International Chemical Workers Union Council of United Food & Commercial Workers v. PPG Industries, Inc. , 97 F. App'x 400 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INTERNATIONAL CHEMICAL WORKERS 
UNION COUNCIL OF THE UNITED
FOOD AND COMMERCIAL WORKERS;
INTERNATIONAL CHEMICAL WORKERS
UNION COUNCIL OF THE UNITED
FOOD AND COMMERCIAL WORKERS,
Local Union No. 45C,  No. 03-1638
Plaintiffs-Appellants,
v.
PPG INDUSTRIES, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CA-01-142-5)
Argued: January 20, 2004
Decided: April 19, 2004
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: August Randall Vehar, UFCW Assistant General Coun-
sel, Office of General Counsel, INTERNATIONAL CHEMICAL
2 INT’L CHEMICAL WORKERS v. PPG INDUSTRIES
WORKERS UNION, Akron, Ohio, for Appellants. Charles David
Morrison, STEPTOE & JOHNSON, P.L.L.C., Clarksburg, West Vir-
ginia, for Appellee. ON BRIEF: Robert W. Lowrey, UFCW Assis-
tant General Counsel, Office of General Counsel, INTERNATIONAL
CHEMICAL WORKERS UNION, Akron, Ohio, for Appellants. Car-
olyn A. Wade, STEPTOE & JOHNSON, P.L.L.C., Clarksburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The International Chemical Workers Union Council of the United
Food and Commercial Workers and its Local Union No. 45C (collec-
tively "the Union") filed suit in the United States District Court for
the Northern District of West Virginia seeking to vacate, in part, an
arbitration award granted in favor of PPG Industries, Inc. ("PPG").
The Union appeals the district court’s order granting summary judg-
ment in favor of PPG. We agree with the district court that the arbitra-
tor did not exceed the scope of authority given him by the parties’
collective bargaining agreement, and that his decision properly drew
its essence from that agreement. Accordingly, we affirm the district
court’s order in all respects.
I.
PPG operates a chemical manufacturing plant in Natrium, West
Virginia. The Union represents the production and maintenance
employees at the PPG plant, including a group of employees known
as "instrumenticians." These employees inspect, maintain, and repair
various safety relief valves at the plant. The safety relief valves are
mechanical devices used to release pressure within pipes carrying
potentially hazardous materials at the facility. In the event of an unex-
INT’L CHEMICAL WORKERS v. PPG INDUSTRIES 3
pected build-up of pressure within a vessel or pipe, the valves func-
tion as "the last line of defense" to protect PPG employees from
serious injury or even death. J.A. at 283-84.
There are approximately 650 safety relief valves at the Natrium,
West Virginia Plant. In 1997, the Union discovered that PPG was
sending some of these valves off-site to be inspected and repaired by
outside shops. The Union believed that PPG’s practice of subcontract-
ing out this work traditionally performed by Union employees vio-
lated the terms of the parties’ collective bargaining agreement
("CBA"). Consequently, the Union filed Grievance No. G-15-97
under the grievance procedures laid out in the CBA. On August 5,
1999, during negotiations leading up to a successor CBA, the parties
reached a settlement concerning Grievance No. G-15-97 ("the Settle-
ment Agreement").
The parties agree that under the Settlement Agreement, PPG was
authorized to contract out the testing and repair work for all "PSM,"
"CRT," and "Section I" safety relief valves. J.A. at 562-63. This
group comprised about 130 of the 650 valves at the plant. PPG
insisted on the right to subcontract the work on these valves as regula-
tions issued by the Occupational Safety and Health Administration
("OSHA") required employers to "VR-certify" the repair of PSM,
CRT, and Section I valves. J.A. at 26-27. The VR-certification pro-
cess "provides a paper trial to document the source of the valve
repaired . . . and the source of all parts to that valve." Br. of Appellant
at 7-8 n.6. At all times relevant to these proceedings, the PPG plant
did not possess the capability to VR-certify safety relief valves. The
Settlement Agreement required PPG to provide the Union with a
quarterly list of all valves sent out for repair by VR-certified shops.
