Media General Operations, Inc. v. Richmond Newspapers Professional Ass'n , 36 F. App'x 126 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MEDIA GENERAL OPERATIONS, 
INCORPORATED, formerly known as
Richmond Newspapers,
Incorporated,
Plaintiff-Appellant,
 No. 01-1953
v.
RICHMOND NEWSPAPERS PROFESSIONAL
ASSOCIATION,
Defendant-Appellee.

PAMELA J. MASTROPAOLO; RICHMOND 
NEWSPAPERS PROFESSIONAL
ASSOCIATION,
Plaintiffs-Appellees,
v.
 No. 01-1962
MEDIA GENERAL OPERATIONS,
INCORPORATED, formerly known as
Richmond Newspapers,
Incorporated,
Defendant-Appellant.

2 MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS
PAMELA J. MASTROPAOLO; RICHMOND 
NEWSPAPERS PROFESSIONAL
ASSOCIATION,
Plaintiffs-Appellants,
v.
 No. 01-1980
MEDIA GENERAL OPERATIONS,
INCORPORATED, formerly known as
Richmond Newspapers,
Incorporated,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CA-00-633-3, CA-00-644-3)
Argued: April 2, 2002
Decided: June 7, 2002
Before WILKINS, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished opinion. Judge Traxler wrote the majority
opinion, in which Judge Wilkins joined. Judge Gregory wrote an
opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: James V. Meath, WILLIAMS, MULLEN, CLARK &
DOBBINS, Richmond, Virginia, for Appellant. Jay Joseph Levit,
LEVIT, MANN & HALLIGAN, P.C., Richmond, Virginia, for
Appellees. ON BRIEF: Shannon P. Garbett, WILLIAMS, MULLEN,
CLARK & DOBBINS, Richmond, Virginia, for Appellant.
MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS 3
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
TRAXLER, Circuit Judge:
Media General Operations, Incorporated, publisher of the Rich-
mond Times-Dispatch newspaper, appeals from the district court’s
refusal to vacate an arbitration award reinstating Pamela Mastropaolo,
who had been terminated by Media General. Mastropaolo cross-
appeals, challenging the district court’s denial of her request for attor-
ney’s fees incurred in connection with her efforts to enforce the arbi-
tration award. We affirm.
I.
Pamela Mastropaolo began working for Media General in 1974.
During her employment, Mastropaolo was a member of the Richmond
Newspapers Professional Association, which had entered into a col-
lective bargaining agreement with Media General. The collective bar-
gaining agreement provided that "[t]here shall be no dismissals except
for just and sufficient cause, which shall include but not be confined
to: reduction of force, willful neglect of duty, gross misconduct and
incompetency." J.A. 300. The agreement also provided that, upon
request, an employee "shall receive written notice from the employer
stating the cause of his or her dismissal." J.A. 300. The agreement did
not define "gross misconduct."
In February 1999, Mastropaolo attended the Mid-Atlantic Quilt
Festival. Although she attended the event for purely personal reasons
(that is, she was not assigned by the newspaper to write a story about
the festival), she used her press identification to gain free admission
to the weekend festival. Mastropaolo began stealing quilting materials
on the first day of the festival and continued the next day, stealing
approximately $900 in fabric and other quilting supplies. She was
caught by a vendor on the second day of the festival and was arrested.
Mastropaolo was charged with two felony counts of larceny, and
4 MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS
Media General suspended her without pay, in accordance with its pol-
icy regarding employees charged with felonies.
Mastropaolo hired an attorney to represent her on the criminal
charges. The attorney recommended that Mastropaolo plead guilty to
the charges and explained that there was a strong likelihood that the
judge at sentencing would reduce the felony charges to misdemea-
nors. When Mastropaolo told Bill Millsaps, the newspaper’s execu-
tive editor, about her attorney’s recommendation, Millsaps told her
that if she pleaded guilty to or was convicted of a felony, they "didn’t
have anything to talk about. There’s nothing [he could] do." J.A. 50.
However, Millsaps told Mastropaolo that if she pleaded guilty to or
was convicted of a misdemeanor, "then [they] might have something
to talk about." J.A. 50.
