United States Court of Appeals,

                          Fifth Circuit.

                           No. 94-30681.

                 EXXON CORP., Plaintiff-Appellant,

                                v.

BATON ROUGE OIL and Chemical Workers Union, Defendants-Appellees.

                          March 15, 1996.

Appeal from the United    States        District   Court   for   the   Middle
District of Louisiana.

Before REYNALDO G. GARZA, JOLLY and DUHÉ, Circuit Judges.

     E. GRADY JOLLY, Circuit Judge:

     This appeal requires us to determine whether, as a matter of

national policy, the federal courts must decline to enforce an

arbitrator's award that orders only backpay—not reinstatement—for

an employee who was fired because of drug use, but also fired in

violation of the terms of his collective bargaining agreement. The

case arose from the discharge of Donald Chube by Exxon Corporation

for his violation of the company's policy on alcohol and drug use.

Chube worked as a supervisor in a "safety-sensitive position," and

was discharged after a drug test indicated that he had used

cocaine.   After Exxon terminated Chube, the Baton Rouge Oil and

Chemical Workers Union grieved his discharge and won an order for

Chube's reinstatement and back pay.         The district court affirmed

the arbitrator's alternative order for reinstatement only.             Exxon

appeals.   We reverse and render.

                                    I

     Exxon operates a chemical plant near Baton Rouge, Louisiana.

                                    1
The production and maintenance employees operate under a collective

bargaining   agreement   dated   March   31,   1988.   Chube,   who   was

ordinarily an operator in the olefins purification department, had

been "stepped up" to a safety-sensitive classification, operations

controller, in which he acted as a temporary supervisor.              The

record is unclear as to the permanency of this position, but it is

clear that he was acting as a temporary supervisor at the time that

he was drug-tested.

     In 1987 Exxon revised its alcohol and drug use policy.           The

new policy authorized unannounced searches for drugs and alcohol on

Exxon property.   It also required employees to submit to alcohol

and drug testing "where cause exists to suspect alcohol or drug

use."   A positive test result or refusal to submit to a test was

grounds for disciplinary action, including termination.         One year

after Exxon revised its policy, the Drug-Free Workplace Act of

1988, 41 U.S.C. § 701-707, was enacted.        To clarify its policies

and to comply with the Act, Exxon published a list of "Posted

Offenses," giving notice that an employee who committed one of the

following offenses could be discharged or otherwise disciplined

without notice:

     a. Being under the influence of alcohol, in the opinion of a
     doctor, Company guard, or supervisor, on Company time or
     property.

     b. Bringing onto Company property, or possessing or using on
     Company time or property, an alcoholic beverage, a
     habit-forming drug, or a drug which the Company believes may
     impair the employee's ability to perform duties in a safe and
     responsible manner.

     c. Habitual use of an alcoholic beverage or habit-forming
     drug; except where the Company doctor believes that such use

                                   2
     is necessary for the employee's health.

     In early 1989, Exxon proposed to add random drug tests for a

group     of      "designated     positions"    with      critical      safety

responsibilities.      Chube's job as temporary supervisor was one of

these "designated positions."        His permanent position as operator

was not covered, however.           The Union objected to the policy

changes.1      It expressed concern that the policy did not provide for

employee rehabilitation.        The Union also objected that the random

test policy would not give employees ample notice that they would

be subject to testing.          Discussions between the Union and Exxon

reached     an   impasse.       Consequently,   in     August   1989,   Exxon

unilaterally issued a Revised Alcohol and Drug Abuse Policy, which

was to be effective September 1, 1989.          The policy contained the

following paragraph:

     Exxon may conduct unannounced searches for drugs and alcohol
     on owned or controlled property. The Company may also require
     employees to submit to medical evaluation or alcohol and drug
     testing where cause exists to suspect alcohol or drug use.
     Unannounced periodic or random testing will be conducted when
     an employee meets any one of the following conditions: has

     1
      The proposed policy change came to the Union's attention in
April 1989, when Exxon published a notice advising its employees
that it would be implementing a new policy, and summarizing the
policy as follows:

            [A]n employee who has had or is suspected of having a
            substance abuse problem will not be allowed to work in
            certain positions. The positions, to be decided by
            management, will include critical jobs where operating
            problems could result in major risks to employees,
            public safety, and facilities. In addition, random
            drug and alcohol testing will be conducted when an
            employee: (1) has had a substance abuse problem, (2)
            returns from rehabilitation, (3) is assigned to certain
            positions, or (4) fills a position where testing is
            required by law.

