## Judge Henley died on October 18, 1997. 1 United States Court of Appeals F OR T HE E IGHTH C IRCUIT

___________ No. 96-3673

___________

Alvey, Incorporated, *
* Plaintiff - Appellant, * * Appeal from the Unite d States v. * District Court for the * Eastern District of Missouri. Teamsters Local Union No. 688, *
* Defendant - Appellee. *

___________ Submitted: May 23, 1997 Filed: December 29, 1997

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

___________ LOKEN, Circuit Judge.

Al vey, Incorporated, appeals the district court’s grant of summar y judgment refusing to vacate a labor arbitration award in favor of Dewe y 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.

### -2- On Octo ber 10, 1994, a Florissant, Missouri, narcotics detectiv e received an anonymous tip that Bounds was “dealing or having drugs” a t Alvey' s nearby plant. The tipster said that Bounds carried a vial o f cocaine to and from work each day in a black satchel. He also describe d Bounds , a very large man, and the car he drove to work. After learnin g that Bound s had an outstanding assault warrant, police went to the Alve y 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 awa y from the plant. An immediate sea rch of the black satchel uncovered a vial wi than attached spoon, a device commonly used for ingesting cocaine

. Inside the vial were traces of a white grainy substance later determine d to be cocaine. Bounds was arrested for drug possession and later charged with p ossession of drug paraphernalia (the vial). In January 1995 , fol lowing a bench trial, Bounds was found guilty of that charge in th e Circuit Co urt of St. Louis County. The trial judge suspended impositio n of sentence and placed Bounds on two years probation.
Alvey suspended Bounds promptly after his October arrest on dru g charges. On November 4, Alvey d ischarged Bounds for violating Rule 30 of the Alvey Plant Rules, which prohibits “[u]se or possession of intoxicating beverages or narcotics on plant p remises or working under the influence of eit her.” Bounds filed a grievance under the collective bargainin g agreement between Alvey and Local 688 of the Teamsters Union . Alvey denied the grievance, and the Union took the dispute to binding arbitration a s pro vided 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 d ecision of the criminal court was admitted into evidence, and two police officers testified that after his arrest Bound s admitted t he vial was his but accused his ex-wife of putting it in th e satche l. Bounds denied making that admission and testified that the vial
was not his, he had never seen it, his practice was to leave the satche l 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 ar bitrator issued his decision in June 1995, sustaining th e grievance and ordering Bounds rei nstated with full back pay and no loss of
sen iority. Though Alvey proved that a vial containing cocaine was i n Bou nds’s satchel at Alvey’s plant, the arbitrator construed the wor d “poss ession” in Plant Rule 30 as requiring proof that Bounds knowingl y possessed cocaine on company premises. Speculating that som eone might have planted th e vial in the satchel while Bounds was working, the arbitrato r concluded that Alvey failed to prove just cause for discharg e because there

### -3-

was “s ufficient doubt” that Bounds knowingly possessed cocaine on company premises. Alvey then filed this action seeking to vacate the arbitrator's award, an d the parties filed cross motions for summary judgment on th e arbitration record.

I.

The di strict court correctly defined the narrow scope of judicia l review that applies in reviewing arbitration awards under collectiv e bargaining agreements:

The c ourts are not authorized to reconsider the merits of a n award ev en though the parties may allege that the award rest s on errors of fact or on misinterpretation of the contract. . . . As long as the arbitrator’s award “draws its essence from th e colle ctive bargaining agreement,” and is not merely “his ow n brand of industrial justice,” the award is legitimate.

