1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - X 3 EASTERN ASSOCIATED COAL : 4 CORPORATION, : 5 Petitioner : 6 v. : No. 99-1038 7 UNITED MINE WORKERS OF AMERICA, : 8 DISTRICT 17, ET AL. : 9 - - - - - - - - - - - - - - - - X 10 Washington, D.C. 11 Monday, October 2, 2000 12 The above-entitled matter came on for oral 13 argument before the Supreme Court of the United States at 14 11:05 a.m. 15 APPEARANCES: 16 JOHN G. ROBERTS, JR., ESQ., Washington, D.C.; on behalf of 17 the Petitioner. 18 JOHN R. MOONEY, ESQ., Washington, D.C.; on behalf of the 19 Respondents. 20 MALCOLM L. STEWART, ESQ., Assistant to the Solicitor 21 General, Department of Justice, Washington, D.C.; on 22 behalf of the United States, as amicus curiae, 23 supporting the Respondents. 24 25 1 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 JOHN G. ROBERTS, JR., ESQ. 4 On behalf of the Petitioner 3 5 ORAL ARGUMENT OF 6 JOHN R. MOONEY, ESQ. 7 On behalf of the Respondents 26 8 ORAL ARGUMENT OF 9 MALCOLM L. STEWART, ESQ. 10 On behalf of the United States, as amicus curiae, 11 supporting the Respondents 41 12 REBUTTAL ARGUMENT OF 13 JOHN G. ROBERTS, JR., ESQ. 14 On behalf of the Petitioner 50 15 16 17 18 19 20 21 22 23 24 25 2 1 P R O C E E D I N G S 2 (11:05 a.m.) 3 CHIEF JUSTICE REHNQUIST: We'll hear argument 4 next in Number 99-1038, The Eastern Associated Coal 5 Corporation v. United Mine Workers of America. 6 Mr. Roberts. 7 ORAL ARGUMENT OF JOHN G. ROBERTS, JR. 8 ON BEHALF OF THE PETITIONER 9 MR. ROBERTS: Thank you, Mr. Chief Justice, and 10 may it please the Court: 11 Twice the driver in this case tested positive 12 for illegal drugs, and twice the company that employed him 13 to drive its 25-ton vehicles in West Virginia tried to 14 fire him. Each time an arbitrator ordered the driver 15 reinstated. The second time the company went to court, 16 arguing that the reinstatement award should not be 17 enforced because it was contrary to public policy to put 18 this driver back behind the wheel. 19 The district court and the court of appeals, 20 however, rejected that argument and concluded that because 21 reinstatement was not illegal, the public policy exception 22 to the enforceability of contracts, quote, does not apply, 23 unquote. 24 QUESTION: Mr. Roberts, did the company have any 25 provision in the collective bargaining agreement about 3 1 what it was going to do for positive drug testing? 2 MR. ROBERTS: Yes. The agreement said that in 3 the case of a positive drug test the driver was subject to 4 sanctions up to and including termination, and the 5 arbitrator concluded that in this case they hadn't 6 established just cause. 7 That, of course, is the predicate for the 8 application of the public policy exception in every case, 9 the fact that the contract provides a result that is 10 different from the one the parties are arguing for under 11 public policy. 12 QUESTION: How do you read Department of 13 Transportation regulations on this? They're quite 14 extensive, and as I read them it doesn't expressly cover 15 what happens for a second violation. There was a proposal 16 to do something that I guess they didn't adopt. 17 MR. ROBERTS: Yes, there was a proposal, and it 18 was just not adopted. 19 QUESTION: Yeah. 20 MR. ROBERTS: We don't know if it was because it 21 was regarded as too strict or not strict enough. 22 QUESTION: So is it within the provisions of the 23 regulations actually adopted that an employee could be 24 restored to driving a truck under these circumstances? 25 MR. ROBERTS: Certainly after one positive test. 4 1 QUESTION: After a -- 2 MR. ROBERTS: The question of a -- 3 QUESTION: It just doesn't say. 4 MR. ROBERTS: No. The question of a recidivist 5 is not addressed by the regulations at all. 6 QUESTION: Mm-hmm. 7 MR. ROBERTS: What the regulations provide -- 8 and we agree with the Solicitor General's reading of the 9 regulations. We don't take issue with it -- is that in a 10 case of a positive drug test a couple of things have to 11 happen. The driver, before he can go back to work, has to 12 pass the minimum requirements, which is just evaluation by 13 a substance abuse professional and pass a return-to-work 14 test, and then whether or not the driver gets his job back 15 is left to private ordering. 