Pursuant to a plea agreement, Mastropaolo thereafter pleaded
guilty to one misdemeanor count of petit larceny and one felony count
of grand larceny. The agreement reserved to Mastropaolo the right to
request that the trial court amend the remaining felony charge to a
misdemeanor charge. At the subsequent sentencing proceeding, the
judge reduced the felony count to a misdemeanor, and Mastropaolo
was formally found to be guilty of two misdemeanor petit larceny
charges.
On June 1, 1999, after Mastropaolo pleaded guilty but before the
felony charge was reduced by the trial judge, Media General termi-
nated Mastropaolo. The company sent Mastropaolo a letter notifying
her of its action, stating that she was being terminated "because of
[her] guilty plea to a felony charge." J.A. 312. The initial draft of the
letter specified Mastropaolo’s misconduct at the festival as a reason
for her termination, but the letter was revised to give only the felony
guilty plea as the basis for the termination. Before terminating
Mastropaolo, Media General had contacted the prosecutor in charge
of Mastropaolo’s case and learned that Mastropaolo had pleaded
guilty to a felony and a misdemeanor charge and that it was possible
the felony charge could be reduced at the upcoming sentencing hear-
ing.
On June 2, Mastropaolo’s criminal attorney sent Media General a
letter stating that the "case is not over yet" and that "there is a better
MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS 5
than even chance" that the judge would allow the felony plea to be
amended to a misdemeanor plea. J.A. 322. The attorney asked that the
company reconsider its termination decision and at least wait until the
July 29 final court date. Media General refused to reconsider the ter-
mination.
The union filed a formal grievance on Mastropaolo’s behalf. Media
General denied the grievance, and the matter proceeded to arbitration,
in accordance with the terms of the collective bargaining agreement.
The arbitrator ruled in favor of Mastropaolo and ordered her to be
reinstated after serving a 30-day suspension without pay.
Media General then commenced this action, asking the district
court to vacate the arbitration award because it was inconsistent with
the terms of the collective bargaining agreement. For her part,
Mastropaolo requested that the district court enforce the arbitration
award, and she also sought an award of attorney’s fees incurred in
connection with her enforcement action. The district court refused to
vacate the award and granted summary judgment in favor of Mastro-
paolo on her enforcement action. The court, however, denied Mastro-
paolo’s request for attorney’s fees. These appeals followed.
II.
A.
The Labor Management Relations Act gives federal courts the
authority to review arbitration awards in labor disputes. See 29
U.S.C.A. § 185 (West 1998); District 17, United Mine Workers of
America v. Island Creek Coal Co., 179 F.3d 133, 136-37 (4th Cir.
1999). However, if reviewing courts were free "to delve into the mer-
its of an arbitration award, then the federal policy of settling labor dis-
putes by arbitration would be seriously undermined. Such judicial
second-guessing would transform a binding process into a purely
advisory one, and ultimately impair the value of arbitration for labor
and management alike." United States Postal Serv. v. American
Postal Workers Union, 204 F.3d 523, 527 (4th Cir. 2000) (citations,
internal quotation marks, and alteration omitted); see also United
Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S.
593, 596 (1960) ("The federal policy of settling labor disputes by
6 MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS
arbitration would be undermined if courts had the final say on the
merits of the awards."). The scope of judicial review of arbitration
awards, therefore, is "among the narrowest known to the law." Union
Pac. R.R. v. Sheehan, 439 U.S. 89, 91 (1978) (per curiam) (internal
quotation marks omitted).
A court reviewing a labor arbitration award is limited to "deter-
min[ing] only whether the arbitrator did his job—not whether he did
it well, correctly, or reasonably, but simply whether he did it." Moun-
taineer Gas Co. v. Oil, Chem. & Atomic Workers Int’l Union, 76 F.3d
606, 608 (4th Cir. 1996). In doing his job, the arbitrator "is confined
to interpretation and application of the collective bargaining agree-
ment; he does not sit to dispense his own brand of industrial justice.
. . . [H]is award is legitimate only so long as it draws its essence from
the collective bargaining agreement." Enterprise Wheel, 363 U.S. at
597. Thus, "as long as the arbitrator is even arguably construing or
applying the contract and acting within the scope of his authority, that
a court is convinced he committed serious error does not suffice to
overturn his decision." United Paperworkers Int’l Union v. Misco,
Inc., 484 U.S. 29, 38 (1987) (emphasis added). While an award that
ignores the plain language of the collective bargaining agreement can-
not be said to draw its essence from that agreement, see Mountaineer
Gas, 76 F.3d at 608, "a court should not reject an award on the ground
that the arbitrator misread the contract," Misco, 484 U.S. at 38.
