                                   UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 15-1924


DURHAM SCHOOL SERVICES LP,

                   Plaintiff - Appellant,

             v.

GENERAL DRIVERS WAREHOUSEMEN AND HELPERS LOCAL UNION
NO 509, a/w International Brotherhood of Teamsters,

                   Defendant – Appellee,

             and

PIEDMONT GRIEVANCE COMMITTEE; TOM HOUVOURAS; WAYNE
GIBBS,

                   Third Party Defendants.



Appeal from the United States District Court for the District of South Carolina, at
Charleston. David C. Norton, District Judge. (2:14-cv-01241-DCN)


Argued: December 6, 2016                                Decided: February 15, 2017


Before WILKINSON, AGEE, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.
Charles Preyer Roberts, III, CONSTANGY, BROOKS, SMITH & PROPHETE, LLC,
Winston-Salem, North Carolina, for Appellant.  Jonathan G. Axelrod, BEINS,
AXELROD, P.C., Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       After concluding that a regional grievance committee’s decision “drew its essence

from” and was “arguably construing or applying” a collective bargaining agreement

between    Durham     School    Services,   L.P.,   (“Durham”)       and   General   Drivers,

Warehousemen and Helpers, Local Union No. 509 (“the Union”), the district court held

that the decision in favor of the Union was enforceable. J.A. 738. Consequently, it

denied Durham’s motion for summary judgment, granted the Union’s motion for the

same, and entered judgment in favor of the Union. Durham now appeals. For the

reasons that follow, we affirm the judgment of the district court.



                                             I.

       Durham “provid[es] bus transportation to students in Charleston County,” South

Carolina. J.A. 726. In 2013, video surveillance footage captured a Durham employee—

bus driver Marquette Alston—using her cell phone on the job. Under the collective

bargaining agreement (“Agreement”) governing Alston’s employment, Durham could

bypass the usual progressive discipline procedure and immediately discharge bus drivers

after the first offense for “use of personal items such as cell phones while operating a

passenger transport vehicle.” J.A. 86–87. Upon learning of Alston’s cell-phone usage,

Durham notified Alston that it was terminating her employment.

       Alston followed the Agreement’s grievance procedure, arguing that she had been

unjustly terminated because mitigating circumstances made a lesser punishment more

appropriate. After her grievance was denied in the initial local stages, she pursued the

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next step authorized under the Agreement, referring her “unjust termination” to the

Piedmont Grievance Committee (the “Committee”), a regional authority comprised of

representatives from participating employers and unions. J.A. 279.

       The Committee meets regularly to hear disputes among its members; it sits in

panels consisting of a minimum of two employer and two union representatives who are

not affiliated with the aggrieved parties.        Because Alston’s grievance involved a

termination of employment, the Committee’s bylaws provided that Durham would

present any evidence relevant to its case first, “after which [the Union] shall present [its]

version of [the] controversy. Each party shall then be allowed one (1) rebuttal.” J.A.

102.

       In presenting its case-in-chief before the Committee, Durham called several

witnesses to describe the Agreement, Alston’s offense, and the decision to terminate

Alston’s employment. It also showed the video footage of Alston using her cell phone on

the bus.

       After Durham closed its case, the Committee panel invited the Union to present its

case. Instead, the Union raised a point of order asserting that Durham “never presented a

discharge letter. . . . This panel . . . has made these rulings [in prior Committee cases] that

if there is no [discharge letter] presented[,] there is no discharge. That’s the Point of

Order.” J.A. 324.

       Durham replied that it had not presented the letter because “[n]obody denies that

[Alston] was discharged” in accordance with the Agreement. J.A. 325. Durham offered

to produce the termination letter immediately, if the Committee wanted a copy. A

                                              4
Committee panel member questioned Durham, confirming that the employer had a copy

of the Committee’s rules and procedures and that it was “aware that [it’s] able to present

any and all evidence in support of [its] case to the Committee.” J.A. 326. Durham

replied that although it was aware of the Committee’s bylaws, it did not read them to

require the presentation of undisputed evidence such as the letter terminating Alston’s

employment.

      The Committee panel broke for an executive session and returned the following

decision: “[T]he Point of Order by the Union is upheld. Fee Company.” J.A. 328.

