                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-1917


MERCK & COMPANY, INCORPORATED,

                Plaintiff – Appellee,

           v.

INTERNATIONAL CHEMICAL WORKERS UNION COUNCIL OF THE UNITED
FOOD AND COMMERCIAL WORKERS UNION, LOCAL 94C,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.     Samuel G. Wilson,
District Judge. (5:07-cv-00114-SGW)


Argued:   March 25, 2009                   Decided:   July 6, 2009


Before MICHAEL, KING, and AGEE, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


ARGUED:   Jonathan G. Axelrod, BEINS & AXELROD, PC, Washington,
D.C., for Appellant. Joseph Edward Santucci, Jr., MORGAN, LEWIS
& BOCKIUS, LLP, Washington, D.C., for Appellee.      ON BRIEF:
Heather S. Gelfuso, MORGAN, LEWIS & BOCKIUS, LLP, Washington,
D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      The    International          Chemical        Workers       Union    Council    of    the

United      Food   and     Commercial        Workers         Union,        Local    94C    (the

“Union”), appeals from the district court’s adverse decision of

August 12, 2008, awarding summary judgment to Merck & Company,

Incorporated       (“Merck”),        and   vacating          an   arbitration       award    in

favor of the Union.                 See Merck & Co., Inc., v. Int’l Chem.

Workers Union Council of the United Food and Commercial Workers

Union, Local 94C, No. 5:07-cv-00114 (W.D. Va. Aug. 12, 2008)

(the “Memorandum Opinion”). 1              The court ruled that the arbitrator

had   exceeded     his     authority       in       making    the    arbitration          award,

which required Merck to reinstate one of its employees.                                      As

explained below, we reverse and remand for enforcement of the

award.



                                             I.

                                             A.

      On    September      7,   2005,      Dale      Moubray       reported    to    work    at

Merck’s      Elkton,     Virginia,         facility      under        the     influence      of

alcohol.     Moubray,      a    pipe-fitter/millwright,               is    represented      by

the   Union,       which       is    the    exclusive             collective       bargaining

      1
        The Memorandum Opinion is found at J.A. 151-56.
(Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)



                                                2
representative         for   a     bargaining       unit       of     production      and

maintenance employees at Merck’s Elkton facility. 2                         Rather than

terminate Moubray from his employment, Merck imposed a five-day

unpaid disciplinary suspension.                   Following the suspension, on

September 13, 2005, Merck, Moubray, and a Union representative

entered into a “Return to Work & Last Chance Agreement” (the

“Last Chance Agreement” or the “LCA”).                  See J.A. 58-59.

       The Last Chance Agreement required Moubray to, inter alia,

meet with a representative of Merck’s Employee Assistance Plan

in order to establish a treatment plan.                  The LCA further obliged

Moubray “to comply with all recommendations and requirements as

established       by   the   Employee       Assistance        Plan    and   the    Health

Services Department.”            J.A. 58.       If, at any time, Moubray failed

to comply with these recommendations and requirements, the LCA

provided that he would “be subject to immediate termination and

such       termination   [would]     not     be    subject     to     the   contractual

grievance and arbitration procedures.”                     Id. at 59. 3           The LCA

stated,       however,   “that     in   the     event    of    a     termination,     Mr.

Moubray may file a grievance challenging the facts upon which



       2
       Merck and the Union were signatories to a collective
bargaining agreement in effect from May 1, 2003, through April
30, 2006 (the “CBA”). See J.A. 1-49.
       3
       The CBA created a governing grievance procedure                               that
included arbitration of certain disputes. See J.A. 38-39.



                                            3
the Company determined that Mr. Moubray was non-compliant or

otherwise in violation of this Agreement.”              Id.

      On the following day, September 14, 2005, Martha Sheridan,

a   representative    of    Merck’s   employee     assistance     program,    met

with Moubray and decided that he was to participate in a program

offered    by   an   independent      entity     called   the    LIFE   Recovery

Program (the “Program”).         At his first session in the Program,

on September 19, 2005, Moubray executed a patient contract (the

“Program      Contract”),     agreeing      to    the     following     relevant

conditions:

      1. I will attend the LIFE Recovery Program . . .
      Monday, Tuesday, Thursday . . . . If extraordinary
      circumstances prevent my attendance or results in
      tardiness, I will notify the staff immediately.