                                      3
      had a substance abuse problem or is working in a designated
      position identified by management, a position where testing is
      required by law, or a specified executive position.          A
      positive test result or refusal to submit to a drug or alcohol
      test   is   grounds   for  disciplinary    action,   including
      termination.

      On August 24—a week before the new policy was to become

effective—Chube, as an employee in a "highly sensitive position,"

was given a drug test, and the test was positive for cocaine use.

On   September   13,   Exxon   discharged   Chube   "for   violating   the

Company's Alcohol and Drug Policy," but did not set out the precise

nature of the violation.       The Union filed a timely grievance on

Chube's behalf, and when the matter was not resolved through the

grievance process, the Union demanded arbitration.             The issue

stipulated for the arbitrator was whether Exxon had violated the

contract when it discharged Chube and, if so, what should be the

remedy.

      The Union argued that, under Exxon's policies then in effect,

the drug screen administered to Chube was solely to determine his

eligibility to be assigned to a "designated position";          the test

results could not be used for purposes of discipline because he had

violated no posted rule in effect at the time of the test.         Exxon

responded that all employees had been given ample notice that a

positive drug test would result in discharge.          Furthermore, its

policy was based on the obvious need to protect lives and property

against possibly devastating accidents.

      The arbitrator determined that the critical issue in the case

was, not whether Chube engaged in the use of illegal drugs, but

whether in this instance the presumed use of cocaine gave Exxon the

                                    4
right under the contract to discharge Chube.          He concluded that

Exxon violated § 1121 of the contract by discharging Chube.            That

section reads as follows:

      1121. General

           (a) The Company may discipline an employee only for
           cause.

           (b) The Company has posted a list of offenses which merit
           discipline. This list is dated January 3, 1984. Before
           the Company may make any change in this list or any
           subsequent list, the change must be agreed to by the
           Union.

           (c) If an employee commits one of the posted offenses, it
           is cause for discipline, and the Company may discipline
           him without advance notice.

           (d) Even though an employee does not commit a posted
           offense, his conduct or work performance may still be
           cause for discipline.   However, the Company may not
           discipline him without giving him advance notice, and
           where practicable, an opportunity to correct the
           situation.

      The arbitrator found that, under § 1121(b), Exxon could

discharge Chube "without advance notice" only if Chube committed a

posted offense.    He further found that Chube had committed none of

the   posted   offenses   in   effect   on   the   date    of   the   tests;

specifically, there was no evidence that he had brought drugs on

company property or possessed or used drugs on company time, or

habitually used a habit-forming drug.        The arbitrator noted that

the 1989 drug policy did not become effective until September 1,

1989, and that Chube was tested before that date.          Further, and at

the heart of our review today, the arbitrator rejected Exxon's

argument   that,   notwithstanding      whether    Exxon    breached    the

collective bargaining agreement, Chube's discharge was justified


                                    5
based on a strong public policy against the use of drugs.

     The arbitrator's award required Exxon to reinstate Chube

without loss of seniority, and pay him back pay and benefits,

"calculated on the basis of [Chube's] permanent classification wage

level."      Alternatively—and only because Chube was incarcerated

after his discharge for selling drugs—the arbitrator required Exxon

to pay him one year's back pay in the event that Chube was still

unavailable for reinstatement.2

     Exxon then instituted this suit in the United States District

Court for the Middle District of Louisiana, seeking, by motion for

summary judgment, to vacate the arbitration award. The Union filed

a cross motion for summary judgment, seeking enforcement of the

award on the remedy of back pay plus costs, and not on the remedy

of reinstatement.      After the district court granted the Union's

motion for summary judgment and enforced the arbitrator's award,

Exxon timely appealed.

                                   II

         We review a grant of summary judgment de novo.   Calpetco 1981

v. Marshall Exploration, Inc., 

, 1412 (5th Cir.1993).

Once a properly supported motion for summary judgment is presented,

the burden shifts to the non-moving party to set forth specific

facts showing that there is a genuine issue for trial.      Anderson v.

Liberty Lobby, Inc., 

, 249, 

, 2510-11, 

(1986);    Brothers v. Klevenhagen, 

, 455 (5th

Cir.1994), cert. denied, --- U.S. ----, 

, 

      Chube was in prison on the date for his reinstatement.

                                   6
545 (1994).      We review "the facts drawing all inferences most

favorable to the party opposing the motion."            Matagorda County v.

Russell Law, 

, 217 (5th Cir.1994).