Internat ional Woodworkers of Amer. v. Weyerhaeuser Co. , 7 F.3d 133, 13 5 (8th Cir. 1993), quoting United Paperworkers Int'l Union v. Misco, Inc. , 484 U.S. 29, 36 (1987), and United Steelworkers of Amer. v. Enterpris e Wheel & C ar Corp. , 363 U.S. 593, 597 (1960). Applying that standard o f 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 th e co llective bargaining agreement because Plant Rule 30 contains n o requirement that the possession of illegal narcotics at work be knowing

. Therefore, Alvey contends, there

## Article 6 of the collective b argaining agreement provides that Alvey retains the 2 

## righ t "to make and apply reasonable rules and regulations concerning conduct, safety andthe operati on of the business," such as Plant Rule 30. But Article 17.1 of th e agreem ent

provides that “[n]o employee will be discharged without just cause. ” “Harmonizing these discordant provisions was clearly a matter for the arbitrator an d
was w ell within his authority.” Local 238 Int’l Bhd. of Teamsters v. Cargill, Inc. , 66 F.3d 988, 990 (8th Cir. 1995).
-4- was ju st 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 dis agree. Plant Rule 30 uses an ambiguous term, "possession," without defining it. Thus, the arbitrator was required to define that word as used ina Plant Rule the violation of which would provide just cause fo r terminating an employee. It is the arbitrator’s function to interpret a 2
co llective bargaining agreement; "the parties having authorized th e arbitrator to give meaning to the language of the agreement, a court should not reject an award on the ground that the arbitrator misread th e contract.” Misco , 484 U.S. at 38.

2. Alvey next argues that the arbitrator’s decision was arbitrary an d capricious because it required Alvey to prove Bounds guilty of violatin g Plant Rule 30 beyond a "sufficient doubt." Alvey relies on Square Plu s Operating Corp. v. Local Union No. 917 , 1992 WL 116610 (S.D.N.Y. May 15 , 1992), in which the court vacatedan 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

. Neuhof f 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 “arbitr ary and capricious” standard of review urged by Alv ey. That standard governs appeals under the Administrative Procedur e Act, s ee 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 th e collective bargaining agreement, we agree with the Eleventh Circuit that “[a]n arbit rator’s decision allocating the burden of proof among the parties or in fix ing the legal framework for evaluation of
a grieva nce 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.

### -5- 3. Alvey further argues that the award must be vacated because i t 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 , 46 1 U. S. 757, 766 (1983). Alvey correctly notes that the public polic y pro hibiting illegal drugs in the workplace is reflected in countles s judicial decisions and numerous state and federal statutes a nd regulations, such as the Drug Free Workplace Act of 1988, 41 U.S.C. §§ 70 1-07. However, in Mis co the Supreme Court explained that W.R. Grace does not “sanction a broad judicial power to set aside arbitration awards as against publi c policy.” To be vacated on this ground, an award must conflict wit h specific laws or legal precedents , not general policy considerations, “and the vio lation of such a policy must be clearly shown.” 484 U.S. at 43.

Inthis 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 arbitrato r’s view of the facts - - which we may not disturb -- his award does no clear violence t o the public policy on which Alvey relies. Alvey’s reliance on Exxon Corp. v. Bat on Rouge Oil & Chemical Workers Union , 77 F.3d 850 (5th Cir. 1996), and Gulf Coast Indus. Workers Uni on v. Exxon Co. , 991 F.2d 244 (5th Cir.), cert. den ied , 510 U.S. 965 (1993), is misplaced. In those cases th e arbitrator specifically found that the discharged employee violated th e employer’s work rule regarding drug use or possession. Of course, othe r arb itrators might agree with Alvey that discharge in this case wa s app ropriate because strict enforcement of such work rules will encourag e employees to comply and help ensure drug free workplaces. But since th e award does not clearly violate that public policy, Misco teaches that w e must

### -6-

defer, even if reluctantly, to the arbitrator’s view of whether a partic ular 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 viola ting Plant Rule 30 must be upheld. However, rather than end the case, this conclusio n 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 Feb ruary1992 memorandum to all employees concerning the Drug Fre e Workplace Act. Part 4 of this policy, entitled Disciplinary Action , provides in relevant part:

B. Up on any . . . criminal drug statute convictionfor a violationoccurring either in or outside the workplace, th e employee will be subject to disciplinary action at the sol e discre tionof the company, up to and including discharge , depending upon the circumstances.
(Emphasi s added.) This policy was made part of the arbitration hearin g record, and the Union apparently concedes that it is a work rule withi n Alvey’ s management rights as defined in Article 6 of the collectiv e ba rgaining agreement. See note 2, supra . The arbitrator nonetheles s summarily refused to consider this policy because:
The Employer’s proof shows that [the state court] suspended the impositionof sentence. As of this writing, a suspende d imposition of sentence is not a conviction. Yale v. City o f Independence , 846 S.W.2d 193 (Mo. 1993).

