                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT

                                  ___________

                                  No. 99-4219
                                  ___________

Trailmobile Trailer, LLC, Successor     *
by Merger with Gemala Trailer           *
Corporation,                            *
                                        *
              Appellant,                * Appeal from the United States
                                        * District Court for the
       v.                               * Eastern District of Arkansas.
                                        *
International Union of Electronic,      *
Electrical, Salaried, Machine and       *
Furniture Workers, AFL-CIO;             *
Local Union No. 1149,                   *
                                        *
              Appellees.                *
                                   ___________

                            Submitted: June 12, 2000

                                Filed: August 14, 2000
                                 ___________

Before WOLLMAN, Chief Judge, McMILLIAN, and BYE, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.
      Trailmobile Trailer, LLC (Trailmobile), appeals from the district court’s1 grant
of summary judgment enforcing an arbitration decision. We affirm.

                                           I.

       The facts are undisputed. Gwen Wigginton worked as a painter for Trailmobile
until January 14, 1997, when he was discharged for an altercation with co-worker Joe
Garcia that occurred on the previous day. At Trailmobile’s facility, workers such as
Wigginton are represented by the International Union of Electronic, Electrical, Salaried,
Machine and Furniture Workers, AFL-CIO, and its Local Union, No. 1149
(collectively, the union).

      The agreement between the union and Trailmobile includes the following four
provisions:2

         “[T]his Agreement does not affect and shall not be deemed or construed to
impair or limit in any way the Employer’s right in its sole discretion and judgment, to
. . . hire, promote, demote, and transfer, to suspend, discipline and discharge for just
cause; . . . . The Employer shall also have the right . . . to make and enforce . . .
reasonable rules . . . .” Art. II (management rights clause).

        “In the event an employee is discharged and he believes there is no just cause,
he . . . shall grieve the matter . . . .” Section 10.4.



      1
       The Honorable Susan Webber Wright, Chief United States District Judge for
the Eastern District of Arkansas.
      2
       The quoted agreement became effective on December 4, 1997. This is the
contract that the parties provided, so we assume that its language does not deviate in
any relevant way from that of the agreement in effect when the fight occurred.

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      “The arbitrator shall have no authority to amend, modify, nullify, ignore, add to
or subtract from the provisions of the Agreement.” Section 11.3.

      “In any case in which the discharge or discipline of an employee is at issue, the
Arbitrator shall determine whether the discharge or discipline was for just cause.”
Section 11.6.

      The employee handbook promulgated by Trailmobile states that: “Following are
examples of some offenses which may subject an employee to immediate discharge
without warning:
      a.    Any act which might endanger the safety or lives of others.
        ...
      i.    Fighting on Trailmobile’s premises (any employee directly
      involved).”

Wigginton was discharged for violating rules 2a and 2i of the handbook.

      After Wigginton’s termination, the union filed a grievance on his behalf. The
process failed to achieve a successful resolution, and the parties then submitted the
matter to an arbitrator, stipulating to the following issue: “Did the Company have just
cause for terminating Gwen Wigginton? If not, what should the remedy be?”

       Although concluding that Wigginton “[p]robably . . . could have turned his cheek
one more time,” the arbitrator found that Garcia had provoked and pushed Wigginton
to start the fight, and that Wigginton had responded in self-protection. For two years
or more Garcia had harassed and played nasty tricks on Wigginton, who had rarely
retaliated, instead requesting transfers from management. The arbitrator noted that
although Wigginton “got in some blows” during the altercation, both men testified that
machinery and parts caused some of Garcia’s injuries. The arbitrator determined that
Garcia was “wholly at fault in provoking” the altercation, and noted that although

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several employees had been discharged for fighting, there was also testimony that
others had received lesser penalties for such conduct. The arbitrator then concluded
that just cause did not exist for Wigginton’s discharge and ordered that he be reinstated
with retroactive benefits, less two months’ salary.

       Trailmobile then sought to vacate the arbitrator’s award in the district court. The
union counterclaimed for enforcement. The court concluded that the arbitrator’s
decision was within his authority and entered judgment in favor of the union.
Trailmobile appeals, arguing that the arbitrator imposed his own brand of industrial
justice and ignored the plain language of the contract.

                                           II.

