                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 06a0077p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


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                              Plaintiff-Appellant, -
 SPERO ELECTRIC CORPORATION,
                                                     -
                                                     -
                                                     -
                                                         No. 04-4142
          v.
                                                     ,
                                                      >
 INTERNATIONAL BROTHERHOOD OF ELECTRICAL             -
                                                     -
                             Defendant-Appellee. -
 WORKERS, AFL-CIO, LOCAL UNION NO. 1377,

                                                     -
                                                    N
                     Appeal from the United States District Court
                    for the Northern District of Ohio at Cleveland.
                  No. 03-02244—Solomon Oliver, Jr., District Judge.
                                    Argued: October 24, 2005
                             Decided and Filed: February 28, 2006
                     Before: RYAN, GILMAN, and COOK, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Alan G. Ross, ROSS, BRITTAIN & SCHONBERG CO., Cleveland, Ohio, for
Appellant. Ryan J. Lemmerbrock, FAULKNER, MUSKOVITZ & PHILLIPS, Cleveland, Ohio, for
Appellee. ON BRIEF: Alan G. Ross, ROSS, BRITTAIN & SCHONBERG CO., Cleveland, Ohio,
for Appellant. Ryan J. Lemmerbrock, FAULKNER, MUSKOVITZ & PHILLIPS, Cleveland, Ohio,
for Appellee.
         GILMAN, J., delivered the opinion of the court, in which COOK, J., joined. RYAN, J.
(p. 7), delivered a separate concurring opinion.
                                       _________________
                                           OPINION
                                       _________________
        RONALD LEE GILMAN, Circuit Judge. This case involves the enforceability of an
arbitrator’s award in a labor dispute. The specific issue is whether the basis for the award in favor
of the discharged employee conflicts with the express terms of the collective bargaining agreement
(CBA) between Spero Electric Corporation and the International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 1377 (IBEW). Spero particularly challenges the arbitrator’s
determination that the company had given up its right under the CBA to unilaterally change its work
rule regarding the no-smoking policy at the plant. For the reasons set forth below, we REVERSE


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No. 04-4142           Spero Electric Corp. v. Int’l                                               Page 2
                      Brotherhood of Electrical Workers


the judgment of the district court that enforced the award and REMAND the case for further
proceedings consistent with this opinion.
                                        I. BACKGROUND
A.     Factual and procedural background
       Spero and the IBEW entered into the CBA in late 2000. It provides for arbitration in the
event that the “grievances arising under the terms of this Agreement . . . are not satisfactorily
disposed of through the established channels of the grievance procedure.”
        After employee John Salters was fired for a first-offense violation of Spero’s no-smoking
policy, he filed a grievance. The grievance was submitted to an arbitrator with this stipulated issue:
“Was the discharge of the Grievant, John Salters[,] on January 2[8], 2003 for just cause? If not,
what shall be the remedy?”
         In addressing the issue of whether Salters was fired for just cause, the arbitrator first
analyzed which of three different versions of Spero’s no-smoking policy was in effect on January
28, 2003, the day of Salters’s termination. The earliest rule, which neither party claims was in effect
on the relevant date, provided for a four-step disciplinary process for smoking in “non-designated
areas” of the plant. On January 8, 2003, an attorney representing Spero sent a letter to the IBEW
containing a second version of the rule that had been discussed in a negotiation between Spero and
the IBEW on January 3, 2003. This January 8 rule provided for the same four steps of discipline,
but was applicable to Spero’s entire plant. A third version of the no-smoking rule was promulgated
by Spero on January 17, 2003, providing for the discharge of an employee upon a first offense rather
than at the end of the four-step disciplinary process. The management of Spero promulgated this
strict no-smoking policy in order to reduce high property-insurance premiums caused by the fire risk
to the building and its contents.
        After concluding that the January 17 rule was invalid, the arbitrator decided that the
January 8 version controlled. The arbitrator found that Spero and the IBEW had negotiated a change
in the rule during their January 3 meeting, which was memorialized in the correspondence dated
January 8. In characterizing the meeting as a “negotiation,” the arbitrator noted that “the meeting
appeared to have all the trappings of a negotiation with large and important delegations from both
sides.” The two issues that were discussed at the meeting were the no-smoking rule and a floating-
holiday policy.
        As a result of the meeting, Spero’s attorney sent two items to the IBEW on January 8:
(1) the updated rules containing the four-step no-smoking rule that applied to the entire building,
and (2) a separate “side letter” addressing the issue of floating holidays. The following statement
appears on the first substantive page of the January 8 work rules: “The Work Rules stated in this
handbook are subject to change at any time at the sole discretion of the Company.” Contained in
the “side letter” was an agreement as to the floating-holiday issue that was “inadvertently omitted
as part of the Collective Bargaining Agreement.” In order to be effective, the “side letter” had to
be signed by the IBEW.
        The arbitrator concluded that as a result of the January 3 negotiations, Spero could no longer
unilaterally alter its no-smoking rule. In the award, the arbitrator stated that the company
       entered into a contract on January 3 to maintain the four step progression for
       violations of the no-smoking rule. The length of the Company’s undertaking is
       unclear, but it must be held to have at least remained been [sic] in effect for the nine
No. 04-4142           Spero Electric Corp. v. Int’l                                             Page 3
                      Brotherhood of Electrical Workers


