*

The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0262p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

TITAN TIRE CORPORATION OF BRYAN,

 Plaintiff-Appellant,

v.

UNITED STEELWORKERS OF AMERICA, LOCAL

890L,

 Defendant-Appellee.

X

-

-

-

-

>

,

-

-

-

-

N

No. 09-4460

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 08-02957—Jack Zouhary, District Judge.

Argued: April 27, 2011

Decided and Filed: September 9, 2011 

Before: COLE and STRANCH, Circuit Judges; ZATKOFF, District Judge.*

_________________

COUNSEL

ARGUED: Heidi N. Eischen, EASTMAN & SMITH LTD., Toledo, Ohio, for

Appellant. Daniel M. Kovalik, UNITED STEELWORKERS OF AMERICA,

Pittsburgh, Pennsylvania, for Appellee. ON BRIEF: Thomas A. Dixon, Nicole A.

Flynn, EASTMAN & SMITH LTD., Toledo, Ohio, for Appellant. Daniel M. Kovalik,

Katharine Shaw, UNITED STEELWORKERS OF AMERICA, Pittsburgh,

Pennsylvania, for Appellee. 

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. Plaintiff-Appellant Titan Tire Corporation

of Bryan appeals from the district court’s summary judgment in favor of Defendant1
No. 09-4460 Titan Tire Corp. of Bryan v. United Steelworkers

of Am., Local 890L

Page 2

Appellee United Steelworkers of America, Local 890L. Titan challenges the district

court’s refusal to vacate a labor arbitration award finding that Titan lacked just cause to

terminate Linda Tracy, a Titan employee and Union member. For the following reasons,

we AFFIRM the judgment of the district court.

I. BACKGROUND

On March 8, 2008, Linda Tracy injured her wrist as a result of an equipment

malfunction while performing her job at Titan. She was sent to the hospital for

treatment. While there, she was tested for drugs in accordance with the drug policy

originally negotiated between the Union and Titan’s predecessor, Continental General

Tire, Inc., and later adopted by Titan in a letter of understanding attached to the parties’

collective bargaining agreement (“CBA”). Tracy tested positive for marijuana use, and

was subsequently terminated by Titan based exclusively on the positive test result.

The Union grieved the termination, arguing that it was excessive and unjust. The

parties submitted the dispute to arbitration pursuant to the CBA. Before the arbitrator,

the Union argued that there was no just cause for the termination because neither Titan

nor Continental had provided its employees, including Tracy, advance notice of the drug

policy and the consequences for testing positive, as was required under the policy.

Titan, on the other hand, claimed that there was just cause for Tracy’s termination given

language in the drug policy stating that individuals who test positive are “subject to

termination,” which Titan interpreted as providing for automatic termination.

After conducting an evidentiary hearing, the arbitrator sustained the Union’s

grievance on October 16, 2008. The arbitrator concluded that Titan lacked just cause to

terminate Tracy because Tracy—a nine-year and otherwise “satisfactory”

employee—was not given adequate advance notice of the drug policy and the

consequences for violating it as required by Section V of the policy. Although the

arbitrator found Titan’s interpretation of the “subject to termination” language in the

drug policy to be “intellectually inviting,” he ultimately rejected Titan’s argument that

“subject to termination” means automatic termination. His conclusion was partially
No. 09-4460 Titan Tire Corp. of Bryan v. United Steelworkers

of Am., Local 890L

Page 3

based on evidence that the pertinent language was a compromise between Continental

and the Union. During negotiations, Continental apparently proposed the language “will

be terminated,” but Union negotiators successfully had it changed to “subject to

termination,” so that it would not provide for automatic termination. The arbitrator

concluded that though Titan was unaware that “subject to termination” was a

compromise, it still adopted bargaining intent when it accepted the existing drug

program. Finding that Tracy’s summary discharge did not adhere to just cause criteria,

the arbitrator modified her termination to a ninety-day suspension and reinstated her to

work with backpay. He also authorized Titan to subject Tracy to unannounced random

drug testing for one year after her reinstatement.

On December 19, 2008, Titan filed this action in the Northern District of Ohio,

asking the district court to vacate the arbitrator’s award. The parties filed cross motions

for summary judgment and the district court held a hearing on the matter. Titan’s

primary contention before the district court was that the arbitrator violated Article 19.04

of the CBA by relying on the negotiating history between Continental and the Union in

construing the phrase “subject to termination.” Among other things, Article 19.04

provides that Titan is not bound by any “oral representations with any previous employer

regarding . . . the Agreements . . . or past practices . . . unless specifically adopted by

[Titan] in writing.” It also requires the Union to give Titan thirty days advance notice

before introducing in an arbitration proceeding evidence of the negotiating parties’ intent

at the bargaining table.

