanction in cases in- 
volving employee drug use requires the decisionmaker 
to assess the employee’s prospects for rehabilitation in 
light of his overall work record and the circumstances 
of his positive drug test(s). It also requires an under- 
standing of the “typical” punishment for comparable 
offenses (in a particular shop and/or in a broader geo- 
graphic area), as well as an appreciation of other work- 
ers’ likely reactions to a particular sanction. Thus, 
while the arbitrator’s authority is drawn from the 
agreement of the parties, his powers under the agree- 
ment typically extend beyond contract “interpretation” 
narrowly conceived. See Warrior & Gulf, 363 U.S. at 
582 (“The parties expect that [the arbitrator’s] judg- 
ment of a particular grievance will reflect not only what 
the contract says but, insofar as the collective 
bargaining agreement permits, such factors as the 
effect upon productivity of a particular result, its 
consequence to the morale of the shop, his judgment 
whether tensions will be heightened or diminished.”). 
The arbitrator’s specialized training and repeated 
exposure to workplace disputes gives him a significant 
advantage (as compared to a federal judge) in resolving 
those issues, notwithstanding the fact that the 
consequences of the arbitrator’s decision may be felt 
beyond the employer’s place of business (as would be 
true for many types of employees, such as utility 

at 37-38. The Court noted as well that “where it is contemplated 
that the arbitrator will determine remedies for contract violations 
that he finds, courts have no authority to disagree with his honest 
judgment in that respect. If the courts were free to intervene on 
these grounds, the speedy resolution of grievances by private 
mechanisms would be greatly undermined.” Id. at 38. 

27 

workers, health care workers, food handlers, makers of 
many manufactured products, etc.). 

12 

3. The arbitrator in this case placed substantial 
weight on his own observation of Smith’s testimony. 
See Pet. App. 28a. In practically any context where the 
credibility of witnesses matters, reviewing courts give 
deference to the decisionmaker who has seen and heard 
the testimony firsthand. Under petitioner’s theory, the 
district court in this case should have either made its 
own credibility determination based on a cold record, or 
conducted a new evidentiary hearing in order to assess 
Smith’s credibility for itself. Neither alternative seems 
workable. Moreover, both variants appear inconsistent 
with this Court’s statement in Misco that “[h]ad the 
arbitrator found that Cooper had possessed drugs on 
the property, yet imposed discipline short of discharge 

12 Petitioner contends (Br. 40, 42) that the arbitral award is 
called into question by the arbitrator’s failure to make an express 
finding that Smith is unlikely to use drugs in the future. The 
arbitrator stated, however, that Smith had “made a very personal 
appeal under oath to the arbitrator concerning a personal/family 
problem which caused this one time lapse in drug usage. The 
arbitrator found this testimony creditable.” Pet. App. 28a. 
Although that statement is not altogether clear, it is most natu- 
rally read to mean that the arbitrator credited Smith’s charac- 
terization of his drug use as a “one time lapse,” as well as Smith’s 
explanation for his misconduct. This Court has discouraged efforts 
to impugn arbitral awards by exploiting ambiguities in the arbitra- 
tor’s opinion. See Enterprise Wheel, 363 U.S. at 598 (“A mere 
ambiguity in the opinion accompanying an award, which permits 
the inference that the arbitrator may have exceeded his authority, 
is not a reason for refusing to enforce the award.”). As we explain 
above, moreover, Smith’s resumption of safety-sensitive duties is 
contingent on his successful completion of any rehabilitation pro- 
gram prescribed by the SAP. That independent prerequisite to 
reinstatement further reduces the significance of the absence of 
express arbitral findings concerning the likelihood of future drug 
use. 

28 

because he found as a factual matter that Cooper could 
be trusted not to use them on the job, the Court of 
Appeals could not upset the award because of its own 
view that public policy about plant safety was threat- 
ened.” 484 U.S. at 45. 

