Judge Henley died on October 18, 1997. 1

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3673

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Alvey, Incorporated, *

*

 Plaintiff - Appellant, *

 * Appeal from the United

States

 v. * District Court for the

 * Eastern District of Missouri.

Teamsters Local Union No. 688, *

*

 Defendant - Appellee. *

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Submitted: May 23, 1997

 Filed: December 29,

1997

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Before BEAM, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN, 1

Circuit Judge.

___________

LOKEN, Circuit Judge.

Alvey, Incorporated, appeals the district court’s grant of summary

judgment refusing to vacate a labor arbitration award in favor of Dewey

Bounds, a discharged Alvey employee. Concluding that the arbitrator’s

award does not draw its essence from the collective bargaining agreement

in one important respect, we reverse.
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On October 10, 1994, a Florissant, Missouri, narcotics detective

received an anonymous tip that Bounds was “dealing or having drugs” at

Alvey's nearby plant. The tipster said that Bounds carried a vial of

cocaine to and from work each day in a black satchel. He also described

Bounds, a very large man, and the car he drove to work. After learning

that Bounds had an outstanding assault warrant, police went to the Alvey

plant, located a car of that description, waited until Bounds emerged and

carried a black satchel to the car, and stopped Bounds as he drove away

from the plant. An immediate search of the black satchel uncovered a vial

with an attached spoon, a device commonly used for ingesting cocaine.

Inside the vial were traces of a white grainy substance later determined

to be cocaine. Bounds was arrested for drug possession and later charged

with possession of drug paraphernalia (the vial). In January 1995,

following a bench trial, Bounds was found guilty of that charge in the

Circuit Court of St. Louis County. The trial judge suspended imposition

of sentence and placed Bounds on two years probation.

Alvey suspended Bounds promptly after his October arrest on drug

charges. On November 4, Alvey discharged Bounds for violating Rule 30 of

the Alvey Plant Rules, which prohibits “[u]se or possession of intoxicating

beverages or narcotics on plant premises or working under the influence of

either.” Bounds filed a grievance under the collective bargaining

agreement between Alvey and Local 688 of the Teamsters Union. Alvey denied

the grievance, and the Union took the dispute to binding arbitration as

provided in the agreement. The parties chose an arbitrator who held a

hearing in March 1995, the issue being whether Alvey terminated Bounds for

"just cause."

At the hearing, the decision of the criminal court was admitted into

evidence, and two police officers testified that after his arrest Bounds

admitted the vial was his but accused his ex-wife of putting it in the

satchel. Bounds denied making that admission and testified that the vial

was not his, he had never seen it, his practice was to leave the satchel

open and accessible at the Alvey plant, and numerous co-workers often went

in the bag to get items such as aspirin and toothpicks. 

The arbitrator issued his decision in June 1995, sustaining the

grievance and ordering Bounds reinstated with full back pay and no loss of

seniority. Though Alvey proved that a vial containing cocaine was in

Bounds’s satchel at Alvey’s plant, the arbitrator construed the word

“possession” in Plant Rule 30 as requiring proof that Bounds knowingly

possessed cocaine on company premises. Speculating that someone might have

planted the vial in the satchel while Bounds was working, the arbitrator

concluded that Alvey failed to prove just cause for discharge because there
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was “sufficient doubt” that Bounds knowingly possessed cocaine on company

premises. Alvey then filed this action seeking to vacate the arbitrator's

award, and the parties filed cross motions for summary judgment on the

arbitration record. 

I.

The district court correctly defined the narrow scope of judicial

review that applies in reviewing arbitration awards under collective

bargaining agreements: 

The courts are not authorized to reconsider the merits of an

award even though the parties may allege that the award rests

on errors of fact or on misinterpretation of the contract. . .

. As long as the arbitrator’s award “draws its essence from the

collective bargaining agreement,” and is not merely “his own

brand of industrial justice,” the award is legitimate.

International Woodworkers of Amer. v. Weyerhaeuser Co., 7 F.3d 133, 135

(8th Cir. 1993), quoting United Paperworkers Int'l Union v. Misco, Inc.,

484 U.S. 29, 36 (1987), and United Steelworkers of Amer. v. Enterprise

Wheel & Car Corp., 363 U.S. 593, 597 (1960). Applying that standard of

review, we agree with the district court’s resolution of all but one of the

issues Alvey raises on appeal. 

1. First, Alvey argues that the arbitrator impermissibly modified the

collective bargaining agreement because Plant Rule 30 contains no

requirement that the possession of illegal narcotics at work be knowing.

Therefore, Alvey contends, there 
Article 6 of the collective bargaining agreement provides that Alvey retains the 2

right "to make and apply reasonable rules and regulations concerning conduct, safety

and the operation of the business," such as Plant Rule 30. But Article 17.1 of the

agreement provides that “[n]o employee will be discharged without just cause.”

