PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES POSTAL SERVICE,
Plaintiff-Appellee,
v.
No. 99-1562
AMERICAN POSTAL WORKERS UNION,
AFL-CIO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-98-1355-A)
Argued: November 30, 1999
Decided: February 25, 2000
Before WILKINSON, Chief Judge, KING, Circuit Judge,
and Cynthia Holcomb HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Senior Judge Hall joined. Judge King wrote a dis-
senting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Susan Lynne Catler, O'DONNELL, SCHWARTZ &
ANDERSON, P.C., Washington, D.C., for Appellant. Anne Norris
Graham, UNITED STATES POSTAL SERVICE, New York, New
York, for Appellee. ON BRIEF: Peter J. Leff, O'DONNELL,
SCHWARTZ & ANDERSON, P.C., Washington, D.C., for Appel-
lant. R. Andrew German, Managing Counsel, Legal Policy, UNITED
STATES POSTAL SERVICE, New York, New York; Helen F.
Fahey, United States Attorney, Dennis E. Szybala, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
The American Postal Workers Union (APWU) and the United
States Postal Service (Postal Service) are parties to a national collec-
tive bargaining agreement. This agreement gives the Postal Service
the right to separate any probationary employee at any time during the
90-day probationary period. The agreement also unambiguously
denies probationary employees access to the grievance procedure in
relation to a separation. The APWU nonetheless filed a grievance
attacking the separation of a probationary employee and appealed the
matter to arbitration. In the face of clear contractual language to the
contrary, the arbitrator held that the grievance was arbitrable. The dis-
trict court vacated the award on the ground that the arbitrator
exceeded his authority. See United States Postal Serv. v. American
Postal Workers Union, 46 F. Supp. 2d 457 (E.D. Va. 1999). Because
the arbitrator completely rewrote the collective bargaining agreement
by creating a new class of arbitrable grievances, we affirm the district
court's judgment.
I.
A.
This case revolves around the provisions of the 1994 national col-
lective bargaining agreement (National Agreement) between appellant
APWU and appellee Postal Service. Article 15 of the National Agree-
ment prescribes a grievance-arbitration procedure for the resolution of
any dispute between the parties "related to wages, hours, and condi-
2
tions of employment." The last step of this procedure is binding arbi-
tration. If the parties reach arbitration, Article 15.5.A(6) dictates that
an arbitrator's decisions "shall be limited to the terms and provisions
of this Agreement, and in no event may the terms and provisions of
this Agreement be altered, amended, or modified by an arbitrator."
Article 12 of the National Agreement, however, expressly excludes
probationary employees from the grievance-arbitration procedure to
contest a separation. New postal employees must serve a 90-day pro-
bationary period before becoming permanent employees. Article
12.1.A states: "The Employer shall have the right to separate from its
employ any probationary employee at any time during the probation-
ary period and these probationary employees shall not be permitted
access to the grievance procedure in relation thereto." This unequivo-
cal language is reinforced by Article 15.5.A(6)'s prohibition on arbi-
tral modification of the agreement.
Article 19 of the National Agreement fortifies the supremacy of the
contract's terms over any Postal Service handbook or manual. Article
19 provides: "Those parts of all handbooks, manuals and published
regulations of the Postal Service, that directly relate to wages, hours
or working conditions, as they apply to employees covered by this
Agreement, shall contain nothing that conflicts with this Agreement,
and shall be continued in effect except that the Employer shall have
the right to make changes that are not inconsistent with this Agree-
ment and that are fair, reasonable, and equitable."
B.
Huong Hoang was employed by the Postal Service as a part-time
clerk in Arlington, Virginia. On February 19, 1997, during Hoang's
probationary period, the Postal Service officially notified her in writ-
ing that she had been rated "unsatisfactory" in her last probationary
evaluation and would be separated the following day.
The APWU then filed a grievance on Hoang's behalf challenging
her separation. The APWU claimed, inter alia, that the Postal Service
failed to comply with certain provisions of the Postal Service's
Employee and Labor Relations Manual (ELM) in attempting to sepa-
rate Hoang. The APWU asserted that the proper official did not initi-
3
ate the separation (ELM 365.325) and that the separation notice failed
to include the requisite "conclusions as to the inadequacies of perfor-
mance or conduct" (ELM 365.326). The APWU argued that the
Postal Service's attempt to separate Hoang during her probationary
period was therefore not effective and the Postal Service would
instead have to follow the discharge procedure applicable to perma-
nent employees if it wanted to terminate Hoang. The APWU con-
tested Hoang's separation on other grounds as well, alleging that she
received insufficient guidance and training and was a victim of dis-
crimination. The APWU sought reinstatement of Hoang with back
pay.
