CLARKSBURG –- Consolidation Coal can't fire a miner who tested positive for cocaine in the mine, a federal judge has ruled.

"No public policy requires the termination of any employee who tests positive for cocaine usage if the employee is not under the influence of cocaine while in the mine," U.S. District Judge Frederick Stamp wrote on Nov. 8.

Consol's contract with the United Mine Workers didn't require it either, he wrote.

He denied Consol's bid to overturn arbitrator Michael Wolf, who sent Markell Koon back to his job at Robinson Run mine.

In 2008, Consol randomly picked Koon for a test.

He tested positive, asked for a second test, and failed again.

Consol suspended him with intent to discharge.

Arbitrator Wolf found Consol didn't have just cause to dismiss Koon because it offered no evidence that he was under the influence of cocaine.

Wolf ordered Consol to reinstate him and pay for his rehabilitation.

Consol sued the union in federal court last year, claiming Wolf exceeded his authority and imposed his own notions of right and wrong.

Both sides moved for summary judgment, and the union won.

Stamp wrote that "the question before this court is not whether Koon's drug use itself violates public policy, but whether the agreement to reinstate him does so."

"The arbitrator determines whether there was just cause for the discharge and his determination is final," Stamp wrote.

The contract didn't define just cause, he wrote, so Wolf interpreted it.

"Nowhere does the collective bargaining agreement impose mandatory discharge for employee drug use," he wrote.

He wrote that drug use resulted in penalty up to and including discharge.

"The arbitrator's decision was consistent with the parties' general intent as manifested in this agreement," he wrote.

He acknowledged the danger of cocaine but added that he must uphold an arbitrator's award if it even arguably construes a collective bargaining agreement.

He wrote that "an arbitrator does not need to give any reason for his decision."

Stamp noted that Wolf didn't condone Koon's conduct or ignore the safety risk that drug use by miners might pose.

"The award punishes Koon by suspending him without back pay and provides that Koon effectively enter into a 'last chance' agreement," he wrote.

Stamp denied a request from the union for attorney fees, finding Consol's challenge to the award had an arguable basis in law.

Charles Donnelly of Charleston represented the union, along with Judith Rivlin from the international union in Fairfax, Va.

Carolyn Wade and Robert Steptoe Jr. of Steptoe and Johnson in Bridgeport, represented Consol, along with Robert Vukas from Consol in Cannonsburg, Pa.

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