      . . .

      7. I will follow all relevant patient                     rules   and
      regulations as stated in patient handbook. 4

      . . .

      11. I understand that the following behaviors                     may
      result in premature discharge from the program:

      . . .




      4
        The “patient handbook” of the Program provides, in
relevant part, that “[p]rompt attendance at all scheduled groups
and activities is expected except when excused by your
counselor, doctor, or nurse. You are expected to participate in
and attend all scheduled groups and activities.” J.A. 63.



                                        4
            5. Lack of cooperation with program expectations
            to the extent of impeding progress (This includes
            chronic tardiness or absenteeism).

J.A. 62.

    In the weeks following the Program’s first session, Moubray

attended ten of eleven sessions, with a single excused absence

on September 22, 2005.            He then missed a session on October 13,

2005,    attended    sessions       on    October     17,   2005      and    October     24,

2005, and missed sessions on October 18 and October 25, 2005.

Moubray did not, prior to any of the three missed sessions,

notify    the    Program     to   explain       his   absence     or   request      to    be

excused.        Moubray returned for a session on October 27, 2005,

and met with his Program case manager, Dee Michael.                               Michael

advised    him    not   to   miss    the    October      31,    2005       session,     even

though    Moubray    requested       to    be    excused    from      it    to   take    his

godson    trick-or-treating.             Despite      Michael’s    warning,       Moubray

did not attend the October 31 session.                   Moubray returned for the

session of November 1, 2005, and was advised that he could not

continue with the Program until he met with Michael.                              Moubray

called Michael on November 2, 2005, and scheduled an appointment

for the following day.              Also on November 2, Sheridan, Merck’s

employee    assistance       program      representative,        called       Michael     to

check on Moubray’s status in the Program.                       Michael summarized

Moubray’s       participation,       and    on     November      3,     2005,     sent     a

confirming letter to Merck (the “Letter”).                         Michael’s Letter

                                            5
concluded:           “As     of     today’s       date,       Mr.   Moubray         is   not     in

compliance with our program requirements.”                          J.A. 69.

       Upon       Merck’s    receipt       of    the    Letter,      Sheridan        instructed

Moubray not to attend the November 3, 2005 meeting with Michael

because he had been kicked out of the Program.                                That same day,

Merck notified Moubray by letter that he was out of compliance

with       the    Last     Chance        Agreement      and     was,     therefore,         being

suspended         from     employment,          with    intent      to       discharge.          On

November 14, 2005, Moubray was discharged by Merck.

                                                 B.

       On    November       15,    2005,       the    Union    filed     a    grievance        with

Merck,        protesting          Moubray’s           discharge        and        seeking       his

reinstatement.           Merck conducted a grievance hearing on December

16, 2005, and, that same day, denied the Union’s grievance.                                     The

Union then submitted its grievance to arbitration before the

Federal Mediation and Conciliation Service, on whether Moubray

had complied with the terms of the Last Chance Agreement.                                        On

August      8,     2007,    the        parties    participated         in     an    arbitration

hearing          conducted        by     Arbitrator       Jeffrey           B.     Tener       (the

“Arbitrator”).             Two    months       later,     on    October       19,    2006,      the

Arbitrator         entered        an     Arbitration        Opinion         and     Award      (the

“Award”), 5        concluding          that,     although      Merck     was       entitled      to

       5
           The Award is found at J.A. 89-109.


                                                  6
terminate Moubray if he was out of compliance with the Last

Chance Agreement, “[i]t cannot be concluded that Moubray was not

compliant with the conditions of the last [chance] agreement so

he was not subject to immediate termination.”                      Award 20.   The

Award thus directed Merck to “reinstate [Moubray] to his former

position and to make [him] whole.”               Id.   When Merck refused to

accept the Award and reinstate Moubray, this litigation ensued.

      Two months later, on December 26, 2007, Merck filed its

complaint in the Western District of Virginia, pursuant to § 301

of the Labor Management Relations Act, 29 U.S.C. § 185, seeking

to vacate the Award.             Merck alleged that the Arbitrator had

ignored the plain language of the Last Chance Agreement and that

the Award failed to draw its essence from the LCA.                      The Union

disagreed, and counterclaimed for enforcement of the Award.                      On

May   1,    2008,    the    parties    filed     cross-motions       for    summary

judgment.

