

                 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
&amp; 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 &amp; Mathiason, P.C. on brief for
Institute for a Drug-Free Workplace, amicus curiae.
     Nathan S. Paven, with whom Paven &amp; 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 &amp; 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 &amp; 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 &amp; Commercial Workers  Int'l

Union v. Stop &amp; 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
