This appeal requires us to determine whether as a matter of national policy the federal courts must decline to enforce an arbitrator's award that orders only back pay--not reinstatement--for an employee who was fired because of drug use but also fired in violation of the terms of his collective bargaining agreement. The case arose from the discharge of Donald Chube by Exxon Corporation for his violation of the company's policy on alcohol and drug use. Chube worked as a supervisor in a "safety-sensitive position and was discharged after a drug test indicated that he had used cocaine. After Exxon terminated Chube, the Baton Rouge Oil and Chemical Workers Union grieved his discharge and won an order for Chube's reinstatement and back pay. The district court affirmed the arbitrator's alternative order for reinstatement only. Exxon appeals. We reverse and render.

I

Exxon operates a chemical plant near Baton Rouge Louisiana. The production and maintenance employees operate under a collective bargaining agreement dated March 31 1988.Chube who was ordinarily an operator in the olefins purification department had been "stepped up" to a safety-sensitive classification operations controller in which he acted as a temporary supervisor. The record is unclear as to the permanency of this position but it is clear that he was acting as a temporary supervisor at the time that he was drug-tested.

In 1987 Exxon revised its alcohol and drug use policy. The new policy authorized unannounced searches for drugs and alcohol on Exxon property. It also required employees to submit to alcohol and drug testing "where cause exists to suspect alcohol or drug use." A positive test result or refusal to submit to a test was grounds for disciplinary action including termination. One year after Exxon revised its policy the Drug-Free Workplace Act of 1988 41 U.S.C. SEC.701-707 was enacted. To clarify its policies and to comply with the Act Exxon published a list of "Posted Offenses giving notice that an employee who committed one of the following offenses could be discharged or otherwise disciplined without notice:

a. Being under the influence of alcohol in the opinion of a doctor Company guard or supervisor on Company time or property.

b. Bringing onto Company property or possessing or using on Company time or property an alcoholic beverage a habit-forming drug or a drug which the Company believes may impair the employee's ability to perform duties in a safe and responsible manner.

c. Habitual use of an alcoholic beverage or habit-forming drug; except where the Company doctor believes that such use is necessary for the employee's health.

In early 1989 Exxon proposed to add random drug tests for a group of "designated positions" with critical safety responsibilities. Chube's job as temporary supervisor was one of these "designated positions." His permanent position as operator was not covered however. The Union objected to the policy changes. *fn1 It expressed concern that the policy did not provide for employee rehabilitation. The Union also objected that the random test policy would not give employees ample notice that they would be subject to testing. Discussions between the Union and Exxon reached an impasse. Consequently in August 1989 Exxon unilaterally issued a Revised Alcohol and Drug Abuse Policy which was to be effective September 1, 1989. The policy contained the following paragraph:

Exxon may conduct unannounced searches for drugs and alcohol on owned or controlled property. The Company may also require employees to submit to medical evaluation or alcohol and drug testing where cause exists to suspect alcohol or drug use. Unannounced periodic or random testing will be conducted when an employee meets any one of the following conditions: has had a substance abuse problem or is working in a designated position identified by management a position where testing is required by law or a specified executive position. A positive test result or refusal to submit to a drug or alcohol test is grounds for disciplinary action including termination.

On August 24--a week before the new policy was to become effective--Chube as an employee in a "highly sensitive position was given a drug test, and the test was positive for cocaine use. On September 13, Exxon discharged Chube for violating the Company's Alcohol and Drug Policy but did not set out the precise nature of the violation. The Union filed a timely grievance on Chube's behalf, and when the matter was not resolved through the grievance process, the Union demanded arbitration. The issue stipulated for the arbitrator was whether Exxon had violated the contract when it discharged Chube and, if so, what should be the remedy.

The Union argued that under Exxon's policies then in effect the drug screen administered to Chube was solely to determine his eligibility to be assigned to a "designated position"; the test results could not be used for purposes of discipline because he had violated no posted rule in effect at the time of the test. Exxon responded that all employees had been given ample notice that a positive drug test would result in discharge. Furthermore its policy was based on the obvious need to protect lives and property against possibly devastating accidents.

