                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                             F I L E D
                    UNITED STATES COURT OF APPEALS          December 17, 2003
                         FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk

                             No. 03-40096


                          DOW CHEMICAL CO.,

                                Plaintiff-Appellant-Cross-Appellee,


                                versus


      LOCAL NO. 564, INTERNATIONAL UNION OF OPERATING ENGINEERS,

                                Defendant-Appellee-Cross-Appellant.




            Appeals from the United States District Court
            for the Southern District of Texas, Galveston
                            (G-02-CV-462)
Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

       Plaintiff-Appellant-Cross-Appellee Dow Chemical Co. (“Dow”)

seeks reversal of certain portions of an arbitration award that

granted the reinstated grievants performance awards, vacation pay,

and 401(k) benefits, all of which the district court affirmed at

summary judgment.    Dow argues that the court erred in finding the

arbitration panel did not exceed its authority under the collective



  *
     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this opinion should not be published and is not precedent except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.
bargaining agreement (“CBA”).       Defendant-Appellee-Cross-Appellant

Local No. 564, International Union of Operating Engineers (the

“Union”), to which the reinstated grievants belong, cross-appeals

the district court’s summary judgment vacatur of the arbitration

award     relating   to   one   particular   grievant,   Freddie   Bonner

(“Bonner”).     The Union argues that the district court erred in

finding Bonner’s discharge warranted under his October 1997 last

chance agreement (“LCA”).       Because the district court did not err

either in affirming the back benefits awarded by the arbitration

panel to all grievants except Bonner or in vacating the arbitration

award as to Bonner, we AFFIRM the decision below.

                                BACKGROUND

     On May 15, 2000, Dow took a “snapshot” of its email server.

Throughout June and July 2000, Dow conducted an investigation which

uncovered that over 250 employees had sent, received, and/or saved

pornographic, violent, and otherwise non-work-related emails.         Dow

then rated each employee’s email behavior on certain criteria,

including the category of material and what was done with it; in

August 2000 Dow discharged 20 employees for violating its email

policy.     Twelve of those discharged employees are represented by

the Union under its CBA with Dow.        The Union filed grievances on

behalf of them and demanded arbitration of its claims pursuant to

the CBA’s dispute resolution provisions.        All the grievances were

heard in a single hearing by a panel of three arbitrators during



                                     2
the week of January 14, 2002.

      The issue presented to the arbitrators was framed as whether

Dow violated the CBA when it terminated the 12 Union-represented

employees, and if it had, what remedy was appropriate.                   The panel

handed down its written decision on April 1, 2002.               It applied the

general standard of “just cause” and found that although the

grievants had engaged in “sending garbage through Company email,”

Dow did not have just cause to terminate them because other

employees in similar situations had been treated less severely and

because Dow had not considered any mitigating factors, such as the

grievants’ tenure and clean records.               The panel also took into

account Dow’s inadequate training on its unclear email policy and

that many of the grievants’ supervisors were also misusing email.

Thus, it found Dow violated the CBA by terminating the grievants

and   converted      their    terminations     into   18-month     disciplinary

suspensions.        The panel stated no “back pay” was to be given, but

that the reinstated grievants “are entitled to seniority rights and

benefits as if they had never been discharged.”

      After   the    panel    issued    its   decision,    Dow   moved    that   it

reconsider    Bonner’s       reinstatement    in   light   of    the   three-year

probation period outlined in his October 21, 1997, LCA, which had

been entered into partly due to his prior involvement with sexual

materials in the workplace.            In an April 8, 2002, clarification,

the panel affirmed its decision as to Bonner, stating it “did not

invoke last chance penalties on the Grievants” and restored all of

                                         3
them to the “status quo ante before these terminations.”            Both Dow

and the Union also sought clarification of that part of the initial

award relating to “benefits.”       On June 10, 2002, the panel issued

a second clarification, which specified that the grievants were to

receive   (1)   “the   same    Performance    Award   for   2002   as   other

comparably classified employees without discipline for the year,”

(2) “vacation time and pay or vacation allowance for 2000, 2001,

and 2002,” and (3) “the sum of the maximum [401(k)] amount he/she,

personally, would have been allowed to contribute for the time

period that he/she was off work [and] whatever matching Company

funds that were allowed during his/her time off work.”             The panel

also clarified that Bonner was to be returned to the position of

“Special Relief Operator.”