       We review de novo both the district court's grant of summary judgment, see
Taylor v. Nimock’s Oil Co., 214 F.3d 957, ___ (8th Cir. 2000), and the court’s legal
conclusions in its denial of a motion to vacate an arbitration award, see Homestake
Mining Co. v. United Steelworkers, 153 F.3d 678, 680 (8th Cir. 1998). Our review of
an arbitration award generally involves two inquiries: (1) Did the parties agree to
arbitrate? and (2) Did the arbitrator have the power to make the award that he made?
See Keebler Co. v. Milk Drivers & Dairy Employees Union, Local No. 471, 80 F.3d
284, 287 (8th Cir. 1996). Only the answer to the second question is disputed.

       Judicial review of a final arbitration decision is extremely narrow. “[A]s 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.” United Paperworkers Int'l Union v. Misco, Inc., 484
U.S. 29, 38 (1987). We will vacate an arbitration award as beyond the power of the
arbitrator only in certain circumstances; if, for example, it exceeds the arbitrator’s
power, see 9 U.S.C. § 10(a)(4), or if the award fails to “draw its essence” from the
contract between the disputants. See Osceola County Rural Water Sys., Inc. v.

                                           -4-
Subsurfco, Inc., 914 F.2d 1072, 1075 (8th Cir. 1990). Although the arbitrator's
authority is broad, it is not unlimited. See id. For example, the arbitrator may not
disregard or modify unambiguous contract provisions. See id.

       Trailmobile contends that the arbitrator ignored the plain language of the
management rights clause, which grants to it “sole discretion” in employment decisions.
Trailmobile concedes, however, that its authority to discipline is limited by the
requirement that such discipline be for “just cause,” a term that is not defined in the
contract. Notwithstanding this concession, Trailmobile argues that the arbitrator’s
finding that Wigginton was involved in a fight constituted an implicit finding of just
cause for discharge, inasmuch as discharge is the default penalty fixed by the employee
handbook for that infraction. Trailmobile asserts that because the plain language of the
contract gives to it the authority in its sole discretion to determine appropriate
punishment, the arbitrator’s decision was not drawn from the essence of the contract.
We disagree.

       Whether Wigginton was discharged for just cause was a matter of contract
interpretation within the arbitrator’s domain. The parties’ request gave the arbitrator
the authority to decide the issue of whether just cause existed for termination. See
Homestake Mining, 153 F.3d at 680 (“[W]e will not give credence to [the party’s]
argument that the arbitrator had no authority to decide an issue it agreed to submit.”)
(internal quotation marks omitted); Misco, 484 U.S. at 37 (“[T]he moving party should
not be deprived of the arbitrator's judgment, when it was his judgment and all that it
connotes that was bargained for.”) (quotation marks and citation omitted); IMC-Agrico
Co. v. International Chem. Workers Council of the United Food & Commercial
Workers Union, 171 F.3d 1322, 1329 (11th Cir. 1999) (“The arbitrator’s decision in
this case was exactly what the parties bargained for and it should not be disturbed.”).
Having requested that the arbitrator determine whether Wigginton was discharged for
just cause, Trailmobile will not now be heard to complain that the arbitrator performed
the analysis that it requested instead of making a purely factual finding. It was for the

                                          -5-
arbitrator to harmonize any discordant provisions within the contract relating to the
discretionary authority granted management and the just-cause requirements limiting
that authority. See Homestake Mining, 153 F.3d at 680.

      Moreover, the arbitrator did not ignore the plain language of the agreement when
he interpreted the contract. Trailmobile urges us to recognize that its employee
handbook rules promulgated pursuant to the management rights clause have the force
of contract provisions, citing Mountaineer Gas Co. v. Oil, Chem., & Atomic Workers
Int’l Union, 76 F.3d 606, 610 (4th Cir. 1996) (“[W]hen the . . . agreement reserves to
management the right to make and enforce disciplinary rules, any rules or policies . .
. are thus incorporated into the collective bargaining agreement and have the force of
contract language.”), which in turn relied on General Drivers, Warehousemen &
Helpers Local Union 968 v. Sysco Food Servs., Inc., 838 F.2d 794, 796 n.1, 799 & n.4
(5th Cir. 1988).

