NOT RECOMMENDED FOR PUBLICATION File Name: 23a0435n.06
Case No. 22-1943
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Oct 12, 2023 BLUE CROSS BLUE SHIELD OF MICHIGAN, ) DEBORAH S. HUNT, Clerk ) Plaintiff / Counter Defendant - Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF INTERNATIONAL UNION, UNITED ) MICHIGAN AUTOMOBILE, AEROSPACE AND ) AGRICULTURAL IMPLEMENT WORKERS ) OPINION OF AMERICA, LOCAL 1791, ) Defendant / Counter Plaintiff - Appellee. ) )
Before: SUTTON, Chief Judge; CLAY and LARSEN, Circuit Judges.
SUTTON, Chief Judge. After Blue Cross Blue Shield of Michigan fired Travis Moore, the
applicable collective bargaining agreement permitted his union to grieve the firing. An arbitrator
set aside the discharge and imposed a 30-day suspension. The district court upheld the arbitrator’s
decision. We affirm.
I.
Travis Moore works as a claims specialist for Blue Cross Blue Shield of Michigan. In
2019, he missed work on September 3, 4, and 5. On the last day, Blue Cross discharged him.
Moore’s union, the United Automobile Workers, took issue with the firing, and the parties
submitted the dispute to arbitration in accordance with the requirements of the relevant collective Case No. 22-1943, Blue Cross Blue Shield of Mich. v. UAW, Local 1781
bargaining agreement. Under those rules, the parties selected Betty Widgeon, an approved
arbitrator from the American Arbitration Association, to arbitrate the case. The parties asked the
arbitrator to determine whether Blue Cross had just cause to fire Moore.
As Moore and the union saw it, the firing was not justified. He claimed that he had already
been excused from work for the three consecutive days he missed, all leading up to his scheduled
time off for shoulder surgery and recovery. Prior to his absences, Moore left messages with his
manager saying he needed time off and he submitted some paperwork to the third-party
administrator on August 28, August 29, and September 3 about the upcoming disability leave and
the need for time off. He also talked with the third-party medical claims company and his doctor
to get his medical paperwork submitted. But the paperwork did not arrive until after he had been
fired, precluding him from filing it before the surgery and the three days immediately preceding
it. He also submitted a doctor’s note after the fact that supported the leave.
As Blue Cross saw it, Moore failed to do what he was supposed to do—report to work each
day or call his employer each of the three days he missed work. It noted that he no longer had
leave under the Family Medical Leave Act after August 20, 2019, and his disability leave for the
shoulder surgery did not start until September 6, 2019. Under these circumstances, Blue Cross
maintained that it had just cause to fire him under the labor agreement, which says that employees
“shall lose their seniority and employment rights” if they are “absent for three consecutive working
days without properly notifying [Blue Cross] of the reasons for such absence, unless it was not
reasonably possible to do so.” R.1-1 at 56–57.
2 Case No. 22-1943, Blue Cross Blue Shield of Mich. v. UAW, Local 1781
The arbitrator held a virtual hearing on November 19, 2020. During the hearing, the parties
had the opportunity to offer witnesses, cross-examine them, introduce exhibits, make arguments,
and submit post-hearing briefs. The arbitrator issued her decision on March 1, 2021. In that
decision, she agreed that Moore failed to follow the labor agreement by not supplying the proper
notice for each missed day of work. But she concluded that Blue Cross’s decision to fire Moore
“was excessive” and was not required by the collective bargaining agreement. R.14-6 at 6. She
downgraded Moore’s punishment to a 30-day suspension. Unhappy with the arbitrator’s decision,
Blue Cross asked the arbitrator to reconsider. The arbitrator initially changed her mind, but a few
weeks later she issued an order standing by her original decision.
Blue Cross filed this lawsuit in the Eastern District of Michigan, asking the court to vacate
or modify the arbitration award. See 29 U.S.C. § 185. Both parties filed motions for summary
judgment. The district court granted the union’s motion and enforced the arbitrator’s decision,
relying on the highly deferential review that applies to judicial review of arbitration decisions.
Blue Cross appealed.