      Dow then filed a complaint in the district court, asking that

the court set aside all the benefits-related portions of the award

and   subsequent       clarifications,       but   not    challenging     the

reinstatement of the grievants, except Bonner.           The Union answered

and cross-claimed, asking that the district court enforce the

panel’s entire award.         Both parties moved for summary judgment.

The district court partially granted each motion; in essence, it

affirmed the panel’s award as to the back benefits for 11 of the

reinstated grievants but vacated that part of the award which

reinstated and conferred benefits on Bonner.             This appeal by Dow

and cross-appeal by the Union timely followed.



                                     4
                                  DISCUSSION

     Dow and the Union are correct in asserting that in an appeal

from a grant of summary judgment in a suit to vacate an arbitration

award, appellate courts review the district court’s ruling de novo.

Weber Aircraft v. Gen. Warehousemen and Helpers Union Local 767,

253 F.3d 821, 824 (5th Cir. 2001) (citations omitted).                Under Fed.

R. Civ. P. 56(c), summary judgment is proper if, viewing the facts

in the light most favorable to the nonmovant, the movant shows

there is no genuine issue of material fact such that the movant is

entitled to judgment as a matter of law.             See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52, 255 (1986).

     Appellate courts apply a highly deferential standard when

reviewing     arbitration     awards.       Int’l   Chem.   Workers    Union   v.

Columbian Chems. Co., 331 F.3d 491, 494 (5th Cir. 2003).               In fact,

“[j]udicial review of a labor-arbitration decision pursuant to [a

CBA] is very limited.”        Id. (quoting Major League Baseball Players

Ass’n   v.    Garvey,   532    U.S.   504,    509   (2001))   (alteration      in

original).     Courts may not review the arbitration decision on the

merits,      even   where     a   party      alleges    factual   errors       or

misinterpretation of law.         Brown v. Witco Corp., 340 F.3d 209, 216

(5th Cir. 2003); see also Columbian Chems., 331 F.3d at 494.              Where

there is a CBA governed by the Labor Management Relations Act of

1947, as here, courts do not overrule the arbitrator’s decision

simply because they might interpret the contract differently.

                                        5
Columbian Chems., 331 F.3d at 495 (citing United Steelworkers of

Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 599 (1960)).

     Though the interpretation of a CBA as a contract is a question

for the panel, see Steelworkers, 363 U.S. at 598-99, arbitrators

cannot exceed their scope of authority under the governing CBA.

Houston Lighting & Power Co. v. Int’l Bhd. of Elec. Workers, Local

Union No. 66, 71 F.3d 179, 182 (5th Cir. 1995).                 Still, courts

must affirm an arbitration award where such decision “draws its

essence” from the CBA and where the arbitrator is not fashioning

“his own brand of industrial justice.”             Weber, 253 F.3d at 824

(citations omitted).         That is, the award stands “as long as the

arbitrator is even arguably construing or applying the contract and

acting within the scope of his authority.”               Id. (quoting United

Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 (1987);

see also Delta Queen Steamboat Co. v. Dist. 2 Marine Eng’rs

Beneficial    Ass’n,   889    F.2d   599,   602   (5th   Cir.   1989)   (noting

arbitrators can look beyond the written CBA “if the instrument is

ambiguous or silent upon a precise question”).

     The “essence” test is met when the award has “a basis that is

at least rationally inferable . . . from the letter or purpose” of

the CBA.     Local Union No. 66, 71 F.3d at 183 (citation omitted).

The “essence” standard is interpreted expansively, rather than

restrictively, to uphold awards.            Int’l Ass’n of Machinists &



                                       6
Aerospace Workers, Dist. 776 v. Texas Steel Co., 538 F.2d 1116,

1121 (5th Cir. 1976).          However, the “essence” test is not met – and

courts can set aside awards – when the arbitrator acts contrary to

express contractual provisions, thus exceeding her contractual

mandate.        See    Delta   Queen,     889   F.2d   at   602,   604;    see   also

Steelworkers, 363 U.S. at 597 (noting courts must refuse an award

that “manifests an infidelity” to the essence standard).

