UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROAD SPRINKLER FITTERS LOCAL
UNION NO. 669, affiliated with The
United Association of Journeymen
and Apprentices of the Plumbing
and Pipefitting Industry of the
United States and Canada,
                                                                      No. 97-1892
AFL-CIO,
Plaintiff-Appellee,

v.

POWER CITY HEATING & PLUMBING,
INCORPORATED,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CA-93-97-5)

Submitted: January 20, 1998

Decided: February 25, 1998

Before NIEMEYER and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Stanley G. Burech, Donna L. Crow, BURECH & CROW, St. Clairs-
ville, Ohio, for Appellant. William W. Osborne, Jr., Robert H. Mor-
silli, OSBORNE LAW OFFICES, P.C., Washington, D.C., for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Power City Heating & Plumbing, Inc. (Power City), appeals the
district court's order granting summary judgment in favor of Road
Sprinkler Fitters Union No. 669 (Local 669) on the issue of liability,
thereby enforcing an arbitration award based on the collective bar-
gaining agreement (Project Agreement) between Local 669 and
Power City. Jurisdiction is based on § 301 of the Labor Management
Relations Act, 29 U.S.C. § 185 (1994). Power City argues that an
arbitration committee (the Committee) lacked jurisdiction to hear and
decide the dispute because the Committee was improperly selected
and because the Committee disregarded several procedural errors
committed by Local 669 that were in violation of the Project Agree-
ment. This panel has already granted Power City's motion to submit
this case on the briefs. Finding no merit to these contentions, we
affirm.

The parties' dispute arises from the installation of a sprinkler sys-
tem for Wheeling Hospital. The terms and conditions for all labor
were governed by the Project Agreement executed by Wheeling Hos-
pital, the Upper Ohio Valley Building & Construction Trades Council
(BCTC), and its affiliated unions, the Ohio Valley Construction
Employers Council (OVCEC), and all contractors who performed
work on the project. When the dispute arose, Local 669 and Power
City were signatories to the Project Agreement, which provides for
final and binding arbitration of grievances. This case arose from
Power City's refusal to utilize workers from Local 669.

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Power City began work on a portion of the project utilizing a dif-
ferent union, Local 83, to install the sprinkler system. A dispute
developed in which Local 669 contended that it had the exclusive
right under the Project Agreement to install the system because it was
a signatory to the Project Agreement. After Power City continued to
employ labor from Local 83, Local 669 organized picketing of Power
City at the project and then reduced its grievance to writing.

Local 669's grievance was heard on April 15, 1993, by the Com-
mittee, whose members were selected by BCTC and OVCEC. At the
arbitration hearing, Power City contended that the Committee was
without jurisdiction to consider Local 669's grievance because Power
City should have been permitted to appoint three members to the
Committee. The Committee noted that under Paragraph 9 of the Proj-
ect Agreement, OVCEC and/or Power City may appoint three mem-
bers to the six-member Committee. The Committee further noted that
Power City was aware of Local 669's grievance and had requested a
continuance of the hearing, without expressing a desire to appoint
three members to the Committee.* Consequently, the Committee con-
cluded that Power City waived its right to make appointments to the
Committee. The Committee further found Power City's procedural
challenges meritless and ordered Power City to execute the Project
Agreement and utilize workers from Local 669.

In May 1993, Local 669 filed a complaint and then an amended
complaint seeking to compel enforcement of the arbitration award.
Power City interposed a counterclaim in which it sought to vacate the
decision and the award. Power City argued that the Committee was
not properly selected and therefore lacked jurisdiction to issue an
award, and that Local 669 did not follow the procedural requirements
set forth in Paragraph 9 of the Project Agreement. On cross-motions
for summary judgment on the issue of liability by both parties, the
_________________________________________________________________
*The Committee noted that Power City was aware of Local 669's
grievance by April 2, 1993. The Committee further explained that the
arbitration hearing was originally scheduled for April 6, 1993, and that
pursuant to a request from Power City, the matter was rescheduled for
April 15, 1993, at 10:00 a.m. On April 14, 1993, Power City claimed that
it could not attend the arbitration hearing at 10:00 a.m. and the hearing
was rescheduled for 8:30 a.m.

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district court concluded that the Committee's decision and award was
derived from the essence of the parties' contract, that the Committee
properly construed the terms of the Project Agreement, and that the
Committee correctly found that Power City violated the Project
Agreement. The court subsequently denied Local 669's request for
damages and dismissed the action.

Because "the question of whether an arbitrator exceeded the scope
of his authority is a question of law," this court reviews the ruling of
the district court de novo. Island Creek Coal Co. v. District 28,
UMWA, 29 F.3d 126, 129 (4th Cir. 1994) (citing Upshur Coals Corp.
v. UMWA, Dist. 31, 933 F.2d 225, 228 (4th Cir. 1991)). Federal courts
must give "special judicial deference" to an arbitrator's decision, and
the court's review of an arbitrator's award under§ 301 is very lim-
ited. Id. Because the parties to a collective bargaining agreement bar-
gained for an arbitrator to interpret the contract, federal courts should
not substitute their interpretation of the labor contract for the arbitra-
tor's. See id. Instead, federal courts should overturn the decision of
an arbitrator only if the decision is not based on the terms of the col-
lective bargaining agreement. See United Paperworkers Int'l Union
v. Misco, Inc., 484 U.S. 29, 38 (1987); Island Creek, 29 F.3d at 129.
Thus, an arbitrator's award will be overturned only if the arbitrator
"based his award on his own personal notions of right and wrong, for
only then does the award fail to draw its essence from the collective
bargaining agreement." Upshur Coals Corp., 933 F.2d at 229 (cita-
tions omitted).

Here it is clear that the arbitration award draws its essence from the
underlying Project Agreement. First, the record reveals that Local 669
signed the Project Agreement on June 11, 1992, and that Power City
signed it on September 15, 1992. Therefore, the Committee correctly
found that both parties were signatories to the Project Agreement. See
International Longshoremen's Ass'n v. Cataneo Inc. , 990 F.2d 794,
799 n.11 (4th Cir. 1993) (stating that a grievance committee decision
or an arbitration award "cannot be overturned as long as it is based
upon some support in the record."). The Committee also properly
rejected Power City's contention that Local 669 violated the proce-
dural requirements set forth in Paragraph 9 of the Project Agreement.
Because the Committee had the authority to interpret the Project
Agreement which set forth the grievance and arbitration procedures,

                    4
these procedural issues were properly left for the Committee to
decide. See Glass v. Kidder Peabody & Co., 114 F.3d 446, 453 (4th
Cir. 1997) (quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S.
543, 557 (1964) ("`[P]rocedural' questions which grow out of the dis-
pute and bear on its final disposition should be left to the arbitrator")).
Finally, the Committee construed the Project Agreement's directive
under Paragraph 9 "that three members of the Committee should be
selected by OVCEC and/or the employer (Power City), whichever is
applicable." In concluding that the choice of three Committee mem-
bers by OVCEC was "applicable," the Committee noted that Power
City failed to choose three arbitrators in a timely fashion and thereby
waived its right to select members. Consequently, Power City has
failed to show that the Committee's decision was premised on its own
notions of right and wrong.

Accordingly, Power City's contentions that the Committee did not
have jurisdiction to resolve this dispute and that the arbitration award
fails to draw its essence from the Project Agreement are without
merit. We therefore affirm the district court's grant of partial sum-
mary judgment to Local 669.

AFFIRMED

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