The Postal Service denied the APWU's grievance at all stages of
the grievance process. The Postal Service also maintained throughout
that the matter was non-grievable because it related to the separation
of a probationary employee. The APWU then appealed the matter to
arbitration. At the outset of the arbitration hearing, the Postal Service
challenged the arbitrator's authority to hear the matter. The parties
therefore agreed to bifurcate the case and first submitted only the
question of arbitrability to the arbitrator. The Postal Service argued
that the matter was not arbitrable because Article 12.1.A of the
National Agreement denies probationary employees access to the
grievance procedure for complaints relating to a separation. The
APWU countered that Article 12.1.A does not prevent an arbitrator
from deciding whether there was a procedurally effective separation
of a probationary employee in the first place.
Arbitrator Christopher Miles found that the grievance was arbitra-
ble (the Miles Award). He asserted that although Article 12 entitles
the Postal Service to terminate probationary employees before the end
of their probationary periods, the Postal Service must effectuate any
such termination in accordance with the ELM. The arbitrator further
stated that Article 19 of the National Agreement incorporated the pro-
visions of the ELM relating to wages, hours, or working conditions.
He concluded that a violation of ELM procedures was a violation of
the National Agreement and therefore subject to arbitration under
Article 15. The arbitrator then ordered that a hearing be scheduled on
the merits of the grievance.
The Postal Service filed suit in the United States District Court for
the Eastern District of Virginia. The Postal Service asked the court to
4
vacate the Miles Award. The APWU filed a counterclaim seeking to
enforce the Miles Award, as well as a claim for attorney's fees and
costs. After both parties moved for summary judgment, the district
court vacated the award. The district court ruled that Arbitrator Miles
exceeded his authority by issuing an award that was directly contrary
to the language of the parties' collective bargaining agreement. See
United States Postal Serv. v. American Postal Workers Union, 46 F.
Supp. 2d at 461-62. Specifically, the district court found that the arbi-
trator's decision altered the terms of Article 12.1.A and therefore vio-
lated Article 15.5.A(6)'s prohibition on any alteration of the National
Agreement by an arbitrator. See id. The APWU now appeals.
II.
It is important to note at the outset that judicial review of arbitra-
tion awards is extremely limited -- in fact, it is"among the narrowest
known to the law." Union Pac. R.R. v. Sheehan , 439 U.S. 89, 91
(1978) (internal quotation marks omitted). A court sits to "determine
only whether the 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). Indeed, "as 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). If courts were allowed
to delve into the merits of an arbitration award, then the federal policy
of settling labor disputes by arbitration would be seriously under-
mined. See United Steelworkers of Am. v. Enterprise Wheel & Car
Corp., 363 U.S. 593, 596 (1960). Such "judicial second-guessing . . .
would transform a binding process into a purely advisory one, and
ultimately impair the value of arbitration for labor and management
alike." Westvaco Corp. v. United Paperworkers Int'l Union, 171 F.3d
971, 974 (4th Cir. 1999) (internal quotation marks omitted).
An arbitrator does not have carte blanche, however, to "dispense
his own brand of industrial justice." Enterprise Wheel, 363 U.S. at
597. Rather, "an arbitrator is confined to interpretation and applica-
tion of the collective bargaining agreement." Id. "[H]is award is legiti-
mate only so long as it draws its essence from the collective
5
bargaining agreement. When the arbitrator's words manifest an infi-
delity to this obligation, courts have no choice but to refuse enforce-
ment of the award." Id. The requirement that the award "draw its
essence" from the parties' agreement means that"[t]he arbitrator may
not ignore the plain language of the contract." Misco, 484 U.S. at 38.
When the arbitrator ignores the unambiguous language chosen by the
parties, the arbitrator simply fails to do his job. See Mountaineer Gas,
76 F.3d at 610.1
Underlying judicial deference to arbitral awards is the principle
that the terms of the parties' agreement are controlling. This same
principle requires courts to vacate awards when an arbitrator exceeds
his authority under a collective bargaining agreement. When the par-
ties bargain for an arbitrator's construction of a contract, "the courts
have no business overruling him because their interpretation of the
contract is different from his." Enterprise Wheel, 363 U.S. at 599.
Likewise, when the parties have not agreed to arbitrate a matter, the
arbitrator lacks authority to resolve the matter,"[f]or arbitration is a
matter of contract and a party cannot be required to submit to arbitra-
tion any dispute which he has not agreed so to submit." United Steel-
workers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582
(1960). An arbitrator "is rather part of a system of self-government
created by and confined to the parties." Id. at 581 (internal quotation
marks omitted).
