* The Honorable Wayne E. Alley, District Judge of t he Western District of

Oklahoma, sitting by designation. 

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

### AUG 2 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LOCAL NO. 7 UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, Plaintiff - Appellee, v. KING SOOPERS, INC., a division and subsidiary of (respectively) Dillon Companies, Inc., Kroger Company, Defendant - Appellant. No. 99-1339

Appeal from the United States District Court

for the District of Colorado (D.C. No. 99-B-515)
Emily Fontelle Keimig (Raymond M. Deeny with her onthe briefs), Sherman & Howard, LLC, Colorado Springs, Colorado, for the ap pellant. Michael J. Belo, General Counsel, United Food and C ommercial Workers Union, Local No. 7, Wheat Ridge, Colorado, for the appelle e.

Before LUCERO , Circuit Judge, McWILLIAMS , Senior Circuit Judge, and ALLEY , District Judge. *- 2 -

LUCERO , Circuit Judge.

This is an appeal from the district court’s grant o f summary judgment to plaintiff-appellee United Food & Commercial Workers International Union, Local No. 7 (“the Union”) under Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185(a). The Union successful ly sought to enforce an arbitrator’s award made pursuant to a collective ba rgaining agreement (“CBA”) between the Union and defendant-appellant King Soop ers, Inc. We inquire as to whether the district court erred in holding that th e arbitration award drew its essence from the CBA and was enforceable. Exercisi ng jurisdiction under 28 U.S.C. § 1291, we affirm.
I The relevant facts in this case are undisputed. In June 1997 Lally Parbhu, an employee of King Soopers and a Union member, too k a leave of absence from her job as an all-purpose clerk (cashier/checker) at a King Soopers store in order to visit her ailing father in India. After her ret urn from India in July, she returned to work but then herself fell ill, and a physician wrote a note requesting that she be excused from work until August 4, 1997. Withoutfurther notifying King Soopers, however, Parbhu did not return to work on August 4 due to her continued illness.1 It is undisputed that Parbhu is included in the b argaining unit and

therefore is covered by the CBA. - 3 - On August 19, 1997, she called the store to check h er work schedule and spoke to the head clerk, who informed her that her employment with King Soopers had been terminated and that she needed to speak with Joe Hernandez, the store manager. Several days later, a meeting w as held between Parbhu, Hernandez, and Kim Cordova, a business agent of the Union. At that meeting Parbhu explained she had not reported for work betw een August 4 and August 19, 1997, because she was ill, though she acknowledged that she should have informed store management of her ongoing absence. Following the meeting, Hernandez suspended her pending further investigati on. He consulted with his supervisor, Anna Martinez, and thereupon terminatedParbhu for violation of King Soopers’s “no call/no show” policy. The King Soopers no call/no show policy provides th at “[u]nexcused absences, (i.e., not calling or reporting for work for three (3) consecutive work days) will be grounds for immediate discharge.” (I Appellant’s App. at 94.) Article 40, Section 114 of the CBA governing relati ons between King Soopers and the Union and employees provides that “no emplo yee who falls within the bargaining unit shall be discharged without good an d sufficient cause.” 1 (Id. at 45.) The CBA nowhere defines “good and sufficient cause” for termination, nor- 4 -

does it give examples of conduct rising to the leve l of “good and sufficient cause.” Article 6, Section 14 (the “Rights of Mana gement” section) of the CBA further states that “[t]he Employer retains the rig ht . . . to make necessary reasonable rules and regulations for the conduct of business, providing that said rules and regulations are not in conflict with the terms of this Agreement in any way.” (Id. at 17.) On September 19, 1997, the Union filed a grievance, protesting the decision to terminate Parbhu. Pursuant to the CBA’s grievan ce procedure, which provided for an arbitrator to interpret the terms of the CBA , the Union and King Soopers submitted the following question for arbitration: Was the Grievant, Ms. Lally Parbhu, terminated for good and sufficient cause? If not, what is the appropriate remedy? (Id. at 100.) After reviewing prior arbitration cases involving g rievances filed as a result of a termination decision, the arbitrator in the in stant case determined that King Soopers had not terminated Parbhu for good and suff icient cause, despite the fact that the no call/no show policy was reasonable. “While it is possible,” he held, “for violations of the no call/no show rule to be g rounds for immediate termination, Ms. Parbhu’s discharge did not meet th e tests of just cause.” (Id. at 111.) He based that determination on the following factors, gleaned from his review of past arbitration decisions: (1) Terminati on for a single offense is- 5 -