B.
Media General contends that the arbitration award in this case did
not draw its essence from the collective bargaining agreement. Media
General’s primary argument is that the arbitrator concluded (either
explicitly or implicitly) that Mastropaolo’s conduct amounted to gross
misconduct, but the arbitrator, apparently swayed by personal sympa-
thy for Mastropaolo, nonetheless refused to uphold the termination.
Because the collective bargaining agreement expressly provides that
gross misconduct shall constitute just and sufficient cause for dis-
charge, Media General contends that the arbitrator violated the plain
language of the collective bargaining agreement when he refused to
uphold the termination. See, e.g., Mountaineer Gas, 76 F.3d at 610(vacating arbitration award because "the arbitrator blatantly ignored
the unambiguous language of the [collective bargaining agreement]
MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS 7
and fashioned a modified penalty that appealed to his own notions of
right and wrong"); Delta Queen Steamboat Co. v. District 2 Marine
Eng’rs Beneficial Ass’n, 889 F.2d 599, 604 (5th Cir. 1989) ("If a col-
lective bargaining agreement defines ‘proper cause’ to include a non-
exhaustive list of offenses, an arbitrator cannot ignore the natural
consequence of his finding that a listed offense was committed.").
As the district court explained, the opinion issued by the arbitrator
in this case is "not a model of clarity." J.A. 545. The opinion is sus-
ceptible of the construction urged by Media General—that the arbitra-
tor concluded that Mastropaolo’s conduct amounted to gross
misconduct, but still refused to uphold the termination. As noted
above, Media General insists that such a construction of the opinion
requires that the award be vacated. Mastropaolo, however, contends
that such a construction would not preclude enforcement of the
award. See, e.g., Misco, 484 U.S. at 41 ("Normally, an arbitrator is
authorized to disagree with the sanction imposed for employee mis-
conduct."); Enterprise Wheel, 363 U.S. at 597 ("When an arbitrator
is commissioned to interpret and apply the collective bargaining
agreement, he is to bring his informed judgment to bear in order to
reach a fair solution of a problem. This is especially true when it
comes to formulating remedies.").
We need, not, however, decide whether it would have been proper
for the arbitrator to order reinstatement if the arbitrator concluded that
Mastropaolo’s actions amounted to gross misconduct. As we explain
below, the arbitration opinion reasonably may be read in a way that
shows the award drew its essence from the collective bargaining
agreement. And because the award may be so read, we must reject the
reading urged by Media General. See Enterprise Wheel, 363 U.S. at
598 ("A mere ambiguity in the opinion accompanying an award,
which permits the inference that the arbitrator may have exceeded his
authority, is not a reason for refusing to enforce the award."); ANR
Advance Transp. Co. v. International Bhd of Teamsters, 153 F.3d
774, 778 (7th Cir. 1998) ("We resolve any reasonable doubt about
whether an award draws its essence from the collective bargaining
agreement in favor of enforcing the award." (internal quotation marks
and alteration omitted)); Industrial Mut. Ass’n v. Amalgamated Work-
ers, Local Union No. 383, 725 F.2d 406, 410 (6th Cir. 1984) ("The
Supreme Court has made it clear . . . that reviewing courts are not to
8 MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS
vacate awards merely because an arbitrator’s reasoning could be
interpreted in several ways, one of which would lead to the conclu-
sion that the award does not draw its essence from the contract.").
In his order, the arbitrator stated that "[o]ne of the most important
tenets of disciplinary proceedings is that the Arbitrator must look to
the charge stated by the Company at the time it acted to discharge,
and that there can be no significant additions or cha[n]ges to the accu-
sation which was said by it to be why it acted as it did." J.A. 407-08.