_________________________________________________________________
1 Arbitrability is presumptively a matter for judicial determination. See
AT&T Techs., Inc. v. Communications Workers of Am. , 475 U.S. 643,
649 (1986) ("Unless the parties clearly and unmistakably provide other-
wise, the question of whether the parties agreed to arbitrate is to be
decided by the court, not the arbitrator."). Here, however, the parties
agreed to submit the question of arbitrability to the arbitrator. See Rock-
Tenn Co. v. United Paperworkers Int'l Union, 184 F.3d 330, 334 (4th
Cir. 1999) ("[A]lthough the determination of whether a party has agreed
to arbitrate generally falls within the province of courts rather than of
arbitrators, the parties can agree to arbitrate arbitrability."). In this case,
the award is the declaration of arbitrability, and when the parties submit
the question of arbitrability to the arbitrator, the award is -- like any
merits award -- subject to the very deferential standard of review. The
question before us is therefore "the familiar one of whether the arbitra-
tion award draws its essence from the collective bargaining agreement."
Rock-Tenn, 184 F.3d at 336.
6
III.
The APWU asserts that it does not challenge the Postal Service's
right to separate Hoang during her probationary period. It instead pur-
ports to challenge whether Hoang was actually separated during her
probationary period. The APWU argues that Arbitrator Miles there-
fore acted within his authority in deciding that the grievance was arbi-
trable. It contends that his decision drew its essence from the National
Agreement because he was simply construing the language of Articles
12 and 19. The APWU further argues that the Miles Award does not
violate Article 12.1.A because nothing in that provision precludes an
arbitrator from determining whether a probationary employee was
actually separated in the first place.
We disagree. The arbitrator's decision that procedural attacks on
the separation of a probationary employee are arbitrable contravenes
the unambiguous language of Article 12.1.A. The terms of this provi-
sion are worth repeating: "The Employer shall have the right to sepa-
rate from its employ any probationary employee at any time during
the probationary period and these probationary employees shall not
be permitted access to the grievance procedure in relation thereto"
(emphasis added). This language is unqualified and admits of no
exception. The provision makes no distinction whatsoever between
procedural attacks on separations and substantive challenges. The
sweeping phrase "in relation thereto" brings any separation-related
grievance by a probationary employee within the ambit of the prohibi-
tion. In other words, so long as the matter involves probationary
employees and the question of separation, no grievance may be
brought. In fact, it is difficult to see how the parties could have been
any clearer in prohibiting every kind of separation-related grievance
by a probationary employee.
The arbitrator ruled that notwithstanding the clear language of Arti-
cle 12, Article 19 somehow renders this matter grievable. He claimed
that Article 19 incorporates Postal Service handbooks and manuals
into the National Agreement, and that ELM violations are grievable
by probationary employees because ELM violations are also viola-
tions of the National Agreement.
This argument, however, has no basis whatsoever in the National
Agreement. Even assuming, arguendo, that Article 19 incorporates
7
the ELM into the National Agreement, there is no language either in
the ELM or in Article 19 that even suggests ELM violations are griev-
able by probationary employees. Further, even if there were any hint
in the ELM that probationary employees could grieve ELM viola-
tions, this hint would run smack into Article 12. And Article 19
unequivocally states that Postal Service handbooks and manuals
"shall contain nothing that conflicts with this Agreement."
The dissent would also vitiate Article 12 by making alleged ELM
violations grievable by probationary employees. But the question of
whether a separation was effected in accordance with handbook pro-
cedures is plainly a separation-related matter. Under the plain terms
of Article 12, it is therefore non-grievable. Indeed, no clearer example
of a dispute "in relation [ ]to" the Postal Service's Article 12 "right
to separate" probationary employees during the probationary period
can be found. The contract makes non-grievable the entire class of
disputes having any "relation" to separation, and the contract cannot
be circumvented by attempting, as the dissent does, to subdivide that
class.
Our conclusion is reinforced by the Fifth Circuit's decision in
United States Postal Serv. v. American Postal Workers Union, 922
F.2d 256 (5th Cir. 1991) (USPS v. APWU). 2 In that case, the APWU
sought to grieve the separation of a probationary employee on the
ground that the Postal Service fired the employee because of a com-
pensable work-related injury. This separation allegedly violated the
Federal Employees' Compensation Act (FECA) and Postal Service
regulations implementing FECA. The regulations at issue were pro-
mulgated pursuant to Article 21 of the National Agreement and found
in the ELM. The APWU contended that despite the language of Arti-
cle 12, violations of these ELM provisions were grievable because
Article 19 incorporated the manual into the National Agreement.