The district court agreed with this reasoning, adding that “the Missour i Supreme Court has reaffirmed its position that a suspended imposition o f sentence is not a conviction under Missouri law. M.A.B. v. Nicely , 90 9 S.W.2d 669, 671 (Mo. en banc 1995).”

### -7-

On appeal, Alvey renews its contention that the arbitrator impermissibl y subst itutedhis discretion for that of the company in interpreting an d appl ying Alvey's work rules. To the limited extent that the arbitrato r failed properly to consider the applicability of Section 4.B., we agree

.

The Missouri cases ci ted by the arbitrator and by the district court constr ued the technical term “conviction” under Missouri criminal law and th enapplied 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 intendedmeaning of the word “conviction” in Section 4.B. of Alvey’s work rule implementing the Drug Free Workplace Act. Th e arbitrato r wholly ignored that issue. Instead of looking at the word i n contex t, taking into account its ordinary meaning and any pertinent plant practi ces or history, the arbitrator adopted his own, hyper-technica l meaning de rived from a contextually inapposite source in state law. Th e result of this misguided approach is a highly suspect conclu sion. Although
our views on the question are of course not controlling, we think i t str ains credulity to posit that an employer who defines drug-offenses

warranting-discharge to include “ a criminal drug statute conviction” would intendto exclude from that category criminal trials that end in findings of guilt and sentences of probati on plus the deferred imposition of a more punitive sentence.
At this point, we return to the governing standa rd of review, whether the ar bitrator’s award “dr[e]w its essence from the collective bargaining agreemen t.” Is the flaw we have identified simply a mistake n interpretation of the contract th at we must uphold, or does it violate the fundamental principle that “an arbitrator is confined to int erpretation and appli cationof the collective bargaining agreement; he does not sit t o dispense his own brand of industr ial 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; h e may not amend it. See Keebler Co. v. Milk Drivers

### -8-

Union, Local No. 471 , 80 F.3d 284, 288 (8th Cir. 1996); Timk en Co. v. Local Union No. 1123, United Steelworkers of Amer. , 482 F.2d 1012, 1015 (6th Cir. 1973). Here, the arbitrator effe ctively 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 i ts essence from the collective bargaining agreement. See Trailways Lines, Inc. v

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

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

Final ly, we must consider the impact of this limited error on th e arb itrator’s overall award. Alvey discharged Bounds for violating Plan t Rule 3 0, not Section 4.B. of the Drug Free Workplace Act policy. Indeed, Bou nds’s criminal “conviction” did not occur until two months afte r discharge. The award of back pay for the pre-conviction period must b e upheld. But the award of reinstatement and additional back pay must b e based upon a valid application of Section 4.B. As retired Justice Potter St ewart explained, sitting by designation in National Post Offic e Mailhandlers Union v. United Stat es Postal Service , 751 F.2d 834, 844 (6th Cir. 1985), “Certainly the [employer] cannot now be ordered to reinstat e an employ ee convicted of a crime which by binding arbitration has bee n determine dto constitute just cause for discharge.” In this case, th e arb itrator failed to determine whether the post-discharge convictio n constitutes just cause for discharge. Thus, further proceed ings are needed to determine whether Section 4.B. applies and, if so, its impact on th e rem edyto which Bounds is entitled. Accordingly, the judgment of th e district court is reversed and the case is remanded with directions t o remand for further arbitration proceedings not inconsistent with thi s opinion. See Misco , 484 U.S. at 41-42 & n.10.

A true copy.

Attest:

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