The arbitrator then discussed the significance of Media General’s
June 1 letter to Mastropaolo (which explained that she had been ter-
minated because she pleaded guilty to a felony) in light of the require-
ment in the collective bargaining agreement that Media General
inform employees of the reason for dismissal. The arbitrator found it
significant that Media General had deleted from the first draft of the
June 1 letter any reference to Mastropaolo’s conduct at the festival
and had made a specific decision to rely solely on the felony guilty
plea to justify the discharge, noting that "the narrow charge was [not]
the result of a mistake or other sloppy arrangements." J.A. 408. The
arbitrator therefore refused to consider Media General’s claims that
it fired Mastropaolo because of the serious nature of her conduct,
regardless of whether the crime to which she pled was treated as a fel-
ony or a misdemeanor, concluding "that would inject reasons for the
discharge that were not stated at the time it was imposed." J.A. 411.
The arbitrator concluded that while the statement in the letter that
Mastropaolo pleaded guilty to a felony was "formally accurate," the
statement "in reality [was] not substantially descriptive of all that hap-
pened here," J.A. 411, given that the felony charge was later reduced
to a misdemeanor. As the arbitrator explained, Media General made
its decision to terminate Mastropaolo "almost two months before
[Mastropaolo’s] ultimate conviction of the reduced counts of two mis-
demeanors and not of a felony and before the criminal process had
ended." J.A. 408. Thus, the arbitrator determined that whether or not
the underlying conduct could be considered gross misconduct was
irrelevant; instead, the only question the arbitrator considered was
whether pleading guilty to a felony (the reason given in the letter) was
just and sufficient cause for Mastropaolo’s termination.
The arbitrator concluded that the "just and sufficient cause" lan-
guage used in the collective bargaining agreement must be interpreted
MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS 9
to mean more than "just cause." That is, the arbitrator determined that
by including "sufficient" in the agreement,
[t]he parties simply must have had some thought that they
would impose some greater duty on the Company than if the
parties’ negotiated Agreement said only that there must be
"just cause." The phrase "and sufficient" thus must be seen
here as imposing a heavier burden on Management than
would a mere "just cause" standard. The best the Arbitrator
can do, therefore, is to read "and sufficient" as adding a
requirement that the "just cause" be weighty, grave, and
serious, to some degree at least over what would be included
in "just cause," standing alone.
J.A. 410.
As we read the opinion, the arbitrator concluded that pleading
guilty to a felony was not just and sufficient cause, at least in this
case. Given the executive editor’s statement that Mastropaolo might
not lose her job if she pleaded guilty to a misdemeanor, and the com-
pany’s sole reliance on the felony guilty plea when it explained why
she was terminated, the arbitrator concluded that Mastropaolo’s guilty
plea to a charge that was only briefly a felony was not just and suffi-
cient cause, since the felony charge was reduced to a misdemeanor
charge shortly after the guilty plea, an outcome that Media General
knew was possible when it fired her. Thus, even if stealing and misus-
ing a press pass should be considered gross misconduct under the col-
lective bargaining agreement, that would not justify Mastropaolo’s
termination, since Media General stated it fired her because she
pleaded guilty to a felony, not because of the nature of the underlying
conduct.
The arbitration award, therefore, flowed from the arbitrator’s inter-
pretation of two provisions of the collective bargaining agreement—
the requirement that Media General give notice of its reason for ter-
mination and the requirement that the termination requires just and
sufficient cause. While we might not agree with the arbitrator’s inter-
pretation of these provisions, the interpretation is rational and plausi-
ble, in that it attempts to give effect to every term of the agreement.
See Bruce Hardwood Floors v. UBC, Southern Council of Indus.
10 MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS
Workers, 103 F.3d 449, 451-52 (5th Cir. 1997) ("In applying the
essence test, we have stated that an arbitration award must have a
basis that is at least rationally inferable, if not obviously drawn, from
the letter or purpose of the collective bargaining agreement. The
award must, in some logical way, be derived from the wording or pur-
pose of the contract." (internal quotation marks and alterations omit-
ted)).
To be sure, the arbitrator determined that the termination was not
justified, at least in part, by considering certain mitigating factors,
such as Mastropaolo’s length of service with the newspaper and the
arbitrator’s belief that Mastropaolo would not engage in similar con-
duct again. But the arbitrator’s construction of the collective bargain-
ing agreement made irrelevant the question of whether stealing is
gross misconduct per se, and instead required the arbitrator to deter-
mine whether the reason given by Media General for the termination
amounted to just and sufficient cause. Nothing in the collective bar-
gaining agreement rendered improper the arbitrator’s consideration of
such mitigating factors when answering what the arbitrator viewed as
the dispositive question—whether pleading "guilty to a preliminary
charge of felony, later reduced to a misdemeanor, constitutes just and
sufficient cause for [Mastropaolo’s] discharge." J.A. 413.