The arbitrator in that case held that the grievance was arbitrable
and found the Postal Service to be in violation of the National Agree-
ment. The district court vacated the award and the Fifth Circuit
_________________________________________________________________
2 The National Agreement in effect at that time is substantively identi-
cal to the 1994 contract at issue here with respect to Article 12.1.A, Arti-
cle 15.5.A(6), and Article 19.
8
affirmed on the ground that the language of Article 12 is "clear and
unequivocal." Id. at 259. The court explained:
We agree with the Postal Service that even when, as in this
case, a probationary employee alleges that his termination
violates articles 19 and 21 of the National Agreement, arti-
cle 12 of that Agreement clearly denies probationary
employees any right to resort to grievance and arbitration
procedures. Non-probationary (permanent) employees alleg-
ing similar violations clearly have recourse to arbitration,
but the Agreement expressly denies probationary employees
that right. Such is the agreement for which the parties bar-
gained.
Id. The court further held that the arbitrator was not permitted to find
that Articles 19 and 21 grant probationary employees"the right to
arbitration on issues concerning these articles that article 12 expressly
denies them." Id.; see also American Postal Workers Union v. United
States Postal Serv., 755 F. Supp. 1076, 1077-78 (D.D.C. 1989)
(although Article 2 of National Agreement expressly allows grievance
and arbitration of disputes arising under that provision, probationary
employees have no access to grievance-arbitration procedure because
Article 12 denies them that right).
The APWU argues here for the result rejected by the Fifth Circuit.
The APWU attempts to circumvent the Article 12 bar by alleging an
ELM violation and then claiming that Article 19 enables a probation-
ary employee to grieve such a violation. We join the Fifth Circuit in
holding that the National Agreement is not susceptible to such a strat-
egy.
The APWU attempts to distinguish the Fifth Circuit decision on the
ground that it involved only a substantive challenge to a separation
and not a procedural objection. This argument fails, however, because
neither the National Agreement nor the Fifth Circuit made any proce-
dural/substantive distinction. The Fifth Circuit instead tracked the
unequivocal language of Article 12 in holding that"a probationary
employee is not permitted access to the grievance procedure in rela-
tion to a termination within the probationary period." USPS v. APWU,
922 F.2d at 261. To hold otherwise would both negate the language
9
of Article 12 and undermine its purpose of allowing the Postal Ser-
vice to separate probationary employees without having to defend the
separation through the grievance procedure.
Indeed, for purposes of the National Agreement, the APWU's
attempt to distinguish procedural from substantive challenges is noth-
ing more than a false dichotomy. Both substantive and procedural
challenges would require the Postal Service to mount the same exten-
sive defense of its actions toward probationary employees as it must
when it acts to terminate permanent employees. To allow any kind of
separation-related grievance by a probationary employee would thus
move in the direction of forcing the Postal Service to treat probation-
ary employees the same as permanent employees. But it is the very
purpose of Article 12.1.A to establish a clear distinction between pro-
bationary and permanent employees and afford them different protec-
tions. Any blurring of this distinction thus thwarts the purpose of the
National Agreement.
Further, it is often difficult to distinguish between a "substantive"
attack on a separation and one that is merely "procedural." For exam-
ple, the APWU charges in this case that the Postal Service failed to
supply adequate conclusions as to the deficiencies of Hoang's perfor-
mance when it stated, "The reason for this separation is that you were
rated unsatisfactory during your last probationary evaluation." An
attack on the "adequacy" of this statement can come perilously close
to a substantive challenge to the Postal Service's evaluation and sepa-
ration of Hoang. Moreover, at steps two and three of the grievance
procedure, the APWU challenged both the substantive basis and the
procedural propriety of Hoang's separation. To allow the grievance at
issue here thus risks opening the door to substantive grievances that
are ushered in behind a putatively procedural attack.
The APWU also raises the specter that disallowing this grievance
will permit the Postal Service to declare with impunity that an
employee was separated even after the expiration of the probationary
period. We disagree. Once the probationary period has expired with-
out any action to separate the employee, Article 12 no longer denies
the employee access to the grievance procedure. In this case, how-
ever, it is undisputed that Hoang's Postal Service supervisor acted to
separate her within the 90-day probationary period. Whether the
10
Postal Service followed all ELM procedures in taking this action is
irrelevant to the grievability of this matter. All that counts is that the
matter involves (1) a probationary employee and (2) a separation. In
fact, the APWU itself admitted in its arbitration brief that these ele-
ments are present: "The case before the Arbitrator involves the
termination of a probationary employee at the Arlington, Va. Post
Office" (emphasis added).