II.
We review a labor arbitration decision under “one of the narrowest standards of judicial
review in all of American jurisprudence.” Tenn. Valley Auth. v. Tenn. Valley Trades & Lab.
Council, 184 F.3d 510, 515 (6th Cir. 1999) (quotation omitted). When an arbitrator is “resolving
any legal or factual disputes,” we uphold the arbitrator’s award as long as she was “arguably
construing or applying the contract.” Mich. Family Res., Inc. v. Serv. Emps. Int’l Union Loc.
517M, 475 F.3d 746, 753 (6th Cir. 2007) (en banc). In making that call, “we review outcomes,
not opinions.” Id. at 755. That means we “focus” on a “fair process, not substance, unless the
substance of the interpretation is so off the wall that it makes implausible the idea that the arbitrator
3 Case No. 22-1943, Blue Cross Blue Shield of Mich. v. UAW, Local 1781
was engaged in interpretation in the first place.” Zeon Chems., L.P. v. United Food & Com.
Workers, 949 F.3d 980, 982 (6th Cir. 2020).
As a matter of process, the arbitrator listened to testimony offered by both sides, considered
the exhibits that included the relevant labor agreements, and heard the parties’ factual and legal
arguments. In her six-page decision, she stated that the “crux of the matter” before her was “what
the [labor] agreement required” and “what was actually done” by Moore. R.1-3 at 4. The arbitrator
quoted from the labor agreement and concluded that Moore “failed to comply” with it by missing
three days of work without properly notifying Blue Cross. Id. at 6. But given “the totality of
circumstances,” including competing provisions of the labor agreement, she concluded that firing
Moore would be “excessive” and that a 30-day suspension was the more appropriate penalty. Id.
at 6. Part of that analysis turned on the finding that Blue Cross had departed from its customary
practices in this area by imposing multiple disciplinary actions for what amounted to a single string
of absences. See Beacon J. Publ’g. Co. v. Akron Newspaper Guild, Loc. No. 7, 114 F.3d 596, 601
(6th Cir. 1997) (“[a]rbitrators commonly utilize past practice” in contract interpretation). All told,
the arbitrator acknowledged that her job was to construe and apply the contract, and she proceeded
to do that in her opinion.
As a matter of substance, the arbitrator’s decision was not “so off the wall that it makes
implausible the idea that the arbitrator was engaged in interpretation.” Zeon Chems., 949 F.3d at
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0435n.06
Case No. 22-1943
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Oct 12, 2023 BLUE CROSS BLUE SHIELD OF MICHIGAN, ) DEBORAH S. HUNT, Clerk ) Plaintiff / Counter Defendant - Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF INTERNATIONAL UNION, UNITED ) MICHIGAN AUTOMOBILE, AEROSPACE AND ) AGRICULTURAL IMPLEMENT WORKERS ) OPINION OF AMERICA, LOCAL 1791, ) Defendant / Counter Plaintiff - Appellee. ) )
Before: SUTTON, Chief Judge; CLAY and LARSEN, Circuit Judges.
SUTTON, Chief Judge. After Blue Cross Blue Shield of Michigan fired Travis Moore, the
applicable collective bargaining agreement permitted his union to grieve the firing. An arbitrator
set aside the discharge and imposed a 30-day suspension. The district court upheld the arbitrator’s
decision. We affirm.
I.
Travis Moore works as a claims specialist for Blue Cross Blue Shield of Michigan. In
2019, he missed work on September 3, 4, and 5. On the last day, Blue Cross discharged him.
Moore’s union, the United Automobile Workers, took issue with the firing, and the parties
submitted the dispute to arbitration in accordance with the requirements of the relevant collective Case No. 22-1943, Blue Cross Blue Shield of Mich. v. UAW, Local 1781
bargaining agreement. Under those rules, the parties selected Betty Widgeon, an approved
arbitrator from the American Arbitration Association, to arbitrate the case. The parties asked the
arbitrator to determine whether Blue Cross had just cause to fire Moore.