Because the arbitration award reasonably can be interpreted in a
way that draws its essence from the collective bargaining agreement,
we must accept that interpretation of the award over that urged by
Media General.* See Enterprise Wheel, 363 U.S. at 597; ANR
Advance Transp. Co., 153 F.3d at 778. Therefore, even if the arbitra-
tor’s interpretation of the agreement was wrong, we must defer to it.
See Misco, 484 U.S. at 38 ("[A]s long as the arbitrator is even argu-
ably construing or applying the contract and acting within the scope
of his authority, that a court is convinced he committed serious error
does not suffice to overturn his decision."); Upshur Coals Corp. v.
United Mine Workers, 933 F.2d 225, 230 (4th Cir. 1991) ("We do not
and need not decide whether any of these analyses constitute the best
*This conclusion makes it unnecessary to consider Media General’s
alternative argument that if the arbitrator did not find Mastropaolo’s con-
duct to be gross misconduct, then that failure was "clear arbitral error"
that requires vacating of the arbitration award. Brief of Appellant at 33.
MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS 11
or most accurate reading of the contract. We hold only that they are
plausible readings of the agreement. . . . Consequently, under our def-
erential standard of review, we cannot say that the arbitration award
failed to draw its essence from the agreement.").
III.
In her cross-appeal, Mastropaolo contends that the district court
erred by denying her request for an award of attorney’s fees incurred
in her action to enforce the arbitration award. We disagree.
Although an award of attorney’s fees is not specifically authorized
by the Labor Management Relations Act, fees may be awarded
against a party who unjustifiably refuses to abide by an arbitrator’s
award. See United Food & Commercial Workers v. Marval Poultry
Co., 876 F.2d 346, 350 (4th Cir. 1989). "Where a challenge goes to
the fundamental issues of arbitrability or of whether an arbitration
award draws its essence from the contract, the standard for assessing
its justification is . . . whether it has any arguable basis in law." Id.
at 351 (internal quotation marks omitted). Under this standard, such
a challenge is justified unless it "literally [has] no reasonably arguable
legal support." Id.We agree with the district court that Media General’s challenge
went to the question of whether the arbitration award drew its essence
from the collective bargaining agreement, and that, in view of the
"confusing language used in the arbitrator’s opinion, it cannot be said
that Media General’s action literally had no legal support." J.A. 552
(internal quotation marks and alteration omitted). Accordingly, Media
General’s challenge to the award was sufficiently justified, and
Mastropaolo’s request for attorney’s fees was properly denied. Cf.
Westvaco Corp. v. United Paperworkers Int’l Union, 171 F.3d 971,
978 n.3 (4th Cir. 1999) (concluding that arbitration award should be
enforced, but denying employee’s request for attorney’s fees because
the employer "did not challenge the arbitration award ‘without justifi-
cation’").
IV.
If this court were deciding the propriety of Media General’s termi-
nation of Mastropaolo in the first instance, we likely would have
12 MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS
interpreted the collective bargaining agreement quite differently than
did the arbitrator, and we likely would have concluded that Mastro-
paolo’s conduct amounted to gross misconduct warranting discharge.
But this court is not free "to delve into the merits of an arbitration
award," American Postal Workers Union, 204 F.3d at 527, and we
may not refuse to enforce an arbitration award simply because we
believe the arbitrator’s decision was wrong, see Misco, 484 U.S. at 38("[A]s long as the arbitrator is even arguably construing or applying
the contract and acting within the scope of his authority, that a court
is convinced he committed serious error does not suffice to overturn
his decision."). Under the highly deferential standard of review appli-
cable in this case, we are constrained to conclude that the arbitrator’s
award drew its essence from the collective bargaining agreement and
that the award must therefore be enforced. But because Media Gener-
al’s challenge to the award was sufficiently justified, Mastropaolo is
not entitled to an award of attorney’s fees. Accordingly, the decision
of the district court is hereby affirmed.
