PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PPG INDUSTRIES, INCORPORATED, 

Plaintiff-Appellee,

v.

INTERNATIONAL CHEMICAL WORKERS

UNION COUNCIL OF THE UNITED  No. 08-2180 FOOD AND COMMERCIAL WORKERS;

INTERNATIONAL CHEMICAL WORKERS

UNION COUNCIL OF THE UNITED

FOOD AND COMMERCIAL WORKERS,

LOCAL UNION NO. 45C,

Defendants-Appellants. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Jr., Senior District Judge.

(5:07-cv-00085-FPS)

Argued: September 30, 2009

Decided: November 20, 2009

Before MOTZ and DUNCAN, Circuit Judges, and

Cameron McGowan CURRIE, United States District Judge

for the District of South Carolina, sitting by designation.

Reversed and remanded by published opinion. Judge Motz

wrote the opinion, in which Judge Duncan and Judge Currie

joined.
COUNSEL

ARGUED: August Randall Vehar, ICWUC/UFCW LEGAL

DEPARTMENT, Akron, Ohio, for Appellants. C. David Morrison, STEPTOE & JOHNSON, LLP, Clarksburg, West Virginia, for Appellee. ON BRIEF: Robert W. Lowrey, UFCW

Assistant General Counsel, ICWUC/UFCW LEGAL

DEPARTMENT, Akron, Ohio; Tim Cogan, CASSIDY,

MYERS, COGAN & VOEGELIN, LC, Wheeling, West Virginia, for Appellants. Carolyn A. Wade, Jill Oliverio Florio,

STEPTOE & JOHNSON, LLP, Clarksburg, West Virginia,

for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

A reviewing court must defer to an arbitrator’s construction

of a contract even when the court believes that the arbitrator

construed the contract incorrectly. In this case, the district

court vacated the arbitration award, concluding that the arbitrator exceeded his authority by adding a term to the underlying contract. We conclude, however, that even if the arbitrator

erred, he acted within the scope of his authority under the

contract. Accordingly, we must reverse the judgment of the

district court and remand with instructions to enforce the arbitration award.

I.

The contract at issue, a collective bargaining agreement

("CBA"), governed labor relations between PPG Industries

("Company") and certain union employees at the Company’s

Natrium, West Virginia plant during 2005. These employees

belonged to the International Chemical Workers Union Council of the United Food and Commercial Workers and the

2 PPG INDUSTRIES v. INTERNATIONAL CHEMICAL WORKERS
International Chemical Workers Union Council of the United

Food and Commercial Workers, Local Union No. 45C

("Union").

The CBA expressly provides that "grievances involving

alleged violations with respect to the application or interpretation of the terms of this agreement may be submitted by either

party to arbitration." It further provides that "[t]he Arbitrator

shall have no authority to add to, take from, change or modify

any of the terms of this Agreement nor shall he have any

authority in the making of a new agreement."

The CBA incorporates the terms of a company-wide bonus

plan, the Chlor-Alkali & Derivatives Variable Pay Plan

("Bonus Plan"). The parties agree that the CBA mandatory

arbitration provision quoted above governs disputes arising

under the Bonus Plan.

The Bonus Plan states that an employee becomes eligible

to receive a bonus if the employee:

(1) has been Actively Employed for 1,040 or more

hours during the Plan Year; and

(2)(a) is Actively Employed on the last workday of

the Plan Year; or on approved leave of absence or

layoff; or

(b) whose termination during the Plan Year was an

Eligible Termination.

The CBA defines "Actively Employed" in two sentences:

"Actively Employed" means actively at work; on

vacation; or on FMLA or Military leave of absence.

"Actively Employed" does not include overtime

hours, leaves of absence, other than FMLA and/or

Military, or layoffs.

PPG INDUSTRIES v. INTERNATIONAL CHEMICAL WORKERS 3
Union members at the Natrium plant went on strike from

September 2005 until February 2006. After resolution of the

strike and agreement on a new CBA, the Company refused to

pay the bonuses set forth in the Bonus Plan to striking

employees—even those actively employed for more than

1040 hours during 2005. Seeking payment of these bonuses,

the Union filed a grievance under the CBA. The matter proceeded to arbitration.

