UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1917

MERCK & COMPANY, INCORPORATED, 

 Plaintiff – Appellee, 

 v. 

INTERNATIONAL CHEMICAL WORKERS UNION COUNCIL OF THE UNITED 

FOOD AND COMMERCIAL WORKERS UNION, LOCAL 94C, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Western 

District of Virginia, at Harrisonburg. Samuel G. Wilson, 

District Judge. (5:07-cv-00114-SGW) 

Argued: March 25, 2009 Decided: July 6, 2009 

Before MICHAEL, KING, and AGEE, Circuit Judges. 

Reversed and remanded by unpublished per curiam opinion. 

ARGUED: Jonathan G. Axelrod, BEINS & AXELROD, PC, Washington, 

D.C., for Appellant. Joseph Edward Santucci, Jr., MORGAN, LEWIS 

& BOCKIUS, LLP, Washington, D.C., for Appellee. ON BRIEF: 

Heather S. Gelfuso, MORGAN, LEWIS & BOCKIUS, LLP, Washington, 

D.C., for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 The International Chemical Workers Union Council of the 

United Food and Commercial Workers Union, Local 94C (the 

“Union”), appeals from the district court’s adverse decision of 

August 12, 2008, awarding summary judgment to Merck & Company, 

Incorporated (“Merck”), and vacating an arbitration award in 

favor of the Union. See Merck & Co., Inc., v. Int’l Chem. 

Workers Union Council of the United Food and Commercial Workers 

Union, Local 94C, No. 5:07-cv-00114 (W.D. Va. Aug. 12, 2008) 

(the “Memorandum Opinion”).1 The court ruled that the arbitrator 

had exceeded his authority in making the arbitration award, 

which required Merck to reinstate one of its employees. As 

explained below, we reverse and remand for enforcement of the 

award. 

I. 

A. 

 On September 7, 2005, Dale Moubray reported to work at 

Merck’s Elkton, Virginia, facility under the influence of 

alcohol. Moubray, a pipe-fitter/millwright, is represented by 

the Union, which is the exclusive collective bargaining 

 1

 The Memorandum Opinion is found at J.A. 151-56. 

(Citations herein to “J.A. ___” refer to the contents of the 

Joint Appendix filed by the parties in this appeal.) 

2 
representative for a bargaining unit of production and 

maintenance employees at Merck’s Elkton facility.2 Rather than 

terminate Moubray from his employment, Merck imposed a five-day 

unpaid disciplinary suspension. Following the suspension, on 

September 13, 2005, Merck, Moubray, and a Union representative 

entered into a “Return to Work & Last Chance Agreement” (the 

“Last Chance Agreement” or the “LCA”). See J.A. 58-59. 

 The Last Chance Agreement required Moubray to, inter alia, 

meet with a representative of Merck’s Employee Assistance Plan 

in order to establish a treatment plan. The LCA further obliged 

Moubray “to comply with all recommendations and requirements as 

established by the Employee Assistance Plan and the Health 

Services Department.” J.A. 58. If, at any time, Moubray failed 

to comply with these recommendations and requirements, the LCA 

provided that he would “be subject to immediate termination and 

such termination [would] not be subject to the contractual 

grievance and arbitration procedures.” Id. at 59.3 The LCA 

stated, however, “that in the event of a termination, Mr. 

Moubray may file a grievance challenging the facts upon which 

 2

 Merck and the Union were signatories to a collective 

bargaining agreement in effect from May 1, 2003, through April 

30, 2006 (the “CBA”). See J.A. 1-49. 

3

 The CBA created a governing grievance procedure that 

included arbitration of certain disputes. See J.A. 38-39. 

3 
the Company determined that Mr. Moubray was non-compliant or 

otherwise in violation of this Agreement.” Id. 

 On the following day, September 14, 2005, Martha Sheridan, 

a representative of Merck’s employee assistance program, met 

with Moubray and decided that he was to participate in a program 

offered by an independent entity called the LIFE Recovery 

Program (the “Program”). At his first session in the Program, 

on September 19, 2005, Moubray executed a patient contract (the 

“Program Contract”), agreeing to the following relevant 

conditions: 

1. I will attend the LIFE Recovery Program . . . 

Monday, Tuesday, Thursday . . . . If extraordinary 

circumstances prevent my attendance or results in 

tardiness, I will notify the staff immediately. 

. . . 

7. I will follow all relevant patient rules and 

regulations as stated in patient handbook.4 

. . . 

11. I understand that the following behaviors may 

result in premature discharge from the program: 

. . . 

 4

 The “patient handbook” of the Program provides, in 

relevant part, that “[p]rompt attendance at all scheduled groups 

and activities is expected except when excused by your 

counselor, doctor, or nurse. You are expected to participate in 

and attend all scheduled groups and activities.” J.A. 63. 