The APWU essentially seeks to grieve through the back door the
separation of a probationary employee. The parties, however, closed
this door when they consented to the clear and unequivocal language
of Article 12.1.A in negotiating the National Agreement. Attempts to
pry this door open are absolutely barred by Article 12.1.A itself, Arti-
cle 15.5.A(6)'s prohibition of arbitral modification of the agreement,
and Article 19's declaration of the supremacy of the National Agree-
ment over any handbook or manual.
IV.
Parties to a collective bargaining agreement get what they bargain
for -- no less and no more. If the APWU wished probationary
employees to have access to the grievance procedure to challenge a
separation, it could have bargained for such a right. Indeed, the
APWU remains free to bargain for this right in the future. But the
APWU cannot gain through arbitration what it could not acquire
through negotiation. If the parties unambiguously agree that a certain
class of disputes is not subject to the grievance procedure, then no
arbitrator or court may reach the opposite conclusion. To permit oth-
erwise would undermine the entire purpose of collective bargaining
agreements -- namely to allow the parties to control the terms of their
relationship through "a system of industrial self-government."
Warrior & Gulf Navigation Co., 363 U.S. at 580.
Of course, probationary employees are not bereft of all opportuni-
ties to press certain kinds of separation-related complaints. They may
proceed under any appropriate federal civil rights, labor, or civil ser-
vice law. And if a probationary employee doubts whether an appar-
ently defective separation notice was actually meant to separate him,
he can go to his supervisor or a higher authority in the Postal Service
to resolve the matter. But the one remedy he surely does not have is
11
the remedy plainly denied by the National Agreement-- access to the
grievance procedure.
V.
Article 12.1.A of the National Agreement states:"The Employer
shall have the right to separate from its employ any probationary
employee at any time during the probationary period and these proba-
tionary employees shall not be permitted access to the grievance pro-
cedure in relation thereto." The parties thus bargained that anything
having to do with the termination of a probationary employee is not
grievable. Because the arbitrator negated this clear language in allow-
ing a probationary employee to have access to the grievance proce-
dure, he was not even "arguably construing or applying the contract."
Misco, 484 U.S. at 38. His award therefore did not draw its essence
from the agreement and must be vacated. See id. ; Enterprise Wheel,
363 U.S. at 597. The judgment of the district court is accordingly
AFFIRMED.
KING, Circuit Judge, dissenting:
Contrary to the majority's assertions, the APWU is not attempting
to circumvent Article 12 by contesting the separation of a probation-
ary employee; rather, the APWU has simply challenged whether the
"separation" of postal employee Huong Hoang actually occurred.
Before Article 12's bar to the grievance process applies, there must
be an initial determination that Hoang was separated in accordance
with the National Agreement. If the contractual requirements for sep-
aration were not satisfied within Hoang's probationary period, then
the Article 12 bar does not apply and the grievance is arbitrable.
Accordingly, I agree with Arbitrator Miles's ruling that the grievance
at issue here is subject to arbitration. Because I find error in the dis-
trict court's decision to vacate the Miles Award, I am compelled to
dissent.
I.
As the majority points out, judicial review of arbitration awards is
extremely limited. Ante at 5. In accordance with national labor policy,
12
arbitration is the favored means of resolving labor disputes. There-
fore, the standard of judicial review for arbitration awards is highly
deferential: federal courts should sustain an arbitration award if the
award "draws its essence" from the collective bargaining agreement.
United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363
U.S. 593, 597 (1960).
In fact, as the majority acknowledges, "as 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 seri-
ous error does not suffice to overturn his decision." Ante at 5, quoting
United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38
(1987). Moreover, judicial deference to arbitration applies "even
when the arbitrator's interpretation resolves a question relating to the
scope of the arbitrator's own authority." Westvaco Corp. v. United
Paperworkers Intern., 171 F.3d 971, 975 (4th Cir. 1999) (citing W.R.
Grace & Co. v. Rubber Workers, 461 U.S. 757, 765 (1983); Norfolk
& Western Ry. v. Transp. Communications Int'l Union , 17 F.3d 696,
699 (4th Cir. 1994)). This deferential standard of review is premised
on the notion that "[i]t is the arbitrator's construction which was bar-
gained for; and so far as the arbitrator's decision concerns construc-
tion of the contract, the courts have no business overruling him
because their interpretation of the contract is different from his."
Enterprise Wheel, 363 U.S. at 599.
II.
