UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CUMBERLAND TIMES-NEWS

DIVISION OF THOMSON NEWSPAPERS,

INCORPORATED,

Plaintiff-Appellant,

No. 97-1517

v.

TEAMSTERS LOCAL UNION NO. 453,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, District Judge.

(CA-96-2428)

Argued: December 1, 1997

Decided: January 13, 1998

Before ERVIN and HAMILTON, Circuit Judges, and

WILSON, Chief United States District Judge

for the Western District of Virginia,

sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James Anthony Prozzi, JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Pittsburgh, Pennsylvania, for Appellant. Hugh

J. Beins, Sr., BEINS, BODLEY, AXELROD & KRAFT, P.C., Wash-
ington, D.C., for Appellee. ON BRIEF: Jonathan G. Axelrod,

BEINS, BODLEY, AXELROD & KRAFT, P.C., Washington, D.C.,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Cumberland Times-News Division of Thomson Newspapers, Inc.

(the Company) appeals the district court's grant of summary judgment in favor of Teamsters Local Union No. 453 (the Union). The

district court enforced an arbitration award in favor of the Union, in

particular Union member Rodger Lancaster, concluding that the arbitrator's award drew its essence from the December 1994 Collective

Bargaining Agreement (the CBA) between the Company and the

Union.1 For reasons that follow, we affirm.

I

Rodger Lancaster began part-time employment with the Company

in 1974, which turned into full-time employment in 1981. In September 1987, he was laid off from his full-time position as a newspaper

delivery person. Lancaster filed a grievance contending that the Company had violated the CBA by using independent contractors to perform bargaining unit work.

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1 Over the years, the Company and the Union have entered into successive CBAs, the most recent being the December 31, 1994 CBA which

expired on December 31, 1997. The parties agree that the provisions of

the CBAs in effect prior to the December 1994 CBA are the same in all

material respects as the CBA entered into in December 1994. For purposes of clarity, all references to the CBA are references to the December 1994 CBA.

 2
On August 27, 1988, Lancaster, who had evidently been working

part-time to deliver Sunday newspapers for the Company, was laid off

from his part-time position. He filed another grievance contending

again that bargaining unit work was being improperly assigned to

independent contractors.

Pursuant to the CBA, Lancaster's grievances proceeded to arbitration. After a hearing, Arbitrator Thomas E. Bracken concluded that

the Company did not violate the CBA when it laid off Lancaster from

his full-time position in September 1987 because the layoff was reasonable and in good faith. However, Arbitrator Bracken concluded

that the Company did not act reasonably and in good faith when it

laid off Lancaster from his part-time position in August 1988.

Accordingly, Arbitrator Bracken ordered that Lancaster receive back

pay and reinstatement.

After Arbitrator Bracken's decision, the Company and the Union

entered into a settlement agreement, dated June 14, 1990 (the June

1990 Settlement Agreement). In exchange for Lancaster's part-time

position and seniority rights, the Company gave Lancaster $2,000 and

agreed "that in the event a vacancy occur[red] in the Teamsters' bargaining unit one offer of employment [would] be made to Mr. Lancaster prior to the hiring of any person not then employed by the

Times-News." (J.A. 30).

In July 1995, two Union drivers retired. Following the retirement

of these drivers, the Company rearranged some of the delivery routes

and engaged additional independent contractors. Following the Company's refusal to rehire Lancaster, the Union filed the grievance at

issue in this case. A hearing was held on April 2, 1996 before Arbitrator Robert E. Nagle, who issued a decision on July 6, 1996. Arbitrator

Nagle concluded that the obligation to offer employment to Lancaster

created by the June 1990 Settlement Agreement was triggered when

the Company engaged independent contractors following the retirement of two Union employees. As an award, Arbitrator Nagle ordered

that Lancaster be reinstated and given back pay. To prevent the offer

of reinstatement from being defeated by future subcontracting, Arbitrator Nagle also ordered that Lancaster could not"be laid off as a

result of the subcontracting of bargaining unit work." (J.A. 50).

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The Company then brought this action in the United States District

Court for the District of Maryland seeking to vacate the labor arbitration award pursuant to § 301 of the Labor-Management Relations Act

of 1947. See 29 U.S.C. § 185 et seq. The Union cross-claimed to

enforce the arbitration award, and for prejudgment interest and attorney's fees.

The case was resolved by the district court on cross-motions for

summary judgment. On March 26, 1997, the district court granted the

Union's motion for summary judgment and denied the Company's

motion for summary judgment. The district court enforced Arbitrator

Nagle's award and awarded prejudgment interest, but it denied the

request for attorney's fees. On April 17, 1997, the Company filed a

timely notice of appeal.

