United States Postal Service v. American Postal Workers Union, Afl-Cio

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 probationary 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 separation 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 district 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 527. In accordance with national labor policy, arbitration is the favored means of resolving labor disputes. Therefore, 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, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (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 serious error does not suffice to overturn his decision.” Ante at 527, quoting United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (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, 103 S.Ct. 2177, 76 L.Ed.2d 298 (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 bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business over*532ruling him because their interpretation of the contract is different from his.” Enterprise Wheel, 363 U.S. at 599, 80 S.Ct. 1358.

II.

In evaluating the propriety of the Miles Award, it is critical that we accurately identify the arguments before us. The APWU has not challenged 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 probationary period is subject to arbitration.1

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 contractually prohibited. What the majority fails to acknowledge, however, is the legal significance attached to the term “separate” within the context 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 services 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 termination must, at a minimum, consist of the appointing official’s conclusions as to the inadequacies of performance or conduct.

Third, sections 365.323 and 365.327 of the ELM address the probationary 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 probationary 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 *533these 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 causé” 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 probationary 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 asserting 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 procedural attacks on separations and substantive challenges.” Ante at 528. 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 Agreement.

2.

Second, the majority concludes that “[wjhether the Postal Service followed all ELM procedures in taking this action[to separate Hoang] is irrelevant to the griev-ability of this matter.” Ante at 529-30. Instead, the relevant fact is the “undisputed” finding that “Hoang’s Postal Service 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 Service and the APWU then agreed to incorporate these requirements into the National Agreement. Thus, if those conditions are not satisfied 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 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 pe*534riod, 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 challenge to the timing of a separation notice is arbitrable, then challenges to other defects in the Postal Service’s attempts to separate probationary 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. In that case, there was no question concerning whether the Postal Service 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 compensa-ble 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 procedure to challenge the basis of the separation, even if that basis allegedly 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 *535issue is 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 separation 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 separate Hoang was never referred for a final decision to the official having 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 366.326 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 therefore entitled to the benefit of the grievance process available to eareer/non-probationary employees.

Presented only with the question of arbi-trability, 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 separation procedures, Arbitrator Miles held the grievance to be arbitra-ble, writing:

There is no question that Article 12, Section 1 of the Agreement entitles the Postal Service to terminate probationary employees prior to the expiration of their probationary 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 provisions 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, 108 S.Ct. 364 (holding that insofar “as the arbitrator is even arguably construing or applying the contract ..., that a court is convinced he committed serious 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 “[pjarties to a collective bargaining agreement get what they bargain *536for — -no less and no more.” Ante at 530. However, the majority’s holding today would deny the APWU the benefit of its bargain, by ignoring the contractual 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 presented 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” status. 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 determination 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, 108 S.Ct. 364; see also Remmey v. Paine-Webber 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 conclusion 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 respectfully dissent.

. 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.

. 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 in continued effect....

. 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 punitive. 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 discipline 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).

. Contrary to the majority’s contention, the conditions required to effect a separation do not conflict with Article 12 and therefore cannot be said

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 Agreement requires that the ELM’s provisions have the same force and effect as any other language in the National Agreement.

. 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 probationary period, he is entitled to have access to the grievance procedure”); 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.) (holding that if grievant was not properly separated prior to end of probationary period, he does have access to grievance procedure).