The parties disagree over the remaining 520 non-PSM, non-CRT,
and non-Section I valves (the "non-valves"). The Settlement Agree-
ment is silent as to how the parties agreed to handle the non-valves.
The Union contends that it understood the Settlement Agreement to
provide that the non-valves would continue to be repaired and main-
tained in-house. On the other hand, PPG contends that it agreed to
make every effort to keep the repair work for the non-valves in-house
while it studied the possibility of attaining VR-certification capabili-
ties at the PPG plant. PPG contends that the only restriction on its
4 INT’L CHEMICAL WORKERS v. PPG INDUSTRIES
power to subcontract valve work was contained in Article XIX, Para-
graph 9 of the CBA, which granted PPG "the right to sub-contract
work where the purpose and intent is not to reduce the regular work-
ing force." J.A. at 508.
The Union filed another grievance on August 8, 2000, Grievance
No. G-20-00, alleging that PPG was violating the Settlement Agree-
ment by subcontracting the repair work for the non-valves. J.A. at
548. Grievance G-20-00 was filed in accordance with the grievance
procedures established under the successor CBA, which became
effective on August 18, 1999. This grievance was not settled but,
rather, proceeded to final and binding arbitration. A hearing on the
Union’s grievance was held on June 29, 2001 before arbitrator How-
ard D. Silver, who rendered a decision and award on September 10,
2001.
While the arbitrator found that "the Union had reason to conclude
that the sub-contracting out would be limited to about 131 valves,"
J.A. at 39, he concluded that the Settlement Agreement was unen-
forceable for two reasons. First, he found that the Settlement Agree-
ment would contravene a strong public policy expressed in OSHA
regulations and private industry standards promoting the safety of fac-
tory workers. Arbitrator Silver stated that
the nature of the work to be performed by the safety relief
valves is so inextricably bound up with the safety of workers
at the Natrium plant that these valves are the subject of a
strong public policy expressed through OSHA regulations
and other public laws imposing greater regulation of the
inspection, preventive maintenance, and repair of these
valves. The present industry standards strongly recommend
testing by VR-certified staff . . . . No agreement between an
employer and a union is sufficient to overcome the strong
public policy in support of better testing, better skills in test-
ing, and better facilities in testing.
J.A. at 40.
Second, the arbitrator refused to enforce the Settlement Agreement
on the grounds that it "directly affects express language in the parties’
INT’L CHEMICAL WORKERS v. PPG INDUSTRIES 5
collective bargaining agreement." J.A. at 41. Specifically, Arbitrator
Silver found that he could not enforce the terms of the Settlement
Agreement without modifying the language of the CBA, specifically
Article XIX, Paragraph 9, which authorized PPG to subcontract work
if its purpose was not to reduce the labor force. He stated that:
If the arbitrator were to enforce the agreement between the
parties as urged by the Union in this case, the arbitrator
would order the parties to assume a result which could only
be reached, in the absence of the Employer’s intention to
reduce the regular working force, by modifying language
within the parties’ collective bargaining agreement, specifi-
cally Article XIX, paragraph 9. Modifying the language of
the collective bargaining agreement between the parties is
an action expressly withheld from the arbitrator by the par-
ties’ collective bargaining agreement. The arbitrator is with-
out the authority to make such a modification.
J.A. at 41. Thus, Arbitrator Silver concluded that the subcontracting
of the non-valves did not violate the CBA, and he accordingly issued
an award denying the Union’s grievance.
