Floors v. UBC, Southern Council of Industrial Workers, Local Union No. 2713

EMILIO M. GARZA, Circuit Judge:

Plaintiff Bruce Hardwood Floors (“Bruce”) appeals the district court’s grant of summary judgment enforcing an arbitration award in favor of Defendant UBC, Southern Council of Industrial Workers, Local Union No. 2713 (“the Union”) and the court’s award of attorneys’ fees to the Union. We reverse the district court’s decisions on both issues.

I

Sheila Dixon, a Dryer Tailer/Grader on a production line in Bruce’s Veneer Department, asked her supervisor for leave from work to take her truck to her daughter who needed it to go to the doctor. Dixon’s supervisor approved her réquest. However, while Dixon was absent from work, other employees informed her supervisor that Dixon actually needed the time off to pay an overdue electric bill. When questioned by her supervisor the next day about her reasons for needing the absence from work, Dixon admitted that she had fabricated the story about her daughter’s doctor appointment. After conferring with his own supervisor, the plant’s personnel manager, and the plant manager, Dixon’s supervisor discharged Dixon for obtaining time off from work under false pretenses.

Dixon thereafter filed a grievance contesting her termination. Her grievance was processed in accordance with the four-step pro*451cedure in the parties’ collective bargaining agreement (“CBA”). When Dixon’s termination could not be resolved through the grievance procedure, the Union submitted the dispute to-arbitration.

The arbitrator held that Bruce should have applied progressive discipline provisions of the CBA, rather than discharge provisions.1 He concluded that Bruce’s contention that Dixon’s conduct warranted discharge under the CBA was “unreasonable,” but found that Dixon had “fabricated her story.” 2 The arbitrator reinstated Dixon with full seniority and back pay and imposed a ten-day suspension from work.

Bruce then filed a complaint in district court seeking vacatur of the arbitration award. The Union subsequently filed a complaint seeking enforcement of the award. The district court consolidated the actions and the parties filed cross-motions for summary judgment. The district court granted the Union’s motion and denied Bruce’s motion, thereby enforcing the arbitration award.3 The district court also awarded the Union attorneys’ fees. Bruce appeals.

II

Bruce argues that the arbitrator improperly ignored the terms of the parties’ CBA and that the district court should therefore have vacated the arbitration award. Where a party appeals a grant of summary judgment in a suit to vacate an arbitration award, we review the district court’s ruling de novo. Houston Lighting & Power Co. v. International Bhd. of Elec. Workers, Local Union No. 66, 71 F.3d 179, 181 (5th Cir. 1995), cert. denied, — U.S. -, 117 S.Ct. 52, 136 L.Ed.2d 16 (1996). As long as the arbitrator’s decision draws its essence from the collective bargaining agreement and the arbitrator is not fashioning his own brand of industrial justice, we will decline to vacate the award. Id. at 182. In applying the “essence” test, we have stated that an arbitration award “must have a basis that is at least rationally inferable, if not obviously drawn, from the letter or purpose of the *452collective bargaining agreement____ [T]he award must, in some logical way, be derived from the wording or purpose of the contract.” Executone Info. Sys., Inc. v. Davis, 26 F.3d 1314, 1325 (5th Cir.1994) (citation omitted).

Although we accord an arbitrator’s decision considerable deference regarding the merits of the controversy, the CBA circumscribes his jurisdiction. Delta Queen Steamboat Co. v. District 2 Marine Eng’rs Beneficial Ass’n, 889 F.2d 599, 602 (5th Cir. 1989), cert. denied, 498 U.S. 853, 111 S.Ct. 148, 112 L.Ed.2d 114 (1990). Where the arbitrator exceeds the express limitations of his contractual mandate, judicial deference ends and vacatur or modification of the award is an appropriate remedy. Id.

After reviewing both the CBA and the arbitration award, we conclude that the award is not “derived from the wording or purpose of the contract.” Executone, 26 F.3d at 1325. Article 9, § 3 of the CBA binds an arbitrator to the terms of the contract. See id. (“No arbitrator shall have authority to add to, amend or depart from the terms of this written Agreement____”). The arbitrator found, based on Dixon’s own admission, that Dixon lied to obtain time off from work. Lying is specifically covered by Article 24, § 2(a) of the CBA, which states that an employee will be discharged immediately for engaging in immoral conduct.4 In refusing to apply this provision, the arbitrator exceeded the express limitations of his contractual mandate.5

The arbitration award is further undermined by the penalty imposed. Nowhere does the CBA provide for a penalty of a ten-day suspension from work. Although the Supreme Court has stated that “[njormally, an arbitrator is authorized to disagree with the sanction imposed for employee misconduct,” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 41, 108 S.Ct. 364, 373, 98 L.Ed.2d 286 (1987), the Court clarified that “[t]he parties, of course, may limit the discretion of the arbitrator in this respect____” Id. By so doing, it is possible to vest in the employer complete discretion over terminations which the arbitrator is not free to usurp. Delta Queen, 889 F.2d at 602.

