United States Court of Appeals

For the Eighth Circuit

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No. 12-2229

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Midwest Division - LSH, LLC, doing business as Lee's Summit Medical Center

lllllllllllllllllllll Plaintiff - Appellant

v.

Nurses United For Improved Patient Care, CNA/NNOC

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: February 14, 2013

 Filed: July 2, 2013

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Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

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LOKEN, Circuit Judge.

Lee’s Summit Medical Center (“the Hospital”) terminated registered nurse

Gwynn Pirnie after receiving a complaint that she did not give prompt attention to a

person seeking emergency roomcare. Nurses United for Improved Patient Care (“the

Union”) filed a grievance on Pirnie’s behalf under its collective bargaining agreement

with the Hospital (the “CBA”), alleging the Hospital lacked “just cause” to terminate. 

Unable to resolve the grievance, the Hospital and Union submitted the following
issues for binding arbitration under Article 10 of the CBA: “whether [the Hospital]

had just cause to terminate [Pirnie]? If not, what shall the remedy be?” Nearly one

year after Pirnie’s discharge, and two weeks before the arbitration hearing, the

National Labor Relations Board (“NLRB”) decertified the Union after it disclaimed

interest in continuing to represent Pirnie’s bargaining unit. The parties nonetheless

proceeded with the hearing, stipulating that the matter was properly before the

arbitrator for decision. 

Following the hearing, the arbitrator issued his final decision, concluding the

Hospital lacked just cause to terminate and ordering that Pirnie be reinstated with

back-pay from the date of termination to the date of reinstatement. The Hospital filed

this declaratory judgment action under Section 301(c) of the Labor Management

Relations Act, 29 U.S.C. § 185(c), seeking to vacate the arbitration award to the

extent it ordered reinstatement and back-pay beyond the Union’s decertification. The

Hospital appeals the district court’s grant of summary judgment confirming the

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arbitration award. Applying the limited standard of review governing suits to vacate

labor arbitration awards, we affirm. See United Paperworkers Int’l Union v. Misco,

Inc., 484 U.S. 29, 38 (1987) (“as long as the arbitrator is even arguably construing or

applying the [CBA] and acting within the scope of his authority, that a court is

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

1. Because the merits of an arbitrator’s decision are virtually unreviewable in

an action to vacate his award, the Hospital argues only that the arbitrator exceeded his

authority by ordering a remedy that extended beyond the date of the Union’s

decertification. An arbitrator’s authority derives from and is limited by the CBA. 

“Histask islimited to construing the meaning of the collective-bargaining agreement

so as to effectuate the collective intent of the parties.” Barrentine v. Ark.-Best

Freight Sys., Inc., 450 U.S. 728, 744 (1981), citing Alexander v. Gardner-Denver Co.,

The Honorable Scott O. Wright, United States District Judge for the Western 1

District of Missouri. 

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415 U.S. 36, 53 (1974). Beyond question, an arbitrator may award reinstatement and

back-pay that includes a period after the governing CBA expired, so long as the

arbitrator in fashioning this remedy was interpreting and applying the CBA, and not

simply “dispens[ing] his own brand of industrial justice.” United Steelworkers v.

Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960); see Van Waters & Rogers,

Inc. v. Int’l Bhd. of Teamsters, 56 F.3d 1132, 1136-37 (9th Cir. 1995). 

In this case, the CBA expressly authorized arbitration of “matters which arose

prior to the time of expiration of the Agreement,” such as Pirnie’s termination. 

Article 10, Section 6.D. Consistent with this provision, the arbitrator conducted an

evidentiary hearing and authored a fifty-page opinion, concluding, “Just cause for

discipline is a contract right that . . . survived the NLRB order.” The CBA expressly

granted authority to make that decision. Moreover, the parties submitted the dispute

for final determination by the arbitrator after the Union was decertified, stipulating

that the issues to be resolved were whether the Hospital had just cause to terminate,

and if not, what the appropriate remedy would be. “[W]e will not give credence to

[the Hospital’s] argument that the arbitrator had no authority to decide an issue it

agreed to submit.” Homestake MiningCo. v. United Steelworkers, 153 F.3d 678, 680

(8th Cir. 1998) (quotations omitted). And when the parties stipulated that the issues

submitted to an arbitrator included, “what shall the remedy be,” the Hospital can

hardly argue that the arbitrator “acted outside his authority” in fashioning a remedy,

unless that remedy was expressly prohibited by the CBA. Amalgamated Transit

Union Local No. 1498 v. Jefferson Partners, 229 F.3d 1198, 1200-01 (8th Cir. 2000). 

