                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 97-4059
                                     ___________

Metal Shop, Warehousemen, and            *
Helpers Union, Local 970, A Labor        *
Organization,                            *
                                         *
             Appellant,                  *
                                         *
       v.                                * Appeal from the United States
                                         * District Court for the District
B. F. Nelson Folding Cartons, Inc.,      * of Minnesota.
A Corporation,                           *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: May 14, 1998

                                   Filed: July 20, 1998
                                    ___________

Before McMILLIAN, NOONAN,1 and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                          ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Metal Shop, Warehousemen, and Helpers Union, Local 970, went on strike at
the plant of B. F. Nelson Folding Cartons, Inc. (Nelson). After a brief strike, the union


      1
      The Honorable John T. Noonan, Jr., United States Circuit Judge for the Court
of Appeals for the Ninth Circuit, sitting by designation.
and Nelson agreed to a new collective bargaining agreement and the striking employees
returned to work. Nelson placed three of these returning workers in positions different
from the ones that they held before the strike. Each of the three returning employees
filed a formal grievance to protest the loss of his earlier position, and the parties
submitted the disputes to arbitration.

        The arbitrator sustained two of the grievances, ordering Nelson to reinstate
Thomas Scheidegger and Terry Murschel to their previous jobs. The arbitrator denied
the third grievance, initiated by James Troske, but ordered Nelson to invite employees
to apply for the position that Mr. Troske sought. (We refer to this last process hereafter
as "posting.")

       The union brought suit in the district court to confirm the arbitrator's award, and
Nelson filed a counterclaim asking that it be set aside. The district court confirmed the
arbitrator's award as to Mr. Scheidegger but vacated the award as to Mr. Murschel.
The district court also vacated the arbitrator's order to post the position that Mr. Troske
sought. The union then appealed the district court's rulings pertaining to Mr. Murschel
and Mr. Troske.

     We affirm in part and reverse in part the judgment of the district court, and we
remand the case for further proceedings not inconsistent with this opinion.

                                                I.
       The scope of judicial review of an arbitrator's decision, as the district court
recognized, is narrow. " 'The courts are not authorized to reconsider the merits of an
award even though the parties may allege that the award rests on errors of fact or on
misinterpretation of the contract.... As long as the arbitrator's award "draws its essence
from the collective bargaining agreement," and is not merely "his own brand of
industrial justice," the award is legitimate.' " Alvey, Inc. v. Teamsters Local Union No.
688, 132 F.3d 1209, 1211 (8th Cir. 1997), quoting United Paperworkers Int'l Union

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v. Misco, Inc., 484 U.S. 29, 36 (1987), itself quoting United Steelworkers of America
v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960).

       A court "cannot interfere with the arbitrator's award 'unless it can be said with
positive assurance that the contract is not susceptible of the arbitrator's interpretation.' "
Kewanee Machinery Division v. Local Union No. 21, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, 593 F.2d 314, 318
(8th Cir. 1979), quoting International Brotherhood of Electrical Workers v.
Professional Hole Drilling, Inc., 574 F.2d 497, 503 (10th Cir. 1978). 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.' " John Morrell and Co. v. Local Union 304A of the
United Food and Commercial Workers, AFL-CIO, 913 F.2d 544, 559 (8th Cir. 1990),
cert. denied, 500 U.S. 905 (1991), quoting Misco, Inc., 484 U.S. at 38.

       Quite recently, we upheld an arbitrator's award in a labor dispute, holding that
"[w]hile the wording of the award and some of its reasoning on subsidiary points is
perhaps open to criticism, its essence is consistent with the spirit and reason of the
collective-bargaining agreement. No more is required." United Food and Commercial
Workers, AFL-CIO, CLC, Local No. 88 v. Shop 'N Save Warehouse Foods, Inc., 113
F.3d 893, 897 (8th Cir. 1997).

                                             II.
        Prior to the strike, Mr. Murschel served in the position of "AA Pressman" on the
day shift (the final and highest position in the hierarchical progression in which all of
the employees who work on the printing presses at Nelson participate). During the
strike, Ronald Erickson replaced the striking Mr. Murschel as the "AA Pressman" on
the day shift, and when Mr. Murschel returned to Nelson after the strike, he was
assigned to the position of "AA Pressman" on the second shift.


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        The arbitrator held that Nelson violated the new collective bargaining agreement
by failing to reinstate Mr. Murschel as an "AA Pressman" on the day shift. In reaching
this conclusion, the arbitrator relied on a "grandfather" provision found in section 10.2
of the bargaining agreement. That section provides that, notwithstanding a seniority
provision in the bargaining agreement, "all current permanent full time employees will
remain in their current positions."

        Contrary to what Nelson argues on appeal, the word "positions" as used in
section 10.2 is not subject to only one interpretation. The word might, as Nelson
argues, refer to jobs that employees were performing on the date that the collective
bargaining agreement was signed. But the word might also, as the union argues and the
arbitrator held, refer to the jobs that employees held permanently as of the date of the
new collective bargaining agreement. The word "positions," either alone or combined
with the word "current," does not necessarily require either of these interpretations.