As Moore and the union saw it, the firing was not justified. He claimed that he had already
been excused from work for the three consecutive days he missed, all leading up to his scheduled
time off for shoulder surgery and recovery. Prior to his absences, Moore left messages with his
manager saying he needed time off and he submitted some paperwork to the third-party
administrator on August 28, August 29, and September 3 about the upcoming disability leave and
the need for time off. He also talked with the third-party medical claims company and his doctor
to get his medical paperwork submitted. But the paperwork did not arrive until after he had been
fired, precluding him from filing it before the surgery and the three days immediately preceding
it. He also submitted a doctor’s note after the fact that supported the leave.
As Blue Cross saw it, Moore failed to do what he was supposed to do—report to work each
day or call his employer each of the three days he missed work. It noted that he no longer had
leave under the Family Medical Leave Act after August 20, 2019, and his disability leave for the
shoulder surgery did not start until September 6, 2019. Under these circumstances, Blue Cross
maintained that it had just cause to fire him under the labor agreement, which says that employees
“shall lose their seniority and employment rights” if they are “absent for three consecutive working
days without properly notifying [Blue Cross] of the reasons for such absence, unless it was not
reasonably possible to do so.” R.1-1 at 56–57.
2 Case No. 22-1943, Blue Cross Blue Shield of Mich. v. UAW, Local 1781
The arbitrator held a virtual hearing on November 19, 2020. During the hearing, the parties
had the opportunity to offer witnesses, cross-examine them, introduce exhibits, make arguments,
and submit post-hearing briefs. The arbitrator issued her decision on March 1, 2021. In that
decision, she agreed that Moore failed to follow the labor agreement by not supplying the proper
notice for each missed day of work. But she concluded that Blue Cross’s decision to fire Moore
“was excessive” and was not required by the collective bargaining agreement. R.14-6 at 6. She
downgraded Moore’s punishment to a 30-day suspension. Unhappy with the arbitrator’s decision,
Blue Cross asked the arbitrator to reconsider. The arbitrator initially changed her mind, but a few
weeks later she issued an order standing by her original decision.
Blue Cross filed this lawsuit in the Eastern District of Michigan, asking the court to vacate
or modify the arbitration award. See 29 U.S.C. § 185. Both parties filed motions for summary
judgment. The district court granted the union’s motion and enforced the arbitrator’s decision,
relying on the highly deferential review that applies to judicial review of arbitration decisions.
Blue Cross appealed.
II.
We review a labor arbitration decision under “one of the narrowest standards of judicial
review in all of American jurisprudence.” Tenn. Valley Auth. v. Tenn. Valley Trades & Lab.
Council, 184 F.3d 510, 515 (6th Cir. 1999) (quotation omitted). When an arbitrator is “resolving
any legal or factual disputes,” we uphold the arbitrator’s award as long as she was “arguably
construing or applying the contract.” Mich. Family Res., Inc. v. Serv. Emps. Int’l Union Loc.
517M, 475 F.3d 746, 753 (6th Cir. 2007) (en banc). In making that call, “we review outcomes,
not opinions.” Id. at 755. That means we “focus” on a “fair process, not substance, unless the
substance of the interpretation is so off the wall that it makes implausible the idea that the arbitrator
3 Case No. 22-1943, Blue Cross Blue Shield of Mich. v. UAW, Local 1781
was engaged in interpretation in the first place.” Zeon Chems., L.P. v. United Food & Com.
Workers, 949 F.3d 980, 982 (6th Cir. 2020).
As a matter of process, the arbitrator listened to testimony offered by both sides, considered
the exhibits that included the relevant labor agreements, and heard the parties’ factual and legal
arguments. In her six-page decision, she stated that the “crux of the matter” before her was “what
the [labor] agreement required” and “what was actually done” by Moore. R.1-3 at 4. The arbitrator
quoted from the labor agreement and concluded that Moore “failed to comply” with it by missing
three days of work without properly notifying Blue Cross. Id. at 6. But given “the totality of
circumstances,” including competing provisions of the labor agreement, she concluded that firing
Moore would be “excessive” and that a 30-day suspension was the more appropriate penalty. Id.
at 6. Part of that analysis turned on the finding that Blue Cross had departed from its customary
practices in this area by imposing multiple disciplinary actions for what amounted to a single string
of absences. See Beacon J. Publ’g. Co. v. Akron Newspaper Guild, Loc. No. 7, 114 F.3d 596, 601
(6th Cir. 1997) (“[a]rbitrators commonly utilize past practice” in contract interpretation). All told,
the arbitrator acknowledged that her job was to construe and apply the contract, and she proceeded
to do that in her opinion.