The arbitrator determined that the critical issue in the case was not whether Chube engaged in the use of illegal drugs but whether in this instance the presumed use of cocaine gave Exxon the right under the contract to discharge Chube. He concluded that Exxon violated SEC. 1121 of the contract by discharging Chube. That section reads as follows:

1121. General

(a) The Company may discipline an employee only for cause.

(b) The Company has posted a list of offenses which merit discipline. This list is dated January 3 1984. Before the Company may make any change in this list or any subsequent list the change must be agreed to by the Union.

(c) If an employee commits one of the posted offenses it is cause for discipline and the Company may discipline him without advance notice.

(d) Even though an employee does not commit a posted offense his conduct or work performance may still be cause for discipline. However the Company may not discipline him without giving him advance notice and where practicable an opportunity to correct the situation.

The arbitrator found that under SEC. 1121(b) Exxon could discharge Chube "without advance notice" only if Chube committed a posted offense. He further found that Chube had committed none of the posted offenses in effect on the date of the tests; specifically there was no evidence that he had brought drugs on company property or possessed or used drugs on company time or habitually used a habit-forming drug. The arbitrator noted that the 1989 drug policy did not become effective until September 1 1989 and that Chube was tested before that date. Further and at the heart of our review today the arbitrator rejected Exxon's argument that notwithstanding whether Exxon breached the collective bargaining agreement Chube's discharge was justified based on a strong public policy against the use of drugs.

The arbitrator's award required Exxon to reinstate Chube without loss of seniority and pay him back pay and benefits calculated on the basis of [Chube's] permanent classification wage level. Alternatively--and only because Chube was incarcerated after his discharge for selling drugs--the arbitrator required Exxon to pay him one year's back pay in the event that Chube was still unavailable for reinstatement. *fn2

Exxon then instituted this suit in the United States District Court for the Middle District of Louisiana seeking by motion for summary judgment to vacate the arbitration award. The Union filed a cross motion for summary judgment seeking enforcement of the award on the remedy of back pay plus costs and not on the remedy of reinstatement. After the district court granted the Union's motion for summary judgment and enforced the arbitrator's award Exxon timely appealed.

II

We review a grant of summary judgment de novo. Calpetco1981 v. Marshall Exploration Inc. 989 F.2d 1408 1412 (5th Cir.1993). Once a properly supported motion for summary judgment is presented the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby Inc. 477 U.S. 242 249 106 S. Ct.2505 2510-11 91 L. Ed. 2d 202 (1986); Brothers v. Klevenhagen 28 F.3d 452 455 (5^th Cir.1994) cert. denied __ U.S. __ 115 S. Ct.639 130 L. Ed. 2d 545 (1994). We review "the facts drawing all inferences most favorable to the party opposing the motion." Matagorda County v. Russell Law 19 F.3d 215 217 (5^th Cir.1994).

Review of an arbitration proceeding is narrowly limited. A court will not disturb an award if it "draws its essence from the collective bargaining agreement" and is not based on the arbitrator's "own brand of industrial justice." United Steelworkers of America v. Enterprise Wheel & Car Corp. 363 U.S. 593 597 80 S. Ct.1358 1361 4 L. Ed. 2d 1424 (1960). We may not reconsider an award based on alleged errors of fact or law or misinterpretation of the contract. United Paperworkers Int'l Union v. Misco Inc. 484 U.S. 29 36 108 S. Ct.364 369-70 98 L. Ed. 2d 286 (1987). However we may scrutinize the award to ensure that the arbitrator complied with the jurisdictional prerequisites of the collective bargaining agreement. E.I. DuPont de Nemours and Co. v. Local 900 of Int'l Chemical Workers Union 968 F.2d 456 (5th Cir.1992) (internal quotations and citations omitted). The district court may vacate an arbitrator's award if the arbitrator exceeded its arbitral authority provided for in the agreement. Id.

Notwithstanding our normally narrow review of an arbitrator's award if that award is contrary to public policy the award cannot be enforced. A federal court may vacate the award if it is "clearly shown" that the award violates "well-defined and dominant" policy drawn from existing laws and legal precedent. W.R. Grace and Co. v. International Union of Rubber Workers 461 U.S. 757 766 103 S. Ct.2177 2183-84 76 L. Ed. 2d 298 (1983); Misco 484 U.S. at 43-45 108 S. Ct. at 374-75. It is on public policy grounds as reflected in our opinion in Gulf Coast Indus. Workers Union v. Exxon Corporation 991 F.2d 244 248-55 (5th Cir.) cert. denied U.S.114 S. Ct.441 126 L. Ed. 2d 375 (1993) that we scrutinize the arbitrator's award in this case.

