The Honorable Richard H. Battey, Chief Judge, United States District Court for 1 the District of South Dakota.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3123

___________ Homestake Mining Company, of * California, a California corporation, * * Appellant, * * Appeal from the United States v. * District Court for the * District of South Dakota. United Steelworkers of America, * AFL-CIO, AFL-CIO-CLC, Local 7044; * Stacy Oberle, * * Appellees. *

___________ Submitted: June 11, 1998 Filed: August 17, 1998

___________ Before BEAM, ROSS, and MAGILL, Circuit Judges.

___________ MAGILL, Circuit Judge.
Homestake Mining Company (Homestake) appeals from the district court's 1 denial of its motion to vacate a labor arbitration award that reinstated Stacy Oberle, a Homestake employee who was discharged for alleged safety violations. Homestake-2-

contends that the award failed to draw its essence from the collective bargainin g agree ment

and that the award should be set aside as contrary to public policy. W e affirm.
I.
Oberle was a welder in the maintenance department at the Homestake gold mine in Lead, South Dakota, where Oberle had worked in various positions for sixteen years. The relevant collective bargaining agreement authorized Homestake to discharg e employee s "for just cause," and incorporated by reference federal mine safety regulations as workplace safety rules in the mine. Collective Bargaining Agreement at 4, 36, reprinted inHomestake's App. at 54, 86.
On March 2 9, 1996, Oberle began constructing a metal cart to carry a fifty-five gallon barrel

of oil and other lubricants used in the mine. Oberle's welding bench was located approximately ten to twenty feet from the barrel, and the construction of the cart required Oberle to move frequent ly between the barrel and the welding bench to check his measurements. As the car t's frame was nearly completed, Oberle carried the frame over to the barrel to see if

the frame fit properly. While resting the frame on top of the barrel, Oberle tack welded two small corner pieces to the frame, and then returned the frame to his welding bench to weld those pieces permanently into place. A supervisor saw Oberle at work and instructed Oberle to refrain from using the barrel as a welding st and. Oberle complied. On April 2, 1996, Homestake suspended Oberle and charged him with violating two mine safety re gulations: (1) a welding safety
cu rtainregulation, requiring that "[w]elding operations shall be shielded whe n perfo rmed

at locations where arc flash could be hazardous to persons," 30 C.F.R. § 57.1421 3(a) (1995); and (2) a ventilation regulation, requiring proper ventilation an d clea ning "[b]efore welding, cutting, or applying heat with an open flame to . .

. containers that have contained flammable or combustible li quids." 30 C.F.R. § 57.4604-3-

(1995). Homestake assessed Oberle disciplinary "points" for each violation, puttin g Oberle over the limit beyond which he could be terminated. After an investigation , Oberle was terminated on April 4, 1996. Pursuant to the collective bargaining agreement, the parties sub mitted this dispute to a n arbitrator to determine whether Homestake had just cause to fire Oberle. Th e arb itrator held that Homestake's evidence was insufficient to prove that Oberle ha d violated th e welding curtain regulation. The arbitrator also held that Oberle had no t violatedthe ventilation regulation because "[t]he record in this hearing compels a finding that [Oberle] was not welding to the barrel. To the contrary, he was welding on the cart parts which he had positi oned on the barrel." Arbitrator's Decision and Award (Oct. 21, 1996) at 14, reprinted in Hom estake's App. at 19. Accordingly, the arbitrator held that Homestake did not have just cause to terminate Oberle and ordered Homestake to expunge the disciplinary points from his record and to reinstate Oberl e with back pay. The distr ict court denied Homestake's subsequent motion to vacate the award

