
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-2241                                 EXXON CORPORATION,                                Plaintiff, Appellant,                                         v.                             ESSO WORKERS' UNION, INC.,                                Defendant, Appellee.                              _________________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Mark L. Wolf, U.S. District Judge]                              _________________________                                       Before                                Selya, Circuit Judge,                       Coffin and Cyr, Senior Circuit Judges.                              _________________________               Douglas                       B.                          Neagli, with whom Michael J. Liston, Glass, Seigle          & Liston,  Patrick J. Conlon,  and Joseph T.  Walsh, III were  on          brief, for appellant.               Warren M. Davison, Mark A. de Bernardo, Nancy N. Delogu, and          Littler, Mendelson, Fastiff, Tichy & Mathiason, P.C. on brief for          Institute for a Drug-Free Workplace, amicus curiae.               Nathan S. Paven, with whom Paven & Norton were on brief, for          appellee.                              _________________________                                    July 8, 1997                              _________________________                    SELYA, Circuit Judge.  This appeal tests the margins of          an             arbitrator's ability to order the reinstatement, into a safety-          sensitive                    job, of an employee who has failed a reliable drug test.          After painstaking reflection, we conclude that a well defined and          dominant                   public policy encourages employers to develop, establish,          and              enforce                      programs to prevent their employees from attempting to          perform  safety-sensitive  work  while  under  the  influence  of          narcotics                    or                      other                            intoxicants.  Moreover, once an employer has set          such a program in place, it countermands public policy if  courts          too readily  rescue employees  who fail  to satisfy  programmatic          standards from the  predictable consequences of such  violations.          Hewing to this line, we  refuse to enforce the arbitral award  of          which plaintiff-appellant Exxon Corporation (Exxon) complains.          I.  BACKGROUND                    The facts are essentially undisputed.  Exxon operates a          fuel terminal in Everett, Massachusetts and employs several truck          drivers to  supply  petroleum to  service stations  and  airports          throughout New England.  Exxon's nemesis, the Esso Workers' Union          (the Union),  appellee here,  represents most  of these  drivers.          Exxon                and                    the Union entered into a collective bargaining agreement          (the               CBA)                    in                      February                               1990.  The CBA establishes inter alia a five-          step               employee grievance procedure culminating in final and binding          arbitration.                    Part                         11                            of                              the                                  CBA                                      covers employee discipline.  Its first          section                  provides                          that                               Exxon "shall post a list of offenses which it          deems serious," and  its second section provides that Exxon  "may                                          2          discharge or  otherwise discipline"  any employee  who commits  a          posted  offense.   The second  section also  stipulates that  any          employee                   who                       believes his suspension or discharge is without "just          cause" may pursue a grievance.                    An                       appendix                                to                                  the                                      CBA                                          catalogs the posted offenses.  The          list includes the following:                    6.  Alcohol Beverage/Habit-Forming or Illegal                    Drug or Any Dangerous Substance                         a.  Being under the influence of an                         alcoholic  beverage   or  drug   on                         Company time or property.   Testing                         positive on a drug test or  refusal                         to submit to a drug test.                         b.  Bringing onto Company property,                         or possessing, or using on  Company                         time  or   Company   property,   an                         alcoholic  beverage,   illicit   or                         unprescribed controlled  substance,                         or                            any                                dangerous substance which the                         Company  believes  may  impair  the                         employee's  ability   to   properly                         perform  duties   in  a  safe   and                         responsible manner.                    Exxon                          has                              implemented                                         a                                           comprehensive drug-free workplace          program (the DFW program), embodied in a formal policy  statement          and the  aforementioned  list of  posted  offenses.   The  policy          statement declares in part:                    Exxon Corporation  is  committed to  a  safe,                    healthy,  and productive  workplace  for  all                    employees.   The Corporation recognizes  that                    alcohol, drug,  or other  substance abuse  by                    employees                              will impair their ability to perform                    properly                             and                                 will have serious adverse effects                    on                       the                           safety, efficiency, and productivity of                    other                          employees and the Corporation as a whole                    . . . .  Being unfit for work because of  use                    of                       drugs                             or                                alcohol is strictly prohibited and                    is grounds for termination of employment.                                          3          Exxon's program  is carefully tailored to  meet the goals of  the          Drug-Free                    Workplace                             Act                                 of 1988 (the DFW Act), 41 U.S.C. SS 701-707          (1994).   Exxon has  made the  program's terms  available to  all          employees; the program encourages employees voluntarily to report          drug  and alcohol  problems; and  the company  not only  provides          rehabilitative services to employees  who come forward, but  also          promises that "[n]o employee . . . will be terminated due to  the          request  for help  in overcoming  that dependency  or because  of          involvement in a rehabilitation effort."                    Exxon's program reflects the company's recognition that          drug use during the performance of safety-sensitive tasks poses a          significant                      threat to co-workers and to the public.  