On December 10, 2001, the Union filed a complaint in the district
court pursuant to § 301 of the Labor Management Relations Act of
1947, 29 U.S.C. § 185, seeking to vacate, in part, the arbitration
award. The Union sought to vacate the portion of the arbitration deci-
sion which concluded that public policy interests in favor of promot-
ing worker safety precluded enforcement of the Settlement
Agreement. With regard to the arbitrator’s conclusion that he could
not enforce the Settlement Agreement in light of Article XIX, Para-
graph 9 of the parties’ CBA, the Union requested an order of specific
performance from the trial court enforcing the terms of the Settlement
Agreement as "a contract separate and apart from the CBA . . . ." J.A.
at 78.
PPG answered the complaint and filed a counterclaim against the
Union requesting that the arbitration award be enforced. The parties
subsequently filed cross motions for summary judgment. On April 24,
2003, the district court granted summary judgment in favor of PPG
on the grounds that "the arbitrator had the authority to make his pub-
6 INT’L CHEMICAL WORKERS v. PPG INDUSTRIES
lic policy findings and that there was evidence to support the arbitra-
tor’s findings in this regard." J.A. at 234. The court further concluded
that in view of the "considerable weight to be afforded an arbitrator’s
decision," the Union presented no grounds to vacate the arbitrator’s
public policy findings. J.A. at 234-35. Having affirmed the arbitra-
tor’s award on this ground, the district court found it unnecessary to
address the Union’s argument that the Settlement Agreement should
nevertheless be enforced as a separate contractual agreement between
the parties.
This appeal followed.
II.
Although we review the district court’s order granting summary
judgment de novo, see Gen. Drivers, Local Union No. 509 v. Ethyl
Corp., 68 F.3d 80, 83 (4th Cir. 1995), "judicial review of an arbitra-
tion award is among the narrowest known to the law." Richmond,
Fredericksburg & Potomac R.R. Co. v. Transp. Communications Int’l
Union, 973 F.2d 276, 278 (4th Cir. 1992) (internal quotation marks
omitted). We have consistently observed that "arbitration must be
final to be effective. Permitting judicial second-guessing of arbitral
awards would transform a binding process into a purely advisory one,
and ultimately impair the value of arbitration for labor and manage-
ment alike." Westvaco Corp. v. United Paperworkers Int’l Union ex
rel. Local Union 676, 171 F.3d 971, 974 (4th Cir. 1999) (citation
omitted) (internal quotation marks omitted). Therefore, we "do[ ] 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 con-
struing or applying the contract." Champion Int’l Corp. v. United
Paperworkers Int’l Union, 168 F.3d 725, 728 (4th Cir. 1999) (internal
quotation marks omitted).
In essence, "we must determine 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). However, not-
withstanding the exceedingly narrow scope of our review on appeal,
we "must vacate [the] arbitrator’s award if it violates clearly estab-
lished public policy, fails to draw its essence from the collective bar-
INT’L CHEMICAL WORKERS v. PPG INDUSTRIES 7
gaining agreement, or reflects merely the arbitrator’s personal notions
of right and wrong." Champion Int’l, 168 F.3d at 729. In the light of
these well-established principles, we consider the merits of the
Union’s appeal.
As noted earlier, the district court granted summary judgment to
PPG on the grounds that the CBA authorized the arbitrator to make
his public policy findings, and that the evidence supported his conclu-
sion that a strong public policy in favor of promoting worker safety
precluded enforcement of the Settlement Agreement. The Union con-
tends, however, that the arbitrator exceeded his authority under the
CBA because "whether an arbitration award or contract should not be
enforced for ‘public policy’ reasons is an issue reserved to the
courts." Br. of Appellant at 23. It is indeed true that the question of
whether a collective bargaining agreement or an arbitration award
violates public policy "is ultimately one for resolution by the courts."
W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rub-
ber Workers, 461 U.S. 757, 766 (1983). That principle, however, is
not implicated by the facts before us. Arbitrator Silver relied on his
public policy findings in reaching his decision and issuing the arbitra-
tion award. At no point did he purport to invalidate the parties’ CBA,
much less his own arbitration award on the grounds that it violated
public policy.