In evaluating the propriety of the Miles Award, it is critical that we
accurately identify the arguments before us. The APWU has not chal-
lenged the Postal Service's general right to separate a probationary
employee during her probationary period. Instead, the APWU argues
simply that any dispute concerning whether the separation of postal
employee Huong Hoang was properly effectuated during her proba-
tionary period is subject to arbitration.1
_________________________________________________________________
1 The arbitrator did not reach the issue of whether the Postal Service's
separation of Hoang was in fact deficient. The parties agreed to bifurcate
the case, and this appeal involves only the arbitrator's determination
regarding arbitrability.
13
A.
Article 12 of the National Agreement governs the termination of
probationary employees. Article 12.1.A provides:
The probationary period for a new employee shall be ninety
(90) calendar days. The Employer shall have the right to
separate from its employ any probationary employee at any
time during the probationary period and these probationary
employees shall not be permitted access to the grievance
procedure in relation thereto.
Relying on this broad language, the majority concludes that any
separation-related grievance by a probationary employee is contractu-
ally prohibited. What the majority fails to acknowledge, however, is
the legal significance attached to the term "separate" within the con-
text of Article 12.1.A.
Article 19 of the National Agreement incorporates by reference
certain provisions of the Employee Labor Manual ("ELM") setting
forth the procedural requirements for separating probationary
employees.2 First, section 365.325 of the ELM addresses who may
initiate the separation of a probationary employee:"Supervisors may
recommend separation-disqualification, but such recommendations
must be referred for decision to the official having authority to take
the action."
Second, section 365.326 governs the process of actually separating
a probationary employee:
If an appointing official decides to terminate an employee
who is serving a probationary period . . . the employee's ser-
_________________________________________________________________
2 Article 19 provides:
Those parts of all handbooks, manuals and published regulations
of the Postal Service, that directly relate to wages, hours or
working conditions, as they apply to employees covered by this
Agreement, shall contain nothing that conflicts with this Agree-
ment, and shall be in continued effect . . . .
14
vices are terminated by notifying the employee in writing
why she or he is being terminated and the effective date of
the action. The information in the notice regarding the ter-
mination must, at a minimum, consist of the appointing offi-
cial's conclusions as to the inadequacies of performance or
conduct.
Third, sections 365.323 and 365.327 of the ELM address the pro-
bationary period. Section 365.327 indicates that"notice of separation
must be given to the employee before the end of the probationary or
trial period." Likewise, section 365.323 provides:
Separation-disqualification must be effected during the pro-
bationary period except as provided in 365.321. . . . Any
separation based on disqualification not effected during the
probationary period, as provided in 365.321, even though
the action is based on unsatisfactory performance during the
probationary period, must be effected as a removal.
As the latter provision makes clear, a separation not effected in
accordance with these procedures during the probationary period must
be effected as a "removal" of a non-probationary employee, in which
case the Postal Service must demonstrate "just cause" and the
employee must have access to the grievance process. 3 Therefore, if
these requirements for separation, incorporated into the National
Agreement by Article 19, were not satisfied within Hoang's proba-
_________________________________________________________________
3 Article 16.1 governs the discipline of non-probationary employees,
and provides:
In the administration of this Article, a basic principle shall be
that discipline should be corrective in nature, rather than puni-
tive. No employee may be disciplined or discharged except for
just cause such as, but not limited to, insubordination, pilferage,
intoxication (drugs or alcohol), incompetence, failure to perform
work as requested, violation of the terms of this Agreement, or
failure to observe safety rules and regulations. Any such disci-
pline or discharge shall be subject to the grievance-arbitration
procedure provided for in this Agreement, which could result in
reinstatement and restitution, including back pay.
(emphasis added).
15
tionary period, the Article 12 bar does not apply and the underlying
dispute is arbitrable.
B.
Despite the straightforwardness of this interpretation, the majority
concludes that there is no basis in the National Agreement for assert-
ing that Hoang has the right to arbitrate. In support of this conclusion,
the majority relies on three primary points.
1.
First, the majority concludes that the language of Article 12.1.A is
"unqualified" and "makes no distinction whatsoever between proce-
dural attacks on separations and substantive challenges." Ante at 7.
Admittedly, the language of Article 12 makes no such distinction; it
simply prohibits all challenges to the separation of a probationary
employee. However, for that prohibition to apply, there must in fact
have been a "separation" within the meaning of the National Agree-
ment.
2.
