Opinion
Civil No. CCB-03-1384
May 4, 2004
MEMORANDUM
On July 20, 2001, Simkins Industries, Inc. ("Simkins") terminated an employee who was absent from work on a medical excuse but failed to provide a second doctor's note when his first note expired. When the employee later filed a grievance contesting his termination, an arbitrator ordered his reinstatement, reasoning, first, that the employee's grievance was timely despite a nine month delay because the employee lacked written notice of his discharge, and second, that Simkins's termination of the employee despite his prior medical excuse was "unjust" under the terms of the applicable collective bargaining agreement. Simkins now seeks to vacate the arbitral award pursuant to § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a). The employee's union, joined by its national affiliate, has counterclaimed to enforce the order. Both parties have filed motions for summary judgment (docket nos. 25, 27), and the motions have been fully briefed, making oral argument unnecessary. Local Rule 105.6. In keeping with the "extremely limited" standard of review in labor arbitration cases, U.S. Postal Serv. v. Am. Postal Workers Union, 204 F.3d 523, 527 (4th Cir. 2000) — one of the "narrowest [forms of review] known to the law," see id. (quoting Union Pac. R.R. v. Sheehan, 439 U.S. 89, 91 (1978)) — I have determined that the arbitrator's ruling in this case was lawful, and I will therefore grant the union's motion while denying the employer's.
I. BACKGROUND
A. Factual Background
The discharged employee in this case is Damien Mitchell, formerly a "ream cutter" at a Simkins Industries paper plant. Mr. Mitchell worked at the plant for roughly eighteen months, slicing paper and cardboard to fit customer orders. Then, on June 22, 2001, Mr. Mitchell suffered debilitating neck and shoulder injuries in an automobile accident. On July 5, 2001, Mr. Mitchell's doctor at the Baltimore Back Pain Clinic provided a note excusing Mr. Mitchell's absence from work. "This is to certify that Damien Mitchell is under my professional care," the doctor wrote. "In order to avoid aggravation of his/her condition, I recommend that he/she be excused from work until approximately July 11, 2001." (Trotter Arbitral Award at 1, PL's Mot. for Summ. J. Ex. 1.) When July 11 arrived, the doctor provided an identical second note excusing Mr. Mitchell's absence through August 16, 2001, but Mr. Mitchell evidently failed to deliver the second note to his employer. Consequently, Simkins terminated Mr. Mitchell on July 20, 2001, citing a clause in the applicable collective bargaining agreement that provides as follows: "If an employee is absent from work for three (3) scheduled work days without the Company being notified on any of these three (3) days, he may be dropped from the payroll unless it is determined that it was not reasonably possible for him to notify the Company. It is not the intent of this Section that an employee must call in every three (3) days." (CBA Art. X § 7, PL's Mot. for Summ. J. Ex. 2.) Simkins notified Mr. Mitchell's union of the discharge, as the agreement required ( see id. Art. XV § 1), but it never gave written notice directly to Mr. Mitchell.
This account of the facts is based largely on the statement of facts in the arbitral award (PL's Mot. for Summ. J. Ex. 1). Except where otherwise noted, the facts are not in dispute.
There is some dispute as to when Mr. Mitchell learned of his termination. According to Simkins, Mr. Mitchell was orally notified when he stopped by the company's office on August 15 and 16, 2001 to inform his supervisors that his medical excuse had been extended yet again until September 5, 2001. Mr. Mitchell contends that he was in the dark until April 9, 2002, when he sought to resume work and learned he had no job to recover. Whichever story is correct, the record indicates that Mr. Mitchell received disability compensation between July 3, 2001 and April 8, 2002, suggesting that he was legitimately unable to perform his job during that period. ( See Trotter Arbitral Award at 2.)
The union filed a grievance on April 12, 2002. It sought Mr. Mitchell's reinstatement on grounds that he had been "terminated while on workmen's comp." ( Id.) After the grievance procedure prescribed by the collective bargaining agreement failed to produce a resolution, the union sought arbitration, and University of Baltimore Professor Richard G. Trotter was selected as the arbitrator pursuant to the agreement. Professor Trotter held a hearing on February 6, 2003, accepted post-hearing briefs afterwards, and then issued his award on April 10, 2003.
