RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0046p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ZEON CHEMICALS, L.P.,

Plaintiff-Appellee,

v.

UNITED FOOD AND COMMERCIAL WORKERS, LOCAL

72D,

Defendant-Appellant.

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No. 19-5703

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 3:18-cv-00376—Gregory N. Stivers, Chief District Judge.

Argued: January 31, 2020

Decided and Filed: February 13, 2020

Before: SUTTON, BUSH, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Michael J. Wall, BRANSTETTER, STRANCH & JENNINGS, PLLC, Nashville, 

Tennessee, for Appellant. Catherine F. Burgett, FROST BROWN TODD LLC, Columbus, 

Ohio, for Appellee. ON BRIEF: Michael J. Wall, BRANSTETTER, STRANCH & 

JENNINGS, PLLC, Nashville, Tennessee, David O’Brien Suetholz, BRANSTETTER, 

STRANCH & JENNINGS, PLLC, Louisville, Kentucky, Pamela M. Newport, BRANSTETTER, 

STRANCH & JENNINGS, PLLC, Cincinnati, Ohio, for Appellant. Catherine F. Burgett, 

FROST BROWN TODD LLC, Columbus, Ohio, Richard S. Cleary, FROST BROWN TODD 

LLC, Louisville, Kentucky, for Appellee.

>
No. 19-5703 Zeon Chems. v. United Food & Commercial Workers Page 2

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OPINION

_________________

SUTTON, Circuit Judge. Zeon Chemicals fired James Jenkins on the ground that he 

violated the company’s attendance policy. Consistent with the collective bargaining agreement, 

the local union took Jenkins’ discharge to arbitration. The arbitrator reinstated Jenkins. Zeon 

challenged the award in federal court, and the district court vacated the award. We reverse.

I.

Zeon Chemicals runs a synthetic components plant in Louisville, Kentucky. Local 72D 

of the United Food and Commercial Workers Union represents some of the employees who work 

there. Under the collective bargaining agreement, the company retained the right to “discharge 

and discipline” employees for “just cause.” R.1-2 at 7. The parties agreed to arbitrate any 

grievances “not satisfactorily resolved” between the company and the union. Id. at 17. 

The agreement includes an attendance policy. Each time an employee misses or reports 

late for a shift, he receives points. Accruing six points in twelve months leads to a verbal 

warning, eight to a written warning. At ten points, the company issues its final written warning 

and a one-day suspension. For “employees with 20 years of service,” the company may impose 

a thirty-day suspension as “a final step in the disciplinary process for employees” who reach the 

ten-point threshold. Id. at 53. Once a worker receives twelve points, that is “cause for 

termination.” Id.

James Jenkins worked at the plant for twenty-two years. In 2017, while on a family 

vacation in Florida, his father asked him to retrieve a “grinder” from a neighbor. R.18-2 at 40. 

As Jenkins tells it, he and the neighbor began arguing after Jenkins asked for the tool. The 

neighbor eventually threw the grinder at Jenkins. When Jenkins tried to pick it up, the neighbor 

hit Jenkins in the face. To defend himself, Jenkins pulled out a “selfie stick” and hit the 

neighbor. Id. Retreating to his garage, the neighbor retrieved a crowbar and renewed his attack 

on Jenkins. Outmetaled, Jenkins fled to his father’s home. 
No. 19-5703 Zeon Chems. v. United Food & Commercial Workers Page 3

Jenkins declined to press charges. His neighbor did not extend the same courtesy. 

Jenkins pleaded guilty to felony battery, leading to a thirty-day sentence. 

Before beginning his sentence, Jenkins met with his union representative and the 

company to find a way to keep his job. The felony conviction was not Jenkins’ only problem. 

He had already accrued eight and a half points under the attendance policy that year, and the 

thirty-day sentence would cross the twelve-point threshold. Jenkins looked for ways to cover the 

days, but the company rejected each proposal. The company refused to suspend him for thirty 

days, something his twenty-two years of service made him eligible for, because it did not want to 

send the message that employees could commit crimes without consequences. And it declined to 

let him use vacation days for the time because other employees had already scheduled their days 

for the relevant weeks. Jenkins reported to jail and lost his job. 