       days following the January 8 transmission of the terms of the agreement to the
       Union.
The arbitrator therefore held that Spero’s attempt to change its no-smoking rule on January 17 was
invalid and that the January 8 rule controlled. Because Salters was fired for a single smoking
offense, instead of being disciplined pursuant to the four-step January 8 no-smoking rule, his
termination was deemed not to be for just cause.
        The arbitrator ultimately held that Salters must be reinstated with full seniority and back pay.
Because the January 17 rules were determined to be invalid, the arbitrator did not address the
question of whether Salters had adequate notice of the rule change before his January 28, 2003
smoking violation or, regardless of the issue of notice, whether Salters’s termination under a one-
strike no-smoking rule was for just cause.
        Spero then filed suit against the IBEW, seeking to have the arbitration award vacated
pursuant to the Labor Management Relations Act, 29 U.S.C. § 185, and the Federal Arbitration Act,
9 U.S.C. § 10. The district court granted the IBEW’s motion for summary judgment and affirmed
the arbitrator’s award. This timely appeal followed.
B.      Terms of the CBA relevant to this appeal
       Three provisions of the CBA are relevant to this appeal. Article II, Section 2, which provides
for Spero’s rulemaking authority, is the first relevant provision:
       The Company retains the sole and exclusive right to manage its operations, as well
       as to control the disposition and number of working forces it retains. The right to
       manage shall also include the authority to establish and amend from time to time all
       policies and procedures governing and affecting the operations of the plant so that
       it may be operated in a safe and efficient manner.
       The second relevant provision is Article I, Section 3, which governs modifications to the
CBA:
       This Agreement shall be subject to amendment at any time by mutual consent of the
       parties hereto. Such amendment shall be reduced to writing, state the effective date
       of the amendment, be executed in the same manner as is this Agreement, and be
       approved by the INTERNATIONAL OFFICE of the Union.
       Finally, the scope of authority granted to the arbitrator is limited as provided in Article I,
Section 6:
       Said Arbitrator, in any decision he renders, shall conform to and be strictly bound by
       the provisions of this Agreement. In rendering or reaching any such decision, he
       shall have no power to add to, subtract from, change or modify any provisions of this
       Agreement.
                                           II. ANALYSIS
A.      Standard of review
       “When reviewing a district court’s decision to confirm or vacate an arbitration award, we
review factual findings for clear error and questions of law de novo. The question whether an
No. 04-4142           Spero Electric Corp. v. Int’l                                              Page 4
                      Brotherhood of Electrical Workers