As noted, the CBA in this case prohibits an arbitrator from adding to, amending or departing from the terms of the agreement. Hence, once the arbitrator found that Dixon fabricated her story, he was bound to impose the penalty provided by the CBA for that conduct. See id. at 604 (“If a collective bargaining agreement defines ‘proper cause’ to include a non-exhaustive list of offenses, an arbitrator cannot ignore the natural consequence of his finding that a listed offense was committed.”). In fashioning a remedy not contained in the CBA, despite finding that Dixon committed an offense covered by the CBA, the arbitrator exceeded his contractual authority by adding to, amending and/or departing from the terms of the agreement. As a result, we vacate the arbitration award. See Houston Lighting & Power Co., 71 F.3d at 179 (“[T]he rule in this circuit, and the emerging trend among other courts of appeals, is that arbitral action contrary to express contractual provisions will not be respected.”). , Thus, we reverse the district court’s grant of summary judgment in favor of the Union and reinstate Dixon’s discharge. See Container Prods., Inc. v. United Steelworkers of Am., and its Local 5651, 873 F.2d 818, 820 (5th Cir.1989) (affirming district court order vacating remedy *453imposed by arbitrator and reinstating discharge).

III

Bruce also contends that the district court abused its discretion in awarding the Union attorneys’ fees. We review an award of attorneys’ fees for an abuse of discretion. International Union of Elec., Radio and Mach. Workers v. Ingram Mfg. Co., 715 F.2d 886, 893 (5th Cir.1983), cert. denied, 466 U.S. 928, 104 S.Ct. 1711, 80 L.Ed.2d 184 (1984). An award of attorneys’ fees is permitted when a party has refused to abide by an arbitration decision “without justification.” International Ass’n of Machinists & Aerospace Workers, Dist. 776 v. Texas Steel Co. (“Texas Steel II”), 639 F.2d 279, 283 (5th Cir. Unit A1981).

Because we have concluded that the arbitrator exceeded his contractual authority, we do not find that Bruce’s refusal to abide by the arbitration decision was without justification. See id. at 283-84 (explaining that in cases where arbitration award exceeds power conferred upon arbitrator, challenge is proper and not without justification). Hence, we reverse the district court’s award of attorneys’ fees to the Union.

IV

For the foregoing reasons, we REVERSE the district court’s grant' of summary judgment in favor of the Union, VACATE the arbitration award and reinstate Dixon’s discharge. In addition, we REVERSE the district court’s award of attorneys’" fees to the Union.

.The pertinent discharge and progressive discipline provisions of the CBA are as follows:

Article 24, Section 2. The Company will take action against an employee based upon conduct which warrants immediate discharge, or for other conduct, while less serious, which initially warrants less severe discipline.
(a) An employee will be discharged immediately without prior warning for the following or similar reasons:
(16) Stealing, immoral conduct, or any act on the Company premises intended to destroy property or inflict bodily injury.
(b) An employee will be subject to progressive discipline for the following or similar reasons:
(1) Absenteeism.
(2) Tardiness.
(3) Inefficiency or poor work performance.
(4) Abuse of rest periods and lunch periods.
(5) Neglecting duty or failing to maintain work standards.
Section 3. In the case of offenses where the application of progressive discipline would be appropriate as set forth in (b) above, the Company shall endeavor to adhere to the following order:
(a) Verbal warning with written record of warning for the first incident.
(b) Written warning for the second incident.
(c) Disciplinary suspension of three (3) unpaid days for the third incident
(d) Discharge for the fourth incident.
In agreeing to the foregoing, however, the Company does not intend to waive the exercise of its right to discipline or discharge without following such order in any case where it determines that the seriousness of the particular offense involved warrants discipline of a different order.

. Specifically, the arbitrator concluded:

The Grievant's conduct was not such that demands the supreme industrial penalty of immediate discharge. The Company wrongfully attempted to apply the referenced provisions of the Collective Bargaining Agreement to the Grievant’s conduct. The parties negotiated a progressive discipline policy which the Compa- ■. .ny failed to follow.
Considering the evidence adduced at the arbitration hearing, and considering the presentations made by the parties in their post hearing briefs, the Arbitrator has adequate reason to substitute his judgement [sic] for that of Company’s management.

. In granting the Union's motion for summary judgment to enforce the arbitration award, the district court found that "the arbitrator confined his decision and remedy to the interpretation and application of the collective bargaining agreement” and that the arbitrator “providefd] an award which was within the essence of the collective bargaining agreement.”

. The dissent criticizes us for interpreting the term "immoral conduct." We do not. By definition, lying is immoral conduct — that is, it is inconsistent with principles of morality. See Black’s Law Dictionary 751 (6th Ed.1990).

. The arbitrator concluded that Bruce should have .applied the CBA’s progressive discipline policy to Dixon’s conduct, but did not specify which of the five enumerated progressive discipline offenses incorporated Dixon's lie. Likewise, though the Union urges that Dixon’s conduct deserves progressive discipline because it is similar to the listed progressive discipline offenses, it also fails to specify which of the offenses implicates lying. For our part, we discern no similarity between lying and absenteeism, tardiness, inefficiency or poor work performance, abuse of rest periods and lunch periods, or neglect of duty or failure to maintain work standards. The plain language of the progressive discipline policy simply does not support a finding that the policy applies to lying, particularly in light of the clear applicability of the discharge provisions to Dixon’s conduct.