Merck & Co. v. International Chemical Workers Union Council of the United Food & Commercial Workers Union, Local 94C , 335 F. App'x 300 ( 2009 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 08-1917
    MERCK & COMPANY, INCORPORATED,
    Plaintiff – Appellee,
    v.
    INTERNATIONAL CHEMICAL WORKERS UNION COUNCIL OF THE UNITED
    FOOD AND COMMERCIAL WORKERS UNION, LOCAL 94C,
    Defendant – Appellant.
    Appeal from the United States District Court for the Western
    District of Virginia, at Harrisonburg.     Samuel G. Wilson,
    District Judge. (5:07-cv-00114-SGW)
    Argued:   March 25, 2009                   Decided:   July 6, 2009
    Before MICHAEL, KING, and AGEE, Circuit Judges.
    Reversed and remanded by unpublished per curiam opinion.
    ARGUED:   Jonathan G. Axelrod, BEINS & AXELROD, PC, Washington,
    D.C., for Appellant. Joseph Edward Santucci, Jr., MORGAN, LEWIS
    & BOCKIUS, LLP, Washington, D.C., for Appellee.      ON BRIEF:
    Heather S. Gelfuso, MORGAN, LEWIS & BOCKIUS, LLP, Washington,
    D.C., for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    The    International          Chemical        Workers       Union    Council    of    the
    United      Food   and     Commercial        Workers         Union,        Local    94C    (the
    “Union”), appeals from the district court’s adverse decision of
    August 12, 2008, awarding summary judgment to Merck & Company,
    Incorporated       (“Merck”),        and   vacating          an   arbitration       award    in
    favor of the Union.                 See Merck & Co., Inc., v. Int’l Chem.
    Workers Union Council of the United Food and Commercial Workers
    Union, Local 94C, No. 5:07-cv-00114 (W.D. Va. Aug. 12, 2008)
    (the “Memorandum Opinion”). 1              The court ruled that the arbitrator
    had   exceeded     his     authority       in       making    the    arbitration          award,
    which required Merck to reinstate one of its employees.                                      As
    explained below, we reverse and remand for enforcement of the
    award.
    I.
    A.
    On    September      7,   2005,      Dale      Moubray       reported    to    work    at
    Merck’s      Elkton,     Virginia,         facility      under        the     influence      of
    alcohol.     Moubray,      a    pipe-fitter/millwright,               is    represented      by
    the   Union,       which       is    the    exclusive             collective       bargaining
    1
    The Memorandum Opinion is found at J.A. 151-56.
    (Citations herein to “J.A. ___” refer to the contents of the
    Joint Appendix filed by the parties in this appeal.)
    2
    representative         for   a     bargaining       unit       of     production      and
    maintenance employees at Merck’s Elkton facility. 2                         Rather than
    terminate Moubray from his employment, Merck imposed a five-day
    unpaid disciplinary suspension.                   Following the suspension, on
    September 13, 2005, Merck, Moubray, and a Union representative
    entered into a “Return to Work & Last Chance Agreement” (the
    “Last Chance Agreement” or the “LCA”).                  See J.A. 58-59.
    The Last Chance Agreement required Moubray to, inter alia,
    meet with a representative of Merck’s Employee Assistance Plan
    in order to establish a treatment plan.                  The LCA further obliged
    Moubray “to comply with all recommendations and requirements as
    established       by   the   Employee       Assistance        Plan    and   the    Health
    Services Department.”            J.A. 58.       If, at any time, Moubray failed
    to comply with these recommendations and requirements, the LCA
    provided that he would “be subject to immediate termination and
    such       termination   [would]     not     be    subject     to     the   contractual
    grievance and arbitration procedures.”                     Id. at 59. 3           The LCA
    stated,       however,   “that     in   the     event    of    a     termination,     Mr.
    Moubray may file a grievance challenging the facts upon which
    2
    Merck and the Union were signatories to a collective
    bargaining agreement in effect from May 1, 2003, through April
    30, 2006 (the “CBA”). See J.A. 1-49.
    3
    The CBA created a governing grievance procedure                               that
    included arbitration of certain disputes. See J.A. 38-39.
    3
    the Company determined that Mr. Moubray was non-compliant or
    otherwise in violation of this Agreement.”              Id.