usually restricted to particularly grave breaches o f proper conduct such as assault, fighting, or theft, while for less serious violatio ns such as Parbhu’s progressive discipline is applied; (2) Parbhu would have likelyresponded well to progressive discipline, and there was no reason to apply the se vere penalty of termination; (3) Arbitrators in previous cases gave consideration to mitigating circumstances such as seniority and prior work history, and because Parbhu had been disciplined only once previously in the six years she had worked forKing Soopers, those mitigating circumstances should have been considere d; (4) It was King Soopers’s practice to call employees who do not report for wo rk, and the termination decision in the instant case was made without attempting to contact Parbhu. As a result, the arbitrator ordered that Parbhu be reins tated with full seniority to her former position or a comparable one, but because sh e violated the no call/no show rule, he ordered that the termination decision be c onverted to a term of suspension without pay. Both the Union and King Soopers thereupon filed sui t in United States District Court for the District of Colorado under S ection 301 of the LMRA, 29 U.S.C. § 185(a), the former to enforce the arbitrat or’s award and the latter to vacate it. The Union and King Soopers filed cross- motions for summary judgment, and the district court granted summary ju dgment to the Union, ordering that the arbitrator’s award be enforced. See United Food & Commercial Workers- 6 -

Union, Local No. 7 v. King Soopers, Inc. , 52 F. Supp.2d 1215 (D. Colo. 1999). King Soopers now appeals.
II Our standard of review is well-established: “We rev iew the district court’s grant of summary judgment de novo, applying the sam e legal standard used by the district court.” Simms v. Oklahoma ex rel Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir.), cert. denied , 120 S. Ct. 53 (1999); see also Fed. R. Civ. P. 56(c). With respect to our review of arbitral awards in la bor disputes, we are guided by the following standard, “among the narrow est known to the law,” Litvak Packing Co. v. United Food & Commercial Work ers, Local Union No. 7 , 886 F.2d 275, 276 (10th Cir. 1989): The courts are not authorized to reconsider the mer its of any award even though the parties may allege that the award rests on errors of fact or on misinterpretation of the contract. The refusal of courts to review the merits of an arbitration award is the proper approach to a rbitration under collective bargaining agreements. United Paperworkers Int’l Union v. Misco , 484 U.S. 29, 36 (1987) (internal quotations and citation omitted). “The parties hav e contracted for an arbitrator to resolve their disputes, not a court,” Litvak Packin g Co. , 886 F.2d at 276 (citing Misco , 484 U.S. at 37-38) (further citation omitted), an d thus “so far as the arbitrator’s decision concerns construction of the contract, the courts have no- 7 -

business overruling [the arbitrator] because their interpretation of the contract” differs, United Steelworkers of Am. v. Enterprise Wheel & Car Corp. , 363 U.S. 593, 599 (1960). That policy of exceedingly narrowjudicial review is based on the fact that the arbitrators under . . . collective [bargaining] agreements are indispensable agencies in a continuous collective b argaining process. They sit to settle disputes at the plant level—disputes that require for their solution knowledge of the custom and practices of aparticular factory or of a particular industry as reflected in particular ag reements. Id. at 596 (footnote omitted). “Nonetheless, an arbit rator is confined to interpretation and application of the collective ba rgaining agreement; he does not sit to dispense his own brand of industrial justice , . . . . his award is legitimate only so long as it draws its essence from the colle ctive bargaining agreement.” Id. at 597. That will be the case “as long as the arb itrator is even arguably construing or applying the contract and acting with in the scope of his authority,” Misco , 484 U.S. at 38. But an award does not draw its e ssence from the CBA if it is contrary to the express language of the contr act . . . or . . . is so unfounded in reason and fact, so unconnected with the working and purpose of the agreement as to manifest an infidelity to th e obligation of the arbitrator . . . . [or] if viewed in the light of i ts language, its context, and any other indicia of the parties’ intention, it is without factual support. Mistletoe Express Serv. v. Motor Expressmen’s Union , 566 F.2d 692, 694 (10th Cir. 1977) (internal quotations and citations omitt ed).- 8 - A As an initial matter, we disagree with King Soopers ’s contention that its no call/no show policy has been incorporated into the CBA and therefore a violation of that policy always constitutes “good and suffici ent cause” for termination under the CBA. Although the CBA negotiated betweenKing Soopers and the Union gives King Soopers “the right . . . to make n ecessary reasonable rules and regulations for the conduct of business, providing that said rules and regulations are not in conflict with the terms of [the CBA] in any way,” (Appellant’s App. at 17), the right to make such rules is not the right to equate the violation of such rules with “good and sufficient cause” for terminat ion. To hold otherwise would be to allow King Soopers to unilaterally define the meaning of “good and sufficient cause,” a right which was not contemplat ed by the CBA and for which King Soopers must negotiate with the Union. The Second Circuit was faced with a similar situati on in First National Supermarkets, Inc. v. Retail, Wholesale & Chain Sto re Food Employees Union Local 338 , 118 F.3d 892 (2d Cir. 1997). In that case, an ar bitrator determined that the violation of a rule promulgated by a super market providing for immediate dismissal for certain conduct did not constitute “j ust cause” for termination under a collective bargaining agreement and reversed the supermarket’s termination of an employee. Id. at 895. As in the present case, the collective ba rgaining- 9 -

