IN THE UNITED STATES COURT OF APPEALS

                                  FOR THE FIFTH CIRCUIT


                                          No. 98-10273
                                       (Summary Calendar)



INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL 351,
                                                                             Defendant-Appellant.

                                               versus

COOPER NATURAL RESOURCES, INC.,
                                                                             Plaintiff-Appellee.



                             Appeal from United States District Court
                                for the Northern District of Texas

                                         January 11, 1999

Before KING, BARKSDALE and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge.

       The International Union of Operating Engineers (“IUOE” or the “union”), through its Local

351, defendant in a lawsuit brought pursuant to the Labor Management Relations Act of 1947, 29

U.S.C. §§ 185(a), (c) (1994) (“LMRA”), appeals an order of the district court vacating an arbitration

award in its favor.   Cooper Natural Resources, Inc. (“Cooper Natural”) brought suit under the

LMRA after a dispute between it and the IUOE had been submitted to arbitration; since the

arbitration involved the construction of a contract between an employer and a labor organization, the

district court was authorized to evaluate the arbitrator’s decision. Pursuant to that review, the
District Court for the Northern District of Texas found that the arbitration, which concerned a

disciplinary action against an employee union member, was deficient in several respects. As such, the

district court granted summary judgment in favor of Cooper Natural and vacated the award. We

conclude that the award should indeed be vacated and thus AFFIRM the district court in all respects.

I.     FACTS AND PROCEDURAL HISTORY

       Cooper Natural produces sodium sulphate, a mineral commonly used in detergents and in the

manufacture of wood pulp, at a facility in Seagraves, Texas. The manufacture of sodium sulphate

is an inherently dangerous industry; thus, Cooper Natural has an extensive safety policy for its

employees. Cooper Natural trains its employees thoroughly in the proper conduct of their duties to

ensure that accidents do not occur. Since 1971, Cooper Natural’s employees have been represented

by the IUOE. In 1993, Cooper Natural and the IUOE nego tiated a new collective bargaining

agreement (“CBA”) to replace one which had been in place for some years;1 this 1993 CBA

incorporated by reference an alcohol and drug policy to which the parties had agreed in 1992. The

IUOE’s members ratified the 1993 CBA; pursuant to the CBA, the employees agreed, inter alia, to

submit to periodic, random drug tests.

       These drug screening tests took place during physical examinations of employees; if the test

disclosed that an employee’s use of controlled substances might be detrimental to the employee or

to fellow employees at the plant, Cooper Natural reserved the right under the CBA “to make such




       1
          In December 1996, Cooper Natural purchased the assets of Ozark-Mahoning Company
(“Ozark-Mahoning”), a subsidiary of Elf Atochem North America, Inc. The CBA and the alcohol
and drug policy at issue in this lawsuit were negotiated by Ozark-Mahoning, but it remained in effect
after the sale to Cooper Natural. Thus, for convenience’s sake, references in this opinion will be to
Cooper Natural throughout.

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adjustments in the employee’s status as are found necessary to correct the situation.”2 At one such

random screening, conducted during an annual physical, Elvin Gates, a member of Local 351, tested

positive for barbiturates.3 At the time of this physical in 1996, Gates occupied the job of chiller

operator at the Seagraves plant, and his duties included the operation of a mechanical refrigeration

system charged with anhydrous ammonia. Anhydrous ammonia, a hazardous substance regulated by

the Occupational Health & Safety Administration, could seriously harm the operator of the

refrigeration system as well as others around the system if the ammonia is handled improperly. Gates

explained his positive test as resulting from his severe headaches, which led to his taking his wife’s

prescription medication containing barbiturates to relieve them.4

       As a result of the positive test, Cooper Natural decided to discharge Gates. After notification

that he was to be released, the IUOE intervened on Gates’s behalf, and the union and Cooper Natural

negotiated a Last Chance Agreement (the “agreement” or “LCA”) whereby Gates’s discipline would

be reduced. Pursuant to this agreement, Gates was allowed to continue his employment as a chiller