AFFIRMED
GREGORY, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority’s recitation of the standard of review that
governs this case. See ante at 5-6. "[I]f an arbitrator is even arguably
construing or applying the contract and acting within the scope of his
authority, the fact that a court is convinced he committed serious error
does not suffice to overturn his decision. It is only when the arbitrator
strays from interpretation and application of the agreement and effec-
tively dispenses his own brand of industrial justice that his decision
may be unenforceable." Major League Baseball Players Assoc. v.
Garvey, 532 U.S. 504, 509 (2001) (quotations and citations omitted).
The majority’s application of this standard, however, is mystifying.
Here, the arbitrator was not even "arguably" interpreting the contract.
To be sure, the arbitrator’s decision purports to interpret the contract,
and the decision certainly references the contract. But that cannot be
enough, otherwise any review would be effectively foreclosed so long
as the arbitrator did not openly flout the contract. Our review is not
that narrow.1
1
I concur in the majority’s resolution of the cross-appeal. Ante at 11.
The district court did not err in denying Ms. Mastropaolo’s request for
an award of attorney’s fees. See United Food and Comm. Workers v.
Marval Poultry Co., 876 F.2d 346, 350 (4th Cir. 1989).
MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS 13
I.
The proper resolution of this case depends on an understanding of
the basic mechanics of the contract and the criminal plea process.
Under the contract, "gross misconduct" is "just and sufficient cause"
for dismissal. There is no room for additional requirements. Other cir-
cumstances may or may not amount to "just and sufficient cause," but
"gross misconduct" always does. The termination clause states:
There shall be no dismissals except for just and sufficient
cause, which shall include but not be confined to: reduction
of force, willful neglect of duty, gross misconduct and
incompetency.
J.A. 300. If "just and sufficient cause" exists, then Media General has
a contractual right to terminate employment. Whether the arbitrator
thinks termination is the just result—in any sense that untethers the
term from "gross misconduct"—is irrelevant.
Regarding the plea process, when an individual pleads guilty to a
felony, he or she is necessarily admitting to conduct that would sup-
port a felony conviction.2 Jones v. Commonwealth, 513 S.E.2d 431,
510 (Va. 1999) ("A guilty plea normally consists of both a waiver of
constitutional rights and an admission of guilt. Ordinarily, a judgment
of conviction resting on a plea of guilty is justified by the defendant’s
admission that he committed the crime charged against him and his
consent that judgment be entered without a trial of any kind. The plea
usually subsumes both elements . . . even though there is no separate,
express admission by the defendant that he committed the particular
acts claimed to constitute the crime charged in the indictment."). Ms.
2
A familiar example of this acknowledgment of factual guilt is that
portion of the plea colloquy when the judge asks the defendant: "Are you
pleading guilty because you are guilty?" Va. Sup. Ct. R. 3A:8; id. app.
Form 6; see also Fed. R. Crim. Pro. 11(f). If the defendant does not
answer in the affirmative, the judge will typically refuse to enter the plea.
In certain cases, a defendant may plead guilty but not admit to factual
guilt. Such a plea is known as an Alford plea. North Carolina v. Alford,
400 U.S. 25 (1970); Jones, 513 S.E.2d at 435. There is no indication that
Ms. Mastropaolo entered an Alford plea.
14 MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS
Mastropaolo pleaded guilty to a felony. She was convicted of a fel-
ony. The conviction was later reduced to a misdemeanor. But she has
never asserted that her conduct did not support a felony conviction.
By pleading guilty to a felony, she has clearly admitted that she
engaged in felonious conduct. The later reduction in the conviction
was merely a determination that Ms. Mastropaolo was not justly
deserving of a felony conviction or the criminal punishment that
would follow from such a conviction.
II.
With this background in mind, I turn to the letter of June 1, 1999,
in which Media General terminated Ms. Mastropaolo’s employment.
The asserted reason for her dismissal was her "guilty plea to a felony
charge[.]" The majority is correct that the letter did not mention the
specific conduct underlying the criminal charges. It is readily appar-
ent why this is so. Rather than accuse Ms. Mastropalo of specific con-
duct which may or may not turn out to be true in every significant
detail, Media General made the blanket assertion that all felony con-
duct is "gross misconduct" as defined by the contract. That way, dis-
putes regarding the minutiae of what did or did not happen were
avoided. Media General simply tied its decision to Ms. Mastropaolo’s
admission of guilt.