Therefore, it          subjects employees in these positions to random drug testing.  In          that regard, the program puts Exxon's work force on notice of the          company's intention to conduct "[u]nannounced periodic or  random          [drug]                 testing" of employees who are working in certain designated          safety-sensitive jobs.                    Albert                           A.                              Smith, a veteran Exxon employee, works in such          a            designated                       position.                                                                 He is responsible for loading, driving, and          unloading                    a                     five-axle                               tractor-trailer combination which, when fully          loaded,                  carries 12,000 gallons of highly flammable motor fuel.  He          typically  drives this  rig through  many of  New England's  more          densely populated  areas.   Exxon requires  employees who  occupy          designated                     safety-sensiti                                 ve positions   and Smith's is plainly such                                          4          a  position                                                     h           igned                 such                      a                       statement                                 in 1989, thereby attesting that he had read          and understood the parameters of Exxon's DFW program, that he was                     1    to sign so-called  compliance statements.   Smit          s          not abusing alcohol or drugs, and that he was amenable to  random          drug testing.                    On                       August                              21,                                 1990,                                       Smith reported for duty.  Without any          forewarning, Exxon  directed him  to  take a  drug test.    Smith          submitted to the test and apparently drove his regular route that          day.   The test  results were obtained  the following week;  they          revealed that Smith  had cocaine in his bloodstream when  tested.          Although the test results could not indicate when Smith had  used          the cocaine or whether he had performed his job while still under          its pernicious influence, Exxon decided that Smith posed a threat          to public safety and fired him.                    The  Union  grieved  Smith's  ouster.    The  grievance          culminated in arbitration.  The parties put two questions to  the          arbitrator:                                             (1)                          Did                              Exxon have just cause to discharge Smith?  (2)          If             not,                  what                       is the appropriate remedy?  In September of 1992, the          arbitrator found the results of the drug test to be reliable  but          nonetheless decided  that  Exxon  wrongfully  terminated  Smith's          employment.  The arbitrator acknowledged that Part 11 of the  CBA          gave Exxon the right  to discharge Smith for committing a  posted               1In an earlier, unrelated case which involved  a hauler who,          like Smith,  failed a random drug  test, we described a  somewhat          similar                  job                      as                        entailing                                  "work of a kind where, one suspects, there          might be old practitioners, and there might be bold practitioners                       but                there                      would likely be few (if any) old, bold practitioners."          Jackson  v. Liquid Carbonic  Corp., 863 F.2d  111, 112 (1st  Cir.          1988).                                          5          offense, but he reasoned that this right was subject to Part 11's          "just                cause"                       provision.  Concluding that dismissal was too extreme          a            punishment,                       the                           arbitrator settled upon a two-month suspension as          an appropriate  disciplinary measure, to  be followed by  Smith's          reinstatement if he passed a contemporaneous drug test.                    Exxon balked  at  the arbitrator's  award and  sued  in          federal district court to set it aside.  The parties  cross-moved          for summary judgment.  The lower court granted the Union's motion          and affirmed the arbitral award.  Unyielding in its commitment to          prevent Smith from getting behind the wheel of a petroleum truck,          Exxon  appeals.    Our  review  of  the  district  court's  legal          conclusions is plenary.  See Prudential-Bache Securities, Inc. v.          Tanner, 72 F.3d 234, 237 (1st Cir. 1995).          II.  PRINCIPLES AFFECTING JUDICIAL REVIEW                    Collective  bargaining   agreements  are  designed   to          memorialize the terms and conditions of employers'  relationships          with               their                    unionized                              employees.  These agreements typically contain          grievance  procedures that  designate  arbitration as  the  final          dispute-resolution mechanism.  "In  such cases . . . courts  play          only  a limited  role when  asked to  review the  decision of  an          arbitrator."  United Paperworkers Int'l Union v. Misco, Inc., 484          U.S. 29, 36 (1987).  In large part, that role is ordained  by the          fact   that  "[i]n   labor  arbitration,   matters  of   contract          interpretation  are  typically for  the  arbitrator,  not  for  a          reviewing  court."   El Dorado  Technical Servs.,  Inc. v.  Union          General De Trabajadores, 961 F.2d  317, 319 (1st Cir. 1992).   As                                          6          long as the arbitrator is arguably interpreting the CBA, a  court          cannot                 second-guess his decision.  See id. (citing Misco, 484 U.S.          at 38); Dorado Beach Hotel  Corp. v. Union De Trabajadores De  La          Industria                    Gastronomica,                                 Local 610, 959 F.2d 2, 3-4 (1st Cir. 1992).          In  such  purlieus,  a court's  task  ordinarily  is  limited  to          determining                      whether                             the                                 arbitrator's construction of the collective          bargaining agreement is to any extent plausible.  See Misco,  484          U.S. at 36-38.                    Policy                           spins                                 this                                     web                                         of                                            rules.  Judicial deference to an          arbitrator's                       contract                               interpretation furthers "[t]he federal policy          of  settling  labor disputes  by  arbitration  [which]  would  be          undermined                     if courts had the final say on the merits of [arbitral]          awards."                                       Uni                      ted Steelworkers v. Enterprise Wheel & Car Corp., 363          U.S.               593,                    596 (1960).  Through the medium of the CBA, the employer          and the union bargain for the arbitrator's interpretation, and  a          federal court must respect that bargain.  See W.R. Grace & Co. v.          Local Union 759, Int'l  Union of United Rubber Workers, 461  U.S.          757, 765 (1983).  