“Harmonizing these discordant provisions was clearly a matter for the arbitrator and

was well within his authority.” Local 238 Int’l Bhd. of Teamsters v. Cargill, Inc., 66

F.3d 988, 990 (8th Cir. 1995).

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was just cause to discharge Bounds for possession of the cocaine found in

a satchel he was taking away from Alvey’s plant. Like the district court,

we disagree. Plant Rule 30 uses an ambiguous term, "possession," without

defining it. Thus, the arbitrator was required to define that word as used

in a Plant Rule the violation of which would provide just cause for

terminating an employee. It is the arbitrator’s function to interpret a 2

collective bargaining agreement; "the parties having authorized the

arbitrator to give meaning to the language of the agreement, a court should

not reject an award on the ground that the arbitrator misread the

contract.” Misco, 484 U.S. at 38.

2. Alvey next argues that the arbitrator’s decision was arbitrary and

capricious because it required Alvey to prove Bounds guilty of violating

Plant Rule 30 beyond a "sufficient doubt." Alvey relies on Square Plus

Operating Corp. v. Local Union No. 917, 1992 WL 116610 (S.D.N.Y. May 15,

1992), in which the court vacated an award because the arbitrator required

the employer to prove employee wrongdoing "beyond a reasonable doubt," a

criminal law standard of proof. Contra, Amalgamated Meat Cutters v.

Neuhoff Bros. Packers, Inc., 481 F.2d 817, 819-20 (5th Cir. 1973). Here,

on the other hand, the arbitrator expressly stated he was not applying the

"beyond a reasonable doubt" standard of proof. 

We reject the “arbitrary and capricious” standard of review urged by

Alvey. That standard governs appeals under the Administrative Procedure

Act, see 5 U.S.C. § 706(2)(A), not the Federal Arbitration Act, see 9

U.S.C. § 10. Unless there is specific controlling language in the

collective bargaining agreement, we agree with the

Eleventh Circuit that “[a]n arbitrator’s decision allocating the burden of

proof among the parties or in fixing the legal framework for evaluation of

a grievance ordinarily cannot be reviewed in federal court.” Sullivan,

Long & Hagerty, Inc. v. Local 559 Laborers’ Int’l Union, 980 F.2d 1424,

1429 (11th Cir. 1993). Thus, the award may not be vacated on this ground.
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3. Alvey further argues that the award must be vacated because it

conflicts with a “well defined and dominant” public policy. See W.R. Grace

& Co. v. Local Union 159, Int'l Union of the United Rubber Workers, 461

U.S. 757, 766 (1983). Alvey correctly notes that the public policy

prohibiting illegal drugs in the workplace is reflected in countless

judicial decisions and numerous state and federal statutes and regulations,

such as the Drug Free Workplace Act of 1988, 41 U.S.C. §§ 701-07. However,

in Misco the Supreme Court explained that W.R. Grace does not “sanction a

broad judicial power to set aside arbitration awards as against public

policy.” To be vacated on this ground, an award must conflict with

specific laws or legal precedents, not general policy considerations, “and

the violation of such a policy must be clearly shown.” 484 U.S. at 43.

In this case, as the district court noted, the arbitrator concluded

there was no just cause to discharge Bounds because Alvey failed to prove

he knowingly possessed cocaine at work. Given the arbitrator’s view of the

facts -- which we may not disturb -- his award does no clear violence to

the public policy on which Alvey relies. Alvey’s reliance on Exxon Corp.

v. Baton Rouge Oil & Chemical Workers Union, 77 F.3d 850 (5th Cir. 1996),

and Gulf Coast Indus. Workers Union v. Exxon Co., 991 F.2d 244 (5th Cir.),

cert. denied, 510 U.S. 965 (1993), is misplaced. In those cases the

arbitrator specifically found that the discharged employee violated the

employer’s work rule regarding drug use or possession. Of course, other

arbitrators might agree with Alvey that discharge in this case was

appropriate because strict enforcement of such work rules will encourage

employees to comply and help ensure drug free workplaces. But since the

award does not clearly violate that public policy, Misco teaches that we

must
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defer, even if reluctantly, to the arbitrator’s view of whether a

particular employee discipline furthers that policy. See 484 U.S. at 45.

II.

For the foregoing reasons, the arbitrator’s decision that Alvey had

no just cause to discharge Bounds in November 1994 for violating Plant Rule

30 must be upheld. However, rather than end the case, this conclusion

brings us to the issue on which we part company with the arbitrator’s

analysis. In addition to Plant Rule 30, Alvey’s drug policies include a

February 1992 memorandum to all employees concerning the Drug Free

Workplace Act. Part 4 of this policy, entitled Disciplinary Action,

provides in relevant part: 

B. Upon any . . . criminal drug statute conviction for a

violation occurring either in or outside the workplace, the

employee will be subject to disciplinary action at the sole

discretion of the company, up to and including discharge,

depending upon the circumstances.

