BLAKE, Judge
The plaintiff, International Longshoremen's Association (the "Union"), has appealed an arbitrator's award upholding the termination of one of its members from his position as a ship foreman. The Union asks this court to vacate the arbitrator's decision and remand the case for consideration of additional evidence. Currently pending before the court are the parties' cross-motions for summary judgment. Those motions have been briefed fully, and no hearing is necessary. See Local Rule 105.6. For the reasons that follow, the court will grant the defendants' motion for summary judgment and deny the plaintiff's motion.
BACKGROUND
Garris McFadden was employed by the I.T.O. Corporation of Baltimore, Inc. ("I.T.O.") for nearly 45 years and had achieved the position of ship foreman prior to his dismissal. (Mem. Supp. Pl.'s Mot. for Summ. J., Ex. 1, Arbitrator's Opinion and Award ("Abitrator's Opinion") at 1.) Mr. McFadden was a member of the Union which represents cargo handlers in and around the Port of Baltimore. (Mem. Supp. Pl.'s Mot. for Summ. J. at 4; Compl. ¶ 3.) The Union is a party to two collective bargaining agreements with defendant Steamship Trade Association of Baltimore, Inc. ("STA") known as the Provisions Applicable to all Locals ("PAAL") and the Cargo Agreement. (Mem. Supp. Pl.'s Mot. for Summ. J., Ex. 2.) The STA is a bargaining unit composed of several dozen port-side employers; I.T.O. is a member of the STA and a party to the two agreements. (Mem. Supp. Mot. for Summ. J. at 4 n. 4; Compl. ¶ 4.)
The company is now known as PO Ports. (Mem. Supp. Mot. for Summ. J. at 4 n. 4; Compl. ¶ 5.)
The Union does not challenge the facts found by the arbitrator in his opinion. (Mem. Supp. Pl.'s Mot. for Summ. J. at 3.)
Between December 29, 1998 and August 11, 1999, Mr. McFadden was involved in five separate work-related incidents for which he received written warnings. (Id. at 2-3.) On September 13, 1999, he was suspended for three days as a result of the second written warning, seven days as a result of the third written warning, and 30 days as a result of the fourth warning. (Id. at 3-4.) He also was informed that the fifth incident for which he received a written warning might result in additional discipline in the future, including discharge. (Id. at 4.)
Apparently, he received one letter which covered both the fourth and fifth incidents. (Arbitrator's Opinion at 3.)
The suspensions and warning were conveyed by two letters received on September 13. The suspensions were imposed at the same time as a result of the Union's request that they be tabled until a grievance regarding the initial warning letter was resolved. (Arbitrator's Opinion at 19.)
Mr. McFadden's suspensions ran from September 16-18, 19-25, and September 26-October 25. (Id. at 3.) By letter dated October 25, 1999, I.T.O. terminated Mr. McFadden for having "been suspended for a total of 40 days over the past two months." (Mem. Supp. Pl.'s Mot. for Summ. J., Ex. 4.) Mr. McFadden grieved his termination, and the matter went to arbitration on September 7, 2000. On November 27, 2000, Arbitrator Jerome Ross issued an opinion which, in relevant part, set aside two of the five warning letters.
(Arbitrator's Opinion at 13, 17.) Accordingly, Arbitrator Ross reconstructed the discipline to which the company could subject Mr. McFadden under the collective bargaining agreements. Specifically, he found that the company was entitled to suspend Mr. McFadden for three days as a result of the second infraction and seven days as a result of the third. (Arbitrator's Opinion at 18-19.) Thus, he reduced Mr. McFadden's total suspension from forty to ten days and ordered the company to reimburse Mr. McFadden for the time he was suspended inappropriately. (Id. at 20-21.)
Arbitrator Ross wrote:
The above findings establish that on May 3 and August 11, 1999, the grievant committed offenses equivalent to his misconduct of failing to follow instructions on December 29, 1998.