      Review of an arbitration proceeding is narrowly limited.                A

court will not disturb an award if it "draws its essence from the

collective     bargaining   agreement"      and    is   not    based   on   the

arbitrator's     "own    brand   of   industrial        justice."         United

Steelworkers of America v. Enterprise Wheel & Car Corp., 

, 597, 

, 1361, 

(1960).               We may not

reconsider an award based on alleged errors of fact or law or

misinterpretation of the contract. United Paperworkers Int'l Union

v. Misco, Inc., 

, 36, 

, 369-70, 

(1987).     However, we may scrutinize the award to ensure that

the arbitrator complied with the jurisdictional prerequisites of

the collective bargaining agreement.            E.I. DuPont de Nemours and

Co. v. Local 900 of Int'l Chemical Workers Union, 

(5th

Cir.1992)    (internal   quotations       and   citations     omitted).     The

district court may vacate an arbitrator's award if the arbitrator

exceeded its arbitral authority provided for in the agreement. 

normally narrow review of an arbitrator's

award, if that award is contrary to public policy, the award cannot

be enforced.      A federal court may vacate the award if it is

"clearly shown" that the award violates "well-defined and dominant"

policy drawn from existing laws and legal precedent.                W.R. Grace

and Co. v. International Union of Rubber Workers, 

,

766, 

, 2183-84, 

(1983);                Misco, 

, 108 S.Ct. at 374-75.              It is on public policy

grounds, as reflected in our opinion in Gulf Coast Indus. Workers

Union v. Exxon Corporation, 

, 248-55 (5th Cir.), cert.

denied, --- U.S. ----, 

, 

(1993), that

we scrutinize the arbitrator's award in this case.

                                     III

     In this respect, Exxon argues that the arbitrator's award

violates public policy because it orders reinstatement of "a

cocaine user and convicted drug dealer to a highly safety-sensitive

job."3 Exxon contends that well-defined public policy, articulated

by this court in Gulf Coast Indus. Workers, prohibits the return of

drug users to jobs that pose a threat to the safety of other

workers and/or the general public.         It argues that allowing the

arbitration award to stand, whether it involves reinstatement or

merely payment of back pay, undermines the public policy against

the use, possession, or positive testing for alcohol or drugs in

the workplace.

     The Union effectively counters that the order of reinstatement

is moot; it only seeks enforcement of the arbitrator's alternative

award limited to back pay.      The Union admits that a public policy

against   drug   use   in   safety   sensitive   positions   exists;   it


     3
      Exxon also argued in its brief that the award did not "draw
its essence from the contract" because it conflicted with three
previous arbitration awards interpreting Exxon's alcohol and drug
use policy and the Contract. Exxon contends that the arbitrator
exceeded his authority under that section of the Contract that
provided that the arbitrator must give prior awards res judicata
effect. Because we find in Exxon's favor relative to its first
argument, we need not reach the second.

                                      8
contends, however, that that public policy is not at issue in this

case because of the impossibility of reinstating Chube to his prior

position.   Generally adopting this view of the case, the district

court observed that the arbitrator would have erred if it had

actually required Exxon to reinstate Chube, but agreed with the

Union that Chube was not available for reinstatement, and that that

portion of the award was therefore immaterial to the appeal.

                                        IV

     We begin our public policy analysis with an examination of

W.R. Grace, in which the Supreme Court clearly articulated the

public   policy    standard.      In    that      case    an   employer   signed   a

conciliation      agreement    with    the    Equal      Employment   Opportunity

Commission ("EEOC").     The agreement conflicted with the collective

bargaining agreement because it rescinded certain provisions of the

bargained-for      seniority    system       to   allow    advancement    of   some

minorities, which prompted adversely affected employees to file

grievances.       Ultimately, the Supreme Court was called upon to

determine     whether   the     collective         bargaining      agreement    was

unenforceable as violative of public policy.                   The court began by

observing that a collective bargaining agreement is a contract,

and, "as with any contract, a court may not enforce a collective

bargaining agreement that is contrary to public policy."                       W.R.

, 103 S.Ct. at 2183.                 The Court stated:

     If the contract as interpreted by [the arbitrator] violates
     some explicit public policy, we are obliged to refrain from
     enforcing it. Such a public policy, however, must be well
     defined and dominant, and is to be ascertained "by reference
     to the laws and legal precedents and not from general
     considerations of supposed public interests."