III

In this respect Exxon argues that the arbitrator's award violates public policy because it orders reinstatement of "a cocaine user and convicted drug dealer to a highly safety-sensitive job." *fn3 Exxon contends that well-defined public policy articulated by this court in Gulf Coast Indus. Workers prohibits the return of drug users to jobs that pose a threat to the safety of other workers and/or the general public. It argues that allowing the arbitration award to stand whether it involves reinstatement or merely payment of back pay undermines the public policy against the use possession or positive testing for alcohol or drugs in the workplace.

The Union effectively counters that the order of reinstatement is moot; it only seeks enforcement of the arbitrator's alternative award limited to back pay. The Union admits that a public policy against drug use in safety sensitive positions exists; it contends however that that public policy is not at issue in this case because of the impossibility of reinstating Chube to his prior position. Generally adopting this view of the case the district court observed that the arbitrator would have erred if it had actually required Exxon to reinstate Chube but agreed with the Union that Chube was not available for reinstatement and that that portion of the award was therefore immaterial to the appeal.

IV

We begin our public policy analysis with an examination of W.R. Grace in which the Supreme Court clearly articulated the public policy standard. In that case an employer signed a conciliation agreement with the Equal Employment Opportunity Commission ("EEOC"). The agreement conflicted with the collective bargaining agreement because it rescinded certain provisions of the bargained-for seniority system to allow advancement of some minorities which prompted adversely affected employees to file grievances. Ultimately the Supreme Court was called upon to determine whether the collective bargaining agreement was unenforceable as violative of public policy. Court began by observing that a collective bargaining agreement is a contract and 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 766 103 S. Ct. at 2183. Court stated:

If the contract as interpreted by [the arbitrator] violates some explicit public policy we are obliged to refrain from enforcing it. Such a public policy however must be well defined and dominant and is to be ascertained "by reference to the laws and legal precedents and not from general considerations of supposed public interests."

Id. (citations omitted). Court concluded that the company's voluntary commitment to two conflicting contractual obligations was a dilemma of its own making and that enforcement of the collective bargaining agreement in the employees' favor violated no explicit public policy.

Four years later in Misco a paper plant employee was discharged after police apprehended him in a coworker's car that was filled with marihuana smoke. The company asserted that the employee's action violated its rule against having an illegal substance on company property. The arbitrator upheld the union's grievance and ordered the employee reinstated and the company filed suit to have the award vacated. The district court set aside the award on public policy grounds. A panel of this circuit affirmed articulating the policy as "one against the operation of dangerous machinery by persons under the influence of drugs or alcohol." Misco Inc. v. United Paperworkers International Union AFL-CIO 768 F.2d 739 743 (5th Cir.1985).

The Supreme Court reversed holding that we had not followed W.R. Grace 's command to identify with specificity the existing laws and legal precedents underlying our public policy decision. Court reiterated its holding from W.R. Grace that allowing public policy to bar the enforcement of an arbitrator's award is little more than "a specific application of the more general doctrine rooted in the common law that a court may refuse to enforce contracts that violate law or public policy." Misco 484 U.S. at 42 108 S. Ct. at 373. As we observed in Gulf Coast

The Supreme Court re-emphasized in Misco that when applying the narrow public policy exception courts are forbidden to use imprecise notions of public policy which would allow ill-defined considerations to negate the rule favoring judicial deference. "At the very least wrote Justice White, an alleged public policy must be properly framed under the approach set out in W.R. Grace and the violation of such a policy must be clearly shown if an award is not to be enforced." 484 U.S. at 43 108 S. Ct. at 373. Gulf Coast Indus. Workers Union 991 F.2d at 249.

In Gulf Coast our definitive post-Misco case we again applied the public policy exception to bar enforcement of an otherwise valid arbitrator's award. Exxon discharged an employee for violating its Alcohol and Drug Use Policy and for breaching an employee after-care agreement. The Union filed a grievance contesting the termination and the arbitrator held that summary discharge was unjustified and too harsh a penalty for the employee's violations. The arbitrator directed Exxon to reinstate Woods to his previous job without back pay contingent upon a negative drug and alcohol screen. After the Union instituted suit to enforce the award the district court granted Exxon's cross-motion for summary judgment and vacated the arbitration award.

