UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CLINCHFIELD COAL COMPANY,
Plaintiff-Appellee,

v.
                                                                 No. 98-1052
DISTRICT 28, UNITED MINE WORKERS
OF AMERICA; LOCAL UNION 2888,
United Mine Workers of America,
Defendants-Appellants.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CA-97-41-A)

Argued: October 29, 1998

Decided: November 23, 1998

Before MICHAEL and MOTZ, Circuit Judges, and STAMP, Chief
United States District Judge for the Northern District of West
Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Daniel H. Sachs, UNITED MINE WORKERS OF
AMERICA, Castlewood, Virginia, for Appellants. Ronald E. Meis-
burg, HEENAN, ALTHEN & ROLES, Washington, D.C., for Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

District 28, United Mine Workers of America, appeals the district
court's order vacating an arbitrator's award that reinstated James
Musick, a Clinchfield Coal Company employee who had been fired
by the company for absenteeism. We affirm.

Several years ago, Musick was convicted in state court of assault
on another Clinchfield employee alleged to be romantically involved
with Musick's wife. Musick was given a suspended sentence, placed
on probation, and enrolled in a work release program. Under the con-
ditions of his work release, he was required to check in at the county
jail each day after work. After he failed to check in one day, the court
required Musick to serve the remainder of his sentence in jail.
Because of his incarceration, Musick missed 71 days of work at a
Clinchfield mine. Clinchfield discharged Musick upon his return. The
company claimed that under Article XXII(i)(4) of the Coal Wage
Agreement (the Agreement), it had complete discretion to dismiss any
employee who missed two or more consecutive days of work without
its consent or evidence of proven sickness. The union took the matter
to arbitration, and the arbitrator ruled for the union. The arbitrator
concluded that the company did not have the absolute right to dis-
charge under Article XXII(i)(4) and held that Musick's twenty-two
years of discipline-free service to the company and his "tough [per-
sonal] situation" warranted his reinstatement.

Clinchfield filed this action in district court to set aside the arbitra-
tion award. The district court thereafter granted the company's motion
for summary judgment, vacating the arbitrator's decision.

Courts are required to show great deference to arbitration deci-
sions. See United Paperworkers v. Misco, Inc. 484 U.S. 29, 38
(1987). Nevertheless, any arbitration decision must draw its essence

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from the parties' agreement and may not contradict the agreement's
plain language. See id.; United Steel Workers v. Enterprise Wheel &
Car Corp., 363 U.S. 593, 599 (1960). Clinchfield thus argues that the
arbitrator's decision did not draw its essence from the Agreement and
that the decision contradicted the plain language of Article XXII(i)(4).

Article XXII(i)(4) provides that "[w]hen any Employee absents
himself from his work for a period of two (2) consecutive days with-
out the consent of the Employer, other than because of proven sick-
ness, he may be discharged." This language gives the employer full
discretion to dismiss an employee who is absent from work in viola-
tion of the conditions. In "conclud[ing] that the totality of [Musick's]
circumstances warrants his reinstatement," the arbitrator ignored the
plain language of Article XXII(i)(4).

Moreover, the arbitrator's interpretation contradicts several Arbi-
tration Review Board decisions. See Central Ohio Coal Co., Muskin-
gum Mine and Local Union 1604, District 6, ARB Decision No. 114
(Arb. Feldman, Nov. 4, 1977) (holding that if the two-consecutive-
day absence provision applies to an employee, his discharge must be
upheld); Clinchfield Coal Co., Pilgrim Mine and Local Union 2261
and District 28, ARB Decision No. 97 (Arb. Stokes, June 9, 1977)
(same). This is precedent the arbitrator was bound to follow under
Article XXIII(k) of the Agreement. In light of these ARB decisions
the arbitrator could not consider, under Article XXII(i)(4), the per-
sonal, mitigating circumstances advanced by Musick.

Notwithstanding the plain language of Article XXII(i)(4), the union
contends that Musick's reinstatement was proper under Article XXI-
I(i)(5) of the Agreement. That provision emphasizes the importance
of "[c]onsistent application" of Article XXII(i)'s attendance control
policy. Article XXII(i)(5) does not provide a basis for us to revive the
arbitrator's decision in this case. The arbitrator did not rely on this
provision. Moreover, there is no evidence in the record that Clinch-
field has been inconsistent in applying Article XXII(i)(4).

Accordingly, for the reasons stated above and in the memorandum
opinion of the district court, see Clinchfield Coal Co. v. District 28,
United Mine Workers of America, No. 97-0041, mem. op. (W.D. Va.

                     3
Dec. 12, 1997), we affirm the grant of summary judgment to Clinch-
field Coal Company.

AFFIRMED

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