4 
5. Lack of cooperation with program expectations 

to the extent of impeding progress (This includes 

chronic tardiness or absenteeism). 

J.A. 62. 

 In the weeks following the Program’s first session, Moubray 

attended ten of eleven sessions, with a single excused absence 

on September 22, 2005. He then missed a session on October 13, 

2005, attended sessions on October 17, 2005 and October 24, 

2005, and missed sessions on October 18 and October 25, 2005. 

Moubray did not, prior to any of the three missed sessions, 

notify the Program to explain his absence or request to be 

excused. Moubray returned for a session on October 27, 2005, 

and met with his Program case manager, Dee Michael. Michael 

advised him not to miss the October 31, 2005 session, even 

though Moubray requested to be excused from it to take his 

godson trick-or-treating. Despite Michael’s warning, Moubray 

did not attend the October 31 session. Moubray returned for the 

session of November 1, 2005, and was advised that he could not 

continue with the Program until he met with Michael. Moubray 

called Michael on November 2, 2005, and scheduled an appointment 

for the following day. Also on November 2, Sheridan, Merck’s 

employee assistance program representative, called Michael to 

check on Moubray’s status in the Program. Michael summarized 

Moubray’s participation, and on November 3, 2005, sent a 

confirming letter to Merck (the “Letter”). Michael’s Letter 

5 
concluded: “As of today’s date, Mr. Moubray is not in 

compliance with our program requirements.” J.A. 69. 

 Upon Merck’s receipt of the Letter, Sheridan instructed 

Moubray not to attend the November 3, 2005 meeting with Michael 

because he had been kicked out of the Program. That same day, 

Merck notified Moubray by letter that he was out of compliance 

with the Last Chance Agreement and was, therefore, being 

suspended from employment, with intent to discharge. On 

November 14, 2005, Moubray was discharged by Merck. 

B. 

 On November 15, 2005, the Union filed a grievance with 

Merck, protesting Moubray’s discharge and seeking his 

reinstatement. Merck conducted a grievance hearing on December 

16, 2005, and, that same day, denied the Union’s grievance. The 

Union then submitted its grievance to arbitration before the 

Federal Mediation and Conciliation Service, on whether Moubray 

had complied with the terms of the Last Chance Agreement. On 

August 8, 2007, the parties participated in an arbitration 

hearing conducted by Arbitrator Jeffrey B. Tener (the 

“Arbitrator”). Two months later, on October 19, 2006, the 

Arbitrator entered an Arbitration Opinion and Award (the 

“Award”),5 concluding that, although Merck was entitled to 

 5

 The Award is found at J.A. 89-109. 

6 
terminate Moubray if he was out of compliance with the Last 

Chance Agreement, “[i]t cannot be concluded that Moubray was not 

compliant with the conditions of the last [chance] agreement so 

he was not subject to immediate termination.” Award 20. The 

Award thus directed Merck to “reinstate [Moubray] to his former 

position and to make [him] whole.” Id. When Merck refused to 

accept the Award and reinstate Moubray, this litigation ensued. 

 Two months later, on December 26, 2007, Merck filed its 

complaint in the Western District of Virginia, pursuant to § 301 

of the Labor Management Relations Act, 29 U.S.C. § 185, seeking 

to vacate the Award. Merck alleged that the Arbitrator had 

ignored the plain language of the Last Chance Agreement and that 

the Award failed to draw its essence from the LCA. The Union 

disagreed, and counterclaimed for enforcement of the Award. On 

May 1, 2008, the parties filed cross-motions for summary 

judgment. 

 On August 12, 2008, the district court granted summary 

judgment to Merck and denied the Union’s cross-motion. See

Memorandum Opinion 1-2. In so ruling, the court recognized the 

narrow scope of judicial review for an arbitration award, but 

concluded that the Award must be vacated in any event because it 

“contradicts the express provisions of the last chance 

agreement.” Id. at 5. The court observed that “Moubray plainly 

agreed to comply with ‘all’ treatment program ‘requirements’ and 

7 
recommendations, which unequivocally include punctual 

attendance. He also plainly agreed that he was subject to 

immediate termination if ‘at any time’ he became noncompliant.” 

Id. The Memorandum Opinion observed that “[t]he agreement says 

absolutely nothing about expulsion or discharge from the 

program. Nor can the agreement be read to mean that Moubray is 

in compliance with all program requirements and recommendations 

so long as he has not been expelled.” Id. at 5-6. Predicated 

on these observations, the court concluded that the Award “does 

not draw its essence from the last chance agreement” and must 

therefore be vacated. Id. at 6. 

 On August 18, 2008, the Union filed its timely notice of 

appeal, and we possess jurisdiction pursuant to 28 U.S.C. 

§ 1291. 

II. 