                                         9


     The Court concluded that the company's

voluntary commitment to two conflicting contractual obligations was

a dilemma of its own making, and that enforcement of the collective

bargaining agreement in the employees' favor violated no explicit

public policy.

     Four   years   later,   in   Misco,    a    paper   plant   employee   was

discharged after police apprehended him in a co-worker's car that

was filled with marihuana smoke.           The company asserted that the

employee's action violated its rule against having an illegal

substance on company property.       The arbitrator upheld the union's

grievance and ordered the employee reinstated, and the company

filed suit to have the award vacated.           The district court set aside

the award on public policy grounds.               A panel of this circuit

affirmed, articulating the policy as "one against the operation of

dangerous machinery by persons under the influence of drugs or

alcohol."   Misco Inc. v. United Paperworkers International Union,

AFL-CIO, 

, 743 (5th Cir.1985).

     The Supreme Court reversed, holding that we had not followed

W.R. Grace 's command to identify with specificity the existing

laws and legal precedents underlying our public policy decision.

The Court reiterated its holding from W.R. Grace that allowing

public policy to bar the enforcement of an arbitrator's award is

little more than "a specific application of the more general

doctrine, rooted in the common law, that a court may refuse to

enforce contracts that violate law or public policy."              

, 108 S.Ct. at 373.       As we observed in Gulf Coast,


                                    10
      The Supreme Court re-emphasized in Misco that, when applying
      the narrow public policy exception, courts are forbidden to
      use imprecise notions of public policy which would allow
      ill-defined considerations to negate the rule favoring
      judicial deference. "At the very least," wrote Justice White,
      "an alleged public policy must be properly framed under the
      approach set out in W.R. Grace, and the violation of such a
      policy must be clearly shown if an award is not to be
      

, 108 S.Ct. at 373.

Gulf Coast Indus. Workers 

.

      In Gulf Coast, our definitive post-Misco case, we again

applied the public policy exception to bar enforcement of an

otherwise valid arbitrator's award.                    Exxon discharged an employee

for violating its Alcohol and Drug Use Policy and for breaching an

employee    after-care       agreement.           The    Union       filed   a    grievance

contesting the termination, and the arbitrator held that summary

discharge      was    unjustified      and       too    harsh    a     penalty     for   the

employee's violations.           The arbitrator directed Exxon to reinstate

Woods to his previous job without backpay, contingent upon a

negative drug and alcohol screen.                 After the Union instituted suit

to    enforce    the      award,    the     district          court     granted    Exxon's

cross-motion for summary judgment, and vacated the arbitration

award.

      On appeal, we reviewed applicable law, including W.R. Grace

and   Misco.         We   recognized       that    the       district    court     had    not

"ground[ed] its decision upon an articulated review of laws and

legal    precedents       that     frown    upon       the    reinstatement        of    such

employees."      Gulf 

.                         We noted that the

district court had applied a "common sense public policy approach,"

and explained that we may not "use imprecise notions of public


                                            11
policy which would allow ill-defined considerations to negate the

rule favoring judicial deference."                     

        We nevertheless

affirmed vacating the arbitrator's award, holding "that it offends

public     policy     for      Woods,        an        employee       who      occupies    a

safety-sensitive position, to retain his job upon testing positive

for   cocaine     while   on   the     job       and    after       having    breached    his

company's drug abuse policy on two occasions—first when he broke

his pledge of abstinence, and second when he failed to disclose his

relapse."    

our holding by noting that "[t]here

are   countless     statutes,        regulations,         company          guidelines,    and

judicial decisions that pronounce the emphatic national desire to

eradicate illicit drugs from the workplace."                         

the Supreme Court has recognized a public policy

against    drug    use    in   the    workplace          (in    a    slightly    different

context), stating that the government has a strong interest in

preventing employees "from using alcohol or drugs while on duty" to

ensure the safety of the public and the employees.                              Skinner v.

Railway Labor Executives Ass'n, 

, 621, 

,

1415, 

(1989) (holding, in context of challenge to

Federal Railroad Administration drug and alcohol testing rules,

that such tests were reasonable under the Fourth Amendment even

though there was no requirement of warrant or reasonable suspicion,

because of compelling government interest).

