SCHROEDER, Circuit Judge: This is a union appeal from a district court judgment vacating an arbitrator's award. It arises out of the same series of events considered in Howard P. Foley Co. v. International Brotherhood of Electrical Workers, Local 639, 789 F.2d 1421 (9th Cir. 1986). The case came before us in October of 1987, and by memorandum disposition we affirmed, 831 F.2d 303, stating that the majority opinion in Foley governed the outcome in this case.
Ainsworth, 960 F.2d at 941; Raiford v. Merrill Lynch, Pierce, Fenner Smith, Inc., 903 F.2d 1410, 1413 (11th Cir. 1990).See, e.g., Bruno's, Inc. v. United Food Commercial Workers, 858 F.2d 1529, 1532 (11th Cir. 1988) (arbiter could not draft new shopping cart inspection policy where contract allocated such authority to employer); Howard P. Foley Co. v. International Broth. of Elec. Workers, 789 F.2d 1421, 1423-24 (9th Cir. 1986) (absent collective bargaining provision empowering arbiter to award punitive damages, arbiter may not make punitive award). United Steelworkers v. USX Corp., 966 F.2d 1394 (11th Cir. 1992) does not establish any broader principle of review.
Cunard asserts even under federal law punitive damages are outside the authority of an arbitration panel. For this proposition it relies on a string of labor arbitration cases which suggest that when a contract does not expressly provide for punitive damages, an arbitrator may not make such an award. See e.g., Howard Foley Co. v. International Bhd. of Elec. Workers, Local 639, 789 F.2d 1421 (9th Cir. 1986). These cases are not relevant in the commercial arbitration context.
Other courts, while proceeding cautiously, have also vacated the rare arbitration decisions which are clearly not authorized by the collective bargaining agreement. Howard P. Foley Co. v. IBEW, 789 F.2d 1421, 1424 (9th Cir. 1986) (award of punitive damages vacated where it was unauthorized by the collective bargaining agreement); Riceland Foods, Inc. v. United Brotherhood of Carpenters, etc., 737 F.2d 758, 760 (8th Cir. 1984), cert. denied, 471 U.S. 1102, 105 S.Ct. 2327, 85 L.Ed.2d 845 (1985) (arbitrator lacked authority to review type of discipline imposed by management where agreement limited her to determining whether rule had been violated or not); Sears, Roebuck and Co. v. Teamsters, 683 F.2d 154, 156 (6th Cir. 1982), cert. denied, 460 U.S. 1023, 103 S.Ct. 1274, 75 L.Ed.2d 495 (1983) ("balancing test" employed by arbitrator vacated as conflicting with express term in bargaining agreement); Milwaukee Typo. Union v. Newspapers, Inc., 639 F.2d 386, 393-94 (7th Cir.), cert. denied, 454 U.S. 858, 102 S.Ct. 144, 70 L.Ed.2d 119 (1981) (arbitration decision imposing duty to bargain vacated where contract clause limited subjects open to bargaining); Magnavox Co. v. International Union of Elec., Radio and Mach. Wkr
Applying this principle, courts outside this circuit have held that arbitrators lack power to award punitive damages absent an express provision in the contract. See, e.g., Howard P. Foley Co. v. International Bhd. of Elec. Workers, Local 639, 789 F.2d 1421, 1424 (9th Cir. 1986); International Ass'n of Heat Frost Insulators Asbestos Workers, Local 34 v. General Pipe Covering, Inc., 792 F.2d 96, 100 (8th Cir. 1986); Baltimore Regional Joint Bd. v. Webster Clothes, Inc., 596 F.2d 95, 98 (4th Cir. 1979). I believe that our circuit's adherence to a different rule reflects a basic misunderstanding of the nature of punitive damages and the scope of arbitrators' remedial powers.
After a favorable arbitration decision, a worker can be reinstated with full back pay. If the collective bargaining agreement permits, an employee may even obtain punitive damages. Howard P. Foley Co. v. International Brotherhood of Elec. Workers, Local 639, 789 F.2d 1421, 1423-24 (9th Cir. 1986); see Miller Brewing Company v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1162-63 (7th Cir. 1984), cert. denied, 469 U.S. 1160, 105 S.Ct. 912, 83 L.Ed.2d 926 (1985). Unlike a successful arbitration claim, a successful state tort claim does not ensure reinstatement.
An award is said to "draw its essence" from the contract if it is based on the contractual language and the parties' conduct. Howard P. Foley Co. v. International Brotherhood of Electrical Workers, Local 639, 789 F.2d 1421, 1422-1423 (9th Cir. 1986). Only if the arbitrator dispenses "his own brand of industrial justice" should the award be vacated. Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361.
We review de novo a trial court's grant of summary judgment. Howard P. Foley Co. v. Int'l. Brotherhood of Electrical Workers, 789 F.2d 1421, 1422 (9th Cir. 1986). The task of our court is identical to that of the trial court, and all evidence and inferences must be viewed in the light most favorable to the non-moving party, to determine whether the district court correctly found that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law.
See Comp. Ex. 1 at 11. Cf. Howard P. Foley Co. v. IBEW Local 639, 789 F.2d 1421, 1423 (9th Cir. 1986) ("Although the `refusal of courts to review the merits of an arbitration award is the proper approach,' Enterprise Wheel, 363 U.S. at 596, 80 S.Ct. 1358, we must examine the award to determine if it is fundamentally at odds with the CBA because, according to the CBA, the arbitrator here did not have the `authority to disregard or modify plain and unambiguous provisions' of the agreement.") (record citation omitted). In turn, that means the award cannot be squared with CBA section 185, which limited Dematic's contractual obligation to provide insurance coverage to a period of three months (maximum) after a voluntary lay-off.
In a case for breach of a collective bargaining agreement, the award of compensatory damages depends on "a causal relationship between the company's violation of the agreement and the loss claimed by the employee." Howard P. Foley v. IBEW, Local 639, 789 F.2d 1421, 1423 (9th Cir. 1986) overruled on other grounds by Pullman Power Prods. Corp. v. Local 403, 856 F.2d 1211, 1212 (9th cir. 1988). In such a case, any award exceeding the monetary loss that the injured party suffered as a causal result of the contract breach is considered punitive.