On appeal we reviewed applicable law including W.R. Grace and Misco. We recognized that the district court had not "grounded its decision upon an articulated review of laws and legal precedents that frown upon the reinstatement of such employees." Gulf Coast 991 F.2d at 250. We noted that the district court had applied a "common sense public policy approach and explained that we may not use imprecise notions of public policy which would allow ill-defined considerations to negate the rule favoring judicial deference." Id. at 249. We nevertheless affirmed vacating the arbitrator's award holding "that it offends public policy for Woods an employee who occupies a safety-sensitive position to retain his job upon testing positive for cocaine while on the job and after having breached his company's drug abuse policy on two occasions--first when he broke his pledge of abstinence and second when he failed to disclose his relapse." Id. We supported our holding by noting that "there are countless statutes regulations company guidelines and judicial decisions that pronounce the emphatic national desire to eradicate illicit drugs from the workplace." Id.

Since Misco the Supreme Court has recognized a public policy against drug use in the workplace (in a slightly different context) stating that the government has a strong interest in preventing employees from using alcohol or drugs while on duty to ensure the safety of the public and the employees. Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 621 109 S. Ct.1402 1415 103 L. Ed. 2d 639 (1989) (holding in context of challenge to Federal Railroad Administration drug and alcohol testing rules that such tests were reasonable under the Fourth Amendment even though there was no requirement of warrant or reasonable suspicion because of compelling government interest).

V

Thus we come to the question of whether notwithstanding Exxon's clear breach of the collective bargaining agreement we will deny enforcement of the arbitrator's award under the circumstances of this case. The Union makes a forceful argument that the case at bar must be distinguished from Gulf Coast because the Union seeks only to enforce an award of back pay to Chube--an award that cannot be said to contain the element of endangerment that underlay our decision in Gulf Coast. In this case the arbitrator heeded the admonition in our case law that such an order would violate public policy and consequently crafted its order so that Chube would not be placed back into a safety-sensitive position. This distinction the Union argues in combination with Misco 's requirement of a hands-off approach to a review of an arbitrator's award is sufficient to warrant affirmation of the arbitrator's award.

After thorough consideration of this argument we cannot agree. It is undisputed that Chube 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 articulated in Gulf Coast 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 that created the unsafe situation in the first place (i.e. order of back pay or reinstatement into the job the employee held before promotion to a safety-sensitive position). In addition to addressing future conduct the public policy against drug use in safety-sensitive positions also must look back to the conduct that is the subject of the grievance. The policy looks to the future to ensure safety but looks back to deny condonation of misconduct.

We think that the public policy against drug use in safety sensitive positions that we enunciated in Gulf Coast would be weakened by the arbitrator's order in this case. It suggests to the drug user in a safety-sensitive position that the maximum penalty that he might incur would either be reinstatement to his position prior to assuming the safety-sensitive duties or if reinstatement were impossible back pay at the rate of his former position. Such a suggestion is consistent neither with the public policy we articulated in Gulf Coast nor the statutes regulations and case law we cited in support of that public policy. In Gulf Coast we highlighted the various legal sources reflecting our nation's well defined and dominant desire for a drug-free society. We cited federal statutes *fn4 state statutes *fn5 and various regulations. We also relied on previous case law that condemned the presence of drugs in the workplace *fn6 and that noted the dangers associated with petro-chemical refineries. *fn7 In reviewing the legal sources we identified in Gulf Coast we entertain no doubts that each of these bases is equally relevant to the case before us today.

VI

We recognize that under Misco it is the rare case where public policy trumps the terms of a bargained-for agreement between a union and a corporation. *fn8 We conclude however that the arbitrator's award and remedy under the facts of this case--ordering reinstatement of or monetary award to an employee who while working in a safety-sensitive position tested positive for the use of drugs--violate well-established public policy against the use of drugs by employees in safety-sensitive positions. We therefore REVERSE the arbitrator's award in favor of Donald Chube and RENDER judgment in favor of Exxon Corporation.

REVERSED and RENDERED.