Whether the district court erred in finding that the panel did not
exceed its authority under the CBA in awarding the grievants
certain back benefits.

     Here, Article XIX, Arbitration Procedure, of the CBA provided

that:

     [T]he case will be presented to the impartial arbitrator
     on the earliest possible date and his/her decision will
     be final and binding upon both parties to this agreement.
     Such decision shall be within the scope and terms of this
     agreement and shall not change any of its terms or
     conditions.

(Emphasis added).        The agreement governing the instant arbitration

also noted that “the authority of the arbitrators and all other

aspects    of    the    hearing    will    be   governed     by    the    collective

bargaining agreement.”

     Dow argues that the panel overstepped its authority under the

CBA by awarding the grievants 2002 performance awards, vacation pay

for 2001, and 401(k) benefits because those benefits conflicted

with the express language of the CBA.             Exhibit E of the CBA states:

“Employees who during the year are placed on disciplinary probation

as a result of an Employee Review Board decision, or who receive

                                           7
disciplinary time off will be excluded from that year’s performance

award.”   Dow argues this plain language means that because the

grievants received disciplinary time off in 2002 due to the panel’s

imposed 18-month suspension (which indeed spanned the beginning of

2002), they were all ineligible to receive “that year’s performance

award.”

      Dow similarly argues that Article XI, Vacations, of the CBA

only permits vacation benefits for employees who have “drawn pay”

during that year.   Therefore, because the grievants were placed on

disciplinary suspension for all of 2001, they drew no 2001 pay and

would not have been eligible for any 2001 vacation time.   Dow also

claims that vacation under the CBA usually equals paid time off;

vacation equals “pay” only in certain circumstances, such as injury

or illness, retirement, being laid off, or quitting with notice.1

      Finally, Dow contends that because the CBA nowhere provides

for 401(k) benefits at all, the panel could not have been drawing

from the essence of the CBA in fashioning that award.      Dow also

argues that under the clear terms of its 401(k) plan, Article 3,

Contributions, the grievants are ineligible to contribute to their

401(k) plans because contributions can only come from a Union

  1
      Dow also claims the district court entirely misconstrued the
vacation issue. Instead of whether any vacation pay or time was
proper for 2001, the district court suggested that the issue was
whether 2001 time could be accrued and then applied to 2002
vacation. Upon review, Dow seems correct, but this makes little
difference to our determination that the district court did not err
in finding the panel’s vacation award for 2001 meets the “essence”
test.

                                 8
employee’s    pretax   or   after-tax     “Hourly     Wage.”         Because   the

grievants did not earn any wages during their suspension, to allow

them to contribute and to make Dow match contributions would be

prohibited by the 401(k) plan and would violate federal public

policy under the Internal Revenue Code and Treasury Regulations.

      The Union’s consistent response to all of Dow’s challenges to

the award is that arbitrators must be given flexibility to fashion

remedies when they are “commissioned to interpret and apply the

collective bargaining agreement” because “[t]he draftsmen may never

have thought of what specific remedy should be awarded to meet a

particular contingency.” Steelworkers, 363 U.S. at 597. The Union

urges that courts must adhere to a very limited and deferential

review of awards in order to further the federal policy of settling

labor disputes through arbitration.         See id. at 596.

      Thus,   the   Union   argues,   because   the    CBA     had    no   express

provision detailing the exact types of performance award remedies

that wrongfully discharged employees reinstated through arbitration

would be eligible for,2 the arbitrators were doing what the CBA

expressly authorized them to do when they awarded the grievants


  2
    Dow claims that these particular grievants could not be treated
in a manner “above and beyond what any other employees returning to
work under similar circumstances would have been permitted to
receive under the CBA.”    However, the CBA does not provide the
proper remedies for employees “similar” to the grievants.        It
arguably provides for what happens when Dow itself places employees
on disciplinary probation or time off, not when an arbitration
panel decides to downgrade Dow’s wrongful discharge of certain
employees to a suspension.