 We review de novo a district court’s award of summary 

judgment. Volvo Trademark Holding Aktiebolaget v. Clark

Machinery Co., 510 F.3d 474, 481 (4th Cir. 2007). Judicial 

review of an arbitration award in the collective bargaining 

context is “extremely limited,” and “among the narrowest known 

to the law.” Long John Silver’s Rests., Inc. v. Cole, 514 F.3d 

345, 349 (4th Cir. 2008) (internal quotation marks omitted). A 

reviewing court is entitled to “determine only whether the 

8 
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). “[A]s long as the arbitrator is even arguably 

construing or applying the contract and acting within the scope 

of his authority,” an arbitration award should be sustained, 

even if “a court is convinced he committed serious error.” 

United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38 

(1987). 

III. 

A. 

 Under the deferential standard applicable here, an 

arbitration award must be sustained if it “draws its essence” 

from the parties’ agreement. United Steelworkers of Am. v. 

Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960). An 

arbitration award draws its essence from the agreement so long 

as “[t]he arbitrator [does] not ignore the plain language of the 

contract.” United Paperworkers Int’l Union v. Misco, Inc., 484 

U.S. 29, 38 (1987); Norfolk & W. Ry. Co. v. Transp. Commc’ns 

Int’l Union, 17 F.3d 696, 700 (4th Cir. 1994) (observing that 

“an award that ignores the plain and unambiguous language of the 

arbitration contract does not ‘draw its essence’ from the 

agreement”). Notwithstanding this deferential mandate, “[a]n 

9 
arbitrator does not have carte blanche . . . to ‘dispense his 

own brand of industrial justice.’” U.S. Postal Serv. v. Am. 

Postal Workers Union, 204 F.3d 523, 527 (4th Cir. 2000) (quoting 

Enter. Wheel, 363 U.S. at 597). Rather, “an arbitrator is 

confined to interpretation and application of the parties’ 

agreement.” Id. (internal quotation marks omitted). In 

resolving a labor dispute, an arbitrator may be called upon to 

make factual findings or to interpret the applicable agreement. 

See Misco, Inc., 484 U.S. at 38. So long as an arbitrator does 

so within the confines of the controlling agreement and his 

interpretation of the agreement is not “wholly baseless and 

without reason,” Norfolk & W. Ry. Co., 17 F.3d at 700, “the 

courts have no business overruling [an arbitrator] because their 

interpretation of the contract is different from [the 

arbitrator’s],” U.S. Postal Serv., 204 F.3d at 527 (internal 

quotation marks omitted). 

B. 

 In this proceeding, the parties agree that the underlying 

arbitration proceedings were governed by the discharge 

provisions of the Last Chance Agreement. Cf. Coca-Cola Bottling 

Co. v. Teamsters Local Union No. 688, 959 F.2d 1438, 1441 (8th 

Cir. 1992) (concluding that comparable last chance agreement 

superseded collective bargaining agreement). The LCA provided 

for Moubray’s immediate termination — without recourse to the 

10 
grievance and arbitration procedures established in the CBA —

“[i]f at any time Mr. Moubray [became] non-compliant with the 

conditions of this Agreement.” J.A. 59. The Union was 

authorized to dispute, however, “the facts upon which the 

Company determined that Mr. Moubray was non-compliant or 

otherwise in violation of this Agreement.” Id. Pursuant to the 

LCA’s authorization, the Union challenged and arbitrated the 

issue of whether Moubray had complied with the terms of the LCA. 

The parties do not dispute that the termination of Moubray was 

properly arbitrable. They also do not dispute the fact that the 

Arbitrator possessed authority to consider and make an award 

concerning the matter. Rather, Merck argues that the Award of 

reinstatement does not draw its essence from the LCA. 

Accordingly, the terms of the LCA, and the Arbitrator’s view of 

those terms, are controlling here. 

 The Last Chance Agreement required that Moubray “comply 

with all recommendations and requirements as established by the 

Employee Assistance Plan and the Health Services Department.” 

J.A. 58. In making the Award, however, the Arbitrator 

determined that “[t]here is no evidence that either the Plan or 

the [Health Services] Department established any requirements or 

had any recommendations other than those of the LIFE Recovery 

Program.” Award 18. As such, the Award incorporated the 

requirements of the Program into the Last Chance Agreement, 

11 
concluding that “it is the requirements of that program which 

are controlling in this case.” Id. 

 The Program, in turn, imposed attendance requirements on 

Moubray and specified conditions for his continued participation 

therein. Moubray was required to attend sessions three evenings 

per week and to notify staff if “extraordinary circumstances” 

prevented his attendance, and the patient handbook of the 

Program provided that “[p]rompt attendance at all scheduled 

groups and activities is expected except when excused by [a] 

counselor, doctor, or nurse.” J.A. 62-63. 

