UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROAD SPRINKLER FITTERS LOCAL

UNION NO. 669, affiliated with The

United Association of Journeymen

and Apprentices of the Plumbing

and Pipefitting Industry of the

United States and Canada,

No. 97-1892

AFL-CIO,

Plaintiff-Appellee,

v.

POWER CITY HEATING & PLUMBING,

INCORPORATED,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

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

(CA-93-97-5)

Submitted: January 20, 1998

Decided: February 25, 1998

Before NIEMEYER and LUTTIG, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stanley G. Burech, Donna L. Crow, BURECH & CROW, St. Clairsville, Ohio, for Appellant. William W. Osborne, Jr., Robert H. Mor-
silli, OSBORNE LAW OFFICES, P.C., Washington, D.C., for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Power City Heating & Plumbing, Inc. (Power City), appeals the

district court's order granting summary judgment in favor of Road

Sprinkler Fitters Union No. 669 (Local 669) on the issue of liability,

thereby enforcing an arbitration award based on the collective bargaining agreement (Project Agreement) between Local 669 and

Power City. Jurisdiction is based on § 301 of the Labor Management

Relations Act, 29 U.S.C. § 185 (1994). Power City argues that an

arbitration committee (the Committee) lacked jurisdiction to hear and

decide the dispute because the Committee was improperly selected

and because the Committee disregarded several procedural errors

committed by Local 669 that were in violation of the Project Agreement. This panel has already granted Power City's motion to submit

this case on the briefs. Finding no merit to these contentions, we

affirm.

The parties' dispute arises from the installation of a sprinkler system for Wheeling Hospital. The terms and conditions for all labor

were governed by the Project Agreement executed by Wheeling Hospital, the Upper Ohio Valley Building & Construction Trades Council

(BCTC), and its affiliated unions, the Ohio Valley Construction

Employers Council (OVCEC), and all contractors who performed

work on the project. When the dispute arose, Local 669 and Power

City were signatories to the Project Agreement, which provides for

final and binding arbitration of grievances. This case arose from

Power City's refusal to utilize workers from Local 669.

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Power City began work on a portion of the project utilizing a different union, Local 83, to install the sprinkler system. A dispute

developed in which Local 669 contended that it had the exclusive

right under the Project Agreement to install the system because it was

a signatory to the Project Agreement. After Power City continued to

employ labor from Local 83, Local 669 organized picketing of Power

City at the project and then reduced its grievance to writing.

Local 669's grievance was heard on April 15, 1993, by the Committee, whose members were selected by BCTC and OVCEC. At the

arbitration hearing, Power City contended that the Committee was

without jurisdiction to consider Local 669's grievance because Power

City should have been permitted to appoint three members to the

Committee. The Committee noted that under Paragraph 9 of the Project Agreement, OVCEC and/or Power City may appoint three members to the six-member Committee. The Committee further noted that

Power City was aware of Local 669's grievance and had requested a

continuance of the hearing, without expressing a desire to appoint

three members to the Committee.* Consequently, the Committee concluded that Power City waived its right to make appointments to the

Committee. The Committee further found Power City's procedural

challenges meritless and ordered Power City to execute the Project

Agreement and utilize workers from Local 669.

In May 1993, Local 669 filed a complaint and then an amended

complaint seeking to compel enforcement of the arbitration award.

Power City interposed a counterclaim in which it sought to vacate the

decision and the award. Power City argued that the Committee was

not properly selected and therefore lacked jurisdiction to issue an

award, and that Local 669 did not follow the procedural requirements

set forth in Paragraph 9 of the Project Agreement. On cross-motions

for summary judgment on the issue of liability by both parties, the

_________________________________________________________________

*The Committee noted that Power City was aware of Local 669's

grievance by April 2, 1993. The Committee further explained that the

arbitration hearing was originally scheduled for April 6, 1993, and that

pursuant to a request from Power City, the matter was rescheduled for

April 15, 1993, at 10:00 a.m. On April 14, 1993, Power City claimed that

it could not attend the arbitration hearing at 10:00 a.m. and the hearing

was rescheduled for 8:30 a.m.

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district court concluded that the Committee's decision and award was

derived from the essence of the parties' contract, that the Committee

properly construed the terms of the Project Agreement, and that the

Committee correctly found that Power City violated the Project

Agreement. The court subsequently denied Local 669's request for

damages and dismissed the action.

Because "the question of whether an arbitrator exceeded the scope

of his authority is a question of law," this court reviews the ruling of

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

UMWA, 29 F.3d 126, 129 (4th Cir. 1994) (citing Upshur Coals Corp.

v. UMWA, Dist. 31, 933 F.2d 225, 228 (4th Cir. 1991)). Federal courts

must give "special judicial deference" to an arbitrator's decision, and

the court's review of an arbitrator's award under§ 301 is very limited. Id. Because the parties to a collective bargaining agreement bargained for an arbitrator to interpret the contract, federal courts should

not substitute their interpretation of the labor contract for the arbitrator's. See id. Instead, federal courts should overturn the decision of

an arbitrator only if the decision is not based on the terms of the collective bargaining agreement. See United Paperworkers Int'l Union

v. Misco, Inc., 484 U.S. 29, 38 (1987); Island Creek, 29 F.3d at 129.

Thus, an arbitrator's award will be overturned only if the arbitrator

"based his award on his own personal notions of right and wrong, for

only then does the award fail to draw its essence from the collective

bargaining agreement." Upshur Coals Corp., 933 F.2d at 229 (citations omitted).

Here it is clear that the arbitration award draws its essence from the

underlying Project Agreement. First, the record reveals that Local 669

signed the Project Agreement on June 11, 1992, and that Power City

signed it on September 15, 1992. Therefore, the Committee correctly

found that both parties were signatories to the Project Agreement. See

International Longshoremen's Ass'n v. Cataneo Inc. , 990 F.2d 794,

799 n.11 (4th Cir. 1993) (stating that a grievance committee decision

or an arbitration award "cannot be overturned as long as it is based

upon some support in the record."). The Committee also properly

rejected Power City's contention that Local 669 violated the procedural requirements set forth in Paragraph 9 of the Project Agreement.

Because the Committee had the authority to interpret the Project

Agreement which set forth the grievance and arbitration procedures,

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these procedural issues were properly left for the Committee to

decide. See Glass v. Kidder Peabody & Co., 114 F.3d 446, 453 (4th

Cir. 1997) (quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S.

543, 557 (1964) ("`[P]rocedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator")).

Finally, the Committee construed the Project Agreement's directive

under Paragraph 9 "that three members of the Committee should be

selected by OVCEC and/or the employer (Power City), whichever is

applicable." In concluding that the choice of three Committee members by OVCEC was "applicable," the Committee noted that Power

City failed to choose three arbitrators in a timely fashion and thereby

waived its right to select members. Consequently, Power City has

failed to show that the Committee's decision was premised on its own

notions of right and wrong.

Accordingly, Power City's contentions that the Committee did not

have jurisdiction to resolve this dispute and that the arbitration award

fails to draw its essence from the Project Agreement are without

merit. We therefore affirm the district court's grant of partial summary judgment to Local 669.

AFFIRMED

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