                                      9
performance awards for 2002 – making a “final and binding” decision

that did not “change any of [the CBA’s] terms or conditions.”

     The Union similarly claims that because the CBA contained no

express    provision     to    confer     vacation         benefits        on     employees

reinstated    through     arbitration,         the    panel        acted        within   its

authority to grant the grievants the time or pay “they otherwise

would have received had they worked the entire time since August,

2000, for each year.”         Thus, for the purpose of vacation benefits,

the grievants were to be treated as if they had drawn pay in 2001.

     Finally, the Union asserts that because the CBA specified no

available    401(k)    remedies     for    this      situation,       the        panel   was

authorized    to   fashion      a   proper         remedy.         While        the   Union

acknowledges the CBA makes no mention of the Dow 401(k) plan, it

argues that the panel’s source of authority while fashioning

remedies does not merely stem from the literal words of the CBA

alone.    The Union also dismisses Dow’s public policy arguments,

noting that the panel itself recognized the contributions might not

be eligible under Dow’s 401(k) plan.                 This is precisely why the

panel    alternatively    allowed       for    a    lump     sum    payment        for   the

grievants’ “private investment or other use.”

     As the district court correctly pointed out, it need not be

privy to the panel’s precise rationale for awarding the grievants

only a 2002 performance award. Courts must only satisfy themselves

that the award draws its essence from the CBA and is not contrary

to any express contractual provision.                The CBA’s performance award

                                          10
provision, as the district court found, could be construed as

ambiguous in that it could be interpreted to bar performance awards

either (1) in each year an employee is away from work due to

disciplinary probation or time off or (2) just “during the year” an

employee is first placed on disciplinary probation or time off.3

In other words, the panel drew from the essence of the CBA to

fashion an equitable remedy in these circumstances for these

grievants who, granted, wrongly sent inappropriate email but also

whom Dow wrongly terminated.

      The district court was also correct in finding that the

panel’s decision to award vacation pay or time for 2001 was an

equitable determination drawn in essence from the “purpose” of the

CBA. It did not contradict any express provision because there was

no prohibition against granting retroactive vacation time or pay to

reinstated employees.   The only express prohibitions, as the Union

  3
    Dow places much emphasis on the fact that the panel made no
reference to any ambiguous language in the CBA when awarding the
2002 performance awards. Again, though, the district court is only
to determine whether the panel was basing its award on “an arguable
construction and application of the CBA.” Weber, 253 F.3d at 824.
Arguably, the panel either found the performance award language in
the CBA ambiguous or that it could not be literally applied to the
situation of these specific grievants. Either explanation would
draw its essence from the CBA.     Indeed, the latter explanation
perhaps suggests why the panel in its second clarification
repeatedly stated, “The remedy provided is not necessarily an
interpretation   of   rights  under   the   Collective   Bargaining
Agreement.”    Dow claims this means the panel was expressly
disavowing making an interpretation under the CBA. However, this
phrase could indicate that the panel believed it could not
literally apply the CBA’s language to the grievants’ situation, so
rather it inferred a remedy from the “purpose” (not the “letter”)
of the CBA.

                                11
points out, apply to employees who quit without notice or who are

discharged for cause and are not applicable here.

      Finally, the district court found it difficult to swallow that

if,   instead    of   an    email   violation,   a     Union   member   had   been

wrongfully terminated based on race or gender discrimination, the

panel would exceed its authority under the CBA by allowing for an

appropriate 401(k)-type lump sum benefit, where the CBA was silent

as to such remedy.         This nonliteral reading of the CBA makes sense;

otherwise,      employees     reinstated     through    arbitration     would   be

entitled to virtually no benefits for the time they were under a

wrongful discharge under the literal provisions of the instant CBA.

The district court noted that an arbitrator’s award of a remedy

should be upheld even where the instant CBA neither permits nor

precludes such a remedy.         See Executone Info. Sys., Inc. v. Davis,

26 F.3d 1314, 1325 (5th Cir. 1994) (noting a previous decision by

the Fifth Circuit that allowed an award of back pay where the

underlying CBA made no mention at all of such remedy).              This is the

case here; the panel drew from the “purpose” of the CBA to award

401(k)-type benefits where the CBA was silent as to such remedy.