       2
        The CBA also provided t hat any action taken by Cooper Natural resulting from a drug
screen would not be subject to the grievance procedures set forth in the CBA.
       3
         Gates was informed at the outset of his physical that the examination would include a drug
screening; before the physical ever began, Gates signed a consent form authorizing collection of a
urine specimen for purposes of the screen.
       4
          Although Gates contended at the arbitration, and the arbitrator so found, that he was
unaware that his wife’s medication contained barbiturates, the IUOE presented no summary judgment
evidence in support of this contention.
       In its briefs before this court, the IUOE again simply asserts that Gates was unaware that he
was taking barbiturates when he medicated himself using his wife’s physician-prescribed controlled
substances. Cooper Natural would have us affirm the district court on the ground that the IUOE
cannot introduce on appeal evidence which it did not tender at summary judgment, but we do not
consider the IUOE’s unsupported assertion that Gates failed to realize what he was doing to be “new
evidence.” As nothing more than an argumentative conclusion, we decline to affirm on that ground.

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operator, but with loss of pay for the time he was off work (a few weeks) during the dispute. In

exchange for this “last chance,” Gates agreed (1) to abstain from using drugs in derogation of the

drug policy; (2) to submit to whatever testing was deemed necessary by Cooper Natural for a period

of no less than twelve months; and (3) that his failure to comply with either promise would subject

him to immediate termination.

       Almost immediately after execution of the agreement, Gates and the IUOE filed a grievance

requesting that the LCA be set aside. Cooper Natural denied the grievance, and the union thereafter

submitted the matter to arbitration. Under the CBA, the arbitrator’s sole function was to determine

whether Cooper Natural or the union was correct with reference to the proper application and

interpretation of the CBA. The arbitrator did not have any authority to change, modify, amend, or

supplement the CBA.

       At the arbitration, the union conceded that Gates had taken barbiturates and tested positive

on the random drug screen. The IUOE nevertheless argued that Gates should not have been

disciplined at all because he lacked notice of t he drug policy.5 In response, Cooper Natural

introduced into evidence two memoranda that reflected that it had given copies of its drug policy to

all employees when the 1992 policy was enacted and incorporated into the CBA.6 Notwithstanding

this evidence, the arbitrator held that, because the drug policy was not physically attached to the

memoranda introduced into evidence, Cooper Natural failed to show that Gates had notice of the


       5
       As with Gates’s assertion that he took the barbiturates accidentally, the union did not seek
to demonstrate via recourse to anything other than the bald assertion that Gates was unaware of
Cooper Natural’s drug policy.
       6
         Gates had been employed at the plant since January 1982, rising to the level of chiller
operator sometime before 1996. At all times, Gates was represented by the union, and he ratified the
1993 CBA.

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policy. As a result, the arbitrator sustained the grievance and ordered that the LCA be set aside and

that Gates be made whole in all respects.

         The district court acknowledged at the outset of its review that its ability to overturn an

arbitrator’s award was limited; as long as the arbitrator’s award “draws its essence from the CBA”

and is not merely the arbitrator’s “own brand of industrial justice,” the district court conceded, the

award must be affirmed. See Memorandum Opinion of District Court at 6 (quoting United Paper

Workers Int’l Union v. Misco, Inc., 

, 36 (1987)). The court hel d that this award,

however, was deficient because it was contrary to express contractual provisions. The district court

ruled that whether Gates had notice of the drug policy was not an interpretation issue for the

arbitrator to determine and that the arbitrator “usurped the ability of the parties to settle their own

dispute” by implementing a remedy t hat was unsupported by the LCA.                 Mem. Op. at 7.

Consequently, the district court vacated the arbitrator’s decision to set aside the LCA and granted

summary judgment in favor of Cooper Natural.

II.      DISCUSSION

         We exercise de novo review of the grant of a summary judgment. See Boyd v. State Farm

Ins. Cos., 

, 328 (5th Cir. 1998). Summary judgment shall be entered in favor of the

moving party if the record, taken as a whole, “show[s] that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c).