Second, the majority concludes that "[w]hether the Postal Service
followed all ELM procedures in taking this action[to separate Hoang]
is irrelevant to the grievability of this matter." Ante at 10-11. Instead,
the relevant fact is the "undisputed" finding that "Hoang's Postal Ser-
vice supervisor acted to separate her within the 90-day probationary
period." Id. (emphasis added). I disagree. Whether the Postal Service
"acted to" or attempted to separate Hoang is irrelevant to our analysis;
for Article 12's prohibition to apply, the Postal Service had to actually
effect the separation within the 90-day period. The Postal Service
itself drafted the regulations describing in detail the requirements to
effectuate the separation of a probationary employee; the Postal Ser-
vice and the APWU then agreed to incorporate these requirements
into the National Agreement. Thus, if those conditions are not satis-
fied within the probationary period, there is no separation within the
meaning of the National Agreement, and the Article 12 bar does not
apply to prohibit access to the grievance procedure. 4 To illustrate this
_________________________________________________________________
4 Contrary to the majority's contention, the conditions required to effect
a separation do not conflict with Article 12 and therefore cannot be said
16
straightforward interpretation of the National Agreement, consider the
requirement embodied in sections 365.323 and 365.327 of the ELM
mandating that notice of separation be given during the course of a
probationary employee's 90-day probationary period. If such notice
of separation is not given until after an employee has completed the
probationary period, no one could reasonably assert that a grievance
brought to challenge such a defective separation was not grievable.
Yet, the other separation requirements are no less critical. If a chal-
lenge to the timing of a separation notice is arbitrable, then challenges
to other defects in the Postal Service's attempts to separate probation-
ary employees are also arbitrable. In either case, the Postal Service's
inadequate compliance with the separation requirements would result
in the failure to provide proper notice within the probationary period,
and thus result in non-probationary status for the employee in question.5
3.
Finally, the majority relies on the Fifth Circuit's decision in United
States Postal Service v. American Postal Workers Union, 922 F.2d
256 (5th Cir. 1991), to support its conclusion that Article 12 trumps
any rights Hoang may have under other provisions of the National
Agreement. However, the Fifth Circuit's decision is inapplicable here.
_________________________________________________________________
to run afoul of Article 19's mandate that Postal Service handbooks and
manuals "contain nothing that conflicts" with the National Agreement.
Rather, Article 19's incorporation of the ELM into the National Agree-
ment requires that the ELM's provisions have the same force and effect
as any other language in the National Agreement.
5 In support of this argument, the APWU points to numerous arbitral
decisions consistent with the Miles Award. See e.g., Case No. N1C-1E-
D 27209 (1985) (Zumas, Arb.) (concluding that "[i]nasmuch as [the
employer] failed to effectively separate Grievant within the 90-day pro-
bationary period, he is entitled to have access to the grievance proce-
dure"); Case No. E4C-2M-D 36879 (1987) (Cushman, Arb.) (holding
oral termination ineffective to separate probationary employee because
"a written notification of separation is the sole and exclusive method of
separation of a probationary employee for the reasons set forth under
365.326."); Case No. D90C-1D-D95030737 (1995) (Zobrak, Arb.) (hold-
ing that if grievant was not properly separated prior to end of probation-
ary period, he does have access to grievance procedure).
17
In that case, there was no question concerning whether the Postal Ser-
vice had properly separated the probationary employee in accordance
with the ELM, as incorporated into the National Agreement. Instead,
the only issue was whether the probationary employee's substantive
challenge that he had been separated for a compensable work-related
injury (in violation of the Federal Employees' Compensation Act and
Articles 19 and 21 of the National Agreement) was subject to the
grievance process.
The Fifth Circuit rejected the employee's challenge and affirmed
the district court's decision to vacate the arbitration award, holding
that "a probationary employee is not permitted access to the grievance
procedure in relation to a termination within the probationary period."
922 F.2d at 261. The Fifth Circuit's holding, however, was premised
on the court's finding that the separation was properly effectuated
during the employee's probationary period:
The union insists that a probationary employee dismissed
while on compensable leave is not a probationary employee.
We disagree. Leave for injury suspends the running of the
clock on the probationary period, but it does not alter the
employee's status as a probationary employee.
Id. at 260. Thus, this holding merely stands for the proposition that
if the separation of a probationary employee is effectuated during the
probationary period, Article 12 denies access to the grievance proce-
dure to challenge the basis of the separation, even if that basis alleg-
edly contravenes another provision of the National Agreement. In
other words, the APWU cannot challenge the Postal Service's reasons
for separating a probationary employee. However, this holding in no
way suggests that the APWU cannot access the grievance procedure
to challenge whether a separation actually occurred. If Hoang had
completed her probationary period without being properly separated,
the Fifth Circuit's decision (and Article 12's bar) simply would not
apply.
C.