      On   August    12,    2008,    the   district    court   granted      summary

judgment    to   Merck     and   denied    the   Union’s    cross-motion.      See

Memorandum Opinion 1-2.           In so ruling, the court recognized the

narrow scope of judicial review for an arbitration award, but

concluded that the Award must be vacated in any event because it

“contradicts        the    express    provisions       of    the     last   chance

agreement.”      Id. at 5.       The court observed that “Moubray plainly

agreed to comply with ‘all’ treatment program ‘requirements’ and

                                           7
recommendations,                 which        unequivocally          include          punctual

attendance.           He    also    plainly      agreed     that     he   was    subject    to

immediate termination if ‘at any time’ he became noncompliant.”

Id.   The Memorandum Opinion observed that “[t]he agreement says

absolutely        nothing         about      expulsion      or     discharge      from     the

program.        Nor can the agreement be read to mean that Moubray is

in compliance with all program requirements and recommendations

so long as he has not been expelled.”                        Id. at 5-6.         Predicated

on these observations, the court concluded that the Award “does

not draw its essence from the last chance agreement” and must

therefore be vacated.              Id. at 6.

      On August 18, 2008, the Union filed its timely notice of

appeal,     and       we    possess       jurisdiction       pursuant      to    28     U.S.C.

§ 1291.



                                                II.

      We    review         de    novo    a   district      court’s    award      of    summary

judgment.             Volvo      Trademark       Holding     Aktiebolaget         v.     Clark

Machinery Co., 510 F.3d 474, 481 (4th Cir. 2007).                                     Judicial

review     of    an    arbitration           award    in   the   collective      bargaining

context is “extremely limited,” and “among the narrowest known

to the law.”           Long John Silver’s Rests., Inc. v. Cole, 514 F.3d

345, 349 (4th Cir. 2008) (internal quotation marks omitted).                                 A

reviewing       court       is    entitled      to    “determine      only      whether    the

                                                 8
arbitrator did his job — not whether he did it well, correctly,

or reasonably, but simply whether he did it.”                            Mountaineer Gas

Co. v. Oil, Chem. & Atomic Workers Int’l Union, 76 F.3d 606, 608

(4th Cir. 1996).            “[A]s long as the arbitrator is even arguably

construing or applying the contract and acting within the scope

of his authority,” an arbitration award should be sustained,

even   if    “a     court    is    convinced          he   committed     serious     error.”

United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38

(1987).



                                            III.

                                             A.

       Under      the       deferential       standard          applicable       here,        an

arbitration award must be sustained if it “draws its essence”

from   the     parties’      agreement.              United   Steelworkers      of     Am.    v.

Enter.      Wheel    &   Car      Corp.,    363        U.S.   593,    597    (1960).         An

arbitration award draws its essence from the agreement so long

as “[t]he arbitrator [does] not ignore the plain language of the

contract.”        United Paperworkers Int’l Union v. Misco, Inc., 484

U.S. 29, 38 (1987); Norfolk & W. Ry. Co. v. Transp. Commc’ns

Int’l Union, 17 F.3d 696, 700 (4th Cir. 1994) (observing that

“an award that ignores the plain and unambiguous language of the

arbitration         contract      does     not       ‘draw    its    essence’    from        the

agreement”).          Notwithstanding         this         deferential      mandate,    “[a]n

                                                 9
arbitrator does not have carte blanche . . . to ‘dispense his

own brand of industrial justice.’”                      U.S. Postal Serv. v. Am.

Postal Workers Union, 204 F.3d 523, 527 (4th Cir. 2000) (quoting

Enter.   Wheel,      363    U.S.    at    597).        Rather,      “an     arbitrator     is

confined      to    interpretation         and    application         of    the    parties’

agreement.”          Id.    (internal       quotation        marks        omitted).        In

resolving a labor dispute, an arbitrator may be called upon to

make factual findings or to interpret the applicable agreement.

