This is an appeal from a labor arbitrator's opinion regarding Hoechst's termination of DeBusk. The parties have filed cross-motions for summary judgment. The petitioner asks for summary judgment in his favor on his petition to vacate the arbitrator's award. Respondent asks for summary judgment upholding the arbitrator's award and granting it Counsels' fees. The motions have been fully briefed and argued and are ready for disposition.

I. Facts

Prior to September 28 1994 DeBusk was employed by Hoechst as an electronic and instrument mechanic at Hoechst's plant in Narrows Virginia. DeBusk became a member of the Amalgamated Clothing and Textile Worker's Union ("Union") and thus was subject to the collective bargaining agreement between the Union and Hoechst. On March 29 1994 Hoechst management observed that DeBusk appeared to be impaired. DeBusk was substance abuse tested under Hoechst's "for cause" testing policy and procedures. Hoechst found DeBusk to be under the influence of marijuana codeine and morphine while at work. The test was confirmed by a blood/urine test administered that day. Pursuant to the Celco Substance Abuse Policy Hoechst referred DeBusk to the Employee Assistance Program and suspended DeBusk until he tested negative for drugs and alcohol.

As a condition of reinstatement on April 29 1994 DeBusk and the union president union department chairperson and representatives of Hoechst signed a twenty-four month Conditional Employment Agreement ("Agreement"). The Agreement set forth the revised terms of DeBusk's employment with Hoechst. The Agreement incorporated most of the terms of the original collective bargaining agreement and set forth additional provisions relating to drug and alcohol screening. The Agreement stated in part that "a positive result from a drug and alcohol screening will result in [DeBusk's] immediate termination and will be without recourse to the grievance procedure or to arbitration." DeBusk and all other parties to the Agreement agreed that DeBusk waived his rights under Article 20 and 21 of the collective bargaining agreement to grieve or arbitrate any discipline or termination for violation of the Agreement. Under the Agreement Hoechst could terminate DeBusk for any of the following three reasons: (1) working "under the influence" (2) failure to comply with the recommendations of the Employee Assistance Program Counselor or (3) a positive result from a drug and alcohol screening. DeBusk became subject to periodic unannounced substance abuse testing for the twenty-four month period of his conditional employment.

DeBusk advised Hoechst management that he suffered from recurring migraine headaches and that he took certain prescribed medication for this condition. On August 15 1994 Hoechst conducted a drug screen on DeBusk whereby DeBusk again tested positive for controlled substances. Hoechst immediately suspended DeBusk. In response to a letter dated September 7 1994 DeBusk's physician Dr. McMahon confirmed that he had prescribed Tylenol #3 Butasol Restoril Imatrex and Cogesic to DeBusk but Dr. McMahon also stated that the medications were not to be taken at work and that DeBusk could work safely only as long as the medications were not taken at work or immediately prior to going to work. On September 28 1994 Hoechst terminated DeBusk for violating the Agreement.

DeBusk claims that a test indicating prescription medication is not a positive test for substance abuse. The Substance Abuse Policy states that "an employee who tests positive for others than authorized use of prescription medication will not be returned to work." The Substance Abuse Screening Test Consent Form states "Legally prescribed medication taken under the direction of a physician will not be reported as positive."

II. Procedural History

DeBusk initiated the internal grievance procedure set forth in the original collective bargaining agreement and submitted the dispute to arbitration over Hoechst's objection. On November 23 1994 Arbitrator David Beckman issued an Opinion and Award in favor of Hoechst and against DeBusk. In so holding Beckman reasoned that the termination was for just and proper cause and that DeBusk's allegations were not arbitrable. On May 24 1995 DeBusk filed a Bill of Review in the Circuit Court for the County of Giles Virginia and Hoechst filed a Notice of Removal to this Court on June 22 1995 alleging jurisdiction under Section 301 of the Labor Management Relations Act of 1947 29 U.S.C. Sec. 185(a).

III. Discussion

At the hearing before this Court DeBusk's Counsel argued (1) that Arbitrator Beckman exceeded his authority in making his ruling that the case was not arbitrable and (2) that Arbitrator Beckman considered the issue of whether the termination was for just and proper cause as a "throw away" issue. DeBusk is correct with his first argument but incorrect with his second. I find that Arbitrator Beckman fully considered the merits of the decision to terminate DeBusk and upheld the termination. Therefore the issue of arbitrability is moot and the arbitrability award stands.

