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June 24, 1981

Lorraine PARSONS
BLUE RIDGE-WINKLER TEXTILES, a Division of Lehigh Valley Industries, Inc.

The opinion of the court was delivered by: TROUTMAN


The federal labor policy favoring arbitration as the mode which the parties to a collective bargaining agreement have selected to resolve disputes renders "narrow in the extreme" the permissible scope of judicial review of an arbitration award, *fn1" which will be sustained as long as it "draws its essence" from the collective bargaining agreement. *fn2" That is, whenever the arbitrator's conclusion can "in any rational way be derived from the agreement", a reviewing court will not disturb the award *fn3" unless the arbitrator manifestly disregards the agreement or ignores principles of contract construction or the law of the shop. *fn4" In the case at bar, petitioner seeks to vacate and/or modify an arbitration award which held that respondent terminated her employment for just cause consonant with the applicable bargaining agreement. Respondent now moves for summary judgment, which petitioner resists on the grounds that issues of material fact exist concerning the arbitrator's finding of just cause.

 Specifically, petitioner argues that the lateness policy under which respondent discharged her penalizes individuals and allows termination for de minimis infractions, fails to consider "reasonable and good" excuses or past service and work record, and tolerates facile circumvention thereof by dishonest employees. These issues of material fact, contends petitioner, preclude entry of summary judgment, which may be granted when the pleadings, depositions, answers to interrogatories and affidavits demonstrate that the moving party is entitled to judgment as a matter of law and that no genuine issues of material fact exist. *fn5" When the moving party properly supports the motion, the opposing party cannot rely upon the allegations or denials in the pleadings but must adduce specific facts showing a genuine issue for trial. *fn6"

 In the case at bar, the applicable collective bargaining agreement empowers the arbitrator to determine not only whether an employee violated a company rule *fn7" but also whether the rule itself is reasonable and applied fairly. *fn8" Petitioner complains that the rule permits less penalty for an employee who may be late a total of thirty-nine minutes within a consecutive two-week period than for an employee who may be late for three one-minute periods. Additionally, the rule does not allow the employee's length of service or work record to affect the disciplinary action meted out by respondent or allow the employee to explain tardiness. The arbitrator concluded that the rule was reasonable and that respondent applied it consistently and fairly to petitioner.

 Certainly this rule could have been drafted to allow for these considerations. Perhaps such a scheme would have been wiser, but courts do not pass upon the wisdom or advisability of employers' disciplinary rules for tardiness. *fn9" The lack of a rational basis, not inflexibility or austerity, makes action impermissibly arbitrary or capricious. *fn10" Uniform application of the rule to all employees also does not render it unfair. The arbitrator concluded that the rule had a rational basis. Even if this Court disagreed with the reasoning or conclusion of the arbitrator, the award cannot be set aside if it draws its essence from the parties' collective bargaining agreement. *fn11" Moreover, petitioner, through the union, bargained with respondent for the agreement allowing respondent to issue and amend rules and referring disputes to an arbitrator. In other words, petitioner bargained for the arbitrator's construction thereof. *fn12" The arbitrator did not manifestly disregard the terms of the agreement, *fn13" and he confined his award to the question presented to him. *fn14"

 Petitioner also complains that the arbitrator incorrectly admitted into evidence testimony concerning her absenteeism, which she considers unrelated to the question of her tardiness. *fn15" However, an arbitrator's evidentiary errors will warrant setting the award aside only where the action severely prejudices the rights of the parties and denies them a fair hearing. *fn16" Courts will uphold arbitration awards even if the arbitrator made erroneous findings or misinterpreted the law or the facts. *fn17" Even if the arbitrator erroneously admitted this testimony, his opinion clearly reflects that he based his conclusion upon petitioner's lateness. In fact, he made no mention of her absenteeism in his opinion. These principles also require rejection of petitioner's contention that the arbitrator improperly considered the fact that the union never filed a grievance contesting the tardiness rule as a whole. The record supports the arbitrator's conclusion not only that respondent relied upon a uniformly applied, reasonable rule disciplining employees for excessive tardiness but also that respondent discharged petitioner for just cause.

 Finally, even if the record did not justify the award, courts do not review the merits thereof. *fn18" Properly, courts address only the questions of whether a party procured the award by corruption, fraud or undue means, whether the arbitrator acted with partiality or corruption, whether the arbitrator appropriately conducted the hearing, and whether the arbitrator exceeded his powers or executed them imperfectly. *fn19" In the case at bar, petitioner claims that the arbitrator exceeded his powers or imperfectly executed them in that the award "sanctions and promotes improper and illegal conduct" by encouraging tardy employees to circumvent the lateness rule by taking off the entire day rather than reporting to work late. This argument again attacks the advisability of the rule and the merits of the award. To evaluate the merits of the award or to express disagreement with the wisdom of the lateness rule transmogrifies arbitration into a simple preliminary step in a time-consuming, tortuous path of litigation. *fn20" The arbitrator clearly did not exceed his powers. He based his decision and award squarely upon the collective bargaining agreement and considered only the submitted issue of petitioner's discharge. Accordingly, respondent is entitled to judgment as a matter of law and summary judgment will be entered in its favor.

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