B. The Arbitral Award
The arbitration of Mr. Mitchell's grievance involved two issues: first, was the grievance arbitrable under the collective bargaining agreement? and second, was Mr. Mitchell's discharge unjust? On the first issue, Simkins argued that the grievance was not arbitrable because it was untimely. The company relied on the following provision of the agreement:
Grievances shall be presented for settlement within thirty (30) days after the incident which gave rise to the grievance. The thirty (30) days shall not include time off for vacations, illnesses, leaves of absence, or layoff on the part of the aggrieved employee.
(CBA Art. XII.) Simkins argued that the relevant "incident" was Mr. Mitchell's discharge, which occurred on July 20, 2001-far more than 30 days before the grievance was filed on April 12, 2002. It noted that the union had written notice of the discharge within twenty-four hours yet took no action, and that in any event Mr. Mitchell received oral notice of his termination on August 15 or 16, 2001, again, long before the thirty day period preceding his grievance. The union countered that, regardless of the putative oral notice and the notification to the union, the grievance clock could not begin to run until Mr. Mitchell received written notice of his discharge. It observed that the agreement required each employee to provide Simkins with a current address and permitted the company to send notices to "the last address given to the company by an employee." On the second issue, Simkins argued that Mr. Mitchell was responsible for apprizing the company of his medical status. The union responded that Simkins, having received the first note, should not have fired Mr. Mitchell without investigating his condition. It claimed the termination was "unjust" under the collective bargaining agreement and therefore illegal.
Neither party has included this provision in the excerpts attached as exhibits to the briefs. The quotation is therefore drawn from the arbitration award. The provision reads in full: "Each employee covered by this agreement is responsible at all times for having his or her correct address and a working telephone number recorded with the company. All notices sent to the last address given to the company by an employee should be considered as having been properly given. The company will submit a mailing list to the Regional Office of the Union each year not later than March 1st. Failure to comply with this provision will result in three (3) steps progressive discipline." (Trotter Arbitral Award at 7.)
The arbitrator found for the union on both issues. As to arbitrability, Professor Trotter concluded that Mr. Mitchell's discharge could not be untimely because discharge without written notice would "result in a denial of due process to the employee." (Trotter Arbitral Award at 9.) He thus rejected both of the alternative starting points for the 30-day grievance clock. Written notice to the union, he explained, did not start the countdown because such notice "does not address the due process requirement of notice of termination owed to the employee." ( Id.) Oral notification, meanwhile, was "at best constructive notice," and constructive notice was not enough to satisfy the requirements of industrial due process. ( Id.) Professor Trotter supported this latter point with language in the company's brief indicating that Mr. Mitchell had "constructive knowledge" of his termination due to his oral discussions with Simkins management in August 2001.
Simkins, regretting its choice of words, now argues that Mr. Mitchell in fact had "actual knowledge" due to the oral notice. (PL's Mem. at 4. n. 3.)
In ruling on the second issue, the arbitrator again relied on a due process theory. Referencing a treatise cited by the union, Professor Trotter ruled that the company had not followed "appropriate due process procedures" because it failed to "obtain substantial evidence of proof that the employee was guilty as charged prior to termination." ( Id.) "It appears," he went on, "as if the company automatically discharged the grievant when it did not hear from him for three days, even though it had knowledge of his medical condition. Additionally even after the company discovered that in fact the grievant had an excused absence, it did not modify the disciplinary action taken against him." ( Id. at 9-10.) Professor Trotter concluded that such a discharge was "unjust" under Article XV when that provision was "[r]ead in relation to" Article X. ( Id. at 9.) Accordingly, he ordered that Mr. Mitchell be reinstated.
C. Procedural Posture
On May 12, 2003, Simkins filed a complaint in federal court seeking to vacate the arbitral award under § 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a). On July 9, 2003, the union filed an answer including a counterclaim to enforce the award. Both parties have since filed cross-motions for summary judgment, which have been fully briefed.