agreement in First National Supermarkets required but did not define “just cause” for termination and gave the supermarket the right to promulgate policies. Id. at 894. The district court upheld the arbitrator’s aw ard, and the Second Circuit affirmed, holding that because “just cause” was notdefined in the collective bargaining agreement and because “the CBA authorize s the arbitrator to resolve disputes concerning the interpretation or applicati on of its terms, it remains for the arbitrator to determine whether a discharge was for ‘just cause.’” Id. at 896 (citation omitted). As for the argument that the s upermarket policy was integrated into the CBA, the Second Circuit categorically reje cted that claim: [The CBA] does indeed give the employer the right t o “establish policies”; it also gives the employer the right to “discharge for just cause.” It does not, however, provide that any violation of the emp loyer’s established policies must necessarily constitute “just cause” f or discharge. Id. Rather, the court concluded that if the supermark et “wished to have an unquestionable right to discharge an employee for a ny specified conduct, it needed to negotiate for recognition of that right i n the CBA.” Id. (citation omitted). We agree entirely with the Second Circui t’s reasoning, which compels the same result in the instant case. The no call/n o show policy is not integrated into the CBA, and therefore we reject King Soopers’ s argument that the arbitral award does not draw its essence from the CBA becaus e it disregards the2 General Drivers, Warehousemen & Helpers Local Uni on 968 v. Sysco

Food Services, Inc. , 838 F.2d 794, 796 n.1, 799 n.4 (5th Cir. 1988), o n which King Soopers relies for the proposition that the no call/no show policy was integrated into the CBA, is distinguishable on its facts. In Sysco , the CBA provided that, [t]he Union recognizes the right of the Company to make and enforce Rules and Regulations and that violation thereof may be j ust cause for discipline or discharge of employees. The only question whichmay be the subject of a “grievance” is whether or not the disciplined emp loyee did or did not engage in the specific conduct which resulted in th e disciplinary action. Id. at 796. Thus, in Sysco , the CBA expressly incorporated the employer’s rul es into its “just cause” provision. The CBA in the in stant case contains no such language, and we will not read such a clause into t he CBA absent indications that such was the intention of the parties. We note that the Fourth Circuit’s opinion in Mountaineer Gas Co. v. Oil, Chemical & Atomic Worke rs International Union , 76 F.3d 606, 609-10 (4th Cir. 1996), also cited by Kin g Soopers, relies on General Drivers for its holding that a rule promulgated unilateral ly by the employer is incorporated into the CBA. See id. at 610. As noted, the CBA in the present case lacks language specifically permitting the employerto define “good and sufficient cause” by rule, such as that in General Drivers , and thus Mountaineer Gas , too, must be distinguished. To the extent Mountaineer G as can be otherwise interpreted, it is contrary to the law of our Circu it. - 10 - management rights clause. 2 Rather, the arbitral award properly interprets th at clause in conjunction with other provisions of the CBA. We likewise hold that the arbitrator’s decision to consider the no call/no show policy as grounds for discipline draws its ess ence from the CBA, given his finding that the policy was reasonable and given th at it had been promulgated pursuant to the “Rights of Management” section of the CBA, Article 6, Section 14. Nothing in this opinion should be read as null ifying an arbitrator’s duty to3 The instant case is thus distinguishable from Con oco, Inc. v. Oil,