A.       Gates had notice under the CBA that a drug policy circumscribed his actions.

         Review of arbitration awards is, of course, strictly limited. See Delta Queen Steamboat Co.

v. District 2, Marine Eng’rs Beneficial Ass’n, 

, 604 (5th Cir. 1989), cert. denied, 498


                                                  

(1990); see also United Steelworkers v. Enterprise Wheel & Car Corp., 

, 597

(1960) (finding that an arbitration award “is legitimate only so long as it draws its essence from the

collective bargaining agreement”). Nonetheless, we conclude that the district court’s review was

appropriate as to the question whether Gates had notice of the drug policy; the arbitrator’s finding

to the contrary ignored the plain language of the contract and involved his engaging in just the sort

of “industrial justice” that the Supreme Court has proscribed. See 

; see also

Delta 

(“[T]he rule in this circuit . . . is that arbitral action contrary to express

contractual provisions will not be respected.”).

        In the case at bar, the IUOE does not dispute that Gates ratified the 1993 CBA.

Consequently, there can be no genuine issue of material fact as to whether the drug policy, which was

explicitly incorporated into the CBA, bound Gates and all other employees at the plant. The

arbitrator’s protracted discussion concerning whether Gates had notice of the drug policy was not

an issue open to interpretation under the CBA. To hold, as the arbitrator did, that Gates had no

notice of the policy, leads to the unwarranted conclusion that Gates had no notice of an agreement,

the 1993 CBA, that he ratified, presumably after reading it. As the district court also found, the

arbitrator simply did not have the authority to ignore the parties’ agreement in fashioning a remedy,

see S.D. Warren Co. v. United Paper Workers Int’l Union, 

, 8 (1st Cir.), cert. denied, 

(1988), because an award that is contrary to express contractual provisions cannot be

sustained. See Bruce Hardwood Floors v. UBC, Southern Council of Indus. Workers, Local 2713,

, 452 (5th Cir.), cert. denied, ___ U.S. ___, 

(1997).

        In addition, even if we were somehow to conclude that ratifying the 1993 CBA, which

incorporated the 1992 drug policy, did not constitute notice to Gates, we are loathe to accept the


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arbitrator’s reasoning. It defies credulity to conclude that Gates did not have notice because the

memorandum adduced as evidence by Cooper Natural—a memorandum whose sole purpose was to

discuss the alcohol and drug policy—failed to attach a copy of the drug policy. Furthermore, Gates

consented to have his urine sampled at his annual physical after being informed that the sample was

to be used in a random drug screen. This action constituted effective notice to Gates that a drug

policy existed.

B.     The Last Chance Agreement superseded the CBA with respect to Gates.

       The second consideration which leads us to set aside the arbitrator’s award is actually one of

more import for this circuit. When Cooper Natural and the union entered into the LCA, reducing

Gates’s punishment for failing the drug test, the parties formed a binding contract pursuant to the

CBA which was entitled to enforcement by the arbitrator as “the parties’ chosen means of dispute

resolution.” Bakers Union Factory No. 326 v. ITT Continental Baking Co., Inc., 

, 354

(6th Cir. 1984). The LCA must be thought of as a supplement to the CBA and is just as binding upon

the arbitrator. This has been the rule in three of our sister circuits, and we adopt it today as the

governing law for this court. Cf. Coca-Cola Bot tling Co. v. Teamsters Local No. 688, 

, 1440 (8th Cir.), cert. denied, 

(1992); Ohio Edison Co. v. Ohio Edison Joint

Council, 

, 787 (6th Cir. 1991); Tootsie Roll Indus., Inc. v. Local Union No. 1, 

, 84 (7th Cir. 1987).