II. STANDARD OF REVIEW
Judicial review of arbitral awards in the collective bargaining context is "among the narrowest known to the law." Union Pac. R.R., 439 U.S. at 91 (internal quotations omitted). The court is not entitled to decide the merits of the dispute. Rather, "if 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." Major League Baseball Ass'n v. Garvey, 532 U.S. 504, 509 (2001) (per curiam) (internal quotations omitted). Nor is the court permitted to second-guess factual determinations. "When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's `improvident, even silly, factfinding' does not provide a basis for a reviewing court to refuse to enforce the award." Id. (quoting United Paper workers Int'l Union v. Misco, Inc., 484 U.S. 29, 39 (1987)). The rationale behind this deference to the arbitrator is that it is the arbitrator's interpretation of the facts and the agreement that the parties bargained for, so it is the arbitrator's ruling that the parties should get, so long as the arbitrator "did his job." See Mountaineer Gas Co. v. Oil, Chem. Atomic Workers Int'l Union, 76 F.3d 606, 608 (4th Cir. 1996); United Steelworkers of Am. v. Enterprise Wheel Car Corp., 363 U.S. 593, 599 (1960).
The only circumstance in which the court may vacate an arbitral award on the merits is "when the arbitrator strays from interpretation of the agreement and effectively `dispense[s] his own brand of industrial justice.'" Garvey, 532 U.S. at 509 (quoting Enterprise Wheel Car, 363 U.S. at 597 (alterations in original)). In the Fourth Circuit's words, "we may vacate an arbitrator's award only if it `violates clearly established public policy, fails to draw its essence from the collective bargaining agreement, or reflects merely the arbitrator's personal notions of right and wrong.'" Yuasa, Inc. v. Int'l Union of Electronic, Electrical, Salaried, Machine Furniture Workers, 224 F.3d 316, 321 (4th Cir. 2000) (quoting Champion Int'l Corp. v. United Paperworkers Int'l Union, 168 F.3d 725, 729 (4th Cir. 1999)). The central consideration in determining whether the award "drew its essence" from the contract is the text of the agreement. See Mountaineer Gas, 76 F.3d at 608. Thus, "[w]hen determining whether the arbitrator did his job, [the] court examines: (1) the arbitrator's role as defined by the CBA [collective bargaining agreement]; (2) whether the award ignored the plain language of the CBA; and (3) whether the arbitrator's discretion in formulating the award comported with the essence of the CBA's . . . limits." Id.
The court may also, of course, vacate the award if the arbitrator should not have heard the dispute in the first place. This threshold issue of arbitrability-whether the arbitrator had authority to consider the case-"is presumptively a matter for judicial determination." USPS, 204 F.3d at 527 n. 1 (citing AT T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 649 (1986)). The parties, however, may agree to arbitrate the question of arbitrability, and they may manifest such agreement "by conduct, for example by submitting without objection to arbitration of a dispute." See Rock-Tenn Co. v. United Paperworkers Int'l Union, 184 F.3d 330, 334 (4th Cir. 1999); cf. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995) (distinguishing the question of arbitrability from the question of who determines arbitrability). Such an agreement is in effect here: though Simkins contested the issue of arbitrability before the arbitrator, it never argued that the issue was one for the court; nor does it make that argument here. Accordingly, the court must review Professor Trotter's ruling on arbitrability, like his ruling on the merits, under the narrow standard that ordinarily applies to arbitral awards in the labor-management context.
III. ANALYSIS
Given the "extremely limited" standard of review, USPS, 204 F.3d at 527, the record in this case does not indicate grounds for remanding Professor Trotter's award. First, it is evident from the award that Professor Trotter undertook a good-faith effort to "do his job" of interpreting the agreement, which is all that a reviewing court may demand. See Mountaineer Gas, 76 F.3d at 608. Second, it also is apparent that the conclusions he reached-that the grievance was arbitrable and the discharge unjust-were based on a permissible interpretation of the agreement, one that "drew its essence" from the agreement's text. See id. The court, therefore, will uphold Professor Trotter's award and grant summary judgment in favor of the union.
