                         United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 96-3673
                                   ___________



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.                     *
                                 ___________

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

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




       1
         Judge Henley died on October 18, 1997.
      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

                                    -2-
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




                                    -3-
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.2 It is the arbitrator’s function to interpret a
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.




      2
        Article 6 of the collective bargaining agreement provides that Alvey retains the
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).
                                          -4-
      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




                                    -5-
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).”




                                    -6-
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-offenses-
warranting-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




                                    -7-
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.




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