                 United States Court of Appeals,

                          Fifth Circuit.

                            No. 94-60772.

    GULF COAST INDUSTRIAL WORKERS UNION, Plaintiff-Appellant,

                                 v.

             EXXON COMPANY, USA, Defendant-Appellee.

                          Dec. 18, 1995.

Appeal from the United States District Court for the Southern
District of Texas.

Before REYNALDO G. GARZA, BARKSDALE and EMILIO M. GARZA, Circuit
Judges.

     REYNALDO G. GARZA, Circuit Judge:

     Gulf Coast Industrial Workers Union brought suit against Exxon

Company, USA to enforce an arbitration award in favor of one of its

members, Robert Chamblin.      The district court granted summary

judgment in favor of Exxon Company, USA, vacating the arbitration

award on several grounds.      We affirm on the ground that the

arbitrator misled Exxon into believing that evidence was admitted,

and then refused to consider that evidence.

                                 I.

                             BACKGROUND

     Robert Chamblin ("Chamblin") was employed by Exxon Company,

USA ("Exxon") as a process technician at Exxon's Baytown Refinery

in Baytown, Texas.    As a process technician, Mr. Chamblin was

responsible for producing and handling highly volatile gasses and

liquids at high temperatures and pressures.   On November 3, 1992,

at Exxon's request, agents of Interquest, Inc. ("Interquest"), a


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canine contraband detection service, searched various parts of the

Baytown Refinery for drugs and alcohol.    One of the drug dogs used

by Interquest alerted to Chamblin's car, which was parked in the

Refinery parking lot.    Chamblin then allowed Interquest's agent,

Debbie Farmer, to search his vehicle.     Farmer found the stub of a

hand-rolled cigarette, which she suspected to contain marijuana,

some green vegetation, and a suspected marijuana seed.    She placed

the items that she found in a plastic bag for subsequent testing.

     Another Interquest employee, Mike Ferdinand, later performed

a Dequenois Levine Reagent ("DLR") test on the substances found in

Chamblin's truck.      A DLR test determines whether a substance

contains marijuana.      The test showed that the cigarette stub

contained marijuana, but that the leafy substance did not.1      The

cigarette stub was consumed during the test.

     Under Exxon's Alcohol and Drug Use Policy (the "Drug Use

Policy"), Exxon was allowed to require employees to take a drug

test "where reasonable cause exist[ed] to suspect alcohol or

controlled substance misuse." The Drug Use Policy further provided

that "refusal to submit to testing is grounds for disciplinary

action, including termination of employment."    After learning that

the cigarette stub found in Chamblin's car tested positive for

marijuana, Exxon ordered him to submit to a reasonable cause drug

test.    Chamblin refused to submit to such a test.

     Exxon twice explained to Chamblin that he had been ordered to

submit to a test, and that he could be terminated for refusing to

     1
        The suspected marijuana seed was not tested.

                                  2
submit.       Exxon also provided him with a copy of the Drug Use

Policy, and read to him the portion of the policy stating that he

could    be      terminated   for   refusing      to   submit     to    a     drug   test.

Chamblin stated that he understood the consequences of his actions,

but still refused to submit to a test.                      Exxon then suspended

Chamblin, and later terminated him for refusing to take a drug

test.

       Chamblin was a member of the Gulf Coast Industrial Workers

Union (the "Union"), which had a collective bargaining agreement

("CBA") with Exxon.           Under the CBA, Exxon could only discharge a

worker for just cause.              Both possession of marijuana on Exxon

property and refusing to take a drug test when reasonable cause to

suspect drug use constituted just cause.                    The CBA also provided

that the Union could challenge the discharge of a worker by

submitting the dispute to arbitration.                  The Union submitted the

issue of whether Exxon had just cause to terminate Chamblin to

arbitration.

       At the arbitration hearing, Farmer testified that the drug dog

alerted to Chamblin's vehicle and that, based on her thirteen years

of experience, the substance found in Chamblin's vehicle appeared

to    her   to    be   marijuana.      She      also   testified       that    Ferdinand

performed a DLR test on the hand-rolled cigarette stub, which

confirmed the presence of marijuana.                   Exxon attempted to elicit

testimony to establish Substance Analysis Report ("SAR"), which

contained the drug test results, as a business record.                          However,

the    Arbitrator       informed    Exxon       that   it   did   not       have     to   be


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established, because it was already in evidence.2      The Union did

not object to Farmer's testimony about Ferdinand's performance of

the drug test.   Exxon did not present any evidence of the accuracy

of the DLR test;   however, the parties had already stipulated that

"[t]he DLR test is an accurate method for testing substances for

the presence of marijuana."       Record at 173.   Ferdinand did not

testify at the arbitration hearing.