       According to the reasoning we herein adopt, an arbitrator ignoring the explicit terms of a last

chance agreement is owed no deference, and his award must be closely scrutinized. This seemingly

harsh rule is necessary because last chance agreements constitute formal contractual settlements of

labor disputes. See Bakers Union 

. Since LCAs follow collective bargaining


                                                 7
agreements in time, they should be construed as superseding a CBA in certain circumstances because

an LCA reflects the parties’ own construction of the CBA.

       As 

, our sister circuits have long enforced this principle and have vacated

arbitral awards that disregard last chance agreements. The decisions establishing this principle merit

some closer scrutiny. In Tootsie Roll Industries, the Seventh Circuit considered the case of an

employee who had been initially discharged for excessive absenteeism; thereafter, however, the

employer and t he union executed a last chance agreement, and the employee was subjected to

reduced discipline. See Tootsie Roll 

. In exchange for being reinstated

with back pay, the employee agreed that she would not miss any further days “for any reason

whatsoever.” See 

another day, the employee was discharged, and she and the union

went to arbitration. At arbitration, the arbitrator considered only the employer’s liberal shop policy,

which did not count excused absences, and reinstated the employee. See 

The district court

vacated the award, and the Seventh Circuit affirmed on the ground that the arbitrator had no authority

to modify the LCA, but rather was bound to enforce it as written. By not basing his award in “the

essence of the agreement,” the arbitrator neglected his duty to follow the “clear requirements” of the

parties’ negotiated contracts. 

circumstances, the arbitration award effectively

eliminated the purpose of the LCA, which was to subject the employee to a higher standard than her

peers. The court observed that, had the parties intended the regular policy to apply, there would have

been no reason to spell out more specific attendance requirements in the LCA. See 

Coca-Cola Bottling, the union and the employer agreed to a last chance

agreement to save an employee union member from discharge due to poor performance. See Coca-

Cola 

. The LCA provided that the employee would be suspended and that


                                                  8
any future similar offenses would result in discharge. Upon his reinstatement, the employee

committed such an offense and was discharged. At arbitration, the arbitrator found that the employee

had committed the offense at issue, but determined that the collective bargaining agreement did not

permit the employer to discharge the employee. See 

The district court vacated the

award, and the Eighth Circuit affirmed, finding that the LCA “superseded the collective bargaining

agreement.” 

As such, the arbitrator was required to view the express provisions of the

LCA as representing the parties’ actual intentions with respect to this employee.

       Finally, in Ohio Edison, the Sixth Circuit reaffirmed its holding in Bakers Union by ruling that

an arbitrator does not have the authority to disregard the explicit terms of a prior settlement or last

chance agreement. See Ohio 

. In Ohio Edison, an employee with a drug

abuse problem was given a last chance to desist from using drugs or face termination. Aft er

continuing to use drugs, the employee was terminated. At arbitration, the employee was reinstated

because the arbitrator found the LCA to be “unreasonably harsh.” 

court enforced

the arbitration award, but the Sixth Circuit reversed and remanded, holding that “normally last chance

agreements are binding in arbitration,” and observing that here the arbitrator did not have the

authority to set aside the LCA, even if it were harsh. 

case at bar, the arbitrator similarly disregarded his obligation to enforce the LCA. After

Gates’s dismissal, the union interceded and negotiated a last chance agreement which placed Gates

back on the job; there is no evidence countering Cooper Natural’s claim that all parties had formally

agreed, in the LCA, to a final resolution of their disput e. Indeed, each of the union’s arguments

before this court addresses the propriety of Gates’s discipline, not the binding nature of the LCA.




                                                  9
By ignoring the LCA and substituting his own impressions in the arbitration, the arbitrator

fundamentally ignored his responsibility to construe the parties’ agreements in an evenhanded way.

III.   CONCLUSION

       For these reasons, we establish today that a last chance agreement will in most cases

supersede the terms o f a collective bargaining agreement, and should be viewed as such by an

arbitrator. As the arbitrator in this case failed to do so, we hold that the district court properly

vacated the arbitration award, and we thus AFFIRM the order of the district court in all respects.




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