Chemical & Atomic Workers International Union , Nos. 87-1482, 86-1639, 1988 WL 163062, at *3 (10th Cir. Sept. 12, 1988) (unpubl ished), cited by appellant, in which “the arbitrator failed to address or in any w ay distinguish the established rules of conduct which directly conflicted with the basis of his decision.” In the present case the arbitrator did not ignore the no c all/no show policy and specifically evaluated the appropriateness of termi nation and other disciplinary measures in light of the policy and the circumstanc es of Parbhu’s case. - 11 - consider a reasonable company policy promulgated pu rsuant to that company’s rights under a collective bargaining agreement. Bu t the weight the arbitrator decides to accord that policy, as discussed below, is not a matter for judicial review. 3
B With regard to whether the arbitrator’s award otherwise drew its “essence” from the CBA, in the present case, the terms of the agreement were ambiguous, nowhere defining “good and sufficient cause.” Unde r our precedent, “[i]t is a well-recognized principle that, except where expres sly limited by a labor agreement, an arbitrator may consider and rely upon extrinsic evidence, including negotiating and contractual history of the parties, evidence of past practices, and the common law of the shop, when interpreting ambig uous provisions.” Champion Boxed Beef Co. v. Local No. 7 United Food & Commercial Workers Int’l Union , 24 F.3d 86, 88-89 (10th Cir. 1994). Indeed, the very nature of the arbitrator’s role in settling disputes under collec tive bargaining agreements is to4 Contrary to appellant’s contention, the fact thatthe arbitrator considered

the no call/no show policy as grounds for disciplin e in this case but not for termination did not nullify the management rights s ection of the CBA or add new terms or conditions to that agreement. As discusse d, the fact that the CBA is ambiguous as to the meaning of “good and sufficientcause” and provides for arbitration indicates the parties’ intention to hav e that term interpreted by the arbitrator, and none of the arbitrator’s methods fo r evaluating the grievance are contrary to the terms of the CBA. - 12 - examine such practices. See Enterprise Wheel & Car Corp. , 363 U.S. at 596. Specifically, in Champion Boxed Beef Co. , 24 F.3d at 88 (citing United Steelworkers v. Warrior & Gulf Navigation Co. , 363 U.S. 574, 581-82 (1960)), we upheld an arbitrator’s award reinstating an empl oyee terminated for insubordination based in part on the arbitrator’s c onsideration of “testimony concerning the Company’s current practice . . . whe n other employees have balked at accepting work assignments.” See also Mistletoe Express Serv. , 566 F.2d at 695 (“In a proper case an arbitrator, in reliance o n custom or usage in an industry, may construe a ‘just cause’ provision of a labor co ntract to include a progressive discipline requirement and may determine that certa in conduct is ‘just cause’ for discipline but not for discharge.”). That is preci sely what the arbitrator did in the present case. He reviewed termination and discipli nary practices, which in his judgment compelled the conclusion that termination was too severe a penalty for Parbhu’s breach of the no call/no show policy, alth ough the breach of that policy was deserving of disciplinary measures. 4 There is no question but that the- 13 -

arbitrator’s determination drew its essence from th e CBA, “and we cannot substitute our interpretation of the contract for [ the arbitrator’s].” Litvak Packing
Co. , 886 F.2d at 276. Appellant mistakenly relies on our decisions in Int ernational Union of Operating Engineers, AFL-CIO, Local No. 670 v. Kerr -McGee Refining Corp. , 618 F.2d 657, 659-60 (10th Cir. 1980), and Mistleto e Express Service , 566 F.2d at 695, for the proposition that the arbitrator’s e xamination of extraneous evidence—specifically, evidence of past practice re garding progressive discipline—is inappropriate. Mistletoe Express Service and Kerr-McGee involved situations in which the agreements at issu e expressly provided for certain conduct as just cause for discharge, and th e arbitrators substituted their own views for express language in the collective bargaining agreements. See
Kerr-McGee , 618 F.2d at 658-60; Mistletoe Express Serv. , 566 F.2d at 694-95. In the present case, by contrast, the term “good and s ufficient cause” was not defined in the CBA. The arbitrator was acting well within the scope of his authority and the essence of the CBA in reaching hi s result.
III The judgment of the district court is AFFIRMED

.