    On the following day, September 14, 2005, Martha Sheridan,
    a   representative    of    Merck’s   employee     assistance     program,    met
    with Moubray and decided that he was to participate in a program
    offered    by   an   independent      entity     called   the    LIFE   Recovery
    Program (the “Program”).         At his first session in the Program,
    on September 19, 2005, Moubray executed a patient contract (the
    “Program      Contract”),     agreeing      to    the     following     relevant
    conditions:
    1. I will attend the LIFE Recovery Program . . .
    Monday, Tuesday, Thursday . . . . If extraordinary
    circumstances prevent my attendance or results in
    tardiness, I will notify the staff immediately.
    . . .
    7. I will follow all relevant patient                     rules   and
    regulations as stated in patient handbook. 4
    . . .
    11. I understand that the following behaviors                     may
    result in premature discharge from the program:
    . . .
    4
    The “patient handbook” of the Program provides, in
    relevant part, that “[p]rompt attendance at all scheduled groups
    and activities is expected except when excused by your
    counselor, doctor, or nurse. You are expected to participate in
    and attend all scheduled groups and activities.” J.A. 63.
    4
    5. Lack of cooperation with program expectations
    to the extent of impeding progress (This includes
    chronic tardiness or absenteeism).
    J.A. 62.
    In the weeks following the Program’s first session, Moubray
    attended ten of eleven sessions, with a single excused absence
    on September 22, 2005.            He then missed a session on October 13,
    2005,    attended    sessions       on    October     17,   2005      and    October     24,
    2005, and missed sessions on October 18 and October 25, 2005.
    Moubray did not, prior to any of the three missed sessions,
    notify    the    Program     to   explain       his   absence     or   request      to    be
    excused.        Moubray returned for a session on October 27, 2005,
    and met with his Program case manager, Dee Michael.                               Michael
    advised    him    not   to   miss    the    October      31,    2005       session,     even
    though    Moubray    requested       to    be    excused    from      it    to   take    his
    godson    trick-or-treating.             Despite      Michael’s    warning,       Moubray
    did not attend the October 31 session.                   Moubray returned for the
    session of November 1, 2005, and was advised that he could not
    continue with the Program until he met with Michael.                              Moubray
    called Michael on November 2, 2005, and scheduled an appointment
    for the following day.              Also on November 2, Sheridan, Merck’s
    employee    assistance       program      representative,        called       Michael     to
    check on Moubray’s status in the Program.                       Michael summarized
    Moubray’s       participation,       and    on     November      3,     2005,     sent     a
    confirming letter to Merck (the “Letter”).                         Michael’s Letter
    5
    concluded:           “As     of     today’s       date,       Mr.   Moubray         is   not     in
    compliance with our program requirements.”                          J.A. 69.
    Upon       Merck’s    receipt       of    the    Letter,      Sheridan        instructed
    Moubray not to attend the November 3, 2005 meeting with Michael
    because he had been kicked out of the Program.                                That same day,
    Merck notified Moubray by letter that he was out of compliance
    with       the    Last     Chance        Agreement      and     was,     therefore,         being
    suspended         from     employment,          with    intent      to       discharge.          On
    November 14, 2005, Moubray was discharged by Merck.
    B.
    On    November       15,    2005,       the    Union    filed     a    grievance        with
    Merck,        protesting          Moubray’s           discharge        and        seeking       his
    reinstatement.           Merck conducted a grievance hearing on December
    16, 2005, and, that same day, denied the Union’s grievance.                                     The
    Union then submitted its grievance to arbitration before the
    Federal Mediation and Conciliation Service, on whether Moubray
    had complied with the terms of the Last Chance Agreement.                                        On
    August      8,     2007,    the        parties    participated         in     an    arbitration
    hearing          conducted        by     Arbitrator       Jeffrey           B.     Tener       (the
    “Arbitrator”).             Two    months       later,     on    October       19,    2006,      the
    Arbitrator         entered        an     Arbitration        Opinion         and     Award      (the
    “Award”), 5        concluding          that,     although      Merck     was       entitled      to
    5
    The Award is found at J.A. 89-109.
    6
    terminate Moubray if he was out of compliance with the Last
    Chance Agreement, “[i]t cannot be concluded that Moubray was not
    compliant with the conditions of the last [chance] agreement so
    he was not subject to immediate termination.”                      Award 20.   The
    Award thus directed Merck to “reinstate [Moubray] to his former
    position and to make [him] whole.”               Id.   When Merck refused to
    accept the Award and reinstate Moubray, this litigation ensued.