Following a hearing at which both sides presented evidence

and arguments, the arbitrator issued his order and opinion

awarding relief to the Union. After setting forth the parties’

respective arguments, the arbitrator noted that the "strike

extending through the last day of the year" presented a situation "never discussed, or in all probability contemplated, by

the parties during meetings regarding [the Bonus Plan]." The

arbitrator rejected the Union’s claim that the Company unlawfully retaliated in denying the strikers benefits under the

Bonus Plan. The arbitrator explained that although he could

"understand the Union’s view of [the Company’s] motivation," the Company had "made a plausible argument" for its

decision and, if he viewed the matter "without full consideration of all the surrounding circumstances[,] [he] would be

inclined to accept the Company’s claim of ineligibility."1

The arbitrator did not explain precisely what he meant by

"all the surrounding circumstances," but he did immediately

follow this observation with the statement that he was "fully

aware of the limitations" that the CBA arbitration provision

imposed on him and the Supreme Court’s requirement that

any arbitration award "draw[ ] its essence from the collective

bargaining agreement." United Steelworkers of Am. v. Enter.

Wheel & Car Corp., 363 U.S. 593, 597 (1960). The arbitrator

then quoted several arbitration decisions that set forth various

1The Union continues to pursue this claim, but only as a rationale for

reinstating the arbitration award. Because we order reinstatement of the

award on other grounds, we do not reach the retaliation argument. 

4 PPG INDUSTRIES v. INTERNATIONAL CHEMICAL WORKERS
rules of contract construction. These include the rule that "if

the terms of an agreement ‘unambiguously resolve the point

at issue, the arbitrator has no choice but to apply them as written,’" and the rule that arbitrators should attempt to determine,

"from the instrument as a whole, the true intent of the parties."

The arbitrator considered evidence submitted by both parties that during a series of meetings held in 1995, employees

asked questions about the Bonus Plan. In response to questions about the definition of "active employment," a Company

official had stated that employees were either "employed" or

"terminated," suggesting that an employee not "terminated"

was "actively employed" for purposes of the Bonus Plan. The

arbitrator noted that the Company had drafted the language of

the Bonus Plan, and that any ambiguity in the term "actively

employed" should be "construed against the drafter" (internal

quotation marks omitted) (quoting another arbitration decision).

The arbitrator next addressed the argument of the Company

based on the axiom that the expression of one thing implies

the exclusion of others. Specifically, the Company contended

that because the Bonus Plan enumerates four groups of active

employees, but does not name strikers, it thereby excludes

strikers from the ranks of the "actively employed" and so

from eligibility for bonuses. The arbitrator found that "[w]hile

the principle of exclusion is a solid one . . . there is a dilemma

here with the wording" of the Bonus Plan. That is, the arbitrator noted, the Bonus Plan also contains another list of groups

of employees—those expressly not within the category "actively employed"—and this list too does not name strikers.

The arbitrator observed that the presence of the two lists

"gives rise to the question to which list does the exclusion rule

apply? If it is the latter list then the grievants are not ineligible

[for bonuses]."

To resolve the "dilemma" created by the two contractual

lists addressing active employment, the arbitrator referred

PPG INDUSTRIES v. INTERNATIONAL CHEMICAL WORKERS 5
again to the Company’s comments at its 1995 meetings with

the Union. The arbitrator concluded that "the explanations

given to the Union in the 1995 discussions were, if not misleading, lacking in a satisfactory or clear definition of" the

term "actively employed" and therefore unclear as to eligibility for benefits under the Bonus Plan. Accordingly, the arbitrator found that the strikers, who were otherwise entitled to

bonuses "[u]nder the language of the [CBA] and the [Bonus]

Plan . . . did not forfeit that entitlement by going on strike at

the termination of their Labor Agreement and continuing on

strike through 12/31/2005."

The Company contested the arbitration award in the district

court. On cross-motions for summary judgment, the court

vacated the award, finding that the arbitrator had exceeded his

authority. The court reasoned that "nothing in the [Bonus

Plan], the CBA, or the parties’ 1995 discussions concerning

the [Bonus Plan] indicates that the parties intended to include

or exclude, or even considered including or excluding, striking employees as falling within the meaning of ‘Actively

Employed.’" For this reason, the court believed that the arbitrator had "effectively changed the term ‘Actively Employed’

by adding ‘on strike’ to its list of inclusions, in violation of

the restrictions imposed upon his authority by the CBA."