Next, the Union argues that the arbitrator did not have evidence to
support his public policy findings. Specifically, it argues that the
OSHA regulations cited by the arbitrator were applicable only to the
PSM, CRT, and Section I valves — valves that are not at issue in this
appeal. Thus, the Union argues that there was no evidence that the use
of Union instrumenticians to test and repair the non-valves would vio-
late any law or public policy. Arbitrator Silver, however, found evi-
dence of a public policy supporting worker safety not only in the
mandatory OSHA regulations, but also in private industry recommen-
dations promoting "better testing, better skills in testing, and better
facilities in testing" all safety relief valves. J.A. at 40. The arbitrator’s
reliance on non-binding private industry recommendations in this
manner was not inappropriate. We have previously held that "in the
absence of any express limitation or reservation included in the griev-
ance, we presume that the parties, who agreed to arbitration, agree
that the authority to address everything necessary to resolve the par-
8 INT’L CHEMICAL WORKERS v. PPG INDUSTRIES
ticular grievance is conferred upon the arbitrator." Yuasa, Inc. v. Int’l
Union of Elec. Workers, Local 175, 224 F.3d 316, 321 (4th Cir.
2000).
Finally, the Union argues that the district court erred in refusing to
order the specific performance of the Settlement Agreement. The
Union contends that the arbitrator’s decision that PPG did not violate
the CBA is not final and binding with respect to PPG’s alleged breach
of the Settlement Agreement. More precisely, the Union argues that
the issue before the arbitrator was simply whether PPG’s conduct vio-
lated the CBA, and because the Settlement Agreement was a contract
"separate and apart" from the CBA, the arbitrator’s determination that
the CBA had not been violated did not dispose of the Union’s com-
plaints regarding the Settlement Agreement. Thus, the Union argues
that notwithstanding the arbitration decision, the trial court should
have enforced the "separate" Settlement Agreement limiting PPG’s
power to subcontract valve work.
Whether the August 1999 settlement of grievance G-15-97 is, as
the Union contends, an agreement "separate and apart" from the col-
lective bargaining agreement is ultimately of no consequence since
the Union submitted its grievance concerning PPG’s subcontracting
of the non-valves to Arbitrator Silver for final and binding arbitration.
The Union pursued its grievance to arbitration with the understanding
that, under the express terms of the parties’ CBA, only grievances
involving alleged violations of the CBA could be submitted to arbitra-
tion.* At no point during the arbitration proceedings did the Union
claim that its grievance concerning the Settlement Agreement was
outside the scope of the CBA or otherwise not properly before the
arbitrator for final review and disposition. It is well-established that
"when a party consents to arbitration it cannot attack the award on
grounds not raised before the arbitrator." District 17, United Mine
Workers of America v. Island Creek Coal Co., 179 F.3d 133, 140 (4th
Cir. 1999). Moreover, the Union’s argument is undermined by its
admission that "the Arbitrator was given authority by the parties to
*Article VII, Paragraph 1 of the CBA provided that "[o]nly grievances
involving alleged violations with respect to the application or interpreta-
tion of the terms of this agreement may be submitted by either party to
arbitration." J.A. at 482.
INT’L CHEMICAL WORKERS v. PPG INDUSTRIES 9
decide if there was a settlement, how that Settlement should be inter-
preted, and whether the Settlement was violated." J.A. at 79-80
(emphasis removed).
III.
Ultimately, the Union received a fair hearing before an impartial
arbitrator concerning its claim that the Settlement Agreement had
been breached. We are persuaded that his decision "dr[ew] its essence
from the collective bargaining agreement," Yuasa, 224 F.3d at 321,
namely, Article XIX, Paragraph 9 of the CBA, which authorized PPG
"to sub-contract work where the purpose and intent [was] not to
reduce the regular working force." J.A. at 508. Accordingly, we
affirm the district court’s order granting summary judgment in favor
of PPG.
AFFIRMED