II

An arbitration award may not be overturned unless the award "violates well-settled and prevailing public policy, fails to draw its

essence from the collective bargaining agreement or reflects the arbitrator's own notions of right and wrong." Mountaineer Gas Co. v. Oil

Chem. & Atomic Workers, 76 F.3d 606, 608 (4th Cir.), cert. denied,

117 S. Ct. 80 (1996). Our review is limited to determining "whether

the arbitrator did his job--not whether he did it well, correctly, or reasonably, but simply whether he did it." Id. In making this assessment,

we examine: "(1) the arbitrator's role as defined by the CBA;

(2) whether the award ignored the plain language of the CBA; and

(3) whether the arbitrator's discretion in formulating the award comported with the essence of the CBA's proscribed limits." Id.

The Company contends that Arbitrator Nagle exceeded his authority when he ordered that Lancaster could not "be laid off as a result

of the subcontracting of bargaining unit work." (J.A. 50).2 In support

of its position, the Company cites two provisions of the CBA. The

first is Article XX which provides that certain employees other than

Lancaster "shall remain as employees for the remainder of their working lives unless vacating [their employment] through retirement, res-

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2 The Company concedes that Arbitrator Nagle had the authority to

order reinstatement and back pay.

 4
ignation, permanent disability, death or discharge for cause." (J.A.

28). The second is Article V, § 3 which provides:

The arbitrator shall not have the authority to amend or modify this Agreement or establish new terms or conditions

under this Agreement. The arbitrator shall determine any

questions of arbitrability. In the event the position of the

Union is sustained, the aggrieved party shall be entitled to

all the benefits of this Agreement which would have accrued

to him had there been no grievance.

(J.A. 16).

With respect to Article XX of the CBA, the Company argues that

the remedial guarantee against future subcontracting given to Lancaster is the same afforded to the employees covered by Article XX of

the CBA and, therefore, Arbitrator Nagle created a new term and condition of employment for Lancaster in violation of the CBA. This

argument has no merit. Arbitrator Nagle's award does not put Lancaster on par with the employees covered by Article XX of the CBA, as

Lancaster does not have a position guaranteed for life. Clearly, Lancaster could be laid off if the Company consolidated his delivery

route with routes handled by existing employees.

The Company's stronger position lies in Article V,§ 3 of the CBA

which states that if "the position of the Union is sustained, the

aggrieved party shall be entitled to all the benefits of this Agreement

which would have accrued to him had there been no grievance." Id.

According to the Company, the guarantee which was set forth in

Arbitrator Nagle's decision gave Lancaster a greater benefit, namely,

unlimited insulation against the effects of subcontracting. At first

blush, this argument carries force in that, arguably, the CBA intimates

that the arbitrator can only grant relief that the employee would have

been entitled to had there been no grievance. However, the Company's argument founders when this provision of the CBA is considered

in conjunction with the June 1990 Settlement Agreement, which is

properly construed as a rider to the CBA, and may in fact modify it.

See, e.g., Davis v. Bell Atlantic-West Virginia, Inc., 110 F.3d 245, 249

(4th Cir. 1997) (recognizing that settlement agreements entered into

 5
following a grievance procedure initiated pursuant to the CBA may

modify the CBA and are fairly characterized as riders to the CBA).3

Following Arbitrator Bracken's decision ordering Lancaster to be

reinstated, the June 1990 Settlement Agreement was procured through

a deliberative process. In exchange for Lancaster's job and seniority

rights, the Company gave Lancaster $2,000 and agreed, in the event

a vacancy arose in the bargaining unit, to offer Lancaster a position

prior to the hiring of any person not employed by the Company. Once

a vacancy arose in the bargaining unit and the position was being performed by an independent contractor, the duty to hire Lancaster was

triggered and the terms of the June 1990 Settlement Agreement

breached.

The question then is simply the appropriate remedy. In this case,

Arbitrator Nagle selected a remedy to prevent the Company from

reneging on its promise to rehire Lancaster and to prevent the very

harm that caused Lancaster to grieve in the first place. In essence,

Arbitrator Nagle was protecting Lancaster from being hired on day

one and then, on day two, being laid off as a result of subcontracting.

In our view, this prospective remedy was authorized by the June 1990

Settlement Agreement, which itself contained a prospective agreement, and the CBA. Because Arbitrator Nagle's decision drew its

essence from the CBA, the district court correctly granted summary

judgment to the Union.4

III

For the reasons stated herein, the judgment of the district court is

affirmed.

AFFIRMED

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3 Notably, Article V, § 4 of the CBA provides that a "mutual settlement

of the grievance pursuant to the procedure set forth herein will be final

and binding on all parties and the employees involved." (J.A. 16).

4 For the reasons stated by the district court, we affirm the award of

prejudgment interest and the denial of attorney's fees. We also note that

the Company conceded at oral argument that if we held in favor of the

Union, Lancaster's right and protection against future subcontracting survives the expiration of the December 1994 CBA and any subsequent

CBAs unless the parties specifically contract away Lancaster's rights.

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