. Homestake now appeals.
II.
The district court's denial of a motion to vacate an arbitration award is not entitled to any sp ecial deference on appeal, and this Court reviews its conclusions of law d e novo. Kiernan v. Piper Jaffray Cos. , 137 F.3d 588, 591 (8th Cir. 1998); Keebler Co. v. Mi lk Drivers & Dairy Employees Union, Local No. 471 , 80 F.3d 284, 287 n.2 (8th Cir. 1996). "The scope of judicial review of arbitration awards under collective

bargaining agreements is extremely limited," United Food and Commercial Workers v. Shop 'N Save Warehouse Foods, Inc. , 113 F.3d 893, 894 (8th Cir. 1997), and we will not "reconsider the merits of an award even though the parties may alle ge that the award rests on errors of fact or on misinterpretation of the contract." United Paperworkers Int'l Unionv. Misco, Inc. , 484 U.S. 29, 36 (1987). In other words, we "do not sit to hear claims of factual or legal error by an arbitrator as an appellate court-4-

does in reviewing decisions of lower courts." Id. at 38.
Homestake contends that, because the collective bargaining agreemen t em powered Homestake to discipline employees without subjecting its decision t o griev ance procedures, the arbitrator lacked the authority to resolve this dispute. W e disagree. An arbitrator's award must be enforced "as long as he is arguably construing
or a pplying the [collective bargaining agreement]" rather than "dispens[ing] his ow n brand o f industrial justice." Midwest Coca-Cola Bottling Co. v. Allied Sales Drivers, Local 792 , 89 F.3d 514, 517 (8th Cir. 1996). By requesting that the arbitr ator determine wh ether Homestake had just cause to discharge Oberle, both parties "confer[red ] authority upon the arbitrator to decide that issue," Local 238, Int'l Bhd. of Teamsters v. Cargill, Inc. , 66 F.3d 988, 990-91 (8th Cir. 1995) (per curiam) (emphasis omitted), and we will not give credence to Homestake's argument "that the arbitrator had no authority to decide an issue it agreed to submit." Id. at 991. Given that Homestake terminated Oberle for allegedly violating federal mine safety regulations that were incorporated into the mine's workplace safety rules, the arbitrator correctly addressed whether Oberle had in fact violated those rules. Moreover, to the extent that the collective bargainin g agreement

may have imposed conflicting requirements in this regard, "[h]armonizin g these discordant provisi ons was clearly a matter for the arbitrator." Cargill , 66 F.3d at 990. After careful consideration of Homestake's arguments, we conc lude that the award "draws its essence from the collective bargaining agreement," United Steelworkers v. Ent erprise Wheel & Car Corp. , 363 U.S. 593, 597 (1960), and that the arbitrato r th erefore did not exceed the scope of his authority under the collective bargainin g agreement in rendering this award.

Home stake further contends that enforcing the arbitrator's award would b e contra ry to both a general public policy in favor of mine safety and a specific publi c policy in favor of keeping flames away from combustible materials. Again, w e disagree. An arbitration award cannot be overturned on public policy grounds unless "it i s contrary to a well-defined and dominant policy embodied in laws and judicial-5-

precedent." PaineWebber, Inc. v. Agron , 49 F.3d 347, 350 (8th Cir. 1995) (quotations omitted). Even if we were to recognize the public policies as a rticulated by Homestake, "th e violation of such [policies] must be clearly shown if an award is not to b e enforced." Misco , 484 U.S. at 43. Homestake has not carried this burden. Th e arbitrator determined that Oberle did not violate the ventilation regulation because the regulati onprohibited welding to certain containers but did not prohibit welding upo n the m. The arbitrator's interpretation of this regulation's plain language is neithe r "completely irrational [nor] evidences a manifest disregard for law," Lee v. Chica , 983 F.2d 883, 885 (8th Cir. 1993) (quotations omitted), and is therefore "insulated fro m review." Stroh Container Co. v. Delphi Indus., Inc. , 7 83 F.2d 743, 750 (8th Cir. 1986). Although w e have expressed public policy concerns about an award that reinstated an employee despite a finding that the employee grossly and deliberately viol ated important safety regulations, see Iowa El ec. Light & Power Co. v. Local Union 204, Int'l Bhd. of Elec. Workers , 834 F.2d 1424, 1429-30 (8th Cir. 1987), in the absence of such a finding here, no similar concerns arise. Thus, the award "does no clear violence to the public polic[ies]" Homestake has asserted, Alvey, Inc. v. Teamsters Local Union No. 688 , 132 F.3d 1209, 1212 (8th C ir. 1997), and we will not set it aside on public policy grounds. Accordingly, we affirm the district court's denial of Homestake's motion to vacate the arb itration award. The appellees' motion for attorneys' fees and double costs i s denied. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.