       The arbitrator resolved this uncertainty in the new collective bargaining
agreement by examining other terms of the new collective bargaining agreement and
the facts surrounding its acceptance. The arbitrator determined that the jobs assigned
during the course of the strike were temporary job assignments partly because the
company operated only one press during the strike, and that press was not operated
regularly on three shifts (apparently, Nelson normally operates its presses on three
consecutive shifts). Accordingly, he held, job assignments made during the strike were
not protected by the grandfather clause.

      The arbitrator then concluded that Mr. Erickson's assignment to the day shift was
not permanent and that he was therefore not entitled to the protections of the
grandfather clause. On the other hand, he held that Mr. Murschel had been
permanently assigned to the day shift as an "AA Pressman." The arbitrator therefore
concluded that Nelson had to reinstate Mr. Murschel in order to comply with the
collective bargaining agreement.


                                          -4-
       We cannot say "with positive assurance," Professional Hole Drilling, Inc., 574
F.2d at 503, that the collective bargaining agreement "is not susceptible of the
arbitrator's interpretation," id., on this point. Whether either Mr. Murschel or
Mr. Erickson was entitled to the protections of the grandfather clause may be a nice
question, but that is precisely the reason why Nelson and the union contracted in the
collective bargaining agreement for arbitration in the event of a disagreement. While
one might reasonably disagree with the arbitrator's reasoning, we believe that he can
fairly be said to have interpreted, not amended, the collective bargaining agreement.
The arbitrator's decision here is therefore drawn from the essence of that agreement,
and thus we believe that the district court erred in vacating this portion of the award.

                                          III.
        We turn next to the arbitrator's ruling that Nelson post the position that
Mr. Troske desired. Prior to the strike, Mr. Troske served officially in the position of
"Floor C" (the first position in Nelson's hierarchical progression for printing press
employees). He had acted, however, as a "Feeder" for about one month prior to the
strike. "Feeder," also known as "B Pressman," is the hierarchical position immediately
superior to "Floor C" in Nelson's progression.

       During the strike, Nelson hired David Baldwin instead to serve as a "Feeder,"
and when Mr. Troske returned from the strike, Nelson assigned him to his original role
of "Floor C" rather than "Feeder." Mr. Troske filed a grievance because he was
assigned to a different position from the one that he occupied prior to the strike. The
arbitrator rejected Mr. Troske's grievance, finding that his assignment as a "Feeder"
prior to the strike was not permanent, and thus not protected by the grandfather clause
in section 10.2. The rejection of Mr. Troske's grievance is not on appeal, since the
union did not challenge that portion of the arbitrator's determination before the district
court.




                                           -5-
       The arbitrator did, however, determine that the company violated the terms of
the collective bargaining agreement by failing to post the position of "Feeder" prior to
hiring Mr. Baldwin, and ordered Nelson to post the position. We agree with the district
court that this portion of the arbitrator's award does not draw its essence from the
collective bargaining agreement.

       The arbitrator relied upon section 10.5 of the collective bargaining agreement in
concluding that Nelson was required to post the "Feeder" position that Mr. Troske
desired. That section does indeed provide that when there is an opening for any reason
in any classification of work covered by the agreement, the opening shall be posted by
the employer for seventy-two hours. The principle established in this section is refined,
however, by section 10.5(A), which provides that work assignments classified as
"progression" jobs should "normally" be posted only at the starting "C" level, and by
section 10.5(B), which provides that if there are no qualified employees within the
progression capable of satisfactorily performing the vacant work assignment, the job
should be posted.

       The arbitrator concluded that there was no evidence that section 10.5 was
followed during the strike and therefore ordered that the job be posted. But the
arbitrator's award makes no reference to either section 10.5(A) or section 10.5(B). The
plain text of section 10.5(A) indicates that a progression job would normally be posted
only at the "C" level. There is no dispute that "Feeder" is a progression position at the
"B" level rather than a "C" level. This section, then, read together with section 10.5(B),
indicates that Nelson did not violate the collective bargaining agreement by failing to
post the "Feeder" position, unless there was something abnormal about the hiring of the
"Feeder," or unless no qualified employees within the progression were capable of
performing the position satisfactorily.

        We do not believe that a strike, in and of itself, or any of the events that attended
the strike that occurred in this case, can reasonably be said to constitute an abnormal


                                            -6-
situation within the meaning of section 10.5(A), and we can find no evidence in the
record to indicate that there were no qualified employees within the progression
capable of performing the position of "Feeder." Since we think that this portion of the
arbitrator's award finds no support whatever in the relevant collective bargaining
agreement, we conclude that it cannot have drawn its essence from the agreement.

                                         IV.
       We affirm in part and reverse in part the judgment of the district court, for the
reasons given, and we remand the case for further proceedings not inconsistent with
this opinion.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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