      When Durham did not reinstate Alston after the Committee rendered its decision,

the Union contacted the Committee and asked it to document what the prior ruling meant.

Two Committee members, one a panel member and one a non-panel member who served

as the Committee’s co-Chairman, responded, stating that the Union had prevailed.

      Durham filed a complaint against the Union in the U.S. District Court for the

District of South Carolina seeking to bar enforcement of the Committee’s decision as a

violation of § 301 of the Labor Management Relations Act of 1959, 29 U.S.C. § 185.

Durham maintained that the Committee’s decision “ignored the plain language of the

[Agreement], disregarded the [Committee’s] own By-Laws, and failed to draw its essence

from the” Agreement and bylaws. J.A. 18. It also asserted that the Committee acted in

bad faith and had denied Durham “a fundamentally fair hearing.” J.A. 18. The Union

filed a counterclaim seeking enforcement of the Committee’s decision.

      Both parties filed motions for summary judgment. In support of its motion, the

Union submitted depositions from two Committee panel members: Roosevelt A. Via (a

                                            5
union member) and Thomas L. Houvouras (an employer member). Both panel members

described prior Committee rulings that had been decided on similar points of order,

where no discharge letter had been made part of the employer’s case. Via explained that

in this case, because Durham was the moving party in a case involving “unjust

termination,” the letter of termination should have been presented as part of its case. He

stated that during their deliberation of the grievance, the panel members had discussed

their understanding of the Committee bylaws and the role that the Committee’s past

decisions should play in their decision-making process, observing that “if the union

brought a case [to the Committee] that did not have a grievance in it, . . . the union would

get the same ruling, because the grievance itself is the moving part of the grievance

process.   Just like the termination letter would have been the moving part of the

company’s process.” J.A. 240. In addition, both panel members explained that the focus

of the point of order is to raise a procedural objection, and that the letter should have been

part of Durham’s case-in-chief; the panel did not allow Durham to submit the letter after

the point of order had been made because it was too late to do so then.

       The district court granted the Union’s motion, first setting out its highly

deferential standard of review and then concluding that the Committee panel members’

deposition testimony “provided a basis in the by-laws and the [Agreement] for the

[Committee’s] decision to uphold the Union’s point of order and reinstate Alston.” J.A.

738. In sum, the district court held that because the Committee was “arguably construing

or applying the contract and acting within the scope of [its] authority,” the Committee’s

decision “draws its essence from the [Agreement] and [Committee] by-laws.” J.A. 738.

                                              6
As such, the court concluded the Committee’s decision was enforceable and it entered

judgment in favor of the Union.

       Durham noted a timely appeal, and we have jurisdiction under 28 U.S.C. § 1291.



                                            II.

       On appeal, Durham continues to argue that the Committee’s decision is

unenforceable because it decided an issue not submitted to it, that it denied Durham a fair

hearing in accordance with the Agreement and Committee bylaws, and it issued a

decision that contradicts the Agreement’s plain language allowing Durham to terminate

Alston’s employment. We review the district court’s grant of summary judgment de

novo, applying the same standard as the district court. Hunter v. Town of Mocksville, 789

F.3d 389, 395 (4th Cir. 2015). Summary judgment is appropriate when, viewing the facts

in the light most favorable to the non-moving party (Durham), “there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

See id.; see also Fed. R. Civ. P. 56(a). We also review the district court’s determination

of whether the Committee exceeded the scope of its authority de novo, as that is a

question of law. See Island Creek Coal Co. v. District 28, UMWA, 29 F.3d 126, 129 (4th

Cir. 1994).

       That said, our review of the Committee’s conduct is much narrower. Out of

respect for parties’ mutually bargained-for terms of a collective bargaining agreement

and recognizing the efficiency and finality of the labor negotiation process, courts take a

very deferential approach to reviewing decisions arising out of that process. Although

                                            7
the referral to the Committee is not identical to arbitration, because the Agreement

specified that the parties would be bound by any non-deadlocked decision of the

Committee, the Court approaches the Committee’s decision in the same way it would an

arbitration award. Int’l Longshoremen’s Ass’n v. Cataneo, Inc., 990 F.2d 794, 799 n.11

(4th Cir. 1993) (“A grievance committee’s decision is entitled to substantial deference,

similar to that of an arbitration award, and cannot be overturned as long as it is based

upon some support in the record.”).

