                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                    September 3, 2004

                        _______________________                 Charles R. Fulbruge III
                                                                        Clerk
                              NO. 03-11062
                        _______________________


                           ROCK-TENN COMPANY,

                                 Plaintiff-Counter Defendant-Appellee,

                                  versus

                PAPER, ALLIED-INDUSTRIAL, CHEMICAL AND
                  ENERGY WORKERS INTERNATIONAL UNION,
               AFL-CIO, CLC AND LOCAL UNION NO. 4-0895,

                                 Defendant-Counter Claimant-Appellant.



            Appeal from the United States District Court
                 for the Northern District of Texas
                       USDC No. 3:02-CV-2582-L


Before REAVLEY, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

           The Paper, Allied-Industrial, Chemical and Energy Workers

International Union (“Union”) appeals the district court’s decision

vacating an arbitrator’s ruling that Appellant Rock-Tenn improperly

subcontracted its long-haul trucking work in violation of the

parties’   collective     bargaining    agreement    (“CBA”).       For    the

following reasons, we AFFIRM.




     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
           Rock-Tenn is a paper manufacturing company that operates

a mill in Dallas, Texas.       The company uses truck drivers to deliver

its paper products to customers and distribution centers throughout

the United States, relying both on employees and subcontractors for

these   deliveries.      The    company      categorizes       these    deliveries

according to their distance:           trips of less than 100 miles are

“short-haul” routes, while trips of more than 100 miles are “long-

haul” routes.    Historically, the company has employed relatively

few drivers, and subcontractors have carried the bulk of the

delivery loads.        The   precise    percentage       of   loads     carried   by

subcontractors has varied over the years, ranging from 66 percent,

when Rock-Tenn employed six or seven truck drivers, to 90 percent,

when Rock-Tenn employed only one or two drivers.

           In late 2001, Rock-Tenn decided to subcontract all of its

long-haul deliveries in an effort to save money.                    Because company

drivers earn extra compensation for long-haul routes, Rock-Tenn’s

decision reduced the pay of the company’s six drivers, but the

company did     not   terminate   any       employees.        The    drivers   filed

grievances against the company, and the case eventually proceeded

to arbitration.       The arbitrator ruled in favor of the Union,

concluding that although Rock-Tenn had the right to subcontract its

shipping operations, its rights were not unfettered.                     The arbi-

trator ordered Rock-Tenn to “restore the ‘status quo’” and assign

long-haul routes to company truck drivers “at the same level as



                                        2
before they were discontinued” — specifically, “to the maximum

extent allowed by Department of Transportation regulations.”

            Rock-Tenn    appealed    the      arbitrator’s    decision   to   the

district court. The court ultimately concluded that the arbitrator

had exceeded his authority by ignoring the plain language of the

CBA and imposing restrictions on Rock-Tenn’s rights to subcontract

not contained in the CBA.        The Union appealed.

            The district court rejected the conclusions of both the

arbitrator and the magistrate judge and granted summary judgment in

favor of Rock-Tenn.      We review the district court’s grant de novo,

applying   the   same   standard    as       the   district   court.1    Summary

judgment is appropriate only when there is no genuine issue as to

any material fact and the moving party is entitled to judgment as

a matter of law.2

            Judicial review of arbitration awards arising from the

terms of a collective bargaining agreement is extremely limited.

We must affirm the arbitration award “as long as the arbitrator is

even arguably construing or applying the contract and acting within

the scope of his authority.”3        If the arbitrator has not exceeded

his authority, “the fact that a court is convinced he committed


      1
            Weber Aircraft Inc. v. Gen. Warehousemen & Helpers Union Local 767,
253 F.3d 821, 824 (5th Cir. 2001).
      2
            FED. R. CIV. P. 56(c); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d
455, 458 (5th Cir. 1998).
      3
            United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38
(1987).

