Originally from Dispute Resolution Journal

LABOR—SCOPE OF JUDICIAL REVIEW—PUBLIC POLICY

An arbitral award, which overturned the company's rule barring all smoking on company property could not be vacated in the face of alleged health hazards, because the award drew its essence from the collective bargaining agreement and did not violate any established public policy. The company had for several years operated an asbestos manufacturing plant. In order to eliminate health hazards to employees created by small particles of asbestos suspended in the air at the plant, the company installed air quality control devices, which greatly reduced the level of asbestos particles. Minute quantities of the substance, however, still remained. Although the remaining levels of asbestos were not dangerous to nonsmokers, expert opinion indicated that smokers who worked at the plant ran a risk of contracting lung cancer that was 92 times as great as that of nonsmokers. In addition, the greatest damage was caused by smoking while in the plant. To reduce the danger to smoking employees, the company adopted a rule barring smoking on company property, and providing for disciplinary action, including discharge, for violation of the rule. Pursuant to the collective bargaining agreement, the union demanded arbitration over a dispute as to the validity of the rule. The arbitrator held that the rule was invalid. The company sought to vacate the rule as being contrary to the public policy in favor of maintaining a safe working environment, as expressed by the Occupational Safety and Health Act and OSHA regulations. The district court declined to set aside the award, and the court of appeals affirmed, finding that the award drew its essence from the collective bargaining agreement and did not violate public policy. Of importance to the court was the lack of any statute or regulation prohibiting smoking in asbestos plants. "We are not prepared to say that [t]his decision, itself the result of a policy favoring arbitration of labor disputes, offends a national policy against smoking in asbestos plants. If smoking in such plants should be prohibited even at the cost of employee discharge, there are governmental agencies with authority to promulgate such a rule with the force of law."

Johns-Manville Sales Corp. v. International Association of Machinists Local 1609, 621 F.2d 756 (5th Cir. 1980).