A. Was the Grievance Arbitrable?
The first issue before the arbitrator was the timeliness of Mr. Mitchell's grievance. On this point, Simkins argues that the arbitrator's decision to hear the grievance conflicted with unambiguous language in the collective bargaining agreement: "Grievances shall be presented for settlement within thirty (30) days after the incident that gave rise to the grievance." (CBA Art. XII.) Assuming the "incident" in this case was Mr. Mitchell's discharge, the grievance at issue was indeed filed far more than thirty days afterwards. Thus, according to Simkins, the arbitrator lacked authority to hear the grievance, and his decision to do so failed to draw its essence from the contract. The union counters that Professor Trotter's decision was warranted by another provision of the agreement, namely, the provision on "unjust discharge": "Any employee who is discharged or suspended and is determined under the grievance procedure of this Agreement to be unjustly discharged or suspended, shall be reinstated to his job, may be given full pay for all time lost and shall lose no seniority." (CBA Art. XV § 2.) It is well established that "phrases such as `fairly and justly' allow an arbitrator to consider the lack of procedural fairness in a discharge." Tenn. Valley Auth. v. Tenn. Valley Trades Labor Council, 184 F.3d 510, 516 (6th Cir. 1999); see also Federated Dep't Stores v. United Food Chem. Workers Union, Local 1442, 901 F.2d 1494, 1497 (9th Cir. 1990) (noting that "it is not unusual for an arbitrator to apply due process notions to just cause"); Anaconda Co. v. District Lodge No. 27 of the Int'l Ass'n of Machinists Aerospace Workers, 693 F.2d 35, 37 (6th Cir. 1982) (per curiam) (concluding that the phrase "fairly and justly" in a collective bargaining agreement gave the arbitrator authority to regulate "procedural fairness"); Chauffeurs, Teamsters Helpers Local Union No. 878 v. Coca-Cola Bottling Co., 613 F.2d 716, 719-20 (8th Cir. 1980) (indicating that "arbitrators have long been applying notions of `industrial due process' to `just cause' discharge cases"). As a result, the union argues, Professor Trotter had authority to require written notice to Mr. Mitchell as a matter of industrial due process, and he could therefore reject a defense of untimeliness where no such notice was given.
Whatever reading would be best as a matter of de novo interpretation, the union's argument is strong enough to indicate that the arbitrator was at least "arguably construing or applying the contract and acting within the scope of his authority." Misco, 484 U.S. at 38. To begin with, the collective bargaining agreement itself contradicts the inflexible view of the filing deadline that Simkins advances. Despite the applicable provision's mandatory language-"grievances shall be presented within thirty days"-the agreement qualifies the deadline in the very next sentence: "The thirty (30) days shall not include time off for vacations, illnesses, leaves of absence, or layoff on the part of the aggrieved employee." (CBA Art. XII.) This language supports the arbitrator's conclusion that considerations of fairness were meant to inform the interpretation of the thirty-day deadline. Indeed, it might even be argued, though the arbitrator did not make this point, that Mr. Mitchell's condition qualified as an "illness" that tolled the thirty-day period under the agreement's express terms. Furthermore, the arbitrator's due process authority under the "unjustly discharged" clause entails the power to relax the filing deadline in Mr. Mitchell's case. Professor Trotter's conclusion that the agreement required written notice to the employee in the event of a discharge was consistent with his due process authority; other courts have upheld arbitral awards imposing similarly specific procedural requirements. See, e.g., Federated Dep't Stores, 901 F.2d at 1495, 1496-97 (upholding an arbitrator's reinstatement of an employee who had been "discharged without having been able to tell his side of the story to his supervisor"); Chauffeurs, Teamsters, 613 F.2d at 719-20 (upholding an arbitrator's determination that a "just cause" provision entailed a "fair hearing dimension"); Super Tire Eng'g Co. v. Teamsters Local Union No. 676, 721 F.2d 121, 124-25 (3d Cir. 1983) (upholding an arbitrator's determination that there was no "just cause" for discharge under a provision allowing "immediate dismissal" for on-the-job drinking because there had been no "unambiguous warning of a policy of strict enforcement"); Safeway Stores, Inc. v. United Food Commercial Workers Union, Local 400, 621 F. Supp. 1233, 1239-40 (D.D.C. 1985) (enforcing an arbitral award reinstating an employee because the company filed "to notify timely the grievant and the Union of all the reasons for its decision to discharge the employee"). It follows, then, that Professor Trotter must also have had authority to extend the filing period, for otherwise the power to require notice would be toothless: employees like Mr. Mitchell, lacking notice, would end up with untimely claims though they had not known of anything to grieve. Thus, both the due process language and the agreement's tolling provision appear to support Professor Trotter's decision to hear Mr. Mitchell's grievance.