As a result of Media General’s reliance on the felony plea, only
one issue remained for the arbitrator: Does a felony plea (and the
attendant admission of guilt) constitute "gross misconduct?" I suppose
reasonable people might disagree on that question. But everyone must
agree that if the answer to that question is yes, then the arbitrator’s
decision is flatly inconsistent with the contract. All one need do is
read the contract to see that no other interpretation is even plausible:
"[J]ust and sufficient cause . . . shall include . . . gross misconduct."
The arbitrator, whose view is the one that matters, directly answered
the question. He stated: "[E]ven though grievant’s plea of guilty to a
felony was formally accurate as a charge of ‘gross misconduct’ as of
June 1, it cannot rise in light of all circumstances of this case to ‘just
and sufficient cause’ for grievant’s discharge." J.A. 411. This state-
ment is the only significant mention of "gross misconduct" in his
opinion, and should have ended the arbitration, for there was nothing
left for the arbitrator to do but give effect to the plain language of the
MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS 15
contract. United Paperworkers Int’l Union v. Misco, 484 U.S. 29, 38
(1987) ("The arbitrator may not ignore the plain language of the con-
tract[.]"); Delta Queen Steamboat Co. v. District 2, Marine Engineers
Assoc., 889 F.2d 599, 604 (5th Cir. 1989) ("If a collective bargaining
agreement defines ‘proper cause’ to include a nonexhaustive list of
offenses, an arbitrator cannot ignore the natural consequences of his
finding that a listed offense was committed."); Mountaineer Gas Co.
v. Oil, Chemical & Atomic Workers Int’l Union, 76 F.3d 606, 610
(4th Cir. 1996).
The arbitrator’s analysis, however, went far beyond his finding of
"gross misconduct." The arbitrator’s stated reason for not finding in
favor of Media General was that "in light of all the circumstances"
there was not "just and sufficient cause" for Ms. Mastropaolo’s dis-
charge. It was at this point—in the slip from "gross misconduct" to
"just and sufficient cause"—that the arbitrator let himself loose from
the contract. The arbitrator’s reasoning, although textually hooked to
the contract, inserted his own notions of "industrial justice" into the
case. Garvey, 532 U.S. at 509. He accomplished this by interpreting
"just and sufficient cause" to require more than "gross misconduct."
So much is apparent from his conclusion that the gross misconduct
did not "rise to the level" of just and sufficient cause. As noted at the
outset, this was an impermissible interpretation. In fact, it was not an
interpretation at all. United States Postal Service v. American Postal
Workers Union, 204 F.3d 523, 525 (4th Cir. 2000) ("Because the arbi-
trator completely rewrote the collective bargaining agreement . . ., we
affirm the district court’s judgment [vacating the award].").
The arbitrator made several findings to support his conclusion that
Ms. Mastropaolo did not deserve the punishment of dismissal. In
addition to the later reduction of Ms. Mastropaolo’s conviction, the
arbitrator considered other factors:
The upshot of all that was that it counted in the Arbitrator’s
assessment of all evidence and arguments here that grievant
had twenty-five years of excellent service for this newspa-
per, that this incident was totally out of character with that
long and excellent service, that credible evidence supported
the view that grievant’s depression and impulse-control
problems very likely had caused this and that those prob-
16 MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS
lems had been dealt with satisfactorily over the twelve years
of her past psychiatric and medication treatment by her psy-
chiatrist, so that, with her present treatment regimen, it was
not at all likely to occur again, and that the evidence, aside
from conjecture, of significant harm to the Newspaper’s rep-
utation in the public eye was not sufficient to prohibit her
returning to work, especially since there was no newspaper
coverage of the event and actual knowledge of it by only a
relatively few, only one of whom had drawn any negative
conclusions from it about the Newspaper.
J.A. 412. These factors would be highly relevant to the question of
whether there is "just and sufficient cause"—as defined independent
of "gross misconduct"—for dismissal, but the arbitrator did not even
suggest that they were relevant to the issue of "gross misconduct."