                                             V

         Thus, we come to the question of whether, notwithstanding

Exxon's clear breach of the collective bargaining agreement, we


                                             12
will   deny    enforcement    of    the     arbitrator's       award   under   the

circumstances of this case.          The Union makes a forceful argument

that the case at bar must be distinguished from Gulf Coast, because

the Union seeks only to enforce an award of back pay to Chube—an

award that cannot be said to contain the element of endangerment

that underlay our decision in Gulf Coast.                  In this case, the

arbitrator heeded the admonition in our caselaw that such an order

would violate public policy, and consequently crafted its order so

that Chube     would   not   be    placed    back   into   a    safety-sensitive

position.     This distinction, the Union argues, in combination with

Misco 's requirement of a hands-off approach to a review of an

arbitrator's award, is sufficient to warrant affirmation of the

arbitrator's award.

       After thorough consideration of this argument, we cannot

agree.    It is undisputed that Chube occupied a safety-sensitive

position.     It is also undisputed that Chube tested positive for

cocaine use while occupying that position, and thereby endangered

the safety of other employees.            We think that the public policy

exception articulated in Gulf Coast must be read not only to

prohibit the prospective placement of an employee into a position

where he is a danger to his company and to fellow employees (i.e.,

order of reinstatement into a safety-sensitive position), but also

to prohibit a retrospective approval of the conduct that created

the unsafe situation in the first place (i.e., order of back pay or

reinstatement into the job the employee held before promotion to a

safety-sensitive position).           In addition to addressing future


                                       13
conduct, the public policy against drug use in safety-sensitive

positions also must look back to the conduct that is the subject of

the grievance.      The policy looks to the future to ensure safety,

but looks back to deny condonation of misconduct.

     We think that the public policy against drug use in safety

sensitive positions that we enunciated in Gulf Coast would be

weakened by the arbitrator's order in this case.           It suggests to

the drug user in a safety-sensitive position that the maximum

penalty that he might incur would either be reinstatement to his

position prior to assuming the safety-sensitive duties, or, if

reinstatement were impossible, back pay at the rate of his former

position.    Such a suggestion is consistent neither with the public

policy we articulated in Gulf Coast, nor the statutes, regulations,

and case law we cited in support of that public policy.             In Gulf

Coast, we highlighted the various legal sources reflecting our

nation's    "well   defined   and   dominant"   desire   for   a   drug-free

society.    We cited federal statutes,4 state statutes,5 and various

regulations.     We also relied on previous case law that condemned


     4
      Federal authority included the 1988 Drug-Free Workplace
Act, 41 U.S.C. §§ 701-707, Defense Department regulations
mandating a drug-free workplace (48 C.F.R. 223.5 (1992)), and the
Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, which
affirmatively excludes from protection persons who are using
drugs. The defendant in the Gulf Coast case, as in the case at
bar, was Exxon. Obviously, the same statutes continue to apply
to Exxon.
     5
      We note that the State of Louisiana has adopted drug
testing procedures and standards to be used by Louisiana
businesses, further evidencing the clear public policy against
drug use in that state. See La.Rev.Stat. Ann. §§ 49:1001-1015
(West Supp.1995).

                                     14
the presence of drugs in the workplace,6 and that noted the dangers

associated with petro-chemical refineries.7 In reviewing the legal

sources we identified in Gulf Coast, we entertain no doubts that

each of these bases is equally relevant to the case before us

today.

                                VI

     We recognize that, under Misco, it is the rare case where

public policy trumps the terms of a bargained-for agreement between

a union and a corporation.8      We conclude, however, that the

arbitrator's award and remedy under the facts of this case—ordering

reinstatement of or monetary award to an employee who, while

working in a safety-sensitive position, tested positive for the use

of drugs—violate well-established public policy against the use of

drugs by employees in safety-sensitive positions.     We therefore

REVERSE the arbitrator's award in favor of Donald Chube, and RENDER


     6
      See, e.g., Oil Workers Loc. 4-228 v. Union Oil Co. of Cal.,

, 442 (5th Cir.1987) (recognizing this Circuit's
strong public policy against operation of dangerous machinery by
persons using drugs or alcohol).
     7
      See, e.g., Union 

, 441 n. 3 (affirming
arbitrator's emphasis on "the danger inherent in the oil refinery
work environment" where "fires and explosions often occur ...
with calamitous and costly results").
     8
      We are not unmindful of certain inequities, as between the
company and the Union, that arise here: the Union has incurred
significant expense in defending its contractual position—a
position that has been upheld. The company, on the other hand,
who has been held to have breached the contract, receives the
benefit of incurring no monetary liability. We apply the public
policy exception here only because we are absolutely convinced
that public policy, as reflected in the body of this opinion,
does not permit the grievant in this case to receive any monetary
award.

                                15
judgment in favor of Exxon Corporation.

     REVERSED and RENDERED.




                               16