       Consequently, our review of the Committee’s decision in this case is “severely

limited” and “among the narrowest known to the law.” District 17, UMW v. Island Creek

Coal Co., 179 F.3d 133, 136-37 (4th Cir. 1999) (internal quotation marks omitted). In

particular, “courts are not authorized to reconsider the merits of [a decision] even though

the parties may allege that the [decision] rests on errors of fact or on misinterpretation of

the contract.” United States v. Paperworker’s Int’l Union v. Misco, Inc., 484 U.S. 29, 36

(1987). “[A]s long as the [Committee] is even arguably construing or applying the

contract and acting within the scope of [its] authority, that a court is convinced [it]

committed serious error does not suffice to overturn [its] decision.” Id. at 38. We will

only vacate the Committee’s decision if “it violates clearly established public policy, fails

to draw its essence from the collective bargaining agreement, or reflects merely the

[decision-maker’s] personal notions of right and wrong.” Yuasa, Inc. v. Int’l Union of

Elec., Elec., Salaried, Mach. & Furniture Workers, 224 F.3d 316, 321 (4th Cir. 2000).

Absent evidence that the Committee flouted its contracted-for responsibilities to



                                             8
adjudicate disputes under the Agreement, the Court must affirm the Committee’s

decision.

       With these principles in mind, we turn to Durham’s arguments. At the outset, the

Committee did not act beyond the scope of the grievance before it. The referral was

broadly worded, listing the grievance to be decided by the Committee as Alston’s “unjust

termination.” J.A. 279. Just as broadly, the referral cited “Article 20 and all applicable

articles” of the Agreement as the provisions that had been violated. J.A. 279. Article 20

covers employee discipline, and includes everything from the progressive disciplinary

system and conduct for which an individual can be discharged based on the first offense

to the procedure for notifying employees and the Union of disciplinary action, including

termination of employment. Regardless of the parties’ understanding of their dispute, the

referred grievance encompassed the entirety of Alston’s termination of employment. The

Committee thus acted within the scope of its authority to resolve the submitted grievance

when it determined that absent a letter of termination, Durham could not prove its case-

in-chief and the Union should prevail on its point of order.

       Durham next contends the Committee denied it a fair hearing by disregarding the

Agreement and the Committee bylaws, and by requiring Durham to do something the text

of those provisions did not plainly demand. We disagree. The Committee’s decision

draws its essence from the parties’ Agreement. Article 12 of the Agreement states that

unresolved grievances will be submitted to the Committee and that the Committee’s

decision will be “final and binding.” J.A. 80. It further notes that grievances will be

“heard in accordance with the Rules of Procedure of” the Committee, and it is not

                                             9
disputed that these Rules of Procedure are the Committee’s bylaws. J.A. 80. Article VII

of the Committee bylaws, in turn, allow parties to “present any evidence bearing on the

facts of a particular case” in their case-in-chief, after which the other side presents its

case, followed by one rebuttal each. J.A. 101. The bylaws instruct the panel chairman to

“maintain order and make final rulings on all Points of Order, consistent with” Robert’s

Rules of Order. J.A. 102. And the Committee’s decision must be made “based on the

pertinent facts presented by the parties.” J.A. 102. Nothing in what occurred below

violates this process.

       The parties submitted the matter of Alston’s unjust termination to the Committee.

Consistent with its bylaws, the Committee allowed Durham to present the totality of its

case-in-chief. It then proceeded to allow the Union to have its turn, but instead, the

Union raised a point of order challenging the sufficiency of Durham’s case-in-chief.

Points of order are a recognized procedural practice expressly authorized (though not

detailed) in the Committee bylaws. That point of order halted the proceedings and

required a ruling before continuing. As it so happened, ruling on the point of order

resolved the dispute submitted to the Committee as to whether there was an unjust

termination. That the Committee’s decision was based on a procedural ruling following

its conclusion that Durham had failed to prove a necessary part of its case does not mean

that the Committee’s decision or process was fundamentally unfair or ignored either the

Agreement or the Committee’s bylaws.             At bottom, Durham disagrees with the

Committee’s interpretation and application of the rules governing its hearing, but it has



                                            10
not shown that the Committee was not attempting to construe and apply those rules.