As a matter of substance, the arbitrator’s decision was not “so off the wall that it makes
implausible the idea that the arbitrator was engaged in interpretation.” Zeon Chems., 949 F.3d at
982. There are at least four relevant provisions in play. Start with § 8.11.3 of the labor agreement,
the main provision on which Blue Cross relies. It says that employees who miss “three consecutive
working days without properly notifying” Blue Cross “shall lose their seniority and employment
rights.” R.1-1 at 56–57. One reading of that provision would require that employees like Moore
be fired and thus forfeit all their employment rights. But other provisions make that reading less
4 Case No. 22-1943, Blue Cross Blue Shield of Mich. v. UAW, Local 1781
obvious. The Attendance Standards Policy says that a “[f]ailure to notify leadership during three
consecutive workdays may result in termination of employment.” R.13-5 at 2 (emphasis added).
In discussing discipline in general, moreover, the labor agreement permits firings only “for just
cause” and disfavors “the more severe disciplinary penalties of suspension and/or discharge . . .
until lesser penalties, aimed at correction, are first utilized.” R.1-1 at 69. The decision to reduce
Moore’s severe penalty to a lesser one shows an arbitrator focused not just on the language of
§ 8.11.3 but on trying to reconcile all of the relevant provisions, including the employer’s past
practices under the agreement. See Beacon J. Publ’g Co., 114 F.3d at 601. Even § 8.11.3 by the
way is not as clear as Blue Cross suggests. It leaves open the possibility that an employee absent
for a trio of days could lose some “employment rights” without losing all employment rights.
Otherwise, why worry about the reference to losing “seniority,” which normally contemplates
continued employment? At all events, the relevant question is not what we would do with this
interpretive dilemma. The parties after all bargained for an arbitrator to decide the case. Our only
job is the modest one of ensuring that no fraud occurred, that the matter was subject to arbitration,
and that the ultimate decision was not so “off the wall” as to deny that the arbitrator was engaged
in interpretation.
Blue Cross raises two counterarguments. It says that the arbitrator’s failure to cite and
analyze one provision (that employees “shall lose their seniority and employment rights”) shows
that she was not engaged in construing or applying the contract. R.1-1 at 56–57. True, “quot[ing]
from and analyz[ing] the pertinent provisions” is good evidence that an arbitrator was engaged in
construing and applying the contract. Mich. Family Res., 475 F.3d at 754. But doing so is not a
requirement. On the contrary, “arbitrators have no obligation to issue a written decision to justify
their awards,” much less an obligation to cite and quote every portion of the contract they are
5 Case No. 22-1943, Blue Cross Blue Shield of Mich. v. UAW, Local 1781
interpreting. Id. at 755. That is because “we review [arbitration] outcomes, not opinions.” Id.
The outcome, as just shown, is not so “egregious” that it must be “vacated.” Id. at 753.
Blue Cross next points to the arbitrator’s modified decision, where she changed her mind
and seemed to think that the labor agreement required that Moore be fired. Even though that
decision was subsequently vacated, Blue Cross claims that the arbitrator’s change of course
indicates that her initial decision was untethered from the labor agreement. We disagree. For one,
an initial change in course may confirm that the arbitrator had an admirable quality in decision
making: an open mind. The capacity to reconsider a decision by itself does not reveal any of the
telltale signs of an arbitration decision gone sorely awry. For another, even if the change of heart
and mind suggests an error in her decision, that does not suffice. “[J]udicial intervention should
be resisted even though the arbitrator made serious, improvident or silly errors in resolving the
merits of the dispute.” Mich. Family Res., 475 F.3d at 753 (quotation omitted).
We affirm.