    Two months later, on December 26, 2007, Merck filed its
    complaint in the Western District of Virginia, pursuant to § 301
    of the Labor Management Relations Act, 
    29 U.S.C. § 185
    , seeking
    to vacate the Award.             Merck alleged that the Arbitrator had
    ignored the plain language of the Last Chance Agreement and that
    the Award failed to draw its essence from the LCA.                      The Union
    disagreed, and counterclaimed for enforcement of the Award.                      On
    May   1,    2008,    the    parties    filed     cross-motions       for    summary
    judgment.
    On   August    12,    2008,    the   district    court   granted      summary
    judgment    to   Merck     and   denied    the   Union’s    cross-motion.      See
    Memorandum Opinion 1-2.           In so ruling, the court recognized the
    narrow scope of judicial review for an arbitration award, but
    concluded that the Award must be vacated in any event because it
    “contradicts        the    express    provisions       of    the     last   chance
    agreement.”      
    Id. at 5
    .       The court observed that “Moubray plainly
    agreed to comply with ‘all’ treatment program ‘requirements’ and
    7
    recommendations,                 which        unequivocally          include          punctual
    attendance.           He    also    plainly      agreed     that     he   was    subject    to
    immediate termination if ‘at any time’ he became noncompliant.”
    
    Id.
       The Memorandum Opinion observed that “[t]he agreement says
    absolutely        nothing         about      expulsion      or     discharge      from     the
    program.        Nor can the agreement be read to mean that Moubray is
    in compliance with all program requirements and recommendations
    so long as he has not been expelled.”                        
    Id. at 5-6
    .         Predicated
    on these observations, the court concluded that the Award “does
    not draw its essence from the last chance agreement” and must
    therefore be vacated.              
    Id. at 6
    .
    On August 18, 2008, the Union filed its timely notice of
    appeal,     and       we    possess       jurisdiction       pursuant      to    
    28 U.S.C. § 1291
    .
    II.
    We    review         de    novo    a   district      court’s    award      of    summary
    judgment.             Volvo      Trademark       Holding     Aktiebolaget         v.     Clark
    Machinery Co., 
    510 F.3d 474
    , 481 (4th Cir. 2007).                                     Judicial
    review     of    an    arbitration           award    in   the   collective      bargaining
    context is “extremely limited,” and “among the narrowest known
    to the law.”           Long John Silver’s Rests., Inc. v. Cole, 
    514 F.3d 345
    , 349 (4th Cir. 2008) (internal quotation marks omitted).                                 A
    reviewing       court       is    entitled      to    “determine      only      whether    the
    8
    arbitrator did his job — not whether he did it well, correctly,
    or reasonably, but simply whether he did it.”                            Mountaineer Gas
    Co. v. Oil, Chem. & Atomic Workers Int’l Union, 
    76 F.3d 606
    , 608
    (4th Cir. 1996).            “[A]s long as the arbitrator is even arguably
    construing or applying the contract and acting within the scope
    of his authority,” an arbitration award should be sustained,
    even   if    “a     court    is    convinced          he   committed     serious     error.”
    United Paperworkers Int’l Union v. Misco, Inc., 
    484 U.S. 29
    , 38
    (1987).
    III.
    A.
    Under      the       deferential       standard          applicable       here,        an
    arbitration award must be sustained if it “draws its essence”
    from   the     parties’      agreement.              United   Steelworkers      of     Am.    v.
    Enter.      Wheel    &   Car      Corp.,    
    363 U.S. 593
    ,    597    (1960).         An
    arbitration award draws its essence from the agreement so long
    as “[t]he arbitrator [does] not ignore the plain language of the
    contract.”        United Paperworkers Int’l Union v. Misco, Inc., 
    484 U.S. 29
    , 38 (1987); Norfolk & W. Ry. Co. v. Transp. Commc’ns
    Int’l Union, 
    17 F.3d 696
    , 700 (4th Cir. 1994) (observing that
    “an award that ignores the plain and unambiguous language of the
    arbitration         contract      does     not       ‘draw    its    essence’    from        the
    agreement”).          Notwithstanding         this         deferential      mandate,    “[a]n
    9
    arbitrator does not have carte blanche . . . to ‘dispense his
    own brand of industrial justice.’”                      U.S. Postal Serv. v. Am.
    Postal Workers Union, 
    204 F.3d 523
    , 527 (4th Cir. 2000) (quoting
    Enter.   Wheel,      
    363 U.S. at 597
    ).        Rather,      “an     arbitrator     is
    confined      to    interpretation         and    application         of    the    parties’
    agreement.”          
    Id.