See Misco, Inc., 484 U.S. at 38.                  So long as an arbitrator does

so   within    the    confines      of    the    controlling        agreement       and   his

interpretation        of    the    agreement      is   not   “wholly         baseless     and

without reason,” Norfolk & W. Ry. Co., 17 F.3d at 700, “the

courts have no business overruling [an arbitrator] because their

interpretation         of    the     contract          is    different           from     [the

arbitrator’s],” U.S. Postal Serv., 204 F.3d at 527 (internal

quotation marks omitted).

                                            B.

       In this proceeding, the parties agree that the underlying

arbitration         proceedings          were    governed        by        the    discharge

provisions of the Last Chance Agreement.                     Cf. Coca-Cola Bottling

Co. v. Teamsters Local Union No. 688, 959 F.2d 1438, 1441 (8th

Cir.   1992)       (concluding     that     comparable       last     chance      agreement

superseded collective bargaining agreement).                          The LCA provided

for Moubray’s immediate termination — without recourse to the

                                            10
grievance and arbitration procedures established in the CBA —

“[i]f at any time Mr. Moubray [became] non-compliant with the

conditions       of        this   Agreement.”             J.A.     59.         The   Union   was

authorized       to        dispute,       however,       “the     facts       upon   which   the

Company        determined         that     Mr.     Moubray        was     non-compliant        or

otherwise in violation of this Agreement.”                          Id.       Pursuant to the

LCA’s    authorization,             the    Union       challenged       and    arbitrated     the

issue of whether Moubray had complied with the terms of the LCA.

The parties do not dispute that the termination of Moubray was

properly arbitrable.              They also do not dispute the fact that the

Arbitrator possessed authority to consider and make an award

concerning the matter.                  Rather, Merck argues that the Award of

reinstatement          does       not      draw        its   essence          from   the     LCA.

Accordingly, the terms of the LCA, and the Arbitrator’s view of

those terms, are controlling here.

        The    Last    Chance       Agreement          required    that       Moubray   “comply

with all recommendations and requirements as established by the

Employee Assistance Plan and the Health Services Department.”

J.A.     58.       In       making        the    Award,      however,         the    Arbitrator

determined that “[t]here is no evidence that either the Plan or

the [Health Services] Department established any requirements or

had any recommendations other than those of the LIFE Recovery

Program.”         Award       18.         As    such,    the     Award    incorporated       the

requirements          of    the   Program        into    the     Last     Chance     Agreement,

                                                  11
concluding that “it is the requirements of that program which

are controlling in this case.”          Id.

       The Program, in turn, imposed attendance requirements on

Moubray and specified conditions for his continued participation

therein.      Moubray was required to attend sessions three evenings

per week and to notify staff if “extraordinary circumstances”

prevented     his    attendance,     and     the    patient    handbook       of    the

Program     provided    that     “[p]rompt    attendance       at   all      scheduled

groups and activities is expected except when excused by [a]

counselor, doctor, or nurse.”          J.A. 62-63.

       In   making   the    Award,   the     Arbitrator       agreed    with       these

conditions, but nevertheless concluded that “the evidence still

does    not   support      the   conclusion        that   Moubray      was    not    in

compliance with the program requirements.”                   Award 19.       Although

the Program Contract specified that certain behavior — such as

chronic absenteeism — “may result in premature discharge from

the program,” the Arbitrator explained in the Award that the

evidence was “clear” that Moubray had not been discharged from

the Program as of November 3, 2005.                See id.    The Award observed

that the Letter, “upon which the Company relied so heavily and

which states that ‘As of today’s date, Mr. Moubray is not in

compliance with our program requirements’” also specified that

Moubray “was told he would not be allowed back into the group

until he first met with me.”               Id. (quoting J.A. 69).                  Thus,

                                       12
although Michael concluded that Moubray was not in compliance

with the Program’s requirements, he had not been discharged from

the Program.       See id.      Accordingly, the Award concluded that the

“LIFE Recovery Program was not consistent,” and, although it

reported to Merck that Moubray was not in compliance with its

requirements, Moubray had not been discharged from it.