It is worth reemphasizing that the issue before us is not whether the
separation of a probationary employee is arbitrable; the issue is
18
whether the arbitrator's determination that he could decide whether
Hoang continued to be employed beyond her probationary period --
due to the Postal Service's failure to effectively separate her -- draws
its essence from the National Agreement. To resolve this question, we
are charged with determining whether the 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) (citation omitted).
Here, the parties agreed to submit the question of arbitrability to
Arbitrator Miles. At the arbitration, the APWU maintained that the
contractual requirements for separation must be satisfied for Article
12's prohibition to apply and bar Hoang from the grievance process.
In support of this argument, the APWU alleged that Hoang's separa-
tion was not effected properly during her probationary period because
the Postal Service failed to satisfy the procedural requirements set
forth in the ELM and incorporated into the National Agreement by
Article 19. First, the APWU asserted that the recommendation to sep-
arate Hoang was never referred for a final decision to the official hav-
ing authority to take such action, Postmaster Leonard Napper.
Second, the APWU contended that the separation notice given to
Hoang failed to provide any conclusions as to the inadequacies of her
performance or conduct as required by section 365.326 of the ELM.
Based on the Postal Service's alleged failure to comply with these
procedural requirements, the APWU argued that Hoang's separation
was not effected during her probationary period, and she was there-
fore entitled to the benefit of the grievance process available to
career/non-probationary employees.
Presented only with the question of arbitrability, the arbitrator
agreed with the APWU, concluding that he had jurisdiction under the
National Agreement to hear challenges to whether the Postal Service
had effected the separation of the probationary employee. Construing
the relationship between Article 12, Article 19, and the ELM separa-
tion procedures, Arbitrator Miles held the grievance to be arbitrable,
writing:
There is no question that Article 12, Section 1 of the Agree-
ment entitles the Postal Service to terminate probationary
employees prior to the expiration of their probationary
19
period. However, Article 12 does not stand alone, rather it
must be considered in conjunction with all other provisions
of the Agreement. Thus, when taking action to separate a
probationary employee, the Postal Service must do so in
accordance with the provisions of the Agreement and the
applicable provisions which are contained in Section 365.32
of the ELM.
J.A. 32.
Regardless of whether we disagree with this conclusion, Arbitrator
Miles's ruling was a reasonable construction of the pertinent provi-
sions of the National Agreement. The Miles Award was premised on
the interpretation of contract terms, particularly the definition of the
term "separate" and its relationship to the balance of the National
Agreement. I am therefore unable to reconcile the majority's decision
with our limited standard of review. See Misco, Inc., 484 U.S. at 38
(holding that insofar "as the arbitrator is even arguably construing or
applying the contract . . ., that a court is convinced he committed seri-
ous error does not suffice to overturn his decision."). While the ruling
of Arbitrator Miles may not be the only possible interpretation of the
National Agreement, it is certainly a plausible one, and therefore must
be said to have drawn its essence from the parties' agreement. See
Rock-Tenn Co. v. United Paperworkers Int'l Union, 184 F.3d 330,
337 (4th Cir. 1999).
III.
The majority is obviously correct in its assertion that "[p]arties to
a collective bargaining agreement get what they bargain for -- no less
and no more." Ante at 11. However, the majority's holding today
would deny the APWU the benefit of its bargain, by ignoring the con-
tractual obligations of the Postal Service in "separating" probationary
employees. At the foundation of the majority opinion is the finding
that Hoang is a "probationary employee" attempting to grieve her
"separation." In my view, this begs the question, for the issue pre-
sented to Arbitrator Miles was whether a "separation," as that term is
defined by the National Agreement, actually occurred; and if not,
whether an employee who was not properly separated during the
course of her probationary period is still afforded"probationary" sta-
20
tus. Construing the relationship between Article 12, Article 19, and
the ELM, Arbitrator Miles concluded that before Article 12's bar to
the grievance process can apply, there must be a preliminary determi-
nation as to whether Hoang was in fact separated in accordance with
the National Agreement.
The Miles Award's interpretation of the National Agreement was
just that: the construction and application of the contractual language.
Even if we disagree with this reading, we should not vacate the Miles
Award "on the ground that an arbitrator misread the contract," since
the Miles Award is a plausible application of the contract. Misco, 484
U.S. at 38; see also Remmey v. PaineWebber Inc. , 32 F.3d 143, 146
(4th Cir. 1994) (noting that courts are not free to reject an arbitral
award simply because "they would have reached a different conclu-
sion if presented with the same facts").
Consistent with the exceedingly deferential standard of review
mandated by the Supreme Court, I would hold that the arbitration
award in this case drew its essence from the National Agreement, and
I would reverse the district court's decision to the contrary. I respect-
fully dissent.
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