A. Arbitrability

First DeBusk is correct that the arbitrator did not have authority to declare this case not arbitrable. In AT&T Technologies Inc. v. Communications Workers 475 U.S. 643 649 89 L. Ed. 2d 648 106 S. Ct. 1415 (1986) Court stated "Unless the parties clearly and unmistakably provide otherwise the question of whether the parties agreed to arbitrate is to be decided by Court not the arbitrator." In the case at hand while the parties clearly and unmistakably agreed that the case was not arbitrable the parties did not clearly and unmistakably agree that the question of whether the parties agreed to arbitrate was for the arbitrator and not Court. Therefore this question was likely for Court.

Who was to decide the question is of little importance to the end result of this case. The parties clearly agreed that any termination of DeBusk was not arbitrable thus making DeBusk's situation similar to an at-will employee. Any reasonable court would agree with Arbitrator Beckman that the termination was not arbitrable. However Arbitrator Beckman was in error to consider the arbitrability of the dispute. This error is irrelevant because as discussed in the following section Arbitrator Beckman gave frill attention to the merits of the termination and decided that the termination was for just and proper cause. The case having been arbitrated the arbitrability of the case is moot.

B. Analysis on Merits

DeBusk is incorrect that the arbitrator treated his ruling on the merits as a throw away issue. By "throw away issue " I think that DeBusk's Counsel meant that the issue was an afterthought which was not considered seriously because Arbitrator Beckman's ruling on the arbitrability decided the case. I disagree that the issue of whether the termination was just and proper was a throw away issue for the following reasons. Arbitrator Beckman gave at least as much consideration to this issue as his consideration of the arbitrability of the dispute. If any issue was a throw away issue it was the issue of arbitrability. In reading his opinion in all likelihood Arbitrator Beckman considered both issues seriously ruling alternatively on each. In his Opinion and Award Arbitrator Beckman did state that the issue was whether the termination was arbitrable. However the entire analysis in his opinion deals with whether the termination was just and proper; he makes no mention of whether the case was arbitrable.

Arbitrator Beckman's entire analysis is as follows:

AFTER BEING FULLY ADVISED I find that termination of the Grievant's [DeBusk's] employment relationship is proper. No injustice has been dealt the Grievant. Under the Conditional Employment Agreement following the Grievant's prior termination he promised in effect that he would no longer be under the influence of drugs in the work place. The fact that the drugs which influenced him were drugs which were obtainable by prescription does not insulate him from the consequences of failing the drug test on August 15 1994.

The Grievant's allegation that he was treated in an abusive manner by the nurse at the time of the taking of the drug test. even if proven does not operate to undo the effect of the positive drug test. The point is that the Grievant is accountable for his actions. By being at work under the influence of drugs whether legal or illegal he compromised the safety of his fellow workers. Under the collective bargaining agreement as interpreted in a prior ruling by this arbitrator and as interpreted in the instant case the Union acted within its authority in entering into the Conditional Employment Agreement. I hold that it is proper and just to enforce the termination of Michael Debusk [sic].

Arbitrator Beckman's analysis deals solely with the issue of whether the termination was for just and proper cause. His analysis shows a thorough consideration of this issue. DeBusk's only evidence supporting that this issue was a throw away issue is the fact that Arbitrator Beckman stated the issue of arbitrability as the only issue. However in his analysis Arbitrator Beckman only addressed the issue of whether the termination was for just and proper cause. In his award subsequent to his analysis Arbitrator Beckman stated first that the termination was for just and proper cause and second that the issue was not arbitrable. This more than overcomes DeBusk's evidence that Arbitrator Beckman neglected the issue of whether the termination was for just and proper cause.

DeBusk sought arbitration of this dispute over Hoechst's objection. He cannot now contest the arbitrator's ruling on the merits based on his argument that the issue of arbitrability was for Court.

C. Counsels' Fees

Hoechst's counterclaim in part seeks Counsels' fees. As DeBusk's Counsel clarified at oral argument DeBusk challenged the arbitrator's authority to decide arbitrability and whether the arbitrator's merits analysis was a thorough analysis. DeBusk mainly challenged the arbitrator's authority and did not challenge the merits in the usual sense. Therefore the standard for assessing the justification of the challenge should be lenient. See UFCW v. Marval Poultry Co. 876 F.2d 346 351 (4th Cir. 1989).

While if I accepted both of DeBusk's arguments it likely would not affect the outcome of the case and while accepting only DeBusk's argument concerning arbitrability does not affect the outcome DeBusk did have one valid argument and DeBusk's other argument was not so farfetched to warrant granting Hoechst's claim for Counsels' fees.

IV. Conclusion

For the foregoing reasons I will grant Hoechst's motion for summary judgment to enforce the arbitrator's Opinion and Award and deny DeBusk's summary judgment motion to vacate the arbitrator's decision. I will grant DeBusk's summary judgment motion as Hoechst's counterclaim for Counsels' fees and deny Hoechst's summary judgment motion as to Counsels' fees.