Of course, an arbitrator may not ignore persuasive evidence that a particular

remedy was considered and “explicitly rejected” in negotiating the CBA. See Bureau

of Engraving, Inc. v. Graphic Commc’n Int’l Union Local 1B, 164 F.3d 427, 430 (8th

Cir.), cert. denied, 528 U.S. 821 (1999). But reinstatement and back-pay are

universally accepted labor arbitration remedies; therefore, limitations on thisremedial

power will not be lightly implied. “When an arbitrator is commissioned to interpret

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and apply the collective bargaining agreement, he is to bring his informed judgment

to bear in order to reach a fair solution of a problem. This is especially true when it

comes to formulating remedies.” Enterprise Wheel, 363 U.S. at 597. As the Ninth

Circuit explained in ILWU Local 142 v. Land & Construction Co., 498 F.2d 201, 204

(9th Cir. 1974), when there is no provision in the CBA limiting back-pay to a period

ending with its expiration, “[i]t follows that the arbitrator was faithful to the [CBA]

in holding that its termination neither ousted him of jurisdiction to arbitrate nor

limited back pay to that accruable to the date of termination.”

2. The Hospital argues that these general principles do not apply because the

CBA did not simply expire, it was “voided” when the NLRB decertified the Union. 

We reject this contention. The Hospital cites no NLRB decisions or rulings giving

this effect to decertification, and we are confident the Board did not intend that its

decertification would nullify grievance and arbitration proceedings pending under the

Union’s CBA. Cf. Union Switch & Signal, 316 N.L.R.B. 1025, 1036 (1995). In our

view, so long as the governing CBA authorizes -- in other words, does not prohibit --

post-expiration remedies for pre-expiration grievances, the manner in which the CBA

expires has no effect on the arbitrator’s authority. 

3. In arguing that the arbitrator exceeded his authority, the Hospital relies on

Second and Fifth Circuit cases in which collective bargaining agreements expired

after arbitrators had ordered reinstatement and back-pay. Emphasizing that the

arbitrators had no opportunity to consider this relevant change in circumstances, the

courts limited the arbitrators’ back-pay remedy to the date of expiration. See Int’l

Chem. Workers Union, Local No. 227 v. BASF Wyandotte Corp., 774 F.2d 43, 45-46

(2d Cir. 1985); Pioneer Natural Res. USA, Inc. v. Paper, Allied Indus. Chem. &

Energy Workers Int’l Union Local 4-487, 338 F.3d 440, 441-42 (5th Cir.), amending

328 F.3d 818 (5th Cir. 2003). Those decisions did not question the arbitrators’

authority to make the awards being reviewed. They simply limited judicial

enforcement of the arbitrators’ remedies based upon post-arbitration circumstances,

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decisions reflecting the equitable principle “that a sound judicial discretion may call

for the modification of the terms of an injunctive decree if the circumstances, whether

of law or fact, obtaining at the time of its issuance have changed, or new ones have

since arisen.” Sys. Fed’n No. 91 v. Wright, 364 U.S. 642, 647 (1961). Here, the

circumstances of the Union’s decertification and the CBA’s expiration were known

to, and expressly considered by the arbitrator in making his award.

4. The Hospital further argues that Pirnie lost all CBA job protections

following the Union’s decertification. Therefore, as an at-will employee, Pirnie may

not be reinstated and awarded back-pay after decertification because that would put

her in a position superior to others in the bargaining unit. Of course, this is an attack

on the fairness of the arbitrator’s remedy, not on his authority. Moreover, it assumes

evidence not in the record. The Hospital presented no evidence to the arbitrator

regarding the practical effect of union decertification on members of the bargaining

unit. For example, there was no evidence that, following the CBA’s expiration, the

Hospital unilaterally changed the terms and conditions of employment to an at-will

relationship. Nor was there evidence that Pirnie would have been discharged on the

day after expiration if the arbitration had proceeded more expeditiously and she had

been reinstated before the CBA expired. It may be that an arbitrator would be

“dispens[ing] his own brand of industrial justice” if he ignored such evidence, or

evidence that the CBA expired because poor business conditions eliminated the job

of a grievant seeking full reinstatement and back-pay, the fact situation in United

Steelworkers v. Overly Mfg. Co., 438 F. Supp. 922, 927 (W.D. Pa. 1977). We

express no view on those issues. Rather, we conclude that, on the record before the

arbitrator in this case, there is simply no basis to conclude that the arbitrator’s

exercise of his remedial authority failed to “draw its essence” from the CBA. 

Enterprise Wheel, 363 U.S. at 597. 

The judgment of the district court is affirmed. 

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