     The arbitrator ruled that Exxon did not have reasonable cause

to order Chamblin to submit to drug testing, and ordered that he be

reinstated with back pay. The arbitrator so ruled because he found


     2
      The following dialogue occurred during the arbitration
hearing:

     Counsel for Exxon: I would like to move to have this
          submitted as a business record.

     Arbitrator:   Well, it's already in.

     Counsel for Exxon:   Well, it was stipulated—

     Counsel for Union: Yeah I'm not going to object to the
          admission of any of them, I'm going to have
          cross-examination to question you about them so you
          don't have to go through all that form of processing,
          they are all in.

     Counsel for Exxon:   Okay.

     Arbitrator:   That was my understanding.

     Counsel for Exxon: Well, just for clarification, my
          understanding was that it was stipulated as a document
          from Interquest but it didn't have the stipulation as a
          business record.

     Arbitrator: If there are objections to its admission into
          evidence, Ms. Groth will object and otherwise let's
          just assume they're all in.

     Counsel for Exxon:   Okay....

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that Exxon did not prove that the substance found in Chamblin's

vehicle was marijuana.   He stated that the SAR did not establish

that the substance was marijuana because it was hearsay, and did

not even have the status of a business record.   The arbitrator then

spent five pages of his decision in a diatribe on the unreliability

of hearsay.

     The Union then filed suit against Exxon in the district court

pursuant to Section 301 of the Labor Management Relations Act, 29

U.S.C. § 185, to enforce the arbitration award.       Exxon filed a

counterclaim seeking to vacate the award.   Both parties moved for

summary judgment.   The district court granted summary judgment in

favor of Exxon, vacating the arbitration award on several grounds.

One of those grounds was that the arbitrator lulled Exxon into

believing that the SAR was admitted into evidence and then refused

to consider it on the ground that it was unreliable hearsay.    The

Union appeals from the district court's vacatur.

                                II.

                            DISCUSSION

      In reviewing a district court's vacatur of an arbitration

award, we posit the same question addressed by the district court:

whether the arbitration proceedings were fundamentally unfair.

Forsythe Intern., S.A. v. Gibbs Oil Co., 915 F.2d 1017, 1021 (5th

Cir.1990). We review the district court's conclusion de novo. Id.

      "Judicial review of an arbitration award is extraordinarily

narrow."   Antwine v. Prudential Bache Securities, Inc., 899 F.2d

410, 413 (5th Cir.1990).    Under the Federal Arbitration Act, 9


                                 5
U.S.C. § 1, et seq., we can only disturb an arbitration award on

the grounds set out in that Act.        The case before us, however, fits

squarely into one of those grounds.

        Section 10 of the Federal Arbitration Act provides that a

district court may vacate an arbitration award where—

       the arbitrators were guilty of misconduct in ... refusing to
       hear evidence pertinent and material to the controversy; or
       of any other misbehavior by which the rights of any party have
       been prejudiced.

In the instant case, not only did the arbitrator refuse to consider

evidence of    the   positive    drug       test,    he   prevented    Exxon   from

presenting additional evidence by misleading it into believing that

the SAR had been admitted as a business record.              Exxon attempted to

establish the SAR as a business record, but the arbitrator stopped

it, stating that the test was already admitted.              Further, Exxon had

no reason to have Ferdinand testify as to how he conducted the DLR

test, because neither the arbitrator nor the Union objected to

Farmer's testimony that the cigarette stub found in Chamblin's

vehicle tested positive for marijuana. The arbitrator used Exxon's

failure to present evidence that he told Exxon not to present as a

predicate for ignoring the test results.                  Such misconduct falls

squarely within the scope of Section 10, and is grounds for

vacatur.

                                     III.

                                 CONCLUSION

       Accordingly, the district court's vacatur is AFFIRMED.                   We

note   that   this   vacatur    is   without        prejudice   to    the   parties

proceeding in accordance with law.

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