The union raises this argument in its reply brief Def.'s Reply at 3), but Simkins, citing District 17, United Mine Workers of Am. v. Island Creek Coal Co., 179 F.3d 133, 140 (4th Cir. 1999), argues that the union is barred from raising arguments it did not raise during arbitration (Pl's Reply at 3-6). Simkins's procedural bar theory overstates the governing law. While it is true that "when a party consents to arbitration it cannot attack the award on grounds not raised before the arbitrator," Island Creek Coal, 179 F.3d at 140, it is possible to conclude that an arbitral award "drew its essence" from the contract on the basis of arguments not considered by the arbitrator, see, e.g., Anaconda Co., 693 F.2d at 37 (upholding an arbitral decision though the stated basis for the award was "illogical").
It is true, as Simkins maintains, that two other provisions of the agreement could favor a different reading. First, the agreement mandates notice to the union within twenty-four hours of a discharge, but makes no mention of notice to the employee. ( See CBA Art. XV § 1.) Simkins asserts that the "past practice" of the parties, in light of this provision, was to provide notice only to the union. Second, the agreement provides for the expeditious handling of discharge cases: "All such cases of discharge may be taken up to Step #2 of our Grievance Procedure within four (4) days from the date of the discharge and shall be disposed of with due diligence." ( See id. Art. XV § 2.) This mandate for speed, Simkins argues, weighs against tolerating the long delay in Mr. Mitchell's case. Yet neither of these provisions compelled the arbitrator to conclude that Mr. Mitchell's grievance was untimely. While the agreement may not have provided for notice to the employee, neither did it prohibit such notice. Nor did the agreement's provision that extraordinary speed "may" be appropriate in some cases preclude a determination that extraordinary delay could be excused in some others. "The court is not free to determine whether the inclusion of certain procedural provisions in the agreement preclude[s] an arbitrator from interpreting other provisions to require additional procedures." Federated Dep't Stores, 901 F.2d at 1496-97 (citing Enterprise Wheel Car, 363 U.S. at 599). At best, these provisions added to the ambiguity as between the agreement's due process language and the thirty-day deadline. They did not mandate a particular resolution to that ambiguity, and they in no way establish that the arbitrator was not even arguably construing the contract.
It is also irrelevant whether, as Simkins claims, the union had an obligation to inform Mr. Mitchell of his discharge. The arbitrator could nonetheless require notice directly to the employee without contradicting the agreement.
Nor do U.S. Postal Service v. American Postal Workers Union, 204 F.3d 523 (4th Cir. 2000), and Wyandot, Inc. v. Local 227, United Food Commercial Workers Union, 205 F.3d 922 (6th Cir. 2000), two cases cited by Simkins, compel a different outcome. Both these cases involved stronger prohibitions on arbitration than the agreement at issue here. In USPS, the Fourth Circuit overturned an arbitral award because the arbitrator disregarded "unambiguous language" in the collective bargaining agreement barring "every kind of separation-related grievance by a probationary employee." See USPS, 204 F.3d at 528. In contrast to this case, the exclusion in USPS was "unqualified and admit[ted] of no exception." Id. Consequently, the arbitrator's decision to hear the grievance "contravene[d] the unambiguous language of the agreement"; his theory that the agreement allowed "procedural attacks" on discharges but not "substantive" ones was unavailing. See id. Here, by contrast, Professor Trotter's decision depended on a reasonable interpretation of the filing deadline in light of other provisions; there was no contradiction between his decision and the text. Furthermore, Professor Trotter's ruling in this case dealt only with a procedural rule, not a categorical exclusion like the one in USPS. As the First Circuit has recognized, arbitrators, like courts, have wide latitude in interpreting "procedural time limits" to avoid the exclusion of meritorious claims on technical grounds. See Berklee Coll. of Music v. Berklee Chapter of the Mass. Fed'n of Teachers, Local 4412, 858 F.2d 31, 33 (1st Cir. 1988). That the Fourth Circuit declined to recognize a procedure/substance distinction in USPS did not prevent Professor Trotter from adopting the First Circuit's approach: the question in USPS was whether a "procedural attack" remained viable despite the categorical exclusion, see USPS, 204 F.3d at 528, whereas here the issue is whether the agreement's technical time limit could be read to allow arbitration of a claim that would clearly be arbitrable if it were timely.