Absent such proof, its argument fails.

       The depositions from Committee panel members Via and Houvouras confirm our

assessment that the Committee’s decision was based on its understanding and

interpretation of the Agreement and Committee bylaws. They also confirm that the

Committee was acting in accord with its past interpretation of similar points of order.

Even if the Court were to disagree with the Committee’s interpretation, we cannot

conclude that the Committee panel was enforcing its own “notions of industrial justice”

or “right and wrong” rather than attempting to construe the Agreement and its

incorporated rules. E.g., Misco, 484 U.S. at 38 (recounting that our review is for whether

the decisionmaker was “even arguably construing or applying the contract”);

Mountaineer Gas Co. v. Oil, Chem. & Atomic Workers Int'l Union, 76 F.3d 606, 608 (4th

Cir. 1996) (emphasizing that the Court’s review is to “determine only whether the

arbitrator did his job—not whether he did it well, correctly, or reasonably, but simply

whether he did it”).

       The record also belies Durham’s contention that the entire Committee “process

was permeated by bad faith.” Appellant’s Opening Br. 23. The crux of Durham’s

argument on this point is that the Committee improperly adjudicated the case by means of

a procedural ruling that in turn was based on an unwritten interpretation of its bylaws.

       But it would be impossible for a collective bargaining agreement and other rules

governing arbitration-like proceedings to contemplate every possible scenario. Once the

matter was referred to the Committee, the Committee had to interpret and apply the

                                            11
governing written rules. Consistent with this understanding, the Supreme Court has

expressly recognized that in carrying out its duties an arbitrator—or, as here, the

Committee—is “‘not confined to the express provisions of the contract,’ but may also

look to other sources—including the ‘industrial common law’—for help in construing the

agreement.” Nat’l Postal Mail Handlers Union v. Am. Postal Workers Union, 589 F.3d

437, 443 (D.C. Cir. 2009) (quoting United Steelworkers of Am. v. Warrior & Gulf

Navigation Co., 363 U.S. 574, 581–82 (1960)); see also Steelworkers v. Enterprise Wheel

& Car Corp., 363 U.S. 593, 597 (1960) (stating that arbitrators may “look for guidance

from many sources” during the performance of their duties).

       And while it may be preferable for disputes to be decided on their merits, courts

and other adjudicators often make procedural rulings that end up being dispositive of the

entire dispute. That consequence alone is not evidence of bad faith. Courts have a

similar mechanism under Rule 50(a) of the Federal Rules of Civil Procedure. As the

Union states, the Committee’s use of a point of order to assess the sufficiency of

Durham’s case-in-chief to proceed was “analogous to a motion under Rule 50(a) of the

Federal Rules of Civil Procedure, which authorizes a court to dismiss a case if the party

with the burden of proof fails to present a prima facie case.” Response Br. 27. The

above principles demonstrate that the Committee did not engage in bad faith by relying

on grounds that were not expressly set out in the Agreement or Committee bylaws to

adjudicate the parties’ grievance.

       Lastly, Durham urges that the Committee’s decision cannot be enforced because it

contradicts both the plain language of the Agreement, which authorized Durham to

                                           12
terminate Alston’s employment upon the first cell phone violation, and the undisputed

videotape evidence depicting Alston violating that policy. This argument improperly

asks us to engage the merits of the parties’ dispute.         The Supreme Court has

unequivocally reiterated that “courts . . . have no business weighing the merits of the

grievance, considering whether there is equity in a particular claim, or determining

whether there is particular language in the written instrument which will support the

claim.” United Steelworkers of America v. Am. Mfg. Co., 363 U.S. 564, 567-68 (1960);

Enterprise Wheel, 363 U.S. at 599 (stating that the “proper approach” for courts is to

“refus[e] . . . to review the merits” of a labor arbitration award). Instead, the Court’s

authority to review the Committee’s decision is limited to the question of whether the

Committee “did [its] job.” Yuasa, 224 F.3d at 321. Having determined that it did, our

review ends.



                                          III.

      For the aforementioned reasons, we affirm the district court’s grant of summary

judgment to the Union.

                                                                            AFFIRMED




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