      Finally,     the     Arbitrator     emphasized        in     the    Award       that

“Moubray did not know or believe that he was not in compliance

nor   did   he    have    any   reason    to   suspect      that    he    was    not    in

compliance.”       Award 19.      Importantly, the Arbitrator found that

Moubray     had     credibly      testified      that       he     and     the    other

participants in the Program had been advised that they could

make up sessions if they missed them.                See id. at 20.         The Award

explained that the evidence corroborated Moubray’s testimony, in

that he had not been discharged from the Program and had been

permitted    to    make    up   earlier   sessions      that     had     been    missed.

Thus, the Award concluded, “it was reasonable for [Moubray] to

believe that he was able to miss sessions and to make them up. .

. . He had no reason to believe he was not in compliance with

the requirements of the program.”              Id.

      We agree with the district court that the Award considered

Moubray’s    continued       participation      in    the    Program       —     or    the

absence of a discharge from the Program — to be synonymous with

his compliance with the Program’s requirements.                        We also agree

                                          13
with the court that the Arbitrator relied, in part, on Moubray’s

subjective       belief       concerning         his    compliance         with    the    Program

requirements in concluding that Moubray had complied with the

LCA.         Notwithstanding         these       shortcomings,         however,      the      Award

must be sustained.             See Misco, Inc., 484 U.S. at 38 (explaining

that award should be sustained despite “serious error,” so long

as    arbitrator       “is     even       arguably       construing         or    applying     the

contract and acting within the scope of his authority”).

       Although       the     terms       of    the    LCA    —      requiring      Moubray        to

“comply with all recommendations and requirements as established

by     the     Employee       Assistance          Plan       and     the    Health       Services

Department” — are plain and unambiguous, these terms alone are

insufficient to resolve the issue presented to the Arbitrator.

As     the    Award     recognized,            the    Program      established          the   only

relevant       recommendations            and     requirements,            but    applied     them

inconsistently.               Thus,        the        Program      required        Moubray         to

unequivocally attend three weekly sessions, but statements of

the     Program       staff    contradicted            this     attendance         requirement.

And, although the Program established attendance requirements,

it    also     provided       for    exceptions         —     such    as    an    excuse      by   a

counselor, doctor, or nurse.                     Importantly, the Program Contract

itself specified the consequences of violating it.                                 Rather than

immediate       expulsion           for   an     unexcused         absence,       the    Program

Contract provided that “chronic tardiness or absenteeism” “may

                                                 14
result      in     premature       discharge          from    the     program.”         J.A.    62

(emphasis added).             Although the district court concluded that

this provision “unequivocally include[d] punctual attendance,”

Memorandum          Opinion     5,      such          language        provides        sufficient

flexibility to justify the Arbitrator’s interpretation of it.

Rather than “ignor[ing] the plain language of the contract,” the

Arbitrator confined himself “to interpretation and application

of the parties’ agreement,” U.S. Postal Serv., 204 F.3d at 527,

and    we     must    defer     to    his      interpretation            of    the    Program’s

requirements.

       In these circumstances, it was entirely plausible for the

Arbitrator to conclude that Moubray was yet in compliance with

the “requirements” of the Program.                      See Norfolk & W. Ry. Co., 17

F.3d at 700 (explaining that where arbitrator confines himself

to    plain      language     of     contract,         arbitration        award       should    be

confirmed          unless     “wholly       baseless           and     completely       without

reason”).          The Arbitrator interpreted the LCA by looking to and

applying the requirements of the Program.                             He carefully examined

the   Program’s        documents      and      explained         his    view     of    what    was

required.          Even if we were to disagree with the Arbitrator’s

interpretation         and     reasoning,         we         cannot    conclude       that     his

reasoning is wholly baseless or completely without reason.                                     Put

simply,       we     are    entitled        to        “determine        only     whether       the

arbitrator did his job — not whether he did it well, correctly,

                                                 15
or reasonably, but simply whether he did it.”   Mountaineer Gas

Co. v. Oil, Chem. & Atomic Workers Int’l Union, 76 F.3d 606, 608

(4th Cir. 1996).    Accordingly, the Award “draws its essence”

from the Last Chance Agreement and, as a result, we must reverse

the ruling of the district court and direct enforcement of the

Award.



                               IV.

     Pursuant to the foregoing, we reverse the district court

and remand for enforcement of the Award.

                                           REVERSED AND REMANDED




                               16