It follows, therefore, that a court should  not          tamper with an  arbitral award "unless it  can be shown that  the          arbitrator acted  in a  way for  which neither  party could  have          bargained."  Local  1445, United Food & Commercial Workers  Int'l          Union v. Stop & Shop Cos., 776 F.2d 19, 21 (1st Cir. 1985).                    Public policy, however,  has its own imperatives    and          they  occasionally conflict  with  the  imperatives  of  contract          interpretatio                      n.  It is a fundamental rule that courts must refrain          from enforcing contracts that violate public policy.   Collective                                          7          bargaining agreements are  simply a species of contracts and,  as          such,                are                    not                       immune                              from the operation of this rule.  "As with any          contract . . .,  a court may not enforce a  collective-bargaining          agreement                    that                        is                           contrary to public policy."  W.R. Grace, 461 U.S.          at 766; accord Misco, 484 U.S. at 42-43.  Because this refusal to          enforce                  contracts                           which                                 offend public policy is inured in  judicial          tradition,                     the                        question                                 of what public policy demands is within the          judicial, not the arbitral, domain.   See Misco, 484 U.S. at  43;          W.R. Grace, 461 U.S. at 766.          III.  ANALYSIS                    In the district court, Exxon argued for reversal of the          arbitral                   award                         on                           two                               grounds:  first, that the arbitrator exceeded          his authority; and second, that the award violates public policy.          The district court rejected  both arguments.  See Exxon Corp.  v.          Esso Worker's  Union, Inc.,  942 F.  Supp. 703  (D. Mass.  1996).          Because  courts  ought   not  trespass  unnecessarily  into   the          uncertainties                       of the public policy terrain, we begin by discussing          Exxon's more case-specific argument.                           A.  The Arbitrator's Authority.                    The key to this issue lies in Part 11 of the CBA.   One          section                  of                     Part 11 provides that Exxon "may discharge or otherwise          discipline" employees who commit posted offenses   "may," in this          context,  "means has  a right  to," according  to the  definition          contained                    in                       the CBA   and another section provides that employees          may challenge  discharges which Exxon  has imposed without  "just          cause."                                     Exxon asseverates that the arbitrator should have equated                                          8          the "right to discharge" language with the "just cause" language;          because                  Exxon reserves the right to discharge employees who commit          posted offenses, this thesis runs, it perforce has just cause  to          discharge such employees.                    But                        the                           arbitrator                                      teased another meaning out of Part 11.          He             concluded                       that                           the                               language which permits Exxon "to discharge or          otherwise discipline"  an employee who  commits a posted  offense          furnishes                    Exxon                          with                              a                                range of disciplinary options, and that this          range                is                   in                      turn subject to an independent application of the just          cause                barometer.  On this reading of Part 11, the arbitrator ruled          that               Exxon                     did not have just cause to cashier Smith merely because          he tested positive for drugs.2                    Although  Exxon's interpretation  of  the  CBA  may  be          somewhat                   less strained, judges have no roving writ to construe the          contract language  in the way  that they think  best.  Rather,  a               2According to the arbitrator:                        just  cause  standard requires  that  the                            prove  by  the preponderance  of  th                    The                    Company                                     e                    evidence  that  the  employee  committed  the                    offense and that the level of discipline  was                    warranted                            .                                                               In this case the Company's actions                    were  automatic:     if  an  employee  in   a                    designated position  tests positive, s/he  is                    terminated.                                                                 The Company's presumption is that                    the employee is a danger to public safety and                    the                        only                             remedy is to excise that danger.  The                    Company's  self-imposed  narrowness  in   its                    choice of remedy fails to meet the just cause                    standard.  There was no evidence that Company                    drivers had any  record of dangerous  driving                    due to ingesting illicit drugs.  In the  case                    of  Smith,  there   was  no  record  of   any                    discipline or any  signs or indications of  a                    drug-related problem during his nearly twenty                    years with the Company.  [Emphasis supplied.]                                          9          court's proper province is to determine whether the  arbitrator's          reading  is plausible,  albeit not  the reading  the court  might          choose.                                     See                                            El Dorado, 961 F.2d at 320 ("When the language of the          underlying contract, taken in context and with due regard for the          surrounding circumstances,  is  fairly susceptible  to  differing          meanings, a reviewing court must not meddle with the arbitrator's          rendition.").  In this instance, the arbitrator's  interpretation          survives that indulgent scrutiny.                    The proof of  the pudding is found in Crafts  Precision          Indus., Inc.  v. Lodge No.  1836, Etc., 889  F.2d 1184 (1st  Cir.          1989).    There,  the employer  had  dismissed  an  employee  for          insubordination.    The   CBA  listed  insubordination  as   "one          `example[]'  of  conduct [that]  may  result  in  suspension,  or          immediate                    discharge," and also included a clause reserving for the          employer                   the                      exclusive                                right to discipline employees.  Id. at 1184-          85.                             In                  a                    refrain that echoes the argument which Exxon makes here,          the              employer                       argued                             that                                  these two clauses, in conjunction, gave it          an             absolute                      right to discharge an employee for insubordination and          urged the arbitrator to  equate this right to discharge with  the          CBA's                "just                     cause"                            provision.  