If the majority is correct that the arbitrator refused to consider "the
serious nature of [Mastropaolo’s] conduct, regardless of whether the
crime to which she pled was treated as a felony or a misdemeanor,"
ante at 8, then on what basis did the arbitrator consider the mitigating
evidence, which clearly was part of the conduct? I think it is apparent
that he did consider Ms. Mastropaolo’s conduct and the felonious
nature of the conduct. He just refused to acknowledge the natural
implication of the felony plea, in order to get to the issue of "just and
sufficient cause." If the felony plea did not constitute gross miscon-
duct (and the arbitrator clearly stated that it did), and that was the only
basis on which Ms. Mastropaolo’s dismissal rested, then how did the
arbitrator conclude that Ms. Mastropaolo should receive any sanc-
tion? Again, it is clear that the arbitrator did consider the underlying
conduct, he just did so in an impermissible manner. That is, he con-
sidered the conduct as an excuse to shift the issue from "gross mis-
conduct" to "just and sufficient cause." At the same time, he admitted
that the conduct led to a felony plea, and that such a plea was an
admission of "gross misconduct."
As a non-exclusive list of grounds for termination, there is argu-
ably (even probably) a catch-all category that would permit the defini-
tion given to "just and sufficient cause" by the arbitrator. That is, if
Media General’s reason for dismissal did not fall within one of the
enumerated examples of "just and sufficient cause," the company
MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS 17
might have argued that it nevertheless had "just and sufficient cause"
for termination. But Media General was not relying on any catch-all
category, so any reliance on a definition of "just and sufficient cause"
without regard to "gross misconduct" was simply irrelevant. Not
merely unreasonable, but irrelevant, and consequently demonstrably
at odds with the language of the contract.
The majority accepts the arbitrator’s view that the "dispositive
question," ante at 10, was whether the plea of guilty and all the sur-
rounding circumstances fell within his free-standing interpretation
"just and sufficient cause" for dismissal. That was patently not the
dispositive question—any more than whether Ms. Mastropaolo quali-
fied for dismissal under one of the other enumerated grounds, such as
"incompetency" or "reduction of force," was the dispositive question.
The only issue was whether a felony plea constituted "gross miscon-
duct." The majority describes the sequence of the arbitrator’s attempt
to reason away from that issue, but fails to explain how that reasoning
is plausible. The arbitrator’s ultimate finding was based on an answer
to a question not put to him. His reasoning defies logic, and is non-
responsive to boot. As a result, Media General did not receive that for
which it had bargained—an arbitrator that would base his decision on
an interpretation of the contract. United Steelworkers of America v.
Enterprise Wheel and Car Corp., 363 U.S. 593, 599 (1960).
III.
This case is strikingly similar to Mountaineer Gas Co. v. Oil,
Chemical & Atomic Workers Int’l Union, 76 F.3d 606 (4th Cir. 1996).
In that case, the collective bargaining agreement limited the employ-
er’s right to discharge to "proper cause." Id. at 608. The company’s
drug policy, which was incorporated into the agreement, provided for
dismissal of employees who tested positive for drugs. Id. at 609. A
dismissed employee, who tested positive for drugs, filed a grievance,
which was sent to arbitration. The arbitrator found that the employee
had tested positive, but refused to find in favor of the employer. The
arbitrator cited the employee’s 15 years of service to the company and
the harshness of the drug policy. Id. at 609-10. We vacated the arbi-
tration award, stating that the arbitrator lacked the authority to ignore
the language of the contract. Id. We specifically rejected the employ-
ee’s reliance on the "proper cause" standard contained in the contract,
18 MEDIA GENERAL OPERATIONS v. RICHMOND NEWSPAPERS
stating: "[T]he words ‘proper cause’ of the [collective bargaining
agreement] cannot be the loophole through which the arbitrator
bypasses the Drug Policy’s mandatory language to implement his
own brand of industrial justice." Id. The same result should obtain
here. We should recognize the arbitrator’s reliance on "just and suffi-
cient cause" for what it is—an attempt to bypass a finding of "gross
misconduct" in order to pack the decision with his own notions of
right and wrong.
IV.
An arbitrator is obliged to apply the collective bargaining agree-
ment as written. "When an arbitrator’s words manifest an infidelity to
this obligation, courts have no choice but to refuse enforcement of the
award." Enterprise Wheel, 363 U.S. at 597.
I respectfully concur in part and dissent in part.