The Union timely filed this appeal.

II.

Whether an arbitrator acts within the scope of his authority

presents a question of law, and so we review the judgment of

the district court de novo. Island Creek Coal Co. v. Dist. 28,

United Mine Workers of Am., 29 F.3d 126, 129 (4th Cir.

1994).

"[J]udicial review of arbitration awards is . . . ‘among the

narrowest known to the law.’" U.S. Postal Serv. v. Am. Postal

Workers Union, 204 F.3d 523, 527 (4th Cir. 2000) (quoting

6 PPG INDUSTRIES v. INTERNATIONAL CHEMICAL WORKERS
Union Pac. R.R. v. Sheehan, 439 U.S. 89, 91 (1978)). Indeed,

the Supreme Court has recently explained that "[j]udicial

review of a labor-arbitration decision" is not merely limited

but "very limited." Major League Baseball Players Ass’n v.

Garvey, 532 U.S. 504, 509 (2001) (per curiam). A court must

"determine only whether the arbitrator did his job—not

whether he did it well, correctly, or reasonably, but simply

whether he did it." Mountaineer Gas Co. v. Oil, Chem. &

Atomic Workers Int’l Union, 76 F.3d 606, 608 (4th Cir. 1996).

Of course, the arbitrator cannot "ignore the plain language

of the contract" to impose his "own notions of industrial justice." United Paperworkers Int’l Union v. Misco, Inc., 484

U.S. 29, 38 (1987). However, "mere ambiguity in the opinion

accompanying an award, which permits the inference that the

arbitrator may have exceeded his authority, is not a reason for

refusing to enforce the award." Enter. Wheel, 363 U.S. at 598.

The Court has explained that since arbitrators need not give

any rationale for an arbitration award, requiring their opinions

to be "free of ambiguity may lead arbitrators to play it safe by

writing no supporting opinions." Id. Therefore, "as long as the

arbitrator is even arguably construing or applying the contract

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

convinced he committed serious error does not suffice to

overturn his decision." Misco, 484 U.S. at 38.2

2The Company acknowledges most of these well-established principles.

A notable exception is the Company’s heavy reliance on Wyandot, Inc. v.

Local 227, United Food & Commercial Workers Union, 205 F.3d 922,

929 (6th Cir. 2000), to establish some limitations on the arbitrator’s role.

The Company fails to recognize that the Sixth Circuit itself has recently

held that the Supreme Court’s holdings in Misco and Garvey do not permit

these limitations and so overruled the approach followed in Wyandot. See

Mich. Family Res. v. Serv. Employees Int’l Union Local 517M, 475 F.3d

746, 751-53 (6th Cir. 2007) (en banc). 

PPG INDUSTRIES v. INTERNATIONAL CHEMICAL WORKERS 7
III.

To circumvent the mountain of authority holding that

courts cannot second-guess an arbitrator’s construction of a

CBA, the Company principally contends that the "arbitrator

ignored plain contract language," added "a new term to the

agreement," and so "strayed from his proper role." Brief of

Appellee at 12, 23, 36.

Given the two-sentence CBA definition of "actively

employed" and the failure of the CBA to address strikers in

either sentence, we cannot conclude that the arbitrator ignored

the plain language of the CBA. Yuasa, Inc. v. Int’l Union of

Electronic, Electrical, Salaried, Mach. & Furniture Workers,

Local 175, 224 F.3d 316 (4th Cir. 2000), is instructive here.

There, as here, the the CBA did not address certain issues,

which therefore "had to be addressed through interpretation"

by the arbitrator. Id. at 323. Also as in Yuasa, the arbitrator’s

decision was consistent with the parties’ general intent as

manifested in the agreement itself and, in any event, not

inconsistent with any clearly expressed limitation. Id.

The Company’s arguments simply constitute an attack on

the correctness of the arbitrator’s decision. A court has no

warrant to determine the correctness of the arbitrator’s award.

If an arbitrator "even arguably" construes a CBA, a court

must uphold the resulting award. Misco, 484 U.S. at 38.