The arbitrator interpreted the right          to discharge as distinct from just cause to discharge and instead          reinstated the employee.  On appeal, we upheld the award  because          the challenged language was open to several interpretations,  and          the              arbitrator's                          position reflected one such (plausible) iteration.          See id. at  1185.  Because Crafts  is a fair congener,  precedent          compels                  us                     to conclude that the arbitrator's interpretation of the                                         10          disputed language here is within the pale and that the arbitrator          did not exceed his authority in this respect.                                 B.  Public Policy.                    Exxon's second  claim  of error  can most  usefully  be          discussed in three segments.                    1.                                               Framing                                the Inquiry.  Misco is the watershed case in          respect to  judicial  review of  an  arbitration award  which  is          challenged on public policy grounds.  There, the company employed          Cooper as  a  night-shift  machinist whose  duties  involved  the          operation of a dangerous  piece of equipment.  One night,  police          arrested                   him                       in the company parking lot, having discovered him "in          the backseat of  [a] car with  marijuana smoke in  the air and  a          lighted                  marijuana                           cigarette in the frontseat ashtray."  484 U.S. at          33.   The company then  fired him for  breaking its rule  against          possession  of illicit  drugs on  business premises.   The  union          grieved  Cooper's  discharge,  and  an  arbitrator  ordered   his          reinstatement.  The  company sued and the federal district  court          annulled  the award based  on public policy.   The Fifth  Circuit          affirmed, holding that Cooper's reinstatement "would violate  the          public policy  `against the operation  of dangerous machinery  by          persons under  the influence of  drugs or alcohol.'"   Id. at  35          (quoting 768 F.2d 739, 743 (5th Cir. 1985)).                    The Supreme Court reversed, ruling that a court may set          aside                an                  arbitrator's                               award on public policy grounds only when "the          contract                   as                     interpreted                                 would violate `some explicit public policy'          that is `well  defined and dominant.'"   Id. at 43 (quoting  W.R.                                         11          Grace, 461  U.S. at  766).   Neither  common sense  nor  "general          consideration                      s of supposed public interests" are suitable vehicles          for identifying public policy;  rather, courts must glean  public          policy from laws and legal precedents.  Id. (quoting W.R.  Grace,          461 U.S. at 766).  Because the lower courts had predicated  their          perceptions                      of                        public                               policy on intuition rather than positive law,          the judgment could not stand.                    Misco                                                  teaches that, though courts may set aside arbitral          awards which contravene public policy,  they may do so only in  a          narrow class of cases, marked by a special set of  circumstances.          See                          id.                                  at                     43.  To determine whether a particular case fits within          the confines  of  this class,  courts  must employ  a  two-tiered          analytic approach.   First, since a  generalized sense of  public          policy  provides an  insufficient basis  upon which  to annul  an          arbitral award, an inquiring court must review existing statutes,          regulations,  and judicial  decisions to  ascertain whether  they          establish a well defined and dominant public policy.  If positive          law              does                   not                       give rise to such a policy, the inquiry is at an end.          See                          id.                                  at                     43-44.  If, however, the court finds that such a policy          exists, it must then proceed to the second step of the pavane and          determine                    whether                           the                               arbitral award clearly violates the discerned          public policy.3  See id. at 44.                3The  Misco Court provided an  apt illustration of how  the          second-stage inquiry operates.  It noted that, even assuming  the          existence of the public policy perceived by the court of appeals,          reinstating  Cooper did  not  necessarily frustrate  that  policy          because there was no showing that Cooper had used marijuana while          on             the                 job.                                            The                          Court                                thought that "the assumed connection between          the marijuana gleanings found in Cooper's car and Cooper's actual                                         12                    2.                                               Identifyi                                ng the Public Policy.  There is a plenitude          of positive law  to support the existence  of a well defined  and          dominant                   public policy against the performance of safety-sensitive          jobs               while                     under the influence of drugs or other intoxicants.  See          Gulf               Coast                     Indus. Workers Union v. Exxon Co., 991 F.2d 244, 252-53          (5th Cir.  1993) (collecting  cases).   Gulf  Coast itself  is  a          representativ                      e case.  There, the court set aside an arbitral award          which proposed  to reinstate  in a  safety-sensitive position  an          employee who had tested positive for drug use after admitting  to          his              employer                       that he had a drug problem but representing (falsely,          as  matters turned  out)  that  he was  obtaining  treatment  and          abstaining from substance abuse.  The court amply illustrated the          proposition that  numerous  statutes, regulations,  and  judicial          opinions  "pronounce the  emphatic national  desire to  eradicate          illicit                  drugs                        from                            the                                workplace," particularly in safety-sensitive          occupations.                        Id. at 250; see also Exxon Corp. v. Baton Rouge Oil,          77 F.3d 850, 855-56 (5th Cir. 1996) (again finding a well defined          and dominant  public policy  against the  performance of  safety-          sensitive jobs while under the influence of drugs).                    The Third  Circuit has addressed  the same  issue in  a          trilogy  of cases  (all  featuring  an employer  related  to  the          appellant here).  