arbitrator has exceeded his authority is a question of law that we review de novo.” Green v.
Ameritech Corp., 200 F.3d 967, 974 (6th Cir. 2000) (citations omitted). This court has stated that
       [t]he key issue . . . is whether the arbitrator’s award draws its “essence” from the
       terms of the collective bargaining agreement. An arbitrator’s award fails to draw its
       essence from the agreement when: (1) it conflicts with express terms of the
       agreement; (2) it imposes additional requirements not expressly provided for in the
       agreement; (3) it is not rationally supported by or derived from the agreement; or
       (4) it is based on “general considerations of fairness and equity” instead of the exact
       terms of the agreement.
Beacon Journal Pub. Co. v. Akron Newspaper Guild, Local No. 7, 114 F.3d 596, 600 (6th Cir.
1997) (citations omitted).
B.     The validity of the arbitration award
        The arbitrator’s finding that the January 8, 2003 agreement restricted Spero’s rulemaking
authority contradicts the express terms of the CBA regarding the method of modifying that
document. Article II, Section 2 of the CBA grants Spero the exclusive right to make rules without
consulting the IBEW and to change them at any time. This unilateral right is confirmed by the
following preamble language included in each of the successive sets of rules: “The Work Rules
stated in this handbook are subject to change at any time at the sole discretion of the Company.”
Even the arbitrator acknowledged that, “[i]n the abstract, there can be no quarrel with the
Company’s position” that “it has the right to establish or amend rules at any time.” Despite
recognizing such a right, the arbitrator held that Spero had contracted it away with respect to the no-
smoking rule and thus was unable to unilaterally change the rule on January 17, 2003. The
arbitration award therefore diminished Spero’s rulemaking authority from that granted by the CBA.
        In order for any amendment to the CBA to be effective, the requirements of the “method-of-
modification” clause contained in Article I, Section 3 must be met. This issue was squarely
addressed by this court in Pleasantview Nursing Home, Inc. v. NLRB, 351 F.3d 747 (6th Cir. 2003).
In Pleasantview, the nursing home and the union entered into an initial CBA in 1985. Id. at 750.
This and all subsequent CBAs contained two relevant provisions. One required that the nursing
home collect union dues from the employees’ pay each month. Id. Another stated that any
amendment must be executed in writing and signed by both parties. Id. In May of 1996, the last in
a series of written CBAs expired. Id. at 751. The parties orally agreed to extend the last CBA until
a new agreement could be negotiated. Id.
       For ten years after the initial CBA was executed, the company did not collect union dues
from the employees’ pay. Id. at 750-51. This was based on an “informal understanding” reached
between the company and the union. Id. at 750. An unsigned letter from the company to the union
confirmed their understanding by “stating that the collection clause would be inoperative for the
period covered by the initial CBA.” Id. at 753.
        When union-management relations ultimately broke down, the union filed an unfair-labor-
practice charge against the nursing home. Id. at 751-52. The union claimed, among other things,
that the nursing home had committed an unfair labor practice by failing to collect union dues in
contravention of the CBA. Id. at 753 & n.1. In its defense, the nursing home cited the “informal
understanding” with the union, calling attention to the ten years of consistent practice, an oral
agreement between the parties, and the letter from the company to the union referencing their
agreement. Id. at 753.
No. 04-4142           Spero Electric Corp. v. Int’l                                           Page 5
                      Brotherhood of Electrical Workers


       This court, holding that the method-of-modification clause contained in the CBA was
enforceable, invalidated the nursing home’s defense:
       [W]e need not decide whether oral modification in general is impermissible because
       all CBAs here contained an express zipper clause prohibiting modification except by
       written agreement executed by both parties. Such zipper clauses are legally
       effective. See Martinsville Nylon Employees Council Corp. v. NLRB, 969 F.2d 1263,
       1267-68 (D.C. Cir. 1992) . . . . Because neither an oral agreement, nor an unsigned
       letter that by its own terms only covers the initial CBA, constitutes a valid
       modification of the final CBA at issue here, its unambiguous language controls.
Id. at 754 (citations and footnote omitted). The Pleasantview court thus held that the NLRB did not
err in finding that the company’s failure to collect union dues from its employees was an unfair labor
practice. Id. at 755.
        Turning now to the case at hand, the arbitrator’s finding that a superseding agreement was
made on January 3 and confirmed in the January 8 correspondence from Spero’s attorney effectively
modified the CBA with respect to the company’s rulemaking authority. But Article I, Section 3
requires that any modification to the CBA (1) be reduced to writing, (2) state its effective date,
(3) be executed in the same manner as the CBA, and (4) be approved by the international office of
the IBEW. Even though the arbitrator found that the January 3 meeting had “all of the trappings of
a negotiation,” the purported “contractual undertaking” that resulted did not comport with the
method-of-modification clause. The January 8 letter was not executed in the same manner as the
CBA because it was neither signed by a representative of the IBEW nor approved by the IBEW’s
international office.
        This case is analogous to Pleasantview. In both cases, a subsequent agreement purportedly
changed the employers’ rights and obligations as spelled out in a CBA. The alleged agreement in
both cases also failed to comply with the method-of-modification clause contained in the CBA. In
Pleasantview, the writing was not signed by either party. Here, there was no writing executed in the
same manner as the CBA, i.e., bearing the signature of an IBEW official and approved by the
international office of the IBEW.
       This court held in Pleasantview that an agreement to modify the rights and obligations under
a CBA must comply with the terms of the method-of-modification clause in order to be given effect.
Pleasantview, 351 F.3d at 754. The purported agreement found by the arbitrator in this case did not
meet the requirements of the CBA’s method-of-modification clause.
        Our conclusion is further supported by the actions of the parties, which illustrate that they
did not intend the January 8 letter to amend the CBA. In his decision, the arbitrator held that the
January 8 letter represented an agreement to effectively modify the CBA with respect to Spero’s
rulemaking authority. But the January 8 letter was a follow-up to the January 3 meeting, at which
both the no-smoking rule and the floating-holiday policy were discussed. If the parties had intended
to modify their rights under the CBA with respect to both issues, one would expect the issues to have
been treated in the same manner by the January 8 letter. In fact, the January 8 letter treated the two
issues quite differently.
        The January 8 letter, on the one hand, simply enclosed an updated set of the work rules that
contained the revised no-smoking policy. With respect to the floating-holiday policy, however, the
correspondence included a “side letter” that required the IBEW to sign and return the document
before it became effective. By its own terms, the side letter “represent[ed] certain understandings
between the Company and the Union which w[ere] inadvertently omitted as part of the Collective
No. 04-4142          Spero Electric Corp. v. Int’l                                           Page 6
                     Brotherhood of Electrical Workers