Certainly, in the case at hand, the arbitrator construed the

CBA. At the outset of his opinion, the arbitrator explicitly

acknowledged his limited mandate under the CBA and the

Supreme Court’s admonition in Enterprise Wheel that he

draw the essence of his award from the CBA. The arbitrator

then dedicated virtually his entire opinion to interpreting the

phrase "actively employed" in the CBA. In doing so, he

repeatedly relied on precedents interpreting the very same

phrase and on the rules of contract construction.

8 PPG INDUSTRIES v. INTERNATIONAL CHEMICAL WORKERS
Accordingly, the arbitration award at issue here stands in

stark contrast to the few modern instances in which we have

held that an arbitrator crossed the line from construing a contract to imposing his own notions of fairness. Cf. Postal Serv.,

204 F.3d at 528 (rejecting an arbitrator’s award that "contravene[d] the unambiguous language of" the contract); Champion Int’l Corp. v. United Paperworkers Int’l Union, 168 F.3d

725, 731 (4th Cir. 1999) (rejecting an arbitrator’s award

because it was based on the wrong contract); Mountaineer

Gas, 76 F.3d at 610 (rejecting an arbitrator’s award that "blatantly ignored the unambiguous language" of the company’s

policy and instead "fashion[ed] an entire new remedy and

infuse[ed] his personal feelings and sense of fairness into the

award"); Island Creek Coal Co., 29 F.3d at 130–31 (rejecting

an arbitrator’s award for punitive damages when the underlying agreement did not authorize punitive damages).

For these reasons, the Company’s contention that the "arbitrator ignored plain contract language" and added "a term to

the CBA" must fail.

IV.

The Company’s only remaining argument—that the arbitrator erred in using extrinsic evidence (i.e. evidence as to the

1995 meetings) to construe "unambiguous language" in the

CBA—also fails.3 This is so because the arbitrator found the

terms of the CBA ambiguous, and this court cannot secondguess that judgment.

3Tellingly, the Company itself has recognized facial ambiguity in the

CBA and Bonus Plan. Thus, the Company argues that the plain language

of these documents requires an employee to be "Actively Employed" "on

the last work day" of a year to earn the bonus, but contends that it has

"never taken" the "ridiculous position" of denying benefits under the

Bonus Plan "to an employee who happened to be scheduled off of work"

when December 31 falls on a Saturday. Brief of Appellee at 16 n.8. Moreover, in making this argument, the Company relies on "the 1995 discussions between the Company and the Union," which it contends the

arbitrator improperly considered. Id.

PPG INDUSTRIES v. INTERNATIONAL CHEMICAL WORKERS 9
The "basic objective" of a reviewing court in the arbitration

context is "to ensure that commercial arbitration agreements,

like other contracts, are enforced according to their terms, and

according to the intentions of the parties." First Options of

Chi., Inc. v. Kaplan, 514 U.S. 938, 947 (1995) (citations and

internal quotation marks omitted). Here, the parties expressly

agreed in the CBA that the arbitrator could adjudicate "grievances involving alleged violations with respect to the application or interpretation of the terms of [the CBA]" (emphasis

added). Because determining whether the terms of a contract

are ambiguous is an exercise in "interpretation," the parties

agreed in the CBA that the arbitrator would determine the

ambiguity vel non of its terms. See Green Tree Fin. Corp. v.

Bazzle, 539 U.S. 444, 453 (2003) (noting that when a contract

contains such "sweeping language concerning the scope of the

questions committed to arbitration, . . . matter[s] of contract

interpretation should be for the arbitrator, not the courts, to

decide"). Pursuant to this authority (and consistent with the

record before him), the arbitrator found the terms of the CBA

ambiguous.

In light of that finding, the arbitrator could properly consider the 1995 meetings in order to resolve the ambiguity. See

CSX Transp., Inc. v. United Transp. Union, 29 F.3d 931, 936

(4th Cir. 1994) ("If the parties’ written agreement is ambiguous or silent regarding the parties’ intent, the arbitrator may

use past practices and bargaining history to ‘fill a gap’ in the

written contract.").

V.

Accordingly, we reverse the judgment of the district court

and remand the case for entry of a judgment enforcing the

arbitration award.

REVERSED AND REMANDED

10 PPG INDUSTRIES v. INTERNATIONAL CHEMICAL WORKERS