In Exxon Shipping Co. v. Exxon Seamen's  Union,          993 F.2d 357 (3d Cir.  1993) (Exxon I), the court invoked  public          policy                 in                    refusing to enforce an arbitral award which directed the          use of drugs in the workplace is tenuous at best and provides  an          insufficient  basis for  holding  that  his  reinstatement  would          actually violate the [perceived] public policy."  484 U.S. at 44.                                         13          employer to reinstate a helmsman who had tested positive for drug          use after his ship ran aground.  Id. at 364.  The court relied in          part on a series of Coast Guard regulations, declaring them to be          "part  of a  broader public  policy against  operation of  common          carriers under  the influence of  drugs," and  found that  policy          adequately                     evinced                             by                               an                                  array of drug-testing regulations.  Id. at          361-62 (citing  14 C.F.R.  part  121, Appendix I (1992)  (Federal          Aviation Administration drug-testing program); 49 C.F.R. part 219          (1991) (Federal Railroad Administration drug-testing program); 49          C.F.R. part 391 subpart H (1991) (Federal Highway  Administration          drug-testing program)).                    In Exxon Shipping Co. v. Exxon Seamen's Union, 11  F.3d          1189 (3d Cir. 1993) (Exxon  II), the court continued on the  same          course.  It  set aside as contrary  to public policy an  arbitral          award                reinstating                           an                              employee who reported to work inebriated.  The          court declared "that an owner or operator of an oil tanker should          not be compelled to reinstate to a `safety-sensitive' position an          individual who has been found to be intoxicated while on duty  on          that vessel."  Id.  at 1194.  Finally,  in Exxon Shipping Co.  v.          Exxon                Seamen's Union, 73 F.3d 1287 (3d Cir.), cert. denied, 116 S.          Ct. 2515 (1996) (Exxon III), the court reinstated an employee who          had              refused                      to submit to a drug test, finding that the CBA did not          require the  employee to  take the test.   Even  then, the  court          reaffirmed its earlier finding that there exists a "broad  public          policy against permitting an individual to operate a vessel while          under the influence of drugs or alcohol."  Id. at 1292.                                         14                    This chorus  has  many voices.   Several  other  courts          likewise                   have identified a well defined and dominant public policy          against the performance of safety-sensitive jobs by persons under          the influence of intoxicants.  Thus, in Union Pacific R.R. Co. v.          United Transp. Union, 3 F.3d 255, 262 (8th Cir. 1993), the  court          used public  policy as  a lever to  set aside  an arbitral  award          reinstating a railroad brakeman who had tested positive for  drug          use after a switching accident.  The court had "no difficulty  in          concluding that there exists  a well-defined and dominant  public          policy  against a  railroad's  employment  of  individuals  whose          impaired  judgment due  to  the use  of  drugs or  alcohol  could          seriously threaten  public safety."  Id.  at 261.  Similarly,  in          Delta                Air                   Lines,                          Inc.                               v.                                  Air Line Pilots Ass'n Int'l, 861 F.2d 665,          674 (11th Cir.  1988), the court defenestrated an arbitral  award          presuming to  reinstate a pilot who  had flown an aircraft  while          obviously                    drunk.                                                      The                               court described this as a "rare example of an          award the enforcement of which would violate clearly  established          public policy which condemns the operation of passenger airliners          by             pilots                    who                       are                           under                                 the influence of alcohol."  Id. at 671.  By          like  token,  the   district  court  in  Georgia  Power  Co.   v.          International Bhd. of Elec. Workers, Local 84, 707 F. Supp.  531,          538-39  (N.D. Ga. 1989),  aff'd, 896 F.2d  507 (11th Cir.  1990),          recognized  the public  policy  against  performance  of  safety-          sensitive jobs  by persons under the  influence of drugs and  set          aside an arbitral award aimed at reinstating an employee who  had          tested positive for drug use.                                         15                    We                       agree                             with                                 these                                       courts.  In our judgment, society has          achieved a broad  national consensus that  persons should not  be          allowed to endanger others while laboring under the influence  of          drugs.   This consensus  is  made manifest  by positive  law  and          translates                     into                          a                           well                                defined and dominant public policy   indeed,          a            national                     crusade                                                                                       counselling against the performance of safety-          sensitive tasks by individuals who are so impaired.                    One subset of this policy is that persons who are under          the influence  of narcotics or  other intoxicants  should not  be          permitted                    to                       operate commercial vehicles on public highways.  This          conclusion is fortified by our knowledge that the legislatures of          those states through  which Smith must drive a petroleum  tanker-          truck have uniformly criminalized the operation of motor vehicles          by persons who are  under the influence of alcohol or  controlled          substances.  See Mass. Gen. Laws Ann. ch. 90 S 24(1)(a)(1)  (West          1997)                (criminalizing the operation of "a motor vehicle while under          the influence of intoxicating  liquor, or of marijuana,  narcotic          drugs,                 depressants or stimulant substances"); R.I. Gen. Laws S 31-          10.3-31(a) (1996) (making it "illegal for any person driving  any          commercial motor  vehicle . .  . to operate  or control any  such          vehicle while under the influence of alcohol, drugs, toluene,  or          any              other                   [controlled]                                substance"); id. S 31-27-2(a) (criminalizing          the              driving                      of "any vehicle . . . while under the influence of any          intoxicating                       liquor,                              drugs, toluene, or any controlled substance");          Conn.                Gen.                     Stat.                          Ann.                               S                                 14-227a(a) (West 1997) (similar); N.H. Rev.          Stat. Ann. S 265:82 (I)(a) (1995) (similar); Vt. Stat. Ann.  tit.                                         16          23, S 1201(a) (1995) (similar); Me. Rev. Stat. Ann. tit. 29-A,  S          2411(1) (West 1996) (similar).                    We find  further evidence of  this policy in  Congress'          enactment in 1991 of the Omnibus Transportation Employee  Testing          Act (the Testing Act), now codified in 49 U.S.C. S 31306  (1994).          