        (internal       quotation        marks        omitted).        In
    resolving a labor dispute, an arbitrator may be called upon to
    make factual findings or to interpret the applicable agreement.
    See Misco, Inc., 
    484 U.S. at 38
    .                  So long as an arbitrator does
    so   within    the    confines      of    the    controlling        agreement       and   his
    interpretation        of    the    agreement      is   not   “wholly         baseless     and
    without reason,” Norfolk & W. Ry. Co., 
    17 F.3d at 700
    , “the
    courts have no business overruling [an arbitrator] because their
    interpretation         of    the     contract          is    different           from     [the
    arbitrator’s],” U.S. Postal Serv., 
    204 F.3d at 527
     (internal
    quotation marks omitted).
    B.
    In this proceeding, the parties agree that the underlying
    arbitration         proceedings          were    governed        by        the    discharge
    provisions of the Last Chance Agreement.                     Cf. Coca-Cola Bottling
    Co. v. Teamsters Local Union No. 688, 
    959 F.2d 1438
    , 1441 (8th
    Cir.   1992)       (concluding     that     comparable       last     chance      agreement
    superseded collective bargaining agreement).                          The LCA provided
    for Moubray’s immediate termination — without recourse to the
    10
    grievance and arbitration procedures established in the CBA —
    “[i]f at any time Mr. Moubray [became] non-compliant with the
    conditions       of        this   Agreement.”             J.A.     59.         The   Union   was
    authorized       to        dispute,       however,       “the     facts       upon   which   the
    Company        determined         that     Mr.     Moubray        was     non-compliant        or
    otherwise in violation of this Agreement.”                          
    Id.
           Pursuant to the
    LCA’s    authorization,             the    Union       challenged       and    arbitrated     the
    issue of whether Moubray had complied with the terms of the LCA.
    The parties do not dispute that the termination of Moubray was
    properly arbitrable.              They also do not dispute the fact that the
    Arbitrator possessed authority to consider and make an award
    concerning the matter.                  Rather, Merck argues that the Award of
    reinstatement          does       not      draw        its   essence          from   the     LCA.
    Accordingly, the terms of the LCA, and the Arbitrator’s view of
    those terms, are controlling here.
    The    Last    Chance       Agreement          required    that       Moubray   “comply
    with all recommendations and requirements as established by the
    Employee Assistance Plan and the Health Services Department.”
    J.A.     58.       In       making        the    Award,      however,         the    Arbitrator
    determined that “[t]here is no evidence that either the Plan or
    the [Health Services] Department established any requirements or
    had any recommendations other than those of the LIFE Recovery
    Program.”         Award       18.         As    such,    the     Award    incorporated       the
    requirements          of    the   Program        into    the     Last     Chance     Agreement,
    11
    concluding that “it is the requirements of that program which
    are controlling in this case.”          
    Id.
    The Program, in turn, imposed attendance requirements on
    Moubray and specified conditions for his continued participation
    therein.      Moubray was required to attend sessions three evenings
    per week and to notify staff if “extraordinary circumstances”
    prevented     his    attendance,     and     the    patient    handbook       of    the
    Program     provided    that     “[p]rompt    attendance       at   all      scheduled
    groups and activities is expected except when excused by [a]
    counselor, doctor, or nurse.”          J.A. 62-63.
    In   making   the    Award,   the     Arbitrator       agreed    with       these
    conditions, but nevertheless concluded that “the evidence still
    does    not   support      the   conclusion        that   Moubray      was    not    in
    compliance with the program requirements.”                   Award 19.       Although
    the Program Contract specified that certain behavior — such as
    chronic absenteeism — “may result in premature discharge from
    the program,” the Arbitrator explained in the Award that the
    evidence was “clear” that Moubray had not been discharged from
    the Program as of November 3, 2005.                See 
    id.
        The Award observed
    that the Letter, “upon which the Company relied so heavily and
    which states that ‘As of today’s date, Mr. Moubray is not in
    compliance with our program requirements’” also specified that
    Moubray “was told he would not be allowed back into the group
    until he first met with me.”               
    Id.
     (quoting J.A. 69).                  Thus,
    12
    although Michael concluded that Moubray was not in compliance
    with the Program’s requirements, he had not been discharged from
    the Program.       See 
    id.
          Accordingly, the Award concluded that the
    “LIFE Recovery Program was not consistent,” and, although it
    reported to Merck that Moubray was not in compliance with its
    requirements, Moubray had not been discharged from it.
