Judgment affirmed by Supreme
Court opinion filed 11/28/00
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EASTERN ASSOCIATED COAL COMPANY,
Plaintiff-Appellant,

v.
                                                                  No. 98-2527
UNITED MINE WORKERS OF AMERICA,
DISTRICT 17; LOCAL 1503, UNITED
MINE WORKERS OF AMERICA,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CA-97-819-2)

Argued: May 6, 1999

Decided: August 20, 1999

Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Ronald E. Meisburg, HEENAN, ALTHEN & ROLES,
Washington, D.C., for Appellant. William D. Ryan, DISTRICT 17,
UNITED MINE WORKERS OF AMERICA, Charleston, West Vir-
ginia, for Appellees. ON BRIEF: Anna M. Dailey, Donna C. Kelly,
HEENAN, ALTHEN & ROLES, Charleston, West Virginia, for
Appellant.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Eastern Associated Coal Company ("Eastern") appeals a district
court order granting summary judgment to United Mine Workers of
America, District 17 and Local Union 1503 (collectively, "UMWA")
in Eastern's action seeking vacatur of a labor arbitration award. Con-
cluding that the district court correctly decided the issues before it, we
affirm.

I.

The present dispute arises out of the National Bituminous Coal
Wage Agreement of 1993 ("the Wage Agreement"), a collective bar-
gaining agreement to which Eastern and UMWA are parties. The
Wage Agreement reserves exclusively to Eastern the right to hire and
discharge employees but provides that "[n]o Employee covered by
this Agreement may be disciplined or discharged except for just
cause." J.A. 39. Although "just cause" is not defined in the Wage
Agreement itself, Eastern's substance abuse policy states that any
employee who tests positive for illegal drugs must"be removed from
any safety sensitive position and subject to disciplinary action up to
and including termination." J.A. 62 (internal quotation marks omit-
ted).

James Smith was employed by Eastern as a mobile equipment
operator. In that capacity, Smith was required to have a current com-
mercial driver's license and to operate heavy equipment. On March
25, 1996, Smith was subjected to a random drug test and tested posi-
tive for cannabinoids. As a result of the test, he was suspended and
eventually discharged. Smith grieved the discharge, and his case pro-
ceeded to arbitration. Following a hearing, the arbitrator issued an
award returning Smith to work after a 30-day suspension without
back pay. In addition, Smith was required to take part in a substance

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abuse program. The award further required that Smith be subject to
random drug testing at the discretion of either Eastern or an approved
substance abuse professional over a five-year period.

Smith tested negative for illegal drugs on three subsequent occa-
sions. However, on June 27, 1997, Smith again tested positive for
cannabinoids. Again, he was suspended and subsequently discharged,
and again, he grieved the discharge and his case proceeded to arbitra-
tion. The arbitrator found that Smith's lapse in his abstinence from
recreational drug use was an isolated occurrence caused by a family
problem. Accordingly, the arbitrator issued an award suspending
Smith through October 29, 1997, but then reinstating him, subject to
certain conditions. Those conditions included, inter alia, that Smith
would receive no back pay, that he would reimburse Eastern and
UMWA for the costs of both arbitrations, and that he would provide
a signed, undated letter of resignation which would be dated and
accepted if he tested positive for any illegal drug, or refused to submit
to a drug test, in the following five years.

Eastern sought vacatur of the award in the district court, maintain-
ing that the award does not draw its essence from the Wage Agree-
ment and that it violates a public policy against the use of illegal
drugs by persons in safety-sensitive positions. The district court
granted summary judgment against Eastern. The court reasoned that
because neither the Wage Agreement nor Eastern's substance abuse
policy requires that discharge is mandated as the punishment for
employees who test positive for illegal drugs, the arbitrator rationally
could have concluded that there was not just cause for that punish-
ment under the facts presented here. The court also ruled that the arbi-
trator's award was not contrary to a well-defined and dominant public
policy because although there is a public policy against the use of ille-
gal drugs by those in safety-sensitive positions, there is no such public
policy against the reinstatement of employees who have used illegal
drugs in the past.

II.

On appeal, Eastern, repeating the arguments it advanced below,1  1
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1 Eastern also argues for the first time in its reply brief that, even if the
arbitrator rationally found no just cause for discharge, the arbitrator vio-

                  3
contends that the district court erred in granting UMWA's motion for
summary judgment. Having had the benefit of oral argument and the
parties' briefs, and after careful consideration of the record and the
applicable law, we conclude that the district court correctly decided
the issues before it. Accordingly, we affirm on the reasoning of the
district court. See Eastern Associated Coal Corp. v. UMWA, District
17, No. 2:97-0819 (S.D.W.V. Sept. 30, 1998). 2

AFFIRMED
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lated the Wage Agreement by fashioning his own punishment instead of
ordering that Smith be reinstated immediately. However, because this
argument is advanced for the first time in Eastern's reply brief, it is not
properly before this court, and we decline to address it. See Cavallo v.
Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996).
2 UMWA's motion for leave to file an additional responsive memoran-
dum is granted.

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