The Testing  Act  instructs the  Secretary of  Transportation  to          promulgate regulations "that establish a program requiring  motor          carriers to conduct preemployment, reasonable suspicion,  random,          and              post-accident                           testing of operators of commercial motor vehicles          for  the  use  of  alcohol or  controlled  substances."    Id.  S          31306(b)(1)(A                      ).  In response, several Department of Transportation          agencies  have promulgated  regulations designed  to promote  the          public policy against  performance of  safety-sensitive tasks  by          persons  who  use  drugs.   For  example,  the  Federal  Aviation          Administration has devised a program which requires preemployment          drug  testing as well  as periodic drug  testing of employees  in          safety-sensitive positions.   See 14 C.F.R. Part 121, Appendix  I          (1996).  The Coast Guard has promulgated regulations in order "to          minimize                   the                       use                          of                             intoxicants by merchant marine personnel and to          promote a  drug free  and safe work  environment."   46 C.F.R.  S          16.101(a)                    (1996).  The Federal Railroad Administration has adopted          regulations  crafted to  "prevent  accidents  and  casualties  in          railroad operations that result  from impairment of employees  by          alcohol or  drugs."  49  C.F.R. S 219.1(a)  (1996).  The  Federal          Transit                  Administration's regulations now require each recipient of          a subsidy "to implement an anti-drug program to deter and  detect                                         17          the use of prohibited drugs  by covered employees."  49 C.F.R.  S          653.3 (1996).   Last, but surely  not least, the Federal  Highway          Administration's regulations have been tailored "to help  prevent          accidents                    and injuries resulting from the misuse of alcohol or use          of             controlled substances by drivers of commercial motor vehicles."          49 C.F.R. S 382.101 (1996).                    Congress'                              strongest statement against the performance of          safety-sensitive tasks  while  under the  influence of  drugs  is          embodied                   in                      the DFW Act, which instructs federal agencies to award          contracts                    or                       grants only to those employers who promise to provide          a drug-free working  environment by:  (1) publishing a  statement          informing  employees that  use  of  drugs is  prohibited  in  the          workplace; (2) establishing a "drug-free awareness program;"  (3)          providing  employees  with  drug  counseling  and  rehabilitation          services; (4)  adopting and imposing  penalties on employees  who          violate the terms  of the "drug-free awareness program;" and  (5)          furnishing  employees with  copies  of the  employer's  statement          against on-the-job drug use.  41 U.S.C. SS 701(a)(1), 702(a)(1).                    At                       this                            point                                 in                                    American history, few elements of public          policy command the consensus that attaches to the policy  against          the use of controlled substances by those whose work  potentially          imperils  others.   Judicial decisions,  agency regulations,  and          legislative                      enactments combine to form a solid phalanx of positive          law evidencing a well defined and dominant public policy  against          the              performance                         of                            safety-sensitive tasks while under the influence          of             drugs.                                        Thus,                          Exxon                                has satisfactorily negotiated the first step                                         18          of the public policy pavane.                    3.  The Interface.  Confirming the existence of a  well          defined and dominant public policy  is only half the battle.   To          abandon an arbitral award  as contrary to public policy, a  court          must find that the award clearly violates the identified  policy.          See Misco, 484 U.S. at 43; Prudential-Bache, 72 F.3d at 241.   In          this  instance, the  Union  contends that,  even  if there  is  a          cognizable  public policy  against  the  performance  of  safety-          sensitive                    work                        by                           individuals who are under the influence of drugs,          reinstating Smith would not insult such a policy because there is          no             evidence                      that                          Smith                                was in the grip of cocaine while driving his          petroleum truck.  According to the Union, the positive result  of          Smith's                  random                         drug                             test                                  "merely" indicates the presence of cocaine          in             his                 bloodstream; it does not necessarily signify that Smith was          under                the                    influence of the narcotic either at the time of the test          or at the time he drove his rig.4                    The                        Union                              casts this argument so narrowly that it misses          the mark.  Relying upon job-relatedness as the sole determinative          factor in  permitting employers to  discharge employees who  test          positive                   for                       drug use would force employers to wait for some other          consequential                        indication                                  that drugs are affecting work performance.               4Altho ugh the arbitrator found that the drug test  reliably          indicated                    the                       presence                                of cocaine in Smith's system (a finding that          the Union does not contest on appeal), the test results could not          pinpoint  when  Smith  was under  the  drug's  influence.    This          uncertainty arises from the fact that the manner in which cocaine          metabolizes within  a  person's body  depends  upon a  myriad  of          factors, many of which (e.g., the potency and purity of the  drug          ingested,  the  drug-user's  tolerance,  food  consumption,   and          psychological condition) were not known to Exxon.                                         19          Typically, this other indication will be an accident.  See, e.g.,          Union Pacific,  3 F.3d at  256-57; Exxon I,  993 F.2d at  358-59;          Amalgamated                      Meat                          Cutters, Local Union 540 v. Great W. Food Co., 712          F.2d 122, 123-24 (5th Cir. 1983).  The notorious mishap involving          the Exxon Valdez, which produced vast environmental  devastation,          highlights the core  problem associated with this  "wait-and-see"          approach.  If we have learned anything from such catastrophes, it          is that  employers must act  affirmatively to avoid  drug-related          accidents                    rather than wait passively for such accidents to happen.                    