Local 72D grieved his discharge, which led to arbitration. The parties selected Stephen 

L. Hayford to arbitrate the dispute. The arbitrator modified Jenkins’ discharge to a thirty-day 

suspension, reset his point total to eight and a half, and awarded Jenkins back pay. Both parties 

filed lawsuits in federal court—the company to vacate the award under the Labor Management 

Relations Act, the union to enforce it. 29 U.S.C. § 185(c). The district court vacated the award 

on the ground that the arbitrator misread the agreement and exceeded his authority in doing so. 

II.

Our review of arbitration awards is deferential, especially so when it comes to challenges 

to the merits of an arbitrator’s interpretation of the agreement. Mich. Family Res., Inc. v. Serv. 

Emps. Int’l Union Local 517M, 475 F.3d 746, 750–52 (6th Cir. 2007) (en banc). The focus tends 

toward a fair process, not substance, unless the substance of the interpretation is so off the wall 

that it makes implausible the idea that the arbitrator was engaged in interpretation in the first 

place. We generally leave the parties to what they bargained for—an arbitrator’s decision, not a 

court of appeals’ decision—unless the arbitrator (1) committed fraud or other dishonesty, 

(2) resolved a dispute the parties did not submit to him, or (3) did not arguably interpret and 

apply the collective bargaining agreement. Id. at 751–52. Neither one of the first two 

possibilities exists here. That means that, “[a]s long as the arbitrator is even arguably construing 
No. 19-5703 Zeon Chems. v. United Food & Commercial Workers Page 4

or applying the contract,” we will uphold the decision. United Paperworkers Int’l Union, AFLCIO v. Misco, Inc., 484 U.S. 29, 38 (1987). 

What violates this arguable-construction standard? An interpretation “so untethered” 

from the terms of the contract that it conveys a lack of “good-faith interpretation.” Mich. Family 

Res., 475 F.3d at 753–54 (quotation omitted). Even that will be the rare case, id. at 753, as 

arbitrators may make “improvident, even silly” decisions without justifying a reversal, id. at 752 

(quotation omitted). We tolerate these decisions in spite of their errors because, for better or 

worse, the parties “bargained for an arbitrator’s interpretation of the contract, not a federal 

judge’s.” Econ. Linen & Towel Serv., Inc. v. Int’l Bhd. of Teamsters, Teamsters Local Union

637, 917 F.3d 512, 513 (6th Cir. 2019).

Today’s decision clears this modest hurdle. As a matter of process, the twenty-four-page 

opinion bears all the “hallmarks of interpretation.” Mich. Family Res., 475 F.3d at 754. The 

arbitrator explained the background to the parties’ dispute and cited the relevant provisions of the 

agreement and the attendance policy. He explained how each party interpreted the agreement 

and proceeded to analyze the various provisions. He then evaluated how the agreement applied 

to this situation. Through it all, he seemed to be engaged in “a good-faith interpretation of the 

contract.” Id.

Although the arbitrator’s merits analysis has some eyesores, it does not defeat the 

conclusion that he arguably construed the contract. At stake is how the just-cause provision 

relates to the provision that twelve points is “cause for termination.” R.1-2 at 53. As the 

company sees it, reaching twelve points and “just cause” are one and the same. Once the 

employee crosses that threshold, says the company, that becomes just cause to fire him, no 

matter the circumstances. As the union sees it, the just-cause provision imposes a reasonableness 

requirement on the company. Even after an employee reaches twelve points, the company must 

justify a discharge decision. That’s especially so in cases like this one, where the employee has 

worked at least twenty years with the company and where the policy as a result permits the 

company to impose a thirty-day suspension in lieu of a discharge. Each position has a plausible 

feel to it. Our task is not to choose the best interpretation. Else, why have an arbitration clause? 
No. 19-5703 Zeon Chems. v. United Food & Commercial Workers Page 5

Why ask an arbitrator to decide a question as an alternative to litigation if a court can review that 

decision on the merits to identify the best answer?

Violating the policy, the arbitrator reasoned, creates “prima facie proof” for termination. 

R.1-3 at 17. But the agreement’s just-cause provision requires more than a “mechanical 

application.” Id. at 16. The company must consider the circumstances and, based on a 

consideration of the aggravating and mitigating factors, conclude that it had a reasonable basis to 

terminate the employee. Right or wrong, that’s not an implausible interpretation of the contract 

or of “just cause.” Titan Tire Corp. of Bryan v. United Steelworkers of Am., Local 890L, 656 

F.3d 368, 374 (6th Cir. 2011).