                                         3
serious error does not suffice to overturn his decision.”4                       We may

not overrule the arbitrator’s award simply because we interpret the

contract differently, even if we are convinced he committed serious

error.5    “It is only when the arbitrator strays from interpretation

and application of the agreement and effectively ‘dispense[s] his

own   brand     of   industrial    justice’       that    his   decision     may    be

unenforceable.”6       We have held that when an arbitrator ignores the

express language of a CBA, he has exceeded his authority and the

arbitration award must be vacated.7

              The    district   court     concluded      that   the    arbitrator’s

decision      conflicted    with    the       express    language     of   the    CBA.

Article III of the CBA provides:              “Nothing in this Agreement shall

limit in anyway [sic] the Company’s subcontracting work or shall

require the Company to perform any particular work in this plant

rather than elsewhere.”           The district court concluded that this

provision by its plain terms gives Rock-Tenn an unlimited right to

subcontract work and that the arbitrator exceeded his authority by

imposing a limitation on this right.


      4
              Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509
(2001).
      5
            Int’l Chem. Workers Union v. Columbian Chems. Co., 331 F.3d 491, 494
(5th Cir. 2003).
      6
            Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509
(2001) (quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597
(1960)).
      7
            Houston Lighting & Power Co. v. Int’l Broth. of Elec. Workers, Local
Union No. 66, 71 F.3d 179, 184 (5th Cir. 1995) (“If the language of the agreement
is clear and unequivocal, an arbitrator is not free to change its meaning.”).

                                          4
            We   agree.         By   its   terms,   Article      III    reserves   to

management the right to subcontract work.              Indeed, the arbitrator

himself recognized this, noting that Article III by its literal

terms allows Rock-Tenn to subcontract without explicit limitation.

Nonetheless, the arbitrator pointed to the commentary of other

arbitrators to justify his decision to depart from the clear

language of the CBA.        As we have noted in the past, “[a]rbitral

action contrary to express contractual provisions will not be

respected.”8      Given that the language of the CBA is clear and

express, the arbitrator was without authority to ignore its terms

to pursue his “own brand of industrial justice.”9

            This conclusion is reinforced by the CBA’s arbitration

provisions.      Article XV, Section 5 of the CBA specifies that

      [t]he jurisdiction and authority of the impartial arbiter
      and his opinion and award, shall be confined to the
      interpretation of the provision or provisions of this
      Agreement at issue between the Company and the Union.
      The impartial arbiter shall have no authority to add to,
      detract from, alter, amend, or modify any provision of
      this Agreement or impose on any party hereto a limitation
      or obligation not explicitly provided for in this
      Agreement.

The arbitrator, however, violated this instruction by imposing on

Rock-Tenn   a    clear    and    distinct      limitation   on    its    ability   to

subcontract:      the arbitrator ordered Rock-Tenn not simply to use



      8
            Delta Queen Steamboat Co. v. District 2 Marine Engineers Beneficial
Ass’n, 889 F.2d 599, 604 (5th Cir. 1989).
      9
            Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597
(1960).

                                           5
company drivers for some long-haul routes, but to use them to the

maximum extent allowed by Department of Transportation regulations.

In so ruling, the arbitrator wrote into the CBA a new provision

limiting the ability of the company to subcontract its trucking

routes or to vary the extent to which it relies on subcontractors

for shipping purposes.          The CBA nowhere imposes such a limitation,

and indeed Rock-Tenn’s past practices — relying on subcontractors

to fulfill anywhere from 66 percent to 90 percent of the shipping

needs — indicate that no such obligation has ever been contem-

plated.      The arbitrator exceeded the authority delegated to him

under      the    CBA   by   imposing   a   limitation   on   Rock-Tenn’s   sub-

contracting ability.10

                 For the foregoing reasons, the judgment of the district

court is AFFIRMED.




      10
            A different case would undoubtedly be presented if, as a result of
subcontracting, the company had laid off workers, but we do not speculate on it
here.

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