We  conclude, therefore,  that  the  well  defined  and          dominant                   public                         policy                                which we have identified does not require an          employer                   to                      await the occurrence of an accident before discharging          an employee who tests positive for drug use.  In this sense,  the          public policy is not as closely cabined as the Union implies.  It          is the Union's failure to recognize  this aspect   and, thus,  to          appreciate the full breadth of the discerned public policy   that          is fatal to its argument and crucial to our decision.                    The  pertinent public  policy  dictates not  only  that          employees                    refrain                           from                                performing safety-sensitive jobs while under          the  influence of  drugs, but  also that  employers develop  (and          enforce) programs designed  to discourage such  activity.    This          added                dimension is most apparent in the DFW Act and in the Testing          Act.  The impact  of the latter statute  is made manifest by  the          proliferation of governmental  regulations which mandate  regular          drug testing for employees  in safety-sensitive positions.   See,          e.g., 14 C.F.R.  Part 121, Appendix  I (1996) (codifying  Federal                                         20          Aviation Administration's  drug-testing  program); 46  C.F.R.  SS          16.101-16.500 (1996)  (codifying Coast  Guard's chemical  testing          program);  49 C.F.R.  SS  219.1-219.715 (1996)  (limning  Federal          Railroad Administration's drug-testing procedures); 49 C.F.R.  SS          653.1-653.83 (1996) (delineating Federal Transit Administration's          drug-testing procedures);  49  C.F.R. SS  382.101-382.605  (1996)          (describing, inter alia,  Federal Highway Administration's  drug-          testing procedures).  This statutory and regulatory mosaic  bears          witness  that  the same  public  policy  which  countervails  the          performance                      of safety-sensitive tasks while under the influence of          drugs also encourages (and, in some cases, requires) employers to          implement and enforce drug-free workplace programs which  include          mandatory drug testing of those in safety-sensitive posts.                    Consistent with  this  enhanced  understanding  of  the          discerned  public policy,  we hold  that forcing  an employer  to          reinstate an employee who tests positive for drug use pursuant to          a test  that the  employer  administers as  part of  a  drug-free          workplace program would undermine that policy.  It makes no sense          to construe  public policy  as encouraging    and  in some  cases          mandating     employers  to establish  and  enforce  drug-testing          programs,                    yet to preclude them from taking decisive action against          those employees who test positive.                    The   Union  warns   that   this  holding   is   wholly          unprecedented.                                                   But                             the                                 demands of public policy are dynamic rather          than static.   Modern  society's widespread  recognition of,  and          increasingly                       aggressive response to, the growing drug problem is a                                         21          harbinger                    that                        public                               policy may make progressively greater demands          on             industry.                                              Moreover,                                 the Union's claim that we are blazing a new          trail is not entirely accurate.                    At least  two recent cases  track the expanding  public          policy on which we rely.  These cases note, albeit in dicta, that          employers                    must not be compelled to reinstate personnel who violate          the              terms                    of                      a                        comprehensive drug-free workplace program.  In Baton          Rouge                Oil,                     the Fifth Circuit reversed as contrary to public policy          an             arbitral                      decision awarding back pay to an employee in a safety-          sensitive position who  had tested positive for cocaine during  a          random drug test.  The  court held that allowing the employee  to          collect                  back                       pay                          would                                contravene public policy despite the absence          of             any                 evidence that he actually had performed his job while drug-          impaired.                                         See                                              Baton                              Rouge Oil, 77 F.3d at 856.  In so holding, the          court noted the absurdity of reinstating such an employee:                    It is  undisputed that  Chube [the  employee]                    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  . .  . 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 . . . .          Id.                    The Third Circuit echoed these sentiments in Exxon  III          while                upholding an arbitral award which reinstated an employee who          refused                  to                     take                         a                           drug                                test.  The court premised this ruling on the                                         22          arbitrator's conclusion that, under  the terms of the  collective          bargaining agreement, the  company lacked cause to insist upon  a          drug test.  See Exxon III, 73 F.3d at 1295-96.  En  route to this          determination,  however, the  court  observed that  "[a]  clearly          defined and cautiously administered program of drug testing . . .          is the natural  corollary to .  . . a  strong public policy  that          precludes                    allowing                            intoxicated or drug-impaired seamen to remain in          safety-sensit                      ive positions aboard oil tankers."  Id. at 1294.  The          court went on to proclaim  that the "right to test employees  for          alcohol or drug use . . . is critical to achieving the objective"          of preventing drug-impaired  individuals from performing  safety-          sensitive                    jobs.  Id.  The court's ensuing discussion left no doubt          that,                if                   a                     drug                         test                              was                                  validly requested, reinstating an employee          who boycotted it would undermine public policy.  See id. at 1294-          95.                    Baton Rouge Oil and Exxon III reinforce the proposition          that               a                 comprehensive and finely-tuned DFW program which includes a          drug-testing                       component                                is a natural corollary to the ringing public          policy                 against performance of safety-sensitive jobs by individuals          who              are                  under the influence of narcotics or other intoxicants.  