As for the arbitrator’s decision that the company lacked just cause to terminate Jenkins, 

that’s plausible too. Yes, Jenkins committed a crime worthy of a thirty-day sentence and already 

had missed several days of work that year. But no one disputes Jenkins’ explanation that the 

crime arose from a misunderstanding that got out of hand, he had worked for the company for 

twenty-two years, and the company had discretion to suspend him rather than fire him. We 

might have weighed these considerations differently had we been asked to resolve the dispute in 

the first instance. But the arbitrator’s choice does not enter the prohibited land of imposing “his 

own brand of industrial justice.” Mich. Family Res., 475 F.3d at 754 (quotation omitted).

In truth, other rulings by the arbitrator—that could have resolved the case in Jenkins’ 

favor—went against the union. The arbitrator rejected two outcome-dispositive grounds raised 

by the union: that the agreement required the company to provide Jenkins a thirty-day leave or 

allowed him to switch his vacation days. 

A comparison between this case and cases that required us to vacate an arbitration award 

supports this conclusion. In Totes Isotoner Corp., we vacated the award because the arbitrator 

relied on a different agreement from the one that governed the parties’ dispute. Totes Isotoner

Corp. v. Int’l Chem. Workers Union Council/UFCW Local 664C, 532 F.3d 405, 415–16 (6th Cir. 

2008). And in Peterbilt Motors, the arbitrator tried to require a company to pay healthcare 

benefits after an insurer, not bound by the collective bargaining agreement, denied an employee 
No. 19-5703 Zeon Chems. v. United Food & Commercial Workers Page 6

coverage based on its own eligibility requirements. Peterbilt Motors Co. v. UAW Int’l Union, 

219 F. App’x 434, 436–38 (6th Cir. 2007).

Today’s case by contrast falls into the large camp of cases—some for unions, some for 

companies—that uphold arbitration decisions rooted in the collective bargaining agreement. See, 

e.g., Titan Tire, 656 F.3d at 374; Royal Ice Cream Co. v. Teamsters Local No. 336, 506 F. App’x 

455, 457–58 (6th Cir. 2012); MGM Grand Detroit, LLC v. Int’l Union, United Auto., Aero. & 

Agric. Implement Workers of Am., 495 F. App’x 646, 649–51 (6th Cir. 2012); Earle v. Netjets 

Aviation Inc., 262 F. App’x 698, 701–02 (6th Cir. 2008) (per curiam). 

The company insists that this arbitration decision is so head snapping that it deserves 

reversal. But the cases invoked by the company do not back it up. Save for the ones already 

mentioned, the cited cases use the wrong standard of review and predate our en banc decision in 

Michigan Family Resources. See, e.g., Int’l Bhd. of Firemen & Oilers, AFL-CIO Local 

No.935-B v. Nestle Co., 630 F.2d 474, 477 (6th Cir. 1980).

The company claims that the arbitrator never should have relied on Jenkins’ testimony 

about his felony—and what led to the fight—after it objected to it during the hearing. But 

nothing in the agreement shows that the parties agreed to a set of procedures the arbitrator 

violated. The parties “bargained for arbitration to settle disputes and were free to set the 

procedural rules for arbitrators to follow if they chose.” Misco, 484 U.S. at 39. The company 

never included any set of fact-finding procedures for the arbitrator to follow. Nor did any 

unfairness result anyway. The company had ample opportunities to question Jenkins about the 

incident and to present evidence undermining his accounts. It opted not to do so.

The company separately criticizes four features of the arbitrator’s analysis that in its view 

leave the protected land of interpretation and enter the forbidden territory of unvarnished 

policymaking. How, the company asks, could someone interpret the attendance policy, which 

says reaching twelve points “is cause for termination,” to mean anything else? R.1-2 at 53. But 

when parties sign multiple agreements, it’s possible that one document—here the collective 

bargaining agreement—will control over another. See Titan Tire, 656 F.3d at 374. That this 
No. 19-5703 Zeon Chems. v. United Food & Commercial Workers Page 7

arbitrator interpreted the collective bargaining agreement to govern the attendance policy is not a 

reversible error; it’s just a plausible, if debatable, interpretation. Id.