      What the arbitrators give or do not give as an explanation for

their award does not matter.          “This Court looks only to the result

reached. The single question is whether the award, however arrived

at, is rationally inferable from the contract.” Executone, 26 F.3d

at 1325 (citation omitted).          Here, we find the district court was


                                        12
correct in determining that the arbitration panel did not exceed

its authority in awarding back benefits to all the grievants except

Bonner.

Whether the district court erred in overturning the reinstatement
of and benefits awarded to grievant Bonner.

     In this Circuit, an LCA is considered to form a firm contract

– it functions as “a supplement to the CBA and is just as binding

upon the arbitrator.”    Int’l Union of Operating Eng’rs, Local 351

v. Cooper Natural Res., Inc., 163 F.3d 916, 919 (5th Cir. 1999).

When an arbitration panel ignores the explicit terms of an LCA, its

decision as to that employee is “owed no deference” and “must be

closely scrutinized.”    Cooper, 163 F.3d at 919.

     There is no dispute that Bonner had entered into an LCA with

Dow on October 21, 1997, and it appears that his three-year

probation period was to start on his first day back at work, which

was November 10, 1997.     Bonner’s October 1997 LCA clearly stated

that “failure to meet any job performance criteria, requirements,

policies, and/or expectations will result in [his] termination” and

that “any future performance problems . . . will result in [his]

termination.”    It     also   explicitly   listed   one   of   Bonner’s

performance issues as “possessing sexually oriented materials on

Dow property” in violation of Dow policy. Thus, the district court

correctly disregarded the Union’s argument that Bonner’s email

violation (forwarding a sexually explicit cartoon) could not be

considered a “performance problem.” However, the Union also argues

                                   13
that because Dow entered into another LCA with Bonner (for an

improper seed resin transfer) on June 16, 2000, after the email

investigation had started in early June 2000, the June 2000 LCA

took into account and thus superseded or waived the October 1997

LCA.   Finally, the Union relies on Weber, 253 F.3d at 824, for the

proposition that where a CBA is ambiguous as to “just cause,”

arbitrators act within their authority if they impose a punishment

(here, suspension) within the range contemplated by the CBA.

       Dow contends because the October 1997 LCA was in effect until

Bonner’s three-year probation period ended in November 2000, it was

free to terminate Bonner in August 2000 for his May 15, 2000, email

violation uncovered in the June/July 2000 investigation. It argues

the June 2000 LCA had no effect on the previous LCA because the

email investigation had just started and was still ongoing.           Thus,

it was not clear that Bonner had violated his October 1997 LCA at

the time.      Moreover, Bonner’s June 2000 LCA seemed to be a

concession on Dow’s part that this particular job performance error

would not activate his October 1997 LCA, in light of Bonner’s

“improved”   behavior,   but   also    acknowledged   that   Bonner   still

“currently ha[s] a last chance letter in [his] file.”         In essence,

Dow claims the October 1997 LCA acts to supplement the CBA; thus,

Bonner’s reinstatement is expressly contrary to that LCA and the

CBA.

       Dow puts forth the stronger argument.      Because the June 2000



                                      14
LCA referenced the October 1997 LCA and considered it still in

effect,   Dow     could   properly    rely   on   the   October   1997   LCA    to

terminate Bonner for possessing and sending improper sexually

oriented email.      Weber would only control were there not an LCA as

to Bonner in place (and did control as to the 11 grievants not

covered by an LCA).       Because the panel ignored the express terms of

the binding October 1997 LCA, its decision as to Bonner is not owed

any deference and must be carefully scrutinized.                  It fails such

scrutiny.    Therefore, the district court properly took the October

1997 LCA into account when it vacated the panel’s arbitration award

as to Bonner.

                                 CONCLUSION

     Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we AFFIRM the decision of the court below upholding the arbitration

award   as   to    all    grievants    except     Bonner   and    vacating     the

arbitration award as to Bonner.

AFFIRMED.




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