It          follows                  that,                        if                          an                             employer elects to establish such a program and          properly preserves its right of implementation in the  collective          bargaining agreement, thwarting the employer's efforts to enforce          the              program's standards would countervail the basic public policy.                    The Union  intimates  that the  public policy  we  have          identified,                      if it persists at all, can be vindicated by some other                                         23          disciplinary                       measure,                               short of termination.  This intimation misses          the                   construed,            would insult public policy for a court to enforce a contract that          a worker  who  has  scorned the  employer's  drug-free  workplace          program.5                    This                         case                              is                                 emblematic of the proposition.  In terms of          public policy,  it would be  grossly counterproductive to  impede          Exxon's                  efforts                          at                            fully                                  implementing its DFW program by forcing it          to reinstate  an employee  who blatantly  violated the  program's          terms.                                   Indeed, Smith's utter disregard for Exxon's DFW program is               point.   The arbitrator  has said  in effect  that the  CBA          properly             requires Exxon to reinstate  Smith   and  it          requires the ongoing employment in a safety-sensitive capacity of          one              feature                      which distinguishes this case from Misco.6  Unlike the          employer in  Misco, Exxon maintains  a comprehensive DFW  program          which                is                  delicately                             calibrated to further the public policy against          job  performance while  under the  influence of  drugs and  other               5                                                                          ,                Moreover, the alternative remedy selected by the arbitrator            a two-month suspension, followed by a one-time drug test   does          not hold out much promise for the safety of either the public  or          Smith's fellow employees.  Smith's failed drug trust evinces  his          inability                    or                       unwillingness to conform to the strictures of the DFW          program.  If he were returned to a safety-sensitive position,  as          the arbitrator  suggests,  there would  be  no sound  reason  for          believing that the leopard had changed his spots.                                                                 6               Another                       distinguishing feature is temporal in nature.  Misco          arose out of an incident that occurred in January 1983.  Judicial          review did not end until the Supreme Court spoke in 1987.   Here,          however, Smith failed  the drug test in  the summer of 1990,  and          judicial review  is still  ongoing.   As  our discussion  of  the          emerging                   public                         policy                                reveals, see text supra, Misco predates both          the Testing  Act and  the DFW  Act.   This chronological  reality          highlights                     the broader fact:  public policy in respect to drugs in          the workplace has matured  greatly in the decade since Misco  was          decided.                                         24          intoxicants.  Smith transgressed the terms of this program  three          times over:   failing to  report his drug  use to Exxon,  falsely          representing that he abjured illicit drugs, and  testing positive          for  drug use.    Given  this threefold  violation,  Exxon  acted          reasonably                     in selecting discharge as the most appropriate means of          eliminating the threat  that Smith poses to  the public.  In  the          bargain,                   Exxon's action was also a necessary means of ensuring the          integrity of its DFW program.  Forcing Exxon to reinstate, into a          safety-sensitive position, an  employee who lacks any  meaningful          commitment to its DFW  program would hamstring its  well-directed          attempts to implement public policy.                    The Union tries to retrieve yet one more arrow from its          quiver.                                     Under                        the                            terms                                  of its DFW program, Exxon treats employees          who test  positive for drug use  more harshly than employees  who          voluntarily come  forward and reveal  that they are  experiencing          problems.  During  oral argument, the Union attempted to  distort          Exxon's distinction  between  these  two types  of  employees  by          suggesting that, since Exxon does not discharge the latter (i.e.,          employees who voluntarily report drug abuse), it lacks sufficient          reason                 to                    discharge                             the                                 former (i.e., employees who are "caught" by          random drug testing).                    This  argument is  deeply  flawed.    Exxon  encourages          employees                    to                      report                             their drug use so that the company can transfer          such               workers                       to                         jobs                              that do not implicate public safety while they          undergo rehabilitation.  These employees do not pose a threat  to          the public because,  by reporting their drug abuse, they  provide                                         25          Exxon with the opportunity to implement safety precautions.   The          actions                  of                    these                          employees are radically different from the actions          of employees who, like Smith, attempt to conceal their drug  use.          These duplicitous employees pose  a real and serious threat:   by          failing                  to                     report                           their                                 problem, they deny Exxon the opportunity to          take precautions  to safeguard  the public.   On  this basis,  we          believe                  it                     is                       reasonable                                    and fully consistent with the identified          public                 policy   for Exxon to offer a measure of job security as an          incentive for  voluntary reporting, while  cutting all ties  with          employees                    who do not accept the incentive and who subsequently are          caught.                    We                       need                            go                               no                                 further.                                                                                     Because Smith thumbed his nose at          Exxon's DFW program, his reinstatement clearly would violate  the          well defined  and dominant public  policy against performance  of          safety-sensitive jobs while under the influence of drugs.  Hence,          the federal courts must refuse to enforce the arbitral award.          Reversed.                                         26