Absent the March 30 three-day suspension, it is necessary and reasonable to reconstruct the May 3 incident as the second offense resulting in a three-day suspension, especially when considering the grievant's deliberate disobedience.
Absent the August 10 30-day suspension, it is necessary and reasonable to reconstruct the August 11 incident as the third offense resulting in a seven-day suspension, especially after considering the grievant's repeated failure to follow instructions.
(Arbitrator's Opinion at 18-19.)
The arbitrator did not, however, order the company to reinstate Mr. McFadden. He concluded that, even with the decreased number of legitimate warning letters and reduced suspensions, the company was entitled to terminate Mr. McFadden. (Id. at 19-20.)
The Union filed this lawsuit on December 20, 2000 seeking to have the court vacate the arbitrator's award insofar as it upholds Mr. McFadden's dismissal. Currently pending are the parties' cross-motions for summary judgment.
STANDARD OF REVIEW
It is well settled that judicial review of an arbitrator's award is very limited. See United Steelworkers v. Am. Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343 (1960); United Steelworkers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347 (1960); United Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358 (1960); United States Postal Serv. v. Am. Postal Workers Union, AFL-CIO, 204 F.3d 523, 527 (4th Cir. 2000) ("[J]udicial review of arbitration awards is extremely limited — in fact, it is among the narrowest known to the law.") (internal punctuation and citation omitted). Indeed, "[a] court does not `sit to hear claims of factual or legal error by an arbitrator,' and must defer to the arbitrator `as long as the arbitrator is even arguably construing or applying the contract.'" Champion Int'l Corp. v. United Paperworkers Int'l Union, 168 F.3d 725, 728 (4th Cir. 1999) (quoting United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 371 (1987)). Thus, the court "must 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) (citation omitted). See also Yuasa, Inc. v. International Union of Electronic, Electrical, Salaried, Mach. Furniture Workers, Local 175, 224 F.3d 316, 320-21 (4th Cir. 2000); United States Postal Serv., 204 F.3d at 527. "An arbitrator does not have carte blanche, however, to `dispense his own brand of industrial justice'" but, "[r]ather, . . . `is confined to interpretation and application of the collective bargaining agreement.'" United States Postal Serv., 204 F.3d at 527 (quoting Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361.). Accordingly, an arbitrator's award may be overturned only if it "violates clearly established public policy, fails to draw its essence from the collective bargaining agreement, or reflects merely the arbitrator's personal notions of right and wrong." Champion, 168 F.3d at 729 (citing Mountaineer Gas, 76 F.3d at 608). See also Yuasa, 224 F.3d at 321.
"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.'" United States Postal Serv., 204 F.3d at 527 (quoting Misco, 484 U.S. at 38, 108 S.Ct. at 371.). Thus,
[i]n determining whether an arbitration award draws its essence from the collective bargaining agreement, and whether the arbitrator acted within the scope of his authority under that agreement, [the court] examine[s]:
(1) the arbitrator's role as defined by the [agreement]; (2) whether the award ignored the plain language of the [agreement]; and (3) whether the arbitrator's discretion in formulating the award comported with the essence of the [agreement's] proscribed limits.
Int'l Union, United Mine Workers of Am. v. Marrowbone Dev. Co., 232 F.3d 383, 388 (4th Cir. 2000) (quoting Mountaineer Gas, 76 F.3d at 608.). If it determines that the arbitrator's award does not draw its essence from the contract, the court will refuse to enforce it.
ANALYSIS
The relevant portion of the Cargo Agreement provides that
[n]o employee shall be disciplined for other than a Major Offense unless (a) prior written notices of such proposed discipline, including proposed warning letters is given to the Union, which shall have a reasonable opportunity to respond before such action is implemented; and (b) the employee has received at least one prior written warning for the same or equivalent offense within the last twelve (12) months in the case of a suspension for three (3) days or less or at least two (2) prior warnings for the same offense within the last twelve (12) months in the case of a suspension for from four (4) to seven (7) days; or has received at least three written warnings for the same offense within the last twelve (12) months in the case of a suspension for from eight (8) to thirty (30) days, or has been suspended for more than seven (7) days within the last twelve (12) months in the case of termination.