Bargaining Agreement.” The correspondence thus treated the implementation of the floating-
holiday policy like a true amendment of the CBA, but treated the no-smoking policy change as a
routine unilateral alteration of the work rules.
        Finally, the terms of the CBA provided that the arbitrator could not “add to, subtract from,
change or modify” any part of the agreement. Contrary to this express limitation on the arbitrator’s
authority, the arbitration award restricted Spero’s unilateral rulemaking power under the CBA. The
arbitration award therefore did not “draw its essence from the agreement” and must be set aside.
See Beacon Journal, 114 F.3d at 600. This is not to say, however, that there is nothing further for
an arbitrator to decide in this case. The issues of whether Salters had adequate notice of the rule
change before his January 28, 2003 smoking violation and whether Salters’s termination under the
one-strike no-smoking rule was for just cause, for example, were never reached because the
arbitrator improperly decided that the January 17, 2003 change in the work rules was ineffective.
                                      III. CONCLUSION
    For all of the reasons set forth above, we REVERSE the judgment of the district court and
REMAND the case for further proceedings consistent with this opinion.
No. 04-4142            Spero Electric Corp. v. Int’l                                                Page 7
                       Brotherhood of Electrical Workers


                                      ______________________
                                         CONCURRENCE
                                      ______________________
        RYAN, Circuit Judge, concurring separately. Like my colleagues, I believe the arbitration
award for Salters must be set aside because it did not “draw its essence” from the collective
bargaining agreement (CBA), but I come to that conclusion for a different reason than my colleagues
offer. Beacon Journal Pub. Co. v. Akron Newspaper Guild, Local No. 7, 114 F.3d 596, 600 (6th Cir.
1997).
        In my view, this case is not about an arbitrator incorrectly deciding that the CBA was
amended by the parties’ separate and subsequent agreement; it is about his deciding the dispute in
violation of the CBA, because his decision did not draw its essence from the CBA. It drew its
essence from what the arbitrator called the January 3, 2003, oral “contract[],” which was mentioned
in the January 8, 2003, letter. Consequently, I do not understand this case as having anything to do
with how the parties could properly have modified the CBA and whether they did so. Rather, it is
a case about an arbitrator’s decision “drawing its essence” from something besides the CBA, and
therefore, under settled law, it must be set aside.
        Finally, I would not reverse and remand to the district court. I have real doubt that this court
has any authority to tell the district court, to tell the parties, to tell their hired arbitrator to go back
to work, and then specifically what to do. Whether the parties wish to hire more arbitration is
entirely in their discretion, not the federal court’s. I would simply vacate the district court’s
judgment confirming the arbitrator award and leave the next step to the parties.