4. Expeditious resolution of employee grievances 
under a collective bargaining agreement is indepen- 
dently desirable. The employer and union are involved 
in a continuing relationship, and the goal of federal 
labor policy is that the relationship be as harmonious as 
possible. Protracted litigation over individual griev- 
ances disserves that policy. Cf. United Parcel Serv., 
Inc. v. Mitchell, 451 U.S. 56, 64 (1981) (collective bar- 
gaining “system, with its heavy emphasis on grievance, 
arbitration, and the ‘law of the shop,’ could easily be- 
come unworkable if a decision which has given ‘meaning 
and content’ to the terms of an agreement, and even 
affected subsequent modifications of the agreement, 
could suddenly be called into question as much as six 
years later”). 

Thus, judicial deference to arbitral decisions serves 
an important practical purpose regardless of whether 
arbitrators are better than courts at determining the 
appropriate sanction for breaches of workplace rules. 
So long as arbitrators are equally good (or even pass- 
ably good) at making such judgment calls, a deferential 
standard helps to ensure that the arbitrator’s decision 
will be treated when issued as essentially final, thereby 
allowing the parties to put the controversy behind 
them. Petitioner’s proposed rule, by contrast, would 
likely result in protracted litigation in a broad range of 
cases. Cf. Enterprise Wheel, 363 U.S. at 599 (“plenary 
review by a court of the merits would make mean- 
ingless the provisions that the arbitrator’s decision is 
final, for in reality it would almost never be final”). 

29 

5. As this Court emphasized in the Steelworkers 
trilogy, the significance of arbitration clauses must be 
assessed in the context of the collective bargaining 
agreement as a whole. Such clauses further the cause 
of industrial peace because they have historically 
served as the quid pro quo for the union’s agreement 
not to strike. See American Mfg., 363 U.S. at 567 
(“There is no exception to the ‘no strike’ clause and 
none therefore should be read into the grievance clause, 
since one is the quid pro quo for the other.”); Warrior & 
Gulf, 363 U.S. at 578 (“A major factor in achieving 
industrial peace is the inclusion of a provision for 
arbitration of grievances in the collective bargaining 
agreement,” since “arbitration is the substitute for 
industrial strife.”); Alexander v. Gardner-Denver Co., 
415 U.S. 36, 54 (1974) (“The primary incentive for an 
employer to enter into an arbitration agreement is the 
union’s reciprocal promise not to strike.”). 

Under petitioner’s approach, however, courts would 
exercise de novo review over any arbitral ruling that 
potentially affects the health or safety of the public, 
even if the parties have agreed to entrust the dispute to 
an arbitrator. That rule would effectively render arbi- 
tration clauses unenforceable with respect to a substan- 
tial category of workplace grievances. Petitioner urges 
that result despite the fact that arbitration clauses have 
historically been central to the maintenance of indus- 
trial peace, and despite the fact that federal labor law 
has broadly encouraged arbitration of disputes related 
to the implementation of collective bargaining agree- 
ments. See 29 U.S.C. 173(d) (“Final adjustment by a 
method agreed upon by the parties is declared to be the 
desirable method for settlement of grievance disputes 
arising over the application or interpretation of an 
existing collective-bargaining agreement.”). Peti- 
tioner’s apparent dissatisfaction with the limited scope 

30 

of the public policy exception to enforceability of arbi- 
tration awards provides no justification for its proposed 
radical undermining of the finality of such awards, 
which would subvert federal labor policy and threaten 
substantial disruption of the collective bargaining 
process. 

CONCLUSION 

The judgment of the court of appeals should be 
affirmed. 

Respectfully submitted. 

NANCY E. MCFADDEN 

General Counsel 

PAUL M. GEIER 

Assistant General Counsel 

PETER J. PLOCKI 

Senior Attorney 
Department of 

Transportation 
SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Acting Assistant Attorney 

General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

MALCOLM L. STEWART 

Assistant to the Solicitor 

General 

WILLIAM KANTER 
MARK W. PENNAK 

Attorneys 

JULY 2000