(Mem. Supp. Pl.'s Mot. for Summ. J., Ex. 2. at 163.) The dispute in this case centers around the last provision of this paragraph. Once the arbitrator eliminated two of the five warning letters, he reconstructed the disciplinary schedule such that Mr. McFadden was suspended rightfully for three days as a result of the second letter and seven days as a result of the third. He then concluded that "the Company properly terminated [Mr. McFadden] for having been suspended for more than seven days within the previous 12 months." (Arbitrator's Opinion at 20.)
None of the incidents for which Mr. McFadden was disciplined was a "Major Offense." (Mem. Supp. Pl.'s Mot. for Summ. J. at 5 n. 7; Arbitrator's Opinion at 19 n. 7.)
The Union argues that this determination was in error because "[t]ermination may occur when a new offense takes place and the employee has been suspended for more than seven days within the last twelve months." (Mem. Supp. Pl.'s Mot. for Summ. J. at 6-7; see also id. at 18, "Progressive discipline requires new, additional offenses before new, more harsh discipline may issue.") Once Arbitrator Ross reduced the number of suspensions from five to three, there was no new offense which would justify termination under the Union's interpretation of the provision.
Arbitrator Ross rejected this argument. He wrote that the provision
is clear in requiring the prior commission of the same or equivalent offense(s) before a suspension can be imposed; however, the language is equally clear in not stating such a requirement prior to issuing a termination. Had the drafters intended otherwise, it would have been a simple matter of adding requirements for termination beyond the seven day/12 month prerequisite. Given the drafters' clear intent, the Union's double jeopardy contention is misplaced.
(Arbitrator's Opinion at 20.) In its appeal, the Union contends that this conclusion does not draw its essence from the contract and that, therefore, Arbitrator Ross exceeded his authority by reaching it. Specifically, the Union argues that the language of the provision is ambiguous and that Arbitrator Ross "should have inquired about and considered the `common law of the shop'" in interpreting it. (Mem. Supp. Pl.'s Mot. for Summ. J. at 12.) In response, the defendants argue that the provision is clear on its face and that the court lacks the authority to disturb the arbitrator's opinion on that issue.
The opinion continued:
The Union's progressive discipline contention fails to consider that the delay in issuing the successive disciplinary actions were [sic] due to its requests to postpone the actions and ultimately to proceed to arbitration. In these circumstances, the Union cannot convincingly argue that management wrongfully denied the grievant the benefits of progressive discipline by consecutively suspending him without an opportunity to improve his behavior.
(Arbitrator's Opinion at 20.) The Union also argues that this language coupled with comments in the opinion regarding the deliberate nature of Mr. McFadden's disobedience are evidence that Arbitrator Ross dispensed "his own brand of industrial justice." (Mem. Supp. Pl.'s Mot. for Summ. J. at 16-17; see also supra note 5.) The court disagrees. The paragraph quoted above relates to the Union's argument that the company was not entitled to suspend Mr. McFadden for several offenses at once. (See Def.s' Opp'n and Cross-Mot. for Summ. J., Ex. 1 at 19-21.) It does not indicate that Arbitrator Ross was impermissibly influenced by the Union's request for a delay in the proceedings. Moreover, the mentions of Mr. McFadden's deliberate behavior were made in the context of reconstructing his suspensions after Arbitrator Ross eliminated two warning letters. (Arbitrator's Opinion at 18-19.) As such, they were relevant to Arbitrator Ross's determination that the warnings were sufficient to warrant three and seven-day suspensions, respectively. The statements, therefore, do not evidence an abdication of his role as an impartial arbiter.