 In making the Award, the Arbitrator agreed with these 

conditions, but nevertheless concluded that “the evidence still 

does not support the conclusion that Moubray was not in 

compliance with the program requirements.” Award 19. Although 

the Program Contract specified that certain behavior — such as 

chronic absenteeism — “may result in premature discharge from 

the program,” the Arbitrator explained in the Award that the 

evidence was “clear” that Moubray had not been discharged from 

the Program as of November 3, 2005. See id. The Award observed 

that the Letter, “upon which the Company relied so heavily and 

which states that ‘As of today’s date, Mr. Moubray is not in 

compliance with our program requirements’” also specified that 

Moubray “was told he would not be allowed back into the group 

until he first met with me.” Id. (quoting J.A. 69). Thus, 

12 
although Michael concluded that Moubray was not in compliance 

with the Program’s requirements, he had not been discharged from 

the Program. See id. Accordingly, the Award concluded that the 

“LIFE Recovery Program was not consistent,” and, although it 

reported to Merck that Moubray was not in compliance with its 

requirements, Moubray had not been discharged from it. 

 Finally, the Arbitrator emphasized in the Award that 

“Moubray did not know or believe that he was not in compliance 

nor did he have any reason to suspect that he was not in 

compliance.” Award 19. Importantly, the Arbitrator found that 

Moubray had credibly testified that he and the other 

participants in the Program had been advised that they could 

make up sessions if they missed them. See id. at 20. The Award 

explained that the evidence corroborated Moubray’s testimony, in 

that he had not been discharged from the Program and had been 

permitted to make up earlier sessions that had been missed. 

Thus, the Award concluded, “it was reasonable for [Moubray] to 

believe that he was able to miss sessions and to make them up. . 

. . He had no reason to believe he was not in compliance with 

the requirements of the program.” Id. 

 We agree with the district court that the Award considered 

Moubray’s continued participation in the Program — or the 

absence of a discharge from the Program — to be synonymous with 

his compliance with the Program’s requirements. We also agree 

13 
with the court that the Arbitrator relied, in part, on Moubray’s 

subjective belief concerning his compliance with the Program 

requirements in concluding that Moubray had complied with the 

LCA. Notwithstanding these shortcomings, however, the Award 

must be sustained. See Misco, Inc., 484 U.S. at 38 (explaining 

that award should be sustained despite “serious error,” so long 

as arbitrator “is even arguably construing or applying the 

contract and acting within the scope of his authority”). 

 Although the terms of the LCA — requiring Moubray to 

“comply with all recommendations and requirements as established 

by the Employee Assistance Plan and the Health Services 

Department” — are plain and unambiguous, these terms alone are 

insufficient to resolve the issue presented to the Arbitrator. 

As the Award recognized, the Program established the only 

relevant recommendations and requirements, but applied them 

inconsistently. Thus, the Program required Moubray to 

unequivocally attend three weekly sessions, but statements of 

the Program staff contradicted this attendance requirement. 

And, although the Program established attendance requirements, 

it also provided for exceptions — such as an excuse by a 

counselor, doctor, or nurse. Importantly, the Program Contract 

itself specified the consequences of violating it. Rather than 

immediate expulsion for an unexcused absence, the Program 

Contract provided that “chronic tardiness or absenteeism” “may

14 
result in premature discharge from the program.” J.A. 62 

(emphasis added). Although the district court concluded that 

this provision “unequivocally include[d] punctual attendance,” 

Memorandum Opinion 5, such language provides sufficient 

flexibility to justify the Arbitrator’s interpretation of it. 

Rather than “ignor[ing] the plain language of the contract,” the 

Arbitrator confined himself “to interpretation and application 

of the parties’ agreement,” U.S. Postal Serv., 204 F.3d at 527, 

and we must defer to his interpretation of the Program’s 

requirements. 

 In these circumstances, it was entirely plausible for the 

Arbitrator to conclude that Moubray was yet in compliance with 

the “requirements” of the Program. See Norfolk & W. Ry. Co., 17 

F.3d at 700 (explaining that where arbitrator confines himself 

to plain language of contract, arbitration award should be 

confirmed unless “wholly baseless and completely without 

reason”). The Arbitrator interpreted the LCA by looking to and 

applying the requirements of the Program. He carefully examined 

the Program’s documents and explained his view of what was 

required. Even if we were to disagree with the Arbitrator’s 

interpretation and reasoning, we cannot conclude that his 

reasoning is wholly baseless or completely without reason. Put 

simply, we are entitled to “determine only whether the 

arbitrator did his job — not whether he did it well, correctly, 

15 
16 

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). Accordingly, the Award “draws its essence” 

from the Last Chance Agreement and, as a result, we must reverse 

the ruling of the district court and direct enforcement of the 

Award. 

IV. 

 Pursuant to the foregoing, we reverse the district court 

and remand for enforcement of the Award. 

REVERSED AND REMANDED