    Finally,     the     Arbitrator     emphasized        in     the    Award       that
    “Moubray did not know or believe that he was not in compliance
    nor   did   he    have    any   reason    to   suspect      that    he    was    not    in
    compliance.”       Award 19.      Importantly, the Arbitrator found that
    Moubray     had     credibly      testified      that       he     and     the    other
    participants in the Program had been advised that they could
    make up sessions if they missed them.                See id. at 20.         The Award
    explained that the evidence corroborated Moubray’s testimony, in
    that he had not been discharged from the Program and had been
    permitted    to    make    up   earlier   sessions      that     had     been    missed.
    Thus, the Award concluded, “it was reasonable for [Moubray] to
    believe that he was able to miss sessions and to make them up. .
    . . He had no reason to believe he was not in compliance with
    the requirements of the program.”              Id.
    We agree with the district court that the Award considered
    Moubray’s    continued       participation      in    the    Program       —     or    the
    absence of a discharge from the Program — to be synonymous with
    his compliance with the Program’s requirements.                        We also agree
    13
    with the court that the Arbitrator relied, in part, on Moubray’s
    subjective       belief       concerning         his    compliance         with    the    Program
    requirements in concluding that Moubray had complied with the
    LCA.         Notwithstanding         these       shortcomings,         however,      the      Award
    must be sustained.             See Misco, Inc., 
    484 U.S. at 38
     (explaining
    that award should be sustained despite “serious error,” so long
    as    arbitrator       “is     even       arguably       construing         or    applying     the
    contract and acting within the scope of his authority”).
    Although       the     terms       of    the    LCA    —      requiring      Moubray        to
    “comply with all recommendations and requirements as established
    by     the     Employee       Assistance          Plan       and     the    Health       Services
    Department” — are plain and unambiguous, these terms alone are
    insufficient to resolve the issue presented to the Arbitrator.
    As     the    Award     recognized,            the    Program      established          the   only
    relevant       recommendations            and     requirements,            but    applied     them
    inconsistently.               Thus,        the        Program      required        Moubray         to
    unequivocally attend three weekly sessions, but statements of
    the     Program       staff    contradicted            this     attendance         requirement.
    And, although the Program established attendance requirements,
    it    also     provided       for    exceptions         —     such    as    an    excuse      by   a
    counselor, doctor, or nurse.                     Importantly, the Program Contract
    itself specified the consequences of violating it.                                 Rather than
    immediate       expulsion           for   an     unexcused         absence,       the    Program
    Contract provided that “chronic tardiness or absenteeism” “may
    14
    result      in     premature       discharge          from    the     program.”         J.A.    62
    (emphasis added).             Although the district court concluded that
    this provision “unequivocally include[d] punctual attendance,”
    Memorandum          Opinion     5,      such          language        provides        sufficient
    flexibility to justify the Arbitrator’s interpretation of it.
    Rather than “ignor[ing] the plain language of the contract,” the
    Arbitrator confined himself “to interpretation and application
    of the parties’ agreement,” U.S. Postal Serv., 
    204 F.3d at 527
    ,
    and    we     must    defer     to    his      interpretation            of    the    Program’s
    requirements.
    In these circumstances, it was entirely plausible for the
    Arbitrator to conclude that Moubray was yet in compliance with
    the “requirements” of the Program.                      See Norfolk & W. Ry. Co., 
    17 F.3d at 700
     (explaining that where arbitrator confines himself
    to    plain      language     of     contract,         arbitration        award       should    be
    confirmed          unless     “wholly       baseless           and     completely       without
    reason”).          The Arbitrator interpreted the LCA by looking to and
    applying the requirements of the Program.                             He carefully examined
    the   Program’s        documents      and      explained         his    view     of    what    was
    required.          Even if we were to disagree with the Arbitrator’s
    interpretation         and     reasoning,         we         cannot    conclude       that     his
    reasoning is wholly baseless or completely without reason.                                     Put
    simply,       we     are    entitled        to        “determine        only     whether       the
    arbitrator did his job — not whether he did it well, correctly,
    15
    or reasonably, but simply whether he did it.”   Mountaineer Gas
    Co. v. Oil, Chem. & Atomic Workers Int’l Union, 
    76 F.3d 606
    , 608
    (4th Cir. 1996).    Accordingly, the Award “draws its essence”
    from the Last Chance Agreement and, as a result, we must reverse
    the ruling of the district court and direct enforcement of the
    Award.
    IV.
    Pursuant to the foregoing, we reverse the district court
    and remand for enforcement of the Award.
    REVERSED AND REMANDED
    16