* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 11 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
OKLAHOMA FIXTURE COMPANY, Plaintiff-Appellant,
v. LOCAL 942 INTERNATIONAL BROTHER-HOOD OF CARPENTERS AND JOINERS OF AMERICA, sued as: United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 943 and Mary Shirley, Defendants-Appellees. No. 97-5009 (D.C. No. 96-CV-216-B) (N.D. Okla.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , Circuit Judges. After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Oklahoma Fixture Company (OFC) appeals the districtcourt's denial of its motion for summary judgment and grant of summary ju dgment in favor of Mary Shirley and the United Brotherhood of Carpenters an d Joiners of America, AFLCIO, Local No. 943 (the Union).
On March 22, 1995, OFC terminated Ms. Shirley's emp loyment pursuant to Article 5.5(F) of the collective bargaining agreeme nt between it and the Union. Article 5.5(F) provides an employee shall lose his seniority rights, [w]ith the exception of lay-off, if he has performe d no work for the Company for a period of one hundred eighty (180) ca lendar days in a twelve (12) month period (the 180 calendar days doe s not mean consecutive days) without regard for the reason the employee has performed no work for the Company for such period. The Union filed a grievance on behalf of Ms. Shirle y which was submitted to arbitration pursuant to the collective bargaining a greement.
After a hearing and supplemental briefing, the arbi trator found in favor of Ms. Shirley. The arbitrator determined the 180-daylimit on missed work should not include days when OFC's plant was closed or vac ation days when no work could be done. The arbitrator calculated that if w eekends, holidays, and vacation were counted towards the 180-day limit, an employee could be terminated if she missed nine work weeks in the course of a twelve-mo nth period. The arbitrator-3-

found this conflicted with the twelve weeks of job- protected leave under the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (1994). The arbitrator then ordered Ms. Shirley reinstated with no loss in seni ority, if she produced a medical release to return to work.
On March 19, 1996, OFC filed this action requesting the arbitration award be vacated. On December 16, 1996, the district cou rt granted summary judgment in favor of Ms. Shirley and the Union finding no ba sis to overturn the arbitrator's award.
On appeal, OFC contends the arbitrator's award was based upon her interpretation of the FMLA, not the plain language of the collective bargaining agreement. OFC asserts the Arbitrator improperly applied her own brand of justice based on sympathy for Ms. Shirley and her r eading of the FMLA. OFC also argues there is no conflict between Article 5. 5(F) and the FMLA.
We review the district court's grant or denial of s ummary judgment de novo applying the same legal standard as the district co urt. NCR Corp., E & M-Wichita v. International Ass’n of Machinists & Aerospace Wo rkers, District Lodge No. 70 , 906 F.2d 1499, 1500 (10th Cir. 1990). The Federal Arbitration Act authorizes-4-

vacation of an arbitrator’s award "[w]here the arbi trators exceeded their powers, or so imperfectly executed them that a mutual, fina l, and definite award upon the subject matter submitted was not made." 9 U.S.C. § 10(a)(4) (1994). "An arbitrator's erroneous interpretations or applicati ons of law are not reversible." ARW Exploration Corp. v. Aguirre , 45 F.3d 1455, 1463 (10th Cir. 1995) (citing Wilko v. Swan , 346 U.S. 427, 436-37 (1953)). Only "manifest dis regard" of the law is reversible. Id . We will not vacate an arbitrator's award unless it is "so unfounded in reason and fact, so unconnected with t he wording and purpose of the ... agreement as to manifest an infidelity to t he obligation of the arbitrator that the essence of the award has not been drawn from th e [a]greement or that it violates the express language of the [a]greement." International Bhd. of Elec. Workers, Local Union No. 611, AFL-CIO v. Public Ser v. Co. of N.M. , 980 F.2d 616, 619 (10th Cir. 1992) (internal quotation marks and citations omitted).
Our independent review of the arbitrator’s decisionand award, in light of our settled standard of review, satisfies us that t he arbitrator here stayed well within her prescribed bounds of authority and the g overning law when she construed Article 5.5(F) to exclude days when OFC w as not open and there was no opportunity to work. At arbitration, OFC arguedthe language of Article 5.5(F) clearly states a "calendar day" is a simple twenty-four-hour day as-5-

established by the calendar, regardless of whether the plant is open for business or not. In contrast, Ms. Shirley and the Union assert ed a "calendar day" cannot include those days where the plant is not open for business since the purpose of having a worker present to do the job only makes se nse if the plant is open. In rejecting OFC's and accepting the Union's interpret ation of a "calendar day," the arbitrator found that "[t]o establish a policy thatwould run afoul of Federal law (leaving only nine five day work weeks as opposed t o 12 week of FMLA) doesn't make sense or lend itself to the company interpretation." We hold this decision is well within the arbitrator's authority and it draws its essence from the collective bargaining agreement between the parties.
Accordingly, we AFFIRM the district court's order of December 17, 1996.
Entered for the Court WADE BRORBY United States Circuit Judge