 (Emphasis added.) This policy was made part of the arbitration hearing

record, and the Union apparently concedes that it is a work rule within

Alvey’s management rights as defined in Article 6 of the collective

bargaining agreement. See note 2, supra. The arbitrator nonetheless

summarily refused to consider this policy because: 

The Employer’s proof shows that [the state court] suspended the

imposition of sentence. As of this writing, a suspended

imposition of sentence is not a conviction. Yale v. City of

Independence, 846 S.W.2d 193 (Mo. 1993). 

The district court agreed with this reasoning, adding that “the Missouri

Supreme Court has reaffirmed its position that a suspended imposition of

sentence is not a conviction under Missouri law. M.A.B. v. Nicely, 909

S.W.2d 669, 671 (Mo. en banc 1995).”
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On appeal, Alvey renews its contention that the arbitrator impermissibly

substituted his discretion for that of the company in interpreting and

applying Alvey's work rules. To the limited extent that the arbitrator

failed properly to consider the applicability of Section 4.B., we agree.

The Missouri cases cited by the arbitrator and by the district court

construed the technical term “conviction” under Missouri criminal law and

then applied that construction to a witness impeachment statute and a

public employer’s manual. Those decisions do not resolve this case. The

issue here is the intended meaning of the word “conviction” in Section 4.B.

of Alvey’s work rule implementing the Drug Free Workplace Act. The

arbitrator wholly ignored that issue. Instead of looking at the word in

context, taking into account its ordinary meaning and any pertinent plant

practices or history, the arbitrator adopted his own, hyper-technical

meaning derived from a contextually inapposite source in state law. The

result of this misguided approach is a highly suspect conclusion. Although

our views on the question are of course not controlling, we think it

strains credulity to posit that an employer who defines drug-offenseswarranting-discharge to include “a criminal drug statute conviction” would

intend to exclude from that category criminal trials that end in findings

of guilt and sentences of probation plus the deferred imposition of a more

punitive sentence.

At this point, we return to the governing standard of review, whether

the arbitrator’s award “dr[e]w its essence from the collective bargaining

agreement.” Is the flaw we have identified simply a mistaken

interpretation of the contract that we must uphold, or does it violate the

fundamental principle that “an arbitrator is confined to interpretation and

application of the collective bargaining agreement; he does not sit to

dispense his own brand of industrial justice”? Enterprise Wheel, 363 U.S.

at 597. Although the issue is not free from doubt, we conclude it is the

latter. An arbitrator may look to outside sources to aid in interpreting

a collective bargaining agreement, but he must construe the contract; he

may not amend it. See Keebler Co. v. Milk Drivers
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Union, Local No. 471, 80 F.3d 284, 288 (8th Cir. 1996); Timken Co. v. Local

Union No. 1123, United Steelworkers of Amer., 482 F.2d 1012, 1015 (6th Cir.

1973). Here, the arbitrator effectively wrote a relevant work rule out of

the agreement by looking exclusively at an inconclusive outside source.

This part of the arbitrator’s award cannot be said to draw its essence from

the collective bargaining agreement. See Trailways Lines, Inc. v.

Trailways, Inc. Joint Council, 807 F.2d 1416, 1424 (8th Cir. 1986); cf.

International Woodworkers v. Weyerhaeuser, 7 F.3d at 136.

Finally, we must consider the impact of this limited error on the

arbitrator’s overall award. Alvey discharged Bounds for violating Plant

Rule 30, not Section 4.B. of the Drug Free Workplace Act policy. Indeed,

Bounds’s criminal “conviction” did not occur until two months after

discharge. The award of back pay for the pre-conviction period must be

upheld. But the award of reinstatement and additional back pay must be

based upon a valid application of Section 4.B. As retired Justice Potter

Stewart explained, sitting by designation in National Post Office

Mailhandlers Union v. United States Postal Service, 751 F.2d 834, 844 (6th

Cir. 1985), “Certainly the [employer] cannot now be ordered to reinstate

an employee convicted of a crime which by binding arbitration has been

determined to constitute just cause for discharge.” In this case, the

arbitrator failed to determine whether the post-discharge conviction

constitutes just cause for discharge. Thus, further proceedings are needed

to determine whether Section 4.B. applies and, if so, its impact on the

remedy to which Bounds is entitled. Accordingly, the judgment of the

district court is reversed and the case is remanded with directions to

remand for further arbitration proceedings not inconsistent with this

opinion. See Misco, 484 U.S. at 41-42 & n.10.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.