       Other courts of appeals have declined to apply Mountaineer in the broad way
that Trailmobile suggests, holding instead that when an agreement does not define just
cause and does not include an explicit provision for offenses that will lead to
termination, a reviewing court must defer to an arbitrator’s interpretation of the just
cause provisions. See IMC-Agrico, 171 F.3d at 1328; First Nat’l Supermarkets, Inc.
v. Retail, Wholesale & Chain Store Food Employees Union Local 338, 118 F.3d 892,
896-97 (2d Cir. 1997). The Second Circuit rejected Mountaineer’s broad holding
because the agreement of the parties in Sysco Food Services included a management
rights clause that “explicitly provided that the Company had the right ‘to make and
enforce rules and regulations and that violation thereof may be just cause for the
discipline or discharge of employees,’” and which “stated that ‘[t]he only question
which may be the subject of a ‘grievance’ is whether or not the disciplined employee
did or did not engage in the specific conduct which resulted in the disciplinary action.’”
First Nat’l Supermarkets, 118 F.3d at 897 (quoting Sysco Food Servs., 838 F.2d at


                                           -6-
796.). No such provisions existed in the contract at issue in First Nat’l Supermarkets.
See id.

       Our case law similarly differentiates between explicit contractual language and
rules or policies promulgated under a general management rights clause like the one in
the present case. In Local 238 Int’l Bhd. of Teamsters v. Cargill, Inc., 66 F.3d 988,
989-90 (8th Cir. 1995) (per curiam), an employee was discharged pursuant to a drug
policy incorporated by reference into an agreement that provided that any disputes over
the policy would trigger the grievance process. We stated that if the agreement had
“expressly provided that an employee . . . will be terminated, we would agree . . . that
the arbitrator’s award ignored the plain mandatory language of that agreement,” but the
“policy was not written verbatim into” the agreement, and thus because there remained
a tension or ambiguity in the contract provisions, we upheld the arbitrator’s
interpretation. Id. at 990 (internal quotation marks omitted). Concerning remedy, we
upheld the arbitrator’s decision that “when the parties agreed to commit drug and
alcohol policy disputes to the normal grievance/arbitration process, that included such
remedial discretion as an arbitrator customarily has in reviewing terminations for just
cause.” Id. In contrast, in Excel Corp. v. United Food & Commercial Workers Int’l
Union, Local 431, 102 F.3d 1464, 1466, 1470 (8th Cir. 1996), we vacated an
arbitrator’s award because the relevant contract contained a clause that provided that
“[a]n employee shall lose [his job] for the following reasons,” and then listed the
infractions, one of which the employees had admittedly violated. We held that “[w]hen
the [agreement] contains an express provision authorizing the termination of an
employee for specific conduct, the general ‘for cause’ provision . . . does not conflict
with the express discharge provision and thus no ambiguity exists.” Id. at 1470.

       Trailmobile’s handbook rules were not expressly written into the contract, which
specifically provided for arbitration of disputes regarding discharge, and Trailmobile
cites to no contract limitation on the arbitrator’s power of remedy other than the
provisions for employer discretion previously discussed. Furthermore, the handbook

                                          -7-
rule provides that an employee “may” be discharged, suggesting a case-by-case
analysis that further supports the arbitrator’s decision to review the choice of a
disciplinary measure. Accordingly, we conclude that the arbitrator did not violate the
plain language of the contract when he determined that Wigginton had engaged in
fighting and yet should not have been discharged.

       Trailmobile’s final contention is that the arbitrator should have considered the
union’s failure to object to or grieve past discharges as a “common law of the shop”
that gives to Trailmobile the discretion to determine whether discharge is appropriate.
We find this argument to be without merit. Whatever the union’s passivity in the past,
the contract provides that past practices shall not “be considered as a waiver or
lessening of any Union, employee or Company right provided in this Agreement.”
Section 11.5. In any event, we note that the arbitrator did in fact consider testimony
on the subject of what penalties employees had received for fighting in the past.

       In sum, it was the arbitrator’s task to reconcile the contract provisions to
determine whether there was just cause for Trailmobile to discharge Wigginton. The
arbitrator brought his experience to bear and “entered an award in accordance with
[his] understanding of the meaning of the contract provisions. That was [his]
prerogative and duty, and we see no justification for setting aside” the award. Osceola,
914 F.2d at 1075.

      The judgment is affirmed.

      A true copy.

             Attest:

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


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