The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
MEMORANDUM OPINION AND ORDER
An arbitrator issued an award in favor of Union Pacific Railroad Company (UP) in a union contract dispute with the Brotherhood of Locomotive Engineers and Trainmen (BLET). BLET has sued to overturn the award. Both parties have moved for summary judgment. For the reasons stated below, the Court grants UP's motion for summary judgment and denies BLET's motion.
In 1952, the Missouri Pacific Railroad Company entered into a Laying Off and Leave of Absence Agreement with two unions. That agreement binds the parties in this case as successors to the railroad and unions. The agreement has six sections, the first of which states that "[w]hen employees in engine service are permitted to lay off they must not be absent in excess of 30 days, except in case of sickness or injury, without having formal leave, in writing, granted in accordance with the provisions of this agreement." Pl. Ex. A. In this context, laying off refers to railroad employees taking leave.
In 2004, UP unilaterally adopted a Train Engineer and Yardman Attendance Policy. As amended in 2006, it states in part:
As a Union Pacific employee, you were hired for and are expected to protect your job assignment on a full-time basis. "Full-time" means being available to work your assignment, whether regular or extra, whenever it is scheduled to work. Assigned rest days, layover days, and agreement-provided compensated days off are available to you for personal business. In addition, reasonable personal lay-offs may be granted if the needs of service permit.
It is your responsibility to notify your manager, in advance of layoffs [sic] if possible, on personal or family issues that may affect your ability to work full time. Substantiating documentation is expected and may be required. However, notification and documentation alone do not excuse your responsibility to protect your job. You may be considered in violation of this policy regardless of the explanation offered if you are unable to work full time and protect all employment obligations.
Pl. Ex. G at 1. The policy further states that employees who are not working full-time will be identified by looking for employees who frequently take weekend, holiday, or personal lay offs, who frequently take sickness lay offs without documentation, who are not available as often as their peer employees, and who fail to show up for work assignments. The policy states that UP will investigate these employees and discipline them if warranted. An employee's first two violations of the policy result in no discipline beyond a formal warning, but a third violation within a set period of time results in termination of the employee.
In unrelated litigation regarding UP's compliance with the Family and Medical Leave Act (FMLA), BLET contended that UP had repudiated the 1952 agreement by instituting the attendance policy. BLET argued that the 1952 agreement provided that employees had a right to lay off whenever the service was protected, when there were enough engineers on call to meet the needs of the railroad. It also contended that before laying off, employees received permission to lay off from the crew caller, the employee who contacted engineers and assigned them to jobs and that UP could not later determine that those engineers who had been permitted to lay off had violated its attendance policy.
The parties agreed to have a single arbitrator serve as a Special Board of Adjustment under the Railway Labor Act (RLA) to determine whether the 1952 agreement and the attendance policy conflicted. See 45 U.S.C. § 153 First (I) & Second. The arbitrator issued an award on March 15, 2011. The arbitrator first recognized that railroad engineers often worked many hours in difficult jobs and that the federal government had acted to prevent accidents arising from engineer fatigue. He also recognized, however, that employers have a legitimate interest in preventing excessive absenteeism. He stated that management had the right "to implement policies to control excessive absenteeism, unless there is a negotiated contractual provision limiting that basic right in specific written terms." Pl. Ex. H at 25.
The arbitrator then considered the attendance policy. He noted that UP had stated the following regarding the policy:
On its face, therefore, the Attendance Policy is not designed to punish or prohibit occasional absences. It is not a violation of the Policy to lay off sick, or even to lay off on a weekend or holiday. Nor is it a violation of the Policy for an employee to be absent on a recurring basis, so long as he or she provides adequate justification for the absences. It is only employees who are repeatedly or regularly absent without cause or who otherwise abuse the lay off process that run afoul of the Policy. It is, in other words, a policy designed to prohibit only excessive absenteeism, not all absenteeism across the board.
Id. at 27 (emphasis in original; internal quotation marks omitted). The arbitrator "memorialized" this statement and noted that BLET could use the statement to defend its members if they were unfairly charged with violation of the policy. He also stated that, according to UP's own statement, the policy did not require employees to be available 100% of the time, as BLET had argued.
The arbitrator then addressed whether the 1952 agreement had expressly limited the right of UP to take actions to control absenteeism. It interpreted the agreement as "primarily a leave of absence rule." Id. at 32. Five of the agreement's six sections dealt with employees who had received formal leaves of absence, and section one, the section on which BLET relied, controlled when a formal leave of absence was required. The arbitrator ruled that the agreement specifically required engineers to get permission to lay off. Even though the arbitrator found that permission had always been granted by the crew caller, he concluded that nothing in the agreement made permission automatic whenever there were sufficient engineers available to fulfill UP's needs.
The arbitrator did rule that one aspect of UP's attendance policy was impermissible. He rejected, at least in part, UP's stated intention to compare the attendance of engineers with their peers to determine who was in violation of the attendance policy. The arbitrator determined that using a measure such as a shop average was "arbitrary and unreasonable," because the average could shift over time, could vary from place to place within the company, and did not provide for notice to employees. Id. at 42. Accordingly, the arbitrator concluded that UP could not use such a metric when determining which employees had failed to work full time.
After issuing the award, the arbitrator made a clarification on June 10, 2011 regarding whether engineers could be punished for laying off in good faith. The arbitrator reiterated his ruling that the attendance policy did not permit UP to discipline engineers who had excessive absences but also could show just cause. For those who could not show cause, however, the arbitrator ruled ...