The court will assume that the provision is ambiguous. The only evidence of past practice presented by the Union, however, is an earlier arbitration opinion in which the language in question was discussed. (See id. at 14; id., Ex. 3, "Howell Opinion.") The Union requests that the court remand the case to arbitration for consideration of that opinion.
The Union also argues that Arbitrator Ross misperceived the parties' intent in adding a progressive discipline scheme for non-major offenses. (See Mem. Supp. Pl.'s Mot. for Summ. J. at 13; Def.s' Opp'n and Cross-Mot. for Summ. J., Ex. 1 at 19.) It does not, however, offer any evidence, other than the Howell opinion, that could be considered in determining the intent of the parties with regard to the specific requirements for progressive discipline.
Initially, the court notes that the Howell "Award was submitted to Arbitrator Ross for his consideration, and was argued to Arbitrator Ross in the Union's post-hearing brief." (Mem. Supp. Pl.'s Mot. for Summ. J. at 6 n. 8; see also id. at 14.) Indeed, in its brief to Arbitrator Ross, the Union dedicated several pages to explaining the Howell opinion. (Def.s' Opp'n and Cross-Mot. for Summ. J., Ex. 1 at 5-7.) The fact that Arbitrator Ross did not mention the Howell decision in his opinion does not mean that he failed to consider it. Indeed, it was before him, and the court is unwilling to conclude that he simply ignored it.
The Union also argues that Arbitrator Ross exceeded his authority by reducing the number of steps required before an employer may terminate an employee. (Mem. Supp. Pl.'s Mot. for Summ. J. at 18-19.) The Union contends that, in so doing, Arbitrator Ross modified the progressive discipline provision and, thereby, violated the PAAL's restriction that he "shall not have the authority to amend or modify any of the terms" of the PAAL or Cargo Agreement. (Id. at 19; PAAL at 113.) This argument, however, is simply a restatement of the Union's contention that Arbitrator Ross incorrectly interpreted the Cargo Agreement. It, therefore, fails for the reasons explains above.
Indeed, "[a] mere ambiguity in the opinion accompanying an award, which permits the inference that the arbitrator may have exceeded his authority, is not a reason for refusing to enforce the award." Enterprise Wheel, 363 U.S. at 598, 80 S.Ct. at 1361 (1960).
Moreover, despite the Union's arguments, the Howell opinion does not support its contention that an additional incident was required after the third warning letter before the company could terminate Mr. McFadden. Although that opinion does discuss the progressive discipline provision and does conclude that the company was not justified in terminating Mr. Howell, it does not do so for the reasons espoused by the Union in this case. (Howell Opinion at 14-17.) Rather, in that case, the grievant had served only one three-day suspension in the twelve months preceding his termination. (Id. at 15.) He had been assessed a 30-day suspension, but had not served it prior to being terminated. (Id.) As a result, the arbitrator concluded that the company could not terminate the grievant because he had not been suspended for more than seven days in the preceding twelve months. (Id. at 17.) He, however, did not issue any opinion regarding the number of incidents required prior to termination.
Thus, assuming for the purposes of this opinion that Arbitrator Ross was obligated to consider past practice, see CSX Transp., Inc. v. United Transp. Union, 29 F.3d 931, 939 (4th Cir. 1994), the court cannot conclude that he failed to do so. Although it may not agree with Arbitrator Ross's interpretation of the Cargo Agreement, the court cannot conclude that it "violates clearly established public policy, fails to draw its essence from the collective bargaining agreement, or reflects merely the arbitrator's personal notions of right and wrong." Champion Int'l Corp., 168 F.3d at 729. Accordingly, the defendants' motion for summary judgment will be granted and the plaintiff's motion will be denied. A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. The plaintiff's motion for summary judgment is denied;
2. The defendants' motion for summary judgment is granted;
3. The Clerk shall close this case; and
4. Copies of this Order and the accompanying Memorandum shall be mailed to counsel of record.