On October 26, 2009, the district court granted the Union’s motion and denied

Titan’s motion. Recognizing that a court must enforce an arbitration award if the

arbitrator even arguably construed or applied the contract, the court affirmed the

arbitrator’s award because it was “indisputable that the arbitrator was construing and

applying” the particular provisions of the CBA “relevant to the just cause standard, as

well as the ‘subject to termination’ language that is the subject of the parties’ dispute.”

Furthermore, the court concluded that even if citing the negotiating history between

Continental and the Union was error, such error was harmless, because the language of
No. 09-4460 Titan Tire Corp. of Bryan v. United Steelworkers

of Am., Local 890L

Page 4

1

See United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 596–97 (1960)

(federal courts are not to “review the merits of an arbitration award,” but only determine whether the award

“draws its essence from the collective bargaining agreement”); United Steelworkers of Am. v. Warrior &

Gulf Navigation Co., 363 U.S. 574, 582–83 (1960) (holding that “[a]n order to arbitrate [a] particular

grievance should not be denied unless it may be said with positive assurance that the arbitration clause is

not susceptible of an interpretation that covers the asserted dispute”); United Steelworkers of Am. v. Am.

Mfg. Co., 363 U.S. 564, 568 (1960) (holding that the underlying “question of contract interpretation is for

the arbitrator” and “[t]he courts . . . have no business weighing the merits of the grievance”).

the CBA alone could justify the arbitrator’s conclusion. According to the district court,

the plain meaning of “subject to termination” indicates that permanent discharge is “an

option” for employees who test positive for drugs, but it is not automatic. Titan filed this

timely appeal.

II. ANALYSIS

A. Standard of Review

“This Court reviews a district court’s grant of summary judgment in a labor

arbitration dispute de novo.” Totes Isotoner Corp. v. Int’l Chem. Workers Union

Council/UFCW Local 664C, 532 F.3d 405, 410 (6th Cir. 2008). “In a situation such as

this, where we are reviewing de novo the district court’s decision to [enforce or] vacate

an arbitrator’s award, the focus is on the arbitrator’s analysis, not that of the district

court.” Truck Drivers Local No. 164 v. Allied Waste Sys., Inc., 512 F.3d 211, 216 (6th

Cir. 2008).

B. Limited Judicial Review of Labor-Arbitration Decisions

Federal labor arbitration case law is shaped largely by the strong congressional

policy encouraging the resolution of labor disputes through arbitration procedures

selected by the parties. Section 203(d) of the Labor Management Relations Act

provides, “[f]inal adjustment by a method agreed upon by the parties is declared to be

the desirable method for settlement of grievance disputes arising over the application or

interpretation of an existing collective-bargaining agreement.” 29 U.S.C. § 173(d). The

seminal Supreme Court instruction on this national policy is found in the Steelworkers

Trilogy,1

 three cases simultaneously decided in 1960. Their key lesson is that the
No. 09-4460 Titan Tire Corp. of Bryan v. United Steelworkers

of Am., Local 890L

Page 5

2

Nor can the judiciary deliver the speedy resolution of disputes envisioned by the grievance

procedure, particularly in light of the overwhelming number of grievances processed under CBAs.

judiciary shall defer to the method selected by the parties to settle their differences,

usually a grievance procedure culminating in final and binding arbitration.

Such judicial deference is grounded in the unique realities of workplace

governance through collective bargaining agreements. While commercial contracts

deem resort to courts or arbitration as a “breakdown in the working relationship of the

parties,”

the grievance machinery under a collective bargaining agreement is at the

very heart of the system of industrial self-government. Arbitration is the

means of solving the unforeseeable by molding a system of private law

for all the problems which may arise and to provide for their solution in

a way which will generally accord with the variant needs and desires of

the parties.

Warrior &Gulf Navigation Co., 363 U.S. at 581. Thus, arbitration is most commonly

the final method agreed upon by the parties to settle workplace disagreements.

Arbitration is the negotiated substitute for industrial strife. See id. at 578.