Wyandot, similarly, is distinguishable. First, although that case, like this one, involved the interpretation of a filing deadline, the provision in Wyandot used much stronger language and, as in USPS, failed to provided for any exceptions. "All time limits for the process of grievances," it stated, "shall be deemed mandatory requirements and the failure to comply with such specified time limits shall cause the grievance to be barred and considered completely disposed of." See Wyandot, 205 F.3d at 925. In addition, the rationale for excusing the grievant's tardiness in that case was far less compelling: the Wyandot arbitrator simply noted that the union had given the company a letter stating its intention to arbitrate, though the letter itself was submitted after the deadline. See id. at 926, 929-30. Thus, there was no indication in Wyandot, as there is here, that factors such as a medical excuse and absence of notification informed the arbitrator's timeliness determination, nor even that the agreement itself could be read to afford flexibility in unusual circumstances.
Other cases, in fact, have confirmed arbitrators' power to relax procedural deadlines to conform with industrial due process. In Berklee College, then-Judge Breyer explained that "[a]rbitrators have read . . . exceptions into literally absolute-sounding time limits in labor contracts; sometimes they have done so in light of the parties' own history of practice, but sometimes not." 858 F.2d at 33 (internal citations omitted). "This background," he went on, "suggests that the parties may not have meant by the contract's word `must' that failure to comply always, automatically bars a grievance, no matter what the circumstances." Id. Accordingly, the First Circuit held, over a dissent, that an arbitrator had authority to hear a grievance filed four or five days after a ten day deadline. The court noted that "[o]nly the narrowest of exceptions [to the rule of deference to arbitral awards] could exclude this arbitrator's interpretation, for not only does the contract say that the union [must] bring the grievance within 10 days, but it also says that `time limits' such as this one `may only be waived by mutual written consent,' a consent that here was not forthcoming." Id. at 32. Nevertheless, "taking the Supreme Court at its word," the court upheld the award because a "plausible argument" could be constructed to favor the arbitrator's decision. Id. at 32-33. By comparison, the case for upholding Professor Trotter's decision can only be stronger, given that the filing deadline in this case included explicit exceptions and Mr. Mitchell had compelling reasons for his delay.
Likewise, NF M Corp. v. United Steel workers of America, 524 F.2d 756 (3d Cir. 1975), supports upholding Professor Trotter's award. In that case, the Third Circuit held that an arbitrator could hear a tardy grievance because the union had "substantially complied" with the collective bargaining agreement's procedures. See id. at 760. The court noted that the union had raised the grievance orally during a previous meeting, but the company "requested postponement of the discussion." See id. As a result, the Third Circuit explained, "[t]he arbitrator might have found that the time limitation provisions of the grievance procedure were tolled by the Company's request to defer discussion of the discharge . . . Whether or not we agree with the arbitrator's application and interpretation of the contract is irrelevant." Id. Similarly, in this case, Professor Trotter could plausibly conclude that Simkins's failure to afford written notice to Mr. Mitchell tolled the limitations period for his grievance, and that Mr. Mitchell's prompt filing of the grievance once he discovered that his job was no longer available constituted "substantial compliance" with the collective bargaining agreement's procedures. At the very least, NF M, like Berklee College, indicates that ostensibly mandatory grievance deadlines may be interpreted flexibly in unusual circumstances like Mr. Mitchell's.
In short, a plausible reading of the agreement supports Professor Trotter's decision to hear Mr. Mitchell's claim, and the case law applying the limited standard of review in labor arbitration cases does not justify vacating the award. Professor Trotter was free to reach the merits of the grievance.
B. Was Mr. Mitchell "Unjustly Discharged"?
The issue Professor Trotter confronted on the merits was whether Mr. Mitchell's discharge was "unjust" within the meaning of the agreement. Again, a reasonable interpretation of the agreement supports the arbitrator's conclusion. Whereas Simkins argues that Professor Trotter's decision did not comport with the essence of the contract, there are in fact several plausible arguments that could justify Mr. Mitchell's reinstatement.