Errors two and three train their sights on a similar target: that the arbitrator’s award 

imposed new requirements on the company nowhere found in the collective bargaining 

agreement. The company thinks the arbitrator erred when he faulted the company for not 

investigating the circumstances of Jenkins’ felony and for not considering a thirty-day 

suspension instead of a termination. But these arguments overlook the context in which the 

arbitrator reached these conclusions. He merely explained what “just cause” entailed. To the 

arbitrator, it meant investigating the circumstances that caused Jenkins to cross the twelve-point 

threshold and considering a suspension instead of a discharge. We have said before that 

arbitrators who interpret “just cause” to require reasonable punishment or some kind of process 

prior to discharge do not necessarily commit a reversible error. See Titan Tire, 656 F.3d at 374;

MGM Grand Detroit, 495 F. App’x at 650; Royal Ice Cream, 506 F. App’x at 457.

A company wary of that option may clarify that “just cause” does not permit it. Had the 

company clarified two features of this agreement, we do not see how the arbitrator could have 

plausibly contradicted them. The company might have spelled out any authority to suspend an

employee with more than twenty years of service for thirty days was a purely discretionary 

decision left solely to the company’s judgment. And it might have spelled out in the words of 

the agreement that the company has sole discretion to discharge anyone who reaches twelve 

points under the attendance policy without regard to fault and without regard to any other 

considerations. Had the agreement said as much, it’s difficult to see how a court could uphold 

such a text-defying arbitration decision.

Error four, the most serious of the quartet, concerns the arbitrator’s references to the 

“substantive due process guarantee integral in the contractual just cause provision.” R.1-3 at 22. 

It was precisely this aspect of the arbitrator’s decision that the district court could not overlook 

and, we must emphasize, bothers us too. Substantive due process is a constitutional doctrine 

used to determine the validity of public laws, not to determine the meaning of a private contract. 

It’s enough that federal law permits judges to read free-flowing substantive limitations into a 
No. 19-5703 Zeon Chems. v. United Food & Commercial Workers Page 8

procedural constitutional guarantee; why should we permit arbitrators to exacerbate the risk to 

fair decision making by reading unbounded considerations into the meaning of private contracts?

Think about the problem this way. Compare an arbitrator who flips a coin to decide who 

wins the case with an arbitrator who uses substantive due process to decide who wins the case. 

The arbitrator who uses the coin flip would not be engaged in interpretation, we can all agree, 

and a federal court would have to vacate such an arbitrary decision. But a compelling argument 

can be made that the arbitrator who uses substantive due process to decide who wins is the 

greater culprit when it comes to fair interpretation. At least the arbitrariness of the coin flip leads 

to neutral outcomes—decisions that do not run the risk of favoring companies or unions based on 

the policy predilections of the arbitrator. The same cannot be said of substantive due process. 

Ask yourself how often federal and state judges have used substantive due process over time to 

innovate new constitutional rights with which they disagreed. If history often runs in one 

direction on this score, that suggests the arbitrator who uses substantive due process represents a 

greater risk to fair interpretation than the referee who flips a coin. 

All of this explains why we, like the district court judge, cannot blithely dismiss a 

mistake of this sort to the kind of silly-but-permissible errors federal courts must tolerate. To the 

contrary, an arbitrator who uses substantive due process to interpret private contracts might just 

as well invoke the prohibited “brand of industrial justice,” an equally impermissible ground for 

decision. 

Even so, we do not think this decision must be vacated. For one, the reference to 

substantive due process was collateral to the arbitrator’s reasoning. For another, it’s not clear 

what the arbitrator meant. Was this a slip of the tongue or a peek under the veil? In context, the 

arbitrator seemed to be referring to process-driven considerations, something arbitrators have 

fairly considered before. The offending sentence occurs in the context of the requirement that 

“the Company make a full, fair[,] and informed determination of whether exercise of its 

discretion to impose a 30-day suspension in lieu of termination was justified.” Id. Our decisions 

have acknowledged the similarities between fair procedural considerations and just cause 

considerations. MGM Grand Detroit, 495 F. App’x at 649–50. All in all, while this decision 
No. 19-5703 Zeon Chems. v. United Food & Commercial Workers Page 9

clears the modest bar for reviewing the merits of an arbitrator’s interpretation of a contract, we 

must acknowledge that the arbitrator scraped it several times. 

One last point. Although Zeon’s objections fail to persuade us, we do not think its 

decision to litigate this case remotely warrants attorney’s fees. Fee awards are appropriate in 

“egregious cases of misconduct.” Jones v. Cont’l Corp., 789 F.2d 1225, 1232 (6th Cir. 1986). 

Local 72D offers no good explanation why Zeon’s conduct rises to that level. 

We reverse the district court’s judgment and remand the case to reinstate the arbitrator’s 

award.