To achieve the twin goals of industry stabilization and industrial peace, see id.

at 578–79, these negotiated systems of private law provide for implementation, not by

judicial opinion, but by the decisions of a labor arbitrator knowledgeable in that industry.

Such arbitrators commonly are not attorneys and the agreements they interpret and

enforce are often the product of laymen. Their guiding principle is not contract law or,

for that matter, any case law; it is the CBA and the common law of the shop. The

practical reality is that the arbitrator “performs functions which are not normal to the

courts” and “[t]he ablest judge cannot be expected to bring the same experience and

competence to bear upon the determination of a grievance, because he cannot be

similarly informed.”2 Id. at 581–82. Recognizing the unique nature of these systems of

industrial self-government, Congress and the courts have enforced the bargain struck by
No. 09-4460 Titan Tire Corp. of Bryan v. United Steelworkers

of Am., Local 890L

Page 6

the parties, they have entrusted the resolution of workplace disputes to arbitrators and

have strictly circumscribed the role of the judiciary.

“[W]e afford great deference to the arbitrator’s decision,” Equitable Res., Inc. v.

United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers

Int’l Union, AFL-CIO/CLC, 621 F.3d 538, 545 (6th Cir. 2010), because the underlying

“question of contract interpretation [is] for the arbitrator,” Am. Mfg. Co., 363 U.S. at

568. The parties bargained for the arbitrator’s judgment and “all that it connotes” and

“[t]he courts, therefore, have no business weighing the merits of the grievance,

considering whether there is equity in a particular claim, or determining whether there

is particular language in the written instrument which will support the claim.” Id.

(internal footnote omitted). “[I]f an arbitrator is even arguably construing or applying

the contract and acting within the scope of his authority, the fact that a court is

convinced he committed serious error does not suffice to overturn his decision.” Major

League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001) (internal quotations

marks omitted).

In Michigan Family Resources, Inc. v. Service Employees International Union

Local 517M, 475 F.3d 746 (6th Cir. 2007) (en banc), we surveyed Supreme Court case

law that reviewed labor-arbitration awards and articulated national labor policy. We

concluded that our inquiry in such cases is confined to ascertaining whether there was

a “procedural aberration” in the arbitration process. Id. at 753. In doing so, we ask three

questions:

[1] Did the arbitrator act outside his authority by resolving a dispute not

committed to arbitration? [2] Did the arbitrator commit fraud, have a

conflict of interest or otherwise act dishonestly in issuing the award?

[3] And in resolving any legal or factual disputes in the case, was the

arbitrator arguably construing or applying the contract?

Id. (internal quotation marks omitted). If the arbitrator “does not offend any of these

requirements, the request for judicial intervention should be resisted even though the

arbitrator made serious, improvident or silly errors in resolving the merits of the

dispute.” Id. (internal quotation marks omitted).
No. 09-4460 Titan Tire Corp. of Bryan v. United Steelworkers

of Am., Local 890L

Page 7

3

We find no record of Titan presenting its Article 19.04 argument to the arbitrator. In fact, the

arbitrator expressly found that Titan neither challenged nor refuted the bargaining-history evidence.

Although arguments not presented to an arbitrator generally cannot be raised for the first time on review

in federal court, see, e.g., Armco Employees Ind. Fed’n, Inc. v. AK Steel Corp., 149 F. App’x 347, 352 (6th

Cir. 2005), we need not consider whether Titan adequately preserved its Article 19.04 argument because,

even assuming it did, we are not persuaded by the merits of the argument.

C. Arbitrator’s Construction of the Titan-Union CBA

Titan and the Union jointly submitted the just-cause question to the arbitrator

pursuant to the CBA, and Titan does not allege that the arbitrator acted with fraud, a

conflict of interest, or dishonesty in issuing his decision. Consequently, the first and

second questions posed by Michigan Family Resources are not implicated in this appeal.