16 Now, if that private ordering takes the form of 17 a contract, a collective bargaining agreement, that 18 contract should be subject to the public policy exception 19 just like every other contract is. There is not -- 20 QUESTION: Why, Mr. Roberts, because you could 21 have said expressly, you didn't have to as a contracting 22 party rely on what a court might or might not declare to 23 be the public policy. Could you have not said, a driver 24 gets tested and shows up positive twice, he's out. You 25 could have said that. You could have negotiated for that. 5 1 MR. ROBERTS: Well, we could have tried. 2 Whether or not it would have been the result of the 3 collective bargaining practice is another question. 4 QUESTION: But you didn't, you didn't do that, 5 or we don't know. 6 MR. ROBERTS: The arbitrator determined that we 7 didn't, I think is the best way to put it. Now -- but 8 under this court's decision in Kaiser Steel, though, even 9 if we had signed a contract that was illegal, we'd still 10 have standing to object to that. 11 QUESTION: Yes, but I'm just trying to make the 12 narrow point that an employer could bargain for a rule 13 that says you test positive for drugs twice, and you're 14 out, could bargain for such a rule. 15 MR. ROBERTS: Yes. There's no question about 16 that. Again, all that does is pose the question under the 17 public policy exception. 18 QUESTION: Well then it would make that academic 19 or moot if you had it in the contract. 20 MR. ROBERTS: Well, if the union agreed to it, 21 if it were phrased in such a way that it were not subject 22 to an arbitrator's misinterpretation, and it's also the 23 case that it may not be the best result. 24 QUESTION: There are such contracts, as I 25 understand it -- 6 1 MR. ROBERTS: Yes. 2 QUESTION: -- are there not? 3 MR. ROBERTS: Yes. 4 QUESTION: They'd make it explicit where the 5 first time, second time, you're out, period. 6 MR. ROBERTS: Yes, there are some contracts. In 7 other cases unions have resisted them, and in other cases 8 perhaps the employer recognizes that an absolute rule may 9 not be the best result. 10 QUESTION: So in other words, what you're 11 seeking, then, would be a rule that says the public policy 12 kicks in if the employer wants to discharge this person, 13 but suppose the employer would say, we're going to give 14 him a second chance, even a third chance, there would be 15 no public policy to come into that picture. 16 MR. ROBERTS: That's right, and for a very 17 important reason, is because the doctrine that we're 18 talking about is a doctrine of contract law. It only 19 applies when the question of the enforcement of a contract 20 is at issue. That is an important limitation on the 21 public policy role for the courts, and -- 22 QUESTION: But in other words you are saying the 23 bottom line rule that you're urging is that you ought to 24 be permitted, if you so choose, to discharge this man, but 25 if you do not so choose, then there's no -- there's 7 1 nothing that -- 2 MR. ROBERTS: Oh, but there is something very 3 much that constrains the company's choice in that 4 situation, and that's tort law. The same public policy 5 that informs the exercise of the public policy exception 6 when the court is asked to enforce the contract restrains 7 what the company can do on its own unilaterally. 8 QUESTION: Well, I want to get into that, but 9 just before we leave this last question, if the company 10 had a contract that said three strikes and you're out, 11 would that contradict public -- but not two and not one, 12 would that contradict public policy? 13 MR. ROBERTS: If the -- the question would come 14 up when someone wanted to enforce a contract. 15 QUESTION: The contract says three strikes and 16 you're out, not two, not one. Then on the second time the 17 employer comes and says, well, you know, this violates 18 public policy, we want him out. 19 MR. ROBERTS: Yes, it would not prevent the 20 application of the public policy exception. The -- in 21 every case that the question comes up, whether it's this 22 case or the Kensington -- 23 QUESTION: So that would be a valid argument by 24 the employer. In other words, he -- 25 MR. ROBERTS: It would not prevent the court -- 8 1 QUESTION: There is in your view a public policy 2 which would prohibit a three-strikes clause of the kind I 3 describe? 