The rationale that Professor Trotter most clearly expressed was that the termination of Mr. Mitchell despite a "documented excused absence" was a denial of "fundamental due process." Simkins argues that this theory conflicts with Mountaineer Gas, a Fourth Circuit decision vacating the reinstatement of an employee who violated his employer's substance abuse policy, see Mountaineer Gas, 76 F.3d at 610. Just as the arbitrator in Mountaineer Gas read a provision for company employment policies out of the agreement, see id., so did Professor Trotter, according to Simkins, read out the provision allowing termination based on a three-day undocumented absence. This analogy is unpersuasive. In Mountaineer Gas, the arbitrator's decision "blatantly ignored the unambiguous language of the Drug Policy and fashioned a modified penalty that appealed to his own notions of right and wrong." Id. Here, by contrast, the arbitrator based his decision not on distaste for the three-day absence policy, but rather, as he put it, on the company's lack of "substantial evidence of proof that the employee was guilty as charged prior to termination." (Trotter Arbitral Award at 9.) In other words, Professor Trotter's decision pertained only to the company's burden of investigation in applying the three-day absence provision, not its authority to employ the provision at all. Because the arbitral award was thus compatible with the terms of the agreement, whereas the award in Mountaineer Gas was not, Fourth Circuit precedent does not foreclose Professor Trotter's reasoning.
In any event, Professor Trotter hinted at a second rationale for his holding that could by itself justify the award. In language that Professor Trotter repeatedly italicized, the collective bargaining agreement follows the three-day absence provision with the following sentence: "It is not the intent of this Section that an employee must call every three (3) days." (CBA Art. X § 7.) Whatever the best reading of this sentence, one possible interpretation is that it spares employees the burden of providing renewed notice to the company once they have afforded an excuse that could reasonably be expected to extend beyond three days. In this case, Simkins could have surmised from Mr. Mitchell's note that any absence extending beyond the "approximate" end-date of July 11, 2001 was probably attributable to Mr. Mitchell's medical condition. It is at least arguable, therefore, that Simkins's termination of Mr. Mitchell without investigation was inappropriate under the terms of the agreement. Professor Trotter's italicization demonstrates, at the very least, that he was "arguably construing or applying the contract," and such a showing is all that is required to uphold an arbitral award. See Misco, 484 U.S. at 38.
Finally, Professor Trotter's discussion of the arbitrability issue indicates yet another justification for his award. If termination without written notice violates industrial due process, as Professor Trotter indicated in assessing the grievance's timeliness, then it follows that Mr. Mitchell's discharge, which was accompanied by no such notice, was "unjust." The logic of Professor Trotter's ruling on arbitrability suggests, then, that in ruling on the merits Professor Trotter "was not modifying the provisions of the collective bargaining agreement on absenteeism but rather was interpreting the provision that the Company treat its employees [justly]." Anaconda Co., 693 F.2d at 37 (upholding an arbitral award of reinstatement). Thus, although Professor Trotter did not spell out this argument in assessing the merits, his discussion of arbitrability reinforces the conclusion that the decision to reinstate Mr. Mitchell was consistent with a plausible reading of the agreement.
For all these reasons, it is not possible to conclude that Professor Trotter's award failed to draw its essence from the agreement. His decision, rather, was consistent with the text of the agreement and comported with the due process authority afforded by the "unjustly discharged" clause. Accordingly, Professor Trotter's decision on the merits, like his decision on arbitrability, must stand.
IV. CONCLUSION
Because plausible arguments may be found to support Professor Trotter's disposition of Mr. Mitchell's grievance, the limited standard of review in labor arbitration cases compels the court to enforce Professor Trotter's award. See Berklee College, 858 F.2d at 34 ("Whether we would find these arguments convincing were it up to us to interpret the contract is beside the point. The question is whether the arguments make the arbitrator's interpretation plausible."). The union's motion for summary judgment will therefore be granted and Simkins's denied.
A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:1. the plaintiff's motion for summary judgment (docket no. 27) is DENIED;
2. the defendant's motion for summary judgment (docket no. 25) is GRANTED;
3. the arbitral award of April 10, 2003 is ENFORCED;
4. copies of this Order and the accompanying Memorandum shall be sent to counsel of record; and
5. the clerk of the court shall CLOSE this case.