The only issue is whether, in making the just-cause determination, the arbitrator arguably

construed or applied the contract. Id. Titan primarily contends that the arbitrator did not

do so because, in construing the “subject to termination” clause, he considered evidence

of bargaining history in violation of Article 19.04 of the CBA.3

Titan’s argument is foreclosed by this Court’s en banc decision in Michigan

Family Resources. At issue in Michigan Family Resources was an arbitrator’s

construction of ambiguous language contained in a collective bargaining agreement. In

construing the language in favor of the union, the arbitrator considered evidence of past

practices between the parties, despite a provision in the agreement prohibiting the use

of such evidence to bind the parties. 475 F.3d at 749–50. This Court rejected the

employer’s challenge to the arbitrator’s decision. We began by reiterating that the only

question presented was whether the arbitrator even arguably construed or applied the

contract in reaching its decision. Id. at 752 (internal quotation marks omitted). We

recognized that “in most cases, it will suffice to enforce the award that the arbitrator

appeared to be engaged in interpretation, and if there is doubt we will presume that the

arbitrator was doing just that.” Id. at 753 (emphasis added). There we concluded that

the arbitrator’s opinion had “all the hallmarks of interpretation” without any indication

that the arbitrator was doing anything other than trying “to reach a good-faith

interpretation of the contract.” Id. at 754.
No. 09-4460 Titan Tire Corp. of Bryan v. United Steelworkers

of Am., Local 890L

Page 8

This Court acknowledged, however, that “[a]n interpretation of a contract . . .

could be so untethered to the terms of the agreement . . . that it would cast doubt on

whether the arbitrator indeed was engaged in interpretation.” Id. at 753 (internal

quotation marks omitted). But we rejected the argument that the arbitrator’s

interpretative errors, including its reliance on evidence of past practices arguably in

violation of the parties’ CBA, satisfied this standard. The ambiguity in the contract

“permitted, indeed required, the arbitrator to engage in construction of the agreement,

which is all [the Court is] asked to determine.” Id. at 755. “[W]e review outcomes, not

opinions, while performing the exceedingly deferential task of considering whether to

vacate an arbitration award.” Id. The fact that the arbitrator may have chosen the

“wrong path in justifying the award” does not give us a “warrant to vacate it.” Id.

In the present case, the arbitrator interpreted the drug policy to require Titan to

warn employees about discipline for positive drug tests. Section V of the policy

specifically requires that employees be informed of the “[c]onsequences for . . . a

positive controlled substances test.” In light of Titan’s failure to provide its employees

such notice, the arbitrator concluded that Titan lacked just cause to terminate Tracy

based entirely on her positive drug test. There is no indication in the arbitrator’s twentyfour-page opinion reaching this conclusion that he “was doing anything other than trying

to reach a good-faith interpretation of the contract.” Mich. Family Res., 475 F.3d at 754.

Moreover, it cannot be “said that the arbitrator’s decision on the merits was so

untethered from the agreement that it casts doubt on whether he was engaged in

interpretation, as opposed to the implementation of his ‘own brand of industrial justice.’”

Id. (quoting Enter. Wheel & Car Corp., 363 U.S. at 597). To establish the arbitrator’s

error, Titan relies on the “subject to termination” language contained in the drug policy,

which it interprets as providing for automatic termination. The “subject to termination”

language, however, is at best ambiguous, and its plain meaning actually cuts against

Titan’s argument—it indicates that an employee might be discharged for testing positive,

but not automatically so. This language certainly does not demonstrate that the arbitrator
No. 09-4460 Titan Tire Corp. of Bryan v. United Steelworkers

of Am., Local 890L

Page 9

grossly deviated from the CBA and rendered his “own brand of industrial justice” in

construing the provision in the Union’s favor. Id.

Titan challenges the arbitrator’s reliance on evidence of bargaining history

between the Union and Continental in construing the “subject to termination” language.

It contends that Article 19.04 of the CBA prohibited the arbitrator from relying on such

evidence. It is questionable whether Article 19.04, which concerns oral representations

and intent evidence, even applies to the exchange of proposed written contract

provisions, the bargaining-history evidence relied upon by the arbitrator. But even

assuming that it does, such an error would not establish that the arbitrator’s decision

“was so untethered from the agreement that it casts doubt on whether he was engaged

in interpretation.” Mich. Family Res., 475 F.3d at 754. As explained above, the

arbitrator made a good-faith attempt to interpret the just-cause and subject-to-termination

provisions, and a reasonable construction of the pertinent language supports the

arbitrator’s interpretation.

As we held in Michigan Family Resources, the fact that the arbitrator may have

erred by choosing “the wrong path in justifying the award . . . does not give us a warrant

to vacate it.” Id. at 755. The outcome reached by the arbitrator was based on his

interpretation of the relevant contractual language, which is all we are asked to

determine in conducting our “exceedingly deferential,” id., and “very limited,” Garvey,

532 U.S. at 509, review of the arbitrator’s decision.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of summary

judgment for the Union.