4 MR. ROBERTS: Well, what it would prohibit, 5 depending on the circumstances, and the Town of Newton 6 case said this is a very fact-intensive inquiry on the 7 court's part, when the court is asked to enforce the two 8 strikes, and he should be fired, the fact that the 9 contract provided three strikes doesn't act as an absolute 10 bar. It is always the case when the public policy 11 question comes up that the contract provides something 12 else. 13 QUESTION: Well, Mr. Roberts, you've referred to 14 the public policy exception several times. Would you 15 state your version of the public policy exception? 16 MR. ROBERTS: Yes. The public policy exception 17 is the one this Court articulated in Town of Newton, which 18 is that courts have not only the authority but the 19 obligation to decline to enforce contracts that are 20 illegal or that violate public policy. 21 Now, to determine whether they violate public 22 policy, what this Court did was adopt the Restatement 23 test, one that has been developed over centuries of common 24 law, which asks whether the interests in enforcing the 25 agreement are outweighed in the circumstances by a public 9 1 policy harm by the enforcement of the agreement. 2 QUESTION: That's just kind of boiler plate. 3 MR. ROBERTS: Well -- 4 QUESTION: I mean, how would you -- can you 5 amplify it at all? 6 MR. ROBERTS: Certainly. The public policy in 7 this case is the public policy against the use of illegal 8 drugs by those in safety-sensitive positions. Now, that 9 policy is well-defined, because Congress and the executive 10 have said what those positions are, not the courts. 11 Congress and the executive have said it covers these 12 substances, not the courts, and the policy is so strong 13 that Congress has said, we're going to test you to make 14 sure that the policy is implemented, and Congress and the 15 executive have said how that testing should be done, and 16 how often. The courts -- 17 QUESTION: How does the policy differentiate 18 between two strikes and three strikes? 19 MR. ROBERTS: Well, at that point you get into 20 the fact-intensive weighing that this Court in Town of 21 Newton says, said has to be done. In other words, you 22 have to look at all of the circumstances and determine 23 whether that policy -- 24 QUESTION: Does that mean any -- one judge might 25 say, well, one strike's enough for me, that's the end of 10 1 the ball game? 2 MR. ROBERTS: Well -- 3 QUESTION: Another judge might say, two strikes, 4 and still another might say three strikes. How do we know 5 which is the right number? 6 MR. ROBERTS: With respect to the one strike I 7 think the regulations would prevent that in most 8 situations, because they contemplate that in some 9 circumstances you can be reinstated, so there should not 10 be an absolute rule of one strike and you're out. 11 Now, the objection Your Honor raises is the same 12 objection that could have been raised in the Town of 13 Newton case. How do you tell which release dismissal 14 agreement violates the policies underlying section 1983? 15 It's an objection that has been raised with respect to the 16 public policy exception since the beginning. Go back to 17 the Muschany case and even before that. 18 And yet the exception has endured because the 19 courts have recognized that if courts do not ensure that 20 contracts do not violate public policy, no one else can. 21 QUESTION: Whenever the policy applies, I take 22 it it trumps the contract. 23 MR. ROBERTS: Absolutely, yes. 24 QUESTION: What do you look to for -- now, 25 you've talked about the DOT regulations, which obviously 11 1 have some -- are there other sources to be relied on here? 2 You say something about the congressional -- in testing -- 3 MR. ROBERTS: Well, one -- yes -- well, in the 4 testing, but what the Court said in Muschany, repeated in 5 Grace and in Misco, is, courts just don't pluck these 6 policies out of the air. You have to look to the laws and 7 legal precedents. You look to the testing act, the DOT 8 regulations, the drug-free work place acts, and one thing 9 they establish is a strong policy of deterrence. 10 They didn't think that by imposing this testing 11 regime they would catch everybody who's using drugs. What 12 they thought was, if people knew they were going to be 13 tested and consequences were going to flow from that, 14 people would stop using drugs. 15 QUESTION: Well, do you -- do we say there's a 16 firm public policy that a repeat offender may not be 17 restored to a job affecting public safety? 18 MR. ROBERTS: Yes. I think -- 19 QUESTION: Is that the policy? 20 MR. ROBERTS: I think it is. Now, there may 21 be -- 22 QUESTION: How -- and do we look to the DOT regs 23 as part of that